HomeMy WebLinkAboutordinance.council.005-99
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ORDINANCE NO. 6'"
Series of 1999
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A WATER SERVICE AGREEMENT WITH BIDGLE, LLC FOR PROVISION OF
WATER SERVICE TO A PROJECT KNOWN AS BLOCK I AND BLOCK 3 OF THE NORTH
FORTY PROJECT, IN PITKIN COUNTY, COLORADO,
WHEREAS, the predecessor in interest to Bidgle LLC submitted an Application for Water
Service to the City Water Department, requesting that water service be provided to the educational
and residential components of the North 40 Project; and
WHEREAS, the property to be served is now owned by Bidgle LLC, and is located in Pitkin
County, and not within the City limits of the City of Aspen; and
WHEREAS, Section 25,12.020 of the Aspen Municipal Code provides that any extension
,r'"'. of City water service outside the corporate limits of the City of Aspen shall be made pursuant to an
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agreement with the City and in accordance with the City of Aspen water main extension policy and,
further, that the City may grant water service only upon a determination that no conflict exists
between the best interests of the City and the prospective water use, and that the City may impose
such contract, water rights dedication and bond requirements as it deems necessary to safeguard the
best interests of the City; and
WHEREAS, the City Council has adopted by Resolution No,S, Series of 1993, as amended,
policies to guide municipal water system development and services beyond the City limits; and
WHEREAS, said policies require the City Council to make a determination that the proposed
water service extension complies with said policies and is in the best interests of the City of Aspen;
and
WHEREAS, the City Council has had an opportunity to review with City staff the proposed
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extension of water service to Bidgle's property, and, on March 9, 1998, passed Resolution No. 19
(series of 1998), approving the extension of water service to the educational and residential
components of the North 40 Project, subject to certain conditions, including execution of a water
service agreement; and
WHEREAS, Resolution No, 19 (series of 1998) recognizes that Bidgle LLC and the City
were unable to reach agreement regarding the scope and extent of application of a 1969 water
service agreement between the City and Bidgle LLC's predecessor (the "1969 Agreement"), so any
water service agreement between Bidgle LLC and the City must recognize the unique circumstances
of the 1969 Agreement,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT
Section 1.
The City Council of the City of Aspen hereby determines that the
proposed provision of City water to the residential and educational components of the North 40
Project located outside the City limits of the City of Aspen is in the best interests of the City and, to
the extent applicable in light of the 1969 Agreement, complies with the City's Code and policies
regarding extraterritorial extension of water service, and therefore agrees to extend City water service
to the residential and educational components of the North 40 Project on the terms and conditions
set forth in the Water Service Agreement attached hereto and incorporated herein by reference.
Section 2.
This ordinance shall not have any effect on existing litigation and shall
not operate as an abatement of any action or proceeding now pending under or by virtue of
ordinances repealed or amended as herein provided, and the same shall be construed and concluded
under such prior ordinances.
Section 3.
If any section, subsection, sentence, clause, phrase or portion of this
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o ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and shaH not affect the
validity of the remaining portions thereof.
Section 4.
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A public hearing on the ordinance shall be held on the
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, 199 j in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the L day of M C( r~ , 1995
Attest:
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FINALLY ADOPTED, PASSED AND APPROVED THIS ;).:2. DAY OF
}v'l tt //,-Ilc. ' 1995-
Attest:
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CITY OF ASPEN
WATER SERVICE AGREEMENT
of
This Water Service Agreement is entered into this 22.1l. day of
tJ\CivC\\ ,~, in Aspen, Colorado, between THE CITY OF ASPEN, a
Colorado municipal corporation and home rule city whose address is 130 South
Galena Street, Aspen, Colorado 81611 (hereafter "City"), and BIDGLE, LLC, a
limited liability company, organized under the laws of Colorado, whose address
is 303 E AABC, Aspen, Colorado 81611 (hereafter "Bidgle").
WITNESSETH
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WHEREAS, the City owns and operates the City of Aspen water system in
accordance with the laws of the State of Colorado, and in accordance with the
charter, ordinances, rules, regulations, policies and resolutions of the City of
Aspen, and this Agreement is entered into in conformity with, and subject to,
such charter, and all such ordinances, rules, regulations, policies and
resolutions; and
WHEREAS, Bidgle is the owner of certain real property comprising
approximately 23.49 acres situated in Pitkin County, Colorado, as more
particularly described in Addendum 1, and referred to in this Agreement as the
"Property"; and
WHEREAS, Bidgle plans to develop the Property into three distinct
components: Block 1 for educational facilities; Block 2 for future commercial
uses; and Block 3 for 72 residential units; and
WHEREAS, Bidgle seeks to obtain municipal water service from the City
for Block 1 and Block 3 as approved by Pitkin County and described in detail in
the attached Addendum 2 (referred to herein as "Project") and to specifically
exclude Block 2 from this current water service agreement; and
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WHEREAS, water service for the Project will require construction and
installation of new mains and lines which shall connect to other treated water
mains of the City to create a looped system as required by the City, and as more
specifically described in Exhibit A; and
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WHEREAS, the Project is located outside the corporate limits of the City;
and
WHEREAS, approval for the Project was originally granted by the Board
of County Commissioners for Pitkin County by Resolution No. 96-286, on
October 23, 1996, and Resolution No. 98-99 on May 27, 1998; and
WHEREAS, the Municipal Code of the City of Aspen, Colorado (the
"Code"), requires that the extension of water service outside the boundaries of
the City shall be made only pursuant to a written agreement with the City, that
the City shall not be obligated to extend such service, and may provide such
service only upon a determination that it is in the best interests of the City, and
that the City may impose such requirements by agreement as it deems
necessary to protect its best interests; and
WHEREAS, the City's Water Service Extension Policy permits water
service extension only upon demonstration that such extension will meet the
policy goals and requirements of Resolution No.5 (Series of 1993) as amended
(\ (codified at Section 25.12.020(b) of the Aspen Municipal Code]; and
WHEREAS, the City has determined that this Agreement and all
covenants herein are necessary to comply with the Code and the City's water
policies, and
WHEREAS, the City is not hereby representing that it is a regulated
public utility, or holding itself out to the public in general as capable of or
intending to provide water service extraterritorially; and
WHEREAS, Section 25.08.060(e) of the Code provides for the rating of
new or expanded water service based on potential water demand as expressed
in equivalent capacity units(hereafter "ECU") with ECU defined as "a unit
reflecting that part of the capacity of the [City] water system necessary to serve a
standard water customer, with multiples or fractions of the unit including a
maximum number and type of water fixtures, a maximum irrigated area, certain
cooking facilities or other water demand factors;" and
WHEREAS, the City desires to encourage the use of raw water supplies
for certain outdoor irrigation where practical and feasible so as to reduce the
dependence on treated water for this purpose, and to minimize the costs of
providing treated water service to the Project. and
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WHEREAS, Bidgle has submitted its "Application for Water Service
Extension" (the "Application") and has paid all fees required in connection with
the Application; and
WHEREAS, the City approved the Application pursuant to Resolution No.
19, Series of 1998 (March 9, 1998) and is willing to provide water service to
Block 1 and Block 3 (the residential and educational components) in an amount
that provides the number of ECU's reasonably necessary for the Project,
including irrigation and soccer field requirements; and
WHEREAS, pursuant to Resolution No. 19, Series of 1998 (March 9,
1998), the City approved the extension of water service to the Project after
determining that the extension complies with the City of Aspen Water Policy for
extraterritorial extension of services as set forth in Resolution 5, series of 1993
(as amended) and that the City of Aspen has the present capacity to serve the
Project; and
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WHEREAS, the parties cannot agree whether the 1969 "Contract for
Contribution Toward Water Main Construction" between the City of Aspen and
John P. McBride d/b/a Aspen Airport Business Center, the predecessor in
interest to Bidgle, LLC, recorded November 14, 1969, at Book 244, Pages 883-
887 with the Pitkin County Recorder ("1969 Agreement") requires the City of
Aspen to provide water to the Project or the Property; and
WHEREAS, notwithstanding the parties' differing views as to the current
status of the 1969 Agreement, the parties agree and intend that so long as this
Agreement remains in effect, its terms and conditions shall apply to the
provisions of water service to the Project (i.e., Block 1 and Block 3 of the North
Forty Project); and
WHEREAS, by execution of this Agreement, the City of Aspen does not
admit to any obligation to provide water service to the Project or the Property
pursuant to the 1969 Agreement and Bidgle does not waive its claim that the
City of Aspen is obligated to provide water service to the Project and the
Property under the 1969 Agreement; and
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WHEREAS, the City has determined that if the Project as approved by
Pitkin County is constructed in accordance with such approvals, and in
accordance with the design drawings attached as Exhibit A, and the City's
standards and specifications for water system infrastructure, it will be in
compliance with the Aspen Area Community Plan and the Code as well as the
City's policies regarding extension and delivery of municipal water to the Project
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to the extent the Code and such policies are applicable in light of the 1969
Agreement hereinafter referred to;
THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, the City and Bidgle agree as follows:
PURPOSE OF AGREEMENT
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1. Water Service to Proiect. The City hereby agrees to provide
treated water service to the Project under the terms of this Agreement in such
quantities and to the extent herein provided so as to serve the structures and
uses authorized by Pitkin County as summarized in Addendum 2, Bidgle
understands that the City will be the sole provider for treated water to the Project,
provided, however, that the Project is assumed to require approximately 192
ECUs, and that the maximum volume of treated water the City shall be required
to provide to the Project pursuant to this Agreement shall not exceed 80 acre-
feet per year. (This ECU computation includes an estimated 144 ECUs for
housing units, 13 ECUs for accessory dwelling units, 10 ECUs for the Colorado
Mountain College, and 25 ECUs for irrigation of the soccer field and open space.
Water for irrigation of the soccer field is presently provided by the City from its
treated water distribution system.) Only those structures and uses approved for
the Project may be served under this Agreement, and to the extent so provided
under this Agreement, this Agreement shall control the provisions for water
service to the Project.
2. Limitation of Time to Provide Water Service. The City's obligation
to provide water service to the Project, pursuant to this Agreement, shall
terminate if Bidgle or its assigns has not completed construction of the additional,
upgraded or upsized water transmission and distribution mains and lines
described on Exhibit A to serve the Project by May 31,2001, unless the parties
agree in writing to an extension of this deadline or unless completion of
construction is delayed by force majeure as defined in paragraph 31 below, in
which case the deadline shall be extended by the same number of days as the
force majeure delay that prevented completion of construction.
CONSTRUCTION BY BIOGLE
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3. Water Mains and Lines, Bidgle will design and its successor or
assign, North Forty, LLC will construct the additional, upsized andlor upgraded
water transmission and distribution mains, lines and internal distribution lines for
the Project in accordance with and subject to the City's design, materials and
construction specifications and approval, at Bidgle's or assign's expense;
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provided, however, that to the extent the City desires any mains or lines with
capacities larger than necessary to meet the needs of the Project, the City will be
responsible for the incremental cost of such enlarged or additional mains or
lines. "Incremental cost" shall be defined as the difference between the total
cost of a particular main or line designed and constructed solely to meet the
needs of the Project and the total cost of such main or line as enlarged at the
City's request.
4. Preconstruction Exhibits. The following exhibits concerning the
Project have been prepared by Bidgle and have been reviewed and relied upon
by the City in entering into this Agreement, and shall not be substantially
modified without the City's agreement:
Exhibit A:
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Reduced size copies of the plans for the additional, upsized andlor
upgraded water mains, interconnecting mains (loop system), lines and
internal distribution lines to be constructed pursuant to this Agreement, as
approved by the City.
Exhibit B:
a. Schedule for completion of the Project's water mains
and lines to be constructed pursuant to this
Agreement as approved by the City.
b.Estimated gross water requirement (gpd) and water
flow requirements for the Project for in-building use at
full development (including water requirements for
any existing uses that will be continued upon
completion of the Project), and estimated treated
water irrigation requirements, including number of
square feet to be irrigated with treated water.
c. Fireflow provisions, including location, size and
description of fireflow storage to serve the Project.
d. Description of general location of easements to be
conveyed to the City.
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e.
Information detailing computation of tap fee escrow amounts as
described in Paragraph 7.
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5. Final Plans: Preconstruction Meetina. The City has approved the
final plans and specifications for the additional, upsized andlor upgraded water
mains, interconnecting mains (loop system), lines and internal distribution lines
to serve the Project. No substantial changes shall be made to the approved final
plans and specifications without the City's prior written approval. Bidgle or
assigns shall contact the City Water Department at least ten (10) working days
prior to commencement of construction to arrange a preconstruction meeting
between representatives of the Water Department, the Water Department's
inspector and Bidgle's or assigns' engineer and contractor to review the final
plans and any minor modifications thereto, to discuss construction scheduling, to
arrange for the deposit in advance of the City's construction inspection fee, and
any other matters that the parties deem necessary. Bidgle's or assigns'
registered professional project engineer shall inspect and certify the design and
installation of all water system mains and lines to be constructed pursuant to this
Agreement.
6. Financial Assurances. Prior to commencement of construction
Bidgle or assigns shall provide to the City bonds or other financial security acceptable to
the City Attorney assuring substantial completion of the water system described in
Exhibit A within the time frame set forth in Paragraph 2 above. The instrument or
instruments setting forth the financiai security shall name the City as a third party
beneficiary in an amount equal to 100 % of the estimated cost of construction of the
water system for the Project. Alternatively, Bidgle may provide the City a copy of the
financial assurances required by the County for all the infrastructure of the project,
wherein the City is named as a third party beneficiary in an amount equal to the 100% of
the estimated cost of construction of the water system for the Project. The City will
reimburse the incremental costs, if any, for enlarged or additional facilites requested by
the City as provided in paragraph 3 above. Such instrument (s) shall be in form
acceptable to the City Attorney and shall ensure completion of and payment for the
construction and hold the City harmless for payment to the contractor or any
subcontractors, materialmen or others involved in the construction of the water
transmission and distribution mains, interconnecting mains (loop system), lines and
associated facilities or for the provision of materials therefor. Bidgle or its assigns shall
assign to the City all warranties from contractors, materialmen and suppliers which
warrant the water system improvements constructed by Bidgle or assigns free and clear
of defects for period of two (2) years from the date of completion of construction. Upon
acceptance of the completed water system for the Project by the City, Bidgle, its
successors or assigns shall provide to the City a form of financial security or other
collateral, together or independent from similar financial assurances required of Bidgle
or its assigns, which financial security or other collateral shall be approved by the City
Attorney and shall be in an amount equal to 100% of the construction costs of the water
system to ensure
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the proper condition and operation of such water system for a period of two (2)
years from the date of acceptance of the system by the City. The City will
reimburse the incremental costs, if any, for enlarged or additional facilites
requested by the City as provided in paragraph 3 above.
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7. Tap Fee Escrow: Hookup Charae Waiver. and Pre-Tapping
Agreement. The parties acknowledge that Pitkin County has required that Bidgle
deposit a sum of money from which one-half (%) of the water tap (utility
connection) fees for the Project residences will be paid. In order to meet the
County's requirement, the parties have agreed that Bidgle will establish an
escrow account with a local bank, and will deposit into such escrow account the
sum of $401 ,388,00, representing an estimated one-half of the tap fees for the
sixty (60) lots on which single family residences will be constructed. The parties
have determined the escrow deposit by assuming that 48 lots are expected to
utilize 1.7 ECUs apiece and the 12 lots which have a cap of $200,000.00 on the
value of the home are expected to utilize 1.5 ECUs apiece. The ECU counts
were estimated based on Section 25.08.090 of the Code. The applicable tap fee
in Billing Area 6 is $8060.00 per ECU, so the tap fee deposit is computed as
follows:
% x (1.7 ECUs x 48 units x $8060.00) = $328,848.00
% x (1.5 ECUs x 12 units x $8060.00) = 72.540.00
TOTAL ESCROW DEPOSIT $401,388.00
Bidgle shall be responsible for establishing the escrow account, and
paying all costs associated therewith, and shall be entitled to all interest earned
thereon. The escrow account shall be established and funded no later than the
date of final plat recordation,
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When an owner of one of the 60 lots for which a portion of the tap fee has
been escrowed requests a building permit, the City shall compute the estimated
tap fee (subject to revision upon inspection following completion of construction),
based on the City's then-applicable tap fee, If the owner owns one of the 48 lots
described above, an amount equal to $6851.00 shall be requested from the
escrow agent for application to that owner's tap fee. The owner shall be
responsible for the remainder of the tap fee. If the owner owns one of the 12
lots described above as to which a limit of $200,000.00 is imposed on the value
of the home, an amount equal to $6045.00 shall be requested from the escrow
agent for application to that owner's tap fee, and the owner shall be responsible
for the remainder of the tap fee. The parties recognize that individual residences
subject to this paragraph may have ECU counts that are greater or less than
those used to determine the escrow deposit, and that the City may in the future
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raise its tap fees. It is therefore possible that the escrowed amount applied to
any particular residence tap fee may not equal one-half of the actual tap fee
imposed for that residence.
Although the parties have agreed that this water service agreement
applies to the provision of water service to the Project, notwithstanding their
differing views regarding the applicability of the 1969 Agreement, the City agrees
that due to the unique circumstances of this water service agreement, the City's
utility hook-up charges (which are typically imposed in addition to the tap fee
[also known as a utility connection charge]) will be waived for water service
connections by the residences and town homes within the Project. The City's
agreement to this waiver is not a precedent for any other water service
agreement to which the City is or may become a party.
