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Home My WebLink About11157 RESOLUTION NO. 11157 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, THE BOARD OF WATER WORKS OF PUEBLO AND THE LOWER ARKANSAS VALLEY WATER CONSERVANCY DISTRICT, CONCERNING THE PROVISION OF WATER FOR THE LAKE MINNEQUA PROJECT AND AUTHORIZING THE PRESIDENT =- OF THE COUNCIL TO EXECUTE SAME 3 BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: am :t,; o SECTION 1. mF -ts � The intergovemmental agreement between the City of Pueblo, a Municipal ,_?.a �mN� Corporation, the Board of Water Works of Pueblo, and the Lower Arkansas Valley ;,°Y:TE inEt Water Conservancy District, concerning the provision of water for the Lake Minnequa W N 0 L - project, substantially in the form as attached hereto with such minor changes as the N - - ®1 �vv President of City Council and the City Attorney shall approve, is hereby approved. 1 ::: a SECTION 2. The President of the City Council is hereby authorized to execute and deliver the intergovernmental agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest same. SECTION 3. This Resolution shall become effective on and after the date upon which the City of Pueblo acquires fee simple title to the real property known as Lake Minnequa from its current owner. INTRODUCED: November 26, 2007 R 1( BY Randy Thurston COUNCIL PERSON rS 4,1 R APPROVED. ,,,�� fff ��JJJ � � '' PR OF CITY COUNCIL ATTESTED BY: wTY CLERK Re5o. 1115 - 1 0 Background Paper for Proposed Resolution AGENDA ITEM # 2(7 DATE: NOVEMBER 26, 2007 DEPARTMENT: JERRY M. PACHECO, ASSISTANT CITY MANAGER FOR COMMUNITY DEVELOPMENT TITLE A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, THE BOARD OF WATER WORKS OF PUEBLO AND THE LOWER ARKANSAS VALLEY WATER CONSERVANCY DISTRICT, CONCERNING THE PROVISION OF WATER FOR THE LAKE MINNEQUA PROJECT AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME I>K Should the City Council approve an intergovernmental agreement between the City of Pueblo, the Board of Water Works of Pueblo and the Lower Arkansas Valley Water Conservancy District concerning the provision of water for the Lake Minnequa project? Approval of Resolution BACKGROUND The City is currently negotiating for the acquisition of real property known as Lake Minnequa for development of a multiple -use project. The ability to provide a permanent pool of water in Lake Minnequa, provide water annually to offset the evaporative loss of water and to have freshening water passed through the lake are a necessity for the project to be developed as described to Great Outdoors Colorado ( "GOCO ") in the City's grant application, as well as for the ongoing sustainable operation of the project. Assuming the acquisition of the real property occurs, the parties to this intergovernmental agreement are cooperating to help the City of Pueblo improve Lake Minnequa for multiple public purposes including open space, stormwater management, recreation and piscatorial uses by supplying water to Lake Minnequa. The commitments from each participant in the intergovernmental agreement are as follows: The Pueblo Board of Water Works is committing to provide up to 450 acre -feet of water annually to offset the evaporative loss of water from Minnequa Lake as provided for within the IGA. The water being provided by the BOWW for the Minnequa Lake project is already owned by the BOWW. The BOWW will file for and adjudicate the necessary water rights and changes of water rights to implement the water rights plan, including engineering, attorney's fees and costs. While the adjudication is pending, the BOWW will seek administrative approval from the State Engineer to implement the terms of this IGA as a substitute water supply plan. The Lower Arkansas Valley Water Conservancy District is committing to annually supply 250 acre -feet or 100% of the water available from the District's existing combined interests in the Larkspur Ditch and the Twin Lakes Reservoir Company, whichever is less. The District's water will provide freshening water which will enhance the piscatorial uses and improve the water quality of the lake. The City of Pueblo intends to improve Lake Minnequa and the surrounding area for multiple public purposes, including open space, stormwater management, recreation, and piscatorial uses. As an important part of the project, the City intends to divert stormwater into Lake Minnequa and to use the lake as a component of the City's stormwater management plan for the drainage basin in which the lake is located. This Resolution will be effective only upon acquisition of the real property; nevertheless, it is presented at this time in order to demonstrate diligence of the City in moving forward with the project for purpose of pending grant commitments from GOCO. FINANCIAL IMPACT In order for City to proceed with the Project and meet requirements of state water law and the GOCO grant award, the City will need to have water annually provided for the operation the Lake Minnequa project. The water committed for the project by the BOWW is valued at $2.5 million dollars. In addition, the BOWW will be responsible for calling for and the actual delivery of the water made available by the LAVW from the Arkansas River to Lake Minnequa and back to the Arkansas River through a water carriage agreement entered into by the BOWW and CF &I Steel. Under a separate transaction not directly involved with this Resolution, the City of Pueblo would commit $150,000 of funds to match GOCO funds for the purchase of the Lake Minnequa property from its current owner and the Right -of- Way for the Lake Minnequa Feeder Ditch. Additionally $300,000 of City funding has been budgeted and appropriated through the City Stormwater Utility to assist in funding the lake improvements and modifications to increase the ability for the lake to serve stormwater purposes. The City's funding commitment, budgeting and appropriating funds for the Lake Minnequa project, was previously approved by City Council by Ordinance 7502 approved on August 14, 2006. 1798723 AGREE 03/11/2009 03:50:43 PM Page: 1 . 0 00 T1 31.00 Gilbert O rt of iz 6 Cler R 31/R ecor00 dD . e r, Pueblo County. Co I P113 14, :1 �►�� tifiti. WM, Ar*1 1111 INTERGOVERNMENTAL AGREEMENT Concerning the Development and Operation of Lake Minnequa Project This Intergovernmental Agreement ( "Agreement ") is entered into this 12 day of December, 2007 by and among the City of Pueblo, a Municipal Corporation ( "Pueblo "), the Board of Water Works of Pueblo ( "PBWW "), and the Lower Arkansas Valley Water Conservancy District ( "District "). Together these entities are referred to herein as the "Parties." RECITALS A. This Agreement is entered into pursuant to C.R.S. §§ 29 -1 -201 — 203. Each of the Parties is a political subdivision of the State of Colorado and government within the meaning of C.R.S. § 29 -1 -202. Pueblo is a home rule city organized and existing under and by virtue of Article XX of the Colorado Constitution. The PBWW is an independent board established by charter of Pueblo, which was adopted pursuant to Article XX of the Colorado Constitution. The District is a water conservancy district established under C.R.S. §§ 37 -45 -101 et seq. Each of the Parties represents that it is authorized to provide the functions, services or facilities which are the subject of this Agreement. B. This Agreement is also based on principles of comity and the desire for cooperation among the Parties. C. Pueblo intends to improve Lake Minnequa and the surrounding area for multiple public purposes, including open space, stormwater management, recreation, and piscatorial uses. D. Pueblo intends to divert stormwater into Lake Minnequa and to use the lake as a component of the City's stormwater management plan for the drainage basin in which the lake is located. E. The PBWW and the District desire to help Pueblo improve Lake Minnequa for public use by supplying water to Lake Minnequa to enhance its use for open space, recreation, and piscatorial purposes. F. The Parties anticipate that the water to be supplied by the District will be delivered to, and allowed to flow through, Lake Minnequa to provide freshening flows to the lake, and then the District Water will return to the Arkansas River for beneficial use by the District. G. The PBWW intends to supply water to replace out -of- priority depletions associated with the surface evaporation from water stored in Lake Minnequa, and has entered into a Water Carriage Agreement with Rocky Mountain Steel Mills dated 12-29 pursuant to which the PBWW may use unused capacity in the Minnequa Canal to deliver water to Lake Minnequa (the "Water Carriage Agreement "). 1798723 AGREE 03/11/2009 03:50:43 PM Page: 2 of 6 R 31.00 D 0.00 T 31.00 Gilbert Ortiz Clerk/Recorder, Pueblo County Cc �t WAI 1 rtifi.I0.i# "1 1II1 AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants contained herein and other good and valuable consideration, the Parties agree as follows: 1. Commencing on December 29, 2008 the District shall make available annually, for delivery through Lake Minnequa, the lesser of 250 acre -feet or 100% of the water annually available, both legally and physically, from the District's existing interests in the Larkspur Ditch and the Twin Lakes Reservoir and Canal Company at the Minnequa Canal headgate, as described on Exhibit A. The water to be provided by the District is referred to herein as the "District Water," and will to be used to provide freshening flows to Lake Minnequa. The District Water shall be delivered to the headgate of the Minnequa Canal at the times, and in the amount, requested by the PBWW. The maximum rate of delivery of District Water shall not exceed 10 c.£ s. The delivery of the District Water shall be measured at the Minnequa Canal headgate and the District shall bear all transit losses incurred in the delivery of the District Water to Lake Minnequa and back to the Arkansas River. The District Water will flow through Lake Minnequa without being stored therein. The District Water shall incur no evaporative losses when flowing through Lake Minnequa. The District shall be responsible for the use and disposition of the District Water upon its return to the Arkansas River. To the extent there exists a right to make successive use of the District Water, this Agreement does not constitute a release of the District Water from the dominion of the District, and the District retains all rights of use and successive use of the District Water upon its release from Lake Minnequa for delivery to the Arkansas River. The Parties agree that no liability shall attach to the District hereunder on the account of the quantity of water available for use hereunder due to circumstances beyond the control of the District. 2. PBWW shall be responsible for diverting the District Water at the Minnequa Canal and delivering it through the Minnequa Canal to and through Lake Minnequa. PBWW and Pueblo will cooperate in the scheduling of deliveries of the District Water to Lake Minnequa. 3. The PBWW shall be responsible for supplying water to replace out -of- priority depletions to the Arkansas River caused by evaporation from up to 164 surface acres of water stored in Lake Minnequa. The amount of replacement water the PBWW must provide annually shall not exceed 450 acre -feet without the prior agreement of the PBWW. The PBWW, subject to the limitations of Section 15 -2 of the Charter, may reduce deliveries of replacement water to Lake Minnequa, and may require Pueblo to reduce the free water surface of Lake Minnequa when emergency situations arise where there is a necessity to limit the use of water for customers of the PBWW. The Parties agree that (a) the necessity for such limitation is a fact to be determined by the PBWW in the exercise of its reasonable discretion from time to time, as the occasion may require; and (b) the PBWW may adopt, in the situation of shortage, such reasonable restrictions on uses or priorities for curtailment of use as may be necessary to adapt to such emergency conditions or shortage. The Parties agree that no liability shall attach to the PBWW hereunder on the account of the necessity for reducing deliveries of replacement water to Lake Minnequa or requiring Pueblo to reduce the free water surface of Lake Minnequa in such circumstances or at such other times and under such other circumstances as the parties may mutually agree. • 1798723 AGREE 03/11/2009 03:50:43 PM • Page: 3 of 6 R 31.00 D 0.00 T 31.00 • Gilbert Ortiz Clerk /Recorder. Pueblo County Co ®ill y'►� � I► Nei 1'10, WIVOCI N14,4 ii ill 4. The PBWW shall be responsible for filing for and adjudicating the necessary water rights and plan for augmentation to replace evaporation losses from up to 164 surface acres of water stored in Lake Minnequa, and shall pay all engineering fees, attorney's fees and other costs incurred in completing such adjudications. Pueblo and the District agree to cooperate in any such proceeding and, Pueblo, at its option, may participate as a co- applicant. While the adjudications are pending, the PBWW shall seek administrative approval of a temporary substitute water supply plan from the State Engineer in order to implement replacement of evaporative losses from the water surface of Lake Minnequa. Pueblo and the District agree to cooperate in such proceeding and Pueblo, at its option, may participate as a co- applicant. 5. The PBWW shall be responsible for obtaining any administrative approvals required to use District's Larkspur Ditch water right in the manner contemplated by this Agreement. The District shall be responsible for timely providing the engineering information on the historical use of the Larkspur Ditch necessary for any such administrative approvals. The District shall also be responsible for obtaining any change of the District's Larkspur Ditch water right necessary to make the Larkspur Ditch water right available for use in the manner contemplated herein. The PBWW and Pueblo agree to cooperate in any such proceeding brought by the District. In any such change of water rights proceeding, each of the Parties shall bear its own attorney fees, engineering fees, and any other costs. 6. If the District should "sunset" or be dissolved in accordance with law, then prior to its dissolution the District will transfer and convey to the PBWW either (1) such of its interests in the District Water as are necessary to meet the purposes of this Agreement, or (2) an equivalent quantity of water from another source acceptable to Pueblo and the PBWW to ensure the operation of this Agreement in perpetuity. 7. If, for reasons beyond its reasonable control, the PBWW is no longer able to use the Minnequa Canal for delivery of water to Lake Minnequa, the Parties shall meet and endeavor in good faith to develop alternate means for delivery of water to Lake Minnequa, and agree to reasonably amend this Agreement as needed to continue delivery of water by such alternate means. In the event no alternate means are reasonably feasible, the PBWW obligations under this Agreement will terminate if it is no longer able to use the Minnequa Canal for delivery of water to Lake Minnequa. If the Minnequa Canal is temporarily unavailable to carry water to Lake Minnequa, the Board will be excused from its obligation to deliver water to Lake Minnequa during the time the Canal is temporarily unavailable. 8. If, for reasons beyond its reasonable control, the District is no longer able to use District Water for freshening flows for Lake Minnequa, the Parties shall meet and endeavor in good faith to develop alternate sources of freshening flows for Lake Minnequa, and agree to reasonably amend this Agreement as needed to continue freshening flows of water from such alternate sources. In the event no alternate sources are reasonably feasible, the District's obligations under this Agreement will terminate if the District is no longer able to use District Water for freshening flows for Lake Minnequa. If Minnequa Canal is temporarily unavailable to carry District Water to Lake Minnequa, the District will be excused from its 1798723 AGREE 03/11/2009 03:50:43 PM Page: 4 of 6 R 31.00 D 0.00 T 31.00 Gilbert Ortiz Clerk /Recorder Pueblo County Co obligation to provide water to Lake Minnequa during the time the Minnequa Canal is temporarily unavailable. 9. Nothing in this Agreement shall be construed as a waiver of any immunity from damages or limitation on damages available to the Parties including sovereign immunity and any limitations on liability provided in the Colorado Governmental Immunity Act, C.R.S. § 24- 10 -101 et seq (2007), including any future amendment thereto. 10. All notices and other communications that are required or permitted to be given to the Parties under this Agreement shall be sufficient in all respects if given in writing and delivered in person, by overnight courier, or by certified mail, postage prepaid, return receipt requested, to the receiving party at the following address: If to LAVWCD, to: General Manager Lower Arkansas Valley Water Conservancy District 801 Swink Avenue Rocky Ford, Colorado 81067 Telephone: 719- 254 -5115 If to the PBWW, to: Executive Director Board of Water Works of Pueblo, Colorado P.O. Box 400 Pueblo, CO 81002 Telephone: (719) 584 -0250 If to City: to Pueblo City Manager 1 City Hall Place Pueblo, CO 81002 Telephone: (719) 553 -2655 11. Any obligation for water delivery hereunder shall be subject to force majeure, including, without limitation, the following, and any other matters similar or dissimilar thereto if beyond the control of such party: damage to or destruction of conveyance facilities, senior water calls, administration of water rights, flood, drought, fire, acts of God, unavoidable casualties, labor disputes or govemmental regulations. Notice of force majeure shall be given as soon as practicable after the force majeure event. 12. This Agreement is intended to describe the rights and responsibilities of and between the Parties and is not intended to, and shall not be deemed to confer any rights upon any persons or entities not named as parties, nor to limit in any ways the powers and responsibilities of the Parties or any other entity not a party hereto. 13. This Agreement shall be governed under and controlled by the laws of the State of Colorado. Venue for any lawsuit between Parties concerning this Agreement shall be in the District Court for Pueblo County. 1798723 AGREE 03/11/2009 03:50:43 PM P age: 50 o 6 R 3 De 0. 00 T 3 1 . 00 G ilbert rtiz C lerk /Recordr, Pueblo C ounty ; Co ®III 1) I �V�O�� ' � �I �� M la 1111 14. This Agreement constitutes the entire agreement of the Parties concerning the subject matter and supersedes all prior representations, negotiations or other communications related thereto. This Agreement may be amended only in writing, which writing must be signed by all parties in order to be effective. 15. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors or assigns. 16. Each party hereto represents that its representative signing below is authorized to execute this Agreement on its behalf. 17. This Agreement shall be recorded by Pueblo in the records of the office of Clerk and Recorder of Pueblo County. 18. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the year and day first above written. CITY OF PUEBLO, BOARD OF WATER WORKS a Municipal Corporation By , By Presid' t: of / - City Council President of a oard ATTEST : - City rk Approved as to form: City Atto LOWER ARKANSAS VALLEY CONSERVANCY DISTRICT By Bo; C rman of the Bo Exhibit A. "District Water" of the Lower Arkansas Valley Water Conservancy District 1. 88.34 shares of capital stock in the Twin Lakes Reservoir Company, Stock Certificates Nos. 8492, 8497, 8468, and 8531. 2. Purchase Agreement dated March 30, 2004 with Larkspur, Inc. for Priority No. 317, Ditch Priority No. 266, in Division 4 of Water District 28, for 10 c.f.s. absolute and 100 c.f.s. conditional, and with a priority date of June 8, 1931, as decreed by that Water Court Adjudication dated April 19, 1943, District Court, Gunnison County, Colorado, together with those structures known as the Larkspur Ditch Nos. 1 and 2, the Harry Creek Extension to the Larkspur Ditch No. 2, and the Agate Creek Extension to the Larkspur Ditch No. 2. Page: 6 of 31100 0.00 T 31.00 Gilbert Ortiz Clerk /Recorder; Pueblo County Co 11111 Ail M . ! . 1 111