HomeMy WebLinkAboutordinance.council.024-96
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ORDINANCE NO.
Series of
J~i
1996
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A WATER SERVICE AGREEMENT WITH GERD M. ZELLER AND JOHN
GALARDI AND CINDY GALARDI FOR PROVISION OF TREATED WATER SERVICE TO
LOTS 1 AND 2, GOLF COURSE PROPERTY LOT SPLIT, ALSO KNOWN AS 39590
STATE HIGHWAY 82 AND 39600 STATE HIGHWAY 82.
WHEREAS, Gerd M. Zeller and John Galardi and Cindy Galardi
submitted an Application for Water Service to the City Water
Department, requesting that water service be provided to the
property described above; and
WHEREAS, the property to be served is located in Pitkin
County, and not within the city limi'ts of the City of Aspen; and
WHEREAS, Section 23-56 (b) 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 (Resolu-
tion No.5, Series of 1993, as amended) policies to guide municipal
water system development and servic~s 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 o:E the City of
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Aspen;
WHEREAS, the City Council has had an opportunity to review
with Ci'ty 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 water service extension to the
Applicants' property located outside the city limits of the City of
Aspen is in the best interests of the City and substantially
complies with the City of Aspen water policy for extraterritorial
services, as set forth in Resolution No.5, Series of 1993, as
amended, and therefore agrees to extend City water service to Lot
1 and Lot 2, Golf Course Property Lot Split, Pitkin County,
Colorado, on the terms and conditions set forth in the Water
Service Agreement attached hereto and incorporated herein by
reference.
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
appealed 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
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portions thereof.
Section 4. A public hearing on the ordinance shall be held
on the SJ d day of ~ 1996, in the city
council Chambers, Aspen city Hall, Aspen, Colorado.
the ci ty
(~(1 t1
Council
of
the
city
of
Aspen
provided by law
the L day
by
INTRODUCED, READ AND ORDERED PUBLISHED as
on
of
, 1996.
~l..-v 13~ (t
Johrl S. Bennett, Mayor
Attest:
Clerk
9 FINALLY
~~/
ADOPTED,
, 1996.
PASSED AND APPROVED THIS c:(Q
JOhn~~nn1(~V-
DAY OF
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CITY OF ASPEN
WATER SERVICE AGREEMENT
(New Development)
at r S'Frvice Agreement is entered into this / tv rf1
day of ,it";)'!?v', 199~, in Aspen, Colorado, between THE
CITY OF ASP N, a Colorado municipal corporation and home rule city
whose address is 130 South Galena Street, Aspen, Colorado 81611
(hereafter the "City"), and Gerd M. Zeller and John Galardi and
Cindy Galardi (hereafter "Applican'ts").
WITNESSETH
WHEREAS, the city owns and operates the city of Aspen water
system in accordance with the laws of the State of Colorado, and in
accordance with the charter, ordinances, rules, regulations, poli-
cies and resolutions of the City of Aspen, and 1:his Agreement is
entered into in conformity with, and subject to, all such laws,
charter, ordinances, rules, regulations, policies and resolutions;
and
WHEREAS, Applicants own certain real property situated in
Pitkin county, Colorado, described as Lots 1 and 2, Golf Course
Properties Lot Split, also known as 39590 State Highway 82, Aspen,
Colorado, and 39600 state Highway 82, Aspen, Colorado, and referred
to in this Agreement as the "Subject Property"; and
WHEREAS, Applicants seek to construc't two single-family
residences and one alterna'te dwelling unit the Subject Property, as
follows:
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and
Lot 1: Single family residence not to exceed
9,000 square feet;
Lot 2: Single family residence not to exceed
c1 cee '~,""'E10 square feet, and one alternate dwelling
unit.
above constructions are referred to herein as the "Project");
WHEREAS, Applicants 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
Water Service Agreement (new development) 06/96
WHEREAS, approval for the Project has been granted by the
Board of County Commissioners for Pitkin County, and a copy of said
approval is attached as Exhibit A; and
WHEREAS, water service for the project will require the
construction and installation of an eight-inch water main, lines
and related facilities as described in this Agreement; and
WHEREAS, the Municipal Code of the City of Aspen, Colorado
(the "Code"), requires that the extension of water service outside
the boundaries of the city shall be made only pursuant to a written
agreement with the city, 'that the city shall not be obligated to
extend such service, and may provide such service only upon a
determination that it is in the best interests of the City, and
that the City may impose such requirements by agreement as it deems
necessary to protect its best interests; and
WHEREAS, the city's Water Service Extension Policy permits
water service extension only upon demonstration that such extension
will meet the policy goals and requirements of Resolution No. 5
(Series of 1993), as amended, [codified at Section 23-56(b) of the
Aspen Municipal Code as the same may be further amended from 'time
to time]; and
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WHEREAS, the city requires a loop system or a cross-tie system
(at Applicants' expense) 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; 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 the city is not hereby representing that
it is a regulated public utility, or holding itself out to the
public in general as capable of or intending to provide water
service extraterritorially; and
WHEREAS, the Code provides for the rating of new or expanded
water service based on potential water demand as expressed in
equivalent capacity units (hereafter "ECU"); and
WHEREAS, the city desires to encourage the use of raw water
supplies for the purposes of lawn and other outside irrigation so
as to reduce the dependence on treated water for this purpose and
to minimize the costs of providing treated water service to the
Project and the Subject Property; and
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WHEREAS, Applicants have submitted their Application for Wa'ter
Service Extension (the "Application") and have 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
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WHEREAS, the City has approved the Application, and is willing
to provide water service to Applicants 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 Applicants
agree as follows:
PURPOSE OF AGREEMENT
1. Water Service to proi ect and Subi ect Propertv. The
city hereby agrees with Applicants to provide treated water service
to the Project and the Subject Property under the terms of this
Agreement in such quantities and to the extent herein provided so
as to serve the structures and uses authorized by Pitkin County
under the approvals granted to Applicants as shown on Exhibit A.
Pursuant to this Agreement, the City shall provide treated water
service to the Project and the Subject Property in an amount not to
exceed eight (8) ECUs, provided, however, that the maximum volume
of trea'ted water the city shall be required to provide to the
Project and the Subject Property pursuant to this Agreement shall
not exceed four (4) acre-feet per year. Only those structures and
uses approved for the Project and the SUbject Property may be
served under this Agreement.
2. Limitation of Time to Provide Service. The City's obli-
gation 'to provide water service to the Project and the subject
Property pursuant to this Agreement shall terminate if Applicants
has not completed construction of the 8-inch water main and related
facilities described on Exhibit B by June 30, 1998, unless
completion of construction is delayed by force majeure as defined
in paragraph 30 below, in which case the deadline shall be extended
by the same number of days as the force majeure delay that
prevented completion of construction.
CONSTRUCTION BY APPLICANTS
3. Mains. Lines and Facilities. Applicants will design and
construct the 8-inch water mains, associated facilities and hydrant
for the Project in accordance with and subject to the City's
design, materials and construction specifications and approval, at
Applicants own expense.
4. Preconstruct ion Exhibits. The following exhibits con-
cerning the Project have been prepared by Applican'ts and have been
reviewed and relied upon by the City in entering into this
Agreement:
Exhibit c:
a.
Design drawings acceptable to the city for the 8-
inch main, connection of the main to the City's
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system, and lines, hydrants and facilities to be
constructed pursuant to this Agreement, as approved
by the City, as well as design drawings acceptable
to the City showing how the extension is designed
to accept a future looped system interconnecting
the Tennis Club.
b.
Schedule for completion of the Project water
main and associated facilities to be con-
structed pursuant to this Agreemen't as ap-
proved by the city.
Exhibit D:
Operational impact statement containing information
necessary to permit Aspen to determine the operational
impact of Applicant's proposed extension on Aspen's
existing facilities and water supply. The information
provided includes, to the extent required by the Water
Department, requested water flow rates, impac't on water
quali ty, incremental costs for capital items, incremental
expense items (such as electric power and treatment
chemicals) and electrical consumption. Said information
also includes, if requested by the city, estimated man
hours for operation and maintenance of the proposed
facilities.
Exhibit E:
a. Estimated gross water requirement (gpd) and water
flow requirements for the Project for in-building
use, and Applicants' commitment that no more than
2,000 square feet of lawns and gardens on each lot
will be irrigated using treated water.
b.
Fireflow
hydrant,
storage,
provisions, including location of the
and size and description of fireflow
if any, to serve the Subject Property.
c. Description of general location of easements to be
conveyed to the City to enable it to operate,
maintain, repair and replace, reo
Exhibit F:
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.
5. Final Plans. The City has approved design drawings for
the 8-inch water main and other connections and facilities
necessary to serve the Subject Property. No substantial changes
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Water Service Agreement (new developmenl) 06196
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shall be made to such design drawings. Applicants's registered
professional project engineer shall inspect and certify 'the design
and installation of the water system main, and any o'ther lines and
facilities to be constructed pursuant to this Agreement.
6. Bond Reauirements. Prior to commencement of construc-
tion, Applicants shall furnish the city with performance and
payment bonds in form approved by 'the City Attorney in the amount
of one hundred percent (100%) of the water service system construc-
tion costs, which bonds shall ensure the completion of the
construction, and hold the city harmless for payment to the con-
tractor or any subcontractors, materialmen, or others involved in
the construction of the water mains, interconnections, lines and
associated facilities, or for the provision of ma'terials therefor.
Applicants shall also furnish to the city (in form approved by the
city Attorney) a maintenance bond equal to one hundred percent
(100%) of 'the water service system construction costs, ensuring the
proper condition and operation of such water service system for a
period of two (2) years from the date of completion and acceptance
of the system by the city.
7. Convevance of Water Riahts. permi ts and Structures.
Applicants shall, upon execution of this Agreement, convey (by deed
acceptable to the city Attorney) to the City all rights to the
existing well located on the Subject Property, including the well
structure, pump and o'ther facilities, the well permit, and any and
all water rights decreed to, associated with, or used to augment
the well, provided, however, that if a well permit, water court
adjudication, augmentation plan, or augmentation water is required
in order to legally withdraw and beneficially use water from the
well for outdoor irrigation and other beneficial uses, Applican'ts
shall obtain, at their expense, all required permits, water court
decrees and augmentation supplies, or shall provide the City with
funds sufficient to enable the City to obtain such permits, water
court decrees and augmentation supplies. Such conveyance shall be
a prerequisite to provision of water service to the Subject
Property. Applicants shall also convey to the City, by quitclaim
deed, all right, title or interest they may have in and to the
Holden Ditch.
Applicants will also contemporaneously provide to the City all
information in their possession, or available to them, regarding
the historic use of the foregoing water rights, including well
pumping records, diversion records, irrigation records, aerial
photographs, affidavits, and all other available information
concerning the use of said water rights, and shall cooperate fully
with the City in all water court proceedings brought to change or
defend said water rights.
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8. Construction. Upon completion of the prerequisi,tes
described in paragraphs 3 through 7 above, Applicants shall proceed
with due diligence to cons'truct the water transmission and distri-
bution main, lines and associated facilities in accordance with
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final plans and specifications approved by the
construction schedule. No construction shall
November 1 and April 1 without written permission
Department of Public Works.
ci ty and the
occur between
of the City's
9. Fees. Applicants 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
and inspection fees. Applicants 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 main, lines
and associated facilities.
10. Inspection of Construction. Construc'tion must be
inspected by the city's engineer or other designated personnel
prior to burial or final installation. Applicants shall give the
city reasonable advance notice when the mains, lines and/or
associated facilities are ready for burial or installation, and the
city's engineer or agent shall inspect said mains, lines and/or
associated facilities within twenty-four (24) hours of such notice.
