HomeMy WebLinkAbout2019-079-07/16/2019-AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH NUMEROUS STAKEHOLDERS REGARDING A JOINT ST RESOLUTION 2019-079
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH NUMEROUS STAKEHOLDERS REGARDING
A JOINT STUDY OF THE BOXELDER CREEK WATERSHED DAMS
WHEREAS, the watershed of Boxelder Creek includes various lands in northern Larimer
County, including lands in Fort Collins and its Grown Management Area; and
WHEREAS, Boxelder Creek flows from its headwaters in northern Latimer 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
la 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, (commonly referred to as the `B Dams")
which includes dams B-2, B-3, B-4, B-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, the Colorado Department of Water Resources, Dam Safety Division, has
recently changed the classification of the B-2, B-3 and B-4 Dams from "significant" to "high"
hazard due to the increase in development along Boxelder Creek below these B Dams, and the
classification on the other dams,such as the B-5 and B-6 dams, may be changed in the future;and
WHEREAS, the change of the classification of some of the B Dams has prompted a
regional conversation regarding the B Dams, including their operation and future; 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
WHEREAS,the Parties are interested in funding and performing a joint study("Study")of
the B Dams 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
WHEREAS, the Parties intend to utilize the Study as a basis for subsequent discussions
and potential agreements related to the B Dams and the associated capital improvements that are
needed for these facilities; and
WHEREAS, the Parties have negotiated an agreement regarding the Study as set for the in
the draft Agreement attached hereto as Exhibit"A", and incorporated herein by reference.
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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 modifications and 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.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 16th
day of July, A.D. 2019.
Mayor
ATTEST:
FORT CO
City Cl " SEAL
_2_
EXHIBIT A
AGREEMENT BETWEEN NUMEROUS STAKEHOLDERS REGARDING A
JOINT STUDY OF THE BOXELDER CREEK WATERSHED DAMS
This Agreement is entered into by and between the following Parties: the City of Fort
Collins,Colorado,a municipal corporation("Fort Collins");Larimer County, Colorado,a political
subdivision of the State of Colorado("County");the North Poudre Irrigation Company,a Colorado
corporation ("North Poudre"); the Town of Timnath; Colorado, a municipal corporation
("Timnath"); and the Town of Wellington, Colorado, a municipal corporation ("Wellington"),
Fort Collins, North Poudre, Timnath, and Wellington are collectively referred to as the "Non-
County Parties." The County, Fort Collins; Timnath; and Wellington are collectively referred to
as the"Governmental Parties."
RECITALS
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,though 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. Water from Boxelder Creek then flows down the Cache la Poudre River
generally to the east through more farmlands, developed and developing lands, and additional
political boundaries (including those of some of the Parties).
B. Like all streams, Boxelder Creek is prone to potential flood risks. To help address these
risks, there is a series of dams known as the Boxelder Creek Watershed Dams, and commonly
referred to as the"B Dams,"which includes dams B-2, B-3,134,B-5, and B-6. The B Dams 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.
C. The Colorado Department of Water Resources,Dam Safety Division,has recently changed
the classification of the B-2, B-3 and B=4 Dams from "significant" to "high" hazard, due to the
increase in development along Boxelder Creek below these B Dams. The classification on the
other dams, such as the B-5 and B-6 dams, may be changed in the future, but at this time there is
no intention of reclassifying the hazard classifications. See Office of the State Engineer Rules and
Regulations for Dam Safety and Dam Construction, 2 CCk 402-1. This has prompted a wider;
regional conversation regarding B Dams, including their operation and future.
D. Each of the Parties to this Agreement has significant interests related to the B Dams and is
interested in performing a joint study of the B Dams 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. The Parties therefore desire a joint study of the B Dams ("Study") asset
forth in detail below. The Study will primarily focus on the B-2, B-3, and B-4 Dams based on the
recent modified classification and provide insight and guidance on the potential for additional
classification changes to the other B Dams. The study will also consider if land use changes
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downstream of B-5 and B-6 and upstream of 13-2 could trigger potential upgrades to the B-5 and
B-6 dams.
E. The County intends to utilize an engineering firm that the County already has under
contract("Consultant"),to perform the Study. The Non-County Parties will reimburse the County
for their portion of the Study as described below.
F. The Parties intend to utilize the Study as a basis for subsequent discussions and potential
agreements related to the B Dams and the associated capital improvements that are needed for
these facilities. Options for the long-term operations and maintenance needs and responsibilities
will also be considered, including potential reallocation of operation and maintenance
responsibilities.
G. The Governmental Parties are authorized into enter into the following intergovernmental
agreement pursuant to C.R.S. §29-1-203. As a corporation organized under Colorado law,North
Poudre is authorized to enter into this Agreement.
AGREEMENT
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as
if fully restated in their entirety.
2. THE SCOPE. The scope of the Study("Scope") shall include:
• Coordination of the relevant activities of the Parties and the United States Department
of Agriculture, Natural Resources Conservation Service related to improvements and
funding of capital improvements and maintenance needs for the B-2,13-3 and B4 Dams
required because of the classification change;
• An analysis of potential cost-share approaches to future capital and operation and
maintenance costs of the B-2, B-3, and B-4 Dams. The Consultant will review and
update available cost estimates for the B-2 and B-3 dams and develop a cost estimate
for the B-4 dam. The cost estimate for the B-4 dam will be a planning level estimate
based on current data available;
• Conduct an assessment of the potential reclassification of the B-5 and. 13-6 dams
including a high-level risk and financial implications and make recommendation(s)for
potential improvements needed.
• An assessment of the B Dams, including the liabilities and risks associated with
potential future reclassification and therefore needing future improvements.
• The Parties will meet with the Consultant to further jointly develop and modify the
Scope as may be necessary. Before the Consultant begins the Study,each of the Parties
shall confirm in writing(such as by email or otherwise) that any modifications to the
Scope are acceptable. The total costs of the Study shall be limited to $250,000.
3. OUTCOME OF PROJECT AND SCOPE OF WORK. The intent of this scope of work is
to gather data and facts to develop recommendations for a second phase agreement that will
identify a methodology to fund the capital improvements of the appropriate dams. The scope
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of work will also evaluate alternatives for meeting long-term operations and maintenance
responsibilities between the Parties,to be part of a second phase agreement. The stakeholders
will need to actively participate and shape recommendations for the second phase IGA, so that
it can be supported for implementation.
4. COOPERATION WITH THE STUDY. The County shall be responsible for engaging
the Consultant to conduct the study. The Non-County Parties agree to cooperate in good faith with
the County and the Consultant for the Study, including: developing and modifying the a Scope, as
necessary; reviewing and providing comments on draft analyses and reports generated by the
Consultant as part of the Study in its development and completion; and providing information
needed to complete the Study to the Consultant, in a timely manner. The County agrees to work
in good faith to ensure that the Non=County Parties have a meaningful opportunity to review and
provide comments as discussed above, and to address comments.
5. OWNERSHIP OF THE STUDY. Each of the Parties will be an owner of the Study and
all other deliverables provided by the Consultant on the Study (including, but not limited to,
analyses, analytical tools, data, models, and reports and drafts thereof). The County shall provide
the Non-County Parties with a copy of the draft and final reports, as well as the data, analytical
tools, and all other information generated by the Consultant in association with the Study that are
related to their systems within 14 days of the County's receipt of the same, subject to the terms
and conditions of this Agreement.
6. REIMBURSEMENT TO THE COUNTY. Each of the Non-County Parties shall pay
the County 115`h of the total cost of the Study, up to a maximum of$50,000, within 45 days of
receiving an invoice from the County for the same. The County may withhold providing any of
the documents identified in Paragraph 5 to any Non-County Party until payment has been made
by that Non-County Party.
7. FISCAL CONTINGENCY. Notwithstanding any other provisions of this Agreement to
the contrary,the obligations of the Governmental Parties in fiscal years after the 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 Governmental Part to appropriate such funds shall
be grounds for termination of this Agreement as to such Party upon written notice pursuant to
Paragraph 11.
.8. REMEDIES. If any Party fails to comply with.the provisions of this Agreement,the other
Parties,after providing prompt written notification to the noncomplying Party,and upon the failure
of the noncomplying Party to achieve compliance within 35 days following receipt of such notice,
may seek all such remedies available under Colorado'law.
9. NO THIRD-PARTY BE_.NEFICIARIES. 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 the Parties are only benefitted to the extent provided under the
express terms and conditions of this Agreement.
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10. 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.
11. 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 ar governments or any other governmental provisions of State law. Specifically, by
entering into this Agreement, neither 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, et seq., or any successor or similar statutes of the State of Colorado.
12. NOTICES. All notices or other communications hereunder shall be suffciently 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 e-mail 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 8052.2-0580
With copy to: Fort Collins City Attorney
300 LaPorte Avenue; P.O. Box 580
Fort Collins, Colorado 80522-0580
E-mail: epotyondy@fcgov.com
and: Fort Collins Utilities
Attn: WEFS Deputy Director
700 Wood Street;PO Box 580
Fort Collins, Colorado 80522
E-mail: tconnor@fcgov,com
To County: County Manager
Larimer County Courthouse Offices
200 West Oak St, 2nd Flood; PO Box 1190
Fort Collins, CO 80522-1190
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With copy to: Larimer County Attorney9s Office
PO Box 1606
Fort Collins, CO 80522
With copy to: Larimer County Engineering Department
Attm County Engineer
200 West Oak St., Suite 3000; PO Box 1190
Fort Collins, CO 80522-1190
To North Poudre; General Manager
Tad Moen
North Poudre Irrigation
3729 Cleveland Ave
Wellington, CO 80549
With copy to: John Justus, Shareholder
Hoskin Farina&Kampf
PO Box 40
Grand Junction, CO 81502
To Timnath: Timnath Town Manager
4750 Signal Tree
Timnath, CO 80547
With copy to: Town Attorney
White Bear Ankele Tanaka& Waldron
2154 East Commons Avenue, Suite 2000
Centennial, CO 80122
With copy to: Donald Taranto
748 Whalers Way, Suite 200
Fort Collins, CO 80525
To Wellington: Town Administrator
PO Box 127,
Wellington, CO 80549
With copy to: Wellington Public Works
Attn: Robert Gowing
PO Box 127,
Wellington, CO 80549
Email; gowingbj@wellingtoncolorado.gov
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With copy to: March Olive and Pharris, LLC
Attn: Brad March
1312 S College Ave
Fort Collins, CO 80524
Email: Bmarch@bmarchlaw.com
13., 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.
14. . ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties
regarding the matters addressed herein. This Agreement binds and benefits the Parties and their
respective successors. Covenants or representations not contained in this Agreement regarding the
matters addressed herein shall not bind the Parties.
15. 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.
16. ASSIGNMENT. No Party may assign any rights or delegate any duties under this
Agreement without the written consent of all other Parties.
17. 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.
[Remainder of Page Intentionally Blank]
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CITY OF FORT COLLINS, COLORADO, a municipal corporation
By: Date:
Darin A. Attebeny, City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO LEGAL FORM:
By:
City Attorney's Office
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LARIMER COUNTY, COLORADO, a political subdivision of the State of Colorado
By: Date:
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NORTH POUDRE IRRIGATION COMPANY, a Colorado corporation
By: Date:
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TOWN OF TIMNATH, COLORADO, a municipal corporation
By: Date:
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TOWN OF WELLINGTON, COLORADO, a municipal corporation
By: Date:
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