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HomeMy WebLinkAboutordinance.council.026-03 Series of 2003 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING AN EXTRATERRITORIAL WATER SERVICE AGREEMENT WITH LYLE D. REEDER AND STANFORD H. JOHNSON FOR PROVISION OF TREATED WATER SERVICE TO TRACT A OF PARCEL A OF GOVERNMENT LOT 20 SUBDIVISION EXEMPTION, ALSO KNOWN AS 333 SOUTH SECOND STREET. WHEREAS, Lyle D. Reeder and Stanford H. Johnson (the "Applicants") have applied for extratendtorial water service from the City to serve one single-family residence and one caretaker unit on the property described as Tract A of Parcel A of Government Lot 20 Subdivision Exemption, according to the plat thereof filed January 8, 1993 in Plat Book 30 at Page 23, Pitkin County, Colorado, and otherwise known as 333 South Second Street, the final plat of which project was approved by Pitkin County by Resolution No. 93-38 and recorded at Reception No. on ; and 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 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, setting forth 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 WHEREAS, the City Council has had an opportunity to review with City staff the proposed extension of water service to Applicants' 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 333 South Second Street, 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 Citywater service to 333 South Second Street 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 remain in full force and effect and shall control provision of water to 333 South Second Street 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 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 heating on the ordinance shall be held on the day of ., 2003, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. , iNTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council o£the City of Aspen on the __ day of ,2003. Helen Klanderud, Mayor Attest: Kathryn S. Koch, City Clerk FINALLY ADOPTED, PASSED AND APPROVED THIS DAY OF ,2003. Helen Klandemd, Mayor Attest: Kathryn S. Koch, City Clerk CITY OF ASPEN WATER SERVICE AGREEMENT (New Development) This Water Service Agreement is entered into this day of , __, in Aspen. Colorado, between THE CITY OF ASPEN, a Colorado municipal corporation and home rule city whose address is 130 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Lyle D. Reeder and Stanford H. Johnson, individuals whose address is P.O. Box 4859, Aspen, CO 81612 lhereafter "Owner"). WlTNESSETH 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, Owner is the owner of certain real property comprising approximately .9 acre situated in Pitkin County, Colorado, referred to in this Agreement as the "Subject Property" and described as follows: Tract A of Parcel A of Government Lot 20 Subdivision Exemption, according to the Plat thereof filed January 8, 1993 in Plat Book 30 at Page 23, Pitkin County, Colorado, also known as 333 S. Second Street, Aspen, Colorado; WHEREAS, Owner seeks to construct on the Subject Property one single family residence with associated caretaker unit (referred to herein as the "Project"); and WHEREAS, Owner 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, detailed submission and final plat approval for Project have been granted by the Board of County Commissioners for Pitkin County by Resolution No. 93 -38, Pitkin County Records, and a copy o f said final approval was recorded at Reception No. _, on [date] with the Pitkin County Recorder; and WHEREAS, The Hearing Officer of the Pitkin County Community Development Department issued a determination approving the 1041 Hazard Review and Conceptual Submission for the Project in Determination 32-2002 (recorded with the Pitkin County Recorder at Reception No. 470968 on August 14, 2002), and an amended determination at Determination No. 01-2003 (recorded with the Pitkin County Recorder at Reception No~ 478371 on February 5,2003); and WHEREAS, water service for the Project will require the construction and installation of a water main extension, hydrant and related facilities as described in this Agreement; and WHEREAS, the Municipal Code 0fthe 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 requires a loop system or a cross-tie system (at Owner's expense) such that when water main extensions are made, such extensions shall be made in a manner that will allow inter~connection with another of the City's treated water mains to create a looped system; and WHEREAS, the City's Water serVice Extension Policypermits 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; 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, th~ City is not hereby representing that it is a regulated public utility, or holding itself out to the public in general as capable o for 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, Owner 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 authorizing this Agreement; and WHEREAS, the City has approved the Application, and is willing to provide water service to Owner on the terms and conditions of this Agreement; THEREFORE, in consideration of the promises and the mutual promises and covenants contained herein, the City and Owner agree as follows: 2 Water Service Agreement (new developmen0 12/97 (rev. 04/01) PURPOSE OF AGREEMENT 1. Water Service to Proiect and Subiect Property. The Cityhereby agrees with Owner 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 single-family residence and caretaker unit in such sizes as are ultimately approved by the City of Aspen, but not to exceed 9,400 square feet for the residence and 400 square feet for the caretaker unit should there be no change in the approvals granted to Owner by Pitkin County recorded at Reception Nos. 470968 and 478371 and summarized on Exhibit B. Outdoor irrigation will not exceed 3,000 square feet. Owner understands that the City will be the sole provider of raw water service (if any 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 five (5) ECUs, and further provided, that the maximum volmne of' treated water the City shall be required to provide to the Project and the Subject Property pursuant to this Agreement shall not exceed two (2) 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 Owner has not completed construction of the water main extension described on EXhibit B by October 31, 2005, ~nless completion of construction is delayed by force majeure as defined in paragraph 34 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 OWNER 3. Mains, Lines and Facilities. Owner will design and construct the water main extension as described on Exhibit B in accordance with and subject to the City's design, mater/als and construction specifications and approval, at Owner's expense. 4. Preconstruction Exhibits. The following exhibits concerning the Project have been prepared by Owner and have been reviewed and relied upon by the City in entering into this Agreement, and shall not be substantially modified without the City's agreement: ExhibitA: Description of existing facilities, if any, that will be incorporated into the water system infrastructure for the Project. Exhibit 2t is not applicable to this Agreement, and therefore not required. Exhibit B: General Description of the Project, including facilities and uses. Exhibit C: a. Reduced-size copies of the final plans for the water main extension to be constructed pursuant to this Agreement, as approved by the City. 3 F/ater Service Agreement (new developmenO 12/97 (rev. 04/01) b. Schedule for completion of the Project water mains, lines and associated facilities to be constructed pursuant to this Agreement as approved by the City. Exhibit D: 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, if any, to be conveyed to the City. Exhibit E: Other circumstances, if any, affecting the cost or type of construction required for the water mains, lines and associated facilities to be constructed pursuant to this Agreement. There are no other circumstances, and £xhibit E is not required for this Agreement. 5. Final Plans. The City has approved the final plans and specifications for the water main extension to serve the Subject Property. No substantial changes shall be made to the approved final plans and specifications without the City's prior written approval. Owner shall contact the City Water Department at least ten (10) working days prior to commencement of construction to arrange a preconstmction meeting between representatives of the Water Department, the Water Department's inspector, and Owner'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. Owner'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. 6. Bond Requirements. Prior to commencement of construction, Owner shall obtain one or more performance and completion bonds naming the City as a third-party beneficiary thereof, in the amount of 100% of the water system construction costs. Such bonds shall be in 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 main extension, or for the provision of mater/als therefor. Owner shall obtain and assign to the City warranties from materialmen and suppliers which warrant the water main extension constructed by Owner free and clear of defects for a period of two (2) years from the date of completion construction. In addition, Owner shall obtain and assign to the City (in form approved by the City Attorney) a maintenance or warranty bond equal to one hundred percent (100%) of the water main extension construction costs, ensuring the proper condition and operation 4 Water Service Agreement (new developmen0 12/97 (rev, 04/01) of such water main extension for a period of two (2) years from the date of acceptance of the system by the City. 7. Payment in Lieu of Conveyance of Water Rights and Structures. The City acknowledges receipt of the sum of $3,000.00 in lieu of water rights sufficient in quantity and quality to provide the water required for Owner's project. Owner 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 to the Subject Property. 8. Construction. Upon completion of the prerequiSites described in paragraphs 3 through 7 above, Owner shall proceed with due diligence to construct the water main extension 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. 9. Fees. Owner 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. Owner shall also be responsible for timely acquiring and paying for all perm/ts and permit fees from entities other than the City (such as Pitkin County and/or other regulatory agencies) necessary for construction of the water main extension. 10. Inspection of Construction. Construction must be inspected by the City's engineers or other designated persormel prior to burial or final installation. Owner shall give the City Water Department reasonable advance notice when the water main extension and associated facilities are ready for burial or installation, and the City's engineer or agent shall inspect said main and associated facilities within two working days of such notice. Owner shall timelypay ail construction inspection fees. 11. Easements. The water main extension shall be located within the City's right ofway, so no easements are required. The water service lines to the residence and caretaker unit will be owned by Owner, and do not require easements. 12. Testing - Conveyance; As-Built Drawings. Upon completion of construction and before any water is delivered pursuant to this Agreement, the water main extension shall be tested. Upon approval by the City of the test results and delivery to the City of the required maintenance and warranty bonds, and surveyed as-built drawings, the City shall accept the water main extension, and it shall be conveyed (excluding the individual service lines) to the City, free and clear of all liens and encumbrances, by deed in form acceptable to the City Attorney. Performance and payment bonds provided by Owner 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 the water main extension. As-built drawings of the water main extension, including the main 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 Agreement (new development) 12/97 (rev. 04/01) WATER SERVICE 13. Treated Water Service. Upon completion of construction and acceptance of the water main extension by the City, 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, provided that the maximum volume of water the City shall be required to supply each year shall not exceed the amount (in acre-feet) set forth in paragraph 1 above. Any change in the treated water service requirements for the Subject Property will require approval by the City, and an~endment 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 and up to 3000 square feet of lawns and gardens by drip or sprinkler irrigation means. Notwithstanding the foregoing; all water use will be consistent with the City's Water Policy Resolution (Resolution No. 5, as amended, (Series of 1993)), and water conservation ordinances. 14. Tap Fees and System Development Charges - Computation and Payment; Schedulin~ 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. The City Water Deparm~ent shall determine scheduling of all physical taps or com~ections to the main lines. Owner 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 construction of the water main extension is commenced. 15. Service Lines. Each service line shall be metered in aCcordance with the Code at the sole expense of Owner and cross~connection and backflow prevention devices will be installed at water user's expense. An automated meter reading system shall be installed for each service line. 161 Limitations on Provision of Water Service. This Agreement is 0nly 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 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. 17. Service Subiect to the City Charter, Codes, Rules, Regulations and Policies. 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 Aspen Municipal Code, as well as all applicable rules, policies or regulations of the City now in effect ol as may be hereafter adopted. Water Service Agreement (new developmenO 12/97 (rev, 04/01) 18. Rules Regarding Water Use. Owner 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 Exhibits hereto shall be recorded as covenants running with the land and shall be as fidly enforceable on the Subject Property as if the same were situated inside the City. 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, 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. Owner also agrees to prohibit waste of water on the Subject Property, and to make reasonable efforts to enforce such prohibition. Waste of water shall be defined as set forth in the Code. 19. Source of Water Supply. The parties to this Agreement recolgfize 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. 20. No Guaranty of Water Quality, Quantity or Pressure. The City makes no promise or guarantee of pressure, quantity or quality of water supply for anypurpose, 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. 21. 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 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, 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. VIOLATIONS 22. Enforcement by the City. The parties to this Agreement recognize and agree that the City has the right to enforce its rules, policies, regnlations, ordinances and the terms of this Agreement by the disconnection of the supply of water prOvided hereunder. Additionally, in the event that Owner 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. Without limiting the foregoing rights and remedies, Owner agrees that the City may also enforce such violations by injunction, the parties agreeing that the damages to the City from such violations are irreparable, and 7 Rater Sen,ice Agreement (new developmenO 12/97 (rev. 04/01) 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 fights under this paragraph. TERMINATION 23. Termination by Agreement. Except as provided to the contrary herein, this Agreement shall only be terminated in writing by mutual agreement and the term oft/tis Agreement shall continue until such termination. 24. 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 inValidl ~he 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 25. Annexation. Annexation of the Subject Property to the City shall be a condition precedent to the City's obligation to provide water service pursuant to this Agreement. Therefore, within 30 days of the date on which this Agreement is approved by City Council, Owner shall petition for the annexation of the Project and the Subject Property into the City. Owner acknowledges that the City's land use code regulations, rather than those of Pitkin County, shall apply to the residence and caretaker unit to be constructed on the Subject Property. Owner specifically acknowledges that the maximum allowable floor area of 9,800 square feet total for the residence and caretaker unit approved by Pitkin County for the Project will be recalculated using applicable City of Aspen zoning requirements. In addition, Owner acknowledges that the Project must implement the City's residential design standards, be reviewed for 8040 Greenline compliance, conform to the City's engineering standards for storm water and soil stability, and any other applicable City land use regulations or other development regulations. Failure of Owner to commence the annexation proceedings within 30 days of Council approval of this Agreement, or to complete annexation within a reasonable time thereafter shall constitute a material breach of this Agreement authorizing the Cityto terminate the same. Alternatively, failure of Owner to commence and complete annexation as herein required shall authorize the City to commence and/or complete such armexation on Owner's behalf, in which event the City shall charge, and Owner shall pay, all costs and fees associated with such annexation. This provision shall apply to any successors in interest to Owner, Notwithstanding annexation of all or any part of the Subject Property, this Agreement will remain in full force and effect. ADDITIONAL REQUIREMENTS Water Service Agreement (new development) 12/97 (rev. 04/01) 26. Access. Access to the Subject Property from South Second Street shall be by means of an underpass, constructed and installed at Owner's expense. The underpass must be a traffic-rated reinforced concrete box culvert with inside dimensions of 16' high, 16' wide and 14' deep, with handrails at the top. Wing walls must be installed on each end for erosion control and slope stabilization. The final design drawings and specifications for the underpass must be approved by the City Engineering Department prior to construction. 27. Trail Grade and Accessibility. At Owner's expense, the approaches from the proposed underpass to th existing public trail alignment must be graded and adjusted to not exceed the allowable maximum profile grade required by the Americans With Disabilities Act ("ADA"). In addition, Owner must install, at Owner's expense, an ADA-compliant ramp for access from Second Street. 28. Driveway. Owner shall properly design and install, at Owner's cost, the horizontal alignment of the driveway serving the Subject Property to ensure emergency vehicle access and movement at the future building sites. 29. Second Street Up,adc. The length of Second Street from its existing improvements to the property line of the Subject Property must be upgraded at Owner's cost to meet the City's standards, which include including fine grading, base and Paving, installati°n °fcurb and gutter, and sidewalks to ensure proper performance and drainage conveyance to the existing collection system. The final design drawings and specifications for such upgrades must be approved by the City Water Department prior to construction. 30. Repaying and Restoration. All street cuts needed for extension of utility lines to the Subject Property must be prepped and re-paved in conformance with the most recent City Engineering Standards applicable at the time the street cut is made. Such re-paving shall be completed as soon as reasonably practicable, but in no event later than six months from the date of completion of construction of utility system infrastructure to serve the Subject Property. GENERAL PROVISIONS 31. 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. O~vner 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. 32. 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. 33. 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 Water Service Agreement (new developmenO 12/97 (rev. 04/01) pursuant to this paragraph. 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 816i 1. 34. Force Ma/cure. 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. 35. 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. 36. 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 owners of any portion of the Subject Property shall be subject to the terms and cOnditiOns °fthis Agreement and shall be entitled to receive water service pursuant to this Agreement without amendment of this Agreement. 37. 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. 38. Interpretation. Titles and paragraph headings shall not be used to alter the meaning of this Agreement. 39. 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 anyportion of either 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 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. 40. 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 attorney fees. 41. 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. 42. Counterparts. This Agreement may be signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. 10 Water Service Agreement (new development) 12/97 (rev, 04/01) IN WiTNESS WHEREOF, the parties have executed this Agreement the date and year first above written. THE CITY OF ASPEN, COLORADO ATTEST: A Municipal Corporation and Home Rule City By. By_ City Clerk Mayor APPROVED AS TO FORM: Aspen City Attorney Owner Lyle Reeder Stanford Johnson STATE OF ) COUNTY OF ) SUBSCPdBED AND SWORN to before me thls day of ., 200_, by Lyle Reeder and Stanford Johnson. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: Water Service Agreement (new developmenO 12/97 (rev. 04/01)