HomeMy WebLinkAboutagenda.council.regular.20080908CITY COUNCIL AGENDA
September 8, 2008
5:00 P.M.
Call to Order
Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT
on the agenda. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters maybe adopted together by a single motion)
a) Minutes -August 25, 2008
b) Resolution #86, 2008 -Radon Remediation Contract
VII. First Reading of Ordinances
a) Ordinance #29, 2008 -Water Service Agreement -Three Trees LLC
VIII. Public Hearings
a) Ordinance #24, 2008 - 508 East Cooper Subdivision (continue to 9/22)
b) Ordinance #23, 2008 -Bonds Castle Creek Hydropower Project
IX. Action Items
X. Executive Session
XI. Adjournment
Next Regular Meeting September 22, 2008
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
Vlb
MEMORANDUM
TO:
THRU:
FROM
DATE OF MEMO:
MEETING DATE:
RE:
Mayor and Council
Lee Cassin, Director of Environmental Health
Jannette Whitcomb, Environmental Health Program Coordinator
September 2, 2008
September 8, 2008
Contract for Radon Remediation -City owned buildings
?sec
REQUEST OF COUNCIL: The Environmental Health Department is requesting Council
approve a contract for radon remediation of six city owned buildings. The contract is to Stanton
Engineering Solutions, Inc. The total amount of the contract is not to exceed $40,174. An
Invitation to Bid was not issued for this project given the difficulty of finding a radon contractor
during our previous Invitation to Bid. During the previous bid process, staff contacted several
licensed radon specialists and only one contractor was willing to do the work, given the
challenges of historic buildings, permitting, and other issues. That company was Stanton
Engineering Solutions, Inc.
The Environmental Health Department is recommending City Council approve the contract to
Stanton Engineering Solutions, Inc for the amount of $40,174.
PREVIOUS COUNCIL ACTION: Council has taken no previous action, however staff has
worked with this company in the recent past for other city owned buildings.
BACKGROUND: Environmental Health randomly tested the basement of City Hall for radon in
the spring of 2007 as part of a community radon awareness effort. The test came back with high
levels; from there we hired a radon remediation company (Stanton Engineering Solutions, Inc.)
to reduce the levels of radon below the EPA action level of 4 pico Curies per liter of air. After
the contractor completed the work staff tested the basement and levels dropped to 3.6 pico Curies
per liter of air.
Since the spring of 2007 staff has tested all city-owned buildings and have currently completed
five radon remediation projects.
DISCUSSION: Radon is the number one cause of lung cancer among non-smokers, the second
leading cause of lung cancer overall. About 20,000 people in the US are believed to die from
exposure to radon each year. (To put that number in perspective, the EPA also estimates
that up to 60, 000 additional deaths occur in the US each year from exposure to PM-10. The
EPA estimates that about 3, 000 non-smokers in the US die from lung cancer from exposure to
secondhand smoke.) While people do not spend as much time in these city buildings as they do in
their home, the City wants to be very protective and bring these radon levels down to below the
EPA's action level. The EPA's action level for radon remediation is four (4) pico Curies per liter
of air. EPA recommends considering remediation at levels of between two and four.
The following are the radon levels for the buildings that aze included in this contract.
Ci Buildin Radon Level
Red Brick G m 11.9
Red Brick
Buildin 23.4
East Water Plant 5.1
Rio Grande
Buildin 10
Ice Gazden skate
sho 4.6
Golf Club House 6.9
How radon remediation is done: Since radon enters the space from soil beneath the slab and from
dirt in the surrounding "crawl spaces", the radon-laden air must be pulled from those azeas before
it enters the basement rooms. This is done by coring under the slab and installing fans that pull
the air out from beneath the slab, and venting it directly to the outside. Other fans pull air from
the crawl spaces, after the ground is sealed off, and vent it outside. The radon-containing air is
vented typically a few feet above the roof of the building (away from windows or areas where
people would breathe it). Vent fans run full-time.
FINANCIAL IMPLICATIONS: This project is funded by three separate funds: Pazks, Water
and Environmental Health's AMP. All three departments currently have 2008 budget authority
for these projects. Environmental Health's contribution comes from their 2008 AMP budget and
will cover the costs of the following projects: Red Brick Gym and Building, Ice Gazden and the
Rio Grande Building. As way of reference, given the high priority of radon remediation, the
Environmental Health Department sought approval from the City Manager to defer the
Environmental Health Department's AMP expenses, and to use that money to fund a portion of
the radon remediation.
2
The following is a breakdown of the costs covered in the contract:
Project Estimate Adjustment to
allow for
possible night
work Total
Red Brick G $4128 $4128
Red Brick
Buildin $15,216 $1000 $16,216
East Water Plant $4264 $1000 $5264
Rio Grande
Buildin $6452 $1000 $7452
Ice Garden $1916 $1916
Golf Club House $4198 $1000 $5198
Sub-Total $36 174 $4000
Pro"ect Total $40 174
The cost to maintain these systems is based on the energy they use which is very small compared
to energy cost currently spent on the heating and cooling of these buildings. Minor ongoing costs
will be required to occasionally replace fans.
ENVIRONMENTAL IMPLICATIONS: This system will increase energy use in the seven
city buildings due to operafion of the fans, but by a very small amount. The work will solve an
important environmental health issue caused by high radon levels in spaces employees and the
public occupy.
RECOMMENDATION: Staff recommends award of the radon remediation contract to Stanton
Engineering Solutions, Inc. for the amount of $40,174.
ALTERNATIVES: Council could not approve the contract for radon remediation. The main
concern with not moving forward with this project is continued exposure to staff and the public
to high levels of radon.
PROPOSED MOTION: "I move to approve resolution # ~~
CITY MANAGER COMMENTS:
RESOLUTION # C~v
(Series of 2008)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO AND STANTON ENGINEERING SERVICES, INC.
SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE
RADON REMEDIATION OF SIX CITY OWNED BUILDINGS AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract between the
City of Aspen, Colorado, and Stanton Engineering Services, Inc., a copy of which
contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado and Stanton Engineering Services, Inc.
regarding radon remediation, a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager of the City of Aspen to
execute said contract on behalf of the City of Aspen.
Dated:
Michael C. Ireland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held*
Kathryn S. Koch, City Clerk
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and Stanton Engineering Solutions, Inc, ("Professional").
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Scope of Work. Professional shall perform in a competent and professional manner
the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated
herein.
2. Completion. Professional shall commence work immediately upon receipt of a
written Notice to Proceed from the City and complete all phases of the Scope of Work as
expeditious]y as is consistent with professional skill and Gaze and the orderly progress of the Work
in a timely manner. The parties anticipate that all work pursuant to this agreement shall be
completed no later than November 10, 2008. Upon request of the City, Professional shall submit,
for the City's approval, a schedule for the performance of Professional's services which shall be
adjusted as required as the project proceeds, and which shall include allowances for periods of time
required by the City's project engineer for review and approval of submissions and for approvals of
authorities having jurisdiction over the project. This schedule, when approved by the City, shall not,
except for reasonable cause, be exceeded by the Professional.
3. P. a_ nom. In consideration of the work performed, City shall pay Professional on a
time and expense basis for all work performed. The hourly rates for work performed by
Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as
otherwise mutually agreed to by the parties the payments made to Professional shall not initially
exceed $40,174 plus the cost of a specialty permit, mechanical permit and business license.
Professional shall submit, in timely fashion, invoices for work performed. The City shall review
such invoices and, if they are considered incorrect or untimely, the City shall review the matter with
Professional within ten days from receipt of the Professional's bill.
4. Non-Assignability. Both parties recognize that this contract is one for personal
services and cannot be transferred, assigned, or sublet by either party without prior written consent
of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the
responsibilities or obligations under this agreement. Professional shall be and remain solely
responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers,
agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee
of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be
liable for payment of any sums due which may be due to any sub-contractor.
5. Termination. The Professional or the City may terminate this Agreement, without
specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying
PS1-971.doc Page 1
the effective date of the termination. No fees shall be earned after the effective date of the
termination. Upon any termination, all finished or unfinished documents, data, studies, surveys,
drawings, maps, models, photographs, reports or other material prepazed by the Professional
pursuant to this Agreement shall become the property of the City. Notwithstanding the above,
Professional shall not be relieved of any liability to the City for damages sustained by the City by
virtue of any breach of this Agreement by the Professional, and the City may withhold any
payments to the Professional for the purposes of set-off until such time as the exact amount of
damages due the City from the Professional may be determined.
6. Covenant Against Contingent Fees. The Professional warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or
any other consideration contingent upon or resulting from the awazd or making of this contract.
7. Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall result in, or be construed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No
agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent
or servant of the City. City is interested only in the results obtained under this contract. The
manner and means of conducting the work aze under the sole control of Professional. None of the
benefits provided by City to its employees including, but not limited to, workers' compensation
insurance and unemployment insurance, are available from City to the employees, agents or
servants of Professional. Professional shall be solely and entirely responsible for its acts and for the
acts of Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and
shall assume full responsibility for payment of all federal, state and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax law, with
respect to Professional and/or Professional's employees engaged in the performance of the services
agreed to herein.
8. Indemnification. Professional agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and
demands, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of
any kind whatsoever, which arise out of or are in any manner connected with this contract, if such
injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in
part by, the act, omission, error, professional error, mistake, negligence, or other fault of the
Professional, any subcontractor of the Professional, or any officer, employee, representative, or
agent of the Professional or of any subcontractor of the Professional, or which arises out of any
workmen's compensation claim of any employee of the Professional or of any employee of any
subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to
provide defense for and defend against, any such liability, claims or demands at the sole expense of
PS1-971.doc Page 2
the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the
defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is
determined by the final judgment of a court of competent jurisdiction that such injury, loss, or
damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or
its employees, the City shall reimburse the Professional for the portion of the judgment attributable
to such act, omission, or other fault of the City, its officers, or employees.
9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own
expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands,
and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance
shall be in addition to any other insurance requirements imposed by this contract or by law. The
Professional shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of
its failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City. All
coverages shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-
made policy, the necessary retroactive dates and extended reporting periods shall be procured to
maintain such continuous coverage.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of FIVE IIiJNDRED THOUSAND
DOLLARS ($500,000.00) for each accident, FIVE IIiJNDRED THOUSAND DOLLARS
($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted
for the Workers' Compensation requirements of this pazagraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and
operations. The policy shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for contractual and
employee acts), blanket contractual, independent contractors, products, and completed
operations. The policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,00-
0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles
assigned to or used in performance of the Scope of Work. The policy shall contain a
PSI-971.doc Page 3
severability of interests provision. If the Professional has no owned automobiles, the
requirements of this Section shall be met by each employee of the Professional providing
services to the City under this contract.
(iv) Professional Liability insurance with the minimum limits of ONE
MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS
($1,000,000) aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carved by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Professional. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Professional shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages, condi-
tions, and minimum limits aze in full force and effect, and shall be reviewed and approved by the
City prior to commencement of the contract. No other form of certificate shall be used. The certifi-
cate shall identify this contract and shall provide that the coverages afforded under the policies shall
not be canceled, terminated or materially changed until at least thirty (30) days prior written notice
has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of contract
upon which City may immediately terminate this contract, or at its discretion City may procure or
renew any such policy or any extended reporting period thereto and may pay any and all premiums
in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon
demand, or City may offset the cost of the premiums against monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00
per person and $600,000 per occurrence) or any other rights, immunities, and protections provided
by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to
time amended, or otherwise available to City, its officers, or its employees.
10. City's Insurance. The parties hereto understand that the City is a member of the
Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and are available to Professional for inspection during normal business hours.
PS1-971.doc Page 4
City makes no representations whatsoever with respect to specific coverages offered by CIRSA.
City shall provide Professional reasonable notice of any changes in its membership or participation
in CIRSA.
11. Completeness of Agreement. It is expressly agreed that this agreement contains the
entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or
written representations, agreements, warranties or promises pertaining to the project matter thereof
not expressly incorporated in this writing.
12. Notice. Any written notices as called for herein may be hand delivered to the
respective persons and/or addresses listed below or mailed by certified mail return receipt
requested, to:
City: Professional:
City Manager Eric Goard
City of Aspen Stanton Engineering Solutions, Inc.
130 South Galena Street 1302 Crazy Horse Circle
Aspen, Colorado 81611 Edwards, CO 81632
13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or
religion shall be made in the employment of persons to perform services under this contract.
Professional agzees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of this Agreement can be waived except by the written consent of the City, and
forbeazance or indulgence by the City in any regazd whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Professional to which the same may apply and,
until complete performance by Professional of said term, covenant or condition, the City shall be
entitled to invoke any remedy available to it under this Agreement or by law despite any such
forbearance or indulgence.
15. Execution of Agreement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith-
standing anything to the contrary contained herein, this agreement shall not be binding upon the
City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his
absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the
Mayor (or a duly authorized official in his absence) to execute the same.
16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101.
PS1-971.doc Page 5
a. Pur~~_o_se. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by H$ 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
b. Definitions. The following terms aze defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public Law
156, 108th Congress, as amended, that is administered by the United States Department
of Homeland Security.
"Public Contract for Services" means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
are merely incidental to the required performance.
c. By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who are
newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not employ illegal aliens.
d. Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails to
confirm to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
PS 1-971.doc Page 6
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months thereafter, until
Professional is accepted or the public contract for services has been completed,
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien, Professional shall:
(1) Notify such subcontractor and the City of Aspen within
three days that Professional has actual knowledge that the subcontractor
has newly employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within
three days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
PS1-971.doc Page 7
damages to the City of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal law,
(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
17. General Terms.
(a) It is agreed that neither this agreement nor any of its terms, provisions,
conditions, representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b) If any of the provisions of this agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution
hereof and that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as
from time to time in effect.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on
the date hereinafter written.
[SIGNATURES ON FOLLOWING PAGE]
PS1-971.doc Page 8
ATTESTED BY: CITY OF ASPEN, COLORADO:
By:
WI'~NESSED BY:
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Date: September O2, 2008
PS1-971.doc Page 9
EXHIBIT "A" to Professional Services Agreement
Scope of Work
The followin¢ pertains to all the projects
Proposal: Stanton Engineering Solutions, Inc. "SES" will warranty* the radon levels to be 3.9
pCi/1 or 0.04 WL or less for the life of the building. SES will provide the labor and materials
necessary to install a radon mitigation system. As necessary, crawl spaces will be sealed with
cross-laminated polyethylene sheeting and glued to the foundation with construction adhesive.
Where possible the perimeter will be sealed with polyurethane. SES uses only the highest quality
fans and materials including schedule 40 PVC pipe. SES paints the exterior portion of the system
to match the building. SES provides a radon test kit with each system. SES provides the
instructions to run the test, but we do not do the testing. After you run the test and send it to the
independent NEHA testing company, the results will be sent directly to you. This avoids any
conflict of interest. Checking the system and retesting are the responsibility of the homeowner.
Warranty*: This warranty is valid after full payment is received. If you run two short-term tests
or one long term test that exceed 3.9 pCi/1, SES will perform the labor and materials to fix the
system for the life of building. This warranty is attached to the property and transfers to any new
property owners. The fan is covered under the manufacturer's warranty. SES's liability is limited
to the amount paid to SES. Please see our Limited Lifetime Warranty Policy for more details.
Installation of these systems shall at a minimum conform to EPA 402-R-93-078 Radon
Mitigation Standards, dated October 1993. Professional shall apply and receive all required local
permits for installation of this system, including but not limited to city business license, specialty
permit, and NEHA certification.
Contractor shall abide by city noise law requirements and shall construction a sound suppression
barrier to reduce sound levels from coring operations.
Location Specific Details
Ice Garden, Red Brick Gym & Golf Club House: These jobs will take one day each. Work
will be done during the work week and during the. day between the hours of 9 am and 5 pm, with
setup allowed beginning at 7 am. There will be some noise associated with this job (mostly
during coring), but contractor will work azound scheduled meetings that cannot be changed. The
loudest noise during the coring is expected w take less than three hours.
PS1-971.doc Page 10
Stanton Engineering Solutions, Inc.
Your Radon Solution!
1302 Crazy Horse Cir.
Edwards, CO 81632
E-mail
slantonmgr¢?r~ahoo.com
Phone # Fax #
866-471-0707 (970)569-3818
NEHA NRPP ID's
103613RT, 103680RMT
103701RIvIT
Proposal for Radon Abatement
Date Proposal#
422008 2456
Contact Information gtldress of Mitigation
Lee Cas's'in
Customer Phone Lce Cassin
City OLAspen
Ice Garden
Rn Level
4'6 Customer E-mail
leec^a ci.asprn.cous
Terms and Conditions Cast Total
Radon mitigation with limited ISetime warmng' . 1,916.00 1,916.(q
Core slab in office behind rental azea mwazds front of building and fan will hz located in roof [o avoid visibiliM.
Perimeter seal as possible_
ProposaP. Stanton Engureering Solutions inc. "SES" will warranq'' the radon levels to be 3.9 pCid or 0.04 WL
or less for the life of the building. SES will provide the labor mrd materials necessazy to install a radon
mitigation system. As necessary, crawl spoces will be scaled wills cross-laminated polyethylene sheeting and
glued ro the foundation with construction adlresire. Where possible the perimeter will be sealed with
poltmethene. SES uses only the highest quality Cans and materials including schedule 40 PVC pipe. SES
paints the exterior portion of the sysem m match the building.
SES provides a radon lest k;t with each sstam. SES provides the inswctions to nm the test, but we do not do
the testing. After you run tike test and send it to the indeprndrnt NEHA testing company, the results will be
sent direUly to you This avoids any coMict of interest. Checking the system and retesting are the
respnnsibilil}' of the homeowner.
Payment is rcquirrA [he day the redon mitigation system is instilled. Alternative payment plans may be
made in advance. If payment is not receved [he dvy the system is installed the price shall increase by S9a
dollars. In addition [here may be a 2 % monthly interest charge and mllectian fees.
W armory"_ "Ills warzanty is valid a0er Cull paymrnt is received- I (you nut two slwn-term tells or one long
term test that exceed 3.9 pCiQ SF.S will perform [he labor and materials to Lax the system Cor fhe life oC
building. Iris warzanty is anached m the property and transfers [o ant new propem owmas. The fan is covered
under the manufacturer's warzanty. SES's liabilih is limited to the amount paid to SES. Please see om Limited
Lifetime Warmnh Policy for more derails. This proposal is valid Cnr 90 days
W e look Coiward to hearing Gom yon. If you would Glee to contract with SES or have queslions please wvlacl
us
TOtal s1,91aoo
Eric Goard
To contratY w'i[h SES sign and return:
PS1-971.doc Pagell
~~~
Stanton Engineering Solutiwls, Inc.
Y our Rad® Solution!
1302 Crary Horse Cir.
Edwatd5, CO 81632
E-mail
sterdartenQdyehoo cme
Phone # Fax #
86G 471-4707 (970)369-3858
NEHA NR1aP ID's
103613RT, 103680RMT
] 0370 l RMi
Proposal for Radon Abatement
Date Proposal#
7A 12008 2503
Contact ln(orrnafion Address of Mitig anon
Lee Cassm
Aspen City
Customer Phone Lee Cassn
(970)920-5075 GYM Red Brick Building
Rn. Level (pCi~L) Aspm CO 81611
Customer E-mail
Lee C azsir~ci.espenco.vs
Terms and Conditions Cosi Total
Radonmi4 getian widtlimitedtifetrme warmrdy'. Coxe sl ab inmeris res[room ami take pdpe bwards bnckleft 4,,128.00 4,128 U0
comer d binding and inrtell fm these and up shwa roafline.
Proposal: Station Engineering Solufiorq Inc.'SES" will wmmty' th radon levels to be 3.9 pCid or 0.04 WL
ar lessfar th life of the building. SES will provide the lobar and materiels necesseryto install aradon
mitigation system. As necessay, crawl spaces will be sealed with crosslemivnted polyettylene freefixtg and
~uedto the fourdetion with constnsctran edaesive. Where passilsle the perimeter will be sealed with
poly~sethme. SES uses only fhe highest qualib~. fens endm&.era elsimlu[li+~g scherbile 40 PPC pipe. SES
paims the exterior portion of qae system W m ffich the building
SES provides nradantest kit with each system. SES provides the irW.nscliorss to nut the LeY. but we do not de
the testing Afla yw nn the tea and sendit to the independent NEHA testing comparry, the resits wdl be
sent direcdp to you This avoi ds erq conflict of irderest Checking the system std retesting aethe
respansib0ity of the homeowner.
Paymen[arzgairzd the day the radon mitigaton rysfemshtsiaaed. Aheatufivepayment plans may be
made hr advance. Ifpayment is not rzseved the day the system is uutalled the p rte dull iurzaseby $90
dollus. Inaddtlin iherz may be a 24b monthly intexvst cbaage and collection Ees.
WaaarLy*: This warerdy is valid after fit payment is received. Ifyou nor two shod-tam tests or me long
kna tart thnt ex teed 3.9 ICiL, SES will perf¢m the ]oboe and materials to flz the ryriem for the life of
building.Ttuswmardyis adechedto the la operty mdtrmd'asb mynew gopaty owners. Thefmis covered
trader the marasfacturei swmranty.5E5'slinbilityis limited to the amount paid to SES. Please see our Limited
Lifetime Warrardy Poficy for m are detail s. This goposal is valid for 90 days.
We look forward to h"^ g from you. If you would like to mrtlrnctwith SES m have gsesROns please mrtnc[
us.
Total 3a,2g.oo
Eric Gerard To cmttrac[ tvida SES sig{t and rdurn:
PS1-971.doe Page 12
Stanton Engineering Solutions, Inc.
Your Radon Solution!
1302 Crazy Horse Cir.
Edwards, CO 81632
E-mail
slantonmg/ay shoo. coin
Phone # Fax #
866-471-0707 (970)SG9-3858
NEHA NRPP ID's
]03613RT, 103680RMT
103701RMT
Proposal for Radon Abatement
Date Proposal#
422008 24>4
Contact Information Address of Mdigation
Lee Cass'in
Lec Cassin
Customer Phone City OfASpm.
Crolf Club House
Rn. Level
6'9 Customer E-mail
leec~alciaspen.co.us
Terms antl Conditions Cost Total
Radon mitigation with limited lifetime warranty' . Sal Crawl Space with VB10, VB-] 0 mil. Vvpor Blocky"' a 4,198.00 4;198.00
high performance vapor retarder. This product is made from polyethy9ene resins that fm exceed ASTM E-1745,
Class A, B, and C requvemenis.
Sysa-m will be installed on south side of building (reslaumnl storage array.
Perime4r s'cal as possible with one part pol}vrethane caulking ul basement slab.
Proposal'. Stantov Gghtecnng Solutionq Ivc. `SES" will warrant)°" Ne radon levels to he 3.9 pCi/I or 0.04 W'L
or less Car the life of the bngding. SES will provide the labor and mat,rials necessary'to install a mdov
mitigation system. As necessary, crawl spaces will be Baled with cross-laminated polyethylene sheeting and
glued to the Cowda[ion udth conswction adhesive. Where possible the perimeter will be sealed ui[h
polyurethane. SBS uses ord7 0e highest yualiN fans and mamrials including schedule 40 PV C pipe. SES
paints the exterior portion of the system to match llte building.
SES provides a radon tat kit u$h ach system. SES provides the instructions to ran the test, but we do not do
the tasting. Attar you nm the test and send it m the indepehdent NEHA testing company, the results rill be
sent directly to you. This avoids anq conllicl of interest. Checking the aF'slem and retes'ling are dye
responsibility of the homenumer.
Pncment is required the day the radon mitigation system is installed. Alternative payment plans map be
made in advance. If payment is no[ received the day the system is installed the price shall increase h] 890
dollars. In adJition there mac be a 2 % monthly interest charge and collection fres.
W armnh'"-This wanant)' is valid after full payment is received- ICyou run nvo short-tcnn teals or ova long
term test drat exceed 3.9 pCi/~ SES will perlonn the labor and mnlerials to fix the system Cor the life oC
building. This wananry is enach~d to the property and transfers to any ncu' property owners. The fan is wvered
under the manufacNrer's warannty•. SFS'a liability is limited to the amount paid to SES- Please see om Limited
Lifetime Warranty Polio for more details. 'Chic proposal is valid fur 90 days.
W e look forward to hearin_^ from you. lCyou would like to cnntmet uith SF.S or fiave yuestions phase contact
1LS.
Total $L,,9g 06
Eric Goard
To wntract with SES ei},m and rclum:
Rio Grande Building: This job will take two days or two nights. Work will be done during the
PSI-971.doc Page 13
work week and during the day or night hours still to be determined by the City and the
Professional based on the restaurant's hours. There will be some noise associated with this job
(mostly during coring). The loudest noise during the coring is expected to take less than three
hours.
PS1-971.doc Page 14
Stanton Engineering Solutions, Inc.
Your Radon Solution!
1302 Crary Horse Cir.
Edwards, CO 81632
E-mail
stamm~eng~ ahoo.com
Phone # Fax #
866-471-0707 (970)569-3RSR
NEAR NRPP ID's
]03613RT, 103680RMT
]03701RMT
Proposal for Radon Abatement
Date Proposal#
4/2/2008 2453
Contact Information gdtlress of Miigation
Lee Cassm
Customer Phone Lee Cassin
Cih'OfAspen
Rio Grande Building.
Rn Level
10 Customer E-mail
leee(¢,ci.espen.co.ua
Terms and Cond'dions Cost Total
Radon mitigation with ]incited ISethne xmranty . 6,452.00 6,452.00
Seal Craw] Space with VD10, VB-10 mil. Vapor Blockra a high performance vapor retarder. 7 his product is
made Gom polyeth}9rne resins that far exceed ASTM E-1741, Class A, B, and C requirements.
Svslcm w'dl be nm into m«hanical room and towards gas mdcrs area, up above roof line. south west comer of
building.
Proposal Stanton Engineering Solutions, [nc. "SES" will wammty' the mdon levels to be 3 9 pCi/l or 0(14 WL
or Icss for the life of the bedding. SES will provide the labor and materials necessnry'to install a radon
mitigation system. As necessary', crawl spaces will be seriled with cross-lamhtated polyethylene sheeting and
glued to the foundation with constmction adhesive. Where possible the perimeter will be sealed with
pol}'melhane. SES uses only the highest qualiR' Cans and materials including shedule 40 PVC pipe. SF,S
paints the exterior portion of the system m match the building.
SES provides a mdon less k:it with each system. SES provides the instructlons to mn the test, but we do not do
the testing. ARer you run the test and send it to the independent NEFL4 testng company, the results will be
sent direcay to you. 'this avoids any conflict of interest. Checking the system and retesting are the
responsibility of the homroxner.
Payment is required the day the radon mitigation system is installed. Alternative payment plans may be
made in advnoce. If payment is nut received the derv the system is installed the price shall increase by 590
dollar. In addition there may he a 2°/. monthly interest charge and ndleRion fees.
W armnty'. This warranty is valid after full payment is received. If you nm two short-ICrm tests or one long
term to 1 that emeed 3 9 pCVI, SES x511 pcrtorm the IaMr and materials to trx the system Cor the life oC
building. Ibis wartanh is atmched to the propeRy and transfer to any new properly owners. The Can is covered
under the manufaclmer's warranty. SES's liability is limited to the amouul paid to SES. Please see our Limited
LiCelhne W amnh' Policy for more derails. This proposal is valid Cor 90 days.
W e look torw'srd to hwring Gom you. Ityou world like to contract ui0r S8S or have questions plruse conWCt
us.
Total s6,4;2 ~6
Eric Goard
To rnntrad with SES si{,m and return:
PS1-971.doc Page 15
Red Brick Building: This job will take one week or two consecutive weekends. Work will be
done during either the day or night hours still to be determined by the City and the Building
Manager of the Red Brick. There will be some noise associated with this job (mostly during
coring). The loudest noise during the coring is expected to take less than three hours.
PS1-971.doc Page 16
~i
~:__~~
Stanton Engineering Solutions, Inc
Your Radou Solution!
1302 Crazy Horse Cyr.
Edwazds, CO 81632
E-mail
Phone # Fax #
866-471-0707 (970)569-3858
1JEHA NRPP ID'a
1036liRT; 303680R1Jff
103701RIViT
Proposal for Radon .Abatement
Date Proposal#
4/22006 2411
Contact Information Address of MRigation
Lee Cassm
Lee Cassin
Customer Phone City OtAsp®
Red Brick Buuldmg
Rn. Level
23.4 Customer E-mail
IcecQa ciesp~.co.us
Terms and Conditions Cost Total
Radon mitigation udth ]united lifetime wmmuTy` . Seel Cmwl Space with VB6, VB-6 mil. Vapor BloekTM e 15,276.00 11216.00
>>i;;b performance vapor remrdc. Ibis product is made from polyethylene resins that fm ooxd ASTM E-1795,
Class A, B, and C requiranents.
ILe estimate uncludes sealing all tae cmxd space rota and connect all crawl spaces inimnag}•.
Syslea will be located towards comer of east Francis street (see Thawing)
Proposal: Stanton Engnreautg Solutions, Inc. "SES" will warrant}•' the tndon levels to be 3.9 pCi/l or 0.09 WL
or less far the life of the building. SES ail] provide the labor and mataialsnecesvay to install a radon
mitigation system. As naessar}•, crow! spaces wID be sraledad~ crusslaminated polyethylene sheeting ®d
glued m the fo~dation with construction adhesive. Where possble theperimeter ail] Le sealed with
pol}'urMene. SES »s<s only the }ugliest quality fans and ma]erials inc]udim scbedu]e 4D PVC pipe. SES
paints the exmriot poltioa oC the svslem N matdi the building.
SES pmr•ides a radon fesi'kit a4th each system. SES laovida the instructions to Irm the test, but we do noY do
the tinting. ASta ywrun theten and send it m the indepmdem NEEIA testing company, the remits aill be
smT directly m }•ou Tlus avoids any conflict of i¢teresL ChecLing the system and retesting are the
I67An51bdn)• Of file homeoNarer.
Payment is required the day the radon mitigation system is installed. Alternheve payment plans may be
made is advanm ]fprymeat is not re¢ived the dap the system is iosmlkd Ne price shall increase by S90
donna, In addition there may bee 2 % mon Wly interest rLarge and m0erlion fees.
W azrant}•`: This wa¢aoty is valid aner full pe}•ment is received If you nm twro abort-term tests or orrc long
tens xeA that esceed 3.9 pCi/l, SES aill perform the labor and mofenals to fix the s}slrm Cor the lute of
boilding. This warranty is avnched fo the property and tmasfers tp any new ptopaty oxvers. The fan is covered
tmd¢ themanilf'acnlrc's xapanty. SES's liability is limited m the amount paid m SES. Please see tiro Limit
Lifetime W attanty Policy for more details. T7ris proposal is valid for 90 days,
We look farxard m hearing from }•nu lfyou woWd )i):e [o wnhacl with SES m have questions pleaxcontnet
us.
Total
su~l6.Do
Erie Guard To cantrad with SES sign and rainm:
PS1-971.doc Page 17
Water Plant East: This job will take two days. Work will be done during the day between the
hours of 9 am and 5 pm, with setup allowed beginning at 7 am. There will be some noise
associated with this job (mostly during coring), but contractor will work around scheduled
meetings that cannot be changed. The loudest noise during the coring is expected to take less
than three hours.
PS1-971.doc Page 18
~~~
Stantm~t Engineering Soluti~ts, Inc.
1 wr Radet Solution!
1302 Crazy Horse Cir.
Edwards, CO 81632
Email
rterlonen~yaboo.co<n
Phone # Fax #
866-471-4707 (970)569-3858
NEHA NRPP ID's
103613RT, 103680RMT
103701RMT
Proposal for Radon Abatement
Date Proposal#
8212008 2523
Contact ln(orma0on Address of Mi6galion
Jaxmette Wlnkomb
Customer Phone City of Aspen (Wekx Plard East)
larneae Whitcomb
970-920-5069 Avery CO 81611
Rn. Level (pCiA)
5.1 Customer E-mail
7ezmetk Wtdtcamb(dci.espen.co. us
Terms and Con dita ns Cost Total
Radrmmid getion withlimikdlEelime werrnrEy*. 4,624.00 4,62400
Core slab in basemerd area Qocakrm to 6e detexminak by Water Plant Mg<) and run ppe to aSade (eastside of
building)and iartal]fen there abwst roof ine
Proposal StaMOn EnBneecing Solutions hac.'SES" will wersanty* the radon levels to be 3 9 pCi/l m 0 04 WL
a less for the life d'dse (wilding. SES will provide du labor amt mnkriets necesseryte install aradon
midgedon system. As necessQy, aaw] spaces wilt be seded with crossleminated patyefhsdene sheeting and
hued to the fovndeli®with coasWCtien adaesive. Where possible the perimeter mdl be seeledwith
polytrethene. SES uses only the highest qualify fens enlmffiedelsislw]ir~g schedule 40 PVC pipe. SES
pai[Ils the exkaor poxdon of the system to m etch the building
SES provides a mdanteri kd with each syriem. SES provides the instruclio¢ to run the test, but we do not do
the testing Afteryw rm the test and sendit to the indepenhntNEHA testing comparry, the resultswdl be
serd directly to you This awids arty conflict of iraereri Checking the syskm ~.d retesting ere the
respansitality oF'the homeowner.
PaymeN s xegvixed tie day the ndsn mttgatie ryshm is instilled. Aietmlive p aymeni plans maybe
made m advan¢. Ifpaymert is no[ xecened the day the system is iWalled tie p rte shall iac¢sse by $90
dollars. In addition tbe¢ may be a 2qb monthly iashmsl ciaxge and collection teas.
WerraMy*. Thiswxrerdy is valid after full paymerd is received. If you nn two shod-te[m tens ee one long
km tees that exceed 3.9 yCid, SES will perform the labor and mnteriels to 5x die system for the life of
buildittg. This wenardyis etfachedto the property and ivr¢'ers to mynew property owners. The fonts covered
index the mamafacturex's wananty SES's li abilityis limited to the emoted p~idb SE5. Pleare see our Limited
Lifetime Werrardy Policy formme details. This goposel isvelidfor 90 days.
We look forward to hearing from you. If you would like to cordract with SFS ra have questions please ¢rdert
us.
Total $462400
Eric Goard To cmttratt tviM SES vp~t and rdurn:
PS1-971.doc Page 19
EXHIBIT "B" to Professional Services Agreement
Rate Schedule
Each project will be scheduled between September 9a' and November 10~' barring weather. The
City agrees to provide a 20% deposit per project and will pay this deposit within the week prior
to each scheduled project. The balance of the invoice will be paid within 30 days of receipt of
the project invoice.
The following are current bid estimates for each project as outlined in the scope of work. The
City agrees to an adjustment up to $1000 based on night work or weekend work due to
scheduline conflicts with tenants:
Pro'ect Estimate Ad'ustment Total
Red Brick Gym $4128 $4128
Red Brick
Buildin $15,216 $1000 $16,216
East Water Plant $4264 $1000 $5264
Rio Grande
Buildin $6452 $1000 $7452
Ice Garden Skate
Sho $1916 $1916
Golf Club House $4198 $1000 $5198
Sub-Total $36,174 $4000
Pro'ect Total $40,174
PS1-971.doc Page 20
Vlla
ALPERSTEIN & COVELL, Pc.