The parties further agree that Bidgle may execute a Pre-Tapping
Agreement which will permit Bidgle or its assigns to make water service
connections to all lots in the Project. "Pretapping" is defined as connection of an
individual service line to a main or distribution line when the main or distribution
f" line is installed. Bidgle has advised the City that it wishes to pretap the
distribution lines. A Pretapping Agreement will be executed by the parties
contemporaneously with this Agreement, and will require payment of tap fees as
provided therein when application is made for a building permit for the pretapped
parcel. The tap fee to be paid for a pretapped parcel will be the City's prevailing
applicable tap fee at the time application is made for the building permit for that
parcel. If a payment from escrow is available to a lot owner, it shall be withdrawn
from the escrow account at the time the lot owner applies for a building permit,
and said payment shall be credited towards that owner's tap fee.
8. Pavment in Lieu of Water Riahts. The City has determined that,
under the unique facts of this water service agreement, Bidgle and assigns shall
not be required to transfer water rights to the City, or to make a payment in lieu
of water rights as a condition of receiving water service under this Agreement.
9. Construction. Upon completion of the prerequisites described in
paragraphs 3 through 7 above, Bidgle shall proceed with due diligence to
construct the water transmission and distribution mains and lines in accordance
with the plans and specifications and the construction schedule. No construction
shall occur between November 1 and April 1 without written approval of the City
Water Department. Bidgle acknowledges that an automated meter reading
system may be required by the City for each connection, and that the cost of
o such system shall be included in the meter charge paid by the owner of the
connection.
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10. Fees. In addition to the tap fee deposit referred to in paragraph 7
above, Bidgle or its assigns shall timely pay all fees imposed by the City in
connection with reviewing and approving this Agreement, the design drawings
and construction plans, as well as construction inspection fees. Bidgle
understands that such fees may include staff time at published rates andlor time
spent by outside consultants andlor inspectors. To the extent reviews or
inspections are conducted by outside firms retained by the City, the actual costs
of such firms shall be paid. An advance deposit for construction inspection fees
shall be required at the preconstruction meeting described in paragraph 5 above.
Bidgle or its assigns shall also be responsible for timely acquiring and paying for
all permits and permit fees from entities other than the City (such as Pitkin
County and/or other regulatory agencies) necessary for construction of the mains
and lines.
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11. Insoection of Construction. Construction must be inspected by the
City's engineers or other designated personnel prior to burial of underground
water mains or final installation of other facilities. Bidgle or assigns shall give the
City reasonable advance notice when the mains and lines are ready for burial or
installation, as appropriate, and the City's engineer or agent shall inspect said
mains and lines within two business days of such notice. Bidgle or assigns shall
timely pay all construction inspection fees. If such inspections are conducted by
outside firms retained by the City, the actual costs of such firms shall be paid.
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12. Easements. Bidgle or successors or assigns shall obtain at its own
cost and convey in perpetuity to the City as-built non-exclusive easements, in
form acceptable to the City Attorney, for water mains and lines, along with all
necessary access easements for maintenance and repair purposes
("easements"). The water main and water line easements must be large enough
to provide the City with at least ten (10) feet on either side of water mains and
lines and must specify that (1) sewer lines must be located at least ten (10) feet
from any water main or lines, and (2) other utilities must be located at least five
(5) feet away from any water main or lines. If sewer lines or other utilities are
within the distances described in (1) or (2) above as a result of a crossing of
water lines and sewer or other utility lines, the water lines may be installed with
extra measures as required by the City. Access easements, if necessary, shall
be of a size determined by the City to be reasonably necessary. Each party shall
be solely responsible for any injury or damages, including costs and attorneys'
fees, to persons or property arising form its own negligent acts or omissions
occurring on any easement or resulting from its use or occupation of any
easement premises. Nothing contained, herein, however, shall constitute or
result in any waiver or diminishment of any defense or limitation available to the
City under the Colorado Governmental Immunity Act or other applicable law.
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13. Testino - Convevance- As-Built Drawinos. Upon completion of
construction, the following must be completed before the water system will be
accepted by the City and before any water is delivered pursuant to this
Agreement: (1) All new distribution and transmission mains and all associated
water lines must be tested and, upon approval of test results by the City,
conveyed (excluding individual service lines) with all necessary non-exclusive
easements to the City, free and clear of all liens and encumbrances, by
instrument in form acceptable to the City Attorney, which may be a reference to
the easement as dedicated and depicted on the final plat; (2) the financial
assurances securing performance and completion of the project pursuant to
paragraph 6 above shall be adjusted to reflect the final actual construction costs;
(3) The financial security required by paragraph 6 above to ensure the proper
condition and operation of such water system for a period of two (2) years from
the date of acceptance of the mains and lines must be in place and must reflect
the actual construction costs prior to the City's acceptance of any main or line;
(4) As-built drawings of the Project, including the water system and all other
utilities, must be provided to the City on reproducible sepias with a maximum
size of 24" x 36", and on an "auto cad disk data transfer file" tied into one (1) set
of state plane coordinates,
WATER SERVICE
14. Treated Water Service. Upon completion of construction and
acceptance of the water distribution and transmission mains, lines and
easements by the City, the City will provide treated water service to the Project
not to exceed the total number of ECUs provided for by this Agreement, provided
that the maximum volume of water the City shall be required to supply each year
shall not exceed the amount (in acre-feet) set forth in paragraph 1 above. Any
substantial change in the treated water service requirements for the Project will
require approval by the City, and amendment of this Agreement.
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The treated water to be delivered by the City pursuant to the terms of this
Agreement may be used for all lawful in-building municipal purposes and for fire
protection, swimming pools and normal and reasonable outside irrigation of
trees, lawns and gardens, as well as for irrigation of the existing soccer field.
Bidgle agrees to adopt, in a form acceptable to the City Attorney, covenants
which restrict the use of treated water delivered hereunder to no more than
3,000 square feet of lawn and garden irrigation for each single-family residence
and no more than 1,800 square feet of lawn and garden irrigation for each
town home. All such irrigation shall be by drip or sprinkler irrigation means and
no more than 482,400 square feet total (including the soccer field) shall be
irrigated for the entire Project. Notwithstanding the foregoing, all water use will
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be consistent with the City's Water Policy Resolution (Resolution No.5, (Series
of 1993), as amended), and water conservation ordinances.
15. Raw Water Service. The City may elect to provide raw water for
irrigation purposes to the Project, although it has no present means or plans to
do so. If the City elects to provide raw water service in the future, it shall do so in
accordance with its standard policies and procedures for providing such service.
Pursuant to such standard policies and procedures, the City will construct, at its
cost, any infrastructure necessary to deliver raw water to the Project, and will
recover the costs of such construction through its raw water rate structure. If the
City provides raw water while this Agreement is in full force and effect, Bidgle
understands and agrees that the City shall be the sole provider of raw or treated
water for irrigation pursuant to this Agreement, unless this Agreement is
amended. Bidgle, its assigns and successor and any owner or user of the
Project further agree to not develop or utilize independent raw water systems
andlor water rights or wells within the Project, so long as this Agreement is in full
force and effect, unless this Agreement is amended.
('- If the City determines that raw water can be provided for irrigation of
common open spaces andlor recreational areas, Bidgle or assigns shall agree to
a restriction, acceptable in form to the City Attorney, limiting the use of treated
water for irrigation of such common open spaces andlor recreational areas.
16. Tap Fees - Comoutation and Pavment: Schedulina of Taos. All tap
fees for treated water service herein provided shall be assessed utilizing the
City's prevailing applicable tap fee for Billing Area No.6 at the time of application
for a building permit for the structure for which service is sought. Tap fees will be
paid as provided in paragraph 7 above. No water service shall be provided to
any structure absent payment of the appropriate tap fee. Tap fees shall be paid
at the time of building permit issuance, or, if a structure already exists, prior to
delivery of water to that structure by the City. Physical taps shall be made as
provided in the Pretapping Agreement, the form of which is attached hereto as
Exhibit C and incorporated herein by reference.
17. Service Lines. Each service line shall be metered in accordance
with the Code. Bidgle acknowledges that all existing service lines, if any, will be
replaced in accordance with the City's design, materials and construction
specifications as more fully described in Exhibit A.
18. Limitations on Provision of Water Service. This Agreement is only
~. for the supply of treated water service as herein described and no expansion of
uses, connections or water service beyond those set forth herein and in the
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Addenda and Exhibits hereto is in any way authorized by this Agreement. The
City is not by this Agreement prejudging, certifying or guaranteeing its ability to
provide treated water service to any use or structure except as provided herein,
nor may this Agreement be used as evidence of approval of any land use
requests or as evidence of approval of water service for any land use request,
except as provided herein.
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19. Service to the Proiect is Subiect to the Citv's Charter. Code, Rules.
