HomeMy WebLinkAboutresolution.council.006-09RECEPTION#: 561701, 08106!2009 at
11:53:46 AM,
1 OF 2, R $11.00 Doc Code RESOLUTION
Janice K. Vos Caudill, Pitkin County, CO
RESOLUTION NO.
Series of 2009
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING AGREEMENTS BETWEEN AND AMONG THE CITY, THREE TREES LLC,
M.S. 4610 LLC AND WESTCHESTER INVESTMENTS, INC. FOR EASEMENTS AND
CONSTRUCTION AND REPAIR PROJECTS FOR THE SI JOHNSON DITCH.
WHEREAS, on September 22, 2008, the City Council approved Ordinance No. 29, Series
of 2008, on second reading, thereby approving an Amendment to Water Service Agreement,
authorizing provision of additional City water service to property owned by Three Trees LLC
located at 1 Toby Lane, in Pitkin County; and
WHEREAS, said Amendment to Water Service Agreement was contingent upon execution
and performance of a number of other agreements whereby Three Trees LLC and M. S. 4610 LLC
would provide certain easements and perform or pay for certain road construction and irrigation
system repairs to the Si Johnson Ditch; and
WHEREAS, the agreements providing for the easements, road construction and irrigation
system repairs have been negotiated and provided to City Council for review; and
WHEREAS, City staff has recommended approval ofthe agreements, which are identified
as the Master Agreement, the Articles of Incorporation and Bylaws of the Si Johnson Ditch
Company, the Si Johnson Ditch: Access Easement Agreement; and the Si Johnson Ditch Approach
Road Construction and Pipeline Repair Agreement; and
WHEREAS, City Council has had the opportunity to obtain such advice and information
as it deems appropriate and necessary regazding these agreements,
BE IT RESOLVED, by the City Council of the City of Aspen, that the Master Agreement,
the Articles of Incorporation and Bylaws of the Si Johnson Ditch Company, the Si Johnson Ditch:
Access Easement Agreement; the Si Johnson Ditch Approach Road Construction and Pipeline
Repair Agreement (collectively, "Agreements") are hereby approved. All City officials and
employees are hereby directed to take such actions as are necessary and appropriate to fulfill the
obligations of the City pursuant to the Agreements. The Mayor, City Manager, City Clerk and
the Water Director are hereby authorized and directed to execute the Agreements, and any related
documents necessary or desirable to effectuate the transactions provided for in the Agreements,
as contemplated by this Resolution, provided, that neither the Agreements nor any other
documents are authorized for execution until the City Attorney and any other attorney retained
by the City for this transaction are satisfied that legal concerns of the City have been properly
addressed.
Dated: c?Z~q~O~
-7~T-~
APPROVED by the City Council ofthe City ofAspen on th day of ,
2009.
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Mayor
Attest:
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City Clerk
F:\Client Files\Aspen\Three Trees WSA\resolution re agreements 2009.wpd
RECEPTION#: 561702, 08/06/2009 at
11:53:47 AM,
1 OF 7, R $36.00 Doc Code AGREEMENT
Janice K. Vos Caudill, Pitkin County, CO
MASTER AGREEMENT
Regarding Conveyance of Easement, Formation of Ditch Company, Transfer of
Water Rights, Pipeline Repair and Road Construction Project, and Amendment of
Water Service Agreement
THIS AGREEMENT (the "Master Agreement") is made and entered into this
day of 2009 by and between THREE TREES, LLC, a Colorado
limited liability com any ("Three Trees"), and M.S. 4610, LLC, a Colorado limited
liability company ("M.S. 4610"); the CITY OF ASPEN, COLORADO, a home rule
Colorado municipality (the "City"); and WESTCHESTER INVESTMENTS, INC.,
("Westchester") a Delaware corporation. All of the aforementioned parties may be
refen•ed to below collectively as the "Parties."
WHEREAS, the Parties are interested in confirming each Party's rights and
responsibilities, associated easements, and a management structure for the Si Johnson
Ditch, as well as certain associated agreements between Three Trees and the City
regarding domestic water service to a parcel of land owned by Three Trees;
WHEREFORE, in exchange for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, each of the Parties agrees to the following terms,
definitions, and conditions:
A. DEFINITIONS
1. "Component Agreement" or "Component Agreements" when used in this Master
Agreement means any or all of the five agreements referenced below in paragraphs B.1-5
and Exhibits A-F, attached hereto.
B. THE FIVE COMPONENT AGREEMENTS
1. Agreement to Execute Access Easement Agreement. Contemporaneously with
the execution of this Master Agreement, the City, M.S. 4610 and Three Trees,
respectively, hereby agree to execute the Si Johnson Ditch Access Easement Agreement
attached as Exhibit A.
2. Agreement to Create Ditch Companv. The City and Westchester hereby agree to
form the Si Johnson Ditch Company ("Ditch Company") with Articles of Incorporation
and Bylaws substantially in the form attached as Exhibits B, and C, respectively, which
will create and form the governing document for a mutual ditch company serving the City
and other water users holding shares, for use of the water rights decreed to and carried in
the Si Johnson Ditch. Westchester and Three Trees will be among those users holding
shares in the Ditch Company along with the City. It is anticipated that the Ditch
Company will then issue up to 5500 shares of capital stock, each share of which shall
correspond to 0.01 c.f.s. of the 5.5 c.f.s. decreed to the Si Johnson Ditch.
3. ~reement to Transfer Ditch Shares and Water Rights.
A. Issuance of Ditch Company Stock. Contemporaneously with all parties'
execution of this Agreement and attached Exhibits A-F, Westchester will quitclaim to
Three Trees and M.S. 4610 0.50 c.f.s of water decreed to the Si Johnson Ditch from
Westchester's present water right of 1.167 c.fs., at which point Westchester will retain
0.667 c.f.s. Thereafter, upon the formation of the Ditch Company, 1 share of stock will
issue to each Party for each 0.01 c.f.s. of Si Johnson Ditch water right owned by that
party-i.e. 4130 shares will issue to the City, 500 shares will issue to Three Threes and
M.S. 4610, and 670 shares will issue to Westchester. (The remaining 200 shares will be
allocated to the U.S. Forest Service, and will be issued to the U.S. Forest Service upon
request by U.S. Forest Service and payment of its pro-rata share of Ditch Company
assessments). Each party will retain ownership of its water rights decreed to the Si
Johnson Ditch, notwithstanding formation of the Ditch Company. The parties agree that
the Si Johnson Ditch water rights have been used to their full decreed amount, and the
parties further agree and acknowledge each other's proportionate ownership of Si
Johnson Ditch water rights and associated historical consumptive use. No party claims or
will claim an ownership interest in any other party's proportionate share, notwithstanding
any historical practices or future operational procedures that may be implemented with
regard to deliveries of the parties' respective interests.
B. Installation of Pipe in the Ditch. The parties hereto further agree and
acknowledge that, upon transfer of Si Johnson Ditch water rights to Three Trees and M.S.
4610, and execution of Exhibits A-F, M.S. 4610 may install a pump in the Si Johnson
Ditch on its property for the purpose of delivering a pro rata share of irrigation water to
the Three Trees and M.S. 4610 properties. Prior to installation of such pump, Three
Trees and M.S. 4610 will provide to the City for approval (which shall not be
unreasonably withheld), the plans for the pump installation, including the location at
which it will be placed and the design of the structure, the size of the structure, and the
pump ratings, so that the City can assure that the pump will not withdraw more than 0.5
cfs, and that it is properly sited so that it will not cause damage to the Si Johnson Ditch or
unreasonably interfere with maintenance of the Ditch. Following such approval by the
City, the parties agree that no additional permission of the other parties shall be required
to install the pump and commence irrigation notwithstanding any requirement that may
be contained in the bylaws regarding approval of lateral ditch diversion points(s) or
installation of structures in the Ditch. Three Trees and M.S. 4610 shall operate said
pump in accordance with the bylaws of the Ditch Company.
4. Agreement to Execute Construction Agreement. The City, individually or by and
through the Ditch Company, and M.S. 4610 and Three Trees, respectively, hereby agree
to execute the Construction Agreement attached as Exhibit D for the Approach Road
Construction Project and the Pipeline Repair Project, the descriptions and definitions of
which are set forth in the Construction Agreement and incorporated into this paragraph
by reference.
2
5. Acknowledgment of Execution of Amended Water Service Agreement. The
Parties acknowledge that M.S. 4610, Three Trees, and the City, respectively, have
executed the Amended Water Service Agreement attached as Exhibit E.
C. OTHER TERMS AND CONDITIONS
6. Binding Agreement. This Master Agreement is binding upon the parties who
have signed below, their successors and assigns, as well as the successors in interest to
the M.S. 4610 Property or the Three Trees Property, or any affected portion of those
properties, all of which will be subject to this Master Agreement and any of the five
Component Agreements then in effect.
7. Governine Law; Venue; Attorneys' Fees. This Master Agreement and the rights
and obligations of the parties to it shall be governed by and construed in accordance with
the laws of the State of Colorado. Venue for all actions arising under this Master
Agreement shall be Pitkin County, Colorado. In the event of litigation or arbitration
arising out of or connected to this Master Agreement, the party determined to be the
substantially prevailing party by a court or arbitrator shall be entitled to recover costs
incurred in pursuing such remedies, including expert witness fees and reasonable attorney
fees, in accordance with the court or arbitrator's order, to the extent permitted by law.
8. Incorporation of Recitals, Definitions and Exhibits. All of the recitals, definitions
and exhibits set forth above or attached are incorporated into the terms and conditions of,
and constitute part of, this Master Agreement.
9. Authorization of Si nag tares. The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Master Agreement have
been performed and that the persons signing for each party have been duly authorized to
do so.
10. Counterparts. This Master Agreement may be signed using counterpart signature
pages, with the same force and effect as if all parties signed on the same signature page.
IN WITNESS WHEREOF, the parties have executed this Master Agreement the
date and year first above written.
The Parties:
THREE TREES, LLC, a Colorado limited liability company
~,
W tvwti.. l ~ttat.~,C__
By: Warren B. Kanders, Manager
M.S. 4610, LLC, a Colorado limited liability company
By: ,Manager
CITY OF ASPEN, COLORADO, a
Home Rule City
Corporation and
WESTCHESTER INVESTMENTS, a Delaware Corporation
By: Joan Burton Jensen
The Parties:
THREE TREES, LLC, a Colorado limited liability company
By: Warren B. Kanders, Manager
NI.S. 4610, LLC, a Colorado limited liability company
~Nat,~ ~ ~u..a-~
By:__._ ,Manager
CITY OF ASPEN, COLURAllO, a Municipal Corporation and
Home Rule City I
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r
By: ~~ ~,c4~ qk~ C ~ I'~64-iu
Title: /V~ AYO
WEST ~ ES FR INVF.STMF,NTS, a Delaware Corporation
y: oai Burton ens
'tfe. ~ ce ~ ev.~ a,.c~ Secnetnay
STATE OF C 4 i,c~2AJG )
ss.
COUNTY OF ITrI N )
SUBSCRIBED AND SWORN to before me this~~ day of ~,~~ 2009,
by Warren B. Kanders, Manager of Three Trees, LLC, a Colorado limit d liability
company.
WITNESS my hand and official seal.
[SEAL] i--~ ~~ P~'~~ ~~
Notazy Public
My commission expires:
STATE OF C Gl,9G/~r}'J ~
COUNTY OF Y" f 7'C~ ~
THOMAS J. TODD
NOTARY PUBLIC
STATE OF COLORADO
sS. My Commission Expires 12/13/2012
SUBSC~jRIBED AND SWORN to before me this ~ day of Jti,i~ , 2009,
by Wa uv.~ /J. K~~kaz~~ S ,for M.S. 4610, LLC, a Colorado limited liability ompany.
WITNESS my hand and official seal.
[SEAL]
Notary Pu~bli7c'~
My commission expires:
THOMAS J. TODD
NOTARY PUBLIC
STATE OF COLORADO
My Commission Expires 12/7 g/P012
STATE OF COLORADO
COUNTY OF PITKIN
ss.
) O AAt of re me this L day of ~ 2009,
~/, I~~itfor the City of Aspen, Color do.
I TNESS my hand and official seal.
.~.A ~O V'
~j ~ ' [SEAL]
s~, ~UBV~~, P
9TFOFCO~-OP ~y ~NotaryPublic
commission expires: ~1
My Commission Expires
STATE OF F1an~da )
ss.
COUNTY OF f1,n~a,.h<de)
SUBSCRIBED AND SWORN to before me this day of 5andt..L~, 2009,
by Joan Burton Jensen, for Westchester Investments, Inc.
My commission expires: 9- q- 2012 ~ 1i11VLIA L.Ii. lYluv,.vav
= Comm1FOD0914937
j~ Expires 9N 112012
• .aT3s FbAde NateryAesn.. lnc
RECEPTION#: 561703, 08/08/2009 at
11:53:48 AM,
1 OF t5, R $76.00 Doc Code EASEMENT
Janice K. Vos Caudill, Pitkin County, CO ,
SI JOHNSON DITCH: ACCESS EASEMENT AGREEMENT
THISpAGREEMENT (the "Access Easement Agreement") is made and entered
into this (p day of 2009 by and between THREE TREES, LLC, a
Colorado limited liability company ("Three Trees"), and M.S. 4610, LLC, a Colorado
limited liability company ("M.S. 4610") (Three Trees and M.S. 4610 being individually
referred to herein by name or "Grantor," or together referred to as "Grantors"), and the
CITY OF ASPEN, COLORADO, a home rule Colorado municipality (the "City"),
Grantee.
WHEREAS, the City claims an interest in the water rights and ditch structure,
ditch easements and ditch access road rights in connection with the Si Johnson Ditch
("Ditch"), which was decreed by the Garfield County District Court in Case No. 3082 on
August 25, 1936, for 3.5 cubic feet per second (c.f.s.) with a priority number 422 and 2.0
cfs with priority number 435, with a point of diversion on the right bank of Castle Creek
at a point whence the quarter section corner on the North side of Section 13, Township ] 0
South, Range 85 West of the 6`h P.M. bears North 42° 15' East 1630 feet distant; and
WHEREAS, others also own water rights decreed to the Ditch; and
WHEREAS, the City has assumed responsibility for operation, routine
maintenance and major maintenance, repair and replacement of the Ditch on its own
behalf, and on behalf of other owners of the water rights decreed to the Ditch; and
WHEREAS, M.S. 4610 is the owner of a parcel of land more particularly
described in the attached Exhibit Easement "A" (the "M.S. 4610 Property") upon which
a portion of the Ditch and a portion of the Ditch Access Road are located, and upon
which a portion of the proposed Approach Road is to be, and will be located; and
WHEREAS, Three Trees is the owner of a parcel of land more particularly
described in the attached Exhibit Easement "B" (the "Three Trees Property") upon
which the proposed Approach Road is to be and will be located; and
WHEREAS, the parties to this Agreement and certain other owners of Si Johnson
Ditch water rights have agreed to incorporate a mutual ditch company ("Ditch
Company") to administer the operation, maintenance, repair, and replacement of the
Ditch, and the pro rata distribution of water to the stock holders in accordance with their
ownership interests in the Ditch Company; and
WHEREAS, the City desires to record this document to acknowledge and
establish easements on and across the Three Trees Property and the M.S. 4610 Property
in order for the City and the Ditch Company to access the Ditch for the purposes
hereinafter set forth;
NOW THEREFORE, in exchange for good and valuable consideration, the
receipt and sufficiency of which is acknowledged, Grantors hereby agree to grant and
convey certain easements and access rights on their respective properties on the terms
and conditions provided below:
A. DEFINITIONS
1. "Approach Road" when used in this Access Easement Agreement means a non-
exclusive easement 20' in width, being l0 feet on either side of a centerline running in a
grade and in an alignment capable of supporting and accommodating construction vehicle
travel by a tandem dump truck and other similar equipment (being approximately 8 feet
wide, 25 feet long, and weighing up to 54,000 pounds with a full load) from the driveway
of the Three Trees Property and then hence across the Three Trees Property in order to
allow vehicular access to ajunction point with the Ditch Access Road (as defined below)
on the M.S. 4610 Property.
a. Two approximate altemative locations of the Approach Road are
identified on the attached Exhibit Easement C, and within a reasonable time
after the execution of this Access Easement Agreement and the construction of
the Approach Road in one of these locations the centerline of the as-built road
will be surveyed and legally described and the survey and legal description will
be appended to this Access Easement Agreement as Exhibit Easement D and
recorded as an addendum to this Access Easement Agreement. At such time, the
City and Ditch Company shall quit claim and convey to Three Trees and M.S.
4610, and thereby vacate, the easement for the unused alternative location of the
Approach Road, which deed shall be recorded along with the addendum to this
Access Easement Agreement.
b. Although present plans for construction of the Approach Road may
provide for construction of portions of the road with a width less than 20' within
the Approach Road easement, the width of the easement shall remain at 20'
notwithstanding construction of a narrower road.
c. The easement rights herein granted with respect to the Approach Road
shall also include a grant of anon-exclusive easement for ingress and egress on
and across Three Trees' driveway from the Three Trees' property line abutting
Toby Lane to the Approach Road that is to be constructed. This portion of the
Approach Road easement will be located on the as-built driveway for the Three
Trees residence, which shall be about 16' wide and aligned so as to accommodate
access by a tandem dump truck. When construction of the driveway and
Approach Road have been completed, the portion of the Approach Road easement
from the Three Trees' property line abutting Toby Lane to the Approach Road at
the end of the driveway will be surveyed and included as an amendment to the
survey and legal description as part of Exhibit Easement D. Thereafter, although
Three Trees or its successors may subsequently relocate or reconfigure the
driveway access from Toby Lane to the residence upon the Three Trees Property,
any such alternate locations or configurations shall continue to be capable of
providing access to the top of the Approach Road with a tandem dump truck (or
other similar construction vehicles) in accordance with the terms of this
Agreement, and upon completion of any relocation the Ditch Company shall be
provided with a new survey depicting the amended location of the new driveway
access.
2. "Ditch Access Road" when used in this Access Easement Agreement means a
non-exclusive easement 12' in width, being 6 feet on either side of a centerline running in
a uniform grade and capable of supporting and accommodating construction vehicle
travel, which centerline runs roughly along the existing road (formerly a County road)
that has historically been used to access the Ditch, and which runs from South Seventh
Street to the existing headgate of the Si Johnson Ditch, across the M.S. 4610 Property and
other properties.
a. The approximate location of the Ditch Access Road is identified on the
attached Exhibit Easement C and within a reasonable time after the execution of
this agreement, the Ditch Access Road on the MS 4610 Property will be surveyed
and legally described and the survey and legal description will be appended to this
Access Easement Agreement as Exhibit Easement D and recorded as an
addendum to this Access Easement Agreement.
b. The present condition of the road base within the Ditch Access Road
Easement may be less than 12' in width but this in no way changes the easement
or precludes future development or rehabilitation of that road to fill the entire 12'
width of the Ditch Access Road Easement.
3. "Ditch" when used in this Access Easement Agreement means the Si Johnson
ditch itself, the easement alongside of the ditch, and any headgate structure, cutting,
pipeline, support, retaining wall, cable, tie, or related ditch or pipeline infrastructure on
the Si Johnson Ditch, including any item fitting this description that is added, built,
placed, or replaced in the future.