A T T O R N E Y S A T L A W
DONALD W. ALPERSTEIN
CYNTHIA R COVELL
ANDREA L. BENSON
1600 BROADWAY, SUITE 2350
DENVER, COLORADO 80202-0921
dwa@alpersteincovell.com
cfc@alpersteincovell.com
alb@alpessteincovell.com
GILBERT Y. MARCHAND, JR.
Of Counsel
TO: Aspen City Council
MEMORANDUM
CC: Steve Barwick, City Manager
John Worcester, City Attorney
FROM: Cynthia F. Covell, water counsel
Phil Overeynder, Utilities Director
RE: Extraterritorial Water Service Agreement: Three Trees LLC
DATE: September 2, 2008
Backeround
TELEPHONE (303) 8948I9t
FAX (303) 861.0420
Three Trees LLC, owns property located at 1 Toby Lane. This property is located outside
the City limits, and amendment to an existing extratemtorial water service agreement is required
to provide City water service. A copy of the original water service agreement is attached. It
provides for water service to the then-existing residence in the amount of 2.7 ECUs, and requires
amendment to change the water service if there is a new home or an increased water requirement.
Proposed Amendment to Water Service Agreement
Three Trees has proposed to provide the City with certain easement rights in its property
and an adjacent property, owned by M.S. 4610 LLC, and to undertake certain irrigation system
repair work for the City in return for the City's approval of a water service agreement that will
provide City water to the new residence in an amount not to exceed 6.0 ECUs. A copy of the
Amendment to Water Service Agreement is attached Water service in the amount of 6.0 ECUs
exceeds the usual 5.0 ECUs typically approved for a residence of this size; however, staff
recommends this service in light of the unique benefits to be provided to the City by Three Trees
LLC.
A second non-standazd provision of this Amendment is authorization of use of irrigation
water from the Si Johnson Ditch to meet extensive revegetation requirements, and outdoor
landscaping on this property. The City typically does not permit both raw and treated water
systems on the same property, because of the potential health and safety risks from an inadvertent
cross-connection, and to prevent proliferation of raw water systems, particulazly wells, that impact
the City's water supplies. The Si Johnson Ditch water will be provided to Three Trees LLC by
Westchester Investments, Inc. and the necessary documents to effect this transfer and to create a
mutual ditch company are also prerequisites to the effectiveness of the Water Service Agreement
and Three Trees' obligations to provide easements and irrigation system repairs.
In this case, however, given the easement and irrigation system repair benefits the City
will obtain, staff recommends these non-standard provisions. The City's commitment to provide
water service pursuant to the Original Water Service Agreement as amended by this Amendment
is expressly contingent upon approval and consummation of all related contracts required for
construction and implementation of the easement rights and irrigation system repairs to be
provided by Three Trees LLC, actual conveyance or dedication of agreed-upon easement rights by
both Three Trees LLC and MS 4610 LLC, and completion of the agreed-upon imgation system
repairs by Three Trees LLC.
Recommendation: Staff recommends approval of the Amendment to Water Service Agreement,
contingent upon upon approval and consummation of all related contracts required for
construction and implementation of the easement rights and irrigation system repairs to be
provided by Three Trees LLC, actual conveyance or dedication of agreed-upon easement rights by
both Three Trees LLC and MS 4610 LLC, and completion of the agreed-upon imgation system
repairs by Three Trees LLC.
ORDINANCE NO. ~ `
Series of 2008
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING AN AMENDMENT TO THE WATER SERVICE AGREEMENT WITH BILLY
RAY EUBANKS AND BONNIE JEAN EUBANKS DATED DECEMBER 17, 1996, FOR
PROVISION OF TREATED WATER SERVICE OUTSIDE THE CITY LIMITS FOR A TOTAL
OF 6.0 ECUS TO 1 TOBY LANE, AND PROVIDING DETAILS IN CONNECTION
THEREWITH.
WHEREAS, in December 1996, City Council a Water Service Agreement with Billy Ray
Eubanks and Bonnie Jean Eubanks for provision of City treated water service to their property
located at 1 Toby Lane, Pitkin County, Colorado; and
WHEREAS, the City provided water service in the amount of 2.97 ECUs pursuant to the
Water Service Agreement; and
WHEREAS, Three Trees LLC has purchased the property located at 1 Toby Lane, has
demolished the original residence and plans to construct a new residence on this property; and
WHEREAS, Three Trees LLC has requested that the Water Service Agreement be amended
to permit service to a total of 6.0 ECUs for the new residence on the property; and
WHEREAS, Three Trees LLC has agreed to provide to the City, at its cost, certain easement
rights and irrigation system repairs in return for the requested additional treated water service; and
WHEREAS, the City Council has had an opportunity to review with City staff the proposal
to provide additional service of 3.03 ECUs to provide a total of 6.0 ECUs to 1 Toby Lane,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT
Section 1. The City Council of the City of Aspen hereby determines that the proposed
Amendment to Water Service Agreement, authorizing provision of City water to an additiona13.03
ECUs to serve I Toby Lane is in the best interest of the City, so long as Three Trees LLC provides
easements and performs irrigation system repairs of a sort and in a manner agreed to by both Three
Trees LLC and the City Water Departrnent, the City Council approves the Amendment to Water
Service Agreement attached hereto and incorporated herein by reference, subject to and contingent
upon approval, consummation and implementation of all related contracts for the easement rights
and irrigation system repairs agreed by the City Water Department and Three Trees LLC to be
provided by Three Trees LLC, dedication orconveyance ofagreed-upon easements and related rights
by Three Trees LLC and M.S. 4610 LLC, and actual completion oftheagreed-upon inrigation system
repairs in the manner agreed to by the parties.
Section 2. This ordinance shall not have any effect on existing litigation and shall not
operate as an abatement of any action or proceeding now pending under or by virtue of ordinances
repealed or amended as herein provided, and the same shall be construed and concluded under such
prior ordinances.
Section 3. Ifany section, subsection, sentence, clause, phrase or portion ofthis ordinance
is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a sepazate, distinct and independent provision and shall not affect the validity ofthe
remaining portions thereof.
Section 4. A public hearing on the ordinance shall be held on the day
of , 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the day of , 2008.
Mayor
Attest:
City Clerk
FINALLY ADOPTED, PASSED AND APPROVED THIS DAY OF
2008.
Mayor
Attest:
City Clerk
F:\Client Files\Aspen\Three Trees WSA\ordinance re WSA amendment.wpd
CITY OF ASPEN
WATER SERVICE AGREEMENT
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This Water Service Agreement is entered into this ~`T~ day of~~be.- ,
199 in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation
and home Wile city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the
"City"), and BILLY RAY EUBANKS AND BONNIE JEAN EUBANKS, whose address is 1 Toby
Lane, Aspen, Colorado 8]61 ] (hereafter "Owner").
WITNESSETH
WHEREAS, the City owns and operates the City of Aspen water system in accordance with
the laws of the State of Colorado, and in accordance with the charter, ordinances, rules, regulations,
policies and resolutions of the CiTy of Aspen, and this Agreement is entered into in conformity with,
and subject to, the charter and all such laws, ordinances, rules, regulations, policies and resolutions;
and
WHEREAS, Owner is the sole owner of certain real property located outside of the City of
Aspen and referred to in this Agreement as the "Subject Property", described as follows:
Lot 2, HEFNER SUBDIVISION, according to
the plat thereof recorded April 15, 1985
in Plat Book 17, at Page 11, in Pitkin
County, Colorado,
also known as street and number: i Toby Lane.
WHEREAS, Owner has an existing single-family residence on the Subject Property; and
~~REAS, Owner presently receives municipal water service from the City for the Subject
Prop ut is not party to a Water Service Agreement, as required by the City; and
WHEREAS, Owner wishes to construct a new main for delivery of water service to the
Subject Property, as described in this Agreement; and
WHEREAS, the new main will also enable a hydrant to be installed to provide fire flow to the
Subject Property and others; and
WHEREAS, Owner wishes to receive reimbursement for its costs of construction of such
water main and hydrant if and when water service is provided therefrom to other City customers in
addition to Owner; and
WHEREAS, the City has determined that this Agreement and all covenants herein are
necessary to comply with the City's charter ("Charter"), its municipal code ("Code") and water
policies; and
water 5ervlce Agreement (revision co form of 13/93)
WHEREAS, the City is willing to accept the water main and hydrant when completed and
approved as herein provided, and to provide water service to Owner on the terms and conditions of
this Agreement;
THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the City and Owner agree as follows:
1. Water Service to Project and Subject Property, Upon completion of the water
transmission mahi and hydrant provided for herein, and acceptance by the City, the City will provide
treated water service and fire flow to the Subject Property as provided in this Agreement. Only those
structures and uses approved for the Subject Property maybe served under this Agreement.
2. Construction of Water Transmission Main and Hydrant. Subject to the City's
inspection and approval; Owner will design, construct, install and connect to the City's water
distribution system the hydrant and water transmission main ("Main") required to provide treated
water and &re flow to the Subject Property. It is estimated that the cost of such design, construction,
installation and connection will be approximately $134,100, which expense will be shared between
City and Owner as provided in pazagraph 3 below.
3. Cost Sharing. The parties agree that the City shall contribute up to $50,000 towazds
the costs of engineering, design, construction, inspection, installation and connection of the Main,
which are expected to be approximately $134,100. The City's maximum contribution shall be
$50,000 even if such costs exceed $134,100. In the event such costs are less than $134,100, the City
shall conribute 37.3% of the overall costs (not to exceed $50,000), and Owner shall be responsible
for the remainder of such costs.
Upon final installation ofthe Main, Owner shall certify the final cost of the project, including
~~ ~ preliminary engineering, final design drawings, engineering and review, actual construction costs, job
~ a F inspection, and appropriate permanent location markings and easements. (The foregoing costs are
~ N ~ collectively referred to as the "Certified Cost".) The City shall reimburse its contribution to Owner
a $ within thirty days of receipt of the Certified Cost.
__cz
~ The City, at its own cost (estimated to be approximately $4,000, which will not be included
W d in its $50,000 contribution), shall prepare as-built drawings of the completed Main, and, where
a m necessary, records of survey of easements.
m
v = 4. ReCOllDment by~wner. The Certified Cost minus the City's contribution is defined
'! m a as the Owner's Contribution, and maybe reimbursed to Owner (or Owner's successors and assigns)
r ~ m as set forth in this pazagraph.
mo
~.~, m
The parties acknowledge that property owners who presently receive water service from the
. ~ M City may connect to the Main without additional charge, and that Owner shall not be entitled to
m ~ recoup any portion of the Owner Contribution from such property owners.
mr
~m
~~N ~
~~{ N
- 2 -
Water Servtce Agreement (revision to form of 11/93)
The parties also aclmowledge that there aze several property owners within the vicinity of the
Main who do not presently receive water service from the City, and who may wish to connect to the
Main in order to receive City water service in the future. Such property owners are referred to in this
paragraph as Other Owners. If, at any time within ten years of the date of final installation of the
Main, one or more Other Owners wish to receive water service for their properties by connecting to
the Main, Owner (and Other Owners, as herein provided) shall be entitled to recoup a portion of the
Owner's Contribution as follows:
(1) An amount equal to I divided by the total number of connections to
the Main, multiplied by the portion of the Owner's Contnbution
previously reimbursed pursuant to this paragraph 4, shall be allocated
to the Other Owners who have previously connected to the Main and
made reimbursement according to this paragraph.
(2) An amount equal to 1 divided by the total number of connections to the Main,
multiplied by the portion of the Owner's Contribution not previously
reimbursed pursuant to this paragraph 4, shall be paid to Owner.
Each Other Owner shall be entitled to share in recoupment received from subsequent Other Owners
in proportion to their remaining unreimbursed payments to the Owner and earlier Other Owners.
In no event shall Owner be entitled to recoup more than the Owner's Contribution; nor shall any
Other Owner be pemutted to recoup more than his contribution hereunder. The right to recoup set
forth herein shall be available to Owner and any Other Owners for a period often years from the date
of final installation of the Line.
5. Easements, Owner shall obtain at its own cost and convey in perpetuity to the City
an as-built non-exclusive easement for the Main, along with all necessary access easements for
~.. o maintenance and repair purposes ("easements"). Unless the City agrees otherwise, the easements
~~ ° must be large enough to provide the City with at feast ten (10) feet on either side of the Main and
=~ ~ must specify that (1) sewer lines must be located at least ten (10) feet from any water main or line,
~ and (2) other utilities must be located at least five (5) feet away from any water main or line. Access
. $ = easements shall be of a size detenrlined by the City to be reasonably necessary for the operation,
_= x maintenance and repair of the Main and any other facilities to be located on such easement. Each
~w d party shall be solely responsible for any injury or damages, including costs and attorneys' fees, to
=~ ~ persons or property arising from its own negligent acts or omissions occurring on or resulting from
m its use or occupation of any easement premises. Nothing contained herein, however, shall constitute
~ m = or result in any waiver or diminishment of any defense or limitation available to the City under the
~~ a Colorado Governmental Immunity Act or other applicable law.
m•
c 6. Treated Water Service. Upon final installation and connection of the Main, the City
m will utilize the Main to provide treated water service to the Subject Property in its current condition.
~ ~ ~ Any change in the treated water service requirements for the Subject Property will require amendment
~ ~ of this Agreement.
~ r
~~ o
-~~ - 3 -
w.r.r s. wire Aoreereren[ !revision [o form of 11/93)
The treated water to be delivered by the City pursuant to the terms of this Agreement may
be used for aIl lawful in-building municipal purposes, and for fire protection, swimming pools and the
normal and reasonable outside irrigation oftrees, lawns and gardens. Notwithstanding the foregoing,
all water use will be consistent with the City's Water Policy Resolution (Resolution No. 5, as
amended, (Series of 1993)), and water conservation ordinances.
7. ,T~p Fees - Computation and Payment;~cheduli~g of Tao,. Siace Owner is presently
receiving municipal water service from the City, Owner will not be chazged any additional tap fee or
utility connection charge for treated water service provided to the Subject Property in its current
condition. The City Water Departrnent shall determine scheduling of the physical tap or connections
to the Main.
8. Service Lines. Each service line shall be metered in accordance with the Code at the
sole expense of Owner and cross-connection and backflow prevention devices will be installed at
Owner's expense.
9. Indemnification. Owner shall indemnify the City, its council, council members,
departments, employees, and agents ("indemnified parties") from and against any and all losses,
claims, demands, damages, cases, causes of action or liabilities, of whatever sort, including reasonable
attorneys fees, to which the indemnified parties may be or become subject, arising out of or in
connection with the execution, performance or interpretation of this Water Service Agreement, or
the parties' actions thereunder. In the event any of the indemnified parties receives a complaint or
other notice in respect of any claim, loss or other occurrence giving rise to indemnification hereunder,
Owner shall be advised of such claim, loss or other notice, and Owner shall undertake defense of such
indemnified party or parties at Owner's exense. In the defense of such matter, Owner shall not,
without the consent of the affected indemnified parties, consent to the entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the full release of each
indemnified party. Upon notice from the City, Owner shall promptly and fully pay or satisfy any and
i= all losses, claims, demands, damages, cases, causes of action or liabilities, of whatever sort, including
~'~ ~°+ reasonable attorneys fees as they are incurred, which any indemnified party incurs as result or by
`y= virtue of any matter as to which indemnification is provided in this paragraph. Nothing herein shall
a ~ be deemed or constnled to waive or limit the City's governmental immunity in any way.
`~ v
= Y 10. Limitations on Provision of Water Service. This Agreement is only for the supply of
~'~` ~ treated water service as herein described and no expansion of uses, connections, or water service
"~ ~ beyond that set forth herein is in any way authorized by this Agreement. The City is not by this
a ~ Agreement prejudging, certifying or guaranteeing its ability to provide treated water service to any
~ m = use or structure except as provided herein, nor may this Agreement be used as evidence of approval
.~ °•.' m of any land use requests, or as evidence of approval of water service for any land use request, except
~mmm' as provided herein.
~ma
~~ m 11. Service Subiect to the Cry Charter Codes R~,les Reg;tlationc and policies. Owner
~~ ~ and its successors in interest shall be bound by, and all water service provided hereunder shall be
=N ~' subject to, al] applicable provisions of the Charter and the Code, as well as all applicable rules,
~m~
~~ ~ policies or regulations of the City now in effect or as may be hereafter adopted.
~~ o
--aa - 4 -
Wacer Service Agreemen[ (revision [o form of 11/93)
12, Rules Regardjn~ Water Use. Owner agrees to assist the City in every manner
reasonably possible to enforce the City's ordinances, rules and regulations made to protect purity,
safety and supply of the water delivered pursuant to this Agreement, including curtailment during
times of shortage, elimination of any potential cross-connections, and the utilization of water
conservation devices as set forth in the Code. Owner also agrees to prohibit all unnecessary or
unreasonable waste of water on the Subject Property, and to make reasonable efforts to enforce such
prohibition. The unreasonable or unnecessary waste ofwater shall be defined as set forth in the Code.
13. Source of Water Suooly. The parties to this Agreement recognize that the City's water
supply is dependent upon sources from which the supply is variable in quantity and quality and
beyond the City's reasonable control; therefore, no liability shall attach to the City under this
Agreement o_ n account of any failure to accurately anticipate availability ofwater supply or because
ofan actual failure of water supply due to inadequate runoff, poor quality, failure of infrastructure,
or other occurrence beyond the City's reasonable control.
