Loading...
HomeMy WebLinkAboutordinance.council.004-01 ORDINANCE NO. 4 Series of 2001 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE EXTRATERRITORAL WATER SERVICE AGREEMENT WITH. JACK GUENTHER TRUSTEE UNDER THE WILL OF CHARLES F URSHEL JR. FOR PROVISION OF TREATED WATER SERVICE TO SERVE THE URSCHEL TRACT D SUBDIVISION PUD. WHEREAS, Jack Guenther, Trustee under the Will of Charles F1 Urschel Jr., (the applicant) has applied for extension extraterritorial water service t fr?m the city to serve the urschel Tract "D" Subdivision P.O.D. which comprises five single family residences, each with a caretaker unit final plat of which of was approved by Pitkin County by Resolution No. 147-20000 and recorded at Reception No. 446364 on August 24, 20000; and WHEREAS, the property to be served is located in Pitldn County, and not within the City limits of the City of Aspen, and WHEREAS, Section 25.12.020 of the Aspen Municipal Code provides that any extension of City water service outside the corporate limits of the City of Aspen shall be made pursuant to an agreement with the City and in accordance with the City of Aspen water main extension policy and, further, that the City may grant water service only upon a determination that no conflict exists between the best interests of the City and the prospective water use, and that the City may impose such contract, water rights dedication and bond requirements as it deems necessary to safeguard the best interests of the City; and WHEREAS, the City Council has adopted by Resolution No. 5, Series of 1993, as amended, policies to guide municipal water system development and services beyond the City limits; and WHEREAS, said policies require the City Council to make a determination that the proposed water service extension complies with said policies and is in the best interests of the City of Aspen; and , I Illlll IIIII IIIIII IIllll fill IIIII IIIIII III IIIII Illl IIII ' 452881 83185/2881 81:48P ORDINI:INC DI:IVIS $1LVI 1 oF 38 R 158.88 D 8.88 N 8.88 PZTKTN COUNTY CO WHEREAS, the City Council has had an oppommity to review with City staff the proposed extension of water service to Applicant's property, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT Section 1. The City Council of the City of Aspen hereby determines that the proposed provision of City water service to the Urschel Tract "D" Subdivision P.U.D. outside the City limits of the City of Aspen, is in the best interests of the City and substantially complies with the City of Aspen water policy for extraterritorial services, as set forth in Resolution No. 5, Series of 1993, as amended, and therefore agrees to extend City water service to the Urschel Tract "D" Subdivision P.U.D. on the terms and conditions set forth in water service agreement attached hereto as Exhibit A and incorporated herein by reference, which water service agreement shall control provision of water to the Urschel Tract "D" Subdivision PUD notwithstanding any later annexation into the City of Aspen. Section 2. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional ir/a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4. A public hearing on the ordinance shall be held on the 12a~ day of February 2001, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIII IIII IIII 452081 03/05/2001 01:40P ONDXNANC DI:IYX$ $XLVX 2 oF 30 N 150.00 D 0.00 N 0.00 PXTKXN COUNTY CO Council of the City of Aspen on the 22nd day of January 2001, xx .-~ ..... ,'~. ~., ~t;i~ . Ra el Richards, Mayor ~';:''i~: "~:""~i< ~!~'I:!' ' Raffl ~or o~-~.~ s. ~&, city C~erk FINALL~ adopted and ordered publis~he~this 12~ day of Febmarw200 xq ~? 4 G.~ '.~ ~¢?" R[chel Richards, Mayor Bill IIIIII IIIIII lib IIIII IIIIII III IIIII IIII IIII ~,$~'05'1 05/05/~'0~ 01;~,01~ I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII ill IIIII IIII IIII 452081 03/05/2001 01:40P ORDINANC DAVIS $ILVX 4 of 30 R 150.00 D 0.00 N 0.00 PZTKIN COUNTY CO CITY OF ASPEN WATER SERVICE AGREEMENT (New Development) This Water Service Agreement is entered into this 12-44`- day of~. 2001, in Aspen, Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation ~ home rule city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Jack Guenther, Trustee Under the Will of Charles F. Urschel, Jr., whose address is 153 Treeline Park, Suite 300, San Antonio, TX, 78209 (hereafter "Developer"). WITNESSETH WHEREAS, the City owns and operates the City of Aspen water system in accordance with the laws of the State of Colorado, and in accordance with the charter, ordinances, rules, regulations, policies and resolutions of the City of Aspen, and this Agreement is entered into in conformity with, and subject to, all such laws, charter, ordinances, rules, regulations, policies and resolutions; and WHEREAS, Developer is the owner of certain real property comprising approximately 20 acres situated in Pitkin County, Colorado, known as the Urschel Tract "D" Subdivision P.U.D., as more particniarly described as That part of the SW 1/4 NW 1/4 of Section 14, Township 10 South., Range 85 West of the 6th P.M. lying northerly and westerly of the northwesterly bank of Maroon Creek, in Pitkin County, Colorado referred to in this Agreement as the "Subject Property"; and WHEREAS, Developer seeks to construct on the Subject Property five single-family residences, each with a caretaker unit (referred to herein as the "Project"); and WHEREAS, Developer seeks to obtain municipal water service from the City for the Project on the Subject Property; and WHEREAS, the Subject Property is located outside the corporate limits of the City; and WHEREAS, the Board of County Commissioners of Pitkin County approved, by Ordinance No. 94-24 and Resolution No. 94-128, the rezoning, subdivision, and general submission for the Urschel Tract D; and WHEREAS, detailed submission and final plat approval for Project have been granted by the Board of County Commissioners for Pitkin County by Resolution No.147-2000 Pitkin County Water Service Agreement (new developmen0 12/97 (revised 06/98) FINAL 02-19-01 I IIIIII IIIII IIIIII IIIIII !111 IIIII IIIIII III IIIII IIII IIII 452081 03/0512001, 01.40P ORDINI:INC D;IVI$ $]'L¥! 5 of 30 R 158,08 D 0.00 N 0.00 Pt'TKIN COUNTY CO Records, and a copy of said final approval was recorded at Reception No. 446364, on August 24, 2000 with the Pitkin County Recorder; 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 Municipal Code of the City of Aspen, Colorado (the "Code"), requires that the extension of water service outside the boundaries of the City shall be made only pursuant to a written agreement with the City, that the City shall not be obligated to extend such service, and may provide such service only upon a determination that it is in the best interests of the City, and that the City may impose such requirements by agreement as it deems necessary or appropriate to protect its best interests; and WHEREAS, the City's Water Service Extension Policy permits water service extension only upon demonstration that such extension will meet the policy goals and requirements of Resolution No. 5 (Series of 1993) as amended, [codified at Section 25.12.020(b) of the Aspen Municipal Code as the same may be further amended from time to time], including the requirement that the City must recover its costs associated with providing such extraterritorial service, and make a profit; which the City acknowledges are met by this Agreement; and WHEREAS, the City has determined that this Agreement and all covenants herein are necessary to comply with the Code and the City's water policies, and will allow the City to recover its costs associated with such extraterritorial service, and make a profit; and WHEREAS, the City is not hereby representing that it is a regulated public utility, or holding itself out to the public in general as capable of or intending to provide water service extraterritorially; and WHEREAS, the Code provides for the rating of new or expanded water service based on potential water demand as expressed in equivalent capacity units (hereafter "ECU"); and WHEREAS, the City desires to encourage the use of raw water supplies for certain outdoor irrigation where practical, feasible and safe 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 Subject Property; and WHEREAS, Developer has submitted its Application for Water Service Extension (the "Application") and has paid all fees required in connection with the Application. The Application, and all attachments, addenda and exhibits thereto have been relied upon by the City in author/zing this Agreement; and WHEREAS, the City has approved the Application, and is willing to provide water service to Developer on the terms and conditions of this Agreement. Water Service ,~grecment (new development) 12/97 (revised 06/98) FINAL 02-19-01 2 I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIII IIII IIII 45208'1 03/05/200! 01:40P ORDINANC DAVIS S'rLV! 6 or* 30 R ~.50.00 D 0.00 N 0.00 PITK~N COUNTY CO THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and Developer agree as follows: PURPOSE OF AGREEMENT 1. Water Service to Project and Subject Property. The City hereby agrees with Developer to provide treated water service to the Project and the Subject Property 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 Pitkin County under the approvals granted to Developer as recorded at Reception No. 375794 at Book 765, page 602 on October 26, 1994. Developer understands that the City will be the sole provider of raw water (if raw water is used on the Subject Property) and treated water to the Project and the Subject Property. Pursuant to this Agreement, the City shall provide treated water service adequate to meet the approved demands and uses of the Project and the Subject Property, provided, however, that the City shall not be required to supply water to serve more than 25.0 ECUs, and further provided, that the maximum volume of treated water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed 10.08 acre-feet per year. Only those structures and uses approved by Pitkin County for the Project and the Subject Property may be served under this Agreement. 2. Limitation of Time to Provide Service. The City's obligation to provide water service to the Project and the Subject Property pursuant to this Agreement shall terminate if Developer has not completed construction of the water transmission and distribution mains, lines, and related facilities described on Exhibit Cwithin two years of annexation, or December 31, 2005, whichever shall first occur, unless completion of construction is delayed by force majeure as defined in paragraph 30 below, in which case the deadline shall be extended by the same number of days as the force majeure delay that prevented completion of construction. CONSTRUCTION BY DEVELOPER 3. Mains, Lines and Facilities. Developer will design and construct the water transmission and distribution mains, associated facilities and internal distribution lines for the Project in accordance with and subject to the City's design, materials and construction