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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/16/2016 - RESOLUTION 2016-062 AUTHORIZING THE CITY MANAGER TAgenda Item 18 Item # 18 Page 1 AGENDA ITEM SUMMARY August 16, 2016 City Council STAFF Adam Jokerst, Water Resources Engineer SUBJECT Resolution 2016-062 Authorizing the City Manager to Execute Agreements Between the City of Fort Collins and the Northern Colorado Water Conservancy District Regarding the Sharing of Water Quality Modeling for the Halligan Water Supply Project. EXECUTIVE SUMMARY The purpose of this item is to authorize the City Manager to execute an intergovernmental agreement (IGA) between the City of Fort Collins and the Northern Colorado Water Conservancy District (Northern Water) concerning shared use of certain water quality models between the Halligan Water Supply Project and the Northern Integrated Supply Project (NISP). Staff estimates that sharing certain NISP and Halligan Project water quality models will save the City $400,000 or more and prevent delays of up to four months to the Halligan Project’s draft Environmental Impact Statement (EIS), as well as ensure more accurate, consistent, and ultimately defensible modeling for the Halligan Project. The IGA sets forth the framework for sharing certain water quality models between the Halligan Project and NISP, and contains protective terms and conditions for both entities. One key term sets forth conditions on to the extent to which the City and Northern Water may comment on the construction of the shared water quality models during federal or state permitting processes. The IGA does not express support for NISP or change the City’s position with respect to NISP. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Fort Collins is engaged in the National Environmental Policy Act (NEPA) process to obtain a Clean Water Act (CWA) Section 404 permit through the U.S. Army Corps of Engineers (Corps) for the enlargement of Halligan Reservoir. Concurrently, Northern Water is engaged in a similar process for NISP. Both entities will also require CWA Section 401 permits from the Colorado Department of Public Health and Environment (CDPHE) with input from the Environmental Protection Agency (EPA). A supplemental draft Environmental Impact Statement for NISP was issued on June 19, 2015. A draft EIS for the Halligan Project is scheduled to be released in 2017. As part of the federal permitting process for NISP, third-party contractors to the Corps are conducting studies of water quality related to both the Halligan Project and NISP. The assessment of impacts to water quality is a key aspect of CWA permitting. Storage projects have the potential to impact Poudre River water quality through alterations in streamflow and though the physical process of storing water in a reservoir. In order to assess water quality impacts, the Corps, CDPHE, and EPA have directed the Corps’ third-party consultants to prepare complex water quality models of the Cache la Poudre River. Specific to water temperature, for NISP the models will cover the main stem reach of the River starting near the canyon mouth and continuing downstream to approximately the River’s intersection with Interstate 25. NISP impacts to water temperature and water quality were a key concern raised in the City’s September 2015 comments on the NISP’s supplemental draft EIS. Agenda Item 18 Item # 18 Page 2 For the Halligan Project, the temperature modeling effort will include the same main stem reach as used for NISP, but will also extend up the North Fork of the Poudre River to Halligan Reservoir. The model used to simulate temperatures along the main stem of the Poudre River developed for NISP (Main Stem Temperature Model) is the primary subject of this IGA. However, the IGA also provides conditions for sharing other water quality models between the projects should the future need arise. These other models include a dynamic temperature model for the North Fork of the Poudre River (North Fork Temperature Model), a mass balance model that simulates the loading and concentrations of various other water quality constituents for the Halligan Project (Halligan Mass Balance Model), and a similar mass balance model developed for NISP (NISP Mass Balance Model). It is presently unknown whether sharing these other water quality models will be necessary or desirable. The Corps’ third-party contractors for the Halligan Project are actively working on various aspects of the North Fork water temperature analysis, but need a Main Stem Temperature Model in order to finalize its studies. Meanwhile, the Corps’ third-party consultants for NISP have made significant progress in developing NISP’s Main Stem Temperature Model to date. Given the overlapping geographical reach and study needs, using the NISP Main Stem Temperature Model for the Halligan Project is desirable as sharing the model will avoid redundancy by eliminating the time and effort needed to develop an independent main stem model for the Halligan Project. Construction of an independent Main Stem Temperature Model for the Halligan Project is preliminarily estimated to cost $500,000. Constructing an independent model would also likely further delay the Halligan Project. Temperature modeling is currently the critical path in Halligan Project permitting process, and staff preliminarily estimates that creating an independent Main Stem Temperature Model for the Halligan Project could delay issuance of the draft EIS by up to four months. Sharing NISP’s Main Stem Temperature Model is also likely to improve the modeling accuracy and consistency, and increase the overall defensibility of the Halligan Project draft EIS. A similar collaborative approach to analyzing Halligan and NISP was used in developing the Common Technical Platform (CTP) in 2008 following the release of the NISP draft EIS. The CTP produced a common set of models, methods, and assumptions for determining impacts of three water supply projects in the Cache la Poudre River Basin seeking federal permits: NISP, the Halligan Project, and Greeley’s Seaman Water Supply Project. The CTP yielded, in staff’s opinion, much more rigorous and defensible studies for the Halligan Project’s EIS. CTP models have been and continue to be shared between the Halligan Project and NISP. The Corps abandoned the CTP framework for the temperature modeling effort in part due to the divergence in timelines among the three projects. The Corps has stated it intends to publically release findings of the NISP temperature studies in a future NEPA document. Although methodologies, findings, and analysis of the study will be made public, the Main Stem Temperature Model itself (i.e., the digital modeling files) may not. The Corps has stated that it cannot release the NISP Main Stem Temperature Model to Fort Collins without Northern Water’s concurrence. Northern Water has indicated that an IGA with Fort Collins is needed in order for the Main Stem Temperature Model to be shared. Upon approval of the IGA, the Corps has indicated it will develop a “Communications Protocol” that incorporates the IGA and directs coordination between third-party consultants and the Corps managers for both NISP and Halligan. The IGA proposed for consideration sets out various conditions, principle among which are: 1. The Main Stem Temperature Model will be shared with the Corps third-party contractors for the Halligan Project, but the City will not have access to the Main Stem Temperature Model until such time that the models are made publically available. This provision is consistent with standard Corps procedures governing the public dissemination of third-party produced EIS work products. 2. The City agrees not to submit comments during federal or state permitting processes for NISP on the configuration, inputs, and assumptions used by third-party contractors to construct the Main Stem Temperature Model. However, the City retains the right to comment on the outputs, findings, and implications of the water quality and temperature analyses as they are presented in or derived from Agenda Item 18 Item # 18 Page 3 NEPA documentation or other public information releases and may relate to NISP’s impacts on City assets and interests. This condition poses certain risks to the City if the NISP Main Stem Temperature Model methodology is flawed. However, the CDPHE and EPA, agencies with significant expertise in water temperature studies, provided input in the development of the Main Stem Temperature Model and will be reviewing the temperature models prior to public release. The Corps and the Halligan Project third-party contractors will also be reviewing the Main Stem Temperature Model in depth. Given that numerous other expert reviews are planned for the NISP Main Stem Temperature Model, staff is reasonably assured that the NISP Main Stem Temperature Model methodology will be sound. The IGA does not prohibit the City from commenting on the findings of the temperature study or on the output and findings of the Main Stem Temperature Model. This approach is in line with the City’s past comments on NISP’s impacts to Poudre River flows. NISP’s flow impacts were determined using models developed as part of the CTP, which the City is also using for the Halligan Project. In past comments on the NISP supplemental draft EIS, the City commented extensively on the ecological and socioeconomic impacts of altered Poudre River streamflows, rather than on the methodology used to simulate flows. The IGA also does not prohibit future City comments on any other NISP-related studies. The temperature study is merely one part of the much larger body of studies conducted for NISP. The Resolution specifically states that execution of the IGA “is not intended to express support for NISP or to change the City’s position with respect to NISP, and the City is not hereby altering or amending its comments on the NISP draft and supplemental draft environmental impact statements, which comments were submitted pursuant to Resolution 2008-002 and Resolution 2015-082.” It is staff’s opinion that the City can adequately protect its interests through future public commenting opportunities on NISP while simultaneously agreeing to the provisions of the subject IGA. 3. The IGA provides terms and conditions for sharing other Halligan Project and NISP models related to water quality and water temperature, including the North Fork Temperature Model, the Halligan Mass Balance Model, and the NISP Mass Balance Model. Similar terms as described above would apply to sharing of these other models. 4. The City will contribute $100,000 towards Northern Water’s cost of developing the Main Stem Temperature Model to date. This amount is far less than the $500,000 preliminarily estimated to be needed to develop an independent Main Stem Temperature Model. The IGA also provides conditions by which Northern Water would pay the City for models developed for the Halligan Project if such models are needed in the future for the NISP project. In the event the Main Stem Temperature Model is not made available to the Halligan Project third-party contractors, the Corps could decide to direct its third-party contractors to prepare an independent Main Stem Temperature Model for the Halligan Project. This may result in a delay to the issuance of the Halligan Project draft EIS, along with increased costs to the City. It is preliminarily estimated that the resulting delay could be up to four months. The IGA was introduced at the June 14, 2016, City Council Work Session, and was briefly discussed in a July 15, 2016 Halligan Project Status Memorandum to City Council and Water Board. Northern Water approved a draft of the IGA at its July 14, 2016 Board of Directors Meeting. The IGA has also been approved by NISP participants. CITY FINANCIAL IMPACTS It is preliminarily estimated that use of the NISP Main Stem Temperature Model for the Halligan Project in lieu of constructing an independent Main Stem Temperature Model will save the City approximately $400,000. Northern Water requests payment of $100,000 for use of Main Stem Temperature Model. Agenda Item 18 Item # 18 Page 4 Sharing of other water quality models may achieve an additional cost savings. The IGA establishes payments associated with the sharing of the North Fork Temperature Model, the Halligan Mass Balance Model, and the NISP Mass Balance Model, should these models be shared under the IGA. BOARD / COMMISSION RECOMMENDATION At its June 16, 2016 meeting, the Water Board discussed the proposed IGA, but no formal action was taken because at that time the IGA was still under legal review. A finalized draft of the IGA with legal review from the Corps, Northern Water, and the City was made available on July 25, 2016. PUBLIC OUTREACH The water temperature modeling is currently the critical path in the Halligan Project permitting process. Given the time sensitive nature of this request, staff has not conducted any public engagement. Also, as noted above, a finalized draft of IGA was only recently made available. However, in the future the Corps will publically release information on the water quality studies of both NISP and the Halligan Project, and the public will be provided an opportunity to comment on the studies. ATTACHMENTS 1. Water Board minutes, June 16, 2016 (PDF) 3 Water Board Minutes June 16, 2016 PRPA owns 160 units of Windy Gap, but without firming storage, Mr. Dustin explained they wouldn’t be productive for Utilities. Board members inquired about various topics, including requesting staff to explain the Windy Gap Firming Project. Mr. Dustin replied that the Windy Gap unit owners had to pick the number of shares they wanted to firm. Firming requires unit holders to show a purpose and need, just as Fort Collins must do for the Halligan Project. It’s an independent choice for owners. Halligan Quarterly Report (Attachment available upon request) Water Resources Engineer Adam Jokerst summarized the report: the U.S. Army Corps of Engineers continues to make progress on the Halligan Project’s Environmental Impact Statement (EIS), and presently anticipates to release the draft EIS in June 2017. City staff has reviewed numerous technical report drafts in recent months. The critical path to getting an EIS published is the water quality study, which includes two parts: a mass balance model and a dynamic temperature model. Staff has discussed sharing the dynamic temperature model for the mainstem of the Poudre River being developed for the Northern Integrated Supply Project (NISP) with the Halligan Project. In the next couple of months, staff may ask City Council to consider an intergovernmental agreement (IGA) with Northern Water for this purpose. Mr. Jokerst discussed some of the initial terms proposed in a potential IGA. Board members inquired about various related topics, including timeline, public comment period, and the cost of sharing the models; Mr. Jokerst replied it would cost about $100,000 to share the NISP dynamic temperature model, but that developing a similar model independently for the Halligan Project may cost roughly $500,000. Water Reclamation & Biosolids Manager Jason Graham explained that temperature of surface water is becoming a bigger issue; as a result there’s more instream monitoring. Various City staff members belong to professional industry organizations and keep an eye on industry news related to this and other water quality topics. 2009 Wastewater Revenue Bond Advanced Refunding (Attachments available upon request) Financial Analyst Chris Donegon summarized the information he presented at the June 2 Water Board Work Session regarding refinancing 2009 wastewater revenue bonds, and requested the board recommend City Council adopt an ordinance to allow for pre-refunding of the 2009 Wastewater Revenue Bond. • Revenue bonds were issued January 29, 2009 • 20-year bonds, final payment in 2028 • Coupon interest varied from 2.0% to 5.0% • Not callable until December 1, 2018 • Original issue: $30,655,000 • Current outstanding: $24,405,000 • Eligible for prepayment: $20,080,000 • Estimate new rate of 2.11% ATTACHMENT 1 -1- RESOLUTION 2016-062 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO EXECUTE AGREEMENTS BETWEEN THE CITY OF FORT COLLINS AND THE NORTHERN COLORADO WATER CONSERVANCY DISTRICT REGARDING THE SHARING OF WATER QUALITY MODELING FOR THE HALLIGAN WATER SUPPLY PROJECT WHEREAS, the City is pursing the Halligan Water Supply Project (“Halligan Project”) and has applied for a permit from the United States Army Corps of Engineers (“Corps”) under Section 404 of the Clean Water Act; and WHEREAS, the City is currently working with the Corps and its third-party contractors in its preparation of an environmental impact statement (“EIS”), pursuant to the Clean Water Act and the National Environmental Policy Act (“NEPA”); and WHEREAS, the Northern Colorado Water Conservancy District (“Northern Water”) is pursing the Northern Integrated Supply Project (“NISP”) and has applied for a permit from the Corps under Section 404 of the Clean Water Act; and WHEREAS, Northern Water is currently working with the Corps and its third-party contractors in its preparation of an EIS, pursuant to the Clean Water Act and NEPA; and WHEREAS, certain water quality modeling and analyses (which includes temperature modeling and analyses, for the purposes of this Resolution) must be completed for the Halligan Project as part of its permitting processes with the Corps; and