14. No Cmarantee of Water Quality O riti or Preccnrr. The City makes no promise
or guazantee of pressure, quantity or quality of water supply for any purpose, including fire
suppression, except as specifically provided herein or as is required by applicable federal, state and
local laws and regulations. The City agrees to treat its water to meet all mandatory local, state and
federal potable water standards.
I5. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be
deemed a waiver of any such right and shall not affect the right of such party to exercise at some
future time said right or any other right it may have hereunder.
16. Notices. Ail notices required to be given shall be deemed given upon deposit in the
United States mail, first class postage prepaid, properly addressed to the person or entity to whom
~.. o directed at his or its address shown herein, or at such other address as shall be given by notice
,'~„ ~ pursuant to this pazagraph. Copies of such notices shall also be sent in the same manner to the City
~'" ~ Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611.
~y
~oz 17. Severabilitv. If any provision of this Agreement shall be or become invalid or
~ W ~ unenforceable, the remainder of the provisions shall not be affected thereby, and each and every
=W 6 provision shall be enforceable to the fullest extent permitted by law.
=gym
~a m 18. Ernire A Bement. Except as otherwise provided herein, this Agreement supersedes
°e = and controls all prior written and oral agreements and representations of the parties.
imm
~~ m 19. Interpretation. Neither the titles to this Agreement nor the recitals appearing prior to
~ ~ m pazagraph 1 of this Agreement shall be used to alter the meaning of this Agreement and in the event
m m of a conflict, the terms and conditions of the numbered paragraphs shall govern.
~~e
.M
m ~ 20. Bindi ~geement - Recordine. This Agreement is binding upon the parties hereto,
their successors and assigns, and any sale of the Subject Property, or any portion thereof shall be
..N u subject to this Agreement. This Agreement shall be recorded with the Pitkin County Clerk and
_am
- 5 -
Water Service Agreement (revtslon to form of 31/93)
Recorder, and shall impose covenants running with the land upon all of the Subject Property. Deeds
to subsequent owners shall provide notice of this Agreement and the obligations contained herein.
21. ('*nv .rningJ aw: Venue: Attorneys' Fees. This Agreement and the rights and
obligations ofthe parties hereunder shall be governed by and construed in accordance with the laws
ofthe State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin County,
Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict regazding
the terms of this Agreement or the rights and obligations of the parties hereto, the prevailing parry
shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees
and reasonable attorneys' fees.
22. Authorization of Si~atures. The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Agreement have been performed and
that the persons signing for each party have been duly authorized to do so.
23. Counterparts. This Agreement maybe signed using counterpart signature pages, with
the same force and effect as if all parties signed on the same signature page.
IN WITNESS WHEREOF, the parties have executed this Agreement the date and yeaz first
above written.
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and
Home Rule City
Phil Overeynder, R'~_~cector
APPROVED AS TO FORM:
Aspen City Attorney
I I"III "III "III' I"I V'III' ~'III'I"I III "V"III I"I
427860 02/16/1999 09:40ii pGREEMEN DRVIS 9ILVI
6 of 7 R 36.00 D 0.00 N 0.00 PITKIN COUNTY CO
O~K./1.
BILLY RAY E ANKS
~~ ~ ~„
BONNIE JEAN UBANKS
- 6 -
Water Service AgreemenC !revision to form of 11/93)
;:
County of 1'i'(
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State of T_ ~tY~ )
The foregoing instrument was subscribed and sworn to before me this ~ ~ •- day of
~~?r m hey, 1 ~by Eilly Ray Eubanks.
County of (~
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Notary Public ' """'•~~•,
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My Cagmisslan Expires :.,~._.; 4._
NOV9yIBER90.1fa98 ~ ' /M'` f
j~ The fore oing instrument was subscribed and sworn to before me this ~ day of
IJece 1~~ by Bonnie Jean Eubanks.
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NOVEMBER 90, tii98
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427860 02/18/3999 09:40R RGREEMEN DRVIS fiILVI
7 of 7 R 36.00 D 0.00 N 0.00 PITKIN COUNTY CO
- ~ -
Water Service Agreement (revision [o form of 11/93)
CITY OF ASPEN
AMENDMENT TO WATER SERVICE AGREEMENT
This Amendment to Water Service Agreement ("Amendment") is entered into this
day of , in Aspen, Colorado, between THE CITY OF
ASPEN, a Colorado municipal corporation and home rule city whose address is 130 South
Galena Street, Aspen, Colorado 81611 (hereafrer the "City"), and Three Trees, LLC a limited
liability company organized under the laws of Colorado, whose address is c% Thomas J. Todd,
Esq., Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 81611 (hereinafter "Three
Trees").
WITNESSETH
WHEREAS, the City is party to a water service agreement dated December 17, 1996,
with Billy Ray Eubanks and Bonnie Jean Eubanks, recorded with the Pitkin County Recorder at
Reception No. 427860 (the "Original Water Service Agreement"); and
WHEREAS, the Original Water Service Agreement authorizes the City to provide certain
extratemtorial municipal water service the Eubanks' property ("Subject Property"), which is
described as
Lot 2, HEFNER SUBDIVISION, according to the
plat thereof recorded April 15, 1985, in Plat Book
17, at Page 11, in Pitkin County, Colorado,
also known as street and number: 1 Toby Lane, Aspen, Colorado; and
WHEREAS, Three Trees is successor-in-interest to the Subject Property; and
WHEREAS, the Original Water Service Agreement authorized the City to provide treated
water service to the Subject Property in its then-current condition, and also stated that any
change in the treated water service requirements for the Subject Property would require
amendment of the Original Water Service Agreement; and
WHEREAS, Three Trees seeks water service for a new single-family residence on the
Subject Property, which will be constructed to replace the Eubanks' original residence; and
WHEREAS, the new single-family residence will have treated water service
requirements different from those served pursuant to the Original Water Service Agreement, thus
requiring amendment of the Original Water Service Agreement; and
WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requires
that the extension of water service outside the boundaries of the City shall be made only pursuant
to a written agreement with the City, that the City shall not be obligated to extend such service,
and may provide such service only upon a determination that it is in the best interests of the City,
and that the City may impose such requirements by agreement as it deems necessary or
appropriate to protect its best interests; and
WHEREAS, the City's Water Service Extension Policy permits water service extension
only upon demonstration that such extension will meet the policy goals and requirements of
Amendmenuo Wafer Service Agreement (0808)
Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Aspen
Municipal Code as the same may be further amended from time to timej, including the
requirement that the City must recover its costs associated with providing such extraterritorial
service, and make a profit; and
WHEREAS, the City has determined that this Amendment and all covenants herein aze
necessary to comply with the Code and the City's water policies, and will allow the City to
recover its costs associated with such extraterritorial service, and make a profit; and
WHEREAS, the City is not hereby representing that it is a regulated public utility, or
holding itself out to the public in general as capable of or intending to provide water service
extraterritorially; and
WHEREAS, the City is willing to amend the Original Water Service Agreement and to
provide water service to the Subject Property on the terms and conditions of the Original Water
Service Agreement as amended by this Amendment;
THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the City and Three Trees agree as follows:
1. Treated Water Service to Subject Property. The City hereby agrees to provide treated
water service to the new single family residence on the Subject Property under the terms of the
Original Water Service Agreement (as modified by this Amendment) in such quantities and to
the extent herein provided so as to serve the structures and indoor treated water uses authorized
by Pitkin County under the approvals granted to Three Trees as recorded at Reception No.
. The City will continue to be the sole provider of treated water service to the
Subject Property, and shall continue to provide treated water service adequate to meet the
approved demands and uses of one single-family residence on the Subject Property, provided,
however, that the water service provided pursuant to the Original Water Service Agreement
(2.97 ECUs) shall be increased to no more than 6.0 ECUs, and Three Trees expressly
acknowledges that the City shall not be required to supply water to serve more than 6.0 ECUs,
and further provided, that the maximum volume of treated water the City shall be required to
provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 2.4
acre-feet per yeaz. Only the single family structure approved by Pitkin County pursuant to the
above-described approval may be served under the Original Water Service Agreement as
amended by this Amendment. No outdoor irrigation using treated water is permitted by the
Original Water Service Agreement as amended by this Amendment. Any further expansion in
the treated water service requirements for the Subject Property above 6.0 ECUs or 2.4 acre-feet
per year, or any outdoor water use, will require approval by the City, and further amendment of
the Original Water Service Agreement, and the City makes no guazantees or assurances that any
such requested amendment will be approved.
2. Raw Water Use on Subject Property. The City acknowledges that Three Trees intends to
use untreated water from the Si Johnson Ditch for revegetation and outdoor landscaping
purposes, and this water and/or water rights will be acquired from Westchester Investments, Inc.
Three Trees acknowledges that use of such untreated water will require installation of a pump in
the Si Johnson Ditch in order to deliver the water to the Subject Property. Three Trees further
acknowledges that the City owns an interest in the Si Johnson Ditch and water rights decreed
thereto, and operates and maintains the ditch for its own benefit, and for the benefit of others
holding water rights decreed to the Si Johnson Ditch including Three Trees' grantor, Westchester
Amendment ro Waler Service Agreement (0808)
Investments, Inc. Three Trees will install a pump, wingwalls, and overflow devices to allow it to
take delivery of its entitlement from the Si Johnson Ditch, and will submit designs and plans for
such equipment and devices to the City for approval prior to installation, which approval shall
not be unreasonably withheld or delayed. Three Trees will be responsible for obtaining any state
administrative or water court approvals that may be required in order for it to use the Si Johnson
Ditch water at the location and in the manner it desires, provided that the City shall not oppose
and shall cooperate with Three Trees in obtaining such approvals, if any, so long as the City's
own water rights will not be adversely affected thereby. Other than by use of the above-
described untreated water from the Si Johnson Ditch on the Subject Property, Three Trees agrees
that unless the Original Water Service Agreement is further amended (which the City has no
obligation to do), there will be no outdoor irrigation on the Subject Property with water delivered
from the City's system or from any wells or other water rights on the Three Trees' property, and
that neither Three Trees nor any owner or user of the Subject Property will otherwise develop or
utilize any other independent raw water systems and/or water rights or wells within the Subject
Property. The parties acknowledge that the Subject Property is presently connected to the City
water, and is also served by a well bearing Permit No. 276472. Three Trees agrees that this well
and any other existing well on the property must be plugged and abandoned in accordance with
the well abandonment procedures of the Colorado State Engineer, and that Three Trees will
provide the City with evidence of such abandonment within 30 days of approval of this
Amendment by the Aspen City Council. In the event Three Trees fails to abandon the well and
provide proof of such abandonment by this date, the City will disconnect the existing water tap
to the Subject Property, at Three Trees' cost, and will not reconnect the Subject Property to the
City water main until such well abandonment and proof thereof have been provided to the City.
3. Tao Fees, System Development Chaz~es, and Payment in lieu of Water Rights Dedication
- Computation and Pavment; Scheduling of Taos.. All tap fees for treated water service herein
provided shall be assessed utilizing the City's prevailing applicable tap fee. As authorized by
Code Section 28.12.070, credit shall be provided for previously-paid tap fees, well system
development fees, and fees paid in lieu of water right dedication. All applicable tap fees, well
system development fees, and payments in lieu of water rights dedication, and other hookup
chazges shall be paid at the time of building permit issuance.
4. Limitations on Provision of Water Service. The Original Water Service Agreement, as
amended by this Amendment, is only for the supply of treated water service as herein described
and no expansion of uses, connections, or water service beyond those set forth herein is in any
way authorized by the Original Water Service Agreement or this Amendment.
5. Property Rights in Water. All water furnished under the Original Water Service
Agreement as amended by this Amendment is provided on a contractual basis for use on the
Subject Property as described in the Original Water Service Agreement, as amended by this
Amendment, and all property rights to the water to be famished hereunder are reserved to the
City. Water service provided under the Original Water Service Agreement as amended by this
Amendment does not include any right to make a succession of uses of such water, and upon
completion of the primary use of the water on the Subject Property, all dominion over the water
provided reverts completely to the City. Subject to the prohibition against waste and any other
limitations on water use imposed in the Original Water Service Agreement, Three Trees shall
have no obligation to create any particular volume of return flow. Three Trees agrees to
cooperate with the City in measuring and reporting return flows to the extent such measuring and
reporting are required by the Colorado State Engineer or his agents.
Amendmerst to Water Service Agreemen( (0808)
6. Enforcement by the City. Three Trees recognizes and agrees that the City has the right to
enforce its rules, policies, regulations, ordinances and the terms of the Original Water Service
Agreement and this Amendment, by the disconnection of the supply of water provided
hereunder. Additionally, in the event that Three Trees violates the rules, policies, regulations or
ordinances of the City or the terms of the Original Water Service Agreement or this Amendment,
the City shall have all remedies available to it at law or in equity, or as provided in the Code.
The City shall be free from any liability arising out of the exercise of its rights under this
pazagraph.
7. Termination if I11eQa1. The parties agree, intend and understand that the obligations
imposed by the Original Water Service Agreement and this Amendment are conditioned upon
being consistent with state and federal laws and the Code. The parties further agree that if any
provision of the Original Water Service Agreement as amended by this Amendment becomes in
its performance inconsistent with the Code or state or federal laws, or is declazed invalid, the
parties shall in good faith negotiate to modify the Original Water Service Agreement and this
Amendment so as to make them consistent with the Code or state or federal laws as appropriate,
and if, after a reasonable amount of time, their negotiations aze unsuccessful, this Agreement
shall terminate.
8. Annexation. Upon the request of the City, Three Trees, or its successor-in-interest, shall
petition for and/or consent to the annexation of the Subject Property to the City of Aspen at such
time as determined by the City in its sole discretion, all as authorized pursuant to C.R.S. § 31-12-
121 (2007). Although land use approvals or development rights not vested in accordance with
law prior to the annexation shall be subject to the terms, conditions, and regulations of the Aspen
Municipal Code upon and after annexation, annexation shall not divest or diminish any land use
approvals or development rights awarded by Pitkin County for the Subject Property, to the extent
such approvals and rights aze legally vested on behalf of Three Trees prior to annexation to the
City. Nor shall annexation alter Three Trees' or its successors' rights to ownership and use of
water rights in the Si Johnson Ditch or Three Trees' role as a stockholder in a mutual ditch
company to be incorporated for the Si Johnson Ditch. Notwithstanding annexation, the Original
Water Service Agreement as amended by this Amendment will govern provision of water service
to the Subject Property. This Pazagraph 8 shall serve as the annexation agreement between the
parties, and the agreement to annex set forth herein shall be enforceable by an action for specific
performance filed by the City in the Pitkin County District Court pursuant to C.R.S. § 31-12-121
(2007), in which event the City shall chazge, and Three Trees or its successor-in-interest shall
pay, all costs and fees associated with such enforcement action.
9. No Regulated Public Utility Status. The parties agree that the City does not become a
regulated public utility compelled to serve other parties similazly situated as a result of the
Original Water Service Agreement or this Amendment. Three Trees agrees that neither it, nor its
successors in interest or assigns shall at any time petition the Colorado Public Utilities
Commission to acquire jurisdiction over any water rate set by the City. The parties agree that in
the event the City is held to be a regulated public utility by virtue of the Original Water Service
Agreement or this Amendment, the Original Water Service Agreement and this Amendment
shall terminate and be of no further force or effect.
10. Amendment; Assignment. Neither the Original Water Service Agreement (as amended
by this Amendment), nor the obligations of either party hereto, nor the right to receive water
service hereunder, may be amended or assigned without the written consent of the parties hereto,
provided, however, that subsequent owners of the Subject Property shall be subject to the terms
Amendment to Water Service Agreement (0808)
and conditions of the Original Water Service Agreement, as amended by this Amendment, and
shall be entitled to receive water service pursuant to the Original Water Service Agreement as
amended by this Amendment.
11. Binding Aereement -Recording. This Amendment is binding upon the parties hereto,
their successors and assigns, and any sale of the Subject Property shall be subject to the Original
Water Service Agreement as amended by this Amendment. This Amendment shall be recorded
with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land
upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this
Amendment and the obligations contained herein.
12. Authorization of Si nag lures. The parties acknowledge and represent to each other that all
procedures necessary to validly contract and execute this Amendment have been performed and
that the persons signing for each party have been duly authorized to do so.
13. Counterparts. This Amendment may be signed using counterpart signature pages, with
the same force and effect as if all parties signed on the same signature page.
14. Original Water Service Aereement Remains in Effect. Except as herein expressly
amended, the Original Water Service Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment the date and yeaz
first above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
Aspen City Attorney
Three Trees, LLC
By
APPROVED AS TO FORM:
THE CITY OF ASPEN,
COLORADO
A Municipal Corporation and
Home Rule City
Mayor
Amendmen!!o Woler Service Agreement (0808)
Attorney for Three Trees LLC
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
(SEAL)
Subscribed and sworn to before me this _ day of , 2008,
as of Three Trees LLC.
Witness my hand and official seal. My commission expires
Notary Public
F:\Client Files4lspen\71nee frees WSA\amended water smite agreement rev8828g8 wpd
AmeMment to Water Service Agreement (0808)
CITY OF ASPEN
AMENDMENT TO WATER SERVICE AGREEMENT
This Amendment to Water Service Agreement ("Amendment") is entered into this
day of , in Aspen, Colorado, between THE CITY OF
ASPEN, a Colorado municipal corporation and home rule city whose address is 130 South
Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Three Trees, LLC a limited
liability company organized under the laws of Colorado, whose address is c/o Thomas J. Todd,
Esq., Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 81611 (hereinafter "Three
Trees").
