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HomeMy WebLinkAboutC12-008 TOG first amendment - water rightsFIRST AMENDMENT TO SUPPLEMENTAL INTERGOVERNMENTAL AGREEMENT THIS FIRST AMENDMENT TO SUPPLEMENTAL INTERGOVERNMENTAL AGREEMENT, ("Agreement") is made and effective this _/� day of 20 by and between the TOWN of GYPSUM, COLORADO, a Colo ado home -rule mrmrerpality ("Gypsum"), and the COUNTY of EAGLE, a political subdivision of the State of Colorado, acting through its Board of County Commissioners ("County'). Gypsum and the County may be referred to herein as the "parties." RECITALS 1. The parties previously entered into the following agreements with terms to extend water from Gypsum's municipal water system to certain property known as the Eagle County Airport Property ("Airport Property"), as more particularly described in the legal description attached hereto as Exhibit "A": A. Intergovernmental Agreement dated March 14, 1988 ("1988 Agreement"); and B. Agreement dated December 23, 1992 by and between the parties hereto and The Vail Valley Consolidated Water District (hereinafter referred to as the "1992 Agreement"); and C. Termination Agreement dated December 12, 1996 by and between the parties hereto and the Eagle River Water and Sanitation District ("1996 Agreement"); and D. Intergovernmental Agreement dated February 9, 1999 (including April 27, 1999 Addendum)("Maintenance Center Agreement"); and E. Intergovernmental Agreement dated April 19, 2004 ("2004 Agreement"); and F. Supplemental Intergovernmental Agreement, dated July 13, 2010 ("Supplemental IGA"). 2. The County's property was annexed to Gypsum under that Annexation Agreement dated July 13, 2010. 3. Gypsum's water right dedication fees and water service tap fees are expected to increase over time to meet increasing costs for water rights and demands. 4. Gypsum is in the process of developing water supplies for the Town's future use in meeting expected demands by upgrading a reservoir, and requires funding in 2011 and 2012 to make those upgrades. To reduce the County's future costs for Gypsum fees, the County seeks to prepay water dedication fees for approximately 55 equivalent residential units (EQR) at the current price, in order to provide water service for Eagle County's Airport Property through build -out up to 80 EQR. In addition, again, to reduce future costs, the County also seeks to prepay up to 20 water service tap fees for the Airport Property. 5. The above recited agreements allow for this prepayment of expected fees. FIRST AMENDMENT TO SUPPLEMENTAL INTERGOVERNMENTAL AGREEMENT EAGLE COUNTY, GYPSUM PAGE 2 NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by all parties, the parties agree as follows: 1. Prepayment of Water Right Dedication Fees and Water Service Tap Fees for Airport property A. Prepaid Water Right Dedication Fees. The Supplemental IGA recognized that the County used 25.13 EQR, plus retained 0.47 EQR credit toward the expected total water right dedication requirements of 80 EQR. Therefore, pursuant to the 2009 County Water Assessment, attached hereto as Exhibit `B", if the County purchases an additional 54.4 EQR, it will prepay the entire expected water right dedication fee for future growth at the current rate. Because prepayment saves the County future funds, the County agrees to prepay 54.4 EQR of water right dedication fees pursuant to this Agreement. At the current rate of $7,000 per EQR, the total amount for this prepayment of 54.4 EQR is $380,800. Even though such EQR may be applied to future use, the prepayment described herein locks in the water dedication fee for up to 80 EQR. The parties agree that Gypsum will not charge future water right dedication fee increases to the 54.4 EQR secured by this Agreement, even if the County's uses occur during a later time when Gypsum's water right dedication fees are higher. B. Pre -paid Water Service Tap Fees Gypsum and the County agree that the County will similarly prepay for water service tap fees for the Airport Property. The County seeks to prepay to 20 EQR of water tap fees at the current rate of $6,000 per EQR, for a total of $120,000. Even though such water service tap fee EQR may be applied to future uses, the prepayment described herein locks in the price for up to 20 EQR of water service tap fees. The parties agree no future tap fee increases will be applicable to the 20 EQR secured by this Agreement, even if those uses occur during a later time when the tap fees are higher. C. Annexation Agreement. Gypsum and the County entered into an Annexation Agreement for the North Airport Annexation dated July 13, 2010 (Reception No. 201014254, Eagle County Clerk & Recorder's Office, Eagle County, Colorado). Section 8 of this Annexation Agreement provided Gypsum with sole discretion to limit the number of water taps and relieved Gypsum of the obligation to obtain additional water rights to meet the future water demands of the Airport. The parties agree that such section of the Annexation Agreement shall not be applicable to the water and tap fees being purchased herein. Gypsum shall be obligated to obtain the water rights necessary to meet the EQR amount being purchased and will not curtail or otherwise limit the taps being purchased through this Agreement. D. Not Applicable to Expected Other Water and Sewer Demand Gypsum and the County agree that the prepayments authorized by this Agreement are not applied to other existing uses on the County's leased property within the Annexation Property, including the High -Altitude Army Aviation Training Site (HAATS), the Vail FIRST AMENDMENT TO SUPPLEMENTAL INTERGOVERNMENTAL AGREEMENT EAGLE COUNTY, GYPSUM PAGE Valley Jet Center or other county lessees, without written agreement and consent by both Gypsum and the County. E. Periodic Reassessment. Gypsum and the County agree to continue the periodic reassessments for use determined in the Supplemental Agreement, with the next periodic assessment conducted by Gypsum on or before October 30, 2012. However, the prepaid water dedication fees and prepaid tap fees shall be accounted for as Comity credits up to the total of 80 EQR for water right dedication, and up to 45.14 (25.14 + 20) EQR for prepaid water service taps. After that, if ever applicable, the assessment and any remaining payments shall be made by each 3 year anniversary, after Gypsum's notice to the County. F. Transferabilitv. Gypsum and the County agree that such prepaid water right dedication fees and water service tap fees should not go perpetually Lmused. Ifafter ten (10) years, the County determines that the Airport Property will not use all the pre -purchased water right dedication fees or water service tap fees prepaid under this Agreement, then the parties agree as follows: Any excess prepaid EQR (for water right dedication fees or water service tap fees) can be jointly assessed by the parties. Upon both parties agreement, such agreement not to be unreasonably withheld, excess prepaid EQR may be returned to Gypsum for a reft nd at the original purchase price (regardless of the current water right dedication fee or tap fee at that time). Alternatively, upon agreement by both parties, such agreement not to be unreasonably withheld, the County may transfer excess EQR credits to other interested parties, but not at any fee greater than those fees paid under terms of this Agreement. Any refund is limited to the 54.4 EQR of water right dedication fees or 20 EQR of water tap fees secured under this Agreement. G. Payment. Payment of the water right dedication fees and water service tap fees will be made by the County to Gypsum within ninety days of executing this agreement. 2. Amendment to Supplemental IGA Only This First Amendment to Supplemental IGA Agreement is intended to only amend the 2010 Supplemental IGA Agreement, so that prepayment for water right dedication fees and water service tap fees may occur. All other provisions of the Supplemental IGA Agreement not covered herein shall remain intact and effective. In case of conflict between any provision of the 2010 Supplemental Agreement and this First Amendment to the Supplemental IGA, this First Amendment to the Supplemental IGA shall govern. WHEREFORE, the parties have executed this First Amendment to Supplemental hrtergovernmental Agreement effective on the day and year first set forth above. FIRST AMENDMENT TO SUPPLEMENTAL INTERGOVERNMENTAL AGREEMENT EAGLE COUNTY, GYPSUM PAGE 4 At By Pri Ch COUNTY OF EAGLE, STATE OF COLORADO By and through its BOARD OF COUNTY COMMISSIONERS STATE OF COLORADO ) ss: COUNTY OF EAGLE ) Subscribed and sworn to before me this _ day of , 20. Chairman of the Eagle County Board of County Commissioners. Witness my hand and official seal. My Commission expires Notary Public by Jon Stavney, as FIRST AMENDMENT TO SUPPLEMENTAL INTERGOVERNMENTAL AGREEMENT EAGLE Coumy, Gypsum PAGE 5 TOWN OF GYPSUM By Steve Carver, Mayor Attest: By Danette Schlegel Town Cleric, Town of Gypsum STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) Subscribed and sworn to before me this _ day of , 20_ by Steve Carver, as Mayer of the Town of Gypsum. Witness my hand and official seal. My Commission expires Notary Public First Amendment to Supplemental IGA PARCELI A parcel of land located in Sections 2, 3, 4, and 9, Township 5 South, Range 85 West of the Sixth Principal Meridian, Town of Gypsum, Eagle County, Colorado being more particularly described by metes and bounds as follows: Beginning at a point being the Southeast Corner of the Eagle County Maintenance Service Center, according to the Amended Exemption Plat thereof, as recorded October 20,1999 as Reception No. 712446; thence N00°09'30"E, 1282.80 feet to Angle Point 1 of Tract No. 66 also being the Southeast Corner of the Longview Subdivision according to the Plat thereof as recorded December 27, 1971; thence along the South boundary of said Lot 1 S89°53'27"W, 340.66 feet; thence 490.42 feet along the arc of a curve to the left having a radius of 700.00 feet and a central angle of 40°08131" the chord of which bears N42°01'07"E, 480.46 feet to the North boundary of said Lot 1; thence N83°06'37"E, 20.21 feet, to the northeast corner of said Lot 1;thence departing said Lot 1 Boundary and along the West line of Tract 62 N 01008109" W, 4.58 feet to the Southwest corner of Lehmann Parcel according to the Annexation plat thereof recorded at Reception No. 200617642; thence departing the West line of said Tract 62 and along the South lines of said Lehmann Parcel N 81°50'25" E, 3616.85 feet to the Southeast coiner of said Lehmann Parcel; thence along the easterly boundary of said Lehmann Parcel, and the easterly and southerly boundary of Gypsum Airpark LLC, DBA Gypsum Commercial Park, as recorded at Reception No. 609362 the following four (4) courses and distances: 1) N 01°49143" E, 576.43 feet; 2) S 88°10'31" E, 61.45 feet; 3) N 72°24'56" E, 569.20 feet; 4) S 89°08'06" E, 285.75 feet; thence departing said southerly line of Gypsum Airpark LLC, DBA Gypsum Commercial Park, continue S 89°08'06" E, 1785.68 feet; thence N 00°51100" E, 200.00 feet; thence S 89°09100" E, 1962.68 feet; thence S 00°44'07" W, 200.00 feet; thence S 89°09'21" E, 213.88 feet; thence S 70°31'00" E, 327.11 feet to a point on the 2-1 line of Tract 56; thence along said line N 89°06'30" E, 479.92 feet to Corner 1 of said Tract 56 and Corner 4 of Tract 55; thence along the 4-5 line of said Tract 55, N 00°11154" W, 331.44 feet to the Northwest corner of that parcel of land described in Book 433 at Page 775, thence along the North line of said parcel S 81°24127" E, 1719.38 feet to the Northeast corner of said parcel; thence continue S 81°24127" E, 25.24 feet to the Northwest comer of Hoffman Exemption Plat according to the plat thereof recorded in Book 682 at Page 812; thence along the West boundary of said plat the following three (3) courses and distances: 1) S00°48116"W, 973.02 feet; 2) 66.92 feet along the arc of a curve to the right having a radius of 85.03 feet, a central angle of 45°05'54" and a chord which bears S23021'02"W, 65.21 feet; First Amendment to Supplemental IGA 3) S 00°48116"W, 183.50 feet, to the Northern boundary of those lands described in the Eagle County Airport Annexation to the Town of Gypsum, according to the Annexation Map thereof as recorded February 6, 1997 as Reception No. 614097; thence along said Northern boundary S81°50'29"W, 8852.25 feet; thence S00°00'00"E, 6.53 feet to the North boundary of the Cooley Mesa Road Annexation to the Town of Gypsum, recorded February 6,1997 as reception No. 614098; thence along said Northern boundary the following eighteen (18) courses: 1) 424.73 feet along the arc of a curve to the left having a radius of 1939.86 feet and a central angle of 12°32'41" the chord of which bears S77°14'29"W, 423.88 feet; 2) S70°20'49"W, 47.12 feet; 3) S69°21130"W, 50.40 feet; 4) S68 -49'26"W, 50.16feet; 5) S68°43'47"W, 3.33 feet; 6) S68°43126"W, 199.69 feet; 7) S68°50149"W, 46.74 feet; 8) S69°37120"W, 49.37 feet; 9) S71°14117"W, 49.27 feet; 10) S72°24'15"W, 2.70 feet; 11) 266.75 feet along the arc of a curve to the right having a radius of 1115.92 feet and a central angle of 13°41'46" the chord of which bears S79°19'23"W, 266.12 feet; 12) S86°43116"W, 22.37 feet; 13) S88°09125"W, 49.29 feet; 14) S89°26123"W, 49.55 feet; 15) S89°531241W, 26.98 feet; 16) S00°04'17"E, 7.70 feet; 17) S89°27121"W, 570.79 feet; 18) N89°201561W, 302.03 feet to the Point of Beginning. Containing 452.2 acres of land more or less. 4.A,41R I'4 First Amendment to Supplemental IGA PARCEL2 A parcel of land being a portion of Tract 54, Township 5 South, Range 85 West of the 6th Principal Meridian, County of Eagle, State of Colorado, more particularly described as follows: Beginning at a point being angle point 2 of said Tract 54, thence along the north line of said Tract 54, S89°08113"E, 714.26 feet to a point, being the northeast corner of Parcel A, Greenman Exemption Plat, as recorded April 28, 1989 at Reception No. 401473, in the Office of the Eagle County Clerk and Recorder; thence departing said Tract line and along the southeast boundary of said Parcel A the following 7 courses: 1) 547°51'36"W, 425.84 feet; 2) S42°08'24"E, 50.00 feet; 3) S47°51136"W, 200.00 feet; 4) N42°08'24"W, 50.00 feet; 5) S47°51'38"W, 137.21 feet; 6) S49°08107"W, 156.51 feet; 7) 37.64 feet along the arc of a curve to the right having a radius of 1245.92 feet, an central angle of 01°43'51", and a chord which bears S53°28'32"W, 37.63 feet to the westerly line of said Tract 54; thence along said westerly line of Tract 54 N0000111211E, 647.52 feet to the Point of Beginning, Excepting therefrom: i) that portion of the Cooley Mesa Road right of way defined in the Cooley Mesa Road Annexation as recorded in the Eagle County Clerk and Recorder's Office as Reception No. 614098 and, ii) that portion of those lands defined as Eagle County Airport Annexation to the Town of Gypsum as recorded at Reception No. 614097 in the Office of the Eagle County Clerk and Recorder, County of Eagle, State of Colorado. Containing 3.52 acres more or less. First Amendment to Supplemental IGA PARCELS A Parcel of land, located in Tract 60, Section 3 and 10, TSS, R85W, 6th P.M., County of Eagle, State of Colorado, according to the Independent Resurvey thereof as accepted by the General Land Office June 6, 1923, also being northerly of and adjacent to the Cooley Mesa Road, said parcel being more specifically described as follows: Commencing at the monument marking the witness corner to angle point 3 of tract 57 from which angle point 2 Tract 54 bears N71°44'56"E, 4175.85 feet; thence S89°04'54"W, 30.01 feet to the true Point of Beginning being the southeast corner of the "Nunn Property" as defined in the Nunn Property, Land Survey Plat as deposited in Book 001 at Page 660 in the Eagle County, Colorado, Land Survey Plat depository; thence S89°04'54"W, 295.23 feet along the northerly boundary of the Cooley Mesa Road right of way, thence N00°21'00"E, 295.16 feet, thence N89°04'54"E, 295.23 feet, thence S00°21'00"W, 295.16 feet to the point to the point of beginning. Containing 2.00 acres more or less rxntwt1 E5 First Amendment to Supplemental IGA I't TRICK MILUR I K!\()I'I .4 1c�mevss at Lavr ww\v wraterlavr.com Ramsey L Kropf- MEMO shatrhuldo outlier, and we note lower peaks in the other years in the reassessment period. I<roplcck% atelantcom TO: Bryan Treu, Eagle County Attorney's Office .11;,. CC: Jeff Shroll, Lana Gallegos,Town of Gypsum; Tont Zancanella r. 303.893.9700 FROM: Ramsey L. Kropf, Patrick Miller and Kropf, P.C. P 303.893.7900 DATE: May 21, 2009 RE: Eagle County 1041, EQR Reassessment 2415 E. Can,elback Based on metered use, the peak months can be surnmarized on the following table: Determining EOR. A table comparing the EQR evaluation from the 2004 IGA, and the EQR current reassessment is shown below. The 2004 IGA (Exhibit B) used pure peak month information to determine total EQR. Using peak flow is appropriate, because the Town is required to provide peak water and wastewater flows during months when peak use occurs. In addition, as the airport grows, this gives the town a buffer, because the peaks will generally increase. Zancanella and Associates updated its last assessment' from that provided to Eagle County in Lana's April 24, 2009 memo. The updated analysis reviews the ail -port's peak uses in the exact same way that the County and Gypsum previously agreed upon for the 2004 IGA. again ()If,,,: The peak is derived from reviewing monthly and animal metered use at the terminal 730 E. Dmnnc Avenue and the AARF facility (only) over the last four year period. These peaks are not Shire 200 based on irrigation, as was the issue in the past. Rather, we surmise that the peaks Aspen, Co 8 16 11 are based on the winter enplanements, which are seasonal to be certain, and reflect 970'920.1047 i 970.925.6747 growth over the last few years, particularly during ski season. D'In'rOkfi": However, the peak month in March 2006, for 406,000 gallons appears to be an 9991 sdr Street outlier, and we note lower peaks in the other years in the reassessment period. 30th Floor Based on this, we have updated the EQR analysis using the peak month of February Denver, CO 30202 2007 for the reassessment. If in the next three years, the peaks indicate that the r. 303.893.9700 359,000 was not indicative for peak demand, then the Town will communicate and P 303.893.7900 adjust EQRs with the county as necessary. 2415 E. Can,elback Based on metered use, the peak months can be surnmarized on the following table: Suite 700 Phoenix, AZ 85016 1 450.921.4044 ". 480.921.3683 hkl c:1119" ' The analysis provided by Zancanella & Associates for the April 24 letter looked at the gallons 7633 E. 63rd Place broken down at several different meters, and then "averaged" the 2-4 months in 2005, 2006, 2007 Suite 300-17 and 2008 to come up with a average for just those uses at the temunal, and then assigned a straight Tulsa, OK 74133 5.0 EQR to the AARF facility, and I EQR each to the County's other two buildings. That analysis 1. 913.459.4634 provided a slightly higher EQR calculation, and therefore, Zancanella & Associates revised to match ' 970.925.6$47 the 2004 Agreement analysis, which is simpler. However, it is still a peak flow analysis. ,i p10(usstooaf cU1pot afIC31 W:\GYPSUM\37 i (2) Engly County 1041\10emosWemoShroll EQR Determination 5-20-09.doe First Amendment to Supplemental IGA PAIRICk , iNII I 11: RKIMN Bryan Treu, Eagle County Attorney Page 2 May 21, 2009 r Peak Months Total MonthlyDiversions in gallons Add 5% per 2004 Jan 298,000 gallons per EQR = EQRs Feb 282,000 [2006 March 330,000 2004 IGA Dec 249,000 21.56 EQR Feb 335,000 Less amount from 2004 IGA March 409,000 February 20067 Jan 340,000 Subtract remaining Credit Feb 359,000 Balance of EQR Due to Gypsum, or remaining credit (shown in <>) to for Eagle Count March 327,000 Current Fee Rate at Gypsum Dec 229,000 2008 Jan 284,000 Feb 293,000 March 273,000 Determining EOR Prepaid Status. Gypsum's code section 13.08.060, provides that one EQR is assigned where average monthly peak water demand is equal to 15,000 gallons. For the 2004 IGA, we used the highest peals gallons metered in the three year period for determining EQR, divided that by 15,000 per EQR. For the reassessment, we did the same calculation, but used the second highest peak month and the result is shown below. Therefore, the remaining fee credits that Eagle County still has available from the 2004 TGA are applied against the increased EQR as follows: Peak Flow Total Divide Peak Flow by 15,000 Add 5% per 2004 +23.83 Metered Diversions in gallons per EQR = EQRs IGA <21.56> Gallons Currently Being Used 4.04 2004 IGA March 2003 20.53 EQR 21.56 EQR 25.13 308,000 gallons Less amount from 2004 IGA <21.56> 2009 Reassessment February 20067 23.93 EQR 25.13 EQR Subtract remaining Credit 359,000 gallons <4.04> Balance of EQR Due to Gypsum, or remaining credit (shown in <>) to for Eagle Count Therefore, the remaining fee credits that Eagle County still has available from the 2004 TGA are applied against the increased EQR as follows: W:\GYPSUM\37 i (2) Eagly County 1041\Meinos\MemoSlvoll EQR Determination 5-20-09.doc Water Service Tap Water Fee in EQR Dedication Right 2004 IGA Total Credit to Eagle County +23.83 +25.60 2004 IGA Uses <21.56> <21.56> 2004 IGA Remainin Credit 2.27 4.04 2009 Assessment 25.13 25.13 Less amount from 2004 IGA <21.56> <21.56> Increased Use in EQR 3.57 3.57 Subtract remaining Credit <2.27> <4.04> Balance of EQR Due to Gypsum, or remaining credit (shown in <>) to for Eagle Count 1.3 <0.47> Current Fee Rate at Gypsum $6,000 $7,000 Total Fee due $7,800 n/a W:\GYPSUM\37 i (2) Eagly County 1041\Meinos\MemoSlvoll EQR Determination 5-20-09.doc GAMONY 6 First Amendment to Supplemental IGA hai l I 11: I:. I K Rol' I Bryan Treu, Eagle County Attorney Page 3 May 21, 2009 Please note that the 2004 IGA did not address wastewater flows, however, the agreement does note that the same EQR calculations apply. Therefore, additional fees for the additional 3.57 EQR of wastewater use would be calculated at the $7,000 per EQR fee, for $24,990. It is my understanding from talking to Tom Zancanella, that the airport's peals flow demands for wastewater are particularly significant in the peak winter months, leading to various requirements for infi-astructure improvements. Finally, this review has prompted Gypsum to review its billing to Eagle County. We will update you with this information as well once all of it is summarized. Thank you and please feel free to call with any questions. \99GYPSUMl37 i (2) Eagly County 1041\Memos\MemoShrol1 EQR Detem»nation 5 -20 -09 -doe