4. "Staging Area" when used in this Access Easement Agreement means the area
located between the Quasha boundary line and the toe of the slope on the M.S. 4610 and
Three Trees properties, identified and depicted by highlighting on the attached Exhibit
Easement C. W ithin a reasonable time after the execution of this agreement, the Staging
Area on the Three Trees Propety and the MS 4610 Property will be surveyed and legally
described and the survey and legal description will be appended to this Access Easement
Agreement as Exhibit Easement D and recorded as an addendum to this Access
Easement Agreement.
5. "Major Repairs" when used in this Access Easement Agreement means major
maintenance, or other improvement, repair or replacement work to the Ditch, the
Approach Road or the Ditch Access Road where foot access would not be feasible, cost-
effective orpractical, in the Ditch Company's reasonablejudgment, for the work to be
performed. Major Repairs include, but are not limited to, repairs that require use of
motor vehicles or heavy equipment or the transportation of heavy materials, pipeline
replacement, headgate replacement, utilizing motorized equipment when necessary to
clean and remove heavy sediment buildup in the Ditch and repair of significant damage
to the Ditch, Ditch Access Road or Approach Road, or other similar work where foot
access and manual labor would not be feasible, cost-effective or practical, in the Ditch
Company's reasonable judgment, to perform the work. Multiple Major Repairs are
contemplated and allowed under this Access Easement Agreement, provided that such are
not anticipated more than occasionally every few or more years. Major Repairs shall not
include ordinary daily or weekly maintenance, ditch walking and monitoring, or other
routine minor repairs of the Si Johnson Ditch, related infrastructure, or the access or ditch
easements themselves, all of which activities are referred to herein as "Routine
Operations."
B. TERMS AND CONDITIONS
1. Grant of Easement Approach Road and Ditch Access Road for Major Repairs.
M.S. 4610 and Three Trees, respectively, hereby grant and convey to the City non-
exclusive easements and rights of way on and over two proposed alternate locations for
the Approach Road and the surveyed location of the existing Ditch Access Road for
access to the Ditch for Major Repairs (provided, however, that the scope of the Approach
Road easement shall not include use for Routine Operations). This grant of easement
shall run with the land for the benefit of the City, and shall be binding upon and inure to
the benefit of the City, and its successors and assigns. The parties expressly acknowledge
and agree that this Access Easement Agreement does not define or limit:
a. any easement rights in, on or alongside the Si Johnson Ditch,
notwithstanding the use of the term "Ditch" as it is defined for purposes of this Access
Easement Agreement;
b. any easement rights, access rights or other rights relating to any ditch,
structure or water rights other than the Si Johnson Ditch; or
c. any easement rights, access rights or other rights regarding the Ditch
Access Road on lands other than the M.S. 4610 Property and the Three Trees Property.
Upon construction of the Approach Road within one of the two alternate locations, as set
forth in the Construction Agreement between Three Trees, M.S. 4610, the City and
Westchester Investments, Inc. date ~~ -~'~ ,the City and the Ditch Company
shall vacate and abandon the portion of e Approach Road easement within whichever
alternate easement location shown on Exhibit Easement C is not utilized.
2. Use of Approach Road and Ditch Access Road on M.S. 4610 Property for Maior
Repairs. Vehicles and other motorized and non-motorized equipment may be used on the
Approach Road and the Ditch Access Road on the M.S. 4610 Property for purposes of
Major Repairs. Workers and equipment may be deployed from portions of the Ditch
Access Road to the repair site by descending the slope between the Ditch Access Road
and the Ditch. M.S. 4610 agrees that such deployment is within the scope of the City's
rights under this Access Agreement and grants an easement over the intervening slope for
those purposes. Use of the Approach Road and the Ditch Access Road on the M.S. 4610
Property for Major Repairs is also subject to the provisions of subparagraphs B.4.a.
through d, below. The Approach Road on the M.S. 4610 Property may not be used for
Routine Operations.
3. Use of Approach Road on Three Trees Property for Major Repairs. Vehicles and
other motorized and non-motorized equipment may be used on the Approach Road on the
Three Trees Property for purposes of Major Repairs, on the conditions set forth in
paragraph 4 below. The Approach Road on the Three Trees Property may not be used for
Routine Operations.
4. Conditions of Use of Approach Road and Ditch Access Road for Maior Repairs.
a. The City shall provide the affected Grantor(s) with at least 14 days
notice of non-emergency Major Repairs to be undertaken and the estimated time
of completion. In the event of an emergency, the City may undertake Major
Repairs as it deems necessary to properly resolve the emergency situation, and
need only provide notice in accordance with subparagraph B.8.b, below.
b. Major Repairs will be performed in a workmanlike manner and the
City shall complete such Major Repairs within a reasonable time, absent
extenuating circumstances outside of the City's reasonable control or events of
force majeure.
c. Vehicles and other equipment may remain on the Approach Road
or Ditch Access Road as needed during the course of the Major Repairs. Any
materials, tools, equipment or vehicles stored temporarily on the Ditch Access
Road or the Approach Road during Major Repairs shall be stored neatly, and
removed promptly upon completion of the Major Repairs.
d. After completion of Major Repairs, the City shall, if necessary,
grade the surface of the Approach Road and the Ditch Access Road so that they
remain usable for the easement purposes herein described, and the City shall re-
seed the surface with native grasses similar to grasses that may have been
destroyed by the Major Repair project. The City shall not be required to restore or
replace any landscaping, trees, bushes, brush, or gardens on the Approach Road or
the Ditch Access Road, nor any boulders, structures or paving on the Approach
Road or the Ditch Access Road, the parties agreeing that Grantors will not place
such obstructions on the Approach Road or the Ditch Access Road, and if
Grantors, their contractors or agents, should place or permit such obstructions on
the Approach Road or the Ditch Access Road, such obstructions may be removed
at Grantors' cost. Notwithstanding the foregoing the City acknowledges that the
portion of the Approach Road easement that crosses the Three Trees driveway
will be paved, and the City will use reasonable efforts to avoid damage or
destruction to the driveway.
e. Neither the Approach Road nor the Ditch Access Road will be
used for purposes unrelated to ditch maintenance and repair as herein set forth.
5
Neither the Approach Road nor the Ditch Access Road will be used for general
public purposes or recreational access.
f. Notwithstanding the foregoing, if the Approach Road itself is
initially constructed by the City, the City shall have no liability or responsibility
for any damage to landscaping, structures, paving, or other amenities that may be
disturbed as a result of the City's initial construction of the Approach Road,
provided, however, that the City shall make reasonable efforts to avoid damaging
landscaping, structures, paving or other amenities located outside of the
Approach Road easement, and shall comply with the provisions of subparagraphs
(a) - (d) in the initial construction of the Approach Road itself. Likewise,
although present plans for construction of the Approach Road provide for
construction of portions of the road with a width of less than 20' within the
Approach Road Easement, the parties understand that cut and fill construction
may be necessary to construct the upper portion of the Approach Road near the
driveway on the Three Trees Property, and that these cuts and fills may physically
extend beyond the 20' easement width. As such, if the City constructs the
Approach Road, it shall have a temporary construction easement that extends
beyond the 20' width of the Approach Road Easement to the extent reasonably
necessary to construct the Approach Road. This temporary construction easement
shall terminate upon completion of the initial construction of the Approach Road,
but any necessary cuts or fills for this purpose may remain in place and be
replaced or repaired by the City in the future if necessary to preserve the integrity
of the Approach Road.
5. Additional Grant of Easement• Ditch Access Road for Routine Operations. M.S.
4610 confirms, grants and conveys to the City anon-exclusive easement and right of way
on and over the Ditch Access Road on the M.S. 4610 Property for access to the Ditch for
Routine Operations, in addition to the easement for Major Repairs herein granted.
Workers and equipment may also cross the M.S. 4610 Property from the Ditch Access
Road to reach the Ditch for Routine Operations, and such crossing of the M.S. 4610
Property is within the scope of the City's rights under this Access Easement Agreement,
and M.S. 4610 grants an easement over the intervening lands for those purposes. These
easement rights for Routine Operations are not limited by the provisions of subparagraph
B.4 a-d above.
6. LiabilitXto Others. Each party and the Ditch Company shall be responsible for
any and all claims, of whatever sort, including attorneys fees, arising out of or in
connection with that party or entity's use or occupation of the Approach Road or the
Ditch Access Road. Additionally, to the extent allowed by law, the City and the Ditch
Company agree to defend and indemnify Three Trees and M.S. 4610 against any claims
arising out of the City or Ditch Company's use of the easements described in this
Agreement, and agree to immediately discharge any liens placed on the Three Trees
Property or the M.S. 4610 Property by any person employed by the City or Ditch
Company to perform work on these easements or the Ditch. To the extent allowed by
law, this obligation to indemnify shall include the responsibility to pay any reasonable
attomeys' fees or costs incurred by Three Trees or MS 4610 in defense of any such
6
claim. But, nothing in this Access Easement Agreement will be construed to abrogate or
diminish any protections and limitations afforded to the City by the Colorado
Governmental Immunity Act, C.R.S. § 24-10-1O1 et seq. as amended, or other law in
defense of any claim by anyone who is not a party to this Construction Agreement or the
authorized assignee of a party to this Agreement.
7. Allowed uses of easements by servient landowners. The easements described
herein shall be non-exclusive. The servient landowners, Three Trees and M.S. 4610,
shall have the right to use lands within these easements, consistent with this Access
Easement Agreement, for any purposes that do not unreasonably impede or prevent
authorized uses of the easements described herein by the City. However, should Three
Trees or MS 4610 choose to construct irrigation pipelines, electric lines or related
facilities ("irrigation facilities") within these easements for the purposes of delivering
water to the Tree Trees or M.S. 4610 Properties from the Si Johnson Ditch, the parties
agree that the City shall not be liable for any damages to such irrigation facilities
occasioned during authorized usage of these easements by the City, and that in the event
of any such damage to the irrigation facilities, Three Trees or M.S. 4610 shall bear the
cost of any necessary removal, repair or replacement of such irrigation facilities.
8. Notices. All notices required to be given shall be deemed given upon deposit in
the United States mail, first class postage prepaid to:
a. Addresses:
M.S. 4610 at the address of the property owner of the M.S. 4610
Property as shown in the records of the Pitkin County Assessor,
ii. Three Trees at the address of the property owner of the Three
Trees Property as shown in the records of the Pitkin County
Assessor,
iii. City of Aspen or Ditch Company c/o City Attorney, City of Aspen,
130 South Galena Street, Aspen, Colorado 8161 1.
b. Notice In Event of Emer eg ncy. Notwithstanding the foregoing, in the
event the City uses the Approach Road in order to respond to an
emergency, the City shall make reasonable efforts to provide advance
notice to the affected Grantor or Grantors by telephone, facsimile or
electronic mail, provided that the affected Grantor has provided such
contact information to the City, and may proceed without notice if,
despite its reasonable efforts, it is unable to contact the affected Grantor,
or if the affected Grantor has not provided appropriate contact information
to the City to allow notice in the manner set forth in this subparagraph. If
the City is unable to provide advance notice as herein provided, it shall
provide notice of such emergency use of the Approach Road after the fact.
c. Chan es. Any party may change its address or contact information by
notice to the others given pursuant to subparagraph B.8.a.
9. Binding Agreement -Recording. This Access Easement Agreement is binding
upon the parties who have signed below, their successors and assigns, and any sale of the
M.S. 4610 Property or the Three Trees Property, or any portion of those properties, will
be subject to this Access Easement Agreement. This Access Easement Agreement will
be recorded with the Pitkin County Clerk and Recorder, and will impose an easement and
covenants running with the land upon the M.S. 4610 Property and the Three Trees
Property.
10. Assignment to Ditch Company. Upon formation of the Ditch Company, the City
shall assign all of its rights and obligations under this Access Easement Agreement to the
Ditch Company, and the Ditch Company shall accept such assignment, by completing the
Assignment of Rights and Obligations set forth at the end of this Easement Agreement.
Grantors hereby consent to any such assignment. The City and the Ditch Company may
not otherwise assign its rights and obligations under this Access Easement Agreement
without the Grantors' written consent.
11 Governing Law• Venue Attorneys' Fees. This Access Easement Agreement and
the rights and obligations of the parties to it shall be governed by and construed in
accordance with the laws of the State of Colorado. Venue for all actions arising under
this Access Easement Agreement shall be Pitkin County, Colorado. In the event of
litigation or arbitration arising out of or connected to this Access Easement Agreement,
the party determined to be the substantially prevailing party by a court or arbitrator shall
be entitled to recover costs incurred in pursuing such remedies, including expert witness
fees and reasonable attorney fees, in accordance with the court or arbitrator's order.
12. Incorporation of Recitals Definitions and Exhibits. All of the recitals, definitions
and exhibits set forth above or attached are incorporated into the terms and conditions of,
and constitute part of, this Access Easement Agreement.
13. Authorization of Signatures. The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Access Easement
Agreement have been performed and that the persons signing for each party have been
duly authorized to do so.
14. Counterparts. This Access Easement Agreement may be signed using counterpart
signature pages, with the same force and effect as if all parties signed on the same
signature page.
IN WITNESS WHEREOF, the parties have executed this Access Easement
Agreement the date and year first above written.
8
Grantor:
THREE TREES, LLC, a Colorado limited liability company
G~t~.~c,~.. r~~
By: Warren B. Kanders, Manager
Grantor:
M.S. 4610, LLC, a Colorado limited liability company
(iyt'~i,c,~ I}Zu.,d~-
By: ,Manager
Grantee:
CITY OF ASPEN, COLORADO, a Municipal Corporation and
Home Rule City
A
J '.~
APPROVE AS TO {FORM:
C' - -
it ~ ~ ~e t . ~ - ---
Attorney r Grantors Three Trees, LLC
Attorney for Grantor M.S. 4610, LLC
A TCi Attorn y
9
STATE OF C V ~ li RI~7JZ )
ss.
COUNTY OF ~~ ~ ~'U )
~p
SUBSCRIBED AND SWORN to before me this ~ day of J w , 2009,
by Warren B. Kanders, Manager of Three Trees, LLC, a Colorado limit d liability
company.
WITNESS my hand and official seal.
[SEAL] ~ .~ ~J ~~ /'
,~ "~7~"'
Nota i.EY~1R......-~...
My commission expires: -~+19P,~gS J. TODD
NOTARY PUBS IC
STATE OF COLORADO
STATE OF L pLC~~~c ) MyCommiss~on Expires 1?J73/2012
) SS.
COUNTY OF %~ k/N )
SUB~C BED AND SWORN to before me this ~ day of~~'7 , 2009,
by ~VrJi ~- • ~...~e ~! ,for M.S. 4610, LLC, a Colorado limited liability company,
Grantor.
THOMaSJ.TODD
WITNESS my hand and official seal. NOTARY PUBLIC
STATE OF COLORADO
[SEAL]
My commission expires:
STATE OF COLORADO
My Commission Explra@ 12/1
ss.
COUNTY OF PITKIN )
' S B ~ D SWORN to fore a this I day of~b ~ 2009,
by i , as __~~ of the City f Aspen, olorado,
Grantee.
WITNESS my hand and official seal.
~~
n ~„~ Notary Public
expires: lN4,
10
~~
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
THIS ASSIGNMENT is made this day of~I2tC, 2009, by and between
the City of Aspen, a Colorado home rule city ("Assignor"), and the Si Johnson Ditch
Company, a Colorado non-profit corporation ("Assignee"):
WITNESSETH, that for valuable consideration in hand paid by the Assignee
to the Assignor, receipt of which is hereby acknowledged, the Assignor
hereby assigns, conveys and transfers to the Assignee all of its right, title and
interest in and to the Approach Road and Ditch Access Road Easements for the Si
Johnson Ditch described in the foregoing Access Easement Agreement, and the Assignee
hereby accepts such assignment and shall henceforth assume all rights and obligations of
Assignor pursuant to said Easement Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Assignment on the day and year first above written.
ASSIGNOR:
CITY OF ASPEN, COLORADO a Municipal
Corporation and Home Rule City
_lo-a9
By:
ATTEST:
v
ASSIGNEE:
SI JOHNSON DITCH COMPANY
a Colorado non-profit corporation
By:
President
ATTEST:
STATE OF COLORADO
COUNTY OF PITKIN
by
ss.
B C IB D AND SWORN t ore e this day of ~~ 2009,
~~ , as ~ of the City of spen, Co rado.
land and official seal.
R I~ i Notary Public
expires:
>O )
ss.
SUBSCRIBED AND SWORN to before me this day of , 2009,
by , as President of the Si Johnson Ditch Company.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
12
I~Candltloll EtpfeY 0912rJZ00i
COUNTY OF PITKIN
EXHIBIT EASEMENT A
MS 4610 PROPERTY
the portion of unpatented U.S. Mineral Survey No. 4610 lying
within Section 13, Township 10 South, range 85 West of the
Sixth P.M., as described in Correction Quit Claim Deed
recorded May 10, 1995 in Book 780 at Page 529
County of Pitkin, State of Colorado
13
EXHIBIT EASEMENT B
THREE TREES PROPERTY
Lot 2, Hefner Subdivision
according to the plat thereof recorded
April 15, 1985 in Plat Book 17 at Page 11
County of Pitkin, State of Colorado
14
EXHIBIT EASEMENT C
~F. ~`Y f`~e. FS'~ g; i
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e'F a sgg JFB®Ai'S£}}Qa it°s9 ~, e,~j: pp
.IN, 1 ~>;3~iFre~3 a{k]!°.~'i ~i:9# Bl F~
RECEPTION#: 561704, 08!0612009 at
11:53:49 AM,
~ of 6, R $31.00 Doc Code ART INC
Janice K. Vos Caudill, Pitkin County, CO
ARTICLES OF INCORPORATION
OF
SI JOHNSON DITCH COMPANY
The undersigned natural persons, being of the age of more than twenty-one years, acting
as incorporators of a corporation under the Colorado Revised Nonprofit Corporation Act
(Articles 121 - 137 of Title 7, C.R.S.) and as a special purpose corporation under C.R.S. § 7-42-
101 et seq., as amended, pertaining to mutual ditch and reservoir companies, do hereby adopt the
following Articles of Incorporation.
I. NAME
The name of the corporation is the Si Johnson Ditch Company.
II. DURATION
The period of duration of the corporation is perpetual.
III. PURPOSES
The purposes for which the corporation is organized are as follows:
1. To operate and maintain the existing Si Johnson Ditch structures, rights of way,
headgate(s), intakes, flumes, spillways, pipelines, culverts and other appurtenances. In
this connection, the following information is specifically set forth as required by C.R.S. §
7-42-101(1) regarding the existing Si Johnson Ditch and its structures:
a. The Si Johnson Ditch, as decreed in Civil Action No. 3082 on August 25,
1936, in the Garfield County District Court diverts water from Castle Creek,
tributary to the Roaring Fork River, tributary to the Colorado River, in Pitkin
County, Colorado
b. The decreed headgate of the Si Johnson Ditch is located on the right bank
of Castle Creek, at a point whence the quarter section corner on the North side of
Section 13, Township 10 South, Range 85 West of the 6`h P.M. in Pitkin County,
Colorado, bears North 42° 15' East 1630 feet distant. The current headgate for the
Si Johnson Ditch is a concrete structure, and this headgate, as well as any other
headgate at which the shareholders shall be lawfully permitted to divert water for
beneficial use, delivers water from Castle Creek to the Si Johnson Ditch for the
benefit of the owners of the water rights decreed to the Si Johnson Ditch.
c. The Si Johnson Ditch was decreed for irrigation, and has two decreed
priorities: Priority No. 422 decreed for 3.5 cfs with an appropriation date of
January 10, 1926, and Priority No. 435 decreed for 2.0 cfs with an appropriation
date of May 1, 1932. The foregoing water rights are referred to in these articles as
the Si Johnson Ditch Water Rights.
d. The line of the ditch, which may be amended from time to time, is
substantially as shown on the attached copy of the Ditch Map filed with the
Colorado State Engineer on December 27, 1926, and is described in the Ditch
Claim Statement filed in Civil Action No. 3082 as follows.
The general course of said ditch is as follows: Beginning at the point
above designated as the location of the headgate thereof and running
thence in a general northerly direction...the length of the ditch is about
6,184 feet.
e. Stockholders shall be permitted to carry the Si Johnson Ditch Water
Rights in the ditch structure, and the water diverted into said ditch is to be used
for the decreed purpose of irrigation.
2. To construct, operate, maintain, repair and replace the existing ditch, including
the piped portions thereof, as the corporation shall deem to be in the best interests of the
corporation and its stockholders, provided, however, that the corporation shall not receive
and hold title any of the ditch structures and appurtenances, or to any pumps which may
convey water diverted under the Si Johnson Ditch Water Rights away from or out of the
Si Johnson Ditch, nor is it to receive or hold title to any ponds or irrigation detention or
control structures which detain water decreed to the Si Johnson Ditch Water Rights, nor
shall the corporation have or accept any liability for any damage or injury arising from or
related to the existence of any element or structure within or connected to the Si Johnson
Ditch that is not necessary for delivery of water to the owners or authorized users of the
Si Johnson Ditch Water Rights, including but not limited to any aesthetic features or
other structures owned, installed and/or maintained by owners or authorized users of the
Si Johnson Ditch Water Rights.
3. To engage generally in the business of operating and maintaining the Si Johnson
Ditch structures and appurtenances for the purpose of transporting water from the source
to the owners and authorized users of the Si Johnson Ditch Water Rights for irrigation
purposes;
4. To contract with and borrow money from the United States of America, any
federal agency, entity or corporation, the State of Colorado, any state agency, entity or
corporation, or any other public entity, or any private corporation or individual, or,
without limitation, any other source for the purpose of constructing, operating,
maintaining, repairing and replacing the Si Johnson Ditch and related infrastructure, and
allowing utilization of the Si Johnson Ditch Water Rights, and to execute bonds, notes
and other evidences of indebtedness and secure the same by mortgages, deeds of trust, or
other instruments constituting a lien upon all or any part of the real or personal property
of the corporation, for the purpose of constructing, operating, maintaining, repairing and
replacing the Si Johnson Ditch and related infrastructure, and allowing utilization of the
Si Johnson Ditch Water Rights;
5. To acquire, by purchase, lease, contract, assignment, exchange, condemnation,
appropriation, or otherwise, reservoirs and dams, reservoir and dam rights, water and
water rights, rights of way, easements, use permits, franchises, privileges, priorities,
headgates, measuring boxes, valves, flumes, aqueducts, and other irrigation works,
appliances, equipment and machinery, and other real property and personal property and
interests therein, necessary for the construction, maintenance, operation, repair and
replacement of the Si Johnson Ditch and related infrastructure and utilization of the Si
Johnson Ditch Water Rights, and to sell, lease, mortgage, encumber, assign, pledge or
otherwise convey or dispose of all or any part of such property as appropriate to allow the
corporation to continue to reasonably and properly construct, operate, maintain, repair
and replace the Si Johnson Ditch and related infrastructure and to facilitate utilization of
the Si Johnson Ditch Water Rights, provided, however, that nothing herein gives the
corporation a right encumber the Si Johnson Ditch Water Rights or the ditch structure,
equipment or appurtenances;
6. To do or perform any act or thing permitted or authorized by the provisions of the
Colorado Corporation Code (as applicable to this corporation), the Colorado Revised
Non-Profit Corporation Act, and the provisions of Article 42 of Title 7, C.R.S., as
amended, pertaining to ditch and reservoir companies, and not prohibited by these
Articles of Incorporation;
7. To reasonably protect its stockholders from liability arising from the operation of
the Si Johnson Ditch structure and appurtenances, and diversion and beneficial use of the
Si Johnson Ditch Water Rights.
IV. STOCK
1. Authorized Shareholders and Stock Issuance. Shares of stock shall be authorized
and issued in accordance with the corporation's bylaws, provided, however, that such shares
shall be issued in proportion to each stockholder's respective ownership interest in the Si
Johnson Ditch Water Rights. Only persons or entities having an ownership interest in the Si
Johnson Ditch Water Rights may be or become stockholders of the corporation, although the
water rights owned by such persons or entities will continue to be owned by such persons or
entities, and will not be conveyed or transferred to the corporation. Owners of the Si Johnson
Ditch Water Rights need not be stockholders, but will be assessed their pro rata share of the Si
Johnson Ditch operation, maintenance, repair and replacement costs incurred by the corporation.
Delivery of the two priority water rights adjudicated for the Si Johnson Ditch (Priority Nos. 422
and 435) shall be allocated to owners of the Si Johnson Ditch Water Rights in pro rata proportion
based on each owner's interest in the Si Johnson Ditch Water Rights, whether or not such owner
is a stockholder.
A corporation or other entity or a municipality may own shares of stock in the
corporation, and an individual representative of such stockholder shall be entitled, on behalf of
the stockholder, to vote and hold office on behalf of such stockholder irrespective of the fact that
such individual representative is not himself or herself a stockholder of the corporation.
2. Voting. Each share of stock issued by the corporation and fully paid as to
assessments shall be entitled to one vote at any meeting of stockholders or on other matters as to
which a vote of the stockholders is permitted or required. Cumulative voting of shares of stock
of the corporation is not authorized. At a duly noticed and held meeting of stockholders, a
quorum shall be 51% of the eligible shares, and, unless otherwise stated herein or in the bylaws,
the affirmative vote of a majority of the quorum at such meeting shall be the action of the
stockholders. Notwithstanding the foregoing, the affirmative vote of stockholders owning at
least seventy-five percent (75%) of eligible shares shall be required to add to, amend or repeal
any of these Articles of Incorporation. Written notice of the proposal to add to, amend or repeal
any portion of these Articles of Incorporation shall be included in the notice of stockholders'
meeting at which such action is proposed to be taken.
V. DIRECTORS AND OFFICERS
l . Directors. The Board of Directors shall manage the business and affairs of the
corporation. The Board of Directors shall consist of three stockholders, unless that number is
increased as provided in the corporation's bylaws, such directors to be chosen as specified in the
bylaws, and having such terms and duties as shall be set forth in the bylaws.
2. Officers. Officers of the corporation shall be elected as provided in the
corporation's bylaws, and shall have such duties and terms of office as therein specified.
3. Limitation of Certain Liabilities of Directors and Officers. No director of the
corporation shall have personal liability to the corporation or to its stockholders for monetary
damages for breach of fiduciary duty as a director, except that all directors shall remain
personally liable to the corporation and its stockholders for monetary damages for any breach of
the director's duty of loyalty to the corporation or its members or stockholders, acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation of the law, acts
specified in C.R.S. § 7-128-403, or subsequent amendments thereof, involving unlawful
distributions, or C.R.S. § 7-128-501, or subsequent amendments thereof, involving conflicting
interest transactions, or any transaction from which the director directly or indirectly derived an
improper personal benefit.
No director or officer of the corporation shall be personally liable for any injury to person
or property arising out of a tort committed by an employee of the corporation unless such
director or officer was personally involved in the situation giving rise to the litigation, or unless
such director or officer committed a criminal offense in connection with such situation. The
protection offered by this provision shall not restrict other common law protections and rights
that a director or officer may have. Nor shall this provision restrict the corporation's right to
eliminate or limit the personal liability of a director to the corporation or to its stockholders for
monetary damages for breach of fiduciary duty as a director as provided in the previous
paragraph.
4
VI. POWERS
The corporation shall have and exercise all of the powers, privileges and rights now or
hereafter conferred upon ditch and reservoir companies by the State of Colorado, and all of the
powers and rights incidental to carrying out the purposes for which the corporation is formed,
and, in addition thereto, the following:
1. Assessments. The corporation shall have the power to make assessments from
time to time on its capital stock, to be levied on the shares as set out in the corporations bylaws,
payable in money or labor or both, for the purpose of keeping the ditch structure, equipment and
appurtenances, and any property of the corporation in good repair, for the purpose of
constructing, operating, maintaining, repairing and replacing the Si Johnson Ditch and
infrastructure, and rights of way, improving the ditch, and facilitating delivery of water to the
stockholders, and for the purpose of paying any obligations or indebtedness of the corporation
and interest on such obligations or indebtedness. As provided in the bylaws, a stockholder may
be denied delivery of its Si Johnson Ditch Water Rights in the event of unpaid assessments.
2. Consultants Protection of Si Johnson Ditch Water Rights. The corporation shall
have the right to engage such consultants and employees as are deemed necessary by the Board
of Directors and to engage in such actions deemed necessary by the Board of directors to protect
and preserve the Si Johnson Ditch Water Rights carried in the Si Johnson Ditch by the
stockholders.
VII. BYLAWS
The Board of Directors of the corporation shall have the power to make such prudent
bylaws as it deems proper for management of the affairs of the corporation, and not inconsistent
with these Articles of Incorporation or the laws of the State of Colorado, and to add to, amend, or
repeal any of said bylaws, provided, that notice of any proposal to add to, amend, or repeal any
of said bylaws shall be included in the notice of the meeting of the Board of Directors at which
such action is proposed to be taken. Any action taken by the Board of Directors with reference
to the bylaws may be rescinded at aduly-noticed meeting of the stockholders.
VIII. DISTRIBUTION OF ASSETS UPON DISSOLUTION
Pursuant to C.R.S. § 7-40-107, no dividend or distribution of the property of the
corporation shall be made until all debts of the corporation are fully paid and then only upon
final dissolution and surrender of the corporation and name, nor shall any distribution be made
except by a vote of the majority vote of shares entitled to vote. When a distribution of any
property of the corporation is contemplated, the directors shall file a statement, under oath, in the
office of the Pitkin County Recorder, that all debts of the corporation are paid.
Upon dissolution of the corporation, all of its assets remaining after payment of all debts
and liabilities of the corporation shall be paid over and transferred to its stockholders and all
structures, rights of way, headgate(s), intake, flumes, spillways, pipelines, culverts, measuring
devices and other structures and appurtenances shall be reassigned, returned or reconveyed to the
stockholders or their successors or assigns in the same amount and proportion as assigned, or
conveyed to the corporation by the stockholders upon its organization. When a final dissolution
of the corporation has been agreed upon, the directors shall file, in the office of the Colorado
secretary of state, a certificate thereof, and upon filing this certificate, the corporation shall cease
to exist.
Notwithstanding any other provision herein, the corporation shall not conduct or carry on
activities not permitted, nor receive any income which is prohibited under the provisions of the
Internal Revenue Code governing nonprofit corporations.
VIII. REGISTERED OFFICE AND REGISTERED AGENT
The address of the current registered office of the corporation is c/o Aspen City Attorney,
130 South Galena Street, Aspen, CO 81611, and the name of its initial registered agent at said
address is John Worcester.
IX. INCORPORATORS AND PERSONS CAUSING THIS DOCUMENT TO BE FILED
The names and addresses of the incorporators of the corporation are as follows:
2. The name and address of the person causing these Articles of Incorporation to be
filed, and who may be contacted with questions regarding these Articles is:
Dated and signed , 2009.
(Name and title)
The undersigned Registered Agent for service of process hereby consents to such appointment.
i%q
John Worceste (date)
RECEPTION#: 561705, 08/0612009 at
11:53:50 AM,
1 OF 21, R $106.00 Doc Code BYLAWS
Janice K. Vos Caudill, Pitkin County, CO
BYLAWS
OF
SI JOHNSON DITCH COMPANY
ARTICLE I -OFFICES
Section 1. Principal Office. The principal office and place of business of the corporation
shall be in Aspen, Colorado at such location as shall be designated from time to time by the
Board of Directors.
Section 2 Registered Office. The registered office of the corporation shall be
maintained in Colorado and may be, but need not be, the same as the principal office. The
address of the registered office may be changed from time to time by the Board of Directors in
the manner provided by Colorado law then in effect.
ARTICLE II -WATER RIGHTS AND DITCH FACILITIES
Section 1. Water Rights and Ditch Facilities. The Si Johnson Ditch, as decreed in Civil
Action No. 3082 on August 25, 1936, in the Ga~eld County District Court diverts water from
Castle Creek, tributary to the Roaring Fork River, tributary to the Colorado River, in Pitkin
County, Colorado. The decreed headgate of the Si Johnson Ditch is located on the right bank of
Castle Creek, at a point whence the quarter section corner on the North side of Section 13,
Township 10 South, Range 85 West of the 6`h P.M. in Pitkin County, Colorado, bears North 42°
15' East 1630 feet distant. The Si Johnson Ditch was decreed for irrigation, and has two decreed
priorities: Priority No. 422 decreed For 3.5 cfs with an appropriation date of January 10, 1926,
and Priority No. 435 decreed for 2.0 cfs with an appropriation date of May 1, 1932. The
foregoing water rights are referred to in these bylaws as the "Si Johnson Ditch Water Rights"
The "Si Johnson Ditch Facilities" include the Si Johnson Ditch (but not the Si Johnson Water
Rights) and related infrastructure, including any and all headgates, intakes, flumes, spillways,
pipelines, culverts, measuring devices, division or sputter boxes, and other improvements or
appurtenances now existing or subsequently installed, as well as any and all easements, licenses,
rights of way, and other rights and facilities used for the diversion of water into the Si Johnson
Ditch and delivery of water to the owners and authorized users of the Si Johnson Ditch Water
Rights.
Section 2. Purpose of Corporation. The purpose of the corporation is to exercise
reasonable best efforts to use, operate, maintain, repair and replace the existing Si Johnson Ditch
structures, rights of way, headgate(s), intakes, flumes, spillways, pipelines, culverts, easements
and other appurtenances, so as to ensure delivery of water to stockholders and their authorized
users.
a. In performing its duties, the corporation shall comply with the provisions of any
applicable requirements of express easements, including the Si Johnson Ditch Access Easement
dated September 30, 2008, between Alan Quasha and Ilona Nemeth, Grantors, and the City of
Aspen, Grantee, recorded with the Pitkin County Clerk and Recorder on October 9, 2008, at
Reception No. 553463, and the Si Johnson Ditch Access Easement Agreement dated
between Three Trees, LLC and M.S. 4610 LLC, Grantors, and the City of Aspen, Grantee,
recorded with the Pitkin County Recorder on at Reception No.
(collectively referred to as "Easement Agreements," or individually as an "Easement
Agreement"). In addition, the corporation shall make reasonable efforts to respect the
landscaping and aesthetic features of the property of the stockholders and their authorized users,
but, except to the extent otherwise provided in an Easement Agreement, shall have no obligation
to restore, repair or replace any elements or structures installed in or on the Si Johnson Ditch
Facilities if they are damaged during the course of reasonable operation, use, maintenance, repair
and replacement operations.
b. Notwithstanding the foregoing, the corporation shall have the right to remove
vegetation, landscaping, improvements, and other items located in or on the banks of the ditch
which interfere with the use, operation, cleaning, maintenance, repair and replacement of the Si
Johnson Ditch Facilities, and the right to place any material and items removed on the property
adjacent to the ditch location from which it was removed. While the corporation will make
reasonable efforts to conduct its ditch maintenance, cleaning and repair activities in a manner
that does not negatively impact the property of the stockholders or their authorized users, unless
required an Easement Agreement, the corporation shall not be required to repair, replace or
remove any items removed from the Si Johnson Ditch Facilities.
c. Except as otherwise limited by an Easement Agreement, the corporation shall have
reasonable rights of access necessary for the operation, cleaning, use, maintenance, repair and
replacement of the Si Johnson Ditch Facilities, in addition to access pursuant to any easements or
rights of way associated with, or appurtenant to the Si Johnson Ditch. Reasonable access may be
had by travel along the course of the Si Johnson Ditch as well as access across other portions of
stockholders' property traversed by the Si Johnson Ditch. Nothing herein shall be deemed to
waive, diminish, modify or expand any easements or rights of way owned by or associated with
the Si Johnson Ditch, regardless of how acquired.
Section 3. Stockholders' Retained Ownership. The initial owners of the Si Johnson
Ditch Water Rights and the Si Johnson Ditch Facilities are identified in Article III, Section 2,
below, and they will retain ownership of the Si Johnson Ditch Water Rights and the Si Johnson
Ditch Facilities. The corporation will, for the benefit of the stockholders, use, operate, manage,
maintain, repair and replace the Si Johnson Facilities under the direction of the Board of
Directors as described in these bylaws.
Section 4. Restrictions on Use of Si Johnson Ditch Facilities.
a. The stockholders (and those who use the Si Johnson Ditch Water Rights by contract
with a stockholder) may use the Si Johnson Ditch Facilities only for delivery of the Si Johnson
Ditch Water rights for their decreed use.
b. Stockholders (and those who use the Si Johnson Ditch Water Rights by contract with
a stockholder) may temporarily detain water delivered to them by the corporation in structures
not controlled by the corporation, so long that such detention is not inconsistent with the decrees
2
for the Si Johnson Ditch Water Rights and does not materially deprive other stockholders of
water to which they are entitled, meets design and safety standards established by the
corporation, and does not pose a reasonable likelihood of damage or injury to the corporation or
the stockholders.
c. The affirmative vote of stockholders owning at least seventy five percent (75%) of
the eligible shares is required before any stockholder may modify or otherwise alter the historic
operation or flow of water in the Si Johnson Ditch, including by the installation of aesthetic
water features and ponds in the ditch ("ditch modification"). "Historic operation" shall mean
operation of the Si Johnson Ditch, and deliveries of water in the manner such operation and
deliveries have occurred prior to adoption of these bylaws. Any proposed ditch modification
shall be subject to any reasonable requirements or standards established by the corporation, or
any recommendations of the engineer or qualified water rights consultant retained by the
corporation to review the requested ditch modification. Approval of a ditch modification shall
not be unreasonably withheld or subjected to unreasonable conditions. The stockholder
requesting the ditch modification shall be responsible for demonstrating that no adverse effect
will result to the corporation or other stockholders. Any damage to the corporation, the Si
Johnson Ditch Facilities, the Si Johnson Ditch Water Rights, or any stockholder that results from
a ditch modification performed by a stockholder shall be the responsibility of that stockholder,
notwithstanding any approval of the ditch modification by the corporation or stockholders.
Approval of the ditch modification shall be conditioned upon reimbursement to the corporation
of any expense incurred by it in reviewing the ditch modification proposal (including legal and
engineering fees) and approval and acceptance of the design plans and completed construction
for the ditch modification. The corporation may also require, as a condition of approval, that the
stockholder seeking the ditch modification provide indemnification to the corporation and the
other stockholders.
d. No stockholder (or authorized user of a stockholder's Si Johnson Ditch Water Rights)
shall treat the water flowing through the Si Johnson Ditch or any aesthetic features, or place any
pollutants, chemicals, or other substances into said water without advance written approval of the
Board of Directors.
e. Each stockholder will be responsible for maintaining, repairing or replacing any
element or structure within or connected to the Si Johnson Ditch, including aesthetic features,
that is not necessary for delivery of water to the stockholders or their authorized users, and
stockholders shall be responsible for ensuring that any such elements or structures they have
installed, including aesthetic features, do not interfere with delivery of water through the Si
Johnson Ditch. The corporation shall not be liable for any injury or damage arising from or
related to the existence of any element or structure within or connected to the Si Johnson Ditch
Facilities that is not necessary for delivery of water to the stockholders or their authorized users,
including but not limited to aesthetic features installed by stockholders, and may remove or
mitigate any such element or structure without liability to the party who installed or uses it, if the
Corporation reasonably deems it necessary to do so in order to properly maintain the Si Johnson
Ditch Facilities, to deliver water to the stockholders and their authorized users, or to protect the
safety and integrity of the Si Johnson Ditch Facilities, or to protect the Si Johnson Ditch Water
3
Rights. The corporation may recover the costs of any such removal from the stockholder
responsible for its installation.