11. Easements. Applicants shall obtain at its own cost and
convey in perpetuity to the City as-built non-exclusive easements
for the well, water mains, lines and other water facilities located
on their property, along with all necessary access easemen'ts for
operation, maintenance repair and replacement purposes ("ease-
ments") . The water main and water line easements must be large
enough to provide the City with at least ten (10) feet on either
side of water mains and lines and must specify that (1) sewer lines
must be located at least ten (10) feet from any water main or line,
and (2) other utilities must be located at least five (5) feet away
from any water main or line. Access easements and easements for
other facilities shall be of a size determined by the City to be
reasonably necessary for the operation, maintenance, and repair and
replacement of the facility to be located on such easement. Each
party shall be solely responsible for any injury or damages,
including costs and attorneys' fees, to persons or property arising
from its own negligent acts or omissions occurring on or resulting
from its use or occupation of any easement premises. Nothing
contained herein, however, shall constitute or result in any waiver
or diminishment of any defense or limitation available to the City
under the Colorado Governmental Immunity Act or other applicable
law.
12. Testinq - Convevance: As-Built Drawinqs. upon completion
of construction and before any water is delivered pursuant to this
Agreement, the main and all associated water lines and facilities
shall be tested and, upon approval by the city, conveyed (excluding
individual service lines) with all necessary non-exclusive
easements to the City, free and clear of all liens and encumbranc-
es, by deed in form acceptable to the City Attorney. Performance
and payment bonds provided by Applicants pursuant to paragraph 6
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above shall be adjusted to reflect the final actual construction
costs. The maintenance bond required by paragraph 6 above must be
in place and must reflect the actual construction costs prior to
the City's acceptance of any main, line or facility. As-built
drawings of the Project, including the water system and all other
utilities, shall be provided to the City on reproducible sepias
with a maximum size of 24" x 36", and on an "auto cad disk data
transfer file" tied into one (1) set of state plane coordinates.
WATER SERVICE
13. Treated Water Service. Upon completion of construction
and acceptance of the water main, lines, associated facilities and
easements 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 'tha't
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 amendment of this Agreement.
The treated water to be delivered by the city pursuant to the
terms of this Agreement may be used for all lawful in-building
municipal purposes, and for fire protection, swimming pools and the
normal and reasonable outside irrigation of trees, lawns and
gardens. Maximum outdoor irrigation shall not exceed 2,000 square
feet for Lot 1 and 2,000 square feet for Lot 2. Notwithstanding
the foregoing, all water use will be consis'tent with the City'S
Water Policy Resolution (Resolution No.5, as amended, (Series of
1993)), and water conservation ordinances.
14. Raw Water Service. The City will provide raw water for
irrigation purposes on the Subject Property pursuant to a separate
Raw Water Agreement. The Raw Water Agreement will provide, among
other things, that the city shall provide raw water in an amount
reasonably required for outdoor irrigation on the Subject Property
if and to the extent such raw water can be legally and physically
withdrawn from the well described in paragraph 7 above for irriga-
tion purposes on the Subj ect Property. The Raw Water Agreement
will also provide that the City may, at its option, provide raw
water to Applicants from other raw water sources, such as the
City'S existing ditch system, provided, however, that the City
shall not be required to provide a total quantity of raw water
greater than the amount that can be legally and physically
withdrawn from the well described in paragraph 7 above for
irrigation purposes on the Subject Property.
Applicants hereby agree, in order to conserve water resources,
to landscape the area between their homes and State Highway 82 in
a manner that requires minimum watering, including, but not limited
to, xeriscape methods and the use of native vegetation. Notwith-
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Water Service Agreement (new development) 06/96
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standing the preceding sentence, Applicants shall plant native
cottonwoods wherever possible to maintain the current crop of
cottonwoods.
15. Tap Fees - Computation and Pavment: Schedulinq 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, plus the amount of any
tap fee increase adopted wi thin one year of the time of the
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 applic-
able hookup charges. Tap fees and hookup charges shall be paid at
the time of building permit issuance; any additional amount payable
due to an increase in the tap fees as set forth above must be paid
before water service will be provided. The city Water Department
shall determine scheduling of all physical taps or connections to
the main lines.
16. Service Lines. Each service line shall be metered in
accordance with the Code at the sole expense of Applicants and
cross-connection and backflow prevention devices will be installed
at Applicants' expense.
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17. Limitations on provision of Water Service. This Agree-
ment is only for the supply of treated water service as herein
described and no expansion of uses, connections, or water service
beyond those set forth herein and in the 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 trea'ted water service to any use or structure except as
provided herein, nor may this Agreement be used a.s 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.
18. Service Subiect to the citv Charter. Codes. Rules.
Requlations and Policies. Applicants and their 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
a.s all applicable rules, policies or regulations of the City now in
effect or as may be hereafter adopted.
19. Rules Reqardinq Water Use. Applicants agree to adopt all
provisions set forth herein as rules and regulations governing the
use of wa'ter on the Subject Property and for the Project, and agree
that this Agreement shall be recorded as a covenant running with
the land and shall be as fully enforceable on the Subject Property
as if the same were situated inside the City. Applicants agree 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 Agree-
ment, including curtailment during times of shortage, elimination
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of any potential cross-connections, and the utilization of water
conservation devices as set forth in the Code. Applicants also
agree that there will be no unnecessary or unreasonable waste of
water on the Subject Property. The unreasonable or unnecessary
waste of water shall be defined as set forth in the Code.
20. Source of Water SUPDlv. The parties to this Agreement
recognize that the city's water supply is dependent upon sources
from which the supply is variable in quantity and quality and
beyond the City's reasonable control; therefore, no liability shall
attach to the City under this Agreement on account of any failure
to accurately anticipate availability of water supply or because of
an actual failure of water supply due to inadequate runoff, poor
quali ty, failure of infras'tructure, or other occurrence beyond the
City's reasonable control.
21. No Guarantv of Water Oualitv. Ouantitv or 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 fore-
sight in furnishing water hereunder equal in quality to that
furnished inside the City.
22. Propertv Riqhts 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 comple-
tion 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, Applicants shall have no
obligation to create any particular volume of return flow from the
water furnished under this Agreement. Applicants agree 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
23. Enforcement bv the citv. The parties to this Agreement
recognize and agree that the City has the right to enforce its
rules, policies, regulations, ordinances and the terms of this
Agreement by the disconnection of the supply of water provided
hereunder. Additionally, in the event that Applicants 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 availa,ble to it at law
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or in equity, or as provided in the Code. without limiting the
foregoing rights and remedies, Applicants agree 'tha"t the city may
also enforce such violations 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.
TERMINATION
24. Termination bv Aqreement. Except as provided to the con-
trary herein, this Agreement shall only be terminated in writing by
mutual agreement and the term of this Agreemen't shall continue
until such termination.
25. Termination if Illeqal. The parties agree, intend and
understand that the obligations imposed by this Agreement are
conditioned upon being consistent with state and federal laws and
the Code. The parties further agree that if any provision of this
Agreement becomes in its performance inconsistent with the Code or
state or federal laws, or is declared invalid, the parties shall in
good faith negotiate to modify this Agreement so as to make it
consistent with the Code or state or federal laws as appropriate,
and if, after a reasonable amount of time, their negotiations are
unsuccessful, this Agreement shall terminate. The city agrees that
its contractual obligations hereunder will not be impaired by any
amendment to the Code unless such amendment (or impairment) is
mandated by state or Federal law.
GENERAL PROVISIONS
26. Annexation. Upon 'the request of the City, and at its
sole discretion, Applicants, or their successors in interest, shall
petition for and/or consent to the 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 the
Project or the Subject Property, to the extent such approvals and
rights are legally vested on behalf of Applicants prior to
annexation to the city. Land use approvals or development rights
not vested in accordance with law prior to the annexation shall be
subject to the terms, conditions, and regulations of the Aspen
Municipal Code upon annexation. Failure of Applicants or their
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 Applicants or their successors in
interest to commence and complete annexation as herein required
shall authorize the city to commence and/or complete such annexa-
tion on their behalf, in which event the City shall charge, and
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Water Service Agreement (new development) 06/96
Applicants and/or their successors in interest shall pay, all costs
and fees associated with such annexation.
27. No Reaulated Public utilitv status. The parties agree
that by this Agreement the city does not become a regulated public
utility compelled to serve other parties similarly situated.
Applicants agrees that neither they, nor their successors in
interest or assigns shall at any time petition the Colorado Public
utilities commission to acquire jurisdiction over any water rate
set by the city. The parties agree that in the event the city is
held to be a regulated public utility by virtue of this Agreement,
this Agreement shall terminate and be of no further force or
effect.
28. No Waiver. Failure of a party hereto to exercise any
right hereunder shall not be deemed a waiver of any such right and
shall not affect the right of such party to exercise at some future
time said right or any other right it may have hereunder.
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29. Notices. All notices required to be given shall be
deemed given upon deposit in the united states mail, first class
postage prepaid, properly addressed to the person or entity to whom
directed at his or its address shown herein, or at such other
address as shall be given by notice pursuant to this paragraph.
Copies of such notices shall also be sent in the same manner to the
ci ty Attorney, ci ty of Aspen, 130 South Galena street, Aspen,
Colorado 81611.
30. Force Maieure. No party shall be held liable for a
failure to perform hereunder due to wars, strikes, acts of God,
natural disasters, drought or other similar occurrences outside of
the control of that party.
31. Severabilitv. If any provision of this Agreement shall
be or become invalid or unenforceable, the remainder of the provi-
sions shall not be affected thereby, and each and every provision
shall be enforceable to the fullest extent permitted by law.
32. Amendment: Assiqnment. Neither this Agreement, nor the
obligations of either party hereto, nor the right to receive water
service hereunder, may be amended or assigned wi,thout the written
consent of the parties hereto.
33. Entire Aqreement. 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.
e
34. Interpretation. Neither the titles to this Agreement nor
the recitals appearing prior to paragraph 1 of this Agreement shall
be used to alter the meaning of this Agreement and in the event of
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Water Service Agreement (new development) 06/96
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a conflict, the terms and conditions of the nillnbered paragraphs
shall govern.
35. Bindina Aareement - Recordina. This Agreement is binding
upon the parties hereto, their successors and assigns, and any sale
of the Project, the subject Property, or any portion of either
shall be subject to this Agreement as provided herein. This Agree-
ment and, at the City's election, 'the Exhibits hereto, shall be
recorded with the Pitkin County Clerk and Recorder, and shall
impose covenants running with the land upon all of the Subject
Property. Deeds to subsequent owners shall provide notice of this
Agreement and the obligations contained herein.
36. Governina Law; Venue: Attornevs' 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 cos'ts
incurred in pursuing such remedies, including expert witness fees
and reasonable attorneys' fees.
37. Authorization of Sianatures. 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.
38. Counterparts. This Agreement may be signed using coun-
terpart 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 Agreemen't
the date and year first above written.
ATTEST:
TIIE CITY OF ASPEN, COLORADO
A Municipal corporation and
Home Rule City
By I:ioUuA7J~~
city Clerk(l J
;/,2<
As
By ~ /:iJ!--1~'bt
May1r
,'Y 1t7S~ /
Attorney
AS TO FORM:
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Water Service Agreement (new development) 06/96
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",.
t~pc ~tt:A~C/G t IU
Cindy GaHl,rdi
state of Colorado
County of
day
and
The foregoing
of
Cindy Galardi.
---
II
..11IItIIII
ss
was subscribed and sworn to before me this
, 199 , by Gerd M. Zeller, John Gal2Ltdi
WITNESS MY HAND AND OFFICIAL SEAL
[seal]
\user\cfc\wp\zeller .wsa
Water Service AgreemenJ (nev,; development) 06/96
I3/)X~'7 ,^,Sp0A G,"R/vIL
Address
My commission expires: 1 8-11 \ ) 97
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