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HomeMy WebLinkAboutORDINANCE 15-02ci o ORDINANCE NO.15-02 AN ORDINANCE CONSENTING TO THE TRANSFER OF CERTAIN WINDY GAP UNITS BY SUPERIOR METROPOLITAN DISTRICT NO.1 AND AUTHORIZING AND DIRECTING THE MAYOR AND TOWN CLERK OF THE TOWN OF ESTES PARK TO EXECUTE AND FILE,ON BEHALF OF THE TOWN OF ESTES PARK,COLORADO,SUCH DOCUMENTS AS ARE NECESSARY TO CONSENT TO THE TRANSFER OF 9 UNITS OF WATER OF THE MUNICIPAL SUBDISTRICT,NORTHERN COLORADO WATER CONSERVANCY DISTRICT NOW,THEREFORE,BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK,COLORADO. Section 1.The Board of Trustees of the Town of Estes Park,Colorado, hereby consents to the transfer of three (3)Units of Windy Gap water from Superior Metropolitan District No.ito the Town of Erie and six (6)Units of Windy Gap water from Superior Metropolitan District No.I to the City of Louisville.The nine (9)Units being transferred were originally transferred to Superior Metropolitan District No.I from the Town of Estes Park,Colorado pursuant to Ordinance No.4-88. Section 2.The Mayor and Town Clerk of the Town of Estes Park,Colorado, be and hereby are authorized and directed to execute and file,on behalf of the Town, such other and further documents as are required by the Municipal Subdistrict,Northern Colorado Water Conservancy District to evidence the consent of the Town of Estes Park to the transfer of the nine (9)Units of Subdistrict Windy Gap Water. Section 3.That the Mayor and Town Clerk of the Town of Estes Park, Colorado,be and hereby are authorized and directed to execute the Petitions for Water Allotment Contracts of the Town of Erie and the City of Louisville.The copies of the Petitions for Water Allotment contracts for Erie and Louisville are attached hereto as Exhibits “A”and “B”. Section 4.The Town of Estes Park hereby recognizes and agrees that its obligation to repay its portion of the bonded indebtedness of the Subdistrict relating to the Windy Gap project does now and will in the future continue to exist;that said obligations will not be discharged until the repayment of all bonded indebtedness incurred by the Subdistrict as of the date hereof and that the Subdistrict may levy a special assessment pursuant to C.R.S.37-45-123 on lands within the Town pursuant to the terms of the Water Allotment Contract to the Town of Estes Park dated July ii,1975,in the event that Subdistrict does not,for any reason,including,but not limited to,the insolvency or bankruptcy of M.D.C.Land Corporation,the Superior Metropolitan District Nos.1,2,or 3,(with regard to all thirty-five (35)units originally transferred pursuant to Ordinance 4- 0 0 0 0 88),the Town of Erie (with regard to three (3)of the original thirty-five (35)Units transferred to the Superior Metropolitan District No.1),or the City of Louisville (with regard to the six (6)of the original thirty-five (35)Units transferred to the Superior Metropolitan District No 1),receive the annual payments required by the Water Allotment contracts of the Town of Erie and/or the City of Louisville,or in the event that the Water Allotment contracts of the Town of Erie and/or the City of Louisville are terminated by the Subdistrict according to their terms. Section 5.The adoption of this Ordinance,and the execution of the documents authorized herein,shall not revoke or repeal Ordinance No.10-75 of the Town of Estes Park,as adopted on May 13,1975,nor Ordinance No.4-88 of the Town of Estes Park,as adopted on March 31,1988. Section 6.The Board of Trustees of the Town of Estes Park,Colorado, herewith finds,determines and designates that this Ordinance is necessary for the immediate preservation of the public peace,health and safety in order to immediately authorize the transfer of the Windy Gap water,and since it is the opinion of the Board of Trustees that an emergency exists,this Ordinance shall take effect upon its adoption. PASSED BY THE BOARD OF TRUSTEES AND SIGNED THIS _____ DAY OF Septemke.r ,2002. TOWN OF ESTES PARK,COLORADO )4Ayor ATTEST:C.” &ai acQikk Deputy Town Clerk I hereby certify that the above Ordinance was introduced and read at the meeting of the Board of Trustees on the 24111 day of September,2002,and published in a newspaper of general circulation in the Town of Estes Park,Colorado,on the day of c.g€ffrrflj7tr ,2002. TOWN OF ESTES PARK vawt /1SLQ1ITtJZOW .‘ Deputy Town Clerk 0 0 C 0 PETITION TO MUNICIPAL SUBDISTRICT NORTHERN COLORADO WATER CONSERVANCY DISTRICT FOR WATER ALLOTMENT CONTRACT The Town of Erie,Colorado,a Colorado municipal corporation,acting by and through the Erie Water Enterprise (hereinafter “Petitioner”),hereby petitions the Municipal Subdistrict,Northern Colorado Water Conservancy District,a political subdivision of the State of Colorado,and a body corporate with all the powers of a public or municipal corporation (hereinafter called “Subdistrict”)organized and existing by virtue of C.R.S.§37-45-101 et ag.,for an allotment contract pursuant to C.R.S.§37-45-123,for the beneficial use of water under and pursuant to the following terms and conditions: 1.Definitions.The following definitions shall apply: (a)“Acre-foot”shall mean 43,560 cubic-feet of water and any volume of water delivered by the Subdistrict will be computed on the assumption that a flow of one cubic-foot of water per second of time will equal two acre-feet in twenty-four hours. (b)“Board”shall mean the Board of Directors of the Subdistrict. (c)“Carriage Contract”shall mean that Amendatory Contract entered into on March 1, 1990,between the Subdistrict,the Northern Colorado Water Conservancy District,and the United States of America for the purpose of utilizing the unused capacity of the facilities of the Colorado-Big Thompson Reclamation Project for the carriage of water developed by the Subdistrict,and any subsequent amendments or successor contracts for the same purpose. (d)“Delivered Water”is that Subdistrict water 0 0 delivered to Petitioner for use by thePetitioner. (e)“Entity”shall mean any public corporation, person,mutual ditch company,water users’association or private corporation. (f)“Operating Agreement”shall mean an agreement required by the Subdistrict forprovisionofservicesthatmayberequested byPetitionerandwhichcanbeprovidedbytheSubdistrict.Said agreement may contain,but not be limited to,provisions relating to thequantity,location or time of water delivered pursuant to this Contract,provisions for the payment by Petitioner of costs associated with the construction,modification,operation, maintenance,repair or administration of new oradditionalfacilitieswhicharerequiredtodeliverwatertoPetitioneratprojectsystemdeliverypointsifsaidfacilitiesarenecessary to provide water to Petitioner in a manner whichwillnotimpairtheabilityoftheSubdis 0 0 trict to deliver water to other allottees of the Subdistrict,or provisions for the payment of costs which may arise from services to Petitioner not otherwise provided for under this Contract. (g)“Project water”shall mean all water that accrues to the use of the Northern Colorado Water Conservancy District or its allottees by reason of the Colorado-Big Thompson Reclamation Project. (h)“Subdistrict water”shall mean the quantity of water acquired and obtained by the Subdistrict from the development and construction of the Windy Gap Project pursuant to applicable state law,and which the Subdistrict introduces into the project system either directly or by exchange and which is deliverable to the Subdistrict through the project works. Ci)“Unit”shall mean 1/480th of the Subdistrict water supply annually made available for distribution by the Board. (j)“Water Year”shall mean the period from November 1 of one calendar year through October 31 of the next succeeding calendar year. (k)“Windy Gap Project”shall mean that project (including the acquisition and perfection of water rights)constructed by the Subdistrict for the diversion of waters from the Colorado River at or near its confluence with the Fraser River and Carriage of this Subdistrict water to the Eastern Slope for beneficial use pursuant to the terms of the Carriage Contract.For purposes of this Contract,said Project is defined as thosefacilitiesnecessarytodivert,pump,store, regulate,and introduce into the Colorado-Big Thompson Project that quantity of Subdistrict water which will produce an average deliverable quantity of water equal to approximately 48,600 acre-feet per water year under the water rights decreed to the Windy Gap Project and in accordance with all applicable agreements,court decrees and orders. 2.Quantity of Water.Petitioner petitions for 3 Units of 0 0 Subdistrict water for annual delivery commencing as of the date of the granting of this petition by the Board and for so long thereafter as Petitioner fully complies with all the terms,conditions andobligationshereinaftersetforth,but in no event for a term less than the period required for the payment of bonds or other fixed indebtedness incurred by theSubdistrictfortheWindyGapProjectduringanyperiodpriortotransferofapartorallofPetitioner’s allotment to an entity within theSubdistrict. 3.Use of Water.Petitioner agrees that any Subdistrict water allotted by the Board shall be for domestic,irrigation,municipal and industrial use within orthroughfacilitiesoruponlandsownedorservedbysaidPetitioner,provided,however,that Ci)alllands,facilities and service areas which receivebenefitfromtheallotment(whether water service isprovidedbydirectdelivery,by exchange or otherwise)shall be situated within the boundaries of theSubdistrict,and (ii)said water may be seasonallytransferredbyPetitionerforsuchuseswithin Northern Colorado Water Conservancy District orSubdistrictboundaries.Petitioner also agrees to Ci)account for,by the use of separate water meters,alldeliveriesofwatertousersthatwillreceiveSubdistrictwater;(ii)certify,prior to November 1 of each year,that it owns,leases or otherwisecontrolssufficientwaterfromsourcesotherthanSubdistrictwatertosupplywaterforthenextwateryeartoanyandallserviceareaslocatedoutsideoftheSubdistrictboundaries;and (iii)provide to theSubdistrict,on or before November 30 of each year,a complete accounting of the disposition and use of all water used by it during the previous water year.Petitioner shall not receive Subdistrict water inexcessofthequantityrequiredbythemetereduses of water which are within the Subdistrict boundaries. Nothing herein shall prevent the Petitioner fromreusingSubdistrictwater,by direct delivery, exchange or otherwise,provided that the first usethereofisforbenefitoflands,facilities andserviceareaswithintheboundariesoftheNorthern Colorado Water Conservancy District or Subdistrict or as otherwise provided by law and Subdistrict policy and regulations. 0 0 4.Delivery of Subdistrict Water.Pursuant to terms of the Carriage Contract,the introduction,storage, carriage and release of Subdistrict water into, through or from the Colorado-Big Thompson project system and the manner of delivery,measurement and accounting therefor shall be in accordance with procedures in use between the United States and Northern Colorado Water Conservancy District for the delivery of Project water or as such procedures are herein or may hereafter be modified by agreement of the parties.Deliveries of Subdistrict water to Subdistrict and its allottees shall be made by the United States and the Northern Colorado Water Conservancy District at project system delivery points.No part of Petitioner’s Subdistrict water shall be delivered to another entity without the written authorization of Petitioner. 5.Annual Charges.Petitioner agrees to pay the following annual charges: (a)Commencing in 2003 and annually thereafter an amount per Unit as allocated by this contract equal to 1/480th of the sum of (i)the annual charge required to pay the principal,interest and premium,if any,on bonds issued or other fixed indebtedness incurred by Subdistrict to finance the acquisition and construction of the Windy Gap Project;(ii)the annual costs, exclusive of those costs set forth in Paragraph (b)of this Article,incurred by Subdistrict in the administration,operation,maintenance, repair,and rehabilitation of Windy Gapfacilitiesandsuchotherannualcosts as may arise from and be attributable to the operation of windy Gap Project;(iii)an annual amount to establish and maintain a reserve equal to the maximum principal and interest due or to become due in the succeeding year on all outstanding bonds or other fixed indebtedness of the Subdistrict;(iv)such an annual amount,as the Board shall determine to be necessary,to establish and maintain an operating and maintenance reserve equal to eighteen months operating and maintenance costs;and (v)such other reserves as the Board shall determine are 0 0 necessary for operation,maintenance,renewal or replacement of Subdistrict facilities. (b)An amount per acre-f oot of Subdistrict water delivered to Petitioner,Said amount shall be due and payable annually and shall be the sum of (i) the annual per acre-foot carriage charge levied in accordance with the Carriage Contract;and (ii)an annual per acre-foot charge for the energy costs incurred in the operation of those Windy Gap Project facilities required to divert, pump,store or introduce such water into the Colorado-Big Thompson Project for carriage and delivery to the Subdistrict. 6.Estimated Demand and Delivery Schedule.On or before August 1 of each year,Petitioner shall provide Subdistrict with an estimated demand and delivery schedule,not to exceed the amount of Subdistrict water allotted herein,for its Subdistrict water for the following Water Year.This schedule shall contain the time,delivery points and quantities of water which Petitioner estimates it shall require.This schedule may be modified from time to time as the need warrants within the physical capabilities of the delivery system and subject to advance payment by thePetitionerofthechargesestablishedinArticle5(d) of the Carriage Contract. 7.Estimate Statement.Subdistrict shall furnishPetitionerwithanestimatedstatementofanticipated assessments required under Article 5(a)or 5(b) hereof,or both,on or before August 31 of each year, which statement shall be used by Petitioner for budgeting purposes for the following fiscal year. 8.Payment of Charges.On or before March 1 of each year,Subdistrict shall render a billing statement toPetitionerforpaymentofallchargesandcosts due under this contract,as based upon estimated demand for that year as provided in Article 6 hereof.The estimated assessment shall be based upon actual costs incurred during the previous Water Year,plus suchadditionalamountsreasonablyattributabletoinflation.Any credit from the previous Water Year or any additional charges from the previous Water Yearshallbeincludedinthebillingstatementrendered. 0 0 Petitioner shall pay the net charges shown on the billing statement of estimated assessments on or before April 1 after receipt of statement. 9.Security. (a)As security to the Subdistrict,the Petitioner agrees,to the extent permitted by law,to be bound by the provisions of C.R.S.§ 37-45-123,and that the foregoing covenant of annual payments will be met,to the extent permitted by law,from assessments levied by the Subdistrict pursuant to C.R.S.§37-45-123,or, at the option of Petitioner,such annual payments may be fully or partially met by appropriation of funds from such sources of revenue as may be legally available to said Petitioner for such purpose.Further,the Petitioner agrees to continue to make the annual payments,as defined in Article S of this contract,for those Units of Subdistrict water allotted to it and for which Petitioner is obligated by the adoption of a resolution which resolution expressly shall not be repealable until all bonded indebtedness of the Subdistrict incurred during any period prior to transfer of a part or all of Petitioner’s allotment is paid in full according to the terms of any bond indenture or other indenture issued by Subdistrict.This is not intended to create a General Obligation of Debt of the Petitioner. (b)As further security for the payment of the annual charges required by this allotment contract,Petitioner also agrees to provide the Superior Metropolitan District No.1 (“Superior”) and the Town of Estes Park (“Estes Park”)with an annual,irrevocable,standby letter of credit in the amount estimated to equal one year of annual charges under this allotment contract,whichletterofcreditshallberenewedonJune1 of each calendar year,or Petitioner shall deposit one year of such estimated annual charges into an escrow account,which shall be payable to the Subdistrict in the event of a failure of Petitioner to timely pay such annual charges. Superior and Estes Park hereby convey to Subdistrict the right to exercise their rights 0 0 under the letter of credit.Petitioner shall be required to maintain the letter of credit or escrow account until all bonded indebtedness of the Subdistrict incurred during any period prior to transfer of a part or all of Petitioner’s allotment is paid in full according to the terms of any bond indenture or other indenture issued by Subdistrict.If Petitioner,with approval of the Board,transfers all or part of its allotment to another entity within the Subdistrict,it shall be relieved of the requirement to maintain a letter of credit or escrow account to the extent that the transferee provides equivalentsubstitutesecurity. Cc)Petitioner,Superior and Estes Park agreethattheexistenceoforrelianceupontheletter of credit or escrow account does not affect or modify Petitioner’s obligations hereunder or theobligationsofSuperiororEstesParktoSubdistrictundertheWaterAllotmentContracts dated April 1,1988,and July 11,1975,respectively. 10.Default. (a)Notice of Non-Payment or Non-Renewal.If any payment of annual charges,as herein provided,is not made by the due date,or if the letter ofcreditorescrowaccountdescribedinparagraph (9)(b)above are not maintained or renewed as required therein,written notice thereof will be given by the Subdistrict to Petitioner at the following designated address: Town of EriedoTownAdministrator 645 Holbrook P.O.Box 750 Erie,Colorado 80516 or at such other address as is furnished toSubdistrictbythePetitioner,and to Superior at the following designated address: Public Works and Utilities 0 0• Town of Superior 124 E.Coal Creek Drive Superior,Colorado 80027 or at such other address as is furnished to Subdistrict by Superior,and to Estes Park at the following designated address: Town Administrator Town of Estes Park 170 MacGregor P.O.Box 1200 Estes Park,Colorado 80517 or at such other address as furnished to Subdistrict by Estes Park. (b)Default.Subdistrict may,in its sale discretion,declare Petitioner to be in default of this allotment contract if all annual payments due under this allotment contract are not made by or on behalf of Petitioner,or if the letter of credit or escrow account described in paragraph (9)(b)above are not maintained or renewed as required therein,within 15 days of the date of the Notice of Non-payment provided in accordance with Article 10(a)hereof.Subdistrict shall not be deemed to have waived or relinquished the right to declare a default by virtue of any delay in the declaration of such default after the expiration of the 15 day period provided for in this Article 10(b) Cc)Reversion.Upon the declaration of default by the Subdistrict,this allotment contract shall terminate,and Petitioner shall have no further right,title or interest in the 3 Units of Subdistrict water under this allotment contract except as is provided in Article 10(d)below.At the time of any such default if all bonds or other fixed indebtedness incurred by the Subdistrict for the Windy Gap Project during any period prior to transfer of a part of or all of Petitioners allotment have been paid in full,all right,title and interest in and to the 3 Units of Subdistrict water under this allotment contract shall vest in the Subdistrict for subsequent use or disposition in its sale and 0 0 exclusive discretion in the event that the annual obligations created by article 5(a)(ii)Ciii) (iv)and (v)hereof are not paid.At the time of any such default if there exist amounts due under any of the bonds or other fixed indebtedness incurred by the Subdistrict for the Windy Gap Project during any period prior to transfer of a part of or all of Petitioners allotment,allright,title and interest in or to the 3 Units ofSubdistrictwaterunderthisallotmentcontractshallimmediatelyre-vest in Superior in accordance with and upon the terms of the Water Allotment Contract dated April 1,1988,between Superior and the Subdistrict,as though such units had never been transferred to Petitioner. Written notice of said default shall be provided by Subdistrict to Petitioner and to Superior and Estes Park.Thereafter,Superior shall make payment of all annual charges due under its Water Allotment Contract,including the 3 Units formerly allotted by Subdistrict to Petitioner,all as provided for in Superior’s Allotment Contract,dated April 1,1988,specificallyArticle9thereof.If Superior shall fail to make timely payment of its obligations under the Water Allotment Contract dated April 1,1988,allright,title and interest in or to the 3 Units ofSubdistrictwaterunderthisallotmentcontractshallimmediatelyre-vest in Estes Park in accordance with and upon the terms of the Water Allotment Contract dated July 11,1975,between Estes Park and the Subdistrict,as though suchunitshadneverbeentransferredtoSuperior. Written notice of Superior’s default shall be provided by Subdistrict to Petitioner,Superior and Estes Park.Thereafter,Estes Park shall make payment of all annual charges due under its Water Allotment Contract,including the 3 Units formerly allotted by Subdistrict to Petitioner,all as provided for in Estes Park Allotment Contract,dated July 11,1975,specificallyArticle9thereof. (d)Re-Allotment.Subdistrict agrees that itwill,upon the filing of a petition byPetitioner,and notice and hearing,re-allot toPetitioneronthetermsandconditionsofthis .0 0 allotment contract all or a portion of the Units of Subdistrict water held by Superior or Estes Park subseauent to a default of this allotment contract upon a finding that all amounts owed by Petitioner and Superior or and Estes Park pursuant to this allotment contract have been paid to Subdistrict and that Petitioner is entitled to such re-allotment,which findings shall be made by the Subdistrict Board within 60 days of the filing of the petition.Such re allotment shall likewise be subject to vesting in the Subdistrict or reversion to Superior or Estes Park in the event of a subsequent declaration of default,all in accordance with the provisions of this allotment contract,including without limitation this Article 10. 11.Beneficial Use of Water.Petitioner agrees that the water allotment shall be beneficially used for the purposes and in the manner specified herein,and this allotment contract is made for the exclusive benefit of the Petitioner and shall not inure to the benefit of any successors or assigns of said Petitioner without prior specific approval by the Board,except as provided in Article 16 hereof. 12.Operating Agreement.Petitioner acknowledges and understands that Subdistrict water is only delivered at project system delivery points and that allfacilities,lands,rights-of-way and easements necessary for the delivery of Subdistrict water to Petitioner’s service area are at the sole cost and responsibility of Petitioner to acquire,construct, operate and maintain.Further,Petitioner recognizes and understands that the delivery of Subdistrict water to Petitioner through the Colorado-Big Thompson System is limited during certain periods during the Water Year and that it is necessary to enter into an Operating Agreement with Subdistrict providing for the means,times and other matters relating to the delivery of Subdistrict water to Petitioner.Delivery concerns and problems,including scheduling,may require Petitioner to construct,operate and maintain storage,transmission and other facilities for the use of its Subdistrict water.Notwithstanding the foregoing,the Petitioner may take delivery of Subdistrict water on a year-round basis from Carter 0 0 Lake through the Southern Water Supply Project Pipeline,pursuant to and in accordance withPetitioner’s allotment contracts therefor and applicable District and Subdistrict procedures,rules and regulations. 13.Limitations on Rights of Petitioner.In addition toalltheotherterms,conditions and covenants contained herein,it is specifically understood and agreed by and between the parties hereto that the rights of Petitioner hereunder are subject to the following terms,conditions and limitations,to allintentsandpurposesasthoughsetforthverbatim herein,and made a part hereof by reference,to-wit: (a)The Water Conservancy Act of Colorado; (b)The Amendatory Carriage Contract dated March 1,1990,between Subdistrict,the Northern Colorado Water Conservancy District,and the United States of America,provided,that if any amendment is proposed which would affect therightofPetitionertoreuseSubdistrictwater, the approval of such amendment shall first be obtained from the Petitioner. (c)The Rules,Regulations and Policies of the Board,as may be amended from time to time, including but not limited to the Subdistrict Policy Regarding First Use,Reuse,Successive Use or Other Disposition of Subdistrict Water,as adopted by the Board on October 11,1985,and theSubdistrictInclusionPolicy,as adopted by the Board on October 11,1985. 14.Transfer of Allotment.If Petitioner,with approval of the Board,transfers a part of its allotment to another entity within the Subdistrict,Petitioner shall be relieved of its obligation hereunder to the extent of said transfer,except as otherwise providedherein.If Petitioner,with approval of the Board,transfers all of its allotment to another entity within the Subdistrict,Petitioner shall no longerparticipateintheWindyGapProjectandthePetitionershallberelievedofitsobligationsexcept as otherwise provided herein. 0 C 15.Future Participation.Nothing herein shall be construed in any manner that will obligate Petitioner to participate in any future or other project of the Subdistrict or preclude Petitioner from participation therein. 16.Authorization.Petitioner attaches hereto a true and correct copy of Petitioner’s records authorizing the officers,whose names appear hereon,to make this petition. 17.Entire Agreement.This allotment contract,together with the statutes,contracts,rules,regulations and policies listed or incorporated herein,constitutes the sole agreement and understanding of the parties and may not be interpreted,modified or changed by reference to other documents,understandings or agreements,whether written or oral,unless the interpretation,modification or change is subsequently agreed to in writing by the parties hereto. 18.Confirmation.This allotment contract,an all agreements related thereto,may be confirmed by Subdistrict pursuant to C.R.S.§37-45-143. Dated: __________________________ ,2002. TOWN OF ERIE,COLORADO,A COLORADO MUNICIPAL CORPORATION,ACTING BY AND THROUGH THE ERIE WATER ENTERPRISE By:_ Title: ATTEST: By: Title: C 0 AGREEMENT OF SUPERIOR METROPOLITAN DISTRICT NO.1 The Superior Metropolitan District No.1 hereby agrees: Ci)that the existence of a reliance upon this water allotmentcontractdoesnotaffectormodifyitsobligationsunderits water allotment contract dated April 1,1988;(ii)to be bound by the provisions of this water allotment contract,as the same may apply to it,including without limitation,the provisions ofArticles10(c)and 10(d)hereof;and (iii)its agreement inclause(ii)above does not represent the creation or assumption of any new obligations,but,instead,represents thecontinuationofitsobligationsunderitswaterallotmentcontractdatedApril1,1988.This Agreement is made inconsiderationoftheSubdistrictapprovingthetransfer of 3UnitsofSubdistrictwatertotheTownofErie,Colorado,a Colorado municipal corporation,acting by and through the Erie Water Enterprise,and is made in order to implement theprovisionsoftheSuperiorMetropolitanDistrictNo.1 waterallotmentcontract,dated April 1,1988,regarding transfers. SUPERIOR METROPOLITAN DISTRICT NO.1 By: Title: ATTEST: By: Title: 0 0 AGREEMENT OF TOWN OF ESTES PARK The Town of Estes Park,Colorado,hereby agrees:U)that the existence of or reliance upon this water allotment contract does not affect or modify its obligations under its water allotment contract dated July 11,1975;(ii)to be bound by the provisions of this water allotment contract,as the same may apply to it,including without limitation,the provisions of Articles 10(c)and 10(d)hereof;and (iii)its agreement in clause (ii)above does not represent the creation or assumption of any new obligations,but,instead,represents the continuation of its obligations under its water allotment contract dated July 11,1975.This Agreement is made in consideration of the Subdistrict approving the transfer of 3 Units of Subdistrict water to the Town of Erie,Colorado,a Colorado municipal corporation,acting by and through the Erie Water Enterprise,and is made in order to implement the provisions of the Town of Estes Park water allotment contract, dated July 11,1975,regarding transfers. TOWN OF ESTES PARK By: Title: ATTEST: By: Title: 0 0 0 0 PETITION TO MUNICIPAL SUBDISTRICT NORTHERN COLORADO WATER CONSERVANCY DISTRICT FOR WATER ALLOTMENT CONTRACT The City of Louisville,Colorado,a Colorado home rule municipal corporation,acting by and through the City ofLouisvilleWaterActivityEnterprise(hereinafter “Petitioner”), hereby petitions the Municipal Subdistrict,Northern Colorado Water Conservancy District,a political subdivision of the State of Colorado,and a body corporate with all the powers of a public or municipal corporation (hereinafter called “Subdistrict”)organized and existing by virtue of C.R.S.§37- 45-101 et for an allotment contract pursuant to C.R.S.§ 37-45-123,for the beneficial use of water under and pursuant to the following terms and conditions: 1.Definitions.The following definitions shall apply: (a)“Acre-foot”shall mean 43,560 cubic-feet of water and any volume of water delivered by theSubdistrictwillbecomputedontheassumptionthataflowofonecubic-foot of water per second of time will equal two acre-feet in twenty-four hours. (b)“Board”shall mean the Board of Directors of the Subdistrict. (c)“Carriage Contract”shall mean that Amendatory Contract entered into on March 1, 1990,between the Subdistrict,the Northern Colorado Water Conservancy District,and the United States of America for the purpose ofutilizingtheunusedcapacityofthefacilities of the Colorado-Big Thompson Reclamation Project for the carriage of water developed by theSubdistrict,and any subsequent amendments or successor contracts for the same purpose. Cd)“Delivered Water”is that Subdistrict water 0 0 delivered to Petitioner for use by thePetitioner. Ce)“Entity”shall mean any public corporation, person,mutual ditch company,water users’association or private corporation. (f)“Operating Agreement”shall mean an agreement required by the Subdistrict forprovisionofservicesthatmayberequested byPetitionerandwhichcanbeprovidedbytheSubdistrict.Said agreement may contain,but not be limited to,provisions relating to thequantity,location or time of water delivered pursuant to this Contract,provisions for the payment by Petitioner of costs associated with the construction,modification,operation, maintenance,repair or administration of new oradditionalfacilitieswhicharerequiredtodeliverwatertoPetitioneratprojectsystemdeliverypointsifsaidfacilitiesarenecessarytoprovidewatertoPetitionerinamannerwhichwillnotimpairtheabilityoftheSubdis a a trict to deliver water to other allottees of the Subdistrict,or provisions for the payment of costs which may arise from services to Petitioner not otherwise provided for under this Contract. (g)“Project water”shall mean all water that accrues to the use of the Northern Colorado Water Conservancy District or its allottees by reason of the Colorado-Big Thompson Reclamation Project. (h)“Subdistrict water”shall mean the quantity of water acquired and obtained by the Subdistrict from the development and construction of the Windy Gap Project pursuant to applicable state law,and which the Subdistrict introduces into the project system either directly or by exchange and which is deliverable to the Subdistrict through the project works. (i)“Unit”shall mean 1/480th of the Subdistrict water supply annually made available fordistributionbytheBoard. (j)“Water Year”shall mean the period from November 1 of one calendar year through October 31 of the next succeeding calendar year. (k)“Windy Gap Project”shall mean that project (including the acquisition and perfection of water rights)constructed by the Subdistrict for the diversion of waters from the Colorado River at or near its confluence with the Fraser River and Carriage of this Subdistrict water to the Eastern Slope for beneficial use pursuant to the terms of the Carriage Contract.For purposes ofthisContract,said Project is defined as thosefacilitiesnecessarytodivert,pump,store, regulate,and introduce into the Colorado-Big Thompson Project that quantity of Subdistrict water which will produce an average deliverable quantity of water equal to approximately 48,600 acre-feet per water year under the water rights decreed to the Windy Gap Project and in accordance with all applicable agreements,court decrees and orders. 2.Quantity of Water.Petitioner petitions for 6 Units of 0 0 Subdistrict water for annual delivery commencing as ofthedateofthegrantingofthispetitionbytheBoard and for so long thereafter as Petitioner fully complies with all the terms,conditions andobligationshereinaftersetforth,but in no event for a term less than the period required for the payment of bonds or other fixed indebtedness incurred by theSubdistrictfortheWindyGapProjectduringanyperiodpriortotransferofapartorallofPetitioner’s allotment to an entity within theSubdistrict. 3.Use of Water.Petitioner agrees that any Subdistrict water allotted by the Board shall be for domestic,irrigation,municipal and industrial use within orthroughfacilitiesoruponlandsownedorservedbysaidPetitioner,provided,however,that (i)alllands,facilities and service areas which receivebenefitfromtheallotment(whether water service isprovidedbydirectdelivery,by exchange or otherwise)shall be situated within the boundaries of theSubdistrict,and (ii)said water my be seasonallytransferredbyPetitionerforsuchuseswithin Northern Colorado Water Conservancy District orSubdistrictboundaries.Petitioner also agrees to Ci)account for,by the use of separate water meters,alldeliveriesofwatertousersthatwillreceiveSubdistrictwater;(ii)certify,prior to November 1 of each year,that it owns,leases or otherwisecontrolssufficientwaterfromsourcesotherthanSubdistrictwatertosupplywaterforthenextwateryeartoanyandallserviceareaslocatedoutsideoftheSubdistrictboundaries;and (iii)provide to theSubdistrict,on or before November 30 of each year,acompleteaccountingofthedispositionanduseofallwaterusedbyitduringthepreviouswateryear.Petitioner shall not receive Subdistrict water in excess of the quantity required by the metered uses ofwaterwhicharewithintheSubdistrictboundaries. Nothing herein shall prevent the Petitioner fromreusingSubdistrictwater,by direct delivery, exchange or otherwise,provided that the first usethereofisforbenefitoflands,facilities andserviceareaswithintheboundariesoftheNorthern Colorado Water Conservancy District or Subdistrict or as otherwise provided by law and Subdistrict policy and regulations. a C 4.Delivery of Subdistrict Water.Pursuant to terms of the Carriage Contract,the introduction,storage, carriage and release of Subdistrict water into, through or from the Colorado-Big Thompson project system and the manner of delivery,measurement and accounting therefor shall be in accordance with procedures in use between the United States and Northern Colorado Water Conservancy District for the delivery of Project water or as such procedures are herein or may hereafter be modified by agreement of the parties.Deliveries of Subdistrict water to Subdistrict and its allottees shall be made by the United States and the Northern Colorado Water Conservancy District at project system delivery points.No part of Petitioner’s Subdistrict water shall be delivered to another entity without the written authorization of Petitioner. 5.Annual Charges.Petitioner agrees to pay the following annual charges: (a)Commencing in 2003 and annually thereafter an amount per Unit as allocated by this contract equal to 1/480th of the sum of (i)the annual charge required to pay the principal,interest and premium,if any,on bonds issued or other fixed indebtedness incurred by Subdistrict to finance the acquisition and construction of the Windy Gap Project;(ii)the annual costs, exclusive of those costs set forth in Paragraph (b)of this Article,incurred by Subdistrict in the administration,operation,maintenance, repair,and rehabilitation of Windy Gapfacilitiesandsuchotherannualcosts as mayarisefromandbeattributabletotheoperation of Windy Gap Project;(iii)an annual amount to establish and maintain a reserve equal to the maximum principal and interest due or to become due in the succeeding year on all outstanding bonds or other fixed indebtedness of the Subdistrict;(iv)such an annual amount,as the Board shall determine to be necessary,to establish and maintain an operating and maintenance reserve equal to eighteen months operating and maintenance costs;and Cv)such other reserves as the Board shall determine are 0 0 necessary for operation,maintenance,renewal or replacement of Subdistrict facilities. (b)An amount per acre-foot of Subdistrict waterdeliveredtoPetitioner.Said amount shall be due and payable annually and shall be the sum of (i)the annual per acre-foot carriage charge levied in accordance with the Carriage Contract;and(ii)an annual per acre-foot charge for the energy costs incurred in the operation of those Windy Gap Project facilities required to divert, pump,store or introduce such water into the Colorado-Big Thompson Project for carriage anddeliverytotheSubdistrict. 6.Estimated Demand and Delivery Schedule.On or before August 1 of each year,Petitioner shall provideSubdistrictwithanestimateddemandanddeliveryschedule,not to exceed the amount of Subdistrict water allotted herein,for its Subdistrict water forthefollowingWaterYear.This schedule shall containthetime,delivery points and quantities of water which Petitioner estimates it shall require.Thisschedulemaybemodifiedfromtimetotimeasthe needwarrantswithinthephysicalcapabilitiesofthedeliverysystemandsubjecttoadvancepaymentbythePetitionerofthechargesestablishedinArticle5(d)of the Carriage Contract. 7.Estimate Statement.Subdistrict shall furnishPetitionerwithanestimatedstatementofanticipatedassessmentsrequiredunderArticle5(a)or 5(b)hereof,or both,on or before August 31 of each year, which statement shall be used by Petitioner forbudgetingpurposesforthefollowingfiscalyear. 8.Payment of Charges.On or before March 1 of each year,Subdistrict shall render a billing statement toPetitionerforpaymentofallchargesandcosts dueunderthiscontract,as based upon estimated demandforthatyearasprovidedinArticle6hereof.TheestimatedassessmentshallbebaseduponactualcostsincurredduringthepreviousWaterYear,plus suchadditionalamountsreasonablyattributabletoinflation.Any credit from the previous Water Year or any additional charges from the previous Water Yearshallbeincludedinthebillingstatementrendered. 0 0 Petitioner shall pay the net charges shown on thebillingstatementofestimatedassessmentsonor before April 1 after receipt of statement. 9.Security. (a)As security to the Subdistrict,the Petitioner agrees,to the extent permitted by law,to be bound by the provisions of C.R.S.§ 37-45-123,and that the foregoing covenant of annual payments will be met,to the extent permitted by law,from assessments levied by the Subdistrict pursuant to C.R.S.§37-45-123,or, at the option of Petitioner,such annual payments may be fully or partially met by appropriation of funds from such sources of revenue as may be legally available to said Petitioner for such purpose.Further,the Petitioner agrees to continue to make the annual payments,as defined in Article 5 of this contract,for those Units of Subdistrict water allotted to it and for whichPetitionerisobligatedbytheadoptionofa resolution which resolution expressly shall not be repealable until all bonded indebtedness of the Subdistrict incurred during any period prior to transfer of a part or all of Petitioner’s allotment is paid in full according to the terms of any bond indenture or other indenture issued by Subdistrict.This is not intended to create a General Obligation of Debt of the Petitioner. (b)As further security for the payment of the annual charges required by this allotment contract,Petitioner also agrees to provide the Superior Metropolitan District No.1 (“Superior”) and the Town of Estes Park (“Estes Park”)with an annual,irrevocable,standby letter of credit in the amount estimated to equal one year of annual charges under this allotment contract,whichletterofcreditshallberenewedonJune1 of each calendar year,or Petitioner shall deposit one year of such estimated annual charges into an escrow account,which shall be payable to the Subdistrict in the event of a failure of Petitioner to timely pay such annual charges. Superior and Estes Park hereby convey to Subdistrict the right to exercise their rights 0 0 under the letter of credit.Petitioner shall be required to maintain the letter of credit or escrow account until all bonded indebtedness of the Subdistrict incurred during any period prior to transfer of a part or all of Petitioner’s allotment is paid in full according to the terms of any bond indenture or other indenture issued by Subdistrict.If Petitioner,with approval of the Board,transfers all or part of its allotment to another entity within the Subdistrict,it shall be relieved of the requirement to maintain a letter of credit or escrow account to the extent that the transferee provides equivalent substitute security. Cc)Petitioner,Superior and Estes Park agreethattheexistenceoforrelianceupontheletter of credit or escrow account does not affect or modify Petitioner’s obligations hereunder or the obligations of Superior or Estes Park to Subdistrict under the Water Allotment Contracts dated April 1,1988,and July 11,1975, respectively. 10.Default. (a)Notice of Non-Payment or Non-Renewal.If any payment of annual charges,as herein provided,is not made by the due date,or if the letter ofcreditorescrowaccountdescribedinparagraph 9(b)above are not maintained or renewed as required therein,written notice thereof will be given by the Subdistrict to Petitioner at the following designated address: City of Louisville 749 Main Street Louisville,Colorado 80027 Attention:City Manager or at such other address as is furnished toSubdistrictbythePetitioner,and to Superior at the following designated address: Public Works and Utilities Town of Superior 124 E.Coal Creek Drive C a Superior,Colorado 80027 or at such other address as is furnished to Subdistrict by Superior,and to Estes Park at the following designated address: 0 0 Town Administrator Town of Estes Park 170 MacGregor P.O.Box 1200 Estes Park,Colorado 80517 or at such other address as furnished toSubdistrictbyEstesPark. (b)Default.Subdistrict may,in its solediscretion,declare Petitioner to be in default of this allotment contract if all annual payments due under this allotment contract are not made by or on behalf of Petitioner,or if the letter ofcreditorescrowaccountdescribedinparagraph 9W)above are not maintained or renewed asrequiredtherein,within 15 days of the date of the Notice of Non-payment provided in accordance with Article 10(a)hereof.Subdistrict shall not be deemed to have waived or relinquished therighttodeclareadefaultbyvirtueofany delay in the declaration of such default after theexpirationofthe15dayperiodprovidedfor inthisArticle10(b) Cc)Reversion.Upon the declaration of default by the Subdistrict,this allotment contract shallterminate,and Petitioner shall have no furtherright,title or interest in the 6 Units ofSubdistrictwaterunderthisallotmentcontract except as is provided in Article 10(d)below.At the time of any such default if all bonds orotherfixedindebtednessincurredbythe Subdistrict for the Windy Gap Project during anyperiodpriortotransferofapartoforallofPetitionersallotmenthavebeenpaidinfull,allright,title and interest in and to the 6 Units of Subdistrict water under this allotment contract shall vest in the Subdistrict for subsequent use or disposition in its sole andexclusivediscretionintheeventthattheannualobligationscreatedbyarticle5(a)(ii)(iii), (iv)and (v)hereof are not paid.At the time of any such default if there exist amounts due under any of the bonds or other fixed indebtedness incurred by the Subdistrict for the Windy Gap C C Proj ect during any period prior to transfer of a part of or all of Petitioners allotment,all right,title and interest in or to the 6 Units of Subdistrict water under this allotment contract shall immediately re-vest in Superior in accordance with and upon the terms of the Water Allotment Contract dated April 1,1988,between Superior and the Subdistrict,as though such units had never been transferred to Petitioner. Written notice of said default shall be provided by Subdistrict to Petitioner and to Superior and Estes Park.Thereafter,Superior shall make payment of all annual charges due under its Water Allotment Contract,including the 6 Units formerly allotted by Subdistrict to Petitioner, all as provided for in Superior’s Allotment Contract,dated April 1,1988,specifically Article 9 thereof.If Superior shall fail to make timely payment of its obligations under the Water Allotment Contract dated April 1,1988,all right,title and interest in or to the 6 Units of Subdistrict water under this allotment contract shall immediately re-vest in Estes Park in accordance with and upon the terms of the Water Allotment Contract dated July 11,1975,between Estes Park and the Subdistrict,as though such units had never been transferred to Superior. Written notice of Superior’s default shall be provided by Subdistrict to Petitioner,Superior and Estes Park.Thereafter,Estes Park shall make payment of all annual charges due under its Water Allotment Contract,including the 6 Units formerly allotted by Subdistrict to Petitioner,all as provided for in Estes Park Allotment Contract,dated July 11,1975,specifically Article 9 thereof. Cd)Re-Allotment.Subdistrict agrees that it will,upon the filing of a petition by Petitioner,and notice and hearing,re-allot to Petitioner on the terms and conditions of this allotment contract all or a portion of the Units of Subdistrict water held by Superior or Estes Park subsequent to a default of this allotment contract upon a finding that all amounts owed by Petitioner and Superior or and Estes Park pursuant to this allotment contract have been 0 0 paid to Subdistrict and that Petitioner isentitledtosuchre-allotment,which findingsshallbemadebytheSubdistrictBoardwithin 60 days of the filing of the petition.Such reallotmentshalllikewisebesubjecttovesting intheSubdistrictorreversiontoSuperiororEstes Park in the event of a subsequent declaration ofdefault,all in accordance with the provisions ofthisallotmentcontract,including withoutlimitationthisArticle10. 11.Beneficial Use of Water.Petitioner agrees that the water allotment shall be beneficially used for thepurposesandinthemannerspecifiedherein,and thisallotmentcontractismadefortheexclusivebenefit of the Petitioner and shall not inure to the benefit of any successors or assigns of said Petitioner without prior specific approval by the Board,except as provided in Article 16 hereof. 12.Operating Agreement.Petitioner acknowledges andunderstandsthatSubdistrictwaterisonlydeliveredatprojectsystemdeliverypointsandthatallfacilities,lands,rights-of-way and easementsnecessaryforthedeliveryofSubdistrictwater toPetitioner’s service area,are at the sole cost andresponsibilityofPetitionertoacquire,construct,operate and maintain.Further,Petitioner recognizes and understands that the delivery of Subdistrict watertoPetitionerthroughtheColorado-Big Thompson SystemislimitedduringcertainperiodsduringtheWater Year and that it is necessary to enter into anOperatingAgreementwithSubdistrictproviding for the means,times and other matters relating to thedeliveryofSubdistrictwatertoPetitioner.Deliveryconcernsandproblems,including scheduling,mayrequirePetitionertoconstruct,operate and maintainstorage,transmission and other facilities for the useofitsSubdistrictwater.Notwithstanding theforegoing,the Petitioner may take delivery ofSubdistrictwateronayear-round basis from Carter Lake through the Southern Water Supply ProjectPipeline,pursuant to and in accordance withPetitioner’s allotment contracts therefor andapplicableDistrictandSubdistrictprocedures,rules and regulations. C C 13.Limitations on Rights of Petitioner.In addition toalltheotherterms,conditions and covenants contained herein,it is specifically understood and agreed by and between the parties hereto that the rights of Petitioner hereunder are subject to the following terms,conditions and limitations,to all intents and purposes as though set forth verbatim herein,and made a part hereof by reference,to-wit: (a)The Water Conservancy Act of Colorado; (b)The Amendatory Carriage Contract dated March 1,1990,between Subdistrict,the Northern Colorado Water Conservancy District,and the United States of America,provided,that if any amendment is proposed which would affect therightofPetitionertoreuseSubdistrictwater, the approval of such amendment shall first be obtained from the Petitioner. Cc)The Rules,Regulations and Policies of the Board,as may be amended from time to time, including but not limited to the Subdistrict Policy Regarding First Use,Reuse,Successive Use or Other Disposition of Subdistrict Water,as adopted by the Board on October 11,1985,and theSubdistrictInclusionPolicy,as adopted by the Board on October 11,1985. 14.Transfer of Allotment.If Petitioner,with approval of the Board,transfers a part of its allotment to another entity within the Subdistrict,Petitioner shall be relieved of its obligation hereunder to the extent of said transfer,except as otherwise provided herein.If Petitioner,with approval of the Board,transfers all of its allotment to another entity within the Subdistrict,Petitioner shall no longerparticipateintheWindyGapProjectandthePetitionershallberelievedofitsobligationsexcept as otherwise provided herein. 15.Future Participation.Nothing herein shall be construed in any manner that will obligate Petitioner to participate in any future or other project of the Subdistrict or preclude Petitioner from participation therein. o 0 16.Authorization.Petitioner attaches hereto a true andcorrectcopyofPetitioner’s records authorizing theofficers,whose names appear hereon,to make thispetition. 17.Entire Agreement.This allotment contract,together with the statutes,contracts,rules,regulations andpolicieslistedorincorporatedherein,constitutes the sole agreement and understanding of the parties and may not be interpreted,modified or changed byreferencetootherdocuments,understandings or agreements,whether written or oral,unless theinterpretation,modification or change is subsequently agreed to in writing by the parties hereto. 18.confirmation.This allotment contract,an all agreements related thereto,may be confirmed bySubdistrictpursuanttoC.R.S.§37-45-143. Dated: __________________________ ,2002. CITY OF LOUISVILLE,COLORADO,A COLORADO HOME RULE MUNICIPAL CORPORATION,ACTING BY AND THROUGH THE CITY OF LOUISVILLE WATER ACTIVITY ENTERPRI SE By:Title: ATTEST: By:Title: 0 C AGREEMENT OF SUPERIOR METROPOLITAN DISTRICT NO.1 The Superior Metropolitan District No.1 hereby agrees:Ci) that the existence of a reliance upon this water allotment contract does not affect or modify its obligations under its water allotment contract dated April 1,1988;(ii)to be bound by the provisions of this water allotment contract,as the same may apply to it,including without limitation,the provisions of Articles 10(c)and 10(d)hereof;and (iii)its agreement in clause (ii)above does not represent the creation or assumption of any new obligations,but,instead,represents the continuation of its obligations under its water allotment contract dated April 1,1988.This Agreement is made in consideration of the Subdistrict approving the transfer of 6 Units of Subdistrict water to the City of Louisville,Colorado, a Colorado home rule municipal corporation,acting by and through the City of Louisville Water Activity Enterprise,and is made in order to implement the provisions of the Superior Metropolitan District No.1 water allotment contract,dated April 1,1988,regarding transfers. SUPERIOR METROPOLITAN DISTRICT NO.1 By:Title: ATTEST: By:_ Title: 0 0 AGREEMENT OF TOWN OF ESTES PARK The Town of Estes Park,Colorado,hereby agrees:(i)thattheexistenceoforrelianceuponthiswaterallotmentcontract does not affect or modify its obligations under its waterallotmentcontractdatedJuly11,1975;(ii)to be bound by theprovisionsofthiswaterallotmentcontract,as the same mayapplytoit,including without limitation,the provisions ofArticles10(c)and 10(d)hereof;and (iii)its agreement inclause(ii)above does not represent the creation or assumptionofanynewobligations,but,instead,represents thecontinuationofitsobligationsunderitswaterallotmentcontractdatedJuly11,1975.This Agreement is made inconsiderationoftheSubdistrictapprovingthetransfer of 6UnitsofSubdistrictwatertotheCityofLouisville,Colorado, a Colorado home rule municipal corporation,acting by andthroughtheCityofLouisvilleWaterActivityEnterprise,and is made in order to implement the provisions of the Town of EstesParkwaterallotmentcontract,dated July 11,1975,regardingtransfers. TOWN OF ESTES PARK By:_Title: ATTEST: By:Title: