HomeMy WebLinkAboutordinance.council.010-2022ORDINANCE NO. 10
Series of 2022
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A WATER SERVICE AGREEMENT WITH THE OWNER OF WILLOUGHBY
PONDS SUBDIVISION FOR PROVISION OF TREATED WATER SERVICE OUTSIDE THE
CITY LIMITS.
WHEREAS, Willoughby Ponds Estate Subdivision ("the Subdivision") consists of six lots,
known as Lots 1, 2, 3, 4, 5, and 6, comprising 15.791 acres, situated in Pitkin County, Colorado,
as more particularly described in the most recent plat of the subdivision, recorded with the Pitkin
County Recorder on December 16, 2021, at Reception No. 683528. All six lots are owned by
Willoughby Ponds Trust ("the Trust").
WHEREAS, the Trust submitted a request for Water Service to the City Water Department,
requesting that extraterritorial water service from the City to serve six lots in the Subdivision.
WHEREAS, treated water service has been provided to a single-family residence on Lot 3
since approximately 1993 and Lot 6 since approximately 1997. Lots 1, 2, 4, and 5 are vacant.
WHEREAS, the Trust seeks to obtain additional municipal water service from the City for
the Subdivision, including expanding the existing water service for Lot 6 for purposes of serving
a single-family residence, and to provide options for future water service for residences on Lots 1,
2, 4, and 5 if developed during the terms of the Water Service Agreement, for a total of 15.13
ECUs for all uses within the Subdivision.
WHEREAS, the property to be served is located in Pitkin County, and not within the City
limits of the City of Aspen; and
WHEREAS, Section 25.12.020 of the Aspen Municipal Code provides that any extension
of City water service outside the Corporate limits of the City of Aspen shall be made pursuant to
an agreement with the City and in accordance with the City of Aspen water main extension policy
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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, City staff have determined that the proposed Water Service Agreement will
comply with the requirements of the Municipal Code of the City of Aspen, Colorado (the "Code"),
and the expanded service will comply with the requirements of the City's Water Service Extension
Policy, which permits extension of City water service extraterritorially 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, and referred to here as "Resolution No. 5"); and
WHEREAS, City Council must make a determination that the proposed water service
extension complies with the above policies and is in the best interests of the City of Aspen; and
WHEREAS, the City Council has had an opportunity to review with City staff the proposed
terms and conditions under which the City is willing to extend water service to the Subdivision. ,
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 serve six lots in the Willoughby Ponds Estates Subdivision,
comprising approximately 15.791 acres, situated in Pitkin County, Colorado outside the City limits
of the City of Aspen as set forth in the Water Service Agreement, is in the best interest of the City,
and complies with requirements of the Municipal Code of the City of Aspen, Colorado (the
"Code"), and with the requirements of the City's Water Service Extension Policy and Resolution
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No. 5, series of 1993, and the City Council approves the Water Service Agreement in substantially
the form attached hereto as Exhibit A and incorporated herein by reference. All City officials and
employees are hereby directed to take such actions as are necessary and appropriate to fulfill the
obligations of the City pursuant to the Water Service Agreement. The Mayor, City Manager, City
Clerk and the Water Director are hereby authorized and directed to execute the Water Service
Agreement and any related documents necessary or desirable to effectuate the transactions
provided for in the Water Service Agreement, provided that neither the Water Service Agreement
nor any other documents are authorized for execution until the City Attorney has approved the
form thereof.
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 in a court of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
Section 4. A public hearing on the ordinance shall be held on the 131h day of September
2022, in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
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INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the 23rd day of August 2022.
�� . wom r2j,
Attest:
R
r
City Clerk
FINALLY ADOPTED, PASSED AND APPROVED THIS DAY OF
2022.
7PWE�
Mayor
Attest:
City Clerk
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CORRECTED ORDINANCE NO. 10
Series of 2022
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
O APPROVING A WATER SERVICE AGREEMENT WITH THE OWNER OF WILLOUGHBY
PONDS SUBDIVISION FOR PROVISION OF TREATED WATER SERVICE OUTSIDE THE
CT, CITY LIMITS.
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WHEREAS, Willoughby Ponds Estate Subdivision ("the Subdivision") consists of six lots,
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known as Lots 1, 2, 3, 4, 5, and 6, comprising 15.791 acres, situated in Pitkin County, Colorado,
as more particularly described in the most recent plat of the Subdivision, recorded with the Pitkin
a)
County Recorder on December 16, 2021, at Reception No. 683528. All six lots are owned by
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Willoughby Ponds Trust ("the Trust"); and,
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WHEREAS, the Trust submitted a request to the City Water Department for extraterritorial
Q) water service from the City to serve six lots in the Subdivision; and,
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a WHEREAS, treated water service has been provided to a single-family residence on Lot 3
since approximately 1993 and Lot 6 since approximately 1997. Lots 1, 2, 4, and 5 are vacant; and,
jWHEREAS, the 'Trust seeks to obtain additional municipal water service from the City for
the Subdivision, including expanding the existing water service for Lot 6 for purposes of serving
t.
a single-family residence, and to provide options for future water service for residences on Lots 1,
2, 3, 4, and 5 if developed during the terms of the Water Service Agreement, for a total of 15.13
ECUs for all uses within the Subdivision; and,
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o WHEREAS, the property to be served is located in Pitkin County, and not within the City
O limits of the City of Aspen; and,
A 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
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Ingrid K. Grueter, Pitkin County, CO
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, City staff have determined that the proposed Water Service Agreement will
comply with the requirements of the Municipal Code of the City of Aspen, Colorado (the "Code"),
and the expanded service will comply with the requirements of the City's Water Service Extension
Policy, which permits extension of City water service extraterritorially 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, and referred to here as "Resolution No. 5"); and,
WHEREAS, City Council must make a determination that the proposed water service
extension complies with the above policies and is in the best interests of the City of Aspen; and,
WHEREAS, the City Council has had an opportunity to review with City staff the proposed
terms and conditions under which the City is willing to extend water service to the Subdivision.
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 serve six lots in the Willoughby Ponds Estates Subdivision,
comprising approximately 15.791 acres, situated in Pitkin County, Colorado outside the City limits
of the City of Aspen as set forth in the Water Service Agreement, is in the best interest of the City,
and complies with requirements of the Municipal Code of the City of Aspen, Colorado ("the
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Code") and with the requirements of the City's Water Service Extension Policy and Resolution
No. 5, Series of 1993, and the City Council approves the Water Service Agreement in substantially
the form attached hereto as Exhibit A and incorporated herein by reference. All City officials and
employees are hereby directed to take such actions as are necessary and appropriate to fulfill the
obligations of the City pursuant to the Water Service Agreement. The Mayor, City Manager, City
Clerk and the Water Director are hereby authorized and directed to execute the Water Service
Agreement and any related documents necessary or desirable to effectuate the transactions
provided for in the Water Service Agreement, provided that neither the Water Service Agreement
nor any other documents are authorized for execution until the City Attorney has approved the
form thereof.
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 in a court of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
Section 4. A public hearing on the ordinance shall be held on the 13th day of
September, 2022, in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
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INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the 23`d day of August, 2022.
73�
Torre, Mayor
Attest: 1:4
Nicole Henning, City Clerk
FINALLY ADOPTED, PASSED AND APPROVED THIS 13th DAY OF SEPTEMBER,
2022.
ffofz�Torre, Mayor
Attest:
Nicole Henning, City Cler
Approved as to form:
ames R. True, City Attorney
CITY OF ASPEN
WATER SERVICE AGREEMENT
(Development Outside City Limits)
This Water Service Agreement (the "Agreement") is entered into this day of
2022, ("the effective date") in Aspen, Colorado, between THE CITY OF
ASPEN, a Colorado municipal corporation and home rule city whose address is 427 Rio Grande
Place, Aspen, Colorado 81611 (hereafter the "City"), and Willoughby Ponds Trust, a trust organized
under the laws of Colorado whose address is c/o MB Investments, Attention: John Bucksbaum, 1 N.
Franklin Street, Chicago, IL 60606 ("Owner").
RECITALS
A. 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, such charter, and all such ordinances, rules, regulations, policies and resolutions.
B. Owner is the owner of all six lots in the Willoughby Ponds Estates Subdivision,
comprising approximately 15.791 acres, situated in Pitkin County, Colorado, as more particularly
described in the most recent plat of the subdivision, recorded with the Pitkin County Recorder on
December 16, 2021, at Reception No. 683528 and referred to collectively in this Agreement as the
"Subject Property" or individually as lot(s) or by lot number. The Subject Property and current lot
configurations are depicted on Exhibit A attached hereto.
C. Treated City water service has been provided to a single-family residence on Lot 3
since approximately 1993 and to a barn on Lot 6 since approximately 1997. Lots 1, 2, 4 and 5 are
vacant.
D. Owner seeks to obtain additional municipal water service from the City for the Subject
Property, seeking to expand the existing service for Lot 6 to include a single family residence, and
to provide an option for future municipal service for residences on Lots 1, 2, 4 and 5 if developed
during the term of this Agreement, for a total of 15.13 ECUs for all uses within the Subject
Property, including the existing uses on Lots 3 and 6.
E. The Subject Property is located outside the corporate limits of the City.
F. Additional municipal water service provided to the Subject Property pursuant to this
Agreement will require Owner to provide easements to the City, to record covenants running with
the Subject Property, and to design and construct certain water lines and water system
infrastructure, all as provided in this Agreement.
G. The Municipal Code of the City of Aspen, Colorado (the "Code"), §25.12.020(b), 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, that such
service will be provided 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 to protect its best
interests.
H. The City requires a loop system or a cross -tie system such that when water main
extensions are made, such extensions shall be made in a manner that will allow cross -connection with
another of the City's treated water mains to create a looped system.
I. The City's Water Service Extension Policy permits water service extension only upon
demonstration that such extension will meet the policy goals and requirements of Resolution No. 5
(Series of 1993) as amended [codified at Section 25.12.020(b) of the Code, as the same may be further
amended from time to time], including the requirement that the City must recover its costs associated
with such extraterritorial service.
J. 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 of
providing such extraterritorial service.
K. 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.
L. 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").
M. The City desires to encourage the use of raw water supplies for certain outdoor irrigation
where practical and feasible to do so while still protecting decreed instream flows, so as to reduce the
dependence on treated water for this purpose and to minimize the costs of providing treated water
service to the Subject Property.
N. The City is willing to provide water service to the Subject Property on the terms and
conditions of this Agreement.
THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the City and Owner agree as follows:
AGREEMENT
Water Service to Subject PropgV.
1.1 The City hereby agrees to provide treated water service to 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 for the lots within the Subject Property, and subject to
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the additional terms and conditions as set forth in this Agreement.
1.2 Owner understands that the City will be the sole provider of treated water to the
Subject Property, provided however, that except as provided herein with respect to Lot 3, the City
shall not be required to supply water to serve outdoor irrigation uses, and further provided, that the
maximum annual 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 5.35 acre-feet.
1.3 City water service will be available to serve 15.13 ECUs allocated among the six
lots included in the Subject Property. Lot 3 is allocated 5.69 ECUs to serve the existing residence
on that lot, and Lot 6 is allocated 4.46 ECUs to serve the existing barn and planned single family
residence on that lot. The remaining 4.98 ECUs may be allocated among the lots within the Subject
Property as determined by Owner at any time prior to application for water service to a particular
lot. Owner may also allocate any unallocated ECUs to Lot 3 and 6 at Owner's discretion and
subject to the terms of this Agreement. Owner acknowledges that if no ECUs are allocated to a
particular lot, that lot will not be entitled to receive City water service, and will also not be entitled
to receive water service from another source, such as a well, except pursuant to paragraph 2 herein.
1.4 Any ECUs that have not been allocated as of the Termination Date (defined in
paragraph 2 below) will be deemed relinquished as of the Termination Date. Any ECUs that are
allocated to existing structures will not be relinquished or affected as of the Termination Date, and
any ECUs allocated and relied upon for purposes of a building permit that has been submitted as of
the Termination Date will not be relinquished as of the Termination Date unless the building permit
is denied, withdrawn, or otherwise not approved.
1.5 Only those structures and uses approved for each lot within the Subject Property
may be served under this Agreement.
1.6 The City intends to allow the existing single-family residence on Lot 3 to
continue to be served by its current ECU allocation (5.69 ECUs), and the Owner may allocate
some of the unallocated ECUs to Lot 3 at Owner's discretion. The Owner of Lot 3 shall be
exempt from the provisions of this Agreement unless or until:
(1) the single-family residence on Lot 3 is to be Substantially Remodeled or
Rebuilt as those terms are defined by the City of Aspen Municipal Code,
Title 25, Section 25.12.070, as it may be amended from time to time; or
(2) the then owner of Lot 3 constructs, builds or erects any additional structures
apart from the existing single-family residence that require water service.
The occurrence described in either paragraph 1 or 2 above shall be referred to as a
"Lot 3 exemption termination event".
