HomeMy WebLinkAboutresolution.council.118-00Series of 2000
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A PRE-
ANNEXATION AGREEMENT WITH BAR\X RANCH, LLC, AND AUTHORIZING THE
MAYOR AND THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF
THE CITY OF ASPEN.
WHEREAS, there has been submitted to the City Council a Pre-Annexation Agreement
between the City of Aspen and the Bar\X Ranch, LLC, a copy of which agreement is annexed
hereto and made a part hereof; and
WHEREAS, on August 8, 2000, the electors of the City of Aspen were asked whether
the City should enter into said pre-annexation agreement; and
WHEREAS, a majority of the electors of the City of Aspen recommended to the City
Council that it enter into said pre-annexation agreement; and
WHEREAS, the City Council believes that it is in the best interests of the City that the
development plan described in said pre-annexation be pursued at this time.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO, that the City Manager and the Mayor are hereby authorized to
execute said pre-annexation agreement and all related documents on behalf of the City of Aspen.
Dated:
Ra{chel E. Richards, Mayor~
I, Kath/yn 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 ameeting held_ ~_~~_~t~~_, 2000.
JPW-08/17/2000-G: \J °hn\w°rd\resos \ zoline-preannex, doc
PRE'ANNEXATION'AGREEMENT
BAR/X RANCH
THIS PRE-ANNEXATION AGREEMENT ("Agreement") is entered into and
made on , 2000, by and between the City of Aspen, a Colorado
home rule municipal corporation, whose address is 130 South Galena Street, Aspen,
Colorado 81611, hereinafter referred to as the "City"; and Bar\X Ranch LLC, a
Colorado limited liability company, whose address is c/o Herbert S. Klein, Esq., 201
N. Mill St. //203, Aspen, CO. 81611, hereinafter referred to as "Landowner". This
Agreement shall become effective following execution by the Landowner and upon
approval by the City Council of the City of Aspen evidenced by a duly approved
resolution and by the execution of the Agreement by either the City Manager, Mayor,
or Mayor Pro-Tem.
RECITALS AND REPRESENTATIONS
WHEREAS, the Landowner represents that it comprises 100% of all owners of
a parcel of land commonly known as the Zoline Ranch, being more particularly
described ~ Exhibit A appended hereto and incorporated herein by this reference
("Property Proposed to be Ann6xed" or "-/X Ranch"); and
WHEREAS, the Property Proposed to be Annexed is more than 1/6 contiguous
with the existing City boundaries and is otherwise eligible to be annexed into the
municipal boundaries of the City in accordance with the Colorado Municipal
Annexation Act of 1965, as amended, C.R.S. Sections 31-12-101, e___t s_.~q.; and
WHEREAS, the City and Landowner believe that it is in the best interests of the
citizens of the City of Aspen and Landowner that the development of portions of the
City owned Burlingame Ranch and the Property Proposed to be Annexed be
cooperatively planned by the parties; and
WHEREAS, the Development Plan described in this Agreement and the rights
granted to the Landowner hereby will assist in the creation of affordable housing, open
space and a reduction in free market residential density below that which would
otherwise be likely to be developed on the -/X Ranch, thus fulfilling high priority goals
of the City; and
WHEREAS, Landowner and City desire to annex the Property Proposed to be
Annexed into the municipal boundaries of the City of Aspen on condition that all of the
terms and conditions of this Agreement are met; and
WHEREAS, the parties hereto desire to submit a joint development proposal
and application to the City's Community Development Department for processing
pursuant to the
City's Land Use Code; and
WHEREAS, the parties hereto desire to condition the annexation proposed
herein and the execution of the Development Plan as described herein on the granting of
all requisite land use approvals, following public input and comment, consistent with
the City's Land Use Code; and
WHEREAS, the City is a home rule municipality of the State of Colorado and is
authorized to enter into this Agreement pursuant to C.R.S. Section~, ~,. ~.~ q l_~,)_~-~,;
and
WHEREAS, the LandoWner is, in accordance with C.R.S. Section 31-12-102,
legally .capable of submitting a Petition to Annex in a form substantially the same as
Exhibit C appended hereto.
NOW, THEREFORE, in consideration of the mutual covenants comained
herein, IT IS AGREED AS FOLLOWS:
1. THE DEVELOPMENT PLAN. The parties agree that the following
description of the proposed land use for portions of the Landowner owned -/X Ranch
and City owned Burlingame Ranch ("The Development Plan") constitutes the desired
result of this Agreement as it sets forth the best land use for the Property Proposed to
be Annexed and in the best interest of the City of Aspen. The parties believe that the
Development Plan as set forth herein is consistent with the City of Aspen Land Use
Code and the Aspen Area Community Plan.
A. DEVELOPMENT.PARCEL. The parcel of land, of approximately
acres, to be developed is depicted graPhically in Exhibit B appended hereto'~nd
shall consist of the -/X Ranch plus a portion of the Burlingame Ranch lying East
of Highway 82, less the areas of Burlingame Ranch known as Parcel B (MAA
Housing) and Parcels C, and D (the proposed U.S. West and Ventnor Avenue
Housing), the exact size to be determined during final planning and design
phases. A parcel from the -/X Ranch consisting of approximately 20 acres ("20
Acre Parcel"), the exact size and location to be determined during f'mal planning
and design, but substantially in the location as shown on Exhibit B, shall be
conveyed by warranty deed by Landowner to City at the time of recording a
subdivision plat consistent with the Development Plan. City has inspected the
acres to be conveyed to the City and deems them suitable for construction of
affordable housing as contemplated herein.
B. ZONING O~F PROPERTY PROPOSED F__Q_OR ANNEXATION. Subject
to all applicable processes and approvals, the parcel of land proposed for
development shall be zoned Affordable Housing/Planned Unit Development
(AH/PUD) pursuant to Section 26.710.110 of the Aspen Land Use Code, as
amended from time to time. The development application shall include a request
that it include a Specially Planned Area (SPA) overlay requesting a variance in
permitted uses within the underlying zone district to allow agricultural,
equestrian, recreation, or open space activities, and cultural and academic
activities within the Fathering Parcel. The detailed description of such uses and
any restrictions or conditions concerning them shall be determined in the SPA
land use review process. It is understood that no high intensity agricultural uses
such as hog farms, feed lots or large-scale animal or food processing operations
will be permitted. The parties acknowledge that the AH/PUD zone district is an
incentive zone district to provide for the use of land for the production of
category 1, 2, 3 and 4 affordable housing and resident occupied lots and units
(as defined by the AsperffPitkin County Housing Authority Guidelines). The
parties further acknowledge that the zone district requires that affordable
housing and resident occupied units must comprise at least seventy (70%)
percent of the total bedroom mix in the development (hereinafter the
"Affordable Housing Component"). In addition, only thirty (30%) percent of the
development's bedrooms may be located within the free market units
(hereinafter the "Free Market Component").
C. DEVELOPMENT RIGHTS. The Development Plan anticipates and it is
of the essence of this Agreement that the development rights and restrictions set
forth below shall be applied for by the parties herein to the City's Community
Development Department Pursuant to and consistent with the standards and
procedures set forth in the C' '
~ty s Land Use Code. In the event that by
December 31, 2001, or such later date.as may be mutually agreed upon by the
Parties hereto, the Aspen City Council 'does not approve, the requisite land use
applications with terms and conditions consistent with this agreement and other
conditions reasonably acceptable to Landowner, this Pre-annexation Agreement
shall be deemed null and void.
Free Market Lots. Landowner shall have the right to develop a
total of 12 free market lots, plus one ranch compound known as
Lot F, the Fathering Parcel, and one cabin by Maroon Creek.
The locations of the free market lots, the Fathering ParceI, and
cabin site are shown on Exhibit B appended hereto. The right to
build a cabin shall be subject, however, to Landowner being able
to satisfy reasonable requirements for the provision of fire and
emergency services; provided, however that due to the desire to
avoid direct, year round, road access to the cabin, alternative
access such as via a stairway or funicular will be permitted and in
such case the cabin shall be sprinklered, a fire hydrant, hoses and
other non-vehicular fire fighting equipment shall be placed at or
near the cabin and the Landowner shall execute a waiver and
release of claims in favor of the City and all emergency service
providers for any injuries, death, or property damage which may
occur due to the absence of a year round road to the cabin.
Fr~ee Market Lots - FAR. The allowable floor area of houses,
exclusive of accessory buildings, on each of the 12 lots shall be
7,500 square feet. The .allowable floor area of each house may
be increased to 10,000 square feet with the purchase and
extinguishment of a Transferable Development Right (TDR) from
Pitkin County that may be, on the effective date of this
Agreement, used in the Metro Area of Pitkin County (lands that
drain through the Roaring Fork River at Gerbazedale). The floor
area shall be measured by using the City floor area regulations
for square footage inclusions and exclusions as calculated under
the City code ,provisions in existence on June
event that TDR s are not available for ,,urc~, ....
~1, 2000. In the
effort
~ ~,,,~c a~er a reasonable
is made to do so, a payment-in-lieu, equivalent to the cost
of a TDR, shall be made to the City's Housing Fund in order to
increase the allowable sizes of the houses up to the maximum
stated herein. The equivalent cost of TDR's shall be the average
price of the last four (4) TDR's traded in arms-length transactions
in Pitkin County.
Fr~ee Market L~ots - ~ ~ etc___.~ The lot sizes within
the Free Market Component shall be as shown on Exhibit B.
Building envelopes and areas of potential diSturbance during
construction activity for each parcel shall be determined during
the land use approval process contemplated herein. All urban
landscaping within the building envelopes shall be limited to
within 100 feet of building exteriors. Landscaping, ponds, fences,
and ranch, farming, equestrian and recreational uses and
accessory structures associated with equestrian activities shall be
allowed outside of building envelopes on all lots. The remainder
of the land shall be subject to protective covenants that limit its
use to agricultural, equestrian, recreation, cultural, academic or
open space uses or otherwise incorporated into ranch use. Ail
lands that are subject to the protective covenants shall be limited
to the above uses or shall be required to remain in their natural
vegetative state. The term "natural vegetative state" may include
the introduction of indigenous plant and tree species.
Fr__r~ee Market L~ots - ~ ~ Units_. Each house
within the Free Market Component, other than the Fathering
Parcel, shall include an Accessory Dwelling Unit (ADU) with a
minimum of 600 square feet and a maximum of 1,000 square
feet. Each ADU required to be constructed shal/be constructed at
the same time as the construction of the house of the Free Market
Component to which it is attributable. The ADU's shall be
subject to the occupancy requirements and allowances of the
City's ADU regulations in effect on June 1, 2000. The square
footage of the ADU's shall not be included in the calculation of
square footage for the free market units. The ADU's may be
either attached to the main residence or may be detached. The
requirement to build an ADU may be exempted with the purchase
and extinguishment of a Transferable Development Right (TDR)
from Pitkin County that may be, on the effective date of this
Agreement, used in the Metro Area of Pitkin County (lands that
drain through the Roaring Fork River at Gerbazedale). In the
event that TDR's are not available for purchase after a reasonable
effort is made to do so, a payment~in-lieu, equivalent to the cost
of a TDR, shall be made to the City's Housing Fund in order to
exempt the ADU requirement. The equivalent cost of TDR's shall
be the average price of the last four (4) TDR's traded in arms~
length transactions in Pitkin County. (Each purchase and
extinguishment of a TDR shall be designated for use as either an
exemption of the requirement to build an ADU or to increase
FAR 0
Free Market Lots. Maroon Cr_Qr~_eek ~ Construction on
the free market lots shall not impact the "Maroon Creek
Viewplane" as depicted on Exhibit B. The purpose of the
Maroon Creek Viewplane is to ensure that no rooms, decks, or
lighting create an adverse visual impact as viewed from the floor
of the Maroon Creek Canyon in the area below each homesite.
The General Declaration of Covenants, Conditions and
Restrictions to be imposed upon the free market lots shall include
a covenant restriction requiring, prior to construction on any such
lot, a site specific analysis by a certified surveyor or engineer
demonstrating that the proposed construction does not impact the
Maroon Creek Viewplane. The City of Aspen shall be a
beneficiary of this covenant.
Th._~e ~ ~. The Fathering Parcel shall be permitted to
have one main residence, up to three (3) additional residences and
one cabin. The final PUD Agreement shall contain a provision
that prohibits any further subdivision of the Fathering Parcel. The
allowable floor area for the residences on the Fathering Parcel
shall be a total of 15,000 square feet for a main residence and up
to three (3) other residences. The total FAR of 15,000 square feet
may be increased to a total of 18,000 square feet with the
purchase and extinguishment of two (2) TDR's from Pitkin
County. The total FAR may be divided among the four houses at
the option of Landowner. The Cabin located at the Cabin site as
shown on Exhibit B, shall have an allowable floor area of 1,500
square feet. Floor areas shall be measured by using the City floor
area regulations 'for square footage inclusions and exclusions as of
June 1, 2000. All non-residential ranch · -
excluded in the calc,,~o- ..... buildings shall be
· --~,~ ut pernutted floor area
a_cknowledges and a~rees ~ho, ,~. .... . City
aevelopment on th.~ ~,o~..,_ . ~,~ L~. rights granted herebv
~ vamermg l~arce! are exempt from the ~ity'~
GMQS due to the extent of the lawful pre-existing development
and residential uses on the ~IX Ranch, which has 'grandfathered
legal status under current Pitkin County Zoning and Pursuant to
the provisions of the AH/PUD Zone. Notwithstanding the above,
if any existing residentia1 unit on the Fathering Parcel is replaced
with a new unit that exceeds 4,000 square feet in area, then, as
described in Section 4 above, an ADU shall be either constructed
or be exempted by the Purchase and extinguishment of a TDR
from Pitk/n County in the same manner as for other Free Market
Units.
~ All fencing in or surrounding the free market lots shall
be of a design,of type andasmaterialconsistentthat is approved by the Colorado
Division Wildlife with ranch operations and
which does not unreasonably impede the movement of wildlife,
except that fencing along Old Stage Road and fencing between the
Free Market Component and the 20 Acre Parcel may be installed
which protects agricultural operations, including, without
limitation, the grazing of cattle and horses, and other land uses,
from interference by trespassers.
T.T_~he Cabin. The site of the cabin shall be as shown on Exhibit~ ~,
which site Land shall Use be Code subject or to Sec. 26.435.040 of the City
Aspen anY other provisions of said Code of
related . to aesthetics, wildlife migration corridors, trail
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development, river impacts and other similar matters. Any
change in the location of the cabin site may require, if applicable,
its development to be reviewed and approved by the Planning &
Zoning Commission pursuant to the standards of review set forth
at Section 26.435.040 of the City of Aspen Land Use Code or
any other applicable provisions of said Code related to aesthetics,
wildlife migration corridors, river impacts and other similar
matters in effect on the date of this Agreement. Landowner
understands that construction of the cabin may cause
unreasonable disturbance to wildlife during certain times of the
year. According/y, Landlord agrees to limit the construction of
the cabin to those periods of time determined to be reasonable by
the City during the land use approval process. Following the
construction of the cabin, Landowner shall be responsible for the
complete restoration of any construction access roads or utility
access easements required during construction. The lot containing
the cabin shall be burdened with restrictive covenants that (i) if
approved by the Fire Marshall pursuant to Paragraph 1C. 1 above,
prohibit the construction of a future access road to the cabin site,
(ii) limit lighting of the cabin to periods of time when it is
occupied, and (iii) prohibit dogs on the cabin site at all times.
Vested_ ~ The land use approvals and GMQS allotments
received by Landowner shall vest for a period of twenty-five (25)
Years'or such longer time as may be al/owed under any applicable
/aw, regulation or court decision. The vested rights shall last for
a period of 25 years after the date the final PUD and subdivision
plat is recorded. Such vesting shall apply to all the rights and
entitlements set forth in this Agreement and the final development
order for the Free Market Component. As a condition of the
annexation of the -/X Ranch, the parties shall enter into a
development agreement that sets forth the requisite findings to
support this extension of vested rights in accordance with CRS
24-68-104(2).
10.
Further. Subdivision, The Free Market Component, including the
Fathering Parcel, shall be deed restricted in perpetuity against
any further subdivision, except that this restriction shall not limit
an amendment to the development plan which results in
residential density that is equal to or less than the density
approved under this Agreement and the final development plan
for the -/X Ranch.
12.
13o
11.
Vacation o__f Sta~ Road. Stage Road is a Pitkin County Road.
The City shall request Pitkin County as part of the land use
process to privatize Stage Road east of the eastern boundary of
the Soldner property; provided, however, that adequate
provisions are made to ensure that other properties served by
Stage Road (Caudill and Harvey properties) are not f'mancially
harmed by any new arrangements for access to their properties
and that maintenance of the road will be undertaken without
additional cost to the Caudill and Harvey properties at their
current densities. In the event that Pitkin County vacates that
portion of Stage Road, non-exclusive easements shall be granted
for access and underground utilities to the Harvey and Caudill
properties. The portion of Stage Road sought to be vacated and
the location of the easements to be granted are illustrated on
Exhibit "E" appended hereto.
Ranch ~ R__QO L_~ot. City shall approve one residential lot,
zoned AH/PUD, contiguous to Burlingame Village on land
owned by LandOwner for a single Resident Occupied Unit, as
shown on Exhibit B ("Ranch Manager's House"). This lot shall
remain the property of Landowner, and shall have the right to
connect to (1) the Burlingame Village public road system, and (2)
adjoining.Burlingame Village utilities. Landowner shall have the
right to use this lot in any manner al/owed by the City of Aspen
Municipal Code and the Aspen/Pitlcin County Affordable Housing
Guidelines, including retaining or disposing of title provided that
the lot is occupied by an employee engaged for employment on
the -/X Ranch. Before the recordation of the final Plat,
Landowner shall prepare for the City Attorney's review, a deed
restriction cons/stent with this paragraph to be recorded for this
RO unit. Said RO unit shall not be counted towards the 225 units
proposed as part of the Affordable Housing Component of the
project. The cost of building the RO unit shall be borne entirely
by Landowner, including the cost of any utility lines such as
water, electric, cable, etc.
Water Ri_..~.~_h~. The Free Market Component, including the
Fathering Parcel and Resident Owned Ranch Manager lot, and
the Cabin, shall receive City water in accordance with the Water
Service Agreement appended hereto as Exhibit F. Among other
things, the Water Service Agreement provides that Landowner
shall convey to the City (in a form acceptable to the City
Attorney) certain water rights described on Addendum 1 (the
ealcated Water
Rights.") Rights" and the "Dedicated Raw Water
Such conveyance shall be a prerequisite to provision of
water service pursuant to the Water Service Agreement. The City
and Landowner agree that said water rights are believed to be
sufficient in quantity and quality to al/ow the City to divert a
quantity of water which is necessary, without administrative
curtailment, to meet the amount of water required for treated
water needs of the Free Market Component, including the
Fathering Parcel, Resident Owned Ranch Manager lot, the Cabin
referred to in Exhibit G and the raw water requirements for
irrigation of the open space associated with the Affordable
Housing Component, as conditioned and described in further
detail in the Water service Agreement attached hereto. There
shall be no material en/argement of historic water use on the
Property to be Annexed. The parties acknowledge that there may
be reconfiguration of areas irrigated, means of irrigation, and
water uses.
Landowner shall be solely responsible for obtaining any water
rights, changes of water rights, and augmentation plans necessary
to permit storage of water for any requirements or needs of the
Free Market area.
In connection with its conveyance of water rights to the City,
Landowner shal/contemporaneously convey to the City (in form
mutually acceptable to the City Attorney and Landowner) a
proportionate interest in any ditches, flumes, headgates or other
structures and easements, or rights therein, necessary to utilize
such water rights. Such conveyance shall be a prerequisite to
provision of water service to the Subject Property. Landowner
will also contemporaneously provide to the City all information in
its possession, or available to it, regarding the historic use of said
water rights, including wel/pumping records, diversion records,
irrigation records, aerial photographs,
· · · ' affidavits, and al/ other
available information concerning the use of said water rights.
City shall, through the Wi/low and Herrick Creek Ditch
Company or by other means agreeable to both parties, pay its fair
share of operating, maintenance, management, professional and
legal costs associated with the provision of surface irrigation
water to the 20 Acre Parcel through the Wi/low Creek Ditch and
other distribution ditches.
14.
~ Demand a~ggg,~!~.l' The parties hereto
understand that it is the intention of each to develop a project that
reduces the use of the automobile. Accordingly, it is the intention
of the parties hereto to consider during the land use approval
process, certain automobile disincentives programs commonly
referred to as Transportation Demand Management systems
(TDM's).
D. AFFORDABLE HOUSING DEVELOPMENT OBLI ,
City shall assume all obligations an ..... :~,__, _ _ ~- O, BLI. GATIONS. The
d -oo~,,,~at~u costs to aevelop the Affordable
Housing Component of the AH/PUD zone district. The Affordable Housing
Component shall be bui/t within the parcel to be conveyed by the Landowner to
the City and within an adjacent area of the Burlingame Ranch. The affordable
housing to be constructed shall be located in the general area within the acreage
as i/lustrated in Exhibit "B"; the exact location to be determined during final
planning and design. The City agrees that the conveyance of the acreage by the
Landowner to the City and the C' ' ·
lty s obligation to improve such land and plat it
into lots, fully satisfies all obligations of the Landowner to provide the
affordable housing necessary to support its Free Market Component
development and that such conveyance and method of satisfying such obligations
fully complies with all applicab}e City housing and /and use regulations and
Aspen/Pitkin County Housing Authority regulations. The Affordable Housing
Component shall be developed at a density of no greater than 225 unity. The
parties agree that the City is responsible for constructing the minimum number
of affordable housing bedrooms necessary to comply with the requirements of
the AH/PUD zone district, based upon the 70/30 bedroom ratio as set forth in
Exhibit G. The City retains the right, in its sole discretion to develop additional
units up to the maximum of 225 units, including the Required Affordable Units
referred to in Exhibit G.
The City's obligation to develop affordable housing units shall include a good
faith effort to develop such units on a schedule commensurate with the
development of free market units by the Landowner. The City shall receive a
Certificate of Occupancy for three (3) affordable housing units at or before the
time each free market lot development receives final building inspections, until
such time as the City has developed the minimum number of affordable housing
required by the AH/PUD zone district. The development of the free market
residential lots shall not be delayed or hindered in any way in the event the City
fails to develop the affordable housing units in accordance with this Agreement.
E. N__.QO DEVELOPMENT I~N THE BACK BOWL AREA AND
CO_NSERyATION EASEMENTS ON ~ -- ---
shall not develo o~ ~ BURL- INGAME RANCH The it,,
P, sell for d~velopment, the area depicted as the Back BCo'~I
10
Area on Exhibit B. The City shall place a conservation easement on the parcel
dedicating the parcel to Open Space in perpetuity. City shall place conservation
easements to the benefit of the City and the Aspen Valley Land Trust or other
similar organization that prohibit further residential development on all of the
Burlingame Ranch east of State Highway 82, except for the Development
Parcel, Parcel B (the MAA housing projec0, Parcels C and D (US West and
Ventnor Avenue Housing projects) and a 150 foot wide strip or to the toe of the
slope (whichever is wider) of the Burlingame Ranch which adjoins highway 82.
The conservation easement shall be based upon a wildlife management plan to
maintain the integrity of the Back Bowl Area. Such plan shall be developed
during the/and use approval process.
F. DOGS. In order to protect wildlife, ranch cattle, horses and other
livestock from harassment, the General Declarations of Covenants, Conditions
and Restrictions to be imposed on both the Free Market and Affordable Housing
Components shall include provisions and penalties that prohibit dog ownership
(other than farm dogs belonging to owners or employees of the Fathering Parcel
and specially trained service dogs for use by visually impaired persons or
persons with other medical needs.) The respective homeowners associations
shall be required through appropriate covenants to vigorously enforce these
restrictions. No dogs shall be allowed on the cabin site, including dogs
belonging to the owners of the Fathering Parcel.
G. pARKs AND PLAy FIELDS, City may construct play fields, including
without limitation, baseball or soccer fields, within the land conveyed by
Landowner to City. The City shall neither include any such fields as part of the
City's recreation program nor shall the City schedule any organized activities of
the City on these fields. Members of the homeowners association shall convey
title to any such fields to the homeowners association of the Affordable Housing
Component with appropriate covenants ensuring maintenance and enforcement
of regulations for their use.
H. JOINT PLANNING OF T.T_H_~HE PROPERTY PROPOSED TO BE
ANNEXED. -- ~
The parties recognize that, notwithstanding their underst
regarding the development ~tnd~g
proposal and potential affordable housing obligations
set forth above, additional planning-and design will be required before final land
use applications can be submitted to the City's Community Development
Department. The parties hereto agree to cooperatively and jointly plan and
design the development of the Affordable Housing and Free Market
Components of the Property Proposed to be Annexed in a manner consistent
with this Agreement and the exhibits appended hereto. The parties further agree
that they will perform their obligations under this agreement in a timely fashion.
11
a. ~ Costs_ The City shall be responsible for the cost of filing
fees and preparing all documents and applications for the following:
i. Pre-annexation Agreement
ii.... Annexation Petition and Plat.
m. Rezoning Application for initial AH/PUD designations
and zoning code amendments.
b. Joint Costs.~ The City and Landowner shall be jointly responsible
for the cost of obtaining any site-Specific development plan approvals.
The City shall be responsible for those costs directly attributable to the
Affordable Housing Component, and Landowner shall be responsible for
those costs directly attributable to the Free Market Component, including
the Fathering Parcel. Where costs are incurred for items that are
attributable to both components and cannot be directly apportioned to
one or the other, the costs shall be apportioned on an equal (50/50) basis.
c. Conservation Easements. Areas within the Property Proposed for
Annexation and Burlingame Ranch that shall be reserved for
conservation easements, including easements on irrigated lands, the
Maroon Creek corridor, and portions of Burlingame Ranch are identified
on Exhibit "B".. Once the annexation has taken place and the Appeal
Period, as defined at Section 20, below has expired, or any other matter
which affects the development, having been challenged, the parties agree
to execute all requisite easement documents in substantially the same
form as the document appended hereto as Exlfibit "E".
d. ~Public Trails_. The parties agree that no public trails shall be
required to be dedicated or created within the Property Proposed to be
Annexed, except that trails shall be located within the right-of-way of the
entry road to the Burlingame Ranch from Stage Road to the Affordable
Housing Component. ~Exlfibit "B", appended hereto illustrates the
location of all proposed trails. Said trails shall be designed and built in
conformance with trail standards established by City's Parks Department
for various trail types based on proposed usage, terrain and costs, and
shall be maintained at City's sole cost and expense. City shall undertake
reasonable efforts to create a trail through property presently owned by
the Aspen Valley Land Trust, connecting the Burlingame Ranch to the
Aspen Airport Business Center. The parties agree that the parties shall
adopt a Trail Management Plan for all trails within the Affordable
Housing Component as part of the land review process for the project.
12
e. Cost of roa_og~ds utilities an___d trails. City, at its sole
expense, shall construct and install such roads, utilities and trails as are
required for the construction of the Affordable Housing Component.
Where such utilities shall also serve the Free Market Component they
shall be sized to accommodate both. Not later than thirty (30) months
(which may be extended by mutual agreement of the parties) after the
recording of the final plat map for the Free Market Component, City, at
its sole expense, shall have extended roads and utilities to the locations
shown on Exhibit D. City shall be reimbursed by Landowner for one-
third of Landowner's share of the total installation cost of the particular
utilities provided at the time of issuance of a building permit for the first
of the 12 free market lots which applies for a building permit.
Landowner shall reimburse City an additional one-third of Landowner's
share of the total installation cost of the particular utilities so requested .
and provided at the time of issuance of a building permit for the second
of the 12 free market lots which applies for a building permit. City shall
be reimbursed the remaining amount of Landowner's share of the total
installation cost of the particular utilities so provided at the time of
issuance of a building permit for the third of the 12 free market lots.
Said reimbursement shall be made together with interest at the rate of
8 % per annum computed from the date said funds were advanced by City
to the date of reimbursement. In addition, at the same time as
reimbursements are required as set forth above (i.e., one-third each at
the first, second and third building permits), Landowner shall reimburse
for Landowner's share of the cost of installation of utilities provided to
the Property to be Annexed which are to be shared by the Affordable
Housing Component and the Free Market Component, including the
Fathering Parcel, including, without limitation, any redundant looped
segments which are constructed for the primary benefit of the Free
Market Component and the Affordable Housing Component, based on
the ratio of ECUs in the Free Market Component, including the
Fathering Parcel, to the ECUs in the Affordable Housing Component.
Exhibit G shall be used to estimate the number of ECU's in the Free
Market and Affordable Housing Components. Adjustments to the initial
charge for the Free Market Component shall be made upon final
construction of all residences in the Free Market Component. An "ECU"
as def'med in the Aspen Municipal Code, is a "unit reflecting that part of
the capacity of the [City] water system necessary to serve a standard
water customer, with multiples or fractions of the unit including a
maximum number and type of water fixtures, a maximum irrigated area,
certain cooking facilities, or other water demand factors." Aspen
Municipal Code § 25.08.060(e). Shared utility segments are shown on
Exhibit D.
13
f. Access and_ Utility Easements. The access to the Affordable
Housing Component of the Development Plan shall be as shown on
Exhibit B. Landowner shall convey the access road right-of-way
easement shOwn on Exhibit B and an underground utility easement to the
City. The right-of-way easement shall be a maximum of sixty (60) feet
wide which shall accommodate a road, parallel trail, and a berm with a
height of five feet above the adjacent finished grade of the road along the
boundary of the Free Market Component, or some other landscape
solution mutually acceptable to City and Landowner that is designed
through natural landscape design that considers protection of the adjacent
agricultural use from traffic impacts. The parties shall endeavor during
the land use review process to minimize the width of the right-of-way to
accommodate the uses proposed in the previous sentence. The final
design of the access road and its related components and landscaping
shall be developed through the land use approval process. The road shall
be built in accordance with any requirements imposed by the Fire
Marshal.
2. SCHEDULE FOR ANNEXATION
a Upon execution by the parties of this Agreement, City shall, at its cost,
prepare an annexation map of the Property Proposed to be Annexed.
b. Upon completion of the annexation map, Landowner shall execute the
Petition to Annex appended hereto as Exhibit C. Said petition shall be
conditional upon the terms and conditions of this Agreement.
c. City shall prepare, at its cost, all requisite documents and applications
necessary to annex the Property Proposed to be Annexed, and a rezoning
application to re-zone the Property Proposed to be Annexed to the AH/PUD
zone district and the amendments thereto referred to in paragraph lB above
(conditional upon annexation).
d. City shall initiate, at its cost, annexation and the re-zoning application in
accordance with the City's Land Use Code.
e. Upon conditional approval of the re-zoning application the City and
Landowner shall cooperatively and jointly prepare, at their joint expense, as
provided for in this Agreement, an application for a Development Order for
both the Affordable Housing and Free Market Components of the Development
Plan meeting all the requirements of the City's Land Use Code. The application
for a Development Order shall specifically state that all land use approvals shall
14
be conditiOnaI upon annexation of the Property Proposed to be Annexed.
f. Upon the granting of all requisite land use approvals by the Aspen City
Council, evidenced by the adoption of an appropriate Ordinance (conditional
upon annexation of the Property Proposed for Annexation) that is consistent
with the Development Plan, City shall annex the Property Proposed to be
Annexed into the municipal boundaries of the City.
g. Landowner and City shall execute at the conclusion of the Appeal Period
(as defined at Section 20, below) following the date of annexation, a Subdivision
and Planned Unit Development Agreement which incorporates the terms and
conditions of the Development Plan as finally approved by the issuance of a
Development Order. The Subdivision and Planned Unit Development
Agreement shall include standard City Terms and Conditions relating to plats,
wastewater and surface drainage, utility connections, trash and recycling
removal, snow removal, fire sprinklers, sidewalk and trail construction and
maintenance, driveway, curb and gutter improvements, street lighting,
excavation plans, parking and staging areas, street construction, and
maintenance, stream bank disturbance mitigation, dust control measures,
setbacks, as-built drawings, fireplaces and woodstoves, residential design
standards, survey monumentation and restrictions, exterior lighting, school land
dedication fees, park dedication fees, landscaping improvements, financial
security for public .improvements and landscaping, and other similar matters
normally' and routinely included in such agreement, except as such matters are
specifically addressed otherwise in this Agreement, the Development Order or
the zoning for the annexed areas.
City also agrees that, because of its rural character and location outside of the
City's street grid system, the Residential Design Standards of Chapter 26.410 of
the Aspen Land Use Code, and the requirements for street paving, sidewalks,
curbs and gutters, shall not be applied to the Free Market Component, including
the Fathering Parcel. Landowner, as part of the land use approval process shall
propose and agree to adopt design standards that are appropriate for the Free
Market Component..The homeowners' association for the Free Market
Component shall be responsible through covenants running with the land to
enforce the adopted design standards.
3. LANDOWNER'S OBLIGATION. Landowner hereby agrees to annex the
Property Proposed to be Annexed into the municipal boundaries of the City of Aspen
upon the terms and conditions set forth in this Agreement. Landowner hereby agrees
not to withdraw its consent to annex or to thereafter petition to de-annex provided all of
the terms and conditions of this Agreement are met. Landowner shall grant all
easements to the City necessary for access or utilities as shown on Exhibit B.
15
4. .CITY'S OBLIGATION.
a. ~ ~ ~with Res~ t.__o Annexation. City agrees to annex the
Property Proposed to be Annexed provided all of the terms and conditions of
this Agreement are met. The parties acknowledge that annexation and zoning
are subject to the plenary legislative discretion of the City Council of the City
and the rights of referendum and initiative reserved unto its citizens.
Notwithstanding any language to the contrary contained in this Agreement, no
assurances of annexation or zoning have been made or relied upon by
Landowner.
b. _Ci_ty's ~_with Respect to Access. City shall provide sufficient legal
and physical vehicular and pedestrian access to the Burlingame Ranch and the -
/X Ranch so that the development of the Affordable Housing and requisite Free
Market Components contemplated by this Agreement can be undertaken. If
necessary, City shall utilize its condemnation powers to obtain such access at its
sole cost and expense. City shall not enter into any agreement nor permit any
action to occur by it or third parties which will, or may, diminish or alter the
existing access rights and conditions pertaining to the Land to be Annexed,
without obtaining the prior written consent of Landowner. Prior to the
conveyance of the 20 Acre Parcel to City, City shall provide to Landowner
evidence of such access, 'and if necessary written conveyances, agreements
and/or confn'mations of, such access rights from owners of land or easement
rights over which such access runs, which shall, in Landowner's reasonable
judgment, demonstrate that Landowner has a present, enforceable right to such
access. In 'the event City fails to provide such access, Landowner may, at its
option, nevertheless, convey the acreage to City and if such conveyance is
made, Landowner shall have the right to process and obtain approvai for the
Free Market Component of the development and City shall be responsible for
providing the minimum number of affordable housing units' necessary for the
free market development to comply with the requirements of the AH/PUD zone
district.
LANDOWNER'~ REMEDY .FoR DEFAULT B___Y.CITY_.
a. In the event that, any action herein contemplated is not taken by the City,
then Landowner's remedies for the breach hereof may include the withdrawal of
the annexation petition by Landowner, the right to reimbursement for
Landowner's costs and fees, including reasonable attorney fees, incurred in the
negotiation, drafting and/or Landowner's performance of this Agreement or in
Landowner's performance of any acts required of City hereunder and all the
costs incurred as a result of City's breach, including, without limitation, the
preparation and processing of the development plan, and any attorney fees
16
10. GOVERNING LAW AND ENFORCEMENT. This Agreement shall be
governed by the laws of the State of Cglorado. The parties agree and acknowledge that
this Agreement may be enforced at law or in equity as a contractual obligation
consistent with annexation agreements. Thus, this Agreement is intended to provide a
contractual relationship between the City and the Landowner to ensure compliance with
all rights and requirements contained herein. In addition to any other available
remedies, it is understood and agreed that the City may withhold or revoke any permits
or certificates, including but not limited to building permits and certificates of
occupancy, for any lot within the Property Proposed to be Annexed in the event of a
breach of this Agreement by the Landowner. The prevailing party in any litigation
between Landowner and City concerning this Agreement shall be entitled to an award
of its attorney fees and costs.
11. _ADDITIONAl: DOCUMENTS 'OR ACTION. The parties agree to execute any
additional documents or take any additional action that is necessary to carry out this
Agreement.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be deemed an original and all of which shall
constitute but one and the same instrument.
13. PARAGRAPH. CAPTIONS. The captions of the paragraphs are set forth only
for the convenience and reference of the parties and are not intended in any way to
define, limit or describe the scope or intent of this Agreement.
14. INTEGRATION AND. ..AMENDMENT. This Agreement represents the entire
agreement between the parties and there are no oral or collateral agreements or
understandings. Only an instrument in writing signed by the parties may amend this
Agreement.
15. ASSIGNMENT. All or part of the rights, obligations or responsibilities set
forth in this Agreement may be assigned by the Landowner to an entity in which the
Landowner or its affiliates have an interest, without requiring the consent of the City.
16..SEVERABILiTY~. Invalidation of any of the provisions of this Agreement or
anY paragraph sentence, clause, phrase, or word herein or the application thereof in any
given circumstance shall not affect the validity of any other provision of this
Agreement, except that if such invalidation diminishes the rights of Landowner,
Landowner may elect to terminate this Agreement and render it null and void.
17. RECORDATION OF AGREEMENT z TERMS RUN WITH THE LAND. The
City shall record this Agreement with the Clerk and Recorder's Office of Pitkin
County. The City shall pay the reasonable cost of recordation of this Agreement. The
18
terms, conditions, rights and benefits of this agreement shall run With the lands to be
annexed hereunder.
18. INCORPORATION .OF EXHIBITS. Unless
Agreement, exhibits referenced in this Agreement shall
Agreement for all purposes.
otherwise stated in this
be incorporated into this
19. ACTIONS AGAINST ANNEXATION AND DEVELOPM
that any person, corporation, special district, municipal or court ENT. In the event
other ty government, or any
entity or person asserts any claim against the City, its officials, or employees
pursuant to the provisions of the Colorado Municipal Annexation Act, C.R.S. § 31-12-
101 et .seq., or asserts any other claim, baSed on any theory of law whatsoev6r,
challenging the rezoning and development of the -/X Ranch, or the approval of the
Development Plan as contemplated by this Agreement, City shall vigorously defend
against such an action and may consent to and permit the entry by the court of an order
voiding the annexation or reach another means of settlement of claims, provided that no
consent to an order voiding the annexation or settlement which adversely affects the
Landowner's rights hereunder or under any development approvals contemplated
hereby, shall be entered into without Landowner's written consent. City's defense of
any such action(s), shall also include the vigorous defense, at its sole cost, of the
interests of the Landowner. If by reason of such suit this Agreement is found to be void
or unenforceable, then as between City and Landowner, this Agreement shall become
null and void, and if at such time the annexation of the -/X Ranch has already occurred,
City shall, upon a petition for de-annexation submitted by Landowner, approve the de-
annexation of the -/X Ranch and, if the acreage conveyed by Landowner has been
conveyed to the City then City shall re-convey the acreage to the Landowner.
20. APPEAL PERIOD. Any time period established by this Agreement upon one
or the other party to take any action shall be suspended until the expiration of any
jurisdictional appeal time for the initiation of a judicial challenge to any action taken by
the City or the time permitted for the initiation of an initiative or referendum challenge.
If the annexation of the Property Proposed to be Annexed, any requisite land use
approval, or any action required by the City is challenged by a referendum or initiative,
or is subjected to a judicial court proceeding, all provisions of this Agreement, together
with the duties and obligations of each party, shall be suspended pending the outcome
of the election or court proceeding ~(including any appeals). If the referendum,
initiative, or court challenge results in disconnection of the Property Proposed to be
Annexed from the City, then this Agreement shall be null and void and of no further
effect. If the referendum, initiative, or court challenge fails, then the parties shall
continue to be bound by all of the terms and provisions of this Agreement and any other
agreements made in connection therewith.
19
21. CITIZEN MANAGEMENT O__.F GROWTH INITIATIVE. The parties hereto
are aware that a citizen initiative entitled the "Citizen Management of Growth"
initiative has been proposed for the November, 2000, state election. If the electorate of
the state of Colorado approves that initiative, it may have an impact upon the schedule,
procedures, steps and development plan as set forth in this Pre-annexation Agreement.
Accordingly, the parties hereto hereby agree that in the event that the electorate
approves the Citizen Management of Growth initiative and that the state Constitution is
amended as proposed in the initiative, that this Pre-annexation Agreement shall be
amended, as needed, to comply with the requirements of the initiative.
22. TITLE. Whenever there appears a requirement to dedicate or convey land to
the City, Landowner shall.provide a title policy that shall indicate that the property is
free and clear of all encumbrances whatsoever which would impair the use of the
property as proposed in this Agreement or in any further document. Further, said title
policy shall show that the property to be dedicated or conveyed to the City is free and
clear of all encumbrances which would make said dedications or conveyances
unacceptable to the City as the City, in its sole discretion, determines. Should such title
policy reflect encumbrances that may impair the use of the property as proposed or
which would make the dedications or conveyances unacceptable, the City may take
whatever action or seek whatever remedies it deems advisable, including without
limitation disconnection from the City of the Property Proposed to be Annexed, if
already annexed into the City, ..withholding of any development reviews, or declaring
this Agreement null and void however City shall not have any right to seek damages
against Landowner.
23. PROPERTY .TAX .VALUATION. Any owner of a lot within the Free Market
Component, other than lots within the Fathering Parcel, who improves a lot or lots with
residential improvements Which result in a new property tax classification for such lot
or lots based on a change of use from agricultural to residential shall be forever barred
from subsequently applying for reclassification of such lot or lots to anything other than
a "residential rea/ property" category for property tax valuation and assessment
purposes, as such term is defined and applied in Section 39-1-102, et seq., C.R.S.
ATTEST:
City Clerk
CITY OF ASPEN, a municipal co~_~or~
APPROVED AS TO FORM:
LANDOWNER
Bar/X LLC, a Colorado Limited Liability Company
By: Gary Finkel, Trustee of the Survivors Trust Under the Zoline Family 1982 Trust.
STATE OF COLORADO
as
COUNTY OF PITKIN
Acknowledged before me this
2001t, 1 by ~ a.r/~ ~'o,/ce. [
)
day
)SS.
of
My commission expires:
3dv t7 oow
21
Notary
STATE OF COLORADO
COUNTY OF PITKIN
Acknowledged before me this
[]k&~/ 200fi,1 by
in his/he~ capacity as
day
My commission expires:
of
22
LIST OF EXHIBITS
A Legal description of -/X Ranch proposed to be annexed
B - Map of area including Back Bowl and Zoline -/X Ranch
C - Petition to Annex - (Standard City of Aspen petition for annexation)
D - Utility Location Map
E
F.
Conservation Easement - (To be drafted as part of land use process)
.Water Service Agreement
G. - Estimate of ECU's and Assumptions Regarding Cost Allocation - (To be drafted
as part of land use process)
JPW-07/1
1/2000-G:uohn\word\agr~zoline.pre.7.1u 1-00.doc
hk - prearmex-f~9-5-OO-revg.28.00
f-10-25-00
23
LOCATED OVER POR ' ' ~_.__ZZT]~'I'T
TI, NS OF SECTIONS 2 AND 11 --
PRINCIPAL MERIDIAN COUN , TOWNSHIP 10 SOUTH ·
, TY OF PITKIN, STATE OF COLORADO B~l~- ~,=R~N~_E_8.5 WEST OF THE 6th
....... ~u~:II~ED AS FOLLOWS:
BEGINNING at a point on the Easterly Right.of. Way line of'colOrado state Highway No 82 (Pro eCt
Unit 1) said point being the NortheasterlY comer of Par ~ · ' N
Transportation, from whence the ~/,: ," ........... cel N.o._120,. Project Code 122~n n~ ~l:~ r,~. ~.um_ber: 0821-051
and is monumente,~ :,,, ~, ~, .... ,_,-. ,,Z,,ic~ ~;om_.m.o.n tosaio ~ections 2 an ......... oloraao_Departmen
Bureau of Land M-~'~l~':: '~'"'+ DraBs uap one ~." steel pipe'ina mound o}dslt1 bears No,rt~ .1.0-25,2_.0,.East, 708.43tf~fe
gement 1/4 S21Sll 1954; ones, stamped U.S. uaaastral Survey t
thence, along said EasterlY Right-of;Way line, North 60* ' "
~W_a~ I[ne.,.alon. g. t_he E. asterly line of Golf Course Parc "1,0 52 West, 177...2._7_feet; thence, leavin said _
i..=c.~..rOe~oln P'lat I:too~( 33 hanes 4 th ..... '- ....... ~1 A., .a.s shown on F~nal Plat and P ii ,~ i,n_g_ ,. Easterly Right-of-
I,iorth 01 48'31" Ea.~f ~.l.~ ..... :"'j?L_~A !~jcluslve, oi'tne Pitkin Cou · .~;~. ~ur ivla..roo.n creek Club.
on .- ........ o ~ee[; I,iorm ;$b 31'27" We . nty Records through the fo,ow ·
the ~outh.erly line of Stage Road as ~t, 724.96 feet.; an.d North 08"06'25" lng courses.
Inc. dated February 18. 19 · , shown on unrecorded survey mr,Joe Zoline East, _762.33 feet to a point
_. _ . 91, . prepared by Scarrow and Walker,
thence, along said Southerly line, South 89'14'52" West,' 862.11 feet, to the Southerly prolongation of the existing
I{ne as refered to in deed recorded in Book 351, page 144 of the Piti(in County Records; fence
thence, along said fence line, its Southerly Prolongation and the Northerly continuation of
hereinabove described, throu h the ~ .... ence as it h
o , . g oil.wing courses- the I~ as
N.o, rth,.0,~ 01 58 East 202.09 feet' North 02*02'27" ' ' , . . ~. been
41 53 West 62 1 · ,o , . East, 109.93 feet' N o -
, · 4feet, North022943 East 17 - ,. ,o, rth00 1927 East 29814 · o
106.07feet- No . , ~,,.~ , 665feet North00 11 " feet, North00
..... o_,, ,,rth24 3644 West, 52 44 feet; No~h~"~'~,~ .... 54 West, .2.42.?7 ~et. ~o~h ....
I,tor~h2§ 2910 We . ' o , ~ .... ,, west 127 · o ,, 19 2026 West
E st, 58.92 feet, North 17 1046"We . , .6~ofeet, North 20 4824"Wes '
ast, 120.96 feet; North 02°53' , st, 24.94 feet, North 06.17'20" t, 89.09 feet;
feet' North 1 ~-,~,.~,, = ...... 0~ .Eas. t, 185.29 feet; North 03'35'~7" ~..~., ..... W. es.t;40.52 feet' North 01°19,?.~,,
line ',,~ l:i. g; ~ v; ~.~, I i O.O-" met; North 13t50'57" E~-+ ";;';'-Z~-°" ~.u.%zo re. et; North 03"56;25" E--~
...... o a / or sale :section 2; ....... ,~[ ,o sale tence's intersection with the-~rt~;'~i~
thence along said Northerly line; south 88o15,48,, East, 1470;20 feetBanktO anofintersection with a 'line which is
25.00 feet Westerly of, when measured at right angles to, the West Maroon Creek per deed filec~ inPa~!l~el~t=°~and
page 481, said Pitkin County Records; - ' ---,,,,,, ,~o.. ,
thence,.along saidF parallel line throu. '
South 47°16'56" n.~t <~ ........ gh..the._f_oll?~ing courses_: . .
40'59" East, 51 4~t?'u' ,,er; ~outn 40°44 00" East, 99.92 feet;
South 29°29,19;, East 82 66 fee ....... South 43°12,00" East 75
feet;'
South
26"
3_.8'l.5."~,a~t,27.37fe~t. ' t, South44 1150 East, 78.16 feet; South 70o00'04" East ~n .... '~_, ~ .
~outil 01 16'48" East ~ ~ t==,=,~. ..... o--, , ....,~ ~u[; .~outh 50°
4..6'52" West, 118.50 ~e~; ........ -0urn z~ .58 !0" West, 34.56 feet! South 76,08'32" West, 43.65 ~et; · South 00°
~a°sU~,h44.;~l~ele4; East, 92.53 feet; South 07°3208. East,"36.99 feet; South 52l° 1 ~ ,52,. Eas ' · I ' l
South 40°07,51. East. 16o ~t-~ t':;-~. ~^,+:. o., ......... . . . t, 34.18 feet, South 11°19'08"
4~8'00" East 170 52 f~et' - .............. o~ .~v lZ ~-ast 92.23 feet; North 66'41'51" :-.-..,; .....
~Out o , ..' , - . ,-,=o~, ~.~.o~ Teet' ~out °
, ,h,,06 11 13 West,.83.10 feet; South 07"05'" ' :. , h 12
54 49 East, 72.69 feet. 08 East, 34.83 feet, South 00°01 '32" West, 45.24 feet; South 18°
South 10"58'43" E~-~f 7:; ~ ~
20'24" E~st,,13,6,.4~'~e't?". .... ~, South 13°40'31'' West, 47;18 feet; SoUth 04'17;31" East, 66.15 feet; South 08"
South 04 29 56 West, 65.63 feet; South 05°54'39,, East, 34.46 feet; South 20°50'18" West, 88.41 feet; South 02°
09'35"._.Worst, 2,8,;08 feet; .
South53 23'59 West, 34.41 f. ; South 1~.3~ ~" West, 60.60 feet; South ,5.11,24, West, 30.24 feet; South14°
51'24" E,a~t, ,30;,10 feet;' eet '2 :
South 30 36 56 East, 49.45 feet; South 33 44 33 EaSt, 31.~40 feet; South 25°57'56, EaSt, 65.95 feet; South 15"52'1S-
East, 72.55 feet; .
19'30"S°uth 07°20'49.E,a~t,,36 ,4,TWeet'feet;27'44 feet; . South 45'10'43"o,. West, 20.69 feet; South 32"45,51,, West, 51.58 feet; South 02°
South 08 50 53 West, 19.54 feet; South 08 15 44 East, 25.11 feet; South 13°20'02'' East, 27.03 feet; South 31"23'52',
East,~ 113.34 feet;
South 00°17'56" E~-~f '.lo no ~, .
07 .......... ,~/ west, 5.56 feet; ........... :,, South 14°06'53. West,'60.96 feet;. South 11'55'16" East, 57.1.6 feet; South 08o
North 39°20,13.' We.~f ~).l ,~7
07'57" West, 36.92 fe'~t'~ ......... North 86°08'02" West, 47.08 feet; South 53°19'46" West, 28.16 feet; South 76°
South 12°43,14'. West, 40.76 feet; South 32°41,52" West,.99.52 feet; South 91°29'59'. East, 44.65 feet to a point on a
non-tangent, 400.00 foot
radius curve concave East a radial line to said o' o , ,,
central angle of 33°27, ,,, p ~nt bears South 76 47 40 Ea - .
the . 25 a length of 233.57 feet' tan ent to sai st, ~outherly along said curve thro
Northerly hne of that certain n ,-=i,,~,..:.~_"- .... _g~ - . dc_urve, South20 1505" a.~f ~', ...... ' .u.gha
,ar~ ....... u~=~{,ueo in 1500K 228, page 590, said Pltki-ECo~'n~- :~, I~;c~r~st~a point on
thence, along said Northerl line and thew · '
North 88*47'53" West 1 Y , . . esterly, hne of said certain arcel thr
88°47'53" We-~f ,~ ;~o ~8_6_..92..fee.t., to a point hereinafter refered to a- P~^:-* "';-. o~gh the fol!.OWl.ng courses:
........ o, ~ee~, ~outn 06°25'57" We 5 40 f~_~t. ~,,',T,~'L~'.'~ ~,,,~n,.e.n_c? ?..n.ti.nulng. a_long said line, North
st, 29 ......... ,,-m.: ~: o u, we=t, 0o.,~8 feet; ~outh 11°15' ~ 6"
West, 94.16 feet; and South 26°52'06- West, 124.91 feet to a point on the Northerly line of Lot 27 of said Section 2,
point also being the Northeast corner of that certain parcel of land described said
in a deed recorded in Book 335, page 468, said Pitkin County Records;
thence, along the East line of last said certa{n.p~a, rce! South 21"16'53" West 63R ~ feet to a point on the Westerly line of
Lot 1, Aspen Golf Course Subdivision, per plat l'lled in Book 17, page 35, s~id ~'~il~i~ County Records;
thence, along said Westerly line throu h the '
West 84.~3 feet: Sou .... g following courses: South 00°13'1 -
th 07 20 14 West. 166 04 feet' and .~3.fh ~.o~n,,,~,,, ,.,5 East, 150.65 feet; South 01°04'.~n,,
........ ~= o, west, 5.56 feet to the POINT OF ---
BEGINNING.
The hereinabove described Parcel containing 142.465 Acres, more or less.
EXCEPTING THEREFROM a strip of land 30 00 feet i '
p.a.ge 481, said Pitkin County Records =n,~ r~;;^-. · _m_ wJdth., as de.fi, ri. ed in deed record ·
s,ae of the following described line: ....... ~,~,oit,on~d by v,rtue of tn,s survey, lying 15.e0d0'~eeB~o°nk 166,
either
Beginning at hereinabove describe Point "A'" th , o , ,
thence, North 03°51'30-'West 250?^ · ..... L ence No. rth 07 50 30 East, 233.7 t;
thence, North 03°46,30" Ea" .,,~ ~t, mence, North 04°56,30" West 151 6 0 fe,e.
st, 233.40 feet; thence North 77°22'3n t^~'.. '.~,, ^;; .0 fe. et,
!hen.ce, South 31°37'30" West 38.00 feet; thence,' So ..... ,, .~u.uu met'
terminus of said strip. The hereinabove described Parc~ 81°37'30,, West, 109.00 feet to the
containing 0.721 Acres, more or less.
The hereinabove described BarD( Ranch Parcel 1, contains 141.744 Acres, more or less.
Z
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o~8
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'"1
PETITION FOR ANNEXATION
TO THE CITY OF ASPEN, COLORADO:
The undersigned ("Petitioner"), this F day of ~r~a~4 2000, hereby
petitions ("Petition'~ the City of Aspen, Colorado, to annex to the City of Aspen, the
unincorporated territory located in the County of Pitkin, State of Colorado, described as
set forth on Exhibit A attached hereto and incorporated here~n by reference ( ~Annexatw
Property"). In support of this Petition, Petitioner alleges that:
1. It is desirable and necessary that the Annexation Property be annexed
to the City of Aspen, Colorado.
2. The requirements of Section 31-12-104 and 31-12-105 Colorado
Revised Statutes ("C.R.S.")exist or have been met.
3. A community of interest exists between the Annexation Property and the
City of Aspen, Colorado.
4. The Annexation Property is urban or will be urbanized in the near
future and the Annexation Property is integrated with or is capable of being integrated
with the City of Aspen, Colorado.
5. Not less than one-sixth (1/6) of the perimeter of the Annexation Property
is contiguous with the City of Aspen, Colorado.
6. The signer of this Petitic'~ o' ~mprises more than fifty percent (50%) of the
landowners in the Annexation Prope?ty ~.,~.~ *g more than fifty percent (50%) of the
Annexation Property, exclusive of streets and ~Jleys; and the signer of this Petition hereby
consents to the establishment of the boundaries of the Annexation Property as shown on
the annexation.plat submitted herewith.
7. The signer of this Petition comprises the owner of one hundred percent
(100%) of the Annexation Property.
8. The Annexation Property is not presently a part of any incorporated
city, city and county, or town; nor have any proceedings been commenced for
incorporation or annexation of an area that is part or all of the Annexation Property; nor
has any election for annexation of the Annexation Property or substantially the same
territory to the City of Aspen, Colorado been held within the twelve (12) months
immediately preceding the filing of this Petition.
9. The proposed annexation will noi result in detachment of area from
any school district or attachment of same to another school district.
10. Except to the extent necessary to avoid dividing parcels within the
Annexed Property held in identical ownership, at least fifty percent (50%) of which are
within the three (3) mile limit, the proposed annexation will not extend the municipal
boundary of the City of Aspen more than three (3) miles in any direction .from any point
of the current municipal boundary.
11. The proposed annexation will not result .in the denial of reasonable
access to any landowner, owner of an easement, or owner of a franchise adjoining a
platted street or alley which has been annexed by the City of Aspen but is not bounded on
both sides by the City of Aspen.
I2. In establishing the boundaries of the Annexation Property, no land
which is held in identical ownership, whether consisting of a single tract or parcel of real
estate or two or more contiguous tracts or parcels of real estate:
(a) is being divided into separate parts or parcels without the
written consent of the landowner or landowners thereof; or
(b) comprising twenty (20) acres or more and together with
buildings and improvements situate thereon having a valuation for assessment in
excess of $200,000.00 for ad valorem tax purposes for the year next Preceding the
proposed annexation, is included in the Annexation Property without the written
consent of the landowner or landowners.
