Loading...
HomeMy WebLinkAbout23-79 Approving Settlement Agreement and Release With Central Weld County Water 7-26-2023RESOLUTION NO. 23-79 A RESOLUTION OFTHE BOARD CIS' TRUSTEE S OF THE, TOWN OF FIRESTONE, COLORADO APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETWEENTHETOWN OF FIRESTONE AND CENTWkL WELD COUNTY WATER DISTRICT WIlt"'REAS, on August 2. 2021 theTown of Firestone ("Fown") filed a C ornplaint in Weld County District Court (2021 CV30465 against Central Weld County Water District ("Central Veld") alleging that the 'Fown was entitled to r payment tor improperly charged tap fees and surcharges lor Central Weld's treatment and deliven, of water to the'Foxvn; and WI-11"REAS Central Weld filed ail Answer denying the allegations and tire parties commenced litigation ofthe matter: and WHEREAS, on April 7`2023 the parties participated in a mediation which resulted in a Memorandum ofUnderstandin in which tire parties agreed to a resolution of certain matters as set R.)rth in the Sixth Addendum to the parties Service Agreement which was approved by the Town*s Board of"Frustees by Resolution No, 23-60 on May -24, 2023: and WHEREAS, the parties continued to negotiate and have now proposed a Settlement Agreement and Release (1-Settlernent Agreement-) which resolves all of the remaining ISSUCS between the parties, and WHEREAS under the ternis of the Settlement Agreement the'fown releases Central Weld front any and all claims related to the litigation and upon the parties acceptance of the Settlement Agreement the Town agrees not to bring forth an), litigation regarding its Claims set t'orth in the Complaint., and WHE'REAS, under the conditions of the Settlement Agreement C ' 'entral Weld agrees that the (Settlement "earns set forth therein will be included in the parties next Service Agreement and that the current Service Agreement will be amended to include the Raw Water Dedication, Treatment Provider, Cross Connection, Future Annexation of Current Retail us ornery. Water Tap Fees and Base Charge set forth in the Settlement Agreement. NOW.11JEREFORE, BF, Fl­ RESOI-VED BYTHE BOARD OF TRUSTEES OFTHE TOWN OF' FIRESTONE, COLORADO: 'Fhe Settlement Agreement and Release between the Town of` Firestens: and Clentral Weld (.'ounty `aleDistrict is approved in substantially the sarne form as the copy attached hereto and made a part of` dais resolution and the iklayor is authorized to execute the Agreement on behalf of tyre 'Fown. INTRODI-iCED, READ AND ADOV-141!"D this;4day of 2021 Kirist K. B or,( 'I own Clerh SETTLEMENT AGREEMENT AND RELEASE -0- This Settlement Agreement and Release ("Agreement") is entered into this'ko day of S 2023, berween The Town of Firestone, (-Town") and the Central Weld County Water District ("District"), -rhe I'mvii and the District are also sometimes collectively referred below as the *'Parties" in this Agreement. W14FREAS, the "Yown filed a Complaint, in case number 2021('V30465, alleging the Town overpaid tap fees and surcharges to the District ("Clairns"), WHEREAS, the District denies each and every claini of wrongdoing and impropriety of any kind, however asserted by the'Town, respecting tire claims. WHEREAS, tile Pat -ties enter into this Agreement on as voluntary basis, to resolve all Clauns and disputes that were or could have been advanced in the Complaint, or related to the Claims in the Complaint, IN CONSIDERATION of the mutual and unilateral covenants, obligations, and Promises provided within this Agreement, the:Parties agree as follows - I t IYVENT, The Parties intend this Agreement as to complete and unqualified settlement and release ofallictual and Potential clairns and issues between and among thernselves, including every present or fortner officer, member, director, employee, agent, representative, insurer and attorney of the District related to the Clainis, whether such clairn or issue "a raised b Y the Town prior to the date of the Agreement or not, Through this Agreement, theTown expresses the intent to resolve all existing and potential disputes derived from all prior contact with the District, related to the Clainis. Every actual, existing, known and unknown, as well as, every t0007 �464� 1 � Page I of' potential dispute and claim by or between the Town and each and every released entity and individual described here, whatever or however the nature and basis of any and all such claims, actions and disputes that do or might ever exist, arise or develop at any time in the future from or in connection with the events described respecting the Summons and Complaint, 202 1 CV30465 to the present is encompassed by the scope of this Agreement. 