HomeMy WebLinkAbout20112940.tiff Varra Companies, Inc.
Office of Special Projects
1431 East 16th Street Greeley,Colorado 80631 Telephone(970)353-8310 Fax(970)353-4047
Friday 4 November 2011
Weld County Clerk to the Board
915 10th Street,3rd Floor
Greeley,Colorado 80632
Subject: Varra Companies,Inc. - Kurtz Resource and Land Development Project- Regular
Impact (112)Amendment Application—Permit M-2009-018-Conveyor Route.
Materials submitted to the Colorado Division of Reclamation Mining and Safety (CRMS)-Office
of Mined Land Reclamation (OMLR):
• Correspondence of 4 November 2011 and attachments.
ATTACHEMENTS:
• Anadarko/Kerr-McGee Oil&Gas Onshore LP agreement as signed 5 May 2009.
• Kerr-McGee Gathering LLC agreement as signed 24 October 2011.
• Bearson Dairy Deed and Legal Description for Varra Companies, Inc.
• Nix Property Conveyor Right of Way Lease Agreement.
Your signature below acknowledges receipt of the above referenced material,as attached. The
material should be added to the above referenced Application, as originally submitted to the Weld
County Clerk to the Board,and made accessible for public review.
Received On 'VOA--cvvd ' q , , 2011
By: � 3YwVrJ
Office of the Weld County Clerk to the Board of County Commissioners
?wok-ice Qto,t ;
11 -O1-tl `1 -N 2011-2940
Varra Companies, Inc. HEINTZELMAN Project OMLR Amenumem— 1
Conveyor Route—M2009-018 August 2011
Varra Companies, Inc.
Office of Special Projects
8120 Gage Street Frederick,Colorado 80516 Telephone(970)353-8310 Fax(970) 353-4047
Friday 4 November 2011
To: Michael Cunningham, E.Y.S.
Colorado Office of Mined Land Reclamation (OMLR, or the Office')
1313 Sherman St., #215
Denver, CO 80203
From: Varra Companies, Inc.
Bradford Janes
Professional Forester
Subject: Amendment — Conveyor Route
Heintzelman Project
OMLR Permit M-2009-018
Following is a reply to the OMLR Adequacy Letter of 19 October 2011. The OMLR
comments are iterated in black and Varra Companies, Inc. reply inside the box in blue.
6.4.3 Exhibit C - Pre-mining and Mining Plan Map(s) of Affected Lands
1. Exhibit C-3 only depicts the conveyor system within the amended area of the
Heintzelman site. Please note that the Division approved a proposed conveyor route
under the original submittal for Heintzelman reclamation permit. The approved
Mining Plan Maps only show the proposed location of the conveyor system. Please
clarify if the location of the conveyor system on the approved Mining Plan Maps
remains the same.
The original conveyor route within the original Heintzelman Project permit area is
unchanged. The actual amount of line required within the route will increase
according to the Tract being extracted. Please refer to Item 7, below.
2. Please explain why Exhibit C-3 does not show the conveyor system crossing over
Weld County Road 28.
The alignment runs straight across Road 28 to the south end. The graphic of the
alignment of the conveyor line was left out so as not to obscure the planned location
of the bridge footings. The line will then connect from the bridge to the planned and
approved Heintzelman Line within the original permit boundary. The 1,413± feet of
1
conveyor line includes that portion as it crosses WCR 28 and into Heintzelman, even
though the line is not graphically shown at that location on the map.
6.4.4 Exhibit D — Mining Plan
3. Please provide the Division with plan for inspecting the portion of the conveyor
route which crosses over Weld County Road 28. The plan should detail the visual
observations to be made during the inspections as well as the frequency of the
inspections.
Please refer to Item 4, below.
4. Please describe the measures to be taken to prevent material from overtopping the
conveyor system and falling onto Weld County Road 28.
Overtopping may occur, however, the failsafe for overtopping is the design pan
below the conveyor which will capture any spilled materials. The pan will be
inspected daily and the pan cleaned as needed.
5. The Amendment Application states that 1,413 ft. of the conveyor system lies within
the permit boundary of the Heintzelman site. Please clarify if this includes the length
of the conveyor system which lies within the original permit boundary for the
Heintzelman site or just within the amended permit boundary.
The 1,413± feet of conveyor line referenced is for the Amendment area alone, since
the nature and apx. location of the line within the existing Heintzelman permit
boundary was previously approved by OMLR.
6. The Applicant provided an estimate for dismantling the conveyor system which
includes a cost for removal of oil tank crossing trusses and stands. Exhibit C-3 does
not depict the conveyor system crossing over any oil tanks. Please clarify if the
conveyor system will cross over oil tanks. If the conveyor system will cross over oil
tanks, then the Applicant will need to submit a detailed design drawing of the oil
tank crossing. In addition, Exhibit O-3 will need to be revised to show the oil tank
Varra Companies, Inc. M-2009-018 2
Heintzelman Conveyor Amendment Correspondence of Friday 4 November 2011
crossing. Also, include copies of any agreements the Operator has with the owner(s)
of the oil/gas facilities.
The line does not cross over any tanks. The centerline of the conveyor is shown
offset to the west from the tank by apx. 14± feet. Agreements accommodating the
conveyor line have been made with Kerr-McGee Gathering LLC of 20 October 2011
and Anadarko Petroleum Corporation (a.k.a., Kerr-McGee Oil and Gas Onshore L.P.)
as signed 5 May 2009 by Garrett C. Varra. Copies of the agreements are included
with this submittal. The reference to 'overhead' simply means the conveyor is
supported above ground.
6.4.12 Exhibit L— Reclamation Costs
7. The Applicant has provided a cost estimate for dismantling the portion of the
conveyor within the amended area of the Heintzelman site. Please note that the
original financial warranty estimate for the Heintzelman site did not included a cost
for dismantling the proposed conveyor system. Therefore, the Applicant will need to
revise the cost estimate to include dismantling the entire length of the conveyor
system within the Heintzelman site.
Since the Heintzelman Project is extracted in phases, raw product will be loaded into
the conveyor system beginning north of Station Line Three in Tract A, or an
additional 1,100± feet of line within the planned route. As other Tracts are opened,
the operator will provide per unit fund increases to the warranty at that time. The
per unit cost of the line based upon the prior estimates from Divide Constructors is
$5.03± per linear foot of line when you subtract apx. 105± feet for the bridge span
from the total line length in the Amendment Area of 1,413± feet and the Kurtz
Project Area of 3,101± feet based upon the Divide Constructor Cost of $22,200.00
for dismantling the length of that portion of the line. When the per unit cost is
applied to the estimated 1,100±for the initial line within the existing Ileintzelman
permit area, or an additional $5,539.92. The estimated total length of line required
for all Tracts within the original Heintzelman Project Area is 3,550± feet of line, or
an additional 2,450± feet once Tract A is completed or new Tracts are opened.
8. The Applicant has proposed including the cost to remove the conveyor system
within the Kurtz site (M-1999-006) under the financial warranty for the Heintzelman
site. The Division is unable to include the reclamation costs associated with the
Kurtz site under the financial warranty for the Heintzelman site. The cost to reclaim
Varra Companies, Inc. M-2009-018 3
Heintzelman Conveyor Amendment Correspondence of Friday 4 November 2011
the conveyor system will have to be divided between the sites. The Division will
send notice of the financial warranty increase for the Kurtz site under separate
cover.
The operator can accommodate this consideration.
9. Please provide the Division with the total volume of concrete which will need to be
used to construct the concrete pads and other foundations.
Divide Constructor Cost estimates include the costs for demolition or removal of
concrete bases on the line and the bridge. The total volume of concrete necessary
to construct the pads and foundations is 35.0± cu.yds.
6.4.13 Exhibit M— Other Permits and Licenses
10.On Page 4 of the application form, the Applicant has stated the conveyor system will
cross Weld County Road 28 under an approved Weld County Right of Way permit.
However, the Applicant has stated under Exhibit M that the Weld County Right of
Way permit is currently pending. Please clarify if the Weld County Right of Way
permit is pending or if it has been approved and commit to providing the Division
with a copy of this permit prior to constructing the conveyor system.
The Right-of-Way permit is pending approval. The applicant will provide a copy of
the approval to the OMLR upon receipt and prior to on-set of construction.
6.4.14 Exhibit N - Source of Legal Right to Enter
11.The Amendment Application states that Varra Companies has recently acquired
properties to the east of the original permit boundary for the Heintzelman site.
Please provide a legal right of entry for this property as required by Construction
Materials Rule 6.4.14. This may be a copy of an access lease, deed, abstract of title,
or a current tax receipt.
Varra Companies, Inc. M-2009-018 4
Heintzelman Conveyor Amendment Correspondence of Friday 4 November 2011
A copy of the appropriate lease with Ready Mixed Concrete Company for the lands
north of WCR 28 and south of the existing Kurtz Project permit boundary; and deed
showing Varra Companies, Inc. as owner for the lands below WCR 28 and adjacent
to the original Heintzelman permit is included with this submittal.
6.4.19 Exhibit S - Permanent Man-made Structures
12.The Applicant has provided the Division with copies of the structure agreements
which were sent to the owners of structures within 200 feet of the affected area.
The Applicant received signed structure agreements from only two of the structure
owners and therefore must rely on a stability analysis to demonstrate that the
conveyor system will not adversely affect the stability of any significant, valuable
and permanent man-made structure located within 200 feet of the affected land. The
Applicant has indicated the stability analysis from the original submittal for the
Heintzelman site is unchanged. The original stability analysis addressed slope failure
and stability within the pit and did not include an analysis of the stability of the
conveyor system. Therefore, the Applicant will need to submit a stability analysis
for the conveyor system. The stability analysis should demonstrate the footings are
designed to have an adequate load capacity for the conveyor system. In addition, the
stability analysis should address the bearing capacity of the soils in which the
footings will be placed.
PENDING — Varra Companies, Inc. will provide to the OMLR, stamped drawings
signed by a Professional Engineer, as supported by a qualified geotechnical report,
under the purview of Divide Constructors, Inc., prior to construction of the approved
line. The operator respectfully requests this consideration simply be understood as
a condition of approval.
ATTACHEMENTS:
• Anadarko/Kerr-McGee Oil&Gas Onshore LP agreement as signed 5 May 2009.
• Kerr-McGee Gathering LLC agreement as signed 24 October 2011.
• Bearson Dairy Deed and Legal Description for Varra Companies, Inc.
• Nix Property Conveyor Right of Way Lease Agreement.
Varra Companies, Inc. M-2009-018 5
Heintzelman Conveyor Amendment Correspondence of Friday 4 November 2011
Kerr-McGee Oil& Gas Onshore LP
1099,le Street
Denver, CO 80202
A Subsidiary of
AnadarkpA
Petroleum Corporation
Sand Land Inc.
8120 Gage Street
Frederick, CO 80516
RE: Conveyor Construction 3N67wsec28 SW/4
Dear Mr. Varra:
Kerr-McGee Oil & Gas Onshore LP ("KMG") hereby approves the initial design of
the Sand Land Inc. ("Sand Land") conveyor to be constructed along Weld County Road 17
between Weld County Road 28 and Highway 66 (the "Conveyor"), with the following
conditions:
a. The height of the Conveyor must he a minimum of 13'6'' and posted such that KMG
tanker truck movement shall not be hindered by it;
b. The Conveyor must not go over the production facility at any point:
c. The overhead power lines associated with the Conveyor must he buried at least 36
inches below the surface when located within 150' feet of KMG's production facility:
d. KM(i must have 24-hour access to its production facilities during and after the
construction process;
c. Sand Land must continue to consult with KMG on a new road access agreement:
If Sand Land alters the initial Conveyor design in any way, Sand Land shall provide
KMG the opportunity to review and comment on any such alterations, and provide
possible further conditions.
g. Sand Land must place grounds throughout the Conveyor to assist in preventing static
electricity.
If at any point during construction of the Conveyor, KMG determines that Sand Land
is not in compliance with any one or more of the above listed conditions, or any subsequently
added conditions based on alterations to the initial design. KMG shall notify Sand Land of
such non-compliance and Sand Land hereby agrees that it shall immediately cease
construction operations until such time as KMG deems compliance has been re-established.
By signing below, you hereby accept the terms and conditions contained herein.
Very ,,y��ounnrs,
CX.l -
Ken--McGee Oil and Gas Onshore L.P.
Keith Kilerease
Production Superintendent
ACKNOWLEDGED, AGREED and ACCEPTED this .5 day of 2009 by
Garrett Varra
Vice President
K hN-1,1k'.GI I G.eII:i 1.INl- 11 .
4,) Kerrly Gee
October 20,2011
Varna Companies,Inc.
do Garrett Varra
8120 Gage Street
Frederick,Colorado 80516
Re: Letter Agreement for Relocation of Pipeline 16-02-744
Township 3 North.Range 67 West.6("P.M.
Section 33:Part of the N W''A
Weld County,Colorado
Dear Mr.Varna,
As per Varna Companies Inc.'s ("Varra") request, Kerr-McGee Gathering LLC ("KMGG") agrees to
relocate pipeline 16-02-72-4 to accommodate an overhead conveyor across a portion of Varra's lands described
above(the"Lands").As consideration for the relocation of pipeline 16-02-72-4,Varna and KMGG agree as follows:
Varna will submit a payment of$33,718.00 (the "Payment") to KMGG. KMGG will begin construction
operations as soon as reasonably practicable following receipt of the Payment.
Prior to construction operations, Varna will execute a Right-of-Way Grant(the "Grant") for the portion of
the pipeline that lies within the Lands.Prior to execution of the Grant, KMGG will provide Varna with a land survey
from a Professional Land Surveyor that fully describes the pipeline to be relocated.
Thank you for your time and consideration in this matter. If you have any questions or comments,you may
reach me at(720)929-6691 or(303)895-7398.
Cordially,
Kerr-McGee Gatheri
Lance Fon nett
Landman
c
Agreed and accepted this.A r{ . day of October,2011.
Varra Co nies,a Inc.
By:
CO /
Title:
A Sill . u l y (!I AN/J+AKRU f'! -milt cwt. Col co:inp0N
After Recording Return to
Vatt,t C'untpemr,.Inc.
s 1.ll Crage Street VY'
Frederick.CO) x11510
SPECIAL WARRANTY DEED
'Phis Deed.made April 15.2011
Between Bearson Dairy,L.L.C.,a Colorado Limited Liability Company,ol-the County Weld.
State of COLORADO.grantors)and Varra Companies,Inc., a Colorado Corporation,whose legal
address is a120 Cage Street,Frederick,CO 60516 County of Weld.and State of'COLORADO,grantee(s)
WITNESSETII, That the granter(s), for and in the consideration of the sum of One NI illion two
Hundred Thousand and no/100-- Dollars ($1,2110,000.00 ) the receipt and sufficiency of which is
hereby acknowledged,has granted,bargained,sold and conveyed,and by these presents does grant,bargain,sell.
convey and confirm, unto the grantee(s), his heirs and assigns forever, all the real properly together with
improvements.if any.situate,lying and being in the County of Weld,State of COLORADO described as!Ames:
Set Exhibit A attached hereto and made a part hereof.
also known by street and number as Vacant land,Fort Lupton,CO 8(1621
TOGETHER with all and singular hereditament::and appurtenances,thereunto belonging,or in anywise
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,either in law or equity,of.in and to
the above bargained premises,with the hcrcditamcnts and appurtenances.
'1'O HAVE AND TO BOLD said premises above bargained and described, with the appurtenances,
unto the grantee, their heirs and assigns forever. The granter(s), for themselves- their heirs and personal
representatives or successors, does covenant and agreee that they shall and will WARRANT AND FORI:VIR
DEFEND the above-bargained premises in the quiet and peaceable possession of the grantee(s),their heirs and
assigns,against all and every person or persons claiming the whole or any part thereof,by,through or under the
grantoe(s).
The singular number shall include the plural,the plural the singular,and the use of any gender shall be
applicable to all genders.
IN WITNESS WIIERFA)F.the grantor has executed this on the date set forth above.
