HomeMy WebLinkAbout110 - 11/06/2012 - APPROVING A FOURTH AMENDMENT TO THE FORT COLLINS-TIMNATH INTERGOVERNMENTAL AGREEMENT REGARDING COOPE ORDINANCE NO. 110, 2012
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING A FOURTH AMENDMENT TO THE
FORT COLLINS-TIMNATH INTERGOVERNMENTAL AGREEMENT
REGARDING COOPERATION ON ANNEXATION, GROWTH MANAGEMENT,
AND RELATED ISSUES, ELIMINATING ORIGINAL TERMS RELATED TO
THE BOXELDER OVERFLOW PROJECT AND ESTABLISHING
THE TERMS OF COST SHARING FOR DESIGN ENGINEERING OF
SUBSTITUTED IMPROVEMENTS IN THE BOXELDER BASIN
WHEREAS, on February 17, 2009, Timnath and Fort Collins entered into an
intergovernmental agreement relating to annexation,growth management and related issues,which
agreement resolved certain differences that had arisen between the parties regarding a variety of
planning and growth management issues (the "Intergovernmental Agreement"); and
WHEREAS,the parties have previously entered into three amendments modifying dates for
completion of certain actions related to their growth management areas,and other matters addressed
in the Intergovernmental Agreement; and
WHEREAS, in addition to addressing the above-described matters, the Intergovernmental
Agreement also provided for funding assistance from Fort Collins in the form of payments to an
escrow account to be disbursed in reimbursement to Timnath for a portion of Timnath's costs in
completing a project Timnath had planned to undertake in order to construct specified channels and
other improvements to convey and redirect certain Boxelder Creek basin stormwater flows,referred
to as the Boxelder Overflow Project; and
WHEREAS,the parties have determined that development of the Boxelder Overflow Project,
as originally contemplated by Timnath and as described in the Intergovernmental Agreement, is
neither feasible nor desirable, and have identified a mutually beneficial alternative approach for
mitigating the risk of flooding in the Boxelder Creek Basin as it impacts Timnath and Fort Collins,
referred to as the Boxelder Creek Flood Mitigation Projects; and
WHEREAS, the Boxelder Creek Flood Mitigation Projects would result in significantly
reduced flood elevations along Cooper Slough in the City and in the vicinity of and below the
Interstate 25 - Prospect Road interchange; and
WHEREAS, City Stormwater staff recommends that the City pursue the cooperative
development of the Boxelder Creek Flood Mitigation Projects, in light of the benefits of that project
for City Stormwater Utility and City Stormwater ratepayers; and
WHEREAS,in orderto move forward cooperativelyto further investigate,conceptually plan
and preliminarily design the Boxelder Creek Flood Mitigation Projects, the parties desire to apply
toward those Projects a portion of the funds previously paid by Fort Collins into an escrow account
in accordance with Article 7 of the Intergovernmental Agreement; and
WHEREAS, accordingly, Timnath and Fort Collins staffs have negotiated modifications to
the Intergovernmental Agreement in order to clarify and document the intentions and mutual rights
and responsibilities of Timnath and Fort Collins with respect to the Boxelder Overflow Project and
Boxelder Creek Flood Mitigation Projects; and
WHEREAS, the City Council has considered the Fourth Amendment to Intergovernmental
Agreement, attached hereto as Exhibit A, and incorporated herein by this reference (the "Fourth
Amendment") and desires to authorize the execution of the Fourth Amendment so as to allow the
shared funding of final design engineering for the Boxelder Creek Flood Mitigation Projects.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby finds and determines that the cooperative
funding of the Boxelder Creek Flood Mitigation Projects will benefit and advance the interests of
the City Stormwater Utility and City Stormwater ratepayers.
Section 2. That the Mayor is hereby authorized to enter into a Fourth Amendment to the
Intergovernmental Agreement Regarding Cooperation on Annexation, Growth Management and
Related Issues in substantially the form attached hereto as 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 purpose of this
Ordinance.
