IGA; Town of Nederland; wastewater treatment facility improvements
INTERGOVERNMENTAL AGREEMENT BETWEEN
THE CITY OF BOULDER AND THE TOWN OF NEDERLAND
REGARDING IMPROVEMENTS TO NEDERLAND'S
WASTEWATER TREATMENT FACILITY AT BARKER RESERVOIR
THIS AGREEMENT is made to be effective the day of ;,jeC ~ 2009
between the City of Boulder, a Colorado home-rule city (`Boulder" or the "City"), and the Town
of Nederland, a Colorado statutory town ("Nederland" or the "Town"), collectively the "Parties"
(the "IGA").
A. Nederland is building a new Wastewater Treatment Facility to comply with
standards requirements of the Colorado Department of Public Health and Environment
("CDPHE"), and to increase treatment capacity to allow for future wastewater services for the
area known as Big Springs south of Barker Reservoir and full build-out of the Town's current
planning area (the "WWTF"); and
B. Boulder is interested in the effluent produced by the WWTF constructed by
Nederland and the filters and processes used at the facility because the facility discharges into
Barker Reservoir, a primary water source for the City of Boulder; and
C. Boulder has agreed to contribute up to $370,000 for construction, and up to
$17,300 per year for operation and maintenance of certain treatment processes at the WWTF
pursuant to the terms of this agreement.
NOW THEREFORE, the Parties agree as follows:
1. Nederland is building a new WWTF with a treatment capacity of 0.25 million
gallons per day, which the Town intends to serve the properties for which water taps have been
issued as well as all of the potential future wastewater capacity for full build-out of Nederland's
current planning area, including the area known as Big Springs subdivision south of Barker
Reservoir, In consideration of the covenants set forth in this Agreement, Nederland has agreed
that the WWTF shall replace the existing aeration lagoon system, and include a Sequencing
chemical precipitation process for phosphorous removal.
2. Boulder desires to reduce the amount of phosphorous discharged into Barker
Reservoir from the WWTF, and has agreed to contribute up to $370,000 to Nederland for
construction of the filtration and chemical precipitation processes for phosphorous removal at the
WWTF pursuant to the terms of this IGA and under the following conditions:
a, The WWTF shall be designed and constructed based on a design standard of
producing effluent that does not exceed
i. an average annual effluent concentration for Total Phosphorus (TP) of
1.6 milligrams per liter (mg/1) based on a minimum of one total
phosphorus effluent composite sample per week for each week of the
year, and
ii. an average monthly effluent concentration for TP of 1.6 mg/1 for the
months of June through September based on a minimum of one total
phosphorus effluent composite sample per week for each week during
the months of June through September.
b. If the WWTF includes one equalization tank, Boulder shall reimburse
Nederland the actual costs for construction of the filtration and chemical
precipitation processes for phosphorous removal at the WWTF up to
$270,000. If two equalization tanks are necessary to meet the criteria in this
IGA, Boulder will reimburse Nederland up to an additional $100,000 for the
actual cost of construction of the second equalization tank.
c. Nederland shall proceed with design and construction on a time schedule that
will allow it to obtain a Colorado Discharge Permit System (CDPS) discharge
permit from Colorado Department of Public Health and Environment
("CDPHE") to operate the WWTF on or before June 30, 2012. Nederland will
apply for any other permits t at may be needed in a timely manner.
d. Design and construction plans for the WWTF shall be submitted to Boulder
by Nederland for comment prior to submission to CDPHE. Boulder shall
have 28 days from receipt of such plans to provide comments to the
Nederland engineer responsible for such plans. Boulder shall bear all costs
- - -incurred--for-any-consulting engineer-ret-aired-by-Boulder-to-review and
comment on such plans. Nederland's engineer shall consider Boulder's
comments and advise Boulder's representative of the incorporation of
Boulder's comments into such plans or of the reasons for not including the
City's comments. Nederland shall bear all costs for its engineer to prepare
design and construction plans for the WWTF, to incorporate Boulder's
comments into such plans, and/or to provide reasons for not including
Boulder's comments.