SELLER:
ile:us„n Dairy.l I.( ..a Colorado I tented Ltabdin
e.,ugr,nr.
STA'fl:OF COLORADO ;ss:
COUNTY OF Boulder
The foregoing instrument was acknowledged before me April 5,201 by atllcy Bearson,`latager of Bearson
Dairy,1..L.C„a Colorado limited Liability Company. s
Witness my hand and official seal.
•
otary i
Debra J.Flizgeraldl My Com si expires:\
\ti I)I klt1{ItK NOTARY PUBLIC I !•.'C OW NO.398-110304969-042.102
STATE OF COLORADO J
H @
My convriMtpn wino 01,30(2015
Exhibit A
Parcel I:
Lot A.Recorded Exemption No. 1209-33-2 RE-3922.a portion of the Northwest One-Quarter o1 Sc:tmn
33. township 3 North.Range 67 West.of the o°I'.RI..which is I ot It of Recorded I xempuou No. 1209
1.1.2 RI-_2IXS.
('aunty of Weld.State of UoIniadn
Pmeel 2.
ot B.Recorded Exemption No. 1219-33-2 R1--3922.a portion of the Northwest t Me-Quarter of Section
33.1 nunship 3 North.Range 67 West.oldie'i' .which r Lot R of Recorded I xeuq'Lon No. I2tttt-
?i 2 Rf:-21145,
County of Weld.State of Colorado.
Parcel 3:
of C.Recorded Exemption No.1209-33-2 RE-3922.a portion of ihc•Novara est(Inc-Quarter of Section
?1.
lowtt.Itp 3 North.Ranee(,-t%,' ollhe r.4 I'.M..%Itch is lart It of Recorded I wntptioa No.I?rive3;.'
R1,2185.
County of Yield.State of Colrrato
Parccl•t'
I nt D.Recorded Exemption No 1209-3 1-2 RI•.-1927.a portion of the Northwest Otte-Quarter of Section
33.1 nwa.hip 3 North.Range 67 West.alb,:1"'I'.,M.which is I of It of Recorded I.xcmption No. I209-
33-2 Rh-2185.
County of Weld.State of-Colorado.
NIX PROPERTY
CONVEYOR RIGHT OF WAY LEASE AGREEMENT
by and among
Ready Mixed Concrete Company,
Varra Companies, Inc.
And
Sand Land, Inc.
NIX PROPERTY
CONVEYOR RIGHT OF WAY LEASE AGREEMENT
This CONVEYOR RIGHT OF AY LEASE AGREEMENT (the "Lease") is made
and entered into effective this Z Z day of , 2009(the"Effective Date"),by and between
READY MIXED CONCRETE COMPAN a Colorado corporation having an address of
4395 Washington Street, Denver, Colorado 80216 ("Landlord"), and VARRA COMPANIES,
INC. and SAND LAND, INC., both Colorado corporations having an address of 8120 Gage
Street, Frederick,Colorado 80516(together"Tenant"). Landlord and Tenant may be referred to
together herein as the"Parties"or, individually,as a"Party."
RECITALS
WHEREAS, Landlord owns approximately 300 acres of real property known as the"Nix
Property,"as more particularly described in Exhibit A hereto;
WHEREAS, Landlord intends to mine sand and gravel from the Nix Property at a future
date and to reclaim said property:
WHEREAS, Tenant operates a sand and gravel mine called the "Kurtz Resource
Recovery & Land Development Project" (hereinafter "Kurtz Pit") which is located on property
situated contiguous and adjacent to portions of the Nix Property;
WHEREAS, the Kurtz Pit operates under Permit No. M-1999-006, issued by the
Colorado Mined Land Reclamation Board and the Colorado Department of Natural Resources,
Division of Reclamation Mining and Safety;
WHEREAS,Tenant operates a sand and gravel processing plant at the Kurtz Pit;
WHEREAS, Tenant also owns property known as "Heinselman" at which it plans to
mine sand and gravel pursuant to a permit to be obtained from the Colorado Mined Land
Reclamation Board and the Colorado Department of Natural Resources, Division of Reclamation
Mining and Safety;
WHEREAS, the Heinselman property is not contiguous or adjacent to the Kurtz Pit, and
the Tenant's two pits are separated by the Nix Property;
WHEREAS, Tenant wishes to lease a discrete right-of-way across the Nix Property, as
depicted in Exhibit B hereto (hereinafter the "Premises"), for the sole purpose of locating,
operating and maintaining a sand and gravel conveyor system that Tenant will utilize to transport
unprocessed sand and gravel materials mined from the Tenant's Heinselman Pit to the sand and
gravel processing plant located at the Tenant's Kurtz Pit;and
WHEREAS, Landlord wishes to lease the Premises to Tenant so that Tenant can install,
operate and maintain,at Tenant's sole cost and expense,a sand and gravel conveyor system.
IN CONSIDERATION of the above recitals, the rental to be paid and the agreements
herein contained,and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Landlord and Tenant hereby agree as follows:
I. Lease Term. Except as provided in Paragraph 3.1 below, the tern of the Lease
(hereinafter "Lease Term") shall commence on the Effective Date and continue until the sand
and gravel located on the Heinselman property is fully mined and shall continue until the
Premises are fully reclaimed and any reclamation bond for the Premises is released by the
Colorado Mined Land Reclamation Board.
2. Rent Payable on the Effective Date. Beginning on the Effective Date and by no
later than the thirtieth (30`h) day of June of each year thereafter during the Lease Term, Tenant
shall pay Landlord "Rent"in the amount of Five Hundred Dollars ($500). Upon the third (3f1)
anniversary of the Effective Date, and every three (3) years thereafter, the annual Rent payment
shall be increased by One Hundred Dollars($100).
3. Conveyor Installation and Operation. Tenant shall be solely responsible for
purchasing, installing and maintaining the sand and gravel conveyor system, including without
limitation, all appurtenant structures and features necessary to establish, operate and maintain
such a conveyor system.
3.1 Landlord's Operations. In the event the right-of-way across the Nix
Property depicted in Exhibit B hereto causes or threatens to cause an interference in any way
whatsoever with Landlord's future mining and/or reclamation of the Nix Property. Tenant shall
at its sole cost and expense relocate or remove the conveyor system from the Premises. Whether
the conveyor system on the Premises causes or threatens to cause interference under this
provision is a determination that shall be made by landlord in Landlord's sole discretion. The
relocation or removal of the conveyor system shall be completed by Tenant within sixty (60)
days of Tenant's receipt from Landlord of a written notice to relocate or remove the conveyor
system.
3.1.1 Tenant Reimbursement of Landlord. Tenant shall reimburse
Landlord for the reasonable cost and expense Landlord incurs to revise or amend any permit
Landlord currently holds or obtains in the future that relates to Landlord's use of the Nix
Property (including, without limitation, for mining and reclamation) that is required to reflect or
otherwise account for the right-of-way across the Nix Property depicted in Exhibit B hereto and
Tenant's conveyor on the Premises.
3.2 Oil and Gas. In the event the location of the conveyor system on the
Premises causes,or threatens to cause,an interference with the right of any third party to develop
oil and gas mineral resources on the Premises, or the Nix Property more generally, Landlord and
Tenant shall jointly negotiate an appropriate accommodation of the competing activities on the
Premises, if any, with any such third party.
4. Reclamation. Tenant shall be solely responsible for all costs and work necessary
to reclaim the Premises.
4.1 Reclamation Indemnity. Tenant shall indemnify and agrees to protect,
defend and hold harmless, Landlord and all of Landlord's subsidiary and affiliated entities, and
their successors and assigns, and the officers, directors, shareholders, partners, members,
servants, employees, agents and contractors of any of them, from and against any and all claims,
liens, actions, proceedings,judgments, liabilities, damages, costs, attorney fees and any and all
expenses in connection with any reclamation of the Premises.
5. Use of Premises; Compliance with Laws. Tenant shall use the Premises for the
sole purpose of installing, operating and maintaining a sand and gravel conveyor system to
convey sand and gravel from the Heinselman property to the Kurtz Pit and for no other purpose
whatsoever. Tenant covenants and agrees to comply with all statutes, rules, orders, regulations
or requirements of federal, State, county or city governments regulating Tenant's use of the
Premises, including, but not limited to the terms and conditions of any applicable federal, State
or local permits and agreements necessary for the installation, operation and maintenance of the
conveyor system.
