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HomeMy WebLinkAbout 15-32 Approving Little Thompson IGARESOLUTION NO. l7 J A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND THE LITTLE THOMPSON WATER DISTRICT WHEREAS, the Little Thompson Water District (the "District") owns, maintains and operates a system for the treatment of water and the storage, transportation and distribution of potable water within Larimer, Boulder, and Weld Counties; and WHEREAS, the Town owns, maintains and operates a system for the storage and distribution of potable water to the inhabitants of the Town; and WHEREAS, the Town desires to purchase from the District, and the District desires to sell the Town, potable water for use by the Town for service to the Town's potable water customers lying within the overlap its municipal boundaries and the District service areas and WHEREAS, the Town and the District desires to formalize its arrangement to allow District to be the retail provider of potable water service to the Barefoot Lakes development; and WHEREAS, there has been proposed an Intergovernmental Agreement ("Agreement") for such purposes; and WHEREAS, the Town is authorized to enter into such an Agreement pursuant to applicable law, including without limitation C.R.S. §§ 2941 201 et sea; and WHEREAS, the Board of Trustees finds that such an Agreement is in the best interest of the Town and its citizens NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: Section 1. The proposed Intergovernmental Agreement ("Agreement") between the Town of Firestone and Little Thompson Water District is hereby approved in essentially the same form as the copy of such Agreement accompanying this Resolution. Section 2. The Mayor and Town Clerk are hereby authorized to execute the Agreement and the Mayor is further authorized to negotiate and approve on behalf of the Town such revisions to the Agreement as the Mayor and Town Manager determine are necessary or desirable for the protection of the Town, so long as the essential terms and conditions of the Agreement are not altered. INTRODUCED, READ, and ADOPTED this /�fliay of own Clerk 20154 TOWN OF FIRESTONE, COLORADO Mayor INTERGOVERNMENTAL AGREEMENT BETWEEN LITTLE THOMPSON WATER DISTRICT AND TOWN OF FIRESTONE, COLORADO This Intergovernmental Agreement ("Agreement") is made and entered into effective 2015 by and between Little Thompson Water District, a Colorado special district, hereinafter referred to as "the District" and the Town of Firestone, Colorado, a Colorado municipality, hereinafter referred to as "the Town." The District and the Town may herein be collectively called the "Parties" or each individually a "Party." RECITALS A. The District owns, maintains and operates a system for the treatment, storage, and distribution of potable water within Larimer County, Boulder County and Weld County, Colorado, B. The Town owns, maintains and operates a system for the storage and distribution of potable water to inhabitants of the Town. C. The Town is in the process of annexing a certain parcel of land comprised of 1,313.4 _acres generally located in portions of Sections 25, 35 and 36 of Township 3 North, Range 68 West of the 6ch P.M., Weld County Colorado (hereinafter the "Barefoot Lakes Subdivision"). D. The District has entered into those certain agreements dated April 7, 2005, October 14, 2010, October 11, 2012 and February 12, 2015 to provide water to the Barefoot Lakes Subdivision. E. The Town and the District have determined that it is in the best interests of the current and future residents of the Town and the District for the Parties to formalize their relationship with regards to the Barefoot Lakes Subdivision and cooperate with each other in providing potable water services. F. Section 294-203, C.R.S. provides that the District and the Town may enter into agreements with one another to provide governmental services. G. By enacting Titles 31 and 32 and specifically 631-35402 (1) (b) and 8324-502 (2) (c) of the Colorado Revised Statutes and pursuant to Article XIV, Section 18 of the Colorado Constitution, the Legislature of the State of Colorado has: (a) determined that the State of Colorado has a valid interest in providing water for its citizens; (b) clearly articulated and affirmatively expressed the State of Colorado's policy to allow municipalities and special service districts to provide water by utilizing cooperative agreements and to eliminate competition in areas where each party is capable of providing service; (c) developed a structure to actively supervise municipalities and special service districts if the District and Town choose to utilize such agreements; and (d) specifically provided that there shall be no 1 overlapping service territories for municipal corporations and special service districts providing water service. H. The Parties desire to set forth a framework whereby a) the District provides potable water to Town residents within the Barefoot Lake Subdivision on a retail basis; b) The Town obtains the right of first negotiation regarding Windy Gap Project Water as provided in Section 5; and c) whereby the District may treat some of the raw water owned by the Town and deliver potable water on a wholesale basis as provided in Section 3.01. L The Parties desire that the District have a framework and ability to provide certain areas in the Town a backup source of water for use during an emergency. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants, agreements, and promises set forth herein, the receipt and sufficiency of which are hereby acknowledged by both Parties, the Parties agree as follows: ARTICLE 1 RECITALS 1.01 The foregoing Recitals constitute substantive teams of this Agreement and are incorporated into this Agreement by this reference. ARTICLE 2 EXCLUSIVE SERVICE AREAS 2.01 There are hereby established within the overlapping boundaries of the Town and the District an exclusive service area for the District as set forth on Schedule A attached hereto and incorporated herein by reference. The shaded portions on Schedule A shall be designated as the exclusive treated water service and billing area of the District. The balance of Schedule A lying outside of the shaded portions shall be designated as (1) the exclusive treated water service and billing area of the Town if and when said areas are annexed into the Town or (2) the exclusive treated water service and billing area of another water