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HomeMy WebLinkAbout1994-164-10/04/1994-COLORADO STATE UNIVERSITY CONDITIONAL WATER RIGHT DIVERSION DAM IGA NATURE CENTER POUDRE RIVER RECRE RESOLUTION 94-164 AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT WITH COLORADO STATE UNIVERSITY PERTAINING TO THE NATURE CENTER DIVERSION DAM WHEREAS, the City is the appropriator of a conditional water right with a point of diversion at the Nature Center Diversion Dam ("the Water Right") for the diversion of water for municipal recreational , piscatorial , wildlife and fishery purposes and is the applicant in a pending court case adjudicating the Water Right; and WHEREAS, the location where the beneficial uses of water under the Water Right will occur is the stream bed of the Cache La Poudre River as it flowed prior to the cutting of a new channel in 1983-84; and WHEREAS, the location of the stream bed referred to above is on lands (the "Lands") owned by the Colorado State Board of Agriculture, acting by and through Colorado State University ("CSU") ; and WHEREAS, the City has constructed the Nature Center Diversion Dam ("the Diversion Dam") on the Lands, with the consent of CSU; and WHEREAS, the beneficial uses of the Water Right furthers the goals of the Fort Collins Poudre River Recreation Corridor Plan, to the benefit of the citizens of Fort Collins; and WHEREAS, CSU desires to restore, preserve and manage the Lands as a habitat for fish and wildlife, and for recreational research and public service purposes related to such restoration, preservation and management; and WHEREAS, in pursuit of those purposes, CSU has established the CSU Environmental Learning Center upon the Lands; and WHEREAS, the beneficial uses of the Water Right benefit CSU in achieving the educational purposes of the CSU Environmental Learning Center and the restoration, preservation and management of the Lands; and WHEREAS, the City and CSU desire to enter into an Intergovernmental Agreement to formalize their understanding with regard to the Diversion Dam and to reduce to writing the terms and conditions upon which the City may continue to utilize the Lands and the Diversion Dam. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Mayor is hereby authorized to enter into an Intergovernmental Agreement with CSU with regard to the ongoing operation of the Diversion Dam, which Agreement shall be in substantially the same form as shown on Exhibit "A," attached hereto and incorporated herein by this reference, subject to such minor changes in form or substance as may be acceptable to the Mayor, the City Manager and the City Attorney. Passed and adopted at a regular meeting of the Council of the City of Fort Collins, Colorado, this 4th day of October, A.D. 1 or ATTEST: Q4H City Cler 2 EXHIBIT A AGREEMENT ! L' THIS AGREEMENT is entered into to be effective as of the day of , 1994, by and between the Colorado State Board of Agriculture, acting by and through Colorado State University ( "CSU" ) and the City of Fort Collins Water and Wastewater Utility ( "Fort Collins") . RECITALS A. CSU is a major research, land grant university having a balanced program of research, teaching, public service and extension. B. Fort Collins is the appropriator of the conditional water right- with paint of diversion at the Nature Center Diversion Dam (the "water right") for the diversion of water at a rate of- up to 55 cfs for municipal recreational purposes, including fishery, wildlife, and piscatorial purposes, and is the applicant in the case adjudicating the water right styled Concerning the application for water rights of the City of Fort Collins in Larimer Coup, Case No 86CW371, District Court, Water Division 1, Colorado. C. The location where the beneficial uses of water under the exercise of the water right will occur is the stream bed of the Cache La Poudre River as it flowed prior to the cutting of a new channel in 1983-84, as more particularly described and depicted on Exhibit A, (the "stream bed" ) attached hereto and incorporated by reference. D. The location of the stream bed depicted on Exhibit A hereto is on lands of CSU (the "Lands of CSU" ) , as more particularly described on Exhibit B, attached hereto and incorporated by reference. E. Fort Collins has constructed the Nature Center Diversion Dam on the Lands of CSU, with the consent of CSU, at the location described in Exhibit "C" (the "dam") attached hereto and incorporated herein by this reference. F. The beneficial uses of the water right furthers the goals of the Fort Collins Poudre River Recreation Corridor Plan, to the benefit of the citizens of Fort Collins. G. CSU desires to restore, preserve, and manage the Lands as a habitat for fish and wildlife, and for educational, research, and 1 public service purposes related to such restoration, preservation, management, and, for the pursuit of those purposes, CSU has established the CSU Environmental Learning Center (A/K/A Northern Colorado Nature Center) upon the Lands. H. The beneficial uses of the water right benefit CSU in achieving the educational purposes of the CSU Environmental Learning Center and the restoration, preservation, and management of the Lands of CSU. I. Fort Collins and CSU desire to provide for a defined property description for the Nature Center Diversion Dam, as described on Exhibit C hereto and agree upon the terms and consitions of the City' s right of continue to utilize the Lands of CSU for such purposes. NOW, THEREFORE-, in considerationof the foregoing Rer tal-a and- of the benefits to the CSU Environmental Learning Center conferred by the construction of the Nature Center Diversion Dam and development of the water right by Fort Collins, and the mutual covenants and promises contained herein, Fort Collins and CSU agree as follows: 1 . Operation of the Dam CSU agrees to the operation of the dam by Fort Collins for the purpose of diverting the waters of the Cache La Poudre River, the routing of water through the stream bed by means of such diversions, and the use of the diverted water as it passes from the dam and through the stream bed, on and across the Lands of CSU, for municipal recreational, piscatorial, wildlife, and fishery purposes. 2 . Productive Habitat Fort Collins and CSU shall cooperate to create and manage productive habitat within and along the stream bed on the Lands of CSU. 3 . Use by CSU Fort Collins agrees to and shall allow the beneficial uses of the diverted water by the CSU Environmental Center in pursuing its scientific, educational, and public service purposes. 4 . No Interference CSU shall refrain from interfering with the- divers; nn and nCe of- water by Fart Coi i ;nG as described in this Agreement . 5 . Dam Maintenance Fort Collins shall have the right of ingress and egress from CSU to the dam for purposes of inspection, maintenance, repair, and, in the event of failure of the dam, 2 reconstruction. Such ingress and egress shall occur following routes agreed upon by CSU and Fort Collins, at times and in a manner which are practicable, but which will cause a minimum of disturbance to the lands and operations of the CSU Environmental Learning Center. 6 . Control of Water Flow In diverting the waters of the Cache La Poudre River using the dam, Fort Collins shall control the flow of the diverted waters over the Lands of CSU along the course described and depicted on Exhibit A hereto. 7. Wildlife and Fish Stocking Fort Collins shall have the right to stock aquatic wildlife, including fish, attract and/or stock non-aquatic wildlife over the Lands of CSU along the course described and depicted on Exhibit A hereto. 8 . Improvement of Stream Bed Fort Collins shall have the right to improve the stream bed and banks of the stream bed in order to improve the habitat as needed to fully accomplish the beneficial uses of the Water Right, consistent with fish and wildlife habitat improvement and management principles as determined by Fort Collins in consultation with CSU. 9 . CSU Not to Divert Waters CSU shall neither divert the waters flowing within the stream bed, nor consent to the request or demand of any person or entity to utilize the Lands of CSU to divert the waters flowing therein. "Divert" is defined as removing water from its natural course or location, or controlling water in its natural course or location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device. 10 . Use by Citizens CSU- shall provide ac aas by- the citizens of Fort Collins to the lands of CSU and the stream bed for purposes of enjoying the benefits of the Water Right; provided, however, that CSU, after consultation with Fort Collins, may limit such access as appropriate to protect and implement the purposes of the Environmental Learning Center. 11. Term and Termination a. This Agreement shall be effective as of , 1994 for an indefinite term. b. In the event of any material breach of this Agreement by either party which shall continue for thirty (30) or more days after written notice of such breach (which notice shall include a 3 reasonably detailed statement of the nature of such breach) shall have been given to the defaulting party by the non-defaulting party, the non-defaulting party shall have the right to terminate this Agreement by providing written notice within ten (10) days thereof . Exercise by either party of its termination rights shall in no way prevent such party from pursuing against the defaulting party any and all other remedies available at law or in equity. 12 . Notice Any notice required or permitted by this Lease may be delivered in person or sent by registered or certified mail, return receipt requested, to the party at the address as hereinafter provided, and if sent by mail it shall be effective when posted in a U. S. Mail Depository with sufficient postage attached thereto: University: Facilities Management with copy to Colorado State University General Counsel Fort Collins, CO 80523 at same address Fort Collins: Notice of change of address shall be treated as any other notice. 13 . Entire Agreement This Agreement, supersedes all previous contracts, understandings and agreements of the parties concerning the subject matter of this Agreement, and constitutes the entire agreement between the parties. No oral statements or prior written material not specifically incorporated herein shall be of any force and effect and no changes in or additions to this Agreement shall be recognized unless incorporated herein by amendment as provided herein, such amendment (s) to become effective on the date stipulated therein. The parties specifically acknowledge that in entering into and executing this Agreement, they have relied solely upon the representations and agreements contained in this Agreement and no others. 14 . Amendments and Agreement Execution This Agreement and any amendments thereto shall be in writing and executed in multiple copies on behalf of either party by an official authorized with respect to such execution. Each multiple copy shall be deemed an original, but all multiple copies together shall constitute one and the same instrument . 15 . Assignment No assignment of this Agreement or the rights and obligations thereunder shall be valid without the specific 4 written consent of both parties hereto. 16 . Waiver of Breach The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach of the same or other provision hereof. 17 . Severability In the event any provision of this Agreement is held to be unenforceable for any reason, the remaining portion of this Agreement shall remain in full force and effect. 18 . Indemnification To the extent permitted by Article V, Section 7 of the City of Fort Collins Charter, Fort Collins shall indemnify, save and hold harmless CSU, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any negligent act or omission by the Fort Collins, or its employees, agents, subcontractors, or assignees pursuant to the terms of this Agreement. 19 . Maintenance of Dam Fort Collins shall be solely responsible and liable for the design, maintenance, and operation of the Nature Center Diversion Dam and CSU shall have no obligation therefore whatsoever. 23-. Governing- Law- The laws- of the State of Colorado- and- rules and regulations issued pursuant thereto shall be applied in the interpretation, execution and enforcement of this contract . Any provision of this contract whether or not incorporated herein by reference which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. 21 . Article and Other Headings The article and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below to be effective as of the date first 5 set forth above. THE CITY OF FORT COLLINS, COLORADO a Municipal corporation ATTEST: By: City Clerk City Manager APPROVED AS TO FORM: Assistant City Attorney COLORADO STATE BOARD OF AGRICULTURE ATTEST: By: BY: John W. Bliss, Secretary James R. Isgar, President APPROVED: By: By: University Contracts Advisor General Counsel 6