specifications and approval, at Developer's own expense; provided, however, that to the extent the City desires any mains, lines or facilities with capacities larger than necessary to meet the needs of the Project, the City will be responsible for the incremental cost of such enlarged or additional mains or facilities. "Incremental costs" shall be defined as the difference between the total cost ora particular facility designed and constructed solely to meet the needs of the Project and the total cost of such facility as enlarged at the City's request. The parties acknowledge and agree that the water main to be constructed pursuant to this Agreement will be a dead-end line because it is an extension of an existing dead-end line, and geographic constraints do not permit a looped system, although the City typically requires that water main extensions be made in a manner that will allow connection with another of the City's treated water mains to create a looped system. Nor are facilities for storage of water on the Subject Property required pursuant to this Agreement. Water Service Agreement (new development) I2/97 (revtsed 06/98) FINAL 02-19-01 3 I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIII IIII IIII 452081 03/05/2001 01:40P ORD'rNI:INC DI:IV*r$ SI'LV'r 7 oF 30 R 150,00 D 0.00 N 0.00 PTTKTN COUNTY CO 4. Preconstmction Exhibits. The following exhibits concerning the Project have been prepared by Developer. Developer acknowledges that City has not approved the final design drawings for the project, and that final design drawings must be approved in writing by the City Water Department before construction may be undertaken.: ExhibitA: Description of existing facilities, if any, that will be incorporated into the water system infrastructure for the Project. Exhibit t3: General description of New Facilities Exhibit C: Detailed description of new facilities, including a. Reduced-size copies of the proposed final plans for the water mains, lines, and facilities to be constructed pursuant to this Agreement, which are subject to approval by the City. b. Proposed schedule for completion of the Project water mains, lines and associated facilities to be constructed pursuant to this Agreement, subject to approval by the City. Exhibit ~. a. Estimated gross water requirement (gpd) and water flow requirements for the Project for in-building use at full development, and estimated treated water irrigation requirements, including number of square feet to be irrigated with treated water. b. Fireflow provisions, including location, size and description of fireflow storage to serve the Subject Property. c. Description of general location of easements to be conveyed to the City. 5. Final Plans. The City has not approved the final plans and specifications for the water mains, lines and facilities to serve the Subject Property, and Developer acknowledges that final plans and specifications must be approved in writing by the City prior to commencement of construction. After the final plans and specifications are approved, no substantial changes shall be made to the approved final plans and specifications without the City's prior written approval. Developer shall contact the City Water Department at least ten (10) working days prior to commencement of construction to arrange a preconstruction meeting between representatives of the Water Department, the Water Department's inspector, and Developer's engineer and contractor to review the final plans and any minor modifications thereto, to discuss construction scheduling, arrangements for the advance deposit of the City's construction inspection fees, and any other matters that the parties deem necessary. Developer's registered professional project engineer shall inspect and certify the design and installation of all water system mains, lines and facilities to be constructed pursuant to this Agreement. Water Service Agreement (ne.; developmenO 12/97 (revised 06/98) FINAL 02q9-01 4 452081. 03/05/2001. OX :40P in the amount o f 100% of the water system construction costs (including those incremental costs, if any, for enlarged or additional facilities requested by the City as provided in paragraph 3, the portion of the bonding attributable to such incremental costs to be reimbursed by the City). Such bonds shall be in a form acceptable to the City Attorney and shall ensure completion of and payment for the construction, and hold the City harmless for payment to the contractor or any subcontractors, materialmen, or others involved in the construction of the water transmission and distribution mains, interconnecting mains (loop system), lines and associated facilities, or for the provision of materials therefor. Developer shall obtain and assign to the City all warranties from materialmen and suppliers warranting the water system improvements constructed by Developer free and clear of defects for a period of two (2) years from the date of completion construction. In addition, Developer shall obtain and assign to the City (in form approved by the City Attomey) a maintenance or warranty bond equal to one hundred percent (100%) of the water service system construction costs (including those incremental costs for enlarged or additional facilities to be borne by the City, the portion of bonding attributable to such incremental costs to be reimbursed by the City), ensuring the proper condition and operation of such water service system for a period of two (2) years from the date of acceptance of the system by the City. The parties acknowledge that the foregoing obligations shall be provided to the extent that they are not duplicative, in the reasonable opinion of the City Attorney, of the security required under any Subdivision Improvements Agreement approved by Pitkin County. 7. Payment in Lieu of Water Rights. The City acknowledges receipt of 0.1 c.f.s. conditional, of the Stapleton Brothers Ditch Enlargement and Water Right, decreed in Civil Action No. 5884, Garfield County District Court on November 5, 1971, for domestic, municipal and recreational purposes. In additional, Developer shall, upon execution of this Agreement, convey to the City all existing wells located on the Subject Property, along with the well permits and water rights pertaining thereto. Such conveyance shall be a prerequisite to provision of water service hereunder. 8. Construction. Upon completion of the prerequisites described in paragraphs 3 through 7 above, Developer shall proceed with due diligence to construct the water transmission and distri- bution mains, lines and associated facilities in accordance with the plans and specifications and the construction schedule. No construction shall occur between November 1 and April 1 without written permission of the City's Water Department. An automated meter reading system shall be installed for all new customers who will be served by the Project. "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 Developer wish to pretap the distribution lines, a Pretapping Agreement will be required by the City. 9. Fees. Developer shall timely pay all fees imposed by the City in connection with reviewing and approving this Agreement, the design drawings and construction plans, as well as construction inspection fees. An advance deposit for construction inspection fees shall be required at the preconstruction meeting described in paragraph 5 above. Developer shall also be responsible for timely acquiring and paying for all permits and permit fees from entities other than the City (such Water Service Agreement (new developmen0 12/97 (revised 06/98) FINAL 02-19-01 5 452081. 03/05/2001 ;)I.:40P ORD~NRNC DI;IVTS SZLV! g of 30 R 158 08 D 0.00 N 0.~0 PITKZN COUNTY CO as Pitkin County and/or other regulatory agencies) necessary for construction of the mains, lines and associated facilities. 10. Inspection of Construction. Construction must be inspected by the City's engineers or other designated personnel prior to burial or final installation. Developer shall give the City Water Department reasonable advance notice when the mains, lines and/or associated facilities are ready for burial or installation, and the City's engineer or agent shall inspect said mains, lines and/or associated facilities within two working days of such notice. Developer shall timely pay all construction inspection fees. I 1. Easements. Developer shall obtain at its own cost and convey in perpetuity to the City as-built non-exclusive easements for water mains, lines, and other water facilities constructed pursuant to this Agreement, along with all necessary access easements for maintenance and repair purposes ("easements"). All easements on, over or through property located outside of public rights- of-way shall be surveyed at the Developer's cost. The water main and water line easements must be large enough to provide the City with at least ten (10) feet on either side of water mains and lines and must specify that (1) sewer lines must be located at least ten (10) feet from any water main or line, and (2) other utilities must be located at least five (5) feet away from any water main or line. Access easements and easements for other facilities shall be of a size determined by the City to be reasonably necessary for the operation, maintenance and repair of 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 occumng on or resulting from its use or occupation of any easement premises. Nothing contained herein, however, shall constitute or result in any waiver or diminishment of any defense or limitation available to the City under the Colorado Governmental Immunity Act or other applicable law. 12. Testing - Conveyance; As-Built Drawings. Upon completion of construction and before acceptance of the system or any water is delivered pursuant to this Agreement, all distribution and transmission mains and all associated water lines and facilities shall be tested. Upon approval by the City of the test results and deliver to the City of the required maintenance and warranty bonds, surveyed as-built drawings and all required easements, the City shall accept the water system infrastructure for the Project, and it shall be conveyed (excluding individual service lines) with all necessary non-exclusive easements to the City, free and clear of all liens and encumbrances, by deed in form reasonably acceptable to the City Attorney. Performance and payment bonds provided by Developer pursuant to paragraph 6 above shall be adjusted to reflect the final actual construction costs. The maintenance or warranty bond required by paragraph 6 above must be in place and must reflect the actual construction costs prior to the City's acceptance of any main, line or facility. As- built drawings of the Project, including the water system and all other utilities, shall be provided to the City on reproducible sepias with a maximum size of 24" x 36", and on an "auto cad disk data transfer file" tied into one (1) set of state plane coordinates. WATER SERVICE 13. Treated Water Service. Upon completion of construction and acceptance of the water distribution and transmission mains and lines, the associated facilities and easements by the City, Water Service Agreement (new developmenO 12/97 (revised 06/98) FINAL 02-19-01 6 I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIII III IIII 452081 03/05/2001 01:40P ORDXNANC DI~VX$ SXL.VX t0 of' 30 R 1,50.00 D 0.00 N 0,00 PXTKXN COUNTY CO the City will provide treated water service to the Subject Property to no more than the total number of ECUs provided for by the approved final design drawings. Any change in the treated water service requirements for the Subject Property wilt 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. Developer agrees to adopt, in a form reasonably acceptable to the City Attorney, covenants which restrict the use of treated water delivered hereunder by single family units to no more than 10,000 square feet per lot in the five-lot subdivision, by drip or sprinkler irrigation means. Notwithstanding the foregoing, all water use ~vill be consistent with the City's Water Policy Resolution (Resolution No. 5, as amended, (Series of 1993)), and water conservation ordinances. 14. Raw Water Service. The City may, at its election, provide raw water for irrigation purposes on the Subject Property to the extent it is willing and able to do so using its existing ditch system. Developer understands and agrees that the City shall be the sole provider ofraw or treated water for irrigation pursuant to this Agreement, and that unless this Agreement is amended, neither Developer nor any owner or user of the Subject Property will develop or utilize independent raw water systems and/or water rights or wells within the Subject Property. 15. Tap Fees and System Development Charges - Computation and Payment: Scheduling. of Taps. All tap fees for treated water service herein provided shall be assessed utilizing the City's prevailing applicable tap fee at the time of application for a building 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 Developer, the City Water Department shall determine scheduling of all physical taps or connections to the main lines. Developer shall also pay to the City a well system development charge in the amount of $400 per ECU. The total well system development charge for the entire Project on the Subject Property must be paid in full before any delivery of water will be made to the Project by the City. 16. Service Lines. Each service line shall be metered in accordance with the Code at the sole expense of Developer and cross-connection and backflow prevention devices will be installed at the water user's expense. 17. Limitations on Provision of Water Service. This Agreement is only for the supply of treated water service as herein described and no expansion of uses, connections, or water service beyond those set forth herein and in the Addenda and Exhibits hereto is in any way authorized by this Agreement. The City is not by this Agreement prejudging, certifying or guaranteeing its ability to provide treated water service to any use or structure except as provided herein, nor may this Agreement be used as evidence of approval of any land use requests, or as evidence of approval of water service for any land use request, except as provided herein. Water Service Agreement (new development) 12/97 (revised 06/98) FINAL 02-19-01 7 I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIII III IIII 452081 03/05/2001 01:40P ORDXNANC DAVX$ $XLVX 11 of 30 R 150.00 D'0.00 N 0.00 PXTKXN COUNTY CO 18. Service Subject to the City Charter, Codes, Rules, Regulations and Policies. 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, as well as all applicable roles, policies or regulations of the City now in effect or as may be hereafter adopted, including but not limited to those provisions of the Code applicable to City residents as set forth in Chapter 8.40 and Chapter 25. 19. Rules Regarding Water Use. Developer agrees to adopt all provisions set forth herein as rules and regulations governing the use of water on the Subject Property and for the Project, and agrees that this Agreement and the Addenda and Exhibits hereto shall be recorded as covenants running with the land and shall be as fully enforceable on the Subject Property as if the same were situated inside the City. Until sale of the last lot sold within the Project, Developer 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. Thereafter, the foregoing obligations shall be assumed by the owners of the Subject Property and the homeowners association or other organization established for the purpose of assuring compliance with this Agreement. Developer also agrees to prohibit all unnecessary or unreasonable waste of water on the property served by this Agreement, and to make reasonable efforts to enforce such prohibition. The unreasonable or unnecessary waste of water shall be defined as set forth in the Code. 20. 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. 21. No Guaranty of Water Quality, Quantity or Pressure. The City makes no promise or guarantee of pressure, quantity or quality o fwater supply for any purpose, including fire suppression, except as specificallyprovided herein or as is required by applicable federal, state and local laws and regulations. The City agrees to treat its water to meet all mandatory local, state and federal potable water standards and to exercise reasonable care and foresight in furnishing water hereundm' equal in quality to that furnished inside the City. 22. Property Rights in Water. All water furnished under this Agreement is provided on a contractual basis for use on the Subject Property as described in this Agreement, and all property rights to the water to be furnished from the City hereunder are reserved to the City. Water service provided under this Agreement does not include any right to make a succession of uses of such water, and upon completion of the primary use of the water on the Subject Property, all dominion over the water provided reverts completely to the City. Subject to the prohibition against waste and any other limitations on water use imposed in this Agreement, Developer shall have no obligation to create any particular volume of return flow from the water furnished under this Agreement. Developer 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. Water $~rvice Agreement (new dev¢lopm~0 12/97 (revised 06/98) FINAL 02-19-01 8 i illin II111111111 IIIIIIlllllllllllllll IIIIIIIIIIII 12 of 3;) R 15;).;);) D ;).;);) N ;).;);) PZTKIN COUNTY CO 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 o£water provided hereunder. Additionally, in the event that Developer or any user who has purchased or leased a portion of the Project or the Subject Property violates the rules, policies, regulations or ordinances of the City, the City shall have all remedies available to it at law or in equity, or as provided in the Code. In addition, the Developer shall record covenants running with the Subject Property, in foru~ acceptable to the City Attorney, which authorize the City to enforce the treated water irrigation limitations set forth in paragraph 13. Without limiting the foregoing rights and remedies, the parties agree that this Agreement may also be enforced by injunction, the parties agreeing that the damages to either party from such violations are irreparable, and there is no adequate remedy at law for such violations. The City shall be free from any liability arising out of the exercise o£its rights under this paragraph. Notwithstanding the foregoing provisions of this paragraph 23, if an individual owner or lessee within the Subject Property (other than Developer) commits a violation with regard to water delivered to his owned or leased property, only that individual owner% 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 A~yeement. Except as provided to the contrary herein, this Agreement shall only be terminated in writing by mutual agreement and the term o£this Agreement shall continue until such termination. 25. Termination if Illegal. The parties agree, intend and understand that the obligations imposed by this Agreement are conditioned upon being consistent with state and federal laws and the Code. The parties further agree that if any provision of this Agreement becomes in its performance inconsistent with the Code or state or federal laws, or is declared invalid, the parties shall in good faith negotiate to modify this Agreement so as to make it consistent with the Code or state or federal laws as appropriate, and if, after a reasonable amount of time, their negotiations are unsuccessful, this Agreement shall terminate. The City agrees that its contractual obligations hereunder will not be impaired by any amendment to the Code unless such amendment (or impairment) is mandated by state or federal law. ANNEXATION 26. Annexation. Upon the request of the City, at the City's sole discretion, Developer, or its successors in interest, shall petition for and/or consent to the annexation of the Project and the Subject Property, or those portions thereof as deemed appropriate by the City, to the City of Aspen at such time(s) as determined by the City. Such annexation(s) shall not divest or diminish any land use approvals or development rights awarded by Pitkin County for the Project or the Subject Water Service Agreement (new development) 12/97 (revised 06/98) FINAL 02-19-01 9 I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIII III IIII 452081 03/05/2001 81:48P 0RDXNANC DI:IVX$ $XLVX 13 o~ 30 R 150.00 D 0.00 N 0.00 PITKI~N COUNTY CO Property, the Pitkin County approvals (including but not limited to thc floor areas permitted for each house and the calculation method for computing said FA~ memorialized in ?i~in County Ordinance No. 94-24, Resolution No. P4-128, Resolution No. 147-2.000 and the Covenants and Subdivision Improvement Agreement are acknowledged as fully legally vested. Notwithstanding, no provision of this Agreement shall require owners of the Subject Property to comply with any building, engineering or design standard or Code provision, or interpretation thereof, which differs from the standards or variances under which the Project was approved by Pitkin County. Notwithstanding, no provision of this Agreement shall require owners of the Subject Property to comply with any building, engineering or design standard or Code provision, or interpretation thereof, which differs from the standards or variances under which the Project was approved by Pitkin County. In the event that annexation would result in any approval, design criteria or zoning classification which would render the Subject Project, or any portion thereof, non-conforming in nature with the City, the City shall adopt such appropriate zoning, design criteria or other regulations for the Subject Property which would render the Subject Property conforming. Failure of Developer or its successors in interest to commence and complete annexation proceedings as herein required shall constitute a material breach of this Agreement authorizing the City to terminate the same. Alternatively, failure of Developer or its successors in interest to commence and complete annexation as herein required shall authorize the City to commence and/or complete such annexation on their behalf, in which event the City shall charge, and Developer and/or its successors in interest shall pay, all costs and fees associated with such annexation. Notwithstanding annexation of all or any part of the Subject Property, this Agreement will remain in full force and effect. GENERAL PROVISIONS 27. 