HomeMy WebLinkAboutresolution.council.002-11 RESOLUTION # 2
(Series of 2011)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND THE BU "11'hRMILK METROPOLITAN
DISTRICT SETTING FORTH THE TERMS AND CONDITIONS REGARDING
THE BULK WATER SERVICE AGREEMENT AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and the Buttermilk Metropolitan District, a
copy of which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and the Buttermilk Metropolitan District
regarding the Bulk Water Service Agreement, a copy of which is annexed hereto
and incorporated herein, and does hereby authorize the City Manager of the City
of Aspen to execute said contract on behalf of the City of Aspen.
Dated: 40. Ls.. 1/ £€
-20//
Michael Michael C. Ire d, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held January 10, 2011.
i
; / /
Kat IS. Koch, City Clerk
RECEPTION #: 577792, 02/22/2011 at
01:03:39 PM,
1 OF 47, R $241.00 Doc Code
RESOLUTION
Janice K. Vos Caudill, Pitkin County, CO
City of Aspen 01 -10 -11
BULK SALE WATER SERVICE AGREEMENT
This Bulk Sale Water Service Agreement (the "Agreement ") is made this0 day
of - 3 - (n v, , 2011 by and between the City of Aspen, Colorado, a municipal corporation
and home rule city ( "Aspen" or the "City"), and the Buttermilk Metropolitan District, a
Colorado special district and political subdivision of the State of Colorado organized and
operating pursuant to C.R.S. 32 -1 -101 et seq. (the "District ").
Explanatory Statement
The District is a Colorado special district, organized and operated to provide
certain services to customers within its boundaries. The District provides treated water
service for domestic and limited irrigation purposes to 77 residential properties within its
boundaries and two extraterritorial customers, the Airport Operations Center and the
"Stapleton Property Lot East" both of which are located outside its boundaries (the "two
extraterritorial properties ") but within its service area. A legal description of the lands
within the District boundaries and the two extraterritorial properties is attached as Exhibit
A, and a map showing the District's boundaries and the two extraterritorial properties is
attached as Exhibit C. The boundaries of the District and location of its water customers
are outside of Aspen's corporate limits. Currently, the District provides water to its
customers from wells, pursuant to water rights and a decreed augmentation plan
described in Case Nos. 01CW028 and 00CW305, decreed by the Water Court, Water
Division No. 5. As described herein, some of the District's customers also use water
from private water rights and exempt wells for outdoor lawn and garden irrigation. The
District maintains storage for approximately 400,000 gallons of treated water.
Pitkin County (the "County "), a political subdivision of the State of Colorado,
owns and operates the Aspen - Pitkin County Airport (the "Airport") at which the County
is in the process of extending its Runway 15/33 and Taxiway A, a project that the District
believes will eliminate or materially impair the District's use of its wells and decreed well
field. The County and the District have requested that Aspen deliver and sell the District
treated water on a bulk sale basis for sale and delivery by the District to its customers.
Through its water utility, Aspen owns and operates water rights and water collection,
treatment and distribution facilities for its in -City and extraterritorial customers. Aspen
does not typically provide water service on a master - meter/bulk sale basis. However, in
order to facilitate approvals of the Airport runway extension project, Aspen is willing to
enter into this Agreement to sell the District a defined quantity of treated water each year,
subject to certain terms and conditions, as set forth in this Agreement.
Section 25.12.020(b) of Aspen's Municipal Code (the "Code ") requires that the
provision of water service outside of the Aspen corporate limits shall be undertaken only
pursuant to an agreement with the City, in accordance with the Aspen water main
extension policy and consistent with the Aspen Area Community Plan (the "Community
Plan") and City Council resolutions relating to water policy and existing operating
procedures. That Code provision also mandates that Aspen shall not be obligated to
City of Aspen 01 -10 -11
extend its water service outside the City's corporate limits and may do so only upon a
determination that no conflict exists between the best interests of the City (as expressed
in the Community Plan, and as otherwise determined by the Aspen City Council) and the
prospective water use. The City may impose such contractual, water rights dedication
and bond requirements as it deems necessary to protect the City's interests.
The City and the District have negotiated initial rates and terms which, after
review and analysis, the City has determined to be sufficient to recover its costs and
utility investment charges associated with the extraterritorial service requested by the
District, make an appropriate profit, comply with the mandates of the Code and the City's
water policies, and assure that the District remains solely responsible for infrastructure
that it owns and operates within the District Water Distribution System, as well as any
additional infrastructure that will be owned by the District, as provided in this
Agreement, all of which infrastructure is necessary for delivery of Aspen's water to the
District's customers, in compliance with rules applicable to Aspen's own water service
customers.
The City and the District currently are parties to certain water court proceedings
in which they have taken adverse positions. Because the City does not wish to provide
water to the District at the same time as it continues to litigate with the District over
water rights and related issues, as part of its consideration for this Agreement, the District
will withdraw its opposition to Aspen's pending water court cases, including Case Nos.
05CW299, 05CW300, and 06CW54, and, for the Term of this Agreement, the District
will not oppose future actions filed by Aspen with respect to water rights and related
issues.
NOW, THEREFORE, in consideration of the Explanatory Statement, which is
incorporated in this Agreement, and of the parties' mutual undertakings and covenants,
the parties agree as follows:
1. Definitions.
1.1 "Code" shall mean the Aspen Municipal Code.
1.2 "Claims" shall have the meaning set forth in Section 12.
1.3 "Community Plan" shall mean the Aspen Area Community Plan,
as now existing and as subsequently amended or replaced.
1.4 "Contract Commitment" shall mean the amount of treated water
that Aspen is required to famish to the District, set forth in Section 2.1 and Exhibit B,
pursuant to the provisions and subject to the limitations of this Agreement.
1.5 "Delivery Point" shall have the meaning set forth in Section 3.1.
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City of Aspen 01 -10 -11
1.6 "District Service Area" for purposes of this Agreement shall mean
the legal boundaries of the District as described in Exhibit A (and set forth in its service plan
recorded with the Pitkin County Recorder on September 28, 2000 at reception number
447434), together with the two extraterritorial properties as defined herein. The District
Service Area may be amended only upon agreement of the parties. Additionally, the
District Service Area will include the two extraterritorial properties, provided, however, that
the two extraterritorial properties will continue to receive water service from the District
only for the current uses, or other uses consistent with the current zoning for such properties
as of the date of this Agreement. If either of the two extraterritorial properties is rezoned or
subdivided, the District and the City shall jointly review whether such new land use requests
will be served by the water furnished hereunder, as provided in Section 3.4.1, below.
1.7 "Furnish ", when used with regard to the Contract Commitment,
shall mean to acquire, divert, treat to required standard, deliver and furnish water, and
includes all of the intermediate steps necessary to provide water at the agreed -upon delivery
point. "Furnish" does not include any obligation on the City to construct any storage,
pumping, transmission, distribution or any other facilities within the District Service Area or
otherwise required for the District to provide water to its customers.
1.8 "Event of Impossibility" shall mean any circumstance, not
voluntarily created or caused by the City, nor reasonably foreseeable and preventable by the
City, that prevents the City from Furnishing some or all of the Contract Commitment,
including drought, failure of infrastructure, loss of water rights, inadequate runoff, poor
quality, judicial determinations and orders, inability of the City to fulfill the requirements of
its own in -City water customers, and inability to meet its goals and policies regarding
protection of instream flows subject to the terms of Section 3.9. An Event of Impossibility
shall include the determination by the City in its sole discretion that Furnishing some or all
of the Purchased Water provided for in the Contract Commitment will imperil the health,
safety or welfare of the City's water customers or will be inconsistent with the City's goals
and policies regarding protection of instream flows.
1.9 "Master Meter" shall have the meaning set forth in Section 3.1.
1.10 "Purchased Water" shall have the meaning set forth in Section 2.1.
1.11 "OWTS" shall have the meaning set forth in Section 3.7.
1.12 "Service Commencement Date" shall have the meaning set forth in
Section 2.1.
1.13 "Standards" shall mean all engineering, water quality, facility and
all other standards and specifications applicable to or governing the provision of water by
Aspen to its customers, including those promulgated by the City or contained in
applicable federal and state laws, rules and regulations.
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City of Aspen 01 -10 -11
1.14 "Term" shall mean the period of time from the Service
Commencement Date until this Agreement is terminated pursuant to Section 8.
1.15 "Two extraterritorial properties" shall mean the property known as
the Stapleton Property Lot East (Pitkin County Assessor Parcel No 264334300004) and
the Airport Operations Center located at 1001 Owl Creek Road, Snowmass Village, CO
with their currently- existing water uses and any uses that may be added pursuant to
development approvals for said properties. If either of the two extraterritorial properties
is redeveloped, subdivided, or otherwise altered which increases the water demand for
that property, the District and the City shall jointly review for approval.
1.16 "Water Court Actions" shall mean all actions pending in any
court with respect to water rights owned or controlled by Aspen, or affecting Aspen's
water rights or water supplies as of the Service Commencement Date, in which Aspen
and the District are adverse parties and all future such actions initiated by Aspen or in
which Aspen is a party.
1.17 "Water Management Plan" shall mean the comprehensive water
management plan for the City as initially prepared and adopted in 1980, as amended and
updated.
1.18 "Water Distribution System" shall refer to the water mains,
pipelines, pump stations, tanks, and related appurtenances and infrastructure for distribution
of treated water by the District to its customers, beginning at the RP Valve as shown on
Exhibit D, located in the area shown on the map attached as Exhibit C.
1.19 "Water Rates" shall have the meaning set forth in Section 2.3.
1.20 "Water Supply" shall include, but not be limited to, the City's
existing water supplies, future water supply projects and existing and after - acquired water
rights.
2. Sale and Purchase of Bulk Water; Tap Fees, System Development Fees,
Water Rights Dedication.
2.1 Beginning on the Service Commencement Date, the City shall sell
and the District shall purchase, pursuant to the terms of this Agreement, the following
amounts of treated water (the "Contract Commitment ") per calendar year, at the following
rates of delivery set forth below.