Lot 3's exemption status is not affected if the existing single-family residence on
Lot 3 is demolished or destroyed by an act of nature or through any manner not
purposefully or negligently accomplished by the owner, so long as any repairs or
reconstruction do not utilize more than the existing ECUs allocated to Lot 3 at the
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time the single family residence on Lot 3 is demolished or destroyed.
Notwithstanding the exemption described herein, Lot 3 shall be subject to the
provisions of paragraphs 1.4 and 1.5.
1.7 Owner intends to maintain the existing barn on Lot 6 but to relocate it within Lot 6,
and to construct a new single-family, residence on Lot 6 in accordance with land use and building
permit approvals issued by Pitkin County ("the Lot 6 residence project") The new residence and
the barn on Lot 6 will be served by a single water tap which will provide water service currently
estimated at 4.46 ECUs for both the residence and the barn. The owner may allocate some of the
unallocated ECUs to serve the single-family residence and barn in accordance with the Lot 6
residence project. Lot 6 shall be exempt from building the "Shady Lane Line" in compliance with
paragraph 3.4.3 herein unless or until:
(1) the single-family residence as constructed pursuant to the Lot 6 residence
project plans or barn is to be Substantially Remodeled or Rebuilt as those
terms are defined by the City of Aspen Municipal Code, Title 25, Section
25.12.070, as it may be amended from time to time; or
(2) the then owner of Lot 6 constructs, builds, or erects any additional structures
apart from the Lot 6 residence project and the existing barn that require water
service.
The occurrence described in either paragraphs 1 or 2 above shall be referred to as a
"Lot 6 exemption termination event".
Lot 6's exemption from building the Shady Lane Line shall not be affected if the as -
built Lot 6 residence project or barn is demolished or destroyed by an act of nature
or through any manner not purposefully or negligently accomplished by the owner,
so long as any repairs or reconstruction do not utilize more than the existing ECUs
allocated to Lot 6 at the time the Lot 6 residence project or barn is demolished or
destroyed. Notwithstanding the exemption described herein, Lot 6 shall be subject to
the provisions of this Agreement.
1.8 Payment of all fees provided for in this Agreement, including impact and mitigation
fees owed to the City in addition to tap fees and system development fees, will be made on a per lot
basis. The owner of an individual lot must pay all impact and mitigation fees for any lot or lots upon
which development is to occur upon submission of a building permit application for improvements
resulting in new construction on such lot (including the Lot 6 residence project).
2. Term and Termination.
2.1 Termination by City: Termination Date. The City's obligation to provide treated
water service to the maximum commitment of 15.13 ECUs to the Subject Property pursuant to
paragraph 1 of this Agreement shall remain in full force and effect for fifteen (15) years from the
effective date ("Initial Term"). Following the Initial Term, this Agreement will automatically renew
for four (4) additional five (5) year terms (each an "Extension Term") unless the City provides
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written Notice of Termination to Owner and all lot owners as shown in the records of the Pitkin
County Assessor, at least one -hundred and eighty (180) days prior to the expiration of the Initial
Term or the then applicable Extension Term. During each Extension Term, the Agreement shall
continue in force upon the same covenants, terms, and conditions, subject to any impact or
mitigation fee increases as may be imposed pursuant to paragraph 6. The Termination Date will be
the earlier of (1) the calendar day after the last day of the notice period following a Notice of
Termination as described above or (2) the expiration of the final Extension Period. If the Agreement
is terminated by the City as provided in this paragraph, this Agreement shall nevertheless remain in
full force and effect following the Termination Date with respect to any Lots which are then
receiving City treated water service, or have constructed or are in the process of constructing
improvements that will require City treated water service, or have applied for building permits as of
the date of the Notice of Termination. As of the Termination Date, the City's obligation to provide
treated water service pursuant to this Agreement shall cease as to all lots to which City treated water
service has not been provided, or on which there is no ongoing construction that will utilize treated
City water service, or as to which no building permits have been applied for prior to the Notice of
Termination provided that such building permit is approved. As of the Termination Date, all ECUs
that are not in use or allocated to then -ongoing construction or building permits that have been
applied for shall be deemed relinquished by Owner and the current owners of all lots affected by the
Notice of Termination.
2.2 Termination by Owner. At any time during the Initial Term or any Extension Term
of this Agreement, Owner may terminate this Agreement with respect to all vacant lots as provided
in this paragraph. Owner may terminate this Agreement as to all vacant lots to which City treated
water service has not been provided, or on which there is no ongoing construction that will utilize
treated City water service, or as to which no building permits have been applied for prior to the date
of the Notice of Termination, provided that such building permit is approved ("lots subject to
termination") by providing Notice of Termination, signed by Owner and any then owners of lots
subject to termination to the City prior to the filing of an application for a building permit for any of
said lots. This Agreement shall remain in full force and effect with respect to any lots which are
then receiving City treated water service, or have constructed or are in the process of constructing
improvements that will require City treated water service, or have applied for building permits as of
the date of the Notice of Termination. Upon exercise of Owner's termination right hereunder, the
parties agree to execute and record a statement of termination of this Agreement as to the lots
subject to termination including a statement that the Agreement remains in effect as to any lot that is
not a lot subject to termination. The following terms and conditions shall apply to any such
termination: (1) the 50-foot easement for the Shady Lane Line, described in Exhibit C shall remain
in place; (2) any of the 15.13 ECUs that have not been allocated to any lot that is not a lot subject to
termination shall be deemed relinquished by Owner and owners of all lots subject to termination; (3)
the lots no longer subject to this Water Service Agreement will not be subject to the requirements of
this Agreement, provided, however, that the Loughran and Overflow Ditch water rights will
continue to be operated as provided in paragraph 3.3.4; and (4) the Owner or owners of any vacant
lots subject to the termination may apply for individual or shared wells to provide water service to
said lot(s). The Termination Date pursuant to this paragraph shall be the date on which Notice of
Termination is provided to the City. If this Agreement is terminated by Owner pursuant to this
paragraph, the City makes no representation, guarantee, or assurance that it can or will provide
treated water service to a lot or lots subject to the termination should the Owner or owners of such
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lot or lots seek treated water service from the City in the future.
