The overriding goal of the County is to make available connection
to the system to all properties within the 201 service area and to
participate jointly with the City to provide policy direction for
operation and maintenance of the system.
The overriding goal of the City is that all new development
shall occur within, and be annexed to, the City, and under the City’s
land use jurisdiction.
The parties agree that these two goals can be accomplished together.
The Master Plan is the community’s best effort to identify
those areas of the Central Grand Valley that should be urbanized,
and those that should not.
(a) In addition, the parties have expressed their willingness and resolve
to guarantee, for themselves and for the Boards and Councils that
will follow, that:
(1) The City may continue to grow, in accordance with its Charter and
applicable State law;
(2) Within the 201, all annexable development, as herein defined, must
only occur within the City and under the City’s jurisdiction;
(3) The County shall continue to participate jointly with the City to
provide policy direction for operation and maintenance of the system;
(4) So that the integrity of the City and County planning efforts is
not threatened in the joint planning areas (herein defined), the parties
will not allow growth inconsistent with the Master Plan adopted by
each entity or by the Planning Commissions of each; or existing zoning;
and
(5) The City will continue to manage, operate and maintain the system
as it has done, subject to policy guidance by the Board of County
Commissioners and City Council, acting jointly, as provided herein.
(b) This agreement between the City and the County addresses the following
goals and community values:
(1) The system was constructed and will be operated for the benefit of
the current and future users in the 201;
(2) The agreement should resolve all issues that were in dispute in the
lawsuit;
(3) The pursuit of health and water quality on behalf of all citizens
is of the utmost importance;
(4) Continue quality management, operation, and maintenance of the system;
(5) Encourage connection of all properties within the 201 to the system
in the short term, rather than waiting for septic systems to fail;
and
(6) Agree on, and adopt, the boundaries of the 201.
(1998 Intergovernmental Agreement § A)
For this agreement, the parties agree to the following definitions
and meanings.
Annexable development:
includes nonresidential development, as defined herein, and
residential development, as defined herein.
City Council, City or Council:
the City Council of the City of Grand Junction, the City
Manager of the City of Grand Junction, or the City of Grand Junction
as an entity, as the context may require.
Development:
construction, improvement, or placement of a use on a parcel
or lot or other property. For this agreement, changes in intensity
of use, reconstruction of a building after demolition, rezonings and
the other activities or thresholds as defined in the body of this
agreement, are included within the definition of “development.”
It is intended that in cases which are not clear, an activity or property
be included within the term “development,” rather than
excluded. Below is a list of those activities, approvals and review
processes which will subject the applicant to being annexed by the
City prior to any land use review by the County. The following are
examples of annexable development, as defined in this agreement. This
list is intended to be illustrative only and not an all-inclusive
list of development types that would trigger land use review and approval
or annexation by the City.
(1)
Residential Annexable Development. In general, residential annexable
development includes any proposed development that would require a
public hearing under the Mesa County Land Development Code as it was
on April 1, 1998. Such development includes, but is not limited to,
any residential development that:
(i)
Is generally defined as single-family dwellings (detached and
attached), duplexes, triplexes, quadplexes, townhomes, multifamily
buildings, apartments, condominiums, rooming houses, boarding houses,
group homes, nursing homes, retirement homes, adult congregate living
facilities, hospices, or similar residential development. The term
does not include commercial facilities such as hotels, motels, hospitals,
penal/correctional facilities, or similar commercial or institutional
facilities;
(ii)
Requires a change to the Future Land Use Map of the Master Plan,
or a change to the text, exhibits, goals or policies of the Master
Plan, if requested by or on behalf of a property owner/developer;
(iii)
Requires a change in zoning applicable to a property or a change
in the text of the Mesa County Land Development Code as it existed
as of April 1, 1998;
(iv)
Requires a rezoning to planned development or planned unit development
(PUD);
(v)
Requires official development plan (ODP) approval for a planned
development or PUD;
(vi)
Requires preliminary plan approval for a planned development
or PUD, regardless of any previous approval of an ODP;
(vii)
Requires approval of a major amendment to an approved planned
development or PUD. A major amendment includes:
(A)
A change in density, number of lots or number of dwelling units;
(B)
A change in a permitted use(s); or
(C)
A change in dwelling unit type (e.g., detached, attached, townhome,
zero lot line, etc.);
(viii)
Requires approval of conditional use (except a home occupation);
(ix)
Requires approval of a special use (except a home occupation);
(x)
Results in the subdivision of land (including judicial and partition
action, but not foreclosure) whereby more than one additional lot
or parcel is created; or
(xi)
Requires approval of a subdivision plat or replat resulting
in the creation of more than one additional lot or parcel.
(2)
Nonresidential Annexable Development. In general, nonresidential
annexable development includes any proposed development that would
require a public hearing under the Mesa County Land Development Code
in effect on April 1, 1998, and any new or significantly non-residential
principal structure(s). Such development includes, but is not limited
to, any non-residential development that:
(i)
Is generally defined as commercial, industrial, institutional,
public (other than some property owned by Mesa County; see infra)
or any combination thereof, or any one of the foregoing in combination
with a residential use;
(ii)
Requires a change on the Future Land Use Map adopted as part
of the Master Plan, or a change to the text, exhibits, goals or policies
of said plan, as may be requested by or on behalf of a private property
owner;
(iii)
Requires a change in zoning or a change in the text of the Mesa
County Land Development Code;
(iv)
Requires a rezoning to planned development or planned unit development
(PUD);
(v)
Requires official development plan (ODP) approval for a planned
development or PUD;
(vi)
Requires preliminary plan approval for a planned development
or PUD, regardless of any previous approval of an ODP;
(vii)
Requires approval of a major amendment to an approved planned
development or PUD, such as:
(A)
A change in intensity, lot coverage or floor area ratio;
(B)
A change in a permitted use; or
(C)
A change in the location of a principal structure;
(viii)
Requires approval of conditional use (except a home occupation);
(ix)
Requires approval of a special use (except a home occupation);
(x)
Results in the subdivision of land (including judicial and partition
actions) whereby one or more additional lots or parcels are created;
(xi)
Requires approval of a subdivision plat or replat resulting
in the creation of one or more additional lot(s) or parcel(s);
(xii)
Results in the construction of any new principal structure;
(xiii)
Results in any existing principal structure of less than 10,000
square feet of gross floor area being enlarged to 10,000 square feet
or greater of gross floor area; and
(xiv)
Results in an addition of 10,000 square feet or larger of gross
floor area to any existing principal structure of 10,000 square feet
or greater of gross floor area.
Existing arrangement:
that state of affairs and status, with all attendant powers,
defenses, liabilities and duties, which existed the instant before
the lawsuit was dismissed.
Gross floor area:
the sum of the areas, expressed in square feet, at each floor
level of a structure including cellars, basements, mezzanines, penthouses,
corridors, lobbies, stores, offices, etc., and included within the
principal outside faces of exterior walls. Also included are all stories
or areas that have floor surfaces with clear standing headroom (six
feet, six inches minimum) regardless of their uses. The gross area
of any parking garage within a building shall not be included within
the gross floor area.
Jointly agreed upon infrastructure standards:
those standards to be agreed upon by the City and County
within one year of the signing hereof which include all necessary
technical construction specifications of roads, drainage, water, sewer
and other public or private utilities necessary to serve a nonresidential
or residential development.
Jointly:
a joint decision of the City and County. While the City and
the County may be required to act separately, according to applicable
law, no such action shall be effective until both bodies have adopted
identical actions, terms and provisions.
Joint Urban Area Plan (“JUP”):
means that portion of the Mesa County Countywide Land Use
Plan as shown in color on the City’s Future Land Use Map (adopted
October 2, 1996), along with the corresponding text, goals and policies.
Note that the colored portion is larger than the urban growth boundary.
Lawsuit:
Mesa County v. City of Grand Junction, 94 CV 233, Mesa County
District Court.
Lot:
a parcel of land as measured and established by a plat recorded
with the Mesa County Clerk and Recorder.
Master Plan:
also known as Comprehensive Plan, Growth Plan; for the purposes
of this agreement, it is Chapter 5 of the Mesa Countywide Land Use
Plan (October, 1996), also known as the Joint Urban Area Plan.
Parcel:
an area of land defined by a legal description and recorded
with the County Clerk and Recorder.
Principal structure or use:
the main or primary purpose for a structure or use on a property;
included are accessory structures which are attached to and architecturally
integrated with the principal structure.
Property:
includes the terms “lot” and “parcel,”
as defined herein. Adjacent or contiguous tax parcels, according to
the Mesa County Assessor, which are in identical ownership, shall
be treated as one property, parcel or lot, for the purposes of this
agreement. The term is intended to be inclusive and to refer to all
lands, grounds, and areas.
Public approval:
for any proposed use, development or change to either, an
approval which requires or involves a public hearing process, based
on the provisions of the County’s code and the administrative
practices in effect in Mesa County on April 1, 1998 (unless consented
to in writing by the City if the provisions or practices change).
Thus, if a subdivision of property requires a public hearing of some
sort, the subdivision cannot occur without “public approval.”
If construction can occur without a public hearing or public notice
of a meeting (for example, only staff review of a set of plans must
occur before the activity is authorized) no public approval is required
for the development. It includes, according to the County’s
adopted code as of April 1, 1998, any development, subdivision, platting,
planned or planned unit development (including all phases, steps,
and filings), conditional or other use permit, land use review, change
of use, change of intensity of use or other permitting process, permit
or approval applicable to land or structure thereon which requires
a public hearing.
Residential development:
includes single-family dwellings, multifamily homes, apartments,
townhomes and condominiums, and other dwelling places, along with
appurtenant structures, such as a club house which serves only the
residents of a particular subdivision, and which requires a public
approval.
Septic system:
all forms of State of Colorado and Mesa County Health Department
approved individual sewage disposal systems, as defined in State law
and State implementing regulations.
Septic system failure:
as defined by County Health Department or, in lieu of any
definition by the County Health Department, by the State of Colorado’s
statutes or implementing regulations.
Structure:
has the same meaning as is provided for in the most current
version of the Uniform Building Code, as published by the ICBO, or
a successor entity or uniform code, as adopted from time to time by
the City.
System:
the plant, and all lines, interceptors, and pipes, valves,
pumps and other facilities and appurtenant devices, including the
real property rights, necessary or used for the collection and transportation
of sewage and waste liquids to, and the operation and maintenance
of, the Persigo Wastewater Treatment Plant. “System” includes
all pipes and devices however large or small, including what has been
termed “backbone,” collection, trunks, et cetera, and
all necessary personal property needed to operate the system. See
sewer regulations as adopted by the City.
201 service area or 201 or Persigo 201:
as shown on the map GJMC §
45.08.100, “Persigo Exhibit A,” within which area it is intended that all properties shall be connected to, and served by the system, to the exclusion of septic or other individual sewage disposal systems.
Urban or urbanizing:
Within the JUP, any development or use other than residential
single-family dwelling(s) on lots, parcels or tracts which are smaller
than two acres in size, net.
Use:
the purpose for which land or a building is designed, arranged,
or intended, or for which is or may be occupied or maintained; also
includes any activity, occupation, business or operation which is
carried on or in a structure or on a tract or parcel of land.
(1998 Intergovernmental Agreement Exh. 1)
(a) The City Council and the Board of County Commissioners shall jointly
establish and provide policy direction relating to the system.
(b) No policy shall be effective until formally adopted by both the City
Council and the Board of County Commissioners.
(c) Policy means:
(1) Setting goals and objectives;
(2) Reviewing and adopting capital improvement plans and annual operating
budgets;
(3) Reviewing and setting system rates and fees;
(4) Entering into bond issues and other financing arrangements, adopting
or amending sewer rules and regulations;
(5) Adopting policies and philosophies which govern rate and capital
reviews and studies;
(6) Acting jointly regarding any changes to the 201. The parties recognize
that their joint decision and recommendation regarding the 201 boundary
may be subject to the approval of others pursuant to the Federal Clean
Water Act and implementing regulations; and
(7) Approving and entering into new sewer service contracts or amending
existing sewer service contracts with special districts, municipalities,
or other sewer service providers.
(d) In the event the parties fail to jointly adopt an annual operating
budget, the previously approved operating budget shall be the operating
budget.
(e) The parties agree that, unless required by a debt instrument or similar
obligation, the following shall apply to the system:
(1) Operating and maintenance reserves required by any debt instrument
will not be used for trunk line extension or plant expansion;
(2) Jointly adopted differential fees and charges may be used to encourage
infill;
(3) Plant investment fees and monthly charges may be established to meet
anticipated future capital needs and inflation indexing; and
(4) The plant investment fee will be put into an expansion fund until
plant usage reaches 90 percent of capacity, at which point construction
is expected to expand the plant capacity. After such construction,
expansion fund moneys may be accumulated for future uses or may be
used to plan and construct new or replacement facilities.
