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HomeMy WebLinkAboutresolution.council.048-12 RESOLUTION # `T (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR COLLECTION SYSTEM AGREEMENT FOR BURLINGAME'RANCH PHASE IIA BETWEEN THE CITY OF ASPEN AND ASPEN CONSOLIDATED SANITATION DISTRIST AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. • WHEREAS, there has been submitted to the City Council a contract for collection system agreement for Burlingame Ranch Phase IIA, between the City of Aspen and Aspen Consolidated Sanitation District, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for collection system agreement for Burlingame Ranch Phase IIA, between the City of Aspen and Aspen Consolidated Sanitation District, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of May 2012. S4 4 ■ ! (•*•f= ichael C. reland, 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, May 14, 2012. i titr \itA4e-IC' Kat /yn S. Koch, City Clerk RLB 1 Rider Levett Bucknall 1621 Eighteenth Street Suite 255 Denver,Colorado 80202 T:+1 720 904 1480 F:+1 720 904 1481 memorandum To Scott Miller, Steve Bossart City of Aspen cc Chris Everson City of Aspen From Rob Taylor Date 03 May 2012 Subject Burlingame Ranch Phase II g Reference No. Aspen San District- Recommendation Scott/Chris The purpose of this memo is to recommend that the Collection Service Agreement with Aspen Consolidated Sanitary District be approved. Background Aspen Consolidated Sanitary District(Aspen San) are the provider of sewer facilities to Aspen and they require a 40% deposit when Sewer infrastructure is installed. Aspen San provided a detailed breakdown of the total cost for the Sewer Tap fee of$669,767.50 plus $21,000 in design fees. Only$267,907 of the tap fee is required in 2012, and the 60% balance will fall in subsequent years, when the Building Permits are applied for each building (1,2,3,4,5,6, 14 and 4 RO lots). This overall tap fee, as well as the 40%deposit is within budget. Recommendation The total of$288,907 required to be paid in 2012 is within budget and we recommend that the Collection Service Agreement proposed by Aspen San is accepted and signed off by Council. Please contact me for any queries relating the attached or above. • Sincerely, Rob r Ta l Y Associate Principal Rider Levett Bucknall Ltd End:Aspen San Collection Service Agreement • www.rlb.com Aspen Consolidated Sanitation District Michael Kelly • Chair Stoney Davis • John Keleher• Vice Chair Joe Zanin Roy Holloway • Sec/Treas Bruce Matherly • Mgr COLLECTION SYSTEM AGREEMENT THIS AGREEMENT is made and entered into this day of , 2012, by and between the ASPEN CONSOLIDATED SANITATION DISTRICT, a quasi-municipal corporation of Pitkin County, Colorado (hereinafter"the District"), and the CITY OF ASPEN, Colorado, a municipal corporation and home-rule city (hereinafter"Developer") for the Burlingame Ranch Phase 2a, development. RECITALS: A. Developer is the owner of certain real property located within the District to be developed as Burlingame Ranch Phase 2a, (hereinafter the "Project"). B. District is the owner of an existing wastewater collection and treatment system providing wastewater collection and treatment services to all property owners within the District. C. As part of the Project,the District will design and have installed, at Developer's sole expense, an on-site wastewater collection system to service the Project(hereinafter the"Collection System"). In addition the Developer shall financially contribute on a proportionate basis to the District's existing wastewater collection system (hereinafter"District System Improvements"),which shall be specified in Section Five of this agreement, System Impacts. D. Developer desires to secure wastewater collection and treatment services from District. E. District agrees to provide wastewater collection and treatment services to Developer, upon the terms and conditions set forth below. NOW, THEREFORE, in consideration of these premises and the promises of each of the parties as set forth below, it is agreed: 1. Developer's Obligations. a. Developer agrees to pay the District all reasonable expenses incurred by District in retaining District Engineer, District Counsel, and such other professionals to be retained by the District in performing work related to design,selecting a contractor,construction, observation,and contract administration of the Collection System b. The Developer shall provide to the District and its Engineer the following information for design of the Collection System, and coordination with the Developer including,but not limited to: 1. A site survey with legal description of the property, and topographic map, and benchmark tied to the District's datum. 2. Existing conditions map including adjacent existing utilities. 3. Land use/development.application (if filed with the City/County). 4. Development site plan for the Project,showing building configurations,points of connection for sanitary and other utilities, finished floor elevations, and grading plan 5. Existing and proposed zoning. 