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Home My WebLink About20232587.tiffRESOLUTION RE: APPROVE AGREEMENT FOR SALE AND PURCHASE OF WETLAND MITIGATION CREDITS FOR BIG THOMPSON CONFLUENCE MITIGATION BANK FOR BRIDGE 53/58A REPLACEMENT PROJECT, AND AUTHORIZE CHAIR TO SIGN - WESTERVELT ECOLOGICAL SERVICES, LLC 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 an Agreement for Sale and Purchase of Wetland Mitigation Credits for the Big Thompson Confluence Mitigation Bank for Bridge 53/58A Replacement Project (USACE File #NWO-2016-00852-DEN) between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Works, and Westervelt Ecological Services, LLC, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, 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 Agreement for Sale and Purchase of Wetland Mitigation Credits for the Big Thompson Confluence Mitigation Bank for Bridge 53/58A Replacement Project (USACE File #NWO-2016-00852-DEN) between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Works, and Westervelt Ecological Services, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 6th day of September, A.D., 2023. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: ,Vsgediov, ♦EL; Weld County Clerk to the Board Date of signature: Qat/I2/23 cc'. P'J (cKIER/Glove) D°I /IT/23 Mikg E eman, Chair 2023-2587 EG0081 Conkack- 1, -184 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: Wetland Bank for Impacts to Wetlands at Bridge 53-58A DEPARTMENT: Public Works — Engineering Division PERSON REQUESTING: Clay Kimmi, Don Dunker, Curtis Hall DATE: August 14, 2023 Brief description of the problem/issue: When the bridge over the South Platte River was constructed in 2018/2019, the Army Corps of Engineers (ACOE) determined that 0.09 acres of wetlands would be temporarily impacted. As a result of the impacts, the ACOE made us replace the impacted wetlands onsite as part of the final reclamation. The ACOE permit required the new wetlands to be monitored for a minimum of 5 years The wetlands were planted and were successfully regenerated from 2019 through the spring runoff in June of 2023. An inspection by the ACOE in July of 2023 found that the runoff had obliterated the wetlands that we were trying to reestablish. The ACOE gave the County the option to either replant the wetlands again and start the monitoring over or we could purchase 0.09 ac of wetlands in an approved wetland bank. What options exist for the Board? 1. The Board can put the agreement to buy into an approved wetland bank on the agenda for consideration at an upcoming hearing. 2. The Board can direct Public Works to replant and start monitoring the wetlands again. 3. The Board can ask for a work session to obtain more information prior to putting the agreement on the agenda for an upcoming hearing. Consequences: The ACOE will not release the Nationwide permit that the County has on the project without purchasing wetlands in a bank or successfully replanting and monitoring the wetlands for a minimum of five years. The bridge and ROW are no longer owned and maintained by Weld County. The town of Kersey has annexed the ROW and bridge. The Nationwide permit was held by Weld County because there is no mechanism to transfer the permit to Kersey. If the wetlands are replanted and monitoring is restarted, the County runs the risk of the wetlands being damaged in future runoff events. If the wetlands are damaged during the monitoring period, the County will have to continue to try and reestablish the wetlands. If the wetlands are purchased from a wetland bank, the ACOE will release the Nationwide permit and the responsibility for ensuring the continued success of the wetlands will become the owner of the wetland bank. Impacts: If the ACOE doesn't release the Nationwide permit, the County will have to continue monitoring wetlands on a project that is no longer under Weld County's jurisdiction until such time as the wetlands have been successfully reclaimed. Costs (Current Fiscal Year / Ongoing or Subsequent Fiscal Years): It would cost approximately $15,000 to reestablish the 0.09 acres of wetlands plus another $1,500 per year until the ACOE releases the Nationwide permit. Monitoring would continue for a minimum of 5 years and possibly longer. The minimum cost would be $22,500. It would cost $22,500 to purchase the wetlands in a wetland bank. Once the wetlands are purchased, the ACOE would release the Nationwide permit and no further costs would be incurred. The County would no longer be responsible for the wetlands that are not within our jurisdiction. 2023-2587 9/k) EC 001 Public Works has the money in the 2023 budget to cover the cost of buying into a wetland bank or replanting the wetlands. Recommendation: Public Works recommends option 1 which is to put the wetland purchase agreement on the BOCC agenda for an upcoming hearing. Support Recommendation Schedule Place on BOCC Agenda Work Session Other/Comments: Perry L. Buck, Pro-Tem Mike Freeman, Chair Scott K. James Kevin D. Ross Lori Saine (z? MEMORANDUM TO: Esther Gesick, CTB DATE: August 22, 2023 FROM: Clay Kimmi, P.E., Public Works SUBJECT: Wetland Bank for Impacts to Wetlands at Bridge 53- 58A Please place the attached Agreement for Sale of Mitigation Credits Big Thompson Confluence Mitigation Bank on the BOCC agenda. The agreement is for the purchase of 0.09 ac of wetlands in the Big Thompson Confluence Mitigation Bank for wetlands that were adversely impacted by the construction of Bridge 53- 58A. The OnBase Contract ID is 7343. The agreement was reviewed by the BOCC in a pass around that was returned on August 16, 2023. A work session was held on August 21, 2023 to address the questions that Commissioner Saine had on the agreement. The work session ended with all 5 commissioners agreeing to allow the agreement to be placed on their agenda for consideration at an upcoming hearing. The agreement states the cost to purchase the wetland mitigation credits for an amount not to exceed $22,500.00. Public Works has included the wetland mitigation costs in its 2023 budget. I will attend the BOCC meeting to answer any questions the BOCC may have. Page I of 1 M,Aetive Projects\WCR 6 and WCR 13 intersection \Design\Work Session Requests\United Power Intersection Lighting\Bridge 53-58A Wetland Mitigation Purchase Memo to CTB OS-27-23.docx AGREEMENT FOR SALE AND PURCHASE OF MITIGATION CREDITS BIG THOMPSON CONFLUENCE MITIGATION BANK USACE File No. NWO-2016-00852-DEN This Agreement ("Agreement") is entered into this (D day of Septennber,, 2023, by and between WESTERVELT ECOLOGICAL SERVICES, LLC, a Delaware limited liability company, located at 1400 Jack Warner Parkway NE, Tuscaloosa, Alabama 35404 ("Bank Owner") and WELD COUNTY, COLORADO, located at 1150 O Street Greeley, CO 80631 ("Project Applicant"), jointly referred to as the ("Parties,") as follows: RECITALS A. The Bank Owner has developed the Big Thompson Confluence Mitigation Bank ("Bank") located in Weld County, Colorado; and B. The Bank was approved by the US Army Corps of Engineers ("USACE") on November 8., 2019, and is currently in good standing with this agency; and C. The Bank has received approval from the USACE to offer Wetland Mitigation Credits (the "Wetland Mitigation Credits" of which is sometimes referred to herein as a "Mitigation Credit") for sale as compensation for the loss of wetland function through the Front Range Mitigation Banking Instrument (Bank Agreement); and D. Project Applicant is seeking to implement the project described in Exhibit "A" attached hereto ("Project"), which would unavoidably and adversely impact wetland resources, and seeks to compensate for the loss of wetlands by purchasing Mitigation Credits from the Bank; and E. Project Applicant has been authorized by the USACE Permit No. NWO-2017-02260-DEN, to purchase from the Bank 0.09 Wetland Mitigation Credits upon confirmation by the Bank Owner of Mitigation Credit availability/adequate balance of Mitigation Credits remaining for sale; and F. The minimum Mitigation Credit unit for purchase at the Bank is no less than one -hundredth of a credit; and G. Project Applicant desires to purchase from the Bank and the Bank desires to sell to Project Applicant 0.09 Wetland Mitigation Credits; NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. The Bank hereby agrees to sell to Project Applicant and Project Applicant hereby agrees to purchase from the Bank 0.09 Wetland Mitigation Credits for the purchase price of $22,500.00. Upon receipt of the purchase price, Bank will deliver to Project Applicant an executed Bill of Sale in the manner and form as attached hereto and marked Exhibit "B". The purchase price for said Mitigation Credits shall be paid by cashier's check or, at the option of the Bank, wire transfer of funds according to written instructions by the Bank to Project Applicant. The Bank shall then issue a payment receipt to Project Applicant in the form as attached hereto and marked Exhibit "C". Version 2014 wag-,2��7 2 2. The sale and transfer herein is not intended as a sale or transfer to Project Applicant of a security, license, lease, easement, or possessory or non -possessory interest in real property, nor the granting of any interest of the foregoing. 3. Project Applicant shall have no obligation whatsoever by reason of the purchase of the Mitigation Credits, to support, pay for, monitor, report on, sustain, continue in perpetuity, or otherwise be obligated or liable for the success or continued expense or maintenance in perpetuity of the Mitigation Credits sold, or the Bank. Pursuant to the Bank Agreement and any amendments thereto, the Bank shall monitor and make reports to the appropriate agency or agencies on the status of any Mitigation Credits sold to Project Applicant. The Bank shall be fully and completely responsible for satisfying any and all conditions placed on the Bank or the Mitigation Credits by all state or federal jurisdictional agencies. 4. The Mitigation Credits sold and transferred to Project Applicant shall be nontransferable and non - assignable and shall not be used as compensatory mitigation for any other project or purpose, except as set forth herein. 5. Project Applicant must exercise his/her/its purchase the Mitigation Credits within 30 days of the date of this Agreement. After the 30 -day period this Agreement will be considered null and void. 6. Upon purchase of the Mitigation Credits specified in paragraph E above, the Bank shall submit to the parties listed in the Notices section of the Bank Agreement, copies of the: a) Agreement for Sale of Mitigation Credits; b) Bill of Sale; c) Payment Receipt; and d) an updated ledger. The updated inventory / ledger must detail: i) Project Applicant; ii) Project Name; iii) Status (sale complete/sale not complete); iv) Mitigation Credit Sale Date; v) Service File Number; vi) U.S. Army Corps of Engineers File Number (if applicable); vii) Total Number of Mitigation Credits Authorized to Sell; viii) Total Number of Mitigation Credits Sold to Date (inclusive); and ix) Balance of all Mitigation Credits Available. The inventory / ledger should include all sales data from the Bank opening/establishment to the present. RMR Version 2020 3 IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above wntten BANK BIG THOONr�IGATION BANK By Date 09/07/2023 x BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO 7n,s. 3.- Mike Freeman, Chair ATTEST dd"" ;tik. Clerk to By. Deputy Clerk to the • rd Date SEP 0 6 2023 SEP 0 6 2023 Date RMR Vernon 2020 021123 - Z -J'% 4 Exhibit "A" DESCRIPTION OF PROJECT 'TO BE MITIGATED [Weld County Bridge 5358-A Replacement Project USACE No. NWO-2017-02260-DEN)], Weld County, Colorado The Project consists of a bridge replacement on the South Platte River, north of Kersey, Colorado. The reconstructed bridge was necessary following the 2013 floods and was completed in 2017. Compensatory mitigation was performed onsite, but some areas of the project have been negatively impacted by high -stream flows. The impacted areas consist of approximately 0.04 acres of wetlands