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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/12/2017 - RESOLUTION 2017-106 AUTHORIZING THE EXECUTION OF AAgenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY December 12, 2017 City Council STAFF Mike Beckstead, Chief Financial Officer Judy Schmidt, Legal SUBJECT Resolution 2017-106 Authorizing Execution of an Intergovernmental Agreement Concerning Boxelder Basin Regional Stormwater Authority Project Improvements. EXECUTIVE SUMMARY The purpose of this item is to authorize the Mayor to execute a new intergovernmental agreement among the founding members of the Boxelder Basin Regional Stormwater Authority (BBRSA) and the Town of Timnath (or the Timnath Development Authority) (Timnath). Several issues and concerns have been raised by the founding members of the BBRSA concerning fees, long term asset maintenance and how the BBRSA will be ultimately dissolved. Staff has worked with the other members and Timnath (not a member of the Authority but a participant in the funding of an Authority asset) to resolve outstanding issues and propose a path to long term asset care and Authority dissolution. The proposed Agreement memorializes the agreements among the parties. With this agreement, all members commit to promptly remitting all fees due the BBRSA which will allow final payment of the Day Settlement by Dec 31, 2017. The agreement includes cost sharing details for future expenses, creation of maintenance reserve accounts for the two principal assets, outlines the transfer of these assets to Larimer County plus the maintenance reserve accounts after the Colorado Water Conservation Board (CWCB) loans are paid in full and maintenance reserve accounts have been filled from BBRSA revenue and provisions for allocation of maintenance and repair costs in excess of the funded reserve accounts. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION The BBRSA was formed in 2008 with the objective to resolve stormwater issues within the multi-jurisdictional Boxelder Basin that includes Fort Collins, Wellington and Larimer County. Three major projects were completed: (1) the Coal Creek Flood Mitigation (Clark Reservoir), (2) the Larimer/ Weld Canal Crossing Structure and (3) the East Side Detention Facility (ESDF). Fees were established by the BBRSA for residential and commercial properties within its established boundary. These fees are primarily collected by the municipalities as part of their Stormwater Utility and remitted to the BBRSA annually. Fees have been collected by the BBRSA for Larimer County who does not have a Stormwater Utility. A large FEMA grant was used to construct the Coal Creek Flood Mitigation project and loans from the Colorado Water Conservation Board (CWCB) were used to fund the other projects. All projects planned have been built and are complete. Two issues remain on the ESDF. Final payment of the Day settlement, resolving Agenda Item 1 Item # 1 Page 2 litigation in connection with the acquisition of property for the ESDF, must be completed by December 31, 2017 and a potential water augmentation issue must be resolved. Staff has worked with the member municipalities to define the percentage share of CWCB principal and interest and BBRSA Operations and Maintenance (O&M) expenditures, and the percentage share of future long-term maintenance costs for both the Coal Creek Flood Mitigation (Clark Reservoir) and ESDF facilities will be borne by the feepayers in each jurisdiction. Staff has also worked with Timnath to undertake a share of long-term maintenance costs for the ESDF. The proposed allocations are based on an estimation of costs and benefits to the member entities and Timnath. Table A summarizes how the percentage share of debt payments, O&M, and Day Settlement (including possible water augmentation funding) and year end 2016 fund balance is allocated. Table A Table B summarizes the percentage share for allocation of long term maintenance costs. The percentages apply to the share for the feepayers of each entity in building the maintenance reserve accounts and the share that each entity’s feepayers would be responsible for in the event additional funding is needed in the future. Future funding is subject to appropriation. Table B Debt & Operations Cost Debt O&M Total Debt & Annual O&M $10,975k $110k yr + Infl Town 25% - $2.7M 25% - $27.5K County 25% - $2.7M 25% - $27.5K City 25% - $2.7M 25% - $27.5K Timnath 25% - $2.7M 25% - $27.5K Day & Water Aug 2016 Fund Bal Day Settlement/Water Augmentation & 2016 Year End Balance Total Debt & Annual O&M $1,361k $489k Town 25% - $340k 33% - 163K County 25% - $340k 33% - 163K City 25% - $340k 33% - 163K Timnath 25% - $340k 0% Maintenance Reserve Coal Creek ESDF Initial Funding Maint Reserve $1M $1.2M Member Share Town 50% - $500K 0% County 25% - $250K 33% - 400K City 25% - $250K 33% - 400K Timnath 0% 33% - 400K Authority Revenues used to fill maintenance reserves Agenda Item 1 Item # 1 Page 3 Additional agreement details include; 1. Waive reimbursement of grant matching funds (total $1M; City share $200K) provided by the member entities in 2009 to fund Clark Reservoir project (FEMA grant funded remainder of this project). 2. All fees for 2016 will be remitted by Wellington to the BBRSA upon approval of the agreement by the governing body of all parties. 3. Members ratify the CWCB loan modification and the Day Settlement by signature of the new agreement. 4. Commitment to synchronize the CWCB loan paydown with the build-up of the maintenance reserve accounts. 5. BBRSA dissolves when the loan is paid off and the reserve maintenance accounts are fully funded. At which time, the assets and the reserve maintenance accounts transfer to Larimer County who has the responsibility for ongoing maintenance. 6. In the event additional funding beyond the reserve maintenance accounts is required to support the future asset maintenance, the agreement establishes the percentage share each entity or its feepayers will be responsible for. These future obligations are also subject to appropriation. 7. Include an annexation clause to address appropriate adjustments in the event of annexation. 8. True up of BBRSA revenue at dissolution to align with percentage share commitments within the new agreement. 9. Establishment of an oversight committee to meet once or twice a year to ensure the details of the original Boxelder IGA and this new agreement are maintained. CITY FINANCIAL IMPACTS The new agreement does not create any new obligations for the City rate payers related to debt, O&M, or maintenance reserves funded by BBRSA revenue. The new agreement does commit the City to continuing to collect and pay the fees to the Authority and directly establishes the percentage share for each entity if additional long term maintenance funding (in excess of the reserve fund for the relevant asset) is required. BOARD / COMMISSION RECOMMENDATION The framework and details of the new agreement were reviewed with the Water Board on November 16, 2017. The Board had several questions, but did not take formal action on the matter. ATTACHMENTS 1. Powerpoint presentation (PDF) Boxelder Storm Water Update 1 November 1 2017 ATTACHMENT 1 History 2 • Boxelder Authority formed in 2009 • Objectives: 1. Resolve storm water issues within multi jurisdictional Boxelder basin 2. Wellington, Fort Collins & County • 3 Major Projects 1. Coal Creek / Clark Reservoir 2. Larimer Weld Canal 3. East Side Detention Facility • Revenue - $66 per residence, commercial per impervious area, no charge to agriculture Issues Under Review 3 • Costs exceeded initial estimates • Board questions on billing accuracy • How/Who will manage long term asset maintenance • Appropriate sharing of future costs • When should Authority be dissolved Technical Fee Team 4 • Billing team has reviewed billing accuracy and prior fee audit reports. • Fee waivers – resolved per memo from Pinnacle, • Boundary property and Out Building property – confirmed current policy Recommend - if outbuilding is 2k sq ft or more, treat as residential • Agricultural – Recommend no change to current agricultural billing • Draft Report in process Team: Ed Cannon (Wellington), Eric Tracy (County) Mike Beckstead (FC) Framework Team 5 Discussions focused on: • Appropriate Member share of future costs • Debt service • Authority O&M • Long Term Asset Maintenance Care • Long term asset maintenance cost share • Clark Reservoir • ESDP • Share by member / Timnath involvement • Timing of asset transfer and Authority dissolution Team: • Ed Cannon (Wellington) • Jeff Kahn (Attorney Wellington) • Richard Seaworth (Wellington) • Todd Blomstrom (County) • Eric Tracy (County) • Jeanine Haag (Attorney County) • Bill Ressue (Attorney County) • Mike Beckstead (FC) • Judy Schmidt (Attorney FC) Note: “Member” refers to the rate payers of each member jurisdiction that pay future costs Debt & Operations Cost 6 • Revenues between 3 parties is largely 1/3 each over life loan • Timnath has committed to ¼ of ESDP construction/financing • Timnath supportive of O&M share • Propose – Syncronize Debt pay down with LT Maint Reserve All Funding for These Items comes from Authority Revenues…. No Additional Funding is Needed for These Items after the Authority is Dissolved and Assets are Transferred Debt & Operations Cost Debt O&M Total Debt & Annual O&M $10,975k $110k yr + Infl Town 25% ‐ $2.7M 25% ‐ $27.5K County 25% ‐ $2.7M 25% ‐ $27.5K City 25% ‐ $2.7M 25% ‐ $27.5K Timnath 25% ‐ $2.7M 25% ‐ $27.5K Day & Water Aug 2016 Fund Bal Day Settlement/Water Augmentation & 2016 Year End Balance Total Debt & Annual O&M $1,361k $489k Town 25% ‐ $340k 33% ‐ 163K County 25% ‐ $340k 33% ‐ 163K City 25% ‐ $340k 33% ‐ 163K Timnath 25% ‐ $340k 0% Long Term Asset Maintenance 7 • Assets part of a system yet substantially independent • Town benefits more from Clark • Timnath supportive of sharing maintenance cost of ESDP • Each member should develop an internal dedicated fund specific to these assets to support potential future needs After Authority is Dissolved and Assets are Transferred, Funding Requests Will/May Be Needed Over Time – will be Based on % Maintenance Reserve Coal Creek ESDP Initial Funding Maint Reserve $1M $1.2M Member Share Town 50% ‐ $500K 0% County 25% ‐ $250K 33% ‐ 400K City 25% ‐ $250K 33% ‐ 400K Timnath 0% 33% ‐ 400K Authority Revenues used to fill maintenance reserves Authority Cashflow 8 y Sources Forecast Indicates Ability to Repay Loan, Build Maintenance Reserves and Dissolve Authority Prior to 2031 Fort Collins Wellington County Timnath Other Total Sources Storm Water Fees $ 6,804 $ 6,996 $ 7,415 $ 21,214 Development Fees 1,049 1,568 249 2,866 Timnath 4,493 4,493 Loans & Grants 11,740 11,740 Grant Match / Other 525 302 821 332 179 2,159 Total Sources $ 8,378 $ 8,866 $ 8,485 $ 4,825 $ 11,919 $ 42,472 Uses Coal Creek 5,413 County Road 52 1,813 Larimer Weld Canal 932 East Side Detention 12,534 Authority O&M 3,285 Loan Principle & Interest 11,106 Grant Match 985 Maintenance Reserves 2,200 Total Uses $ 38,269 Fund Balance 2031 $ 4,203 Agreement Details 9 • All member waive grant match reimbursement • All fees remitted by all members by Dec 2017 • Wellington ratifies and approves the Day Settlement • Synchronize CWCB pay down with maintenance reserve build up • Authority dissolved when loan paid down, assets and care reserve transferred • Anticipate 2027/2028 timeframe • Need an annexation/revenue adjustment – Mulberry/Timnath implications • Potential timing of member revenue vs. cost % • One member may reach thresholds sooner than others • Pinnacle should track revenue/expenditures per agreement • Require some degree of ongoing monitoring • Possible oversight review committee meet once/twice year Summary Considerations 10 • Creates no new obligation for the City rate payers related to Debt, O&M, Maintenance Reserves funded by Authority revenue. • Long-term – establishes a % of shared cost each member will pay for Debt & O&M expenditures • Long-term – County takes over asset maintenance (assets and care reserve transferred to the county when Authority is dissolved • Long-term – County will/may ask for additional asset care funding if needed base on the % noted in the agreement Next Steps 11 • CFC Review Scheduled Nov 20th • FC Council Dec 12th – IGA/Agreement Resolution Adoption & CWCB ratification • County & Town elected officials adoption IGA/Agreement and CWCB ratification prior to mid December • Town pays 2016 fees to allow Authority to make the final payment on the Day settlement by Dec 31. 12 Back-Up Funding 13 • Revenue • Service Fees (Annual) • Single Family1 -- $66 • Mobile Homes -- $49.50 to $56.10 • Apartment -- $66 per Unit • Commercial -- $0.033 per Sq Ft of Impervious Area • System Development Fees (similar to PIF. One time payment at time of development) • Single Family1 -- $440 • Mobile Homes -- $330 to $374 • Apartment -- $440 per unit • Commercial -- $0.22 per Sq Ft of Impervious Area 1 Includes agricultural properties that have a residence Issues Under Review 14 • Total Costs exceeded Conceptual Plan Estimates • Cost Estimates were done 10 years ago • Larger East Side Detention Facility (Timnath) • Timnath cost participation offsets increase • Higher real estate acquisition cost • Wellington questions on SW fee billing accuracy • After detailed review, no significant discrepancies • How/Who will manage long term asset O & M costs • Appropriate sharing of future O & M costs • When should Authority be dissolved • Authority must pay off CWCB loans • Agreement on asset ownership transfers and long term O & M costs -1- RESOLUTION 2017-106 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT CONCERNING BOXELDER BASIN REGIONAL STORMWATER AUTHORITY PROJECT IMPROVEMENTS WHEREAS, the City of Fort Collins (the “City”), Board of Commissioners of Larimer County, Colorado (the “County”) and Town of Wellington, Colorado (the “Town”) are the founding Members of the Boxelder Basin Regional Stormwater Authority (“BBRSA” or “Authority”), a separate governmental entity to be known as a drainage authority established pursuant to C.R.S. Section 29-1-204.2(1), under that certain Intergovernmental Agreement for Stormwater Cooperation and Management dated August 20, 2008, and First Amendment to Intergovernmental Agreement for Stormwater Cooperation and Management dated June 16, 2014, (collectively, the "Boxelder IGA''); and WHEREAS, the Authority has, pursuant to the Boxelder IGA, financed, constructed and completed the Coal Creek/Clark Reservoir Flood Mitigation Project (“Clark Reservoir”), the Larimer and Weld Canal Crossing Structure, the County Road 52 Project and the East Side Detention Facility (the “ESDF,” formerly known as the Gray Lakes Project) (each of which may be individually referred to as a “Project,” or collectively as the “Projects”); and WHEREAS, the Larimer and Weld Canal Crossing Structure is complete and is owned and operated by the Larimer and Weld Canal Company; and WHEREAS, the County Road 52 Project was completed and paid for pursuant to a separate intergovernmental agreement and is owned and operated by the County; and WHEREAS, financing for the Projects included three loans to the Authority by the Colorado Water Conservation Board (“CWCB”), which loans remain outstanding; and WHEREAS, the Authority has also entered into an Intergovernmental Agreement dated November 15, 2012, (the “Timnath IGA”) with the Timnath Development Authority of Colorado (the “TDA”) which provides for TDA’s participation in the cost of constructing and financing the ESDF; and WHEREAS, although no further regional storm drainage projects are to be constructed by the Authority pursuant to the Boxelder IGA, the Authority owns, operates and maintains the ESDF, has long-term maintenance obligations for Clark Reservoir under an agreement dated January 5, 2011, with the North Poudre Irrigation Company and assesses fees to properties located within its service area, which are benefitted by the Projects; and WHEREAS, pursuant to the First Amendment to the IGA, the Authority is to sunset and be dissolved no later than June 16, 2024, if certain conditions are met, including completion of the Projects, payment in full of all CWCB loans and agreement among the Members as to (i) performance of continuing obligations of the Authority, including operation and maintenance responsibilities for the Projects; (ii) reimbursement of matching funds provided by the Members -2- to the Authority for a FEMA Pre-Disaster Mitigation Grant in the total amount of one million dollars ($1,000,000); and (iii) disbursement of any revenue remaining in the authority after termination and winding up of all financial and legal obligations of the Authority (the “Conditions”); and WHEREAS, at its meeting on May 4, 2017, the Authority Board of Directors, which includes directors appointed by the Member entities who are parties to the Boxelder IGA (City, County, and Town), adopted a motion requesting that the Authority Manager submit a Preliminary Conceptual Outline for Transition Process prepared by the County (the “Framework”) to the City, County, Town, and the TDA seeking their participation in working group to discuss and formulate recommendations; and WHEREAS, on May 9, 2017, the City Council adopted Resolution 2017-041 supporting the Framework and the City-named representatives’ participation in the working group; and WHEREAS, on June 6, 2017, the City Council adopted Resolution 2017-054 expressing commitment to work in good faith through the working group in an effort to reach agreement allocating the Authority’s long term obligations for perpetual maintenance and operation of the Projects, identifying recommended changes to the ongoing operation and maintenance costs related the operation of the Authority, and facilitating retention by the Authority of fee revenue to fill its ongoing obligations until payment in full of the CWCB loans, and WHEREAS, a technical working group of representatives of the County (Eric Tracy), the Town (Ed Canon, Town Manager), and the City (Mike Beckstead, CFO) has now resolved longstanding questions regarding the appropriate and equitable assessment of fees among properties in the service area by the Authority; and WHEREAS, a second working group of Member representatives has discussed the Framework and resolution of long-term financial and ownership issues and long-term operation and maintenance of the Projects that are intended to, over the remaining period of the CWCB loans, address the Conditions to dissolution of the Authority set forth in the First Amendment to the IGA; and WHEREAS, the Members wish to address their participation in the Authority and the Members and Timnath wish to provide for participation in the long-term maintenance of the Projects in the manner set forth in the Intergovernmental Agreement Concerning Boxelder Basin Regional Stormwater Authority Project Improvements among the County, City and Town as Members and parties to the Boxelder IGA, and Timnath attached hereto as Exhibit “A” and incorporated by this reference (the “Member/Timnath IGA”) to facilitate satisfaction of the Conditions over the remaining period of the CWCB loans and prepare for the eventual termination and dissolution of the Authority at or about the date when the CWCB loans are paid in full; and WHEREAS, Article II, Section 16 of the City of Fort Collins Charter empowers the City Council, by ordinance and resolution, to enter into contracts with governmental bodies to furnish -3- governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS, Section 29-1-203 of the Colorado Revised Statutes and as to the County, Article XIV, Section 18 of the Colorado Constitution, provides that governments may cooperate or contract with one another to provide certain services or facilities when such cooperation or contracts are authorized by each party thereto with the approval of its legislative body or other authority having the power to so approve; and WHEREAS, under Section 1-22 of the City code, intergovernmental agreements and other cooperative arrangements between the City and other governmental entities are to be submitted to the City Council for review, unless they fit within one of the exceptions that permit execution by the City Manager; and WHEREAS, the City Council finds that it is in the best interests of the City and its citizens to approve and finalize the Member/Timnath IGA. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes all determinations and findings contained in the recitals set forth above. Section 2. That the Mayor is hereby authorized to execute the Member/Timnath IGA substantially in the form attached hereto as Exhibit “A,” with such modifications and additions 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 set forth herein and not otherwise inconsistent with this Resolution. Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 12th day of December, A.D. 2017. __________________________________ Mayor ATTEST: _____________________________ City Clerk AMENDED VERSION Page 1 of 14 2017‐12‐7 FINAL CITY CLEAN AGREEMENT CONCERNING BOXELDER BASIN REGIONAL STORMWATER AUTHORITY PROJECT IMPROVEMENTS This Agreement (“Agreement”) is effective this _________ day of ____________________, 2017 among the Board of County Commissioners of Larimer County ("County"); City of Fort Collins ("City"), Town of Wellington ("Town”), and the Timnath Development Authority of Colorado ("Timnath"). These entities may collectively be referred to as "Parties" or individually as a “Party”. The County, City, and Town may collectively be referred to as “Members” or individually as a “Member”. I. RECITALS A. The County, City, and Town are the founding Members of the Boxelder Basin Regional Stormwater Authority (“Authority”), a separate governmental entity known as a drainage authority established pursuant to C.R.S. Section 29-1-204.2(1), under that certain Intergovernmental Agreement for Stormwater Cooperation and Management dated August 20, 2008 ("Boxelder IGA" or “IGA”), and First Amendment to Intergovernmental Agreement for Stormwater Cooperation and Management dated June 16, 2014 ("First Amendment"). B. The Authority financed, constructed and completed regional stormwater facilities, including those known as the Coal Creek/Clark Reservoir Project (“Clark Reservoir Project”), the Larimer and Weld Canal Crossing Structure (“L&W Crossing Structure”); the County Road 52 Project, and the East Side Detention Facility (“ESDF”) (which may be collectively referred to as the “Projects”). The financing for the Clark Reservoir, Larimer and Weld Crossing Structure, and ESDF Projects included three loans to the Authority by the Colorado Water Conservation Board ("CWCB Loans"), which loans remain outstanding. The debt service on the CWCB Loans is referred to as the “CWCB Debt Service.” C. The County Road 52 Project was completed and paid for pursuant to a separate intergovernmental agreement pursuant to which the County owns and operates the improvements, which are integrated into and within the County’s right of way for County Road 52; and D. The L&W Canal Crossing Structure is also complete and is owned and operated by the L&W Canal Company; and E. The Authority has entered into an Intergovernmental Agreement dated November 15, 2012 with Timnath which provides for Timnath’s participation in the construction and financing costs for the ESDF (“Timnath Agreement”); and F. The Authority has also entered into the Coal Creek Flood Mitigation and Operation Agreement with the North Poudre Irrigation Company (“NPIC”) dated January 5, 2011, (“Coal Creek/Clark Reservoir Agreement”) to provide funding and performance of the long-term maintenance obligations for the Clark Reservoir Project. EXHIBIT A AMENDED VERSION Page 2 of 14 2017‐12‐7 FINAL CITY CLEAN G. Pursuant to the Boxelder IGA and First Amendment, the Authority owns, operates and maintains the ESDF, has long-term maintenance obligations for the Clark Reservoir Project under the Coal Creek/Clark Reservoir Agreement, and assesses fees to properties located within its Service Area and benefitted by the Projects; and H. Pursuant to the First Amendment, the Authority is to be dissolved no later than June 16, 2034, if certain conditions are met, including completion of the Projects, payment in full of all CWCB Loans and agreement among the Members as to (i) performance of continuing obligations of the Authority, including operation and maintenance responsibilities for the Projects; (ii) reimbursement of matching funds provided by the Members to the Authority for a FEMA Pre-Disaster Mitigation Grant in the amount of one million dollars ($1,000,000); and (iii) disbursement of any revenue remaining in the Authority after termination and winding up of all financial and legal obligations of the Authority (the “Conditions”); and I. In response to the Projects being completed and to plan for and facilitate the eventual termination of the Authority, the Parties wish to set out in this Agreement the commitments and obligations of the Parties to address existing financial and ownership issues and long-term operation and maintenance of the Project improvements that will, over the remaining period of the CWCB Loans, address the Conditions to dissolve the Authority; and J. Since no additional improvements are to be constructed by the Authority in its Service Area, it is the intent of the Members to work with Timnath and the Authority to continue collecting development and services fees from fee payers within each Member’s jurisdiction in an annual and total amount not less than those fees set by the Authority and sufficient over the remaining period of the CWCB Loans (the “Remaining Loan Repayment Period”) to fund (i) the CWCB Debt Service; (ii) a separate designated and restricted account to be held by the Authority for ongoing operation and maintenance of the ESDF in the ultimate amount of one million two hundred thousand dollars ($1,200,000) (the “ESDF O&M Fund”); (iii) a separate designated and restricted account to be held by the Authority for ongoing operation and maintenance of the Clark Reservoir Project in the ultimate amount of one million dollars ($1,000,000) (the “Clark Reservoir O&M Fund”); and (iv) the annual administrative and operating costs of the Authority, such as legal fees, accounting fees, office administration and office supplies, which are estimated not to exceed eighty five thousand dollars ($85,000) per year commencing January 1, 2019, with an estimated annual adjustment for inflation of three percent (3%) per annum commencing on January 1, 2020 (the “Authority Annual Operating Costs”) (the CWCB Debt Service, ESDF O&M Fund, Clark Reservoir O&M Fund and Authority Annual Operating Costs may collectively be referred to and the “Authority Continuing Obligations”); and K. Relating to the construction of the ESDF, the Authority entered into a settlement agreement in Larimer County District Court Case 2014CV31057, Boxelder Basin Regional Stormwater Authority v. John W. Day Family Partnership calling for payment of compensation in the total amount of one million six hundred seventy-five thousand dollars ($1,675,000) (the “Day Settlement”), which is also to funded by revenues of the Authority. II. CONSIDERATION AMENDED VERSION Page 3 of 14 2017‐12‐7 FINAL CITY CLEAN NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration received and accepted, the Parties agree as follows: III. TERMS A. Financial Obligations of Boxelder Fee Payers within County 1. The Authority shall continue to collect from fee payers within the County geographical area of the Boxelder Stormwater Basin Service Area service fees, in an amount not less than the service fees as set by the Authority. The County shall continue to collect from fee payers within the County geographical area of the Boxelder Stormwater Basin Service Area development fees, in an amount not less than the fees as set by the Authority. 2. The County feepayers shall ultimately be responsible for the following cumulative equitable share of the Authority Continuing Obligations over the period commencing January 1, 2018 through the termination of the Authority: a. Twenty-five percent (25%) of the total CWCB Debt Service, including principal and interest, over the Remaining Loan Repayment Period. b. Twenty-five percent (25%) the Clark Reservoir O&M Fund. c. Thirty-three percent (33%), of the ESDF O&M Fund. d. Twenty-five percent (25%) of the Authority Annual Operating Costs. 3. It is the County’s intent to contract separately with the Authority to collect service fees and to pay the cost of obtaining such services from the Authority and to self -collect the development fees from fee payers within the County portion of the Service Area and to pay the cost of obtaining such services from the Authority; such costs shall not be included in the Authority Annual Operating Costs. B. Financial Obligations of Boxelder Fee Payers within City 1. Commencing January 1, 2018 and thereafter, the City elects pursuant to Section 5.04 of the IGA to collect from fee payers within the City geographical area of the Boxelder Stormwater Basin Service Area or otherwise remit to the Authority service and development fees, in an amount not less than the fees as set by the Authority. 2. The City feepayers shall ultimately be responsible for the following cumulative equitable share of the Authority Continuing Obligations over the period commencing January 1, 2018 through the termination of the Authority: a. Twenty-five percent (25%) of the CWCB Debt Service, including principal and interest, over the Remaining Loan Repayment Period. b. Twenty-five percent (25%) of the Clark Reservoir O&M Fund. AMENDED VERSION Page 4 of 14 2017‐12‐7 FINAL CITY CLEAN c. Thirty-three percent (33%) of the ESDF O&M Fund. d. Twenty-five percent (25%) of the Authority Annual Operating Costs. 3. It is the City’s intent to collect and remit development fees and service fees from fee payers within the City portion of the Service Area and to pay the cost of such collection; such costs shall not be included in the Authority Annual Operating Costs. C. Financial Obligations of Boxelder Fee Payers within Town 1. Commencing January 1, 2018 and thereafter, the Town elects pursuant to section 5.04 of the IGA to collect from fee payers within the Town's geographical area of the Boxelder Stormwater Basin Service Area or otherwise remit to the Authority service and development fees, in an amount not less than the fees as set by the Authority. 2. The Town feepayers shall ultimately be responsible for the following cumulative equitable share of the Authority Continuing Obligations over the period commencing January 1, 2018 through the termination of the Authority: a. Twenty-five percent (25%) of the CWCB Debt Service, including principal and interest, during the Remaining Loan Repayment Period. b. Fifty percent (50%) of the Clark Reservoir O&M Fund. c. Twenty-five percent (25%) of the Authority Annual Operating Costs. 3. It is the Town’s intent to collect development fees and service fees from fee payers within the Town portion of the Service Area and to pay the cost of such collection; such costs shall not be included in the Authority Annual Operating Costs. D. Financial Obligations of Timnath 1. Commencing on January 1, 2018, Timnath shall pay to the Authority the following in consideration of benefits it receives because of the Authority's construction of the ESDF: a. Funding and reimbursements as specified in the Timnath Agreement, which amounts shall be billed annually and shall be paid until Timnath has paid twenty five percent (25%) of the construction costs and financing costs of the ESDF as defined in the Timnath Agreement. b. Thirty-three percent (33%) of the ESDF O&M Fund, which amounts shall be billed annually c. Twenty-five percent (25%) of the Authority Annual Operating Costs, which amounts shall be billed annually. AMENDED VERSION Page 5 of 14 2017‐12‐7 FINAL CITY CLEAN E. Operation and Maintenance of Clark Reservoir 1. Beginning January 1, 2018 and thereafter, the County agrees to provide general administration of the Coal Creek/Clark Reservoir Agreement at no cost to the Authority, Town, City or Timnath. Such administration includes staff site visits and scheduling/tracking/invoicing. 2. The Authority shall pay for needed maintenance and repairs to the Clark Reservoir Project in an amount not exceeding the funds in the Clark Reservoir O&M Fund. This includes the Authority’s obligations under the Coal Creek/Clark Reservoir Agreement. Notwithstanding the foregoing, the Clark Reservoir O&M Fund must be fully funded in the amount of one million dollars ($1M) prior to termination of the Authority, as set forth in Section III.O.1. below. 3. To the extent there are insufficient monies in the Clark Reservoir O&M Fund to pay for needed maintenance and repairs to the Clark Reservoir whether during the remaining existence of the Authority or after its termination, the County shall fund 25%, the City shall fund 25% and the Town shall fund 50% of the cost of the work. This cost participation shall apply to future expenses associated with the Coal Creek/Clark Reservoir Agreement during the Remaining Loan Repayment Period and shall survive and continue after termination of the Authority. The future fiscal obligations for such amounts are contingent upon annual appropriations by the County, City and Town. 4. Any expenditures pursuant to the Coal Creek/Clark Reservoir Agreement in excess of $10,000 must be unanimously approved by the County, City, and Town, which approval shall not be unreasonably withheld. The County's adopted purchasing policy shall apply and, when required, a competitive bid process will be used to select a contractor for the work unless the County, City and Town mutually agree otherwise. The County, City and Town must approve the award of a contract, which approval shall not be unreasonably withheld. In the event unanimous approval is not achieved for any proposed expenditure in excess of $10,000, or for an award of contract, the City and County will jointly select a professional engineer licensed in Colorado and the Town will select a professional engineer licensed in Colorado. The two engineers will then resolve the disagreement. 5. At least thirty (30) days before the date on which the Authority is terminated, the County agrees to accept assignment of the Coal Creek/Clark Reservoir Agreement and assume the Authority's management obligations thereunder. This assignment is conditioned on: a. NPIC’s consent to the assignment if required. b. Amendment of the Coal Creek/Clark Reservoir Agreement to state that future fiscal obligations under the Agreement are contingent on annual appropriations by the County, Town and City. c. A transfer of the Clark Reservoir O&M Fund held by the Authority to the County, with said funds being placed by the County in a dedicated interest earning account for future costs associated with Clark Reservoir. AMENDED VERSION Page 6 of 14 2017‐12‐7 FINAL CITY CLEAN F. Operation and Maintenance of East Side Detention Facility 1. Beginning January 1, 2018 and thereafter, the County agrees to provide general administration and management of the ESDF at no cost to the Authority, City, Town or Timnath. Such administration includes staff site visits and scheduling/tracking/invoicing for routine maintenance work. 2. The Parties acknowledge that the Authority is obligated to pay the Day Settlement and will incur costs to further modify the ESDF to minimize water augmentation requirements resulting from construction of the ESDF (the “ESDF Modifications”). The Parties agree that the existing estimated cost to complete the ESDF Modification in the amount of three hundred and fifty thousand dollars ($350,000) is already included in the expenditures to be funded by the Authority’s anticipated fee revenues during 2018 and 2019 as a part of the construction costs of the ESDF to borne equally by the Parties. Notwithstanding the foregoing, fee payers in the Town shall have no obligation for the payment of any such costs in excess of eighty-seven thousand five hundred dollars ($87,500) (based on 25% of $350,000) and shall have no responsibility for other augmentation costs or operation and maintenance costs of the ESDF in 2018. 3. Beginning January 1, 2018 and thereafter, the Town shall have no further obligations or expectations with respect to the ESDF, except as set forth in Section III.F.2. above and the Town will have the continued right to divert and deliver stormwater flows into the ESDF not to exceed the historic flows for the 100-year storm event. 4. Commencing January 1, 2018 and thereafter, the County shall pay for maintenance and repairs of the ESDF in an amount not to exceed $1,000.00 in any given calendar year. 5. Should required maintenance, repairs or restoration (collectively "work") of the ESDF improvements exceed $1,000.00 in calendar year 2018 or any calendar year thereafter, the costs of such work shall be paid from the available fund balance in the ESDF O&M Fund. Notwithstanding the foregoing, the ESDF O&M Fund must be fully funded in the amount of one million two hundred thousand dollars ($1.2M) prior to termination of the Authority, as set forth in Section III.O.1. below. 6. To the extent there are insufficient monies in the ESDF O & M Fund, the County shall pay 33.4%, the City shall pay 33.3% and Timnath shall pay 33.3% of the cost of the work. This cost participation distribution shall apply to future expenses associated with the ESDF during the Remaining Loan Repayment Period and shall survive and continue after termination of the Authority. The future fiscal obligations for such amounts are contingent upon annual appropriations by the County, City and Timnath. 7. The County's adopted purchasing policy shall apply and, when required, a competitive bid process will be used to select a contractor for the work unless the County, City and Timnath mutually agree otherwise. The County, City and Timnath must approve the award of a contract, which approval shall not be unreasonably withheld. In the event unanimous approval is not achieved, the City and County will jointly select a professional engineer licensed in Colorado AMENDED VERSION Page 7 of 14 2017‐12‐7 FINAL CITY CLEAN and Timnath will select a professional engineer licensed in Colorado. The two engineers will then jointly select the contractor to whom the contract will be awarded. 8. At least thirty (30) days before the date on which the Authority is terminated, the County will accept transfer of ownership of the ESDF from the Authority and the Authority’s ESDF O&M Fund shall be transferred to the County and placed in a dedicated, interest earning fund for future costs associated with the ESDF. G. Local Match Reimbursement The County, City and Town waive reimbursement by the Authority to them of the local match contributions made by each for the Pre-Disaster Mitigation Disaster Grant that would otherwise be due under the Boxelder IGA in the following estimated amounts: County: $500,000; City: $200,000 and Town: $300,000. H. Town 2016 Fees 1. Within 24 hours after approval of this Agreement by the governing bodies of all of the Parties, the Town will remit to the Authority all of the Stormwater Service Fees and System Development Fees collected in 2016 and payable to the Authority in 2017. 2. Such 2016 fees are estimated to total $462,399.73. I. Ratification by Town The Town hereby ratifies and approves (i) all modifications and extensions of the CWCB Loans accomplished prior to the execution of this Agreement; and (ii) the Day Settlement. J. Prepayment of Fees To enable the Authority to meet its fiscal obligations for any calendar year, the County, City and Town may, but are not required to, remit to the Authority all or a portion of the fees each such entity collected in for such year and which are otherwise payable in the following calendar year, so long as there is no additional cost to the Authority for such prepayment. All Members hereby ratify and approve of all prepayments accomplished prior to the execution of this Agreement. K. Role of Authority Based on the completion of the Projects and the County's assumption of administrative functions for the Clark Reservoir Project and ESDF, the Members will direct that the operation of the Authority be limited to determining and assessing fees, paying the CWCB Debt Service, holding meetings as required or needed, obtaining legal advice as needed, and completing required audits or other reports. Notwithstanding the foregoing, or any other provision of this Agreement, AMENDED VERSION Page 8 of 14 2017‐12‐7 FINAL CITY CLEAN nothing contained herein shall modify or constrain the Authority or power of the Authority under the Boxelder IGA. L. Due Date for Fees/Payments in Lieu All fees and/or payments in lieu of fees required to be made by the Parties to the Authority shall be paid on or before May 1 of each calendar year. M. Stormwater Service Fee 1. The Stormwater Service Fee shall be calculated and paid to the Authority pursuant to billing policies and fee schedules adopted by the Authority. 2. The Stormwater Service Fee will continue to be collected by the Authority on behalf of the County. The County will reimburse the Authority for costs of collection from properties located within unincorporated Larimer County and such costs shall not be included in the Authority Annual Operating Costs. 3. Pursuant to section 5.04 of the IGA, the City and Town elect to collect the Stormwater Service Fees due from fee payers within their respective boundaries and remit such Service Fees to the Authority. N. System Development Fee 1. The System Development Fee shall be calculated and paid to the Authority pursuant to billing policies and fee schedules adopted by the Authority. 2. Pursuant to section 5.04 of the IGA, the County, City and Town elect to collect the Stormwater System Development Fees due from fee payers within their respective boundaries and remit such Development Fees to the Authority. O. Termination of Authority 1. Upon payment in full of the CWCB Loans, availability of the minimum amount of $1M in the Clark Reservoir O&M Fund and $1.2M in the ESDF O&M Fund, and collection of sufficient fees to accomplish the equalization as set forth in section III O. 3. below (the “Equalization Payments”), the County, City and Town shall cooperate to cause the Authority’s assignment of the Coal Creek Agreement to the County and transfer of fee ownership of the ESDF to the County pursuant to Sections III(E)(5) and III(F)(7) of this Agreement, transfer funds in the ESDF O&M Fund and the Clark Reservoir O&M Fund to the County if not already accomplished, transfer of the funds to Parties as necessary to accomplish the “Equalization Payments” and terminate the Authority in accordance with Article X of the First Amendment. The funds in the Authority’s General Fund shall be used to make the Equalization Payments provided that the use of the Equalization Payments by all Parties shall be restricted as set forth in section III O. 3. below. AMENDED VERSION Page 9 of 14 2017‐12‐7 FINAL CITY CLEAN 2. Nothing herein is intended to prevent or authorize the County, City or Town from independently assessing and collecting fees or taxes related to the Projects after the Authority is terminated, as such matters are beyond the scope of this Agreement. 3. Before termination of the Authority, the Members shall cause each Party to receive Equalization Payments from the Authority in an amount equal to the fees each Party or its fee payers have paid in excess of such Party’s percentage of the Authority’s Continuing Obligations set forth in section III A, B, C and D, as adjusted by section III.P and subject to the limit identified in section III F 2. The result of these payments shall be that the amounts contributed by each Party or the fee payers within each Party’s jurisdiction shall equal the percentages set forth in section III. A, B, C, and D, as adjusted by section III. P and subject to the limit in section III F 2. The Members may cause the Authority to make the Equalization Payments from funds in the Authority’s General Fund. Any Equalization Payments received by the Parties pursuant to this section shall be utilized for the long-term operation and maintenance of the Clark Reservoir Project and the ESDF. P. Annexation Adjustments Should land area within the Authority’s Service Area be annexed from the County to the City, Town or Timnath, the Parties agree to adjust the financial commitments and cost participation percentages for the County set forth in this Agreement based on the changes in land area, revenue, and other financial impact upon the Parties in order to maintain a fair and equitable allocation of the Authority’s Continuing Obligations among the Parties or their fee payers if the annexation occurs prior to termination of the Authority, or a fair and equitable allocation of the ongoing costs of operation and maintenance of Clark Reservoir and the ESDF if the annexation occurs after termination of the Authority. Q. Audit Committee Each Party to this Agreement shall appoint one person to sit on a committee (the “Audit Committee”) to meet at least annually following the completion of the annual Authority audit and at additional appropriate times to review compliance with this Agreement and compare all contributions to the Authority from the Parties or the fee payers within each Parties’ boundaries with the percentages set forth in section III above. The Audit Committee shall make recommendations to the Authority on whether to prepay the CWCB Loans, add to the Clark Reservoir and ESDF O&M Funds, and/or add to cash balances sufficient to make the Equalization Payments based on the availability of funds and synchronization of the schedule for satisfying these three conditions before to terminate termination of the Authority as outlined in Section III. O. No Party shall appoint a member of the Authority Board of Directors to the Audit Committee. R. Counterparts & Signatures This Agreement may be executed in several identical counterparts, all of which taken together shall constitute one single agreement between the parties. Facsimile signatures and AMENDED VERSION Page 10 of 14 2017‐12‐7 FINAL CITY CLEAN signatures transmitted via portable document format (PDF) shall be considered as original signatures. S. Survival The Parties agree that the terms of this Agreement shall continue and survive the termination of the Authority. T. Timnath’s Role The Parties agree that Timnath, by its signature of this Agreement, does not become a Member or a party to the Boxelder IGA. Timnath shall have no obligations under the Boxelder IGA and Timnath’s rights and obligations shall be limited to those set forth in this Agreement and those set forth in the Timnath Agreement. Remainder of Page Intentionally Blank Signature Page Follows AMENDED VERSION Page 11 of 14 2017‐12‐7 FINAL CITY CLEAN BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY By: Chair DATE Attest: Deputy Clerk AMENDED VERSION Page 12 of 14 2017‐12‐7 FINAL CITY CLEAN CITY OF FORT COLLINS, COLORADO By: _____________________________ Mayor ATTEST: City Clerk Approved as to form: Sr. Assistant City Attorney AMENDED VERSION Page 13 of 14 2017‐12‐7 FINAL CITY CLEAN Date: Attest: ____________________ By: TOWN OF WELLINGTON, COLORADO Mayor By: Town Clerk AMENDED VERSION Page 14 of 14 2017‐12‐7 FINAL CITY CLEAN Date: Attest: ____________________ By: TIMNATH DEVELOPMENT AUTHORITY OF COLORADO Chairperson By: Secretary