3. Easements, Covenants, Restrictions, and Construction by Owner.
3.1 Easements, Covenants and Restrictions. Non-exclusive public utilities easements for
current and future water utility infrastructure, including construction and access easements, will be
identified, mapped, dedicated and recorded by Owner simultaneously with recording of the
covenants provided for herein. Such easements, covenants and restrictions shall be binding upon and
shall run with all of the lots within the Subject Property, shall be in form approved by the City, and
shall contain provisions set forth below. The easements, covenants and restrictions shall be finalized
and recorded prior to the earlier of (1) transfer or sale of any lot to a new owner (including any
transfer by operation of law or by means of bequest, devise or inheritance or trust distribution) or (2)
application for a building permit for any lot, with the exception of any permits that may be needed
for the relocation of the barn located on Lot 6, or construction of the Lot 6 residence project and any
infrastructure work associated with the barn and residence, but in no event shall such easements,
covenants and restrictions be recorded later than December 1, 2022 or as mutually agreed to by the
parties in writing, signed by the parties. Notwithstanding the foregoing sentence, the easement
shown on Exhibit C shall be dedicated and recorded as provided in paragraph 3.2.4.
3.2 Required Terms for Easements. The easements will be in form approved by the City
and shall include the following terms and such other terms and conditions as the City deems
necessary or appropriate.
3.2.1 The easements will be of the size and scope and at the locations shown on
the maps attached hereto as Exhibit A (the Third Amended Subdivision Plat depicting the
Utility Easement extending from Red Mountain Road through Lots 4, 5 and 6), Exhibit B
(the Upper Bench Waterline Plan & Profile and the Vault Plan), and Exhibit C (the Proposed
Willoughby Way & Shady Lane Waterline Interconnection). All easements shall be fifty (50)
feet in width and consistent with the City's requirements, standards and specifications.
3.2.2 The easements will be surveyed following installation of the water system
infrastructure provided for in the covenants, and the easements will be re -recorded with the
final as -built surveyed locations and legal descriptions.
3.2.3 The easements may be relocated by mutual written agreement of the City
and the owner of any lot encumbered by an easement. If an agreement is made to relocate
an easement at the request of a lot owner, the lot owner shall be responsible for all costs
associated with relocation of the easement, including recording costs.
3.2.4 The Shady Lane Line easement shown on Exhibit C will be dedicated and
recorded as an amendment to the subdivision plat within 30 days of approval of the Water
Service Agreement by the City Council or at such other time as may be mutually agreed to
by the parties in writing signed by the parties. Said easement shall be a permanent,
perpetual easement.
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3.3 Required Terms for Covenants and Restrictions. The covenants and restrictions will
be in a form approved by the City and shall include the following terms and such other terms and
conditions as the City deems necessary or appropriate.
3.3.1 The covenants and restrictions will be binding upon all lots within the
Subject Property; however, Lot 3 shall be exempted from the application of said covenants
and restrictions until a Lot 3 exemption termination event occurs as set forth in paragraph
1.6.
3.3.2 No lot within the Subject Property shall ever be further subdivided into
smaller lots or conveyed or encumbered in any less than the full original dimensions as
shown on the recorded plat; provided however, grants or dedications of easements for
utilities may be made to encumber less than all of one lot. Notwithstanding the foregoing,
lot line adjustments between or among the lots in the subdivision shall not be prohibited,
subject to approvals required by Pitkin County.
3.3.3 Each lot within the Subject Property to which ECUs are allocated must
connect to the City treated water system if it is available to serve such lot when such lot
requires water service. Except as provided in this paragraph, no wells or independent water
sources or supplies, other than the Loughran Ditch and Overflow Ditch water rights used as
described herein, may be used to provide raw or treated water service to any lot within the
Subject Property. If treated water service is not available to service a lot or lots to which
ECUs have been allocated at the time a building permit is requested, and such service is not
expected to be available at the time service will be needed because reasonable and good
faith efforts have been made to construct the Shady Lane Line as contemplated under
paragraph 3.4.3 herein, but construction of the Shady Lane Line in accordance with
paragraph 3.4.3 herein is not possible despite such efforts, then such lot owners(s) may
apply for individual or shared wells for their water service. Should the City later construct
infrastructure that allows City treated water service to become available to serve such lot or
lots, the owner(s) of the lot or lots may connect to the City water line and will connect to
said City water line at such time as any individual well serving such lot or lots becomes
inadequate to serve such lot or lots and must be redrilled or replaced. In order to connect to
the City water line, the lot owner must pay all then- applicable tap fees and other applicable
fees, and abandon its well or its interest in a shared well. The City will provide treated
water service to such lot pursuant to this Agreement in such amounts and at such levels of
service as determined by the number of ECUs allocated to the lot.
3.3.4 The Owner holds the following interests in the water rights decreed to
Loughran Ditch (a/k/a Laughran Ditch) and the Overflow Ditch in Case No. CA4033
(October 24, 1955), with change in point of diversion of both ditches decreed May 11,
1978, in Case No. W-3267 (Water Court, Water Division No. 5): 1.51 cfs of the 1.76 cfs
decreed to decreed to the Loughran Ditch and 0.75 cfs of the 1.0 cfs decreed to the
Overflow Ditch ("Owner Water Rights"). Upon execution of this Water Service
Agreement, Owner, and subsequent lot owners, may continue to use the Owner Water
Rights for irrigation within the Subject Property, in accordance with the decrees for the
Owner Water Rights, and subject to the following restriction: Diversions of the Owner
7
Water Rights shall be limited to 1/6th of the amount of the Owner Water Rights that are
legally and physically available measured at the Hunter Creek headgate during times that
decreed instream flows on Hunter Creek are not being met as determined by a validly
administered Colorado Water Conservation Board call for such decreed instream flow
water rights, including the Hunter Creek Flume & Pipeline water right that was decreed for
instream flow use in Case No. 80CW61 (Water Court, Water Division No. 5). The 1/6th
interest that may be diverted pursuant to this paragraph during an instream flow call may be
used for irrigation on any lot within the Subject Property at the discretion of Owner or as
otherwise provided for in the covenants. When the 5/6ths interest is being curtailed, the
curtailment shall occur at the point of diversion on Hunter Creek.
3.3.5 Except as provided in this paragraph with respect to Lot 3, no outdoor
irrigation will be permitted within the Subject Property using treated water. All lots shall
comply with the City of Aspen Water Efficient Landscape Standards in effect at the time of
building permit application for any structure on any lot within the Subject Property. Until a
Lot 3 exemption termination event occurs as set forth in paragraph 1.6, Lot 3 shall be
exempt from the restrictions contained in this paragraph and the owner of Lot 3 may
continue to irrigate with treated water up to a maximum area of 3,000 square feet of lawns
and gardens.
3.4 Water Lines and Infrastructure. At its own expense, Owner will design, construct,
install and test the water lines and infrastructure described below, and shown on Exhibits A and B in
accordance with and subject to the City's design, materials and construction specifications and
approval; provided, however, that to the extent the City desires any lines or facilities with capacities
larger than necessary to meet the needs of Subject Property, the City will be responsible for the
incremental cost of such enlarged or additional lines or facilities. "Incremental costs" are defined as
the difference between the total cost of a particular facility designed and constructed solely to meet
the needs of the Subject Property and the total cost of such facility as enlarged at the City's request.
3.4.1 The eight inch (8") water loop line within the easement described on Exhibit
A will be designed, constructed, installed and tested by Owner, at its expense, in
accordance with the City's then -existing design, construction, installation and testing rules,
regulations, policies and protocols, prior to or concurrently with commencement of
construction of the new residence on Lot 6, The line shall be inspected by the City prior to
burial. Installation of the loop line on Lot 6 is expected to require relocation of the existing
barn and driveway. Owner acknowledges that any site work or construction work
undertaken on Lot 6 with regard to the water line and related barn relocation and
infrastructure, prior to final approval of this Agreement by the City Council, is undertaken
at Owner's risk, and that Owner will not commence excavation for or construction of the
proposed new residence on Lot 6 prior to final approval of this Agreement by the City
Council.
3.4.2 The water system improvements located in the Willoughby Way right of
way as shown on Exhibit B will be designed, constructed, installed and tested by Owner, at
its expense, in accordance with the City's then -existing design, construction, installation
and testing rules, regulations, policies and protocols, prior to or concurrently with
commencement of construction of the new residence on Lot 6. The line shall be inspected
by the City prior to burial.
3.4.3 Owner is not required to design, construct or install the water loop line
between Willoughby Way and Shady Lane as shown on Exhibit C ("Shady Lane Line")
prior to commencement of construction of a new residence on Lot 6. At such time as
Owner, or any subsequent lot owner, wishes to construct any residence, dwelling unit(s), or
structure(s) requiring water service on any of the four (4) currently vacant lots (Lots 1, 2, 4
and 5), or a Lot 3 exemption termination event occurs, or a Lot 6 termination event occurs,
and if the water loop line to be located in the easement for the Shady Lane Line shown on
Exhibit C has not yet been installed, Owner or any subsequent lot owner will, at its cost,
obtain the needed permits and design, construct, install and test said line in its entirety
subject to the City's prior approval of the design and specifications, before or concurrently
with the construction of any residence, dwelling unit(s), or structure(s) requiring water
service on any of the four (4) vacant lots, or any Lot 3 or Lot 6 exemption termination
event. The City may, but need not, construct and install the Shady Lane Line at any time at
its discretion, and at its own cost. If the City has constructed and installed the Shady Lane
Line at its own expense, and the Owner or any subsequent owner of Lot 1, 2, 4 or 5
thereafter files an application for a building permit to construct a residence, dwelling
unit(s), or structure(s) requiring water service on Lot 1, 2, 4 or 5, or seeks a building permit
for Lot 3 or Lot 6 that results in an exemption termination event as set forth in paragraph
1.6 and 1.7 herein, Owner or the lot owner filing for the building permit shall reimburse the
City for its costs incurred in constructing said line. This reimbursement obligation will be
included in the covenants described in paragraph 3.3. Notwithstanding the foregoing, the
reimbursement obligation shall cease on the Termination Date if the City terminates the
Agreement as provided herein, and has installed the Shady Lane Line at its expense and no
application for a building permit for a water -using structure is filed by Owner or any
subsequent owner of Lot 1, 2, 4 or 5, or Lot 3 (to the extent Lot 3 remains exempt from this
Agreement as set forth in paragraph 1.6) or Lot 6 (to the extent Lot 6 remains exempt from
this provision as set forth in paragraph 1.7) ) as of the date of this Agreement. The
parties shall cooperate fully in the application process to obtain all necessary permits and
approvals required to construct the Shady Lane Line, regardless of which parry first seeks
to construct the Shady Lane Line, and if the parry seeking to construct the line is ultimately
unable to obtain all of the necessary permits and approvals to construct the line, after using
reasonable good faith efforts to do so, the Shady Lane Line need not be constructed at that
time, and the Owner, or subsequent owners of Lots 1, 2, 4 and 5, may nevertheless obtain
treated City water if they are otherwise authorized to do so in accordance with this
Agreement, including the requirement that ECUs available pursuant to this Agreement
have been allocated to the lot owner, and their residences may be connected to then -
existing City water lines upon payment of all applicable fees, as provided in this
Agreement. Nothing herein shall prevent or prohibit the City from constructing the Shady
Lane Line if it is able to do so at a later date at its cost, and the City retains the discretion to
require Lots 1, 2, 4, and 5, to connect to the Shady Lane Line in the future and seek
reimbursement for each lot's share of the costs to construct the Shady Lane Line.
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3.5 Service Lines. Owner (or any subsequent lot owner) will install any service lines
required for such owner's lot in accordance with and subject to the City's design, materials and
construction specifications and approval, at such lot owner's own expense. Such lines will remain
the property and sole responsibility of the lot owner. Other than replacement of an existing service
line (including replacement if required by construction of the Shady Lane Line, as provided in 3.4.3
above) new service lines extended from the existing water distribution system (or any new water
lines that may be constructed pursuant to this Agreement) will only be installed in conjunction with
the actual construction of a properly permitted building. A new service line may not be installed for
any lot until the building permit for that lot has been issued and all utility fees due under this
Agreement are paid.
4. Water Rights and Payment in Lieu. The parties acknowledge that it is the policy of the
City, if water rights are not transferred to it by a parry seeking extraterritorial water service, to
require payment in lieu of water rights sufficient in quantity and quality to provide the water
required for the requested water service. The parties acknowledge that Owner owns, uses or controls
its interest in the decreed water rights in the Loughran and Overflow Ditches as described in
paragraph 3.3.4. The City has determined that it is in City's best interest to permit the Owner and
subsequent owners of lots within the Subject Property to continue to use these raw water rights on
the terms and conditions set forth herein and to accept payment to the City in lieu of water rights as
provided in paragraph 4.2. There are no wells on the Subject Property and Owner agrees not to
install any wells on the Subject Property (except as provided in paragraph 2.2 and paragraph 3.3.3),
it being the parties' intention that the only domestic, potable water supplies to be used on or in
connection with the Subject Property are those supplied by the City pursuant to this Agreement.
Notwithstanding the foregoing, should Owner initiate any water court or administrative proceeding
concerning the Owner Water Rights, or any other water rights, the City reserves the right to
participate in any water court or administrative proceedings as it deems appropriate to protect its
own water rights and supplies.
