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04-22-2003 TRAER CREEK METROPOLITAN DISTRICT WOLFORD MOUNTAIN RESERVOIR CONTRACTJOHNSON 6 REPUCCI LLP ATTORNEYS AND COUNSELORS AT LAw 1401 WALNUT STREET, SUITE 500 BOULDER, COLORADO 80302 TELEPHONE 303-442-1900 BOULDER TELEFAX 303-442-0191 WINTER PARK Richard A. Johnson wwwj-rlawcom rajohnson@j-rlaw.com April 22, 2003 Glenn E. Porzak Porzak Browning & Bushong LLP 929 Pearl Street, Suite 300 Boulder, CO 80302 Gary L. Greer Sherman & Howard, LLC 633 17th Street, Suite 3000 Denver, CO 80202 Re: Traer Creek Metropolitan District/Wolford Mountain Reservoir Contract Gentlemen: Enclosed are copies of fully executed assignments of the Traer Creek Metropolitan District ("Traer Creek") Wolford Mountain Reservoir Contract from the Colorado River Water Conservation District ("CRWCD"), which have been consented to by the CRWCD. The first assignment is from Traer Creek to the Town of Avon and the second assignment is from the Town of Avon to the Upper Eagle Regional Water Authority. We are sending copies of each assignment directly to Ms. McKenny, Town Clerk for the Town of Avon, at her request. Sincer yours, i & Richar A. Johnson EnclosZatty cc: McKenny, Avon Town Clerk (w/enclosures) Shane Bohart (w/enclosures) Eric Applegate (w/enclosures) 101 17/traer Post Office Box 975 400 Benchmark Road Avon, Colorado 81620 970-748-4000 AVON I C O L O R A D O 970=949-9139 Fax 970-845-7708 TTY MEMO TO:. Richard A. Johnson, Johnson. & Repucci LLP FROM: Patty McKenny, Town Clerk, Town of Avon cc: Upper Eagle Regional Water Authority Norm Wood, Engineer, Town of Avon RE: Traer Creek Metropolitan District Wolford Mountain Reservoir Contract DATE: February 27, 2003 Please find enclosed the following executed agreements per your request: 1. Assignment of Contract from Traer Creek Metro District to the Town of Avon 2. Assignment of Contract. from the Town of Avon to the. Upper Eagle -Regional Water Authority Please forward copies to me at the address below upon execution of these contracts by the appropriate. parties. Thank you. Patty McKenny, Town Clerk Town of Avon PO Box 975 Avon, CO 81620 l JOHNSON 6 REPUCCI LLP ATTORNEYS AND COUNSELORS AT LAW 1401 WALNUT STREET. SUITE 500 BOULDER. COLORADO 80302 BOULDER TELEPHONE 303-442-1900 WINTER PARK TELEFAX 303-442-0191 Richard A. Johnson wwwj-rlaw.com rajohnson@j-daw.com February 20, 2003 Via Hand Delivery Norman Wood Town of Avon 400 Benchmark Road Avon, CO 81620 Re: Traer Creek Metropolitan District/Wolford Mountain Reservoir Contract Dear Norm: Enclosed are two partially executed copies of the Assignments of the Colorado River Water Conservation District Water Supply Contract from Traer Creek Metropolitan District to the Town of Avon and two copies of the Assignments from the Town of Avon to the Upper Eagle Regional Water Authority. If the Avon Town Council consents to these assignments at the meeting scheduled for February 25, 2003, please have both copies of each Assignment executed by the Town of Avon and return them to me. Thank you for your assistance. Please feel free to contact me with any questions. Very truly yours, Rich r A. Johnson Enclosures GREC IEOVIEDD r~ 2 4 2003 9061 Community Development COLORADO RIVER WATER CONSERVATION DISTRICT Protecting Western Colorado Water Since 1937 February 11, 2003 Ruth B. Johnson, Esq. Johnson & Repucci, LLP 1401 Walnut Street, Suite 500 Boulder, Colorado 80302 RE: TRAER CREEK METROPOLITAN DISTRICT: WATER SUPPLY CONTRACT (CW03005) Dear Ruth: I am enclosing a fully-executed Water Supply Contract ("Contract") between the River District and Traer Creek Metropolitan District. We have received full payment for Project Year July 2002 through June 2003 with the receipt of Traer Creek's check in the amount of $8,100.00 for 10.8 acre-feet of Colorado River Supply. Thereafter, on or before April 151 of each year, the annual O&M payment shall be paid to the River District for the next upcoming Project Year. Please contact Cheryl Dunlap, our accountant, at 945-8522 with any payment or billing questions. Sincerely, Lorra L. Nichols Legal Assistant/Paralegal Enclosure cc: Dave Merritt, w/o enc. Cheryl Dunlap, w/o enc. SUITE #200.201 CENTENNIAL STREET P.O. BOX 1120/GLENWOOD SPRINGS, COLORADO 81602 (970) 945-8522 • FAX (970) 945-8799 • www.crwcd.org CW03005 ASSIGNMENT OF CONTRACT FOR VALUE RECEIVED, TRAER CREEK METROPOLITAN DISTRICT (Assignor) hereby assigns, transfers and sets over to the TOWN OF AVON (Assignee) all rights, title and interest held by the Assignor in and to the following described contract: Water Supply Contract with Colorado River Water Conservation District, No. CW03005, dated February 3 , 2003. The Assignee hereby assumes and agrees to pay and perform all the remaining and executory obligations of the Assignor under the Contract and to comply with all terms of the Contract. The Assignee is a Colorado municipal corporation empowered to provide water, fire protection and recreational services to its residents, and by contract to properties outside its boundaries, which has agreed to provide water service to the property originally represented to the Colorado River Water Conservation District to be served with the Contracted Water. The Assignee hereby agrees that the Contracted Water shall be used in accordance with the terms of the Contract and the Colorado; River Water Conservation District's Water Marketing Policy and in accordance with Colorado law concerning water rights and water use and all decrees related to the Contracted Water, including but not limited to Case No. 97CW306, Water Division 5, and amendments thereto. The Assignor warrants and represents that said Contract is in full force and effect and is fully assignable. The Assignor warrants that it has full right and authority to transfer said Contract and that the contract rights herein transferred are free of lien, encumbrance or adverse claim. The Assignor further warrants that the Contract is without modification, and remains on the terms contained. In the event that the Town of Avon and the Upper Eagle Regional Water Authority fail to provide water service to the Property (as that term is defined in the Agreement dated November 4, 2002, among the;Eagle-Vail Metropolitan District, the Town of Avon, the Upper Eagle Regional Water Authority and Traer Creek Metropolitan District), excepting temporary cessation of water service due to reasonable maintenance requirements or emergency conditions, the Town of Avon will re-assign the Contract to Traer Creek Metropolitan District upon sixty(60) days' written notice. This Assignment shall be binding upon and inure to the benefit of theparties, their successors and assigns. Assignment of Contract Page 2 of 3 CW03005 Pursuant to paragraph 8.a. of the Contract, the new name, address, and telephone number for notices shall be: Norman Wood Town of Avon P.O. Box 975 Avon, CO 81620 Phone: (970) 748-4000 Fax: (970) 949-5749 Richard A. Johnson, Esq. Johnson & Repucci LLP 1401 Walnut Street, Suite 500 Boulder, CO 80302 Phone: (303) 442-1900 Fax: (303) 442-0191 Gary L. Greer, Esq. Sherman & Howard LLC 633 17th Street, Suite 3000 Denver, Colorado 80202 Phone: (303) 299-8322 Fax: (303) 298-0940 This Assignment is conditioned upon the consent thereto by the Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise. This Assignment shall be deemed effective upon the date of execution of a Consent of Assignment bythe Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise. TRAER CREEK METROPOLITAN DISTRICT Date: By: X W-~ Nam : Shc,wt t cho.er Title: TOWN OF AVON Date: a I d~ 103 By Nai Tit. Assignment of Contract Page 3 of 3 CONSENT OF ASSIGNMENT CW03005 The Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise, as a party to Water Supply Contract No. CW03005, dated February 3 , 2003, hereby consents to the assignment of the rights and obligations of Traer Creek Metropolitan District (Assignor) under said Contract to the Town of Avon (Assignee), subject to the terms and conditions stated above in the Assignment of Contract. COLORADO RIVER WATER CONSERVATION DISTRICT, acting by and through its Colorado River Water Projects Enterprise: Date: L 63 l-By: Steph~i M. Mathis, Vice President ATTEST: R. Eric Kuhn, General Manager CW03005 WATER SUPPLY CONTRACT This Contract is made between the COLORADO RIVER WATER CONSERVATION DISTRICT (herein the "River District"), a political subdivision of the State of Colorado acting by and through its Colorado River Water Projects Enterprise, and TRAER CREEK METROPOLITAN DISTRICT (herein "Contractor") effective as of the date of the River District's execution hereof indicated below. RECITALS A. The River District is authorized to contract to deliver water for beneficial use from River District water projects pursuant to provisions of C.R.S. § 37-46-101, et seq. (herein "River District Organic Act"). B. The River District is the owner and operator of the Wolford Mountain Reservoir Project located on the Muddy Creek drainage near Kremmling, Colorado, having obtained necessary decrees from the District Court in and for Colorado Water Division No. 5 (herein "Water Court") and permits from governmental agencies, and the River District is entitled to deliveries of water from Ruedi Reservoir under its Contracts with the U.S. Bureau of Reclamation. C. The River District's Board of Directors has adopted a Water Marketing Policy, as revised on December 6, 2002, to provide for the use of water available from the River District's sources of supply pursuant to contracts, and that Water Marketing Policy is to be implemented through the River District's Water Projects Enterprise. D. Contractor has a need for wholesale water supply, demonstrated in its submittals to the River District pursuant to the Water Marketing Policy's contracting process, in the amount of 10.8 acre feet annually for municipal/industrial purposes which beneficial uses will be accomplished by Contractor generally in the vicinity of Avon, Colorado, by surface and ground water diversions from or within the Eagle River drainage tributary to the Colorado River. E. Contractor has reviewed the Water Marketing Policy and is aware of the "Hydrology Assumptions" which are part of that Policy and is satisfied, based on its review and investigations, that Contractor legally and physically can make use for its intended purposes of the Contracted Water which is the subject of this Contract and that such use will comply with the Water Marketing Policv and the Project's permits and decrees. DEFINITIONS In this Contract certain terms will have definitions as stated below: WATER SUPPLY CONTRACT Page 2 of 9 CW03005 • The "River District" means the Colorado River Water Conservation District created and existing pursuant to the River District Organic Act defined in Recital No. A and acting by and through its Colorado River WaterProjects Enterprise which is currently described and memorialized in the Resolution of the Colorado River Water Conservation District's Board of Directors dated January 17, 2001. • The "Project" means the River District's "Colorado River Supply" from (1) Wolford Mountain Reservoir, for which storage water right decrees were obtained by the River District in Cases No. 87CW283, 95CW281 and 98CW237 District Court for Colorado Water Division No. 5, and for which additional storage water right decrees may be obtained in the future by the River District in other cases; and (2) the River District's contractual right to water deliveries from Ruedi Reservoir. • "Agricultural" means the use of water for commercial production of agricultural crops and livestock and other uses consistent with any right decreed for irrigation purposes, which uses are made on a parcel of land of at least ten acres. • "Municipal and Industrial" means the use of water by individuals, cities, towns, public or quasi-public districts, private corporations, homeowners associations, or other entities for domestic, municipal, and miscellaneous related purposes as those terms are traditionally and commonly construed, including the use of water for purposes of producing or processing a non-agricultural product or service for sale, including without limitations, such uses as manufacturing, mining, milling, land reclamation, golf course irrigation, snowmaking, and non-hydroelectric power generation; and including the use of water for environmental mitigation purposes associated with such uses; but excepting the agricultural use of water defined herein. • "Contracted Water" means the water which is the subject of this Contract which is to be released and delivered by the River District and used by Contractor. The Contracted Water is 10.8 acre feet of Colorado River Supply available during each Project Year during the term of this Contract, subject to the provisions hereof, for Contractor's use without right of carryover of any amount not used in any Project Year. • "Project Year" means a period of time from July I through and including the subsequent June 30. • "Water Marketing Policy" means the RiverDistrict's policy statement as revised and readopted December 6, 2002, and as the same may be amended in the future. • "Project Hydrology Assumptions" or "Hydrology Assumptions" means the document attached as Appendix "A" to the Water Marketing Policy adopted on December 1, 1995. WATER SUPPLY CONTRACT Page 3 of 9 AGREEMENTS CW03005 The foregoing Recitals and Definitions are incorporated herein as agreements between the River District and Contractor. River District Water Delivery Obliuations and Responsibilities. a. Delivery. The River District will deliver the Contracted Water at the outlet works of the Contracted Water's sources of supply into the receiving natural streams in quantities provided herein. Unless otherwise agreed to by the River District's General Manager based upon written request of Contractor, the River District will make releases for Contractor, based upon Contractor's written schedule of anticipated demand, adjusted as necessary by the ongoing status of river administration vis-a-vis the priority status of Contractor's diversions. Contractor shall be solely responsible after delivery for the legal and physical delivery and use of the Contracted Water. b. Deliveryy Contingencies. The River District's delivery of Contracted Water shall be subject to Contractor's payments pursuant to paragraph 3 below and the provisions for curtailment of deliveries in paragraph 5 below. C. Water Measurements. The River District shall measure at the outlet works of the Contracted Water's sources of supply all Contracted Water delivered from the account of Contractor and shall notify the Division Engineer of Colorado Water Division No. 5 of the date, time and amount of Contracted Water released and delivered pursuant to this Contract. Copies of such records shall be provided to Contractor upon its request therefor. d. Water Ouality. The River District shall have no obligation to Contractor or any other person regarding and makes no warranties or representations to Contractor concerning the quality of Contracted Water delivered pursuant to this Contract by releases of raw water to natural streams. e. Maintenance of Facilities. The River District shall use its best efforts to maintain in good working condition the water storage and release facilities of the Contracted Water. f. Withholding of Delivery. The River District may withhold deliveries of Contracted Water in the event of Contractor's nonpayment for Contracted Water or any other breach of this Contract by Contractor. Such remedy shall not be the River District's exclusive remedy in the event of any such breach. WATER SUPPLY CONTRACT Page 4 of 9 CW03005 g. Delivery from Primary or Alternate Sources. The River District will deliver the Contracted Water from the sources of Colorado River Supply described herein which will best meet the Contractor's legal need to satisfy calls by senior water rights or the Contractor's physical need for any direct delivery of Contracted Water to Contractor's diversions. Subject to meeting those objectives, the River District reserves the right to provide all or any of the Contracted Water to Contractor from alternate reservoirs for Contractor's use. Any releases from altemate facilities shall not diminish the supply ofContracted Water or impair Contractor's legal or physical ability to make use of Contracted Water or to meet its obligations under any judicial or administrative approval described in paragraph 2.d. 2. Contractor's Water Use Obligations and Responsibilities. a. Scheduling of Use. Contractor has provided the River District a preliminary written schedule of its anticipated monthly demands for Contracted Water during the current Project Year. The schedule provided by Contractor in its application forthis Contract shall serve as the schedule to be used until it is modified in a written notice given by Contractor to the River District on or before June 1" annually, or as necessary in response to river administration of the Contractor's diversions. The schedule shall identify the volume of any Contracted Water anticipated by Contractor not to be needed by it during any particular Project Year. Contractor shall update said schedule periodically during the Project Year as conditions require and give the River District written notice of all such revisions. b. Carriage Losses. Contractor shall bear carriage losses, either five percent (5%) of delivery or such other amount as is determined by the Division Engineer for Colorado Water Division No. 5, from the point of delivery of Contracted Water to Contractor's point(s) of use and/or exchange or augmentation. C. Use Per Contract and Law. Contractor's use of Contracted Water shall in all instances be in accordance with the terms of this Contract and the Water Marketing Policy and in accordance with Colorado law concerning water rights and water use and all decrees related to the Contracted Water. Contractor is not authorized to apply for or secure any change in the water rights for or associated with any of the sources of supply of the Contracted Water. d. Legal Approvals. Contractor shall at its sole expense adjudicate a plan or plans for augmentation or exchange and/or secure administrative approvals of any temporary substitute supply plans which are needed for Contractor to use its Contracted Water. If Contractor intends to make any such applications for any augmentation or exchange plan(s) or substitute supply plan(s), Contractor shall submit the proposed application to the River District within a reasonable time before Contractor proposes to file such application. The River District shall review for written approval such WATER SUPPLY CONTRACT Page 5 of 9 CW03005 applications before they are submitted or filed, and the River District's approval shall not be unreasonably withheld. The River District may in its discretion become a co- applicant in the prosecution of any such applications for the purpose of protecting its water rights and related policies. Contractor shall cause to be included in any final decree of the Water Court a provision conditioning Contractor's use of the Contracted Water on the existence of a River District contract. e. Limitation on Disposition. Contractor shall not sublet, sell, donate, loan or otherwise dispose of any of its rights to this Contract or to Contracted Water without written notice to and the prior written approval of the River District. The River District's approval of such disposition shall be granted in all instances in which the Contractor is transferring the water system which supplies the Contracted Water, or a permanent transfer of the Contract is to be made to a successor in interest of Contractor by reason of the transfer of the title or other legal right to use the property served by the Contracted Water, or where the transfer is made to an entity such as a homeowners' association or special district created to serve the property originally represented to the River District to be served with the Contracted Water. f. Contractor's Water Rates. Contractor may charge its water customers who are supplied with Contracted Water such rates and charges as are permitted by Colorado law. g. Nondiscrimination. Contractor shall not discriminate in the availability of or charges for any water service or water supply made available pursuant to or based upon the Contracted Water on account of race, color, religion, or national origin or any other criteria prohibited under state or federal law. h. Accounting of Use. Contractor shall maintain an accounting of its use of all water used or supplied by Contractor on form(s) acceptable to the River District specifically for the purpose of enabling the River District to prove the use of River District Project water rights and to administer and operate the Project and water right decrees and/or administrative approvals related to Contractor's use of Contracted Water. Contractor shall submit its accounting forms and records to the River District promptly upon request and shall assist the River District as it may reasonably request in presenting and/or verifying such evidence of use in court or before administrative agencies by testimony of Contractor orits authorized and informed officers or agents. 3. Contractor's Payments. Upon execution of this Contract, Contractor shall pay to the River District the total sum of $8,100.00, being $750.00 for each acre foot of 10.8 acre feet of Colorado River Supply (the "Contracted Water"). Thereafter, on or before each April 151 during the term of this Contract, Contractor shall pay the River District $20.00 for each acre foot of Contracted Water, which amount represents Project Operation and Maintenance ("O&M"). The annual O&M payment of Contractor shall be adjusted on April 1, 2003 and WATER SUPPLY CONTRACT Page 6 of 9 CW03005 every five (5) years thereafter based on the cumulative change in the Boulder-Denver Consumer Price Index ("All Items"). 4. Contract Term. a. Subject to the provisions of subparagraph 6.b below, the initial term of this Contract shall be for a period of up to forty (40) years from the date of the execution of this Contract. b. Upon the completion of the initial term and subject to the provisions of subparagraph 6.b below, Contractor shall have the right to renew this Contract for a secondary term of thirty-five (35) years, which shall commence upon the expiration of the initial term. If Contractor desires to so renew this Contract, it shall provide the River District written notice of its intention to do so at least ninety (90) days prior to the expiration of the initial term of this Contract. Thereafter, and prior to the expiration of the initial term, the River District and Contractor shall execute a supplemental agreement of renewal in a form mutually acceptable to the River District and Contractor. If such notice of intention to renew is not provided and such supplemental agreement is not executed, no renewal term shall commence. Upon renewal, the following terms of this Contract shall be subject to renegotiation: i. The charge for and adjustment of operation and maintenance may be increased or modified based upon the adequacy of the charge and its modification under this Contract to cover the River District's operation and maintenance costs actually experienced during the initial tern. ii. The need or appropri ateness of an y conservation plan concern ing Contractor's use of Contracted Water as determined by the River District. Water Shortage. In the event that the River District is unable, because of either legal or physical reasons, to deliver any or all of the full amount of water contracted from the Project, including the Contracted Water, the River District reserves the right to apportion the Project's available water among its several contractors, including Contractor, in the manner provided in Section 6 of the Water Marketing Policy. 6. Contract Termination. a. Termination by River District. WATER SUPPLY CONTRACT Page 7 of 9 CW03005 The River District may terminate this Contract for any violation or breach of the terms of this Contract by Contractor, including Contractor's failure to pay timely any sum or amount due under this Contract within thirty (30) days after receiving written notice from the River District of such breach. ii. The River District also may terminate this Contract if, in its discretion any judicial or administrative proceedings initiated by Contractor as contemplated in subparagraph 2.d above, threaten the River District's authority to contract for delivery of Project Water or the River District's water rights, permits, or other interests associated with the Project. iii. The River District may terminate this Contract if its legal ability to deliver Contracted Water is materially impaired or is eliminated because of the termination or adverse modification of permits, decrees or other authorizations which are needed to deliver the Contracted Water. b. Adjustment of Payments. If the River District terminates this Contract under subparagraph 6.(a)(ii) or (iii), it shall repay to Contractor a portion of the Contractor's payment which represents the pro rata amount of the remaining term of the Contract (40 years or 35 years). 7. Miscellaneous/Standard Provisions. a. Notices. i. All notices required or appropriate under or pursuant to this Contract shall be given in writing mailed or delivered to the parties at the following addresses: River District: Colorado River Water Conservation District P. O. Box 1120 201 Centennial Street, Suite 204 Glenwood Springs, Colorado 81602 Attention: Secretary / General Manager Phone: (970) 945-8522 Fax: (970) 945-8799 WATER SUPPLY CONTRACT Page 8 of 9 Contractor: Traer Creek Metropolitan District Shane Bohart, President P. O. Box 640 Vail, CO 81658 Phone: (970) 949-6776 with copy to: Richard A. Johnson, Esq. Johnson & Repucci, LLP 1401 Walnut Street, Suite 500 Boulder, CO 80302 Phone: (303) 442-1900 Fax: (303) 442-0191 CW03005 ii. Either party may, by written notice given in accordance with this provision, change the address to which notices to it shall be mailed or delivered. b. Amendments. No amendment, modification, or novation of this contract or its provisions and implementation shall be effective unless documented in writing which is approved and executed by both parties with the same formality as they have approved and executed this Contract -~Z DATE: c~J A TEST: (rte Richard Eric Kuhn, Secretary COLORADO RIVER WATER CONSERVATION DISTRICT acting by and through its Colorado River Water Pro' cts nterprise By. Step n M. Mathis, Vice President TRAER CREEK METROPOLITAN DISTRICT By: WATER SUPPLY CONTRACT Page 9 of 9 VERIFICATION STATE OF COLORADO ) ) ss. COUNTY OF ) CW03005 The foregoing Water Supply Contract was subscribed and sworn to before me by Stephen M. Mathis as Vice President of the Colorado River Water Conservation Dis 'ct, acting by and through its Colorado River Water Projects Enterprise, this 3r day of , 2003. Witness my hand and official seal. My Commission Expires: S f-a5" C' 1 Not Public z < STATE OF COLORADO ss. t COUNTY OF GARFIELD ) The foregoing Water Supply Contract was subscribed and sworn to before me by Richard Eric Kuhn as Secretary of the Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise, this qth day of FIE! hruG'~ , 2003. Witness my hand and official seal. My Commission Expires: STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing Water Supply Contract was subscribed and sworn to before me by Shane Bohart as President of Traer Creek Metropolitan District, this -h' day of ~vnjW , 2003. Witness my hand and official seal. My xpi g' ?OOy 4~pAY PUBI Notary ERIC APPLEGATE Nom; •`O ~TF O 'Do C My Commission Expires 0612812003 t CW03005 ASSIGNMENT OF CONTRACT FOR VALUE RECEIVED, THE TOWN OF AVON (Assignor) hereby assigns, transfers and sets over to UPPER EAGLE REGIONAL WATER AUTHORITY (Assignee) all rights, title and interest held by the Assignor in and to the following described contract: Water Supply Contract with Colorado River Water Conservation District, No. CW03005, dated February 3 , 2003. The Assignee hereby assumes and agrees to pay and perform all the remaining and executory obligations of the Assignor under the Contract and to comply with all terms of the Contract. The Assignee is a quasi-municipal corporation, established pursuant to an Intergovernmental Agreement dated September 18, 1984, among Eagle-Vail Metropolitan District, Arrowhead Metropolitan District, the Town of Avon, Beaver Creek Metropolitan District, Berry Creek Metropolitan District and Edwards Metropolitan District, which has agreed to provide water service to the property originally represented to the Colorado River Water Conservation District tobe served with the Contracted Water. The Assignee hereby agrees that the Contracted Water shall be used in accordance with the terms of the Contract and the Colorado River Water Conservation District's Water Marketing Policy and in accordance with Colorado law concerning water rights and water use and all decrees related to the Contracted Water, including but not limited to 97CW306, Water Division 5, and amendments thereto. The Assignor warrants and represents that said Contract is in full force and effect and is fully assignable. The Assignor warrants that it has full right and authority to transfer said Contract and that the contract rights herein transferred are free of lien, encumbrance or adverse claim. The Assignor further warrants that the Contract is without modification, and remains on the terms contained. In the event that the Upper Eagle Regional Water Authority fails to provide water service to the Property (as that term is defined in the Agreement dated November 4, 2002, among the Eagle- Vail Metropolitan District, the Town of Avon, the Upper Eagle Regional Water Authority and Traer Creek Metropolitan District), excepting temporary cessation of water service due to reasonable maintenance requirements or emergency conditions, theUpper Eagle Regional Water Authority will re-assign the Contract to the Town of Avon upon sixty (60) days' written notice. This Assignment shall be binding upon and inure to the benefit of the parties, their successors and assigns. Pursuant to paragraph 8.a. of the Contract, the new name, address, and telephone number for notices shall be: Assignment of Contract Page 2 of 3 Dennis Gelvin Upper Eagle Regional Water Authority 846 Forest Road Vail, CO 81657 Phone: (970) 476-7480 Fax: (970) 476-4089 Norman Wood Town of Avon P.O. Box 975 Avon, CO 81620 Phone: (970) 748-4000 Fax: (970) 949-5749 Gary L. Greer, Esq. Sherman & Howard LLC 633 17th Street, Suite 3000 Denver, Colorado 80202 Phone: (303) 299-8322 Fax: (303) 298-0940 CW03005 Glenn E. Porzak, Esq. Porz ak Browning & Bush ong LLP 929 Pearl Street, Suite 300 Boulder, CO 80302 Phone: (303) 443-6800 Fax: (303) 443-6864 Richard A. Johnson, Esq. Johnson & R epucc i LLP 1401 Walnut Street, Suite 500 Boulder, CO 80302 Phone: (303) 442-1900 Fax: (303) 442-0191 This Assignment is conditioned upon the consent thereto by the Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise. This Assignment shall be deemed effective upon the date of execution of a Consent of Assignment bythe Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise. THE TOWN OF AVON Date: I a5 `03 By: Name: 0.1gE CT li E-4 oL 5 Title: M cg- UPPER EAGLE REGIONAL WATER AUTHORITY Date: C) 5 By: Name: Re e3C P--r "E'e Title: CNA P9 6 5/ Assignment of Contract Page 3 of 3 CW03005 CONSENT OF ASSIGNMENT The Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise, as a party to Water Supply Contract No. CW03005, dated February 3 , 2003 hereby consents to the assignment of the rights and obligations of the Town of Avon (Assignor) under said Contract to Upper Eagle Regional Water Authority (Assignee), subject to the terms and conditions stated above in the Assignment of Contract. COLORADO RIVER WATER CONSERVATION DISTRICT, acting by and through its Colorado River Wg-e~cts Enterprise: Date: / - By: _ S l1/h M. Mathis, Vice President ATTEST: R. Eric Kuhn, General Manager CW03005 WATER SUPPLY CONTRACT This Contract is made between the COLORADO RIVER WATER CONSERVATION DISTRICT (herein the "River District"), a political subdivision of the State of Colorado acting by and through its Colorado River Water Projects Enterprise, and TRAER CREEK METROPOLITAN DISTRICT (herein "Contractor") effective as of the date of the River District's execution hereof indicated below. RECITALS A. The River District is authorized to contract to deliver water for beneficial use from River District water projects pursuant to provisions of C.R.S. § 37-46-101, et seq. (herein "River District Organic Act"). B. The River District is the owner and operator of the Wolford Mountain Reservoir Project located on the Muddy Creek drainage near Kremmling, Colorado, having obtained necessary decrees from the District Court in and for Colorado Water Division No. 5 (herein "Water Court") and permits from governmental agencies, and the River District is entitled to deliveries of water from Ruedi Reservoir under its Contracts with the U.S. Bureau of Reclamation. C. The River District's Board of Directors has adopted a Water Marketing Policy, as revised on December 6, 2002, to provide for the use of water available from the River District's sources of supply pursuant to contracts, and that Water Marketing Policy is to be implemented through the River District's Water Projects Enterprise. D. Contractor has a need for wholesale water supply, demonstrated in its submittals to the River District pursuant to the Water Marketing Policy's contracting process, in the amount of 10.8 acre feet annually for municipal/industrial purposes which beneficial uses will be accomplished by Contractor generally in the vicinity of Avon, Colorado, by surface and ground water diversions from or within the Eagle River drainage tributary to the Colorado River. E. Contractor has reviewed the Water Marketing Policy and is aware ofthe "Hydrology Assumptions" which are part of that Policy and is satisfied, based on its review and investigations, that Contractor legally and physically can make use for its intended purposes of the Contracted Water which is the subject of this Contract and that such use will comply with the Water Marketing Policy and the Project's permits and decrees. DEFINITIONS In this Contract certain terms will have definitions as stated below: WATER SUPPLY CONTRACT Page 2 of 9 CW03005 • The "River District" means the Colorado River Water Conservation District created and existing pursuant to the River District Organic Act defined in Recital No. A and acting by and through its Colorado River Water Projects Enterprise which is currently described and memorialized in the Resolution of the Colorado River Water Conservation District's Board of Directors dated January 17, 2001. • The "Project" means the River District's "Colorado River Supply" from (1) Wolford Mountain Reservoir, for which storage water right decrees were obtained by the River District in Cases No. 87CW283, 95CW281 and 98CW237 District Court for Colorado Water Divi sion No. 5, and for which additiona 1 storage water right decrees may be obtained in the future by the River District in other cases; and (2) the River District's contractual right to water deliveries from Ruedi Reservoir. • "Agricultural" means the use of water for commercial production of agricultural crops and livestock and other uses consistent with any right decreed for irrigation purposes, which uses are made on a parcel of land of at least ten acres. • "Municipal and Industrial" means the use of water by individuals, cities, towns, public or quasi-public districts, private corporations, homeowners associations, or other entities for domestic, municipal, and miscellaneous related purposes as those terms are traditionally and commonly construed, including the use of water for purposes of producing or processing a non-agricultural product or service for sale, including without limitations, such uses as manufacturing, mining, milling, land reclamation, golf course irrigation, snowmaking, and non-hydroelectric power generation; and including the use of water for environmental mitigation purposes associated with such uses; but excepting the agricultural use of water defined herein. • "Contracted Water" means the water which is the subject of this Contract which is to be released and delivered by the River District and used by Contractor. The Contracted Water is 10.8 acre feet of Colorado River Supply available during each Project Year during the term of this Contract, subject to the provisions hereof, for Contractor's use without right of carryover of any amount not used in any Project Year. • "Project Year" means a period of time from July 1 through and including the subsequent June 30. • "Water Marketing Policy" means the River District's policy statement as revised and readopted December 6, 2002, and as the same may be amended in the future. • "Project Hydrology Assumptions" or "Hydrology Assumptions" means the document attached as Appendix "A" to the Water Marketing Policy adopted on December 1, 1995. WATER SUPPLY CONTRACT Page 3 of 9 AGREEMENTS CW03005 The foregoing Recitals and Definitions are incorporated herein as agreements between the River District and Contractor. 1. River District Water Delivery Obligations and Responsibilities. a. Delivery. The River District will deliver the Contracted Water at the outlet works of the Contracted Water's sources of supply into the receiving natural streams in quantities provided herein. Unless otherwise agreed to by the River District's General Manager based upon written request of Contractor, the River District will make releases for Contractor, based upon Contractor's written schedule of anticipated demand, adjusted as necessary by the ongoing status of river administration vis-a-vis the priority status of Contractor's diversions. Contractor shall be solely responsible after delivery for the legal and physical delivery and use of the Contracted Water. b. Deliveryy Contingencies. The River District's delivery of Contracted Water shall be subject to Contractor's payments pursuant to paragraph 3 below and the provisions for curtailment of deliveries in paragraph 5 below. C. Water Measurements. The River District shall measure at the outlet works of the Contracted Water's sources of supply all Contracted Water delivered from the account of Contractor and shall notify the Division Engineer of Colorado Water Division No. 5 of the date, time and amount of Contracted Water released and delivered pursuant to this Contract. Copies of such records shall be provided to Contractor upon its request therefor. d. Water Oualitv. The River District shall have no obligation to Contractor or any other person regarding and makes no warranties or representations to Contractor concerning the quality of Contracted Water delivered pursuant to this Contract by releases of raw water to natural streams. e. Maintenance of Facilities. The River District shall use its best efforts to maintain in good working condition the water storage and release facilities of the Contracted Water. f. Withholding of Delivery. The River District may withhold deliveries of Contracted Water in the event of Contractor's nonpayment for Contracted Water or any other breach of this Contract by Contractor. Such remedy shall not be the River District's exclusive remedy in the event of any such breach. WATER SUPPLY CONTRACT Page 4 of 9 CW03005 g. Delivery from Primary or Alternate Sources. The River District will deliver the Contracted Water from the sources of Colorado River Supply described herein which will best meet the Contractor's legal need to satisfy calls by seniorwater rights or the Contractor's physical need for any direct delivery of Contracted Water to Contractor's diversions. Subject to meeting those objectives, the River District reserves the right to provide all or any of the Contracted Water to Contractor from alternate reservoirs for Contractor's use. Any releases from alternate facilities shall not diminish the supply of Contracted Water or impair Contractor's legal or physical ability to make use of Contracted Water or to meet its obligations under any judicial or administrative approval described in paragraph 2.d. 2. Contractor's Water Use Obligations and Responsibilities. Scheduling of Use. Contractor has provided the River District a preliminary written schedule of its anticipated monthly demands for Contracted Water during the current Project Year. The schedule provided by Contractor in its application for this Contract shall serve as the schedule to be used until it is modified in a written notice given by Contractor to the River District on or before June 151 annually, or as necessary in response to river administration of the Contractor's diversions. The schedule shall identify the volume of any Contracted Water anticipated by Contractor not to be needed by it during any particular Project Year. Contractor shall update said schedule periodically during the Project Year as conditions require and give the River District written notice of all such revisions. b. Carriage Losses. Contractor shall bear carriage losses, either five percent (5%) of delivery or such other amount as is determined by the Division Engineer for Colorado Water Division No. 5, from the point of delivery of Contracted Water to Contractor's point(s) of use and/or exchange or augmentation. C. Use Per Contract and Law. Contractor's use of Contracted Water shall in all instances be in accordance with the terms of this Contract and the Water Marketing Policy and in accordance with Colorado law concerning water rights and water use and all decrees related to the Contracted Water. Contractor is not authorized to apply for or secure any change in the water rights for or associated with any of the sources of supply of the Contracted Water. d. Legal Approvals. Contractor shall at its sole expense adjudicate a plan or plans for augmentation or exchange and/or secure administrative approvals of any temporary substitute supply plans which are needed for Contractor to use its Contracted Water. If Contractor intends to make any such applications for any augmentation or exchange plan(s) or substitute supply plan(s), Contractor shall submit the proposed application to the River District within a reasonable time before Contractorproposes to file such application. The River District shall review for written approval such WATER SUPPLY CONTRACT Page 5 of 9 CW03005 applications before they are submitted or filed, and the River District's approval shall not be unreasonably withheld. The River District may in its discretion become a co- applicant in the prosecution of any such applications for the purpose of protecting its water rights and related policies. Contractor shall cause to be included in any final decree of the Water Court a provision conditioning Contractor's use of the Contracted Water on the existence of a River District contract. e. Limitation on Disposition. Contractor shall not sublet, sell, donate, loan or otherwise dispose of any of its rights to this Contract or to Contracted Water without written notice to and the prior written approval of the River District. The River District's approval of such disposition shall be granted in all instances in which the Contractor is transferring the water system which supplies the Contracted Water, or a permanent transfer of the Contract is to be made to a successor in interest of Contractor by reason of the transfer of the title or other legal right to use the property served by the Contracted Water, or where the transfer is made'to an entity such as a homeowners' association or special district created to serve the property originally represented to the River District to be served with the Contracted Water. f. Contractor's Water Rates. Contractor may charge its water customers who are supplied with Contracted Water such rates and charges as are permitted by Colorado law. g. Nondiscrimination. Contractor shall not discriminate in the availability of or charges for any water service or water supply made available pursuant to or based upon the Contracted Water on account of race, color, religion, or national origin or any other criteria prohibited under state or federal law. h. Accountin of f Use. Contractor shall maintain an accounting of its use of all water used or supplied by Contractor on form(s) acceptable to the River District specifically for the purpose of enabling the River District to prove the use of River District Project water rights and to administer and operate the Project and water right decrees and/or administrative approvals related to Contractor's use of Contracted Water. Contractor shall submit its accounting forms and records to the River District promptly upon request and shall assist the River District as it may reasonably request in presenting and/or verifying such evidence of use in court or before administrative agencies by testimony of Contractor or its authorized and informed officers or agents. 3. Contractor's Payments. Upon execution of this Contract, Contractor shall pay to the River District the total sum of $8,100.00, being $750.00 for each acre foot of 10.8 acre feet of Colorado River Supply (the "Contracted Water"). Thereafter, on or before each April ` during the term of this Contract, Contractor shall pay the River District $20.00 for each acre foot of Contracted Water, which amount represents Project Operation and Maintenance ("O&M"). The annual O&M payment of Contractor shall be adjusted on April 1, 2003 and WATER SUPPLY CONTRACT Page 6of9 CW03005 every five (5) years thereafter based on the cumulative change in the Boulder-Denver Consumer Price Index ("All Items"). 4. Contract Term. a. Subject to the provisions of subparagraph 6.b below, the initial term of this Contract shall be for a period of up to forty (40) years from the date of the execution of this Contract. b. Upon the completion of the initial term and subject to the provisions of subparagraph 6.b below, Contractor shall have the right to renew this Contract for a secondaryterm of thirty-five (35) years, which shall commence upon the expiration of the initial term. If Contractor desires to so renew this Contract, it shall provide the River District written notice of its intention to do so at least ninety (90) days prior to the expiration of the initial term of this Contract. Thereafter, and prior to the expiration of the initial term, the River District and Contractor shall execute a supplemental agreement of renewal in a form mutually acceptable to the River District and Contractor. If such notice of intention to renew is not provided and such supplemental agreement is not executed, no renewal term shall commence. C. Upon renewal, the following terms of this Contract shall be subject to renegotiation: i. The charge for and adjustment of operation and maintenance may be increased or modified based upon the adequacy of the charge and its modification under this Contract to cover the River District's operation and maintenance costs actually experienced during the initial term. ii. The need or appropriateness of any conservation plan concern ing Contractor's use of Contracted Water as determined by the River District. 5. Water Shortage. In the event that the River District is unable, because of either legal or physical reasons, to deliver any or all of the full amount of water contracted from the Project, including the Contracted Water, the River District reserves the right to apportion the Project's available water among its several contractors, including Contractor, in the manner provided in Section 6 of the Water Marketing Policy. 6. Contract Termination. a. Termination by River District. WATER SUPPLY CONTRACT Page 7 of 9 CW03005 The River District may terminate this Contract for any violation or breach of the terms of this Contract by Contractor, including Contractor's failure to pay timely any sum or amount due under this Contract within thirty (30) days after receiving written notice from the River District of such breach. ii. The River District also may terminate this Contract if, in its discretion any judicial or administrative proceedings initiated by Contractor as contemplated in subparagraph 2.d above, threaten the River District's authority to contract for delivery of Project Water or the River District's water rights, permits, or other interests associated with the Project. iii. The River District may terminate this Contract if its legal ability to deliver Contracted Water is materially impaired or is eliminated because of the termination or adverse modification of permits, decrees or other authorizations which are needed to deliver the Contracted Water. b. Adjustment of Payments. If the River District terminates this Contract under subparagraph 6.(a)(ii) or (iii), it shall repay to Contractor a portion of the Contractor's payment which represents the pro rata amount of the remaining term of the Contract (40 years or 35 years). 7. Miscellaneous/Standard Provisions. a. Notices. i. All notices required or appropriate under or pursuant to this Contract shall be given in writing mailed or delivered to the parties at the following addresses: River District: Colorado River Water Conservation District P. O. Box 1120 201 Centennial Street, Suite 204 Glenwood Springs, Colorado 81602 Attention: Secretary / General Manager Phone: (970) 945-8522 Fax: (970) 945-8799 WATER SUPPLY CONTRACT Page 8 of 9 Contractor: Traer Creek Metropolitan District Shane Bohart, President P. O. Box 640 Vail, CO 81658 Phone: (970) 949-6776 with copy to: Richard A. Johnson, Esq. Johnson & R epucc i, LLP 1401 Walnut Street, Suite 500 Boulder, CO 80302 Phone: (303) 442-1900 Fax: (303) 442-0191 CW03005 ii. Either party may, by written notice given in accordance with this provision, change the address to which notices to it shall be mailed or delivered. b. Amendments. No amendment, modification, or novation of this contract or its provisions and implementation shall be effective unless documented in writing which is approved and executed by both parties with the same formality as they have approved and executed this Contract DATE: 32123 A EST: Richard Eric Kuhn, Secretary COLORADO RIVER WATER CONSERVATION DISTRICT acting by and through its Colorado River Water Pro' is nterprise By: Step n M. Mathis, Vice President TRAER CREEK METROPOLITAN DISTRICT By: WATER SUPPLY CONTRACT Page 9 of 9 VERIFICATION STATE OF COLORADO ) ) ss. COUNTY OF ) CW03005 The foregoing Water Supply Contract was subscribed and sworn to before me by Stephen M. Mathis as Vice President of the Colorado River Water Conservation Dis .ct, acting by and through its Colorado River Water Projects Enterprise, this 3r day of 2003. Witness my hand and official seal. My Commission Expires: S f-LZ5 STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) Not Public The foregoing Water Supply Contract was subscribed and sworn to before me by Richard Eric Kuhn as Secretary of the Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise, this day of bYUC'~-I , 2003. Witness my hand and official seal. My Commission Expires: STATE OF COLORADO ) ) ss. COUNTY OF EWj t_l ) The foregoing Water Supply Contract was subscribed and sworn to before me by Shane Bohart as President of Traer Creek Metropolitan District, this ~OYL~day of 3ONvraT 2003. Witness my hand and official.seal. 0612812003