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HomeMy WebLinkAbout23-55 Approving Allocation of Costs & Reimbursement of Expenses Last Chance Ditch Company Agreement 05-10-2023RESOLUTION NO.23-55 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO APPROVING AN ALLOCATION OF COSTS AND REIMBURSEMENT OF EXPENSES AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND THE LAST CHANCE DITCH COMPANY WHEREAS, the Town of Firestone ("Town") obtained 3.1667 shares ("Firestone Shares") in the Last Chance Ditch which it desires to change in Water Court from its decreed purpose of agricultural irrigation to uses for the Town; and WHEREAS, the Last Chance Ditch Company's Bylaws require that the Town make a written application to the Company's Board of Director's before it can proceed with a change case for the Firestone Shares in Water Court ("Catlin Application'); and WHEREAS, prior to submitting the Caitlin Application the Town has requested assistance from the Last Chance Ditch Company ("Company") for access to Company records and reports which will assist the Town in its Catlin Application; and WHEREAS, as the Towns request will require the Company to incur administrative, engineering and legal expenses it is appropriate for the Town to reimburse the Company for such costs as set forth in an Agreement between the parties. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Agreement for the Allocation of Costs and Reimbursement of Expenses between the Town of Firestone and the Last Chance Ditch Company is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to execute the Agreement on behalf of the Town. INTRODUCED, Imp AND ADOPTED this 10th day of May, 2023. TOWN OF FIRESTONE, COLORADO Fran kA'J'11"CnCz, Mwyw► PfoT6,,,,� AP ROVED T FORM: KIM William P. Hayashi, TW Attorney AGREEMENT FOR THE ALLOCATION OF COSTS AND REIMBURSEMENT OF EXPENSES THIS AGREEMENT FOR THE REIMBURSEMENT OF EXPENSES ("Agreement") is made effective as of the loth day of May, 2023, by and among the LAST CHANCE DITCH COMPANY ("Company"), TOWN OF FIRESTONE, a Colorado municipal corporation ("Firestone"). These parties may collectively be referred to as "the Parties." RECITALS A. The Company operates an irrigation distribution system in Weld County. B. Water rights decreed to the Last Chance Ditch were originally decreed for agricultural irrigation purposes. Firestone recently obtained 3.1667 shares in the Last Chance Ditch ("Firestone Shares") and intends to change the Firestone Shares in Water Court for its uses. C. Pursuant to the Company Bylaws, Firestone must make written application to the Company's Board of Directors before it can proceed with a change case for the Firestone Shares in the Water Court ("Catlin Application"). D. Before submitting a Catlin Application, Firestone has requested that the Company provide additional information to assist Firestone in preparing its Catlin Application. E. This Agreement will allow Firestone to work with representatives of the Company to obtain access to certain records and reports of the Company. Firestone acknowledges that this will require the Company to dedicate legal, engineering, and staff time and, as a result, the Company will incur certain costs. F. Firestone desires and intends to reimburse the Company for such costs pursuant to the terms of this Agreement. NOW, THEREFORE, in consideration of the foregoing Recitals, the Parties hereto mutually agree as follows: 1. Incorporation. The Recitals set forth above are accurate and are incorporated into this Agreement. 2. Term; Termination. This Agreement shall commence the latest date upon which all parties have signed this Agreement ("Effective Date"). This Agreement may be terminated by any party at any time, upon provision of thirty (30) days' notice in writing to the other parties and payment of all outstanding expenses to the Company. This Agreement shall automatically terminate at the time Firestone submits a Catlin Application to the Company. Firestone shall pay any outstanding invoices arising under this Agreement within thirty (30) days of submission of the Catlin Application or receipt of the final invoice, whichever is later. Costs incurred after the date of termination of this Agreement shall be paid in accordance with the Page 1 of 5 Company's Bylaws. 3. Reimbursement of Direct Costs. Firestone shall reimburse the Company for all "Direct Costs" incurred by the Company on Firestone's behalf in connection with informational requests made by Firestone. Such Direct Costs shall include, but are not limited to: administrative services, such as researching, compiling, and/or copying Company's records; and/or compensation to employees and Board members who provide technical and informational services, such as verbal or written operational and water rights administration information; and legal and/or engineering expenses incurred by the Company. 