which have not met USACE performance standards for compensatory mitigation. The project site is located at Latitude 40.412217, Longitude -104.563340 in Weld County, Colorado. To compensate for the loss of approximately 0.04 acres of wetlands, the Permittee will purchase 0.09 wetland mitigation credits from the Big Thompson Confluence Mitigation Bank. RMR Version 2020 5 Exhibit "B" BILL OF SALE USACE File # NWO-2016-00852-DEN USACE Permit # NWO-2017-02260-DEN In consideration of $22,500.00, receipt of which is hereby acknowledged, WESTERVELT ECOLOGICAL SERVICES, LLC, a Delaware limited liability company, located at 1400 Jack Warner Parkway NE, Tuscaloosa, Alabama 35404, does hereby bargain, sell and transfer to WELD COUNTY COLORADO (Project Applicant), 0.09 wetland Mitigation Credits in the Big Thompson Confluence Mitigation Bank in Weld County, Colorado, developed, and approved by the US Army Corps of Engineers. Westervelt Ecological Services represents and warrants that it has good title to the Mitigation Credits, has good right to sell the same, and that they are free and clear of all claims, liens, or encumbrances. Westervelt Ecological Services covenants and agrees with the Project Applicant to warrant and defend the sale of the Mitigation Credits hereinbefore described against all and every person and persons whomsoever lawfully claiming or to claim the same. DATED: WESTERVELT ECOLOGICAL SERVICES, LLC, a Delaware limited liability company BIG THOMPSON CONFLUENCE MITIGATION BANK By: Date: RMR Version 2020 6 Exhibit "C" Big Thompson Confluence Mitigation Bank PAYMENT RECEIPT PARTICIPANT INFORMATION Name: Weld County Colorado Address: PO Box 758 Greeley, CO 80632 Telephone: 970-400-4000 Contact: Clay Kimmi PROJECT INFORMATION Project Description: Weld County Bridge 5358-A Replacement Project USACE Permit Number: NOW -2017 -02260 -DEN Resource Affected: Waters of the U.S. Mitigation Credits to be Purchased: 0.09 Payment Amount: $22,500.00 Project Location: latitude 40.412217, longitude -104.563340 County/Address: Weld County, Colorado PAYMENT INFORMATION Payee: Westervelt Ecological Services, LLC Payer: Weld County Colorado Amount: Twenty Two Thousand Five Hundred Dollars Method of payment: Cash Check No. Received by: Date: Money Order ACH Wire (Signature) Name: Title: RMR Version 2020 New Contract Request Entity Information Entity Name * WESTERVELT ECOLOGICAL SERVICES LLC Entity ID* @00047519 D New Entity? Contract Name * Contract ID AGREEMENT TO PURCHASE WETLAND MITIGATION 7343 CREDITS FOR BRIDGE 53-58A Contract Status CTB REVIEW Contract Lead * CKIMMI Contract Lead Email CKimmi@co.weld.co.us Parent Contract ID Requires Board Approval YES Department Project # EM-BR53-58A Contract Description AGREEMENT TO PURCHASE 0.09 ACRES OF WETLAND MITIGATION CREDITS IN THE BIG THOMPSON CONFLUENCE MITIGATION BANK FOR BRIDGE 53-58A Contract Description 2 Contract Type * Department Requested BOCC Agenda Due Date AGREEMENT PUBLIC WORKS Date* 09/02/2023 09/06/2023 Amount* Department Email $22,500.00 CM- Will a work session with BOCC be required?* PublicWorks@weldgov.c HAD Renewable om NO Does Contract require Purchasing Dept. to be Department Head Email included? Automatic Renewal CM-PublicWorks- NO NO DeptHead@weldgov.com Grant County Attorney NO GENERAL COUNTY IGA ATTORNEY EMAIL NO County Attorney Email CM- COUNTYATTORNEY@WE LDGOV.COM If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnBase Contract Dates Effective Date Review Date * Renewal Date 08/22/2023 Termination Notice Period Contact Information Committed Delivery Date Expiration Date* 12/31/2123 Contact Info Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2 Purchasing Purchasing Approver Purchasing Approved Date Approval Process Department Head Finance Approver Legal Counsel .CURTIS HALL CHERYL PATTELLI BRUCE BARKER DH Approved Date Finance Approved Date Legal Counsel Approved Date 08/24/2023 08/24/2023 08/31/2023 Final Approval BOCC Approved Tyler Ref # AG 090623 BOCC Signed Date BOCC Agenda Date 09/06/2023 Hello