HomeMy WebLinkAboutordinance.council.032-77(Series of f~?7 )
AN ORDINANCE GRANTING A FRANCHISE BY THE CITY
OF ASPEN, PITKIN COUNTY, COLORADO, TO HOLY CROSS
ELECTRIC ASSOCIATION, INC., ITS SUCCESSORS AND
ASSIGNS, TO LOCATE, BUILD, CONTRUCT, ACQUIRE,
PURCHASE, MAINTAIN AND OPERATE INTO, WITHIN AND
THROUGH A PORTION OF THE CITY OF ASPEN HEREIN
DESCRIBED, ALL NECESSARY NEEDFUL AND CONVENIENT
POLES, POLE LINES, POSTS, WIRES, TRANSFORMERS,
GUY POSTS AND GUY WIRES, APPARATUS, APPLIANCES
AND WORKS, FOR THE PURCHASE, GENERATION, TRANS-
MISSION AND DISTRIBUTION OF ELECTRICAL ENERGY,
AND TO FURNISH, SELL AND DISTRIBUTE SAID ELEC-
TRICAL ENERGY TO THE INHABITANTS OF A PORTION OF
THE CITY OF ASPEN HEREIN DESCRIBED, FOR LIGHT,
HEAT AND POWER OR OTHER PURPOSES BY MEANS OF
CONDUITS, CABLES, POLES AND WIRES STRUNG THEREON,
OR OTHERWISE, ON, OVER, UNDER, ALONG, ACROSS AND
THROUGH ALL STREETS, ALLEYS, VIADUCTS, BRIDGES,
ROADS, LANES AND OTHER PUBLIC WAYS AND PLACES
IN SAID CITY OF ASPEN, AND FIXING THE TERMS AND
CONDITIONS THEREOF.
of
same
NOW, THEREFORE, BE IT
OF THE CITY OF ASPEN, COLORADO:
Section 1
Whenever the word City is
shall designate the City of Aspen,
WHEREAS, the City and Holy Cross, by agreement dated
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. .~_~? ..... ~ , 1977, have provided for a grant
franchise and the electorate of the City have approved the
at the general election held November 2, 1976.
ORDAINED BY THE CITY COUNCIL
hereinafter employed, it
Pitkin County, Colorado,
the Grantor, and whenever the word Company is used, it shall
designate not only Holy Cross Electric Association, Inc., a
Colorado corporation, the Grantee, but also its successors and
assigns.
Section 2
There is hereby granted to the Company the right,
privilege and authority to locate, build, construct, acquire,
purchase, extend, maintain al~d operate into, within and through
all of the said City as the same is now constituted or as the
same may be enlarged or expanded from time-to-time, excluding
therefrom an area within the following described boundaries:
Beginning at a point lying easterly of Block
40 in the East Aspen Townsite, where the
easterly extension of the center of Dean Street
intersects the center of the Roaring Fork
River; thence westerly along the center of
Dean Street to the center of South Monarch
Street; thence northerly along the center of
South Monarch Street to the center of Durant
Avenue; thence westerly along the center of
Durant Avenue to the center of South Garmisch
Street; thence northerly along the center of
South Garmisch Street to the center of Cooper
Avenue; thence westerly along the center of
Cooper Avenue to its intersection with the
boundary of the Original Aspen Townsite;
thence northwesterly along the boundary of
the Original Aspen Townsite to the center of
South Fifth Street; thence northerly along the
center of South Fifth Street to the center of
West Hopkins Avenue; thence westerly along the
center of West Hopkins Avenue to the center of
South Seventh Street; thence northerly along the
center of South Seventh Street to the center of
Main Street; thence westerly to the southeast
corner of the Villa Annexation, filed August 18,
1972, in Plat Book 4 at Page 270, Pitkin County,
Public Records; thence westerly along the
southerly boundary of the Villa Annexation to
the southwest corner thereof, thence northerly
along the westerly boundary of the Villa Annexa-
tion to the northwest corner thereof, thence
easterly along the northerly boundary of the
Villa Annexation to its intersection with the
boundary of the Original Aspen Townsite; thence
northerly along the boundary of the Original
Aspen Townsite to the center of West Smuggler
Street; thence easterly along the center of West
Smuggler Street to its intersection with the
boundary of the Original Aspen Tow~asite; thence
southeasterly along the boundary of the Original
Aspen Townsite to its intersection with the boundary
of the Trueman Neighborhood Commercial Project, filed
April 8, 1977, in Plat Book 5, at Pages 70 through 75
inclusive, of the Pitkin County, Colorado, Public
Records; thence northeasterly along the boundary
of the Trueman Neighborhood Commercial Project
to its intersection with the center of Puppy
Smith Street; thence southeasterly along the
center of Puppy Smith Street to the intersection
of Puppy Smith Street projected with the
easterly right-of-way of Mill Street; thence
southerly along the easterly right-of-way
of Mill Street a distance of 63 feet, more or less,
to the intersection of the easterly right-of-way
of Mill Street with the southwest corner
of a tract of land described in Book 193 at
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Page 278, Pitkin County, Colorado, Public
Records; thence southeasterly along the boundary
of the said Tract of land described in said
Book 193 at Page 278 a distance of 120 feet,
more or less; thence northeasterly along the
southeasterly boundary line of said Tract of
land described in Book 193 at Page 278
to the intersection of said southeasterly
boundary line projected with the center of
the Roaring Fork River; thence easterly and
southerly along the center of the Roaring
Fork River to the point of beginning; said
excluded area being hereinafter referred to
as the "Municipal Service Area";
all necessary, needful and convenient poles, pole lines, posts,
wires, transformers, guy posts and guy wires, apparatus, appli-
