INTERGOVERNMENTAL AGREEMENT BETWEEN THE BOARD OF WATER WORKS OF PUEBLO, COLORADO, AND THE CITY OF AURORA, COLORADO, FOR THE LEASE AND TRADE OF WATER
THIS AGREEMENT is made and entered into this 19th day
of March , 1990, by and between the Board of Water Works of Pueblo, Colorado ("Pueblo"), and the City of Aurora, Colorado ("Aurora").
WITNESSETH:
WHEREAS, Pueblo and Aurora desire to enter into an
arrangement whereby a certain amount of water owned by Pueblo will be leased to Aurora for use within the Arkansas River Basin and, subject to the option of Aurora, outside of said Basin; and
WHEREAS, Pueblo and Aurora desire to enter into an
arrangement whereby certain water owned by Aurora will be traded for an equal quantity of water owned by Pueblo; and
WHEREAS, this arrangement will be of mutual benefit and convenience to the citizens of both Pueblo and Aurora.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Pueblo and Aurora hereby agree as follows:
ARTICLE I. LEASE OF WATER BY PUEBLO TO AURORA. A. Lease of Transmountain Water for In-basin Use.
1. General Terms. Pueblo agrees to lease 3,000 acre-feet of water per year to Aurora in the calendar years 1990, 1991, and 1992. Aurora agrees that said water shall be used solely within the Arkansas River Basin ("in-basin use").
2. -Delivery of Leased Water. Aurora agrees to accept delivery of water leased for in-basin use at the point where Pueblo releases said water into the Arkansas River Basin or, if released from storage, at the outflow of Clear Creek, Turquoise, Twin Lakes, or Pueblo Reservoir. Said deliveries shall be made in accordance with a written schedule to be agreed upon by the parties on or before May 1st of calendar year 1990 and on or before March 1st of the calendar years 1991 and 1992. In
scheduling such deliveries, the parties shall consider the prior experience gained by Pueblo in monitoring the annual runoff of water available from its transmountain water rights and the schedule shall reasonably correspond in time and amount with Pueblo's prior experience in realizing its annual runoff Of transmountain water. The parties further agree that their consent to this schedule shall not be unreasonably withheld.
As to water delivered from Pueblo supplies at Turquoise, Twin Lakes or Pueblo Reservoir, Pueblo and Aurora agree to cooperate in furnishing appropriate accounting records to the agencies operating or governing said reservoirs, and if approval of delivery of water is required by the agencies operating or
governing.said reservoirs, Pueblo and Aurora shall cooperate in obtaining such approvals.
In no event will Pueblo be required to deliver at a rate higher than 60 c.f.s. or at a rate less than 20 c.f.s.
3. Source of Leased Water. Pueblo agrees to provide all water leased by Aurora for in-basin use from its transmountain water supplies delivered to the Arkansas River Basin or from such supplies stored at Clear Creek Reservoir,'Twin Lakes Reservoir, or Turquoise Reservoir, including but not limited to, return flows of transmountain water.
4. Transportation Losses. Any and all transportation losses against the water leased for in-basin use shall be borne by
Aurora.
5. Consideration. In consideration of the water leased for in-basin use, Aurora agrees to pay Pueblo the sum of Two Hundred Twenty-five Thousand Dollars ($225,000.00), payable at the rate of Seventy-five Thousand Dollars ($75,000.00) per year. Payment shall be made on or before May 1st of calendar year 1990 and on or before March 1st of the calendar years 1991 and 1992.
6. "Take-or-pay" Basis of Lease. Pueblo and Aurora agree that the lease of 3,00Q acre-feet of water annually for in-basin use shall be on a "take-or-pay" basis. Accordingly, Aurora
agrees to pay. to Pueblo the full contract price for 3,000 acre-feet of such water each year in which this lease is in effect, whether or not it actually takes delivery of water from Pueblo. Likewise, Pueblo agrees to make the full quantity of water to be supplied pursuant to the lease available for delivery to Aurora each year in which this lease is in effect.
B. Option to Lease Additional Water for In-Basin Use.
1. General Terms. In each of the calendar years 1990, 1991 and 1992, Aurora shall have the option to lease from Pueblo
additional water up to and including 2,000 acre-feet of transmountain water per year for in-basin use.
2. Notice. Aurora agrees to notify Pueblo, in writing, of its intent to exercise its option to lease water for in-basin use by May 1, 1990 as to water to be delivered in 1990, and by
September 30th .of the year preceding the calendar year in which it requests delivery of such water as to water to be delivered in
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1991 and 1992. Said notice shall serve as a prerequisite to exercising this option and shall state, with particularity, the quantity of water Aurora desires to lease in the pertinent
calendar year.
3. Consideration. In consideration of additional water leased for in-basin use, Aurora agrees to pay Pueblo the amount of Twenty-five Dollars ($25.00) per acre-foot of water so
leased. This payment shall be made on or before May 1, 1990 as to water to be delivered in 1990 and on or before January 1st of the year in which such water is to be delivered to Aurora as to water to be delivered in 1991 and 1992.
4. "Take-or-pay" Basis of Lease. The parties agree that, once written notice is received by Pueblo that Aurora is
exercising its option, Aurora shall be obliged to lease additional water for in-basin use on a "take . or pay" basis.
Accordingly, Aurora agrees to pay the full contract price for the quantity of water it requests for each year in which it exercises this option, whether or not it actually takes delivery of water from Pueblo. Likewise, Pueblo agrees to make the entire amount of water to be supplied pursuant to Aurora's request available for delivery each year in which this option is exercised.
C. Option to Lease Water for Out of Basin Use.
1. General Terms. In each of the calendar years 1991 and 1992, Aurora shall have the option to lease from Pueblo up to and including 10,000 acre-feet of transmountain water per year for use outside the Arkansas River Basin ("out-of-basin use").
2. Notice. Aurora agrees to notify Pueblo, in writing, of its intent to exercise its option to lease water for out-of-basin use by September 30th of the year preceding the calendar year in which it requests delivery of such water. Said notice shall serve as a prerequisite to exercising this option and shall state, with particularity, the quantity of water Aurora desires to lease in the upcoming calendar year.
3. Delivery of Water for Out of Basin Use. Aurora agrees to take delivery of water for out of basin use at Twin Lakes
Reservoir, Turquoise Reservoir, at the option of Pueblo, or the Otero Pump Station Inlet, at the option of Aurora. Said
deliveries shall be made in accordance with a written schedule to be agreed upon by the parties with sixty (60) days after the date upon which Aurora chooses to exercise its option. In scheduling such deliveries, the parties shall consider the prior experience gained by Pueblo in monitoring the annual runoff of water
available from its transmountain water rights and the schedule shall reasonably correspond in time and amount with Pueblo's
prior experience in realizing its annual runnoff of transmountain water. The parties further agree that their consent to -Ellis
schedule shall not be unreasonably withheld.
-As to water delivered from Pueblo supplies at Turquoise, Twin Lakes or Pueblo Reservoir, Pueblo and Aurora agree to cooperate in furnishing appropriate accounting records to the agencies operating or governing said reservoirs, and if approval of delivery of water is required by the agencies operating or
governing said reservoirs, Pueblo and Aurora shall cooperate in obtaining such approvals.
In no event will Pueblo be required to deliver at a rate higher than 60 c.f.s. or at a rate less than 20 c.f.s.
4. Consideration. In consideration of the water leased for out-of-basin use, Aurora agrees to pay Pueblo the amount of
Seventy-two Dollars ($72.00) per acre-foot of water so leased. This payment shall be made on or before January 1st of the year in which such water is to be delivered to Aurora.
5. "Take-or-pay" Basis of Lease. The parties agree that, once written notice is received by Pueblo that Aurora is
exercising its option, Aurora shall be obliged to lease water for out-of-basin use on a "take or pay" basis. Accordingly, Aurora agrees to pay the full contract price for the quantity of water it requests for each year in which it exercises this option, whether or not it actually takes delivery of water from Pueblo. Likewise, Pueblo agrees to make the entire amount of water to be supplied pursuant to Aurora's request available for delivery each year in which this option is exercised.
ARTICLE II. TRADE OF WATER BETWEEN PUEBLO AND AURORA
1. General Terms. Beginning on January 1, 1992, on the first day of January of each year during which this Agreement is in effect, Pueblo and Aurora agree to engage in a simultaneous trade of equal quantities bf water. Pueblo shall receive a quantity of water from certain rights known as the Rocky Ford Ditch rights ("RFD water"), which Aurora is entitled to use and possess as the result of the decree issued by the District Court, Water Division II, in Case No. 83CW18, dated November 3, 1986. ("RFD decree"). In return, Aurora shall receive an equal
quantity of transmountain water owned by Pueblo.
2. Delivery. Aurora agrees to deliver to Pueblo all water to be traded under this Agreement at Pueblo Reservoir or at any other location which Pueblo may designate at its option, provided always that such location be proper under the RFD decree. Pueblo agrees to deliver to Aurora all water to be traded under this Agreement at Twin Lakes Reservoir, Turquoise Reservoir, at the option of Pueblo, or the Otero Pump Station inlet, at the 'option of Aurora.
3. Storage. Aurora agrees to provide, at its own expense, adequate and appropriate storage for water delivered to it by Pueblo at Twin Lakes Reservoir and/or Turquoise Reservoir. Pueblo agrees to provide, at its own expense, adequate and
appropriate storage for water delivered to it by Aurora at Pueblo Reservoir or any other location which Pueblo may designate at its option, provided always that such location be proper under the RFD decree. Each party shall provide, at its own expense, all required storage and/or diversion facilities to receive the water delivered to it under this Agreement.
4. Quantity. Aurora shall have the option of trading water with Pueblo man amount up to and including the full yield of the RFD decree, provided that such amount shall not exceed 10,000 acre-feet of water per calendar year. Pueblo agrees to permit Aurora to trade waters it owns in the Arkansas River Basin,
provided that the total amount of such waters in combination with the total amount of RFD water to be traded with Pueblo does not exceed 10,000 acre-feet per calendar year and, further, that such waters are fully amenable for use and reuse, including the right to recapture and use return flow to extinction after initial use, in a manner comparable to those transmountain water rights owned by Pueblo.
5. Payment. In consideration of this trade of water and in recognition of the respective value of the waters to be traded, Aurora agrees to pay to Pueblo the amount of Fifty Dollars
($50.00) per acre-foot of water, for the first 4,000 acre-feet of water traded in each year of this Agreement. In addition, Aurora agrees to pay to Pueblo the amount of Sixty Dollars ($60.00) per acre-foot of water for all water traded over the amount of 4,000 acre-feet In each year of this Agreement.
6. Readiness-to-Serve Charge. Beginning on January 1, -1992, on the first day of January of each of the fifteen (15) years of this Agreement and, if Aurora chooses to exercise its option to extend this Agreement for an additional five (5) years, on the first day of January of each such additional five (5) years of this Agreement, Aurora agrees to pay to Pueblo a "readiness-to-serve" charge of Two Hundred.Thousand Dollars ($200,000.00). The Two Hundred Thousand Dollar ($200,000.00)
"readiness-to-serve" charge shall be due and payable from Aurora to Pueblo each of the fifteen (15) years of this Agreement, and for the additional five (5) years if Aurora exercises its option to
extend the Agreement, whether or not Aurora requests the trade of any water under Article II, Paragraph 8 below. When paid, such Two Hundred Thousand Dollar ($200,000..00) "readiness-to-serve" charge shall be credited against the payment Aurora is to make for the first 4,000 acre-feet of water traded in the same
calendar year. In the event that water in excess of the amount of 4,000 acre-feet is traded in any given year, the balance of the payment owed by Aurora shall be paid to Pueblo on a monthly basis at the time that such water is. marked over to Pueblo.
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-7. Management of and Compliance with Court Decrees. Aside from its obligation to use all water delivered to it in
accordance with the terms and conditions of the applicable water court decree, Pueblo shall have no responsibility under the RFD decree or any other decree which entitles Aurora to the water it seeks to trade under this Agreement. Aurora agrees to be and remain responsible for complying with all conditions and
provisions of its various water court decrees throughout the term of this Agreement until all water to be traded is marked over and delivered to Pueblo.
8. Notice. Beginning January 1, 1992, on or before the
first day of January for each year during which this Agreement is in effect, Aurora agrees to notify Pueblo, in writing,, of the quantity of water which it desires to trade with Pueblo during that calendar year. Said notice shall establish, on an annual basis, the maximum quantity of water that each party is obligated to deliver under this Agreement.
9. Take-or-pay Basis. Pueblo and Aurora agree that, after such time as Pueblo receives notice of the quantity of water to be traded by the parties, such trade shall occur on a take-or-pay basis. As a result, Aurora agrees to pay to Pueblo the full
contract price for the quantity of water designated in said notice, whether or not it actually takes delivery of such water from Pueblo. Likewise, Pueblo agrees to make the entire quantity of water designated in said notice to be traded available for delivery to Aurora each year during which this Agreement is in effect.
10. Term of Trade Agreement. The agreement between Pueblo and Aurora to trade water shall commence on January 1, 1992 and continue thereafter for a term of fifteen (15) years. Aurora shall have the option of extending this Agreement for an
additional five (5) years, provided that it notifies Pueblo, in writing, of its intent to exercise this option on or before one hundred eighty (180) days prior to the expiration of this
Agreement.
11. Pueblo's Right to Ask for a Non-Injury Determination under the RFD Decree. The RFD decree contains at page 22 in paragraph 9.22, the following language:
"...Further, such waters may be reused or put to
successive use within the Arkansas River Basin, but only after this court determines, under its retained
jurisdiction in this case, that such use will not be injurious to other water users. The parties reserve the right -to challenge the identification and quantification for reuse of such waters...."
In order to assure that Pueblo may have the benefit of reuse and successive use of water traded to it, Pueblo at any time
during the first twelve (12) years of this Agreement may instruct Aurora to institute appropriate proceedings, pursuant to the
decretal language above quoted, for a determination that Pueblo's reuse and successive use of RFD decree waters, using accounting procedures consistent with those established in Pueblo's decree in 84 CW 177 or such other accounting procedures as are
acceptable to the court, are not injurious to other water users. Pueblo may fully participate in such action at Aurora's cost as hereafter specified.
Upon receipt of such instruction, Aurora shall promptly file and pursue to final judgment, including appeals if necessary, such proceedings. Aurora shall bear its own costs therein, and shall reimburse Pueblo for its legal, engineering, and other costs of the proceedings, provided that Pueblo's entitlement to reimbursement shall not exceed $25,000.00. Aurora shall
currently and promptly reimburse Pueblo for these costs following receipt of invoices therefor. Recognizing that the terms,
conditions, and operation consequences devolving from such a proceeding may vitally affect Pueblo's water supplies, Aurora agrees that Pueblo, if it chooses to participate, shall have the direction and control of the proceedings in the water court
hereby contemplated. Pueblo and Aurora agree to full mutual cooperation and consultation in such proceedings.
If the water court shall.determine that the use of RFD water return flows within the Arkansas River Basin is injurious to other water users, then Pueblo at its option may decline to make further trades of its transmountain water for Aurora RFD water under this agreement. If Pueblo declines to trade water with Aurora it will notify Aurora of that decision in writing. If Pueblo declines to make such trades, then Aurora will be excused from making further payments to Pueblo pursuant to Article II, paragraphs 5 and 6 of this Agreement from the time of such notification to Aurora by Pueblo. In addition, if Pueblo declines to make such trades, it shall refund to Aurora
one-fifteenth (1/15) of the $300,000.00 earnest money payment for each year, or portion of a year remaining under the original term of this Agreement.
All other payments made by Aurora prior to such notice from Pueblo, including earnest money payments not refunded, payments • for lease water, payments for water previously traded, and
readiness-to-serve payments previously made shall belong to Pueblo and Aurora shall not be entitled to any refund of them.
12. Conditional Agreement. Notwithstanding the provisions of Article II, paragraph 11, Pueblo and Aurora agree that this Agreement to trade water is conditioned upon a thorough review by each party of the legal and engineering aspects of each water
court decree under which the other party claims the right to
possess and use the water sought to be traded. As a precursor to any trade of water under this Agreement, both parties must
confirm that the water each seeks to trade is amenable for use and reuse, including the right to recapture and use return flow to extinction after initial use, in a manner comparable to both parties' transmountain water rights. Within sixty (60) days from the execution of this Agreement, each party shall review decrees identified by the other party as being the source of trade
supplies and shall notify the other party, in writing, of any objection to the terms of said decrees. The parties agree that each shall use its best efforts to rectify any such objection to the satisfaction of the other within a reasonable amount of time after notification thereof.
13. Increase in Rates. Beginning January 1, 1993, the rate of payment set forth in Article II, Paragraph 5 and the readiness to serve charge set forth in Article II, Paragraph 6 of this
Agreement shall be subject to annual increase. The parties agree that the rate of any such increase shall be the percentage of any increase in the cost per thousand gallons charged to customers of the Aurora Utilities Department during the preceding year. Such cost shall include water rates, fees, surcharges or other sums charged to customers of the Aurora Utilities Department for water service, however denominated, but shall not include new
connection tap fees or meter fees. ARTICLE III. GENERAL PROVISIONS
1. Entire Agreement of the Parties. This written Agreement constitutes the entire agreement between the parties and
supersedes all prior written or oral agreements, negotiations, representations and understandings of the parties with respect to the subject matter contained herein.
2. Amendment. This Agreement may be amended, modified, changed, or terminated in whole or in any part only by written agreement duly authorized and executed by the parties hereto.
3. Enforcement. The parties agree that this Agreement may be enforced in law or in equity for specific performance,
injunctive, or other appropriate relief, including damages, as may be available according to the laws and statutes of the State of Colorado. It is specifically understood that by executing this Agreement, each party commits itself to perform pursuant to the terms hereof, and that any breach hereof resulting in any recoverable damages shall not thereby cause the termination of any obligations created by this Agreement unless such termination is declared by the party not in breach hereof.
4. Venue. Venue for the trial of any action arising out of any dispute hereunder shall be in the appropriate district court of general jurisdiction of the State of Colorado pursuant to the appropriate Rules of Civil Procedure.
5. Failure to Perform Due to Conditions Beyond the Control of the Other Party. In the event that either party fails to perform under this Agreement and such failure is the result of conditions or occurrences beyond its control, the other party shall be relieved from all of its obligations under said
Agreement, including any obligation to pay any sum of money to the defaulting party. The party unable to perform shall have a reasonable time period to remedy the condition that prevents its performance. In the event that payment has been made by a party for the delivery of -water under this Agreement and, subsequently, the party responsible for such delivery is unable to Perform due to circumstances beyond its control, the party who is entitled to delivery shall be refunded the amount of payment made for water that cannot be delivered, plus reasonable interest thereon.
6. Agreement Sublect to Charter. This Agreement shall be subject to the charters of both Pueblo and. Aurora, as well as all state statutes which apply to home rule municipalities, including any provision which restricts the delivery of surplus water
outside the boundaries of such municipality if and when such water is needed by its inhabitants. Pueblo's Charter, Article 15, Section 15-2, presently contains the following language: "Surplus water may be supplied to territories outside the City until same is needed by the inhabitants of the City."
7. Earnest Money Payment; Aurora agrees to make two earnest money payments to Pueblo in the amount of One Hundred and Fifty Thousand Dollars ($150,000.00) each as further consideration for the lease and trade of water under this Agreement. The first payment shall be made to Pueblo upon execution of this Agreement, while the second payment shall be made to Pueblo on or before January 1, 1991. The two earnest money payments in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) each are in
addition to all other payments required of Aurora to Pueblo under this Agreement.
8. Intent of Agreement. This Agreement is intended to
describe the rights and responsibilities of and between the named parties and is not intended to, and shall not be deemed to confer rights upon any persons or entities not named as parties, nor to limit in any way the powers and responsibilities of Pueblo,
Aurora, or any other entity not a party hereto.
9. Effect of Invalidity. If any portion of this Agreement is held invalid or unenforceable for any reason by a court of • competent jurisdiction as to either party or as to both parties,
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such portion shall be deemed severable and its invalidity or unenforceability shall not cause the entire Agreement to be terminated.
10. Assignability. Neither Pueblo nor Aurora may assign its rights or delegate its duties hereunder without the prior written consent of the other party.
11. Successors and Assigns. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
12. Term of Agreement. Unless otherwise stated herein, this Agreement shall be in full force and effect from the date of the execution of this Agreement, following approval by the Board of Water Works of Pueblo, Colorado, and by the City Council of Aurora, Colorado.
13. Waiver of Breach. Waiver of any breach of any of the-provisions of this Agreement by either party shall not constitute a continuing waiver of any subsequent breach by said party, by either of the same or any other provision of this Agreement.
14. Multiple Originals. This Agreement may be
simultaneously executed in any number of counterparts, each of which shall be deemed an original but all of which constitute one and the same agreement.
15. Headings for Convenience. Headings and titles contained herein are intended for the convenience and reference of the
parties only and are not intended to confine, limit, or describe the scope or intent of any provision of this Agreement.
16. Recordation. Following the execution of this Agreement, the parties shall cause this Agreement to be recorded with the Clerk and Recorder's Offices of such county or counties in Colorado as they may desire.
17. Notice. •Any notices, demands-, or other communications required or desired to be given under any provision of this
Agreement shall be given in writing, to be delivered personally, or sent by certified or registered mail, return receipt
requested, postage prepaid, to the following: To Pueblo:
Executive Director Board of Water Works City of Pueblo, Colorado 319 West 4th Street
P.O. Box 400
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To Aurora:
Director of Utilities City of Aurora, Colorado
1470 South Havana Street, Suite 400 Aurora, Colorado 80012
or at such other addresses as either party may hereafter from time to time designate by written notice to the other party in accordance with this paragraph. Notice shall be effective upon receipt.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be executed as of the day and year first written above. ATTEST: a7 ) Verdon L. JoYinson Secretary-Treasurer ATTEST: Clem W. S
Actidig City Clerk
APPROVED AS TO FORM:
Mi ael J. a
ssistant C Attorney .
igapa
THE BOARD OF WATER WORKS OF PUEBLO, COLORADO
By:
A.
,---• . •
•
o be, President
CITY OF AURORA, COLORADO
By:
Paul E. Tauer, Mayor
