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Home My WebLink Aboutbocc.ord.018.1998AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING THE CHAIRMAN TO EXECUTE THE NECESSARY DOCUMENTS FOR A WATER LEASE AND AGREEMENT BETWEEN PITKIN COUNTY AND JAMES HUNTING ORDINANCE #98� /} 1. Pitkin County (the "County") is the owner of certain real property known as the Northstar Preserve. Along with the property, Pitkin County acquired all water rights historically associated with the real properly which includes diversions from the U.S. Green Ditch and J.H. Smith Ditch 2. James Hunting ("Hunting") is a property owner in the adjoining Preserve Subdivision who desires to lease from the County a certain portion of the County's water rights to construct ponds and other surface water amenities. The water from the U.S.Green Ditch. 3. Aspen Center for Environmental Studies ("ACES") provides day to day management of the Northstar Preserve property for the County and has determined that active surface irrigation should not occur within the Preserve and instead allows the high water table to water the vegetation to create a more natural ecosystem on the property. 4. The County owned one-third (1/3) undivided interest to 3.0 cfs in the Green Ditch was adjudicated in 1949 and is currently not being used by the County. The decreed use for this water right is for domestic purposes. It is in the County's best interest to execute the lease to put this water to an acceptable use. 5. The lease shall be for twenty years (20) with a twenty (20) year renewal with a Zpayment of $500.00 per year. 6. The County and Hunting have agreed to the terms and conditions of the Water Lease and Agreement in Exhibit A attached hereto. NOW THEREFORE, be it ordained by the Board of County Commissioners of Pitkin County, Colorado that the Board of County Commissioners does hereby authorize the Chair to execute the Water Lease and Agreement attached hereto as Exhibit A and other such documents as may be necessary subject to approval by the County Attorney's Office. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 22ND DAY OF APRIL, 1998. NOTICE OF PUBLIC HEARING PUBLISHED IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 25TH DAY OF APRIL, 1998. 1111111111111111111111 1111'11 111 1111111 III 111'1 IIII IIII 429731 04/09/1999 12:27P ORDINRNC DAVIS SILVI I of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO Ordinance #98- (� Page 2 APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 13TH DAY OF MAY, 1998. PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE �=� DAY OF �,1998. ATTEST: APPROVED AS TO FORM: John Ely County Att y 1/ord/ BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO fo /ssi L,fi s: Dorothea Farris Chairman Date: S ao( y� I IIIIII IIIII IIIIII IIII IIIIIII III IIIIIII 111 11111 IN IIII 429731 04/09/1999 12:27P ORDINANC DAVIS SILVI 2 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO (11111111111111111 1111 Illlli� 111 IIlIIli 111 !Illi lul It1i 429730 04/09/1999 12:24P AGREEMEN DAVIS SILVI APPROVED BY 1 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO ORDINANCE CONTRACT # , n _ I g. WATER LEASE AND AGREEMENT THIS WATER LEASE AND AGREEMENT (hereinafter "Agreement") is made and entered into this A�—-day of iYt /4 Y , 1998, by and between THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PITKIN, COLORADO (hereinafter "Lessor"), and JAMES HUNTING (hereinafter "Lessee"); WITNESSETH: WHEREAS, Lessor is the owner of a quantity of water as more particularly descrihed and decreed in Case No. 4033, District Court in and for Water Division No. 5, State of Colorado; and WHEREAS, Lessee desires to lease from Lessor for a twenty (20) year term, The _delivery of one (1) acre-foot of adjudicated consumptive use water pursuant to the terms set forth -herein; and WHEREAS, the parties desire by this Agreement to set forth the terms .and.conditions of the lease of said water. ' NOW, THEREFORE, for the in consideration of the mutual promises and covenants contained herein, the adequacy and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Quantity and Term of Lease. Lessor hereby leases to Lessee, pursuant to the terms of this Agreement, that quantity of water representing 1.0 acre-foot of transferable historic consumptive use water per year derived from Lessor's undivided one-third (1/3) interest of three (3) c.f.s. from the U.S. Green Ditch, Priority Number 579 water right decreed on October 24, 1952 in Civil Action 4033, Garfield County, District Court, with an appropriation.date of June 1, 1948, and made available by virtue of the Lessor's dry -up of a portion of approximately six (6) irrigated acres, on the North Star Nature Conservancy Preserve, (hereinafter referred to -as the "Leased Water"). The terms of this Lease shall commence upon execution of this Agreement and shall continue for twenty (20) years. Upon expiration of the initial twenty (20) year Lease period, this Lease shall automatically renew for an additional twenty (20) year period, unless Lessee is in default of this Agreement. 2. Annual Payment. An annual payment shall be due for each annual period, which shall commence thirty days after full execution of this Lease Agreement. Lessee shall make payment to Lessor annually in the amount of $500.00 to be adjusted by the Annual Payment Increase as specifically described in Paragraph 4 of this Agreement. The first payment of $500.00 shall be due upon execution of this Agreement, receipt of w1iich is hereby acknowledged. Thereafter, annual payments shall be due on the anniversary date of the commencement date of the execution of this Agreement. �I"IIIt�lll�lllll{�"llll'll"'IIII"IIII"1"IIIIII'I 429731 04/09/1999 12:27P ORDINANC DAVIS SILVI 3 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO 11111111111111111111111111111111 1111111 iii HIM 1111 IN 429730 04/09/1999 12:24P AGREEMEN DAVIS SILVI 2 of 6 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO 3. Annual Payment Increase. Beginning with the payment due an the next anniversary date thereof, and each anniversary date thereafter, the amount of each annual payment shall increase by an amount equal to the preceding annual charge multiplied by the most recently published Denver/Boulder Consumer Price Index ("All Items" category)(hereinafter "Price Index") for the immediately preceding year. The following formula shall be used for determining the adjustment, if any, in the annual lease payments: a• "Price Index" for the December immediately preceding the adjustment Current Index Number = date Base Index Number "Price Index" for Decemberin the year preceding the year utilized in the numerator b. As promptly as practicable after the commencement of the ftrstadj stment year, and thereafter as promptly as practicable after the first day of each tt_reeding -adjustment year, Lessor shall compute the increase, if any, in the cost of living for the year immediately preceding said adjustment year. Such computation shall be made by use of current and base index numbers provided for each adjustment year as set forth in Paragraph (a) above. C. In computing increases for each adjustment year, the currentindexnumher shall be divided by the base index number. From the quotient thereof, there shall be subtracted the integer one (1) and any resulting positive number shall be deemed to be the percentage of increase of cost of living. d. The percentage of increase in the cost of living shall be multiplied by the minimum annual rental, including increases for the year preceding the adjustment year for which the increase is being computed. e. The Lessor shall, within a reasonable period of time after obtaining the appropriate data necessary for computing such increases, give the Lessee notice of any increase so determined. Lessee shall, within sixty (60) days after the receiving of such notice, notify the Lessor of any claimed error in the ralculations, and Lessor shall make such adjustments as he deems appropriate. However, nothing herein shall be construed to extend the time as provided in-Pamgraph 2, above, when lease payments are due and payable by Lessee. If publication of the pertinent Consumer Price Index shall be discontinued, the parties hereto shall thereafter accept comparable statistics on the cost of living for the average of all U.S. cities, "All Items" category, as the same shall be computed 11111111111111111111111111111111111111111111111111111 421731 04/09/1999 12:27P ORDINANC DAVIS SILVI 4 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO 11111111111111111111111111111111i IM 111111111011111 429730 04/09/1999 12:24P AGREEMEN DAVIS SILVI 3 of 6 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO and published by an agency of the United States or by a responsible financial periodical of recognized authority then to be selected by the partiesliereto. In the event of: (1) use of comparable statistics in place of the Consumer Price Index as above mentioned, or (2) publication of the Index figures at other than hi monthly intervals, there shall be made in the method of computation above provided revision as the circumstances may require to carry out the intent of this paragraph. 4. Use of Water by Lessee. Lessee shall be primarily responsible for securing all necessary judicial or administrative approvals required to permit use of the Leased Water in the manner desired by Lessee. Lessor shall not object to any Water Court or administrative proceeding undertaken by Lessee to enable Lessee to utilize the leased water. Lessor shall reasonably cooperate with Lessee in the provision of documents or other exhibits within Lessor's control or dominion that may be required by Lessee in any such proceeding. Lessor -makes no warrantees concerning the suitability of the leased water for the Lessee's proposed purposes. 5. Terms and Conditions of Delivery. Lessee acknowledges that Lessee's use of the Leased Water is subject to the terms and conditions of the decree entered in Case No. 4033, and Lessee agrees to comply with all such terms and conditions. Lessor covenants to pay all assessments and to maintain in good standing the undivided one-third (1/3) interest of three (3) c.f.s. from U.S. Green Ditch from which the subject consumptive use water is derived, .and shall comply with all terms and conditions of the decree. 6. Assignment of Lease. Lessee acknowledges that Lessee's interest in this Agreement may not be subleased or assigned without approval of the Lessor, if the Leased Water will be utilized for a different purpose by the Sublessee or Assignee. The Lessor's approval will not be unreasonably withheld in this regard. Lessee is free to sublease or assign Lessee's interest in this Agreement if the Leased Water will be utilized for the same purpose by the Sublessee or Assignee. 7. Attorney Fees. In the event of litigation to enforce any of the terms or conditions of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs. 8. Notices. All notices required under this Agreement shall be in writingandshall be hand delivered or sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses of the parties herein set forth. All notices so given shall be considered effective seventy-two (72) hours after deposit in the United States Mail with the properaddress as set forth below. Either party by notice so given may change the address to which -future notices shall be sent. Notice to Lessor: Pitkin County Office of the County Commissioners 530 E. Main Street Aspen, CO 81611 1111111111111111111111111111111111111111111111111111111 429731 04/09/1999 12:27P ORDINANC DAVIS SILVI 5 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO 111111111111111111 fill,11111111111111111 Ill 111111111 IIII 429730 04/09/1999 12:24P AGREEMEN DAVIS SILVI 4 of 6 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO With copy to: John Ely, Esq. Pitkin County Attorney 530 E. Main Street Aspen, CO 81611 Notice to Lessee: James Hunting 44125 E. Highway 82 Aspen, CO 81611 With Copy to: Kevin L. Patrick, Esq. Patrick & Stowell, P.C. 205 South Mill Street, Suite 300 Aspen, CO 81611 9. Construction of Language. The language used in this Agreement, and.all parts thereof, shall be construed as a whole according to its plain meaning, and not strictly for or against any party. All parities have equally participated in the preparation of this Agreement. 10. Section Headings. The section or paragraph headings contained within this Agreement are inserted for convenience only and shall not be construed to vary or add to the meaning of the Agreement. 11. Severability. If any covenant, term, condition or provision contain din this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such covenant, term, condition or provision shall be severed or modified to the extent necessary to make it enforceable, and the resulting Agreement shall remain in full force and effect. 12. Complete Agreement. This document embodies the entire and complete agreement of the parties on the subject matter herein. No promise or undertaking has been made by any party, and no understanding exists with respect to the transaction contemplated, except as expressly set forth herein. All prior and contemporaneous negotiations and understandings between the parties are integrated and merged into this Agreement. 13. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, devisees, executors, administrators, assignees, transferees, and successors in interest. 14. Governing Law. This Agreement shall be governed by the laws of Colorado, which state shall also be deemed the place where this Agreement was entered into and the place of performance and transaction of business of the parties. In the event of litigation .pertaining to 4 111111111111111111111111111111111111111111111111111 IIII 429731 04/09/1999 12:27P ORDINANC DAVIS SILVI 6 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO IIIIII IIIII IIIIII IIII IIIIIII III 1111111 III IIIII IIII ME 429730 04/0911999 12:24P AGREEMEN DAVIS SILVI 5 of 6 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO this Agreement, the exclusive forum, venue, and place of jurisdiction shall also be Colorado, unless otherwise designated in writing by the parties. 15. Authority. Each person executing this Agreement represents and warrants that he or she has been duly authorized by one of the parties to execute this Agreement andhas-authority to bind said party to the terms and conditions hereof. WHEREFORE, the parties have executed this Water Lease and Agreement on the day and year first written above. STATE OF ) ss. COUNTY OF ) BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By: x APPROVED BY BOCC ON .-5� -/3 — 9a' The foregoing instrument as acknowledged before me s —day of �, 1998, by as behalf of Pitkin County, Colorado. Witness my hand and official seal. My commission expires: 5 111111111111111111 Iiia 1111111111111111111111111 IN 1111 Y29o39 R40.003D 0.00 N70.00DINANC PITKINDAVIS COUNTYICOI on 429730 04/09/1999 12:24P AGREEMEN DAVIS SILVI 6 of 6 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO STATE OF COUNTY OF The foregoing lulu , JAMES HUNTING By: Zzl"-Z" srl ' - James Hunting fi ) ss. instrument was acknowledged before me thisl7 day of 1998 by James Hunting. sWitness my hand and official seal. e'o ; ".issidn expires: 2b ..'r boa 3461eas.01 G' Nt Pbli 111111111111111111111111111111111111111 III 11111 IN 1111 429731 04/09/1999 12:27P ORDINANC DAVIS SILVI 8 of 8 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO