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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/04/2003 - RESOLUTION 2003-013 AUTHORIZING THE MAYOR TO EXECU AGENDA ITEM SUMMARY ITEM NUMBER: 24 DATE: February 4, 2003 FORT COLLINS CITY COUNCIL STAFF: Mike Smith Brian Janonis SUBJECT: Resolution 2003-013 Authorizing the Mayor to Execute an Intergovernmental Agreement with the Northern Colorado Water Conservancy District Acting by and through the Pleasant Valley Pipeline Water Activity Enterprise and the City of Fort Collins Water Utility Enterprise for Construction of the Pleasant Valley Pipeline Project and Related Allotment of Pipeline Capacity. RECOMMENDATION: Staff and Water Board recommend adoption of the Resolution. FINANCIAL IMPACT: Funds for this project are budgeted in the Water Fund as part of the Water Treatment Facilities Master Plan, and have been appropriated for 2003. EXECUTIVE SUMMARY: The Pleasant Valley Pipeline Project is included in the Water Treatment Facilities Master Plan that was approved by City Council in June 1997. When constructed, the pipeline will convey additional water from the Poudre River to the City's Water Treatment Facility on west LaPorte Avenue. Additional pipeline capacity will increase the capability and reliability of our Poudre River delivery system (originally built in 1927). The Pleasant Valley Pipeline Project is a regional project with the City of Fort Collins, City of Greeley and the Tri- Districts. The City's allotted portion of the pipeline capacity is 60 mgd. Previous work including preliminary design, final design, environmental studies, permitting and acquisition of right-of-way have already been carved out pursuant to a prior Intergovernmental Agreement with the Northern Colorado Water Conservancy District, which was approved by City Council with the adoption of Resolution 99-57 in May 1999, and by the Enterprise Board of the Water Utility Enterprise with the adoption of Resolution No. 4 at the same time. The Northern Colorado Water Conservancy District has selected Barnard/High Country Construction to build the pipeline. With the 2003 budget appropriation, the Water Utility has sufficient funds ($11,572,309) to complete the project. The schedule calls for the District to issue the Notice to Proceed as soon as possible so that the project can be completed in time for the 2004 Poudre River runoff. The Enterprise Board of the Water Utility Enterprise will also be considering a resolution approving the Intergovernmental Agreement. . RESOLUTION 2003-013 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT WITH THE NORTHERN COLORADO WATER CONSERVANCY DISTRICT ACTING BY AND THROUGH THE PLEASANT VALLEY PIPELINE WATER ACTIVITY ENTERPRISE AND THE CITY OF FORT COLLINS WATER UTILITY ENTERPRISE FOR CONSTRUCTION OF THE PLEASANT VALLEY PIPELINE PROJECT AND ALLOTMENT OF PIPELINE CAPACITY WHEREAS, by Resolution 97-88 the City Council adopted the Revised Water Treatment Facilities Master Plan; and WHEREAS,a new raw water transmission pipeline from the Poudre River to the City's water treatment facility is included as a part of the master plan; and WHEREAS,the City of Fort Collins,the City of Greeley,and three local water districts have been working together with the Northern Colorado Water Conservancy District("NCWCD")toward the shared use of a new "Pleasant Valley Pipeline" ("PVP"), which would avoid duplication of similar pipelines; and WHEREAS,the parties cooperatively evaluated the feasibility of the PVP in what has been called Phase 1 of the Project; and WHEREAS, NCWCD has formed the "PVP Enterprise" to design, construct, own, and operate the pipeline for the City and the other participants; and WHEREAS,in May 1999,the City Council and the Water Utility Enterprise Board adopted resolutions authorizing an intergovernmental agreement for Phase 2 of the Project,which included environmental studies, design, permitting, right-of-way acquisition and related work; and WHEREAS, the PVP Enterprise has now completed Phase 2 pursuant to that intergovernmental agreement, and is ready to proceed with construction of the PVP; and WHEREAS, the terms and conditions for construction of the PVP, and for payment for construction and ongoing maintenance costs and allotment of PVP capacity are set forth in the "Allotment Contract with the Northern Colorado Water Conservancy District, Acting By and Through the Pleasant Valley Pipeline Water Activity Enterprise and the City of Fort Collins and the City of Fort Collins Water Utility Enterprise For Capacity in the Pleasant Valley Pipeline," a copy of which is attached hereto as Exhibit"A"and incorporated herein by reference(the"Agreement"). NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Council hereby approves the Agreement and authorizes the Mayor to execute the Agreement on behalf of the City,together with any modifications or amendments thereto determined by the City Manager,in consultation with the City Attorney,to be necessary or appropriate to protect the interests of the City. Passed and adopted at a regular meeting of the City Council of the City of Fort Collins this 4th day of February, A.D. 2003. Mayor ATTEST: City Clerk EXHIBIT "A" ALLOTMENT CONTRACT WITH THE NORTHERN COLORADO WATER CONSERVANCY DISTRICT, ACTING BY AND THROUGH THE PLEASANT VALLEY PIPELINE WATER ACTIVITY ENTERPRISE AND THE CITY OF FORT COLLINS AND THE CITY OF FORT COLLINS WATER UTILITY ENTERPRISE FOR CAPACITY IN THE PLEASANT VALLEY PIPELINE This Allotment Contract dated this day of , 2003, is entered into by and between the the City of Fort Collins, Colorado, a municipal corporation, whose address is 300 LaPorte Avenue,Fort Collins, Colorado 80521 (hereinafter called "Allottee"), and the City of Fort Collins Water Utility Enterprise (a government-owned business within the meaning of Article X, Section 20(2)(d), of the Colorado Constitution, organized pursuant to C.R.S. §§ 37- 45.1-101 et seq.), whose address is 700 Wood Street,Fort Collins, Colorado 8052 1(hereinafter called "Allottee Enterprise"), and the Northern Colorado Water Conservancy District (a quasi- municipal entity and political subdivision of the State of Colorado), acting by and through the Pleasant Valley Pipeline Water Activity Enterprise (a government-owned business within the . meaning of Article X, Section 20(2)(d), of the Colorado Constitution, organized pursuant to C.R.S. §§ 37-45.1-101 et seg. , whose address is 1250 North Wilson Avenue,P.O..Box 679, Loveland, Colorado 80539 (hereinafter