HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/16/2019 - RESOLUTION 2019-079 AUTHORIZING THE CITY MANAGER TAgenda Item 12
Item # 12 Page 1
AGENDA ITEM SUMMARY July 16, 2019
City Council
STAFF
Theresa Connor, Water Engineering Field Operations Mrg
Ken Sampley, Water Systems Engineering Manager
Eric Potyondy, Legal
SUBJECT
Resolution 2019-079 Authorizing the City Manager to Execute an Agreement with Numerous Stakeholders
Regarding a Joint Study of the Boxelder Creek Watershed Dams.
EXECUTIVE SUMMARY
The purpose of this item is to enter into an agreement with key stakeholders to study a series of key flood
control dams upstream of Fort Collins known as the “Boxelder Creek Watershed Dams.” The stakeholders that
will be parties to this agreement are: Larimer County, the Town of Wellington, the Town of Timnath, and the
North Poudre Irrigation Company. The study will be used as the basis for subsequent discussions and
potential agreements related to the dams, including capital improvements and long-term operations and
maintenance needs and responsibilities.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
A series of flood control dams were built along Boxelder Creek upstream of Fort Collins in the 1970s and
1980s to protect agricultural lands from flooding and erosion damage. At the time, the North Poudre Irrigation
Company (NPIC) acted as the local partner to build the dams with the United States Department of Agricultural
Soil Conservation Service, now called the Natural Resources Conservation Service (NRCS). NPIC currently
operates and maintains the dams, known as the “Boxelder Creek Watershed Dams” or the “B Dams.”
The Colorado Division of Water Resources, also known as the Colorado State Engineer’s Office (SEO),
administers the design, construction and repair of dams as well as dam safety inspections. The SEO has
upgraded the hazard classification of three flood control dams in the upper Boxelder Creek Watershed (B-2, B-
3 and B-4 dams) due to land use changes from agricultural use to urban/suburban land use in the downstream
watershed. Improvements are needed to the dam spillways as they are inadequately sized to pass major flood
events to maintain their certification for flood protection purposes.
A stakeholder group consisting of the City, Larimer County, the Towns of Wellington and Timnath, and NPIC
has been formed to study and ultimately form a plan to complete the needed capital improvements and on-
going maintenance needs. The Town of Windsor has been identified as an impacted party and invited to
participate, but so far has not opted into this discussion. Its participation will continue to be discussed as part
of this initiative.
Phase 1 of the project is to hire consulting services to assist the stakeholders with developing Phase 2 of the
project that will identify how construction of improvements and the maintenance can be shared by the
stakeholders.
Agenda Item 12
Item # 12 Page 2
Phase 1 of the project is to study the dams. A Phase 2 agreement is targeted be completed in spring 2020.
The study will be used as the basis for subsequent discussions and potential agreements related to the dams,
including capital improvements and long-term operations and maintenance needs and responsibilities. A
budget offer is expected in the 2021/2022 BFO cycle to address Fort Collins Utilities’ cost share of the
improvements.
The SEO’s change in the classification of the dams requires improvements to the emergency spillways of the
dams. NPIC has indicated they cannot complete these improvements and that they are not a flood protection
agency, so they are looking for the local governments who do provide flood protection services to their
communities to take responsibility for the dams. Upgrades to these dams to meet appropriate classifications is
important to the downstream communities to protect their investment for flood protection projects in the
Boxelder Creek Watershed. If these dams were to be decertified because of a lack of hazard rating, the
change to the floodplain downstream would be significant. This change in floodplain would impact over 1,000
residences and businesses in Larimer County, Wellington, Timnath, Fort Collins, and Windsor.
The NRCS has a program for cost share to make these improvements. Federal funding of up to 65% of the
costs of the improvements may be available if a local government agency will act as the local sponsor (35%)
and maintenance provider. Larimer County has indicated that they may act as the local sponsor along with
NPIC as long as the municipalities will contribute to the capital and maintenance costs of the dam
improvements in a fair and equitable manner.