13. The legal description of the land owned by the signer of this Petition
is set forth underneath the name of such Petitioner on Exhibit B, attached hereto and
incorporated herein by this reference. As more particularly described on Exhibit B, the
land owned by petitioner Bar~X Ranch, LLC ( Bar/X Property )constitutes one hundred
percent (100%) of the Annexation Property pursuant to Section 31-12-I07(1)(g) of the
Annexation Act.
14. The affidavit of the circulator of this Petition certifying that each
signature on this Petition is the signature of the person whose name it purports to be and
certifying the accuracy of the date of such signature is attached hereto as Exhibit C and
is incorporated herein by this reference.
15. This Petition is accompanied by four prints of an annexation map
containing, among other things, the following information:
(a) A written legal description of the boundaries of the
Annexation Property;
(b) A map showing the boundary of the Annexation Property;
(c) Within the annexation bour~.~:~map, a. showing of the
location of each ownership tract in unplatted la~d ,:~d, if part or all of the area is
platted, the boundaries and the plat numbers of plots vr of lots and blocks; and
(d) Next to the boundary of the Annexation Property, a drawing
of the cdntiguous boundary of the annexing municipality abutting the Annexation
Property.
16. The Petitioner requests that the City of Aspen institute the zoning
approval process for the Annexed Property in accordance with C.R.S. Section 31-12-115
and Sections of the Land Use Code of the City of Aspen, and that the
City approve and execute an annexation and development agreement ( Annexation a
Development Agreement") which establishes vested property rights for the Annexation
Property and otherwise establishes the development plan for the Ann.exation Property in
accor'dance with the Pre-annexation Agreement dated ~ 2000, executed between
Petitioner and the City (the "Pre-annexation Agreement").
17. The signer of this Petition hereby reserves the right to withdraw this
Petition at any point prior to the later to occur of' (i) thirty-five (35) days after the
effective date of a final ordinance approving the Annexation and Development Agreement
pursuant to applicable provisions of the City Code of the City of Aspen, and C.R.S.
Section 24.68-101 et seq.; (ii) three days after the expiration of the time period prescribed
by the Charter of the City of Aspen for filing a referendum petition challenging the
ordinance approving the annexation; (iii) any later date provided for in such Annexation
and Development Agreement; (iv) thirty-five days after the date of final approval by the
City of a site specific development plan for the Annexation Property; or (v) in the event
that the City of Aspen and/or Pitkin County fail to include the Annexed Property within
their respective delineated "Committed Areas' on Or before December 31, 2001, pursuant
to the terms of the proposed constitutiohal amendment, ~rnonly referred to as "Citizen
-~ th" be adopted by the voters of Colorado in the
Management ot (~row , should the same
2000 General Election. Neither the City nor the Petitioner shall cause the occurrence of
the conditions necessary to the effectiveness of this annexation pursuant to 31-12-I13
(2)(a)(I)(II) C R.S. by recordation of the annexation ordinance and annexation maps, until
the expiration of the latest of the foregoing enumerated events.
18. Upon the annexation ordinance becoming effective, and subject to the
conditions set .forth in this Petition and in the Annexation and Development Agreement,
2
the Annexation Property shall become subject to all ordinances, resolutions, rules and
regulations of the City of Aspen, except as otherwise set forth in the Annexation and
Development Agreement, and except for general property taxes of the City of Aspen which
shall become effective on January I of the next succeeding year following passage of the
annexation ordinance.
I9. This Petition is filed on the condition that, concurrently with its
approval of annexation of the Annexation Property: (i) the City of Aspen approve zoning
of the Annexation Property that is substantially consistent with the application for zoning
approval which Petitioner will submit following the City of Aspen making the required
finding of this Petition's substantial compliance with the requirements of the Annexation
Act; and (ii) the City of Aspen approve and authorize execution of the Annexation and
Development Agreement consistent with the Pre.annexation Agreement; and (iii) the final
approval by the City of a site specific develOPment plan for the Annexation Property
consistent with the Pre-Annexation Agreement.
20. Except for the terms and conditions of this Petition and of the
Annexation and Development Agreement as made subject to the terms hereof, which terms
and conditions Petitioner expressly approves and which thqr~fore do not constitute an
imposition of additional terms and conditions within the meaning of C.R.S.
Section 31-12-107(1)(g), no additional terms and conditions Shall b~ impOSed upon
annexation of the Annexation Property to the City of Aspen.
THEREFORE, Petitioner requests that the City Council of the City of
Aspen, Colorado complete and approve the annexation of the Annexation Property,
pursuant to the provisions of the Annexation Act.
Respectfully submitted this ~ . day of ~5~?~-~e,z J 200~).
Signature of Lando~.e~ r/,.pe~! Bar/X Ranch LLC, a Colorado limited liability
com,V~
Name:
Title:
Mailing Address.: cio Herbert S. Klein, Esq., 20l North Mill Street, Suite 203, Aspen,
CO 81611
Resident of the Annexation Property? NO
EXttlBIT A
TO PETITION FOR ANNEXATION
Legal Description of Annexation Property
459585.3 AESCHW 09/7100 7:07 PM
A-1
LEGAL DESCRIPTION
BAR/X RANCH
PARCEL 1
LOCATED OVER PORTIONS OF SECTIONS 2 AND 11, TOWNSHIP 10 SOUTH RANGE 85 WEST OF THE
6th PRINCIPAL MERIDIAN, COUNTY OF PITKIN. STATE OF COLORADO, BEING DESCRIBED AS FOLLOWS.
BEGINNING at a point on ~ EaSterly Right-of-Way hne of Colorado State Highway No. 82 (Project Number:
0821-051 Unit 1) said point being ffm Northeasterly corner of Parcel No. 120, Project Code 12:26~ Of Ibc Colorado
North 10~25'20~ EasL 706 4:3 feet eno t~ monumel), ,~
sfoneS stamped "tJ.S Cedestral Survey Bureau of Land Management
thence, along said Easterly Right-of-Way line. North 60°10'52.' West, 177.27 filet
thence, leaving said Easterly Right.of-Way line, along the Easterly line of Golf Course Parcet "A", as show~ on
Final Plat and P.U.D. for Maroon Creek Club, recorded tn Plat Book 33, pages 4 througf115, inclusive, ofthe
Pi~Jn County Records throughthe follO~ng courses:
North 01 °48'31" East. 915.89 fe~ North 35~31 '27" West. 724.96 feet; and North 08~36'25" East. 76?_33 feet t~
a po~ht on the Sou~erly line of Stage Road. as shown on unrecorded survey for Joe Zoline ~epared by Soar~ow
and Walker, Inc. dated February 18, Ig91;
thence., along said Southerly tine. South 89~14'52' West, 862.11 feet. to the Sou~erl¥ prolongation of the ~(is~ng
fl~nce tine as related t= in deed recorded in Beck 351 page 144 of the Pi~in County Records;
thence along said f~nce line, its Southerly prol~ng~nd the Noll~erly continuation Of the fer~e as it has
been hereinsbove described, through the foflowng
Nor~ 01~01'58" East. 202.0~ feet; NOS 02'~2'27" East, 10~.93 ~ North 00~1~'27'' East, 296.14fl~
Norb~ 00'41'53" West` 62.14 feet; North 02~9'43" East~ 176.65 feet; North 00°11'54" West` 24247 le~
North 19~'z0'26'"West. 106.07 feet; North 24~36'44" West. 5Z44 feet; North 22°11'10" West, 127.60 fee~
06°17'20" West 40 52 feet; Norm ul%~z'~" r_==.~ ~,~ ,~ ......... ~.. · .~ ~.
Noffh 03'~E,'27" East, 202.25 feet; North 03~56'~ F_~,
" sa d fence's ntersecaon w~m me
North 13~50'57' East, 0.:34 feet to
thence, along said Nollherly line, South 88°15'48" East~ 1470,2~ feet to an intersection witfl a line wflich is I~rallet
fo and 25.00 feet Westerly of, when measured at right angles to, the West Bank of Maroon Cn~e~ I:~ ~ filed
in B~:x~k t6~, P~g6 481, said Pifldn County Rec~ds;
thence, along said parallel line through the foll~fln~
Sou~ 47~16'5~' East, 9~,$1 feet, South 40~44'00" East. 99. g2 feet; South 45~1Z00" East, 75.~8 feet
Sou~ 28°40'59'' East, 51.42 feet South 29~29'1g
South 29OS~,10., West, 34156feet, Sou~?6o08,32-We~ 43.65fee~ South 00 4~',5;~' west.
So~,~t~ 24°51'14" East 92.5~ feet South 07~2.08" East, 36.99 feet, Scutch 52~15'52" East, 34.18feet
South 11°19'08'' Eas~ 79.45 feet SOu~ 40~07'51'' East, 160,49 feet, North 82~12.' Ees[ g2.23 f~t
North 66°~!'51' Es~'L 24.39 feet~ South 12~4~'00" East, 170.52 feet; Sou~ 06~'i1'15'' West 83.10 feet
South 07~05'08' East. 34.8~ feet;, South 00°01'32' west, 45,24 feet, South 18°54'49'' East, 7~69fes~
South 10°58'4~' East, 75.11 feet: South 13~40*$1"'West, 47.18 feet South 04°17'31'' East. 66.15feet
South 12~35'25'' West, 60.50 teat; =cum ~ · r .=. _~:i~. ,.~.., ~-_ 7~ ~,~.~:~, =-st 65 ~ feet:
South30°36'56' East, 4945 feet; So · " est 2069
' 2744feet; South45 10'43 W , . feet,
South 15°52'18 East, 72.55 feet; South 07~20'4~ _We~.., __._ ............ =~" West. 19'54 fee~
S~.~, 32 45 51 West, 51.58 fee~ So ~ ' ' ' 1
South D8*07'37" West, 5.56fee~ monn3g~2(713 Weet` 21.47 feet, North86~3802.W , .
.~z~,~h 32°41'5~' West. ~.52 feet;, South 01~z~'59" E~st` 44 ~5?eet toe .l~),nt on a _no 1;~[~,g [11~ . .__
~a-d';~$ ~.e ~:~ncave 'EasL a radial line to said point bears South 76°47'40 East; ~oume~y al~:j sago curve,
feet to a point on the Northerly line of that comas parce~ o~ ~an: oeec ............. ~ ~-,
Pil~Jn County Records;
lt~nce, amng said Northerly line, add the Westerly line of said certain parcel, through the fotlowmg courses
South 11~15'1E VVest. ~4 18teat, an~.~ic, um 26
Of Lot 27 Of said Sec'don 2, said point also being the Normeast corner
in a deed recorded in Book 335, page 468, said Pit,Jrt County Records;
thence, along the East line of ,a~ s~_id cert,.in, ,p~. r.c~.l Sou~ ~,1 ?~,6'_ ~5~:"_ .~_es_t~ I~..6m~lclf~3~,lD~no~C~3unly
Westerly line of Lot 1, Aspen Gol/~oursa mu~x31VlS~on, per p~at m~ m ~.~ , .-o ·
Records;
~ence, along said Westerly line through the folk~ving coumes:
South 00o13'15"East, 150.65 tee~ So~t~ 01*04'5~Weat. 84.63feet South 07 -~0'14"We~, 166.04teat
and South 24~..,g'3~' West. 5.56 feet to the POINT OF B~-GINNING.
The hereinabove described Parcel oantaining 142.465 Acres, more or less
EXCEFTING THEREFROM a strip of land 30.00 feet in width, as defined in deed rec~xded in Book 166,
page 481, said P~in County Records, and repoSitioned by virtue of this survey, lying 15.00 fee~ o~ eider
aicJe of the followmg desc~ipad
Beginning st hereinabove describe Point "A"; thence, Norlh 07*50'30" East` 233 70 fast;
thence North 03°$1'30"West, 250.40 feet; thence, No~h 04°56'30"West, 151
tt~ence. North 03'4~30" East` 233.40 feet; thence North 77'~2'3(7' West` 3090feet;
thence. South 31~37'30'' West. 38.00 feet; thence. South 81~37'30.' West 109.00 feet lo the
terminus of said sthp
The hereinabove described Parco! containing 0.721 Acres. rno~e or less.
The heremabove described Ear/)( Ranch Parcel 1. contains 141.744 Ac~es mo~e or less.
As show~ hereon and by this reference made a part hereof.
PARCEL 2
LOCATED OVER A PORTION OF SECTION 2, TOWNSHIP 10 SOUTH, RANGE 85 WES'T OF THE
PRINCIPAL MERIDIAN, COUNTY OF PITKIN, STATE OF COLORADO, BEJNG DESCRIBED AS FOLLOWS:
BEGINNING at the Southeast Corne~ of L~ 5, said Sec~n 2,
thence along the Sou~ Line of said Lot 5. NoS 88~15'48'' West. 436.30 feet to said Sout~ Line's intersa¢~
the Nor~erly continuation of the existing fence dine as refered to n deed recorded n Book 351. page 144 o~the PitY, in
County R e~3rds,
tt~ence, along said fence line through ~ following courses:
North 13°50'57" East. 114.50 feet; North 12°44'5~' East. 2S4.79 feet. and Nor~ 12~'34'48'' East. 263.95fl~
to the top of a steep slope above the Roaring Fo~k River;
thence, leaving said fence line, along said top of slope'through the f~lowing courses:
So~th 59~34'09" East~ 69.27 feet to a point oN a non.tongenf. 1000.00 foot radius curve concave Scuthw~-~.
a radial line to said point beam No,'~ 57°1Z53" Eas~ Southeasterly along said curve, th~-.agh a -;~-;,I an~le
of 10°16'53'' a leng~ of 179.45 feet; South 07~11'0G" East, 50.03 feet; South 21°18'17'' East. 44.53 fee'c
South 05~31"10" West, 32,00 feet; South 10~2'00" East, ~.5.00 feet to the beginning of a tangent, 40.00
radms curve concave Northeast; Soberly= So.easterly, Easterh/and Northcesterly aidng said curve, ~rcugh
a central angle of 109'11'30" a length of 76.23 feet~ South 25'20'41" East. 42,24 feet South 35~:)g'29"Eest.
43 07 feet, Sou~ 20~30'32'' EasL 50.20 feet; and South 27°41'19" Eas~ 17.40 feet to said to~ of siope's
intersecbon with the East Line of said Lo~5;
thence, along said East Line. Sout~ 4'0~'52" WesL 135,85 feet to the POINT OF BEGINNING
The hereinabove described Barf)( Ranch Parcel 2, contains 3,915 Ac~es. more ~ less
As shown hereon and by this reference made a pa~t hereof.
