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Home My WebLink Aboutresolution.council.082-10 1 C RESOLUTION NO. 6 Series of 2010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN AMENDMENT TO THE 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, the City is party to agreements recorded August 6, 2009 at Reception No. 561702, with Three Trees LLC, M.S. 4610 LLC and Westchester Investments, Inc. ( "Agreements ") whereby Three Trees LLC and M.S. 4610 LLC have agreed to perform or pay for certain road construction and irrigation system repairs to the Si Johnson Ditch; and WHEREAS, the Agreements require Three Trees LLC and M.S. 4610 LLC to either construct the Approach Road to the Si Johnson Ditch, or pay the sum of $200,000 to the Si Johnson Ditch Company by October 15, 2010; and WHEREAS, Three Trees LLC and M.S. 4610 LLC have asked that the deadline of October 15, 2010 be extended for one year, until October 15, 2011, because of construction and permitting delays; and WHEREAS, City staff has advised the City Council that the City and the Si Johnson Ditch Company will be best served by having the Approach Road constructed by Three Trees LLC and M.S. 4610 LLC, and therefore the City staff recommends extension of this deadline and approval of the First Amendment to the Agreements; and WHEREAS, City Council has had the opportunity to obtain such advice and information as it deems appropriate and necessary regarding the proposed First Amendment to Agreements, THEREFORE, BE IT RESOLVED, by the City Council of the City of Aspen, that the First Amendment to the Agreements is hereby approved. The Mayor, City Manager, City Clerk and the "'"'" RECEPTION #: 577446, 02/07/2011 at 08:59:48 AM, 1 OF 6, R $36.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO Utilities Director are hereby authorized and directed to execute the First Amendment, and any related documents necessary or desirable to effectuate the transactions provided for in the Agreements, as amended by the First Amendment. Dated: / n / L '/ ( APPROVED by the City Council of the City of Aspen on the /o. day of 664 2010. friat---4 - Mayor Attest: Diu;- �C-/Let-., /cam ��7 City Clerk FIRST AMENDMENT TO SI JOHNSON DITCH APPROACH ROAD CONSTRUCTION AND PIPELINE REPAIR AGREEMENT This First Amendment to the Si Johnson Ditch Approach Road Construction and Pipeline Repair Agreement ( "First Amendment") is made and entered into this 11 day of etsfOLN , 2010 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 Parties entered into the Si Johnson Ditch Approach Road Construction and Pipeline Repair Agreement effective August 6, 2009, a copy of which was recorded in the Office of the Pitkin County Clerk & Recorder on August 6, 2009, Reception No. 561706 ( "2009 Agreement"); and WHEREAS, pursuant to Paragraphs 2 and 3 of the 2009 Agreement, Three Trees agreed to use its best efforts to construct the Approach Road on or before October 15, 2010 and, if the road was not constructed, to contribute $200,000 to the Ditch Company by October 15, 2010; and WHEREAS, although Three Trees has used its best efforts to pursue the proposed construction project, additional time is required to complete the project; and WHEREAS, the Parties are willing to extend certain deadlines and change certain terms of the 2009 Agreement as set forth below, provided that except as amended herein, all prior agreements between the Parties shall remain in full force and effect. NOW THEREFORE, in consideration of the mutual promises set forth herein, and other good consideration, the sufficiency of which is acknowledged, the Parties further agree as follows: 1. All defined terms herein shall have the same meaning as set forth in Paragraph A.1 of the 2009 Agreement. 2. The deadline set forth in Paragraphs B2 and B.3 of the 2009 Agreement for completion of the Approach Road or payment of $200,000 in lieu thereof to the Ditch Company is hereby extended until October 15, 2011. However, should an emergency arise such that a Major Repair to the Ditch becomes necessary in the opinion of a Colorado - registered professional engineer retained by the City or the Ditch Company between the date of this First Amendment and the date that construction of the Approach Road commences, upon request of the City or the Ditch Company Three Trees shall immediately contribute $200,000 in good funds to the Ditch Company to be applied, at the discretion of the Ditch Company, toward the purchase of a permanent easement in order to effect the Major Repair and to address all future major maintenance and repair needs.I In that case, Three Trees shall no longer be obligated to construct the Approach 1 Road, but Three Tree will still have any and all obligations to contribute its proportional share to the Ditch Company for the Major Repair. 3. Paragraph B.2 of the 2009 Agreement also contemplated that Three Trees would apply for approval from Pitkin County to build the Approach Road and that, if requested by Three Trees, the City would participate as a co- applicant. Since the City is majority owner of water rights decreed to the Si Johnson Ditch, and since water delivered through the ditch is utilized for a variety of public purposes, these provisions are hereby amended such that the City will apply to Pitkin County for location and extent review of the Approach Road construction project pursuant to Pitkin County Ordinance No. 008- 2010, Pitkin County Code Section 2- 30- 30(h)(10), and C.R.S. Section 30- 28- 110(1). Three Trees shall reimburse the City for any application or publication fees associated with such proceeding, and shall provide the City with all engineered drawings or other materials necessary for the City to complete the county's location and extent review process. The City shall file a complete location and extent review application with Pitkin County Community Development on or before December 15, 2010. Thereafter, the City and Three Trees shall cooperate to facilitate timely completion of the location and extent review process by Pitkin County. 4. Except as amended herein, all prior written agreements between the Parties shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this First Amendment the date and year first above written. THREE TREES, LLC, .�a limited liability company 4IM10I &- By: Warren B. Kanders, Manager M.S.,4610, LLC, a olorado limited liability company WaAritila -, By: Warren B. Kanders, Manager CITY OF ASPEN, COLORADO, a Municipal Corporation and Home Rule City By t24 , G /c / fe itil'D Title: MA` /c2 WEST STER INVEST 0 S, a De1a orporation a - /— Eduaro . ernandez Title: <C Cr,2,FT?Pre' ' 2 a pe') 3 Crslc- X STATE OFt(2 't V-) ) ss. COUNTY OF ) SUBSCRIBED AND SWORN to before me this 10 day of 10c -, 2010, by Warren B. Kanders, Manager of Three Trees, LLC, a Colorado limited liability company. WITNESS my hand and official seal. [SEAL] (24 i jennoiPir N Public My commission expires: JOANNE A. ROMANIELLO NOTARY PUBLIC My Expires August 31, 201t STATE OF ) ) ss. COUNTY OF SUBSCRIBED AND SWORN to before me this _ day of , 2010, by Warren B. Kanders, for M.S. 4610, LLC, a Colorado limited liability company, Grantor. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: '/ C9egt ' STATE OF COLORADO ) ss. COUNTY OF PITKIN ) „SUBSCRIBED AND SWORN to before me this j5 day of Q atob-cr, 2010, b City Attorney for the City of Aspen, Colorado, Grantee. —s U g, WI'"1ESS my d official seal. • [SEAL] /1/4.„,1 / otary Pub c Myc\q ices: 0 4 STATE OF . 6,,,,,e0.6,4 ) , '' ) ss. COUNTY OFiMSba,•tt Pk$ SUBSCRIBED AND SWORN to before me this $ day of VCSDha, 2010, by Eduardo L, Hernandez, for Westchester Investments, Inc. Notary Public My commission expires: '-v A - e . z, 2 O it rA + CARY M.0TAZO -- .. MY COMMISSION O DD 8682a8 `�`? Od Wa :Mez Una ' , n albn 5