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TC Res. No. 2014-16 Approving a Third Supplemental Water Lease AG w UERWATOWN OF AVON RESOLUTION NO. 14 -16 SERIES OF 2014 A RESOLUTION APPROVING A THIRD SUPPLEMENTAL WATER LEASE AGREEMENT WITH THE UPPER EAGLE RIVER WATER AUTHORITY WHEREAS, the Upper Eagle River Water Authority ( "Authority ") is a quasi- municipal corporation established pursuant to an Intergovernmental Agreement 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 Berry Creek Metropolitan District, the Eagle -Vail Metropolitan District, and the Edwards Metropolitan District (collectively the "Member Districts "), and 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; and WHEREAS, pursuant to the Amended and Restated Water Lease dated effective as of January 1, 1998, between the Authority and the Town, the Town leased to the Authority certain 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 the water rights described on Exhibit A attached to the Restated Water Lease; and WHEREAS, pursuant to the Supplemental Water Lease dated July 14, 2005, the Town leased to the Authority the remaining 22.3% undivided interest in and to the subject water rights and the Supplemental Water Lease states that the entire interest in the subject water rights leased to the Authority by virtue of the Restated Water Lease and the Supplemental Water Lease are adequate to replace depletions associated with lake evaporation (42.30 acre feet), non - potable irrigation in the amount of 19.58 acre feet, and potable water service for up to 4,984 equivalent residential units single family equivalents (SFE); and WHEREAS, pursuant to the Supplemental Water Lease dated June 25, 2009, the Authority agreed to increase the number of SFE's that it will serve within the town by 255.55 to account for additional water requirements of the Confluence Project, increasing the total service from 4,984 SFE's to 5,239.55 SFE's; and WHEREAS, pursuant to the Second Supplemental Water Lease dated January 26th, 2010, the Authority agreed to increase the number of SFE's that it will serve within the town by 15 SFEs to account for additional water requirements of the Eagle River at Avon Project, increasing the total service from 5,239.55 SFEs to 5,254.55 SFE's; and WHEREAS, subsequent to the Second Supplemental Water Lease, the Authority and Wyndham Worldwide Vacation Ownership. (the "Company ") entered into that certain Water Service Agreement dated April 8, 2013, whereby the Company sought water service for property in the Town known as the Wyndham development which at full build out will consist of 58 SFE; and therefore the Authority agreed to service these 58 SFEs at the Wyndham development from Res. No. 14 -16 Approving Third Supplemental !Water Lease August 12, 2014 FINAL Page 1 of 2 35.8 SFEs under the Town's water lease agreement with UERWA and 22.2 SFE's owned by the Authority for which cash -in -lieu fees were paid provided certain contingencies were met, including the dedication of certain water rights to the Authority; and WHEREAS, the contingencies contemplated in the Water Service Agreement have been satisfied, and as a result, the Authority and the Town desire to enter into this Agreement whereby the Authority agrees to increase the number of SFEs that it will serve in the Town by 22.2, to a total of 5,276.75 SFEs; and WHEREAS, the Town and the Company entered into an Development Agreement dated February 26, 2013, under which the Company was obligated to dedicate and convey to the Authority certain water rights, and said agreement contemplated that should the Authority fail to provide water service to the Wyndham development for any reason, the water rights dedicated to the Authority shall be assigned by the Authority to the Town; and WHEREAS, it is the intent and purpose of this Third Supplemental Water Service Agreement to increase the maximum number of SFEs to which the Authority will provide water service within the Town from 5,254.55 SFEs to 5,276.75 SFEs, and insure that the dedicated water rights for the Wyndham development are assigned to the Town in the event the Authority (or any successor entity) fails to provide water service to the Wyndham development. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the THIRD SUPPLEMENTAL WATER LEASE AGREEMENT WITH THE UPPER EAGLE RIVER WATER AUTHORITY as hereto attached as Exhibit A is hereby approved by the Town of Avon. ADOPTED AND APPROVED by the Avon Town Council on August 12, 2014. BY: Rich Carroll, Mayor Res. No. 14 -16 Approving Third Supplemental water Lease August 12, 2014 FINAL Page 2 of 2 Attest: xD, 0,00� Debbie I- loppe, Town berk 1. Additional Water Service Commitment. The Authority agrees that it will serve an additional 22.2 SFEs in Avon in addition to the 5,254.55 SFEs that were specified in the Supplemental Water Service Agreements. These additional 22.2 SFEs will be available 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 total number of SFEs in Avon that the Authority agrees to serve now totals 5,276.75 SFEs. The parties' Supplemental Water Service Agreements and the January 1, 1998 Amended and Restated Water Lease and the July 14, 2005 Supplemental Water Lease remain in full force and effect as supplemented by this Agreement. 2. Customer Charges. Currently all customers within Avon pay directly to the Authority plant investment fees and treated 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. 3. 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 interpretation of 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. 58769 2 THIRD SUPPLEMENTAL WATER SERVICE AGREEMENT This Agreement dated this 28`h day of February, 2013, is between the Upper Eagle Regional Water Authority, a quasi - municipal corporation and political subdivision of the State of Colorado (the "Authority"), and the Town of Avon (the "Avon'), a municipal corporation. RECITALS A. The Authority is a quasi - municipal corporation established pursuant to an Intergovernmental Agreement dated September 18, 1984, among the Arrowhead Metropolitan District, Avon as successor to the Avon Metropolitan District, the Beaver Creek Metropolitan District, the Berry Creek Metropolitan District, the Eagle -Vail Metropolitan District, and the Edwards Metropolitan District (collectively the "Member Districts "). 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. Pursuant to the Supplemental Water Service Agreement dated June 25, 2009, between the Authority and the Town, as modified by the Second Supplemental Water Service Agreement dated September 24, 2009, between the Authority and Avon (the "Supplemental Water Service Agreements "), the Authority committed to provide water service to a total of 5,254.55 single family equivalent residential units ( "SFEs ") in Avon. C. By Water Service Agreement dated February 28, 2013, between the Authority and Wyndham Vacation Resorts, Inc. (the "Company "), the Company sought to obtain water service for an additional 22.2 SFEs not covered by the Supplemental Water Service Agreements. The additional 22.2 SFEs are located on property described as Lot 61, Block 22, Benchmark at Beaver Creek, in Avon (the "Property "). The Authority agreed to service these additional 22.2 SFEs associated with the Property up to the limits detailed in the Water Service Agreement, provided certain contingencies were met, including the payment of the required cash in lieu fee. D. The contingencies contemplated in the Water Service Agreement have been satisfied. As a result, the Authority and the Town desire to enter into this Agreement whereby the Authority agrees to increase the number of SFEs that it will serve in Avon by 22.2 SFEs, to a total of 5,276.75 SFEs. E. Avon and the Company entered into a Development Agreement for the Property dated Februaryry ervat , 2013. F. It is the intent and purpose of this Third Supplemental Water Service Agreement to increase the maximum number of SFEs to which the Authority will provide water service within Avon from 5254.55 SFEs to 5,276.75 SFEs. NOW, THEREFORE, in consideration of the premises contained herein and other good and valuable consideration, the sufficiency of which are hereby acknowledged, the Authority and the Town agree as follows: 58769 STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 26'--'- day of YESmAr, , 2013, by'T1n r. C.LFOV,1gayA� as BtLudmi 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. My commission expires 02-01. 17 CATHERINE LUNDY HAYES NOTARY PUBLIC STATE OF COLORADO 'NOTARY ID 20134006102 MY COMMISSION EXPIRES FEBRUARY 1. 2017 STATE OF COLORADO ) ss. COUNTY OF ) .truce. ,t .& ` i. The foregoing instrument was acknowledged before me this "'da Y of 2014 by j'j.' as o .rte �� of the Town of Avon 00 %q Witness my hand and official seal. My commission expires �. DEBORAH M HOPPE NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20054028125 MY COMMISSION EXPIRES JULY 18, 2017 n r �16L 'Vl l n Notary Public 58769 4 UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi - municipal corporation of the State of Colorado By: �. u.`. ,k• a z!iA Title: T ,I TO WN By: Name Title: 58769 OF AVON