HomeMy WebLinkAbout20080625starwoodAGENDA ITEM SUMMARY
REGULAR MEETING DATE: June 25, 2008
AGENDA ITEM TITLE: A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY, COLORADO
AUTHORIZING PITKIN COUNTY TO ENTER INTO AN
INTERGOVERNMENTAL AGREEMENT WITH THE
STARWOOD METROPOLITAN DISTRICT FOR THE
SALE AND PURCHASE OF WATER RIGHTS
STAFF RESPONSIBLE: John Ely, County Attorney
SUMMARY OF ISSUE: Second reading and public hearing of a resolution authorizing the
Board to enter into an Intergovernmental Agreement ("IGA") with Starwood Metropolitan
District for the sale and purchase of water rights.
BACKGROUND: Pitkin County (the "County") owns 8 cubic feet per second
absolute of the Stapleton Brothers Water Ditch, decreed on October 16, 1933 in Civil Action No.
3000, Pitkin County District Court, State of Colorado.
The County obtained a decree dated January 31, 2005 for change of water right, approval of plan
for augmentation and appropriative right of exchange regarding this water right. This change
included confirmation of 220 acre-feet per year of consumptive use water credits.
The County will retain 18 acre-feet per year of consumptive water credits to in•igate landscaped
acreages on the Aspen-Pitkin County Airport property. The County may retain, sell or lease the
remaining 202 acre-feet per year credits.
The County desires to sell and Starwood Metropolitan District desires to purchase 65.00 feet of
the Stapleton Brothers Ditch Credits. Purchase price per foot shall be $10,000.00 keeping
consistent with the present day market for a total of $650,000.00
The Board had expressed concerns with previous versions of the IGA concerning the length of
time for the closing date and a contingency based on Stanwood Metropolitan District's water
court application. Both of those concerns have now been addressed and incorporated into the
IGA. The closing date shall be no later than 180 days after mutual execution of the IGA and
shall take place independent of Stanwood Metropolitan District's water court application.
RECOMMENDED BOCC ACTION: Motion to approve at second reading and
public hearing, a Resolution of the Board of County Commissioners of Pitkin County,
Colorado authorizing Pitkin County to enter into an Intergovernmental Agreement with
the Starwood Metropolitan District for the Sale of Water Rights
ATTACHMENTS: Proposed Resolution and Intergovernmental Agreement
d
A RESOLUTION OF THE BOARD OF COUNTY COMMISSI
OF PITKIN COUNTY, COLORADO AUTHORIZING
PITKIN COUNTY TO ENTER INTO AN
INTERGOVERNMENTAL AGREEMENT WITH THE
STARWOOD METROPOLITAN DISTRICT FOR THE SALE OF WATER RIGHTS
RESOLUTION - 2008
Recitals
1. Pitkin County is the owner of 8 cubic feet per second absolute of the Stapleton
Brothers Water Ditch, decreed on October 16, 1933 in Civil Action No. 3000, Pitkin County
District Court, State of Colorado.
2. Pitkin County obtained a decree dated January 31, 2005 for change of water right,
approval of plan for augmentation and appropriative right of exchange regarding this water right.
This change included confirmation of 220 acre-feet per year of consumptive use water credits.
3. An estimated 18 acre-feet per year of consumptive water credits will be used by
Pitkin County to irrigate landscaped acreages on the Aspen-Pitkin County Airport property.
Pitkin County may retain, sell or lease the remaining 202 acre-feet per year credits.
4. Pitkin County desires to sell and Starwood Metropolitan District desires to
purchase 65.00 feet of the Stapleton Brothers Ditch Credits.
5. Purchase price per foot shall be $10,000.00 keeping consistent with the present
day market for a total of $650,000.00
6. The date of closing shall be no later than 180 days after mutual execution of the
Intergovernmental Agreement attached hereto as Exhibit A, and shall take place independent of
Starwood Metropolitan District's water court application.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY, COLORADO, that the Board of County
Commissioners of Pitkin County and the Starwood Metropolitan District enter into an
Intergovernmental Agreement for the purchase and sale of water rights, and authorizes the Chair
to execute the Intergovernmental Agreement on behalf of Pitkin County, after approval of such
agreement by the County Attorney.
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 28th
DAY OF MAY, 2008.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES
WEEKLY ON 1sT DAY OF JUNE, 2008.
APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 25Tx
DAY OF JUNE, 2008.
PUBLISHED AFTER ADOPTION By THE ASPEN TIMES WEEKLY ON THE _
DAY OF , 2008.
ATTEST:
Jeanette Jones
Deputy Clerk
BOARD OF COUNTY COMMISSIO]
OF PITKIN COUNTY, COLORADO
Jack Hatfield, Chairman
Date:
APPROVED AS TO FORM: MANAGER APPROVAL:
John M. Ely
County Attorney
I/resos/starwood metro.res
Hilary Fletcher
County Manager
y
INTERGOVERNMENTAL AGREEMENT POR THE PURCHASE
AND SALE OF WATER RIGHTS
This Intezgovemmental Agreement (hereinafter referred to as "IGA") is entered into
between the County Commissioners of Pitldn County, whose address is in care of John Ely,
Esq., Pitldn County Attorney's Office; 530 E. Main Street, Aspen, Colorado 81611 ("Sellef') and
the Boazd of Directors for the Starwood Metropolitan District 121 Stewart Drive, Aspen,
Colorado 81611 ('Buyer"), effective this _ day of .2008.
RECTTALS
WHEREAS, Seller is the owner of the following described water right 8 cubic feet per
second absolute of the Stapleton Brothers' Ditch, decreed on October 16, 1933 in Civil Action
No. 3000, Pitkin County District Court State of Colorado, with an appropriation date of June 30,
1904; and
WHEREAS, Seller obtained a decree dated January 31, 2005 for change of water right,
approval of plan for augmentation and appropriative right of exchange regazding this water
right from the District Court, Water Division No. 5, Case No. 99CW306; and
WHEREAS, the change of Stapleton Brothers' Ditch water right in Case No. 99CW306
included confirmation of 220 a¢e-feet per yeaz of consumptive use water credits ("Stapleton
Brothers' Ditch Credits"); and
WHEREAS, of the 220 acre-feet per yeaz of Stapleton Brothers' Ditch Credits, an
estimated 18 acre-feet per yeaz will be used by the Seller to irrigate landscaped acreage on the
Aspen-Pitkin County Airport property; and
WtIEREAS, pursuant to the application for change of water right approval of plan for
augmentation and appropriative right of exchange in Case No. 99CW306, the *m++a+*++++g 202
acre-feet per yeaz of Stapleton Brothers' Ditch Credits may be retained by Pitkin County, or sold
or leased to other water users; and
WHEREAS, Buyer is a Metropolitan District organized under the laws of the State of
Colorado to among other things, provide water service to the Stanwood Subdivision;
WHEREAS, Buyer intends to incorporate the Stapleton Brothers' Ditch Credits in a
supplemental augmentation plan to be fried with the Division 5 Water Court;
WHEREAS, Seller desires to sell and Buyer desires to purchase Stapleton Brothers' Ditch
Credits as follows:
Now, therefore, in consideration of the mutual promises set forth in this IGA, the parties
agree as follows:
~sk,~~t R
IGA FOR PURCHASE AND SALE: Stapleton Brothers' Ditch
Page 2 of B
1. Aereement to Buy and Sell Water Rights. Seger agrees ro sell and Buyer agrees ro
buy 65.00 acre feet of the Stapleton Brothers' Ditch Credits des¢tbed above, as
calculated as an overall percentage of the 220 a¢e-feet per yeaz of mnsumptive use
credits. These 65 acre-feet of Stapleton Brothers' Ditch Credits shall be delivered pro-
rata out of the monthly distribution set forth in the de¢ee in Case No. 99CW306 to the
extent physically and legally available, and shall not include any Grizzly Reservoir
storage water available to the County.
2. Price and Payment.
a. Purchase Price: Buyer agrees to pay Seller the purchase price of Ten Thousand
Dollazs ($10,000.00) per a¢e foot of adjudicated historic consumptive use for a total
purchase price of Six Hundred Fifty Thousand Dollars ($650,000), by wire transfer to
a bank account designated by Seller.
b. Es¢ow: Upon full execution of this IGA, Buyer shall deposit Sixty-Five
Thousand Dollars ($65,000) into aninterest-bearing es¢ow account for the benefit of
Seller. In the event that Buyer temtinates this IGA pursuant to Sub-patagraph c,
below, Seller will refund the Sixty-Five Thousand Dollars ($65,000) plus any interest
accrued, to the Buyer within 10 days of the written notice of termination. In the
.event Buyer terminates the IGA for any other reason, Buyer's earnest money shall
not be refunded ro Buyer. If Seller terminates the IGA, Buyer shall receive the
interest payment
c. Review of Information. Buyer, through any employees, agents or other
designees of Buyer that it may designate, shall have the right to review and inspect
any information relating to the Stapleton Brothers' Ditch Credits or the subject
matter of this IGA that Buyer may obtain either before or after the effective date of
this IGA. If Buyer determines, in its sole and subjective dis¢etion, that the title to or
status of the Seller's interest in and ro the Stapleton Brothers' Ditch Credits is not
satisfactory to Buyer or that there is insufficient evidence to establish the historic use
of the water ro Buyer's satisfaction, Buyer shall provide written notice of its
determination ("Notice of Unsatisfactory Conditions") to Seller within 90 days of the
date of this IGA.
d.' Payment of Balance of Purchase Price: At least five (5) days prior to closing
Seller shall provide Buyer with the name and address of its bank, the name under
which the bank account is held, the bank account number, the wire transfer routing
number, and any other information required ro complete the wire transfer. Buyer
shall arrange for the balanre of the purchase price, Five Hundred Eighty Five
Thousand Dollars ($585,000), at closing as further described in Pazagraph 7, below.
3. Warranties. Seller hereby warrants and represents to Buyer, and such warranties
shall be applicable and in full force in effect as of the date of closing of this IGA, that:
W
IGA FOR PURCHASE AND SALE: Stapleton Brothew' Ditch
Page 3 of 6
a. Seller owns good and marketable tine ro the Stapleton Brothers' Ditch Credits
desmbed in the Recitals above, free and clear of al( liens, encumbrances and
adverse claims to the use and enjoyment thereof.
b. Seller has taken all actions and received all authorizations necessary to make this
IGA a valid obligation binding upon it.
c The Stapleton Brothers' Ditch Credits have been quantified by the Water Court
in the manner required by law, there has been. no intent to abandon or other
action taken to abandon in whole or in part and the Stapleton Brothers' Ditch
Credits are not currently the subject of an abandonment proceeding.
d. Seller makes no warranties or representations about the suitability of the
Stapleton Brothers Ditch Credits for Buyer's use or purposes.
4. Tra_sfer of u'storic CorLSnptive Use Cre~lsts Associated with the Stapleton
Brothers' Ditch Credits. Seller shall transfer the historic consumptive use credits
decreed th the Stapleton Brothers' Ditch Credits to Buyer by a special warranty deed
insuring that grantor did not wnvey or adversely affect title during its ownership
tenure.
5. Drv-uv Covenant As a result of this sale and the changes contemplated herein,
Seller agrees to execute aDry-up Covenant
6. Water Court Approval. It will be necessary for Buyer to obtain Water Court
approval to utilize the Stapleton Brothers Ditch Credits as a source of replacement
water in the plan for augmentation. Seller agrees to cooperate with Buyer and assist
Buyer as needed providing information necessary to quantify historic consumptive use
or any other information necessary to obtain a decree in this matter. The parties shall be
responsible for their individual costs and attorney fees associated therewith.
7. ~ .The date of closing shall be 180 days following mutual execution of this
IGA. At closing, the following actions shall occur:
a. Buyer shall wire to Seller the balance of the purchase price in the amount of Pive
Hundred Eighty Five Thousand Dollars ($585,000).
b. Seller shall deliver to Buyer a duly executed and acknowledged special warranty
deed as described above.
c Seller shall deliver the Dry-up Covenant described above.
d. The parties shall execute, acknowledge and deliver any and all other documents
necessary to carry out the intent and purposes of this IGA and to comply with
applicable law.
1GA FOR PURCHASE AND SALE: Stapleton Brothers' Ditch
Page 4 of 8
8. Time of Essence: Remedies. Time is of the essence. If any payment due hereunder is
not paid, honored or tendered when due, or if any other obligation hereunder is not
performed or waived as herein provided, there shall be the following remedies:
a. If Buyer is in default Seller may eleM to terminate this IGA, or Seller may elect
to treat this IGA as being in full force and effeM and Seller shall have the right to
specific performance or damages, or both.
b. If Seller is in default Buyer may elect to terminate this IGA, or Buyer may elect
to treat this IGA as being in full form and effeM and Buyer shall have the right to
specific performance or damages, or both.
c. Anything to the contrary herein notwithstanding. in the event of any litigation
arising out of this IGA, the court shall award to the prevailing party all
reasonable costs and expenses, including attorney fees.
9. Miscellaneous Provisions.
a. All provisions hereof shall apply to and be binding upon the parties hereto, their
agents, successors and assigns.
b. All notices or other communications required or permitted under this IGA shall
be in writing, and shall be personally delivered or sent by facsimile
telecommunication, by overnight air express service or by certified mail, postage
prepaic(, return receipt requested, addressed to the parties at their respective
addresses set forth below, which, for purposes of this IGA„ are the law offices of
the parties' respective attorneys. Such notice or other communication shall be
deemed given (i) upon receipt if personally delivered (ii) upon sending if
delivered by facsimile telecommunication, (iii) one business day after tendering
to a reputable overnight air express service, and (iv) three business days after
mailing if by certified mail. Notice of change of address shall be given by
written notice in the manner detailed above.
0
To Seller:
Boazd of County Commissioners of
fftlan County
Attn: John ~13)F ~q:-- -- - ---- --
Pitlan Covnty Attorney
530 E. Main Street, Suite I
Aspen, CO 81611-2939
(970)920-5190
With copies to:
Timothy Beaton, Esq.
Moses, Wittemyer, Hazrison &
Woodruff P.C.
P.O. Box 1440
Boulder, CO 80301
(303) 443-8782
To Buyer:
Starwood Metropolitan District
Executive Duector of the Boazd of
Directors
121 Stewart Drive
Aspen, Colorado 81611
(970) 925-6939
Wfth copies to:
Paul J. Taddune, Esq.
Law Office of Paul J. Taddune
323 W. Main Street, Ste 301
Aspen, CO Bibll
(970) 925-9199
Balcomb & Green, P.C.
PO Drawer 790
Glenwood Springs, CO 81602
(970) 945-6546
---- Camnent [dhyl.~Aitr.... 7° ..
c. All promises, wazranties, covenants and representations contained in this IGA
shall survive the closing.
d. This IGA shall be governed under, and construed pursuant to, the laws of the
State of Colorado.
e. This IGA shall be modified by writing only, which writing must be executed by
the parties hereto in order to be effective.
f. Neither party has had any contact or dealings regazding the Stapleton Brothers'
Ditch Credits, or any communication in connection with the subject matter of
this transaction, through any licensed real estate broker, entity, agent'
commission salesperson, or other person who will claim a right to compensation
or a commission or finder's fee as a procuring cause of the sale contemplated
herein. The pazties agree that no commissions aze due and owing as a result of
this transaMion.
g. This IGA may be executed in counterparts, all of which taken together shall be
considered one instrument
h. This IGA may be executed by facsimile, any of which, shall be deemed an
original signature and bind the executing party.
i. This IGA shall be effective on the last date it is signed by the pazties.
j. Confidentiality. Buyer recognizes and agrees that part of the consideration for
the purchase by Buyer of the sale water rights is the maintenance of the
confidentiality of the terms and purchase price paid by Buyer. Buyer shall not
disclose to others any temu or condition of this Agreement except as required in
the performance of its fiduciary duties or in the course of litigation or otherwise
as required by law, or except as expressly permitted by Seller. Seller shall be
permitted to disclose the purchase price and terms and conditions of this
Agreement in its discretion for purposes or facilitating other sales of Seller's
water right interests.
[NHEREPORE, the parties have executed this IGA effective as of the date set forth above.
BOARD OF COUNTY COMMISSIONERS OF PTIICR~1 STARWOOD METROPOLTTAN DLSTRTCT
COUNTY
Its:
ATTEST:
Its:
ATTEST.
STARWOOD METAOFOLITAN DISTRICT
/~
IGA FOR PURCHASE AND SALE: Stapleton Brothers' Ditch
Page 7 of 8
Its: Secretary
sy:
Its: Secretary
//
IGA FOR PURCHASE ANQ SALE: Stapleton Brothers' Diteh
Page 8 of 6
Approved as fo form:
PrrtaN COUNTY BALCOMB & GizEC~l, P.C.
By: John BIy
Its: Attorney
Scott M. Balmmb
Sara M. Dunn
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