07-08-2006 TRAER CREEK METRO DISTRICT NOTTINGHAM & PUDER DITCH REPAIR, MAINTENANCE & MANAGEMENT AGREEMENTAVON
C O L O R A D O
MEMORANDUM
970-748-4000
970-949-9139 Fax
Relay recognized
lvivwavon.orB
TO: Dan Leary, Traer Creek RP, LLC
FROM: Patty McKenny, Town Clerk,
Town of Avon of
RE: Documents for signature
DATE: July 8, 2006
Please find enclosed the following two documents which will require execution by your
company:
✓ Nottingham and Puder Ditch Repair, Maintenance and Management Agreement
This will required both your signature and Magnus Lindholm's signature.
✓ Lease Agreement between Traer Creek RP, LLC and the Town of Avon (Leasing
of Tract B)
This will require a signature of someone from Traer Creek RP, LLC
Any further questions, please contact me at 748-4035. Thank you.
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Post Office Box 97.5
400 Benchmark Road
Avon, Colorado 81620
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NOTTINGHAM AND PUDER DITCH REPAIR, 1IAINTFNANCE
AND NIANAGENIENT AGREEMENT
This Agreement is made anti entered into this" 'day ol, jA& 2006, by and
among the Town of Avon, a Colorado municipal corporation ("Avon"), Tracr Creek
itMetropolimn District, a quasi municipal corporation and political subdivision of the State
of Colorado (the "District") and EMD Limited Liability Company, a Colorado limited
liability company ("EMD").
RECITALS
A. WHEREAS, the Nottingham and Puder Ditch diversion point is located on
the north bank of the Eagle River at a point whence the south quarter corner of Section 8,
T. 5 S.. R. 81 W. of the 6th P.M. bears north 12° east 250 Peet and said ditch continues
generally in a northwesterly direction from its diversion point to the Town of Avon;
B. WHEREAS, Avon, the District and EMD own certain water rights
pertaining to the Nottingham and Puder Ditch as more particularly described in decrees
entered in Case Nos. 385, 963, 1193, W-3941, W-3664 and 97CW306.
C. WHEREAS, EMD's affiliate, "hraer Creek LLC, is developing The Village
(at Avail) project on property crossed by the Nottingham and Puder Ditch. Among other
uses, [fie ditch slay Supply 110111)otable Watff for lrrlgati011, flow through and recreational
purposes for the development and supply water to certain storage facilities;
D. WHEREAS, among other useS, Avon utilizes the Nottingham and Puder
Ditch to Supply water to Nottingham Lake which is located down-ditch from The Village
(at Avon) development;
E. WHEREAS, the Nottingham and Putter Ditch has sustained some
structural damage and is in need of repair, ongoing maintenance and new measuring
devices in order for the parties' to convey their respective water rights through the ditch;
and
F. WHEREAS, Avon, the District and ENID wish to enter into this
agreement in order to provide for the repair, maintenance and ongoing management of
ditch operations and the allocation of costs associated therewith.
AGREENtENT
NOW, 1FHEREFORE, for good and valuable consideration, the receipt and
sul`ficiency of which are hereby acknowledged, and the muhlal covenants Set forth herein,
the parties agree as follows:
1. Ditch Repairs. The p~uties recognize that a new flume has recently been
instal led in the Nottingham and Puder Ditch. In addition, sections of the ditch need to be
rev, orked in order to properly convey the parties' water rights, The parties may also wish
to repair the headptc and diversion facility. (The ileW 1lUme, ditch section and diversion
G(;() '620-1 / 5
facilities repairs are hereinal'ter referred to as the "Planned Repairs".) The parties agree
to meet each September to agree on a general repair plan for the Nottingham and Puder
Ditch for the following Spring ("Annual Repairs"). In the event of an emergency, either
party may take emergency steps to prevent flooding, damage to property, or damage to
the ditch ("Emergency Repairs") and the parties shall then nice( to discuss the situation
within forty-eight (48) hours. Expenses of Planned Repairs, Annual Repairs and
Emergency Repairs shall be divided between the parties as follows: Avon fifty percent
(50%); the District thirty percent (30%); and ETAD twenty percent (20%). Neither the
District or EMD shall be liable for ditch repair costs below the point where the ditch
leaves the western end of The Village (at Avon) property.
2. Routine Ditch Maintenance. The parties also agree to confer each Spring
on routine ditch maintenance ("Routine Ditch Maintenance") and to either complete suds
maintenance themselves or contract with a third party for such work. The expenses of
Routine Ditch Maintenance shall be divided between the parties as follows: Avon fifty
percent (50%); the District thirty percent (30%); and EMD twenty percent (201,/(?).
Neither the District or EMD shall be liable for ditch maintenance costs below the point
where the ditch leaves the western end of The Village (at Avon) property.
3. Obligation to Fund Annual Repairs and Routine Ditch Maintenance.
Subject to annual appropriations, the parties recognize and agree that each is obligated to
[lie extent of their respective cost allocations in paragraph 1 and paragraph 2 to
reasonably approve and fund the Annual Repairs and Routine Ditch Maintenance in order
to keep the clitch operable.
4. Ditch Improvements. The parties recognize, acknowledge and agree that
The Village (at Avon) development requires certain nonpotable water to be delivered
through the Nottingham and Puder Ditch for irrigation (including charging certain wet
well facilities), flow through, recreational purposes and to supply water storage facilities.
The parties agree to cooperate regarding the delivery of unused or flow through water
from the development back to the Eagle River. The parties will cooperate in utilizing
historic water drainage and discharge routes, the ditch system at the west end of the
development property, discharges to the Metcalf Ditch or, as a last resort, discharge
down-ditch to Nottingham Lake. The ditch shall not be used as a stormwater or drainage
collection system and water shall not be delivered down ditch to Nottingham Lake that
differs materially in quality from water historically delivered through the ditch unless
such water quality is attributable to the Eagle River which is the source of the ditch. The
cost oC any upgrades or repairs to such discharge facilities shall be [lie responsibility of
[lie District. The costs of any measuring devices or splitter boxes in the ditch at or above
the wcstern end of The Village (at Avon) property shall be divided between the parties as
follows: Avon fifty percent (50%); the District thirty percent (30%); and EMD twenty
percent (20%). With respect to any other major repairs, improvements or significant
work including costs in excess of 550,000 ("Significant Projects"), any party desiring
saute ("Initiating Party") shall give notice to tile other parties of the work required and
the estimated cost of such work ("Cost Estimate"). Prior to undertaking Significant
Projects, the parties shall agree on the scope, timing and allocation of costs ("Allocated
Share") for such project and each party shall deposit its share of the costs in accordance
{0002(20715
With t11e escrow procedure more specifically set forth below. Notwitllstauding anything
to the contrary set forth herein, the District and EIVID may unilaterally, and in their sole
discretion, relocate or pipe the ditch in areas within The Village (at Avon) development
so long as (i) the can•ying capacity of the ditch is not reduced below the current piped
capacity of the ditch; and (ii) the District and EMD pay the costs of such improvements.
5. Escrow Procedure. Upon the parties' agreement on the scope, timing and
Allocation of costs for Significant Project(s), each party shall deposit du cash, with an
escrow agent, agreed upon by the parties ("Escrow Agent"), 120% of its Allocated Share
to Undertake the Significant Project(s), based upon the Cost Estimate. The Escrow Agent
shall establish an escrow account for the purpose of funding the Significant Project(s)
("Escrow Account") to hold all cash deposits made under this Section, as well as interest
earned thereon. Interest earned on amounts on deposit shall be treated in all respects as
escrow funds. No portion thereof shall be subject to claims of the Escrow Agent's
general creditors. Cash deposits received under this Section shall not be commingled
with other funds. The parties will require the Escrow Agent to: (i) acknowledge that the
District and Town are "political subdivisions" and that the Escrow Account is a "public
deposit" as such terms are defined in the Public Deposit Protection Act of the State of
Colorado (the "Act") and (ii) establish and maintain the Escrow Account with a "public
depository" as defined in tine Act.
a. General Disbul:Senlent. The Initiating Party shall be entitled to
request a withdrawal of Funds from the Escrow Account for payment of the costs for the
Significant Project(s), from time to time, in accordance with and subject to the following
procedure. The Initiating Party shall copy the other parties on all communications with
the Escrow Agent. All invoices and payment requests prepared in connection with the
Significant Project(s) shall be delivered to the Initiating Party by the general contractor
and other contractors and materials suppliers, as applicable. Upon the Initiating Party's
approval of each payment request or invoice, as applicable, the Initiating Party shall
transmit the request to Escrow Agent. Proulptly upon receipt of approval of each
payment request or invoice, Escrow Agent shall withdraw funds from the Escrow
Account and make payment directly to the contractor or materials supplier, as applicable,
less any retainage 1111ou11t, upon receipt of: (i) the payment request or invoice and (ii) an
executed mechanics lien release in a form approved by the Initiating Party. The Initialing
Party shall secure tile other parties' written consent to withdraw funds from the Escrow
Account in excess of line itenn limits contained in the Cost Estimate. The Initiating Party
shall provide to the Escrow Agent a copy of the other parties' written consent when
submitting a request to withdraw funds that exceeds the line item limits contained in the
Cost Estimate.
b. Final Disbursement. If the Significant Project(s) are completed
and the Escrow ,Agent is still holding funds in the Escrow Account, Escrow Agent shall
disburse said funds to the parties based upon each party's Allocated Share within ten (10)
clays after receipt of: (i) in 11te case of the District or the Town, certification of the District
or the Town, as applicable, that publication of notice of final payment has [)Celt 11111dc in
accordance with statute: (id) written approval of the final payment rcquCSt by tite other
parties: and (iii) executed mechanics lien waiver(s).
106026'07r51
C. Retainage. The parties agree to comply with all statutory relairiage
provisions relating to the Significant Project(s), as applicable.
d. Audit. 'File parties shall have the right, at their respective sole
expense and at reasonable times, to conduct or to cause to be conducted an audit of the
Escrow Account and all disbursements for the Significant Project(s).
C. Expenses Relating to Escrow. The Escrow Agent shall be entitled
to deduct from the Escrow Aecoulit all administrative fees of the Escrow Agent relating
to the Escrow Account so long as the administrative fees and expenses are in accordance
with Escrow Agent's fee schedule agreed to by the parties.
6. Prior Agreement. EMD and Avon's predecessor in interest, the Avon
Metropolitan District, entered into a ditch repair and maintenance agreement for the
Nottingham and Puder Ditch dated July 26, 1994. The parties agree that this agreement
shall supersede and fully replace the 1994 ditch repair and maintenance agreement in all
respects and the 1994 agreement steall, if recorded, be released.
7. Accounting for Nonpotable Uses at The Village (at Avon). The District
shall be responsible for installing necessary meters and otherwise accounting for
nonpotable water use at The Village (at Avon) development. The District shall provide
such accounting to the Upper Eagle Regional Water Authority to be incorporated into the
accounting for the augmentation plan in Case No. 97CW306.
8. Term. The initial term of this agreement shall be from the date of this
agreement until April 1, 2007. Any party may terminate this agreement by providing
written notice to the other parties prior to April 1, 2007. Thereafter, this agreement shall
automatically renew itself on an annual basis on April lst of each year unless any party
provides notice of termination prior to any April 1 St annual renewal date.
9. Access. Nothing in this agreement shall be construed or interpreted as
granting an easement, license or right of access over the real property of any other party
or any of its affiliated parties.
10. Notices. All notices, requests, consents and other communications
pertaining to this agreement shall be transmitted in writing and shall be deemed duly
given within 3 clays of mailing or when actually received by any party if hand-delivered,
at their addresses below Orally subsequent addresses provided to the other parties in
writing:
Notice to Avon:
Town Manager
Town of Avon
P.O. Box 975
400 Benchmark Road
Avon, CO 81620
110026267 i 5 j 4
With copy to:
John W. Dunn, Esq.
Dunn & Associates
P. O. Box 7717
Avon, CO 81620
Notice to District:
Traer Creek Metropolitan District
Attention: President
P.O. Box 640
Vail, CO 81658
With copies to:
Darlene Sisneros
McGeady Sisneros, P.C.
1675 Broadway, Suite 2100
Denver, CO 80202
Richard A. Johnson
Johnson & Repucci UP
2521 Broadway, Suite A
Boulder, CO 80304
Notice to EiMD:
EtNID Limited Liability Company
Attention: Magnus Lindholm
P.O. Box 640
Vail, CO 81658
With copy to:
Richard A. Johnson
Johnson & Repucci UP
2521 Broadway, Suite A
Boulder, CO 80304
It. Covenant. This agreement is intended and shall be a covenant running
with and burdening the parties' respective interests in the Nottingham and Puder Ditch
and small bind and inure to the benefit of the J Mu-ties' respective successors and assigns.
1nn~szazu~ i 51
12. iMiscellaneous.
a. This agreement is not to be construed as a contractual waiver of
any immunities or defenses provided by the Governmental Immunity Act, C.R.S. §§'24-10-
10.1 et seq., or other statutes or common law,
b. The financial obligations of Avon and the District, and of any
governmental successor of any of the partieS, pursuant to this agreement shall be subject
to the annual budgeting and appropriation of funds therefore in accordance with Colorado
law.
c. This agreement may be amended from time to time by
amendments made by the parties in written form and executed in the same manner as this
agreement.
d. Each person executing this agreement represents and warrants that
lie or she has been duly authorized by their party to execute this agreement and has
authority to bind said party to the terms and conditions hereof.
Executed and effective as of the (late first set forth above.
TOWN OF AVON, a
Colorad 'i-mul~cipal corporation
By: a
L
Name: "RoAALD c Gt)oL
Title: IkI14YOe
TRAER CREEK METROPOLITAN
DISTRICT, a quasi-municipal
corporation and political subdivision
of the State of Color cto
BY:
~v
Nang:" Daniel J,_I,6ary
Title: President
END Limited Liability Company,
a Colorado limited liability company
By: LAVA CORPORATION, a Colorado
corporation, its Manager
B uv ,
Name: Magus Lindholm
Title: President
j 60020 207 151 6
STATE OF COLORADO )
)ss.
)
COUNTY OF
T)< fo going was acknowledged before o ethosAvon a Colo i~ i unit 001 by
Tow
as (Yl of the
corporation, o behalf of the mpany•
Witness my hand
t .y Pu lie
61(k
My commission cxpii s:
\ QO
ofi Ct)\*-C
STATE OF COLORADO
My Commiss~~~iros
COUNTY OF )
The foregoing was acknowledged before me this ,~1 day of • ii .l' , 2006, by
Daniel J. Leary, as President of Traer Creek Metropolitan District, a quas -municipal
corporation and political subdivision of the State of Colorado, on behalf of the company.
Winless my hand and official seal. ,
Notary,
iblic _
My commission expires:
Aft
STATE OF COLORADO ) ;4 G 'o
)ss. 9 8 i..~ .~Qo
COUNTY OF r° )pF C04C
Vim
I-AN
The foregoing was acknowledged before me this F106, by
Magnus Lindli silent of Lava Corporation, a Colorado corporate n, Manager
of EMD Li ~•,§1. ,f rpany, a Colorado limited liability company, on behalf of
the Corp o _ 4 t4, Y.
ci
itgess my hand anti off-cial seal.
13,
(P% 0
3Q Notary Public
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