2. RELEASE. For and in consideration of the terms described below and, on the fulfillment of specific conditions set forth in this Agreement, the Town hereby irrevocably, on its own behalf and on behalf of all successors, agents , as well as all assigns, hereby releases, acquits and forever discharges the District and every present or former officer, member, director, employee, agent, representative, insurer, self -insurer, and attorney from any and all existing or possible claims, demands, obligations, suits, judgments, executions, liabilities, actions or causes of action, rights, damages, expenses, costs, attorney fees or compensation of whatsoever nature related to the Claims, Without limiting the generality of the foregoing, this Agreement applies to the Town's discharge of any and all claims or actions in law or in equity against the District for any and all matters asserted, or that could be asserted by the Town, on their behalf or on behalf of any and all of their successors, agents, and assigns up to, on, and following the date that this Agreement is executed and specified conditions set out herein are met, in connection with, related to and arising from the Claims described above. to the Claims. By this Agreement, the Town does not waive any rights to dispute any future breaches of the water transfer agreement or other agreements between the parties, or any rates, capital investment fees, tap fees or other charges set by the District. t00071464-1 jPage 2 of 7 3. COVENANT NOT TO SUE. The Town hereby agrees and covenants, upon the agreement, of the settlement terms contemplated by this Agreement, that it will not sue or assert 0 any federal or state cause of action, at law or in equity, whether before a court of law or an administrative agency, against the District, or any current or former officer, director, shareholder, employee, agent, insurer, representative, or its employees, and all parents, affiliates and subsidiaries, for any claims, causes of action, liabilities, expenses or darnages arising out of any acts by any such person or entity arising out of, or relating to the Claims, or respecting any omissions by the District or any current or former officer, director, shareholder, employee, agent, representative, insurer, or attorney, and all of their affiliates and subsidiaries, to perform acts that were required to be performed prior to, or as of, the date of this Agreement, related to the Claims, whether raised by the Town or not. The Town expressly preserves all rights to dispute any future rates, capital investment flees, tap fees or other charges set by the District. 4. NO ASSIGNMENT AND HOLD HARMLESS AGREEMENT. The Town declares and represents that no other person, firm or corporation received any assignment, subrogation or other right of substitution to any claim or claims made or asserted in connection with this matter, or pertaining to their representation, relationship, association or contact with any released entity or individual, or to any proceeds of such claim(s) obtained or that were capable of being obtained in connection with any claim they made or could make, and that in the event that any entity, person or party released herein is subjected to any other or further claims of any type by any person or entity, under any actual or purported right of substitution, the Town will hold all Parties released herein harmless from any and all such claim(s). (000-71464- 1) Page 3 of 7 5. NO THIRD -PARTY BENEFICIARIES. The Town declares and represents that no other person, firn-i or corporation is a third party beneficiary to any claim or claims made or asserted in connection with this matter, and that in the event that any entity, person or party released herein is subjected to any other or further claim of any type by any person claiming the status as a third party beneficiary of the Town, the Town shall to the extent permitted by law hold all parties released herein harmless, indemnify, and defend said released Parties from any and all such claini(s). 6. SETTLEMENT TERMS. Central Weld County Water District agrees that the following terms will be included in the next water service agreement entered by the parties. Additionally, the parties have agreed to an addendurn to the current water service agreement that includes these terms: A. Raw Water Dedication. The Town shall transfer to the District a mininturn of 112% of the total water metered for treatment and delivery at the Town's master meter(s). B. Treatment Provider. District will treat raw water from water supplies which are owned or available to the Town at Carter Lake and tQ which the Town dedicates to District for treatment at the Carter Lake Filter Plant. These sources include the Town's Colorado Big - Thompson water and Windy Gap water. The District may treat other sources of eligible water (NISP) at its future treatment facilities at the Town's request, subject to an amended or separate agreement. C. Cross Connection. The Town shall install and maintain appropriate back flow prevention devices adjacent to the water meters to prevent water from the Town's water treatment plant from entering District distribution system. D. Future Annexation of Current Retail Customers. Any