WHEREAS, certain water quality modeling and analyses must be completed for NISP as part of its permitting processes with the Corps; and WHEREAS, the coordination of the water quality modeling and analytical efforts for the Halligan Project and for NISP, including, but not limited to, the integration of the various water quality models developed for the Cache la Poudre River Basin, will result in substantial cost savings for the City, consistency, and in more accurate modeling and analyses; and WHEREAS, the City and Northern Water have negotiated an Agreement for the sharing of certain models and the coordination of such efforts, a copy of which is attached as Exhibit “A”; and WHEREAS, the City’s execution of the Agreement is not intended to express support for NISP or to change the City’s position with respect to NISP, and the City is not hereby altering or amending its comments on the NISP draft and supplemental draft environmental impact statements, which comments were submitted pursuant to Resolution 2008-002 and Resolution 2015-082. -2- NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Manager is hereby authorized to execute an Agreement substantially in the form of 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 Resolution. Section 3. That the City Manager is hereby authorized to execute additional agreements between the Parties regarding the sharing of water quality models as contemplated in Paragraphs 3, 4, and 5 of “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 Resolution.. Passed and adopted on at a regular meeting of the Council of the City of Fort Collins this 16th day of August, A.D. 2016. __________________________________ Mayor ATTEST: _______________________________ City Clerk Page 1 of 12 AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND THE NORTHERN COLORADO WATER CONSERVANCY DISTRICT REGARDING THE SHARING OF WATER QUALITY MODELING This Agreement is entered into by and between the following Parties: the City of Fort Collins, Colorado, a home rule municipality (“City”); and the Northern Colorado Water Conservancy District (a quasi-municipal entity and political subdivision of the State of Colorado), acting by and through its Northern Integrated Supply Project Water Activity Enterprise (a government-owned business within the meaning of Article X, Section 20(2)(d), of the Colorado Constitution, organized pursuant to C.R.S. §§ 37-45.1-101 et seq.) (“Northern Water”). RECITALS A. The City is pursuing the Halligan Water Supply Project (“Halligan Project”). The City has applied for a permit from the United States Army Corps of Engineers (“Corps”) under Section 404 of the Clean Water Act. The Corps is currently preparing an environmental impact statement (“EIS”), pursuant to the Clean Water Act and the National Environmental Policy Act (“NEPA”), for the Halligan Project. B. In this permitting process for the Halligan Project, the Corps directs third-party contractors to assist in the preparation of the EIS. The third-party contractor working on water quality modeling and analyses for the Halligan Project is CDM Smith, Inc. (“CDM Smith”). C. For the Halligan Project, the Corps and CDM Smith are developing a mass balance water quality model for the main stem and North Fork of the Cache la Poudre River (“Halligan Mass Balance Model”) and a dynamic temperature model for the North Fork of the Cache la Poudre River (“North Fork Temperature Model”). D. Northern Water is pursuing the Northern Integrated Supply Project (“NISP”). Northern Water has applied for a permit from the Corps under Section 404 of the Clean Water Act. The Corps is currently preparing an EIS, pursuant to the Clean Water Act and NEPA, for NISP. E. In this permitting process for NISP, the Corps directs third-party contractors to assist in the preparation of the EIS. The third-party contractor working on water quality modeling and analyses for NISP is Hydros Consulting, Inc. (“Hydros”). F. For NISP, the Corps and Hydros are developing a mass balance water quality model for the main stem of the Cache la Poudre River (“NISP Mass Balance Model”) and a dynamic temperature model for the main stem of the Cache la Poudre River (“Main Stem Temperature Model”). G. Certain water quality modeling and analyses must be completed for the Halligan Project for both the North Fork and the main stem of the Cache la Poudre River as part of its permitting processes with the Corps. Water temperature is considered to be an aspect of water quality in such modeling and analyses for the Halligan Project. Similarly, certain water quality modeling EXHIBIT A Page 2 of 12 and analyses must be completed for NISP as part of its permitting processes with the Corps. Water temperature is considered to be an aspect of water quality in such modeling and analyses for NISP. NISP water quality modeling and analyses is currently focused on the main stem of the Cache la Poudre River, but may also consider certain water quality aspects of the North Fork of the Cache la Poudre River. H. The coordination of the water quality modeling and analytical efforts for the Halligan Project and for NISP, including, but not limited to, the integration of the various models for the North Fork of the Cache la Poudre River with those for the main stem of the Cache la Poudre River, will result in cost savings for each entity, consistency, and in more accurate modeling and analyses. I. The City and Northern Water desire to enter into an agreement regarding the coordination of some of their water quality modeling and analytical efforts, as set forth in this Agreement. AGREEMENT 1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as if fully restated in their entirety. 2. SHARING OF THE MAIN STEM TEMPERATURE MODEL. The Parties agree to the following terms and conditions pursuant to which the Main Stem Temperature Model developed for NISP may be used for the Halligan Project. 