Introduced, considered favorably on first reading, and ordered published this 16th day of
October, A.D. 2012, and to be presented for final passage on the 6th day of November, A.D. 2012.
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Passed and adopted on final reading on the 6th day of November, A.D. 2012.
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FOURTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
(Regarding Cooperation on Annexation, Growth Management and Related Issues)
THIS FOURTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
("Amendment") is made and entered into this _ day of November, 2012, by and between
THE TOWN OF TIMNATH, COLORADO, a Colorado home rule town (hereinafter referred to
as "Timnath"), and THE CITY OF FORT COLLINS, COLORADO, a Colorado home rule
municipal corporation (hereinafter referred to as "Fort Collins").
RECITALS
WHEREAS, on February 17, 2009, Timnath and Fort Collins entered into an
intergovernmental agreement relating to annexation, growth management and related issues,
which agreement resolved certain differences that had arisen between the parties regarding a
variety of planning and growth management issues (the "Intergovernmental Agreement"); and
WHEREAS, on March 3, 2010, the parties executed a First Amendment to
Intergovernmental Agreement which extended the periods of time within which Fort Collins was
to amend the Fort Collins Growth Management Area ("FCGMA") and Timnath was to provide
written notice to Fort Collins of its intent to exercise its option to purchase the Vangbo Property,
as those terms are defined in the Intergovernmental Agreement; and
WHEREAS, on February 2, 2011, the parties executed a Second Amendment to
Intergovernmental Agreement, which extended the period of time within which Fort Collins was
to amend the FCGMA; and
WHEREAS, on February 21, 2012, the parties executed a Third Amendment to
Intergovernmental Agreement, which extended until February 12, 2013, the period of time
within which both parties will amend the boundaries of their growth management areas; and
WHEREAS, the parties have determined that development of the Boxelder Overflow
Project originally contemplated by Timnath as described in the Intergovernmental Agreement is
not feasible nor desirable, and have further identified a mutually beneficial alternative approach
to address flood impacts in the Boxelder Creek Basin as it impacts Timnath and Fort Collins,
referred to as the Boxelder Creek Flood Mitigation Projects; and
WHEREAS, in order to move forward cooperatively to further investigate, conceptually
plan and preliminarily design the Boxelder Creek Flood Mitigation Projects, the parties desire to
apply toward those Projects a portion of the funds previously paid into an escrow account by Fort
Collins in accordance with Article 7 of the Intergovernmental Agreement; and
WHEREAS, accordingly, the parties are entering into this Fourth Amendment to
Intergovernmental Agreement so as to clarify and document their intentions and mutual rights
and responsibilities with respect to the Boxelder Overflow Project and Boxelder Creek Flood
Mitigation Projects.
NOW, THEREFORE, in consideration of the mutual promises of the parties and other
good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree as follows:
1. Definitions Added. Article 1 of the Intergovernmental Agreement is hereby amended to
add the following new definitions:
"Boxelder Basin Regional Stormwater Authority" or "BBRSA" shall mean the
regional stormwater authority formed by agreement of the Board of
Commissioners of Latimer County, Colorado, Fort Collins and the Town of
Wellington, Colorado entitled Intergovernmental Agreement for Stormwater
Cooperation and Management by and between them and dated August 20, 2008.
"Boxelder Basin Regional Stormwater Authority Master Plan" shall mean the
master plan for improvements in the Boxelder Creek Stormwater Basin adopted
by and incorporated by reference as part of the intergovernmental agreement that
established the BBRSA.
"Boxelder Creek Flood Mitigation Projects" shall mean the general plan for storm
drainage improvements to significantly reduce the 100-Year stormwater runoff
within both the Boxelder Creek Drainage Basin and the Cooper Slough Drainage
Basin that contribute to the flooding potential in Boxelder Creek, which is
expected to include the conceptual elements identified in Section 7.1.
"East Side Detention Facility" shall mean that particular stormwater detention
facility described in Subsection 7.2(a), and work required to design, engineer and
construct the same.
