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HomeMy WebLinkAbout7582RESOLUTION NO. 7582 A RESOLUTION APPROVING A WATER EXCHANGE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND THE BOARD OF WATER WORKS OF PUEBLO, COLORADO RELATING TO THE EXCHANGE OF WATER BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1, The Water Exchange Agreement dated March 27, 1995 between Pueblo, a Municipal Corporation and The Board of Water Works of Pueblo, Colorado, relating to the exchange of water, 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 and deliver the Water Exchange Agreement and related documents including the certificate for 4.0 shares of the West Pueblo Ditch in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED March 27, 1995 By JOHN CALIFANO Councilperson ATTEST: 7APED: it Clerk President of the City Council HATER XZCRANM A�iREEMEET THIS EXCHANGE AGREEMENT entered into between the City of Pueblo, a Municipal Corporation, hereinafter called "City ", and The Board of Water Works of Pueblo, Colorado, hereinafter called the "Board"; WITNESSETH: WHEREAS, the Board owns shares of the West Pueblo Ditch which it desires to transfer to new uses and points of diversion; and WHEREAS, the City owns shares of the West Pueblo Ditch which it desires to transfer to the Board; and WHEREAS, certain City facilities would be best served by transmountain water or the return flows of transmountain water owned by the Board which would be suitable to City's.needs. NOW, THEREFORE: 1. WATER TO BE TRANSFERRED BY CITY The City will transfer to the Board 4.0 shares of the West Pueblo Ditch, and the yield and use of water represented thereby, including the yield and use of water derived from the winter water storage program operated by the Southeastern Colorado Water Conservancy District. The transfer of the 4.0 shares of the West Pueblo Ditch, and the yield and use of water represented thereby, including water produced by these shares in the winter water storage program will be in perpetuity. 2. WATER TO BE SUPPLIED BY BOARD TO CITY The Board will deliver in perpetuity from its supply, water to the City, PROVIDED 1 the water shall never be removed from the Arkansas River Basin, in the following amounts and subject to the following conditions: A. The water to be delivered by the Board will be transmountain water or other water reusable under Colorado law, including but not limited to return flows of transmountain water, which may include waters reusable by exchange. In any event, the legal nature of such water shall be that upon delivery to the City, it shall be totally consumable, and use by the City shall not be prohibited by law. B. The City will specify the point of delivery of water to be used by it, which will be a point on the Arkansas River mainstem downstream of Clear Creek Reservoir. The City shall provide appropriate and lawful means of diversion, including such measuring devices as appropriate administrative authorities require. If the Board's approval or cooperation is required by the City in the administration of diversions, the Board agrees to provide the same, at the cost of the City. It is presently believed that there are no legal or administrative proceedings required to accomplish deliveries as set forth herein, and no provision is therefore made for the same. C. The Board may make the actual delivery of water from the Board's storage water at Clear Creek Reservoir, Turquoise Reservoir, Twin Lakes Reservoir, Pueblo Reservoir, from direct flow transmountain water or from any other reservoir or place from which the Board may legally deliver water from storage or return flows or by exchange, with the sources of water to be at the option of the Board. At the option of the Board such sources may 2 be changed from time to time to suit the operational convenience of the Board. The City will give to the Board at least seventy - two (72) hours notice of each requested delivery. The Board will not be required to deliver at a rate higher than twenty -five (25) c.f.s. or at a rate less than five (5) c.f.s. In order to serve the requirements of the City, which are assumed to be relatively small quantities delivered daily and throughout each day of the year, the Board will deliver at rates lower than five (5) c.f.s. subject however to the following: (1) Any such lower rate of delivery will have the approval of the division engineer; (2) Any such delivery from Board supplies at Turquoise, Twin Lakes or Pueblo Reservoir shall have the approval of the agency which operates or governs discharges from these reservoirs; (3) The Board shall not be required to expend any funds for the alteration of its outlet gates or its outlet measuring devices for the purpose of making such low rate deliveries. D. The Board will deliver a quantity of water in response to the City's request which will not exceed 6.4 acre feet per annum (calculated on a calendar Yea basis). E. Water delivered by the Board from storage reservoir, river flows or by exchange will be delivered "as is" without any requirement as to particular quality or any 3 representation or warranties by the Board as to particular quality. F. Once delivered to the City's facility, all rights to re -use shall belong to the City and the Board shall have no further re -use rights. G. Without prior written permission of the Board, the City cannot accumulate or hold in Board storage facilities the 6.4 acre feet per annum of water to be delivered by the Board hereunder. In other words, within each calendar year, the City must use its annual entitlement to such water or lose it. 3. CHANGE PROCEEDING The Board may file and the City hereby consents to the Board filing a change proceeding in Water Court to change the points of diversion and the uses of the water represented by the shares of the West Pueblo Ditch transferred herein to the Board to such points of diversion and such uses as selected by the Board. The Board shall determine the nature of the change proceeding and determine the conduct of the proceeding. 4. CONSENT gEQUIgZQ FROM BOARD This Agreement contemplates that the City shall have full flexibility in the use of the transmountain water to be provided it by the Board. In the event that the City determines that its uses of such water require court approval under a plan for augmentation, or other water court proceeding, the City shall first obtain the consent of the Board prior to any application being filed with the court. The Board shall not unreasonably withhold its consent; and shall be obliged, in the event that consent is withheld, to specify its objections in writing and to describe with particularity what changes in the 4 proposed plan of augmentation or change proceeding would necessarily be made, and what rights of the Hoard could be utilized in order for the Hoard's consent to be forthcoming. By this procedure, the parties intend to secure to the City the full right to use of the transmountain water promised to the City, in the quantity promised to the City, and at the location(s) selected by the City (delivered on the Arkansas mainstem downgradient of Clear Creek Reservoir or at other mutually acceptable places for use in the Arkansas River Basin), while simultaneously securing to the Board the ability to assure that its underlying right, title and interest in the transmountain water is not impaired, or collaterally attacked, and that the Board is afforded a full opportunity to protect its water resources and its full entitlements therein. 5. DISSOWTION The City hereby grants to the Board its proxy to vote all shares of stock held in the West Pueblo Ditch Company for dissolution of the corporation and winding up the corporation's affairs. Said proxy shall be irrevocable. The Board agrees that any dissolution shall be conducted without cost to the City in accordance with the applicable corporate laws of Colorado, and include the following terms: A. Provision for payment of all liabilities of the corporation prior to dissolution. To the extent required, assessments on the outstanding stock of the corporation therefor shall be levied; 5 B. Provision for alternate water supplies, for the outstanding shareholders other than the City and the Board, and retirement as treasury stock of said outstanding shares; C. Distribution in kind of legal title to interests in the priorities decreed to the West Pueblo Ditch to the Board and any other minority shareholders according to their respective pro rata stock ownership; D. Distribution in kind of the Board of all corporate records of any kind. In order to accomplish said dissolution and winding up, the City and the Board mutually promise full cooperation and aid to achieve the objects of this paragraph. 6. GENERAL The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution and enforcement of this contract. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this a>0 , day of �1�4�cc� , 1995. APPROVED AS TO FORM: PUEB , A Municipal Corporation City Att a President of City Council ATTEST: Ci y Clerk L BOARD OF WATER WORKS OF PUEBLO, COLORADO ATTEST: BY BY \ Alan C. Aamel Executive Director Federal I.D. # 84- 600 -2503