IGA; City of Louisville; Farmer's Reservoir and Irrigation Company (FRICO)INTERGOVERNMENTAL AGREEMENT
THIS AGREEMENT dated this ~~-day of ``N , 07, is between the City
of Louisville ("Louisville"), a Colorado home-rule city, and the 0 y of Boulder ("Boulder"), a
Colorado home-rule city.
WHEREAS, Farmers Reservoir and Irrigation Company ("FRICO") is the owner of a
certain ditch commonly known as the Community Ditch (hereafter "Community Ditch"), and has
the right to use the land through which the Community Ditch traverses pursuant to various
prescriptive easements, deeded easements or fee ownership of land; and
WHEREAS, Boulder is the owner of certain property used for open space, which is
located in Sections 21, 22, 28, 29 and 30, Township 1 South, Range 70 West of the 6~h P.M.,
Boulder County, Colorado (the "Open Space Property"); a portion of the Community Ditch
(the "Ditch") flows through the Open Space Property, between two points marked "A" and "D"
on the map attached to this Agreement as Exhibit A.
~ WHEREAS, Boulder believes preservation of such open space in lieu of development of
Q
` this property is beneficial to Louisville's water supply; and
` WHEREAS, Boulder uses a trail for community recreation which follows the general
~ alignment of the Ditch's service road ("Trail"); and
O WHEREAS, Louisville uses the Community Ditch as an integral part of its municipal
water supply system, carrying water through the Community Ditch, into Marshall Reservoir to
be used ultimately for municipal water supply; and
WHEREAS, recreation and water quality can be competing uses which need to be
reconciled in a manner consistent with the ideals, safety, and needs of Boulder and I,ouisville;
and
WHEREAS, reconciling competing uses can be best accomplished through
communication, understanding impacts of the uses and cooperative efforts; and
WHEREAS, municipal water treatment requires compliance with current regulations and
standazds, and will also require co~npliance with future regulations and standards of unknown
impact and effort of compliance; and
WHEREAS, the Parties wish to work together to prevent degradation to municipal water
supplies; and
WHEREAS, Boulder wishes to make good faith and reasonable efforts to work with
Louisville to minimize water quality impacts attributable to the use of Boulder's Open Space
Property, the Ditch and the Trail adjacent to the Ditch.
K:\OSOS\FRICO.OSOSLNMa-Boulder Louisville IGA FINAL.Inh.doc
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, the parties acknowledge and agee as follows:
1. Use of Ditch for Municipal Supplv.
Louisville uses the Community Ditch, including the Ditch, as an integral part of
its municipal water supply system. Louisville owns water in FRICO and the South Boulder and
Coal Creek Ditch Company that is delivered through the Community Ditch, and has carriage
agreements with FRICO that allow Louisville to carry other water owned by Louisville through
the Community Ditch, all of which is used ultimately for municipal supply. Boulder further
recognizes and acknowledges that Boulder's uses may negatively impact the quality of the water
in the Ditch.
2. Grant to Louisville of Access to Open Snace Mountain Park Pronertv and
Underpass.
Boulder hereby grants to I,ouisville the right of ingress and egress to the Ditch,
that portion of Open Space Property containing the Trail, and other land reasonably necessary,
including the right of ingress and egress to the trail associated with the underpass under Colorado
Highway 93, for monitoring, testing and other actions consistent with this Agreement. For the
purpose of this Agreement, "other actions" shall include minor remedial actions, such as removal
of a dead animal, that will cause no damage to the Ditch or Open Space Property or which
otherwise are authorized by Boulder.
3. Resnonsibilities of Boulder.
Boulder may permit members of the public to access the Trail in such manner as
it shall desire, consistent with Boulder's management plans for the Trail. However, Boulder shall
utilize its best efforts to prohibit any people or domestic animals from entering the Ditch, and
any other uses which would limit or interfere with Louisville and FRICO's use of the Ditch for
normal operations. The phrase "domestic animals' is intended to include those animals such as
dogs, horses, alpacas, llamas, etc which would travel with humans on the trail. It is not intended
to include cattle. Boulder's management of any cattle on its Open Space Property, and possible
water quality impacts ftom cattle, are not subject to this Agreement. Louisville is not waiving
any claims it may have for water quality impacts from cattle. These best efforts shal] address
possible degradation of the quality of water in the Ditch and shall include, but are not ]imited to,
a city manager rule prohibiting people and domestic animals in the Ditch, together with signage
and other methods, including enforcement by Boulder, reasonably necessazy to protect the
quality of the water in the Ditch. The use of the CDOT culvert by Boulder shall be consistent
with al] agreements between Boulder and FRICO, and Louisville shall be deemed to be a third
party beneficiary of the terms and conditions of the Boulder/FRICO agreements with respect to
the use of the underpass under Colorado Highway 93.
K:\OSOS\FRICO.OSOSLNH~a-Boulder Lomsville IGA FMAL.Inh.doc
4. Resuonsibilities of Louisville.
a. Louisville agrees to be responsible for designing a monitoring plan for the
water quality in the Ditch, which, after review and comment by Boulder,
will be implemented by Louisville, and will include conducting tests to
determine water quality in the Ditch. The testing will include establishing
baseline information about the quality of the water. The timing and
determination of the types of testing shall be at Louisvil]e's reasonable
discretion. Testing locations may include, but not be limited to, the
headgate to the Community Ditch, the point at which the water enters
Boulder's property, and the point at which it leaves Boulder's property.
b. Louisville agrees to notify Boulder within thirty (30) days of any test
results which are of concern to Louisville that indicate conditions that have
a reasonable potential to negatively impact Louisville's use of water from
the Ditch.
c. As long as Boulder participates in the testing and monitoring program as
described herein, Louisville shall shaze all data from testing and monitoring
with Boulder without Boulder needing to make a request for such
information under open records law.
5. Joint Resnonsibilities.
a. Upon norice and supportive data delivered to Boulder of an acute
condition that has negatively impacted Louisville's use of water from the
Ditch (or which could do so) pursuant to paragraph 4.b herein, Boulder
and Louisville agree to make a good faith effort to meet within forty-eight
(48) hours, unless that time period is waived by both parties. In a non-
emergency situation, the parties agree to meet within five (5) business
days, unless that time period is waived by both parties.
b. At such meeting, the parties agree to discuss in good faith whether the data
suggests degradation to the quality of water in the Community Ditch
attributable to use of Boulder's Open Space Property through which the
Ditch traverses, and options to further analyze and address the water
quality situation, including mitigation and corrective action. Boulder,
FRICO and Louisville may jointly or independently retain an independent
expert or use staff inembers to perform water testing and make
recommendations on (1) whether a problem exists about the quality of the
Ditch water and (2) what the problem appears to be and what the source of
the problem might be; (3) whether further or different testing needs to be
done; and (4) what actions, if any, could be undertaken by any party or
entity to improve the quality of the water in the Ditch.
K:\OSOS\FRICO.OSOSLNH~a-Boulder Lou~sville IGA FINAL.Inh.doc
c. Louisville and Boulder also agree to meet annually to review the data and
to determine whether on-going problems or negative trends aze occurring.
Louisville shall contact Boulder to arrange that meeting. The agenda of
such meeting shall include any changes in management or use
contemplated by Boulder, including city manager rules or other rules and
regulations, within the watershed that includes the Ditch. Boulder shall in
this fashion use its best efforts to include Louisville in the initial stages of
any proposed changes to facilitate communication and promote source
water protection. Such involvement does not preclude Louisville from
commenting on, and participating in, any public hearings regazding such
changes.
d. The Parties shall meet and confer periodically to explore ways to shaze
expertise and resources relating to water quality monitoring and the
potential for sharing the cost of such programs.
6. Additional Monitorine.
Nothing in this Agi-eement is intended to limit Boulder's ability to monitor or test
water quality of the water in the Community Ditch. Boulder agrees to notify Louisville, in
writing, of any testing or monitoring, and shall provide any such data to Louisville without
Louisville needing to make a request for such information under open records law.
7. Disnute Resolution.
a. Mediation Process. Should any dispute or disagreement arise as to
whether any activity being conducted by Boulder or Louisville is in breach
of this Agreement, the same shall be refened to mediation by a mediator
chosen jointly by Louisville and Boulder. Boulder and Louisville shall
share equally the costs of inediation.
b. Litieation. In the event mediation does not successfully resolve the
disagreement or dispute within sixty (60) days (unless that time period is
waived by both parties), Boulder or Louisville may seek legal or equitable
relief by filing a civil action in the Boulder County District Court. In any
litigation arising out of this Agreement, each party shall pay and be
responsible for their respective attomey fees, unless the court, in its
discretion, determines that one party should, in equity and fairness, be
responsible for payment of all or some portion of the attorney fees
incurred by the prevailing party in the litigation.
8. Notices.
All notices under this Agreement shall be given by registered or certified mail,
postage prepaid, directed as follows, and shall be deemed given on the date of mailing:
K:\OSOS\FRICO.OSOSLNMa-Boulder Louisville IGA FMAL.Inh.doc
If to Boulder: City Manager
P.O. Box 791
Boulder, CO 80306
If to Louisville: City Manager
749 Main Street
Louisville, CO 80027
9. Binding Effect.
This Agreement shall inure to the benefit of, and be binding upon, the parties, and
their respective legal representatives, successors, and assigns: provided, however, that nothing in
this paragraph shall be construed to permit the assignment of this Agreement except as otherwise
specifically authorized herein.
10. Assignment.
This Agreement shall not be assigned by the parties without the prior approval in writing
of both parties.
11. Term of Aereement.
The initial term for this Agreement shall be coextensive with the term of any
Boulder/FRICO agreement for use of the culvert under Colorado Highway 93, or ten years, whichever
term is greater.
DATED THE DAY AND YEAR FIRST ABOVE WRITTEN.
[SIGNATURE PAGE FOLLOWS]
K~\OSOS\PRICO.OSOSLNFi~a-Boulder Lou~svdle IGA FINALJnh doc
CITY OF BOULDER
City Clerk on behalf of the ~)
\./
Appro~to fo ~~
V
City Attorney for Boulder, Colorado
Date:
CITY OF LOUISVILLE
By:
Mayor
ATTEST:
City Clerk
Approved as to form:
City Attorney for Louisville, Colorado
Date:
K~\OSOS\FRICO.OSOSLNH~s-Boulder Louisville IGA FMAL Inh.doc
Director of Finance and Record
11. Term of Agreemen
The initial term for this Agreement shall be
coextensive with the term of any Boulder/FRICO agreement for use
of the culvert under Colorado Highway 93, or ten years,
whichever term is greater.
DATED THE DAY AND YEAR FIRST ABOVE WRITTEN.
CITY OF BOULDER
By:
Mayor
ATTEST:
City Clerk on behalf of the
Director of Finance and Record
Approved as to form:
City Attorney
Date:
7