HomeMy WebLinkAboutbocc.con.175.21 - BOCC Contract No. 174.2021
Attached
Contract No. 175.2021
Attached
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO,ADOPTING AN INTERGOVERNMENTAL AGREEMENT
WITH THE CITY OF AURORA AND A MEMORANDUM OF UNDERSTANDING
WITH THE CITY OF AURORA AND THE BUREAU OF RECLAMATION
CONCERNING BUSK-IVANHOE WATER RIGHTS AND THE FRYING PAN
EXCHANGE
RESOLUTION NO. 030-2021
RECITALS
1. Pursuant to Article II of the Home Rule Charter("HRC"), the BOCC is authorized to take
official action by Formal Resolution for certain matters where such action is described by the
Charter or Colorado Revised Statutes.
2. Pursuant to the Intergovernmental Agreement of 2018 with the City of Aurora, this proposed
IGA and MOU are contemplated and required in order to complete the anticipated Frying Pan
exchange to augment the benefits received through the 2018 IGA to the Roaring Fork and Frying
Pan Rivers.
3. The Intergovernmental Agreement of 2018 with the City of Aurora concluded all aspects of
Pitkin County's objections to the change application filed by Aurora concerning it water rights in
the Busk-Ivanhoe Trans-mountain Diversion Project. The IGA realized for Pitkin County up to
1000 acre feet in releases and bypasses to the upper Roaring Fork benefiting the river and
riparian ecology, recreation, fisheries and consumptive uses in the Roaring Fork. Additionally,
the IGA and its contemplated Frying Pan exchange will benefit reservoir levels in Ruedi
Reservoir and the fishery of the lower Frying Pan River.
4. Cooperation between Aurora, the Twin Lakes Reservoir and Canal Company and Pitkin
County will allow for the maximum benefit of the releases and bypasses into the Roaring Fork
by granting increased flexibility in the timing and amount of the releases and bypasses to occur
when the river system most needs the water.
5. The Frying Pan exchange will be participated in by Pitkin County, Aurora and the Bureau of
Reclamation. The IGA and MOU are necessary to establish and memorialize the relationship
between these parties in the establishment and operation of the exchange.
6. The exchange will allow the released and bypassed water at the Independence Pass Trans-
mountain Diversion Project, operated by Twin Lakes, to be called down the Roaring Fork River
to the confluence with the Frying Pan River, thereby keeping that water resource in the upper
Roaring Fork. Once at the confluence the water will be exchanged up the Frying Pan into Ruedi
Reservoir up to its full amount of 900 acre feet. If annual variation in water availability or other
factors impact this exchange then the water may be dedicated to in-stream flow for the Roaring
Fork or delivered to the Pitkin County White Water Park or other approved uses. Additionally,
when the exchange is operating reservoir levels will be stabilized and flows in the lower Frying
Pan will better facilitate wade fishing.
7. The water once exchanged into Ruedi Reservoir will be available for exchange into Ivanhoe
Reservoir to a maximum amount of 450 acre feet. Once carried over into Ivanhoe, the water will
be available for transport and delivery to Aurora's municipal water system. Pitkin County will
be entitled to one fourth of the water delivered through the Busk-Ivanhoe system up to 100 acre
feet. This water will be delivered to the Roaring Fork River consistent with the manner of
delivery of the other releases and bypasses.
8. The IGA and MOU provide that the cost of developing the exchange,particularly any NEPA
review expenses, will be paid by Aurora and not Pitkin County. Pitkin County will be
responsible for the cost of the excess capacity storage contract with the BOR to the extent water
is delivered to the Roaring Fork from the exchange and only for the proportional amount of the
water received by Pitkin County in relation to the total exchanged amount.
9. Both the Bureau of Reclamation and the City of Aurora have agreed to the terms of the IGA
and the MOU and have executed these documents in the form attached to this Resolution.
10. The Board finds that adoption of this ordinance is necessary for the immediate preservation
of the public health, safety and welfare of the citizens of Pitkin County and therefore declares
this resolution to be effective immediately upon adoption.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin
County, Colorado that it hereby adopts a Resolution approving an Intergovernmental Agreement
with the City of Aurora and a Memorandum of Understanding with the City of Aurora and the
Bureau of Reclamation Concerning Busk-Ivanhoe Water Rights and the Frying Pan exchange
and authorizes the Chair or the Chair's designee to sign the Resolution, IGA and MOU upon the
satisfaction of the County Attorney as to form, and to execute any other associated documents
necessary to complete this matter.
INTRODUCED AND FIRST READ ON THE 14TH DAY OF APRIL 2021 AND SET FOR
SECOND READING AND PUBLIC HEARING ON THE 28TH DAY OF APRIL 2021.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 15TH DAY OF
APRIL, 2021.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE 15TH
DAY OF APRIL 2021.
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 28TH DAY OF
APRIL, 2021.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE (www.pitkincounty.com) ON THE 29TH DAY OF APRIL, 2021.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE 6TH DAY OF MAY, 2021.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By itAtAA, joy c s By: 7Z 22.4. 7 �
Jeanette Jones Kelly McNicholas Kury, Chair
Deputy County Clerk
Date: May-05-2021
APPROVED AS TO FORM: MANAGER APPROVAL
5 , Eli PlAP MAU-
John Ely, County Attorney Phylis Mattice for Jon Peacock, County Manager
Revised 01-01-2021
Contract No. 174.2021
Intergovernmental Agreement between Pitkin County and the City of Aurora concerning
Ruedi Reservoir Storage
This Intergovernmental Agreement ("Agreement") is entered into this l9 day of 3
2011,between the Board of County Commissioners of Pitkin County,Colorado ("Pitkin")and e
City of Aurora,Colorado,a Colorado municipal corporation of the counties of Adams, Arapahoe,
and Douglas, acting by and through its Utility Enterprise("Aurora"). Pitkin and Aurora shall be
referred to herein individually as"Party",and collectively as"Parties".
WHEREAS Pitkin and Aurora are two of the parties to that certain Agreement and
Intergovernmental Agreement ("2018-IGA"), Effective Date August I,2018: and,
WHEREAS the 2018-IGA contemplates among other things Aurora filing for rights to
exchange water to, through and from Ruedi Reservoir located on the Fryingpan River and Aurora
has in the context of Water Division 5,Case No.2019C W3159 filed an Application for such rights;
and,
WHEREAS the 2018-IGA further contemplates among other things Pitkin's obtaining in
its name a United States Bureau of Reclamation ("BuRec") contract for If&-When storage in
Ruedi Reservoir pursuant to which Aurora might store water in Ruedi Reservoir;and,
WHEREAS Pitkin and Aurora wish to provide further details and set forth their agreement
concerning the acquisition and use of the aforesaid Ruedi Reservoir storage contact.
NOW THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the adequacy and sufficiency of
which is hereby acknowledged, the Parties hereby agree as follows:
I. Pitkin agrees to undertake and reasonably pursue the acquisition of an If-&-When water
storage contract in Pitkin's name from the BuRec for storage within Ruedi Reservoir. Any such
water storage contract will provide for use by Aurora and for Aurora's storage in, and movement
through, Ruedi Reservoir of Aurora water. Pitkin will provide Aurora the opportunity to
participate in and provide direction regarding Aurora's interests in all phases of the negotiations
and proceedings with BuRec for the water storage contract and all renewals or replacements
thereof. Up to 900 acre-feet of total storage volume will be available for Aurora's use. If Pitkin
is successful in obtaining such an if--&-When water storage contract from BuRec for storage of
any amount of water in Ruedi Reservoir, Pitkin will hold said contract for the term thereof and
promptly renew the contract as necessary to prevent expiration unless expiration is requested by
Aurora.
2. Aurora agrees it will be responsible for and will pay Pitkin for all costs of obtaining and
the annual costs for maintaining any such water storage contract up to a volume of 900 acre-feet.
However,should Aurora in its sole discretion ever decide for reasons of costs or otherwise it does
not wish to continue payments to Pitkin it may discontinue payments, except as necessary to
windup the contract, and Pitkin will seek to discontinue any such water storage contract as soon
as reasonably possible. The Parties further agree that Pitkin will be responsible to the BuRec for
the costs for obtaining and maintaining the lf-&-When water storage contract in any amount
greater than 900 acre-feet. The Parties additionally agree Pitkin will reimburse to Aurora a
proportionate amount of annual costs based upon the ratio of one-quarter of the volume of water
up to a maximum of 100 acre-feet that Aurora was able to exchange into Ivanhoe Reservoir from
its operations under WD-5, 2019CW3159 during the previous Twin Lakes Reservoir and Canal
Company Water Year to the total volumetric amount of the Pitkin Ruedi Reservoir If-&-When
water storage contract. By way of example assume Pitkin successfully obtained and maintained a
Ruedi Reservoir If-&-When water storage contract for Aurora's use in the amount of 900 acre-feet
and further assume Aurora was able to exchange 200 acre-feet of water into Ivanhoe Reservoir
during year X, then in year X+l Pitkin would be responsible for reimbursing Aurora 5.55%(200
x '/ = 50; 50 900=5.55%) of the amount of year X's annual charges.
3 Aurora represents it has on hand funds in the amount of approximately Thirty Thousand
Dollars ($30,000.00) from the refunding of funds previously paid to BuRec and such monies can
be used until their exhaustion for obtaining and initially operating the contemplated Ruedi
Reservoir If-&-When water storage contract.
4. Aurora agrees to be responsible all accounting necessary for operations under any Ruedi
Reservoir if--&-When water storage contract. Aurora agrees to provide Pitkin timely access to all
accounting materials it prepares pursuant to this Agreement. Should Pitkin make any
proportionate reimbursement of annual costs as described above,Pitkin will also reimburse Aurora
the same percentage of Aurora's accounting expenses for the subject year.
5. The "Effective Date" of this Agreement shall be the date on which the Agreement is
executed by the last Party to sign.
6. The Parties agree no portion of this Agreement should be construed or interpreted as a
transfer of title or a transfer of ownership of any water, water right or any facility for the supply,
treatment and distribution of water owned by any of the Parties.
7. The rights and duties of the Parties under this Agreement will apply to, bind and obligate
any and all successors or delegatees in interest of the Parties if any are allowed. Unless specifically
set forth herein, none of the Parties may assign their rights nor delegate their duties hereunder
without the prior written consent of the other Parties. Further none of the Parties may sell or
sublease any of benefits derived hereunder without the permission of the other Parties, which
permission individual Parties may grant or withhold at their discretion. Nevertheless, the
prohibition expressed in the previous sentence does not apply to the circumstance of a recipient
being able to sell, lease or otherwise fully use in any fashion water derived from any benefit inuring
to such recipient.
8. Notwithstanding any provisions of this Agreement to the contrary,no term or condition of
this Agreement shall be construed or interpreted as a waiver, either expressed or implied, of the
monetary limitations on liability or any of the immunities, rights, benefits or protections provided
to any Party under the Colorado Governmental Immunity Act, § 24-10-101, et seq. C.R.S., as
amended or as may be amended. The Parties understand and agree liability for claims for injuries
to persons or property arising out of the alleged negligence of any Party, their officials and
employees may be controlled or limited by said Act, as amended or as may be amended. Any
provision of this Agreement, whether or not incorporated herein by reference, shall not be
interpreted to control, limit or otherwise modify so as to limit any liability protection of any Party
pursuant to the above cited laws.
9. 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;provided that:(i)the non-performing Party gives the other Parties prompt written
notice describing the particulars of the occurrence of the force majeure; (ii) 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 (iii) the non-performing Party proceeds with reasonable diligence to
remedy its inability to perform and provides weekly progress reports to the other Parties describing
the actions taken to remedy the consequences of the force majeure event or condition.
10. The Parties agree they will not actively seek to undermine, or encourage others to
undermine,the Parties' respective interests and resources committed,compromised, dedicated or
otherwise addressed in this Agreement. For purposes of this paragraph, "Adverse Action" means
an action of a legislature, court, administrative agency, regulatory body or other governmental
entity that would cause a material adverse impact to a Party's interests or resources committed,
compromised or otherwise addressed in this Agreement. In the event that an Adverse Action is
proposed or is likely to occur as the result of an action by a Party, the Party whose interests or
resources would suffer a material adverse impact will notify the other Party. The Party affected
by the Adverse Action and the Party whose action caused it to arise will diligently meet and discuss
in good faith the potential detrimental effect of such Adverse Action, with the goal of determining
whether any action by any one of them could avoid the Adverse Action or mitigate its impact on
the affected Party. Each Party to such discussion agrees to evaluate in good faith whether it can
implement changes in its operations or undertake other efforts that would achieve this goal,and to
implement any such efforts as may be agreed to in such discussion.
11. The Parties agree to from time to time conduct meetings and conversations about water
matters of mutual benefit and of concern to them individually.
12. This Agreement shall never constitute a general obligation or other indebtedness of the
City of Aurora,Colorado("City")or a multiple fiscal year direct or indirect debt or other financial
obligation whatsoever of the City within the meaning of the Constitution and laws of the State of
Colorado or of the Charter and ordinances of the City. In the event of a default by Aurora's Utility
Enterprise of any of its obligations under this Agreement, the other Parties shall have no recourse
for any amounts owed to it against any funds or revenues of the City except for those revenues
derived from rates, fees or charges for the services furnished by, or the direct or indirect use of,
the Water System and deposited in the Water Enterprise Fund, as the terms "Water System" and
"Water Enterprise Fund" are defined in City Ordinance No. 2003-18, and then only after the
payment of all operation and maintenance expenses of the Water System and all debt service and
reserve requirements of any bonds, notes, or other financial obligations of the Utility Enterprise
secured by a pledge of the net revenues of the Water Enterprise Fund. Notwithstanding any
language herein to the contrary, nothing in this Agreement shall be construed as creating a lien
upon any revenues of the Utility Enterprise or the City. Aurora represents this Agreement has
3
been duly authorized,executed and delivered by Aurora and constitutes a valid and legally binding
obligation of Aurora, enforceable against Aurora in accordance with the terms hereof,subject only
to the terms hereof and to applicable bankruptcy, insolvency and similar laws affecting the
enforceability of the rights of creditors generally and to general principles of equity.
13. This Agreement shall never constitute a general obligation or other indebtedness of Pitkin
County, Colorado ("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 the event of a default by the County
of any of its obligations under this Agreement, the other Parties shall have no recourse for any
amounts owed to it against any funds or revenues of the County except for the County's
reimbursements described in Paragraphs 2 and 4 of this Agreement.
14. This Agreement is intended to describe the rights and responsibilities of and between the
Parties and is not intended to,and shall not be deemed to confer rights upon any persons or entities
not named as Parties or as authorized assigns, nor to limit in any way the powers and
responsibilities of the Parties, or any other entity not a Party or assign hereto.
15. This Agreement represents the entire bargain and contract of the Parties and none of the
Parties has relied upon any fact or representation not expressly set forth herein. All prior and
contemporaneous conversations, negotiations, possible alleged agreements, representations,
covenants and warranties concerning the subject matter hereof, are merged in this Agreement.
16. This Agreement may be simultaneously executed in any number of counterparts, each one
of which shall be deemed an original, but all of which constitute one and the same Agreement.
17. This Agreement may be amended, modified, changed or terminated in whole or in part
only by written agreement duly authorized and executed by the Parties.
18. Any headings or titles contained herein are intended for the convenience and reference of
the Parties only and are not intended to confine, limit or describe the scope of intent of any
provision of this Agreement.
19. This Agreement and its application shall be construed in accordance with the law of the
State of Colorado.
20. In the event of any litigation, mediation, arbitration or other dispute resolution process
arising out of or related to this Agreement each Party agrees to be responsible for its own attorney
and other professional fees, costs and expenses associated with any such proceedings.
21. This Agreement was drafted by Aurora with review and comment from the attorneys for
Pitkin. Accordingly,the Parties agree the legal doctrine of construction against the drafter will not
be applied should any dispute arise concerning this Agreement.
22. Each provision of this Agreement is intertwined with the others and is not severable unless
by mutual consent of the Parties. If any provision of this Agreement or the application thereof to
4
any person or circumstance shall,at any time or to any extent, be held invalid or unenforceable for
any reason by a Court of competent jurisdiction the Parties shall promptly meet in order to enact a
new agreement that as near as possible replicates the provisions hereof.
23. Waiver of breach of any of the provisions of this Agreement by any Party shall not
constitute a continuing waiver of any subsequent breach by said Party of either the same or any
other provision of this Agreement.
24. If any date for any action under this Agreement or its application falls on a Saturday,
Sunday or a day that is a"holiday"as such term is defined in Rule 6 of the Colorado Rules of Civil
Procedure,then the relevant date shall be extended automatically until the next business day.
25. The recitals herein are hereby incorporated into this Agreement.
26. The Parties expressly agree this Agreement will not be recorded in any Clerk and
Recorder's Office within or outside of Colorado except as may be required for the act of approving
this Agreement by any one of the Parties. All Parties expressly agree this unmodified Agreement
may be referenced, included or otherwise incorporated in any future or pending Water Court
Application or administrative proceeding before the office of the Colorado State Engineer.
27. Subject to the terms this Agreement, the Parties each affirm and represent they have the
full power and authority to execute this Agreement.
28. This Agreement is not intended and shall not be construed to create any joint venture,
agency relationship or partnership between the Parties. Neither of the Parties shall have any right
or authority to act on behalf of or bind the other Party. The agreements herein and the benefits
therefrom are solely intended for the Parties hereto and are not for the benefit of, nor may they be
claimed as benefits, by third parties.
29. The Parties agree to execute any further documents reasonably necessary to complete the
transactions provided for or contemplated by this Agreement.
30. Except as to any operational communications that the Parties may subsequently agree are
best handled through electronic or telephonic means, all ;latices, requests, demands or other
communications(collectively,"Notices")hereunder shall be in writing and given by(i)established
express delivery service which maintains delivery records requiring a signed receipt, (ii) hand
delivery or(iii)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.
To Aurora and/or B-1 Inc.: City of Aurora
1515 I East Alameda Parkway, Suite 3600
Aurora, CO 80012-1555
Attn: General Manager,Aurora Water
5
with copy to City of Aurora
15151 East Alameda Parkway, Suite 5300
Aurora, CO 80012-1555
Attn: City Attorney
with copy to Hamre, Rodriguez, Ostrander& Dingess, PC
3600 Yosemite Street, Suite 500
Denver, CO 80237-1829
Attn: John M. Dingess, Esq.
To Pitkin: Pitkin County Attorney's Office
530 East Main Street, Suite 301
Aspen, CO 81611
with copy to: Pitkin County Manager's Office
530 East Main Street, Suite 302
Aspen,CO 81611
Notices shall be effective(i) the day of delivery indicated by the delivery receipt when sent by an
established express delivery service which maintains delivery records requiring a signed receipt,
(ii) upon receipt by the addressee of a hand delivery, or (iii) the day of delivery indicated by the
Return Receipt when mailed via Certified or Registered mail, postage prepaid, Return Receipt
Requested.
31. Unless specifically identified and referenced in this Agreement no other agreement or
contract between any of the Parties or between any Party and a third party,including but not limited
to the 2018-IGA,or any water decree or any stipulation is modified or changed by this Agreement.
The Parties reaffirm the various agreements between them contained in the 2018-1GA including
but not limited to the provisions of Paragraph 20 thereof which paragraph includes among other
things provisions regarding future cooperation regarding Roaring Fork River flows.
6
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY
By. `tea WA,27La.--1 Date: 3 o A 62/L
Kell McNicholas Kury, Chao
Y Y�
ATTEST
By: it,MAA, jOVit,S Date: 30 April 2021
Jeanette Jones,
Deputy County Clerk
APPROVED AS TO FORM:
By: By: 19( US M4h(
John M. , Phylis Mattice for Jon Peacock
P. ' unty Attorney Pitkin County Manager
STATE OF COLORADO )
ss
PITKIN COUNTY )
The foregoing instrument was acknowledged before me this e" day of Apr 1 , 2021, by
Kelly McNicholas Kury, Chair
Witness my hand and official seal.
My commission expires: /z--3O Z.02
Notary Public
JULIA ELY
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20204045291
MY COMMISSION EXPIRES December 30,2024
City of rora,Colorado,
Acting and through i
Uti I y •n erprise
t/i 9 /202.1
e Coffman, Mayor Date
Attest:
` r I -tiq- 2._ 1
Kadee Rodriguez, City Clerk Date
Approved as to form for Aurora:
Chn tih6 , tc/ 2Nhe3
9/10/20 20033580
Christine McKenney Date ACS#
Client Group Manager
vsf
4111111, Dingess, Speci I Counsel D e
State of Colorado )
) ss
County of Arapahoe )
loll
The foregoing instrument was acknowledged before me this ( °1 day of ,,n ,2020,by
Mike Coffman, Mayor, acting on behalf of the Utility Enterprise of the City of Auro a, Colorado.
Omaii4j.j2efienerefas.A..._
Witness my hand and official seal.
Notary Public
My commission expires: o s/20/2.0 2-
(Seal) CASEY LEE ROSSN/AN
NOTARY STATE OF COLOORADO
NOTARY ID 20204017584
MY COMMISSMY COMMISMON EXPIRES o$ ON
8
Contract No. 175.2021
QP. 7 TyF, United States Department of the Interior ton
O - � A
.) '` h x BUREAU OF RECLAMATION
Eastern Colorado Area Office
-.11 .1.,-- 9
gRCH 3.,-8 A 11056 West County Road 18E IW
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Loveland, CO 80537-9711
IN REPLY REFER TO:
07/21/2021
EC-1310
2.2.3.10
SENT VIA ELECTRONIC MAIL ONLY
Mr. Thomas Simpson
Water Resources Supervisor
City of Aurora
tsimpson@auroragov.org
Subject: Contributed Funds Memorandum of Understanding No. 20AG650119—Request of a
Contract and Associated Environmental Compliance
Dear Mr. Simpson:
A fully executed copy of Memorandum of Understanding No. 20AG650119 (MOU) is enclosed.
The advance payment of$50,000 has been received. Pursuant to this MOU, a minimum balance
of$10,000 will be maintained. The Bureau of Reclamation will notify City of Aurora whenever
the balance falls below the minimum balance and request additional funds.
We appreciate your continued cooperation. Please contact Will Ross at (970) 461-5452 or
wross@usbr.gov if you have any questions. For the hearing impaired or hard of hearing, please
call the Federal Relay System at (800) 877-8339.
Sincerely,
JEFFREY Digitally signed by
JEFFREY RIEKER
RIEKER Date:
e:2021.07.21 13:31:36
Jeffrey Rieker
Area Manager
Enclosure
cc: jdingess@hrodlaw.com(w/encl)
JohnEly@pitkincounty.com(w/encl)
htoua 20AG650119
U.S. Department of the Interior
Bureau of Reclamation
Eastern Colorado Area Office
CONTRIBUTED FUNDS MEMORANDUM OF UNDERSTANDING
No. 20AG650119 BETWEEN
BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
CITY OF AURORA, COLORADO,
ACTING BY AND THROUGH ITS UTILITY ENTERPRISE
AND
THE UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
for the
Request of a Contract
and Associated Environmental Compliance
I. PARTIES
This Memorandum of Understanding (MOU) is entered by and between the United States
Department of the Interior, Bureau of Reclamation(hereinafter referred to as
"Reclamation"), the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
(hereinafter referred to as"Pitkin County"), and CITY OF AURORA, COLORADO,
ACTING BY AND THROUGH ITS UTILITY ENTERPRISE (hereinafter referred to as
"Aurora")each referred to individually as `Party' and sometimes collectively referred to as
"Parties." This MOU identifies the roles, work and funding responsibilities for evaluating
and executing a request for a contract.
II. AUTHORITY
Reclamation's authority for the acceptance of non-federal funds identified in this MOU is
provided through the following authorities: Reclamation Act of 1902 (Act of June 17, 1902;
32 Stat. 388),as amended and supplemented; Reclamation Extension Act (Act of August 13,
1914;38 Stat. 686), Fact Finders Act of 1924, Subsection N (Act of December 5, 1924; 43
Stat.704),The Omnibus Adjustment Act(Act of May 25, 1926; 44 Stat.636), Reclamation
Project Act of 1939 (Act of August 4, 1939; 53 Stat. 1187), Title III of the Act of July 3,
1958 (72 Stat. 320), and the Act of August 16, 1962 (76 Stat. 389).
III. PURPOSE
The purpose of this MOU is for Reclamation to evaluate the Pitkin County's request for a
900-acre-foot (AF) contract to utilize excess capacity storage in Ruedi Reservoir.
Pursuant to the 2018 Agreement and Intergovernmental Agreement between Aurora,
Colorado River Water Conservation District, Basalt Water Conservancy District, Eagle
MOu#20A0650119
County, Pitkin County, Grand Valley Water Users Association, Orchard Mesa Irrigation
District, and the Ute Water Conservancy District, Aurora may adjudicate an exchange and
capture for subsequent use deliveries of a portion of its Twin Lakes water placed in the
Roaring Fork River basin either near Grizzly Reservoir or near Lost Man Creek.
Accordingly Aurora began the adjudication of a right allowing the exchange of up to 900 AF
of the Twin Lakes Water over which Aurora has maintained dominion and control in any one
year from the confluence of the Roaring Fork and Fryingpan Rivers upstream on the
Fryingpan River to Ruedi Reservoir and an additional exchange, as a component subset of
the 900 AF,up to 450 AF in any one year from Ruedi Reservoir to Ivanhoe Reservoir located
upon Ivanhoe Creek, as further described in Division 5 water right application 2019CW3159.
Water from these exchanges will be used by Aurora for direct flow and storage for irrigation,
domestic,commercial, industrial, municipal and all beneficial uses in or for the benefit of
Aurora's current and future service areas served by its municipal water supply and water
reuse systems and any areas within the South Platte River Basin including areas served by its
connections with other systems, and by any current or future water supply contracts or
obligations of Aurora. Aurora may also use the water to meet its replacement or delivery
obligations in Water Division 5.
Water from these exchanges is also intended for use in the Roaring Fork River Basin below
the confluence of the Roaring Fork River and Maroon Creek for beneficial uses as may be
allowed consistent with other uses, including but not limited to the following purposes: (1)
instream flow purposes in the Roaring Fork River; (2) delivery to the Pitkin County
Recreational In-channel Diversion water right; and(3)pursuant to future Water Court
approval.
Reclamation makes no commitment that such approval will be granted. Prior to a final
decision on this contract, Reclamation will complete an environmental review process to
assure compliance with the National Environmental Policy Act (NEPA),Endangered Species
Act (ESA), National Historic Preservation Act(NHPA) and other applicable laws. If
Reclamation approves a contract, Reclamation will include conditions in such contract to
implement any applicable mitigation measures considered necessary, as determined through
the environmental review process. Through the NEPA compliance review process, the
significance of potential impacts of the proposed contract will be determined, The NEPA
documentation will consist of completion of an environmental assessment(EA),as
determined by Reclamation. In the event an environmental impact study (EIS) is warranted,
this agreement will require amending or replacement if Pitkin County and Aurora jointly
decide to proceed.
This MOU establishes the funding mechanism by which Aurora shall contribute funds to
Reclamation for the purposes of the completion of work outlined under Section IV. This
includes, but is not limited to, the funding of a third-party environmental contractor,if any.
Reclamation's objective is to complete the required environmental compliance and reach a
final decision on the proposed contract amendment within a schedule and budget determined
by Reclamation after consultation with Aurora. Reclamation will diligently attempt to
2 of 1)
MOU#20AG650119
adhere to the schedule and budget but cannot guarantee that the contract will be completed
within the schedule and budget so determined.
IV. ROLES AND RESPONSIBILITIES
A. Reclamation's responsibilities include the following:
I. Serve as the source of specific expertise in compliance with Federal laws and
regulations.
2. Participate in technical and/or negotiation sessions concerning the proposed
contract.
3. Complete all internal documentation necessary to obtain authority to negotiate and
execute the necessary contract.
4. Designate a point of contact for all matters related to the contracting process, as well
as compliance with NEPA and other applicable laws, environmental analysis and
document preparation.
5. Direct the process, participate in and have final approval for all matters related to
compliance with NEPA and other applicable laws, environmental analysis and
document preparation for the proposed contract; this includes but is not limited to
the following:
a. Participate in development of, independently evaluate, and have final approval
of information included in the draft and final NEPA documents and studies that
are conducted to support the NEPA analysis.
b. Approve the no action and all action altemative(s) and the purpose and need for
action.
c. Review and confirm the accuracy and completeness of significant issues
identified related to the action alternative(s).
d. Exercise final authority concerning the scope of the analysis,select the
alternatives for evaluation, and determine the level of NEPA compliance is
required. Independently evaluate and review information provided by Pitkin
County and Aurora and others to prepare the draft and final EA or EIS.
e. Conduct all public and agency involvement and consultation efforts and make
final determinations regarding what and how the information gleaned from
those efforts will be incorporated into the NEPA and other related
environmental processes(Endangered Species Act, Fish and Wildlife
Coordination Act,National Historic Preservation Act,etc.).
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f. Make the final decision on the proposed federal action, and finalize the decision
document, which will be a determination of a Finding of No Significant Impact
(FONSI), or requires the preparation of an Environmental Impact Statement.
6. In the event that a third party environmental contractor is used for NEPA, then the
following applies:
Be the lead Federal Agency pursuant to 40 C.F.R. 1508.16 for the purpose of
completing environmental compliance on the proposed actions. As the lead Federal
Agency,Reclamation will take the actions listed here consistent with C.F.R 1501.5
and 1501.6.Therefore,Reclamation will direct,participate in and have final
authority over all matters related to compliance with the NEPA and other applicable
laws,environmental compliance and document preparation.
This includes, but is not limited to:
a. Manage the request for proposal process, determine who shall be on the
selection committee, and have final approval for the selection of the
environmental contractor(s) who will assist in the NEPA process and
preparation of the NEPA document(s).
b. Provide Pitkin County and Aurora and the environmental contractor(s)with
regulations, handbooks and other guidance to be used for compliance with
NEPA, ESA,NHPA and other applicable laws.
c. Exercise final authority concerning the scope of the analysis, select the
alternatives for evaluation, and determine what Ievel of NEPA documentation is
required. Independently evaluate and review information provided by other
persons that are used to prepare the NEPA compliance document.
d. Approve all aspects of the scoping process, including attendance at meetings,
approval of invited meeting participants, and determination of how meetings are
set up and conducted, in accordance with 40 C.F.R. 1501.7. Finalize the
document mailing list with assistance from Pitkin County and Aurora.
e. Approve and file all of the necessary notices for the NEPA process including
Federal Register and other notice(s) if necessary;and issue press releases for
public meetings, etc.
f. Approve the no action alternative, all action alternatives, and the purpose and
need for the proposed action.
g. Review and confirm the accuracy and completeness of the list of significant
issues related to the proposed action.
h. Participate in development of, independently evaluate, and have final approval
of information included in the draft and final NEPA documents and studies that
are conducted to support the NEPA analysis.
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i. Approve any draft and final environmental documents.
j. If determined appropriate, disseminate to the public any scoping documents and
the draft and final environmental documents,under Reclamation letterhead,
with the comments submitted to Reclamation.
k. Retain full management of the environmental contractor, who shall not share
any information with other parties, without Reclamation approval or direction.
As long as the NEPA compliance review process remains at the EA level
Reclamation contemplates it will be able to allow the environmental contractor
to share and discuss information with Pitkin County and Aurora throughout the
NEPA process.
1. Conduct ESA/Fish and Wildlife Coordination Act and NI-IPA consultation
activities utilizing information and reports compiled and/or developed by
Reclamation, Pitkin County,Aurora, cooperating agencies, and/or
environmental contractor(s) as applicable.
m. Review all existing environmental compliance completed by other federal and
state agencies for connected or related actions including but not limited to
Bureau of Land Mangement, Fish and Wildlife Service and the Colorado State
Historic Preservation Office. Where possible, tier to existing EIS,
programmatic biological opinions, and individual consultations.
n. Make final determinations over how comments are addressed and changes to the
draft NEPA document that is necessary to finalize the document.
o. Retain all original public comments and supply copies of comments to Pitkin
County, Aurora, and the environmental contractor, if applicable.
p. Make the final decision on the proposed federal actions and finalize the decision
document,which will be a Categorical Exclusion Checklist, a FONSI,or a
requirement to prepare an EIS.
7. Draft the necessary documents including the proposed contract for the contract
related actions.
8. Perform any other activity, or activities, that pertain to the purpose of this MOU.
B. Pitkin County and Aurora Responsibilities include the following,which are joint
responsibilities unless otherwise noted:
I. Participate in technical discussions and negotiations sessions, as needed, with
Reclamation concerning the proposed contract.
2. Provide documentation and information that is not otherwise confdential to either
Pitkin County or Aurora requested by Reclamation for the internal documentation
and analysis.
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3. Designate a point of contact for all matters applicable to the contract and
compliance with NEPA and related laws, environmental analysis and document
preparation.
4. In the event that an environmental contractor is used to assist in preparing the
NEPA compliance document, then the following applies:
If requested by Reclamation, cooperate in the selection of the environmental
contractor and hire Reclamation's selected environmental contractor to prepare
technical information, draft and final NEPA and related environmental compliance
documents for independent review and approval by Reclamation. Ensure that the
environmental contractor hired by Aurora:
a. Follows the Council on Environmental Quality's NEPA implementing regulations
(40 CFR Parts 1500-1508), Reclamation's draft NEPA handbook, and other
applicable guidance to be provided by Reclamation in the preparation of a draft EA,
if determined appropriate.
b. Participates in developing and drafting a Public Involvement Plan for
Reclamation's review and approval.
c. Utilizes environmental data collected by Reclamation, Pitkin County, Aurora,
consultants, cooperating agencies, and environmental contractor(s)to prepare
reports and analyses necessary for the preparation of the draft and final
environmental documents, as applicable.
d. Prepares all materials such as scoping documents and draft and final
environmental documents, for public and agency distribution as requested by
Reclamation. Distribution shall be under Reclamation letterhead with the comments
submitted to Reclamation.
e. Ensures that the release of any information,including but not limited to
environmental data, analyses,reports,and evaluations shall be prepared through or
with the approval of Reclamation.
f. Provides Reclamation with paper and electronic versions of any technical
documents requested by Reclamation.
g.Provides a camera-ready copy of the draft and final environmental documents
(EA, biological assessment) and a draft decision document (FONSI) approved by
Reclamation. All documents will be provided in both Microsoft Word format and
optical character recognition (OCR) PDF format. The PDF version will meet
Section 508 accessibility standards.
h. Provides for the printing of all draft and final environmental documents for public
review. Provides an adequate number of printed copies and CDs of the draft and
final environmental documents and CDs of the Administrative Record that the
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contractor compiled throughout the process. Reclamation will determine the
adequate number of copies at the time of publication.
5. Cooperate with Reclamation in developing reasonable alternatives that meet the
project purpose and need.
6. Prepare a proposed document mailing list.
7. In the case of ESA Section 7 compliance,participate in the process as an applicant.
C. Aurora Additional Responsibilities include the following:
1. Provide funding in advance to Reclamation for the processing of the contract
request and related NEPA compliance.
D. Responsibilities common to all Parties:
1. Maintain confidentiality of sensitive information such as cultural resource reports
and threatened and endangered species location information and do not release to
the public, to the extent permitted by federal and Colorado law,whichever is more
restrictive.
2. Attend meetings as necessary with the public, federal, state,regional and local
agencies for the purposes of facilitating communication and receiving comments, as
may be necessary,desirable,or required by law, and insofar as such meetings are
relevant to the subject environmental compliance and proposed contract.
3. Develop a schedule to accomplish the tasks identified in this MOU from initiation of
the Scoping Process to finalization of the NEPA decision document. The Parties
acknowledge and understand that the schedule developed is a target or goal and that
there are many influences outside the control of the signatories to this MOU that
could affect progress. The Parties will work to resolve any issues that could delay
the process and will meet periodically to update and revise the schedule as
appropriate.
V. FEDERAL FUNDING
There is no federal funding associated with the work covered by this MOU.
VI. NON-FEDERAL FUNDING
Aurora will advance funds to Reclamation for the work associated with this MOU.
VII. ADVANCEMENT OF FUNDS
Aurora shall pay Reclamation for all its costs incurred as a result of activities performed
through this MOU. In accordance with Anti-Deficiency Act(31 U.S.C. 1341 et seq.), funds
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must be provided to Reclamation in advance of activities performed by Reclamation
personnel. Aurora shall advance as set forth in this MOU to Reclamation its share of the
funds necessary to accommodate Reclamation's expenditures for the work defined in Section
IV, above.
Cost for performance of work under this MOU is estimated to be $1 00,000. It is understood
that this estimate is preliminary, and the actual cost may be more or less than estimated.
Payment shall be made by Aurora in an initial advance payment of$50,000 prior to work
being initiated. A minimum balance of$10,000 will be maintained in the MOU account to
ensure a positive account balance. Unless Reclamation and Aurora agree otherwise,
whenever the balance falls below the minimum and, provided this MOU remains in effect,
Reclamation shall notify Aurora of the need for additional funds and Aurora shall promptly
submit an additional advance to return the balance to$20,000. If Aurora fails to provide
additional funds as requested, Reclamation will cease work until the additional funds are
collected. It is acknowledged by the Parties that Pitkin County and Aurora may terminate
this MOU at any time if they jointly notify Reclamation of any such termination.
Any funds that have been advanced and not used shall be returned to Aurora without interest
within 120 days of the completion of the work under this MOU or termination of the MOU.
VIII. TERM OF MOU
Subject to the termination provisions below,this MOU will remain in effect until execution
of the proposed contract amendment,or until there is a request to terminate it, or at 5 years
after execution of this Agreement, whichever occurs first.
This Agreement may be terminated under any of the following conditions:
1. By written mutual agreement of all Parties.
2. By 30-day written notice of any Party.
3. A determination by Reclamation that a contract will not be issued.
This Agreement may be extended or amended at any time by mutual agreement of all Parties.
IX. REPORTING
Reclamation will provide a semiannual status report to Aurora showing a summary of
expenditures charged against funds advanced and to-date expenditures. Aurora will be
entitled to challenge any expenses that it deems to be excessive or unreasonable. If a
challenge is asserted, Reclamation and Aurora will promptly meet to resolve the concerns
and agree on an appropriate adjustment, if any.
X. REQUIRED CLAUSES
During the performance of this MOU, the Parties agree not to discriminate against any
employee or applicant for employment because of race,color,religion, sex,sexual
orientation,gender identity,disability, or national origin. Pitkin County and Aurora will take
affirmative action to ensure that applicants are employed, and that employees are treated
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during employment, without regard to their race, color, religion, sex, disability, sexual
orientation, gender identity, or national origin as provided by the terms of Executive Order
11246.
No member or delegate to Congress,or resident Commissioner, shall be admitted to any
share or part of this MOU or to any benefit arising from it. However, this clause does not
apply to the MOU to the extent that this MOU is made with a corporation for the
corporation's general benefit.
XI. CONFIDENTIALITY
To the extent allowed by Federal and Colorado law, whichever is more restrictive, Pitkin
County and Aurora shall not release any information prepared by any Party, subcontractor, or
consultant under or pursuant to this MOU, and shall keep such information confidential,until
Reclamation specifically approves releasing such information to the public.
XII. KEY OR RESPONSIBLE PERSONNEL
The following points of contact will be the representatives for this MOU.
Reclamation's Representative:
Eastern Colorado Area Office
William Ross, Repayment Specialist, (970)461-5452
Bureau of Reclamation, Eastern Colorado Area Office
11056 West County Road 18E
Loveland, CO 80537
wrossnu,usbr.gov
Aurora's Representative:
Thomas Simpson
Water Resources Supervisor
City of Aurora
17850 Road JJ
Rocky Ford, CO 81067
719-254-7984
tsimpson(a,auroragov.org
Pitkin County's Representative:
John Ely
Pitkin County Attorney
530 E Main Street, Ste 301
Aspen,CO 81611
970-920-5190
JohnEly@pitkincounw.com
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XIII. SIGNATURE PARTIES
IN WITNESS WHEREOF, the Parties have executed this MOU and agree to the terms and
conditions on the date and the year written below.
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Digitally signed by JEFFREY
JEFFREY RIEKER
RIEKER
By, Date:2021.07.21 13:31:15-06'00'
Jeffrey Rieker, Area Manager
Eastern Colorado Area Office
Date:
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY
By: Li J )74-A vte#v Date: 3 ° oa/
Kelly McNicholas Kury, Chair
ATTEST
By:
Jeanette Jones
Deputy County Clerk
APPROVED AS TO FORM:
By: By:
Jo . Ely Phylis Mattice for Jon Peacock
itkin Coun orney Pitkin County Manager
MOU#20A0650119
CITY OF AURORA, COLORADO,
ACTING BY AND THROUGH ITS
UTILI Y ENTERP SE
2/16/21
Date:
Mike Coffman, Mayor �.
ATTEST:
A .2, "4°� 2
Date: /16/2021
City ler)
APPROVED AS TO FORM FOR AURORA:
2/8/21
Chi-1st/He McKenney
Christine McKenney Date ACS #
Senior Assistant City ttomey
ce. .;
Jo Dingess, pec;if'ounsel Date
STATE OF COLORADO )
} ss
COUNTY OF ARAPAHOE)
The foregoing instrument was acknowledged before me this I6 4Aday of )41?i/
202$, by Mike Coffman, Mayor,acting on behalf of the Utility Enterprise of the City of
Aurora,Colorado. , ,[
Witness my hand and official seal.
NotarY'Public
My commission expires: A1A-Y
Cheryl Lee Daniels
Notary Public
(STAMP) State of Colorado
Notary ID 20014011257
My Commission Expires May 23,2021
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