£ In the event a stockholder or a stockholder's authorized user violates any of the
bylaws contained in this Article II, Section 4, the Board of Directors may authorize the
corporation to take any one or more of the following actions: (i) curtail delivery of water to the
violating stockholder; (ii) assess reasonable and appropriate penalties established by the Board of
Directors; (iii) assess actual remediation and repair costs incurred by the corporation to resolve
the violation; and/or (iv) file any civil action deemed as necessary to seek relief, including a
request for injunction or restraining order, and recovery costs and attorney fees.
Section 5. Prerequisites to Stockholder Change of Point of Delivery Within Ditch
S sY tem• Any stockholder may change the point(s) within the ditch system at which such
stockholder diverts water from the Si Johnson Ditch Water Rights. However, no stockholder
may change its point(s) of diversion within the ditch system until such stockholder has (i) first
given the corporation sixty (60) days notice of the intended change, (ii) provided, together with
the notice, an engineering report describing the change and its impact on the portion of the Si
Johnson Ditch Water Rights that will not be changed, and providing for mitigation of the impact
of the change on the remaining portion of the Si Johnson Ditch Water Rights, and (iii) provided
payment or arranged for payment (in a manner satisfactory to the Board of Directors) to the
corporation of an amount determined by the Board of Directors to be reasonable and necessary
for the corporation's evaluation of the engineering report, and construction of any modifications
or changes to the Si Johnson Ditch Facilities that are required to accommodate the requested
change and to prevent injury to the unchanged Si Johnson Ditch Water Rights that may be
reasonably expected to occur as a result of the stockholder's planned change. This Section 5
shall not be construed to require approval of diversion point(s) that are in place or approved by
agreement of the stockholders prior to the date of incorporation.
Section 6. Prerequisites to Stockholder Transfer of Si Johnson Ditch Water Riuhts from
Headeate.
If any stockholder wishes to transfer its interest in the Si Johnson Ditch Water Rights from
the headgate of the Si Johnson Ditch, such stockholder shall, in addition to complying with the
requirements set forth in (i) through (iii) of Section 5 above, surrender to the corporation, for no
consideration, 1 share of stock for each .010 cfs of his Si Johnson Ditch Water Rights such
stockholder wishes to transfer from the Si Johnson Ditch headgate. The transferring stockholder
may be required by the corporation to leave a certain percentage of the water to be transferred in
the ditch to compensate for ditch losses and to ensure continued carriage. The corporation may
also determine if some or all of the assessments allocated to the shares to be transferred shalt
continue to be paid notwithstanding the transfer, or if the stockholder must make any other
accommodations as contemplated by C.R.S. § 37-92-304(3.5) or other Colorado law. The
corporation may, at its discretion, participate in any water court proceeding brought by a
stockholder to change its interest in the Si Johnson Ditch Water Rights.
ARTICLE III - STOCK AND STOCKHOLDERS
4
Section 1. Authorized Stock. The Corporation shall be authorized to issue 5500 shares
of stock. For purposes of these bylaws, the water rights described below in this Article, unless
otherwise designated, will be referred to as the "Si Johnson Ditch Water Rights" and shall be
used as the basis for share determination:
5.5 cfs decreed to the Si Johnson Ditch in Civil Action No. 3082 on August 25,
1936, in the Garfield County District Court, with two decreed priorities: Priority
No. 422 decreed for 3.5 cfs with an appropriation date of January 10, 1926, and
Priority No. 435 decreed for 2.0 cfs with an appropriation date of May 1, 1932.
The corporation shall be entitled to treat the holder of record of any stock of the
corporation as the holder in fact and shall not be bound to recognize any equitable or other
interest in any shares of stock of the corporation other than as shown by the records of the
corporation.
Section 2. Criteria and Procedures for Becoming a Stockholder. No person shall be
admitted as a stockholder without such person's consent. Only persons or entities having an
ownership interest in the Si Johnson Ditch Water Rights may become stockholders of the
corporation, although the Si Johnson Ditch Water Rights owned by such persons or entities will
continue to be owned by such persons or entities, and will not be conveyed or transferred to the
corporation. Each stockholder shall be entitled to one share of the stock of the corporation for
each .001 cfs decreed to the Si Johnson Ditch that is owned by such stockholder. As of the date
of approval of these bylaws, the ownership of the Si Johnson Ditch is as follows:
Westchester Investments LLC: 0.67 c.fs.
Three Trees LLC/M.S. 4610, LLC: 0.50 c.fs.
City of Aspen: 4.133 c.fs.
United States Forest Service: 0.20 c.f.s.
Westchester Investments LLC will be issued 670 shares, Three Trees LLC and M.S. 4610 will
jointly be issued 500 shares, the City of Aspen will be issued 4133 shares, and the United States
Forest Service is entitled to 200 shares. Original shares of the stock of the corporation shall be
issued to the Si Johnson Ditch Water Rights owners identified above, with their consent, in
exchange for their written agreement that the corporation may, for their benefit, use, operate,
manage, maintain, repair and replace their interest in and to the Si Johnson Ditch Facilities, and
that the Si Johnson Ditch Water Rights owners will pay their duly authorized assessments to the
corporation to enable it to perform such services.
Section 3. Assessments. The Board of Directors may, as required to properly use,
operate, manage, maintain, repair, and replace all or any portion of the Si Johnson Ditch
Facilities, pay any indebtedness of the corporation, or interest thereon, levy assessments on all
outstanding shares of stock, and build reserves as reasonably necessary. Assessments shall be
levied in accordance with these bylaws.
Any assessment established by the Board of Directors shall be submitted to the
stockholders entitled to vote at the annual meeting or at a special meeting called for the purpose
of considering such assessment. No assessment shall become effective until ratified and
approved by a majority of the stockholders present at such a meeting and entitled to vote. If the
stockholders fail to hold any such meeting or "fail to make or authorize any assessment within
ninety (90) days after the close of the corporation's fiscal year, the directors shall have the power
to make any such assessment for that year at any regular or special meeting called for such
purpose. C.R.S. § 7-42-104. If neither the stockholders nor the directors make an assessment
for a particular year, the assessment shall be the same as the previous year's assessment.
If any stockholder fails to pay any assessment within thirty (30) days following written
notice to such stockholder at its address shown in the corporation's records, the corporation may
refuse or terminate delivery of water to such stockholder and in addition, the Corporation may
install such other locks or devices on the ditch or pump delivery system as may be approved by
the Board of Directors, may assess late fees and interest as established by the Board of Directors
from time to time, and institute legal actions in order to collect unpaid assessments, together with
interest, late fees and attorney fees. All fees and costs associated with such legal proceedings,
including reasonable attorney fees, will be added to the amounts owed by the delinquent
stockholder. The Board of Directors may also impose a lien for unpaid assessments upon the
property of a delinquent stockholder that is irrigated by the stockholder's Si Johnson Ditch Water
Rights. A stockholder's stock will not be subject to forfeiture for failure to pay an assessment.
Section 4. Rights and Obligations of Stockholders. Unless otherwise provided by the
Bylaws, the Colorado Revised Nonprofit Corporation Act, or Article 42 of Title 7, C.R.S.,
pertaining to Ditch and Reservoir Companies, the shares of all stockholders will give them the
same rights and obligations.
Section 5. Transfer of Stock.
a. Propert~Represented by Stock. By acquiring shares of stock in the Corporation, no
stockholder will relinquish, waive or convey to the corporation any interest such stockholder
may have in the Si Johnson Ditch Water Rights, or the Si Johnson Ditch Facilities. Rather, the
corporation shall operate, manage, use, maintain, repair and replace the Si Johnson Ditch
Facilities in order to carry the water attributable to the Si Johnson Ditch Water Rights for the
benefit of the stockholders.
b. Transfer urn Withdrawal. A stockholder may withdraw from the corporation at any
time. Upon such withdrawal, the stock of that stockholder will be transferred to the corporation
at no additional consideration. Withdrawal of a stockholder does not relieve the stockholder
from any assessments or other obligations the stockholder may have to the corporation as a result
of obligations incurred or assessments made prior to withdrawal, and does not bar the
corporation from seeking reimbursement of such stockholder's pro-rata share of the expenses
incurred by the corporation for the use, operation, management, repair and replacement of the Si
Johnson Ditch Facilities, which expenses are deemed to benefit such stockholder, whether or not
the stockholder continues to own stock in the corporation. Moreover, withdrawal of the
stockholder does not prevent the corporation or other stockholders from requiring compliance
with Article II, Sections 3 and 4 of these bylaws.
6
Section 6. Stock Certificates. Certificates evidencing the shares of stock shall be signed
by the President and attested by the Secretary, and provided to the stockholders. All stock will
be transferred upon the books of the Corporation only upon surrender of the certificate to be
transferred, properly endorsed by the owner or owners. C.R.S. § 7-126-102.
If a stock certificate is lost, a duplicate certificate will be issued upon compliance with
applicable law regard lost stock certificates. The Corporation may require that the stockholder
demanding a duplicate or replacement certificate provide indemnity to the corporation as
permitted by law as a condition to issuing such duplicate or replacement certificate.
ARTICLE IV -STOCKHOLDER MEETINGS
Section 1. Annual Meeting. The annual meeting of the stockholders shall be held in
January of each year, at a time, date and place in Aspen, Colorado established by resolution of
the Board of Directors for the purpose of electing members of the Board of Directors of the
corporation, approving assessments for the upcoming year, and for the transaction of such other
business as may come before the meeting. If no place is stated, the meeting shall be held at the
corporation's registered office.
Section 2. Special Meetines. Special meetings of the stockholders may be called at any
time by the Board of Directors or by written demand of the stockholders stating the purpose of
such special meeting, and signed and dated by stockholders holding at least ten percent (l0%) of
all votes entitled to be cast on any issue proposed to be considered at the meeting. The purpose
of any special meeting of the stockholders shall be stated in the notice of such meeting. Only
business within the purpose described in the notice may be conducted at a special meeting of
stockholders. C.R.S.§7-127-102.
Section 3. Place of Meetine. The Board of Directors may designate any place within
Aspen, Colorado, as the place for any annual meeting or any special meeting called by the Board
of Directors. If no designation is made, or if a special meeting is called other than by the Board,
the place of meeting shall be the registered office of the corporation.
Any or all of the stockholders may participate in an annual or special meting of the
stockholders by, or the meeting may be conducted through the use of, any means of
communication by which all persons participating in the meeting may hear each other during the
meeting. A stockholder participating in a meeting by this means is deemed to be present in
person at the meeting.
Section 4. Notice of Meetin¢s. Notice shall be given to each stockholder entitled to vote
at a meeting in the manner specified in these bylaws or in such other manner determined by the
Board of Directors that is fair and reasonable when all the circumstances are considered. Written
notice by first class or certified mail of any annual or special meeting stating the place, date and
hour of the meeting shall be given not less than ten nor more than sixty days before the date of
the meeting. If notice is given by means other than first class or registered mail, no less than
7
thirty days notice must be provided. Notice of a special meeting shall include a description of
the purpose or purposes of the meeting.
Section 5. Methods of Notice. Notice shall be given personally or by mail, private
carrier, or facsimile by or at the direction of the President, the Secretary, or other officer or
persons calling the meeting, to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given and effective five days after deposit in the United States mail,
properly addressed to the stockholder at the stockholder's address as it appears in the
corporation's current record of stockholders, first class or certified mail, return receipt requested,
with postage prepaid.
Section 6. Waiver of Notice. A stockholder may waive notice of a meeting before or
after the time and date of the meeting by a writing signed by such stockholder. Further, by
attending a meeting in person or by proxy, a stockholder waives objection to lack of notice or
defective notice of the meeting unless the stockholder objects at the beginning of the meeting to
the holding of the meeting or the transaction of business at the meeting because of lack of notice
or defective notice. By attending the meeting, the stockholder also waives any objection to
consideration at the meeting of a particular matter not within the purpose of purposes described
in the meeting notice unless the stockholder objects to considering the matter when it is
presented. C.R.S. §7-127-105.
Section 7. Action by Stockholders Without Meetine. Any action required or permitted to
be taken at a meeting of the stockholders may be taken without a meeting if written consent that
sets forth the action so taken is signed by a majority of the stockholders entitled to vote with
respect to the subject matter thereof and is received by the corporation. All signed written
consents under this provision shall be filed with the minutes of the stockholder meetings. C.R.S.
§7-127-107.
Section 8. Adjournment of Meetin¢. When a meeting is adjourned to another date, time
or place, notice need not be given of the new date, time or place if the new date, time or place of
such meeting is announced before adjournment of the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any business which may have been
transacted at the original meeting.
Section 9. Fixing of Record Date. For the purpose of determining stockholders entitled:
(i) to notice of or to vote at any meeting of stockholders or any adjournment thereof; (ii) to
demand a special meeting; or (iii) to make a determination of stockholders for any other proper
purpose, the Board of Directors may fix a future date as the record date for any such
determination of stockholders. Such date in any case shall be not more than seventy days, and,
in case of a meeting of stockholders, not less than ten days, prior to the date on which the
particular action requiring such determination of stockholders is to be taken. The record date for
determining the stockholders entitled to action without a meeting or entitled to be given notice of
action so taken shall be the date a writing upon which the action is taken is first received by the
corporation. The record date for determining members entitled to demand a special meeting
shall be the date of the earliest of any of the demands pursuant to which the meeting is called.
C.R.S.§7-127-106.
8
ARTICLE V. -STOCKHOLDER VOTING
Section 1. Voting Lists. After a record date is fixed for a stockholder meeting, the
Secretary shall, at the earlier often days before such meeting or two business days after notice of
the meeting has been given, make a complete list of the stockholders entitled to be given notice
of such meeting or any adjoumment thereof. The list shall be arranged in alphabetical order and
shall show the name and address of each stockholder and number of votes to which each
stockholder is entitled and shall be kept on file at the registered office of the corporation. Such
list shall be available for inspection on written demand by any stockholder or the stockholder's
agent or attorney during regular business hours, and shall be available at the meeting to which it
pertains, or an adjoumment thereof.
Section 2. Quorum and Manner of Voting. Fifty-one percent (51%) of the outstanding
stock of the corporation shall constitute a quorum. If a quorum exists, the vote on a matter of the
majority of shares represented in person or by proxy at the meeting at which the action is taken is
the action of the stockholders unless the vote of a greater number is required by law or the
Articles of Incorporation.
Section 3. Votine Entitlement. Only owners of eligible shares shall be entitled to vote
upon matters presented to the stockholders. "Eligible shares" are those shares validly authorized
and issued by the corporation, and fully paid as to all assessments. Each stockholder shall be
entitled to one vote for each eligible share of stock held by the stockholder on each matter
submitted. If shares of stock of the corporation stand of record in the names of two or more
persons, their acts with respect to voting shall have the following effect: (i) if only one votes,
such act binds all; and (ii) if more than one votes, the vote shall be divided on a pro rata basis.
C.R.S. §7-127-202.
Section 4. Proxies. At all meetings of stockholders, a stockholder may vote by proxy by
signing an appointment form or similar writing, either personally or by the stockholder's duly
authorized attorney-in-fact. The proxy appointment form transmitted to the corporation shall
include evidence from which it can be determined that the stockholder authorized transmission
of the appointment. The proxy appointment form shall be filed with the Secretary of the
corporation before or at the time of the meeting. The appointment of a proxy is effective when
received by the corporation and is valid for eleven months unless a different period is expressly
provided in the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile, of an appointment
of a proxy may be substituted for or used in lieu of the original appointment for any purpose for
which the original appointment could be used.
An appointment of a proxy is revocable by a stockholder and may be revoked by
attending any meeting and voting in person or signing and delivering to the Secretary either a
writing stating that the proxy is revoked or a subsequent proxy appointment form.
9
The death or incapacity of the stockholder appointing a proxy does not affect the right of
the corporation to accept the proxy's authority unless notice of the death or incapacity is received
by the Secretary before the proxy exercises its authority under the appointment.
The corporation shall not be required to recognize an appointment made irrevocable if it
has received a writing revoking the appointment signed by the stockholder either personally or
by the stockholder's attorney-in-fact, notwithstanding that the revocation may be a breach of an
obligation of the stockholder to another person not to revoke the appointment.
Subject to provisions in the bylaws concerning the corporation's acceptance of votes and
any express limitation on the proxy's authority appearing on the appointment form, the
corporation is entitled to accept the proxy's vote or other action as that of the stockholder making
the appointment. C.R.S.§7-127-203.
Section 5. Corporation's Acceptance of Votes. If the name signed on a vote, consent,
waiver, proxy appointment or proxy appointment revocation corresponds to the name of a
stockholder, the corporation, if acting in good faith, is entitled to accept the vote, consent,
wavier, proxy appointment or proxy appointment revocation and give it effect as the act of the
stockholder. If the name signed on a vote, consent, wavier, proxy appointment or proxy
appointment revocation does not correspond to the name of the stockholder, the corporation, if
acting in good faith, is nevertheless entitled to accept the vote, consent, waiver, proxy
appointment or proxy appointment revocation and to give it effect as the act of the stockholder if:
(i) the stockholder is an entity and the name signed purports to be that of an officer or agent of
the entity; (ii) the name signed purports to be that of an administrator, executor, guardian or
conservator representing the stockholder; (iii) the name signed purports to be that of a receiver or
trustee in bankruptcy of the stockholder; (iv) the name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the stockholder; (v) two or more persons are the
stockholders as cotenants or fiduciaries and the name signed purports to be the name of at least
one of the cotenants or fiduciaries and the person signing appears to be acting on behalf of all the
cotenants or fiduciaries. The corporation may request evidence of a signatory's authority to sign
for the stockholder in the circumstances described in (i) - (v) above, and may reject a vote,
consent, waiver, proxy appointment or proxy appointment revocation if the Secretary, acting in
good faith, has reasonable basis for doubt about the validity of the signature on it or about the
signatory's authority to sign for the stockholder.
Neither the corporation nor its officers nor any agent who accepts or rejects a vote,
consent, waiver, proxy appointment or proxy appointment revocation in good faith and in
accordance with the standards of this Section is liable in damages for the consequences of the
acceptance or rejection. C.R.S.§7-127-204.
Section 6 Manner of Acting by Entity or Municipal Corporation Stockholders. As to
any action that is required or permitted by the stockholders, a stockholder that is a corporation or
other entity or a municipality may authorize an individual representative of such stockholder, on
behalf of the stockholder, to vote and hold office on behalf of such stockholder irrespective of
the fact that such individual representative is not himself or herself a stockholder of the
corporation. The Board of Directors may require said individual to provide evidence of a
10
resolution or other directive appointing him or her to act on behalf of the stockholder.
C.R.S. 7-42-101(3).
ARTICLE VI -BOARD OF DIRECTORS
Section 1. Qualifications; Election; Tenure. Members of the Board of Directors of the
Corporation shall be individuals eighteen years of age or older. Directors must be stockholders,
unless the stockholder is a municipal corporation, corporation or other entity, in which case the
entity stockholder may designate an individual officer, employee or agent of said stockholder to
serve as a director of the corporation irrespective of the fact that such individual is not a
stockholder of the corporation. The directors, who need not be residents of the State of Colorado,
shall manage the affairs of the corporation. The number of directors shall be three, unless a
greater number is established by amendment of these bylaws. C.R.S. §7-128-]Ol, 102, 103;
C.R.S.§ 7-42-101(3).
All directors shall be elected by the stockholders at each annual meeting of the
stockholders. C.R.S. §7-128-104. Directors thus elected shall be elected for one year terms and
shall hold office until the next annual meeting of the stockholders and until their successors have
been elected and qualified. Directors may be elected for successive terms. A decrease in the
number of directors or in the term of office shall not shorten an incumbent director's term. The
term of a director filling a vacancy expires at the end of the unexpired term that such director is
filling.
Section 2. Annual Meeting. The annual meeting of the Board of Directors shall be held
immediately following and in the same place as the annual meeting of the stockholders in each
calendar year, or on such other date and at such time and at such place as the President may
determine. The annual meeting of the Board of Directors shall be for the purpose of electing
officers and for the transaction of such other business as may come before the meeting.
Section 3. Special Meetings. Special meetings of the Board of Directors may be called
by or at the request of the President or any two directors. Special meetings shall be held at such
time and place, in Aspen, Colorado, as may be designated by the authority calling such meeting.
Notice stating the place, day, and hour of every special meeting shall be given to each member of
the Board of Directors by mailing such notice at least five days before the date fixed for the
meeting. The notice of such special meeting shall specify the purpose of the meeting.
Section 4. Quorum; Voting. A quorum at all meetings of the Board of Directors shall
consist of a majority of the directors holding office. Less than a quorum may adjourn from time
to time without further notice until a quorum is secured. Except as provided otherwise by the
bylaws, the act of a majority of the directors present at meeting at which a quorum is present
shall be the act of the Board of Directors.
A director who is present at a meeting of the Board of Directors is deemed to have
assented to all action taken unless: (i) the director objects at the beginning of the meeting, or
promptly upon arrival, to holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to any action taken; (ii) the director contemporaneously requests that
the director's dissent or abstention as to any specific action taken be entered in the minutes; or
(iii) the director causes written notice of the director's dissent or abstention as to any specific
action to be received by the presiding officer of the meeting before adjournment or by the
corporation promptly after adjournment. The right of dissent or abstention is not available to a
director who votes in favor of the action taken. C.R.S. §7-128-105(5), (6).
Section 5. Committees. The Board of Directors may designate from among its members,
by a resolution adopted by a majority of the entire Board of Directors, an executive committee
and one or more other committees, each of which shall have and may exercise such authority in
the management of the corporation as shall be provided in such resolution or in these bylaws.
No such committee shall have the power or authority to authorize distributions; approve or
propose actions to stockholders that require stockholder approval; elect, appoint or remove any
director; amend, restate, alter, or repeal the Articles of Incorporation; amend, alter, or repeal
these or any other bylaws of the corporation; approve a plan of merger not requiring stockholder
approval; approve a sale, lease, exchange, or other disposition of all or substantially all of the
property of the corporation (other than in the usual and regular course of business), with or
without goodwill, that is subject to approval by stockholders; or to take any other action
prohibited by law.
Section 6. Resi ng ation. A director may resign at any time by giving written notice of
resignation to the corporation. The resignation is effective when the notice is received by the
corporation unless the notice specifies a later effective date. A director who resigns may deliver
a statement to that effect to the Colorado Secretary of State.
Section 7. Removal. Any member of the Board of Directors of the corporation as well as
the entire Board elected by the stockholders may be removed by the stockholders with or without
cause at a meeting called for and stating that purpose. A director may only be removed if the
number of votes cast to remove would be sufficient to elect the director.
Section 8. Vacanc~on the Board. If a vacancy occurs on the Board of Directors,
including a vacancy resulting from an increase in the number of directors; (i) the stockholders
may fill the vacancy; or (ii) the Board of Directors may fill the vacancy; or (iii) if the directors
remaining in office constitute fewer than a quorum of the Board of Directors, they may fill the
vacancy by an affirmative vote of a majority of all the directors remaining in office.
Section 9. Action Without a Meeting. Any action which may be taken at a meeting of
the Board of Directors, or any committee thereof, may be taken without a meeting if every
member of the Board in writing either: (i) votes for such action or (ii) votes against such action
or abstains from voting and waives the right to demand that a meeting be held. Action is taken
only if the affirmative vote for such action equals or exceeds the minimum number of votes that
would be necessary to take such action at a meeting at which all of the directors then in office
were present and voted. The written statements which describe the action, signed by all
directors, must be received by the Corporation in order for the action to be effective, and such
statements shall be filed with the minutes. C.R.S. §7-128-202.
12
Section 10. Compensation. No member of the Board of Directors shall receive any
compensation for serving in such office, provided that the Corporation may reimburse any
member of the Board of Directors for reasonable expenses incurred in connection with service of
the Board. C.R.S. §7-128-111.
Section 11. Notice of Meeting. Notice of the date, time and place of any special meeting
shall be given to each Director at least two days prior to the meeting by written notice and shall
be personally delivered, faxed or mailed to each director at the director's business address.
C.R.S. §7-128-203.
Section 12. Waiver of Notice. A director may waive notice of a meeting before or after
the time and date of the meeting by a writing signed by the director. Such waiver shall be
delivered to the corporate Secretary for filing with the corporate minutes, but such delivery and
filing shall not be conditions to the effectiveness of the waiver. Further, a director's attendance
at or participation in a meeting waives any required notice to the director of the meeting unless at
the beginning of the meeting, or promptly upon the director's later arrival, the director objects to
holding the meeting or transacting business at the meeting because of lack of notice or defective
notice and does not thereafter vote for or assent to action taken at the meeting. The purpose of,
and any business to be transacted at, any special meeting of the Board of Directors shall be
specified in the notice or waiver of notice of such meeting. C.R.S. §7-128-204.
Section 13. Telephonic Meetines. The Board of Directors may permit any director to
participate in any meeting of the Board of Directors or a committee thereof through the use of
any means of communication by which all directors participating in the meeting can hear each
other during the meeting. A director participating in a meeting in this manner is deemed to be
present in person at the meeting. C.R.S.§7-128-201(2)
Section 14. Standard of Conduct for Directors and Officers. Each director and officer
shall perform their respective duties as a director or officer, including without limitation their
duties as a member of any committee of the Board, in good faith, in a manner the director or
officer reasonably believes to be in the best interests of the corporation, and with the care an
ordinarily prudent person in a like position would exercise under similar circumstances. In the
performance of such duties, a director or officer shall be entitled to rely on information, opinions,
reports or statements, including financial statements and other financial data, in each case
prepared or presented by the persons identified in C.R.S. §7-128-401, as the same may be
amended from time to time. However, a director or officer shall not be considered to be acting
in good faith if the director or officer has knowledge concerning the matter in question that
would cause such reliance to be unwarranted.
A director or officer shall not be liable to the corporation or its stockholders for any action the
director or officer takes or omits to take as a director or officer if, in connection with such action
or omission, the director or officer performs their duties in compliance with this Section. A
director or officer, regardless of title, shall not be deemed to be a trustee with respect to the
corporation or with respect to any property held or administered by the corporation including,
without limitation, property that may be subject to restrictions imposed by the donor or transferor
of such property.
13
ARTICLE VII -OFFICERS
Section 1. General. The officers of the corporation shall be a President, a Secretary, and
a Treasurer. Any individual may hold more than one office. The Board of Directors may
appoint such other officers as it may deem advisable, who shall be chosen in such manner and
hold their offices for such terms and have such authority and duties as from time to time may be
determined by the Board of Directors. Except as expressly proscribed by these bylaws, the
Board of Directors shall from time to time determine the procedure for the appointment of
officers, their authority and duties, provided that the Board of Directors may not change the
authority and duties of any officer who is not appointed by the Board. All officers shall be
individuals who are eighteen years or older. An officer need not be a director or stockholder of
the corporation. C.R.S. §7-128-301.
Section 2. Powers and Duties. The officers of the corporation shall exercise and perform
the respective powers, duties, and functions as are stated below and as may be assigned to them
by the Board of Directors.
[a] The President shall preside at all meetings of the Board of Directors. The President
shall be the Chief Executive Officer of the corporation and shall, subject to the general direction
and control of the Board of Directors, have the general supervision, direction, and control over
the business and affairs of the corporation and its officers, agents, and employees. With
authorization by the Board of Directors, the President may sign, with the Secretary or any
Assistant Secretary or any other proper officer of the corporation designated by the Board of
Directors, any deeds, leases, mortgages, deeds of trust, or other documents of conveyance or
encumbrance of any real property owned by the corporation. The President shall also perform all
duties incident to the office of President and such other duties as may be assigned by the Board
of Directors from time to time.
[b] The Vice-President, if any, shall assist the President and shall perform such duties as
may be assigned to to him or herby the President or by the Board of Directors. In the absence of
the President, the Vice-President, if any, shall have the powers and perform the duties of the
President.
[c] The Secretary shall keep accurate minutes of the proceedings of the stockholders and
of the Board of Directors and of any committees of the Board of Directors; shall ensure that all
notices are fully given in accordance with the provisions of these Bylaws; shall be custodian of
the records and of the seal of the corporation and shall attest the affixing of the seal of the
corporation when authorized by the Board of Directors; and shall perform such additional duties
as are incident to such office and as may be assigned by the Board of Directors or the President.
[d] The Treasurer shall be the principal financial officer of the corporation; shall have the
charge and custody of and be responsible for all funds and securities of the corporation; shall
deposit such Funds in the name of the corporation in such depositaries as shall be designated by
the Board of Directors; shall keep accurate books of account and records of financial transactions
and the condition of the corporation and shall submit such reports thereof as the Board of
14
Directors may from time to time require; and in general perform all duties incident to such office
and such other duties as may from time to time be assigned to such person by the President or by
the Board of Directors. The Treasurer shall make an annual financial report to the corporation at
the annual meeting of the shareholders. With the approval of the Board of Directors, the
Treasurer shall be authorized to engage any firm of certified public accountants to assist in the
performance of any of the duties incident to the Treasurer's office.
Section 3. Selection and Terms of Office. All officers of the corporation shall be elected
by the Board of Directors at its annual meeting and shall hold office for one year and until their
successors shall have been elected and shall have qualified, or until their earlier death,
resignation, or removal from office.
Section 4. Compensation. No compensation shall be paid to officers of the corporation
for serving in such capacity.
Section 5. Resignation and Removal. An officer may resign at any time by giving
written notice of resignation to the corporation. The resignation is effective when the notice is
received by the corporation unless the notice specifies a later effective date. Officers may be
removed without cause by the Board of Directors or the stockholders. Such removal does not
affect the contract rights, if any, of the corporation or of the person so removed. An officer who
resigns or is removed or whose appointment has expired may deliver a statement to that effect to
the Colorado Secretary of State. The appointment of an officer or agent shall not in itself create
contract rights. C.R.S. §7-128-303-304.
Section 6. Vacancies. A vacancy in any office, however occurring, may be filled by the
Board of Directors for the unexpired portion of the officer's term.
ARTICLE VIII -CORPORATE DOCUMENTS AND RECORDS
Section 1. Financial Statements. Upon the written request of any stockholder, the
corporation shall mail to such stockholder its most recent annual financial statements, if any, and
its most recently published financial statements, if any, showing in reasonable detail its assets
and liabilities and results of its operations.
Section 2. Corporate Records. The corporation shall keep as permanent records minutes
of all meetings of its stockholders and Board of Directors, a record of all actions taken by the
stockholders or Board of Directors without a meeting and of actions taken by a committee in
place of the Board of Directors, and a record of all waivers of notices of meetings of
stockholders, the Board of Directors or any committee. The corporation shall maintain
appropriate accounting records and a record of its stockholders which permits preparation of a
list of the names and addresses of all stockholders in alphabetical order and which shows the
number of votes each stockholder is entitled to cast. The corporation shall maintain its records in
writing or in a form capable of conversion in to written form within a reasonable time. In
addition, the corporation shall keep a copy of the following records at its registered or principal
office: (i) its Articles of Incorporation and Bylaws; (ii) resolutions adopted by its Board of
Directors relating to the characteristics, qualifications, rights, limitations and obligations of
15
stockholders; (iii) the minutes of all stockholder meetings and records of all actions taken by
stockholders without a meeting for the past three years; (iv) all written communications within
the past three years to stockholders generally as stockholders; (v) a list of the names and business
or home addresses of its current Directors and officers, (vi) a copy of its most recent corporate
report filed with the Secretary of State; (vii) all financial statements prepared for periods during
the last three years that a stockholder could have requested under Colorado law.
Section 3 Inspection and Copying of Corporate Records. Upon written demand
delivered at least five business days before the date on which a stockholder wishes to inspect and
copy any of the corporate records identified in Section 2(i) to (vii) of this Article, a stockholder,
its agent or attorney is entitled to inspect and copy such records during regular business hours at
the corporation's principal or registered office. The corporation may impose a reasonable
charge, covering the costs of labor and material, for copies of the documents provided. The
charge may not exceed the estimated cost of production and reproduction of the records. A
stockholder may also inspect any other records of the corporation at a reasonable location
specified by the corporation upon the same terms and conditions, provided that such stockholder
meets the following requirements: (i) the stockholder must have been a stockholder at least three
months immediately preceding the demand or hold at least 5% of the voting power as of the date
of the demand; (ii) the demand must be made in good faith and for a proper purpose; (iii) the
stockholder must describe with reasonable particularity the purpose and the records the
stockholder desires to inspect; and (iv) the records must be directly connected with the described
purpose. The rights set forth herein may not be abolished or limited by the Articles of
Incorporation or the Bylaws. C.R.S. §7-136-101-102.
ARTICLE IX -CONTRACTS, LOANS, DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer(s) to enter into
any contract or execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted for on behalf of the corporation and no
evidence of indebtedness shall be issued in the name of the corporation unless authorized by a
resolution of the Board of Directors. Such authority may be general if confined to a specific
dollar limit determined from time to time by resolution of the Board of Directors and shall
otherwise be confined to specific instances. No loan shall be made to any officer or Director of
the corporation.
Section 3. Checks, Drafts, and Notes. All checks, drafts, or other orders for payment of
money, notes, or other evidence of indebtedness issued in the name of the corporation shall be
signed by such officer(s) of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. De~sits. All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks, financial institutions,
or other custodians as the Board of Directors may select.
16
Section 5. Fiscal Year. The fiscal year of the Corporation shall be the calendar year.
ARTICLE X -SALE OF PROPERTY
Without an affirmative vote of the stockholders, the Board of Directors may not: (i)
authorize the sale, lease, exchange or other disposition of all or substantially all of the
corporation's property, whether or not in the usual and regular course of business; or (ii)
mortgage, pledge, dedicate to the repayment of indebtedness (with or without recourse), or
otherwise encumber all or substantially all of its property whether or not in the usual and regular
course of business. This provision shall not apply to a transaction subject to court order. C.R.S.
§7-132-102
ARTICLE XI -INDEMNIFICATION
Section I. Definitions. For purposes of this Article:
[a] The terms "director or officer" shall include any individual who is or was a director
or officer of the corporation. The term "director or officer" shall also include the estate or
personal representative of a director or officer, unless the context otherwise requires.
[b] The term "proceeding" shall mean any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or investigative, whether formal or
informal, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that
could lead to such an action, suit, or proceeding.
[c] The term "party" includes an individual who was, is, or is threatened to be made a
named defendant or respondent in a proceeding.
[d] The term "liability" shall mean any obligation to pay ajudgment, settlement, penalty,
fine, or reasonable expenses incurred with respect to a proceeding.
[e] When used with respect to a director, the phrase "official capacity" shall mean the
office of director in the corporation, and, when used with respect to a person other than a
Director, shall mean the office in the corporation held by the officer or the employment,
fiduciary or agency relationship undertaken by the employee or agent on behalf of the
Corporation, but in neither case shall "official capacity" include service for any foreign or
domestic corporation or for any other person, employee benefit plan, or other enterprise. C.R.S.
§7-129-101
Section 2. General Provisions. The corporation shall indemnify any person who is or
was a party or is threatened to be made a party to any proceeding by reason of the fact that such
person is or was a director or officer of the corporation, against expenses (including attorney
fees), liability, judgments, fines, and amounts paid in settlement actually and reasonably incurred
by such person in connection with such proceeding if such person: [i] acted in good faith, [ii]
reasonably believed, in the case of conduct in an official capacity with the corporation, that the
17
conduct was in the best interests of the corporation, and in all other cases, that the conduct was at
least not opposed to the best interests of the corporation, and [iii] with respect to any criminal
proceeding, had no reasonable cause to believe that the conduct was unlawful. However, no
person shall be entitled to indemnification under this Section 2 either: [i] in connection with a
proceeding brought by or in the right of the corporation in which the director or officer was
adjudged liable to the corporation; or [ii] in connection with any other proceeding charging
improper personal benefit to the director or offices Indemnification under this Section 2 in
connection with a proceeding brought by or in the right of the corporation shall be limited to
reasonable expenses incurred in connection with the proceeding. The termination of any action,
suit, or proceeding by judgment, order, settlement, or conviction or upon a plea of nolo
contendere or its equivalent shall not itself be determinative that the person did not meet the
standard of conduct set forth in this Section 2. C.R.S. §7-129-102.
Section 3. Successful Defense on the Merits: Expenses. To the extent that a director or
officer of the corporation has been wholly successful on the merits in defense of any proceeding
to which he was a party, such person shall be indemnified against reasonable expenses (including
attorney fees) actually and reasonably incurred in connection with such proceeding. C.R.S. §7-
129-103.
Section 4. Determination of Rieht to Indemnification. Any indemnification under
Section 2 of this Article (unless ordered by a court) shall be made by the corporation only as
authorized in each specific case upon a determination that indemnification of the director or
officer is permissible under the circumstances because such person met the applicable standard
of conduct set forth in Section 2. Such determination shall be made: [i] by the Board of
Directors by a majority vote of a quorum of disinterested directors who at the time of the vote are
not, were not, and are not threatened to be made parties to the proceeding; or [ii] if such a
quorum cannot be obtained, by the vote of majority of the members of a committee of the Board
of Directors designated by the Board, which committee shall consist of two or more directors
who are not parties to the proceeding. (Directors who are parties to the proceeding may
participate in the designation of Directors to serve on such committee); or [iii] if such a quorum
of the Board of Directors cannot be obtained or such a committee cannot be established, or even
if such a quorum is obtained or such a committee is so designated, but such quorum or
committee so directs, then by independent legal counsel selected by the Board of Directors in
accordance with the preceding procedures, or by the stockholders (other than the stockholders
who are directors and are, at the time, seeking indemnification). Authorization of
indemnification and evaluation as to the reasonableness of expenses shall be made in the same
manner as the determination that indemnification is permissible, except that, if the determination
that indemnification is permissible is made by independent legal counsel, authorization of
indemnification and evaluation of legal expenses shall be made by the body that selected such
counsel C.R.S.§7-129-106.
Section 5. Advance Payment of Expenses: Undertaking to Repay. The corporation may
pay for or reimburse the reasonable expenses (including attorney fees) incurred by a director or
officer who is a party to a proceeding in advance of the final disposition of the proceeding if: [i]
the director or officer furnishes the corporation a written affirmation of the director's or officer's
good faith belief that he has met the standard of conduct set forth in Section 2; [ii] the director or
18
officer furnishes the corporation with a written undertaking, executed personally or on the
director's or officer's behalf, to repay the advance if it is determined that he did not meet the
standard of conduct set forth in Section 2, which undertaking shall be an unlimited general
obligation of the director or officer but which need not be secured and which may be accepted
without reference to financial ability to make repayment; and [iii] a determination is made by the
body authorizing indemnification that the facts then known to such body would not preclude
indemnification. C.R.S. §7-129-104.
Section 6. Reports to Stockholders. In the event that the corporation indemnifies, or
advances the expenses of, a director or officer in accordance with this Article in connection with
a proceeding by or on behalf of the corporation, a report of that fact shall be made in advance, in
writing to the stockholders with or before the delivery of the notice of the next meeting of the
stockholders. If the next voting action by stockholders is taken without a meeting, such notice
shall be given to the stockholders at or before the time the first voting stockholder signs a writing
consenting to such action. C.R.S. §7-129-110.
Section 7. Other Employees and Agents. The corporation may indemnify such other
employees and agents of the corporation to the same extent and in the same manner as is
provided above in Section 2 with respect to directors and officers, by adopting a resolution by a
majority of the members of the Board of Directors specifically identifying by name or by
position the employees or agents entitled to indemnification.
Section 8. Insurance. The Board of Directors may cause the corporation to purchase and
maintain insurance (including without limitation insurance for legal expenses and costs incurred
in connection with defending any claim, proceeding, or lawsuit) on behalf of any person who is a
director, officer, employee, fiduciary or agent of the corporation against any liability asserted
against the person or incurred by the person in any such capacity or arising out of the person's
status as such, whether or not the corporation would have the power to indemnify that person
against such liability under the provisions of this Article. C.R.S. §7-129-108.
Section 9. Nonexclusivity of Article. The indemnification provided by this Article shall
not be deemed exclusive of any other rights and procedures to which one indemnified may be
entitled under the Articles of Incorporation, any bylaw, agreement, resolution of disinterested
directors, or otherwise, both as to action in such person's official capacity and as to action in
another capacity while holding such office, and shall continue as to a person who has ceased to
be a Director or officer, and shall inure to the benefit of such person's heirs, executors, and
administrators.
ARTICLE XII -LIABILITY TO THIRD PARTIES
The stockholders, directors, officers, and employees of the corporation are not, as such,
liable for the acts, debts, liabilities or obligations of the corporation. No proceeding may be
brought by a creditor to reach the liability, if any, of a stockholder to the corporation unless final
judgment has been rendered in favor of the creditor against the corporation and execution has
been returned unsatisfied in whole or in part or unless such proceeding would be useless. C.R.S.
§7-126-103; C.R.S.§7-126-203.
19
ARTICLE XIII -AMENDMENTS
The Board of Directors shall have the power, to the maximum extent permitted by the
Colorado Revised Nonprofit Corporation Act, as may be amended from time to time, to make,
amend and repeal the Bylaws of the corporation at any regular or special meeting of the Board
unless the stockholders, in making, amending or repealing a particular bylaw, expressly provide
that the directors may not amend or repeal such bylaw. The stockholders shall also have the
power to make, amend or repeal the bylaws of the corporation at any annual meeting or at any
special meeting called for that purpose.
ARTICLE XIV -MISCELLANEOUS
Section 1. Seal. The Board of Directors may adopt a corporate seal, which may be
circular in form and shall contain the name of the corporation and the words, "Seal, Colorado".
Section 2. Gender. The masculine gender is used in these bylaws as a matter of
convenience only and shall be interpreted to include the feminine and neuter genders as the
circumstances indicate.
Section 3. Conflicts. In the event of any irreconcilable conflict between these bylaws
and either the corporation's Articles of Incorporation or applicable law, the Articles of
Incorporation shall control over the bylaws, and the applicable law shall control over both the
bylaws and articles of incorporation.
Section 4. Definitions. Except as otherwise specifically provided in these bylaws, all
terms used in these bylaws shall have the same definition as in the Colorado Revised Nonprofit
Corporation Act.
Section 5. Emergency Powers and Bylaws. An "emergency" exists for the purposes of
this Section if a quorum of the directors cannot readily be obtained because of some catastrophic
event. In the event of an emergency, the Board of Directors may: (i) modify lines of succession
to accommodate the incapacity of any directors, officer, employee or agent; and (ii) relocate the
principal office, designate alternative principal offices or regional offices, or authorize officers to
do so. During an emergency, notice of a meeting of the Board of Directors only needs to be
given to those Directors whom it is practicable to reach and may be given in any practicable
manner. Corporate action taken in good faith during an emergency binds the corporation and
may not be the basis for imposing liability on any director, officer, employee or agent of the
corporation on the ground that the action was not authorized. The Board of Directors may also
adopt emergency bylaws, subject to amendment or repeal by the stockholders, which may
include provisions necessary for managing the Corporation during the emergency. C.R.S. Secs.
7-123-102, 7-122-107
20
Section 6. Distributions. The term "distribution" means the payment of a dividend or
any part of the income or profit of a corporation to its members, Directors or officers. The
Corporation shall not make any distribution except as follows: (i) to pay compensation in a
reasonable amount to its stockholders, directors or officers for services actually rendered; or (ii)
to make distributions and/or conveyance of corporate property to the stockholders upon
dissolution in compliance with applicable law. C.R.S. §7-133-101, 102.
The above Bylaws were approved and adopted by the Board of Directors of the Si
Johnson Ditch Company on the day of _, 2009.
By:
President, Si Johnson Ditch Company
ATTEST:
Secretary
21
RECEPTION#: 561706, 08/06/2009 at
11:53:51 AM,
1 of 25, R $126.00 Doc Code
AGREEMENT
Janice K. Vos Caudill, Pitkin County, CO •
SI JOHNSON DITCH APPROACH ROAD CONSTRUCTION
AND PIPELINE REPAIR AGREEMENT
THIS AGREEMENT (the "Construction Agreement") is made and entered into
this ~ day of 61 - , 2009 by and between THREE TREES, LLC, a Colorado
limited liability company ("Three Trees"), M.S. 4610, LLC, a Colorado limited liability
company ("M.S. 4610"), and the CITY OF ASPEN, COLORADO, a home rule Colorado
municipality (the "City"), and WESTCHESTER INVESTMENTS, INC.
("Westchester"), all collectively referred to below as the "Parties."
WHEREAS, the City and Westchester claim interests in the water rights and ditch
structure, as well as easements and ditch access road rights in connection with the Si
Johnson Ditch ("Ditch"), which was decreed by the Garfield County District Court in
Case No. 3082 on August 25, 1936, for 3.5 cubic feet per second (c.f.s.) with a priority
number 422 and 2.0 cfs with priority number 435, with a point of diversion on the right
bank of Castle Creek at a point whence the quarter section corner on the North side of
Section 13, Township l0 South, Range 85 West of the 6`h P.M. bears North 42° 15' East
1630 feet distant; and
WHEREAS, M.S. 4610 is the owner of a parcel of land more particularly
described in the attached Exhibit Construction A (the "M.S. 4610 Property") upon
which a portion of the Ditch and a portion of the Ditch Access Road are located; and
WHEREAS, Three Trees is the owner of a parcel of land more particularly
described in the attached Exhibit Construction B (the "Three Trees Property") upon
which the proposed Approach Road will be located; and
WHEREAS, the Si Johnson Ditch crosses the M.S. 4610 Property and can be
accessed through the Three Trees Property and M.S. 4610 Property by the construction of
a road on the Three Trees Property that travels onto the M.S. 4610 Property (the
"Approach Road") and intersects the existing Ditch Access Road (defined below and
depicted on Exhibit Construction D), which the City claims as its historical access
easement to the Si Johnson Ditch; and
WHEREAS, the City and Westchester desire to have the Approach Road
constructed to provide vehicular access to the Ditch Access Road on the M.S. 4610
Property to enable the City to access the Ditch with appropriate vehicles and equipment
for purposes of major maintenance, repair and replacement of the Ditch and Ditch related
structures and improvements, as well as major repairs of the Ditch Access Road and
Approach Road, for the benefit of the City, Westchester, and other holders of water rights
decreed to the Ditch; and
WHEREAS certain sections of the Ditch require permanent stabilization, and
must have the support system reinforced and replaced and the interior of the piped section
fined with a durable material to improve water flow, all of which will be done as part of a
coordinated project called the "Approach Road Construction Project and Ditch Repair
Project," which is defined and described below;
WHEREFORE, in exchange for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the Parties agree to the terms and conditions
provided below:
A. DEFINITIONS
1. "Approach Road" when used in this Construction Agreement means a road
capable of carrying a tandem dump truck (being approximately 8 feet wide, 25 feet long ,
and weighing up to 54,000 pounds with a full load) from the Three Trees Property to the
Ditch Access Road on the M.S. 4610 Property, to be constructed in accordance with the
Scope of Work and Specifications attached as Exhibit Construction C.
2. "Ditch Access Road" when used in this Construction Agreement means an
existing road (formerly a County road) that has historically been used to access the Ditch,
which road runs from South Seventh Street to the existing headgate of the Si Johnson
Ditch, across the M.S. 4610 Property and other properties. The Ditch Access Road is
identified by name and depicted in its approximate location on the drawing attached as
Exhibit Construction D.
3. "Ditch" when used in this Construction Agreement means the Si Johnson ditch
itself, the easement on, in and alongside the ditch, and any headgate structure, cutting,
pipeline, support, retaining wall, cable, tie, or related ditch or pipeline infrastructure on
the Si Johnson Ditch, including any item fitting this description that is added, built,
placed, or replaced in the future.
4. "Major Repairs" when used in this Construction Agreement means major
maintenance, or other improvement, repair or replacement work to the Ditch, the
Approach Road or the Ditch Access Road where foot access would not be feasible, cost-
effective or practical, in the City's reasonable judgment, for the work to be performed.
Major Repairs include, but are not limited to, repairs that require use of motor vehicles or
heavy equipment or the transportation of heavy materials, pipeline replacement, headgate
or infrastructure replacement, utilizing motorized equipment when necessary to clean and
remove heavy sediment buildup in the Ditch and repair of significant damage to the
Ditch, or other similar work where foot access and manual labor would not be feasible,
cost-effective or practical, in the City's reasonable judgment, to perform the work.
Multiple Major Repairs are contemplated and allowed under this Construction
Agreement, provided that such are not anticipated more than occasionally every few or
more years. Major Repairs shall not include ordinary daily or weekly maintenance, ditch
walking and monitoring, or other routine minor repairs of the Si Johnson Ditch, related
infrastructure, or the access or ditch easements themselves.
B. TERMS AND CONDITIONS
1. Formation of Ditch Comuany. Pursuant to the Master Agreement, among the
City, Three Trees, M.S. 4610, and Westchester Investments, Inc., dated
«i ~8 ~ ,the City will proceed to form a mutual ditch company ("Ditch
Company"), with stock therein to be issued to the City, Three Trees, MS 4610 and
Westchester Investments, [nc. pro rata according to these parties' respective ownership
interests in the water rights associated with the Si Johnson Ditch. Formation of the Ditch
Company and issuance of stock to the City, Three Trees and M.S. 4610, and Westchester
Investments, Inc. is a condition precedent to the parties' obligations to perform the
construction projects set forth herein.
2. The Approach Road Construction. On or before October 15, 2010, or within one-
year following county approval, whichever is earlier, Three Trees shat( use its best efforts
to construct the Approach Road according to the specifications set forth on Exhibit
Construction C within one of the two alternate locations set forth on Exhibit Construction
D. Prior to execution of any new contracts for construction of the Approach Road, or any
amendments of existing construction contracts to include construction of the Approach
Road, Three Trees shall provide the proposed contract documents, bids and specifications
to the City for review. The City shall promptly review such documents to confirm that
the proposed construction is consistent with the specifications set forth on Exhibit
Construction C, and that the construction documents provide a realistic and reasonable
proposal for construction of the Approach Road within the time frame and cost
constraints set forth in this Agreement to limit any likelihood that the City and/or Ditch
Company would be required to expend additional sums to complete apartially-completed
Approach Road that has already required expenditure of most or all of the $200,000 sum
described in Paragraph 3, below. If the City determines, in its reasonable judgment, that
the proposed construction contracts and documents are not reasonably likely to permit the
Approach Road to be completed by October 15, 2010, and/or are not reasonably likely to
permit the Approach Road construction to be completed for $200,000 or less, the City
will advise Three Trees. Three Trees may then elect either: Q) to assume responsibility
for any projected cost overruns and for any additional measures or expenses that may be
reasonably required to meet the October 15, 2010 completion date; or (2) to immediately
deposit the sum of $200,000 in escrow as provided in paragraph 3 in lieu of undertaking
road construction, which escrowed funds shall remain allocated toward future acquisition
and construction of access to the Si Johnson Ditch. Except as otherwise provided herein,
all costs associated with the design and construction of the road shall be borne by Three
Trees and/or M.S. 4610, and Three Trees shall be responsible for seeking and obtaining
any requisite county permits and approvals, provided that the City and/or Westchester
shall join in any permit application as co-applicants upon the request of Three Trees.
The City and Westchester shall cooperate with Three Trees and/or M.S. 4610 in
obtaining any such permits or approvals, but will not be required to participate in any
litigation or to grant any additional concessions to adjacent landowners, or to consent to
additional land use approvals for the Three Trees or M.S. 4610 properties. The City shall
have the opportunity to review and approve plans for the road construction, which
approval shall not be unreasonably withheld. Within a reasonable time after construction
of the Approach Road, it will be surveyed and legally described, and the survey and legal
description will be appended to the Si Johnson Ditch Easement Agreement between the
parties that is being signed contemporaneously with this Construction Agreement.
3
Notwithstanding the foregoing, Three Trees and M.S. 4610 shall not be required
to construct the Approach Road if they are unable to perform because of any one or more
of the following:
(a) Acts of Nature (including fire, flood, avalanche, earthquake, storm, or
other natural disaster), geologic conditions, or other physical conditions outside of Three
Trees' and M.S. 4610's control render performance impracticable (for purposes of this
section, "impracticable" is defined as a reasonable determination by Three Trees that
construction of the Approach Road cannot be completed in the manner and within the
time set forth herein using means reasonably available to it);
(b) The parties are unable to obtain necessary permitting afrer making good
faith efforts to obtain the same in order to allow construction to be completed on or
before October 15, 2010;
(c) Litigation or administrative proceedings initiated by other third parties
prevent construction of the Approach Road (provided such proceedings cannot be
resolved cost-effectively in order to allow construction to be completed before October
15, 2010; or
(d) Total costs to construct the Approach Road in accordance with the
specifications set forth on Exhibit Construction C to this Construction Agreement will
exceed $200,000.00, based on actual cost estimates provided by contractors experienced
in such work in the Aspen area.
Until the Approach Road construction is completed, or until October 15, 2010,
whichever is earlier, Three Trees shall not install a pump, pipeline, or associated electric
lines, for the purpose of delivering irrigation water from the Si Johnson Ditch to the Tree
Trees Property. Thereafter, for so long as the Approach Road is not physically in place,
any damage to or destruction of such facilities occasioned during the Ditch Company's
construction of the Approach Road shall be at the sole risk and expense of Three Trees.
3. Security.
If for any reason the Approach Road construction is not substantially completed
by October 15, 2009, Three Trees shall deposit $200,000.00 into an interest-bearing
escrow account to be held by a local title company, or other escrow agent approved by
the City. If Three Trees then proceeds to construct the Access Road between October 15,
2009 and October 15, 2010, Three Trees may withdraw money from this escrow account
to pay invoices for work done on construction of the Access Road, but for no other
purpose. If the Access Road is substantially completed by Three Trees on or before
October 15, 2010, Three Trees shall be entitled to a return of all remaining escrowed
funds upon substantial completion, including any accrued interest. The Parties intend
that this Agreement shall serve as escrow instructions, but agree to execute any additional
escrow agreement required by the escrow agent to the extent not inconsistent with the
terms of this Agreement.
4
If, however, the Access Road is not completed on or before October 15, 2010, all
remaining escrowed funds, together with any accrued interest, shall be distributed to the
Ditch Company, which funds shall thereafrer be utilized by the Ditch Company to secure
access to the Si Johnson Ditch for the Pipeline Repair Project and/or other future Major
Repair projects, but not for other purposes. In particular, the Parties agree that such funds
may be used by the Ditch Company, for example, to secure access to the Ditch and
construction site for the Pipeline Repair Project via helicopter or through other
neighboring properties. Any funds not expended to secure access for the Pipeline Repair
Project will be retained by the Ditch Company, to be applied in its discretion towards
future Major Repair Projects, and/or construction of the Approach Road.
Should the Ditch Company elect to proceed with construction of the Approach
Road itself, either in connection with the Pipeline Repair Project or in the future in
preparation for future Major Repair Projects, the Parties acknowledge that the Ditch
Company will assess its shareholders, including Three Trees, their pro rata share
(according to stock ownership) of any costs of such Approach Road over and above the
remaining funds in the escrow account received by the Ditch Company from the escrow
account. Three Trees and M.S. 4610 agree, for themselves, their successors and assigns,
that if the Approach Road is constructed by the City or Ditch Company, rather than by
Three Trees and/or M.S. 4610, neither the City nor the Ditch Company shall be
responsible for any damage or destruction to structures, landscaping or other amenities
that may occur as a result of their initial construction of the Approach Road itself,
provided that the City or Ditch Company shall use reasonable care to avoid or minimize
damage to any such items located outside of the Approach Road easement.
If Three Trees fails to complete construction of the Approach Road by October
15, 2009, or contribute $200,000 in good funds into escrow by October 15, 2009, as
required by this Agreement, said sum of $200,000, together with interest thereon at the
rate of 12% per annum and any attorney fees incurred in any collection action or lien
foreclosure, shall become and remain a lien upon the Three Trees Property and the MS
4610 Property until it is paid. Three Trees and MS 4610 will execute a Notice of Road
Construction Obligation in the form attached as Exhibit Coustructiou E, to be recorded
following execution of this Construction Agreement. However, upon timely completion
of the Approach Road construction by Three Trees as herein provided, or timely
contribution of the stipulated sum required herein into an escrow account, the City and/or
the Ditch Company shall execute such documentation as Three Trees and MS 4610 may
reasonably request in order to document release of the Notice described herein.
Additionally, should Three Trees fail to complete the Approach Road or contribute the
sum of $200,000.00 into escrow on or before October 15, 2009, and if the parties have
not expressly agreed to any extensions or alternative arrangements by such time, the City
and/or Ditch Company may bring suit against Three Trees to collect the amount due and
enforce a lien against the Three Trees and/or MS 4610 Properties. Additionally, Three
Trees shall not be entitled to seek or obtain a certificate of occupancy from the Pitkin
County Building Department for the new residence on the Three Trees Property, and the
City may discontinue water service to the Three Trees Property, until Three Trees makes
the required payment into escrow or completes the Approach Road in accordance with
this Agreement.
5
4. The Pipeline Repair Project. Upon execution of this Agreement, Three Trees shall
deliver to the City a certified check payable to the Ditch Company in the amount of
$134,000.00, which sum shall subsequently be contributed to the Ditch Company after
incorporation of the Ditch Company and establishment of a Ditch Company bank
account. Thereafter, these funds shall be allocated toward the projected cost of repair of
the piped portion of the Si Johnson Ditch adjacent to and downstream of the M.S. 4610
Property (the "Pipeline Repair Project"). Upon completion of construction of the
Approach Road, the City or the Ditch Company will contract with appropriate contractors
and subcontractors to complete the Pipeline Repair Project, which will proceed according
to the Scope of Work and Specifications attached to this Construction Agreement as
Exhibit Construction C. If the Approach Road is completed on or before October 15,
2010 as herein provided, the City and/or Ditch Company will use reasonable efforts to
assure completion of the Pipeline Repair Project before the end of 2010. If the Pipeline
Repair Project is completed on or before December 31, 2010 and the final construction
costs are less than $134,000.00, the City or Ditch Company shall refund to Three Trees
the difference between the actual construction costs and $134,000.00. The Parties
recognize that events of force majeure may prevent completion of the Pipeline Repair
Project in 2010 even if the Approach Road is timely completed, and that construction
delays may increase the cost of the Pipeline Repair Project. [n the event construction of
the Pipeline Repair Project is delayed beyond December 31, 2010 by events outside of
the reasonable control of the City or Ditch Company, Three Trees will not be entitled to a
refund of any portion of the $134,000.00 payment. In the event that construction of the
Approach Road is not undertaken because of the occurrence of one of the events set forth
in paragraph 2 (a) - (d) above, the City or Ditch Company may, but need not, proceed
with construction of the Pipeline Repair Project in 2010 or at any time thereafter, and
Three Trees will not be entitled to a refund of any portion of the $134,000.00 payment.
The Ditch Company will be ultimately responsible for any costs of construction of the
Pipeline Repair Project in excess of $134,000.00, and the Parties recognize that the Ditch
Company will assess its shareholders, including Three Trees, their pro rata share of any
costs of the Pipeline Repair Project in excess of $134,000.00 according to each parties'
proportionate ownership of shares in the Ditch Company.
5. Temporary Construction Easement. For the purposes of completing the Pipeline
Repair Project, the City or Ditch Company, and its contractors and their agents,
employees and subcontractors, shall also have a temporary construction easement that
will allow the deployment, lowering and raising of workers, supplies, equipment and
materials from the Ditch Access Road to the Ditch by crane, winch or other methods, on
the M.S. 4610 Property. This temporary easement will be for construction purposes
related to the Pipeline Repair Project only, and will terminate when that project is
completed.
6. No Liens. Three Trees and M.S. 4610 agree to defend and indemnify the City, its
contractors, agents, employees, and assigns, including the Ditch Company, against any
claims for payment arising out of the Approach Road Construction, and agree to
immediately discharge any liens placed on the Ditch, Approach Road or Ditch Access
Road by any person working on this project. Likewise, to the extent allowed by law, the
6
City and the Ditch Company reciprocally agree to defend and indemnify Three Trees and
M.S. 4610 against any claims arising out of the Pipeline Repair Project (or the Approach
Road Construction, to the extent such is completed by the City or Ditch Company), and
agree to immediately discharge any liens placed on the Three Trees or M.S. 4610
Properties by any person working on such project, provided, however, that nothing in this
paragraph shall be deemed to limit the placement or enforcement of the lien for non-
payment of the sum of $200,000 into escrow as described in paragraph 3, above. These
obligations to indemnify shall include the responsibility to pay any attorneys' fees or
costs incurred in defense of any such claim by the party or parties indemnified hereunder.
Nothing herein shall be construed to abrogate or diminish any other protections and
limitations afforded to the City by the Colorado Governmental Immunity Act, C.R.S.
§ 24-10-101 et seq. as amended, or other law, in defense of any claim by anyone who is
not a party to this Construction Agreement or the authorized assignee of a party to this
Agreement.
7. Change Orders. Any changes to the Scope of Work or Specifications shall be in
writing, signed by Three Trees, M.S. 4610, the City or Ditch Company, and the party
performing the work.
8. Builder's Risk Insurance. Three Trees and M.S. 4610 shall carry builders risk
insurance as to the Approach Road Construction project, and the City or Ditch Company,
whichever contracts to have the Pipeline Repair Project performed, will carry builder's
risk insurance as to the Pipeline Repair Project. Such builder's risk policies shall be in
the amount of $1,000,000 per occurrence and $2,000,000.00 aggregate, with the policy
issued by a reputable insurance company with an A.M. Best's Insurance Rating of A or
better.
9. Liability Insurance. All contractors engaged on either project shall carry general
liability insurance and worker's compensation insurance, as follows:
a. Commercial General Liability and Worker's Compensation Insurance.
The contractor or contractors who perform the Approach Road Construction and
Pipeline Repair Project will obtain and keep in force commercial general liability
insurance policies in the amount of $1,000,000.00 per occurrence, $2,000,000.00
aggregate, and a Worker's Compensation insurance policy with a $1,000,000.00
limit per injury, and each policy will be issued by a reputable insurance company
with an A.M. Best's Insurance Rating of A or better.
b. Proof of Insurance. All parties under the obligation to obtain insurance
must keep that insurance in force, present proof of insurance before starting any
construction work, and must show proof that the insurance is being maintained
and in effect upon a reasonable request by the City, Ditch Company, Three Trees,
or M.S. 4610.
c. Additional Insureds. Three Trees, M.S. 4610, the City and the Ditch
Company shall be named as additional insureds on each contractor's liability
insurance policies.
10. Assitmment to Ditch Com_panv. Three Trees and M.S. 4610 agee that the City
may assign its rights and obligations under this Construction Ageement to the Si
Johnson Ditch Company, which is to be created as provided in the Master Ageement.
Three Trees and M.S. 4610 consent to any such assignment. The City may not otherwise
assign its rights and obligations under this Construction Agreement without the written
consent of Three Trees and M.S. 4610.
11. Governing Law; Venue; Attorneys' Fees. This Construction Ageement and the
rights and obligations of the parties to it shall be governed by and construed in
accordance with the laws of the State of Colorado. Venue for all actions arising under
this Access Ageement shall be Pitkin County, Colorado. In the event of litigation or
azbitration arising out of or connected to this Access Agreement, the party determined to
be the substantially prevailing party by a court or arbitrator shall be entitled to recover
costs incurred in pursuing such remedies, including expert witness fees and reasonable
attorney fees, in accordance with the court or azbitrator's order and to the extent
permitted by law.
12. Incorooration of Recitals. Definitions and Exhibits. All of the recitals, definitions
and exhibits set forth above or attached are incorporated into the terms and conditions of,
and constitute part of, this Construction Agreement.
13. Authorization of Sienatures. The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Construction Agreement
have been performed and that the persons signing for each party have been duly
authorized to do so. This Construction Ageement is binding upon the parties who have
signed below, their successors and assigns, and any sale of the M.S. 4610 Property or the
Three Trees Property, or any portion of those properties, will be subject to this
Construction Ageement. A Memorandum of this Construction Ageement may be
recorded with the Pitkin County Clerk & Recorder.
14. Counteroarts. This Construction Agreement may be signed using counterpart
signature pages, with the same force and effect as if all parties signed on the same
signature page.
IN WITNESS WHEREOF, the parties have executed this Construction
Ageement the date and year first above written.
THREE TREES, LLC, a Colorado limited liability company
~~l'Qil.~.-t~. ~jc.~.dtt _
By: Warren B. Kanders, Manager
M.S. 4/e610, LLC, a Color"ado limited liability company
By: Warren B. Kanders, Manager
8
CITY OF ASPEN, COLORADO, a Municipal Corporation and
Home Rule Cinty~/
BY~~'14G1~t'F~~li ~ [~7~A--~~j
Title: N.kYHY/
WESTCHESTER INVESTMENTS, a Delaware Corporation
By: Joan Burton Jensen
Title:
STATE OF C C[ L /~~~~ )
~~g ss.
COUNTY OF / I IlE/~t/ )
SUBSCRIBED AND SWORN to before me this ~ day of /Y , 2009,
by Warren B. Kanders, Manager of Three Trees, LLC, a Colorado limit d liability
company.
WITNESS my hand and official seal.
[SEAL] ~ n ~ ,.
-Zi Y/Y"~ ~~1 '
Notary Public o
My commission expires:
THOMAS J. TODD
STATE OF CG < G/1'+~ DC~ ) NOTARY PUBLIC
STATE OF COLORADO
SS.
COUNTY OF ~~r/~/ N ) My Commission E
xpires 72/13/2072
SUBSCRIBED AND SWORN to before me this /~1 day of ,~ ~ 2009,
by Warren B. Kanders, for M.S. 4610, LLC , a Colorado limited liabmpany,
Grantor.
WITNESS my hand and official seal. THOMAS J. TODD
NOTARY PUBLIC
STATE OF C RADO
[SEAL]
Y o i si ~E fires 72/73/2012
My commission expires:
CITY OF ASPEN, COLORADO, a Municipal Corporation and
Home Rule City
BY~_ uc~~ 2tE~
Title: I~ p (Z . ~.
pare Corporation
SUBSCRIBED AND SWORN to before me this ~ day of„y_ 2009,
by Warren B. Kanders, Manager of Three Trees, LLC, a Colorado limit d liability
company.
WITNESS my hand and o#Iicial seal.
[SEAL] l
-~; y~ nom' , J ~.,~-r'
Notary Public
My commission expires: __ - „~^
THOMA5J.TODD
STATE OP C~GC G/T'r9OU NOTARY PUBLIC
STATE OF COLORADO
) SS. My Commission Ex tres Y2J13/2012
coIJNTY OP /~~ J~r ~ n/ ) P
r
SUBSCRIBED AND SWORN to before me this ~ day of ~/vJ , 2004,
by Warren B. Kanders, for M.S. 4610, LLC, a Colorado limited lia-bilit~y company,
Grantor. _ _
WITNESS my hand and official seal.
[SEAL]
THOMAS J. TODD
NOTARY pUBLIC
STATE OF COf7ltzenn
tyta/2012
My commission expires:
STATE OF C G i; Z$l1 G )
ss.
COUNTY OF ~l III /~tJ )
STATE OF COLORADO 1
~ ss.
r •..••. OF PITKIN )
~ ANDS ORN to before me this ~ Y day of , 2009,
try , ~!~ for the City of Aspen, orado,
rar~tee. M
'd~"~ t
my hand and official seal.
~` [SEAL]
~`w Cornnilssion Expires 0912512009
~~,L. ~~~~~~
Notary Public
My commission expires:
STATE OF t`~02~~A )
ss.
COUN"fY OF Mt nr~~ ade )
SUBSCRIBED AND SWORN to before me this.29 day of S"nr\~AQT, 2009,
by Joan Burton Jensen, for Westchester Investments, h1c.
My commission expires:
'Commtl D00014937
Expires 9111!2012
PloiWe IJdary Assn., Inc
10
STATE OF COLORADO
COUNTY OF PITKIN
by
ss.
SWORN to before me this ~V day of , 2009,
for the City of Aslorado,
~~
and official seal.
My Com~jc~~gj~{~~2~ires:
Notary Public
SUBSCRIBED AND SWORN to before me this day of , 2009,
by Joan Burton Jensen, for Westchester Investments, Inc.
Notary Public
My commission expires:
10
STATE OF )
ss.
COUNTY OF _ )
EXHIBIT CONSTRUCTION A
MS 4610 PROPERTY
the portion of unpatented U.S. Mineral Survey No. 4610 lying
within Section 13, Township 10 South, range 85 West of the
Sixth P.M., as described in Correction Quit Claim Deed
recorded May 10, 1995 in Book 780 at Page 529
County of Pitkin, State of Colorado
EXHIBIT CONSTRUCTION B
THREE TREES PROPERTY
Lot 2, Hefner Subdivision
according to the plat thereof recorded
April I5, 1985 in Plat Book 17 at Page 11
County of Pitkin, State of Colorado
12
EXHIBIT CONSTRUCTION C
SCOPE OF WORK AND SPECIFICATIONS
Scope of Work.
a. Approach Road Construction. The work will require the
construction of an Approach Road running in an approximate grade of 15%, and capable
of supporting and accommodating construction vehicle travel by a tandem dump truck or
similar equipment (with an approximate width of 8 feet, length of 25 feet, and weight of
up to 54,000 pounds with a full load), the Approach Road a having a usable roadway
width of at least 10 feet in width. The Approach Road will be connected to the Ditch
Access Road so as to enable a tandem dump truck or similar equipment to move to and
from the Ditch Access Road freely without traveling outside the Ditch Access Road
Easement or Approach Road Easement.
b. Pineline Repair Project. The work will entail supporting the piped
portion of the Ditch with cables anchored into bedrock and/or placing supporting timbers
beneath the pipe so as to stabilize and level the pipe prior to lining it. The work will also
entail the lining of all piped sections of the Ditch from the M.S. 4610 Property to the end
of the pipe in the direction of 7`h Street in Aspen, including the section of pipe buried
under a scree Feld, with an epoxy resin liner.
2. Specifications.
a. Approach Road. The Approach Road shall be constructed along a
centerline running in an approximate grade of 15%, and capable of supporting and
accommodating construction vehicle travel by a tandem dump truck or similar equipment
from Toby Lane, across a portion of the existing driveway of the Three Trees Property
and thence along a straight alignment along the hillside to ajunction point with the Ditch
Access Road (as defined in the Construction Agreement) on the M.S. 4610 Property.
NOTE: Although the present plans include construction of l0' wide road, this will in no
way reduce the width of the 20' easement that is being granted by Three Trees and M.S.
4610 for this road, nor limit future construction of a wider road within the easement. No
alterations are anticipated to be required to the driveway to connect to the Approach
Road, although the driveway must be constructed in a manner that will allow construction
vehicle travel across the driveway and to the Approach Road by a tandem dump truck or
similar equipment. The Approach Road must be designed to connect to the driveway in a
manner that will allow the construction vehicle travel.
b. Pipeline Repair Project.
(1) Stabilization and Support. Prior to installing the line in the
pipeline, the general contractor or subcontractors will straighten the pipeline and return it
to a consistent profile, and repair the rotting wooden supports beneath it will be repaired
or rebuilt, and, as necessary, add additional pipeline support structures with new metal
support cables anchored to bedrock as needed to provide adequate pipe support. The
13
City's consulting engineer, Charles Peterson, will approve the final bid and scope of
work for the pipeline straightening, repair of the wooden support structures underlying
the pipeline, and installation of additional anchor bolts. The parties acknowledge that a
proposal by B&Y Drilling Inc. dated October 21, 2008, may require revisions in order to
meet Mr. Peterson's requirements for the stabilization and support component of the
Pipeline Repair Project. There will be no replacement of any structure underneath the
pipe unless sufficient bearing conditions are found underneath the pipe that can support
the structure. Any structure constructed under the pipe will consist of pressure treated
timbers. The parties acknowledge that the proposal by B&Y Drilling Inc. requires
unrestricted vehicular, equipment and pedestrian access to the closest point of the work
area. The B&Y Drilling proposal shall be extended through October 15, 2010 and made
assignable to the City or Ditch Company through that time.
(2) Pipe Liner. The pipe will be lined with a structural, cured-
in-place epoxy resin liner. The liner will be applied to the interior of the pipe, according
to manufacturer's specifications, which are incorporated into these specifications by
reference, and will be applied in a good and workmanlike manner free from defects and
adequately for the intended purposes of carrying all Si Johnson Ditch water rights
through the Si Johnson Ditch. The City may, but need not, accept the proposal for such
work by W.S.U. Inc. dated October 20, 2008, for such work. The W.S.U. proposal shall
be extended through October 15, 2010 and made assignable to the City or Ditch
Company through that time.
(3) Additional Project Requirements. Harriman Construction
Inc., by memorandum dated October 21, 2008, has advised that a crane, water truck and
laborer will also be required in connection with the pipe lining project, and those will also
be included as part of the pipe liner project. Any bids or contracts for these services
shall be assignable to the City or Ditch Company.
(4) Miscellaneous. Any small and miscellaneous repairs such
as patching, caulking, sealing, and reinforcing areas of exterior of the pipe will be done if
in the reasonable judgment of the general contractor or the project engineer that work
would be advisable.
14
'I~aa~aeyrr~~~€s ~..
p a{.i£ to .. I
EXHIBIT CONSTRUCTION D } A~1
5 Pa
1 u I 5~w~~ ~i~~ ~ ~t a IAI ate.. t} i ;~~
a F ° ltAl ra°~ °}.91.}aF'a a
~~~1~; ~
c~~,~~t ~~~,
NOTICE OF APPROACH ROAD CONSTRUCTION OBLIGATION
THIS NOTICE OF APPROACH ROAD CONSTRUCTION OBLIGATION
(the "Notice") is executed by THREE TREES, LLC, a Colorado limited liability
company ("Three Trees"), MS 4610, LLC, a Colorado limited liability company "MS
4610") and THE CITY OF ASPEN, CO~ORADO, a home rule Colorado municipality
("City") and is dated effective as of the day of ~ 2009.
WHEREAS, effective as of~ alt ~t1~, 2009, Threes Trees, MS
4610, Westchester Investments, Inc. and the City entered into that certain Access Road
Construction Agreement (the "Agreement"). The Agreement provides, among other
things, that Three Trees has the obligation to construct an approach road "Approach
Road" across the real property described on Exhibit "A" (the "Three Trees Property")
along the alignment described on Exhibit "B" (the "Easement Alignment").
In the event that the Three Trees Approach Road Construction Obligation is not
satisfactorily performed or otherwise terminated within one year from the date of this
Notice, then the Si Johnson Ditch Company ("Ditch Company"), a mutual ditch
company to be formed by the parties in the near future, shall have the right to specially
assess Three Trees and enforce an assessment lien against the Three Trees Property or
adjacent property owned by MS 4610 (described in Exhibit C) in an amount of up to
$200,000, and in such event, the parties expressly agree and acknowledge that the
priority of such lien shall relate back to the date of this Notice, it being the express
stated intention of the parties that such lien for assessments shall be a first and prior
lien as it relates to any other subsequent lien or encumbrance that may be recorded
against the Three Trees Property or the MS 4610 Property from and after the date of
this Notice.
The Three Trees Approach Road Construction Obligation shall cease to exist and
be of no further force or effect upon satisfaction or waiver of certain contingencies
described in the Agreement. In the event the Road Construction Obligation ceases due
to satisfaction of the contingencies described in the Agreement, then a separate,
recorded instrument acknowledging the same shall be recorded in the real property
records of Pitkin County, Colorado.
IN WITNESS WHEREOF, the undersigned have executed this Notice and have
caused the same to be recorded in the real property records of the Clerk and Recorder
for Pitkin County, Colorado, in order to place third parties on notice as to the existence
of the Approach Road Construction Obligation described above.
THREE TREES:
THREE TREES, LLC, a Colorado
limited liability company
By:
MS 4610:
MS 4610, LLC
a Colorado limited liability company
By:
CITY OF ASPEN, COLORADO, a
Colorado home rule municipality:
By: Ll/f Z "/d -~
Title: /'cYL~""
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this _ day of
2009, by ,Manager of Three Trees LLC, a
Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
2
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of
2009, by ,Manager of MS 4610, LLC, a
Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrume~}t.,~wa ack~yvled ed pefore~~me this ~~day of
2009, by 11F~~~'Q~ L'~.~
of the City of Aspen, Colorado, a Colorado home rule municipality.
Witness my hand and official seal.
~PL..N~~ mission expires: Q
,~pTAl~y ~?i ~~~
No ary Public
~G~~
My Cdnmbeton Expires 09125'2009
3
THREE TREES:
THREE TREES, LLC, a Colorado
limited liability company
By: I~ sukt t~urc~>~..
MS 4610:
MS 4610, LLC
a Colorado limited liability company
By:! `~ I'~'~
CITY OF ASPEN, COLORADO, a
Colorado home rule municipality:
STATE OF NEW YORK BY~-
COUNTY OF NEW YORK Title:
~~~oi lvi~iimv
ss.
rnrrwr~rv n^ nr~rv rT.r
The fo •egoing instrument was ac no led ed before me this day of
2009, by ,Manager of Three Trees LLC, a
Colorado limi ed liability company.
Witness my hand and official seal.
My commission expires: ~'~~ ~~
C otary Public ~~/<`/tt=0
+----,.
MARIE CALVIN MOTT
Notary Pub!io, St"e of New York
a C N^ (i rnr d 05926
- C~oyukn~t~o ~~
Cent -.~; Y-~L~unN~ ~~~
e Comm~ssibn !. _ ~ p
s
2
/~ STATE OF NEW YORK
COUNTY OF NEW YORK
CTAT~-v° oeT ~ ° ~ca~ )
) SS.
)
The foregoing instrument was acknov ledged before me this ~ day of
~ , 2009, by d~~- Manager of MS 4610, LLC, a
Colorado li rted liability company.
Witness my hand and official seal.
My commission expires: ,S~-..2/- ~~
r~
otary Public
MARIE GALVIN MOTT I
Notary Public, Stale of New York i
~-4795926
STATE OF COLORADO ! ~ ,N rv '^9~ County Y
) Certrfic=,i~ ! ~ in IJ,~,W Yo~}c Counri
) SS. f Commission Expires 71-.,L/ 20 ~ µ
COUNTY OF PITKIN ) - -__~
The foregoing instrument was acknowledged before me this day of
2009, by as
of the City of Aspen, Colorado, a Colorado home rule municipality.
Witness my hand and official seal.
My commission expires:
Notary Public
3
EXHIBIT A
THREE TREES PROPERTY
Lot 2, Hefner Subdivision
according to the plat thereof recorded
April 15, 1985 in Plat Book 17 at Page 11
County of Pitkin, State of Colorado
4
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EXHIBIT C
MS 4610 PROPERTY
the portion of unpatented U.S. Mineral Survey No. 4610 lying
within Section 13, Township 10 South, range 85 West of the
Sixth P.M., as described in Correction Quit Claim Deed
Recorded May ]0, 1995 in Book 780 at Page 529
County of Pitkin, State of Colorado
RECEPTION#: 561707, 08/06/2009 at `~
11:53:52 AM, ____~
t OF 6, R $31.00 Doc Code AGREEMENT
Janice K. Vos Caudill, Pitkin County, CO
CITY OF ASPEN
AMENDMENT TO WATER SERVICE AGREEMENT
~ J~s Amendmen to Water Service Agreement ("Amendment's is entered into this
-(!L? ~1_ ~Y of,~~~2fI , in Aspen, Colorado, between THE CCfY OF
ASPEN, a Colorado mumcipal corporation and home rule city whom address is 130 South
Galena Street, Aspen, Colorado 81611(hereafter the "City"), end Throe Trees, LLC a ]invited
liability compatty organized under the laws of Colorado, whose address is c% Thomas J. Todd,
Esq., Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 81611 (hereinafter "Three
Trees's.
WITNESSETH
WHEREAS, the City is party to a water service agreement dated December 17, 1996,
with Billy Ray Eubanks and Bonnie Jean Eubanks, recorded with the Pitkin County Recorder at
Reception No. 427860 (the "Original Water Service Agreement's; and
WHEREAS, the Original Water Service Agreement authorizes the City to provide certain
extraterritorial municipal water service the Eubanks' property ("Subject Property's, which is
described as
Lot 2, HEFNER SUBDIVISION, according to the
plat thereof recorded Apri115, 1985, in Plat Book
17, at Page 11, in Pitkin County, Colorado,
also lmown as street and number: t Toby Lane, Aspen, Colorado; and
WHEREAS, Three Trees is successor-in-interest to the Subject Property; and
WHEREAS, the Original Water Service Agreement authorized the City to provide treated
water service to the Subject Property in its tlten-current conditioa, and also stated that any
change in the treated water service requirements for the Subject Property would require
amendment of the Original Water Service Agreement; and
WHEREAS, Three Trces seeks water service for a new single-family residence on the
Subject Property, which will be constructed to replace the Eubanks' original residence; and
WHEREAS, the new single-family residence will have treated water service
requirements different from those served pursuant to the Original Water Service Agreement, thus
requiring amendment of the Original Water Service Agreement; and
WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requues
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,
aad 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 permiu water service extension
only upon demonstration that such extension will meet the policy goals and requirements of
AmeMment m WorxSmkrAgra"enr (aB08j
Resolution No. 5 (Series of t 993) 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 vests associated with providing such extraterritorial
service, and make a profit; and
WHEREAS, the City has determined that this Amendment and all covenants herein are
naxssary to comply with the Code and the Cit}~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 intrnding to provide water service
extraterritorially; and
WHEREAS, the City is willing to amend the Original Water Service Agreemrnt and to
provide water service to the Subject Property on the terms and conditions of the Original Water
Service Agreemem as amended by this Amendment;
THEREFORE, in wnsideration of the premises and the mutual promises and covenants
contained herein, the City and Three Trees agree as follows:
1. Treated Water Service Eo Subject Property. The City hereby agrees to provide tremted
water service to the new single family residence on the Subject Property under the terms of the
Original Water Service Agreement (as modified by this Amendment) in such quantities and to
the extent herein provided so as to serve the structures and indoor treated water uses authorized
by Pitkin County under the approvals granted to Three Trees as recorded at Reception No.
. The City will continue to be the sole provider of treated water service to the
Subject Property, and shall continue to provide treated water service adequate to mcet the
approved demands and uses of one single-family residence on the Subject Property, provided,
however, that the water service provided pursuant to the Original Water Service Agreement
(2.97 ECUs) shall be increased to no more than 6.0 ECUs, and Three Trees expressly
aclmowledgea that the City shall not be required to supply water to serve more than 6.0 ECUs,
and further provided, that the maximum volume of treated water the City shall be required to
provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 2.4
acre-feet per year, Only the single family structure approved by Pitkin County pursuant to the
above-described approval may be served under the Original Water Service Agreement as
amended by this Amendment. No outdoor irrigation using treated water is permitted by the
Original Water Service Agrcemant as amended by this Amendment. Any further expansion in
the Heated water service requirements for the Subject Property above 6.0 ECUs or 2.4 acre-fat
per year, or any outdoor water use, will require approval by the City, and further amendment of
the Original Water Service Agreement, and the City makes no guarantees or assurances that any
such tegttested amendment will be approved.
2. Raw Water Use on Subject Procertv. The City acknowledges that Three Trees intends to
use untreated water from the Si Johnson Ditch for revegetation and outdoor landscaping
purposes, and this water and/or water rights will be acquired from Westchester Investments, Imc.
Three Trees acknowledges that use of such untreated water will require installation of a pump in
the Si Johnson Ditch in order to deliver the water to the Subject Property. Three Trees further
acknowledges that the City owns an interest in the Si Johnson Ditch and water rights decreed
thereto, and operates and maintains the ditch for its own benefit, and for the benefit of others
holding water rights decreed to the Si Johnson Ditch including Three Trees' grantor, Westchester
A~el,~,ml m WaM Sarvkr AgroameM (ataBJ
Investments, Inc. Throe Trees will install a pump, wingwalls, and overflow devices to allow it to
take delivery of its entitlement from the Si Johnson Ditch, and will submit designs and plans for
such equipment and devices to the City for approval prior to installation, which approval shall
not be unreasonably withheld or delayed. Three Trees will be responsible for obtaining any state
administrative or water court approvals that may be required in order for it to use the Si Johnson
Ditch water at the location and in the manner it desires, provided that the City shall not oppose
and shall cooperate with Thre Trees in obtaining such approvals, if any, so long as the City's
own water rights will not be adversely affected thereby. Other than by use of the above-
described untreated water from the Si Johnson Ditch on the Subject Property, Three Trees agrees
that uatess the Origins! Water Service Agreement is further amended (which the City has no
obligation to do), there will be no outdoor irrigation on the Subject Property with water delivered
from the City's system or from any wells or other water rights on the Thrx Trees' property, end
that neither Three Trces nor any owner or user of the Subject Property will otherwise develop or
utilize any other iadepeadent raw water systems andlor water rights or wells within the Subject
Property. The parties acknowledge that the Subject Property is presently connected to the City
water, and is also served by a well bearing Permit No. 276472. Three Trees agrees that this well
and any other existing well on the propcrty must be plugged and abandoned in accordance with
the well abandonment procedures of the Colorado State Engineer, and that Three Trees will
provide the City with evidence of such abandonment within 30 days of approval of this
Amendment by the Aspen City Council In the event Three Trees fails to abandon the well and
provide proof of such abandonment by this date, the City will disconnect the existing water tap
to the Subject Property, at Three Trees' cost, and will not reconnect the Subject Property to the
City water main until such well abandonment and proof thereof have been provided to the City.
3. Ts2 Fees. Svstem Develoument Chases. and Payment in lieu of Water Rights Dedication
- Computation and Payment: Schedulin¢ of Taos.. All tap fees for treated water service herein
provided shall be assessed utilizing the City's prevailing applicable tap fee. As authorized by
Code Section 28.12.070, credit shall be provided for previously-paid tap fees, well system
development fees, end fees paid in lieu of water right dedication. All applicable tap fees, well
system development fees, and payments in lieu of water rights dedication, and other hookup
charges shall be paid at the time of building permit issuance.
4. j,imitations on Provision of Water Service. The Original Water Service Agreement, as
amended by this Amendment, is only for the supply of treated water service as herein described
and no expansion of uses, connections, or water service beyond those set forth herein is in any
way authorized by the Original Water Service Agreement or this Amendment.
S. Pronertv Rights in Water. All water furnished under the Original Water Service
Agreement as amended by this Amendment is provided on a contractual basis for use on the
Subject Property as described in the Original Water Service Agreement, as emended by this
Amendment, and all property rights to the water to be famished hereunder are reserved to the
City. Water service provided under the Original Water Servico Agreement as amended by this
Amendment does not include any right to make a succession of uses of such water, and upon
completion of the primary use of the water on the Subject Property, all dominion over the water
provided reverts completely to the City. Subject to the prohibition against waste and any other
limitations on water use imposed in the Original Water Service Agreement, Three Trees shall
have no obligation to create any particular volume of return flow. Three Trees agrces 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.
Anrndn,wro NaNrSsrvitt Agre~meM rDBaBJ
6. Enforcement by the City. Three Trees recognizes and agrees that the City has the right to
enforce its rules, policies, regulations, ordinances and the terms of the Original Water Service
Agreement and this Amendment, by the disconnection of the, supply of water provided
hereunder. Additionally, in the event that Three Trees violates the rules, policies, regulations or
ordinances of the City or the terms of the Original Water Service Agreement or this Amendment,
the City shall have all remedies available to it at taw or in equity, or as provided in the Code.
The City shall be flee from any liability arising out of the exercise of its rights under this
paragraph.
7. Termination if Illegal. The patties agree, intend and understand that the obligations
imposed by the Original Water Service Agrcement and this Amendment are wnditioned upon
axing consistetn with state and federal laws and the Code. The parties further agrce that if any
provision of the Original Water Service Agreement as amended by this Amendment becomes in
its performance inconsistent with the Code ar state or federal laws, or is declared invalid, the
parties shall in good faith negotiate to modify the Original Water Service Agreement and this
Amendment so as to make them consistent with the Code or state or federal laws as appropriate,
and i$ after a reasonable amount of time, their negotiations are unsuccessful, this Agreement
shall terminate.
8. Annexation. Upon the request of the City, Throe Trees, or its successor-in-interest, shall
petition for and/or wnsent to the annexation of the Subjcet Property to the City of Aspen at such
time as dttertnined by the City in its sole discretion, all as authorized pursuant to C.RS. § 31-12-
12! (200'x. Although land use approvals or development rights not vested in accordance with
law prior to the annexation shall be subjeM to the terms, conditions, and regulations ofthe Aspen
Municipal Code upon and after annexation, aanexation shall not divest or diminish any land use
approvals or development rights awarded by Pitkin County for the Subject Property, to the extent
such approvals and rights are legally vested on behalf of Three Trees prior to annexation to the
City. Nor shall anrxxation alter Three Trees' or its successors' rights to ownership and use of
water rights in the Si Johnson Ditch or Three Trees' role as a stockholder in a mutual ditch
company to be incorporated for the Si Johnson Ditch. Notwithstanding annexation, the Original
Water Service Agreement as amended by this Amendment will govern provision of water service
to the Subject Property. This Paragraph 8 shall serve as the annexation agreement between the
parties, and the agreement to annex set forth herein shall be enforceable by an action for specific
performance filed by the City in the Pitkin County District Court pursuant to C.RS. § 31-12-121
(2007), in which event the City shall charge, and Three Trees or its successor-in-interest shall
pay, alt costs and fees associated with such enforcement action.
9. No ated Public Utility Status. The parties agree that the City does not become a
regulated public utility compelled to serve other parties similarly situated as a result of the
Original Water Service Agreement or this Amendment. Throe Trees agrees that neither it, nor its
successors is interest or assigns shall at any limo petition the Colorado Public Utilities
Commission to acquire jurisdiction over any water rate set by the City. The parties agree that in
the event the City is held to be a regulated public utility by virtue of the Original Water Service
Agreement or this Amendment, the Original Water Service Agreement and tlvs Amendment
shat] terminate and be of no further force or effect
10. Amendment: Assitmment Neither the Original Water Service Agreement {as amended
by this Amendment), nor the obligations of either party hereto, nor the right to receive water
service hereunder, may be amended or assigned without the written consent of Ute parties hereto,
provided, however, that subsequent owners of the Subject Property shall be subject to the terms
Mwndwa(ro WeMServios Agmmex (0808)
and conditions of the Original Water Service Agreement, as amended by this Amendment, and
shall be eruiUed to receive water service pursuant to the Original Water Service Agreement as
amended by this Amendment.
11. 1}i~g agreement -Recording. This Amendment is binding upon the parties hereto,
their successors and assigns, std any sale of the Subject Property shall be subject to the Original
Water Service Agreement as amended by this Amendment. This Amendment shall be recorded
with the Firkin County Clerk and Recorder, and shall impose wvet~ants running with the land
upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this
Amendment and the obligations contained herein.
12. 0ythorization of SignaNres. The parties acknowledge and represent to each other that all
procedtues necessary to validly cotttract and execute this Amendment have been performed and
that the personv signing for each party have been duly authorized to do so.
13. Cozen arts. This Ametdment may be signed using counterpart sigoature pages, with
the same force and effect as if all parties signed on the same signature page.
14. Oriaiml Water Service Agreement Remains in Effect. Except as herein expressly
amended, the Original Water Service Agreement remains in full force and effect.
IN WITNESS WHEREOF, Ute parties have executed this Amendment the date and year
first above written.
THE CITY OF ASPEN,
COLORADO
ATTEST: A Municipal Corporation and
Home Rule City
gy ~ gy Z!e~~'~~-
City Clerk j Mayor
APPROVED AS TO FORM:
z/~o/ 9
l_9spa r tb ey
Three Trees, LLC
gy ~'VA~.ctvt f!-unrGrn- -
Title: kA
APPROVED AS TO FORM:
Ams~4nx,l to wanrSsnkx Ageneuv /0808)
Attorney for Tl Trees LLC
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
Subsc 'bed and sworn to before me this ~ day of `~~ ~µa "~ 2008,
by Wp ri~a~ s>r~ ~ of Three Trees LLC.
Wifiess my hand and offecial seal. My commission expires
Notary Public
(SEAL)
THOMAS J. TODD
NOTARY PUBLIC
r~Famw~rro. ir.r,wsw~a,.~..„~.~~,~.az~o,.,a STATE OF COLORADO
My Commission Expires 1?/13/2p1P
AwrndRtM b Wqn StrvfOt.lyrsrmeN (DPQT)
RECEPTION#: 561708, 08/06/2009 at
11:53:53 AM,
1 of 2, R $11.00 DF $0.00 Doc Code QCD
Janice K. Vos Caudill, Pitkin County, CO
QUIT CLAIM DEED
(water rights)
WESTCHESTER INVESTMENTS, INC., a Delaware Corporation ("Grantor")
for good and valuable consideration, in hand paid, hereby remises, releases, sells, and
quitclaims to THREE TREES, LLC, a Colorado limited liability company whose
address is 1 Landmark Square, 22nd Floor, Stamford, CT 06901, and M.S. 4610, LLC, a
Colorado limited liability company (collectively "Grantees"), whose address is c/o
Holland & Hart LLP, 600 E. Main St., Suite 104, Aspen, CO 81611 (collectively
"Grantees"), as tenants in common, and in equal, undivided interests, the following water
right located in the County of Pit in, State of Colorado:
Name Appropriation Adjudication Case Source Total Amount
Dates Date Number Decreed Conveyed to
Amount Grantees
Si 1/10/1926 08/25/1936 C.A. 3082, Castle 5.50 c.fs. Q.50 c.fs.*
Johnson (Priority 422) Garfield Creek
Ditch 5/1/1932 County
(Priori 435) District Ct.
*It is the intent of the Grantor that Grantees shall receive 0.50 c.f.s. and Grantor shall retain 0.667 c.f.s, of
the 1.167 c.fs. described in that Bargain and Sale Deed from Hans R. Graminger to Westchester
Investments, Inc. dated February 16, 2000 and recorded in the Office of the Pitkin County Clerk &
Recorder on February 16, 2000 at Reception No. 440565. As such, after delivery of this deed, the parties
intend that Grantor shall be entitled to approximately 12.1% (0.667/5.50), and Grantees shall be entitled to
approximately 9.1 % (0.50/5.5), of available ditch flows under either or both adjudicated priorities).
TO HAVE AND TO HOLD the same together with all and singular the
hereditaments and appurtenances belonging, or in anywise appertaining, to the water
right quitclaimed by this instrument (including but not limited to non-exclusive interests
in all existing easements, rights-of-way, authorizations, or other rights or benefits
associated with said water right), the reversion and reversions, remainder and remainders,
rents, issues and profits thereof, and all the estate, right title, interest, claim and demand
whatsoever of the Grantor thereof, either in law or equity.
1N WITNESS WHEREOF, the Grantor has executed this deed on the date set
forth above.
[this space left blank intentionally]
.,
Water Rights Quit Claim Deed
Westchester /nvestments, /nc., Grantor
Three Trees, LLC and M.S. 4610, LLC, Grantees
Page 2
DATED this 20`h day of July, 2009.
STATE OF FLORIDA }
} ss.
COUNTY OF MIAMI-DADE }
Subscribed and sworn to before me this 20`h day of July, 2009 by Steven I. Bandel
as Director of Westchester Investments, Inc., a Delaware corporation, who is personally
known to me.
WITNESS my hand and c
My commission expires:
EgWi00LHERNANDEZ
x MYWMMISSIONODD552236
EXPIRES: Jwe 29, 2010
9awN0 fiu Nomiy vW k undexvlne
2