called the "PVP Enterprise") (collectively referred to herein as the "parties"), for an allotment of capacity in the PVP Enterprise's Pleasant Valley Pipeline under and pursuant to the following terms and conditions. RECITALS A. The PVP Enterprise is developing a municipal water supply conveyance system known as the Pleasant Valley Pipeline to provide an additional raw water delivery conduit for the City of Fort Collins, the City of Greeley,the East Latimer County Water District,the Fort Collins-Loveland Water District and the North Weld County Water District. B. Capacity in the Pleasant Valley Pipeline will be allocated to users separately for Summer and Winter delivery periods. Under normal operating conditions,water in the pipeline will flow from the Munroe Canal Turnout toward the Fort Collins Water Treatment Facility and Soldier Canyon Filter Plant during the Summer delivery period, and from the Soldier Canyon Dam Outlet facilities toward the Greeley Bellvue Water Treatment Plant.during the Winter delivery period. • DRAFT January 24,2003 C. The purpose of this Allotment Contract is to allot to each Participant capacity in the Pleasant Valley Pipeline and to provide the terms and conditions under which the PVP Enterprise will design, own, construct, operate,maintain, repair and replace the PVP Pipeline. AGREEMENT 1. Definitions. The following definitions shall apply herein: a. "Board" shall mean the Board of Directors of the Northern Colorado Water Conservancy District. b. "Contract" shall mean this Allotment Contract dated as set forth above between PVP Enterprise and Allottee. C. "District" shall mean the Northern Colorado Water Conservancy District, a political subdivision of the State of Colorado, and a body corporate with all the powers of a public or municipal corporation,organized and existing by virtue of C.R.S. §§ 37-45-101 et sea., which owns and controls the PVP Enterprise. d. "District water" shall mean all water that accrues to the use of the District or its allottees by reason of the Colorado-Big Thompson Reclamation Project. e. "Entity" shall mean any quasi-municipal corporation, limited liability company, municipal corporation, public corporation,joint venture,partnership,person, mutual ditch company, water users' association or private corporation. f. "Fiscal Year" shall mean the fiscal year of the PVP Enterprise. Currently,the fiscal year of the PVP Enterprise begins on October 1 and ends on September 30 of the following calendar year. However,the PVP Enterprise may change the Fiscal Year during the tens of this Contract by giving written notice thereof to the Participants. g. "MGD" shall mean millions of gallons of water per day measured over a 24-hour period beginning at 12 midnight and terminating at 12 midnight on the next day. h. 'Initial Participants" shall mean the Allottee and any other Entity with an enforceable contract for an allocation of capacity in the Pipeline executed on or before February 14, 2003. Attached hereto as Exhibit A and incorporated herein by this reference is a list of all Initial Participants in the Pipeline,their respective initial allotted capacities in MGD,their respective initial points of delivery from DRAFT January 24, 2003 Page 2 of 17 the Pipeline and the minimum hydraulic elevation at such delivery points. i. "Munroe Canal Turnout" shall mean the modifications to the existing North Poudre Supply Canal and Diversion Works, also known as the Munroe Gravity Canal, a canal owned by the District and operated and maintained by the North Poudre Irrigation Company, to allow continued deliveries of water through the North Poudre Supply Canal and deliveries to the Pipeline. j. "Participant" shall mean the Allottee and any other Entity with an enforceable contract for an allocation of capacity in the Pipeline which Entities may change from time to time as permitted hereunder. k. "Pipeline" shall mean the Pleasant Valley Pipeline that has been designed, bid and,pursuant to the terms of this Contract, constructed by the PVP Enterprise, which shall include the Munroe Canal Turnout, and the right to receive water deliveries from the Soldier Canyon Dam Outlet facilities of Horsetooth Reservoir and the Munroe Canal Turnout to the Pipeline. 1. "Segment" shall mean an individual segment of the Pipeline for which the design capacity is constant.The Pipeline is divided into a number of segments. Attached hereto as Exhibit B and incorporated herein by this reference is a description of each segment,including a description of the point of beginning and point of termination of each segment and a cost allocation within each segment and the allotted capacity in MGD in each segment for each Initial Participant. M. "Soldier Canyon Dam Outlet facilities" shall mean the intake, valves, control structure, and 54-inch steel outlet pipe through the Soldier Canyon Dam to a point 100 feet downstream of the control structure. n. "Subdistrict" shall mean the Municipal Subdistrict,Northern Colorado Water Conservancy District, a political subdivision of the State of Colorado, and a body corporate with all the powers of a public or municipal corporation, organized and existing by virtue of C.R.S. §§ 37-45-101 et sea. o. "Subdistrict water" shall mean the quantity of water acquired and obtained by the Subdistrict from the development and construction of the Windy Gap Project pursuant to applicable state law, and which is deliverable to Subdistrict allottees. p. "Summer delivery period" shall mean the period from April 1 to October 31, inclusive, of each year. q. "Winter delivery period" shall mean the period from November 1 of each year to March 31 of the following year, inclusive. DRAFT January 24, 2003 Page 3 of 17 2. Allocation of Capacity. a. The Allottee shall have the perpetual, exclusive right to use 60 (Sixty)MGD of capacity in the Pipeline during the Summer delivery period from the Munroe Canal Turnout to its point of delivery at its water treatment plant described in Exhibit A, upon completion of construction thereof. Allottee's water will be delivered to Allottee by PVP Enterprise at Allottee's request during the Summer delivery period on a continuous basis except for disruptions specifically permitted herein and disruptions resulting from emergencies. Allottee shall not have the right to use capacity in the Pipeline allotted to any other Participant without the express permission of the Participant whose capacity is being utilized, except as provided in paragraph 2.d. b. In addition, during the Winter delivery period from the Soldier Canyon Dam Outlet facilities to Allottees point of delivery at its water treatment plant described in Exhibit A, Allottee shall have the perpetual, exclusive right to use 0 (zero) MGD of capacity in the Pipeline,plus 42.5% of the capacity in the Pipeline in excess of the 30 MGD of capacity allocated to the City of Greeley, all upon completion of construction thereof. Allottee's water will be delivered to Allottee by PVP Enterprise at Allottee's request during the Winter delivery period on a continuous basis except for disruptions specifically permitted herein and disruptions resulting from emergencies. Allottee shall not have the right to use capacity in the Pipeline allotted to any other Participant without the express permission of the Participant whose capacity is being utilized, except as provided in paragraph 2.d. C. The flow direction in the Pipeline may be reversed during either the Summer or the Winter delivery period to allow one or more Participants to make efficient use of water supplies available to them;provided that no Participant shall be prevented from using its full allocated capacity during any period. In the event that the Allottee desires to reverse the direction of operation of the Pipeline during any delivery period,it shall make a written request to the PVP Enterprise and all other Participants describing the time at which the reversed operation is requested to begin and end. Within five(5)days after receipt of such written request,the PVP Enterprise and all other Participants shall either consent to or object to such reverse operation in writing, provided that consent to such reverse operation shall not be unreasonably withheld by the PVP Enterprise or any Participant. Differences in the quality of water provided by the Soldier Canyon Dam Outlet facilities and the Munroe Canal Turnout facility shall not be sufficient grounds to object to reverse operations,except when the quality of water provided by a facility is materially degraded from the quality of water historically provided by such facility. DRAFT January 24, 2003 Page 4 of 17 d. Modifications of Pipeline operations may be necessary in the event of an emergency. Emergencies shall consist of disruptions of one or more Participant's water supply sources for any unforeseen reason, including, but not limited to, failure of Pipeline facilities, failure of water supply facilities, or contamination of a Participant's water supply source. If the Allottee experiences an emergency that may require modification of Pipeline operations,it shall immediately give notice of the emergency to the PVP Enterprise and all other Participants accompanied by a description of modifications to Pipeline operations requested by the Allottee. Upon receipt of such notice,the PVP Enterprise shall immediately consult with all Participants regarding the emergency condition and the request for modification of Pipeline operations. After such consultation, the PVP Enterprise shall have the authority to implement the requested modifications of Pipeline operations in whole or in part, so long as such modifications do not limit water deliveries to any other Participant to an extent that would cause an emergency for any other Participant. The Allottee shall use its best efforts to correct conditions causing the emergency and to allow resumption of normal Pipeline operations as soon as practicable. During emergencies,Allottee shall cooperate with all other Participants to maximize delivery of water to all Participants. Such cooperation may consist of modifying flow direction and capacity allocations in the Pipeline, use of alternative water supply sources, and/or cutbacks in deliveries to Allottee's water customers for the duration of the emergency. . e. PVP Enterprise shall provide Allottee with thirty (30) days'prior written notice of any scheduled disruption in the delivery rights of Allottee described herein. Such thirty (30) day notice shall include the date scheduled for initiation and termination of the disruption. Allottee shall respond within fifteen (15) days after receipt of the thirty(30) day notice and such response shall notify PVP Enterprise as to whether the disruption is acceptable or unacceptable. If the scheduled disruption is unacceptable,Allottee shall state conditions under which the scheduled disruption would be acceptable to Allottee. PVP Enterprise shall not proceed in permitting the scheduled disruption unless and until issues raised in the response have been addressed to reasonably assure unimpaired delivery to Allottee's water customers. f. In the event that the Pipeline, after completion of construction, has capacity in excess of the initially allocated capacity("Excess Capacity"), Allottee shall have the perpetual, exclusive right to use a pro rata share of the Excess Capacity at Allottee's point of delivery. The Allottee's pro rata share of the Excess Capacity shall be the Allottee's percentage of the capacity of the Pipeline allocated in this Contract times the total amount of Excess Capacity for the Pipeline. Allottee's perpetual, exclusive right to use Excess Capacity hereunder shall be at no increased cost and shall be subject to Allottee's full compliance with all the terms, • DRAFT January 24,2003 Page 5 of 17 conditions and obligations hereinafter set forth. g. In the event that the Pipeline, at any time after completion of construction, has capacity less than the initially allocated capacity, or less than the initially allocated capacity plus any allotted Excess Capacity, Allottee's capacity in the Pipeline shall be reduced in the amount of Allottee's percentage of the capacity of the Pipeline allocated in this Contract(including any allotted Excess Capacity) times the total amount of capacity for the Pipeline(including any allotted Excess Capacity). This adjustment shall not change Allottee's share of the costs of the Pipeline as determined under paragraphs 5., 6. and 7. h. It is possible in the future that the capacity of the Pipeline may be increased through the construction of pumping plants or other means, which capacity would be above that originally constructed and allocated in this Allotment Contract and similar allotment contracts. All existing Participants at the time of expansion shall have a right of first refusal to participate in the construction of the increased capacity. It is the intention of PVP Enterprise and the Allottee that all future participants in the project to increase capacity of the Pipeline shall pay for their share of the cost of the Pipeline adjusted through the date of the calculation as set forth below. Therefore, the cost of the construction of the increased capacity shall be added to the original cost for construction of the Pipeline,including Individual Segment Specific Costs and Non-Segment Specific Costs, plus interest on such costs based on the Index ,from the date the funds were expended by the Initial Participants through the date of completion of construction of the increased capacity. The total costs for each Segment, as such Segments are defined on Exhibit B, shall be allocated between and among the Participants in the original Pipeline and the participants in the increased capacity project. Participants in the increased capacity project shall make reimbursement to each of the original Pipeline Participants of the amounts necessary to adjust the contributions of the original Pipeline Participants and the increased capacity Participants based upon the new allocation by Segment so that all participants will have paid the same amount per unit of capacity per Segment. i. The right of first refusal set forth above shall require PVP Enterprise to offer to each of the Participants the opportunity to participate in the construction of the increased capacity on terms and conditions substantially similar to all others requesting to participate in such project. Allottee shall have sixty (60) days from the receipt of the final terms and conditions of the participation to respond in writing with regard to its desire to participate. Allottee's right of first refusal shall terminate only as to those contracts for increased capacity which are completed upon terms substantially similar to those offered to Allottee and to which Allottee did not respond with its desire to participate within the sixty-day period. Unless previously terminated pursuant to this paragraph, Allottee's right of first refusal DRAFT January 24,2003 Page 6 of 17 shall terminate on the last day of the 90th year after execution of this Allotment Contract. j. In addition to the allotment of capacity in the Pipeline set out above, Allottee shall have the perpetual right,in combination with other Participants, to utilize reasonable amounts of capacity in the North Poudre Supply Canal to deliver water from the Cache la Poudre River to the Pipeline to the extent that such capacity is not necessary for delivery of water for the North Poudre Irrigation Company under and pursuant to the rights granted to the North Poudre Irrigation Company in the Petition to Northern Colorado Water Conservancy District for Allotment of Water dated December 5, 1945. 3. Use of Capacity and Water. a. Pipeline capacity allotted herein shall be used only for the transmission of: (i) District water or Subdistrict water from Horsetooth Reservoir; (ii) any other water deliverable from Horsetooth Reservoir with the specific approval of the Board and the approval of the Secretary of the Interior of the United States of America or his designee (if Secretarial approval is required by law or contract); (iii) water diverted from the Cache la Poudre River at the North Poudre Supply Canal Diversion Works and conveyed through the North Poudre Supply Canal; or(iv) any other water with the specific approval of the Board; all for the use of Allottee, its customers or other Entities permitted hereunder. All water introduced into the Pipeline from sources other than Horsetooth Reservoir or the Cache la Poudre River shall be of a quality at least equal to the water in Horsetooth Reservoir or the Cache la Poudre River. b. Water delivered through the Pipeline shall only be beneficially used, whether the use is by direct diversion,by exchange or otherwise, in accordance with the terms of this Contract; the Water Conservancy Act of Colorado, C.R.S. §§ 37-45-101 et sec..; C.R.S. § 37-83-106; the rules,regulations and policies of the Board; and the Colorado-Big Thompson Project Repayment Contract between the District and the United States of America dated July 5, 1938, if applicable; or as otherwise allowed with the Board's consent. 4. PVP Enterprise Ownership, Operation and Maintenance. a. The PVP Enterprise shall own, design, construct, operate, maintain, repair and replace the Pipeline, subject to the Allottee's perpetual, vested right to use of that portion of the capacity of the Pipeline allotted herein. To this end the PVP Enterprise shall be responsible for all planning, scheduling, right-of-way acquisition, construction and engineering contracts relating to the Pipeline; any required permits, impact statements and other procedural or substantive matters necessary for completion of the Pipeline; and all operation, maintenance,repair and replacement of the Pipeline. The PVP Enterprise may assign daily operation DRAFT January 24,2003 Page 7 of 17 and routine maintenance of the Pipeline to one or more of the Participants with the written consent of all Participants. b. The PVP Enterprise shall design, construct, operate, maintain, repair and replace the Pipeline in good faith for the benefit of the Allottee and the other Participants. The PVP Enterprise's financial obligations to design, construct,operate, maintain, repair and replace the Pipeline under this Contract shall be payable solely out of the assets and revenues of the PVP Enterprise. In no event shall the PVP Enterprise be required to expend any money from taxes which is in violation of Section 20(4) of Article X of the Colorado Constitution in the performance of its obligations under this Contract or which would cause PVP Enterprise to lose its enterprise status as such status is defined in the Colorado Constitution. In addition, the PVP Enterprise shall not be required to expend any funds of the District or Subdistrict in the performance of its.obligations under this Contract, except for the funds provided to the PVP Enterprise by Allottee and other Participants pursuant to paragraphs 6. and 7. C. All rights-of-way acquired in connection with the Pipeline shall belong to the PVP Enterprise subject to the obligation of PVP Enterprise to make reimbursement to the Participants for future use of the rights-of-way as set forth herein. Use of these rights-of-way by any Participant for any purpose other than the Pipeline is at the sole discretion of the Board; except that all Participants shall have the right to use the Pipeline rights-of-way at no increased cost to connect to the Pipeline and obtain delivery of water at their respective points of delivery described in Exhibit A, and to cross the Pipeline rights-of-way with their own utility lines so long as such utility lines do not unreasonably interfere with the operation,maintenance, repair and replacement of the Pipeline.Except as provided above, all Entities shall be required to pay the Participants for use of the rights-of-way in an amount equal to the appraised value of the right to so use the Pipeline rights-of-way at that time. The payment shall be divided among the Participants based upon their contributions to the original cost of the Pipeline rights-of-way determined on a Segment-by-Segment basis as established in the percentages set forth on Exhibit B. d. Allottee shall not construct pipelines,hydroelectric power generating facilities, or any other facilities which may interfere with the hydraulic characteristics or operations of the Pipeline, or otherwise potentially damage the Pipeline without first obtaining prior technical approval for such facilities in writing from the PVP Enterprise. Should the Allottee's generation of hydroelectric power or operation of any other facilities which are hydraulically connected to the Pipeline interfere with the intended operation of the Pipeline, Allottee shall cease operation of those facilities upon receiving written notification of interference by the PVP Enterprise until modifications can be made to eliminate any interference. Allottee shall not modify facilities whichmay interfere with the hydraulic characteristics or operations of the Pipeline, or otherwise potentially damage the Pipeline:,without first obtaining prior technical approval for such modifications in writing from the DRAFT January 24, 2003 Page 8 of 17 PVP Enterprise. 5. Cost Allocation Methodology. All costs for planning, permitting, design, right-of- way acquisition, construction, administration, operation, maintenance, repair and replacement of the Pipeline will be divided into two categories: Individual Segment Specific Costs, and Non- Segment Specific Costs. a. Individual Segment Specific Costs will be those costs which relate only to an individual specific Segment of the Pipeline including,but not limited to,costs for right-of-way,pipeline materials and installation, appurtenances, and electrical and instrumentation facilities. There will be a Segment Specific Cost category for each Segment of the Pipeline. Individual Segment Specific Costs will be allocated based upon each Participant's share of the capacity during each delivery period for each individual Segment allocated to all Participants as set forth on Exhibit B. b. Non-Segment Specific Costs will be those costs which relate to the Pipeline, but cannot be specifically related to an individual Segment. Non-Segment Specific Costs include, but are not limited to, permitting, environmental,design, engineering, administration and SCADA control system costs and will be allocated to each Segment of the Pipeline based on the length of that Segment as a proportion of the total length of the Pipeline. The percentages established for the sharing of these costs for each Segment are as set forth on Exhibit B. C. Allottee's Construction Costs shall be a collective reference to the amounts determined to be due hereunder from Allottee after calculating the Allottee's share of Individual Segment Specific Costs and Non-Segment Specific Costs, minus pre-construction costs, as defined herein (excluding any costs for operation, maintenance,repair or replacement). 6. Charges and Costs. a. Allottee has previously paid its pro rata share of the Pipeline preconstruction costs incurred for administration,preliminary and final design,environmental evaluations,permitting and other necessary items for the Pipeline in the amount of $1,422,344. b. In return for the perpetual, exclusive allocation and use of Pipeline capacity as described in this Contract, subject to the terms and conditions of this Contract and as provided in C.R.S. §§ 37-45-101 et sea., Allottee shall pay to the PVP Enterprise Allottee's Construction Costs in the total amount of $ upon execution of this Contract. • L Upon payment of Allottee's Construction Costs, Allottee shall also pay the DRAFT January 24,2003 Page 9 of 17 PVP Enterprise five percent (5%) of the Allottee's Construction Costs to be used by the PVP Enterprise to pay for additional preconstruction costs not included in the payments set forth in paragraph 6.a., if any, and to pay for change orders under the construction contracts made necessary by changed or unforeseeable conditions, delays or other claims by the contractors. The PVP Enterprise shall refund to the Allottee any portion of Allottee's Construction Costs and the five percent(5%)paid to the PVP Enterprise that is not used,when construction of the Pipeline has been finally completed, all contractors have been finally paid and all claims have been settled. ii. At such time that it appears that the five percent (5%)fund provided in paragraph 6.b.i. will be depleted, the PVP Enterprise shall give at least fifteen (15) days advance written notice to all Participants accompanied by reasonable information regarding past change orders and the possible need for additional change orders, and may request additional contributions from the Participants. Within thirty(30) days after the PVP Enterprise's written request, Allottee shall pay the PVP Enterprise such additional funds as are necessary to complete construction of the Pipeline. In the event that the Participants do not timely provide the funds necessary to complete construction of the Pipeline, the PVP Enterprise shall be under no further obligation to complete the Pipeline, may terminate the contract for construction of the Pipeline and may convey to Allottee, as a tenant in common with all other Participants, a pro rata interest in all real and personal property acquired by the PVP Enterprise for the Pipeline with funds provided under this Allotment Contract or similar allotment contracts with other Participants. Upon such conveyances, the PVP Enterprise shall have no further liability or obligations to the Allottee with respect to the Pipeline and this Allotment Contract shall automatically terminate. iii. The PVP Enterprise shall deposit all funds provided by the Allottee pursuant to paragraphs 6.b., 6.b.i., and 6.b.ii.in an interest bearing account and shall deposit the interest earned on said funds in the account described in paragraph 6.b.i. C. Allottee shall pay its share of reasonable annual charges and costs incurred by the PVP Enterprise in the administration, operation,maintenance, repair, and replacement of the Pipeline, and such other reasonable annual costs as may arise from and be attributable to the operation of the Pipeline pursuant to the procedures set out in paragraph 7. d. Allottee shall pay its share of such reasonable amounts as the Board shall determine to be necessary to establish and maintain an operating and maintenance reserve fund equal to eighteen months' operating and maintenance charges and costs pursuant to the procedures set out in paragraph 7. DRAFT January 24,2003 Page 10 of 17 • e. All money paid to the PVP Enterprise by the Allottee under this Contract shall be kept in separate interest-bearing accounts from all other accounts of the PVP Enterprise or the District and shall be used only for Pipeline purposes as specified in this Contract. 7. Payment of Charges. a. Payment of the costs for administration, operation,maintenance, repair and replacement of the Pipeline shall be the responsibility of the Participants and shall be allocated on the same percentages used to determine each Participant's Construction Costs, including the Allottee's Construction Costs, as set forth on Exhibit B. No later than three (3) months prior to the completion of construction of the Pipeline, the PVP Enterprise shall issue a billing statement to Allottee requiring payment of the anticipated annual charges and costs to be incurred for administration, operation, maintenance,repair and replacement of the Pipeline for the remainder of that Fiscal Year and to establish reserve funds, pursuant to paragraphs 6.c. and 6.d. In succeeding years, a statement of estimated annual charges shall be issued on or before October 15 of each year for the current Fiscal Year. A billing statement for annual charges shall be issued on or before January 15 of each year for the current Fiscal Year. Charges and costs for administration, operation, maintenance, repair and replacement of the Pipeline shall be allocated either as Individual Segment Specific Costs or Non-Segment Specific Costs as described in paragraphs 5.a. and 5.b. Each billing statement provided to Allottee by the PVP Enterprise shall be accompanied by reasonable supporting documentation showing the basis and derivation of costs and charges shown in the billing statement. Except for the first year, the total estimated charges and costs for administration, operation, maintenance, repair and replacement shall be based on the anticipated level of use of the Pipeline for the current Fiscal Year using the costs of administration, operation, maintenance, repair and replacement for the prior Fiscal Year, plus any positive and negative adjustments necessary to account for differences between the estimated and actual costs for the prior year and anticipated differences in the current year. These costs shall be allocated among the Participants using the same percentages that were used to determine each Participant's Construction Costs. The PVP Enterprise will reconcile the Allottee's payment with the actual costs incurred for each Fiscal Year and shall either apply a credit or impose an additional charge on the following year's billing statement. Allottee shall pay the charges shown on the first year's billing statement within sixty(60) days after receipt. Allottee shall pay the net charges shown on billing statements for subsequent years by March 15. Any interest earned by the PVP Enterprise on funds paid by the Allottee before being expended by the PVP Enterprise shall be credited against the succeeding year's Non-Segment Specific Costs. Allottee shall have the right to annually audit, at its expense, the books and records of the PVP Enterprise relating to the Pipeline. b. The obligations of Allottee to pay the costs for administration,operation, DRAFT January 24, 2003 Page 11 of 17 maintenance, repair and replacement of the Pipeline shall be special, limited obligations of Allottee and shall not constitute a debt or indebtedness, a pledge or grant of any interest or security in any property of, or a multiple fiscal year obligation of Allottee or Allottee Enterprise, within the meaning of any constitutional, charter or statutory provision or limitation; nor shall such obligations be interpreted in such a manner as to constitute the same, nor to constitute or be held to be a violation of any applicable constitutional; charter or statutory provision or limitation, or a general obligation of Allottee or Allottee Enterprise. If the costs for administration, operation,maintenance, repair and replacement of the Pipeline are not paid by the Allottee in accordance with this Contract,the PVP Enterprise shall give the Allottee written notice of default hereunder and Allottee shall have ninety (90) days after receipt of the notice to cure the default. In the event that the Allottee does not fully cure the default within said ninety (90) day period, the Allottee shall automatically lose a portion of its allotted capacity ("Lost Capacity") determined by the PVP Enterprise to be equal in value to the amount of charges and costs not paid and the Allottee shall have no further obligation to pay administration, operation, maintenance, repair and replacement charges and costs of the Pipeline related to the Lost Capacity. The PVP Enterprise's determination of value of the Lost Capacity shall be based upon the price of at least three recent sales of capacity in the Pipeline, suitably adjusted for inflation and other relevant factors. If three recent sales have not occurred, the PVP Enterprise's determination of value of the Lost Capacity shall be based upon the original cost of the Pipeline (including all planning, design, permitting, land acquisition, construction and other costs) suitably adjusted based upon depreciation, inflation, interest rates and other relevant factors. Other Participants shall have the right to purchase such Lost Capacity within ninety (90) days after the PVP Enterprise gives notice that it is available for purchase at the value determined by the PVP Enterprise,plus any costs that the PVP Enterprise incurs in performing its duties under this paragraph. If there are more Participant purchasers than Lost Capacity available for sale, it shall be allocated based upon each Participant's previously allotted capacity in the Pipeline as set forth on Exhibit A. If not all of the Lost Capacity is purchased by the other Participants within the ninety(90) day period,the PVP Enterprise may sell the Lost Capacity to any Entity eligible to use Pipeline capacity hereunder at the price at which it was offered to the Participants. After any such sale, any amount in excess of the unpaid charges and costs plus interest and any costs that the PVP Enterprise incurs in performing its duties under this paragraph shall be refunded to the Allottee. If the PVP Enterprise is unable to sell the Lost Capacity within ninety(90) days after it is offered for sale to any Entity eligible to use Pipeline capacity hereunder, the PVP Enterprise shall have the right to terminate deliveries to the Allottee. After such termination of delivery, the PVP Enterprise shall continue to offer the Lost Capacity for sale at the price at which it was offered to the Participants and water deliveries to Allottee shall be resumed (for capacity for which payments are current and which has not been sold) upon sale of the Lost Capacity to Allottee or any other eligible Entity. Unpaid operating and maintenance expenses shall be drawn from the reserve fund. The reserve fund shall be replenished by the DRAFT January 24,2003 Page 12 of 17 • Participants annually. This paragraph shall provide the PVP Enterprise's exclusive remedy for recovering administration, operation, maintenance, repair and replacement costs in the event that Allottee does not appropriate funds or pay those costs as provided in paragraph 7.a. above. 8. Completion Date. Attached hereto as Exhibit C and incorporated herein by this reference is a time line for construction and completion of the Pipeline. The time line may be modified for good cause. The PVP Enterprise shall complete construction of the Pipeline in good faith in accordance with the time line as modified, subject to force majeure events,failure of the Allottee or other Participants to make required payments under this or similar contracts and delays beyond the PVP Enterprise's reasonable control or caused by the construction process or the construction contractors. In addition, the completion date is subject to change based upon mutual agreement of all of the Participants, as conditions and available information wan-ant. 9. Limitations on Rights of Allottee. In addition to all the other terms, conditions and covenants contained herein,it is specifically understood and agreed by and between the parties hereto that the rights of the Allottee hereunder are subject to the following terms, conditions and limitations,which are incorporated herein by this reference: a. The Water Conservancy Act of Colorado, C.R.S §§ 37-45-101 et sea.; and • b. The rules, regulations and policies of the Board as the same may be adopted or amended from time to time,provided that to the extent that such future rules, regulations and policies adversely affect the Allottee's rights hereunder or its rights to use the capacity contracted for in any lawful manner, such future rules, regulations or policies shall not be enforceable against Allottee. 10. Transfer of Allotment. Allottee shall have the right to lease, assign,transfer or encumber all or any part of its allotment of capacity hereunder, for such consideration as Allottee in its sole discretion may establish, subject to the terms and conditions of this Contract, to another Entity that is financially able to perform this Contract,with the prior written consent of the Board, which consent shall not be unreasonably withheld. This Contract is made for the exclusive benefit of the Allottee and shall not inure to the benefit of any successors or assigns of said Allottee except pursuant to the terms of this Contract. 11. Advisory Committee. The PVP Enterprise shall call and conduct, at least every three calendar months,periodic meetings of a Pleasant Valley Pipeline Advisory Committee(the "Committee"),which shall consist of a representative of each of the Participants in the Pipeline. Unless otherwise agreed by the Committee members,the meetings shall be held at the Headquarters Building of the PVP Enterprise. At each Committee meeting,representatives of • the PVP Enterprise shall report to the Committee members on the status of the Pipeline,the finances of the PVP Enterprise and on any other matter affecting the Pipeline that any member of DRAFT January 24,2003 Page 13 of 17 the Committee requests to be addressed. The Committee may make non-binding recommendations to the Board of the PVP Enterprise regarding any matter affecting the Pipeline that may come before the Board. Allottee, all other Participants, and the Advisory Committee shall have the right to consult with the Board of Directors of the PVP Enterprise before such Board takes any action materially affecting the Pipeline. 12. No Limitation of Remedies.The duties and obligations imposed by this Contract and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to them which are otherwise imposed by law or regulation, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract in connection with each particular duty, obligation,right, and remedy to which they apply. 13. Legal Ability to Perform. PVP Enterprise and Allottee,respectively, warrant and represent as follows: a. The PVP Enterprise hereby warrants and represents to Allottee that PVP Enterprise is validly organized and has the power and authority to enter into this Contract and to allot to Allottee the rights described herein. b. Allottee hereby warrants and represents to PVP Enterprise that Allottee is validly organized and has the power and authority to enter into this Contract and to accept the allotment described herein and perform all of its obligations hereunder. 14. Non-Waiver of Immunity. Neither party hereto waives any immunity to liability provided by statute or otherwise. 15. Force Maieure. Notwithstanding anything contained herein to the contrary, and except for the obligation to pay money,in the event and to the extent that fire, flood,earthquake, natural catastrophe, explosion, accident,war, illegality, act of God, or any other cause beyond the control of either party hereto, or strikes or labor troubles (whether or not within the power of the party affected to settle the same)prevents or delays performance by either parry to this Contract, such party shall be relieved of the consequences thereof without liability, so long as and to the extent that performance is prevented by such cause; provided,however,that such party shall exercise due diligence in its efforts to resume performance within a reasonable period of time. 16. Governing Law and Enforceability_. This Contract shall be construed in accordance with the laws of the State of Colorado. In addition, the parties hereto recognize that there are legal constraints imposed upon them by the constitution, statutes, and rules and regulations of the State of Colorado and of the United States, and imposed upon them by their respective governing statutes, charters, ordinances,rules and regulations, and that, subject to such DRAFT January 24,2003 Page 14 of 17 constraints, the parties intend to carry out the terms and conditions of this Contract. Notwithstanding any other provision of this Contract to the contrary,in no event shall either of the parties exercise any power or take any action which shall be prohibited by applicable law. Whenever possible, each provision of this Contract shall be interpreted in such a manner so as to be effective and valid under applicable law. 17. Notice. Whenever written notice is required or permitted to be given under this Contract by one party to the other, it shall be given by hand delivery or by mailing the same by certified U.S. Mail, return receipt requested, addressed to the other party at the following addresses: If to the Allottee: City of Fort Collins Utilities 700 Wood Street P.O. Box 580 Fort Collins, CO 80522-0580 Attention: Brian Janonis If to the PVP Enterprise: Northern Colorado Water Conservancy District 1250 N. Wilson Ave. P.O. Box 679 Loveland, CO 80539 Attention: Jeff Drager Either party hereto may at any time designate a different person or address for purposes of receiving notice by so informing the other party in writing. Notice shall be deemed effective upon actual receipt thereof. 18. Waiver. No waiver by either party hereto of any term or condition of this Contract shall be deemed to be or shall be construed as a waiver of any other term or condition, nor shall a waiver of any breach of this Contract be deemed to constitute a waiver of any subsequent breach of the same provision of this Contract. 19. Construction. This Contract shall be construed according to its fair meaning and as if it was prepared by both parties hereto, and shall be deemed to be and contain the entire agreement between the parties hereto. There shall be deemed to be no other terms,conditions, promises, understandings, statements or representations, expressed or implied,concerning this • Contract or the subject matter hereof, unless set forth in writing and signed by both parties hereto. Paragraph headings in this Contract are for convenience only and shall in no way define, DRAFT January 24, 2003 Page 15 of 17 limit or prescribe the scope or intent of any provision of this Contract. 20. Severability. If any provision of this Contract, or the application of such provision to any person, entity or circumstance, shall be held invalid, the remainder of this Contract, or the application of such provision to persons, entities, or circumstances other than those in which it is held invalid, shall not be affected. 21. Binding Effect. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. DRAFT January 24,2003 Page 16 of 17 The authorized representatives of PVP Enterprise and Allottee have executed this • Contract the day and year first set forth above. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, ACTING BY AND THROUGH THE PLEASANT VALLEY PIPELINE WATER ACTIVITY ENTERPRISE By: General Manager THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By: City Manager ATTEST: • City Clerk APPROVED AS TO FORM: Deputy City Attorney CITY OF FORT COLLINS WATER UTILITY ENTERPRISE An Enterprise of the City City Manager ATTEST: City Clerk DRAFT January 24,2003 Page 17 of 17 Exhibit A Participants,Allotted Capacity, Minimum Hydraulic Elevation, and Points of Delivery Summer Winter Minimum HGL Pipeline Station Flow C acity ow Ca a ity Elevation Near Point Iranici ant MGD cfs MGD cis USGS Datum Approximate Point of Deliveryof Delivery City of Fort Collins 60 92.82 0 0 5240 Fort Collins Water Treatment Facility 0+95 Soldier Canyon Filter Plant 60 92.82 0 0 5253 Soldier Canyon Filter Plant 10+37 Ci of Greele 0 0 30 46.41 5246 Near Greele turnout on Hansen SuppI Canal 330+ 19 Delivery Seasons: Duration Start End I No. a s Summer 1-Apr 31-Oct 214 Winter 1-Nov 31-Mar 151 Exhibit B • Definition of Pipeline Segments and Cost Allocation Percentages Segment Soldier Canyon Segment No. Segment Description Length ft Fort Collins Fitter Plant Greeley Individual Seament S Costs 1 Munroe Canal Turnout to Greeley Turnout(Station 330+19) 12,589 50.0% 50.0% 0. 2 Greeley Turnout(Station 330+19)to End(Station 0+95) 32,924 42.5% 42.5% 15. 3 Greeley Connection to 54-inch Soldier Canyon Outlet Ns 0.0% 0.0% 100.0% 4 Greeley Belivue Turnout Na 0.0% 0.0% 100.0% 5 Soldier Canyon Fitter Plant Turnout Na 0.0% 100.0% 0.0% 8 Cathodic Protection on Fort Collins 27-Inch Pipeline We 100.0% 0.0% o. N n-Se meet Specific Posts' G Non-Se ment S ec�c Costs Ne 37.94% 37.94% 24.11% Notes., 1 Individual Segment specific costs will be those costs which relate only to an Individual specific Segment of the Pipeline, including,but not limited to costs for right-of-way,pipeline materials and installation,appurtenances,and electrical and instrumentation facilities. 2 General costs will be those costs which relate to the Pipeline,but cannot be specifically related to an . individual specific Segment of the Pipeline,Including,but not limited to permitting,environmental,design, engineering,administration,and SCADA control system costs. Examples of Cost Allocation Formulas. Segment Specific Costs • Segment 1: Soldier Canyon Percent=Osd(O�+Ow) Segment 2: Fort Collins Percent=(Om x Inc)/((QK x W+(Ow x tw)+(OG x tg)) Where: QFG.Q=,QG=Fort Collins,Soldier Canyon,and Greeley flow rates tm,tsc,Qo=Fort Collins,Soldier Canyon,and Greeley operating time(number of days) Non-Segment Specific Costs Greeley Percent=(Segment 1 Lengthrrotal Length)x Segment 1 Share+(Segment 2 Length/Total Length)x Segment 2 Share Non-segment specific shares: [Participant I Segment 1 1 Segment 2 Fort Collins 50% 33% Soldier Canyon 50% 33% Greeley 0% 33% EXHIBIT C Timeline for Construction of Pleasant Valley Pipeline December-02 Complete Pipeline Design January-03 Finalize Construction Cost February-03 Federal Permit Approval Complete Right-of-Way Acquisition Award Construction Contract Order Pipe and Materials March-03 Begin Construction February-04 Complete Construction March-04 Start-up and Testing April-04 Pipeline In Service