HomeMy WebLinkAboutordinance.council.004-01 ORDINANCE NO. 4
Series of 2001
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AUTHORIZING THE EXTRATERRITORAL WATER SERVICE AGREEMENT WITH. JACK
GUENTHER TRUSTEE UNDER THE WILL OF CHARLES F URSHEL JR. FOR PROVISION
OF TREATED WATER SERVICE TO SERVE THE URSCHEL TRACT D SUBDIVISION PUD.
WHEREAS, Jack Guenther, Trustee under the Will of Charles F1 Urschel Jr., (the applicant)
has applied for extension extraterritorial water service t fr?m the city to serve the urschel Tract "D"
Subdivision P.O.D. which comprises five single family residences, each with a caretaker unit final
plat of which of was approved by Pitkin County by Resolution No. 147-20000 and recorded at
Reception No. 446364 on August 24, 20000; and
WHEREAS, the property to be served is located in Pitldn County, and not within the City
limits of the City of Aspen, and
WHEREAS, Section 25.12.020 of the Aspen Municipal Code provides that any extension
of City water service outside the corporate limits of the City of Aspen shall be made pursuant to an
agreement with the City and in accordance with the City of Aspen water main extension policy and,
further, that the City may grant water service only upon a determination that no conflict exists
between the best interests of the City and the prospective water use, and that the City may impose
such contract, water rights dedication and bond requirements as it deems necessary to safeguard the
best interests of the City; and
WHEREAS, the City Council has adopted by Resolution No. 5, Series of 1993, as amended,
policies to guide municipal water system development and services beyond the City limits; and
WHEREAS, said policies require the City Council to make a determination that the proposed
water service extension complies with said policies and is in the best interests of the City of Aspen;
and
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WHEREAS, the City Council has had an oppommity to review with City staff the proposed
extension of water service to Applicant's property,
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
provision of City water service to the Urschel Tract "D" Subdivision P.U.D. outside the City limits
of the City of Aspen, is in the best interests of the City and substantially complies with the City of
Aspen water policy for extraterritorial services, as set forth in Resolution No. 5, Series of 1993, as
amended, and therefore agrees to extend City water service to the Urschel Tract "D" Subdivision
P.U.D. on the terms and conditions set forth in water service agreement attached hereto as Exhibit
A and incorporated herein by reference, which water service agreement shall control provision of
water to the Urschel Tract "D" Subdivision PUD notwithstanding any later annexation into the City
of Aspen.
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. If any section, subsection, sentence, clause, phrase or portion of this ordinance
is for any reason held invalid or unconstitutional ir/a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
Section 4. A public hearing on the ordinance shall be held on the 12a~ day of February
2001, in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
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Council of the City of Aspen on the 22nd day of January 2001,
xx .-~ ..... ,'~. ~., ~t;i~ . Ra el Richards, Mayor
~';:''i~: "~:""~i< ~!~'I:!' ' Raffl ~or
o~-~.~ s. ~&, city C~erk
FINALL~ adopted and ordered publis~he~this 12~ day of Febmarw200
xq ~? 4 G.~ '.~ ~¢?" R[chel Richards, Mayor
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CITY OF ASPEN
WATER SERVICE AGREEMENT
(New Development)
This Water Service Agreement is entered into this 12-44`- day of~.
2001, in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation ~
home rule city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the
"City"), and Jack Guenther, Trustee Under the Will of Charles F. Urschel, Jr., whose address is 153
Treeline Park, Suite 300, San Antonio, TX, 78209 (hereafter "Developer").
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, all such laws, charter, ordinances, rules, regulations, policies and resolutions; and
WHEREAS, Developer is the owner of certain real property comprising approximately 20
acres situated in Pitkin County, Colorado, known as the Urschel Tract "D" Subdivision P.U.D., as
more particniarly described as
That part of the SW 1/4 NW 1/4 of Section 14, Township 10 South.,
Range 85 West of the 6th P.M. lying northerly and westerly of the
northwesterly bank of Maroon Creek, in Pitkin County, Colorado
referred to in this Agreement as the "Subject Property"; and
WHEREAS, Developer seeks to construct on the Subject Property five single-family
residences, each with a caretaker unit (referred to herein as the "Project"); and
WHEREAS, Developer seeks to obtain municipal water service from the City for the Project
on the Subject Property; and
WHEREAS, the Subject Property is located outside the corporate limits of the City; and
WHEREAS, the Board of County Commissioners of Pitkin County approved, by Ordinance
No. 94-24 and Resolution No. 94-128, the rezoning, subdivision, and general submission for the
Urschel Tract D; and
WHEREAS, detailed submission and final plat approval for Project have been granted by the
Board of County Commissioners for Pitkin County by Resolution No.147-2000 Pitkin County
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Records, and a copy of said final approval was recorded at Reception No. 446364, on August 24,
2000 with the Pitkin County Recorder; and
WHEREAS, water service for the Project will require the construction and installation of
certain water mains, lines and related facilities as described in this 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 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 extraterritorial service, and make a profit; which the
City acknowledges are met by this Agreement; and
WHEREAS, the City has determined that this Agreement 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 Code provides for the rating of new or expanded water service based on
potential water demand as expressed in equivalent capacity units (hereafter "ECU"); and
WHEREAS, the City desires to encourage the use of raw water supplies for certain outdoor
irrigation where practical, feasible and safe so as to reduce the dependence on treated water for this
purpose and to minimize the costs of providing treated water service to the Project and the Subject
Property; and
WHEREAS, Developer has submitted its Application for Water Service Extension (the
"Application") and has paid all fees required in connection with the Application. The Application,
and all attachments, addenda and exhibits thereto have been relied upon by the City in author/zing
this Agreement; and
WHEREAS, the City has approved the Application, and is willing to provide water service
to Developer on the terms and conditions of this Agreement.
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THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the City and Developer agree as follows:
PURPOSE OF AGREEMENT
1. Water Service to Project and Subject Property. The City hereby agrees with
Developer to provide treated water service to the Project and the Subject Property under the terms
of this Agreement in such quantities and to the extent herein provided so as to serve the structures
and uses authorized by Pitkin County under the approvals granted to Developer as recorded at
Reception No. 375794 at Book 765, page 602 on October 26, 1994. Developer understands that the
City will be the sole provider of raw water (if raw water is used on the Subject Property) and treated
water to the Project and the Subject Property. Pursuant to this Agreement, the City shall provide
treated water service adequate to meet the approved demands and uses of the Project and the Subject
Property, provided, however, that the City shall not be required to supply water to serve more than
25.0 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 10.08 acre-feet per year. Only those structures and uses approved by Pitkin County for the
Project and the Subject Property may be served under this Agreement.
2. Limitation of Time to Provide Service. The City's obligation to provide water service
to the Project and the Subject Property pursuant to this Agreement shall terminate if Developer has
not completed construction of the water transmission and distribution mains, lines, and related
facilities described on Exhibit Cwithin two years of annexation, or December 31, 2005, whichever
shall first occur, unless completion of construction is delayed by force majeure as defined in
paragraph 30 below, in which case the deadline shall be extended by the same number of days as the
force majeure delay that prevented completion of construction.
CONSTRUCTION BY DEVELOPER
3. Mains, Lines and Facilities. Developer will design and construct the water
transmission and distribution mains, associated facilities and internal distribution lines for the Project
in accordance with and subject to the City's design, materials and construction specifications and
approval, at Developer's own expense; provided, however, that to the extent the City desires any
mains, lines or facilities with capacities larger than necessary to meet the needs of the Project, the
City will be responsible for the incremental cost of such enlarged or additional mains or facilities.
"Incremental costs" shall be defined as the difference between the total cost ora particular facility
designed and constructed solely to meet the needs of the Project and the total cost of such facility
as enlarged at the City's request.
The parties acknowledge and agree that the water main to be constructed pursuant to this
Agreement will be a dead-end line because it is an extension of an existing dead-end line, and
geographic constraints do not permit a looped system, although the City typically requires that water
main extensions be made in a manner that will allow connection with another of the City's treated
water mains to create a looped system. Nor are facilities for storage of water on the Subject Property
required pursuant to this Agreement.
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4. Preconstmction Exhibits. The following exhibits concerning the Project have been
prepared by Developer. Developer acknowledges that City has not approved the final design
drawings for the project, and that final design drawings must be approved in writing by the City
Water Department before construction may be undertaken.:
ExhibitA: Description of existing facilities, if any, that will be incorporated into the water
system infrastructure for the Project.
Exhibit t3: General description of New Facilities
Exhibit C: Detailed description of new facilities, including
a. Reduced-size copies of the proposed final plans for the water mains, lines,
and facilities to be constructed pursuant to this Agreement, which are subject
to approval by the City.
b. Proposed schedule for completion of the Project water mains, lines
and associated facilities to be constructed pursuant to this Agreement,
subject to approval by the City.
Exhibit ~.
a. Estimated gross water requirement (gpd) and water flow requirements for the
Project for in-building use at full development, and estimated treated water
irrigation requirements, including number of square feet to be irrigated with
treated water.
b. Fireflow provisions, including location, size and description of fireflow
storage to serve the Subject Property.
c. Description of general location of easements to be conveyed to the City.
5. Final Plans. The City has not approved the final plans and specifications for the water
mains, lines and facilities to serve the Subject Property, and Developer acknowledges that final plans
and specifications must be approved in writing by the City prior to commencement of construction.
After the final plans and specifications are approved, no substantial changes shall be made to the
approved final plans and specifications without the City's prior written approval. Developer shall
contact the City Water Department at least ten (10) working days prior to commencement of
construction to arrange a preconstruction meeting between representatives of the Water Department,
the Water Department's inspector, and Developer's engineer and contractor to review the final plans
and any minor modifications thereto, to discuss construction scheduling, arrangements for the
advance deposit of the City's construction inspection fees, and any other matters that the parties deem
necessary. Developer's registered professional project engineer shall inspect and certify the design
and installation of all water system mains, lines and facilities to be constructed pursuant to this
Agreement.
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in the amount o f 100% of the water system construction costs (including those incremental costs,
if any, for enlarged or additional facilities requested by the City as provided in paragraph 3, the
portion of the bonding attributable to such incremental costs to be reimbursed by the City). Such
bonds shall be in a form acceptable to the City Attorney and shall ensure completion of and payment
for the construction, and hold the City harmless for payment to the contractor or any subcontractors,
materialmen, or others involved in the construction of the water transmission and distribution mains,
interconnecting mains (loop system), lines and associated facilities, or for the provision of materials
therefor. Developer shall obtain and assign to the City all warranties from materialmen and suppliers
warranting the water system improvements constructed by Developer free and clear of defects for
a period of two (2) years from the date of completion construction. In addition, Developer shall
obtain and assign to the City (in form approved by the City Attomey) a maintenance or warranty
bond equal to one hundred percent (100%) of the water service system construction costs (including
those incremental costs for enlarged or additional facilities to be borne by the City, the portion of
bonding attributable to such incremental costs to be reimbursed by the City), ensuring the proper
condition and operation of such water service system for a period of two (2) years from the date of
acceptance of the system by the City. The parties acknowledge that the foregoing obligations shall
be provided to the extent that they are not duplicative, in the reasonable opinion of the City Attorney,
of the security required under any Subdivision Improvements Agreement approved by Pitkin County.
7. Payment in Lieu of Water Rights. The City acknowledges receipt of 0.1 c.f.s.
conditional, of the Stapleton Brothers Ditch Enlargement and Water Right, decreed in Civil Action
No. 5884, Garfield County District Court on November 5, 1971, for domestic, municipal and
recreational purposes. In additional, Developer shall, upon execution of this Agreement, convey to
the City all existing wells located on the Subject Property, along with the well permits and water
rights pertaining thereto. Such conveyance shall be a prerequisite to provision of water service
hereunder.
8. Construction. Upon completion of the prerequisites described in paragraphs 3 through
7 above, Developer shall proceed with due diligence to construct the water transmission and distri-
bution mains, lines and associated facilities in accordance with the plans and specifications and the
construction schedule. No construction shall occur between November 1 and April 1 without written
permission of the City's Water Department. An automated meter reading system shall be installed
for all new customers who will be served by the Project.
"Pretapping" is defined as connection of an individual service line to a main or distribution
line when the main or distribution line is installed. Should Developer wish to pretap the distribution
lines, a Pretapping Agreement will be required by the City.
9. Fees. Developer shall timely pay all fees imposed by the City in connection with
reviewing and approving this Agreement, the design drawings and construction plans, as well as
construction inspection fees. An advance deposit for construction inspection fees shall be required
at the preconstruction meeting described in paragraph 5 above. Developer shall also be responsible
for timely acquiring and paying for all permits and permit fees from entities other than the City (such
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as Pitkin County and/or other regulatory agencies) necessary for construction of the mains, lines and
associated facilities.
10. Inspection of Construction. Construction must be inspected by the City's engineers
or other designated personnel prior to burial or final installation. Developer shall give the City
Water Department reasonable advance notice when the mains, lines and/or associated facilities are
ready for burial or installation, and the City's engineer or agent shall inspect said mains, lines and/or
associated facilities within two working days of such notice. Developer shall timely pay all
construction inspection fees.
I 1. Easements. Developer shall obtain at its own cost and convey in perpetuity to the
City as-built non-exclusive easements for water mains, lines, and other water facilities constructed
pursuant to this Agreement, along with all necessary access easements for maintenance and repair
purposes ("easements"). All easements on, over or through property located outside of public rights-
of-way shall be surveyed at the Developer's cost. The water main and water line easements must
be large enough to provide the City with at least ten (10) feet on either side of water mains and lines
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 and easements for other facilities shall be of a size determined by the City to be
reasonably necessary for the operation, maintenance and repair of other facility to be located on such
easement. Each 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 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 Colorado Governmental Immunity Act or other applicable law.
12. Testing - Conveyance; As-Built Drawings. Upon completion of construction and
before acceptance of the system or any water is delivered pursuant to this Agreement, all distribution
and transmission mains and all associated water lines and facilities shall be tested. Upon approval
by the City of the test results and deliver to the City of the required maintenance and warranty bonds,
surveyed as-built drawings and all required easements, the City shall accept the water system
infrastructure for the Project, and it shall be conveyed (excluding individual service lines) with all
necessary non-exclusive easements to the City, free and clear of all liens and encumbrances, by deed
in form reasonably acceptable to the City Attorney. Performance and payment bonds provided by
Developer pursuant to paragraph 6 above shall be adjusted to reflect the final actual construction
costs. The maintenance or warranty bond required by paragraph 6 above must be in place and must
reflect the actual construction costs prior to the City's acceptance of any main, line or facility. As-
built drawings of the Project, including the water system and all other utilities, shall be provided to
the City on reproducible sepias with a maximum size of 24" x 36", and on an "auto cad disk data
transfer file" tied into one (1) set of state plane coordinates.
WATER SERVICE
13. Treated Water Service. Upon completion of construction and acceptance of the water
distribution and transmission mains and lines, the associated facilities and easements by the City,
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the City will provide treated water service to the Subject Property to no more than the total number
of ECUs provided for by the approved final design drawings. Any change in the treated water
service requirements for the Subject Property wilt require approval by the City, and amendment of
this Agreement.
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 of trees, lawns and gardens. Developer agrees to adopt,
in a form reasonably acceptable to the City Attorney, covenants which restrict the use of treated
water delivered hereunder by single family units to no more than 10,000 square feet per lot in the
five-lot subdivision, by drip or sprinkler irrigation means. Notwithstanding the foregoing, all water
use ~vill be consistent with the City's Water Policy Resolution (Resolution No. 5, as amended, (Series
of 1993)), and water conservation ordinances.
14. Raw Water Service. The City may, at its election, provide raw water for irrigation
purposes on the Subject Property to the extent it is willing and able to do so using its existing ditch
system. Developer understands and agrees that the City shall be the sole provider ofraw or treated
water for irrigation pursuant to this Agreement, and that unless this Agreement is amended, neither
Developer nor any owner or user of the Subject Property will develop or utilize independent raw
water systems and/or water rights or wells within the Subject Property.
15. Tap Fees and System Development Charges - Computation and Payment: Scheduling.
of Taps. All tap fees for treated water service herein provided shall be assessed utilizing the City's
prevailing applicable tap fee at the time of application for a building permit for the structure for
which service is sought. No water service shall be provided to any structure absent payment of the
appropriate tap fee and any applicable hookup charges. Tap fees and hookup charges shall be paid
at the time of building permit issuance. Unless a Pretapping Agreement has been executed by the
Developer, the City Water Department shall determine scheduling of all physical taps or connections
to the main lines.
Developer shall also pay to the City a well system development charge in the amount of $400
per ECU. The total well system development charge for the entire Project on the Subject Property
must be paid in full before any delivery of water will be made to the Project by the City.
16. Service Lines. Each service line shall be metered in accordance with the Code at the
sole expense of Developer and cross-connection and backflow prevention devices will be installed
at the water user's expense.
17. 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 those set forth herein and in the Addenda and Exhibits hereto is in any way authorized by
this Agreement. The City is not by this Agreement prejudging, certifying or guaranteeing its ability
to provide treated water service to any use or structure except as provided herein, nor may this
Agreement be used as evidence of approval of any land use requests, or as evidence of approval of
water service for any land use request, except as provided herein.
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18. Service Subject to the City Charter, Codes, Rules, Regulations and Policies. All
water service provided hereunder shall be subject to all applicable provisions of the Charter of the
City of Aspen and the Aspen Municipal Code, as well as all applicable roles, policies or regulations
of the City now in effect or as may be hereafter adopted, including but not limited to those provisions
of the Code applicable to City residents as set forth in Chapter 8.40 and Chapter 25.
19. Rules Regarding Water Use. Developer agrees to adopt all provisions set forth herein
as rules and regulations governing the use of water on the Subject Property and for the Project, and
agrees that this Agreement and the Addenda and Exhibits hereto shall be recorded as covenants
running with the land and shall be as fully enforceable on the Subject Property as if the same were
situated inside the City. Until sale of the last lot sold within the Project, Developer 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. Thereafter, the foregoing
obligations shall be assumed by the owners of the Subject Property and the homeowners association
or other organization established for the purpose of assuring compliance with this Agreement.
Developer also agrees to prohibit all unnecessary or unreasonable waste of water on the property
served by this Agreement, and to make reasonable efforts to enforce such prohibition. The
unreasonable or unnecessary waste of water shall be defined as set forth in the Code.
20. Source of Water Supply. 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 availability of water supply or because
of an actual failure of water supply due to drought, inadequate runoff, poor quality, failure of
infrastructure, or other occurrence beyond the City's reasonable control.
21. No Guaranty of Water Quality, Quantity or Pressure. The City makes no promise or
guarantee of pressure, quantity or quality o fwater supply for any purpose, including fire suppression,
except as specificallyprovided 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 and to exercise reasonable care and foresight in furnishing water hereundm' equal
in quality to that furnished inside the City.
22. Property Rights in Water. All water furnished under this Agreement is provided on
a contractual basis for use on the Subject Property as described in this Agreement, and all property
rights to the water to be furnished from the City hereunder are reserved to the City. Water service
provided under this Agreement 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 this Agreement, Developer shall have no obligation
to create any particular volume of return flow from the water furnished under this Agreement.
Developer 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.
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VIOLATIONS
23. Enforcement by the City. The parties to this Agreement recognize and agree that the
City has the right to enforce its rules, policies, regulations, ordinances and the terms of this
Agreement by the disconnection of the supply o£water provided hereunder. Additionally, in the
event that Developer or any user who has purchased or leased a portion of the Project or the Subject
Property violates the rules, policies, regulations or ordinances of the City, the City shall have all
remedies available to it at law or in equity, or as provided in the Code. In addition, the Developer
shall record covenants running with the Subject Property, in foru~ acceptable to the City Attorney,
which authorize the City to enforce the treated water irrigation limitations set forth in paragraph 13.
Without limiting the foregoing rights and remedies, the parties agree that this Agreement may also
be enforced by injunction, the parties agreeing that the damages to either party from such violations
are irreparable, and there is no adequate remedy at law for such violations. The City shall be free
from any liability arising out of the exercise o£its rights under this paragraph.
Notwithstanding the foregoing provisions of this paragraph 23, if an individual owner or
lessee within the Subject Property (other than Developer) commits a violation with regard to water
delivered to his owned or leased property, only that individual owner% or lessee's water service shall
be disconnected, and enforcement actions will be directed toward that violator, and not toward those
who are not violating this Agreement.
TERMINATION
24. Termination by A~yeement. Except as provided to the contrary herein, this
Agreement shall only be terminated in writing by mutual agreement and the term o£this Agreement
shall continue until such termination.
25. Termination if Illegal. The parties agree, intend and understand that the obligations
imposed by this Agreement are conditioned upon being consistent with state and federal laws and
the Code. The parties further agree that if any provision of this Agreement 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 this Agreement so as to make it consistent with the Code or
state or federal laws as appropriate, and if, after a reasonable amount of time, their negotiations are
unsuccessful, this Agreement shall terminate. The City agrees that its contractual obligations
hereunder will not be impaired by any amendment to the Code unless such amendment (or
impairment) is mandated by state or federal law.
ANNEXATION
26. Annexation. Upon the request of the City, at the City's sole discretion, Developer,
or its successors in interest, shall petition for and/or consent to the annexation of the Project and the
Subject Property, or those portions thereof as deemed appropriate by the City, to the City of Aspen
at such time(s) as determined by the City. Such annexation(s) shall not divest or diminish any land
use approvals or development rights awarded by Pitkin County for the Project or the Subject
Water Service Agreement (new development) 12/97 (revised 06/98)
FINAL 02-19-01 9
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13 o~ 30 R 150.00 D 0.00 N 0.00 PITKI~N COUNTY CO
Property, the Pitkin County approvals (including but not limited to thc floor areas permitted for each
house and the calculation method for computing said FA~ memorialized in ?i~in County Ordinance
No. 94-24, Resolution No. P4-128, Resolution No. 147-2.000 and the Covenants and Subdivision
Improvement Agreement are acknowledged as fully legally vested. Notwithstanding, no provision
of this Agreement shall require owners of the Subject Property to comply with any building,
engineering or design standard or Code provision, or interpretation thereof, which differs from the
standards or variances under which the Project was approved by Pitkin County. Notwithstanding,
no provision of this Agreement shall require owners of the Subject Property to comply with any
building, engineering or design standard or Code provision, or interpretation thereof, which differs
from the standards or variances under which the Project was approved by Pitkin County. In the event
that annexation would result in any approval, design criteria or zoning classification which would
render the Subject Project, or any portion thereof, non-conforming in nature with the City, the City
shall adopt such appropriate zoning, design criteria or other regulations for the Subject Property
which would render the Subject Property conforming. Failure of Developer or its successors in
interest to commence and complete annexation proceedings as herein required shall constitute a
material breach of this Agreement authorizing the City to terminate the same. Alternatively, failure
of Developer or its successors in interest to commence and complete annexation as herein required
shall authorize the City to commence and/or complete such annexation on their behalf, in which
event the City shall charge, and Developer and/or its successors in interest shall pay, all costs and
fees associated with such annexation.
Notwithstanding annexation of all or any part of the Subject Property, this Agreement will
remain in full force and effect.
GENERAL PROVISIONS
27. No Regulated Public Utility Status· The parties agree that by this Agreement the City
does not become a regulated public utility compelled to serve other parties similarly situated.
Developer 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 this
Agreement, this Agreement shall terminate and be of no further force or effect.
28. 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 hereund~.
29. Notices. All 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
directed at his or its address shown herein, or at such other address as shall be given by notice
pursuant to this paragraph. Notices to the City of Aspen shall be directed to the Water Director, City
of Aspen, 130 South Galena Street, Aspen, Colorado 81611. 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 8161 I. In addition, a copy of the Notice to the Developer shall be provided to:
Kevin L. Patrick, Esq.
Water Servtce Agreement (new development) 12/97 (revised 06/98)
FINAL 02-19-01 10
I IIIIII IIIII IIIIII IIIIII !111 IIIII II/BI III IIIIII III IIII
4 2eez e3/es/2ee~ ez.4eP OROZN;tNC D~VZS SZLV!
of 3e R se.ee D e.ee N e.ee
Pt'TKIN COUNTY CO
Patrick & Stowell, P.C.
730 East Durant Avenue, Suite 200
Aspen, CO 81611
30. Force Majeure. No party shall be held liable for a failure to perform hereunder due
to wars, strikes, acts of God, natural disasters, drought or other similar occurrences outside of the
control of that party.
31. Severabilit¥. If any provision of this Agreement shall be or become invalid or
unenforceable, the remainder of the provisions shall not be affected thereby, and each and every
provision shall be enforceable to the fullest extent permitted by law.
32. Amendment; Assigmnent. Neither this Agreement, nor the obligations of Developer
or.Deve!oper's right to receive water may be assigned to a subsequent developer without the City's
prior written consent. Notwithstanding the foregoing, Developer may, in the course of development
of the Subject Property, transfer individual lots to non-developer owners without the City's prior
written consent. The City's obligations hereunder may not be assigned without Developer's prior
written consent. This Agreement may be amended only in writing, signed by the parties.
33. Entire Agreement. Except as otherwise provided herein, this Agreement, including
its Addenda and Exhibits, supersedes and controls all prior written and oral agreements and
representations of the parties and is the total integrated agreement among the parties governing the
matters provided for herein.
34. Interpretation. Titles and paragraph headings shall not be used to alter the meaning
of this Agreement.
35. Binding Agreement - Recording. This Agreement is binding upon the parties hereto,
their successors and assigns, and any sale of the Project, the Subject Property, or any portion of either
shall be subject to this Agreement as provided herein. This Agreement, including the Addenda and
Exhibits hereto, shall be recorded with the Pitkin County Clerk and Recorder at Developer's
expense, 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.
36. Governing Law; Venue; Attorneys' Fees. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in accordance with the laws
of the 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 regarding
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.
37. Authorization of Signatures. 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.
Water Service Agreement (new development) 12/97 (revised 06/98)
FINAL 02-19-01 11
Aspen City Attorney
DEVELOPER
Jack Guenther, Trustee Under the Will of
State of TEXAS )
) ss
County of BEXAR
to before me this 21st dayof February ,200l, by
Trustee Under the Will of Charles F. Urschel, Jr.
My commassion expires 9/17/01
/(lotary Public
Carol Sue 8ruehler
Approved'as to form by Attorney for Developer:
PATRICK & STOWELL, P.C.
452081 03/$5/2001 01:40P ORDINAHC DI~VI$ SILVI
12
F~ 02-19-01
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16 o~ 3~ R 150.0~ D ;).00 N 0.~0 PTTK'rN COUNTY CO
3 8. 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.
1N 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
:: ~Yayor~_~.f~,~~_..~
AS TO FORM:
'~?11/~ /.~.o~ ~-I/z~ I~ /
A'~p ~ ~C {fyi'J[ t ~'o r n-ey
DEVELOPER
Jack Guenther, Trustee Under the Will of
Charles F. Urschel, Jr.
State of )
) ss
County of )
Subscribed and sworn to before me this day of ,2001, by
Jack Guenther, Trustee Under the Will of Charles F. Urschel, Jr.
Witness my hand and official seal. My commission expires
(SEAL)
Notary Public
Approved as to form by Attomey for Developer:
PATRICK & STOWELL, P.C.
By
Kevin Li Patrick C:/TEMP/wsafiilal021901AC wpd
Water Service Agreement (new development) 12/97 (revised 06/98)
FINAL 02-19-01 12
Water Service Extension
Outside City Limits
EXHIBIT A
Description of Existing Facilities:
Size of trammission/distribution mains:
Length of transmission/distribution mains:
Age of transm/ssion/distribution maim or other facilities:
~ Water storage tanks (number and capacity): Ea~le Pines Tank 800 ~000 gal.
~ Hydrants (number):
~Pump stations (number): Tiehack Pump Station
~ Service connections per structure (number):
~ Wells (number and capacity of each):
Attachments to Exhibit A must include: NOT APPLICABLE
~Plat of the Project as approved by Pitkin County
~ As-built drawings showing locations of existing maim, lines and facilities
~ Design drawings and specifications of all existing maim, lines and facilities
~ Total existing fixture count per structure
(Include treated water irrigation systems and other water amenities, as well as fixtures such as sinks, toilets, dishwashers, etc.)
[~ Records of current water usage
(Both residential and non-residential)
If the existing facilities serving the Project include individual or community wells, the
attachments to Exhibit A must also include:
~ Map showing location of all wells
~ Copies of Permits for all wells
Request for Consideration (12/97) Date: August B0, 1999
.Ia_O Water Service Extension
'="=~' Outside City Limits
EXHIBIT B
General Description of Proposed New Facilities
This is an 851 foot extension of the Aspen Water Main. There is 746 feet
of 8"
D.Z.P. and 105 feet of 2" D.Z.P. There are two fire hydrants, both
off the waterline.
Approximate size of transmission/distribution mains:
8" & 2"
Approximate length of transmission/distribution mains:
Water storage tanks (capacity):
~ Hydrants (number): 2
Pump stations (number):
~ Service connections (number): Fibre
Attachments toExhibitB will include: NOT REQUIRED BY AGREEMENT OF THE PARTIES
Documents showing Approval of the Project by Pitkin County
d:\client files\aspen\aspen.rfc rev 12-97
Request for Consideration (12/97) Date: August 30, 1999
Water Service Extension
Outside City Limits
EXHIBIT C
Detailed Description of New or U~graded Facilities:
Proposed commencement of construction:
Proposed completion of construction:
~sti~ted cost o~ construction: ~0.4~0
Size of transmission/distribution mains: 8"a
Length of transmission/distributionmains:
Water storage tanks (number and capacity): N/A
Hydrants (number): 2
Pump stations (v-~er): N/A
Service connections (n-~er): ~
A~achmen~ to Exh~ff C must include:
Detailed Cost Estimates for Proposed Construction
Critical Path Sequence Chart for Proposed Construction
Water & Sewer will be the first utilities to
be constructed aS they are the deepest.
Design Drawings of Mains, Lines and All Associated
Final
Facilities
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WATER SYSTEM
8" DIP 746 L.F. $ 35.00 $26,110.00
8" 22 ½ Bend- 2 $ 250.00 $ 500.00
Fire Hydrants - 2 $3,000.00 $ 6,000.00
8X2 Tapped Plug- 1 $ 150.00 $ 150.00
2" Curb Stop- 1 $ 125.00 $ 125.00
2" DIP 105 L.F. $ 25.00 $10,525,00
Services 5 $1,200.00 $ 6,000.00
Tie to existing $1,000.O0 $ 1.O00.00
$50,410.00
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2g of 35 R 150.00 D 0.00 N $.00 PITKIN COUNTY CO
Water Service Extension
Outside City Limits
EXHIBIT D
Please attach a description for the entire Project of: , ..... ;: : ',
Estimated gross water requirements (gpd) and water flow :requi.~em~rits for
in-building purposes in approved structures and uses;.on ~the S, ubject
Property at full development, and estimated treated !:w~t~l~iri!g~tion
requirements, including number of square feet to be irrigat~ed ~h ~?~ated
water.
Fireflow provisions, including location, size and descriptiom~ ~,reflow
storage to se~e the Subject Property.
General location of easements to be conveyed to Aspen. (Water main
easements must be at least 20' in width, and water mains must be located
at least 10' from other utilities. All easements must be of a size and
location acceptable the Aspen Water Department.)
Proposed tank easements: .............................
Proposed pump station easements: .....................
Other proposed easements: 20 ft. water line easement &~ =osa =.o.~.
Annual treated water demand 2.2 M gal.
Average 6,125 gals / day
Irrigation 25,000 Sq. Ft. or 1225 gals for subdivision
perday
Fireflow from Eagle Pine tank 800,000 gal.
92076E.lcd R.T:lg
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452081 03/05/2~01 ~I:4~P ORDXN;INC DAVX$ $XLVX
30 o¢ 30 R t50.00 D 0.~0 N 0,00 PXTKXN COUNTY CO