2. Article 7 Superseded and Replaced. Article 7 of the Intergovernmental Agreement is
hereby deleted and replaced in its entirety with the following:
ARTICLE 7
BOXELDER CREEK FLOOD MITIGATION PROJECTS
7.1 Boxelder Overflow Project not Feasible nor Desirable. At the time of execution
of the Intergovernmental Agreement, Timnath intended to construct the Boxelder Overflow
Project, as defined in the Intergovernmental Agreement. The parties agree and hereby
acknowledge that the Boxelder Overflow Project is not feasible or desirable, based on additional
review by the parties, and further agree that Timnath will not proceed with said Project. Article 7
of the Intergovernmental Agreement provided for execution of a mutually agreeable easement on
Fort Collins property(the Boxelder Easement) if required for the Boxelder Overflow Project, and
further required Fort Collins to pay the total amount Two Million Dollars ($2,000,000) into
escrow in specified installments, for use for reimbursement of Timnath for up to fifty percent of
Timnath's incurred costs in the design, engineering, right-of-way acquisition and construction of
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the Boxelder Overflow Project. Fort Collins has placed funds in the total amount of One Million
Eight Hundred Thousand Dollars ($1,800,000) into escrow in accordance with said provisions of
Article 7. Fort Collins will place the remaining Two Hundred Thousand Dollars ($200,000) into
escrow in February 2013 in accordance with the provisions and schedule outlined in the original
Intergovernmental Agreement.
7.2 Boxelder Creek Flood Mitigation Projects. The parties agree and hereby
acknowledge that it is in the best interest of both Fort Collins and Timnath to work cooperatively
to design and construct projects along Boxelder Creek and its associated flow paths to mitigate
the impacts of flooding for the mutual benefit of the parties as well as the region. Accordingly,
the parties have developed a general plan for storm drainage improvements to significantly
reduce the 100-Year stormwater runoff within both the Boxelder Creek Drainage Basin and the
Cooper Slough Drainage Basin that contribute to the flooding potential in Boxelder Creek, which
is expected to include the following conceptual elements, which are together referred to as the
Boxelder Creek Flood Mitigation Projects and are to be constructed concurrently:
(a) East Side Detention Facility/Gray Lakes Reservoirs:
1. Construction of an earthen embankment (dam) and un-gated outlet to
create detention storage upstream of County Road 50.
(b) Boxelder Creek and Boxelder Creek/Latimer and Weld Canal Crossing:
1. Construction of a side spill weir crossing of the Larimer and Weld
canal to allow Boxelder Creek storm runoff to continue downstream
(south).
2. Boxelder Creek drainageway improvements adjacent to and upstream
(east) of Interstate Highway 25
(c) Boxelder Creek and Prospect Road West of 1-25:
1. Flood conveyance, bed and bank stabilization, stream restoration and
associated improvements on Boxelder Creek from 1-25 to just
downstream of Prospect Road; and
2. Culvert/bridge crossing(s) of Prospect Road.
(d) Cache la Poudre Overflow:
1. Construction of a side-flow spillway structure on Boxelder Creek,just
downstream of Prospect Road; and
2. Construction of an outfall channel and swale to convey flows to an
existing oxbow of the Poudre River.
7.3 Cost Sharing.
(a) The parties agree and hereby acknowledge that it is in the best interests of
both Fort Collins and Timnath to cooperate in making use of a portion of the funds deposited by
Fort Collins under Article 7 of the Intergovernmental Agreement to match expenditures by
Timnath for the design, engineering, and permitting of the Boxelder Creek Flood Mitigation
Projects, as specified in this Section and in Section 7.4.
