HomeMy WebLinkAbout2023-105-12/05/2023-AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND NUMEROURESOLUTION 2023-105
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT
BETWEEN THE CITY OF FORT COLLINS AND NUMEROUS STAKEHOLDERS
REGARDING OPERATION AND MAINTENANCE OF
BOXELDER CREEK WATERSHED DAMS (B DAMS B-2,8-3,AND 8-4)
WHEREAS,the watershed of Boxelder Creek includes various lands in northern Larimer
County,including lands in Fort Collins and its municipal boundaries and Growth 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
hi 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,which includes dams B-2,8-3,8-4,8-5,
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,this Resolution and the Agreement referenced herein only concern the
Boxelder Creek Watershed Dams 8-2,8-3,and 8-4,hereinafter referred to as the “B Dams”;and
WHEREAS,Colorado Division of Water Resources,Dam Safety Branch changed the
classification of the B Dams from “Moderate Hazard”to “High Hazard”on or around July 11,
2013,pursuant to the Rules and Regulations for Dam Safety and Construction,2 CCR 402-1,due
to the increase in development along and in the Boxelder Creek floodplain below these flood
control structures;and
WHEREAS,the change of the classification of the B Dams prompted a regional
conversation regarding the B Dams,including their operation and maintenance;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
WFIEREAS,pursuant to the City’s Resolution 2019-079 and relevant authorizations for
the other Parties,the Parties funded and performed a joint study of the B Dams (“Study)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
WI-IEREAS,using the Study and other relevant information,the Parties have negotiated
an agreement regarding the operation and maintenance of the B Dams (the “Agreement”)attached
hereto as Exhibit “A”,and incorporated herein by reference;and
WI-IEREAS,the City Manager and City staff have recommended approval of the
Agreement by the City Council.
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 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 Ordinance.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 5th
day of December,2023
ATtEST:
S
City Clerk
EXHIBIT A TO RESOLUTION 2023-105
AGREEMENT REGARDING OPERATION AND MAINTENANCE OF
BOXELDER CREEK WATERSHED DAMS
(B DAMS B-2,B-3,and B-4)
This Agreement,dated and effective ____________,is entered into by the following Parties:
•Board of County Commissioners of Larimer County,a political subdivision of the State of
Colorado;
•North Poudre Irrigation Company,a Colorado mutual ditch and reservoir company;
•City of Fort Collins,a Colorado municipal corporation;
•Town of Timnath,a Colorado municipal corporation;and
•Town of Wellington,a Colorado municipal corporation.
*See Paragraph 2for a list of defined terms used in this Agreement *
RECITALS
Boxelder Creek Watershed
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,through
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.
B.Water from Boxelder Creek then flows down the Cache Ia Poudre River generally to the
east through more farmlands,developed and developing lands,and additional political boundaries
(including those of some of the Parties).
General History of the Boxelder Creek Watershed Dams
C.Boxelder Creek is prone to potential flood risks.To help address these risks,the Boxelder
Creek Watershed Dams B-2,8-3,B-4,B-5,and B-6 were constructed in or around the 1970s and
1980s,at a time when there was less development along Boxelder Creek and its floodplain
downstream.This Agreement,however,is with respect to the Boxelder Creek Watershed Dams
B-2,B-3,and B-4 only,hereinafter referred to as the “B Dams.”
D.The original sponsors for the B Dams included the Fort Collins Soil Conservation District,
the West Greeley Soil Conservation District,Larimer County,North Poudre,the Frontier Soil
Conservation District,the Laramie Rivers Soil Conservation District,and the Colorado State Soil
Conservation Board,with assistance from the U.S.Soil Conservation Service.
E.The purpose of the B Dams is described in the report entitled “Watershed Work Plan
Boxelder Creek Watershed Larimer &Weld Counties,Colorado Albany &Laramie Counties,
Wyoming dated February 1971.”That report states:“[tihe project objectives are to reduce
damages to agricultural land and crops,irrigation facilities,farmsteads,highways,embankments
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EXHIBIT A TO RESOLUTION 2023-105
and bridges from 10 year frequency storms or larger and to the town of Wellington from the 100-
year frequency storms.”
Ownership and Operation of the B Dams
F.North Poudre holds fee simple ownership of the land around the B Dam B-2.See Larimer
County Assessor Parcels 9024000945,9024000949,8027000936.Fee simple ownership of
portions of the land encompassing the upstream impoundment area and portions of the land
downstream of the outlet are owned by non-parties to this Agreement.
G.North Poudre holds fee simple ownership of the land for the spillway of the B Dam B-3.
See Larimer County Assessor Parcel 8027000936.Fee simple ownership of portions of the land
encompassing the upstream impoundment area,the dam,and portions of the land downstream of
the outlet and spillway are owned by non-parties to this Agreement,and occupation and use of
those lands is pursuant to applicable agreements and easements.
H.Fee simple ownership of the land encompassing the dam of B-Dam B-4,upstream
impoundment areas outlet and land downstream is owned by non-parties to this Agreement,and
occupation and use of the land is pursuant to applicable agreements and easements.
I.North Poudre entered into an agreement with the U.S.Soil Conservation Service for
Operations and Maintenance of Floodwater Retarding Structure Dam B-2 and B-2 Diversion on
January 4,1980.
J.North Poudre entered into an agreement with the U.S.Soil Conservation Service for
Operations and Maintenance of Floodwater Retarding Structure Dam 8-3 on February 21,1977.
K.North Poudre entered into an agreement with the U.S.Soil Conservation Service for
Operations and Maintenance of Floodwater Retarding Structure Dam B-4 on June 30,1976 and
revised on September 16,1980.
Dam Safety Office Reclassification of the B Dams
L.The Dam Safety Office changed the classification of the B Dams from “Moderate Hazard”
to “High Hazard”on or around July 11,2013 pursuant to the Dam Safety Regulations due to the
increase in development along and in the Boxelder Creek floodplain below these flood control
structures.’
M.The Management Committee (originally called the technical advisory committee)was
formed to provide technical input and representation of the Parties.Under direction from the
Management Committee,consulting services were acquired from SEH and paid for by
contributions from the Parties.
The classification of B Dams B 5 and B-6 may be changed in the future,but at this time the Dam Safety Office had
not communicated any intent to reclassify the hazard classifications of those two structures,which are not the
subject of this Agreement.
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EXHIBIT A TO RESOLUTION 2023-105
N.NRCS contracted with Golder Engineering to study B Dams B-2 and B-3.The product of
that engagement was the Golder Report.The Golder Report identified and recommended
significant structural improvements to B Dams B-2 and B-3 for attaining compliance with Dam
Safety Regulations.Under the direction of the Management Committee,SEH was engaged and
identified and structural improvements to B Dam B-4 for purposes of compliance with the Dam
Safety Regulations.
0.The Dam Safety Office performed a Qualitative Risk Assessment utilizing comprehensive
dam safety evaluation tools and methodologies by plotting “Likelihood of Failure”against the
“Consequence Category”for overtopping dam failure and found that the B Dams fall within an
“Acceptable”risk range suggesting no immediate need for action to reduce the probability of
failure.2 With this additional assessment,the Dam Safety Office determined that the structural
improvements identified in the Golder Report and the SER Report would not be required for the
B Dams to be in compliance with the Dam Safety Regulations.
P.The risk assessment performed by the Dam Safety Office assumed an up-to-date EAP
would be developed and assumed appropriate warning and response to any hydrologic events in
the Boxelder Creek basin would be in place and recommended the following for the B Dams:
1.Provide a clear designation of ownership and responsibility for operations and
maintenance and decision making for the B Dams.
2.Available funding should be directed toward routine regular maintenance and
repairs to ensure dam operation and reduce the likelihood of failure to the lowest
level.
3.A robust emergency action planning program should be used to mitigate
consequences associated with extreme spillway releases from the B Dams in
addition to those associated with dam failures.
4.Existing available funding should be used for focused improvements to
instrumentation,warning systems,and EAP activities to ensure reduction of
consequences for a range of hydrologic events.
5.Inundation mapping for spillway flows should be part of the EAP for each of
the B Dams.
6.While enlarging the spillways of the B Dams may further reduce the likelihood
of an overtopping failure,enlarging beyond a certain point may result in adverse
impacts.Larger spillway flows alone increase the risk to the populations
currently at risk downstream.A sensitivity analysis should be used to identify
2 The Analysis and Conclusions of the Qualitative Risk Assessment performed by the Dam Safety Office for B Dam
B-2 is found in a memo entitled “Boxelder B-2 Dam Spillway Adequacy and Hydrologic Hazard Analysis
Memorandum”dated April 16,2020.
The Analysis and Conclusions of the Qualitative Risk Assessment performed by the Dam Safety Office for B Dam
B-3.is found in a memo entitled “Revised Spillway Adequacy and Hydrologic Hazard Analysis Workshop Results
Floodwater Ret.B 3 (aka Boxelder Dam B-3),DAMID 030415 SEH No.152112”dated September 11,2020.
The Analysis and Conclusions of the Qualitative Risk Assessment performed by the Dam Safety Office for B Dam
B-4,is found in a memo entitled “Spiliway Adequacy and Hydrologic Hazard Analysis Workshop Results
Floodwater Ret.B 4 (aka Boxelder Dam B 4),DAMID 030414 SEH No.152112”dated September 21,2020.
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EXHIBIT A TO RESOLUTION 2023-105
the appropriate level of spillway capacity increase along with other dam
modifications that would convey a remote AEP storm and limit incremental risk
downstream.
Parties’Desire to Address Certain B Dams Issues
Q.The B Dams provide various benefits to the Parties.The Parties value regional
collaboration,especially in preparation for and response to disasters and emergencies.Following
a thorough examination of the issues,the Parties desire to address certain concerns associated with
the B Dams as set forth in this Agreement.3
R.Cob.Const.Art.XIV,§18(2)and C.R.S.§29-1-201 etseq.authorize the Parties to enter
into agreements,including agreements providing for cost-sharing as provided for in this
Agreement.
S.In consideration of the mutual promises contained herein,and other good and valuable
consideration,the receipt and adequacy of which is hereby acknowledged,the Parties agree as
follows.
AGREEMENT
1.Incorporation of Recitals.The foregoing recitals are hereby incorporated as if fully
restated in their entirety.
2.Defined Terms.The terms used in this Agreement shall be as defined in this Paragraph 2
and shall otherwise be given their ordinary meaning.
2.1.“B Dams”are the Boxelder Creek Watershed Dams (also known as the Boxelder
Creek Watershed Floodwater Retarding Structures),comprising three dams,being
B Dams 8-2,B-3,and B-4.4
2.2.“Cost Allocation Model”is a model developed by the Parties to allocate costs
related to this Agreement.The Cost Allocation Model is outlined in “SEH
Memorandum Cost Allocation Model Update (Task 8.0)”dated December 11,
2020.
2.3.“Dam Safety Office”is the Colorado Division of Water Resources (also known as
the Office of the State Engineer),Dam Safety Branch.
Final analysis and conclusions are found in the SEH Report titled ‘Project Development for Boxelder Watershed
Dam Rehabilitation Boxelder Watershed Dams B 2,B 3,8-4,8-5,and B-6 Larimer County,Colorado SHE PN
152112”dated May 10,2021.
“B Dams B 5 and 8-6 and other improvements that were part of the original NRCS project associated with the
B Dams are not the subject of this Agreement.
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2.4.“Dam Safety Regulations”are the Rules and Regulations for Dam Safety and
Construction,2 CCR 402-1.
2.5.“EAP”is an emergency action plan.
2.6.“Fiscal Manage?’is the Party designated under this Agreement (see Paragraph 7)
to act as the fiscal agent on behalf of all Parties for funds under this Agreement.
2.7.“Fort Collins”is the City of Fort Collins,a Colorado municipal corporation.
2.8.“Golder Report”is a report,dated August 21,2018,summarizing a study conducted
by Golder Associates,which was initiated by North Poudre and NRCS
2.9.“Larimer County”is Larimer County,a political subdivision of the State of
Colorado,acting through its Board of County Commissioners.
2.10.“Management Committee”is a committee comprising representatives of the
Parties.
2.11.“Minimum Balance”is the smallest amount of money that is required to be in the
O&M Fund.
2.12.“North Poudre”is the North Poudre Irrigation Company,a Colorado mutual ditch
and reservoir company.
2.13.“NRCS”is the Natural Resources Conservation Service (formerly Soil
Conservation Service,United States Department of Agriculture).
2.14.“O&M Fund”is the operation and maintenance fund created under this Agreement
to fund the operation and maintenance of B Dams B-2,B-3,and B-4 and as set forth
in this Agreement.
2.15.“Responsibility Percentages”are the percentages that each Party is responsible for
regarding contributions to the O&M Fund,which are calculated pursuant to the
Cost Allocation Model.
2.16.“Parties”are the Parties to this Agreement,being Fort Collins,Larimer County,
North Poudre,Timnath,and Wellington.
2.17.“SEH”is Short Elliot Hendrickson,a consulting firm.
2.18.“SEH Report”is a study and report initiated by the Management Committee and
conducted by SEH.
2.19.“Timnath”is the Town of Timnath,a Colorado municipal corporation.
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2.20.“U.S.Soil Conservation Service”is the Soil Conservation Service,United States
Department of Agriculture,which is currently known as NRCS.
2.21.“Wellington”is the Town of Wellington,a Colorado municipal corporation.
3.Effective Date and Term.This Agreement shall be effective as of the date that all Parties
have executed this Agreement,which is stated above on the initial page.This Agreement shall
continue in full force and effect as long as any of the B Dams exist,unless this Agreement is
terminated in writing by mutual Agreement of the Parties or by court order following the
procedures in Paragraph 15.
4.Overview of Agreement.This Agreement provides for the operation and maintenance of
B Dams and the funding therefor.As described herein,this includes5 oversight by the
Management Committee and cost sharing by the Parties.
5.North Poudre as Operator of the B Dams.
5.1.Operation,Maintenance,and Reimbursement.It is the intent of the Parties that
North Poudre continue to operate and maintain the B Dams.North Poudre shall
make routine,regular maintenance,and repairs to ensure the B Dams continue in
good operating condition and in compliance with all legal requirements,to reduce
the likelihood of failure to the lowest level,and shall prepare and submit any and
all required reporting to the Dam Safety Office.As set forth in Paragraph 8.1
below,North Poudre shall prepare annual cost estimates for operation and
maintenance of B Dams B-2,8-3,and B-4,for inclusion in the budget such that
North Poudre will be reimbursed for such costs pursuant to the terms and conditions
of this Agreement.North Poudre shall provide to the Management Committee
copies of any and all notices from the Dam Safety Office and other non privileged
documents North Poudre receives that are related to this Agreement and shall notify
the Management Committee of any known or anticipated legal or regulatory
changes that will impact the B Dams.
No Effect on Other Agreements.Nothing in this Agreement changes ownership
of the B Dams.See Recitals F,G,and H.Nothing in this Agreement amends
existing contracts and agreements,including regarding North Poudre’s operation of
the B Dams.See Recitals I,J,and K.
6.Management Committee.To facilitate the implementation of and manage this
Agreement and to provide technical and other recommendations related to this Agreement,the
Management Committee is created.
6.1.Representation.Each Party shall designate one person to represent and act on the
Party’s behalf on the Management Committee,and one alternate.Each Party shall
be entitled,at its sole discretion,to change its representative and alternate on the
In this Agreement,“include”signifies a list that is not necessarily exhaustive.E.g.,Lyman v.Towti of Bow Mar,
188 Cob.216.222,533 P.2d 1129,1133(1975).
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Management Committee,provided that the Party provides prompt notice of the
same to the other Parties.When possible,appointees should have applicable
technical knowledge and skills.Appointees shall be entitled to bring staff or
consultants with applicable technical knowledge and skills to meetings.
6.2.Meetings.The Management Committee shall meet at least annually.The
Management Committee may adopt rules to facilitate its conduct of business.
6.3.Tasks.The Management Committee shall provide advice and recommendations to
the Parties,including to their staff and governing boards,regarding matters under
this Agreement.The Management Committee shall also complete tasks delegated
to it under this Agreement.This includes:
•direction and recommendations to the Fiscal Manager;
•establishing the budgets;and
•reviewing and updating the Cost Allocation Model.
6.4.Consensus.The Management Committee shall operate by consensus,with
agreement from all Parties required for the Management Committee to act.To this
end,Management Committee members shall make a good faith effort to reach
consensus,propose alternative solutions,and otherwise work to resolve any issues
that prevent consensus In the event that no consensus can be reached,a Party may
request mediation pursuant to Paragraph 15.
7.Fiscal Manager.
7.1.Tasks.The Fiscal Manager shall be the fiscal agent for all Parties for funds under
this Agreement to,among other things:ensure compliance with Governmental
Accounting Standards Board rules and regulations;and manage the O&M Fund.
Upon request,the Fiscal Manager shall promptly provide the Management
Committee or any Party copies of its records related to its tasks under this
Agreement.The Fiscal Manager shall have a fiduciary responsibility to the Parties.
The Fiscal Manager shall provide the Management Committee with an annual
report on the O&M Fund and expenditures therefrom prior to setting the annual
budget.
7.2.Identification.Any Party may be the Fiscal Manager.Pursuant to a separate
agreement in writing,the Patties may identify a separate non-Party entity to act as
the Fiscal Manager.Larimer County shall be the initial Fiscal Manager,subject to
Paragraph 7.3.
7.3.Changes to Fiscal Manager.The Fiscal Manager may change overtime,pursuant
to agreement by the Parties in writing.The Fiscal Manager shall remain the Fiscal
Manager unless and until a new Fiscal Manager is identified and tasks and funds
have been transferred to the new Fiscal Manager.
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8.Annual Budget.The Management Committee shall establish and approve an annual
budget for tasks under this Agreement.
8.1.The annual budget shall consider and account for:
•North Poudre’s cost estimate for operation and maintenance of the B Dams;
•Larimer County’s cost estimate for operation and maintenance of the portion of
the Early Flood Warning System that relates to the B Dams;
•the amount currently in the O&M Fund;
•the amounts reasonably anticipated to come into the O&M Fund in the future;
and
•other relevant costs and matters.
8.2.Expenditures in the annual budget shall not exceed revenues.In the event that
reimbursable expenditures by North Poudre or the Fiscal Manager are expected to
exceed the amount set forth in the annual budget,they shall ask the Management
Committee to call a meeting and consider an amendment to the annual budget.
9.O&M Fund.The operation and maintenance of the B Dams and the implementation of
this Agreement will require funding to come from the Parties.The O&M Fund is thus created.
9.1.Form.The O&M Fund shall be a separate,designated,and restricted interest
bearing account will be held by the Fiscal Manager.
9.2.O&M Fund Tasks.The O&M Fund may be used for the operation and
maintenance of the B Dams and the implementation of this Agreement.These tasks
include:mowing;weed control;fences-related work;rodent/pest control;tree/shrub
removal;surveying;engineering inspections/certifications;any and all required
reporting to the Dam Safety Office;operation and maintenance of the Early Flood
Warning System components related to the B Dams;sediment removal;
rehabilitation /restoration of any flood control element of the B Dams,spillways,
flood inundation areas,impacted public infrastructure,or other appurtenant
facilities deemed necessary for the continued safe operation of the B Dams;and
tasks required under this Agreement,including reviewing and updating the Cost
Allocation Model.North Poudre,Larimer County,and the Fiscal Manager will
submit invoices and supporting documentation to the Fiscal Manager for actual
costs for work performed by staff and/or contractors related to the B Dams or this
Agreement,and the Fiscal Manager shall reimburse them for such actual,
reasonable costs up to the amount set forth in the annual budget.
9.3.Annual Payments in Initial Five Years.The Parties agree to fund the O&M Fund
via five successive annual payments in the amounts as follows:
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Party Annual Amount 5-Year Total
Fort Collins $50,103 $250,515
Larimer County $69,927 $349,635
North Poudre $12,102 $60,510
Tinmath $28,770 $143,850
Wellington $81,131 $405,655
Sum Total $242,033 $1,210,165
During the first five years while the O&M Fund is being established and funded,
the Parties further agree to pay the minimum annual estimated operations and
maintenance costs of $37,000 per year as follows:
Party Annual Amount
Fort Collins $7,659
Larimer County $10,690
North Poudre $1,850
Timnath $4,398
Wellington $12,403
Sum Total $37,000
9.4.Minimum Balance.The intent is that the O&M Fund creates interest earned that
will fund the annual operation and maintenance of the B Dams.It is the Parties’
intent that the Minimum Balance is sufficient to ensure the generation of adequate
interest revenue to perpetually fund operation and maintenance of the B Dams.If
the O&M Fund falls below the Minimum Balance,the Parties shall replenish the
O&F Fund to meet the Minimum Balance as soon as practicable.
9.4.1.Initial Minimum Balance.The initial Minimum Balance of the O&M Fund
shall be $1,200,000.
9.4.2.Updates to the Minimum Balance.The Parties understand and agree that
the actual and estimated annual operation and maintenance costs will
change over time.The Minimum Balance will thus also need to increase
accordingly.The Management Committee shall updated the Minimum
Balance when the Cost Allocation Model is reviewed and updated as
described in Paragraph 10.2.The Management Committee may also
recommend that the Minimum Balance otherwise be updated,which would
require the amendment of this Agreement in writing.
10.Cost Allocation Model.
10.1.Initial Responsibility Percentages.Based on the Cost Allocation Model,
responsibility for contributions to the O&M Fund shall be distributed among the
Parties as follows:
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Party Responsibility Percentages
Fort Collins —20.7%
Larimer County 28.9%
North Poudre 5%
Timnath 11.9%
Wellington 33.5%
10.2.Updates to Responsibility Percentages and Minimum Balance of the O&M
Fund.The Management Committee shall review and update the Cost Allocation
Model a minimum of once every five years from the date of this Agreement.The
Management Committee may consider retaining SEH or another consultant to
perform the update under direction from the Management Committee.The Cost
Allocation Model shall be reviewed and updated to include the most recent data
describing assessed values,residential dwellings,population,and growth impact
within the boundaries of each Party,and other relevant factors.Consistent with
Paragraph 6.4,all updates to the Cost Allocation Model must be by consensus.
Once the Cost Allocation Model has been updated pursuant to this Agreement,
updated Responsibility Percentages and the Minimum Balance of the O&M Fund
shall be calculated.Notice of the updated Responsibility Percentages and the
Minimum Balance of the O&M Fund shall be provided to the Parties pursuant to
Paragraph 22 and shall supersede previous Responsibility Percentages and
Minimum Balance and shall be considered to be part of this Agreement.
11.Emergency Flood Warning System.The Parties will install an Early Flood Warning
System described herein.
11.1.Installation.Larimer County shall procure,install,operate,and maintain in good
operating condition three rain and stage gaging stations and one rain-only gage
station around the B Dams in locations approved by North Poudre and incorporate
these stations into Larimer County’s existing Early Flood Warning System.
11.2.Initial Costs.The cost for initial procurement and installation of the Early Flood
Warning System shall be funded by the Parties as follows.These amounts shall be
due and payable within 28 days of the execution of this Agreement.
Party Amount
Fort Collins $20,000
Larimer County $20,000
North Poudre $20,000
Timnath $20,000
Wellington $20,000
Sum $100,000
11.3.Operation and Maintenance Costs.The cost for operation and maintenance of
the portions of the Early Flood Warning System related to the B Dams shall be
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funded by the Parties via the O&M Fund and pursuant to the budgeting procedures
described herein.
12.Emergency Action Plan (EAP).The Parties will work together to develop and implement
the EAP consistent with the risk assessment performed by the Dam Safety Office.Costs for the
development and implementation of the EAP shall come from the O&M Fund and pursuant to the
budgeting procedures described herein.
13.Dam Safety Office Regulations.The Parties agree to work in good faith to comply with
Dam Safety Regulations as set forth in this Agreement.
14.Data Sharing.The Parties agree that all data received from the Early Flood Warning
System will be shared with the Parties,the National Weather Service,the Larimer County
Emergency Management Office,and other departments of the Parties related to emergency
services.The Parties may elect to have appropriate emergency response personnel receive the
automated alerts generated by the system.It is each Party’s own responsibility to keep the alert
contact list up to date.
14.1.Disclaimer.Larimer County makes no representations or warranties as to the
accuracy,timeliness,or completeness of the data provided by the Early Flood
Warning System.LARIMER COUNTY MAKES NO WARRANTY OF
MERCHANTABILITY OR WARRANTY FOR FITNESS OF USE FOR A
PARTICULAR PURPOSE,EXPRESSED OR IMPLIED,WITH RESPECT TO
THE DATA PROVIDED BY THE EARLY FLOOD WARNING SYSTEM.Any
user of the data accepts the same AS IS,WITH FAULTS,and assumes all the
responsibility for the use thereof,and further covenants and agrees to hold Larimer
County harmless from and against all damage,loss,or liability arising from any use
of this data,in consideration of Larimer County having made this information
available.
15.Remedies.
15.1.If a Party (“Complaining Party”)believes that another party (“Responding Party”)
has failed to comply with the provisions of this Agreement,the Complaining Party
will provide written notification of the same to the Responding Party,which notice
shall clearly identify the provisions of this Agreement at issue,and the actions or
failure to act that the Complaining Party is alleging.The Responding Party shall
have thirty-five days to provide a response,or to address the complaint.If the
Complaining Party believes that the Responding Party has failed to achieve
compliance after receiving the response,the Complaining Party may require
mediation of the issue(s)under Paragraph 15.2.
15.2.If mediation is sought following the procedures of Paragraph 15.1,the Parties shall
jointly select a mediator within 35 days following the Complaining Party’s written
notice to require mediation.The selection of the mediator shall be confirmed in
writing.If the Parties cannot jointly select a mediator,each Party shall select a
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mediator within 42 days following the Complaining Party’s written notice to
require mediation and the two selected mediators shall then jointly select a third
person to mediate the issue(s)within 56 days following the Complaining Party’s
written notice to require mediation,who shall be impartial as to the Parties and the
issue(s)and have mediation experience.The Parties agree to participate in good
faith in such mediation.
15.3.Following the good faith completion of mediation under Paragraph 15.2 or if the
two selected mediators are unable to jointly select a third person to mediate the
issue(s),the Complaining Party may seek all such remedies available under
Colorado law,excluding any exemplary and/or consequential damages.
15.4.This Agreement may by terminated by mutual consent of the Parties,in writing,
including if the Agreement no longer serves the purposes of which it was executed.
16.Annual Appropriations.Any financial obligations of the Parties arising under this
Agreement are contingent upon funds for that purpose being appropriated,budgeted and otherwise
made available by the respective governing bodies of the Parties in their sole discretion.No term
or condition of this Agreement is intended nor shall be interpreted to create a multi-fiscal year
obligation or debt of the Parties.
17.Governmental Immunity.No term or condition of this Agreement is intended nor shall
be construed as a waiver,either express or implied,of the monetary limits,notice requirements,
immunities,rights,benefits,defenses,limitations and protections available to the Parties under
any applicable law,including but not limited to the Colorado Governmental Immunity Act,
C.R.S.**24-10-101,et.seq.,as currently written or hereafter amended or implemented.
18.Relationship of the Parties.The Parties enter this Agreement as separate and independent
entities and shall maintain such status at all times.
19.No Third-Party Beneficiaries.This Agreement is intended to describe rights and
responsibilities only as between the Parties.It is not intended to and shall not be deemed to confer
rights to any persons or entities not named as parties herein.
20.Assignment.The benefits and burdens under this Agreement may not be assigned by any
Party without the unanimous written consent by all Parties.
21.Amendment.No amendment or other modification of this Agreement shall be valid unless
pursuant to a written instrument signed by all Parties.
22.Notices.All notices provided for under this Agreement shall be effective when hand
delivered,sent by electronic mail-read receipt received,sent by registered or certified mail return
receipt requested,or sent by overnight commercial courier as follows:
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EXHIBIT A TO RESOLUTION 2023 105
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
Fort Collins Utilities
Executive Director
700 Wood Street;P0 Box 580
Fort Collins,Colorado 80522
To County:County Manager
Larimer County Courthouse Offices
200 West Oak St,2~Floor;P0 Box 1190
Fort Collins,CO 80522-1190
With copy to:Larimer County Attorney’s Office
P0 Box 1606
Fort Collins,CO 80522
With copy to:Larimer County Engineering Department
Attn:County Engineer
200 West Oak St.,Suite 3000;P0 Box 1190
Fort Collins,CO 80522 1190
To North Poudre:General Manager
North Poudre Irrigation
3729 Cleveland Ave
Wellington,CO 80549
To Timnath:Timnath Town Manager
4750 Signal Tree
Timnath,CO 80547
With copy to:Town Attorney
4750 Signal Tree
Timnath,CO 80547
With copy to:1)onald Taranto,Town Engineer
TST,Inc.Consulting Engineers
748 Whalers Way,Suite 200
Fort Collins,CO 80525
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EXHIBIT A TO RESOLUTION 2023-105
To Wellington:Wellington Public Works
Attn:Robert Gowing
P.O.Box 127
Wellington,CO 80549
With copy to:Patti Garcia,Town Administrator
P.O.Box 127
Wellington,CO 80549
With copy to:March Olive and Sapienza,LLC
Attn:Dan Sapienza
1312 S College Ave
Fort Collins,CO 80524
Any Party hereto may at any time designate a different person or address for purposes of receiving
notice by so informing the other parties in writing.Notice shall be deemed effective upon actual
receipt thereof,or three (3)days after being deposited in the United States mail or accepted by an
overnight delivery service,whichever first occurs.
23.Counterparts.This Agreement may be signed in counterparts.
24.Governing Law.This Agreement shall be governed by,construed under,and enforced in
accordance with the laws of the State of Colorado.In addition,the Parties acknowledge that there
are legal constraints imposed upon the Parties by the constitutions,statutes,and rules and
regulations of the State of Colorado and of the United States,and that,subject to such constraints,
the Parties intend to carry out the terms and conditions of this Agreement.Notwithstanding any
other provisions of this Agreement to the contrary,in no event shall the Parties hereto exercise any
power or take any action which shall be prohibited by applicable law.Whenever possible,each
provision of this Agreement shall be interpreted in such a manner so as to be effective and valid
under applicable law.Further,no term herein is intended nor shall be interpreted as a waiver of
any rights,benefits,or other provisions of the Colorado Governmental Immunity Act,as now
enacted and as may be amended,or other state or federal law that provides immunity or restrictions
or limits of liability to local governments.
25.Force Maieure.No Party hereto shall be considered in default in the performance of an
obligation hereunder to the extent that performance of such obligation is delayed,hindered,or
prevented by force majeure.Force majeure shall be any cause beyond the control of the defaulting
Party which could not reasonably have been foreseen and guarded against.Force majeure includes,
but is not limited to,acts of god,fires,riots,pandemics,incendiarism,interference by civil or
military authorities,compliance with regulations or orders of military authorities,and acts of war
(declared or undeclared),provided such cause could not have been reasonably foreseen and
guarded against by the defaulting Party.Force majeure shall not include increases in labor,
commodity,utility,material,supply,fuel,or energy costs,or compliance with regulations or orders
of civil authorities.
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EXHIBIT A TO RESOLUTION 2023-105
26.Severability.If any provision of this Agreement is held to be invalid or unenforceable to
any extent,the Parties shall meet,confer,and agree on appropriate modifications to this Agreement
to ensure that the original intent,obligations,goals,and purposes of this Agreement are satisfied.
27.Authority.Each of the Parties represents to the other Parties that such Party has full power
and authority to execute,deliver,and perform this Agreement,that such Party has taken the
necessary steps that are lawfully required to execute,deliver,and perform this Agreement,and
that the individual(s)executing this Agreement on behalf of such Party are fully empowered and
authorized to do so.
28.Venue.Venue for all purposes shall be deemed proper only in the District Court of Larimer
County,Colorado.
29.Entire Agreement of the Parties.This Agreement contains the entire agreement of the
Parties as to the B Dams and shall be binding on them and their successors.
30.All Other Agreements Unaffected.All other agreements to which the Parties have
previously agreed are unaffected by this Agreement.By way of example and not limitation,
nothing in this Agreement shall affect North Poudre’s agreements with the U.S.Soil Conservation
Service regarding the B Dams that are referenced above.
IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed
the day and year written below,and subject to the Effective Date as defined in Paragraph 3.
SIGNATURE PAGE FOLLOWS
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EXHIBIT A TO RESOLUTION 2023-105
CITY OF FORT COLLINS,COLORADO,a municipal corporation
By:Date:
Kelly DiMartino,City Manager
ATFEST:
By:
City Clerk
APPROVED AS TO LEGAL FORM:
City Attorney’s Office
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EXHIBIT A TO RESOLUTION 2023-105
LARIMER COUNTY,COLORADO,a political subdivision of the State of Colorado
BOARD OF COUNTY COMMISSIONERS
LARIMER COUNTY,COLORADO
By:_________________________________________Date:
Chair
ATtEST:
By:
Deputy Clerk
APPROVED AS TO LEGAL FORM:
By:
County Attorney’s Office
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EXHIBIT A TO RESOLUTION 2023 105
NORTH POUDRE IRRIGATION COMPANY,a Colorado mutual ditch and reservoir
company
Date:
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EXHIBIT A TO RESOLUTION 2023-105
TOWN OF TIMNATH,COLORADO,a municipal corporation
By:_______________________________________Date:
Mark Soukup,Mayor
ATfEST:
City Clerk
APPROVED AS TO LEGAL FORM:
Town Attorney
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EXHIBIT A TO RESOLUTION 2023-105
TOWN OF WELLINGTON,COLORADO,a municipal corporation
By:__________________________________________Date:
Calar Chausee,Mayor
AflEST:
By:
Ethan Muhs,Town Clerk
APPROVED AS TO LEGAL FORM:
By:
Town Attorney
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