HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/01/2019 - RESOLUTION 2019-095 AUTHORIZING THE CITY MANAGER TAgenda Item 8
Item # 8 Page 1
AGENDA ITEM SUMMARY October 1, 2019
City Council
STAFF
Mark Kempton, Water Production Manager
Eric Potyondy, Legal
SUBJECT
Resolution 2019-095 Authorizing the City Manager to Execute an Agreement Regarding Use of the Munroe
Canal.
EXECUTIVE SUMMARY
The purpose of this item is to approve execution of an agreement between the City of Fort Collins, through Fort
Collins Utilities, and multiple other parties regarding operations of the Munroe Canal that supplies water to Fort
Collins Utilities via the Pleasant Valley Pipeline. The agreement mainly outlines roles and responsibilities
among these parties that have been vague since pipeline operations started in 2003 and will greatly improve
future operations, but also includes reasonable payments to the North Poudre Irrigation Company for its
operational efforts.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
The City of Fort Collins, through Fort Collins Utilities, along with the East Larimer County, Fort Collins-
Loveland and North Weld County Water Districts (“Districts”) and the City of Greeley, finished construction of
the Pleasant Valley Pipeline (“PVP”) in 2003. The PVP is one of two pipelines that the City uses to delivers
Poudre River water to the City’s water treatment facility.
The City’s and Districts’ Poudre River water delivered via the PVP must first go through the Munroe Canal,
which is owned by Northern Water and operated by the North Poudre Irrigation Company (NPIC).The Munroe
Canal has a capacity of about 250 cubic feet per second (cfs) that was originally built to deliver water to
various NPIC shareholders. The Munroe Canal frequently has excess capacity to deliver water to the PVP for
the City and Districts, but only during April through October.
The PVP was also built to deliver Horsetooth Reservoir water to Greeley’s water treatment plant near the
mouth of the Poudre River canyon during November through March.
The City and Districts have used the PVP since 2003 via an agreement with Northern Water dated February
28, 2003, which allows the use of up to 93 cfs each for the City and Districts. However, there was not an
agreement with NPIC on the operational aspects of delivering that water. Also, NPIC operates the Munroe
Canal via an agreement with Northern Water that allows them to seek reimbursement for any increased costs
of operating and maintenance of the Munroe Canal caused by the diversion and carriage of water by the City
and Districts.
Agenda Item 8
Item # 8 Page 2
The proposed agreement (Exhibit A to Resolution 2019-095) defines terms and conditions of water delivery
through the Munroe Canal to the PVP between NPIC, the City and the Districts, and defines reimbursement to
NPIC for its operational efforts. The following are key terms and conditions in the proposed agreement:
• Term (period) of Agreement:
o 5-year term
o Automatic renewal of additional 5-years (unless any party wishes to terminate)
o Intention to complete long-term agreement following these initial periods
• Excess Capacity Defined:
o NPIC gets first right to use any/all capacity (~250 cfs) in the Munroe
▪ NPIC rarely uses full capacity, leaving room for City and Districts
o Remaining “Excess Capacity” available to City and Districts
▪ Up to 93 cfs each (capacity for each in PVP, which has 186 cfs capacity)
▪ If Excess Capacity is limited, shared equally between City and Districts
• Canal Operations:
o City and Districts will submit an annual operations plan by March 1 each year
o Meetings between all parties will occur before and after each running season
• Financial Considerations:
o NPIC will deliver water to the City and Districts at no charge during times water was is also being
delivered to other NPIC shareholders
▪ NPIC could ask for compensation during these times, but must provide evidence of the need for
such compensation
o NPIC will charge $2,100 per month ($70 per day) for delivering water to the City and Districts during
times they are not delivering to other NPIC shareholders
▪ These costs will be shared by City and Districts
▪ Costs cannot be raised more than 10 percent over prior years fees without providing evidence of
the need for such increase
CITY FINANCIAL IMPACTS
It is estimated under current operations that the payments to NPIC will be about $1,000 per year. This cost
could vary each year depending on the City’s operational needs, but likely not exceed more than $3,000 per
year. This cost will be paid for out of the City’s Water Treatment Facility annual operating budget, which is
approximately $4.5 million per year.
BOARD / COMMISSION RECOMMENDATION
On September 19, 2019, the Water Board voted unanimously to recommend approval of the subject
agreement. (Attachment 1)
ATTACHMENTS
1. Water Board Minutes, September 19, 2019 (Draft) (PDF)
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
Agreement Regarding the Use of the Munroe Canal
(Attachments available upon request)
Water Resources Manager Donnie Dustin summarized the history of the canal and the
proposed agreement between the City of Fort Collins, through Fort Collins Utilities, and
multiple other parties regarding operations of the Munroe Canal that supplies water to
Utilities via the Pleasant Valley Pipeline (PVP). The agreement outlines roles and
responsibilities among these parties that have been vague since PVP operations
started in 2003 and will greatly improve future operations, and also includes reasonable
payments to the North Poudre Irrigation Company for their operational efforts.
Discussion Highlights: Board members requested clarification on a few details of the
agreement.
Board Member Phyllis Ortman moved that the Water Board recommend City Council
adopt the resolution authorizing the City Manager to execute an agreement between
the City of Fort Collins, North Poudre Irrigation Company, the East Larimer County
Water District, the Fort Collins-Loveland Water District, and the North Weld County
Water District regarding operations of the Munroe Canal Diversion Structure.
Board Member Jim Kuiken seconded the motion.
Discussion on the Motion: None
Vote on the Motion: it passed unanimously, 8-0
ATTACHMENT 1
-1-
RESOLUTION 2018-095
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT REGARDING
USE OF THE MUNROE CANAL
WHEREAS, the Munroe Canal (also known as the North Poudre Supply Canal) diverts
water from the Cache la Poudre River upstream of the canyon mouth and delivers water to,
among other locations, the Pleasant Valley Pipeline for delivery to the City’s Water Treatment
Facility; and
WHEREAS, various other entities also have interests in the Munroe Canal, including: the
Northern Colorado Water Conservancy District (“Northern Water”), which owns the Munroe
Canal; the North Poudre Irrigation Company (“North Poudre”), which operates and maintains the
Munroe Canal pursuant to agreements with Northern Water and uses it to deliver water to
shareholders; and the East Larimer County Water District, the Fort Collins-Loveland Water
District, and the North Weld County Water District (collectively, “Tri-Districts”), which, like the
City, use the Munroe Canal and the Pleasant Valley Pipeline to deliver water to their Soldier
Canyon Filter Plant; and
WHEREAS, the City, North Poudre, and the Tri-Districts (collectively, “Parties”) each
run water through the Munroe Canal but have not had an agreement to clarify various operational
aspects the Parties’ use of the Munroe Canal; and
WHEREAS, clarifying operations of the Munroe Canal will benefit ratepayers of the
City’s water utility by, among other reasons, improving the reliability of the Munroe Canal, and
reducing the risk of future disagreements and potential water supply disruptions and additional
costs; and
WHEREAS, staff from the Parties have negotiated an agreement regarding operations of
the Munroe Canal, as set for the in draft Agreement attached hereto as Exhibit “A.”
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.
-2-
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
AGREEMENT BETWEEN THE NORTH POUDRE IRRIGATION COMPANY AND THE CITY OF
FORT COLLINS, THE FORT COLLINS – LOVELAND WATER DISTRICT, THE EAST LARIMER
COUNTY WATER DISTRICT AND THE NORTH WELD COUNTY WATER DISTRICT REGARDING
USE OF THE MUNROE CANAL
1. PARTIES. The parties to this Agreement are the North Poudre Irrigation Company (the
“Company”), a Colorado mutual ditch and reservoir company; and the City of Fort Collins, a
Colorado municipal corporation with home-rule authority (“Fort Collins”), the Fort Collins –
Loveland Water District, the East Larimer County Water District and the North Weld County
Water District (each of the three water districts are collectively referred to herein as the “Tri-
Districts”), each of which is a political subdivision and a public corporation of the State of
Colorado. The Company, Fort Collins and the Tri-Districts are referred to herein collectively
as the “Parties”.