e. The final design of the filtration and chemical precipitation processes for
phosphorous removal at the WWTF, and of the second equalization tank if
necessary, shall be subject to the approval of Boulder. Nederland shall
provide Boulder with final design documents and a request in writing for final
design approval that includes a final determination of the need for a second
equalization tank. Boulder shall have 28 days from receipt of such final design
documents to either provide Nederland with approval of the documents or to
provide notification of specific deficiencies in the documents preventing
Boulder's approval. If no agreement can be reached between Boulder and
Nederland, the Parties shall use their best efforts to resolve the dispute in
accordance with Section 9.A. below.
f. Boulder shall be provided at least 48 hours notice of any meetings between
Nederland and CDPHE that may include discussion of the filtration and
chemical precipitation processes for phosphorous removal at the WWTF.
Boulder shall be permitted to attend and participate in any such meetings. In
the event any such meetings happen with less than 48 hours notice, Boulder
shall be provided as much notice as possible and permitted to attend and
participate.
g. Boulder may inspect the premises and facilities of the WWTF at any time
during construction after giving the Town at least 48 hours notice; provided
however, Boulder may not interfere with construction or give direction to any
party, other than through the Town's representative as provided herein.
3. The contribution by Boulder to Nederland of up to $370,000 shall be
reimbursement for actual construction costs by the following process:
a. The contractor used by Nederland for construction of the WWTF shall show
the charges, including labor and materials, for the construction of the facilities
necessary for filtration and chemical precipitation processes for phosphorous
removal separately from other contractor charges. The separately-tabulated
contractor charges for the construction of facilities for filtration and chemical
precipitation processes for phosphorous removal shall be the basis for
determining the actual construction costs to be reimbursed by Boulder. Actual
construction costs shall not include charges by Nederland's design and
construction engineer.
b. Nederland shall notify Boulder upon reaching 50% completion of the
construction of the WWTF and shall concurrently provide to Boulder copies
of all invoices it has received from the contractor for the construction of the
WWTF to that point with its claim of the portion thereof to be reimbursed by
Boulder.
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~rerrri: e~swTe ei:~iiiaPe er~r~+° s~s~ii es • a Q~~}p~Pti~ii ~j'~~l the contractor, Boulder shall respond to Nederland with payment of the
requested reimbursement amount that Boulder agrees is consistent with the
terms of this IGA up to $150,000.
d. Nederland shall notify Boulder upon reaching substantial completion of the
construction of the WWTF and shall concurrently provide to Boulder, copies
of all invoices it has received from the contractor subsequent to 50%
completion for the construction of the WWTF with its claim of the portion
thereof to be reimbursed by Boulder.
e. Within 45 days of receipt of the notice of substantial completion and invoices
from the contractor, Boulder shall respond to Nederland with payment of the
requested reimbursement amount that Boulder agrees is consistent with the
terms of this IGA up to $270,000 less the amount paid upon 50% completion
if only one equalization tank is constructed, or up to $370,000 less the amount
previously paid upon 50% completion if two equalization tanks are
constructed concurrently with the initial construction of the WWTF..
f. For any portion of the requested reimbursement amounts with which Boulder
disagrees, it shall respond with an explanation of the basis of its disagreement,
and the portion of this 1GA upon which it is relying to object to payment, and
such additional information as Boulder may need to agree to the disputed
portion of reimbursement.
g. If Nederland disagrees with the basis for Boulder's for disputing
reimbursement claimed, Nederland shall advise Boulder of the grounds upon
which it relies for claiming the disputed portion.
h. If no agreement can be reached between Boulder and Nederland, the Parties
shall use their best efforts to resolve the dispute in accordance with Section
9.a. below. Nederland's acceptance of partial payment from Boulder of any
requested reimbursement amount shall not constitute a waiver of Nederland's
right to claim or pursue the full reimbursement amount.
i. The acceptance of any payment by Nederland for reimbursement of
construction costs under this paragraph constitutes agreement to operate the
filtration and chemical precipitation process for phospbonis removal in
accordance with Paragraph-5 of this-IGA.. -Should-Nederland elect to
discontinue operation of the filtration and chemical precipitation process for
phosphorus removal prior to the time specified in Paragraph 5.e, of this IGA,
then Nederland shall pay to Boulder one-tenth of the total actual construction
costs reimbursed by Boulder for each year, or part of a year, in which the
phosphorus removal process is not operated., plus interest from the date of
substantial completion of the WWTF at a rate of 5% per annum.
