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Home My WebLink About1998 Ordinance No. 002""· • ORDINANCE NO . A SERIES OF 1997/1998 BY AUTHORITY /Cb';i1 ~1101 <1 COUNCIL BILL NO. 103 INTRODUCED BY COUNCIL MEMBER WAGGONER AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT FOR A TEMPORARY AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND CENTENNIAL WATER AND SANITATION DISTRICT TO PROVIDE ADDITIONAL WATER TO CENTENNIAL UNTIL A PERMANENT AGREEMENT IS APPROVED. WHEREAS, on November 3, 1980 Englewood and Mission Viejo Company entered into an agreement, known as Water Supply Agreement, effective January 1, 1981, whereby Englewood would supply water to an area owned by Mission Viejo Company known as Highlands Ranch; and WHEREAS, Mission Veijo Company duly assigned its interest in the Water Supply Agreement to Centennial, successor to Mission Viejo Company; and WHEREAS, Englewood and Centennial agree that certain amendments would improve the existing Water Supply Agreement and wish to enter into a Temporary Agreement at this time while they work together to amend or replace the original Water Supply Agreement; and WHEREAS, this agreement provides for an increase in the amount paid by Centennial for the water they currently purchase and provides for purchase of temporary excess water by Centennial. NOW, THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD , AS FOLLOWS: Section 1. The attached Intergovernmental Agreement entitled "Englewood-- Centennial Temporary Agreement", attached hereto as "Exhibit A," between the City of Englewood, Colorado, and Centennial Water and Sanitation District is approved. Section 2. The Mayor is authorized to execute and the City Clerk to attest and seal the Intergovernmental Agreement entitled "Englewood--Centennial Temporary Agreement" for and on behalf of the City of Englewood , Colorado. Introduced, read in full, and passed on first reading on the 15th day of December, 1997 . -1- Published as a Bill for an Ordinance on the 19th day of December 1997. Read by title and passed on final reading on the 5th day of January, 1998. Published by title as Ordinance No. ~.Series of 1997/1998, on the 9th day of January, 1998 . I, Loucrishia A. Ellis , City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by title as Ordinance No6_, Series of 1 97/1998. -2- • • ENGL.EWOOD--CENTENNIAL TEMPORARY AGREEMENT l. INTRODUCTION; PARTIES AND PURPOSES. This Temporary Agreement is entered into and becomes effective -on this day of , 1997, between the CITY OF ENGLl:.""'WOOD, a Colorado municipal corporation ("Englewood") , and CENT'""~L~ WATER AND SANITATION DISTRICT, a Colorado quasi-municipal corporation ("Centennial") . Englewood and Centennial are sometimes ref erred to collectively herein as "the parties". On the third day of November, 1980, Englewood and Mission Viejo Company entered into an agreement, which became effective January 1, 1981, entitled "Water Supply Agreement" whereby, amcng other things , Englewood was to supply water to an area owned by Mission Viejo Company known as Highlands Ranch. Mission Viejo Company duly assigned its interest in the Water Supply Agreement to Centennial, which is the successor to Mission Viejo Company under the Water Supply Agreement and is bound by all the terms thereof. Englewood and Centennial agree that the value of the Water Supply Agreement could be enhanced by certain amendments or clarifications or even by replacement with a new agreement. (No attempt is made herein to enumerate, describe or resolve the ways in which the Water Supply Agreement could be so amended, clarified, or replaced.) The parties wish to enter into this Temporary Agreement so as to establish a basis for cooperative actions between the two of them, while they work together in an attempt to so amend, clarify, or replace the Water Supply Agreement and to resolve other water supply issues which are generally outlined below in Section 2. 2 • NEGOTIATION SCHEDULE. The parties agree to enter into and conduct good faith negotiations to attempt to reach an agreement concerning the following issues on the following schedule: Item /Ji._~eements Update, review, prioritization, and discussion of negotiation issues and schedule City Ditch (including City Ditch permanence and City Ditch Pumo Station improvements ) Schedule December 1997 1st Quar~er 1998 H I B I T A Nevada Ditch (including revision of the Nevada Ditch Holding Company bylaws and lease of Englewocd's Nevada Ditch capacity) Water deliveries (amount, price, location, and timing under Water Supply Agreement) CWSD McLellan pump station planning, design and construction coordination McLellan and South Platte Lake storage under Water Supply Agreement and 8 /3/77 Water Lease and Management Agreement ) Final agreement (incorporates above items and other remaining issues in one or more new or revised agreements ) 2nd Quar:er 1998 2nd Half 1998 During 1998 1st Quarcer 1999 2nd Quarter 1999 Other issues may presently exist or may arise during the course of negotiations. The parties' goal is to resolve all issues (not just Water Supply Agreement issues) pending during the course of negotiations. 3. MONTHLY SCBEDULE WATER DELIVERIES AND PRICE. During the term of this Temporary Agreement, the following provisions apply with respect to the water known in the Water Supply Agreement as "Monthly Schedule Water". Englewood shall continue to deliver Monthly Schedule Water in accordance with paragraphs 2.2 and 5.l of the Water Supply Agreement. Payments for Monthly Schedule Water shall continue according to the schedule provided for in the Water Supply Agreement. The price for deliveries of Monthly Schedule Water for the duration of this Temporary Agreement shall be $3 72 . O O per acre-foot beginning on the first day of January, 1998 if this agreement becomes effective. If for any reason Englewood fails to deliver any part of the Monthly Schedule Water in the amount and at the time and location required by the Water Supply Agreement, Centennial shall not pay for the amount which is not so delivered; but there shall be no reduction in the price paid for any Monthly Schedule Water which is properly delivered. Englewocd shall use good faith efforts to insure that Monthly Schedule Water 2 • • deliveries are uninterrupted. Englewood shall notify Centennial as soon as possib l e of any problems in making such deliveries. 4. THE 15.15% OF McLELLAN STORAGE. During the term of this Temporary Agreement, Centennial shall be entitled to the exclusive use of 15.15% of the storage capacity in Mc~ellan Reservoir referred to in Paragraph 2.4 of the Water Supply Agreement; provided, howeve.:?:", Englewood shall have the right to use any unoccupied portion of said 15.15%. After six months from the signing of this agreement, any such portion of said 15. 15% used by Englewood shall be deemed "spilled" if Centennial is subsecruentl v able to fill such port:ion. The water in storage in said lS.15% of the McLellan Reser.roir capacity as of the date this agreement becomes effective shall be deemed to be held in the following ownership pe.:?:"centage: 100% by Englewood. 5. ENGLEWOOD'S TEMPORARY EXCESS WATER; SUSPENSION OF UNSCHEDULED WATSR, ADDITIONAL SURPLUS WATER AND EXTRA WATSR C..~TEGORIES. During the term of this Temporary Agreement , the parties' rights and obligations with respect to Unscheduled Water, Additional Surplus Water , and Ext:ra Water under the Water Supply Agreement are suspended and replaced by the following te:?:"ms and condi t ions with respect to delivering water known as Englewood's Temporary Excess Water to Centennial. Englewood's "Temporary Excess Water" means water which Englewood does not need to supply its own municipal customers or to provide the Monthly Schedule Water or other contractual water deli very obligations. Some of the Temporary Excess Water is available by delivery to McLellan Reservoir via the Highline Canal. Some of the Temporary Excess Water is available by diversion into City Ditch at Chatfield Reservoir, and pumping into McLellan Reservoir. Some of the Temporary Excess Water is or will be available by pumping or exchange from the McBroom Ditch terminus to Englewood's Union Avenue forebay, from there by pumping into City Ditch, for exchange in the ditch upstream to the McLellan Reservoir pump station and some of the Temporary Excess Water is available for diversion at Union Avenue, pumping to Ci ty Ditch, and the foregoing exchance in the ditch upstream to the McLellan Reservoir pump st~tion. Some of the Temporarf Excess Water is decreed for direct flow; some for direct flow or storage; and some must be augmented, pursuant to a plan fer augmentation. 3 Centennial will pay all pumping costs for any pumping necessary to deliver to City Ditch Temporarz Excess Water derived from sources at or near Union Avenue (including Bear Creek water). Englewood will pay all other pumping costs. Pumping costs will be reasonably calculated by Englewood, subject to audit and review by Centennial, will be billed monthly, and will be paid in full 3 o days from date of -Englewood invoice. If there is a dispute over pumping costs, it will be resolved by arbitration as hereafter provided; but Centennial shall pay in full, 30 days from invoice date, regardless of any dispute. Any amount refunded to Centennial will bear interest at 6% per annum from date paid until date refunded. If the Temporary Excess Water is augmented by Englewood, then Centennial shall pay for the full amount of water delivered. If the Temporary Excess Water is augmented by Centennial, then Centennial shall pay only for the amount of Temporary Excess Water delivered which exceeds the augmentation water provided by Centennial. In addition to any applicable pumping costs, Centennial shall pay $85 per acre-foot of Temporary Excess Water delivered (subject to the adjustment for augmentation by Centennial which is above provided for). Englewood will bill monthly, and will be paid in full 30 days frcm date of invoice. Centennial is not obligated to take any Temporary Excess Water, and Englewood makes no warranty that Temporary Excess Water will be available when requested by Centennial. Centennial shall have exclusive first rights to use any available Temporary Excess Water. The parties will work out a cooperative procedure whereby Centennial notifies Englewood as far in advance as is readily practical, of how much Temporary Excess Water Centennial desires to take, in what quantities, and at what flow rates; in turn, Englewood shall notify Centennial as far in advance as is readily practical of how much Temporary Excess Water Englewood has available for delivery to Centennial, in what quantities, and at what flow rates. Englewood will have the first right to provide any necessary augmentation water; if Englewood declines to provide augmentation water, then Centennial may provide same. Englewood will work out a cooperative delivery procedure with Centennial. When Centennial requests water, Englewood will endeavor to advise promptly as to whether it anticipates the requested quantity and flow rate will be available, subject, of course, to the 4 • • vagaries of ri 1rer c::ncii t.:..cn.s , calls , weatb.er, e_~cil.ange capacity, and other sue!:. variables. available 5. NO A'l":"EMF~ CONDEMNATION OP ~OD' S ?A.<:n.ITT.:!S • C~tennial agrees tb.at i.:: C.u:::..::.g t.he te~ of this Tern;:orarz Ac=eement Ce.!J:cenni.al at:::emct.s t:i c::nC.emn any proper-::y of -Ellglewocd, i.ncluciing witb.ou~ limitation (1 ) cont::ac~ rights, (2 ) easeme..'1.tS or right:s-of-way, and (3 ) pr::per-=y in the name of, or rights to use ca.r=-iage capaci~y of, any mut:ual ditch c::mpany i.n which Englewocd owns shares; which proper-=y sought: to be condemned is or may be used for t~e c:a.r:::-iage or storage of water bv EnclewooC., tb.en Sn.clewccd, at its elec~.:.cn, mav te~b.ate ei t.her er both the Water Sunol v Acrreement and t~e "Water Lease and Management Ag::-eemem: ,; , ·originally entered im:o be>::-:'leen Encrlewood and t~e Ci::-r cf Tb.or:itcn, dated August 3 , 1977 (t:~e interests cf the cicy cf Thor:itcn hav~g been c::n"'reyed to Centennial cy mesne c::r..veyances ) 7 • NO E:F!"EC'!.' ON WATER S1JPPLY A~. This Temporarz Agreement s~a l l net amend, ccnst::"'~e er te.rmb.ate the Water Suppl y Ag::-eement . By entering i~to this Terrrccrarr Acrreement, nei t:her ca=::-" wai "'res anv rich ts, or is released· f=;rn any o.i:lligacicns-, wi:i.ic=. L: may· have un.der the Water Sucnlv .l\creement. Nei::.her car:-r snall contend t hat t.:ie ot.:ier is--cuiltv of lac.hes er wa.::.~rer ·; '.""! en£orci..'1.c its richts under the-Wate~ Supply Agreemenc because cf any ~c~ion whic= is taken or not ta.ken wit:.i re.s;:ec~ to the Water Supply Ac::-eement while th.is Terrrccr:-=-r Ac=eemenc is i.n e::=ec~. Failure to delivez:-Monthly S-c~edui.e W~ter C.uring the Tem;:orarz Agreement shall not be deemed t:o be such a failure under the Water Supply Agreement. T~e period during which th.is Temporary Agreement is in. e££ec-= shall not be counted in deter:nini!J.g whether any stat:ite cf limitations applies ta any breac!i or asserted breach cf the Water Supply Agreement. Neithez:-party shall cornme:r:.ce any ac~icn in any court concerning t.he Water Sun'Cl v ACl. eeme.nt whi 1 e this Temporary- Agreemenc is i.n e££ec-=. -Nelt:.h~r par=y shall take any ac~ian to te:rmi.r:ate or enforce the Water Sum::lv Acreement while this Temporar1 Agreement is i.n ef:Eec~. --· - 8. TERM AND ~'!'ION OP 'rnIS ~ORARY A~. This '!'em;:crary Agreement shall bec::rne ef:Eec-=i ve on t.he ____ l._s ....... t_ day cf ,Tan n arr , 19'.?!1, and shall automatically terminate at: c~e end of t:.:ie 31st day of December , 2000 , unless sccner t:er:ninaced as pr::vided nerea£-cer. Either E=a=-:y may ter:ninate this Tem;:orar.{ .. Agreement on the date wnicn is 90 days after the day when a written notice of termination is delivered to the other party. Upon ter:nination of this Temporary Agreement, the parties shall re~ur:i to the Water Supply Agreement, consistent with the understanding contained in the preceding paragraph, unless the parties have entered into an amended water supply agreement or have replaced it with a new one. 9. ARBITRATION. Except as provided below , any and all disputes arising under or related to this Agreement which cannot be resolved through negotiations between the par'l:ies shall be submitted to binding arbitration. If the parcies fail to reach a settlement of their dispute within fifteen (15 ) days after the earliest date upon which one of the par'l:ies notified the other (s ) of its des i re to attempt to reso l ve the dispute, then the dispute shall be promptly submiti::ed to arbitration by a single arbitrator through the Judicial Arbiter Group , any successor of the Judicia l Arbitey Group , or any similar arbitration provide:!:" who can provide a formey judge to conduct such arbitration if JAG is no longer in exisi::ence ("JAG") . The arbiter shall be se l ected by JAG on the basis, if possible, of his or her expertise in the subject matteY (s ) of the dispute. The decision of the arbitrator shall be final, nonappealable and binding upon the par'l:ies, and it ma y be entered in any court of competent jurisdic~ion. The arbitration shall take place in the offices of the JAG. The arbitrator shall be bound bv the laws of the State of Colorado aoplicable to the issues -involved in the arbitration and alf-Colorado rules relating to the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine. All discovery shall be completed in accordance with the time limitations prescribed in the Colorado rules of civil procedure , unless otherwise agreed by the parties or ordered by the arbit:::-ator on the basis of strict necessity adequately demonst:::-ated by the party requesting an extension of time. The arbitrator shall have the power to grant equitable relief where applicable under Colorado law, and shall be entitled to make an award of punitive damages when applicable under Colorado law. The arbitrator shall issue a written opinion setting forth his or her decision and the reasons therefor within thirty (30 ) days after the arbitration proceeding is concluded. The obligation of the parties to submit any dispute arising under or related to this Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this Agreement . Notwithstanding t h e foregoing , either party may seek and obtain an injunc'l:ion or otheY appropriate relief from 6 • ., • • a court to preserve or protect trademarks, t=a.denames, copyrights, patents, trade secrets or other intellectual property or proprietary information or to preserve the status quo with respect to any matter pending conclusion of the arbitration proceeding, but no such application to a court shall in any way be permitted to stay or otherwise impede the progress of the arbitration proceeding. In the event of any arbitration or litigation being filed or instituted between the parties concerning this Agreement, the prevailing party will be entitled to receive from the other party or parties its attorneys' fees, witness fees, costs and expenses, court costs and other reasonable expenses, whether or not such controversy, claim or action is prosecuted to judgment or other form of relief. CITY OF ENGLEWOOD ATTEST: CENTENNIAL WATER AND SANITATION DISTRICT ATTEST: 7 . ,. • .. COUNCIL COMMUNICATION Date Agenda Item Subject Centennial Water Supply December 15, 1997 10 a i Temporary Agreement Initiated By Staff Source Utilities Department Stewart H. Fonda, Director of Utilities COUNCIL GOAL AND PREVIOUS COUNCIL ACTION Prior Water Supply Agreement with Mission Viejo dated November 3, 1980. RECOMMENDED ACTION The Englewood Water Board , at their November 18, 1997 meeting, recommended Council approval of the Englewood-Centennial Temporary Agreement. BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED Englewood and Centennial Water and Sanitation District agree that the existing Water Supply Agreement could be improved by certain amendments to clarify the current agreement. This proposed agreement would allow Englewood. and Centennial to negotiate a new agreement and establish a cooperative basis to amend or replace the existing agreement. A specific negotiation schedule is outlined in the agreement. This temporary agreement shall not amend or terminate the existing Water Supply Agreement. This agreement would be effective retroactively from final approval date so that the effective date would be January 1, 1997. The price for deliveries of Monthly Schedule Water in the agreement would be increased to $372.00 per acre-foot beginning January 1, 1998. Centennial would also be entitled to the exclusive use of 15.5% of the storage capacity in Mclellan Reservoir. During this agreement no ratchet down provisions would apply when Englewood would not make deliveries on scheduled water. Also addressed is the temporary excess water, which would will be available to Centennial for $85 per acre- foot. Another condition in the agreement is that if Centennial attempts to condemn any property, contract rights or rights-of-way of Englewood, then Englewood may terminate the existing Water Supply Agreement. FINANCIAL IMPACT Centennial would purchase temporary excess water for $85 per-acre foot. Centennial will be billed monthly, due in full 30 days from date of invoice . LIST OF ATTACHMENTS Proposed Bill for Ordinance Englewood -Centennial Temporary Agreement