(f) Arbitration.
Subject to the overriding provisions of GJMC §
45.08.070, Remedies, in the event of a dispute of any matter determined by either body to be necessary to effectuate this agreement or to establish any policy, the parties shall first mediate the dispute. If mediation does not resolve the dispute, the parties shall each state its position in writing and deliver the same to the other party. If, within 10 days of the delivery of such writings to each party, the parties have not resolved the dispute, the parties shall proceed to binding arbitration. Each party shall designate an arbitrator of its choice and the two designees shall designate a third. Arbitration shall be subject to the rules of the American Arbitration Association. Expenses of mediation and arbitration shall be shared jointly by the parties.
(g) The 1998-1999 existing system capital improvement plan, and existing operating budgets, and the sewer rules and regulations (to the extent not inconsistent with this agreement) and the boundary of the 201 as indicated on “Persigo Exhibit A,” GJMC §
45.08.100, are hereby continued and ratified until jointly modified.
(1998 Intergovernmental Agreement § B)
(a) The parties agree to provide for, encourage, and assist growth of
the City through annexation by the City of all annexable development
within the boundaries of the 201. In the event of a question, the
parties agree that annexation is to occur, unless prohibited by applicable
law or this agreement.
(b) The parties shall jointly develop appropriate incentives to encourage
annexation to the City. If a neighborhood or other area petitions
or elects to be annexed to the City, the County and the City may jointly
fund incentives. As allowed by available money, the incentives may
include, but are not limited to, parks, roads, fire stations or road
improvements.
(c) The parties agree to implement this agreement, in letter and in spirit,
through the various tools, plans and powers of each party, including
but not limited to the adopted codes of each, the policies and procedures
of each, and the agents and employees of each. Throughout the term
of this agreement, the parties agree to continue to amend and adopt
such provisions as are authorized and necessary to implement all provisions
and goals of this agreement.
(d)
(1) The parties acknowledge the importance of adoption of, or implementation
of, and compliance with, the Master Plan. The parties shall implement
the Master Plan through their resolutions, ordinances or other actions
or shall comply with the zoning existing as of the date of this agreement.
The parties may jointly allow for exceptions, in writing.
(2) When one party approves an amendment or other change to the Master
Plan for property within such party’s jurisdiction, if the other
party does not consider and decide whether to amend within 30 calendar
days of the first party’s approval, the amendment shall be deemed
approved.
(e) To maintain the integrity of the Master Plan, and the implementation
of it, and for other reasons, the parties agree that any property
within the 201 should eventually develop at an urban level of density.
For this agreement, residential lot sizes of two acres gross or larger
are deemed to not be “urban” while smaller parcel or lot
sizes are deemed to be “urban.” The parties agree to amend
the 201 to implement this principle.
(1998 Intergovernmental Agreement § C)
(a) Neither contemporaneous annexation to the City, nor a power of attorney
to annex later, shall be required as a condition of service by or
connection with the system, subject to, and in accordance with, the
several provisions hereof. However, annexation is required pursuant
to this agreement in order to implement the goals and objectives of
this agreement.
(b)
(1) Over time all properties within either the UGA or the 201, as those
boundaries are adjusted and amended pursuant to this agreement, will
be annexed by the City. The parties agree that the UGA and the 201
should be the same, although amendments are required to accomplish
this consistency, except that Clifton Sanitation District I and II
will be excluded from the 201. All land use review of whatever form
of any annexable development within the 201 boundary, beginning with
the very first contact with the planning offices or departments of
the parties (such as a pre-application conference or the acceptance
of any application or permit request), shall exclusively occur in,
and be exclusively subject to the land use jurisdiction of, the City
through the development review or other review process.
(2) Until the tenth anniversary of the signing of this agreement, the
City shall not annex outside of the 201 or the UGA unless the Board
of County Commissioners consents.
(c) All decisions relating to infrastructure standards, location and
similar technical matters for annexable development shall be performed
by the City pursuant to City standards and requirements, even if an
earlier phase or portion of an annexable development had occurred
without City review or process or standards. Within the 201, the parties
shall jointly agree upon the infrastructure standards which shall
be followed throughout the 201. The parties shall agree on such standards
within one year of execution of this agreement. Thus, the general
principle to accomplish the goals of this agreement, and to replace
the existing arrangement is that no annexable development in the 201
shall, after the effective date of this agreement, occur except through
the City’s land use process and after annexation to the City
is completed. The City Council may allow the land use review process
of annexable development to proceed along with the annexation, as
required by the City.
(d) Except as provided in subsections
(i) through
(k) of this section, any proposed nonresidential (including but not limited to commercial, industrial, institutional or public, e.g., schools, churches) use or development which fits at least partially any one or more of the following criteria shall first annex to the City prior to, or concurrent with, review and approval of the development proposal. Even if the developer or applicant would experience a delay, the City shall require that annexation shall occur forthwith so that the City has complete land use authority over the proposed development from its initial planning and review stages. Those criteria are as follows:
(1) Any development requiring a change of the text of, or to any map
which is a part of, the adopted Joint Urban Area Plan;
(2) Any property, or portion thereof, the owner of which has requested
or applied for a rezoning or any change to a planned zone or any amendment
to any planned zone;
(3) Any subdivision of property that results in the creation of one or
more additional lot(s), parcel(s) or tax parcel(s). Judicial and partition
actions are included within the definition of “subdivision.”
Notice of any such judicial or partition action shall be given to
the City;
(4) Any use or development requiring a conditional use permit, except
a home occupation located in a residence;
(5) Any new principal structure;
(6) Any addition to an existing principal structure which contains less
than 10,000 square feet of gross floor area if, following the addition,
the gross floor area of the structure is equal to or greater than
10,000 square feet; or
(7) Any addition of 10,000 square feet of gross floor area or larger
to an existing principal structure of 10,000 square feet or more of
gross floor area.
(e) The County hereby agrees to sign such documents as are reasonably
necessary to complete every annexation initiated or completed by the
City within the 201 which reasonably complies with the Annexation
Act and the provisions of this agreement.
(1) Specifically, the parties agree that the County may intervene, sue
or otherwise take action against or contrary to any City effort to
annex any property within the 201 only if:
(i) The City is not complying or reasonably attempting to comply with
the Annexation Act and this agreement; or
(ii)
The property involved is County park, recreational property
or other property such as courthouses, jails, maintenance yards, Intermountain
Veterans Memorial Park, and the offices or buildings of the County
Clerk and other County officials.
(2) The County specifically consents to the annexation of all or a portion of any road, street, highway, easement, right-of-way, open space or other County-owned property, unless excluded in subsection
(e)(1)(ii) of this section, at any time for any purpose consistent with the terms of this agreement.
(3) For or on behalf of any third party, the County shall not intervene,
sue or otherwise take action against or contrary to any City effort
to annex pursuant to the Annexation Act and this agreement. Even though
the County is granted standing by the Annexation Act or otherwise,
the County agrees not to exercise such right, to require an election
for, or contest any annexation in the 201, unless inconsistent with
the Annexation Act.
(f)
(1) Annexation techniques such as the use of “flagpole(s),”
including the annexation of all or any portion of any right-of-way,
street, easement or road, may be used by the City to accomplish annexations
and the objectives of this agreement. The City agrees to minimize
the use of “flagpoles,” other than the use of linear strips
(normally portions of a right-of-way or other roadway), when establishing
contiguity and compliance with the Annexation Act.
(2) The City may require that annexation be completed prior to issuance
of any final development approval and the City may complete annexation
prior to initiating any development review. The City may choose to
allow a land use application or proposed use to proceed contemporaneously
with the annexation process.
(3) Other parcels shall not be involuntarily included in an annexation petition prepared or controlled by the City pursuant to subsection
(f)(2) of this section. However, if a majority of property owners file a petition to annex, the minority may be annexed involuntarily without violating this agreement.
(4) The parties agree that a “pole” of a “flagpole”
annexation does not create an enclave. The City agrees that it will
not attempt to use any “pole” to create or “close”
an enclave.
(5) All phases, filings, or portions of any property subject to a public
approval such as planned developments, official development plans
(“ODPS”), and any other process or step whereby a portion
of one or more tax or other parcels are reviewed or evaluated (even
though such parcels, lots or properties are not expected to be finally
approved, subdivided or zoned at the same time) are to be treated
as one property, and therefore all such phases, filings or portions
shall be annexed to the City when the first such phase, filing or
portion of property is reviewed and/or annexed.
