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TC Res. No. 2006-21 APPROVING AMENDMENT TO RESTATED WATER LEASE ANDTOWN OF AVON, COLORADO RESOLUTION NO. 06-21 Series of 2006 A RESOLUTION APPROVING AMENDMENT TO RESTATED WATER LEASE AND SUPPLEMENTAL WATER LEASE BETWEEN THE TOWN OF AVON AND UPPER EAGLE REGIONAL WATER AUTHORITY FOR THE PROVISION OF WATER SERVICE FOR THE TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, an Amended and Restated Water Lease was entered into between the Town of Avon (Town) and Upper Eagle Regional Water Authority (Authority); and WHEREAS, the Amended and Restated Water Lease provided for the Lease of 348.17 acre-feet of consumptive water rights; and WHEREAS, THE Town and the Authority entered into a Supplemental Water Lease dated effective as of the 14th day of July 2005; and WHEREAS, under the Supplemental Lease, the Town leased to the Authority an additional 99.83 consumptive acre-feet for a total of 448 consumptive acre-feet as defined in the Town's augmentation plan decreed on September 7, 1988 in Case No. 84-CW225; and WHEREAS, the Supplemental Lease provided that the Authority would serve up to 4984 SFE's within the town; and WHEREAS, in connection with the development of and commitment to serve the Confluence Project to be located within the Town, the developer of that project has agreed to cause the dedication and conveyance to the Authority of additional water rights; and WHEREAS, as a result of the additional dedication of water rights in connection with the Confluence Project, the Town and Authority wish to increase the number of SFE's the Authority commits to serve within the Town by an additional 255.55 SFE's; and WHEREAS, the Amendment to Restated Water Lease and Supplemental Water Lease provides that the maximum number of SFE's is increased by 255.55 from 4,984 SF.E's to 5,239.55 SFE's subject to compliance with specified conditions and the dedication of additional water rights to the Authority, and WHEREAS, the Authority has approved a Water Service Agreement with East West Resort Development XIV, L.P., L.L.L.P:, a Delaware limited liability limited partnership, dated April 27, 2006 that specifies the additional water rights to be dedicated and contingencies to be complied with for service to the additional SFE's. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Amendment to Restated Water Lease and Supplemental Water Lease as hereto attached, is hereby approved and authorized for execution by the Town of Avon upon approval and execution of "Agreement for Dedication of Augmentation Water and'Related Water Rights" between East West Resort Development XIV, L.P., L.L.L.P. and the Town of Avon and receipt of a certified copy of the fully executed "Water Service Agreement" between Upper Eagle Regional Water Authority and East West Resort Development XIV, L.P., L.L.L.P. ADOPTED THIS 1 DAY OF , 2006. F F aver P \ b s~ ATTEST: ° COLOR TOWN COUNCIL TOWN-QF AVON, COLORADO yX04 ~ijd Ronald C. Wolfe, Mayor r a.tJt. G a M ~nny, wn Clerk Resolution No. 06-21 Water Lease Amend (Conflu) Page 2 of 2 AMENDMENT TO RESTATED WATER LEASE AND SUPPLEMENTAL WATER-LEASE 'M This Amendment is entered into to be effective as of the oar 'day of April, 2006, by and between the. Town of Avon (the "Town") and the Upper Eagle Regional Water Authority (the "Authority"). WHEREAS, the Town-and the Authority entered into an Amended and Restated Water Lease dated effective as of the 1st day of January, 1998 (the "Restated Lease");-and WHEREAS, under the Restated Lease,- the Town leased to the Authority water and water rights, ditches and ditch, rights, wells .and groundwater rights, springs and spring rights and - reservoirs and storage rights. described as an undivided 77.7% interest- in and to certain water rights more particularly described on Exhibit A attached-to the Restated Lease (the "Water.. Rights"); and WHEREAS, the Restated Lease states that it includes 348:17 consumptive acre-feet (77.7%) of the 448 consumptive acre-feet quantified in the augmentation plan decreed on August 14, 1980, in Case No. W73664, Water Division No. 5, as amended-in the augmentation plan decreed•on September 7, 1988, in Case No. 84CW225, Water Division No. 5; and WHEREAS, the Town and the Authority entered into a Supplemental Water Lease dated effective as of the 14th day of July, 2005 (the "Supplemental Lease"); WHEREAS, under the Supplemental Lease, the Town leased to the Authority the remaining undivided 22.3% interest in and to the water rights and the remaining 99.83 consumptive acre-feet (22.3%) of the 448 consumptive acre-feet that were described on Exhibit A to the Restated Lease (the "Supplemental Water Rights"); WHEREAS, as a result of the lease of the Water Rights under the Restated Lease and the -lease of the Supplemental Water-Rights under the Supplemental Lease, the Supplemental Lease provided that the Authority would serve up to 4984 SFE's within the Town; WHEREAS, in connection with the development of and commitment to serve the Confluence Project to be located within the Town, the developer of that project has agreed to cause the dedication and conveyance to the Authority of additional Water rights; and WHEREAS, the commitment to serve the Confluence Project is contingent upon (i) the relocation of the effluent discharge pipeline of the Avon Wastewater Treatment Plant to a location immediately downstream of the Authority's Raw Water Booster Station diversion point; and (ii) the agreement of the Colorado Water Conservation Board ("CWCB") that the point of discharge of the pipeline relocation is considered to be at or upstream of the CWCB's decreed Eagle River instream flow for water rights administration purposes (collectively, the "Contingencies'). WHEREAS, as a result of the additional dedication of water rights in connection with the Confluence Project, the Town and Authority wish to increase the number of SFE's the Authority commits to serve within the Town by an additional 255.55 SFEs. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. The Restated Lease and Supplemental Lease remain in full force and effect as amended by this Amendment. 2. Paragraph 3 of the Supplemental Water Lease is amended to increase the maximum number of SFE's to which the Authority will provide water service within the Town from 4,984 SFE's to 5239.55 SFE's. References to "SFE's" herein are to an SFE as defined in Section 2.31 of the Rules and Regulations for Water and Sewer Service, Eagle River Water Sanitation District/Upper Eagle Regional Water Authority, Revised 01/28/04 and include the definitions in Sections 2.1, 2.13, 2.25, and the fractional SFE equivalents for residential units (1.0 plus pro-rated additions over 3,000 square feet), efficiency units (0.50 SFE), accommodation units (0.35 SFE), expansions or remodels, and commercial equivalents based on meter size that are contained in Schedule of Fees and Charges for the Town of Avon, Effective January 1, 2005, that are attached to the Rules and Regulations for Water and Sewer Service, as Appendix A. 3. The terms of this Amendment are contingent upon and subject to the occurrence of the Contingencies and the dedication of the additional water rights to the Authority. IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed in their corporate names, all by the proper officers duly authorized thereto, to be effective as of the date first set forth above. UPPER EAGLE REGIONAL WATER AUTHORITY By: XLPA/ FE Fief ED , Chairman ATTEST By: -cp LJAc-TE)e J «E , Secretary • KB2440 2 • • E KB2440 TOWN OF AVON ATTEST By: r~ o~,,--Ku,n Town Manager r, ~ g r 7, h yr ' Y~ ~r w. ~ c1r 'a" COPY WATER SERVICE AGREEMENT This Agreement dated this J~~day of April, 2006, is between *the Upper Eagle Regional Water Authority, a quasi-municipal corporation and political subdivision of the State of Colorado (the "Authority"), and East West Resort Development UV L.P., L.L.L.P., a Delaware limited liability limited partnership (the "Company"). RECITALS A.. The Authority is a quasi-municipal corporation established pursuant,to an Intergoverhmenta lAgreement dated September 18, 1984, among the Arrowhead Metropolitan District, the Town of Avon as successor to the Avon Metropolitan District ("Avon', the Beaver Creek Metropolitan District, the Bent' Creek Metropolitan District; the Eagle:Vail -Metropolitan District, and the Edwards Metropolitan District (collectively the"Member Districts'l.. The Authority'is the owner or lessee of the water rights and facilities that provide water service by . contract to existing and'projected developments within the service area of its Member Districts'. " B. . The Company desires, to enter .into an agreement with the, Authority to have the Authority provide water service to certain real property located in Avon, Colorado, more particularly described in the-attached Exhibit A (the "Properly!,., . . C. Those seeking water service from the Authority must comply with the Authority's Water Dedication Policy, as adopted on February 22, 2001, and' amended on October 25, 2001 (the "Water Dedication Policy'), and all other fees, rules, regulations, and requirements of the Authority. D. The Water Dedication Policy requires in part that entities seeking new water. service must dedicate to the Authority one hundred and twenty percent of the water rights required to serve the developed property at full build out, or provide a cash payment of equal'' market value in lieu of such water rights. E. The proposed development of the Property at full build out will consist of 458.15 single family equivalent, residential units ("SFEs"), which-is 255.55 SFEs greater. than the - projected density of the Property for which the Authority obtained a lease of water rights from Avon. F. _To reduce the amount of water rights which must be dedicated to the Authority to comply with the Water Dedication Policy, the Company desire& (i). to relocate the effluent discharge pipeline of the Avon Wastewater Treatment Plant. (the "Pipeline") to 'a point 70 feet or less downstream,of the Authority's Raw Water Booster Pump diversion point (the "Raw Water Diversion Point"), and (ii) obtain the agreement of the Colorado Water Conservation Board ("CWCB') that the foregoing point of discharge of the Pipeline relocation is considered to be upstream of the CWCB's decreed Eagle River instream flow for water rights administration purposes. fd9653 G. The parties desire to enter into an agreement whereby the Company causes other parties to convey certain water rights (collectively, the "Water Rights') to the Authority to comply in part with the Water Dedication Policy, and meet such other requirements of-the Authority to obtain water service from the Authority. for the Property'. NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement, the sufficiency of which is hereby acknowledged, _the Authority and -the Company agree as follows: 1. Vail Associates Conveyance.- Simultaneous with the execution of this Agreement, the Company shall deliver-to the Authoritythe Special Warranty Deed attached hereto as Exhibit B and the Assignment attached as Exhibit C, both fully executed by Vail Associates, Inc. 2. Effluent Discharge Relocation. (a) The Company shall pay. for up to 90% of the cost of designing, permitting and constructing'the relocation -of the Pipeline to a point, 70 feet downstream of the Raw Water Diversion Point as-generally depicted on the attached Exhibit D (the "Pipeline Relocation'. The capacity of the Pipeline shall be 10. cfs. - (b) The Company shall obtain the written agreement of the CWCB that the point of discharge of the Pipeline Relocation is considered to be upstreain-of the RAW Water Diversion Point for purposes of administering the CWCB's applicable decreed-Eagle River instream flow water right and prevents injury to such instream flow water right. (c) In the event the Company is unable to obtain the written agreement of the CWCB as provided for in paragraph 2(b) above, then as an alternative to paragraph 2(a) above, the Company shall pay for the cost of designing, permitting and constructing-the relocation of the Pipeline to a point on the south bank of the Eagle River directly across the river from the Raw Water Diversion Point (the "Pipeline Relocation Extension"), and then obtain the written agreement of the CWCB that the point of discharge of the Pipeline Relocation Extension is' considered to be at or upstream of the Raw Water Diversion Point and prevents injury to the applicable CWCB Eagle River instream flow water right. 3. Water Service Commitment. Contingent upon and subject to (a) the requirements of paragraphs 1 and 2 above,'and (b) the secural of all permits for and the completion of construction of the applicable Pipeline Relocation or the Pipeline Relocation Extension, the Authority agrees to provide sufficient water to the Property on the same basis as other users within the Authority's service area to meet the construction, residential, municipal, irrigation, recreation and other incidental water demands of the Property. The Authority's water service commitment to the Property hereunder,. however, shall be limited to the municipal water supply requirements of a maximum of 458.15 SFEs. M9630 2 4. Customer Charges. Currently all customers within, Avon pay directly to the Authority plant investment fees and finished water storage fees at the time of hook up, and the monthly service charges of the Authority. Nothing contained in this- Agreement shall modify this arrangement and all customers within Avon shall continue to be directly responsible for, the payment of such fees and charges. 5. Miscellaneous: • (a) 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. :(b) 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. (c) The paragraph headings herein are inserted for convenience of reference only and do not define, limit or prescribe the scope of this Agreement. (d) The parties agree to execute such additional documents as may be reasonably required to implement the terms of this Agreement. (e) The terms of this Agreement shall be binding on the parties' successors and assigns. (f) Notwithstanding any interpretatiomof any term or condition to the contrary, water service to any customer, or property within Avon shall be subject to all other- rules, regulations, fees and requirements of the Authority. EXECUTED as of the date first set forth above. UPPER EAGLE REGIONAL WATER EAST WEST RESORT DEVELOPMENT XIV AUTHORITY, a quasi-municipal corporation L.P., L.L.L.P.; a Delaware limited liability limited of the State of Colorado partnership By: Name: AA/ Title: 7Z66I / f By: Name: Title: V1 r I M9630 3 STATE OF COLORADO ) ) ss. COUNTY OF 41~L_ ) The foregoing instrument was acknowledged before me this 4g day of 2006, by ' -A, of the U per Eagle Regional Water Authority, a quasi-municipal corporation and political subdivision of the State of Colorado. Witness STATE OF COLORADO ) ) ss. COUNTY OF ) My commission expires No The foregoing instrument was acknowledged before me this day of 2006, by,JAm P as ✓iCE Ateitib f of East West Resort evelopment XIV L.P., L.L.L.P., a Delaware limited liability limited partnership Witness my hand and official seal. My commission expires'j.21,,( k', 00° Public ro.tr►~i: A 10 y+ eo rB LO QP G MY COMMIMON EXPIRES MAY 48.2006 • • 4 1* fd9630 MY COMMISSION EXPIRES MAY 18.2008 n L_J • EXHIBIT A Description of Property 0 W9b3o EXHIBIT B Special Warranty Deed This Deed dated this day of April, 2006, is from Vail Associates, Inc., a Colorado corporation ("Vail") to the Upper Eagle Regional Water Authority, a quasi-municipal corporation and political subdivision of the State of Colorado (the "Authority"), whose address is 846 Forest Road, Vail, Colorado 81657. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Vail hereby grants, bargains, sells and conveys to the Authority all of Vail's right, title and interest in and to the following water and water rights: 5.47 of the 43.75 acre feet of consumptive use water, at a flow rate not to exceed 0.623 cfs (plus an additional flow of 0.623 cfs when not needed by the Beaver Creek Metropolitan District for domestic water supply purposes within its service area), from the Townsend Ditch water rights decreed by the District Court in and for Water Division No. 5 (the "Water Court") in Case Nos. W-2746, 85CW026 and 85CW608 for domestic, commercial and municipal purposes. This water right is more particularly described in the reservation contained in the Warranty Deed recorded at Reception No. 474393 of the Eagle County real property records. The 0.2 cfs of the Townsend Ditch water right reserved to E. Willis Nottingham by deed recorded on February 28, 1978, in the Eagle County, Colorado records (Reception No. 163766), shall be considered to be part of and burden this 43.75 acre feet and the 5.47 acre feet conveyed hereunder shall bear a proportionate share of this burden. However, by this conveyance, the Authority shall obtain no interest in the 0.033 cfs of the Townsend Ditch water right transferred to the Trapper's Cabin Well by decree of the Water Court in Case No. 87CW217, and this interest shall not burden the conveyance hereunder. Together with all appurtenances thereto, and warrants title to the same against all persons claiming under Vail. Executed as of the date first set forth above. _ VAIL ASSOCIATES, INC., a Colorado corporation By: Name: Title: M963o 2 0 STATE OF COLORADO COUNTY OF ) ss. The foregoing instrument was acknowledged before me this day of , 2006, by as of Vail Associates, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public • 9 M9630 3 EXHIBIT C Special Warranty Deed And Assignment FOR TEN DOLLARS and other good and valuable consideration, the receipt and sufficiency, of which are hereby acknowledge, Vail Associates, Inc., a Colorado corporation ("Grantor")hereby sells, grants, transfers, and assigns to the Upper Eagle Regional Water Authority ("Grantee"), whose address is 846 Forest Road, Vail, Colorado 81657, four (4) shares of Class B Series 2 stock (the "Subject Shares") in the Eagle Park Reservoir Company ("Company"), which are represented by Certificate No. (copy attached as Exhibit 1), together with all associated water rights, rights for the use of water, and other rights represented by the Subject Shares and warrants title to the same against all persons claiming under Grantor. Grantor does hereby irrevocably constitute and appoint the Secretary of the Company to transfer said Subject Shares upon the books of the Company with full power of substitution in the premises. EXECUTED as of this day of 92006. GRANTOR: VAIL ASSOCIATES, INC., a Colorado corporation STATE OF COLORADO ) )SS. COUNTY OF EAGLE ) me this fd9630 The foregoing Special Warranty Deed and Assignment was acknowledged before day of ; 2006,-by as of Vail Associates, Inc., a Colorado corporation. WITNESS my hand and official seal. My commission expires: Notary Public 4 • it I I'l 1 i I I 1 i~ 1 ■ 1 Cy / II IIT a ~ o O I m 0 a 0 V a Q Z Q D F- m X W •