4.1 Use of Raw Water and Treated Water for Outside Uses on the Subject Property.
Owner understands and agrees that the City shall not provide any raw water or treated water for
irrigation or other outdoor uses pursuant to this Agreement, except with respect to Lot 3 as
provided herein. All raw water use on the Subject Property shall be in accordance with this
Agreement and with the decrees for the Owner Water Rights, and otherwise in accordance with
Colorado water law governing the appropriation and use of water, provided, however that the City
may take such actions as it deems appropriate to protect its own water rights and supplies, if Owner
seeks to change the Owner Water Rights or to obtain decrees for any wells authorized by this
Agreement. All lots shall comply with the City of Aspen Water Efficient Landscape Standards in
effect at the time of building permit application for any structure on any lot within the Subject
Property. Until a Lot 3 exemption termination event occurs, Lot 3 shall be exempt from the
restrictions contained in this paragraph and the owner of Lot 3 may continue to irrigate up to 3,000
square feet on Lot 3 with treated water. There will be no cross -connections of the raw water
supplies or infrastructure provided for irrigation on the Subject Property to the City's treated water
system. Owner, or a subsequent lot owner, will demonstrate in its plans, to the satisfaction of the
City, and will be responsible for, the proper installation, maintenance and testing of required
backflow prevention devices and for assuring that unprotected cross -connections, structural or
sanitary hazards do not exist on each lot within the Subject Property.
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Each lot owner's water systems (for both treated and raw water), including water systems
serving Lot 3 and Lot 6, whether or not an exemption termination event has occurred, will be
available for inspection as provided in the Code, to authorized City Representatives to determine
whether cross -connections or other structural or sanitary hazards exist, and to confirm that no
treated municipal water is being used for outdoor irrigation or aesthetic purposes other than the use
authorized for Lot 3 as provided herein.
4.2 Payment in Lieu of Water Rights. Each owner of a lot within the Subject Property,
will pay the amount in lieu of water rights for the ECUs allocated to such owner's lot (or such
lesser amount of ECUs as may be determined based initially upon a determination of ECUs
requested for such lot owner's intended construction per the building permit request submitted for
such owner's lot, to be finalized after construction is completed), in accordance with the Code.
These initial fees shall be paid by a lot owner prior to issuance of any building permit for such lot.
The payment in lieu amount will be determined in accordance with and in the amount as set forth in
the Code at the time of building permit application for such lot. Notwithstanding the foregoing, the
payment in lieu of water rights will be imposed on the owner of Lot 3 at such time as a building
permit is applied for that results in a Lot 3 exemption termination event as set forth in paragraph
1.6 herein. Tap fees, hookup charges and system development fees will be computed and paid as
provided in paragraph 10.
4.3 Instream Flow Protection. Owner agrees to suspend deliveries of its raw water rights
described in paragraph 3.3.4 and any other raw water supplies, decreed or undecreed, that it may
now or hereafter acquire or use on the Subject Property, in the manner described in paragraph 3.3.4
when the decreed instream flows for Hunter Creek are not being met as determined by a validly
administered CWCB call for such instream flow rights as decreed at the time of this Agreement. In
addition, Owner agrees to curtail usage of its raw water in the same manner as if the raw water
supplies were being provided by the City, whenever the City declares a water shortage pursuant to
the Code provisions in effect at the time of any such declared shortage. Owner agrees that such
curtailment shall occur at the point of diversion on Hunter Creek. The requirements of this
paragraph shall be included in the covenants required by this Agreement and will be binding upon
all lots within the Subject Property.
5. Construction. Any construction or installation of new water lines shall occur only in
accordance with then applicable Code, rules, regulations, standards, specifications and policies of the
City. An automated meter reading system shall be installed for all lots that will be served with City
treated water pursuant to this Agreement.
6. Fees. Owner shall timely pay all fees imposed by the City in connection with drafting,
reviewing and approving this Agreement, including outside legal and consulting fees. The Owner or
its successor owner of any lot within the Subject Property, shall timely pay all fees imposed by the
City in connection with reviewing and approving design drawings and construction plans for such
lot, including outside legal and consulting fees. Owner or any successor owner of any lot within the
Subject Property shall also be responsible for timely acquiring and paying for all permits and permit
fees from entities other than the City (such as Pitkin County and/or other regulatory agencies)
necessary for construction of the water mains, lines, and associated facilities, when and to the extent
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Owner or any successor owner is required to construct said water mains, lines and associated
facilities.
Additionally, Owner or any successor owner of any lot shall pay, in addition to
applicable tap fees and system development fees, all mitigation and impact fees imposed by the City
pursuant to the applicable Code provisions as required by paragraph 1.8 and this paragraph at the
time of application for a building permit for such lot, provided, however, that this paragraph will
apply to Lot 3 at such time as the owner of Lot 3 applies for a building permit that results in a Lot 3
exemption termination event as set forth in paragraph 1.6 herein. All City mitigation and impact
fees, which include School Land Dedication, Transportation Demand Management (TDM)/Air
Quality, Parks, and Affordable Housing, shall be calculated pursuant to the Aspen City Land Use
Code in effect on January 1, 2022. Affordable housing mitigation shall be calculated using the
methodology described in Exhibit D attached hereto. As an example, the impact and mitigation fees
for the proposed development on Lot 6 are shown in Exhibit D. Affordable housing mitigation fees
paid to Pitkin County for each lot shall be deducted as a credit toward the affordable housing
mitigation fees due to the City for the same lot pursuant to this Agreement in an equal dollar
amount. Owner or its successor owner may pay fee -in -lieu for affordable housing mitigation,
extinguish Certificates of Affordable Housing as allowed by the City of Aspen Land Use Code, or
mitigate on -site with deed restricted affordable housing. City Council approval is not required for
fee -in -lieu payment. The City, at its sole discretion, may adjust the City mitigation and impact fee
rates, including the affordable housing mitigation fee calculation methodology, to reflect current
Code requirements by providing thirty (30) days written notice prior to the beginning of any
Extension Term, and those adjusted mitigation and impact fees will be applicable until further
adjustment by the City as provided in this paragraph.
7. Inspection of Construction. Any inspection, connection, and payment of fees required
of Owner or any lot owner shall be in accordance with then applicable Code, rules, regulations,
standards and policies of the City.
8. Testing. Upon completion of construction by Owner or any lot owner of any of the
water lines described herein, and before any new water service is delivered to a lot pursuant to this
Agreement or additional water service is delivered to Lot 3 or Lot 6 due to an exemption
termination event as described in paragraphs 1.6 and 1.7 herein, all water service lines and facilities
(both new and existing) shall be tested and approved by the City in accordance with then applicable
Code, rules, regulations, standards and policies of the City.
9. Treated Water Service. The City will provide treated water service in accordance with
the Code and applicable policies, rules and regulations, to Lots 1, 2, 4 and 5, and additional water
service to Lot 6 as herein provided, and will continue to provide treated water service to Lot 3 as
herein provided, to the lesser of the total number of ECUs allocated to the particular lot, or the
number of ECUs provided for by the final approved design drawings for that lot, provided that the
maximum volume of water the City shall be required to supply each year shall not exceed the
amount set forth in paragraph 1.2 above. Any increase in the maximum amount of treated water
service or ECUs requested for the Subject Property will require approval by the City, and
amendment of this Agreement, which approval may or may not be granted.
12
The treated water to be delivered by the City pursuant to the terms of this Agreement may be
used for all lawful in -building residential purposes and for fire protection, and may be used for
swimming pools and hot tubs, but not for other outdoor uses such as irrigation, ponds (including
ponds for fire protection use) or aesthetic water features, except as authorized herein for Lot 3. All
water use, including use of Owner' raw water rights, will be consistent with this Agreement, the
City's Water Policy Resolution (Resolution No. 5, Series of 1993, as amended), and water
conservation requirements and, whether or not the Subject Property is annexed to the City, water
use within the Subject Property shall be subject to the City's water shortage ordinances, and the
City's Water Efficient Landscaping Standards. The recording of this Agreement (which may occur
before or after the covenants required by this Agreement are recorded) shall constitute a covenant
running with the Subject Property and with each lot within the Subject Property.
10. Tap Fees, Hookup Charges and System Development Fees - Computation and Payment:
Scheduling of Taps. All tap fees for treated water service herein provided shall be assessed 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. The City Water Department shall determine scheduling of all physical taps or
connections to the main lines, which scheduling shall be done in accordance with then applicable
Code, rules, regulations, standards and policies of the City.
The Owner or subsequent owner of any lot at the time of application for a building permit for
that lot shall also pay to the City any applicable system development fees pursuant to the existing
Code requirements prior to building permit issuance for all ECUs required to provide the new
water service (or additional water service in the case of Lots 3 and 6) for such lot owner's planned
improvements, based upon a determination of ECUs requested for such lot owner's intended
construction per the building permit application accepted for such owner's lot, and modified, with
additional payment or refund as needed, after completion of construction and final ECU
determination.
11. Meters Service Line Replacements, and Back low Prevention Devices. Each existing and
new service line shall be metered in accordance with the Code at the sole expense of the lot owner
receiving water service. Owner acknowledges that service lines, meters and cross -connection or
backflow prevention devices, that may presently exist on Lot 3 and Lot 6 may not meet the City's
standards, and that those lots may not have cross -connection or backflow prevention devices.
Service lines on Lot 3 and Lot 6 will be replaced if they fail or are damaged, or if replacement is
required as part of any building permit sought for Lot 3 or Lot 6, and such service lines must meet
the City's standards. Meters, cross -connection and backflow prevention devices will be installed at
the lot owner's expense. Prior to commencement of any construction, the City will inspect the
existing service lines and will determine the extent to which replacement may be necessary. In
addition, as provided in the Code, and whether or not an exemption termination event has occurred,
the City may also inspect the existing service lines serving Lot 3 and Lot 6 for cross -connection and
backflow prevention devices, and may require installation of devices to prevent cross -connections
and backflow as provided in the Code.
12. Limitations on Provision of Water Service. This Agreement is only for the supply of
13
treated water service as herein described and no expansion of uses, connections, or water service
beyond those set forth herein is in any way authorized by this Agreement. The City is not by this
Agreement prejudging, certifying or guaranteeing its ability to provide treated water service to any
use or structure except as provided herein, nor may this Agreement be used as evidence of approval
of any land use requests, or as evidence of approval of water service for any land use request,
except as provided herein.
13. Service Subject to the City's Charter, Codes, Rules, Regulations and Policies. The
Owner and its successors in interest shall be bound by, and all water service provided hereunder
shall be subject to, all applicable provisions of the Charter of the City of Aspen and the Code, as
well as all applicable rules, policies or regulations of the City now in effect or as may be hereafter
adopted as to provision of water service by the City and use of water on the Subject Property;
except as otherwise provided for by the "Annexation" provisions in paragraph below.
Said Charter, Code, rules and regulations shall be covenants running with the land on the
Subject Property and all lots within the Subject Property, and shall be as fully enforceable on the
Subject Property as if the same were situated inside the City. The provisions required for the
covenants as set forth herein will be specifically included in the covenants. Owner 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, and use
of water on the Subject Property, including curtailment during times of shortage, elimination of any
actual or potential cross -connections, and the utilization of water conservation devices as set forth in
the Code. Owner also agrees to prohibit waste of water on the Subject Property, and to make
reasonable efforts to enforce such prohibition. The waste of water shall be defined as set forth in the
Code.
14. Source of Water Supply. Owner recognizes that the City's water supply is dependent
upon sources from which the supply is variable in quantity and quality and beyond the City's
reasonable control; therefore, no liability shall attach to the City under this Agreement on account of
any failure to accurately anticipate availability of water supply or because of an actual failure of
water supply due to inadequate runoff, poor quality, failure of infrastructure, or other occurrence
beyond the City's reasonable control.
15. No Guarantee of Water Quality, Quantityor Pressure. The City makes no
promise or guarantee of pressure, quantity or quality of water supply for any purpose, including
fire suppression, except as specifically provided herein or as is required by applicable federal, state
and local laws and regulations. The City agrees to treat its water to meet all mandatory local, state and
federal potable water standards and to exercise reasonable care and foresight in furnishing water
hereunder equal in quality to that furnished inside the City.
16. Property Rights in City Water. All water furnished under this Agreement is provided on a
contractual basis for use on the Subject Property as described in this Agreement, and all property
rights to the water to be furnished hereunder are reserved to the City. Water service provided under
this Agreement does not include any right to make a succession of uses of such water, and upon
completion of the primary use of the water on the Subject Property, all dominion over the water
provided reverts completely to the City. Subject to the prohibition against waste and any other
14
limitations on water use imposed in this Agreement, Owner shall have no obligation to create any
particular volume of return flow from the water furnished under this Agreement. Owner 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.
17. Enforcement by the City. The parties to this Agreement recognize and agree that the City
has the right to enforce its rules, policies, regulations, and ordinances and the terms of this
Agreement in accordance with then applicable enforcement provisions of the Code, rules,
regulations, standards and policies of the City. Additionally, in the event that Owner, any lot
owner, or any users who have purchased or leased a portion of the Subject Property violate the
applicable 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 with respect to Owner and such
subsequent lot owners or users, as if the Subject Property were located within the City limits.
Without limiting the foregoing rights and remedies, Owner agrees that the City may also enforce
such applicable rules, policies, regulations or ordinances by injunction, the parties agreeing that
the damages to the City from such violations are irreparable, and there is no adequate remedy at
law for such violations. The City shall be free from any liability arising out of the exercise of its
rights under this paragraph.
18. 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 by a court of
competent jurisdiction, 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.
19. Annexation. (a) Upon the written request of the City, at its sole discretion, Owner and/or
its successors in interest shall petition for and/or consent to annexation of 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 any lot in the Subject Property, to the extent
such approvals and rights for a lot are legally vested on behalf of Owner or its successors in
interest prior to annexation to the City, subject to the following:
(i) If a building permit for a lot has been accepted by and is pending in the county or if
a permit has been issued by the county and construction is not complete at the
effective date of annexation, the following provision shall apply:
The lot owner shall proceed, at such lot owner's sole expense, to have the county
take action on its pending building permit application and have the permit issued by
the county, with any fees due through the time of building permit issuance paid in
accordance with the county vested rights approval. Once the permit has been issued
by the county, the City will then have jurisdiction to do necessary inspections,
15
change orders and any other functions and services the City provides during the
construction process, all in accordance with City code. To the extent that the lot
owner has paid building review and inspection fees in advance to the county prior to
the effective date of annexation and any City department thereafter incurs any costs
in reviewing, inspecting, or otherwise in relation to completion of construction in
accordance with the county -accepted building plans, the lot owner is responsible for
paying all City fees in accordance with City fee schedules in effect at the time of
annexation, notwithstanding there may be duplication of effort between the City and
the county. It is the lot owner's responsibility in such circumstance to obtain refunds
from the county, if available.
(ii) If no building permit for a lot has been accepted by the county at the effective date
of annexation and the vested rights have not expired, the county approval and vested
right is not diminished except that the dimensional allowances permitted
(specifically Floor Area) by the county under the vested right will be reviewed and
calculated under the allowances and limitations of the City's municipal code in
effect at the time of building permit application and all fees due at the time of or in
connection with the building permit application shall be calculated in accordance
with applicable City code.
(iii) On any lot for which land use or development approvals are not vested in
accordance with law at the effective date of annexation, or for which vesting has
expired, development on such lot shall be subject to the terms, conditions, and
regulations of the City code.
(iv) Notwithstanding annexation of all or any part of the Subject Property, any new
development on any lot shall be subject to the City urban runoff management
requirements., including payment to the City of applicable fees related to such
requirements. Urban runoff management plans shall be submitted to and approved
by the City prior to issuance of any building permit for new development by the
City or the County.
(b) Notwithstanding annexation of all or any part of the Subject Property, this Agreement
will remain in full force and effect, subject to termination as herein provided.
(c) Failure of Owner 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 Owner 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 Owner and their successors in interest shall pay,
all costs and fees associated with such annexation.
20. No Regulated Public Utili y Status. The parties agree that by this Agreement the City
does not become a regulated public utility compelled to serve other parties similarly situated.
Owner agrees that neither it nor its successors in interest shall at any time petition the Colorado
16
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.
21. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be deemed
a waiver of any such right and shall not affect the right of such party to exercise at some future
time said right or any other right it may have hereunder.
22. 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 below, or at such other address as shall be given
by notice pursuant to this paragraph.
Owner: Willoughby Ponds Trust
c/o John Bucksbaum
71 S. Wacker Drive, Suite 2130
Chicago, IL. 60606
City of Aspen: City of Aspen Utilities Director
427 Rio Grande Place
Aspen, CO 81611
Copies of such notices shall also be sent in the same manner to the City Attorney, City of
Aspen, 427 Rio Grande Place, Aspen, Colorado 81611.
23. Force Majgure. 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.
24. Amendment, Assignment. Neither this Agreement, nor the obligations of either party
hereto, nor the right to receive water service hereunder, may be amended or assigned without the
written consent of the parties hereto, provided, however, that subsequent owner of any lot within
the Subject Property shall be subject to the terms and conditions of this Agreement and shall be
entitled to receive water service pursuant to this Agreement as provided herein without amendment
of this Agreement.
25. Entire Agreement. Except as otherwise provided herein, this Agreement, including its
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.
26. Int=retation. Titles and paragraph headings shall not be used to alter the
meaning of this Agreement.
27. Binding Agreement - Recording. This Agreement is binding upon the parties hereto,
their successors and assigns, and any sale of the Subject Property, or any lot or other portion of the
17
Subject Property shall be subject to this Agreement as provided herein. This Agreement, including
the Exhibits hereto, shall be recorded with the Pitkin County Clerk and Recorder at Owner's
expense and, together with the covenants required by this Agreement, 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.
28. Governing Law.• Venue,• Attorne 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 attorney fees.
29. Authorization of Si natures. 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
30. County arts. This Agreement may be signed using counterpart signature pages, with
the same force and effect as if all parties signed on the same signature page.
IN WITNESS WHEREOF, the parties have executed this Water Service Agreement the date
and year first above written.
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and Home Rule City
LN
Torre
City of Aspen Mayor
Attest:
City Clerk
Approved as to form:
Aspen City Attorney
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Afflk MV
WILLOUGHBY PONDS TRUST, a Colorado trust
By:
Ann Friedman, Co -Trustee
STATE OF }
}ss
COUNTY OF }
The foregoing instrument was acknowledged before me this —day of , 2022, by
a person satisfactorily identified to me as , Co -Trustee of the Willoughby
Ponds Trust.
Witness my hand and official seal.
My commission expires:
OWNER
By:
John Bucksbaum Co -Trustee
STATE OF }
}ss
COUNTY OF I
The foregoing instrument was acknowledged before me this day of , 2022, by
a person satisfactorily identified to me as , Co -Trustee of the Willoughby
Ponds Trust.
Witness my hand and official seal.
My commission expires:
NOTARY PUBLIC
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INDEX OF EXIHBITS
EXHIBT A - Third Subdivision Plat depicting the Utility Easement from Red Mountain Road
through Lots 4, 5, and 6
EXIHBIT B - Upper Bench Waterline Plan & Profile and Vault Plan
EXHIBIT C - Proposed Willoughby Way & Shady Lane Waterline Easement and Interconnection
Locations
EXHIBIT D — City of Aspen Mitigation Calculations
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