Battle Mountain developers reject claims of default from Minturn

Developer is seeking to amend existing agreement

In response to accusations of default from the town of Minturn, the development group seeking to build homes in Minturn has rejected those accusations.

In a letter issued Aug. 31, a law firm representing the Battle Mountain development group said the town’s notice of default is “based on selective references to isolated provisions of the referenced Battle Mountain Agreements” and “makes conclusory assertions of default that are not well founded factually, legally or contextually.”

The notice of default, issued Aug. 26 by the town’s attorney, says the developer has not paid the town for costs to build a water treatment plant and reservoir at Bolts Lake, among other obligations.

The letter rejecting the claims of default was published on the town of Minturn’s website on Aug. 31 in a revision to the August 27 publication of the town’s agenda and packet. The letter accuses the Minturn Town Council of frustrating the good faith efforts of town staff to negotiate to amend the developer’s annexation agreement.

The letter says the most pertinent provision in the document referenced by council in the notice of default is the part of the document which says “the parties shall negotiate in good faith to amend the existing Annexation Agreement.”

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The Bolts Lake site in Minturn could accommodate 1,200-acre foot reservoir on about 45 acres, but any such project would need to be reviewed by the town of Minturn along with several state and federal agencies, according to the Eagle River Water & Sanitation District.
Courtesy illustration

Unmentioned MOU

The potential for a reservoir at Bolts Lake and Minturn’s desire to be granted an easement of the Bolts Lake reservoir area of town is one of key sticking points in the negotiations.

The developer says good faith efforts to negotiate on a plan involving Bolts Lake, another area called Mountain Concept, and an amendment of the existing annexation agreement have been underway for years. The developer says the proof of that is a memorandum of understanding from 2016 which was approved by the Town Council.

In the developer’s response to the notice of default, attorney Munsey L. Ayers points out that the notice does not mention the 2016 memorandum of understanding.

“The 2016 MOU expressly acknowledges and was predicated on the parties’ agreement that, pursuant to the 2012 Agreement, the parties ‘previously have contemplated the need to negotiate in good faith to amend the Annexation Agreement,'” Ayers said in the letter. “The 2016 MOU contemplated a multiple phase process to amend the Annexation Agreement to implement a Mountain Concept and a Bolts Lake Concept.”

The Mountain Concept portion of that process was implemented via a 2017 agreement by the Town Council, something which is also not mentioned in the notice of default, Ayers said.

“After completing the Mountaintop Agreement, the Battle Entities continued in good faith to negotiate with Town staff regarding implementation of the Bolts Lake Concept,” Ayers said. “On multiple occasions, those negotiations resulted in preliminary agreements intended to facilitate amending the existing Annexation Agreement through implementation of the Bolts Lake Concept. However, in each instance Town Council rejected the proposed agreement, frustrating what had appeared to be good faith efforts of Town staff.”

The Minturn Town Council has since “expressly terminated the Town’s participation in the 2016 MOU process,” Ayers said.

‘If and when’

No mention of the developer’s Aug. 31 response was made at the council’s Sept. 1 meeting, but the council did meet in closed session following the meeting to receive legal advice from the town attorney pursuant to the Battle Mountain negotiations.

The Town Council received a public briefing from attorney Mike Sawyer at the Sept. 1 meeting; Sawyer said the town was hoping for “cure” of the alleged obligations in two to four weeks, which would make some action required this week.

Sawyer said after being notified that the Eagle River Water & Sanitation District is under contract to buy the land for Bolts Lake Reservoir, the town identified that action as a default on their effort to receive an easement on the property.

“There is a cure period that Battle Mountain has in which to make good on matters that it has defaulted on, I believe that this falls under the two week cure period, because it is a non-monetary matter that Battle Mountain has a obligation to fulfill to the town,” Sawyer said.

The developer, in its letter rejecting the claims of default, said it is seeking to “move forward on a rational, reasonable, realistic and coherent path if and when the political will exists to ‘negotiate in good faith to amend the existing Annexation Agreement.'”

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