provider per any existing or future intergovernmental agreement between said water provider and the Town. 2.02 The District shall have the right to continue to provide water service and bill all existing customers of the District, regardless of whose service area they are located and notwithstanding annexation of those areas by the Town. The Town shall not exercise any option or right to exclude any existing or future District customer or customers from the District's boundaries or the District's exclusive water service area irrespective of any future annexation of or within the District's boundary or the District's exclusive water service area by the Town. However, if an area is annexed into the Town and is within the Town's exclusive service area, then, upon redevelopment of that area, the customer may petition the District to transition service from the District to the Town, and the District shall not unreasonably deny said petition. Levi If the Town elects not to serve as the billing entity for all or a portion of the aforementioned areas designated as the Town's exclusive service area and not in the service area of another water provider, then the District may serve and bill all customers in the said area(s), under and in accordance with the Districts' bylaws, tariffs, and rules and regulations in effect from time to time, as though such customers were within the District's exclusive service area notwithstanding annexation of those areas by the Town. ARTICLE 3 PROVISION OF POTABLE WATER 3.01 If and when reasonably requested by the Town, the District and Town shall negotiate in good faith on a potable water treatment and delivery agreement whereby the Town provides raw water to the District and the District treats said water for use within that portion of the Town's exclusive service area northwest of the St. Vrain River, east of Weld County Road 13, and south of State Highway 66. 3.02 Water treated by the District for the Town shall be delivered through master meters at points of delivery ("Delivery Points"). Delivery Points shall be agreed upon in writing by the Parties if and when they are needed. 3.03 The District shall treat water made available by the Town to the District for emergency purposes at such Emergency Delivery Points as will be mutually agreed upon by the District and Town. The terms and operational parameters on such service shall be negotiated and determined at the time those Emergency Delivery Points are specifically identified and mutually agreed upon by the District and Town. An emergency purpose is defined as any occurrence, condition, or event that results in the Town being unable to deliver treated water in sufficient quantity or quality to its customers. Emergency conditions have a finite duration linked to a schedule agreed upon by both Parties to fix, repair, or replace the root cause of the emergency condition and return the system to normal service. Until such time as the agreement contemplated in paragraph 3.01 is entered into by the parties, the Town may provide the District with water from the following sources for emergency purposes: the Colorado -Big Thompson Project, the Windy Gap Project or any other source which can be treated by the District and is reasonably acceptable to the District. The Town shall retain ownership of the raw water rights which are temporarily transferred to the District, and the rights to reuse such water, if any. ARTICLE 4 TF.R M 4.01 The term of this Agreement shall be ten years commencing on at p.m. and ending on at p.m. The Agreement shall automatically renew for an additional ten year term beginning and ending unless either party provides written notice of its intent not to renew the agreement at least two years prior to termination. 3 ARTICLE 5 RIGHT OF FIRST NEGOTIATION REGARDING WINDY GAP WATER 5.01 The District owns twelve units in the Windy Gap Project of the Municipal Subdistrict of the Northern Colorado Water Conservancy District ("Windy Gap Units"), In the event that that the District determines that they desire to sell any portion of the Windy Gap Units to another party, District will notify the Town in writing of the availability of the Windy Gap Units. So long as the Town provides written notice to the District of its desire to negotiate for the purchase of the available Windy Gap Units within fourteen (14) days after receipt of the aforementioned notice regarding availability of the Windy Gap Units, the Town will have the first and exclusive right to negotiate for the purchase of such units for a period of ninety (90) days after receipt of the notice. If the District and Town do not agree on the terms for the sale of any portion of the Windy Gap Units and execute a purchase and sale agreement within the ninety (90) day period, the Town's first right to negotiate with respect to those Windy Gap Units shall end, and the District will have the right to sell such Windy Gap Units to any other person or entity upon any terms and conditions that the District desires, in its sole and absolute discretion. However, if the Town makes an offer to the District on any portion of the Windy Gap Units during said ninety (90) day period which is not accepted, the Town shall have the right to match any offer made by any other person or entity to the District for any portion of the Windy Gap Units if said offer is within 110% of the per Unit price offered by the Town. The District shall provide the Town written notice of any offer within 110% of the Town's offer and the Town shall have Thirty (30) Days to match said offer. Notwithstanding the lapse of the above referenced ninety (90) day negotiation period, nothing in this Agreement shall preclude Town and the District from continuing to pursue a potential purchase and sale of Windy Gap Units after the lapse of such period. 5.02 In the event that District determines that there is additional water available from the Windy Gap Units on an annual basis ("Excess Windy Gap Water"), and in the event that District decides to lease or otherwise allow the use of the Excess Windy Gap Water by parties other than the District, the Town shall be entitled to enter into negotiations with the District for the use of the Excess Windy Gap Water. This Section 5.02 creates no obligation that the District consummate any deal with the Town regarding the Excess Windy Gap Water but does provide that the Town shall have the opportunity to present its proposal relating to such water to the District before the District leases the Excess Windy Gap Water to another party. 