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HomeMy WebLinkAbout 19-47 Left Hand Water Dist IGARESOLUTION 19-47 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND LEFT HAND WATER DISTRICT REGARDING WATER SERVICE WHEREAS, the Town of Firestone (the "Town") has extended, by annexation, its municipal limits into areas generally located west of Interstate Highway 25 ("I-25") that are currently serviced by the Left Hand Water District (the "District"), and which are located within the District's jurisdictional boundaries; and WHEREAS, the Town desires for the District to continue to provide water services to properties located in such areas west of I-25 that have, or may become, annexed into the Town, and the District desires to remain as the sole water provider to such properties; and WHEREAS, Section 29-1-201 et seq., C.R.S., as amended, authorizes the Parties to cooperate and contract with one another with respect to functions lawfully authorized to each of the Parties. and such cooperation and contracting is authorized as set forth in Article XIV, Section 18 (2) of the Colorado Constitution; and WHEREAS, the Town and the District desire to enter into an Intergovernmental Agreement to: (a) provide for the furnishing of continuing and new water service by the District to those properties lying west of I-25 that have been, or may be, annexed into the Town, which are or may be located within both the Town's municipal boundaries and the District's boundaries, but outside the service area of Central Weld County Water District and Little Thompson Water District; (b) provide for the furnishing of new water service by the District to properties lying within both the Town's municipal boundaries and the Longs Peak Water District's service area, in the event Longs Peak Water District consents to the District providing such water service; and (c) set forth their mutual understandings, terms and conditions regarding the provision of water service contemplated herein. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Intergovermmental Agreement between the Town of Firestone and Left Hand Water District Regarding Water Service 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 Intergovernmental Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this 12th day of June, 2019. TOWN OF FIRESTONE, COLORADO IV 14 L i WA, M/ bi Sindclar, Mayor ATT ST: Leah Vanarsdall, Town Clerk Town Attorney 1. PARTIES. The parties to this Intergovernmental Agreement Regarding Water Service ("Agreement") are the LEFT HAND WATER DISTRICT, a C.R.S. Title 32 special district ("District") and the TOWN OF FIRESTONE, a Colorado municipal corporation ("Town"). 2. RECITALS AND PURPOSES. Town has extended, by annexation, its municipal limits into areas serviced by the District and which are located within the District's jurisdictional boundaries. This area is generally located west of Interstate Highway 25 ("k25"). The Town has previously executed agreements with Central Weld County Water District and with Little Thompson Water District regarding the provision of water services within other areas of the Town that are located east of k25. Pursuant to §32-1-502, C.R.S., the Town has the legal right to exclude annexed properties from this District provided that the Town agrees to provide water service to such areas and the Weld County District Court approves a plan that provides for the disposition of the District's assets and the discharge of District indebtedness that was incurred to service the annexed area. The Town desires to continue to have the District as the sole potable water provider for areas lying west of k25 that may be annexed into the Town and located in the District and the District desires to remain as the exclusive water provider to such area. The purpose of this Agreement is to provide for the provision of water service to those properties lying within both the District and the Town's municipal boundaries lying west of k25 and outside of the service area of Central Weld County Water District and Little Thompson Water District, and to designate the District as the Town's water provider in such area on the terms and conditions set forth herein. Notwithstanding the foregoing, the District may also provide service to those properties within the Town's municipal boundaries within the service area of the Long Peak Water District with the consent of Longs Peak Water District. Accordingly, in consideration of the mutual covenants and agreements set forth herein, the parties agree in accordance with the authority granted each pursuant to Part 2 Article 1 Title 29 C.R.S. to the following provisions, terms, and conditions. 3. TERM. In recognition of the need for long range planning, and the cost and expense of capital construction, water rights acquisition, storage, treatment and transmission, this Agreement shall commence upon execution by the parties and shall continue thereafter for a period of 15 years. Thereafter, this Agreement shall be automatically renewed for a an additional 15 year term unless either party gives three year advance written notice to the other party of its intent to terminate this Agreement. 