2. RECITALS AND PURPOSE.
WHEREAS, pursuant to the Company’s 1945 Petition and Order from the Northern Colorado
Water Conservancy District (“Northern Water”), the Company has certain rights to use the
North Poudre Supply Canal and Diversion Works (the “Munroe Gravity Canal”);
WHEREAS, the Company’s rights to use the Munroe Gravity Canal and its obligations to
operate and maintain it were further defined in the December 9, 1987 Operating Agreement
between the Company and Northern Water;
WHEREAS, the United States of America, acting by and through the Bureau of Reclamation,
conveyed by Quitclaim Deed dated November 8, 2002 to Northern Water, among other real
property, the Munroe Gravity Canal;
WHEREAS, the Company’s rights to use and its obligations to operate and maintain the
Munroe Gravity Canal were further defined in the February 11, 2005 Amendment to
Operating Agreement between the Company and Northern Water;
WHEREAS, the Company’s right to use and its obligations to operate and maintain the
Munroe Gravity Canal, specifically includes that portion of the Munroe Gravity Canal
commencing from the canal’s diversion structure off of the Cache la Poudre River to the
turnout structure for the Pleasant Valley Pipeline (“PVP”) as each is depicted on Figure No. 1
hereto (this portion of the Canal including the turn-out structure shall be hereinafter defined
as the “PVP Reach”);
WHEREAS, Fort Collins entered into a series of agreements with Northern Water, acting by
and through the Pleasant Valley Pipeline Water Activity Enterprise, including an interim
agreement, dated May 18, 1999, an allotment contract, dated February 28, 2002, an
amendment to the allotment contract dated May 30, 2006 and a supplement to the
allotment contract dated January 1, 2014;
EXHIBIT A
2
WHEREAS, the Tri-Districts, acting collectively through the Soldier Canyon Filter Plant, a
political subdivision and public corporation of the State of Colorado, entered into a series of
agreements with Northern Water, acting by and through the Pleasant Valley Pipeline Water
Activity Enterprise, including an allotment contract, dated February 28, 2003 and an
amendment to the allotment contract dated October 2, 2012;
WHEREAS, pursuant to their respective allotment contracts with Northern Water, Fort Collins
and the Tri-Districts each obtained a perpetual right to utilize up to 93 cfs in the Munroe
Gravity Canal and its diversion works to deliver water to the PVP to the extent that the
capacity is not necessary for delivery of water for the Company under and pursuant to the
rights granted to the Company in its 1945 Petition and Order from Northern Water;
WHEREAS, pursuant to their respective allotment contracts with Northern Water, Fort
Collins’ and the Tri-Districts’ rights to utilize up to 93 cfs in the Munroe Gravity Canal and its
diversion works for delivery to the PVP are co-equal in terms of priority;
WHEREAS, the February 11, 2005 Amendment to Operating Agreement between the
Company and Northern Water permits the Company to enter into agreements with allottees
of capacity in the PVP, like Fort Collins and the Tri-Districts, for reimbursement to the
Company of any increased costs of operation and maintenance of the Munroe Canal caused
by the diversion and carriage of water for such entities pursuant to their allotment
agreements with Northern Water;
WHEREAS, Fort Collins and the Tri-Districts each currently own a substantial number (and
collectively own more than half) of the Company’s outstanding shares;
WHEREAS, notwithstanding the contractual rights to use of capacity in the Munroe Gravity
Canal pursuant to their respective allotment contracts with Northern Water, the Company
has, from time to time, pursuant to informal agreement(s), allowed Fort Collins and the Tri-
Districts to utilize the Munroe Gravity Canal, from the diversion structure on the Cache la
Poudre River to the PVP diversion structure to deliver non-share water, as the same is
further defined in ¶ 4, below, to their respective water treatment facilities during the
Municipal Diversion Season (defined herein to be April 1st
– October 31st
of each year);
WHEREAS, the Company and Fort Collins and the Tri-Districts each desire to share the
capacity of the Munroe Gravity Canal available to them under their respective agreements
with Northern Water to maximize the canal’s value to each respective entity;
WHEREAS, through this Agreement, the Company and Fort Collins and the Tri-Districts agree
to collaboratively strive to coordinate their respective water deliveries through the Munroe
Gravity Canal so as to minimize the effect on each of the Parties’ rights and on the
Company’s operations;
WHEREAS, the goal of this Agreement is to develop an operating agreement between the
Parties to provide operational certainty to all of the Parties; and
3
WHEREAS, the Company desires to allow Fort Collins and the Tri-Districts to deliver non-
share water through the PVP Reach in the Munroe Gravity Canal, in accordance with terms
and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS
AGREEMENT, THE PARTIES COVENANT AND AGREE TO THE TERMS AND CONDITIONS SET
FORTH IN THE FOLLOWING PARAGRAPHS.
3. TERM. The term of this Agreement will be five years from the date of complete
execution by the Parties. This Agreement shall automatically renew for a second five (5)
year term unless either Fort Collins or the Tri-Districts notify the Company in writing that they
choose to terminate the Agreement prior to the first five-year anniversary of the Agreement.
The Parties acknowledge and agree that they intend to continue working together in good
faith on a long-term extension beyond the initial Term of this Agreement. Any such extension
shall be in writing and shall be executed prior to this Agreement’s expiration.
4. FORT COLLINS’ AND THE TRI-DISTRICTS’ WATER AND EXCESS CAPACITY DEFINED.
Pursuant to their respective share ownership in the Company, Fort Collins and the Tri-
Districts are each entitled to their pro-rata amount of water available pursuant to the
Company’s decreed water rights (“share water”). For the purpose of this Agreement, “Fort
Collins’ and the Tri-Districts’ water” refers to any water other than share water to which Fort
Collins and the Tri-Districts are lawfully entitled, and that may legally be diverted from the
Cache La Poudre River at the headgate of the Munroe Gravity Canal. Pursuant to the
Company’s Amended Operating Agreement with Northern Water, and pursuant to Fort
Collins’ and the Tri-Districts’ Allotment Contracts with Northern Water, both Fort Collins and
the Tri-Districts have the perpetual right to utilize reasonable amounts of capacity in the
Munroe Canal up to a maximum combined capacity of 186 cfs. For the purposes of this
Agreement, “Excess Capacity” is defined to be the capacity existing in the Munroe Canal
which may be utilized by the Company to safely deliver Fort Collins’ and the Tri-Districts’
water and which capacity is not required by the Company to deliver water it diverts on behalf
of its’ stockholders through the Munroe Gravity Canal under the allocation provision in ¶ 3 of
the Company’s Amended Operating Agreement with Northern Water, but not to exceed a
maximum combined capacity of 186 cfs as defined in Fort Collins’ and the Tri-Districts’
allotment agreements with Northern Water.
Pursuant to this Agreement, the Company will make such determination(s) of the amount of
Excess Capacity available at any given moment based upon its ability to safely convey water,
its obligations to its stockholders, its contractual obligation to deliver Fort Collins’ and the
Tri-Districts’ non-share water separate from their respective Company share water, and
other operational considerations. For the purposes of this Agreement, the Parties
acknowledge and agree that the current combined total flow capacity in the PVP Reach is
approximately 250 cfs. The Parties further acknowledge and agree that, to the extent the
Company determines that Excess Capacity exists, each of Fort Collins and the Tri-Districts
will be entitled to use the remaining capacity in the Munroe Gravity Canal up to 93 cfs. To
the extent that 186 cfs is not available, Fort Collins and the Tri-Districts agree that either
one may use what capacity they need and what capacity the Company determines is
4
available, unless the combined need is greater than the available capacity in which case
Fort Collins and the Tri-Districts will each be entitled to one-half of the capacity available.
Finally, the Parties acknowledge and agree that Fort Collins and the Tri-Districts each have
the contractual right, based on their agreements with Northern Water, to have reasonable
amounts of their respective non-share water delivered through the PVP Reach, however,
such rights may not exceed the limitations of those agreements, meaning that each is
limited individually to a maximum instantaneous diversion and delivery rate of 93 cfs of non-
share water through the PVP Reach.
5. CAPACITY ALLOCATION/CANAL OPERATION. Fort Collins and the Tri-Districts will
coordinate with the Company all diversions of their respective non-share water through the
PVP Reach. The primary objective of Fort Collins and the Tri-Districts is to utilize and make
deliveries of their respective non-share water through the PVP Reach. Fort Collins and the
Tri-Districts acknowledge that the Company may incur additional costs to operate the PVP
Reach, and agree to work with the Company so as not to increase the reasonable costs of
operation incurred by the Company including for those increased costs the Company incurs
for the delivery of excessive water below the PVP.
Fort Collins and the Tri-Districts will each provide to the Company a proposed annual
operating plan for anticipated non-share water diversions through the PVP Reach no later
than March 1 of each year and will meet with Company staff, individually or jointly, to
discuss such individual proposed annual operating plans no later than on March 15 of each
year, or by/at such other date(s) as the Parties determine are necessary. Additionally, Fort
Collins and the Tri-Districts will meet with Company staff, individually or jointly, after the
Municipal Diversion Season, but no later than December 15 of each year, or by such other
date(s) as the Parties determine are necessary, to discuss the preceding water year’s
operations and to review expenses which the Company has incurred in delivering non-share
water for Fort Collins and the Tri-Districts through the PVP Reach.
The Company agrees that it will provide Fort Collins and the Tri-Districts information detailing
future maintenance planned by the Company and, to the extent applicable, by Northern
Water, in the PVP Reach. To the extent that planned maintenance by the Company and/or
Northern Water will impact the abilities of Fort Collins or the Tri-Districts to deliver their
respective non-share water to the PVP during the Municipal Diversion Season, the Company
will provide notice of such impact(s) as soon as they are identified. Such notice will be
communicated by the most expeditious means possible to the individuals identified in ¶ 10,
below, as “Emergency Contacts”. The Parties agree to update any and all modifications to
the Emergency Contacts’ information in writing as soon as practical, but in any event, to
conform or update the information annually at the Company’s annual stockholder meeting.
The Company will take reasonable measures to minimize such impact(s).
6. CONSIDERATION. The diversion and delivery of Fort Collins’ and the Tri-Districts’ non-
share water through the PVP Reach will result in additional operational, administrative, and
maintenance costs (“Additional Costs”) to the Company that are unrelated to the routine
operational, administrative, and maintenance costs related to the Company’s duty to deliver
share water to its shareholders (“Routine Costs” are paid from the Company’s operating
5
budget which is funded by assessments from shareholders, including Fort Collins and the
Tri-Districts). There are two scenarios under which Additional Costs to the Company may
arise:
a. The Parties agree that the Company will incur Additional Costs at times during the
Municipal Diversion Season when the Company delivers Fort Collins’ and the Tri-
Districts’ non-share water through the PVP Reach and it is not concurrently delivering
share water to its shareholders (“Non-Share Delivery Periods”). So that Additional
Costs during Non-Share Delivery Periods are not borne by the Company’s
shareholders, Fort Collins and the Tri-Districts shall pay for the Additional Costs
through the assessment of an Additional Fee in the amount of $2,100 per month in
the first full year of this Agreement, which Additional Fee shall be pro/rated for the
number of days within each month when either the City of Fort Collins or the Tri-
Districts are taking delivery of non-share water through the PVP Reach and the
Company is not concurrently delivering share water to its shareholders. Based on the
Company’s experience gained through operating this Agreement, the Company may
increase the Additional Fee in subsequent years to recover costs and prevent
adverse impacts to the Company, but in no case will the Company increase the
Additional Fee by more than 10% over the prior year’s Additional Fee, nor will the
Company decrease the Additional Fee. If the Company desires to increase the
Additional Fee by more than 10% over the prior year’s Additional Fee in order to
recover costs and prevent adverse impacts to the Company, the Company shall be
required to provide evidence to Fort Collins and the Tri-Districts establishing the clear
need for such increase for the Company to recover costs and prevent adverse
impacts to the Company.
b. The Parties agree that the Company may also incur Additional Costs at times during
the Municipal Diversion Season when the Company delivers Fort Collins’ and the Tri-
Districts’ non-share water through the PVP Reach and it is concurrently delivering
share water to its shareholders (“Normal Delivery Periods”). As Fort Collins and the
Tri-Districts’ shareholder assessments contribute to the Routine Costs the Company
incurs from the delivery of share water to its shareholders during Normal Delivery
Periods, any Additional Costs incurred during this time must be directly related to the
delivery of the non-share water through the PVP Reach and must be documented by
the Company to evidence that they are not part of the Routine Costs. Fort Collins and
the Tri-Districts will pay for such documented, reasonable Additional Costs, provided
that each of or both Fort Collins and the Tri-Districts have the opportunity to review a
detailed summary of such Additional Costs and to dispute any such identified
Additional Costs which may in fact be Routine Costs.
7. NORTHERN WATER. The Parties agree that Northern Water will be afforded the
timely opportunity to review this Agreement prior to its execution. The Parties acknowledge
and agree that review of this Agreement by Northern Water does not bind Northern Water to
any provisions or representations in this Agreement. Nothing in this Agreement modifies,
amends or otherwise impacts the existing contracts, allotments or agreements between
Northern Water and each of the parties either individually or collectively. Any
6
representations made in this Agreement, including its recitals, are solely between the
Parties themselves and not Northern Water.
8. ASSIGNMENT. This Agreement will not be assigned or delegated except with the prior
written consent of the Parties.
9. PRIOR AGREEMENTS. The terms and conditions of any previous agreements
between the Company and Fort Collins or between the Company and the Tri-Districts or
between the Company and Fort Collins and the Tri-Districts are not affected or amended by
this Agreement.
10. NOTICES/CONTACTS. Any notice required or permitted by this Agreement will be in
writing and will be deemed to have been sufficiently given for all purposes if sent by certified
or registered mail, postage and fees prepaid, addressed to the party to whom such notice is
intended to be given at the address set forth on the signature page below, or at such other
address as has been previously furnished in writing to the other party or parties. Such
notice will be deemed to have been given when deposited in the U.S. Mail. The parties will,
to the extent possible, communicate any modifications in their emergency contact
information in writing to the other parties prior to the commencement of each Municipal
Diversion Season or as soon as possible once such modification has been made.
Emergency Contacts:
North Poudre Irrigation Company:
Name: Tad Moen
Position: General Manager
Telephone #: (970) 218-8476
Email: tmoen@npicwater.com
Name: Torin Thorsguard
Position: Operations Manager
Telephone #: (303) 552-8225
Email: tthorsgard@npicwater.com
Fort Collins:
Position: Plant Director
Name: Mark Kempton
Telephone #: (970) 698-4988 or (970) 221-6690 ext. 0
Email: mkempton@fcgov.com
Tri-Districts:
Name: Chris Harris
Position: Plant Manager/SCFP
Telephone #: (970) 692-1807 (cell)
Email: charris@scwtp.org
7
Regular Contacts for All Other Notice Requirements:
North Poudre Irrigation Company:
Name: Torin Thorsguard
Position: Operations Manager
Address: P.O. Box 100, Wellington, CO 80549
Telephone #: (303) 552-8225
Email: tthorsgard@npicwater.com
Fort Collins:
Position: Plant Director
Name: Mark Kempton
Address: 4316 LaPorte Ave, Fort Collins CO 80521
Telephone #: (970) 221-6692
Email: mkempton@fcgov.com
Tri-Districts:
Name: Richard Raines
Position: Water Resources Manager/SCFP
Address: 4424 La Porte Avenue, Fort Collins, CO 80521
Telephone #: (970) 218-2738 (cell)
Email: rraines@scwtp.org
11. EXHIBITS. All exhibits referred to in this Agreement are, by this reference,
incorporated in this Agreement for all purposes.
12. DELAYS. Any delays in, or failure of, performance by any party of his or its obligations
under this Agreement will be excused if such delays or failure are a result of acts of God,
fires, floods, strikes, labor disputes, accidents, regulations or orders of civil or military
authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are
beyond the control of such party.
13. PARAGRAPH CAPTIONS. The captions of the paragraphs are set forth only for
convenience and reference, and are not intended in any way to define, limit, or describe the
scope or intent of this Agreement.
14. ADDITIONAL DOCUMENTS OR ACTION. The Parties agree to execute any additional
documents and to take any additional action necessary to carry out this Agreement.
15. INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement
between the Parties and there are no oral or collateral agreements or understandings. This
Agreement may be amended only by an instrument in writing signed by the Parties.
16. ALTERNATIVE DISPUTE RESOLUTION. In the event of any dispute or claim arising
under or related to this Agreement, including but not limited to the payment of any
maintenance and repair amounts by the City of Fort Collins and the Tri-Districts, the Parties
8
will use their best efforts to settle such dispute or claim through good faith negotiations with
each other. If such dispute or claim is not settled through negotiations within 30 days after
the earliest date on which one party notifies the other party in writing of its desire to attempt
to resolve such dispute or claim through negotiations, then the parties agree to attempt in
good faith to settle such dispute or claim by mediation conducted under the auspices of a
recognized established mediation service within the State of Colorado upon which the
Parties can agree. Such mediation will be conducted within 60 days following either party’s
written request therefor. If such dispute or claim is not settled through mediation, then any
party may initiate a civil action in the District Court for Larimer County.
17. DEFAULT AND/OR TERMINATION. All terms and conditions of this Agreement are
considered material. In the event that any party defaults in the performance of any of the
covenants or agreements to be kept, done or performed by and under the requirements of
this Agreement, the non-defaulting party or parties will give the defaulting party 30 days
written notice of such default, and if the defaulting party fails, neglects or refuses for a
period of more than 30 days thereafter to make good or perform the default, then the non-
defaulting party or parties, without further notice, may file an action for specific performance
or damages or both.
18. WAIVER OF BREACH. The waiver by any party to this Agreement of a breach of any
term or provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
19. IMMUNITIES PRESERVED. It is the intention of the Parties that this Agreement will
not to be construed as a contractual waiver of any immunities or defenses provided by the
Colorado Governmental Immunity Act, Section 24-10-101 and following, Colorado Revised
Statutes.
20. NO THIRD PARTY BENEFICIARIES. None of the terms, conditions, or covenants set
forth in this Agreement will give or allow any claim, benefit, or right of action by any third
person not a party to this Agreement. Any person other than the parties to this Agreement
who or which receive services or benefits under this Agreement will be only an incidental
beneficiary.
21. BINDING EFFECT. This Agreement will inure to the benefit of, and be binding upon,
the Parties, and their respective successors and assigns; provided, however, that nothing
contained in this paragraph will be construed to permit the assignment of this Agreement
except as otherwise specifically authorized in this Agreement.
22. GOVERNING LAW. This Agreement will be governed by the laws of the State of
Colorado. Venue will be in the District Court for Larimer County.
23. COUNTERPARTS. This Agreement may be executed in several counterparts and, as
so executed, will constitute one Agreement, binding on all the Parties even though all the
Parties have not signed the same counterpart. Any counterpart of this Agreement which has
attached to it separate signature pages, which altogether contain the signatures of all the
9
Parties, will be deemed a fully executed instrument for all purposes.
24. SEVERABILITY. If any provision of this Agreement is declared to be invalid, void or
unenforceable by a court of competent jurisdiction, such provision will be deemed to be
severable, and all other provisions of this Agreement will remain fully enforceable, and this
Agreement will be interpreted in all respects as if such provision were omitted.
DATED. ____________________, 2019.
[THE REST OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
10
IN WITNESS WHEREOF, the Parties have executed this Agreement Regarding Use of the
Munroe Canal effective the day and year first written above.
North Poudre Irrigation Company,
a Colorado mutual ditch and reservoir company
_________________________________________
By: ___________________, President
Attest:
_________________________________________
By: ___________________, Secretary
11
City of Fort Collins,
a Colorado municipal corporation with home-rule authority
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
12
Fort-Collins – Loveland Water District,
a quasi-municipal corporation and a political subdivision of the State of Colorado
_________________________________________
By: ___________________, President
Attest:
_________________________________________
By: ___________________, Secretary
North Weld County Water District,
a quasi-municipal corporation and a political subdivision of the State of Colorado
_________________________________________
By: ___________________, President
Attest:
_________________________________________
By: ___________________, Secretary
East Larimer County Water District,
a quasi-municipal corporation and a political subdivision of the State of Colorado
_________________________________________
By: ___________________, President
Attest:
_________________________________________
By: ___________________, Secretary
14
NC
R
-2
9C
W
H
i
g
hw
a
y
14
W
H
i
g
h
w
a
y
1
4
M
c
M
urryRanchRd
N
Count
y
Ro
a
d
2
9
C
Source: Esri, DigitalGlobe, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AeroGRID, IGN, and the GIS User Community
Cache la Poudre River
Munroe Gravity Canal - Underground Portion
Munroe Gravity Canal
Figure 1
Munroe Gravity Canal
Diversion Structure to PVP Turnout
Munroe Gravity
Canal Diversion
PVP Turnout
0 0.25 0.5Miles