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HomeMy WebLinkAboutordinance.council.050-06ORDINANCE NO. Series of 200b COLORADO, AN ORDINANCE OF THE CITY TOUTHE WATERESERVI EF AGREEMENT DATED APPROVING AN AMENDMENT SEPTEMBER 16, 1996 WITH GERD M. ZEL WATERR SERVICE OUTSIDE THE CITY GALARDI FOR PROVISION OF TREATED LIMITS TO PROPERTIES KNOWN AS THE GOLF COND APPROV NG A (RAW WATER HIGHWAY 8T FORD HE SAME PROPERT`lESY 82), AGREEMEN WHEREAS, City Council approved ordinance No. 24, Series of 1996, which authorizes a Water Service Agreement whereby City treated water service was extended extraterritorially to the Golf Course Properties (39590 State Highway 82 and 39600 State Highway 82), subject to the terms and conditions of said Water Service Agreement; and WHEREAS, the Water Service Agreement was recorded with the Pitkin County Recorder on September 4, 1997, at Reception No. 408086; and AS the Water Service Agreement authorizes provision of treated City water to WHERE , Golf Course Properties for lawful in-building uses, fire protection, swimming pools, and the irrigation of up to 2,000 square foot on each lot of the Golf Course Properties; and WHEREAS, the Water Service Agreement contemplated execution of a Raw Water Agreement, which was never completed; and WHEREAS, disputes and differences arose between the City and the original owners of the Golf Course Properties regarding the parties' respective rights and obligations pursuant to the Water Service Agreement; and WHEREAS, the current owners of the Golf Course Properties, Archer Bishop and Sandra Bisho and Alston Gardner and Barbara Lee, have agreed to amend the Water Service Agreement p with no to limit their use of City treated water to indoor uses and minor outdoor uses only, irrigation; and WHEREAS, the current owners of the Golf Course Properties have also agreed to enter into a Raw Water Agreement whereby they will convey certain water rights to the City in return for the City's agreement to provide untreated water for irrigation and aesthetic uses on the Golf Course Properties as described in said Raw Water Agreement; and WHEREAS, the City Council has had an opportunity to review with staff the proposed amendment to the Water Service Agreement and the Raw Water Agreement, and to obtain such further information as it deems necessary to evaluate the amendment and the Raw Water Agreement, 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, which authorizes the City to provide treated water to the Golf Course Properties (Lot 1 and Lot 2, Golf Course Lot Split, Pitkin County, Colorado) for indoor and minor outdoor uses, is in the best interest of the City and substantially complies with the City of Aspen water policy for extraterritorial. water services, as set forth in Resolution No. 5, Series of 1993, as amended, and therefore agrees to amend the Water Service Agreement, on the terms and conditions set forth in the Amendment to Water Service Agreement attached hereto and incorporated herein by reference. Section 2. The City Council of the City of Aspen hereby determines that the proposed Raw Water Agreement attached hereto and incorporated herein by reference is also in the best interest of the City ,and the City Council therefore agrees to enter into said Raw Water Agreement. Section 3. 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 in 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. Q~ 0 ~y Section 4. A public hearing on the ordinance shall be held on the of'J , 200 the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City JJ 2006. Council of the City of Aspen on the 6 ~~ day of Attest: City Clerk FINALLY ADOPTED, 200. THIS ~, DAY OF Attest: City Clerk F;\ClientFiles\Aspen\GolfCourse\ordinance.Wpd 533747 Page: 1 of 8 01/25/2007 11:48 JRNICE K VOS CRUDILL PITKIN COUNTY CO R 41.00 D 0.00 Fiizcrl 103106 AMENDMENT TO WATER SERVICE AGREEMENT This Amendment is made to that certain Water Service Agreement dated September ] 6, 1996 and recorded September 4, 1997 with the Pitkin County Recorder at Reception No. 408086 ("Water Service Agreement"), among the City of Aspen, Colorado ("City"), Gerd M. Zeller and John Galardi and Cindy Galardi ("Original Applicants") regarding water service to the Original Applicalts' real property described as Lot 1 and Lot 2, Golf Course Properties Lot Split, according to the recorded Plats thereof in Plat Book 18 at Page 26, Plat Book 18 at Page 74, and Plat Book 19 at Page 98, Pitkin County, Colorado, and referred to in this Agreement as the "Subject Property." Recitals WHEREAS, the Subject Property is now owned by Sandra and Archer Bishop, Jr. (Lot 2), and J. Alston Gardner and Barbara Lee (Lot 1), who are successors in interest to the Original Applicants, and referred to herein as "Applicants;" and WHEREAS, the water system infrastructure that was to be constructed as described in the Water Service Agreement has been constructed, and the City presently supplies treated water service to the Subject Property; and WHEREAS, due to the passage of time, changed circumstances, and the need to clarify certain provisions of the Water Service Agreement, the parties have determined that the Water Service Agreement should be amended, NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. References to "Applicants" in the Water Service Agreement shall herein be deemed references to the Applicants herein identified, and their respective heirs, successors and assigns. All other terms in the Water Service Agreement that are defined terms shall have the same meaning in this Amendment, unless a different meaning is specifically stated. 2. The second sentence of Paragraph 1 of the Water Service Agreement is amended to read as follows: Pursuant to this Agreement, the City shall provide. treated water service to the Project and the Subject Property in an amount not to exceed eight (8} ECUs, provided, however, that the maximum volume of water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 3.25 acre-feet per year. 533747 Page: 2 of $ Fina1103106 elizsize0~ ll:as JANICE K VOS CRUDILL PITKIN COUNTY CO R 41.00 D 0.00 3. Paragraph 7 of the Water Service Agreement is deleted in its entirety, and replaced with the following Paragraph 7: 7. Conveyance of Water Rights, Permits and Structures. Applicants shall diligently pursue a final decree in Case No. 2002CW42, presently pending in the Water Court, Water Division No. 5, and upon entry of a filial decree, shall convey to the City, the following water rights and well permits, by quitclaim deed, free and clear of liens and encumbrances, for no additional consideration. The water rights described in (1) - (6) below are herein referred to as the "Water Rights" and are specifically identified as follows: (]) 5.75 acre-feet/year of fully consumable water attributable to tlae Stapleton Brothers Ditch, decreed October 16, 1933 iIi CA 3000, Garfield County District Court, with an appropriation date of June 30, 1904, with consumptive use quantified in Case No. 99CW306, Water Court, Water Division No. 5, on January 31, 2005. (2) .1 cfs of Stapleton Brothers Ditch Enlargement and Water Right, Priority No. 777, decreed November 5, 1971 in CA 5884, Garfield County District Court, with an appropriation date of September 22, 1960. (3) Rights available to Applicants pursuant to Water Allotment Contract No. 456 with Basalt Conservancy District dated April 12, 2005, as amended October 11, 2005, which authorizes allotment of water in accordance with said contract in the amount of 6.4 acre- feet per year. {4) Bishop Well No. 1, located in the SE1/4, NE1/4, Section 11, Township 10 South, Range 85 West of the 6`e P.M., at a point approximately 2040 feet from fhe North section line, and 1240 feet from the East section line of said Section 11, in Pitkin County, permit no. 64155-F. (5) Gardner/Lee Well No. 1, located in the SE1/4, NE1/4, Section 11, Township 10 South, Range 85 West of the 6'~' P.M., at a point approximately 2175 feet from the North section line, and 1625 feet from the East section line of said Section 11, in Pitkin County, permit no. 6'i985 - ~ . 2 533?47 Page: 3 of $ 01/2s/2007 11:48 JANICE K VOS CAUDILL PITKIN COUNTY C0 R 41.00 D 0.00 Filial 10310b (6) Bishop fond, located in the. SW1/4, NEl/4, Section 11, Township 14 South, Range 85 West of the 6`'' P.M., at a point approximately 2047.5 feet from the North section line, and 1483.5 feet from the East section line of said Section 11, in Pitkin County, with a capacity of .6 acre-foot. Conveyance of the above Water Rights shall be a prerequisite to continued provision of treated water service by the City pursuant to the Water Service Agreement and this Amendment after thirty days from entry of a final decree in Case No. 2002CW42. In addition, upon execution of this Agreement, Applicants shall convey to the City by quitclaim deed all of their right, title and interest in and to the Holden Ditch, and all water rights decreed thereto, and shall not oppose any water court proceedings brought to change or defend the Holden Ditch water rights. The City agrees that it will not undertake any water court proceedings to change the Water Rights described in subsections (l) - (6) above. Following conveyance to the City, and so long as the City owns the Water Rights, the City shall be the applicant in all water court proceedings to maintain diligence or to make absolute the Water Rights, and Applicants shall assist the City in such proceedings by timely providing information necessary to maintain diligence and/or to make the Water Rights absolute. Applicants shall not oppose any such applications for finding of reasonable diligence or to make the Water Rights absolute, although they may file statements of opposition in order to be informed of the course of the proceedings. Should Applicants file statements of opposition for such purposes, they will promptly thereafter stipulate to entry of a decree upon the pending application confirming diligence or making the water rights absolute. 4. The second paragraph of Paragraph 13 is deleted, and is replaced with the following: The treated water delivered by the City pursuant to this Agreement may be used for all lawful in-building municipal purposes. As of April 1, 2006, no treated water will be used for any outdoor purposes except the filling of swimming pools and fire protection purposes. All treated water use will be consistent with the City's Water Policy Resolution No. 5, as amended, series of 1993, and water conservation ordinances. Notwithstanding the foregoing, treated water service will be provided to the Subject Property only so long as all required backflow prevention devices are properly installed, tested and maintained, no unprotected cross-connections, structural or sanitary hazards exist, and so long as the City's treated water is used 533747 Paq.: 4 of 8 01/23/2007 31:48 FIlTCI~ I03IOG JRNICE K VOS CAUDiLL PITKIN COUNTY CO R 42.00 D 0.@0 for purposes authorized by this Agreement. Applicants' water systems (for both treated and raw water) will be available for inspection to authorized City representatives as provided in the Aspen Municipal Code to determine whether cross-connections or other stnictural or sanitary hazards exist and to confirm that treated municipal water is being used as authorized by this Agreement, and is not being used for otittdoor irrigation or aesthetic purposes. Upon reasonable request by the City, Applicants shall provide salnples of their municipal water and their irrigation water to allow the City to confirm the source of water being used at a particular location, and to verify the absence ofcross-connection. Treated water service may be suspended if a required backflow prevention device does not work, is removed or is bypassed, or if an unprotected cross-connection exists on the Subject Property. Service will not be restored until such conditions oI• defects are corrected at Applicants' expense. 5. Paragraph 14 is deleted and replaced with the following: The City will be the sole provider of treated and untreated water service to the Subject Property, and shall provide untreated water service pursuant to the Raw Water Agreement attached hereto as Exhibit A. 6. Paragraph 23 is deleted and replaced with the following new paragraph 23: 23. Enforcement by the City. The parties to this Agreement recognize and agree that the City has the right to enforce its rules, polices, regulations, ordinances and the terms of this Agreement by suspension of the supply of water provided hereunder, provided, however, that Applicants will be given notice of any such violation and a right to cure as provided in the Code or by Aspen Water Department Standards in effect at the time the notice is given, but in no event shall the cure period be less than seven days. In addition, in the event of a final court determination that the Customers (or any of them) have breached the Raw Water Agreement, the City may also suspend the supply of water provided hereunder, after providing seven days notice of suspension for such violation and without an additional cure period. Suspension of service maybe made pursuant to this paragraph whether or not the Raw Water Agreement itself is terminated. In addition, in the event that Applicants (or any of them) or any user who has purchased or leased a portion of the Subject Property violates provisions of the City's Code, rules, polices, standards, regulations, ordinances applicable to municipal water customers, or the terms of this 4 533747 Page: 5 of 8 01/25/2@07 11:48 Fr.'~aal 103106 JANICE K VOS CAUDILL PITKIN COUNTY CO R 41.00 D 0.00 Agreement, the City shall have all remedies available to it at law or in equity, or as provided in the Code or in this Agreement, including but not limited to the right to place a lien against the Subject Property, the right to foreclose such lien, and the right to specific performance of this Agreement. Without limiting the foregoing rights and remedies, Applicants agree that the City may also enforce such violations by injunctioli, the parties agreeing that the damages to the City from such violatians 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 of its rights under this paragraph. 7. Paragn-aph 24 is deleted in its entirety and replaced with the following Siew paragraph 24: 24. Termination. This Agreement shall .continue until terminated. It may be terminated (1) by mutual agreement of all parties, {2) together with termination of the Raw Water Agreement, at the written request of Applicans, as provided below, (3} upon a final court determination that Applicants have breached this Agreement; or (4) upon a final court determination that Applicants have breached the Raw Water Agreement. (1) Termination by Mutual Agreement: This Agreement may be terninated by mutual written agreement of all parties upon terms and conditions acceptable to all parties. (2) Termination at Applicants' Election. I£ Applicants wish to terminate this Water Service Agreement and the Raw Water Agreement (both of which must be terminated if termination is elected pursuant to this paragraph 24{2)}, they shall provide written notice of termination, signed by all Applicants or their successors in interest, to the City at least 30 days prior to termination. Upon expiration of said 30-day notice period, Applicants shall, at Applicants' expense, promptly take all actions required by the City to disconnect the Subject Property from the City treated water distribution system. Upon such disconnection, the City shall reconvey the Applicants' Water Rights described in paragraph 3 above (the restated Paragraph 7 of the Water Service Agreement), but not including the Holden Ditch, to Applicants by quitclaim deed, without intervening impairment, loss or encumbrance caused by the City, at no charge, and the City shall have no further obligation to provide raw or treated water service to the Subject Property. Applicants shall be responsible for all costs and fees for 533747 Pays: 8 of 8 01/25/2007 11:48 JANICE K VOS CAUDILL PITKIN COUNTY CO R 41.00 D 0.00 Final 103100 disconnection, and all water charges owing as of the date of discolnection. (3) Termination as a Result of Breach. Upon a final court determination that Applicants (or any of them) have breached the Raw Water Agreement, or upon a i:xnal court determination that Applicants (or any of them) have breached this Agreement, the City may terminate this Agreement by giving notice of termination, and no further right to cure must be provided. Unless the Applicants and the City otherwise agree, following the City's notice of termination, Applicants steal! permanently disconnect from the City's treated water system, upon the earliest of (a) entry of a decree of the Water Court, Water Division No. 5, authorizing in-house uses of water from Applicants' wells or othel- wells; (b) approval of a substitute water supply plan that allows in-house uses of water from Applicants' wells or other wells; (c) Applicants' connection to the treated water system of another water provider; or (d} one hundred twenty (120) days from the date of Notice of Termination. Upon termination, unless a mutual agreement for termination provides otherwise, the City shall reconvey the Applicants' Water Rights described in paragraph 3 above (the restated Paragraph 7 of the Water Service Agreement}, but not including the Holden Ditch, to Applicants by quitclaim deed, without intervening impairment, loss or encumbrance caused by the City, at no charge, and the City shall have no further obligation to provide raw or treated water service to the Subject Property. Applicants shall be responsible for all costs and fees for disconnection, and all water charges owing as of the date of termination. 8. Paragraph 29 is revised to include the following addresses for purposes of notice, and to delete the names and addresses of the Original Applicants. 6 Final 103106 533747 Pags: 7 of 8 01/25/2007 11:48 JANICE K VOS CAUDILL PITKIN COUNTY CO R 41.00 D 0.00 Archer Bishop Jr. and Sandra Bishop 39600 Highway 82 Aspen, CO 8161 1 and P.O. Box ] 1146 Knoxville, TN 37939 with copy to Patrick, Miller &Kropf, P.C. Attn: Paul L. Noto, Esq. 730 E. Durant Avenue, Suite 200 Aspen, CO 81611 J. Alston Gardner and Barbara Lee 39590. Highway 82 Aspen, C08161.1 and 3155 Roswcil Road, Suite 330 Atlanta, GA 30305 with copy to Patrick, Miller &Kropf, P.C. Attn: Paul L. Noto, Esq. 730 E. Durant Avenue, Suite 200 Aspen, CO 81611 9. The Water Service Agreement, as amended herein, remains in full force and effect. IN WITNESS WHEREOF, the parties hereto set their hands on the date and year above first written. Attest: APPLICANTS Archer Bishop, Jr. as owneY in joint tenancy ~ot 2a,Golf Co' J lston Gardner as owner in Dint tenancy of Lot 1, Goif Course ,/ ~. /~~~ Sandra Bishop as owner in joint tenancy of Lot 2, Golf Course Properties Lot Split as to of o I Golf Course Properties 7 I .533747 I VOS CAUDILL PITKIN COUNTY CO R 41.001/25D 0070011:48 JANICE K Final 1031(J~ Properties Lot Split Lot Split STATE OF ~~..~~`..~ ) COUNTY OF k~d~ ) SUBSCRIBED AND SWORN to before me this 13+-`' day of tla•~~.-~-~t~+=~- 2006 by Archer Bishop Jr. and Sandra Bishop, who personally appcared before me. WITNESS my hand and official seal. My con~Inission expires: -~-~--ti --~ ~Lc.c ~ ~ ~ ~ ~/ A W. N ary ublic ~ STATE ~~ OF .c TENlV~SSEE STATE OF ~ ~ o ) NC?TAt~Y ) ~ PUE3LIG ~ COUNTY OF ~ ) ~-M' COU~~I. SUBSCRIBED AND SWORN to before me this ~_ day of I~IOV~rn 17Cn., 2006 by J. Alston Gardner and Barbara Lee, who personally appeared before me. WITNESS my hand and official seal. My commis ' ' es: '~'~J~- ~ ~ , ~ 1 ~ ~Qa M. GgR~y~ ~.' apTAlgy ' ~ Notary Public :$ ~lsr~ ~. C~flrw~- N~'. AvB~~~ . ~~~ ~F COQ-~~~ 8 533748 Page: 1 of 12 01/25/2007 11:51 Final 103106 JANICE K VOS CgUDILL PITKIN COON?Y CO R 61.00 D 0.00 CITY OF ASPEN RAW WATER AGREEMENT This Raw Water Agreement is entered into this ~ day of V ~ ~'~a' , 200-by and between the City of Aspen, Colorado ("City"), a home rule municipality with its principal address at 130 South Galena Street, Aspen, CO 81611 and Sandra and Archer Bishop, Jr., and J. Alston Gardner and Barbara Lee. (Sandra Bishop, Archer Bishop, Jr., J. Alston Gardner and Barbara Lee are Herein referred to as "Customers.") WHEREAS, the City currently owns, operates and ^lailltailis in accordance with the laws of the State of Colorado and tlZe Charter, Code, policies, and ordinances of the City of Aspell, Colorado, the City of Aspen water system, which includes, among other things, water rights, decrees, structures slid facilities permitting delivery of raw water to various locations within and without the City limits; and WHEREAS, Customers own certain land outside the City limits, described as Lot 1 and Lot 2, Golf Course Properties Lot Split, according to the recorded Plats thereof in Plat Book 18 at Page 26, Plat Book 18 at Page 74, and Plat Book 19 at Page 98, Pitkin County, Colorado, and referred to in this Agreement as the "Subject Property;" and WHEREAS, in Case No. 2002CW42, Water Court, Water Division No. 5, Customers are seeking adjudication of changes of water rights, underground water rights, a storage right, and approval of a plan for augmentation (including water rights and contract rights to provide augmentation supplies), all of which are referred to in this Agreement as the "Customer Water Rights;" and WHEREAS, Customers receive municipal water service from the City pursuant to an extraterritorial water service agreement dated September 16, 1996, and recorded September 4,1997, with the Pitkin County Recorder at Reception No. 408086, and amended , 2006, and recorded (the "W ater Service Agreement"),and have agreed to convey the Customer W ater Rights to the City; and WHEREAS, Customers wish to convey to the City and lease back the Customer Water Rights pursuant to this Raw Water Agreement for irrigation and aesthetic uses on the Subject Property, as provided in this Agreement; and WHEREAS, this Raw Water Agreement is entered into in conformity with and subject to the laws of the State of Colorado and the Charter, Code, policies, ordinances, rules and regulation of the City; NOW THEREFORE, in consideration of the mutual promises contained herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 533748 Page: 2 of 12 01/25/2007 11:51 Final 10310 JANICE K VOS cAUDILL P[TKIN COUNTY CO R 61.00 D 0.80 1. Conveyance of Water Rights.Customers agree that upon entry of a final decree ofthe Customer Water Rights in Case No. 2002CW42, they will convey the Customer Water Rights to the City by quitclaim deed, free and clear of liens and encumbrances, for no additional consideration. The Customer Water Rights are specifically identified as follows: a. 5.75 acrc-feet/year of fully consumable water attributable to the Stapleton Brothers Ditch, decrced October 16, 1933 in CA 3000, Garfield County District Court, with an appropriation date of June 30, 1904, with consumptive use quantified in Case No. 99C W 306, W ater Court, W ater Division No. 5, on January 31, 2005. b. . l cfs of Stapleton Brotllel•s Ditch Enlargement alld Water Right, Priority No. 777, decreed November 5, 1.971 iIi CA 5884, Garfield County District Court, with an appropriation date of September 22, 1.960. c. Water rights available to Customers pursuant to Water Allotment Contract No. 456 with Basalt Conservancy District dated April 12, 2005, as amended October 11, 2005, which authorizes allotment of water in accordance with said contract in the amount of b.4 acre-feet per year. d. Bishop Well No. 1, located in the SE1/4, NE1/4, Section 11, Township 10 South, Range 85 West of the 6"' P.M., at a point approximately 2040 feet from the North section line, and 1240 feet from the East section line of said Section 11, in Pitkin County, permit no. 64155-F. e. Gardner/Lee Well No. 1, located in the SE1/4, NE1/4, Section I1, Township 10 South, Range 85 W est of the 6`h P.M., at a point approximately 2175 feet from the North section line, and 1625 feet from the East section line of said Section ll, in Pitkin County, permit no. 64985-F f. Bishop Pond, located in the SW 1/4, NE1/4, Section 11, Township 10 South, Range 85 W est of the b"' P.M., at a point approximately 2047.5 feet from the North section line, and 1483.5 feet from the East section line of said Section 1 1, in Pitkin County, with a capacity of .b acre-foot. Following conveyance to the City, and so long as the City owns the Customer Water Rights, the City shall be the applicant in all water court proceedings to maintain diligence or to make absolute the Customer Water Rights, and Customers shall assist the City in such proceedings by timely providing information necessary to maintain diligence and/or to make the Customer Water Rights absolute. Customers shall not oppose any such applications for finding of reasonable diligence or to make absolute the Customer Water Rights, although they may f11e statements of opposition in order to be informed of the course of the proceedings. Should Customers file statements of opposition for such purposes, they will promptly thereafter stipulate to entry of a decree upon the peliding application confirming diligence or making the water rights absolute. 2 533748 Pala: 3 of 12 01/2S/2007 S1:S1 JRNICE K VOS CRUDIL.L PITKIN COUNTY CO R 61.00 D 0.00 Fin~il 103106 2. Provision of Raw Water. The City will be the sole provider of raw water to the Subject Property. No additional supplies will be developed, purchased or appropriated for or used on the Subject Property without the prior agreement of all parties, and amendment of this Raw Water Agreement. Upott conveyance to the City of the Customer Water Rights, the City will lease, subject to the provisions this Raw Water Agreement, water produced by the Customer Water Rights to Customers for raw water irrigation and aesthetic purposes on the Subject Property. Said water shall be provided for use in accordance with the decree entered in Case No. 2002CW42 and all requirements of state water administration officials, provided, however, that the City shall not be required to provide water hereunder at such times as, and to the extent that, (l) state water administration officials determine that the water rights decreed in Case No. 2002CW42 ate out of priority and cannot be augmented in accordance with the augmentation plan, or (2) the City imposes restrictions on raw water deliveries iti accordance with raw water curtailment policies, which policies shall be no more restl-ictive on deliveries hereunder to the Subject PIoperty than City curtailment oI•dinances or policies applicable to outdoor treated watel• uses within the City. Should raw water deliveries need to be curtailed, either because of state administrative orders, or because the Ciry has imposed restrictions on raw water deliveries as described in the foregoing sentence, Customers agree to limit or curtail well withdrawals as required, and to limit or curtail diversions to storage, until Customers are notified that such raw water may again be used. The provisions of this paragraph shall not preclude the City from suspending raw water deliveries as provided in paragraphs 9 and 14. 3. Use of Raw Water on Subject Property. All raw water use on the Subject Property shall be in accordance with the decree entered in Case No. 2002CW42, and as further set forth herein. 'The Customers may use the raw water leased to them pursuant to this Raw W ater Agreement for irrigation of the existing currently-irrigated landscaping as shown on Exhibit A, which depicts the currently-irrigated areas, the ponds, water features, the areas not currently irrigated, and an area on Lot 2 where native vegetation is being installed {identified on Exhibit A as "Temporary Irrigation.") The area identified on Exhibit A as "Temporary Irrigation" may be irrigated until September 30, 2007, and shall not thereafter be irrigated. The City shall conduct an onsite inspection after September 30, 2007, to confirm that al] temporary irrigation systems have been disconnected and removed. The raw water herein provided may be used in accordance with the decree entered in Case No. 2002CW42 to fill the Bishop Pond for irrigation control, and for aesthetic, piscatorial, fire protection and recreation uses as provided in said decree. Other than the temporary irrigation in the area shown on Exhibit A, there will be no expansion of irrigation to areas not irrigated as of April 1, 2006, and not shown as "currently irrigated landscaping" on Exhibit A, and there will be no additional water features. There will be no cross-connections of the raw water irrigation system to the City's treated water system. Customers will be responsible for the proper installation, maintenance and testing of required backflow prevention devices, and for assuring that unprotected cross-connections, structural or sanitary hazards exist. 3 533748 01925/2007 il:~l Fi,ial 103106 JRNICE K VOS CRUDILL PITKIN COUNTY CO R 61.00 D 0.00 Customers' water systems (for both treated and raw water) will be available for inspection as provided in the Aspen Municipal Code, to authorized City representatives to determine whether cross-connections or other stntetural or sanitary hazards exist, to confirm that no treated municipal water is being used for outdoor irrigation or aesthetic purposes, to confirm that the irrigated landscaping is not expanded from the areas authorized for irrigation as shown on Exhibit A, and to confirm compliance with curtailment requirements. Upon reasonable request by the City, Applicants shall provide samples of their municipal water and their irrigation water to allow the City to confirm the source of water being used at a particular location, and to verify the absence ofcross-connection. 4. Structures and Facilities. Customers shall be and remain the owners of the wells, the Bishop pond structure, and all other structures and facilities necessary to utilize the Customer Water Rights, and shall be responsible for all operation, maintenance, repair and replacement of such structures and facilities, and for payment of all amounts due to Pitkin County for the 5.75 acre-feet offully-consumable water described in paragraph 1(a) above., all amounts due to the Walter Paepke Life Insurance Trust and Carole S. Seelen for the .1 cfs of the Stapleton Brothers Ditch Enlargement and Water Right described in paragraph 1(b) above, for all assessments and other amounts required to be paid to the Basalt Water Conservancy District pursuant to the Water Allotment Contract described in paragraph 1(c} above, and all amounts required to be paid for well permits and substitute water supply plans to enable use of the Customer Water Rights. Customers shall be solely responsible for the cost of constructing, cleaning, operating, maintaining, repairing and replacing the wells, Bishop pond, and all irrigation lines, sprinklers, and other structures and facilities which enable use of the raw water on the Subject Property. S. Term. This Agreement shall continue until terminated as provided in paragraph 14 below. b. Payment. Customers shall pay an annual charge for the delivery of raw water, based on the City's raw water delivery rates in effect at the time the water is delivered. The charge shall be billed to Customers by June 30 of each year in advance of the upcoming irrigation season. The charge shall be a flat fee based on the square footage or irrigated acreage. Payment shall be made to the City within 60 days of the billing date. Customers shall not be charged any additional lease payments. 7. Service Subject to the City Charter Codes Rules Re lations 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 standards, rules, policies ox 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 asset forth in Chapter $.40 and Chapter 25, provided, however that no such ordinances, rules, policies or regulations shall be applied so as to impose more restrictive curtailment obligations on Customers or their successors than are provided for in paragraphs 2, 9 and 14 of this Raw Water Agreement. 4 533748 03g2'S/2007 11:5! Fi,zal 103106 JANICE K V05 CAUDILL PITKIN COUNTY CO R 81.00 D 0.00 8. No Right to Reuse or SuccessivclyUse Water. Except as herein provided, Customers shall have no right to reuse or make a succession of uses of the water provided pursuant to this Raw Water Agreement. Customers agree that they do not, by this Raw Water Agreement, acquire any interest in water rights owned or controlled by the City, and that any claims they may have with respect to the delivery of water hereunder are strictly contractual rights as provided in this Raw Water Agreement. 9. Sus ension of Water Delive .The City shall Iiot be liable for failure to deliver water by reason of any unanticipated failure of the wells or other delively infrastlvcture, or if water cannot be lawfi~lly delivered in accordance with the decree in Case No. 2002CW42. As stated in paragraph 2 above, the City may also impose restrictions on raw water deliveries pursuant to this Raw Water Agreement, in accordance with raw water curtailment policies, which policies shall be no more restrictive on deliveries hereunder to the Subject Property than City curtailment ordinances or policies applicable to outdoor treated water uses within the City. The City may also suspend raw water deliveries pursuant to this Raw Water Agreement following notice of default and failure to cure as provided in paragraph 14 below. 10. lndemnification. As partial consideration for this Agreement, Customers agree to indemliify the City and hold it, its officials, agents and employees, harmless from any and all losses, injuries or claims of any kind whatsoever, including all costs of defense and attorneys fees, that may arise from Customers' use of the raw water leased hereunder, or Customers' operation, maintenance, repair, rehabilitation or replacement of structures or facilities belonging to or controlled by Customers or their agents, employees, or contractors, on or off of the Subject Property. At no time shall anything contained within this Raw Water Agreement be considered or interpreted to waive or diminish, in whole or in part, the rights or limitations bestowed upon the City by the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq., as amended, or any other law, nor shall the indemnification obligation hereunder cover claims or losses or damages for which the City would not be liable, should this indemnification provision not have been in existence. 11. Water Quality.' Customers acknowledge that the raw waterthat is subject to this Raw Water Agreement is untreated water, and that the City makes no guarantees or representations concerning the quality of the water provided, or its fitness for the purposes for which it is used, or for any particular purpose. 12. Disconnection of Irrigation System from Treated Water Systern; Cross-Connection Prevention. The irrigation system on the Subject Property has been disconnected from the Clty's treated water distribution system. From and after April 1, 2006, no treated water has been or will be used for irrigation or other outdoor uses on the Subject Property except as herein specifically provided. The irrigation system has been connected to the Bishop Well No.1,the Gardner/Lee Well No. 1, and/or the Bishop Pond. Customers will be responsible for assuring that there are no cross connections to the City water system at any time. The City shall have the right to make reasonable 5 533748 01/25/2007 17:51 Final 103106 JRNICE K VOS CAUDILL PITKIN COUNTY CO R 61.00 D 0.00 reClLleStS foI' a5SLlranCe that 110 CPOSS-COIlI]eCt10I] eX]StS, alld StiCi] asSUranCeS 511x11 be proVlded at Customers' cost. The City will not seek to recover from Customers any revenues foregone as a result of past treated water irrigation of the Subject Property that exceeded the amount authorized in the original Water Service Agreement prior to its amendment. 13. Obligations Consistent with Law. The parties agree, intend and understand that the obligations imposed by this Raw Water Agreement are only such as are consistent with the state and federal law. The parties further agree that if any provision of this Raw Water Agreement becomes, in its performance, inconsistent witl] state or federal law or is declared invalid, the parties shall either terminate this Raw Water Agreement and the Water Service Agreement or in good faith negotiate to ]nodify the Raw Water Agreement so as to make it consistent with the state or federal law, as the case maybe. 14. Default. If either the City or Customers default in the performance of their obligations hereunder, the non-defaulting party or parties shall have available all remedies at law or equity, including the right to specific performance. The following provisions shall apply: a. Default by Customers. (l) Non-Pa rnLlent. if Customers, or any of them, fail to make any payment hereunder when due, the City shall give notice of non- payment. Customers shall have fifteen (15) days from the date of notice within which to make payment. Thereafter, the City may suspend water deliveries hereunder until payment of all outstanding balances (including any applicable interest and late fee} has been received, and the City may, but need not, exercise any other rights available to it pursuant to the Code, or at law or equity, or pursuant to this Agreement, including but not limited to the right to place a lien on the Subject Property, the right to foreclose such lien, and/or the right to bring an action for damages for breach of this Agreement. (2) Other Breaches. If the Customers, or any of them, fail to comply with any other obligation pursuant to this Agreement, the City shall give notice of default. Such default must be cured within 45 days of the date of notice of default, provided, however, if such default cannot reasonably be cured within the initial 45-day period, an additional period, not to exceed 45 days shall be allowed for cure of the default. If a default as to which notice is given is not cured within the applicable period for cure, the City may suspend water deliveries 6 533748 Pafle: 7 of 12 01/25/2007 11:51 Firtctl 10310 JRNICE K VOS CRUDILL PITKIM COUNTY CO R 81.00 D 0.00 hereunder until the default is cured, and the City may, but need not, exercise any other rights available to it pursuant to the Code, or at law or equity, or pursuant to this Agreement, including but not limited to the right to bring an action for specific performance of this Agree- ment and/or an action for damages for breach of this Agreement. (3} Effect of Court Finding of Breach. If a final court determination is made that Custol~~ers or any of them have breached this Raw Water Agreement, such breach will also be a breach of the Water Service Agreement, and the City shall have the remedies available to it for breach of the Water Service Agreement, including suspensioli of treated water service and termination ofthe Water Service Agreement as therein provided. In addition, upon a final court determination that Customers or any of them have breached this Raw Water Agreement, the City may terminate this Agreement as provided in paragraph 15(c). b. Default by City. if the City fails to comply with any obligation pursuant to this Agreement, the Customers shall give notice of default. Such default must be cured within 45 days of the date of notice of default, provided, however, if such default cannot reasonably be cured within the initial 45-day period, an additional period, not to exceed 45 days shall be allowed for cure of the default. if a default as to which notice is given is not cured within the applicable period for cure, the Customers may, but need not, exercise any other rights available to them at law or equity, including but not limited to the right to bring an action for specific performance of this Agreement or an action for damages for breach of this Agreement. l 5. Termination. This Raw W ater Agreement shall continue until terminated. It may be terminated in the following manner: a. Termination by Agreement. This Raw Water Agreement may be terminated by mutual written agreement of atl parties upon tenors and conditions acceptable to all parties. b. Termination at Customers' Election. If Customers wish to terminate this Raw Water Agreement and the Water Service Agreement (both of which must be terminated if termination is elected pursuant to this paragraph 15.b), they shall provide written notice of termination, signed by all Customers or their successors in interest, to the City at least 30 days prior to termination. Upon expiration of said 30-day Iiotice period, Customers shall, at Customers' expense, promptly take all actions required by the City to disconnect the Subject Property from the City treated water distribution system. Upon such disconnection, the City shall reconvey the 7 533748 Pags: 8 of 12 01/26/2007 11:31 Fi1ICl~ 103106 JANICE K VOS CAUDILL PITKIN COUNTY CO R 61.00 D 0.00 Customer Water Rights (but not the Holden Ditch) to Customers by quitclaim deed, at no charge, and the City shall have no further obligation to provide raw or treated water scrvicc to the Subject Property. Customers shill be responsible for all costs and fees associated with such disconnection and all water charges owing as of the date of tem~ination. c. Termination as a Result of Customers' Default. If the City obtains a final court determination that Customers or any of them have breached any provision of this Raw Water Agreement, the City may give Notice of Termination, and this Agreement shall terminate seven days from the date of such notice. d. Termination U on Termination of Water Service A reement. This Raw Water Agreement shall terminate automatically upon ternunation of the Water Service Agreement without the heed for any Notice of Termination by the City. e. Ternination as a Result of City's Default. if the Customers obtain a final court determination that the City has breached any provision of this Raw Water Agreement, the Customers Inay give Notice of Termination, and this Raw Water Agreement shall terminate seven days from the date of such notice. f. Reconveyance upon Termination. Upon termination, the City shall reconvey the Customer W ater Rights (but not the Holden Ditch) to Customers by quitclaim deed, at no charge, without intervening impairment, loss or encumbrance caused by the City, and the City shall have no further obligation to provide raw water service to the Subject Property. Customers shall be responsible for all raw water charges owing as of the date of disconnection. 16. No Waiver or Rights or Remedies. Failure of a party hereto to exercise any right or remedy hereunder shall not be deemed a waiver of any such right or remedy and shall not affect the right of such party to exercise at some future time said right or remedy or any other right or remedy it may have hereunder. 17. Notice. All notices required to be given hereunder. shall be in writing, and shall be deemed given upon personal delivery or upon deposit in the United States mail, certified mail, return receipt requested, postage prepaid, properly addressed to the party to whom directed at its address shown below or at such other address as may be given by notice pursuant to this paragraph: City of Aspen Water Director, City of Aspen I30 South Galena Street Aspen, CO 816 ] ] Final 103106 533748 Pags: 9 of 12 01/25/2007 11:51 Wltll Copy t0 JpNiCE K VOS CRUDILL PITKIN COUNTY CO R 61 .00 D 0.00 City Attorney City of Aspen 1.30 South Galena Street Aspen, CO 8l b 11 Archer Bishop Jr. and Sandra Bishop P.O. Box l 1146 Knoxville, TN 37939 J. Alston Gardner and Barbara Lee 3155 Roswell Road, Suite 330 Atlanta, GA 30305 and 39600 Highway 82 Aspen, CO 81611 with copy to Patrick, Miller & Kropf, P.C. Attn: Paul L. Noto, Esq. 730 E. Durant Avenue, Suite 200 Aspen, CO 81611 and 39590 State Highway 82 Aspen, CO 81611 with copy to Patrick, Miller & Kropf, P.C. Attn: Paul L. Noto, Esq. 730 E. Durant Avenue, Suite 200 Aspen, C0 81611 l 8. Force Maieure. No party shall be held liable for failure to perform hereunder due to wars, strikes, acts of God, natural disasters, or other similar occurrences outside the control of such party. 19. Assignment. This Agreement may not be assigned without the written consent of the other party hereto, which consent shall not be unreasonably withheld. Notwithstanding the foregoing sentence, the rights and obligations of Customers hereunder will be deemed assigned and transferred to Customers' successors-in-interest to the Subject Property. 20. Entire Agreement. This Raw Water Agreement together with the Water Service Agreement constitutes the total integrated agreement among the parties regarding the subject matter hereof, and supersedes and controls all other prior and contemporaneous written and oral agreements and representations of the parties. 533?48 Aaye: 10 of iZ 01/2S/2007 11:51 JAMICE K VOS CAUDILL PITKIN COUNTY CO R 81.00 D 8.00 Fi~ral 10310b 21. Authority of Signatories. By signing this Raw Water Agreement, the parties acknowledge and represent to one another that all procedures necessary to validly contract and execute this Agreement have becn peI•formed and that the persons signing for each party have been duly authol•ized to do so. 22. Interpretation of Agreement. Neither the titles to this Raw Water Agreement and its paragraphs, nor the recitals appearing prior to paragraph 1 of this Raw Water Agreement shall be used to alter the meaning of this Raw W ater Agreement, and in the event of a conflict, the terms and conditions of the numbered paragraphs shall govern. 23. Binding Agreement• Recording: Covenant. This Raw Water Agreement is binding upon the parties hereto, their successors and assigns. This Raw Water Agreement shall be promptly recorded by the City, and shall constitute a covenant Iunning with the Subject Property. 24. Litigation. In the event either party is required to take legal action to enforce its rights under this Raw Water Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees and costs, including expert witness fees. The parties agree that the forum for any such litigation shall be the Pitkin County District Court or County Court. 25. 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. LN WITNESS WHEREOF, the parties hereto set their hands on the date and year above first written. Attest: ~D CUSTOMERS Archer Bishop, Jr. as owtle joint tenancy of Lot 2, Golf Properties Lot Split .~ Sandra Bishop as owner in joint tenancy of Lot 2, Golf Course Properties Lot Split lU 533748 Pape: it of 12 01/23/2007 11:51 JRNICE K VOS CRUDILL PITKIN COUNTY CO R 61,00 D 0.00 Final ,I~ lston Gardner as owner in Dint tenancy of Lot 1, Golf Course Properties Lot Split Split if Course Properties STATE OF "'rGe.lt~~<,~-~~,~ ) COUNTY OF l~o,c ) SUBSCRIBED AND SWORN to before me this /3~-`' day of NwF-r~+3 , 2006 by Archer Bishop Jr. and Sandra Bishop, who personally appeared before me. WITNESS my hand and official seal. ;`~A ~• ti My commission expires: /~ _~~- v - kc :.. NtV~SSEE ~" ~~TAHY otary Public .,~ _ ~.tiLIC ~~~ ,. STATE OF D } COUNTY OF ) SUBSCRIBED AND SWORN to before me this ~~ day of ~~(Q~QQdZ, 2006 by J. Alston Gardner and Barbara Lee, who personally appeared before me. WITNESS Iny hand and offlcial seal. My commissao 5. •... .yam ~ ' ~pTA/,~y ' ~ F:Kaicni 10 ~~ Notary Public ~l 533748 Pale: 12 of 12 01/28/2007 11:51 JRNICE K VOS CAUDILL PITKIN COUNTY CO R 61.00 D 0.00