5.1. Hazardous Materials. Tenant covenants and agrees not to utilize any
"Hazardous Materials"on the Premises.
5.1.1 "Hazardous Materials" means any substance that is at any
pertinent time defined or listed in, or otherwise classified, designated, or regulated
pursuant to. any "Environmental Laws" as a hazardous substance, hazardous material,
extremely hazardous substance, hazardous waste, hazardous chemical, infectious waste,
toxic substance, toxic pollutant or solid waste, or any other legislative or regulatory
formulation intended to define, list, or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, outcome of Toxicity Characteristic Leaching Procedure ("TCLP"),
or otherwise, including without limitation, friable asbestos and polychlorinated biphenyls
and also including oil and petroleum, petroleum products, by-products and wastes, and
by-products associated with the extraction, refining, or use of petroleum or petroleum
products, whether or not so defined, listed, classified, designated or regulated in
"Environmental Laws."
5.1.2 Definition of Environmental Laws. The term "Environmental
Laws" means without limitation any statute, law, act, ordinance, rule, regulation, order,
decree, or ruling of any Federal, State and/or local governmental, quasi-governmental,
administrative or judicial body, agency. board, commission or other authority relating to
the protection of health and/or the environment or otherwise regulating and/or restricting
the use, storage, disposal,treatment, handling, release, and/or transportation of Hazardous
Materials in effect on or prior to the effective date of this Lease relating to pollution or
protection of human health or the environment (including ambient air, indoor air, surface
water, ground water, land surface, or subsurface strata), including, without limitation, (i)
the Comprehensive Environmental Response Compensation and Liability Act, as
amended (42 U.S.C. §§9601 et seq. ("CERCLA")), (ii) the Resource Conservation and
Recovery Act, as amended (42 U.S.C. §§6901 et seq. ("RCRA")), (iii) the Clean Air Act
(42 U.S.C. §§ 7401 et seq.); (iv) the Clean Water Act(33 U.S.C. §§1251 et seq.), (v) the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. §§ 11011 et seq.).
(vi) the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.), (vii) the Hazardous
Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), (viii) the Toxic Substances
Control Act (15 U.S.C. §§ 2601 et seq.), (ix) any state or local Law analogous to the
Laws listed in parts (i) - (viii) of this subparagraph, (x) any amendments to the statues,
laws or ordinances listed in parts (i) - (viii) of this subparagraph, in existence on the date
hereof, and (xi) any other Law now in effect relating to emissions, discharges, releases,
threatened releases generation, management, handling, control, use, treatment, storage.
disposal, transport, removal, remediation or recovery of any Hazardous Material.
6. Taxes. Landlord shall pay when due all real property taxes and special
assessments levied or imposed against the Premises. From the Effective Date through the Lease
Term Tenant shall pay when due all personal property taxes levied or imposed against any
fixtures and Tenant's other personal property, trade fixtures, improvements made by Tenant or
improvements placed by Tenant in or about the Premises.
7. Insurance. During the Lease Term,Tenant shall maintain:
7.1 Commercial general liability, "all-risk" property damage insurance and
automobile liability insurance with limits, in all cases, of not less than One Million Dollars
($1,000,000).
7.2 Tenant shall obtain and at all times maintain Workmen's Compensation
Insurance and Employer's Liability Insurance for all employees of Tenant engaged on or with
respect to the Premises in such amounts as are established by law.
7.3 Insurance required hereunder shall be provided by an insurance company
or companies authorized to do business in the State of Colorado. On or prior to the Effective
Date, Tenant shall deliver to Landlord certificates evidencing such insurance. Landlord shall be
named as an additional and named insured under such policies of insurance. Tenant shall
provide renewal certificates to Landlord upon request.
7.4 In the event Tenant fails to provide, maintain, keep in force, or deliver and
furnish to Landlord the policies of insurance required by this Lease, Landlord may, but shall not
be obligated to, procure such insurance or single-interest insurance for such risk covering
Landlord's interest and Tenant shall pay all premiums thereon promptly upon written demand by
Landlord.
