HomeMy WebLinkAbout21-11 Seventeenth Interim Agreement NISP 01-13-2021RESOLUTION N". 21-11
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE,
COLORADO, APPROVING THE SEVENTEENTH INTERIM AGREEMENT
BETWEEN THE NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY
ENTERPRISE AND THE TOWN OF FIRESTONE COLORADO ACTING WITH AND
ON BEHALF OF THE FIRESTONE WATER ACTIVITY ENTERPRISE FOR
PARTICIPATION IN THE NORTHERN INTEGRATED SUPPLY PROJECT
WHEREAS, the Northern Integrated Supply Project Water Activity Enterprise ("NISP
Enterprise") is developing a water project ("Project") for the purpose of developing a new reliable
water supply for the beneficial use of the Town of Firestone acting with and on behalf of the
Firestone Water Activity Enterprise and other entities; and
WHEREAS, overall Project costs are divided among the entities that participate in the
Project; and
WHEREAS, Phases 1, 2 and 4 of the Project have been completed and years one through
six of the 3`d Phase, have been completed; and
WHEREAS, it is necessary that the NISP Enterprise pursue years 7 through 18 of the
Project (referred to as Phase 3A) and Phases 5, 6 and 7 of the Project at this time in order to be
able to complete the Project on the time schedule desired by the participants; and
WHEREAS, pursuing Phases 3A, 5, 6 and 7 of the Project on behalf of the participants
will require funding from the participants.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORADO:
The Seventeenth Interim Agreement between the Northern Integrated Supply Project
Water Activity Enterprise and the Town of Firestone acting with and on behalf of the Firestone
Water Activity Enterprise for Participation in the Northern Integrated Supply Project 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 Seventeenth Interim Agreement on behalf of the Town of
Firestone acting with and on behalf of the Firestone Water Activity Enterprise.
INTRODUCED, READ AND ADOPTED this 13th day of January, 20210
ATTEST:
J�ssjrEa Koenig, CMC, T
VED AS TO
William
SEVENTEENTH INTERIM AGREEMENT WITH THE
NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE,
FOR PARTICIPATION IN THE
NORTHERN INTEGRATED SUPPLY PROJECT
This Agreement is made and entered into as of - q? lti , 2021, by and between the
Northern Integrated Supply Project Water Activity Enterprise, a government -owned business
within the meaning of Article X, § 20(2)(d) of the Colorado Constitution, organized pursuant to
C.R.S. §§ 37-45.1-101 et seq., owned by the Northern Colorado Water Conservancy District, and
whose address is 220 Water Avenue, Berthoud, Colorado 80513 (the "NISP Enterprise"), and
the Town of Firestone, a municipal corporation, acting with and on behalf of the Firestone Water
Activity Enterprise, a government -owned business within the meaning of Article X, § 20(2)(d) of
the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-101 et seq., and owned by the
Town of Firestone, whose address is P.O. Box 100, Firestone, CO 80520-0100 ("Participant").
Recitals
A. The NISP Enterprise is developing a water project (the "Project") for the purpose of
developing a new reliable water supply for the beneficial use of the Participant and other
entities.
B. Overall Project costs will be divided among the entities that participate in the Project.
C. The First, Second, and Fourth Phases of the Project, and years one through six of the
Third Phase, have been completed.
D. The Third Phase, Years 7 through 18 (hereinafter referred to as "Phase 3A"), will consist
of further agency consultation, permitting with the U.S. Army Corps of Engineers and
other agencies, compliance with the National Environmental Policy Act and other
requirements for federal permitting, field work, and analysis for permitting, modeling,
and other activities related to designing and permitting the Project.
E. The Fifth Phase of the Project consists of the Glade Reservoir geotechnical investigation
and embankment design advancement, Glade Reservoir Construction Manager/General
Contractor (CM/GC) design involvement, Highway 287 relocation thirty percent design
and CM/GC design involvement, and completion of the Galeton Dam preliminary design.
F. The Sixth Phase involves continued NISP conveyance delivery refinement, South Platte
Water Conservation Project negotiations, land and easement definition and potential
purchase, and potential advancement of time -sensitive mitigation activities.
G. The Seventh Phase involves the development of a NISP Allotment Contract, financial
project planning, legal defense of the Project permits, and overall project administration.
H. It is necessary that the NISP Enterprise pursue Phases 3A, 5, 6, and 7 of the Project at
this time in order to be able to complete the Project on the time schedule desired by the
participants.
Pursuing this Phases 3A, 5, 6, and 7 of the Project on behalf of the participants will
require continued funding from the participants.
Agreement
1. The Participant agrees to participate in Phases 3A, 5, 6, and 7 of the Project, under and
pursuant to the terms and conditions of this Agreement. The Participant acknowledges
that it shares a common interest in development of the Project and that privileged
material may be shared with the Participant from time to time. A description of Phase 3A,
Phase 5, Phase 6, and Phase 7 is included in Exhibit A. Participation in these phases of
the Project in no way obligates the Participant to participate in subsequent phases of the
Project or to continue involvement in the Project in any manner.
2. For the purposes of cost allocation in Phase 3A, Phase 5, Phase 6, and Phase 7, the cost is
based upon the Participant's base requested capacity divided by the total requested base
Project yield. The Participant's initial base requested capacity in the Project is 1,300
acre-feet of water yield. Attached hereto as Exhibit B is a table showing the currently
anticipated permitted capacity in the Project and the pro rata share of the costs of the
Project for 2021 for each Participant. Exhibit B also shows the projected budgets and
projected pro rata shares of the costs of the Project for 2022 and 2023 for each
Participant. The costs covered by this Agreement shall be separate from costs covered by
the NISP Phase I Agreement between the NISP Enterprise and the Participant. The
Participant may request a reduction, but not an increase, in base requested capacity,
which will be implemented by the NISP Enterprise so long as any increased costs of
design, environmental studies, permitting or other matters are paid by the Participant
pursuant to its pro-rata cost basis. If a reduction in the Participant's base requested
capacity is made, the formula for allocation of costs among the participants shall be
changed accordingly so that all participants bear a pro rata share of the Phase 3A, Phase
5, Phase 6, and Phase 7 costs of the Project after the change based on their final base
requested capacities. For purposes of the environmental analysis for the Project, the
Participant's permitted capacity in the Project is 1,300 acre-feet of water yield. In the
event that the Participant's base requested capacity is increased or decreased, the
Participant's permitted capacity shall be increased or decreased in the same percentage as
the percentage increase or decrease of the base requested capacity.
3. The Participant agrees to provide to the NISP Enterprise funds for its pro rata share of the
anticipated 2021 costs necessary for Phase 3A, Phase 5, Phase 6, and Phase 7 of the
Project. The NISP Enterprise estimates that the Participant's pro rata share of the costs of
the Project is $474,500.00 for 2021. The Participant will pay the NISP Enterprise its pro
rata share of these 2021 costs on or before January 15, 2021. The NISP Enterprise will
invoice the Participant for this payment. These estimated costs will not be increased or
exceeded without the prior written approval of the Participant. Participant funds that are
not expended during Phase 3A, Phase 5, Phase 6, and Phase 7 will be rebated back to
N
each participant pro rata based on each participant's contribution of funds to the Project
in Phase 3A, Phase 5, Phase 6, and Phase 7.
4. In the event that the Participant fails to make the payment set forth above at the specified
time, the NISP Enterprise shall have the right to terminate this Agreement and cease all
work on the Project for the benefit of the Participant. The NISP Enterprise shall give the
Participant thirty (30) days' advance written notice of its intention to terminate this
Agreement and cease work on the Project for the Participant's benefit under this
paragraph. The Participant shall have until the end of said 30-day period in which to
make all past due payments in full in order to cure its default hereunder. The Participant
shall in any event be responsible for its pro rata share of the 2021 costs of Phase 3A,
Phase 5, Phase 6, and Phase 7 of the Project actually incurred by the NISP Enterprise up
to the date of termination of this Agreement.
5. The NISP Enterprise agrees to diligently pursue Phase 3A, Phase 5, Phase 6, and Phase 7
of the Project in good faith to the extent that funds therefor are provided by the
Participant under this Agreement and by other participants under similar agreements. By
entering into this Agreement and accepting payments from the Participant, the NISP
Enterprise does not obligate itself to, nor does the NISP Enterprise warrant that it will,
proceed with the Project beyond Phase 7 or that it will construct or operate the Project.
At the end of the Sixth Phase, the NISP Enterprise will determine after consultation with
the participants whether to proceed with the Project. The NISP Enterprise agrees that, if
the participants provide all required funding, if the NISP Enterprise has the ability, and if
the Project is feasible and practical, it will pursue the construction and operation of the
Project if requested to do so by a sufficient number of participants to fully fund the
Project. In the event that the NISP Enterprise decides not to proceed with the Project, it
will so notify the Participant and this Agreement will immediately and automatically
terminate upon the giving of such notice.
