HomeMy WebLinkAbout20174236.tiffRESOLUTION
RE: APPROVE AGREEMENT FOR CONTRIBUTION TO ENVIRONMENTAL STORAGE
SPACE WITHIN THE REALLOCATION POOL FOR THE PRIMARY PURPOSE OF
TIMED RELEASES TO ALLEVIATE LOW FLOW CONDITIONS DOWNSTREAM OF
CHATFIELD RESERVOIR AND AUTHORIZE CHAIR TO SIGN - THE GREENWAY
FOUNDATION
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 Contribution to
Environmental Storage Space within the Reallocation Pool for the primary purpose of timed
releases to alleviate low flow conditions downstream of Chatfield Reservoir between the County
of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
and The Greenway Foundation, 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 Agreement for contribution to environmental storage space within the
Reallocation Pool for the primary purpose of timed releases to alleviate low flow conditions
downstream of Chatfield Reservoir between the County of Weld, State of Colorado, by and
through the Board of County Commissioners of Weld County, and The Greenway Foundation be,
and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
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2017-4236
BC0050
RE: AGREEMENT FOR CONTRIBUTION TO ENVIRONMENTAL STORAGE SPACE WITHIN
THE REALLOCATION POOL FOR THE PRIMARY PURPOSE OF TIMED RELEASES TO
ALLEVIATE LOW FLOW CONDITIONS DOWNSTREAM OF CHATFIELD RESERVOIR — THE
GREENWAY FOUNDATION
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 18th day of December, A.D., 2017.
ATTEST:
datifet)
Weld County Clerk to the Board
BY:
Deputy Cler
APPO ED AS
ouAttorney
Date of signature: O/40 -/g
BOARD OF COUNTY COMMISSIONERS
WELD COU TY, COLORADO
Ju . Cozad, Chair
Steve Moreno, Pro -Tern
EXCUSED
Sean P. Conway
Mike Freeman
rbara Kirkm
y
2017-4236
BC0050
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into between the County of Weld, a
political subdivision of the State of Colorado, by and through the Board of County Commissioners
of Weld County("Weld County"), whose address is P.O. Box 758, 1150 O Street, Greeley, CO
80632, and The Greenway Foundation ("Greenway"), a Colorado nonprofit corporation doing
business at 1855 S. Pearl Street, Suite 40, Denver, CO 80210, jointly referred to herein as the
"Parties."
RECITALS
WHEREAS, the United States Army Corps of Engineers Omaha District ("Corps") owns
and operates Chatfield Reservoir and Dam. By Contract dated March 1, 1979, the Corps provided
storage space to the State of Colorado ("State") to control and manage the use of water stored in
the space including and below elevation 5432 feet; and
WHEREAS, by letter of approval and record of decision ("ROD") dated May 29, 2014,
the Corps authorized the reallocation of an additional 20,600 acre feet of storage space, as
determined by the volume between elevation 5,432 feet and elevation 5,444 feet, from the
exclusive flood control pool to joint use flood control -conservation purposes, including storage for
municipal and industrial water supply, agriculture, environmental restoration, and recreation and
fishery habitat protection and enhancement ("Reallocation Pool"); and
WHEREAS, the Department of the Army and the Colorado Department of Natural
Resources ("CDNR") entered into an agreement dated October 9, 2014 by which CDNR acquired
the right to use for water storage purposes the Reallocation Pool storage space referenced above;
and
WHEREAS, the State and various water providers along the South Platte River Basin
("Water Providers") negotiated and agreed upon a Fish, Wildlife, and Recreation Mitigation Plan
for the Chatfield Reallocation Project, approved by the Colorado Parks and Wildlife Commission
on January 9, 2014, pursuant to Section 37-60-122.2, C.R.S., and subsequently approved by the
Colorado Water Conservation Board ("CWCB") on January 28, 2014, defining the mitigation
actions required by the State of Colorado in connection with the Chatfield Reallocation Project
("Mitigation Plan"); and
WHEREAS, Section 4.2.1.2.4 of the Mitigation Plan calls for the creation of an
environmental storage space ("Environmental Pool") within the Reallocation Pool for the primary
purpose of timed releases to alleviate low flow conditions downstream of Chatfield Reservoir. The
Plan proposes that 1,000 acre feet of the Environmental Pool will be acquired by Colorado Parks
& Wildlife ("CPW"), and 600 acre feet will be acquired by the CWCB. The Plan states that CPW
will have control over water stored within the Environmental Pool and will have the authority to
make releases as it deems appropriate; and
WHEREAS, CDNR entered into agreements with Water Providers by which the right to
store water in the Reallocation Pool, as well as the costs of construction and mitigation associated
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2017-4236
therewith, are allocated to Water Providers. As relevant here, by agreement effective October 16,
2015, CDNR granted to the CWCB the right to use 7,057 acre feet of storage space in Chatfield
Reservoir. Additionally, by agreement effective October 16, 2015, CDNR granted to CPW the
right to use 1,000 acre feet of storage space in Chatfield Reservoir; and
WHEREAS, the State, Water Providers, and Weld County and County of Denver acting
by and through its Board of Water Commissioners ("Denver Water"), entered into an agreement
dated October 15, 2015, by which the parties agreed to collaborate to create the Environmental
Pool. The parties agreed that CPW would manage the Environmental Pool in accordance with the
terms of the Mitigation Plan and that the Environmental Pool would have a maximum volume of
2,100 acre feet, unless enlarged by the mutual consent of all the parties; and
WHEREAS, Weld County has been asked to contribute to the Environmental Pool
shares. Weld County's economy is dependent upon agricultural and the growing economy in
areas of energy, technology, and manufacturing. All of Weld County's economic sectors are
dependent upon water resources. Such dependence will continue well into the future. The added
water resource from the Environmental Pool will allow continuation of economic growth in
Weld County, while still maintaining a strong agricultural heritage, thereby benefitting the
citizens of Weld County.
NOW THEREFORE, in consideration of the promises set forth herein, the Parties agree as
follows:
Article I — Contribution to Environmental Pool Shares
1. Overview
A. The Parties agree that increasing the capacity of the Environmental Pool will serve
to enhance to flow of the South Platte River during low -flow conditions, which will benefit the
citizens of Weld County and the County's environment by improving water quality, enhancing
habitat for plant and animal species, and facilitating recreation along the River.
B. Currently, only 1,600 of the 2,100 acre feet available storage capacity have been
dedicated to the Environmental Pool. Greenway and Denver Water have partnered to obtain
commitments to fund the remaining 500 acre feet of available storage space.
C. Specifically, Denver Water has agreed to fund 250 acre feet of storage space for the
Environmental Pool so long as Greenway successfully obtains funding for the remaining 250 acre
feet.
D. As part of the partnership described above, Weld County has pledged to fund 15
acre feet of storage capacity for the Environmental Pool at a cost of $7,500 per acre foot. Weld
County will pay $112,500 to Greenway, which Greenway will subsequently pay to CWCB for the
purpose of dedicating 15 acre feet of storage capacity to the Environmental Pool.
Page 2 of 6
E. The $7,500 per acre foot cost represents the full cost to Weld County. Future costs
related to the Corps' operations, maintenance, and repairs to its facilities are not part of the Weld
County's pledge and will be funded by others.
2. Agreement
A. Weld County agrees to pay to Greenway on or before December 31, 2018, ONE -
HUNDRED TWELVE THOUSAND FIVE -HUNDRED DOLLARS AND NO CENTS
($112,500) ("Contract Amount") in one lump sum to enable Greenway to purchase 15 acre feet of
storage capacity in Chatfield Reservoir to the Environmental Pool, in accordance with the
Mitigation Plan.
B. Upon receipt of payment from Weld County, Greenway agrees to pay the Contract
Amount to the CWCB on or before December 31, 2018, to dedicate 15 acre feet of storage capacity
in Chatfield Reservoir to the Environmental Pool, in accordance with the Mitigation Plan.
C. If Greenway does not perform its obligations as set forth in Section 2(B) above,
Greenway will return the Contract Amount to Weld County within thirty (30) days.
D. If the ROD authorizing the Reallocation Project is overturned pursuant to Audubon
Society of Greater Denver v. United States Army Corps of Engineers, case no. 1:14-cv-02749-
PAB, Greenway shall return the Contract Amount to Weld County within thirty (30) days after a
final judgment is issued.
Article II — General Provisions
1. No Assignment. No right or obligation granted by this Agreement shall be assigned by
either party.
2. Waiver. No party shall waive its rights by failing to exercise its rights; any such failure
shall not affect the right of the party to exercise at some future time the rights not previously
exercised.
3. Venue; Governing Law. Venue for any dispute over any issue resulting from this
Agreement shall be in the Weld County District Court.
4. Term of Agreement. This Agreement will commence on the date executed by Weld County
as indicated on its signature page. Although the payment obligations of the Parties shall be
completed by December 31, 2017, the provisions of this Agreement shall remain effective without
termination.
5. Integration. This Agreement shall be construed and enforced as the fully integrated
expression of the Parties' contract with respect to the matters and subjects addressed in this
Agreement. No express or implied covenant not specifically set forth shall be deemed to be a part
of this Agreement.
Page 3 of 6
6. Effect on Prior Contracts. Except as specifically referenced and altered by this Agreement,
any other agreements between the Parties shall remain in full force and effect.
7. Examination of Records. Any authorized agent of Weld County shall have the right to
access and the right to examine any pertinent books, documents, papers and records of Greenway,
involving transactions related to the Agreement, until the latter of three (3) years after the final
payment under the Agreement or expiration of the applicable statute of limitations.
8. Electronic Signatures & Records. The Parties consent to the use of electronic signatures.
The Agreement, and any other documents requiring a signature hereunder, may be signed
electronically. The Parties agree not to deny the legal effect or enforceability of the Agreement
solely because it is in electronic form or because an electronic record was used in its formation.
The Parties agree not to object to the admissibility of the Agreement in the form of an electronic
record, or a paper copy of an electronic document, or a paper copy of a document bearing an
electronic signature, on the grounds that it is an electronic record or electronic signature or that it
is not in its original form or is not an original.
9. Representatives. The following representatives are designated to accept or give any
request, approval, notice or the like provided for by this agreement:
For Weld County:
Julie A. Cozad, Chair
Board of County Commissioners of Weld county
P.O. Box 758
1150 O Street
Greeley, CO 80632
For Greenway:
Executive Director of The Greenway Foundation
1855 S. Pearl St., Suite 40
Denver, CO 80210
10. No Third -Party Beneficiary. Enforcement of the terms of the Agreement and all rights of
action relating to enforcement are strictly reserved to the Parties. Nothing contained in the
Agreement gives or allows any claim or right of action to any third person or entity. Any person
or entity other than Weld County or Greenway receiving services or benefits pursuant to the
Agreement is an incidental beneficiary only.
11. No Authority to Bind Weld County to Contracts. Greenway lacks any authority to bind
the Weld County on any contractual matters.
12. Severability. Except for the provisions of the Agreement requiring appropriation of
funds and limiting the total amount payable by the Weld County, if a court of competent
Page 4 of 6
jurisdiction finds any provision of the Agreement or any portion of it to be invalid, illegal, or
unenforceable, the validity of the remaining portions or provisions will not be affected, if the
intent of the Parties can be fulfilled.
13. Conflict of Interest. Greenway shall not engage in any transaction, activity or conduct that
would result in a conflict of interest under the Agreement. Greenway represents that it has
disclosed any and all current or potential conflicts of interest. A conflict of interest shall include
transactions, activities or conduct that would affect the judgment, actions or work of Greenway by
placing Greenway's own interests, or the interests of any party with whom Greenway has a
contractual arrangement, in conflict with those of Weld County. Weld County, in its sole
discretion, will determine the existence of a conflict of interest and may terminate the Agreement
if it determines a conflict exists, after it has given Greenway written notice describing the conflict.
16. No Discrimination in Employment. In connection with the performance of work under the
Agreement, Greenway may not refuse to hire, discharge, promote or demote, or discriminate in
matters of compensation against any person otherwise qualified, solely because of race, color,
religion, national origin, gender, age, military status, sexual orientation, gender identity or gender
expression, marital status, or physical or mental disability.
17. Compliance with All Laws. Greenway shall perform or cause to be performed all services
in full compliance with all applicable laws, rules, regulations and codes of the United States and
the State of Colorado.
18. Legal Authority. Greenway represents and warrants that it possesses the legal authority,
pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to
enter into the Agreement. Each person signing and executing the Agreement on behalf of
Greenway represents and warrants that he or she has been fully authorized by Greenway to execute
the Agreement on behalf of Greenway and to validly and legally bind Greenway to all the terms,
performances and provisions of the Agreement. Weld County shall have the right, in its sole
discretion, to either temporarily suspend or permanently terminate the Agreement if there is a
dispute as to the legal authority of either Greenway or the person signing the Agreement to enter
into the Agreement.
19. Survival of Certain Provisions. The terms of the Agreement and any exhibits and
attachments that by reasonable implication contemplate continued performance, rights, or
compliance beyond expiration or termination of the Agreement survive the Agreement and will
continue to be enforceable.
20. No Construction Against Drafting Party. The Parties and their respective counsel have had
the opportunity to review the Agreement, and the Agreement will not be construed against any
party merely because any provisions of the Agreement were prepared by a particular party.
21. Weld County Execution of Agreement. The Agreement will not be effective or binding on
Weld County until it has been approved by the Board of County Commissioners of Weld County
and fully executed by the Chair of such Board.
Page 5 of 6
22. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their successors in interest.
23. No Third -Party Enforcement. It is expressly understood and agreed that the enforcement
of the terms and conditions of this Agreement, and all rights of action relating to such enforcement,
shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or
allow any claim or right of action whatsoever by any other person not included in this Agreement.
It is the express intention of the undersigned parties that any entity other than the Parties receiving
services or benefits under this Agreement shall be an incidental beneficiary only.
24. No Waiver of Immunities. No portion of this Agreement shall be deemed to constitute a
waiver of any immunities the Parties or their officers or employees may possess, nor shall any
portion of this Agreement be deemed to have created a duty of care which did not previously exist
with respect to any person not a party to this Agreement.
Signed this l8'+h day of Qectmbcr , 2017.
ATTEST: f®�4/
OUNTY OF WELD, a political subdivision
Weld County Clerk to the Boa _.l� y�;e STATE OF COLORADO
By
eputy `J r t the Bo
It lei
ie A. Cozad, Chair, poard of County
ommissioners of Weld County
DEC 1 8 2017
THE GREENWAY FOUNDATION
By:
Title: _ _
Page 6 of 6
0t0/7- yo23!0
RE: AGREEMENT FOR CONTRIBUTION TO ENVIRONMENT STORAGE SPACE WITHIN
THE REALLOCATION POOL FOR THE PRIMARY PURPOSE OF TIMED RELEASES TO
ALLEVIATE - THE GREENWAY FOUNDATION
PAGE 2
AP,,-•ZS
Elected Official Department Nead
Controller
APPROVED AS TO FORM:
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