HomeMy WebLinkAbout2024-003-01/16/2024-AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH VARIOUS ENTITIES REGARDING THE UPPER PORESOLUTION 2024-003
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO ENTER INTO AN
AGREEMENT WITH VARIOUS ENTITIES REGARDING
THE UPPER POUDRE WATERSHED SOURCE WATER
PROTECTION PLAN (PHASE 1 —PLAN DEVELOPMENT)
A.The Cache Ia Poudre Watershed (“Poudre Watershed”)headwaters begin
within the Arapaho-Roosevelt National Forest and drains through Fort Collins and urban
areas of the Front Range until its confluence with the South Platte River,east of Greeley.
B.The Poudre Watershed is a valuable asset to local municipalities,
agriculture,and recreational stakeholders due to,among other reasons,the large
geographic area of the watershed,prominence through urban areas,and high-quality
drinking water supply.
C.The upper portions of the Poudre Watershed are those portions above the
canyon mouth (“Upper Poudre Watershed”)and Horsetooth Reservoir,which are relied
upon for water supply by various entities,and have historically been the principal sources
of raw water for,among others,the City’s Fort Collins Utilities and the Soldier Canyon
Water Treatment Authority,which includes water districts serving portions of Fort Collins.
D.Water quality in the Upper Poudre Watershed faces various challenges,
including risks from wildfires and climate change,and protecting water quality within the
Poudre Watershed is a high priority for the City and other entities relying on Poudre
Watershed to,among other things,ensure all current and future water demands are met,
and to continue providing communities with reliable,safe,and high-quality drinking water.
E.The State of Colorado has a Source Water Assessment and Protection
Program,which is a voluntary,non-regulatory program intended to assist water utilities
with conducting assessments and developing targeted Source Water Protection Plans for
water quality.
F.The City,the City of Greeley,the City of Thornton,the Northern Colorado
Water Conservancy District,and the Soldier Canyon Water Treatment Authority
(collectively,“Parties”)are pursuing a Source Water Protection Plan for the Upper Poudre
Watershed (“Plan”),which comprises two general phases:Phase 1 —Plan Development;
and Phase 2—Plan Implementation.
G.The City and the other Parties have negotiated an agreement regarding
Phase 1 of the Plan (the “Agreement”),the form of which is attached hereto as Exhibit
“A,”and incorporated herein by reference.
H.The City Manager and City staff have recommended approval of the
Agreement by the City Council.
I.City Council finds that entering into the Agreement regarding Phase 1 of the
Plan is in the best interests of the City.
In light of the foregoing recitals,which the Council hereby makes and adopts as
determinations and findings,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS 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
Resolution.
Effective Date:January 16,2024
Approving Attorney:Eric Potyondy
Passed and adopted on January 16,2024.
I
F.ATTEST:
City
EXHIBIT A 0 RESOLUTION 2024-003
AGREEMENT REGARDING THE
UPPER POUDRE WATERSHED SOURCE WATER PROTECTION PLAN
(Phase I —Plan Development)
This Agreement (“Agreement”)is entered into by and between the following Parties,which
are listed in no particular order:
•Northern Colorado Water Conservancy District,a quasi-municipal entity and political
subdivision of the State of Colorado (“Northern Water”);
•City of Fort Collins,a municipal corporation (“Fort Collins”);
•City of Greeley,a municipal corporation (“Greeley”);
•City of Thornton,a municipal corporation (“Thornton”);and
•Soldier Canyon Water Treatment Authority,a political subdivision of the state of Colorado
(“Soldier Canyon”).
RECITALS
A.The Cache Ia Poudre Watershed (“Poudre Watershed”)headwaters begin within the
Arapaho-Roosevelt National Forest and drains through Fort Collins and urban areas of the Front
Range until its confluence with the South Platte River,east of Greeley.The Poudre Watershed is
a valuable asset to local municipalities,agriculture,and recreational stakeholders due to,among
other reasons,the large geographic area of the watershed,prominence through urban areas,and
high-quality drinking water supply.
B.The upper portions of the Poudre Watershed are those portions above the canyon mouth
(“Upper Poudre Watershed”).The Upper Poudre Watershed are and have historically been a
principal source of raw water for Fort Collins,Greeley,and Soldier Canyon.Northern Water and
Thornton also rely on the Upper Poudre Watershed to meet future demand.
C.Water quality in the Upper Poudre Watershed faces various challenges,including.’risks
from wildfires and climate change.Protecting water quality within the Poudre Watershed is a high
priority for the Parties to,among other things,ensure all current and future water demands are met,
and to continue providing communities with reliable,safe,and high-quality drinking water.
D.The State of Colorado has a Source Water Assessment and Protection Program,which is a
voluntary,non-regulatory program intended to assist water utilities with conducting assessments
and developing targeted Source Water Protection Plans for water quality.Related to the State’s
program,the Parties are pursuing a Source Water Protection Plan for the Upper Poudre Watershed
(“Plan”).
E.The Parties’efforts comprise two general phases:
Phase I Plan Development
Phase 2—Plan Implementation
In this Agreement,“include”signifies a list that is not necessarily exhaustive.E.g.,Lyman v Town of Bow Mar,
188 Cob.216,222,533 P.2d 1129,1133(1975).
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EXHIBIT A TO RESOLUTION 2024-003
This Agreement concerns Phase 1.The Parties anticipate that a separate agreement may be
desirable for Phase 2.
F.The purpose of this Agreement is to coordinate the Parties’joint efforts related to
developing the Plan,including funding a consultant to assist with the development of the Plan.
G.As governmental entities,the Parties are authorized to enter into the following
intergovernmental agreement pursuant to C.R.S.§29-1-203.
AGREEMENT
I.Incorporation of Recitals.The foregoing recitals are hereby incorporated as if fully
restated in their entirety.
2.Meetings and Schedule.
2.1.Meetings.The Parties will meet at least quarterly at an agreed upon time and place.
Each Party will designate at least one representative who will attend the meetings,either
in person or by teleconference when available.Should the representative(s)be changed,a
Party shall provide fourteen (14)calendar days written notice of the change to the other
Parties.Party representatives will,when possible,be staff members and not members of
the governing body of a Party.Persons associated with the Parties other than the
representative may attend the meetings upon invitation by the appropriate Party.
2.2.Schedule.The Parties currently intend to follow the schedule set forth in the Scope
of Work,attached as Exhibit A.The Parties may modify the schedule of tasks as
appropriate to effectuate the purposes of this Agreement.
2.3.Consensus Decision-making.The Parties shall operate by consensus in making
decisions for the purposes of this Agreement.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.
3.Funding.The Parties intend to budget $150,000 for the retention of a consultant to assist
with the development of the Plan.
3.1.Party Contributions and CDPHE Grants.On or before April l~,2024,each of
the five Parties will contribute $20,000 to Northern Water for the purposes of this
Agreement.The Parties will seek grants from the State of Colorado Department of Public
Health and Environment (“CDPHE”)for funds to comprise a portion of these contributions.
The CDPHE grants will be attributed equally to the five Parties.The CDPHE grants are
currently anticipated to total $50,000 (i.e.,half of the sum total of$1 00,000 of contributions
from the Parties),with a pro rata $10,000 attributed to each of the Parties.The Parties may,
in writing,extend the deadline included in this paragraph.
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EXHIBIT A TO RESOLUTION 2024-003
3.2.CWCB Grant.The Parties will seek a grant from the Colorado Water
Conservation Board (“CWCB”)for the remaining $50,000 of the budgeted amount,which
would be held by Northern Water.If such a grant is not acquired on or before April V,
2024,each of the Parties will contribute an additional $6,000,unless the Parties identi&
another source of funding or agree that the Plan can be completed without the funds
contemplated in this paragraph.The Parties may,in writing,extend the deadline included
in this subparagraph.
4.Northern Water’s Role.
4.1.Funds.Northern Water will hold the budgeted funds described in Paragraph 3 for
purposes of this Agreement.If there are any unused funds,they will be returned to the
Parties in equal amounts,or may be retained by Northern Water for Phase 2 pursuant to an
amendment to this Agreement or subsequent agreement regarding such funds.
4.2.Consultant.Northern Water will retain the consultant to assist with the
development of the Plan.The Parties will jointly select which consultant will be retained
and manage the same,pursuant to Paragraph 2.3.The Parties acknowledge Northern Water
will contract with and have sole responsibility for directing the selected consultant,
consistent with the determination of the Parties pursuant to Paragraph 2.3 and the
objectives of this Agreement.
4.3.Sharing Consultant Work Product.Northern Water will provide to the other
Parties copies of all reports,data,drawings,computer programs,or other reproducible,
tangible things developed by the consultant in connection with this Agreement
(“Consultant Work Product”).Each Party will be entitled to review and provide feedback
on the Consultant Work Product,which Northern Water will communicate to the
consultant.Northern Water will obtain the consultant’s agreement for each Party to use
Consultant Work Product for purposes connected to this Agreement.
5.Term,Withdrawal,and Termination.
5.1.Term and Termination.This Agreement will be in effect on the last date it is
signed by the Parties until:
(1)September 30,2025;
(2)Northern Water withdraws;
(3)all but one of the parties withdraws;
(4)the Parties otherwise agree in writing to terminate this Agreement;or
(5)Phase I is completed.
5.2.Withdrawal.Any Party may withdraw from this Agreement by providing written
notice to the other Parties.Any Party may also withdraw from this Agreement for failure
to appropriate funds pursuant to Paragraph 5.Withdrawal from this Agreement shall not:
entitle the withdrawing Party to reimbursement for previously contributed funds;or relieve
the withdrawing Party from any obligations resulting from the Party’s previous
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EXHIBIT A TO RESOLUTION 2024-003
participation,including responsibilities for costs,and shall not waive the withdrawing
Party’s right to the receipt of documents resulting from the Party’s previous participation.
6.Claimed Confidential Information.
6.1.CORA.The Parties acknowledge that the majority of documents and
communications created under this Agreement will be subject to the Colorado Open
Records Act,C.R.S.§~24-72-1O1 e seq.(“CORA”).
6.2.Confidential Information Procedures.If a Party (“Providing Party”)desires to
provide documents or information to the other Parties (“Receiving Parties”)that the
Providing Party claims to be confidential (“Confidential Information”),the Providing Party
may invoke the terms and conditions of this Paragraph 6.2.
6.2.1.If the Providing Party intends to claim that certain information is
confidential under this Paragraph 6.2 and desires to have the Receiving Parties take
certain precautions under this Agreement with such claimed Confidential
Information,then within three calendar days of when the Providing Party provides
the claimed Confidential Information to the Receiving Parties,the Providing Party
shall provide written notice to the Receiving Parties containing the following:
(i)an identification of each piece of information that is claimed to be
Confidential Information;
(ii)for each piece of such information,an identification of the
documents,files,or other forms of communication provided to the
Receiving Parties in which the claimed Confidential Information is
located;and
(iii)for each piece of such information,a brief statement identifying the
basis for which the Providing Party may claim the information to be
confidential.
6.2.2.With respect to the claimed Confidential Information identified pursuant to
Paragraph 6.2.1,the Receiving Parties hereby agree:
(i)to hold the claimed Confidential Information in confidence and to
take all reasonable precautions to protect such Confidential
Information from inadvertent or accidental disclosure;and
(ii)to not disclose any such claimed Confidential Information to any
third person,except pursuant to Paragraph 6.2.4.
In the normal course of business,the Receiving Parties may also dispose of any
documents containing claimed Confidential Information.
6.2.3.The obligations of the Receiving Parties with respect to claimed
Confidential Information under this Paragraph 6.2 shall not apply to:
(i)Claimed Confidential Information beginning six months after the
termination of this Agreement pursuant to Paragraph 5.1;
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EXHIBIT A TO RESOLUTION 2024-003
(ii)Claimed Confidential Information that the Receiving Party can
document:
(A)is or has become (through no improper action or inaction by
the Receiving Party or any affiliate,agent,consultant or
employee)generally available to the public;
(B)was in its possession prior to receipt from the Providing
Party under Paragraph 6.2.1,except to the extent that such
information was unlawfully appropriated by the Receiving
Party;
(C)was independently developed by the Receiving Party
without use of any claimed Confidential Information of the
Providing Party under Paragraph 6.2.1;or
(D)was disclosed pursuant to the requirements of law,subject to
Paragraph 6.2.4.
6.2.4.Nothing herein shall affect the obligations of a Receiving Party to either
make disclosures or preserve the confidentiality of claimed Confidential
Information to the extent required by law or court order,including,but not limited
to,requirements under the Colorado Open Records Act,CRS §24-72-201 et seq.,
and other Colorado and federal statutes,court rules,and administrative rules and
regulations.If a Receiving Party receives a request under law for the Providing
Party’s claimed Confidential Information,or if a Receiving Party would otherwise
be required to disclose the Providing Party’s claimed Confidential Information
pursuant to law,the Receiving Party shall notify the Providing Party as soon as
practicable of the request or pending disclosure,and in such event,upon the request
of the Receiving Party,the Providing Party may take such timely action as may be
required to obtain a declaratory judgment as to the confidential status of the
Confidential Information,and,if the Providing Party elects not to do so,then the
Receiving Party’s obligation to preserve that Confidential Information shall have
been waived hereunder,except as otherwise provided by law.
6.2.5.The Providing Party shall have the right to require the return and destruction
of claimed Confidential Information in the possession of a Receiving Party as set
forth in this paragraph.Such right shall exist from the effective date of this
Agreement through six months after the date of termination of this Agreement
pursuant to Paragraph 5.1 If claimed Confidential Information has been copied or
transcribed into another document,such documents will be destroyed,erased,or
modified to remove the claimed Confidential Information.
7.Fiscal Contingency.Notwithstanding any other provisions of this Agreement to the
contrary,the obligations of the Parties in fiscal years after the initial 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 Party to appropriate such funds shall be grounds for termination
of this Agreement as to such Party upon written notice pursuant to Paragraph 11.
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EXHIBIT A TO RESOLUTION 2024-003
8.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 that the Parties are benefitted only to the extent provided under the express terms
and conditions of this Agreement.
9.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.
10.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 are governments or any other governmental provisions of State law.Specifically,by
entering into this Agreement,no 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,el seq.,or any successor or similar statutes of the State of Colorado.
II.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 email 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
epotyondy~fcgov.com
and:Fort Collins Utilities
Attn:Sr.Director of Water Planning and Sciences
4316 LaPorte Ave.
Fort Collins,Colorado 80521
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EXHIBIT A TO RESOLUTION 2024-003
lb Northern Water:Northern Colorado Water Conservancy District
Attn:Kimberly Mihelich
220 Water Avenue
Berthoud,CO 80513
With copy to:Northern Water Counsel
Trout Raley
1120 Lincoln Street,Suite 1600
Denver,CO 80203
To Greeley:City of Greeley
Attn:Director of Water &Sewer
1001 I 1th Aye,2nd Floor,
Greeley,Colorado 80631
With a copy to:
City Attorney
1100 10th Street,Suite 401
Greeley,Colorado 80631
Jerrae.Swanson greeleygov.com
To Thornton:City Manager
9500 Civic Center Dr
Thornton CO,80029
With a copy to:City of Thornton Senior Assistant Attorney Water
9500 Civic Center Dr
Thornton CO,80029
Kara.Godbehere~ThorntonCO.gov
To Soldier Canyon:Soldier Canyon Water Treatment Authority
Attn:Authority Manager
4424 LaPorte Ave
Fort Collins,CO 80521
Telephone:(970)482-3143
mkempton soldiercanyon.com
12.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.
13.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.
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EXHIBIT A TO RESOLUTION 2024-003
14.Assignment.No Party may assign any rights or delegate any duties under this Agreement
without the written consent of all other Parties.
15.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.
IRemainder of Page Left Blank Intentionallyj
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EXHIBIT A TO RESOLUTION 2024-003
NORTHERN COLORADO WATER CONSERVANCY DISTRICT,a quasi-municipal
entity and political subdivision of the State of Colorado
By:_________________________________________Date:___________________________
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EXHIBIT A TO RESOLUTION 2024-003
CITY OF FORT COLLINS,a municipal corporation
By:_________________________________________Date:______
Kelly DiMartino,City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney’s Office
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EXHIBIT A TO RESOLUTION 2024-003
CITY OF GREELEY,a municipal corporation
APPROVED AS TO SUBSTANCE:
By:Date:
City Manager
AVAILABILITY OF FUNDS:
By:Date:
Director of Finance
APPROVED AS TO LEGAL FORM
By:___________________________________Date:
City Attorney’s Office
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EXHIBIT A TO RESOLUTION 2024-003
CITY OF THORNTON,a Colorado home-rule municipal corporation
By:Date:
Kevin Woods,City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
Temi Yellico,City Attorney
By:
Senior Assistant City Attorney -Water
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EXHIBIT A TO RESOLUTION 2024-003
SOLDIER CANYON WATER TREATMENT AUTHORITY,a political subdivision of the
state of Colorado
By:_________________________________________Date:
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