HomeMy WebLinkAbout20000123 RESOLUTION
RE: APPOINT DELEGATE TO REPRESENT WELD COUNTY AT ANNUAL MEETING OF
THE FULTON IRRIGATING DITCH COMPANY
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 annual meeting of the Fulton Irrigating Ditch Company, which is
scheduled for January 24, 2000, and
WHEREAS, the Board deems it advisable to appoint Frank Hempen, Jr., Director of
Public Works, 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 Frank Hempen, Jr., Director of Public Works, be, and hereby is,
appointed as the delegate to represent Weld County at the annual meeting of the Fulton
Irrigating Ditch Company, said meeting being scheduled for January 24, 2000.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign the proxy appointing Frank Hempen, Jr., to represent Weld County at said annual
meeting.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 17th day of January, A.D., 2000.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
tr
ATTEST:
arbara J. kmeyer, Chair
4'
Weld County Clerk to t �:o .i.
,8S,
` ;� tV 'M. J. eile,Pro-Tern
BY: ✓Z, lc ,."< s1r 1,
Deputy Clerk to the ? T
l MI 1 org . Baxter L am-'
APPROVED AST -M: 7
c Dale . Hall
County Attorne /0-1e9\
Glenn Vaa
2000-0123
PC: 6-4- BC0029
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
Notice is hereby given that the annual meeting of the stockholders of the Fulton Irrigating Ditch
Company will be held in the Community Room in the basement of NORWEST BANK (use west door),
located at 15 South Main Street, Brighton, Colorado, on MONDAY, JANUARY 24, 2000, AT 1:30
o'clock in the afternoon for the election of five directors and for the transaction of such other business as
may properly come before the meeting.
The Board of Directors are presenting the following proposition:
An Agreement between the City of Brighton and Fulton Irrigating Ditch Company wherein the City
of Brighton will be able to use only the excess capacity of the Ditch to carry water in return for payment to
the Ditch Company of$100,000 plus $20 per acre foot for each acre foot of foreign water actually carried,
and certain maintenance and weed control charges.
See proposed Agreement attached as Exhibit "A" and incorporated herein.
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: Walter Dittmer, 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, December 16, 1999.
John Thimmig, 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: Frank Hempen, Jr. , Director of Public Works
my true and lawful attorney, with power of substitution for me and in my name to vote at the annual
meeting of the stockholders of said company to be held MONDAY, JANUARY 24, 2000, at 1:30 o'clock
in the afternoon at NORWEST BANK, 15 South Main Street, Brighton, Colorado, or at any adjournment
or continuation thereof, with all the powers I should possess if personally present, hereby revoking all
previous proxies.
ignature of Stockholder
Shares Barbara J. Kirkmeyer, Chair
01/17/00 Date
2000-0123
AGREEMENT
This Agreement is entered into this ; ^, day of __,1/4.4,"Crn 7' , tan R, by and between
the Fulton Irrigating Ditch Company, a Colorado mutual ditchcbmpany("Fulton"),and the City of
Briehton. a Colorado municipal corporation ("Brighton").
1. RECITALS
1.1 Fulton owns and operates for the benefit of its stockholders the Fulton Ditch, which
diverts water from the South Platte River in Adams County. Colorado, for conveyance to lands
located generally east of the South Plane River and north of the canal diversion structure in Adams
and Weld Counties, Colorado.
1.2 Brighton owns and operates a municipal water supply system to provide municipal
water supply to its citizens. Brighton is in the process of developing water storage facilities capable
of being filled by diversions through the Fulton Ditch(the`Bromley Ponds"). Brighton anticipates
using water derived from its stock ownership in Fulton, and water derived from other sources
("Foreign Water") to fill the Bromley Ponds. Brighton wishes to provide for carriage through the
Fulton Ditch of its Foreign Water to the Bromley Ponds,or to other storage facilities it may develop
that are capable of being filled out of the Fulton Ditch.
2. DEFINITIONS
2.1 Foreign Water. For purposes of this Agreement, "Foreign Water"means water that
is not diverted:(a) upon the Fulton Ditch Priorities;or(b)during free river conditions at the request
of. and for delivery to, Fulton stockholders in satisfaction of their rights as stockholders.
2.2 Excess Capacity, For purposes of this Agreement "Excess Capacity" means that
capacity existing from time to time in the Fulton Ditch above and beyond what is needed in order
to carry (1) all waters available for diversion upon the Fulton Ditch Priorities that is called for or
demanded by the stockholders of Fulton; and(2) all water available for diversion during free river
conditions that is called for or demanded by stockholders of Fulton in satisfaction of their rights as
stockholders. The Excess Capacity in the Fulton Ditch is expected to vary significantly from day
to day, and at times there may be no Excess Capacity in the Fulton Ditch. The amount of Excess
Capacity shall be determined, from day to day as appropriate, by Fulton in consultation with its
Superintendent or such other officials and persons as it deems appropriate,having regard to(1)flow
conditions in the South Platte River; (2) stockholders' demands; and(3) the safe carrying capacity
- 1 -
•
of the Fulton Ditch from day to day, and in each reach of the Ditch (including the headgate on the
South Platte River) affected by the carriage of Foreign Water hereunder.
2.3 Fulton Ditch Priorities. For purposes ofthis Agreement.the"Fultort Ditch Priorities"
are the following water right priorities:
Priority No. App'n Date Amount Decree date I Court Case Number
3 /1/1365 79.70 c.f.s. 4/2_3/1333 Arapahoe 5009
County
District
Court
43 7/3/1376 74.25 c.f.s. 4/23/1333 Arapahoe 6009
County
District
Court
51 11/5/1379 50.23 c.f.s. 4/23/1333 Arapahoe 6009
County
District
Court
2.4 Operation and Maintenance Costs. For purposes of this Agreement,"Operation and
Maintenance Costs" means all expenses incurred in the operation and maintenance of the Fulton
Ditch,except all expenses incurred in carrying out aquatic weed treatments. For many years,Fulton
has issued an annual Financial Report after the close of the calendar year, in the general format
shown on the attached Exhibit . So So long as Fulton continues to issue an annual Financial
Report to its stockholders in the general format historically used. the annual "Operation and
Maintenance Costs"applicable to this Agreement shall be determined.in arrears,by subtracting from
the expenses set forth in Fulton's annual Financial Report(1) any transfers of money to savings or
other investments. and(2) all expenses incurred in carrying out aquatic weed treatments.
3. OPTION
3.1 For and inconsideration ofthe sum of Six Thousand Five Hundred dollars($6500.00)
in hand paid. the receipt and sufficiency of which is hereby acknowledged,Fulton hereby grants to
Brighton an option to acquire in accordance with the further terms and conditions of this Agreement
the First Right to divert and carry Foreign Water into and through the Fulton Ditch at such times as
there exists Excess Capacity within the Fulton Ditch.
3.2 Option Term. The term of the option granted hereby shall be for one (1) year from
the effective date of this Agreement.
3.3 Option Extensions. The option granted herein may be extended at Brighton's
discretion for two(2)successive one(1)year terns upon the payment,prior to the expiration of each
successive option period, of the sum of Two Thousand and Five Hundred Dollars(5,:00.00), plus
all legal expenses incurred by Fulton in connection with this Agreement.
3.4 Option Exercise. The option granted hereby may be exercised by providing written
notice of exercise to Fulton prior to the expiration of the option term.
3.5 Back Up Agreements. Nothing in this Agreement shall prohibit Fulton from entering
into (a) short-term. (no more than one (1) year)contracts for a carriage of Foreign Water in Excess
Capacity for and on behalf of any party during the period of the option granted herein: (b) back up
contracts for the acquisition of carriage rights for Foreign Water by any other party should Brighton
not exercise the option granted herein:(c)contracts for the acquisition of carriage rights by any other
party that are junior or subordinate to the rights optioned to Brighton hereunder.
4. CARRIAGE RIGHTS
4.1 Fulton agrees to grant to Brighton upon proper exercise of the option described herein
the First Right to divert and carry Foreign Water into and through Excess Capacity in the Fulton
Ditch upon the further terms and conditions of this Agreement.
4.2 Price. The purchase price for the carriage rights to be granted hereunder shall be:
4.2.1 Initial Payment. There shall be an initial payment of One Hundred Thousand
Dollars ($100,000.00).
4.2.2 Carriage Charge. There shall be a carriage charge of Twenty Dollars($2.0.00)
per acre-foot for each acre-foot of Foreign Water actually carried, subject to periodic escalation as
set forth in Paragraph 4.5, below.
4.2.3 Operation and Maintenance Charge. There shall be an annual operation and
maintenance charge determined by multiplying the actual annual operation and maintenance costs
for a particular year by a fraction, the numerator of which is the number of acre-feet of Foreign
Water carried for Brighton in the Ditch in that year and the denominator of which is the total number
of acre-feet of water carried in the Fulton Ditch in that year.
4.2.4 Weed Treatment Charges. There shall be an annual weed treatment charge
equal to: (a) that portion of the cost of each aquatic weed treatment carried out by Fulton in the
- 3 -
months of June. July or August determined by multiplying the total weed treatment cost for each
month by a fraction, the numerator of which is the number of acre-feet of Foreign Water carried for
Brighton in the month in which the weed treatment took place and the denominator of which is the
total number of acre-feet of water carried in the Fulton Ditch in chat month: plus (b) one hundred
percent (100%) of the cost of each aquatic weed treatment carried out by Fulton in the remaining
months of the year.
4.3 Payment Schedule.
4.3.1 The Initial Payment shall be made by cerifled check or wire transfer no later
than thirty(30)days after the exercise of the Option hereunder. Upon receipt of the Initial Payment,
Fulton shall execute and deliver a duly executed and appropriate conveyance document.
4.3.2 Fulton shall compute and bill the carriage charge quarterly. Payment shall
be due within thirty (30) days of invoice.
4.3.3 Fulton shall compute and bill the annual operation and maintenance charge
within thirty (30) days after December 31' of each year. Payment shall be due within thirty (30)
days of invoice.
4.3.4 Fulton shall compute and bill aquatic weed treatment charges within two{?)
weeks of receipt of all invoices to Fulton for such treatments. Payment shall be due within thirty
(30) days of invoice.
4.4 Default in Payment. At any time that Brighton is in default or in arrears of payment
of the carriage. operation and maintenance, or aquatic weed treatment charges required hereunder,
Fulton shall be entitled to and shall refuse to carry any Foreign Water for or on behalf of Brighton.
4.5 Carriage Charge Escalation. Every three (3) years after the exercise of the Option,
the acre-foot carriage charge shall be increased by the percentage increase in the Consumer Price
Index, all items. Denver Metro. Area(or a replacement index agreed to by the parties should the
Consumer Price Index cease to be published) for the previous three (3) years.
5. TERMS AND CONDITIONS OF CARRLAGE
5.1 Carriage in Excess Capacity Only. The carriage rights herein shall apply only to
Excess Capacity in the Fulton Ditch as defined herein. Accordingly,Foreign Water may be carried
in the Fulton Ditch on behalf of Brighton pursuant to this Agreement only at such times as there
exists Excess Capacity in the Fulton Ditch and only to the extent of such Excess Capacity.
5.2 Carnage Facilities
• 4 -
5.2.1 No later than 90 days after exercise of the Option, Brighton shall submit to
Fulton for its review and approval detailed plans for any and ail headgates and other diversion
facilities to be constructed in the Fulton Ditch to deliver Foreign Water carried for Brighton into the
Bromley Ponds or other storage facilities to which Foreign Water shall be delivered hereunder.
Brighton shall thereafter construct the approved facilities at its sole expense after receiving written
permission to do so. All construction shall be carried out under the supervision of Fulton's
superintendent. Brighton shall be responsible for and pay all maintenance and replacement costs of
the delivery facilities so constructed.
5.2,2 Similarly, Brighton shall no later than 90 days after exercise of the Option.
submit to Fulton for its review and approval detailed plans for the installation of measuring and
• recording equipment sufficient to allow Fulton to determine the rate of flow and volume of Foreign
Water delivered to Brighton pursuant to this Agreement. Brighton shall construct the approved
facilities at its sole expense after receiving written permission to do so. All construction shall be
carried out under the supervision of Fulton's superintendent.
5.3 Carriage Losses. Brighton shall bear carriage losses upon the Foreign Water carried
in the Fulton hereunder at the same rate as Fulton stockholders taking delivery of Fulton water in
the same reach of the canal as is used by Brighton. At any time that the Foreign Water is the only
water being carried in the canal Brighton shall bear such carriage losses as they occur.
5.4 Carriage Operations
5.4.l Brighton shall notify Fulton of the rate of flow and volume of Foreign Water
it requests to be carried hereunder the following day or days by written or oral notice no later than
12:00 noon to Fulton's superintendent. Fulton shall, as soon as practicable, provide written or oral
notice to the party designated by Brighton if Fulton is either unable to carry Foreign Water for
Brighton as requested(as a result of the lack of Excess Capacity in the Fulton Ditch) or if it must
displace Brighton's Foreign Water from the canal (again as a result of lack of Excess Capacity).
5.4.2 All canal operations.including all operation ofthe Fulton Ditch headgate upon
the South Platte River, and all operations of the facilities to deliver Brighton's water carried in the
Fulton Ditch into Brighton's storage facilities shall be carried out by Fulton's superintendent or
employees under his supervision.
5.5 Aquatic Weeds'\capacity Restrictions.
5.5.1 The parties recognize that growth of aquatic weeds (generally Sago
Pondweed) in the Fulton Ditch during the irrigation season diminishes the carrying capacity of the
canal. Fulton has for a number of years engaged the services of a professional chemical applicator
at least once, and sometimes twice, during the course of the irrigation season to "treat" the aquatic
- 5 _
weed growth in the canal. The treatment that has been applied in the past is Magnacid H herbicide.
applied in gaseous form, containing the active ingredient acrolcin, a general cell toxicant that
disintegrates weed tissue. Tnis chemical is also highly toxic to fish. In the presence of water, and
over the course of a few days, the chemical is dissipated by hydrolysis,photolysis,and evaporation.
Therefore, in order to carry out aquatic weed treatments to restore carrying capacity in the Fulton
Ditch.Fulton is required both to control the destination of all water to which the chemical is applied.
and prevent its introduction into the South Plane or other fish habitat,and to reduce the flow ofwater
through the Fulton Ditch for a period of several days. Brighton agrees that it shall ensure that all
water delivered to it out of the Fulton Ditch that has been subjected to aquatic weed treatment
(whether Foreigi Water or stock water) shall not be introduced into the South Platte River or other
fish habitat.
5..5.2 The parties hereto agree that if Fulton applies aquatic weed treatment to the
Fulton Ditch during the months of September through May in order to create or maintain Excess
Capacity in the ditch-to carry Foreign Water as requested by Brighton, then Brighton shall bear
complete and sole responsibility and liability for any damages, including crop damages or other
environmental damage resulting from such out-of-season aquatic weed treatments.
6. GENERAL
6.1 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.
6.2 Notices.
6 2.1 Written Notices. Written notices to be provided in writing pursuant to this
Agreement shall be addressed as follows:
If to Brighton: City of Brighton
City Manager
22 South 4h Avenue
Brighton, CO 3060I
If to Fulton: Fulton Irrigating Ditch Company
cio Brad Coover, Secretary
25 South 4w Avenue
Brighton, CO -50601
- 6 -
6.2.2 Oral Notices. Oral notices concerning this Agreement. including directions
or communications by Brighton concerning diversion and carriage of water hereunder shall be
addressed as follows:
If to Brighton: a. Terry Benton. Director of Public Works, or his successor
(303)655-2035: If unavailable, then to:
b. John Bramble, City Manager, or his successor
(303)655-2044: If unavailable. then to:
c. Administrative Assistant in Department of Public Works
(303) 655-2034
followed by written confirmation.
If to Fulton: George McDonald. Superintendent, or his successor
(303) 288-1621
followed by written confirmation.
The foregoing addresses and telephone numbers may be changed by written notice.
6.3 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.
6.4 Assignment. This Carriage Agreement shall not be assignable.
6.5 Nature of Carriage Rights. The carriage rights that are the subject of this Agreement
are intended and shall be considered to be interests in real property in the nature of an easement.
Executed as of the date first stated above.
FULTON IRRIGATING DITCH COMPANY
/.
By: ,�
John Thimmmig, President
Attest: Qn-d-f.-(
Brad Coover, Secretary
7
CITY OF BRIGHTON
By: / r /q� e
Terrence V. Lucero, Mayor
ATTEST:
I . Sue_'4urptty, Imteri[n City Clerk
- 3 -
Hello