5.03 The District and the Town acknowledge that any potential sale or lease of any portion of the Windy Gap Units is subject to the approval of the Municipal Subdistrict of the Northern Colorado Water Conservancy District and that such sale or lease, if proposed, shall be in accordance with all rules and regulations of the Municipal Subdistrict of the Northern Colorado Water Conservancy District. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.01 The District, from time to time as it sees fit, has promulgated and may promulgate such new or amended rules, regulations, tariffs and bylaws, and the Town agrees to abide by such 0 existing and amended rules, regulations, tariffs and bylaws of the District related to the terms of this Agreement. 6.02 The Parties shall assist each other in acquiring any easements and other permits or approvals necessary to accomplish and place into effect this Agreement, and for the construction of any necessary facilities. 6.03 District and Town agree to continue the cooperative exchange of information, operational assistance and emergency aid. If, in the maintenance of their respective water systems it becomes necessary by reason of any emergency or extraordinary condition for either Party to request the other to furnish personnel, materials, tools, and equipment for the accomplishment thereof, the Party so requested shall cooperate with the other and render such assistance as the Party so requested may determine to be available. The Party making such requests, upon receipt of properly itemized bills from the other Party, shall reimburse the Party rendering such assistance for all costs properly and reasonably incurred by it in such performance, including but not to exceed ten percent thereof for administrative and general expense, such costs to be determined on the basis of current charges or rates used in its own operations by the party rendering the assistance. 6.04 The invalidity or unenforceability of any provision of this Agreement shall not affect or impair any other provision unless material to the performance of either Party. 6.05 The Parties agree that, in addition to any other remedies allowed by law, the provisions Af this Agreement may be specifically enforced in a Court of competent jurisdiction and, in any judicial action, the unsuccessful Party agrees to pay all costs of such action as actually incurred by the successful Party, including reasonable attorney's fees as assessed by such Court. 6.06 Except as otherwise provided herein, if either Party shall be in default or breach in performance of any term, covenant, or condition of this Agreement, the Party not in default or breach shall give the defaulting or breaching Party prompt written notice of such default or breach. If the default or breach is not cured within thirty days following notice, the Party that is not in default or breach may seek remedies provided for herein. 6.07 The waiver by either Party of any default or breach of any term, covenant or condition of this Agreement shall not operate as a waiver of any default or breach of any other term, covenant or condition, or subsequent default or breach of the same. 6.08 Neither Party may assign or transfer all or any part of this Agreement without the prior written consent of the non -assigning Parry, although such consent shall not be unreasonably withheld. However, the Town may assign this agreement in whole or in part to its Water Enterprise or another enterprise established by the Town and such assignment is hereby approved by the District. 6.09 This Agreement sets forth the entire understanding of the Parties; there are no oral representations relied upon by any Party hereto, which are not specifically set forth herein. This Agreement may be modified only in writing, mutually executed by the Parties hereto. 5 6.10 Any notice, demand, or request delivered by mail in accordance with this section shall be deemed given seventy-two hours after the same is deposited, certified mail, in any post office or postal box regularly maintained by the United States Postal Service addressed to the District at 835 East Highway 56, Berthoud, Colorado 80513 and to the Town at Town of Firestone, P.O. Box 100, 151 Grant Avenue, Firestone, Colorado 80520. The Addresses may be changed at any time by similar notice. 6.11 Neither Party shall, by reason of any provision of this Agreement, or the use of water thereunder, or otherwise, acquire vested or adverse right or future right, in law or equity, in the water rights owned by the other Party. 6.12 The Town shall not impose or collect any occupancy or license taxes or any other special taxes, assessments or excises upon the facilities, lines or other property of the District either designated as a franchise fee or tax, occupancy tax, license, or tax for property or business of the District or otherwise. For any new customer provided retail service by the District after annexation to the Town, the District agrees to pay to the Town a percentage amount of the gross monthly revenues. Said percentage amount shall be equal to the percentage levied by the Town as payment in lieu of taxes on its own water utility enterprise customers. The current rate charged by the Town on its own water utility enterprise is 6%. Said payment shall be due and payable by District to the Town on the 15th of each month. 6.13 To the extent legally possible and except as otherwise set forth herein, each Party shall indemnify and hold the other Party harmless from and against any and all liability, loss, damages, costs and expenses, including reasonable attorney's fees, arising from the indemnifying Party's negligence, including but not limited to negligent delivery of water at rates or pressures which exceed the maximum pressure or do not meet the minimum pressure established on Schedule C. By such agreement to indemnify and hold each other harmless, neither Party waives any defenses and immunities to third Parties which it would otherwise be entitled under The Colorado Governmental Immunity Act. IN WITNESS WHEREOF, the District and the Town have hereunto executed this Agreement the day and year first above written. [Remainder ofpage intentionally left blank —signature page to follow) C� By: ATTEST: Secretary By: ATTEST: Town Clerk LITTLE THOMPSON WATER DISTRICT President TOWN OF FIRESTONE Mayor 7