The stakeholder group is actively working through the issues associated with these dams to bring forward
solutions and make the safety upgrades needed. The dams are located outside of the geographical jurisdiction
for the Boxelder Basin Regional Stormwater Authority (BBRSWA) and therefore not within the BBRSA’s
authority to administer the project.
CITY FINANCIAL IMPACTS
The maximum City’s share of this Phase 1 agreement is $50,000. After it has been negotiated, it is anticipated
that the agreement for Phase 2 will further delineate cost shares and responsibilities for each of the
government sponsors as well as the on going maintenance of the dams. Total Phase 2 costs are likely to be
significant, in the millions of dollars, though the actual amount of those costs, how they are structured, and how
they may be allocated among the parties has yet to be determined or negotiated. The agreement for Phase 2
will be brought to City Council for approval after it has been negotiated.
BOARD / COMMISSION RECOMMENDATION
At its June 20, 2019, the Water Board recommended City Council adopt the agreement with the stakeholder of
the Boxelder B-Dams to develop an approach for construction of upgrades and maintenance of the B-Dams in
the upper Boxelder Watershed up to a maximum of $50,000.
PUBLIC OUTREACH
Initial evaluations of the B-2 and B-3 rehabilitation alternatives were presented in several public meetings
hosted by NPIC and the NRCS. Several meetings with stakeholder representatives have been conducted over
the last 4 months.
ATTACHMENTS
1. Boxelder Creek Watershed Map (February 1971) (PDF)
2. Boxelder Creek Watershed B-2 Dam 100-Year Inundation Map (PDF)
3. Water Board Minutes, June 20, 2019 (Draft) (PDF)
ATTACHMENT 1
Attachment 2
Excerpt from Unapproved DRAFT MINUTES - WATER BOARD
REGULAR MEETING
June 20, 2019, 5:30 p.m.
222 Laporte Avenue, Colorado River Community Room
06/20/2019 – Excerpt from Unapproved DRAFT MINUTES Page 1
Boxelder B-Dams Upgrades
(Attachments available upon request)
Utilities Deputy Director Theresa Connor presented an overview of the project. The State
Engineer’s Office has upgraded the hazard classification of three flood control dams in the
upper Boxelder Watershed (B-2, B-3 and B-4 dams) due to land use changes from
agricultural use to urban/suburban land use in the downstream watershed. Improvements
are needed to the dam spillways as they are inadequately sized to pass major flood events
to maintain their certification for flood protection purposes.
A stakeholder group of Larimer County, and the cities of Wellington, Timnath, and Fort
Collins, and the North Poudre Irrigation Company (NPIC) has formed to develop an
intergovernmental agreement (IGA) to create a plan to complete the needed capital
improvements and on-going maintenance needs. NPIC’s board approved joining the IGA
on June 19.
The agreement’s first phase is to hire consulting services to assist the stakeholders with
developing a second phase agreement that would identify how stakeholders would share
the costs for construction of improvements and maintenance. The second phase would
occur in spring 2020, and a budget offer is expected in the 2021-2022 Budgeting for
Outcomes (BFO) cycle to address Fort Collins Utilities’ share.
Discussion Highlights: Board members commented on and inquired about various related
topics including whether the $300,000 cap was realistic for the study and consultant (Ms.
Connor stated the estimate is $120,000 for the consultant for the initial study, and the City
would be invoiced for one-fifth of that amount); a suggestion of lowering the cap to
$200,000 and not rely on the consultant to solve the problems; Ms. Connor mentioned the
time sensitivity: Natural Resources Conservation Service/United States Department of
Agriculture (NRCS) could do a cost share of up to 65% of the capital improvements cost of
more than $20 million if local governments respond in a timely manner (by spring 2020).
This item is scheduled to go to Council on July16, and project will start immediately
afterward.
WATER BOARD
REGULAR MEETING
06/20/2019 – Excerpt from Unapproved DRAFT MINUTES Page 2
Board Member Phyllis Ortman moved that Water Board recommend City Council adopt
an agreement with the stakeholders of the Boxelder B-Dams to develop an approach for
construction of upgrades and maintenance of the B-Dams in the upper Boxelder
Watershed up to a maximum of $50,000.
Vice Chairperson Jason Tarry seconded the motion.
Discussion on the motion: None
Vote on the Motion: it passed unanimously, 8-0
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RESOLUTION 2019-079
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH NUMEROUS STAKEHOLDERS REGARDING
A JOINT STUDY OF THE BOXELDER CREEK WATERSHED DAMS
WHEREAS, the watershed of Boxelder Creek includes various lands in northern Larimer
County, including lands in Fort Collins and its Grown Management Area; and
WHEREAS, Boxelder Creek flows from its headwaters in northern Larimer County
generally to the south and southeast, though farmlands and along the developed and developing
Interstate 25 corridor through various political boundaries towards its confluence with the Cache
la Poudre River in eastern Fort Collins; and
WHEREAS, Boxelder Creek is prone to potential flood risks; and
WHEREAS, to help address these flood risks, there is a series of dams upstream of Fort
Collins known as the Boxelder Creek Watershed Dams (commonly referred to as the “B Dams”)
which includes dams B-2, B-3, B-4, B-5, and B-6, which were constructed in or around the
1970s and 1980s, at a time when there was less development along Boxelder Creek downstream
of the B Dams; and
WHEREAS, the Colorado Department of Water Resources, Dam Safety Division, has
recently changed the classification of the B-2, B-3 and B-4 Dams from “significant” to “high”
hazard due to the increase in development along Boxelder Creek below these B Dams, and the
classification on the other dams, such as the B-5 and B-6 dams, may be changed in the future;
and
WHEREAS, the change of the classification of some of the B Dams has prompted a
regional conversation regarding the B Dams, including their operation and future; and
WHEREAS, the City, Larimer County, the North Poudre Irrigation Company, the Town
of Timnath, and the Town of Wellington (collectively, the “Parties”) each have significant
interests related to the B Dams; and
WHEREAS, the Parties are interested in funding and performing a joint study (“Study”)
of the B Dams in order to, among other things, gather the data, facts, and analyses necessary to
fully evaluate the B Dams and issues related to flood risks along Boxelder Creek; and
WHEREAS, the Parties intend to utilize the Study as a basis for subsequent discussions
and potential agreements related to the B Dams and the associated capital improvements that are
needed for these facilities; and
WHEREAS, the Parties have negotiated an agreement regarding the Study as set for the
in the draft Agreement attached hereto as Exhibit “A”, and incorporated herein by reference.
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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
16th day of July, A.D. 2019.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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AGREEMENT BETWEEN NUMEROUS STAKEHOLDERS REGARDING A
JOINT STUDY OF THE BOXELDER CREEK WATERSHED DAMS
This Agreement is entered into by and between the following Parties: the City of Fort
Collins, Colorado, a municipal corporation (“Fort Collins”); Larimer County, Colorado, a political
subdivision of the State of Colorado (“County”); the North Poudre Irrigation Company, a Colorado
corporation (“North Poudre”); the Town of Timnath, Colorado, a municipal corporation
(“Timnath”); and the Town of Wellington, Colorado, a municipal corporation (“Wellington”).
Fort Collins, North Poudre, Timnath, and Wellington are collectively referred to as the “Non-
County Parties.” The County, Fort Collins, Timnath, and Wellington are collectively referred to
as the “Governmental Parties.”
RECITALS
A. The watershed of Boxelder Creek includes various lands in northern Larimer County.
From the headwaters, Boxelder Creek flows generally to the south and southeast, though farmlands
and along the developed and developing Interstate 25 corridor through various political boundaries
(including those of some of the Parties) towards its confluence with the Cache la Poudre River in
eastern Fort Collins. Water from Boxelder Creek then flows down the Cache la Poudre River
generally to the east through more farmlands, developed and developing lands, and additional
political boundaries (including those of some of the Parties).
B. Like all streams, Boxelder Creek is prone to potential flood risks. To help address these
risks, there is a series of dams known as the Boxelder Creek Watershed Dams, and commonly
referred to as the “B Dams,” which includes dams B-2, B-3, B-4, B-5, and B-6. The B Dams were
constructed in or around the 1970s and 1980s, at a time when there was less development along
Boxelder Creek downstream of the B Dams.
C. The Colorado Department of Water Resources, Dam Safety Division, has recently changed
the classification of the B-2, B-3 and B-4 Dams from “significant” to “high” hazard, due to the
increase in development along Boxelder Creek below these B Dams. The classification on the
other dams, such as the B-5 and B-6 dams, may be changed in the future, but at this time there is
no intention of reclassifying the hazard classifications. See Office of the State Engineer Rules and
Regulations for Dam Safety and Dam Construction, 2 CCR 402-1. This has prompted a wider,
regional conversation regarding B Dams, including their operation and future.
D. Each of the Parties to this Agreement has significant interests related to the B Dams and is
interested in performing a joint study of the B Dams in order to, among other things, gather the
data, facts, and analyses necessary to fully evaluate the B Dams and issues related to flood risks
along Boxelder Creek. The Parties therefore desire a joint study of the B Dams (“Study”) as set
forth in detail below. The Study will primarily focus on the B-2, B-3, and B-4 Dams based on the
recent modified classification and provide insight and guidance on the potential for additional
classification changes to the other B Dams. The study will also consider if land use changes
EXHIBIT A
Page 2 of 11
downstream of B-5 and B-6 and upstream of B-2 could trigger potential upgrades to the B-5 and
B-6 dams.
E. The County intends to utilize an engineering firm that the County already has under
contract (“Consultant”), to perform the Study. The Non-County Parties will reimburse the County
for their portion of the Study as described below.
F. The Parties intend to utilize the Study as a basis for subsequent discussions and potential
agreements related to the B Dams and the associated capital improvements that are needed for
these facilities. Options for the long-term operations and maintenance needs and responsibilities
will also be considered, including potential reallocation of operation and maintenance
responsibilities.
G. The Governmental Parties are authorized into enter into the following intergovernmental
agreement pursuant to C.R.S. §29-1-203. As a corporation organized under Colorado law, North
Poudre is authorized to enter into this Agreement.
AGREEMENT
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as
if fully restated in their entirety.
2. THE SCOPE. The scope of the Study (“Scope”) shall include:
• Coordination of the relevant activities of the Parties and the United States Department
of Agriculture, Natural Resources Conservation Service related to improvements and
funding of capital improvements and maintenance needs for the B-2, B-3 and B-4 Dams
required because of the classification change;
• An analysis of potential cost-share approaches to future capital and operation and
maintenance costs of the B-2, B-3, and B-4 Dams. The Consultant will review and
update available cost estimates for the B-2 and B-3 dams and develop a cost estimate
for the B-4 dam. The cost estimate for the B-4 dam will be a planning level estimate
based on current data available;
• Conduct an assessment of the potential reclassification of the B-5 and B-6 dams
including a high-level risk and financial implications and make recommendation(s) for
potential improvements needed.
• An assessment of the B Dams, including the liabilities and risks associated with
potential future reclassification and therefore needing future improvements.
• The Parties will meet with the Consultant to further jointly develop and modify the
Scope as may be necessary. Before the Consultant begins the Study, each of the Parties
shall confirm in writing (such as by email or otherwise) that any modifications to the
Scope are acceptable. The total costs of the Study shall be limited to $250,000.
3. OUTCOME OF PROJECT AND SCOPE OF WORK. The intent of this scope of work is
to gather data and facts to develop recommendations for a second phase agreement that will
identify a methodology to fund the capital improvements of the appropriate dams. The scope
Page 3 of 11
of work will also evaluate alternatives for meeting long-term operations and maintenance
responsibilities between the Parties, to be part of a second phase agreement. The stakeholders
will need to actively participate and shape recommendations for the second phase IGA, so that
it can be supported for implementation.
4. COOPERATION WITH THE STUDY. The County shall be responsible for engaging
the Consultant to conduct the study. The Non-County Parties agree to cooperate in good faith with
the County and the Consultant for the Study, including: developing and modifying the Scope, as
necessary; reviewing and providing comments on draft analyses and reports generated by the
Consultant as part of the Study in its development and completion; and providing information
needed to complete the Study to the Consultant, in a timely manner. The County agrees to work
in good faith to ensure that the Non-County Parties have a meaningful opportunity to review and
provide comments as discussed above, and to address comments.
5. OWNERSHIP OF THE STUDY. Each of the Parties will be an owner of the Study and
all other deliverables provided by the Consultant on the Study (including, but not limited to,
analyses, analytical tools, data, models, and reports and drafts thereof). The County shall provide
the Non-County Parties with a copy of the draft and final reports, as well as the data, analytical
tools, and all other information generated by the Consultant in association with the Study that are
related to their systems within 14 days of the County’s receipt of the same, subject to the terms
and conditions of this Agreement.
6. REIMBURSEMENT TO THE COUNTY. Each of the Non-County Parties shall pay
the County 1/5
th
of the total cost of the Study, up to a maximum of $50,000, within 45 days of
receiving an invoice from the County for the same. The County may withhold providing any of
the documents identified in Paragraph 5 to any Non-County Party until payment has been made
by that Non-County Party.
7. FISCAL CONTINGENCY. Notwithstanding any other provisions of this Agreement to
the contrary, the obligations of the Governmental 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 Governmental Part to appropriate such funds shall
be grounds for termination of this Agreement as to such Party upon written notice pursuant to
Paragraph 11.
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.
Page 4 of 11
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 ar 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: WEFS Deputy Director
700 Wood Street; PO Box 580
Fort Collins, Colorado 80522
E-mail: tconnor@fcgov.com
To County: County Manager
Larimer County Courthouse Offices
200 West Oak St, 2
nd
Flood; PO Box 1190
Fort Collins, CO 80522-1190
Page 5 of 11
With copy to: Larimer County Attorney’s Office
PO Box 1606
Fort Collins, CO 80522
With copy to: Larimer County Engineering Department
Attn: County Engineer
200 West Oak St., Suite 3000; PO Box 1190
Fort Collins, CO 80522-1190
To North Poudre: General Manager
Tad Moen
North Poudre Irrigation
3729 Cleveland Ave
Wellington, CO 80549
With copy to: John Justus, Shareholder
Hoskin Farina & Kampf
PO Box 40
Grand Junction, CO 81502
To Timnath: Timnath Town Manager
4750 Signal Tree
Timnath, CO 80547
With copy to: Town Attorney
White Bear Ankele Tanaka & Waldron
2154 East Commons Avenue, Suite 2000
Centennial, CO 80122
With copy to: Donald Taranto
748 Whalers Way, Suite 200
Fort Collins, CO 80525
To Wellington: Town Administrator
PO Box 127,
Wellington, CO 80549
With copy to: Wellington Public Works
Attn: Robert Gowing
PO Box 127,
Wellington, CO 80549
Email: gowingbj@wellingtoncolorado.gov
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With copy to: March Olive and Pharris, LLC
Attn: Brad March
1312 S College Ave
Fort Collins, CO 80524
Email: Bmarch@bmarchlaw.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]
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CITY OF FORT COLLINS, COLORADO, a municipal corporation
By: ______________________________________ Date:
Darin A. Atteberry, City Manager
ATTEST:
By: ______________________________________
City Clerk
APPROVED AS TO LEGAL FORM:
By: ______________________________________
City Attorney’s Office
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LARIMER COUNTY, COLORADO, a political subdivision of the State of Colorado
By: ________________________________________ Date:
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NORTH POUDRE IRRIGATION COMPANY, a Colorado corporation
By: ________________________________________ Date:
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TOWN OF TIMNATH, COLORADO, a municipal corporation
By: ______________________________________ Date:
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TOWN OF WELLINGTON, COLORADO, a municipal corporation
By: ______________________________________ Date: