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HomeMy WebLinkAboutresolution.council.031-94 e tit Ill. .. ~/ A'. RESOLUTION NO.~ Series of 1994 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE BETWEEN ERNST KAPPELI AND THE CITY OF ASPEN FOR THE USE BY THE CITY OF ASPEN OF WATER FROM THE ASPEN DITCH AND WATER RIGHT FOR PARK IRRIGATION. WHEREAS, Ernst Kappeli claims ownership of the water right known as the Aspen Ditch and Water Right, Number 451, Priority No. 640, decreed absolute for 3.0 cfs from the Roaring Fork River, in Pitkin County, Colorado ("the Water Right"); and, WHEREAS, Ernst Kappeli has offered to lease water from the Water Right to the City of Aspen for use in irrigating city property, at an annual rental of $10.00; and, WHEREAS, the Parks Department has determined that the availability of water from the Water Right would be beneficial for the irrigation of City property; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves the Water Lease between Ernst Kappeli and the City of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or the City Manager of the City of Aspen to execute said lease on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspel1 on the ~ day of ~) , 1994. ~ J: IY_~ ohn S. Bennett, Mayor ~ ,., @- I, 11, 't<.. ~, '. I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregqing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kath ('1A, 'w e, , '"-,,, .- ~t '\1" -~- .'- ':;~~':}l~I~t:~. WATER LEASE THIS WATER LEASE is dated ~ .;:1.~ between the City of Aspen, c/o City Manager, 130 Street, Aspen, Colorado 81611 (-Aspen"), and Ernst King Street, Aspen, Colorado 81611 (-Kappeli") ,199.:i_, South Galena Kappeli, 925 WHEREAS, Kappeli owns the water right known as The Aspen Ditch and Water Right, Number 451, Priority No. 640, decreed absolute fOr 3.0 cfs of water from the Roaring Fork River, in Pitkin County, Colorado; and WHEREAS, Aspen wishes to lease from Kappeli a portion of the water decreed to the Aspen Ditch and Water Right for irrigation of parks, and other beneficial purposes; and WHEREAS, Kappeli is willing to make said water available to, Aspen for these purposes on the terms and conditions set forth in this Lease. NOW, THEREFORE, in consideration of the promises set forth below, the parties agree as follows: 1. Subject matter of Lease. Kappeli grants to Aspen the exclusive and perpetual right to use a portion of the legally available water decreed to The Aspen Ditch and Wa'ter Right for irrigation and such other beneficial uses as Aspen chooses to make of this water. Said water is referred to in this Lease as the '''leased water". 2. Representations of Kappe~i. Kappeli represents that he is the sole owner of the water right known as the -Aspen Ditch and Water Right", described above, that he owns or has full legal right to use, the ditches, headgates, flumes, laterals and any other structures which carry this water right, and that he has full right and power to enter into this Lease and to perform his obligations hereunder. 3. Term. The term of this Lease shall be for one (1) year, commencing November 1, 1993, and running until October 31, 1994, provided, however, that this Lease shall be automatically renewed from year to year until terminated by either party as provided in paragraph 8. 4. Quantity, P~ace of De~ivery, Quality. Kappeli agrees to deliver the leased water to Aspen at the southwest corner of Kappelir s property on Queen Street at such times as, and to the extent that, The Aspen Ditch and Water Right is in priority. Aspen understan~s that the quantity of water that may be available at any given time fA ., &,,0_,' ", \~ tlt depends on the amount of water legally available to The Aspen Ditch and Water Right, and that Kappeli does not guarantee that any particular quantity of water can be provided to Aspen. Kappeli agrees not to take any action to cause deterioration of the quality of the leased water, but makes no representations or guarantees as to the quality of the leased water. 5. Lease Payments. As payment for the leased water, Aspen will reimburse to Kappeli $lD per year. Kappeli shall make reasonable efforts to perform cleaning, maintenance and repairs (or to have them performed) at times and in a manner which will not interfere with Aspen's use of the leased water. 6. C~eaningr Maintenance and Repairs. Kappeli shall u~e reasonable discretion to determine what cleaning, repairs, and maintenance are reasonably required to properly operate the ditch and its laterals, structures, and facilities to deliver the leased water to Aspen, and, subject to paragraph 5 above, Kappeli shall determine the timing of such cleaning, repairs and maintenance. Aspen shall be entitled to rely on Kappeli's representation that needed cleaning, repairs and maintenance have been completed properly. Kappeli will indemnify Aspen and hold it harmless from any claims, costs, injuries or losses (including attorneys fees) for which Aspen may be held liable as a result of Kappeli's failure to make or complete such repairs and maintenance, or any negligence in such repairs or maintenance. 7. Transportation and Use of Water After De~ivery. Aspen shall pay all costs and expenses associated with transporting and utilizing the leased water after it is delivered to the point of delivery. In addition, Aspen will be solely responsible for the construction, operation, maintenance and repair of the facilities it utilizes to take the water from the delivery point to its place of ultimate use. and Kappeli shall have no responsibility for any condition of the structures owned and operated by Aspen. 8. Termination. This Lease may be terminated by either party upon thirty (3D) days prior written notice to the other. If this Lease is terminated prior to the expiration of the initial term, or during any succeeding one-year term, Aspen shall pay as lease payment for the year of termination the percentage of the lease payment (as described in paragraph 5 above) that equals the percentage of the one-year lease term that has elapsed prior to termination. Upon termination, Aspen shall disconnect its delivery system from the point of delivery. After termination, all structures belonging to Kappeli shall continue to be owned by Kappeli, and all structures owned or constructed by Aspen shall continue to be owned by Aspen. 9. Permissive Use; Non-abandonment. Aspen acknowledges and agrees that its right to use the leased water does not give it any ownership right in The Aspen Ditch and Water Right, the Molly Gibson Ditch. the Molly Gibson No.2 Shaft Ditch Extension, or any e'" " ~~" ~" ~- I'e >:& " \~~- - ditches or other appurtenances which deliver the leased water to the delivery point. Moreover, the parties acknowledge that Kappeli does not, by execution or performance of this Lease, abandon or transfer any of his right, title or interest in and to the Aspen Ditch and Water Right, the Molly Gibson No. 2 Shaft Ditch and Pipeline or the Riverside Ditch. 10. Water Court Proceedings. If any water court action or other proceeding is required to confirm or change Kappeli's water right in order to deliver the leased water, such actions or proceedings will be Kappeli's sole responsibility. This Lease shall automatically terminate in the event Kappeli is unable to legally provide the water herein leased, and, upon termination, Aspen shall have the payment obligation described in paragraph 8 above. 11. Notices. All notices required to be given under this Lease shall be in writing and shall be deemed given upon delivery, or upon deposit in the United States Mail, postage prepaid, properly addressed to the party at its address shown above, or at such other address as may be given by notice pursuant to this paragraph, and a copy of such notices shall also be sent to the City Attorney, City of Aspen, 130 South Galena, Aspen, CO 81611. 12. Force Majeure. No party shall be held liable for failure to perform under this Lease as a result of war, strikes, acts of God, natural disasters, drought or other similar occurrences outside of the control of the parties. 13. Assignment. This Lease may not be assigned by either party without the prior written consent of the other. 14. Attorneys' Fees. If either party incurs costs or leg",l fees to enforce its rights under this Lease, the prevailing party shall be entitled to reasonable attorneys, fees and costs. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year first above written. CITY OF ASPEN ATTEST: BY~ City Cler ) )d~_ By ~ May r 7, > ~- (~~ . ~--:L~~ Ernst Kappeli tit e e.., ill ~ WATER LEASE THIS WATER LEASE is dated ~,c::::r-s- ,199L_, between the City of Aspen, c/o City Manager, 130 South Galena Street, Aspen, Colorado 81611 (ftAspen"), and Ernst Kappeli, 925 King Street, Aspen, Colorado 81611 (ftKappeli") WHEREAS, Kappeli owns the water right known as The Aspen Ditch and Water Right, Number 451, Priority No. 640, decreed absolute for 3.0 cfs of water from the Roaring Fork River, in Pitkin County, Colorado; and WHEREAS, Aspen wishes to lease from Kappeli a portion of the water decreed to the Aspen Ditch and Water Right for irrigation of parks, and other beneficial purposes; and WHEREAS, Kappeli is willing to make said water available to Aspen for these purposes on the terms and conditions set forth in this Lease. NOW, THEREFORE, in consideration of the promises set forth below, the parties agree as follows: 1. Subject matter of Lease. Kappeli grants to Aspen the exclusive and perpetual right to use a portion 'of the legally available water decreed to The Aspen Ditch and Water Right for irrigation and such other beneficial uses as Aspen chooses to make of this water. Said water is referred to in this Lease as the '\\ leased water". 2. Representations of Kappeli. Kappeli represents that he is the sole owner of the water right known as the ftAspen Ditch and Water Right", described above, that he owns or has full legal right to use, the ditches, headgates, flumes, laterals and any other structures which carry this water right, and that he has full right and power to enter into this Lease and to perform his obligations hereunder. 3. Term. The term of this Lease shall be for one (1) year, commencing November 1, 1993, and running until October 31, 1994, provided, however, that this Lease shall be automatically renewed from year to year until terminated by either party as provided in paragraph 8. 