HomeMy WebLinkAbout20203016.tiffRESOLUTION
RE: APPROVE WATER CONVEYANCE AGREEMENT CONCERNING AJ EATON WATER
RIGHTS CONVEYED THROUGH NORTH PIERCE PIT AND AUTHORIZE CHAIR TO
SIGN - CLIFF SIMPSON
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 Water Conveyance Agreement
Concerning AJ Eaton Water Right (also known as the A.J. Eaton Flood Water Ditch Nos. 1 and 2)
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 Cliff Simpson,
commencing upon full execution of signatures, 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 Water Conveyance Agreement Concerning AJ Eaton Water Right
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 Cliff Simpson,
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 5th day of October, A.D., 2020.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: d , ,, x, ;41 EXCUSED
Mike Freeman, Chair
Weld County Clerk to the Board
ty torney
Date of signature: 1O/13 /2:Q
Steve 'oreno, ro-Tem
K. James
rbara Kirkme
Kevin D. Ross
cc: cA(s6), pi,.)(Ea,/cH)
11104120
2020-3016
EG0078
WATER CONVEYANCE AGREEMENT
IS WATER CONVEYANCE AGREEMENT is made and entered into this day
of 2020, by and between WELD COUNTY, (hereinafter "COUNTY"), and
CLIFF SIMPSON, an individual, (hereinafter "SIMPSON"). County and Simpson are sometimes
referred to herein individually as a "Party" or collectively as the "Parties".
RECITALS:
County, as seller, and Simp on, as purchaser, are parties to that certain Purchase and Sale
Agreement dated effective as of5, o2-O.2O ("Purchase Agreement") relating to the
sale by County and purchase by Simpson of certain real property located in Weld County,
Colorado, hereinafter referred to as the "PIERCE PIT".
County owns certain real property adjacent to the Pierce Pit as more particularly described
on Exhibit A, which includes the North Pierce Pit as shown on Exhibit A.
Simpson is purchasing a water right known as the A.J. Eaton Flood Water Ditch No. and
A.J. Eaton Flood Water Ditch No. 2 originally decreed in Civil Action No. 2142, District Court,
Weld County, dated January 15, 1914, hereinafter the "AJ EATON WATER RIGHT".
The AJ Eaton Water Right is a water right on Lone Tree Creek and at times is entitled to
divert water from said Creek.
At times, water flows from Lone Tree Creek into the North Pierce Pit.
In addition to the Purchase Agreement, Simpson desires that the County enter into an
agreement with Simpson whereby the County will agree to pump any water that runs into the North
Pierce Pit to the Lone Tree Creek Channel at a location adjacent to the North Pierce Pit.
County desires Simpson have certain obligations related to County's performance of
pumping any water that runs into the North Pierce through Lone Tree Creek Channel to the Pierce
Pit.
WHEREAS, the parties desire to enter into an agreement to facilitate the pumping of
water from the North Pierce Pit through the Lone Tree Creek Channel.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are hereby confessed and
acknowledged, County and Simpson agree as follows:
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1. CONVEYANCE. The Parties acknowledge that the County shall use its best efforts to
pump any water that runs into the North Pierce Pit into the Lone Tree Creek channel where
it may flow to the Pierce Pit. The County shall only be responsible for pumping the water
to the Lone Tree Creek Channel at the point shown in Exhibit A, attached hereto and
incorporated herein. The County shall pump water from the North Pierce into the Lone
Tree Creek Channel anytime water is captured in the North Pierce in amounts which can
be physically pumped from the North Pierce Pit by reasonable means. The Parties agree
that the County shall be entitled to pump the water from the North Pierce Pit at the rate of
between 1,000 and 2,000 gallons per minute. To the extent Simpson desires to use the
water pumped from the North Pierce Pit by the County, Simpson shall be responsible for
ensuring that he has the legal right and physically ability to either store the water in the
Pierce Pit or divert the water via the AJ Eaton Water Right. Otherwise Simpson shall be
responsible for bypassing the water downstream for the benefit of other vested water rights.
2. COSTS. County shall be responsible for the costs of pumping the water from the North
Pierce Pit into the Lone Tree Creek Channel at a location proximate to the North Pierce
Pit. Any costs associated thereafter once the County pumps the water into the Lone Tree
Creek Channel will be the sole responsibility of Simpson.
3. INDEMNIFICATION; WAIVER AND RELEASE. To the extent permitted by law,
Simpson shall indemnify, assume the defense of and hold free and harmless County from
any and all liabilities, claims, demands, loss, damage, cost or causes of action to the extent
arising from County's performance of the terms of this Agreement or Simpson's failure to
fully perform the Agreement. Simpson shall be responsible for any damages caused by the
water pumped by the County under this Agreement. The County shall not be required to
pump water pursuant to this Agreement if so ordered by the State or Division Engineer or
their representatives or any court of competent jurisdiction. Further, the County shall be
entitled to pump water at times not required by this Agreement if so ordered by the State
or Division Engineer or their representatives or any court of competent jurisdiction.
Simpson shall be responsible for ensuring he has all legal rights to use the water pumped
hereunder. Simpson recognizes that the pumping of water by the County may result in
erosion or other physical damage to property owned by Simpson and Simpson hereby
agrees to waive his right to any and all damages related thereto.
4. GENERAL PROVISIONS.
a. Agreement to Run with Land. This Agreement and all of the covenants, agreements,
rights and obligations created hereby, shall run with the land and shall inure to the
benefit of and be binding upon County and Simpson and their respective successors
and assigns with respect to the North Pierce Pit, the Pierce Pit and AJ Eaton Water
Right.
b. Section Headings. The Section headings herein are inserted only for convenience
and reference and shall in no way define, limit, or prescribe the scope or intent of
any provisions of this Agreement.
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c. Severability. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and whenever there is any conflict between
any provision herein and any present or future statute, law, ordinance or regulation
contrary to which the Parties have no legal right to contract, the latter shall prevail,
but the provision of this Agreement affected shall be limited only to the extent
necessary to bring it within the requirements of such statute, law, ordinance or
regulation.
d. Term. This Agreement shall be in effect until such time as the North Pierce Pit is
reclaimed such that it no longer intercepts water flowing in Lone Tree Creek or the
County is no longer required to pump water from the North Pierce Pit by the
Colorado State Engineer, Division Engineer, Water Commissioner or Water Court
for Water Division 1.
e. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all such counterparts taken
together shall be deemed to constitute one and the same instrument.
f. Governing Law. The terms and provisions of this Agreement, and the interpretation
and enforcement thereof, shall be governed by the laws of the State of Colorado, to
which all Parties consent to venue and jurisdiction.
g.
Amendment. This Agreement may not be amended or terminated except by a
written instrument signed by the then fee owner(s) of the North Pierce Pit, the
Pierce Pit, and AJ Eaton Water Right.
h. Entire Agreement. This Agreement together with the exhibits attached hereto,
contains the entire agreement of the Parties with respect to the subject matter hereof
and no prior Agreement, written or oral, shall have any force or effect or be binding
upon the Parties. This Agreement shall be binding upon, and inure to the benefit of,
the Parties, their heirs, executors, personal representatives, nominees, successors or
permitted assigns.
i. Notices. All notices, requests, demands, or other communications (collectively,
"Notices") hereunder shall be in writing and given by (i) hand delivery, or (ii)
certified or registered mail, postage prepaid, return receipt requested to the Parties
at the following address, or at such other address as the Parties may designate by
Notice in the above manner.
i. To County: WELD COUNTY PUBLIC WORKS
1111 H Street
PO BOX 758
Greeley, CO 80632-0758
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ii. To Simpson: CLIFF SIMPSON
ADDRESS
ADDRESS
Notices shall be effective upon receipt of by the addressee of a hand delivery or
three days following the date of mailing via certified or registered mail, postage
prepaid, return receipt requested.
J.
Default. If any Party breaches any provision of this Agreement and fails to cure
such breach within 10 days after written notice thereof, the non -breaching Party
shall be entitled to any and all remedies, legal or equitable, which may be available
including, without limitation, specific performance. All such remedies, including
those set forth in this Agreement, shall be cumulative.
k. No Attorney's Fees or Costs. In the event of any litigation, mediation, arbitration
or other dispute resolution process arising out of this Agreement, the Parties agree
that each shall be responsible for their own costs and fees associated with any such
legal action.
1. Recordation. Either Party may record this Agreement in the real property records
of Weld County, Colorado.
m. No Public Dedication. Nothing contained in this Agreement will be deemed a gift
or dedication of any portion of the Weld County Properties or the Pierce Pit for the
general public or for any public purpose whatsoever; this Agreement will be strictly
limited to and be for the purposes set forth herein and will not be interpreted or
construed to create any third party beneficiary rights in any person not a party
hereto, except as otherwise expressly provided in this Agreement.
n. Disclaimer of Joint Venture. This Agreement is not intended to create a joint
venture, partnership or agency relationship between County and Simpson, and such
joint venture, partnership, or agency relationship is specifically hereby disclaimed.
o. Incorporation of Recitals. The above recitals are true and correct and incorporated
herein.
p. Construction. The Parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any of the provisions of this Agreement.
Force Majeure. Subject to the terms and conditions in this Paragraph, no party to
this Agreement shall be liable for any delay or failure to perform under this
Agreement due solely to conditions or events of force majeure, as that term is
specifically defined herein; provided that: A) the non performing party gives the
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other party prompt written notice describing the particulars of the occurrence of the
force majeure; B) the suspension of performance is of no greater scope and of no
longer duration than is required by the force majeure event or condition; and C) the
non -performing party proceeds with reasonable diligence to remedy its inability to
perform and provides weekly progress reports to the other party describing the
actions taken to remedy the consequences of the force majeure event or condition.
As used herein force majeure shall mean any delay or failure of a party to perform
its obligations under this Agreement caused by events beyond the party's
reasonable control, and without the fault or negligence of the party, including,
without limitation A) changes in state or federal law or administrative practice
concerning, water rights administration, water quality or stream flow requirements,
B) changes in state water rights administrative practice, C) acts of God, D) sudden
actions of the elements such as floods, earthquakes, hurricanes, or tornadoes, D)
sabotage, F) vandalism beyond that which can be reasonably prevented by the
party, G) terrorism, H) war, I) riots, J) fire, K) explosion, L) severe cold or hot
weather, M) snow, N) drought O) other extreme weather conditions, O) blockades,
Q) insurrection, R) strike, slow down or labor disruptions (even if such difficulties
could be resolved by conceding to the demands of a labor group); S) actions by
federal, state, municipal, or any other government or agency (including but not
limited to, the adoption or change in any rule or regulation or environmental
constraint imposed by federal, state or local government bodies), T) inability,
despite due diligence, to obtain required licenses, permits or approvals, U) changes
of law relating to financial obligations, revenues and budgetary matters concerning
Colorado local governments and their enterprises, and V) pandemics.
q.
No Waiver to appropriate water right. Nothing in this Agreement shall be
interpreted to preclude the County or its successor in interest from appropriating a
water right in connection with the North Pierce Pit. If such a right is appropriated,
the County or its successor in interest may retain water captured by the North Pierce
Pit to which it is lawfully entitled.
r. No Waiver of Governmental Immunity. Nothing herein shall be construed as a
waiver of the rights and privileges of County pursuant to the Colorado Constitution
and the Colorado Governmental Immunity Act as codified in Title 24, Article 10,
as amended from time to time.
s. Not a Multiple Fiscal Year Debt or Financial Obligation. The County's
performance of its obligations under this Agreement are subject to the annual
appropriation of funds by the Board of County Commissioners of Weld County.
This Agreement shall never constitute a general obligation or other indebtedness of
the County, or a multiple fiscal year direct or indirect debt or other financial
obligation whatsoever of the County within the meaning of the Constitution and
laws of the State of Colorado or of the Charter and ordinances of the County.
IN WITNESS WHEREOF, SIMPSON and COUNTY have caused this Agreement to be
executed on the date and year written below.
5
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY: CLIFF SIMPSON.
Steve Moreno,
Pro-Tem
(Oe 0 5 2020
ATTEST:
(Seal)
Date)
(Seal)
020- 66, (.0
EXHIBIT "A"
A parcel of land lying in the West Half (W 1/2) of the Southwest Quarter (SW l / 4) and in the
Southwest Quarter (SW 1/ 4) of the Northwest Quarter (NW 1/4) of Section 7, Township 8
North, Range 65 West of the 6th Principal Meridian in Weld County, Colorado, more
particularly described as follows: Assuming the west line of said Section 7 to bear due north and
beginning at the southwest corner of said Section 7; thence North along the West line of said
Section 7; a distance of 2,570.50 feet to the West Quarter Corner (W 1/4 Cor.) of said Section 7;
thence continuing North along the West line of said Section 7 a distance of 404.10 feet; thence
meandering southeasterly along the east bank line of Lone Tree Creek by the following courses
and distances, South 24° 35' 33" East 240. 83 feet; thence South . 61° 32' 06" East 611.84 feet;
thence South 23° 37' 24" East 183.24 feet; thence South 01° 27' 03" West 769.19 feet; thence
South 17° 16' 45" East 243.30 feet; thence South 76° 21' 48" East 181.10 feet; thence South 47°
39' 21" East 382.48 feet; thence South 01° 42' 36" West 1,001.42 feet .to a point on the South line
of said Section 7; thence North 89° 41' 27" West along the South line of said Section 73 a
distance of 1,193.15 feet to the Southwest corner of said Section 7, Weld County, Colorado.
Said described parcel contains 2,461.164 Square Feet or 56.501 acres, more or less (±).
J
EXHIBIT A: PUMPING LOCATION FOR
NORTH PIERCE PIT
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DISCAIMER
The GIS database and data in the product is subject to constant
change and the accuracy and completeness cannot be and is not
guaranteed The designation of lots or parcels or land uses in the
database does not imply that the lots or parcels were created or
that the land uses comply with applicable State or Local Law
WELD COUNTY MAKES NO WARRANTIES OR GUARANTEES,
EITHER EXPRESSED OR IMPLIED AS TO THE COMPLETENESS,
ACCURACY, OR CORRECTNESS OF SUCH PRODUCT, NOR
ACCEPTS ANY LIABILITY ARISING FROM ANY INCORRECT,
INCOMPLETE, OR MISLEADING INFORMATION CONTAINED
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