TC Council Packet 10-24-2002TOWN OF AVON
SPECIAL COUNCIL MEETING AGENDA
OCTOBER 24, 2002 - 8:00 AM
1. Call to Order / Roll Call
2. Citizen Input
3. * Ordinances
4. Resolutions
5. Unfinished Business
6. New Business
a. The Village (at Avon) Water Lease & Water Sublease
7. Town Manager Report
8. Town Attorney Report
9. Mayor Report
10. Other Business
11. Consent Agenda
12. Adjournment
Memo
To: Honorable Mayor and Town Council
Thru: Bill Efting, Town Manager
From: Norm Wood, Town Engineer
Date: October 23, 2002
Re: The Village (at Avon) Water Lease & Water Sublease
Summary: The following materials are attached for your information and
review:
1. Current copy of Water Lease with minor revisions as recommended by
Gary Greer, Town water attorney and including all exhibits.
2. Current copy of Water Sublease with minor revisions as recommended by
Gary Greer, Town water attorney and including all exhibits.
3. Pages 1- 4 of Water Service Agreement between E-V Metro District, EMD
LLC and the Upper Eagle Regional Water Authority.
4. A copy of First Amendment to Water Service and Tap Fee Allocation
Agreement between E-V Metro District, Town of Avon, EMD LLC and the Upper Eagle
Regional Water Authority.
We will also have copies of The Village (at Avon) Augmentation Plan (Case No.
97CW306) and agreements for Assignment and Assumption of Water Service Agreement
and Related Water Rights between EMD LLC and Traer Creek LLC and between Traer
Creek LLC and Traer Creek Metropolitan District available for background information if
needed.
Town Manager Comments:
IAEngineering\Avon Village\I.0 General\Agreements\Water Lease Memo-I.Doc
WATER LEASE
This Water Lease ("Lease") is entered into this day of , 2002, between the
Traer Creek Metropolitan District, a quasi municipal corporation and political subdivision of the
State of Colorado ("Traer Creek District") and the Town of Avon, a Colorado municipal corporation
("Avon").
RECITALS
Whereas, EMD Limited Liability Company, a Colorado limited liability company ("EMD
LLC"), the Upper Eagle Regional Water Authority ("the Authority"), and the Eagle-Vail
Metropolitan District (the "District") entered into a Water Service Agreement dated May 15, 1997
("Service Agreement"). Paragraph 2(b) provided that EMD LLC agreed to lease a portion of the
specified water rights in the attached Exhibit 2 ("the Subject Water Rights") to the Authority as a
condition for water service to 1,789 acres of land owned by EMD LLC as described in the attached
Exhibit 1 (the "Property"). EMD LLC thereafter transferred its interest in the Property to Traer
Creek LLC.
Whereas, EMD LLC, the District, Avon, and the Authority entered into the First Amendment
to Water Service and Tap Fee Allocation Agreement dated June 22, 1999 (the "Amendment").
Section 2(B) of the Amendment substituted Avon for the District. Section 2(H) of the Amendment
amended the lease provision in Paragraph 2(b) of the Service Agreement whereby EMD LLC agreed
to lease without cost to Avon for sublease without cost to the Authority the portion of the Subject
Water Rights sufficient to replace the consumptive use associated with the development of the
Property as ultimately decreed by the Water Court.
Whereas, in Case No. 97CW306 the Water Court determined the historical consumptive use
of the Subject Water Rights to be 252.4 acre feet per year. The Water Court also determined that the
expected total maximum annual amount of consumptive use associated with the development of the
Property is 181 acre feet per year, based on a projected build-out of a certain size and certain water
use and consumptive use assumptions contained in Paragraph 8 D through 8 G and Schedules A, B
and C of the court's decree. The Water Court further determined that the annual replacement supply
of water under the Augmentation Plan would be made up from 155.8 acre feet of available historical
consumptive use credits attributable to the Subject Water Rights during the historical irrigation
season (May-October) and from 24.8 acre-feet of water to be released from storage during the non-
irrigation season (November-April).
Whereas, certain of EMD LLC's rights, duties and obligations under the Service Agreement
and Amendment were assigned to Traer Creek LLC, pursuant to that certain Assignment and
Assumption of Water Service Agreement and Related Water Rights dated November 29, 2001.
Whereas, certain of Traer Creek LLC's rights, duties and obligations under the Service
Agreement and Amendment were assigned to Traer Creek District pursuant to that certain
Assignment and Assumption of Water Service Agreement and Related Water Rights dated
November 29, 2001.
Whereas, certain water and water rights, ditch and ditch rights, consumptive use credits, and
reservoirs and storage rights were transferred by Quit Claim deeds from EMD LLC to Traer Creek
LLC, and from Traer Creek LLC to Traer Creek District.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Lease. Traer Creek District hereby leases to Avon all of Traer Creek District's right,
title and/or interests (beneficial or other interests) in and to the following (collectively, the "Leased
Water Rights"):
(a) the water rights described in Exhibit 2 identified under the column heading
"Amount Leased", together with all associated rights and benefits of the plan for augmentation and
exchange decreed by the District Court in and for Water Division No. 5 in Case No. 97CW306 (the
"Augmentation Plan") including, without limitation, the 22 acre-feet of water storage rights in
Nottingham Reservoir and the combined total of 27 acre-feet of conditional water storage rights for
The Village (at Avon) Lakes Nos. 1 and 2 described in Paragraph 8 C thereof, together with all
associated changes of water rights decreed therein;
(b) the 155.8 acre feet of historical consumptive use credits identified in the
Augmentation Plan and described in the attached Exhibit 3;
(c) the 30 acre-feet of water attributed to 300 shares of Class A, Series 2 Eagle Park
Reservoir Company stock as described in the Service Agreement (the "Eagle Park Shares");
(d) an additional 9.8 acre feet of storage water from Wolford Mountain Reservoir,
Nottingham Reservoir, or another storage facility acceptable to Avon and the Authority ("the
Additional Storage Water") to provide sufficient water rights to serve the Property. In addition,
unless Nottingham Reservoir water is provided, the Augmentation Plan needs to be amended to
include the Additional Storage Water. Traer Creek District agrees to secure, pay the cost of, and
assign to Avon for subsequent lease to the Authority, the Additional Storage Water, within 3 months
of the date of this Lease. Thereafter, the Authority shall use its best efforts to amend the
Augmentation Plan, if necessary, to include the Additional Storage Water as an additional source of
augmentation water. Traer Creek District shall promptly reimburse Avon and the Authority for all
costs and fees (including legal, engineering, and court fees) incurred by the each of them in securing
such an arrangement; and
(e) all diversion ditches, pipelines, headgates and structures, pumps, casings and
other improvements and easements associated or used in connection with the above described water
C R2'R
rights (including without limitation rights of access thereto) as become necessary from time to time
to provide water service to the Property, reserving unto Traer Creek District equal rights of access
and use of the same. The parties recognize, acknowledge and agree that in connection with the
development of the Property such structures may need to be modified, piped, buried or otherwise
improved at Traer Creek District's sole cost and discretion.
It is mutually expected and intended by the parties that this Lease will fulfill Traer Creek District's
obligation under Section 2H of the Amendment referred to herein above.
2. Term. The term of this Lease shall be perpetual, provided however, that in the event that
the Authority or Avon defaults in providing water service to the Property (excepting temporary
cessation of water service due to reasonable maintenance requirements or emergency conditions)
pursuant to and in accordance with the Service Agreement and the Amendment, Traer Creek District
may terminate this Lease upon sixty (60) days written notice to Avon and the Authority unless within
such sixty day period Avon and/or the Authority cures such default. Upon termination of this Lease the
right, title and interest of the Authority and Avon in the "Leased Water Rights" shall be released to
Traer Creek District.
3. Payment. The Leased Water Rights shall be leased to Avon without charge. The
consideration for this Lease is the water service provided pursuant to the Service Agreement and the
Amendment.
4. Miscellaneous.
(a) This Lease may not be amended except by a written document signed by the parties
which expressly references this Lease.
(b) This Lease shall be construed under and governed by the laws of the State of
Colorado.
(c) In the event of any litigation regarding the parties' rights and obligations under this
Lease, the prevailing party shall be entitled to recover its costs and expenses of litigation, including its
reasonable expert witness and attorneys' fees, and any costs and expenses, including attorneys' fees,
incurred in any appeal or collection actions related thereto.
Executed to be effective the date first set forth above.
TRAER CREEK METROPOLITAN DISTRICT
a quasi-municipal corporation and political subdivision
of the State of Colorado
By:
CRYR
Name:
Title:
TOWN OF AVON, a Colorado municipal corporation
By:_
Name:
Title:
CR4CR
STATE OF COLORADO
COUNTY OF EAGLE
) ss.
The foregoing instrument was acknowledged before me this day of , 2002, by
as of the Traer Creek Metropolitan District.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2002, by
as of the Town of Avon, a Colorado municipal corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
CRS'R
Oct-17-02 08:51 am From-Dunn 8 Causey,LLC
THE PROPERTY
F w?CZL DESCRIPTION
+9707488881 T-742 P-006/012 F-893
•
That :a6' of the E 1/2 of Section 12, Tcwnship 5 Scuth, P,acce
Hest of the S?-th Pr i nci pal re_ic_zn, E2c1e CowZtl', Colorado
zcco=cing to the :e: endent Fesu= Yev z ;d sr of said ^c»:.sh;z r
c
a:ce, zcce: ted Seste?^e. 7, 1977 by the ^eta_-y ent od the Izte:ie
-: ezu of Laze. Aro^ *-sn -3r rTasp =e?_ ?p s,
.-_--z-e_ 6 _ tc_, D.C., tocel..,e_ wit
VM r?s
o: Sections 7, 8, 6 17, Tcum-shi-M 5 Scuth, Rance 63 West of the
Soh rr-=c: =ac? a CCL?t", Coloracc, acco_dins to the DeCe=ce-^.t
esu-;.ley of :zid T, hIzzhlu z.-d Rance, zcce"ted Novem!zer 11
1943
$,
the DezzT`,= E-L. Of the 1ate.:cr Gene=z! _ ;d office in Wash±nc;onr
D.C., 6e_c_:U-ed as z whole as fallos;s:
Eecinnize at the Nor-thwest cczner cf sad Section 7; thence alcre
the nvrhe.iv 1==e of said Sect? oa 7, NEV49'24"? 2791.46 feet, to
the Nc: th 1/4 corner of said 5ectiot 7; thence, detzztinc said
not: e_1T li=ne, alczc the eeste=ly lie of the NW 1/4 of- said
Sect=ea 7, S 00.11 ' 17 "i 2622-00 feet, to the =or therly ri cht-of-wag
13ne of Interstate Eighway No. 70, as descl-ibed in the deed
recerdsd iM Ecck 223 at Pace 962 in the office of the Eacle Coenty .
Celo=ado, Clerk a,;2 Recorder; thence, along said northerly -right-
cf-•,,:av line, 569.281350E 196.48 feet, to the northerly line of the
SE 214 of said section 7; thence, along said northerly line
N89'50140"E 2572.71 feet, to the West 114 corner of said Section 8;
thence, e2cng - the westerly lire of Ald Section 8, 1700'30'53"W
2736.19 feet- to the Northwest co=ne= of said Section 8; thence,
along the northerly line of said Section 8, N8E'40"41"E 2738.98
feet, to the ?forth 1/4 corner of said Section 8; thence, eontinuizg
alcng .said northerly line, 1788042'58"E 850.00 feet; theneer
Zezztzng said northerly line, E56.30' 00"E 1274.62, feet; thence
517038130"E 1593.20 feet; thence 527039130"W 2121.59 feet; thence
Soiltb 899.93 feet; thence East 2595.53 feet, to 'the easterly line
of the SW 1/4 Sri 1/4 of said Section 9; thence, along said easterly
line 501033' 1311 603.3!4 feet, to the Southeast come: of said SW
1/4 SW 1/4; thence, along the southerly lie of said Section 9,
NE9'55104"W 23371.96 feet, to the Southwest corner of said Section
9; thence, along the easterly line of said Section 17, 501'41149'8
170.00 feet, to the centerline. Of the E2cle R=yez; thence the
fol? cwing fc = ccnrses along said certerli: a (Fil= zrraee; : (1)
N69024149"W 1037.90 feet; (2) 1786'07149"F'++ 472.00 feet; (3)
N89029149"W 53x.00 feet; (4) 982.33111"W 395.15 feet, to the
westerly line of the NE 1/4 of said Section 17; thence, along said
Westerly line, N00.20155"W 237.74 feet, to the Nvr`h 1/4 corner of
said Section I7; thence, along the nczthe=lv line of said Section
17, 529023'36"E I?"6.69 feet, to the Saathwest corner of the SE I/4
SE 1/4 of said Section 8; thetce, along the weste=ly line of said
S: 1/; SE 1/4, N00'51' 07"E 13508.90 feet, to the SE 1116 corner of
said Section 8; thence, along the southerly line of the JJN 1/4 SE
1/4 of said Sect_on 8, N89'N54154"W 1,333..5-8 feet, to the CS 1116
corner of said Section 8; th"cel along :l:e southerly line Cr the
NE 1/4 Sir? 1/4 of said Section E. 2189'59'35"L? 1 399 _ajC -Fndm4- 4_ &U,%
Oct-17-02 08:51am
From-Dunn 8 Causey,LLC
+8707488881 T-742 P-007/012 F-893
0 . is
southerly line of said Secticn 81 X89.33128"W 529.28 feet, to the
nvztherlg richt-of-way line of the Denver and Rio Grande Western
Rai lrcad; thence the following ten courses along. said northerly
i; cht-of-way line: (1) 132.91. f eet along the are of a curve to the
ric ht, hzvinc a radius of 2033.48 feet, an internal amele of
03'44'42", and z chord that bears N70.30'09"W 132.69 feet, (2)
1766637'48"R 527.88 feet; (3) 231.12 feet along the arc of z cz,Ve
to the le=t, hevine a radius of 5779.70 feet, an internal angle at
02' 27' 28', and a chord that bears N6°'46' 32"W 231.09 feet; (4)
800014131"27 23.20 feet; (5) 1142.5.0 feet alcna the are of a curve
to the le t, haing a radius of 5759.70 feet, an inte-?zl azcle of
12021155', and a chord that bears N76432'02"w 1140.63 feet;' (g)
N824I3'00"W 1136.53 feet; (7) 548.06 feet zlonc the a;c of a curve
to the sic:;t, having a rzdluls of 1880.00 feet, 6 internal ancle a--
16,42'20", and a chord that bears N73151,55"W 5466.11 feet; (a)
7400022123"W 22.04 feet; (9) 28.04 feet along the arc of a curve, to
the right, havinc, a radius of 1860.00 feet, an intex-nzl angle of '
00451150°, and a chord that bears N64'47155"W 28.04 feet; (30)
N64'22' QO"A 377.10 feet; thence, departing said northerly right-of-
wzy 2; =a, S25'38' 00-W 100.00 feet, to the southerly right-of-way • • '
line of the Deriver and Rio Grande Veste_-n Railroad, also be?,c on
the existing Town of Avon Boundary; thence, along said southerly
right-of-,,ray line and existing Tr-wn of Avon bowela.ry the following
tbsee courses along the northerly line of the pazzcel annexed to the
Tern of- 2.rerr by'Ordinance 86-10i (1) NW22100"W 2064.00 feet; (2)
968.59 feet along the arc of a curve to the left, having a radius
of 34327.50 feet, an internal angle of 01.37' 000, and a chord that
bears N65'10'30nW 968.56 feet; (3) N65'59' 00"W 527.60 feet; thence
continuing along said southerly right-of-way line and existing Town
of Avan Pcnn2ary the following course along the nox-therly lane of
the parcel annexed to the Town of Avon by Ordinance 81-38r
N65.5 8' 08 "W 677.83 f eet; thence, departing said southerly right-of-
w-ay line and continuing along the boundary of the parcel annexed to
the Town of Avon by Ordinance 81-38, X24.01152"E 100.00 feet, to
the northerly right-of-gray line of the Denver and Rio Grande
Western Railroad and the Svutbeast corner of Lot 22, Benchmark at
Beaver Creek; thence, departing said northerly ri+gh't-of-Way line
and continuing along the existing Town-'of Avon Boundary the
following two courses along the' easterly line of the parcel
originally incorporated z: the Town of Avon as defined in Ordinance
78-4: (1) N18'S9140"E 995.99 feet; (2) 'a calculated distance and
bearing of 823055' 02"W 268.23 feet (record distance and bearing of
N25.10103'W 235.72 feet), to the southerly line of the HE 1/4 NE
1/4 of said Section 12; thence, along said southerly line and
existing TcNn of Avon Loundary the following course along the
southerly line of the parcel annexed to the • Town of Avon by
p_dinznce 81-20, a calculated distance had bearing of 589'58141"E
1192.32 feet (record distance aad beating of 589'57107"E 1184.14
feet) r to the westerly line of said Section 7; thence, along said
"+este:ly line and existing Town of Avon Boundary the follavi.ag
course along the easterly line of the parcels annexed to the Town
of Avon by ordinance 81-20 and Ordinance 81-34, a measured distance
and bearing of X00.13127"W 1321.54 feet (record distance and
bearing of N00.100140W 660.82 feet per Ordinance 81-20 and record
Oct-17-02 08:52am From-Dunn b Causey,LLC +9707488881 T-742 P.000/012 F-893
'distance z'-d bearing of N00610114"W 660.83 per Ordinance 81-34), to
the point cf heginnin5, containing 9 67.07 acres, more or less o
EXCEPTING FROM. the foregoing Fascel,description all portions o± the
cescr=bed prorerty that constitute the Tate=stzte Eighwzy NC. 70
Rigbt-of-Way azd the Den,7e: Ric Crznee Western Railroad : 4 cht-o f-
Way, vlzich po=tiens contain 99.24 ac: es, nose or less. The net area
of the pz,-ce'! Lane imcluced in this -,Exzticn ? s 867.83 acres,
more or less.
r
Oct-17-02 08:52am From-Dunn & Causey,LLC
PARCEL DE S CRIMC N
+9707488881 T-742 P-006/012 F-803
•
That put of Sectiets 81 9 6 101 Township 5 South, Ramae 81 Rest of
the Sixth Principal, Pacle County, Colorado, accordinc to the
Dependent Re,zurvev of sa_C Township and Ruse, accented November
1943 by the Detar meat of the Interior General Land Office 7
Washinctcn, D.C,, desc_.L^ed as follows:
Begin-tine at the Ne-th 314 ccrze_ of said Section 8; thence alma
the northerly line of said section 8, N88042158"E 850.00 feet, to
the True Point of Eecinnirg; thence, ccntizuinc clang Said
northerly li-te, NE8.4Z'S8"E 1920.12 feat, to the Northwest corner
of said Section 5; th•e=ce, alone the narthe;?y line of sated Sectior.L
9, N63'25130"E 2773.27 feet, to the 270rth 1/4 donne: of said
Section 9; thence, continuing alone said northelry linee
N83'24'12"E 2772.60 feet, to the Northw si t corner of said Section
10i thence, zlcuc the northerly line of said Section 10
X86'39'24"E 2681.23 feet; thence, detzrting 52'9 northerly line,
$01034107"N 2699.66 feet, to southerly line of the SE 1/4 WW 1/4 of
said Section 10; thence, along the southerly line of said BE 114 n .W
'
1/4, S86.32123"W 1304.06 feet, to the Center Rest 1/16 comer cf
said Section 10; thence, along the easterly line of the NR '1J4 5W
1/4 of std Section 10, S01632150"W 1349.33 feet, to the Southwest
1/16 corner of said section 10;:thencee along the sautbe='ly line of
• said NW 1/4' .SA 1/4, S86.32'47"W 1384.91• feet, to the Scutt 1/16
co=nes' of sud Sections 9 6 10; thence, along the southerly line of
the NE 1/4 SE 1/4. of said Section Be S77'10115"W 1413.37 feet, to
the Somtbeast 1/26 corner 'at said Section 9; thence, along the
easterly line of the SW 1/4. SE 1/4 of said Section •9, 50203310211F
1475.32 feet, to the East 1116 corder of said Se?tioa 9 and Section
16 of said Townshiv 5 South, Rance 81 West of the Sixth Principal
Meridian; thence, !lone the southerly line of said SW 114 SE 1/4,
S72020137."_W 1450.43 feet, to the South 2/4 corner of said Section
9; theace,' along the 'westerly line of said SW 114 BE 1/4,
2q01'34'18"E 1601.52 feet, to the Center South 1/16 corner of maid
Section 9; thence, along the southerly line of the NE 1/4 SW 1/4 of
said Section o, 86.07'30"W'1378.19 feet, to the Southwest 1/16
corner of said Secti-on 9; thence, along the easterly line flf the SA
1/4 SAT 1/4 of said Section 9, , S O1' 33' 13 "W 903.02 feet, to the
eustimg Town of Avon Pciindzry; thence, dep=-ti.ng said easterly
line, the following five courses along said existing Town of Avon
Boundary: (3) West 2595.53 feet; (2) North 899.93 feet; (3)
N27'39130"E 2121.59 feet; (4) N17.38130"W 1593.20 feet- (5)
X56030100"W 1274.62 feet; to the Tree Point of Beginning,
containing 932.16 ac=es, more or less.
Oct-17-02 08:52am From-Dunn 8 Cauvey,LLC +8707488881 T-742 P-010/012 F-893
THE ADDITIONAL PROPERTY
PARCEL `PESCRIPTION
Tbose,p of the N 1/2 -of Section 10; Township 5 S , a=ge el
Neat of th principal • Mezlctan, Earle C tY olorado,
accord'=g to a pendent Resnrve'y of said T 9 ?d age,'
accepted NC4embe 1, 43 by the Depaz-tzent o h nterior General
Le-nd'-Office in Was g , D.C., describe 'Whole as follows:
Fegi=-4ng at the Morph St rner c d Section 10; thence'tbe
following twd cc'0rsea al. g t e =ly li.ne • of maid Section 10:
(1) S020379 01"W 1347.04 fe t e x 1/16 corner of said Section
10 and Section 11 of said s and Range; (2) 501'37' Ol'w
1347.04 feet, • to the 1/4 es f s "d Sections 10 and 11; thence -
the -f oll owing three cc s along be st-west centerline of said
Section 10:, (1) 586' 3'A 1381.61 eet to the CE 1/16 corner of
said Section- 10; 896033'23"w 1387.2 et, to the C 114 cases
of maid Secti o ; . (3) 586932"23"N 81. 7 f t; • tbenee, depextiz '
said east -w centerline, N01'34'07` 26 66 feet, to the -
aortberly a of ;za.id Section 10; tbeac the olleNring three'
co'arses Ong the nortberlp line of sal. Se .= 20: (1)
N86'39 4`E 81.35 feet, to the 114 corner of- s Se '-on 10 and
Se 'on 3 bf said Township and Range; (2) N86'39'20 1382. feet,
t the z 1116 cower of said Sections '10 and 3; ) N86'39 "S
82.51 feet; to the point of beginning. -
• ti
Oc H 7-02 08:52am From-Dunn & Causay,LLC
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WATER SUBLEASE
This Water Sublease ("Sublease") is entered into this day of , 2002,
between the Town of Avon, a Colorado municipal corporation and the Upper Eagle Regional Water
Authority, a quasi-municipal corporation and political subdivision of the State of Colorado (the
"Authority").
RECITALS
Whereas, EMD Limited Liability Company, a Colorado limited liability company ("EMD
LLC"), the Authority, and the Eagle-Vail Metropolitan District (the "District") entered into a Water
Service Agreement dated May 15, 1997 ("Service Agreement"). Paragraph 2(b) provided that EMD
LLC agreed to lease a portion of the specified water rights in attached Exhibit 2 (the "Subject Water
Rights") to the Authority as a condition for water service to 1,789 acres of land owned by EMD LLC
as described in the attached Exhibit 1 (the "Property"). EMD LLC thereafter transferred its interest
in the Property to Traer Creek LLC.
Whereas, EMD LLC, the District, Avon, and the Authority entered into the First Amendment
to Water Service and Tap Fee Allocation Agreement dated June 22, 1999 (the "Amendment").
Section 2(B) of the Amendment substituted Avon for the District. Section 2(H) of the Amendment
amended the lease provision in Paragraph 2(b) of the Service Agreement whereby EMD LLC agreed
to lease without cost to Avon for sublease without cost to the Authority the portion of the Subject
Water Rights sufficient to replace the consumptive use associated with the development of the
Property as ultimately decreed by the Water Court.
Whereas, in Case No. 97CW306 the Water Court determined the historical
consumptive use of the Subject Water Rights to be 252.4 acre feet per year. The Water Court also
determined that the expected total maximum annual amount of consumptive use associated with the
development of the Property is 181 acre feet per year, based on a projected build-out of a certain size
and certain water use and consumptive use assumptions contained in Paragraph 8 D through 8 G and
Schedules A, B and C of the court's decree. The Water Court further determined that the annual
replacement supply of water under the Augmentation Plan would be made up from 155. 8 acre feet
of available historical consumptive use credits attributable to the Subject Water Rights during the
historical irrigation season (May-October) and from 24.8 acre-feet of water to be released from
storage during the non-irrigation season (November-April).
Whereas, certain of EMD LLC's rights, duties and obligations under the Service Agreement
and Amendment were assigned to Traer Creek LLC, pursuant to that certain Assignment and
Assumption of Water Service Agreement and Related Water Rights dated November 29, 2001.
Whereas, certain of Traer Creek LLC's rights, duties and obligations under the Service
Agreement and Amendment were assigned to Traer Creek District pursuant to that certain
Assignment and Assumption of Water Service Agreement and Related Water Rights dated
November 29, 2001.
Whereas, certain water and water rights, ditch and ditch rights, consumptive use credits, and
reservoirs and storage rights were transferred by Quit Claim deeds from EMD LLC to Traer Creek
LLC, and from Traer Creek LLC to Traer Creek District.
Whereas Traer Creek District has leased the Subleased Water Rights described below to
Avon in a Water Lease entered into on the same date as this Water Sublease.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and sufficiency ofwhich are
hereby acknowledged, the parties agree as follows:
1. Sublease. Avon hereby subleases to the Authority. all of its right, title and/or
interests (beneficial or other interests) in and to the following (collectively, the "Subleased Water
Rights"):
(a) the water rights described in Exhibit 2 identified under the column heading
"Amount Leased", together with all associated rights and benefits of the plan for augmentation and
exchange decreed by the District Court in and for Water Division No. 5 in Case No. 97CW306 (the
"Augmentation Plan") including, without limitation, the 22 acre-feet of water storage rights in
Nottingham Reservoir and the combined total of 27 acre-feet of conditional water storage rights for
The Village (at Avon) Lakes Nos. 1 and 2 described in Paragraph 8 C thereof, together with all
associated changes of water rights decreed therein;
(b) the 155.8 acre feet of historic consumptive use credits identified in the
Augmentation Plan and described in the attached Exhibit 3;
(c) the 30 acre feet of water attributed to 300 shares of Class A, Series 2 Eagle Park
Reservoir Company stock as described in the Service Agreement (the 'Eagle Park Shares");
(d) an additional 9.8 acre feet of storage water from Wolford Mountain Reservoir,
Nottingham Reservoir, or another storage facility acceptable to Avon and the Authority ("the
Additional Storage Water) to provide sufficient water rights to serve the Property. In addition,
unless Nottingham Reservoir water is provided, the Augmentation Plan needs to be amended to
include the Additional Storage Water. Traer Creek District has agreed to secure, pay the cost of, and
assign to Avon for subsequent lease to the Authority, the Additional Storage Water within 3 months
of the date of its Lease with Avon. Thereafter, the Authority shall use its best efforts to amend the
Augmentation Plan, if necessary, to include the Additional Storage Water as an additional source of
augmentation water. Traer Creek District has agreed to promptly reimburse Avon and Authority for
all costs and fees (including legal, engineering, and court fees) incurred by the each of them in
securing such an arrangement; and
C R2'R
(e) all diversion ditches, pipelines, headgates and structures, pumps, casings and
other improvements and easements associated or used in connection with the above described water
rights (including without limitation rights of access thereto) as become necessary from time to time
to provide water service to the Property, subj ect to Traer Creek District's and Avon's equal rights of
access and use of the same. The parties recognize, acknowledge and agree that in connection with
the development of the Property such structures may need to be modified, piped, buried or otherwise
improved at Traer Creek District's sole cost and discretion.
It is mutually expected and intended by the parties that this Sublease will fulfill Traer Creek District's
obligation under Section 2H of the Amendment referred to herein above.
2. Term. The term of this Sublease shall be perpetual, provided however, that in the event
that the Authority defaults in providing water service to the Property (excepting temporary cessation of
water service due to reasonable maintenance requirements or emergency conditions) pursuant to and in
accordance with the Service Agreement and the Amendment, Avon may terminate this Sublease upon
sixty (60) days written notice to the Authority unless within such sixty day period the Authority cures
such default. Upon termination of this Sublease the Authority's right, title and interest in the "Subleased
Water Rights" shall be released to Avon.
3. Payment. The Subleased Water Rights shall be subleased to the Authority without
charge. The consideration for this Sublease is the water service provided pursuant to the Service
Agreement and the Amendment.
4. Miscellaneous.
(a) This Sublease may not be amended except by a written document signed by the
parties which expressly references this Sublease.
(b) This Sublease shall be construed under and governed by the laws of the State of
Colorado.
(c) In the event of any litigation regarding the parties' rights and obligations under this
Sublease, the prevailing party shall be entitled to recover its costs and expenses of litigation, including
its reasonable expert witness and attorneys' fees, and any costs and expenses, including attorneys' fees,
incurred in any appeal or collection actions related thereto.
Executed to be effective the date first set forth above.
TOWN OF AVON, a Colorado municipal corporation
By:_
Name:
C RYR
Title:
UPPER EAGLE REGIONAL WATER AUTHORITY,
quasi-municipal corporation of the State of Colorado
By-
Name:
Title:
CR4°H
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this
as of the Town of Avon.
Witness my hand and official seal.
My commission expires:
day of , 2002, by
Notary Public
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2002, by
as of the Upper Eagle Regional Water Authority, a quasi-
municipal corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
CRSCR
Oct-17-02 08:51 am From-Dunn 8 Causey,LLC +9707488681 T-742 P-006/012 F-893
E
•
THE PROPERTY
P_RCZL DESCRI?TION
That :art of the E 1/2 of Section 12, Tcwns$iu 5 South, P,zcCe S2
West ca the 5i-cth Pri acipal rerid? an, Eeci a Cou=y, Color2dp
accorc:ng to t?;e Oe: a :cett EesL GeV and
Sl'?ev of sa=d ^c?:.shiz r
=a=ce, zccec;ec Sezte?es 7, 2977 By the "e z_ -y?es? ; oc &h . ? d
e I=
E=eeu of !a-nd *!? racer.: t'i: ITase or i? a}?. „
, D.C., tocet.ie- _ ti rax-,.s
Of Sec " cts 7, 81 '5F a 17, Tc%mmsr:ir 5 South, Rance 81 West of the
Sixth rT__c-=al, Eac? a Cccnt_ , ColoracC, acco_c3n5 to the Dezezde?t
es Vr•:a 016 said Tchnsh; ? a.'=d :'cease,
_ agoer pt •uher 1, 1243
Le.. Novey }y,
the L?etz_''!,eut cf the Iate.zcr Gene=el _.zae office in W2sh±tC-;Oz -
D.C., desc:O-ed as a ?:ncle as follows: Pecinnite at the Northwest ccz=er ot, sad Section 7; thence zlcmc
the nvrhe.iv line of said
Section 7, W68.49' 24 "? 2791.46 feet, to
tI.e Ncr th 1/4 comer of said Section 7; thence, detesting sad
Ao= the=1; lire, along the eastern: 1n4 cf the 39 1/4 of- said
Sectien 7, 500.1:' 12 " 621.00 feet, to the northerly right-of-wag
14_e of I,ntetstate Eichway No. 70, as described in the deed
^Eccrdsd i n Pcck 223 zt Pace 962 in the office of the E2cl a Co, nt F.
Colorado, Clerk and Recorcer; thence, along said northerly -right-
of-•?:ay line, 569028135°E 196-48 feet, to the northerly line of the
SE 314 of said Section 7; thence, along said uortherlp line
2789'50'40"E 2572.71 feet, to the West 1/.4 corner of said Section 8.
thence, elong•the xeztesly lire of said Section 8, H00610153"1N
273S.19 feet - to the 17ortLh est cc*ne- of _ zd Section 8; thence,
along the northerly line of said Section By N8E'40" 41"E 2738.98
-feet, to the ?North 1/4 corner of said Section 8; thence, continuing
along said uortbe:ly line, N88.421580E 850.00 feet; thence,
dezatzz<g said northerly line, 556.30100"E 1274.62. feet; thence
517038130"E 1:93.20 feet; thence 527'39130"W 2121.59 feet; thence
Scath 899.93 feet; thence East 295.53 feet, to the easterly line
of the SW 1/4 Sri 1/4 of said Section 9; thetce, along said easterly
1!^e 501033113"W 603.=4 feet, to the Southeast corner of said SW
1/4 SW 1/4; thence, along the southerly line of said Section 9,
N'E9' 55' 04 "W 1372.46 feet, to the Southwest corner of said Section
9; thence, along the easterly line of se-id Section 17, SO1'41149°E
170.00 feet, to the centerline. of the E2cle U-7e:; thence the
fol?cwing foe= courEes alone said centerline (rilum zcaee): (l)
N89924149"W 1037.90 feet; (2) N86'07149">r+i 472.00 feet; (3)
N89'29,49"W 538.00 feet; (4) 3821331111"W 595.15 feet t0 the
westerly line of the NE 1/4 of said Section 17; thence, along said
westerly lire, N00'20155"W 227.74 feet, to the North 1/4 corner of
said Section 17; thence, alvag the northerly line of said Section
17, 29' 23' 36"E 1315. 69 feet, to, the Southwest corner of the SE 1/4
5E ? /4 of said Section 8; thence, along the Westerly line of said
SE 1/4 SW 2/4, N00'51' 07''E 13508.90 feet, to the SE 1116 corner of
sand Section e; thence, alone the southerly lire of the IM 2/4 SE
2/4 cf said Section 8, N89654154"W 1333:58 feet, to the CS 1116
corner of said Section 8; thence, mIcna -lhc southerly line at the
NZ 1/4 SR 1/4 of said Section Sr 2189.58'3511W 1366.46 feet, to the
Sri 1116 corner of said Section 8; thence, along the easterly line
of the SW 1/4 Sw 114 of said Section 8 S00.01137"E 1376.08 feet,
to +-hp_- Snro-INom _a- of am i A aw - ?, .•w . 0. - _? - - -
Oct-17-02 08:51am
From-Dunn a Causey,LLC
+6707488881 T-742 P.007/012 F-883
0 . 0
southerly line of said Section 81 1489632'28"W 529.28 feet, to the
northerly right-of-way line of the Denver and Rio Grande Western
Rai lrcad; thence the following ten courses along. said northerly
richt-of-way line: (1) 13? . 91. feet a? oag the arc of a curve to the
rid ht, hzvinc a radius of 2033.48 feet, an internal emcle of
03'44'42", zn-d a chord that bears 1470.30'09"W 132.89 feet, (2)
1766637148gW 527.88 feet; (3) 231.12 feet along the arc of z cue
to the left, havi.r.c a zac.us of 5779.70 feet, an internal angle of
02'17'28', and a chore. that bears NE°44-6132"W 231.09 feet; (g?
S00.14'31: 21.20 feet; (5) 1142.5.0 feet aloac the are of a curve
to tl-ie le t, hz?inc a radius of 5759.70 feet, an inte_-mal azcle of
11621'551, and z cbc-d that bears X76'32'02"Sn 1140.63 feet;' (6)
N62013' 00"W 1136.53 feet; (7) 548.06 feet along the arc of a cu*?e
to the sic:;t, having a rzdins of 1880.00 feet, an internal a.ncle 0.6
16142'1001 and a chord that bears N73.511:5`g 546.11 feet; (8)
N00612'23"W 22.04 feet; (9) 28.04 feet along the Z? of a eu_;ve to
the ricbt, having a radius of 1860.00 feet, an inte-r-nzl angle of '
004511508, and a chord that bears X64047'55"W 28.04 feet; (10)
N64"22" U"17 377.10 feet; thence, 1deF22ti.nq said northerly right-of-
way line, 525.38' 0o°W loo. 00 feet, to the southerly right-of-,my - • '
line of the Denver and Rio Grzr.de Weste-rn Ra? lrozdr also be;ag on
the existing Town of Avon Boundary; thence, along said southerly
richt-of-way line and existing Tcun of Avon boundary the following
three courses along the northerly line of the pzcel annexed to the
Town of .Psoir by'Ordinance 96-10: (1) N64?922I00"W 2064.00 feet; (2
968.59 feet along the arc of a curve to the left, having a radius
of 34327.50 feet, an internal angle of 01.37' 00", amd a chord that
beers N65.10130"W 968.56 feet; (3) N65'59' 00"W 527.60 feet; thence;
continuing along said southerly right-of-way line and eusting Town
Gf Avon Pc=dasy the following course along the northerly line of
the parcel annexed. to the Town of Avon by Ordinance Sl-38r
N65058' 08OW 677.63 feet; thence, departing said southerly right-of- -
way line and continuing along the boundary of the parcel annexed to
the Town of Avon by Ordinance 81-38, 1424.01' 52"S 100.00 feet, to
the northerly right-of-Way line of the Deaver and Rio Grande
Western Railroad and the Southeast corner of Lot 22, Benc'amark at
Beaver Creek; thence, departing said northerly right-of-gray line
and continuing along the existing Town•'of Avon 8onndazy the
:following two couzzes along the' easterly line of the parcel
originally incorporated zs the Town of Avon as defined in Ordinance
78-4: (1) N18.59140"E 995.99 feet; (2) 'a calculated distance and
bearing of N23.55' 02"W 268.23 feet (record distance and bearing of
N25010'03'W 235.72 feet), to the southerly line of the NE 1/4 Na
1/4 of said Section 12; thence, along said southerly line and
existing Town of Avon Moundary the following course along the
southerly line of the parcel annexed to the -Town of Avon by
ordinance 81-20, a calculated distance and bearing of 589'58141-E
1192.32 feet (record distance and bearing of 589-57#01"2 1184.14
feet), to the westerly line of said Section 7; thence, along said
westerly line and existing Town of Avon Boundary the following
course along the easterly line of the parcels annexed to the Town—
'
of Avon by ordinance al-2a and ordinance 81-34, z measured distance
ane bearing of M 0 0.11' 27 "W 1321.54 feet (record distance and
bearing of N00610'14"W 660.82 feet per Ordinance 81-20 and record
Oct-17-02 08:52am From-Dunn & Causey,LLC +9707488881 T-742 P.000/012 F-893
distance P--d bearing of N00' 10' 14 "W 660.83 per Ordinance 81-34), to
the point of beciinning, containing $ 67.07 acres, more or less,
EXCEPTING FROM the foregoing parcel ,description all portions of tree
described prcrerty that constitute the Iate_9tate EiShwzy C. 70
TU Cb t-of -Way end the Den-ver Ric C= z^.de Western Railroad R i c?4-c f_
Nay, ub? ch potions contain 99.24 acres, =ore or less. The net erect ,
of Abe pz-cel he-c jmcluded in Ibis a _re_j2tion ;0 867.83 acres
more or less. '
r
Oct-17-02 08:52am
From-Dunn a Causey,LLC +9707488881 T-742 P.009/012 F-893
PJLRCZL DESCRI?TION
That part of Sections 8, 9 9 10, Township 5 South, Rance 82 'Rest of
the Sixth Principal, Eacle Ccutty, Colorado, accordine to the
Dependent Re_u-vev of said Township and Rance, accepted November 1
1943 by the Detz: t.zent of the Interior General Land Cffiee i.n
Washinctcn, D.C., desc_i=ed as follows: .
Beginning at the Ne-tn 114 ccrzer of said Section 8; thence along
the northerly line of said Section 8, N88.42158"E 850.00 feet, to
the True Point of Beginning; thence, continuing along 'aid
notherly line, N66.42'58"E 1920.72 feet, to the Nouthwest corner
of said Section 5; the=ce, alone the northerly line of sad Section .-
9, N83'29'30"E 2773.27 feet, to the north 1/4 gonna: of said
Section 9; thence, continuing along said nortbelry line,
N83024112"E 2772.60 feet, to the Northw st corner of said Section
10; thence, elcnc the northerly line of said Section 10
N86'39'24"E 2681.23 feet; thence, det?iag said northerly line,
$01034107"17 2699.66 feet, to southerly line of the SE 114 rrW 1/4 of
said Section 10; thence, along the southerly line of said BE 114 =
1/4, S86'32123"W 1304.06 feet, to the Center Rest 1/16 ecinet of
said Section 10; thence, along the easterly line of the NA '1 4 SST
1/4 of sad Section 10, 501032150"W 1349.33 feet, to the Southwest
1116 corner of said Section 10;.-thence,, along the southerly line of
said NR 1/4' SA 1/4, 586.32947"W 1384.91 feet, to the Sout$ 1/16
co=ne= of szid•Sections 9 4 10; thence, along the southerly line of"
the NE 1/4 SE 1/4. of said Section 9, S77'10'15"W 1413.37 feet, to
the Sontbeast 1/,16 corner of said Section 9; tbencer along the
easterly line of the SW 1/4. SE 1/4 of said Seetioa ,9, 501'33' 02"W
1475.32 feet, to the East 1/16 corner of said Se?tiou 9 and Section
16 of said Township 5 South, Rance 81 West of the Sixth Principal
Meridiem; thence, along the southerly Line of said SW 114 SE 114,
S72020131"
.W 1450.43 feet, to the South 1/4 corner of said Section
9; thence, eloag the ` westerly line of said SW 1/4 BE 1/4,
N01'34118"E 1601.52 feet, to the Center South 1/16 corner of said
Section 9; thence, along the southerly line of the HE 1/4 SW 1/4 of
said Section a, 86.07'30"W'1378.19 feet, to the Southwest 1/16
corner of said Section 9; thence, along the easterly line -of the SW
1/4 SW 1/4 of said Section 9, , S O1' 33' 13 "W 903-02 feet to the
existing Tows of Avon Poundzry; tbeace, dep2sting said easterly
line, the following five courses along said existing Town of Ivan
Boundary (3) Rest 2595.53 feet; (2) North 699.93 feet; (3)
N27'39130"E 2121.59 feet; (4) N17038130"W 1593.20 feet; (5)
N56.30' 00"W 3274.62 feet to the Trae Point of Peginniag,
containing 922.16 ac=es, more or less.
Oct-17-02 08:52am From-Dunn 8 Causey,LLC +9707488881 T-742 P-010/012 F-893
THE ADDITIONAL PROPERTY
PARCEL D£SCRIPT70K
Tbose,pe•sts of the N 1/2 'of Section 10j Township 5 South, Ra a 83
t of the Sixth tzincir-al' Me_irL^'aa, Yzcle County, osado,
acc d-g to the Dependent Resnxvey of said Tcwnsbi and F.=Se,'
accept Ncv'e=Lber 1, 1943 by the Depa-tent of the erior General
Lend Offx is Washington, D.C., described as bole as follows:
Begi=ing at Bor`heast corner of s Section 10; tbeaee'tbe .
following tWd c013S along the Caste line, of Said Section 10:
(1) S O1' 37.01"W 1347. feet, to tb 1/16 corner of said Sectiop
10 and Section 11 of s • To F and Range; (2) 501'37101`W
2347.04 feet •to the 1/4 cc= of said Sections 10 and 11; thence
the •follcw,ingthree course a1c the east-west centerline of said
Section 20: (1) 586'32' "A 1381• eat, to the CE 1/16 corner of
said Section 10; (2 86032123"H 1387. feet, to the C 1/4 corner
of s a.id- 5ectioo 1 , • (3) $86"32'23"R 81.37 t; thence, depast3.nq
said east-ve centerline, N01' 3r4' 07 "E 269 . 6 feet, to- the
northerly. 1' a of ;acid Section 30; thence the laWing three'
conrses ong the nortberly line of said Sect" l0s (1)
N860-39' "E 81.35 feet, to the 1/4 comes of said Secti 0 and
Se • n 3 bf said Township and Range; (2) N86'39'20"B 1382.52 ,
t he 8 1/I6 cc=et of said Sections 10 and 3; (3) N86'39'20"
382.51 feet; to the point of be9in"Ing•
Oct-17-02 08:52am From-Dunn 8 Causey,LLC
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WATER SERVICE AGREEMENT
THIS AGREEMENT is made and entered into this ay of , 1997, b
and between the EAGLE-VAIL METROPOLITAN 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, PVRT NOTT I LLC. a
Colorado limited liability company, PVRT NOTT II LLC, a Colorado limited liability company,
and PVRT NOTT III LLC, a Colorado limited liability company (hereinafter collectively
referred to as "EMD LLC"). The UPPER EAGLE REGIONAL WATER AUTHORITY (the
"Authority"), a quasi-municipal corporation and political subdivision of the State of Colorado,
agrees to be bound by the terms and provisions of this Agreement as though a party to the
Agreement to the extent obligated by its terms and conditions.
REC 3
A. WHEREAS, EMD LLC is the owner of approximately 1,789 acres of land located
in portions of Sections 7, 8, 9, 10 and 17, T. 5 S., R. 81 W., and Section 12, T. 5 S., R. 82 W., in
Eagle County, Colorado, which land is more specifically described in Exhibit A attached hereto
(the "Property") ; and
B. WHEREAS, EMD LLC desires to contract in order to obtain water service for the
development on the Property and, if necessary, to obtain other services for the Property. The
District desires to assist in whatever way is possible to obtain other services for the Property; and
C. WHEREAS, the District is a Colorado Special District duly operating pursuant to
Section 32-1-101 et seq., C.R.S., and provides water, fire protection, and recreational services to
its residents, and by contract to properties outside of its boundaries; and
D. WHEREAS, the District, along with Arrowhead Metropolitan District, Town of
Avon as successor to Avon Metropolitan District, Beaver Creek Metropolitan District, Berry
Creek Metropolitan District, and Edwards Metropolitan District (collectively, the "Contracting
Districts") established the Authority pursuant to an Intergovernmental Agreement, dated
September 18, 1984 (the "Establishing Agreement"); and
E. WHEREAS, pursuant to the Establishing Agreement, one of the functions or
services to be provided by the Authority is the provision of treated water to the Contracting
Districts, their inhabitants and others. The provision of service by the Authority to the
Contracting Districts is further governed by individual service contracts entered into between the
Authority and each of the Contracting Districts. The Authority and the District entered into a
service contract dated April 1, 1985, which service contract has been amended by five addenda.
The April 1, 1985 service contract, five existing addenda and any future addenda approved by the
Authority and the District are hereinafter referred to as the "Service Contract."
DO 1062
F. WHEREAS, EMD LLC desires to receive, and the District and the Authority (as
to water service only) desire to furnish, pursuant to the Establishing Agreement, the Service
Contract and this Agreement, water service and, if necessary, other services for the benefit of the
Property.
AGREEMENT'
NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Agreement, the sufficiency of which are mutually acknowledged. the District and EMD LLC
agree as follows:
Upper Eagle Regional Water Authority.
(a) Acknowledgment o Agreements. EMD LLC has received and reviewed
the Establishing Agreement and the Service Contract, copies of which are attached hereto as
Exhibits B and C, respectively. EMD LLC's benefits and obligations under this Agreement are
intended to be in accordance with the provisions of the Establishing Agreement and Service
Contract, and all relevant sections, terms and conditions of the Service Contract are incorporated
herein by reference, using the definitions provided in the Service Contract where applicable.
The Authority agrees by its execution of this Agreement that it shall be directly obligated
to EMD LLC under those sections, terms and conditions of the Service Contract as though EMD
LLC were the District; and the District shall be obligated as provided in the Service Contract.
Section 8.2 of the Establishing Agreement regarding "Distribution of Water Rights" shall be
incorporated herein by specific reference and the Authority acknowledges its obligation directly
to EMD LLC thereunder. The District covenants to timely perform each and every one of its
obligations under the Service Contract. The Authority, by its execution of this Agreement,
agrees to notify EMD LLC and any third party lender, trustee or successor or assign of EMD
LLC of any default by the District. The Authority agrees that if the District is in default, but
EMD LLC is in compliance with its obligations to the District, the Authority will continue to
perform its obligations `under the Service Contract for the benefit of EMD LLC provided that
EMD LLC shall perform its obligations under this Agreement directly for the benefit of
Authority, and the Authority shall, if ;he Service Contract is terminated, enter directly into a
service contract with EMD LLC, which agreement shall contain terms and provisions
substantially similar to this Agreement. In the event of any inconsistency between the
Establishing Agreement and Service Contract and this Agreement, this Agreement shall govem.
(b) Status Within Authori ty. Neither EMD LLC nor its successors or assigns
shall become a member of the Authority under this Agreement. EMD LLC shall, however, be
treated equally with all of the Contracting Districts, in accordance with the Establishing
Agreement and Service Contract. EMD LLC's interests in the Authority's operations shall be
enforced pursuant to the terms and conditions of this Agreement and shall be equal to those of
the Contracting Districts. In the event the Contracting Districts agree to expand the existing
DO 1062 -2--
Board of Directors of the Authority to include additional members, EMD LLC, if and only if
EMD LLC has formed a special district and subject to earlier commitments of the Authority
relating to such matters, shall have the opportunity to designate a director to the Authority.
The parties intend that EMD LLC is to be supplied treated water and ancillary services by
the Authority in the same manner as provided by the Authority to the Contracting Districts. The
Authority and the District agree that EMD LLC shall not for any reason, other than the default of
EMD LLC in the manner provided herein, be deprived of water or other services provided to the
Contracting Districts to any greater extent than the Contracting Districts. The Authority and the
District further agree that EMD LLC shall be entitled to participate, pro rata, with the other
Contracting Districts and with the Authority in receiving any water from alternative or additional
sources, provided EMD LLC shall be obligated, pro rata, in the same manner as the Contracting
Districts in the event EMD LLC so participates. The Authority and the District acknowledge
that EMD LLC will depend upon the water supplied under this Agreement for all of its potable
water supply needs, except that EMD LLC may, with permission of the District and the
Authority, which permission shall not be unreasonably withheld, supply its own potable water to
large lots north of Interstate 70 not economically able to be served by the regional water system
without affecting the Authority's and the District's obligations under this Agreement.
(c) Authority Board Meetings and Communications. EMD LLC, despite not
having membership status, shall be entitled to attend all Board meetings of the Authority, and
shall receive notices of formal Board meetings, copies of the minutes of formal Board meetings,
and copies of all public record correspondence between the Authority and the Contracting
Districts.
2. Water Service.
(a) Authority to Provide Treated Water for the Benefit of the Property. By
executing this Agreement, the Authority acknowledges that it has reasonably determined under
Section 4(b) of the Service Contract that, subject to the EMD LLC plan to develop
approximately 2400 residential units and 950,000 sq. ft. of commercial, or some equivalent
combination thereof as it relates to water consumption, developed over approximately 20 years:
r" (i) water rights owned or controlled by the District and leased or assigned to the Authority (in
1?.this instance actually provided by EMD LLC) are currently adequate to provide water service to
v? the Property and EMD LLC has provided evidence satisfactory to the Authority that such water
rights are not subject to encumbrances which would materially affect the security for the
obligations; and (ii) the Authority has adequate treatment capacity in the Project (as defined in
the Service Contract) to serve the Property. ETMD LLC shall have the same rights to continued
provision of water by the Authority as do the Contracting Districts.
(b) Lease of Water Rights. EMD LLC agrees to lease without rental costs
directly to the Authority the water-rights, from those described in Exhibit D attached hereto, as
the Authority reasonably deems necessary from time to time to support the supply of treated
1?GLc•Z
DO 1062 -3-
water for the Property; provided, however, that in no event shall the water use assumptions for
the Property ever exceed those standard assumptions set forth in Exhibit E attached hereto except
as reasonable. The District consents to the lease of such water rights to the Authority in
satisfaction of and consistent with the obligations, terms and conditions of the Service Contract.
(c) Water Service to the Property. The Authority shall provide wholesale
r,
water service to the Property or retail water service to individual users within the Property,
pursuant to the Service Contract, in an amount sufficient to meet the needs of the Property and on
the same charges, terms and conditions as provided to.the Contracting Districts. The District and
;,Lb. the Authority shall provide EMD LLC with the use of its facilities for the transport of water to
I / the Property and shall maintain its facilities in good repair, at the District's expense, or in
,{tip conjunction with other members of the Authority as a shared expense, to ensure the provision of
water pursuant to this Agreement. The District represents and warrants that it is duly authorized
to enter into this Agreement and that the provision of water service under this Agreement does
not contravene any charter, contract, bylaws, rules or regulations to which the District is subject.
3. Service Charges. As a condition to continuing service to any portion of the
Property, the owner of such property shall pay service charges and Plant Investment Fees to the
Authority which shall be determined, charged and collected in the same manner as to the
Contracting Districts. The Service Charges shall be calculated consistent with the Service
Contract, and the owner of the property shall be charged the same rates as the Contracting
/ Districts for the provision of water service to the Property.
4. Authority's Obligations.
(a) Annual Project Budget. The Authority shall provide to EMD LLC a copy
of the Annual Project Budget, and annual calculation of service charges on a non-discriminatory
basis in the same manner as provided to the Contracting Districts under their service contracts.
(b) Meter Read inReag and Billing. Meter reading, billing and collection services
; ?(??c.shall be provided by the Authority to EMD LLC in the same manner as provided to the
Contracting Districts.
5. Construction of Watef, Service Facilities.
(a) Main Line Extension(s) and Internal Water Service Facilities. EMD LLC
agrees to extend, at no initial cost to the District, the existing main line water transmission
facilities of the District from points nearest the Property in accordance with plans and
specifications approved by the District and/or the Authority. ENID LLC shall also construct all
necessary internal water distribution facilities including, but not limited to, water distribution
mains, a storage tank (the "Storage Tank") of adequate size to serve the approved development,
pump stations and control systems. The Authority will be reimbursed its engineering costs for
reviewing plans and specifications and all inspection costs which the Authority deems
DO 1062 -4-
THIS AGREEMENT is made and entered into this day of , 1999, by
and between the EAGLE-VAIL METROPOLITAN DISTRICT, a quasi-municipal corporation
and political subdivision of the State of Colorado (the "District'), the TOWN OF AVON, a
Colorado municipal corporation ("Avon"), and EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company, PVRT NOTT I LLC, a Colorado limited liability company,
PVRT NOTT II LLC, a Colorado limited liability company, and PVRT NOTT III LLC, a
Colorado limited liability company (hereinafter collectively referred to as "EMD LLC" ). The
UPPER EAGLE REGIONAL WATER AUTHORITY (the "Authority'), a quasi-municipal
corporation and political subdivision of the State of Colorado, agrees to be bound by the terms
and provisions of this Agreement as though a party to the Agreement to the extent obligated by
its terms and conditions.
A. WHEREAS, EMD LLC and the District entered into a water service agreement
(the "Water Service Agreement") dated May 15, 1997, and agreed to by the Authority, by which
the District and the Authority agreed to provide water service to property owned by EMD LLC,
pursuant to the terms and conditions contained therein;
B. WHEREAS, EMD LLC is the owner of approximately 1,789 acres in Eagle
County, Colorado, which land is more specifically described in the Water Service Agreement
(the "Property');
C. WHEREAS, Avon and the District are Contracting Districts, as that term is used
and defined in the Water Service Agreement, #,pursuant to an Intergovernmental Agreement
entered into by participating districts, dated S ptember 18, 1984, and one of the functions or
services to be provided by the Authority is the provision of treated water to the Contracting
Districts, their inhabitants and others;
D. WHEREAS, the Property is situated such that either Avon or the District, in
conjunction with the Authority, is capable of providing water service to the planned development
on the Property;
E. WHEREAS, the Property has recently been annexed into Avon and EMD LLC
and Avon now desire that Avon take over the responsibilities and obligations of the District as
set forth in the Water Service Agreement;
F. WHEREAS, EMD LLC and the District also entered into an agreement dated
May 15, 1997 regarding the sharing of tap fees (the "Tap Fee Agreement'); and
I J0377
G. WHEREAS, EMD LLC, the District, Avon and the Authority desire that the
Water Service Agreement and Tap Fee Agreement both be amended as expressly set forth herein,
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Agreement, the sufficiency of which are mutually acknowledged, the Authority, Avon, the
District and EMD LLC agree as follows:
1. The Water Service Agreement and the Tap Fee Agreement shall remain in full
force and effect, except as amended and modified as set forth herein.
2. The Water Service Agreement shall be modifed as follows:
A. Service Contract. All references to "Service Contract" in the Water
Service Agreement shall refer to the Amended and Restated Master Service Contract dated,
January 1, 1998, between the Authority and its Participating Members (as defined therein), and
the amendments thereto;
B. Substitution of Avon. Except as noted in paragraphs 2(D), 2(E) and 3(B)
below, "Avon" shall be substituted for each and every reference to the "District' 'contained in the
Water Service Agreement so that Avon shall be responsible for every obligation, responsibility
and/or agreement of the District contained or referenced in the Water Service Agreement and so
that Avon shall receive every benefit of the District contained or referenced in the Water Service
Agreement, as amended hereby;
C. Obligations Under Water Service Agreement. The Authority and EMD
LLC shall retain all of their respective obligations, responsibilities, agreements and/or benefits
contained or referenced in the Water Service Agreement, as such may be amended by
paragraphs 2(A) and 2(B) herein, and the District shall no longer retain any of its obligations,
responsibilities, agreements and/or benefits contained or referenced in the Water Service
Agreement, except as noted in paragraphs 2(D), 2(E) and 3(B) herein;
D. Eagle-Park Reservoir. Notwithstanding the amendments and
modifications set forth in this paragraph 2, the water storage option granted to EMD LLC at
paragraph 7(b) of the Water Service Agreement by the District and Authority to purchase certain
stock in the Eagle Park Reservoir Company shall remain in full force and effect, as written,
without any of the amendments or modifications discussed in this paragraph 2, subject to all of
the express terms and conditions relevant to the option as expressly set forth in the Water Service
Agreement.
1t 0377 -2-
E. Use of Water Lines. Tha District agrees to allow EMD LLC and Avon to
use or enlarge any of its water lines if reasonably necessary to provide water service to the
Property and if such use or enlargement will not prevent the District from being able to provide
water service to its residents.
F. The last sentence of paragraph 1(b) of the Water Service Agreement is
amended in its entirety to read as follows:
The Authority and Avon acknowledge that EMD LLC will depend
upon the water supplied under this Agreement for all of its potable
water supply needs, except that EMD LLC may, with the consent
of Avon and the Authority, which consent shall not be
unreasonably withheld, supply its own potable water to the lots
described as Lots 56 to 96, The Village (at Avon), according to the
PUD/Sketch Plan approved by Avon. EMD LLC agrees that if
such lots are served by individual wells, appropriate fire
suppression facilities, as determined by Avon's fire chief pursuant
to applicable regulations in effect from time to time and applied on
a uniform and nondiscriminatory basis shall be included in
residences constructed on those lots. Moreover, if such lots are
served by individual wells and the wells subsequently fail, the
parties hereto acknowledge and agree that neither Avon or the
Authority shall have any obligation to extend water lines to
affected portions of the Property.
G. In paragraph 2(a) change "950,000 sq. ft. of commercial" to "650,000 sq.
ft. of commercial." At the end of paragraph 2(a) the following shall be added:
Nothing in this Agreement shall be construed to create any
agreement or obligation on the part of Avon to provide or
contribute water rights or water storage rights to the Authority or to
EMD LLC for water service to the Property or the Additional
Property other than or in addition to those water rights and water
storage rights described on RxWbi'bf this Agreement.
H. Paragraph 2(b) shall be amended in its entirety to read as follows:
EMD LLC agrees to lease without cost to Avon for sublease
without cost to the Authority, which sublease is hereby consented
to, a portion of the water rights described in Exhibit D attached
hereto, sufficient to replace the consumptive use associated with
development of the Property as ultimately decreed by the Water
Court. In no event shall the consumptive use of development on
the Property exceed the historic consumptive use of the water
rights described in Exhibit D as determined by the Water Court.
Any excess consumptive use credits quantified in the Water Case
1h0377 -3-
and not required to replace consumptive use associated with
development of the Property shall continue to be owned by EMD
LLC, shall be unencumbered by this lease and may be transferred
or sold at EMD LLC's sole discretion.
I. Paragraph 2(c) shall be amended in its entirety to read as follows:
Water Service to the Pronei?ty. The Authority shall provide retail
water service to individual users within the Property, pursuant to
the Service Contract, in an amount sufficient to meet the needs of
the Property and on the same charges, terms and conditions as
provided to the other customers of Avon.
J. Paragraph 3 shall be amended in its entirety to read as follows:
Service Charges_ As a condition to continuing service to any
portion of the Property, the owner of such property shall pay Plant
Investment Fees to the Authority which shall be determined,
charged and collected in the same manner as to the Contracting
Districts. Service charges for the provision of water service to the
Property shall be billed by and paid to the Authority; provided,
however, Avon shall retain the right to impose a surcharge in
addition to such service charges. It is the parties' intent however
that service charges, and any surcharge, for water service to the
Property shall be charged on the same basis and at the same rates
as to other customers of Avon.
K. Paragraph 4(b) shall be amended in its entirety to read as follows:
Met Reading and Billing. Meter reading, billing and collection
services shall be provided by the Authority to EMD LLC in the
same manner as provided to other customers of Avon.
L. Paragraph 6 shall be amended in its entirety to read as follows:
Operation and Maintenance Services. Avon or the Authority, as
may be determined between them, shall be responsible for
maintenance and operation of the main line extension(s) to and
through the Property and the Storage Tank. EMD LLC shall be
responsible for all necessary maintenance and repair of Nottingham
Reservoir. EMD LLC acknowledges that the services provided by
Avon or the Authority do not include maintenance and repair of
EMD LLC's other internal water distribution facilities within the
Property.
ttjo377 -4-
M. Paragraph 7(a) shall be amended to add the following two sentences at the
end of the paragraph:
The application filed in Case No. 97CW306 did not include the
Additional Property, but EMD LLC may, through a separate
application, seek to amend the augmentation plan or file a new
plan to replace depletions associated with the Additional Property.
Avon agrees to and approves the application as filed in Case
No. 97CW306, subject to the final decree reflecting water service
being provided by Avon and the Authority (rather than the District
and the Authority) consistent with this Agreement.
N. Delete paragraph 9.
0. Paragraph 10 shall be amended in its entirety to read as follows:
Service to Additional PropertT. EMD LLC or its affiliates own an
additional 175.5 acres located adjacent to the Property in a portion
of the NI/2 of Section 10, T. 5 S., R. 81 W. of the 6th P.M. (the
"Additional Property'). The Additional Property is further
described on Exhibit F attached hereto. In the event EMD LLC, its
affiliates or successors elect to obtain water or fire service for the
Additional Property in the future, such service shall be provided on
the same basis as service to Avon's customers, provided that the
Additional Property shall pay 1) for water, an amount equal to the
cost of service plus the estimated mill levy attributable to water
service for which such property would be responsible if it were a
part of Avon, and 2) for fire protection, an amount equal to the
estimated mill levy attributable to fire service for which such
property would be responsible if it were a part of Avon. EMD
LLC agrees that if the Additional Property is to be served by
individual wells, appropriate fire suppression facilities, as
determined by Avon's fire chief pursuant to applicable regulations
in effect from time to time and applied on a uniform and
nondiscriminatory basis shall be included in structures constructed
on the Additional Property. Moreover, if the Additional Property
is served by individual wells and the wells subsequently fail, the
parties hereto acknowledge and agree that neither Avon or the
Authority shall have any obligation to extend water lines to
affected portions of the Additional Property. Tap fee allocations
shall be on the same basis as for the Property, itself.
ttjo377 -5-
follows:
P. Paragraph I I (e) of the Water Service Agreement shall be amended as
(Remedies Upon Default. Upon the occurrence and
continuance of an event of default, the nondefaulting party shall be
entitled to enforce the provisions of this Agreement in law or in
equity, and relief in the nature of specific performance or damages
or both may be awarded, subject to the provisions of the laws of
the State of Colorado. The prevailing party in any legal action
shall be entitled to the recovery of its costs and expenses of such
action against the defaulting party. Costs and expenses shall
include, without limitation, reasonable attorneys' fees not to
exceed a maximum of $175,000.
3. Paragraphs 1 through 5 of the Tap Fee Agreement shall be replaced in their
entirety with the following:
. A. Collection of Tap Fees. Avon agrees that it shall collect all residential and
commercial tap fees for taps on the Property. However, if Avon does not collect a tap fee within
a reasonable period of time, EMD LLC or its successors and assigns shall have the same right as
Avon to collect such tap fee. Avon agrees that the tap fees shall be calculated and collected in
the same manner as for all others who receive such service from Avon.
B. Allocation of Tap Fees. EMD LLC or its successors and assigns shall be
entitled to receive one-hundred percent (100%) of all tap fees collected for taps on the Property,
but shall be required to convey to the District_twenty percent (20%). but not less than?800, of
each such tap fee within 30 days of receipt of the same by EMD LLC.
C. Water Development Fee. Avon agrees that EMD LLC or its successors
and assigns shall have the right to charge and retain any amount in excess of the regular tap fee
charged by Avon for the development of water service on the Property (the "Water Development
Fee's, and Avon agrees to bill and collect any such Water Development Fee together with its
regular tap fees. The District is not entitled to any portion of the Water Development Fee, except
that in the event that no regular tap fee is charged by Avon and EMD LLC, the District shall
receive the twenty percent (20%). but not less an $800 per tap referenced above..out of the
Water Development Fee within 30 days of receipt of the same by EMD LLC, which agrees to
assess at least that amount as an excess fee.
D. No Impairment of Fees. Avon agrees that it shall not undertake any action
in the future which impairs or impedes EMD LLC or its successors' and assigns' right and ability
to receive Avon's regular tap fees and the Water Development Fee for new taps on the Property.
E. Additional Property. Pursuant to paragraph 10 of the Water Service
Agreement, as modified herein, in the event EMD LLC, its affiliates or successors elect to obtain
water service for the Additional Property in the future, Avon has committed to provide such
service and the parties agree that the terms and conditions of this Agreement shall then also be
applicable to the Additional Property.
190377 -6-
4. Except as expressly amended or modified herein, all other terms and provisions of
the Water Service Agreement and Tap Fee Agreement remain unchanged and in full force and
effect.
Executed as of the date first set forth above.
EAGLE-VAIL METROPOLITAN DISTRICT, a
quasi-municipal corporation of the State of
Colorado
By:
Title:
TOWN OF AVON, a municipal corporation of the
State of Colorado
By:
Title:
EMD LMTED LIABILITY COMPANY, a
Colorado limited liability company
By:
Title-
PVRT NOTT I LLC, a Colorado limited liability
company
By: 'g'gz" 'I-Ag?
Title: Ai;m"Olc .0
1y0377 -7-
PVRT NOTT H LLC, a Colorado limited liability
company
STATE OF COLORADO )
ss.
COUNTY OF ?? )
By:
Title:
Ole,
PVRT NOTT III LLC, a Colorado limited liability
company
By:
Title:
UPPER EAGLE REGIONAL WATER
AUTHORITY, a quasi-municipal corporation of
the State of Colorado
e: .r
The foregoing First Amendment to Water Service and Tap Fee Allocation Agreement
was acknowledged before me s aio+K day of 1999, by
r' S /U? c?a? 5 as of the Eagle-Vail Metropolitan District, a
quasi-municipal corporation of the State of Colorado.
My commission expires 312WOC
Witness my hand and official seal.
L. C!j
O?Z'pTA ANotary
N?A 'AVBL?G: o0
9?F OF CO
1tj0371 -8-
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing First Amendment to Water Service and Tap Fee Allocation Agreement was
acknowledged before me this day of ,1999, by as
of the Town of Avon, a municipal corporation of the State of Colorado.
My commission expires
Witness my hand and official seal.
STATE OF COLORADO )
ss.
COUNTY OF tog"j, 6 )
Notary
The foregoing First Amendment to Water Service and Tap Fee Allocation Agreement was
acknowledged before me this 40 day of 1999, by '116. V64-- as
J)j?04of each of EMD Limited Liability Company, PVRT NOTT I LLC,
PVRT NOT II LLC, and PVRT NOTT III LLC, each of which are a Colorado limited liability
company.
My commission expires A 2b- ?
Witness my hand and official seal.
JaA sozoiTq
NOTA.?r ? Notary
to ?•o?
.41 ?,; ?°UBLlC e
Q?
O? CO?-O
110377 -9-
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing First Amendment to Water Service and Tap Fee Allocation Agreement
as aclrnowle ed before me this day of _ ?r , 1999, by
a as the Upper Eagle Regional Water
Authority, a quasi-municipal corporation of the State of Colorado.
My commission expires (o Q201
Witness my hand and official seal.
Notary
1h0377 -10-