HomeMy WebLinkAboutordinance.council.029-08ORDINANCE 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 1 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 Department, 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 fot 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 irrigation 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 heazing on the ordinance shall be held on the ~_ day
of 008, 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 _~~~~yg(18.
~//~
Mayor
Attest:
~~~ ~~~
City Clerk
FINALLY ADOPTED,
" 2008.
Attest:
PASSED AND APPROVED THIS ~~~ DAY OF
Mayor
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 l`1~ day ot~~e„,..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 BII..LY RAY EUBANKS AND BONNIE JEAN EUBANKS, whose address is I Toby
Lane, Aspen, Colorado 81611 (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: 1 Toby Lane.
WHEREAS, Owner has an existing single-family residence on the Subject Property; and
AS, 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 wafer 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 to form of 11/9))
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 aad 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:
I. Water Service to Prgject and Subject Prop. Upon completion of the water
transmission main 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 Transrrrission Main and Hy rant. 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 fire 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. o t harine. The parties agree that the City shall contribute up to $50,000 towards
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 aze less than $134,100, the City
shall contribute 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
~.'~. r inspection, and appropriate permanent location mazldngs and easements. (The foregoing costs are
a ~ collectively referred to as the "Certified Cost".) The City shall reimburse its contribution to Owner
g ~ within thirty days of receipt of the Certified Cost.
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p'uZ, ~ The City, at its own cost (estimated to be approximately $4, 000, which will not be included
~~ i in its $50,000 contribution), shall prepare as-built drawings of the completed Main, and, where
a °m necessary. ,records of survey of easements.
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°v = 4. Recoupment by Owner. The Certified Cost minus the City's contribution is defined
m m as the Owner's Contribution, and may be reimbursed to Owner (or Owner's successors and assigns)
m o as set forth in this pazagraph.
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~. ; m The parties aclrnowledge that property owners who presently receive water service from the
~ ~ ~ City may connect to the Main without additional charge, and that Owner shall not be entitled to
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m ~ recoup any portion of the Owner Contribution from such property owners.
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Water Servlca AOreement (revision to form of 11/93)
The parties also acknowledge 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 aze 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 Contribution
previously reimbursed pursuant to this pazagraph 4, shall be allocated
to the Other Owners who have previously connected to the Main and
made reimbursement according to this pazagraph.
(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 shaze in recoupment received from subsequent Other Owners
in proportion to their remaining unreimbursed payments to the Owner and earlier Other Owners.
In no event shalt Owner be entitled to recoup more than the Owner's Contribution; nor shal] any
Other Owner be permitted 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. ~~. m nt .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
n = 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
~ g = easements shall be of a size determined by the City to be reasonably necessary for the operation,
_=z x maintenance and repair of the Main and any other facilities to be located on such easement. Each
W 6 PAY shall be solely responsible for any injury or damages, including costs and attorneys' fees, to
_'~' m persons or property arising from its own negligent acts or omissions occumng on or resulting from
~' ~ its use or occupation of any easement premises. Nothing contained herein, however, shall constitute
~ ~ = 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~
e 6. Treated Water Service. Upon final installation and connection of the Main, the City
a 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
m ~ of this Agreement.
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wwrer .mrvlra Aareemen[ (revision to form oP 11/93)
The treated water to be delivered by the City pursuant to the terms of this Agreement may
be used for all lawful in-building municipal purposes, and for fire protection, swimming pools and the
normal and reasonable outside irrigation oftrees, lawns and gazdens. 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. Tip Fees - Computation and Payment• Scheduling of Tans. Since 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 Department shalt 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
~ all losses, claims, demands, damages, cases, causes of action or liabilities, of whatever sort, including
~'~ ~ reasonable attorneys fees as they aze incurred, which any indemnified party incurs as result or by
`y i virtue of any matter as to which indemnification is provided in this pazagraph. Nothing herein shall
U be deemed or constnred to waive or limit the City's governmental immunity in any way.
`g Y 10. Limitations on Provision of Water Service. This Agreement is only for the supply of
w ~ treated water service as herein described and no expansion of uses, connections, or water service
`~ m 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
. m m as provided herein.
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±~ m 11. S rvice inject to the City Charter. Codes. RtI-~, Reeylations and Policies. Owner
~~,~ and its successors in interest shall be bound by, and all water service provided hereunder shall be
`m ~ subject to, al] applicable provisions of the Charter and the Code, as well as all applicable rules,
~'~ ~ policies or regulations of the City now in effect or as may be hereafter adopted.
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Wader Service Agreement (revision [o form of 11/93)
12. Rules Reg_ardi/lg 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 Sunnlv. 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 on account of any failure to accurately anticipate availabihty ofwater supply or because
ofan actual failure ofwater supply due to inadequate runoff, poor quality, failure of infrastructure,
or other occurrence beyond the City's reasonable control,
14. No Guarantee of Water Quality. Quantity or Pressure. The City makes no promise
or guaantee 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.
15. 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. All notices required to be given shall be deemed given upon deposit in the
United States mail, &rst class postage prepaid, properly addressed to the person or entity to whom
~~ ~ directed at his or its address shown herein, or at such other address as shall be given by notice
_~>, pursuant to this paragraph. Copies of such notices shall also be sent in the same manner to the City
~01~ Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611.
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~o ~ 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 d provision shall be enforceable to the fullest extent permitted by law.
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a m 18, lrntire A Bement. $xcept as otherwise provided herein, this Agreement supersedes
v = and controls all prior written and oral agreements and representations of the parties.
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~ m 19. to relation. Neither the lilies 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
r m m of a conflict, the terms and conditions of the numbered paragraphs shall govern.
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.~ m ~ 20. $indi Agreement -Recording. This Agreement is binding upon the parties hereto,
m'' their successors and assigns, and any sale of the Subject Property, or any portion thereof shall be
~a ~ subject to this Agreement. This Agreement shall be recorded with the Pitkiri County Clerk and
- 5 -
Water Service Agreement (ravlsion to form of 11/93)
Recorder, and shall impose covenants running with the land upon all of the Subject Properly. Deeds
to subsequent owners shall provide notice of this Agreement and the obligations contained herein.
21. r*~vPrnin_g l.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 party
shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees
and reasonable attorneys' fees.
22. Authorization of Si a re . 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. o nt rpm. 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 year first
above written.
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and
Home Rule City
By
Phil Overeynder, W r ' ector
APPROVED AS TO FORM:
Aspen City Attorney
I I"III "III "III' II'I V'III' I'III ~II'I III "II"I~I I"I
427860 02/18/1999 09:408 AGREEMEN DAVIS SILVI
6 of 7 R 36.00 D 0.00 N 0.00 PITKIN COUNTY CO
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BILLY RAY E ANKS
G (Pti.,
BONNIE JEAN UBANKS
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Water Service Agreement (revision to form of 11/93)
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The foregoing instrument was subscribed and sworn to before me this ~~ day of
~,~'f m h ~ 1 ~by Billy Ray Eubanks.
Notary Public ••""""•'~•,,
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tn\~ The fore oing instrument was subscribed and sworn to before me this ~ day of
fXCE' 1~ by Bonnie Jean Eubanks.
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111111 IIIII 111111 IIII 1111111 IIIII IIIII III IIIII IIII IIII
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Water Service AgreemenC (revision [o form of 11/93)
RECEPTION #: 561707, 08/06/2009 at 11:53:52 AM, 1 OF 6, R $31.00
Janice K. Vos Caudill, Pitkin County, CO
CITY OF ASPEN
AMENDMENT TO WATER SERVICE AGREEMENT
s to Water Service Agreement ( "Amendment") is entered into this
day of tf 2 f P-9 is Aspen, Colorado, between THE CITY OF
A EN, 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 & Hut 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 Retarder 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 seer Agreement thus
requirements different from those served pursuant to the Original Water Service
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 trade 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
Awed eW a Water S.nk. Arrgwy (NOV
RECEPTION #: 561707, 08/06/2009 at 11:53:52 AM, 2 OF 6,
Janice K. Vos Caudill, Pitkin County, CO
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 nuttier amended from time to time], 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 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
extratenitorially; 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 use 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 year. Only the single family structure approved by Pitkdn 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 thither amendment of
the Original Water Service Agreement, and the City makes no guarantees or assurances that any
such requested amendment will be approved.
2. ]taw Water Use on Subiect 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.
Throe 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
Aradnw p Ws SMa Amount (asw)
RECEPTION #: 561707, 08/06/2009 at 11:53:52 AM, 3 OF 6,
Janice K. Vos Caudill, Pitkin County, CO
Jnvcstments, 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
described untreated water from the Si Johnson Ditch on the Subject ' party, Three Trees agrees
that unless the Original Water Service Agreement is further amended (winch 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 Charges. and Payment in lieu of Water Rights Dedication
- Computation and Payment: Schedulina 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
charges shall be paid at the lime 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 use, connections, or water service beyond those set forth herein is in any
way authorized by the Original Water Service Agreement or this Amendment.
5. Prooertv Rahts 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 furnished 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 to Colorado State Engineer or his agents.
A1mduwa Wasp Service Ag,n n✓f OE)
RECEPTION #: 561707, 08/06/2009 at 11:53:52 AM, 4 OF 6,
Janice K. Vos Caudill, Pitkin County, CO
6. FDfn. Three Trees recognizes and agrees that the City has the right to
enforce its Hiles, 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 terras of the Original Water Service Agreement or this Amendment,
the City shall have all tentedia 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
paragraph.
7. T +arm ea111eaal. 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 declared 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 it after a reasonable amount of time, their negotiations are unsuccessful. this Agreement
shall terminate.
8. @gps4a l44• 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 die 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 toms, 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 are 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 51 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 Paragraph 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 charge, 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 became 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 tine petition the Colorado Public Utilities
Commission to acquire jurisdiction over any water rate set by the City. The parper ez Service
tha event the City is held to be a regulated public utility by virtue of the Original
Agreement or this Amendment, the Original Water Service Agreement and this Amendment
shall terminate and be of no further force or effect.
10. Amn.dnrnt: 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
4m, *W Do Water Set Arwinw (0808)
RECEPTION #: 561707, 08/06/2009 at 11:53:52 A14, 5 OF 6,
Janice K. Vos Caudill, Pitkin County, CO
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. This Amendment is binding upon the parties hereto,
their sturgeons end assigns, and any rile of the Subject Property shall be subject to the Original
Water service Agreement as emended by this Amendment This Amendment shalt be recorded
with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land
upon all of thte Subject Property. Deeds to subsequent owners shall provide notice of this
Amendment and the obligations contained herein.
12. Authorization of Signatures. The parties aclmowledge 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. Cot+MNnaN+. 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 year
fast above written.
THE CITY OF ASPEN,
COLORADO
ATTEST: A Municipal Corporation and
Home Rule City
BY sr
By ":71
City Clerk Mayor
APPROVED AS TO FORM:
<7J!%0- Z/'
L y
Throe Trees, LLC
B vVM / a t & -
Title: Ald,nos Meadtr
APPROVED AS TO FORM:
4m&*ier re Wow Sonia Arnow WI)
RECEPTION #: 561707, 08/06/2009 at 11:53:52 P24, 6 OF 6,
Janice K. Vos Caudill, Pitkin County, CO
34
At y for Th Trees LLC
STATE OF COLORADO
u•
COUNTY OF PITKIN ) /
Sub bed and sworn to before me this Lt_ . day of "L; f '" A `'/ , 2008, by t1I S.. taro /[
t, 1444, -5,-y+ ornate Trees LLC.
Witness my hand and official seal. My commission expires
•
Notary Public
(SEAL) THOMAS J. TODD
NOTARY PUBLIC
STATE Of COLORADO
maw PiMAAIPwnb+' M7A�sKd.r....iw +�s,OrlWr w!
My Commission Expires 12/13/2012
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