HomeMy WebLinkAboutresolution.council.032-93
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RESOLUTION NO. 3;:C
, Series of 1991
A RESOLUTION APPROVING A WATER MAIN EXTENSION AND SUPPLY
AGREEMENT BETWEEN THE CITY OF ASPEN AND JOHN TUCKER AND
COTTONWOOD GARDENS DEVELOPMENT CORPORATION, AND AUTHORIZING THE
CITY MANAGER TO EXECUTE SAID LEASE AGREEMENT ON BEHALF OF THE CITY
OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a water main extension and
supply agreement between the City of Aspen and John Tucker and the Cottonwood Gardens
Development Corporation, a true and accurate copy of which is attached hereto as Exhibit "A";
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 that water main extension
and supply agreement between the City of Aspen and John Tucker and Cottonwood Gardens
Development Corporation, a copy of which is annexed hereto and incorporated herein, and does
hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the ~ day of A~ ' 1993.
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Jolin 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.
tucki:r.rell
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WATER MAJN EXTENSION AND SUPPLY AGREEMENT
THIS AGREEMENT is entered this U day of , 1993,
between the City of Aspen, Colorado, a Colorado municipal corpor on and home rule city
(hereafter "City"), and John Tucker and Cottonwood Gardens Development Corporation,
(hereafter "John Tucker").
WITNESSETH
WHEREAS, John Tucker is the developer of a planned development approved for
development, located on the property described on Exhibit "A" hereto; and
WHEREAS, Little Cloud Subdivision is located outside the jurisdictional limits of the
City, but within the City's Water Service Area 1, and John Tucker desires to obtain treated
water supply from the City; and '
WHEREAS, the supply of such water service to Little Cloud Subdivision will require the
installation of a private water main extension and distribution system; and
WHEREAS, 923-56 (b) of the Municipal Code of the City of Aspen (hereafter "Code")
requires that the extension of water supply outside of the boundaries of the City shall be made
pursuant to an agreement with the City, that the City shall not be obligated to extend such supply
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 bond or agreement a~ the City
determines are necessary to protect the best interests of the City; and
WHEREAS, 923-58 (h) of the Code provides that all persons requiring the extension of
existing water mains shall be responsible for the full cost of such water main extensions and of
any connections thereto, and shall fully comply with all other water main extension policies of
the City; and
WHEREAS, the Water Main Extension Policy of the City prohibits any water main
extension without providing for the costs of such an extension by agreement with the City, and
in the case of an extension outside the City limits, without approval by City Council and without
a water service agreement; and
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WHEREAS, the Water Main Extension Policy requires the extension of water mains to
the furthest point in the development so that future development of the water system can be
accommodated and also requires the installation of connecting loops and cross ties in the nature
of general improvements to the City water system at the developer's expense; and
WHEREAS, the City has determined that this Agreement and all covenants herein are
necessary to comply with 923-56 (b) of the Code and the Water Main Extension Policy of the
City and to obtain water right, right-of-way and water system benefits for the City, and the City
is not entering this Agreement as a public utility nor holding itself out to the public in general
as capable of or intending to provide water service extraterritorially; and
WHEREAS, 923-61 of the Code provides a schedule of hook-up charges, while 9 23-58
(b) through (e) provides for the rating of new or expanded water service based on potential water
demand as expressed in equivalent capacity units (ECU), authorizes the director of the Aspen
Water Department to make a separate ECU determination if the type of water service does not
fit into the enumerated categories of potential demand, and further provides for a schedule of
utility investment charges (UIC) per ECU according to the service area in which the new or
expanded service will occur; and
WHEREAS, no service line connection to a City water main may be made without a
utility connection permit as provided by 9 23-57 of the Code and without payment of all utility
investment and utility hook-up charges then in effect under 9 23-58 (b) through (e) and 9 23"61
of the Code; and
WHEREAS, 9 23-56 (g) of the Code requires the dedication of water rights for new
water service where appropriate, and the City desires to encourage the use of existing irrigation
water rights and raw water supplies for the purpose of lawn and other outside irrigation so as
to reduce the dependence on treated water for this purpose and to minimize the costs of
providing treated water service.
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NOW THEREFORE, in consideration of the premises, mutual promises, and covenants
contained herein, the parties agree as follows:
WATER MAIN EXTENSION PROVISIONS
1. John Tucker hereby represents that he has caused to be installed a private water
main to serve the first two' lots of the Little Cloud Subdivision. John Tucker further represents
that he has paid all actual design, specification, engineering review, bidding, contracting,
construction, acceptance and other costs of said water main extensions.
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2. All plans for said main extensions have been prepared by a Colorado registered
professional engineer in accordance with the City's standard specification, and all such plans
have been submitted to the City Engineer for reasonable review and approval before construction
began. John Tucker shall bear the reasonable cost of the City review.
3. John Tucker shall provide the City with a copy of a final pressure test and
chlorination report from a reputable engineering, testing or other qualified independent utility
construction firm to confirm that the water main extensions constructed are capable of
functioning properly and in compliance with all governmental public health standards.
4. The water main installed to serve the four (4) lots in the Little Cloud Subdivision
shall remain the property of, and be the sole responsibility of, the Little Cloud Subdivision
Homeowner's Association to effect any repairs or replacement of said water main.
5. The City of Aspen's responsibility for the maintenance and upkeep of the above-
mentioned water main shall end at the 6" valve connection to the City System in West Cooper
Avenue.
6. All connections to, and use of the water carried within, the private water main
that is to serve the Little Cloud Subdivision shall be governed by the City of Aspen's rules,
regulations, and all applicable codes pertinent thereto.
7. The existing 3/4" tap that served 210 West Cooper, and, that has been utilized
as a construction tap for water, shall be dedicated to the Little Cloud Homeowner's Association
for use in connection with common area landscaping irrigation and other periodic watering.
8. John Tucker does not anticipate that any person will later desire to connect to the
above-described water main extension and cross connecting loop to service any parcel not
located within Little Cloud Subdivision and hereby waives any claim for reimbursement based
on such connections to these lines. If, however, some party other than John Tucker wishes to
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connect onto the line, John Tucker will negotiate in good faith with those parties for pro rata
reimbursement to John Tucker for the cost of the water line that has been constructed by John
Tucker.
WATER RIGHTS DEDICATION AND LEASEBACK PROVISIONS
9. John Tucker represents that there are no water rights appurtenant to the
development, and that John Tucker does not own other water rights which can be dedicated
pursuant to the City's water rights dedication policies.
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WATER SERVICE PROVISIONS
10.
within Little
Agreement.
No permit shall be issued for any connection to a water main to serve any parcel
Cloud Subdivision until John Tucker has agreed fully to the terms of this
11. No permit shall be issued until the current utility investment charges (DIe) have
been paid; until the current utility hook-up charges have been paid; and until the applicant for
the service line connection has complied with all other applicable provisions of the Code, the
Charter of the City of Aspen, and of any other rules, policies, or regulations of the City in effect
at the time of the application for connection.
12. All water service line, connections within Little Cloud Subdivision shall be
installed in accordance with the applicable provision of the Code and in accordance with Water
Department policies at the expense of the applicant, and shall be metered at the expense of the
applicant.
13. All water service provided by the City hereunder shall be by gravity only, and
any additional water pressure desired at any building envelop within Little Cloud Subdivision
shall be provided by John Tucker or subsequent lot owners at no expense to the City.
STANDARD PROVISIONS
14. This Agreement is for the supply of City water service to Little Cloud Subdivision
only as specifically described herein, and no other water line extensions, taps, connections, or
water service are contemplated or in any way authorized by this Agreement. The City is not,
by this Agreement, prejudging, certifying or guaranteeing its ability to provide water service to
any area outside the incorporated limits of the City, nor may this Agreement be used as evidence
of approval of any land use requests, or as evidence of approval of water service except as
provided herein.
15. Unless expressly waived or adjusted herein, the users of any water supplied
pursuant to this Agreement shall be bound by, and all water service provided hereunder shall
be subject to, all applicable provisions of the Code, the Charter of the City of Aspen, and of any
other rules, policies or regulations of the City now in effect or as may be hereafter adopted.
A monthly charge for all treated water service under any service line connection within Little
Cloud Subdivision shall be paid as currently provided by S 23-102 through 105 of the Code, or
as hereafter may be amended.
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16. John Tucker agrees to adopt all such provisions set forth in Paragraph 15 above
as the rules and regulations governing the use of water on Little Cloud Subdivision and agrees
that such provisions shall be as fully enforceable within the Little Cloud Subdivision as if located
within the City limits. John Tucker agrees to assist the City in every manner reasonably
possible to enforce City rules and regulations made to protect purity, safety and supply of the
water, including curtailment during times of shortage. John Tucker agrees to prohibit all
unnecessary or unreasonable waste of water on Little Cloud Subdivision and to make reasonable
efforts to enforce such a prohibition. Unreasonable or unnecessary waste of water shall be
defined for the purposes of this Agreement by Colorado law relative to diversion and use of
water.
17. The parties to this Agreement recognize that the water supply for the City is
dependent upon sources from which the supply is variable in quantity or quality and beyond the
reasonable control of the City. No liability shall attach to the City hereunder on account of any
failure to accurately anticipate availability of water supply or because of an actual failure of
water supply due to inadequate run-off, poor quality, or occurrence beyond the reasonable
control of the City. 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
to Little Cloud Subdivision as potable as that furnished inside the City. So far as reasonably
possible, the City agrees to construct and devote the facilities necessary to provide to John
Tucker an adequate quantity of water out of the surplus water supply and excess capacity that
the City has available for the supply of its similarly situated customers and in view of historical
experience with water run-off. The judgment of the City in providing a margin of error shall
not be questioned unless clearly unreasonable. The City makes no promise or guarantee of
pressure, quantity, or quality of water supply except as specifically provided herein, and by the
Code provisions of the City.
18. All water furnished hereunder is on a leasehold basis for use on Little Cloud
Subdivision for all the various purposes for which the City has been decreed the right to
appropriate water, and unless otherwise specifically provided herein, all property ri,ghts to the
water to be furnished by the City hereunder are reserved in the City. Such water service does
not include any right to make a succession of uses of such water and upon completion ,of the
primary use on Little Cloud Subdivision all dominion over the water so leased reverts completely
to the City. Subject to the prohibition against waste and any other limitations on water use
imposed herein, however, John Tucker has no obligation under this Agreement to create any
particular volume of return flow from the water delivered hereunder. Nothing herein shall be
deemed or construed as creating an obligation on the City or John Tucker to separate from said
water any material added to it through use on Little Cloud Subdivision, nor shall anything
contained herein be deemed as imposing on John Tucker any obligation by virtue of this
Agreement for the purification of water after use on Little Cloud Subdivision.
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19. The parties agree that by this Agreement, the City does not become a public
utility, compelled to service other parties similarly situated. John Tucker agrees that neither it
nor its successors or assignees shall at any time petition the Colorado Public Utilities
Commission to acquire jurisdiction over any water rate set by the City or over any water service
provided by the City. The parties agree that in the event the City is held to be a public utility
by virtue of the Agreement, the Agreement shall terminate and be of no further force or effect
and if PUC jurisdiction is established, the rights of John Tucker shall be as are established by
the PUC.
20. 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, at the sole option of the City, either
terminate this Agreement or in good faith negotiate to modify the Agreement so as to make it
consistent with state or federal law, as the case may be.
21. 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.
22. The parties to this Agreement recognize that the City has the right to enforce its
rules, policies, regulations, ordinances, and the terms of this contract by seeking an injunction
to compel turning off or disconnection of the supply of water provided hereunder. In the event
that John Tucker or any user on Little Cloud Subdivision violates the rules, policies, regulations
or ordinances of the City as adopted by this Agreement or violates the terms of this Agreement,
the City may, without seeking an injunction and after ten (10) days notice to correct the
violation, terminate the delivery of water hereunder to the violator until such conditions have
been honored by John Tucker or the violator. The City shall be free from any liability arising
out of the exercise of its rights under this Paragraph.
23. 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.
24. All notices hereunder shall be given in writing by mail at the appropriate address
of the party, postage prepaid.
FOR THE CITY:
City of Aspen
c/o City Manager
130 South Galena Street
Aspen, CO 81611
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FOR JOHN TUCKER AND COTTONWOOD GARDENS DEVELOPMENT CORP.:
Cottonwood Homes, Inc.
Cottonwood Gardens Development Corp.
1102 Hancock Street
Casa Grande, Arizona 85222
25. The City shall not 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 control
of the City.
26. This Agreement may not be assigned without the written consent of the parties
hereto except John Tucker may assign this agreement to lenders or other partners for facilitation
of development of the project. The City shall not unreasonably withhold its consent to any
assignment of this Agreement so long as such assignment will not be injurious to the best interest
of the City.
27. Pursuant to C.R.S. S 31-12-121, John Tucker and his successors and assigns
hereby agree to apply for, or consent to, the annexation of Little Cloud Subdivision, or any
portion thereof, into the City of Aspen at such future date as deemed appropriate and necessary
by the Aspen City Council.
28. This Agreement supersedes and controls all prior written and oral agreements and
representations of the parties and is the total integrated agreement among the parties.
29. 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 duly authorized to do so.
30. The titles to this Agreement shall not be used to alter the meaning of this
Agreement.
31. This Agreement is binding upon the parties hereto, their successors and assigns,
and any sale of Little Cloud Subdivision shall be subject to this Agreement. The Agreement
shall be promptly recorded by the City.
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.1, IN WITNESS WHEREOF, the parties hereto set their hands on the day and year above
<'" first written.
ATTEST:
THE CITY OF ASPEN:
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City Clerk
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WITNESS:
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JOHN TUCKER:
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. ~()hn Tucker
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COTTONWOOD GARDENS
DEVELOPMENT CORP.
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JolliI Tucker, President
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VI'I C.
MEMORANDUM
TO:
Mayor and City Council
THRU:
Amy Margerum, City Manage
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THRU:
Bob Gish, Public Works Director
FROM: Larry Ballenger, Water Superintendent
DATE: May 17, 1993
SUBJECT: Water Service Agreement - little Cloud Subdivision
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SUMMARY: City staff has been negotiating a Water Service Agreement with John
Tucker and the Cottonwood Gardens Development Corporation since 1988 for the supply
of potable water to the Little Cloud Subdivision. This Development has been approved
by Pitkin County and was waived under the Water Moratorium August 26, 1991 by City
Council. Little Cloud is located outside the corporate City limits, within Service Area 1
and will require the attached Agreement to be ratified by City Council.
PREVIOUS COUNCIL ACTION:
* December 19, 1988 -- Council required a Detailed Submission Review of the Little
Cloud Subdivision as recommended by Mr. Glenn Horn, Assistant Planning
Director.
August 26, 1991 -- Council lifted the Moratorium on Water Main Extensions for
the Little Cloud Development. (Attached)
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BACKGROUND:
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October 29, 1988 n The City of Aspen advised John Tucker that the City did have
the capacity to serve the proposed Development and all provisions of the Water
Main Extension Policy must be followed.
December 19, 1988 -- City Council requested a Detailed Submission of Little Cloud
Subdivision for review.
June 12, 1990 -- The Board of County Commissioners approved the Little Cloud
SubdivisionfPUD Detailed Submission and Final Plat with Resolution No. 90-120.
August 26, 1991 n City Council approved to waive the Moratorium on Water Main
Extensions as applicable to the Little Cloud Development.
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FINANCIAL IMPLICATIONS: The developer is responsible for all costs associated with
the water line installation. The City will receive tap fees and revenues from the four
proposed lots in the Little Cloud Subdivision. There are no construction or system impact
costs to the City of Asp~n.
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RECOMMENDATIONS: Staff recommends that the City enter into an Agreement with
Mr. John Tucker, Cottonwood Garden Development Corporation, for the supply of
potable water.
ALTERNATNES: Mr. Tucker could develop a private water system for the proposed
subdivision.
PROPOSED MOTION: I move to approve Resolution 32-93 into an Agreement with Mr.
John Tucker for the supply of potable water to the Little Cloud Subdivision.
CITY MANAGER COMMENTS:
LABfspfm67.93
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MEMORANDliM
TO: MAYOR AND CITY COUNCIL
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THROUGH: CAROL O'DOWD, CITY MANAGER
FROM: LARRY BALLENGEtlFOR JOHN TIJCKER
DATE: AUGUST 22,1991 X
SUBJECT: LITTLE CLOUD SUBDIVISION -- WATER MORATORIUM
Purpose: Request Council to lift the Moratorium on Water Main Extensions for the Little Cloud
Subdivision.
Background: Little Cloud Subdivision has had previous City Council approval for the
Development. The Developer desires to extend a 6" water main from the City of Aspen's Water
System into the County to provide domestic and fire protection service to three residential
homes.
Staff has a concise Water Conservation Ordinance prepared for submittal. Much work has gone
into the new Ordinance by all City Departments. Little Cloud Development should, not be
placed in jeopardy due to Council not ratifying the proposed policy. As stated previously,
Council has already given this Development approval for construction.
Recommendation: Staff recommends Council lift the moratorium on Water Main Extensions
for the Little Cloud Subdivision.
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