(g) Powers of attorney for annexation (“POAs”) or other instruments
which provide for the exchange of sewer for an agreement to annex
(only such documents shall be called POAs for purposes of this agreement)
which were entered into or recorded as of the dismissal of the lawsuit
will not be used by the City to effect annexation during the time
this agreement is in effect.
(h) Any POA which has not been exercised or released as of December 31,
2005, will be canceled on or before that date by formal action by
the City Council. Such notice of cancellation, which shall be recorded,
shall provide that the cancellation is subject to the several terms
of this agreement.
(i) Redlands.
Within that portion of the 201 which is west/south of the Colorado River and west of the Gunnison River, (termed the “Redlands” in this agreement), and which is shown more particularly in GJMC §
45.08.100, “Persigo Exhibit A”:
(1) For any residential development, no permit or approval shall be given
for such development if any portion of the property is within one-quarter
mile (1,320 feet) of any portion of the City limits, as those limits
change from time to time, except through the City’s land use
process and until the property is annexed to the City. The County
shall refuse to review or approve any such development proposal; and
shall refer the applicant to the City which shall process and decide
if the permit, application or proposed development shall be approved.
The City may require that annexation be completed prior to initiation
of any land use review process by the County, or the City may choose
to allow a land use application or proposed use to proceed contemporaneously
with the annexation process.
(2) Regardless of proximity to the limits of the City, all nonresidential
annexable development on the Redlands shall be exclusively processed
and evaluated by, and possibly approved only after it is annexed to,
the City. The City may elect to begin the land use review process
prior to completion of the annexation process if the City has land
use jurisdiction as determined by the City.
(j) Eastern Area.
(1) Any proposed annexable development of any property within the 201 and which is partially or wholly WEST of the line shown in GJMC §
45.08.100, “Persigo Exhibit A,” and which will be referred to as “The Line,” shall be exclusively processed and reviewed by, and annexed to, the City.
(2) Until December 31, 2005, all nonresidential annexable development
and any residential development which requires a rezoning to higher
density, which is east of “The Line” will be exclusively
processed by, and annexed to, the City.
(3) On or after January 1, 2006, “The Line” shall no longer have any force or effect: any annexable development any portion of which lies within the 201 shall be processed and reviewed exclusively by and annexed to the City, except for property on the Redlands which shall continue to treated in accordance with subsection
(i) of this section.
(4) To the extent that property, upon annexation to the City, is excluded
from the Clifton Fire Protection District (“Clifton Fire”),
the City promises to pay to Clifton Fire that amount of money which
would have been received by Clifton Fire by virtue of its current
mill levy as applied throughout Clifton Fire which would have applied
absent exclusion, subject to the ongoing requirement that Clifton
Fire shall continue to provide its full services to the excluded property.
(k) Orchard Mesa.
(1) For properties south of the Colorado River and east of the Gunnison
within the 201 (“Orchard Mesa”), there shall be no development
nor uses approved in the area east of 30 Road, west of Highway 141
(32 Road) which are connected to the system except the already fully
developed subdivision “Valle Vista.” Structures lawfully
existing as of the date hereof which are within 400 feet of the existing
sewer service line which connects to Valle Vista may be connected
to that Valle Vista sewer line.
(2) Development of any property any portion of which is west of 30 Road,
on Orchard Mesa, which meets the criteria of annexable development
shall only occur within the City and contemporaneous with annexation
and City review and approval.
(3) The parties shall commit to a successful resolution with Orchard
Mesa Sanitation District (OMSD) of resolving the OMSD debt related
to construction of the Valle Vista sewer service line described above.
(l) Appleton Service Area.
The Appleton service area is
defined by Exhibit A of the Resolution known as MCM-98-51 (County)
also known as Resolution 22-98 (City). Annexation of existing residential
development is not required in order to obtain sewer service; however,
annexable development within the Appleton service area shall be annexed
similar to other annexable development as provided herein.
(m) Clifton.
Property which is east of “The Line”,
south of I-70B and which is within the Clifton Sanitation Districts
I or II is not annexable development under this agreement and may
develop without annexation to the City.
(1998 Intergovernmental Agreement § D)
(a) The parties agree that all property within an enclave shall be unilaterally,
in accordance with the procedures provided for in the Annexation Act,
annexed by the City on or before the fifth anniversary of the creation
of the enclave.
(b) In an effort to eliminate duplication of services provided to the
enclaves, the parties may contract with each other concerning urban
services to be provided to enclaves and “flagpoles.”
(c) The City and County will work toward amicable annexation of enclaves
to the fullest extent possible.
(d) Until annexation of an enclave is final (i.e., all appeal periods
have expired for any protest or appeal and all litigation contesting
any such enclave in whole or in part is finally adjudicated following
the completion of all appellate proceedings), the County shall continue
to provide its ordinary services (unless otherwise agreed in writing
with the City) throughout such enclave.
(e) The County agrees to complete the capital planning, expenditures
and construction of improvements which are identified in the County’s
adopted two-year budget and in the County’s adopted two-year
capital plan with respect to a portion or all of any enclave area,
notwithstanding that the area, or a portion of the area, has been
annexed.
(1998 Intergovernmental Agreement § E)
(a) This agreement can be amended or terminated only with the concurrence
of both parties as expressed in a joint resolution passed by a majority
vote of the City Council and the Board of County Commissioners respectively,
except as otherwise provided herein.
(b) Each party shall have the right to enforce each and every provision
hereof, using the right of specific performance or otherwise. The
court shall award the prevailing party its reasonable attorney’s
fees and costs.
(c) If either party breaches or otherwise fails to comply with the terms
and goals of this agreement, the parties agree that, upon declaration
of a court of competent jurisdiction, to the fullest extent allowed
by law, all of the breaching party’s right, title, and interest
to the system shall immediately and irrevocably vest in the nonbreaching
party. The parties term this remedy “Here are the Keys.”
(d) If a court of competent jurisdiction determines that the “Here
are the Keys” remedy is not enforceable for whatever reason,
or if, due to the actions or inactions of a third party or intervening
force, either party is not able to obtain the benefit of its bargain
or is not able to accomplish the goals of that party, the court shall
enforce as many provisions and terms hereof as are consistent with
such goals and benefits. In addition, if the City’s goals and
benefits are not able to be met, the City may require that no development
of any kind within the 201 shall occur except upon annexation to the
City.
(e) The parties desire that the agreement shall be perpetual, so long
as the terms and goals of this agreement are being accomplished, and
the benefits are being realized. If there comes a time that the “scope”
of this agreement needs to be expanded in order to continue the City’s
role as the urban services provider, and other method or methods of
accomplishing land use review and control by the City in urbanizing
areas are necessary, or to continue the County’s role as a co-manager
of the system and as a policy decider of the system, the parties agree
to negotiate reasonably. In the event they cannot agree, either or
both may request that the court fashion such a modification of the
terms hereof, based on then existing law and circumstances, as will
satisfy the goals and intents of the parties and allow each to obtain
the benefit of this agreement.
(1998 Intergovernmental Agreement § F)
(a) Within one year of the effective date hereof, the parties agree to,
in good faith, amend the urban growth boundary, or the 201, or both,
so that such boundaries and areas are identical.
(b) The provisions of this agreement are not assignable without the specific
consent of the parties, which consent may [not] be unreasonably withheld.
(c) This document is intended to be an intergovernmental agreement (IGA),
pursuant to the several powers of the parties, including but not limited
to C.R.S. §
29-1-201,
et seq., C.R.S. §
29-20-101, et seq., C.R.S. Title
30, especially Articles
11,
15, 20 and 28 thereof, and the statutory and home rule powers of the City. It is intended that this agreement replace the existing arrangement.
(d) The three existing contracts, between the City and Orchard Mesa Sanitation
District, Central Grand Valley Sanitation District and Fruitvale Sanitation
District, respectively, which districts are served by the system,
shall remain unchanged by this agreement.
(e) This agreement shall not grant any status or right for person or
any third party, specifically any owner of any property, to make any
claim as a third party beneficiary, or for deprivation of any right,
violation of any vesting of rights, inverse or other condemnation,
or other theories. The parties intend this agreement to be for their
benefit only, to resolve issues between these two governments.
(f) Generally Accepted Accounting Principles (“GAAP”), as
published by the Government Accounting Standards Board (“GASB”),
which are standards applicable to local governments, will continue
to apply to the system.
(g)
(1) The parties also agree that the failure of either to implement each
and every term of this agreement shall constitute a breach.
(2) Because of the severity of a declaration of a breach, a party desiring
to declare a breach shall first, in writing, inform the other party
of the basis for the breach, including as much detail and specificity
as is possible. The other party shall have 120 calendar days to either
cure the breach or to inform the other party what steps are being
taken, in a reasonable time and with reasonable efforts, to cure the
breach. If the one hundred twentieth day falls on a holiday or weekend,
the party shall have until the following day which is not a holiday
or a weekend to cure or inform. No breach shall occur without a court
of competent jurisdiction having declared so.
(3) Either party may ask for direction from the court, in the form of
a declaratory judgment, in anticipation of a breach argument being
made by the other party.
(h) The City as operator and manager will acquire and own any and all
new and/or additional real and/or personal property or property interest
only under the name and style of “the City of Grand Junction,
Colorado, for the benefit of the Persigo 201 sewer system.”
(i) The City shall manage, operate, and maintain the system for the benefit
of the current and future users of sewer service in the Persigo 201,
according to sound utility practices and principles and, except as
otherwise provided herein, without regard to whether or not current
and future users of sewer service in the Persigo 201 are located within
or without the boundaries of the City.
(j) Other matters, decisions and issues which have been decided by the
City, acting as manager, shall continue to be decided by the City,
unless included in the definition of policy provided in this agreement.
For example: the City may, as the manager, accept a bid which is within
budget, without obtaining any further approval from the Council or
the Board of County Commissioners; the City, acting as the manager,
has complete authority, subject to policy direction as provided for
herein; all system employees who operate and manage the system will
continue under the City’s personnel, pay and benefit system;
matters of insurance, employee discipline, benefits, and similar questions,
shall continue to be determined by the City.
(k) Policy decisions and guidance shall be provided at joint meetings
which shall occur at least annually. At least one of these meetings
shall occur before July of each year so that any policy decisions
(including changes to the boundaries of the 201) may be implemented
by the City in the proposed budget for the joint system for the subsequent
year. The City shall inform each special district of proposed rates
for the subsequent year by September 1st of each year so that each
district has reasonable advance information upon which to base its
own budget projections.
(l) Rate studies shall be made by outside consultants at least every
five years, or more often at the joint request of the City and County.
(m) Since attorneys for both parties may, from time to time, give legal
advice to either or both parties regarding policy directives, management,
operation, and/or maintenance of the system, neither party shall assert
against the other any attorney-client privilege with regard to any
communication involving either party and either party’s attorney,
which communication occurred prior to the giving and receiving of
written notice of a disagreement pursuant to this agreement.
(n) Except as provided in GJMC §
45.08.050(b), with regard to property outside of the 201 or the UGA, this agreement shall in no way limit or expand the existing powers of the City.
(o) In any zoning or other land use decision undertaken by the City,
those persons who own property which is within the area of the City’s
standard notification and which is not within the City’s limits
shall be entitled to the same rights of appeal and participation in
the land use review process as City residents.
(p) The parties agree to the definitions as shown in GJMC §
45.08.020.
(1998 Intergovernmental Agreement § G)
(a) If a term or the application of this agreement is ambiguous or cannot
otherwise be determined, these rules, in the order presented, shall
guide resolution of the question:
(1) Annexation of the property to the City should be accomplished;
(2) Sewer service to all properties within the 201 shall be provided;
(3) The other terms and provisions hereof shall be implemented.
(b) The goals and community values as referred to herein are properly
used to construe this agreement.
(c) In the event there exists a conflict between the body of this agreement
and any exhibit to this agreement, the body of this agreement shall
prevail.
(d) If a conflict exists between this agreement and any other document
executed or adopted by either party and necessary to and associated
with operation of the system, this agreement shall prevail, except
as otherwise provided for herein.
(e) This agreement is not intended to be and shall not be interpreted
to be in derogation of any rights of the trustee or the bondholders
pursuant to Mesa County Resolution No. MCM 92-160 (Series 1992).
(f) In the event this agreement is deemed to be ambiguous or vague, the
parties agree that the rule that ‘ambiguities shall be construed
against the drafter,’ or similar rules of construction, shall
not apply because this agreement is a result of mutual negotiation
and drafting.
(1998 Intergovernmental Agreement § H)
See map on following page.
(1998 Intergovernmental Agreement Exh. A)