HomeMy WebLinkAbout20133066.tiffRESOLUTION
RE: APPROVE AGREEMENT FOR RIGHT TO ENTER TO OBTAIN SOIL AND/OR
GRAVEL FOR ROAD PURPOSES AND AUTHORIZE CHAIR TO SIGN - SCOTT
KOSKIE
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 the Right to Enter to
Obtain Soil and/or Gravel for Road Purposes 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 Scott Koskie, 14570 N. County Road 7, Wellington, Colorado 80549, with
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 the Right to Enter to Obtain Soil and/or Gravel for Road
Purposes 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 Scott Koskie
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 30th day of October, A.D., 2013.
BOARD OF COUNTY COMMISSIONERS
WELDCOLORADO
ATTEST:
Weld County Clerk to the Board
BY:
Deputy
APPROVE
my •rney
NOV 15 2013
Date of signature:
is . Garcia, Chair
t
an P. Conway
ke Freeman
arbara Kirkmeyer,
2013-3066
EG0068
MEMORANDUM
TO: Cleric to the Board DATE: October 25, 2013
FROM: Clay Kimmi, Public Works Department
SUBJECT: BOCC Agenda
Right to Enter Agreement to Obtain Soil and/or Gravel for Road Purposes with Scott Koskie for
leased area to be mined for gravel on the Koski Pit.
One Agreement is attached.
M:\Francie\AGENDA memos\AgendaClayKimmi. docx
2013-3066
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/ WORK SESSION REQUEST
RE: Koskie Pit, Lease agreement and permits
DEPARTMENT: Public Works DATE: October 14.2013
PERSON REQUESTING: Clay Kimmi. Stephanie Arries. and Dave Bauer
Brief description of the problem/issue:
Public Works is always searching for potential properties that has an aggregate resource that can be mined in order to make road base
and construction materials. Public Works has found a property owner willing to lease land to the County. Geotechnical data shows
that the property contains aggregate resources that are suitable for producing construction materials for road projects. Construction
materials obtained from this site would be used in the north and northeast portions of the County. The property proposed for lease is
owned by Scott Koskie and is located on the south side ofCR120 and is approximately 1 mile east of CR 23. The legal description of
the parcel is "East V2 of Section 12, T10N, R67W of the 6th P.M." and the lease area encompasses approximately 41 acres of the 321.4
acre parcel. Public Works is currently reclaiming the Lehr Pit which is directly north of this property. See attached map.
The attached agreement has been negotiated with Mr. Koskie. The lease agreement is for 12 years with an option to renew the lease
for one 5 year term.
Mr. Koskie agrees to provide the County with a right to enter, access and/or use the leased area; grant right for County to bring in
appropriate equipment for mining; provide a haul route from the public road; not interfere with mining activity; and cooperate with the
County in acquiring -necessary permits.
The County proposes to pay Mr. Koskie a royalty of $0.75/ton of material mined, construct and maintain the haul route, provide 100
tons of gravel each year that crushing is occurring for owners use, obtain all necessary State, County and Federal permits; and install a
cattle guard and wire fencing. The proposed terms of the agreement are the standard terms that have been used for the past two
contracts with landowners on gravel mines.
The permits required for this mining activity are proposed to be obtained by the County and include a State Division of Mining,
Reclamation, and Safety (DRMS) permit and a Weld County Use by Special Review (USR) permit.
Mr. Koskie has reviewed the agreement and found it to be acceptable to him. He has already signed the agreement and is awaiting a
final decision from the Board regarding the agreement and a potential gravel pit on his property.
What options exist for the Board? (Include consequences, impacts, costs, etc. of options)
1) Accept the agreement and direct staff to pursue the appropriate permits.
2) Don't accept the agreement and don't pursue a State DRMS permit or County USR permit. The County will not be able to
obtain gravel from this site.
Recommendation:
Accept the agreement and authorize Public Works to obtain the necessary State DRMS and County USR permits.
Approve
Recommendation
William F. Garcia, Chair
Douglas Rademacher
Sean P. Conway
Mike Freeman
Barb Kirkmeyer
Schedule
Work Session
Other/Comments:.
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RIGHT TO ENTER AGREEMENT
TO OBTAIN SOIL AND/OR GRAVEL
FOR ROAD PURPOSES
THIS AGREEMENT is made and entered in to this _ day of , 2013, by and
between the Board of County Commissioners of the County of Weld, State of Colorado, 1150
"O" Street, Greeley, Colorado 80631, (hereinafter referred to as "County"), and Scott Koskie,
14570 N. County Road 7 Wellington, Colorado 80549, (hereinafter referred to as "Owner")
WITNESSETH:
WHEREAS, Owner is possessed of certain property located at:
East'/ of Section 12, Township 10 North, Range 67 West of the 6t° P.M.,
(hereinafter referred to as "Owner's Property"), and
WHEREAS, County intends to engage in one or more road improvements project(s)
within Weld County, (hereinafter referred to as the "Project") and is in need of sand, soil, and/or
gravel in order to complete said Project, and
WHEREAS, Owner's Property contains sand, soil and/or gravel which County deems
appropriate for use in the Project and which Owner desires to sell to County, and
WHEREAS, Owner and County desire to enter into a Lease Agreement to permit County
to enter onto a designated portion Owner's Property (hereinafter referred to as the "Leased
Area") for the purpose of extracting the soil/gravel.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, County and Owner agree as follows:
1. Property Description: Owner's Property which is subject to the terms of
this Agreement is the real property described and shown in the attached Exhibit "A", which
consists of a legal description, photographs, and maps. The Leased Area to be mined for gravel is
depicted in the attached Exhibit "B" by a diagram and photograph. (Exhibits A and B are
attached hereto and made a part hereof by this reference.
2. Term of Agreement: The Term of this Agreement shall begin on the date
of approval of the Section 112c Permit from the Colorado Division of Reclamation Mining and
Safety (hereinafter "DRMS") for the mining of Owner's Property, and shall continue through
and until the date of the final release of the permit by DRMS. At the time of the execution of this
Agreement the parties expect that all mining and removal of soil, sand and/or gravel shall be
completed within twelve (12) years of the date of the execution of this Agreement. If additional
time is needed to complete the required mining activities, the parties agree that County mining
activities may be extended for one additional period of up to five (5) years upon the same terms
and conditions. The County shall provide 30 days written notice that the extension period will
be initiated. The Owner shall acknowledge the extension notice in writing. The parties
Page 1 of 5
specifically acknowledge that a temporary or permanent cessation of mining activities does not
terminate the Agreement; the Agreement extends to the DRMS release of the permit.
3. Royalty Payments: County shall pay to Owner a royalty of seventy-five
cents ($0.75) per ton for all soil/gravel material removed from the Leased Area described in
Paragraph 1 above. Said royalty payment shall be made on or before the last day of the month
following the month after which the soil, sand and/or gravel is removed.
4. Owner's Obligations: Owner agrees to the following terms and
conditions:
a. Owner grants to County the exclusive right to enter access and/or use the Leased
Area throughout the Term of this Agreement for all purposes related to the
removal, processing and crushing of soil, sand and/or gravel and to conduct
reclamation activities following the cessation of mining activities.
b. Owner grants to County the right to bring equipment onto the Leased Area which
is deemed necessary by County to remove the soil, sand and/or gravel and to
crush said gravel as required by County for its Project(s), and also to complete its
reclamation activities after mining activities have ceased.
c. Owner shall provide land for a haul route from a public road directly to the
Leased Area; the haul route is depicted on Exhibit B and has been accepted by
both parties.
d. Owner shall not engage in any activity on the Leased Area throughout the Term
of the Agreement which interferes with County's mining activities, with its efforts
to secure a mining permit, or with its efforts to reclaim the property following the
cessation of mining activities without the express written consent of County.
e. Owner shall cooperate with County in its efforts to secure all required mining
permits, and agrees to execute any documents required to be executed by the
Owner of the mined property in relation to said permits. Any expenses associated
with the permitting process shall be borne by County.
5. County's Obligations: County agrees to the following terms and
conditions:
a. County shall construct and maintain the haul route described in Paragraph 4.c.
above in good condition and shall obliterate said haul route upon the termination
of this Agreement, if requested to do so by Owner.
b. County shall maintain accurate records of all soil, sand and/or gravel removed
from the property described in Paragraph 1 above, and shall make said records
available to Owner for inspection in its offices located at 1111 H Street, Greeley,
Colorado, from 8:00 a.m. until 5:00 p.m., Monday through Friday, except during
all holidays recognized by Weld County. Each royalty payment made to Owner
shall be accompanied by a statement of the amount of gravel mined by County
since the close of the previous mining period for which the previous royalty
payment was made.
c. During each year in which the County conducts crushing activities on the leased
area, the County agrees to provide up to one hundred (100) tons of gravel on or
before the 31st day of December to Owner for its exclusive use, commencing
upon the first year of operation by County. The parties agree that the gravel
Page 2 of 5
provided to Owner shall be of the same quality and type as that removed by the
County. Owner agrees that prior to the removal of the materials, the County shall
be consulted to determine from which stockpile on the leased area the gravel shall
be removed. If County does not conduct crushing activities during a year, no
gravel shall be provided to Owner. County's responsibility to provide gravel to
Owner shall cease upon County's written Notice to Owner that its mining
activities have ceased and the reclamation process has commenced.
d. County shall be responsible for obtaining all necessary State, County and Federal
permits, which shall not include permits for asphalt and/or concrete batch plants.
County shall pay the entire cost of necessary surveying for the mining operation.
County shall consult with Owner during the permitting process and shall exercise
due diligence in obtaining all required permits in a timely fashion. County shall
conduct the mining and extraction activities in compliance with the terms of each
permit, specifically including the permit issued by the Colorado Division of
Reclamation, Mining and Safety.
e. County shall be responsible for the construction and maintenance of any
improvements required by the terms of the permit. Following cessation of its
mining activities, County shall remove the improvements, unless Owner requests
that such improvements remain. If County constructs a temporary entrance/exit on
the leased area, said temporary entrance/exit may be left intact for Owner's use
only if an access permit can be issued to Owner consistent with Weld County
policy concerning such permits.
f. County shall install a cattle guard at the access point onto CR 120. Additionally,
the County shall install a gate constructed of wire fencing of sufficient width to
accommodate the Owner's farming equipment. The County will coordinate with
the Owner to ensure that the gate is of sufficient width. At the conclusion of
mining, the cattle guard will be left in place at the request of the Owner.
County shall notify Owner thirty (30) days prior to the commencement of mining
activities
h. County shall notify Owner thirty (30) days prior to the cessation of mining
activities. The term of this Agreement, however, will extend to the date of the
release of the permit by the DRMS.
i. If Owner provides his social security number to the Weld County Controller,
County will annually issue to Owner a 1099 to report the royalties paid and/or
taken in kind pursuant to the terms of this Agreement.
g.
6. Notices: All notices of Termination or other demand by Owner or by
County shall be in writing and sent by Certified Mail, Return Receipt, or by E-mail with a
Confirmation of Receipt as follows:
OWNER:
ADDRESS:
EMAIL ADDRESS:
Scott Koskie
14570 N. County Road 7
Wellington, Colorado 80549
scottkoskie@aol.com
Page 3 of 5
COUNTY: David Bauer, Director of Public Works
ADDRESS: P.O. Box 758
Greeley, Colorado 80632
EMAIL: dbauer(@co.weld.co.us
7. Non -Assignment: This Agreement shall not be assigned by either party
without the express written consent of the other party.
8. Recitals: Each of the Recitals set forth in the introduction of this Agreement
forms a part of and expressly is incorporated into this Agreement of the parties.
9. Approval by the Board of County Commissioners of Weld County: This
Agreement shall not be valid until it has been first approved by the Board of County
Commissioners of Weld County, Colorado or its designee.
10. Governmental Immunity: No term or condition of this contract shall be
construed or interpreted as a waiver, express or implied, of any of the immunities, rights,
benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-
101 et seq., as applicable now or hereafter amended.
11. No Third Party Beneficiary 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 undersigned parties receiving services or benefits under this
Agreement shall be an incidental beneficiary only.
12. Entire Agreement/Modifications. This Agreement contains the entire
agreement between the parties hereto and supersedes any other agreements concerning the
subject matter addressed in this Agreement. No modifications, amendments, novations, renewals
or other alteration of or to this Agreement shall be deemed valid or of any force or effect
whatsoever, unless mutually agreed upon in writing by the parties to this Agreement. This
Agreement may be changed or supplemented only by a written instrument signed by both parties.
13. Acceptance not Waiver. No breach of any term, provision or clause of this
Agreement shall be deemed waived or excused, unless a waiver or consent shall be in writing
and signed by the party claimed to have waived or consented to the breach. Any consent by any
party hereto, or waiver of, a breach by the other party, whether express or implied, shall not
constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
14. Interruptions. Neither party to this Agreement shall be liable to the other for
delays in delivery or failure to deliver or otherwise to perform any obligation under this
Agreement, where such failure is due to any cause beyond its reasonable control, including but
not limited to Acts of God, fires, strikes, war, flood, earthquakes or Governmental actions.
Page 4 of 5
15. No Conflict. During the tern of this Agreement, no employee of Owner nor any
member of Owner's family shall serve on a County Board, committee or hold any such position
which either by rule, practice or action nominates, recommends, or supervises County's activities
of Owner's property.
16. Severability. If any term or condition of this Agreement shall be held to be
invalid, illegal, or unenforceable, this Agreement shall be construed and enforced without such
provision, to the extent that this Agreement is then capable of execution within the original intent
of the parties.
17. Attorneys Fees/Legal Costs: In the event of a dispute between County and
Owner, concerning this Agreement, the parties agree that County shall not be liable to or
responsible for the payment of attorney fees and/or legal costs incurred by or on behalf of
Owner.
18. Fund Availability: Financial obligations of the County payable after the current
fiscal year are contingent upon funds for that purpose being appropriated, budgeted and
otherwise made available. By execution of this Agreement, County does not warrant that funds
will be available to fund this Agreement beyond the current fiscal year. No portion of this
Agreement shall be deemed to create an obligation on the part of County to expend funds not
otherwise appropriated or budgeted for. County will not engage in mining and/or crushing
activities unless funds for such activities have been appropriated, budgeted or otherwise been
made available for such activities.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first
stated above.
Owner Signature:
Printed Name: Scott Koskie
SGO1 _ l D,`5KIE
ATTEST:
Weld County Clerk to the Board
BY:
Deputy Clerk to the':oard
Date: / %
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
F. Garcia, Chair
OCT 302013
Page 5of5
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EXHIBIT A
SPECIAL WARRANTY DEED
THIS DEED, Made this at4 day of October, 2010, between Scott D. Koskie,
14570 N. County Road 7, Wellington, Colorado 80549 and Peggy J. Koskie,
2212 Creststone Court, Fan Collins, Colorado 80525 of County of Lorimer,
State of Colorado, GRANTORS and Scoff D. Koskie , whose legal address is
14570 N. County Road 7, Wellington, Colorado 80549, of County of Latimer,
State of Colorado, GRANTEE.
WITNESSE FI, That the GRANTOR for and in consideration of the parties' separation agreement in their divorce
and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, have
wanted, bargained, sold and conveyed, and by these presents do grant, bargain, sell, convey, and conform, unto the
GRANTEE(s) his heirs and assigns forever, all the reat property, together with improvements, if any, situate, lying
and being in the County of Weld and State of Colorado, described as follows:
The E112 of Section 12, Township 10 North, Range 67 West of the 0 P.M., County of Weld, State
of Colorado
Scott D. Koskie does hereby reserve an undivided one -quarter interest in and to all of the coal, oil, gas,
and other minerals in and under, and what may be produced from the above described lands; and, the
Grantors have by Mineral Deed, conveyed an equal one quarter interest to Peggy .1. Koskie per the parties'
agreement.
TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in any wise
appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all
the estate, right, title, interest, claim and demand whatsoever of the GRANTOR(s), either in law or equity, of, in and
to the above bargained premises, with the hereditaments and appurtenances.
TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the
GRANTEE(s), his heirs and assigns forever. And the (iRAN'l'OR(s), for themselves their heirs and personal
representatives or successors, do covenant and agree that they shall and will WARRANT AM) FOREVER
DEFEND the above -bargained premises in the quiet and peaceable possession of the GRANTOR(s) his heirs and
assigns, against all and every person or persons claiming the whole or any part thereof, by through or under the
GRANTOR(s).
IN WITNESS WHEREOF, the GRANTOR(s) have executed this deed on the dates set forth above.
Scott D. Koskie
After Recording Return To:
Law Office of Craig Stirn
343 West Drake Road, Suite 105
Fort Collins, Colorado 80526
1111111111111111 NMI /III MI 111111111111111 HMI
3727746 10/20/2010 04 24P Weld County, CO
1 at 2 R 15.00 D 0.06 Slave Moreno Clerk & Recorder
1 NM MUM $11111 fill 1111 II1111I NI 111!1 !ill 1111 STATE OF COLORADO ) 3727740 10/25/2010 04:24P Weld County, CO
ss. 2 0₹ 2 R 10.00 D 0.00 Steve Moreno Clerk & Recorder
COUNTY OF LARIMER )
The fore of g instrument was acknowledged before me in the County of Latimer, State of Colorado, this)9kli
' day
of OCa, 2010, by Scott D. Koskie.
Witness my hand and official seal.
My commission expires: I) 414 "off D la
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
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The foregoing instrument was acknowledged before me in the County of Larimer, State of Colorado, this oil day
oftber 2010, by Peggy J. Koskie.
Witness my hand and official seal. �1
My commission expires: Ii —114 ' goo-
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EXHIBIT B
Koskie Lease Area Map
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