Ai :derland acl 84ni~lder chap eaG11.G1PS1L atn rr rircePntati~ra to ix~~nm all
comments about plans, construction and inspection shall be made. The City's representative is
Ned Williams, Director of Public Works for Utilities, tel: 303-441-3200, e-mail
wiliiamsn@bouldereolorado.gov. The Town's representative is Jim Stevens, Town
Administrator, tel: (303) 258-3266, e-mail: jims@town.nederland.co.us.
5. After the WWTF is approved for operation by CDPHE, Boulder shall pay
Nederland up to $17,300 per year for operation and maintenance expenses for the filtration and
chemical precipitation processes of the WWTF under the following conditions:
a. The WWTF shall not exceed an average annual effluent concentration for
Total Phosphorus (TP) of 1.6 milligrams per liter (mg/1) based on a minimum
of one total phosphorus effluent composite sample per week for each week of
the year.
b. The WWTF shall not exceed an average monthly effluent concentration for
TP of 1.6 mg/l for the months of June through September based on a
minimum of one total phosphorus effluent composite sample per week for
each week during the months of June through September.
c. Each month, Nederland shall provide Boulder copies of the WWTF monthly
Discharge Monitoring Reports submitted to CDPHE for all CDPS permit
requirements. On or before December 31 of each year, Nederland shall
provide Boulder with all WWTF effluent TP data collected over the previous
year.
d. The reimbursement by Boulder to Nederland shall be for documented actual
costs of operation and maintenance directly related to the filtration and
chemical precipitation processes for phosphorus removal for each month in
which the criteria specified in Section 5.a. is met for the average annual
effluent concentration for January through December of the previous year.
Provided however, in order to receive payment for June, July, August or
September, Nederland must also meet the criteria of Section 5.b. for that
month. Any objection by Boulder to the reported actual costs shall be
handled by the same procedure as disputes of actual costs during construction
specified above. Reimbursement shall be made by Boulder for any
uncontested actual costs occurring in months that meet the specified criteria in
a single annual payment by February 28 of the subsequent year. The $17,300
maximum for the annual reimbursement by Boulder shall be adjusted annually
based on the Denver/Boulder All Items Consumer Price Index.
e. Boulder's obligation to reimburse Nederland for operation and maintenance
for the filtration and chemical precipitation process for phosphorus removal
shall commence in the year in which the WWTF is approved by CDPHE for
operation, and expire (a) December 31 ten years thereafter, or (b) when
CDPHE sets an average annual TP effluent limit of 1.6 mg/l, or less, for the
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occurs first.
f. Boulder shall submit any comments it may have on the operation and
maintenance of the filtration and chemical precipitation processes for
phosphorus removal at the WWTF to Nederland in writing. Nederland shall
consider the same and incorporate such comments into its procedures for
operation and maintenance of the filtration and chemical precipitation process
for phosphorus removal to the extent reasonably feasible.
g. Operation and maintenance of the WWTF complies with all applicable
federal, state and local laws and regulations.
b. By June 30, 2012, Nederland shall implement education programs concerning
water conservation and source water protection for users of the WWTF regarding phosphorus
use and other contaminants, such as personal care products and pharmaceuticals.
7. By January 31, 2010, Nederland shall adopt a water conservation ordinance for
indoor fixtures and appliances in new construction that is at least as stringent as the City's
existing requirements in Sections 11-1-48 through 11-1-51 of the BRC-
S. Boulder may obtain its own samples and perform tests of the discharge from the
WWTF upon 48 hours notice to Nederland. Boulder shall provide Nederland with a copy of the
results of any such testing.
9. General Provisions
A, Disap-eeinents. Both Parties agree in good faith to use their best efforts to resolve
disputes that may arise under this Agreement by direct consultation, facilitated
discussions, or mediation, if possible, before commencement of litigation; provided,
however, such procedures shall not be a condition precedent to the filing of litigation in
order to protect against the application of any statute of limitations.
B. Good Faith Negotiations. In the event that any party feels unreasonably constrained by
the terms of this Agreement at any time, the other parties shall bargain in good faith to
explore any adjustment of the terms of this Agreement which could relieve such
constraint, consistent with the spirit of this Agreement and the public interest.
C. No Indemnity and Hold Harmless. Neither parry is required to indemnify the other in
connection with this Agreement, except as set forth in this Agreement. However, each
party assumes responsibility for its actions and omissions in the performance or
failure to perform work under this Agreement, as well as the actions and
omissions of its agents and employees. Neither party waives or intends to waive
the limitations on liability which are provided to the Parties, their officers, and
employees under the Colorado Governmental Immunity Act, Section. 24-10-101
et. seq., C.R.S.
D. Annual Appropriation. The Parties' financial obligations under this Agreement in
future fiscal years are subject to annual appropriation in accordance with Colorado law.
E. Nature of Contributions. Contributions made by the Parties under this Agreement shall
be in the nature of funds, goods, and services only. Nothing in this Agreement shall be
construed as giving one party an ownership interest or any other interest in the property
or water rights of the other party.
F. Insurance. Nederland certifies that it is insured for property and general liability
coverages, including errors and omissions to the limits set forth in the Governmental
Immunity Act. Excess insurance is purchased above Nederland's self-insured
retention. A Certificate of Insurance shall be provided to the City outlining the
insurance policy limits.
G. Governing Law and Venue. All agreements among the Parties shall be construed and
interpreted in accordance with the laws of the United States of America and the State of
Colorado. Venue for any action shall be proper in the Twentieth Judicial District of the
State of Colorado and in the Federal District Court for the District of Colorado,
depending.upon the cause of action urged,
H. Integration Clause. This Agreement contains the entire agreement between the Parties
relating to the WWTF and may be modified only by an instrument in writing executed
by all of the Parties.
1. Effective Date. The terms of this Agreement will become effective upon the signature
of the approving officials of all of the Parties.
J. Notices. All notices under this Agreement shall be given by registered or certified
mail, postage prepaid, directed as follows, or as amended by notice given under
this paragraph, and shall be deemed given on the date of mailing:
Intended for Nederland:
Jun Stevens, Town Administrator
with a copy to: Public Works Director Tim Underwood
P.O. Box 396
Nederland, CO 80466
Intended for the City:
City Manager
With a copy to the Director of Public Works for Utilities
Post Office Box 791
Boulder, Colorado 80306
K. No Third Part Beneficiaries. The covenants and agreements contained in this
Agreement are for the benefit of Nederland and the City only, and do not create
any obligations or u ies to persons no p es Ilereto.
L. Authori . The Parties represent that the individuals executing this Agreement on their
behalf possess frill power and authority from their respective governing boards in
compliance with Colorado law.
M. No Waiver of Governmental Immunity. Neither Party intends to waive any application
of the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et, seq. Nothing
herein shall be construed as a waiver of said Act.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
duly authorized representatives as of the date indicated.
THE CITY OF BOULDER, COLORADO
By: `~k~~-~-`O .
Jane S. Brautigam, City Manager
Attest:
yCyril o keia~l ) e
Director of Finance and Re rd
Approved as to form;
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,'i- I-J. 0 j /J_ 6k,&L."
Ci y Attorney
Cpl o TOWI\T OF NEDERLAND, COLORADO
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SEAL
By: Martin Cheshes, Mayor
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Attest:c
Christi Icenogle, Town Cl lc
Approved as to fin; ?
Town Attorney