PARCEL3
LOCATED OVER A PORTION OF SECTION 2, TOW/NSHIP 10 SOUTH, RANGE 85WEST OFTHE ~b~
~RINCtPAL MERIDIAh' COUNTY OF PITKtN STATE OF COLORAD0~ BEING DESCRIBEDAS FOLLOWS.
BEGINNING at the Southwest Corner of Lot 4, said Set,on 2;,
thence, along the West Line of said Lot 4. North 4~08'5Z' East. 135.85 feet to the too of a steep s.~ce above the
Roaring Fork R~ver,
thence_ leaving said West line. along said top of ~ope through me f~lc~ving courses
South 27~41'19'' East 12.62 feet:, South 58°54'48" East. 59.52 feet: South 38~17'52'' East. 50.81 feel
South 57°58'06.' East. 47.30 feet; and South 18~26'35'' East 34.95 feet to said top of slope's intemec~
w~ the South Line of said Lo~4;
thence, along said South line, Nor~ 88°15'48'' WesL 149.37 feet to the POINT OF BEGINNING.
The hereinabove d~cribed Bar.~ Ranch Parce! 3. contains 0,262 A~es rno~e o~ less
EXHIBIT B..
TO PETITION FOR ANNEXATION
LEGAL DESCRIPTION BY OWNEI~SHIP
BAl~/X LLC
*ADD LEGAL DESCi~IPTIQN
EXHIBIT C.
TO PETITION FOR ANNEXATION
Affidavit of Circulator
The undersigned, being of lawful age, who being first duly sworn upon oath
deposes and says:
That he was the circulator of the foregoing Petition for Annexation of
lands to the City of Aspen, consisting of pages, including this page, and that the
signature of ~.¥ /: / ~ ~ e ~- .. thereon was witnessed by the circulator and is
the true and original signature of the person whOSe name it purPorts to be, and that the
date of such signature is correct.
Circulator
STATE OF [4/Vff /~ //4J C) )
) SS.
CO UNTY OF ~ ~ )
The f~regoing AFFIDAVIT OF CIRCULATOR was subscribed and sworn to before
me this ff ~ day of~4~ ,2000, by ~J// /) ~ //~/ff.~-~, ·
Witness my hand and official seal.
My commisswn expires: ~/~W/P-c'oz~~-
' · /
Notary Public
zoline'~vetition.1
Final Execution Copy 5-9.01 ~'~;.: ~ or ~9
~ e4/22/2003 :re: 471q
.~I~??_21::IVIS PITKTN COUNTY CO R os.ee D e.ee
Exhibit F to Pre-annexation Agreement ~
WATER SERVICE AGREEMENT
Water service shall be provided to the -Ix Project (hereinafter "Project" or
"Property") which includes a Free Market Component, a Fathering Parcel, a Ranch
manager's residence, Cabin, affordable housing parCel of approximately 20 acres in size,
and certain irrigation requirements of the Property all as set forth in the Pre-Annexation
Agreement to which this Agreement is an attachment. The terms and conditions of water
service as herein provided shall survive annexation of the Property to be Annexed, and
shall govern water serVice to this property Subsequent to annexation.
Recitals
WHEREAS, the Property to be Annexed will be annexed to the City pursuant to the
parties' pre-annexation agreement; and
WHEREAS, -\x Ranch, LLC, (hereinafter "Landowner") plans to develop the Free
Market Component and the Fathering Parcel of the Property to be Annexed as described
in Paragraph 1(C)(I) of the pre-annexation agreement ( the "Free Market Area "); and
wHEREAS, the City of Aspen (hereinafter "City" or "the City") plans to develop the
Affordable ~ousing Component of the Project described in paragraph I(D) of the pre-
annexation agreement, in the area depicted on Exhibit "B" to the pre-annexation agreement
(the "Affordable Housing Area"); and
WHEREAS, Landowner will be contributing water rights and other consideration to
the City in connection with development of the Free Market Area, Cabin and the Resident
Owned Ranch Manager lot ("Landowner's Dedication Requirement"); and
WHEREAS, Landowner seeks to obtain municipal water service from the City for
the Project; 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
WHEREAS, the City has agreed to design and construct, at its own cost, subject to
the cost sharing provisions of this Agreement, the water mains; lines and associated
facilities needed to serve the Project; and
WHEREAS, the City is not hereby representing that it is a regulated public utility, or
holding itself out to the1public in general as capable of or intending to provide water service
extraterritorially; and
WHEREAS, the Aspen Municipal Code ("COde") provides for the rating of new or
expanded water service based on potential water demand as expressed in equivalent
capacity units (hereafter "ECU"), ECUs being defined in the Municipal Code as units
Wa/er Ser¥ice Agreemen! (new development) 12/97 (Re~,. 06-98) '~
Page: 2 o¢ 19
Final Execution Copy 5-9-01 SZLVm O~VZS PZTKZNCOUNTY CO e4/22/20e3 le:47~
" R 96 ee o e.ee
reflecting that part of the capacity of the City water system necessary to serve a standard
water customer, with multiples or fractions of the unit, including a maximum number and
type of water fixtures, a maximum irrigated area, certain cooking facilities, or other water
demand factors; and
WHEREAS, the City desires to encourage the use of raw water supplies for certain
outdoor irrigation where safe, practical, feasible, and consistent with the Code and City
Policies, so as to reduce the dependence on treated water for this purpose and to minimize
the costs of providing treated water service to the Project and the Property to be Annexed.
THEREFORE, in consideration of the mutual promises and covenants contained
herein and in the Pre-annexation Agreement, the parties agree as follows.
PURPOSE OF AGREEMENT
1. Treated Water Service to Projec_t. The City hereby agrees with Landowner
to provide treated water service to the Project under the terms of this Agreement in such
quantities and to the extent herein provided so as to serve the structures and uses
authOrized by the Pre-annexation Agreement for the Project, as set forth in the final
recorded plat for the Project. Landowner understands that the City will be the sole
provider of treated water to the Project and the Property to be Annexed. Pursuant to this
Agreement, the City shall provide treated water service adequate to meet the approved
demands and uses of the Project, provided, however, that the City shall not be required
to supply water to serve more than 78.2 ECUs for the Free Market, Fathering Parcel, Cabin
and Ranch Manager lot components of the Project (hereinafter "Private Project Compo-
nent"), and further provided, that the maximum volume of treated water the City shall be
required to provide to the Private Project Component pursuant to this Agreement shall not
exceed 32 acre-feet per year. Only those structures and uses approved by the City for the
Project may be served under this Agreement. Nothing herein shall be deemed to restrict
the amount of water delivered to the Affordable Housing Component of the Project
(hereinafter "Public Project Component") being developed by the City.
2. ..City Water Policies. The parties agree that the City's water policy set forth
in Resolution No. 5, series of 1993, as amended by Resolution No. 49 (series of 1993) and
Resolution No. 9 (series of 1996) of extending water service outside the City's geograph-
ical boundaries while also promoting environmental interests is furthered by Landowner's
commitments contained in this paragraph, and that Landowner's commitments are an
important inducement to the City to provide water service pursuant to this Agreement.
parties recognize that the Landowner s water rights are tributary to Maroon Creek The
and
Willow Creek and that the City owns the Maroon Ditch right, also tributary to Maroon
Creek. The Maroon Ditch was decreed in CA 3723 with non-irrigation Priority No. 11 on
August 25, 1949, with an appropriation date of August 12, 1892, and consolidated with
Priority No. 208A, is used for municipal and hydroelectric purposes. Use of the City's
Maroon Creek Hydroelectric Plant is subject to a permit issued by the Federal Energy
Regulatory Commission ("FERC"), which requires that the City bypass 8 cfs at such times
as it operates the hydroelectric plant. Landowner recognizes that the City may at some
time seek or be required to obtain water court confirmation of its right to Call for both the
Water Sero,ice .4greemett! (new deve/opmenO 12/97 (Rev. 06-98) 2
Page: 3 of' 19
Final Execution Copy 5-9-01 04/22/2003 10:47~1
$ILVIn D~qvI$ P~TK=N COUNTY CO R 9S.00 D 0.00
bypass flow and the water required for the hydroelectric plant under its 1892 Maroon Ditch
right. Landowner, for itself, its successors and assigns, acknowledges and agrees that the
City's Maroon Ditch hydroelectric water right includes the 8 cfs bypass requirement
imposed by the FERC permit. In addition, if the City applies to the water court for
confirmation of its right to call for the water required for the hydroelectric plant under its
Maroon Ditch right, including the 8 cfs bypass requirement, then Landowner and its
successors and assigns, agree not to oppose, directly or indirectly, the City's water court
application.
3. .Limitation of Time to Provide Servico. The City's obligation to provide water
service to the Project pursuant to this Agreement shall terminate if the final plat for the
Private Project Component has not been recorded by December 31, 2003, unless that
deadline is delayed by mutual agreement of the parties or by force majeure as defined in
paragraph 29 below, in which case the deadline shall be extended by the same number
of days as the force majeure delay that prevented recording of the plat.
CONSTRUCTION BY CITY
4. .Design of Mains, Lines and Facilities. The City will be responsible for the
design of the water transmission and distribution mains, associated facilities and internal
distribution lines for [he Private Project Component in accordance with and subject to the
City's design, materials and construction specifications, and including such sharing of
facilities as may be necessary or practical to provide water service to the Public Project
Component. The timing of design shall be in conformance with the provisions in paragraph
6 below. (Water mains, lines and infrastructure required to serve the Public Project
Component, that cannot be shared with the Private Project Component will be the City's
sole responsibility, as set forth in paragraph 5 below.)
5. Cost Allocation and Design Dispute Resolution. The parties recognize that
the Private Project Component and the Public Project Component will both be served by
a common looping water main system that has not yet been designed. The parties further
agree that all design and construction costs of any water system facilities or improvements
located within the Project that are primarily used for a common benefit for the Public
Project Component and the Private Project Component ("Shared") shall be shared on the
basis that 78.2 ECUs bear to the total ECUs within the Project (a fractional formula where
the numerator is 78.2 ECUs and the denominator is 78.2 ECUs plus the maximum number
of ECUs to be used within the Public Project Component). The Public Project Component
is estimated to be 225 units, at an estimated 1 ECU per unit, representing 75% of the total
ECUs. Adjustments may be made as noted in the Pre-Annexation Agreement, but in no
event shall the Landowner's responsibility be greater than 25% of such "Shared" costs.
Although the common looping water main system to serve the Private Project
Component and the Public Project Component has not yet been designed, a preliminary
design drawing showing the expected locations of the water main system is attached as
Addendum 1 (which includes Addendum lA and lB). Those mains identified in red on
Addend, urn 1, and described as "City Onl,," ,,,;, ~-^ .-,A_: .....
the City s sole expense Those mai~s id;~'lti~;~'~ I~1~~'gne-a'.c.°ns?ucted' and installed at
· . ue on Addendum 1, and described as
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"Landowner Only" will be designed, constructed and installed in conformance with the cost
sharing provisions and reimbursement schedule described in the Pre-Annexation
Agreement and as set fo~h herein. The cost of design, construction a~ installation of
those mains identified in purple on Addendum ~, and described as bared" will be
allocated be~een the City and Landowner as herein described. The design, construction
and installation of those mains identified in orange on Addendum ~, and described as
"Shared + Upgrade" mains are expected to be upgraded from the size that would be
required to se~e only the Public Projec~ Component and the Private Project Component.
The incremental costs of such oversizing shall be the City's sole responsibility. Therefore,
the costs for the "Shared + Upgrade" mains will be allocated as ~ollows: First, the pa~ies
shall allocate costs as described for a "Shared" line be~een themselves for the sizing
required to se~e only the Public Pro~ect Component and the Private Pro~ect Component.
Second, all additional costs for design, construction and installation o~ any oversizing of
such mains at the City's request ("incremental costs") shall be calculated as an additional
cost to be solely allocated to the City.
The parties recognize that the locations of the mains shown on Addendum 1 may
be revised as final design drawings are developed. If changes are made, and the parties
cannot agree between themselves whether facilities not shown on Addendum 1 are
considered to be "shared" facilities, an independent civil engineering firm shall be mutually
selected by the parties to make the determination of what facilities are considered to be
"shared" facilities. Should any dispute or disagreement arise between the parties as to the
capacity, design, or lay-out of the potable water system for the Project, the parties shall
submit the disagreement to the independent engineer whose findings shall be binding and
conclusive as to the allocation and dispute. The City and Landowner shall share equally
in the cost of the independent engineer's services.
6. _Construction. Following annexation of the Property to be Annexed and
recording of the final plat for the Private Project Component, the City Shall proceed with
due diligence to design and construct the water transmission and distribution mains, lines
and associated facilities in accordance with the plans and specifications. All preconstruc-
tion planning and design of the water system for the Private Project Component and Public
Project Component shall be complete no later than six (6) months from recording of the
final plat of the Private Project Component, and construction shall begin immediately after
the design and planning is final. The City shall submit all preconstruCtion designs and
plans to the Landowner such that Landowner has at least 45 days to review them and
provide approval or comments to the City prior to expiration of six (6) months after
recording the final plat of the Private Project Component. Once all preconstruction plans
and designs are approved by the parties, they shall not be substantially modified except
by agreement between the parties. It is acknowledged that final determination on
acceptable alignments, easements, PRV locations, and similar technical engineering
elements for the design shall not be considered substantial modifications. It is anticipated
that construction will be completed no later than 18 monthS from reCording of the final plat
of the PriVate Project Component.
7. ~. "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
Water Se~n,ice Agreement (new development) 12/97 (Rev. 06~ 98)
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,~SZLVZR D{qVZS P:TKZN COUNTY C0 R 9s.ee D e.ee
Landowner wish the City to pretap the distribution lines serving the Private Project
Component, a Pretapping Agreement will be required by the City.
CONVEYANCE OF WATER RIGHTS AND EASEMENTS
8. Conveyance of Water Rights and Structures. Landowner shall convey to the
City the water rights described on Addendum 2 and as described
Landowner agree that said water rights are believed to be sufficient herein. The City and
in quantity and quality
to allow the City to divert a quantity of water which is necessary, without administrative
curtailment, to meet the amount of treated water required for the Private Project
Component of the Project~ (previously labeled anoowners Dedication Requirement").
In addition, Landowner shall also convey to the City water rights sufficient to meet the
Iesser of (1) the raw water irrigation requirements of the open space associated with the
Public Project Component or I2) the irrigation requirements of the number of acres, not to
exceed ten, historically irrigated on the 20-acre parcel committed to the Public Project
Component as shown on Exhibit "B" to the Pre-Annexation Agreement ("Dedicated Raw
Water Rights"). The parties agree that once the number of acres to be irrigated with the
Dedicated Raw Water Rights pursuant to the foregoing sentence has been determined, the
Dedicated Raw Water Rights to be conveyed will be computed as 0.09 cfs per acre, so
long as the acres identified were historically irrigated. The Dedicated Raw Water Rights
are also described on Addenda I. Landowner shall convey the Landowner's Dedication
Requirement upon approval of the first final plat for any portion of the Private Project
Component. Landowner shall convey the Dedicated Raw Water Rights within 30 days of
a request to do so from the City which is accompanied by the approved plat of the Public
Project Component which quantifies and designates the acreage which will be irrigated by
the raw water system for said component. Contemporaneously with each conveyance of
water rights, Landowner shall convey to the City a proportionate interest in any ditches,
flumes, headgates or other structures and easements, or interests therein, necessary to
utilize such water rights2. All conveyances required by this paragraph shall be in form
mutually acceptable to Landowner and the City Attorney, and shall be a prerequisite to
zT .
he pames recognize that the present in-house demands of the Property are served by a legally-permitted exempt well.
Although the City does not generally allow privately-owned wells, an exception has been made in this case in recognition of the
unique value of Landowner's contribution to the City's affordable housing needs as described in the Pre-Annexation Agreement.
This exception is not precedent for future approvals of privately-owned wells within the City or within areas supplied with City water
service. The homes served by the well may continue to use the well until the final home using the well is connected to the City treated
water system. At the Landowner's option, the homes currently served by the well may connect to the City treated water system at
such time as the treated water system is available to them for connection. Wl~enever a home is disconnected from the well and
connected to the City treated water system, a certification shall be provided to the City stating that there are no cross-connections
between the well and the City treated water system. The City may request annual certification s thereafter
the well has been connected to the City treated xvater system, the well w I be used only for stock watering. When the final home using
The well maybe inspected
annually at the option of the City to assure that there is no cross-connection to the City's treated water system. If for any reason, a
replacement well is necessary for the continued water service to the existing homes or for the stock watering-only well (if all current
homes are connected to City treated water), then the Landowner shall nod fy the City of the necessary replacement, and shall provide
a certification that there are no cross-connections between the new well and the City treated water system. Landowner shall
disconnect, plug and abandon the old well in the mann er required by the Colorado State Engineer.
2The parties recognize that there is presently underway an effort to establish a new mutual ditch company known as the
Willow and Herrick Ditch Company. To the extent that entity is established prior to the req uirement to convey interests herein to the
City, a proportionate number of stock certificates may be conveyed. The City agrees to join in and support the Ditch Company's
formation.
Wa/e/' Sen,ice Agreement mew development/ 12/97 rRev. 06-98)
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.... o e.ee
provision of water se~ice to the Private Project Component. In addition, contemporane.
ous~y with each conveyance of water rights, Landowner will aJso provide to the City all
information in its possession or available to it, regarding the historic use of said water
rights, including well pumping records, diversion records, irrigation records, aerial
photographs, affidavits, and all other available information concerning the use of said water
rights.
9. Easements_. Landowner shall obtain at its own cost and convey in perpetuity
to the City surveyed, as-built non-exclusive easements for water mains, lines, tanks and
other water facilities, along with all necessary access easements for maintenance and
repair purposes within the Private Project Component ("easements"). 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 tanks and 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 resul[ in any
waiver or diminishment of any defense or limitation available to the City under the Colorado
Governmental Immunity Act or other applicable law. The City acknowledges that such
easements may cross irrigated lands which are under active irrigation, and agrees to
provide ten (10) days notice to Landowner prior to accessing such easements, or such
notice as practicable in an emergency situation. City also agrees to use reasonable efforts
to minimize interference with the agricultural uses when accessing easements, and agrees
to use reasonable efforts to restore the land surface such that irrigation water use can
resume in substantially the same manner as it did before the City accessed the
easement(s).
The City shall haVe no obligation to provide water service to the Project until the
easements and water rights have been conveyed as herein provided.
10. _Water Balance for Private Proiect Component. Landowner has historically
irrigated 86 acres of land within the Project from its interest in the Willow and Herrick Ditch
System, diverted at various points along the Willow and Herrick Ditch System which are
owned or controlled by Landowner. The parties recognize and agree that the Project will
result in the reconfiguration of areas irrigated, means of irrigation and water uses. To
ensure that, as between the parties, no material enlargement of water use occurs,
Landowner agrees that no more than 86 acres within the Private Project Component may
be irrigated from the Willow and Herrick Ditch System less (1) the amount of land removed
from irrigation to satisfy the Landowner's Dedication Requirement (4 acres) and (2) the
number of acres to be irrigated by the Dedicated Raw Water Rights. The parties have
agreed that the rate of diversion of water attributable to Landowner's reta'
the Landowner's Dedication Ren ' .-""",,+ -..--, ,~.- ,-, .... , _ .,. , Ined water rights,
.~u~r ...... ,L ,:',,U U~ L~eu~cated ~<aw water Rights, from the
Willow and Herrick Ditch System at the Property's boundaries for irrigation, ponds, water
Wale/' Service Agreement h~ew developmenO 12/97 (Rev. 06-98)
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features and all other raw water uses associated with the Private Project Component will
not exceed an annual average of 5.0 cfs. The foregoing amount assumes that a greater
amount of water, corresponding to Landowner's retained water rights plus the Landowner's
Dedication Requirement and the Dedicated Raw Water Rights will generally be diverted
into the Willow and Herrick Ditch System's headgates. Landowner shall be free to further
change or balance water use as contemplated in 'paragraph 21, below, so long as the
above limitations on diversion rate and overall irrigated acreage within the Private Project
Component are not exceeded.
REIMBURSEMENT BY LANDOWNER
11. Reimbursement by Landowner. Upon completion of construction, the City
shall promptly provide to Landowner a detailed statement of the certified cost of
construction, including engineering costs, design drawings and construction plans, actual
construction costs, insurance, construction inspection fees, permit fees, the cost of
obtaining as-built drawings on reproducible sepias with maximum size of 24" x 36" and on
an AutoCad electronic data transfer file tied into one set of state plane coordinates, and
an administrative fee equal to 5% of the construction costs. The City shall not charge or
include in the certified costs any time of its employees or staff, it being understood that the
administrative fee is being charged in lieu thereof. In addition, the City shall provide
documentation evidencing the reimbursable cost items. Landowner's share of th
~nstallation of utilities provided to the Pro~)ertv to be z~,,,,,~,,,,~ ...~...A~. _ . _ e c, ost o!
· ,- J ,,,,,,~,,~u w~,,~ are To De snarea
between the Public Project Component and the Private Project Component, as shown on
Addendum 1, or, if the !inal design drawings differ from Addendum 1. as .
~d~et_e_r?.ned ,to .be "shared' facilities, including, without limitation, any red.~H~,,m~,,a,,y ..b~e
~uyments wnlcn are constructed for the nrima,,, b~,,,~,~;, ~,.,-- ,-,-. . ,... --...~...~ .... ,-,,.,p~u
~. , y ~.~.~ ,..,. u,u r'rlvate ~-'rojec~ L;omponent
and the Public Project Component, shall be based on the ratio of the 78.2 ECUs to the total
ECUs in the Private and Public Project Components as described in paragraph 5, above,
but in no event shall the Landowner's responsibility be greater than 25% of the Shared
costs.
The certified cost shall be reimbursed to City in accordance with the Reimbursement
of City Costs provisions contained in Section l(H)(e) of the Pre-annexation Agreement to
which this Agreement is an attachment, and is subject to adjustment as therein provided.
The City shall have no obligation to provide water service to the Private Project
Component, or may discontinue water service, if it is not reimbursed for the
certified costs in accordance herewith (or, if a dispute has arisen as to whether
certain facilities are shared, if the City is not reimbursed the costs of the utilities for
the Private Project plus those attributable to the shared facilities as determined by
the independent engineer responsible for dispute resolution pursuant to paragraph
5, above).
WATER SERVICE
Water Servtce Agreeme/~t (nero development) 12/97 (Rev. 06-98)
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12. ..Treated Water Service. Upon completion of construction and Landowner's
conveyance of the required easements and water rights, and reimbursement of the
certified cost as and when required by the Pre-Annexation Agreement, the City will provide
treated Water serVice to the Private Project Component to no more than the total number
of Private Project ECUs (not to exceed 78.2 ECUs) provided for by the approved final
recorded plat and design drawings for the Private Project Component, provided that the
maximum number of ECUs and volume of water the City shall be required to supply each
year to the Private Project Component shall not exceed the amount (in acre-feet) set forth
in paragraph 1 above. Any increase in the treated water serVice requirements for the
Private Project Component 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. Landowner agrees to adopt, in a form acceptable to the Cit At
(whose approval shall not be unreasona~,~ ..... ;*~,~--,-,, ....... Y torney
~,,~, vv,~,,,~,u) covenants wnicn restrict the use of
treated water delivered hereunder by single family units to no more than 10,000 square
feet per lot of lawn and garden irrigation by drip or sprinkler irrigation means, and which
require compliance with the provisions of paragraph 22 hereof. 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, and curtailment
ordinances, and other water policies currently in effect or as may be enacted or amended
in the future, provided such future policies or Code enactments or amendments do not
materially impact the rights of Landowner under this Agreement or the Pre-Annexation
Agreement.
13. Ta Fees and S stem Develo ment Char es -Com utation and Pa ment'
Schedulin of Ta s. All tap fees for treated water service herein provided shall be
,as.s.e..ssed utilizing the City's prevailing applicable tap fee at the time of application for a
~)u,amg permit for the structure for which service is sought. No water service shall be
provided to any structure absent payment of the appropriate tap fee and any applicable
hookup charges. Tap fees and hookup charges shall be paid at the time of building permit
issuance. Unless a Pretapping Agreement has been executed by the Landowner, the City
Water Department shall determine scheduling of all physical taps or connections to the
main lines.
Landowner shall also pay to the City a well system development charge in the
amount of $400 per Private Project ECU within the Private Project Component. Payment
of this charge shall be made in installments as specified by the Pre-Annexation Agreement
and is subject to the same adjustments. The total well system development charge for the
entire Private Project Component must be paid in full before any delivery of water will be
made to the Private Project Component by the City.
14. SerVice Lines and Meters. Each serVice line within the Private Project
Component shall be metered in accordance with the Code at the sole expense of
Landowner and cross-connection and backflow prevention devices will be installed at the
Water Ser~,ice t;gree#le,t (nesv' developmenl) 12/97 frei,. 06-98)
8
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water user's expense. An automated meter reading system shall be installed for all new
customers who will be served by the private Project Component.
15. _Limitations on Provision of Water Service:. This Agreement is only for the
supply of raw and treated water service as herein des(~ribed and no expansion of uses,
connections, or water service beyond those set forth' herein 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.
16. Service Subject to the City Charter, Codes, Rules, Regulations and Policies.
Landowner 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 Aspen Municipal Code (including those regarding curtailment in times of water
shortage), as well as all aPpliCable rules, policies or regulations of the City now in effect or
as may be herea~er adopted, provided, however, that anyfuture ordinances, rules, policies
or regulations do not materially impair the rights of Landowner under this Agreement or the
Pre-Annexation Agreement.
17. .Rules Regarding Water Use. Subject to the provisions of this Agreement,
. ~and0wner agrees to adopt all pertinent pr~)visions set forth herein as rules and regulations
governing the use of water in the Private Project Component, and aqrees that this
Agreement (including its Addenda) shall be recorded as covenants runnir~g with the land
and shall be fully enforceable on the Property to be Annexed. Landowner 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. Landowner also agrees to prohibit all unnecessary or Unreasonable waste of water
on the Private Project Component 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.
18. 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 drought, inadequate
runoff, poor quality, failure of infrastructure, or other occurrence beyond the City's
reasonable control.
19. _No Guaranty of Water Quality, Quantity or Pressuro. The City makes no
promise or guarantee of pressure, quantity or quality of water sLOpply 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.
~Vater Sen'ice .4greemen! fi~ew development) 12/97 (Rev. 06-98)
9
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20. Property Rights in Water. All treated water furnished by the City under this
Agreement is provided on a contractu~al basis for use on the Private Proiect Component
as described in this Agreement, and all property rights to the treated water to be furnished
hereunder are reserved to the City. Treated water service provided by the City 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 treated water on the Private Project Component,
all dominion over the treated water provided reverts completely to the City. Subject to the
prohibition against waste and any other limitations on treated water use imposed in this
Agreement, Landowner shall have no obligation to create any particular volume of return
flow from the treated water furnished under this Agreement. Landowner 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.
RAW WATER USE
21. _Raw Water Use. The Dedicated Raw Water Rights shall be conveyed to the
City as provided in paragraph 8 above. The Dedicated Raw Water Rights, upon
conveyance to the City, shall be committed for use by the City to meet the raw water
requirements for the open space associated with the Public Project Component.
Landowner shall utilize all or portions of its retained water rights in accordance with
paragraph 10 above for the continued ranchi, ng operations, to the extent such are
economically or praCticably viable in LandoWner s s°le determination, and for the Private
Project Component raw water irrigation, pond uses and water features. In the event
continued ranching operations are hereafter determined by Landowner to no longer be
economically or practicably viable, in Landowner's sole discretion, such water shall be used
on the Property for open space irrigation and other uses and shall not be severed from the
Property for use on any other lands.
Landowner shall be solely responsible for obtaining any water rights, changes of
water rights, and augmentation plans necessary to permit storage of water in any proposed
ponds or any changes in place of use within the Private Project Component. Landowner
agrees that unless this Agreement is amended, neither Landowner nor any owner of all or
any portion of the Private Project Component will develop or utilize independent wells
within the Private Project Component, except as permitted in Footnote 1 of this Agreement.
Covenants shall be adopted which are mutually acceptable to Landowner and the City
whiCh prohibit any subsequent lot owner from initiating any new Water rights or seeking any
changes to water rights; it being understood that only Landowner or its successor
homeowners assOciation(s), and not the individual lot purchasers, shall have that right.
22. ..Compatibility of Raw and Treated Irrigation System,-;. The parties each
recognize that the raw water irrigation system to be designed, constructed and operated
by Landowner for the PriVate Project Component shall not be interconnected with any
treated water irrigation system which is supplied With water hereunder. To ensure
C°~iian~Wit~ the limitations on
the amount of treated water irrigation alloWed per lot and
the requirement that the systems not be interconnected, the parties agree to establish the
protocols for water use set forth in this paragraph: 1) All raw water delivered by sprinkler
Water Service Agreemen! (new developmen0 12/97 (Rev. 06-98)
lO
Final Execution Copy 5-9-01
means shall be mapped by Landowner and the map delivered to the City; this map may
be modified at Landowner's discretion3 provided any remapping is promptly delivered to
the City; 2) all sprinkler heads which deliver raw water shall be painted red to clearly
designate their raw water status; 3) the City shall have the right to inspect the lots and
properties comprising the Private Project Component at reasonable times to confirm and
monitor which areas receive raw water versus treated water irrigation (which inspection
shall be coordinated to the extent reasonably possible with the operator of the raw water
system); 4) the raw water system shall be owned by one entity established by Landowner
and that entity shall designate an operator to maintain and operate the raw water system
and be the liaison with the City; and 5) the raw water irrigation system shall be designed
and operated so as to prevent individual lot owners from operating the raw water system
except through the desi§nated system operator.
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VIOLATIONS
23. .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 Landowner or any user who has purchased or leased a
portion of the Private Project Component 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, Landowner
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.
Notwithstanding the foregoing provisions of this paragraph, if an individual owner
or lessee within the Private Project Component (other than Landowner) commits a violation
with regard to water delivered to his owned or leased property, only that individual owner's
or lessee's water service shall be disconnected, and enforcement actions will be directed
toward that violator, and not toward those who are not violating this Agreement.
TERMINATION
24. Termination by Aqreement. 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, and shall not be affected by annexation
of the Property to be Annexed.
25. _Termination if Ille.qal. 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
3 However, the parties agree that any modification of such mapping will not result in raw water irrigation of
lands alsO irrigated using treated water.
Water Service Agreement O;ew developmenO /2/97 (Rev. 06-98)
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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.
GENERAL PROVISIONS
26. .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. Landowner aqrees that neither it, nor its successors in interest or
assigns shall at any time petitio~ 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.
27. ..No Waiver. Failure of a party hereto to exercise any right hereunder shall not
be deemed a waiver of ~ny 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.
28. 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:
To: City of Aspen: City Manager, City of Aspen
130 South Galena Street
Aspen, Colorado 81611
with copy to City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado
81611.
To: Landowner:
-\x Ranch, LLC
c/o John and Pamela Lifton
P.O. Box 997
Telluride, CO 81435
with copies to:
Herbert S. Klein, Esq.
201 N. Mill St., Ste.203
Aspen, CO 81611
Kevin L. Patrick, Esq.
730 East Durant Ave., Ste. 200
Aspen, CO 81611
Wa/er Se~q,ice Agreeme.t OTe~v developmenO 12/97 (Rev. 06-98) 1 2
Final Execution Copy 5-9-01 s R 96 ~ o ~ ~
29. Force Ma/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.
30. Severability. If any provision of this Agreement shall be or become invalid
or unenforceable, the Pre-annexation Agreement and the remainder of the provisions of
this Agreement shall not be affected thereby, and each and every provision shall be
enforceable to the fullest extent permitted by law.
31. Remedies. It is mutually agreed between the parties that in the event of a
breach or default hereunder, the parties shall have all remedies in law or at equity,
including the remedy of specific performance in any litigation between the parties.
32. _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 owners
of individual lots within the Private Project Component shall be subject to the terms and
conditions of this Agreement and, to the extent herein provided, shall be entitled to receive
water service pursuant to this Agreement without amendment or further assignment
Agreement. of this
33. .Entire Agreement. Except as otherwise provided herein, the Pre-annexation
Agreement and this Agreement (including its Addenda), supersede and control all prior
written and oral agreements and representations of the parties. The Pre-Annexation
Agreement to which this Agreemen[ is attached forms the total integrated agreement
among the parties governing the matters provided for herein.
34. .!nterpretation. Titles and paragraph headings shall not be used to alter the
meaning of this Agreement.
35. Time of Essence. Time is of the essence for this A reement.
36. Binding Agreement - Recording. This Agreement is binding upon the parties
hereto, their successors and assigns, and any sale of the Project, the Property to be
Annexed, or any portion of either shall be subject to this Agreement as provided herein.
This Agreement, including the Addenda hereto, shall be recorded with the Pitkin County
Clerk and Recorder, and shall impose covenants running with the land upon all of the
Project 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.
Water Service Agreement (near development) 12/97 trey. 06-98)
13
481709
Page: ~.4 of' ~g
Final Execution Copy 5.9'01 e4/zz/zee3 te:4?n
SILVIA DAVIS PITKIN COUNTY CO R 9S.ee D e.ee ~
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 WrTNESS WHEREOF, the parties have executed this Agreement the date and
year first above written.
ATTEST:
City (::;Terk ~" ~" '-
THE CITY OFASPEN, COLORADO
A Municipal Corporation and
Home Rule City
/g/ate/. Ser*,tce Ag/'eeme~i/ O;ew developmeno 12/97 (Rev 06- 98)
3_4
481709
ATTEST:
By
Approved as to Form~
Landowner
-~x RANCH, LLC
r_~ ~,~.~ ~_ z~,.,~.~Managing Member
PATRICK & sTOWELL, p.~:~
Attorney for LandoWner
W:~oline\102 C\Docs\wsaPSPC 5-9-01 -Final. Wpd
14~ater Service ,4greement (new developmen0 12/97 ('Rev. 06-98~
15
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0
04/22/2003 !0:471:1
SlLVIA DtlVIS PITKIN COUNTY CO R 96 00 D 0.00
Addendum 2
WaterSe~ice Agreement
City of Aspen
-/X Ranch, LLC
Final Execution Copy 5~9-01
WATER RIGHTS
A. Private Project Component Conveyanco.
-/X Ranch, LLC will convey 0.35 cfs in total from its interest in the following specifically
described water rights, on a proportionate basis between the water rights:
1. The Willow Creek Ditch and water right, Priority No. 129, as decreed in Civil Action
No. 132, Garfield County District Court (in former Water District No. 38), with an
adjudication date of May 11, 1889 and an appropriation date of July 1, 1885, for
which the total amount decreed is 3.0 cfs; and
2. The Willow Creek Ditch, First Enlargement and water right, Priority No. 174, as
decreed in Civil Action No. 132, Garfield County District Court (in former Water
District No. 38), with an adjudication date of May 11, 1889 and an appropriation
date of May 1, 1887, for Which the total amount decreed is 3.0 cfs; and
3. The Willow Creek Ditch, 2nd Enlargement and water right, Priority No. 209, as
decreed in Civil Action No. 491, Garfield County District Court (in former Water
District No. 38), with an adjudication date of June 23, 1892, and an appropriation
date of April 15, 1891, for which the total amount decreed is 30.0 cfs, and
4. The Herrick Ditch and water right, Priority No. 440¼, as decreed in Civil Action No.
3330, Garfield County District Court (in former WaTer District No. 38), with an
adjudication date of February 5, 1940, and an appropriation date of October 1,
1890, for which the total amount decreed is 9.3 cfs, absolute; and
5. The Herrick Ditch and water riqht, Priority No. 683, as decreed in Civil Action No.
4613, Garfield County District' Court (in former Water District No. 38), with an
adjudication date of June 20, 1958, and an appropriation date of August 1, 1951,
for which the total amount decreed is 51.56 cfs, absolute.
B. .Conveyance of Dedicated Raw Water Rights.
-/X Ranch, LLC will convey an amount of water sufficient to meet the lesser of (1) the raw
water irrigation requirements of the open space associated with the Public Project
Component or (2) the irrigation requirements of the number of acres, not to exceed ten,
historically irrigated on the 20-acre parcel committed to the Public Project Component as
shown on Exhibit "B" to the Pre-Annexation Agreement as these terms are defined in the
Page: 19 of~ 19
04/22/2003 10:47R
SILVI~ DAVIS PITKIN COUNTY CO R 96.00 D 0.00
~ ' Final Execution Copy 5-9-01
Water Service Agreement, which amount of water shall be computed on the basis of 0.09
cfs per acre. The water shall be conveyed proportionately from the -/X Ranch, LLC's
interest in the following specifically described water rights:
1. The Willow Creek Ditch and water right, Priority No. 129, as decreed in Civil Action
No. 132, Garfield County District Court (in former Water District No. 38), with an
adjudication date of May 11, 1889 and an appropriation date of July 1, 1885, for
which the total amount decreed is 3.0 cfs; and
2. The Willow Creek Ditch, First Enlargement and water right, Priority No. 174, as
decreed in Civil Action No. 132, Garfield County District Court (in former Water
District No. 38), with an adjudication date of May 11, 1889 and an appropriation
date of May I, 1887, for which the total amount decreed is 3.0 cfs; and
3. The Willow Creek Ditch, 2nd Enlargement and water right,
decreed in Civil Action No. 491, Garfield County District Co Priority No. 209, as
urt (in former Water
District No. 38), with an adjudication date of June 23, 1892, and an appropriation
date of April 15, 1891, for which the total amount decreed is 30.0 cfs; and
4. The Herrick Ditch and water right, Priority No. 440½, as decreed in Civil Action No.
3330, Garfield County District Court (in former Water District No. 38), with an
adjudication date of February 5, 1940, and an appropriation date of October 1
1890, for which the total amount decreed is 9.3 cfs, absolute; and '
5. The Herrick Ditch and water right, Priority No. 683, as decreed in Civil Action No.
4613, Garfield County District Court (in former Water District No. 38), with an
adjudication date of June 20, 1958, and an appropriation date of August 1, 1951
for which the total amount decreed is 51.56 cfs, absolute. '
The amount to be conveyed for the Dedicated Raw Water Rights is of the total water
right decreed and is further limited to the irrigation of not more than the total acres
determined to be open space, which in any event shall not exceed the irrigation
requirements of the historically irrigated acreage on the 20-acre parcel, not to exceed 10
acres.
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Final Execution Copy 5-9-01
Addendum 2
Water Service Agreement
CitY of Aspen
-IX Ranch, LLC
WATER RIGHTS
A. Private Project Component Conveyance.
-/× Ranch, LLC will convey 0.35 cfs in total from its interest in the following specifically
described water rights, on a proportionate basis between the water rights:
1. The Willow creek Ditch and water right, Priority No. 129, as decreed in Civil Action
No..132, Garfield County District Court (in former Water District No. 38), with an
adjudication date of May 11, 1889 and an appropriation date of July 1 1885, for
which the total amount decreed is 3.0 cfs; and. '
o
The Willow Creek Ditch, First Enlargement and water riqht, Priority No. 174, as
decreed in Civil Action No. 132, Garfield County Dis~rict'Court (in former Water
District No. 38), with an adjudication date of May 11, 1889 and an appropriation
date of May 1, 1887, for Which the total amount decreed is 3.0 cfs; and
The Willow Creek Ditch, ~nd Enlargement and water right, Priority No. 209, as
decreed in Civil Action No. 491, Garfiel'd CountY District Court (in former Water
District No. 38), with an adjudication date of June 23, 1892, and an appropriation
date of April 15, 1891, for which the total amount decreed is 30.0 cfs, and
The Herrick Ditch and water right, Priority No. 440%, as decreed in Civil Action No.
3330, Garfield County District Court (in former Water District No. 38), with an
adjudication date of February 5, 1940, and an appropriation date of October 1,
1890, for which the total amount decreed is 9.3 cfs, absolute; and
The Herrick Ditch and water right, Priority No. 683, as decreed in Civil Action No.
4613, Garfield County District Court (in former Water District No. 38), with an
adjudication date of June 20, 1958, and an appropriation date of August 1, 1951,
for which the total amount decreed is 51.56 cfs, absolute.
B. Conveyance of Dedicated Raw Water Rights
-/X Ranch, LLC will convey an amount of water sufficient to meet the lesser of (1) the raw
water irrigation requirements of the open space associated with the Public Project
Component or (2) the irrigation requirements of the number of acres, not to exceed ten,
historically irrigated on the 20-acre parcel committed to the Public Project Component as
shown on Exhibit "B" to the Pre-Annexation Agreement as these terms are defined in the
. . ~. .. Final Execution Copy 5-9-01
Water Service Agreement, which amount of water shall be computed on the basis of 0.09
cfs per acre. The water shall be conveyed proportionately from the -/X Ranch, LLC's
interest in the following specifically deScribed water rights:
The Willow Creek Ditch and water right, Priority No. 129, as decreed in Civil Action
No. 132, Garfield county Disti:ict C~urt (in former Water District No. 38), with an
adjudication date of May 11, 1889 and an appropriation date of July 1 1885, for
which the total amount decreed is 3.0 Cfs; and '
The Willow Creek Ditch, First Enlargement and water riqht, Priority No. 174, as
decreed in Civil Action No. 132, Garfield County District'Court (in former Water
District No. 38), with an adjudication date of May 11, 1889 and an appropriation
date of May 1, 1887, for which the total amount decreed is 3.0 Cfs; and
The' Willow Creek Ditch, 2nd Enlargement and water right, Priority No. 209, as
decreed in CMl A'~ti~i~ NCJ~ '4'91, "~'~rfield County District Court (in former Water
District No. 38), with an adjudication date of June 23, 1892, and an appropriation
date of April 15, 1891, for which the total amount decreed is 30.0 cfs; and
The Herrick Ditch and water right, Priority No. 440¼, as decreed in Civil Action No.
3330, Garfield County District Court (in former Water District No. 38), with an
adjudication date of Febru. ary 5, 1940, and an appropriation date of October 1,
1890, for whicl~ the total amount decreed is 9.3 cfs, absolute; and
The Herrick Ditch and water right, Priority No. 683, as decreed in Civil Action No.
4613, Garfield County District Court (in former Water District No. 38), with an
adjudication date of June 20, 1958, and an appropriation date of August 1, 1951,
for which the total amount decreed is 51.56 cfs, absolute.
The amount to be conveyed for the Dedicated Raw water Rigl~ts is of the total water
right decreed and is further limited to the irrigation of not more than the total acres
determined to be open space, which in any event shall not exceed the irrigation
requirements of the historically irrigated acreage on the 20-acre parcel, not to exceed 10
acres.