HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/01/2013 - ITEMS RELATING TO THE FORT COLLINS-LOVELAND WATERDATE: 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
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.
October 1, 2013 -2- ITEM 13
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,
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.
October 1, 2013 -3- ITEM 13
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
Attachment 3
1
M E M O R A N D U M
DATE: September 18, 2012
TO: Brian Janonis, Utilities Executive Director
Mike Beckstead, Chief Financial Officer City of Fort Collins
Kevin Gertig, Water Resources / Treatment Operations Manager
Lisa Voytko, Water Production Manager
FROM: Donnie Dustin, Water Resource Manager
Lance Smith, Strategic Financial Planning Manager
RE: Updated estimation of excess capacity at the Water Treatment Facility in 2035
The Water Treatment Facility (WTF) Master Plan reviews the plant capacity, including future
demands, on a five year basis. The excess capacity should be determined and re‐assessed for
each update of the Plant Investment Fees. The available capacity is also important for
evaluating potential water sales and water share agreements so the impact of any such
agreements on long‐term planning is understood beforehand.
The WTF currently has a maximum daily capacity of 87 million gallons per day (MGD). As the
graph below shows, peak daily demand has declined in recent years from it previous peak in
1997. This is a result of the decrease in gallon per capita water usage following the water
restrictions in 2003 and the subsequent water conservation programs implemented by the City.
This memo summarizes the analysis used to determine the current projection of excess capacity
at build‐out in 2035.
Highest Daily Production (MG)
0.00
10.00
20.00
30.00
40.00
50.00
60.00
70.00
80.00
1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
The projection is a straight forward calculation that hinges on three variables: population being
served, annual average gallons (used) per customer per day (GPCD) and capacity factor (or ratio
of the peak day demand to the average daily demand). Each of these parameters has been
2
estimated with upper and lower boundaries using a triangular distribution. The capacity factor,
for example, is estimated to fall somewhere between 2.0 and 2.75 with an expected value of
2.35. Analytically, the capacity factor and the GPCD are the most significant variables and are
correlated in the modeling. The excess capacity is then determined through a Monte Carlo
simulation and the resulting excess capacity is shown in blue in the graphs below.
The estimated excess capacity has a mean value of 24 MGD with a lower bound estimate of 15
MGD (which represents the 10% level of the cumulative distribution).
The amount of treatment plant capacity used by Fort Collins includes the 5.82 MGD of capacity
owned by a single large customer and the capacity required to serve the West Fort Collins
Water District, but does not include the 2 MGD of capacity required for the sales agreement
with the Fort Collins – Loveland Water District. So, 2 of the 24 MGD are already assigned to a
water sale agreement. Any other water sale agreements the City may enter into in the future,
as well as any reserve capacity Fort Collins Utilities determines should be held, will need to be
accommodated within the remaining 22 MGD. Water sales agreements include a plant
investment fee (PIF) for the purchase of plant capacity. Water sharing agreements do not
include a PIF and, therefore, are on an as available basis and are not included here either.
3
It was not anticipated that the City’s water use (in GPCD) would be so much lower in 2012 than
it was prior to the last plant expansion in 1999. However, based on the City’s recent water use,
this 24 MGD of excess capacity is expected to exist through 2035. As such, any opportunity to
sell some of this excess capacity to other water districts or municipalities allows for some of the
capital investment in the water treatment facility to be recovered outside of the rate base. The
PIF associated with any such sale should be set aside just like any other PIF for future capital
investment. The incremental revenue from the water sales can be utilized for operational
costs, thereby reducing the fixed O&M costs being recovered from the rate base.
Attachment 4
Excerpt from Approved Water Board Minutes – June 20, 2013
Intergovernmental Agreements with Fort Collins Loveland Water District
Mr. Haukaas introduced the item and introduced Strategic Financial Planning Manager Lance
Smith. For the past year, staff has been negotiating with Fort Collins Loveland Water District
(FCLWD) to restructure the existing water sharing agreement and to enter into a new water sales
agreement.
There are two separate agreements:
Amending existing water sharing agreement “Intergovernmental Agreement for the
Delivery of Potable Water with Fort Collins Loveland Water District”
Entering into a new sales agreement “Intergovernmental Agreement for the Sale of
Potable Water with FCLWD”
Mr. Smith presented information on the Current Water Sharing Agreement:
In effect since 1999
Intended to allow FCLWD to lease transmission capacity from Fort Collins Utilities
(FCU) to convey water to FCLWD
The current daily limit is 9 mgd. The current annual limit is 1.25 billion gallons.
Any imbalance less than 2 percent of annual amount conveyed may be carried over from
one year to the next.
Mr. Smith presented a graph showing the monthly imbalance for the current water sharing
agreement from November 2010 through October 2012. The proposed daily limit would increase
to 12 mgd. The proposed annual limit would increase to 1.75 billion gallons.
Benefits of Amended Agreement
Eliminates imbalance being reduced in shoulder months thereby improving utilization of
water rights portfolio
Eliminates possibility of settlement below cost of treatment and without raw water
Provides compensation for use of excess treatment capacity
Reconfirms cooperation between water providers
Mr. Smith presented information on the proposed Water Sales Agreement. This is in addition to
the Water Sharing Agreement. The actual water demand will vary up to 5 million gallons per
day. The rate includes the total cost of treatment. FCU will receive raw water back the month
after treated water is delivered to FCLWD.
Benefits of Water Sales Agreement
Increases regional utilization of existing infrastructure
Allows for FCU to recover previous investment in excess treatment capacity
Provides consistent incremental revenue stream for capital improvements
Highlights from the discussion:
A board member asked for clarification on the daily limit of 5 mgd. Mr. Smith stated the
daily limit is the buying capacity at the plant. All water will flow through the Utilities
transmission system.
Attachment 4
A board member inquired about the stipulation on the proposed amendment for
carryover. Mr. Smith stated this is part of the proposed amendment on a monthly basis.
A board member asked about the water quality between the two plants. Water Production
Manager Lisa Voytko stated there is some chlorine residual in the water pushed back to
the Utilities plant. There are some differences in water quality.
A board asked for the number of individuals serviced by Fort Collins Utilities. Mr.
Haukaas stated Utilities services approximately 34,000 taps and approximately 80,000 to
90,000 individuals. This is between one-half and two-thirds of the total population of Fort
Collins.
Discussion on the motion: There was no discussion on the motion.
Vote on the motion: It passed unanimously.
Board Member Brown moved that the Water Board recommend to City Council to
approve the Water Enterprise Fund amending 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 as presented to the Fort Collins Water Board. Board Member
Garner seconded the motion.
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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
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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 25, 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
EXHIBIT A
Amended and Restated Water Delivery Agreement
September 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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) five (5) 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 25, 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 made 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 25, 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”) the date of signing by all parties, 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”);
IGA FOR WATER TREATMENT
September 25, 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
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
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,
2014upon approval of this agreement. 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 all deliveries during calendar year 2013,
after the effective date of this Agreement, the District will pay Fort Collins a
for water treatment and transmission service israte of $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.
IGA FOR WATER TREATMENT
September 25, 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
IGA FOR WATER TREATMENT
September 30, 2013
7
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 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) five (5) 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.
IGA FOR WATER TREATMENT
September 25, 2013
8
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
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
IGA FOR WATER TREATMENT
September 25, 2013
9
hereto recognize that there are legal constraints imposed upon them by the constitution,
statutes, and rules and regulations of the State of Colorado and of the United States, and
imposed upon them by their respective governing statutes, charters, ordinances, rules and
regulations, and that, subject to such 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
IGA FOR WATER TREATMENT
September 25, 2013
10
the negotiation or approval of this Agreement that constitutes a violation of Colorado
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.
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September 25, 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
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September 25, 2013
12
FORT COLLINS - LOVELAND
WATER DISTRICT ENTERPRISE,
An Enterprise of the District
ATTEST: By:
, President
___________________________
, Secretary