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Home My WebLink Aboutresolution.council.010-99 SOLUT ON NO. { o (Series of 1999) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING EXECUTION OF THE "RAW WATER AGREEMENT" WITH MOCKLIN HOMEOWNERS ASSOCIATION LLC. WHEREAS, the City Council has considered the proposed raw water agreement with the Mockdin Homeowners Association LLC, and the comments of staff; and WHEREAS, the raw water agreement has been signed by the Mockdin Homeowners Association LLC; and WHEREAS, the raw water agreement permits the City to acquire, for no additional consideration, the Mock/in Ditch water fight (upon its adjudication), and obligates the City to deliver raw water for the irrigation of up to 2.5 acres within the Mockdin Subdivision; and WHEREAS, the raw water agreement allows implementation of the City's policy of encouraging raw water irrigation; and WHEREAS, execution of the raw water agreement comports with the City's ordinances and water policies, and is in the best interest of the City; 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 determines that execution of the raw water agreement with the Mocldin Homeowners Association LLC, which permits the City to acquire the Mocklin Ditch water fight following its adjudication in the water court, and obligates the City to provide raw water to irrigate up to 2.5 acres within the Mockdin Subdivision, located within the City limits, is hereby approved, and the Mayor is anthofized to execute the raw water agreement on behalf of the City Council. IIIIIII IIIII IIIIII IIII IIIIIII II IIIIIIII III IIIll IIII IIII 429790 04/12/1999 09:46R RE$OLUTZ ORVZ$ $ZLVZ z ot ~e e sLee D e.ee N e.ee PZTKZN COUNTY CO RESOLVED, APPROVED and ADOPTED this ~day of February, 1999, by the City Council for the City of Aspen, Colorado. I, Kathryn S. Koch, duly appointed and acting C~ify 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 ~ t~ ,1999. ~ity Clerk 2 IIIIIII IIIII IIIIII IIII IIIIIII II IIIIIIII III IIIII IIII IIII 42979~ ~4/12/1999 09:46~ RESOLUTI DRVZS SZ~VI 2 e( ZO R 5Z.QO D 0.e0 N 0.00 PZTKZN COUNTY CO '6L~, ~ r" CITY OF ASPEN RAW WATER AGREEMENT This Raw Water Agreement ("Agreement") is entered into this _ day of , 1999, by and between the CITY OF ASPEN ("City"), a home rule municipality with its principal address at 130 South Galena Street, Aspen, CO 81611 and the MOCKLIN HOMEOWNER'S ASSOCIATION, LLC ("MockIin"), a Colorado limited liability company with its principal place of business at 0202 Shady Lane, Aspen CO 81611. WHEREAS, the City currently owns, operates and maintains in accordance with the laws of the State of Colorado and the Charter, Code, policies, and ordinances of the City of Aspen, Colorado, the City of Aspen water system, which includes, among other things, water rights, decrees, structures and facilities permitting delivery of raw water to various locations within and without the City limits; and WHEREAS, MockIin is a homeowners association whose members own Lots 1 - 6 of the Mocklin Subdivision; and ,~ WHEREAS, the Mocklin Subdivision is located within the City limits, and comprises Lots 1,2,3,4,5,6 and 7, according to the plat thereof recorded June 14, 1996 in Plat Book 39 at page 92 and the First Amendment to Plat recorded August 4, 1998 in Plat Book 45 at page 59, the Mocklin Subdivision being herein referred to as the "Subject Property;"and WHEREAS, MockIin owns that certain water right described as the MockIin Ditch, applied for in Case No, 96-CW-254, Water Division No, 5, State of Colorado; and WHEREAS, Mocklin is party to a License Agreement dated August 10, 1998, with the Mocklin Condominium Association ("Licensee"), which provides that MockIin will permit the Licensee to use a portion of the Mocklin Ditch for purposes of maintaining water level in a pond and providing irrigation o~ Lot 7 of the MockIin Subdivision; and WHEREAS, MockIin has agreed to convey the MockIin Ditch to the City as herein provided; and WHEREAS, in return for such conveyance, the City has agreed to provide raw water to Mocklin for irrigation, piscatorial and recreational uses on the Subject Property, as provided in this Agreement; and I""""- WHEREAS, this Agreement is entered into in conformity with and subject to the laws of the State of Colorado and the Charter, Code, policies, ordinances, rules and regulations of the City; 1111111111111111111111111111111111111111111111111111111 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 3 0' 10 R e1.00 0 0.00 N 0.00 PITKIN COUNTY CO 1'"'\ NOW THEREFORE, in consideration of the mutual promises contained herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Adiudication and Conveyance of Water Right Mocklin agrees that, upon obtaining adjudication of the Mocklin Ditch, it will convey said water right to the City, without further consideration, free and clear ofliens and encumbrances, by bargain and sale deed. 2. License Agreement Mocklin will obtain the consent of Licensee Mocklin Condominium Association to this Raw Water Agreement. Said consent shall contain Licensee's acknowledgment that the Licensee's rights under the License Agreement dated August 8, 1998 are subject to this Raw Water Agreement, and that Licensee shall not have any rights against the City pursuant to either the License Agreement or this Agreement. 3. Provision of Raw Water. Upon conveyance of the Mocklin Ditch to the City, the City agrees, subject to the provisions of this Agreement, to provide to Mocklin raw water for irrigation, piscatorial and recreational purposes on the Subject Property. Said water shall be provided in the amounts reasonably required for reasonable piscatorial, recreational and irrigation uses, without waste, on the Subject Property, with a maximum irrigated acreage not to exceed 2.5 acres, and l:IjHe a maximum water delivery not to exceed 0.4 cfs, provided, however, that the City shall not be required to provide water hereunder at such times as, and to the extent that, water is not legally and physically available in priority to the Mocklin Ditch water right at the ~ decreed point of diversion. The parties understand and agree; that water requirements of the Subject Property may not consistently be 0.4 cfs, and that the City's obligation hereunder is to provide an adequate supply of water to meet reasonable irrigation, piscatorial, and recreational needs, without waste, on the Subject Property, with a maximum delivery commitment not to exceed 0.4 cfs. The City's obligation to furnish water shall be fulfilled by delivery of water in the Mocklin Ditch at the point said ditch enters the Subject Property. The City shall be responsible for operation, maintenance, repair and replacement of all structures and facilities necessary to deliver water to such location. 4. below. Term. This Agreement shall continue until tertninatedas provided in paragraph 13 I""""- , 5 . Water Supply. It is expected that the MockIin Ditch will be used to provide water to the Subject Property, but the City may, in its discretion, provide sufficient water from anyone or more of the water rights now owned or hereafter acquired by the City that may be lawfully used for irrigation, piscatorial and recreation purposes on the Subject Property. Ifwater is supplied from sources other than the source of water supply for the Mocklin Ditch, the City shall use reasonable care to assure that such substituted water is of a quality so as to meet the irrigation, recreation and piscatorial uses to which the Mocklin Ditch has normally been put. 6. Payment. Mocklin shall pay an annual charge for the delivery of raw water, based 1111111111111111111111111111111111111111111111111111111 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 4 0' 10 R 81.00 0 0.00 N 0.00 PITKIN COUNTY CO r'", on the City's generally applicable raw water delivery rates in effect at the time the water is delivered each season, and shall be billed to MockIin by June 30 of each year for the current irrigation season. Payment shall be made to the City within 60 days of the billing date. 7. Water Use by Mocklin. The water provided to MockIin under this Agreement shall be used by Mocklin for irrigation, without waste, of no more than 2.5 acres on the Subject Property. The water may also be used to fill the existing small pond (not to exceed 1.0 acre-foot) presently located on the Subject Property, provided. however, that if the water commissioner or other agent of the State of Colorado responsible for enforcement of water rights advises Mocklin, the City, or anyone using water from the Mocklin Ditch on the Subject Property that such water may not be stored in the existing pond in the absence of a storage right or other storage decree, Mocklin shall immediately comply with any request or order of the water commissioner or other agent of the State of Colorado, and the City shall have no obligation to provide any water to Mocklin if and to the extent diversions under the Mocklin Ditch have been curtailed. No water shall be used outside the boundaries of the Subject Property. The City's obligation to furnish water shall be fulfilled by delivery of the water to the boundary of the Subject Property. Mocklin shall be solely responsible for the cost of constructing, cleaning, operating, maintaining, repairing and replacing all ditches, laterals, wells, sprinklers, and other structures and facilities which enable use of the water on the Subject Property after it is delivered by the City. Mocklin shall also be responsible for compliance with the License Agreement with the Mocklin Condominium Association, and any other water supply f"'"', agreements to which it may be party. 8. No Right to Store. Reuse or Successively Use Water. Except as herein provided, Mocklin shall have no right to store, reuse or make a succession of uses of the water provided pursuant to this Agreement. Mocklin agrees that it does not, by this Agreement, acquire any interest in water rights owned or controlled by the City, and that any claims it may have with respect to the delivery of water hereunder are strictly contractual rights as provided in this Agreement. The City specifically reserves the right to reuse, to the extent permitted by law, the water which is delivered to the Subject Property hereunder. The City may apply to the water court for permission to store, reuse or successively use, or otherwise change any of its water rights so long as the City remains able to fulfill its delivery commitment hereunder. Mocklin shall not oppose any such water application on the ground that this Agreement prohibits or limits such application. 9. Suspension of Water Delivery. The City shall not be liable for failure to deliver water by reason of any unanticipated water main or line break or ditch structure breakdown or other unanticipated structural conditions which prevent or curtail delivery, or any emergency disruption of City water facilities. The City shall maintain and repair the MockIin Ditch and associated structures in accordance with its maintenance program and shall use its best efforts to resolve any emergency situation, and to repair or replace, as necessary, any water main, line, ditch 1""""'. or structure as soon as reasonably possible to assure resumption of water deliveries to the Subject Property as soon as reasonably practicable following an emergency. Alternatively, the City may, I I!IIII 11111111111 1111 1111111 II 11111111 III 11111 1111 III I 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 8 0' 10 R 81.00 0 0.00 N 0.00 PITKIN COUNTY CO I""""- at its option, deliver water to the Subject Property from other sources or locations. The delivery of water under this Agreement shall also be subject to interruption for the purpose of cleaning, maintenance or repair of ditches, laterals or other structures or facilities which the City is required to clean, maintain and repair, provided that the City shall use reasonable efforts to undertake such cleaning, maintenance and repairs between November 1 and March 31. If, in the City's reasonable judgment, such cleaning, maintenance or repairs must be undertaken during the irrigation season, and if such activities will result in suspension of water deliveries to Mocklin for more than 24 hours, the City shall give Mocklin five business days prior written notice of its plans. The City shall complete such cleaning, maintenance or repairs promptly, and with as li~le loss in delivery to the Subject Property as is reasonably practicable under the circumstances. In addition, the City may suspend delivery of water under this Agreement in accordance with Chapter 25.28 of the Aspen Municipal Code (or any modifications, revisions or re-enactments thereof), which provides for curtailment of water use by treated water customers in the event the City Council determines that the City is facing a shortage in its supply of water. Although said ordinance applies to curtailment of treated water supplies, the parties agree that implementation of this ordinance by the City Council shall also authorize curtailment of the Mocklin Ditch as to prohibited uses set forth in the ordinance during the time of shortage, and the penalties for violation thereof shall be applicable to Mocklin. f""". 10. Indemnification. As partial consideration for the rights granted to Mocklin by the City under this Agreement, Mocklin agrees to indemnifY the City and hold it, its officials, agents and employees, harmless from any and all losses, injuries or claims of any kind whatsoever, including all costs of defense and attorneys fees, that may arise from Mocklin's use of the water delivered hereunder on the Subject Property, or the operation, maintenance, repair, rehabilitation or replacement of structures or facilities used by or in connection with, or relating to the Mocklin Ditch, by MockIin or its agents, employees, or contractors, on or off of the Subject Property. Mocklin shall obtain and maintain general liability insurance with carriers authorized to do business in Colorado, which insurance shall have limits reasonably acceptable to the City, shall name the City as an additional insured to the extent ofMocklin's indemnification obligations hereunder, and shall provide that the City shall be given thirty (30) days notice of cancellation or tertnination of such insurance. A certificate evidencing such insurance shall be provided to the City upon request. At no time shall anything contained within this Agreement be considered or interpreted to waive or diminish, in whole or in part, the rights or limitations bestowed upon the City by the Colorado Governmental Immunity Act, C.R.S. S 24-10-101, et seq., as amended, or any other law, nor shall the indemnification obligation hereunder cover claims or losses or damages for which the City would not be liable, should this indemnification provision not have been in existence. 11. Water Ouality. Mocklin acknowledges that the water provided by the City under this Agreement is untreated water that will be diverted directly from the Cowenhoven Tunnel, or I""""- streams or wells, and delivered without any treatment to the Subject Property, and that the City makes no guarantees or representations concerning the quality of the water provided, or its fitness 1111111111111111111111111111111111111111111111111111111 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 6 0' 10 R 81.00 0 0.00 N 0.00 PITKIN COUNTY CO r" for the uses to which it is put. Ifwater is supplied to Mocklin from sources other than the source of water supply for the Mocklin Ditch,. the City shall use reasonable care to assure that such substituted water is of a quality so as to meet the irrigation, recreation and piscatorial uses to which the Mocklin Ditch has normally been put. 12. Obligations Consistent with Law. The parties agree, intend and understand that the obligations imposed by this Agreement are only such as are consistent with state and federal law. The parties further agree that if any provision of this Agreement becomes, in its performance, inconsistent with state or federal law or is declared invalid, the parties shall either tertninate this Agreement or in good faith negotiate to modifY the Agreement so as to make it consistent with the state or federal law, as the case may be. 13. Termination. Except as provided to the contrary herein, this Agreement shall only be tertninated in writing, signed by the parties (or, as appropriate, their successors in interest) and the term of this Agreement shall continue until such termination. This Agreement shall terminate, and be of no further force and effect, if any of the following conditions occur: a. a water court decree for the MockIin Ditch is not obtained within a reasonable time; r--. b. a water court decree is entered which does not allow the Mocklin Ditch to be used as requested in the pending application in Case No. 96 CW 254; c. the water that supplies the Mocklin Ditch is decreed nontributary; or d. if, in the City's reasonable judgment, any stipulations or the decree entered in Case No. 96 CW 254, render delivery of water to Mocklin by the City pursuant to this Agreement physically or legally impossible, unreasonably difficult, or unreasonably expensive. I""""- 14. Default. In the event either party defaults in the performance of this Agreement, other than the obligation to make payment for raw water delivered, the nondefaulting party shall advise the other party in writing of such default. The defaulting party shall have thirty days from the date of such notice within which to cure the default. In the event the default cannot reasonably be cured within such thirty-day period, the defaulting party shall so advise the other party in writing, and shall advise of the date by which the default can reasonably be cured. In such case, the defaulting party sball commence cure within the original thirty-day period, and shall proceed with diligence to complete the cure. The non-defaulting party may, at its option, terminate this Agreement if the default is not cured within said thirty-day period, or, if the non-defaulting party has been advised as provided in this paragraph that the default cannot reasonably be cured within the thirty-day period, the non-defaulting party may, at its election, tertninate this Agreement if reasonable steps to cure the default are not commenced within the thirty-day period, or if the default is not timely cured by the date for completion of cure specified by the non-defaulting party. 1111111111111111111111111111111 111111111111111111111111 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 7 0' 10 R .e1.00 0 0.00 N0.00 PITKIN COUNTY CO I""""- IfMocklin defaults by failing to make payment for raw water when due, the City may, in addition to other remedies available to it, terminate raw water service to the Subject Property until payments (including any applicable interest and late charges) are current. Notwithstanding the foregoing, if any default occurs and is not cured as provided for herein (if it is a default that may be cured pursuant to this paragraph), the non-defaulting party shall have available to it all remedies at law or equity. 15. No Waiver of Rights or Remedies. Failure ofa party hereto to exercise any right or remedy hereunder shall not be deemed a waiver of any such right or remedy and shall not affect the right of such party to exercise at some future time said right or remedy or any other right or remedy it may have hereunder. 16. Notice. All notices required to be given hereunder shall be in writing, and shall be deemed given upon deposit in the United States mail, certified mail, return receipt requested, postage prepaid, properly addressed to the party to whom directed at its address shown below or at such other address as may be given by notice pursuant to this paragraph: City of Aspen r". Water Director, City of Aspen 130 South Galena Street Aspen, Colorado 81611 cc: City Attorney City of Aspen 130 South Galena Street Aspen, Colorado 81611 Mocklin Mocklin Homeowners Association LLC 0202 Shady Lane Aspen CO 81611 cc: Arthur C. Daily, Esq. Holland and Hart LLP 600 East Main Street Suite 104 Aspen, Colorado 81611-1953 17. Force Maieure. No party shall be held liable for failure to perform hereunder due to wars, strikes, acts of God, natural disasters, drought or other similar occurrences outside of the I""""- control of such party. 1111111 11111 11111111111111111 II 11111111 III 11111 IIIIIIIIH 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 8 0' 10 R .81.00 0 0.00 N 0.00 PITKIN COUNTY CO " ,~ ; 18. Assignment. This Agreement may not be assigned without the written consent of the other party hereto, which consent shall not be unreasonably withheld. 19. Entire ~eement. This Agreement (including the exhibit) constitutes the total integrated agreement among the parties regarding the subject matter hereof, and supersedes and controls all prior and contemporaneous written and oral agreements and representations of the parties. 20. Authority of Signatories. By signing this Agreement, the parties acknowledge and represent to one another that all procedures necessary to validly contract and execute this Agreement have been performed and that the persons signing for each party have been du1y authorized to do so. 21. Intelpretation of Agreement. Neither the titles to this Agreement and its paragraphs, 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 govern. 22. Bindin~ Agreement: Recording; Covenant. This Agreement is binding upon the parties hereto, their successors and assigns. This Agreement shall be promptly recorded by the City, and shall constitute a covenant running with the Subject Property. f""". 23. Litigation. In the event either party is required to take legal action to enforce its rights under this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees. The parties agree that the forum for any such litigation shall be the Pitkin County District Court. 24. Countelparts. 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. IN WITNESS WHEREOF, the parties hereto set their hands on the day and year above first written, Attest: CITY OF ASPEN i~) yfj/k1{ City Clerk r ~ASSOCIATION'ILC Its: ~~ I S;1e9~ 0 ~~ 1111111111111111111111111111111111111111111111111111111 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 9 0' 10 R 81.00 D 0.00 N 0.00 PITKIN COUNTY CO ~ /"'" ,!"""\ STATE OF COLORADO 'I-<<I-.Q) ) ) ss. COUNTY OF Pf'fIClN ~ ) J SUBSCRIBED,.,ANI) SWORN to before me this ~ day of by ~.&/~~ , Mocklin Homeowner's Association, LLC u , 1991. of WITNESS my hand and official seal. JANIE M BRANAN Notary Pub;ic Slate of Texas My Commission Expires June 30, 2000 My commission expires: D:\Clie:nt FiIes\Aapen\MOeklinww wafer 3.wpd ~.:r~-, 1"'" /1H:1j,) , .Q~ In Ifz~-.J y'ijOt~ Public ;\: .~ it:; i.'" ,-"~ ....\ to":, . '" ,\, , ,fj !..J"'" t .'" (' ,- " " '_..H }....,. I. .: t, <: ~.: 1I~ .. "- ,",,'.,:, ~. ~ ~""~' . .J~o .' .. _. ~. _, II I ..,' , ., ~ .' ;,,,,, .) ,;. 1';- .,,~).,\ .. ..... ".." '-,,( ~ ~ ;~.J : ",;!4.. 1111111111111111111111111111111111111111111111111111111 429790 04/12/1999 09:46A RESOLUTI DAVIS SILVI 10 0' 10 R 81.00 0 0.00 N 0.00 PITKIN COUNTY CO