4. Deposit and Payment. To cover the initial Direct Costs, Firestone shall make a deposit with the Company of S5,000. The Company shall submit to Firestone monthly invoices ("Monthly Invoice") detailing Direct Costs incurred by the Company for the prior month. if the initial deposit is fully drawn down prior to Firestone's submittal of a Catlin Application, Firestone shall reimburse the Company within thirty (30) days of receipt of any Monthly Invoice for the total amount due. In the event that there is a balance remaining on the initial deposit at the time that Firestone submits a Catlin Application to the Company after payment of all invoices for Direct Costs arising under this Agreement, the Company shall recognize the remaining balance as a credit towards any additional deposit the Company may request from Firestone pursuant to its Bylaws. 5. Use of Information. The Parties agree that the information contemplated to be provided to Firestone under the terms of this Agreement will be of the type necessary to the development of the Catlin Application and, subsequently, an application for a change of water rights for the Firestone Shares in Water Court. The Company may deny any request for information to the extent providing that information to Firestone is not authorized under the Company's Bylaws, rules, regulations, policies, any other applicable law, or that would result in the breach of any legal privilege or protection otherwise available to the Company. 6. Notices. Any notice or other communication given pursuant hereto relating to this Agreement shall be in writing and shall be deemed to have been duly given (i) on the date and at the time of delivery if delivered personally to the party to whom notice is given at the address specified below; or (ii) on the date and at the time of delivery or refusal of acceptance of delivery if delivered or attempted to be delivered by an overnight courier service to the party to whom notice is given at the address specified below; or (iii) on the date of delivery or attempted delivery shown on the return receipt if mailed to the party to whom notice is to be given by first-class mail, sent by registered or certified mail, return receipt requested, postage prepaid and properly addressed as specified below; or (iv) on the date and at the time shown on the facsimile or electronic mail message if telecopied or e-mailed to the number or address specified below and receipt of such telecopy or electronic mail message is acknowledged: If to the Company, to: Last Chance Ditch Company P.O. Box 119 Longmont, CO 80502 Telephone: 303-776-7207 Page 2 of 5 E-mail: angieAdangrantbookkeeping com With a copy by the same delivery method, to: Scott Holwick Lyons Gaddis P.O Box 978 Longmont, CO 80502 303-776-9900 Email: sholwicknalvonsgaddis.com If to Firestone, to: Town of Firestone Attention: Julie Pasillas Director of Public Works 9950 Park Ave Firestone, CO 80504 Telephone: 303-531-6258 Email: ipasillasna iirestone.gov With a copy by the same delivery method, to: Wes Knoll Lawrence Custer Grasmick Jones & Donovan LLP 5245 Ronald Reagan Blvd., Ste. 1 Johnstown, CO 80534 Telephone: 970-622-8181 E-mail: wes a,licglaw.com Any such addressee may change its address for such notices to the other addressees in the United States as such addressee shall have specified by written notice given as set forth above. TABOR. This Agreement while requiring reimbursement for prior expenses shall not be construed or interpreted as creating, directly or indirectly, a general obligation debt, multi - fiscal year obligation or other financial obligation whatsoever of Firestone within the meaning of any constitutional or statutory limitations or requirements, nor shall this Agreement directly or indirectly obligate Firestone to make payments beyond those appropriated for the current fiscal year. 8. Assignment. This Agreement shall not be assignable by the Parties. 9. Colorado Law. This Agreement and the rights and obligations of the Parties hereunder shall in all respects be governed, construed, interpreted, applied and enforced in accordance with the laws of the State of Colorado. In the event of a dispute or alleged breach arising under Page 3 of 5 this Agreement, venue for any resulting arbitration or litigation shall be proper in Weld County, Colorado, or in the Water Court for Water Division 1, as appropriate. 10. Counterpart Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument, and either of the Parties hereto may execute this Agreement by signing any such counterpart. Signatures may be evidenced by copies transmitted via facsimile or electronic mail. 11. Entire Agreement. This Agreement sets forth the entire agreement between the Parties. There have been no additional oral or written representations or agreements regarding this Agreement. 12. No Waiver of Governmental Immunity/No Third Party Beneficiary. This Agreement shall not create any duty of care or liability with respect to any person or entity not a party to this Agreement, or waive any of the privileges or immunities the Parities or their officers, employees, successors and assigns may present pursuant to law, including, but not limited to, the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq., as amended. [REMAINDER OF PAGE INTENTIONALLY BLANK] Page 4 of 5 IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first set forth above. LAST CHANCE DITCH COMPANY TOWN OF FIRESTONE By: Page 5 of 5