Accordingly, Fort Collins and Timnath agree that Timnath or the Timnath Development
Authority ("TDA") on behalf of Timnath, shall be entitled to a portion of said escrowed funds
not to exceed Two Hundred Fifty Thousand and 00/1001h Dollars ($250,000.00) to match
payments by Timnath, or the TDA on behalf of Timnath, for up to fifty percent (50%) of the
costs actually incurred by Timnath or the TDA to proceed with the work described in Section
7.4. Disbursement in the amount of Two Hundred Fifty Thousand and 00/100`h Dollars
($250,000.00) shall be available upon execution of this amendment by both Fort Collins and
Timnath and shall be released to Timnath, or the TDA on behalf of Timnath, upon request from
the escrow agent in order to allow Timnath or the TDA to proceed with the work described in
Section 7.4. The parties agree to direct the escrow agent managing said funds to disburse said
funds in a manner consistent with this provision. The parties acknowledge that said funds are
intended as a match only to Timnath or TDA payments on invoices for the work described in
Section 7.4, and any amounts not applied by Timnath or the TDA for up to fifty percent (50%) of
costs for the same shall be returned to Fort Collins upon final completion of the work and final
payment under the related contract for services with BBRSA. Fort Collins shall be entitled to
review all invoices and other documentation related to said contract in order to verify the use of
funds in accordance with this Amendment. Timnath acknowledges and agrees that, should
Timnath arrange for performance by the TDA of any Timnath's obligations hereunder, Timnath
shall continue to be responsible to Fort Collins for full and satisfactory completion of any of such
obligations.
(b) It is the intent of the parties that the remaining escrowed Fort Collins
funds in the amount of One Million Seven Hundred Fifty Thousand and 00/100`h Dollars
($1,750,000.00), together with such remaining amounts as are not disbursed under Section
7.3(a), shall be applied toward the remaining design, engineering, right-of-way acquisition,
permitting and construction of the components of the Boxelder Creek Flood Mitigation Projects,
but only in the form of equal match to funds contributed by Timnath, or the TDA on behalf of
Timnath, for said purposes.
(c) The total cost for construction of the Boxelder Creek Flood Mitigation
Projects has not yet been determined but it is understood that it may exceed the total amount of
funds in escrow plus the matching funds provided by Timnath or the TDA on behalf of Timnath.
(d) Final determination of the design of the Boxelder Creek Flood Mitigation
Projects, and the costs, and cost-sharing, associated with the completion of said Projects, shall be
agreed upon under a future Amendment to this Agreement.
7.4 Timnath to Contract for Services. The Boxelder Creek Flood Mitigation Projects
are included in the Boxelder Basin Regional Stormwater Authority Master Plan. BBRSA has
initiated preliminary design engineering for said Projects, but continuation of this design
engineering is necessary in order to determine actual design and related costs and to allow said
Projects to proceed.
(a) Timnath, or the TDA on behalf of Timnath, shall contract with the
BBRSA for the following services:
Page 4 of 7
1. Preparation of the Feasibility Study and Final Application for a
Colorado Water Conservation Board loan to BBRSA for the East Side
Detention Facility which consists of the Gray Lakes Stormwater
Detention Facility and accompanying improvements;
2. Complete the conceptual design of the Middle Basin (Boxelder Creek/
Latimer and Weld Crossing), including modeling and collaboration
with the Lake Canal Ditch Company to determine the acceptable
crossing structure to accomplish the goals of the BBRSA Master Plan;
3. Initiate Final Design efforts (including Phase 11 of the geotechnical
investigation - seismic site, seepage and stability analysis) for the East
Side Detention Facility in order to prepare estimated costs for use in a
loan application to the Colorado Water Conservation Board to be
submitted no later than December 1, 2012; and
4. Initial coordination, meetings and preparation for United States Army
Corps of Engineers permitting and coordination with the Colorado
Office of the State Engineer.
(b) The work described in Subsection 7.4(a) is intended to allow BBRSA to
maintain an efficient design, submittal and construction schedule focused on an expedited
completion of the East Side Detention Facility in a timely manner with a targeted completion by
the end of 2014.
(c) Timnath, or the TDA on behalf of Timnath, shall work with BBRSA and
Fort Collins to develop an appropriate plan for payment to BBRSA of amounts required to
complete the foregoing work.
(d) As part of its contractual arrangements with BBRSA, Timnath or the TDA
on behalf of Timnath, shall require that BBRSA maintain appropriate documentation and make
any reports, data or design deliverables produced for BBRSA available to the parties for review
and use in connection with the Boxelder Creek Mitigation Projects and this Fourth Amendment
to Intergovernmental Agreement.
7.5 Satisfaction of Obligations. It is the intent of the parties that the performance of
the requirements of this Article 7 fully satisfies any obligation that Fort Collins may have to
Timnath to contribute to the management of storm drainage waters flowing from Boxelder Creek
insofar as such waters or the floodplain related thereto, may affect property within Timnath's
municipal boundaries or within the TGMA. Accordingly, Timnath has released Fort Collins and
its officers, employees, agents and assigns, from any and all claims or causes of action of any
kind whatsoever for any monetary damages or for any other remedy at law or in equity arising
from, connected with or in any way related to the flow, blockage or diversion of storm waters
from Boxelder Creek, the installation, operation and maintenance of culverts and other storm
water facilities related to that portion of I-25 that is adjacent to the TGMA, or the determination
of rainfall standards for areas within Timnath's municipal boundaries or the TGMA, insofar as
such claim or cause of action is based upon any acts or omission of Fort Collins or any of its
officers, employees, agents or assigns, on or before the Effective Date.
The parties acknowledge and agree that, in the 1980's, at Fort Collins' request, the
Colorado Department of Highways (CDOT) installed two additional box culverts under 1-25 at a
location that would, if the culverts were opened, allow a substantially greater volume of storm
runoff to flow from Boxelder Creek under I-25 and into portions of the Fort Collins GMA and
municipal limits and that such increased flows could do considerable damage to property within
such area and that, in order to properly manage and contain such flows, extensive new storm
water facilities must be constructed. Accordingly, both parties agree that no officer, employee,
agent or assign, shall attempt, directly or indirectly, at any time after the execution of this
Agreement, to persuade CDOT to take any action that would reasonably be expected to result in
the opening of said culverts, until such time as the Boxelder Creek Flood Mitigation Projects, or
other stormwater improvements satisfactory to the parties, are complete. In addition, if a third
party takes, or attempts to take, any such action prior to the completion of said projects, Timnath
agrees to support Fort Collins' opposition to such action by providing a letter to CDOT to that
effect upon the request of Fort Collins.
7.6 No Admission of Liability. Nothing in this Article or elsewhere in this
Agreement shall in any way or manner be construed as an admission of liability by Fort Collins
or its officers or employees for any claim or damages arising from or in any way related to the
lack of construction of the Boxelder Overflow Project, construction of the Boxelder Flood
Mitigation Projects, the overflow of waters from Boxelder Creek, FEMA's designation of certain
areas within the TGMA as being within a floodplain, or any related matters, nor shall anything
herein be construed as a waiver of any defenses, limitations and immunities established pursuant
to the Colorado Government Immunity Act (SS24-10-101, et seq. C.R.S.), the United States and
Colorado Constitutions, or under the common law or laws of the State of Colorado or of the
United States, including but not limited to Section 42 U.S.C. 1983.
3. No Further Modification. Except as expressly amended by this Amendment, the
Intergovernmental Agreement is unmodified and shall continue in full force and effect.
4. Binding Agreement. Both Timnath and Fort Collins intend that this Amendment shall be
binding upon them.
5. Amendments. This Amendment may only be amended, changed, modified or altered in
writing, signed by both parties hereto.
6. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Colorado.
7. Jointly Drafted; Rules of Construction. The parties hereto agree that this Amendment
was jointly drafted, and, therefore, waive the application of any law, regulation, holding or rule
of construction providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
8. Defined Terms. Capitalized terms used in this Agreement but not otherwise defined
herein shall have the meanings set forth in the Intergovernmental Agreement.
Page 6 of 7
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
THE TOWN OF TIMNATH, COLORADO
By:
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM
Town Attorney
THE CITY OF FORT COLLINS, COLORADO
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM
City Attorney