2.1. The Main Stem Temperature Model is not currently in the possession or control of Northern Water; it will be made available when the results of the model are publicly released by the Corps. It is the understanding of the Parties that the Corps intends to release the results of the model in a future NEPA document for NISP. When the Corps publicly releases results of the model, the Main Stem Temperature Model will be made available to the third-party contractors for the water temperature modeling and analyses for the Halligan Project. 2.2. The Main Stem Temperature Model will be made available in advance of the Corps’ public release of the model results (as soon as it is calibrated) in the event that Hydros is used as the third-party contractor for the main stem modeling portion of the water temperature modeling and analyses (including the integration of results from the North Fork Temperature Model) for the Halligan Project and its alternatives. 2.3. Regardless of whether the Main Stem Temperature Model is made available under Paragraph 2.1 or Paragraph 2.2, neither City staff nor any other party associated with the City (which excludes the third-party contractors for the Halligan Project) will have access to the Main Stem Temperature Model until such time (if or when) the Corps makes the model publicly available. Page 3 of 12 2.4. Until such time that the Main Stem Temperature Model is publicly available, the model will be made available for the sole purpose of the third-party contractors’ water temperature studies pertaining to the Halligan Project. 2.5. Neither the City nor the third-party contractors for the Halligan Project will share the Main Stem Temperature Model with other persons, entities, or their consultants, or other third-party contractors in a Clean Water Act or NEPA process other than NISP or the Halligan Project. 2.6. Other persons or entities interested in accessing the Main Stem Temperature Model must address this issue directly through the Corps and Northern Water. 2.7. The City agrees not to submit comments during federal or state permitting processes for NISP on the configuration, inputs, and assumptions used to construct the Main Stem Temperature Model. However, the City retains the right to comment on the outputs, findings, and implications of the water temperature analyses of the Main Stem Temperature Model as they are presented in or derived from the NEPA documentation or other Corps’ public information releases and may relate to NISP’s impacts on City assets and interests. 2.8. Subject to oversight by and direction from the Corps, if the third-party contractors for the Halligan Project temperature analyses are other than Hydros, and if such third- party contractors identify questions or concerns in the course of reviewing the Main Stem Temperature Model and/or integrating the Main Stem Temperature Model and the North Fork Temperature Model, those will be brought to the attention of Hydros with the intent to resolve the issue informally. 2.9. The Parties will acknowledge that the Main Stem Temperature Model, as developed for NISP, is not appropriate for use in analyzing the Halligan Project or its alternatives without appropriate project-specific modifications, potentially including recalibration and revalidation. 3. SHARING OF THE NORTH FORK TEMPERATURE MODEL. The Parties agree to the following terms and conditions pursuant to which the North Fork Temperature Model developed for the Halligan Project may be used for NISP. 3.1. Northern Water does not know at this time if it will be necessary for the North Fork Temperature Model developed for the Halligan Project to be used for NISP. However, if Northern Water or the Corps at a later date determines that the North Fork Temperature Model is necessary for NISP analyses, Northern Water will notify the City in writing, pursuant to Paragraph 16, that it desires to use the North Fork Temperature Model for NISP. In the event of such notification, the provisions in Paragraphs 3.2 through 3.9 shall apply. 3.2. The North Fork Temperature Model is not currently in the possession or control of the City. Upon notification from Northern Water according to Paragraph 3.1, the City Page 4 of 12 will support the sharing of the North Fork Temperature Model, including its configurations, output data, and any analyses related to cumulative effects, with the third- party contractors for NISP once that model has been calibrated. 3.3. Neither Northern Water staff nor any other party associated with Northern Water (which excludes the third-party contractors for NISP) will have access to the North Fork Temperature Model until such time (if or when) the Corps makes the model publicly available. 3.4. Until such time that the North Fork Temperature Model is publicly available, the model will be made available for the sole purpose of the third-party contractors’ water quality studies pertaining to NISP. 3.5. Neither Northern Water nor the third-party contractors for NISP will share the North Fork Temperature Model with other persons, entities, or their consultants, or other third-party contractors in a Clean Water Act or NEPA process other than NISP or the Halligan Project. Other persons or entities interested in accessing the North Fork Temperature Model must address this issue directly through the Corps and the City. 3.6. The City retains the right to share the North Fork Temperature Model and outputs with other persons and entities without the consent of Northern Water, subject to Corps approval. 3.7. In the event the North Fork Temperature Model is shared with and executed by the third-party contractor for the NISP analyses, Northern Water agrees not to submit comments during federal or state permitting processes for the Halligan Project on the configuration, inputs, and assumptions used to construct the North Fork Temperature Model. However, Northern Water retains the right to comment on the outputs, findings, and implications of the North Fork water temperature analyses as they are presented in or derived from the EIS or other Corps’ public information releases and may relate to the Halligan Project’s impacts on Northern Water’s assets and interests. 3.8. Subject to oversight by and direction from the Corps, if the third-party contractors for NISP identify questions or concerns on the North Fork Temperature Model, those will be brought to the attention of CDM Smith with the intent to resolve the issue informally. 3.9. The Parties acknowledge that the North Fork Temperature Model, as developed for the Halligan Project, may not be appropriate for use in analyzing NISP or its alternatives without appropriate project-specific modifications, potentially including recalibration and revalidation. 4. SHARING OF THE NISP MASS BALANCE MODEL. The Parties agree to the following terms and conditions regarding sharing of the NISP Mass Balance Model. 4.1. The City does not know at this time if it will be necessary or desirable to use the NISP Mass Balance Model for the Halligan Project. However, if the City or the Corps at Page 5 of 12 a later date determines that the NISP Mass Balance Model is necessary for the Halligan Project analyses, the City will notify Northern Water in writing, pursuant to Paragraph 16, that it desires to use the NISP Mass Balance Model for the Halligan Project. In the event of such notification, the provisions in Paragraphs 4.2 through 4.9 shall apply. 4.2. The NISP Mass Balance Model is not currently in the possession or control of Northern Water. Upon notification from the City according to Paragraph 4.1, Northern Water will support the sharing of the NISP Mass Balance Model, including its configurations, output data, and any analyses related to cumulative effects, with the third- party contractors for Halligan Project, as follows: 4.2.1. It is the understanding of the Parties that the Corps intends to release the results of the NISP Mass Balance Model in a future NEPA document for NISP. When the Corps publicly releases results of the model, the NISP Mass Balance Model will be made available to the third-party contractors for the Halligan Project. 4.2.2. The NISP Mass Balance Model will be made available in advance of the Corps’ public release of the model results (as soon as it is calibrated) in the event that Hydros is used as the third-party contractor for the main stem modeling portion of the mass balance modeling and analyses for the Halligan Project. 4.3. Regardless of whether the NISP Mass Balance Model is made available under Paragraph 4.2.1 or Paragraph 4.2.2, neither City staff nor any other party associated with the City (which excludes the third-party contractors for the Halligan Project) will have access to the NISP Mass Balance Model until such time (if or when) the Corps makes the model publicly available. 4.4. Until such time that the NISP Mass Balance Model is publicly available, the model will be made available for the sole purpose of the third-party contractors’ water quality studies pertaining to the Halligan Project. 4.5. Neither the City nor the third-party contractors for the Halligan Project will share the NISP Mass Balance Model with other persons, entities, or their consultants, or other third-party contractors in a Clean Water Act or NEPA process other than NISP or the Halligan Project. Other persons or entities interested in accessing the NISP Mass Balance Model must address this issue directly through the Corps and Northern Water. 4.6. Northern Water retains the right to share the NISP Mass Balance Model and outputs with other persons and entities without the consent of the City. 4.7. In the event the NISP Mass Balance Model is shared with and executed by the third-party contractor for the Halligan analyses, the City agrees not to submit comments during federal or state permitting processes for NISP on the configuration, inputs, and assumptions used to construct the NISP Mass Balance Model. However, the City retains Page 6 of 12 the right to comment on the outputs, findings, and implications of the NISP Mass Balance Model analyses as they are presented in or derived from the NEPA documentation or other Corps’ public information releases and may relate to NISP’s impacts on the City’s assets and interests. 4.8. Subject to oversight by and direction from the Corps, if the third-party contractors for the Halligan Project identify questions or concerns on the NISP Mass Balance Model, those will be brought to the attention of Hydros with the intent to resolve the issue informally. 4.9. The Parties acknowledge that the NISP Mass Balance Model, as developed for NISP, may not be appropriate for use in analyzing the Halligan Project or its alternatives without appropriate project-specific modifications, potentially including recalibration and revalidation. 5. SHARING OF THE HALLIGAN MASS BALANCE MODEL. The Parties agree to the following terms and conditions regarding sharing of the Halligan Mass Balance Model. 5.1. Northern Water does not know at this time if it will be necessary for the Halligan Mass Balance Model developed for the Halligan Project to be used for NISP. However, if Northern Water or the Corps at a later date determines that the Halligan Mass Balance Model is necessary for NISP analyses, Northern Water will notify the City in writing, pursuant to Paragraph 16, that it desires to use the Halligan Mass Balance Model for NISP. In the event of such notification, the provisions in Paragraphs 5.2 through 5.9 shall apply. 