WITNESSETH
WHEREAS, the City is party to a water service agreement dated December 17, 1996,
with Billy Ray Eubanks and Bonnie Jean Eubanks, recorded with the Pitkin County Recorder at
Reception No. 427860 (the "Original Water Service Agreement"); and
WHEREAS, the Original Water Service Agreement authorizes the City to provide certain
extraterritorial municipal water service the Eubanks' property ("Subject Property"), which is
described as
Lot 2, HEFNER SUBDIVISION, according to the
plat thereof recorded April 15, 1985, in Plat Book
17, at Page 11, in Pitkin County, Colorado,
also known as street and number: 1 Toby Lane, Aspen, Colorado; and
WHEREAS, Three Trees is successor-in-interest to the Subject Property; and
WHEREAS, the Original Water Service Agreement authorized the City to provide treated
water service to the Subject Property in its then-current condition, and also stated that any
change in the treated water service requirements for the Subject Property would require
amendment of the Original Water Service Agreement; and
WHEREAS, Three Trees seeks water service for a new single-family residence on the
Subject Property, which will be constructed to replace the Eubanks' original residence; and
WHEREAS, the new single-family residence will have treated water service
requirements different from those served pursuant to the Original Water Service Agreement, thus
requiring amendment of the Original Water Service Agreement; and
WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requires
that the extension of water service outside the boundaries of the City shall be made only pursuant
to a written agreement with the City, that the City shall not be obligated to extend such service,
and may provide such service only upon a determination that it is in the best interests of the City,
and that the City may impose such requirements by agreement as it deems necessary or
appropriate to protect its best interests; and
WHEREAS, the City's Water Service Extension Policy permits water service extension
only upon demonstration that such extension will meet the policy goals and requirements of
Amendmen! fo Water Service Agreemen( (0808)
Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Aspen
Municipal Code as the same may be further amended from time to time], including the
requirement that the City must recover its costs associated with providing such extratemtorial
service, and make a profit; and
WHEREAS, the City has determined that this Amendment and all covenants herein are
necessary to comply with the Code and the City's water policies, and will allow the City to
recover its costs associated with such extraterritorial service, and make a profit; and
WHEREAS, the City is not hereby representing that it is a regulated public utility, or
holding itself out to the public in general as capable of or intending to provide water service
extraterritorially; and
WHEREAS, the City is willing to amend the Original Water Service Agreement and to
provide water service to the Subject Property on the terms and conditions of the Original Water
Service Agreement as amended by this Amendment;
THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the City and Three Trees agree as follows:
1. Treated Water Service to Subject Property. The City hereby agrees to provide treated
water service to the new single family residence on the Subject Property under the terms of the
Original Water Service Agreement (as modified by this Amendment) in such quantities and to
the extent herein provided so as to serve the structures and indoor treated water uses authorized
by Pitkin County under the approvals granted to Three Trees as recorded at Reception No.
. The City will continue to be the sole provider of treated water service to the
Subject Property, and shall continue to provide treated water service adequate to meet the
approved demands and uses of one single-family residence on the Subject Property, provided,
however, that the water service provided pursuant to the Original Water Service Agreement
(2.97 ECUs) shall be increased to no more than 6.0 ECUs, and Three Trees expressly
acknowledges that the City shall not be required to supply water to serve more than 6.0 ECUs,
and further provided, that the maximum volume of treated water the City shall be required to
provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 2.4
acre-feet per yeaz. Only the single family structure approved by Pitkin County pursuant to the
above-described approval may be served under the Original Water Service Agreement as
amended by this Amendment. No outdoor imgation using treated water is permitted by the
Original Water Service Agreement as amended by this Amendment. Any further expansion in
the treated water service requirements for the Subject Property above 6.0 ECUs or 2.4 acre-feet
per yeaz, or any outdoor water use, will require approval by the City, and further amendment of
the Original Water Service Agreement, and the City makes no guazantees or assurances that any
such requested amendment will be approved.
2. Raw Water Use on Subject Property. The City acknowledges that Three Trees intends to
use untreated water from the Si Johnson Ditch for revegetation and outdoor landscaping
purposes, and this water and/or water rights will be acquired from Westchester Investments, Inc.
Three Trees acknowledges that use of such untreated water will require installation of a pump in
the Si Johnson Ditch in order to deliver the water to the Subject Property. Three Trees further
acknowledges that the City owns an interest in the Si Johnson Ditch and water rights decreed
thereto, and operates and maintains the ditch for its own benefit, and for the benefit of others
holding water rights decreed to the Si Johnson Ditch including Three Trees' grantor, Westchester
Amendment ro Water Service Agreement (0808)
Investments, Inc. Three Trees will install a pump, wingwalls, and overflow devices to allow it to
take delivery of its entitlement from the Si Johnson Ditch, and will submit designs and plans for
such equipment and devices to the City for approval prior to installation, which approval shall
not be unreasonably withheld or delayed. Three Trees will be responsible for obtaining any state
administrative or water court approvals that may be required in order for it to use the Si Johnson
Ditch water at the location and in the manner it desires, provided that the City shall not oppose
and shall cooperate with Three Trees in obtaining such approvals, if any, so long as the City's
own water rights will not be adversely affected thereby. Other than by use of the above-
described untreated water from the Si Johnson Ditch on the Subject Property, Three Trees agrees
that unless the Original Water Service Agreement is further amended (which the City has no
obligation to do), there will be no outdoor irrigation on the Subject Property with water delivered
from the City's system or from any wells or other water rights on the Three Trees' property, and
that neither Three Trees nor any owner or user of the Subject Property will otherwise develop or
utilize any other independent raw water systems and/or water rights or wells within the Subject
Property. The parties acknowledge that the Subject Property is presently connected to the City
water, and is also served by a well bearing Permit No. 276472. Three Trees agrees that this well
and any other existing well on the property must be plugged and abandoned in accordance with
the well abandonment procedures of the Colorado State Engineer, and that Three Trees will
provide the City with evidence of such abandonment within 30 days of approval of this
Amendment by the Aspen City Council. In the event Three Trees fails to abandon the well and
provide proof of such abandonment by this date, the City will disconnect the existing water tap
to the Subject Property, at Three Trees' cost, and will not reconnect the Subject Property to the
City water main until such well abandonment and proof thereof have been provided to the City.
3.
- Computation and Payment; Schedulin¢ of Tans. .All tap fees for treated water service herein
provided shall be assessed utilizing the City's prevailing applicable tap fee. As authorized by
Code Section 28.12.070, credit shall be provided for previously-paid tap fees, well system
development fees, and fees paid in lieu of water right dedication. All applicable tap fees, well
system development fees, and payments in lieu of water rights dedication, and other hookup
chazges shall be paid at the time of building permit issuance.
4. Limitations on Provision of Water Service. The Original Water Service Agreement, as
amended by this Amendment, is only for the supply of treated water service as herein described
and no expansion of uses, connections, or water service beyond those set forth herein is in any
way authorized by the Original Water Service Agreement or this Amendment.
5. Property Riehts in Water. All water furnished under the Original Water Service
Agreement as amended by this Amendment is provided on a contractual basis for use on the
Subject Property as described in the Original Water Service Agreement, as amended by this
Amendment, and all property rights to the water to be famished hereunder aze reserved to the
City. Water service provided under the Original Water Service Agreement as amended by this
Amendment does not include any right to make a succession of uses of such water, and upon
completion of the primary use of the water on the Subject Property, all dominion over the water
provided reverts completely to the City. Subject to the prohibition against waste and any other
limitations on water use imposed in the Original Water Service Agreement, Three Trees shall
have no obligation to create any particulaz volume of return flow. Three Trees agrees to
cooperate with the City in measuring and reporting return flows to the extent such measuring and
reporting are required by the Colorado State Engineer or his agents.
Amemiment to Water Service Agreement /0808)
6. Enforcement by the City. Three Trees recognizes and agrees that the City has the right to
enforce its rules, policies, regulations, ordinances and the terms of the Original Water Service
Agreement and this Amendment, by the disconnection of the supply of water provided
hereunder. Additionally, in the event that Three Trees violates the Hiles, policies, regulations or
ordinances of the City or the terms of the Original Water Service Agreement or this Amendment,
the City shall have all remedies available to it at law or in equity, or as provided in the Code.
The City shall be free from any liability arising out of the exercise of its rights under this
pazagraph.
7. Termination if Illeeal. The parties agree, intend and understand that the obligations
imposed by the Original Water Service Agreement and this Amendment aze conditioned upon
being consistent with state and federal laws and the Code. The parties further agree that if any
provision of the Original Water Service Agreement as amended by this Amendment becomes in
its performance inconsistent with the Code or state or federal laws, or is declazed invalid, the
parties shall in good faith negotiate to modify the Original Water Service Agreement and this
Amendment so as to make them consistent with the Code or state or federal laws as appropriate,
and if, after a reasonable amount of time, their negotiations aze unsuccessful, this Agreement
shall terminate.
8. Annexation. Upon the request of the City, Three Trees, or its successor-in-interest, shall
petition for and/or consent to the annexation of the Subject Property to the City of Aspen at such
time as determined by the City in its sole discretion, all as authorized pursuant to C.R.S. § 31-12-
121 (2007). Although land use approvals or development rights not vested in accordance with
law prior to the annexation shall be subject to the terms, conditions, and regulations of the Aspen
Municipal Code upon and after annexation, annexation shall not divest or diminish any land use
approvals or development rights awazded by Pitkin County for the Subject Property, to the extent
such approvals and rights aze legally vested on behalf of Three Trees prior to annexation to the
City. Nor shall annexation alter Three Trees' or its successors' rights to ownership and use of
water rights in the Si Johnson Ditch or Three Trees' role as a stockholder in a mutual ditch
company to be incorporated for the Si Johnson Ditch. Notwithstanding annexation, the Original
Water Service Agreement as amended by this Amendment will govern provision of water service
to the Subject Property. This Pazagraph 8 shall serve as the annexation agreement between the
parties, and the agreement to annex set forth herein shall be enforceable by an action for specific
performance filed by the City in the Pitkin County District Court pursuant to C.R.S. § 31-12-121
(2007), in which event the City shall chazge, and Three Trees or its successor-in-interest shall
pay, all costs and fees associated with such enforcement action.
9. No Reeulated Public Utility Status. The parties agree that the City does not become a
regulated public utility compelled to serve other parties similarly situated as a result of the
Original Water Service Agreement or this Amendment. Three Trees agrees that neither it, nor its
successors in interest or assigns shall at any time petition the Colorado Public Utilities
Commission to acquire jurisdiction over any water rate set by the City. The parties agree that in
the event the City is held to be a regulated public utility by virtue of the Original Water Service
Agreement or this Amendment, the Original Water Service Agreement and this Amendment
shall terminate and be of no further force or effect.
10. Amendment; Assignment. Neither the Original Water Service Agreement (as amended
by this Amendment), nor the obligations of either party hereto, nor the right to receive water
service hereunder, maybe amended or assigned without the written consent of the parties hereto,
provided, however, that subsequent owners of the Subject Property shall be subject to the terms
Amendment to Water Service Agreement (0808)
and conditions of the Original Water Service Agreement, as amended by this Amendment, and
shall be entitled to receive water service pursuant to the Original Water Service Agreement as
amended by this Amendment.
11. Bindin¢ Agreement -Recording. This Amendment is binding upon the parties hereto,
their successors and assigns, and any sale of the Subject Property shall be subject to the Original
Water Service Agreement as amended by this Amendment. This Amendment shall be recorded
with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land
upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this
Amendment and the obligations contained herein.
12. Authorization of Signatures. The parties acknowledge and represent to each other that all
procedures necessary to validly contract and execute this Amendment have been performed and
that the persons signing for each party have been duly authorized to do so.
13. Counteroarts. This Amendment may be signed using counterpart signature pages, with
the same force and effect as if all parties signed on the same signature page.
14. Original Water Service Agreement Remains in Effect. Except as herein expressly
amended, the Original Water Service Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment the date and yeaz
first above written.
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
Aspen City Attorney
Three Trees, LLC
By
Title:
APPROVED AS TO FORM:
THE CITY OF ASPEN,
COLORADO
A Municipal Corporation and
Home Rule City
By_
Mayor
Amendment to Waler Service Agreement (0808)
Attorney for Three Trees LLC
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
Subscribed and sworn to before me this _ day of , 2008,
as of Three Trees LLC.
Witness my hand and official seal. My commission expires
(SEAL)
Notary Public
F:\Client FilesWspen\Tluee Trees WSA~amended water service ag,eement mr082888 wpd
Amendment m Wafer Service Agreement (0808)
vui a.
r~e~,aw
~w~~
Memorandum
TO: Mayor and Members of Council
FROM: James R. True
DATE: September 2, 2008
RE: Cooper Street Settlement
This action was approved at first reading on August 25, 2008 and set for September 8, 2008 for a
motion to continue the public hearing to September 22, 2008.
Unfortunately, due to a newspaper error, the Notice of Public Hearing, that is required by the
code, was not published on the required date for a September 8`h public hearing. Thus, although
the property was properly posted, the notice was properly mailed, and the ordinance was
published all setting forth a September 8`h hearing, there is still a defect that requires a
continuance of this public hearing until September 22, 2008.
ACTION REQUESTED: " I move to continue the public hearing regarding Ordinance No. 24,
Series of 2008 to September 22, 2008."
CITY MANAGER'S COMMENTS:
co: City Manager
Community Development
Vut b
MEMORANDUM
TO:
FROM:
DATE OF MEMO:
MEETING DATE:
RE:
Mayor and City Council
Don Taylor, Director of Financial Services
9-2-08
9-8-08
Authorization to issue Bonds for Castle Creek Hydroelectric
Facility
~-
SUMMARY: This ordinance allows the City Council to authorize the issuance of bonds in the
amount of $5,500,000 for the purpose of construction a hydroelectric facility on Castle Creek.
Aspen voters approved the debt and the project was included in the 2008 budget.
PREVIOUS COUNCIL ACTION: In November of 2007 voters approved a ballot question
authorizing the issuance of general obligation bonds in order to finance the construction of a
small hydroelectric facility. The amount of the Bonds authorized for issuance was $5,500,000.
Construction of the facility was included in the 2008 budget and it is now time to put the
financing in place.
REQUEST OF COUNCIL: Staff requests that City Council approve the ordinance authorizing
the issuance of bonds to construct the Castle Creek hydroelectric facility.
DISCUSSION: At an election held on November 6, 2007, the eligible voters of the City
authorized the City to issue $5,500,000 in general obligation bonds in order to finance the costs
of the project. The project consists of constructing and equipping a new hydroelectric facility.
The proposed hydroelectric facility, to be known as the Castle Creek Hydroelectric Plant, will
utilize existing water rights, head gates, raw water transmission and water storage components of
the original Castle Creek hydroelectric plant, which met all of the City's electric power needs
from 1892 through 1958, when it was decommissioned. The project is planned to reestablish the
generating capacity of the original plant, which will require construction of a new powerhouse,
penstock, head works, and tail race along with the installation of a new turbine, generator and
control equipment. The project is also planned to include enlarging portions of the Castle Creek
pipeline (raw water supply) to eliminate deficiencies in hydraulic capacity. The proposed facility
will be located on property owned by the City and no real estate will be necessary to be acquired
to complete the project.
The City's total budget for the project is currently $6,197,981. The project is anticipated to be
funded from proceeds of the Bonds, payments from CORE (Community Office of Resource
Page I of 3
completed under these approved parameters the offering will be cancelled and we will return to
Council with alternatives.
Attached to the ordinance is a draft of the preliminary official statement (POS). It contains
information related to this offering for investors to consider when buying the bonds.
ALTERNATIVES: Substantial commitments to completion of this project have already been
initiated. Alternatives at this stage would be to cancel the project or to make dramatic changes to
the capital plan to fund this on a pay as you go basis. Neither of these are recommended or
considered as very viable alternatives.
Page 3 of 3
ORDINANCE N0.~3(SERIES OF 2008)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF
ASPEN, COLORADO, OF ITS GENERAL OBLIGATION ELECTRIC
UTILITY BONDS, SERIES 2008, FOR THE PURPOSES SET FORTH IN THE
BALLOT QUESTION AUTHORIZING SUCH BONDS; PROVIDING FOR
THE PAYMENT OF SUCH BONDS FROM ELECTRIC UTILITY FEES AND
TO THE EXTENT CITY COUNCIL DETERMINES THAT THE REVENUES
PROJECTED TO BE AVAILABLE FROM SUCH FEES WILL BE
INSUFFICIENT TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE
COVENANTS OF THIS ORDINANCE OR OTHER INSTRUMENTS
GOVERNING SUCH DEBT IN ANY YEAR FROM THE PROCEEDS OF AD
VALOREM PROPERTY TAXES; PROVIDING FOR THE LEVY OF AD
VALOREM PROPERTY TAXES FOR THE PAYMENT OF SUCH BONDS;
PROVIDING THE FORM OF SUCH BONDS AND OTHER DETAILS WITH
RESPECT TO SUCH BONDS AND THE PAYMENT THEREOF;
APPROVING OTHER DOCUMENTS RELATING TO SUCH BONDS; AND
DECLARING AN EMERGENCY.
