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HomeMy WebLinkAboutordinance.council.040-96 . . e . \111111 1111111111111I11111111\1\1111111 \\11111111111111 403224 04/08/1997 04:02P ORDINANCE 1 of 4 R 21.00 D 0.00 N 0.00 PITKIN COUNTY CLERK ORDINANCE NO. 40 (SERIES OF 1996) AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING A REZONING FOR THE MAROON CREEK SUBDIVISION IN CONJUNCTION WITH ANNEXATION INTO THE CITY OF ASPEN WHEREAS, pursuant to Section 26.92.020 of the Aspen Municipal Code the applicant, the City of Aspen, has submitted a request for a map amendment to rezone the Maroon Creek Club subdiv.ision, two Pfister parcels, and the water tank parcel in conjunction with mmexation into the City of Aspen; and WHEREAS, through the development approvals of the Maroon Creek Club subdivision the developer agreed to am1.ex into the City of Aspen; WHEREAS, it is the obligation of the City of Aspen, under the Water Service Agreement, to not divest or diminish the land use approvals or development rights awarded by Pitkin County for the project in their entirety and has therefore maintained all existing County approvals, findings, written interpretations and amendments for the subdivision granted prior to the mmexation agreement; and WHEREAS, to further clarify the approvals and the intent of the Water Service Agreement and the Am1.exation Agreement, Exhibit A defines the following definitions of the Pitkin County Land Use Code that shall be utilized for purposes of determining height, bulk, and setbacks within the PUD: Accessory Structures Basement Building Height Floor Area (FAR) Setback Structure Yard Yard, front, side and rear WHEREAS, a duly noticed public hearing was held by the Aspen Plmming and Zoning Commission on October 22, 1996 to consider the application for a map amendment and forwarded a unanimous recommendation of approval to the Aspen City Council; and WHEREAS, the Aspen City Council having considered the Commission's recommendation for a map amendment at a public hearing on November 25, e e e I 111111 11111 111111 11I1 1111111 11111 11111 III 11111 1111 IUI 403224 04/08/1997 04:02P ORDINANCE 2 of 4 R 21.00 D 0.00 N 0.00 PITKIN COUNTY CLERK 1996, and finds that the proposed rezoning of the Maroon Creek Club subdivision is consistent with the requirements of the Municipal Code. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1: That it does hereby grant rezoning of the Maroon Creek Club Subdivision, the Pfister outparcel, the former ARU Facility outparcel, and the water tank parcel as follows: Former ARU Faciliiy Outparcel RR Pfister Outparcel RR Water Tank Parcel C PUD Overlay on all lettered and numbered parcels Lot# Proposed City Zoning: 1-5 6-12 13 14 15 16 17 18 19-40 41-45 46-48 '19 50 51 52 RR R-15A AB C C RR RMF-A RMF-A R-15A RR R-15A C RMF-A P/SPA AB A-C E-G B-K L-N P-S T-U P OS WP OS WP OS Section 2: The Official Zone District Map for the City of Aspen, Colorado, shall be and is hereby amended to reflect those rezoning actions as set forth in Section 1 above and such amendments shall be promptly entered on the Official Map in accordance with Section 26.28.30,B of the Municipal Code. e e e - 11111111111I1111111111111111111111111111111111111111111 403224 04/08/1997 04:02P ORDINANCE 3 of 4 R 21.00 D 0.00 N 0.00 PITKIN COUNTY CLERK Section 3: That the City Clerk be and hereby is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 4: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such provision and such holding shall not affect the validity of the remaining portions thereof. Section 5: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances, Section 6: A public hearing on the Ordinance shall be held on the day of November 25, 1996 at 5:00pm in the City Council Chambers, Aspen City Hall, fifteen (15) days prior to which hearing a public notice of the same shall be published one in a newspaper of general circulation within the City of Aspen, INTRODUCED, READ AND ORDERED PUBLISHED as provi~, by the City Council of the City of Aspen on the c28 day of 6 1996. John rc::tt,!~ ~ '..: i" ~ ,<;-' ""'". ~"''i'' ATTEST:'.t~ !.~ \I;~., .. .c) I::: A l (' 'ka1:iit~f1\ , 'och, City Clerk ,,,,,,,t"\\ day of ~~ , FINALL y~ adopted, passed and approved this ,;) S- 19% e e - "'11. '''( QI' lIS' (), ,...... "'",- / :.,,ATTES'f,,.:- '\ ~" . i.sfdhl}. ~ ". ~](athry.,l,\\' . each, City Clerk , "[ ORI,~ ' ,,' " " 111111111111111111111111111111111111111111111111111111I 403224 04/08/1997 04:02P ORDINANCE 4 of 4 R 21.00 D 0.00 N 0,00 PITKIN COUNTY CLEiRK ~ l-;~.~../t?r John ennett, Mayor e -- .i e - - #363258 11/15 93 ()8:42 Pee $34r).()(: St~. 730 ~G 797 Sllvia GaV1S. Pi~kirl C:,ty Clerk. D()c ~.I:)r) WATER SERVICE AGREEMENT THIS WATER SERVICE AGREEMENT ("Agreement") is entered into l:his 20 day of ~- e.'7J-v' ' 1993, in Aspen, Colorado, between th city of Aspen, Colorado, a municipal corporation and home rule city (hereafter "city"), and pearce Equities Group II Limited Liability company, a utah limited liability company (hereafter "PEG II"), and Arthur O. Pfister, Elizabeth H. Pfister and the SEP Residence Trust and the CDP Residence Trust, colorado Trusts (t,ogether hereafter "Pf ister") , and the Aspen Skiing Compa,ny (hereafter "company"). WIT N E SSE T H WHEREAS, PEG II owns, leases or holds an option to own or lease certain real property comprising approximately 369 acres situated in pitkin County (and more specifically described on Addendum "A" attached hereto and fully incorporated herein) upon which it seeks to construct a residential development and golf course project generally consisting of forty-three (43) single- family free-market homes, thirty-seven (37) free-market town- homes, forty (40) affordable residential housing units (39 multi- family rental units and 1 single-family sale unit), and expand the existing Maroon Creek Club, f/k/a the Grand Champions Club, including the construction of an lS-hole championship golf course with supporting facilities (the "Project property"); and WHEREAS, PEG II holds an option to purchase a certain portion of the Project Property from Arthur O. and Elizabeth H. pfister, more particularly described in Addendum "B" attached hereto and fully incorporated herein (the "pfister Property I"), which will be conveyed to PEG II should PEG II exercise its option to purchase same; and WHEREAS, PEG II and pfister seek to obtain municipal water services from the city for the development of the Project Proper- ty, inclusive of the Pfister Property I; and WHEREAS, Pfister also owns other property in the vicinity of the Project Property as more particularly described in Addendum "c" attached hereto and fully incorporated herein for which potable water service is desired from the City (the "pfister Property II"); and WHEREAS, the Company will own Lot 49 within the project Property for which potable water service is desired from city (the "Company Property"); and e e e #~::~,S:::,:25:=-. lljl~~L/'~?:5 O:~3:4.~~ r;>~C :~:::,40.I.)O t::r 730 F'i3 798 '31lvid. D,,;"...--i-:=.< F'i-tkin Cnt';I c.::ler'k. DDC'f-.\)("' WHEREAS, the Project, the Company property, and the pfister Properties I and II ("pfister's properties") are situated outside the corpdrate limits of the city; and I WHEREAS, detailed subdivision approval for the Project Property development (known as Maroon Creek Ranch, f/k/a Pfister Ranch/Golf) has been granted, as amended, by the Board of county commissioners for pitkin County, a copy of which is attached and incorporated herein as Addendum "0" (the "project"); and WHEREAS, water service for pfister's Properties, the Company Property, the Project, and the Project Property will require or has previously required tqe installation of certain water mains and related facilities as otherwise described in the Agreement; and WHEREAS, the Municipal Code of the city of Aspen, Colorado (hereinafter "code") requires that the extension of water service outside of the boundaries of the city shall be made 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 the city determines are necessary to protect the best inter- ests of the City; and WHEREAS, the city has determined that this Agreement and all covenants herein are necessary to comply with the Code and the water policies of the city of Aspen and the City is not entering this Agreement as a public utility nor 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 "ECD"); and WHEREAS, the city desires to encourage the use of raw water supplies for the purpose 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 Project Property and Pfister's Properties; and WHEREAS, the city, PEG II and pfister wish to enter into this water service agreement which shall supersede the defunct water service agreements dated July 9, 1990 entered into between the city, the Maroon Creek Development Corporation ("MCDC") and Pfister, as well as other agreements between and among the parties as more particularly described in paragraph 1 below; and 2 e e - . . B ~~-':::;-:::-,~'.258 11 / ~.S ,/ 9~, Ot::: '; 42 F:ec 'op.5LI.O. (H) E:;-::: 730 i:-' 799 Sllv12 Dav:s. Plt~:in Cnty Clerk. Doc $.01) WHEREAS, this water service agreement (the "Agreement") is designed and intended to comply with the water service extension policies as adopted' by the City through the passage of Resolution No.5 (Series or 1993), as amended June 28, 1993 pursuant to Resolution No. 49 (Series of 1993). NOW, THEREFORE, in consideration of the premises, mutual promises, and covenants contained herein, the parties agree as follows: PURPOSE OF AGREEMENT 1. Replacement of Prior Aqreements. This Agreement super- sedes: (1) the defunct water service and raw water agreements dated July 9, 1990, among the City, MCDC, and Pf ister; (2) and paragraphs 9, 12, 13, 14 and 15 of the Amended Agreement between Arthur O. Pfister and Elizabeth H. pfister and the city of Aspen, recorded with the pitkin County Recorder on February 3, 1984, at Book 460, page 373-83 (Reception No. 257066) (the "Amended l\greement"); (3) and the entire Agreement between Arthur O. Pfister and Elizabeth H. Pfister and the City of Aspen dated August 8, 1982, and recorded with the pitkin County Recorder at Book 431, pages 617-626; (4) and that certain Water Main Exten- sion and Service Agreement dated september 30, 1985, between the city and Owl Creek Development Corporation, a predecessor in interest to PEG II, to the extent the provisions of such agree- ment have not been fully performed or are inconsistent or con- flict with the terms of this Agreement. Notwithstanding the above, nothing herein shall be construed to vacate any easements as provided City under the terms of the agreements as identified in this paragraph, except as specifically provided for in this Agreement. 2. Water Service to Prolect and Prolect Property. The City hereby agrees with PEG II to provide potable water service to the Project and the Project Property, inclusive of pfister Property I, under the terms of this Agreement in such quantities and to the extent herein provided so as to serve the structures and uses as authorized by PitJdn County under the approvals as granted in PEG II's detailed final plat submission for the Project (see Addendum "0"). Subject to the terms of paragraph 17 below, the City shall provide potable water service to the Project and the Project property not to exceed 550 ECUs ("equiva- lent capacity units") under this Agreement; provided, however, that the maximum volume of treated water the city shall be required to provide to the Project and the Project Property under this paragraph shall not exceed 185 acre-feet/year. subject to the terms of paragraph 17 below, the structures and uses as ap~ proved for the project and project Property may be served without 3 e lie I \ j 1 if.3,::;.:5-25t:: 11/15 /'7'.3 ,~-c': oJ...:::::: R(,~'c: T.":::.:J.(). 00 B:-:" 730 F"3 800 SilvIa DaV13, Pitkin CI,tv Cle~'I,::. Doc $. ()(.; any ECU limitation per unit or use so long as the total of 550 ECUs as specified herein is not exceeded. The parties agree that of the 550 ECUs herein provided, the Maroon Creek Club (f/k/a the Grand Champions Club) presentl~ utilizes 15 ECUs. PEG II hereby \,aives any tap fee credits t~at may be available to it under the Code with respect to existing structures on the Project Property that are to be demolished. 3. Water Service to Pfister Property II. The City hereby agrees with Pfister to provide potable water service to the Pfister Property II under the terms of this Agreement to serve up 'to a total of five (5) single family homes of up to 15,000 square feet each and five (5) employee units to be located at the West Buttermilk site, and two. (2) single family homes of up to 15,000 square feet and two (2) employee units to be located at the Tiehack (also known as the "out parcel") site, with a total ECU limit of 57; provided, however, that the total volume of treated water provided to the Pfister Property II shall not exceed 12 acre-feet/year. Pfister may allocate the 57 ECUs among the 14 residential units as described above at his discretion. However, the parties agree that of said 57 ECUs, 8 are presently allocated to existing structures on the Tiehack parcel. If such existing structures are demolished, new structures built on the Tiehack parcel will be assessed tap fees based on those fees in effect at the time of construction, less the 1983 tap fee attributable to the original 8 ECUs. Should the new structures require or utilize more than 8 ECUs, the ECUs in excess of 8 will be deduct- ed from the remaining 49 ECUs herein provided to Pfister. The provision of water service to the Pfister Property II is contingent upon pfister having obtained all land use/development approvals from pitkin county or such other governmental entity with jurisdiction over said property. 4. Limitation of Time to Provide Service. The City's obligations to provide water service to the improvements located within the Project, the Project Property, the Company Property, and Pfister's Properties pursuant to the terms of this Agreement shall terminate if PEG II has not completed construction of the water transmission and distribution mains, internal distribution lines, and related facilities to serve the project by December 31, 1997, unless completion of construction is delayed by force majeure as defined in paragraph 37 below, in which case the deadline shall be extended beyond December 31, 1997, by the same number of days as the force majeure delay that prevented comple- tion of construction. 4 "II it~"..'c,3258 11/1:e, / 93 02" 22 Re'~ "<'.40. 00 E,c 730 F't3 801 Silvia La is. Pit~:in Cnty Cler"k. Doc $.l)() e CONSTRUCTION BY PEG II 5. Mains, Lines and Facilities. PEG ~I ~nd/or Pfister will design and construct the water transmission and distribution mains, associated facilities and internal d\stribution lines for the Project, the Company property, and Pfister's Properties, in accordance with and subject to the city's design, ma'terial and construction specifications and approval, and at PEG II's and/or pfister's own expense; provided, however, that to the extent the city desires any mains or facilities with capacities larger than necessary to meet the needs of the Project or Pfister's Proper- ties, the city will be responsible for the incremental cost of such enlarged or addit,iona,l mains or facilities. "Incremental costs" shall be defined as the difference between the total cost of a particular facility designed and constructed solely to meet the needs of the Project and/or Pfister and the total cost of such facility as enlarged at the City's request. 6. Preconstruct ion Exhibits. The following exhibits concerning the Project have been prepared by PEG II and/or Pfister and have been reviewed and relied on by the City in entering into this Agreement.l Exhibit A. A description of the water mains and relat- ed facilities required for the Project; Exhibit B. A map (schematic) of the water mains and related facilities required for the Project; Exhibit C. water mains pursuant to Schedule for completion of the Project and associated facilities to be constructed this Agreement as approved by the city; 'The parties acknowledge that PEG II and pfister have not at the time of the execution of this Agreement prepared and submit- ted to city detailed design drawings for the Project water transmission and distribution mains, internal distribution lines, storage tanks and/or other related facilities. Additionally, meaningful cost estimates for the construction of the water system have not yet been calculated. city retains the right and discretion to have submitted to it for review all design drawings and cost estimates for all water lines and facilities prior to the construction of the water system. Furthermore, and as provided in paragraph 5 of this Agreement, all design, materials and construction specifications for all water lines and water system facilities must be approved by the city prior to construc- tion and/or installation. e 5 e e e - #363258 11/l5/93 (18:42 Rec $34(J.(lO B~( 730 SilVla Dav:s. F'ltKil' Cnty Clerk:, Doc $.(_l~) r.~ r8 802 Exhibit D. Estimated gross water requirement (gpd) and water flow requirement for the project for in-building use at full development, and estimated potable iwater irrigation requirements, including number or' acres (not including the golf course) to beirrigated1with potable water; Exhibit E. Fireflow provisions, including location, size and description of fireflow storage to serve the Project and the Project Property; Exhibit F. Any other circumstances affecting the cost or type of construction required for the water mains and associated facilities to be constructed pursuant to this Agreement; and Exhibit G. ECU computation assumptions. (These exhibits will not be recorded with the Agreement due to their length and bulk.) 7. Bond Reauirements. Prior to the commencement of construction, PEG II and/or pfister shall provide payment and performance bonds (or other financial assurances acceptable to the city) to the city in a form approved by the city in the amount of one hundred percent (100%) of the water service system construction costs (less those incremental costs for enlarged or additional facilities to be borne by the City) which bonds shall insure the completion of the construction and hold the City harmless for payment to the contractor or any subcontractors, materialmen, or others involved in the construction of the water transmission and distribution mains, lines and associated facili- ties, or for the provision of materials therefor. This require- ment may be satisfied by naming the City as an additional or co- insured with pitkin County on such performance and payment bonds as furnished by PEG II and or Pfister to Pitkin county as a condition of approval for the recordation of the final plat for the Project. PEG II and/or pfister shall also furnish to the City, in a form approved by the city, a maintenance bond equal to 100% of the construction costs of the water transmission and distribution mains, lines and associated facilities, less those incremental costs for enlarged or additional facilities to be borne by the City, ensuring the proper condition and operation of such facilities for a period of two years from the date of completion and acceptance of the system by the City. 8. Construction. Upon completion of the prerequisites described in paragraphs 6 and 7 above, PEG II shall proceed with due diligence to construct the water transmission and distribu- 6 e e e - ~36325S li/15 ~_ ..l_ Rec $3~.O.C)O 8f~ 730 F'G 803 Sllvia Davis. ~-'tkin Ci~tv Cle(.~(. Doc $.Oc) tion mains, lines and associated facilities in accordance with the plans and specifications and the construction schedule. 9. Fees. PEG II and/or pfister shall be responsible to 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 and review fees, which fees shall be charged to PEG II on the same basis as they are charged to other parties similarly situated to PEG II. PEG II and/or pfister shall also be responsible for acquiring and paying for a'll 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 transmission and distri- bution mains, lines, and associated facilities. 10. Inspection of Construction. construction must be in- spected by the City's engineers or other designated personnel prior to burial or final installation. PEG II and/or pfister shall give the City reasonable advance notice when the mains, lines and/or associated facilities are ready for burial or installatiori, and the City's engineer or agent shall inspect said mains, lines and/or associated facilities within 24 hours of said notice. 11. TestinG - Convevance. Upon completion of construction and before any water is delivered pursuant to this Agreement, all distribution and transmission mains 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 encumbrances, excepting liens/encumbrances securing financing for the Project, by deed in a form acceptable to the City Attorney. Performance and payment bonds provided by PEG II and/or pfister pursuant to paragraph 7 above shall be reduced for that construction successfully completed and accepted by the City in the same proportion to that fraction the numerator of which is the cost of the construction successfully completed and accepted by the City which is not attributable to enlarged or additional facilities requested and paid for by the City, and the denomina- tor of which is 100% of the water service system construction costs (less those incremental costs for enlarged or additional facilities to be borne by the city). The maintenance bond(s) required by paragraph 7 above must be in place reflecting actual construction costs prior to the City's acceptance of any line or facility. 12. Relocation of Lines and Mains. The city agrees that PEG II, the Company and/or pfister shall be entitled to relocate the water mains and appurtenant facilities crossing the Project 7 e e e - - 9' ~:) (:-~.:2 ~5 ;~~~ 1 1/ ;. '5 / S' -.::: U:7;: 4::2 h:C":: '!.:54(i. UU F-_~;-; 730 804 SilvI2 O~'~lS. Pit!'~ln Ci-I"V Clerk. Doc s.()(~. Property, the Company Property, or Pfister's Properties, respec- 1:ively, at their sole expense; provided that the City shall approve all relocations in advance in writing in order to assure l:hat the relocated water mains, lines and/or appurtenant facili- 1:ies will operate properly as part of the City's water system; and further provided that the design, materials and construction of such relocated facilities shall be approved by the City prior to commencement of construction. city shall not unreasonably withhold said approvals. If any main lines, distribution lines or appurtenant facilities are relocated,the City will convey back to Pfister, the Company and/or PEG II the easements granted pursuant to this Agreement and pfister and/or PEG II will convey to the City new non-exclu~ive as-built easements meeting the requirements set forth in paragraph 13 below for the relocated water mains and appurtenant facilities, subject to the same terms and conditions set forth in that paragraph. 13. Easements. PEG II, the Company and/or pfister shall obtain at their own cost and convey in perpetuity to the City as- built non-exclusive easements for water mains, lines, tanks and other water facilities situated upon or crossing the project Property, the Company Property, or Pfister's Properties, along with all necessary access easements for maintenance and repair purposes ("easements"). The water main and water line easements must be large enough to provide the city with at' least 10 feet on either side of water mains and lines and must specify that (1) sewer lines must be located at least ten feet from any water main or line, and (2) other utilities must be located at least five feet away from any water main or line. Access easements and easements for tanks and other facilities shall be of a size determined by the city to be reasonably necessary for the opera- tion, maintenance, and repair of the tank or other facility to be located on such easement. Each party shall be solely responsible for any injuries or damages, including costs and attorney's fees, to persons or property arising from its own negligent acts or om- issions occurring on or resulting from its use or occupation of any easement premises. Nothing contained herein, however, shall mean or result in any waiver or diminishment of any defense or limitation available to City under the Colorado Governmental Immunity Act or other applicable law. The city shall reconvey to Pfister and/or PEG II all easements received by the City from Pfister and/or PEG II pursu- ant to the defunct water service agreement of July 9, 1990, as are no longer necessary to or utilized in the construction and installation of the water delivery system as described herein. 8 e e e . ~+~5'~J:::25,:: 11/1 ':':::;, ,-, -:;- os: 42 F,'i::- $.:::'..:],0. ce, 730 F'G 805 ._"'-. 311via Davls. Pitk:in Cntv Cle~'k. Doc ~.(='i_ MAINTENANCE AND REPAIRS OF LINES 14. Maintenance and Repair of Water Lines. To the extent reasonably possible, the future maintenance and use of the easements as provided for and described in this Agreement by the city shall not interfere with any lawful use of Pfister's Proper- i:ies, the Project, or the Project Property. The city acknow- ledges that PEG II plans to build a championship golf course on a portion of the project and the project property and that land- scaping is an important element to the operation of the golf course. The City, therefore, shall use its best efforts to maintain and/or restore the original contours of any disturbed golf course areas within 30 days of any installation, construc- 'tion or repair of the water mains or associated facilities. All repairs (other than emergency repairs) and maintenance of lines or facilities located on the golf course shall be limited to the fall or spring and, preferably, to times when the golf course is not open for use, and shall be undertaken in a manner to mini- mize, to the extent reasonably possible, disruption of the golf course. WATER SERVICE 15. Use of Water. The potable water to be delivered by the City pursuant to the terms of this Agreement may be used for all lawful purposes, including but not limited to in-house domestic uses, fire protection, swimming pools and the normal outside irrigation of trees, lawns and gardens, not to exceed 5,000 square feet per residential unit. All water use will be consis- tent with the city' Water Policy Resolution (Resolution No. 5 (as amended) (Series of 1993)) and water conservation ordinances. 16. Water Use on Golf Course. Notwithstanding the provi- sions of paragraph 15 above, PEG II agrees that the golf course will be irrigated with raw water only, provided, however, that in the event delivery of raw water to 'the golf course must be suspended due to unanticipated and/or unavoidable damage to the raw water delivery system serving the golf course, PEG II may use potable water for golf course irrigation on a temporary short- term emergency basis so long as: (1) the City is able to meet all of its other water service commitments at the time potable water is needed for such irrigation; (2) the physical connection between the potable water system and the irrigation system is approved by the City; (3) the use of the potable water system to irrigate the golf course is only made at such time and in such manner as approved by the city Water Department; (4) the service is metered and paid for at the current and applicable billing area rates; and (5) such potable water is used only for temporary emergency purposes in quantities no greater than needed to 9 e e e - . . H.~bj~5S 11 lS/93 08:42 Rec $34().O(~ B~; Silvia Gavi~. F'itklfl Crlty C~er'~:. Doc 730 PG 806 $.01) properly irrigate the golf course. Because potable water as provided for in this paragraph will only be delivered and uti- lized in extraordinary and infrequent circumstances, PEG II shall be required to pay only a nominal tap fee (1 ECU) for the tap connecting the irrigation system to the water system in addition t:o all normal hookup charges. Additionally, any water delivered under this paragraph will not be debited against the ECU or acre feet maximums set forth in paragraph 2 above. 17. ECU Computation. The parties understand and agree that 1:he 550 ECUs to be provided to the Project property and the 57 ECUs to be provided to the pfister property II were determined on the basis of the assumptions contained in Exhibit G attached hereto and that regardless of any subsequent amendment to the Code, those assumptions will be applied to determine the ECUs allocated to a particular structure or use under this Agreement; provided that in no event shall the Project Property or the pfister Property II be entitled to the delivery of more than 185 acre feet or 12 acre feet, respectively, of treated water per year. It is the intent of the parties hereto that the volume of water to be delivered to the Project Property and pfister Proper- ty II under the terms of this Agreement not be reduced by future amendments to the Code redefining or recalculating ECUs. 18. Dedication of Water Riqhts - Cash in Lieu. Pursuant to the City's Water policies, all extraterritorial extensions of water service are to be accompanied by a dedication or transfer of water rights from the water user to the city comparable to the water services to be delivered. Alternatively, a cash payment in lieu of the required water right may be accepted by the City in its discretion. PEG II and/or pfister own certain water rights appurtenant to the Project and/or Pfister Properties. The parties hereto agree that such water rights should be retained by PEG II and Pfister and utilized for raw water irrigation of the golf course and other Project areas. Therefore, and in lieu of the dedication or transfer of said water rights to the City, PEG II and Pfister shall make a cash payment to the City in the sum of $27,000, such sum to be paid upon the execution of this Agreement~ The parties agree and acknowledge that said cash payment is an adequate substitute for the water rights otherwise required to be transferred to the city for the potable water to be delivered by the City to the project, the Company property, and pfister Properties under the terms of this Agreement. 19. Tap Fee Computation. All tap fees for potable water service herein provided shall be assessed utilizing the city's prevailing applicable tap fee at the time of application for a building permit for the structure for which service is sought. No water service shall be provided to any structure absent 10 --Z,:]I) c:(' b~'.~ :. 5/S'~::' (J8: 42 R'-.A..,$.-.''-',:.' -, ,'. fj:'.'..,(~,3-2:::'8 11./ . '-"'--1-\1 ,'-lP-Y'c:.. uo_ :::. i lv' 1 a. 0 _? V l:=- ~ F'i -I: ~:: 1 II '..J I 1 - , --' -' 730 ~'. 00 f'f::, 807 e 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. 20. Service Line Meters. Each service line shall be me- tered in accordance with the code at the sole expense of PEG II or Pfister or their successors, as the case may be. 21. Limitations on Provision of Water Service. This Agreement is only for the supply of potable water service as herein described and no expansion of uses, connections, or water services beyond those set forth herein and in the addenda and exhibits hereto is in any ,way authorized by this Agreement. The city is not by this Agreement prejudging, certifying or guaran- teeing its ability to provide potable water service to any use or structure other than 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. e 22. Service sublect to citv Charter. Codes. Rules, Reoula- tions and policies. PEG II and pfister 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. PEG II and Pfister shall also be bound by, and all water service provided hereunder shall be subject to, all applicable rules, policies or regulations of the city now in effect or as may be hereafter adopted, except that to the extent such rules, policies or regulations conflict with this Agreement, the terms of this Agreement shall govern. 23. Responsibilitv for Payment of Water Rates. In no event shall PEG II or pfister be responsible for the payment of water rates for the delivery of water to property other than that property which they lease or to which they have title at the time of water delivery. 24. Rules Reoulatino Water Use. PEG II and pfister agree to adopt all provisions set forth herein as the rules and regula- tions governing the use of water on the Project, the project Property and Pfister's Properties and agree that this Agreement shall be recorded as covenants running with the land and shall be as fully enforceable on the Project property and Pfister's Properties as if the same were situated inside the City. PEG II and Pfister also agree to assist the City in every manner reason- ably possible to enforce City rules and regulations made to protect purity, safety and supply of the water delivered pursuant to this Agreement, including curtailment during times of short- age, elimination of any potential cross-connections, and the 11 e e e - . #3632SS 11!15j~3 08:4~_~",~~"C . ._ ~'it~~ln 1_ Silvl~ Dav~~, $340.0Cl 8~ :lerk. Doc 730 ~'\~ 808 s.!JO utilization of water conservation devices as set forth in the C~de. PEG II and Pfister also agree to prohibit all unnecessary or unreasonable waste of water on the property served pursuant to this Agreement and to make reasonable efforts to enforce such prohibition. The unreasonable or unnecessary waste of water shall be defined as set forth in the Code. 25. Source of Water Supply. The parties to this Agreement recognize that the water supply for the City is dependent upon sources from which the supply is variable in quantity and/or quality and beyond the reasonable control of the City. No liability shall attach to the City hereunder on account of any failure to accurately anticipate availability of water supply or because of an actual failure of water supply due to inadequate run-off, poor quality, or occurrence beyond the reasonable control of the city. 26. No Guaranty of Water Ouality. ouantity or Pressure. The City makes no promise or guarantee of pressure, quantity or quality of water supply for any purpose, including fire suppres- sion, except as specifically provided herein or as is required by applicable federal, state and local statutes and regulations. ~rhe 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 water furnished inside the city. 27. Property Riahts in Water. All water furnished under this Agreement is on a contractual basis for use on the Project Property or Pfister's Properties as described herein and all property rights to the water to be furnished hereunder are reserved to the City. Such water service does not include any right to make a succession of uses of such water and upon comple- tion of the primary use on the Project Property and/or pfister's Properties, all dominion over the water so leased reverts com- pletely to the City. Subject to the prohibition against waste and any other limitations on water use imposed herein, PEG II and Pfister have no obligation under this Agreement to create any particular volume of return flow from the water delivered hereun- der. PEG II and pfister agree to cooperate with the city in measuring and reporting return flows to the extent such measuring and reporting is required by the Colorado State Engineer or his agents. VIOLATIONS 28. Enforcement bv city. The parties to this Agreement recognize and agree that the City has the right to enforce its rules, policies, regulations, ordinances, and the terms of this 12 e e e ~!:~;:{i-32'~:",:::: 11 1:::, '=73 ()8: i+~2 et:;:,c ~.."340. 00 2.i< 730 :-:'c:; 809 Sllvia D2v:~. ?~tkin ::,ty C12r'~~. DCJC ~.[:)f~ Agreement by the disconnection of the supply of water provided hereunder. Additionally, in the event that PEG II, or Pfister, or any user who, has purchased or leased a portion of the Project, the Project p~operty, or the Pfister Properties, violate the rules, policies, regulations or ordinances of the city, the city shall have all remedies available to it at law or equity, or as provided in the Municipal Code of the city of Aspen. Should any person or entity violate the terms of this Agreement (other than by non-payment of water service charges), the city, except in cases of emergency as determined by the city, shall give prior "rritten notice to the violating party specifying 'the grounds upon which the City believes a default or violation has occurred. The violating party shall then have 30 days from the receipt of said written notice to cure the default or violation (except in cases of emergency); or in the alternative, if the default or violation by its nature cannot be cured within said 30 days, the violator shall initiate action to cure said default or violation within said 30 days and shall act with due diligence to complete the cure of said default or violation within a reasonable period of time thereafter. In all events the City shall be free from any liability arising out of the exercise of its rights under this paragraph. Notwithstanding the above, in no event shall a violation by any user who has purchased or leased a portion of the project and/or the project Property or pfister's Properties, as the case may be, provide a basis for the termination of this Agreement as the same relates to any other non-violating party or its property, nor shall said violation provide any basis for turning off or disconnecting the supply of water to any non- violating party or its property. TERMINATION 29. Termination bv Aqreement. Except as provided to the contrary herein, this Agreement shall only be terminated in writing by mutual agreement and the term of this Agreement shall continue until such termination. 30. Termination if Illeqal. The parties agree, intend and understand that the obligations imposed by this Agreement are only such as are consistent with state and federal law and the Aspen Municipal Code. The parties further agree that if any provision of this Agreement becomes in its performance inconsis- tent with the Code or state or federal law, or is declared invalid, the parties shall in good faith negotiate to modify the Agreement so as to make it consistent with the Code or state or federal law, and if, after a reasonable amount of time, their negotiations are unsuccessful, this Agreement shall terminate. 13 e e e - ~363258 11/ _ ~3 08:42 Pee $340.00 8~ 730 PG ~l@ :=;ll\/~,-,3. D,;?,"/l:::. ..:: _:kii~ Cnt'-,-' Cle~--k, Dce '~. ,,' WATER SERVICE TO ASPEN SKIING COMPANY FACILITY 31. Water Service to Restroom Facility. The parties ac- knowledge that the Aspen s1ding Company ("Company") wishes to have potable water service provided to a ticket office/restroom facility located at the base of the Buttermilk/Tiehack ski area on Lot 49 of the Project Property and that such service can be provided 'through the water transmission and distribution mains to be constructed pursuant to this Agreement. The City hereby agrees to provide potable water service under the terms of this paragraph to serve said ticket office/restroom facility for up to two (2) ECUs, which ECUs shall not be charged against the ECUs allocated to PEG II under .paragraph 2, or to Pfister under paragraph 3 of this Agreement. ECUs shall be assigned to the facility as provided by the Code.' 32. Aqreement bv Aspen Skiinq Companv. In consideration of the water service provided in paragraph 31 above, and by its signature on this Agreement, the Company, for itself, its succes- sors and assigns, agrees as follows: a. No potable water service shall be provided pursu- ant to paragraph 31 and this paragraph 32 unless and until the ,later service facilities to be constructed by PEG II and/or Pfister on the Project Property pursuant to this Agreement have been fully constructed and accepted by the City as provided in i:his Agreement; ,,,ill room Potable water provided pursuant to paragraph 31 only for indoor purposes at the ticket office/rest- and for no other purpose; b. be used facili ty c. The Company is bound by and shall comply with the provisions of paragraphs 19-22, 25, 26, 29, 30, 34-38, 41, and 43-45 of this Agreement as fully and completely as if it were identified along with pfister and/or PEG II in said paragraphs as a party bound thereby and subject thereto; d. The Company is and shall be responsible for the payment of all tap fees, hookup charges, and water rates for the delivery of City water to the facility situated on Lot 49; 'This structure shall be considered a "retail" and not a "commercial recreational" facility under Section 23-44(a) of the Code so long as it remains strictly a ticket office/restroom. 14 .. ."i.' a ., e U.-.5 b.".::.2 ='::::3 1 i. /15,' '7"~ '_':::: ~ 4:~~ S:f~C $':~:.,+u. 00 E~ 811 730 F'E, '3 1 1, '-~i~, -:::... D ,.3. \.'- ::. ':=. q ? :L . _ '. .. _. '::~,~-:- l DCJ/:: :5.0U e. The provisions of paragraphs 31 and 32, upon recording with the pitkin County Recorder, shall be covenants running with Lot 49 and shall be as fully enforceable on said property as if said property were situa~ed inside the City; f. The Company shall assist the City in every manner reasonably possible to enforce city ordinances, rules and regula- l:ions made to protect purity, safety and supply of the water delivered pursuant to paragraphs 31 and 32, including curtailment of water during times of shortage, elimination of any potential cross-connections, the utilization of water conservation devices, and prohibition of all unreasonable or unnecessary waste of water (as defined in the Code) an the property served pursuant to paragraphs 31 and 32; g. The Company agrees that all water furnished to it under paragraphs 31 and 32 is on a contractual basis only for use at the ticket office/restroom facility on Lot 49, that all property rights to the water so furnished are reserved to the city, that such water service does not include any right to make a succession of uses of such water, and, upon completion of the primary use at the ticket office/restroom facility, all dominion over the water so furnished reverts completely to the City; h. subject to the prohibition against waste and any other limitations on water use imposed herein, the Company has no obligation under this paragraph to create any particular volume of return flow from the water delivered hereunder, provided, however, that the Company shall 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; i. The Company acknowledges that the City has the right to enforce its rules, policies, regulations, ordinances, and the provisions of paragraphs 31 and 32 by disconnection of the supply of water provided to Company hereunder, and that if the Company violates any such rules, policies, regulations, or ordinances, the City shall have all remedies available to it at law or equity or as provided in the Municipal Code of the city of Aspen, provided, however, that, no violation by any water user who owns or leases any or all of the Project Property or the Pfister properties shall provide a basis for the termination of water service to the Company as provided for in paragraphs 31 and 32; j. The Company, upon the request of the City, and at the city's sole discretion, shall petition for and/or consent to annexation of Lot 49 to the city of Aspen at such time as deter- 15 e e 1 e #3632~8 11/15/93 ()8:42 Pee $34().<:J(1 S~. 730 F'G 812 SIlvia D6V15, Pitk:ii' Crltv Clerk. Doc S.l.)!., mined necessary by the City, and agrees that failure to commence and complete annexation proceedings as herein required shall authorize the city to commence and/or complete such annexaition on the Company's behalf, with all costs and fees associated there- with to be borne by the' Company. Such annexation shalll not divest or diminish land use approvals or development rights awarded by Pitkin County for Lot 49 as legally vested prior to the annexation of Lot 49 to the City. k. Paragraphs 31 and 32 of this Agreement shall be binding upon, and inure to the benefit of, the company, its successors and assigns, and may not be amended or assigned with- out the written consent of the City, which consent shall not be unreasonably withheld. Notwithstanding the foregoing provision, the Company may collaterally assign its rights and interest under this Agreement, in whole but not in part, to any lenders as part of a secured financing or refinancing by the Company. After delivery of notice to the City of any such collateral assignment, o;uch lenders and their assigns shall have a right to written notice of default and the right, but not the obligation, to have a reasonable opportunity to cure any default of the Company. If any such lenders or their assigns shall succeed to the company's interests under this Agreement, such lenders or their assigns shall assume the burdens and obligations of the Company as of the date such lenders or assigns acquire title to any property covered under this Agreement. GENERAL PROVISIONS 33. Annexation. Upon the request of the city, and at its sole discretion, PEG II and/or pfister, or their successors in interest, shall petition for and/or consent to the annexation of the Project and Project Property and/or the pfister Properties, respectively, or those portions thereof as deemed appropriate by the City, to the City of Aspen at such time(s) as determined necessary by the city. Such annexation(s) shall not divest or diminish the land use approvals or development righi:s awarded by pitkin County for the project or Project Property, or the Pfister Properties, as legally vested on behalf of PEG II or pfister, or their successors, prior to the annexation of the subject property to the City. Land use approvals or development rights not vested in accordance to law prior to the annexation shall be subject to the terms, conditions and regulations of the Aspen Municipal Code upon annexation. The failure of PEG II or Pfister or their successors in interest to commence and complete annexation proceedings for their respective properties as herein required shall constitute a material breach of this Agreement authorizing the City to terminate same as it relates to the defaulting party. Alternatively, a failure of PEG II, Pfister, or their successors 16 e '. i. I I 4) - - #363258 11/15/93 08:42 Rec $340.00 BK 730 PG 813 Silvia Davis, Pitkin Cnty Clerk. Doc $.01) in interest to commence and complete annexation for i:heir respec- tive properties as herein required shall authorize the city to commence and/or complete such annexation on their behalf, in ,,'hich event the City shall charge, and ,PEG II, pfister and/or their successors shall pay, all costs and fees associated with s;uch annexation of their respective properties. 34. No Public Utilitv status. The parties agree that by t:his Agreement the city does not become a public utility com- pelled to serve other parties similarly situated. Pfister and PEG II agree that neither they nor their successors or assignees ~,hall at any time petition the colorado Public utilities commiss- ion to acquire jurisdiction over any water ra'te set by the city. ~Che parties agree that in the event the City is held to be a public utility by virtue of the Agreement, the Agreement shall terminate and be of no further force or effect. 35. No Waiver. Failure of a party hereto to exercise any Light 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. 36. Notices. All notices hereunder shall be given ih writing by mail at the following appropriate address of the party, postage prepaid: citv of Aspen c/o City Manager 130 South Galena Street Aspen, Colorado 81611 cc: CityAttorney 130 South Galena Street Aspen, Colorado 81611 PEG II Pearce Equities Group II Limited Liability company c/o Andrew V. Hecht, Esq. Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 cc: Kirk B. Holleyman, Esq. 730 17th Street, Suite 730 Denver, Colorado 80202 17 e ie I 1 Ie #363258 11/15/93 08:42 Re~ $340.00 B~( 730 PG 814 Silvia Davis, Pitkin Cnty Clerk, Doc $.00 Arthur O. Pfister and Elizabeth H. Pfister Arthur O. Pfister P.O. Box EE Aspen, Colorado 81612 cc: Kirk B. Holleyman, Esq. 730 17th street, suite 730 Denver, Colorado 80202 Andrew V. Hecht, Esq. Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 9EP Residence Trust ),ndrew V. Hecht, Esq., Trustee Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 ~DP Residence Trust Andrew V. Hecht, Esq., Trustee Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 81611 The Company The Aspen Skiing company c/o General Manager P.O. Box 1248 Aspen, Colorado 81612 cc: Arthur B. Ferguson, Jr., Esq. Holland & Hart 600 East Main Street Aspen, Colorado 81611 37. Force Maleure. 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 the party. 38. Severability. 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. 18 Sllvia D6 -. $34Cl.OO S~~: :~ ~ i:)8:4~ ~ec =~1:~:ln Cntv Cler'k, Doc 730 F'G 815 4363258 11.' $.00 e 39. Amendments - Assiqnments. Neither this Agreement, nor the right to receive water service hereunder, may be amended or assigned without the written consent of the parties hereto. Consent to amendments shall not be unreasonably withheld so long as any proposed amendment does not substantially increase the level of water service (total acre feet) or ECU limit as provided for in the Agreement. The city must approve in writing any assignment of part or all of the rights of Pfister or PEG II hereunder, and shall have the right to fully investigate any assignee, and may decline to approve any assignment in its reasonable discretion. Any transfer of ownership or control of PEG II which results in majority control or ownership passing to anyone other than James T. Pearce, Jr. (member of PEG II), or an entity not wholly owned and controlled by James T. Pearce, Jr., shall be deemed an assignment subject to this paragraph. PEG II or Pfister may collaterally assign its rights and interest under this Agreement, in whole but not in part, to any lenders as part of a secured financing or refinancing by PEG II or Pfister, respectively. After delivery of notice to the city of any such collateral assignment, such lenders and their assigns shall have a right to written notice of default and the right, but not the obligation, to have a reasonable opportunity to cure any default by PEG II or Pfister, as the case may be. If any such lenders or their assigns shall succeed to PEG II or Pfister's interest under this Agreement, such lenders or their assigns shall assume the burdens and obligations of PEG II or Pfister, as the case may be, as of the date such lenders or assigns acquire title to any property covered under this Agreement. Any consent to a previous assignment or amendment shall not be deemed as a consent to any subsequent assignment or amendment. Furthermore, any attempted assignment by Pfister or PEG II, or any assignee or successor of either, in violation of this paragraph shall render the Agreement void. 40. Total Aoreement. Except as otherwise provided for herein, this Agreement, including its addenda and exhibits, supersedes and controls all prior written and oral agreements and representations of the parties and is the total integrated agreement among the parties governing the matters as provided for herein. 41. 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 a conflict, the terms and conditions of the numbered paragraphs shall govern. e 42. Bindino Aoreement - Recordinq. This Agreement is binding upon the parties hereto, their successors and assigns, 19 e e #~:,S:?:25EJ 1 ~ / 1 =: / C;:'3 Of:::: 42 F\eci<:~'.40. 00 B~" 730 PI.3 816 Silv12 Davis. Plt~(in Cnty Cler'k, Doc ~.()() and any sale of the Project and the Project Property or Pfister Properties shall be subject to this Agreement as provided herein. This Agreement (absent the exhibits)3 shall be promptly recorded at PEG II's cost by the City and shall constitute a covenant running with the Project, the project Property, and the Pfister Properties as described in Addenda nAn, nB" and "CD, respec- tively, for both the burdens and benefits of each. 43. Applicable Law - Venue - Attorney's Fees. This Agree- ment and the rights and obligations of the parties hereto shall be interpreted and construed in accordance with the laws of the state of Colorado. Venue for all actions arising under the Agreement shall be in Pitkin County. In the event of litigation, the court shall award the prevailing party reasonable attorneys' fees, expert witness fees, and costs incurred by such party in any action enforcing the terms of this Agreement. 44. Authorized Sianatures. By signing this Agreement the parties acknowledge and represent to one another that all proce- dures 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. 45. 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. IN WITNESS WHEREOF, the parties hereto set their hands on t:he day and y.ear above first written. THE CITY OF ASPEN, COLORADO A Municipal Corporation By: Joh ~. (3~~ Bennett, Mayor ATTEST: ;0 Koch, City Clerk 3The exhibits to the Agreement being lengthy, illustrative and technical in nature, the parties agree that they not be recorded along with the Agreement. 20 e . ..-- #3,::..3258 11;' -; ~ j C'-O: ,- '':::'" ,. '-', r-, . ~ _ - ~---,f!.' ,)... -".." ~pc $-4{1 (-J- B'- 730 Silvia DavIs. pZ.::~~ '~n~_:= :_~l"_~r.:,...-.l) -~. ~'G ~ ~ ,- Doc $. 00 APPROVED AS TO FORM: ~~Vl. Edward M. Caswall, Esq. City Attorney i',PPROVED AS TO FORM: wll~ Kir . oIleyman, Es . Hawley & VanderWerf, P.C. 1,PPROVED AS TO FORM: ~~ Andrew V. Hecht, Esq. Garfield & Hecht, P.C. 817 PEARCE EQUITIES GROUP II LIMITED LIABILITY COMPANY A Utah Limited Liability Com- pany B.?J 7~< Z/ Y'J~es T. Pearce, ~r. I'~ c......,~JC!l-l ArA e......,M .(Se.Il:- ARTHUR O. PFISTER AND ELIZABETH ~. PFISTER rt. (12.\l.P.) l2dlJVC 0 (Pit ;/t::- Arthur o. Pf~er '- ~~K f/-, /lw-G; Eli eth H. pfister! 21 . e . #363258 11/15/9? O~:4?~~~C '-1 . ~ l)_,_..~ ,- F'l-l-l-:"ln '.....1,.-"; '::J 1 '-/1.:::'. l C'." .t. ~ . - . $540.00 f!.f, 730 C:;let".'k.~ DDC $.00' F'G 818 J(jROVED AS T I Arthur B. Holland & ORM: SEP RESIDENCE TRUST A Colorado Trust ~ --~ - ,~.,.~~ By:'---' ~ Andrew V. Hecht, Trustee CDP RESIDENCE TRUST A Colorado Trust By:_ Andrew V. .d;;..-'- -............----- Hecht, Trustee ASPEN SKIING COMPANY, a Colorado general partnership By: MKDG III/MKDG IV PARTNERSHIP, a Colorado general partnership, General Partner By: MKDG III ASPEN, INC., a Delaware corporation, General Partner By: 22 EXHIBIT A ACCESSORY USE or ACCESSORY STRUCTURE means A use or structure that is naturally and normally incidental to, subordinate to, and devoted primarily to the principal use or structure of the premises; does not change the basic character of the premises, as determined by its principal use or structure; is subordinate in area,extent and purpose to the principal use or structure served;contributes to the comfort, convenience or necessity of the occupants of the principal use or structure served; and is located on the same lot or contiguous lots under the same ownership as the principal use or structure. In no event shall an accessory use be construed to authorize a use not otherwise permitted in the zone district in which the principal use is located, and in no event shall an accessory use or structure be established prior to the principal use or structure to which it is accessory. Accessory buildings or structures shall not be provided with kitchen or bath facilities sufficient to render them suitable for permanent residential occupation. BASEMENT means that portion of a structure fifty percent(50%) or more of which is below natural g rade. BUILDV4G HEIGHT means the maximum distance allowed; based on the following criteria: a. On Pitched Roofs: . • 1) There shall be no mid-point of a roof which exceeds the prescribed height above existing grade, whichever is lower. The mid-point of the roof shall be defined as that point which is. halfway between the top of the ridge, and the cave-point. The eave-point is that point in the roof plane which is directly above the outside of the wall below. In the case of a covered deck or patio, the eave-point shall be that point which is directly above the outside face of the structure, or three-,, feet(3') in from the edge of the roof, whichever is more.restrictive. 2) There shall be no point of any ridge or other roof peak, which exceeds the prescribed height above the existing or finished grade, whichever is lower, by more than five feet (T). 3) There shall be no eave-point which exceeds the prescribed height above existing or . finished grade, whichever is lower. Exception to this is if the ridge lines which extend to the outside face of.a building to form a gabled end will be permitted, to the extent that they conform to (2) above. b. On Flat Roofs: There shall be no point of a flat roof which exceeds the prescribed height above the existing or finished grade, whichever is lower. C. All roofs within a multi-roof building shall conform to these standards. IIIII HIM IIIII III1111111111111III IIIII IIII IIII 404428 08/18/1997 10:36A ORDINANCE 3 of 14 R 71.00 D 0.00 N 0.00 PITKIN COUNTY CLERK d. All measurements shall be made vertically; i.e., that each point of a roof shall be measured to the point of grade which is directly below it— vertical and plumb. Roof points which are not at the exterior of the building will be measured against existing grade only. e. Antennae, chimneys,flues, vents, and similar structures shall not exceed the prescribed height limit by more than ten feet(10�. f. Water towers, mechanical equipment, solar equipment, and similar equipment shall not exceed the prescribed height limit by more than three feet (3'). g. In no event shall any structure, including antennae, chimneys, flues, vents, water towers, mechanical equipment, solar equipment, and similar structures exceed thirty-eight feet (38') above existing or finished grade,whichever is lower. h. For the purpose of measuring building height, any individual building component that is located within twenty (20) feet(as measured from any point from outside wall to outside wail) of the principal structure shall be considered a pan of the principal structure. FLOOR AREA means the sum of the gross horizontal surfaces of each floor of a building or structure. In calculating floor area, the following Hiles apply: a. General: In measuring floor area, all dimensions shall be taken from the outside face . of framing or other primwy wail members or from the center line of wails separating adjoining units of a building or portion thereof. Veneer facades up to eight inches in thickness shall be excluded from the calculation of floor area; that portion of a facade which exceeds eight inches shall be included. Fireplaces, elevators, stairs and similar features are included in the floor area on each floor. b. Roof overhangs and decks: The floor area of a building, or portion thereof, not provided with surrounding exterior walls shall include the area under the horizontal projection of roofs or floors, when the roof or floor eiceeds five (5) feet. These architectural projections are exempt for five (5) feet-of the perimeter of each story of the structure. Architectural projections may project up to ten (10) feet and still be exempt, so long as the total perimeter space for a floor is less than or equal to the total area allowed for the five (5) foot exemption. This exemption cannot be used to transfer space between floors. C. Decks, balconies,stairways and similar features: Structures that exceed thirry (30) inches above natural or finished grade, and that are not covered by a roof or architectural projection from a building, are exempt from floor area for up to fifteen percent(15%) of the maximum floor area allowed. Any areas in excess of fifteen percent(15%) shall be counted toward floor area. I III11111111 HIM IIIII 111111111111111111111111111111 IN 404428 08/18/1997 10:86A ORDINANCE 6 of 14 R 71.00 D 0.00 N 0.00 PITKIN COUNTY CLERK • d. Spaces below natural grade for principal single family and duplex residences: Spaces below natural grade, up to a maximum of twenty (20) feet in depth and which include no more than a single story, are exempt from floor area calculation up to a maximum of 4,000 square feet of floor area. Floor area below natural grade which exceeds the 4,000 square foot exemption provided herein shall count toward the calculation of allowable floor area If any pan of the below grade space is exposed above natural grade (such as walk-out basements, walls or courts) the entire below grade area shall be included in the floor area calculation; except that window wells and one egress area as required by the Uniform Building Code may be provided without affecting this exemption.The foundation wall or footing may be exposed to the minimum degree required to comply with the Uniform Building Code pertaining to foundation design without affecting this exemption. Up to ten (10) percent of any particular below ,grade wall surface may extend above natural grade and still be exempt from the calculation of floor area so long as the finished grade covers the surface that would otherwise be exposed. Garages up to seven hundred fifty (750) square feet may be incorporated into below grade space and shall not affect this exemption so long as the only sections of building so exposed are directly related to the garage structure. e. Garages and carports: For the purpose of calculating floor area ratio and allowable floor area for a lot where the principal use is a single family residence, garage and carport floor area shall be exempted up to a maximum of seven hundred fifty (750) square feet. On a lot which contains a duplex, garage and carport floor area shall be exempted up to a maximum of five hundred (500) square feet per side. All garage or carport space in excess of the exempted areas shall.be included as pan of the residential floor area calculation. When a single family or duplex dwelling exceeds the allowed floor area, the exempt garage space shall be reduced by - subtracting the excess floor area from the exempt garage space. f. . Crawl space: Crawl.spaces shall be exempt from the calculation of floor area. even if exposed above natural grade, so long as the height of the crawl space does not exceed five feet six inches (5'6"). g. . Attic space: That portion of attic space where the distance between the floor and ceiling exceeds five feet six inches (5'6") in height shall count as floor area. h. AR-1 Zone District: For the purpose of calculating floor area ratios for non- residential structures in the AR-I Zone District, subgrade space shall be excluded from the floor area calculations when such subgrade space is accessory to and subordinate to the principal use of the building and used for subordinate, secondary purposes. Such exempted subgrade space shall include areas used for mechanical, electrical or heating facilities; utility space; • parking garages; required employee housing units meeting Uniform Building Code requirements for ' subgrade space; kitchens and employee recreation rooms; meeting rooms, auditorium,banquet rooms, convention space,banquet preparation IIII IN 404428 08/13/1997 10:38R ORDINRNCE, 7 of 14 R 71.00 D 0.00 N 0.00 PITKIN COUNTY CLERK and kitchen area; recreational amenities including but not limited to pools, health clubs, exercise • rooms, steamrooms, saunas, massage rooms, showers; linen storage rooms, maid service areas, laundries; guest storage; storage for condominium unit owners;ski lockers; loading and unloading docks, service elevators, trash storage,maintenance area and storage; and circulation corridors and elevator areas for the foregoing. All other uses located subgrade may be exempted from floor area calculations upon the special review recommendations of the Planning and Zoning Commission-and approval of the Board if they frid the use to be accessory and subordinate to the principal use. Review criteria to be used in determining if a use is accessory and subordinate to the principal use are as follows: 1) potential impacts generated by the use; 2) the amount of floor area involved,including the amount of space above grade to be made available for the principal use if the space is exempted; 3) consideration of whether the use will be used primarily by occupants or residents of the project or other persons in the community. Above grade balconies and decks constructed in the AR-1 Zone District, including those covered by a roof or floor above, shall be excluded from floor area calculations when the area of such balconies and decks is less than or • equal to fifteen percent(15%) of the allowed floor area: all area of above grade decks and balconies over fifteen percent (15%) of the allowed floor area shall be included in the floor area. SETBACK means an open space it grade between a structure and the property line of the lot on which the structure is located. The setback shall be unoccupied and unobstructed from the ground upward, except for fences or as otherwise provided in this chapter. In measuring a setback, the horizontal distance between the lot line and the closest projection of the principal or accessory building shall be used STRUCTURE means anything constructed, installed, or portable, which requires location on the ground. It includes yurts and tepees and movable buildings which can be used for housing, business, commercial, agricultural, or office purposes, either temporarily or permanently. "Structure" also includes roads, walkways, paths, fences, swimming pools, tennis courts, signs, sheds, and other accessory construction. "Structures" do not include fences or walls used as fences less than six feet (6) in.height; poles, lines,cables, or other transmission or distribution facilities of public utilities; bus shelters less than 200 square feet in size. YARD means an open space which is unoccupied and unobstructed from the ground skyward, except as otherwise provided below: — — — 1111111111111111 HIM 111111111111111111111111111111111111111111111 404428 05/13/1997 8 of 14 R 71.00 D 0.00 N 0.00 PITKIN COUNTY CLERK t a. Projections into required yards. Yards shall be unobstructed from the ground to the • sky except for the following: 1) Uncovered porches, slabs,patios, terraces, walks, steps, retaining walls and similar structures, which do not exceed thirty inches (30") above or below natural grade —No restriction; . 2) Fences, hedges, berms and walls less than six feet(6) in height are permitted within yard setbacks, except on comer tots where no fence, retaining wall,hedge,berm, or similar obstruction shall be erected or maintained which obstructs traffic vision; nor on comer lots shall any fence, retaining wall, hedge, berm, or similar structure be erected or maintained which exceeds a height of furry-two inches (42") measured from street grade within twenty feet(20') of the comer. YARD,FRONT means a yard extending the full width of the lot, the depth of which is _ measured as the least horizontal distance between any point on the front lot line and point of the . structure or use (such distance being referred to as the "front yard setback"). YARD,REAR means a yard extending the full width of the lot, the depth of which is measured as the least horizontal distance between any point on the rear lot line and point of the structure or use (such distance being referred to as the "rear yard setback"). In the event of a triangular lot, the.owner shall designate one line as the side and one as the rear lot line. - YARD, SIDE means a yard extending the length of the lot between the front and rear yard • setbacks (or lot line in the absense of yard requirements), the width of which is measured as the least horizontal distance between any point of the structureor use (such distance being referred to as the "side yard setback"). In the event of a triangular lot, the owner shall designate one line as the side and the other as the rear lot line. (Ord. 95=6 §§ 8, 11-13, 1995; Ord. 94-16 § 14) 11111111111111111 HIM IIIII III 1111111111111 III HIM IN IN 414428 05/18/1997 10:56A ORDINANCE 9 of 14 R 71.00 D 0.00 N 0.00 PITKIN COUNTY CLERK • Exhibit A • 93 E E y �n 6 E� e U « e Yp ZZ Z :• � y y N • Y _ q - I V ✓ vI - Y J _ I ( 4.cr I an ea Z I� —ro L o =mm �a)m .f.. u �K e _1049 c --7.Oj. < 2 8 Nd v f r P C n r w a � �•• c �. . � O I• � — — � A O f f e O - 2 = Z y • Q N Y c U < 4 G. - t \ u C I 1 I Yp 2z r n L = y = I I W1 au o V IY IL Z IL _zm i L � ' O � f0 m I e < m_ a =mm j c ° ZSc V S�� _ O m O m —cc = a 0 —SO u % L c N N i. M Ir c c C coc =1, = i . 331 33oc Z C ZjZ � '� C �� C zIC CIS 1 1 i j j i I j I C 1. em Gal tl I F Ld _ I I j - 1 CWF CC K B Q. =mmto . --mml m aolx �j Zivi v v u c°il :a ,ul uju ujZS Zjv ' �tor 99 p i s c c — Ix — ivy n Q NIS — n N WIC Inl.m ��.a+ N C r! u'I C. 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