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Home My WebLink About2018 Ordinance No. 009ORDINANCE NO. 9 SERIES OF 2018 BY AUTHORITY COUNCIL BILL NO. 14 INTRODUCED BY COUNCIL MEMBER BARRENTINE AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT FOR JOINT SERVICES BETWEEN THE CITY AND COUNTY OF DENVER BY AND THROUGH ITS BOARD OF WATER COMMISSIONERS AND THE CITY OF ENGLEWOOD WHEREAS, Denver Water and the City of Englewood are opposers to water applications filed by Timbro Ranch Cattle Company, LLC, consolidated Case Nos. 20 I 3CW3 I 44 and 20 I 4CW3 I 34; WHEREAS, The City of Englewood has contracted with Martin and Wood to provide expert engineering analysis and testimony in the two applications; WHEREAS, Denver Water will reimburse the City of Englewood half of the costs for Martin and Woods engineering analysis, up to $ I 00,000 dollars, and; WHEREAS, the passage of this Ordinance will authorize the City of Englewood to invoice Denver Water for one-half of the costs from January 29, 2018 to the effective date of this Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section I. The City Council of the City of Englewood, Colorado, hereby authorizes an Intergovernmental Agreement for Joint Services with the City and County of Denver by and through its Board of Water Commissioners, for an amount up to $ I 00,000 dollars, for one-half of the engineering services of Martin and Wood. Section 2. The Mayor and the City Clerk are hereby authorized to sign and attest said Intergovernmental Agreement, on behalf of the City of Englewood. Introduced, read in full, and passed on first reading on the 7th day of May, 2018 . Published by Title as a Bill for an Ordinance in the City's official newspaper on the 10th day of May, 2018. Published as a Bill for an Ordinance on the City's official website beginning on 9th day of May 2018. Read by Title and passed on final reading on the 21 s' day of May, 2018. Published by Title in the City's official newspaper as Ordinance No. 9, Series of 2017, on the 24 th day of May, 2018. •l • Published by title on the City's official website beginning on the 23 rd day of May, 2018 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Rita Russell, Mayor Pto Tern ATTEST: I, Stephanie Carlile, City Clerk of the City of Englewood, C olorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. 9, Series of 2018. -2- INTER-GOVERNMENTAL AGREEMENT FOR JOINT SERVICES BETWEEN THE CITY AND COUNTY OF DENVER BY AND THROUGH ITS BOARD OF WATER COMMISSIONERS AND THE CITY OF ENGLEWOOD This Agreement, for the sharing of costs incurred for the joint services of Martin and Wood Water Consuhants, Inc. ("Martin and Wood"), is entered into by and between the CITY AND COUNTY OF DENVER, a home rule municipal corporation of the State of Colorado, acting by and through its BOARD OF WATER COMMISSIONERS ("Denver Water") and the CITY OF ENGLEWOOD ("Englewood"), a home rule municipality. Each party to this Agreement may be referred to individually as "Party" and collectively as "Parties." I. RECITALS 1. Denver Water and Englewood are opposers in mauers involving the water applications filed by Timbre Ranch Cattle Company, LLC ("Timbre") in consolidated Case Nos. 20l3CW3l44 and 2014CW3l34, Water Division I. 2. Englewood has contracted with Martin and Wood 10 provide engineering services for water matters involving applications filed by Timbre Ranch Cattle Company, LLC ("Timbre") in consolidated Case Nos. 2013CW3144 and 2014CW3134. 3. The purpose of this Agreement is to provide a means by which Denver Water reimburses Englewood for one-half of the cost of Martin and Wood's joint services provided in consolidated Case Nos. 20l3CW3144 and 20l4CW3134 on or after January 29, 2018. 4. This intergovernmental agreement is authorized by Article XIV, Section 18 of the Colorado Constitution and Colo. Rev. Statute § 29-1-203. II. AGREEMENT NOW THEREFORE, in consideration of the foregoing Recitals, the mutual covenants herein contained, and other good llJld valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Denver Water and Englewood agree as follows: I. Cost Sharing: Englewood will bill Denver Water for Martin and Wood's services in Case Nos. 13CW3144 and 2014CW3134 and Denver Water shall reimburse Englewood for one-half the costs of Martin and Wood's services billed to Englewood. 2. Amount Not to Exceed: The total amount for which Denver Water is obligated to reimburse Englewood under this Agreement shall not exceed One Hundred Thousand Dollars ($100,000.00), unless modified by the mutual written agreement of the Parties. 3. Payment: Upon receipt of an invoice for services provided by Martin and Wood that are subject to this Agreement, Englewood shall deliver the invoice to Denver Water within Page 1 of 6 Inter-Governmental Agreement No. ______ City of Englewood thirty (30) days. The invoice shall be accompanied by a bill in arrears and a copy of Martin and Wood's bill. Within thirty (30) days of receipt of the invoice and bill, Denver Water shall pay Englewood one-half Martin and Wood's invoiced amount. 4. Past Work: Denver Water agrees to reimburse Englewood for one-half of the costs incurred by Englewood in using Martin and Wood between January 29, 2018 and the effective date of this Agreement ( .. Past Work"). Denver Waler agrees to reimburse Englewood for one-half the cost of Past Work within 60 days after this Agreement becomes effective, provided that Englewood delivers the Martin & Wood invoice(s) for Past Work. 5. Term of the Agreement: The term of this Agreement begins on the effective date of this Agreement as identified in paragraph l I and ends after Englewood has been reimbursed by Denver Water following Martin and Wood's final invoice for joint services in Case Nos. J 3CW3 I 44 and 2014CW3 J 34. 6. Liabjlity: Each Party is responsible for payment of its respective share of the Marlin and Wood services as provided by this Agreement, subject to the terms of this Agreement. A Party that foils to pay its respective share as required under this Agreement shall be liable to the other Party for nonpayment. 7. Breach: A Party's failure to pay its share of such costs as required herein shall constitute a breach of this Agreement. 8. Termination: This Agreement may be temporarily suspended or terminated by the Parties hereto if any of the following conditions occur as outlined in subparagraph a)-c) below. Following termination of this Agreement, each Party shall be responsible to pay its respective share of the costs incurred to date for Martin and Wood's services, to the extent such costs are incurred prior to the occurrence of any of the conditions described below, and subject to the terms of this Agreement. a) A Party refuses or cannot pay its respective share as agreed to under this Agreement. b) Englewood terminates its consulting contract with Martin and Wood. c) A Party provides fourteen ( 14) days written notice to the other Party of its intent to terminate this Agreement. 9 . Notices: Any notice required or permitted to be given hereunder shall be in writing and shall be deemed given and effective when delivered personally to the other Party, or delivered by fax, express mail, federal express or like service, or on the third mail delivery date after it is deposited in the United States mail, postage prepaid addressed to the Parties as follows: a) Denver Water designates its General Counsel, whose address and telephone number for notices and communication are: Page 2 of 6 Inter-Governmental Agreement No. ______ City of Englewood General Counsel c/o James Wittler Denver Water 1600 West I 2•h A venue Denver, Colorado 80254 Phone: (303) 628-6460 Fax: (303) 628-6478 james.wiUler@denverwater.org b) Englewood designates its Special Water Counsel, whose address and telephone number for notices and communication are: Peter D. Nichols Berg Hill Greenleaf Ruscitti LLP Attn: Tia M. Gerung 1712 Pearl Street Boulder, CO 80302 Phone: (303) 402-1600 Fax: (303) 402-160 I E-mail: pdn@bhgrlaw.com JO. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, and ull of which, taken together, shall constitute but one and lhe same instrument. 11. Effective Date: This Agreement shall become effective on the date it is fully signed by Denver Water. 12. Venue: This Agreement shall be deemed performable in the City and County of Denver, notwithstanding that the Parties may find it necessary to talce action outside the City and County of Denver. The forum for resolution of any dispute resulting in litigation shall be the District Court for Arapahoe County. This Agreement shall be interpreted and governed in accordance with Colorado law. 13. Severability: If any provision of this Agreement is determined by a court having jurisdiction to be unenforceable to any extent, the rest of that provision and the rest of this Agreement will remain enforceable to the fullest extent permitted by law. 14. Charter of the City and County of Denver: This Agreement is made under and conformable to Article X of lhe Charter of the City and County of Denver, which controls the operation of the Denver Municipal Water System. The Charter provisions are incorporated by this reference and supersede any apparently conflicting provisions otherwise contained in this Agreement. Page3 of6 Inter-Governmental Agreement No. ______ City of Englewood 15. Colorado Governmental Immunity Act. Notwithstanding any other provision of this Agreement, the Denver Water and Englewood are relying upon and have not waived the monetary limitations of, and all other rights, immunities and protections provided by, the Colorado Governmental Immunity Act, C.R.S §§ 24-10-JOI, ~ .• as it may be amended from time to time, or any other limitations, rights, immunities und protections otheIWise available to the Denver Water and Englewood, its officers and employees. IN WITNESS WHEREOF, the Parties have duly executed this Agreement upon the terms, conditions, and provisions stated above. [Signature Pages Follow] Page 4 of 6 Inter-Governmental Agreement No. ______ City of Englewood APPROVED: By: Chief External Affairs Officer APPROVED AS TO FORM: By: Office of General Counsel CITY AND COUNTY OF DENVER, acting by and through its BOARD OF WATER COMMISSIONERS By: CEO/Manager DATE: __________ _ REGJSTERED AND COUNTERSIGNED: CITY AND COUNTY OF DENVER By: Page 5 of 6 Timothy M. O'Brien, CPA Auditor Inter-Governmental Agreement No. ____ • City of Englewood ITY OF ENGLEWOOD DATE:~ ; , Mayor Page6of6 Inter-Governmental Agreement No. _____ City of Englewood TO: FROM: DATE: SUBJECT: Water and Sewer Board Tom Brennan -ots April 3, 2018 Denver Water-Englewood Inter-Governmental Agreement In an effort to reduce water rights defense costs staff request Water and Sewer Board recommend Council approval by Ordinance for an Inter-Governmental Agreement (IGA) for the sharing of costs Incurred for the joint services of Martin and Wood Consultants, Inc. between the City of Englewood and Denver Water for the Timbro Ranch Cattle Company case. The Timbro Ranch Company flied an application In water court seeking to acquire tributary groundwater rights and an augmentation plan for wells to be completed In the Upper Pierre aquifer. Englewood entered this case because there have been several attempts to acquire nontrlbutary status for this aquifer that lacked proper data and to ensure that the augmentation does not Impact the South Platte River. The Upper Pierre aquifer is a tributary of the S Platte River with Its water flowing into the river. These proposed wells would deplete the water entering the river. To protect Englewood's senior S Platte River water rights a sound augmentation plan Is essential. Augmentation is a substitute water supply plan that requires adequate replacement water to cover the depletions of water ensuring Englewood's ability to exercise its senior rights. In February, Berg Hill, Englewood's water counsel, conferred with counsel for Denver Water, Tom Brennan, and Englewood's water engineer, regarding joint representation of Denver Water and Englewood by Martin and Wood Consultants with respect to opinion/report regarding hydrogeologlcal analysis. This IGA will save the City half of the engineering costs In this case, which are likely to run into the tens of thousands. . .. 1000 Englewood Parkway • Englewood, Colorado 80110 • 303-762-2635 • www.englewoodgov.org