TC Res. No. 2006-28 APPROVING NOTTINGHAM AND PUDER DITCH REPAIR,TOWN OF AVON, COLORADO
RESOLUTION NO. 06-28
Series of 2006
A RESOLUTION APPROVING NOTTINGHAM AND PUDER DITCH REPAIR,
MAINTENANCE AND MANAGEMENT AGREEMENT
WHEREAS, Traer Creek Metropolitan District, EMD Limited Liability Company and the Town
of Avon own certain water rights pertaining to the Nottingham and Puder Ditch; and
WHEREAS, the Nottingham and Puder Ditch has sustained some structural damage and is in
need of repair, ongoing maintenance and new measuring devices in order for the parties' to
convey their respective water rights through the ditch; and
WHEREAS, Traer Creek Metropolitan District, EMD Limited Liability Company and the Town
of Avon wish to enter into an agreement in order to provide for the repair, maintenance and
ongoing management of ditch operations and the allocation of costs associated therewith; and
WHEREAS, the Nottingham and Puder Ditch Repair, Maintenance and Management
Agreement provides for ditch repairs, routine ditch maintenance, ditch improvements and the
distribution of costs; and
WHEREAS, the Nottingham and Puder Ditch Repair, Maintenance and Management
Agreement has been reviewed and recommended for approval by Town Staff, Town Attorney
and Town Water Attorney.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Nottingham and Puder Ditch Repair, Maintenance and Management
Agreement is hereby approved.
ADOPTED THIS
ATTEST:
DAY OF JL4AQ-, , 2006.
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TOWN COUNCIL
TOWN AVON, COLORADO
Ronald C. Wolfe, Mayor
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This Agreement is made and entered into this day of , 2,006, by and,
among the Town of Avon, a Colorado municipal corporation ("Avon"), Traer Creek
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 ("EMD").
RECITALS
A. WHEREAS, the Nottingham and Puder Ditch diversion point is located on
the north bank of the Eagle River at a point whence the south quarter corner of Section 8,
T. 5 S., R. 81 W. of the 6th P.M. bears north 12° east 250 feet and said ditch continues
generally in a northwesterly direction from its diversion point to the Town of Avon;
B. WHEREAS, Avon, the District and EMD own certain water, rights
pertaining to the Nottingham and Puder Ditch as more particularly described in decrees
entered in Case Nos. 385, 963, 1193, W-3941, W=3664 and 97CW306.
C. WHEREAS, EMD's affiliate, Traer Creek LLC, is developing The Village
(at Avon) project,on property crossed by the Nottingham and Puder Ditch. Among other
uses, the ditch may supply nonpotable water for irrigation, flow through and recreational
purposes for the development and supply water to certain storage facilities;
D. WHEREAS, among other uses, Avon utilizes the Nottingham and Puder
Ditch to supply water to Nottingham Lake which is located down-ditch from The Village
(at Avon) development;
E. WHEREAS, the Nottingham and Puder Ditch has sustained some
structural damage and is in need of repair, ongoing maintenance and new measuring
devices in order for the parties' to convey their respective water rights through the ditch;
and
F. WHEREAS, Avon, the District and EMD wish to enter into this
agreement in 'order to provide for the repair, maintenance and"ongoing management of,
ditch operations and the allocation of costs associated therewith.
AGREEMENT
, NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and the mutual covenants set forth herein,
the parties agree as follows:
1. Ditch Repairs. The parties recognize that anew flume has recently been
installed in the Nottingham and Puder Ditch. In addition, sections of the ditch need to be
reworked in order to properly convey the parties' water rights. The parties may also wish
to repair the, headgate and diversion facility. (The new flume, ditch section and diversion,
(00026207/5)
facilities repairs are hereinafter referred to as the "Planned Repairs".) The parties agree
to meet each September to agree on a general repair plan for the Nottingham and Puder
Ditch for the following Spring ("Annual Repairs"). In the event of an emergency, either
party may take emergency steps to prevent flooding, damage to property,,or damage to
the ditch ("Emergency Repairs") and the parties shall then meet to discuss the situation
within forty-eight (48) hours. Expenses of Planned Repairs, Annual Repairs and
Emergency Repairs shall be divided between the parties as follows: Avon fifty percent
(50%); the District thirty percent (30%); and EMD twenty percent (20%). Neither the
District or EMD shall be liable for ditch repair costs below the point where the ditch
leaves the western end of The Village (at Avon) property.
2. Routine Ditch Maintenance. The parties also agree to confer each Spring
on routine ditch maintenance ("Routine Ditch Maintenance") and to either complete such
maintenance themselves or contract with a third party for such work. The expenses of
Routine Ditch Maintenance shall be divided between the parties as follows: Avon. fifty
percent (50%); the District thirty percent (30%); and EMD twenty percent (20%).
Neither the District or EMD shall be.liable for ditch maintenance costs below the point
where the ditch leaves the western end of The Village (at Avon) property. - ,
3. Obligation to Fund Annual Repairs and Routine Ditch Maintenance.
Subject to annual appropriations, the parties recognize and agree that each is obligated to
the extent of their respective cost allocations in paragraph 1 and paragraph 2 to
reasonably approve and fund the Annual Repairs and Routine Ditch Maintenance in order
to keep the ditch operable.
4. Ditch ImQrovements. The parties recognize, acknowledge and agree that
The Village (at Avon) development requires certain nonpotable water to be delivered
through the Nottingham and Puder Ditch for irrigation (including charging certain wet
well facilities), flow through, recreational purposes and to supply water storage facilities.
The parties agree to cooperate regarding the delivery of unused or flow through water
from the development back to the Eagle River. The parties will cooperate in utilizing
historic water drainage and discharge routes, the ditch system at the west end of the
development property, discharges to the Metcalf Ditch or-, as a last resort, discharge
down-ditch to Nottingham Lake. The ditch shall not be used as a stormwater or drainage
collection system and water shall not be delivered down ditch to Nottingham Lake that
differs materially in quality from water historically delivered through the ditch unless
such water quality is attributable to the Eagle River which is the source of the ditch. The
cost of any upgrades or repairs to such discharge facilities shall be the responsibility of
the District. The costs of any measuring devices or splitter boxes in the ditch at or above
the western end of The Village (at Avon) property shall be divided between the parties as
follows: Avon fifty percent (50%); the District thirty percent (30%); and EMD twenty
percent (20%). With respect to any other major repairs, improvements or significant
work including costs in excess of $50,000 ("Significant Projects"), any party desiring
same ("Initiating Party") shall give notice to the other parties of the work required and
the estimated cost of such work ("Cost Estimate"). Prior to undertaking Significant
Projects, the parties shall agree on the scope, timing and allocation of costs ("Allocated
Share") for such project and each party shall deposit its share of the costs in accordance
100026207/5) 2
with the escrow procedure more specifically set forth below. Notwithstanding anything
to the contrary set forth herein, the District and EMD may unilaterally, and in their sole
discretion, relocate or pipe the ditch in areas within The Village (at Avon) development
so long as (i) the carrying capacity of the ditch is not reduced below the current piped
capacity of the ditch; and (ii) the District and EMD pay the costs of such improvements.
5. Escrow Procedure. Upon the parties' agreement on the scope, timing and
allocation of costs for Significant Project(s), each party shall deposit in cash, with an
escrow agent, agreed upon by the parties ("Escrow Agent"), 120% of its Allocated Share
to undertake the Significant Project(s), based upon the Cost Estimate. The Escrow Agent
shall establish an escrow account for the purpose of funding the Significant Project(s)
("Escrow Account") to hold all cash deposits made under this Section, as well as interest
earned thereon. Interest earned on amounts on deposit shall be treated in all respects as
escrow funds. No portion thereof shall be subject to claims of the Escrow Agent's
general creditors. Cash deposits received under this Section shall not be commingled
with other funds. The parties will require the Escrow Agent to: (i) acknowledge that the
District and Town are "political subdivisions" and that the Escrow Account is a "public
deposit" as such terms are defined in the Public Deposit Protection Act of the State of,
Colorado (the "Act") and (ii) establish and maintain the Escrow Account with a "public
depository" as defined in the Act.
a. General Disbursement. The Initiating Party shall be entitled to
request a withdrawal of funds from the Escrow Account for payment of the costs for the
Significant Project(s), from time to time, in accordance with and subject to the following
procedure. The Initiating Party shall copy the other parties on all communications with
the Escrow Agent. All invoices and payment requests prepared in connection with the
Significant Project(s) shall be delivered to the Initiating Party by the general contractor
and other, contractors and materials suppliers, as applicable. Upon the Initiating Party's
approval of each payment request or invoice, as applicable, the Initiating Party shall
transmit the request to Escrow Agent. Promptly upon receipt of approval of each
payment request or invoice, Escrow Agent shall withdraw funds from the Escrow
Account and make payment directly to the contractor or materials supplier, as applicable,
less any retainage amount, upon receipt of: (i) the payment request or invoice and (ii) an
executed mechanics lien release in a form approved by the Initiating Party. The Initiating
Party shall secure the other parties' written consent to withdraw funds from the Escrow
Account in excess of line item limits contained in the Cost Estimate. The Initiating Party
shall provide to the Escrow Agent a copy of the other parties' written consent when
submitting a request to withdraw funds that exceeds the line item limits contained in the
Cost Estimate.
b. Final Disbursement. If the Significant Project(s) are completed
and the Escrow Agent is still holding funds in the Escrow Account, Escrow Agent shall
disburse said funds to the parties based upon each party's Allocated Share within ten (10)
days after receipt of. (i) in the case of the District or the Town, certification of the District
or the Town, as applicable, that publication of notice of final payment has been made in
accordance with statute; (ii) written approval of the final payment request by the other
parties; and (iii) executed mechanics lien waiver(s).
4.00026207 / 51 3
C. Retainage. The parties agree to comply with all statutory retainage
provisions relating to the Significant Project(s), as applicable.
d. Audit. The parties shall have the right, at their respective sole,
expense and at reasonable times, to conduct or to cause to be conducted an audit of the
Escrow Account and all disbursements for the Significant Project(s).
e. Expenses Relating to Escrow. The Escrow Agent shall be entitled
to deduct from the Escrow Account all administrative fees of the Escrow Agent relating
to the Escrow Account so long as the administrative`fees and expenses are in accordance
with Escrow Agent's fee schedule agreed to by the parties.
6. Prior Agreement. EMD and Avon's predecessor in interest, the Avon
Metropolitan District; entered into a ditch repair and maintenance agreement for the
Nottingham and Puder Ditch dated July 26, 1994. The parties agree that this agreement
shall supersede and fully replace the 1994 ditch repair and maintenance agreement in all
respects and the 1994 agreement shall, if recorded, be released.
7. Accounting for Nonpotable Uses at The Village (at Avon). The District
shall be responsible for installing necessary meters and otherwise accounting for
nonpotable water use at The Village (at Avon) development. The District shall provide
such accounting to the Upper Eagle Regional Water Authority to be incorporated into the
accounting for the augmentation plan in Case No. 97CW306.
8. Term. The initial term of this agreement shall be from the date of this
agreement until April 1, 2007. Any party may terminate this agreement by providing
written notice to the other parties prior to April 1, 2007. Thereafter, this.agreement shall
automatically renew itself on an annual basis on April 1st of each year unless any party
provides notice of termination prior to any April 1 st annual renewal date.
9. Access. Nothing in this agreement shall be construed or interpreted as
granting an easement, license or right of access over the real property of any other party
or any of its affiliated parties.
10. Notices. All notices, requests, consents and other communications
pertaining to this agreement shall be transmitted in writing and shall be deemed duly
given within 3 days of mailing or when actually received by any party if hand-delivered,
at their addresses below or any subsequent addresses provided to the other parties in
writing:
Notice to Avon:
Town Manager
Town of Avon
P.O. Box 975
400 Benchmark Road
Avon, CO 81620
{00026207/5} 4
With copy to:
John W. Dunn, Esq.
Dunn & Associates
P. O. Box 7717
Avon, CO 81620
Notice to District:
Traer Creek Metropolitan District
Attention: President
P.O. Box 640
Vail, CO 81658
With copies to:
Darlene Sisneros
McGeady'Sisneros, P.C.
1675 Broadway,,Suite 2100
Denver, CO 80202
Richard A. Johnson
Johnson & Repucci LLP
2521 Broadway, Suite A
Boulder, CO 80304
Notice to EMD:
EMD Limited Liability Company
Attention: Magnus Lindholm
P.O. Box 640
Vail, CO 81658
With copy to:
Richard A. Johnson
Johnson & Repucci LLP
2521 Broadway, Suite A
Boulder, CO 80304
11. Covenant. This agreement is intended and shall be a covenant running
with-and burdening the parties' respective interests in the Nottingham and Puder Ditch
and shall bind' and inure to the benefit of the parties' respective successors and assigns.
100026207/5) 5
12. Miscellaneous.
a. This agreement is not to be construed as a contractual waiver of
any immunities or defenses provided by the Governmental Immunity Act, C.R.S. §24-10-
101 et seq., or other statutes or common law.
b. The financial obligations of Avon and the District, and of any
governmental successor of any of the parties,, pursuant to this agreement shall be subject
to the annual budgeting and appropriation of funds therefore in accordance with Colorado
law.
C. This agreement may be amended from time to time by
amendments made by the parties in written form and executed in the same manner as this
agreement.
d. Each person executing this agreement represents and warrants that
he or she has been duly authorized by their party to execute this agreement and has
authority to bind said party to the terms and conditions hereof.
Executed and effective as of the date first set forth above.
By: -
Name: Daniel J. Leary
Title: President
EMD Limited Liability Company,
a Colorado limited liability company
By: LAVA CORPORATION, a Colorado
corporation, its Manager
By:
Name: Magnus Lindholm
Title: President
100026207 / 5) 6
TRAER CREEK METROPOLITAN
DISTRICT, a quasi-municipal
corporation and political subdivision
of the State of Colorado
I
STATE OF COLORADO - )
)ss.
COUNTY OF )
fo going was acknowledged before me this day of J wAU , 2006, by
i~pu e - as m of the town of Avon, a Colora Junicipal
corporation, o behalf of the mpany.
Witness my hand an_ eal.
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° t Pu lic
My commission ex-
OF CO
STATE OF COLORADO
MyComit~8 '+~/~"j 1zoj
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COUNTY OF )
The foregoing was acknowledged before me this _ day of , 2006, by,
Daniel J. Leary, as President of Traer Creek Metropolitan District, a quasi-municipal
corporation and political subdivision of the State of Colorado,- on behalf of the company.
Witness my hand and official seal.
Notary Public
My commission expires:
STATE OF COLORADO )
)ss.
COUNTY OF )
The foregoing was acknowledged before me this - day of , 2006, by
Magnus Lindholm, as President of Lava Corporation, a Colorado corporation, Manager
of EMD Limited Liability Company, 'a Colorado limited liability company, on behalf of
the corporation and the company.
Witness my hand and official seal.
Notary Public
My commission expires:
10MM2W / 517 7