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Home My WebLink About20110662 Kim Ogle arm:Bruce Barker nt: Tuesday, February 01, 2011 3:28 PM o: Kim Ogle Subject: Craig Harrison Application Kim: With the two letters from Matt Machado and Fred Otis, Mr. Harrison has provided sufficient evidence to show adequate water for the application for change of zone to PUD. Bruce • • 2011-0662 1 Tom Parko om: Bruce Barker nt: Wednesday, January 26, 2011 9:22 AM o: Fred Otis; Tom Parko Cc: Kim Ogle; Harrison Craig (craig@harrisonresource.com) Subject: RE: Niobrara I think the letters (Matt's and your letter) are sufficient. The condition for approval should be for getting the original share for safekeeping in the Clerk's Office. Original Message From: Fred Otis [mailto:FLOtis@nocolegal.coml Sent: Wednesday, January 26, 2011 9:19 AM To: Tom Parko; Bruce Barker Cc: Kim Ogle; Harrison Craig (craiggharrisonresource.com) Subject: RE: Niobrara Tom, I called Cathy Mathis and she will call you to resolve the missing items. She thinks she submitted them a week ago, but if there is any doubt she will file them again today. She will call you. Bruce, sorry for the confusion, but I am still unclear on what is missing about the water. I thought the letter would be a condition of recording change of zone plat, but to remove all doubt, I signed scanned and emailed it back yesterday. Another copy of the signed letter is attached. What else is needed about water? ed L. Otis tis, Coan & Peters, LLC 1812 56th Avenue Greeley, CO 80634 Phone: 970/330-6700 Fax: 970/330-2969 flotis(anocolegal.com The information contained in this e-mail is privileged and confidential information, intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone at (970)330-6700 or reply by e-mail and delete or discard the message. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Otis, Coan & Peters, LLC. Original Message From: Tom Parko fmailto:tparko(a)co.weld.co.usl Sent: Wednesday, January 26, 2011 8:29 AM To: Fred Otis Subject: FW: Niobrara fired: 1 Please see comments below. Staff is meeting about this today at 1:00. If you have any questions please call or email me. Om Original Message From: Tom Parko Sent: Wednesday, January 26, 2011 8:25 AM To: Bruce Barker Subject: FW: Niobrara Original Message From: Kim Ogle Sent: Wednesday, January 26, 2011 5:55 AM To: Tom Parko Subject: Niobrara Tom The application for the Niobrara PUD is in my opinion incomplete. The following items are missing from the submitted documents. As you are aware, each packet is to have the same documents identified missing items as represented on the PUD Change of Zone Procedural Guide include: The Application signed by the applicant A certified copy of the surrounding property owners within 500 feet of the proposed development The 8.5 x 11 inch reduced copy of the Change of Zone Plat The Weld County Public Works Road Access Sheet The electronic mail from B Barker to F Otis describing the adequacy of water (The Water Agreement as our request was submitted, Tuesday evening, for augmentation purchases only) Evidence that there are no delinquent Taxes The Deed for the parcel under review The remaining balance application fee = Fifty (50) dollars •The plat submitted for the Change of Zone has a list of uses that were not previously reviewed at 2 the Sketch plan stage of the application. They have been noted on the mark-up copy • Thanks! Kim Ogle Weld County Planning Services - Greeley Office 1555 North 17th Avenue I Greeley CO 80631 I kogle(co.weld.co.us <mailto:kogleOco.weld.co.us> T: 970.356.4000 x 3549 I F: 970 304 6498 • 3 Trevor Jiricek *Om: Bruce Barker nt: Monday, January 24, 2011 10:43 AM : Fred Otis Cc: Harrison Craig (craig@harrisonresource.com); Trevor Jiricek; Kim Ogle; Don Taranto; Matthew Machado Subject: RE: Niobrara Energy Park/Craig Harrison Fred: Thanks. The language for Matt's letter is OK, with the elimination of the unnecessary words "will be." With these changes and the safekeeping of the one-half water share, I believe the requirement of providing adequate water has been assured. The application will be processed as a PUD and any referrals or inquiries to the State Water Engineer will be made in that context. Bruce. Original Message From: Fred Otis [mailto:FLOtis@nocolegal.com] Sent: Sunday, January 23, 2011 9:14 PM To: Bruce Barker Cc: Harrison Craig (craig@harrisonresource.com); Trevor Jiricek; Kim Ogle; Don Taranto; Matthew Machado Subject: RE: Niobrara Energy Park / Craig Harrison ffIluce, I have reviewed the changes you suggested and have accepted all of them. I also spoke with Craig Harrison and he has agreed to the letter as revised. A clean version of the letter is attached. I assume I will be required to sign this letter and submit the Certificate before the Change of Zone Plat is recorded. Can we change your suggested language in Matt's letter to: "I understand a portion of the water derived from one-half (1/2) share of Cache La Poudre Reservoir Company in the name of Niobrara Energy Park, LLC ( '1/2 share' ) will be is being held by the Clerk to the Board of Weld County Commissioners to assure that water will be available if an augmentation plan is required for the proposed wells." By the above alternative language, Matt isn't being asked to assure something for his client, only to set out the understanding that the water is being held by the Clerk to the Board. My understanding is that with the changes in my letter and the pending change in Matt's atter you have agreed that there is "adequate water" for purposes of moving forward with the ange of Zone portion of the PUD application. My further understanding is that this will be considered a PUD for purposes of referral to the State Water Engineer. Craig is willing to commit to 35 acre parcels, but you have indicated that that is not necessary at this 1 juncture, i.e., that we can make that determination at the time of final plan approval. But, we know if there are parcels that are less than 35 acre, which is not the intention of the applicant, commercial exempt wells will not be available. Accordingly, I assume that #2 andillO first three paragraphs of #3 of Kim's letter are satisfied. Please call me as soon as you can on Monday morning. We are trying to schedule a conference call for 8 A.M. with Kim since Craig will lose a number of days if we don't resolve all of the issues in Kim's letter on Monday. Fred Fred L. Otis Otis, Coan & Peters, LLC 1812 56th Avenue Greeley, CO 80634 Phone: 970/330-6700 Fax: 970/330-2969 flotis@nocolegal.com <mailto:flotis@nocolegal.com> • The information contained in this e-mail is privileged and confidential information, intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone at (970)330-6700 or reply by e-mail and delete or discard the message. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Otis, Coan & Peters, LLC. Original Message From: Bruce Barker [mailto:bbarker@co.weld.co.us] Sent: Friday, January 21, 2011 5:01 PM To: Fred Otis Cc: Harrison Craig (craig@harrisonresource.com); Trevor Jiricek; Kim Ogle Subject: RE: Niobrara Energy Park / Craig Harrison Fred: • 2 On Matt's letter, I want the first sentence of the first full paragraph on page 2 to read: "I understand a portion of the water derived from one-half (1/2) share of Cache La Poudre Reservoir Company in the name of Niobrara Energy Park, LLC ( '1/2 share' ) will be available if augmentation plan is required for the proposed wells." I have made changes to your letter as shown. With those changes, I will recommend to Kim Ogle that he may release his comment letter on the proposed PUD sketch plan. Bruce. Original Message From: Fred Otis [mailto:FLOtis@nocolegal.com] Sent: Friday, January 21, 2011 1:49 PM To: Bruce Barker Cc: Harrison Craig (craig@harrisonresource.com) Subject: Niobrara Energy Park / Craig Harrison • Bruce, attached is a revised letter from Matt Machado and a letter from me to the Clerk to the Board of Commissioners. I hope these letters are what we have discussed. If you have changes, please let me know. Please note that the share of Cache la Poudre Reservoir Company is in Craig Harrison's possession and can be quickly transferred into Niobrara Energy Park's name. My understanding from our conversation is that actual delivery to the Clerk to the Board will not be necessary until recording of the PUD Zoning Plat. That is acceptable to us. The above said, it is our understanding that Kim Ogle is holding a comment letter until you are satisfied with the adequacy of water issue. We would appreciate having the comment letter as quickly as possible so we can start addressing the issues that it may contain. As you know, there is some urgency in completing this project, so getting started soon will be much appreciated. • 3 •ed Fred L. Otis Otis, Coan & Peters, LLC 1812 56th Avenue Greeley, CO 80634 Phone: 970/330-6700 Fax: 970/330-2969 • flotis@nocolegal.com <mailto:flotis@nocolegal.com> The information contained in this e-mail is privileged and confidential information, intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone at (970)330-6700 or reply by e-mail and delete or discard the message. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Otis, Coan & Peters, LLC. • 4 Richard N. Lyons, II Lyons Gaddis Kahn S. Hall Eve I. Canfield Jeffrey J. Kahn Scott E. Holwick • John W. Gaddis A Professional Corporation (" Attorneys and Counselors Matthew Machado Bradley A. Hall Madoline Wallace-Gross Steven P.Jeffers Chad A. Kupper Anton V. Dworak Adele L. Reester Daniel F. Bernard Catherine A.Tallerico Senior Counsel January 24, 2011 Fred L. Otis, Esq. VIA E-MAIL:FLOtis©nocolegal.com Otis,Coan & Peters, LLC 2026 Caribou Drive, Suite 102 Fort Collins, Colorado 80525 Re: Niobrara Energy Park, LLC Dear Fred: This letter is to address alternatives for providing a water supply to the Niobrara Energy Park ("the Park") from wells to be completed in the alluvial aquifer. Niobrara Energy Park, LLC (NEPLLC) has already obtained from the Division of Water Resources four (4) exempt commercial well permits for • the Park, each associated with different quarter-quarter sections of the Park. If the Park is divided into 35 acre or greater lots, which division is not legally denominated as a "subdivision," then each lot should be entitled to exempt commercial well permits from the State Engineer. The State Engineer will not issue "exempt" well permits for lots in a "subdivision;" rather, the State Engineer will only issue well permits for wells in a subdivision if they are included in a plan for augmentation (i.e. non-exempt wells). "Subdivision" is defined by C.R.S. § 30-28401(10) and Weld County Code § 24-1-40, both of which expressly exclude divisions of land into lots of 35 acres or greater from the definition of "subdivision." Thus, if the Park is divided into lots greater than 35 acres as part of the PUD process, then legally it is simply a division of land but not a "subdivision." Assuming the PUD is not denominated as a subdivision by Weld County, the State Engineer has indicated that new permit applications for exempt commercial well permits for parcels greater than 35 acres should be approved in the same manner as the four previously-issued exempt well permits for the Park. If for some reason the State Engineer determines that exempt well permits cannot be issued for proposed wells in the Park, NEPLLC would still be able to construct wells to serve development in the Park by including them in a plan for augmentation. A plan for augmentation must be approved by the water court. Colorado water courts have approved hundreds, if not thousands, of plans for augmentation covering wells since the Legislature approved their use to replace well depletions in the Water Right Determination and Administration Act of 1969. However, it would take several years and be very expensive to obtain a plan for augmentation. In adjudicating a plan for augmentation, the water court would determine the timing, location and amount of depletions caused by pumping the wells, and approve the plan if it replaces those • 515 Kimbark Street • Second Floor • P.O. Box 978 • Longmont, CO 80502-0978 Phone: 303-776-9900 • Fax: 303-776-9100 • www.lgkhlaw.com Lyons Caddis Kahn & Hall • A Professional Corporation Cr-- Attorneys and Counselors Fred L. Otis, Esq. January 24, 2011 Page 2 depletions in a manner that avoids injury to senior water rights. The depletions would likely occur to Little Owl Creek, which confluences with Owl Creek,then Lone Tree Creek and then the South Platte River. If the augmented wells will be operated in a similar manner to nine exempt commercial wells (one for each of nine lots), then we can assume for each well one-third (1/3) of an acre foot of pumping with 10% indoor consumption and 90% return flow. This estimate might be high If the indoor commercial uses consume less water.This will result in a maximum depletion that might need to be replaced under a plan for augmentation from all nine wells of approximately 0.3 acre feet per year. The depletions should be relatively uniform throughout the year, so that the augmentation requirement would require a constant delivery of augmentation water of approximately 0.20 gallons per minute, although it may be possible to aggregate releases in a shorter duration at a higher rate with permission of the Water Commissioner. For constant release: ((0.3333 af/yr)/365)=0.0009132 af/day (0.0009132 af/day)/ 1.98 (af/day/cfs)= 0.000461 cfs 0.000461 cfs X 448 gpm/cfs=0.20 gpm I understand one-half (1/2) share of Cache La Poudre Reservoir Company in the name of Niobrara Energy Park, LLC ("1/2 share") is being held by the Clerk to the Board of Weld County Commissioners for use In an augmentation plan for the proposed wells if required by the State • Engineer. The share represents a pro rata portion of the water rights decreed to the Cache La Poudre Reservoir (a/k/a Timnath Reservoir). In order to use the V2 share for augmentation instead of the currently decreed irrigation use, the water court would also need to approve an application for change of use of the share as well as the plan tor augmentation. The Cache La Poudre Reservoir Company shares are included in a number of pending water court applications to allow use in plans for augmentation, including an application by the Cache La Poudre Reservoir Company to change 271.5 shares of the 3,000 outstanding shares in the Cache La Poudre Reservoir Company(Case No. 06CW295). I understand that a "ditch-wide" or "system-wide" analysis is being performed as part of this case. That analysis has determined the average yield of one share Is 3 acre feet. If correct, a 1 share would yield approximately 1.5 acre feet. The consumptive portion of the yield, which is the portion available for augmentation use, will depend on the historical use of the particular share. We are not aware of any historical use analysis for the subject 1/2 share, which analyses are normally performed by a water rights engineer. According to the system-wide analysis performed for Case No. 06CW295, the average consumptive use for all Cache La Poudre Reservoir Company shares is over 1.5 acre feet per share. In Case No. 08CW63, another pending water court case to change and use for augmentation Cache La Poudre Reservoir Company shares, the applicants estimate 2.0 acre feet per share of consumptive use for their 10 shares. Assuming the 1/s share yields 1.5 acre feet and the consumptive use is 50% per the system-wide average,then the 1/2 share would yield 0.75 acre feet of consumptive use. If 0.75 acre feet of consumptive use water were available from the 1/2 share, it would provide more than twice as much water as the augmentation requirement of 0.3 acre feet needed to replace the depletions from the 9 wells described above. At least some of the water likely would need to be delivered to augmentation ponds, which would then generate augmentation credits that accrue to • the South Platte River. I understand a number of recharge ponds have been and are being Lyons Gaddis Kahn a Hall A Professional Corporation C Attorneys and Counselors • Fred L. Otis, Esq. January 24, 2011 Page 3 constructed under the New Cache La Poudre Canal system. Some of the water might also be delivered through the New Cache La Poudre Canal (a/k/a Greeley No. 2 Canal) directly to Lone Tree Creek or the South Platte River, if facilities were in place and agreements were obtained from the Cache La Poudre Reservoir Company and the New Cache La Poudre Irrigating Company. Thus, theoretically there are a number of ways Cache La Poudre Irrigating Company shares could be used in a plan for augmentation for the proposed wells, subject to obtaining agreements to use the necessary facilities and approval by the water court. The preliminary estimates provided herein are intended for use only by the recipient of this letter named above, and not intended to be relied upon by third parties. We are not aware of any engineering studies of the yield of the 1/2 share owned by NEPLLC. The change of use, including the yield and consumptive use, and plan for augmentation can only be approved by the water court. Accordingly, the estimates of yield, consumptive use and ability to use the shares in a plan for augmentation for the proposed wells are not guaranteed, and may vary significantly after engineering analyses and water court. Please contact me with any questions. Sincerely, • LYONS GADDIS KAHN & HALL, PC Byet(tzutC 0 „Aa Ma hew Machado mmachado@Igkhlaw.com cc: Craig Harrison (VIA E-MAIL:cralg@harrisonresource.com) S OTIS, COAX & PETERS, LLC Attorneys and Counselors at Law Fred L.Otis Brett Payton G.Brent Coen GREELEY FORT COLLINS Daniel W.Jones Jennifer Lynn Peters 1812 56'a Avenue 2026 Caribou Drive,Suite 102 Charles M.Shoop Greeley,Colorado 80634 Fort Collins,Colorado 80525 Michael C.Payne Telephone(970)330-6700 Telephone(970)225-6700 Of Counsel David K.Stubbs Facsimile(970)330-2969 Facsimile(970)232-9927 Michael D.Stewart Sara K.Stieben Shannon D.Lyons Jenna Seigel www.nocolegal.com • PLEASE REPLY TO GREELEY OFFICE: FRED L.OTIS flotis@nocolegal.com • January 23, 2011 Clerk to the Board Weld County Commissioners 915 10th Street P.O. Box 758 Greeley, CO 80632 • RE: Application# for P.U.D.,Niobrara Energy Park, LLC Dear Mr. Clerk to the Board: Attached is Certificate# for % share of the capital stock in the Cache la Poudre Reservoir Company in the name of Niobrara Energy Park,LLC ("Share Certificate")to be held in for safekeeping by the Weld County Clerk to the Board. This Certificate# is tendered to you to hold in conjunction with the referenced application to provide adequate water for the project in the event that augmentation of the wells on the property is necessary. It is our understanding that the applicant will continue to own and be able to utilize the annual use of the water, even while not in possession of Certificate# . It is the applicants understanding that the Certificate# will be held by Weld County until the earlier of the following scenarios, as determined by the Board of County Commissioners of Weld County: (a) That augmentation of the wells to be used to supply water in the Niobrara Energy Park is not required, because the State Water Engineer has issued commercial exempt wells for each of the parcels that require water, or (b) That augmentation of wells is not required, because no water is needed for the lots or alternative water has been provided, or (c) That the purposes of holding Certificate# have been satisfied. • Page 2 Clerk to the Board of Weld County Commissioners • January 23, 2011 It is our understanding that upon presentation of an alternate certificate of water that satisfies that augmentation possibility in the same fashion as Certificate# , then Certificate may be substituted for the alternate certificate. Sincer Fred L. Otis Attorney for Applicant CC: Craig Harrison for Niobrara Energy Park, LLC • • • GA'i'EWAY FARMS, LIT January 21 , 21)11 Mr. Dale Trowbridge The Cache la Poudre Reservoir Company 33040 Railroad Avenue Lucerne. Colorado 80646 Dear Dale. Enclosed, please find original stock certificate No. 3935 representing one (1) share of the capital stock in The Cache la Poudre Reservoir Company together with a "Stock Assignment" whereby Gateway Farms, Ll_P assigns one-half(!%z) interest in said stock to Niobrara Energy Park LLC. Our check for S200.00 is enclosed for the transfer fee for two certificates. Please send the Niobrara Energy Park I.I.C certificate to our attorney at the following address: • Mr. Fred Otis Otis. Coan 8. Peters. LLC 1812 56th Avenue Greeley. CO 80634 Please return the Gateway Certificate to the following address: Gatewa Farms. LLP 2725 Rocky Mountain Avenue. Suite 400 Loveland. CO 80538 f'hank you for your assistance. Sincerely. Craig }Harrison Cl I:lk Enclosure • • STOCK ASSIGNMENT (The Cache la Poudre Reservoir Company - 1/2 share) FOR VALUE RECEIVED, GATEWAY FARMS, LLP, a Colorado Limited Liability Partnership, the undersigned, hereby sells, assigns and transfers one-half (1�2) share of the capital stock of The Cache la Poudre Reservoir Company unto NI.OBRAR_A ENERGY PARK LLC and which stock is standing in the name of the undersigned on the books and records of the Cache la Poudre Reservoir Company represented by Certificate No. 3935, and does hereby irrevocably constitute and appoint the Managing Partner of the Partnership as attorney-in-fact to transfer the said stock on the books of the Partnership with full power of substitution in the premises. DATED: January 21 , 2011 GATEWAY FARMS, LLP, a Colorado Limited Liability Partnership B:r : Craig Harrison, Marging Partner STATE OF COLORADO 1 55. COUNTY OF LAKIMER } The foregoing instrument was acknowledged me before this � ��•' day of a-° L t , 2011, by Craig Harrison as Managing Partner of GATEWAY FARMS, LLP, a Colorado limited liability partnership. WITNESS my hand and official seal . My commission expires : 1 D cQ ( 1 1161b.aLt Notary Publi • 1 f I 111444 25". om. • o• U ‘46,-..- - CF O , « O O r+ ".a v O O W 13 a ro r." L.. 5 ``j�, q co o o fr a or, oi ! C cl) = SS J O ft. O C R ti �' t�-+ fL 7 C X Q + L.- TE U' Z N w C Lll O N ( ,tt L1 119F O ccrGCL T ` O ..OO ( 1 F.to, " iJ v C o _ ,e o ..--'= Oa U � x _ ,PP: LIJ c v: c O O Wu)A +r �� u�i a CC ° w 7 `4- a) of p. W X �C W 0 I W C0 .. O a N i " � N a c Cn tQi -1 W o O 1, 3 N � W n qi S O 0 o 0 , ti Q ? c p o 1 D a E a J c *' cOo � ° Ii+� • w c .- 0 ¢ o �y aim .. `.. `€ F N D rte. p� Q'��- O O L .. C`. d O lO _ N O N -O Na Z' -� .. z d v: <OC N Y O U a tc in Q w V O CLU. - O y +^.. W - _ � � F W Ja L Q Q O ._'1 O N / \ I Q' cn + N W LOP i'' • o. ft- F K) n v (� J + tt4C ., M 1.• z...... t U jd ' t 4I0S 4 try,rIT ..fj i 4 ? �� +.. s + +� mil} i ? � 1 . ."",,r it, '. �i^1 ''� �' E sue .1 '" 5015 NIOBRARA ENERGY PARK LLC PH ,i-::•6•2••:1!../: FIRST NATIONAL BANK • 2725 ROCKY►AT'�r'J=.srEJ.f 1.21;2011 LOVELY?.D COo PAY TO THE' The Cache la Po.:dre Reservoir Company $"200 00 ORDER OF. Two Hundred and 00/100 ----..-UO LI+RS The Cache la Poudre Reservoir Company 33040 Railroad Avenue PO Box 104 r Lucerne, Colorado 80546 -�� — '_• ME P.4O AU'HOAk D NIOBRARA ENERGY PARK LLC 50 Tne Cache la Poudre Reservoir Company 1/2112011 Transfer of Gateway Farms 112 share to Rawah Res 200 00 • FNB 43030752 200.00 NIOBRARA ENERGY PARK LLC 501 The Cache :a Poudre Reservoir Company 1/21/2011 Transfer of Gateway Farms 1/2 share to Rawah Res 200.00 FNB 43030752 200.0C loewx[cam 833.328-C33s r,,.-.,le.kxe'orr-s.x-r Hello