TC Council Packet 11-06-2002Town Council Meetings
Roll Call Check Sheet
Date: 'l < L' Ic'-,
Michael Brown
Debbie Buckley v
Peter Buckley y
Mac McDevitt /
Buz Reynolds y
Brian Sipes
Judy Yoder
Roll calls are called at start of meeting and for Ordinances. Do not call Mayor except for
meeting roll call or to break a tie vote.
Seating arrangements from west to east: P. Buckley, Cuny, Reynolds, Yoder, McDevitt,
D. Buckley, Brown
Staff Present:
Bill Efting
V Larry Brooks
John Dunn
Patty McKenny
Jacquie Halburnt
Scott Wright
Jeff Layman
? Norm Wood
Meryl Jacobs
Bob Reed
Harry Taylor
Ruth Borne
Other Staff
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1ATown Clerk\Council\Packets\Council Meeting Check List.doc
TOWN OF AVON
SPECIAL COUNCIL MEETING AGENDA
NOVEMBER 6, 2002 - 8:30 AM
1. Call to Order / Roll Call
2. Citizen Input
3. Ordinances
4. Resolutions
5. Unfinished Business
a. The Village (at Avon) Water Lease & Water Sublease
6. New Business
7. Town-Manager Report
8. Town Attorney Report
9. Mayor Report
10. Other Business
11. Consent Agenda
a. Special Council Meeting Minutes on October 24, 2002
12. Adjournment
STATE OF COLORADO )
COUNTY OF EAGLE 1 SS
TOWN OF AVON
NOTICE IS HEREBY GIVEN THAT A SPECIAL COUNCIL MEETING OF THE
TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, WILL BE HELD
NOVEMBER 6, 2002, AT 8:30 A.M. IN THE MUNICIPAL BUILDING, 400
BENCHMARK ROAD, AVON, COLORADO FOR THE PURPOSE OF
DISCUSSING THE WATER LEASE.
TOWN OF AVON, COLORADO
BY:
io-'45
Patt M Kenny
Town Jerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON
ON NOVEMBER 4,2002:
AVON MUNICIPAL BUILDING, MAIN LOBBY
ALPINE BANK, MAIN LOBBY
AVON RECREATION CENTER, MAIN LOBBY
CITY MARKET, MAIN LOBBY
AGREEMENT
This Agreement is made and entered into this 4th day of November, 2002, among the
Eagle-Vail Metropolitan District, a quasi-municipal corporation and political subdivision of the
State of Colorado (the "District"), Town of Avon, a Colorado municipal corporation ("Avon"),
the Upper Eagle Regional Water Authority, a quasi-municipal corporation and political
subdivision of the State of Colorado (the "Authority"), and Traer Creek Metropolitan District, a
quasi-municipal corporation and political subdivision of the State of Colorado ("Traer Creek
District").
RECITALS
A. Traer Creek LLC, a Colorado limited liability company 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 (the "Property"). A
description of the Property is attached hereto as Exhibit A. The Property was previously owned
by EMD Limited Liability Company ("EMD LLC"), PVRT NOTT I LLC, PVRT NOTT H LLC
and PVRT NOTT III LLC; the PVRT NOTT I-III entities were merged into EMD LLC. EMD
LLC transferred its interest in the Property to Traer Creek LLC. Traer Creek LLC is developing
the Property.
B. 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.
C. Avon is a Colorado municipal corporation empowered to provide water, fire
protection, and recreational services to its residents, and by contract to properties outside of its
boundaries.
D. The Authority is a quasi-municipal corporation established pursuant to an
Intergovernmental Agreement, dated September 18, 1984, by the District, along with the
Arrowhead Metropolitan District, Avon as successor to Avon Metropolitan District, Beaver
Creek Metropolitan District, Berry Creek Metropolitan District, and Edwards Metropolitan
District.
E. Eagle Park Reservoir is a water storage facility located in the headwaters of the
East Fork of the Eagle River that is owned by the Eagle Park Reservoir Company (the "Reservoir
Company"). Eagle Park Reservoir has a fnm yield of 2013 acre feet that is allocated to the
shareholders of the Reservoir Company based on one acre foot per ten shares of the Reservoir
Company stock. The Authority acquired 3830 shares of the Reservoir Company stock or the
equivalent of 383 acre feet of the Reservoir's 2013 acre feet of firm annual yield. 850 shares of
the Reservoir Company stock, or the equivalent of 85 acre feet out of the Authority's 383 acre
feet, are allocated to service the District's water requirements.
fd7423
F. EMD LLC, the District, and the Authority entered into a Water Service
Agreement dated May 15, 1997 ("Service Agreement"). Section 7(b) of the Service Agreement
granted EMD LLC an option (the "Option") to pay for an amount of Reservoir Company stock
from the District's allocated share sufficient to yield 30 acre feet. This stock is to remain in the
ownership of the Authority, but be used to provide water service to the Property.
G. By letter dated December 1, 1998, EMD LLC, received formal notice that "the
Reservoir Company had acquired Eagle Park Reservoir and that the acquisition price per foot of
Eagle Park Reservoir yield is $5,787.40 plus accrued interest at the rate of 5.45% per annum
commencing on September 16, 1998." The Authority financed the acquisition of the Resei-voir
C om-anv stock with a loan (the "Loan") from the Colorado Water Conservation. Board
("CWCB" ).
H. By letter dated May 11, 1999, EMD LLC gave written notice of EMD LLC's
exercise of the Option under the terms of Section 7(b) of the Service Agreement.
I. 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 with respect
to certain aspects of the Service Agreement. Section 2(H) of the amendment amended paragraph
2(b) of the Service Agreement to provide for the lease from EMD LLC to Avon of sufficient
water rights to serve the Property as ultimately determined by the Water Court, and that Avon
was to sublease such water rights to the Authority.
J. Section 10 of the Service Agreement provided that in the event EMD LLC elects
to obtain water and fire protection service for an additional 175.5 acres of land adjacent to the
Property as described in Exhibit B (the "Additional Property"), the District agreed to provide
such service upon 60 days written notice and satisfaction of other terms and conditions. Section
2(M) of the Amendment acknowledged that the water rights application filed in Case No.
97CW306 did not include the Additional Property. To the extent water service is desired for the
Additional Property, additional water rights will have to be dedicated to Avon and the Authority
and a new augmentation plan will need to be adjudicated to replace depletions associated with
the Additional Property. Section 2(0) of the Amendment revised the terms and contingency for
water or fire protection service to the Additional Property in the event that EMD LLC electsseeks
to obtain such service in accordance with the provisions of paragraph 6 below which require the
furnishing of additional water rights to serve the Additional Property.
K. EMD LLC's rights, duties and obligations under the Option 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.
L. Traer Creek LLC's rights, duties and obligations under the Option 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.
fd7423 -2-
MN. The parties desire to implement the closing, of the exercise of the Option, provide
for water service to Traer Creek District hereunder, and the lease of water rights to Avon to
implement such water service.
NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Agreement, the sufficiency of which are mutually acknowledged, the District, Avon, the
Authority and Traer Creek District agree as follows.
Augmentation Water.
(a) Augmentation Water. Traer Creek District agrees to pay an has paid to
Aut13eritTthe suof , -hie h ' the amount equal to the cost of 300 shares of Class
A, Series 2 Reservoir Company stock that provides 30 acre feet of yield from Eagle Park
Reservoir for augmentation use in connection with the Property (the "Augmentation Water").
Upon the payment prescribed herein, Tthe Augmentation Water shall be used to provide Water
Service to the Property. In the event that any of the 300 shares of stock are not needed to provide
Augmentation Water for the Property, or any enlargements as set forth below in. a itig ren year,
those remaining shares not used shall be available to the Authority for other uses, including the
Additional Property, subject to the Authority's sole discretion. Traer Creek District shall. also be
permitted an enlargement of the properties which are covered by the Service Agreement. Such
enlargement may include up to twenty (20) additional acres. Requests for further enlargements
will be considered in good faith and are subject to a demonstration that adequate water rights
exist to service the retested expansion and that such water rights will be provided to the
Autl ari -FbVi n 01=' H I/o n .
(b) Shareholder Rights. Notwithstanding anything contained herein to the
contrary, the Authority shall remain the record titleholder of the 300 shares of Class A, Series 2
Reservoir Company stock and retains all shareholder rights. Moreover, this Agreement does not
require the Authority to consult with Traer Creek District regarding management decisions of the
stock, and does not create obligations to notice Traer Creek District about Reservoir Company
meetings and elections. In the event that the Authority is terminated, ceases to exist at some
future date or for any reason distributes the Class A, Series 2 Reservoir Company stock to its
members, the 300 shares of Class A, Series 2 Reservoir Company stock shall be transferred to
Avon free and clear of all liens and encumbrances in order for Avon to be able to use the
Augmentation Water for the Property. In the event that the Authority transfers its 300 shares to
Avon as stated above and Avon permanently ceases to provide water service to the Property, then
the 300 shares of Class A, Series Reservoir Company Stock shall be transferred to Traer Creek
District free and clear of all liens and encumbrances.
07423 -3-
(c) Price. T'he Option provided that the purchase price shall be on a per acre
foot basis, equal to the Authority's acquisition price of stock in the Reservoir Company, and that
the acquisition cost shall include the costs of all of the Authority's professional fees incurred in
acquiring Eagle Park Reservoir and developing yield for this reservoir. Pursuant to these terms,
the purchase price shall. consist of. (1) $173,622.00 for the per acre foot basis given 300 shares
at the cost per acre foot of $5,787.40; (2) $8,523.00 for Traer Creek District's proportion of
professional fees incurred in acquiring Eagle Park Reservoir and developing yield for Eagle Park
Reservoir; and (3) $2,990.79 in accrued interest calculated on the first payment of $11,880.23 at
the rate of 5.45% per annum commencing on September 16, 1.999, and extending through the
date of this Agreement, interest calculated on the second payment of $11,880.23 at the rate of
5.45% per annum commencing on September 16, 2000, and extending through the date of this
Agreement, and also interest calculated on the third. payment of $11.880.23 at the rate of 5.45%
per annum-1 commencing on September 16, 2001. and extending through the date of this
Agreement.
