11-24-2009 Nottingham and Puder DitchAgreement for Payment Concerning the Nottingham and Puder Ditch
THIS AGREEMENT FOR PAYMENT ( "Agreement ") is made effective as of the a�=
day of November, 2009 by and between the Town of Avon, a Colorado home rule municipal
corporation ( "Avon "), Traer Creek Metropolitan District, a Colorado Title 32 Special District
( "TCMD "), and EMD Limited Liability Company, a Colorado limited liability company
( "EMD ").
WHEREAS Avon desires to install a pipe and perform other work on the Nottingham and
Puder Ditch ( "Ditch ") as described in the plans attached as Exhibit A ( "Project ") for the purpose
of conveying water under water rights owned by Avon, and Avon further desires to receive a
cost contribution from TCMD and EMD who also convey water through the Ditch under water
rights owned by those entities; and
WHEREAS the parties have disagreed about the extent and characterization of the Project
proposed by Avon, but agree to resolve any disagreement concerning cost contributions from
TCMD and EMD for the Project through this Agreement; and
WHEREAS the parties have agreed to a cost allocation for the Project of 19.23% for TCMD
and EMD collectively and 80.77% for Avon; and
WHEREAS the construction contract with Ewing Construction for the Project ( "Construction
Contract ") is not to exceed ONE HUNDRED AND SIXTY FOUR THOUSAND DOLLARS
($164,000.00).
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. Avon shall proceed with the Project in accordance with Exhibit A hereto and the
Construction Contract of which Exhibit A is a part, and shall provide to TCMD and EMD an
invoice of actual final construction costs incurred by Avon within five (5) days of final
completion and acceptance of the Project in accordance with the General Conditions of the
Construction Contract ( "Final Completion ").
2. TCMD and EMD shall pay a total of 19.23% of the actual final construction costs
incurred by Avon for the Project, which total amount shall not exceed THIRTY ONE
THOUSAND FIVE HUNDRED THIRTY -SEVEN DOLLARS ($31,537.00), within twenty two
(22) days of receipt of the final cost invoice for the Project. As between TCMD and EMD,
TCMD shall pay 11.87% (61.73% of 19.23 %) and EMD shall pay 7.36% (38.27% of 19.23 %) of
the total actual final construction costs for the Project.
3. Avon assumes the risks and responsibilities for willful and wanton acts and acts of
negligence by Avon and its agents and contractors associated with the construction of the Project
through final completion of the construction of the Project and through the two year warranty
period commencing upon final settlement and payment to the contractor by Avon, which
warranty period shall in no event extend beyond December 31, 2012 (the "Warranty Period ").
Avon further agrees to indemnify, defend and hold harmless TCMD and EMD during the
Warranty Period from any costs, liabilities, and attorneys' fees which may be incurred by TCMD
and EMD for any claim or legal proceeding which may be brought by third parties in connection
Page 1 of 2
with the construction of the Project. Nothing in this Agreement shall be otherwise construed to
waive, limit, or modify any governmental immunity that may be available by law to the Town,
its officials, employees, contractors, or agents, or any other person acting on behalf of the Town
and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
4. Upon Final Completion of the Project and Avon's receipt of payment in full from TCMD
and EMD, each of the parties to this Agreement waives and releases any rights it may have to
make claims or bring legal proceedings against another party to this Agreement in connection
with improvements, repairs, or maintenance of the Ditch arising through the date of this
Agreement except for breach hereof, and further waives and releases all other rights under the
law to seek any additional cost contribution by the other parties for the Project.
5. In the event that TCMD and /or EMD do not pay in full within twenty two (22) days of
receipt of the final invoice for actual construction costs incurred, this Agreement shall
immediately and automatically terminate and nothing herein shall be deemed to waive, restrict or
abrogate Avon's rights to seek cost contribution through any statutory, legal, equitable or any
other process recognized by law.
6. This Agreement is not intended to determine the ownership or use of water rights or ditch
rights of the respective parties or any future duties or obligations regarding improvements,
repairs or maintenance of the Ditch.
7. Nothing contained in this Agreement is intended to or shall create a contractual
relationship with, cause of action in favor of, or claim for relief for, any third party. Absolutely
no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit
from this Agreement is an incidental and unintended beneficiary only.
TOWN OF AVON:
By: C
Ronald Wolfe, Mayor
EMD LIMITED LIABILITY COMPANY:
By:
Lava Corporation, a Colorado corporation, its Manager,
by Michael Lindholm, President
TRAER CREEK METROPOLITAN DISTRICT:
By:
D n Leary, Pre dent
Page 2 of 2
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