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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/15/2013 - ITEMS RELATING TO THE FORT COLLINS-LOVELAND WATERAgenda Item 13 Item #13 Page 1 AGENDA ITEM SUMMARY October 15, 2013 City Council STAFF Lance Smith, Strategic Financial Planning Manager Brian Janonis, Utilities Executive Director Kevin Gertig, Water Resources/Treatment Operations Manager Jon Haukaas, Water Engineer Field Operations Manager SUBJECT Items Relating to the Fort Collins-Loveland Water District Intergovernmental Agreement. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 135, 2013, Authorizing the Mayor to Execute an Amended and Restated Intergovernmental Agreement with the Fort Collins-Loveland Water District, the Fort Collins- Loveland Water District Enterprise, and the City of Fort Collins Water Utility Enterprise for the Delivery of Potable Water. B. Second Reading of Ordinance No. 136, 2013, Authorizing the Mayor to Execute an Intergovernmental Agreement for Water Treatment Services with the Fort Collins-Loveland Water District, the Fort Collins-Loveland Water District Enterprise, and the City of Fort Collins Water Utility Enterprise. These Ordinances, unanimously adopted on First Reading on October 1, 2013, restructure the existing water sharing agreement with the Fort Collins-Loveland Water District (FCLWD) and enter into a separate agreement for the sale of excess water treatment capacity. The revisions to the existing agreement, as well as entering into the second agreement, will benefit the customers of Fort Collins Utilities through incremental revenues and the customers of FCLWD by increasing the amount of water that can be delivered to them. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on Second Reading. ATTACHMENTS 1. Copy of First Reading AIS, October 1, 2013 (w/o attachments) 2. Ordinance No. 135, 2013 3. Ordinance No. 136, 2013 COPY COPY COPY ATTACHMENT 1 DATE: October 1, 2013 STAFF: Lance Smith, Brian Janonis, Kevin Gertig, Jon Haukaas AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 13 SUBJECT Items Relating to the Fort Collins-Loveland Water District Intergovernmental Agreement. A. First Reading of Ordinance No. 135, 2013, Authorizing the Mayor to Execute an Amended and Restated Intergovernmental Agreement with the Fort Collins-Loveland Water District, the Fort Collins-Loveland Water District Enterprise, and the City of Fort Collins Water Utility Enterprise for the Delivery of Potable Water. B. First Reading of Ordinance No. 136, 2013, Authorizing the Mayor to Execute an Intergovernmental Agreement for Water Treatment Services with the Fort Collins-Loveland Water District, the Fort Collins-Loveland Water District Enterprise, and the City of Fort Collins Water Utility Enterprise. EXECUTIVE SUMMARY The purpose of this item is twofold: 1. To amend the existing Intergovernmental Agreement (IGA) with Fort Collins Loveland Water District (FCLWD) by updating the terms of the Agreement, recognizing additional connection locations, and 2. Allowing for the sale of up to 5 million gallons per day (MGD) of Water Treatment Capacity through a second IGA with FCLWD. For the past year, Utilities staff has been negotiating with FCLWD to restructure the existing water sharing agreement and enter into a separate agreement for the sale of excess water treatment capacity. The revisions to the existing agreement, as well as entering into the second agreement, will benefit the customers of Fort Collins Utilities through incremental revenues and the customers of FCLWD by increasing the amount of water that can be delivered to them. The Water Board has reviewed the proposed amendments and new agreement and recommends approval. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on First Reading. BACKGROUND / DISCUSSION In 1999 a Joint Transmission Study was completed by Fort Collins Utilities and the Tri-Districts to determine the need for additional transmission capacity throughout the community. An outcome of that study was the decision by Fort Collins Utilities to build a 60” transmission system which, in addition to meeting the demands of Fort Collins Utilities, would be utilized by FCLWD to convey water from the Soldier Canyon Treatment Plant (SCFP) to FCLWD customers through an IGA. The current water sharing agreement between the City and FCLWD has been in effect since 1999 for that purpose. Delivery points into the FCLWD distribution system were specified in the agreement as were two points of entry into the Fort Collins Utilities transmission system from SCFP. The intention of the water sharing agreement was to allow for an annual balancing between how much water was conveyed through the Fort Collins Utilities transmission system from SCFP and how much water was taken from the Fort Collins Utilities transmission system by FCLWD and to specify the terms of the lease of the excess capacity in the new 60” transmission pipe. No changes are being proposed to the leasing terms and associated transmission charges except to include two additional points of delivery which have been added since 1999. Many of the terms of the agreement concerning the balancing and settlement of imbalances are outdated however, including the amount of water being shared, the points of delivery for any shared water as discussed above and the COPY COPY COPY October 1, 2013 -2- ITEM 13 settlement price of any resulting annual imbalance. In an effort to address these inconsistencies, Fort Collins Utilities and FCLWD have negotiated new terms for the agreement over the past year. Ongoing development within the FCLWD service area has created a need for higher daily flows of water through the Fort Collins Utilities transmission system into the FCLWD distribution system. The amended agreement being proposed herein will increase the daily flow limit from 9 to 12 MGD which along with the proposed agreement for the sale of excess treatment capacity discussed below should allow FCLWD to meet their demand for several years. (Please note that Fort Collins Utilities is expecting to amend the existing water sharing agreement with North Weld County Water District to lower the maximum daily flow of that agreement from 12 MGD to 9 MGD, hence there is no increase in the combined treatment capacity obligation by Fort Collins Utilities for these agreements.) The current water sharing agreement allows for an annual settlement of any imbalance at $0.36 per thousand gallons with no raw water being provided. This settlement price is well below the current direct cost of treatment much less the current total cost of treatment. As such, the fixed price of settlement, along with no raw water being provided in the settlement, is no longer acceptable to Fort Collins Utilities. To date all annual imbalances have fallen within the specified 5% limit which allows the imbalance to be carried forward into the next water year. However, in the foreseeable future this may not be the case. To make it possible to not require annual settlements in the past it has been necessary for FCLWD to push significant amounts of water to Fort Collins Utilities during shoulder months (February - April and September - October) in order to offset the significant imbalance that occurs during the irrigation season (May - August). In effect, Fort Collins Utilities has provided FCLWD with treatment capacity to meet their peak demand without compensation in the past. The proposed amendment will address these issues by allowing for annual adjustments in the settlement price, requiring raw water is transferred between parties and requiring monthly settlement of any imbalance in excess of 12 million gallons. Because the proposed settlement price for 2013 of $2.0338 per thousand gallons inclusive of the payment in-lieu of taxes (plus transmission charges as outlined in the current agreement) is significantly higher than the current agreement specifies and may require an immediate rate increase for FCLWD customers, Fort Collins Utilities has agreed to ask City Council to allow for this rate to be stepped into over 3 years beginning at $1.3500 per thousand gallons inclusive of the payment in-lieu of taxes in 2013. The terms of the agreement are mutual so that the same settlement terms apply to any imbalance owed to Fort Collins Utilities or FCLWD. Because Fort Collins Utilities has excess treatment capacity and the agreement outlines the right of refusal by either party of water through daily communication, it is not anticipated that Fort Collins Utilities will have a need to take sufficient water from FCLWD to result in a monthly imbalance requiring settlement under normal operating conditions. Lastly on the water sharing agreement, although the letter from FCLWD on May 31 (Attachment 2) states both parties are agreeable to making the proposed amendments effective June 1, 2013, the amended agreement will be effective beginning with the 2013-14 water year which begins on November 1, 2013. In addition to renegotiating the terms of the water sharing agreement, both parties have spent considerable time reaching consensus on the proposed agreement for the sale of some of the excess water treatment capacity at the Fort Collins Utilities water treatment facility (WTF). The WTF was last expanded prior to the significant conservation efforts of the past decade which have resulted in the WTF treatment capacity of 87 MGD being at least 20 MGD above Fort Collins Utilities expected demand at build out in 2035 (Attachment 3). The proposed amendment for the sale to FCLWD of up to 5 MGD of treatment capacity provides Fort Collins Utilities customers a significant source of revenue to offset future operating expenses at the WTF and allows for future capital improvements to the existing facilities. The terms of the agreement do not involve the transfer of raw water rights as FCLWD is acquiring 5 MGD of treatment capacity only. Any raw water treated at the WTF for FCLWD through this agreement will result in the transfer of the same amount of raw water to Fort Collins Utilities through the Colorado-Big Thompson’s Horsetooth Reservoir. The associated plant investment fee (PIF) is $12.6M for 5 MGD of treatment capacity. FCLWD has asked the City to allow it to pay for the PIF associated with 1 MGD, or $2,520,000, upon the agreement becoming effective and to amortize the remaining PIF for 4 MGD, or $10,600,000, over 20 years at 5% interest resulting in monthly payments of $66,524, or $798,282 annually. In addition to the PIF, any water that is treated and delivered through this agreement to FCLWD will include treatment charges of $2.1093 per thousand gallons inclusive of payment in-lieu of taxes along with the transfer of an equal amount of Colorado-Big Thompson Project (CBT) water from FCLWD to Fort Collins Utilities. FCLWD has requested the option to purchase an additional 5 MGD of treatment capacity from the WTF under the same terms. While Fort Collins Utilities is not agreeing to the right of first refusal for this additional 5 MGD, COPY COPY COPY October 1, 2013 -3- ITEM 13 Fort Collins Utilities will work closely with FCLWD to ensure FCLWD is aware of how much excess capacity exists at the WTF in the future. FINANCIAL / ECONOMIC IMPACTS The financial impact of the proposed amendment affecting the sharing of water between the two parties is difficult to quantify as it depends greatly on the annual variability in water demand. Monthly imbalances requiring settlement are likely in the irrigation season (May - August) when FCLWD has historically taken more water than it has returned to Fort Collins Utilities. Thus, amending the agreement to have monthly rather than annual settlements may increase the cost of water for FCLWD customers as it will no longer allow FCLWD to effectively use this agreement to meet its summer peak demand through the use of treatment capacity it has not invested in creating. Correspondingly, it may offset some of the indirect treatment costs currently paid by Fort Collins Utilities customers through the monthly settlement of any imbalance. The financial impacts of the proposed agreement for the sale of excess treatment capacity also depend on the annual variability in the demand for water with the exception of the plant investment fee. The budget for 2013-14 assumed an average annual collection of $650,000 in plant investment fees. In addition to the initial payment of $2,520,000 for 1 MGD of capacity, the annual payments associated with amortizing the purchase of the remaining 4 MGD of treatment capacity is $798,282. Thus, amortizing the plant investment fee over 20 years will result in significantly increasing the amount of capital available annually for investment in renewing the WTF infrastructure. ENVIRONMENTAL IMPACTS If the proposed sale of excess treatment capacity is not entered into by both parties, the increased demand for treated water by FCLWD may require the expansion of the SCFP or the construction of a new water treatment facility. The potential environmental impacts of either of those solutions to meet FCLWD’s growing demand for treated water would at a minimum be deferred by several years through the proposed sale. BOARD / COMMISSION RECOMMENDATION At its June 20, 2013 meeting, the Water Board voted unanimously to recommend approval of the amendments to the existing Intergovernmental Agreement for the Delivery of Potable Water with Fort Collins Loveland Water District and entering into a new Intergovernmental Agreement for the Sale of Potable Water with Fort Collins Loveland Water District. (Attachment 4) ATTACHMENTS 1. Existing FCLWD Intergovernmental Agreement for the Delivery of Potable Water January 1999 2. FCLWD Response Letter to Proposed Amendments to Existing Water Share Agreements 3. Internal Memo on WTF Excess Capacity at Build-out in 2035 4. Water Board minutes, June 20, 2013 - 1 - ORDINANCE NO. 135, 2013 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE MAYOR TO EXECUTE AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT WITH THE FORT COLLINS-LOVELAND WATER DISTRICT, THE FORT COLLINS-LOVELAND WATER DISTRICT ENTERPRISE, AND THE CITY OF FORT COLLINS WATER UTILITY ENTERPRISE FOR THE DELIVERY OF POTABLE WATER WHEREAS, the City is a home rule municipality organized and existing under Colorado law that owns a water utility which acquires, treats, transmits and distributes potable water (hereinafter referred to as “the City Water Utility”); and WHEREAS, in doing so, the City owns and the City Water Utility operates a water treatment plant located at 4316 LaPorte Avenue, Fort Collins, Colorado (hereinafter referred to as “the City’s Treatment Plant”); and WHEREAS, the City Water Utility distributes potable water to its customers through a variety of water transmission facilities located within the City (hereinafter referred to as “the City’s Transmission Facilities”); and WHEREAS, the District is a special district organized and existing under Colorado law that also operates a water utility which distributes potable water through a variety of water transmission facilities located within Larimer County, Colorado (hereinafter referred to as “the District’s Transmission Facilities”); and WHEREAS, the District has previously entered into that certain “Amended Intergovernmental Agreement” dated December 9, 1995, (hereinafter referred to as “the Soldier Canyon IGA”) with the East Larimer County Water District (hereinafter referred to as “ELCO”) and the North Weld County Water District (hereinafter referred to as “NWCWD”); and WHEREAS, the Soldier Canyon IGA created Soldier Canyon as a separate governmental entity pursuant to C.R.S. Section 29-1-203; and WHEREAS, the Soldier Canyon IGA provides that Soldier Canyon shall be responsible for the operation, maintenance and management of the water treatment plant located at 4424 LaPorte Avenue, Fort Collins, Colorado, which is jointly owned by the District, ELCO and NWCWD (hereinafter referred to as “the Soldier Canyon Treatment Plant”); and WHEREAS, the City and the District have been exploring the possibility of sharing the use of their respective water facilities in order to avoid expensive duplication of these facilities, as well as to find ways to optimize the use of their respective water resources; and WHEREAS, the City and the District have previously entered into that certain Intergovernmental Agreement for Delivery of Potable Water, dated January 19, 1999 (“Water Delivery Agreement”), which provides for the delivery of treated water by the City and the District - 2 - to each other on demand, as available, to meet day-to-day demands for delivery of potable water to their respective customers; and WHEREAS, the City and the District have also previously entered into that certain Intergovernmental Agreement for the Sale and Delivery of Potable Water dated April 16, 2001, as amended on July 11, 2006 (the “Water Sales Agreement”), which Water Sales Agreement provides for the City to sell and deliver potable water to the District in order for the District to provide potable water to District customers in approved subdivisions and developments that have been annexed into the City; and WHEREAS, it is in the mutual interests of the City and the District to establish updated arrangements for the delivery of potable water by amending and updating the Water Delivery Agreement, to reconcile and coordinate the terms of this Agreement with the Water Sales Agreement, and to separately enter into an Intergovernmental Agreement for Water Treatment Service (“Water Treatment Agreement”) to reflect the current needs and commitments of the parties; and WHEREAS, the terms and conditions pursuant to which the City and the District would exchange potable water are set forth in the AAmended and Restated Intergovernmental Agreement for the Delivery of Potable Water,@ a copy of which is attached hereto as Exhibit AA@ and incorporated herein by reference (the AAgreement@); and WHEREAS, in addition to updating and clarifying numerous aspects of the Water Delivery Agreement, the Agreement removes Soldier Canyon from party status, and provides that the District is responsible for ensuring that the water delivery obligations of the District are met; and WHEREAS, the Agreement provides for its retroactive application to June 1, 2013, incorporating new rates and raw water requirements, and other terms and conditions; and WHEREAS, pursuant to C.R.S. '29-1-203(1), the City and the District are authorized to cooperate or contract with one another to provide any function, service or facility lawfully authorized to each of them; and WHEREAS, Article II, Section 16 of the Charter of the City of Fort Collins (“Charter”) additionally provides that the City Council may, by resolution or ordinance, enter into contracts with other governmental bodies to furnish governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS, Article XII, Section 6 of the Charter provides that the City Council shall by ordinance from time to time fix, establish, maintain, and provide for the collection of such rates, fees or charges for water and electricity, as will produce revenues sufficient to pay the cost of operation and maintenance of the utilities in good repair and working order, and for other enumerated purposes; and WHEREAS, the City Enterprise and the District Enterprise were created by the City and the District, respectively, in order to comply with the provisions of Section 20, Article X of the - 3 - Colorado Constitution and Article 45.1 of Title 37 of the Colorado Revised Statutes in order to permit the City and the District, acting through their respective enterprise, to issue revenue bonds and enter into multi-year fiscal obligations in connection with their operation of a water utility; and WHEREAS, the City Enterprise and the District Enterprise are made parties to the Agreement solely for the purpose of entering into any multi-year fiscal obligation imposed under this Agreement; and WHEREAS, the City Enterprise is authorized in Section 26-43 of the Code of the City of Fort Collins to enter into contracts relating to the City’s water system. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Council hereby approves the Agreement, including the rates, fees and charges set forth in the Agreement, and finds and determines the Agreement to be for the benefit of the City Water Utility and its ratepayers. Section 2. That the Council hereby authorizes the Mayor to execute the Agreement on behalf of the City, in substantially the form attached hereto as Exhibit “A”, together with such modifications and additions as the City Manager, in consultation with the City Attorney, determines necessary and appropriate to protect the interests of the City or further the purposes of this Ordinance. Introduced, considered favorably on first reading, and ordered published this 1st day of October, A.D. 2013, and to be presented for final passage on the 15th day of October, A.D. 2013. __________________________________ Mayor ATTEST: _______________________________ City Clerk - 4 - Passed and adopted on final reading on the 15th day of October, A.D. 2013. __________________________________ Mayor ATTEST: _______________________________ City Clerk Amended and Restated Water Delivery Agreement September 30, 2013 1 AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT FOR THE DELIVERY OF POTABLE WATER This Amended and Restated Intergovernmental Agreement for the Delivery of Potable Water (“Water Delivery Agreement”) is made and entered into this 13th day of September, 2013, effective as of November 1, 2013, by and between the CITY OF FORT COLLINS, a Colorado municipal corporation, (hereinafter referred to as “the City”), the CITY OF FORT COLLINS WATER UTILITY ENTERPRISE, an enterprise of the City (hereinafter referred to as “the City Enterprise”), the FORT COLLINS-LOVELAND WATER DISTRICT, a political subdivision of the State of Colorado, (hereinafter referred to as “the District”), and the FORT COLLINS- LOVELAND WATER DISTRICT ENTERPRISE, an enterprise of the District (hereinafter referred to as “the District Enterprise”) (all collectively referred to as the “Parties”). W I T N E S S E T H : WHEREAS, the City is a home rule municipality organized and existing under Colorado law that owns a water utility which acquires, treats, transmits and distributes potable water (hereinafter referred to as “the City Water Utility”); and WHEREAS, in doing so, the City owns and the City Water Utility operates a water treatment plant located at 4316 LaPorte Avenue, Fort Collins, Colorado (hereinafter referred to as “the City’s Treatment Plant”); and WHEREAS, the City Water Utility distributes potable water to its customers through a variety of water transmission facilities located within the City (hereinafter referred to as “the City’s Transmission Facilities”); and WHEREAS, the District is a special district organized and existing under Colorado law that also operates a water utility which distributes potable water through a variety of water Amended and Restated Water Delivery Agreement September 30, 2013 2 transmission facilities located within Larimer County, Colorado (hereinafter referred to as “the District’s Transmission Facilities”); and WHEREAS, the City Enterprise and the District Enterprise were created by the City and the District, respectively, in order to comply with the provisions of Section 20, Article X of the Colorado Constitution and Article 45.1 of Title 37 of the Colorado Revised Statutes in order to permit the City and the District, acting through their respective enterprise, to issue revenue bonds and enter into multi-year fiscal obligations in connection with their operation of a water utility; and WHEREAS, the City Enterprise and the District Enterprise are made parties to this Agreement solely for the purpose of entering into any multi-year fiscal obligation required under this Agreement; and WHEREAS, the District has previously entered into that certain “Amended Intergovernmental Agreement” dated December 9, 1995 (hereinafter referred to as “the Soldier Canyon IGA”), with the East Larimer County Water District (hereinafter referred to as “ELCO”) and the North Weld County Water District (hereinafter referred to as “NWCWD”); and WHEREAS, the Soldier Canyon IGA by its terms created Soldier Canyon as a separate governmental entity pursuant to C.R.S. Section 29-1-203; and WHEREAS, the Soldier Canyon IGA provides that Soldier Canyon shall be responsible for the operation, maintenance and management of the water treatment plant located at 4424 LaPorte Avenue, Fort Collins, Colorado, which is jointly owned by the District, ELCO and NWCWD (hereinafter referred to as “the Soldier Canyon Treatment Plant”); and WHEREAS, pursuant to C.R.S. Section 29-1-203(1), governmental entities in Colorado are authorized to cooperate or contract with one another to provide any function, service or Amended and Restated Water Delivery Agreement September 30, 2013 3 facility lawfully authorized to each of the cooperating or contracting governmental entities; and WHEREAS, the City and the District have been exploring the possibility of sharing the use of their respective water facilities in order to avoid expensive duplication of these facilities, as well as to find ways to optimize the use of their respective water resources; and WHEREAS, the parties, together with Soldier Canyon, have previously entered into that certain Intergovernmental Agreement for Delivery of Potable Water, dated January 19, 1999 (“Water Delivery Agreement”), which provides for the delivery of treated water by the City and the District to each other on demand, as available, to meet day-to-day demands for delivery of potable water to their respective customers; and WHEREAS, the City and the District have also previously entered into that certain Intergovernmental Agreement for the Sale and Delivery of Potable Water dated April 16, 2001, as amended on July 11, 2006 (the “Water Sales Agreement”), which Water Sales Agreement provides for the City to sell and deliver potable water to the District in order for the District to provide potable water to District customers in approved subdivisions and developments that have been annexed into the City; and WHEREAS, it is in the mutual interests of the City and the District to establish updated arrangements for the delivery of potable water by amending and updating the Water Delivery Agreement, to reconcile and coordinate the terms of this Agreement with the Water Sales Agreement, and to separately enter into an Intergovernmental Agreement for Water Treatment Service (“Water Treatment Agreement”) (both of which, together with this Agreement, are sometimes referred to collectively as the “Water Agreements”), to reflect the current needs and commitments of the parties; and Amended and Restated Water Delivery Agreement September 30, 2013 4 WHEREAS, the Water Agreements specify certain volumes, prices and delivery points that apply for the sharing and sale of potable water as set forth therein; and WHEREAS, in order to update the terms of service for the delivery of potable water, the parties have negotiated the terms and conditions set forth herein, which the parties agree amend and restate the Water Delivery Agreement and, to the extent of any conflict, amend and supersede the Water Sales Agreement; and WHEREAS, it is the intent of the parties, with the consent of Soldier Canyon, to remove Soldier Canyon as a party to the Water Delivery Agreement. NOW, THEREFORE, in consideration of the parties’ mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and accuracy of which are hereby acknowledged, the parties hereto agree as follows: 1. Term of Agreement. The obligations of the parties under this Agreement shall be perpetual in duration and shall not expire unless terminated as provided in paragraph 10 or 11 below. 2. Delivery of Potable Water to the District. A. It is the understanding of the parties that due to the configuration of the District’s Transmission Facilities, and the manner in which potable water flows into the District’s System from the City’s Transmission Facilities, it is not necessary for the District to request deliveries from the City. Instead, through its operations, the District will coordinate with the City for the normal operation of its System so as to allow for delivery of potable water from the City’s System to the District’s System on an ongoing basis, at levels consistent with the terms of this Agreement and in accordance with the terms and conditions set forth herein. The District will Amended and Restated Water Delivery Agreement September 30, 2013 5 notify the City in advance of any infrastructure or operational changes in the District’s System the affect the interconnection of the systems covered under this Agreement, except in the event of emergency circumstances, in which case the District shall notify the City as early as reasonably possible of the emergency and related System changes. B. The City shall only be obligated to deliver water to the District to the extent it legally and physically has surplus potable water available after meeting all the needs of the customers of the City Water Utility and provided that it is reasonably practicable for the City to operate its System so as to provide water to the delivery points as requested and as specified in this Agreement; C. In no event, however, shall the City be obligated under this Agreement to deliver to the District more than twelve (12) million gallons of potable water in any given day or more than 1.75 billion (1,750,000,000) gallons of potable water in any Water Year (a “Water Year”, for purposes of this Agreement, shall mean November 1 of a year to October 31 of the following year). Any deliveries under the Water Sales Agreement shall be accounted for before the application of the charges and delivery limits under this Agreement. Any deliveries made in excess of the deliveries provided for in this Agreement, and all deliveries to the Harmony Meter Station and the Fossil Ridge Meter Station, as defined in the Water Treatment Agreement, shall be considered deliveries under the Water Treatment Agreement. Deliveries under the Water Sales Agreement or the Water Treatment Agreement shall be separately accounted for and invoiced in accordance with the applicable terms and conditions, and shall be subject to the limitations set forth Amended and Restated Water Delivery Agreement September 30, 2013 6 therein; and D. For the purposes of water deliveries under this Agreement, as well as water sales under the Water Sales Agreement, all water deliveries from the City to the District shall be at one of the following delivery points: 1. The cross-tie connection between the City’s Treatment Plant and the Soldier Canyon Treatment Plant located at the City’s Treatment Plant (the “Cross-Tie”); 2. The existing connection between the District’s Transmission Facilities and the City’s Transmission Facilities located in Fort Collins, Colorado, together with associated pumping facilities, north of the intersection of Elizabeth St and Overland Trail (the “Overland Pump Station”). 3. The existing connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, at the southeast corner of the intersection of Harmony Road and Taft Hill Road (the “Southwest Delivery Point;” also referred to as the “Taft Hill Pumping Station”); 4. The existing connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, near the southwest corner of the intersection of Willow Springs Way and Timberline Road (the “Timberline Meter Station”); and 5. A new connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, near the northwest corner of the intersection of Ziegler Road and Rock Creek Amended and Restated Water Delivery Agreement September 30, 2013 7 Drive (the “Southeast Delivery Point;” also referred to as the “Ziegler Meter Station”). 3. Delivery of Potable Water to the City. It is the understanding of the Parties that the City’s need for delivery of potable water from the District has generally declined over time relative to the District’s need for potable water from the City. The Parties do not anticipate that the City will request water deliveries from the District to exceed any amounts beyond that necessary to offset or balance deliveries to the District under this Agreement. To the extent that the City desires that the District deliver potable water to the City, the City shall specifically request such delivery and designate the date, location and amount of water to be delivered, and the District shall deliver the potable water as requested, subject to the limitations set forth herein. The District shall only be entitled to credit for water requested by the City and actually delivered by the District pursuant to a City request. A. It is the understanding of the Parties that unplanned deliveries of water into the City’s Transmission Facilities have the potential to disrupt the functioning of the City’s System and operation of the City’s Water Treatment Plant. Water deliveries to the City other than those requested have the potential to disrupt the operation of the City’s Treatment Plant, and are not permitted. In the event that deliveries from the District to the City begin to exceed that necessary to balance previous deliveries from the City to the District, FCLWD shall immediately inform the Soldier Canyon Treatment Plant to reduce production into the Transmission Systems to a level that does not create a surplus to the City. B. In responding to the City’s request for the delivery of water, the District shall only be obligated to honor the City’s request to the extent it legally and physically has Amended and Restated Water Delivery Agreement September 30, 2013 8 surplus potable water available after meeting all the needs of its customers and provided that it is reasonably practicable for the District to operate its System so as to provide the water to the delivery points as requested and as specified in this Agreement. C. In no event, however, shall the District be obligated under this Agreement to deliver to the City more than twelve (12) million gallons of potable water in any given day or more than 1.75 billion (1,750,000,000) gallons of potable water in any Water Year; and D. For the purposes of water deliveries under this Agreement, all water deliveries from the District to the City shall be at one of the following delivery points: 1. The Cross-Tie; and 2. The Overland Pump Station. 4. Compensation for Water Delivered. No more than ten (10) days after the end of every month in each Water Year, and no more than fifteen (15) days after the end of every Water Year, for all annual charges, the City and the District shall perform an accounting to determine the amount of potable water delivered by each party to the other during the applicable billing period. The parties acknowledge and agree that the rates and charges established pursuant to this paragraph 4 incorporate surcharges, payments in lieu of taxes, and other similar additional charges at the rates established generally for City Utility customers, which will not be separately charged to the District. The charges shall be as set forth herein below, adjusted to exclude deliveries under the Water Sales Agreement, as described in paragraph 5 of the Water Sales Agreement, provided that the Water Sales Agreement remains in effect. No deliveries to the Harmony Meter Station or the Fossil Ridge Meter Station, as defined in the Water Treatment Amended and Restated Water Delivery Agreement September 30, 2013 9 Agreement, shall be considered deliveries under this Agreement or under the Water Sales Agreement. A. The District shall pay annual transmission charges to the City for delivery of water under this Agreement. 1. The District Enterprise shall pay annual transmission charges, as follows: a. Transmission charges at a rate of Six Thousand Seven Hundred and Fifty Dollars ($6,750.00) for each million gallons, or portion thereof, delivered to the Taft Hill Pumping Station on the day of the highest peak delivery during the preceding twelve (12) month period; and b. Transmission charges at a rate of Fourteen Thousand Seven Hundred and Fifty Dollars ($14,750.00) for each million gallons, or portion thereof, delivered to the Ziegler Meter Station on the day of the highest peak delivery during the preceding twelve (12) month period; and c. Transmission charges at rate of Fourteen Thousand Seven Hundred and Fifty Dollars ($14,750.00) for each million gallons, or portion thereof, delivered to the Timberline Meter Station, on the day of the highest peak delivery during the preceding twelve (12) month period. 2. If the peak day for any of the above connections occurs on the same day that the District exceeds 12 million gallons of potable water delivered from the City, the excess over 12 million gallons, which will be charged at the Amended and Restated Water Delivery Agreement September 30, 2013 10 rate in the Water Treatment Agreement (which includes transmission charges) will be deducted from the peak day calculation. 3. No less frequently than after each Water Year, the City shall invoice the District Enterprise for the total transmission charges under this Agreement and the District Enterprise. In the City’s discretion, the City may from time to time modify the frequency of billings and payment of the transmission charges by providing no less than two (2) months advance written notice to the District. B. For all water delivered under this Agreement, in any given month within a Water Year that the respective amounts requested by and delivered to each of the parties differ by no more than twelve million (12,000,000) gallons (the “Carryover Limit”), then the calculation of applicable overage charges under this subparagraph B will be carried over and incorporated into the calculation and related billing for overage charges for the succeeding month. In any month that the respective amounts requested by and delivered to each of the parties, adjusted by any carryover from the preceding month as set forth above, differ by more than the Carryover Limit, the party receiving the greater amount (the “Owing Party”) shall owe this difference to the other party (the “Owed Party”) compensation for the difference between the amount delivered and amount received by that party (the “Overage”) as described in paragraph C below: C. It is the intent of the Parties to adjust the rate payable for an Overage over approximately a three year period. The City is projecting rate increases of 4% annually over the next several years. The rate shall become equal to the full Amended and Restated Water Delivery Agreement September 30, 2013 11 treatment charges of the City beginning in calendar year 2017. For deliveries in all calendar years after 2017, the rate for overage charges shall be adjusted annually on a calendar year basis at a rate consistent with the overall rate increase to the entire customer base of the City. 1. The schedule to step into the full rate shall be as follows: a. For deliveries in the remainder of calendar year 2013 and the full calendar year 2014, treatment charges shall be due from the Owing Party to the Owed Party on the Overage calculated at the rate of One Dollar and Thirty-Five and Zero Hundredths Cents ($1.3500) per thousand gallons of metered flows. b. For deliveries in calendar year 2015, treatment charges shall be due from the Owing Party to the Owed Party on the Overage calculated at the rate of One Dollar and Sixty-Nine and Twenty Hundredths Cents ($1.6920) per thousand gallons of metered flows. c. For deliveries in calendar year 2016, treatment charges shall be due from the Owing Party to the Owed Party on the Overage calculated at the rate of Two Dollar and Three and Thirty-Eight Hundredths Cents ($2.0338) per thousand gallons of metered flows. 2. Such compensation shall be paid within thirty (30) days after the issuance of the related invoice by the Owed Party and it shall be paid by the City Enterprise or the District Enterprise, as applicable, solely from the net revenues of their respective water utilities. D. Financial obligations of the City in this paragraph 4 are intended and deemed to be Amended and Restated Water Delivery Agreement September 30, 2013 12 the legal obligation of the City Enterprise, and financial obligations of the District in this paragraph 4 are intended and deemed to be the legal obligation of the District Enterprise. E. It is the intent of the parties that overages or imbalances in water delivery amounts will be reconciled on a monthly basis, and no balances will be carried forward from Water Year to Water Year. 5. Water Quality. All potable water delivered to the City by the District and by the District to the City under this Agreement shall meet or exceed all quality standards for potable water that are required by the Environmental Protection Agency (hereinafter referred to as “the EPA”), the Colorado Department of Public Health and Environment (hereinafter referred to as “the CDPHE”)(hereinafter referred to collectively as “the Water Quality Standards”). Responsibility for ensuring that the Water Quality Standards are met for water delivered under this Agreement shall rest upon the party delivering the water up to the point of delivery and upon the party receiving the water after the point of delivery. In the event the EPA CDPHE imposes a water quality standard on the City or the District that is stricter than the standard required of the other, each party shall be required to meet that stricter standard for all potable water it delivers under this Agreement. In the event the City or the District discovers that any water delivered, being delivered or to be delivered by it under this Agreement does not meet in any respect the Water Quality Standards, it shall immediately notify the other party of the problem by telephone, followed by written notice of the problem. Regardless of the foregoing, if at any time and for any reason the City or the District has a good faith concern about whether the potable water to be delivered or being delivered to it under this Agreement meets all of the Water Quality Standards, it may refuse Amended and Restated Water Delivery Agreement September 30, 2013 13 to accept such water. Such refusal shall not be considered as a breach of or default under this Agreement. The City and the District further agree to notify the other party in writing of any proposed change to their respective water treatment processes before implementing such change if it could affect the quality of potable water delivered under this Agreement. 6. Metering and Infrastructure. In order to accurately account for the potable water delivered under this Agreement, metering, recording and telemetry devices shall be installed and maintained at the points of delivery specified in this Agreement. The City and the District agree to share with each other the data from their respective metering devices. A. The City may freely inspect each meter and metering point for any delivery point for water under this Agreement in its discretion. The City may provide testing and calibration of meters as it determines necessary to maintain accurate meter readings. B. The parties acknowledge and agree that metering of flows at each of the delivery points is critical for the effective operation of this Agreement. In the event that a District-owned meter is not properly functioning to accurately measure flows, the parties agree to first attempt to cooperatively determine the flow estimation. If agreement on estimation cannot be reached, the City reserves the right to close the affected connection between the District’s System and the City’s System, until such time as a meter that will accurately measure the flows at that delivery point is installed and operable. C. In order to enhance the efficiency and reliability of the metering of deliveries, the Parties agree that the City may, at its option, install new meters at the delivery points that will measure real-time usage. If installed by the City, upon installation Amended and Restated Water Delivery Agreement September 30, 2013 14 said meters will be operated and maintained by the City. The flow information from these meters will be used for determining the volumes of water delivered to the District and in the water accounting, instead of the water meters currently installed and owned by the District, which will no longer be in use under the Water Agreements. In the event that a dispute regarding volumes delivered for a monthly or annual billing as to an amount that exceeds the allowed twelve million (12,000,000) gallons, the City agrees to calibrate the meter at that time (if not in the usual maintenance schedule). The City will provide volume information in real time to the District in a format compatible with the District’s data collection systems. 7. Maintenance and Repairs. If the City or the District anticipates that any scheduled maintenance or repair of its respective facilities could significantly interfere with the delivery of potable water under this Agreement, that party shall give the other party, if reasonably practicable, at least seven (7) calendar days prior written notice of the scheduled maintenance or repairs. Also, when reasonably practicable, the City and the District shall attempt to schedule such maintenance and repairs during periods of low demand by the other party for potable water under this Agreement. If, however, an unscheduled interruption of service under this Agreement occurs and in order to restore such service it is necessary to make repairs to the affected facilities, the party whose facilities are affected shall promptly notify the other party of the problem and proceed with due diligence to make the needed repairs. 8. District’s Obligations with respect to Soldier Canyon Filter Plant (Soldier Canyon). The parties acknowledge and agree that the District may perform its obligations under this Agreement through Soldier Canyon to the extent they involve or relate to the delivery of water to Amended and Restated Water Delivery Agreement September 30, 2013 15 the City, including, without limitation: (a) satisfying the Water Quality Standards and the testing, monitoring and reporting requirements and standards set forth in paragraph 5, above; (b) furnishing, installing and maintaining metering, recording and telemetry devices at the Soldier Canyon Treatment Plant pursuant to paragraph 6, above; and (c) physically controlling the delivery of water to the City in accordance with paragraph 3, above., provided, however, that the District will remain responsible for satisfactory performance of its obligations as a condition of the enjoyment by the District of the benefits of this Agreement. 9. Future Cooperative Intergovernmental Agreements. The parties acknowledge that the City and the District are currently in the process of evaluating opportunities for future coordination, collaboration and shared services in order to provide efficient and cost-effective services to their respective customers. Accordingly, the parties acknowledge that the arrangements set forth in this Agreement may be superseded or modified in the future to reflect the outcome of those efforts. 10. Termination for Breach. Both the City and the District may terminate this Agreement upon a material breach by the other party of any term or condition of this Agreement if such breach continues for a substantial and unreasonable period of time, but in any event if the breach has continued for a period of sixty (60) days after receipt by the breaching party from the non- breaching party of a written notice of the existence of such breach. Notwithstanding any provision contained herein to the contrary, in no event shall the City or the District terminate this Agreement if the party at fault proceeds, after receiving said notice, with due diligence to correct or rectify the material breach regardless of the duration of such breach. Termination of this Agreement shall not, however, be the sole remedy of either party and any exercise of this right to terminate shall not preclude the pursuit of any other remedy available in law or in equity to the Amended and Restated Water Delivery Agreement September 30, 2013 16 non-breaching party. 11. Termination/Transfer. This Agreement shall continue in effect for so long as Fort Collins continues to provide treated water unless and until terminated: 1) by operation of law; or 2) by either party upon the provision of written notice of termination no less than ten (10) years in advance of the date of termination; 3) by mutual agreement of the parties or 4) in the event Fort Collins discontinues operation of its treated water system. The parties acknowledge and agree that the obligations of Fort Collins may be assigned or transferred by Fort Collins to any successor-in-interest capable of providing water service consistent with the terms of the Agreement and all applicable laws. 12. Force Majeure. Notwithstanding anything contained herein to the contrary, it is agreed that 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 any 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 any party to this Agreement, 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. 13. Cooperation of the Parties. The City and the District acknowledge that it is difficult to anticipate all of the activities, situations and other factors which may be relevant to them in satisfying their respective obligations under this Agreement. Therefore, the parties acknowledge that it will be necessary for them to cooperate with each other relative to any such unforeseen situations. In furtherance thereof, the City and the District agree that at the end of every Water Year, their representatives shall meet to discuss, in good faith, any modifications that any party Amended and Restated Water Delivery Agreement September 30, 2013 17 believes necessary or appropriate to this Agreement in order to avoid an inequitable situation. In the event that the parties shall mutually agree to any such modification, it shall only be effective if set forth in writing and signed by all of the parties hereto. 14. Governing Law and Enforceability. This Agreement 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 the City and the District by the constitutions, statutes, and rules and regulations of the State of Colorado and of the United States, and imposed upon them by the City Charter and City Code, and that, subject to such constraints, the parties intend to carry out the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, in no event shall any of the parties hereto exercise any power or take any action which shall be prohibited by applicable law. Whenever possible, each provision of this Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. 15. Indemnification. A. In connection with the City’s performance of its obligations under this Agreement, the City agrees, to the extent permitted by law, to indemnify and hold harmless the District, and their respective officers and employees, against all liabilities, claims and demands which arise from any negligent act or omission of the City, or of its officers or employees, provided that such act or omission by the City’s officers or employees occurred during the performance of their duties and within the scope of their employment. In addition, the City agrees, to the extent permitted by law, to indemnify the District, and their respective officers and employees, from all costs and expenses related to defending such liabilities, Amended and Restated Water Delivery Agreement September 30, 2013 18 claims and demands, including but not limited to, litigation costs and reasonable attorney’s fees whether or not any such liabilities, claims and demands are groundless, frivolous, false or fraudulent. B. In connection with the District’s performance of its obligations under this Agreement, the District agrees, to the extent permitted by law, to indemnify and hold harmless the City, and their respective officers and employees, against all liabilities, claims and demands which arise from any negligent act or omission of the District, or of its officers or employees, provided that such act or omission by the District’s officers or employees occurred during the performance of their duties and within the scope of their employment. In addition, the District agrees, to the extent permitted by law, to indemnify the City, and their respective officers and employees, from all costs and expenses related to defending such liabilities, claims and demands, including but not limited to, litigation costs and reasonable attorney’s fees, whether or not such liabilities, claims and demands are groundless, frivolous, false or fraudulent. To the extent the District will rely on third parties, such as Soldier Canyon, to carry out elements of the District’s performance hereunder, the District shall be responsible for ensuring any such third parties provide adequate insurance, warranties and performance to protect the City from loss or damage from any such performance, and the District shall be liable to the City for claims, demands or losses of or by the City that are not cured or remedied by, or for which the District has not secured full recourse for the benefit of the City against such third parties. Amended and Restated Water Delivery Agreement September 30, 2013 19 16. Inspection of Records. Each party agrees to allow each of the other parties to this Agreement to inspect and copy at reasonable times, with reasonable advance notice, all of its relevant records needed by any other party to verify the quantities of potable water delivered under this Agreement and to verify compliance with the standards and requirements of this Agreement. 17. Assignment. This Agreement shall not be assigned by any of the parties hereto without the prior written consent of all the other parties hereto, each in its sole discretion. 18. Default/Remedies/Immunity. If any party fails to comply with the provisions of this Agreement, the other party or parties, after providing written notification to the noncomplying party and upon the failure of the noncomplying party or parties to achieve compliance within thirty (30) days, may seek all such remedies as are available under Colorado law, including but not limited to termination of this Agreement, or actual damages, but excluding any exemplary and/or consequential damages. In the event litigation is required to enforce this Agreement, the prevailing party or parties shall be entitled to payment by the defaulting party or parties of actual attorneys’ fees and costs incurred. Nothing in this paragraph 18 or any other provision of this Agreement shall, however, be construed as a waiver of the notice requirements, defenses, immunities, and limitations any of the Parties may have under the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq., or any other defenses, immunities, or limitations of liability available by law. The duties and obligations imposed by this Agreement 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 Agreement in connection with each particular duty, obligation, right, and remedy to which they apply. Amended and Restated Water Delivery Agreement September 30, 2013 20 19. Applicable Law. The laws of the State of Colorado and rules and regulations issued pursuant thereto, except for choice of law principles, will be applied in the interpretation, execution and enforcement of this Agreement. 20. Notices. Other than invoice billings which may be sent by first class mail or electronic mail, any notice, request, demand, consent or approval, or other communication required or permitted hereunder will be in writing and may be personally delivered, or deposited in the United States mail or accepted for delivery by an overnight delivery service, with proper postage and address as follows: District: District Manager Fort Collins-Loveland Water District 5150 Snead Dr. Fort Collins, CO 80525 City: Utilities Executive Director City of Fort Collins P.O. Box 580 700 Wood Street Fort Collins, CO 80522-0580 Any party hereto may at any time designate a different person or address for purposes of receiving notice by so informing the other parties in writing. Notice shall be deemed effective upon actual receipt thereof, or three (3) days after being deposited in the United States mail or accepted by an overnight delivery service, whichever first occurs. 21. Complete Agreement. To the extent provided herein, this Agreement supersedes any and all prior written or oral agreements and there are no covenants, conditions, or agreements between the parties except as set forth herein. No prior or contemporaneous addition, deletion, or other amendment hereto will have any force or affect whatsoever unless embodied herein in writing. Amended and Restated Water Delivery Agreement September 30, 2013 21 22. No Third Party Beneficiary. The terms and conditions of this Agreement, and all rights of action relating thereto, are strictly reserved to the parties, and nothing in this Agreement shall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement. Any person and/or entity, other than the parties receiving services or benefits under this Agreement, shall be deemed an incidental beneficiary only. 23. Relationship of Parties. This Agreement does not create and shall not be construed as creating a relationship of joint ventures, partners, or employer-employee, between the Parties. The Parties intend that this Agreement be interpreted as creating an independent contractor relationship. Pursuant to that intent, it is agreed that the conduct and control of the duties required by the Agreement shall lie solely with each Party respectively, and each Party shall be free to exercise reasonable discretion in the performance of its individual duties under this Agreement. Neither Party shall, with respect to any activity, be considered an agent or employee of the other Party. 24. Waiver. No waiver or delay of enforcement by any of the parties hereto of any of the terms and conditions of this Agreement 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 Agreement be deemed to constitute a waiver of any subsequent breach of the same provision of this Agreement. 25. Construction. This Agreement shall be construed according to its fair meaning and as if it was prepared by all the 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 Agreement, unless set forth in writing and signed by all of the parties hereto. Paragraph headings in this Agreement are for convenience of reference only and shall in no way define, limit or prescribe the Amended and Restated Water Delivery Agreement September 30, 2013 22 scope or intent of any provision of this Agreement. 26. Severability. If any provision of this Agreement, or the application of such provision to any person, entity or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons, entities or circumstances other than those in which it was held invalid, shall not be affected. 27. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as of November 1, 2013. IN WITNESS WHEREOF the Parties have each executed this Agreement as of the date and year first above written. THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation ATTEST: By: Karen Weitkunat, Mayor ___________________________ City Clerk APPROVED AS TO FORM: ____________________________ Deputy City Attorney CITY OF FORT COLLINS WATER UTILITY ENTERPRISE, An Enterprise of the City ATTEST: By: Karen Weitkunat, President ___________________________ City Clerk Amended and Restated Water Delivery Agreement September 30, 2013 23 FORT COLLINS-LOVELAND WATER DISTRICT, A Political Subdivision of the State of Colorado ATTEST: By: _______________, President ___________________________ _______________, Secretary FORT COLLINS-LOVELAND WATER DISTRICT ENTERPRISE, An Enterprise of the District ATTEST: By: ___________________, President ___________________________ ________________, Secretary By its signature below, the Soldier Canyon Filter Plant agrees that it is no longer a party to this Agreement and has no further rights or responsibilities hereunder. SOLDIER CANYON FILTER PLANT, A Governmental Entity Created by Intergovernmental Agreement ATTEST: By: _____________________, President ___________________________ ___________________, Secretary - 1 - ORDINANCE NO. 136, 2013 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT FOR WATER TREATMENT SERVICES WITH THE FORT COLLINS-LOVELAND WATER DISTRICT, THE FORT COLLINS-LOVELAND WATER DISTRICT ENTERPRISE, AND THE CITY OF FORT COLLINS WATER UTILITY ENTERPRISE WHEREAS, the City is a home rule municipality organized and existing under Colorado law that owns a water system through which it treats, transmits and distributes potable water (the “City Water System”); and WHEREAS, as part of the City Water System, Fort Collins operates a water treatment plant located at 4316 LaPorte Avenue, Fort Collins, Colorado (the “City Treatment Plant”); and WHEREAS, the District is a special district organized and existing under Colorado law that also operates a water system (the “District Water System”) to distribute potable water through a variety of water transmission facilities located within Larimer County, Colorado (“District Transmission Facilities”); and WHEREAS, the City and the District have previously entered into that certain Intergovernmental Agreement for Delivery of Potable Water, dated January 19, 1999, which provides for the delivery of treated water by the City and the District to each other on demand, as available, to meet day-to-day demands for delivery of potable water to their respective customers, and WHEREAS, the City Council has on this date considered and adopted Ordinance No. __, 2013, approving and authorizing the Mayor to sign an Amended and Restated Intergovernmental Agreement for Delivery of Potable Water (“Water Delivery Agreement”); and WHEREAS, the City and the District have also previously entered into that certain Intergovernmental Agreement for the Sale and Delivery of Potable Water dated April 16, 2001, as amended on July 11, 2006 (the “Water Sales Agreement”), which Water Sales Agreement provides for the City to sell and deliver potable water to the District in order for the District to provide potable water to District customers in approved subdivisions and developments that have been annexed into the City; and WHEREAS, in addition to the arrangements in the above-described agreements, it is the desire of the District to purchase from Fort Collins the capability to procure water treatment service consistent with Article XII, Section 4 of the Charter of the City of Fort Collins; and WHEREAS, accordingly, the City and the District have negotiated the terms and conditions set forth in the Intergovernmental Agreement for Treated Water Service, attached hereto as Exhibit “A” and incorporated herein by this reference (the “Agreement”); and WHEREAS, pursuant to C.R.S. '29-1-203(1), the City and the District are authorized to - 2 - cooperate or contract with one another to provide any function, service or facility lawfully authorized to each of them; and WHEREAS, Article II, Section 16 of the Charter of the City of Fort Collins (“Charter”) additionally provides that the City Council may, by resolution or ordinance, enter into contracts with other governmental bodies to furnish governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS, Article XII, Section 6 of the Charter provides that the City Council shall by ordinance from time to time fix, establish, maintain, and provide for the collection of such rates, fees or charges for water and electricity, as will produce revenues sufficient to pay the cost of operation and maintenance of the utilities in good repair and working order, and for other enumerated purposes; and WHEREAS, the City Enterprise and the District Enterprise were created by the City and the District, respectively, in order to comply with the provisions of Section 20, Article X of the Colorado Constitution and Article 45.1 of Title 37 of the Colorado Revised Statutes in order to permit the City and the District, acting through their respective enterprise, to issue revenue bonds and enter into multi-year fiscal obligations in connection with their operation of a water utility; and WHEREAS, the City Enterprise and the District Enterprise are made parties to the Agreement solely for the purpose of entering into any multi-year fiscal obligation imposed under this Agreement; and WHEREAS, the City Enterprise is authorized in Section 26-43 of the Code of the City of Fort Collins to enter into contracts relating to the City’s water system. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Council hereby approves the Agreement, including the rates, fees and charges set forth in the Agreement, and finds and determines the Agreement to be for the benefit of the City Water Utility and its ratepayers. Section 2. That the Council hereby authorizes the Mayor to execute the Agreement on behalf of the City, in substantially the form attached hereto as Exhibit “A”, together with such modifications and additions as the City Manager, in consultation with the City Attorney, determines necessary and appropriate to protect the interests of the City or further the purposes of this Ordinance. - 3 - Introduced, considered favorably on first reading, and ordered published this 1st day of October, A.D. 2013, and to be presented for final passage on the 15th day of October, A.D. 2013. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of October, A.D. 2013. __________________________________ Mayor ATTEST: _______________________________ City Clerk IGA FOR WATER TREATMENT September 30, 2013 1 INTERGOVERNMENTAL AGREEMENT FOR WATER TREATMENT SERVICE CAPACITY BETWEEN THE CITY OF FORT COLLINS, COLORADO AND THE FORT COLLINS-LOVELAND WATER DISTRICT This AGREEMENT is entered into this _____ day of ____________, 2013, by and between the CITY OF FORT COLLINS, Colorado, a home rule municipality (the "City"), the CITY OF FORT COLLINS WATER UTILITY ENTERPRISE (the "City Enterprise") (together referred to hereinafter as "Fort Collins") the FORT COLLINS- LOVELAND WATER DISTRICT, a political subdivision of the State of Colorado, (hereinafter referred to as “the District”), the FORT COLLINS-LOVELAND WATER DISTRICT ENTERPRISE, an enterprise of the District (hereinafter referred to as “the District Enterprise”). Collectively Fort Collins and the District may be referred to herein as “Parties” or each a “Party.” WHEREAS, pursuant to Article XIV, Section 18 of the Constitution of the State of Colorado, Article II, Section 16 of the Charter of the City of Fort Collins, and Section 29-1-203(1) and Section 32-1-1001 of the Colorado Revised Statutes, the Parties may cooperate or contract with one another to provide any function, service or facility lawfully authorized to each of the cooperating or contracting units of government; and WHEREAS, the City is a home rule municipality organized and existing under Colorado law that owns a water system through which it treats, transmits and distributes potable water (the “City Water System”); and WHEREAS, as part of the City Water System, Fort Collins operates a water treatment plant located at 4316 LaPorte Avenue, Fort Collins, Colorado (the “City Treatment Plant”); and WHEREAS, the District is a special district organized and existing under Colorado law that also operates a water system (the “District Water System”) to distribute potable water through a variety of water transmission facilities located within Larimer County, Colorado (“District Transmission Facilities”); and WHEREAS, the City Enterprise and the District Enterprise were created by the City and the District, respectively, in order to comply with the provisions of Section 20, Article X of the Colorado Constitution and Article 45.1 of Title 37 of the Colorado Revised Statutes in order to permit the City and the District, acting through their respective enterprise, to issue revenue bonds and enter into multi-year fiscal obligations in connection with their operation of a water utility; and WHEREAS, the City Enterprise and the District Enterprise are made parties to this Agreement solely for the purpose of entering into any multi-year fiscal obligation required under this Agreement; and IGA FOR WATER TREATMENT September 30, 2013 2 WHEREAS, the District has previously entered into that certain “Amended Intergovernmental Agreement” dated December 9, 1995, (the “Soldier Canyon IGA”) with the East Larimer County Water District (“ELCO”) and the North Weld County Water District (“NWCWD”); and WHEREAS, the Soldier Canyon IGA created Soldier Canyon as a separate governmental entity pursuant to C.R.S. Section 29-1-203; and WHER EAS, the Soldier Canyon IGA provides that Soldier Canyon shall be responsible for the operation, maintenance and management of the water treatment plant located at 4424 LaPorte Avenue, Fort Collins, Colorado, which is jointly owned by the District, ELCO and NWCWD (the “Soldier Canyon Treatment Plant”); and WHEREAS, the parties, together with Soldier Canyon, have previously entered into that certain Intergovernmental Agreement for Delivery of Potable Water, dated January 19, 1999, which provides for the delivery of treated water by the City and the District to each other on demand, as available, to meet day-to-day demands for delivery of potable water to their respective customers, and WHEREAS, the parties to the said Intergovernmental Agreement for Delivery of Potable Water have, as of November 1, 2013, adopted revisions to the same, entitled Amended and Restated Intergovernmental Agreement for Delivery of Potable Water (“Water Delivery Agreement”); and WHEREAS, the City and the District have also previously entered into that certain Intergovernmental Agreement for the Sale and Delivery of Potable Water dated April 16, 2001, as amended on July 11, 2006 (the “Water Sales Agreement”), which Water Sales Agreement provides for the City to sell and deliver potable water to the District in order for the District to provide potable water to District customers in approved subdivisions and developments that have been annexed into the City; and WHEREAS, in addition to the arrangements in the above-described agreements, it is the desire of the District to purchase from Fort Collins the capability to procure water treatment service consistent with Article XII, Section 4 of the Charter of the City of Fort Collins; and WHEREAS, accordingly, the parties have negotiated the terms and conditions set forth in this Intergovernmental Agreement for Treated Water Service. NOW, THEREFORE, in consideration of the promises, the mutual covenants and agreements herein contained, the service to be rendered by Fort Collins and the payments to be made by the District as well as transfer of certain raw water owned by the District to be made by the District to Fort Collins as herein set forth, and the satisfactory performance of all conditions and requirements set forth herein, it is hereby agreed by and between the parties as follows: IGA FOR WATER TREATMENT September 30, 2013 3 1. City Code. All terms and conditions of water treatment service between the District and Fort Collins will be as described in this Agreement and the City of Fort Collins City Code. 2. Term. This Agreement shall be effective as of January 1, 2014 (the “Effective Date”), and shall continue in effect until terminated in accordance with paragraph 10, hereinafter, by court order or by operation of law. 3. Services Provided. Fort Collins agrees to sell and provide water treatment service to delivery points from the City Water System to the District Transmission Facilities that are described below in paragraph 4. The Parties agree that the District will be solely responsible for any expenses or costs associated with the connections. The provision of such water treatment service by Fort Collins to the District is expressly contingent upon payment by the District for service, transfer of raw water as more fully described in paragraph 8 below, and the District’s compliance with regulatory requirements applicable to the delivery of potable water. Further, any obligation by Fort Collins to provide water treatment service to the District is subject to reductions, restrictions, limitations and surcharges, if any, that the City may establish in the future to manage its water supply or water system capacity that may be imposed on any other customer of the City. 4. Points of Delivery. For the purposes of water deliveries under this Agreement, as well as water sales under the Water Sales Agreement, all water deliveries from the City to the District shall be at one of the following delivery points, as shown on Exhibit A, attached hereto and incorporated herein by this reference: A. The cross-tie connection between the City’s Treatment Plant and the Soldier Canyon Treatment Plant located at the City’s Treatment Plant (the “Cross-Tie”); B. The connection between the District’s Transmission Facilities and the City’s Transmission Facilities located in Fort Collins, Colorado, together with associated pumping facilities, north of the intersection of Elizabeth St and Overland Trail (the “Overland Pump Station”). C. The connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, at the southeast corner of the intersection of Harmony Road and Taft Hill Road (the “Southwest Delivery Point;” also referred to as the “Taft Hill Pumping Station”); D. The connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, near the southwest corner of the intersection of Willow Springs Way/Kechter Road and Timberline Road (the “Timberline Meter Station”); E. The connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, near the IGA FOR WATER TREATMENT September 30, 2013 4 northwest corner of the intersection of Ziegler Road and Rock Creek Drive (the “Southeast Delivery Point;” also referred to as the “Ziegler Meter Station”); F. A connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, near the southeast corner of the intersection of Ziegler Road and Harmony Road and metered approximately 900 feet to the east (the “Harmony Meter Station”), to be constructed pursuant to plans and specifications reasonably satisfactory to the City. G. A connection between the City’s Transmission Facilities and the District’s Transmission Facilities located in Fort Collins, Colorado, near the Rock Creek Drive entrance to Fossil Ridge High School east of the intersection of Ziegler Road and Rock Creek Drive (the Fossil Ridge Meter Station”), to be constructed pursuant to plans and specifications reasonably satisfactory to the City. 5. Integration with Deliveries Under Existing Agreements. The respective obligations of the District and the City hereunder are independent of deliveries or sales of potable water under existing agreements between Fort Collins and the District. As of the effective date of this Agreement, Fort Collins provides potable water to the District at the delivery points described above in subparagraphs A through E pursuant to the Water Sales Agreement and the Water Delivery Agreement (the “Existing Agreements”). All water delivered to the Harmony Meter Station and the Fossil Ridge Meter Station is deemed to have been delivered under this Water Treatment Agreement. It is the parties’ intent that deliveries of water under the Existing Agreements shall be determined, invoiced and subject to the terms and limitations set forth in those agreements, and that the water treatment services to be provided to the District hereunder shall be supplemental to the deliveries and sales provided thereunder. 6. Maximum service limit. Fort Collins will treat water for the District at a maximum rate of 1.825 billion (1,825,000,000) gallons during any Water Year and not to exceed 5 million (5,000,000) gallons per day. For the purposes of this Agreement, a Water Year is intended to mean the period starting November 1 of a given calendar year and extending through October 31 of the following calendar year. This maximum service limit has been determined based upon the District’s agreement to pay Water Plant Investment Fees as described in paragraph 7 below. The maximum amount of water treatment service identified herein will not increase unless and until, upon the written request of the District, Fort Collins at its sole discretion elects to increase the amount of annual water treatment service, additional plant investment fees and any other applicable fees or charges are paid, and the Parties execute a written addendum to this Agreement. 7. Payment for Service. In exchange for the water treatment services provided to the District as described in paragraph 3, the District shall pay to Fort Collins each of the fees and charges set forth in this Agreement and shall transfer raw water to Fort Collins as more fully described in paragraph 8 below. The fees and charges for water treatment service set forth herein shall be as established by Fort Collins from time IGA FOR WATER TREATMENT September 30, 2013 5 to time as more fully described below. The initial rates and charges are outlined below. Fort Collins approves its rate modifications in October/November of each year with the effective date the immediately following January 1. Fort Collins shall include the District in all rate adjustment communications provided to other customers and Key Accounts of the Utility. A. The approach used to determine the level for the District’s permanent allocation of water treatment service is based on Water Plant Investment Fees paid by the District. The District shall pay Water Plant Investment Fees at a rate consistent with the fee amount determined to be appropriate by Fort Collins in its annual or semi-annual review of such fees conducted most recent to the time at issue. The Water Plant Investment Fee for the District at the time of execution of this Agreement is $2.52 per gallon of peak day use. Fort Collins’ obligation to provide water treatment services pursuant to this paragraph 7A is contingent upon payment of Water Plant Investment Fees. Payment of such fees will not allow the District to increase the maximum service limit without amendment of this Agreement as described in paragraph 6. B. The Water Plant Investment Fee shall be Twelve million Six hundred thousand dollars ($12,600,000). The District will pay the City Two million Five hundred Twenty thousand dollars ($2,520,000) prior to any deliveries under this Agreement, but in no event later than January 15, 2014. The remainder of the Water Plant Investment Fee, Ten million Eight thousand dollars ($10,080,000) shall be amortized over a period of twenty (20) years at an annual percentage rate of five percent (5%). Payments shall be made on a monthly basis in the amount of Sixty-six thousand Five hundred and twenty-four dollars ($66,524). C. The negotiated rate for calendar year 2013 for water treatment and transmission service is $2.1093 per one thousand gallons. Fort Collins may adjust the water treatment service rate for years after 2013 in accordance with the results of any cost of service study Fort Collins may conduct or in accord with overall rate changes made by the City Council of Fort Collins to the entire customer base of the City. The parties acknowledge and agree that the water treatment and transmission charges established pursuant to this subparagraph incorporate surcharges, payments in lieu of taxes, and other similar additional charges at the rates established generally for City Utility customers, which will not be separately charged to the District. D. Fort Collins may apply any other direct and indirect charges for incidental services requested by the District and normally applied for water treatment service as provided in Section 26-712 of the City Code. E. Calculation of the quantity of Water Treatment Service provided under this Agreement shall be calculated as the sum of the following: IGA FOR WATER TREATMENT September 30, 2013 6 1. The quantity delivered through the “Harmony Meter Station” described in Section 4.F. above; 2. The quantity delivered through the “Fossil Ridge Meter Station” described in Section 4.G. above; and 3. The quantity transferred daily under the Water Delivery Agreement in excess of the limits set forth in the Water Delivery Agreement. 8. Additional Requirements for Water Service. As a condition of receiving the water treatment service provided hereunder, the District agrees to transfer water from the Colorado Big-Thompson Project (“CBT”) as follows: A. The District will assign to Fort Collins CBT raw water in an amount equal to the volume of water treated by Fort Collins for the District under this Agreement (the “Raw Water Amount”). The transfer of the Raw Water Amount for each month shall take place no later than ten (10) days after the end of such previous calendar month. B. In the event that Fort Collins or the District have reason to expect a significant change in the District’s level of treated water demand or other extraordinary occurrences affecting water supplies or water demands during the Water Year, the parties will cooperate in an effort to make additional transfers and accomplish any operational adjustments that may need to be made, at no cost to the City. C. All transfers of CBT water shall be made in accordance with rules established by the Northern Colorado Water Conservancy District (“NCWCD”). D. The District agrees that all treated water provided to the District hereunder shall be used in accordance with the applicable rules, policies and other requirements of the NCWCD. 9. Metering/Infrastructure. Metering, recording and telemetry devices shall be installed and maintained at the District’s expense at the points of delivery specified in this Agreement in a manner satisfactory to Fort Collins, so as to accurately account for the treated water provided to the District under this Agreement. The City and the District agree to share with each other the data from their respective metering devices. A. The City may freely inspect each meter and metering point for any delivery point for water under this Agreement in its discretion. The City may provide testing and calibration of meters as it determines necessary to maintain accurate meter readings. B. The parties acknowledge and agree that metering of flows at each of the delivery points is critical for the effective operation of this Agreement. In the event that a District-owned meter is not properly functioning to accurately measure flows, the parties agree to first attempt to cooperatively determine the IGA FOR WATER TREATMENT September 30, 2013 7 flow estimation. If agreement on estimation cannot be reached, the City reserves the right to close or require the District to close the affected connection between the District’s System and the City’s System, until such time as a meter that will accurately measure the flows at that delivery point is installed and operable. C. In order to enhance the efficiency and reliability of the metering of deliveries, the Parties agree that the City may, at its option, install new meters at the delivery points that will measure real-time usage. If installed by the City, upon installation said meters will be operated and maintained by the City. The flow information from these meters will be used for determining the volumes of water delivered to the District and in the water accounting, instead of the water meters currently installed and owned by the District, which will no longer be in use under the Existing Agreements. In the event that a dispute regarding volumes delivered for a monthly or annual billing as to an amount that exceeds 2% of the metered volumes, the City agrees to calibrate the meter at that time (if not in the usual maintenance schedule). The City will provide volume information in real time to the District in a format compatible with the District’s data collection system. In such event the District will no longer be obligated to operate and maintain its own meters in such locations for the purposes of this Agreement. 10. Termination/Transfer. This Agreement shall continue in effect for so long as Fort Collins continues to provide treated water unless and until terminated: 1) by operation of law; or 2) by the District upon the provision of written notice of termination to Fort Collins no less than ten (10) years in advance of the date of termination; 3) by mutual agreement of the parties or 4) in the event Fort Collins discontinues operation of its treated water system. The parties acknowledge and agree that the obligations of Fort Collins may be assigned or transferred by Fort Collins to any successor-in-interest capable of providing water service consistent with the terms of the Agreement and all applicable laws. In no event shall the District be entitled to a refund of fees or charges paid to Fort Collins hereunder. Capacity of Treated Water purchased by the District at the time of termination shall be adjusted to reflect the sum of amortized payment received by the City. 11. District Information. The District agree to cooperate with Fort Collins to provide such information as Fort Collins may require in order to reconcile the records of Fort Collins and the District, and request information in order to confirm the nature, extent and circumstances of water treatment service utilized or accessed by the District or connected to the Fort Collins water system. The parties acknowledge that all or portions of the information provided hereunder may constitute confidential information pursuant to the Colorado Open Records Act or other applicable law, and agree that Fort Collins shall, as a condition of receipt of such information, protect the same from public disclosure to the extent required by law. 12. Water Quality Requirements. The City agrees to make its best efforts to deliver potable water to the District under this Agreement that meets or exceeds the quality standards for potable water that are required by the Environmental Protection Agency (hereinafter referred to as “the EPA”), the Colorado Department of Public Health IGA FOR WATER TREATMENT September 30, 2013 8 and Environment (hereinafter referred to as “the CDPHE”) (hereinafter referred to collectively as “the Water Quality Standards”). Responsibility for ensuring that the Water Quality Standards are met for water delivered under this Agreement shall rest upon the City up to the point of delivery and upon the District after the point of delivery. In meeting the Water Quality Standards, the City and the District agree to comply with all monitoring, testing, reporting and consumer notification requirements established by the EPA and the CDPHE for potable water for their respective systems. In the event the City or the District discovers that any water delivered, being delivered or to be delivered under this Agreement does not meet in any respect the Water Quality Standards, it shall immediately notify the other party of the problem by telephone, followed by written notice of the problem. 13. Force Majeure. Fort Collins shall provide the services as set forth herein, subject to the general requirements applicable to the Fort Collins water system by law, including the Code of the City of Fort Collins, as the same may from time to time be modified or amended. Fort Collins shall not be liable for any failure, default or delay in any service provided for under this Agreement caused by strikes, acts of God, unavoidable accidents or contingencies of any nature whatsoever beyond its control. 14. Default/Remedies. If either party fails to comply with the provisions of this Agreement, the other party, after providing written notification to the noncomplying party and upon the failure of the noncomplying party to achieve compliance within ninety (90) days, may seek all such remedies as are available under Colorado law, including but not limited to termination of this Agreement, actual damages, specific performance and injunctive relief, or forfeiture of investment and all rights by the District to further service by Fort Collins, as applicable, but excluding any exemplary and/or consequential damages. In the event litigation is required to enforce this Agreement, the prevailing party(ies) shall be entitled to payment by the defaulting party of its actual attorneys’ fees and costs incurred. Nothing in this paragraph 14 or any other provision of this Agreement shall, however, be construed as a waiver of the notice requirements, defenses, immunities, and limitations any of the Parties may have under the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq., or any other defenses, immunities, or limitations of liability available by law. The duties and obligations imposed by this Agreement 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 Agreement in connection with each particular duty, obligation, right, and remedy to which they apply. 15. Applicable Law. The laws of the State of Colorado and rules and regulations issued pursuant thereto, except for choice of laws principles, will be applied in the interpretation, execution and enforcement of this Agreement. Any provision of this Agreement, whether or not incorporated herein by reference, which provides for arbitration by an extra-judicial body or person or which is otherwise in conflict with said laws, rules and regulations will be considered null and void. In addition, the parties hereto recognize that there are legal constraints imposed upon them by the constitution, IGA FOR WATER TREATMENT September 30, 2013 9 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 constraints, the parties intend to carry out the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement 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 Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. 16. Notices. Other than invoice billings which may be sent by first class mail or electronic mail, any notice, request, demand, consent or approval, or other communication required or permitted hereunder will be in writing and may be personally delivered, or deposited in the United States mail or accepted for delivery by an overnight delivery service, with proper postage and address as follows: To the District District Manager or the District Fort Collins-Loveland Water District Enterprise: 5150 Snead Dr. Fort Collins, CO 80525 To the City: Utilities Executive Director or the City City of Fort Collins Enterprise P.O. Box 580 700 Wood Street Fort Collins, CO 80522-0580 Any party hereto may at any time designate a different person or address for purposes of receiving notice by so informing the other parties in writing. Notice shall be deemed effective upon actual receipt thereof, or three (3) days after being deposited in the United States mail or accepted by an overnight delivery service, whichever first occurs. 17. Complete Agreement. This Agreement, including all exhibits, supersedes any and all prior written or oral agreements and there are no covenants, conditions, or agreements between the parties except as set forth herein. No prior or contemporaneous addition, deletion, or other amendment hereto will have any force or affect whatsoever unless embodied herein in writing. 18. No Third Party Beneficiary. The terms and conditions of this Agreement, and all rights of action relating thereto, are strictly reserved to the parties, and nothing in this Agreement shall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement. Any person and/or entity, other than the parties receiving services or benefits under this Agreement, shall be deemed an incidental beneficiary only. 19. No Improper Acts. The signatories aver that to their knowledge, no officer or employee of their respective entities has taken any action in connection with the negotiation or approval of this Agreement that constitutes a violation of Colorado IGA FOR WATER TREATMENT September 30, 2013 10 law, including but not limited to the abuse of fiduciary duty to the people of the State of Colorado, failure to properly disclose any conflict of interest in the service or property described herein, or failure to comply with the requirements of Section 24-18-109 and Section 32-1-902 of the Colorado Revised Statutes, as they may from time to time be amended or renumbered. 20. No Waiver. The waiver or delay of enforcement of one or more terms of this Agreement shall not constitute a waiver of the remaining terms. The waiver or delay in enforcement regarding any breach of this Agreement shall not constitute a waiver of any terms of the Agreement. 21. Relationship of Parties. This Agreement does not create and shall not be construed as creating a relationship of joint ventures, partners, or employer-employee, between the Parties. The Parties intend that this Agreement be interpreted as creating an independent contractor relationship. Pursuant to that intent, it is agreed that the conduct and control of the duties required by the Agreement shall lie solely with each Party respectively, and each Party shall be free to exercise reasonable discretion in the performance of its individual duties under this Agreement. Neither Party shall, with respect to any activity, be considered an agent or employee of the other Party. 22. Modification of Agreement. This Agreement may be modified, amended, changed or terminated, except as otherwise provided herein, in whole or in part, only by an agreement in writing duly authorized and executed by both Parties. No consent of any third party shall be required for the negotiation and execution of any such agreement. 23. Assignment. No transfer or assignment of this Agreement or of any rights hereunder shall be made by either Party without the prior written consent of the other, which consent shall not be unreasonably withheld. 24. Severability. In the event any court of competent jurisdiction shall hold any provision of this Agreement invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision hereof. 25. Venue For Enforcement Actions. In the event of a dispute between the parties which results in litigation, the exclusive venue for such action shall be the District Court in and for the County of Larimer, State of Colorado. 26. Instruments of Further Assurance. The Parties each covenant that they will do, execute, acknowledge, and deliver or cause to be done, executed, acknowledged, and delivered, such acts, instruments, and transfers as may be reasonably required for the performance of their obligations hereunder. 27. Binding Agreement. The terms, provisions and covenants of this agreement shall be binding upon the parties hereto, their successors and assigns. IGA FOR WATER TREATMENT September 30, 2013 11 IN WITNESS WHEREOF, the said City has caused this agreement to be executed by its Mayor, attested to by its City Clerk with the corporate seal of said City hereunto affixed, the said District have caused this agreement to be executed by its president, and the City Enterprise and the District Enterprise have each cause this agreement to be executed by its respective president, as of the day and year first above written, in duplicate. THE CITY OF FORT COLLINS A Municipal Corporation By: __________________________ Mayor ATTEST: APPROVED AS TO FORM: _________________________ ________________________ City Clerk Deputy City Attorney CITY OF FORT COLLINS WATER UTILITY ENTERPRISE An Enterprise of the City By: __________________________ Enterprise President ATTEST: _____________________ Enterprise Secretary FORT COLLINS-LOVELAND WATER DISTRICT, A Political Subdivision of the State of Colorado ATTEST: By: , President ___________________________ , Secretary IGA FOR WATER TREATMENT September 30, 2013 12 FORT COLLINS - LOVELAND WATER DISTRICT ENTERPRISE, An Enterprise of the District ATTEST: By: , President ___________________________ , Secretary ! ! ! ! ! ! ! A - Cross-Tie B PumOpverland - Station C Delivery - Southwest Point D MetTeirmberline - Station E Delivery - Southeast Point F MetHearrmony - Station G RidgFeossil - Meter Station !"`$ ³I ÕZYXW ÉZYXW üZYXW S College Ave Carp e nter Rd W Mulberry St W Drake Rd N Timberline Rd E Harmony R d Highway 392 W Vine Dr N Taft H ill R d W Harmony Rd E County Road 3 2 E Vine Dr W Prospect Rd E P rospect Rd Mountain Vista Dr E Drake Rd N Lemay Ave E Horsetooth Rd S Lemay A v e S Taft Hill Rd Ziegler Rd N College Ave N Shields St S Timberline Rd U n i o n P a c i f i c R a i l r o a d Burlington Northern Railroad Uni on Pa cifi c R ailr oa d Burlington Northern Railroad Great Western Railway City of Fort IGA Collins for Water and Treatment Fort Collins-Service Loveland Capacity Water District CITY GEOGRAPHIC These and were map OF not products FORT designed and INFORMATION COLLINS or all intended underlying for general data SYSTEM are use developed by members MAP for use PRODUCTS of the by the public. City The of Fort City Collins makes for no its representation internal purposes or only, warranty dimensions, as to contours, its accuracy, property timeliness, boundaries, or completeness, or placement and of location in particular, of any its map accuracy features in thereon. labeling or THE displaying CITY OF FORT COLLINS PARTICULAR MAKES PURPOSE, NO WARRANTY EXPRESSED OF MERCHANTABILITY OR IMPLIED, WITH OR RESPECT WARRANTY TO THESE FOR FITNESS MAP PRODUCTS OF USE FOR OR THE UNDERLYING FAULTS, and assumes DATA. Any all responsibility users of these of map the use products, thereof, map and applications, further covenants or data, and accepts agrees them to hold AS the IS, City WITH harmless ALL from made and this against information all damage, available. loss, Independent or liability arising verification from any of all use data of contained this map product, herein should in consideration be obtained of by the any City's users having of these liability, products, whether or direct, underlying indirect, data. or consequential, The City disclaims, which and arises shall or not may be arise held from liable these for any map and products all damage, or the loss, use thereof or by any person or entity. Printed: October 07, 2013 0 1 2 3Miles © Exhibit A - Points of Delivery ! Points of Delivery Fort Collins Utilities (Water) Fort Collins-Loveland Water District City Limits Growth Management Area MXD: FCLWD IGA EXHIBIT A