4. AREA OF APPLICABILITY, This Agreement shall be applicable to the parcels of real property that have been or that will be, annexed into the Town's corporate limits and that are located west of k25, and that lie within the District's boundaries (regardless of whether that parcel is currently undeveloped and not currently serviced by the District), as those District boundaries exist now or may hereafter be legally altered. For purposes of this Agreement, the parcels lying within any area described herein this paragraph shall be referred to as "Subject Property." 5. CONTINUATION OF SERVICE; NEW SERVICE BY DISTRICT. 5.1. The parties acknowledge and agree that if any Subject Property is annexed into the Town's corporate limits, the District shall continue to provide potable water service directly to the Town's existing developed parcels within the Subject Property and to provide potable water to any additional planned development constructed within the Town on and within the Subject Property in accordance with District's rules, procedures and policies. 5.2. Service, including all tap fees, water charges, assessments, line charges and all other fees and charges of the District shall be in accordance with the District's applicable rules, procedures and policies. District agrees that all of its customers within the Subject Property shall be charged the same base rates as all other users within the District subject to applicable surcharges and fees pursuant to the District's rules, procedures and policies. 5.3. Town shall not require any property owner, developer, or ultimate user within the Subject Property to purchase any potable water tap, directly or indirectly, from the Town. However, if a non -potable irrigation system is to be installed to serve parks, entry features, or other common areas, within the Subject Property the Town reserves the right to require property owners, developers or users to provide to, or purchase from, the Town non -potable water for irrigation purposes provided that all non - potable irrigation systems are constructed and administered in compliance with applicable state health department and District rules, procedures, and policies. Engaging in such non -potable water activities shall not be deemed to be in violation of paragraph 9 herein, including Town's right to collect non -potable water service tap fees and non -potable water use charges. District acknowledges that as a standard practice of annexation, the Town's annexation agreements include a right of first refusal for water rights appurtenant to the property being annexed and that such provision is not in conflict with this Agreement. 6. NON -APPLICABILITY OF CENTRAL WELD AGREEMENT. Town acknowledges that service to the Subject Property is subject to a Service Territory Contract between District and Central Weld County Water District preventing Central Weld County Water District from providing service to the Subject Property, 7. MAINTENANCE, BILLING, The District shall be solely responsible for construction, installation and maintenance of all of its potable water lines and facilities within the Subject Property pursuant to its rules, procedures, and policies. The District shall also be solely responsible for its billings and collections of its receipts for all of its customers lying within the Subject Property. !3. JOINT COOPERATION AND PLANNING, The Town acknowledges that the District has expended funds for capital construction, water rights acquisition, storage, treatment and transmission to serve the Subject Property and that the District continues to meet its legal obligation to serve the Subject Property through long-range facility planning, including participation in various projects sponsored by the Northern Colorado Water Conservancy District. In order to adequately plan for future development, the parties shall, on a periodic 2 basis, but in no event no less than annually, jointly confer and discuss planning issues which are of mutual concern to both parties, including the future location and sizing of water lines that could be used to serve property within the Town's planning area. In addition: 8.1. Town shall include in all its annexation agreements for parcels within the Subject Property a recital with respect to the provision of water service from the District pursuant to this Agreement. 8.2. Every three years the District shall provide Town with a current map of the District's lines and facilities lying within that portion of Weld County serviced by District or lying within the District's boundaries. 8.3. The parties shall meet and confer regarding all future major potable or raw water projects, including without limitation, expansion of existing treatment plants, future treatment plants or transmission lines, and regional water treatment plants or storage projects sponsored by water conservancy districts, water districts, or other third parties that could be of benefit to the District in meeting its obligations to service the Subject Property. District acknowledges that Town is currently participating in the development of a water treatment plant east of IW25 located on the St. Vrain River, The Town's use of this facility shall be for service to its retail customers east of k25, outside of the service boundaries of District. Town has previously disclosed its intent to develop such a water treatment facility to District and had sought District's interest in participating in the facility, which was declined by District. 8.4. The Town shall promptly advise the District of any proposed major developments that would require potable water volumes in excess of the District's master plan. 8.5. In consideration of District being the supplier of water within the Subject Property, District shall reserve to Town the first right of negotiation for the second and any subsequent uses of any fully consumable water rights used for service by District within the Subject Property, including, but not limited to, Windy Gap Project water and Northern Integrated Supply Project water. Upon successful negotiation of terms the District and Town may enter into a separate agreement pertaining to such second and subsequent use water rights. 9. EXCLUSIVE PROVIDER OF SERVICES; NOTICE; RATES. 9.1 During the term of this Agreement, Town shall not provide potable water services, either directly or indirectly, through other service contracts or by way of agreements with other water providers, public or private, for the Subject Property. Subject to the terms and conditions of this Agreement, the Town hereby designates the District as the exclusive and sole provider of potable water for the Town's residents, property owners, and users within the Subject Property, 9.2 Notwithstanding the provisions of paragraph 9.1, above, in the event of development within the Subject Property that has been approved or is being 3 considered for approval by the Town and which has a quantified potable water requirement that the District is unwilling or incapable of providing within a reasonable time through system improvements or upgrades, the Town may give written notice to the District of its intent to provide water to such development by alternative means. Within 90 days of receipt of such written notice, the District shall respond in writing, notifying the Town that it has taken one of the following courses of action: a. agreeing to provide the required improvements or upgrades with a statement of the projected date of completion, such improvements or upgrades to be financed and constructed pursuant to then applicable District rules, procedures, and policies or by special expenditures by the District as determined by its Board of Directors; or b. agreeing to provide such service by and through agreements with, or utilizing the water treatment and/or distribution facilities of, other potable water providers; or c. waiving its right to be the exclusive potable water provider to such development without waiving the District's rights under this Agreement with respect to other development within the Subject Property; or d, agreeing that the new development may be excluded from the District upon a determination that such development may be serviced directly by the Town at a substantially lower cost and expense to the developer and such service is critical to the commencement of the development. 9.3 The District represents and agrees that the base rate it currently charges for potable water service within the Subject Property is the same base rate that is applicable throughout the District and that in the future, it will not charge any differing base rate except that rate which is applicable throughout the District. The parties acknowledge that the District reserves the right to impose a surcharge on such base rate that may be required for repayment to third parties (or the District) which may have, or will in the future, pay for the construction of upgrades, improvements, extensions, and other facilities that are necessary to service the specific development within the Subject Property. 10. LEVEL OF SERVICE. The parties acknowledge that municipal level water service requires certain fire flows and other utility related standards and requirements. Town agrees to not approve new development in the Subject Property if that area lacks sufficient fire flows for the type of development planned absent a requirement or condition to land use approval that an appropriate party finance and/or construct such improvements to connect to the District's system to meet the level of service required by all applicable building and fire codes, as well as other municipal requirements. The District agrees that it shall provide service to the Subject Property at least at a level that does not diminish the required flows below such established levels provided by such improvements. 11.1. To the extent permitted by law, each party agrees to indemnify and hold harmless the other party, (including that party's officers, employees, agents, and servants) and to pay any judgments rendered against said party or persons because of any suit, action, or claim asserted by any third party that is caused by, arising from, or due to the acts or omissions of the indemnifying party, its officers, employees, agents, consultants, contractors, and subcontractors, and to pay to the indemnitee or indemnitees their reasonable expenses, including, but not limited to, reasonable attorneys' fees, court costs, and reasonable expert witness fees, incurred in defending any such suit, action or claim; provided, however, that parties' respective obligation shall not apply to the extent said suit, action or claim results from any acts or omissions of the indemnified party (including its officers, employees, agents or servants). 