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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/20/2021 - ITEMS RELATING TO POST-FIRE WATERSHED RESTORATION Agenda Item 21 Item # 21 Page 1 AGENDA ITEM SUMMARY April 20, 2021 City Council STAFF Matt Zoccali, Environmental Regulatory Affairs Manager Mark Kempton, Water Production Manager Cyril Vidergar, Legal SUBJECT Items Relating to Post-Fire Watershed Restoration Treatments and Operational Costs. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 046, 2021, Making Supplemental Appropriations, Appropriating Prior Year Reserves, and Authorizing Transfer of Existing Appropriations for Post -Fire Watershed Restoration Treatments and Operational Costs Associated with Treating Fire -Impacted Water Supplies. B. Resolution 2021-037 Authorizing the City Manager to Sign an Intergovernmental Agreement with City of Greeley and Larimer County to Facilitate Cost-Sharing Processes for Post-Fire Watershed Recovery Activities. This Ordinance, unanimously adopted on First Reading on March 16, 2021, appropriates funds for the unanticipated needs of post-fire watershed restoration treatments and operational costs associated with treating water supplies impacted by the 2020 Cameron Peak wildfire. A change is being made to this Ordinance on Second Reading to clarify that the PILOT proceeds being transferred to the City’s General Fund are not being appropriated for spending on post fire watershed treatments. Those proceeds will reside in the General Fund until a future municipal purpose is identified. The Resolution authorizes an intergovernmental agreement (IGA) with the City of Greeley and Larimer County to facilitate the cost-sharing processes for post-fire watershed recovery activities. Details of this IGA were provided in the first reading Agenda Item Summary for the appropriation ordinance. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading and the Resolution. ATTACHMENTS 1. First Reading Agenda Item Summary, March 16, 2021 (w/o attachments) (PDF) Agenda Item 12 Item # 12 Page 1 AGENDA ITEM SUMMARY March 16, 2021 City Council STAFF Matt Zoccali, Environmental Regulatory Affairs Manager Mark Kempton, Water Production Manager Cyril Vidergar, Legal SUBJECT First Reading of Ordinance No. 046, 2021, Making Supplemental Appropriations, Appropriating Prior Year Reserves, and Authorizing Transfer of Existing Appropriations for Post-Fire Watershed Restoration Treatments and Operational Costs Associated with Treating Fire-Impacted Water Supplies. EXECUTIVE SUMMARY The purpose of this item is to consider an appropriation of funds for the unanticipated needs of post-fire watershed restoration treatments and operational costs associated with treating water supplies impacted by the 2020 Cameron Peak wildfire. This AIS summarizes the current and anticipated impacts from the 2020 Cameron Peak wildfire on water quality, water treatment and water supply planning, and expected funding needs for post-fire watershed restoration and to support water treatment operations in 2021. Staff will also provide a summary of an IGA for cost-sharing the needed post-fire watershed restoration treatments with partnering public water providers. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The unprecedented 2020 summer and fall wildfire season resulted in nearly 400,000 acres of burned landscape in critical watersheds that provide source water supplies to communities in Larimer and Weld counties, including Fort Collins and Greeley. These communities receive water supplies from the Cache La Poudre River, the Colorado-Big Thompson (CB-T) system, and associated high mountain reservoirs, which were impacted by the Cameron Peak and East Troublesome wildfires. Northern Water (Conservation District) is managing the response and recovery to the East Troublesome Fire. The work proposed in 2021 pertains specifically to impacts from the Cameron Peak Fire. The after-effects of widespread forest fires typically include more frequent and flash flooding following rain and snowmelt runoff events, leading to increased ash and sediment in rivers, increased likelihood of debris flows, and an overall degradation of water quality, particularly after thunderstorms. The water quality impacts of post-fire debris and sediment flows following rain events are often sudden, severe, and can render the Poudre River water supply temporarily untreatable. In these cases, as followed the 2012 High Park Fire, the ability to rely on Horsetooth Reservoir water is critical for the continuity of water treatment operations. Real-time water quality sensors on the Poudre River ensure changes in water quality are detected early enough to allow City water utility operations to effectively bypass the river water until conditions improve. The primary purpose of post-fire treatments like the application of mulch or other groundcover, is to decrease erosion and hold soil in place, thereby giving the chance for vegetation to reestablish and minimize the downstream impacts to property, infrastructure, water quality and aquatic life. In cases where stabilization is not ATTACHMENT 1 Agenda Item 12 Item # 12 Page 2 feasible or is ineffective, downstream treatments like wattles or sediment catchment basins are designed to spread out, capture or relocate sediment and debris, keeping it off roadways and away from homes and water supply infrastructure, and out of the main river channel. POST- FIRE WATERSHED RECOVERY APPROPRIATION A group of regional stakeholders, referred to as “Water Providers”, worked with a consultant (JW Associates) to develop an initial watershed assessment of post-fire conditions to identify priority areas for mitigation treatments. (Attachment 1) The assessment incorporated various public data sets including slope, soil burn severity, debris flow probabilities, and hillslope sediment delivery estimates. Other factors considered included the location of key water supplies, land ownership and management designations (e.g., Federal Wilderness Areas). This approach has initially identified approximately 10,000-18,000 acres of moderate to severely burned areas that meet criteria suitable for treatments, at an estimated cost of $19 - $38 million dollars, depending on the type and extent of treatments. The typical types of treatments considered included aerial wood shred mulching, installation of straw erosion wattles, sediment catchment basins, and stream grade control structures. Studies conducted after the 2012 High Park Fire, supported a broader body of research showing that wood mulching is highly effective at reducing hillslope erosion. The working assumption when approaching this type of post-fire mitigation work is that there is greater cost-benefit to holding the sediment on the hillslopes than later dredging it out of the river, reservoirs, and diversion structures. While the treatment needs far outweigh the financial resources available for post- Cameron Peak Fire work, the prioritization process for selecting treatment areas will allow the City and other Water Providers to maximize the benefit of all available financial resources. Many uncertainties remain around the extent and timing of the start of post-fire recovery work. As soon as the weather and ground conditions allow, the areas initially identified as highest priority for treatments need to be field-verified to ensure the feasibility of actual treatment application and construction. The target start for aerial mulching is May - June, or as soon as target areas are snow-free. A second assessment of needed treatment will likely occur in Fall of 2021 to identify remaining treatment needs not addressed during the initial implementation phase (Spring and Summer of 2021). This future work would be addressed with any remaining funds from 2021 and future appropriation requests as needed. Other uncertainties include the ultimate number of cost-sharing partners, the amount of available State grant funds, the outcome of efforts with Federal and State delegates to appropriate additional funding assistance, and the possible eligibility of use of said funds on USFS lands, including in federally designated Wilderness Areas. Staff are engaged in discussions with various State and Federal agencies as well as Congressional representatives and State leaders to convey the need for additional funding resources for fire recovery. Ultimately, the availability of additional State and Federal assistance funds could significantly increase and in turn, would greatly help minimizing post-fire impacts to water supplies. The timing on any of these decisions is unknown and the urgency of the work requires moving forward with currently available resources. Proposed Post-Fire Emergency Watershed Treatments & Associated Costs ($4,000,000)  Aerial Wood Mulching of highest priority areas = $1,000 - $3,000 / acre o $3.7 Million addresses 2,500 - 7,500 acres out of the 10,000 acres identified as highest priority.  Wattles, stream grade control, sediment catchments = $265,000  Project Management Support = $35,000 WATER TREATMENT OPERATIONS Staff estimates unanticipated operating and capital costs for the Water Treatment Facility associated with the wildfires of up to an additional $1,000,000 in 2021. As more is known about the impacts of both fires on the City’s water quality and water supply, work items and estimated costs may be revised. In the meantime, Utilities staff will work to mitigate unanticipated costs and find innovative and practical solutions to this unprecedented event. Agenda Item 12 Item # 12 Page 3 2021 Unanticipated Water Treatment O&M and Capital cost estimates ($1,000,000) Poudre Intake sediment removal = $500,000 Additional water treatment chemicals = $300,000 Solids handling/drying temporary improvements = $50,000 Water treatment and watershed studies/monitoring = $50,000 Joe Wright Reservoir Mitigation = $50,000 Potential water restrictions outreach and staffing = $50,000 The Water Shortage Action Plan (adopted by Council in 2020) outlines a process for reviewing and evaluating demand management needs to respond to potential water shortages, which could be exacerbated by post-fire impacts to water quality. Facing uncertainty around water quality this year, staff is working to be prepared for a potential water shortage. On March 18, staff will get input from Water Board on a voluntary approach, to create customer awareness, as monitoring and evaluation continues. Following Water Board’s review, a recommendation will be provided to the City Manager. INTERGOVERNMENTAL AGREEMENT FOR COST-SHARING CAMERON PEAK WILDFIRE RECOVERY TREATMENTS The City, City of Greeley and Larimer County propose entering into an IGA regarding cost-sharing and reimbursements for post-fire treatments approved under the federal Natural Resources Conservation Service (NRCS) Emergency Watershed Protection (EWP) assistance program. Staff will bring a resolution for approval of the IGA for consideration on April 20, 2021 with second reading of the appropriation ordinance. (Attachment 2) The purpose of the NRCS EWP Program is to fund emergency hillslope stabilization measures on private and State lands, designed for the protection of life and property, including community water supplies. Larimer County and Greeley were approved as fiscal sponsors for this program and contracted with the NRCS for the use of and reimbursement of recovery expenses up to 80% for construction and 100% for technical assistance. The 20% cost share for construction projects (treatments) will be shared between participants of this agreement. Under Greeley’s sponsor agreement, they will be responsible for addressing necessary watershed and water supply protection treatments and Larimer County will address private resident needs and critical road, bridge, and other infrastructure outside of the public right of way. The City does not anticipate cost-sharing for projects under the County’s scope of EWP work, except for where a particular project provides mutual benefit for water supplies as well as private property infrastructure. The proposed IGA identifies the City, Greeley and Larimer County as the Managing Entities and is designed to allow additional parties (Participating Entities) to join, as they can bring funding for projects relevant to their interests. This structure provides flexibility for adding partners as treatment needs are identified and enables participants to direct funding to projects that address their specific values at risk. The proposed agreement has provisions for identification and funding of projects based on share interest of parties. It specifies that Greeley will receive reimbursement of 80% of costs of work completed under the NRCS EWP contract and the remaining 20% cost-match will be divided among the Managing and Participating Entities for the specified projects. The conventional cost-sharing methodology is based on proportional use of Poudre River water supplies. In addition, the IGA identifies the agreement between the City and Greeley to share the cost for a project manager to be employed by the Coalition for the Poudre River Watershed (CPRW) for the purpose of supporting implementation of EWP projects. The need for this position will depend upon the scope of work for 2021 - 2022. CITY FINANCIAL IMPACTS In October 2020, Council approved a two percent water rate increase one year earlier than previously planned, which provides approximately $600,000 to address post fire needs. (Attachment 3) In addition, there are Agenda Item 12 Item # 12 Page 4 $1,800,000 in unused funds from the Horsetooth Outlet Project, and operating revenues in the Water Fund that exceeded projected 2020 budget. In total, there are approximately $5,000,000 of Water Fund funds available for fire recovery needs. In addition to anticipated revenue and reserves proposed for application for post-2020 fire watershed recovery needs, the incremental $600,000 of Water Utility revenues referenced above will be accompanied by contribution on behalf of the General Fund of the 6% “payment in lieu of taxes and franchise” (PILOT) collected from water customers, pursuant to Art. XII, Sec. 6 of the City Charter and City Code §§ 26-118(c) and 26-714. This amounts to $36,000, the inclusion of which makes the total amount requested for appropriation in the proposed Ordinance $5,036,000. Staff proposes that this requested appropriation for 2021 be funded with these identified resources. Use of these funds would not require an additional rate increase at this time, nor would it impact the current timeline or funding for planned capital investments. It is anticipated, however, that additional appropriations and/or rate increases may be needed in future years. BOARD / COMMISSION RECOMMENDATION Staff met with the Water Board and the Council Finance Committee throughout this process. Specific details are as follows: Utilities Water Board At its February 18, 2021 meeting, the Water Board unanimously voted to recommend that Council adopt both the appropriation for wildfire response and recovery as well as the request for the City to enter into an IGA for cost-sharing of post-wildfire watershed recovery work with the City of Greeley, Larimer County, and other local water providers. (Attachment 4) Council Finance Committee At its February 22, 2021 meeting, the Council Finance Committee unanimously voted to approve sending forward for Council consideration an appropriation request for post-fire response and recovery and the request to enter into an IGA for cost-sharing post-wildfire watershed recovery work. (Attachment 5) PUBLIC OUTREACH A City Wildfire Response and Recovery team was convened the afternoon that the Cameron Peak Fire ignited, on August 13, 2020. Since that day, the team has been coordinating and meeting with our partners at the City of Greeley, Larimer County, Northern Water Conservancy District, the Coalition for a Poudre River Watershed, the Tri-Districts, and others. City staff are also participating members of several sub-groups associated with the Larimer Recovery Collaborative, an effort led by Larimer County Office of Emergency Management. This includes a regional Public Information Office (PIO) communications subgroup that is coordinating outreach efforts. In addition, the Collaborative is looking at all aspects of recovery, such as infrastructure, communications, water, debris management, public health, economic health, and individual needs, such as spiritual care and community advocacy. A draft Communications and Engagement Plan is being developed to communicate with internal and external stakeholders, key businesses, and the community. Communications and outreach efforts will focus on watershed/wildfire recovery, water restrictions and water quality. Several communications and outreach efforts are currently being planned, including internal and external websites and dashboards, a collaborative project with Coalition for the Poudre River Watershed that includes recovery time-lapse footage, social media, education programs with a forestry class at Front Range Community College, and more. Staff will provide quarterly updates to Council on activities and expenditures related to watershed recovery, water supply and quality, water shortage response planning, and water treatment operations for the remainder of 2021. Agenda Item 12 Item # 12 Page 5 ATTACHMENTS 1. Watershed Hazards Assessment and Treatments (PDF) 2. Intergovernmental Agreement (draft) (PDF) 3. Work Session, October 13, 2020 (PDF) 4. Water Board Minutes (draft) (PDF) 5. Council Finance Committee Minutes (draft) (PDF) -1- ORDINANCE NO. 046, 2021 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING SUPPLEMENTAL APPROPRIATIONS, APPROPRIATING PRIOR YEAR RESERVES, AND AUTHORIZING TRANSFER OF EXISTING APPROPRIATIONS FOR POST-FIRE WATERSHED RESTORATION TREATMENTS AND OPERATIONAL COSTS ASSOCIATED WITH TREATING FIRE-IMPACTED WATER SUPPLIES WHEREAS, during the 2020 wildfire season, nearly 400,000 acres of landscape burned in critical watersheds through which the Cache La Poudre River, the Colorado-Big Thompson (CB-T) system, and associated high mountain reservoirs supply water to Northern Colorado communities, including Fort Collins, Greeley, and Larimer County; and WHEREAS, following forest fires like the 2020 Cameron Peak and East Troublesome wildfires, flash flooding is more frequent, leading to increased ash deposits and sedimentation in rivers, debris flows, and overall degradation of water quality, requiring municipal water systems operators incur significant additional water treatment expenses for remediation measures; and WHEREAS, City Utilities staff has estimated $1,000,000 in unanticipated operating and capital costs for the City’s Water Treatment Facility to address the impacts of the 2020 wildfires, which total is anticipated to be adjusted as the impacts of the Cameron Peak and East Troublesome fires on the City’s water quality and water supply are revealed, priority work is identified, and projects are scheduled; and WHEREAS, after the 2020 wildfire season, regional stakeholders, including Fort Collins and Greeley, prepared an initial watershed assessment of post-fire conditions to identify priority areas for regional post-fire treatments and to explore options to reduce impacts on individual municipal water systems; and WHEREAS, this effort identified 18,000 acres of moderate to severely burned areas suitable for treatments (e.g., aerial wood shred mulching, straw erosion wattles, sediment catchment basins, and stream grade control structures), at an estimated cost of $19 - $38 million; and WHEREAS, based on the watershed assessment, Greeley and Larimer County engaged the Natural Resources Conservation Service (NRCS) and entered into agreements for federal financial assistance through the Emergency Watershed Protection (EWP) assistance program; and WHEREAS, an intergovernmental agreement negotiated by Fort Collins Utility staff, Greeley, and Larimer County to establish a cost-sharing arrangement to complete the post-fire treatments approved under the EWP assistance program (“Post-Fire Watershed Restoration IGA”), for adoption with second reading of this Ordinance; and WHEREAS, Utility staff has estimated, prior to EWP program reimbursements and including anticipated local match requirements, the City’s share of proposed post-fire watershed treatments and associated costs will be approximately $4,000,000, including $3.7 million to -2- address up to 7,500 high priority acres through aerial wood mulching; $265,000 for wattles, stream grade control, and sediment catchments; and $35,000 for project management support; and WHEREAS, Utilities staff has identified approximately $600,000 in unencumbered revenues in the Water Fund, based on water rates City Council approved under Ordinance No. 140, 2020 (November 17, 2020), along with $1,800,000 in unused funds in the Horsetooth Outlet Project, and operating revenues in the Water Fund that exceeded the projected 2020 budget, which sums are available to fund initial post-fire watershed restoration treatments and Water Utility wildfire-related operational costs; and. WHEREAS, Utilities staff accordingly has recommended Council approve supplemental appropriation of $1,000,000 for unanticipated operating and capital costs at the City’s Water Treatment Facility attributable to 2020 wildfires, including $36,000 to adjust the budgeted payment in lieu of taxes and franchise (PILOT) to reflect 6% of the increased operating revenues, and $4,000,000 for post-fire emergency watershed treatments and costs under the pending Post-Fire Watershed Restoration IGA; and WHEREAS, this appropriation benefits public health, safety and welfare of the citizens of Fort Collins and benefits Water Utility rate payers by proactively addressing impacts of recent wildfires on City water utility treatment facilities and operations, and leveraging regional and federal financial and in-kind resources to protect essential water basins and water quality, thereby curbing utility operating costs that may otherwise require sooner water service rate increases; and WHEREAS, Article V, Section 9 of the City Charter permits the City Council, upon recommendation of the City Manager, to make supplemental appropriations by ordinance at any time during the fiscal year, provided that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and WHEREAS, Article V, Section 9 of the City Charter further permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated; and WHEREAS, the City Manager has recommended the appropriation from anticipated revenues described herein and determined that this appropriation is available and previously unappropriated from the Water Fund and will not cause the total amount appropriated in the Water Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during any fiscal year, including amounts otherwise payable to the General Fund for payments in lieu of taxes and franchise (PILOT); and WHEREAS, the City Manager has recommended the appropriation from prior year reserves described herein and determined that this appropriation is available and previously unappropriated from the Water Fund and will not cause the total amount appropriated in the -3- Water Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during any fiscal year; and WHEREAS, Article V, Section 10 of the City Charter authorizes the City Council, upon recommendation by the City Manager, to transfer by ordinance any unexpended and unencumbered appropriated amount or portion thereof from one fund or capital project to another fund or capital project, provided that the purpose for which the transferred funds are to be expended remains unchanged; the purpose for which the funds were initially appropriated no longer exists; or the proposed transfer is from a fund or capital project in which the amount appropriated exceeds the amount needed to accomplish the purpose specified in the appropriation ordinance; and WHEREAS, the City Manager has recommended the transfer of $1,800,000 from the Horsetooth Outlet capital project to the Watershed Recovery project and determined that the proposed transfer is from a capital project account in which the amount appropriated exceeds the amount needed to accomplish the purpose specified in the appropriation ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That there is hereby appropriated for expenditure from anticipated revenues in the Water Fund the sum of FIVE HUNDRED SIXTY-FOUR THOUSAND DOLLARS ($564,000) for post-fire watershed restoration treatments and operational costs associated with treating fire-impacted water supplies. Section 3. That there is hereby appropriated for expenditure from anticipated revenues in the Water Fund the sum of THIRTY-SIX THOUSAND DOLLARS ($36,000) for payment in lieu of taxes and franchise (PILOT) to the City’s General Fund to be used for post- fire watershed restoration treatments and operational costs associated with treating fire-impacted water supplies. Section 4. That there is hereby appropriated for expenditure from prior year reserves in the Water Fund the sum of TWO MILLION SIX HUNDRED THIRTY-SIX THOUSAND DOLLARS ($2,636,000) for post-fire watershed restoration treatments and operational costs associated with treating fire-impacted water supplies. Section 5. That the unexpended and unencumbered appropriated amount of ONE MILLION EIGHT HUNDRED THOUSAND DOLLARS ($1,800,000) is hereby authorized for transfer from the Horsetooth Outlet capital project account to the Watershed Recovery project and appropriated therein. -4- Introduced, considered favorably on first reading, and ordered published this 16th day of March, A.D. 2021, and to be presented for final passage on the 20th day of April, A.D. 2021. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 20th day of April, A.D. 2021. __________________________________ Mayor ATTEST: _______________________________ City Clerk -1- RESOLUTION 2021-037 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO SIGN AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF GREELEY AND LARIMER COUNTY TO FACILITATE COST-SHARING PROCESSES FOR POST-FIRE WATERSHED RECOVERY ACTIVITIES WHEREAS, the City operates through the Water Utility Enterprise a municipal potable water system which relies in part on water obtained from the Cache La Poudre River and the Colorado-Big Thompson (CB-T) watershed treated at City facilities located near Horsetooth Reservoir; and WHEREAS, during the 2020 wildfire season, nearly 400,000 acres of landscape burned in critical watersheds through which the Cache La Poudre River, the CB-T system, and associated high mountain reservoirs supply water to Northern Colorado communities, including Fort Collins, Greeley, and Larimer County; and WHEREAS, following forest fires like the 2020 Cameron Peak and East Troublesome wildfires, flash flooding is more frequent, leading to increased ash deposits and sedimentation in rivers, debris flows, and overall degradation of water quality, requiring municipal water systems operators incur significant additional water treatment expenses for remediation measures; and WHEREAS, Utilities staff estimated $1,000,000 in unanticipated operating and capital costs for the City’s Water Treatment Facility to address the impacts of the 2020 wildfires, which total is anticipated to be adjusted as the impacts of the Cameron Peak and East Troublesome fires on the City’s water quality and water supply are revealed, priority work is identified, and projects are scheduled; and WHEREAS, after the 2020 wildfire season, regional stakeholders, including Fort Collins and Greeley, prepared an initial watershed assessment to identify priority areas for regional post- fire treatments and to explore options to reduce impacts on municipal water systems; and WHEREAS, based on the watershed assessment, Greeley and Larimer County engaged the Natural Resources Conservation Service and entered into agreements for federal financial assistance through the Emergency Watershed Protection (EWP) assistance program; and WHEREAS, to facilitate timely completion of the post-fire treatments approved under the EWP assistance program, Fort Collins Utility, Greeley, and Larimer County staff negotiated an intergovernmental agreement, a copy of which is attached hereto as Exhibit “A” and incorporated herein by reference, to establish a cost-sharing arrangement (the “IGA”); and WHEREAS, the proposed IGA is drafted to accommodate including in-kind and other contributions from additional regional water providers and partners for portions of the EWP assistance program work, though Fort Collins, Greeley, and Larimer County will remain managing entities for the overall IGA work scope; and -2- WHEREAS, on March 16, 2021, City Council approved Ordinance No. 046, 2021 on First Reading to appropriate $4,000,000 for post-fire emergency watershed treatments and costs under the proposed IGA; and WHEREAS, Utilities staff has recommended that the City execute this agreement to enable deployment of Fort Collins Utility, Greeley, and Larimer County resources, in furtherance of a timely and successful completion of the work approved under the EWP assistance program; and WHEREAS, Article II, Section 16 of the City of Fort Collins Charter empowers the City Council, by ordinance or resolution, to enter contracts with governmental bodies to furnish governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS Section 29-1-203 of the Colorado Revised Statutes provides that governments may cooperate or contract with one another to provide certain services or facilities when 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; and WHEREAS, Section 1-22 of the City Code provides that intergovernmental agreements and other cooperative arrangements between the City and other governmental entities are to be submitted to the City Council for review and approval, unless they fit within one of the exceptions that permit execution by the City Manager; and WHEREAS, the City Council has determined that the IGA is in the best interests of the City and its residents. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Manager is hereby authorized to execute the IGA substantially in the form attached hereto as Exhibit “A”, with such modifications and additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purposes of this Resolution. -3- Passed and adopted on at a regular meeting of the Council of the City of Fort Collins this 20th day of April, A.D. 2021. _________________________________ Mayor ATTEST: _______________________________ City Clerk Page 1 of 15 INTERGOVERNMENTAL AGREEMENT REGARDING REHABILITATION WORK FOR THE CAMERON PEAK FIRE THIS AGREEMENT dated ____________________, 2021, is entered into by and between the following Parties: the City of Fort Collins, Colorado, a Colorado municipal corporation (“Fort Collins”); the City of Greeley, a Colorado municipal corporation (“Greeley”); and Larimer County, Colorado (together, “Managing Entities”). RECITALS A. The 2020 Cameron Peak Fire (“Fire”) has burned over 200,000 acres in the watersheds of the Cache la Poudre (“Poudre”) River and Big Thompson River. B. The Fire has also burned large areas in and impacting private properties, and public infrastructure serving such properties, including roadways, bridges, culverts, and other public service facilities outside of the public right of ways. C. Greeley and the Water Supply and Storage Company immediately undertook measures to mitigate hazards and damages to drinking water supplies at the Chambers Reservoir. D. The Managing Entities each divert and treat, and/or take deliveries of water from the Poudre River watershed and the Colorado Big Thompson (“CBT”) Project, and/or maintain public infrastructure supporting private properties located in the basins affected by the Fire. E. Through the Emergency Watershed Protection Program, administered by the Natural Resources Conservation Service ("NRCS"), United States Department of Agriculture, Greeley and Larimer County separately received funding for post-fire mitigation and infrastructure protection efforts related to the Fire (“EWP funds”). F. In addition to EWP funds, various funds, grants, programs, and other monetary and other resources may be or become available to assist the Managing Entities to address and mitigate damages from the Fire in the Poudre River and CBT Project watersheds (“non-EWP funds”). G. Use of EWP funds may be restricted to pre-approved scopes of services and a local government “cost-share”, with EWP funds applied to a percentage of the project’s costs, and the entity(s) awarded the funds being responsible for the remaining percentage. Terms and scopes of services applicable to use of non-EWP funds will be set forth in a separate agreement(s). H. The Managing Entities desire to coordinate efforts to acquire the most funding possible and to efficiently and effectivity utilize EWP funds to address and mitigate damages from the Fire in the Poudre River and CBT Project watersheds. I. Greeley and Larimer County agree to be the main contacts and contracting parties for EWP funds. EXHIBIT A Page 2 of 15 J. All Parties agree to independently engage other federal and state agencies as practical, for the purposes of seeking and acquiring non-EWP funds, as defined below. As set forth herein, Greeley and Larimer County will coordinate with Fort Collins and other contributing parties to this Agreement to acquire and seek reimbursements under grant and program funding requirements. K. Fort Collins and other water users that become contributing parties to this Agreement will also contribute matching funds to the cost-share portion of certain projects, as may be required by the terms associated with EWP funds applied under this Agreement. L. The Managing Entities desire to work with the Coalition for the Poudre River Watershed (“CPRW”), a Colorado nonprofit corporation, to manage certain projects undertaken under this Agreement, as set forth in Paragraph . M. The Managing Entities also desire to include other impacted water users in these efforts, including water providers and local governmental entities that may desire to become Parties in the future. The pressing need for this Agreement, and the shifting nature of Fire impacts have made it difficult for these other water users and entities to complete their internal evaluations and processes regarding whether to become a Party. Consequently, this Agreement includes a process to add “Contributing Parties” to this Agreement. N. The Managing Entities desire to enter into an intergovernmental agreement to coordinate emergency stabilization and restoration services, e.g., hillslope mulching, debris catchment systems, vegetation matting, seeding, rock netting, on the targeted public and private lands burned by the Fire. O. The Managing Entities wish to record their mutual understanding in intergovernmental agreements. P. The Managing Entities enter this into agreement pursuant as permitted §29-1-203, C.R.S. Q. Pursuant to Art. II, § 16 of the Fort Collins City Charter, the Fort Collins City Council, may, by ordinance or resolution, enter into contracts with other governmental bodies to furnish governmental services and make charges for such services or enter into cooperative or joint activities with other governmental bodies. R. Pursuant to Section 02.07.040, Greeley Municipal Code, Greeley may enter into contracts with other governmental bodies to furnish governmental services and make charges for such services or enter into cooperative or joint activities with other governmental bodies, the entry into such contracts being subject to the approval of the Greeley City Council under certain circumstances. S. The authority for this Agreement is, without limitation, Section 18 of Article XIV of the Colorado Constitution; Section 6 of Article XX of the Colorado Constitution; Section 29-1-203, Page 3 of 15 C.R.S., and provisions of the Colorado Disaster Emergency Act, Section 24-33.5-701, et seq., C.R.S., as amended. T. It is in the best interest of the citizens of Fort Collins, Greeley, and Larimer County for the parties to enter into this intergovernmental agreement. NOW, THEREFORE, in consideration of the premises and the covenants and agreements hereinafter set forth, it is agreed by and between Fort Collins, Greeley, and Larimer County as follows: AGREEMENT 1. AUTHORITY. This Agreement has been duly adopted by the Parties' governing bodies and the undersigned representatives are authorized to execute this Agreement on behalf of each respective Party. 2. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as if fully restated in their entirety. 3. PARTIES TO THIS AGREEMENT. 3.1. Principals. For purposes of completing the work described in this Agreement, portions will be delivered within the scopes of the respective funding award contracts secured by Greeley and Larimer County, and each funding recipient will take the lead in preparing and submitting reimbursements for costs associated with such work, as follows: 1. Category 1 – watershed work. Greeley will take the lead for purposes of initiating access to EWP funds and establishing the initial scope of qualifying watershed work, including hillslope and stream channel stabilization, erosion control, water supply infrastructure protection, and water quality work. 2. Category 2 – property and infrastructure work. Larimer County will take the lead for purposes of initiating access to EWP funds and establishing the initial scope of qualifying services for addressing impacts to private residences, roads, bridges, culverts and other public facilities outside of the public right of ways. 3. The Managing Entities will share responsibilities for mutually beneficial portions of qualifying Category 1 and 2 services and coordinating with third party project management services for Category 1 work. 3.2. Addition of Parties. Any other water user or local agency in the Poudre River watershed or that takes delivery of CBT Project water may become a “Contributing Party” to this Agreement by completing the Schedule of Participants addendum to this Agreement in the form of Exhibit B to be signed by all Parties. 3.3. Withdrawal of Parties. Any Party may withdraw itself from this Agreement by providing written notice pursuant to Paragraph 12. The withdrawing Party shall continue to be responsible for any commitments or contributions made prior to withdrawal. Page 4 of 15 4. FUNDING. 4.1. EWP Technical Assistance Funds. The EWP Sponsors, Greeley and Larimer County, will initially pay costs associated with NCRS-approved Technical Assistance Work under this Agreement, initial estimates for which and the associated work scoped are set forth in Exhibit A, attached hereto ("TA Funds"). EWP Sponsors may also pursue additional TA Funds for work later approved by NRCS, the work scopes for which will be incorporated in Exhibit A as amendments. Costs associated with approved TA Funds Work are ultimately 100% reimbursable. 4.2. EWP Construction Funds. In 2020, NRCS also awarded Financial Assistance funds ("FA Funds") to Greeley and Larimer County, respectively, for aerial mulching and enhanced mitigation efforts. Initial FA Funds awards and the associated work scopes approved by NRCS are set forth in Exhibit A. 4.3. Local Matching Funds. Under the respective FA Funds notices of award (a/k/a EWP funds) the Parties are required to expend certain local matching funds, anticipated to be 20 percent of the EWP funds. The Parties anticipate total funding for the Work during the Term will increase from the initial amounted described in Exhibit A, as additional EWP funds become available, Contributing Parties join this Agreement, and project work orders are developed. 4.4. Other funding. The Parties may also pursue non-EWP funds and resources to complete projects associated with the Work, the costs for which the Parties will work in good faith to equitably share, based on a “percent of Poudre River water use” cost-share model, or as may be identified in separate agreements for such projects and as referenced in amendments to Exhibit A. 5. APPORTIONMENT OF COSTS AND DUTIES. 5.1. Project Cost Allocation. 1. Project costs will be allocated as follows for individual projects the Parties agree to pursue under this Agreement: • EWP funds will be used first to the maximum extent possible towards project costs, including submittal of reimbursement applications against the initial NRCS award amounts described in Paragraph 4; • Any remaining costs will be allocated among the Managing Entities that would benefit directly and indirectly from the project, according to criteria mutually agreed to by the participating parties at the time of project commencement (“Benefit Cost Allocation Methodology”). 2. For projects Greeley agrees to pursue directly with Contributing Parties who are also water service users, project costs will be allocated based on the Page 5 of 15 participating parties’ respective average annual percent municipal diversions from the Cache La Poudre river for the years 2015 to 2019 (“Water User Cost Allocation Methodology”). 5.2. Category 1 Project Management. 1. Greeley may advertise and request bid proposals ("Proposal") for post-fire aerial mulching services and other post-fire mitigation services for Category 1 Work, and Greeley and Fort Collins will select a general contractor based on the criteria set forth in the Proposal. 2. Upon selection of a general contractor to perform the designated Category 1 Work, Greeley shall execute a contract with the selected general contractor ("Cat 1 Contract") and will be identified as the owner therein for such projects, which may include work designed by or with a shared benefit for Fort Collins and/or Larimer County. 3. As specified in the terms of the Cat 1 Contract, the selected general contractor will first invoice Greeley directly, up to and not to exceed any amount to which Greeley has agreed pursuant to an executed NRCS notice of award, for the designated Category 1 Work. After receiving EWP reimbursements, Greeley will divide non-reimbursable Category 1 Work project costs among the project partners, including Fort Collins and benefited Contributing Parties, pursuant to either the Benefit or Water User Cost Allocation Methodology as appropriate. 5.3. Category 2 Project Management. 1. Larimer County may advertise and request bid proposals ("Proposal") for post- fire aerial mulching services and other post-fire mitigation services for Category 2 Work and will select a general contractor based on the criteria set forth in the Proposal. 2. Upon the selection of a general contractor to perform the designated Category 2 Work, Larimer County shall execute a contract with the selected general contractor ("Cat 2 Contract") and will be identified as owner therein for such projects, which may include work designed by or with a shared benefit for county partners. 6. PROJECTS. The projects (“Work”) performed under this Agreement and subject to the EWP fund reimbursement conditions shall fall within the objectives outlined in the scope of services and contract between the local government entity and NRCS, as described in Exhibit A, attached hereto, and incorporated by this reference. Reimbursement obligations for such Work shall be subject to cost distributions and conditions set forth in the respective funding contract. Any (additional) Work requested by a Party that NRCS may subsequently approve for reimbursement with EWP funds will be set forth in an amendment to Exhibit A. Page 6 of 15 7. PROJECT PLANNING. 7.1. Decision Making. In making decisions on which projects fall under Category 1 or Category 2 to pursue and the allocation of project costs, the Parties shall operate by consensus. To this end, the Parties shall make a good faith effort to reach consensus, propose alternative solutions, and otherwise work to resolve any issues that prevent consensus. Any decisions involving the use of a particular Parties’ lands or structures may only be made with the consent of that Party in its sole discretion. 7.2. Project Identification and Prioritization. The Parties will identify potential projects on which to use the EWP funds. The Parties’ identification of potential projects and the order in which they are taken on and completed will be guided by the following considerations: • The need and expected benefit of the project; • The entities that would benefit directly and indirectly from the project; • The cost of the project, including whether EWP funds can be applied towards the project’s costs; • Accessibility of the project location; and • Administrative, legal, and/or regulatory steps associated with the project, including receiving approval for the project to be eligible for funds, such as necessary permits; and 7.3. Project Selection. For projects the Parties agree to pursue under this Agreement, Greeley and Larimer County will provide a written summary, including: a description of the project work; a timeline; and the project cost allocation (“Project Summary”), which may be initially prepared by a third-party contractor. A scope of work provided by the contractor hired to undertake such project may be used as the Project Summary, if it contains the information described in this paragraph. • Category 1 Projects: Greeley will circulate a draft Project Summary to the Contributing Parties for review and comment. Greeley and the Contributing Parties must mutually approve the Project Summary in writing prior to project commencement. After the Project Summary is approved, Work may commence, and as projects under this Agreement are completed, Greeley will invoice the Contributing Parties for project costs not reimbursed by EWP funds, according to the Project Summary. Greeley will prepare an annual work summary for projects completed under this Agreement and submit the summary to the Parties by December 31. The annual summary will exclude any projects that Greeley or Larimer County take on independently or without involvement of other Parties. • Category 2 Projects: Larimer County will circulate a draft Project Summary to the Contributing Parties for review and comment. Larimer County and the Contributing Parties must mutually approve the Project Summary in writing prior to project commencement. After the Project Summary is approved, Work may commence, and as projects under this Agreement are completed, Larimer County Page 7 of 15 will invoice the Contributing Parties for project costs not reimbursed by EWP funds, according to the Project Summary. Larimer County will prepare an annual work summary for projects completed under this Agreement and submit the summary to the Parties by December 31. The annual summary will exclude any projects that Greeley or Larimer County take on independently or without involvement of other Parties. 8. CPRW PROJECT MANAGEMENT. Greeley and Fort Collins may secure project management (PM) services through the Coalition for the Poudre River Watershed (“CPRW”) to coordinate post-fire project implementation and ensure the Work is completed. The terms of CPRW’s engagement will be documented in a separate agreement, under which Fort Collins will reimburse Greeley for a portion of the PM costs. Greeley and Fort Collins may choose to maintain and oversee CPRW’s delivery of PM services through resources employed directly by CPRW. The initial focus of the PM service will be EWP fund Category 1 projects, with accommodation for other priorities identified in this Agreement as resources and funding conditions may permit. 9. OTHER FIRE-RELATED EFFORTS. Nothing in this Agreement shall impact the ability of any Party to perform other activities to address and mitigate damages from the Fire in the Poudre River and CBT Project watersheds, including efforts with affiliated local agencies affected by the Fire that may seek to coordinate with Work performed under this Agreement, e.g., City of Fort Collins Natural Areas. 10. FISCAL CONTINGENCY. Notwithstanding any other provisions of this Agreement to the contrary, the obligations of the governmental Parties in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, with each governmental Party having the sole discretion to determine whether the subject funds are sufficient and intended for use under this Agreement, and the failure of any governmental Party to appropriate such funds shall be grounds for the Party to withdraw from this Agreement with written notice pursuant to Paragraph 12. 11. NO THIRD-PARTY BENEFICIARIES. This Agreement is entered into among the Parties for the purposes set forth herein. It is the intent of the Parties that they are the only beneficiaries of this Agreement and the Parties are only benefitted to the extent provided under the express terms and conditions of this Agreement. 12. NOTICES. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when personally delivered, or after the lapse of five business days following mailing by certified mail-return receipt requested, postage prepaid, addressed as follows: To Fort Collins: City Manager City Hall West 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 With copy to: Fort Collins City Attorney 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 Page 8 of 15 epotyondy@fcgov.com and: Fort Collins Utilities Attn: Water Resources Manager 700 Wood Street Fort Collins, Colorado 80521 ddustin@fcgov.com To Greeley: Greeley Water and Sewer Department Attn: Director of Water and Sewer 1001 11th Avenue, Second Floor Greeley, Colorado 80631 sean.chambers@greeleygov.com; jennifer.petrzelka@greeleygov.com With a copy to: Greeley City Attorney’s Office Attn: Environmental and Water Resources 1100 10th Street, Suite 401 Greeley, Colorado 80631 daniel.biwer@greeleygov.com To Larimer County: County Manager 200 W. Oak Street Fort Collins, CO 80522 With copy to: Office of Emergency Management Attn: Director OEM 200 W. Oak Street Fort Collins, Colorado 80522 13. NO WAIVER OF IMMUNITY. NO WAIVER OF IMMUNITY. Nothing herein shall constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act (“CGIA”), C.R.S. §24-10-101, et seq., or the Federal Tort Claims Act (“FTCA”) 28 U.S.C. 2671 et seq., as applicable, as now or hereafter amended nor shall any portion of this Agreement be deemed to have created a duty of care which did not previously exist with respect to any person not a party to this Agreement. Liability for claims for injuries to persons or property arising from the negligence of the Parties, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the CGIA or the FTCA as applicable, as now or hereafter amended. 14. NON-LIABILITY AND INSURANCE-GENERAL. This Agreement shall not be construed to create a duty as a matter of law, contract, or otherwise for any Party to assume any liability for injury, property damage, or any other loss or damage that may occur by any action, or non-action taken, or service provided, to the public or any person, as a result of this Agreement. Each Party shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property as a result of any act or omission of a Party, or its employees, agents, or assignees pursuant to the terms of this Agreement, Each Party retains all obligations and Page 9 of 15 protections afforded by the provisions of the Colorado Governmental Immunity Act, C.R.S. 24 - 10-101 et. seq., as the same may be amended from time to time. 15. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, except for conflicts of laws provisions. The forum for any dispute regarding this Agreement shall be in the Weld County District Court, State of Colorado. 16. CONSTRUCTION. This Agreement shall be construed according to its fair meaning as it was prepared by the Parties. Headings in this Agreement are for convenience and reference only and shall in no way define, limit, or prescribe the scope or intent of any provision of this Agreement. 17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties regarding the matters addressed herein. This Agreement binds and benefits the Parties and their respective successors. Covenants or representations not contained in this Agreement regarding the matters addressed herein shall not bind the Parties. 18. AMENDMENTS. Any amendments or modifications to this Agreement must be in writing and executed by all parties to be valid and binding. 19. REPRESENTATIONS. Each Party represents to the other Parties that it has the power and authority to enter into this Agreement and the individuals signing below on behalf of that Party have the authority to execute this Agreement on its behalf and legally bind that Party. 20. ASSIGNMENT. No Party may assign any rights or delegate any duties under this Agreement without the written consent of all other Parties. 21. SEVERABILITY. If any provision of this Agreement shall be found illegal, invalid, unenforceable, or impossible to perform by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] Page 10 of 15 CITY OF FORT COLLINS, COLORADO, a Colorado municipal corporation By: __________________________________ Date: Darin Atteberry, City Manager ATTEST: _______________________________ City Clerk’s Office Printed Name: ___________________ Title: __________________________ APPROVED AS TO FORM: ________________________________ Printed Name: ___________________ Assistant City Attorney Page 11 of 15 CITY OF GREELEY, COLORADO, a home rule municipal corporation By: __________________________________ Date: Roy Otto, City Manager AS TO LEGAL FORM: By: ________________________________________ City Attorney AS TO AVAILABILITY OF FUNDS: By: ________________________________________ Director of Finance Page 12 of 15 LARIMER COUNTY, COLORADO, a county subdivision of the State of Colorado By: __________________________________ Date: Chairman of Board of County Commissioner AS TO LEGAL FORM: By: ________________________________________ County Attorney AS TO AVAILABILITY OF FUNDS: By: ________________________________________ Director of Finance Exhibit A Scope of Coordinated Services Greeley and Larimer County intend to use EWP funds are for the implementation of recovery measures, which left undone, pose a threat to life and or property. Example recovery projects may include, but are not limited to, erosion and sedimentation prevention, debris removal, and structure protection from the threat of future flooding due to the Cameron Peak Fire. Examples of Project Types: I. Direct Remediation a. Category 1 services. • Mulching of hillslopes • Hillslope stabilizations such as waddles, tree welling, etc. • Sedimentation basins • Erosion Control Measures • Stream Channel Stabilization • Seeding/ Revegetation / Reforestation b. Category 2 services. ▪ Repair or upgrades to culverts, bridges, and roads ▪ Debris removal ▪ Flooding prevention structures ▪ Hazard Tree Removal ▪ Hillslope protection / stabilization ▪ Warning Signage ▪ Stream channel stabilization ▪ Seeding/ Revegetation / Reforestation II. Project Management As needed, Greeley and Fort Collins will jointly select and coordinate through Greeley a third-party project manager (“PM Work”) to oversee organization of Projects under this Agreement and related work, including Category 2 services for which Larimer County may be involved. The Managing Entities will equitably apportion the cost of PM Work, based on the respective benefits realized by the Parties, to be paid from individual resources without seeking NRCS reimbursement. Exhibit B Participating Parties The following local governmental entities are the principal parties to this Agreement, “Managing Entities”: - CITY OF FORT COLLINS, COLORADO a home-rule municipality (“Fort Collins”) with principal offices at 300 LaPorte Avenue, Fort Collins, Colorado 80521 - CITY OF GREELEY, COLORADO, a home-rule municipality (“Greeley”) with principal offices of its Water and Sewer Department at 1001 11th Avenue, Second Floor, Greeley, Colorado 80631 - LARIMER COUNTY, COLORADO, a county subdivision of the State of Colorado (“Larimer County”) with principal offices at […], Fort Collins, Colorado […] The following entities are Contributing Parties to this Agreement, whose obligations and contributions to the Work described in this Agreement may be different than those of the Managing Entities, as set forth in addenda to this Exhibit B: - ____________________________________________, with principal offices at […] (Organization Name) - ____________________________________________, with principal offices at […] (Organization Name) (Form of Addendum to Add a Party) CONTRIBUTING PARTY ADDENDUM TO AGREEMENT REGARDING REHABILITATION WORK FOR THE CAMERON PEAK FIRE This Addendum, dated ____________________, 2020, is entered into by and between the Parties to the Agreement Regarding Rehabilitation Work for the Cameron Peak Fire (“Agreement”) and , a (“New Party”). 1. The New Party has reviewed the Agreement as desires to become a “Contributing Party” thereto. The Parties to the Agreement agree to permit the New Party to become a Contributing Party to the Agreement for purposes of the following □ Category 1; □ Category 2 services: […] 2. The New/Contributing Party represents to the other Parties that it has the power and authority to enter into this Agreement and the individuals signing below on behalf of the New/Contributing Party have the authority to execute this Agreement on its behalf and legally bind the New/Contributing Party. 3. For purposes of Paragraph 12 of the Agreement, the contact information of the New/Contributing Party is: To : , a By: __________________________________ Date: [Insert signature pages of other Parties]