Average annual delivery rate: 67 gallons per minute (gpm)
Maximum annual delivery: 35.3 million gallons (108 acre -feet)
Peak day demand: 155 gpm
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,,.. The City agrees that if required by the District, it will furnish the minimum day demand of
the District subject to the average annual delivery rate requirement. The water furnished
pursuant to the Contract Commitment per calendar year is herein referred to as the
"Purchased Water." For purposes of this Agreement, the Service Commencement Date
shall mean that date upon all the following conditions have occurred:
a. The City has been paid in full for all tap fees and well development
fees set forth in Section 2.8 and the payment in lieu of water rights as set forth in Exhibit B;
b. The District has fulfilled its obligations under Section 2.-9;
c. The District shall have withdrawn and dismissed all statements of
opposition to the City's pending water court applications in the Water Court Actions, as
specified in Section 10;
d. The City has completed, and has been reimbursed for all costs of
the construction and other measures necessary to connect its water delivery system to the
District's Water Distribution System and, prior to commencement of service under this
Agreement, the City has conducted all tests it deems necessary to assure that it can
Furnish Purchased Water under this Agreement;
e. The District has conducted a leak survey of its Water Distribution
System, acceptable to the City, and provided written certification that no significant leaks
are present;
£ The District has provided an assignment and deeds acceptable to
the Aspen City Attorney, effective upon the Service Commencement Date, of its water
rights as set forth in Section 2.9 and the attachment to Exhibit B; and
g. The District has certified to the City that it has discontinued the use
of all wells owned by it or in which it possesses an interest or right to use ( "District
Wells "), and has plugged and abandoned the District Wells as required by the Colorado
State Engineer, and disconnected any exempt individual wells in the District Service
Area from the Water Distribution System as set forth in Section 4.1; provided, however,
that the City shall assure that its Furnishing of the Purchased Water occurs
simultaneously with the District's termination of its own water sources and conveyance
of certain water rights as herein provided so that no material interruption occurs in the
District's ability to provide treated water to its customers.
2.2 Except as set forth in Sections 2.5.1 and 2.5.2, the City shall not be
required to Furnish Purchased Water in any amount in excess of the Contract Commitment.
In the event that the District requests Purchased Water in excess of the Contract
Commitment, the City may, but has no obligation to, Furnish such water on such terms and
at such rates as it determines in its sole discretion.
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2.3 The District shall pay for the Purchased Water at the rates (the
"Water Rates ") set forth in Exhibit B. At such times during the Term as the City shall
increase or decrease the rates it charges for water provided to its residential users, or change
the basis or methodology for calculation of such residential rates, any resulting rate
increases or decrease shall be applied to the District's Water Rates. The District's Water
Rates shall automatically increase or decrease by the same percentage increase or decrease
charged by the City to its in -City residential customers in Aspen Zone 1, and such new
Water Rates will be effective at the same time that any rate increase or change in rate
calculation is effective as to Aspen's in -City residential customers. The District shall receive
notice of proposed rate changes in the manner that public notice of rate changes and rate
reviews is provided for in the Code. Notwithstanding the provisions of this Section 2.3,
water rate adjustments made by the City for particular Billing Areas (as defined in the Code)
that do not include the District to reflect unique circumstances of that Billing Area will not
trigger a rate adjustment of the District's Water Rates.
2.4 If the City's records from the Master Meter reflect that the
Purchased Water Fumished to the District at the Delivery Point exceeds the average annual
delivery rate of 67 gpm, or exceeds peak day deliveries of 155 gpm, or exceeds the total
annual Contract Commitment of 108 acre -feet per calendar year, in any two calendar years
(which need not be successive) during the Term, the District immediately shall investigate,
determine and eliminate the cause(s) of such over - delivery as follows: within 30 days of
commencing such investigation, the District shall provide the City with a written description
of the investigation, resultant findings, and steps taken to eliminate the over - delivery, or, if
such investigation, findings and remedy for over - delivery have not been completed within
such 30 day - period, the District will provide a status report, and estimated date for
completion of such remedial measures, and expeditiously complete its investigation and
implementation of those measures. Upon completion, the District shall provide a final
report setting forth the method and findings of its investigation and steps taken to eliminate
over - delivery. The final report shall be provided to the City Utilities Department within 30
days of its completion.
2.5 Water furnished to the District for the following purposes shall not
be included in the above - described delivery obligation limits:
2.5.1 Following advance approval of and coordination with the
City, water Furnished for the purpose of annual maintenance, including main flushing and
fire hydrant testing; and
2.5.2 Water Furnished to the District in response to a water system
failure (other than failure due to lack of routine maintenance, repair and replacement) or
firefighting effort.
The District must submit in writing to the City within 30 days of an event described in
Section 2.5.1 or 2.5.2 a report documenting, to the City's reasonable satisfaction, the details
of the event including a calculation of the amount of water Furnished in response to the
event. If such report is not prepared or submitted to the City within said 30 -day period, or if
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City of Aspen 01 -10 -11
said report is not reasonably satisfactory to the City, the water Furnished in response to the
event will be included in the above - described delivery obligation limits.
Notwithstanding exclusion of any water from the delivery obligation limits of this section,
the District shall be charged, and shall pay for all such water Fumished, including any
additional charges as set forth in the following paragraph.
The District shall pay an additional charge for any calendar year in which water delivery at
the Master Meter exceeds by 5% or more the average annual delivery rate of 67 gpm, peak
day deliveries in excess of 155 gpm, or the maximum annual Contract Commitment of 108
acre -feet, calculated as follows: All water delivered in excess of the average annual delivery
rate, peak day delivery rate and/or the maximum annual delivery volume shall be charged at
two times the prevailing Water Rates based on the highest block rate then in effect.
2.6 If, subsequent to the circumstances and proceedings set forth in
Section 2.5, the City's records reflect delivery to the District at the Master Meter at average
annual rates in excess of 67 gpm, peak day deliveries in excess of 155 gpm, or delivery of
more than the Contract Commitment of 108 acre -feet per calendar year, during a third
calendar year, the District will be deemed to have breached this Agreement, and the parties
will employ the dispute resolution procedures set forth in Section 9.
2.7 Each month during the Term, the City shall transmit to the District an
invoice for the Purchased Water Furnished to the District and for other charges incurred by
the City and chargeable to the District pursuant to this Agreement during the prior month,
including additional charges as set forth in Section 2.5. The District shall pay each invoice
within thirty (30) days after the date of the invoice. The District shall submit in writing to
the City any billing dispute prior to the invoice due date. If the parties are unable to resolve
the dispute within 30 days of the District's notice of dispute, the dispute resolution process
described in Section 9 shall be employed to resolve the dispute. During this process, the
District shall keep all other payments current. The District may not offset payments for
Purchased Water Furnished against any other claimed breach by the City.
2.8 In addition to the Water Rates set forth in this Section 2, prior to the
start of construction and testing as described in Section 2.1(d), the City shall be paid in full
for all tap fees, well system development fees calculated on the basis of the District's
utilization of the City's water system capacity (including water rights and infrastructure),
and payments in lieu of water rights, all as shown on Exhibit B. The City will not be
required to Furnish any water to the Delivery Point until it has received payment of all tap
fees, system development fees, and payments in lieu of water rights as set forth on Exhibit
B.
2.9 As a condition of providing extraterritorial water service, the District
shall convey to the City those water rights described on the "Water Rights List" that is a part
of Exhibit B, attached hereto and incorporated herein by reference.
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City of Aspen 01 -10 -11
2.10 Any payment obligation of the District under this Agreement not
paid timely shall be subject to an interest charge of 12 % per annum on all overdue amounts.
3. Furnishing, Use, and Terms of Purchased Water.
3.1 The Purchased Water shall be Furnished to the District at the
delivery point set forth on Exhibit D (the "Delivery Point ") and shown on the map
attached as Exhibit C. Purchased Water Furnished by the City shall be measured by a
master water meter (the "Master Meter ") of a type and size determined by the City. The
City shall consult with the District about the type and size of meter required, but the City
shall have final authority to determine the appropriate type and size of the Master Meter.
The Delivery Point, Master Meter, facilities and other infrastructure and related locations
pertinent to the City's Furnishing and the District's receipt of Purchased Water are shown
on the design drawing attached Exhibit D. Prior to Furnishing any water pursuant to this
Agreement, the City shall be reimbursed for all costs of purchasing and installing the
Master Meter, including the costs of any required electrical connection or upgrades to the
City's existing electrical system in the area if needed to provide the required electrical
connection for the Master Meter. The Master Meter shall at all times remain the property
of the City and shall be maintained by the City at its cost.
The parties acknowledge that the District may install, at its own cost, its own meter at a
location on the District's Water Distribution System, beyond the Delivery Point.
However, the Master Meter shall be the only location at which Purchased Water
Furnished by the City is measured for purposes of this Agreement. The City may verify
the accuracy of the Master Meter at any time, either on its own initiative or at the
reasonable request of the District. The results of any test of the Master Meter shall be
made available to the District. If the District has requested the test of the Master Meter,
and the test results indicate that the accuracy of the Master Meter tests within 2% of the
results of the most recent independent test, the District shall bear the full cost of the test.
The City shall bear the cost of the test if the City has undertaken the test on its own
initiative, or if the District has requested the test, and the test results indicate that the
accuracy of the Master Meter is not within 2% of the results of the most recent
independent test. No adjustment will be made to any previous invoices unless the Mater
Meter is found to be in error by more than 5 %.
3.2 The Purchased Water shall comply with all State of Colorado and
federal drinking water standards, acts, regulations and mandates. Except as provided in
paragraph 2.1 above, the City makes no other promise or guarantee of quality or quantity of
Purchased Water, for any purpose, including fire suppression, or of pressure at the Master
Meter, and no such promise or guarantee may be implied from anything contained in this
Agreement. Purchased Water shall be provided to the Water Distribution System at the
Delivery Point in the amounts and at the rates set forth in Section 2.1 of this Agreement.
3.3 The District shall be solely responsible for the operation,
maintenance, upkeep and repair of the Water Distribution System. The District shall install,
inspect, and maintain such back flow and cross - connection prevention devices as the City
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City of Aspen 01 -10 -11
deems appropriate to ensure protection of the City water supplies. At all times during the
Term, all new infrastructure construction or replacement of all or any part of the Water
Distribution System shall comply with the Standards.
3.4 All Purchased Water shall be sold by the District and used by the
District's customers only for in -house residential uses in up 77 residential properties within
the District, as currently platted and zoned, and for in- building uses at the two extraterritorial
properties, including the Stapleton Property Lot East and the Airport Operations Center
(which includes administrative offices, training facilities, storage of snow removal and
airport equipment, storage of firefighting equipment, a fueling facility, and three employee
residential units) as defined herein and for total treated water irrigation within the District
Service Area of no more than 18.94 acres of individual lawns and gardens, common
landscaping, and open space. Water may also be used by the District for emergency fire and
safety uses. Purchased Water may be sold and used only within the District Service Area.
3.4.1 The parties acknowledge that the District Service Area
contains 77 platted residential properties, as well as the two extraterritorial properties
described in Section 1.6. The City shall provide treated water service pursuant to this
Agreement to existing District customers for the existing land uses described in this Section
3.4. In particular, the City shall not be obligated to provide additional water supplies in
excess of the delivery obligations set forth in Section 2.1 in order to serve any rezoning, re-
platting, lot -split or resubdivision within the District Service Area, including any such
rezoning, re- platting, lot -split or resubdivison of the two extraterritorial properties served by
the District. In the event any of the foregoing serviced properties are the subject of any
rezoning, re- platting, lot -split or resubdivision, the District shall require the owner to submit
a plan for water use and the District shall determine whether such water uses may be served
by the water furnished under the limitations described in Section 2.1. If the District
determines that such demands may be furnished within such limits, it shall request the City
serve those uses hereunder and the City's consent to such service shall not be unreasonably
withheld, so long as such request for service is consistent with the City's then-current Code,
rules, regulations, and policies regarding extraterritorial water service, including Resolution
No. 5, Series of 1993 (as amended).
3.4.2 Each District customer having a legally- permitted individual
exempt well may continue to use that well for outdoor irrigation (if and to the extent
authorized by the customer's well permit), subject to the provisions of this Agreement
regarding prevention of cross- connection, backflow or cross - contamination. In addition, the
parties recognize that the Owl Creek Ranch Homeowners Association and the East Owl
Creek Ranch Homeowners Association, and perhaps others served by the District, own and
control certain water rights which are decreed for irrigation and will continue to be used for
irrigation, so long as said water rights are legally available in priority for such irrigation.
Except for continued outdoor irrigation use of such individual exempt wells and the
irrigation rights described in the foregoing sentence, the District will not authorize or permit
any raw water irrigation within the District Service Area, or acquire, appropriate, develop or
change any water rights for such purpose without the City's prior written approval.
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City of Aspen 01 -10 -11
3.4.3 The District recognizes that the City has not reserved
capacity for any water supplies or uses in amounts other than those set forth in this
Agreement, and that the City makes no representation or agreement that it can or will amend
this Agreement in order to provide additional water supplies in amounts exceeding the
average annual delivery rate, peak day delivery rate, or maximum annual delivery rate
specified in this Agreement.
3.5 At all times during the Term, the District shall comply with
applicable provisions of the Code (including but not limited to the provisions of Code
Chapters 8.36, 8.40 and Chapter 25) and Water Management Plan and shall require water
conservation by its customers in the same manner as is required by the City from time to
time for its municipal customers in the City limits, including installation and use of water -
saving appliances, water conservation practices, and restriction or curtailment in times of
shortage. The District shall also require restriction or curtailment of outdoor irrigation by
individual exempt wells within the District in times of shortage in the same manner, and for
the same duration, as the City imposes curtailment or restrictions on outdoor irrigation upon
its municipal customers in the City limits.
3.6 All Purchased Water Furnished by the City under this Agreement is
furnished on a contractual basis only for the use of the District and its customers within the
District Service Area for the indoor residential domestic uses and irrigation of lawns and
gardens, and existing commercial use by the Airport Operations Center, as provided in
Section 3.4 above. Neither the District nor its customers shall have the right to make a
succession of uses of such water; and upon completion of the primary use, all dominion over
the Purchased Water shall revert completely to the City. Except as specifically provided in
this Agreement, all property rights to the Purchased Water are reserved in and to the City.
Subject to the provisions of Section 7, the District is not obligated to create any particular
volume, timing, or point of return of return flow after such use.
3.7 Subject to the provisions of Section 7 regarding the effect of a
judicial or administrative determination that the District's use of the City's water supplies is
improper because of the location of the return flows, the District shall assure that wastewater
from indoor water use within the District is and continues to be treated through onsite
wastewater treatment systems ( "OWTS ") and that all OWTS within the District shall
comply with all applicable governmental rules and regulations, including the County's
OWTS inspection and installation requirements. Nothing herein shall prevent the District
from, in the future, negotiating for the delivery and service of wastewater by the Aspen
Consolidated Sanitation District.
3.8 The parties to this Agreement recognize that the City's water supply
is dependent upon natural water resources that are variable in quantity of supply from year
to year. The City shall not be liable for failure to accurately anticipate availability of its
water supply in any given year or for an actual failure of the City's water supply due to
drought, inadequate runoff or other occurrences beyond the reasonable control of the City,
and the City shall be under no obligation to undertake any actions, including legal action, to
increase, augment or otherwise obtain additional water supply.
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3.9 Upon an Event of Impossibility, the City shall be relieved from its
obligation to Furnish the Contract Commitment, and the District shall have no claims, rights,
causes of action or similar rights against the City for a failure to Furnish the Contract
Commitment. Upon the occurrence of an Event of Impossibility caused by a shortage or
failure of water availability in the City, water use by District customers will be restricted or
curtailed in the manner determined by the City; provided, however, that any such restriction
or curtailment on residential use and residential lawn watering, and in- building uses at the
Airport Operations Center, including restrictions or curtailment imposed by the City in order
to fulfill its policy of protecting decreed instream flows, shall be applied uniformly to
residential users both inside and outside the City, it being the intent hereof that the District
users will be treated the same as in -City users.
3.10 The District shall not commingle or allow any Purchased Water to be
commingled with water from any other source, and the District's wells will not be used to
provide any part of the District's treated or untreated water supply.
3.11 During the Term, in obtaining and using Purchased Water and
otherwise fulfilling the requirements of this Agreement, the District shall be bound by and
shall comply with all City water resolutions, policies, rules and regulations, and with the
applicable Code provisions pertaining to use of treated and untreated water within the City
and with all rules, regulations, standards and interpretations promulgated thereunder
provided such legislative and administrative requirements do not frustrate or impair the right
of the District under this Agreement.
4. Disconnection, Plugging and Abandonment of District Wells; Assurance
Against Connection of Individual Exempt Wells, No Connection of District Wells to City
Water System and Cross - Contamination; and Limitation on Individual Wells.
4.1 Prior to the Service Commencement Date, the District shall
discontinue the use of all wells owned by it or in which it possesses an interest or right to
use, shall plug and abandon the District Wells as required by the Colorado State
Engineer, and disconnect all exempt individual wells in the District from the Water
Distribution System.
4.2 During the Term, the District shall
4.2.1 take all actions necessary to disconnect, plug and abandon
the District Wells and to assure there can be no connection of any District Wells or other
water supplies to the District's Water Distribution System, and take all actions necessary
to prevent cross- contamination with the Purchased Water;
4.2.2 assure that individual exempt wells are not used for indoor
purposes, and that cross - connections and back flow between any such individual exempt
wells and the District's Water Distribution System are scrupulously avoided;
11
City of Aspen 01 -10 -11
4.2.3 assure that individual exempt wells within the District
Service Area are not used for in -house domestic purposes;
4.2.4 conduct annual inspections to assure that individual exempt
wells remain disconnected from, and are not cross - connected to the Water Distribution
System and provide to the City, on or before September 15 of each year during the Term,
written certification of such assurance;
4.2.5 not permit construction of any new individual exempt well
within the District Service Area, except for parcels which have applied for or received
permits as of the date of this agreement;
4.2.6 implement and enforce rules and regulations for installation
and inspection of backflow prevention devices and cross - connection prevention; and
4.2.7 in the event that any cross - connection, backflow, or cross -
contamination occurs to the District's Water Distribution System from any exempt well
or other source within the District, the District shall immediately notify the City and shall
immediately, at the District's sole cost, commence any required disinfection of the
District's Water Distribution System, and shall remedy such cross - connection, backflow,
or cross - contamination. The District shall also be responsible for all cost of disinfecting
the City's water distribution system, should such disinfection be required as a result of
any cross - connection, backflow, or cross - contamination with the District's Water
Distribution System, and for all related costs, such as labor costs, penalties, or any other
indirect costs incurred by the City as a result of such cross - connection, backflow, or
cross - contamination with the District's Water Distribution System.
The District shall be liable for, and indemnify the City from and against all Claims
relating to or arising from a violation of this Section 4.
5. District Water Operations.
5.1 The District shall continue to be responsible for the construction,
operation, maintenance, repair and replacement of its Water Distribution System. The
District warrants and represents that it has authority to use, connect, disconnect, modify,
renew, extend, enlarge, replace, convey, abandon or otherwise dispose of the pipes and other
facilities, including fire hydrants, used for providing water service to users within the
District Service Area. All additions to the Water Distribution System installed or replaced
to serve exclusively within the District Service Area shall be the property of the District.
5.2 The District shall maintain its Water Distribution System and related
facilities in good repair at all times and shall make such replacements (in compliance with
the Standards) as may be necessary to keep the Water Distribution System and related
facilities in proper operating condition at all times.
12
City of Aspen 01 -10 -11
5.3 The District agrees that it will, at all times, operate the Water
Distribution System so as not to interfere with service to others dependent upon the City for
a supply of water.
5.4 The District shall pay or reimburse the City for any damage to or
increased operational costs of the City's facilities or water supplies related to any operation
of the District Water Distribution System, at any time during or after the Tenn, (including
but not limited to cost of any pressure relief valve station that the City may deem necessary),
or any damage to the City's facilities or water supplies resulting from cross- connection,
cross- contamination, or backflow from the District's Water Distribution System, or resulting
from the District's disconnection of its facilities from the Master Meter and the City's water
system upon termination of this Agreement. Any payments required by the District
pursuant to this section shall be made within 30 days of the invoice date. Any dispute
regarding such payments shall be resolved using the dispute resolution process described in
Section 9. During this process, the District shall keep all other payments current.
5.5 All future design, installation, replacement, operation, maintenance,
repair and replacement of the District's Water Distribution System shall comply with the
Standards, and shall be designed by a professional engineer registered in the State of
Colorado, who shall certify to the City that such infrastructure complies with the Standards.
The City shall be entitled to inspect the District's plans and installations at the City's
expense. Notwithstanding the foregoing, the City shall have no liability or responsibility
arising out of or in connection with any aspect of the design, installation, operation,
maintenance, repair or replacement of the District's Water Distribution System.
5.6 The District specifically acknowledges and agrees that,
notwithstanding the requirements of Sections 3.3 and 5.5, this Agreement gives the District,
and the District's water users, residents and customers, no right to receive water or water
service of any sort from the City other than the water service provided for in this
Agreement'. Should the District, its water users, residents, and customers at any time wish
to contract for direct retail extraterritorial water service from the City, the City's
extraterritorial water service applications and procedures must be complied with, the
required fees must be paid, the District's Water Distribution System and related
infrastructure, and individual water service lines, must meet all of the Standards, and the
City shall have no obligation to provide such extraterritorial water service unless and until
an Extraterritorial Water Service Agreement is approved by City Council ordinance.
5.7 So long as this Agreement remains in effect, the District shall not
expand the District Service Area or provide new extraterritorial water service without the
City's prior written approval. Nothing herein shall prevent the District from including within
its boundaries either of the two extraterritorial properties. The District shall not at any time
expand the District Service Area into any area within the City or any contract service area of
the City. The District shall not utilize or provide any untreated water service or supplies
Nothing herein shall be construed as altering the terms of the separate Water Service Agreement entered
into between certain residents of the Eagle Pines Subdivision and the City.
13
City ofAspen 01 -10 -11
within the District Service Area without the City's prior written approval, which may be
granted or withheld in the City's sole discretion.
6. Records. The District shall maintain and, upon request by the City, provide
the City with access to, all records relating to the operations of its Water Distribution
System and otherwise relating to the use of the Purchased Water and to the transactions
contemplated by this Agreement.
7. Determinations Regarding Use of City Water Rights, Improper Return Flow
or Exempt Well Use. The parties understand and believe that this Agreement is lawful and
that the City's water rights can properly be used to supply water to the District hereunder.
However, upon any judicial or administrative determination that the use by the District of
the Purchased Water is not within the scope of the City's water rights, or that the use by the
District of the Purchased Water is improper because of the location of return flows from
OWTS within the District Service Area, the District shall either elect and take all actions
and expend all funds necessary to eliminate such unlawful use of City water rights, or such
improper location of return flows, including, if appropriate, connection to and inclusion
within Aspen Consolidated Sanitation District or the District shall terminate this Agreement.
Upon any judicial or administrative determination that the use of any one or more exempt
wells within the District's boundaries is unlawful, violates any well permit, or is otherwise
improper, the District shall, consistent with the extent of its authorized powers, require the
owner of the exempt well to immediately terminate use of the exempt well, and, if required
by such judicial or administrative authority, to abandon such exempt well in the manner
required by the Colorado State Engineer.
8. Termination. This Agreement shall only be terminated for the reasons set
forth below, and the Term of this Agreement shall continue until such termination.
8.1 Following one hundred eighty (180) days written termination notice
by the District;
8.2 Dissolution of the District pursuant to C.R.S. §32 -1 -701 et seq.;
8.3 A final order of a court of competent jurisdiction making any
material benefit or obligation under this Agreement illegal or depriving either party of any
material consideration under this Agreement, including an adverse determination regarding
use of the City's water rights or location of return flows as set forth in Section 7, and the
parties' failure, after good faith negotiations to amend this Agreement to cure any such
illegality or mitigate the damage of such order;
8.4 Mutual agreement of the parties; or
8.5 Termination following conclusion of the dispute resolution process
set forth in Section 9, if termination is a result of that process. In this event, the dispute
resolution process shall also determine the equitable distribution to each party of the tap
fees, well system development fees, and the payment in lieu of water rights as provided for
14
City of Aspen 01 -10 -11
in this Agreement ( "Fees Paid "). Such determination shall take into account all costs and
impacts incurred by the City in developing, reserving and allocating system capacity and
infrastructure construction as well as all costs to the District of developing, acquiring,
replacing and permitting an adequate replacement water source.
8.6 This agreement will terminate automatically if all required
approvals for extension of Airport Runway 15/33 are not obtained on or before three
years from the date of this Agreement. This Agreement will also terminate automatically,
if notwithstanding such approvals, the County does not receive the funding, or otherwise
fails or refuses to commence construction of phase one of the extension of Airport
Runway 15/33 and Taxiway A on or before four years from the date of this agreement.
8.7 Termination of this Agreement shall not terminate any obligation of
either party including and not limited to the parties' respective indemnification obligations
under Section 12, that has accrued at the time of termination or that expressly survives such
termination.
9. Dispute Resolution Process. The parties shall first attempt to resolve all
disputes arising in connection with or relating to this Agreement by mediation in the manner
set forth in this Section. The parties commit to resolving disputes in good faith, with a
minimum of expense and in the most expeditious manner. The party alleging a dispute shall
notify the other party of the nature of such dispute and shall submit the dispute to mediation
before a mediator approved by both parties. If the parties cannot agree upon a mediator,
mediation shall be conducted under the aegis of the American Arbitration Association,
which shall select a mediator. Mediation shall be commenced within 15 days of notice, and
completed within 45 days of notice of the dispute, unless otherwise agreed by the parties.
Use of the mediation process shall be a prerequisite to any litigation to enforce any provision
of this Agreement. If the dispute is not resolved by mediation, the parties shall have
available to them all remedies at law or equity, including injunctive relief and specific
performance to resolve and determine issues arising out of this Agreement, including an
equitable division of the Fees Paid in the manner set forth in Section 8.5.
10. Withdrawal of Opposition to Water Court Actions; Future Non -
Opposition. As soon as practicable upon execution of this Agreement, at its sole cost, the
District shall withdraw and dismiss all statements of opposition to the City's pending
water court applications filed by the District in the Water Court Actions, and shall not
thereafter seek to participate in such cases. Each party shall be responsible for its own
costs and fees in connection with such withdrawal. The District's obligations under the
preceding sentence will survive termination of this Agreement. During the Term, the
District shall not oppose, directly or indirectly, any action filed or position taken by
Aspen in any Water Court Action or administrative proceeding regarding the City's water
rights or supplies. A breach of this Section 10 shall constitute a material breach by the
District subject to dispute resolution and termination under Section 8.
15
City of Aspen 01 -10 -11
11. No Conversion to Public Utility Status. Nothing in this Agreement is
intended or shall act to constitute Aspen as a regulated public utility or any similar entity
compelled to provide water or any other service to the District or any other person or entity.
The District shall not, directly or indirectly, petition or encourage the Colorado Public
Utilities Commission to acquire jurisdiction over any water rate set by Aspen. In the event
that Aspen is determined to be a regulated public utility by virtue of the terms of this
Agreement, without any notice or election, this Agreement shall immediately terminate.
12. Indemnification. To the extent permitted by law, each party shall indemnify
and hold harmless the other party from and against all claims, losses, lawsuits, obligations,
costs (including court costs and reasonable attorney fees) arising from the transactions
required or contemplated by this Agreement (collectively, "Claims ") of third parties. The
party seeking indemnification (the "Indemnitee ") under this Section 12 shall promptly notify
the other party (the " Indemnitor") of any Claim and offer the Indemnitor, at its sole cost,
control over the response to and litigation and settlement of the Claim. Notwithstanding the
provisions of this Section 12, no party shall be entitled to indemnification for any Claim that
is the result of such party's own negligence, intentional tort or breach of this Agreement.
Nothing herein shall be construed to create any rights in third parties, or to abrogate or
diminish any protections and limitations afforded to any party by the Colorado
Governmental Immunity Act, C.R.S. ' 24 -10 -101 et seq. as amended, or other law.
13. Assignment of Agreement. This Agreement may not be assigned by any
party without the other party's prior written consent. Any attempted assignment in
violation of this section shall be void.
14. Notices. All communications required or permitted to be given, served,
or delivered by or to either party or any intended recipient under this Agreement shall be
in writing and shall be either delivered by hand, sent by a nationally recognized overnight
courier service, or prepaid certified or registered United States mail (airmail in the case of
all international communications), return receipt requested, to the party or intended
recipient at its address stated below, or sent by facsimile machine to the party or intended
recipient at its facsimile number stated below or to such other address or facsimile
number as either party may from time to time have notified the other party as being its
address or facsimile number for purposes of this Agreement. Such communications shall
be deemed to have been given, served, or delivered:
(i) if delivered by hand, upon delivery;
(ii) if delivered by overnight courier, on the next business day
following the date of delivery to the courier;
(iii) if sent by mail, four days after the date of mailing; or
(iv) if sent by facsimile machine, upon successful transmission.
16
City of Aspen 01 -10 -11
The addresses and facsimile numbers of the parties are as follows:
To City: Utilities Director, City of Aspen
130 South Galena Street
Aspen, CO 81611
Fax No. 970 - 920 -5117:
With a copy to: City Attorney, City of Aspen
130 South Galena Street
Aspen, CO 81611
Fax No. 970 - 920 -5119
To District: Buttermilk Metropolitan District
c/o Gary L. Beach
711 East Valley Road, Suite 103
Basalt, CO 81621
Fax No. 970 - 273 -3105
With a copy to: Matthew Dalton, Grimshaw & Harring, P.C.
1700 Lincoln Street, Suite 3800
Denver, CO 80203
Fax No. 303-839-3838
15. Governing Law; Venue. This Agreement shall be construed under and in
accordance with the laws of the State of Colorado. Venue for any litigation pursuant to
this Agreement shall be Pitkin County, Colorado.
16. Parties Bound. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective legal representatives,
successors and assigns.
17. Severability; Legal Construction. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision of the Agreement, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had never been contained in the
Agreement. Each party acknowledges that it and its attorneys have reviewed this
Agreement and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
18. Prior Agreements Superseded. This Agreement constitutes the sole and
only agreement of the parties to the Agreement and supersedes any prior understandings
or written or oral agreements between the parties concerning the matters set forth in this
17
City of Aspen 01 -10 -11
Agreement. No express or implied covenant not specifically set forth shall be deemed to be
a part of this Agreement. The parties expressly aver that no representations other than those
`,. specifically set forth in this Agreement have been relied upon by either party to induce it to
enter into this Agreement.
19. Counterparts. Multiple copies of this Agreement may be executed by the
parties hereto. Each such executed copy shall have the full force and effect of an original
executed instrument. This Agreement may be executed in any number of counterparts,
all of which when taken together shall constitute the entire agreement of the parties.
20. Attorney Fees and Costs. The Parties agree and acknowledge that this
Agreement may be enforced in law or in equity, by decrees of specific performance or
damages, or such other legal and equitable relief as may be available. The prevailing
party in any litigation arising under this Agreement shall be entitled to reasonable
attomey's fees and costs.
21. No Third - Party Beneficiaries. The agreements contained herein are solely
for the benefit of the parties hereto and no other person or entity shall be a third party
beneficiary of this Agreement.
22. Further Assurances. The parties will each reasonably cooperate with each
other, at no cost or liability to the cooperating party, in the execution of any additional
documentation and taking of actions reasonably necessary to carry out the terms of this
Agreement.
23. Waiver. No exercise or waiver, in whole or in part, of any right or remedy
provided for in this Agreement will operate as a waiver of any other right or remedy,
except as otherwise provide herein. No delay on the part of any party in the exercise of
any right or remedy will operate as a waiver thereof.
24. Effective Upon Approval of Ordinance or Resolution and Other Actions.
This Agreement shall be effective and binding upon the City only upon completion of all
actions required for such agreements by the Code, including passage of an ordinance or
resolution implementing the terms of the Agreement.
25. Authorization. Each party represents to the other that all actions required to
make this Agreement binding upon such party have been taken, and that the signatories are
duly authorized by the respective party to execute this Agreement. Each party shall take all
further actions necessary to make this Agreement the binding and enforceable undertaking
of such party.
26. Appropriation. All financial obligations of the parties under and pursuant to
this Agreement are subject to prior appropriations of monies expressly made by the parties
for the purposes of this Agreement; provided that failure to appropriate and timely pay the
monies required of either party shall be deemed a breach of this Agreement subject to
dispute resolution and termination of this Agreement.
27. No Personal Liability. No elected official, director, officer, agent or
employee of either party shall be charged personally or held contractually liable by or to the
18
City of Aspen 01 -10 -11
other party under any term or provision of this Agreement or because of any breach thereof
or because of its or their execution, approval or attempted execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date
first set forth above.
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and Home Rule City
B ��/// (,
Mayor
Attest: L A gri AL _a a /a_
ity Clerk /
APPROVED AS TO FORM:
neat
�spery ity Attorney
BUTTERMILK METROPOLITAN DISTRICT
B /AS(
1 L,
Pre- :the Board
Attest:
Distrie ta-
APPROVED AS TO FORM:
Attorney, Buttermilk Metropolitan District
19
City ofdspen 01 -10.11
other party under any tern or provision of this Agreement or because of any breach thereof
or because of its or their execution, approval or attempted execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date
first set forth above.
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and Home Rule City
By t c✓L _ t
:�
Attest: L��iri� � /. �
ity Clerk
APPROVED AS TO FORM:
sp ity A rney
BUTTERMILK METROPOLITAN DISTRICT
Z„ • :. r the Board
cz
Attest:
Distri iw*stG/
APPROVED AS TO FORM:
al i tty /C- t / deg -
Attorney, : Metropolitan District
19
City of Aspen 01 -10 -11
EXHIBIT A
Legal Description of District Boundaries
[ATTACHED]
EXHIBIT A
LEGAL DESCRIPTION
BUTTERMILK METROPOLITAN DISTRICT, PITKIN COUNTY, COLORADO
The Buttermilk Metropolitan District includes the West Buttermilk Subdivision, The West
Buttermilk Pfister Tracts, the Eagles Pines Subdivision, the East Owl Creek P.U.D., and the Owl
Creek Ranch P.U.D., all in Pitkin County Colorado.
The District is further described as residential and open space lands within the above named
- subdivisions and planned unit developments including those lands in;
the SW 1/4 of the SW% of Section 34; the SEY. and S% of the SW% of Section 33; the SK
of the SEY. of Section 32, all in Township 9 South, Range 85 West of the 6th P.M.; and
the NE1/4 and the E1/4 of the NW% of Section 5; the NY: and the SE' /. of Section 4; the
S W / of Section 3; the SW' /° of the NW Y. of Section 3; the SE44 of the SE'% of the NW 1/4
of Section 3; the SW/ of the SE% and portions of the SE'% of the SE'/. of the SE'/. of
Section 3; the EA of the NE'/. of Section 9, the NEY of the SEY. of Section 9; the NW1/4
of the S W % of Section 10, the W1/4 of the NW Y. of Section 10, the NE'% of the NW% of
Section 10 and the NW V. of the NE' /. of Section 10, all in Township 10 South, Range 85
West of the 6th P.M., Pitkin County, Colorado more fully described as follows:
Beginning at a point whence the witness comer to the Southeast corner of section 33
bears S05 °25'35 "E 1316.80 feet;
thence S84 °27'00 "E 124.49 feet;
thence East 1207.35 feet;
thence S89°59'57 "E 135.74 feet to the Northeast Corner of East Owl Creek P.U.D.;
thence South 1296.22 feet;
thence S89 °53'15 "W 171.29 feet;
thence South 1080.33 feet;
thence S85 °39'17 "W 588.25 feet;
thence NO3 °24'26 "W 296.40 feet;
thence N06 °42'40 "W 301.36 feet;
thence N00 °06'48 "W 288.15 feet;
thence N29 °46'08 "W 294.86 feet;
thence N64 °47'56 "W 77.03 feet;
thence S61°26'34 "W 332.15 feet;
thence S60 °32'49 "W 153.21 feet;
thence S00 °06'00 "E 1211.59 feet to the Northwest corner of West Buttermilk;
thence N89 °27'12 "E 218.42 feet;
thence N89 °33'27 "E 142.49 feet;
thence N89 °53'00 "E 348.83 feet;
thence N89° 16'49 "E 23.09 feet;
wm.
Exhibit A (con'd)
thence S89 °42'00 "E 244.60 feet;
thence N89 °3l'53 "E 346.25 feet to the Northeast corner of West Buttermilk;
thence S45 °03'47 "E 1862.79 feet;
thence S00°27'37 "W 685.36 feet;
thence S01 °44'08 "E 393.14 feet;
thence N88°29'27 "E 50.46 feet;
thence N89 °54'27 "E 244.00 feet;
thence N88 °1077 "E 298.14 feet;
thence S89 °4136 "E 108.64 feet;
thence 171.35 feet along the arc of a curve to the right having a radius of 2552.64 feet,
the chord of which curve bears S31 °23'23 "E 171.32 feet;
thence S29 °28'00 "E 124.12 feet;
thence 117.9 feet along the arc of a curve to the to the right having a radius of 534.99
feet , the chord of which bears S23 °10'49 "E 117.25';
thence S 16 °53:00 "E 40.30 feet;
thence 51.38 feet along the arc of a curve to the left having a radius of 386.66 feet,
the chord of which bears S20°4125 "E 51.34 feet;
thence 164.46 feet along the arc of a curve to the left having a radius of 437.54 feet,
thence S48 °38'00 "E 78.81 feet;
thence S48 °33'28 "E 469.95 feet;
thence 210.37 feet along the arc of a curve to the left having a radius of 147.65 feet,
the chord of which bears S89 °29'00 "E 193.02 feet;
thence N49 °44'00"E 888.16 feet;
thence 60.40 feet along the are of a curve to the left having a radius of 5780.00 feet,
the chord of which bears S36 °27'49 "E 60.40 feet;
thence S49 °43'l2 "W 885.20 feet;
thence S40 °3679 "W 116.92 feet;
thence S44 °31'12 "W 904.53 feet
thence S20 °17'12 "W 178.04 feet;
thence S00°5577 "W 161.51 feet to a point on the east line of Eagle Pines Subdivision;
thence S49 °50'05 "W 246.52 feet;
thence S09 °44'01 "E 337.04 feet;
thence S38 °28'56 "W 63.53 feet;
thence S60°5820 "E 0.12 feet;
thence 154.31' along the arc of a curve to the left having a radius of 89.38 feet, the chord
of which bears SI 1 °30'52 "E 135.84 feet;
thence S37 °56'37 "W 63.17 feet;
thence 99.65 feet along the arc of a curve to the right having a radius of 1402.50 feet, the
chord of which bean S35 °56'29 "W 99.63 feet;
thence S33° 5271"W 88.61 feet;
thence 80.13 feet along the are of a curve to the right having a radius of 482.40 feet, the
chord of which bears S28 °30'51 "W 80.01 feet;
thence S23 °09'40 "E 225.43 feet;
2
Exhibit A (con'd)
thence 103.35 feet along the arc of a curve to the left having a radius of 161.72 feet, the
chord of which bears S41°27'52 "W 101.60 feet
•
thence N30 °13'13 "W 60.00 feet;
thence S68 °27'47 "W 565.78 feet;
thence S44 °29'35 "W 230.52 feet;
thence S31 °19'43 "W 226.33 feet;
thence North 168.35 feet;
thence S89 °34'36 "W 975.86 feet;
thence S00°31'S l "W 683.77 feet;
thence S00 °26' 17 "W 1322.22 feet to the Southeast Corner of West Buttermilk Fister
Tracts;
thence S89 °40'41 "W 1327.82 feet;
thence S00 °04'45 "W 85.04 feet;
thence S89 °15'48 "W 1339.23 feet to the Southwest Corner of West Buttermilk Fister
Tracts;
thence N00 °11'10 "E 1365.48 feet;
thence N00 °11'51 "E 2775.54 feet;
thence S88 °51'42 "W 1261.02 feet;
thence S88 °53'12 "W 54.76 feet to the Southwest Corner of East Owl Creek P.U.D.;
thence N09 °02'26 "E 118.80 feet;
thence N11 °36'32 "W 476.78 feet;
thence N36° 19'47 "W 165.88 feet;
thence N56°10'10"E 123.78 feet;
thence N11 °13'24 "E 106.34 feet;
thence N31 °19'44 "E 217.56 feet;
thence N09 °16'08 "E 96.27 feet;
thence N01 °00'33 "W 457.02 feet;
thence N08° 14'01 "W 137.95 feet;
thence N00 °57'16 "E 131.95 feet;
thence N06 °28'24 "E 385.91 feet;
thence N13 °34'30 "E 452.32 feet;
thence 209.04 feet along the arc of a curve to the left having a radius of 247.91 feet;
thence N 89 °56'32 "W 5636.00 feet;
thence 267.03 feet along the are of a curve to the right having a radius of 224.98 feet;
thence S22 °03'14 "W 164.02 feet;
thence 282.24 feet along the arc of a curve to the left having a radius of 143.96 feet;
thence N45 °37'01 "W 41.94 feet;
thence 405.17 feet along the arc of a curve to the right having a radius of 355.56 feet;
thence S69 °05'35 "W 29.09 feet;
thence 220.91 feet along the are of a curve to the left having a radius of 193.27 feet;
thence N45 °25'00" W 25.61 feet to the Southwest corner of Owl Creek Ranch;
thence North 1670.37 feet;
thence East 219.63 feet;
3
Exhibit A (con' d)
thence N00 °03'41 "E 1043.54 feet;
thence N89 °29'19 "E 1322.59 feet;
thence N00 °49 "W 1329.74 feet;
thence N89 °38'12 "E 2450.86 feet;
thence North 396.87 feet;
thence East 2725.80 feet;
thence North 1320.00 feet;
thence S84 °27'00 "E 2819.98 feet;
thence S00 °15'05 "E 1326.20 feet to the point of beginning.
Together with and including a perpetual non - exclusive right to the Buttermilk West Road
Excluding the following:
The Owl Creek Road Construction License as shown on Book 19 Page 45 Pitkin County
Records;
A tract of land located in Section 4 and Section 5 in Township 10 South, Range 85 West
of the 6th P.M., more particularly described as follows:
Beginning at a point from which the Northwest corner of said Section 4 bears
N04 °33'50 "W 1926.52 feet; thence S00°03'35 "W 596.74 feet; thence N89 °31'49 "W
385.96 feet; thence S89 °58'36 "W 344.71 feet; thence N00 °03'35 "E 600.86 feet
thence S89 °26'25 "E 730.68 feet to the point of beginning;
A tract of land located in Section 9, Township 9 South, Range 85 West of the 6th P.M.,
more fully described as follows:
Beginning at a point whence the witness corner to the Southwest corner of said
section 34 bears S55 °32'11 "W 1483.25 feet; thence West 164.46 feet; thence
N00° 18'00 "W 11.17 feet; thence N09 °29'00 "E 19.68 feet; thence N39 °33'00 "E
19.77 feet; thence N14 °03'00 "E 42.30 feet; N36 °29'00 "E 18.50 feet; thence
N17 °59'00 "W 29.47 feet; thence N13 °21'00 "W 22.09 feet; thence East 142.18 feet;
thence S00 °13'00 "W 151.25 feet to the point of beginning;
A tract of land located in Section 34, Township 9 South, Range 85 West of the 6th P.M.,
more fully described as follows:
Beginning at a point whence the witness corner to the Southwest corner of said
section 34 bears S62 °16'00 "W 559.08 feet; thence S32 °32'00 "E 151.35 feet; thence
N50 °44'00 "E 74.85 feet; thence N50 °41'00 "E 93.66 feet; thence N50 °38'00 "E
100.86 feet; thence N35 °46'00 "E 128.82 feet; thence N17 °34'00 "W 298.98 feet
thence S27 °17'00 "W 246.47 feet; thence S30 °20'00 "W 71.86 feet; thence
4
•
E(RIBIT A (core d)
S44 °05'00 "W 192.53 feet; thence S32 °32'00 "E 15.70 feet to the point of beginning;
A tract of land located in Section 4, Township 10 South, Range 85 West of the 6th P.M.
more fully described as:
Beginning at a point whence the Southeast comer of said Section 4 bears
S49 °20'00 "E 1293.1$ feet; thence N09 °05'00 "E 600.00 feet thence N80 °55'00 "W
363.00 feet; thence S09 °05'00 "W 600.00 feet; thence S80°55'00"E 363.00 feet to
the point of beginning.
5
City of Aspen 01 -10 -11
EXHIBIT B
Water Rates, Tap Fees, Well System Development Fees, Water Rights Dedication
and Payment
Water Rates
The initial water rates to be paid by the District for water deliveries pursuant to the
Agreement are calculated as set forth on the table shown below. These rates are subject
to increase as provided in the Agreement.
Monthly Block Rates Charge (Per thousand gallons)
First 3,000 thousand gallons $2.50
Over 3,000 thousand gallons $5.89
In addition, the District shall pay an additional charge for any calendar year in which water
delivery at the Master Meter exceeds by 5% or more the average annual delivery rate of 67
gpm, peak day deliveries in excess of 155 gpm, or the maximum annual Contract
Commitment of 108 acre -feet, calculated as follows: All water delivered in excess of the
average annual delivery rate, peak day delivery rate and/or the maximum annual delivery
volume shall be charged at two times the prevailing Water Rates (based on the highest block
rate then in effect.)
Tap Fees (Utility Investment Charges)
Tap fees (utility investment charges) to be paid prior to the commencement of water
service under this agreement are $1,701,859.00, and were calculated and documented in
the utility investment charge calculations in the report of Red Oak Consultants dated
September 8, 2010.
Well System Development Fees
The City calculated that in order to comply with Resolution 94 -5, it would be required to
allocate the cost of development of its well system among 1000 ECUs of new
extraterritorial development that would not otherwise have an adequate water supply
from the City's then - existing water rights and supplies. The City has imposed a well
system development charge of $400.00 per ECU on new extraterritorial customers.
The Bulk Water Service Agreement does not allocate water on the basis of ECUs.
Therefore, the well system development charge to be paid prior to the commencement of
water service were calculated as follows:
Average annual water use for 1,000 ECUs that initially generated the need for Well
System Development Fees equals 0.24 gpm/ECU or an average rate of 240 gpm for 1,000
ECUs. The District's average rate is 67 gpm, or 0.28% of the average rate for 1,000
ECUs.
City of Aspen 01 -10 -11
EXHIBIT 13 (con'd)
The District's well system development charge is computed as 28% of $492,493 (current
replacement cost of the well system) or $137,898.
Water Rights Dedication or Payment in Lieu Thereof
The City has calculated its charge for water rights at a value of $2000 per acre -foot of
water used each year. At this rate, the water rights payment for the District equals
$216,000.
The District will convey to the City the water rights listed on the attached listing ( "Water
Rights List ") and the City, upon the District's demonstration title to the water rights
satisfactory to the City, will offset against the $216,000 the sum of $70,000 for the water
rights listed on said attached listing.
_ ATTACHMENT TO EXHIBIT `B"
The Buttermilk Metropolitan District will convey, assign and transfer all of its interest in
and to the following water resources:
A. 0.148 c.f.s. of 3.0 c.f.s., absolute, decreed to the Willow Creek Ditch,
Priority No. 129, in CA132, District Court, Garfield County on May 11,
1889, with an appropriation date of July 1, 1885;
B. 0.258 c.f.s. of 3.0 c.f.s., absolute, decreed to the Willow Creek Ditch,
Priority No. 174, in CA132, District Court, Garfield County on May 11,
1889, with an appropriation date of May 1, 1887; and
C. 2.58 c.f.s. of 30.0 c.f.s., absolute, decreed to the Willow Creek Ditch,
Priority No. 209, decreed conditional in CA491, District Court, Garfield
County on June 23, 1892 and absolute in Case No. W -122, District Court,
Water Division No. 5 on June 22, 1971, with an appropriation date of
April 15, 1891;
D. 4.65 c.f.s. of 51.56 cis., absolute, decreed to the Herrick Ditch, Priority
No. 683 in Case No. CA4613, District Court, Garfield County on June 20,
1958, with an appropriation date of August 1, 1951;
E. 0.3 c.f.s. of 6.0 c.f.s., absolute, decreed to the Stapleton Brothers Ditch,
Priority No. 777, in CA5884, District Court, Garfield County on
November 5, 1971, with an appropriation date of September 22, 1960;
F. Basalt Water Conservancy District Water Allotment Contract No. 409;
G. The BMD Well Field No. 1 as decreed in Case No. 01CW028, Water
Division No. 5, Colorado; and
H. All benefits and burdens of every nature or kind decreed in that certain
Plan for Augmentation and Change of Water Right decreed in Case No.
00CW305, Water Division No. 5, Colorado.
City of Aspen 01 -10 -11
EXHIBIT C
Map of District Boundaries, Water Distribution System, Delivery Point
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City of Aspen 01 -10 -11
EXHIBIT D
Design Drawings Showing Master Meter and Point of Delivery
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WATER SERVICES AGREEMENT
This Water Services Agreement ( "Agreement ") is made and entered into this 14 day of
January, 2011, by and between Pitkin County ( "County "), a political subdivision of the State of
Colorado, and the Buttermilk Metropolitan District ( "District "), a metropolitan district and
political subdivision of the State of Colorado organized and operating pursuant to C.R.S.
§ 32 -1 -01, et seg.
RECITALS
A. The County and the District are specifically empowered to enter into
intergovernmental agreements, such as this Agreement, pursuant to Article XIV, Section 18, of
the Colorado Constitution and the statutory provisions of C.R.S. §§ 29 -1 -201 through 206.
B. The District submitted, and the County approved, the Buttermilk Metropolitan
District Service Plan ( "Service Plan"), which sets forth the plan to serve the needs of existing
developed and undeveloped lands within the District's boundaries and its service area, both of
which are located in Pitldn County, Colorado. The Service Plan provides, among other things,
for the provision of water service by the District to the Aspen - Pitkin County Airport Property
( "Airport Property "), subject to certain terms and conditions as set forth in Resolution
No. 188 -2000, adopted by the County on September 27, 2000 ( "Resolution ") by which
Resolution the County approved the Service Plan. The Service Plan and the Resolution are both
incorporated into this Agreement as if fully set forth herein. The District's service area
encompasses those properties located within the District's boundaries, as well as other lands,
including the Airport Property.
