Opinion by
This case comes before us on remand from the Colorado Supreme Court for consideration of whether the intergovernmental agreement between the City of Duran-go and the County of La Plata is valid. Since we conclude the agreement is valid, we affirm the judgment of the trial court.
This action arose out of an intergovernmental agreement between the City of Du-rango (City) and La Plata County (County) which provided that the City would operate a mass transit system between areas in the City and the County. Pursuant to this agreement, the City establishes fares with advice and recommendation from the Transit Advisory Board which is made up of both City and County appointees.
Durango Transportation, Inc., (DTI) a private corporation which has authority from the Public Utilities Commission (PUC) to operate a mass transit system within the County, brought this action alleging that the defendants, the City, the County, and the Advisory Board, were infringing upon this authority. Among other things, DTI argued that the City could not operate beyond its jurisdiction without PUC authority and, thus, that the agreement which purports to allow such an operation is invalid.
The trial court dismissed DTI’s complaint, holding that the PUC had no jurisdiction over the City and County’s joint operation of a mass transit system within the County. Implicit in this holding was the finding that in operating a mass transit system, both the City and the County were operating as municipalities and were, therefore, exempt from PUC regulation when operating inside their respective boundaries. This court reversed the trial court’s ruling on that issue, finding that counties were not municipalities and, therefore, were not exempt from PUC authority.
Durango Transportation, Inc. v. City of Durango,
On remand the sole remaining issue to be addressed is whether the intergovernmental agreement between the City and the County is valid.
I.
DTI first contends that the agreement is unlawful under the Colorado Constitution and statutory law. We disagree.
The constitutional provision governing intergovernmental agreements, Colo. Const, art. XIV, § 18(2)(a), provides as follows:
“Nothing in this constitution shall be construed to prohibit the state or any of its political subdivisions from cooperating or contracting with one another or with the government of the United States to provide any function, service, or facility lawfully authorized to each of the cooperating or contracting units, in-eluding the sharing of costs, the imposition of taxes, or the incurring of debt.”
Similarly, the enabling statutory provision regarding such agreements states:
“Governments may cooperate or contract with one another to provide any function, service, or facility lawfully authorized to each of the cooperating or contracting units, including the sharing of сosts, the imposition of taxes, or the incurring of debt, only if such cooperation or contracts are authorized by each party thereto with the approval of its legislative body or other authority having the power to so approve.” Section 29-1-203(1), C.R.S. (1986 Repl.Vol. 12A)
DTI argues that the constitutional and statutory phrase “lawfully authorized to each” means that each contracting entity must be fully authorized to perform the subject activity. Essentially, DTI is arguing that this phrase means that the City can only contract with the County to perform those functions which the City could lawfully perform alone. Thus, according to DTI, although the City can operate a transit system within its own boundaries without PUC authority, pursuаnt to
City & County of Denver v. Public Utilities Commission,
Defendants, however, contend that this phrase means only that each contracting entity must be lawfully authorized to perform the subject activity within its respective jurisdiction. Thus, according to defendants, since both the City and County are authorized to operate mass transit systems within their respective boundaries, the activity is “lawfully authorized to each” and the agreement is valid.
In our view, the phrase “lawfully authorized to each” is susceptible to either interpretation and, thus, is ambiguоus. Therefore, to determine the meaning of this phrase, we must look to the statute as a whole and construe it in light of the legislative purpose it was designed to accomplish.
Parfrey v. Allstate Insurance Co.,
In addition, in determining the meaning of this phrase, effect must be given to other related statutory provisions,
see Buck v. District Court,
The legislative declaration to the enabling intergovernmental agreements statute provides that the purpose of this statute is:
“[To permit and encourage] governments to make the most efficient and effective use of their powers and responsibilities by cooperating and contracting with other governments, and to this end this [statute] shall be liberally construed.” Section 29-1-201, C.R.S. (1986 Repl.Vol. 12A)
In addition, countiеs have not only the powers which are expressly conferred on them, but also such incidental implied powers “as are reasonably necessary to carry out powers expressly conferred.”
Adams County Golf, Inc. v. Colorado Department of Revenue,
Similarly, cities also have “such implied and incidental powers, authority, and privileges as may be reasonably necessary, proрer, convenient, or useful” to carry out the powers and authority granted to them. Section 31-15-101(2), C.R.S. (1986 Repl.Vol. 12B); see also Colo. Const. art. XX, § 6.
In our view, this law demonstrates that cooperation between governmental entities through intergovernmental agreements should be encouraged and that the contracting entities should be deemed to possess the powers necessary to effectuate such agreements.
If the interpretation urged by DTI were adopted, then intergovernmental agreements could be made only when both entities had pre-existing functional and territorial authority to engage in the subject ac
In our view, to adopt this interpretation would not encourage governments to make the most efficient and effective use of their powers by cooperating and cоntracting with other governments as intended by the General Assembly. See § 29-1-201. Rather, we conclude it is more in accord with the statutory scheme to construe the phrase “lawfully authorized to each” to mean only that each entity must have- the authority to perform the subject activity within its jurisdictional boundaries.
This interpretation also is consistent with other jurisdictiоns which have considered this issue. In discussing a statute governing intergovernmental agreements similar to the one in this case, the California Supreme Court, in
City of Oakland v. Williams,
The California Supreme Court disposed of the auditor’s argument as follows:
“In substance, [the auditor] urges that the statute above referred to authorizing the joint exercise by municipalities of powers ‘common’ to them does not contemplate or permit the joint exercise of powers that may be sеparately or independently exercised by them, but only permits of the joint exercise of powers already possessed in common. Such a construction of the statute is strained and would render it meaningless. In other words, if municipalities possessed a power in common there would be no need for a statute authorizing their joint exercise. The statute means nothing if it does not mean that cities may contract in effect to delegate to one of their number the exercise of a power or the performance of an act in behalf of all of them, and which each independently could have exercised or performed.” (emphasis added)
See also School District v. Kansas City,
DTI asserts, however, that such an interpretation would allow a governmental entity to expand its authority by “sharing” the authority of another governmental entity. And, DTI argues, the only agency which can authorize the City to operate a mass transit system is the PUC. Therefore, according to DTI, by authorizing the City to operate beyond its jurisdictional limits in an intergovernmental agreement, the County has “usurped the PUC’s exclusive jurisdiction to regulate transportation.”
We agree with DTI that such an interpretation appears to infringe on authority the PUC would otherwise have when a city
Colo. Const, art. XXV provides that “[u]ntil such time as to the General Assembly may otherwise designate, [the powers to regulate public utilities] shall be vested in the Public Utilitiеs Commission.” The purpose of this article “was to grant to the General Assembly the authority to regulate privately owned public utilities
within
home rule cities.”
Denver v. Public Utilities Commission,
This article, however, specifically provides that it shall not be construed to apply to municipally owned utilities. The rationale behind the constitutional exemption of municipally owned public utilities from regulation by the PUC was discussed in
Town of Holyoke v. Smith,
“On principle it would seem entirely unnecessary to give a commission authority to regulate the rates of a municipally owned utility. The only parties to be affected by the rates are the municipality and its citizens, and, since the municipal government is chosen by the people, they need no protection by аn outside body. If the rates for electric light or power are not satisfactory to a majority of the citizens, they can easily effect a change, either at a regular election, or by the exercise of the right of recall.”
However, as examined in Denver v. Public Utilities Commission, supra, if the City is serving citizens outside its jurisdictional boundaries, these citizens would not have power to control the municipality and cannot “easily effect a change, either at a regular election, or by the exercise of the right of recall.” Therefore, in order to protect these citizens, the PUC has authority to regulate such extra-territorial activity.
As opposed to that situation, however, here there are two governmental entitiеs which control the terms of the service provided to the citizens. And, just like the citizens in the City, the citizens of the County here do “have the power to effect change in the governing board responsible for the quality of service provided by a county owned mass transit system operating within county boundaries.” City of Durango v. Durango Transportation, Inc., supra.
