HomeMy WebLinkAbout20122374.tiff RESOLUTION
RE: APPROVE CONSENT TO ASSIGNMENT AND ASSUMPTION OF AGREEMENT
FROM LAFARGE WEST, INC., TO MARTIN MARIETTA MATERIALS, INC., FOR THE
GREELEY PIT (USR-247) AND AUTHORIZE CHAIR TO SIGN
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 Consent to Assignment and
Assumption of Agreement among the County of Weld, State of Colorado, by and through the
Board of County Commissioners of Weld County, on behalf of the Departments of Planning
Services and Public Works, and Lafarge West, Inc., and Martin Marietta Materials, Inc.,
commencing upon full execution, 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 Consent to Assignment and Assumption of Agreement among
the County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, on behalf of the Departments of Planning Services and Public Works, and Lafarge
West, Inc., and Martin Marietta Materials, Inc., 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 September, A.D.. 2012.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: - •
Sean P. C y, Chair
Weld County Clerk to the Board
-
Ham F. Garcia, ro-Tem BY: \J-CQTYLA- --.Deputy CI to th Boa XCUSED
1861 _�..++,, 'ara Kirkmeyer
APPROVED AS TO F 'N°`
® avid E. Long
un y 'ttorney CY
) e?Lavil9
Dough Radema er
Date of signature: q--IT-1 a`
/.17/dD/,? 2012-2374
PL0405
Stephanie Arries
From: Stephanie Arries
Sent: Thursday, August 16, 2O12 4:07 PM
To: Sean Conway; William Garcia; Barbara Kirkmeyer; Dave Long; Douglas
Rademacher
Cc: Bruce Barker; Richard Hastings; David Bauer
Subject: Assignment of Right/Obligations from Lafarge West, Inc. to Martin Marietta
Materials, Inc.
Attachments: MEMORANDUM of Assignments.docx
As you are probably aware, Lafarge and Martin Marietta exchanged several gravel mining properties. In Weld County,
this exchange resulted in Martin Marietta's acquisition of seven (7) properties formerly held by Lafarge.
The attached memorandum describes the properties in more detail.
The "Consent to Assignment" forms were prepared by Martin Marietta's counsel and after being executed by
representatives of both companies were sent to the County for the Board's approval.
The projects and documents were reviewed by Rich Hastings and me.The materials are in order and at this point staff
recommends approval, and asks that the Consents be executed.
Also,for your information,the only project involving existing collateral is the Colorado Sweetgold project.
It is anticipated that the seven (7) assignments will be presented to you for your consent either the week of August 27,
or the week of September 3.
Please let me know if you would like to have a work session on this matter.
Stephanie L. Arries
Assistant Weld County Attorney
1150 "O" Street
P.O. Box 758
Greeley, Colorado 80632
Tel: 970-356-4000 ext 4394
Fax: 970-352-0242
Email: sarries(aco.weld.co.us
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STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this email message
is attorney privileged and confidential, intended only for the use of the individual or
entity named above. If the reader of this message is not the intended recipient, you are
hereby notified that any dissemination, distribution or copy of this email is strictly
prohibited. If you have received this email in error, please notify us immediately by
replying and delete the message. Thank you.
2012-2374
1
MEMORANDUM RE:ASSIGNMENTS OF RIGHTS/OBLIGATIONS
FROM LAFARGE WEST, INC., TO MARTIN MARIETTA MATERIALS, INC.
As the Board may already be aware, Martin Marietta Materials, Inc., (hereinafter "Martin Marietta")
acquired the gravel mining operations—or rights thereto—which had been owned by Lafarge West, Inc.,
(hereinafter "Lafarge"), in December of 2011. As a part of this acquisition, Martin Marietta is assuming
all of the responsibilities held by Lafarge under the various Improvements Agreements previously
executed by Lafarge. Attached please find seven (7) documents titled "Consent to Assignment and
Assumption of Agreement" which accomplish this assignment of responsibilities.
These documents were prepared by the attorney for Martin Marietta. They were executed some time
ago by the officers of Martin Marietta and Lafarge, and several months later were forwarded to this
office for review and for acceptance by the Weld County Board of County Commissioners.
The Lafarge properties which have USR or SPR permits were carefully researched to determine the
status of improvements and to determine whether gravel mining operations are active on the sites. The
status of any collateral which Lafarge may have posted to secure compliance with its improvements
obligations was also examined. Below is a brief summary of the status of each of the Improvements
Agreements,the assignment of which you are being asked to approve.
1. Assignment of "Long Term Maintenance and Improvements Agreement with Western Mobile
Northern..."
This Agreement (Doc. #961859) was originally executed October 16, 1996. The Agreement was written
to cover maintenance and improvements on 35th Avenue (WCR 35), between "F" Street and "O" Street.
There is currently no collateral being held by Weld County for these maintenance and improvements
obligations.This agreement relates to USR-247 "Greeley Pit.
2. Assignment of "Amended Road Maintenance and Improvements Agreement" with Western
Mobile. Inc
This Agreement (Doc. #982493) was originally executed December 23, 1998.The Agreement was written
to cover maintenance and improvements on WCR 7, between the Hamm Pit entrance and State Highway
119. There is currently no collateral being held by Weld County for these maintenance and
improvements obligations.This agreement relates to USR-1199 "Hamm Pit".
3. Assignment of "Long-Term Road Maintenance and Improvements Agreement" with Mobile
Premix. Inc
This Agreement (Doc. #2001-3182) was originally executed November 14, 2001. The Agreement was
written to cover maintenance and improvements on WCR 6, between the Riverbend Pit entrance and US
Highway 85. This Agreement was amended in 2009 as Doc. #2009-0802. There is currently no collateral
being held by Weld County for these maintenance and improvements obligations. Collateral will be
required in the future as development of the facility progresses. This agreement relates to USR-1259
"Riverbend Pit".
4. Assignment of"Road Maintenance and Improvements Agreement" with LAFARGE WEST, INC.
This Agreement (Doc. #2003-0019) was originally executed January 6, 2003. The Agreement was written
to cover maintenance and improvements on the following roads:
a. WCR 7 between Colorado State Highway 119 and Colorado State Highway
b. 52WCR 20.5 between WCR 7 and the entrance to the Cottonwood Pit, (a distance of
7,700 feet)
c. WCR 18 between WCR 7 and WCR 5
d. WCR 5 between WCR 18 and WCR 7
There is currently no collateral being held by Weld County for these maintenance and improvements
obligations.This agreement relates to USR-1360 "Del Camino or Heaton Concrete Plant".
5. Assignment of"Road Maintenance and Improvements Agreement" with LAFARGE WEST, INC.
This Agreement (Doc. #2003-0550) was originally executed February 26, 2003. The Agreement was
written to cover maintenance and improvements on WCR 7 between State Highways 119 and 52, and
WCR 20.5 between WCR 7 and WCR 1, and maintenance and improvements on the following
intersections:
a. Intersection of WCR 20.5 and WCR 1, including installation of a traffic light
b. Intersection of WCR 20.5 and WCR 7
c. Intersection of WCR 7 and State Highway 52
There is currently no collateral being held by Weld County for these maintenance and improvements
obligations.This agreement relates to USR-488 "Cottonwood Pit".
6. Assignment of "Improvements Agreement According to Policy Regarding Collateral of
Improvements" with LAFARGE WEST, INC.
This Agreement (Doc. #2009-3068) was originally executed November 23, 2009. The Agreement was
written to cover maintenance and improvements primarily on State Highway 60. However, possible
future improvements included the following intersections:
a. WCR 19 and State Highway 60
b. WCR 17 and State Highway 60
c. WCR 19 and WCR 46.5
d. WCR 17 and WCR 46.5
There are on-site improvements which must be undertaken when a grading permit is requested. AT that
time, collateral must be posted.There is currently collateral being held by Weld County in the amount of
$180,000 for any maintenance and improvements obligations. This agreement relates to SPR-427
"Colorado Sweet Gold/Lafarge Asphaltic Cement Storage Tanks".
7. Assignment of "Improvements Agreement According to Policy Regarding Collateral of
Improvements" with LAFARGE WEST, INC.
This Agreement (Doc. #2011-2929) was originally executed November 7, 2011. The Agreement was
written to cover maintenance and improvements on WCR 64. Additional improvements could be
required in the event of a change in the haul route, including improvements to the following
intersections:
a. WCR 64.5 and WCR 25.75
b. WCR 64 and WCR 27
In addition, Lafarge agreed to provide $85,846 for the anticipated future modification of the curves in
the road on WCR 23.75 between WCR 64.5 and WCR 64.75.There is currently no collateral being held by
Weld County for these maintenance and improvements obligations. Collateral will be required in the
future as development of the facility progresses.This agreement relates to USR-1657 "Parsons Pit".
CONSENT TO ASSIGNMENT AND ASSUMPTION OF AGREEMENT
This Consent to Assignment and Assumption of Agreement("Consent to Assignment"), dated as
of the_day of , 2011 ("Effective Date"), is by and among Lafarge West, Inc. ("Assignor"),
Martin Marietta Materials, Inc., a North Carolina corporation ("Assignee"), and Weld County, Colorado
("County").
RECITALS
A. Assignor and County are parties to that certain Long Term Road Maintenance and
Improvements Agreement dated October 16, 1996 (Greeley 35th)(the"Agreement").
B. In connection with a larger transaction involving an exchange of various assets between
the parties, Assignor has assigned or will assign all of Assignor's right, title and interest in the Agreement
to Assignee, subject to the consent of the County as provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Assignment. Assignor has or will assign the Agreement to Assignee, with Assignee
assuming all of the obligations of Assignor thereunder arising from and after the effective date of such
assignment,which the Parties anticipate will be December 9, 2011.
2. County's Consent. County hereby consents to this Assignment. In connection with
such consent, County hereby confirms that (i) the Agreement is in full force and effect, (ii) the list of
documents set forth on Schedule 1 represents the full agreement between the parties with regard to the
matters described therein, and (iii) except as set forth on Schedule 1, there are no other amendments or
other agreements modifying the terms of the Agreement. To County's knowledge, Assignor is not in
default under the Agreement and has performed all duties and obligations required under the term of the
Agreement as of the date of this Consent to Assignment(including, without limitation, the payment of all
rent and royalties). County has not assigned, transferred or hypothecated the Agreement or any interest
therein.
3. Release and Replacement of Collateral. Pursuant to the Agreement, Assignor has
posted with the County collateral in the amount of$ . Upon Assignee posting replacement
collateral in like amount with the County, Assignor's collateral shall be promptly released to Assignor by
County.
4. Successors. The provisions of this Consent to Assignment shall bind and the benefits
shall inure to the heirs, representative, successors, and assigns of the parties hereto.
5. Severability. If any provision of this Consent to Assignment shall be held invalid or
unenforceable for any reason or to any extent, the remainder of this Consent to Assignment or the
application of the term or provision to persons or circumstances other than those as to whom or with
respect to which it is held invalid or unenforceable, shall not be affected, and each shall be valid and
enforceable to the fullest extent permitted by law. As between Assignor and Assignee, this Consent to
Assignment is subject to the terms and conditions of the Asset Exchange Agreement by and among
Assignor, certain of its affiliates, Assignee, and certain of its affiliates (the "Transaction Agreement"). In
the event of any conflict between this Assignment and the Transaction Agreement, the Transaction
Agreement shall control, provided however that the obligations of Assignor and Assignee to the County
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Greeley 35th
DMWEST#8663581 vl
under this Assignment or under the Agreement shall not be affected or modified in any respect by the
Transaction Agreement or any other agreement between Assignor and Assignee.
6. Governina Law. This Consent to Assignment shall be governed by, and constructed in
accordance with,the laws of the State of Colorado.
7. Counterparts. This Consent to Assignment may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same
agreement. This Consent to Assignment may be executed by facsimile or other electronic signature and
such electronic signature shall constitute an original for all purposes.
8. Notices. All notices, requests, concerns, approvals, payments in connection with this
Consent to Assignment, or communications that either party desires or is required or permitted to give or
make to the other party under the Agreement shall only be deemed to have been given, made and
delivered, when made or given in writing and personally served, or deposited with a reputable overnight
courier such as FedEx, postage prepaid, and addressed to the parties as follows:
If to Assignor: c/o Lafarge North America Inc.
10170 Church Ranch Way
Westminster, CO 80021
Attention: President
With a copy to: Legal Department
Lafarge North America Inc.
12018 Sunrise Valley Drive, Suite 500
Reston, Virginia 20191
Attention: General Counsel
If to Assignee: c/o Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh,North Carolina 27607
Attention: Chief Executive Officer&President
With a copy to: Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh, North Carolina 27607
Attention: Senior Vice President&General Counsel
9. Recording. Assignee may, at its election and cost, cause this Consent to Assignment to
be recorded in the real property records of Weld County,Colorado. Upon such recording,this Consent to
Assignment shall constitute record notice of the existence of the Agreement and the assignment thereof to
Assignee. Reference should be made to the Agreement for a full description of the rights and duties of
the parties thereto.
[Remainder of Page Intentionally Left Blank]
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Greeley 35th
DMWEST#8663581 vt
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the
date set forth above.
ASSIGNOR:
LAFARGE WEST,INC.,
a Delaware corporation/
By: 92�1,r7,{/f ,�l M1
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Name: ilk, l M ^ ;i u-
Title: V J5 v
STATE OF a/Or C/0 )
n� ) SS:
COUNTY OF Tatar)
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dada, �L
The foregoing instrument was acknowledged before me this o/3 day of f rz-9t-1",.?e/z
by (14arfjA 1. M'{star/c , as V P t1lsiars natfof
la W2St mitt, •
WITNESS my hand and official seal. � �- /�.+
Notary' e Public
My commission expires: ti-3b'Q0l q
pNPs1EPfIF 1/4,ii
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Commissiot`e
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Greeley 35th
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ASSIGNEE:
MARTIN MARIETTA MATERIALS,INC.,
a North Carolina corporation
By: r -
Name: Jay M. Moreau
Title: e1i�r Cc ident - Clperatinnc
STATE OF (cEo4.U( A )
) SS:
COUNTY OF r(LTo n/ )
The foregoing instrument was acknowledged fore me this day of , 2011,
Vic-t9reSr�.tyd"
by Ca1,.1 M • ( oce8(u� `e, _as e eroa- 'no, of
(-1\aCOS?,a f-Ve rEke-f 1\a* • o rcli1.
WITNESS my hand and official seal. LILL-1%4
Notary Public
My commission eip� '...�...--'II+
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COO.:ree
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Greeley 35th
DMWEST 48663581 vl
COUNTY:
WELD COUNTY, COLORADO
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Name: Sean P. Conway
Title: Chair, Board of Weld
County Commissioners
STATE OF COLORADO ) SEP 0 5 2012
) SS:
COUNTY OF WELD
The foregoing instrument was acknowledged before me this 5th day of September, 2012,
by Sean P. Conway as Chair of Weld County, Colorado.
WITNESS my hand and official seal.
o,�pRY.P1/6N 4)iL>�• � �J
'l''• ''••�' Notary Public
DONNA J.
BECHLER
‘1,`\`OF CO-es
MY COMM.EXP.04.10-201e
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Greeley 35th
DMWEST48663581 vl
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