Reaulations and Policies. All water service provided hereunder shall be subject
to all applicable provisions of the Charter of the City of Aspen and the Aspen
Municipal Code, as well as all applicable rules, policies or regulations of the City
now in effect or as may be hereafter adopted, provided, however, that the parties
hereto agree that this Agreement shall preclude any legislative, zoning or land
use action by the City or pursuant to an initiated measure which would alter,
impair, prevent, or diminish the rights of Bidgle, its successors or assigns under
this Agreement or otherwise delay the development or use of the Project on the
Property as set forth in the Detailed Submission and Final Plat approval granted
by the Board of County Commissioners of Pitkin County by Resolution No.lJ'I--?l
as recorded with the Pitkin County Recorder's office at Reception No.
/..-1 )071..l ' except (a) with the consent of Bidgle, its successors or
assigns, or (b) upon the discovery of natural or manmade hazards on the
Property, which hazards could not reasonably have been discovered at the time
of the County approval, and which hazards if not corrected within a reasonable
time frame, would pose a serious threat to the public health, safety and welfare.
In addition, provided that such does not conflict with the terms, benefits and
obligations of the parties set forth in this Agreement, this Agreement shall not
preclude the application of ordinances or regulations which are general in nature
and are applicable to all property similarly situated for building permit issues,
including but not limited to, water service, building, fire, electrical and mechanical
codes. In this regard, Bidgle, its successors and assigns shall abide by any and
all building, fire, plumbing, electrical, water service, and mechanical codes,
unless an exemption therefrom is granted in writing.
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20. Rules Reaardina Water Use. Bidgle agrees to adopt all provisions
set forth herein as rules and regulations governing the use of water for the
Project, and agrees that this Agreement and the Addenda and Exhibits hereto
shall be recorded at Bidgle's expense as covenants running with the land and
shall be as fully enforceable for the Project as if the same were situated inside
the City. Bidgle, its assigns or successors agrees to assist the City in every
manner reasonably possible to enforce the City's ordinances, rules and
regulations made to protect purity, safety and supply of the water delivered
pursuant to this Agreement, including curtailment during times of shortage,
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elimination of any potential cross-connections and the utilization of water
conservation devices as set forth in the Code. Bidgle, its assigns or successor
also agrees to prohibit all unnecessary or unreasonable waste of water on the
Project and to make reasonable efforts to enforce such prohibition. The
unreasonable or unnecessary waste of water shall be defined as set forth in the
Code.
21. Source of Water Supply. The parties to this Agreement recognize
that the City's water supply is dependent upon sources from which the supply is
variable in quantity and quality and beyond the City's reasonable control;
therefore, no liability shall attach to the City under this Agreement on account of
any failure to accurately anticipate availability of water supply or because of an
actual failure of water supply due to inadequate runoff, poor quality, failure of
infrastructure or other occurrence beyond the City's reasonable control.
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22. No Guarantee of Water Qualitv, Quantitv or Pressure. The City
makes no promise or guarantee of pressure, quantity or quality of water supply
for any purpose, including fire suppression, except as specifically provided
herein or as is required by applicable federal, state and local laws and
regulations. The City agrees to treat its water to meet all mandatory local, state
and federal potable water standards and to exercise reasonable care and
foresight in furnishing water hereunder equal in quality to that furnished inside
the City.
23. Propertv Riahts in Water. All water furnished under this Agreement
is provided on a contractual basis for use for the Project as described in this
Agreement, and all property rights to the water to be furnished hereunder are
reserved to the City. Water service provided under this Agreement does not
include any right to make a succession of uses of such water, and upon
completion of the primary use of the water for the Project, all dominion over the
water provided reverts completely to the City. Subject to the prohibition against
waste and any other limitations on water use imposed in this Agreement, Bidgle,
its assigns or successors shall have no obligation to create any particular volume
of return flow from the water furnished under this Agreement. Bidgle, its assigns
or successors agrees to cooperate with the City in measuring and reporting
return flows to the extent such measuring and reporting are required by the
Colorado State Engineer or his agents.
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VIOLATIONS
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24. Enforcement bv the Citv. The parties to this Agreement recognize
and agree that the City has the right to enforce its rules, policies, regulations,
ordinances and the terms of this Agreement by the disconnection of the supply
of water to the offending party or connection. Additionally, in the event that
Bidgle or any user who has purchased or leased a portion of the Project violates
the rules, policies, regulations or ordinances of the City, the City shall have all
remedies available to it at law or in equity, or as provided in the Code. Without
limiting the foregoing rights and remedies, Bidgle agrees that the City may also
enforce such rules, policies, regulations or ordinances by injunction, the parties
agreeing that the damages to the City from such violations are irreparable, and
there is no adequate remedy at law for such violations. The City shall be free
from any liability arising out of the exercise of its rights under this paragraph.
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Notwithstanding the foregoing provisions of this paragraph 24, if an
individual owner or lessee within the Project (other than Bidgle) commits a
violation with regard to water delivered to his owned or leased property, only that
individual owner's or lessee's water service shall be disconnected, and
enforcement actions will be directed toward that violator and not toward those
who are not violating this Agreement.
Reciprocally, in the event the City breaches all or a portion of its
obligations under this Agreement, Bidgle, or its successors and assigns, shall
have all remedies available to them at law or in equity. Without limiting the
foregoing rights and remedies, the City agrees that Bidgle, or its successors or
assigns, may also enforce their rights by injunction, that the City agrees that the
damages from such breach are irreparable, and there is no adequate remedy at
law for such breach or breaches.
TERMINATION
25, Termination bv Aareement. Except as provided to the contrary
herein, this Agreement shall only be terminated in writing by mutual agreement
and the term of this Agreement shall continue until such termination.
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26. Termination if IIleaal. The parties agree, intend and understand
that the obligations imposed by this Agreement are conditioned upon being
consistent with the Code and with state and federal laws. The parties further
agree that if any provision of this Agreement becomes, in its performance,
inconsistent with the Code, state or federal laws, or is declared invalid, the
parties shall in good faith negotiate to modify this Agreement so as to make it
consistent with state or federal laws as appropriate, and if, after a reasonable
amount of time, their negotiations are unsuccessful, this Agreement shall
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terminate. The City agrees that its contractual obligations hereunder will not be
impaired by any amendment to the Code unless such amendment (or
impairment) is mandated by state or federal law.
ANNEXATION
27. Annexation. After final approval of the Project and vesting of
property rights in accordance with the final approvals granted by the Board of
County Commissioners of Pitkin County, and upon the request of the City, at the
City's sole discretion, Bidgle, its assigns or successor, shall petition the City for
annexation of the Project and the Property, provided such annexation is for the
entire Project and the Property to the City of Aspen at such time(s) as
determined by the City (hereinafter "Property to be Annexed"). Contiguity may
be established by the annexation of one or more parcels within the Property to
be Annexed, in a series contemplated in C.R.S. S 31-12-104(1)(a). Such
annexation(s) shall not divest or diminish any land use approvals, grants of
exemption, variances, designs, approvals or any other development rights
awarded by Pitkin County for the Project or the Property, to the extent such
approvals and rights are legally vested on behalf of Bidgle prior to annexation to
the City. The owners of the property comprising the Property to be Annexed,
upon written request, shall provide the City, within seven days of recordation of
the final plat, a list of all owners and legal descriptions of the property owned by
each such owner within the Property to be Annexed to facilitate the preparation
and recording of an Agreement to Annex. Failure of Bidgle, andlor its assigns or
successors in interest to commence annexation proceedings as herein required
shall authorize the City to commence such annexation on their behalf, in which
event the City shall charge, and Bidgle or, if and to the extent the Property to be
Annexed has been transferred, only Bidgle's successors in interest shall pay, all
costs and fees associated with such annexation. Neither any provision of this
Agreement or annexation shall require owners of the Property to be Annexed to
comply with A) any building, engineering, or design standard or Code, or
interpretation thereof, which differs from the standards or variances under which
the Project was approved by Pitkin County; and B) the provisions of Ordinance
30, Series of 1995, or any similar ordinance. In the event annexation would
result in approval, design criteria or classification which would render the Project,
or any portion of the Project, non-conforming in nature within the City, the City
shall adopt such appropriate zoning, design criteria or other regulations for the
Property to be Annexed which would render the Project, or any portion thereof
conforming. In the event of any inconsistency between the final approvals
granted by Pitkin County for the Property to be Annexed and the legislative
requirements or policies of the City, the County final approvals shall control.
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Notwithstanding annexation of all or any part of the Project, this
Agreement will remain in full force and effect.
GENERAL PROVISIONS
28. No Reaulated Public Utilitv Status. The parties agree that by this
Agreement the City does not becomes a regulated public utility compelled to
serve other parties similarly situated. Bidgle agrees that neither it nor its assigns
or successors shall at any time petition the Colorado Public Utilities Commission
to acquire jurisdiction over any water rate set by the City. The parties agree that
in the event the City is held to be a regulated public utility by virtue of this
Agreement, this Agreement shall terminate and be of no further force or effect.
29. No Waiver. Failure of a party hereto to exercise any right
hereunder shall not be deemed a waiver of any such right and shall not affect the
right of such party to exercise at some future time said right or any other right it
may have hereunder.
~ 30. Notices. All notices required to be given shall be deemed given
upon deposit in the United States mail, first class postage prepaid, properly
addressed to the person or entity to whom directed at his or its address shown
herein, or at such other address as shall be given by notice pursuant to this
paragraph. Copies of such notices shall also be sent in the same manner to the
City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611
(for the City) and Patrick & Stowell P.C., 730 East Durant Street, Suite 200,
Aspen, Colorado 81611 (for Bidgle).
31. Force Majeure. No party shall be held liable for a failure to perform
hereunder due to wars, strikes, acts of God, natural disasters, drought or other
similar occurrences outside of the control of that party.
32. Severabilitv. If any provision of this Agreement shall be or become
invalid or unenforceable, the remaining provisions shall not be affected thereby,
and each and every provision shall be enforceable to the fullest extent permitted
bylaw.
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33. Amendment: Assianment. Neither this Agreement, nor the
obligations of either party hereto, nor the right to receive water service
hereunder, may be amended or assigned without the written consent of the
parties hereto, provided, however, that construction of the water mains and lines
as approved herein will be assigned to North Forty, LLC without amendment to
this Agreement and that subsequent owners, including the North Forty
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Homeowners' Association, of any portion of the Project shall be subject to the
terms and conditions of this Agreement and shall be entitled to receive water
service pursuant to this Agreement without amendment of this Agreement.
34. Entire Aareement. Except as otherwise provided herein regarding
the 1969 Agreement, this Agreement, including its Addenda and Exhibits, shall
take precedence and control all prior written and oral agreements and
representations of the parties, and is the total integrated agreement among the
parties governing the matters provided for herein.
35. Interoretation. Titles and paragraph headings shall not be used to
alter the meaning of this Agreement.
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36. Bindina Aareement - Recordina. This Agreement is binding upon
the parties hereto, their successors and assigns, and any sale of the Project,
Block 1 or 3 of the Property, or any portion thereof shall be subject to this
Agreement as provided herein. This Agreement, including the Addenda and
Exhibits hereto, shall be recorded at Bidgle's expense with the Pitkin County
Clerk and Recorder, and shall impose covenants running with the land upon
Blocks 1 and 3 of the Property. Deeds to subsequent owners shall provide
notice of this Agreement and the obligations contained herein.
37. Governina Law: Venue: Attornevs' Fees, This Agreement and the
rights and obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Colorado. Venue for all
actions arising under this Agreement shall be Pitkin County, Colorado. In the
event legal remedies must be pursued to resolve any dispute or conflict
regarding the terms of this Agreement or the rights and obligations of the parties
hereto, the prevailing party shall be entitled to recover costs incurred in pursuing
such remedies, including expert witness fees and reasonable attorneys' fees.
38. Authorization of Sianatures. The parties acknowledge and
represent to each other 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.
39. Counteroarts. This Agreement may be signed using counterpart
signature pages, with the same force and effect as if all parties signed on the
same signature page.
r-... IN WITNESS WHEREOF, the parties have execute this Agreement the
date and year first above written.
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ATTEST:
By~M~
City Clerk
Final Version
03-03-99
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and Home Rule
City
APPROVED AS TO FORM:
~/j~
Asp n CI ttorney
BlDGlE, llC
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ATTEST: ~
~~~
By
Title:
C:\home\robinf\mail\atlach\FINALW-2.WPD
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WATER SERVICE AGREEMENT
FOR PORTION OF NORTH I=ORTY PROJECT
ADDENDUM 1
Legal Description of the real property comprising the North Forty Project:
Tract B-3, Tract 8-4 and Tract 8.5 combined, Aspen Center
in that part of NW 1/4 of Section 34, Township 9 South, Range
85 West of Sth P.M, Pitkin County, State of Colorado' more
partiCI.Ilal1y described in attached description.
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'"___._._..______.... ____..._.__uM__ _._____ ..,___..,__ ___ _....__u.,___.. ..___~_._ m
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HAR-~~~~113iDE9rl:2g:~AM AIR~e~lob~5~~SS CENTER' FI1X,NO. 9709252104
3S1EH~:3 5-762 ~-156~ 10;31A PG 2 OF ~
NO,839
Pr',3J3
~ la':I! J:e.feaed to ;in tbe C:cmi:lmmt .l8 ~ the laM ;in t1'e state of
ColcEaQg, C'clun1:y of P:LtId.n , dac:ribed lIS f~:
PAla1. A:
.'-
'1WlC1'. &-3 ~ cam3R, Qescz:il:ai as *'''''YlI:
Part gf 1m S04theast: aB-qua.rter (SEl/4) of S8:ticn 34, '1'u;m&hip 9
S:uth, ~ B5 West of the 6th P.M., desc:c'1tlEl4 as f""~:
o...,,,~ at tba ~ c:cmer of said Sect:l.cn 34;
t1'ence N=th 3'29'38" JUt, .alc:re the ~st JJne of said SB;t:I.c:n 34,
810.00 feet;
tlltol'lCa:o SCiUth 62' 50 '50B West, al.a'Ig' 1:te N::lrtll line of 1'~....."t .\2,
1,iOO.38 feet to a pomt of 'tha East right-of-way Ur& of State
IU.ghway 82; ,
't:hIWa en en angJ.etD the right of 90' ard alcIlg a cu.ne.U) 1:hB left
blM.r9 a :r:aCI1I.I.s of :1.,960.00 feet. a ClI!Int:r;8l arvle of 3- 57' SO" 811:1
a1cn.:1 said ~ .;r-ight-of-way line <In am 1ec>gth of 135.60 ~ to a
point of 't:arlgent;
t.her:al alCn;J said tl!&naent an:! &l.a'lq said ~ rtght-of-way l.tn! /Ibrth
31-07' We:it, 652.50 feet to 'the '1'X\le R>>nt of 1leg1nning;
't:he.N:::e Ncrth 58"53' East, a.lcxrJ tt. Itxth l:ilIs of TI:aCt B-2, 987.139
feet, 'tl1erQa ~ 35'34'57" Nest, 76.S7 ~ to a. po:l.nt of. c:urw'e;
U.A..e a1c:rg a. a.J.tVe to tha.1eft himn.J a :aula of 210.00 f..:!:. a
.......r......:L angle of 15"34'31." an arc length of 57.09 fest to a poUlt of
~t;
1:I'len:a aJ.cn; said tarr,;lant: Ncm:h 51" 09 '2B" west. :1.91,02 feat 'to a p;Wrt;
of Cl.IrII8: .
'then::e a1c:ng a CI.I%'./li to t:ha :d.ght hav.il1g a red1us of 420.00 fee1:, .
CIilJ)t:a]. el'lSle Of 15'16'30" an axe: length of 1.1.1.19 feet 1:0 ~ po1nt of
ta.~e.ut,
t11e1:~ North 35"52'58" Wast ala1g said t&lgIilnt 56.20 feet;
tnencB Sc:l\.I"th 58" 53' west, 875.75 fel;t to a pc,:Int CI'l the East
r:i.ght-of...way JJ.re of State Kig\'A<lay 82; , , .
1:hen::e SClu.th 31'07' IiaSt aJ.c:I'lg said East righI:-of-way l:il1e 4'76.23 fEEt
1:0 ~ Point of Begim1ng; ~ ml:.:'u ,"~ tiB fol.1Qw.:l.tg:
Ga-3, t/hic:h 1s a pe.rt: of 'the ~ ~ (SSl/4) of
SS::t:Lcn 34, '.L'otmsh1p 9 Sollth, Rarr.iJe as West of tbe 6th P.M.,
Pit:Jd,n CQunty,Stata of~, I\Ct'8 l1liIt"t1W1ar~ cb!IcdD!l:l
as folla.JS:
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BegiMills 801: 1'N ~ ~...... of tIB abaue ~ n...ct.
&-3;
theraa N:th 58" 53' E'ast a1cln; tI"a ScIlth J.jze of. '!:l.~t B-3,
1CO.OOf_t~
'l:I-en::e Nx'tIl 31'07' West, 476.23 feet \:0 a point en the NOrth
lim of saj,d 'l'nct B-3; .
(o:ntin'.led )
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Fmsr A'lfmCAN 'l'ITm INSV1WQ a::MPAN1
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rn:w::r :B-4 - ASPEN CI!:NI:ER, ~ lIS fOl1rw:
Plitt of tba ~. ~ (W/4) of Sect:I.c:n 34, '1'c:Iolnsh:lp 9
SOUth. ~ B5 west of tba 6tn l',M,. P1t:k1n CCufttril State of
COJ.onldo. llOre' part1cU1arly ~ as follCJollil:
~ at 'the ~1:l'leut ..cal&ll:' of sa:i.d Sec\:1Cn. 34. .
u__ Nclrth 3"29'38" west, alQ'V the Eas1: Una of said Sactia\ 34.
