HomeMy WebLinkAboutresolution.council.039-98
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RESOLUTION No.M
(Series of 1998)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AUTHORIZING EXECUTION OF THE "AGREEMENT FOR WATER SERVICE
AGREEMENT" RELATING TO THE EXTENSION OF WATER SERVICE TO THE HINES-
HIGHLANDS LIMITED PARTNERSHIP PROPERTY.
WHEREAS, the City Council adopted Ordinance No. 19 (Series of 1997) on June 9,1997;
and
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WHEREAS, said ordinance authorized the City to execute a water service agreement
between the City and the Highlands Water and Sanitation District, the Hines-Highlands Limited
Partnership and the Aspen Highlands Mountain Limited Liability Company, the Aspen Highlands
Skiing Corporation and H.LL.P. Mountain Limited Partnerships (the latter four entities being
referred to as "Developer"), for the extraterritorial extension and delivery of municipal water
services to the development and associated areas commonly known as the Aspen Highlands Base
Area Development; and
WHEREAS, the City's execution of the water service agreement was made expressly
contingent upon Pitkin County's verification that certain amounts to be paid to Pitkin County for
transportation mitigation and the Entrance to Aspen Study had in fact been paid; and
WHEREAS, the water service agreement has been signed by the District; and
WHEREAS, the Developer has agreed to execute the water service agreement at such time
as the plat of the Aspen Highlands Base Area Development is ready for recording with the Pitkin
County Recorder; and
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WHEREAS, the Developer has agreed to make payment of all amounts due to Pitkin County
as described in Section 1 of Ordinance 19 at the time the plat is recorded; and
WHEREAS, it is anticipated that the plat will be ready for recording within the next few
weeks; and
WHEREAS, Developer wishes to obtain necessary permits to commence earthmoving and
initial aspects of construction of the water system, at its own risk, prior to execution of the water
service agreement, owing to the short construction season; and
WHEREAS, the City is willing to allow Developer to commence said construction at its own
risk, on the terms and conditions set forth in the Agreement for Water Service Agreement attached
hereto as Exhibit I; and
WHEREAS, the Agreement for Water Service Agreement also contains the parties'
agreement to execute an addendum to the water service agreement at the same time the water service
agreement is executed; and
WHEREAS, the Addendum (attached as Exhibit B to the Agreement for Water Service
Agreement) provides clarification conceming the City's ownership of the wholesale water facilities
to be constructed by Developer, and clarification of the annexation provisions of the Water Service
Agreement, as well as correction of certain typographical errors; and
WHEREAS, the Addendum does not substantially change the Water Service Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO,
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That the City Council of the City of Aspen hereby determines that execution of the attached
Agreement for Water Service Agreement, which permits developer to commence construction of the
water system contemplated in the water service agreement approved by the City Council in
Ordinance No. 19 (Series of 1997) on June 9, 1997, is hereby approved, and the City Manager is
authorized to execute the Agreement for Water Service Agreement on behalf of the City Council,
and at such time as the water service agreement is executed, to execute the addendum thereto as well.
RESOLVED, APPROVED and ADOPTED this 11- day of May, 1998, by the City Council
for the City of Aspen, Colorado.
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John S. ennett, Mayor
1, Kathryn S. Koch, duly appointed and acting City Clerk, 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 ~ II
,1998.
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Kathryn S. , City Clerk
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EXHIBIT "A"
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CITY OF ASPEN
WATER SERVICE AGREEMENT
WITH
HIGHLANDS WATER AND SANITATION DISTRICT
HINES.HIGLANDS LIMITED PARTNERSHIP
ASPEN HIGHLANDS MOUNTAIN LIMITED LIABILITY COMPANY
ASPEN HIGHLANDS SKIING CORPORATION
AND
H.I.L.P. MOUNTAIN LIMITED PARTNERSHIP
This exhibit may be viewed in the City Clerk's office. It has not been included here
as it is fairly lengthy to reproduce.
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Exhibit "B"
CITY OF ASPEN
FIRST ADDENDUM
TO WATER SERVICE AGREEMENT
This First Addendum to Water Service Agreement is entered into this
day of , 199_, in Aspen. Colorado, between THE CITY OF ASPEN. a
Colorado municipal corporation and home rule city ("City "), the mGBLANDS WATER AND
SANITATION DISTRICT, a quasi-municipal corporation ("District"). IUNES-mGBLANDS
LIMITED PARTNERSHIP. alimi.ted partnership organized under the laws of Delaware.
ASPEN mGBLANDS MOUNTAIN LIMITED LIABILITY COMPANY, a limited liability
company organized under tile laws of Colorado, ASPEN mGBLANDS SKIING
CORPORATION, a Delaware corporation, and B.I.L.P. MOUNTAIN LIMITED
P ARTNERSmP, Delaware limited partnership (the parties other than the City and District being
herein cumulatively referred to as "Developer"),
WHEREAS, the p9.rties are all of the parties to that certain Water Service Agreement
executed contemporaneously herewith; and
WHEREAS, the parties wish, by this First Addendum, to correct certain provisions of the
Water Service Agreement;
THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth,
the parties agree as follows:
1. Paragraph 14 of the Water Service Agreement is hereby amended to read, in its
entirety, as follows:
Testing - Convevance: As-Built Drawings. Upon completion of
each phase of construction, as described in Exhibit B-Z, and before
any water is delivered to that phase of the water system
improvements pursuant to this Agreement, distribution and
transmission mains and all associated water lines and facilities shall
be tested and, upon approval by the City and the District, the
distribution lines located within the District shall be conveyed
(excluding individual service lines) along with all necessary non-
exclusive easements to the District for the duration of its existence,
and thereafter to the City, and all wholesale delivery facilities
including the tank, pump station, pressure release valves, and
transmission mains and appurtenances thereto shall be conveyed
(excluding individual service lines) along with all necessary non-
exclusive easements, to the City. The mains. lines and associated
facilities shall be conveyed to the appropriate grantee free and clear
of all liens and encumbrances, by assignment and/or deed in form
acceptable to the City Attorney and the District's attorney, as
appropriate,s and shall be accepted by the grantee to whom
conveyed. Developer shall also convey to City, in form acceptable
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to the City Attorney, any interest in may have in the City's raw
water pipeline and facilities constructed ptjl"suant .to the 1995
Agreement. The bonds provided py Developer pursuant to
paragraph 7 above shall be adjusted to reflect the final actual
construction costs. As-built drawings of the Project, including the
water system and all other utilities, shall be provided to the City
. and the District on reproducible sepias with a maximum size of 24 "
x 36". and on an "auto cad disk data transfer me" tied into one (1)
set of state plane coordinates.
5 If the District hll8 been dis~olved by the time a phase of the water system
is to be conveyed, such ph.aBe shall be conveyed to the City alone, in form
acceptable to the City Attorney.
2. Paragraph 17 of the Water Service Agreement is amended by deletion of the words
"or not" at the beginning of Line 4, page 13, and by deletion of the word "and" between the
words "pro-rated" and "well" onLine 16, page 13.
3. Paragraph 27 of the Water Service Agreement is hereby amended to read in its
entirety as follows:
Atmexation. After final plat approval of the Project and vesting of
property rights in accordance with the final approvals granted by
the Pitkin County Board of County Commissioners, and upon the
request of the City, at the City's sole discretion, Developer, or its
successors in interest, shall petition the City for annexation of the
Subject Property, provided such annexation is for the entire Subject
Property, (excluding Parcel A as such is described on Addendum
1) 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., 31-12-
104(1)(a). Such anne]Clltion shall not divest or diminish any land
use approvals, grants of exemption, variances, design approvals or
any other development rights awarded by Pitkin County for the
Project or the Subject Property, including but not limited to the
vesting periods for such land USe approvals or developmentc rights,
to the extent such approvals and rights are legally vested on behalf
of Developer prior to annexation to the City. The owners of the
property comprising the Property to be Annexed upon written
request shall provide to 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
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MAY. 6.1998 11:38AM LAW OFFICES
NO. 115 P.4
to Annex. Nothing herein shall be construed to anticipate or
require annexation of property owned by the United States of
America or any agency thereof, Failure of Developer and/or its
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 Developer (or if such property has been. trllllSferred, only its
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 beADnexed 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 Orcjil111nce 30, Series of 1995, or any
similar ordin"nC'.e. In the event annexation would result in any
approval, design criteria or zoning 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
ADllexed which would render the Project or any portion thereof
conforming, The requirement to annex set forth herelnshall not
impair, alter or modify Developer's intent and rights to form and
operate one or mOre Colorado Special Districts for the Subject
Property; the City consents to the existence of such Special
Districts. In the event of any inconsistency between the P.U.D.
approvals granted by Pitkin County for the Property to be Annexed
and the legislative requirements or policies of the City. the P. U.D.
approvals shall control.
Paragraph 30 of the Water Service Agreement is hereby amended to show that the address
for Patrick & Stowell P.C. is 730 East Durant Street, Aspen, Colorado 81611.
4.. This First Addendum shall berecQrded with the Pitkin County Clerk and Recorder
contemporaneously. with the recording of the Water Service Agreement.
5. Except as specificaI1y amended herein, the Water Service Agreement remains in
full force and effect.
INWITNESS WHEREOF, the parties have executed this Agreement the date and year first
above written.
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f' APPROVED AS TO FORM:
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Aspen City Attorney
ATTEST:
By
Title
APPROVED AS TO FORM:
HILL, EDWARDS, EDWARDS &: ADKISON
Joseph E. Edwards, Jr.
Attorney for Highlands Water and
Sanitation District
ATTEST:
By
Title
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HIGHLANDS WATER &
SANITATION DISTRICT
A Quasi-Municipal Corporation
By
Title
HINES-HIGHLANDS LIMITED
PARTNERSHIP
By
Title
ASPEN IllGHLANDS SKIING
CORPORATION
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o ATTEST:
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By
Title
ATTEST:
By
Title
ATTEST:
By
Title
APPROVED AS TO FORM:
PATRICK & STOWELL, P.C.
Kevin L. Patrick
730 East Durant Str~et
Aspen, CO 81611
(970) 920-1028
Attorney for Hines-Highlllllds Limited
Partnership, Aspen Highlands
Skiing Corporation and HILP
Limited Partnership
D:IUS2ltICFClWPIHINl!S.ADD(111891)
By
Title
H.I.L.P. MOUNTAIN LIMITED
PARTNERSHIP
By
General Partner
ASPEN HIGHLANDS MOUNTAIN
LIMITED LIABILITY CO.
By
Title
APPROVED AS TO FORM:
HOLLAND & HART, LLP
Arthur B. Ferguson, Jr.
600 E. Main Street ..
Aspen. CO 81611
Attorneys for Aspen Highlllllds
Mountain Limited Liability
. Company
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Exhibit "C"
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QUIT CLAIM DEED
THIS DEED, Made this day of May, 1998, between, HINES-HIGHLANDS
LIMITED PARTNERSHIP, a limited partnership organized under the laws of Delaware, whose
address is 426 E. Main Street, Aspen, CO 81611, and HIGHLANDS MOUNTAIN LIMITED
LIABILITY COMPANY, a limited liability company organized under the laws of Colorado,
whose address is Box 1248, Aspen, CO 81612, ASPEN HIGHLANDS SKIING
CORPORATION, a Delaware corporation, whose address is c/o Hines Highlands Limited
Partnership and H.LL.P. MOUNTAIN LIMITED PARTNERSHIP, organized under the laws of
the State of Delaware, whose address is 426 E, Main Street, Aspen, CO 81611, cumulatively
referred to as "Grantors"), and The City of Aspen, Colorado, whose legal address is 130 South
Galena Street, Aspen, CO 81611 in the County of Pitkin and State of Colorado, "Grantee".
WITNESSETH, That the Grantors, for and in consideration of the sum ofTen Dollars
and other good and valuable consideration, including the execution of a Water Service
Agreement with Grantee, the receipt and sufficiency of which is hereby acknowledged, have
remised, released, sold, conveyed and QUIT CLAIMED, and by these presents do remise,
release, sell, convey and QUIT CLAIM unto the Grantee, its successors and assigns, forever, all
their right, title, interest, claim and demand which the Grantors have in and to the following
water rights decreed with points of diversion in the County of Pitkin and State of Colorado:
A.
4.5 cfs of the Stein-Arlian Marolt Ditch water right decree for 21.0 cfs in Civil Action
No. 4033, Garfield County District Court, on October 24, 1952, with an appropriation
date of August 12, 1892;
B, Lyeth-Jones Pipeline water right decreed for 0.25 cfs in Civil Action No. 5884, Garfield
County District Court, with an appropriation date of July 31, 1965;
C. Lyeth Jones Pipeline, First Enlargem~nt water right decreed in 4.5 cfs conditionally in
Case No. 93CW322 (Consolidated with 93CW323), Water Division No.5, with an
appropriation date of August 10, 1993;
D. The AH Well Nos. 1-4 water rights cumulatively decreed for 1.0 cfs each conditionally in
Case No. 93CW322 (Consolidated with 93CW323) Water Division No.5, with an
appropriation date of August 10, 1993;
E. Maroon Creek Pipeline, Highlands Enlargement water right decreed for 4.5 cfs
conditionally in Case No. 93CW322 (Consolidated with 93CW323) Water Division No.
5, with an appropriation date of August 10, 1993;
F.
AH Pipeline, First Alternate water right decreed for 4.5 cfs conditionally, in Case No.
93CW322 (Consolidated with 93CW323) Water Division No.5, with an appropriation
date of August 10, 1993; and
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G.
AH Pipeline, Second Alternate water right decreed for 4.5 cfs conditionally, in Case No.
93CW322 (Consolidated with 93CW323) Water Division No.5, with an appropriation
date of August 10, 1993; and
H. All of Grantors' interest in the approved changes and exchange of water rights decreed in
Case No. 93CW322 (Consolidated with 93CW323), Water Division No.5.
Provided however, the cumulative diversions for the water rights described in subparagraph C-G,
inclusive, above, is limited to 4.5 cfs, Provided further that Grantors expressly reserve here from
all interest in the Pearson Spring and Ditch, Mid-Mountain Supply and Moment of Trust
structures and water rights and all interest in all ditch structures for the water rights described
above. Nothing herein (and such is expressly reserved herein) shall be construed as granting
Grantee any rights of access to the lands of Grantors in conjunction with the use and
development of the water rights described herein except as expressly set forth in that certain
Water Service Agreement recorded as Reception No. , Pitkin County
records,
And Provided Further That, in the event the Water Service Agreement described above is
ever terminated, all of the water, water rights and structures for the water rights conveyed by this
Deed shall be reconveyed to Grantors by Grantee in accordance with the before-mentioned Water
Service Agreement.
TO HAVE AND TO HOLD the same, together with all and singular the appurtenances
and privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right,
title, interest and claim whatsoever, of the Grantors, either in law or equity, to the only proper
use, benefit and behoof of the Grantee, the successors and assigns forever.
IN WITNESS WHEREOF, the Grantors have executed this deed on the date set forth
below.
ATTEST:
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and
Home Rule City
By
By
City Clerk
Mayor
The foregoing instrument was acknowledged before me this _ day of
1998 by
My commission expires
, 19_. Witness my hand and official seal.
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APPROVED AS TO FORM:
Aspen City Attorney
Notary Public
The foregoing instrument was acknowledged before me this _ day of
1998 by
My commission expires
, 19_. Witness my hand and official seal.
Notary Public
HIGHLANDS WATER &
SANITATION DISTRICT
A Quasi-Municipal Corporation
By
Title
The foregoing instrument was acknowledged before me this _ day of
1998 by
, 19_. Witness my hand arid official seal.
Notary Public
ATTEST:
By
Title
My commission expires
(" APPROVED AS TO FORM:
HILL, EDWARDS, EDWARDS, & ADKINSON
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Joseph E. Edwards, Jr.
Attorney for Highlands Water and
Sanitation District
The foregoing instrument was acknowledged before me this _ day of
1998 by
, My commission expires
, 19_. Witness my hand and official seal.
Notary Public
HINES-HIGHLANDS LIMITED
PARTNERSHIP
By
Title
The foregoing instrument was acknowledged before me this _ day of
1998 by
. 19_. Witness my hand and official seal.
Notary Public
ATTEST:
By
Title
My commission expires
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ATTEST:
By
Title
ASPEN HIGHLANDS SKIING
CORPORATION
By
Title
The foregoing instrument was acknowledged before me this _ day of
1998 by
My commission expires
, 19__ Witness my hand and official seal.
Notary Public
H.I.L.P. MOUNTAIN LIMITED
PARTNERSHIP
By
General Partner
The foregoing instrument was acknowledged before me this _ day of
1998 by
, 19__ Witness my hand and official seal.
Notary Public.
ASPEN HIGHLANDS MOUNTAIN
LIMITED LIABILITY CO.
By
Title
ATTEST:
By
Title
My commission expires
ATTEST:
By
Title
,
.1 '. . ...
,
r. The foregoing instrument was acknowledged before me this _ day of
1998 by
My commission expires
. 19_. Witness my hand and official seal.
Notary Public
F;IDA TA IHINES\38B3QTCL,O 1
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