RECITALS
WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in Section 1 herein, the "Charter")
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter maybe granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, the City is authorized by Section 10.1 of the Charter to borrow moneys and
to issue general obligation bonds to evidence such borrowing, subject to the approval of a
question proposing their issuance at a general or special election by a majority of registered
electors of the City voting thereon; and
WHEREAS, at an election called on November 6, 2007, the City submitted the following
question (the "Ballot Question") to the registered electors of the City for approval:
SHALL CITY OF ASPEN DEBT BE INCREASED BY UP TO $5,500,000, WITH A
MAXIMUM REPAYMENT COST OF $10,780,000 BY THE ISSUANCE OF
GENERAL OBLIGATION BONDS FOR THE PURPOSE OF CONSTRUCTING AND
EQUIPPING A NEW HYDROELECTRIC FACILITY ON CASTLE CREEK, WHICH
4843-1239-0402.5
DEBT SHALL BE PAYABLE FROM (1) ELECTRIC UTILITY FEES AND (2) TO
THE EXTENT THE CITY COUNCIL DETERMINES THAT THE REVENUES
PROJECTED TO BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL
BE INSUFFICIENT TO PAY THE PRINCIPAL OF, PREMIiJM, IF ANY, AND
INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE
COVENANTS OF THE ORDINANCE OR OTHER INSTRUMENTS GOVERNING
SUCH DEBT IN ANY YEAR, FROM THE TAXES DESCRIBED BELOW; SHALL
CITY TAXES BE INCREASED BY UP TO $359,128 ANNUALLY IN ANY YEAR
BY THE LEVY OF AD VALOREM PROPERTY TAXES, WITHOUT LIMITATION
AS TO RATE OR AMOUNT OR ANY OTHER CONDITION, TO PAY THE
PRINCIPAL OF, PREMNM, IF ANY, AND INTEREST ON SUCH DEBT AND TO
OTHERWISE COMPLY WITH THE COVENANTS OF THE ORDINANCE OR
OTHER INSTRUMENTS GOVERNING SUCH DEBT IF AND TO THE EXTENT
THE CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO BE
AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL NOT BE
SUFFICIENT THEREFOR; SHALL SUCH DEBT MATURE, BE SUBJECT TO
REDEMPTION, WITH OR WITHOUT PREMNM, AND BE ISSUED, DATED AND
SOLD AT SUCH TIME OR TIMES, AT SUCH PRICES (AT, ABOVE OR BELOW
PAR) AND IN SUCH MANNER AND WITH SUCH TERMS, NOT INCONSISTENT
HEREWITH, AS THE CITY COUNCIL MAY DETERMINE; AND SHALL THE
CITY BE AUTHORIZED TO COLLECT, RETAIN AND EXPEND ALL OF [THE
REVENUES OF SUCH TAXES, THE PROCEEDS OF SUCH BONDS AND THE
EARNINGS THEREON] IN 2007 AND EACH SUBSEQUENT YEAR,
NOTWITHSTANDING THE LIMITATIONS OF ARTICLE X, SECTION 20 OF THE
COLORADO CONSTITUTION (TABOR), SECTION 29-1-301, COLORADO
REVISED STATUTES, OR ANY OTHER LAW?
WHEREAS, a majority of the registered electors of the City voting on the Ballot
Question at the November 6, 2007 election voted in favor of the Ballot Question; and
WHEREAS, the City Council of the City (the "City Council") has determined that it is in
the best interests of the City and its residents to issue the City of Aspen, Colorado, General
Obligation Electric Utility Bonds, Series 2008 (the "Series 2008 Bonds" or the "Bonds"), for the
purposes of constructing and equipping a new hydroelectric facility on Castle Creek to become
part of the City's Electric Utility system (as defined herein, the "Project") and paying the costs of
issuance of the Bonds; and
WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus &
Company, Incorporated, of Denver, Colorado, to purchase the Bonds upon specified terms and
conditions, the final terms and conditions of which are to be set forth in the Bond Purchase
Agreement in accordance with the Sale Certificate, and, after consideration, the City Council has
determined that the negotiated sale of the Bonds, subject to the parameters set forth herein, to
said company is to the best advantage of the City; and
WHEREAS, pursuant to the Ballot Question, the City Council intends to pay the
principal of, premium, if any, and interest on the Bonds from: (a) customer usage fees and any
other fees received from the operation of the City's Electric Utility system on deposit in the
4843-1239-0402.5 2
City's Electric Funds (as defined herein) and available for the payment of the Bonds (as more
particularly defined herein, "Available Electric Utility Fees"); and (b) to the extent Available
Electric Utility Fees are not sufficient, ad valorem property taxes authorized in the Ballot
Question; and
WHEREAS, notwithstanding the City's intention to pay amounts due on the Bonds from
Available Electric Utility Fees and ad valorem property taxes authorized in the Ballot Question,
the Bonds are general obligations of the City and the full faith and credit of the City are pledged
to their payment; and
WHEREAS, no member of the City Council has a potential conflict of interest in
connection with the authorization, issuance, sale or use of proceeds of the Bonds; and
WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, there is a need for issuing the Bonds in a timely manner in order to take
advantage of existing market conditions and obtain the greatest savings to the City's inhabitants,
thus freeing up City revenues which can be used for the purposes of preserving public property,
health, peace and safety; and
WHEREAS, this Ordinance is being adopted to authorize the issuance, sale and delivery
of the Bonds, to provide for the payment of the Bonds and to provide the details of the Bonds;
and
WHEREAS, there has been presented to the City Council, among other things,
substantially final forms of (a) the Preliminazy Official Statement, (b) Paying Agent Agreement,
(c) the Bond Purchase Agreement (subject to completion in accordance with the terms of the
Sale Certificate), and (d) the Continuing Disclosure Undertaking; and
WHEREAS, the City Council desires, as provided in the Supplemental Public Securities
Act, Part 2 of Article 57 of Title 11 of the Colorado Revised Statutes, as amended, to delegate
the authority to the Mayor of the City, or to the Mayor Pro Tem of the City, in the Mayor's
absence, to determine certain provisions of the Bonds to be set forth in the Sale Certificate, in
accordance with the provisions of this Ordinance.
NOW, THEREFORE, BE IT ORDAINED, BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO, that:
Section 1. Definitions. The following terms shall have the following meanings for
purposes of this Ordinance:
"Acts" means, collectively, the State Constitution, the Charter, and Part 2 of Article 57 of
Title 11, Colorado Revised Statutes, as amended.
"Available Electric Utility Fees" means, as of any particular date of determination, all
Electric Utility Fees and earnings thereon on deposit in the City's Electric Funds and available
for payment of the principal of, premium, if any, and interest on the Bonds after taking into
4843-1239-0402.5 3
account all administrative, operation and maintenance expenses of the City payable from the
Electric Funds, as determined by the City.
"Ballot Question" means the ballot question approved by City voters on November 6,
2007, defined as such in the preambles hereto.
"Bond Account" means the City of Aspen, Colorado, General Obligation Electric Utility
Bonds Series 2008 Bond Account" created pursuant to the Section hereof entitled "Creation of
Accounts."
"Bond CounseC' means (i) as of the date of issuance of the Bonds, Kutak Rock LLP, and
(ii) as of any other date, Kutak Rock LLP or such other attorneys selected by the City with
nationally recognized expertise in the issuance of municipal bonds.
"Bond Obligation" means, as of any date, the principal amount of Bonds then
Outstanding.
"Bond Purchase Agreement" means the agreement between the City and the Underwriter
concerning the purchase of the Bonds by the Underwriter
"Bonds" means the Series 2008 Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law or executive order to be
closed for business.
"Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" is defined in the recitals hereof.
"City Council" means the City Council of the City, and any successor body.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Bonds or the use of proceeds thereof,
unless the context clearly requires otherwise.
"Continuing Disclosure I7ndertaking" means the undertaking to facilitate compliance
with Rule 15c2-12 under the Securities Exchange Act of 1934 in substantially the form appended
to the Preliminary Official Statement.
"Dated Date" means the original dated date for the Bonds as established in the Sale
Certificate.
"Defeasance Securities" means cash funds or bills, certificates of indebtedness, notes,
bonds or similar securities which are direct non-callable obligations of the United States of
America or which are fully and unconditionally guaranteed as to the timely payment of principal
4843-1239-0402.5 4
and interest by the United States of America, to the extent such investments aze Permitted
Investments.
"DTC" means The Depository Trust Company, New York, New York, and its successors
in interest and assigns.
"DTC Letter of Representations" means the Blanket Letter of Representations dated
July 26, 1999 between the City and DTC with respect to the book-entry registration system for
the Bonds.
"Electric Funds" means the City's existing Electric Enterprise Fund and Ruedi
Hydroelectric Enterprise Fund (also sometimes referred to as the Electric Fund and Ruedi
Hydroelectric Fund), and any other fund created by City Council for the purpose of accounting
for revenues received in connection with its operation of electric utilities (including, but not
limited to, any fund created to account for revenues relating to the Hydroelectric Facility on
Castle Creek).
"Electric Utility Fees" means customer usages fees and any other fees received by the
City as a result of the City's operation of its Electric Utility.
"Event of Default" means any one or more of the events set forth in the Section hereof
entitled "Events of Default."
"Interest Payment Date" means each June 1 and December 1, commencing December 1,
2008 or such other dates as established in the Sale Certificate.
"Official Statement" means the final Official Statement relating to the Bonds approved in
the Section hereof entitled "Approval of Related Documents."
"Ordinance" means this Ordinance, including any amendment or supplement hereto.
"Outstanding" means, as of any date, all Bonds, except the following:
(a) Any Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
(b) Any Bond held by or on behalf of the City;
(c) Any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
of, premium, if any, and interest on such Bond to the date of maturity or prior redemption
thereof, shall have theretofore been deposited in trust for such purpose in accordance with
the Section hereof entitled "Defeasance"; and
(d) Any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
4843-1239-0402.5 5
"Owner" means the Person or Persons in whose name or names a Bond is registered on
the registration books maintained by the Paying Agent pursuant hereto.
"Paying Agent" means Wells Fargo Bank, N.A., Denver, Colorado, or any successor
thereto or assignee thereof approved by the City.
"Paying Agent Agreement" means an agreement with the Paying Agent concerning duties
and obligations of the Paying Agent with respect to the Bonds.
"Permitted Investments" means any investment in which funds of the City may be
invested under the laws of the State at the time of such investment.
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
"Preliminary Official Statement" means the Preliminary Official Statement relating to the
Bonds and the City.
"Project" means any purpose for which proceeds of the Bonds may be expended under
the Charter, the Ballot Question and any provision of any City ordinance or provision of the
City's municipal code governing the use of the Electric Utility Fees and the ad valorem property
taxes authorized in the Ballot Question, including, but not limited to, constructing and equipping
a new hydroelectric facility on Castle Creek and paying the costs of issuance of the Bonds.
"Rebate Account" means the City of Aspen General Obligation Electric Utility Bonds
Series 2008 Rebate Account created in the Section hereof entitled "Federal Income Tax
Covenants."
"Record Date" means, with respect to each Interest Payment Date, the fifteenth day of the
month preceding the month (whether or not such day is a Business Day) in which such Interest
Payment Date occurs.
"Sale Certificate" means the certificate executed by the Sale Delegate, under the
authority delegated pursuant to this Ordinance, including, among other things, the aggregate
principal amount of the Bonds, the prices at which the Bonds will be sold, interest rates and
annual maturing principal for the Bonds, as well as the dates on which the Bonds may be
redeemed and the redemption prices therefore.
"Sale Delegate" means the Mayor of the City or the Mayor Pro Tem in the absence of the
Mayor.
"Series 2008 Bonds" means the City of Aspen, Colorado, General Obligation Electric
Utility Bonds, Series 2008, authorized in the Section hereof entitled "Authorization and Purpose
of Bonds."
"State" means the State of Colorado.
4843-1239-0402.5 6
"Tax Letter of Instructions" means the Tax Letter of Instructions, dated the date on which
the Bonds are originally issued and delivered to the City by Bond Counsel, as such instructions
maybe superseded or amended in accordance with their terms.
"Underwriter" means Stifel Nicolaus & Company, Incorporated, the original purchaser of
the Bonds.
Section 2. Authorization and Purpose of Bonds. Pursuant to and in accordance with
the Acts and the Ballot Question, the City hereby authorizes, and directs that there shall be
issued: (a) the "City of Aspen, Colorado, General Obligation Electric Utility Bonds,
Series 2008," in the aggregate principal amount set forth in the Sale Certificate pursuant to, and
subject to the limitations set forth in, the Section hereof entitled "Delegation and Pazameters,"
for the purpose of financing the Project.
Section 3. Bond Details.
(a) Registered Form, Denominations, Original Dated Date and Numbering.
The Bonds shall be issued as fully registered bonds, shall be dated as of the Dated Date
and shall be registered in the names of the Persons identified in the registration books
maintained by the Paying Agent pursuant hereto. The Bonds shall be issued in
denominations of $5,000 in principal amount or any integral multiple thereof. The Bonds
shall be consecutively numbered, beginning with the number one, preceded by the letter
«R „
(b) Maturity Dates, Principal Amounts and Interest Rates. The Bonds shall
mature on December 1 of the yeazs and in the amounts set forth in the Sale Certificate,
and shall bear interest at the rates per annum (calculated based on a 360-day year of
twelve 30-day months) set forth in the Sale Certificate.
(c) Accrual and Dates of Payment of Interest. Interest on the Bonds shall
accrue at the rates set forth in the Sale Certificate from the later of the Dated Date or the
latest Interest Payment Date (or in the case of defaulted interest, the latest date) to which
interest has been paid in full and shall be payable on each Interest Payment Date.
(d) Manner and Form of Payment. Principal of each Bond shall be payable
to the Owner thereof upon presentation and surrender of such Bond at the principal office
of the Paying Agent in the city identified in the definition of Paying Agent in the Section
hereof entitled "Definitions" or at such other office of the Paying Agent designated by the
Paying Agent for such purpose. Interest on each Bond shall be payable by check or draft
of the Paying Agent mailed on each Interest Payment Date to the Owner thereof as of the
close of business on the corresponding Record Date; provided that interest payable to any
Owner may be paid by any other means agreed to by such Owner and the Paying Agent
that does not require the City to make moneys available to the Paying Agent eazlier than
otherwise required hereunder or increase the costs borne by the City hereunder. All
payments of the principal of and interest on the Bonds shall be made in lawful money of
the United States of America.
4843-1239-0402.5 7
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Bonds shall be delivered only in book-entry form registered in the name of Cede &
Co., as nominee of DTC, acting as securities depository of the Bonds and principal of and
interest on the Bonds shall be paid by wire transfer to DTC; provided, however, if at any
time the Paying Agent determines, and notifies the City of its determination, that DTC is
no longer able to act as, or is no longer satisfactorily performing its duties as, securities
depository for the Bonds, the Paying Agent may, at its discretion, either (i) designate a
substitute securities depository for DTC and reregister the Bonds as directed by such
substitute securities depository or (ii) terminate the book-entry registration system and
reregister the Bonds in the names of the beneficial owners thereof provided to it by DTC.
Neither the City nor the Paying Agent shall have any liability to DTC, Cede & Co., any
substitute securities depository, any Person in whose name the Bonds are reregistered at
the direction of any substitute securities depository, any beneficial owner of the Bonds or
any other Person for (A) any determination made by the Paying Agent pursuant to the
proviso at the end of the immediately preceding sentence or (B) any action taken to
implement such determination and the procedures related thereto that is taken pursuant to
any direction of or in reliance on any information provided by DTC, Cede & Co., any
substitute securities depository or any Person in whose name the Bonds are reregistered.
Section 4. Redemption of Bonds Prior to Maturity.
(a) Optional Redemption. The Bonds, if any, specified in the Sale Certificate
shall be subject to redemption prior to maturity, at the option of the City, as a whole or in
part in integral multiples of $5,000, and if in part in such order of maturities as the City
shall determine and by lot within a maturity, on such dates, if any, and at such prices, as
set forth in the Sale Certificate.
(b) Mandatory Sinking Fund Redemption. All or any principal amount of
the Bonds maybe subject to mandatory sinking fund redemption by lot on December 1 of
the years and in the principal amounts specified in the Sale Certificate, at a redemption
price equal to the principal amount thereof (with no redemption premium), plus accrued
interest to the redemption date.
At its option, to be exercised on or before the forty-fifth day next preceding each
sinking fund redemption date, the City may (i) deliver to the Paying Agent for
cancellation any Bonds with the same maturity date as the Bonds subject to such sinking
fund redemption and (ii) receive a credit in respect of its sinking fund redemption
obligation for any Bonds with the same maturity date as the Bonds subject to such
sinking fund redemption which prior to such date have been redeemed (otherwise than
through the operation of the sinking fund) and cancelled by the Paying Agent and not
theretofore applied as a credit against any sinking fund redemption obligation. Each
Bond so delivered or previously redeemed shall be credited by the Paying Agent at the
principal amount thereof to the obligation of the City on such sinking fund redemption
date, and the principal amount of Bonds to be redeemed by operation of such sinking
fund on such date shall be accordingly reduced.
4843-1239-0402.5 8
(c) Redemption Procedures. Notice of any redemption of Bonds shall be
given by the Paying Agent by sending a copy of such notice by first-class, postage prepaid
mail, not less than 30 days prior to the redemption date, to the Owner of each Bond being
redeemed. Such notice shall specify the number or numbers of the Bonds so to be
redeemed (if redemption shall be in part) and the redemption date. If any Bond shall have
been duly called for redemption and if, on or before the redemption date, there shall have
been deposited with the Paying Agent in accordance with this Ordinance funds sufficient
to pay the redemption price of such Bond on the redemption date, then such Bond shall
become due and payable at such redemption date, and from and after such date interest
will cease to accrue thereon. Failure to deliver any redemption notice or any defect in any
redemption notice shall not affect the validity of the proceeding for the redemption of
Bonds with respect to which such failure or defect did not occur. Any Bond redeemed
prior to its maturity by prior redemption or otherwise shall not be reissued and shall be
cancelled.
