HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/01/2014 - SECOND READING OF ORDINANCE NO. 047, 2014, APPROVIAgenda Item 13
Item # 13 Page 1
AGENDA ITEM SUMMARY April 1, 2014
City Council
STAFF
Ken Sampley, Stormwater/Floodplain Program Mgr
Jon Haukaas, Water Engr Field Operations Mgr
SUBJECT
Second Reading of Ordinance No. 047, 2014, Approving the Sixth Amendment to the Fort Collins-Timnath
Intergovernmental Agreement Regarding Cooperation on Annexation, Growth Management, and Related
Issues, to Update the Terms of Cost Sharing for Stormwater Improvements in the Boxelder Basin.
EXECUTIVE SUMMARY
This Ordinance, adopted on First Reading on March 18, 2014 by a vote of 4-3 (Nays: Cunniff, Overbeck,
Poppaw), amends the Fort Collins – Timnath Intergovernmental Agreement (IGA) by revising Article 7 to reflect
updated stormwater projects and associated cost sharing.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, March 18, 2014 (w/o attachments) (PDF)
2. Ordinance No. 047, 2014 (PDF)
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Agenda Item 20
Item # 20 Page 2
Middle Boxelder Creek Stream Improvements
Larimer and Weld Crossing Structure.
Construction of the first BBRSA regional stormwater project (Diversion of Coal Creek to Clark Reservoir) was
completed in 2011.
In February 2009, Fort Collins and Timnath entered into an intergovernmental agreement (IGA) regarding
Growth Management Areas (GMAs) for the two communities, associated issues authorizing the disposition of
certain properties, and stormwater and floodplain issues associated with Boxelder Creek and the “Boxelder
Creek Overflow Project.” There have been five (5) amendments to the IGA.
Revisions to the BBRSA’s Stormwater Master Plan and the stormwater provisions of the Fort Collins/Timnath
IGA are necessary in order to address the following considerations:
1. The original proposed location of the East Side Detention Facility (ESDF) could not provide the
required detention and would result in the condemnation of homes. An extensive Siting Study was
initiated in 2010. Ultimately the site adjacent to the existing Gray Lakes Reservoirs was selected as
the best location from flood reduction, cost and constructability perspectives.
2. Locating the ESDF downstream of County Road 52 eliminated the need for the Middle Boxelder
Creek Stream Improvements conceptually identified in the original stormwater master plan.
3. Relocation of the ESDF downstream of County Road 52 results in a reduction in the original
benefits of a reduced (narrower) floodplain and shallower overtopping of County Roads 54 to 60.
The design and construction of County Road 52 Improvements will offset the financial impacts
associated with road and bridge infrastructure costs.
4. The Larimer and Weld Canal Crossing Structure (LWCCS) is needed to safely cross stormwater
runoff over the canal.
5. It was determined that the ESDF could be enlarged in order to reduce downstream flows, allowing
for the potential unblocking of two existing culverts beneath Interstate Highway 25.
6. Timnath entered into an IGA with the BBRSA to financially participate in the design and construction
of the larger ESDF and LWCCS regional stormwater projects.
7. Fort Collins and Timnath agreed to amend their IGA to eliminate the original “Boxelder Creek
Overflow Project” and instead jointly fund, design and construct the Boxelder Outfall Improvements
Project on Boxelder Creek from Interstate Highway 25 downstream to Prospect Road and then to the
Cache La Poudre River.
8. Upon completion of the ESDF, LWCCS, County Road 52 improvements and the unblocking of two
existing culverts on Boxelder Creek beneath Interstate Highway 25, the Boxelder Creek Overflow
100-Year floodplain through Timnath is eliminated.
Accordingly an updated plan for stormwater improvements was developed which consists of one set of
projects to be designed and constructed by the BBRSA and a second set of projects to be funded, designed
and constructed by Fort Collins and Timnath. The two sets of projects are together referred to as the
Boxelder Creek Flood Mitigation Projects and are described below:
BBRSA Projects
(a) East Side Detention Facility (ESDF) -- An 1800 Acre-feet stormwater detention facility to be constructed
on the east side of Interstate 25 adjacent to the Gray Lakes Reservoirs that includes an earthen
embankment between County Road 50 and County Road 52, an un-gated 12’ x 8’ box culvert outfall, a
reinforced spillway, and related appurtenances.
Agenda Item 20
Item # 20 Page 3
(b) Larimer Weld Canal Crossing Structure (LWCCS) -- A defined weir on the south side of the Larimer
Weld Canal at its crossing with Boxelder Creek crossing located approximately one mile south of ESDF
that includes a lowered canal embankment fortified with grouted rip rap and related appurtenances.
(c) County Road 52 Improvements (CR 52 Improvements) -- The installation of four 4’ x 20’ concrete box
culverts under County Road 52, tree removal along the north side of the roadway, grading an area within
the adjacent golf course north of County Road 52 and related appurtenances.