11.2. Nothing in this Agreement shall be construed as a waiver by either party of any rights, immunities, privileges, monetary limitations to judgments, or defenses available to the parties by the Colorado Governmental Immunity Act, Sec 24-10-101, et seq., C.R.S., as it may be amended from time to time. 12. ASSIGNMENT. This Agreement and any rights hereunder shall not be assigned, sold, hypothecated, pledged or otherwise transferred by the Town or District in whole or in part, without the prior written consent of the non -assigning party which consent shall not be unreasonably withheld, delayed or denied. The non -assigning party may require that any assignee provide written assurances to the non -assigning party that assignee will comply with the terms and conditions of this Agreement and consent may be withheld or conditioned upon receipt of such assurance. Merger, consolidation or acquisition of all of the waterworks, facilities, and assets of the District by another potable water provider shall not be considered as an assignment of this Agreement. 13. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure to the benefit of and be binding upon successors and assigns of the Town and the District. 14. ADDITIONAL DOCUMENTS OR ACTION. The parties agree to execute any additional documents and to take any additional action necessary to carry out this Agreement. 16. NOTICE. Any notice, consent, authorization or other action which either party is required or may desire to give to the other party pursuant to this Agreement shall be effective and valid only if in writing, signed by the party giving such notice, and personally delivered to the other party, or sent by registered or certified mail of the United States Postal Service, return receipt requested, postage or delivery charges prepaid, addressed to the other party as follows: f•~ For the Town of Firestone: Director of Community Resources P.O. Box 100 151 Grant Ave. Firestone, Colorado 80520 For the District: General Manager Left Hand Water District PO Box 210 NMot, CO 80544 Bradley Grasmick, Town Water Attorney Lawrence Jones Custer Grasmick, LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, Colorado 80534 Scott Holwick Lyons Gaddis PO Box 978 Longmont, CO 80502-0978 Or, to such other address or the attention of such other persons) as hereafter designated in writing by the applicable parties in conformance with this procedure. Notices shall be effective upon mailing or personal delivery in compliance with this paragraph. 16. COMPLETE AGREEMENT. This instrument embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein; and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties hereto. Except as provided herein there shall be no modifications of this Agreement except as agreed upon in writing, executed by the parties. Subject to the conditions precedent herein this Agreement may be enforced in Weld County District Court. �.7. MODIFICATION AND WAIVER. No modification of the terms of this Agreement shall be valid unless in writing and executed with the same formality as this Agreement, and no waiver of the breach of the provisions of any section of this Agreement shall be construed as a waiver of any subsequent breach of the same section or any other sections that are contained herein. 1.8. ALTERNATIVE DISPUTE RESOLUTION. In the event of any dispute or claim arising under or related to this Agreement, the parties shall use their best efforts to settle such dispute or claim through good faith negotiations with each other. If such dispute or claim is not settled through negotiations within 30 days after the earliest date on which one party notifies the other party in writing of its desire to attempt to resolve such dispute or claim through negotiations, then the parties may agree to attempt in good faith to settle such dispute or claim by mediation conducted under the auspices of a recognized established mediation service within the State of Colorado. Such mediation shall be conducted within 60 days following either party's written request therefore. If such dispute or claim is not settled through mediation, then either party may initiate a civil action in the District Court for Weld County. f� 19. A'TTORNEY TEES. In the event of default of any of the provisions contained in this Agreement, the defaulting party shall pay the other party's reasonable attorney's fees and costs incurred as a result of the default. 20. SEVERABILITYa If any section, subsection, sentence, clause, phrase, or portion of this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portion hereof. 21. COUNTERPARTS. This Agreement may be executed in several counterparts and, as so executed, shall constitute one Agreement, binding on all the parties even though all the parties have not signed the same counterpart. Any counter part of this Agreement which has attached to it separate signature pages, which altogether contain the signatures of all the parties, shall be deemed a fully executed instrument for all purposes. Leah Vanarsdall, Town Clerk DATED: ,2019 Attest: Mayor Bobbi Sindelar LEFT' HAND WATER DISTRICT fU