HomeMy WebLinkAbout1999-06-08 WSB AGENDA' 'l
AGENDA
ENGLEWOOD WATER AND SEWER BOARD
JUNE 8, 1999
5:00 p.m.
CONFERENCE ROOM A
1. MINUTES OF THE MAY 11, 1999
WATER AND SEWER BOARD MEETING. (ATT. 1)
2. GUEST: JOHN COX -CALCON CONSTRUCTION -
3. RADCLIFF & NAVAJO -RAISING THE STORM INLET.
4. CENTENNIAL AGREEMENT. (ATT. 2)
5. FALL TOUR -RANCH CREEK and BOREAS PASS.
5. OTHER.
A 77. I
WATER AND SEWER BOARD
MINUTES
MAY 11, 1999
1. MINUTES OF THE APRIL 10, 1999 MEETING.
The Englewood Water and Sewer Board Minutes from the April
10, 1999 meeting were approved as written.
Ms. Habenicht moved;
Mr. Burns seconded:
Ayes:
Nays:
Members absent:
Motion carried.
To approv e the April 10, 1999
Englewood Water and Sewer
Board Minutes.
Habenicht, Higday, Clark,
Burns, Cassidy
None
Otis, Kasson, Vobejda,
Bradshaw
2. CENTENNIAL LEASE AGREEMENT.
Mr. Fonda discussed the concept of using virtual storage as
a basis for pricing water sold to Centennial. Raw water not
needed by Englewood at the time would be divided into three
price categories, which would be based on a 10-year moving
average delivery and a predetermined threshold. The virtual
storage concept, along with the existing and proposed
Centennial contract will be discussed at future Water Board
meetings.
3. WATER BOARD TOURS.
Councilperson Alex Habenicht recommended that a trip be
arranged for the Water Board to tour various Englewood
facilities such as Boreas Pass, Ranch Creek and the Allen
Filter Plant. Mr. Fonda concurred and a fall trip will be
arranged.
4. ENGLEWOOD /McLELLAN PROPERTY FOUNDATION.
Stu noted that an Englewood /McLellan Foundation is being
established by Englewood City Council to manage the
Englewood-owned McLellan property. The McLellan Foundation
will be comprised of Mike Flaherty, Stu Fonda, Frank
Gryglewicz, Bob Simpson , Dan Brotzman and Rick Kahm.
The next Water and Sewer Board meeting will be June 8, 1999
at 5:00 p.m . in Conference Ro om A.
Respectfully submitted,
Cathy Bu rrage
Recording Se c retary
\
'\ ' .
Exhibit A -Limits
Englewood's lease of raw water not needed by Englewood at the time is divided into three
price categories (high, med ium and low). The highest price category is based on Englewood's most
reliable water, and the other two categories are based on less reliab le water. These categories are
distinguished by a 10-year moving average delivery and a threshold, as illustrated by the following
graph:
Price Category Illustration
3000 -----------------------------------------------------------------------------------------------
10-YEAR AVERAGE
2500 -·~-------------.---\---~
-Q)
~ 2000 -t---
Q) ...
(,)
c(
c: ·;;; 1500
Q) ...
Q)
:?
~ 1000 -
500 -
.. -.. ..
I High Price I
THRESHOLD
The following tables of limits apply to Centennial's obligation to take Englewood's raw water
under this agreement in the high and medium price categories. Centennial is NOT OB LI GA TED
to take water in the low price category, or water above the limits, under any circumstances.
However, water Centennial chooses to take above the limits or in the low price category is counted
in the 10-year average which separates the medium and low price categories . Water not taken in the
low price category or above the limits is not counted in the 10-year average.
The first table of monthly limits will be used when this agreement is consummated. The next
(second) table of limits will be triggered when Centennial's previous year's raw water demand from
all sources [or should this be taps? To be determineefl fi rst exceeds 16,000 acre feet. Once
Centennial's total demand has reached 20,000 acre feet in a single year, the third (final) table will
comprise the permanent limits that will apply thereafter as long as this agreement is in effect.
Centennial's demand as used in this section includes calendar year total treated and untreated water
use from ALL water sources, including Englewood deliveries, Centennial's water resources, and
supplies from other sources such as the City of Denver or other entities.
This Draft Printed 04/19/99
Exhibit A -continued
Limits of Centennial's Obligation to take Englewood's Water in Acre Feet
(NOTE: Centennial's annual demands in acre feet may be converted into a specific
number of taps to trigger these limits before finalizing this agreement)
1. Before Centennial's demand reaches 16,000 AF/yr:
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
260 260 260 500 1070 1280 1430 1100 980 320 300 300 AF
2. After Centennial's demand reaches 16,000 AF/yr, but before 20,000 AF/yr:
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
390 390 390 750 1605 1920 2150 1650 1470 480 450 450 AF
3. After Centennial's demand reaches 20,000 AF/yr:
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
520 520 520 1000 2140 2560 2860 2200 1960 640 600 600 AF
This Draft Printed 04/19/99
Exhibit B -Annual Example of Threshold Operation
The table and graph on the following page illustrate a hypothetical operation of the threshold
and virtual storage, based on various deliveries of water from Englewood to Centennial.
Beginning in 1988, the table shows a 10-year period of 1500 AF deliveries (column B),
followed by annual deliveries of 1600, 1700 and 1800 AF. For each year, the threshold, 10-year
minimum and 10-year average deliveries are based on the previous year or period, since a new one
isn't computed until the current year's values are known. Columns E through J of the table show a
storage loop, in which the 900 acre-foot virtual storage reservoir is "filled" and "drained." Columns
D through N show the threshold loop, in which virtual storage is combined with current annual
deliveries and the 10-year minimum to determine if the threshold should change. Columns P
through R show the three categories of water assigned for the current year, based on this year's
beginning (last year's ending) threshold, 10-year minimum and 10-year average deliveries.
The graph shows the annual delivery as a lightly-shaded bar graph (yellow if color), with
virtual storage contents (beginning at 500 AF) as a cross-hatched bar graph stacked on top. The 10-
year average delivery is shown as a narrow dashed line (red if color), the 10-year minimum
delivery is shown as a wide dashed line, and the heavy solid line represents the value of the
threshold. The threshold used during any year is the value computed at the end of the previous year.
This hypothetical example of assumed annual deliveries demonstrates the reduction of the
threshold through a series of low-delivery years in which virtual storage is depleted as multiple
annual deliveries fall below the current threshold. This results in a decline of the threshold as long
as these conditions occur. Then, a period of high deliveries fills the virtual storage back to 900 AF.
The increase in the threshold doesn't take place until at least 10 years of annual deliveries have
exceeded the previous threshold (which has nothing to do with virtual storage). The new threshold
then becomes the 10-year minimum delivery for the previous 10-year period. Although the
threshold can fall based on a single year's performance, it takes 10 years for it to rise again.
The threshold is used to distinguish between the high and medium price categories. The
previous 10-year average delivery is used to distinguish between the medium and low price
categories. The 10-year minimum delivery is used to determine when and by how much the
threshold will be raised after a prolonged (10-year) period of increased deliveries. As stated in
Exhibit A, water Centennial chooses to take above the limits or in the low price category is counted
in the 10-year average which separates the medium and low price categories. Utilization of monthly
limits are not shown on the table or graph on the following page.
This Draft Printed 04/19/99
Exhibit B -continued
Example Table and Graph of Annual Threshold Operation
A B c D E F G H J K L M N 0 p Q R
Prev beg thresh paten poten end lower higher net Prev High Med Low
10-yr begin 900 hold thresh stor st or 900 change change thresh new 10-yr Price Price Price
Year Del iv MIN thres stor water excess gain loss stor thresh thresh chge thresh AVE Water Water Water
1988 1500
1989 1500
1990 1500 A LL VALUES IN ANNUAL ACRE FEET
1991 1500
1992 1500 NOTE : The hypothetical values in this spreadsheet do not include the application of li mits .
1993 1500 I I I
1994 1500 I THRESHOLD LOOP I
1 ---t-~-t---~~~~~~~~~~~~~~~~~~__,·-~-+-~+---+~-t
1995 1500 I I I I I 1---+---+---t--+----+---+----+---I
1996 1500 STORAGE LOOP
1997 1500
1998 1600 1500 1500 500 2100 100 100 0 600 0 0 0 1500 1500 1500 0 100
1999 1700 1500 1600 600 2300 100 100 0 700 0 0 0 1600 1510 1600 0 190
2000 1800 1500 1700 700 2500 100 100 0 800 0 0 0 1700 1530 1700 0 270
2001 2000 1500 1800 800 2800 200 200 0 900 0 0 0 1800 1560 1800 0 440
2002 1800 1500 1800 900 2700 0 0 0 900 0 0 0 1800 1610 1800 0 190
2003 1500 1500 1800 900 2400 -300 0 -300 600 0 0 0 1800 1640 1500 0 0
2004 1400 1500 1800 600 2000 -400 0 -400 200 0 0 0 1800 1640 1400 0 0
2005 1000 1400 1800 200 1200 -800 0 -800 0 -600 0 -600 1200 1630 1000 0 0
2006 800 1000 1200 0 800 -400 0 -400 0 -400 0 -400 800 1580 800 0 0
2007 500 800 800 0 500 -300 0 -300 0 -300 0 -300 500 1510 500 0 0
2008 400 500 500 0 400 -100 0 -100 0 -100 0 -100 400 1410 400 0 0
2009 1800 400 400 0 1800 1400 1400 0 900 0 0 0 400 1290 400 890 510
2010 2000 400 400 900 2900 1600 1600 0 900 0 0 0 400 1300 400 900 700
2011 2500 400 400 900 3400 2100 2100 0 900 0 0 0 400 1320 400 920 1180
2012 2700 400 400 900 3600 2300 2300 0 900 0 0 0 400 1370 400 970 1330
2013 2800 400 400 900 3700 2400 2400 0 900 0 0 0 400 1460 400 1060 1340
2014 2500 400 400 900 3400 2100 2100 0 900 0 0 0 400 1590 400 1190 910
2015 2500 400 400 900 3400 2100 2100 0 900 0 0 0 400 1700 400 1300 800
2016 2000 400 400 900 2900 1600 1600 0 900 0 0 0 400 1850 400 1450 150
201 7 2100 400 400 900 3000 1700 1700 0 900 0 0 0 400 1970 400 1570 130
2018 2300 400 400 900 3200 1900 1900 0 900 0 0 0 400 2130 400 1730 170
2019 2700 1800 400 900 3600 2300 2300 0 900 0 1400 1400 1800 2320 400 1920 380
2020 2500 2000 1800 900 3400 700 700 0 900 0 200 200 2000 241 0 1800 610 90
Hypothetical Englewood Deliveries to Centennial
c=:::J Deliveries ~V i rtual Storage -Threshold --10-yr Min. ------10-Yr. Ave. I
4000
1!3500 -1---------------l!Ol;-i I-m~~ !-, L; = = =I =I =I J: I~ I} ~ 1500 1-.:!.;;L ~= I ~!-_ --~ _-_ -_,-__ -_-_ -_-~----;-; ~ ----~ -,_ /"~ 'J
:_?1000 -------~___,''~-----------I-~·-· · ---------1
~ 50 ~ --------n-n n ------------
. . . . . . .
This Draft Printed 04/19/99
'.
Exhibit B -continued
General Formulas for Computations in Exhibit B Table:
Column: Description/Computation/Formula:
A Input data (year)
B Input data (assumed annual delivery in AF)
c Minimum delivery for previous 10-year period (AF)
D Beginning threshold= last year's ending threshold (Col. N) once reaching 1800 AF
E Begin virtual storage = last year's Col. J (begin first month at 500 AF)
F Col. B + Col. E (threshold water: amount considered to possibly reduce threshold)
G Col. B -Col. D (delivery excess over threshold -deficit if negative)
H Col. G if positive (potential virtual storage gain -not yet truncated)
I Col. G if negative (potential virtual storage loss -not yet truncated)
J 0 <(Col. E +Col. H +Col. I)< 900 (end of year virtual storage -must be between 0 and 900)
K If Col. F <Col. D, (Col. F -Col. D); otherwise, 0. (amount by which threshold is lowered)
L If Col. C >Col. D , (Col. C -Col. D); otherwise , 0. (amount by which threshold is raised)
M Col. K +Col. L (net threshold change)
N Col. D +Col. M (sum of previous threshold and net change to threshold= new threshold)
0 10-year average of previous deliveries (from Col. B)
p Minimum of Col. B and Col. D (High price category delivery in AF -lesser of delivery and
thresh.)
Q =if(O>P, if (O>B,B-P,0-P),O) (Medium price category delivery in AF -between thresh & 10-Yr.)
R =if(B>O,B-0,0) (Low price category delivery in AF -above 10-year average)
NOTE: Formula format for "if' statements: =if( condition, if true, if false)
This Draft Printed 04/19/99
Exhibit C -Example of Monthly Limits and Price Categories Operation
The graph that follows is a monthly breakdown of the three price categories and the
application of limits for a high-delivery year (over 5000 acre feet delivered) in which limits AND
all three price categories are demonstrated. In general, the high priced water is assumed to be
delivered first, medium price next, and low price last. Where monthly limits are less than the water
available, and Centennial elects not to accept the excess water available, water in excess of the
limits is assumed to be not delivered and does not become part of subsequent 10-year average
calculations in this example. In actual practice, should Centennial choose to take water above limits
or in the low price category (neither of which it is obligated to take), those deliveries are counted in
subsequent 10-year average calculations.
For the year 1960 from a simulated yield based on historical hydrology and river calls, certain
of Englewood's water rights and water supply contracts were modeled (by Englewood's consultant;
Mr. Wood) to produce a monthly yield available to Centennial in excess of Englewood's need for
water at the time. The graph on the following page illustrates the application of monthly limits
(angled stripe portion of bar graphs) to Englewood's yields, by excluding those yields from further
analysis in this study. In this scenario, the angled stripe areas are assumed not taken by Centennial,
and not stored or otherwise delivered at a time more convenient to Centennial. They are, in effect,
assumed to be spilled from both Englewood's and Centennial's use.
The following description includes references to both black and white and color graphs:
The darkest shaded area of bar graph (purple if color) represents Englewood's deliveries of
high-priced water up to the limits, and up to the 1800 acre foot threshold in this case. Once the
1800 acre-foot threshold has been reached, the shading on the bar graph turns to a gray color (light
blue if color), representing the further allocation of water to the medium price category (again, up
to the limits). Notice that in the month of May, some of the medium priced water is spilled as well,
since it goes over the limit for that month . Finally, the blank bar graphs (light yellow if color) show
the remaining yield over the 10-year average delivery, which is the low price category yield. In
some years (not this one), there are limits which apply to the low price category as well, but this
application is moot, since Centennial is not obligated to take either low-priced water or water
available above the limits.
Notice that the current limits (dashed line) create a spill situation, whereas the buildout limits
(solid line -red if color) would not. In this particular year and scenario, Englewood would not have
to spill any water once Centennial has grown into at least a 20,000 acre foot total demand
(triggering the buildout limits). While there may be months in which Englewood's water will be
spilled even after the buildout limits are in effect, Englewood may have opportunities to manage its
water supplies so as to minimize or eliminate those spills, including the temporary use of
Centennial's storage space in McLellan Reservoir.
This Draft Printed 04/19/99
Exhibit C (continued)
Potential Delivery
High Price
Medium Price
Low Price
Above Limit
3500 l -~ 3000
LL
Cl)
~ 2500
c:
"' 2000
Cl)
"i::
-~ 1500 -Cl)
0
~ 1000
.c -c:
0 500
~
Projected Operation from one year in Historical Study Period for a High-Yield Example
JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC toUmax
513 477 523 361 1276 1193 585 388 288 118 0 0 5721
260 260 260 361 659 0 0 0 0 0 0 0 1800
0 0 0 0 411 1193 121 0 0 0 0 0 1725
0 0 0 0 0 0 464 388 288 118 0 0 2195
253 217 263 0 206 0 0 0 0 0 0 0 938
Englewood Delivery Categories
-High Price llliD Medium Price ~Low Price
~Above Limit ---Current Limits Buildout Limits
.. .. ..
""--.
'
'
--------.
JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC
1960
April 16, 1999
CURRENT AGREEMENTS
(WATER SUPPLY AGREEMENT, DATED 11/3/80, AND
MEMORANDUM OF UNDERSTANDING,
DATED 5/24/90 AND 617190)*
THIS AGREEMENT is made this 3rc day of November, 1980, to
be effective January 1, 1981, between the ClTY OF
ENGLEWOOD, a municipal corporation under the laws of the
State of Colorado ("Englewood"), whose address is 3400 South
Elati Street, Englewood, Colorado 80110, Attention, Director of
Utilities, and MISSION VIEJO COMPANY, a California
corporation qualified to do business in Colorado ("Mission"),
whose address is 6 Inverness Court East, Englewood, Colorado
80112, Attention, Vice President of Municipal Services.
I. RECITALS AND AGREEMENT
1.1 Mission's Hi~hlands Ranch Development. Mission is
the owner of a parcel of land in the unincorporated area of
Douglas County, Colorado, known as Highlands Ranch,
containing approximately 21, 437 acres. Mission plans to
develop Highlands Ranch as a planned community
accommodating a mix of residential, commercial, industrial and
other land uses. Mission desires to acquire water, in addition to
water from water rights now owned by Mission, for the purposes
of water service to Highlands Ranch by Mission or by one or
more water and sanitation districts.
* All language in the left column is from the 1980 Water Supply
Agreement unless otherwise noted.
990108.ds
PROPOSED SUPERSEDED
AGREEMENT CONCEPTS
Agreement between Englewood and Centennial. (replace Mission
with Centennial throughout document).
1.1 New language saying Centennial serves Highlands Ranch
and the Northern Douglas County Water and Sanitation District,
only. This agreement creates no obligation upon Englewood to
provide water service to any other areas.
1.2 Enelewood's Surplus Water. Englewood owns water
divertable under its decreed water rights, which is surplus to its
presently foreseeable needs, according to, and as established by,
(a) a Report on Estimation of Yield of Water Rights dated
February 28, 1979 by Camp, Dresser&. McKee and (b) a Water
Source Management Master Plan Report dated March 12, 1980 by
Wright-McLaughlin Engineers. These reports were made
pursuant to previous agreements between Englewood and Mission
dated October 31, 1978 and May 22, 1979, as ratified and
approved by Englewood Ordinance No. 26, Series of 1979,
adopted June 18, 1979.
990108 .ds
1.2 Drop reference to two previous reports. Replace with:
Englewood owns water divertable under its decreed water rights,
which is surplus to its presently foreseeable needs, according to,
·and as established by, (a) an engineering report entitled
"Engineering Analysis of Englewood's Water Supplies and Water
Requirements" dated October 3, 1996 by Martin and Wood Water
Consultants Inc. and (b) (a letter from Joe Tom Wood to Stu
Fonda, to be supplied later). For purposes of this agreement, and
as described in the Englewood City Charter, Article XIII, Section
124, surplus water is defined as water supply available to
Englewood which "exceeds that necessary for the present needs
of the inhabitants of the City ... (and is) subject to the present and
future needs and requirements of the City and its inhabitants."
1.3 Recital related to history of the 1980 Water Supply
Agreement and 1990 Memorandum of Understanding and
desire to supersede and consolidate these agreements.
1.4 Summary of principles of superseded agreement:
1. Both Englewood and Centennial desire to amend their
contractual relationship in such a way that Englewood
will use its water resources to supply Centennial with
water not needed by Englewood at the time and use of
Englewood facilities while Centennial will pay
Englewood a negotiated fair market value for the water
and use of facilities.
2. Except for a three-year initial period, unit prices and total
payment for water deliveries will be based on actual
performance, rather than projected yields. As experience
is gained, performance criteria (described herein) will
take over to define how much water is delivered, at what
' pnce.
3. Payments for the use of Englewood's water (water
resources yield) and facilities (storage and ditch capacity)
will be separated. The use of Englewood's facilities
under this agreement will continue to be available to
Centennial, regardless of water delivery quantities, as
long as Centennial pays for the use of those facilities.
4. This agreement will not have delivery schedules, though
Centennial 's obligation to take Englewood's water will
have monthly limits based on Centennial's total demand.
1.3 Agreement of Parties. Mission desires and hereby agrees 1.5 Retain
to purchase, and Englewood desires and hereby agrees to sell,
water for Highlands Ranch, in consideration of, and under and
subject to, the terms and provisions of this Agreement.
1.4 Englewood City Charter. This agreement is made under 1.6. Retain
and in conformance with the provisions of the Charter of the City
of Englewood which control the lease or sale of water produced
by the exercise of Englewood's decreed water rights, the sale or
exchange of those water rights, and the operation and
maintenance and management of Englewood's Municipal Water
System which Charter provisions presently consist of Article
VIII, Part IV, Sections 6I, 62 and 63 and Article XIII, Sections
121, 122, 123 and 124. Insofar as applicable, said Charter
provisions are incorporated herein and made a part hereof and
990108 .ds
shall supersede any apparently conflicting provisions otherwise
contained in this Agreement. The benefits and obligations under
this Agreement shall not be modified by any amendment hereafter
made to the Charter of the City of Englewood except as may
otherwise be agreed to by Englewood and Mission .
II. AMOUNTS AND STORAGE OF WATER
2.1 Annual Amount of Water. Englewood agrees to deliver
to Mission, at the point or points of delivery hereinafter provided,
5,000 acre feet of raw water each year during the term of this
Agreement ("Annual Amount of Water").
990108 .ds
Eliminate previous language. Replace with:
2.1 Englewood agrees to offer to Centennial all surplus water
it has available at any time. Delivery schedule is eliminated.
Centennial informs Englewood of its desire to not take available
water. No specific water rights are identified. Englewood will
identify whether it is delivering single use or reusable water. If
Englewood delivers reusable water, and Centennial realizes
additional delivery from the reuse of that reusable water, then
Englewood shall be paid for such additional delivery in
accordance with Section 4 of this agreement. [Question: what
clarification is needed as to all the way reusable water might be
utilized?] if water is offered by Englewood and not taken at the
time by Centennial, Englewood can sell that water to other parties
on a spot sale basis.
Water delivered pursuant to paragraph 3 .3 of the 8/11/95
"Settlement Agreement" between Denver, Englewood and Cyprus
Climax Metals Co., known as "paid deliveries", which also is
addressed in paragraph 21 of the 8/3177 "Water Lease and
Management Agreement" between Englewood and Thornton,
later assigned to Centennial, will now be Centennial's first choice
as to whether to receive delivery from any designation by Denver
of the water's availability. This change of priority as to accepting
this water supersedes the previous first right of refusal right
Centennial previously enjoyed from paragraph 21 of the 8/3/77
·agreement. If Centennial declines to take the paid delivery water
when it is available, Englewood can choose to accept this water
and [do what with it related to this contract?].
[Question: Do we need to amend the 813177 agreement to
correctly accomplish this proposed change to its terms?]
2.2 Monthly Schedule Water. Englewood agrees to deliver I Eliminate
to Mission 1,500 acre feet out of the Annual Amount of Water in
accordance with the Monthly Delivery Schedule attached hereto
as Exhibit A ("Monthly Schedule Water"). The Monthly
Delivery Schedule sets forth the percent of Monthly Schedule
Water to be delivered each month during the term of this
Agreement. Englewood shall deliver Monthly Schedule Water
for each month on a uniform daily basis throughout each month
or otherwise in accordance with the demand therefore to service
Highlands Ranch. The percentages and amounts of water
specified in the Monthly Delivery Schedule may be modified
from time to time by Mission with the written consent of
Englewood if the modified schedule is consistent with the ability
of Englewood to deliver the water.
990108 .ds
2.3 Unscheduled Water. Englewood agrees to deliver to
Mission 3,500 acre feet out of the Annual Amount of Water at
such times during each year as it is available and can be delivered
by Englewood and taken by mission ("Unscheduled Water"). To
the extent reasonably possible, Unscheduled Water shall be
delivered generally in accordance with the monthly percentages
set forth in the Monthly Delivery Schedule.
2.4 Water Storace Space. Englewood agrees to keep and
maintain space for storage of water deliverable to Mission
hereunder in Englewood's Mclellan Reservoir equal to 15.15%
of the storage capacity of Mclellan Reservoir ("Water Storage
Space").
The present storage capacity of Mclellan Reservoir is
5940 acre feet and, accordingly, the amount of Water Storage
Space to be maintained by Englewood for the benefit of Mission
is presently 900 acre feet. However, the storage capacity may be
reduced by siltation and it is understood by Mission that the
amount of Water Storage Space to be maintained for Mission will
accordingly be reduced proportionately. Englewood agrees to
give notice to Mission from time to time as may reasonably be
required to advise Mission of changes in storage capacity
affecting the amount of Water Storage Space of Mission.
If Englewood determines to restore the storage capacity
of Mclellan Reservoir by dredging, enlargement or otherwise,
Mission shall have the option of sharing 15.15% of the resulting
restoration in storage capacity by paying 15.15% of the costs and
expenses of restoring the storage capacity. If Mission elects not
to share costs and expenses of restoring storage capacity, Mission
990108 .ds
Eliminate
Eliminate previous first paragraph. Replace with:
2 .2 15 .15 % of storage space in Mclellan is assigned to
Centennial for its exclusive and unrestricted use.
Retain second paragraph .
Retain third paragraph .
shall not be entitled to share in the restored Water Storage Space.
If there is a substantial reduction in storage capacity by siltation
and Englewood does not desire to restore storage capacity by
dredging or otherwise, Mission may, at its option, remove the
siltation at Mission's sole cost and expense and Mission shall be
entitled to the restored Water Storage Space but not in excess of
900 acre feet.
The prices specified in this Agreement for water are in I Eliminate first sentence and first word of second sentence. Retain
part based on the availability of the Water Storage Space for rest of paragraph.
Mission in Mclellan Reservoir. Accordingly, if there is damage
or impairment of such Water Storage Space because of flood or
other occurrence other than siltation, Englewood shall take
prompt and reasonable steps at its cost and expense to restore the
Water Storage Space in the event of damage or impairment for
reasons other than siltation.
2.5 Storage Water. Englewood agrees to deliver water out I Eliminate first paragraph.
of the Annual Amount of Water at Mclellan Reservoir as may be
necessary from time to time to fill or replenish Mission's Water
Storage Space ("Storage Water") subject to the following
conditions. Englewood shall be obligated to deliver Storage
Water with water that Englewood has the right to store and only
after Englewood has filled or replenished Englewood's water
storage space in Mclellan Reservoir (which is presently equal to
34.85%) except that, if Englewood has used water from
Englewood's water storage space in Mclellan Reservoir to
furnish water to any party or for any purpose other than to furnish
treated water to Englewood's treated water customers, Englewood
shall fill or replenish Mission's Water Storage Space before
replacing such water in Englewood's Storage Space.
990108 .ds
Mission shall have the right to use Storage Water to meet
fluctuations in demand for Water to service Highlands Ranch but
it is understood and agreed that Mission's Storage Water Space
and the Storage Water therein is primarily for the purpose of
providing a supply of water at such time or times as Englewood is
unable to deliver Monthly Schedule Water.
If water stored in Mclellan Reservoir is drained for
necessary repairs, Englewood shall replace the Storage Water of
Mission as soon as is possible and practicable.
Mission shall bear losses of water in storage due to
evaporation, seepage, siltation, or due to the failure of Mclellan
Reservoir and Dam because of flood or other occurrence, or any
other failure beyond the reasonable control of Englewood, in the
proportion that the amount of storage water of Mission in
Mclellan Reservoir from time to time bears to the total amount of
water stored in Mclellan Reservoir from time to time
2 .6 Phase-in of Use -Demand Less than Supply. The
development of Highlands Ranch will take place over a number
of years and it is understood that the total of the Annual Amount
of Water, of the Monthly Schedule Water and of the Unscheduled
Water will not be immediately required by Mission . It is also
understood that demand for water for Highlands Ranch in any
year may be less than the water available under this agreement
and available under Mission's other water rights and sources .
Accordingly, subject to the "take or pay" obligation of Mission as
hereinafter set forth in this Agreement, Mission shall not be
obligated to take all of the water to which it is entitled under this
990108.ds
Eliminate second paragraph.
Retain third paragraph modified to state Centennial and
Englewood shall replace water drained proportionally to
quantities in storage by each party at the initiation of the repairs.
Retain fourth paragraph; clarify the phrase "from time to time".
Eliminate previous language . Replace with:
2.3 Centennial's Oblieation Limits. Centennial's obligation
to take Englewood's water under this agreement shall be limited
to the monthly volumetric limits shown in Exhibit A. This
provision may at times supersede and reduce Centennial 's general
obligation to take water from Englewood in both the high and
medium price categories (as described in Sections 3.9 and 3 .10).
Englewood may store water not taken by Centennial above these
limits for later delivery to Centennial. Water above these limits
Agreement. If less than the full Annual Amount of Water is taken
in any calendar year, the amounts of water to be delivered up to
1,500 acre feet shall be delivered on a monthly basis in the
percentage set forth in the Monthly Delivery Schedule attached
hereto as Exhibit A. Mission shall, on or before December 31, of
each year during the term of this agreement, advise Englewood as
to whether Mission expects to take all of the water to which it is
entitled.
2. 7 Supply Less Than Demand. It is recognized that
provisions should be made for the possibility that sufficient water
may not be available to Englewood to meet the needs and
requirements of Englewood and its inhabitants and to furnish all
of the water under this Agreement ("Water Shortage"). Since this
Agreement involves the sale of water outside the territorial limits
of Englewood, it is mutually understood and agreed that
Englewood shall have the right, in its reasonable discretion, to
interrupt or reduce delivery of water under this Agreement to
provide adequately for users within the territorial limits of
Englewood. Before interruption or reduction of delivery of water
under this Agreement, water use by Englewood and Mission shall
be curtailed so as to try to avoid if at all possible such interruption
or reduction of delivery of water. Englewood shall curtail water
990108 .ds
shall not be counted again st delivery amounts or threshold water
until and unless it is accepted by Centennial, or later made
available in a month in which combined deliveries do not exceed
·the limits in Exhibit A.
Water Centennial chooses to take above these limits may be in
any price category (see Sec tions 3.9, 3.10 and 3.11), depending
upon the category of water being delivered at the time. It is
deemed that the first water t a ken in a particular year will be in the
high price category, follow e d by medium and low price
categories, as monthly deliveries are made throughout the year.
Once Centennial has taken delivery of its full annual obligation of
high and medium price category water, monthly limits will be
moot, since Centennial has no obligation to take water above the
medium price category.
2.4 Replace with the following:
Supply Less Than Demand. It is recognized that provisions
should be made for the possibility that sufficient water may not be
available to Englewood at any given time to meet the then-present
needs and requirements of Englewood and its inhabitants. Since
this Agreement involves the sale of water outside the territorial
limits of Englewood, it is mutually understood and agreed that
Englewood shall have the right, in its reasonable discretion, to
interrupt or reduce delivery of water under this Agreement to
provide adequately for users within the territorial limits of
Englewood. Englewood agrees that water deliverable under this
Agreement shall not be interrupted or reduced to serve new users
outside the territorial limits of Englewood.
usage in accordance with the provisions of Englewood's Charter
and Ordinances as the same may be amended from time to time
and Mission shall curtail usage of the water deliverable under this
Agreement in the same manner but Mission shall not be required
to curtail usage of other water available to Mission. Englewood
agrees that water deliverable under this Agreement shall not be
interrupted or reduced to serve new users, other than Mission and
the City of Thornton under the present agreement between
Englewood and Thornton, outside the territorial limits of
Englewood. If Englewood is unable to deliver all of the water to
which Mission is entitled under this Agreement or is unable to
furnish Monthly Schedule Water in the amounts and at the times
provided in this Agreement ("Delivery Deficits"'', Mission shall
not be required to pay for the water not so delivered.
990108 .ds
2.8 Non-liability of Englewood. It is mutually agreed that
the water available to Englewood is dependent on sources from
which the supply is variable in time and quantity and beyond the
control of Englewood. Accordingly, Englewood shall have no
liability to Mission on account of legal or physical unavailability
of water, failure of water supply due to inadequate nmoff, failure
of water supply due to inoperability of Mclellan Reservoir or
Englewood's water system because of flood or other occurrence,
or any other failure beyond the reasonable control of Englewood.
In such circumstances, Mission shall not be required to pay for
water not available for delivery and the prices payable for water
by Mission shall be subject to adjustment in accordance with the
provisions of this Agreement for Price Adjustments if Delivery
Deficits occur. Notwithstanding the foregoing, Englewood agrees
to use every reasonable means to furnish a continuous supply of
water under this Agreement in view of historical experience with
water supply factors so far as reasonably possible and to take
prompt and reasonable steps to cure any interruption of water
supply resulting from inoperability of facilities in Englewood"
water system.
990108 .ds
2.5 Replace with the following:
Non-liability of Englewood. It is mutually agreed that the
·water available to Englewood is dependent on sources from
which the supply is variable in time and quantity and beyond the
control of Englewood. Accordingly, Englewood shall have no
liability to Centennial on account of legal or physical
unavailability of water, failure of water supply due to inadequate
runoff, failure of water supply due to inoperability of Mclellan
Reservoir or Englewood's water system because of flood or other
occurrence, or any other failure beyond the reasonable control of
Englewood. In such circumstances, Centennial shall not be
required to pay for water not available for delivery subject to the
terms and provisions of this Agreement. Notwithstanding the
foregoing, Englewood agrees to use every reasonable means to
furnish all water not needed at the time by Englewood (including
reserves of water for Englewood's subsequent use) and to take
prompt and reasonable steps to cure any interruption of water
deliveries resulting from inoprability of facilities in Englewood's
water system. Englewood's agreement to deliver water to
Centennial shall not create an obligation upon Englewood to
construct, equip, and operate any well or wells. [Should
Englewood be liable for non-availability of facilities (ditch or
reservoir)?]
Memorandum of Understanding language related to City Ditch
usage (paragraph 4):
4. In 1990 and in subsequent years, Centennial can use
Englewood's surplus capacity in the City Ditch and the Mclellan
Pump Station for the delivery of Centennial's Plum Creek and
other available water rights into Mclellan Reservoir.
990108 .ds
Ill. WATER DIVERSION FACILITIES USAGE
3.1 Period of Availability of Capacity in City Ditch lncludinc
Enclewood's City Ditch Pump Station and Pipeline to
McLellan Reservoir
Centennial's right to capacity is subordinate to Englewood's
current and future obligation to deliver water to other parties
which is diverted under existing decrees and agreements in the
City Ditch. Englewood will not make future obligations
detrimental to Centennial.
Whenever Englewood does not require capacity for her own
needs including Englewood's need for capacity to deliver water to
Centennial under current and future agreements (including but not
limited to "Basic Delivery" and "Paid Delivery" of Ranch Creek
water), Centennial will have the exclusive right to use the
remaining capacity of City Ditch, City Ditch pump station and
Englewood's pipeline to McLellan Reservoir for delivery of any
legally divertable water for Centennial 'sown needs.
3.2 Availability of Capacity in Nevada Ditch
Whenever Englewood does not require capacity for her own
needs, including Englewood's use of her Nevada Ditch capacity
at and in City Ditch, Centennial will have the exclusive right to
use Englewood's rights to capacity in the ditch (including all
shareholder rights described by the ditch company bylaws) for
delivery of any of Centennial 's legally divertable water.
990108 .ds
3.3 Enelewood's Use of Capacities in Centennial Water
Diversion and Delivery Facilities
· Centennial agrees to allow Englewood the use of capacity in any
and all of Centennial 's current and future water diversion and
delivery facilities which are capable of delivery of water from the
South Platte River to or toward Mclellan Reservoir, or to City
Ditch, to the extent that Centennial does not require same to carry
its own water supplies. Englewood shall reimburse Centennial
monthly for the O&M costs of Centennial's facilities at the ratio
of the volwne of Englewood's water carried through a facility to
the total volume of water carried through that facility.
990108 .ds
3.4 Capital Improvements of City Ditch Facilities
3.4(a) Facilities Principally Benefitine City Ditch and/or
Enelewood
If Centennial wishes to construct improvements to City Ditch
(such as replacing the Marcy Gulch siphon to increase its
capacity) or to Englewood's existing City Ditch pump station
(such as removing the intake manifold and constructing a wet
well), Centennial may do so and pay for same, and Englewood
may later acquire the facility and its capacity by electing to
reimburse Centennial for the capital costs of such facility as
described below, at Englewood's option . Englewood must .
approve plans and specifications for construction, and will not
unreasonably withhold such approval. Englewood may, at its sole
discretion, and only following reimbursement of capital costs to
Centennial, plus CPI adjustment, less depreciation under an
agreed upon depreciation schedule for each facility, own such
improvements. Centennial will have a priority of usage for the
capacity from any improvement whose capital expenses have not
been reimbursed by Englewood. Centennial's priority of usage
for a given improvement does not extend to any other element(s)
of Englewood City Ditch/City Ditch Pump Station where capacity
is unavailable to Centennial. For example, if Centennial were to
enlarge the capacity of a given segment of City Ditch by 10 cfs,
and thereby establish its priority of usage of this 10 cfs, said
enlargement by Centennial would not entitle Centennial to any
priority of usage of Englewood's City Ditch Pump Station, if such
pump station capacity were limiting at a given time. Englewood
will operate such improvements whether Centennial is reimbursed
for capital expenses or not.
Ill. PURCHASE PRICE AND PAYMENTS
990108 .ds
3.4{b) Separate Facilities Principally Benefitine
Ccn ten nial
If Centennial wishes to construct a separate facility which will
principally benefit Centennial (such as a pump station along City
Ditch between Chatfield and Englewood's City Ditch pump
station), Centennial may do so and pay for same. Englewood
must approve plans and specifications for construction and will
not unreasonably withhold such approval. Centennial would have
a priority of usage of such facility and Englewood would have
access to the facility's excess capacity. Centennial shall maintain
such facility. Englewood shall operate such facility in accordance
with Centennial 's desires to divert or pump Centennial 's water
through such facility, consistent with Centennial 's rights to ·
capacities in Englewood's City Ditch/City Ditch Pump Station
established by this agreement.
3.5 Capital Improvements of Nevada Ditch Facilities
Improvements to Nevada Ditch facilities by Centennial will be
made in accordance with the ditch company by-laws and subject
to Englewood's prior approval of plans and specifications, which
approval will not be unreasonably withheld.
IV. PURCHASE PRICE AND PAYMENTS
4 .1 Payments Separate. Payments for the use of
Englewood's water (water resources yield) and facilities (storage,
ditch capacity and pump station/pipeline use) will be separated.
The use of Englewood's facilities under this agreement will
continue to be available to Centennial regardless of water delivery
990108 .ds
quantities, as long as Centennial pays for the use of those
facilities .
These ongoing payments will be made for the continuing right to
use these facilities without regard to the amount of raw water
Englewood delivers or has available.
4.2 Payments for Storace. Centennial will pay Englewood
$200,000 per year CPI adjusted annually, for the use of 15.15%
(in accordance with section 2 .2 of this agreement) of storage
space in McLellan Reservoir for the storage of any water legally
storable in the facility. Centennial has the first and exclusive
right to use of this storage space.
4.3 Payments for Use of City Ditch and Nevada Ditch
4.3(a) Annual Payment for Use of Capacities in City Ditch
and Nevada Ditch . An annual payment will be charged to
Centennial of $30,000, CPI adjusted annually, as consideration
for both City Ditch and Nevada Ditch usage and associated
ancillary facilities .
4 .3(b) Additional O&M Payments. Centennial will
reimburse Englewood for a reasonable share of Englewood's City
Ditch annual O&M expenses for that portion of City Ditch from
the ditch headgate/stilling basin to the existing City Ditch pump
station. The O&M payment will be based upon (1) Englewood's
determination of the annual O&M expense for the segment of
City Ditch described in this subsection (b), using the same
methodology as described in the I 0/30/95 agreement between
Denver Water and Englewood, and (2) pro-rating for Centennial's
990108 .ds
volume of City Ditch to total ditch volume of use in the segment
of City Ditch described in this subsection (b).
Any annual O&M charges by the Nevada Ditch Company against
Englewood specifically for the carriage of Centennial's water
shall be reimbursed by Centennial to Englewood. Englewood
shall pay the costs of normal Nevada Ditch annual O&M
assessments.
4.3(c) Additional O&M Payments for Use of City Ditch
Pump Station. Centennial will reimburse Englewood monthly
for O&M costs of the City Ditch Pump Station at the ratio of the
volume of Centennial 's water pumped to the total volume of
water pumped at the pump station.
4.4 Payment for Water: Determination of Annual
Quantity of Water That Will be Paid n Specified Price.
Except for a three-year initial period, unit prices and total
payment for water deliveries will be based on actual performance,
rather than projected yields. As time passes, performance criteria
(described herein) will automatically define how much water is
delivered at various prices.
Three categories of water prices will be applied: high, medium
and low. The highest price category is based on the concept of
Englewood's most reliable water, and the other two categories are
based on the concept of less reliable supplies:
Definitions:
• A variable, annually computed threshold (based on
past delivery performance) is used to distinguish
between the high and medium price categories of
990108 .ds
water. This threshold reflects the volume of annual
high-priced water delivery in acre feet that Centennial
is obligated to take from Englewood and pay for,
subject to Englewood's water availability and within
limits defined in this agreement.
• A 10-year average of total water deliveries (water
offered by Englewood and taken by Centennial) under
this agreement (including all three price categories)
will be used to distinguish between the medium and
low price categories of water delivery. Both the
threshold and the I 0-year average are computed at the
end of each year, to be applied the following year.
Water available above Centennial 's obligation limits
(defined herein) and not taken by Centennial is not
included in this l 0-year average. Also, water
delivered that is known as Ranch Creek "Paid
Deliveries'', as described in the 8/11/95 "Settlement
Agreement" between Denver, Englewood and Climax
is not included in the l 0-year average unless
Centennial has notified Englewood that Centennial
declines to take the "Paid Delivery" water. If
Englewood subsequently stores this water for later
delivery it then becomes part of the 10-year average.
• For example, if the annual threshold (computed from
previous year' performance) is 1,800 acre feet and the
10-year average delivery is 2,500 acre feet, the first
1,800 acre feet available for delivery will be subject to
the high price, the next 700 acre feet (2,500 -1,800)
will be subject to the medium price, and deliveries
over 2,500 acre feet (the 10-year average) will be
subject to the low price.
990108 .ds
At the end of each annual accounting period, Englewood's
deliveries during the preceding year(s) will be used to update the
threshold and 10-year average. These and other updated
parameters will become the revised criteria for the following year.
The threshold between the high and medium prices may change,
based on past delivery performance. If Englewood under-delivers
(according to the criteria established herein), the threshold
(reflecting the maximum amount of high-priced water) will
decline. If Englewood is able to deliver above the established
criteria over an extended period ( l 0 years), the threshold will
increase. This threshold is a measure of Englewood's actual
delivery performance demonstration that one category of water is
more reliable than the others.
4.5 Permanent Mechanism: Additional Definition:
Virtual Storacc:
A reasonable measure of Englewood's most reliable water
available under this agreement (high-priced category)
conceptually considers the combination of both storage
and direct water rights yield. Since Centennial may
choose to use Englewood's direct yield for purposes other
than to make Englewood's yield more reliable (through
physical storage), Centennial agrees to keep track of how
reliable Englewood's yield could have been if some (or
all) of it were stored in the 900 acre foot space in
Mclellan Reservoir. These considerations lead to a
theoretical storage operation and justify the price for the
high price category of water.
990108 .ds
When Englewood delivers more water in a year than the
current threshold (maximum amount of water assigned to
the high price category), some (or all) of the delivery
above the threshold could have been stored in the 900 acre
feet space to make the overall yield from Englewood's
water rights more reliable. By adding the current yield or
subtracting current withdrawals to the amount of water in
an imaginary storage account (virtual storage) from
previous deliveries above the threshold, a more accurate
view of the reliability of Englewood's water yield is
obtained.
Virtual storage is defined as water delivered in excess of the
threshold deliveries that could have been stored in a 900 AF
storage space. This virtual storage is depleted only if Englewood
delivers less than the threshold amount. Since Centennial may
choose to use direct water delivery above the threshold amount
rather than store it, an account of virtual storage will be kept for
the purposes of adjusting the threshold downward (if necessary).
In a year in which Englewood delivers (or has available) less
water than the current threshold amount, the amount of water
computed to remain in virtual storage will be added to direct
deliveries (or available water) by Englewood to consider whether
the threshold should be reduced. This simulates the theoretical
water availability if water (above the threshold) in previous years
had been stored. Specific criteria of how the threshold changes
are described later in this agreement.
4.6 Water Payments. Threshold Water is the sum of
Englewood's annual delivery and the amount of water accounted
,'
990108 .ds
for in virtual storage, based on the last end-of-year accounting.
For example, if Englewood delivered 1,000 acre feet last year and
previous deliveries above the threshold have theoretically
accumulated in virtual storage up to the maximum of 900 acre
feet, then the amount of water available (for adjusting the
threshold downward if necessary) is 1,900 AF. This computation
of Threshold Water is only used to adjust the threshold
downward, and has no other purpose. Although Englewood
delivers and gets paid only for the 1,000 acre feet of actual
delivery in this example, the additional 900 acre feet in virtual
storage (previously delivered and paid for) may allow the
threshold to remain at its present level without dropping if the
shortfall is not chronic. Once virtual storage is depleted to zero,
however, threshold water is equivalent to direct yield. ·
The 10-year minimum delivery by Englewood to Centennial is
the minimum annual delivery during the previous 10-year period.
This includes water Centennial was obligated to take but did not,
but does not include threshold water theoretically in virtual
storage. For example, suppose Centennial only took 800 acre feet
of the 1,000 acre feet Englewood had available as direct yield in
the two higher price categories. The minimum delivery would
still be con s idered to be l ,000 acre feet, since the first two price
categories represent Centennial's obligation to take water
Englewood has available (subject to limits described herein).
Water available in virtual storage has nothing to do with the 10-
year minimum delivery or increasing the threshold. It is only
used for decreasing the threshold.
4.7 Chanees to the Threshold. The following permanent
3 .1 Price for Monthly Schedule Water. Mission agrees to
pay to Englewood $200 per acre foot for up to 1,500 acre feet of
water delivered in accordance with this Agreement in any
calendar year provided such water is delivered at Mclellan
990108 .ds
criteria will be used to determine annual changes in the threshold:
a) The threshold will rise when the previous 10-year
minimum annual delivery (including water Centennial
was obligated to take but did not) exceeds the previous
year's threshold. The new threshold becomes this
previous 10-year minimum annual delivery.
b) The threshold will fall when the amount of threshold
water (sum of direct yield and virtual storage) falls
below the previous threshold. The new (lowered)
threshold becomes this amount of threshold water.
Once lowered, the threshold cannot be raised for at
least I 0 years.
Example calculations are shown in Exhibits B and C.
4.8 One Time Threshold Scheduled Increase. Beginning
with a threshold and a 10-year average both set at 1,500 AF/yr,
Centennial will accept the following increases to the threshold in
each of the first three years of increased deliveries, if these
amourtts are actually delivered:
• First year: 1,600 AF
• Second year: 1,700 AF
• Third year: 1,800 AF
If an annual delivery falls short of these targets, the permanent
mechanism described below for changing the threshold will be
implemented immediately.
4.9 Price for "Hieh Priced" Water. Deliverable water is
that which Englewood has available for delivery to Centennial, up
to the limits discussed later in this proposed agreement. This
does not count virtual storage, but is actual water available for
Reservoir in accordance with the Monthly Delivery Schedule. direct use or storage in a particular year. Centennial may or may
not be required to take this water, depending on the criteria
below:
Centennial will pay Englewood a unit price of $289/AF (adjusted
to value calculated at time of agreement signing) for deliverable
raw water up to the previous end-of-year threshold. This "high
price" category need not be delivered on a schedule, but will be
subject to monthly limits to Centennial's obligation to take water
from Englewood.
3.2 Price for Unscheduled Water. Mission agrees to pay to 4.10 Price for "Medium Priced" Water. Centennial will
Englewood $100 per acre foot of all other water delivered in pay $15 0 per AF (adjusted to value calculated at time of
accordance with this Agreement in any calendar year up to 5,000 agreement signing) for deliverable raw water above the threshold
acre feet of water delivered hereunder. up to the 10-year average. Centennial will be obligated to pay for
deliverable raw water up to the l 0-year average, including the
"High" and "Medium" price categories. Deliverable water does
not include water Englewood has available above the delivery
limits defined later in this agreement.
3.3 Price for Extra Water. Mission agrees to pay to 4.11 Price for "Low Priced" Water. Centennial will pay
Englewood $50 per acre foot for any additional water requested Englewood $85/ AF (adjusted to value calculated at time of
by mission and delivered by Englewood in any calendar year agreement signing) for deliverable raw water requested and
which is not part of the Annual Amount_ of Water or of any delivered in excess of the previous 10-year average deliveries,
Additional Surplus Water ("Extra Water"). without obligation to take such water.
4.12 Price for "Paid Deliveries" from Paraera12h 3.3 of
the 8/11/95 "Settlement Aereement" Between Denver~ Cy12rus
Climax Metals Co. and Enelewood. The Paid Delivery charge
herein defined supersedes the charge described in paragraph 21 of
990108 .ds
3.4 Minimum "Take or Pay" Obligation. Mission agrees to
pay Englewood for any water available for delivery by
Englewood in accordance with this Agreement which is not taken
by Mission in any calendar year up to the minimum quantity of
water to be purchased in that year as set forth in the Minimum
Purchase Schedule attached hereto as Exhibit B. The minimum
quantity of water to be purchased in each calendar year beginning
in 1990 shall, as provided in the Minimum Purchase Schedule, be
5,000 acre feet per year. If Mission does not elect to take, in any
year, all of the water to which Mission is entitled under this
Agreement and Englewood sells raw water in that year to any
third party (other than the City of Thornton under the present
agreement between Englewood and Thornton), any amounts
payable to Englewood for such raw water sold shall be deemed to
have been paid by Mission and credited against the amounts
990108 .ds
the 8/3/77 Water Lease and Management Agreement originally
between Englewood and Thornton and later assigned to
Centennial. Centennial will pay to Englewood the sum of: a) the
then-current charge by Denver to Englewood for Denver's
delivery of "Paid Delivery" water, b) Englewood's cost of
pumping such water from City Ditch to Mclellan Reservoir
and/or Denver's charge to Englewood for Englewood's use of the
High Line Canal to carry such water to Mclellan Reservoir, and
c) an annually CPI-escalated charge per acre-foot of such water
delivered to Mclellan Reservoir for Centennial's use, the
anticipated initial charge being $20 per acre-foot. Centennial 's
responsibility to pay any and all of these charges is limited to
such water actually delivered by Englewood to Mclellan
Reservoir. Centennial has full rights to reuse this water.
4.13 Centennial is obligated to "take or pay", i.e. to pay for,
whether it can take or not, Englewood's water available in the
high and medium price categories (within limits defined herein),
but not the low price category. As additional amounts of low-
priced water are accepted by Centennial and delivered by
Englewood, the I 0-year average will rise. As deliveries fall
below the current I 0-year average, the 10 year average will
decline.
otherwise payable by Mission for water available but not taken by
Mission in that year. In the event Englewood is unable to sell raw
water which mission does not elect to take in any year, Mission
shall have the right to sell such raw water to any third party.
3.5 Adjustments of Purchase Prices. The purchase prices
per acre foot of water set forth above shall be adjusted for each
five-year period beginning as of January 1, 1986 and as of
January 1 of each fifth year thereafter in accordance with the
following provisions. The adjusted purchase prices shall be the
lesser of (a) adjusted purchase prices determined on the CPI Basis
or (b) adjusted purchase prices determined on the Appraisal Basis,
as these bases are hereinafter described.
3.6 CPI Basis for Adjustments. The CPI Basis for
adjustment of purchase prices shall mean an adjustment of each of
the purchase prices set forth above either upward or downward in
the same proportion by which the CPI, as hereinafter defined, for
September of 1985 or as of September of each fifth year
thereafter has increased or decreased over the CPI for September,
1980. The CPI shall mean the Consumer Price Index, All Urban
Consumers, Denver, Colorado Metropolitan Area, All Items,
( 1967 equals 100). In the advent the United States Bureau of
Labor Statistics shall discontinue the issuance of the CPI, then the
adjustment on the CPI Basis shall be made on the basis of
changes in the most comparable and recognized cost of living
index then being published.
3.7 Appraisal Basis for Adjustments. The Appraisal Basis
for adjustment of purchase prices shall mean an adjustment of the
purchase prices set forth above either upward or downward to the
Replace 3.5 and 3.6 with the following: 4.14 Adjustment of
Purchase Prices. All prices (for both water and facilities) will be
adjusted by a suitable CPI factor annually. [Does the CPI
calculation need to be further described?]
Revise(?)
Eliminate
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
990108.ds
appraised value of the water deliverable under the terms of this
Agreement. The Appraisal Basis for adjustment of purchase
prices shall be used only if Mission gives written notice to
Englewood of its desire to have an appraisal made of water value
within 60 days after written notice from Englewood to Mission of
the adjusted purchase prices for an ensuing five-year period as
determined on the prices for an ensuing five-year period as
determined on the CPI Basis for adjustment. If Mission gives
such written notice to Englewood of Mission's desire to have
appraisal made, the parties shall promptly thereafter cause an
appraisal to be made of the values of the water deliverable under
this Agreement. The appraisal shall be made by an appraiser or
by appraisers who are competent and recognized appraisers of the
value of water and the fees and expenses of the appraisers shall be
shared equally by Englewood and Mission. The parties shall seek
to agree on a single appraiser. If the parties cannot promptly
agree upon a single appraiser, either party may designate a
competent and recognized appraiser by notice in writing to the
other party and the other party shall, within 30 days thereafter,
designate a competent and recognized appraiser by notice in
writing to the first party. Within 30 days after the designation of
the second appraiser, the two appraisers so designated shall select
a third competent and recognized appraiser. As soon as
practicable after the designation of the single appraiser or of the
three appraisers, the single appraiser or the three appraisers shall
submit to the parties appraisals of the values of the Monthly
Schedule Water, of the Unscheduled Water, and of any Extra
Water deliverable hereunder. If there is a single appraiser agreed
upon by the parties, the appraised values determined by that
appraiser shall be deemed the appraised values of the water. If
there are three appraisers, the appraised values of raw water
990108 .ds
hereunder shall be the appraised values for any category of water
agreed upon by any two of the appraisers or, if no two of the
appraisers agree, the appraised values of water hereunder shall be
the average of the appraised values for any category of water of
each of the three appraisers. The appraised values of water as so
determined shall be used to determine the adjustment of purchase
prices only if, for any category of water, it is less than the
purchase price determined on the CPI Basis. Pending completion
of the appraisal, Mission shall make payments for water at the
prices determined on the CPI Basis for Adjustments. Upon
completion of the appraisal, Englewood shall refund amounts, if
any, paid by Mission in excess of the prices determined on the
Appraisal Basis for Adjustments.
3.8 Purchase Price Adjustments if Delivery Deficits Occur. I Eliminate
The prices specified above for Monthly Schedule Water and for
Unscheduled Water are based on the assumption by each of
Mission and Englewood that the water will, in fact, be "firm
yield" water, reliably available each year including years of
extreme drought conditions. If Englewood is unable to deliver all
of the Monthly Schedule Water and Unscheduled Water
("Delivery Deficits"), the amount of water in any category for
which there occurs a Delivery Deficit shall be reduced, the price
purposes, by the amount of the "Three Year Average Delivery
Deficit" for that category of water as hereinafter explained. The
Three Year Average Delivery Deficit for any category of water
shall be the average of the Delivery Deficits in any three
consecutive years for that category of water. The Three Year
Average Delivery Deficit for a category of water shall be
calculated after each year in which a Delivery Deficit occurs and
shall be compared with any previous Three Year Average
990108 .ds
Delivery Deficit for that category of water. For any year
thereafter, the highest of any prior Three YearAverage Delivery
Deficit for a category of water shall be deducte'd, for price
purposes, from the amount of water specified for that category of
water. For example, if the first Delivery Deficit for Monthly
Schedule Water occurs in the 30th year and is 75 acre feet, a Three
Year Average Delivery Deficit for this category of water would
then be calculated and would be 25 acre feet. In the 3 l st year and
each year thereafter, Mission would pay the price specified for
Monthly Schedule Water on only 1475 acre feet (1500 acre feet
less the then established Three Year Average Delivery Deficit of
25 acre feet). The reduction in the amount of water in any
category is hereinabove provided shall be applicable only for
price purposes and shall not reduce the amount of water in that
category for other purposes under this Agreement.
If a Delivery Deficit is the result of inoperability of McLellan
Reservoir or Englewood's water system, Englewood shall take
prompt and reasonable steps to cure the problem and, at such time
as the problem is cured, any reduction of price for water based on
a Delivery Deficit attributable to such problem shall no longer be
applicable.
If, after a Delivery Deficit, Englewood acquires or establishes
additional water supplies or otherwise establishes the existence of
Additional Surplus Water as hereinafter defined, Mission shall be
obligated to purchase the same at the prices for Monthly Schedule
Water or Unscheduled Water as the case may be in accordance
with the provisions set forth hereinafter in this Agreement for the
purchase of Additional Surplus Water.
990108 .ds
3.9 Billines and Payments. Mission shall pay Englewood I 4.15 Retain
monthly for water requested by Mission and actually delivered by
Englewood to Mission or to fill Mission's Water Storage Space in
Mclellan Reservoir and, after the end of each year, for water
available for delivery but not actually delivered to the extent
Mission is required to pay for the same under the terms of this
Agreement. Englewood shall prepare and submit the Mission
monthly a written invoice specifying the quantity of Monthly
Schedule Water delivered during the preceding month in
accordance with the Monthly Delivery Schedule, the quantities of
other water delivered hereunder during the preceding month, the
purchase prices per acre foot for each category of water, the total
purchase price for each category of water and the total amount
owed. Englewood shall deliver or mail such billings to Mission
as soon as reasonably practical following the end of each month
and Mission shall pay the amounts due to Englewood within 30
days after the receipt of the bill for a month. The billing by
Englewood for the month of December, to be delivered or mailed
to Mission in January shall include a statement of the amount, if
any, due from Mission to satisfy the Minimum Take or Pay
Obligation of Mission for the preceding calendar year.
3 .10 Measurement of Water Deliveries. Flow measuring I 4 .16 Retain
devices shall be installed by Mission at each point of delivery of
water hereunder which shall record the amount of water delivered
to Mission each month. Englewood shall have the right to inspect
the devices and if any are found to be improperly recording the
amount of water delivered hereunder, the devices shall be
repaired or replaced by mission and appropriate adjustments shall
be made for water previously delivered to adjust for any errors in
recording of water delivered hereunder.
990108 .ds
IV. TERM AND RENEWALS OF AGREEMENT V. TERM AND RENEWALS OF AGREEMENT
'
4.1 Term of Aereement. The term of this agreement shall 5.1 Retain
include the Initial Term and, if the renewal options hereinafter
specified are exercised, the renewal terms, all as hereinafter
specified.
4.2 Initial Term. The "Initial Term" of this Agreement shall 5.2 New start date.
be 20 years commencing January 1, 1981 and extending to
midnight on December 31, 2000.
4.3 Renewal Options . Mission shall have the option to 5 .3 Retain with modification of dates.
extend the Initial Term of this Agreement for up to four additional
successive 20-year periods. The "First Renewal Term" shall
commence on January 1, 2001 and extend until midnight on
December 31, 2020. The Second Renewal Term shall commence
on January 1, 2021 and shall extend until midnight on December
31, 2040. The Third Renewal Term shall commence on January
1, 2041 and shall extend until midnight on December 31, 2060.
The fourth Renewal Term shall commence on January 1, 2061
and shall extend until midnight on December 31, 2080.
4.4 Procedures for Renewal. Mission shall exercise the 5.4 Retain
options to renew the term of this Agreement by giving
Englewood written notice of the exercise of the option at least one
year before the next Renewal Term is to commence. It is
recognized that, due to the long term nature of this Agreement,
there may be an inadvertent failure of Mission to give timely
written notice of Mission's desire to extend the term of this
Agreement. Accordingly, if Mission fails to give written notice to
990108 .ds
Englewood of its desire to exercise any option to renew, Mission
shall, in any event, be required to give such written notice within
30 days after a written notice from Englewood .to Mission
advising Mission that Mission has filed to give written notice of
its intent to exercise its option to renew. If, through inadvertence
or otherwise, neither party gives a written notice, this Agreement
shall automatically continue on a year-to-year basis. If
Englewood subsequently gives written notice and Mission fails to
exercise its option to renew within 30 days after such written
notice, this Agreement shall expire on midnight of December 31
of the year in which such written notice is given by Englewood,
provided such written notice is given to Mission at least 30 days
prior to such December 31.
4.5 Mission Right of First Refusal. If, at any time during the
term of this Agreement, Englewood desires to lease or sell
water or water rights owned by Englewood, Mission shall
have the right to lease or purchase such water or water
rights on the same terms and conditions as Englewood
shall be willing to lease or sell the same to any other party.
The foregoing shall not be construed to authorize
Englewood to lease or sell, or to require Mission to bid
for, any water deliverable to Mission under this
Agreement or any water rights which are necessary or
desirable to assure the delivery of water as required under
this Agreement or to abrogate, limit or subordinate the
rights of Mission under this agreement if Mission does not
exercise its rights of first refusal.
990108 .ds
5 .5 Retain and add language expanding Centennial' s first
right of refusal right to include storage facilities and diversion
facilities capacity.
V. POINTS OF DELIVERY
5.1 Point of Delivery of Monthly Scheduled Water.
Monthly Scheduled Water shall be delivered by Englewood to
Mission at Mclellan Reservoir in accordance with the Monthly
Delivery Schedule attached hereto as Exhibit A .
5.2 Point of Delivery of Unscheduled Water. Unsch e duled
Water shall be delivered by Englewood to Mission at Mclellan
Reservoir if it is legally divertable to that location and if, in
Englewood's sole determination, delivery at this point will not
adversely affect other obligations of Englewood to supply water
to its inhabitants or other users. Unless and until Englewood
obtains a change in the legal point of diversion of any of its water
rights to a point at or near Chatfield Dam, Unscheduled Water not
delivered at Mclellan Reservoir shall be deliverable by
Englewood at the present Union A venue Pump Station of
Englewood on the south Platte River or at such other point or
points as the parties may subsequently agree in writing. If
Englewood is able to obtain a change of the legal point of
diversion of any of its water rights to a point of diversion at
Chatfield Dam, Unscheduled Water not delivered at Mclellan
Reservoir shall, with the consent of Mission, be delivered at
Chatfield Dam .
990108 .ds
5.6 Termination Resulting from Condemnation Action
Upon any action by Centennial or Englewood to condemn any
water right or any water facility owned or controlled by the other
party, this agreement shall automatically terminate.
VI. POINTS OF DELIVERY
6.1 All water subject to this superseded agreement will be
delivered at Mclellan Reservoir or, at Centennial 's choice and
where legally possible, at Centennial's proposed South Platte
Reservoir.
Eliminate
5.3 Possible Future or Ancillary Acreements. Englewood
is currently considering certain alternatives for changes in its
present water supply system and water supply facilities as set
forth in the Water Source Management Master Plan Report dated
March 12, 1980 by Wright-McLaughlin Engineers including the
transfer of the legal point of diversion for certain Englewood
water rights from Englewood's Union Avenue diversion facilities
to Chatfield Dam and the acquisition of a reservoir site and
installation of a reservoir pursuant to an .option for a reservoir site
on property owned by martin Marietta in J e fferson County,
Colorado. It is anticipated that Mission a nd Englewood will work
together and use their best efforts to enter into further and
ancillary agreements relating to the construction, operation and
maintenance of facilities which would enhance the availability
and quality of water for both Englewood and Highlands Ranch.
However, such further or ancillary contracts shall be separate and
distinct from this Agreement and this Agreement shall not be
conditioned in any way upon the entering into by either party of
any such future or ancillary agreements
VI PURCHASE OF ADDITIONAL SURPLUS WATER
Eliminate first sentence; retain rest. [Need to refer to earlier
section about constntction project process on City or Nevada
ditches?]
Eliminate Entire Section
6.1 Acreement for Purchase of Additional Surplus Water. I Eliminate all.
Under and subject to the terms and provisions hereinafter set
forth, Englewood shall be obligated to sell and deliver and
Mission shall be obligated to take or pay for Additional Surplus
Water, as hereinafter defined.
6.2 Additional Surplus Water Defined. "Additional Surplus I Eliminate all.
Water" shall mean raw water which is (a) additional to the water
otherwise to be delivered under this Agreement; (b) determined to
990108 .ds
be surplus to Englewood's then foreseeable needs; (c) determined
to be reliably available each year including years of extreme
drought conditions; (d) determined to be legally available to
Englewood; and (e) determined to be available at such point or
points of delivery at such times during each year and in such
quantities and of such quality as to be economically and
practically feasible for use to meet existing or projected water
demands for Highlands Ranch.
6.3 Time and Manner of Determination of Existence of I Eliminate all.
Additional Surplus Water. Englewood shall determine whether
or not it has any Additional Surplus Water from time to time as
circumstances may indicate during the term of this Agreement
and shall make the first such determination, in any event, within
24 months following the end of the first calendar year in which
water actually delivered to Mission under this Agreement equals
or exceeds 4,000 acre feet per year. Any such determination shall
be based upon a full and adequate study and report by competent
and recognized water engineers. If it is determined that
Englewood has Additional Surplus Water, Englewood shall give
written notice to Mission of that fact and shall furnish Mission
with copies of the studies and reports establishing the existence
and quantity of such Additional Surplus Water. Mission shall
have 12 months thereafter to examine and confirm the existence
of Additional Surplus Water and shall give written notice to
Englewood within said 12 months as to whether or not Mission
has confirmed that there exists Additional Surplus Water. If the
written notice from Mission to Englewood states that Mission is
not satisfied that there exists Additional Surplus Water,
Englewood and Mission shall diligently and in good faith seek to
resolve any questions and differences. If Englewood and Mission
990108 .ds
cannot resolve any questions or differences between them as to
the existence or quantity of Additional Surplus Water within six
months after Mission's written notice to Englewood, the
determination of whether or not Additional Surplus Water exists
and of the quantity thereof shall be resolved by arbitration in
accordance with. the rules of the American Arbitration Society.
6.4 Mission Oblieation to Take or Pay For Additional
Surplus Water. If it is determined in accordance with the
foregoing that Additional Surplus Water exists, Englewood shall
be obligated to sell and deliver the same and Mission shall be
obligated to take or pay for the same in accordance with the
following terms. Beginning January 1 of the third calendar year
following the calendar year in which determination is made by
Englewood and confirmed by Mission that such Additional
Surplus Water exists, Englewood shall be obligated to deliver all
of such Additional Surplus Water up to I 0,000 acre feet per year
and Mission shall be obligated to take all of such Additional
Surplus Water up to 10,000 acre feet per year or, to the extent in
any calendar year, Mission does not take the same, Mission shall
be obligated to pay for the lesser of the amount of such Additional
Surplus Water (but not in excess of 10,000 acre feet) or 50% of
the water used on Highlands Ranch during such year in excess of
5,000 acre feet.
Eliminate all.
6.5 Additional Surplus Water as Monthly Schedule or I Eliminate all.
Unscheduled Water. If any portion of Additional Surplus Water
is established and mutually agreed to be deliverable on a firm and
reliable basis at McLellan Reservoir each year in accordance with
the Monthly Delivery Schedule attached hereto as Exhibit A, and
is so delivered, that portion shall be deemed Monthly Schedule
990108 .ds
Water under the terms of this Agreement. Except as so
established and agreed, Additional Surplus Water shall be deemed
Unscheduled Water for all purposes under this'Agreement,
including delivery schedules, purchase price and point of
delivery.
6.6 Mission O~tion to Purchase Extra Water. Mission Eliminate all.
shall have the option to purchase any water of Englewood in
excess of the then needs and requirements of the City of
Englewood and its inhabitants whenever such water is available.
The purchase price for such Extra Water shall be $50 per acre
foot which purchase price shall be subject to adjustment as in the
case of the purchase prices of other water furnished under this
Agreement
VII. ACCOUNTING AND NOTIFICATIONS
Add section describing how Englewood and Centennial
will communicate to each other about:
• Englewood's water availability
• Water deliveries desired by Centennial
• Maintenance of various categories such as 10 year
average, Virtual Storage, Take or Pay water, etc.
• Notification Process
Vil. MISCELLANEOUS OTHER AGREEMENTS.
7 .1 Easements for Mission Transmission Facilities. Retain; broaden to not limit transmission of water to treatment
Englewood agrees to grant to Mission, without charge to Mission, plants only. Remove limitation relative to "water to be furnished
non-exclusive easements over, under and across any property hereunder" (second sentence).
owned or controlled by Englewood for the construction,
990108 .ds
operation, maintenance, repair and replacement of water intake
structures, lines and facilities which are necessary or desirable for
the transmission of water to be furnished under' this Agreement
from the points of delivery of such water to any water treatment
plant or treatment plants serving Highlands Ranch. Such intake
structures, lines and facilities may be oversized and used for other
water in addition to the water to be furnished hereunder. Such
easements shall be granted in specific instruments, to be executed
prior to the time of commencement of construction of any such
intake structures, lines or facilities. The easements to be granted
hereunder shall include an easement over, across and under
property now owned by Englewood on which is located McLellan
Reservoir, property now owned by Englewood located south of
County Line Road and property or easements owned by
Englewood from Chatfield Dam and from Englewood" Union
Avenue Pump Station to McLellan Reservoir. The easements to
be granted hereunder shall be located so ·as to maximize the
ability of Englewood to use the property for other purposes to the
extent reasonably possible without increasing the costs of
construction, operation, maintenance, repair or replacement of the
facilities to be installed therein.
7 .2 Enelewood Option to participate in Transmission
Facilities. If Mission decides to install facilities for the
transmission of water from Chatfield Dam or from Englewood's
Union A venue Pump Station to McLellan Reservoir, Englewood
shall have the option to participate in such facilities in accordance
with the following provisions.
Mission shall, prior to preparation of final plans and
specifications for such facility or facilities, provide Englewood
990108 .ds
Retain all. [Is there a conflict between the term "Chatfield Dam"
and earlier City Ditch facilities descriptions?]
with conceptual information concerning the estimated costs,
sizing, location and operation of the facility. Within 60 days after
receipt of such conceptual information, Englewood shall give
notice to Mission in writing as to whether Englewood is
interested in participating in the facility . If Englewood does not
give such notice to Mission, Englewood shall have no further
rights hereunder to participate .
If Englewood gives notice that it desires to participate in the
facility, Englewood and Mission shall seek to reach agreement as
to the design of the facility to accommodate use by both
Englewood and Mission and the terms of Englewood's
participation in the facility. If no agreement can be reached
between Englewood and Mission within 120 days after
Englewood's notice to Mission of Englewood's desire to
participate in the facility, Mission shall be free to proceed with
the facility and Englewood shall have no further rights hereunder
with respect to the facility
If Englewood participates in any facility, Englewood shall pay
its proportionate share of the costs and expenses of the facility
based on the relation of the capacity of the facility to use by
Englewood to the total capacity of the facility. Costs and
expenses to be shared by Englewood shall include all costs and
expenses including design, construction, interest and financing
costs. If Englewood desires to participate in a facility but does
not then have funds available from Mission under this Agreement
to finance its proportionate share of the costs and expenses of the
facility, Mission and Englewood agree to use their best efforts to
establish an arrangement by which mission will construct the
facility at Mission's initial cost and expense, with Englewood
990108 .ds
repaying to Mission Englewood's proportionate share of costs
and expenses of the facility, together with interest thereon at the
then prevailing interest rates, out of sums received by Englewood
under this Agreement in excess of $100,000.00 per year.
7.3 Restrictions on Use Outside Hie;hlands Ranch. The
Annual Amount of Water delivered under this Agreement will be
used only on Highlands Ranch and will not be sold to users
outside of Highlands Ranch without the written consent of
Englewood. For purposes of this Agreement, Highlands Ranch
shall include any lands which may hereafter be acquired by
Mission and developed by Mission as part of its Highlands Ranch
project. Mission shall have the right to sell or furnish water under
this Agreement to any one or more Water and Sanitation Districts
or other entities serving all or any portion of Highlands Ranch
and shall have the right to assign this Agreement in whole but not
in part to any Water and Sanitation District or other entity serving
all or any portion of highlands Ranch. Mission shall have the
right to sell or furnish any Additional Surplus Water purchased
under this Agreement to any party or user.
7.4 Mission Rie;hts to Use Other Water. Subject to the
obligations herein to take or pay for water to be furnished
hereunder, Mission shall have the full right and authority to use,
manage and utilize any and all other water or water rights owned,
controlled or acquired by Mission
VIII. MISCELLANEOUS
8.1 Submittal to Denver Water Board. It is acknowledged
by the parties hereto that Paragraph 14 ofa Modification of Water
990108 .ds
Modify to include all districts served by Centennial. (?)(Need
check of Englewood's decrees.) Eliminate last sentence.
Retain: eliminate part of first sentence up to comma.
Eliminate (Per JTW, the 1995 agreement contains no provision
for anything like 8.1)
Exchange Agreement dated September 2, 1969 between
Englewood, the Board of Water Commissioners of the City and
County of Denver ("Denver Water Board") and other parties,
provides:
14. Englewood agrees that it will not, after the date upon which
this instrument becomes operative, directly or indirectly, sell
water for domestic or municipal use, or provide domestic or
municipal water service, outside its municipal boundaries to any
person or entity for any area not currently receiving such water or
water service unless application therefor shall have first been
made to the Board and unless:
A. The Board finds that it is not able to
provide water or water service for such area within a reasonable
time after receipt of the application, with the result that the Board
declines to accept the application, or
B. The Board finds that it is able to
provide such water or water service, but for other reasons declines
to accept the application.
It is mutually agreed that this agreement shall be submitted to
the Denver Water Board for its consideration and action in
compliance with the provisions of Paragraph 14 of the
Modification of Water Exchange Agreement set forth above.
Mission, at the time of submitting this Agreement to the Denver
Water Board, agrees to make 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. This
990108 .ds
.,
Agreement may be terminated by mission at its option at any time
on or after January 1, 1981 unless the Denver Water Board has
declined to accept Mission's application.
8.2 Defaults and Remedies. If either party shall fail to keep I Retain
or perform any agreement on its part to be kept and performed
according to the terms and provisions of this Agreement and the
other party gives written notice specifying the particular default
or defaults, the party in default shall have such time as provided
in said notice, which period of time shall in no event be less than
90 days, in which to correct such default or defaults. Failure to
correct such default within the specified time period allowed, may
result in the termination of this Agreement by the party not in
default upon the giving of 60 days written notice to the party in
default. Waiver or failure to give notice of a particular default or
defaults, shall not be construed as condoning any continuing or
subsequent default. If either party should contest any action
pursuant to this Section in court, this Agreement shall remain in
effect pending a determination by the court in said action.
8.3 Notices, Etc. All notices, consents or other instruments or I Retain
communications provided for under this Agreement shall be in
writing, signed by the party giving the same, and shall be deemed
properly given and received when actually given and received or
three business days after mailed, if sent by registered or certified
United States mail, postage prepaid, addressed to a party at its
address set forth at the beginning of this Agreement or at such
other address as such party may designate by written notice to the
other party.
8.4 Successors and Assiens . The terms "Mission" and I Retain
990108 .ds
•
9
"Englewood" as used in this Agreement shall each include
successors and assigns. ;
'
8.5 Bindine Effect. The terms and provisions of this ·Retain
Agreement shall be binding upon and inure to the benefit of
Mission and Englewood.
8.6 No Third Party Beneficiaries. None of the terms or Retain
provisions of this Agreement shall be deemed to be for the benefit
of any person or party other than Mission and Englewood.
8.7 Entire Aereement. This Agreement constitutes the entire Retain
understanding between the parties with respect to the subject
matter hereof and all prior agreements or understandings shall be
deemed merged herein.
No representations, warranties or certifications, express or
implied, shall exist as between the parties except as stated herein.
8.8 Modifications in Writine. No amendments, waivers, or Retain
modifications hereof shall be made or deemed to have been made
unless in writing executed by the party to be bound thereby.
8.9 Severability. If any provision of this Agreement shall be Retain
invalid, illegal or unenforceable it shall not affect or impair the
enforceability of any other provisions of this Agreement.
8.10 Time Not of the Essence. Time shall not be of the Retain(?)
essence with respect to performance required under this
Agreement.
990108.ds
..
c
8.11 Applicable Law. This Agreement shall be interpreted Retain
and enforced according to the laws of the State: of Colorado.
'
8.12 Headines and Captions for Convenience. All headings ·Retain
and captions used in this Agreement are for convenience only and
are of no meaning in the interpretation or effect of this
Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of Retain
the day and year first above written.
990108 .ds