6. In the event of termination of the Project, the Participant shall not be entitled to any
return of funds paid to the NISP Enterprise for the Project, unless payments by
participants exceed the NISP Enterprise's costs, in which case a pro rata refund will be
made. In the event of such termination, the Participant shall be entitled to receive copies
of any work products developed by the NISP Enterprise or its consultants on behalf of the
Participant, and NISP Enterprise Board shall, in its sole discretion: (i) convey to the
Participant, as a tenant in common with all other participants who have not been
terminated under paragraph 4 above, a pro rata interest in all real and personal property
acquired by the NISP Enterprise for the Project with funds provided under this
Agreement or similar agreements with other participants; or (ii) disburse to the
Participants the proceeds of any sale of assets in proportion to each Participant's Cost
Share.
7. The Participant shall have the right to assign this Agreement and the Participant's rights
hereunder, with the written consent of the NISP Enterprise, which consent shall not be
unreasonably withheld, to any person or entity that is eligible to receive water deliverable
through the Project and that is financially able to perform this Agreement.
3
8. In the event that this Agreement is terminated for any reason, the Participant shall not be
entitled to any return of any funds paid to the NISP Enterprise for the Project, and the
NISP Enterprise shall have no further obligations to the Participant, except as provided in
Paragraphs 3 and 6 above for those participants who have not been terminated under
Paragraph 4 above.
9. Notwithstanding any other provision of this Agreement to the contrary, the Participant's
maximum financial obligation under this Agreement shall be the payment of $474,500.00
set forth in paragraph 3 above. The Participant shall have the right to terminate this
Agreement at any time. In the event of such termination, each of the parties hereto shall
be immediately released from all obligations recited herein as if this Agreement had not
been entered into, except that the Participant shall be entitled to a return of funds paid to
the NISP Enterprise as provided in paragraph 8 above.
10. In the event that additional costs must be incurred for Phase 3A, Phase 5, Phase 6, and
Phase 7 in 2021, the parties may amend this Agreement in writing to provide for further
payment by the Participant of the costs for 2021. However, the Participant is not
obligated under this Agreement to pay any costs for Phase 3A, Phase 5, Phase 6, and
Phase 7 beyond the costs stated in paragraph 3 above.
11. This Agreement shall be interpreted under the laws of the State of Colorado. Venue for
any disputes concerning this Agreement shall be in the Weld County, Colorado, District
Court.
12. Nothing in this Agreement shall be construed to waive the protections and immunities
afforded the NISP Enterprise and the Participant under the Colorado Governmental
Immunity Act, C.R.S. § 24-10-101 et seq., and any similar or successor statutes of the
State of Colorado.
13. Except for the obligation to pay money, neither party shall be liable to the other party for
any delay or inability to perform its obligations hereunder by reason of acts of God, acts
of the public enemy, riot, civil commotion, insurrection, acts or failure to act of
governmental authorities, war, pandemic, or any other cause or causes beyond the party's
reasonable control.
11. This Agreement is the entire agreement between the NISP Enterprise and the Participant
regarding participation in Phase 3A, Phase 5, Phase 6, and Phase 7 of the Project and
shall be modified by the parties only by a duly executed written instnunent approved by
the Participant and the NISP Enterprise's Board of Directors.
12. This Agreement is subject to approval by the NISP Enterprise's Board of Directors and
shall become binding on the NISP Enterprise only upon such approval.
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The Northern Integrated Supply Project Water
Activity Enterprise
Name: Bradle . Wind
Title: General Manager
The Town of Firestone, a municipal corporation,
acting with and on behalf of the Firestone Water
Activity Enterprise, a government -owned
business within the meaning of Article X, §
20(2)(d) of the Colorado Constitution, organized
pursuant to C.R.S. § 37-45.1-101 et seq., and
owned by the Town of Firestone
By:
Name:
Title:
5
EXHIBIT A
DESCRIPTION OF PHASE 3A, PHASE 5, PHASE 6, and PHASE 7
NORTHERN INTEGRATED SUPPLY PROJECT
Phase 3A consists of a continuation of the permitting work associated with NISP. The work in
2021 will largely be remaining efforts in support of the final 404 permit and Record of Decision,
response to comments on the Final EIS, mitigation development, and continuation of the Larimer
County IGA process. Additionally, there will be work in support of the public information effort
for NISP as well as overall Northern Water administration and legal support.
Phase 5 will consist of the Glade geotechnical investigation and embankment design
advancement and Highway 287 relocation thirty percent design. Additionally, Construction
Management/General Contractors (CM/GC) will be selected for Glade Reservoir and Highway
287 and will assist in design development and cost estimating.
Phase 6 involves the following additional 2021 activities:
• NISP conveyance will continue to be refined including evaluation of Participant flow
requirements, pipeline sizing and route refinement, delivery system exchange potential,
C-BT exchange potential, conveyance cost estimating, and cost allocation methodology
development.
• South Platte Water Conservation Project negotiations will be advanced with the affected
ditch companies and shareholder cooperative agreements will be developed.
• Land and easement requirements will be more specifically identified.
• Mitigation plans will continue to be advanced and time sensitive mitigation activities may
be pursued.
Phase 7 involves the following 2021 activities:
• Project financial planning
• Allotment contract development
• Legal defense of the Army Corps of Engineers 404 permit, the State of Colorado 401
Water Quality Certification, and the Larimer County 1041 Permit.
2
EXHIBIT B
PARTICIPANT YIELD AND COSTS
PHASE 3A, PHASE 5, PHASE 6, and PHASE 7
I Northern Integrated Supply Project
Rev. 2.1
1111812020 '
;Year 2021-2023 Preliminary Preconstruction Budget
Assumes Construction Starting in Oct. 2023
;Item
2021
2022
2023
:Glade Design Activities
$
3,600,000
$
6,100,000
$ 4,700,000
.Glade CMGC Design Support
$
1,400,000
$
4,900,000
$ 300,000
HW 287 Design Activities
$
1,000,000
$
1,000,000
$ 1,000,000
!NISPDelivery Refinement
$
1,000,000
$
1,700,000
$ 1,800,000
River_Intake Predesign and Design
$
300,000
$
300,000
$ 400,000
!Program Management
$
300,000
$
600,000
$ 600,000
Environment&Mitigation
$
2,500,000
$
2,800,000
$ 2,000,000
'Financing Consultant
$
$
100,000
$ 100,000
WQ Sa mpl e Testing
$
200,000
$
200,000
$ 200,000
;Northern Water
$
1,600,000
$
1,700,000
$ 1,800,000
1Lega1
$
400,000
i $
400,000
$ 400,000
,Communications
$
100,000
$
100,000
$ 100,000
:ROW -Land Appraisal/Title/Survey
$
200,000
$
200,000
$ 200,000
Pipeline Easements
$
500,000
$
500,000
$ 500,000
'SPWCP Negotiations
$
200,000
$
200,000
$ 200,000
Contingency/Other (10%)
$
1,300,000
�$
2,100,000 r$
1,400,000
iTotal
$
14,600,000 i $
22,900,000
$ 15,700,000
Project Yield
Percent of
2021
2022
2023
Participant
(Acre-ft)
Project
Budget
Budget
Budget
Central Weld Co. W.D.
3,500
8.75% $
1,277,500
$
2,003,750
$
1,373,750
'Dacono
1,250
3.13%! $
456,250
$
715,625
$
490,625
Firestone
1,300
3.25% $
474,500
$
744,250
$
510,250
;Frederick
2,600
6.50%` $
949,000
$
1,488,500
$
1,020,500
!Eaton
1,300
3.25%' $
474,500
$
744,250
$
510,250
!Erie
6,500
16.25%' $
2,372,500
$
3,721,250
$
2,551,250
Evans
1,200
3.00W $
438,000
$
687,000
$
471,000
I Fort Col l i ns-Loveland. W.D.
3,400
8.50% $
1,241,000
$
1,946,500
$
1,334,500 j
Fort Lupton
21050
5.13%' $
748,250
$
1,173,625
$
804,625
! Fort Morga n
3,600
9.00V $
1,314,000
$
2,061,000
$
1,413,000
Lafayette
1,800
4.50%1 $
657,000
$
1,030,500 $
706,500
Lefthand W.D.
4,900
12 25% $
1,788,500
$
2,805,256
1
f $
1,923,250
IMorgan County Q.W.D.
1,300
3 25% $
474,500
$
744,250
11 $
510,250
`Severance
2,000
5.00% $
730,000
$
1,145,000
$
785,000
Windsor
3,300
8.25% $
1,204,500
$
1,889,250
$
1,295,250
Total
40,000
100.00%: $
14,600,000
$22,900,000
$
15,700,000
7