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
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EXHIBIT A
AGREEMENT !
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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
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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,
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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
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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
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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
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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
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