Thus, since each respective grouр of citizenry in the City and County can effect change through the electoral process, it follows that if they are dissatisfied with an intergovernmental contract entered into by their responsible governing boards, they can also exercise their rights by recalling the elected officers who approved the contracts.
Thus, there is no neеd for PUC oversight here since the contracting boards are directly responsible to their respective electorate. Recognition of the intent that these agreements be subject to the control of the citizenry is also evinced by the intergovernmental agreement statute which provides that such agreements may be entered into “only if [they] are authorized by each party thereto with the approval of its legislative body or other authority having the power to so approve.” Section 29-1-203(1), C.R.S. (1986 Repl.Vol. 12A).
Therefore, we conclude that allowing the City and County to “share” their respective authorities in an intergovernmental agreement so as to allow the City to operate a transit system in the County without PUC authority is not inconsistent with the purposes underlying the PUC regulations. See School District v. Kansas City, supra (The constitutional provision regarding intergovernmental agreements and the statutes implementing it “expressly authorize a cooperative effort which in its very nature denotes a division or sharing of that which is necessary to achievе the common end”).
Accordingly, because intergovernmental agreements are encouraged and because it is consistent with the regulatory purposes underlying PUC authority, we conclude
II.
DTI also contends that the intergovernmental agreement is invalid because there is not equal participation between the City and County in operating the transit system. Specifically, DTI argues that the City is solely responsible for the management and operation of the transit system whereas the County has no rоle in its operation, nor does it assume any liability with respect to the system. Thus, DTI argues, “all the County did was give the City the authority to operate a bus system in the county without PUC authority,” and such an attempt to circumvent the PUC’s authority should not be validated as a “true” intergovernmental agreement. We disagree.
The statute governing intergovernmental agreеments provides that “[a]ny such contract shall set forth fully the purposes, powers, rights, obligations, and the responsibilities, financial and otherwise, of the contracting parties.” Section 29-1-203(2), C.R.S. (1986 Repl.Vol.. 12A).
In our view, this statute is plain and unambiguous, and therefore, “our inquiry need go no further.”
Kane v. Town of Estes Park,
There is absolutely nothing in this statute which indicates that financial or management participation is required of each of the contracting entities. In addition, DTI has not cited any authority for its position that an arrangement, such as the one here, invalidates an intergovernmental agreement. Therefore, the fact that the County, by its own admission, was not in a financial position to contribute to the operation of the system or to incur any potential liability from its operation does not in any way impair or erode the contractual arrangement.
To the contrary, the “lead agency” concept in intergovernmental agreements, whereby one of the contracting entities is empowered to perform a function for the other contracting parties, has been endorsed by other jurisdictions which also have considered this issue. As previously discussed, City of Oakland v. Williams, supra, involved an intergovernmental agreement between seven municipalities. Pursuant to this agreement, one of the cities, the City of Berkeley, was solely responsible for performing the subject activity.
In inferentially validating this “lead agency” role, the California Supreme Court held that:
“In so legislating the Legislature recognizes that there are certain situations and problems that can best be met and solved by several governmental agencies acting jointly and permitting one of their number to act for all.”
See also School District v. Kansas City, supra (agreement which provides that district will erect, maintain, and operate library on city land without cost or charge to city is valid).
Here, the trial court found, and DTI does not dispute, that the City and County “have reduced their agreement to writing; have spelled out the duties and responsibilities of each; and have been authorized to contract by the legislative bodies of the respective entities.” Therefore, the trial court determined that the agreement comports with the requirements of the statute and is valid, and we agree.
Finally, DTI contends that the intergovernmental agreement here is invalid because the transit operation is “a proprietary, rather than a governmental function.” This contention, however, was raised for the first time in DTI’s reply brief. Since this issue was not presented to the trial court, we will not consider it on appeal. See People v. Czemerynski, 786 P,2d 1100 (Colo.1990).
Judgment affirmed.