4. Quantity, Place of Delivery, Quality. Kappeli agrees to deliver the leased water to Aspen at the southwest corner of Kappeli(s property on Queen Street at such times as, and to the extent that, The Aspen Ditch and Water Right is in priority. Aspen understands that the quantity of water that may be available at any given time e' z\ "'_. e; " \ '-'- e" '\ 'i\,< depends on the amount of water legally available to The Aspen Ditch and Water Right, and that Kappeli does not guarantee that any particular quantity of water can be provided to Aspen. Kappeli agrees not to take any action to cause deterioration of the quality of the leased water, but makes no representations or guarantees ~s to the quality of the leased water. 5. Lease Payments. As payment for the leased water, Aspen will reimburse to Kappeli $10 per year. Kappeli shall make reasonable efforts to perform cleaning. maintenance and repairs (or to have them performed) at times and in a manner which will not interfere with Aspen's use of the leased water. 6. C~eaning, Maintenance and Repairs. Kappeli shall use reasonable discretion to determine what cleaning, repairs, and maintenance are reasonably required to properly operate the ditch and its laterals, struct~res, and facilities to deliver the leased water to Aspen, and, subject to paragraph 5 above, Kappeli shall determine the timing of such cleaning, repairs and maintenance. Aspen shall be entitled to rely on Kappeli's representation that needed cleaning, repairs and maintenance have been completed properly. Kappeli will indemnify Aspen and hold it harmless from any claims, costs, injuries or losses (including attorneys fees) for which Aspen may be held liable as a result of Kappeli' s failure to make or complete such repairs and maintenance, or any negligence in such repairs or maintenance. 7. Transportation and Use of Water After De~ivery. Aspen shall pay all costs and expenses associated with transporting and utilizing the leased water after it is delivered to the point of delivery. In addition, Aspen will be solely responsible for the construction, operation, maintenance and repair of the facilities it utilizes to take the water from the delivery point to its place of ultimate use, and Kappeli shall have no responsibility for any condition of the structures owned and operated by Aspen. 8. Texmination. This Lease may be terminated by either party upon thirty (30) days prior written notice to the other. If this Lease is terminated prior to the expiration of the initial term, or during any succeeding one-year term, Aspen shall pay as lease payment for the year of termination the percentage of the lease payment (as described in paragraph 5 above) that equals the percentage of the one-year lease term that has elapsed prior to termination. Upon termination, Aspen shall disconnect its delivery system from the point of delivery. After termination, all structures belonging to Kappeli shall continue to be owned by Kappeli, and all structures owned or constructed by Aspen shall continue to be owned by Aspen. 9. pexmissive Use; Non-abandonment. Aspen acknowledges and agrees that its right to use the leased water does not give it any ownership right in The Aspen Ditch and Water Right, the Molly Gibson Ditch, the Molly Gibson No.2 Shaft Ditch Extension, or any ~ ~.' $ '0< ~.I, ~ , ditches or other appurtenances which deliver the leased water to the delivery point. Moreover, the parties acknowledge that Kappeli does not, by execution or performance of this Lease, abandon or transfer any of his right, title or interest in and to the Aspen Ditch and Water Right, the Molly Gibson No. 2 Shaft Ditch and Pipeline or the Riverside Ditch. 10. Water Court Proceedings. If any water court action or other proceeding is required to confirm or change Kappeli's water right in order to deliver the leased water, such actions or proceedings will be Kappeli's sole responsibility. This Lease shall automatically terminate in the event Kappeli is unable to legally provide the water herein leased, and, upon termination, Aspen shall have the payment obligation described in paragraph 8 above. 11. Notices. All notices required to be given under this Lease shall be in writing and shall be deemed given upon delivery, or upon deposit in the United States Mail, postage prepaid, properly addressed to the party at its address shown above, or at such other address as may be given by notice pursuant to this paragraph, and a copy of such notices shall also be sent to the City Attorney, City of Aspen, 130 South Galena, Aspen, CO 81611. 12. Force Majeure. No party shall be held liable for failure to perform under this Lease as a result of war, strikes, acts of God, natural disasters, drought or other similar occurrences outside of the control of the parties. 13. Assignment. This Lease may not be assigned by either party without the prior written consent of the other. 14. Attorneys' Fees. If either party incurs costs or legal fees to enforce its rights under this Lease, the prevailing party shall be entitled to reasonable attorneys, fees and costs. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year first above written. CITY OF ASPEN ATTEST: "~ City Cler xI~ - By ~ 5'. e;~- May C /L~ Ernst, Kappeli