ances and works, for the purchase, generation, transmission and
distribution of electrical energy, with the right and privilege
for the period and upon the terms and conditions hereinafter
specified to furnish, sell, and distribute said electrical
energy to the inhabitants of the City in all areas, excluding
the said Municipal Service Area, for light, heat and power or
other purposes, by means of conduits, cables, poles with wires
strung thereon, or otherwise, on, over, under, along, across
and through any and all streets, alleys, viaducts, bridges,
roads, lanes and other public ways and places in said City
(excluding therefrom the said Municipal Service Area), and on,
over, under, along, across and through any extension, connec-
tion with or continuation of the same, and/or on, over, under,
along, across and through any and all such new streets, alleys,
viaducts, bridges, roads, lan~s and other public ways and
places as may be hereafter laid out, opened, located or con-
structed within the territory now or hereafter included in the
boundaries of said City.
Section 3
The Company is further granted the right, privilege
and authority to excavate in, occupy and use any and all
streets, alleys, viaducts, bridges, roads, lanes and other
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public ways and places described in Section 2 of this Ordi-
nance, under the supervision of the properly constituted
authority of the City for the purpose of bringing electrical
energy into, within and through the City (excluding the said
Municipal Service Area) and supplying electrical energy to the
inhabitants of the said City (excluding the said Municipal
Service Area) and in the territory adjacent thereto outside of
the said City, and further to trim or cut down such trees and
shrubbery and to control the growth of the same by chemical means,
machinery, or otherwise, as may be reasonably necessary to
effect said purpose or purposes, provided~ however, that the
Company shall so locate its plants, substations, works, trans-
missions and distribution structures, lines, equipment and
conduits within the City as to cause minimum interference
with the proper use of streets, alleys and otherpublic ways
and places and to cause minimum interference with the rights
or reasonable convenience of property owners whose property
adjoins any of the said streets, alleys or other public ways
and places. Should it become necessary for the Company, in
exercising its rights and performing its duties hereunder, to
interfere with any sidewalk, pavement, water main, sewer or
any other public or private improvement, the Company shall
repair or cause to be repaired and restored to its original
condition such sidewalk, graveled or paved street, road, alley,
water main, sewer, or other public or private improvement after
the installation of its poles, conduits or other structures.
The Company shall so maintain its structures,
apparatus, equipment, poles, wires and conduits as to afford
all reasonable protection against injury or damage to persons
or property therefrom, and the Company shall save the City
harmless from all liability or damage and all reasonable expenses
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necessarily accruing against the City arising out of the
negligent exercise by the Company of the rights and privileges
hereby granted; provided, that the Company shall have had
notice of the pendency of any action against the City arising
out of such exercise by the Company of said rights and privi-
leges and be permitted at its own expense to appear and defend
or assist in the defense of the same.
If at any time it shall be necessary to change the
position of any pole, conduit or service connection of the
Company to permit the City to lay, make or change street grades,
pavements, sewers, water mains or other City works, such
changes shall be made by the Company at its own expense.
The Company shall have the right to make such use of
its poles and other property, other than the uses contemplated
in this ordinance as it deems proper so long as such other use
does not interfere with the supplying of electrical energy.
Section 4
The Company shall furnish electrical energy within
the corporate limits of the City or any addition thereto
(excluding the said Municipal Service Area), to the inhabitants
thereof, and to any person or persons or corporation doing
business in the City or any addition thereto (excluding the
Municipal Service Area), at the applicable and effective rates
and under the terms and conditions set forth in the Rate Sche-
dules, Standards for Service, Rules and Regulations, and Ser-
vice Connection and Extension Policies, on file with or fixed
by The Public Utilities Commission of the State of Colorado,
jurisdiction in the
or by any other competent authority having
premises.
facilities,
Section 5
The Company shall not, as to rates, charges, service,
rules, regulations or in any other respect make or
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grant any preference or advantage to any corporation or person
or subject any corporation or person to any prejudice or dis-
advantage, provided that nothing in this grant shall be taken
to prohibit the establishment from time-to-time of a graduated
scale of charges and classified rate schedules to which any
customer coming within an established classification would be
entitled.
Section 6
Company will
from time to time during the term of
this franchise make such enlargements and extensions of its
distribution system as the business of the Company and the
growth of the City justify, in accordance with its Standards
for Service, Rules and Regulations, and Service Connection and
Extension Policies for electric service concurrently in effect
and on file with The Public Utilities Commission of the State
of Colorado or other competent authority having jurisdiction
in the premises.
Section 7
The Company,
from time to time may promulgate such
rules, regulations, terms and conditions governing the conduct
of its business, including the utilization of electrical energy
and payment therefor, and the interference with, or alteration
of any of the Company's property upon the premises of its
customers, as shall be necessary to insure a continuous and
uninterrupted service to each and all of its customers and the
proper measurement thereof and payment therefor.
Section 8
As a further consideration for this franchise, and
~ccepted by the City in lieu of all occupancy and license taxes
and all other special taxes, assessments or excises upon the
conduits, poles, wires or other property of the Company, or
other levies that might be imposed, either as a franchise tax,
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occupation tax, Occupancy tax, license tax, permit charge, or
for the inspection of meters, poles, conduits or other property
of the Company, or otherwise, the Company shall pay to the City
a sum equal to three percent (3%) of its gross revenue (exclu-
sive of all federal and state excise taxes) derived from the
sale of electricity within the corporate limits of the City for
electrical energy furnished for light, heat or power, or other
purposes. Payment shall be made on or before thirty (30) days
after the end of each quarter of each calendar year for the
three (3) month period next previous, but shall be adjusted for
the portions of the calendar quarters at the beginning and at
the end of this franchise. For the purposes of ascertaining or
auditing the correct amount to be paid under the provisions of
this paragraph, the Company shall file with the Director of
Finance of the City, or such other official as shall be desig-
nated by the City from time-to-time, a statement, in such reas-
onable form as the City may require, showing the total gross
receipts received by the Company from the sale of electric
energy to consumers located within the boundaries of the City
within the preceeding three (3) month period, and the City Dir-
ector of Finance and/or any official appointed by the City
Council of said City shall have access to the books of said Com-
pany for the purpose of confirming the gross income received
from operations within said City.
In the event the said tax levied herein should be de-
clared invalid and/or shall be set aside by a court of competent
jurisdiction, then, and in such event, in lieu thereof, the City
may thereafter levy any appropriate tax upon the Company, not to
exceed in any one calendar year 3% of the Company's gross revenue
(exclusive of all federal and state excise taxes) derived from
the sale of electricity within the corporate limits of the City
for electrical energy furnished for light, heat or power, or
other purposes for that year.
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Section 9
This ordinance shall be in full force and effect
from and after its passage as by law required, and after
approval by the Colorado Public utilities Commission, and the
terms, conditions and covenants hereof shall remain in full force
and effect for a period of twenty (20) years from and after such
approval by the colorado Public Utilities Commission.
Section 10
All poles, pole lines, posts, wires, transformers,
guy posts and guy wires, apparatus, appliances and works,
conduits, plants, substations or other materials or objects
pertaining thereto, used or placed by the Company within the
City shall be and remain the property of the Company.
Section 11
Nothing in this ordinance shall be so construed as
to prevent the Company from assigning all of its rights, title
or interest, gained or authorized under or by virtue of the
terms of this ordinance, with the consent of said City, which
said consent shall not be unreasonably withheld.
Section 12
The right is hereby reserved to the City to adopt,
from time-to-time, in addition to the provisions herein
contained, such ordinances as may be deemed necessary in the
exercise of its police power, provided that such regulations
shall be reasonable and not inconsistent with the rights herein
granted, and not in conflict with the laws of the State of
Colorado, or with orders of other authorities having jurisdic-
tion in the premises.
Section 13
If any provision of this ordinance or the application
thereof to any person or circumstance is held invalid, such
invalidity shall not affect other provisions or applications
of the ordinance which can be given effect without the invalid
provision or application, and to this end the provisions of
this ordinance are delcared to be severable.
Section 14
A public hearing on the ordinance shall be held on
1977, at 5:00. P . M. in the City
June 13 -'
Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED published as provided
by law by the City Council of the City of Aspen, colorado,
at the City of A.spen on..~e 23rd
at its regular meeting ield ·
day of May ~///__. ~/_/k~__ /.//~ .... ,
/ Yo% /
ATTEST:
Deputy City Clerk
FINALLY adopted,
day of
ATTEST:
passed and approved on the
City Clerk
RECORD OF PROCEEDINGS
100 Leaves
STATE OF COLORADO )
) ss
COUNTY OF PITKIN )
CERTIFICATE
ation, published in
I, Kathryn S. Hauter, City Clerk of Aspen, Colorado,
do hereby certify that the above and foregoing ordinance was
introduced, read in full, and passed on ~.~z_~
reading at.a regular meeting of the City Council of the
City of Aspen on ~ .~ ~,~ , 197 7., and publish-
ed in the Aspen Times a weekly newspaper of general circul-
the City of Aspen, Colorado, in its
issue of ~L~_ ~,~. , 197-~ , and was finally adopted
and approved at a regular meeting of the City Council on
~c /o , 197 ~ , and ordered published as
Ordinance No. /~ , Series of 1977 , of said City, as
provided by law.
IN WITNESS WHEREOF, I have hereunto set my hand and
the seal of said City of Aspen, Colorado, this /~t
day of ~ , 197 '?
Kathryn ~. Hauter, Ci,ty Clerk
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A G P E I.: M I 1-1 T
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TII IS AGRI,E."J : NT, made and entered icito betwoen THE. CITY
OF A PE'I, a Municipal corporation of the State of Colorado the
"City") , and THE HOLY CROSS ELECTRIC ASSOCIATION, INC. , a Colo-
r. ad o cooperative corporation ("Holy Cross") , whnrehl ' it .is
stipulated and agreed as follows:
RECITALS
a. Holy Cross operates its electric utility and
distributes elect.ricaJ_ energy- to the public within (and with-
out) the corporate limits of the. City of. Aspen and it °r1ishes
to pursue its in -city operations- under the auspices of a duly
authorized franchise, all as provided by law.
b. The City wishes to facilitate t io issuance of a
chant of franchise to secure aut-hority to levy a franchise tax
so as to adequately compensate: the City for the use by Holy
Cross of those streets, alleys, lanes -and other public way:;
used by Iioly Cross in the distributing and transmitting of
eloct-rir_al energy.
c. Any grant of frannchiso %G:it.hin t:he City iims-t rr.-c 'i.v;e
voter approval pursuant to Section J_1.9 of the Aspen Home Rule
Charter, and -the voters of the City of Aspen approved the grant
of a franchise to Hold. Cross on November 2, 1976.
d. The parties wish to, by agreement-, determine
under t;hat terms and conditions a franchise will be appr_bv ed
by the Aspen City Council, and further establish' procedures
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for. the coiivu�, ince . b� holy Cross .to the. City of Aspen of car•-
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twin real pr-oporty which will I.,n a con�'ition •fc�r-._cJ*rant of th(!
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f ranc-hi <e }fir opcm, eCI .
o. IIoJy CV0.3S is a of: f-unc3J f:r-om thr Rural.
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Eloct-r if ication Administration ("REA") , pus- .want to to-o. Rural
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Elect-rific<<tic�n Ac:t of 1936, a.-, Amended (7 U.S.C. 901, et suq- )
and also obtains supplemental financing from t,imc.-to-time from
the National Rural Utilities Cooperative -Finance Corporation
("CFC"); both of said lenders having mortgages on all the pres-
ently owned and after -acquired properties of Holy Cross, and .
their approval of the transfers of property arhticipated lherein
and the release of their liens must be obtained as hereinafter
provided.
f. Holy Cross is a public utility as the same is
defined in • 1973 C.R.S. 40-1--103 and is subject: to the jurisdic-
tion of the Colorado Public Utilities Commission (PUC) , whose
approval of the franchise hereinafter referred to must- be ob-
tained pursuant to law, and whose approval of the transfer: of
assets hereinafter contemplated, must also be obtained.
AGREEME14T
VOW, THEREFORE, in consideration of tllc mutual hro;aises
and covenants of the parties hereto, the adequacy of which is
hereby ackno:aledged, it is agreed as follows:
1, Warehouso Property. holy Cross t-:iil convey to
the City its existing wrarehouse building located on the real
property described in Paragraph Numbered 2 hereafter, free and
clear of all liens and encumbrance. Such conveyance shall be
.made by a Bill of Sale, substantially in the form of "Exhibit A"
attached hereto and by this reference Inado a part hor.eof. Such
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conveyance, properly executed, shall: be delivered to the City on
the "closing date," as hereafter defined.
2. Roarinq Fork Real Property. holy Cross will con-
vey to the City, its presently owned real property (e xcludiny
the blhll.cllrlc1 structures and fixtures located thereon) located
within UIC. City on the Roaring Poi:.-, River, f:roe ant; clear of all
1-ns and encumbrances, under the torms and 'conditions, and sub-
ject to t;;i. restrictions, in cic I.ivol.-Y alld/or possibility of
reverter or re-entry as hereafter specified. Such convoyanc;e
shall be by Special Warranty Deed substantially, in the form of
"Exhibit B", attached hereto and by this reference made a part
hereof. Said Conveyance, properly executed, shall be delivered
to the "Escrow Agent" on the said."closing date."
3. Cash Payment. The City shall pay to Holy Cross
the*sum of One I3undred Thousand Dollars ($100,000.00) on the
said "closing date," which said payment constitutes the consid-
eration for the said warehouse building, described in Paragraph
Numbered 1 above. `
4. Franchise. The City shall, ' by its City Council,
subject to ordinance adoption, grant to holy Cross a franchise
for a term of twenty ((2) years permitting holy Cross to con-
tinue to distribute, furnish -and sell electrical energy and
render related services within a Portion of the boundaries of
the City under such terms and conditions and within such area
as are contained and described in the form of Ordinance, attached
hereto and marked "Exhibit C," and by this reference made a part
hereof.
It is agreed that any consurner now being served
by either party hereto, within the area hereafter to be served
by the other as provided herein, shall continue to be served
by the party hereto presently serving such consumor until new
facilities are constructed to such consumer by the party' who
shall hereinafter be entitled to serve such consumer.
5. Franchise Tax. 11o1y Cross will pay to the City,
pursuant to .,said Franchise Ordinance, a franchise: -tax equal to
three percent (30,0 of the gross revenue (exclusive of all fed-
eral an(l state excise taxes) receiveci by Holy Cross from the
sale of electric energy to consumers located within the boL*.nd-
cries of Lhe City as, not dr.fir'.,_d or as. the samr, may be chanUc d
by anne.cati.on to or disconnections from the city during the
term of said franchise. Within thirty (30) days after the end
of each quarter of each calendar year during the term of said
franchise, coiftwencing with the expiration of the first quarter
after the City has granted Holy Cross a franchise as herein
provided, and -after .approval by the PUC; Holy Cross shell file
with the Director of Finance of the City, a statement, in such
reasonable form as the City shall require, showing the total
gross receipts received by Holy Cross from the sale of electric
energy to consumer's located within the boundaries of the City,
within the preceding three (3) month period, and such return
shall be. acconipcAnied by a payment to the City of the franchise
tax due for that period.
In the event the said 3% franchise tax; hereinabove
described should be declared invalid and/or shall he set aside
by a court of competent jurisdiction, then, and in such event,
in lieu thereof, the City may thereafter levy an appropriate
and legal tax upon the Company, said tax together e;ith all
other franchise taxes, occupation taxes, license taxes, permit
charges, inspection charges, or otherwise, is not to exceed in
any one calendar year 3% of the Company's gross revenue derived
from the sale of electricity within the corporate limits of the
City for electrical energy furnished for light, heat or power,
or other purposes for that year. g
6. . III Cross Action. holy Cross further promises
and agrees:
(a) To forthwith submit this Agreement. to RF.l,
and CFC and attempt to secuu:e :
(1) their corisent to the transfers of prop-
erty anticipated heroin; and
a
(2) relea.;:)s .of their liens to be deli %,erect
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at the "closing date" herein provided. �
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(b) To notify the City promptly upon the receipt
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of said approvals anti releases and furnish the City
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i copies of said Releases for its examination. li
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(c) To expeditiously proceed to acquire a new
location for the location of its necessary warehouse :i
office complex, including employee housing and apart-
_
ments and related facilities, to replace those facil-
ities to be transferred to the City as provided herein,
acid to secure the requisite county approval, building !
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permits, use variances as necessary, and other permis-
sions and permits, for the location and construction of
said facilities.
(d) Upon the :Final passage of the said franchise
ordinance and franchise ta)� by the City Council as pro-
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vided by law, aril upon obtaining the aforesaid approvals
specified in Paragraphs 6(a) and 6(c) above mentioned, !
to expeditiously submit the said franchise ordinance
and tax, together with the proposed transfers of prop-
erty herein provided for, to the PUC for. approval.. The
City agrees to join and cool), -rate with I:oly Cross in
seeking PUC approval.
(e) To diligently proceed to clear the title to i
the said "Roaring pork real property" described in
.Paragraph Nimibered 2 herein, by court action or_ ;; other-
wise; it being understood that there are defects in
the title thereto, and that a quiet title suit to clear
title has been filod by Holy Cross :,n tile. Pitkin County,
Colorado, District: Court, N•rliich said action Jnay not. be
completed at the time of tho execution of this agreement.
' 7. CitY Action. The City further promises and agroos:
(a) To hromp t.l.y when roquOst:ed by Holy Cross, to
furni:;h, I.11ljl(I and CO,,3t:rUCt: ",11i.t:ablO. ;lrld c-IJMJtwiA'tt? W;J.t(�I_
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service to holy Cross's new location of its warehouse -
office complex (including housing and apartments and .
related facilities), to be located in Section 35,'
Township 9 South, Range 85 West, Fit.kin County, Colo-
rado, 'pursucint to the terms and conditions specified
in that certain Agreement dated
1977, by and between The City of Aspen, Colorado,
He.nry L. Stein, Iioly ,Cross Electric Association, Inc. ,
and Colorado-Ute Electric Association, Inc., reference
to which is heresy made for greater certainty, without
assessing costs, contribution: or fees to holy Cross
whatsoever, except as in said Agreement provided.
It is understood that Holy Cross will thereafter
pay .for the water consurned on' said premises, at the
City's usual rates.
(b) During the term of said franchise ordinance,
not to assess any form of. license or occupation tax, or
to levy any other excise or exaction upon holy Cross,
whatever the forni of such ta:,,, license or levy may be,
including, but not by way of limitation, franchise
taxes, license taxes, odcupati.on taxes, use of streets,
alleys, public way or right-of-way ta.m.es, fees or
charges except as provided i n said Fxhi bit C; pr4ovided,
however, the taxes, charges, levies and exactions
herein described shall not be deemed to include (Jen-
oral property taxes, special assesslnonts for local
improvelnexiLs, or sale i Or us(_' taxes by the City.
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(c) To allow Holy Cross a reasonable time after
I the "closing date" to remove al). its personal property
and fixtures, including a mobile home located thereon,
from the said warehouse and said Roaring fork teal
I property, subject to the.provisions of Paragraph Num-
bered 12 (a)" hereafter.
8. Closinq Data. The "closing date" shall be at
10:00 o'clock A. M. in the general offices of Holy Cross in
Glenwood Springs, Colorado, on a date to be mutually agreed
upon by both parties hereto, which said date shall. be within
forty-five (4 ;) days after the approval. of the franchise ordi-
nance and franchise tax therein provided for, and the transfer
of property provided for herein, by the PUC. In the event t;ie
"closing date" shall not have occurred within one (1) year from
she date of this Agreement,' unless extended in writing by the
parties iiereto, this Agreement shall be void and of no effect
and each party shall 'e released from all obligations hereunder.
9. Holy Cross's Prerequisites. In the event Holy
Cross is unable
(a) to secure the approval. and consent of this
Agreement by REA and/or CFC; or
(b) to secure a new location suitable in the
sole determination of holy Cross, for its necessary
warehouse -office coiaplex, including employee housi.ncj
and apartments and related facilities; or-
(c) to secure the requisite City and County ap-
provals to locate and construct saidnew.war.e^houso-
office complex:, including employee housing and apart-
ments and related facilities; pr
(d) to secure the approval of the PLIC of: the
transfer of ; roperty covided for herein, and the,
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franchise: ordinance: and franchise tax granted i L- by
the City
then, and in any of such events, this Agreement shall be void J
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and of no effect, and each party shall be released from all ob-
ligations hereunder.
10. City's Prerequisites. In the event the City Council
shall not adopt the said franchise ordinance, attached hereto as
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Exhibit "C", then this ?agreement shall be void and of no effect
• 7
and each party shall be released from all obligations hereunder.
11. Escrow of Roaring Fork seal. PraDorty Conveyance.
On the "closing date," in addition to the transfers a::d payments
herei.nbefore provided for, holy Cross shall deliver t1he convey-
ance to its said real
property ("Exhibit II" •
-to are Escrow 'gent,
(which said delivery
shall not constitute delivery thereof to �
•,.he City and. shall not operate to pass title to said property �
from Holy Cross) and shall also deliver the eaecut .'E'd Releases .
of Mortgages from REA and CFC (which said deli very shall not
i
Operate to release the lien of the said mortgages), pursuant 1-
to the follo"ling terms and conditions, all of which are mutually ; !
agreed upon and accepted by the parties;
(a) The escrow agent shall be an institution to
be mutually agreed upon•by the parties, preferably a !:
national. banking institution.
(b) The escrow agent shall be instructed f-o
(1) 'hold said conveyance ( "Exhibit B") and
Releases of Mortgages and deliver the sam
e
to the City at the end of . the twenty (2 0)
Year franchise period; or
(2) redeliver the said conveyance and Re-
leases of Mortgages to I'Ioly Cros , at such
time during the twenty (20) year f]:ajjchi.se
F
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period as the City may elect to condemn all
or any portion of Holy Cross's property ot-
property rights; or
(3) deliver said conveyance and Releases of
Mortgages to such party or parties, at such
times and upon such conditions as the City
and holy Cross shall, by written document,
executed by its chief executive officers,
direct.
(c) The escrow agent and the parties hereto shall
also agree and promise to comply with the terms, con-
ditions and instructions contained in "Exhibit U,"
attached hereto and by this .reference incorporated
herein.
(d) it is specifically understood and agreed that
in the event the City or any political subdivision with-
in which the City is a part (such as a city -country gov-
ernment, or a special improvement district in which
the City is a part) should condemn arty part of the
property and/or property rights belonging to Iioly
Cross, that the said conveyance and the '.releases of
the REA and CFC liens held by said Escrow Argent shall
be redelivered to Holy Cross, and that the said real
property ,hall continue to be the role Property, of
Holy Cross, subject to the liens of record of REA and
CFC, and the' City shall have no rights-, equity or liens
iIl or against tho said property, except..t:.he option to
purchase as provided in. Paragraph Numbered 13 hereafter.
12. Ci f' s Right to P0sSC: S:,].0." The City may, after
"cloSin(.j" and after fine delivery of the documents and ;om-
pletioll of. I:l►e payment herein %rovidod for.,
(n) oil (:)f t..-o sail Roaring VO).;c rapt].
f
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property described in "r--chibit B" and occupy tho same,
except .that Iioly Cross may rehmairh in possession until
its new warehouse -office complex is" ready for occu-•
panty, such possession by Iioly Cross in all events
shall not exceed t4Ielve '(12) months after the "closing,"
or twelve (1.2) months after the completion of t;he con-
struction of the water main to the property by the City
as provided in Paragraph Numbered 7(a) 'herein, whichever
occurs last;
(b) After taking possession, removch, remodel,
change or alter any or all structures located thereon
at its own expense;
(c) After taking possession, grant utility ease-
ments and rights -of -way on or across the said real
property necessary to serve the property, which said
easements and rights -of: -way shall., upon request by the
City, be joined in by Holy Cross;
(d) After taking possession, lease, rent or other-
wise grant possessory rights to said land, except that
such rights shall be subject to termination without
compensation, penalty or charge from holy Cross should
Iloly Cross be entitled to have the conveyance to said
property redelivered to it; and
(e) After taking possession, construct improve-
ments thereon at the City' s sole expense:, • except that
the surface shall not be subs tantia1ly.altered by
mining or otherwise: changed exccp.t in the. normal and
usual manner necessary for the construction of build-
ings and,/or landscaping.
(f) The City shall, for any time after taking
posse..;, ion, and until it h'eCL'iVCN: title. t0 saidlFlnd,
pay Or cau',e to be pa.d, all. utility clw1i.-ge: and rcnts'
special assessments, taxc!V, on tjj,,� illiprovrments and/or
n,-I s1lall pa se to be
property placed thereon, a y or cau
paid all insurance premiums or costs on any and all,
improvements and/or property placed thereon, and at
sc
the city's expense, lve Holy Cross harmless and
defend
Holy cross against and from . the claims, charges and
liens of mechanics, materialmen or others having any
lien rights in or to said property. for services, labor
or materials furnished thereon, and save Holy Cross
and defend Holy cross against and from any claims,
charges or liability for any injury' or damage to
persons or property occurring on the said real. prop-
erty after the City takes possession thereof aiid con-
tinuing thereafter until such time as Holy Cross May
re -take possession of said property, including court
costs and attorneys' fees.
In the event Holy Cross shall. be entitled to
the re-dolivery of the conveyance to said I.Effld, the
City shall be under no obligation to replace e-isting
improvements or compensate 1-101Y Cross for any improve-
ments now on the site that may have been destroyed or.
moved. Further, in the event of redelivery, all im-
Drovements constructed thereon shall re -Amain thy' ex-
clusive property of the City, shall be deemed to.,
remain personalty and not part Of the real property,
and may be removed by the city within ninety (90)
days after. 1-1oly Cross shill], be entitled.tO re& -livery
of the Conveyance of the land.
(h). The City s11,113. not C.,omillit or permit wastr� on
the said property or allow tl s,-'Mc to be used for any
purpose in violation f the laws of the State of - C010
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rado•or of the lawful ordinances, rules and regulations
of the City of Aspen or the County of Pitkin.
.13.. City's Exclusive Option to Purchase. If at any.
I
time, Holy Cross is entitled to a re -delivery of the conveyance
to the said Roaring Fork real property ("Exhibit B") , the City
I
is granted the exclusive right to purchase the said real property
under the following terms and conditions:
(a) The purchase price shall be the fair market
value of the said real property, uniIllproved, at the
time said option shall be exercised, taking into con-
sideration its highest and best use as an R-15 Resi-
dential Zone as such zone is defined by the Aspen
Zoning Ordinances as of the date of this Agr_�(�mf.-nt,
or as any more profitable use as the same wig be re-
zoned Hereafter.
(b) The City shall elect to exercise said right
to purchase by giving Holy dross notice thereof, in
writing, on or before ninety (90) days after Holy
Cross is entitled to the re -delivery of the convef-
ance to said land.
(c) The completion of: such purchases shall. occur
within ninety (90) days' after receipt of such notice.
at which timz: conveyance. of the said property shall
be made by good and sufficient Special Oarranty,. Dk�ed,
in the fore; of said "Exhibit B", free and- clear of
all liens and encumbrances, whatsoever., and payment
therefor, in full, shall. be made..
(d) Nd valorum taxes shell be prorated as of the
time of the conipletion of the purchase.
J.ri the event the City :.hall not exercisc- its option to purchaso.
as specified hcroin, title to :ill improvements of; a per>»anent
E
nature and to 'all other property not removed by the City within
said ninety (90) days shall remain with the real property and
pass to Holy Cross.
.14. Condemnation by an Authority Other than the City.
In the event all or any part of the said Roaring Fork real prop-
erty described in "Exhibit I;" is condemned by any authority oth,,-r
than the City, while the conveyance thereto is being held by the
said Escrow Agent, the responsibility for defending such.con-
demnation shall be with Holy Cross and/or the City (as their
interests appear) . Any and all amounts received as an award
for such concic-mnation shall be promptly delivered to the said
Escrow Agent to be held by it in an interest bearing account
at a federally insured banking or savings and loan association
as directed in writing by the parties hereto, or in tl-:,_ absence
of receiving such direction within thirty (30) days from the
receipt thereof, in an interest bearing account in a federally
insured banking or savings and loan association of its choice,
and to be distributed as follows:
(a) To be delivere,-1 to the City at they end of
ii s twenty (20) year franchise period, less all
costs including reasonable attorneys' fees, incurred
by Holy Cross in defending such condemnation suit,
which said costs and accrued interest thereon, shall.
be paid to Holy Cross; or q
(b) To be delivered to Holy Cross at such time
as the conveyance to said property is redelivered to
Holy Cross as herein provided, less .all.. costs includ-
ing reasonable attorneys' fens incurr.(ad by the City in
defending such condemnation suit, which said costs and
* accrued interest thereon, shall. be paid to the City.
J.S.. iaxc:lusions. :both i.ng herein contained shall. be
construed to bn a waix-or by th , City of its rights of: e7ni11ont
domain, or its right to the possr.ssion and occupancy of its
streets, alleys and public ways, or its police powers and res-
ponsibilities, which.said rights and duties are specifically.
retained by the City.
16. Relneclies. In addition to the remedies elsewhere
Provided herein, in the event of default or breach of any term
or condition contained herein, the non -defaulting party way
recover such other damages as are proper and may institute
proper proceedings to require the specific performance of this
Agreement or any part hereof.
17. Gover.nm(ntal Power. not11 parties hereto c;i }:no�rl-
edge that the City Council cannot, by reason of this Agreement,
contract in such a manner as to limit its deliberations on
reviewing and approving (or denying approval of) thE: propos(,d
franchise ordinance. In the event such ordinance dogs not
receive Council approval.or should, by the peoples' power of
referendum, be subseq;:ently disapproved by the electorate, the
provisions of this Agreement shall be of no force and effect
and all parties released from the Obligations hereby un:iertakf-�Ii.
18. Binding affect and Survival of This Agree-
Kent and the r.Xhibits "A" through "D" inclusive, attached hereto,
constitute the complete Agreement' between the: parties and thor.e
ha'✓e be!cn Il0 retPre entai'Clons, warranties or conditions ot!1er
than those set forth herein and in the documents'attachehereto
as Exhibits. The terms and conditions of this Agreement a.,,Ld
those contained in the documents attached hereto as Exhibits,
shall. be binding upon the parties hereto, their succcISsors and
assigns, and' the tFrrls, conditions and provisions hereof shall
survive the closing of the t.ransLlC:ti0I1 c 0litc-ripl.ated hc•rei11.
Tl;is Agree?mont shall not be altered, amended or changed except
by %..,r.itton document e::ccut:ed 1), both p.ticu hereto.
19. W! TitAes. Para(jrziph titl�, i.n th.i:; Agroc-
ia(--nt are set our for convenienco only and do -not constitute a
part hereof-.
20.. Waiver of Breach. The waiver of the breach of
any provision of this Agre6ment by either party shall not oper-
ate or Le construed as a waiver of any other or subsequent
breach by either party.
21. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original.
22. 11,otice-s. All notices or other communications
hereunder shall be in writing and shall be deemed to have been
duly given if personalIN/ delivered to t.ne 'Mayor or o-it-, Manager
A
of the City, or.. the General Manager or Pre-sident. of ugly Cross,
if mailed postage prepaid, return receipt requcste:3, addresse,_;,
(a) To the City as follows.:
The City of Aspen
130 South Galena Street
Aspen, Colorado 810511
(b) To Holy Cross as follows:
General Manager
Holy Cross Eiuctric Association, Inc.
p. 0. Box 250
Glenwood Springs, Colorado 8160).
IN 1VV'IT1*114ESS WHEREOF, the parties have caused this Agree -
Went to be executed this 3 _PD day of
r
ATTEST: BY
Cit.-.Y C.10
(CITY SEAL)
HOLY CrIOSS I-MY.MUC ASSOCIATIO!lt 111C-
13y-sa �_O
c r e t a