HomeMy WebLinkAbout20011200.tiff RESOLUTION
RE: APPOINT DELEGATE TO REPRESENT WELD COUNTY AT SPECIAL MEETING OF
FULTON IRRIGATING DITCH COMPANY AND AUTHORIZE CHAIR TO SIGN PROXY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, it has been determined that Weld County should have a delegate to act as
its representative at the Special Meeting of the Fulton Irrigating Ditch Company, which is
scheduled for May 9, 2001, at 7:00 p.m., and
WHEREAS, the Board deems it advisable to appoint Lee Morrison, Assistant County
Attorney, as the delegate to represent Weld County at said meeting.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that Lee Morrison, be, and hereby is, appointed as the delegate to
represent Weld County at the Special Meeting of the Fulton Irrigating Ditch Company, said
meeting being scheduled for May 9, 2001, at 7:00 p.m.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign the proxy appointing Lee Morrison, to represent Weld County at said special meeting.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 7th day of May, A.D., 2001.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
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1. M. J..�Geille, Ch it
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2001-1200
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TO: Board of County Commissioners
FROM: Lee D. Morrison, AssistantWeld County Attorney
inDe DATE: May 3, 2001
COLORADO SUBJECT: Fulton Ditch Carriage Agreement
The Fulton Ditch is holding a special meeting May 9, 2001 to consider a carriage agreement with South
Adams County Sanitation, Denver and Thorton. The agreement is summarized in a memo from Special
Counsel to the Fulton Board of Directors. It provides that the Fulton will receive new headgates, water
stock or cash, carriage charges and improvements to the ditch in return for allowing the carriage of
foreign water. This appears to be an immediate benefit to the ditch and would not impair delivery of the
County' s 28 shares.
If the Board is willing to support the agreement, I would recommend executing the proxy on behalf of
one of the Fulton Ditch Board members, most likely Chairman Paul Schmidt. The other option would
be not to execute a proxy or to execute one on behalf of County Staff to appear at the meeting.
L e D. Morrison
Assistant Weld County Attorney
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2001-1200
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
Notice is hereby given that a special meeting of the stockholders of the Fulton Irrigating Ditch
Company will be held at the BRIGHTON RECREATION CENTER Meeting Rooms, located at 555
North 11ih Avenue, Brighton, Colorado, on WEDNESDAY, MAY 9, 2001, AT 7:00 o'clock p.m. for the
purpose of voting approval or disapproval of Carriage Agreements with South Adams County Water &
Sanitation District-Denver and City of Thornton, and for the transaction of such other business as may
properly come before the meeting. Proposed Agreements are included with this Notice. Pizza will be
served at 6:30 p.m before the meeting.
It is important that a quorum be present. It is important that you be present or give your proxy to
someone who will be present, or you may designate one of the present board members to vote your stock.
The present board members are: Steve Brancucci, Cecil King, Paul Schmidt,Clint Blackhurst and Dr. John
Thimmig. Mail your proxy to the Secretary at 25 South Fourth Avenue, Brighton, Colorado 80601. If you
are not present, your representative will vote your stock. If you are present, you may revoke the proxy and
vote your own stock.
It is important that a majority of all the stock; namely 3,600 shares, be present in person or by
proxy.
Dated at Brighton, Colorado, March 27,2001.
Paul Schmidt, President
Attest:
Bradley J. Coover, Secretary
PROXY
KNOW ALL MEN BY THESE PRESENTS:That I, the undersigned stockholder in the Fulton Irrigating
Ditch Company do hereby appoint: Lee Morrison, Assistant County Attorney
my true and lawful attorney, with power of substitution for me and in my name to vote at the special
meeting of the stockholders of said company to be held WEDNESDAY, MAY 9, 2001, at 7:00 o'clock
p.m. at BRIGHTON RECREATION CENTER, 555 North 11t° Avenue, Brighton, Colorado, or at any
adjournment or continuation thereof, with all the powers I shoul possess if personally present, hereby
revoking all previous proxies.
S of tockholder
Shares M. J. Geile, Chair (05/07/2001)
Date
dOcOi -/QA)
FULTON IRRIGATING DITCH COMPANY
MEMORANDUM
TO: Stockholders of the Fulton Irrigating Ditch Company
FROM: Board of Directors, and
Mary Mead (Mooey)Hammond, Special Counsel (Telephone: 303-861-9000)
DATE: March 13, 2001
RE: Proposed Carriage Agreements with South Adams County Water & Sanitation
District/Denver Water Board and the City of Thornton
The following outline of the main features of proposed Carriage Agreements between the
Company and South Adams County Water& Sanitation District and the Denver Water Board,and
the City of Thornton, respectively, that will be considered by the Company's stockholders at a
special meeting to be held on Wednesday,May 9,2001 at 6:30 p.m. at the Brighton Rec. Center is
provided to assist the stockholders.
1. General. As indicated at the Company's annual meeting, the Board adopted two
principles to guide negotiation of these agreements: first,the carriage of so-called"foreign"water
not diverted on the Company's own water rights cannot interfere with carriage of the stockholders'
water; and second,that the Company would prefer to receive additional water in compensation for
granting carriage rights rather than cash.
In order to meet the first objective, both proposed agreements provide for the carriage
customers(South Adams County and Denver,and Thornton respectively) to construct,at their risk
and expense, improvements to the Fulton Ditch that will effectively enlarge its capacity to
accommodate at all times both the stockholders' water, and the foreign water to be carried for the
benefit of the carriage customers. These improvements will include a new riverheadgate,which will
have at least 300 c.f.s. additional capacity, and lining of the ditch to the Thornton, and South
Adams/Denver proposed turnouts approximately 104t Avenue,and 115`"Avenue,respectively. The
lining project will include reconstruction as needed of any existing turnouts,etc. in the ditch reach
being lined.
It is anticipated that the lining will enlarge the effective capacity in the ditch in the lined
reach by some 150-300 c.f.s. As part of the construction project, the current ditch capacity in the
reach to be lined will be determined; once the lining is completed, the enlarged capacity will also
be determined. The ditch capacity to be made available for use by the carriage customers will be
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limited to the lesser of 300 c.£s. (combined for South Adams/Denver and Thornton)and the actual
increased capacity caused by lining the ditch. Thus,if the current capacity is 230 c.f.s. in the reach
to be lined, and after the lining the capacity has been increased to 530 c.f.s., then South
Adams/Denver and Thornton will be entitled to carry a total of 300 c.f.s. in the ditch; if, however,
the actual increase in capacity were less than 300 c.f.s., then South Adams/Denver and Thornton
would be limited to use of the actual increased capacity for carriage of their water.
In order to meet the Board's second objective in the negotiations,the proposed Agreement
with South Adams/Denver provides that instead of cash, South Adams/Denver will pay for their
carriage right by conveying 100 shares of the Company's capital stock to the Company. Water will
not be delivered upon those 100 shares,which will instead be held as treasury stock. The result will
be that instead of apportioning the Company's water supply in equal portions among some 7,200
shares,it will be divided among 7,100 shares,and each share will therefore receive additional water
--its pro rata share of the water that would otherwise had been delivered upon those 100 shares. At
the same time,holding the shares as treasury stock will give the Company financial flexibility. If,
for example as a result of some disaster,the Company faced a huge financial burden,it could borrow
against those shares,sell the shares,or otherwise use those shares to raise cash for the benefit of the
Company.
Similarly,the Agreement with Thornton calls for it to convey 25 shares of Company stock
over the next five years. Because Thornton is not currently a stockholder, the contract allows
Thornton to pay cash to the Company to the extent that it is unable to purchase the shares on the
open market in the next five years. No carriage right will be granted to Thornton until such time as
the agreed-upon compensation has been fully paid.
2. Other Important Features of the Agreements.
A. Carriage Right. The Carriage Right that will be granted if the Agreements
are completed is a permanent right in the nature of an easement.
B. New River Headgate. The new river headgate to be built under the
Agreements is expected to replace the radial gates now in place with so-called Obermeyer gates.
These are bon om-hinged gates,which draw water over the top of the gate. It is hoped that this gate
design will significantly reduce the volume of sand and silt entering the canal, and thereby reduce
weed growth in the ditch.
C. Volume of Water Carried. The Agreement with South Adams/Denver limits
the volume of foreign water that may be carried to an annual average of 20,000 acre-feet per year;
the Agreement with Thornton limits the foreign water to an annual average of 5,000 acre-feet per
year. The Agreements specifically acknowledge that Fulton remains the owner of any additional
capacity created by the ditch improvements that is not used in carrying those volumes of water for
the benefit of South Adams/Denver and Thornton. This too is an asset that could possibly be sold
or otherwise used by the Company in the future.
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D. Carriage Charges. The carriage customers will pay an annual carriage charge
of$8.00 per acre-foot of water carried. (This sum will escalate with inflation.) South Adams and
Denver will pay a minimum carriage charge of$10,000 per year.
E. Maintenance Charges. The Company shall carry out,as it has in the past,all
maintenance procedures on the ditch. The annual carriage charges paid by the carriage customers
will cover routine ditch and river headgate maintenance. The carriage customers will,however,pay
the cost of maintaining their individual turnouts, ditch laterals, etc. In addition, the carriage
customers will be responsible for the entire repair and replacement costs for the ditch lining,and they
will pay all maintenance, repair, and replacement costs for the new river headgate that exceed
$10,000 per year(again subject to annual escalation for inflation).
F. Ditch Operations. Ditch operations,as in the past,will be carried out by the
Company.
3. Further Information. Please feel free to call Mooey Hammond at the telephone number
listed above with any questions,or to discuss the agreements further. In addition,Board members,
or Brad Coover and Brice Steele would also be happy to respond to questions or concerns. We look
forward to seeing you at the Special Stockholders' Meeting on May 9, 2001 at the Brighton Rec.
Center. Please join the Board for pizza at 6:30 p.m., with the special meeting to begin at
approximately 7:00 p.m.
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AGREEMENT
THIS AGREEMENT is entered into this _ day of , 2001, by and
between the Fulton Irrigating Ditch Company, a Colorado mutual ditch company ("Fulton") and
South Adams County Water and Sanitation District, a quasi-municipal special district organized
under Colorado law and also acting in its enterprise capacity pursuant to its Water and Sewer
Enterprise ("South Adams"), and the City and County of Denver, acting by and through its Board
of Water Commissioners, a municipal corporation of the State of Colorado ("Denver").
RECITALS
A. Fulton owns and operates for the benefit of its shareholders the Fulton Ditch ("Ditch")
located in Adams and Weld Counties, Colorado, which includes a diversion dam and headgate on
the South Platte River in the NE'/<of the SE'/ of Section 17, Township 2 South,Range 67 West of
the 6th P.M., in Adams County, Colorado. The capacity of the Ditch and its headgate is
approximately 230 c.f.s.
B. South Adams owns and operates a water supply system which provides water within the
corporate limits of the City of Commerce City and to other customers within its boundaries.
C. Denver, pursuant to the Charter of the City and County of Denver, owns and operates a
municipal water supply system with facilities located inside and outside the Denver city limits which
are used to supply water to meet the water supply needs of its customers.
D. South Adams and Denver are stockholders in Fulton,and also wish to have Fulton divert into
the Ditch water not attributable to Fulton's decree("Foreign Water'),and carry such Foreign Water
to ditch turnouts for water reservoirs located near the reach of the Ditch between 108th Avenue and
approximately 115`" Avenue in Adams County, Colorado. South Adams and Denver presently
intend to use water stored in the reservoirs to release to the South Platte River to effectuate water
exchanges. In order to allow diversions and carriage of South Adams' and Denver's Foreign Water
in the Ditch,it is necessary for the capacity of the Ditch and related facilities,including the headgate
upon the South Platte River, to be enlarged to accommodate an additional 150 c.f.s.
E. The City of Thornton("Thornton")has also indicated a desire to have Fulton divert and carry
Foreign Water in the Ditch to separate exchange reservoirs being developed by that city; in order to
accommodate carriage of Thomton's Foreign Water,the capacity of the Ditch and related facilities
would need to be increased by an additional 150 c.f.s. for a portion of the reach to be improved by
South Adams and Denver. South Adams and Denver anticipate entering into a cost sharing
arrangement with Thornton to effectuate enlargement of the Ditch capacity to accommodate
300 additional c.f.s. for that reach. The parties acknowledge that before participating in such cost
sharing,and before carrying Foreign Water in the Ditch,Thornton will be required to obtain carriage
rights, similar to those provided for herein for South Adams and Denver,from Fulton. Approval of
any carriage agreement with Thornton shall be at the absolute discretion of Fulton.
F. The parties have agreed in concept upon improvements that are expected to enlarge the
capacity of the Ditch in order to carry South Adams' and/or Denver's Foreign Water in the Ditch,
and carry Thornton's Foreign Water in the Ditch, should an agreement for such carriage be
consummated;consideration to be paid for the right to water carriage requested by South Adams and
Denver;and have agreed upon administrative arrangements and charges to govern the mechanics of
carrying Foreign Water for South Adams and Denver, all of which are set forth in this Agreement.
G. The parties recognize that the Colorado Constitution, including Article XVI, Section 7,
provides for the acquisition of ditch rights of way, and C.R.S. §37-86-107 provides for the
acquisition of ditch rights of way and authorizes the enlargement or use of a ditch constructed by
another ditch owner,upon payment of a reasonable portion of the costs of construction of the ditch.
The parties recognize and agree that this Agreement is made in lieu of and in full satisfaction of any
litigation or condemnation action that might have been brought by South Adams and/or Denver
pursuant to the Constitution and statutes to obtain the carriage provided for herein.
NOW THEREFORE,the parties hereto agree as follows:
1. Ditch Improvements
1.1 Background. The parties anticipate that certain improvements will be made
to the Ditch, including reconstruction of the headgate on the South Platte River as generally
described in the attached Exhibit A. and concrete lining of a portion of the Ditch cross-section
approximately from the headgate to the ditch turnouts proposed by South Adams and Denver
between 108th Avenue and 115" Avenue. South Adams and Denver anticipate building the
additional 150 cfs capacity down to their first turnout, to be located somewhere down ditch from
108' Avenue and then possibly stepping-down the additional capacity to a lower amount down to
its lower turnout located somewhere in the vicinity of 115th Avenue; the final determination of the
configuration of the lining will be made in connection with design. It is expected that this
construction will increase the Ditch capacity by approximately 150 c.f.s., from the headgate to the
first of the turnouts between 108'"Avenue and 115'Avenue, and will improve the function of the
Ditch,by,among other things,possibly reducing the volume of silt entering the Ditch at the headgate
and the growth of aquatic weeds in the Ditch. It is also anticipated that the lining project can be
made to increase the capacity by approximately 300 c.f.s. The parties agree, therefore, that if
Thornton enters into cost sharing arrangements with South Adams and Denver, and into a carriage
agreement with Fulton by April 30, 2001,then the headgate and Ditch improvements to be carried
out pursuant to this Agreement shall be required to yield additional capacity of 300 c.f.s.to the point
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of Thomton's turnout; otherwise the improvements shall be required to yield only 150 c.f.s. of
additional capacity to South Adams' and Denver's first turnout.
1.2 Headgate Reconstruction and Ditch Lining. Fulton, as owner of the ditch
system, shall undertake obtaining all necessary permits and shall have final responsibility for
approving and authorizing the project for the reconstruction of the headgate,lining of the ditch and
ancillary construction work. South Adams and Denver shall reimburse Fulton for the costs of
obtaining such permits. Fulton shall cooperate with South Adams and Denver in order to reduce
such costs as much as reasonable. South Adams and Denver,on behalf of Fulton as owner,and in
accordance with any cost-sharing arrangements it may make with Thornton shall contract for and
be responsible for the completion of the reconstruction of the headgate, the lining of the ditch and
the reconstruction of associated facilities in the lined section of the ditch. Said project shall be at
South Adams' and Denver's sole cost and risk,and in accordance with construction designs, plans
and specifications approved in accordance with paragraph 1.3 below, subject to the following
provisions:
1.2.1 It is anticipated that the headgate reconstruction will be generally as
set forth in the preliminary design attached hereto as Exhibit A and will include a new measuring
flume to measure the diversions into the Ditch; however, Fulton shall be free to specify the design
of the headgate facilities at its discretion, so long as: (1) the reconstructed headgate will allow the
diversion into the Ditch of a total of at least the current capacity plus 150 c.f.s. (estimated to total
380 c.f s.),or,if the City of Thornton participates in the Ditch improvements pursuant to appropriate
agreements entered into with South Adams and Denver and Fulton,respectively,by April 30,2001,
at least the current capacity plus 300 c.f.s. (estimated to total 530 c.f.s.); and(2) the modifications
do not result in an unreasonable increase in design, construction, or maintenance costs for the
headgate structure.
1.2.2 The ditch lining shall be completed in accordance with construction
designs. plans and specifications approved by Fulton in accordance with paragraph 1.3 below, and
will include a concrete liner and associated structures sufficient to increase the capacity of the Ditch
from its headgate to the first South Adams and Denver turnout below 108th Avenue by at least
150 c.f.s..or if Thornton participates in the Ditch improvements pursuant to appropriate agreements
entered into with South Adams and Denver and Fulton, respectively, by April 30, 2001, 300 c.fs.
to Thornton's turnout. The parties acknowledge that to the extent it is necessary, the ditch lining
project will include(1)determination of the current(unlined)ditch capacity in the reach to be lined;
(2) reconstruction of a structure at First Creek with capacity equal to present capacity; and (3)
reconstruction of existing turnouts (headgates) in the Ditch reach being lined, and/or construction
of check structures for such headgates to provide them with at least equivalent capacity to divert
water.
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1.2.3 South Adams and Denver shall construct at their sole cost and risk,
and in accordance with construction designs, plans, and specifications approved by Fulton in
accordance with paragraph 1.3 below,all checks,ditch turnouts,measuring gauges,or other facilities
necessary to allow water carried in the Ditch for South Adams and Denver to be delivered into South
Adams' and Denver's storage reservoirs located along the Ditch reach between 108`"Avenue and
120th Avenue.
1.3 Approval of Plans and Specifications. South Adams and Denver, and, if
appropriate contractual arrangements are reached with Thornton,Thornton, shall submit to Fulton
all construction designs, plans, and specifications for the headgate reconstruction and Ditch
improvements. Fulton shall have 30 days to review and approve such documents. If Fulton does
not approve them, the parties shall meet and attempt to resolve their differences concerning the
documents; provided, however, that if the parties cannot reach agreement as to the proper
construction designs, plans and specifications, then Fulton's engineering consultant and an
engineering consultant selected jointly by South Adams and Denver, and Thornton, if appropriate
contractual arrangements are reached with Thornton,shall select an independent consultant qualified
in matters of headgate and ditch design and construction. A majority of the three consultants shall
determine whether the documents will be approved, or will be revised.
1.4 Reimbursement for Construction Related Expenses. As noted above,Fulton
shall be responsible for obtaining, as owner, state and federal permits and approvals necessary to
allow reconstruction of the headgate,and construction of the Ditch lining and other facilities,subject
to reimbursement by Denver and South Adams. Denver and South Adams shall be required to
reimburse Fulton for all costs involved in such permitting and other construction related activities
by remitting payment within 30 days of receipt of invoices from Fulton detailing the costs and work
performed. Sums that are not timely paid shall bear interest at a rate of 10%per annum.
1.5 Responsibility for Design and Construction. With respect to the headgate
reconstruction and Ditch improvements,including concrete lining and ditch turnouts,South Adams
and Denver (or Denver and South Adams and Thornton, if Thornton participates in the
improvements)shall be solely responsible for obtaining all design,engineering,legal,construction,
transportation, and other services, as well as all rights of way or easements required from third
parties, and all materials needed for such construction. Fulton shall cooperate with South Adams
and Denver,at no cost to itself,to secure or confirm such rights as Fulton now holds and shall allow
access to South Adams and Denver or their agents or contractors to easements and rights-of-way that
it controls for purposes of design and construction. Fulton shall be responsible subject to
reimbursement for all associated costs, for obtaining any necessary permits from federal or state
agencies. South Adams and Denver (or Denver and South Adams and Thornton, if Thornton
participates in the improvements) will be responsible for obtaining any necessary construction
permits from Adams County or other local governments, including the Urban Drainage and Flood
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Control District. In addition, South Adams and Denver, and their engineers, consultants, and
contractors, shall coordinate all construction activities with Fulton and its superintendent, so as to
prevent disruptions of Ditch operations during construction. South Adams and Denver shall carry
out such construction during the period between November 15 and March 1 unless otherwise
approved by the parties in writing. South Adams and Denver shall hold Fulton harmless from and
defend Fulton against any and all claims of third parties resulting from construction of such Ditch
improvements, to the extent permitted by law, for a period of six years from the completion of
construction.
1.6 Approval of Construction and Determination of Capacity. When Fulton's
engineering consultant has inspected the completed improvements and has approved the construction
as completed in a good and workmanlike fashion, the parties' engineering consultants shall make
such determinations as they deem appropriate in order to certify that the capacity of the headgate and
the Ditch from its headgate to South Adams and Denver's first turnout between 108th Avenue and
approximately115th Avenue has been increased by at least 150 c.f.s., and, if Thornton has
participated in the Ditch improvements pursuant to appropriate agreements with South Adams and
Denver and Fulton, respectively, by at least 300 c.f.s. down to Thomton's turnout. If the actual
capacity of the headgate and the Ditch is less than required, Denver and South Adams shall have
the opportunity to propose and, if approved by Fulton(approval not to be unreasonably withheld),
carry out modifications or additional improvements to obtain the required capacity. If the actual
capacity is still less than required,then the carriage rights to be granted hereunder shall be reduced
by the amount that increase in capacity as certified by the parties'engineering consultants falls short
of 150 c.f.s.(if Thornton does not participate in the Ditch improvements)or by one-half the amount
that increase in capacity falls short of 300 c.f.s. (if Thornton does participate in the Ditch
improvements). If conditions permit such determination to be made on the basis of actual flow
measurements, that method shall be used. If not, the best engineering determination practically
available shall be used, and the determinations made shall thereafter be verified by actual flow as
soon as practical. Any material variation in actual capacity shall be used as the basis for adjustment
of the carriage right granted thereunder.
1.7 Maintenance of Ditch Improvements. After completion of construction Fulton
shall perform, or cause to be performed, all maintenance of the Ditch improvements. The actual
costs of such maintenance shall be borne as follows:
1.7.1 Fulton shall be responsible for the costs of routine Ditch and headgate
maintenance, which shall include ordinary ditch cleaning and other maintenance such as has been
performed upon the Ditch for the past century.
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1.7.2 South Adams and Denver shall be responsible for the costs of all
maintenance of checks, ditch turnouts, laterals, measuring gauges, or other facilities required to
deliver their water from the Ditch into their storage reservoirs.
1.7.3 If Thornton participates in the improvements described in Section 1.2
above,South Adams,Denver,and Thornton shall be responsible for all costs of repair,replacement,
or reconstruction of the Ditch lining to the Thornton turnout near 104th Avenue, and South Adams
and Denver shall be responsible for all such costs from that turnout to the end of the ditch lining,
including,but not limited to,repair or replacement necessitated by ditch cleaning;if Thornton does
not participate in the improvements, South Adams and Denver shall be responsible for all costs of
repair, replacement or reconstruction of the ditch lining for the entire reach.
1.7.4 Any maintenance, repair or reconstruction expense for the
reconstructed headgate in excess of$10,000 per year (subject to annual adjustment beginning on
December 31,2001 in accordance with the percentage change in the Consumer Price Index-Annual
Average,All Items-Denver-Metropolitan Area from 2000(being the base year)),shall be borne by
South Adams and Denver and any other parties carrying Foreign Water in the additional capacity
created pursuant to this Agreement pro rata to the average annual volume of Foreign Water carried
in the preceding ten years.In the event any such party has been carrying Foreign Water for less than
10 years prior to such required reimbursement,its proportionate share shall be based on the average
amount of Foreign Water carried for its benefit during the years since the commencement of its use
of the ditch for the carriage of its Foreign Water.
1.8 Insurance. Fulton, South Adams, and Denver shall each maintain liability
insurance coverage for the Ditch improvements provided for herein, in the amount of$2,000,000;
provided that Denver may provide self-insurance in the amount of$2,000,000. Each policy that a
party is obligated to maintain under this Agreement will name the other parties as additional
insureds, with no obligation on such additional insured to pay the premium for such coverage,and
all public liability and property damage liability policies maintained by one party will contain a
provision that the other parties,although named as insureds,will nevertheless be entitled to recover
under such policies for any loss sustained by it, its agents, or its employees as a result of the acts or
omissions of the other party. All such policies will provide that they may not be terminated or
amended except after 30 days' prior written notice to the additional insureds. All public liability,
property damage liability, and casualty policies maintained by one party will be written as primary
policies,will not be in excess of coverage that is provided by the other party or parties,and will only
require contribution when all parties are jointly negligent. All insurance required under this
Agreement may be provided through insurance,self insurance,or self insurance pool arrangements,
or a combination thereof.
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2. Carriage Rights.
2.1 Grant of Carriage Rights. Upon approval by Fulton of the Ditch
improvements described in Section 1 above, and payment of the consideration set forth below,
Fulton will grant permanent carriage rights to South Adams and Denver in the nature of an easement,
non-exclusive as specified herein, and without warranties, as follows:
2.1.1 Such grant of carriage rights to South Adams and Denver shall be
without warranties, except that Fulton warrants that it has not conveyed, assigned, encumbered or
otherwise alienated such carriage right to any other party. Fulton has previously entered into an
agreement for carriage of water in the Fulton's existing capacity with the City of Brighton but
Brighton's rights under that agreement do not extend to the additional capacity contemplated to be
constructed by South Adams and Denver hereunder, or by Thornton(if it participates in the Ditch
improvements pursuant to appropriate agreements).
2.1.2 Subject to the further provisions of thi s Agreement,including Fulton's
rights to maintain and operate the Ditch safely,South Adams and Denver shall be entitled to the use
of a total capacity of 150 c.f.s. (or such lesser amount as is attributable to the increased capacity
created by the Ditch Improvements described in Section 1 above)at the Fulton headgate and in the
Ditch from the headgate on the South Platte River to their first turnout below 108th Avenue,and such
capacity as it has added by construction of the improvements described in Section 1 above down to
their final turnout to carry their Foreign Water.
2.1.3 The total volume of Foreign Water to be carried by South Adams and
Denver pursuant to the carriage rights shall not exceed 200,000 acre-feet in any consecutive 10-year
period.
2.1.4 The carriage rights are nontransferable and may not be sold,conveyed,
transferred. or assigned by South Adams or Denver to any other person or entity except for a
corporate or governmental successor to South Adams or Denver's water utility function; nor may
the carriage rights be exercised by Denver or South Adams to carry Foreign Water. or cause it be
carried, for monetary consideration or gain, on behalf of or for the benefit of any other person or
entity, without prior written approval by Fulton.
2.1.5 If the City of Thornton enters into cost-sharing and carriage
agreements with South Adams and Denver and Fulton,respectively,by April 30,2001,and the Ditch
improvements described in Section 1 above result in an increase in Ditch capacity of at least 300
c.f.s. from the headgate to Thornton's turnout near 104th Avenue, at such times as Thornton is not
making use of the 150 c.f.s.capacity allocated to it, South Adams and Denver will be entitled to use
such capacity. Likewise, in such case, Fulton will agree to grant Thornton the right to use the 150
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c.f.s. capacity allocated to South Adams and Denver pursuant to this Agreement at such times as it
is not in use by South Adams and Denver. The right to "share" or "borrow" additional carriage
capacity as between South Adams,Denver and Thornton shall be strictly nontransferable,except to
a corporate or governmental successor to South Adams or Denver's water utility function nor may
the shared or borrowed capacity be used by Denver or South Adams to carry Foreign Water,or cause
it be carried,for monetary consideration or gain,on behalf of or for the benefit of any other person
or entity without prior written approval by Fulton.
2.1.6 Except for the sharing or borrowing of additional capacity between
South Adams, Denver, and the City of Thornton described in paragraph 2.1.5 above, any and all
additional capacity made available at the Fulton headgate and in the Ditch pursuant to the
improvements described in Section 1 above,shall be and remain the property of,and within the sole
control and disposition of, Fulton.
2.2 Consideration for Grant of Carriage Rights. The consideration for granting
the carriage rights described herein shall be as follows:
2.2.1 Funding and construction by South Adams and Denver of the Ditch
improvements described in Section 1 above, including the installation of improved headgates; the
installation of remote flow monitoring capability below the headgate; the creation of additional
capacity in the headgate that may be used for the benefit of Fulton and its stockholders; and the
potential reduction of aquatic weed growth resulting from the concrete lining; and
2.2.2 100 shares of the capital stock of Fulton, to be conveyed and
transferred to Fulton for retention as treasury stock. The shares of the stock will be conveyed to
Fulton at the Closing described below.
2.2.3 South Adams and Denver shall be stockholders in Fulton at the time
they convey and transfer Fulton shares to Fulton in consideration of this Agreement.
2.3 Closing. The Closing of the grant of carriage rights provided for herein shall
take place no later than 30 days after the approval of construction and determination of capacity set
forth in paragraph 1.6 above. Reimbursement to Fulton of all required costs and expenses shall be
required at or before the Closing. At Closing, the following shall occur:
2.3.1 Fulton shall deliver to South Adams and Denver a Carriage Right
Easement in the form attached hereto as Exhibit B [to be added] to this Agreement;
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2.3.2 South Adams and Denver shall deliver to Fulton duly executed Special
Warranty Deeds, stock assignments, and stock certificates for 100 shares of the capital stock of
Fulton, conveying the shares to Fulton free and clear of any and all liens and encumbrances.
3. Carriage Operations.
3.1 Carriage of Foreign Water. From and after the Closing described in paragraph
2.3.1 above, Fulton agrees that it shall carry Foreign Water of South Adams and Denver in
accordance with the carriage right to be granted hereunder, and the following additional
administrative provisions:
3.1.1 Carriage Charges. Beginning on December 15 of the calendar year
in which Foreign Water is first carried pursuant to this Agreement, South Adams and Denver shall
pay, in arrears, an annual carriage charge of$8.00 per acre-foot of Foreign Water carried, with a
minimum annual payment of$10,000 per year. The minimum annual payment shall pay for carriage
of the first 1250 acre-feet per year. Beginning on December 31, 2002 and on each December 31
thereafter,the minimum annual payment and the carriage charge shall be adjusted in accordance with
the change in the Average Consumer Price Index.-Annual Average,MI items-Denver-Boulder CO
since 2000.
3.1.2 Carriage Losses. South Adams and Denver shall bear carriage losses
(if any) upon the Foreign Water carried in the Ditch at the same rate as Fulton stockholders in the
reach of the Ditch in which the Foreign Water is carried (i.e. if there are no carriage losses in the
lined reach, no carriage losses will be assessed).
3.1.3 Notice of Carriage. South Adams and Denver shall provide notice
by noon of the prior day to Fulton's Superintendent of any requests for carriage of Foreign Water,
and of any change in the rate of carriage.
3.1.4 Canal Operations. All canal operations, including all operations of
the ditch headgate on the South Platte River, and all operations of the facilities to deliver South
Adams' and Denver's water carried in the canal into their storage facilities shall be carried out by
Fulton's Ditch Superintendent or employees under his supervision. Neither South Adams or Denver,
nor any of their agents or employees,shall participate in such operations,unless required by Fulton.
3.1.5 Maintenance Shut-Down. Fulton shall have the right to shut down
Ditch operations for a period of up to 30 days each year during the period from November 15th to
March P'to perform necessary ditch cleaning and maintenance. Fulton will use its best efforts to
give South Adams and Denver as much advance notice as possible of the time of the shutdown,and
in any event will give at least a week advance notice.
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3.1.6 Capacity Loss. Should the accumulation of silt, growth of weeds,or
other conditions restrict the capacity of the Ditch in the segment improved by South Adams and
Denver, Fulton will use its best efforts to remove such restrictions and restore the Ditch capacity.
However, any restriction in capacity existing at any time will be deducted from the Ditch capacity
to be made available to Denver and South Adams pursuant to this Agreement, or others carrying
Foreign Water in the Ditch.
3.1.7 Aquatic Weeds. The parties acknowledge that the growth of aquatic
weeds can diminish the carrying capacity of the Ditch and that weed control is an important
maintenance activity. The parties also agree that any harmful herbicide must be prevented from
reaching the South Platte River or other fish habitat. The parties anticipate that concrete lining in
the improved portion of the Ditch will prevent or minimize the growth of aquatic weeds in that
reach. Should weed growth in the improved reach restrict capacity,Fulton will consult with Denver
and South Adams(and Thornton if it participates in the Ditch improvements)to determine how best
to restore capacity. If Fulton agrees to use alternative methods proposed by Denver, South Adams,
or Thornton,that result in increased maintenance costs,then Denver and South Adams(or Denver
and South Adams and Thornton)will be responsible to pay the additional costs. If such alternative
methods prove to be ineffective in maintaining the carriage capacity of the Ditch,Fulton shall take
such measures, including the application of herbicides,as it determines appropriate to maintain the
carriage capacity of the Ditch. If Fulton determines to use herbicides to restore capacity,Fulton shall
provide reasonable notice to Denver and South Adams and Denver and South Adams shall take steps
necessary to control herbicide-treated water delivered to them in order to prevent its introduction into
the South Platte or other fish habitat. If Fulton determines to use herbicides to restore Ditch capacity
despite Denver's and South Adams' objection to the use of herbicides,then, so long as Denver and
South Adams control any herbicide-treated water delivered to them,and appropriately act to prevent
its introduction into the South Platte River or other fish habitat,Denver and South Adams shall bear
no liability for Fulton's decision to employ herbicides to restore carriage capacity in the Ditch.
3.1.8 Safe Operations. Fulton shall at all times endeavor to operate the Ditch so as
to prevent injury to persons or damage to property, and may at any time refuse to carry water as
requested by South Adams or Denver if, in the opinion of its superintendent, such carriage would
endanger persons or property.
3.1.9 Arrearages and Carriage Charges. Fulton shall not be required to and shall not
carry any water on behalf of South Adams or Denver at any time that any payments then due to
Fulton in respect to carriage charges or other required payments (including maintenance charges)
are in arrears, provided Fulton shall have previously provided notification to South Adams and
Denver of such arrearage.
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4. Conditions Precedent.
Requirement of Stockholder Approval. This Agreement is expressly contingent upon
approval and acceptance by majority vote of the stockholders of the Fulton Irrigating Ditch
Company at an annual or special meeting of the stockholders. The parties agree that the ordinary
and normal expense,including printing and mailing costs,room rentals,directors expenses,and legal
fees and other direct costs of any special meeting called at the request of South Adams and Denver
for the approval of this Agreement shall be reimbursed to Fulton entirely by South Adams and
Denver,regardless of the outcome of such Special Meeting.
5. General.
5.1 Interpretation. This Agreement shall be interpreted and enforced in light of
the premises hereof, with particular reference to the recitals set forth in paragraphs A-G hereof.
5.2 Joint and Several Obligations. The obligations of South Adams and Denver
provided for herein are joint and several, and Fulton may look to either or both of them for
fulfillment of such obligations.
5.3 Liability. Fulton shall not be responsible for injury to persons or damage to
property caused by Ditch operations or carriage of water for the benefit of South Adams or Denver,
and, to the extent permitted by law, South Adams and Denver will indemnify and hold Fulton
harmless for any such damages. Likewise, South Adams and Denver shall not be responsible for
injury to persons or damage to property caused by Fulton's operations and carriage of water for the
benefit of its stockholders or other third parties, and, to the extent permitted by law. Fulton will
indemnify and hold South Adams and Denver harmless for any such damages.
5.4 Force Majeure. This agreement is subject to force majeure. If a party shall
be delayed in. or prevented from, performing any of the terms, covenants or conditions of this
Agreement (other than the payment of money) by reason of fire, flood, earthquake. subsidence,
ground collapse or landslide,interruption or delay in transportation or power supply,strike,lock-out,
war. government law, order, regulation or interference, act of God or any other cause beyond such
party's reasonable control, then failure of such party so to perform shall not be deemed to be a
breach of this Agreement and the time within which such party is obliged to so perform shall be
extended by the total period of all such delays. The affected party shall use all reasonable diligence
to remove the cause of delay or prevention as quickly as possible; provided, however, that it shall
not be required to settle any strikes, lock-out, or other labor difficulty if it deems settlement to be
inadvisable. The affected party shall notify the other parties forthwith regarding each new cause of
delay or prevention resulting in the provisions of this paragraph becoming operative,specifying the
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particulars of such cause and the day upon which the same arose,and shall give like notice forthwith
following the date that such cause ceases to exist.
5.5 Attorney and Engineering Expenses. South Adams and Denver agree to pay
all attorney's fees and engineering expenses associated with the negotiation, drafting, and
effectuation of this Agreement.
5.6 Entire Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof, and shall not be altered, amended, or extended
except by an instrument executed by all parties.
5.7 Notices. Any notices that must be provided in writing concerning or pursuant
to this Agreement shall be addressed as follows:
If to Denver: City and County of Denver, acting by and
through its Board of Water Commissioners
Attn: Manager
1600 West 12th Avenue
Denver, Colorado 80254
If to South Adams: South Adams County Water and Sanitation District
Attn: Manager
6595 East 70th Avenue
Commerce City, Colorado 80037-0597
If to Fulton: Fulton Irrigating Ditch Company
c/o Brad Coover
25 South 4'" Avenue
Brighton, Colorado 80601
5.8 Oral Communications. Oral communications concerning this Agreement,
including directions or communications by South Adams or Denver concerning diversion and
carriage of water from time to time shall be as follows:
If to Denver: To: Raw Water Supply
Telephone: (303)628-6510
Facsimile: (303)628-6852
Followed by written or facsimile confirmation.
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If to South Adams: To: Manager
Telephone: (303) 288-2646
Facsimile: (303) 288-9531
Followed by written or facsimile confirmation.
If to Fulton: To: George McDonald, Superintendent
Telephone: (303) 288-1621
Followed by written confirmation.
The foregoing addresses may be changed by written notice.
5.9 Applicable Law and Venue. This Agreement is made in and shall be governed
by the laws of the State of Colorado. Venue for any legal action arising out of or concerning this
Agreement shall be in Adams County, Colorado.
5.10 Assignment. This Agreement shall not be assignable,except to any corporate
or governmental successor to South Adams or Denver's water utility function.
5.11 No Merger. Any and all continuing obligations under this Agreement shall
not be merged in any deeds delivered hereunder, but shall survive the Closing provided for
hereunder.
5.12 Authority. Each party represents that it has full authority to execute this
Agreement and has taken all steps necessary to obtain full authority.
5.13 Amendments. This Agreement may be amended by written agreement
approved by Denver, South Adams, and Fulton's Board of Directors; provided, however, that any
amendment that in the judgment of Fulton's Board of Directors, requires approval by Fulton's
stockholders pursuant to the amendment to Fulton's By-laws adopted January 25, 1999, shall only
be effective if approved by a majority of Fulton's stockholders at an annual or special meeting called
for that purpose.
5.14 Water Rights. The parties agree not to object in any forum,including Water
Court, to the carriage of Foreign Water by the parties hereto in the Fulton Ditch so long as such
carriage is in accordance with the terms and conditions of this Agreement.
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FULTON IRRIGATING DITCH COMPANY
By:
, Its
Date:
SOUTH ADAMS COUNTY WATER AND
SANITATION DISTRICT, a Colorado Special
District, also acting by and through its
Water and Sewer Enterprise
By:
, Its
Date:
CITY AND COUNTY OF DENVER
acting by and through its
ATTEST: BOARD OF WATER COMMISSIONERS
By: By:
Secretary President
APPROVED: REGISTERED AND COUNTERSIGNED:
Donald J. Mares, Auditor
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CITY AND COUNTY OF DENVER
Planning Division
Engineering Division
Legal Division
Date:
•
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AGREEMENT
THIS AGREEMENT is entered into this _ day of , 2001, by and
between the Fulton Irrigating Ditch Company,a Colorado mutual ditch company("Fulton")and the
City of Thornton("Thornton"), a Colorado municipal corporation.
RECITALS
A. Fulton owns and operates for the benefit of its shareholders the Fulton Ditch ("Ditch")
located in Adams and Weld Counties, Colorado, which includes a diversion dam and headgate on
the South Platte River in the NE1/4 of the SE'/ of Section 17,Township 2 South, Range 67 West of
the 6th P.M., in Adams County, Colorado. The capacity of the Ditch and its headgate is
approximately 230 c.f.s.
B. Thornton owns and operates a water supply system,which provides water to its inhabitants
and others within its water supply service area.
C. Thornton wishes to have Fulton divert into the Ditch water not attributable to Fulton's
decrees and carry such water to a ditch turnout for a water reservoir located near 104th Avenue(the
"Cooley East Pit")in Adams County,Colorado. Thornton will release water stored in the reservoir
to the South Platte River to effectuate water exchanges; it is not anticipated that Thornton will
deliver water carried through the Ditch to its customers for drinking water. Any water carried in the
Fulton Ditch pursuant to this Agreement shall be referred to as"Foreign Water." In order to allow
diversions and carriage of Thomton's Foreign Water in the Ditch, it is necessary for the capacity of
the Ditch and related facilities, including the headgate upon the South Platte River,to be enlarged
to accommodate an additional 150 c.f.s.
D. The South Adams County Water and Sanitation District and the City and County of Denver,
acting by and through its Board of Water Commissioners ("Denver and South Adams")have also
indicated a desire to have Fulton divert and carry Foreign Water in the Ditch to separate exchange
reservoirs being developed by those entities; in order to accommodate carriage of Denver's and
South Adams' Foreign Water,the capacity of the River headgate and Ditch and related facilities in
the reach to the Cooley East Pit, would need to be increased by an additional 150 c.f.s. Thornton
anticipates entering into a cost sharing arrangement with Denver and South Adams to effectuate
enlargement of the Ditch capacity to accommodate 300 additional c.f.s. at the headgate and in the
reach to the Cooley East Pit. The parties acknowledge that before participating in such cost sharing,
and before carrying Foreign Water in the Ditch,Denver and South Adams will be required to obtain
carriage rights, similar to those provided for herein for Thornton, from Fulton. Approval of any
carriage agreement with Denver and South Adams shall be at the absolute discretion of Fulton.
E. The parties have agreed in concept upon improvements that are expected to enlarge the
capacity of the Ditch in order to carry Thomton's Foreign Water in the Ditch, and carry Denver's
and South Adams' Foreign Water in the Ditch, should an agreement for such carriage be
consummated; consideration to be paid for the right to water carriage requested by Thornton; and
have agreed upon administrative arrangements and charges to govern the mechanics of carrying
Foreign Water for Thornton, all of which are set forth in this Agreement.
F. The parties recognize that the Colorado constitution, including Article XVI, Section 7,
provides for the acquisition of ditch rights of way, and C.R.S. §37-86-107 provides for the
acquisition of ditch rights of way, and authorize the enlargement or use of a ditch constructed by
another ditch owner,upon payment of a reasonable portion of the costs of construction of the ditch.
The parties recognize and agree that this agreement is made in lieu of and in full satisfaction of any
litigation or condemnation action that might have been brought by Thornton pursuant to the
Constitution and statutes to obtain the carriage provided for herein.
NOW THEREFORE, the parties hereto agree as follows:
1. Ditch Improvements.
1.1 Background. The parties anticipate that certain improvements to the Ditch,
including reconstruction of the headgate on the South Platte River as generally described in the
attached Exhibit A([preliminary headgate design—see RMC letter of April 3,2000 to Andrew Legg])
and concrete lining of a portion of the Ditch cross-section from the headgate to the ditch turnouts
at approximately 104th Avenue proposed by Thornton, will improve the function of the Ditch, by,
among other things, reducing the volume of silt entering the Ditch at the headgate, and possibly
reducing the growth of aquatic weeds in the Ditch, and will increase the Ditch capacity by
approximately 150 c.f.s.,from the headgate to the turnout at approximately 104th Avenue. They also
anticipate that lining the full Ditch cross-section (e.g. from ditch bank to ditch bank)will increase
the capacity by approximately 300 c.f.s. The parties agree, therefore, that if Denver and South
Adams enter into cost sharing arrangements with Thornton, and into a carriage agreement with
Fulton by April 30, 2001, then the headgate and Ditch improvements to be carried out pursuant to
this agreement shall be required to yield additional capacity of 300 c.f.s.; otherwise the
improvements shall be required to yield only 150 c.f.s. of additional capacity.
1.2 Headgate Reconstruction and Ditch Lining. Fulton, as owner of the Ditch
System, shall undertake obtaining all necessary permits and shall have final responsibility for
approving and authorizing the project for the reconstruction of the headgate,lining of the Ditch,and
ancillary construction work, subject to reimbursement by Thornton for all expenses, including
attorneys and engineering fees involved in such activities. Thornton,on behalf of Fulton as owner,
and in accordance with any cost-sharing or other arrangements it may make with Denver and South
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Adams shall contract for and be responsible for the completion of the reconstruction of the headgate,
the lining of the Ditch,and the reconstruction of associated facilities in the lined section of the Ditch.
Said project shall be at Thornton's(or Thornton's,Denver's and South Adams') sole cost and risk,
and in accordance with construction design,plans, and specifications approved in accordance with
¶1.3 below, subject to the following provisions:
1.2.1 It is anticipated that the headgate reconstruction will be generally as
set forth in the preliminary design attached hereto as Exhibit A and will include a new measuring
flume to measure the diversions into the Ditch; however, Fulton shall be free to specify the design
of the headgate facilities at its discretion, so long as (1)the reconstruction headgate will allow the
diversion into the Ditch of a total of at least the current capacity plus 150 c.f.s. (estimated to total
approximately 380 c.f.s.), or, if Denver and South Adams participate in the Ditch improvements
pursuant to appropriate agreements entered into with Thornton and with Fulton respectively by April
30,2001,at least the current capacity plus 300 c.f.s.(estimated to total approximately 530 c.f.s.);and
(2)modifications do not result in an unreasonable increase in design,construction,or maintenance
costs for the headgate structure.
1.2.2 The Ditch lining shall be completed in accordance with construction
designs,plans and specifications approved by Fulton in accordance with¶1.3 below,and will include
a concrete liner and associated structure sufficient to increase the capacity of the Ditch from its
headgate to approximately 104th Avenue by at least 150 c.f.s., or if Denver and South Adams
participate in the Ditch improvements pursuant to appropriate agreements entered into with Thornton
and Fulton. respectively by April 30, 2001, 300 c.f.s. to Thomton's turnout. The parties
acknowledge that to the extent necessary,the Ditch lining project will include(1)determination of
the current(unlined)ditch capacity in the reach being lined;and(2)reconstruction of existing flood
control structures,turnouts(headgates)in the Ditch reach being lined,and/or construction of check
structures for such headgates to provide them with at least equivalent capacity to divert water.
1.2.3 Thornton shall construct at its full costs and risk, and in accordance
with construction designs, plans, and specifications approved by Fulton in accordance with ¶1.3
below, all checks, ditch turnouts, measuring gauges, or other facilities necessary to allow water
carried in the Ditch for Thornton to be delivered into Thornton's storage reservoir located at
approximately 104th Avenue (Cooley East Gravel Pit).
1.3 Approval of Plans and Specifications. Thornton and, if appropriate
contractual arrangements are reached with Denver and South Adams, Denver and South Adams,
shall submit to Fulton all construction designs, plans, and specifications for the headgate
reconstruction and Ditch improvements. Fulton shall have 30 days to review and approve such
documents. If Fulton does not approve them, the parties shall meet and attempt to resolve their
differences concerning the documents;provided,however,that if the parties cannot reach agreement
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as to the proper construction designs,plans and specifications,then Fulton's engineering consultant
and an engineering consultant selected jointly by Thornton and Denver and South Adams, (if
appropriate contractual arrangements are reached with Denver and South Adams,) shall select an
independent consultant qualified in matters of headgate and ditch design and construction. A
majority of the three consultants shall determine whether the documents will be approved or will be
revised.
1.4 Reimbursement for Construction Related Expenses. As noted above,Fulton
shall be responsible for obtaining, as owner, state and federal permits and approvals necessary to
allow reconstruction of the headgate,and construction of the Ditch lining and other facilities,subject
to reimbursement by Thornton. Thornton shall be required to reimburse Fulton for all costs involved
in such permitting and other construction related activities by remitting payment within 30 days of
receipt of invoices from Fulton detailing the costs and work performed. Sums that are not timely
paid shall bear interest at 10%per annum.
1.5 Responsibility for Design and Construction. With respect to the Ditch
improvements, including the headgate reconstruction, concrete lining and ditch turnouts, for the
construction of which Thornton is responsible, it (or it and Denver and South Adams, if they
participate in the improvements) shall be solely responsible for obtaining all design, engineering,
legal, construction, transportation,and other services,as well as all construction permits, rights of
way,or easements required from third parties,and all materials needed for such construction. Fulton
shall cooperate with Thornton,at no cost to itself,to secure or confirm such rights of way as it now
holds, and shall allow access to Thornton, or its agents or contractors, for purposes of design and
construction, to easements and rights of way it holds. Fulton shall be responsible, (subject to
reimbursement by Thornton for all associated costs)for obtaining any necessary permits from federal
or state agencies. Thornton (or Thornton and Denver and South Adams if they participate in the
improvements) shall be responsible for obtaining any necessary construction permits from Adams
County or other local governments, including the Urban Drainage and Flood Control District. In
addition, Thornton and its engineers,consultants, and contractors,shall coordinate all construction
activities with Fulton and its superintendent,so as to prevent disruptions of Ditch operations during
construction. Thornton shall carry out such construction during the period between November 15
and March 1 unless otherwise approved by Fulton in writing. Thornton shall hold Fulton harmless
from and defend Fulton against any and all claims of third parties resulting from construction of such
Ditch improvements, to the extent permitted by law.
1.6 Approval of Construction and Determination of Capacity. When Fulton's
engineering consultant has inspected the completed improvements and has approved the construction
as completed in a good and workmanlike fashion, the parties' engineering consultants shall make
such measurements as they deem appropriate in order to certify that the capacity of the headgate and
the Ditch from its headgate to approximately 104'h Avenue has been increased by at least 150 c.f.s.
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or,if Denver and South Adams have participated in the Ditch improvements pursuant to appropriate
agreements with Thornton and Fulton,respectively, has been increased by at least 300 c.f.s. If the
actual capacity of the headgate and the Ditch from the headgate to approximately 104t Avenue is
less than required,then Thornton shall have the opportunity to propose and, if approved by Fulton
(approval not to be unreasonably withheld),carry out modifications or additional improvements to
obtain the required capacity. If the actual capacity remains less than required, then the carriage
rights to be granted hereunder shall be reduced by the amount that the actual increase in capacity as
certified by the parties'engineering consultants falls short of 150 c.f.s.(if Denver and South Adams
do not participate in the Ditch improvements)or by one-half the amount that the increase in capacity
falls short of 300 c.f.s. (if Denver and South Adams do participate in the Ditch improvements).
1.7 Maintenance of Ditch Improvements. After completion of construction Fulton
shall perform, or cause to be performed, all maintenance of the Ditch improvements. The actual
costs of such maintenance shall be borne as follows:
1.7.1 Fulton shall be responsible for the costs of routine Ditch and headgate
maintenance, which shall include ordinary ditch cleaning and other maintenance such as has been
performed upon the Ditch for the past century.
1.7.2 Thornton shall be responsible for the costs of all maintenance of
checks, ditch turnouts, laterals, measuring gauges, or other facilities required to deliver its water
from the Ditch into its storage reservoir below the Ditch.
1.7.3 Thornton (or, if Denver and South Adams participate in the Ditch
improvements described in Section 1.2 above,Thornton,Denver,and South Adams jointly)shall be
responsible for all costs of repair,replacement, or reconstruction of the Ditch lining to its turnouts
at approximately 104th Avenue,including,but not limited to, repair or replacement necessitated by
ditch cleaning. Fulton shall use its best efforts, consistent with reasonable ditch maintenance
practices, not to disturb the Ditch lining.
1.7.4 Any maintenance, repair, or reconstruction expense for the
reconstructed headgate in excess of$10,000 in one year(subject to annual adjustment beginning on
December 31,2001 in accordance with the percentage change in the Consumer Price Index-Annual
Average,All Items-Denver-Metropolitan Area from 2000(being the base year)),shall be borne by
Thornton and any other parties carrying Foreign Water in the additional capacity created pursuant
to this Agreement pro rata to the average annual volume of Foreign Water carried in the preceding
ten years. In the event any such party has been carrying Foreign Water for less than 10 years prior
to such required reimbursement, its proportionate share shall be based upon the average amount of
Foreign Water carried for its benefit during the years since the commencement of the use of the
Ditch for the carriage of its Foreign Water.
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1.8 Insurance. Fulton and Thornton shall each maintain liability insurance
coverage for the Ditch improvements provided for herein,in the amount of$2,000,000. Each policy
that a party is obligated to maintain under this Agreement will name the other parties as additional
insureds,and all public liability and property damage liability policies maintained by one party will
contain a provision that the other parties,although named as insureds,will nevertheless be entitled
to recover under such policies for any loss sustained by it,its agents,or its employees as a result of
the acts or omissions of the other party. All such policies will provide that they may not be
terminated or amended except after 30 days' prior written notice to the additional insureds. All
public liability, property damage liability, and casualty policies maintained by one party will be
written as primary policies, will not be in excess of coverage that is provided by the other party or
parties, and will only require contribution when all parties are jointly negligent. MI insurance
required under this Agreement may be provided through insurance,self insurance,or self insurance
pool arrangements, or a combination thereof.
2. Carriage Rights.
2.1 Grant of Carriage Rights. Upon approval by Fulton of the improvements
described in Section 1 above, and payment of the consideration set forth below, Fulton will grant
permanent carriage rights to Thornton in the nature of a non-exclusive easement, to the extent
allowed by law,and without warranties, as follows:
2.1.1 Terms and Conditions of Carriage.
2.1.1.1 Carriage Capacity. Subject to the further provisions of this
Agreement, and to Fulton's rights to maintain and operate the Ditch safely, Thornton shall be
entitled to the first and paramount use of a total capacity of 150 c.f.s. (or such lesser amount as is
attributable to the increased capacity created by the Ditch improvements described in Section 1
above)in the Ditch from and including its headgate on the South Platte River to Thornton's turnout
at approximately 104th Avenue to carry its Foreign Water.
2.1.1.2 Volume. The volume of Foreign Water to be carried by
Thornton pursuant to the carriage rights shall not exceed 50,000 acre-feet in any consecutive 10-year
period.
2.1.1.3 Nontransferable. The carriage rights are nontransferable and
may not be sold,conveyed,transferred,or assigned by Thornton to any other person or entity except
a successor to Thornton's water supply function; nor may the carriage rights be exercised by
Thornton to carry Foreign Water, or cause it to be carried, for monetary consideration or gain, on
behalf of or for the benefit of any other person or entity without prior written approval by Fulton.
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2.1.1.4 Sharing of Capacity with Denver and South Adams. If Denver
and South Adams enter into cost-sharing and carriage agreements with Thornton and Denver and
Fulton,respectively, by April 30, 2001, and the Ditch improvements described in Section 1 above
result in an increase in Ditch capacity of at least 300 c.f.s. from the headgate to approximately 104th
Avenue, at such times as Denver and South Adams are not making use of the 150 c.f.s. capacity
allocated to them, Thornton will be entitled to such capacity. Likewise, in such case, Fulton will
agree to grant Denver and South Adams the right to use the 150 c.f.s.capacity allocated to Thornton
pursuant to this Agreement at such times as it is not in use by Thornton;provided,however,that in
no case shall such"shared"or"borrowed"capacity be used by South Adams,Denver,or Thornton
to carry Foreign Water,or cause Foreign Water to be carried for monetary consideration or gain on
behalf of, or for the benefit of, any third party without prior written approval by Fulton. The right
to"share"or"borrow"additional carriage capacity as between South Adams,Denver and Thornton
shall be strictly nontransferable.
2.1.1.5 Except for the sharing or borrowing of additional capacity
between South Adams,Denver,and the City of Thornton described in paragraph 2.1.1.4 and subject
to Thornton's rights set forth in Paragraph 2.1.1.1 above, any and all additional capacity made
available at the Fulton headgate and in the Ditch pursuant to the improvements described in Section
1 above,shall be and remain the property of,and within the sole control and disposition of,Fulton.
2.2 Consideration for Grant of Carriage Rights. The consideration for granting
the carriage rights described herein shall be as follows:
2.2.1 Funding and construction by Thornton in accordance with the
provisions of Section 1 above of the Ditch improvements described in Section 1 above, including
the installation of improved headgates to minimize the introduction of silt into the Ditch; the
installation of remote flow monitoring capability upon the headgate; the creation of additional
capacity in the headgate that may be used for the benefit of Fulton and its stockholders; and the
potential reduction of aquatic weed growth resulting from the concrete lining; and
2.2.2 25 shares of the capital stock of Fulton,to be purchased from willing
sellers and then conveyed and transferred to Fulton free and clear of liens and encumbrances for
retention as treasury stock within five years after completion of the Ditch improvements described
in Section 1 above, or, if Thornton is unable to obtain and convey such shares within that time
period, the sum of$10,000 (subject to annual escalation in accordance with the Consumer Price
Index. Denver Metropolitan Area) for each share Thornton is unable to convey to Fulton. The
parties acknowledge that the agreed-upon sum of$10,000.00 per share to be paid should Thornton
fail to procure actual shares for transfer does not represent the current market price for Fulton shares.
Further,the parties agree that Thornton shall become and shall remain a stockholder in Fulton.
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2.3 Closing.
2.3.1 An Escrow Closing of the grant of carriage rights provided for herein
shall take place no later than 30 days after the approval of construction and determination of capacity
set forth in paragraph 1.6 above. At the Escrow Closing,the following shall occur:
(a) Fulton shall deliver into Escrow an executed Non-Exclusive Carriage
Right Easement,to the extent allowed by law and without warranties in the form attached hereto as
Exhibit B [to be added] to this Agreement;
(b) Thornton shall deposit into escrow the sum of$250,000 ;
(c) The parties shall enter into an Escrow Agreement with a mutually
agreeable Escrow Agent in accordance with paragraph 2.3.2
2.3.2 Escrow. The Escrow Agreement to be entered into at Closing shall
provide for a five year escrow period, during which the Escrow Agent shall remit the sum of
$10,000. from the sum deposited into escrow,plus interest accrued thereon,to Thornton whenever,
during the escrow period, Thornton delivers evidence of its conveyance to Fulton of one(1) share
of the capital stock of Fulton free and clear of all liens and encumbrances. At the end of the escrow
period,the Escrow Agent shall (1) deliver any sums remaining in escrow, plus all interest accrued
thereon, to Fulton, and (2) deliver the Non-Exclusive Carriage Right and Easement to Thornton.
3. Carriage Operations. From and after the termination of the Escrow described in
paragraph 2.3.2 above, Fulton agrees that it shall carry Foreign Water of Thornton in accordance
with the carriage right to be granted hereunder, and the following additional administrative
provisions:
3.1 Annual Carriage Charge. Beginning on December 15 of the calendar year in
which Foreign Water is first carried pursuant to this Agreement, Thornton shall pay in arrears, an
annual carriage charge of$8.00 per acre-foot of Foreign Water carried. Beginning on December 31,
2002,and on each December 31 thereafter,the carriage charge shall be adjusted in accordance with
the change in the Average Consumer Price Index-Annual Average,All Items,Denver-Boulder,CO,
since 2000.
3.2 Carriage Losses. Thornton shall bear carriage losses(if any)upon the Foreign
Water carried in the Ditch at the same rate as Fulton stockholders in the reach of the Ditch in which
the Foreign Water is carried(i.e. if there are no carriage losses in the lined reach,no carriage losses
will be assessed).
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3.3 Notice of Carriage. Thornton shall provide at least 24 hours notice to Fulton's
Superintendent of any requests for carriage of Foreign Water, and of any change in the rate of
carriage.
3.4 Canal Operations. All canal operations,including all operations of the ditch
headgate on the South Platte River, and all operations of the facilities to deliver Thomton's water
carried in the canal into its storage facilities shall be carried out by Fulton's Ditch Superintendent
or employees under his supervision. Neither Thornton, nor any of its agents or employees, shall
participate in such operations without the prior written consent of Fulton.
3.5 Maintenance Shut-Down. Fulton shall have the right to shut down Ditch
operations for a period of up to 30 days each year during the period from November 15th to March
151 to perform necessary ditch cleaning and maintenance. Fulton will use its best efforts to give
Thornton as much advance notice of such scheduled maintenance as possible,and will in any event
give one week's notice;provided, however,that if on a case by case basis Thornton can guarantee
that carriage of its Foreign Water during this period (or parts thereof)will not interfere with Ditch
maintenance operations, then Thornton may be allowed to carry Foreign Water during the annual
shut-down period.
3.6 Capacity Loss. Should the accumulation of silt, growth of weeds, or other
conditions restrict the capacity of the Ditch, Fulton will use its best efforts to remove such
restrictions and restore the Ditch capacity. However,any restriction in capacity existing at any time
will be deducted from the Ditch capacity to be made available to Thornton or others carrying Foreign
Water in the Ditch.
3.7 Aquatic Weeds. The parties acknowledge that the growth of aquatic weeds
can diminish the carrying capacity of the Ditch and that weed control is an important maintenance
activity. The parties also agree that any harmful herbicide must be prevented from reaching the
South Platte River or other fish habitat. The parties anticipate that concrete lining in the improved
portion of the Ditch will prevent or minimize the growth of aquatic weeds in that reach. Should
weed growth in the improved reach restrict capacity,Fulton will consult with Thornton(and Denver
and South Adams if they participate in the Ditch improvements)to determine how best to restore
capacity. If Fulton agrees to use alternative methods proposed by Thornton, Denver, or South
Adams, that result in increased maintenance costs,then Thornton(or Thornton,Denver and South
Adams) will be responsible to pay the additional costs. If such alternative methods prove to be
ineffective in maintaining the carriage capacity of the Ditch, Fulton shall take such measures,
including the application of herbicides,as it determines appropriate to maintain the carriage capacity
of the Ditch. If Fulton determines to use herbicides to restore capacity, Fulton shall provide
reasonable notice to Thornton and Thornton shall take steps necessary to control herbicide-treated
water delivered to it in order to prevent its introduction into the South Platte or other fish habitat.
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If Fulton determines to use herbicides to restore Ditch capacity despite Thomton's objection to the
use of herbicides,then,so long as Thornton controls any herbicide-treated water delivered to it,and
appropriately acts to prevent its introduction into the South Platte River or other fish habitat,
Thornton shall bear no liability for Fulton's decision to employ herbicides to restore carriage
capacity in the Ditch.
3.8 Safe Operations. Fulton shall at all times endeavor to operate the Ditch so as
to prevent injury to persons or damage to property, and may at any time refuse to carry water as
requested by Thornton if,in the opinion of its superintendent,such carriage would endanger persons
or property.
3.9 Arrearages and Carriage Charges. Fulton shall not be required to and shall
not carry any water on behalf of Thornton at any time that any payments then due to Fulton in
respect to carriage charges or other required payments (including maintenance charges) are in
arrears.
4. Conditions Precedent. This Agreement is expressly contingent upon approval and
acceptance by majority vote of the stockholders of the Fulton Irrigating Ditch Company at an annual
or special meeting of the stockholders. The parties agree that the expense, including printing and
mailing costs,room rentals, directors expenses, and legal fees and other direct costs of any special
meeting called at the request of Thornton for the approval of this Agreement shall be reimbursed to
Fulton entirely by Thornton, regardless of the outcome of such Special Meeting.
5. Termination. If, during the design or construction of the Ditch improvements
described in Section 1 above, Thornton determines that it is impractical or uneconomic to proceed
with the Ditch improvements required,it may terminate this Agreement by written notice to Fulton
and payment of any costs and expenses incurred by Fulton to the date of termination. In such case
this Agreement shall terminate and Thornton shall have no interest or claim for carriage of water in
the Ditch.
6. General.
6.1 Interpretation. This Agreement shall be interpreted and enforced in light of
the premises hereof,with particular reference to the recitals set forth in paragraphs A-E hereof.
6.2 Liability. Fulton shall not be responsible for injury to persons or damage to
property caused by Ditch operations or carriage of water for the benefit of Thornton, and, to the
extent permitted by law, Thornton will indemnify and hold Fulton harmless for any such damages.
Likewise, Thornton shall not be responsible for injury to persons or damage to property caused by
Fulton's operations and carriage of water for the benefit of its stockholders or other third parties,
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and,to the extent permitted by law,Fulton will indemnify and hold Thornton harmless for any such
damages.
6.3 Force Majeure. This Agreement is subject to force majeure. If a party shall
be delayed in, or prevented from, performing any of the terms, covenants, or conditions of this
Agreement (other than the payment of money) by reason of fire, flood, earthquake, subsidence,
ground collapse or landslide,interruption or delay in transportation or power supply,strike,lock-out,
war, government law, order, regulation or interference, act of God or any other cause beyond such
party's reasonable control, then failure of such party so to perform shall not be deemed to be a
breach of this Agreement and the time within which such party is obliged so to perform shall be
extended by the total period of all such delays. the affected party shall use all reasonable diligence
to remove the cause of delay or prevention as quickly as possible; provided, however, that it shall
not be required to settle any strikes, lock-out, or other labor difficulty if it deems settlement to be
inadvisable. The affected party shall notify the other parties forthwith regarding each new cause of
delay or prevention resulting in the provisions of this paragraph becoming operative,specifying the
particulars of such cause and the day upon which the same arose;and shall give like notice forthwith
following the date that such cause ceases to exist.
6.4 Attorney's and Engineering Expenses. Thornton agrees to pay all reasonable
attorney's fees and engineering expenses associated with the negotiation,drafting,and effectuation
of this Agreement.
6.5 Entire Agreement. This agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof, and shall not be altered, amended, or extended
except by an instrument executed by both parties.
6.6 Notices.
6.6.1 Written Notices. Any notices that must be provided in writing
concerning or pursuant to this agreement shall be addressed as follows:
If to Thornton: City of Thornton
Attn: City Manager
9500 Civic Center Drive
Thornton, Colorado 80229
If to Fulton: Fulton Irrigating Ditch Company
c/o Brad Coover
25 South 4th Avenue
Brighton, Colorado 80601
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6.6.2 Oral Communications. Oral communications concerning this
agreement,including directions or communications by Thornton concerning diversion and carriage
of water from time to time shall be as follows:
If to Thornton: To: Water Resources Manager
Telephone: (303) 538-7209
Facsimile: (303) 538-7327
Followed by written or facsimile confirmation.
If to Fulton: To: George McDonald, Superintendent
Telephone: (303)288-1621
Followed by written confirmation.
The foregoing addresses may be changed by written notice.
6.7 Applicable Law and Venue. This agreement is made in and shall be governed
by the laws of the State of Colorado. Venue for any legal action arising out of or concerning this
agreement shall be in Adams County, Colorado.
6.8 Assignment. This agreement shall not be assignable.
6.9 No Merger. Any and all continuing obligations under this agreement shall
not be merged in any deeds delivered hereunder, but shall survive the Closing provided for
hereunder.
6.10 Authority. Each party represents that it has full authority to execute this
Agreement and has taken all steps necessary to obtain full authority.
6.11 Amendments. This Agreement may be amended by written agreement
approved by Thornton and Fulton's Board of Directors;provided,however,that any amendment that
in the judgment of Fulton's Board of Directors,requires approval by Fulton's stockholders pursuant
to the amendment to Fulton's By-laws adopted January 25, 1999,shall only be effective if approved
by a majority of Fulton's stockholders at an annual or special meeting called for that purpose.
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FULTON IRRIGATING DITCH COMPANY CITY OF THORNTON
By: By:
, Its Jack Etheredge, Its City Manager
Date: Date:
Attest:
Nancy Vincent, City Clerk
Approved as to Form:
Margaret Emerich,
City Attorney
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