Fort Collins / Timnath Projects
(d) Lake Canal Crossing of Boxelder Creek -- A siphon and associated appurtenances to transport flows in
the Lake Canal beneath Boxelder Creek just west of Interstate Highway 25.
(e) Boxelder Creek Outfall and Prospect Road Improvements -- A side spill weir (split flow channel) and
flood conveyance channel on Boxelder Creek upstream of Prospect Road along with six 12’ x 4’
concrete box culverts beneath Prospect Road west of Interstate Highway 25, associated utility
relocations (i.e. electric, water, wastewater, gas and telecommunications), roadway restoration, and a
flood conveyance channel south of Prospect Road to the Poudre River and associated appurtenances.
(f) Boxelder Creek at Interstate Highway 25 -- Drainageway and channel improvements and grading
adjacent to and upstream (east) of Interstate Highway 25 and the opening of two existing blocked
culverts beneath Interstate Highway 25
A staff update on the BBRSA and associated projects on Boxelder Creek was presented at the January 28,
2014 City Council Work Session.
FINANCIAL / ECONOMIC IMPACTS
In light of the BBRSA Stormwater Master Plan revisions, an update of the estimated Benefit/Cost Ratio of
the regional stormwater projects was completed to confirm the financial benefits. The table below
uses information on damage losses from the 2006 Boxelder Creek Regional Stormwater Master Plan and
compares the losses with the current estimated construction costs for the remaining BBRSA projects (East
SDF, LWCCS, and CR52 Improvements).
1Present Worth Damage Losses Estimated in 2006 Master Plan 10/30/2013
Boxelder Creek Re ach
Potential
Damages
at Existing
Conditions
Potential
Damages after
construction of
ESDF and
LWCCS
Resulting Benefits
(Damage
Reductions
)
Middle Boxelder Creek (CR54 to I25) $ 9,990,993 $ 5,000,000 $ 4,990,993
Boxelder Overflow $ 9,007,028 $ - $ 9,007,028
Lower Boxelder Creek (I25 to Poudre) $ 2,015,535 $ 811,806 $ 1,203,729
Boxelder I 25 Split $ 10,224,807 $ - $
Cooper Slough $ 27,344,409 $ 8,623,624 $
Cache La Poudre Overflow $ 2,311,180 $ 220,493 $ 2,090,687
Totals $ $ 14,655,923 $ 46,238,029
2 Current Construction Cost Estimate (ESDF,
LWCCS& CR 52 Improvements) $
11,700,000
Estimated Benefit/Cost Ratio 3.95
1
Source: T able C-3 Appendices BOXELDER CREEK REGIONAL ST ORM WAT ER M AST ER PLAN October 2006
2
Initial Total Costs to be offs et by Authority Revenue & TDA contributions & Additional Funding from New IGA
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Agenda Item 20
Item # 20 Page 5
Sixth Amendment to the Fort Collins/Timnath IGA
Fort Collins and Timnath agree and acknowledge that it is in the best interest of both parties to work
cooperatively and in coordination with the BBRSA to design and construct projects along Boxelder Creek and
its associated flow paths to mitigate the impacts of flooding for the mutual benefit of the parties as well as the
region. Accordingly, they have agreed to construct the Fort Collins/Timnath projects identified previously in
this memorandum. The total cost of these projects is currently estimated to be $4 million. Fort Collins and
Timnath have agreed to share equally in the costs to complete the projects. As part of this agreement, Fort
Collins will be able to use the remaining funds ($1.75 million) originally placed into escrow as part of the
original IGA towards its share of the project funding. Fort Collins will need to contribute an additional amount
of up to $250,000 to fully fund fifty percent (50%) of the total cost of the Fort Collins/Timnath Projects. The
parties agree that the escrowed funds, together with the additional Fort Collins funds, are intended as a match
to payments by Timnath, or the TDA on behalf of Timnath to complete the projects.
ENVIRONMENTAL IMPACTS
The BBRSA has already received Endangered Act Species (ESA) clearance for its projects and is working with
the U.S. Army Corps of Engineers (USACE) to receive the required 404 Permit. In accordance with the
language in the original Boxelder IGA, the location, size and impacts of any BBRSA or Fort Collins/Timnath
stormwater improvements projects built on or in the vicinity of the Arapaho Bend Natural Area east of Interstate
Highway 25 shall be minimized to the extent reasonably possible and that all construction activities and
improvements shall be sensitive to the natural features of the affected property. Any area impacted by
construction activities shall be restored to pre-construction natural conditions to the extent reasonably possible,
using native vegetation.
As a result of the relocation of the ESDF downstream, the Middle Boxelder Creek improvements were
eliminated, reducing potential impacts on the section of Boxelder Creek from County Roads 48 to 54. As a
result of the replacement of the Boxelder Overflow Project originally identified in the IGA with the proposed
Boxelder Creek Flood Mitigation projects, there will be a reduction in environmental impacts to Boxelder
Creek, including the Arapaho Bend Natural Area. The Boxelder Outfall Project will also complete all
appropriate environmental permitting including the ESA Clearance and USACE 404 Permit.
PUBLIC OUTREACH
Information on the Boxelder Basin Regional Stormwater Authority and progress on its regional projects is
presented monthly at the BBRSA Board of Directors meeting which is held at 4:00 PM the fourth Wednesday
of each month at the Leeper Center, 3800 Wilson Avenue, Wellington, Colorado. The Board Meeting
agendas and minutes along with relevant studies, mapping and other information are available for review at
the following BBRSA website hyperlink: http://www.boxelderauthority.org/. In addition, the BBRSA maintains
a mailing list of parties who have expressed interest in receiving information and regularly distributes Board
Meeting agendas and materials. The BBRSA also publishes and distributes a quarterly newsletter which
provides information and updates on the authority and its programs.
Comprehensive updates on the BBRSA were presented at the recent public meetings listed below:
January 28, 2014 City Council Work Session
February 26, 2014 BBRSA Board of Directors Work Session.
ATTACHMENTS
1. Boxelder Creek Watershed -- Project Map (PDF)
2. Council Work Session Summary, January 28, 2014 (PDF)
3. PowerPoint Presentation (PDF)
- 1 -
ORDINANCE NO. 047, 2014
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING THE SIXTH AMENDMENT TO THE
FORT COLLINS-TIMNATH INTERGOVERNMENTAL AGREEMENT
REGARDING COOPERATION ON ANNEXATION, GROWTH MANAGEMENT,
AND RELATED ISSUES, TO UPDATE THE TERMS OF COST SHARING FOR
STORMWATER IMPROVEMENTS IN THE BOXELDER BASIN
WHEREAS, on February 17, 2009, Timnath and Fort Collins entered into an
intergovernmental agreement relating to annexation, growth management and related issues,
which agreement resolved certain differences that had arisen between the parties regarding a
variety of planning and growth management issues (the “Intergovernmental Agreement”); and
WHEREAS, on March 3, 2010, the parties executed a First Amendment to
Intergovernmental Agreement which extended the periods of time within which Fort Collins was
to amend the Fort Collins Growth Management Area (“FCGMA”) and Timnath was to provide
written notice to Fort Collins of its intent to exercise its option to purchase the Vangbo Property,
as those terms are defined in the Intergovernmental Agreement; and
WHEREAS, on February 2, 2011, the parties executed a Second Amendment to
Intergovernmental Agreement, which extended the period of time within which Fort Collins was
to amend the FCGMA; and
WHEREAS, on February 21, 2012, the parties executed a Third Amendment to
Intergovernmental Agreement, which extended until February 12, 2013, the period of time
within which both parties will amend the boundaries of their growth management areas; and
WHEREAS, the parties have determined that development of the Boxelder Overflow
Project originally contemplated by Timnath as described in the Intergovernmental Agreement
would be neither feasible nor desirable, and have further identified a mutually beneficial
alternative approach to address flood impacts in the Boxelder Creek Basin as it impacts Timnath
and Fort Collins, referred to as the Boxelder Creek Flood Mitigation Projects; and
WHEREAS, on November 13, 2012, the parties executed a Fourth Amendment to
Intergovernmental Agreement to move forward cooperatively to further investigate, conceptually
plan and preliminarily design the Boxelder Creek Flood Mitigation Projects in coordination with
the Boxelder Basin Regional Stormwater Authority (BBRSA), and the parties agreed to the use
of a portion of the funds previously paid into an escrow account by Fort Collins in accordance
with Article 7 of the Intergovernmental Agreement to match $250,000 in funding from Timnath
for related planning and design; and
WHEREAS, on February 5, 2013, the parties executed a Fifth Amendment to
Intergovernmental Agreement, which extended the period of time within which both parties will
amend the boundaries of their growth management areas; and
- 2 -
WHEREAS, since the date of the Fourth Amendment, the parties have provided a total of
$500,000 in funds for design and engineering work for identified project components to be
carried out under the direction of BBRSA, in accordance with the terms of the Fourth
Amendment; and
WHEREAS, in light of the design and engineering work so completed, and the ongoing
discussion and consideration of options for mutually beneficial stormwater management
approaches related to the mutual purposes of the parties, the parties have now identified updated
projects of mutual benefit and have developed an agreed-upon approach to the completion of
additional improvements; and
WHEREAS, accordingly, the parties have negotiated a Sixth Amendment to the
Intergovernmental Agreement Regarding Cooperation on Annexation, Growth Management and
Related Issues, attached hereto as Exhibit “A”, and incorporated herein by this reference (the
“Sixth Amendment”) so as to clarify and document their intentions and mutual rights and
responsibilities with respect to the Boxelder Creek Flood Mitigation Projects; and
WHEREAS, pursuant to C.R.S. §29-1-203(1), the City and Timnath are authorized to
cooperate or contract with one another to provide any function, service or facility lawfully
authorized to each of them; and
WHEREAS, Article II, Section 16 of the Charter of the City of Fort Collins additionally
provides that the City Council may, by resolution or ordinance, enter into contracts with other
governmental bodies to furnish governmental services and make charges for such services, or
enter into cooperative or joint activities with other governmental bodies; and
WHEREAS, in light of the benefits to the City of the work to be completed pursuant to
the Sixth Amendment, the City Council desires to authorize the signing and implementation of
said Amendment.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby finds and determines that the cooperative
funding of the Boxelder Creek Flood Mitigation Projects as described in the Sixth Amendment
will benefit and advance the interests of the City Stormwater Utility and City Stormwater
ratepayers.
Section 2. That the Mayor is hereby authorized to enter into the Sixth Amendment in
substantially the form attached hereto as Exhibit “A”, with such additional terms and conditions
as the City Manager, in consultation with the City Attorney, determines to be necessary and
appropriate to protect the interests of the City or effectuate the purposes of this Ordinance.
- 3 -
Introduced, considered favorably on first reading, and ordered published this 18th day of
March, A.D. 2014, and to be presented for final passage on the 1st day of April, A.D. 2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 1st day of April, A.D. 2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Page 1 of 9
SIXTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
(Regarding Cooperation on Annexation, Growth Management and Related Issues)
THIS SIXTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
(“Amendment”) is made and entered into this ____ day of March, 2014, by and between THE
TOWN OF TIMNATH, COLORADO, a Colorado home rule town (hereinafter referred to as
“Timnath”), and THE CITY OF FORT COLLINS, COLORADO, a Colorado home rule
municipal corporation (hereinafter referred to as “Fort Collins”).
RECITALS
WHEREAS, on February 17, 2009, Timnath and Fort Collins entered into an
intergovernmental agreement relating to annexation, growth management and related issues,
which agreement resolved certain differences that had arisen between the parties regarding a
variety of planning and growth management issues (the “Intergovernmental Agreement”); and
WHEREAS, on March 3, 2010, the parties executed a First Amendment to
Intergovernmental Agreement which extended the periods of time within which Fort Collins was
to amend the Fort Collins Growth Management Area(“FCGMA”) and Timnath was to provide
written notice to Fort Collins of its intent to exercise its option to purchase the Vangbo Property,
as those terms are defined in the Intergovernmental Agreement; and
WHEREAS, on February 2, 2011, the parties executed a Second Amendment to
Intergovernmental Agreement, which extended the period of time within which Fort Collins was
to amend the FCGMA; and
WHEREAS, on February 21, 2012, the parties executed a Third Amendment to
Intergovernmental Agreement, which extended until February 12, 2013, the period of time
within which both parties will amend the boundaries of their growth management areas; and
WHEREAS, the parties have determined that development of the Boxelder Overflow
Project originally contemplated by Timnath as described in the Intergovernmental Agreement
would be neither feasible nor desirable, and have further identified a mutually beneficial
alternative approach to address flood impacts in the Boxelder Creek Basin as it impacts Timnath
and Fort Collins, referred to as the Boxelder Creek Flood Mitigation Projects; and
WHEREAS, on November 13, 2012, the parties executed a Fourth Amendment to
Intergovernmental Agreement to move forward cooperatively to further investigate, conceptually
plan and preliminarily design the Boxelder Creek Flood Mitigation Projects in coordination with
the Boxelder Basin Regional Stormwater Authority (BBRSA), and the parties agreed to the use
EXHIBIT A
Page 2 of 9
of a portion of the funds previously paid into an escrow account by Fort Collins in accordance
with Article 7 of the Intergovernmental Agreement to match $250,000 in funding from Timnath
for related planning and design; and
WHEREAS, on February 5, 2013, the parties executed a Fifth Amendment to
Intergovernmental Agreement, which extended the period of time within which both parties will
amend the boundaries of their growth management areas; and
WHEREAS, since the date of the Fourth Amendment, the parties have provided a total
of $500,000 in funds for design and engineering work for identified project components to be
carried out under the direction of BBRSA, in accordance with the terms of the Fourth
Amendment; and
WHEREAS, in light of the design and engineering work so completed, and the ongoing
discussion and consideration of options for mutually beneficial stormwater management
approaches related to the mutual purposes of the parties, the parties have now identified updated
projects of mutual benefit and have developed an agreed-upon approach to the completion of
additional improvements; and
WHEREAS, accordingly, the parties are entering into this Sixth Amendment to
Intergovernmental Agreement so as to clarify and document their intentions and mutual rights
and responsibilities with respect to the Boxelder Creek Flood Mitigation Projects.
NOW, THEREFORE, in consideration of the mutual promises of the parties and other
good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree as follows:
1. Article 7 Superseded and Replaced. Article 7 of the Intergovernmental Agreement, as
adopted in the Fourth Amendment, is hereby deleted and replaced in its entirety with the
following:
ARTICLE 7
BOXELDER CREEK FLOOD MITIGATION PROJECTS
7.1 Escrowed Funds. As originally agreed by the parties, Fort Collins paid the total
amount of Two Million Dollars ($2,000,000) into escrow in specified installments, originally
intended for use for reimbursement of Timnath for up to fifty percent of Timnath’s incurred costs
in the design, engineering, right-of-way acquisition and construction of the Boxelder Overflow
Project. Funds in the amount of Two Hundred and Fifty Thousand Dollars ($250,000) have been
withdrawn from escrow and applied by the parties to certain purposes consistent with and as
described in the Fourth Amendment. Remaining funds in the amount of One Million Seven
Hundred and Fifty Dollars ($1,750,000) (the “Escrowed Funds”) shall be available to the parties
for use in accordance with and as set forth in this Article.
Page 3 of 9
7.2 Boxelder Creek Flood Mitigation Projects. The parties agree and hereby
acknowledge that it is in the best interest of both Fort Collins and Timnath to work cooperatively
and in coordination with the BBRSA to design and construct projects along Boxelder Creek and
its associated flow paths to mitigate the impacts of flooding for the mutual benefit of the parties
as well as the region. Accordingly, the parties have developed a general plan for storm drainage
improvements to significantly reduce the 100-Year stormwater runoff within both the Boxelder
Creek Drainage Basin and the Cooper Slough Drainage Basin that contribute to the flooding
potential in Boxelder Creek. The plan consists of one set of projects to be designed and
constructed by the BBRSA and a second set of projects to be funded, designed and constructed
by Fort Collins and Timnath.The two sets of projects are together referred to as the Boxelder
Creek Flood Mitigation Projects, the individual components of which are more fully described
below:
(a) BBRSA Projects. The BBRSA Projects shall include the following:
(1) East Side Detention Facility (“ESDF”): A stormwater detention
facility to be constructed on the east side of Interstate 25 adjacent to the Gray
Lakes Reservoirs that includes an earthen embankment between County Road
50 and County Road 52, an un-gated 12’ x 8’ box culvert outfall, a reinforced
spillway, and related appurtenances;
(2) Larimer Weld Canal Crossing Structure (“LWCCS”): A defined
weir on the south side of the Larimer Weld Canal at its crossing with Boxelder
Creek crossing located approximately one mile south of ESDF that includes a
lowered canal embankment fortified with grouted rip rap and related
appurtenances; and
(3) County Road 52 Improvements: The installation of four 4’ x 20’
concrete box culverts under County Road 52, tree removal along the north
side of the roadway, grading an area within the adjacent golf course north of
County Road 52 and related appurtenances.
(b) Fort Collins/Timnath Projects. The Fort Collins/Timnath Projects shall
include the following:
(1) Lake Canal Crossing of Boxelder Creek: A siphon and associated
appurtenances to transport flows in the Lake Canal beneath Boxelder Creek
just west of Interstate Highway 25;
(2) Boxelder Creek Outfall and Prospect Road Improvements: A side
spill weir (split flow channel) and flood conveyance channel on Boxelder
Creek upstream of Prospect Road along with six 12’ x 4’ concrete box
culverts beneath Prospect Road west of Interstate Highway 25, associated
Page 4 of 9
utility relocations (i.e. electric, water, wastewater, gas and
telecommunications), roadway restoration,and a flood conveyance channel
south of Prospect Road to the Poudre River and associated appurtenances; and
(3) Boxelder Creek at Interstate Highway 25: Drainageway and
channel improvements and grading adjacent to and upstream (east) of
Interstate Highway 25 and the opening of two existing blocked culverts
beneath Interstate Highway 25.
7.3 Cost Sharing. The parties agree and hereby acknowledge that it is in the best
interests of both Fort Collins and Timnath to cooperate in making use of the Escrowed Funds to
match expenditures by Timnath for the design, engineering, and permitting of the Fort
Collins/Timnath Projects, as specified in this Section and consistent with this Article.
(a) The parties agree that Fort Collins shall be entitled to use a portion of the
Escrowed Funds not to exceed Two Hundred Thousand and 00/100th Dollars
($200,000.00) to match a payment by Timnath, or the TDA on behalf of Timnath for
costs that have been or will be incurred by Fort Collins to proceed with the design,
engineering and right-of-way acquisition for the Fort Collins/Timnath Projects described
in Section 7.2(b), as more specifically described in Section 7.5.Escrowed Funds in the
amount of Two Hundred Thousand and 00/100th Dollars ($200,000.00) shall be released
to Fort Collins by the escrow agent upon request for the purposes described in this
Section 7.3(a). Timnath, or the TDA on behalf of Timnath, shall provide funding in the
amount of Two Hundred Thousand and 00/100th Dollars ($200,000.00) to Fort Collins
within ten (10) business days of the release of escrow funds to Fort Collins. The parties
agree to direct the escrow agent managing said funds to disburse said funds in a manner
consistent with this provision. The parties acknowledge that said funds provided by
Timnath are intended to pay fifty percent (50%) of the invoices and payments made by
Fort Collins to carry out the design, engineering and right-of-way acquisition for the Fort
Collins/Timnath Projects. Timnath or the TDA on behalf of Timnath shall be entitled to
review all invoices and other documentation related to said payments in order to verify
the use of funds in accordance with this Article. Timnath acknowledges and agrees that,
should Timnath arrange for performance by the TDA of any Timnath’s obligations
hereunder, Timnath shall continue to be responsible to Fort Collins for full and
satisfactory completion of any of such obligations.
(b) The parties agree that Fort Collins shall be entitled to use a portion of the
Escrowed Funds not to exceed Two Hundred Fifty Thousand and 00/100th Dollars
($250,000.00) to match a payment by Timnath, or the TDA on behalf of Timnath for
costs to be incurred by Fort Collins to proceed with the work necessary to complete the
Lake Canal Crossing of Boxelder Creek described in Section 7.2(b)(1).Escrowed Funds
in the amount of Two Hundred Fifty Thousand and 00/100th Dollars ($250,000.00) shall
be released to Fort Collins by the escrow agent upon request for the purposes described in
Page 5 of 9
this Section 7.3(b). Timnath, or the TDA on behalf of Timnath, shall provide funding in
the amount of Two Hundred Fifty Thousand and 00/100th Dollars ($250,000.00) to Fort
Collins within ten (10) business days of the release of escrow funds to Fort Collins. The
parties agree to direct the escrow agent managing said funds to disburse said funds in a
manner consistent with this provision. The parties acknowledge that said funds provided
by Timnath are intended to pay fifty percent (50%) of the invoices and payments made
by Fort Collins to carry out the work necessary to complete the Lake Canal Crossing of
Boxelder Creek described in Section 7.2(b)(1). Timnath or the TDA on behalf of
Timnath shall be entitled to review all invoices and other documentation related to said
payments in order to verify the use of funds in accordance with this Article. Timnath
acknowledges and agrees that, should Timnath arrange for performance by the TDA of
any Timnath’s obligations hereunder, Timnath shall continue to be responsible to Fort
Collins for full and satisfactory completion of any of such obligations.
(c) The parties agree that Fort Collins shall be entitled to use all
remaining Escrowed Funds, which are expected to total One Million Three
Hundred Thousand and 00/100th Dollars ($1,300,000), along with any previously
released funds under Sections 7.3(b) and 7.3(c) that are remaining and available
after completion of the projects described in Sections 7.3(b) and 7.3(c), to match
payments by Timnath, or the TDA on behalf of Timnath, for costs to be incurred by
Fort Collins in connection with contracts for work to complete the Fort
Collins/Timnath Projects, including any design, engineering, right-of-way
acquisition, or permitting not fully funded through the payments identified in
Section 7.3(a) and 7.3(b), and construction of the Fort Collins/Timnath Projects.
All remaining Escrowed Funds shall be released to Fort Collins by the escrow agent
upon request from Fort Collins at any time after January 1, 2015, to be used for the
purposes described in this Section 7.3(c). The parties agree to direct the escrow agent
managing said funds to disburse said funds in a manner consistent with this provision.
The parties acknowledge that Fort Collins may be required to pay from its own funds an
additional amount of up to Two Hundred and Fifty Thousand and 00/100th Dollars
($250,000) to fully fund fifty percent (50%) of the total cost of the Fort Collins/Timnath
Projects (which total cost is referred to herein as the “Total Project Cost”, and is
currently estimated to be Four Million Dollars ($4,000,000.00)), and further that the
Escrowed Funds, together with such additional Fort Collins funds, are intended as a
match to payments by Timnath, or the TDA on behalf of Timnath on invoices for the
work described in this Section 7.3(c). Timnath, or the TDA on behalf of Timnath, shall
provide funding in the amount of fifty percent (50%) of the Total Project Cost to Fort
Collins within ten (10) business days of the release of escrow funds to Fort Collins under
this Section 7.3(c). Timnath or the TDA on behalf of Timnath shall be entitled to review
all invoices and other documentation related to said contract in order to verify the use of
funds in accordance with this Amendment. Timnath acknowledges and agrees that,
should Timnath arrange for performance by the TDA of any Timnath’s obligations
Page 6 of 9
hereunder, Timnath shall continue to be responsible to Fort Collins for full and
satisfactory completion of any of such obligations.
(d) If the BBRSA Projects described in Section 7.2 (a) are completed prior to
full completion of the Fort Collins/Timnath Projects described in Section 7.2(b),
Timnath, or the TDA on behalf of Timnath, shall place into escrow any unpaid balance of
the total amount of funds needed to pay fifty percent (50%) of the Total Project Cost, or
of the most current estimated total cost to complete the construction of the Fort
Collins/Timnath Projects, pursuant to Section 7.3(e), if higher than the Total Project Cost,
and Fort Collins shall commence the work described in Section 7.2(b)(3). The work
described in Section 7.2(b)(3) shall not be performed until these funds have been placed
in escrow. To the extent not already released pursuant to Section 7.3(a), (b) or (c), these
funds shall be released to Fort Collins by the escrow agent upon request in order to allow
Fort Collins to proceed with the work described in Section 7.2(b). The parties agree to
direct the escrow agent managing said funds to disburse said funds in a manner consistent
with this provision. The parties acknowledge that said funds are intended to be used for
the purposes and in the manner described in the foregoing Section 7.3(c), and are subject
to the same conditions and procedures as provided therein.
(e) In the event that the Total Project Cost exceeds the estimate stated in
Section 7.3(c), Fort Collins agrees to provide Timnath, or the TDA on behalf of
Timnath documentation confirming the need toincrease the estimated amount deemed
to constitute the Total Project Cost. However, the parties agree that any
increase in Total Project Cost in excess of Five Hundred Thousand Dollars
($500,000) shall be subject to mutual approval and agreement by the parties.
Notwithstanding any provision in this Agreement to the contrary, Fort Collins and
Timnath, or the TDA on behalf of Timnath agree that each party shall pay its
own costs in the negotiation and preparationof this Agreement.
7.4 Fort Collins to Provide or Contract for Services. Fort Collins agrees to provide or
contract for the services required to carry out the Fort Collins/Timnath Projects identified in
Section 7.2(b), subject to the conditions and requirements of this Article. Fort Collins shall
maintain appropriate documentation and make any reports, data or design deliverables produced
available to the parties for review and use in connection with the completion of the Fort
Collins/Timnath Projects. Fort Collins shall upon request provide to Timnath work scope and
specifications and pricingdocuments and contracts for work to be completed by Fort Collins
hereunder.
7.5 Design and Engineering of the Projects. Fort Collins is responsible for the
initiation and completion of design engineering as necessary in order to determine actual design
and related costs and to allow said Projects to proceed. This work is intended to allow for the
efficient design and expedited construction schedule. Fort Collins has provided or contracted
for, or will provide or contract for, the following:
Page 7 of 9
(a) Preparation and completion of the conceptual design of the projects to
include hydraulic modeling and collaboration with upstream BBRSA projects, adjacent
potential property development and other current and planned projects near the project
site;
(b) Initiation of Final Design (including appropriate geotechnical
investigations, structural design, flood conveyance and stream design, stability analysis,
stream restoration, utility relocation, and associated items) in order to prepare estimated
costs for final design, real estate acquisition, permitting, engineering and construction;
and,
(c) Project management and coordination to include meetings with
representatives of Fort Collins, Timnath, the BBRSA, United States Army Corps of
Engineers (USACE), the Colorado Water Conservation Board (CWCB), irrigation
companies and adjacent property owners.
7.6 Milestones for the Boxelder Creek Flood Mitigation Projects. The following
are milestones for the completion of the Boxelder Creek Flood Mitigation Projects:
(a) The targeted construction start date for the Lake Canal Crossing of
Boxelder Creek Improvements described in Section 7.2(b)(1) is January 15, 2015.
(b) The targeted construction start date for water main utility relocations
associated with the Boxelder Creek Outfall and Prospect Road Improvements described
in Section 7.2 (b)(2) is March 1, 2015.
(c) The targeted construction start date for the remainder of work associated
with the Boxelder Creek Outfall and Prospect Road Improvements described in Section
7.2(b)(2).is June 1, 2015,
(d) The targeted construction start date for the Boxelder Creek at Interstate
Highway 25 -- Drainageway and channel improvements and grading adjacent to and
upstream (east) of Interstate Highway 25 and the opening of two existing blocked
culverts beneath Interstate Highway 25 is the later of either October 1, 2015, or
completion of the BBRSA Projects described in Section 7.2(a) and payment by Timnath
of funds as required in Section 7.3(d).
7.7 Satisfaction of Obligations. It is the intent of the parties that the performance of
the requirements of this Article 7 fully satisfies any obligation that Fort Collins may have to
Timnath to contribute to the management of storm drainage waters flowing from Boxelder Creek
insofar as such waters or the floodplain related thereto, may affect property within Timnath’s
municipal boundaries or within the TGMA. Accordingly, Timnath has released Fort Collins and
Page 8 of 9
its officers, employees, agents and assigns, from any and all claims or causes of action of any
kind whatsoever for any monetary damages or for any other remedy at law or in equity arising
from, connected with or in any way related to the flow, blockage or diversion of storm waters
from Boxelder Creek, the installation, operation and maintenance of culverts and other storm
water facilities related to that portion of I-25 that is adjacent to the TGMA, or the determination
of rainfall standards for areas within Timnath’s municipal boundaries or the TGMA, insofar as
such claim or cause of action is based upon any acts or omission of Fort Collins or any of its
officers, employees, agents or assigns, on or before the Effective Date.
The parties acknowledge and agree that, in the 1980’s, at Fort Collins’ request, the
Colorado Department of Highways (CDOT) installed two additional box culverts under I-25 at a
location that would, if the culverts were opened, allow a substantially greater volume of storm
runoff to flow from Boxelder Creek under I-25 and into portions of the Fort Collins GMA and
municipal limits and that such increased flows could do considerable damage to property within
such area and that, in order to properly manage and contain such flows, extensive new storm
water facilities must be constructed. Accordingly, both parties agree that no officer, employee,
agent or assign, shall attempt, directly or indirectly, at any time after the execution of this
Agreement, to persuade CDOT to take any action that would reasonably be expected to result in
the opening of said culverts, until such time as the Boxelder Creek Flood Mitigation Projects, or
other stormwater improvements satisfactory to the parties, are complete. In addition, if a third
party takes, or attempts to take, any such action prior to the completion of said projects, Timnath
agrees to support Fort Collins’ opposition to such action by providing a letter to CDOT to that
effect upon the request of Fort Collins.
7.8 No Admission of Liability. Nothing in this Article or elsewhere in this
Agreement shall in any way or manner be construed as an admission of liability by Fort Collins
or its officers or employees for any claim for damages arising from or in any way related to the
lack of construction of the Boxelder Overflow Project, construction of the Boxelder Flood
Mitigation Projects, the overflow of waters from Boxelder Creek, FEMA’s designation of certain
areas within the TGMA as being within a floodplain, or any related matters, nor shall anything
herein be construed as a waiver of any defenses, limitations and immunities established pursuant
to the Colorado Government Immunity Act (SS24-10-101, et seq. C.R.S.), the United States and
Colorado Constitutions, or under the common law or laws of the State of Colorado or of the
United States, including but not limited to Section 42 U.S.C. 1983.
2. No Further Modification. Except as expressly amended by this Amendment, the
Intergovernmental Agreement is unmodified and shall continue in full force and effect.
3. Binding Agreement. Both Timnath and Fort Collins intend that this Amendment shall be
binding upon them.
4 Amendments. This Amendment may only be amended, changed, modified or altered in
writing, signed by both parties hereto.
Page 9 of 9
5. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Colorado.
6. Jointly Drafted; Rules of Construction. The parties hereto agree that this Amendment
was jointly drafted, and, therefore, waive the application of any law, regulation, holding or rule
of construction providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
7. Defined Terms. Capitalized terms used in this Agreement but not otherwise defined
herein shall have the meanings set forth in the Intergovernmental Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
THE TOWN OF TIMNATH, COLORADO
By: ____________________________________
Mayor
ATTEST: APPROVED AS TO FORM:
________________________ ________________________
Town Clerk Town Attorney
THE CITY OF FORT COLLINS, COLORADO
By: ____________________________________
Mayor
ATTEST: APPROVED AS TO FORM:
________________________ ________________________
City Clerk City Attorney
e table shows
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ormwater impr
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# 20 Page 4
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Item #
MARY
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to County Ro
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the Boxelde
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and the Boxe
Sixth Amendm
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the necessa
ounty Road 5
n proceeds a
7 to reflect u
the Resolutio
re miles and
al governmen
a that is trib
Creek floodw
proximately 4
ns that occur
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Year Flood. T
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er Basin Re
t the Boxelde
Ag
March 1
Agreement w
elder Basin R
ment to the F
owth Manage
s in the Boxe
A) between th
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52 Project tha
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updated storm
on
d extends from
nts have wor
butary to Box
waters join the
4,900 acres
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em to become
The communi
ng the flood h
f Fort Collins
egional Stor
er Creek Reg
genda Item
8, 2014
with Larimer C
Regional Storm
Fort Collins-T
ement, and R
lder Basin.
he City and L
the Boxelder
at is over and
d the Fort Co
mwater projec
m just north
rked together
xelder Creek
e Cache La P
of land with
tial for overto
e blocked, th
ties of Fort C
hazards asso
s entered into
mwater Auth
gional Stormw
m 20
County,
mwater
Timnath
Related
Larimer
r Basin
above
ollins –
cts and
of the
r since
k from
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Collins,
ciated
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hority
water
ATTACHMENT 1