5.2. The Halligan Mass Balance Model is not currently in the possession or control of the City. Upon notification from Northern Water according to Paragraph 5.1, the City will support the sharing of the Halligan Mass Balance Model, including its configurations, output data, and any analyses related to cumulative effects, with the third- party contractors for NISP once that model has been calibrated. 5.3. Neither Northern Water staff nor any other party associated with Northern Water (which excludes the third-party contractors for NISP) will have access to the Halligan Mass Balance Model until such time (if or when) the Corps makes the model publicly available. 5.4. Until such time that the Halligan Mass Balance Model is publicly available, the model will be made available for the sole purpose of the third-party contractors’ water quality studies pertaining to NISP. 5.5. Neither Northern Water nor the third-party contractors for NISP will share the Halligan Mass Balance Model with other persons, entities, or their consultants, or other third-party contractors in a Clean Water Act or NEPA process other than NISP or the Halligan Project. Other persons or entities interested in accessing the Halligan Mass Balance Model must address this issue directly through the Corps and the City. Page 7 of 12 5.6. The City retains the right to share the Halligan Mass Balance Model and outputs with other persons and entities without the consent of Northern Water, subject to Corps approval. 5.7. In the event the Halligan Mass Balance Model is shared with and executed by the third-party contractor for the NISP analyses, Northern Water agrees not to submit comments during federal or state permitting processes for the Halligan Project on the configuration, inputs, and assumptions used to construct the Halligan Mass Balance Model. However, Northern Water retains the right to comment on the outputs, findings, and implications of the Halligan Mass Balance Model analyses as they are presented in or derived from the EIS or other Corps’ public information releases and may relate to the Halligan Project’s impacts on Northern Water’s assets and interests. 5.8. Subject to oversight by and direction from the Corps, if the third-party contractors for NISP identify questions or concerns on the Halligan Mass Balance Model, those will be brought to the attention of CDM Smith with the intent to resolve the issue informally. 5.9. The Parties acknowledge that the Halligan Mass Balance Model, as developed for the Halligan Project, may not be appropriate for use in analyzing NISP or its alternatives without appropriate project-specific modifications, potentially including recalibration and revalidation. 6. MEETING TO DISCUSS MODELING ASSUMPTIONS. In the interest of promoting consistency in the assumptions underlying the water temperature analyses in the North Fork Temperature Model, the Main Stem Temperature Model, the Halligan Mass Balance Model, and the NISP Mass Balance Model, prior to making the models available, the Corps, the City, Northern Water, and the respective third-party contractors for the Halligan Project and NISP will meet one or more times to discuss key assumptions, including those for cumulative effects, related to the North Fork and the main stem of the Cache la Poudre River. 7. DELEGATION OF RESPONSIBILITIES BETWEEN THIRD-PARTY CONTRACTORS. The Parties acknowledge that the Corps is delegating the specific tasks and responsibilities among third-party contractors in developing the Halligan Project water temperature models and analysis. However, it is the desire of the Parties that if Hydros is used as the third-party contractor to perform water temperature modeling and analyses for the Halligan Project, that: (1) Hydros will work cooperatively with CDM Smith to integrate the North Fork Temperature Model with the Main Stem Temperature Model; (2) Hydros will lead the effort to modify the Main Stem Temperature Model to be able to analyze the Halligan Project; (3) Hydros will execute the Main Stem Temperature Model for all alternatives identified for the Halligan Project; (4) CDM Smith will execute the North Fork Temperature Model for all alternatives identified for the Halligan Project; and (5) CDM Smith will produce the final documentation of all water temperature modeling and analyses for the Halligan Project EIS in accordance with established Halligan Project EIS reporting standards. Page 8 of 12 8. STATE PERMITTING PROCESSES. Nothing in this Agreement precludes a Party from requesting that the Corps release water temperature or water quality modeling and analysis information to the State in support of a 401 water quality certification application or the State fish and wildlife mitigation planning process before such information is made publicly available. The requesting Party shall coordinate in good faith with the other Party to this Agreement prior to making any such request of the Corps. 9. PAYMENT FOR WORK. The Parties agree to the following terms and conditions regarding payment for work on the models. 9.1. The City will contribute $100,000 to the Northern Integrated Supply Project Water Activity Enterprise toward the cost of the present modeling work by Hydros to develop the Main Stem Temperature Model. 9.2. If the North Fork Temperature Model, whether alone or integrated with the Main Stem Temperature Model, is executed for any NISP analysis pursuant to Paragraph 3, the Northern Integrated Supply Project Water Activity Enterprise will contribute to the City $40,000 toward the cost of the modeling work by CDM Smith to develop the North Fork Temperature Model. 9.3. If the NISP Mass Balance Model is executed for any Halligan Project analyses pursuant to Paragraph 4, the City will contribute to the Northern Integrated Supply Project Water Activity Enterprise $70,000 toward the cost of the modeling work by Hydros to develop the NISP Mass Balance Model. 9.4. If the Halligan Mass Balance Model is executed for any NISP analyses pursuant to Paragraph 5, the Northern Integrated Supply Project Water Activity Enterprise will contribute to the City $30,000 toward the cost of the modeling work by CDM Smith to develop the Halligan Mass Balance Model. 9.5. The City and Northern Water will mutually agree on cost allocation for any future work, if required, on the North Fork Temperature Model, the Main Stem Temperature Model, the Halligan Mass Balance Model, and the NISP Mass Balance Model that is beyond the current scope of work. 10. RIGHT TO TERMINATE DUE TO UNACCEPTABLE DELAY. This arrangement assumes that any work undertaken by Hydros as a third-party contractor for the Halligan Project will not interfere with the timely performance of Hydros’ existing obligations as a third-party contractor for the NISP analysis. In the event this arrangement presents an unacceptable delay to either Party, either Party may terminate this arrangement prior to the sharing of any of the models, upon written notice to the other Party. 11. FISCAL CONTINGENCY. Notwithstanding any other provision of this Agreement to the contrary, the obligations of Fort Collins and Northern Water (“Public Entity” in this paragraph) in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, with the Public Entity having the sole discretion to Page 9 of 12 determine whether the subject funds are sufficient and intended for use under this Agreement, and the failure of the Public Entity to appropriate such funds shall be grounds for the Public Entity to withdraw from this Agreement with written notice pursuant to Paragraph 16. 12. REMEDIES. If either Party fails to comply with the provisions of this Agreement, the other Party, after providing written notification to the noncomplying Party, and upon the failure of the noncomplying Party to achieve compliance within thirty-five (35) days, may seek all such remedies available under Colorado law. 13. NO THIRD-PARTY BENEFICIARIES. This Agreement is entered into between the Parties for the purposes set forth herein. It is the intent of the Parties that they are the only beneficiaries of this Agreement and the Parties are only benefitted to the extent provided under the express terms and conditions of this Agreement. 14. GOVERNING LAW AND ENFORCEABILITY. This Agreement shall be construed in accordance with the laws of the State of Colorado. The Parties recognize that the constitutions, statutes, and rules and regulations of the State of Colorado and of the United States, as well as the Parties’ respective bylaws, city charters and codes, and rules and regulations, impose certain legal constraints on each Party and that the Parties intend to carry out the terms and conditions of this Agreement subject to those constraints. Whenever possible, each provision of this Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. 15. WAIVER. A waiver of a breach of any of the provisions of this Agreement shall not constitute a waiver of any subsequent breach of the same or another provision of this Agreement. Nothing in this Agreement shall be construed as any waiver of governmental immunity of the Parties who are governments or any other governmental provisions of State law. Specifically, by entering into this Agreement, neither Party waives the monetary limitations on liability or any other rights, immunities, or protections provided by the Colorado Government Immunity Act, C.R.S. § 24-10-101, et seq., or any successor or similar statutes of the State of Colorado. 16. NOTICES. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when personally delivered, or after the lapse of five (5) business days following mailing by certified mail-return receipt requested, postage prepaid, addressed as follows: To Fort Collins: City Manager City Hall West 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 With copy to: Fort Collins City Attorney 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 epotyondy@fcgov.com Page 10 of 12 and: Fort Collins Utilities Attn: Water Resources Manager 700 Wood Street P.O. Box 580 Fort Collins, Colorado 80522-0580 ddustin@fcgov.com; ajokerst@fcgov.com To Northern Water: General Manager 220 Water Avenue Berthoud, Colorado 80513 17. CONSTRUCTION. This Agreement shall be construed according to its fair meaning as it was prepared by the Parties. Headings in this Agreement are for convenience and reference only and shall in no way define, limit, or prescribe the scope or intent of any provision of this Agreement. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties regarding the matters addressed herein. This Agreement binds and benefits the Parties and their respective successors. Covenants or representations not contained in this Agreement regarding the matters addressed herein shall not bind the Parties. 19. REPRESENTATIONS. Each Party represents to the other parties that it has the power and authority to enter into this Agreement and the individual signing below on behalf of that Party has the authority to execute this Agreement on its behalf and legally bind that Party. 20. ASSIGNMENT. No Party may assign any rights or delegate any duties under this Agreement without the written consent of all other Parties. [Remainder of Page Left Blank Intentionally] Page 11 of 12 CITY OF FORT COLLINS, COLORADO, a Colorado home rule city By: ______________________________________ Darin A. Atteberry, City Manager ATTEST: By: ______________________________________ City Clerk APPROVED AS TO LEGAL FORM: By: ______________________________________ City Attorney’s Office Page 12 of 12 NORTHERN COLORADO WATER CONSERVANCY DISTRICT, a political subdivision of the State of Colorado, acting by and through its NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE By: ______________________________________ Eric Wilkinson, General Manger ATTEST: By: ______________________________________