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Home My WebLink About20043253.tiff RESOLUTION RE: APPROVE PERPETUAL LEASE OF FULLY CONSUMABLE WATER AND AUTHORIZE CHAIR TO SIGN - CITY 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 further 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 County 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, and hereby is, authorized to sign said lease. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 10th day of November, A.D., 2004. BOARD OF COUNTY COMMISSIONERS ]E�,�`� W D COUNTY, COLORADO J 186! 4a9 fY/ Robert D. Masden, Chair lerk to the Board William H. Jerke ro-Tem Deputy Clerk to the Board M.�i�,eie AP V AS TO • David E. Lon ounty A ney Glenn Vaad Date of signature: 2004-3253 BC0034 3� PERPETUAL LEASE OF FULLY CONSUMABLE WATER 4thr- This Agreement is entered into this /0 day of Nvre....,4,4.c...0.2004 by and between the City of Greeley,Colorado,a Colorado municipal corporation("Greeley"or the"City")and Weld County, Colorado, a body corporate and public ("County") (collectively, the "Parties"). RECITALS 1) The City owns certain water that,pursuant to the water laws of the 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,sand,and aggregate operations to support such roads,and to irrigate landscaping on County-maintained properties. 3) County wishes to lease from Greeley the perpetual right to use a portion of the 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 and conditions set forth in this Agreement. AGREEMENT AND LEASE FOR GOOD AND VALUABLE CONSIDERATION, the adequacy of which is hereby acknowledged,and in further consideration of the mutual covenants and agreements set forth below, the Parties agree as follows: 1.1 Lease of Augmentation 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 functions identified herein. 1.2 Term of Lease. The term of this lease shall be perpetual. 1.3 Payment. In consideration of the perpetual right to annually receive and use the Water, County shall pay the City SIX THOUSAND AND 00/100THS DOLLARS ($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 full$1,800,000.00 within 30 days of the execution of this Agreement. � I11111EMI �III11111111111111111III11111111111 3242334 12/08/2004 02:11P Weld County, CO 1 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 1.4 Annual Delivery Fee. In addition to the payment required by Paragraph 1.3, above, County shall pay an annual delivery fee of SIXTY-FIVE AND 00/100THS DOLLARS($65.00)per AF in 2004 dollars for each AF that Greeley delivers annually pursuant to this Agreement. Greeley shall adjust this delivery fee annually(beginning with deliveries in the 2006 calendar year) in accordance with the increase in the Consumer Price Index ("CPI") 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 Delivery of Water. Greeley shall make available to County during each calendar year a firm yield of 300AF of Fully Consumable Water leased hereunder immediately below Greeley's existing wastewater treatment plant outfall located on the lower Cache la Poudre River, or at such other point or points on which the Parties mutually agree in writing. Subject to the provisions of Paragraph 1.8, below, Greeley shall make the Water available regardless of whether a particular year is wet,average,or dry in terms 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 purposes. 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 Decemberl 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 Greeley. To the extent that specified deliveries for any calendar year total less 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 Uses of the Water. County shall be entitled to use the Water to provide augmentation for any lawful 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- 1111111111111111111111111111111111111111111111111111111 3242334 12/08/2004 02:11P Weld County, CO 2 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder • • remains as set forth in Paragraph 1.5, 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 this Agreement is perpetual, and may only be curtailed under the following circumstances: a. If,in the City's sole discretion,it imposes mandatory city-wide water use restrictions 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 an amount consistent with such mandatory city-wide water use restrictions 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 of the Water so long as,and to the extent that, delivery is prevented or delayed by such cause. 1.9 Assignment of Lease Rights. 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,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 City's Decrees. County will not jeopardize the City's water rights decrees by taking any action that causes, or could potentially cause 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 Notices. 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: 111111 IIIII11111��I1111111111I1111111III11111 1111 11 3242334 12/08/2004 0211P Weld County, CO 3 of 6 R 0.00 D 0.00 Steve Moreno Clerk:Recorder • 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 1100 10`s Street, Suite 401 Greeley, Colorado 80631 For County: Board of County Commissioners 915 10th Street, P.O. Box 758 Greeley, Colorado 80632 with a copy to: County Attorney 915 10`" Street, P.O. Box 758 Greeley, Colorado 80632 Either party may change the foregoing contacts or addresses by written notice to the other party. 1.13 Default. If either 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 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 Costs. In addition to the remedies available in Paragraph 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 against 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 Governing 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- 1111111111111111IIii I111111III1111111III Ent 3242334 12108/2004 02:11P Weld County, CO 4 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder of Weld County,Colorado,and may disclose and utilize this Agreement in any Water Court proceeding to obtain County's Augmentation Plan Decree and related matters. 1.17 Counterparts. 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 Enforcement. The terms and conditions of this Agreement,and all rights of action relating thereto,are strictly reserved to the Parties,and nothing in this Agreement shall 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 County'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 interpreted 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 Waiver. 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 Binding Agreement. This Agreement binds and benefits the Parties and their respective survivors, heirs, successors, and assigns. IN WITNESS WHEREOF, the Parties have executed this Perpetual Lease Of Fully Consumable Water on the date first written. .. BOARD OF COUNTY ,`► l ,� COMMISSIONERS FOR THE l a U, ;: 'c ,� OF WELD, STATE OF COLO i f _` ' ,Ve '_ �� LD COUNTY CLERK T TH BQC Atr og. By: It , i uLO N , D DUTY CLER TO THE BOAR Robert D. Masden, Chair NOV 1 "i s WELD COUNTY DEPARTMENT OF PUB ORKS Fr Hempen, Director 11111111111111111 IIII 1111111 III 11111111 III 11111 IIII IIII 3242334 12/08/2004 02:11P Weld County, CO 5 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder e1O</-3 x.53 2liL e T. Barker, Weld County Attorney CITY OF GREELEY, COLORADO By: "I C` rA d/ W'`�'li By: C lu'vrL.ccc—CT c.C kl-ei`—____ Harold G. Evans, Chairman omas E. Selders, Mayor Greeley Water and Sewer Board ₹ po R G APPROVED 1* mil' O S *% AS TO S BST NCE: d* * sE 7 `%� *�i - %r'a'LOS-4-41 8 r� �, By:Leonard Wiest, City Manager -t f5.1___al and Secretary to Water y t� �'rk and Sewer .-.a.�.... APPROVED AS TO AVAILABILITY RECOMMENDED: OF FUNDS: B By: Director of finance Dire or si Water and Sewer APPROVED AS TO LEGAL FORM: By: VO.L a . feluvr By: City Attorney's Office S\CAVOhn Kolanz\Various Agreements\weld County perpetual Water Lease wpd 1 111111 1111 1111 III 1111111 II 11111111 II III II II 3242334 12/08/2004 02:11P Weld County, CO 6 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder CITY OF GREELEY, COLORADO RESOLUTION NO. 71 , 2004 A RESOLUTION OF THE GREELEY CITY COUNCIL AUTHORIZING THE MAYOR TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT TO PERPETUALLY LEASE THREE HUNDRED (300) ACRE-FEET OF FULLY CONSUMABLE WATER TO WELD COUNTY, COLORADO. WHEREAS, Greeley owns certain water that, pursuant to the water laws of the State of Colorado, may be fully consumed through use or re-use ("Fully Consumable Water"); and WHEREAS, Weld County requires augmentation water in order to build, operate, and maintain public roads, and to operate gravel, sand, and aggregate operations to support such roads, and to irrigate landscaping on County-maintained properties; and WHEREAS, Weld County wishes to lease from Greeley the perpetual right to use three hundred (300) acre-feet of the City's Fully Consumable Water. WHEREAS, Greeley's Water Master Plan recommends leasing the City's Fully Consumable Water to help fund diversification of Greeley's water portfolio, and to help maximize the efficiency of the City's current water supplies; and WHEREAS, Greeley and Weld County have negotiated an Intergovernmental Agreement for the Perpetual Lease of Fully Consumable Water ("IGA"), a draft of which is attached as Exhibit A and incorporated herein by reference; and WHEREAS, at its October 20, 2004 meeting, the Greeley Water and Sewer Board approved the IGA and recommended that the Greeley City Council execute the IGA with certain changes reflected in Exhibit A; and WHEREAS, entering into the IGA with Weld County serves the best interests of the City of Greeley. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GREELEY, COLORADO: 1. The Mayor is authorized to execute the IGA for the Perpetual Lease of Fully Consumable Water to Weld County(attached as Exhibit A). 2,O,7aResolution shall become effective immediately after its passage, as provided by th reele)p.Caty1rter. PTED, SIGNED AND APPROVED THIS 2nd DAY o I;I * y:9,✓' * SE �+AL � ST \ THE CITY OF GREELEY, COLORADO AV id ni 7 By: fCGe• Yvc -u yh �� ity Cle"+rj — Mayor City of Greeley July 14, 2009 Weld County Board of County Commissioners 915 10`h 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 Cache")(collectively, the "Companies") to augment depletions associated with Weld County's Briggsdale well, located in the NWI/4 of the NW1/4, Section 28, Township 8 North, Range 62 West, 6`h 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 provide 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 existing 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. ,�� ,e1,/vt 7-rl A6C1 F-4 ,J.L%D3 Water and Sewer Department • 1100 10th Street,Suite 300,Greeley,CO 80631 • (970)350-9811 Fax(970)350-9805 We promise to preserve and improve the quality of life for Greeley through timely,courteous and cost-effective service. Page 2 of 2 3) Greeley's obligation to deliver fully consumable water may be curtailed under 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 Well. 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 deems 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 Greeley'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, are 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. Monson Direr or, 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 Water and Sewer Department . 1100 10th Street,Suite 300,Greeley,CO 80631 • (970)350-9811 Fax(970)350-9805 We promise to preserve and improve the quality of life for Greeley through timely,courteous and cost-effective service. 11111111111111111!III DIEM III 11111111 III11111 !III !III 3242334 12/0812004 02:11P Weld County, CO 1 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder PERPETUAL LEASE OF FULLY CONSUMABLE WATER This Agreement is entered into this "/' day of a/ .....-5-2004 by and between the City of Greeley,Colorado,a Colorado municipal corporation("Greeley"or the"City")and Weld County, Colorado, a body corporate and public ("County") (collectively, the "Parties"). RECITALS 1) The City owns certain water that,pursuant to the water laws of the 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,sand,and aggregate operations to support such roads,and to irrigate landscaping on County-maintained properties. 3) County wishes to lease from Greeley the perpetual right to use a portion of the 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 and conditions set forth in this Agreement. AGREEMENT AND LEASE FOR GOOD AND VALUABLE CONSIDERATION, the adequacy of which is hereby acknowledged,and in further consideration of the mutual covenants and agreements set forth below, the Parties agree as follows: 1.1 Lease of Augmentation Water. Greeley hereby leases to County the right to perpetual delivery of Fully Consumable Water (i.e., 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 functions identified herein. 1.2 Term of Lease. The term of this lease shall be perpetual. 1.3 Payment. In consideration of the perpetual right to annually receive and use the Water, County shall pay the City SIX THOUSAND AND 00/100THS DOLLARS ($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 full $1,800,000.00 within 30 days of the execution of this Agreement. Antit6151 E ��y-3, 11111111111111111 HMO III MINIM MUM VIII 3242334 12/08/2004 02:11P Weld County, CO 2 of 6 R 0.00 D 0.00 Steve Moreno Cleric 8 Recorder 1.4 Annual Delivery Fee. In addition to the payment required by Paragraph 1.3,above, County shall pay an annual delivery fee of SIXTY-FIVE AND 00/100THS DOLLARS($65.00)per AF in 2004 dollars for each AF that Greeley delivers annually pursuant to this Agreement. Greeley shall adjust this delivery fee annually(beginning with deliveries in the 2006 calendar year) in accordance with the increase in the Consumer Price Index ("CPI") 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 Delivery of Water. Greeley shall make available to County during each calendar year a firm yield of 300AF of Fully Consumable Water leased hereunder immediately below Greeley's existing wastewater treatment plant outfall located on the lower Cache la Poudre River, or at such other point or points on which the Parties mutually agree in writing. Subject to the provisions of Paragraph 1.8, below, Greeley shall make the Water available regardless of whether a particular year is wet,average,or dry in terms 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 purposes. 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 Decemberl 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 Greeley. To the extent that specified deliveries for any calendar year total less 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 Uses of the Water. County shall be entitled to use the Water to provide augmentation for any lawful 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- • 11111111111111111 INDIUM 111111II MIN !III !III 3242334 12108/2004 02:11P Weld County, CO 3 of 6 R 0.00 D 0.00 Steve Moreno Clark& Recorder remains as set forth in Paragraph 1.5, 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 this Agreement is perpetual, and may only be curtailed under the following circumstances: a. If,in the City's sole discretion,it imposes mandatory city-wide water use restrictions 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 an amount consistent with such mandatory city-wide water use restrictions 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 of the Water so long as,and to the extent that, delivery is prevented or delayed by such cause. 1.9 Assignment of Lease Rights. 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,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 City's Decrees. County will not jeopardize the City's water rights decrees by taking any action that causes, or could potentially cause 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 Notices. 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- 1111111111111111IN1111I III III! J) 1 II III3242334 121081204 enty, 00 4 of S R 0.00 D 0.00 Steve Moreno Clerk d Recorder 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 1100 10th Street, Suite 401 Greeley, Colorado 80631 For County: 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 Either party may change the foregoing contacts or addresses by written notice to the other party. 1.13 Default. If either 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 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 Costs. In addition to the remedies available in Paragraph 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 against 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 Governing 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- 3242334 12/08/2004 02:11P Weld County, CO 6 of 8 R 0.00 D 0.00 Steve Moreno Clerk a Recorder of Weld County,Colorado,and may disclose and utilize this Agreement in any Water Court proceeding to obtain County's Augmentation Plan Decree and related matters. 1.17 Counterparts. 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 Enforcement. The terms and conditions of this Agreement,and all rights of action relating thereto,arc strictly reserved to the Parties,and nothing in this Agreement shall 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 County'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 interpreted 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 Waiver. 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 Binding Agreement. This Agreement binds and benefits the Parties and their respective survivors, heirs, successors, and assigns. IN WITNESS WHEREOF, the Parties have executed this Perpetual Lease Of Fully Consumable Water on the date first written ab BOARD OF COUNTY � i Laujil COMMISSIONERS FOR THE CO '= T .'a; ray COUNTY CLERK TO THE BOARD OF WELD STATE OF COLORA I rbi � , ' VW? ..�.�( as ceira ! Ike* )a0�A scAEPUT L THE BLBy: & t' liY 11/N 7 Robert D. Masden, Chair NOV 10 2004 WELD COUNTY DEPARTMENT OF PU f WORKS ank Hempen, Director -5- 07er V-•S.a7.-`i,3 1111111111111111111111111111IIIHMI III 11111IIII 101 3242334 12108/2004 02:11P Weld County, CO 6 of 8 R 0.00 D 0.00 Steve Moreno Clerk& Recorder Apr toF Bru . Barker, Weld County Attorney CITY OF GREELEY,q�, COLORADO B�I,QBy: fu-wk ifz.�,✓i By: 7 •3: Harold G. Evans, Chairman Thomas E. Selders, Mayor Greeley Water and Sewer Board APPROVED a '�0 AS 'fO U ANCE: ,z) oo AL By:( (11" q ;r. Leo rd Wiest, City Manag r 174 and Secretary to Water icket and Sewer ��w, APPROVED AS TO AVAILABILITY RECOMMENDED: OF FUNDS: 21A — By: Director of ce ct r of Water and Sewer APPROVED AS TO LEGAL FORM: By- By: { Ni City Attorney's Office S:\CAUohn Kolane\Various Agrtemmt,\Wdd County Perpctual Wa Leasewpd -6- RESOLUTION RE: APPROVE PERPETUAL LEASE OF FULLY CONSUMABLE WATER AND AUTHORIZE CHAIR TO SIGN -CITY 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 further 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 County 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, and hereby is,authorized to sign said lease. The above and foregoing Resolution was,on motion duly made and seconded,adopted by the following vote on the 10th day of November, A.D., 2004. BOARD OF COUNTY COMMISSIONERS ]E',�®�` W D COUNTY, COLORADO & YikkD 'Ism (i 4s19 III Robert D. Masden, Chair o lerk to the Board 7 / Li '4 ,4-9ff � , / / William H. Jerke ro-Tem Deputy Clerk to the Board AP V AST • • • DaVd E. Lon ounty Aft ney Glenn Vaad Date of signature: / 6- v 2004-3253 BC0034 Hello