HomeMy WebLinkAboutresolution.council.042-05RESOLUTION # ~
(Series of 2005)
A RESOLUTION APPROVING A PURCHASE AGREEMENT BETWEEN THE CITY OF
ASPEN, COLORADO, AND ROARING FORK LAND & CATTLE COMPANY, SETTING
FORTH THE TERMS AND CONDITIONS REGARDING THE CITY'S ACQUISTION OF
THE MAROON CREEK HYDROELECTRIC SITE AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a purchase agreement between
the City of Aspen, Colorado, and Roaring Fork Land & Cattle Company, a copy of which
contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that agreement between the
City of Aspen, Colorado, and Roaring Fork Land & Cattle Company, regarding acquisition of
the Maroon Creek Hydroelectric Site, a copy of which contract is annexed hereto and
incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute
said contract on behalf of the City of Aspen.
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of tha~Lr-e4olution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held ~ / 3, ~c, ' ·
Kaflu~ Koch, City Clerk kx.
FINAL 06/05/05 rev 1:55 p.m.
HYDRO PLANT AGREEMENT
This Agreement ("Agreement") is entered into this day of ,2005 by
and between Wyrick G. Deane (''Mr. Deane"), T Lazy Seven Ranch Corp. (T Lazy Seven) and
the City of Aspen ("City of Aspen" or "City").
WHEREAS, Roaring Fork Land & Cattle Co., a Colorado corporation (''Roaring Fork")
and the City of Aspen previously entered into that certain Lease Agreement (''Lease Agreement")
dated August 7, 1984, for the lease of certain real property and relating to the operation of a
hydro-electric power generating facility; and
WHEREAS, the City of Aspen operates its Maroon Creek hydro-electric facility
(''Maroon Creek Plant") on the real property described in the Lease Agreement; and
WHEREAS, the Lease Agreement bestowed upon Roaring Fork the right to receive 45%
of net revenues from the operation of the Maroon Creek Plant and the right to future discounted
power sales; and
WHEREAS, Roaring Fork assigned all of its rights and obligations under the Lease
Agreement to Mr. Deane, including the right to receive 45% of the net revenues from the
operation of the Maroon Creek Plant and the right to future discounted power sales, pursuant to
an Assignment and Assumption of Lease Agreement dated April 20, 2001; and
WHEREAS, T Lazy Seven is the owner of certain water rights in the Herrick Ditch,
Priority #440 1/2 and further described as 4.0 cfs of 9.3 cfs decreed to the Herrick Ditch Priority
No. 440 1/2, decreed in Case No. 3330 on February 5, 1940, with a priority date of October 1,
1890 (''Herdck Ditch Rights") which Herrick Ditch Rights have been historically used (together
with the remainder of the 9.3 cfs of Priority No. 440 ½ ) primarily for irrigation of 93 acres
located in the West Half of the Northwest Quarter of Section 22, the Southeast Quarter of the
Northeast Quarter and the Southeast Quarter of Section 21, all in Township 10 South, Range 85
West of the 6t~ P.M. in Pitkin County, Colorado; and
WHEREAS, the City of Aspen now desires to acquire and Mr. Dearie desires to sell all of
Mr. Deane's revenue-sharing interest in the Lease Agreement, to-wit, his right to receive 45% of
the net revenues from the operation of the Maroon Creek Plant; and
WHEREAS, the City of Aspen and Mr. Deane now desire to settle forever all claims Mr.
Deane had, has or may have to past revenues that may be owed to Mr. Deane pursuant to the
terms of the Lease Agreement, and to further define, as herein provided, the terms and conditions
of Mr. Deane's right to future discounted power sales as provided for in the Lease Agreement.
NOW, THEREFORE, in consideration of the premises, mutual promises and covenants
1
FINAL 06/05/05 rev 1:55 p.m.
herein, the parties agree as follows:
1. 45% Interest in Revenues. The City of Aspen shall pay to Mr. Deane cash in the
amount of $480,000 (the "$480,000 Payment") for Mr. Deane's 45% interest in past
and future net revenues from the operation of the Maroon Creek Plant. The $480,000
Payment is specifically conditioned upon (a) the City of Aspen immediately applying
to Pitkin County for approval of an exempt subdivision of the Roaring Fork real
property as shown on the map attached as Exhibit A hereto, and incorporated herein
by reference; (b) Pitkin County granting the aforementioned subdivision approval;
and (c) Mr. Deane's corporation, T Lazy Seven, granting to the City of Aspen a right
of first refusal for the Herrick Ditch Rights as described below. The $480,000
Payment shall be due immediately upon satisfaction of all oftbe above-described
conditions.
2. Renewable Source Energy Credits. Upon receipt of the $480,000 Payment, Mr.
Dearie will assign to the City of Aspen any and all renewable source energy credits
attributed to his revenue-sharing interest in the Maroon Creek Plant.
3. Right of First Refusal for Water Rights. T Lazy Seven hereby grants to the City of
Aspen a right of first refusal for the Herrick Ditch Rights as herein provided. For a
period of twenty years from the date hereof, the City shall have the first right to
purchase the Herrick Ditch Rights in the event that an offer is received from a bona
fide purchaser to purchase or lease all or any portion of the Herrick Ditch Rights
separate and apart from a sale or lease of the real property on which the Herrick Ditch
Rights have historically been used, such property being described on Exhibit B. Upon
receipt of such offer, Mr. Deane shall promptly provide notice thereof to the City, and
the City shall have 45 days within which to agree to purchase or lease the Herrick
Ditch Rights (or such portion thereof that is subject to the offer) on the terms and
conditions of the offer. If the City fails or declines to exercise its right of first refusal
within the 45-day period, the Herrick Ditch Rights, or such portion thereof that is
subject to the offer, may be sold or leased to the offeror on the terms and conditions
of the original offer, free and clear of the right of f~rst refusal. The right of first
refusal shall nevertheless apply to any changes in the original offer. If an offer is
received from a bona f~de purchaser to purchase or lease some portion of the Herrick
Ditch Rights less than the entire 4.0 cfs that is subject to this Right of First Refusal,
any remaining portion of the 4.0 cfs of the Herrick Ditch Rights that was not subject
to such offer will continue to be subject to this Right of First Refusal. T Lazy Seven
and Mr. Deane agree that during the term of this right of first refusal, they will use
best efforts to continue the historic use of the Herrick Ditch Rights, and take such
other actions as are reasonably necessary to protect the Herrick Ditch Rights from
loss, diminution in value, and abandonment. The Herfick Ditch Rights that are
subject to the right of first refusal herein granted to the City do not include any water
2
FINAL 06/05/05 rev 1:55 p.m.
decreed to the Herrick Ditch Priority No. 440 ½ that was changed to augmentation
and other uses in Case No. 02CW49, Water Division No. 5, State of Colorado.
4. Future Power Sales. The City of Aspen agrees to provide power for residential and
commercial uses on certain real property described on Exhibit B hereto (the "Deane
Property") at the wholesale rate paid by the City of Aspen, plus $.008 per kilowatt
hour for wheeling charges, or $.04 per kilowatt hour, whichever is higher. This
agreement shall be a covenant running with the land described on Exhibit B. The
wholesale rate shall be defined as the wholesale average rate paid by the City of
Aspen for the preceding year of power cost which shall be calculated annually on the
anniversary date of this Agreement and then applied to the succeeding year cost as the
"wholesale rate" per this Agreement. The parties shall use good faith at all times in
defining and calculating the wholesale rate, recognizing that furore circumstances may
warrant further refinement in the method of calculating the wholesale rate. In
addition, the City of Aspen will trade with Mr. Deane up to 400,000 kilowatt hours
per year of potential usage from the Maroon Creek Plant for an equivalent usage of
power from the hydro-electric power generating plant the City of Aspen intends to
build on Castle Creek and/or some other location determined by the City of Aspen.
5. Connection to City Grid. The City of Aspen agrees to and commits to connecting the
Deane Property with the City of Aspen's power grid in order to provide power to the Deane
Property. In doing so, the City of Aspen will provide and be responsible for the cost of the
conduit, line, and two transformers. The City of Aspen's cost contribution for said materials will
be limited to $25,000. The easement, and the line and transmission facilities constructed therein
will be assigned to the City of Aspen upon completion of installation, and the City shall then own
and maintain the line and transmission facilities. The City of Aspen will not be responsible for
the cost of excavation.
6. Payments Pending Connection of the Deane Property. Pending the connection of the
Deane Property to the City of Aspen grid as described in Section 5 above, the City of Aspen shall
pay to Mr. Dearie in lieu of providing power $10,000 per year (or pro rata portion thereof) for the
years 2005 through the year 2008, for each calendar year (or portion thereof) that the Deane
Property is not connected to the grid, and $25,000 (or pro rata portion thereof) for the year 2009,
if the Deane Property is not connected to the grid any time during the 2009 calendar year. The
due date each year of said payments shall be on the anniversary date of this Agreement. In the
event the City of Aspen cannot provide power to Mr. Deane within two years and six months
from the date the City of Aspen makes the $480,000 Payment or cannot guarantee by contract at
that time that the City of Aspen will provide said power within four years from the date of the
$480,000 Payment, the City of Aspen will then pay to Mr. Deane at the time said determination
is made, cash in the amount of $225,000 as compensation for the future power sales component
of the Lease Agreement, and settlement in full of any claims for future power sales under the
Lease Agreement.
3
FINAL 06/05/05 rev 1:55 p.m.
7. Holy Cross Negotiations. The parties agree that Mr. Deane will be entitled to
participate with the City in future negotiations with Holy Cross with respect to power issues.
However, during the period of time wherein the City of Aspen is paying Mr. Deane
compensation in lieu of providing power to the Deane Property as described in Section 6 above,
Mr. Deane shall not negotiate independently of the City of Aspen with Holy Cross as to
providing power from the Maroon Creek Plant to the Deane Property via Holy Cross
transmission facilities.
8. Confidential Information, The Parties, including the Parties' respective officers,
employees, agents and representatives, recognize that the information provided to the City by Mr.
Deane in connection with the negotiation and preparation of this Agreement is confidential and
proprietary to Mr. Deane, and was provided in confidence by Mr. Deane. The parties agree that
such information (collectively "Confidential Information") will be treated as confidential.
Neither Party shall reveal Confidential Information to any third party (including without
limitation any governmental entity, business, natural person, or media) without the prior written
consent oftbe other Party or unless required by law. The Parties shall take reasonable
precautions and establish reasonable procedures to ensure that no Confidential Information is
stolen, misappropriated or otherwise disclosed in violation of this Agreement.
9. Notices· Any notice or other communication given under this Agreement shall be in
writing an~l shall be delivered by hand, facsimile, electronic mall or pre-paid registered mail to
the addresses listed below (or such other address that a Party may from time to time designate by
written notice to the other Party). Any notice or other written communication delivered by hand,
facsimile or electronic mail shall be deemed to have been given and received on the day it is so
delivered or, if such day is not a business day, then on the next business day following such day.
· · · ' ' ' shall be
Any notice or other written communication that is dehvered by pre-prod registered mini
deemed to have been given and received on the fifth (5t~) business day following the date of
mailing·
If to Wyrick G. Deane or T Lazy Seven Ranch Corp.:
Wyrick G. Deane
3129 Maroon Creek Road
Aspen, Colorado 81611
If to City of Aspen:
John P. Worcester, Esq.
City of Aspen
130 South Galena Street
Aspen, CO 81611
4
FINAL 06/05/05 rev 1:55 p.m.
10. ~tion. With respect to any dispute, controversy or claim arising out of
or relating to this Agreement, or the breach of this Agreement, the Parties shall first attempt in
good faith to resolve the matter through negotiation. If such negotiation is not successful, the
Parties agree first to try in good faith to settle the dispute by mediation administered by the
American Arbitration Association ("AAA") under its Arbitration Rules for the Real Estate
Industry then in effect ("Rules"), with costs to be shared equally between the Parties. If such
mediation is not successful, the matter shall be submitted to and settled by final, binding
arbitration administered by the AAA under the Rules, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Apportionment of costs of the
arbitration shall be determined by the arbitrator. Unless the Parties agree otherwise, any
mediation or arbitration proceedings shall take place in Aspen, Colorado.
11. ~ffect. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective agents, successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any other person any rights, remedies,
obligations, or liabilities.
12. ~ment. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and may not be changed, waived or modified except by the
written agreement signed by both parties hereto specifically stating that such writing is an
amendment to this agreement.
13. Force Majeure. Neither party shall be held liable for failure to perform pursuant to this
Agreement due to wars, strikes, acts of God, drought, damage to equipment, or other unnatural and
natural disasters, not within the control of the party.
14. Severabili~. If any one or more of the provisions of this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, all of the remaining provisions shall as
far as possible remain in full force and effect.
15. Governing Law. This Agreement shall be governed by the laws of the State of Colorado,
without reference to the Colorado law applicable to conflicts of law.
1N WITNESS WHEREOF, Wyrick G. Deane, T Lazy Seven Ranch Corp. and the City of
Aspen have caused this Agreement to be executed as of the date first set forth above.
Wyrick G. Deane
Wyri~k G. beane
FINAL 06/05/05 rev 1:55 p.m.
T Lazy Seven Ranch Corp.
By: /~Vyric~ ~. Deane
President
,.]un OIS 05 05:37p ,.]ack Kau'Fman B'70 9~5 '740! P-~'
Our Order No. Q381742
LEGAL DESCRIPTION
PARCEL B:
TI-liE WI/2OF THE NWl/4 OF SECTION 22; THE SEll4 OF ~ NEll4; THE SEll4 OF SECTION
21, ALL IN TOWNSHIP 10 SOUTH, RANGE 85 WEST OP THE 6TH PRINCIPAL
ExCF_.PTING FROM TI-lIE ABOVI/PARCEL THE POLLOWING: 1973 IN BOOK 277 AT PAGE
A pARCEL DESCRIBED IN WARRANTY D~.I:D Pt/CORDED 3UNE 21,
115
A PORTION DESCRIBED IN DE~_,D RECORDED MAY 4, 1962 IN BOOK 197 AT PAGE 376
A PARCEL DESCRIBED IN DEEDS RECORDED MAY 26, 1954 IN BOOK 172 AT PAGE 319 AND 1N
BOOK 181 AT PAGE 87
A PARCEL DESCRIBED IN DEED RECORDED/UNE 15, 1950 IN BOOK 172 AT PAGE 150 AND
RECORDED 3ULY 14, 1951 IN BOOK 172 AT PAGE 187
A PARCEL DESCRIBED IN QUIT CLAIM DEED RECORDED APRIL 5, 1984 IN BOOK 464 AT PAGE
226
ALSO EXCEPTING THEREFROM MAROON CR.5.~[ ROAD
COUNTY OF PITKIN, STAT~ OF COLORADO
Dun 06 05 OS:3?p Jack KauFman 970 925 7401 p.3
LEGAL DESCRIPTION
Our Order No. Q381743
PARCEL C:
A TRACT OF LAND ~TUAT~D I~ THE SOUTHWEST 1/4 AiWD THE SOUTHF-,AST 1/4 OF THE
NORTHEAST"114 OF SECTION 21; AND TI-I~ WEST 1/2 OF TI-iE NORTHWEST 1/4 OF SECTION
22; TOWNSHIP 10 SOUTH, RANGE g5 WEST OF THE 6TH PRINCIPAL lVfERIDIAN; MORE FULLY
DESCRIBED AS FOLLOW:
BEGINNING AT A POINT ON THE SOUTI-IY~RLY EDGE OF A 30 FOOT ROAD ~ASEMENT, BEING
ALSO A POINT ON TH~ WESTERLY LINE OF THAT TRACT OF LAND DESCRIBED IN BOOK 277
AT PAGE 177 IN THE HECORDS OF THE PITKIN COUNTY CI ~RK AND RECORDER~ WHENCE THE
NORTH 1/4 CORINJmF, O1~ S~CTION 22 BEARS N54 DEGREES 39'15" B 2263.65 FEET
THENCE S $1 DEGREES 43'17" W 100.53 F~ET;
THENCE 59.74 FEET ALONG A CURVE TO THELEFT HAVING A RADIUS OF 261.52
FEET;
THENCE S 68 DEGREES 38' W 54,33 FEET;
THENCE 19.37 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 41.41
FEET;
THENCE 19.55 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 58.96
FEET;
THENCE S 22 DEGREES 50' W 73.82 FEET;
THE 39.83 FEET ALONG A CIfRVE TO THE LEFT HAVING A RADIUS OF 176.45 FEET;
TH~ENCE S 09 DEGP~ES 54' W 14.37 FEET;
THENCE 39.97 FEET ALONG A CURVE TO THE RIGHT HAVING A KADIUS OF 412.62
FEET;
THENCE S 14 DEGREES 27' W 6.53 FEET;
THENCE 39.81 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 166.90
FEET:
THENCE S 28 DEGREES 07' W 14.50;
THENCE 39.64 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 121.8
FEET;
THENCE S 46 DEGI~ ~F-$ 46'W 63.43 FF-,ET;
THENCE 19.99 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 2~0.26
FEET;
TI-IL~tCE $ 42 DEGK]~S OO' W 28.02 FEET;
THENCE 19.98 F~-r ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 200.29
FEET;
THENCE S 36 DEGREES 17' W 94.87;
THENCE 59.75 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 270.29
FEET;
THENCE S 48 DEGREES 57'W 121.56;
THENCE 39.38 FEET ALONG A CURVE TO THE LP-P~i' HAVING A RADIUS OF 91.60
FEET; OF 93.33
THENCE 31.30 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS
FF-ET; -
THENCE 15.14 ~EET ALONG A CURVE TO TH]~ RIGHT HAVING A RADIUS OF 117.75
i~ET;
THENCE S 12 DEGREES 28' W 22.8 FEET;
THENCE 39.93 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 273.98
FEET;
THENCE S 20 DEGREES 49' W 49.43 FEET;
.]un 06 05 05:38p .]ack, Kauf'man -g';'O 925 ?~0! p.4
LEGAL DESCRIPTION
Our Order No. Q381'743
TH]~ICE 59.68 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 235
FEET;
THENCE S 35 DEGREF-~ 20' W 26.98 FEET;
THNNC~ 37.14 FEET ALONG A CURVE TO THE RIGHT HAVING A I~ADIUS OF 106.48
THE 37.16 PEET ALONG A CUP. VE TO THE LEFT HAVING A RADIUS OP 108.80 FEET;
· THENCE S 35 DEGP. EHS 45' W 121.38 FI~T;
TKNNCE 59.85 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 349.93
FEET;
THENCE $ 25 DEGREES 57' W 90.79 FEET;
THENCE 59.88 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 380.47
FF~ET;
TI-I~NCE S 34 DEGR]/~F~ 58' W 41.46 FEET;
TI-~ENCE 39.83 FEET ALONG A CURVE TO THE ! .~T HAVING A RADIUS OF 179.00
FEET;
THENCE S 22 DEGREES 13' W 22.65 FEET;
THENCE 39.73 FEET ALONG A CURVE TO THE LEFT HAVING A P, ADIU$ OF 138.93
FEET;
THENCE S 06 DEGP, EE~ 50' W 14.52 FEET;
THENCI5 29.96 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 224.36
FEET;
THENCE S 00 DEGREE~ 49' E 12.47 FEET;
THENCE 39.01 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 248,13
FEET;
THENCE $ 08 DEGREES 24' W 72.01 FEET;
THENCE S 52 DEGREES 00' E 132.00 PEET TO A POINT ON TI-~ NORTHERLY EDGE OF MAROON
CREEK ROAD;
THENCE ALONG SAID ROAD S 56 DEGRI~S 28' W 80.00 FEET;
THENCE N 36 DEGREES 56 ' W 12.32 FEET;
THENCE N 73 DEGP, EF~ 34'41, W 223.77 FEET;
THENCE N 66 DEGREES 29'05" W 256.75 FEET;
TI--~NCE N 43 DEGREES 50'15" E 288.36 FEET;
THENCE N 15 DEGP, F~ES 39'41" W 133.24 FEET;
TJri~NCE $ '77 DEGREES 34'02" W 195.00 PEET;
TH~:NCE S 59 DEGREES 37'07" W 234,$0 PEET;
THENCE N 61 DEG1EEES 01'32" W 331.50 FEET;
~ NORTH 486.00 FEET;
TI-IENCE N 66 DEGI~h-I:~ 30'2~" E 1374.50 FI~T;
TIlE NORTH 666.00 FEET;
THENCE EAST 696.61 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THAT TRACT OF
LAND DESCRIBED IN BOOK 217 AT PAGE 162 PITKIN COUNTY RECORDS;
TI-IENCE ALONG SAID LINE S 26 DEGP,~r~ 12' W 176.82 FEET TO TH~ x,VE~T CORNER OF SAID
TRAC~;
THENCE S 11 DEGREES 22'59" E 429.75 FEET ALONG THE WF--~~Y LINE OF SAID TRACT
RECORDED IN BOOK 2'~? AT PAGE 177. TO THE POINT OF BEGIIql~2NG. AI.~O KNOW AS
PARCEL 1, T J.,AZY 7 RANCH SUBDIVISION, ACCORDING TO THE PLAT RECORDED A~RIL 7,
1982 IN PI.AT BOOK 13 AT PAGE 24.
ALL IN THE COUNTY OF PITKIN
STATI~ OF COLORADO
· wa u~s '~;eu 'so&L
A~VQHI~08 A 'I'd31S3H~
/
/
/
/
/