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HomeMy WebLinkAboutordinance.council.012-00ORDINANCE NO. / ~;~.. Series of 2000 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A WATER SERVICE AGRE. E ~MENT ~TH T~ ~IJK .IN COUNTY, COLORADO BOARD OF COUNTY COMMISSIONERS FOR PROVISION OF WATER SERVICE TO A PROJECT KNOWN AS' THE STILLWATER RANCH AFFORDABLE HOUSING PROJECT, IN PITKIN cOUNTY, COLOKADO. WHEREAS, the Board of County Commissioners of Pitkin County, Colorado, submitted an Application for Water Service to the City Water Department, requesting that water service be provided to the Stillwater Ranch Affordable Housing Project; and WHEREAS, the property to be served is now owned by Pitkin County, and is located in Pitkin County, and not within the City limits of the City of Aspen; and WHEREAS, Section 25.12.020 of the Aspen Municipal Code provides that any extension of City water service outside the corporate limits of the City of Aspen shall be made pursuant to an agreement with the City and in accordance with the City of Aspen water main extension policy and, further, that the City may grant water service only upon a determination that no conflict exists between the best interests of the City and the prospective water use, and that the City may impose such contract requirements as it deems necessary to safeguard the best interests of the City; and WHEREAS, the City Council has adopted by Resolution No. 5, Series of 1993, as amended, policies to guide municipal water system development and services bevond the City limits; and WHEREAS, said policies require the City Council to make a determination that the proposed water service extension complies with said policies and is in the best interests of the City of Aspen; and WHEREAS, the City Council has had an opportunity to review with City staff the proposed extension of water service to the Stillwater Ranch Affordable Housing Project;. and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT Section 1. The City Council of the City of Aspen hereby determines that the proposed provision of City water to the Stillwater Ranch Affordable Housing Project located outside the City limits of the City of Aspen is in the best interests of the City and complies with the City's Code and policies regarding extraterritorial extension of water service and availability of affordable housing, based on the City's understanding that the architectural plans and overall design for the project meet the intent of the City's Residential Design Standards and the intent of its standards for roads, utilities and other infrastructure not specifically provided for in the water service agreement. Section 2. The City Council of the City of Aspen therefore agrees to extend City water service to the Stillwater Ranch Affordable Housing Project on the terms and conditions set forth in the Water Service Agreement attached hereto and incorporated herein by reference, based on the County's agreement that the project will meet the intent of the City's Residential Design Standards and the intent of its standards for roads, utilities and other infrastructure not specifically provided for in the water service agreement, and will comply with the water service agreement. Section 3. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. WHEREAS, the City Council has had an opportunity to review with City staff the proposed extension of water service to the Stillwater Ranch Affordable Housing Project; and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT Section 1. The City Council of the City of Aspen hereby determines that the proposed provision of City water to the Stillwater Ranch Affordable Housing Project located outside the City limits of the City of Aspen is in the best interests of the City and complies with the City's Code and policies regarding extraterritorial extension of water service and availability of affordable housing, based on the City' s understanding that the architectural plans and overall design for the project meet the intent of the City's Residential Design Standards and the intent of its standards for roads, utilities and other infrastructure not specifically provided for in the water service agreement. Section 2. The City Council of the City of Aspen therefore agrees to~ extend City water service to the Stillwater Ranch Affordable Housing Project on the terms and conditions set forth in the Water Service Agreement attached hereto and incorporated herein by reference, based on the County's agreement that the project will meet the intent of the City's Residential Design Standards and the intent of its standards for roads, utilities and other infrastructure not specifically provided for in the water service agreement, and will comply with the water service agreement. Section 3. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4. If any section, subsection, sentence, claUse, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5. A public hearing on the ordinance shall be held on the ~'Tt,/? day of f~/~ ,2000, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as Provided by law by the City Council of the City of Aspen on the ~). (-{ day of C~,e./~~. ~achatel R~cha, ds, ~ayor ~ -- Attest: FINALLY ADOPTED, PASSED AND APPROVED THIS ,2000. Attest: '- Kath~~ DAY OF DSClient FilesXAspenkBeneclictXsfillwater ranch lot 1 ordinance - revised 050200.wpd Final 04-19-00 CITY OF ASPEN WATER SERVICE AGREEMENT (New Development) This Water Service Agreement is entered into this day of , __, in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home rule city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Pitkin County Board of County Commissioners, c/o the Aspen-Pitkin Housing Authority, whose address is 530 East Main Street - LL, Aspen, Colorado 81611 (hereafter "County"). WITNESSETH WHEREAS, the City owns and operates the City of AsPen water system in accordance with the laws of the State of ColOrado, and in accordance with the charter, ordinances, rules, regulations, pOlicies and reSolutions of the City of Aspen, and this Agreement is entered into in cOnformity With, and subject to, all such laws, charter, ordinances, rules, regulations, policies and resolutions; and WHEREAS, County is the owner of certain real property comprising approximately 4.179 acres situated in Pitkin County, Colorado, more particularly described as Stillwater Ranch Parcel 1, Lot 1 and referred to in this Agreement as the "Subject Property"; and WHEREAS, County seeks to construct on the Subject Property the Stillwater Ranch Affordable Housing Project described on Addendum 1 hereto (referred to herein as the "Project"); and WHEREAS, County seeks to obtain municipal water service from the CitY for the Project on the Subject Property; and WHEREAS, the Subject Property is located outside the corporate limits of the City; and WHEREAS, a conceptual application was submitted to Pitkin County on November 30, 1999; and WHEREAS, water service for the Project will require the construction and installation of certain water mains, lines and related facilities as described in this Agreement; and Water Service Agreement (new development) 12/97 (revised 06/98) Final 04-19-00 WHEREAS, the Municipal Code of the City of Aspen, Colorado (the "Code"), requires that the extension of water service outside the boundaries of the City shall be made only pursuant to a written agreement with the City, that the City shall not be obligated to extend such service, 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 agreement as it deems necessary or appropriate to protect its best interests; and WHEREAS, the City requires a loop system or a cross-tie system (at County's expense) such that when water main extensions are made, such extensions shall be made in a manner that will allow cross-connection with another of the City's treated water mains to create a looped system; and WHEREAS, the City's Water Service Extension Policy permits water service extension only upon demonstration that such extension will meet the policy goals and requirements of Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Code as the same may be further amended from time to time]; and WHEREAS, the City has determined that this Agreement and all covenants herein are necessary to comply with the Code and the City's water policies; and WHEREAS, the City is not hereby representing that it is a regulated public utility, or holding itself out to the public in general as capable of or intending to provide water service extraterritorially; and WHEREAS, the Code provides for the rating of new or expanded water service based on potential water demand as expressed in equivalent capacity units (hereafter "ECU"); and WHEREAS, County has submitted its Application for Water Service Extension (the "Application") and has paid all fees required in connection with the Application. The Application, and all attachments, addenda and exhibits thereto have been relied upon by the City in authorizing this Agreement; and WHEREAS, the City has approved the Application, and is willing to provide water service to County on the terms and conditions o£this Agreement; THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and County agree as follows: PURPOSE OF AGREEMENT 1. Water ser~ice to Project and SUbject ProPerty. With regard to the Subject prOperty only, this Agreement replaces the expired UtilitY Connecti°n Permit and Water Service Agreement Water Service Agreement (new development) 12/97 (revised 06/98) -2- Final 04-19-00 executed December 16, 1994, and recorded with the Pitkin County Recorder at Reception No. 377679 on December 30, 1994, which the parties agree is of no further force and effect as to the Subject Property. On the terms and conditions of this .Agreement, the City hereby agrees with County to provide treated water service to the Project and the Subject Property in such quantities and to the extent herein provided so as to serve the structures and uses authorized by Pitkin County for the Project. The anticipated structures and uses are summarized on Exhibit B. County understands that the City will be the sole provider of raw water service (if any) and treated water service to the Project and the Subject Property. Pursuant to this Agreement, the City shall provide treated water service adequate to meet the approved demands and uses of the Project and the Subject Property, provided, however, that the City shall not be required to supply treated water to serve more than 30.0 ECUs, and further provided, that the maximum volume of treated water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 13 acre-feet per year. Only those structures and uses approved by Pitkin County for the Project and the Subject Property may be served under this Agreement. 2. Limitation of Time to Provide Service. The City's obligation to provide water service to the Project and the Subject Property pursuant to this Agreement shall terminate if County has not completed construction of the water transmission and distribution mains, lines, and related facilities described on Exhibit C by December 31, 2001, unless completion of construction is delayed by force majeure as defined in paragraph 31 below, in which case the deadline shall be extended by the same number of days as the force majeure delay that prevented completion of construction. 3. Condition Precedent. This Agreement is expressly contingent upon development approval for the Project being granted by the Board of County Commissioners of Pitkin County, provided, that the Project as finally approved is substantially the same as the Project as contemplated in this Agreement, and described in Addendum 1 and Exhibits to this Agreement. Should such development approval not be granted within one year of the date hereof, or should the Project as finally approved not be substantially the same as the Project contemplated in this Agreement and described in Addendum 1 and the Exhibits, this Agreement shall terminate, and shall be of no further force and effect. CONSTRUCTION BY COUNTY 4. Mains, Lines and Facilities. County will design and construct the water transmission and distribution mains, associated facilities and internal distribution lines for the~ Project in accordance with and subject to the City's design, materials and construction specifications and approval, at County's own expense; provided, however, that to the extent the City desires any mains, lines or facilities with capacities larger than necessary to meet the needs of the Project, the City will be responsible for the incremental cost of such enlarged or additional mains or facilities. "Incremental costs" shall be defined as the difference between the total cost of a particular facility Water Service Agreement (new developmen0 12/97 (revised 06/98) -3- Final 04-19-00 designed and constructed solely to meet the needs of the Project and the total cost of such facility as enlarged at the City's request. 5. Preconstmction Exhibits. The following exhibits concerning the Project have been prepared by County and have been reviewed and relied upon by the City in entering into this Agreement, and shall not be substantially modified without the City's agreement: Exhibit A: Description of existing facilities that will be incorporated into the water system infrastructure for the Project. Exhibit B: General Description of the Project, including facilities and uses. Exhibit C: Reduced-size copies of the schematic utility plans (dated 10/27/99, revised 03/15/00) for the water mains, interconnecting mains (loop system), and lines and facilities to be constructed pursuant to this Agreement, as approved by the City. bo Schedule for completion of the Project water mains, lines and associated facilities to be constructed pursuant to this Agreement as approved by the City. Exhibit D: aa Estimated gross water requirement (gpd) and water flow requirements for the Project for in-building use at full development, and estimated treated water irrigation requirements, including number of square feet to be irrigated with treated water. bo Fireflow provisions, including location, size and description of fireflow storage to serve the Subject Property. c. Description of general location of easements to be conveyed to the City. 6. Final Plans. The City has approved the schematic utility plans and specifications for the water mains, lines and facilities to serve the Subject Property. Final construction drawings must be submitted and approved by the City's consulting engineer at the County's expense at least ten business days prior to the pre-construction meeting. No substantial changes shall be made to the approved final plans and specifications without the City's prior written approval. County shall contact the City Water Department at least ten (10) working days prior to commencement of Water Service Agreement (new developmen0 12/97 (revised 06/98) -4- Final 04-19-00 construction to arrange a preconstruction meeting between representatives of the Water Department, the Water Department's inspector, and County's engineer and contractor to review the final plans and any minor modifications thereto, to discuss construction scheduling, the advance deposit of the City's construction inspection fees, and any other matters that the parties deem necessary. County's registered professional project engineer shall inspect and certify the design and installation of all water system mains, lines and facilities to be constructed pursuant to this Agreement. 7. Bond or Security Requirements. Prior to commencement of construction, County shall obtain one or more performance and completion bonds or other financial security acceptable to the City naming the City as a third-party beneficiary thereof, in the amount of 100% bfthe water system construction costs (including those incremental costs, if any, for enlarged or additional facilities requested by the City as provided in paragraph 4, the portion of the bonding or security attributable to such incremental costs to be reimbursed by the City) Such bonds or other security shall be in form acceptable to the City Attorney and shall ensure completion of and payment for the construction, and hold the City harmless for payment to the contractor or any subcontractors, materialmen, or others involved in the construction of the water transmission and distribution mains, interconnecting mains (loop system), lines and associated facilities, or for the provision of materials therefor. County shall assign to the City all warranties from materialmen and suppliers which warrant the water system improvements constructed by County free and clear of defects for a period of two (2) years from the date of completion of construction. In addition, County shall obtain and assign to the City (in form approved by the City Attorney) a maintenance or warranty bond or other financial security acceptable to the City equal to one hundred percent (100%) of the water service system construction costs (including those incremental costs for enlarged or additional facilities to be borne by the City, the portion of bonding or security attributable to such incremental costs to be reimbursed by the City), ensuring the proper condition and operation of such water service system for a period of two (2) years from the date of acceptance of the system by the City. 8. Conveyance of Water Ri ghts and Structures. The parties acknowledge that a partial payment in lieu of water rights and a partial well system development charge were paid in connection with the original, now expired, water service agreement covering the Subject Property (as described in paragraph 1 above), and that no portion of these payments will be refunded. However, because the Project is an affordable housing project, no additional payment in lieu of water rights or well system development charge is required or will be assessed in connection with this Agreement. 9. Construction. Upon completion of the prerequisites described in paragraphs 3 through 7 above, County shall proceed with due diligence to construct the water transmission and distribution mains, lines and associated facilities in accordance with the plans and specificatiOns and the construction schedule. No construction shall occur betweenNovember 1 and April 1 without written permission of the City's Water Department. An automated meter reading system shall be installed for ail new cUst°mer~ wh° Will be served by the proj~c( Th~ Cofini~ ~ili separately mdter the C01d Water ,Service Agreement (new development) 12/97 (revised 06/98) -5- Final 04-19'00 water supply to each unit, and hot water will be metered at the locatiOn of the shared mechanical systems as described in paragraph 17. "Pretapping" is defined as connection of an individual serVice line to a main or distribution line when the main or distribution line is installed. ShOUld COunty wish to pretap the distribUtion lines, a Pretapping Agreement will be required by the City. 10. Fees. County shall timely pay all fees imposed bY the City in connection with reviewing and approving this Agreement, the design drawings and construction plans} as well as construction inspection fees. An advance deposit for construction inspection fees shall be required at the preconstruction meeting described in paragraph 6 abOve. County Shall alSo be respOnsible for timely acquiring and paying for all permits and permit fees from entities other than the~ CitY (such as Pitkin County and/or other regulatorY agencies) necessary for construCtion of the mains, lines and associated facilities. 11. Inspection of Construction. Construction must be inspected by the City's engineers or other designated personnel prior to burial or final installation. County shall give the City Water Department reasonable advance notice when the mains, lines and/or associated facilities are ready for burial or installation, and the City's engineer or agent shall inspect said mains, lines and/or associated facilities within two working days of such notice. County shall tim61y pay all construction inspection fees. 12. Easements. County shall obtain at its own cost and convey in perpetuity to the City as-built non-exclusive easements for water mains, lines and other water facilities (if any), along with all necessary access easements for maintenance and repair purposes ("easements"). All easements on, over or through property located outside of public rights-of-way shall be surveyed at the County's cost. The water main and water line easements must be large enough to provide the City with at least ten (10) feet on either side of water mains and lines and must specify that (1) sewer lines must be located at least ten (10) feet from any water main or line, and (2) other utilities must be located at least five (5) feet away from any water main or line. Access easements and easements for other facilities shall be of a size determined by the City to be reasonably necessary for the operation, maintenance and repair of the tank or other facility to be located on such easement. Each party shall be solely responsible for any injury or damages, including costs and attorneys' fees, to persons or property arising from its own negligent acts or omissions occurring on or resulting from its use or occupation of any easement premises. Nothing contained herein, however, shall constitute or result in any waiver or diminishment of any defense or limitation available to the City and the County under the Colorado Govermnental Immunity Act or other applicable law. 13. Testing, As-Built Drawings, Acceptance and Conveyance. Upon completion of construction and before any water is delivered pursuant to this Agreement, all distribution and transmission mains and all associated water lines and facilities shall be tested. Upon approval of all Water Service Agreement (new develotmzent) 12/97 (revi.¥ed 06/98) -6- Final 04-19-00 construction, approval by the City of the test results, and delivery to the City of the required maintenance or warranty bond, surveyed as-built drawings and all required easements, the City shall accept the water system infrastructure for the Project, and it shall be conveyed (excluding individual service lines) with all necessary non-exclusive easements to the City, free and clear of all liens and encumbrances, by deed in form acceptable to the City Attorney. Performance and payment bonds (or other security) provided by County pursuant to paragraph 7 above shall be adjusted to reflect the final actual construction costs. The maintenance or warranty bond (or other security) required by paragraph 7 above must be in place and must reflect the actual construction costs prior to the Citv's acceptance of any main, line or facility. As-built drawings of the Project, including the water system and all other utilities, shall be provided to the City on reproducible sepias with a maximum size of 24" x 36", and on an "auto cad disk data transfer file" tied into one (1) set of state plane coordinates. WATER SERVICE 14. Treated Water Service. Upon completion of construction and acceptance of the water distribution and transmission mains and lines, the associated facilities and easements by the City, the City will provide treated water service to the Subject Property to no more than the total number of ECUs provided for by the approved final design drawings, provided that the maximum volume of water the City shall be required to supply each year shall not exceed the amount (in acre-feet) set forthin paragraph 1 above. Any change in the treated water service requirements for the Project will require approval by the City, and amendment of this Agreement. The treated water to be delivered by the City pursuant to the terms of this Agreement may be used for all lawful in-building municipal purposes, and for fire protection, swimming pools and the normal and reasonable outside irrigation of trees, lawns and gardens. County agrees to adopt, in a form acceptable to the City Attorney, covenants which restrict the use of treated water delivered hereunder to no more than 29,000 square feet of lawn and garden irrigation, and 16,500 square feet of native vegetation irrigation, by drip or sprinkler irrigation means. Notwithstanding the foregoing, all water use will be consistent with the City's Water Policy Resolution (Resolution No. 5, as amended, (Series of 1993)), and water conservation ordinances. 15. Raw Water Service. The City may, at its election, provide raw water for irrigation purposes on the Subject Property to the extent it is able to do so utilizing its existing ditch system, or other water rights or raw water delivery systems available to it. County understands and agrees that the City shall be the sole provider of raw or treated water for irrigation pursuant to this Agreement, and that unless this Agreement is amended, neither County nor any owner or user of the Subject Property will develop or utilize independent raw water systems and/or water rights or wells within the Subject Property. 16. Tap Fees and System Development Charges - Computation and Payment; Scheduling of Taps. Because the Project is "qualified employee housing" as defined in Section 25.12.160 of the Water Service Agreement (new development) 12/97 t'revised 06/98) -7- Final 04-19-00 Code, the Project is exempt from utility investment charges (including tap fees and well system development charges.) However, should the qualified employee housing deed restrictions be eliminated, or the water conservation devices and practices required by Section 25.12.160(c) not be installed, properly maintained, or continuously operable, the County or the owners of employee housing units, as appropriate, shall reimburse the City for the cost of the utility investment charge exemption as proGded in Section 25.12.160(d). Notwithstanding such exemption, unless a Pretapping Agreement has been executed by the County, applicable hookup charges must be paid before water service will be provided to any structure. Unless a Pretapping Agreement has been executed by the County, the City Water Department shall determine scheduling of all physical taps or connections to the main lines. 17. Service Lines and Meters. The plans for the Project require a single service line to a common mechanical room that will serve two multi-unit buildings. There will be a total of six service lines form the water mains to the common mechanical rooms in the Project. Cold water lines will run to each housing unit served by a common mechanical room, and each cold water line will be separately metered. In addition, there will be a common hot water line from each common mechanical room to each building served by that common mechanical room, and each hot water line will also be metered. Water shutoff controls will be in each common mechanical room. 18. Limitations on Provision of Water Service. This Agreement is only for the supply of treated water service as herein described and no expansion of uses, connections, or water service beyond those set forth herein and in the Addenda and Exhibits hereto is in any way authorized by this Agreement. The City is not by this Agreement prejudging, certifying or guaranteeing its ability to provide treated water service to any use or structure except as provided herein, nor may this Agreement be used as evidence of approval of any land use requests, or as evidence of approval of water service for any land use request, except as provided herein. 19. Service Subject to the City Charter, Codes, Rules, Regulations and Policies. County and its successors in interest shall be bound by, and all water service provided hereunder shall be subject to, all applicable provisions of the Charter of the City of Aspen and the Code, as well as all applicable rules, policies or regulations of the City now in effect or as may be hereafte3 adopted. 20. Rules Regarding Water Use. County agrees to adopt all provisions set forth herein as rules and regulations governing the use of water on the Subject Property and for the Project, and agrees that this Agreement and the Addenda and Exhibits hereto shall be recorded as covenants running with the land and shall be as fully enforceable on the Subject Property as if the same were situated inside the City. County agrees to assist the City in every manner reasonably possible to enforce the City's ordinances, rules and regulations made to protect purity, safety and supply of the water delivered pursuant to this Agreement, including curtailment during times of shortage, elimination of any potential cross-connections, and the utilization of water conservation devices as set forth in the Code. County also agrees to prohibit all unnecessary or unreasonable waste of water Water Service Agreement (new development) 12/97 frevi,¥ed 06/98) -8- Final 04-19-00 on the property served by this Agreement, and to make reasonable efforts to enforce such prohibition. The unreasonable or unnecessary waste of water shall be defined as set forth in the Code. 21. Source of Water Supply. The parties to this Agreement recognize that the City's water supply is dependent upon sources from which the supply is variable in quantity and quality and beyond the City's reasonable control; therefore, no liability shall attach to the citY under this Agreement on account of any failure to accurately anticipate availability of water supply or because of an actual failure of water supply due to inadequate runoff, poor quality, failure of infrastructure, or other occurrence beyond the City's reasonable control. 22. No Guaranty of Water Quality, Quantity or Pressure. The City makes no Promise or guarantee of pressure, quantity or quality of water supply for any purpose, including fire sUppression, except as specifically provided herein or as is required by apPlicable federal, state and local laWs and regulations. 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 here~der equal in quality to that furnished inside the City, 23. Property Rights in Water. All water furnished under this Agreement is provided on a contractual basis for use on the Subject Property as described in this Agreement, and all property rights to the water to be furnished hereunder are reserved to the City. Water service provided under this Agreement does not include any right to make a succession of uses of such water, and upon completion of the primary use of the water on the Subject Property, all dominion over the water provided reverts completely to the City. Subject to the prohibition against waste and any other limitations on water use imposed in this Agreement, County shall have no obligation to create any particular volume of return flow from the water furnished under this Agreement. County agrees to cooperate with the City in measuring and reporting return flows to the extent such measuring and reporting are required by the Colorado State Engineer or his agents. VIOLATIONS 24. Enforcement by the City. The parties to this Agreement recognize and agree that the City has the right to enforce its rules, policies, regulations, ordinances and the terms of this Agreement by the disconnection of the supply of water provided hereunder. Additionally, in the event that County or any user who has purchased or leased a portion of the Project or the Subject Property violates the rules, policies, regulations or ordinances of the City, the City shall have all remedies available to it at law or in equity, or as provided in the Code. Without limiting the foregoing rights and remedies, County agrees that the City may also enforce such violations by injunction, the parties agreeing that the damages to the City from such violations are irreparable, and there is no adequate remedy at law for such violations. The City shall be free from any liability arising out of the exercise of its rights under this paragraph. Water Service Agreement (new developmenO 12/97 t'revised 06/98) -9- Final 04-19-00 Notwithstanding the foregoing provisions of this paragraph 24, if an individual owner or lessee within the Subject Property (other than County) commits a violation with regard to water delivered to his owned or leased property, only that individual owner's or lessee's water s~rvice shall be disconnected, and enforcement actions will be directed toward that violator, and not toward those who are not violating this Agreement. TERMINATION 25. Termination by Agreement. 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. 26. Termination if Illegal. The parties agree, intend and understand that the obligations imposed by this Agreement are conditioned upon being consistent with state and federal laws and the Code. The parties further agree that if any provision of this Agreement becomes in its performance inconsistent with the Code or state or federal laws, or is declared invalid, 'the parties shall in good faith negotiate to modify this Agreement so as to make it consistent with the Code or state or federal laws as appropriate, and if, after a reasonable amount of time, their negotiations are unsuccessful, this Agreement shall terminate. The City agrees that its contractual obligations hereunder will not be impaired by any amendment to the Code unless such amendment (or impairment) is mandated by state or federal law. ANNEXATION 27. Annexation. Upon the request of the City, and at its sole discretion, County, or its successors in interest, shall petition for and/or consent to the annexation of the Prqiect and the Subject Property, or those portions thereof as deemed appropriate by the City, to the City of Aspen at such time(s) as determined by the City. Such annexation(s) shall not divest or diminish any land use approvals or development rights awarded by Pitkin County for the Project or the Subject Property, to the extent such approvals and rights are legally vested on behalf of County prior to annexation to the City. Land use approvals or development rights not vested in accordance with law prior to the annexation shall be subject to the terms, conditions, and regulations of the Code upon annexation. Failure of County or its successors in interest to commence and complete annexation proceedings as herein required shall constitute a material breach of this Agreement authorizing the City to terminate the same. Alternatively, failure of County or its successors in interest to commence and complete annexation as herein required shall authorize the City to commence and/or complete such annexation on their behalf, in which event the City shall charge, and County and/or its successors in interest shall pay, all costs and fees associated with such annexation. Notwithstanding annexation of all or any part of the Subject Property, this Agreement will remain in full force and effect. Water Service Agreement (new development) 12/97 rrevi,¥ed 06/98) 10- Final 04-19-00 GENERAL PROVISIONS 28. No Regulated Public Utility Status. The parties agree that by this Agreement the City does not become a regulated public utility compelled to serve other parties similarly situated. County agrees that neither it, nor its successors in interest or assigns shall at any time petition the Colorado Public Utilities CommisSion to acquire jurisdiction Over any water rate set by the City. The parties agree that in the event the City is held to be a regulated public utility by virtue of this Agreement, this Agreement shall terminate and be of no further force or effect. 29. No Waiver. 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. 30. Notices. All notices required to be given shall be deemed given upon deposit in the United States mail, first class postage prepaid, properly addressed to the person or entity to whom directed at his or its address shown herein, or at such other address as shall be given by notice pursuant to this paragraph. Copies of such notices shall also be sent in the same manner to the City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611. 31. Force Mq/eure. No party shall be held liable for a failure to perform hereunder due to wars, strikes, acts of God, natural disasters, drought or other similar occurrences outside of the control of that party, or litigation which prohibits construction of infrastructure pursuant to this Agreement, or litigation which, in the parties' reasonable judgment, renders such construction inadvisable until completion of the litigation and expiration of all applicable appeal periods. 32. Severability. If any provision of this Agreement shall be or become invalid or unenforceable, the remainder of the provisions shall not be affected thereby, and each and every provision shall be enforceable to the fullest extent permitted by law. 33. Amendment; Assignment. Neither this Agreement, nor the obligations of either party hereto, nor the right to receive water service hereunder, may be amended or assigned without the written consent of the parties hereto, provided, however, that subsequent owners of any portion of the Subject Property shall be subject to the terms and conditions of this Agreement and shall be entitled to receive water service pursuant to this Agreement without amendment of this Agreement. 34. Entire Agreement. Except as otherwise provided herein, this Agreement, including its Addenda and Exhibits, supersedes and controls all prior written and oral agreements and representations of the parties and is the total integrated agreement among the parties governing the matters provided for herein. Water Service Agreement (new development) 12/97 (revised 06/98.) -11- Final 04-19-00 35. Interpretation. Titles and paragraph headings shall not be used to alter the meaning of this Agreement. 36. Binding Agreement - Recording. This Agreement is binding upon the parties hereto, their successors and assigns, and any sale of the Project, the Subject Property, or any portion of either shall be subject to this Agreement as provided herein. This Agreement, including the Addenda and Exhibits hereto, shall be recorded with the Pitkin County Clerk and Recorder, and shall impose covenants running with the land upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this Agreement and the obligations contained herein. 37. Governing Law; Venue; Attorneys' Fees. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin County, Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict regarding the terms of this Agreement or the rights and obligations of the parties hereto, the prevailing party shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees and reasonable attorneys' fees. 38. Authorization of Signatures. The parties acknowledge and represent to each other 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. 39. Counterparts. 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 have executed this Agreement the date and year first above written. ATTEST: THE CITY OF ASPEN, COLORADO A MUnicipal Corporation and Home RUle City Water Service Agreement (new development) 12/97 (revised 06/98) -12- Final 04-19-00 APPROVED AS TO FORM: spen tzlt~j Attorney BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ATTEST: By. By County Clerk APPROVED AS TO FORM: Chair of the Board of County Commissioners Pitkin County Attorney H:\home\attach\stillwa4.wpd -13- Water Service Agreement (new developmenO 12/97 (revised 06198)