C. On July 30, 2001 the County and the District entered into an Intergovernmental
Agreement regarding the District's intent to construct a new community water supply system
including potable water wells, located on the Airport .Property, subject to the County and the
District working out specific terms and conditions that would apply to such construction
( "2001 IGA "). The 2001 IGA also contemplated that the District would provide water service to
certain County facilities to be located on the Airport Property.
D. The County and the District are also parties to that certain Water Sharing
Agreement executed on April 21, 2003 (the "2003 IGA "), and approved by Pitkin County
Resolution No. 030- 2003, by which the District was permitted to construct and operate well
system facilities and production wells (the "Well System Facilities ") on the Airport Property to
supply water to County facilities to be constructed on the Airport Property and to other District
customers. Pursuant to the Water Sharing Agreement, the District constructed, and is operating,
two water production wells on the Airport Property.
E. The County has received unconditional approval from the Federal Aviation
Administration ( "FAA ") to improve the Airport airfield, including by extending Runway 15/33
and Taxiway "A".
F. The Environmental Assessment for the airfield improvements, conducted
pursuant to the National Environmental Policy Act ( "NEPA ") evaluating the potential
environmental consequences of the airfield project and its alternatives, identified potentially
negative effects on the Well System Facilities. The FAA, in approving the airfield
improvements, required the County to mitigate the negative potential effects of the project on the
District's on- airport wells
G. The County, the City of Aspen ( "City ") and the District executed a Memorandum
of Intent on March 31, 2010, by which the parties declared their intent to relocate, abandon or
cap the Well System Facilities, at the County's expense, and for the City to provide an alternate
water supply to the District so the District could continue to serve its water customers in the
County, including portions of the Airport Property.
H. In approving the Airport airfield project (in particular the language of its Finding
of No Significant Impact), the FAA required the County to mitigate any negative potential
effects of the project on the Well System Facilities. The County and the District have
determined that the best way to accomplish this mitigation is to abandon and cap the Well
System Facilities, and for the District to continue to serve certain County facilities currently
located, or to be developed, on the Airport Property with the water supply obtained from the
City.
Ns.?
2
I. The County has secured a grant from the FAA to be used for the purpose of
abandoning and capping the Well System Facilities, and constructing certain infrastructure
required in support of the delivery and storage of treated water from the City to the District.
J. To facilitate the District's ability to purchase treated water from the City to
replace the loss of the Well System Facilities, the District and the City have executed a Bulk Sale
Water Service Agreement ( "Bulk Sale Agreement ") that commits the City to sell and deliver a
defined quantity of treated water to the District for providing defined service to specific
properties. The District is then obligated to provide water service to certain existing, County
facilities on the Airport Property, known as the Airport Operations Center. The Airport
Operations Center is the existing facility on the west side of the Airport containing administrative
offices, training facilities, storage of snow removal equipment, airport equipment and firefighting
equipment, a fueling facility, and three employee residential units.
K. The County is prepared to pay certain fees required by the City as part of the Bulk
Sale Agreement, including all tap fees, all well system development fees, the costs of the master
meter and any electrical connections or upgrades (as provided in paragraph 3.1 of the Bulk Sale
Agreement, and a water rights dedication fee. The total amount of such fees is $1,985,757. If
such fees are more or less pursuant to the Bulk Sale Agreement, an appropriate adjustment shall
be made to the County.
L. The parties intend that this Agreement shall fully replace and supersede the 2001
IGA and 2003 IGA, as of the Service Commencement Date of the Bulk Sale Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. County Payment of Certain Fees Required by the City. To compensate
the District for its agreement to disconnect, cap and abandon the Well System Facilities under
the Bulk Sale Agreement, and to assure water service to certain County facilities on the Airport
Property, the County has agreed to pay to the City the amount of $1,985,757 (the "County
Payment "), which represents the total of all the tap fees, well system development fees, the costs
of the master meter, its installation, inspections, and any required electrical upgrades as set forth
3
in Section 3.1 of the Bulk Sale Agreement, and the water rights dedication fee payable to the
City under the Bulk Sale Agreement. If the actual fees are more or less, an appropriate
adjustment shall be made to the County. The County Payment shall be paid to the City at such
time as the City confirms to the County and the District that the items set forth in Sections 2.1(b)
through (f) of the Bulk Sale Agreement have been completed, that the requirements of
Section 2.1(g) are substantially complete, and that the "Service Commencement Date" under the
Bulk Sale Agreement will commence once the County Payment is received and Section 2.1(g) is
completed. Provided however, such compliance shall be staged and coordinated to ensure that
there is no interference with or interruption in water services to the District's customers.
2. Fulfillment of Conditions under Section 2.1 of Bulk Sale Agreement
a. Fulfillment of Section 2.1(a) of Bulk Sale Agreement: Capping
and Abandonment of Well System Facilities. The parties acknowledge that the County, the
District and the City have previously agreed on a process for the County to complete the
facilities to interconnect the City of Aspen's water system with the District's water system, and
that construction of such interconnect facilities will commence shortly after the effective date of
this Agreement. Upon completion of such interconnect facilities, the County and District will
cooperatively work to disconnect, cap and abandon the Well System Facilities, after full
planning and cooperation with the District, at the County's cost. Such disconnection, capping
and abandonment work will be performed in accordance with construction documents issued
pursuant to AIP Grant No. 3- 08- 0003 - 43/44. The parties intend that the disconnection, capping
and abandonment of the Well System Facilities will be completed within four years from the
effective date of this Agreement. The District agrees to abandon the Well System Facilities in
accordance with the terms of the Bulk Sale Agreement and the requirements of the State
Engineer, and allow them to be disconnected and capped by the County pursuant to this
Agreement.
b. Fulfillment of Sections 2.1(a) through 2.1(f) of Bulk Sale
Agreement. The District shall use its best efforts to fulfill the conditions set forth in
Sections 2.1(a) through 2.1(0 of the Bulk Sale Agreement in an expeditious and thorough
manner consistent with the timeframes set forth in the Bulk Sale Agreement. The District shall
4
notify the County in writing each time it has completed one of the conditions and received
confirmation from the City that the condition has been completed.
3. District Commitment to Continue Water Service. Upon payment by
the County of the County Payment, the District shall continue providing water service to the
Airport Operations Center in the manner prescribed by, and to the extent required under, the Bulk
Sale Agreement and the Service Plan. The parties acknowledge that the County and/or private
parties might seek to build additional facilities at the Airport in the future ( "Additional Airport
Facilities "), but that the District is not presently authorized under the Bulk Sale Water
Agreement to provide water service to any development on the Airport other than the Airport
Operations Center. Should the County desire additional water service in the future from the
District, the District shall use its best efforts to accommodate reasonable future water service
needs at the Airport, consistent with its obligations and authority under the Bulk Sale Agreement.
In the event that the County seeks additional water service from the District to serve future
Airport development, and the District is unable to provide such service after consultation with
the City, and, if after consultation with the City, the City and District agree the County would be
best served if the its additional needs were served by the City directly, that the District shall
cooperate with the County and City to the extent necessary to implement such alternative service
plans.
4. Potable Water Service Charge. The County shall pay the District's
standard water service charge ( "Water Service Charge "), not to exceed the rate charged to all
other similar uses within the District. The Water Service Charge paid for by the County shall be
equal to the most favorable rate charged to District customers plus the multiplier for extra-
territorial water users according to the District's then current rules and regulations for each
category or amount of use which applies to the County's water use at the Airport Property (such
multiplier not to exceed 1.4 times). In the event the District extends lower rate(s) of use to any
person or entity in the future than the rate(s) charged to the County, the District shall
automatically extend such lower rate(s) to the County without the County having to request
lower rate(s). In no event shall the District formulate rates or charges unique to the Airport
Property or that otherwise result in the County paying a higher rate or charge than similarly
situated extra - territorial customers of the District. If the District does not have a corresponding
5
category for the use or uses undertaken by the County on the Airport Property, then the
calculation of the Water Service Charge to be assessed to the County will be calculated using
standard water utility practices. If agreement cannot be reached on the Water Service Charge
assessed to the County, the parties shall agree upon a qualified water utility expert to undertake
this determination.
5. Payment of Water Delivery Charges. The County's obligation to pay
the Water Service Charge shall not commence until the County begins receiving water service
from the District. These charges shall be calculated in direct proportion to the actual water
demands of the County at the time the County requests such service from the District, if such
demands are less than the total anticipated demands of the County as set forth herein. Any
increase of those demands by the County over time shall result in a proportionate increase in the
County's obligation to pay the District the Water Service Charge. Other than the County
Payment, the County shall not be assessed any tap fees by the District for existing service at the
Airport Operations Center, however, for er any Additional Airport Facilities developed by the
County, the District may, in good faith, assess reasonable tap fees for Additional Airport
Facilities developed by the County or private parties.
6. Non - potable Water Deliveries. In Case Nos. 99CW306 and 01CW334,
the County estimated its irrigation demands on the Airport Property would not exceed 37 acre
feet per year. Pursuant to the 2003 IGA, the District agreed to deliver 37 acre feet per year to the
Airport Property for non - potable irrigation purposes to be supplied by the District on- airport
wellfield. By this Agreement, the District. has no obligation to deliver water for Airport Property
irrigation uses unless such additional irrigation demand is approved by the City under the Bulk
Sale Agreement. The District agrees, upon request of the County for such additional services, to
cooperate and make good faith efforts to obtain City consent for such additional uses under the
Bulk Sale Agreement. Upon receiving City consent for delivery of water to the Airport Property
for irrigation purposes, the District agrees to provide such services to the extent of the City's
approval.
7. Additional County- Supplied Non - potable Irrigation. The County may,
at its option, provide its own raw water supply for irrigation purposes on the Airport Property.
The District hereby agrees to any plan by the County to satisfy its irrigation demands on the
6
Airport Property by means other than service provided by the District, and agrees not to file a
statement of opposition to any application by the County in water court to accomplish such
irrigation purposes.
8. Water Rights Dedication Requirement. The Bulk Sale Agreement
approved by the City Council requires the District to convey to the City certain water rights
Listed as Exhibit B to that agreement ( "District Water Rights "), with the City proposing a
$70,000 credit toward the payment in lieu fees. The District believes that the water rights have a
value in excess of the credit, and would otherwise object to the mandatory nature of the
dedication, requirement, except for the following provision of additional compensation to the
District. The County agrees to pay the District an additional $70,000 within 30 days of service
commencement date of the Bulk Sale Agreement, in order to compensate the District for its
conveyance of the District's Water Rights to the City. This payment shall also satisfy the
County's previous obligation to convey to the District historical consumptive use credits for
water service to the Airport Operations Center.
9. Water Court Actions. The District hereby agrees to withdraw its claim
to make absolute a portion of its BMD Wellfield No. 1 water rights claimed in Case No.
09CW181, Water Division No. 5 and the County agrees to stipulate to the District's•Application
for Finding of Reasonable Diligence in that case. The County and District agree that by such
stipulation, and by submission of a proposed ruling and decree consistent with this Agreement,
any final decree entered in that case will continue the conditional status of the BMD Wellfield
No. 1 conditional water rights and shall not make any part of the BMD Wellfield No. 1 water
rights absolute. The parties shall work cooperatively to prepare the above contemplated
stipulation and decree and shall within a reasonable time after execution of this Agreement file
such stipulation and proposed ruling and decree with the water court.
10. Effect on 2001 and 2003 IGAs. Upon the disconnection of the District's
well field and interconnection of the District's Water Distribution Facilities (as defined in the
Bulk Sale Agreement) and commencement of deliveries of water to the District under said Bulk
Sale Agreement, then the terms of this Agreement shall be deemed to supersede supersedes the
2001 and 2003 IGAs, with the permanent easement referenced in the 2003 IGA terminating on
the Service Commencement Date of the Bulk Sale Agreement.
7
11. Granting of Easement. The County agrees that it will grant to the City
and District by subsequent agreement such easement rights in its Airport Property at no
additional consideration as are necessary to carry out this Agreement and the Bulk Sale
Agreement. The County and District agree that the terms to that easement shall seek to minimize
interruptions to Airport operations while providing the City and District such rights of access as
are needed to carry out their respective obligations under this Agreement and the. Bulk Sale
Agreement. The terms and language of such easement shall be negotiated in good faith and be
mutually acceptable to the parties.
12. Prior Claims and Settlements. Upon the Service Commencement Date
of the Bulk Sale Agreement, the District expressly waives any claims or causes of action related
to its on- airport well field and the County's airport expansion efforts, including but not limited to
those explicitly or implicitly identified by letter from Stanley L. Garnett, special counsel for the
District, to John M. Ely, County Attorney, dated October 3, 2007. Such Waiver shall survive
termination of this Agreement.
13. Effective Date of this Agreement. This Agreement shall become
effective on the date reflected in the first paragraph hereof, subject to the following termination
provision:
14. Authority to Execute. By signing this Agreement, the parties
acknowledge and represent to one another that all procedures necessary to validly contract and
execute this Agreement have been performed and that the persons signing for each party have
been duly authorized to do so. The parties acknowledge and agree that no representation or
inducement has been made regarding the rights set forth in this Agreement that are not expressly
set forth herein.
15. Reliance Upon Representations and Warranties. Each party
acknowledges that its representations and warranties as set forth above will be relied upon by the
other party in entering into and performing under this Water Service Agreement. The
representations, warranties, and remedy and indemnification provisions of this Agreement shall
survive the termination of this Agreement. The County and the District each shall:
(a) indemnify and hold the other harmless from any loss, damage, liability and reasonable
8
expense arising, or in any manner resulting, from any failure . in connection with the
representations and warranties made by one party to the other party; (b) defend at its sole cost
and expense, including, but not limited to, reasonable attorney fees, any suits or other
proceedings brought on account thereof against the other party; and (c) satisfy all judgments that
may in connection therewith be incurred by or rendered against the other party; provided,
however, that indemnification shall not be required if the claim of indemnity is based on a
negligent action, omission or fault of the party requesting indemnification.
16. Force Maieure. Force majeure shall excuse any party from timely
performance of a particular obligation under this Agreement. For purposes of this Agreement,
force majeure is defined as a reasonably unforeseeable event, including a circumstance or
condition, arising from a cause(s) beyond the control of the party claiming force majeure, which
causes delays that cannot be avoided by taking reasonable measures. Such force majeure event
shall include: an act of God, an act of War, an injunction, a stay or order from any governmental
agency or court of competent jurisdiction, or an act or omission of any non -party to this
Agreement over whom the party seeking to invoke these force majeure provisions has no
contractual relationship or control, and provided that such party exercised due care and took
precautions against the reasonably foreseeable acts or omissions of such third party. If a force
majeure event occurs, all performance periods affected by the event shall be extended by a
period of time equal to the duration of the effect of the force majeure event.
17. No Assignment Without Consent. The parties shall not, without first
obtaining the prior written consent of the other party, sell, assign, transfer, encumber,
hypothecate or sublease any or all of the rights, interest or obligations under this Agreement.
Such consent shall not be unreasonably withheld by the parties.
18. Performance. The parties agree to perform any and all acts, without
limitation, as may be reasonably necessary to fully effectuate the intent and purposes of this
Agreement. Whenever any action is required or permitted to be taken by the parties under the
terms of this Agreement, such action may be taken and performed by any authorized officer,
director, agent or other representative of the parties.
9
19. Notices. All notices or other communication required or permitted under
this Agreement shall be in writing, shall be personally delivered or sent by certified mail, postage
prepaid and return receipt requested, and such notices shall be deemed given when received.
Notices shall be directed to the following addresses:
Pitkin County: Pitkin County Manager
530 East Main Street, 3rd Floor
Aspen, CO 81611
With a copy to: Pitkin County Attorney
530 East Main Street, 3` Floor
Aspen, CO 81611
District: Buttermilk Metropolitan District
c/o Gary Beach
Beach Resource Management LLC
715 West Main St., Suite 304
Aspen, CO 81611 -1659
With a copy to: Kevin L. Patrick, Esq.
Patrick, Miller and Kropf, P.C.
730 East Durant Avenue, Suite 200
Aspen, CO 81611
Notice of any change of address shall be given by written notice in the matter detailed in
this paragraph.
20. Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by the successors
and assigns of the parties. This Agreement shall be executed in two counterparts, each of which
shall be deemed an original, and all of which when taken together shall constitute one and the
same instrument. An authenticated duplicate or copy of such an original shall be admissible and
acceptable for all purposes.
21. Entire Agreement. The provisions of this Agreement constitute the
entire understanding and agreement between the parties regarding the subject matter hereof, and
this Agreement supersedes all prior agreement, offers, acceptances and understandings of the
10
parties with respect to the subject matter hereof. This Agreement shall have no effect on the
Service Plan, which remains in full force and effect.
22. Construction of Agreement. The parties agree that the terms and
provisions of this Agreement . embody their mutual intent and that such terms and conditions are
not to be construed more liberally in favor of, or more strictly against, either party. To the extent
the mutual covenants of the parties under this Agreement create rights or obligations that extend
beyond the termination or expiration of this Agreement, such right or obligation shall be deemed
to survive such termination or expiration for the limited purpose of enforcing such covenants and
obligations in accordance with the terms of this Agreement.
23. Severability. If any term or provision of this Agreement shall be held to
be invalid or unenforceable, the remaining terms and provisions of this Agreement shall continue
to exist and shall be valid and enforceable to the fullest extent permitted by law.
24. Termination. The parties have the right to terminate this agreement by
mutual consent. This Agreement shall automatically terminate if the Bulk Sale Agreement is
terminated. The County may terminate this Agreement at its option at any time should it decide
it no longer needs the water service from the District.
25. Remedies, Venue and Jurisdiction. The parties shall have all rights
available at law or in equity to enforce the terms of this Agreement, including the right of
specific performance. The terms and provisions of this Agreement shall be construed in
accordance with the laws of the State of Colorado. The parties agree that any litigation regarding
the terms and condition of this Agreement shall be brought and pursued in jurisdictional courts
located in Colorado, and in no other state. Venue shall lie in Pitkin County for any action to be
conunenced in the District Courts of Colorado.
26. Attorneys Fees and Costs. The prevailing party in any litigation arising
under this Agreement shall be entitled to attorney fees and costs.
27. Amendment in Writing. The provisions of this Agreement may be
amended or modified only by a written instrument mutually executed and signed by duly
authorized representatives of the parties.
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28. No Joint Venture or Partnership. Nothing contained in this Agreement
shall be construed to create any association, trust, partnership, employment, or joint venture, or
to impose a trust or partnership, duty, obligation or liability, or except as specifically provided
herein, to create any agency relationship with regard to either party. No party shall have the
right to bind or obligate the other party in any way or manner, except as expressly stated herein.
29. No Third -Party Beneficiaries. This Agreement is intended to be solely
for the benefit of the parties, and their permitted successors and permitted assignees, and is not
intended to and shall not confer any rights or benefits on any third -party beneficiaries. As to any
third -party claims or causes of actions arising under or from the provisions of this Agreement,
the parties do not waive any rights or protections afforded to them under the Colorado
Governmental Immunity Act (C.R.S. §§ 24 -10- 101 -120, inclusive).
30. Waiver. No failure or delay of the parties to exercise any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to enforce such right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
Nothing contained in this Agreement shall constitute a waiver of any right, power or authority of
the parties hereto, except as expressly provided for herein.
WHEREFORE, the Parties hereto have executed this Agreement as of the day and year
first above written.
BUTTERMILK METROPOL AN DISTRICT
By: ad • Approved as to form:
/dc. r; ?ent
PATRICK, MILLER & KROPF, P.C.
ATTEST:
By:
Kevin L. Patrick
By: _ 4 Attorneys for Buttermilk Metropolitan District
t • retary
Sign . a
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BOARD OF COUNTY COMMISSIONERS
COUNTY OF PITIUN
BIZ ,76
tohetk R •k4he.r, Cowimissio
ATTEST:
Approved as to Form:
o �� ( k- By:
oe ii‘d/t GsLk J John I ttorney
i', 4/c.;4. tbur•) Clerk, Ch. :E F - Pe t o
•
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