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HomeMy WebLinkAboutresolution.council.045-94 .". "(;;:! . ~ r .- --'"'~ 11II RESOLUTION NO. 1:5 Series of 1994 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING AN AGREEMENT ALLOWING CONSTRUCTION OF A PRIVATE WELL FOR RAW WATER IRRIGATION AND GRANTING TO THE CITY THE RIGHT TO CONSTRUCT A MUNICIPAL WELL WHEREAS, David H. Koch is the owner of certain real property in the City of Aspen; and, WHEREAS, ; and David H. Koch desires to obtain raw water service from the City of Aspen; and, WHEREAS, The City of Aspen is unable to deliver raw water to the Koch property through any of its existing facilities; and, WHEREAS, David H. Koch is willing to convey to the City of Aspen the right to construct a municipal well on his property in exchange for consent by the City of Aspen to the construction of a well to supply raw water service to the Koch property; and, , WHEREAS, The City is willing to allow Mr. Koch to construct and operate a well in exchange for the conveyance of the right to construct a municipal well; and, WHEREAS, The City of Aspen and Mr. Koch have negotiated an agreement providing for the construction of a well by Mr. Koch in exchange for the grant to the City of the right to construct a municipal well; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: 1. The Agreement between the City of Aspen and David H. Koch, in the form attached hereto as Exhibit A and incorporated herein by this reference, is hereby accepted and approved. The City Manager is hereby authorized and directed to execute said agreement on behalf of the . ----."- . ta \'" -- City of Aspen, and to perform all necessary or appropriate acts to carry out the terms of said agreement. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the /.3 day of ?~~ , 1994. y'~ 7~ (.::? ~ ~~~Z . J hn S. Bennett, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. iga.rcs \fA '. <It fA. "II' 3!~ AGREEMENT This Agreement between the City of Koch ("Koch"). is made the 1:3 day of .Jl..Lf\A- , 1994, Aspen, Colorado ("the City") and David H. Whereas, Koch owns real property located at 835, 855, and 865 Roaring Fork Road, Aspen, Colorado and more specifically described as Lots 9, 10 and 16, the Second Aspen Company Subdivision, according to the plat recorded as Document No. 12664 in the office of the Clerk and Recorder of Pitkin County, Colorado ("the Koch Property"); and, Whereas, the City owns and operates a municipal water utility and requires dedication of water rights and wells owned by customers receiving water service from the City; and, Whereas, Koch desires to construct a well on the Koch Property adjacent to Roaring Fork Road ("the wellsite") to provide raw water for use for irrigation and ornamental purposes on the Koch Property; and, Whereas, the City desires to obtain the right to construct and operate in the future a municipal well at the wellsite; Therefore, in consideration of the mutual promises, covenants, and obligations set forth herein, the City and Koch agree as follows. 1. Well Construction. A. City Consent. The City consents to the construction of a well ("the Well") and related pump, having a capacity of not more than 30 gallons per minute and maximum annual diversions of not more than 11 acre-feet, at the location shown on the attached survey, which is incorporated herein as Exhibit A. The construction and equiping of the Well shall be at the sole cost and expense of Koch. B. Required Permits. Prior to construction of the Well, Koch shall obtain an excavation permit from the Public Works Department of the City of Aspen, and comply with all the requirements of said permit. Koch shall also obtain all other required City permits and approvals for the construction of the Well and all related or ancillary improvements and facilities. The Well shall be drilled by a well driller licensed by the State of Colorado. C. Well Design. Koch will deliver to the Water Department a complete set of all plans and specifications proposed for use in the construction of the Well. The Well shall be designed and 'e Il, :S,,-, $-. ., e;;" \,\ "--'c Agreement David H. Koch and City of Aspen Page 2 constructed in a manner to minimize impact to other current and future utility uses of the right of way for Roaring Fork Road. D. Construction Information. Promptly after construction of the Well, Koch will deliver to the City a complete set of as- built drawings, drill logs, and pump-test results for the Well. E. Disconnection from Aspen Water System. Upon completion of the Well, and prior to its use for irrigation on the Koch property, Koch shall disconnect all existing treated water taps serving the property, except for treated water taps providing only domestic indoor water supply. Koch shall sever all plumbing crossconnections on the property which would allow any possibility of commingling of water from the Well with water delivered from the City of Aspen water utility. Koch shall provide to the City a complete site plan of the Koch Property showing all water lines and clearly identifying the methods to be used to sever all existing crossconnections. Prior to severing of all such crossconnections, Koch shall give notice to the Water Department of the City of Aspen and allow staff of the Water Department to observe and inspect the severing of the crossconnections. 2. Water Rights. A. Judicial Confirmation. Koch, at his sole cost and expense, shall obtain a Basalt Water Conservancy District Water Allotment Contract and a decree from the District Court, Water Division 5, confirming the right to withdraw from the Well up to 10.22 acre feet of water at a maximum rate of flow of 30 g.p.m. Koch shall also obtain all necessary well permits from the Colorado State Engineer's Office for the Well. Performance of all of the actions required by this paragraph shall be at the sole cost and expense of Koch. B. City Cooperation. The City will provide all reasonable cooperation with Koch in performing the obligations described in the preceding paragraph 2.A., but shall not be obligated to expend any funds in connection therewith. 3. Conveyance. A. Well. Upon completion of construction and testing of the Well, Koch will deliver to the City a bill of sale transferring title to the Well and all related pumps, screens, pipes, valves and equipment located on the wellsite within the public right of way of Roaring Fork Road, free and clear of any liens or encumbrances. e' ~, , '.. t -. ~ Agreement David H. Koch and City of Aspen Page 3 B. Water Rights. Upon completion of all actions necessary to confirm the right of Koch to lawfully withdraw water from the Well on an ongoing basis, Koch shall convey to the City, by a Quit Claim Deed in a form acceptable to counsel for the City and Koch, all of the water rights owned by Koch and decreed for withdrawal through the Well. 4. Operation and Maintenance of the Well. A. Koch Operation. until such time as the City commences construction of the Municipal Well described in the following section, Koch shall have the right and responsibility to operate, maintain, repair and replace the Well and associated facilities, at the sole cost and expense of Koch. Koch shall utilize water produced from the Well only for his own use for irrigation and ornamental purposes on the Koch Property. Koch shall not operate the Well in such a manner as to produce water in quantities or at rates of flow in excess of those described in paragraph 2.A. above. Koch shall not enter into any agreement with any third party for the use or reuse of any water produced from the Well. Koch shall install and maintain of the volumes and rate of flow B. Water Measurement. equipment for the measurement produced from the Well. C. Maintenance. Koch shall maintain the Well and all related pumps and equipment in good working order and repair, at his sole cost and expense. D. City Inspection. The City shall have the right to inspect the Well at any reasonable time upon 24 hours' notice. Koch shall provide the Water Department of the City of Aspen with keys to any locks installed on the Well enclosure. The City shall also have the right to conduct reasonable testing of the Well upon 24 hours' notice for the purpose of determining its capacity and the quality of the water produced. E. curtailment of Well Operation. In the event that the City determines, in good faith, that a physical shortage of water exists which is impairing the ability of the City to meet its water service obligations and that suspension of withdrawals from the Well will increase the water available to the City, the City may place an administrative call with the Office of the Division 5 Engineer seeking the suspension or reduction of withdrawals of water from the Well. 5. Municipal Well. A. Acknowledgement of Right. The City has the right to construct, operate, maintain, repair and replace a well or wells e"" J \~ - fit,., ~, '.'''- Agreement David H. Koch and city of Aspen Page 4 for municipal use at the Wellsite (collectively referred to as "the Municipal Well"), at such times as the City, in its exercise of discretion, determines appropriate. The Municipal Well may be constructed through the enlargement or replacement of the Well, or any other reasonable method deemed appropriate by the City. The Municipal Well may be enlarged or replaced from time to time in the discretion of the City. Other than at the existing wellsite, Koch does not hereby grant the City any right to construct the Municipal Well or related improvements on any portion of the Koch Property outside of the platted public right of way existing as of the date of this Agreement. Nothing in this Agreement is intended as a waiver, release, or limitation on the future exercise by the City of its powers of eminent domain and condemnation or police power to take or use any portion of the Koch Property for public purposes, including construction of the Municipal Well. B. Construction of Municipal Well. If the City constructs the Municipal Well, all related improvements shall be underground. The City will perform such construction in conformance with all applicable land use and zoning requirements of the Municipal Code of the City of Aspen. The City shall use reasonable care in the construction of the Municipal Well to minimize disturbance to the surface of the Well site and adjacent areas of the Koch Property, including all landscaping, improvements and fixtures located thereon. The City shall also take reasonable measures in the construction of the Municipal Well to preserve and, if necessary, restore the surface of the Well site and adjacent areas of the Koch property, including all landscaping, improvements and fixtures located thereon, to the extent reasonably practical, to the condition existing prior to the construction of the Municipal Well. The City will provide Koch with written notice, plans and drawings sixty (60) days prior to the commencement of construction of the Municipal Well. Nothing in this Agreement is intended as a waiver, release or limitation on the future exercise by Koch of his right to pursue all available legal remedies in the event of any breach of the terms of this Agreement. C. Ownership and Expense. All costs of constructing the Municipal Well, related improvements, and restorations shall be the sole responsibility of the City. The City shall, at its sole cost and expense, obtain all permits, approvals or decrees necessary for the construction and operation of the Municipal Well. Except as set forth in paragraph 6.A., Koch shall have no ownership or right, legal, beneficial or equitable, in or to the Municipal Well and any water rights associated therewith. The Municipal Well shall be operated as a feature of the City of Aspen water utility. In the event the Municipal Well is ~., \i. 1\I1t', ~ \; '. t.lt \, '\,. Agreement David H. Koch and city of Aspen Page 5 constructed, Koch shall have the right to receive raw water service from the City of Aspen as set forth below. D. Operation of Municipal Well. The Municipal Well, if constructed, shall be operated, maintained, repaired, and replaced by the City at its sole cost and expense. 6. Municipal Water Service. A. Commencement of Service. In the event the City constructs the Municipal Well described above, the City will provide Koch with raw water from its municipal water system at the rate of flow and quantity described in paragraph 2.A. The City will provide Koch with raw water at no cost for a period of thirty (30) years following the completion of construction of the Municipal Well. Delivery of such raw water shall commence at the time that construction of the Municipal Well interrupts the production of water from the Well. The City shall take all reasonable steps to ensure that no interruption of raw water delivery occurs as a result of the construction of the Municipal Well. B. Source of Supply. If the City constructs the Municipal Well, the City may deliver raw water to the Koch Property from and through any water utility system features which can lawfully and physically deliver such water to the Koch Property irrigation system pump house, including but not limited to the Municipal Well. If the City corrstructs the Municipal Well, it shall pay the cost of any facilities required to maintain delivery of raw water to the Wellsite for use on the Koch Property. C. Water Quality. The City shall take reasonable efforts to ensure that any raw water delivered by the City shall be of a quality which does not materially interfere with the intended uses of raw water on the Koch Property. D. Service Interruption. In the event the City commences delivery of raw water hereunder, the City shall take all reasonable efforts to ensure that raw water service to the Koch Property shall not be interrupted other than as the result of actions beyond the control of the City, temporary required maintenance and repairs to the Aspen water system, or physical water supply shortage. In the event of a shortage in the physical supply of water available to the City of Aspen, the City will curtail delivery of raw water to the Koch Property on terms and conditions no less favorable than applicable to other private users of raw water delivered by the City of Aspen. E. Water Rates. Subject to paragraph 2.A. above, rates for raw water delivered by the City hereunder and charged to Koch ~e,\ \\ "< tA ., (A '. Agreement David H. Koch and city of Aspen Page 6 shall be at the same level as may be established from time to time for all other raw water customers served by the City of Aspen. F. Tap Fees. Koch shall not be liable for any tap fees otherwise payable to the City for the delivery of raw or treated water at the rates and quantities set forth in paragraph 2.A. above. Any tap fees previously paid by Koch for water other than for indoor domestic use shall be refunded to Koch upon completion of the requirements set forth in paragraph I.E. above. 7. Indemnification. A. Koch Indemnification. Koch shall indemnify, defend, and hold the City harmless from all claims or damages of any sort whatsoever arising out of the construction, operation, maintenance, repair, replacement or existence of the Well or the adjudication of any water rights therefor. This indemnification shall include payment of any attorney fees incurred by the City as a result of any such claims. This indemnification obligation shall not extend to any claims arising out of actions or failures to act occurring after the date on which the City assumes operation of the Well. B. City Indemnification. The City shall indemnify, defend, and hold Koch harmless from all claims or damages of any sort whatsoever arising out of the construction, operation, maintenance, repair, replacement or existence of the Municipal Well or the adjudication of water rights therefor. This indemnification shall include payment of any attorney fees and costs incurred by Koch as a result of any such claims. This indemnification obligation shall not extend to any claims arising out of actions or failures to act occurring before the date the City commences construction of the Municipal Well. 8. Termination and Assignment. A. Koch Termination. Koch may terminate this Agreement on sixty days notice to the City, at any time after completion of all obligations under paragraphs 1, 2 & 3 of the Agreement. Termination of the Agreement by Koch will terminate all obligations of Koch to operate the well or receive raw water service from the City of Aspen. Termination of the Agreement by Koch will not impair the rights of the City to construct and operate the Municipal Well or any other rights of the City, whether arising under this Agreement or otherwise; or the right of Koch to request delivery of raw water from the Municipal Well at rates paid by all other raw water customers served by the City. e....... ~ ~ ~- .. ~. \~ .' ~. ~. ~ Agreement David H. Koch and city of Aspen Page 7 B. Termination by the City. After construction of the Municipal Well, delivery of raw water to Koch by the City shall not be terminated except due to a physical shortage of water available to the city. In the event of termination of raw water delivery due to physical shortage of water, the City will terminate delivery of raw water to Koch only on terms no less favorable than those applicable to other private raw water users in the City of Aspen. Prior to construction of the Municipal Well, the City may terminate the Agreement only in the event of a breach of its terms by Koch, after giving Koch prior written notice of the breach and fifteen days thereafter to correct such breach. C. Assignment. Koch may not assign the rights under this Agreement separate from any conveyance of the Koch property without the written consent of the City, which consent shall not be unreasonably withheld. 9. Miscellaneous Provisions. A. Binding Effect. This Agreement, and the rights and obligations shall be binding on the parties, their successors, heirs, personal representatives, and assigns. The obligations Koch created hereunder shall be deemed to be covenants running with the Koch Property. The parties agree that this Agreement may be recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. B. Entire Agreement. This written terms of this Agreement constitute the entire Agreement of the parties regarding all subjects addressed herein. This Agreement is intended to be and shall be deemed fully integrated. C. Headings. The section and paragraph headings used are for convenience only and do not create any rights or obligations whatsoever. D. Execution. counterparts and all constitute a single, This Agreement may be executed in executed counterparts shall be deemed to fully executed Agreement. E. Specific Enforcement. The parties acknowledge that a breach of the obligations of Koch and the City arising hereunder could not be fully compensated in damages and that enforcement of the obligations of the parties hereund~r is an appropriate subject for specific enforcement, in addition to any other remedies available at law. F. Attorney fees. In the event of any arbitration or litigation over any dispute concerning a breach of the De, \ '1,< m. !({ . ~". ~.;, , '~- Agreement David H. Koch and city of Aspen Page 8 obligations of Koch or the City arising hereunder, the prevailing party shall recover reasonable attorney fees and costs. G. Venue. Venue for any action arising hereunder shall be only in the District Court in and for Pitkin County. Koch specifically agrees to the exercise of personal jurisdiction over him by said court in an action arising under this Agreement. H. Notice. All Agreement shall be in addressed as follows: notice required or allowed under this writing and shall be effective upon mailing To the City: with a copy to: Phil Overeynder Water Department City of Aspen 130 S. Galena Street Aspen, Colorado 81611 City Attorney City of Aspen 130 S. Galena Street Aspen, Colorado 81611 To Koch: David H. Koch P.O. Box 2256 Wichita, KS 67201 with a copy to: Robert Noone Delaney & Balcomb P.O. Drawer 790 Glenwood Springs, Colorado 81602 The City of Aspen David H. Koch ;';C4l)1)~ 2/~ David H. Koch