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. Developer agrees that neither it, nor its successors in interest or assigns shall at any time petition the Colorado Public Utilities Commission to acquire jurisdiction over any water rate set by the City. The parties agree that in the event the City is held to be a regulated public utility by virtue of this Agreement, this Agreement shall terminate and be of no further force or effect. 28. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be deemed a waiver of any such right and shall not affect the right of such party to exercise at some future time said right or any other right it may have hereund~. 29. 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. Notices to the City of Aspen shall be directed to the Water Director, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611. Copies of such notices shall also be sent in the same manner to the City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 8161 I. In addition, a copy of the Notice to the Developer shall be provided to: Kevin L. Patrick, Esq. Water Servtce Agreement (new development) 12/97 (revised 06/98) FINAL 02-19-01 10 I IIIIII IIIII IIIIII IIIIII !111 IIIII II/BI III IIIIII III IIII 4 2eez e3/es/2ee~ ez.4eP OROZN;tNC D~VZS SZLV! of 3e R se.ee D e.ee N e.ee Pt'TKIN COUNTY CO Patrick & Stowell, P.C. 730 East Durant Avenue, Suite 200 Aspen, CO 81611 30. Force Majeure. 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. 31. Severabilit¥. If any provision of this Agreement shall be or become invalid or unenforceable, the remainder of the provisions shall not be affected thereby, and each and every provision shall be enforceable to the fullest extent permitted by law. 32. Amendment; Assigmnent. Neither this Agreement, nor the obligations of Developer or.Deve!oper's right to receive water may be assigned to a subsequent developer without the City's prior written consent. Notwithstanding the foregoing, Developer may, in the course of development of the Subject Property, transfer individual lots to non-developer owners without the City's prior written consent. The City's obligations hereunder may not be assigned without Developer's prior written consent. This Agreement may be amended only in writing, signed by the parties. 33. Entire Agreement. Except as otherwise provided herein, this Agreement, including its Addenda and Exhibits, supersedes and controls all prior written and oral agreements and representations of the parties and is the total integrated agreement among the parties governing the matters provided for herein. 34. Interpretation. Titles and paragraph headings shall not be used to alter the meaning of this Agreement. 35. Binding Agreement - Recording. This Agreement is binding upon the parties hereto, their successors and assigns, and any sale of the Project, the Subject Property, or any portion of either shall be subject to this Agreement as provided herein. This Agreement, including the Addenda and Exhibits hereto, shall be recorded with the Pitkin County Clerk and Recorder at Developer's expense, and shall impose covenants running with the land upon all of the Subject Property. Deeds to subsequent owners shall provide notice of this Agreement and the obligations contained herein. 36. 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. 37. 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. Water Service Agreement (new development) 12/97 (revised 06/98) FINAL 02-19-01 11 Aspen City Attorney DEVELOPER Jack Guenther, Trustee Under the Will of State of TEXAS ) ) ss County of BEXAR to before me this 21st dayof February ,200l, by Trustee Under the Will of Charles F. Urschel, Jr. My commassion expires 9/17/01 /(lotary Public Carol Sue 8ruehler Approved'as to form by Attorney for Developer: PATRICK & STOWELL, P.C. 452081 03/$5/2001 01:40P ORDINAHC DI~VI$ SILVI 12 F~ 02-19-01 I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIII III IIII 45208! 03/05/2001 ~I*:4E)P ORD'rNI:INC DI:IV'r$ $'rLV'r 16 o~ 3~ R 150.0~ D ;).00 N 0.~0 PTTK'rN COUNTY CO 3 8. Counterparts. This Agreement maybe signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. 1N WITNESS WHEREOF, the parties have executed this Agreement the date and year first above written. ~ THE CITY OF ASPEN, COLORADO A Municipal Corporation and ~. Home Rule City :: ~Yayor~_~.f~,~~_..~ AS TO FORM: '~?11/~ /.~.o~ ~-I/z~ I~ / A'~p ~ ~C {fyi'J[ t ~'o r n-ey DEVELOPER Jack Guenther, Trustee Under the Will of Charles F. Urschel, Jr. State of ) ) ss County of ) Subscribed and sworn to before me this day of ,2001, by Jack Guenther, Trustee Under the Will of Charles F. Urschel, Jr. Witness my hand and official seal. My commission expires (SEAL) Notary Public Approved as to form by Attomey for Developer: PATRICK & STOWELL, P.C. By Kevin Li Patrick C:/TEMP/wsafiilal021901AC wpd Water Service Agreement (new development) 12/97 (revised 06/98) FINAL 02-19-01 12 Water Service Extension Outside City Limits EXHIBIT A Description of Existing Facilities: Size of trammission/distribution mains: Length of transmission/distribution mains: Age of transm/ssion/distribution maim or other facilities: ~ Water storage tanks (number and capacity): Ea~le Pines Tank 800 ~000 gal. ~ Hydrants (number): ~Pump stations (number): Tiehack Pump Station ~ Service connections per structure (number): ~ Wells (number and capacity of each): Attachments to Exhibit A must include: NOT APPLICABLE ~Plat of the Project as approved by Pitkin County ~ As-built drawings showing locations of existing maim, lines and facilities ~ Design drawings and specifications of all existing maim, lines and facilities ~ Total existing fixture count per structure (Include treated water irrigation systems and other water amenities, as well as fixtures such as sinks, toilets, dishwashers, etc.) [~ Records of current water usage (Both residential and non-residential) If the existing facilities serving the Project include individual or community wells, the attachments to Exhibit A must also include: ~ Map showing location of all wells ~ Copies of Permits for all wells Request for Consideration (12/97) Date: August B0, 1999 .Ia_O Water Service Extension '="=~' Outside City Limits EXHIBIT B General Description of Proposed New Facilities This is an 851 foot extension of the Aspen Water Main. There is 746 feet of 8" D.Z.P. and 105 feet of 2" D.Z.P. There are two fire hydrants, both off the waterline. Approximate size of transmission/distribution mains: 8" & 2" Approximate length of transmission/distribution mains: Water storage tanks (capacity): ~ Hydrants (number): 2 Pump stations (number): ~ Service connections (number): Fibre Attachments toExhibitB will include: NOT REQUIRED BY AGREEMENT OF THE PARTIES Documents showing Approval of the Project by Pitkin County d:\client files\aspen\aspen.rfc rev 12-97 Request for Consideration (12/97) Date: August 30, 1999 Water Service Extension Outside City Limits EXHIBIT C Detailed Description of New or U~graded Facilities: Proposed commencement of construction: Proposed completion of construction: ~sti~ted cost o~ construction: ~0.4~0 Size of transmission/distribution mains: 8"a Length of transmission/distributionmains: Water storage tanks (number and capacity): N/A Hydrants (number): 2 Pump stations (v-~er): N/A Service connections (n-~er): ~ A~achmen~ to Exh~ff C must include: Detailed Cost Estimates for Proposed Construction Critical Path Sequence Chart for Proposed Construction Water & Sewer will be the first utilities to be constructed aS they are the deepest. Design Drawings of Mains, Lines and All Associated Final Facilities 92076E.lct 1 RT:ig I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIIII II IIII 452081 03/05/2001 0~:40P ORDINANC DAVZ$ SlLV! 21 =¢ 35 R 150.00 D 0.00 N $.05 PITKIN COUNTY CO . -: ~ ., iii ]i ~t .:,: ::I:, i~$; --~ -~'--:'-" =~ i ~l: ~, _ I i~il:~ I IIIIII IIIII IIIIll IIllll Illl IIIII Illlll III IIIIlll II Illl 452581 03/05/2001 01:40P ORDINflNC DflVZ$ SZLV! 23 e~ 30 R 150.00 D 0.00 N 0.00 PZTKZN COUNTY CO I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIIII II IIII 452081 03/05/2001 01:40P ORDtNRNC DRVZ$ $ZLV! 24 o( 3~ R 15~.~ D ~.~ N ~.~ PZTK~N COUNTY CO I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIIII II IIII 452981 93/95/2991. 01:49P ORDXNRNC DRVXS SXLVX 25 o~' 39 R 150.99 D 9.99 N 9.99 PZTKIN COUNTY CO I IIIIII IIIII IIIIII IIIIII IIII IIIII Illlll Ill IIIIIII II IIII ................................... 49208i. 03/05/2~0], BI.:40P ORI)I'Ni:IN¢ ~¥~$ SILV! 26 o¢ 30 R t50.09 D 9.08 N 0.00 PZTKZN COUNTY CO Ii IIIII IIIIll Illlll Illl Illllllllll III IIlllll II Illl ......... · ............................. 452581 53/55/205`1 51:45P ORDXNI~NC DFIVX$ SXLVX 27 o,F 30 R '165.65 D 5.95 N 0.55 PXTKXN COUHTY CO WATER SYSTEM 8" DIP 746 L.F. $ 35.00 $26,110.00 8" 22 ½ Bend- 2 $ 250.00 $ 500.00 Fire Hydrants - 2 $3,000.00 $ 6,000.00 8X2 Tapped Plug- 1 $ 150.00 $ 150.00 2" Curb Stop- 1 $ 125.00 $ 125.00 2" DIP 105 L.F. $ 25.00 $10,525,00 Services 5 $1,200.00 $ 6,000.00 Tie to existing $1,000.O0 $ 1.O00.00 $50,410.00 92076E,letl RT:Ig I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIIIIII II IIII 452581. 03/05/200'1 01:40P ORDZNPlNC DgVl$ $ZLV! 2g of 35 R 150.00 D 0.00 N $.00 PITKIN COUNTY CO Water Service Extension Outside City Limits EXHIBIT D Please attach a description for the entire Project of: , ..... ;: : ', Estimated gross water requirements (gpd) and water flow :requi.~em~rits for in-building purposes in approved structures and uses;.on ~the S, ubject Property at full development, and estimated treated !:w~t~l~iri!g~tion requirements, including number of square feet to be irrigat~ed ~h ~?~ated water. Fireflow provisions, including location, size and descriptiom~ ~,reflow storage to se~e the Subject Property. General location of easements to be conveyed to Aspen. (Water main easements must be at least 20' in width, and water mains must be located at least 10' from other utilities. All easements must be of a size and location acceptable the Aspen Water Department.) Proposed tank easements: ............................. Proposed pump station easements: ..................... Other proposed easements: 20 ft. water line easement &~ =osa =.o.~. Annual treated water demand 2.2 M gal. Average 6,125 gals / day Irrigation 25,000 Sq. Ft. or 1225 gals for subdivision perday Fireflow from Eagle Pine tank 800,000 gal. 92076E.lcd R.T:lg I IIIIII IIIII IIIIII IIIIII IIII IIIII IIIIII III IIII IIIII IIII 452081 03/05/2~01 ~I:4~P ORDXN;INC DAVX$ $XLVX 30 o¢ 30 R t50.00 D 0.~0 N 0,00 PXTKXN COUNTY CO