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HomeMy WebLinkAbout22-87 Accepting Terms & Conditions of New Consolidated Lower Boulder Reservoir & Ditch Company Res. 07-13-2022RESOLUTION N0.22-87 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, ACCEPTING THE TERMS AND CONDITIONS OF AN AMENDED RESOLUTION OF THE NEW CONSOLIDATED LOWER BOULDER RESERVOIR & DITCH CKI7►� 17�►�J WHEREAS, the Company has approved the change of the shares and use of the Shares in a Substitute Water Supply Plan ("SWSP") approved by the State of Colorado pursuant to its bylaws subject to the terms and conditions of the Amended Resolution of the New Consolidated Lower Boulder Reservoir and Ditch Company attached ("Amended Resolution"); and WHEREAS, the Amended Resolution, in order to be effective must be accepted by the Town of Firestone, the owner of certain Shares subject to the SWSP. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, The Town of Firestone accepts the terms and conditions of the Amended Resolution of the New Consolidated Lower Boulder Reservoir and Ditch Company, i Nn substantially the same form as the copy attached hereto and made a part of this resolution. INTRODUCED, READ, AND ADOPTED this 13th day of July, 2022. TOWN OF FIRESTONE, COLORADO Drew Alan Peterson, Mayor ATTEST: APPROVED William P. Hayashi, Town Attorney Amended Resolution of The New Consolidated lower Boulder Reservoir and Ditch Company The Board of the New Consolidated Lower Boulder Reservoir and Ditch Company ("Company") adopts the following Resolution ("Resolution"): 1. On August 31, 2018 the Town of Firestone (the "Town") applied to the Company for approval of a change of water rights represented by shares in the Company, pursuant to Article XI of the By -Laws of the Company ("Bylaws"). The subject of the application are 3.97 preferred shares and 6.667 common shares of the Company represented by stock certificate nos. P86 for the preferred shares and C28 for common shares (collectively "Town Shares") 2. The Town deposited with the Company the funds requested by the Company pursuant to Article 11.4 of the Bylaws. 3. As part of the application ("Application"), the Town submitted a draft Water Court application as revised attached as Exhibit A ("Draft Water Court Application") and a memorandum prepared by employees of Leonard Rice Engineers, Inc., dated July 31, 2018, attached as Exhibit B, and titled "Quantification of Consumptive Use for Lower Boulder Ditch Water Rights Owned by the Town of Firestone." ("LRE Memo"). The Town supplemented the LRE memo with a letter ("Supplemental Letter") attached as Exhibit C addressing certain issues identified by the Company's review engineer. 4. The Board has been advised by its counsel, Lyons Gaddis, and engineering firm, Deere & Ault, concerning the Application. 5. The Board approves the Application with those limitations, terms and conditions set forth in the Application. the LRE Memo and the LRE Supplemental Letter, subject to the following conditions: An application filed in the Water Court and any decree entered by the Water Court shall be no less restrictive on the Town, and no more restrictive on the Company, than is set forth in the Draft Water Court Application, the LRE Memo and the LRE Supplemental Letter. Likewise, any Substitute Water Supply Plan (SWSP) submitted by the Town shall be no less restrictive on the Town, and no more restrictive on the Company, than is set forth in the Draft Water Court Application, the LRE Memo and the Supplemental Letter. Pursuant to Article 11.4 of the Bylaws, the Town must reimburse the Company for all legal and engineering fees incurred by the Company in this review process and in the related Water Court litigation and any following appeals or other related proceedings. • The Company shall file a Statement of Opposition to the Town's application filed in Water Court seeking to change the Town Shares. The Company and Applicant shall stipulate, prior to any scheduled trial in this matter, to a proposed decree that meets all of the conditions of this approval. • All of the Town Shares and water rights subject to this application shall be diverted into the Lower Boulder Ditch/South Platte Supply Canal ("Canal") at the headgate of the Canal. No change in point of diversion is approved. • In an application filed in water court and the ensuing litigation, the Town shall, in all instances, maintain all of the proposed uses included in Section 4.A. on page 2 of the draft application, except pursuant to express written approval by the Board. • Water attributable to the Town Shares shall be delivered to: i. The Coal Ridge Ditch at the "Saddle," which point being the point where the Lower Boulder Ditch becomes the Coal Ridge Ditch in the NW 1/4 of Section 25, Township 2 North, Range 68 West of the 61h P.M. in Weld County, Colorado; ii. Godding Hollow, using an existing turnout, as rehabilitated and approved by the Company, or a new turnout structure as approved by the Board in the NE 1/4 of Section 2, Township 1 North, Range 68 West of the 61h P.M. in Weld County, Colorado, or iii. At such other diversion points as approved by the Company in writing. • Deliveries shall be made to the Town as a result of the ownership of the Town Shares shall be in the same manner as deliveries to any other shareholder, shall be made pursuant to and subject to the Company Bylaws and Rules and Regulations and shall include a reduction for transit or seepage loss and contract reservation and also be subject to volumetric limits as contained in the Draft Water Court Application, the LRE Memo, the LRE Supplemental Letter and as set forth in any decree approving the change of use of the Town's Shares. • When the Town is not taking delivery of the water available to the Town Shares, that water shall remain available for diversion by the Company and use by the other shareholders as occurred historically. In order to maintain the mutual sharing practice, the Company does not agree to the inclusion of a "turn back" or "bypass" of that water at the headgate of the Canal, or from any other place on the Canal. A turn -back provision includes decree terms that require return without use of some or all amount of water available to the Town's Shares because volumetric limits have been reached or when the Town is not requesting or does not need delivery of water available to the Town's Shares. A "bypass" provision includes decree terms that require water available to the Town's Shares to be left in the river without diversion into the Canal, or imposes volumetric limits on river headgate diversions by the Company under water rights adjudicated to the Lower Boulder Ditch. If such a "turn back" or "bypass" provision is imposed by the Court, this approval shall be revoked, and the Town shall withdraw its application for change of water rights. This condition is in accordance with all previous changes of shares of the Company where water attributable to the shares changed has been available for diversion and use by other shareholders in the Company at any time the changing shareholder is not taking said water, including the City of Lafayette changes in 80CW468, 90CW 108, and 97CW 195; the City of Boulder change in 94CW284; and in 84CW308/309, the application of Boulder Valley Farm, Inc. and Belvin. • Should an SWSP Approval include a "turn back" or "bypass" requirement that would be activated if and when the maximum monthly or annual volumetric limits are reached, the Town agrees to cease requesting or taking delivery of water attributable to any of the Town Shares if and when deliveries reach 90% of a volumetric limit at least until the end of the period for which the 90% threshold has been reached for the applicable volumetric limit. The result shall be that the Company and the Town will not have to "turn back" or "bypass" any of the water attributable to the Town Shares which result is consistent with the Bylaws of the Company, including Article 11.5. Should an SWSP Approval include a "turn back" or "bypass" requirement that requires a "turn back" or "bypass" at any time the Town is not taking delivery of water attributable to any of the Town Shares included in the SWSP, the Town agrees to withdraw the SWSP Application. • The Town does not have the ability to call for delivery of any C-BT units for which the contract is titled in the Company. • In order for this approval to be effective, the Town must accept all of the above terms and conditions in writing. • If any new measuring devices are required as a result of the change of the Subject Shares, Applicant shall first submit to the Board a written request for permission, including plans for the device stamped by a Professional Engineer licensed in Colorado. Applicant agrees to reimburse the Company for legal and engineering fees incurred by the Company in reviewing the request and plans. • The obligations of this approval shall survive the entry of any decree approving the use of the Town Shares in a change of water right, and shall be a covenant running with the shares. • The terms and conditions set forth in this Resolution shall run as covenants with the Town Shares and shall bind the Town's assigns, successors, heirs, and other future transferees and owners of the Town Shares. If the Town or any assigns, successors, heirs or other transferees proposes to modify the delivery, use, engineering, or Water Court application approved herein, other than a substitution of parties in the Water Court application, then Company approval under the Company's Bylaws shall be necessary for such modifications. • If an application to change the Town Shares consistent with this Resolution is not filed in Water Court within one year of the date this Resolution is accepted by the Town, then this approval shall terminate and any change of use of the Town Shares shall require a new application to the Company. • The venue for any dispute under this Resolution shall be Water Court for District Court No. 1. • The Company shall not deliver any water to the Town that is otherwise available by virtue of the Town Shares at any time when Town is not in compliance with the terms of this Resolution. • Should any term of this Resolution be held invalid or unenforceable, such determination shall not render the remaining terms of this Resolution invalid or unenforceable unless to do so would cause the Resolution to fail of an essential purpose. I, Angela R. Swanson, hereby certify that the above Resolution was adopted by the Board of the Company on U 1 , 2022 6a, uq-- AngelA. Swanson, Secretary/Treasurer The New Consolidated Lower Boulder Reservoir and Ditch Company