and all District tap customers receiving water treatment set -vices from the District, which are subsequently annexed to the Town, will remain customers of the District on a retail customer basis and will be served by the District. In addition, any currently annexed customers of the Town which originally acquired potable water by acquiring a water tap from the District, the District will take back as a retail customer. Any customers located in the Town that are served by the District (00071464- 1) Page 4 of 7 will be charged the same rates as all other retail customers of the District. There will be no out -of -District surcharge applied to any customer in the Town, E. Water Tap Fees. Tap fees will be paid to the District only for new water taps that are, relying on dedication of C-13T or Windy Gap raw water. The District will be paid $6,000 per tap for the next 150 Single Family Equivalent taps purchased by the Town after the new service agreement is in effect. This rate shall expire 48 months after the effective date of the new service agreement. For taps purchased beyond number 150 or after 48 months, whichever occurs first, the tap fees paid to the District will match the then -current capital investment fee as duly adopted by the District. The Town shall provide the District with a monthly accounting of water taps issued based on a dedication of C-BT or Windy Gap water in the preceding month. F. Base Charge. The rate for potable water service by the Town to its customers will be set by the Town and shall be the same for each tap served by the Town. 7. INTEGRATION. The Parties understand, acknowledge and agree that this Agreement constitutes the entire agreement of the Parties regarding the subject matter and transactions referred to herein, The Parties understand, acknowledge and agree that the terms of this Agreement are contractual in nature and not mere recitals. & BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, all the successors, assigns, personal representatives and heirs of the Parties. 9. HEAD►INTGS. The headings used in this Agreement are for the convenience of the Parties only. As such, these headings shall not have any legal effect whatsoever or, in any other way, alter or modify the meaning or interpretation of this Agreement. 10. ADDITIONAL ASSURANCES. This Agreement is intended to be self -operative. Notwithstanding the foregoing, the Parties agree that, at the reasonable request of the other Parties, they shalt execute any further documents or instruments reasonably necessary to effectuate the transactions contemplated by this Agreement. {00071464-1 ;Page 5 of 7 11. SEVERABILITY. If any provision of this Agreement should ever be declared to be unenforceable, then the remainder of this Agreement shall continue to be binding upon the Parties. 12. FEES AND COSTS. All Parties to this Agreement shall bear all of their own costs and fees, including all attorney fees, incurred prior to the date this Agreement takes effect, whether or not such fees or costs were incurred in connection with reaching this Agreement. In the event of a dispute arising under this Agreement, the prevailing party in any litigation shall be entitled to recover attorneys' fees and costs. 13. AMENDMENT. This Agreement may not be amended except in a writing setting forth such amendment and executed by the Parties. 14. ENFORCEABILITY, CONSTRUCTION, INTERPRETATION. Any dispute arising out of this Agreement shall be brought in District Court for Weld County. The Parties, through counsel, participated in the preparation of this Agreement, and no rules of construction or interpretation based upon which party drafted any portion ol'the Agreement shall be applicable or invoked. This Agreement shall receive the broadest application and interpretation to support the finality, release and settlement of all past, existing, and future disputes between the parties to this Agreement related to the Claims. 15. AUTHORIZED REPRESENATIVE. The signatory for the Town and the District hereby attests that they are authorized, in their official capacity, to bind the parties to this agreement. 16. EXECUTION IN COUNTERPARTS. This Release Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same document. (00071464-1) Page 6 of 7 TOW�al-l-'-OFF REST F*,. jFjnjo ayw r SUBSCRIBED and SWORN to bef'(.)re nie by the person known to in asihaLk.J.6oen e 2. as the representative for The Town of Firestone, in the County of" wm�State of Colorado, this J4, day of 2021 [SEAt-rhMCpwUm,nUc.4 P b OT otary Public STATE OF COLORADO NOTARY 10 -10184007447 MY COMMI&V-Y4 EXFREEAmqW 1, 2026 My Commission expires: JIVLpi!!k cm CENTRAL NVELD ("OUNTYNVATER DISTRICT SUBSCRIBED and SWORN to before me by the person known to me as as the representative for Central Weld County Water District, in the County of' State of Colorado,, this day of 2023. . ........ [SEAL] Notary Public My Commission expires: 00071464-1 i Page 7 of'7