HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/18/2014 - ITEMS RELATING TO THE BOXELDER CREEK WATERSHEDAgenda Item 20
Item # 20 Page 1
AGENDA ITEM SUMMARY March 18, 2014
City Council
STAFF
Ken Sampley, Stormwater/Floodplain Program Mgr
SUBJECT
Items Relating to the Boxelder Creek Watershed.
EXECUTIVE SUMMARY
A. Resolution 2014-026 Authorizing the Execution of an Intergovernmental Agreement with Larimer County,
the Timnath Development Authority, the Town of Wellington, and the Boxelder Basin Regional Stormwater
Authority Regarding Improvements to County Road 52.
B. First 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.
The purpose of this item is to approve an Intergovernmental Agreement (IGA) between the City and Larimer
County and the Town of Timnath to share equally in providing the necessary funds to the Boxelder Basin
Regional Stormwater Authority (BBRSA) to pay the cost of the County Road 52 Project that is over and above
the allocated Colorado Water Conservation Board (CWCB) loan proceeds and to amend 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 First Reading and the Resolution
BACKGROUND / DISCUSSION
The Boxelder Creek Watershed encompasses over 265 square miles and extends from just north of the
Wyoming border to the Poudre River on the south. Several local governments have worked together since
2005 to identify ways to mitigate flood hazards within the area that is tributary to Boxelder Creek from
County Road 70 north of Wellington south to where Boxelder Creek floodwaters join the Cache La Poudre
River. The Boxelder Creek 100-Year floodplain impacts approximately 4,900 acres of land within the
regional area. Due to the numerous split flows and diversions that occur, the potential for overtopping
frequently used roads and the probability of the existing conveyance system to become blocked, there is
the potential for loss of life and/or bodily injury during the 100-Year Flood. The communities of Fort Collins,
Wellington, Timnath, and Larimer County all share a common goal in mitigating the flood hazards associated
with Boxelder Creek.
In August 2008, Fort Collins, Larimer County, Wellington and the City of Fort Collins entered into an
intergovernmental agreement (IGA) to establish the Boxelder Basin Regional Stormwater Authority
(BBRSA). The BBRSA was established to fund and implement the Boxelder Creek Regional Stormwater
Master Plan Phase I regional stormwater projects listed below:
Diversion of Coal Creek to Clark Reservoir
Edson (East Side) Detention Reservoir
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).
1
Present 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 $ - $
10,224,80
7
Cooper Slough $ 27,344,409 $ 8,623,624 $
18,720,78
5
Cache La Poudre Overflow $ 2,311,180 $ 220,493 $ 2,090,687
Totals $
60,893,952
$ 14,655,923 $ 46,238,029
2 Current Construction Cost Estimate (ESDF,
LWCCS& CR 52 Improvements)
$
Agenda Item 20
Item # 20 Page 4
Review of the table shows an updated Benefit/Cost Ratio of 3.95. In most instances, a B/C ratio of 1.5 or 2
is considered very good. Such a high B/C ratio is very unusual and demonstrates the dramatic benefits that
construction of the BBRSA projects has with regard to the reduction in damages from a 100-Year flood
event.
Summary – Fort Collins Benefits
There are significant financial benefits and reductions in flood damage to properties located with the City of
Fort Collins and its GMA as shown in the summary table below.
Cooper Slough
The BBRSA regional stormwater projects will eliminate the westerly Boxelder Creek overflow that
extends south along the east side of Interstate Highway 25. The Cooper Slough will benefit by a
dramatic reduction in 100-Year flood flows that currently cross beneath Interstate Highway 25 (I-25) in the
Larimer and Weld Irrigation Canal and spill down the Cooper Slough Drainageway. Fort Collins saves
$11.3 Million in reduced stormwater infrastructure costs on the Cooper Slough.
Boxelder Creek
The BBRSA regional stormwater projects will eliminate the westerly Boxelder Creek overflow that extends
south along the east side of Interstate Highway 25. The ESDF facility will reduce the 100-Year Flood flows
downstream. With Fort Collins and Timnath agreeing to jointly fund and construct improvements near and
upstream of the Boxelder Creek crossing of Prospect Road, the two large box culverts at the crossing of
Interstate 25 (I-25) and Boxelder Creek can be unplugged. As a result, there is an estimated $6 Million
savings for roads within the Fort Collins GMA (County Roads 54, 52, 50, 48 and State Highway 14) and a
$2.1 Million savings for stormwater improvements at Boxelder Creek and Prospect Road.
County Road 52 IGA
The current total cost estimate to construct the ESDF, LWCCS and CR 52 improvements is $11.75 million.
Approximately $9 million of CWCB loans will be used towards the projects. An estimated $1.72 million of
BBRSA funds and Timnath Development Authority (TDA) contributions will be received and applied towards
the total project costs. That leaves a shortfall of $1.03 million. Larimer County, Timnath and Fort Collins all
benefit from the construction of the BBRSA projects and have agreed to share equally in providing the funding
needed to cover the shortfall. To allow for contingencies, the entities have agreed to share equally the
additional costs up to a maximum of $0.5 million each (total of $1.5 million). The County Road 52 IGA (Exhibit
A to Resolution 2014-026) outlines the specific provisions of this agreement.
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)
EAST SIDE DETENTION FACILITY (ESDF) and
COUNTY ROAD 52 IMPROVEMENTS
LARIMER / WELD CANAL CROSSING
STRUCTURE (LWCCS)
BOXELDER CREEK AT I-25
LAKE CANAL CROSSING OF BOXELDER
CREEK
BOXELDER CREEK OUTFALL AND PROPSECT
ROAD IMPROVEMENTS
BOXELDER CREEK WATERSHED -- PROJECT MAP
ATTACHMENT 1
ATTACHMENT 2
1
1
Items Relating to the
Boxelder Creek Watershed
City Council Meeting
March 18, 2014
Kenneth C. Sampley, P.E.
Stormwater and Floodplain Program Manager
City of Fort Collins
2
Executive Summary
The purpose of this item is to approve:
A. County Road 52 Intergovernmental
Agreement (IGA) between the City,
Larimer County and Timnath
B. Sixth Amendment to the Fort Collins -
Timnath Intergovernmental Agreement (IGA)
2
3
BOXELDER
CREEK
WATERSHED
_____
Project Map
4
Boxelder Basin Regional Stormwater Authority
• January 28, 2014 Council Work Session Update
• 2008 Intergovernmental Agreement (IGA)
• Members Fort Collins, Larimer County, and Wellington.
• Timnath is a financial partner (Separate IGA with the BBRSA)
Three remaining projects $11.75 Million
1. East Side Detention Facility (ESDF)
2. Larimer & Weld Canal Crossing Structure (LWCCS)
3. County Road 52 Improvements (CR 52)
• Colorado Water Conservation Board (CWCB) loans
CR 52 IGA Fort Collins / Larimer / Timnath to
share equally in splitting additional costs for
County Road 52 that exceeds CWCB loan funding
BBRSA Background
Three remaining projects $11.75 Million
1. East Side Detention Facility (ESDF)
2. Larimer & Weld Canal Crossing Structure (LWCCS)
3. County Road 52 Improvements (CR 52)
CR 52 IGA Fort Collins / Larimer / Timnath to
share equally in splitting additional costs for
County Road 52 that exceeds CWCB loan funding
3
5
Sources
* City of Fort Collins Selected Plan for Boxelder creek/Cooper Slough, ACE, April 2004
** Boxelder Creek Regional Stormwater Master Plan, PBS&J, October 2006
*** Boxelder Creek Regional Stormwater Master Plan, PBS&J, October 2006
for County Roads 54, 52, 50, 48 and SH 14 (All are with the GMA)
**** Construction cost estimate by Garney, December 2013
City of Fort Collins Benefits
Location City of Fort
Collins Master
Plan Project
Costs – without
ESDF
City of Fort
Collins Master
Plan Project
Costs – with
ESDF
Savings with
ESDF in place
Cooper Slough at
Mulberry
$15,300,000* $4,000,000** $11,300,000
Boxelder Creek at
Prospect Road
$6,100,000** $4,000,000**** $2,100,000
Road Crossing
Improvements on
Boxelder creek
$6,000,000*** $0 $6,000,000
Total $27,400,000 $8,000,000 $19,400,000
6
BBRSA Remaining Projects
4
7
COUNTY ROAD 52 IGA
Key elements are:
a) Est. $1.85M to improve County Road 52
b) Est. cost of ESDF & LWCCS & CR 52 projects
exceeds available funding by approx. $1.029M
c) Larimer County, Fort Collins and TDA will
share equally (up to $0.5M each) to cover
the shortfall.
d) Larimer County will also approve the first
IGA Amendment.
8
• Feb. 17, 2009 Intergovernmental Agreement (IGA)
– Growth Management Areas (GMAs)
– Disposition of certain properties
– Boxelder Creek Floodplain Issues
• Nov. 13, 2012 – BBRSA / Timnath IGA
– Timnath (TDA) to contribute financially to BBRSA projects
• Nov. 13, 2012 -- 4th
Amendment to IGA
– Revised Boxelder Creek Provisions and related funding
Fort Collins / Timnath Background
Sixth Amendment to Fort Collins / Timnath IGA
Fort Collins and Timnath agree to jointly eliminate the
original Boxelder Creek Overflow Project and jointly
fund, design and construct the Fort Collins/Timnath
Boxelder Creek Projects
5
9
Lake Canal Crossing of Boxelder Creek
A siphon and related appurtenances to transport flows in the Lake
Canal beneath Boxelder Creek just west of Interstate Highway 25.
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, six 12’ x 4’ concrete box
culverts beneath Prospect Road, and a flood conveyance channel
south of Prospect Road to the Poudre.
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
Fort Collins / Timnath Projects
10
Fort Collins Financial Benefits
• Fort Collins saves approximately $4.1 Million:
• $2.1 Million savings in total estimated project
costs (from $6.1 Million to $4 Million).
• $2.0 Million savings as a result of 50/50 cost
share of project costs
• $1.75 Million of City’s share will be freed-up escrow
funds
Fort Collins / Timnath Projects
6
11
SUMMARY
The purpose of this item is to approve:
A. County Road 52 Intergovernmental
Agreement (IGA) between the City,
Larimer County and Timnath
B. Sixth Amendment to the Fort Collins -
Timnath Intergovernmental Agreement (IGA)
- 1 -
RESOLUTION 2014-026
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT
WITH LARIMER COUNTY, THE TIMNATH DEVELOPMENT AUTHORITY,
THE TOWN OF WELLINGTON, AND THE BOXELDER BASIN REGIONAL
STORMWATER AUTHORITY REGARDING IMPROVEMENTS TO COUNTY ROAD 52
WHEREAS, on July 15, 2008, the City Council approved Resolution 2008-068,
authorizing an intergovernmental agreement with Larimer County and the Town of Wellington
to form the Boxelder Basin Regional Stormwater Authority (the “Authority”), to fund and
implement the regional stormwater improvements outlined in the Boxelder Regional Stormwater
Master Plan (the “Master Plan”); and
WHEREAS, on August 20, 2008, the intergovernmental agreement to form the Authority
(the “Agreement”) was finalized and signed by all parties, and the administration of the
Authority was subsequently organized; and
WHEREAS, since its organization, the Authority has completed the design and
construction of the Coal Creek Flood Mitigation Project and has preliminarily designed the two
remaining regional stormwater projects contemplated in the Master Plan; and
WHEREAS, the members of the Authority have negotiated a First Amendment to the
Agreement in order to move forward with the remaining projects, obtain related loans from the
Colorado Water Conservation Board (“CWCB”), to be repaid with Authority stormwater fees
collected from within the Authority’s service area, and update other provisions of the
Agreement; and
WHEREAS, the City Council has authorized the Mayor to sign the First Amendment to
the Agreement by its adoption of Resolution 2013-049 on May 21, 2013; and
WHEREAS, the Town Board of Wellington has also approved the First Amendment; and
WHEREAS, in light of certain concerns identified by Larimer County related to the
improvements to be constructed by the Authority, the City, Larimer County, the Timnath
Development Authority, the Town of Wellington and the Authority (collectively the “Parties”)
have negotiated an intergovernmental agreement providing for shared funding of the costs of
certain improvements to County Road 52, as set forth in the Intergovernmental Agreement for
the Larimer County Road 52 Project (the “County Road 52 Agreement”); and
WHEREAS, pursuant to C.R.S. §29-1-203(1), the Parties 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
- 2 -
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 First Amendment to the Agreement and the County Road 52 Agreement, the City Council
desires to authorize the signing and implementation of said County Road 52 Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby finds that the approval of the County Road
52 Agreement is in the best interests of the City in order to facilitate the completion of the
Master Plan improvements and provide for the fulfillment by the Authority of its intended
purposes and objectives for stormwater improvements in the Boxelder Basin.
Section 2. That the City Council hereby approves the County Road 52 Agreement
and authorizes and directs the Mayor to execute the County Road 52 Agreement on behalf of the
City in substantially the form attached hereto as Exhibit “A,” together with such additional or
modified 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 and advance the
purposes set forth in this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
18th day of March, A.D. 2014.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Page 1 of 12
INTERGOVERNMENTAL AGREEMENT
FOR THE LARIMER COUNTY ROAD 52 PROJECT
THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is effective this
____ day of ________, 2014, by and among the BOARD OF COMMISSIONERS OF
LARIMER COUNTY, COLORADO, (hereinafter referred to as the “County”), the CITY OF
FORT COLLINS, COLORADO, a municipal corporation (hereinafter referred to as the “City”),
the TIMNATH DEVELOPMENT AUTHORITY, COLORADO, an urban renewal authority
(hereinafter referred to as the “TDA”), the TOWN OF WELLINGTON, COLORADO, a
municipal corporation (hereinafter referred to as “Wellington”) and the BOXELDER BASIN
REGIONAL STORMWATER AUTHORITY, a Colorado regional stormwater authority
(hereinafter referred to as the “Authority”), (collectively hereinafter referred to as the “Parties”).
RECITALS
WHEREAS, the Authority, pursuant to its responsibilities set forth in the
Intergovernmental Agreement for Stormwater Cooperation and Management dated August 20,
2008, among the County, the City, and Wellington, has developed a plan for stormwater
improvement facilities to significantly reduce the 100 year stormwater runoff within the
Boxelder Creek Drainage Basin which are the East Side Detention Facility (hereinafter referred
to as the “ESDF”), and the Larimer and Weld Canal Crossing Structure (hereinafter referred to as
the “LWCCS”), (hereinafter collectively referred to as the “two Projects”); and
WHEREAS, the Authority and the TDA entered into an Intergovernmental Agreement
Regarding Cost Sharing for Boxelder Basin Stormwater Mitigation Improvements effective
November 15, 2012, which provided that the TDA is responsible for a share of the costs of the
two Projects; and
WHEREAS, the Authority has done preliminary design for certain improvements to
address stormwater flows over Larimer County Road 52 (“Road 52”), due to the siting of the
ESDF south of Road 52 (the “County Road 52 Project”); and
WHEREAS, the County, the City, and the TDA (hereinafter collectively referred to as
the “Participating Entities”), have determined that it is appropriate for the Participating Entities
to share a portion of the costs of the County Road 52 Project; and
WHEREAS, the current estimated cost of the ESDF is $8,761,000; and
WHEREAS, the current estimated cost of the LWCCS is $1,139,000; and
WHEREAS, the Authority has received approval for loans with the Colorado Water
Conservation Board (“CWCB”) totaling $8,181,000, ($8,100,000 for ESDF and LWCCS and
$81,000 for the CWCB’s 1% loan service fee), the proceeds of which will be used to finance a
portion of the costs of the ESDF and the LWCCS; and
Page 2 of 12
WHEREAS, the Authority and TDA will contribute revenue and participating funds
during the design and construction of ESDF and LWCCS such that the final total loan principal
from both loans for the ESDF and LWCCS is estimated at $8,181,000, ($8,100,000 for ESDF
and LWCCS and $81,000 for the CWCB’s 1% loan service fee); and
WHEREAS, the Authority has determined, through preliminary design, that the
estimated cost of the County Road 52 Project is $1,848,274; and
WHEREAS, on January 27, 2014, the Authority received approval from the CWCB for a
third loan in the amount not to exceed $818,100, ($810,000 for the County Road 52 project and
$8,100 for CWCB’s 1% loan service fee); and
WHEREAS, the total proceeds from the CWCB loans shall be allocated $7,100,000 to
the ESDF, $1,000,0000 to LWCCS, and $810,000 to the County Road 52 Project, with $$89,100
payable to the CWCB as a 1% loan origination fee for a total CWCB loan of up to $8,999,100;
and
WHEREAS, the Participating Entities have agreed to share equally in providing the
necessary funds to the Authority to pay the cost of the County Road 52 Project over and above
the $$818,100 ($810,000 for the County Road 52 project and $8,100 for CWCB’s 1% loan
service fee) of the CWCB loan proceeds allocated to the County Road 52 Project; and
WHEREAS, the Parties wish to set forth the terms and conditions of the payment of the
Additional Funding for the County Road 52 Project pursuant to the terms and conditions of this
Agreement; and
WHEREAS, the Participating Entities and the Authority have agreed that Wellington, a
Member of the Authority, shall not be responsible for the payment of the Additional Funding;
and
WHEREAS, the City, the County, and Wellington are parties to that certain
Intergovernmental Agreement for Stormwater Cooperation and Management dated August 20,
2008 (the “Authority Agreement”), and the City and Wellington have approved and executed the
First Amendment to Intergovernmental Agreement for Stormwater Cooperation and
Management (the “First Amendment”); however, the County has not approved and executed the
First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
the above recitals which are incorporated herein, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
Page 3 of 12
ARTICLE I
DEFINITIONS
Definitions. In this Agreement, capitalized terms not otherwise defined shall have the
meanings respectively assigned thereto in the Recitals to this Agreement or as provided in this
Section 1, unless the context clearly requires a different meaning:
“Members” shall mean the entities referred to as Members in the
Intergovernmental Agreement for Stormwater Cooperation and Management
dated August 20, 2008.
“Participating Entities” shall mean the County, the City, and the TDA.
“Boxelder Basin Regional Stormwater Authority” or “Authority” shall mean the
regional stormwater authority formed by agreement of the Board of
Commissioners of Larimer County, Colorado, City of Fort Collins, Colorado, and
the Town of Wellington, Colorado pursuant to the Authority Agreement.
“East Side Detention Facility” or “ESDF” shall mean that particular stormwater
detention facility consisting of an earthen embankment (dam), an outlet, and
spillway meeting State Engineer requirements to create detention and storage
upstream of Larimer County Road 50, and south of County Road 52 and the work
required to design, engineer, and construct the same, as described in the First
Amendment.
“Larimer and Weld Canal Crossing Structure” or “LWCCS” shall mean
construction of the side spill weir crossing of the Larimer and Weld Canal to
allow Boxelder Creek storm runoff to continue downstream, as described in the
First Amendment.
“County Road 52 Project” shall mean the improvements to County Road 52 and
surrounding area to address estimated overtopping of County Road 52 due to a
100-year stormwater event as more fully described on “Exhibit A” and depicted
on “Exhibit B” to this Agreement, attached hereto and incorporated herein by
reference.
“Additional Funding” shall mean the remaining cost to the Authority of the
County Road 52 Project in excess of the CWCB loan allocation of $818,100
($810,000 for the County Road 52 project and $8,100 for CWCB’s 1% loan
service fee) attributable to the cost of the County Road 52 Project. This excess
cost is currently estimated to be $1,038,274 and shall not exceed $1,500,000.
Page 4 of 12
ARTICLE 2
COUNTY ROAD 52 PROJECT
2.1 County Road 52 Project. The Parties agree and hereby acknowledge that it is in
the best interest of the Parties to work cooperatively to fund the design and construction of the
County Road 52 Project as set forth in this Agreement.
2.2 Design Engineering. The Authority has conducted preliminary design
engineering for the County Road 52 Project. The Authority shall proceed to final design of the
County Road 52 Project.
2.3 CWCB Financing. The Parties ratify the application and award of the $818,100
($810,000 for the County Road 52 project and $8,100 for CWCB’s 1% loan service fee) loan
from the CWCB to provide partial funding for the County Road 52 Project.
2.4 Additional Funding. The Participating Entities agree to each pay one-third (1/3)
of the Additional Funding not to exceed a maximum contribution by each of $500,000. The
Participating Entities and the Authority agree that Wellington shall have no responsibility to pay
any portion of the Additional Funding. The Authority shall invoice each individual Participating
Entity for its share of Additional Funding. Payments under this Agreement shall be due within
45 days of receipt of an invoice by the Participating Entity.
2.5 Pledged Revenues. The Authority intends to pledge the funds received from the
Participating Entities pursuant to Section 2.4 above as collateral for the partial repayment of the
CWCB loan. The Participating Entities agree to approve and execute any documents required by
the Colorado Water Conservation Board for said funds to be used as collateral for partial
repayment of the loan and to comply with all requirements of the CWCB, including execution of
any security interest agreement associated with such funds, as may be required, provided that any
such documents shall be consistent with the terms of this Agreement and the Authority
Agreement as amended.
2.6 County Road 52 Project Accounting. The Authority shall account separately for
all costs of the County Road 52 Project beginning November 1, 2013, through completion of the
County Road 52 Project for the accurate determination of the Additional Funding amount.
2.7 Redistribution of Borrowed Funds. If, at the time of finalization of the amount of
the CWCB funding for the ESDF and LWCCS Projects is less than the allocated amount of
$7,100,000 to the ESDF and $1,000,000 to LWCCS, the Parties agree that the remaining amount
of loan proceeds above said allocation shall be used by the Authority, subject to approval of the
CWCB Board, to reduce the amount of the Additional Funding.
2.8 ESDF and LWCCS Excess Costs. The Participating Entities and Wellington
agree that to the extent the actual combined costs for the ESDF and LWCCS exceed $9,000,000,
Wellington will pay its share of the additional costs pursuant to the terms of the
Page 5 of 12
Intergovernmental Agreement Regarding Cost Sharing for Boxelder Basin Stormwater
Mitigation Improvements.
ARTICLE 3
TARGETED TIMELINE
Attached hereto as “Exhibit C” and incorporated herein by this reference, is the
anticipated timeline for completion of the various components of the ESDF, the LWCCS, and the
County Road 52 Project. The parties understand and agree that completion of the individual
components of the timeline are subject to change, including extension thereof, due to factors
beyond the control of and unforeseen by the parties at this time. Unforeseen factors include, but
are not limited to:
(a) unforeseeable design and/or engineering factors, which are not caused by acts or
omissions of the Authority, and which delay the ability of the Authority to design and
engineer the Projects or any portion thereof;
(b) unforeseeable regulatory issues, which are not caused by acts or omissions of the
Authority, with any federal, state or local government agency having jurisdiction over
the Projects or any part thereof, including, but not limited to, 404 permit, State
Engineers approval and FEMA approval of CLOMR;
(c) unforeseeable cause(s) beyond the control of the Authority including, but not limited
to, acts of God, national emergencies, or other incidents beyond the control and not
due to the fault of the Authority; and
(d) unforeseeable issues in the acquisition of appropriate land, easements, and/or right-of-
ways to allow the Authority to construct the Projects which are not caused by acts or
omissions of the Authority.
ARTICLE 4
CONTINGENCY
The obligation of the Authority to finalize the design and construct the County Road 52
Project shall be specifically contingent upon the execution of the First Amendment to
Intergovernmental Agreement for Stormwater Cooperation and Management by Larimer County.
Page 6 of 12
ARTICLE 5
MISCELLANEOUS PROVISIONS
5.1. Amendments. This Agreement may only be amended, changed, modified or
altered in writing, signed by all parties hereto.
5.2. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
5.3. Jointly Drafted; Rules of Construction. The parties hereto agree that this
Agreement 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.
5.4. Defined Terms. Capitalized terms used in this Agreement but not otherwise
defined herein shall have the meanings set forth in the Master Plan.
[The Remainder of Page Intentionally Left Blank. Signature Page Follows]
Page 7 of 12
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
CITY OF FORT COLLINS
By: ______________________________
Karen Weitkunat, Mayor
ATTEST:
________________________
City Clerk
BOARD OF COUNTY
COMMISSIONERS
LARIMER COUNTY, COLORADO
By: ______________________________
Chairman
ATTEST:
________________________
Clerk, Board of Commissioners
Page 8 of 12
THE TIMNATH DEVELOPMENT AUTHORITY
By: ______________________________
Chairperson, Board of
Commissioners
ATTEST:
________________________
Clerk, Board of Commissioners
THE TOWN OF WELLINGTON
By: ______________________________
Mayor
ATTEST:
________________________
Town Clerk
THE BOXELDER BASIN REGIONAL
STORMWATER AUTHORITY
By: ______________________________
President
Page 9 of 12
EXHIBIT A
County Road 52 Improvements and Grading
The agreed to improvements include installation of four 4X20 box culverts including headwall
and wing walls under County Road 52 as depicted in Exhibit B. These improvements include
asphalt pavement removal and replacement to the existing profile and cross-section of the
roadway and the required guardrail. Grading outside the roadway will include regrading of an
area north of the roadway within the Mountain Vista Golf Course as depicted in Exhibit B. This
regrading will consist of regrading existing golf fairway, tree removal and replacement sod. It
should be noted that the design and grading depicted in Exhibit B is preliminary and subject to
change during final design, review comments and negotiations with Golf Course Owner.
Page 10 of 12
Exhibit B-1
Page 11 of 12
EXHIBIT B-2
Page 12 of 12
EXHIBIT C
Targeted Schedule Dates for CWCB Loan Application and Construction of Projects
Review and Approval of CR52 IGA Agreement
and IGA Amendment No 1. March 31, 2014
Review of CWCB Loan Contracts March 31–April 15, 2014
Submittal of Signed CWCB Loan Contracts April 15, 2014
Final Execution of CWCB Loan Contracts by State Controller May 15, 2014
Targeted Bidding for ESDF, LWCCS and County Road 52 Improvements August, 2014
Acquisition or Possession of Land and Availability of CWCB Loan Funds October 1, 2014
Award Construction Contract(s) December 15, 2014
Additional Funding due from Participating Entities
(Twenty (20) days prior to award of contract(s) for Projects
Construction ESDF, LWCCS, CR 52 Improvements & Grading January, 2015 to August, 2015
Targeted Substantial Completion July 15, 2015
Project Review and Finalization of CWCB Loans July 13 – July 24, 2015
- 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
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
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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.
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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
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