Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/01/2019 - ITEMS RELATING TO AGREEMENTS FOR DELIVERY OF HORSEAgenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY October 1, 2019 City Council STAFF Mark Kempton, Water Production Manager Eric Potyondy, Legal SUBJECT Items Relating to Agreements for Delivery of Horsetooth Reservoir Water During the Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet. EXECUTIVE SUMMARY A. Resolution 2019-096 Authorizing the City Manager to Execute an Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the North Weld County Water District, and the Northern Colorado Water Conservancy District Acting By and Through the Pleasant Valley Pipeline Water Activity Enterprise Regarding a Supplemental Means to Deliver Horsetooth Reservoir Water to the Fort Collins Water Treatment Facility and Soldier Canyon Water Treatment Plant (Pleasant Valley Pipeline Modifications and Use). B. Resolution 2019-097 Authorizing the City Manager to Execute an Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, the North Weld County Water District, and the City of Greeley Regarding a Supplemental Means to Deliver Horsetooth Reservoir Water to the Fort Collins Water Treatment Facility and Soldier Canyon Water Treatment Plant (Greeley Infrastructure Modifications and Use). C. Resolution 2019-098 Authorizing the City Manager to Execute an Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water District Regarding a Supplemental Means to Deliver Horsetooth Reservoir Water to the Fort Collins Water Treatment Facility and Soldier Canyon Water Treatment Plant (Project Work - New Infrastructure - New Property Rights). The purpose of this item is to authorize the City Manager to execute three agreements between combinations of the City of Fort Collins (City), Fort-Collins Loveland, East Larimer County, and North Weld County water districts (the Tri-Districts), the City of Greeley (Greeley), and the Northern Colorado Water Conservancy District (Northern Water) regarding a project to provide a temporary backup water supply pumping system during an October-November 2020 shutdown of the Soldier Canyon Dam Outlet pipeline (Soldier Canyon Outlet) which conveys water from Horsetooth Reservoir to the two drinking water treatment plants serving Fort Collins and surrounding areas. The pumping system is intended as a backup supply system to the primary Cache la Poudre River water supply during the 60-day long planned outage of the Soldier Canyon Outlet. Three separate agreements are needed because each agreement concerns discrete aspects of this project, involving specific infrastructure and set of entities: (A) an agreement between the City, the Tri-Districts, and Northern Water regarding the use of Northern Water’s Pleasant Valley Pipeline; (B) an agreement between the City, the Tri-Districts, and Greeley regarding the use of Greeley’s infrastructure; and (C) an agreement between the City and the Tri-Districts regarding the ownership, design, construction, and operation of new infrastructure. Agenda Item 9 Item # 9 Page 2 STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Northern Water owns and operates the 54-inch Soldier Canyon Outlet that delivers raw water from Horsetooth Reservoir to the City's Fort Collins Water Treatment Facility and the Tri-Districts’ Soldier Canyon Water Treatment Plant. Northern Water is planning to perform necessary maintenance on the Soldier Canyon Outlet in October and November 2020. This maintenance will require a full shutdown of the Soldier Canyon Outlet for up to 60 days, which would result in both treatment plants relying exclusively on the Poudre River as the water source for the City's and the Tri-Districts’ respective water service areas. The Poudre River has historically been a reliable source of high-quality water. However, it can be susceptible to water quality impairing incidents such as forest fires, vehicle crashes, chemical spills, and other incidents. These incidents may cause the treatment plants to shut off the water intakes from the river. If one or more of these such incidents were to occur during the planned shutdown, the City and the Tri-Districts would be at risk of a drinking water shortage. Pursuant to Resolution 2019-055, the City, the Tri-Districts, and Greeley entered into the Agreement […] Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet. Under this agreement, various potential options were examined to mitigate the potential water supply risk associated with the work on the Soldier Canyon Outlet. Consistent with the results of the study, the City and the Tri-Districts (partnering with Greeley and Northern Water) are now pursuing a project to design and construct a temporary backup emergency pumping station to supply Horsetooth Reservoir water to both treatment plants in the case of a loss of water supply from the Poudre River. This effort will require the implementation of three separate agreements involving the City, the Tri-Districts, the City of Greeley, and Northern Water. A location map and schematic of the pumping system are attached. (Attachment 1 and 2) Under this project, the Horsetooth Reservoir water that would normally be delivered to the City’s and the Tri- Districts’ water treatment plants through the Soldier Canyon Outlet will be diverted and supplied to the two treatment plants in the following manner: 1. Water will be released from Horsetooth Reservoir into the Charles Hansen Supply Canal, which generally carries water from the north end of Horsetooth Reservoir towards the Poudre River. 2. The water will then be released from the Charles Hansen Supply Canal to an existing pipe diversion owned by Greeley. A new connection will be made to Greeley’s pipe that will flow to the new temporary pumping station. 3. Water will then flow from the Greeley pipeline tap into a temporary pumping station to be constructed in early 2020. The temporary pumping station will be owned and operated by the City and the Tri-Districts. 4. Water will then be pumped into the existing Pleasant Valley Pipeline (PVP) through a new connection into the PVP that will transport water to both treatment plants to serve the City’s and the Tri-District’s customers. The design construction, operations and maintenance (O&M) of the pumping system will require the implementation of the following three agreements; A. An agreement between the City and the Tri-Districts regarding the ownership, design, construction, and O&M of the temporary pumping system; B. An agreement between the City, the Tri-Districts, and Greeley regarding the connection to Greeley’s existing 36-inch pipeline; and C. An agreement between the City, the Tri-Districts, and Northern Water regarding the connection to the existing 67-inch Pleasant Valley Pipeline. Agenda Item 9 Item # 9 Page 3 The City will initially fund and manage the construction of the project. As described in the first agreement referenced above, the Tri-Districts will reimburse the City at appropriate milestones for their portion of the project costs. Portions of the completed project will result in permanent construction and will be owned and operated by the City and the Tri-Districts in case of the need for a future permanent pump station at this location. The pumps associated with the pumping station will be temporary and will be removed from the site at the completion of the shutdown project. CITY FINANCIAL IMPACTS The cost of the project is estimated to be $2.0 million which will be shared between the City and the Tri- Districts. The funds will be requested from Water Fund reserves under a separate appropriation to Council. BOARD / COMMISSION RECOMMENDATION On September 19, 2019, the Water Board voted unanimously to recommend approval of the agreements and the funding appropriation. (Attachment 3) PUBLIC OUTREACH Extensive public outreach will be performed in the months prior to the shutdown with the goal of reducing water demand to historical winter levels. Outreach efforts will potentially include requests and incentives to minimize outdoor watering by October 1, 2020, engage with key customer accounts, and educate City water customers about the potential impacts of the project. The outreach will also serve to inform, share conservation benefits, in addition to working with customers to reduce usage. Outreach will be performed in cooperation with the Tri- Districts where feasible. Additional risk reduction measures such as restricting truck traffic in the Poudre Canyon during the shutdown are being discussed with the Colorado Department of Transportation (CDOT). ATTACHMENTS 1. Horsetooth Shutdown Location Map (PDF) 2. Pump Station Schematic Layout (PDF) 3. Water Board Minutes September 19, 2019 (Draft) (PDF) Project Location Map Teds Place Noosa Dairy Poudre River/HWY 14 Project Site ATTACHMENT 1 ATTACHMENT 2 Excerpt from Unapproved DRAFT MINUTES - WATER BOARD REGULAR MEETING September 19, 2019, 5:30 p.m. 222 Laporte Avenue, Colorado River Community Room 09/19/2019 – Excerpt from Unapproved DRAFT MINUTES Page 1 Horsetooth Supply Line Shutdown Emergency Water Supply Project Water Production Manager Mark Kempton summarized the Three Separate inter- governmental agreements (IGAs) between combinations of the City of Fort Collins, Fort-Collins Loveland, East Larimer County, and North Weld County water districts (the Tri-Districts), the City of Greeley, and the Northern Colorado Water Conservancy District (Northern Water) regarding a project to provide a temporary backup water supply pumping system during an October-November 2020 shutdown of the Soldier Canyon Dam Outlet pipeline from Horsetooth Reservoir to the two drinking water treatment plants serving the City of Fort Collins and surrounding areas. The pumping system is intended as a backup supply system to the primary Cache la Poudre River water supply during the 60-day long planned outage of the Horsetooth water line. City of Fort Collins uses two drinking water sources: Horsetooth (HT) and Poudre River. The HT Pipeline is operated by Northern Water. Water Treatment Facility will be on a single water source during the project: Poudre River; agreement and temporary backup water supply pumping system will mitigate risk associated with single water source; Mr. Kempton stated he will return to Water Board next month with estimate cost and appropriation request. Discussion Highlights: Board members commented on and inquired about various related topics including if a catastrophic event occurs, will the pumps be adequate (Mr. Kempton replied that they could ask Northern to delay the project in the event of a wildfire, etc.); long term mitigation technique; extensive public outreach on water conservation to decrease water demand; temporary because it’s less expensive (a permanent pump station would cost significantly more). Board Member Steve Malers moved that the Water Board recommend to City Council the adoption of three Inter Governmental Agreements with a combination of the Tri- Districts, the City of Greeley, and Northern Water, authorizing the City to enter into contracts to develop a backup water supply system during the planned shutdown during the Horsetooth Reservoir water supply line in Fall 2020. Board Member Phyllis Ortman seconded the motion. Discussion on the motion: None Vote on the Motion: it passed unanimously, 8-0 ATTACHMENT 3 -1- RESOLUTION 2019-096 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS, THE EAST LARIMER COUNTY WATER DISTRICT, THE FORT COLLINS-LOVELAND WATER DISTRICT, THE NORTH WELD COUNTY WATER DISTRICT, AND THE NORTHERN COLORADO WATER CONSERVANCY DISTRICT ACTING BY AND THROUGH THE PLEASANT VALLEY PIPELINE WATER ACTIVITY ENTERPRISE REGARDING A SUPPLEMENTAL MEANS TO DELIVER HORSETOOTH RESERVOIR WATER TO THE FORT COLLINS WATER TREATMENT FACILITY AND SOLIDER CANYON WATER TREATMENT PLANT (PLEASANT VALLEY PIPELINE MODIFICATIONS AND USE) WHEREAS, Horsetooth Reservoir is a water storage reservoir operated by the Northern Colorado Water Conservancy District (“Northern Water”), which is created by the Soldier Canyon Dam and other infrastructure; and WHEREAS, the Soldier Canyon Outlet is a pipe and related infrastructure that conveys water from Horsetooth Reservoir under and through Soldier Canyon Dam; and WHEREAS, water delivered through the Soldier Canyon Outlet is ultimately delivered to, among other locations: the City’s Water Treatment Facility and the Soldier Canyon Filter Plant, which is owned and operated by the East Larimer County Water District, the Fort Collins- Loveland Water District, and the North Weld County Water District (collectively, “Tri- Districts”) through the Soldier Canyon Water Treatment Authority (together, “Horsetooth Water Treatment Plants”); and WHEREAS, Northern Water intends to temporarily shut down the Soldier Canyon Outlet during 2020 for approximately 45 to 60 days for inspection, maintenance, and related purposes, which will result in a water supply disruption for the City and the Tri-Districts and a potential need to convey water in Horsetooth Reservoir (“Horsetooth Water”) to the Horsetooth Water Treatment Plants by a means other than the Soldier Canyon Outlet; and WHEREAS, the City and the Tri-Districts are likewise interested in developing supplemental infrastructure to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants in order to build redundancy and resiliency into their water treatment and delivery systems; and WHEREAS, pursuant to Resolution 2019-055 and the Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water District Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet, dated May 24, 2019 (“Study IGA”), Fort Collins and the Tri-Districts investigated ways to address this water supply disruption and alternative ways to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants; and -2- WHEREAS, following the completion of the study under the Study IGA, the City and the Tri-Districts, in consultation with other stakeholders including Northern Water and the City of Greeley (“Greeley”), have concluded that a project involving the use of existing and some new infrastructure (“Project”) would best address these objectives; and WHEREAS, this Project involves Horsetooth Water being delivered out of Horsetooth Reservoir and into the Charles Hansen Supply Canal, then through a headgate on that canal operated by Greeley at its Bellvue Water Treatment Plant, then through Greeley’s pipes and infrastructure and certain new pipes, then through certain wet wells and pumps, then through new pipes and into the Pleasant Valley Pipeline to the Horsetooth Water Treatment Plants; and WHEREAS, staff from the City, the Tri-Districts, and Northern Water have negotiated an agreement regarding certain aspects of this Project, as set forth in the form of Agreement attached hereto as Exhibit “A,” which primarily concerns the ability of the City and the Tri- Districts to use the Pleasant Valley Pipeline. 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 modifications and additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purposes of this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st day of October, A.D. 2019. _________________________________ Mayor ATTEST: _____________________________ City Clerk Page 1 of 12 AGREEMENT REGARDING A PROJECT FOR A SUPPLEMENTAL MEANS TO DELIVER HORSETOOTH RESERVOIR WATER TO THE FORT COLLINS WATER TREATMENT FACILITY AND SOLIDER CANYON WATER TREATMENT PLANT (City of Fort Collins, the Tri-Districts, and the Northern Colorado Water Conservancy District acting by and through the Pleasant Valley Pipeline Water Activity Enterprise) (Pleasant Valley Pipeline Modifications and Use) This Agreement is entered into by and between the following Parties:  the City of Fort Collins, Colorado, a home rule municipality (“Fort Collins”);  the East Larimer County Water District, a political subdivision of the State of Colorado (“ELCO”);  the Fort Collins-Loveland Water District, a political subdivision of the State of Colorado (“FCLWD”);  the North Weld County Water District, a political subdivision of the State of Colorado (“NWCWD”); and  the Northern Colorado Water Conservancy District (“Northern Water”), a quasi- municipal entity and political subdivision of the State of Colorado, acting by and through the Pleasant Valley Pipeline Water Activity Enterprise (“PVP Enterprise”). ELCO, FCLWD, and NWCWD are collectively referred to as the “Tri-Districts.” RECITALS A. Horsetooth Reservoir is a water storage reservoir that Northern Water operates, which is created by the Soldier Canyon Dam and other infrastructure. The Soldier Canyon Outlet is a pipe and related infrastructure that conveys water from Horsetooth Reservoir under and through Soldier Canyon Dam. B. Water delivered through the Soldier Canyon Outlet is ultimately delivered to, among other locations: Fort Collins’ Water Treatment Facility and the Soldier Canyon Filter Plant, which is owned and operated by the Tri-Districts through the Soldier Canyon Water Treatment Authority (together, “Horsetooth Water Treatment Plants”). C. Northern Water intends to temporarily shut down the Soldier Canyon Outlet during 2020 for approximately 45 to 60 days for inspection, maintenance, and related purposes. This will result in a water supply disruption for Fort Collins and the Tri-Districts and a potential need to convey water in Horsetooth Reservoir (“Horsetooth Water”) to the Horsetooth Water Treatment Plants by a means other than the Soldier Canyon Outlet. D. Fort Collins and the Tri-Districts are likewise interested by developing supplemental infrastructure to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants in order to build redundancy and resiliency into their water treatment and delivery systems. EXHIBIT A Page 2 of 12 Nothing in this Agreement is intended to affect in any way Fort Collins’ and the Tri-Districts’ rights to the Soldier Canyon Outlet. E. Pursuant to the Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water District Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet, dated May 24, 2019 (“Study IGA”), Fort Collins and the Tri-Districts investigated ways to address this water supply disruption and alternative ways to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants. F. Following the completion of the study under the Study IGA, Fort Collins and the Tri- Districts, in consultation with other stakeholders including Northern Water and the City of Greeley (“Greeley”), have concluded that a project involving the use of existing and some new infrastructure (“Project”) would best address these objectives. This Project involves Horsetooth Water being delivered out of Horsetooth Reservoir and into the Charles Hansen Supply Canal, then through a headgate on that canal operated by Greeley at its Bellvue Water Treatment Plant, then through Greeley’s pipes and infrastructure and certain new pipes, then through certain wet wells and pumps, then through new pipes and into the Pleasant Valley Pipeline to the Horsetooth Water Treatment Plants. Exhibit A contains diagrams illustrating the key physical attributes of the Project. G. Northern Water, acting by and through the PVP Enterprise, constructed and operates the Pleasant Valley Pipeline (“PV Pipeline”), which delivers untreated water from the Munroe Canal to the Fort Collins and the Tri-Districts. H. Fort Collins has an Allotment Contract with the PVP Enterprise for capacity in the PV Pipeline, with the original contract dated February 28, 2003, an amendment dated May 30, 2006, and a supplement dated January 20, 2014 (collectively, “Fort Collins Allotment Contract”). I. The Soldier Canyon Water Treatment Authority as successor in interest to the Soldier Canyon Filter Plant has an Allotment Contract with the PVP Enterprise for capacity in the PV Pipeline, with the original contract dated February 28, 2003, an amendment dated October 2, 2012 and supplement dated February 10, 2014 (collectively, “Tri-Districts Allotment Contract”). J. Pursuant to the Fort Collins Allotment Contract and the Tri-Districts Allotment Contract, the PV Pipeline shall only be used for the transmission of certain water, including “District water or Subdistrict water from Horsetooth Reservoir” and “any other water deliverable form Horsetooth Reservoir with the special approval of the Board and the approval of the Secretary of the Interior of the United States of America or his designee (if Secretarial approval is required by law or contract).” K. This Agreement concerns the ability of Fort Collins and the Tri-Districts to use the PV Pipeline in the Project in the short and long-term. L. The Parties acknowledge that implementing the Project will require various additional agreements. Page 3 of 12 M. As governmental entities, the Parties are authorized into enter into the following intergovernmental agreement pursuant to C.R.S. §29-1-203. AGREEMENT 1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as if fully restated in their entirety. 2. USE OF THE PV PIPELINE TO CONVEY HORSETOOTH WATER. The Parties confirm that, under the Fort Collins Allotment Contract and the Tri-Districts Allotment Contract, Fort Collins and the Tri-Districts are entitled to deliver their Horsetooth Water through the PV Pipeline. 3. MODIFICATION OF THE PV PIPELINE. The PVP Enterprise hereby authorizes Fort Collins and the Tri-Districts to modify the PV Pipeline for the Project pursuant to the terms and conditions of this Agreement. With respect to the PV Pipeline, the Project entails cutting the PV Pipeline to add a “T” and a valve such that Horsetooth Water can be delivered from the Charles Hanson Supply Canal and into the PV Pipeline (“PV Pipeline Work”), as shown on Exhibit B. 3.1. Cooperation. Fort Collins, the Tri-Districts, and the PVP Enterprise agree to cooperate in good faith to coordinate the PV Pipeline Work. 3.2. Plans. The PV Pipeline Work shall be completed pursuant to final construction plans. Any other work, materials, equipment or machinery not specifically described or expressly covered herein, but which is required or necessary to perform or complete the PV Pipeline Work, which is contemplated, shall be deemed to be, and is, covered by this Agreement. The Parties agree to confer and coordinate during the development of the construction plans; it shall ultimately be the responsibility of Fort Collins and the Tri- Districts to develop and pay for all costs and expenses related to the construction plans. The construction plans shall not be final until agreed to by Fort Collins, the Tri-Districts, and the PVP Enterprise. 3.3. Permits. Fort Collins and the Tri-Districts shall obtain all necessary consents, authorizations, and permits, and shall perform the PV Pipeline Work in a good and workmanlike manner, in accordance with sound and acceptable industry or professional practices and standards, and in accordance with all applicable laws, rules, regulations, codes, standards, plans, and specifications for the replacement of the work. 3.4. Leakage. Should the PV Pipeline Work result in water seepage or leakage from the PV Pipeline in the two years following the completion of the PV Pipeline Work at a rate greater than what historically occurred before the PV Pipeline Work was performed, Fort Collins and the Tri-Districts shall repair the PV Pipeline as soon as possible to stop the seepage or leakage at a rate greater than what historically occurred before the PV Pipeline Work was performed. Alternatively, by mutual agreement, the PVP Enterprise Page 4 of 12 may perform such repair and Fort Collins and the Tri-Districts shall reimburse the PVP Enterprise for all costs and expenses incurred in repairing the PV Pipeline. 3.5. Construction Schedule. Fort Collins and the Tri-Districts shall provide a written construction schedule for review and approval by the PVP Enterprise at least 28 days prior to the planned start of construction. Fort Collins and the Tri-Districts agree that the PV Pipeline Work shall proceed expeditiously with reasonable diligence from the commencement of construction to its completion. 3.6. Inspections. The PVP Enterprise is permitted to inspect the PV Pipeline Work during construction. Upon completion of the PV Pipeline Work, Fort Collins and the Tri- Districts shall promptly notify the PVP Enterprise, and the Parties shall jointly inspect the PV Pipeline where the work occurred. If there are any deficiencies in the PV Pipeline Work, or any variation from the final construction plans, Fort Collins and the Tri- Districts shall forthwith remedy the same. The PVP Enterprise’s right to inspect the PV Pipeline Work in no way relieves Fort Collins and the Tri-Districts of their liability for improper construction or design. The PVP Enterprise’s inspection is solely for the benefit of the PVP Enterprise and creates no obligation to Fort Collins and the Tri- Districts. 3.7. Ownership. The PVP Enterprise shall retain ownership of the PV Pipeline and the new “T” and valve installed in it under the PV Pipeline Work. 3.8. Temporary License. The PVP Enterprise hereby grants to Fort Collins and the Tri-Districts and their contractors and consultants associated with the Project a temporary license on, over, and across the PV Pipeline to access the structure for the purpose of the PV Pipeline Work. 4. NO FURTHER AMENDMENTS. Except to the extent expressly stated in this Agreement, nothing in this Agreement shall affect the Allotment Contracts of Fort Collins and the Tri-Districts with the PVP Enterprise. 5. FISCAL CONTINGENCY. Notwithstanding any other provisions of this Agreement to the contrary, the obligations of the Parties in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, with the Party having the sole discretion to determine whether the subject funds are sufficient and intended for use under this Agreement. The failure of a Party to appropriate such funds shall be grounds for termination of this Agreement as to such Party upon written notice pursuant to Paragraph 10. 6. REMEDIES. If any Party fails to comply with the provisions of this Agreement, the other Parties, after providing prompt written notification to the noncomplying Party, and upon the failure of the noncomplying Party to achieve compliance within 35 days following receipt of such notice, may seek all such remedies available under Colorado law. 7. 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 Page 5 of 12 beneficiaries of this Agreement and the Parties are only benefitted to the extent provided under the express terms and conditions of this Agreement. 8. 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. 9. 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. 10. NOTICES. All notices or other communications hereunder shall be sufficiently given and shall be deemed given (i) when personally delivered; (ii) on the date and at the time of delivery or refusal of acceptance of delivery if delivered or attempted to be delivered by an overnight courier service to the party to whom notice is given at the address specified below; (iii) on the date and at the time shown on the electronic mail if sent by electronic transmission at the e-mail addresses set forth below and receipt of such electronic mail is acknowledged by the intended recipient thereof; or (iv) after the lapse of five business days following mailing by certified mail-return receipt requested, postage prepaid, addressed as follows: To Fort Collins: City Manager City Hall West 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 With copy to: Fort Collins City Attorney 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 E-mail: epotyondy@fcgov.com and: Fort Collins Utilities Attn: Director of Plant Operations 4316 LaPorte Ave. Fort Collins, Colorado 80521 E-mail: mkempton@fcgov.com To ELCO: East Larimer County Water District Page 6 of 12 Attn: District Manager 232 S. Link Lane (Zip Code: 80524) P.O. Box 2044 Fort Collins, Colorado 80522 Telephone: (970) 493-2044 Email: mikes@elcowater.org With copy to: Hasler, Fonfara and Goddard LLP Attn: Joseph H. Fonfara 125 S. Howes Street, 6th Floor (Zip Code: 80521) P.O. Box 2267 Fort Collins, CO 80522 Telephone: (970) 493-5070 E-mail: JoeF@HFGLawfirm.com To FCLWD: Fort Collins-Loveland Water District Attn: District Manager 5150 Snead Drive Fort Collins, Colorado 80525 Telephone: (970) 226-3104 E-mail: chrism@fclwd.com With copy to: Collins Cockrel & Cole, P.C. Attn: Robert G. Cole 390 Union Boulevard, Ste. 400 Denver, Colorado 80228-1556 Telephone: (303) 218-7197 E-mail: rcole@cccfirm.com To NWCWD: North Weld County Water District Attn: District Manager 32825 CR 39 P.O. Box 56 Lucerne, Colorado 80646 Telephone: (970) 356-3020 E-mail: water@nwcwd.org With copy to: Hasler, Fonfara and Goddard LLP Attn: Joseph H. Fonfara 125 S. Howes Street, 6th Floor (Zip Code: 80521) P.O. Box 2267 Fort Collins, CO 80522 Telephone: (970) 493-5070 E-mail: JoeF@HFGLawfirm.com To Northern and PVP Enterprise: Page 7 of 12 With a copy to: 11. 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. 12. 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. 13. 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. 14. ASSIGNMENT. No Party may assign any rights or delegate any duties under this Agreement without the written consent of all other Parties. 15. SEVERABILITY. If any provision of this Agreement shall prove to be illegal, invalid, unenforceable or impossible of performance, the remainder of this Agreement shall remain in full force and effect. [Remainder of Page Intentionally Blank] Page 8 of 12 CITY OF FORT COLLINS, COLORADO, a home-rule city By: ______________________________________ Date: Darin A. Atteberry, City Manager ATTEST: By: ______________________________________ City Clerk Name: ____________________________________ Title: ____________________________________ APPROVED AS TO LEGAL FORM: By: ______________________________________ Eric R. Potyondy, Assistant City Attorney II Page 9 of 12 EAST LARIMER COUNTY WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Mike Scheid, General Manager Page 10 of 12 FORT COLLINS-LOVELAND WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Chris Matkins, General Manager Page 11 of 12 NORTH WELD COUNTY WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Eric Reckentine, General Manager Page 12 of 12 NORTHERN COLORADO WATER CONSERVANCY DISTRICT, a quasi-municipal entity and political subdivision of the State of Colorado, ACTING BY AND THROUGH THE PLEASANT VALLEY PIPELINE WATER ACTIVITY ENTERPRISE By: ________________________________________ Date: Brad Wind, General Manager -1- RESOLUTION 2019-097 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS, THE EAST LARIMER COUNTY WATER DISTRICT, THE FORT COLLINS-LOVELAND WATER DISTRICT, THE NORTH WELD COUNTY WATER DISTRICT, AND THE CITY OF GREELEY REGARDING A SUPPLEMENTAL MEANS TO DELIVER HORSETOOTH RESERVOIR WATER TO THE FORT COLLINS WATER TREATMENT FACILITY AND SOLIDER CANYON WATER TREATMENT PLANT (GREELEY INFRASTRUCTURE MODIFICATIONS AND USE) WHEREAS, Horsetooth Reservoir is a water storage reservoir operated by the Northern Colorado Water Conservancy District (“Northern Water”), which is created by the Soldier Canyon Dam and other infrastructure; and WHEREAS, the Soldier Canyon Outlet is a pipe and related infrastructure that conveys water from Horsetooth Reservoir under and through Soldier Canyon Dam; and WHEREAS, water delivered through the Soldier Canyon Outlet is ultimately delivered to, among other locations: the City’s Water Treatment Facility and the Soldier Canyon Filter Plant, which is owned and operated by the East Larimer County Water District, the Fort Collins- Loveland Water District, and the North Weld County Water District (collectively, “Tri- Districts”) through the Soldier Canyon Water Treatment Authority (together, “Horsetooth Water Treatment Plants”); and WHEREAS, Northern Water intends to temporarily shut down the Soldier Canyon Outlet during 2020 for approximately 45 to 60 days for inspection, maintenance, and related purposes, which will result in a water supply disruption for the City and the Tri-Districts and a potential need to convey water in Horsetooth Reservoir (“Horsetooth Water”) to the Horsetooth Water Treatment Plants by a means other than the Soldier Canyon Outlet; and WHEREAS, the City and the Tri-Districts are likewise interested in developing supplemental infrastructure to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants in order to build redundancy and resiliency into their water treatment and delivery systems; and WHEREAS, pursuant to Resolution 2019-055 and the Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water District Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet, dated May 24, 2019 (“Study IGA”), Fort Collins and the Tri-Districts investigated ways to address this water supply disruption and alternative ways to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants; and WHEREAS, following the completion of the study under the Study IGA, the City and the Tri-Districts, in consultation with other stakeholders including Northern Water and the City of -2- Greeley (“Greeley”), have concluded that a project involving the use of existing and some new infrastructure (“Project”) would best address these objectives; and WHEREAS, this Project involves Horsetooth Water being delivered out of Horsetooth Reservoir and into the Charles Hansen Supply Canal, then through a headgate on that canal operated by Greeley at its Bellvue Water Treatment Plant, then through Greeley’s pipes and infrastructure and certain new pipes, then through certain wet wells and pumps, then through new pipes and into the Pleasant Valley Pipeline to the Horsetooth Water Treatment Plants; and WHEREAS, staff from the City, the Tri-Districts, and Greeley have negotiated an agreement regarding certain aspects of this Project, as set forth in the form of Agreement attached hereto as Exhibit “A,” which primarily concerns the ability of the City and the Tri- Districts to use certain pipes and other infrastructure owned by Greeley at the Bellvue Water Treatment Plant. 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 modifications and additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purposes of this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st day of October, A.D. 2019. _________________________________ Mayor ATTEST: _____________________________ City Clerk Page 1 of 12 AGREEMENT REGARDING A PROJECT FOR A SUPPLEMENTAL MEANS TO DELIVER HORSETOOTH RESERVOIR WATER TO THE FORT COLLINS WATER TREATMENT FACILITY AND SOLIDER CANYON WATER TREATMENT PLANT (City of Fort Collins, the Tri-Districts, and the City of Greeley) (Greeley Infrastructure Modifications and Use) This Agreement is entered into by and between the following Parties: • the City of Fort Collins, Colorado, a home rule municipality (“Fort Collins”); • the East Larimer County Water District, a political subdivision of the State of Colorado (“ELCO”); • the Fort Collins-Loveland Water District, a political subdivision of the State of Colorado (“FCLWD”); • the North Weld County Water District, a political subdivision of the State of Colorado (“NWCWD”), and • the City of Greeley, a home rule municipality (“Greeley”). ELCO, FCLWD, and NWCWD are collectively referred to as the “Tri-Districts.” RECITALS A. Horsetooth Reservoir is a water storage reservoir operated by the Northern Colorado Water Conservancy District (“Northern Water”), which is created by the Soldier Canyon Dam and other infrastructure. The Soldier Canyon Outlet is a pipe and related infrastructure that conveys water from Horsetooth Reservoir under and through Soldier Canyon Dam. B. Water delivered through the Soldier Canyon Outlet is ultimately delivered to, among other locations: Fort Collins’ Water Treatment Facility and the Soldier Canyon Filter Plant, which is owned and operated by the Tri-Districts through the Soldier Canyon Water Treatment Authority (together, “Horsetooth Water Treatment Plants”). C. Northern Water intends to temporarily shut down the Soldier Canyon Outlet during 2020 for approximately 45 to 60 days for inspection, maintenance, and related purposes. This will result in a water supply disruption for Fort Collins and the Tri-Districts and a potential need to convey water in Horsetooth Reservoir (“Horsetooth Water”) to the Horsetooth Water Treatment Plants by a means other than the Soldier Canyon Outlet. D. Fort Collins and the Tri-Districts are likewise interested by developing supplemental infrastructure to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants in order to build redundancy and resiliency into their water treatment and delivery systems. Nothing in this Agreement is intended to affect in any way Fort Collins’ and the Tri-Districts’ rights to the Soldier Canyon Outlet. EXHIBIT A Page 2 of 12 E. Pursuant to the Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water District Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet, dated May 24, 2019 (“Study IGA”), Fort Collins and the Tri-Districts investigated ways to address this water supply disruption and alternative ways to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants. F. Following the completion of the study under the Study IGA, Fort Collins and the Tri- Districts, in consultation with other stakeholders including Northern Water and the City of Greeley (“Greeley”), have concluded that a project involving the use of existing and some new infrastructure (“Project”) would best address these objectives. This Project involves Horsetooth Water being delivered out of Horsetooth Reservoir and into the Charles Hansen Supply Canal, then through a headgate on that canal operated by Greeley at its Bellvue Water Treatment Plant, then through Greeley’s pipes and infrastructure and certain new pipes, then through certain wet wells and pumps, then through new pipes and into the Pleasant Valley Pipeline to the Horsetooth Water Treatment Plants. Exhibit A contains diagrams illustrating the key physical attributes of the Project. G. This Agreement concerns the ability of Fort Collins and the Tri-Districts to use certain pipes and other infrastructure owned by Greeley at the Bellvue Water Treatment Plant (“Greeley Infrastructure”) in the Project in the short and long-term. H. The Parties acknowledge that implementing the Project will require various additional agreements. I. The Parties acknowledge that implementing the Project may require various additional agreements, including those with Northern Water and potentially others, especially as they pertain to existing infrastructure and the property of others. J. As governmental entities, the Parties are authorized into enter into the following intergovernmental agreement pursuant to C.R.S. §29-1-203. AGREEMENT 1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as if fully restated in their entirety. 2. MODIFICATION OF A GREELEY PIPE. Greeley hereby authorizes Fort Collins and the Tri-Districts to modify one of its pipes for the Project (“Greeley Pipe”) pursuant to the terms and conditions of this Agreement. With respect to the Greeley Pipe, the Project entails cutting the Greeley Pipe to add a “T” and a valve such that Horsetooth Water can be delivered from the Charles Hanson Supply Canal, into the Greeley Infrastructure, and out through the new “T” and valve, and ultimately into the Pleasant Valley Pipeline (“Project Greeley Pipeline Work”), as shown on Exhibit B. Page 3 of 12 2.1. Cooperation. Fort Collins, the Tri-Districts, and Greeley agree to cooperate in good faith to coordinate the Greeley Pipe Work. 2.2. Plans. The Greeley Pipe Work shall be completed pursuant to final construction plans. Any other work, materials, equipment or machinery not specifically described or expressly covered herein, but which is required or necessary to perform or complete the Greeley Pipe Work, which is contemplated, shall be deemed to be, and is, covered by this Agreement. The Parties agree to confer and coordinate during the development of the construction plans; it shall ultimately be the responsibility of Fort Collins and the Tri- Districts to develop and pay for all costs and expenses related to the construction plans. The construction plans shall not be final until agreed to by Fort Collins, the Tri-Districts, and Greeley. 2.3. Permits. Fort Collins and the Tri-Districts shall obtain all necessary consents, authorizations, and permits, and shall perform the Greeley Pipe in a good and workmanlike manner, in accordance with sound and acceptable industry or professional practices and standards, and in accordance with all applicable laws, rules, regulations, codes, standards, plans, and specifications for the work. 2.4. Leakage. Should the Greeley Pipe Work result in water seepage or leakage from the Greeley Pipe in the two years following the completion of the Greeley Pipe Work at a rate greater than what historically occurred before the Greeley Pipe Work was performed, Fort Collins and the Tri-Districts shall repair the Greeley Pipe as soon as possible to stop the seepage or leakage at a rate greater than what historically occurred before the Greeley Pipe Work was performed. Alternatively, by mutual agreement, Greeley may perform such repair and Fort Collins and the Tri-Districts shall reimburse Greeley for all costs and expenses incurred in repairing the Greeley Pipe. 2.5. Construction Schedule. Fort Collins and the Tri-Districts shall provide a written construction schedule for review and approval by Greeley at least 28 days prior to the planned start of construction. Fort Collins and the Tri-Districts agree that the Greeley Pipe Work shall proceed expeditiously with reasonable diligence from the commencement of construction to its completion. 2.6. Inspections. Greeley is permitted to inspect the Greeley Pipe Work during construction. Upon completion of the Greeley Pipe Work, Fort Collins and the Tri- Districts shall promptly notify the PVP Enterprise, and the Parties shall jointly inspect the PV Pipeline where the work occurred. If there are any deficiencies in the Greeley Pipe Work, or any variation from the final construction plans, Fort Collins and the Tri-Districts shall forthwith remedy the same. Greeley’s right to inspect the Greeley Pipe Work in no way relieves Fort Collins and the Tri-Districts of their liability for improper construction or design. Greeley’s inspection is solely for the benefit of Greeley and creates no obligation to Fort Collins and the Tri-Districts. 2.7. Ownership. Greeley shall retain ownership of the Greeley Pipe and the new “T” and value installed in it under the Greeley Pipe Work. Page 4 of 12 2.8. Temporary License. Greeley hereby grants to Fort Collins and the Tri-Districts and their contractors and consultants associated with the Project a temporary license on, over, and across the Greeley Pipe to access the structure for the purpose of the Greeley Pipe Work. 3. LICENSE TO USE GREELEY INFRASTRUCTURE. Greeley hereby grants to Fort Collins and the Tri-Districts a license to use the Greeley Infrastructure to convey Horsetooth Water through the Greeley Infrastructure, as modified under this Agreement, to the Horsetooth Water Treatment Plants. 4. GREELEY’S DELAYED USE OF THE PLEASANT VALLEY PIPELINE IN 2020 OR 2021. Greeley generally uses the Soldier Canyon Outlet and the Pleasant Valley Pipeline to deliver its Horsetooth Water to its Bellvue Water Treatment Plant from November 1st through March 31st. However, Northern’s temporary shutdown the Soldier Canyon Outlet will run into November 2020 or November 2021, thus precluding Greeley’s use of the Soldier Canyon Outlet and the Pleasant Valley Pipeline during that time. Greeley agrees that Fort Collins and the Tri- Districts may use the Pleasant Valley Pipeline to convey their Horsetooth Water. Except to the extent expressly stated in this Agreement, nothing herein shall affect the Agreement for Use of Capacity in Soldier Canyon Dam Outlet Works, dated December 27, 2000, between Fort Collins and Greeley. 5. COMPENSATION. ____________. 6. OPERATIONS. The Parties desire to generally minimize the use of the New Infrastructure and the associated costs. The Parties shall confer as frequently as necessary before and during that period regarding the timing and amount of use of the New Infrastructure. If that the New Infrastructure needs to be used, the operations and maintenance of the New Infrastructure will be performed jointly by the City, the Tri-Districts, and Greeley through their respective staff and representatives. 7. FISCAL CONTINGENCY. Notwithstanding any other provisions of this Agreement to the contrary, the obligations of the Parties in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, with the Party having the sole discretion to determine whether the subject funds are sufficient and intended for use under this Agreement. The failure of a Party to appropriate such funds shall be grounds for termination of this Agreement as to such Party upon written notice pursuant to Paragraph 12. 8. REMEDIES. If any Party fails to comply with the provisions of this Agreement, the other Parties, after providing prompt written notification to the noncomplying Party, and upon the failure of the noncomplying Party to achieve compliance within 35 days following receipt of such notice, may seek all such remedies available under Colorado law. 9. 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 Page 5 of 12 beneficiaries of this Agreement and the Parties are only benefitted to the extent provided under the express terms and conditions of this Agreement. 10. 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. 11. 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. 12. NOTICES. All notices or other communications hereunder shall be sufficiently given and shall be deemed given (i) when personally delivered; (ii) on the date and at the time of delivery or refusal of acceptance of delivery if delivered or attempted to be delivered by an overnight courier service to the party to whom notice is given at the address specified below; (iii) on the date and at the time shown on the electronic mail if sent by electronic transmission at the e-mail addresses set forth below and receipt of such electronic mail is acknowledged by the intended recipient thereof; or (iv) after the lapse of five business days following mailing by certified mail-return receipt requested, postage prepaid, addressed as follows: To Fort Collins: City Manager City Hall West 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 With copy to: Fort Collins City Attorney 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 E-mail: epotyondy@fcgov.com and: Fort Collins Utilities Attn: Director of Plant Operations 4316 LaPorte Ave. Fort Collins, Colorado 80521 E-mail: mkempton@fcgov.com To ELCO: East Larimer County Water District Attn: District Manager Page 6 of 12 232 S. Link Lane (Zip Code: 80524) P.O. Box 2044 Fort Collins, Colorado 80522 Telephone: (970) 493-2044 Email: mikes@elcowater.org With copy to: Hasler, Fonfara and Goddard LLP Attn: Joseph H. Fonfara 125 S. Howes Street, 6th Floor (Zip Code: 80521) P.O. Box 2267 Fort Collins, CO 80522 Telephone: (970) 493-5070 E-mail: JoeF@HFGLawfirm.com To FCLWD: Fort Collins-Loveland Water District Attn: District Manager 5150 Snead Drive Fort Collins, Colorado 80525 Telephone: (970) 226-3104 E-mail: chrism@fclwd.com With copy to: Collins Cockrel & Cole, P.C. Attn: Robert G. Cole 390 Union Boulevard, Ste. 400 Denver, Colorado 80228-1556 Telephone: (303) 218-7197 E-mail: rcole@cccfirm.com To NWCWD: North Weld County Water District Attn: District Manager 32825 CR 39 P.O. Box 56 Lucerne, Colorado 80646 Telephone: (970) 356-3020 E-mail: water@nwcwd.org With copy to: Hasler, Fonfara and Goddard LLP Attn: Joseph H. Fonfara 125 S. Howes Street, 6th Floor (Zip Code: 80521) P.O. Box 2267 Fort Collins, CO 80522 Telephone: (970) 493-5070 E-mail: JoeF@HFGLawfirm.com To Greeley: Greeley Water and Sewer Department Attn: Deputy Director of Water Resources Page 7 of 12 1001 11th Avenue, Second Floor Greeley, Colorado 80631 With copy to: Greeley City Attorney’s Office Attn: Environmental and Water Resources 1100 10th Street, Suite 401 Greeley, Colorado 80631 daniel.biwer@greeleygov.com 13. 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. 14. 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. 15. 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. 16. ASSIGNMENT. No Party may assign any rights or delegate any duties under this Agreement without the written consent of all other Parties. 17. SEVERABILITY. If any provision of this Agreement shall prove to be illegal, invalid, unenforceable or impossible of performance, the remainder of this Agreement shall remain in full force and effect. [Remainder of Page Intentionally Blank] Page 8 of 12 CITY OF FORT COLLINS, COLORADO, a home-rule city By: ______________________________________ Date: Darin A. Atteberry, City Manager ATTEST: By: ______________________________________ City Clerk Name: ____________________________________ Title: ____________________________________ APPROVED AS TO LEGAL FORM: By: ______________________________________ Eric R. Potyondy, Assistant City Attorney II Page 9 of 12 EAST LARIMER COUNTY WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Mike Scheid, General Manager Page 10 of 12 FORT COLLINS-LOVELAND WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Chris Matkins, General Manager Page 11 of 12 NORTH WELD COUNTY WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Eric Reckentine, General Manager Page 12 of 12 CITY OF GREELEY, COLORADO, a home rule municipality By: ________________________________________ Date: Roy Otto, City Manager AS TO LEGAL FORM: By: ________________________________________ City Attorney’s Office -1- RESOLUTION 2019-098 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS, THE EAST LARIMER COUNTY WATER DISTRICT, THE FORT COLLINS-LOVELAND WATER DISTRICT, AND THE NORTH WELD COUNTY WATER DISTRICT REGARDING A SUPPLEMENTAL MEANS TO DELIVER HORSETOOTH RESERVOIR WATER TO THE FORT COLLINS WATER TREATMENT FACILITY AND SOLIDER CANYON WATER TREATMENT PLANT (PROJECT WORK – NEW INFRASTRUCTURE – NEW PROPERTY RIGHTS) WHEREAS, Horsetooth Reservoir is a water storage reservoir operated by the Northern Colorado Water Conservancy District (“Northern Water”), which is created by the Soldier Canyon Dam and other infrastructure; and WHEREAS, the Soldier Canyon Outlet is a pipe and related infrastructure that conveys water from Horsetooth Reservoir under and through Soldier Canyon Dam; and WHEREAS, water delivered through the Soldier Canyon Outlet is ultimately delivered to, among other locations: the City’s Water Treatment Facility and the Soldier Canyon Filter Plant, which is owned and operated by the East Larimer County Water District, the Fort Collins- Loveland Water District, and the North Weld County Water District (collectively, “Tri- Districts”) through the Soldier Canyon Water Treatment Authority (together, “Horsetooth Water Treatment Plants”); and WHEREAS, Northern Water intends to temporarily shut down the Soldier Canyon Outlet during 2020 for approximately 45 to 60 days for inspection, maintenance, and related purposes, which will result in a water supply disruption for the City and the Tri-Districts and a potential need to convey water in Horsetooth Reservoir (“Horsetooth Water”) to the Horsetooth Water Treatment Plants by a means other than the Soldier Canyon Outlet; and WHEREAS, the City and the Tri-Districts are likewise interested in developing supplemental infrastructure to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants in order to build redundancy and resiliency into their water treatment and delivery systems; and WHEREAS, pursuant to Resolution 2019-055 and the Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water District Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet, dated May 24, 2019 (“Study IGA”), Fort Collins and the Tri-Districts investigated ways to address this water supply disruption and alternative ways to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants; and WHEREAS, following the completion of the study under the Study IGA, the City and the Tri-Districts, in consultation with other stakeholders including Northern Water and the City of -2- Greeley (“Greeley”), have concluded that a project involving the use of existing and some new infrastructure (“Project”) would best address these objectives; and WHEREAS, this Project involves Horsetooth Water being delivered out of Horsetooth Reservoir and into the Charles Hansen Supply Canal, then through a headgate on that canal operated by Greeley at its Bellvue Water Treatment Plant, then through Greeley’s pipes and infrastructure and certain new pipes, then through certain wet wells and pumps, then through new pipes and into the Pleasant Valley Pipeline to the Horsetooth Water Treatment Plants; and WHEREAS, staff from the City and the Tri-Districts have negotiated an agreement regarding certain aspects of this Project, as set forth in the form of Agreement attached hereto as Exhibit “A,” which primarily concerns rights and responsibilities of the City and the Tri-Districts related to the design and construction work for this Project and rights and responsibilities of Fort Collins and the Tri-Districts related to the ownership, operation, and maintenance of certain infrastructure and property rights related to the Project. 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 modifications and additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purposes of this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st day of October, A.D. 2019. _________________________________ Mayor ATTEST: _____________________________ City Clerk Page 1 of 11 AGREEMENT REGARDING A PROJECT FOR A SUPPLEMENTAL MEANS TO DELIVER HORSETOOTH RESERVOIR WATER TO THE FORT COLLINS WATER TREATMENT FACILITY AND SOLIDER CANYON WATER TREATMENT PLANT (City of Fort Collins and the Tri-Districts) (Project Work – New Infrastructure – New Property Rights) This Agreement is entered into by and between the following Parties: • the City of Fort Collins, Colorado, a home rule municipality (“Fort Collins”); • the East Larimer County Water District, a political subdivision of the State of Colorado (“ELCO”); • the Fort Collins-Loveland Water District, a political subdivision of the State of Colorado (“FCLWD”); and • the North Weld County Water District, a political subdivision of the State of Colorado (“NWCWD”). ELCO, FCLWD, and NWCWD are collectively referred to as the “Tri-Districts.” RECITALS A. Horsetooth Reservoir is a water storage reservoir operated by the Northern Colorado Water Conservancy District (“Northern Water”), which is created by the Soldier Canyon Dam and other infrastructure. The Soldier Canyon Outlet is a pipe and related infrastructure that conveys water from Horsetooth Reservoir under and through Soldier Canyon Dam. B. Water delivered through the Soldier Canyon Outlet is ultimately delivered to, among other locations: Fort Collins’ Water Treatment Facility and the Soldier Canyon Filter Plant, which is owned and operated by the Tri-Districts through the Soldier Canyon Water Treatment Authority (together, “Horsetooth Water Treatment Plants”). C. Northern Water intends to temporarily shut down the Soldier Canyon Outlet during 2020 for approximately 45 to 60 days for inspection, maintenance, and related purposes. This will result in a water supply disruption for Fort Collins and the Tri-Districts and a potential need to convey water in Horsetooth Reservoir (“Horsetooth Water”) to the Horsetooth Water Treatment Plants by a means other than the Soldier Canyon Outlet. D. Fort Collins and the Tri-Districts are likewise interested by developing supplemental infrastructure to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants in order to build redundancy and resiliency into their water treatment and delivery systems. Nothing in this Agreement is intended to affect in any way Fort Collins’ and the Tri-Districts’ rights to the Soldier Canyon Outlet. E. Pursuant to the Agreement Between the City of Fort Collins, the East Larimer County Water District, the Fort Collins-Loveland Water District, and the North Weld County Water EXHIBIT A Page 2 of 11 District Regarding a Study Related to a Temporary Shutdown of the Horsetooth Reservoir Soldier Canyon Outlet, dated May 24, 2019 (“Study IGA”), Fort Collins and the Tri-Districts investigated ways to address this water supply disruption and alternative ways to deliver their Horsetooth Water to the Horsetooth Water Treatment Plants. F. Following the completion of the study under the Study IGA, Fort Collins and the Tri- Districts, in consultation with other stakeholders including Northern Water and the City of Greeley (“Greeley”), have concluded that a project involving the use of existing and some new infrastructure (“Project”) would best address these objectives. This Project involves Horsetooth Water being delivered out of Horsetooth Reservoir and into the Charles Hansen Supply Canal, then through a headgate on that canal operated by Greeley at its Bellvue Water Treatment Plant, then through Greeley’s pipes and infrastructure and certain new pipes, then through certain wet wells and pumps, then through new pipes and into the Pleasant Valley Pipeline to the Horsetooth Water Treatment Plants. Exhibit A contains diagrams illustrating the key physical attributes of the Project. G. This Agreement concerns rights and responsibilities of Fort Collins and the Tri-Districts related to the design and construction work for this Project (“Project Work”). Fort Collins will retain a contractor (“Contractor”) to perform the Project Work. Fort Collins currently intends to retain as the Contractor an on-call contractor that Fort Collins already has under contract. If this on-call contractor cannot be utilized, the City will issue a request for proposals to select another Contractor. The selection committee for the Contractor will include City and Tri-Districts personnel. The Tri-Districts will reimburse Fort Collins for their portion of the Project Work as described below. H. This Agreement also concerns rights and responsibilities of Fort Collins and the Tri- Districts related to the ownership, operation, and maintenance of certain infrastructure and property rights related to the Project (defined and described below as “New Infrastructure” and “New Property Rights”). I. The Parties acknowledge that implementing the Project will require various additional agreements. J. As governmental entities, the Parties are authorized into enter into the following intergovernmental agreement pursuant to C.R.S. §29-1-203. AGREEMENT 1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as if fully restated in their entirety. 2. PROJECT WORK. 2.1. The Scope of the Project Work. The Parties will meet with the Consultant to jointly develop the scope of the Project Work to be completed (“Scope”), which shall include a total cost estimate for the Project Work and a proportional allocation of costs to Page 3 of 11 each Party based on the amount of the Project Work attributed to each Party’s needs. The Scope shall also identify, in detail, the New Infrastructure and New Property Rights that are required for the Project. Before the Consultant begins the Project Work under the Scope, each of the Parties shall confirm in writing (such as by email or otherwise) that the Scope is acceptable. 2.2. Cooperation with the Project Work. The Tri-Districts agree to cooperate in good faith with Fort Collins and the Consultant for the Project Work, including: developing the Scope; reviewing and providing comments on drafts designs and plans generated by the Consultant; and providing information needed to complete the Project Work to the Consultant, in a timely manner. Fort Collins agrees to work in good faith to ensure that the Tri-Districts have a meaningful opportunity to review, supervise, and provide comments. 2.3. Reimbursement to Fort Collins. Each of the Tri-Districts shall pay Fort Collins for that district’s portion of the Project Work as set forth in the agreed-upon Scope within 45 days of receiving an invoice from Fort Collins for the same. Each of the Tri-Districts shall submit payment to Fort Collins Utilities (attn: Lance Smith and Phil Ladd), 700 Wood Street (P.O. Box 580) Fort Collins, Colorado 80522-0580. 3. NEW INFRASTRUCTURE. The Project will require certain new infrastructure, including pipes, wet wells, and pumps (collectively, “New Infrastructure”), as identified in the Scope. Greeley has, and as will be at forth in a separate agreement, require ownership of any new values or connections on its pipes, which will thus not be New Infrastructure under this Agreement. Northern Water, acting by and through the Pleasant Valley Pipeline Water Activity Enterprise, likewise has, and as will be at forth in a separate agreement, require ownership of any new values or connections on the Pleasant Valley Pipeline, which will this not be New Infrastructure under this Agreement. 3.1. Ownership and Capacity of the New Infrastructure. The Parties shall jointly own the New Infrastructure, with such ownership being: Fort Collins (__%); ELCO (__%); FCLWD (__%); NWCWD (__%). Each Party shall be entitled to use a portion of the New Infrastructure up to its pro-rata ownership. To the extent that a Party does not need to use its full capacity in the New Infrastructure, the other Parties may use such capacity proportionate to their ownership of the New Infrastructure. 3.2. Costs Associated with the New Infrastructure. 3.2.1. Each of the Tri-Districts shall pay Fort Collins for that district’s portion of the initial construction costs associated with the New Infrastructure as part of the Project Work, pursuant to Paragraph 2.3. 3.2.2. The City and the Tri-Districts shall jointly maintain the New Infrastructure during the period when Northern Water temporarily shuts down the Soldier Canyon Outlet during 2020. To the extent that there are monetary costs associated with such maintenance, the City shall pay for such costs and be reimbursed by the Tri- Page 4 of 11 Districts. Maintenance costs (including any repair and replacement costs) associated with the New Infrastructure shall be shared by the Parties pro-rata based on their ownership identified in Paragraph 3.1. Each of the Tri-Districts shall pay Fort Collins for that district’s portion of the maintenance costs within 45 days of receiving an invoice from Fort Collins for the same. Each of the Tri-Districts shall submit payment to Fort Collins Utilities (attn: Lance Smith and Phil Ladd), 700 Wood Street (P.O. Box 580) Fort Collins, Colorado 80522-0580. 3.2.3. The City shall jointly operate the New Infrastructure during the period when Northern Water temporarily shuts down the Soldier Canyon Outlet during 2020. To the extent that there are monetary costs associated with such operation, the City shall pay for such costs and be reimbursed by the Tri-Districts identified in Paragraph 3.1. Operational costs (including pumping costs) associated with the New Infrastructure shall be allocated based on the amount of Horsetooth Water each Party delivers through the New Infrastructure. Each of the Tri-Districts shall pay Fort Collins for that district’s portion of the maintenance costs within 45 days of receiving an invoice from Fort Collins for the same. Each of the Tri-Districts shall submit payment to Fort Collins Utilities (attn: Lance Smith and Phil Ladd), 700 Wood Street (P.O. Box 580) Fort Collins, Colorado 80522-0580. 4. NEW PROPERTY RIGHTS. In order to construct, operate, and maintain the New Infrastructure, easements and other property rights (“New Property Rights”) will be required, as identified in the Scope. 4.1. Ownership of the New Property Rights. The Parties shall jointly own the New Property Rights, with such ownership being: Fort Collins (__%); ELCO (__%); FCLWD (__%); NWCWD (__%). 4.2. Costs Associated with the New Property Rights. Costs associated with the New Property Rights (including acquisition costs) shared by the Parties pro-rata based on their ownership. 4.3. Reimbursement to Fort Collins. Each of the Tri-Districts shall pay Fort Collins for that district’s portion of the New Property Rights as set forth in the agreed-upon Scope within 45 days of receiving an invoice from Fort Collins for the same. Each of the Tri- Districts shall submit payment to Fort Collins Utilities (attn: Lance Smith and Phil Ladd), 700 Wood Street (P.O. Box 580) Fort Collins, Colorado 80522-0580. 5. OPERATIONS. The Parties desire to generally minimize the use of the New Infrastructure and the associated costs during period when Northern Water temporarily shuts down the Soldier Canyon Outlet during 2020. The Parties shall confer as frequently as necessary before and during that period regarding the timing and amount of use of the New Infrastructure. If that the New Infrastructure needs to be used during period when Northern Water temporarily shuts down the Soldier Canyon Outlet during 2020, the operations and maintenance of the New Infrastructure will be performed jointly by the City and the Tri-Districts through their respective staff and representatives. Page 5 of 11 6. DECISION-MAKING. Decisions related to the Project Work, New Infrastructure, New Property Rights, and Operations shall operate by consensus among the Parties. To this end, the Parties shall make a good faith effort to reach consensus, propose alternative solutions, and otherwise work to resolve any issues that prevent consensus. The Parties’ actions and decisions shall be guided by the Parties’ individual and collective desire to deliver a reliable supply of high- quality water to the Horsetooth Water Treatment Plants at a reasonable cost to the Parties’ respective ratepayers. 7. FISCAL CONTINGENCY. Notwithstanding any other provisions of this Agreement to the contrary, the obligations of the Parties in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, with the Party having the sole discretion to determine whether the subject funds are sufficient and intended for use under this Agreement. The failure of a Party to appropriate such funds shall be grounds for termination of this Agreement as to such Party upon written notice pursuant to Paragraph 12. 8. REMEDIES. If any Party fails to comply with the provisions of this Agreement, the other Parties, after providing prompt written notification to the noncomplying Party, and upon the failure of the noncomplying Party to achieve compliance within 35 days following receipt of such notice, may seek all such remedies available under Colorado law. 9. 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. 10. 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. 11. 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. 12. NOTICES. All notices or other communications hereunder shall be sufficiently given and shall be deemed given (i) when personally delivered; (ii) on the date and at the time of delivery or refusal of acceptance of delivery if delivered or attempted to be delivered by an overnight courier service to the party to whom notice is given at the address specified below; (iii) on the date and at Page 6 of 11 the time shown on the electronic mail if sent by electronic transmission at the e-mail addresses set forth below and receipt of such electronic mail is acknowledged by the intended recipient thereof; or (iv) after the lapse of five business days following mailing by certified mail-return receipt requested, postage prepaid, addressed as follows: To Fort Collins: City Manager City Hall West 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 With copy to: Fort Collins City Attorney 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 E-mail: epotyondy@fcgov.com and: Fort Collins Utilities Attn: Director of Plant Operations 4316 LaPorte Ave. Fort Collins, Colorado 80521 E-mail: mkempton@fcgov.com To ELCO: East Larimer County Water District Attn: District Manager 232 S. Link Lane (Zip Code: 80524) P.O. Box 2044 Fort Collins, Colorado 80522 Telephone: (970) 493-2044 Email: mikes@elcowater.org With copy to: Hasler, Fonfara and Goddard LLP Attn: Joseph H. Fonfara 125 S. Howes Street, 6th Floor (Zip Code: 80521) P.O. Box 2267 Fort Collins, CO 80522 Telephone: (970) 493-5070 E-mail: JoeF@HFGLawfirm.com To FCLWD: Fort Collins-Loveland Water District Attn: District Manager 5150 Snead Drive Fort Collins, Colorado 80525 Telephone: (970) 226-3104 E-mail: chrism@fclwd.com With copy to: Collins Cockrel & Cole, P.C. Attn: Robert G. Cole Page 7 of 11 390 Union Boulevard, Ste. 400 Denver, Colorado 80228-1556 Telephone: (303) 218-7197 E-mail: rcole@cccfirm.com To NWCWD: North Weld County Water District Attn: District Manager 32825 CR 39 P.O. Box 56 Lucerne, Colorado 80646 Telephone: (970) 356-3020 E-mail: water@nwcwd.org With copy to: Hasler, Fonfara and Goddard LLP Attn: Joseph H. Fonfara 125 S. Howes Street, 6th Floor (Zip Code: 80521) P.O. Box 2267 Fort Collins, CO 80522 Telephone: (970) 493-5070 E-mail: JoeF@HFGLawfirm.com 13. 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. 14. 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. 15. 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. 16. ASSIGNMENT. No Party may assign any rights or delegate any duties under this Agreement without the written consent of all other Parties. 17. SEVERABILITY. If any provision of this Agreement shall prove to be illegal, invalid, unenforceable or impossible of performance, the remainder of this Agreement shall remain in full force and effect. Page 8 of 11 CITY OF FORT COLLINS, COLORADO, a home-rule city By: ______________________________________ Date: Darin A. Atteberry, City Manager ATTEST: By: ______________________________________ City Clerk Name: ____________________________________ Title: ____________________________________ APPROVED AS TO LEGAL FORM: By: ______________________________________ Eric R. Potyondy, Assistant City Attorney II Page 9 of 11 EAST LARIMER COUNTY WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Mike Scheid, General Manager Page 10 of 11 FORT COLLINS-LOVELAND WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Chris Matkins, General Manager Page 11 of 11 NORTH WELD COUNTY WATER DISTRICT, a political subdivision of the State of Colorado By: ________________________________________ Date: Eric Reckentine, General Manager