HomeMy WebLinkAbout2021-037-04/20/2021-AUTHORIZING THE CITY MANAGER TO SIGN AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF GREELEY AND LAR
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INTERGOVERNMENTAL AGREEMENT
REGARDING REHABILITATION WORK FOR THE CAMERON PEAK FIRE
THIS AGREEMENT dated ____________________, 2021, is entered into by and between
the following Parties: the City of Fort Collins, Colorado, a Colorado municipal corporation
(“Fort Collins”); the City of Greeley, a Colorado municipal corporation (“Greeley”); and Larimer
County, Colorado (together, “Managing Entities”).
RECITALS
A. The 2020 Cameron Peak Fire (“Fire”) has burned over 200,000 acres in the watersheds of
the Cache la Poudre (“Poudre”) River and Big Thompson River.
B. The Fire has also burned large areas in and impacting private properties, and public
infrastructure serving such properties, including roadways, bridges, culverts, and other public
service facilities outside of the public right of ways.
C. Greeley and the Water Supply and Storage Company immediately undertook measures to
mitigate hazards and damages to drinking water supplies at the Chambers Reservoir.
D. The Managing Entities each divert and treat, and/or take deliveries of water from the
Poudre River watershed and the Colorado Big Thompson (“CBT”) Project, and/or maintain public
infrastructure supporting private properties located in the basins affected by the Fire.
E. Through the Emergency Watershed Protection Program, administered by the Natural
Resources Conservation Service ("NRCS"), United States Department of Agriculture, Greeley and
Larimer County separately received funding for post-fire mitigation and infrastructure protection
efforts related to the Fire (“EWP funds”).
F. In addition to EWP funds, various funds, grants, programs, and other monetary and other
resources may be or become available to assist the Managing Entities to address and mitigate
damages from the Fire in the Poudre River and CBT Project watersheds (“non-EWP funds”).
G. Use of EWP funds may be restricted to pre-approved scopes of services and a local
government “cost-share”, with EWP funds applied to a percentage of the project’s costs, and the
entity(s) awarded the funds being responsible for the remaining percentage. Terms and scopes of
services applicable to use of non-EWP funds will be set forth in a separate agreement(s).
H. The Managing Entities desire to coordinate efforts to acquire the most funding possible
and to efficiently and effectivity utilize EWP funds to address and mitigate damages from the Fire
in the Poudre River and CBT Project watersheds.
I. Greeley and Larimer County agree to be the main contacts and contracting parties for EWP
funds.
EXHIBIT A
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J. All Parties agree to independently engage other federal and state agencies as practical, for
the purposes of seeking and acquiring non-EWP funds, as defined below. As set forth herein,
Greeley and Larimer County will coordinate with Fort Collins and other contributing parties to
this Agreement to acquire and seek reimbursements under grant and program funding
requirements.
K. Fort Collins and other water users that become contributing parties to this Agreement will
also contribute matching funds to the cost-share portion of certain projects, as may be required by
the terms associated with EWP funds applied under this Agreement.
L. The Managing Entities desire to work with the Coalition for the Poudre River Watershed
(“CPRW”), a Colorado nonprofit corporation, to manage certain projects undertaken under this
Agreement, as set forth in Paragraph .
M. The Managing Entities also desire to include other impacted water users in these efforts,
including water providers and local governmental entities that may desire to become Parties in the
future. The pressing need for this Agreement, and the shifting nature of Fire impacts have made
it difficult for these other water users and entities to complete their internal evaluations and
processes regarding whether to become a Party. Consequently, this Agreement includes a process
to add “Contributing Parties” to this Agreement.
N. The Managing Entities desire to enter into an intergovernmental agreement to coordinate
emergency stabilization and restoration services, e.g., hillslope mulching, debris catchment
systems, vegetation matting, seeding, rock netting, on the targeted public and private lands burned
by the Fire.
O. The Managing Entities wish to record their mutual understanding in intergovernmental
agreements.
P. The Managing Entities enter this into agreement pursuant as permitted §29-1-203, C.R.S.
Q. Pursuant to Art. II, § 16 of the Fort Collins City Charter, the Fort Collins City Council,
may, by ordinance or resolution, enter into contracts with other governmental bodies to furnish
governmental services and make charges for such services or enter into cooperative or joint
activities with other governmental bodies.
R. Pursuant to Section 02.07.040, Greeley Municipal Code, Greeley may enter into contracts
with other governmental bodies to furnish governmental services and make charges for such
services or enter into cooperative or joint activities with other governmental bodies, the entry into
such contracts being subject to the approval of the Greeley City Council under certain
circumstances.
S. The authority for this Agreement is, without limitation, Section 18 of Article XIV of the
Colorado Constitution; Section 6 of Article XX of the Colorado Constitution; Section 29-1-203,
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C.R.S., and provisions of the Colorado Disaster Emergency Act, Section 24-33.5-701, et seq.,
C.R.S., as amended.
T. It is in the best interest of the citizens of Fort Collins, Greeley, and Larimer County for the
parties to enter into this intergovernmental agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements
hereinafter set forth, it is agreed by and between Fort Collins, Greeley, and Larimer County as
follows:
AGREEMENT
1. AUTHORITY. This Agreement has been duly adopted by the Parties' governing bodies
and the undersigned representatives are authorized to execute this Agreement on behalf of each
respective Party.
2. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as
if fully restated in their entirety.
3. PARTIES TO THIS AGREEMENT.
3.1. Principals. For purposes of completing the work described in this Agreement,
portions will be delivered within the scopes of the respective funding award contracts
secured by Greeley and Larimer County, and each funding recipient will take the lead in
preparing and submitting reimbursements for costs associated with such work, as follows:
1. Category 1 – watershed work. Greeley will take the lead for purposes of
initiating access to EWP funds and establishing the initial scope of qualifying
watershed work, including hillslope and stream channel stabilization, erosion
control, water supply infrastructure protection, and water quality work.
2. Category 2 – property and infrastructure work. Larimer County will take
the lead for purposes of initiating access to EWP funds and establishing the initial
scope of qualifying services for addressing impacts to private residences, roads,
bridges, culverts and other public facilities outside of the public right of ways.
3. The Managing Entities will share responsibilities for mutually beneficial
portions of qualifying Category 1 and 2 services and coordinating with third party
project management services for Category 1 work.
3.2. Addition of Parties. Any other water user or local agency in the Poudre River
watershed or that takes delivery of CBT Project water may become a “Contributing Party”
to this Agreement by completing the Schedule of Participants addendum to this Agreement
in the form of Exhibit B to be signed by all Parties.
3.3. Withdrawal of Parties. Any Party may withdraw itself from this Agreement by
providing written notice pursuant to Paragraph 12. The withdrawing Party shall continue
to be responsible for any commitments or contributions made prior to withdrawal.
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4. FUNDING.
4.1. EWP Technical Assistance Funds. The EWP Sponsors, Greeley and Larimer
County, will initially pay costs associated with NCRS-approved Technical Assistance
Work under this Agreement, initial estimates for which and the associated work scoped are
set forth in Exhibit A, attached hereto ("TA Funds"). EWP Sponsors may also pursue
additional TA Funds for work later approved by NRCS, the work scopes for which will be
incorporated in Exhibit A as amendments. Costs associated with approved TA Funds Work
are ultimately 100% reimbursable.
4.2. EWP Construction Funds. In 2020, NRCS also awarded Financial Assistance
funds ("FA Funds") to Greeley and Larimer County, respectively, for aerial mulching and
enhanced mitigation efforts. Initial FA Funds awards and the associated work scopes
approved by NRCS are set forth in Exhibit A.
4.3. Local Matching Funds. Under the respective FA Funds notices of award (a/k/a
EWP funds) the Parties are required to expend certain local matching funds, anticipated to
be 20 percent of the EWP funds. The Parties anticipate total funding for the Work during
the Term will increase from the initial amounted described in Exhibit A, as additional EWP
funds become available, Contributing Parties join this Agreement, and project work orders
are developed.
4.4. Other funding. The Parties may also pursue non-EWP funds and resources to
complete projects associated with the Work, the costs for which the Parties will work in
good faith to equitably share, based on a “percent of Poudre River water use” cost-share
model, or as may be identified in separate agreements for such projects and as referenced
in amendments to Exhibit A.
5. APPORTIONMENT OF COSTS AND DUTIES.
5.1. Project Cost Allocation.
1. Project costs will be allocated as follows for individual projects the Parties
agree to pursue under this Agreement:
• EWP funds will be used first to the maximum extent possible towards
project costs, including submittal of reimbursement applications against
the initial NRCS award amounts described in Paragraph 4;
• Any remaining costs will be allocated among the Managing Entities that
would benefit directly and indirectly from the project, according to criteria
mutually agreed to by the participating parties at the time of project
commencement (“Benefit Cost Allocation Methodology”).
2. For projects Greeley agrees to pursue directly with Contributing Parties who
are also water service users, project costs will be allocated based on the
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participating parties’ respective average annual percent municipal diversions
from the Cache La Poudre river for the years 2015 to 2019 (“Water User Cost
Allocation Methodology”).
5.2. Category 1 Project Management.
1. Greeley may advertise and request bid proposals ("Proposal") for post-fire
aerial mulching services and other post-fire mitigation services for Category
1 Work, and Greeley and Fort Collins will select a general contractor based on
the criteria set forth in the Proposal.
2. Upon selection of a general contractor to perform the designated Category 1
Work, Greeley shall execute a contract with the selected general contractor
("Cat 1 Contract") and will be identified as the owner therein for such projects,
which may include work designed by or with a shared benefit for Fort Collins
and/or Larimer County.
3. As specified in the terms of the Cat 1 Contract, the selected general contractor
will first invoice Greeley directly, up to and not to exceed any amount to which
Greeley has agreed pursuant to an executed NRCS notice of award, for
the designated Category 1 Work. After receiving EWP reimbursements,
Greeley will divide non-reimbursable Category 1 Work project costs among
the project partners, including Fort Collins and benefited Contributing Parties,
pursuant to either the Benefit or Water User Cost Allocation Methodology as
appropriate.
5.3. Category 2 Project Management.
1. Larimer County may advertise and request bid proposals ("Proposal") for post-
fire aerial mulching services and other post-fire mitigation services for
Category 2 Work and will select a general contractor based on the criteria set
forth in the Proposal.
2. Upon the selection of a general contractor to perform the designated Category
2 Work, Larimer County shall execute a contract with the selected general
contractor ("Cat 2 Contract") and will be identified as owner therein
for such projects, which may include work designed by or with a shared benefit
for county partners.
6. PROJECTS. The projects (“Work”) performed under this Agreement and subject to the
EWP fund reimbursement conditions shall fall within the objectives outlined in the scope of
services and contract between the local government entity and NRCS, as described in Exhibit A,
attached hereto, and incorporated by this reference. Reimbursement obligations for such Work
shall be subject to cost distributions and conditions set forth in the respective funding contract.
Any (additional) Work requested by a Party that NRCS may subsequently approve for
reimbursement with EWP funds will be set forth in an amendment to Exhibit A.
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7. PROJECT PLANNING.
7.1. Decision Making. In making decisions on which projects fall under Category 1 or
Category 2 to pursue and the allocation of project costs, the Parties shall operate by
consensus. To this end, the Parties shall make a good faith effort to reach consensus,
propose alternative solutions, and otherwise work to resolve any issues that prevent
consensus. Any decisions involving the use of a particular Parties’ lands or structures may
only be made with the consent of that Party in its sole discretion.
7.2. Project Identification and Prioritization. The Parties will identify potential
projects on which to use the EWP funds. The Parties’ identification of potential projects
and the order in which they are taken on and completed will be guided by the following
considerations:
• The need and expected benefit of the project;
• The entities that would benefit directly and indirectly from the project;
• The cost of the project, including whether EWP funds can be applied towards the
project’s costs;
• Accessibility of the project location; and
• Administrative, legal, and/or regulatory steps associated with the project, including
receiving approval for the project to be eligible for funds, such as necessary
permits; and
7.3. Project Selection. For projects the Parties agree to pursue under this Agreement,
Greeley and Larimer County will provide a written summary, including: a description of
the project work; a timeline; and the project cost allocation (“Project Summary”), which
may be initially prepared by a third-party contractor. A scope of work provided by the
contractor hired to undertake such project may be used as the Project Summary, if it
contains the information described in this paragraph.
• Category 1 Projects: Greeley will circulate a draft Project Summary to the
Contributing Parties for review and comment. Greeley and the Contributing Parties
must mutually approve the Project Summary in writing prior to project
commencement. After the Project Summary is approved, Work may commence,
and as projects under this Agreement are completed, Greeley will invoice the
Contributing Parties for project costs not reimbursed by EWP funds, according to
the Project Summary. Greeley will prepare an annual work summary for projects
completed under this Agreement and submit the summary to the Parties by
December 31. The annual summary will exclude any projects that Greeley or
Larimer County take on independently or without involvement of other Parties.
• Category 2 Projects: Larimer County will circulate a draft Project Summary to
the Contributing Parties for review and comment. Larimer County and the
Contributing Parties must mutually approve the Project Summary in writing prior
to project commencement. After the Project Summary is approved, Work may
commence, and as projects under this Agreement are completed, Larimer County
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will invoice the Contributing Parties for project costs not reimbursed by EWP
funds, according to the Project Summary. Larimer County will prepare an annual
work summary for projects completed under this Agreement and submit the
summary to the Parties by December 31. The annual summary will exclude any
projects that Greeley or Larimer County take on independently or without
involvement of other Parties.
8. CPRW PROJECT MANAGEMENT. Greeley and Fort Collins may secure project
management (PM) services through the Coalition for the Poudre River Watershed (“CPRW”) to
coordinate post-fire project implementation and ensure the Work is completed. The terms of
CPRW’s engagement will be documented in a separate agreement, under which Fort Collins will
reimburse Greeley for a portion of the PM costs. Greeley and Fort Collins may choose to maintain
and oversee CPRW’s delivery of PM services through resources employed directly by CPRW. The
initial focus of the PM service will be EWP fund Category 1 projects, with accommodation for
other priorities identified in this Agreement as resources and funding conditions may permit.
9. OTHER FIRE-RELATED EFFORTS. Nothing in this Agreement shall impact the
ability of any Party to perform other activities to address and mitigate damages from the Fire in
the Poudre River and CBT Project watersheds, including efforts with affiliated local agencies
affected by the Fire that may seek to coordinate with Work performed under this Agreement, e.g.,
City of Fort Collins Natural Areas.
10. 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 each
governmental Party having the sole discretion to determine whether the subject funds are sufficient
and intended for use under this Agreement, and the failure of any governmental Party to
appropriate such funds shall be grounds for the Party to withdraw from this Agreement with written
notice pursuant to Paragraph 12.
11. NO THIRD-PARTY BENEFICIARIES. This Agreement is entered into among 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.
12. NOTICES. All notices or other communications hereunder shall be sufficiently given and
shall be deemed given when personally delivered, or after the lapse of five 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
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epotyondy@fcgov.com
and: Fort Collins Utilities
Attn: Water Resources Manager
700 Wood Street
Fort Collins, Colorado 80521
ddustin@fcgov.com
To Greeley: Greeley Water and Sewer Department
Attn: Director of Water and Sewer
1001 11th Avenue, Second Floor
Greeley, Colorado 80631
sean.chambers@greeleygov.com;
jennifer.petrzelka@greeleygov.com
With a copy to: Greeley City Attorney’s Office
Attn: Environmental and Water Resources
1100 10th Street, Suite 401
Greeley, Colorado 80631
daniel.biwer@greeleygov.com
To Larimer County: County Manager
200 W. Oak Street
Fort Collins, CO 80522
With copy to: Office of Emergency Management
Attn: Director OEM
200 W. Oak Street
Fort Collins, Colorado 80522
13. NO WAIVER OF IMMUNITY. NO WAIVER OF IMMUNITY. Nothing herein shall
constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or
other provisions of the Colorado Governmental Immunity Act (“CGIA”), C.R.S. §24-10-101, et
seq., or the Federal Tort Claims Act (“FTCA”) 28 U.S.C. 2671 et seq., as applicable, as now or
hereafter amended nor shall any portion of this Agreement be deemed to have created a duty of
care which did not previously exist with respect to any person not a party to this Agreement.
Liability for claims for injuries to persons or property arising from the negligence of the Parties,
its departments, institutions, agencies, boards, officials, and employees is controlled and limited
by the provisions of the CGIA or the FTCA as applicable, as now or hereafter amended.
14. NON-LIABILITY AND INSURANCE-GENERAL. This Agreement shall not be
construed to create a duty as a matter of law, contract, or otherwise for any Party to assume any
liability for injury, property damage, or any other loss or damage that may occur by any action, or
non-action taken, or service provided, to the public or any person, as a result of this Agreement.
Each Party shall take all necessary precautions in performing the work hereunder to prevent injury
to persons and property as a result of any act or omission of a Party, or its employees, agents, or
assignees pursuant to the terms of this Agreement, Each Party retains all obligations and
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protections afforded by the provisions of the Colorado Governmental Immunity Act, C.R.S. 24 -
10-101 et. seq., as the same may be amended from time to time.
15. GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado, except for conflicts of laws provisions. The forum for any
dispute regarding this Agreement shall be in the Weld County District Court, State of Colorado.
16. 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.
17. 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.
18. AMENDMENTS. Any amendments or modifications to this Agreement must be in writing
and executed by all parties to be valid and binding.
19. REPRESENTATIONS. Each Party represents to the other Parties that it has the power
and authority to enter into this Agreement and the individuals signing below on behalf of that Party
have the authority to execute this Agreement on its behalf and legally bind that Party.
20. ASSIGNMENT. No Party may assign any rights or delegate any duties under this
Agreement without the written consent of all other Parties.
21. SEVERABILITY. If any provision of this Agreement shall be found illegal, invalid,
unenforceable, or impossible to perform by a court of competent jurisdiction, the remainder of this
Agreement shall remain in full force and effect.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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CITY OF FORT COLLINS, COLORADO, a Colorado municipal corporation
By: __________________________________ Date:
Darin Atteberry, City Manager
ATTEST:
_______________________________
City Clerk’s Office
Printed Name: ___________________
Title: __________________________
APPROVED AS TO FORM:
________________________________
Printed Name: ___________________
Assistant City Attorney
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CITY OF GREELEY, COLORADO, a home rule municipal corporation
By: __________________________________ Date:
Roy Otto, City Manager
AS TO LEGAL FORM:
By: ________________________________________
City Attorney
AS TO AVAILABILITY OF FUNDS:
By: ________________________________________
Director of Finance
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LARIMER COUNTY, COLORADO, a county subdivision of the State of Colorado
By: __________________________________ Date:
Chairman of Board of County Commissioner
AS TO LEGAL FORM:
By: ________________________________________
County Attorney
AS TO AVAILABILITY OF FUNDS:
By: ________________________________________
Director of Finance
Exhibit A
Scope of Coordinated Services
Greeley and Larimer County intend to use EWP funds are for the implementation of recovery
measures, which left undone, pose a threat to life and or property. Example recovery projects
may include, but are not limited to, erosion and sedimentation prevention, debris removal, and
structure protection from the threat of future flooding due to the Cameron Peak Fire.
Examples of Project Types:
I. Direct Remediation
a. Category 1 services.
• Mulching of hillslopes
• Hillslope stabilizations such as waddles, tree welling, etc.
• Sedimentation basins
• Erosion Control Measures
• Stream Channel Stabilization
• Seeding/ Revegetation / Reforestation
b. Category 2 services.
▪ Repair or upgrades to culverts, bridges, and roads
▪ Debris removal
▪ Flooding prevention structures
▪ Hazard Tree Removal
▪ Hillslope protection / stabilization
▪ Warning Signage
▪ Stream channel stabilization
▪ Seeding/ Revegetation / Reforestation
II. Project Management
As needed, Greeley and Fort Collins will jointly select and coordinate through
Greeley a third-party project manager (“PM Work”) to oversee organization of
Projects under this Agreement and related work, including Category 2 services for
which Larimer County may be involved. The Managing Entities will equitably
apportion the cost of PM Work, based on the respective benefits realized by the
Parties, to be paid from individual resources without seeking NRCS reimbursement.
Exhibit B
Participating Parties
The following local governmental entities are the principal parties to this Agreement, “Managing
Entities”:
- CITY OF FORT COLLINS, COLORADO a home-rule municipality (“Fort Collins”) with
principal offices at 300 LaPorte Avenue, Fort Collins, Colorado 80521
- CITY OF GREELEY, COLORADO, a home-rule municipality (“Greeley”) with principal
offices of its Water and Sewer Department at 1001 11th Avenue, Second Floor, Greeley,
Colorado 80631
- LARIMER COUNTY, COLORADO, a county subdivision of the State of Colorado
(“Larimer County”) with principal offices at […], Fort Collins, Colorado […]
The following entities are Contributing Parties to this Agreement, whose obligations and
contributions to the Work described in this Agreement may be different than those of the Managing
Entities, as set forth in addenda to this Exhibit B:
- ____________________________________________, with principal offices at […]
(Organization Name)
- ____________________________________________, with principal offices at […]
(Organization Name)
(Form of Addendum to Add a Party)
CONTRIBUTING PARTY ADDENDUM TO
AGREEMENT REGARDING REHABILITATION WORK
FOR THE CAMERON PEAK FIRE
This Addendum, dated ____________________, 2020, is entered into by and between
the Parties to the Agreement Regarding Rehabilitation Work for the Cameron Peak Fire
(“Agreement”) and , a (“New
Party”).
1. The New Party has reviewed the Agreement as desires to become a “Contributing Party”
thereto. The Parties to the Agreement agree to permit the New Party to become a Contributing
Party to the Agreement for purposes of the following □ Category 1; □ Category 2 services:
[…]
2. The New/Contributing Party represents to the other Parties that it has the power and
authority to enter into this Agreement and the individuals signing below on behalf of the
New/Contributing Party have the authority to execute this Agreement on its behalf and legally
bind the New/Contributing Party.
3. For purposes of Paragraph 12 of the Agreement, the contact information of the
New/Contributing Party is:
To :
, a
By: __________________________________ Date:
[Insert signature pages of other Parties]