Section 5. Creation of Bond Account. There is hereby created the "City of Aspen,
Colorado, General Obligation Electric Utility Bonds Series 2008 Bond Account" (the "Bond
Account"). Moneys on deposit in the Bond Account shall be applied solely to the payment of the
principal of and interest on the Bonds and for no other purpose until the Bonds, including
principal and interest, are fully paid, satisfied and discharged.
Section 6. Delivery of Bonds and Application of Bond Proceeds. Upon payment to
the City of the purchase price of the Bonds in accordance with the Bond Purchase Agreement,
the Bonds shall be delivered to or as directed by the Underwriter and the proceeds received by
the City from the sale of the Bonds shall be applied as a supplemental appropriation by the City
for the payment of costs of issuance of the Bonds and as follows: (a) to the Bond Account, for
accrued interest (if any) on the Bonds, the amount (if any) designated in the Sale Certificate; and
(b) the remainder shall be applied by the City to costs of the Project.
Section 7. Security for the Bonds.
(a) Genera[ Obligations. The Bonds shall be general obligations of the City,
payable from the ad valorem property taxes levied by the City pursuant to this Section,
other moneys transferred to or deposited into the Bond Account pursuant to this
Ordinance and other moneys made available for the payment of the principal of,
premium, if any, and interest on the Bonds pursuant to subsection (f) of this Section, in
addition to the Available Electric Utility Fees transferred to the Bond Account as
provided in subsection (b) of this Section. The full faith and credit of the City are pledged
for the punctual payment of the principal of, premium, if any, and interest on the Bonds.
(b) Transfers from Available Electric Utility Fees. On or before each date on
which the City is required to deposit amounts with the Paying Agent pursuant to
subsection (h) of this Section, the City shall transfer Available Electric Utility Fees (as
determined by the City on the date of such transfer) to the Bond Account in an amount
equal to the lesser of: (i) the principal of, premium, if any, and interest on the Bonds due
to be so deposited on such date, less any other moneys then on deposit in the Bond
4843-1239-0402.5 9
Account to be transferred to the Paying Agent on such date; or (ii) the total of all
Available Electric Utility Fees then on deposit in the Electric Funds.
(c) Levy of Ad Valorem Taxes. For the purpose of paying the principal of,
premium, if any, and interest on the Bonds when due, respectively, the City Council
shall, before such time provided for by law for levying other City taxes, annually
determine a rate of levy for general ad valorem taxes, without limitation as to rate or
amount, on all of the taxable property within the City, that will be sufficient, when
combined with amounts then on deposit in the Bond Account and the amounts projected
to be deposited to the Bond Account in the immediately succeeding calendar year from
Available Electric Utility Fees pursuant to subsection (b) of this Section, and from other
moneys pursuant to subsection (f) of this Section, to pay the principal of, premium, if
any, and interest on the Bonds when due, respectively, whether at maturity or upon
eazlier redemption, in the immediately succeeding calendar year. Annually, at the time of
certification of the general ad valorem taxes pursuant to this subsection, the City Council
shall make specific findings with respect to the Available Electric Utility Fees projected
for the immediately succeeding calendaz yeaz and all other amounts described in the
preceding sentence projected to be transferred to the Bond Account in the immediately
succeeding calendar yeaz or then on deposit therein. The City Council shall, in certifying
annual levies for general ad valorem taxes, take into account the maturing indebtedness
of the Bonds for the ensuing yeaz, deficiencies and defaults of prior years and any
reimbursement to be made pursuant to subsections (d) or (f) of this Section and shall
make ample provision for the payment thereof. The general ad valorem taxes levied
pursuant to this subsection, when collected, shall be deposited into the Bond Account.
(d) Covenant Upon Deficiency in Bond Account. Notwithstanding anything
else contained herein, the City hereby irrevocably covenants and agrees that, in the event
that amounts on deposit in the Bond Account on any date on which the City is required to
deposit amounts with the Paying Agent pursuant to subsection (h) of this Section is less
than the amount sufficient to pay the principal of premium, if any, and interest on the
Bonds on the corresponding Interest Payment Date, the City Council shall immediately
transfer previously appropriated moneys in the amount of such deficiency from the
general fund or any other legally available fund of the City to the Bond Account for the
payment of such amounts, and shall promptly pass and adopt supplemental or emergency
ordinances or resolutions as aze required to effectuate such transfer and use. Thereafter,
such appropriations and transfers shall continue to be made in such amounts and with
sufficient frequency to assure that the moneys on deposit in the Bond Account shall be
sufficient to pay the principal of, premium, if any, and interest on the Bonds when due.
Upon the next succeeding levy of ad valorem property taxes for the Bonds pursuant to
subsection (c) of this Section, the taxes levied pursuant thereto shall include amounts
sufficient to reimburse the fund from which amounts were transferred pursuant to this
subsection and such reimbursement shall be made and appropriation made therefor upon
the collection of such taxes.
(e) Levy of Additional Ad Valorem Taxes. If the moneys on deposit in the
Bond Account, including, but not limited to, moneys of the City deposited therein
pursuant to subsections (b), (d) and (f) of this Section, aze not sufficient to pay punctually
4843-1239-0402.5 1O
the annual installments on the contracts or bonds of the City, and interest thereon, and to
pay defaults and deficiencies, the City Council shall make such additional levies of taxes
as may be necessary for such purposes, and such taxes shall be made and continue to be
levied until the indebtedness is fully paid. The general ad valorem taxes levied pursuant
to this subsection, when collected, shall be deposited into the Bond Account.
(f) Use or Advance of Other Legally Available Moneys. Nothing herein
shall be interpreted to prohibit or limit the ability of the City to use legally available
funds of the City other than moneys required by this Ordinance to be transferred to or
deposited into the Bond Account to pay all or any portion of the principal of, premium, if
any, or interest on the Bonds. If and to the extent such other legally available moneys are
used to pay the principal of, premium, if any, or interest on the Bonds, the City may, but
shall not be required to, (i) reduce the amount of taxes levied for such purpose pursuant
to subsection (c) of this Section or (ii) use proceeds of taxes levied pursuant to subsection
(c) of this Section to reimburse the fund or account from which such other legally
available moneys are withdrawn for the amount withdrawn from such fund or account to
pay the principal of or interest on the Bonds. If the City selects alternative (ii) in the
immediately preceding sentence, the taxes levied pursuant to subsection (c) of this
Section shall include amounts sufficient to fund the reimbursement.
(g) Appropriation and Budgeting of Proceeds of Moneys. All amounts
transferred to or deposited into the Bond Account pursuant to this Ordinance aze hereby
appropriated for that purpose, and all amounts required to pay the principal of and
interest on the Bonds when due, respectively, in each yeaz shall be included in the annual
budget and appropriation ordinance to be adopted and passed by the City Council for
such year.
(h) Deposit of Moneys to Pay Bonds with, and Payment of Bonds By,
Paying Agent. No later than the Business Day immediately preceding each Interest
Payment Date, the City, from moneys on deposit in the Bond Account or other moneys
made legally available pursuant to subsection (f) of this Section, shall deposit moneys
with the Paying Agent in an amount sufficient to pay the principal of premium, if any,
and interest on the Bonds on such date. The Paying Agent shall use the moneys so
deposited with it to pay the principal of, premium, if any, and interest on the Bonds when
due.
Section 8. Form of Bonds. The Bonds shall be in substantially the form set forth in
Appendix A hereto with such changes thereto, not inconsistent herewith, as may be necessary or
desirable and approved by the officials of the City executing the same (whose manual or
facsimile signatures thereon shall constitute conclusive evidence of such approval). All
covenants, statements, representations and agreements contained in the Bonds are hereby
approved and adopted as the covenants, statements, representations and agreements of the City.
Although attached as an appendix for the convenience of the reader, Appendix A is an integral
part of this Ordinance and is incorporated herein as if set forth in full in the body of this
Ordinance.
4843-1239-04025 11
Section 9. Execution of Bonds. The Bonds shall be executed in the name and on behalf
of the City with the manual or facsimile signature of the Mayor or Mayor Pro Tem of the City,
shall bear a manual or facsimile of the seal of the City and shall be attested by the manual or
facsimile signature of the City Clerk or Deputy or Assistant City Clerk, all of whom are hereby
authorized and directed to prepare and execute the Bonds in accordance with the requirements
hereof. Should any officer whose manual or facsimile signature appears on the Bonds cease to
be such officer before delivery of any Bond, such manual or facsimile signature shall
nevertheless be valid and sufficient for all purposes. When the Bonds have been duly executed,
the officers of the City are authorized to, and shall, deliver the Bonds to the Paying Agent for
authentication. No Bond shall be secured by or entitled to the benefit of this Ordinance, or shall
be valid or obligatory for any purpose, unless the certificate of authentication of the Paying
Agent has been manually executed by an authorized signatory of the Paying Agent. The
executed certificate of authentication of the Paying Agent upon any Bond shall be conclusive
evidence, and the only competent evidence, that such Bond has been properly authenticated and
delivered hereunder.
Section 10. Temporary Bonds. Until Bonds in definitive form are ready for delivery,
the City may execute, and upon the request of the City, the Paying Agent shall authenticate and
deliver, subject to the provisions, limitations and conditions set forth herein, one or more Bonds
in temporary form, whether printed, typewritten, lithographed or otherwise produced,
substantially in the forms of the definitive Bonds, with appropriate omissions, variations and
insertions, and in authorized denominations. Until exchanged for Bonds in definitive form such
Bonds in temporary form shall be entitled to the benefits and security of this Ordinance. Upon
the presentation and surrender of any Bond in temporary form, the City shall, without
unreasonable delay, prepare, execute and deliver to the Paying Agent and the Paying Agent shall
authenticate and deliver, in exchange therefor, a Bond or Bonds of the same series in definitive
form. Such exchange shall be made by the Paying Agent without making any charge therefor to
the registered owner of such Bond in temporary form.
Section 11. Registration of Bonds in Registration Books Maintained by Paying
Agent. The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Bonds shall be recorded. The person in whose name any Bond shall be registered
on such registration book shall be deemed to be the absolute owner thereof for all purposes,
whether or not payment on any Bond shall be overdue, and neither the City nor the Paying Agent
shall be affected by any notice or other information to the contrary.
Section 12. Transfer and Exchange of Bonds. The Bonds may be transferred or
exchanged at the principal office of the Paying Agent in the city identified in the definition of
Paying Agent in the Section hereof entitled "Definitions," for a like aggregate principal amount
of Bonds of other authorized denominations of the same type, maturity and interest rate, upon
payment by the transferee of a transfer fee, any tax or governmental charge required to be paid
with respect to such transfer or exchange and any cost of printing bonds in connection therewith.
Upon surrender for transfer of any Bond, duly endorsed for transfer or accompanied by an
assignment duly executed by the Owner or his or her attorney duly authorized in writing, the
City shall execute and the Paying Agent shall authenticate and deliver in the name of the
transferee a new Bond. Notwithstanding any other provision hereof, the Paying Agent shall not
be required to transfer any Bond (a) which is scheduled to be redeemed in whole or in part
4843-1239-0402.5 12
between the Business Day immediately preceding the mailing of the notice of redemption and
the redemption date or (b) between the Record Date for any Interest Payment Date for such Bond
and such Interest Payment Date.
Section 13. Replacement of Lost, Destroyed or Stolen Bonds. If any Bond shall
become lost, apparently destroyed, stolen or wrongfully taken, it may be replaced in the form and
tenor of the lost, destroyed, stolen or taken Bond and the City shall execute and the Paying Agent
shall authenticate and deliver a replacement Bond upon the Owner firrnishing, to the satisfaction
of the Paying Agent: (i) proof of ownership (which shall be shown by the registration books of
the Paying Agent), (ii) proof of loss, destruction or theft, (iii) an indemnity to the City and the
Paying Agent with respect to the Bond lost, destroyed or taken, and (iv) payment of the cost of
preparing and executing the new Bond.
Section 14. Investments. Moneys on deposit in the Bond Account and the Rebate
Account and any moneys held by the Paying Agent with respect to the Bonds shall be invested in
Permitted Investments, provided that the investment of such moneys shall be subject to any
applicable restrictions set forth in the Tax Letter of Instructions and the tax compliance
certificate delivered by the City in connection with the issuance of the Bonds that describes the
City's expectations regarding the use and investment of proceeds of the Bonds and other
moneys. Except as otherwise provided above, earnings from the investment of moneys
separately accounted for to pay principal of, premium, if any, and interest on the Bonds and
moneys separately accounted for to pay costs of the Project shall be transferred to the Rebate
Account in the amounts and at the times required to fund the Rebate Account in accordance with
the Tax Letter of Instructions and all other earnings from the investment of moneys shall be
retained in the account in which earned.
Section 15. Various Findings, Determinations, Declarations and Covenants. The
City Council, having been fully informed of and having considered all the pertinent facts and
circumstances, hereby finds, determines, declares and covenants with the Owners of the Bonds
that:
(a) voter approval of the Ballot Question was obtained in accordance with all
applicable provisions of law;
(b) it is in the best interest of the City and its residents that the Bonds be
authorized, sold, issued and delivered at the time, in the manner and for the purposes
provided in this Ordinance;
(c) the issuance of the Bonds will not cause the City to exceed its debt limit
under the Charter or applicable State law; and
(d) the issuance of the Bonds and all procedures undertaken incident thereto
are in full compliance and conformity with all applicable requirements, provisions and
limitations prescribed by the Constitution and laws of the State and the City, including
the Charter, and all conditions and limitations of the Charter and other applicable law
relating to the issuance of the Bonds have been satisfied.
4843-1239-04025 13
Section 16. Federal Income Tax Covenants. For purposes of ensuring that the interest
on the Bonds is and remains excluded from gross income for federal income tax purposes, the
City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Bonds or any other funds of the City from whatever source derived,
directly or indirectly, to acquire any securities or obligations and shall not take or permit
to be taken any other action or actions, which would cause any Bond to bean "azbitrage
bond" within the meaning of Section 148 of the Code, or would otherwise cause the
interest on any Bond to be includible in gross income for federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the City on the
Bonds shall not be includible in gross income for federal income tax purposes under the
Code or any other valid provision of law. In particular, but without limitation, the City
represents, warrants and covenants to comply with the following rules unless it receives
an opinion of Bond Counsel stating that such compliance is not necessary: (i) gross
proceeds of the Bonds and the Project will not be used in a manner that will cause the
Bonds to be considered "private activity bonds" within the meaning of the Code; (ii) the
Bonds are not and will not become directly or indirectly "federally guazanteed"; and
(iii) the City will timely file an Internal Revenue Service Form 8038-G with respect to
the Bonds, which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Tax Letter of Instructions. The City will comply with the Tax Letter of
Instructions delivered to it on the date of issuance of the Bonds, including but not limited
by the provisions of the Tax Letter of Instructions regarding the application and
investment of Bond proceeds, the use of the Project, the calculations, the deposits to the
Rebate Account, the disbursements, the investments and the retention of records
described in the Tax Letter of Instructions; provided that, in the event the Tax Letter of
Instructions are superseded or amended by new Tax Letter of Instructions drafted by, and
accompanied by an opinion of, Bond Counsel stating that the use of the new Tax Letter
of Instructions will not cause the interest on the Bonds to become includible in gross
income for federal income tax purposes, the City will thereafter comply with the new Tax
Letter of Instructions.
(d) Rebate Account. There is hereby created the "City of Aspen, Colorado,
General Obligation Electric Utility Bonds Series 2008 Rebate Account" (the "Rebate
Account"). The Rebate Account shall be funded pursuant to the Section hereof entitled
"Investments" in the amounts and at the times provided in the Tax Letter of Instructions
from earnings from the investment of moneys on deposit in the Bond Account and
moneys separately accounted for to pay costs of the Project, from earnings on moneys on
deposit in the Rebate Account and other legally available moneys.
(e) Designation of Bonds as Qualified Tax-Exempt Obligations. The City
hereby designates the Bonds as qualified tax-exempt obligations within the meaning of
Section 265(b)(3) of the Code. The City covenants that the aggregate face amount of all
4843-1239-0402.5 14
tax-exempt obligations issued by the City, together with governmental entities which
derive their issuing authority from the City or are subject to substantial control by the
City, shall not be more than $10,000,000 during calendar year 2008. The City recognizes
that such tax-exempt obligations include notes, leases, loans and warrants, as well as
bonds. The City further recognizes that any bank, thrift institution or other financial
institution that owns the Bonds will rely on the City's designation of the Bonds as
qualified tax-exempt obligations for the purpose of avoiding the loss of 100% of any
otherwise available interest deduction attributable to such institution's tax-exempt
holdings.
Section 17. Defeasance. Any Bond shall not be deemed to be Outstanding hereunder if
it shall have been paid and cancelled or if Defeasance Securities shall have been deposited in
trust for the payment thereof (whether upon or prior to the maturity of such Bond, but if such
Bond is to be paid prior to maturity, the City shall have given the Paying Agent irrevocable
directions to give notice of redemption as required by this Ordinance, or such notice shall have
been given in accordance with this Ordinance). In computing the amount of the deposit
described above, the City may include the maturing principal of and interest to be earned on the
Defeasance Securities. If less than all the Bonds are to be defeased pursuant to this Section, the
City, in its sole discretion, may select which of the Bonds shall be defeased.
Section 18. Events of Default. Each of the following events constitutes an Event of
Default:
(a) Nonpayment of Principal or Interest. Failure to make any payment of
principal of or interest on the Bonds when due;
(b) Breach or Nonperformance of Duties. Breach by the City of any
material covenant set forth herein or failure by the City to perform any material duty
imposed on it hereunder and continuation of such breach or failure for a period of 60 days
after receipt by the Mayor of written notice thereof from the Paying Agent or from the
Owners of at least 10% of the aggregate amount of the Bond Obligation, provided that
such 60 day period shall be extended so long as the City has commenced and continues a
good faith effort to remedy such breach or failure;
(c) Bankruptcy or Receivership. An order of decree by a court of competent
jurisdiction declaring the City bankrupt under federal bankruptcy law or appointing a
receiver of all or any material portion of the City's assets or revenues is entered with the
consent or acquiescence of the City or is entered without the consent or acquiescence of
the City but is not vacated, discharged or stayed within 30 days after it is entered.
Section 19. Remedies for Events of Default.
(a) Remedies. Upon the occurrence and continuance of any Event of Default,
the Owners of not less than 25% of the aggregate amount of the Bond Obligation,
including, without limitation, a trustee or trustees therefor, may proceed against the City
to protect and to enforce the rights of the any Owners under this Ordinance by
mandamus, injunction or by other suit, action or special proceedings in equity or at law,
4843-1239-0402.5 15
in any court of competent jurisdiction: (i) for the payment of interest on any installment
of principal of any Bond that was not paid when due at the interest rate borne by such
Bond, (ii) for the specific performance of any covenant contained herein, (iii) to enjoin
any act that may be unlawful or in violation of any right of any Owner of any Bond,
(iv) for any other proper legal or equitable remedy or (v) any combination of such
remedies or as otherwise may be authorized by applicable law; provided, however, that
acceleration of any amount not yet due on the Bonds according to their terms shall not be
an available remedy. All such proceedings at law or in equity shall be instituted, had and
maintained for the equal benefit of all Owners of Bonds then Outstanding.
(b) Failure to Pursue Remedies Not a Release; Rights Cumulative. The
failure of any Owner of any Outstanding Bond to proceed in accordance with
subsection (a) of this Section shall not relieve the City of any liability for failure to
perform or carry out its duties under this Ordinance. Each right or privilege of any such
Owner (or trustee therefor) is in addition and is cumulative to any other right or privilege,
and the exercise of any right or privilege by or on behalf of any Owner shall not be
deemed a waiver of any other right or privilege of such Owner.
Section 20. Amendment of Ordinance.
(a) Amendments Permitted Without Notice to or Consent of Owners. The
City may, without the consent of or notice to the Owners of the Bonds, adopt one or more
ordinances amending or supplementing this Ordinance (which ordinances shall thereafter
become a part hereof) for any one or more or all of the following purposes:
(i) to cure any ambiguity or to cure, correct or supplement any defect
or inconsistent provision of this Ordinance;
(ii) to subject to this Ordinance or pledge to the payment of the Bonds
additional revenues, properties or collateral;
(iii) to institute or terminate abook-entry registration system for the
Bonds or to facilitate the designation of a substitute securities depository with
respect to such a system;
(iv) to maintain the then existing or to secure a higher rating of the
Bonds by any nationally recognized securities rating agency; or
(v) to make any other change that does not materially adversely affect
the Owners of the Bonds.
(b) Amendments Requiring Notice to and Consent of Owners. Except for
amendments permitted by subsection (a) of this Section, this Ordinance may only be
amended (i) by an ordinance of the City amending or supplementing this Ordinance
(which, after the consents required therefor, shall become a part hereof) and (ii) with the
written consent of the Owners of at least 66 2/3% of the aggregate amount of the Bond
Obligation; provided that any amendment that makes any of the following changes with
respect to any Bond shall not be effective without the written consent of the Owner of
4843-1239-0402.5 16
such Bond: (A) a change in the maturity of such Bond; (B) a reduction of the interest rate
on such Bond; (C) a change in the terms of redemption of such Bond; (D) a delay in the
payment of principal of, premium, if any, or interest on such Bond; (E) a reduction of the
Bond Obligation the consent of the Owners of which is required for an amendment to this
Ordinance; or (F) the establishment of a priority or preference for the payment of any
amount due with respect to any other Bond over such Bond.
(c) Procedure for Notifying and Obtaining Consent of Owners. Whenever
the consent of an Owner or Owners of Bonds is required under subsection (b) of this
Section, the City shall mail a notice to such Owner or Owners at their addresses as set
forth in the registration books maintained by the Paying Agent and to the Underwriter,
which notice shall briefly describe the proposed amendment and state that a copy of the
amendment is on file in the office of the City for inspection. Any consent of any Owner
of any Bond obtained with respect to an amendment shall be in writing and shall be final
and not subject to withdrawal, rescission or modification for a period of 60 days after it is
delivered to the City unless another time period is stated for such purpose in the notice
mailed pursuant to this subsection.
Section 21. Appointment and Duties of Paying Agent. The Paying Agent identified in
the Section hereof entitled "Definitions" is hereby appointed as paying agent, registrar and
authenticating agent for the Bonds unless and until the City removes it as such and appoints a
successor Paying Agent, in which event such successor shall automatically succeed to the duties
of the Paying Agent hereunder and its predecessor shall immediately turn over all its records
regarding the Bonds to such successor. The Paying Agent, by accepting its duties as such, agrees
to perform all duties and to take all actions assigned to it hereunder in accordance with the terms
hereof.
Section 22. Delegation and Parameters.
(a) The City Council hereby delegates to the Sale Delegate the authority to
determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of
this Section, subject to the applicable parameters set forth in subsection (c) of this
Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are
necessary or convenient to be set forth in the Sale Certificate and aze not inconsistent
with the parameters set forth in subsection (c) of this Section.
(b) The Sale Certificate shall set forth the following matters and other matters
permitted to be set forth therein pursuant to subsection (a) of this Section, but each such
matter must fall within the applicable parameters set forth in subsection (c) of this
Section:
(i) the date on which the Bonds will be issued;
(ii) the Dated Date of the Bonds and, if not the date of delivery of the
Bonds, the amount of proceeds of the Bonds constituting accrued interest to be
deposited into the Bond Account;
(iii) the aggregate principal amount of the Bonds;
4843-1239-0402.5 17
(iv) the principal amount of the Bonds maturing in each yeaz;
(v) the interest payment dates;
(vi) the rate ofinterest;
(vii) the prices at which the Bonds will be sold pursuant to the Bond
Purchase Agreement;
(viii) the Bonds which may be redeemed at the option of the City, the
dates upon which such optional redemption may occur, and the prices at which
such Bonds maybe optionally redeemed;
(ix) the principal amounts, if any, of Bonds subject to mandatory
sinking fund redemption, and the years in which such Bonds will be subject to
such redemption;
(c) The authority delegated to the Sale Delegate by this Section shall be
subject to the following parameters:
(i) in no event shall the Sale Delegate be authorized to execute the
Sale Certificate and Bond Purchase Agreement after the date that is 60 days after
the date of adoption of this Ordinance and in no event may the Bonds be issued
after such date, absent further authorization by the City Council;
(ii) the aggregate principal amount of the Bonds shall not exceed
$5,500,000;
(iii) the final maturity of the Bonds shall be no later than the date that is
30 years after the date of issuance of the Bonds; and
(iv) the net effective interest rate on the Bonds shall not exceed 5.25%.
Section 23. Authorization to Execute Documents. For a period of sixty days
following the adoption of this Ordinance, the City Council authorizes the Sale Delegate to
execute the Sale Certificate and to execute the Bond Purchase Agreement in accordance with the
provisions hereof. The Mayor or City Clerk, or any other duly authorized officer of the City,
shall, and they aze hereby authorized and directed to, take all actions necessary or appropriate to
effectuate the provisions of this Ordinance, including, but not limited to, the execution of the
Paying Agent Agreement, and the Continuing Disclosure Undertaking, in substantially the forms
presented to this meeting of the City Council, with such changes therein, if any, not inconsistent
herewith, as are approved by the City (which, once executed by the appropriate City official,
shall constitute conclusive evidence of approval of the City), a "Tax Compliance Certificate" or
similar certificate describing the City's expectations regarding the use and investment of
proceeds of the Bonds and other moneys and the use of the Project, an Internal Revenue Service
Form 8038-G with respect to the Bonds, and all other documents and certificates necessazy or
desirable to effectuate the issuance of the Bonds, the investment of proceeds of the Bonds and
the other transactions contemplated hereby. The execution by the Mayor or Mayor Pro Tem of
4843-1239-04025 18
the City or any other duly authorized officer of the City of any document authorized herein shall
be conclusive proof of the approval by the City of the terms thereof.
Section 24. Approval of Official Statement. The City Council hereby approves the
distribution and use of the Preliminary Official Statement relating to the Bonds in connection
with the offering of the Bonds and authorizes and directs the City staff to prepare a final Official
Statement for use in connection with the sale of the Bonds in substantially the form thereof
presented to the City Council at the meeting at which this Ordinance is adopted, with such
changes therein, if any, not inconsistent herewith, as are approved by the City Attorney of the
City. The Mayor or Mayor Pro Tem is hereby authorized and directed to execute the final
Official Statement.
Section 25. Application of Supplemental Act. The City Council specifically elects to
apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the
"Supplemental Act"), to the Bonds.
Section 26. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with
the authorization or issuance of the Bonds shall be commenced more than thirty days after the
authorization of the Bonds.
Section 27. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day, such payment, event or
action shall instead be made or occur on the next succeeding day that is a Business Day with the
same effect as if it was made or occurred on the date on which it was originally scheduled to be
made or occur.
Section 28. Ordinance Is Contract with Owners of Bonds and Irrepealable. After
the Bonds have been issued, this Ordinance shall be and remain a contract between the City and
the Owners of the Bonds and shall be and remain irrepealable until all amounts due with respect
to the Bonds shall be fully paid, satisfied and discharged and all other obligations of the City
with respect to the Bonds shall have been satisfied in the manner provided herein.
Section 29. Headings, Table of Contents and Cover Page. The headings to the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 30. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
4843-1239-0402.5 19
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 31. Repeal of Inconsistent Ordinances. All ordinances, or parts thereof, that
are in conflict with this Ordinance, are hereby repealed.
Section 32. Ratification of Prior Actions. All actions heretofore taken (not
inconsistent with the provisions of this Ordinance, the Charter, or the Ballot Question) by the
City Council or by the officers and employees of the City directed toward the issuance of the
Bonds for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 33. Headings, Table of Contents and Cover Page. The headings to the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
.not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 34. Recordation. A true copy of this Ordinance, as adopted by the City Council
of the City, shall be numbered and recorded, and its adoption and publication shall be
authenticated by the signatures of the Mayor and the City Clerk and by a certification of
publication.
Section 35. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal bond prices and interest rates and due to currently favorable interest rates and due to
the need to preserve public property, health, peace and safety, it is hereby declared that, in the
opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full
force and effect upon its passage.
4843-1239-0402.5 20
INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its regulaz meeting on _,
2008, as provided by the City's Charter and applicable law.
[SEAL] By
Mayor
Attest:
By
City Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED AS AN
EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF SUCH
FINAL PASSAGE by the City Council of the City of Aspen at its special meeting on _,
2008, as provided by the City's Charter and applicable law.
[SEAL] By
Mayor
Attest:
By
City Clerk
Published In:
Date of Publication
[signature page to bond ordinance]
4843-1239-0402.5 21
MEMORANDUM
TO: Mayor and City Council
FROM: Phil Overeynder, Public Works Director
CC: Randy Ready, Assistant City Manager
CC: Steve Barwick, City Manager
CC: Don Taylor, Finance Director
DATE OF MEMO: September 5, 2008
MEETING DATE: September 8, 2008
RE: Castle Creek Hydroelectric Facility -
Public Hearing for $5.5 Million General Obligation Bond
Issuance
SUMMARY: This memo includes details on the project budget and project permitting activities
for the Castle Creek Hydroelectric Facility. This information was requested by City Council
during first reading of the Ordinance and Official Statement.
DISCUSSION: The project budget as it currently stands is summarized below and in
Attachments A and B. The project permitting status is summarized in Attachment C.
Original Budget -July 27, 2007 Memo (Based on 2006 Feasibility Study)
$5.1 Million - Allocated to Hydro Project
.4 Million -- Did not include funds for Castle Creek Pipeline Repair
Allocated to water supply
$5.5 Million ~ -- Total Budget as of July, 2007
Budget Authorized at Bond Election (November 2007)
$5.5 Million
Page 1 of 2
Current Budget
$6,197,981 Million
Difference between Budget at Election and Current Budget
$ 400,000 CORE Grant (REMP funds)
$ 297,981 Transfer from Electric Fund (for electric system
Connection to grid)
$ 5,500,000 General Obligation Bond Issuance
$ 6,197,981 Total Budget as of September 2008
' Original budget totaling $5,468,560; difference due to rounding. Bonding amount
authorization rounded to nearest $100,000.
Attachment A =Castle Creek Hydroelectric Facility- Project Budget
Attachment B =Castle Creek Hydroelectric Facility -Actual Expenses and Encumbrances as of
September 2, 2008
Attachment C = Summary of Design & Permit Review for Castle Creek Energy Center
Page 2 of 2
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Attachment C
Summary of Design & Permit Review for Castle Creek Energy Center
Noise Studies
Produced film of compazable hydroelectric facilities across Colorado and aired film at two
neighborhood meetings. Retained Engineering Dynamics to conduct noise study. Completed
baseline survey of noise conditions at neighborhood sites. Identified turbine/generator noise
emissions and identified comparable unit for compazative noise survey. Developed azchitectural
plans with consideration for sensitive noise receptors. Engineering Dynamics will make
recommendations for architectural materials for noise suppression to ensure noise levels stay at
background conditions (in progress).
Architectural Desi¢n
Retained Reno Smith Architects to prepaze site plan, preliminary azchitectural design, and
landscape plan for Castle Creek Energy Center (building to house hydroelectric turbine and
generator, geo-exchange heating equipment, interpretative and historic displays). Plans were
reviewed at a neighborhood meeting held in March, 2008.
Engineering Desien
Retained McLaughlin Rincon Engineers to perform design work for turbine, penstock, tailrace,
and intake at Thomas Reservoir. Retained Exponential Engineers to perform design work for
electrical connection to City distribution system and specifications for generator and control
systems. Engineering team assisted in selection of turbine and generator equipment based on six
(6) bids received.
Hydrolo¢ic Studies
Retained Grand River Consultants to complete hydrologic studies of Castle and Maroon Creeks.
A hydrologic model was prepared to determine quantity of water available for the hydroelectric
plant. Detailed charts were completed showing streamflow conditions before and after
construction of the hydroelectric plant.
Aquatic Biology Studies
Retained Miller Ecological Associates to perform aquatic biology and water quality studies that
conform to the Federal Energy Regulatory Commission requirements for licensing. Began
consultative process with state and federal resource agencies and community organizations that
have direct knowledge or data pertaining to fishery resources and water quality. (See FERC
Licensing discussion).
Building Energy Efficiency
Retained Dan Richardson of SGM Engineering to provide design changes For building energy
efficiency.
Onen Space Land Exchange
Identified Millionaire Lode Property near base of Aspen Mountain as land exchange parcel to
satisfy open space requirements. Obtained Open Space Boazd concurrence on suitability of
property for open space as equal or greater value. Currently completing survey of parcel to
complete exchange.
Use of Right of Wav Across Marolt Ouen Space
The penstock (buried pipeline which conveys water from Thomas Reservoir to the Castle Creek
site) uses existing rights-of--way. A significant amount of the historic penstock uses a 20-foot
strip of land acquired for the original 1887 penstock route. Construction across this route will be
coordinated with open space requirements including vegetation protection and restoration
methods provided by the Pazks Department.
Coordination with Trail Realignment on Marolt Ooen Space
A portion of the penstock route near the Castle Creek Bridge will follow the Mazolt trail
alignment. The Pazks Department is redesigning the trail in this vicinity. Coordination of
construction activities for both projects is necessary to ensure that their disturbance azeas are
limited to those that can later be used for trail construction.
Coordination with Construction of Micro Hydro at Thomas Valve
The 2009 AMP requests funding for a micro hydro turbine at the "Thomas Valve" PRV
(pressure reducing valve) in order to capture unused energy from the potable water system as
water passes from a higher to a lower pressure zone. Installation of conduit to distribute this
electric power to City facilities will be coordinated during construction of the penstock to avoid
multiple excavations in the open space area.
Coordination of Construction of Electric Feed Lines to City Facilities
The "Express Feed" electric distribution line improvements bringing power from the AABC
substation of the City's electric distribution grid has been designed to be coordinated with the
electric system connections from the hydroelectric plant.
Coordination with Hospital Expansion-Geo Exchange
The Aspen Valley Hospital is designing an expansion that will more than double current floor
space and is evaluating energy efficiency measures including a geo exchange system. During
construction of the penstock route, additional polyethylene pipe will be installed in the trench in
order to convey the stored thermal energy from the waters used in the hydroelectric production.
FERC Licensing
Aspen applied fora "Declazation of Intention" from FERC to determine that reconstruction of
the historic Castle Creek Hydro plant predated the regulatory authority of FERC for this project.
This application was denied by FERC in February 2008. After consultation with FERC, Aspen
will apply for a conduit exemption for the facility. FERC will hold public hearings in Aspen on
the City's application. This is expected to occur in the fall of 2008. FERC will solicit input
from the public on the project impacts, (including hydrology, fisheries and water quality), from
the public and interested state and federal agencies. The scope of the aquatic studies will be
based on FERC's review of the public and agency comments. FERC may include conditions on
project operations, including the potential for additional fish screening at intakes if it is merited
by the consultative process.
Planning and Zoning Review
Retained Haas Land Planning to prepaze application for a PUD at the Castle Creek site based on
the preliminary plans prepazed by the architectural team. The date for P&Z review and a public
hearing on the building have yet to be scheduled.