HomeMy WebLinkAboutCOUNCIL - COMPLETE AGENDA - 12/22/2020 - ADJOURNED MEETINGCity of Fort Collins Page 1
Wade Troxell, Mayor Remote Meeting
Kristin Stephens, District 4, Mayor Pro Tem City Hall West
Susan Gutowsky, District 1 300 LaPorte Avenue
Julie Pignataro, District 2 Fort Collins, Colorado
Ken Summers, District 3
Ross Cunniff, District 5 Cablecast on FCTV Channel 14
Emily Gorgol, District 6 and Channel 881 on the Comcast cable system
Carrie Daggett Darin Atteberry Delynn Coldiron
City Attorney City Manager City Clerk
Adjourned Meeting
December 22, 2020
AMENDED 12/21/20
PUBLIC PARTICIPATION OPTIONS
Live via the Zoom online meeting,
Live via the telephone,
By submitting emails to Council at CityLeaders@fcgov.com.
All options will be available for those wishing to provide general public comment, as well as public comment
during individual discussion items.
PUBLIC PARTICIPATION (ONLINE VIA ZOOM):
Individuals who wish to address Council via remote public participation can do so through Zoom
at https://zoom.us/j/98241416497. (The link and instructions are also posted
at www.fcgov.com/councilcomments.) Individuals participating in the Zoom session should watch the
meeting through that site, and not via FCTV, due to the streaming delay and possible audio interference.
The Zoom meeting will be available beginning at 5:15 p.m. on the day of the meeting. Participants wanting
to ensure their equipment setup is working should join prior to 6:00 p.m. For public comments, the Mayor
will ask participants to click the “Raise Hand” button to indicate you would like to speak at that time. Staff
will moderate the Zoom session to ensure all participants have an opportunity to address Council.
In order to participate, you must:
Have an internet-enabled smartphone, laptop or computer. Using earphones with a microphone will
greatly improve your audio experience.
Join the Zoom meeting using the link on the front page of the agenda or on the City’s home webpage
at www.fcgov.com.
If you use the City’s home page, simply click on the “Participate remotely in Council Meeting” link shown
near the top of the page.
City of Fort Collins Page 2
PUBLIC PARTICIPATION (VIA PHONE)
Dial the public participation phone number, 1-346-248-7799, and then enter the Meeting ID 982 4141
6497 followed by the pound sign (#).
The meeting will be available beginning at 5:15 p.m. Please call in to the meeting prior to 6:00 p.m., if
possible. For public comments, the Mayor will ask participants to indicate if you would like to speak at
that time – phone participants will need to press *9 to do this. Staff will be moderating the Zoom
session to ensure all participants have an opportunity to address Council.
When participating online or by phone, DO NOT Watch/stream FCTV at the same time due to streaming
delay and possible audio interference.
PUBLIC PARTICIPATION (VIA EMAIL)
Individuals not comfortable or able to access the Zoom platform or participate by phone are encouraged to
participate by emailing general public comments to CityLeaders@fcgov.com. If you have specific
comments on any of the discussion items scheduled, please make that clear in the subject line of the email
and send prior to the meeting Tuesday evening.
WATCH THE MEETING
Anyone can view the Council meeting live on Channels 14 and 881 or online at www.fcgov.com/fctv.
Note: Only individuals who wish to address Council should use the Zoom link or call in by phone.
Anyone who wants to watch the meeting, but not address Council, should view the FCTV livestream.
Documents to Share: If residents wish to speak to a document or presentation, the City Clerk needs to
be emailed those materials by 4 p.m. the day of the meeting.
Persons wishing to display presentation materials using the City’s display equipment under the Citizen
Participation portion of a meeting or during discussion of any Council item must provide any such materials
to the City Clerk in a form or format readily usable on the City’s display technology no later than two (2)
hours prior to the beginning of the meeting at which the materials are to be presented.
NOTE: All presentation materials for appeals, addition of permitted use applications or protests related to
election matters must be provided to the City Clerk no later than noon on the day of the meeting at which
the item will be considered. See Council Rules of Conduct in Meetings for details.
Upon request, the City of Fort Collins will provide language access services for individuals who have limited
English proficiency, or auxiliary aids and services for individuals with disabilities, to access City services,
programs and activities. Contact 221-6515 (V/TDD: Dial 711 for Relay Colorado) for assistance. Please
provide 48 hours advance notice when possible.
A solicitud, la Ciudad de Fort Collins proporcionará servicios de acceso a idiomas para personas que no
dominan el idioma inglés, o ayudas y servicios auxiliares para personas con discapacidad, para que
puedan acceder a los servicios, programas y actividades de la Ciudad. Para asistencia, llame al 221-6515
(V/TDD: Marque 711 para Relay Colorado). Por favor proporcione 48 horas de aviso previo cuando sea
posible.
City of Fort Collins Page 3
CALL MEETING TO ORDER
ROLL CALL
1. District 4 Council Vacancy. (staff: Delynn Coldiron; 7 minute presentation; 30 minute discussion)
THIS ITEM HAS BEEN AMENDED.
The purpose of this item is to provide opportunity for the public to offer comments on the applicants
for the District 4 Council vacancy, to give Councilmembers an opportunity to identify finalists who
will move forward to the interview process, and to consider changes to the established process to
fill the vacancy, if desired.
Applications for the District 4 Vacancy were received from:
1. Jessica Dyrdahl
2. Erin Hottenstein
3. Philip Jensen
4. Veronica Olivas
5. Shirley Peel
6. Melanie Potyondy
7. Sidna Rachid
8. William Wright
2. Consideration of Resolution 2020-119 Approving an Intergovernmental Agreement with the City
of Loveland and Larimer County Related to Corrective Measures at the Larimer County
Landfill.(staff: Darin Atteberry; 10 minute presentation; 30 minute discussion)
The purpose of this item is to consider adoption of a Resolution approving an Intergovernmental
Agreement among the three parties who share ownership of the Larimer County Landfill site (City
of Fort Collins, City of Loveland and Larimer County). The Intergovernmental Agreement identifies
the responsibilities and financial commitments of the three parties pertaining to the remediation of
environmental contamination at and from the Larimer County Landfill.
OTHER BUSINESS
A. Consideration of a Motion to enter into an Executive Session to discuss legal issues related to the
Hughes Property Citizen Initiative Declaratory Judgment Action
“I move that the City Council go into executive session for the purpose of meeting with the City’s
attorneys and staff to discuss specific legal questions related to litigation regarding the Hughes
Property Citizen Initiative Declaratory Judgment Action as permitted under”
City Charter Article Roman Numeral Two, Section 11(2),
City Code Section 2-31(a)(2) and
Colorado Revised Statutes Section 24-6-402(4)(b).
ADJOURNMENT
Agenda Item 1
Item # 1 Page 1
AGENDA ITEM SUMMARY December 22, 2020
City Council
STAFF
Delynn Coldiron, City Clerk
Carrie Daggett, City Attorney
SUBJECT
District 4 Council Vacancy.
EXECUTIVE SUMMARY
The purpose of this item is to provide opportunity for the public to offer comments on the applicants for the
District 4 Council vacancy, to give Councilmembers an opportunity to identify finalists who will move forward to
the interview process, and to consider changes to the established process to fill the vacan cy, if desired.
Applications for the District 4 Vacancy were received from:
1. Jessica Dyrdahl
2. Erin Hottenstein
3. Philip Jensen
4. Veronica Olivas
5. Shirley Peel
6. Melanie Potyondy
7. Sidna Rachid
8. William Wright
BACKGROUND / DISCUSSION
The Council discussed the process for filling this vacancy at the November 24, 2020 Work Session. The
following describes the agreed upon process and timeline as documented in Resolution 2020 -113, adopted at
the December 1, 2020 Regular Meeting:
December 2, 2020 - Begin advertising for the vacancy. This will include:
• Launch of a new webpage specific to the vacancy with a spotlight on the City’s home page to highlight that
applications are being accepted.
• Press releases to both the Coloradoan and the Collegian.
• Advertisements in the Coloradoan over the next two weeks.
• Social media outreach.
• Nextdoor post to District 4 residents.
Applications will be available on the website (fillable pdf) and at the City Clerk’s office at 300 LaPorte Avenue.
The application packet will include:
• General information about the vacancy and related requirements, process and qualifications.
• Application form.
• Financial Disclosure Statement.
• Candidate Affidavit (must be notarized).
• District 4 map.
• Council Vacancy Timeline.
December 15, 2020 - Adjourn meeting to December 22, 2020.
December 18, 2020 - Deadline to submit application forms to the City Clerk’s office (5:00 p.m.).
Agenda Item 1
Item # 1 Page 2
• Applications can be submitted by email at cityclerk@fcgov.com, hand -delivered to the City Clerk’s office at
300 LaPorte Avenue, or mailed to the City Clerk’s Office at PO Box 580, Fort Collins, Colorado 80522, and
must be received by the City Clerk by 5:00 p.m. on Friday, December 18, 2020, in order to be considered.
• Application submittals will be provided to Council as soon as possible after the December 18 deadline, but
no later than Monday, December 21.
• All application materials will be posted for public review in advance of the expected adjourned Council
meeting on December 22, 2020, and then will be available to the public and City Council for subsequent
steps in the selection process.
December 22, 2020 - Expected adjourned Council meeting.
• Provide opportunity for public comment related to the applications that have been received.
• Provide Council with an opportunity to vote to determine the pool of applicants to be interviewed, if desired,
based on the number of applications received.
• Provide Council with an opportunity to make any adjustments, if needed, to the process being used to fill
the District 4 vacancy.
December 31, 2020 - Effective date of Mayor Pro Tem Stephens’ resignation.
January 5, 2021 - Adjourn to January 12, 2020 (may need to call special meeting instead).
January 6, 2021 - Special Meeting for applicant interviews, scheduled for 6:00 p.m. Interview specifics:
• The Special Meeting will be conducted using remote (Zoom) technology.
• Each applicant will have a time-limited opportunity to provide an opening statement in random order
determined by the City Clerk. Applicants will not be sequestered or required to leave the room during
questioning of other applicants.
• Questioning of all applicants will proceed, beginning with the Mayor asking a question for each applicant to
answer in turn, and then continuing with each successive Councilmember asking a question for each of the
applicants to answer. There will be opportunity for follow up or clarifying questions from Councilmembers
after all applicants have responded to each question. The order of responding to each question will rotate
among the applicants.
• After the completion of Councilmember questions, each applicant will have a time -limited opportunity to
provide a closing statement.
• If a large number of applicants is interviewed, Council may choose to vote to narrow the field to a nu mber
of finalists. Otherwise, Council will make no decisions at its Special Meeting regarding the applicants
moving forward to the next step of the process.
January 12, 2021 - Adjourned meeting (may change to special meeting).
Selection process and Resolution making appointment:
• Members of the public will be invited to provide comments to Council at any time at
CityLeaders@fcgov.com or in care of the City Clerk at the address above, regarding the applicants and the
Council’s selection of an appointee.
• Council will take action to select an appointee. The public will have an opportunity to comment at the
beginning of the discussion, as on all discussion items, with the time limit for comment set by the Mayor
based on the number of speakers.
• After completion of public comment, Council will discuss the applicants.
• The City Clerk will provide a resolution with a blank for the name of the appointee as part of the Council’s
agenda materials. After discussing the applicants, Council will then, by motion, p ropose appointees until
the resolution with a named appointee receives a majority vote.
January 19, 2021 - Regular Council Meeting.
Agenda Item 1
Item # 1 Page 3
• Oath of office will be administered to the new appointee.
ATTACHMENTS
1. Jessica Dyrdahl (PDF)
2. Erin Hottenstein (PDF)
3. Philip Jensen (PDF)
4. Veronica Olivas (PDF)
5. Shirley Peel (PDF)
6. Melanie Potyondy (PDF)
7. Sidna Rachid (PDF)
8. William Wright (PDF)
9. Powerpoint Presentation (PDF)
ATTACHMENT 1
ATTACHMENT 2
Erin Hottenstein
970-430-5370 | electhottenstein@gmail.com | Fort Collins, CO
City Council District 4 Candidate
Board governance, including oversight, budgeting, bylaws changes, hiring, visioning, planning, and
stakeholder engagement| Community building | Leadership development in underrepresented
populations | Self-directed | Meets deadlines | Extensive training and classroom facilitation | Former
government reporter
Experience
Founder | Colorado 50-50 | February 2017 - Present
Promote women’s leadership. Inspire women of all races, ethnicities, classes, abilities, and
backgrounds to apply for boards and run for office. Created, scheduled, promoted, enrolled, and
facilitated 15 programs in 8 locations for nearly 600 people over the last 3+ years.
Associate Trainer & Vice President of Operations | Public Speaking for the Professional
| February 2011 - Present
Teach presentation skills, personality styles, goal achievement, and self-esteem courses for clients in
both corporate and open enrollment settings. Coach individual clients. Schedule seminars and prepare
all materials. Oversee all business operations.
Leader | Change Leadership Inspired by Leadership Fort Collins | September 2020 - May 2021
Selected to participate in Fort Collins Chamber of Commerce program, which this year is focusing on
leadership during a time of change. Engage in dialogue about leading organizations to excellence,
diversity, equity, and inclusion, and solving problems at their root cause. Interact with area CEOs.
Associate Member | Larimer County Workforce Development Board | March 2020 - Present
Participate in conversations about training employees and economic development in Northern
Colorado. Attending meetings since spring 2019.
Water Literate Leaders | CSU Water Center | September 2019 - June 2020
Accepted into a competitive leadership program with a focus on complex Northern Colorado water
issues. Actively learned about all aspects, including agriculture, urban, environmental, recreation, and
business, via presentations, dialogue, and field trips. Interacted and discussed issues with regional water
leaders for an inside view of our water future and participated in visioning activities.
Election Judge | Larimer County | October 2018 - November 2020
Compass Advisory Committee Member | Health District of Northern Larimer County |
September 2016 - October 2018
Gave feedback and suggestions on articles for the Compass newsletter. Served as a resource for
expanding its reach and effectiveness.
Board of Trustees President | Foothills Unitarian Church | President-Elect July 2015 - July 2016,
President July 2016 - July 2018
Played a key role in developing a powerful new mission statement. Led a governance change by
evaluating our previous system, engaging members in a 2-year dialogue, and ultimately voting to
change our bylaws. Oversaw hiring of new ministers and staff, as well as budget, planning, and
program implementation.
Experience in City, County, State, and Federal Government Reporting
Gained insights and knowledge of all levels of government in the following positions. Covered 3
different city governments, 2 counties, 3 school districts, along with state and federal.
Healthcare and Technology Reporter | BizWest (formerly Northern Colorado Business Report)
Examined changes to healthcare industry. Highlighted trends involving local companies. Showcased
small businesses in profile features. Investigated multi-state Ponzi scheme.
City and County Reporter | Wyoming Tribune Eagle | Cheyenne, WY
Investigated issues and found new stories by working with people at all levels. Tracked complex
government actions and explained effects on the community. Developed new contacts and evaluated
their credibility. Related national trends to local level. Wrote daily stories on crime, lawsuits,
government, zoning, health, environment, business, and other topics.
●Conducted extensive interviews of human service providers and people with low-income to
illustrate the realities of poverty for five-part series.
Morning News Anchor, Producer, Reporter | CBS News Channel 5-KGWN | Cheyenne, WY
Produced newscasts. Brought in statewide candidates for interviews and debate series. Delivered live
daily reports during legislative session. Moderated live 1.5-hour Governor’s Small Business Telecast.
News Director | KUGR and KYCS Radio | Green River, WY
Researched, wrote, edited, produced, and broadcast news 12 times daily. Developed long-term
relationships with police, politicians, teachers, lawyers, and others that led to story contacts and
interviews. Tackled complicated stories requiring investigation, planning, and discretion.
Community Activities/Volunteer Experience
Volunteer | 15+ campaigns including city, county, state, federal, petition initiatives, and ballot
measures.
Vice-President of Marketing | Association for Talent Development, Northern Rockies Chapter
Education
Change Management Certificate | Association for Talent Development | 2020
Coaching Certificate | Association for Talent Development | 2017
Training Certificate | Association for Talent Development | 2017
Bachelor's Degree, Sociology and Women's Studies, Goucher College, Baltimore, MD
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5
ATTACHMENT 6
ATTACHMENT 7
ATTACHMENT 8
December 22, 2020District 4 Vacancy Delynn Coldiron, City ClerkATTACHMENT 9
District 4 VacancyDecember 2, 2020 – Advertising began• Website and Spotlight on City’s Homepage• Press Releases/Advertisements• Social Media and NextdoorDecember 18, 2020 – Deadline to submit applications• Received 8 applications• Application, Financial Disclosure Statement, Affidavit• Application ReviewDecember 21, 2020 – Press Release regarding public feedback opportunity.2ATTACHMENT 9
District 4 VacancyFeedback form• City Council Page• City Clerk PageLink: https://www.fcgov.com/council/council-vacancy3ATTACHMENT 9
District 4 VacancyQualifications:• United States Citizen• At least 21 years of age• Resident of District 4• Registered voter for at least one year• No felony convictions4ATTACHMENT 9
District 4 VacancyTonight’s Focus:• Opportunity for public comment on applicants.• Opportunity for applicants to address Council, if desired.• Opportunity for Council to identify finalists, if desired.• Opportunity for Council to discuss January 6 interview process.• Opportunity for Council to make changes to the process, if desired.5ATTACHMENT 9
District 4 VacancyNext Steps:• January 5 – Regular Council Meeting – Public Comment.• January 6 – Special Meeting - Interviews.• January 12 – Adjourned Meeting - Selection.• January 19 – Regular Meeting - Oath.6ATTACHMENT 9
District 4 VacancyApplicants:• Jessical Dyrdahl• Erin Hottenstein• Philip Jensen• Veronica Olivas• Shirley Peel• Melanie Potyondy• Sidna Rachid• William Wright7ATTACHMENT 9
Agenda Item
Item # Page 1
AGENDA ITEM SUMMARY December 22, 2020
City Council
STAFF
Darin Atteberry, City Manager
SUBJECT
Resolution 2020-119 Authorizing the Execution of an Intergovernmental Agreement Among Larimer County,
the City of Fort Collins, and the City of Loveland Related to Corrective Measures at the Larimer County
Landfill.
EXECUTIVE SUMMARY
The purpose of this item is to consider adoption of a Resolution approving an Intergovernmental Agreement
among the three parties who share ownership of the Larimer County Landfill site (City of Fort Collins, City of
Loveland and Larimer County). The Intergovernmental Agreement identifies the responsibilities and financial
commitments of the three parties pertaining to the remediation of environmental contam ination at and from the
Larimer County Landfill.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Site Background
The Landfill, at 5887 S. Taft Hill Rd, was operated by Fort Collins from 1963 to January 1, 197 5, and has since
been operated by Larimer County. The site of the Landfill is jointly owned by Fort Collins (50%), Larimer
County (25%), and Loveland (25%).
The Larimer County Landfill is nearing capacity and is expected to close in 2024.
Intergovernmental Agreement
Fort Collins, Loveland and Larimer County have been collaborating since 2018 to assess and propose
corrective measures for environmental contamination of groundwater detected at the Landfill and extending to
the City’s adjacent Fromme Prairie Natural Area, in cooperation with the Colorado Department of Public Health
and Environment (CDPHE).
This Intergovernmental Agreement formalizes the roles, responsibilities and financial commitments of Fort
Collins, Larimer County, and Loveland with respect to planning and carrying out corrective measures to
address such environmental contamination.
The Agreement provided is complete in substance and is in close to final form, subject only to final editing and
formatting.
Summary of IGA for Corrective Measures at the Larimer County Landfill:
1. The costs of “remediation” for the required environmental contamination, including that covered by the
Agenda Item
Item # Page 2
CDPHE orders and other regulatory orders, would be shared as follows:
a. The County would pay the first $3 million.
b. Additional amounts would be divided as follows:
i. County – 60%
ii. City of Fort Collins – 30%
iii. City of Loveland – 10%
c. Remediation costs would include all costs (including consultant costs) to monitor, investigate,
assess, plan, design and implement the remedy to address the contamination.
d. Fort Collins and Loveland would reimburse the County their shares within 45 days of receipt of
a certified statement of costs after an opportunity to review the annual statement of work and
invoice.
e. The Parties share on the same basis the responsibility for financial assurances for the
remediation work if they are required by CDPHE, but Fort Collins retains flexibility in how to
post that financial assurance.
2. The County would agree to pay “closure and post closure” costs based on the closure plans the
County has most recently submitted to CDPHE.
3. The County would agree to pay “transaction costs” to include preparation of documents by consultants
and attorneys:
a. for closure and post-closure matters;
b. to carry out administrative or judicial challenges to regulatory orders unless Fort Collins agrees
to participate in such challenges, in which case costs would be shared; and
c. to pay any fines or penalties against any Party pertaining to the Landfill, unless imposed
despite the County’s diligent efforts to comply.
4. The County will make reasonable efforts to get the cities removed from the CDPHE Orders.
5. The County will be responsible for carrying out closure, post closure and remediation and will
communicate independently with CDPHE.
6. The County will:
a. use “reasonable efforts” to keep Cities informed of significant events and communications
b. meet regularly with the cities (every other month for two years, then quarterly for three years,
then every six months until remediation is complete).
7. The City would defer to the County in the dealings with CDPHE and not communicate with CDPHE or
other regulatory entity about the Landfill Corrective Measures, Environmental Contamination or
Closure/Post-Closure, except:
a. With respect to any orders in which the City is named a party;
b. To respond to requests and inquiries from regulatory agencies;
Agenda Item
Item # Page 3
c. Any circumstance that presents a threat of immediate and serious physical harm to human
health or immediate and serious harm to the environment (excluding iss ues addressed in the
IGA and currently known circumstances), with concurrent notice to the County;
d. To make a report or notice required by state or federal law, with concurrent notice to the
County; and
e. Regarding activities or decisions related to Cathy Fro mme Prairie, other than about the Landfill
Corrective Measures and related contaminants, with concurrent notice to the County.
8. All Parties will forego remedies under CERCLA and recovery of costs for closure, post closure and
remediation and waive other claims as of the effective date of the IGA.
9. The City would begin to pay tipping fees at the Landfill at the beginning of 2021.
10. The City Manager must obtain Council approval of an ordinance authorizing an easement on Cathy
Fromme Prairie for remediation work if that work is necessary to carry out a CDPHE-approved
remediation plan after consideration of the Natural Areas values. What remedial work is required to
occur on the Natural Area under the CDPHE approved remedial plan will not be known until that plan
is proposed and evaluated by CDPHE.
If the Council approves the IGA, assuming the IGA is approved and signed by all Parties, on January 5 an
ordinance will be presented to Council authorizing an easement at a later date reflecting the conditions listed in
the Agreement, including the Natural Areas Resource Protection and Restoration Standards.
CITY FINANCIAL IMPACTS
The City will contribute to the cost of corrective measures as outlined in the Intergovernmental Agreement and
described above. The exact cost of the corrective measures is unknown at this time.
ATTACHMENTS
1. Powerpoint Presentation (PDF)
December 22, 2020IGA-Corrective Measures at Larimer County LandfillJudy Schmidt, Senior Assistant City AttorneyMatt Zoccali, Senior Manager Environmental Regulatory AffairsATTACHMENT 1
Presentation Outline• Background• Landfill • Groundwater and Surface Water Contamination• Summary of Intergovernmental Agreement• Cost-sharing and reimbursement process• Closure and Post-closure versus Remediation• Roles and Responsibilities• Settlement - Other Claims Waived• Cathy Fromme Natural Area Easement – to Council Jan. 5, 20212
Staff Recommendation• Staff recommends approval of this inter-governmental agreement3
Background• Stakeholders/Parties• Fort Collins• Loveland• Larimer County• Colorado Department of Public Health and Environment (CDPHE)• Collaborating on assessment of corrective measures for environmental contamination of groundwater and surface water• Environmental contamination from groundwater interaction with Landfill debris• Contaminants of Concern• volatile organic compounds• 1,4-Dioxane4
Site Location5
Cost-Sharing• Remediation costs would be shared as follows:•Larimer County responsibility: First $3 million. •Additional amounts above the first $3 million: -Larimer County – 60%-City of Fort Collins – 30%-City of Loveland – 10%•Remediation costs would include all costs (including consultant costs) to monitor, investigate, assess, plan, design and implement the remedy to address the contamination 6
Cost Sharing - Continued•Larimer County will be reimbursed within 45 days of receipt of annual statement of costs-And after an opportunity to review the statement of work and invoice. •Responsibility for “financial assurances” for the remediation work if they are required by CDPHE, would be shared in the same proportions, but Fort Collins retains flexibility in how to post that financial assurance7
Cost-sharing (continued)• The County would agree to pay:• “closure and post closure” costs. • “transaction costs” to include preparation of documents by consultants and attorneys:• for closure and post-closure matters; • to carry out administrative or judicial challenges to regulatory orders (unless Fort Collins agrees to participate and share costs); and • to any fines or penalties imposed despite County’s diligent efforts to comply8
Roles and Responsibilities• The County will be responsible for carrying out closure, post closure and remediation and will communicate independently with CDPHE. • use “reasonable efforts” to keep Cities informed of significant events and communications• meet periodically with the cities (every other month for two years, then quarterly for three years, then every six months until remediation is complete).• The County will make reasonable efforts to remove the cities removed from any CDPHE Orders. • The County will be responsible for carrying out closure, post closure and remediation and will communicate independently with CDPHE. •9
Roles and Responsibilities Continued• The City would defer to the County in the dealings and communications with CDPHE • Exceptions:• Communication related to any orders in which the City is named;• To respond to requests and inquiries from regulatory agencies;• Any circumstance that presents a threat of immediate and serious physical harm to human health or immediate and serious harm to the environment;• To make a report or notice required by state or federal law; and• Regarding activities or decisions related to Cathy Fromme Prairie Natural Area unrelated to corrective measures work and related known contaminants10
Other Items• All Parties will forego and waive any other claims as of the effective date of the IGA.• The City would begin to pay tipping fees at the Landfill at the beginning of 2021.• Council approval needed in to authorize an easement on Cathy Fromme Prairie for remediation work• An ordinance will be presented to Council in January authorizing an easement at a later date on the conditions listed in the Agreement• Natural Areas Resource Protection and Restoration Standards apply. • Will authorize remedial work required to occur on the Natural Area under the CDPHE approved remedial plan (not yet known)11
Conclusion• Staff recommends approval of this inter-governmental agreement• Questions?12
Monitoring Well Network13
-1-
RESOLUTION 2020-119
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE EXECUTION OF AN
INTERGOVERNMENTAL AGREEMENT AMONG LARIMER COUNTY, THE CITY OF
FORT COLLINS, AND THE CITY OF LOVELAND RELATED TO CORRECTIVE
MEASURES AT THE LARIMER COUNTY LANDFILL
WHEREAS, the Larimer County Solid Waste Facility at 5887 S. Taft Hill Road
(“Landfill”) is a regional solid waste processing and disposal site operated and maintained by the
Larimer County (“County”); and
WHEREAS, since 1967 the Landfill site has been and is currently owned in the following
undivided interests: 50% Fort Collins, 25% Larimer County and 25% City of Loveland; and
WHEREAS, Fort Collins operated the Landfill from 1963 until January 1, 1975, after
which the County operated the Landfill pursuant to an agreement among the City, the City of
Loveland and the County (collectively the “Parties”) dated November 21, 1974, and remains the
current operator; and
WHEREAS, the Parties have been collaborating since 2018 to assess and propose
corrective measures for environmental contamination of groundwater detected at the Landfill and
extending to the City’s adjacent Fromme Prairie Natural Area, in cooperation with the Colorado
Department of Public Health and Environment (“CDPHE”); and
WHEREAS, the Parties desire to enter into an Intergovernmental Agreement formalizing
the roles, responsibilities and financial commitments of Fort Collins, Larimer County, and
Loveland with respect to planning and carrying out corrective measures to address such
environmental contamination.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS:
Section 1. That the City Council hereby makes any and all determinations and
findings contained in the recitals set forth above.
Section 2. That the City Manager is hereby authorized to execute the
Intergovernmental Agreement substantially in the form attached hereto as Exhibit “A,” with such
modifications and additions 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 set forth herein and not otherwise inconsistent with this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
22nd day of December, A.D. 2020.
_________________________________
Mayor
-2-
ATTEST:
_____________________________
City Clerk
2020-12-22 FINAL REVISED DRAFT – COMPLETE IN SUBSTANCE; SUBJECT TO FINAL EDITING AND
FORMATTING
Exhibit A
1
INTERGOVERNMENTAL AGREEMENT AMONG LARIMER COUNTY, THE CITY
OF FORT COLLINS, AND THE CITY OF LOVELAND RELATED TO CORRECTIVE
MEASURES AT THE LARIMER COUNTY LANDFILL
This Intergovernmental Agreement (“IGA”) is made by and among the Board of County
Commissioners of Larimer County, Colorado (“County”), the City of Fort Collins, Colorado (“Fort
Collins”), and the City of Loveland, Colorado (“Loveland”) as of the __ day of ___, ___
(“Effective Date”). The three entities are referred to in this IGA collectively as the “Parties” and
individually as a “Party.” Fort Collins and Loveland are referred to collectively in this IGA as the
“Cities” and individually as a “City.”
WHEREAS, the Larimer County Solid Waste Facility at 5887 S. Taft Hill Road
(“Landfill”) is a regional solid waste processing and disposal site operated and maintained by the
County; and
WHEREAS, the site on which the Landfill operates is described as the North one-half of
Section 9, Township 6 North, Range 69 West of the 6th P.M. (“Landfill Site”), which is depicted
on the map attached hereto as Exhibit A; and
WHEREAS, Fort Collins and the County entered into a Memorandum of Agreement dated
October 17, 1963 (the “1963 MOA”) and all three Parties subsequently entered into a
Memorandum of Agreement dated September 16, 1965 (the “1965 MOA”), related to the
establishment and operation of the Landfill; and
WHEREAS, since 1967 the Landfill Site has been and is currently owned by the Parties in
the following undivided interests: 50% Fort Collins, 25% County and 25% Loveland; and
WHEREAS, Fort Collins operated the Landfill from 1963 until January 1, 1975, after
which the County operated the Landfill pursuant to an agreement among the Parties dated
November 21, 1974 (the “1974 Agreement”) and remains the current operator as of the Effective
Date; and
WHEREAS, the Landfill is forecasted to consume the available permitted air space capacity
by the fourth quarter of the year 2024 at which time it will be closed; and
WHEREAS, environmental contamination has been detected at and emanating from the
Landfill Site, which contamination extends onto some adjoining natural area property owned
and/or managed by Fort Collins that is commonly referred to as the Cathy Fromme Prairie and the
Franz Property (collectively, the “Natural Area”) and Fort Collins’ adjoining right-of-way for Taft
Hill Road (the “Taft Hill ROW”); and
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WHEREAS, in 2018, the CDPHE presented the Parties with a Draft Compliance Order on
Consent related to an assessment of corrective measures and recommendation and implementation
of a remedy for contamination at and from the Landfill to resolve alleged violations of the Colorado
Solid Wastes Disposal Sites and Facilities Act and implementing regulations; and
WHEREAS, on October 8, 2020, the CDPHE issued a final Notice of Violation and Cease
and Desist Order related to alleged surface water quality contamination caused by the Landfill to
all three Parties; and
WHEREAS, the Parties desire to monitor and remediate contamination at and from the
Landfill in a manner consistent with law to protect human health and the environment; and
WHEREAS, the Parties desire to enter into this IGA to establish the Parties’ agreement
concerning assessing, selecting, and implementing corrective measures necessary to remediate the
environmental contamination at and from the Landfill, and sharing certain costs for same all as set
forth in this IGA; and
WHEREAS, the County and Loveland understand and acknowledge that Fort Collins is also
the owner and/or manager of the Natural Area that has to some extent been contaminated by the
Landfill; and that, notwithstanding this dual status, the County and Loveland agree to reasonably
accommodate Fort Collins’ interests as an adjacent landowner in the cleanup of such
contamination at the Natural Area in accordance with this IGA; and
WHEREAS, Fort Collins has cooperated and intends to continue cooperating with the
County’s efforts to monitor and remediate contamination on the Natural Area by providing access
and easements as reasonably necessary to conduct such activities; and
WHEREAS, the Parties are authorized under C.R.S. §§ 29-1-201, et seq., as amended, to
cooperate and contract with one another with respect to functions lawfully authorized to each of
the Parties, and the people of the State of Colorado have encouraged such cooperation and
contracting through the adoption of Article XIV, § 18(2) of the Colorado Constitution; and
WHEREAS, each of the Parties has satisfied all applicable notice and hearing requirements
prior to entering into this IGA.
NOW THEREFORE, in consideration of the above-recited premises, the terms and
conditions of this IGA, all of which the Parties acknowledge are material; and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged; the Parties
agree as follows:
I. DEFINITIONS AND PURPOSE
A. As used in this IGA, the following definitions will apply:
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1. “Environmental Contamination” means all currently known and
subsequently discovered contamination of soil, air and surface and ground
water at or emanating from the Landfill.
2. “Landfill Corrective Measures Work” means monitoring, investigation,
assessment, planning, designing of remedies, and remediation of any
Environmental Contamination that is: (a) consistent with a plan approved
by CDPHE or EPA or in furtherance of seeking CDPHE or EPA approval
of a plan; (b) directed or ordered by CDPHE or EPA; (c) required by, or
necessary to comply with, CDPHE regulations (as interpreted by CDPHE
or as finally interpreted by a court, including an administrative court)
pertaining to the Environmental Contamination; or (d) otherwise as
mutually agreed to in writing by the Parties. The County shall
independently (from the Cities) perform remedial work to address the
Environmental Contamination as required by law. For clarity, this IGA
does not prevent the County from challenging decisions and actions of
CDPHE or the EPA, and this IGA does not obligate the County to comply
with interpretations of regulations or directives or orders from CDPHE or
the EPA that it deems invalid or inapplicable, and the County pursues a
resolution in a responsible manner to that disagreement. If a cost is
determined to not be a shared cost, the Cities shall not be obligated to
reimburse under the cost sharing provisions of this IGA and the remaining
terms shall continue in effect.
B. The purpose of this IGA is to:
A. Establish a framework for the allocation of responsibilities and sharing of
costs between the owners of the Landfill Site to address the Environmental
Contamination and perform the Landfill Corrective Measures Work. In the
event that the CDPHE or EPA does not approve Landfill Corrective
Measures Work to address the Environmental Contamination, the Parties
agree to negotiate remediation efforts to address the Environmental
Contamination.
B. Clarify the responsibilities for the costs of closure and post-closure care for
the Landfill (as if it were not contaminated) distinct from the Landfill
Corrective Measures Work.
C. Establish a framework for timely communication and necessary
coordination regarding the Landfill Corrective Measures Work.
D. Clarify the roles and responsibilities of the Parties with respect to the
Landfill Corrective Measures Work, including coordination and
cooperation between Fort Collins and the County with respect to the
review and selection of corrective measures that may be implemented on
or around the Natural Area.
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II. TERM
The Effective Date listed above is the date on which all Parties to this IGA have fully
executed this IGA. This IGA shall become effective on the Effective Date and shall remain in
effect until such time as it is terminated: 1) by written agreement of all Parties, or 2) when the
Parties agree in writing that the remediation of the Environmental Contamination is completed,
whichever first occurs.
III. LANDFILL SITE
A. The Landfill Site shall continue to be used for regional solid waste purposes
consistent with this IGA, the 1974 Agreement, and the Intergovernmental
Agreement for Solid Waste Programming and Infrastructure Improvements made
by the parties in 2019 (“2019 Agreement”). Except as explicitly described herein
with specific reference to the agreement or plan being amended or altered, this
IGA does not in any way amend or otherwise alter the 1974 Agreement or any
other agreements, management plans or closure plans not prepared as part of
Landfill Corrective Measures Work, or the continued operation of the Landfill by
the County. To the extent provisions in the 1974 Agreement allocates
responsibility for Environmental Contamination among the Parties and Closure
Costs (as defined below), those provisions are amended by this IGA’s provisions
on allocation of responsibility for Environmental Contamination. Environmental
Contamination is addressed by this IGA and the 1974 Agreement addresses
landfill operation issues as if there were no Environmental Contamination. In the
event of any conflict between or among any of the terms and conditions stated in
this IGA and those stated in any of the agreements and plans listed in the prior
sentence which cannot be resolved so as to give full effect to both or all
provisions, then, as between the Parties, the terms and conditions contained in this
IGA shall control.
B. No Party shall sell or otherwise dispose of its ownership interest in the Landfill or
Landfill Site without the prior written approval of all Parties which approval may
be withheld or conditioned in any Party’s sole discretion.
IV. FUNDING OF CLOSURE AND POST-CLOSURE CARE OF THE LANDFILL,
AND LANDFILL CORRECTIVE MEASURES WORK
A. Cost Responsibilities:
1. “Closure Costs” are those costs of closure and post-closure care activities,
known and unknown, that would be required for the Landfill, consistent
with law, as if there was no Environmental Contamination. The Parties
agree that these activities generally consist of the requirements and items
listed by the County’s third-party consultant and approved by CDPHE for
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2019, with such list attached as Exhibit B. The County shall pay 100% of
the Closure Costs.
2. “Remediation Costs” are those costs directly related to analyzing,
developing, implementing, and monitoring the Landfill Corrective
Measures Work, including without limitation the costs of consultants
associated therewith, that are incurred for Landfill Corrective Measures
Work on or after the Effective Date of this IGA.
3. Costs shall be allocated and shared among the Parties as follows:
a. The County shall pay 100% of the first $3,000,000.00 ($3M) of
Remediation Costs (the “Initial Remediation Costs”).
b. If Remediation Costs exceed $3,000,000.00, the Parties shall
apportion such Remediation Costs that exceed $3,000,000.00 (the
“Shared Remediation Costs”) as follows:
i. The County shall pay sixty percent (60%).
ii. Fort Collins shall pay thirty percent (30%)
iii. Loveland shall pay ten percent (10%).
4. The Parties acknowledge that CDPHE, pursuant to C.R.S § 30-20-104.5,
and relevant CDPHE regulations, may require the Landfill to post
financial assurance for the Remediation Costs in addition to the Closure
Costs. The incorporation of the Remediation Costs into the required
financial assurance shall not change the distinction herein between
Closure Costs and Remediation Costs. For any financial assurance
required by CDPHE for Remediation Costs, the County shall be
responsible for satisfying the first $3,000,000.00. Any required financial
assurance for Remediation Costs above $3,000,000.00 shall be shared
60% County, 30% Fort Collins, and 10% Loveland. The Parties each
retain full discretion to satisfy their portion of the assurance obligation by
any means acceptable to CDPHE. The financial assurance obligation is in
addition to the obligation to pay Remediation Costs, and any unused
assurance funds shall be returned to the party that posted it. The County
will coordinate with CDPHE on the posting requirements for any
Remediation Cost assurances and keep the Cities apprised of all available
posting options with sufficient time to choose the option each prefers.
5. “Litigation Costs” include the costs of litigation in judicial or
administrative forums, and include the costs of legal fees, expert witness
fees, and consultant fees for litigation, and any costs imposed against any
Party as a result of litigation. All Parties shall be responsible for their
respective Litigation Costs. If, however, all Parties agree that there should
be action to challenge a regulatory decision, the Parties in agreement with
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the challenge to a regulatory decision will share Litigation Costs for such
challenge.
6. “Penalties and Fines” include any assessment of penalties, fines, charges,
or costs for failing to comply with any CDPHE requirement pertaining to
the Environmental Contamination. Penalties and Fines shall be
independent of Remediation Costs and Litigation Costs. The County will
be solely responsible for Penalties and Fines unless they are assessed
notwithstanding the County’s diligent efforts to comply with any
regulatory requirement pertaining to the Environmental Contamination, in
which case the Penalties and Fines will be shared as follows: County pays
60%, Fort Collins pays 30%, Loveland pays 10%. Any disagreement
regarding the County’s diligent efforts for the purpose of this subsection
shall be considered a “dispute” and shall be resolved in accordance with
the Dispute Resolution provision in Section IX of this IGA.
7. “Internal Costs” are the salaries and overhead for the Parties’ employees
and out of pocket expenditures for outside legal counsel retained by a
Party for matters covered by the cost sharing provisions of this IGA. Each
Party shall be responsible for its own Internal Costs.
B. Accounting and Reimbursement for Shared Remediation Costs.
1. The County will be responsible for tracking all financial information
needed to determine and track the Remediation Costs.
2. On or before March 1 of each year, the County shall provide to the Cities:
a. A detailed itemization and accounting of the Remediation Costs
incurred and paid during the prior calendar year (“Statement”),
with an invoice, if any, to each City for reimbursement to the
County of that City’s share of any Shared Remediation Costs
(“Invoice”); and
b. A detailed projection of the estimated Remediation Costs and
Shared Remediation Costs to be incurred in the current calendar
year. The projection of costs shall consider the likely schedule for
implementing the required Landfill Corrective Measures Work
based on all legal requirements.
3. Review and Payment of Remediation Costs. The Cities may request
additional information, clarification, or documentation regarding the
County’s Statement and Invoice, as necessary to verify and agree to the
stated and invoiced amounts. The Cities shall have thirty days to review
the County’s Statement and Invoice for conformance with the IGA, and
object to them, except that said thirty days shall not commence until a City
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requesting additional information, clarification, or documentation has
received the requested information, clarification, or documentation, to the
extent the same may reasonably be made available. As for each City:
a. If no objection is made, the City will be deemed to have accepted
the Statement and Invoice presented to that City, and shall, within
forty-five days after receipt of such Statement and Invoice, pay the
County the amount stated in the Invoice.
b. If any objections are made to any Statement or Invoice presented
to that City, the objections shall be considered a “dispute” and
shall be resolved in accordance with the Dispute Resolution
provisions in Section X of this IGA; provided, however, that all
Remediation Costs set forth in the Statement that are not objected
to shall be deemed accepted by that City and that City shall, within
forty-five days after receipt of such Statement and Invoice, if any,
pay the County the amount stated in the Invoice less any amounts
attributable to the Remediation Costs that City has objected to.
Once the dispute over the objections is resolved, that City shall,
within forty-five days after resolution of the dispute, pay the
County the amount agreed upon as part of the dispute resolution
process.
V. RESPONSIBILITY FOR IMPLEMENTATION OF CLOSURE AND POST-
CLOSURE AND LANDFILL CORRECTIVE MEASURES WORK AND
COMMUNICATION AND COORDINATION WITH STATE AND FEDERAL
REGULATING AGENCIES
A. County Responsibilities
1. The County shall independently (from the Cities) perform the Landfill
Corrective Measures Work and negotiate and correspond with the CDPHE
and any other regulatory governmental entities concerning the Landfill
Corrective Measures Work.
2. Pursuant to the 1974 Agreement, the County shall continue to
independently manage Landfill closure and post-closure care.
3. The County will not request Fort Collins or Loveland be included or
otherwise be named by CDPHE or any other regulating entity as a party to
a compliance order or any other action related to the Environmental
Contamination. The County will use reasonable efforts to avoid naming
Fort Collins or Loveland as a party to any proceeding and will not argue in
any proceeding that Fort Collins or Loveland is an indispensable party to
the proceeding. The County will request in negotiations with CDPHE or
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other regulating entity that the County be the sole responsible party to
implement any required action to address the Environmental
Contamination or for any enforcement action, administrative proceeding,
or regulatory agreement pertaining to the Environmental Contamination.
4. The County will negotiate with CDPHE appropriate terms of any consent
order or a unilateral order between the County and CDPHE as the only
named respondent for Landfill Corrective Measures Work. In the event
that a Division of CDPHE names Fort Collins or Loveland as parties to
any administrative or judicial enforcement action or order related to the
Landfill, the County will promptly and formally request the CDPHE’s
dismissal of both Cities as parties to any such action based on the
County’s responsibility to perform the Landfill Corrective Measures Work
set forth in this IGA. It is the Parties’ intent and agreement that neither
Fort Collins nor Loveland shall be a named as a party to any
administrative or judicial enforcement action or order addressing the
Landfill Corrective Measures Work unless a Court of lawful jurisdiction
determines Fort Collins or Loveland to be an indispensable party to the
action.
5. If despite all reasonable efforts by the County, Fort Collins and/or
Loveland are named parties to any administrative or judicial enforcement
action or order related to the Landfill, the County will coordinate with the
named City(ies) about responses to the actions; provided, however that
each named City shall have the right to communicate with and
independently participate in any administrative or judicial enforcement
action or order with respect to which it is a named party about the subject
matter of such action.
B. The Cities’ Responsibilities
1. Neither City will communicate directly or indirectly with CDPHE or other
regulatory entity regarding the County’s performance of the Landfill
Corrective Measures Work, the Environmental Contamination, closure
and post-closure activities, and negotiations with CDPHE or other
regulatory entity, unless otherwise allowed under this IGA.
2. Unless specifically named as a party to any administrative or judicial
enforcement action, order, or otherwise the recipient of a communication
from the CDPHE requesting an independent response, Fort Collins and
Loveland shall not communicate with the CDPHE or other regulatory
entity regarding the closure and post-closure activities and the Landfill
Corrective Measures Work except to respond to CDPHE inquiries directed
specifically to that City regarding such matters. In the limited
circumstances in which Fort Collins or Loveland is reasonably required
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and permitted by this IGA to communicate with regulatory authorities
concerning Landfill matters, including remediation of Environmental
Contamination or the Landfill Corrective Measures Work, Fort Collins or
Loveland will use reasonable efforts to discuss the subject of such
communication with the County prior to such communication with the
regulatory authority.
3. The limitation in paragraph V.B.2, above, as to communication with
CDPHE, shall not apply to:
a. Notifying CDPHE about the terms of this IGA.
b. As permitted by Section V.B.2, above.
c. Any circumstance that presents a threat of immediate and serious
physical harm to human health or immediate and serious harm to
the environment about which either City may communicate with
CDPHE directly, with concurrent notice to the County. The parties
intend this exception will not apply to the present circumstances
addressed by this IGA and reasonably related circumstances, and
instead is limited to matters of an urgent and serious nature that are
currently unknown.
d. Any reporting or notice required by federal or state law, with
concurrent notice to the County.
e. Any communication with CDPHE regarding the Natural Area and
unrelated to the Landfill Corrective Measures Work and related
contaminants, with concurrent notice to the County.
4. If despite all reasonable efforts by the County, Fort Collins and/or
Loveland are named parties to any administrative or judicial enforcement
action or order related to the Landfill, Fort Collins and Loveland will work
with representatives of the County to coordinate responses to the actions.
C. Coordination and Communication
1. The County shall use reasonable efforts to keep Fort Collins and Loveland
apprised of significant events, submittals, and decisions regarding
communications with CDPHE related to Landfill closure and post-closure
care activities and the Landfill Corrective Measures Work.
2. The Parties shall meet to discuss the Environmental Contamination,
closure and post-closure care activities, and the Landfill Corrective
Measures Work following the Effective Date of this IGA. The agenda for
these regular meetings will cover any subject related to Environmental
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Contamination, Landfill closure or post-closure care activities, and
Landfill Corrective Measures Work if requested by a City. The County
will provide relevant information before the meeting but is not required to
provide information the County does not already have, including
collecting additional data, testing, analysis, or other assembly or
compilation. Unless otherwise mutually agreed to by the Parties, the
County will convene such meetings on a regular schedule as follows:
a. Once every other month for the first two years after the Effective
Date of this IGA.
b. Once every three months beginning three years after the Effective
Date of this IGA through five years after the Effective Date of this
IGA.
c. After five years following the Effective Date of this IGA, once
every six months.
3. Public Outreach
a. The Parties agree to coordinate in advance, through their respective
Project Managers and necessary public information staff, the
release of any public information or outreach related to this IGA,
the Environmental Contamination, or the Landfill Corrective
Measures Work, including public disclosures, public comment
processes, or press releases.
b. Prior to the date of publication of any related public notice, each
Party agrees to provide advance notice to the other Parties of any
public meeting of its governing body at which the governing body
is scheduled to publicly discuss or act on any matter related to the
Environmental Contamination or the Landfill Corrective Measures
Work.
D. Remediation of Environmental Contamination at Natural Area
1. All Parties will rely on a CDPHE approval of a remediation plan to set
the standards (numeric or descriptive) for environmental cleanup of the
Natural Area.
2. The County will use its best reasonable efforts to avoid any disturbance
of the Natural Area.
3. If notwithstanding the requirement in subparagraph 2 above, the Natural
Area must be disturbed:
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a. The County will protect (in its proposal to CDPHE) all Natural
Area values stated in the Fort Collins Natural Areas and Conserved
Lands Easement Policy for the Natural Area, which is attached
hereto as Exhibit C.
b. The County proposal to CDPHE for approval will describe (1) the
Natural Area values underlying or impacted by its proposal, and
(2) how the strategies in the proposal attain and protect those
values.
c. Fort Collins will accept a CDPHE approval that is based on
Natural Area values as determined by CDPHE after CDPHE’s
review of the County proposal.
d. In January 2021, the Fort Collins City Manager will present to and
recommend for approval to the Fort Collins City Council an
ordinance authorizing the easement that is required for the County
to implement the Landfill Corrective Measures Work, consistent
with this Section 4. This ordinance will confirm that any easement
as required for the remediation plan developed and approved in
accordance with this Section V.D is authorized and shall be
granted (without payment of real estate-related charges) in
accordance with this Section, subject only to the general resource
protection standards, and standards and guidelines for restoration
in the Fort Collins Natural Areas and Conserved Lands Easement
Policy. Any costs incurred by the County in complying with these
objective requirements of the Easement Policy shall be
Remediation Costs. If the ordinance referenced in this paragraph
is not approved in January, 2021 and has not been authorized at
such time as a need for an easement arises in the future, the failure
to approve such an ordinance shall be considered a breach.
e. By way of example but not limitation, although Fort Collins
strongly disfavors phytoremediation on the Natural Area, if the
Landfill Corrective Measures Work as approved by CDPHE
requires such phytoremediation after consideration of the matters
set forth in this Section 4, the easement will include authorization
for phytoremediation.
VI. PAYMENT OF LANDFILL FEES AND CHARGES: AMENDMENT OF 1974 IGA
The Parties agree that Paragraph 5 of the 1974 Agreement, entitling the Cities’ to use the
Landfill without charge for “disposal of trees, limbs, and other refuge (sic - refuse)
related to such City’s governmental operations” is hereby terminated effective January 1,
2021.
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VII. WAIVERS AND RESERVATIONS
A. Comprehensive Environmental Response, Cost, Liability Act (CERCLA). All
Parties expressly agree that they will not pursue any CERCLA or other similar
federal or state law remedies against each other related to the Environmental
Contamination or the Landfill Corrective Measures Work.
B. Each Party reserves all rights and duties to respond to any emergency that will
cause an immediate harm to the public health or environment. Each Party
acknowledges that no such circumstance is known to exist as of the Effective
Date of this IGA.
C. In consideration of the mutual promises and undertakings set forth in this IGA,
each Party waives and releases all claims, demands, damages, costs, causes of
action, suits at law or in equity, of whatever kind or nature, known or unknown,
accrued or un-accrued, contingent or non-contingent, arising from the beginning
of time up until the Effective Date of this IGA, that such Party may have against
any other Party arising from or related to the Landfill, including but not limited to
contribution or other claims under CERCLA.
VIII. ALLEGED BREACH OF MATERIAL OBLIGATION OF THIS IGA
A. If any Party believes another Party is in breach of any material obligation under
this IGA, the non-breaching Party shall provide written notice and a description of
the alleged breach to the other Parties. The Party alleged to be in breach shall
have 30 days to cure such breach. After the cure period, if the alleged breach
remains uncured, the Parties agree that the uncured breach shall be considered a
“dispute” and shall be resolved in accordance with the Dispute Resolution
provisions in Section IX of this IGA. After completion of the Dispute Resolution
process, any Party may seek specific performance of the IGA and/or damages for
the alleged breach to the extent and in any manner authorized by law.
B. Each Party specifically agrees to waive and forego any right it may have to
unilaterally terminate this IGA as a remedy for the breach by another Party of any
material obligation under this IGA.
IX. DISPUTE RESOLUTION
In the event of any dispute among the Parties arising out of this IGA including, without
limitation, whether there has been a breach of any material obligation under this IGA, the
following dispute resolution process shall be followed:
A. Notice of Dispute. If any Party asserts a claim, dispute, or controversy arising out
of this IGA or alleges that any other Party has failed to comply with, or is in
default of, any term or condition in this IGA including, without limitation, the
failure to comply with any provision of this IGA in good faith (collectively
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“Claim”), the Party asserting the Claim shall provide written notice within a
reasonable period after learning of the same. The Parties agree that they shall
endeavor to resolve all Claims in good faith either informally under Subsection B
or through non-binding mediation under Subsection C.
B. Informal Dispute Resolution. Upon delivery of a notice of a Claim pursuant to
Subsection A, the Parties agree that their respective Project Managers shall meet
in person or hold a telephone conference within five (5) business days to confer in
good faith about the Claim and its resolution. If the Project Managers are unable
to resolve the Claim within said five (5) business-day period, then the Parties
agree to submit the matter to the City and County managers who, unless otherwise
mutually agreed, shall have fifteen (15) business days to resolve the Claim before
triggering mandatory non-binding mediation set out in Subsection C.
C. Mediation. Any Claim that has not been resolved pursuant to Subsection B, shall
be submitted to non-binding mediation. All such mediated settlement conferences
shall take place at a mutually acceptable time and place within sixty-three (63)
days after the mandatory non-binding mediation is triggered under Subsection B.
The mediator shall be selected by mutual agreement of the Parties; or, if the
Parties cannot agree on a mutually acceptable mediator, then each Party shall
designate a person who it believes to be qualified to mediate the Claim, and those
three people shall then appoint a mediator that they believe is qualified to fairly
and diligently conduct the mediation. The Parties shall share the mediator’s fee
and any filing fees equally but shall be responsible for payment of their own
attorneys’ and consultants’ fees; unless one of the Parties does not have a dispute
in which case the two Parties in dispute will share the mediation fees. To the
extent an agreement pertaining to the Claim is reached during the mediation, that
agreement shall be enforceable as a settlement agreement in any court having
jurisdiction thereof.
D. Litigation. Any Claim that has not been resolved pursuant to Subsections B or C
may be brought as a claim in the District Court in and for County of Larimer,
State of Colorado, or the federal District Court in Denver if federal issues may be
involved, and venue, for all such actions shall lie only in such courts. The Parties
expressly and irrevocably waive any objections or rights that may affect venue of
any such action, including, but not limited to, forum non-conveniens or otherwise.
E. Remedies Cumulative. In addition to any other remedies provided in this IGA,
each Party shall be entitled to seek any legal or equitable relief authorized under
law for a failure of any other Party to comply with any term or condition in this
IGA that is not inconsistent with the Claim resolution provisions set out in this
Article. By signing this IGA, no Party is waiving any other legal or equitable
rights it might have concerning actions by any other Party that are not described
in this IGA.
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X. MISCELLANEOUS
A. Confidentiality. The Common Interest Agreement previously executed by the
Parties applies to the work performed pursuant to this IGA.
B. Calculation of days. Unless otherwise specified, time periods within or following
which any payment is to be made or act is to be done shall be calculated by
excluding holidays and weekends and excluding the day on which the period
commences and by including the day on which the period ends.
C. Notice. Any notice, request, demand, consent, or approval required or permitted
under this IGA shall be in writing and shall be hand-delivered or sent by registered
or certified mail, return receipt requested, or by overnight commercial courier,
addressed below. Such notice or other communication shall be deemed given
when so hand-delivered or three (3) business days after so mailed, or the next
business day after being deposited within an overnight commercial courier. This
provision shall not apply to documents provided pursuant to Section V (C).
1. If to County:
County Manager
PO Box 1190
Fort Collins, CO 80522
County Attorney
224 Canyon Avenue
Suite 200
Fort Collins, CO 80522
Larimer County Solid Waste Department
5887 S. Taft Hill Road
Fort Collins, CO 80526
2. If to Fort Collins:
City Manager
300 Laporte Avenue
P.O. Box 580,
Fort Collins, CO 80522
City Attorney
300 Laporte Avenue
P.O. Box 580,
Fort Collins, CO 80522
3. If to Loveland:
Public Works Director
2525 W. First St.
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FORMATTING
Exhibit A
15
Loveland, CO 80537
Environmental Compliance Administrator
Human Resources Department
500 E. Third St.
Loveland, CO 80537
City Attorney
500 E. Third St, Ste. 220
Loveland, CO 80537
D. Annual Appropriations. Any financial obligations of the Parties arising under this
IGA are contingent upon funds for that purpose being appropriated, budgeted and
otherwise made available by the respective governing bodies of the Parties in their
sole discretion. No term or condition of this IGA is intended nor shall be
interpreted to create a multi-fiscal year obligation or debt of the Parties.
E. Entire Agreement. This IGA is to be construed according to its fair meaning and
as if prepared by all Parties hereto and is deemed to be and contain the entire
understanding and agreement between the Parties hereto. There shall be deemed
to be no other terms, conditions, promises, understandings, statements, or
representations, expressed or implied, concerning this IGA unless set forth in
writing and signed by the Parties hereto.
F. Governing Law. This IGA shall be governed by and its terms construed under the
laws of the State of Colorado.
G. Nature of Relationship. The provisions of this IGA shall not be construed as
creating a partnership, joint venture, or other relationship between the Parties.
Unless specifically provided, this IGA shall not allow any Party to act as the agent
of the other Party, nor permit any Party to have any authority to act for, or to
assume any obligations or responsibilities on behalf of the other Party, nor in any
manner limit the Parties in carrying out their respective separate businesses or
activities. Employees, agents, consultants, and attorneys of one Party are not, and
shall not be deemed to be, employees, agents, consultants, and attorneys of the
other Party.
H. Rule Against Perpetuities. If any property interest under this IGA would be void
or voidable by application of the rule against perpetuities, it is the Parties’ intent
that the time for vesting of such interest shall be modified to be the longest
available term that would be allowed under Colorado law without any applicable
rule against perpetuities.
I. No Personal Liability. No elected official, director, officer, agent or employee of
any of the Parties shall be charged personally by, or held contractually liable to,
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FORMATTING
Exhibit A
16
any Party under the terms and conditions of this IGA or any breach thereof, or
because of its or their execution, approval or attempted execution of this IGA.
J. Third Party Beneficiaries. This IGA is made for the sole and exclusive benefit of
the Parties, and their successors and assigns, and it is not made for the benefit of
any third party. The enforcement of the terms and conditions in this IGA and all
rights of action relating to such enforcement shall be strictly reserved to the
Parties. No third-party beneficiary rights shall be created by this IGA in favor of
any person not a party to this IGA, unless the Parties mutually agree otherwise in
writing.
K. Counterparts. This IGA may be signed by the Parties, electronically or otherwise,
in counterpart.
L. Governmental Immunity. No term or condition of this IGA is intended nor shall
be construed as a waiver, either express or implied, of the monetary limits, notice
requirements, immunities, rights, benefits, defenses, limitations and protections
available to the Parties under any applicable law, including but not limited to the
Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et. seq., as currently
written or hereafter amended or implemented.
M. Assignment. No Party may assign its interest in this IGA without the written
consent of the other Parties, which consent may be withheld at the sole discretion
of each Party.
N. Amendment. This IGA may be modified or amended from time to time to reflect
the mutual agreements and understandings of the Parties regarding the subject
matter hereof. However, no modification or amendment of the terms and
conditions in this IGA shall be valid or binding unless such modification or
amendment is in writing and signed by all of the Parties or their respective
successors in interest. The terms and conditions of any such modification or
amendment shall be construed according to their fair meaning.
O. Waiver. A waiver of any term or condition of this IGA must be in writing and
executed by all the Parties. No waiver of any breach of any term or condition of
this IGA by any Party shall be deemed to imply or constitute a waiver of any
other term or condition of this IGA. The failure of any Party to insist on strict
performance of any term or condition of this IGA shall not constitute or be
construed as a waiver of that Party’s or any other Party’s rights including, without
limitation, the right thereafter to enforce any other default of such term or
condition; neither shall such failure to insist upon strict performance be deemed
sufficient grounds to enable any Party to forego or subvert or otherwise disregard
any other term or condition of this IGA.
P. Force Majeure. No Party hereto shall be considered in default in the performance
of an obligation hereunder to the extent that performance of such obligation is
2020-12-22 FINAL REVISED DRAFT – COMPLETE IN SUBSTANCE; SUBJECT TO FINAL EDITING AND
FORMATTING
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17
delayed, hindered, or prevented by force majeure. Force majeure shall be any
cause beyond the control of the defaulting Party which could not reasonably have
been foreseen and guarded against. Force majeure includes, but is not limited to,
acts of God, fires, riots, pandemics, incendiarism, interference by civil or military
authorities, compliance with regulations or orders of military authorities, and acts
of war (declared or undeclared), provided such cause could not have been
reasonably foreseen and guarded against by the defaulting Party. Force majeure
shall not include increases in labor, commodity, utility, material, supply, fuel, or
energy costs, or compliance with regulations or orders of civil authorities.
Q. Binding Effect. This IGA shall be binding upon and inure to the benefit of the
Parties hereto and to their respective heirs, legal representatives, successors,
executors, and permitted assigns.
R. Construction. Throughout this IGA, the singular shall include the plural, the
plural shall include the singular, and all genders shall be deemed to include other
genders, wherever the context so requires. The terms “including,” “include” or
derivatives thereof, unless otherwise specified, shall be interpreted in as broad a
sense as possible to mean “including, but not limited to,” or “including, by way of
example and not limitation.”
S. Authority. Each of the Parties represents to the other Parties that such Party has
full power and authority to execute, deliver, and perform this IGA, that such Party
has taken the necessary steps that are lawfully required to execute, deliver, and
perform this IGA, and that the individual(s) executing this IGA on behalf of such
Party are fully empowered and authorized to do so.
T. Severability. If any provision of this IGA is held to be invalid or unenforceable to
any extent, the Parties shall meet, confer, and agree on appropriate modifications
to this IGA to ensure that the original intent, obligations, goals, and purposes of
this IGA are satisfied.
IN WITNESS WHEREOF, the Parties have caused this IGA to be ratified by resolution of
their governing Boards or Councils as evidenced by the minutes of their governing Boards or
Councils and executed by their duly authorized officers as of the date first written.
[SIGNATURE PAGES TO FOLLOW]
2020-12-22 FINAL REVISED DRAFT – COMPLETE IN SUBSTANCE; SUBJECT TO FINAL EDITING AND
FORMATTING
Exhibit A
18
BOARD OF COUNTY COMMISSIONERS OF
LARIMER COUNTY, COLORADO
By: __________________________________
Chair
ATTEST:
________________________________
Approved as to form:
_______________________________
County Attorney
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FORMATTING
Exhibit A
19
CITY OF FORT COLLINS, COLORADO
By: _______________________________
Darin Atteberry, City Manager
ATTEST:
_________________________________
City Clerk
Approved as to form:
__________________________________
City Attorney
2020-12-22 FINAL REVISED DRAFT – COMPLETE IN SUBSTANCE; SUBJECT TO FINAL EDITING AND
FORMATTING
Exhibit A
20
CITY OF LOVELAND, COLORADO
By: _______________________________
Stephen C. Adams, City Manager
ATTEST:
_________________________________
City Clerk
Approved as to form:
__________________________________
City Attorney
City of Fort Collins Page 1
Wade Troxell, Mayor Council Information Center (CIC)
Kristin Stephens, District 4, Mayor Pro Tem City Hall West
Susan Gutowsky, District 1 300 LaPorte Avenue
Julie Pignataro, District 2 Fort Collins, Colorado
Ken Summers, District 3
Ross Cunniff, District 5 Cablecast on FCTV Channel 14
Emily Gorgol, District 6 and Channel 881 on the Comcast cable system
Carrie Daggett Darin Atteberry Delynn Coldiron
City Attorney City Manager City Clerk
The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and
will make special communication arrangements for persons with disabilities. Please call 221-6515 (V/TDD: Dial 711
for Relay Colorado) for assistance.
City Council Work Session
December 22, 2020
(After the Adjourned Council meeting, which begins at 6:00 p.m.)
AMENDED 12/18/20
CALL TO ORDER.
1. City of Fort Collins Connexion Update. (staff: Colman Keane; 15 minute presentation; 45 minute
discussion)
The purpose of this item is to provide an overview and update of the Connexion municipal fiber
buildout.
2. Conflicts of Interest and the Ethics Review Process for Complaints about Councilmembers. (staff:
Carrie Daggett; 15 minute presentation; 45 minute discussion)
THIS ITEM HAS BEEN AMENDED.
The purpose of this item is to discuss potential Charter and Code amendments about conflicts of
interest and the ethics review process for complaints against Councilmembers.
ANNOUNCEMENTS.
ADJOURNMENT.
DATE:
STAFF:
December 22, 2020
Colman Keane, Broadband Director
Ginny Sawyer, Policy and Project Manager
Erin Shanley, Broadband Marketing Manager
WORK SESSION ITEM
City Council
SUBJECT FOR DISCUSSION
City of Fort Collins Connexion Update.
EXECUTIVE SUMMARY
The purpose of this item is to provide an overview and update of the Connexion municipal fiber buildout.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
What questions does Council have for the Connexion team?
BACKGROUND / DISCUSSION
The City is well into the buildout of a voter-approved municipal fiber to the home capital project. The creation of
Connexion began over 6-years ago as a conversation among community partners and City leadership to establish
resiliency and an innovative platform for all residents.
This buildout will involve the installation of 5 million feet of fiber adjacent to over 77,000 households and
businesses. Since construction began in late 2018, Connexion now has residential and business customers, a
24/7 technical support team, almost half of the city under design and/or construction, and new products ready to
launch.
Connexion is currently in the tenuous position of ensuring competitive stewardship while meeting the needs and
desires of residents. It is anticipated that Connexion will be able to provide more information with greater
confidence regarding buildout details by the second quarter of 2021.
2020 Highlights
The design-build construction technique involves 3-main phases which occur in a mostly simultaneous fashion.
The City has neighborhoods that are being designed, neighborhoods that are in construction, and neighborhoods
that have service available. Currently, the majority of neighborhoods are in either a design or construction phase.
Activities throughout the process include:
x Design
x Design review and approval
x Utility locates
x Boring new conduit where needed
x Vault installation
x Pulling fiber
x Restoration for asphalt, concrete, irrigation, and vegetation
x Quality control
x Release for service to customers
As the build continues, processes and timelines are becoming more consistent and predictable with the average
time between locates and having service available around 9 months.
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December 22, 2020 Page 2
Progress and production at all phases has been maintained throughout the pandemic. Vendor partners and City
staff worked collaboratively very early on to ensure that safety protocols were in place and that all staff have
access to appropriate personal protection equipment (PPE.) These protocols extend to in-home installation and
COVID-symptom surveys to ensure the safety of installers and residents.
COVID also impacted marketing activities and equipment procurement. With the limitations on community events
and other opportunities to engage residents, staff shifted focus to sponsorships and heavy promotion and
participation at drive-in events. Supply chain impacts were identified early on and addressed to minimize any
impacts to build production rates.
Staff continues to be pleased and encouraged by the continued community enthusiasm and the customer base
where service is available. Connexion now has both residential and large and small business customers.
One area of focus continues to be multifamily dwelling units (MDUs) and homeowner associations (HOAs) with
private infrastructure (typically irrigation related). MDUs require Right of Entry agreements to install fiber and
provide service. This spring, Connexion did a major push to identify and contact HOAs to provide information on
the build process and HOA responsibilities to locate any infrastructure within the right-of-way. Connexion, in
partnership with Loveland Pulse, hosted an informational session on the new Colorado 811 requirements for
private locates on December 8.
Since the inception of broadband conversations, two items have remained at the forefront: digital equity and
future possibilities. The City’s Digital Equity program is on -track to offer full 1-gig service and WIFI at a reduced
price of $19.95. Staff are working with local non-profit housing organizations to be able to engage customers in
early 2021.
ATTACHMENTS
1. Powerpoint Presentation (PDF)
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City Council Work SessionDecember 22, 2020ATTACHMENT 11.1Packet Pg. 4Attachment: Powerpoint Presentation (9797 : Connexion Update)
Purpose21. Review and Background2. Share progress and outlook going forward3. Answer questions4. Looking to the futureATTACHMENT 11.1Packet Pg. 5Attachment: Powerpoint Presentation (9797 : Connexion Update)
3ATTACHMENT 11.1Packet Pg. 6Attachment: Powerpoint Presentation (9797 : Connexion Update)
Building a Gig City 4Focus on delivering community-centric outcomesATTACHMENT 11.1Packet Pg. 7Attachment: Powerpoint Presentation (9797 : Connexion Update)
Future Proofing Fort Collins 5• Drive and manage technological change• Increase development opportunities• Improve business services performance and costeffectiveness• Contribute to a high quality of life• Enhance the community as a center of innovationoBetter support for the emerging “creativeclass”oEnhanced school technology programsoFlexibility for a remote work forceoSmart City adoption (IT automation, machinelearning and the internet of things).ATTACHMENT 11.1Packet Pg. 8Attachment: Powerpoint Presentation (9797 : Connexion Update)
The Build6• $140 million design/build• 77,000 households• 5 million feet of underground fiber• Gig internet + television + phoneATTACHMENT 11.1Packet Pg. 9Attachment: Powerpoint Presentation (9797 : Connexion Update)
Overall Schedule7DesignConstructionAvailable20182019202020212022Atlantic Engineering Group (AEG) workConnexion Service AvailableOngoing2023ATTACHMENT 11.1Packet Pg. 10Attachment: Powerpoint Presentation (9797 : Connexion Update)
Fiber Areas Update Q3 20208PreͲConstruction 147 41%UnderConstruction 150 42%ConstructionComplete 60 17%TotalFiberAreas 35741%42%17%PreͲConstructionUnderConstructionConstructionCompleteATTACHMENT 11.1Packet Pg. 11Attachment: Powerpoint Presentation (9797 : Connexion Update)
Fiber Areas Completed9ATTACHMENT 11.1Packet Pg. 12Attachment: Powerpoint Presentation (9797 : Connexion Update)
Total Fiber Pulled10ATTACHMENT 11.1Packet Pg. 13Attachment: Powerpoint Presentation (9797 : Connexion Update)
Fiber Areas Update Q3 202011ATTACHMENT 11.1Packet Pg. 14Attachment: Powerpoint Presentation (9797 : Connexion Update)
12First Signs Connexion is Coming to Your Neighborhood• Utilities locates: flags, water soluble paint• Door Hangers placed by crews 48 hours prior to work in a neighborhood• Door knocking prior to machinery set up in right-of-way in front of property• Notifications on Nextdoor.com• Average time from construction start to availability is 9 monthsATTACHMENT 11.1Packet Pg. 15Attachment: Powerpoint Presentation (9797 : Connexion Update)
13ATTACHMENT 11.1Packet Pg. 16Attachment: Powerpoint Presentation (9797 : Connexion Update)
14100% Underground ConstructionATTACHMENT 11.1Packet Pg. 17Attachment: Powerpoint Presentation (9797 : Connexion Update)
15Construction VideoATTACHMENT 11.1Packet Pg. 18Attachment: Powerpoint Presentation (9797 : Connexion Update)
COVID Response16ATTACHMENT 11.1Packet Pg. 19Attachment: Powerpoint Presentation (9797 : Connexion Update)
Homeowners Associations & Multi-Dwelling Units17• Colorado 811 Webinar December 8th on private locate updates• Right of Entry Agreements• HOA Contact form at fcconnexion.com/hoa• Contact: Julianna Potts sales@fcconnexion.comATTACHMENT 11.1Packet Pg. 20Attachment: Powerpoint Presentation (9797 : Connexion Update)
Our Future18• Complete in 2022• Delight our customers• Exceed market share goals• Build on this new platform• Smart CitiesATTACHMENT 11.1Packet Pg. 21Attachment: Powerpoint Presentation (9797 : Connexion Update)
Council Questions191. What questions do Councilmembers have for Connexion? ATTACHMENT 11.1Packet Pg. 22Attachment: Powerpoint Presentation (9797 : Connexion Update)
DATE:
STAFF:
December 22, 2020
Carrie Daggett, City Attorney
WORK SESSION ITEM
City Council
SUBJECT FOR DISCUSSION
Conflicts of Interest and the Ethics Review Process for Complaints about Councilmembers.
EXECUTIVE SUMMARY
THIS ITEM HAS BEEN AMENDED.
The purpose of this item is to discuss potential Charter and Code amendments about conflicts of interest and the
ethics review process for complaints against Councilmembers.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
1. What feedback do Councilmembers have about possible amendment of the Charter to modify the definition of
personal interest to address Councilmember employer interests?
2. What direction do Councilmembers have for the City Attorney regarding establishing an alternate Ethics
Review Board process to hear ethics complaints against Councilmembers?
BACKGROUND / DISCUSSION
During 2019 and 2020, several ethics complaints were filed against City Councilmembers. As a result, there have
been several Ethics Review Board meetings, prompting discussion of how the ethics review process might be
improved and of whether the standards for conflicts of interest should be revised. Filing ethics complaints against
City Councilmembers resulted in the delay of City Council action on time -sensitive matters, which seemed to fuel
interest and motivation in filing ethics complaints.
In considering these recent complaints, the Ethics Review Board discu ssed and expressed interest in further
evaluating whether the City’s current conflicts of interest standards adequately define and guide the determination
of conflicts of interest that may arise in dealings with the City by a Councilmember’s employer. The Ethics
Review Board also discussed whether City Councilmembers themselves should evaluate whether other City
Councilmembers committed an ethics violation and suggested that the Council further discuss that issue.
General Background
Conflicts of Interest:
Article IV, Section 9(b)(3) of the City Charter requires any officer or employee who has, or whose relative
has, a financial or personal interest in any decision of any public body of which he or she is a member or
to which he or she makes recommendations, to upon discovery disclose that interest in the manner
described and refrain from voting on, attempting to influence, or otherwise participating in the decision
as an officer or employee.
The Charter defines “financial interest” and “personal interest” as follows (emphasis added):
December 22, 2020 Page 2
Financial interest means any interest equated with money or its equivalent. Financial interest shall not include:
(1) the interest that an officer, employee or relative has as an employee of a business, or as a holder of an
ownership interest in such business, in a decision of any public body, when the decision financially benefits
or otherwise affects such business but entails no foreseeable, measurable financial benefit to the officer,
employee or relative;
(2) the interest that an officer, employee or relative has as a nonsalaried officer or member of a nonprofit
corporation or association or of an educational, religious, charitable, fraternal or civic organization in the
holdings of such corporation, association or organization;
(3) the interest that an officer, employee or relative has as a recipient of public services when such
services are generally provided by the city on the same terms and conditions to all similarly situated
citizens, regardless of whether such recipient is an officer, employee or relative;
(4) the interest that an officer, employee or relative has as a recipient of a commercially reasonable loan
made in the ordinary course of business by a lending institution, in such lending institution;
(5) the interest that an officer, employee or relative has as a shareholder in a mutual or common
investment fund in the holdings of such fund unless the shareholder actively participates in the
management of such fund;
(6) the interest that an officer, employee or relative has as a policyholder in an insurance company, a
depositor in a duly established savings association or bank, or a similar interest-holder, unless the
discretionary act of such person, as an officer or employee, could immediately, defin itely and measurably
affect the value of such policy, deposit or similar interest;
(7) the interest that an officer, employee or relative has as an owner of government -issued securities
unless the discretionary act of such owner, as an officer or employe e, could immediately, definitely and
measurably affect the value of such securities; or
(8) the interest that an officer or employee has in the compensation received from the city for personal
services provided to the city as an officer or employee.
Personal interest means any interest (other than a financial interest) by reason of which an officer or employee,
or a relative of such officer or employee, would, in the judgment of a reasonably prudent person, realize or
experience some direct and substantial benefit or detriment different in kind from that experienced by the general
public. Personal interest shall not include:
(1) the interest that an officer, employee or relative has as a member of a board, commission, committee,
or authority of another governmental entity or of a nonprofit corporation or association or of an
educational, religious, charitable, fraternal, or civic organization;
(2) the interest that an officer, employee or relative has in the receipt of public services when such
services are generally provided by the city on the same terms and conditions to all similarly situated
citizens; or
December 22, 2020 Page 3
(3) the interest that an officer or employee has in the compensation, benefits, or terms and conditions of
his or her employment with the city.
Ethics Review Process:
The City Code (Section 2-569) establishes an Ethics Review Board to assist Councilmembers and board and
commission members in interpreting and applying the City’s ethics provisions. The functions of the Board are:
(1) To review and investigate complaints of unethical conduct filed against Councilmembers or board and
commission members by any person;
(2) To review and investigate actual or hypothetical situations involving potential conflicts of interest
presented by individual Councilmembers or board and commission members;
(3) After review and investigation, to render advisory opinions or interpretations pertaining to such complaints
or inquiries under the relevant provisions of the Charter and Code and the applicable provisions of state
law, if any, and to make written recommendations to the City Council and any affected board or
commission concerning the same; and
(4) To propose any revisions to the provisions of the Charter or Code or other regulations, rules or policies of
the City pertaining to ethical conduct as the Review Board may deem necessary and appropriate in the
best interests of the City.
The Board consists of three Council-appointed Councilmembers and one alternate member. Complaints are
considered by the Board except that:
➢ If a complaint alleges a violation by two or more members of the Board, an alternate Board comprised of
all unnamed Councilmembers hears the complaint; and
➢ If a complaint names five or more Councilmembers, a seven-member alternate Board selected at random
by the City Clerk from the membership of City boards and commissions hears the complaint.
A violation of a City Charter ethics provision constitutes a criminal misdemeanor and a person convicted of a
misdemeanor is subject to fine or imprisonment or both. Under the Charter an official convicted of a City Charter
violation becomes ineligible for City elected or appointed office or employment for two years.
Other Municipal Ethics Systems:
Other Colorado municipalities handle ethics complaints in a variety of way s. Some simply apply state ethics laws
for local government officials and do not exercise home rule authority on this topic. Other municipalities, like Fort
Collins, implemented standards and procedural guidance in their own municipal charters and codes. (See
Attached Chart). Those that have exercised their home rule authority generally have established ethics
committees or rely on their city attorney or outside counsel and judges to handle complaints.
State Law Ethics Provisions:
Colorado law provides a number of ethics provisions for local government officials, including Colorado Revised
Statutes: Sections 24-18-102 through -105 and Section 24-18-109.
December 22, 2020 Page 4
In addition, in 2006 Colorado voters approved an initiated measure frequently referred to as “Amen dment 41,”
which added Title XXIX to the Colorado Constitution entitled Ethics in Government Amendment (Title XXIX).
To summarize, Title XXIX:
➢ bans public officials including local government officials from receiving gifts and other items of value
regardless of whether the gifts and other items of value are connected with their public duties;
➢ provides that receipt of a thing of value by the spouse or dependent of a local government official is
prohibited in many circumstances unless equal or greater valu e is given in return;
➢ creates as a penalty an amount double the amount of the gift or thing of value which must be paid to the
jurisdiction whose public trust was breached;
➢ creates an Independent Ethics Commission (IEC) to hear and decide on complaints of violations of Title
XXIX by any covered official;
➢ provides that any county or municipality may adopt ordinances or charter provisions with respect to ethics
matters that are more stringent than any of the provisions contained in this article; and
➢ provides that its requirements do not apply to home rule counties or home rule municipalities that have
adopted charters, ordinances, or resolutions that address the matters covered by this article.
Modifying the Charter’s Personal Interest Definition
During recent discussions about ethics complaints, Councilmembers have expressed interest in putting in place
an ethics rule that more clearly establishes the threshold for when employment by a party interested in a City
matter results in a conflict of interest.
The definition of “financial interest” excludes the interest that an officer, employee or relative has as an employee
of a business in a decision, when the decision financially benefits or otherwise affects the employer but entails no
foreseeable, measurable financial benefit to the officer, employee or relative.
The definition of “personal interest” turns on whether the officer or employee, or their relative, would, in the
judgment of a reasonably prudent person, realize or experience some direct and substantial benefit or detriment
different in kind from that experienced by the general public.
Applying the financial interest standard has been more straightforward than applying the personal interest
standard, perhaps because financial interests can be easier to identify and there are so many types of benefits or
detriments that can occur. In order to define more specifically how the interest of an employer gives rise to a
conflict of interest, the simplest approach would be to add clarifying language to the personal interest definition.
Because these definitions are in the Charter, proposing a Charter amendment for voter approval would be the
mechanism for making such a change.
This provision could be revised to make clear that a City official has a personal interest when that official is a
direct employee of an entity or person that has a financial interest in a decision, or when the employer will
experience from that decision a direct and substantial benefit or detriment different in kind from that experienced
by the general public. Consistent with state ethics laws, such a provision may also need to include any person or
organization with which the official is negotiating or has an arrangement concerning prospective employment.
December 22, 2020 Page 5
Some jurisdictions impute any financial or personal interest of an employer to the city official as though it were
their own interest. These approaches would result in a relatively broad application of the personal interest
standard.
Alternatively, the official could be defined to have a personal interest only when the employer (or prospective
employer) has a financial interest in the City decision. Either approach would impute the interests of the external
employer to the City official, but to different degrees.
Other distinctions that Council may want to consider in defining what constitutes a personal interest include:
➢ The size of the employer;
➢ The type of the employer (for-profit, not-for-profit, governmental);
➢ The number of organizational layers between the City official and the governing body, chief executive
officer, president or owner of the entity that employs the official;
➢ Whether the official’s position is compensated or uncompensated;
➢ Whether it is practical for the City official to maintain confidentiality of C ity confidential information from
their employer in the decision-making process; and
➢ Whether the City official’s participation in the City decision will present conflicting loyalties for the City
official.
If Council is ready to move forward with a Charter amendment proposal for the April 2021 regular municipal
election, an ordinance submitting an amendment based on the discussion at the Work Session will be included on
the January 5, 2021, Council agenda in order to allow for timely completion of the submitting ordinance.
Modifying the Process for Considering Complaints Against Councilmembers
To address concern about Councilmembers hearing ethics complaints against their Council colleagues and
provide more separation from the Council for that decision, the Council could amend the Code to use an alternate
Ethics Review Board formed by randomly selecting seven board and commission members to hear them. The
random selection from a large pool of potential Board members would reduce the appearance of Council
influence over the composition of the Board and outcome of the Board’s review. Under the current provision,
those selected by the City Clerk may decline to participate. The opinion of the alternate Board is not presented to
Council for adoption.
The Ethics Review Board was established through Ordinance No. 112, 1989. The alternate Ethics Review Board
was added to the Code in 1993 with the adoption of Ordinance No. 17, 1993. The alternate Ethics Review Board
provisions were updated in 2002, through the a doption of Ordinance No. 110, 2002. A Code change to expand
the use of this form of alternative Ethics Review Board would build on the existing Code language and this
change in the process would likely have relatively low-cost impacts.
Other means of appointing an alternative ethics review body could include:
➢ Council appointment of community members to serve as the ethics review body;
December 22, 2020 Page 6
➢ Council appointment of a committee that would in turn appoint members of an alternate ethics review
body to hear complaints filed against Councilmembers. The members of either body could be City officials
or employees or members of the public. Some examples of this approach require that at least some
members of the ethics review body have ethics or legal expertise or former judicial experience;
➢ Retention of the services of an independent judicial officer to serve as the decisionmaker on complaints
filed against Councilmembers; and
➢ Use of intergovernmental arrangements to use officials and judges from other municipalities to review and
decide complaints filed against Councilmembers.
Each of these approaches offers varying benefits and disadvantages that Council would likely want to explore
more fully prior to moving forward with a revision to the process. The costs and administrative burdens of these
more significantly different approaches have not been assessed and if Council is interested in pursuing these
options more research and information gathering would be needed. While it is difficult to predict the number and
frequency of ethics complaints against Councilmembers, the number of ethics opinions stemming from complaints
(whether against one or more Councilmembers or board or commission members) has been relatively low,
totaling roughly one every ten years. The vast majority of ethics opinions have been advisory opinions
responding to requests for guidance rather than decisions to address complaints.
Next Steps:
Based on the concerns and interests identified during the Work Session discussion, if Councilmembers are
generally ready to move forward with a Charter amendment proposal for the April 2021 regular municipal election,
an ordinance submitting an amendment reflecting the approach discussed at the Work Session will be included
on the January 5, 2021, Council agenda in order to allow for timely completion of the submitting ordinance.
Code changes to provide for the use of an alternate Ethics Review Board for all ethics complaints against
Councilmembers can come forward at any time and will be scheduled for Counc il consideration if the Work
Session discussion suggests that Councilmembers are ready to move forward with such a change.
ATTACHMENTS
1. Colorado Municipalities Ethics Processes (PDF)
2. Powerpoint presentation (PDF)
December 16, 2020
1
Colorado Municipalities Ethics Processes
Municipality 2020 Notes Link(s)
Alamosa ADOPTED Ethics Code,
Mayor decides ethics
violations
Process calls for City
council to address it if
possible, then referred to
Mayor
https://cityofalamosa.org/
wp-
content/uploads/2020/02
/2020-City-Council-Policy-
Manual.pdf
Aurora ADOPTED Ethics Code,
Municipal Court decides
ethics violations
There is a panel of three
retired judges to review
complaints
https://library.municode.c
om/co/aurora/codes/cod
e_of_ordinances?nodeId=
PTIICOOR_CH1GEPR_ARTI
ICOET
Avon ADOPTED Municipal
Ethics Code, AND
City/Town Council
handles Ethics
Enforcement
Council is responsible for
enforcement, city
attorney may investigate
https://library.municode.c
om/co/avon/codes/home
_rule_charter_and_code?
nodeId=CD_TIT2ADPE_CH
2.30TOCOET
Denver ADOPTED Municipal
Ethics Code, Nomination
Committee appointed to
select Ethics board, which
handles Ethics
Enforcement
Ethics board appointed by
nomination committee
screens complaints and
has authority to consider
in confidence and dismiss
if unwarranted.
https://library.municode.c
om/co/denver/codes/cod
e_of_ordinances?nodeId=
TITIIREMUCO_CH2AD_AR
TIVCOET_S2-52DE
Durango ADOPTED Municipal
Ethics Code, AND
Municipal Ethics
Enforcement Entity
Board of Ethics
comprised of five Council-
appointed community
members
https://library.municode.c
om/co/durango/ordinanc
es/code_of_ordinances?n
odeId=859798
Edgewater ADOPTED Municipal
Ethics Code, BUT NO
Municipal Ethics
Enforcement Entity
Violation is criminal
misdemeanor under
Charter.
https://library.municode.c
om/co/edgewater/codes/
municipal_code?nodeId=
HORUCHCOEDCO_EDHOR
UCH_ARTVIICOET
ATTACHMENT 1
December 16, 2020
2
Frisco ADOPTED Municipal
Ethics Code, AND
City/Town Council
handles Ethics
Enforcement
“As appropriate,” the
Town Attorney may refer
a case to the Town
Manager instead of the
Town Council
https://www.friscogov.co
m/wp-
content/uploads/2017/08
/15-Code-Of-Ethics.pdf
Hayden ADOPTED Ethics Code,
City/Town Attorney
serves as Municipal Ethics
Enforcement Entity
Town Prosecutor
empowered to bring a civil
action or proceeding at
law or in equity for a
judgment enjoining any
violation of the provisions
of the Code of Ethics
https://library.municode.c
om/co/windsor/codes/ch
arter_and_municipal_cod
e?nodeId=TOWIHORUCH_
ARTVCOET
Lone Tree ADOPTED Ethics Code,
City/Town Attorney
serves as Municipal Ethics
Enforcement Entity
City Attorney is ethics
officer, if the complaint is
against them then city
council appoints
https://library.municode.c
om/co/lone_tree/codes/
municipal_code?nodeId=C
H2ADPE_ARTVIICOET_S2-
7-30DE
Monte Vista ADOPTED Municipal
Ethics Code, AND
City/Town Council
handles Ethics
Enforcement
City council enforces all
elected/appointed
officials and city manager
enforces employees
https://library.municode.c
om/co/monte_vista/code
s/municipal_code?nodeId
=CH2AD_ART12COET_S2-
12-10DE
Pueblo ADOPTED Municipal
Ethics Code, AND
City/Town Council
handles Ethics
Enforcement
Council President or VP
investigates complaints
against elected officials
https://library.municode.c
om/co/pueblo/codes/cod
e_of_ordinances?nodeId=
TITIAD_CH9COET
Yuma ADOPTED Municipal
Ethics Code, BUT NO
Municipal Ethics
Enforcement Entity
Mayor investigates,
presents to city attorney
and council, city attorney
advises
https://codelibrary.amleg
al.com/codes/yumaco/lat
est/yuma_co/0-0-0-590
ATTACHMENT 1
December 22, 2020Ethics Standards and Review BoardCarrie Daggett, City Attorney ATTACHMENT 2
Questions/Direction Sought1. What feedback do Councilmembers have about possible amendment of the Charter to modify the definition of personal interest to address Councilmember employer interests?2. What direction do Councilmembers have regarding establishing an alternate Ethics Review Board process to hear ethics complaints against Councilmembers?2ATTACHMENT 2
Ethics Review Over the Years• Ethics Complaints:• From 1982 through 2018: 6 Complaints (one every 6 years)• In 2019 and 2020: 9 Complaints (4.5 per year)• Advisory Ethics Opinions:• From 1982 through 2018: 59 Advisory Opinions (.61 per year)• In 2019 and 2020: 3 Advisory Opinions (.67 per year)3ATTACHMENT 2
Ethics Review Over the Years4ATTACHMENT 2
Recent Focus on Employment • Recent high incidence of ethics complaints focused specifically on the interest that a Councilmember has as an employee:• Repeated inquiries about employment with Colorado State University in connection with disputed CSU projects• Councilmembers participating in Ethics Review Board discussion of these complaints expressed interest in Council review of the conflicts of interest standard to evaluate whether change would be beneficial• Personal (not directly financial) interest as the key concern5ATTACHMENT 2
Recent Focus onComplaints Against Councilmembers• Recent high incidence of Ethics Review Board consideration of ethics complaints directed against members of Council• Ethics Review Board composition – all Councilmembers – raised objections and accusations by the public about objectivity• Councilmembers participating in Ethics Review Board discussion of these complaints expressed interest in Council consideration of alternative decisionmaker for complaints against Councilmembers6ATTACHMENT 2
Defining Conflicts of Interest7ATTACHMENT 2
Conflicts of Interest Article IV, Section 9(b)(3) of the City Charter:Requires any officer or employee who has, or whose relative has, a financial or personal interest in any decision of any public body of which he or she is a member or to which he or she makes recommendations, upon discovery to:disclose that interest in the manner described, and refrain from voting on, attempting to influence, or otherwise participating in the decision as an officer or employee.8ATTACHMENT 2
Financial Interest -- Defined•Financial Interest means any interest equated with money or its equivalent. • Several interests are specifically excluded; two examples are:• An interest of an officer/employee/relative as an employee of a business or holder of an ownership interest in a business, when the decision of interest financially benefits or otherwise affects the business but entails no foreseeable, measurable financial benefit to the officer/employee/relative• An interest as a nonsalaried officer or member of a nonprofit corporation or association9ATTACHMENT 2
Personal Interest -- Defined•Personal Interest means any interest (other than a financial interest) of an officer/employee/relative that would, in the judgment of a reasonably prudent person, lead them to realize or experience some direct and substantial benefit or detriment different in kind from that experienced by the general public. • Specifically excluded are:• An interest as a board member of a governmental, nonprofit, educations religious, charitable, fraternal or civic organization • An interest in the receipt of public services on the same terms as all similarly situated citizens • An interest in compensation, benefits or terms of City employment10ATTACHMENT 2
Employer’s Interest as a Personal Interest Defined• Current standard is: “some direct and substantial benefit or detriment different in kind from that experienced by the general public” • If more explicit direction regarding the impact of an employer’s interest is desired, Charter amendment required• Some options for change (if change desired):• Financial or Personal Interest of employer = personal interest of City decisionmaker• Narrow scope of this by considering factors like directness of relationship between employment and employer’s interest in Council decision• Narrow scope of this by type of employer or type of employment11ATTACHMENT 2
Charter Amendment Process• Council must place Charter amendments on the ballot by ordinance to allow publication of notice no less than 60 days before the election • For April 2021 election, Charter amendment ordinances will be presented to Council on first and second reading in January 2021• Council may wish to take more time to develop proposed amendment of conflicts definition prior to submitting to voters• Development of 3 to 4 Charter amendments about other topics for the April election is currently underway12ATTACHMENT 2
Ethics Review Board Structure13ATTACHMENT 2
Ethics Review Board• Formed as a Committee in 1981; added to the City Code in 1989.• Three members of Council and an alternate; generally appointed for two-year terms after each election.• Functions include:• Hear complaints of unethical conduct filed against Councilmembers and board and commission members• Review and investigate actual or hypothetical potential conflicts, and render advisory opinions and recommendations• Propose revisions to the Charter or Code or related regulations, rules or policies, pertaining to ethical conduct14ATTACHMENT 2
Alternate Ethics Review BoardIf a complaint alleges a violation by two or more members of the Board (butfewer than five), an alternate Board comprised of all unnamedCouncilmembers hears the complaint; andIf a complaint names five or more Councilmembers, a seven-memberalternate Board selected at random by the City Clerk from the membership ofCity boards and commissions hears the complaint.15ATTACHMENT 2
Alternate Ethics Review Board Options• Current Alternate Board (comprised of randomly selected board/commission members) only for when complaint names five or more Councilmembers • Ethics Review Board and process are in City Code, so ordinance amending Code required to change• Some options for change (if change desired):• Make current Alternate Board apply to all complaints against Councilmembers• Form a standing Council-appointed Board to include community members• Designate judicial or legal expert or panel to investigate and decide complaints16ATTACHMENT 2
Questions/Direction Sought1. What feedback do Councilmembers have about possible amendment of the Charter to modify the definition of personal interest to address Councilmember employer interests?2. What direction do Councilmembers have regarding establishing an alternate Ethics Review Board process to hear ethics complaints against Councilmembers?17ATTACHMENT 2