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HomeMy WebLinkAbout07869ORDINANCE NO. 7869 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE PINE DRIVE WATER DISTRICT CONCERNING PROVISION OF WATER FOR SPECIFIED FACILITIES AT PUEBLO MOUNTAIN PARK, AND APPROPRIATING FUNDS THEREFOR BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Intergovernmental Agreement by and between the Pine Drive Water District and Pueblo, a Municipal Corporation, dated August 25, 2008, concerning the provision of water for specified facilities at Pueblo Mountain Park (the "Agreement "), a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2_ The President of the City Council is authorized to execute the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3 Funds in the amount of $40,000 are hereby authorized to be transferred from unexpended general fund reserves and are budgeted and appropriated to meet the City's capital expenditures and fees required to be paid under the Agreement. SECTION 4_ This Ordinance shall become effective upon final passage and approval. INTRODUCED Auaust 11. 2008 BY Vera Ortegon Councilperson APPROVE �. A STi D lay, � CLERK PASSED AND APPROVED: August 25, 2008 * - 7 8 ro y Background Paper for Proposed ORDINANCE AGENDA ITEM # 3 DATE: August 11, 2008 DEPARTMENT: City Manager and Law Department TITLE AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE PINE DRIVE WATER DISTRICT CONCERNING PROVISION OF WATER FOR SPECIFIED FACILITIES AT PUEBLO MOUNTAIN PARK, AND APPROPRIATING FUNDS THEREFOR ISSUE Does the City wish to enter into an agreement with the Pine Drive Water District to provide water services to the Horseshoe Lodge and Pavilion at Pueblo Mountain Park? RECOMMENDATION Staff recommends approval of the ordinance. BACKGROUND Pueblo Mountain Park does not have a water supply at times, including during the fall and winter months when the Park's water intake at South Creek goes dry. The Mountain Park Environmental Center(the "Center "), which managesthe Horseshoe Lodge and Pavilion under a management agreement with the City, desires to operate those facilities during the fall and winter months and would like to have water service during that period. The management agreement between the City and Center provides that the Center may use the water service at the Park in its present condition, "as -is," and provides that the City has no obligation to provide any substitute or additional water supply. The Center has requested, and Council has directed staff to pursue, an agreement with the Pine Drive Water District ( "District ") to obtain District water service. The Agreement before Council is the result of discussions between staff and District representatives. Under the Agreement, District will provide water service to the Horseshoe Lodge and Pavilion as extraterritorial use, subject to (a) City purchasing a water tap from the District for $15,000, (b) City making a one -time payment of $5,000 to defer District's technical and legal expenses, (c) City designing and connecting to District's main at City's expense pursuant to plans to be approved by District, and (d) City making monthly payments for special water service at the current specified rates and in the future at rates established from time to time by the District. FINANCIAL IMPACT Initial capital and service costs are estimated to be less than $40,000. Thereafter, routine annual expenses are estimated to not exceed $2,500 per year. -2- INTERGOVERNMENTAL AGREEMENT BY AND BETWEEN THE PINE DRIVE WATER DISTRICT AND THE CITY OF PUEBLO THIS INTERGOVERNMENTAL AGREEMENT ( "Agreement ") is entered into this 25th day of August, 2008 by and between the Pine Drive Water District (the "District ") and Pueblo, a Municipal Corporation ( "City" or "Pueblo "). Together, these parties maybe referred to herein as the "Parties." RECITALS A. This Agreement is entered into pursuant to C.R.S. §29 -1 -201 through 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. District is a water district originally organized under C.R. S. §32- 4 -101, et seq., with all of the powers and authority granted to it under the Special District Act, C.R. S. §32 -1 -101, et sue., including the authority to provide extraterritorial services pursuant to C.R.S. §32- 1- 1001(1)(k). B. This Agreement is also based on principles of comity and the desire for cooperation between the Parties. C. Pueblo owns, maintains and operates Pueblo Mountain Park ( "Park "), consisting of approximately 608 acres. The Park is open to the public and serves, without discrimination, the recreational needs of both residents of the City and persons residing in the vicinity of the Park, including residents of the District. D. Pueblo desires to secure improved water service to the buildings known as Horseshoe Lodge and the Pavilion located within the Park by connecting those facilities to District's water system. E. District is willing to provide extraterritorial water service to the Horseshoe Lodge and Pavilion at the Park on the terms and conditions set forth in this Agreement, which the Parties believe serves the public interest without burdening District's residents and water system users. 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. District agrees to grant to City a water tap under the terms and conditions set forth herein. The City shall pay an initial tap fee of $15,000.00. Additionally, City agrees to make a one- time non - refundable payment of $5,000.00 to District to reimburse District for a portion of its costs and expenses associated within negotiation and implementation of this Agreement. Both the tap fee and one -time payment will be paid by City within thirty (30) days after execution and approval ofthis Agreement by both Parties. 2. District agrees that, after payment by City of the fees specified in Section 1 of this Agreement, pursuant to the District's authority under §32- 1- 1001(1)(k), C.R.S., it will authorize and provide extraterritorial water service to the Park's Horseshoe Lodge and Pavilion via the water tap. Connection to the District's system and service shall be in accordance with the terms of this Agreement and the District's Rules and Regulations as same may be amended from time to time. 3. City shall be permitted to connect a single 1 -1/2" tap to the District's 4" main located north - northeast of the Horseshoe Lodge with a nominal 1" water meter. City's service line from the meter to the Lodge and Pavilion shall be 1 -1/2" nominal diameter. Prior to undertaking physical connection, plans therefore shall be submitted to District's Manager for approval. All costs for design and installation of the tap, meter and service lines shall be borne by City. 4. (a) From and after the date of connection to District's system, City shall pay monthly water service charges at District's "Special Use Category, Double Use" scheduled rate, plus an initial Equitable Monthly Payment ( "EMP ") of $60.00. Thereafter, for all calendar years after 2008, City shall pay the adjusted monthly water service charges adopted and amended from time to time by District's Board as Schedule B to the District's Rules and Regulations, plus the ENV, adjusted annually as provided below. (b) Commencing January 15, 2010, and on January 15 of each year thereafter, the EMP shall be adjusted by the percentage change in the total property tax revenue received by the District from the Treasurer of Pueblo County for District imposed ad valorem taxes during the most recent twelve (12) month period from the total property tax revenue received within the immediately preceding twelve(12) month period, rounded to the nearest cent. District shall promptly notify City of each annual adjustment in the END and, upon request of City, provide the information upon which the adjustment was calculated. The revised EMT shall thereafter apply until the next annual adjustment. Should the property tax received by the District decrease in any year, there shall be no change in the EMT based thereon. [Remainder of page intentionally left blank] —2— (c) The rate schedule for 2008 is as follows: In the event the meter for the Horseshoe Lodge and the Pavilion reads less than 6,000 gallons usage in any month, City will pay the Double Use scheduled amount for 0 - 6,000 gallons usage plus the equitable monthly payment of $60.00. 5. Use of District water at the Horseshoe Lodge and Pavilion shall be limited to domestic use and fire protection; District water shall not be used for lawn irrigation or agriculture within the Park. 6. District shall have the authority to temporarily limit the use and amount of water supplied through the tap granted to the City as provided in the District's Rules and Regulations during times of drought, or in the event that the District reasonably determines, after notice and an opportunity to be heard is afforded to the City, that supplying water through the tap granted to the City would materially and adversely affect the water supply to other water customers of the District which are within the District boundaries. 7. City's Park property is and shall remain exempt from all ad valorem taxes. In the event District assesses special assessment on users located within the District, City shall be exempt therefrom, but shall be contractually obligated hereunder to make payment to the District of a payment -in -lieu of the special assessment in an equitable amount comparable to the assessments to users located within the District. 8. City's use of the District's water shall be subject to District's Rules and Regulations, as amended from time to time, except to the extent inconsistent with the terms of this Agreement. —3— WATER RATE DOUBLE USE SCHEDULE 0 - 6,000 GALLONS USAGE USAGE ABOVE 6,000 GALLONS ADDITIONAL COSTS* 2008 $55.00 per double use 6,001 - 7,000 $2.50 2009 $56.00 per double use 7,001 - 8,000 $2.50 2010 $57.00 per double use 8,001-9000 $2.50 2011 $58.00 per double use 9,001 - 10,000 $2.50 2012 $59.00 per double use 10,001 - $15.00 per each 1,000 gallons 2013 $60.00 per double use *Example of usage for one month in 2008 of 9,400 gallons would be $55.00 + 10.00 = $65.00 + Equitable Monthly Payment of $60.00, for a total of $125.00. In the event the meter for the Horseshoe Lodge and the Pavilion reads less than 6,000 gallons usage in any month, City will pay the Double Use scheduled amount for 0 - 6,000 gallons usage plus the equitable monthly payment of $60.00. 5. Use of District water at the Horseshoe Lodge and Pavilion shall be limited to domestic use and fire protection; District water shall not be used for lawn irrigation or agriculture within the Park. 6. District shall have the authority to temporarily limit the use and amount of water supplied through the tap granted to the City as provided in the District's Rules and Regulations during times of drought, or in the event that the District reasonably determines, after notice and an opportunity to be heard is afforded to the City, that supplying water through the tap granted to the City would materially and adversely affect the water supply to other water customers of the District which are within the District boundaries. 