6. Unit and fixture counts for each building(s). • 565 N. Mill St., Aspen, CO 81611 / (970)925-3601 /FAX (970)925-2537 c. Throughout the term of this Agreement, and prior to the first day of each calendar quarter, Developer shall provide the District with a schedule of the Project work for the upcoming calendar quarter, from which the District shall estimate the amount of money the Developer shall deposit with the District for design, coordination, construction, observation, and contract administration of the Collections System d. Developer shall notify or advise, in writing, all necessary local, state, and federal agencies with jurisdiction over the Project. _ e. Developer shall be responsible for securing any and all necessary permits and approvals for construction of the on-site Collection System. The District agrees to cooperate with Developer in obtaining all necessary permits and approvals described in the preceding sentence. Any and all costs incurred by the District as a result of such cooperation shall be reimbursed to the District by the Developer in accordance with the terms of this Agreement. f. Developer shall provide District with a detailed construction schedule for work to be performed on the Project and shall meet regularly with the District Engineer to discuss progress of the work, to coordinate construction of the Collection System, and to keep District Engineer informed as to the occurrence of any problems. g. Upon completion of the Collection System construction,the Developer shall provide in a form acceptable by the District the following: 1. Submission to the District of fully executed final amended plat and/or appropriate perpetual easement documents containing dedication and conveyance_ language, using • standard District formats, satisfactory to the District, giving the District the right to gain, access for and right to install, maintain, repair, and replace any or all of the Collection System and the right to use portions of the Project as reasonably necessary to conduct the business of the District. 2. Provision of evidence acceptable to District that such easements or other property rights will not be adversely affected by superior liens, mortgages, or other encumbrances, 2. District's Obligations. - - a. District agrees to retain a Professional Engineer who is familiar with and shall act in accordance with the District's rules, regulations, specifications, and requirements of wastewater collection systems (hereinafter "District Engineer") , to prepare plans and specifications for the Collection System, secure a District qualified Contractor for construction, provide contract administration, construction observation, and coordination with the Developer. District shall also retain legal and make available legal counsel("District Counsel")and such other professionals as are necessary to complete work on the Collection System pursuant to the terms of this Agreement. b. District shall through its Engineer prepare at Developer's expense, a preliminary design and cost estimate of the Collection System for the Project. Within thirty (30) days following execution of this Agreement, District shall deliver to the Developer the preliminary design and cost estimate,to be determined by the District,as payment for preparation of the preliminary design and cost estimate by the District Engineer. c. Following review of the preliminary designs and cost estimates, District shall prepare final designs, based upon suggested changes, if any. The set of final design plan documents and final cost estimates shall be provided to the Developer at least thirty(30) days prior to the award of_ any contract for construction and installation of the Collection System. d. District agrees to perform all reviews required under this Agreement in a reasonable and timely fashion. e. District shall maintain all monies paid by Developer pursuant to the terms of this Agreement in a public funds account. District reserves the right to prepare a final accounting of construction costs, District Engineer's fees, and District Counsel fees, together with a final accounting of all rates,fees,tolls, and charges imposed by the District,based upon the actual costs incurred by the District and the final configuration of the Collection System for the Project. If the actual amount of funds determined by the District to be due and owing from the Developer exceeds the amount previously paid by Developer hereunder, District shall bill Developer for the difference and Developer agrees to pay District said amount within thirty (30) days of receipt of such bill. If the actual amount of funds determined by the District to be due and owing from Developer is less than the amount previously paid by Developer hereunder,the District shall reimburse Developer for the difference,within thirty (30) days of issuance of final acceptance. It is mutually acknowledged the amount of funds determined by the District to be due and owing to the District from the Developer pursuant to this Agreement,throughout the performance of this Agreement, are ESTIMATES ONLY. 3. Service Connections. a. Developer, prior to Preliminary Design of the Collection System, shall provide all information for District to install individual private service connections to the Collection system within the Project including, but not limited,to, horizontal location, elevation and point of stub termination,and size. Total collection fees or other rates,fees, tolls, and charges of the District for such individual connections shall be paid in a manner prescribed by the District's rules and regulations. b. The District's Contractor shall install"stub-outs"for service connections at the time of Collection System construction in the Project, at Developer's expense, in accordance with paragraph c. below. These stub locations shall be provided by the Developer in writing to the District. Prior to the time of installation of any stub-out, Developer shall pay to the District forty percent,(40%) of the estimated current total connection fee then in effect, for that particular lot, known hereinafter as the "stub-out fee". c. When stub-outs are installed, Developer's engineer shall be responsible for establishing both the stub-out connection point on the main and the proposed stub out connection point. The service line stub out shall be extended to the edge of the public right-of-way or edge of sewer easement and laid at the proper grade to a point identified by the approval plans. The.end of the stub out shall be capped for future testing and marked with an above ground wooden or steel marker. The location of all stub outs shall be field confirmed with the District's engineer prior to covering any such stub out. The District's surveyor shall be responsible for providing survey information identifying the end of each stub out, and providing the information to the District for future use. If Developer or its successors elect not to use a previously installed stub-out: (1) The existing stub-out shall be excavated and capped off at the District's main, at Developer's or its successor's expense; if this task is not accomplished, the District shall have the right to perform this work, at Developer's or its successor's expense and bill Developer or its successor for such work; and (2) Developer or its successor shall lose the credit of the forty percent (40%) total connection charges previously paid and shall pay for a new total connection charge for the residence or other structure not utilizing previously installed stub-outs, at the rate in effect at the time the tap is to be made. d. At such time as Developer notifies the District that plans have been approved for construction of residence or other structure on any particular lot for which a stub-out fee has been paid,the balance of the total connection fee established by the District's rules and regulations shall be due and payable in full. From the time Developer has paid the District the initial portion of the total connection fee until the time the balance of the total connection fee,as determined pursuant to paragraph 3(e) below, is paid in full, prior to issuance of the building permit for the residence or other structure, Developer or any subsequent owner of a lot shall be responsible for payment of the District's standby fee. e. With respect to those lots where Developer has paid a stub-out fee,the balance of the total connection fee due at the time the District is notified of plan approval shall be based upon the total connection fee in effect at the time the building permit for the residence or other structure is to be issued. f. In all other situations, a total connection fee due for any lot shall not be capped or fixed and the balance shall be computed in accordance with District rules and regulations and total connection fee rates in effect at the time the balance of such fee is paid. 4. Upsizing. a. It is mutually acknowledged and understood that Developer shall be financially responsible for the cost of installing 8-inch internal diameter main.collection lines within the Project's Collection System. b. For any portion of the Collection System which District,in its sole discretion,requires a larger size pipe,the District shall not charge the Developer for the difference in cost between an 8- inch pipe size and the desired larger diameter pipe size. Upsizing costs shall be for the material costs of the pipe only. A statement for the actual cost of the upsized pipe installed shall be provided to the Developer as part of the Collection System construction costs documentation. 5. System Impacts. The parties hereto mutually acknowledge that the construction of the Project and the Collection System for the Project will have impacts upon the District's existing public sanitary wastewater collection system, such impacts shall be addressed by Developer including depositing funds in an account with the District as follows: a. With the submission of this CSA, Developer will deposit $21,000.00 with the District as an estimate of the ongoing engineering costs to proceed with final engineering drawings,for construction observation,for surveying and preparation of record drawings. b. Developer acknowledges that any and all damages done to the public wastewater collections system as well as private sanitary sewer service lines during construction of the Project shall be solely at the Developers expense and at the sole discretion of the District. c. Developer shall deposit with the District forty percent of the estimated total connection fees of$669,767.50 ($267,907.00) prior to the start of construction of the sanitary sewer system for this initial phase of the Project. The remainder of the total connection fees for this initial phase of the Project shall be paid to the District prior to issuance of the building permits for each building. d. Both the Developer and the District agree to amend this agreement for the subsequent phasing of the Project for the main sanitary sewer installation and . subsequent total connection fees that will be due and owing to the District. 6. District's Estimates. It is mutually acknowledged the amount of funds initially determined by the District to be due and owing to the District from the Developer pursuant to this Agreement, throughout the performance of the Agreement are estimates made in good faith. 7. Status of Accounts. For all accounts established and maintained by the District pursuant to this Agreement, the District agrees to provide Developer with account statements, showing the status of the funds maintained in said accounts. The parties mutually acknowledge the District is a governmental entity and therefore its financial statements are subject to the statutory requirement of an annual audit. The District covenants that it will direct its auditors, on an annual basis to specifically address the status of all such accounts by means of a detailed note to the District's annual audit report. 8. Rules and Regulations. Except to the extent that terms of this Agreement are inconsistent therewith, in which case the terms of this Agreement shall be deemed controlling, any and all provisions of the District's rules, regulations, and specifications regarding installation of the Collection System, District System Improvements connection thereto,and use thereof shall apply to the Developer, and its agents, independent contractors, related parties, successors and assigns. 9. Indemnity. To the extent permitted by law, the Developer shall indemnify, defend and hold the District harmless from and against any and all claims arising from the Developer's work or from the conduct of any activity, program or thing that may be permitted or suffered by the Developer, except that neither the Developer, its Board, agents or its employees will be liable under this paragraph for any claim, loss, damage, cost, charge or expense arising out of any negligent act by the District during the performance of this Agreement. The parties agree that nothing contained herein waives or is intended to waive any protections that may be applicable to the District or the developer under the Governmental Immunity Act, Section 24-10-101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. 10. Notices. All notices,requests,and other communications hereunder shall be in writing and shall be deemed to have been duly given upon delivery thereof, by hand, to the appropriate addresses hereinafter set forth, as evidenced by a signed receipt for same, or as of the second business day after mailing, by United States certified mail, return receipt requested, postage prepaid, addressed as follows: (a) To Developer: Steve Bossert, Capital Asset Project Manager City of Aspen 130 S. Galena Street Aspen CO 81611 With a copy to: James R. True, Esq. City Attorney • City of Aspen Aspen CO 81611 (b) To District: ASPEN CONSOLIDATED SANITATION DISTRICT 565 N. Mill St. Aspen, CO 81611 With a copy to: Robert Tibbals, Jr., Esq. Greenwood Executive Park, Building 7, Suite 302 6444 South Quebec Street • Englewood, Co 80111 11. Assignment/Transfer. In the event Developer assigns or transfers its interest in the Project prior to the completion of all the work referred to above, Developer shall provide written notice to the District thereof and be forever and finally released and discharged from any further liability or obligation under this Agreement and the District agrees to look solely to the assignee for the performance of all covenants, obligations, terms and conditions and for any breach thereof. 12. Miscellaneous. (a) Governing Law. This agreement shall be subject to and construed in accordance with the laws of the State of Colorado. (b) Entire Agreement. This Agreement contains the entire understanding and agreement between the parties herein with respect to the transactions contemplated hereunder and may be altered and amended from time to time only by awritten instrument executed by each of the parties hereto. (c) Further Acts. Each of the parties agree to execute, acknowledge, and deliver such further instruments, documents, or certificates and do all things and acts as the other party may reasonably require in order to carry out the intentions of this Agreement and the transactions contemplated hereby. (d) Attorney's Fees. In the event of any action for breach of,or to enforce the provisions of, or otherwise involving this Agreement,the court in such action shall award a reasonable sum as attorneys' fees to the party who, in light of the issues litigated and the court's decision on those issues, is the prevailing party in such action. (e) Binding Agreement.This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs,personal representatives, and any entities resulting from reorganization, consolidation, or merger of any party hereto. (f) Default. Neither the District nor Developer shall be responsible or deemed to be in default under this Agreement on account of delays in the performance of this Agreement due to causes beyond the District's or Developer's control, as the case may be,and not occasioned by their fault or negligence, including, but not limited to, fires, floods, explosions, earthquakes; serious accidents of third parties;strikes,riots,or insurrections;irreparable damage to sewer lines;any act of any government, governmental priorities, acts of God, or other public entity; failure of transportation; quarantine restrictions; or labor troubles causing. cessation, slow-downs or interruptions of work provided any and all costs are beyond the District's or Developer's control,as the case may be. Any party invoking the provisions of this subparagraph shall provide appropriate notice,'per paragraph 10 above, to the other party. 1 ' e IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ASPEN CONSOLIDATED SANITATION DISTRICT Attest: A quasi-municipal corporation By Title Title STATE OF COLORADO ) ss: COUNTY OF PITKIN The foregoing instrument was acknowledged, subscribed, and sworn to before me this day of , 20_, by as and by as of the ASPEN CONSOLIDATED SANITATION DISTRICT. My commission expires (SEAL) Notary Public CITY OF ; =PEN Att ' _ ■ 10/ / � ,%�/ 4/ — ,f Title Ste e Barwick, City Manager-City of Aspen STATE OF COLORADO ) ~ ) ss: COUNTY OF PITKIN The --_.'•9 instrument was acknowled ed subscribed, and sworn to before me this 5 day `►'/!' 1w� , 20 .31 ' fi Wit s ( ✓e' '' ` ► '3' r Hi of the CITY of ASPEN, 1449 .T: :. t�ipal corporation and home-rule city. •• • • 1716120 ;My commission gxpi es '%.d Il ts(°SEt�L) G�:O� &NA Netk,ble, ft1�qh.•.(JB�,t 4� Notary Public OFCOk-"--- My Commission Expires 0912512013 Aspen Consolidated Sanitation District Michael Kelly • Chair Stoney Davis John Keleher• Vice Chair Joe Zanin Roy Holloway • Sec%Treas Bruce Matherly • Mgr COLLECTION SYSTEM AGREEMENT THIS AGREEMENT is made and entered into this day of , 2012, by and between the ASPEN CONSOLIDATED SANITATION DISTRICT, a quasi-municipal corporation of Pitkin County, Colorado (hereinafter"the District"), and the CITY OF ASPEN, Colorado, a municipal corporation and home-rule city (hereinafter"Developer") for the Burlingame Ranch Phase 2a, development. RECITALS: A. Developer is the owner of certain real property located within the District to be developed as Burlingame Ranch Phase 2a, (hereinafter the "Project"). B. District is the owner of an existing wastewater collection and treatment system providing wastewater collection and treatment services to all property owners within the District. C. As part of the Project,the District will design and have installed, at Developer's sole expense, an on-site wastewater collection system to service the Project(hereinafter the"Collection System"). In addition the Developer shall financially contribute on a proportionate basis to the District's existing wastewater collection system (hereinafter"District System Improvements"),which shall be specified in Section Five of this agreement, System Impacts. D. Developer desires to secure wastewater collection and treatment services from District. E. / District agrees to provide wastewater collection and treatment services to Developer, upon the terms and conditions set forth below. NOW, THEREFORE, in consideration of these premises and the promises of each of the parties as set forth below, it is agreed: 1. Developer's Obligations. a. Developer agrees to pay the District all reasonable expenses incurred by District in retaining District Engineer, District Counsel, and such other professionals to be retained by the District in performing work related to design, selecting a contractor,construction,observation,and contract administration of the Collection System b. The Developer shall provide to the District and its Engineer the following information for design of the Collection System, and coordination with the Developer including, but not limited to: 1. A site survey with legal description of the property, and topographic map, and benchmark tied to the District's datum. 2. Existing conditions map including adjacent existing utilities. 3. Land use/development.application (if filed with the City/County). 4. Development site plan for the Project, showing building configurations,points of connection for sanitary and other utilities, finished floor elevations, and grading plan 5. . Existing and proposed zoning. 6. Unit and fixture counts for each building(s). 565 N. Mill St., Aspen, CO 81611 / (970)925-3601 /FAX (970)925-2537 c. Throughout the term of this Agreement, and prior to the first day of each calendar quarter, Developer shall provide the District with a schedule of the Project work for the upcoming calendar quarter, from which the District shall estimate the amount of money the Developer shall deposit with the District for design, coordination, construction, observation, and contract administration of the Collections System d. Developer shall notify or advise, in writing, all necessary local, state, and federal agencies with jurisdiction over the Project. e. Developer shall be responsible for securing any and all necessary permits and approvals for construction of the on-site Collection System. The District agrees to cooperate with Developer in obtaining all necessary permits and approvals described in the preceding sentence. Any and all costs incurred by the District as a result of such cooperation shall be reimbursed to the District by the Developer in accordance with the terms of this Agreement. f. Developer shall provide District with a detailed construction schedule for work to be performed on the Project and shall meet regularly with the District Engineer to discuss progress of the work, to coordinate construction of the Collection System, and to keep District Engineer informed as to the occurrence of any problems. g. Upon completion of the Collection System construction,the Developer shall provide in a form acceptable by the District the following: 1. Submission to the District of fully executed final amended plat and/or appropriate perpetual easement documents containing dedication and conveyance language, using standard District formats, satisfactory to the District, giving the District the right to gain access for and right to install, maintain, repair, and replace any or all of the Collection System and the right to use portions of the Project as reasonably necessary.to conduct the business of the District. 2. Provision of evidence acceptable to District that such easements or other property rights will not be adversely affected by superior liens, mortgages, or other encumbrances, 2. District's Obligations. a. District agrees to retain a Professional Engineer who is familiar with and shall act in accordance with the District's rules, regulations, specifications, and requirements of wastewater collection systems (hereinafter "District Engineer") , to prepare plans and specifications for the Collection System, secure a District qualified Contractor for construction, provide contract administration, construction observation, and coordination with the Developer. District shall also retain legal and make available legal counsel("District Counsel") and such other professionals as are necessary to complete work on the Collection System pursuant to the terms of this Agreement. b. District shall through its Engineer prepare at Developer's expense, a preliminary design and cost estimate of the Collection System for the Project. Within thirty (30) days following execution of this Agreement, District shall deliver to the Developer the preliminary design and cost estimate,to be determined by the District,as paymenf for preparation of the preliminary design and cost estimate by the District Engineer. c. Following review of the preliminary designs and cost estimates, District shall prepare final designs, based upon suggested changes, if any. The set of final design plan documents and final cost estimates shall be provided to the Developer at least thirty(30) days prior to the award of any contract for construction and installation of the Collection System. d. District agrees to perform all reviews required under this Agreement in a reasonable and timely fashion. e. District shall maintain all monies paid by Developer pursuant to the terms of this Agreement in a public funds account. District reserves the right to prepare a final accounting of construction costs, District Engineer's fees, and District Counsel fees, together with a final accounting of all rates,fees,tolls, and charges imposed by the District,based upon the actual costs incurred by the District and the final configuration of the Collection System for the Project. If the actual amount of funds determined by the District to be due and owing from the Developer exceeds the amount previously paid by Developer hereunder, District shall bill Developer for the difference and Developer agrees to pay District said amount within thirty (30) days of receipt of such bill. If the actual amount of funds determined by the District to be due and owing from Developer is less than the amount previously paid by Developer hereunder,the District shall reimburse Developer for the difference,within thirty (30) days of issuance of final acceptance. It is mutually acknowledged the amount of funds determined by the District to be due and owing to the District from the Developer pursuant to this Agreement,throughout the performance of this Agreement, are ESTIMATES ONLY. 3. Service Connections. a. Developer, prior to Preliminary Design of the Collection System, shall provide all information for District to install individual private service connections to the Collection system within the Project including, but not limited to, horizontal location, elevation and point of stub termination,and size. Total collection fees or other rates,fees, tolls, and charges of the District for such individual connections shall be paid in a manner prescribed by the District's rules and regulations. b. The District's Contractor shall install"stub-outs"for service connections at the time of Collection System construction in the Project, at Developer's expense, in accordance with paragraph c. below. These stub locations shall be provided by the Developer in writing to the District. Prior to the time of installation of any stub-out, Developer shall pay to the District forty percent,(40%) of the estimated current total connection fee then in effect, for that particular lot, known hereinafter as the "stub-out fee". c. When stub-outs are installed, Developer's engineer shall be responsible for establishing both the stub-out connection point on the main and the proposed stub out connection point. The service line stub out shall be extended to the edge of the public right-of-way or edge of sewer easement and laid at the proper grade to a point identified by the approval plans. The end of the stub out shall be capped for future testing and marked with an above ground wooden or steel marker. The location of all stub outs shall be field confirmed with the District's engineer prior to covering any such stub out. The District's surveyor shall be responsible for providing survey information identifying the end of each stub out, and providing the information to the District for future use. If Developer or its successors elect not to use a previously installed stub-out: (1) The existing stub-out shall be excavated and capped off at the District's main, at Developer's or its successor's expense; if this task is not accomplished, the District shall have the right to perform this work, at Developer's or its successor's expense and bill Developer or its successor for such work; and (2) Developer or its successor shall lose the credit of the forty percent (40%) total connection charges previously paid and shall pay for a new total connection charge for the residence or other structure not utilizing previously installed stub-outs, at the rate in effect at the time the tap is to be made. • d. At such time as Developer notifies the District that plans have been approved for construction of residence or other structure on any particular lot for which a stub-out fee has been paid,the balance of the total connection fee established by the District's rules and regulations shall be due and payable in full. From the time Developer has paid the District the initial portion of the total connection fee until the time the balance of the total connection fee,as determined pursuant to paragraph 3(e) below, is paid in full, prior to issuance of the building permit for the residence or other structure, Developer or any subsequent owner of a lot shall be responsible for payment of the District's standby fee. e. With respect to those lots where Developer has paid a stub-out fee,the balance of the total connection fee due at the time the District is notified of plan approval shall be based upon the total connection fee in effect at the time the building permit for the residence or other structure is to be issued. f. In all other situations, a total connection fee due for any lot shall not be capped or fixed and the balance shall be computed in accordance with District rules and regulations and total connection fee rates in effect at the time the balance of such fee is paid. 4. Upsizing. a. It is mutually acknowledged and understood that Developer shall be financially responsible for the cost of installing 8-inch internal diameter main collection lines within the Project's Collection System. b. For any portion of the Collection System which District,in its sole discretion,requires a larger size pipe,the District shall not charge the Developer for the difference in cost between an fl- inch pipe size and the desired larger diameter pipe size. Upsizing costs shall be for the material costs of the pipe only. A statement for the actual cost of the upsized pipe installed shall be provided to the Developer as part of the Collection System construction costs documentation. 5. System Impacts. The parties hereto mutually acknowledge that the construction of the Project and the Collection System for the Project will have impacts upon the District's existing public sanitary wastewater collection system, such impacts shall be addressed by Developer including depositing funds in an account with the District as follows: a. With the submission of this CSA, Developer will deposit $21,000.00 with the District as an estimate of the ongoing engineering costs to proceed with final engineering drawings,for construction observation,for surveying and preparation of record drawings. b. Developer acknowledges that any and all damages done to the public wastewater collections system as well as private sanitary sewer service lines during construction of the Project shall be solely at the Developers expense and at the sole discretion of the District. c. Developer shall deposit with the District forty percent of the estimated total connection fees of$669,767.50 ($267,907.00) prior to the start of construction of the sanitary sewer system for this initial phase of the Project. The remainder of the total connection fees for this initial phase of the Project shall be paid to the District prior to issuance of the building permits for each building. d. Both the Developer and the District agree to amend this agreement for the subsequent phasing of the Project for the main sanitary sewer installation and subsequent total connection fees that will be due and owing to the District. • • 6. District's Estimates. It is mutually acknowledged the amount of funds initially determined by the District to be due and owing to the District from the Developer pursuant to this Agreement, throughout the performance of the Agreement are estimates made in good faith. 7. Status of Accounts. For all accounts established and maintained by the District pursuant to this Agreement, the District agrees to provide Developer with account statements, showing the status of the funds maintained in said accounts. The parties mutually acknowledge the District is a governmental entity and therefore its financial statements are subject to the statutory requirement of an annual audit. The District covenants that it will direct its auditors, on an annual basis to specifically address the status of all such accounts by means of a detailed note to the District's annual audit report. 8. Rules and Regulations. Except to the extent that terms of this Agreement are inconsistent therewith, in which case the terms of this Agreement shall be deemed controlling, any and all provisions of the District's rules, regulations, and specifications regarding installation of the Collection System, District System Improvements connection thereto, and use thereof shall apply to the Developer, and its agents, independent contractors, related parties, successors and assigns. 9. Indemnity. To the extent permitted by law, the Developer shall indemnify, defend and hold the District harmless from and against any and all claims arising from the Developer's work or from the conduct of any activity, program or thing that may be permitted or suffered by the Developer, except that neither the Developer, its Board, agents or its employees will be liable under this paragraph for any claim, loss, damage, cost, charge or expense arising out of any negligent act by the District during the performance of this Agreement. The parties agree that nothing contained herein waives or is'intended to waive any protections that may be applicable to the District or the developer under the Governmental Immunity Act, Section 24-10-101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. 10. Notices. All notices,requests,and other communications hereunder shall be in writing and shall be deemed to have been duly given upon delivery thereof, by hand, to the appropriate addresses hereinafter set forth, as evidenced by a signed receipt for same, or as of the second business day after mailing, by United States certified mail, return receipt requested, postage ' . prepaid, addressed as follows: (a) To Developer: Steve Bossert, Capital Asset Project Manager • City of Aspen 130 S. Galena Street Aspen CO 81611 With a copy to: James R. True, Esq. City Attorney City of Aspen Aspen CO 81611 (b) To District: ASPEN CONSOLIDATED SANITATION DISTRICT - • 565 N. Mill St. Aspen, CO 81611 With a copy to: Robert Tibbals, Jr., Esq. Greenwood Executive Park, Building 7, Suite 302 6444 South Quebec Street Englewood, Co 80111 11. Assignment/Transfer. In the event Developer assigns or transfers its interest in the Project prior to the completion of all the work referred to above, Developer shall provide written notice to the District thereof and be forever and finally released and discharged from any further liability or obligation under this Agreement and the District agrees to look solely to the assignee for the performance of all covenants, obligations, terms and conditions and for any breach thereof. 12. Miscellaneous. (a) Governing Law. This agreement shall be subject to and construed in accordance with the laws of the State of Colorado. (b) Entire Agreement. This Agreement contains the entire understanding and agreement between the parties herein with respect to the transactions contemplated hereunder and may be altered and amended from time to time only by a written instrument executed by each of the parties hereto. (c) Further Acts. Each of the parties agree to execute, acknowledge, and deliver such further instruments, documents, or certificates and do all things and acts as the other party may reasonably require in order to carry out the intentions of this Agreement and the transactions contemplated hereby. (d) Attorney's Fees. In the event of any action for breach of, or to enforce the provisions of, or otherwise involving this Agreement,the court in such action shall award a reasonable sum as attorneys' fees to the party who, in light of the issues litigated and the court's decision on those issues, is the prevailing party in such action. (e) Binding Agreement.This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns,heirs, personal representatives, and any entities resulting from reorganization, consolidation, or merger of any party hereto. (f) Default. Neither the District nor Developer shall be responsible or deemed to be in default under this Agreement on account of delays in the performance of this Agreement due to causes beyond the District's or Developer's control,as the case may be,and not occasioned by their fault or negligence, including, but not limited to, fires, floods, explosions, earthquakes; serious accidents of third parties;strikes,riots, or insurrections;irreparable damage to sewer lines; any act of any government, governmental priorities, acts of God, or other public entity; failure of transportation; quarantine restrictions; or labor troubles causing cessation, slow-downs or interruptions of work provided any and all costs are beyond the District's or Developer's control, as the case may be. Any party invoking the provisions of this subparagraph shall provide appropriate notice, per paragraph 10 above, to the other party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ASPEN CONSOLIDATED SANITATION DISTRICT Attest: A quasi-municipal corporation By Title Title STATE OF COLORADO ) ss: COUNTY OF PITKIN The foregoing instrument was aclmowledged, subscribed, and sworn to before me this day of ,20 , by as and by as of the ASPEN CONSOLIDATED SANITATION DISTRICT. My commission expires (SEAL) Notary Public CITY OF ASPEN Attest.' ,Af .Ii 1d p By L{7 / Ti a Steve Barwick, City Manager-City of Aspen STATE OF COLORADO ) ss: COUNTY OF PITKIN The for ;'frig instrument was : • owled,,-d subscri•ed, and sworn to before me this 1s day of LA'.-.`0 , by _whit 1. all ! Cthl MAC � and by a!,alt`TLA��,; • as 1J't{C K- •~o the CITY of ASPEN, Colo � 'r rporatior} and home-rule city. . a ZO My .mtaission expires". +s • (SEi ) • Il, q•••AUB��j•PQO� Notary Public• P `‘ OF COL° ^ ►Commission Expires 0912512019