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HomeMy WebLinkAbout 14-19 Approving a Wholesale Municipal Water Sale AgreementRESOLUTION NO. I t q A RESOLUTION APPROVING A WHOLESALE MUNICIPAL WATER SALE AGREEMENT WITH THE LEFT HAND WATER DISTRICT WHEREAS, the Land Hand 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 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 owns certain raw water rights that can be delivered to District's water treatment facilities; and WHEREAS, the Town desires to purchase from the District, and the District desires to sell to the Town, potable water for use by the Town for service to the Town's potable water customers lying within its municipal boundaries and west of Interstate 25; and WHEREAS, there has been proposed a Wholesale Municipal Water Sale 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. §§ 29-1-201 et sees ; 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 Wholesale Municipal Water Sale Agreement between the Left Hand Water District and the Town of Firestone is hereby approved in essentially the same form as the copy of such Agreement accompanying this Resolution. Section 2. The Mayor is hereby authorized to execute the Agreement on behalf of the Town, and is further authorized to negotiate and approve on behalf of the Town such revisions to the Agreement as the Mayor determines 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 ��day of hj&j(j&, 2014. TOWN F TONE, COLORADO ATTEST: Town Clerk 2 WHOLESALE MUNICIPAL WATER SALE AGREEMENT This Wholesale Municipal Water Sale Agreement (the "Agreement") is made and entered into effective on the day of , 20 ,between the TOWN OF FIRESTONE, COLORADO, a municipal corporation, hereinafter referred to as the "Town," and the LEFT HAND WATER DISTRICT, a special district organized pursuant to Colorado law, hereinafter referred to as the "District." The District and the Town agree as follows. 1. BACKGROUND PURPOSE AND AUTHORITY 1.01 Section 29-1-203, C.R.S. provides the District and Town may enter into agreements with one another to provide services lawfully authorized to each of them. 1.02 District owns, maintains and operates a system for the treatment of water and the storage, transportation and distribution of potable water within Boulder County and Weld County, Colorado. 1.03 Town owns, maintains and operates a system for the storage and distribution of potable water to the inhabitants of the Town, and owns certain raw water rights that can be delivered to District's water treatment facilities. 1.04 Town desires to purchase from the District, and the District desires to sell to the Town, potable water for use by the Town for service to the Town's potable water customers lying within its municipal boundaries and west of Interstate 25 . 1.05 By enacting Titles 31 and 32 and specifically §31-35-402 (1) (b) and §32-1-502 (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: 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 and duplication of services and infrastructure in areas where each party is capable of providing service and/or has existing infrastructure. 2. PROVISION OF POTABLE WATER WEST OF I-25. 2.01 District shall sell and deliver to Town, and Town shall purchase and receive from District, potable water for use in Town's water system within the District's service area west of Interstate 25. The rates paid for the water and other District products and services shall be as provided on Schedule A attached to the Agreement. The point(s) of delivery of potable water by the District to Town shall be as set forth in Schedule B attached hereto, which may be amended from time to time as agreed upon by the parties ("Delivery Points"). The minimum annual amount, peak Page 1 of 15 hourly demand, and operating pressures shall be as provided on Schedule C attached to the Agreement. 2.02 Town may purchase or receive potable water from any water provider other than the District throughout the term of the Agreement for Town's annexed properties; provided, however, that. (a) in no event shall the Town interconnect the District's lines with other such water provider's systems without the advance express consent of the Districts and (b) that any such service shall be consistent with any intergovernmental agreements between the District and the other water provider regarding such service. The District currently serves individual taps on parcels lying west of Interstate 25 that may annex into the Town. The District will continue to serve such taps directly until redevelopment of the property and assumption of potable water service directly from the Town or abandonment of the District tap or taps by the owner/developer pursuant to the District's regulations. 2.03 Water delivered to the Town shall, at the points of delivery to the Town, meet all federal and state requirements for drinking water. 2.04 District shall use reasonable diligence to provide a constant and uninterrupted supply of water except for interruptions or reductions due to: (1) uncontrollable forces; (2) operations of devices installed for water system protection; and (3) maintenance, repair, replacement, or installation of equipment, or investigation and inspection of the water system, which interruptions or reductions are temporary, and in the opinion of District, necessary. Excepting cases of emergency caused by material failures or uncontrollable forces, District shall give Town a minimum of five (5) working days advance notice of such interruptions or reductions so that notice can be delivered to Town's customers and any needed modifications to Town's delivery system can occur. District shall remove the cause of any interruption or reduction with diligence. 3. RATES 3.01 The District will bill Firestone on a monthly basis for all water measured through the meter installed at the point of delivery to the Town and a monthly cost of service fee based on meter size(s). Until revised by District, the rate(s) shall be as specified on Schedule A. Schedule A may be revised from time to time by the District. Such revised rates established by District after the date of this Agreement shall be deemed to be substituted for the original rates herein provided in Schedule A; and Town agrees to pay such revised rates after the effective date of such rate revisions. No rate increase shall take effect until after sixty days prior written notice to the Town. 3.02 Billing for the rates shall be as provided in the rules and regulations of the District. Any bill not paid shall be subject to the termination of service and be subject to the terms of the rules and regulations of the District for nonpayment; provided, however, that District shall provide Page 2 of 15 Town thirty days' written notice of any proposed termination of service, which notice shall state the payment or cure required to avoid the proposed termination of service, and Town shall have 30 days from the date of such notice to make the required payment or cure the asserted default. If a default cannot be cured within 30 days, Town shall not be subject to termination of service provided it has commenced activities to cure the default within said 30 day period and thereafter diligently pursues such activities to completion. A late payment fee as stated on Schedule A shall apply to all late payments. 3.03 Within 60 days of execution of this Agreement, the Town shall pay to District 50% of the Initial Master Meter Connection Fee as shown on the attached Schedule A. The remaining portion of the Initial Master Meter Connection Fee shall be paid in full upon commencement of construction of the initial master meter connection to the District's distribution system at the then current Plant Investment Fee (PIF) and Eastern Zone Transmission Line Fee (EZT). The Initial Master Meter Connection Fee is based on 16 SFE's and is limited to serve up to the first 16 SFE's that are permitted by the Town within the area served by the initial master meter connection. Additional SFE's served by the initial master meter connection will be .subject to an additional Capital Contribution as shown on the attached Schedule A. In the event that the initial master meter connection is not completed within five (5) years of the date of mutual execution of this Agreement, Town shall forfeit the 50% payment to the District and this Agreement shall automatically terminate. The retention of the deposit shall be retained by the District as liquidated damages. It is understood and agreed by the Parties that the purpose of this requirement for completion of the purchase and installation of the initial master meter connection within the five (5) year period is based upon the financial requirements of the District to fund its capital construction needs. The District, by this Agreement, has committed a definite portion of the total capacity of its system to the Town under this Agreement and, therefore, must look to the Town for performance of its obligations in order that the District may meet its capital construction, plant upgrades, and operating expenses. If this Agreement is terminated because the purchase and installation of the initial master meter connection has not been completed within the five (5) year period, District may recommit such reserved capacity to other applicants without further notice to Town. 3.04 Not -withstanding any provision of this Agreement to the contrary, except for the Master Meter Connection Fee described in Section 3.03, Town shall not be obligated to make payment of any fees or rates, including without limitation any minimum charges or commodity charge, until such time as Town has paid for, and District has constructed, the Master Meter Connection and all water lines necessary to connect to District's existing distribution system and such connection has been placed into service for provision of water service to property in the Town. Page 3 of 15 4. TERM 4.01 This Agreement shall remain in full force and effect for an initial term of twenty (20) years from the date of the Agreement with an option to extend the Agreement for an additional ten (10) year term upon full payment of the Initial Master Meter Connection Fee and subject to the provisions of paragraph 3.03. Notice to extend the term for the additional ten years shall be made in writing by the Town prior to the end of the initial twenty (20) year term. 4.02 The term of the Agreement shall not be extended beyond the additional ten (10) year option period without the written agreement of the parties. Upon the expiration of the term of the Agreement, all water sales by the District to Town shall terminate. District may at its sole election remove or abandon any or all of its facilities that are used to provide water service to Town after the end of the term of the Agreement. Upon Town request District agrees to convey to Town those facilities identified by the Town that the District otherwise intended to abandon. 4.03 Town and District agree that not less than five (5) years prior to the expiration of the initial twenty (20) year term Agreement, both parties shall jointly review the Agreement for the purpose of considering the advisability of extending, altering, or modifying the Agreement. 5. RAW WATE 5.01 Town shall annually, each calendar year, provide to District raw (untreated) water for use by District within District's water system, at the rate specified on Schedule C in the "Raw Water Requirements." Raw water provided to District shall be provided on an actual gallon basis. Raw water for the first year of demand shall be determined at the time of connection based on an estimate of projected use for such first year to be mutually agreed upon. 5.02 The Raw Water Requirements shall be provided to District from the Colorado -Big Thompson Project ("CBT"), the Northern Integrated Supply Project (NISP), the Northern Colorado Water Conservancy District's Windy Gap water, or any other source of water acquired by Town and treatable by District at its facility. 5.03 Town shall retain ownership of the raw water rights. 5.04 District shall not be required to acquire any additional raw water necessary to meet Town's Raw Water Requirements. 5.05 In the event Town does not provide sufficient raw water to District to meet its Raw Water Requirements the Town shall be in default under the Agreement. District shall give Town notice A such insufficiency and Town shall promptly provide the additional raw water necessary to meet its Raw Water Requirements. Page 4 of 15 5.06 Town shall pay for all costs associated with acquisition of the Raw Water Requirements by Town and transfer of the same to District, and any periodic charges or assessments related to such raw water. Town shall be responsible for all costs or expenses involved in changing the District's operations to facilitate District's use of raw water under the terms of this Agreement from a source proposed by Town that is other than CBT, NISP or other Northern Colorado Water Conservancy District water or Windy Gap water. Nothing in this Agreement requires the District to take a water source other than those sources that can be delivered directly or through exchange through the Northern Colorado Water Conservancy District. 6. MASTER METER(S), OWNERSHIP AND MAINTENANCE OF FACILITIES 6.01 One or more master meters shall be installed, owned, operated and maintained by the District at each Delivery Point. The Town shall be responsible for the cost of design and installation of the master meter(s), said cost being provided by District prior to commencement of the work. The District shall commence design of any master meter connection upon receipt of payment in full of the required design fee, which shall fee shall be determined by the District within 30 days of written request by the Town. Design of the master meter connection shall be completed within 60 days of receipt of the design fee. Immediately upon completion of the design District shall provide Town with the installation cost for the master meter connection. District shall complete the installation and have the master meter connection available for service within 60 days, weather permitting, of receipt of payment for the installation by the Town. 6.02 Such meters) shall be read by District under the District's meter reading schedule. If requested by Town, District shall give Town advance notice of the time and date of any master meter reading and allow a Town representative to be present. Town shall have access to the meter reading data at any time. If any meter shall fail to register for any period, Town and District shall attempt in good faith to reach agreement as to the amount of water furnished during such period based upon all reasonable criteria and indicia of use for the period at issue. If no agreement can be reached, District shall issue a billing to Town which shall be based upon historical average annual usage data; and Town shall pay such bill issued by the District. 6.03 Town's water shall not be allowed to backflow or otherwise enter the District's water delivery system; Cl" the master meter vault shall provide for protection for this requirement. Town shall own, operate and maintain, and shall be responsible for the construction, operation, and maintenance of its water distribution lines and other water system facilities on the downstream side of the Delivery Point(s). Town shall undertake all proper steps under American Water Worl<s Association standards to prevent or disconnect, or both, connections to Town's water system which would in any way permit water in Town's water distribution system to enter District's water distribution system by backflow, back -pressure or otherwise, so as to prevent the Page 5 of 15 quality of water in District's water distribution system from being detrimentally affected by water in Town's water distribution system. 6.04 District shall own, operate and maintain and shall be responsible for the construction, operation and maintenance of District's water distribution lines and other water system facilities, water lines and treatment plant facilities necessary to serve Town as required by this Agreement, ending at the Delivery Point(s). For the purpose of determining repair, replacement, operation and maintenance responsibility, District shall own all facilities at each Delivery Point to a point five feet on the downstream side of the master meter vault. From the point five feet on the downstream side of the master meter vault continuing on the downstream side of the vault, Town shall own all such water facilities. 6.05 Town shall pay for and District shall install, own and operate a flow restricting valve at each A the Delivery Point(s). Said valve(s) shall be capable of providing a maximum rate of flow as provided is Schedule C (such maximum is for the total of all delivery points to the Town.) 6.06 District shall deliver treated water to the Town at the Delivery Points) that meets or exceeds the minimum standards of the Colorado Department of Public Health and Environment and the United States Environmental Protection Agency. 6.07 Town is solely responsible for the distribution of the potable water to its users beyond the master meter(s) installed at the point(s) of delivery to the Town. Under applicable state rules and regulations, District is a water supplier and Town's system may be deemed to be a non- integrated consecutive system. Absent qualitying under a specitic exemption, a consecutive system is legally responsible for water quality monitoring, reporting, and compliance with all water quality standards within its system from the point that the District's water enters the Town's system at the master meter. Regardless of whether Town is an exempt or non-exempt consecutive system under applicable regulations, the parties deem the Town's consecutive system to not be part of the District's integrated water system and therefore the Town shall assume, and be responsible for, all maintenance of all internal distribution lines beyond the master meter, and all monitoring and reporting requirements to applicable agencies. 7. ANNEXATION INFORMATION 7.01 Town shall provide to District notice of any proposed annexation to Town within the District service area, as shown on Schedule D, at the time Town's officials become aware of the proposed annexation. The notice shall contain a legal description of the annexation and a map showing the area proposed to be annexed as well as the surrounding area. Town shall provide to District a copy of any report furnished to the County Commissioners pursuant to §31-12408.5, C.R.S. District shall be allowed to participate in all planning relative to the location of utilities, roads, Page 6 of 15 drainage easements, ditch rigWof-way and utility easements. Such participation shall be that which is accorded to District by law. 8. ESTABLISHMENT OF SERVICE AREAS 8.01 Town shall not render any water service directly or indirectly to property in the exclusive District Service Area on Schedule D until after the date that such property has been annexed to Town and after the date that such property has been excluded from the boundaries of the District. Town shall not sell any water at wholesale or retail to any existing or potential customer of Town for resale by that customer to any point for use within the District Service Area. 8.02 District shall continue to be the exclusive water service provider within the District Service Area notwithstanding the annexation of any part of such area by Town, except as provided in Sections 2.02 and 8.01. 9. ENFORCEABILITY 9.01 The parties to this Agreement recognize that there are legal constraints imposed upon Town and District by the Constitution, statutes and laws of the State of Colorado and the United States. Subject to such constraints, the parties fully intend to carry out the terms and conditions A the Agreement in good faith. 9.02 Notwithstanding any of the provisions of this Agreement to the contrary, in no event shall any of the parties exercise any powers or undertake any actions which shall be prohibited by applicable law. 9.03 Whenever possible, each provision of the Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provisions of the Agreement shall not affect or impair any other provisions. 9.04 All negotiations, considerations, representations, and understandings between the parties are incorporated herein. 9.05 Town shall abide by all tariffs, rules, regulations, and policies of the District that the District establishes from time to time which are consistent with the terms of this Agreement; and all such tariffs, rules, regulations, and policies of the District may be changed by the District at any time during the term of the Agreement. The Schedules attached to the Agreement may be changed by the District at any time. 10. MISCELLANEOUS 10.01 Neither party shall be considered in default in respect to any obligation hereunder if prevented from fulfilling such obligations by reason or uncontrollable forces, the terms Page 7 of 15 uncontrollable forces being deemed for the purposes of the Agreement to mean any cause beyond the control of the party affected, including, but not limited to, failure of facilities, flood, earthquake, storm, lightning, fire, epidemic, or, riot, civil disturbance, labor disturbance, sabotage, and restraint by court or public authority, which by due diligence and foresight such party such party could not reasonably have been expected to avoid. Either party rendered unable to fulfill any obligation by reason of uncontrollable forces shall exercise due diligence to remove such ability with all reasonable dispatch. Failure to pay any amount due under the Agreement shall never be considered as due to an uncontrollable force. 10.02 Town and District agree to continue the cooperative exchange of information, operational assistance and emergency aid. If, in the maintenance of their respective water systems and other water systems from which either party may obtain water service, 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. 10.03 The parties shall promptly take all necessary action to obtain approvals necessary to consummate this Agreement and render to each other such assistance in cooperation as the parties may reasonably request of the other in order to expeditiously carry out the terms and provision hereof. 10.04 The laws of the State of Colorado shall govern the validity, performance and enforcement A this Agreement and venue for all actions shall be in Weld County. 10.05 The parties agree that the provisions of the Agreement may be specifically enforced in a court of competent jurisdiction, and the parties agree that the defaulting party shall pay all costs of such action as actually incurred by the non -defaulting party, including attorney fees. 10.06 Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or partnership or joint venture between the parties hereto. 10.07 Whenever herein the singular number is used, the same shall include the plural, and neuter gender and shall include the masculine and feminine genders when the context so requires. Page 8 of 15 10.08 Any waiver of or deferral of action upon at any time by either party hereto of its rights with respect to a default or any other matter arising in connection with the Agreement shall not be deemed to be a waiver with respect to any subsequent default or matter. 10.09 Neither party may assign or transfer all or any part of this Agreement without prior written consent of the non-assi wgning party. Page 9 of 15 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. TOWN %J FIRESTONE BY: Mayor ATTEST: Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF WELD ) Subscribed and sworn to under oath before me by Mayor and , Town Clerk of the Town of Firestone on this day of , 20_. My commission expires: Address: Town of Firestone Attention: Town Manager 151 Grant Avenue P.O. Box 100 Firestone, CO 80520 And Light Kelly, P.C. 101 University Boulevard, Suite 210 Denver, CO 80206 Notary Public Page 10 of 15 BY: President ATTEST: Secretary STATE OF COLORADO ) ) ss. COUNTY OF WELD ) LEFT HAND WATER DISTRICT Subscribed and sworn to under oath before me by , President and , Secretary of Left Hand Water District on this day of , 20_6 My commission expires: Address for Mailing Notice: Left Hand Water District Attention: District Manager P.O. Box 210 N iwot, CO 80544 Physical Address for Deliveries: 6800 Nimbus Road Longmont, CO 80503 Notary Public Page 11 of 15 SCHEDULE A TO WHOLESALE MUNICIPAL WATER SALE AGREEMENT RATES: MINIMUM CHARGE COMMODITY CHARGE: CAPITAL CONTRIBUTION: BETWEEN TOWN OF FIRESTONE, COLORADO LEFT HAND WATER DISTRICT [water rate, tap fee rate and delinquency fees] $ 130.54/Month $ 2.05 /1,000 gallons Initial Master Meter Connection Fee —The Initial Master Meter Connection Fee shall be the current Plant Investment Fee (PIF) and Eastern Zone Transmission Line Fee (EZT) for a 3 inch tap (16 SFE's). TAP FEE: FOR EACH RESIDENTAL EQUIVALENT TAP (BEYOND THE 16 SFE INCLUDED IN THE INITIAL MASTER METER CONNECTION FEE) PAY TO DISTRICT: The then -current plant investment fee and any established line reimbursement fees per each residential tap equivalent OTHER CHARGES: PER REGULAR RULES AND REGULATIONS OF THE DISTRICT LATE PAYMENT FEES UNPAID AMOUNT TO BEAR INTEREST 12% per annum or 1% per month Page 12 of 15 SCHEDULE B TO WHOLESALE MUNICIPAL WATER SALE AGREEMENT BETWEEN TOWN OF FIRESTONE, COLORADO AND LEFT HAND WATER DISTRICT [Exhibit showing point(s) of delivery of potable water] RON c-�I f a A .IFFY I� v� , tt_ rF Approximate Location A of Point of Connection _ w SH 119 if pk l �L IFi 9 r'. i\ 41tg._. 4 Page 13 of 15 SCHEDULE L. WHOLESALE MUNICIPAL WATER SALE AGREEMENT BETWEEN TOWN OF FIRESTONE, COLORADO [minimum annual amount, peak hourly demand, operating pressure, maximum rate of flow, and Raw Water Requirement] MINIMUM ANNUAL AMOUNT: The Town shall purchase a minimum annual volume of water equal to 2,000,000 gallons or 125,000 gallons per SFE served by the master meter, whichever is greater. MAXIMUM ANNUAL AMOUNT: The maximum annual delivered to the Town shall be 61,320,000 gallons. MAXIMUM DELIVERY: The maximum rate of deliver to any master meter shall not exceed 140 GPM, and shall be available to the Town except as conditioned by Paragraph 2.04 of this Agreement. MINIMUM DELIVERY PRESSURE: The District shall deliver water to the individual master meter sites at the following residual pressures, except as conditioned by Paragraph 2.04 of this Agreement: Site 1: 40 psi Page 14 of 15 SCHEDULE D TO WHOLESALE MUNICIPAL WATER SALE AGREEMENT BETWEEN TOWN OF FIRESTONE, COLORADO AND LEFT HAND WATER DISTRICT [Left Hand Water District Service Area Boundary Map] t f Y. r:to l:cr; It Page 15 of 15