HomeMy WebLinkAbout1977 Ordinance No. 016•
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INTRODUCED AS A BILL BY COUNCILMAN WILLIAMS
BY AUTHORITY
ORDINANCE NO. 16 , SERIES OF 1977
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF ENGLE-
WOOD, COLORADO AND THE CITY OF THORNTON, COLORADO, CONCERNING
THE LEASING AND STORAGE OF ENGLEWOOD RANCH CREEK WATER.
WHEREAS, the City of Englewood, Colorado is part owner
and claimant of certain conditional water rights and facili-
ties in the Frazier River watershed known as the Enqlewood
Ranch Creek water riqhts and the Englewood Ranch Creek
collection system; and
WHEREAS, the City of Englewood, Colorado is entitled
to divert a part of the aforesaid water rights whenever water
is available and use of the water for beneficial purposes,
including irrigation, municipal, domestic, recreation and
fire purposes; and
WHEREAS, the aforesaid beneficial use is accomplished by
means of a Water Exchange between the Denver Water Board and
American Metals Climax, Inc.; and
WHEREAS, the City of Thornton, Colorado has large, un-
developed service areas, both within and outside as corporate
boundaries, said areas beinq in a continuing process of
development requiring commitments of additional water to
serve said areas; and
WHEREAS, the City of Thornton, Colorado has made a re-
quest for a long term lease from the City of Enqlewood, Colorado
for ~mounts of raw water deemed necessary to serve present
and anticipated service area and customers of the City of
Thornton, Colorado; and
WHEREAS, the City of Englewood, Colorado is the owner
and operator of a certain water storage and supply facility
known as McClellan Reserv·oir, for the capacity of approximately
5,940 acre feet which waEJ constructed to store water diverted
from the South Platte River and to store water diverted from
the Englewood Ranch Creek collection system into the South
Platte River system by means of a Water Exchange; and
WHEREAS, the City c•f Englewood, Colorado has a surplus of
water divertable under j_ts Ranch Creek water rights which it
cannot totally utilize :in the near or reasonably foreseeable
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future, and is willing to lease such unused water to the City
of Thornton, Colorado on a long term basis and also lease
operational space for such lease waters in McClellan Reservoir;
and
WHEREAS, the Englewood Ranch Creek system is operated by
the Denver Water Board for the benefit of the City of Engle-
wood, Colorado, American Metals Climax, Inc. and the Denver
Water Board subject to the provisions of the aforesaid Water
Exchange, and it is mutually understood that the Englewood
Ranch Creek system will continue to be operated in accordance
with those agreements; and
WHEREAS, the City of Englewood, Colorado and the City of
Thornton, Colorado will be jointly operating the McClellan
Reservoir system, it is desirous that certain operating cri-
teria be established in this agreement for such joint operation;
and
WHEREAS, the City of Englewood, Colorado enters into the
agreement, pursuant to the authority contained in Part 2,
Article I of Title 29 of the Colorado Revised Statutes, 1973,
together with the authority contained in Section 79, Part III
of the Englewood Home Rule Charter •
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL, CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1.
That the City of Englewood, Colorado and the City of
Thornton, Colorado shall enter into a contract captioned
"Water Lease and Management Agreement" whereby the City of
Englewood, Colorado shall lease a portion of its water rights
and certain storage capacity in McClellan Reservoir pursuant
to the terms of said Agreement, which is attached hereto,
consisting of sixteen (16) typewritten pages, together with
three (3) pages of Appendix "A" and is incorporated herein
by this reference. Said Agreement provides in pertinent part
as follows:
1. That the lease shall be for a term of twenty
(20) years unless sooner terminated as pro-
vided and unless so terminated or should the
City of Englewood, Colorado need said water,
the City of Thornton, Colorado shall have
the option to renew the lease for successive
terms of twenty (20) years upon giving notice
in writing to the City of Englewood, Colorado
of the City of Thornton's intention to exer-
cise the option for renewal not less than six
(6) months prior to the end of any twenty
(20) year term.
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2. For an annual consideration of Two Hundred
Thousand Dollars ($200,000.00), the City of
Englewood, Colorado agrees to lease to the
City of Thornton, Colorado an undivided fifty
percent (SOt) share of the operational capa-
city of McClellan Reservoir1 an undivided
fifty percent (SOt) share of the yield of water
produced by the exercise of the storage
right of McClellan Reservoir from the South
Platte River, and an undivided sixty percent
(60t) of the City of Englewood's share of
the yield of water produced .by the exercise
of the City of Englewood's Ranch Creek water
rights more particularly described in
Appendix "A" of the Agreement, included as
part of the Englewood Ranch Creek collection
system, and which may be stored in McClellan
Reservoir under the "Denver Exchange" Agree-
ment pursuant to the terms and provisions of
that Water Exchange Agreement of 1964 and its
modification in 1969.
3. It is understood that the total capacity of
McClellan Reservoir is approximately 5,940
acre feet •
4. It .is agreed that the annual consideration of
Two Hundred Thousand Dollars ($200,000.00)
shall be due and payable on or before April 1,
1978 and each and every year thereafter. This
consideration shall be reviewed every five (5)
years on the anniversary date of the Agreement
and shall be varied in relation to the then
existing United States money.
S. It is agreed that either party shall have the
right to reserve water in their undivided
share of the operational capacity from year
to year without redistribution.
6. It is agreed that should maintenance or repair
of McClellan Reservoir system be necr.sary,
that it shall be the full responsibility of the
City of Englewood, Colorado. The expense of
any modification to the facilities for the
convenience of either party, or both, shall
be shared by the parties so benefited, in
proportion to the entitlement of operational
reservoir capacity.
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7. It is aqreed that any modification or repair
to the reservoir facilities, including the
inlet and outlet works, shall be coordinated
between the parties to insure their ability
to make delivery of water from the facility
when required.
8. It is aqreed that should the reservoir not
be full in the McClellan Storaqe and Ranch
Creek collection system decrees not be in
priority, that the parties shall have the right
to store other waters for temporary detention
purposes or storaqe in the unused capacity of
McClellan Reservoir with no liability other
than to themselves.
9. It is aqreed that all waters which are stored
or detained in McClellan Reservoir shall be
diminished by their proportionate share of
evaporation calculated at a mutually aqreed
rate if necessary.
10. It is agreed that the City of Thornton, Colorado
shall pay to the City of Englewood, Colorado
the pumpinq cost for waters stored in McClellan
R~servoir which do not result from the Enqle-
wood Ranch Creek collection system "Denver
Exchanqe" yields. Should the Biqhline Canal
be used for fillinq McClellan Reservoir, the
parties will share the Canal losses and costs,
if any, in proportion to the amount of water
received by either party, including foreign
waters.
11. It is understood that any requests for release
of water from McClellan Reservoir will be made
to the Manaqer of McClellan Reservoir at least
twenty-four (24) hours in advance of the anti-
cipated release time. It is also understood
that should the reservoir be full, that the
water will automatically discharqe into the
Dead Clark Gulch below the reservoir throuqh
the emerqency spillway, and flow to the South
Platte River.
12. It is understood that once the water is re-
leased to the City of Thornton, ~olorado at
the outlet of McClellan Reservoir, the City
of Thornton, Colorado aqrees to assume all risks
and responsibilities for carriaqe of such water
to the delivery points of its distribution
system and further agrees to assume all trans-
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13.
14.
portation and carriaqe losses charqeable by
the State Water Administration officials.
It is aqreed that the City · of Thornton, Colorado
shall have the first riqht of refusal to the
City of Bnqlewood's share of the yield of water
from the Bnqlewood Ranch Creek water riqhts
brouqht into the South Platte River watershed .
and exchanqe under the "South Platte River
Exchanqe• pursuant to the provisions of the
Water Bxchanqe Aqreement of March, 1964 and
its modification of September, 1969 at a charqe
of Twenty-Five Dollars ($25.00) per acre foot.
The water shall be measured at the point of
delivery from either connection between the
Enqlewood Ranch Creek collection system, in the
mouth of the water system of the Denver Water
Board, or at the point of release where the
Denver Water Board's Jones Pass tunnel into
Clear Creek, as the case may be. Once said
water is delivered at the above-described
point, the City of Thornton, Colorado aqrees
to assume all risks and responsibilities for
the carriaqe of such water and the makinq of
any exchanqe for water to the South Platte
Ri~er. The City of Thornton, Colorado also
aqreea to assume all seepaqe evaporation losses
and fees for the carriaqe of such water in the
Moffit Water System facilities of the Denver
Water Board and charqeable by it and for the
carriaqe of such water in the public streams
of the State charqeable by the State Water
Administration officials.
It is understood this charqe of Twenty-Five
Dollars ($25.00) per acre for the water des-
cribed in the precedinq paraqraph shall be
reviewed every five (5) years on the anniversary
date of this Aqreement and shall be varied to
the relation to the then existinq value of
United States money as determined in the matter
provided in paraqraph 12 of the Aqreement.
15. Thia Aqreement involves the use and the fur-
nishinq of raw water outside the territorial
limits of the City of Enqlewood, Colorado. It
ia understood and aqreed that the City of Bnqle-
wood, Colorado may have to interrupt the delivery
of raw water produced from the exercise of
ita Ranch Creek water riqhta to the City of
Thornton, Colorado, and resume delivery to the
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16.
the City of Englewood, Colorado to provide
adequately for use inside the territorial
limits of the City of Englewood, Colorado.
The right to interrupt such delivery is a
matter to be determined by the City of Engle-
wood, Colorado in the exercise of its rea-
sonable discretion from time to time as
occasion may require. This determination by
the City of Englewood, Colorado shall be
based upon the standards and limitations
aet forth in paraqraph 24 of the Agreement
attached hereto.
The City of Englewood, Colorado agrees that
the water yield available to the City of
Thornton, Colorado under this lease shall
not be curtailed or called back by the City
of Englewood, Colorado to serve future users
other than the City of Thornton, Colorado
outside the t~rritorial limits of the City of
Englewood, Colorado.
17. The City of Thornton, Colorado agrees to pre-
vent all unnecessary or unreasonable waste of
water from its distribution facilities and
a1i connections the~eto •
18. It is understood that the water supply avail-
able from the exercise of Enqlewood Ranch Creek
water riqhts is dependent upon sources from
which the supply is variable in quantity and
beyond the control of the City of Enqlewood,
Colorado. No liability shall be incurred under
this Agreement on account of any failure to
accurately anticipate the availability of
water supply or because of failure of water
supply due to inadequate runoff or other
occurrence beyond the reasonable control of
the City of Englewood, Colorado. Also, no
liability shall be incurred under the Agree-
ment on account of any failure to furnish
water or operational storage capacity in
McClellan Reservoir in the event McClellan
Reservoir, or any part of the Moffit Water
System of the Denver Water Board, should
become inoperable because of flood or other
occurrence beyond the control of the City
of Englewood, Colorado.
19. Each party acknowledges the contents of
paragraph 14 of the modification of the Water
Exchange Agreement of 1969 as fully set out
in the Agreement attached hereto.
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20. It is agreed that this Agreement shall be
submitted to the Denver Water Board for its
consideration and action in compliance with
the said provisions of paragraph 14 of the
modif ic~tion of the Water Exchange Agreement
of 1969. The City of Thornton, Colorado,
by submitting this Agreement to the Denver
Water Board, hereby makes application to the
Denver Water Board for raw water in the same
amounts, for the equivalent operational
storage capacity, for the same consideration
and for the same period of time as provided
in this Agreement. The City of Thornton,
Colorado requests the Denver Water Board to
accept or decline this application within
thirty (JO) days from the date that the Agree-
ment is transmitted to the Board.
21. It is mutually agreed that the City of Engle-
wood, Colorado reserves the right to sell and
dispose of all or part of the water rights
which produce the water leased by this Agree-
ment and all or part of the facilities used
for the diversion, collection and storage of
these water rights known as Englewood Ranch
Creek collection system and McClellan Reser-
voir, pursuant to the authority granted by
Article 121, Article XIII of the Englewood
Home Rule Charter. This reservation may be
exercised by the City of Englewood, Colorado
at any time during the duration of this lease
or any extension thereof. Should the City of
Englewood, Colorado at any time decide to
dispose of all or part of its Englewood Ranch
Creek water rights and its part of the
Englewood Ranch Creek collection system,
the City of Thornton, Colorado shall have the
first right of refusal to acquire the City of
Englewood's part of the Englewood Ranch Creek
water rights and its part of the Englewood
Ranch Creek collection system, by the payment
to the City of Englewood, Colorado of whatever
amount is offered to the City of Englewood,
Colorado as payment therefore. It is under-
stood that at any given time, an offer to
the City of Englewood, Colorado to acquire the
aforesaid water rights and part of the
collection system could necessitate the payment
by the City of Thornton, Colorado to the
City of Englewood, Colorado of a substantial
amount of money, and, therefore, the City of
Englewood, Colorado agrees that pursuant to
this first right of refusal, the City of
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Thornton, Colorado shall have six (6) months
from the date of approval of sale by the
City of Englewood, Colorado to present to its
citizens a bond issue to be voted upon by
them, if such vote be needed and required,
in order to provide money to acquire all or
part of its Englewood Ranch Creek water rights
and its part of Englewood Ranch Creek collection
system.
22. In the event the City of Thornton, Colorado
shall fail to keep or perform any agreement
on its part to be kept performed according
to the terms of the attached Agreement, the
City of Englewood, Colorado gives the City
of Thornton, Colorado notice specifying the
particular default or defaults, the City of
Thornton, Colorado shall have such time as
provided in said notice, which period of time
shall in no event be less than ninety (90)
days in which to correct such default or de-
faults. Failure to correct such default
within the specified time period may result
in the termination of this Agreement by the
City of Englewood, Colorado upon giving the
City of Thornton, Colorado sixty (60) days
written notice thereof.
23. No assignment by the City of T:t.-.ornton,
Colorado of its rights under this Agreement
shall be binding on the City of Englewood,
Colorado unless it shall have assented to
such an assignment with the same formality
of employ ·in the execution of this Agreement.
24 . All water furnished hereunder is on a lease-
hold basis for the use of the City of
Thornton, Colorado and its customers for
all of the various purposes for which the
City of Englewood, Colorado has been de-
creed the right to appropriate water and
except as otherwise specifically provided
in Section 34 of the attached Agreement,
all property rights to the water to be fur-
nished by the City of Englewood, Colorado
are reserved in Englewood, Colorado.
2 5. The parties hereto agree that this Agree-
ment will continue until terminated by
mutual agreement, notwithstanding the
possible curtailment of service as
specifically provided in said Agreement.
Fa ilure of either party to exercise any
right hereunder shall not be deemed a
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waiver of such party's right and shall not
affect the right of such party to exercise
at some future time said riqht or riqhts
or any other riqht it may have hereunder.
27. Because of the severe drought presently
occurring, the City of Englewood, Colorado,
on an emergency basis, agrees to lease to
the City of Thornton, Colorado water avail-
able from its Ranch Creek collection system
or McClellan Reservoir during 1977, if
needed and when requested by the City of
Thornton, Colorado, at a price of One
Hundred Twenty-Five Dollars ($125.00) per
acre foot, measured at the outlet of
McClellan Reservoir, to be billed and
promptly paid by the City of Thornton,
Colorado. ·The City of Thornton, Colorado
shall so notify the City of Enqlewood,
Colorado within thirty (30) days from the
effective date of this Aqreement for the
amount it needs durinq 1977.
Section 2.
The City Council of the City of Enqlewood, Colorado hereby
authorizes the Mayor of the City of Enqlewood, Colorado to sub-
scribe his name to said Aqreement for and on behalf of the City
Council and the City of Enqlewood, Colorado, and the Director
of Finance ex officio City Clerk-Treasurer.
Section 3.
Inasmuch as severe drought conditions exist for residents
of the City of Thornton, Colorado and the City of Enqlewood,
Colorado has surplus raw water available for lease and re-
quires the revenue that can be produced therefrom, City Council
finds and determines that an emergency exists and that the
passaqe of the within Ordinance is necessary for immediate
preservation of public property, health and safety and that
the Ordinance shall become effective upon publication follow-
ing final passage.
Introduced, read in full and passed on first reading on
the 5th day of July, 1977.
Published as Bill for an Ordinance on the 13th day of
July, 1977.
Read by title and passed on final reading on the 1st
day of Au g ust, 1977 •
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Published by title as Ordinance No. 16 , Series of 1977, --on the 10th day of August, l:::z..lo"I~ .....
ATTEST:
ex ~~~-Treasurer
I, William o. James, do hereby certify that the above
and foreqoinq is a true, accurate and complete copy of the
Ordinance, passed on final readinq and published by title
as Ordinance No. 16 , Series of 1977.
~~ ex OffiCOClkrk-Treasurer
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