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Home My WebLink About20120022.tiff LD CO LAWRENCE JONES CUSTER GRASMICK LL5mHISS!IHERS ATTORNEYS AT LAW RR q 5245 RONALD REAGAN BLVD.,SUITE I 201 �b 21 53P JOHNSTOWN,COLORADO 80534 TELEPHONE 970-622-8181 TELECOPIER:970-660-4412 RECEIVED W W W.LICGLA W.COM r` BRAD(&LICGLA W.COM KIM R LAWRENCE • P.ANDREW JONES • KELLY J.CUSTER • BRADLEY C.GRASMICK • DAVID P.JONES December 22, 2011 Mr. Jeff Deatherage State Engineer 1313 Sherman Street, Room 818 Denver, Colorado 80203 Re: Request for Substitute Water Supply Plan for Weld County (Case No. 09CW100) Dear Mr. Deatherage: This letter is to request renewal of a Substitute Water Supply Plan for the Board of County Commissioners of Weld County pursuant to §37-92-308(4), C.R.S. Supporting documents are included in the December 15,2011 letter report by Michelle Hatcher of Clear Water Solutions,Inc. This request would extend the plan from April 1,2012 through March 31,2013. The check for the filing fee of$300.00 is included herewith. Applicant filed an application for underground water right and plan for augmentation on July 30,2009,in Case No.09C W100,100,Water Court,Division No. 1. The original SWSP was approved on November 12,2009. This renewal request will extend the plan past 3 years. This case has been re- referred to the Water Court and is currently set for trial in June 2013. Failure to operate under a substitute supply plan will cause an undue hardship on the County as the County uses this well for several public uses including dust control of County Roads,haul roads and stockpiles. The County's uses promote the health, safety and welfare of the public. For access to electronic copies of the SWSP documents,go to: ftp://ftp.ljcglaw.com 2)Login: Weld 3) Password: Well'and2. Kahle eeilleee) zc P Iqw I - (-1 • 1 #1 10) -(977/ 2012-0022 Page 2 of 2 Thank you for your consideration of this renewal. Sincerely, LAWRENCE JONES CUSTER GRASMICK LLP ;/21Z.,() Brad Grasmick Windsor, Colorado 2011.12.22 09:35:23-07'00' Bradley C. Grasmick BCC/nil Enclosures CC: Weld County Bruce Barker Dave Bauer Clay Kimmi Clear Water Solutions LAWRENCE JONES OUSTER GRASMICK LLP ATTORNEYS AT LAW 5245 RONALD REAGAN BLVD.,SUITE I JOHNSTOWN,COLORADO 80534 TELEPHONE 970-622-8181 TELECOPIER:970-660-4412 W W W.LICGLA W.COM BRAMLICGLAW.COM KIM R.LAWRENCE • P.ANDREW JONES • KELLY J.CUSTER • BRADLEY C.GRASMICK • DAVID P.JONES December 22, 2011 Joseph Dischinger VIA LEXISNEXIS `SERVE ONLY' Counsel for FRICO Fairfield and Woods, P.C. 1700 Lincoln Street, Suite 2400 Denver, CO 80203-4524 Doug Sinor Counsel for NCWCD Trout Raley Montano Witwer & Freeman, P.C. 1120 Lincoln Street, Suite 1600 Denver, CO 80203 Re: Request for Substitute Water Supply Plan for Weld County (Case No. 09CW100) Dear Joe and Doug: Applicant has requested a renewal of the Substitute Water Supply Plan(SWSP)approved on November 12, 2009 pursuant to §37-92-308(4), C.R.S. Supporting documents include the letter report to Jeff Deatherage by Michelle Hatcher of Clear Water Solutions, Inc. dated December 15, 2011. This request would extend the plan from April 1, 2012 through March 31, 2013. Applicant filed an application for underground water right and plan for augmentation on July 30,2009,in Case No.09CW 100,Water Court,Division No. 1. The original SWSP was approved on November 12, 2009. The complete renewal plan including the Engineering Report prepared by Clear Water Solutions dated December 15,2011 and supporting documents can be found on our FTP site. Go to: ftp://fto.ljcglaw.com 2) Login: Weld 3) Password: Wellland2. Page 2 of 2 I am sending you notice of the request as required by §37-92-308(4).You have 30 days after service of this notice to file comments on the SWSP. The comments may include "any claim of injury or any terms and conditions that should be imposed upon the plan to prevent injury to an opposer's water rights or decreed conditional water rights and any additional information an opposer wishes the state engineer to consider in reviewing the substitute supply plan."§37-92-308(4)(a)(III). The State Engineer will not consider comments received after the thirtieth day. Please send me a copy of any comments at the above address or by e-mail. If you have any questions Michelle and I will make ourselves available to discuss the plan with you. Sincerely, LAWRENCE JONES CUSTER GRASMICK LLP Brad Grasmick Windsor, Colorado 2011.12.22 09:35:35 -07'00' Bradley C. Grasmick BCG/bjj Enclosures CC: Weld County—Bruce Barker, Dave Bauer, Clay Kimmi Clear Water Solutions THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY 09CW100 REQUEST FOR RENEWAL SUBSTITUTE WATER SUPPLY PLAN FOR 2012-2013 PURSUANT TO §37-92-308(4) C.R.S. Contact Persons: Bradley C. Grasmick, Esq. Lawrence Jones Custer Grasmick LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, CO 80534 970-622-8181 brad r(D.Ilcglaw.corn Steve Nguyen Michelle Hatcher Clear Water Solutions, Inc. 8010 S. County Road 5, Suite 105 Windsor, Colorado 80528 970-223-3706 michelle(�clearwatercolorado.com THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY SWSP 2012-2013 PROJECT DESCRIPTION This is a Request for Renewal of a Substitute Water Supply Plan(SWSP)pursuant to§37-92-308(4), C.R.S. The 2011 SWSP was approved on March 23,2011. This would extend the plan from April 1, 2012 through March 31, 2012. A filing fee of$300 has been submitted with the request. Applicant filed an application for underground water right and plan for augmentation on July 30, 2009, in Case No. 09CW100, Water Court, Division No. 1. The complete renewal plan includes the Engineering Report prepared Michelle Hatcher of Clear Water Solutions,Inc.dated December 15,2011 and supporting documents. The plan is posted on an ftp server accessed as follows: 1) Go to: ftp://ftp.licglaw.com 2) Login: Weld 3) Password: Well1 and2. Applicants'plan would provide for replacement of depletions from the County's Dust Control Well located near Briggsdale. The maximum consumptive use for the Dust Control Well#2 will be 15.0 acre-feet for the plan year. All pumping is considered 100 percent consumptive. New Cache will provide fully consumable water to the depletion point at the intersection of Crow Creek and the New Cache Ditch to adequately replace depletions associated with Dust Control Well #2 per its agreement with Applicant. • clearWATERsolutions water rights • planning • engineering December 15, 2011 Mr. Jeff Deatherage, P.E. State Engineer's Office 1313 Sherman Street, Room 818 Denver, CO 80203 RE: 2012 Substitute Water Supply Plan Renewal for Weld County's Dust Control Well#2, Case No. 2009CW100 Dear Mr. Deatherage: On behalf of Weld County, we request approval of a substitute water supply plan (SWSP) renewal for Dust Control Well#2 located near Briggsdale, Colorado. The original SWSP was approved by your office on November 9, 2009 for the period of August 1, 2009 through March 31, 2010. The current SWSP is approved through March 31, 2012. We are submitting this SWSP renewal under CRS §37-92-308(4) prior to the expiration date of the 2011 SWSP. A check made payable to the Division of Water Resources for the $300 application fee is endosed. An application for an Underground Water Right and Plan for Augmentation was filed to Water Court, Water Division 1, Case No. 2009CW100, on July 30, 2009. 3-YEAR SHOWING This renewal seeks to extend the SWSP beyond three years from the date of initial approval. Under CRS §37-92-308(4)(b), Weld County must demonstrate to the State Engineer that the delay in obtaining a Water Court decree Is justifiable and that not being able to continue to operate under a SWSP until a decree is entered will cause undue hardship. Renewal beyond the three years is justifiable. Weld County's Case No. 09CW100 was re-referred and is set for trial in June 2013. Additionally, the County has been working to settle with objectors and has stipulated with the Farmer's Reservoir and Irrigation Company. For all these reasons, the delay in obtaining a Water Court decree is justifiable. As shown by Weld County's draft decree as well as continued operation under SWSPs, Weld County is actively utilizing its rights for the specified uses. If Weld County is not 8010 S.County Road 5,Ste.105 I Windsor,CO3 0528 I (T)970.223.8706 I (F)970.223,3763 I www.clearwatercolorado.com Mr. Jeff Deatherage, P.E. 2012 SWSP Renewal for Dust Control Well#2 December 5, 2011 Page 2of5 able to continue to operate under SWSPs until a decree is entered, undue hardship will occur. WELL LOCATION Dust Control Well #2 is located in the NW' of the NW ' , Section 28, Township 8 North, Range 62 West of the 6th P.M. in Weld County. Figure 1 is a vicinity map of the subject well. CONSUMPTIVE USE Weld County owns and operates Dust Control Well #2 for uses associated with the County's gravel pit operations and public works projects. These uses include dust control of County roads, haul roads, and stockpiles; washing and processing of sand, gravel and aggregate; washing of trucks and equipment; evaporative losses from material mined; construction of public roads and facilities; reclamation irrigation of County property and wetlands; and fire suppression and emergency response. Actual use from Dust Control Well #2 has been measured and recorded monthly since July 2010, which is the date of first use. Weld County anticipates that they will pump 15.0 acre-feet per year from Dust Control Well#2 from March through November. The County will use this well to fill its tanker trucks for uses throughout Weld County. The 15.0 acre-feet of annual pumping will be considered 100 percent consumptive. A summary of the pumping schedule is shown in Table 1. STREAM DEPLETIONS We determined that depletions from Dust Control Well#2 occur to Crow Creek. The depth of the well corresponds to the Laramie-Fox Hills aquifer. Through coordination with the Division of Water Resources (DWR) and based on our review of the DWR's Cheyenne Basin Structure Contour Map of the Top of the Laramie—Fox Hills Aquifer, sands of the Laramie-Fox Hills aquifer are in contact with Crow Creek approximately nine miles southeast of the well near Comish, Colorado. It is our understanding that Crow Creek does not become live until the intersection of the New Cache la Poudre Irrigating Company's (New Cache) Ditch and Crow Creek, approximately 12 miles southeast of Dust Control Well #2. We chose the depletion point at the point Crow Creek becomes live. Due to the distance from the well location to the point of depletion, actual lagged depletions are delayed. To be conservative, we will replace steady-state depletions at Crow Creek, which is more than sufficient to cover Dust Control Well #2 pumping depletions. We used the Glover methodology in the Integrated Decision Support Group Alluvial Water Accounting System Version 1.5.70 ("IDSAWAS") to determine well pumping impacts to Crow Creek. Infinite aquifer characteristics required for the IDSAWAS ©Clear Water Solutions,Inc, Mr. Jeff Deatherage, P.E. 2012 SWSP Renewal for Dust Control Well#2 December 5, 2011 Page 3 of 5 Glover method were determined from a review of the following: • The distance "X"was measured along a line from the well to the intersection of New Cache's Ditch and Crow Creek as determined in ArcMap. • The transmissivity value for the aquifer was determined using USGS Atlas HA- 659, Hydraulic Characteristics of the Principal Bedrock Aquifer in the Denver Basin, Colorado(Robson, 1983). While the location of the well is not within the Denver Basin, the publication presents parameters for the Laramie-Fox Hills aquifer. We used parameters for the Laramie-Fox Hills from locations near the north end of the Denver Basin, which we believe is a good representation of the transmissivity for Dust Control Well #2. • Because the well is under confined conditions, the model uses a storage coefficient. Glover parameters for Dust Control Well#2 are shown in the following table: Dust Control Well#2 Glover Parameters Glover Parameters Location of Depletion Glover X Transmissivity Storage (ft) (gpd/R) Coefficient SW'/4 of the NW''4 of Section 16,Township 6 63,885 1,000 0.0002 North, Range 63 West Table 1 shows the steady-state lagged stream depletion effects on Crow Creek for Dust Control Well#2. Steady-state stream depletions equal 15 acre-feet for Dust Control Well#2. REPLACEMENT WATER To make replacements at the point where Crow Creek becomes live, Weld County has entered into an agreement with Lower Poudre Augmentation Company and the New Cache. This agreement is included as Appendix A. Per the agreement, New Cache will providd augmentation water through consumptive use credits generated from their recharge reservoir or by direct release into Crow Creek in return for Weld County's City of Greeley effluent. This is not a river exchange but rather a trade of water in lieu of a monetary payment. Weld County has a perpetual lease with the City of Greeley for the right to use up to 300 acre-feet per year of Greeley's reusable effluent. This water is fully consumable and is decreed for augmentation. New Cache will deliver augmentation water at the intersection of Crow Creek and New Cache Ditch located in the SW % of the NW '/ of Section 16, Township 6 North, Range ©Clear Water Solutions,Inc. Mr. Jeff Deatherage, P.E. 2012 SWSP Renewal for Dust Control Well#2 December 5, 2011 Page4of5 63 West of the 6th P.M. in Weld County. Alternatively, New Cache may provide augmentation credits from their recharge operations if water cannot be delivered to the intersection of Crow Creek and New Cache Ditch. Figure 2 shows the replacement points for the operation. Per the agreement, Weld County will provide New Cache with Greeley effluent at two times the amount of augmentation water provided by New Cache or up to 30 acre-feet per year. The perpetual City of Greeley lease is used for several Weld County projects; only a portion of this total lease amount will be used for this plan. The City of Greeley consented to this agreement with New Cache and a copy of Weld County's perpetual lease from Greeley is included in Appendix B. A schedule of replacements provided by New Cache, and resulting net river balance, are shown in Table 2. WELL PERMIT Well permit#68771-F was issued on November 12, 2009 for 15.0 acre-feet. The consumptive use remains under this amount and the well permit remains valid. MEASUREMENT AND ACCOUNTING Weld County will replace steady-state depletions and will report these depletions in their monthly accounting. Weld County will measure and record monthly water use from Dust Control Well#2. Weld County will provide monthly accounting to the Division One Engineer and District One Water Commissioner. Appendix C includes the summary page of the monthly accounting form. NOTIFICATION Notification of this SWSP is made to the objecting parties to Weld County's pending Water Court application, Case No. 2009CW100. Proof of notice will be submitted to the State Engineer's Office separately once it is completed. CONCLUSIONS AND RECOMMENDATIONS • The maximum consumptive use for this well for the plan year will be 15.0 acre- feet. All pumping is considered 100 percent consumptive. • New Cache will provide fully consumable water to the depletion point at the intersection of Crow Creek and New Cache Ditch to adequately replace depletions associated with Dust Control Well #2. • Approval of this SWSP is requested through March 31, 2013. If you have any questions or need additional information, please do not hesitate to call. 0 Clear Water Solutions,Inc. Mr. Jeff Deatherage, P.E. 2012 SWSP Renewal for Dust Control Well#2 December 5, 2011 Page 5of5 Sincerely, Clear Water Solutions, Inc. n 1St al kitty1.4 Michelle L. Hatcher Water Resource Specialist Enclosures cc: Bruce Barker,Weld County Dave Bauer,Weld County Clay Kimmi, Weld County Brad Grasmick, Lawrence, Jones, Custer& Grasmick, LIP Dave Nettles, Division One Engineer Brent Schantz, District One Water Commissioner CWS File#07-170/Dust Control Well#2 ©Clear Water Solutions,Inc. x � FIGURES I. ' I ° r;, \ R62W " I' I _; t ,,� ,5 % _ If • I ! Ij•r r erZggs&&ie5 21 i 1 , I - 4 `,:r ,'Celli •.\ rr '1 it / t r -owes`t� I 7 , N `I�,i I rT`@+�, -, j. � . 'Yy%KG. ` \ /• r 1 ,•1 ,, `i 11 I I '.t � i:. i r. ,1i•4 r /c t • ` FI I -`a •HW1(,1�4l ` _ bM '`• •_ ''— . at w. II ijk I '' 1 .,�� [ t. 'q Ji `. 14 ') St fasten `� ) $' t fl f ' �, ail1'S I . u 4i I p / 2.ti. i :r flr1 i y •\ or Ilr a Il alaPl T' I I •`• M•, :BRIGGSDALE E` \v,s pR J a IV ^ I) ix .1 la ' `` •' )28..r'' e :p 'I ql p `. I ; j ) it It-• 5 s- i 1 It l I �, I I 1 :1.. 1 a; . , r`. \ -+— _ __ s p ' Legend le 0 600 1200 1 ,„%' t ® Dust Control Well#2 �'1'--I Feet I •y, 1 r' Data: 1-28-2009 4iltta Figure 1 Drawn By: MLH WELD COUNTY, COLORADO: 1"= 1,200 cicarWATERsolutions �,,�; VICINITY MAP Job No: 07-170 av'Was•pla,nlno•,ep!nearing11OFGs,bgYM-M1t[oJ qlD W>a9R • r ja 7:17-'•-,• I .1 • -,�. 01 0 •'O* . --;,-",----I•.. -7..:, .. •-.. ...•- •••••4-• fer CD • .; . 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ID L.�...t•. 1 •1, si TABLES • Table 1 Weld County Dust Control Well#2 Dust < Steady State Lagged Month Control Well#2 Stream Pumping Schedule Depletions (ac-ft)= (ac-ft) (A) _ (g) Apr 1.50 126 May 2.00 1.26 Jun. 2.50 1.25 Jul 2.50 1.24 Aug 2.50 1.23 Sep 1.50 1.23 Oct 1.00 1.23 Nov 0.75 1.24 Dec 0.00 1.25 Jan 0.00 126 Feb 0.00 1.27 Mar 0.75 1.27 Total 15.0 15.0 (A)Projected pumping from Weld County Dust Control Well#2,assumed 100%consumptive (B) Lagged stream depletions from infinite aquifer model with parameters: Pumping Well to River=88,885 ft Transmissivity=1,000 gpd per ft Storage Coefficient=0.0002 ,'hr„trWA [Rsu6Y:ia.'I:: tb Clear Water Solutions,Inc. Table 2 Weld County Dust Control Well#2 Lagged Replacements Net Month Stream from New River Depletions Cache Balance, Apr-12 126 126 0.0 May-12 1.26 1.26 0.0 Jun-12 1.25 1.25 0.0 Jul 12 1.24 1.24 0.0 Aug-12 123 1.23 0.0 Sep-12 1.23 1.23 0.0 Oct-12 123 1.23 0.0 Nov-12 . 124 1.24 0.0 Dec-12 1.25 1.25 0.0 Jan-13 1.26 1.26 0.0 Feb 13 1.27 127 0.0 Mar-13 1.27 1.27 0.0 Total 15.0 15.0 0.0 :1y:aWAT[Rs....twwn © Clear Water Solutions,Inc. APPENDIX A New Cache Ditch Company Agreement WATER EXCHANGE AGREEMENT .� sti THIS WATER EXCHANGE AGREEMENT ("Agreement") is entered into day of , 2009, by and between the Lower Poudre Augmentation Company ("Compa "), the New Cache La Poudre Irrigating Company and Weld County, Colorado ("County"), a body corporate and public(collectively the Parties"). RECITALS A. Company owns or has the legal right to use water and water rights that can be directly delivered to Crow Creek, a tributary of the South Platte River, or delivered to recharge facilities that the Company owns or has the right to use that can generate recharge credits that accrue to Crow Creek (herein the water and recharge credits deliverable to Crow Creek shall be collectively referred to as the"Company Water). B. County has a need to replace depletions to Crow Creek caused by the pumping of a well located in the NW1/4 of the NW1/4, Section 28, Township 8 North, Range 62 West of the 6th P.M. at a distance of 900 feet from the west section line and 350 feet from the north section line ("Briggsdale C. County leases from the City of Greeley 300 acre feet per year of fully consumable water decreed for beneficial use(s) that include augmentation use and that is discharged to the Cache La Poudre River by the City of Greeley pursuant to a lease between the City of Greeley and County dated November 10, 2004 ("Lease Water"). Pursuant to paragraph 1.9 of the Greeley Lease, County has the right to assign its rights under the Greeley Lease with the written consent of the City of Greeley. D. Through this Exchange Agreement the Parties desire to exchange a portion of their water sources with one another, as more fully set forth herein. NOW THEREFORE, for and in consideration of the mutual covenants and agreements stated in the Recitals (which are incorporated herein) and as hereinafter set forth and the mutual benefits to the Parties to be derived here from, it is hereby agreed as follows: ARTICLE I FLAN OF EXCHANGE 1.1 The Exchange of Greeley Effluent Lease Water. (a) Source of the Lease Water. County hereby perpetually l eases and assigns to Company 30 acre-feet per year of the Greeley Effluent Lease Water. (b) Location for Delivery of the Greeley Effluent Lease Water: County agrees to provide the Greeley Effluent Lease Water immediately below the outfall 1 acc9-/7.4`4 • of Greeley's existing wastewater treatment plant located on the south bank of the lower Cache la Poudre River in the SW1/4 of the SW1/4 of Section 4, Township 5 North, Range 65 West of the 6th P.M. (c) Schedule for Delivery of the Greeley Effluent Lease Water: County agrees to provide the Greeley Effluent Lease Water pursuant to the schedule that Company provides. By November 1 of each calendar year following execution of this Agreement, the County shall provide the Company a 12-month schedule specifying the anticipated pumping requirements. By November 15 of each calendar year following execution of this Agreement, Company shall submit a 12- month schedule to County specifying the anticipated monthly Lease Water delivery requirements for the upcoming calendar year. In no event shall the schedule provide for delivery of more than 7.5 acre-feet in any one month without the express written approval of County. To the extent that specified.deliveries for any year total less than 30 acre-feet, County reserves the right to use the balance of the unrequested Greeley Effluent Lease Water for its own purposes during such year. County shall be responsible for providing water to Company in accordance with the 12-month schedule provided (d) Use of the Water. Company intends to use this water as a source of augmentation water in its plan for augmentation currently pending before the District Court, Water Division No. 1 ("Water Court") in Case No. 04CW025 ("LPAC Plan"). To this end, upon execution of this Agreement, Company intends to amend its pending application in Case No. 04CW025 to include the Lease Water as a source of water in the LPAC Plan. County shall be responsible for obtaining any necessary permission or consent from Greeley for Company to use the Greeley Effluent Leased Water as contemplated. 1.2 The Exchanoe of the Company Water. (a) Source of the Company Water Company hereby perpetually leases and assigns to County up to 15 acre-feet per year of Company Water limited to a maximum of up to 7.5 acre-feet per month. (b) Location for Delivery of Company Water. Company agrees to provide Company Water either directly or via recharge accretions to Crow Creek. For water delivered directly to Crow Creek, water shall be delivered at the point where the New Cache La Poudre Irrigating Company (a/k/a No. 2 Canal) crosses Crow Creek in the SW1/4 of the NW1/4 of Section 16, Township 6 North, Range 63 West of the 6th P.M. For water delivered by alluvial recharge, the water must accrue to Crow Creek at a point above or upstream of the most upstream water right that must be satisfied to prevent injury as a result of the pumping of the Briggsdale Well. (c) Schedule for Delivery of Company Water: Company agrees to provide Company Water pursuant to the schedule County provides. By 2 November 1 of each calendar year (January 1 through December 31) following execution of this Agreement, County shall submit a 12-month schedule to Company specifying the monthly replacement requirements for the upcoming calendar year. In no event shall the schedule provide for delivery of more than 7.5 acre-feet in any one month without the express written approval of Company. To the extent that specified deliveries for any calendar year total less than 15 acre-feet, Company reserves the right to use the balance of the unrequested Company Water for its own purposes during such calendar year. Company shall be responsible for providing water to County in accordance with the 12-month schedule provided but the Parties shall endeavor to be flexible and accommodate modifications requested by the other party when possible. (d) Use of the Water. County shall use Company Water for augmentation and replacement purposes only. Company Water Is not currently legally useable as an augmentation supply for the Briggsdale Well or other County purposes. County is responsible for making Company Water legally suitable for its intended purposes. This is likely to necessitate that Company Water be named as a source of supply in an augmentation plan filed by County. County agrees that Company may file opposition in any such case filed by County for the purposes of assuring that the terms and conditions of this Agreement are maintained and Company's water rights are protected. 1.3 County's Obligation to Deliver Lease Water. County's obligation to deliver Lease Water under this Agreement is perpetual. In the event County is unable In any given year to provide Greeley Effluent Lease Water as contemplated in paragraph 1.1.c. above, Company's obligation to deliver Company Water pursuant to the schedule contemplated in paragraph 1.2.c. above, shall likewise cease. 1.4 Responsibilities of Parties for Implementing the Exchange. The Parties agree to communicate and coordinate all operational activities necessary to effectuate the intent of this Agreement including: (a) The maintenance of the necessary accounting to operate this Agreement, both water accounting and financial accounting. (b) The installation and improvement of structures contemplated in the Agreement. In particular, County agrees to pay the New Cache La Poudre Irrigating Company $7500.00 to assist with the installation of a measuring structure to allow the measurement of water delivered directly to Crow Creek. 1.5 Company's Obligation to Deliver Company Water. Company's obligation to deliver Company Water under this Agreement is perpetual. Company anticipates having ample water supplies available each year to supply Company Water. In the unlikely event that that Company projects that it will not have sufficient water supplies in any given year to provide to County the Company Water that year, Company shall notify County of the same and use its best effort to obtain additional supplies to meet said 3 obligations. Company may, however, in the event that despite said efforts factor beyond the reasonable control prevents or delays the Company ability to obtain and/or deliver Company Water, limit or curtail delivery of Company Water. In the event that Company is unable in any given year to provide Company Water as contemplated in paragraph 1.1.c., above, County's obligation to deliver Greeley Effluent Lease Water pursuant to the schedule contemplated in paragraph 1.2.c., above, shall likewise cease. ARTICLE II REPRESENTATIONS AND WARRANTIES OF COUNTY As an inducement to enter into this Agreement and to consummate the transactions contemplated hereby, and to obtain the reliance of Company, County represents and warrants to Company as follows: 2.1 Adequacy of Greeley Effluent Lease Water. County warrants that the Greeley Effluent Lease Water will be fully consumable water decreed for beneficial use(s) including augmentation use. 2.2 Organization. County is a Colorado body corporate and public. 2.3 Authorization; Enforceability. The execution, delivery and performance of this Agreement by County and all other agreements to be executed, delivered and performed by County pursuant to this Agreement (collectively, the "County Exchange Documents") and the consummation by County of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of County. This Agreement and the County Exchange Documents have been duly executed and delivered by County and constitute the legal, valid and binding obligation of County, enforceable in accordance with their respective terms, except to the extent that their enforcement is limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights generally and by general principles of equity. 2.4 No Violation or Conflict. The execution and delivery of this Agreement (I) does not, and the consummation of the transactions contemplated by this Agreement in accordance with the terms hereof will not, violate any provision of Colorado State Law and (ii) will not result in the breach of any term or provision of, or constitute an event of default under, any material indenture, mortgage, deed of trust, or other material contract, agreement, or instrument to which County is party or to which any of their properties or operations are subject, other than instruments or agreements as to which consent shall have been obtained at or prior to the Closing. 2.5 Party is a Governmental Entity. This Agreement is entered into pursuant to sections 29-1-201 through 203, C.R.S. County is a political subdivision of the State of Colorado within the meaning of section 29-1-202(2), C.R.S., and therefore is a government within the meaning of section 29-1-202(1). A 2.6 Appropriation of Funds by County. Any and all financial obligations of County under this Agreement are expressly subject to appropriation of funds by the Board of County Commissioners. In the event funds are not appropriated in whole or in part sufficient for performance of County's obligations under this Agreement, or appropriated funds may not be expended due to County spending limitations, then all rights and obligations of County under this Agreement shall terminate, and County shall thereafter have no liability for compensation or damages to Company. County shall notify Company as soon as reasonably practicable in the event of non-appropriation or in the event a spending limitation becomes applicable. 2.7 Absence of Certain Changes or Events. As of the date of execution of this Agreement, County has not made or permitted any amendment or termination of its Greeley Lease. 2.8 Title and Related Matters. County has a valid leasehold interest in the Lease Water. 2.9 Litiaation and Proceedings. Regarding County's lease of Lease Water, there are no actions, suits, proceedings, or investigations pending or, to the knowledge of County, threatened in writing by or against County, or affecting County, at law or in equity, before any court or other governmental agency or instrumentality, domestic or foreign, or before any arbitrator of any kind. 2.10 Contracts. (a) Attached hereto as Exhibit 1 is County's November 10, 2004, lease with the City of Greeley, Colorado, regarding the Greeley Effluent Lease Water (the "Lease"); (b) the Lease is valid and enforceable by County in all respects; (c) to its knowledge, County is not in default in any material respect under the terms of the Lease. 2.11 Compliance With Laws and Regulations. To its knowledge, County: (i) has complied with all applicable statutes and regulations, and (ii) is not in any default on its part with respect to the Lease and has no knowledge of any circumstances which, after reasonable investigation, would result in the discovery of such a default. 2.12 Approval of Agreement. County's Board of County Commissioners has authorized the execution and delivery of this Agreement by County and has approved this Agreement and the transactions contemplated hereby. 5 ARTICLE Ill REPRESENTATIONS AND WARRANTIES OF COMPANY As an inducement to, and to obtain the reliance of County, Company represents and warrants to County as follows: 3.1 Company Water is Fully Consumable. Company warrants that the Company Water is or will be delivered as fully consumable water decreed for beneficial use including augmentation as that phrase is interpreted by Colorado law. 3.2 Organization. Company is a nonprofit Corporation that owns, manages, operates and/or has the right to recharge credits and recharge facilities that generate credits to Crow Creek. Company owns, will own or will have to legal right to use, 100% of the Company Water. Company has the power and is duly authorized, qualified, franchised, and licensed under all applicable laws, regulations, ordinances, and orders of public authorities to own all of its properties and assets and to carry on its business in all material respects as it is now being conducted. 3.3 Authorization: Enforceability. The execution, delivery and performance of this Agreement by Company and the Exchange Documents to be executed, delivered and performed by Company pursuant to this Agreement and the consummation by Company of the transactions contemplated hereby and thereby, have been duly authorized by all requisite action on the part of Company. This Agreement and the Company Exchange Documents have been duly executed and delivered by Company and constitute the legal, valid and binding obligation of Company, enforceable in accordance with their respective terms, except to the extent that their enforcement is limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors'rights generally and by general principles of equity. 3.4 Consents of Governmental Authorities and Others. Except as otherwise stated herein, to the knowledge of Company, no consent, approval," order or authorization of, or registration, declaration, qualification or filing with any federal, state or local governmental or regulatory authority, or any other person, is required to be made by Company in connection with the execution, delivery or performance of this Agreement by Company or the consummation by Company of the transactions contemplated hereby, excluding the execution, delivery and performance of this Agreement by County. 3.5 Compliance With Laws and Regulations. To its knowledge, Company: () has complied with all applicable statutes and regulations, and (ii) is not in any default on Its part with respect to the decreed Company Water and has no knowledge of any circumstances which, after reasonable investigation, would result in the discovery of such a default. 3.6 Approval of Agreement. The undersigned is an agent for Company and is duly authorized to sign this Agreement and bind the Company. 6 ARTICLE IV MISCELLANEOUS 4.1 Governing Law. Venue. This Agreement and its application shall be construed in accordance with the laws of the State of Colorado. The Parties agree that venue for any litigated dispute regarding this Agreement shall be the District Court in and for Weld County Colorado, unless any such issues are water matters as defined by C.R.S. § 37-92-203, for which the Parties agree that jurisdiction and venue for any litigated disputes shall be in the District Court, Water Division No, 1. 4.2 Headings for Convenience Only. Paragraph headings and titles contained herein are intended for convenience and reference of the Parties only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement. 4.3 Notices. Any notice required or permitted to be given hereunder shall be in writing and shall be deemed given when delivered personally or sent by certified or registered mail, return receipt requested, postage prepaid, addressed as follows: If to County, to: Board of County Commissioners 915 10th Street, P.O. Box 758 Greeley, Colorado 80632 With a copy to: County Attorney 915 10th Street, P.O. Box 758 Greeley, Colorado 80632 If to Company: Lower Poudre Augmentation Company POBox 104 Lucerne, Colorado 80646 The Parties may change the foregoing contacts or addresses by written notice to the other Parties. 4.4 Assignment of Exchange Rights: The Parties may not assign their rights or delegate their duties hereunder without the prior written consent of the other Parties. The Parties may not sublease their rights under this Agreement without the prior written consent of the other Parties. However, to the extent that the waters leased herein generate excess credits in the Parties` augmentation plans, said credits may be disposed of in accordance with the terms and conditions of said plans. 4.5 Entire Agreement: Incorporation. This Agreement represents the entire agreement of the Parties, and supersedes any other prior agreements and understandings of any type, both written and oral, among the Parties with respect to the 7 • subject matter hereof. 4.6 Multiple Originals. This Agreement may be executed in any number of counterparts, each of which shall be deemed original, and all of which constitute one and the same agreement. 4.7 Waiver or Breach. No waiver or breach of any of the provisions of this Agreement by any of the Parties shall constitute a continuing waiver of any subsequent breach by said party, whether of the same or any other provision of this Agreement. 4.8 Definitions and interpretations. Except as otherwise provided herein, nouns, pronouns and variations thereof shall be deemed to refer to the singular or plural, and masculine or feminine, as the context may require. Any reference to a policy, procedure, law, regulation, rule or document shall mean such policy, procedure, law, regulation, rule or document as it may be amended from time to time. 4.9 Non-Severability and Effect of Invalidity. Each paragraph of this Agreement is interdependent with the others and is not severable unless by mutual consent of the Parties. 4.10 Joint Draft. The Parties agree they drafted this Agreement jointly with each having the advice of legal counsel and an opportunity to contribute to its content. Therefore, this Agreement shall not be construed for or against any party on the basis of authorship. 4.11 Intent of Agreement. This Agreement is intended to describe the rights and responsibilities of and between the Parties and is not intended to, and shall not be deemed to, confer rights upon or to benefit any persons or entities not signatories hereto, nor to limit, impair, or enlarge in any way the powers, regulatory authority, or responsibilities of any party or any other governmental entity not a party hereto, 4.12 Specific Performance Available. In the event of litigation, mediation, arbitration or other dispute resolution process concerning this Agreement, the remedy of specific performance will be available to the Parties. 4.13 Complete Agreement. This Agreement represents the complete agreement of the Parties and no oral modification shall be recognized. Any amendments or additions shall be made in writing signed by the Parties. 4.14 Force Maieure. The Parties shall not be considered to be in default in performance of any obligation hereunder, nor liable for damages therefor, for such periods of time that failure of performance shall be due to uncontrollable forces. The term "uncontrollable forces" means any cause beyond the control of the Party affected, including, but not limited to, embargoes, epidemics, major failure of facilities, flood, earthquake, stork, fire, volcanic action, nuclear accident, terrorist acts, war, riot, civil disturbance, labor disturbance, work stoppages, sabotage, and restraint by court order s or public authority clothed with authority to regulate matters pertaining to water, public health or pollution control which, by exercise of due foresight, such Party could not reasonably have been expected to avoid and which, by exercise of due diligence, it shall be unable to overcome. None of the Parties, however, shall be relieved of liability for failure of performance if such failure were due to causes arising from its own negligence or causes, which it fails to remove or remedy with reasonable dispatch. 4.15 Default. If any Party fails or refuses to perform according to the terms of this Agreement, such Party may be declared in default. Such declaration of default must be made in writing. If a Party has been declared in default of this Agreement, such defaulting Party shall be allowed a period of 60 days within which to cure the default. If the default remains uncorrected, the Party declaring the default may elect to: (a) terminate this Agreement and seek damages; (b) treat this Agreement as continuing and seek specific performance; or(c)pursue any other remedy at law or equity. 4.16 Costs of Company. County agrees to reimburse Company for Company's actual costs and expenses, including attorney's fees, in negotiating this Agreement. 4.17 Third Party Beneficiaries. This contract is solely between the Parties and, except as specifically provided, no director, officer, stockholder, member, employee, agent, independent contractor, or any other person or entity shall be deemed to be a third party beneficiary of this Agreement. 4.18 Recording. Any Party may record this Agreement in the office of the Clerk and Recorder of Weld County, Colorado, and may disclose and utilize this Agreement in any Water Court proceeding. 4.19 Bindina Agreement. This Agreement binds and benefits the Parties and their respective survivors, heirs, successors, and assigns. 4.20 Indemnification of Company. County shall indemnify and hold the Company, its successors, assigns, directors, and shareholders, harmless from any and all losses, damages and expenses, including attorneys'fees arising in connection with the exercise by County of its rights pursuant to this Agreement, including, but not limited to, any personal injuries, deaths, property damage, mechanic's liens or other claims and causes of action of any kind arising out of County's use of the water, except to the extent caused by the negligence or intentional misconduct of the Company or its shareholders, employees or directors. Further, the County shall indemnify and hold the Company, its successors, assigns, directors and shareholders, harmless from any claims, causes of action, losses, damages and expenses, including attorneys'fees, related to a curtailment of the pumping of County's wells because of the Company's inability to provide Company Water to the County due to factors beyond the reasonable control of the Company that prevent or delay the Company's ability to obtain and/or deliver the Company Water to the County, except to the extent caused by the negligence or intentional misconduct of the Company or its shareholders, employees or directors. 9 4.21 Indemnification of County. Company shall indemnify and hold the County, its successors, assigns, directors, and shareholders, harmless from any and all losses, damages and expenses, including attorneys'fees arising in connection with the exercise by Company of its rights pursuant to this Agreement, including, but not limited to, any personal injuries, deaths, property damage, mechanic's liens or other claims and causes of action of any kind arising out of Company's use of the water, except to the extent caused by the negligence or intentional misconduct of the County or its shareholders, employees or directors. Further,the Company shall indemnify and hold the County, its successors, assigns, directors and shareholders, harmless from any claims, causes of action, losses, damages and expenses, including attorneys'fees, related to a curtailment of the pumping of Company's wells because of the County's Inability to provide Greeley Effluent Lease Water to the Company due to factors beyond the reasonable control of the County that prevent or delay the County's ability to obtain and/or deliver the Greeley Effluent Lease Water to the Company, except to the extent caused by the negligence or intentional misconduct of the County or its shareholders, employees or directors. ARTICLE V TERMINATION 5.1 Termination. (a) The term of this Agreement shall be perpetual. (b) However, in the event that any of the Parties wishes to terminate this Agreement, that Party may do so by providing the other party written notice of its intent to terminate. Such notice of intent shall be deemed effective after ninety (90) days have elapsed after it was given, at which point this Agreement shall terminate after all Parties have completed performance on the then operative delivery schedules described in paragraphs 1.1.c and 1.2.c, above. 10 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective officers, hereunto duly authorized, as of the date first above-written. COUNTY OF By 611 2.Cam- f K f - 73 William . Garcia, Chair ATTEST: <�r�;J, JUL 2 9 2009 (Seal) r Itgl • ,// Deputy Clerk/to ethe N LOWER LA POUDRE AUGMENTATION COMPANY 8 ��©` ATTEST: pva.,...............r NEW CACHE IA POUDRE IRRIGATING COMPANY ATTEST: B y/`t"7,:.S. ,-yii—sr-i- (seal) 11 .. _ _! _ APPENDIX B City of Greeley Lease Hof � • Greeley rado Great.From the Ground Up. July 14,2009 Weld County Board of County Commissioners 91510a'Street PO Box 758 Greeley,CO 80632 Dear Commissioners, The Weld County Public Works Department informed the City of Greeley("Greeley")of its intent to enter into a water exchange agreement ("Agreement") with the Lower Poudre Augmentation Company ("Lower Poudre") and the New Cache La Poudre Irrigating Company ("New Cacbe")(collectively, the "Companies") to augment depletions associated with Weld County's Briggsdale well, located in the NW1/4 of the NW1/4, Section 28, Township 8 North, Range 62 West,6'a P.M. The Companies will provide augmentation water that they own or have the legal right to use from recharge facilities or by direct release into Crow Creek in exchange for fully consumable water that Greeley leases to Weld County pursuant to a lease dated November 10, 2004 ("Greeley Lease'"attached). Greeley leases up to 300 acre-feet of fully consumable water each calendar year to pmvide augmentation for any lawful use of water by Weld County, subject to the conditions listed in Paragraph 1.7 and 1.10 of the Greeley Lease. Pursuant to Paragraph 1.9 of the Greeley Lease,`neither party may assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party...." This letter constitutes Greeley's written consent to Weld County's water exchange with the Companies so long as Weld County continues to need the Companies' water to augment its Briggsdale well and subject to the following conditions: 1) Pursuant to Paragraph 1.5 of the Greeley Lease, Greeley shall make available to Weld County, each calendar year, fully consumable water immediately below Greeley's raiding wastewater treatment plant outfall located on the lower Cache la Poudre River or at such other point or points on which Weld County and Greeley mutually agree in writing. Any request to Greeley for a change in the point of delivery shall be made by Weld County. 2) Pursuant to Paragraph 1.6 of the Greeley Lease, by December 1 of each calendar year, Weld County shall submit a 12-month schedule to Greeley specifying anticipated monthly water delivery requirements for the following calendar year. "In no event shall the schedule provide for delivery of more than 75 acre-feet in any one month without the express written approval of Greeley." This letter does not constitute written approval by Greeley for delivery of more than 75 acre-feet in any one month. Water sad Sewer Department • 110010th Street,Suite 300,Greeks CO 80631 • (970)350-98O Fax(970)350-9805 We promise to preserve and improve the quality of life for Greeley through timelN courteous and cost-effective service. Page 2 of 2 3) Greeley's obligation to deliver fully consumable water may be curtailed wider the circumstances listed in Paragraph 1.8 of the Greeley Lease. 4) Greeley understands that Weld County will be filing an application in Water Court to augment the depletions from the Briggsdale We1L Pursuant to Paragraph 1.11 of the Greeley Lease,Greeley may file a Statement of Opposition in such case and participate in legal proceedings regarding the augmentation plan, as Greeley in its sole discretion deans necessary. 5) Greeley is currently an objector in Case No. 04CW25. Greeley retains all rights to participate as an objector in the legal proceedings of Case No. 04CW25, in any way it deems necessary,to prevent injury to Creeley's water rights 6) Pursuant to Paragraph 5.1(b) of the Agreement either Weld County, Lower Poudre or New Cache can terminate the Agreement by providing the other parties written notice of its intent to terminate If such written notice is given by any of these parties, Weld County shall also provide written notice to Greeley. 7) If the County ceases to use or pump the Briggsdale well on a permanent basis,Greeley's written consent contained in this letter shall be withdrawn. Weld County shall provide written notice to Greeley of this change of operations as soon as possible. 8) Weld County, Lower Poudre, and New Cache shall be responsible for ensuring the administration of Greeley's lease water less any transmission losses charged by State water officials below the delivery point. In addition, it is Weld County, Lower Poudre, and New Cache's responsibility to receive necessary approval to use Greeley's leased fully consumable water in their augmentation plans. 9) Pursuant to Paragraph 1.18 of the Greeley Lease,the terms and conditions of the Greeley Lease, and all rights of action relating thereto, am strictly reserved to Greeley and Weld County,and nothing in the Greeley Lease shall give or allow any claim or right or cause of action whatsoever by any other person not included in the Greeley Lease. Please call with any questions. Sincerely, J. G. onson Direr 'r,Water and Sewer Department cc; Bruce Barker,County Attorney Josh McMahon,Burns Figa and Will,P.C. Lee Miller,Burns Figa and Will,P.C. Sean T.Cronin,Water Resources Manager Wirer and Sewer Department • 1100 10th street,suite 300,Greeley;CO 80631 • (970)350-9811 Fa:(970)350-9805 We promise to preserve and improve the quality of file for Greeley through timely,courteous and cat-effective service. iilllillmlaulwitll�liiiiul 84884 WOW= 32:11P Weld Conti,CO �Il • 1 et SR 0.00 0 0.00 iiWO Memo MIN*&11u10 t _ PERPETUAL LEASE OF FULLY CONSUMABLE WATER This Agreement is entered into this /tI "day of Lverniato—x2004 by and between the City of Greeley,Colorado,a Colorado municipal corporation("Greeley"or the"YSty")and Weld County,Colorado,a body corporate and public("County")(collectively,the"Parties"). RECTAi S • 1) The City owns certain water that pumuantto the water laws ofthe State of Colorado, may be fully consumed through use or re-use("Fully Consumable Water"). 2) County requires augmentation water in order to build,operate,and maintain public roads and to operate gravel,send,and aggregate operations to support such roads,and to irrigate landscaping on County-maintained properties. 3) County wishes to lease from Cheeky The perpetual right to use a portion ofthe City's Fully Consumable Water. 4) Greeley is willing to lease County the perpetual right to use a portion of its Fully • Consumable Water pursuant to certain terms sod conditions set forth in this Agreement. AGREEMENT AND LEASE FOR GOOD AND VALUABLE CONSIDERATION, the adequacy of which is hereby acknowledged,and info ther consideration ofthe mutual covenants and agreements set forth below, the Parties agree as follows: 1.1 ).ease of Aumnentation Water. Greeley hereby leases to County the right to perpetual delivery of Fully Consumable Water(Le.,water delivered as described in Paragraph 1.5, below, under water rights that are owned by or available to Greeley, and that are fully decreed and usable for augmentation purposes under Colorado water law)In an amount up to 300 acre-feet("AF")per calendar year(as calculated and based upon the yield of that water as decreed for augmentation purposes)(the"Water"). County shall use the Water to satisfy augmentation demands associated with the public f notions identified herein. 1.2 Tam of Lease. The term of ibis lease shall be perpetual. 13 Payment. In consideration of the perpetual right to annually receive and use the Water, County shall pay the City SIX THOUSAND AND 00/1001HS DOILARS($6,000.00)per AF for a total of ONE MILLION EIGHT HUNDRED THOUSAND AND 00/100THS DOLLARS($1,800,000.00). County shall pay to Greeley the firll$1,800,000.00 within 30 days of the execution of this Agreement. I�IA�I�NI�IIIN�I�IlI�I�lIII . w 12114004 CO t et n o ;Mwe lm M i kWeld ' Raster 1.4 Annual Delivery Fee. In addition to ike payment required by Paragraph 13,above,County shall pay an annual delivery fee of SIXTY-FIVE AND 00/100THS DOLLARS($65.00)per AF in 2004 dollars Sr each AF that Greeley delivers annually pursuant to this Agreement teeleyshalladjustthisdeliveryfeeatmually(beguningwithdeliveriesinthe2006 calendar year) in accordance with the increase in the Consumer Price Index C'CM') for the Denver/Boulder area,using the CPI level on September 1,2004 as the basis for comparison. However,the annual delivery fee shall never be less than$65.00 per AF. In the event that the CPI is no longer calculated for the Denver/Boulder area,the Parties will mutually agree on an appropriate measure of inflation. County shall pay the annual delivery fee within 30 days of billing by the City. Failure to timely pay the annual delivery fee shall result in the suspension of deliveries under this Agreement. 1.5 Qelivery of Water. Greeley shall make available to County during each calendar year a fine yield of 300AF of Fully Consumable Water leased hereunder immediately below Greeley's existing wastewater treatment plant outfall located on the lower Cache la Poudm River,or at such other point or points on which the Parties mutually agree in wailing. Subject to the provisions of Paragraph 1.8, below,Greeley shall make the Water available regardless of whether aparticularyearis wet,average,or dry interms of precipitation or water availability. County shall be responsible for ensuring the administration of the Water less any transmission losses charged by State water officials below the delivery point(s). Greeley's obligation to deliver the Water shall commence upon the latter of(a)Greeley's receipt of payment hereunder from County; or(b) approval by the State Engineer of a temporary substitute supply plan submitted by the County utilizing the Water for augmentation pmpe 1.6 Water Delivery Schedule and Administration. By December 1 of each calendar year following execution of this Agreement,County shall submit a 12-month schedule to Greeley specifying anticipated monthly Water delivery requirements for the following calendar year. Alternatively, County may submit an initial 12-month schedule specifying the monthly delivery amounts of the Water that will remain in effect from year-to-year,unless County modifies such schedule on or before December 1 for the following calendar year. In no event shall the schedule provide for delivery of more than 75 AF in any one month without the express written approval of Creaky. To the extent that specified deliveries for any calendar year total loss than 300 AF,Greeley reserves the right to use the balance of the unrequested Water for its own purposes during such calendar year. 1.7 JTassofthe Water. County shalt be entitled to use thó Water to provide augmeulation for any • lawtld use of water by the County. This includes by way of example and not limitation, irrigating landscaping on County-maintained properties,augmenting water consumed in building, operating, and maintaining public roads, and augmenting water consumed by evaporation associated with gravel, sand, and aggregate operations owned or leased by County. There shall be no limit as to point of use or the opportunity to store or exchange the Water so long as no violation of Paragraph 1.10 occurs,and the point of delivery by the City -2- 111111111111101111111111111111111111111 32 41334 11101/UOi 0t:11P I/ald Gaiogr,CO 3 MDR MURCIA DOA Stan Monne Drat&Recentat remains as set forth.in Paragraph 15,above. Notwithstanding the forgoing,such uses shall not include single family residential development such as domestic in-house uses or irrigation of residential lots. It shall be County's responsibility to amend its Augmentation Plan Decree described in Paragraph 1.11 of this Agreement,if and as required by law,at its sole cost to authorize any particular use. 1.8 Obligation to Deliver the Water. The City's obligation to deliver the Water under Ibis Agreement is perpetual,and may only be curtailed under the following circumstances: a. If,lathe City's sole discretion,it imposes mandatory city-wide wata userestrictions to address drought conditions, dam or pipeline failure, or other catastrophic circumstance limiting the City's ability to satisfy the indoor water usage needs of its citizens,the City may curtail daily deliveries to the County under this Agreement by anamouant consistent with such mandatory city-wide water userest ictions during the period of such restrictions. b. If an accident,act of war,natural catastrophe,fire,explosion,or other cause beyond the reasonable control of Greeley prevents or delays its ability to deliver the Water pursuant to this Agreement,the City may curtail delivery oftbe Water so long as,and to the extent that,delivery is prevented or delayed by such cause. 1.9 Assianmeat of Lease Riga. Neither party may assign cr delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party,which shall not be unreasonably withheld. However, Greeley shall have a first right of refusal over any assignment by County to a third party unrelated to County or its governmental functions. 1.10 Preservation of Citv's Decrees. County will not jeopardize the City's water rights decrees by taking any action that causes,or could potentially cane a reopening of any City decree. 1.11 County Augmentation Plan Case. The Parties intend that the Water provided by Greeley hereunder will be used under and incorporated into an augmentation plan for County,which will be filed in Water Court,Water Division No. 1. Greeley shall not object to or oppose County's inclusion and use of the Water in County's application to obtain Water Court approval of its Augmentation Plan Decree. Notwithstanding.Greeley may file a Statement of Opposition in such case,and may otherwise participate in legal proceedings regarding such Plan if it adversely affects Greeley's water rights,as Greeley in its sole discretion deems necessary. Greeley shall cooperate with and provide reasonable assistance and information to County,based on Greeley's status as the lessor of the Water,to enable County to obtain Water Court approval of its Augmentation Plan Decree. 1.12 jam.Any notice required hereunder shall be sufficiently given and shall be deemed given when hand delivered, or after the lapse of five (5) business days following mailing by certified mail-return receipt requested to the following addresses: -3- III IH I 1111111111 3I42334 UMW:4104 0111P Weld Ora 00 • 1 of 6 R 0.00 DON lire Mutate flak&l For the City of Greeley: Director,Water and Sewer Department City of Greeley 1100 10th Street,3rd Floor Greeley,Colorado 80631 with a copy to: City Attorney City of Greeley 1100101 Street,Suite 401 Greeley,Colorado 80631 For County: Board of County Commissioners 91510" Street,P.O.Box 758 Greeley,Colorado 80632 with a copy to: County Attorney 91510'"Street,P.O.Box 758 Greeley,Colorado 80632 Either party may change the foregoing contacts or addresses by written notice to the other Ply 1.13 Wegi If either party fails or refines to perform according to the terms of this Agreement, . such party may be declared in default Such declaration of default must be made in writing. If a party has been declared in default of this Agreement, such defaulting party shall be allowed a period of 60 days within which to cure the default If the default remains unconvicted,the party declaring the default may elect to:(a)terabit the Agreement and seek damages;(b)treat the Agreement as continuing and seek specific performance;or(c) pursue any other remedy at law or equity. 1.14 ( . In addition to the remedies available in Patagraph 1.13,above,if the default of any of the provisions of this Agreement by either party require the party not in default to commence legal action ng '—t the defaulting party,the defaulting party shall be liable to the non-defaulting party for the costs incurred because of the default, including reasonable attorney's fees. 1.15 Goventina Law:Venue. This Agreement shall be governed and enforced according to the laws of the State of Colorado. Venue for any action regarding this Agreement shall be in the District Court for Weld County,Colorado. 1.16 Recording. Either party may record this Agreement in the office of the Clerk and Recorder -4- l ' ' ii' mini • 3242384 8 R 0'2/01/2804 till) Molarhi t� of Weld County,Colorado,and may disclose and utilize this Ag eement in any Water Court proceeding to obtain County's Augmentation Plan Decree and related matters. 1.17 cagerms. The Parties may execute this Agreement in counterparts,each of which(or combination of which),when signed by both Parties shall be deemed an original,but both together shall constitute one agreement. 1.18 No Third Party Enforct, egt. The tams and conditions of this Agreement,and all rights of action relating ther to,arestrictlyreservedtotheParties,andnothinginthisAgreementshall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement Any person and/or entity, other than the Parties, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. 1.19 Effect of Invalidity. The Parties intend for this Agreement to establish Comity's perpetual right to use the Water. Should a Court of competent jurisdiction determine that such right may not be conveyed,the Parties intend that this Agreement be intapseted as a 99-year lease, which will renew automatically at the end of its term unless,at least one calendar year prior to its expiration,either party gives a notice of breach and the breaching party fails to cure within 60 days of such notice. 1.20 FAS. A waiver of a breach of any provision of this Agreement shall not waive any subsequent breach of the same or different provision of this Agreement. 1.21 ItAgneernent. This Agreement binds and benefits the Parties and their respective survivors,heirs,successors,and assigns. N WITNESS WHEREOF;the Parties have executed this Perpetual Lease Of Fully Consumable Water on the date first written BOARD OF COUNTY � `� ata�.� 1►� S ir COMMISSIONERS FOR THE COUNTY CLERK TO THE BOARD OF WELD,STATE OF COLD ' as J , 0 EPUTYCLa KTOTHE •�?� By Robert D.Maslen,Chao NOV 10 2004 WELD COUNTY DEPARTMENT OF WORKS ' - Hempen,Director _$_ yet s3 BtRt884 12rown04 02:11P Wild CaS.CO 1 of 8 R 8.88 D O A BYw Borne Clwk&SconOr to • Br .Barker,Weld County Attorney CITY OF GREELEY.COLORADO By: Harold G.Evans,Chairman Thomas E.Solders,Mayor Greeley Water and Sewer Board ek APPROVED ' .` AS TO UB ANCE:A2 * AL Wiest.City and Secretary to Water c: 4 ?Yr 1 ` and Sewer • APPROVED AS TO AVAILABILITY RECOMMENDED: OF FUNDS: By of Water and Sewer APPROVED AS TO LEGAL FORM: Br� " By: � City Attorney's Office S alan torWrioirsApitessiAWS1 ConietarpLei raic..e -6- RESOLUTION RE: APPROVE PERPETUAL LEASE OF FULLY CONSUMABLE WATER AND AUTHORIZE CHAIR TO SIGN-CRY OF GREELEY WHEREAS;the Board of County Commissioners of Weld County,Colorado,pursuant to Colorado statute and the Weld County Home Rule Charter, Is vested with the authority of administering the affairs of Weld County,Colorado,and WHEREAS,the Board has been presented with a Perpetual Lease of Fully Consumable Water between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,and the City of Greeley,with fuller terms and conditions being as stated in said lease,and WHEREAS,after review, the Board deems it advisable to approve said lease,a copy of which is attached hereto and incorporated herein by reference. NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of Weld County,Colorado,that the Perpetual Lease of Fully Consumable Water between the County of Weld,State of Colorado,by and through the Board of Count/Commissioners of Weld County.and the City of Greeley be,and hereby is,approved. BE IT FURTHER RESOLVED by the Board that the Chair be,end hereby is,authorized to sign said lease. The above and foregoing Resolutonwas,on motIon duly made and seconded,adopted by the following vote on the 10th day of November.A.D.,2004. teas BOARD OF COUNTY COMMISSIONERS• COLORADO \,! rt D. Masden,Chair rk to the Board William H.Je ro-Tern Deputy perk • the Board M.t A AST • ' DL: fl ' A ey Date of signature: 2004-3253 BC0034 APPENDIX C Summary Accounting Sheet MONTHLY SUMMARY Weld County-Dust Control 42 Well Permit 68771-F black text= actual data Case No: 2009CW100 blue text= projected data• WDID: 110448 Division: 1 District: 1 Steady-State Adjusted Replacements Volume Stream Stream froth Neer Rivet Month Pumped depletions Depletions Cache Balance (ac--It) (ac ft) (ac-ft) (ae-ft) . (ac-ft} Apr-12 1.50. .1.26 L26 1.26 ! ?' 0.0D May-12 2.00 1.26 1.26 1.26 0.00 Jun-12 2:50 1.25 1.25 1.25 '?, 0.0D Jul-12 • 2.50 1.24 - 1.24 1.24' '.........:•.:•:::::•1..;.:..:.•1100:•. .:::..:i--.•:, Aug-12 2.50 1.23 . 1,23. ' 1.23 0.00 Sep-12 1.50 123 113 1.23 0.0D • Oct-12 • 1.00 1.23 1.23 1.23 0.00 Nov-12 0`79 1.24 l:: 1.24" 1.24 '- 0.00 Dec-12 0.00 3.25 1.25 1.25 0.00 Jan-13 D.00 1.26 < 1.26 1.26 ` 0,00 Feb-13 0.00 :.....:::::::::.::::.127-...::::.::::::::::.: 1.27 1.27 ' 0.00 Mar-13 0:79 1.27 1.27 1.27 7.:::.::::.:::....:,..,:::..V.00....::::::.:::::...:..::: Notes: (A)Dally prorated pumping for month,from"Pumping Information"worksheet (8)Daily prorated stream depletion for month,from"Stream Depletions"worksheet (C)Stream depletions adjusted for river call (D)Total amount of replacement water from New Cache lease agreement. Replacements are zero for days of free river (E)Column(D)-Column(C) CERTIFICATE OF SERVICE The undersigned hereby certifies that on December 22, 2011 true and correct copies of the Request for Renewal of the Substitute Water Supply Plan for 2012-2013 and supporting documents were served upon the following via the United States mail, postage prepaid, or were notified of the posting of the Request for Renewal of the Substitute Water Supply Plan at ftp://Ijcglaw.com. Mr. Jeff Deatherage State Engineer 1313 Sherman Street, Room 818 Denver, Colorado 80203 Objectors in Case No. 09CW100: DIVISION ENGINEER Division Water Engineer, Privately Retained Water Engineer,Division 1 Engineer Division I Attorney FARMERS RESERVOIR AND IRRIGATION Opposer Dischinger,Joseph B Privately Returned Fairfield&Woods PC COMPANY Attomey NORTHERN COLORADO WATER Opposer Trout,Robert Vernal Privately Retained Trout Raley Montano Witwer Be CONSERVANCY DIST Attorney Freeman PC NORTHERN COLORADO WATER Opposer Raley, Bennett Privately Retained Trout Raley Montano Witwer& CONSERVANCY DIST Attorney Freeman PC NORTHERN COLORADO WATER Opposer Sinor,Douglas M Privately Retained Trout Raley Montano Witwer& CONSERVANCY DIST Attorney Freeman PC State Water Engineer, Privately Retained s Office State STATE ENGINEER State neer Colorado Attorney THE BOARD OF COUNTY Applicant Grasmick Esq,Bradley Privately Retained Lawrence Jones Custer& COMMISSIONERS OF THE C Attorney Grasmick LLP Digitally signed by Beth Jiricek - Date:2011.12.22 10:47:07 07'00' Beth Jiricek Page 1 of 2 LexisNexis File & Serve Transaction Receipt Transaction ID: 41536201 Submitted by: Beth Jiricek, Lawrence Jones Custer&Grasmick LLP Authorized by: Bradley C Grasmick, Lawrence Jones Custer&Grasmick LLP Authorize and file on: Dec 22 2011 11:03AM MST Court: CO Weld County District Court 19th JD Division/Courtroom: 1 - Division 1 Case Class: Civil Water Case Type: Augmentation Case Number: 2009CW100 Case Name: In the interest of: THE BOARD OF COUNTY COMMISSIONERS OF THE Transaction Option: Serve Only - Public Billing Reference: Weld 100 Read Status for e-service: Not Purchased Documents List 2 Document(s) Attached Document, 2 Pages Document ID: 44924769 Document Type: Access: Statutory Fee: Linked: Letter Public $0.00 Document title: Letter to State re SWSP Renewal Request Attached Document, 2 Pages Document ID: 44924791 Document Type: Access: Statutory Fee: Linked: Letter Public $0.00 Document title: Notice re SWSP Renewal Request Expand All U Sending Parties (11 Party Party Type Attorney Firm Attorney Type THE BOARD OF COUNTY Grasmick, Lawrence Jones Custer& Privately Retained COMMISSIONERS OF THE Applicant Bradley C Grasmick LLP Attorney al Recipients (6) E Service List(61 Delivery Party Party Attorney Firm Attorney Method Option Type Type Privately Service DIVISION ENGINEER Division Water Engineer, Water Engineer, Retained E_ Engineer Division 1 Division 1 Service Attorney FARMERS RESERVOIR AND Dischinger, Privately E_ Service IRRIGATION COMPANY Opposer Joseph B Fairfield &Woods PC Retained Service Attorney NORTHERN COLORADO Trout, Robert Trout Raley Montano Privately E_ Service WATER CONSERVANCY Opposer Vernal Witwer&Freeman Retained Service DIST PC Attorney NORTHERN COLORADO Trout Raley Montano Privately E_ Service WATER CONSERVANCY Opposer Raley, Bennett W Witwer&Freeman Retained Service DIST PC Attorney NORTHERN COLORADO Trout Raley Montano Privately E_ Service WATER CONSERVANCY Opposer Sinor, Douglas M Witwer&Freeman Retained Service DIST PC Attorney https://w3.fi leandserve.lexi snexis.com/W ebServer/W ebPages/FileAndServe/prcReviewS... 12/22/2011 Page 2 of 2 State Water Privately State State Engineers E- Service STATE ENGINEER Engineer Engineer, Retained Office Service Colorado Attorney LI Additional Recipients (0) El Case Parties Close 41. 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