7. City's Park property is and shall remain exempt from all ad valorem taxes. In the event District assesses special assessment on users located within the District, City shall be exempt therefrom, but shall be contractually obligated hereunder to make payment to the District of a payment -in -lieu of the special assessment in an equitable amount comparable to the assessments to users located within the District. 8. City's use of the District's water shall be subject to District's Rules and Regulations, as amended from time to time, except to the extent inconsistent with the terms of this Agreement. —3— 9. Upon connection to the District's system, and for so long as the Lodge and Pavilion are served by District water, the plumbing systems of the Lodge and Pavilion shall be disconnected from the Park's existing water system; provided, however, that the Parties may modify this requirement provided (a) the District's Board consents thereto, which consent may be withheld in the Board's sole and absolute discretion, and (b) service for the Park's existing system may be provided without risk of contamination to District's system. 10. (a) City has filed an Application for Surface Water Rights and Approval of Plan for Augmentation, Including Exchange in the District Court, Water Division No. 2, Case No. 2007 CW 126 ( "Water Case "). In the event City proceeds with said Water Case, District agrees to stipulate to a decree in the Water Case granting the water rights sought, provided that it contain a limitation upon diversion from South Creek to no more than 45 gallons per minute in order to prevent injury to District. District also agrees that, at the request of City, it will support an application by Pueblo to the State Water Engineer to approve a Substitute Supply Plan applicable until the Water Court enters a decree in the Water Case. City may, in City's sole discretion, dismiss or withdraw the Water Case at any time prior to decree. (b) In the event City acquires two shares in Mountain View Water and Ditch, Inc., and is able to use water from the Hollyrood Wells described in the Water Case for City's augmentation purposes, as set forth in the Water Case, City agrees to make available to District, for District's use, up to one (1) acre foot of water if and when available at the well -heads of the Hollyrood Wells to augment any out -of- priority diversions by District from South Creek and any wells in South Creek alluvium. 11. The water tap granted to the City under this Agreement shall not be transferred nor assigned by City without the written consent of District; provided, however, that nothing in this section is intended to limit the use or management of the Park, the Horseshoe Lodge or Pavilion by any lessee of City, or any operator or manager functioning pursuant to management agreement with City, including but not limited to the Mountain Park Environmental Center. Any such lessee, operator or manager may use the District water within the Horseshoe Lodge and Pavilion as permitted by this Agreement, but shall not change the use thereof without approval of the District. Should the City enter into any management agreement, lease, operation agreement or any other contract allowing the management of the Park, Horseshoe Lodge, or Pavilion by a third party, the City shall remain liable for and responsible for all of the terms and conditions of this Agreement including payment of any fees as set forth herein. Any transfer or assignment of the tap granted to the City by the District except as set forth in this Section shall be void and shall be grounds for the District to terminate the tap and the City's rights under this Agreement. In the event the City should discontinue use of water delivered through the tap granted to the City for twelve (12) consecutive months or longer, the District may terminate the tap for non -use, and the City's rights under this Agreement. 12. 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. 13. 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 District, to: Pine Drive Water District P. O. Box 35 Beulah, CO 80123 -0035 (719) 485 -3434 If to City, to: Pueblo City Manager 1 City Hall Place Pueblo, CO 81002 (719) 553 -2655 14. Any obligation for water delivery hereunder, by either Party, 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 governmental regulations. Notice of force majeure shall be given as soon as practicable after the force majeure event. 15. 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. 16. 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. 17. 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. 18. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, —5— their successors or assigns, as limited by Section 11 above 19. Each party hereto represents that its representative signing below is authorized to execute this Agreement on its behalf. 20. 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, a Municipal Corp ion By President of the.City Council \\ =ATTEST: mil to form: City Attorney ' - PINE DRIVE WATER DISTRICTT By v esesidneen`t of 0 Boardp�� By Secretary ' `t ��r