(d) PaSnnent. The payment of the purchase price shall be made to the
Auth.ori . ° as follows:
(1) On or before November 15. 2002, the sure of $47,154.48,
consisting of $8,523.00 for Traer Creek District's proportion of professional fees. $2,990.79 for
accrued interest and $35.640.69 for Traer Creek District's portion of the first. second and third
principal and interest payments paid to the CWCB by the Authori!y. The accrued interest above
will accomplish the appropriate adjustment to the original Amortization Schedule caused by the
first; second, and third payments not being made as shown; and
(2) On or before September 15 of each near for the life of the Loan;
Traer Creek :District shall tender yg},ment to the Authority in the amount of $11,880.23,
representing Traer Creek District's proportionate payment of principal and interest due CWCB.
2. Representations and Warranties.
(a) Traer Creek District represents and warrants to the Authority, the District
and Avon as follows:
(1) Traer Creek District has the full right and capacity to enter into this
Agreement.
(2) This Agreement will not conflict with or result in a breach of any
agreement or instrument by which Traer Creek District is bound, and such grant is not prohibited
by, nor will it constitute a violation of, any applicable law, rule, regulation, judgment, court order
or decree;
(3) The terms hereof constitute a valid, binding and enforceable
obligation of Traer Creek District.
fd7423 -4-
(4) EMD LLC and Traer Creek LLC have no interest in the Option.
(5) Traer Creek District is the owner of the Water Rights leased under
paragraph 6 and the attached Water Lease and shall provide evidence of such ownership
acceptable to the Authority.
(b) The Authority represents and warrants to Traer Creek District, the District
and Avon as follows:
(1) The Authority is the current owner of 3830 shares of Reservoir
Company stock, subject to the terms and conditions of various documents by which the Authority
financed the acquisition of its shares of stock;
(2) The Authority has the full right and capacity to enter into this
Agreement;
(3) The Authority's entering into this Agreement will not conflict with
or result in a breach of any agreement or instrument by which the Authority is bound, and is not
prohibited by, nor will it constitute a violation of, any applicable law, rule, regulation, judgment,
court order or decree;
(4) The terms hereof constitute a valid, binding and enforceable
obligation of the Authority.
(c) The District and Avon represent and warrant to Traer Creek District and
the Authority as follows:
(1) The District and Avon have the full right and capacity to enter into
this Agreement;
(2) Entering into this Agreement by the District and Avon will not
conflict with or result in a breach of any agreement or instrument by which the District and Avon
are bound, and is not prohibited by, nor will it constitute a violation of, any applicable law, rule,
regulation, judgment, court order or decree.
(3) The terms hereof constitute a valid, binding and enforceable
obligation of the District and Avon.
3. Default.
(a) Traer Creek District. It is an event of default by Traer Creek District or its
successors and assigns, as the case may be, if
M7423 -5-
(1) Pav in.ent of the amounts payable under this Agreement by Traer
Creek District are not made when due. Default will not occur until Avon or the Authority shall
have given. Traer Creek District thirty (30) days' written notice with the opportunity during such
time to cure the default;
(247) Traer Creek District defaults in the performance or observation of
any other covenants, agreements, or conditions on the part of Traer Creek District in this
Agreement or the Service Agreement. Default will not occur until Avon or the Authority shall
have given Traer Creek District thirty (30) days' written notice with the opportunity during such
time to cure the default; or
(2) Traer Creek District is dissolved and this Agreement is not
assigned in accordance with Section 5 of this Agreement.
(b) District. It is an event of default by the District if the District fails or
defaults in the performance or observation of the covenants, agreements, or conditions, or any of
them, on the part of the District under this Agreement; or-the Service Agreement or the
Amendment. Default will not occur until Traer Creek District shall have given the District thirty
(30) days' written notice and the District is given the opportunity during such time to cure the
default.
(c) Avon. It is an event of default by Avon if Avon fails or defaults in the
performance or observation of the covenants, agreements, or conditions, or any of them, on the
part of Avon under this Agreement, the Service Agreement or the Amendment. Default will not
occur until Traer Creek District shall have given Avon thirty (30) days' written notice and Avon
is given the opportunity during such time to cure the default, except when such default is for the
failure to provide water hereunder.
(d) Authori . It is an event of default by the Authority if the Authority fails
or defaults in the performance or observation of the covenants, agreements, or conditions, or any
of them, on the part of the Authority under this Agreement, er-the Service Agreement or the
Amendment. Default will not occur until Traer Creek District shall have given the Authority
thirty (30) days' written notice and the Authority is given the opportunity during such time to
cure the default, except when such default is for the failure to provide water hereunder.
4. 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. Alternatively, in the
event of a default by Traer Creek District then the Authority and Avon may terminate Water
Service to the Property until Traer Creek District shall have cured said default. The prevailing
party in any legal or administrative action shall be entitled to the recovery of its costs and
expenses of such action, including without limitation, reasonable attorneys' fees.
07423 -6-
5. Assignment. Traer Creek District may assign its rights under this Agreement to
any affiliates, successors, or to a subsequent special district formed, in whole or in part, for the
purpose of holding, owning or operating its water system for the Property pursuant to the terms
herein, so long as notice and copies of relevant documentation of the assignment are provided to
the District, Avon and the Authority. The District, Avon and Authority may also assign their
rights hereunder including, without limitation, any assignment in connection with the future
consolidation and Traer Creek District agrees to cooperate with respect to the same.
6. Lease of Water Rights. Concurrent with the execution of this Agreement, Traer
Creek District agrees to execute the Water Lease attached hereto as Exhibit C, and Avon shall
execute the Sublease to the Authority attached hereto as Exhibit D. The Water Lease is intended
to provide sufficient water rights to serve the Property. In the event EMD LLC or Traer Creek
District elects to obtain water service for the Additional Property, EMD LLC or Traer Creek
District shall be obligated to furnish additional water rights to the Authority to serve the
Additional Property.
7. Additional Storage Water. The parties agree that the Traer Creek District needs to
secure an additional 9.8 acre feet of storage water from Wolford Mountain Reservoir,
Nottingham Reservoir, or another storage facility acceptable to 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 decreed in Water Division No. 5
Case No. 97CW306 (the "Augmentation Plan") needs to be amended to include the Additional
Storage Water. Traer Creek District agrees to secure, prepay the cost of, and lcasen to Avon
who will in turn sublease to the Authority the Additional Storage Water within 3 months of the
date of this Agreement. 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 the Authority for all costs
and fees (including legal, engineering and court fees) incurred by the Authority in securing such
an amendment. The parties recognize acknowledge and agree that Nottingham Reservoir will be
emptied for maintenance and repairs in late 2002 or early 2003, and the emptying of such
reservoir shall not constitute a default or breach under this Agreement or the Water Lease or
Sublease provided. for in paragraph 6 above.
8. Miscellaneous.
(a) Illegality Invalidity Unenforceability and Impossibility. If any provision
of this Agreement shall prove to be illegal, invalid, unenforceable or impossible to perform, the
remainder of this agreement shall not be affected thereby, and in lieu of each provision of this
Agreement that is illegal, invalid, unenforceable or impossible to perform, there shall be added as
part of this Agreement a provision as similar in terms to such illegal, invalid, unenforceable or
impossible provision as may be possible and or legal, valid, enforceable and capable of
performance.
fd7423 -7-
(b) Amendments. This Agreement may not be amended nor any rights
hereunder waived except by an instrument in writing signed by the parties sought to be charged
with such amendment or waiver.
(c) Governing Law and Venue. This Agreement shall be interpreted in
accordance with and governed by the laws of the State of Colorado. The forum for resolution of
any and all disputes arising hereunder shall be the District Court in and for Eagle County, State
of Colorado.
(d) Paragraph Headings. The paragraph headings herein are inserted for
convenience of reference only and do not define, limit or prescribe the scope of this Agreement
or any exhibit attached hereto.
(e) Term. The term of this Agreement is perpetual.
(f) Proper Authority. The parties represent and warrant that they have taken
all actions required and secured the necessary approvals to enter into this Agreement.
(g) Further Execution of Necessary Documents. The parties agree to execute
such additional documents as may be reasonably required to implement the terms of this
Agreement.
(h) Water Rights Conveyance. Nothing contained in this Agreement shall
modify the obligation of Traer Creek District pursuant to the Rules and Regulations of the
Authority, and the Amended and Restated Service Contract dated January 1, 1998, between the
Authority and Avon, as it may be amended, to convey to Avon the water rights which are the
subject of the Water Lease, and such future water rights which may be required to serve the
Additional Property. Such conveyance to Avon shall occur within 30 days of notice given by the
Authority to Avon and the Traer Creek District. Upon such conveyance the sublease from Avon
to the Authority shall be converted into a lease.
EXECUTED as of the date set forth above.
EAGLE-VAIL METROPOLITAN,
a quasi-municipal corporation of the State of Colorado
By:_
Name:
Title:
TOWN OF AVON, a Colorado municipal corporation
By:
fd7423 -8-
Name:
Title:
TRAER CREEK METROPOLITAN, a quasi-municipal
corporation and political subdivision of the State of
Colorado
By:_
Name:
Title:
UPPER EAGLE REGIONAL WATER AUTHORITY, a
quasi-municipal corporation of the State of Colorado
By:_
Name:
Title:
fd7423 -9-
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2002, by as President of the Eagle-Vail Metropolitan
District, a quasi-municipal corporation of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
, 2002, by as
a quasi-municipal corporation of the State of Colorado.
Witness my hand and official seal.
day of
of the Town of Avon,
fd7423 _10-
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2002, by as President of the Traer Creek Metropolitan
District, a quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires:
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2002, by as President of the Upper Eagle Regional
Water Authority, a quasi-municipal corporation fo the State of Colorado.
Witness my hand and official seal.
Notary Public
My commission expires:
fd7423 -1 1-
Oct-7.9-02 03:34pm From-Dunn I Causey,LLC
PA-RCrL DRSCrT'IQN
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Oct-29-02 03:34pm
From-Dunn 8 Causey,LLC +9707488881 T-820 P.003/013 F-075
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rig.. 4 hzQiac g the arc of a cur-, e to ?e
• _ a ramous of 2033.48 feet, an iate-=z.? aa.cle
03.44'42", and z chord that bets N70.30109"R s of
3766.37'4$"n 527.88 feed (3) 231.I2 feet Z? 132.89 .?e8tt (2)
vag the are of a-ve
to the _e_t, having a radius of 5779-70 feet, am 42' 17' Z8", and z chord that irtezLZ1 acle o;
040'14'?I"f d bears N69 46 3Z W 231-09 feet; (q
20 feet; (5) 1142-50 feet along the arc o, a ux-:e
to the left.' rarinc a radius of 5759.70 feet, an inter-,a -' sle
11.21'55°, anc a chord that bears N76'32102"W z at
N92.13' 00"R 1236.53 feet; (7) 548.06 feet aloe the u 140 are of P_ (8?
to the risbt, hari3g a radius of 2880.00 feet an irte=zzl
of ??
16.42'20", and a chord that bears 473951's5"W 546.12 angle o`
eet
u-- (g)
X00.12'23"W 22.04 feet; (9) 28.04 feet along the are of a c
the right, . ha4jns a radius of 1860.00 fe_t angle of
00.57,'50 , an 3.nte*zta3 nag=e of
and z chord that beers N64147135"W 28.04 fee=i
X64.22' 00"r'Y 377.10 feet; thence, deputing said ao?'ther-1zi (I0)
vay line:, 525.38' 00"d 100.00 feet, to the son Y g3:t-
thexly
line of the Denver and Riff Grande Western Railroad,. c_-ti.a: - -
z2sQ I?+ =9 as
the existing TowB of Avon Peunda=Y; .thence, along WP'4 z=tberly
right-of-my line and existing Town of Avon Eaunc
three courses along the northerly line of the *"a?rng
Tcnm of Avon by' drdinance 86-3.0': • Parcel annexed to the
(1) A54 22 00"W 2064.00 fg*ti (2)
968.59 feet along the axc of a curve to the left, havin
of 34327.50 feet, as internal znq=e 03,"37t00 • gs
beers R65.10'3D•W 968.56 feet; ; • mad a' chord
Coat ' (3) N659391 00-W 527.60 feed tb,emce
s.auing along said southerly right-of-Way lime and edish,
5
of Avor. Boundary the fo11ow3ng course along the aortberl
Y e of
e of
the pa=e a=axed to the Town of Avast
X6$058108"A 677.83 feet; thence de Ordlbacg el-38,'
way line and continain along r P?t?g said sontheslp r=aht-o?-
9 g the bc=dary of the parcel an_-exed to
the Tcvn.of Avon by 02dinance 81-38, N24'01115211E 100.00 feet, to
the northerly right-of-way Iiae of the Deaver and Rio Grande
Weste_n Railroad and the Southeest canner of rot 22=clmftrk
Beaver Creek; thence, departing said northerly r_ gh''hB fimy l at
and continning along the ex.Ls--, rg T°? -o-uap ihe
following two courses orlon the eastex-l line of ' of 'Avon Hva?da? the
originally incorporated as the Town of Av zX as defined in Ord pax
78-4: (1) N18'S9'40`2 .995.99 feet; ce
bearing of 7423.5510 2 "W 268.23 feet (record di ttaance and he ice mad
NZ59101030W 235.72 feet), to the gauthe=Zg of
1/4 of szid Section 12; 'thence, along said Une of
oatherl y c U 1i4 NZ
and
existi.'1g Tc%M of Aron Mounda.x7 the following coutsealQag the
southerly line of the parcel annexed to
4_dinan,ce 81-20, a calculated distance the -'`o`ra of AFB
2192.30 feet (record distance and b and bearing of 58?'S?'41
feet), 46--b the westerly line of said Seition of 5gq-5-j,Q7ftLr 2184-
7; thence, along sai¢
westerly line and exisor„m of Avon Boundary the fol3,awiag
caatse alvag tIse easterly
of Avon by Oxd.tnaIlCe 8I-20 and or parcels annexed to the T,owa
mad bearing of N00'Il'27"R 232I?.54 f ?t 34r a measured distance
bearing of NOQ-10.14 wW 660-92 fe min (record 0 and ce and
per vrrti.nanee 81--20 and record
A-Z
Oct-29-02 03:34pm From-Dunn I Causay,LLC
+9707499981 T-920 P.004013 F-075
distance and bearing of NOU -10' 14 "nW 660.83
the point, at be9nnincr centai?t Pe.T ordi :anc? el-3?) t`v
i q 967.07 ac.esr more oz Iess,
ExCEPT31vG FROM the ferecoisq parcel description a-11 portic-s of
cesc_It,ed p_epe--tv that ccnst=ttte
tike
Rzar.t-v=-i+'ZV zrc the DeAce= RIO Cxthe I?te_state EicnvaLy No. i0
a*ae T, or e_? Railrcad Richt-
FTa` r Which portions ccntain 99_2< ae- re.af-
of the cei re_itcluced '? ?o,e or less. '-'he =et. are`
mere or l ss, in tbi; aZzexatien is 867.63 acres,
A-3
Oct-28-02 03:35pm From-Dunn 8 Causey,LLC +8707488881 T-820 P.005/013 F-075
PAJRCPI, DESCRT_yfiIOy
That Fz of Sectio=s a, 9 6 10
the Si=th P_? a C a ship 5 South, P, ce rem o_
Lai. ?L2C? n
Dependent Re;r--vey o: szi ?' "yenc a °_ zdc, zcccrqw to the
3°33 r Cc ";
e _ Inte.R- acce_ted
nz5r2 The D.?? 2 SC t 2sr rs or General LandYOf a _R
..c.. .allows:
Beci= jg at the ;Vc h 1/4 come= of said Section S;
tl;e zie_t.;e_3r 1==e of Said Sectio= 8 tteaCa P-10=7
-the True Point of Sec_•:.nnim-c- t e? Iv'88'42 ?B'B 830_00 fee`, to
oche=;p = h ce, contintinc elonc
1910.72 feet, tc the wo:?thwe Said
of said sects cn ey -?:Be,ce, along the northe_Iy 2i=L' ? ccrer
9, X83'Zn X30"E 2773-27-feet, to the Nc:rth of e= Section
corner of said
Section S; thence, ccntinaimg alone said
IM 3624312"Z 2772.60 "Feet, to the Ncz-thuest c II°=t.+el?s nine,
lO' thence, along the ao herly - crle' o` va4d Sectjam
r line of -said S
N86'39'24`E 2682.23 ieet; thence, de_a=tiIIg s action IOr
S O I.3S ' 07 "A 2E.9.9.66 f e et, to s onthe_--1 said tior /4 M line,
said Section 20; thence, t? cag the south i?ep o ]._f she he of xE 1/4 said XW l/4 of
114, S86022123- W 1304.06 feet, to the SE I/4 :9W
said Section l0; thence, along Ce3tez Aes•? 11:L6
eorb.er of
114 of sad $ect?
an 10, S0I -32150'17 3 933 feet,
e to the So 114 Sly
3/16 coiner of said 5ect'r cm I O • thence Southwest
said Np 1f4' S-n7 1/4, 586'32147"R 1384' '?D:L • .along the ecutlx l_v Sze of
cornet of said section,- 9 6 10; thence, along feet, to the Sam 3/I6
, alaaa the sont,$er?y X.iae of"
the 2M 114 SE 1/4• of said Section 9 577010' 1
the Southeast 1116 corner of said 'Section 9,. themce,3 ?'?
easterly Line of the SW 114 SE 1/4 of said &
1475.32 feet, to the Bast 1/15 cora.er of said Sect Ion 9 ?01 Section
26 of said Toti-nshl-b 5 Sonth, Rance 8I, West of the 5?
Meridian; thence, zlong the southerly ?c'th :Principal
572'20131"W 1450.43 feet, to the S?l.?ne of said SW 1/4 M 1/4,
1/4
II
9; themcef along the ' westerly line f4 zid ca=nes SA /n of said Z secti
f
W01034'1$"E 1601_52 feet, to the center SvQt
Section 9; thence, s? cag the sotrtb n h if 16 core o said
said Section 9, SB5. 07' 30 `W ' 1378. y line of the = Z /4 SW 1/4 of
corner of said Section 9; thence'I9 feet. to the Southwest 1 S6
1/4 SR' 1/4 of said Section 9 , , Sol-33'.13"W ttQr2y Ziae , Q;f the
the
existing fiowII of Avon Bound .903-02 feet, to the
exis, the Poll azYi thence, de actin said y
a?sQ five courses along said e?t ., eastern,
PoundarY:w M) Rest 2595.53 Feet; (2) No_s 9. Town of Avon 93 N27.3913a E 212I.59 feet; (4) N17'3'30" c9 .20 fee t; (3)
N56 3D 00"r'T 1274.62 feet; to the 1-?3O feet; (5)
coutain3ag 922-16 acres, more or lesS.?e Point of Begin="'ge
T
Oct-29-02 03:35pm From-Dunn i Causay,LLC
PARCEL DESCRIPTION
+9707488881 T-820 P.000/013 F-075
THE ADDITIONAL PROPERTY
Tbvse pasts of the N 1/2 -of Section 10, 'rte=hip 5 Soutlz'r Rarst e=
of the Sixth Principal Mer?id%aa, Eagle County, Colorado
according to the Dependent Resurvey of said TCW=zh2p azd Raager-
accepted November 1, 2943 by the Der-artmetat of the Interior General
La-*2d Offics in Washington, D_C., described as a whole as follows:
.3eeianing at the Ncz tbe$st corner of sa_d Section 10; thence the
-
foilowjng twp Cearzes along the easterly ?ine of said Section iq: .
(1) 5010371014W 2347.04 feet, to the P 11-36 corner of said Seta=
10 and Section 11 of Said Township and Ramge; (2) S01'3710111W
2347.04 feet, -to the 1/4 corner of said SectUenrx 10 anal 11; thence
the -following tbree courses along the east-west centpsliae of said
Section 20: (1) $8632'23"W 1382.61 feet, to the CE 1/16 eosae= of
said sectioa•I0; (2) Se6'32-23-W 1381.62 feet, to the C 2/4 corner
of said Section 10; .(3) S86-32'23"N 82.37 feet;. thence, departing
said east-west centerline, 2101'34' 07"Z 2699.66 feet, to the
nc therZy line of 'said Section 10; t1`leace the following tl?ree-
courses alonq the nortberly Una of said Sectxva 20:
N8d'34324va 81.35 feetr to the 1/4 corn= of $aid Seatiea 10 aXd
Section 3 of Said Toimsbip and Range; (2) 1486.39'20"E 1382.32 feft,
to the 2 1116 corner of said Section '20 and 3; (3) 1q86.39.20R$
1382-.51 feet; to the point of beginning.
h -
Exhibit C
WATER LEASE
This Water Lease ("Lease") is entered into this 4th day of November, 2002, between
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 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 specified 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 Properly to Traer Creek LLC.
Whereas, EMD LLC, the District, Town of Avon, a Colorado municipal corporation
("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 water rights sufficient to replace
the consumptive use associated with the development of the Property as ultimately decreed by
the Water Court.
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, the Authority, the District, Avon and Traer Creek District entered into an
Agreement dated November 4, 2002 ("2002 Agreement"). Section 6 of the 2002 Agreement
fd7423
-1-
provides that Traer Creek District shall lease to Avon the water rights that are the subject of this
Lease, and that such lease to Avon shall substitute for and satisfy the obligations of Sections 2(B)
and 2(H) of the Amendment.
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) 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"), together with all associated changes of water rights decreed therein
related to the Amount Leased;
(b) the historic consumptive use credits dedicated to the Augmentation Plan
and described in the attached Exhibit 3;
(c) 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 leaseassip to Avon for subsequent sublease 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 each of them in securing such an amendment ; and
(d) 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 becomes
necessary from time to time to provide water service for the Property, reserving into Traer Creek
District rights of access and use of the same to the extent not required to provide water service
for the Property. 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.
fd7423 -2-
2. Term. The term of this Lease shall be perpetual, provided however, that in the
event that the Authority and Avon fail to provide water service to the Property (excepting
temporary cessation of water service due to reasonable maintenance requirements or emergency
conditions), Traer Creek District may terminate this Lease upon sixty (60) days' written notice.
3. Payment. The Lease Water Rights shall be leased to Avon without charge. The
consideration for this Lease is the water service provided pursuant to the Service Agreement, the
Amendment, and the 2002 Agreement.
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 parry shall be entitled to recover its costs and expenses of
litigation, including its reasonable expert witness and attorney's fees, and any costs and expenses,
including attorney's fees, incurred in any appeal or collection actions related thereto.
Executed to be effective the date first set forth above.
TRAER CREEK METROPOLITAN, a quasi-municipal
corporation and political subdivision of the State of
Colorado
By:
Name:
Title:
TOWN OF AVON, a Colorado municipal corporation
By:
Name:
Title:
07423 -3-
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2002, by as President of the Traer Creek Metropolitan
District, a quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
STATE OF COLORADO )
) ss.
COUNTY OF )
Notary Public
The foregoing instrument was acknowledged before me this
, 2002, by as
a quasi-municipal corporation of the State of Colorado.
Witness my hand and official seal.
day of
of the Town of Avon,
07423 _ 4_
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H
Exhibit D
WATER SUBLEASE
This Water Sublease ("Sublease") is entered into this 4th day of November, 2002,
between the Town of Avon, a Colorado municipal corporation ("Avon") 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 specified 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, Town of Avon, a Colorado municipal corporation
("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 water rights sufficient to replace
the consumptive use associated with the development of the Property as ultimately decreed by
the Water Court.
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 the Traer Creek Metropolitan District (the "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, the Authority, the District, Avon and Traer Creek District entered into an
Agreement dated November 4, 2002 ("2002 Agreement"). Section 6 of the 2002 Agreement
tC0910 -1-
provides that Traer Creek District shall lease to Avon the water rights that are the subject of this
Lease, and that such lease to Avon shall satisfy the obligations of Sections 2(B) and 2(H) of the
Amendment. In turn, Section 6 of the 2002 Agreement provides that Avon shall sublease to the
Authority the water rights that are the subject of this Lease.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Sublease. Avon hereby subleases to the Authority all of Avon's right, title and/or
interests (beneficial or other interests) 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"), together with all associated changes of water rights decreed therein
related to the Amount Leased;
(b) the historic consumptive use credits dedicated to the Augmentation Plan
and described in the attached Exhibit 3;
(c) an additional 9.8 acre feet of storage water from Wolford Mountain
Reservoir, Nottingham Reservoir, or another storage facility acceptable to the Authority ("the
Additional Storage Water") to provide sufficient water rights to serve the Property which is
hereinafter leased by Traer Creek District to Avon pursuant to paragraph 7 of the 2002
Agreement.
(d) 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 becomes
necessary from time to time to provide water service for the Property, reserving into Traer Creek
District rights of access and use of the same to the extent not required to provide water service
for the Property. 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.
2. Term. The term of this Sublease shall be perpetual, provided however, that in the
event that the Authority fails to provide water service to the Property (excepting temporary
cessation of water service due to reasonable maintenance requirements or emergency conditions),
Avon may terminate this Sublease upon sixty (60) days' written notice.
WON -2-
3. Payment. The Lease 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, the Amendment, and the 2002 Agreement.
4. Miscellaneous.
(a) This Sublease may not be amended except by a written document signed
by the parties which expressly references this Lease.
(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 attorney's fees, and any costs and expenses,
including attorney's 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:
Title:
UPPER EAGLE REGIONAL WATER AUTHORITY, a
quasi-municipal corporation and political subdivision of the
State of Colorado
By:_
Name:
Title:
tco9lo -3-
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 and political subdivision of the State of
Colorado.
Witness my hand and official seal.
Notary Public
My commission expires:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
, 2002, by as
a quasi-municipal corporation of the State of Colorado.
Witness my hand and official seal.
day of
of the Town of Avon,
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MINUTES OF THE SPECIAL MEETING OF THE TOWN COUNCIL
HELD OCTOBER 24, 2002
A regular meeting of the Town of Avon, Colorado was held in the Municipal Building, 400
Benchmark Road, Avon, Colorado in the Council Chambers.
Mayor Judy Yoder called the meeting to order at 8:00 AM. A roll call was taken with
Councilors Michael Brown, Debbie Buckley, Peter Buckley, Mac McDevitt, Brian Sipes and
Mayor Pro Tem Buz Reynolds present. Also present were Town Manager Bill Efting, Assistant
Town Manager Larry Brooks, Town Attorney John Dunn, Town Clerk Patty McKenny, Town
Engineer Norm Wood. Others present included Gary Greer, with Sherman & Howard and
Avon's water attorney, via telephone, Shane Bohart and Rick Johnson, Traer Creek Metro
District representatives, Glenn Porzak, attorney for Upper Eagle River Water Authority
(UERWA), Matt Zalaznick, Vail Daily.
New Business
The Village (at Avon) Water Lease & Water Sublease
Town Attorney John Dunn explained the current situation with the proposed water agreements
between Traer Creek Metro District and the Town of Avon. The Special Meeting was called to
discuss the agreements and vote on whether or not to enter into them Agreement with Traer
Creek Metro District. Currently, Traer Creek will lease its water rights to the town, then the
town will sublease those water rights to UERWA.
The major issues discussed by those present included:
a. if there is adequate water rights to service the project.
b. if there is an adequate amount of water storage.
C. if there are appropriate storage locations.
Attorney John Dunn outlined two potential issues for the Town:
a. The contractual obligation of the Town to agree to lease and sublease the water rights and
if the Town is acting in accordance with the other executed contracts.
b. Whether or not there is enough water for the project. The Town's water advisors indicate
the plan provides for sufficient amounts of water to service the project.
Glen Porzak, attorney for UERWA, does not think the plan includes enough water and does not
agree with the locations of the storage facilities, i.e. Eagle Park. As well he stated that all
agreements in place are subject to rules and regulations of the UERWA and they are currently in
violation of some language which conveys water rights to Avon. He indicated that the Authority
will deny these agreements.
Rick Johnson provided some historical information as to how the agreements were entered into
and how the calculations were made regarding the amount of water required. Water attorney
Gary Greer noted that there is more water identified in the augmentation plan than is required for
the project. Dunn noted that the Town did not cut the original deal, which was negotiated by
Eagle-Vail Metro District. The Water Authority will make the final determination as to whether
or not there are enough water rights to service the project
Both Dunn and Greer recommended Council accept the lease tendered in light of previous
agreements that have been signed. The Town has already entered into such agreements, which
have obligated them to move forward with these agreement as well.
Councilor Reynolds moved to authorize the Mayor to sign the water lease and water sublease
agreements on behalf of the Town. Councilor D. Buckley seconded the motion.
Councilor McDevitt recommended that it would be prudent for the Town to continue to review
the 2002 language.
Mayor Yoder asked for those in favor of the motion. Those in favor are as follows: Brown, D.
Buckley, P. Buckley, McDevitt, Sipes and those opposed: Reynolds. The motion passed with a
four-to-one vote.
There being no further business to come before the Council, a motion was made to adjourn. The
meeting adjourned at 9 AM.
RESPECTFULLY SUBMITTED:
Patty McKenny, Town Clerk
APPROVED:
Michael Brown
Debbie Buckley
Peter Buckley
Mac McDevitt
Buz Reynolds
Brian Sipes
Judy Yoder
Special Council Meeting
October 24, 2002
Page 2 of 2