HomeMy WebLinkAbout23-09 Nineteenth Interim Agmt. Northern Colorado Integrated Supply Project Water Activity Enterprise 1-11-2023RESOLUTION NO.23-09
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO,
APPROVING THE NINETEENTH 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 19 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 Nineteenth 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 Nineteenth 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 11 th day of January, 2023.
ATT ST: \�ESTO/yF TO F FIRE NE, COLORAD0
J �•�rOWN
KrIsti Bashor, Town Clerk *. SEA _ ¢ Drew Alan Peterson, Mayor
J�
`o\,' : • / 0 APPROVED O FORM:
Ot/NTY, G
Ailliam P.qa, Town Attorney
NINETEENTH 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 dbilION202& by and between
the NorthernIntegrated Supply Project Water Activity -Enterprise J
ctivity nterprise, govemment-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 govemment-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 19 (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 final 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 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.
I. Pursuing this Phases 3A, 5, 6, and 7 of the Project on behalf of the participants will
require continued funding from the participants.
Agreement
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 connnon 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 this Agreement
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 2023 for each Participant. Exhibit B also shows the projected budgets and
projected pro rata shares of the costs of the Project for 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 2023 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 $751,270 for 2023. The Participant will pay the NISP Enterprise its pro
rata share of these 2023 costs on or before January 30, 2023. 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
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 tenminate 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 2023 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.
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 as of the date the Project is terminated, 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.
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 entity that is eligible to receive water deliverable through
the Project and that is financially able to perform this Agreement.
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 except as
provided in Paragraphs 3 and 6 above for those participants who have not been
terminated under Paragraph 4 above, and the NISP Enterprise shall have no further
obligations to the Participant.
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 $751,270
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.
10. In the event that additional costs must be incurred for Phase 3A, Phase 5, Phase 6, and
Phase 7 in 2023, the parties may amend this Agreement in writing to provide for further
payment by the Participant of the costs for 2023. 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.
14. 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 instrument approved by
the Participant and the NISP Enterprise's Board of Directors.
15. 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.
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) o%e Coloradq Constitution, organized pursuant to C.R.S. § 37-45.1-101
M
Name:{ W A �r—ki ift
Title: " X%W
THE NORTHERN INTEGRATED SUPPLY PROJECT
WATER ACTIVITY ENTERPRISE
an
Bradley D. Wind, P.E.
General Manager
et seq.
EXHIBIT A
DESCRIPTION OF PIIASE 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
2023 will largely be remaining efforts in support of the final 404 permit and Record of Decision,
potential minor modification of the 404 permit, mitigation development, and continuation of the
Larimer County 1GA 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 Reservoir facility design advancement and necessary
geotechnical work and Highway 287 relocation sixty 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 2023 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 2023 activities:
• Project financial planning
• Allotment contract development
• Legal defense of the Army Corps of Engineers 404 permit, and the Larimer County 1041
Permit.
• Potential activities associated with the City of Fort Collins' 1041 permit process.
EXHIBIT B
PARTICIPANT YIELD AND COSTS
PHASE 3A, PHASE 5, PHASE 6, and PHASE 7
Northern Integrated Supply Project Rev. 2.0 1012112022
Year 2023 Preconstruction Budget
Interim Contract 19
:Item
Updated Cost
'..
Glade Final Design Activities
$10,000,000
Glade CMGC Design Support
$
800,000
HW287 Design Activities
$
2,300,000
NISP Delivery Refinement
$
2,700,000
River Intake Predesign and Design
$
400,000
Galeton Advancement
$
400,000
Environment&Mitigation
$
4,300,000
Financing Consultant/Bond Counsel
$
100,000
WQSample Testing
$
200,000
Northern Water Labor
$
1,800,000
Northern Water Indirect
$
816,000
Legal
$
500,000
Communications
$
100,000
ROW -Land Appraisal/Title/Survey
$
200,000
Pipeline Easements
$
3,000,000
SPWCP Negotiations
$
200,000
Conti ngency/Other (10%)
$
2,800,000
Total
$
30,616,000
Approxi mate Ca r ryover from 2022
$
7,500,000
Total Requested of Pa rti cpa nts for 2023
$
23,116,000
P roi
ect Yi el
Percent of
2023
Participant
(Acre-ft)
Praj ect
Budget
Central Weld Co. W.D.
3,500
8.75°%
$
2,022,650
Dacono
1,250
3A3%.
$
722,375
Firestone
1,300
3.25%
$
751,270
Frederick
2,600
6.50%
$
1,502,540
Eaton
1,300
3.25%
$
751,270
Erie
6,500
16.25%.
$
3,756,350
Evans
1,200
3.00%
$
693,480
Fort Coll ins-Lovel a nd. W.D.
3,400
8.50%
$
1,964,860
Fort Lupton
2,050
5.13%
$
1,184,695
Fort Morgan
3,600
9.00%
$
2,080,440
Lafayette
1,800
4.50%',
$
1,040,220
Lefthand W.D.
4,900
12.25%.
$
2,831,710
Morgan County Q.W.D.
1,300
3.25%.
$
751,270
Severance
2,000
5.00%
$
1,155,800
Windsor
3,300
8.25%
$
1,907,070
Total
40,000
100.00%.
$ 23,116,000
8
APPLICATION TO
NORTHERN COLORADO WATER CONSERVANCY DISTRICT
FOR CANCELLATION OF TEMPORARY USE PERMIT
The Town of Firestone hereby applies for the cancellation of the following Temporary Use
Permit:
Permit Dated
February 10, 2022
Acre -Feet
M
Total Quantity to be Released 04
Dated at Firestone, Colorado this // t& day of 641—n 1laq 2023.
ATTEST:
TOWN IRESTO E
ORDER ON APPLICATION
Application having been made by the Town of Firestone for the cancellation of the above
Temporary Use Permit, and Hearing having been held by the Board of Directors of Northern
Colorado Water Conservancy District, it is hereby ORDERED that the above Temporary Use
Permit be canceled.
Dated the day of 2023.
ATTEST:
Secretary
NORTHERN COLORADO WATER
CONSERVANCY DISTRICT
President