810.00 feet.
'therX:8 SQJt;b 62" SO' SO" ~t. alc:qJ 1:ha Nal::th 1.ira of 'l'alct Kl,
1,100.38 feet 'to a p;n,nt of tba f:ast nght-of-way J.inI of H:1gtMJ.y a2;
tIwx:a 01 an ~ 1::0 tl'l8 ~ of .90" and a1a'lg a ~ 1::0 tl1I left
havJnJ a ~us of 1,960.00 feet; a UIlI1L...J. arJ9le of 3"l;jJ'50" and
~ sa:l.c1 East ~-way 1.i.rII an lIRl les1gtb of 135.1SO feet; 1:0 a
smnt of tanQent;
'thenQe a1.a'lg ea1c1 tas.geld: and al.c:I'V saiel Fast :c.gJ1t-of way JJ.na !a1;b
31"07' West. 1,1.28.73 feet to the'r.l:ue l101nt of B2g:iM:ln;J:
tta,,*)brth SS"!i3' E'aSt,.~ 'tll8 North 1iM of ~~ B-3, 875.15
feet,
1:hIln:e N:xth 3S" 52'58" West. 535,05 feet:
1;.\__ Scil:th 58"53' W&st. 831.30 feet 1::0 Ii poUlt ca 'tte &\","
nsnt-o:'-way JJna of St'4t8 H1g1'My 82: '
Uleix:e bth 31" 07' Fast. e1c:lrlg sa:1Cl Eas't: r.Lght.gf-way 1J.na 533. 2()
feat to ~ R:lint of SEg:Lnn:l.rlgI except:1.r9 anlS xeservirg t:ha foJ.J.c:iW:i.n:J:
.4, M\ic:h 1SI a part; of tba SCJ.1thaU't cna-qua;rt:er (SB1/4) of
Sec:t:lCl'l34. 'lbwnsh:I.p 9 $CUth, ~ 85 west of 'the 6th P.M..
PitJc.:iA Ccu\~. Sta~ of Co1om:Jo, __ pa:rt.i.CLlJ.arly ~
III; follows: .
~ at the SCl.l'l:2Mlst c:cmu' of t2la alxwe .."'~ ~ Tract
8-4;
~ North 58"53' &\st, tU.CIlg the ~th J.it& of 'h_~ S.4.
11):). I):) feet;
tIaJ:8 l'brth 31"07' We.$'t, ~.20 _t to G paint: en the North i I
l:1pe at SEI.1I1 ~4..1. 8-4: . .
'tllerm'SClUth 58' 53' West a1CI"g 8IIiI.4 rorth Una of ~_'1; :8-4.
100.00 feet to a po:I.nt at tl'e FA5t. :r.:Lght-cf-way :una 0: Sta'te
H:i.ghkIay 82;
MAR-~~Q3iC9991.10:06AM AI~AW OrrICES I
. Co 1 'IOU rll ~Vl\l CV~IIV::SS OENTER FAX NO, 970 825 2104 NO,839 Pt,4D4
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437963 11/23/1999 09:59A ORDINANC DAVIS SILVI
24 0' 40 R 200,00 D 0,00 N 0.00 PITKIN COUNTY CO
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thlaI..oe Sc:uth 31' rn' East, aJ.c::qr EI.d 1!'aat ~-way .J.1ra
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'lW\C'r 9-5 - ASPEN C1!N.l'ER. cleScI:'.us1 as foUclws:
Part of the ~ cm-quarter (Sil/4) of Sect;l.o:I 34, 'ltlwnShip 9
Scutn, ~ 85 West of the 6th P.M., P.i.:tkin~, State of
Co1l:lI:sdg, nme particW.cly dea:::d.bel:I u t'o"OtI8:
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~ at the So.IttlrIut c;::gmer of 814 Sect:Lcn 36:
t:bea;a Ngrth 3'29'38" West, aJ.cn.J tbI J!a&t lJna of said sect:I.cn 34,
930.62 feet to tba ';rue !b1nt of Beg:b'1n1.nJ: '
'U_Q c:n an ~ to the 1efl:: of 79'03'39" d a1q 1:bi cuxva 'b:I t:te
d.gh1: i'la'nJlg a radiw of 320.00 f&at, a ..4IhL..oil. qle of 46'~'20" an
arc ler:qt:h of 262.34 feet ala1l' the East J.ine of U,..t .&-1 w a pc:dnt
of'tzll:~1
tbeOOe ~ Jjlatd tal_It R2rth 35'34'157" we.t, lI1c:IlS 1:h8 &sin: 1:lnas
of T.ir....'ts &01. B-2, an:l B-3, 609.87 feat to a smm: of cu:r;ya:
~ ~ a au."II'a '1:0 'the'lIitft l1av:1Iv . 2:11di_ of 210.00 teet, .
c:e&'l,-,al ~1e of 15'34'31" 81\ a:z:c lqtb of 51.09 feet: a.1.q the :talt
JJ.ne of 'h,,,,,t; s.-3 ':D a paint of t\lrQ8I1t;
tbu'ca alcng saici 'tallgent North 51'09'288 WIist, ~ the'Past 1ilIe of
'1'.l:'co:.t 8-3, 191.02 feat to a pa1nt of curveJ
~ a1cng ill cuzve tot:tle :dQI:lt l1lw:l.R.J a racU.\IS of 420.00 feet, a
cent:al angla of 15"16'30'" an.a= J.engin of 111..97 teat en:I ~ 1:ha
Eas-c 11ne of T....,ot B-3 toa ;aim: of tr.I;",~.t:
't'lJence Itl.rth 35" 52' 58" WlIst, e1av t:b! East 1:.l.niiIS of 'h""tIii 8-3 1n1
8-4, 591.25 feet to the N-liaost """i_ of 'l':l...-t &04:
'therx:e NQrtn sa'53' East, 220.76 :f&et;
~ SQlth 35"52.'58" SilIst, 572.90 feet 'tD a pQ1nt of CID:'oIe;
~ c:n a ClJ,t<,IB 1:10 the JefI: bav>>v a n4tus of 200.00 feet, a
CBn.tz:'al ang18 of 15'16'30" en 8Z'C lerGth of 53.32 feet'tD a po1nt of
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~ alalg se.1C! 't::al9ant Salth 51"09'28" &181;, 191.02 feet U:l B pc.i.nt
of cmw~
t1.es~ Cll\ a cu.r.re to UlB X'1gbt havil:g a ;p;Iius of 430.00 feat, a
c:ent:n1. arlSla of 15" 34'31 M en ;:g l.en:lth of 116.89 fEl!t 'tD a t:C1n~ of
1:cdl!:le.st;
t:hence alc:qJ sa:l4 tangent SCUtb. 35"34'57" Eas1:, 609.81 :fea'C'U) a p:d.nt
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\:1<<.... CI\ .. ~ to t:I'e 1eft hisv1rIg a t"'O~'. ~ 100.00 fest, III
c:ent:r:al argle of 20" 31' 14" an au: length of 35.82 He1; to a p::W1t a1 .
tt8 be UlIe of llIl1d ~ 34; . ,
tnance a1 an angle 1>> tl'e right ~ 52"36'33" iVd alalg saUl Ea61; lUle
So.1th 3"39'38" &1st, 234.73 fee1: tg that ~ of~.
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FAX NO. 970 9252104 NO.839 Pr~06
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EKecpt 1:I'Erefxan that port:I.CZ\ of Lot; U. Aspen Ai.qlort: B.lS:I.nesS
Center, as fUel! in Plat Bcx:k 4 Page l"S.
.. 1ll1iO ~ a part of Tba aea..g~ Pl.ai:er inl.:wlg i::laisn, (U.S. M:1rm:al
Oartif.i.eate to. 433), &9 Patentsi am' ~:1n Un1ted Statu
Patent ~a..d er:......~ 1, 1955, :in Sack 180 at Page 579.
fa'E; PClr:'tia\ of l'al:t:el C :!n:lYCled ;l.nMpen. AUport !u.:s:ine$s Cen:ter,
Flg, 1, fi.led in Plat Ebok 7 tit Page 79.
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26 0' 40 R 20~S:: gs~e:: NORDINANC DAVIS SILVI
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M^R_MAR, 3,19991,H1i=12I7AM ..LAW OFFICES .
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FAX NO. 970 925 2104 NO,839
WATER SERVICE AGREEMENT
FOR PORTION OF NORTH FORTY PROJECT
ADDENDUM 2
Description of Project for which Water Senlice Agreement applies:
The NORTH FORTY PROJECT consists of three (3) blocks: Block 1 for
educational facilities; Block 2 for possible future accessory commercial, or other
uses; and Block Sfor 72 residential lots which is more particularly described in
the Plat of the North Forty PUO Subdivision, which Plat is filed of record in the
Plat Book 6 0 ,at Page ,L-r -11 in the Office of the Clerk and Recorder of
Pitkin County. Colorado. A reduced copy of which is attached,
This Agreement applies to water service to Block 1 and Block 3, Water service
to Block 2 will be provided under a separate contract.
Block 1 consists of a Colorado Mountain College Campus, This non-
residential use includes an approximate 32,000 square foot building with
capability of expanding to 36,000 square feet See Exhibit B for gross water
requirements including in buih:ling use and irrigation.
BlOCk 3 consists of 72 residential units, deed restricted as "resident
occupied" units under Aspen/Pitkin County Housing Authority Guidelines. Of the
72 units, 60 will be aingle family homes, no larger than 2200 square feet and the
remaining 12 will be townhomes. See Exhibit a for grass water requirements
inCluding irrigation of soocer field,
Pitkin County approvals for the above North Forty project can be found in the
Office of Clerk and Recorder of Pitkin County at ReoeB!jon Numbers 40'157
(Resolution 96-286), 421207 (Resolution 98-SS) and l~()nl_ (Resolution 99.
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MAR MAR, 3,19991 ,10: 07AM ..LAW OFFICES
-U'-~~ IUi:. I ," ru AI~rvr;1 DUi;lIlli:.SS CENTER
FAX NO, 970 925 2104 NO,839 Pr~08
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WATER SERVICE AGREEMENT
FOR PORTION OF NORTH FORTY PROJECT
EXHIBIT A
Attached is a reduced copy of the Water Distribution System for Block 1
and Block 3 of the North Forty Project and description for installation and
materials,
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437963 11/23/1999 09,S9A ORDINANC DAVIS SILVI
28 of 40 R 200.00 D 0,00 N 0,00 PITKIN COUNTY CO
tlAR-03-99 WED 01:01 Ptl AIRPORT BUSINESS CENTER
FAX NO. 970 925 2104
P.02
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WATER SERVICE AGREEMENT
FOR PORTION OF NORTH.FORTY PROJECT
EXHIBIT B
a, Installation of the facilities as shown on exhibit A is anticipated to
take place during the summer and fall of 1999 with completion no latter than May
31,2001,
b, The estimated average gross water flow rate for the extension of
100,908 gallons per day (gpd) for the month of June (peak irrigation seasons),
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IN-BUILDING USE
Average In-Building use is estimated to be 30,494 gpd at full
development of Block 1 and Block 3. In-Building usage is based
on 350 gpd for the 72 residential units, 250 gpdfor 13 possible
ADU, 14.5 gpd for the 13 CMC employees and 10,6 gpd for 175
FTE CMC students,
Existing Uses
The existing CMC campus will be moved from the current
location to this project's location, Current consumption is
estimated to be 2,400 gpd.
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IRRIGATION
The estimated maximum treated water irrigation requirement is
72,543 gpd during the peak month of June. This irrigation rate is \ I
based on an application rateef 0,603 acre-feet/irrigated acre. The
irrigated square footage is estimated to be 482, 400 square feet.
Existing Uses
109,100 square feet ofthe estimated 482,400 square feet
is the existing soccer field which is currently being irrigated
and will continue upon completion of this project. June
consumption at the above rate is 16,400 gpd,
c. Fire flows are to be provided by the existing main line capacity
connected to the property.
d, General ...ement descriptions are graphically shown on the attached
Exhibit A,
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e. The amount of the water tap fee deposit by Bidgle is based on the
following fixture counts for a three bedroom/2 bath house for 46 lots and the
following fixture counts for 12 lots which have a cap of $200,000 on the value of
11111111111111111111111111111 111111111111I1111I11 II 1111
437963 11/23/1999 09:!9A ORDINANC DAVIS SILVI
29 0' 40 R 200,00 D 0.00 N 0,00 PITKIN COUNTY CO
MAR-83-99 WED 81:01 PM
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AIRPORT BUSINESS CENTER
FAX NO. 978 825 21QL___
EXHIBIT B
North Forty Water Service Agreement
page 2
P.83
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the home. The ECU counts were derived from the Section 25.08,090 of the
Municipal Code of the City of Aspen, The cost Of an ECU for this area is S8060
per ECU.
48 LOT~
2 baths
1 kitchen
3 bdrms
Sprinkler
Garbage Disp.
Dishwasher
Clothes washer
Total ECU
12 $75 000 LOT~
E.C.!.!.
.60
.25
,30
,30
,05
,10
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1.7
2 baths
1 kitchen
2bdrms
Sprinkler
Garb. Disp.
Dishwasher
Clothes washer
Total
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437983 11/23/1999 09:!9A ORDINANC DAVIS SILVI
30 of 40 R 200,00 D 0,00 N 0,00 PITkIN COUNTY CO
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Exhibit C
PRETAPPING AGREEMENT FOR THE NORTH 40 PROJECT
(Property Located Outside City Limits)
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This Agreement is entered into this 2"2 - day of Mam'iJ\ , 199..:L, in
Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home rule
city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and
Bidgle, LLC, a limited liability company organized under the laws of Colorado, whose address is
303E AABC, Aspen, CO 81611 (hereafter "Developer").
WITNESSETH
WHEREAS, the City owns and operates the City of Aspen water system in accordance with
the laws of the State of Colorado, and in accordance with the charter, ordinances, rules, regulations,
policies and resolutions of the City of Aspen, and this Agreement is entered into in conformity with,
and subject to, all such laws, charter, ordinances, rules, regulations, policies and resolutions; and
WHEREAS, Developer is the owner of certain real property comprising approximately 23.48
acres situated in Pitkin County, Colorado, as more particularly described in Addendum I, and
/"""'\ referred to in this Agreement as the "Subject Property"; and
WHEREAS, Developer plans to construct on the Subject Property the subdivision project
described on Addendum 2 hereto (referred to herein as the "Project"); and
WHEREAS, the Subject Property is located outside the corporate limits of the City; and
WHEREAS, Developer is party to a Water Service Agreement dated Mo.vcr.. 2:2., l Q"i'1
with the City (the "Water Service Agreement"), whereby the Developer has agreed to construct
certain water mains and lines, and the City has agreed to provide municipal water service to the
Project on the terms and conditions contained in the Water Service Agreement; and
WHEREAS, in order to avoid future road cuts and other disruption, Developer wishes to
install, contemporaneously with installation of such water mains and lines, water taps and service
lines to individual parcels within the Project; and
WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), prohibits
persons other than the City of Aspen Water Department from making taps onto its system, prohibits
making taps or installing individual service lines prior to payment of applicable utility connection
charges (tap fees), and prohibits making such taps between November 1 and April15, unless the City
has executed a written pretapping agreement permitting such taps and installations, and including
such requirements as the City deems necessary to protect its interests; and
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PRETAP OUTSIDE CITY
1111111111111111111111111111111111111111111111111111111
437963 11/23/1999 09:!9A ORDINANC DAVIS SILVI
31 of 40 R 200,00 D 0.00 N 0,00 PITKIN COUNTY CO
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WHEREAS, the City has determined that pretapping by Developer is appropriate in this case,
and that this Agreement and all covenants herein are necessary to comply with the Code and with
the City's policies and regulations;
THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the City and Developer agree as follows:
1. Water Service Agreement. The parties acknowledge that the City has contracted to
provide treated water service to the Project under the terms of the Water Service Agreement in such
quantities and to the extent therein provided so as to serve the structures and uses authorized by
Pitkin County under the approvals granted to Developer, Pursuant to the Water Service Agreement,
the City has committed to provide treated water service to the Project in an amount not to exceed 192
ECUsl,provided, however, that the maximum volume of treated water the City shall be required to
provide to the Project pursuant to the Water Service Agreement shall not exceed 80 acre-feet per
year,
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2. Pretaooing. Developer plans to construct the water transmission and distribution
mains and lines for the Project as described in the Water Service Agreement. As part of such
construction, this Agreement authorizes Developer to make individual taps2 to the mains being
constructed, and to install individual service lines on the terms an.d conditions of this Agreement,
as follows:
a. Developer must obtain a utility connection permit (tap permit) for each pretap
it desires to make. The permit and accompanying work order will state the size of the tap permitted.
The size will be determined in accordance with the anticipated use of the parcel for which the tap
is sought, including a fire sprinkler system, which is anticipated to be required for each lot. Each
parcel within the Project for which a tap is requested pursuant to this Agreement is referred to in this
Agreement as a "pretapped parcel", The service line for each tap will be the same size as the tap,
except where a fire line is required to supply a sprinkler system,
b, Developer must give the Water Department two working days notice before
making a tap or installing a service line, The City shall provide an employee to supervise the
tapping and to inspect the service line installation,
c. Developer may make all taps shown on the approved plans (Exhibit A to the
Water Service Agreement), approximately 78 taps, and may install as many service Jines as taps.
1 The Code provides for the rating of water service based on potential water demand as expressed in equivalent
capacity units <referred to herein as "ECU s ").
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2
A "tap" is dermed as the physical connection of an individual water service line to the water system.
PRETAP OUTSIDE CITY
2
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437963 11/23/1999 09:!9A ORDINANC DAVIS SILVI
32 0' 40 R 200,00 D 0,00 N 0,00 PITKIN COUNTY CO
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d,
All taps and service lines must meet the following specifications:
(1) Developer must purchase from the City Water Department or another
City-approved supplier all approved tapping saddles and corporation cocks required for installation,
If such items are purchased from the City, the purchase price will be the City's cost for such items.
(2) Developermust obtain and install, at Developer's expense, City-approved
pipe, fittings, curb valve, curb box, thaw wire and clamp, If such items are purchased from the City,
the purchase price will be the City's cost for such items, The curb valve must be a Mueller brand.
The curb box must be a one-inch Mueller brand with a rod and saddle, The thaw wire must be 4
gauge bare solid copper and must be installed from the corporation cock to the curb box, The thaw
wire shall make contact with the water line at the corporation cock only,
(3) Service lines must be a minimum of seven feet below the final grade, and
must be correctly installed, using pipe and fittings approved by the American Water Works
Association, All service lines 2" and smaller will be connected to the premises with "K" type
copper, Required bacterial and pressure tests required for main line installations will include the
service line up to and including the curb valves installed pursuant to this Agreement.
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(4) Identification tape must be laid the length of the service line a minimum
of two feet above the service line. (The tape can be obtained from the Water Department at no cost.)
(5) A common service line having a single penetration into a building will
be used for fire and domestic service. The line size for domestic service will be determined by the
size of the meter and piping on either side.
(6) Only one building or structure may be supplied by a single service line
unless the City Water Department gives advance written permission for the use of a common service
line, If a common service line is approved, the curb valve and box must be installed to enable
separate operation of each building or structure,
(7) Each service line installed in connection with this Agreement shall be
metered by the property owner or owner of the service connection, at such owner's expense, in
accordance with the Code and Water Department regulations, The City may require such owner, at
the owner's expense, to install an automated meter reading system, and cross-connection and
backflow prevention devices of the sort required by the City,
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e. All service lines and curb box locations must be mapped on the as-built drawings
that are to be provided to the City pursuant to the Water Service Agreement on reproducible sepias
with a maximum size of24" x 36", and on an "auto cad disk data transfer file" tied into one (1) set
of state plane coordinates, Each service line and curb box must be located with reference to at least
three permanent surface structures so that the location of the curb box and service line can be readily
identified on the ground, Moreover, each curb box shall be identified with a 4" by 4"blue post at
PRETAP OUTSIDE CITY
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437963 11/23/1999 09:!9A ORDINANC DAVIS SILVI
33 of 40 R 200.00 D 0,00 N 0,00 PITKIN COUNTY CO
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least three feet in height.
3, Fees, Except as provided in Paragraph 7 of the Water Service Agreement and
notwithstanding Code requirements, Developer shall not be required to pay utility investment
charges (tap fees) as a condition to pretapping pursuant to this Agreement. All utility investment
charges (tap fees) for pretapped parcels shall be assessed utilizing the City's prevailing applicable
tap fee at the time of application for a building permit for the structure for which service is sought.
Except as otherwise required in the Water Service Agreement, all utility investment charges
(tap fees), as well as any unpaid demand charges, must be paid by the owner of a pretapped
parcel in order to obtain a building permit. No water service shall be provided to any structure
absent payment of the appropriate utility investment charge (tap fee) and all unpaid demand charges.
4, Maintenance, Developer shall be responsible for maintaining the curb boxes and
service lines until water service is initiated, provided, however, that any person who owns or
acquires a pretapped parcel located within the Project shall be responsible for maintaining any
service line located on such parcel, before and after initiation of water service, and the curb box to
which the service line is connected. The City shall have no responsibility for any leakage, or damage
to or failure of the service line, curb box, corporation stop, or associated facilities.
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5, Adiustment of Bonds. Performance, payment and maintenance or warranty bonds,
or other security provided by Developer pursuant to the Water Service Agreement will be increased
if necessary to include all costs of installing and mapping the pretaps and service lines if they are
installed by Developer pursuant to this Agreement.
6. Initiation of Water Service: Abandonment of Service Line, Water service to a
pretapped parcel must be initiated within twenty years of the date the pretap is made. If water
service is not initiated within this period, the owner of the pretapped parcel must, at his or her own
cost, abandon the curb box and service line, and replace them, at the owner's cost, with fixtures
meeting the City's then-existing standards and specifications,
7. Demand Charges, "Demand charges" are charges assessed to water customers whose
property is tapped to the City's municipal water system, Owners of pretapped parcels shall be
subject to demand charges commencing two years from the date the pretap is made if water service
has not been initiated to the pretapped parcel by that date.
8. Deed Restrictions, All deeds conveying pretapped parcels shall state that the property
owner is responsible for all of the City's utility connection charges (tap fees) and demand charges
associated with the pretapped parcel, that demand charges shall be assessed to the pretapped parcel
beginning two years from the date the tap is made, and that the curb box, service line and associated
facilities must be abandoned and replaced at the owner's cost if water service is not initiated within
twenty (20) years of the date the pretap is made,
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9.
AmIexation. Pursuant to the Water Service Agreement and at the request of the City,
PRETAP OUTSIDE CITY
4
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437963 11/23/1999 09:!9A ORDINANC DAVIS SILVI
34 of 40 R 200,00 D 0,00 N 0,00 PITKIN COUNTY CO
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Developer, or its successors in interest, have agreed to the annexation of the Project. Such
annexation(s) shall not affect the Developer's obligations hereunder, or the property owner's
obligations to pay the required utility cOmIection charges (tap fees) and unpaid demand charges prior
to receiving water service,
10. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be
deemed a waiver of any such right and shall not affect the right of such party to exercise at some
future time said right or any other right it may have hereunder.
11. Notices. All notices required to be given shall be deemed given upon deposit in the
United States mail, first class postage prepaid, properly addressed to the person or entity to whom
directed at his or its address shown herein, or at such other address as shall be given by notice
pursuant to this paragraph, Copies of such notices shall also be sent in the same manner to the City
Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611 (for the City) and Patrick
& Stowell P,C" 730 East Durant, Suite 200, Aspen, CO 81611 (for Developer), Notwithstanding
the foregoing language of this paragraph 11, the notice required to be given to the City pursuant to
paragraph 2(b) of this Agreement may be given to the City Water Director in person or by telephone
during regular business hours,
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12. Force Maieure, No party shall be held liable for a failure to perform hereunder due
to wars, strikes, acts of God, natural disasters, drought or other similar occurrences outside of the
control of that party.
13. Severabilitv, If any provision of this Agreement shall be or become invalid or
unenforceable, the remainder of the provisions shall not be affected thereby, and each and every
provision shall be enforceable to the fullest extent permitted by law,
14, Amendment: Assignment. Except as provided in the Water Service Agreement,
neither this Agreement, nor the obligations of either party hereto, nor the right to receive water
service hereunder, may be amended or assigned without the written consent of the parties hereto.
15, Entire Agreement. Except as provided in the Water Service Agreement with regard
to the 1969 Agreement, this Agreement and the Water Service Agreement together supersede and
control all prior written and oral agreements and representations of the parties and form the total
integrated agreement between the parties. governing the matters provided for herein.
16, Interoretation, Neither the titles to this Agreement nor the recitals appearing prior
to paragraph 1 of this Agreement shall be used to alter the meaning of this Agreement and in the
event of a conflict, the terms and conditions of the numbered paragraphs shall govem,
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17. Binding Agreement - Recording. This Agreement is binding upon the parties hereto,
their successors and assigns, and any sale of the Project, or any portion thereof shall be subject to
this Agreement as provided herein. This Agreement and all attachments hereto shall be recorded
PRETAP OUTSIDE CITY
5
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437963 11/23/1999 09:S9A ORDINANC DAVIS SILVI
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with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land upon
all of the Project. Deeds to subsequent owners shall provide notice of this Agreement and the
obligations contained herein.
18. Governing Law; Venue; Attorneys' Fees. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in accordance with the laws
of the State. of Colorado, Venue for all actions arising under this Agreement shall be Pitkin County,
Colorado, In the event legal remedies must be pursued to resolve any dispute or conflict regarding
the terms of this Agreement or the rights and obligations of the parties hereto, the prevailing party
shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees
and reasonable attorney fees,
19, Authorization of Signatures. The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Agreement have been performed
and that the persons signing for each party have been dwy authorized to do so,
20, Counterparts, This Agreement may be signed using counterpart signature pages, with
the same force and effect as if all parties signed on the same signature page,
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IN WITNESS WHEREOF, the parties have executed this Agreement, consisting of the six
foregoing pages and this signature page, the date and year first above written,
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and
Home Rule City
BY1cU?~'.
Water Director
DE
D:\Clicnt FiJes\Aspen\Nonh Forty\pretap agreement FINAL 03-03-99.wpd
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