8. Indemnity of Landlord. Tenant shall indemnify and agrees to protect, defend
and hold harmless, Landlord and all of Landlord's subsidiary and affiliated entities, and their
successors and assigns, and the officers, directors, shareholders, partners. members, servants,
employees, agents and contractors of any of them, from and against any and all claims, liens.
actions, proceedings, judgments, liabilities, damages, costs, attorney fees and any and all
expenses in connection with (i) the use, occupancy, management, or control of the Premises by
Tenant after the Effective Date and during the Lease Term, (ii) any injury to or death of any
person, or damage to any property on the Premises caused in whole or in part by the negligence
of Tenant, its employees, servants, agents, contractors, subcontractors, customers, or invitees,
(iii)any use of the Premises or any act or omission of Tenant that is in any manner prohibited by
law, ordinance, government regulation, or the provisions of this Lease, (iv) any failure of Tenant
to observe or perform the terms, covenants, or conditions of the Lease, and (v) any act or
omission by Tenant, its agents, employees, servants, contractors, subcontractors, customers, or
invitees during the Lease Term.
8.1 Notice to Tenant. Landlord shall provide Tenant written notice of any
demand, claim, cause of action, liability, loss, or damage asserted against Landlord as it pertains
in any respect to any matter covered by this indemnity, within fourteen (14) days after Landlord
obtains notice, whether actual or constructive, of the same first made. Late notice or no notice
by Landlord shall be construed as a waiver by Landlord of the right to indemnification
contemplated under this Section 8. In case of any action or proceeding brought against
Landlord, and unless defense is provided by an insurance carrier, Tenant shall, upon receipt of
timely notice from Landlord, defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord.
9. Indemnity of Tenant. Landlord shall indemnify and agrees to protect, defend
and hold harmless, Tenant and all of Tenant's subsidiary and affiliated entities. and their
successors and assigns, and the officers, directors, shareholders, partners, members, servants,
employees, agents and contractors of any of them, from and against any and all claims, liens,
actions, proceedings, judgments, liabilities, damages, costs, attorney fees and any and all
expenses in connection with any negligent act of Landlord as it relates to the Premises
9.1 Notice to Landlord, Tenant shall provide Landlord written notice of any
demand, claim, cause of action, liability, loss, or damage asserted against Tenant as it pertains in
any respect to any matter covered by this indemnity, within fourteen (14) days after Tenant
obtains notice, whether actual or constructive, of the same first made. Late notice or no notice
by Tenant shall be construed as a waiver by Tenant of the right to indemnification contemplated
under this Section 9. In case of any action or proceeding brought against Tenant, and unless
defense is provided by an insurance carrier, Landlord shall, upon receipt of timely notice from
Tenant, fund the defense by Tenant by counsel reasonably satisfactory to Landlord.
10. Condemnation/Eminent Domain. In the event that the Premises, substantially
all of the Premises, or any portion thereof or any improvements thereon, arc taken in
condemnation proceedings or by exercise of any right of eminent domain, or conveyed in lieu
thereof by agreement of Landlord, Tenant shall have the option to cancel this Lease within ninety
(90) days after possession of the Premises is legally authorized to be taken by the governmental
or quasi-governmental authority.
10.1 "Substantially All . . .". For the purpose of this Section 10, "substantially
all of the Premises" shall be deemed to have been taken if the untaken part of the Premises is
insufficient to allow the continued operation of the sand and gravel conveyor system.
10.2 Award. Landlord shall be entitled to the entire award for the Premises so
taken, provided that Tenant shall be entitled to prosecute and recover a separate award for the
value of any improvements made by Tenant so taken.
11. Entry by Landlord. Landlord, its agents and representatives shall have the right
to enter the Premises at any reasonable hour or time during any business of weekend to view and
inspect the Premises,or to make such improvements to the Premises as are necessary and proper.
Except as provided herein and in Paragraph 3.l to this Lease, Landlord shall not interfere with
Tenant's normal business operations on the Premises. Landlord shall have the right to enter
without notice or consent of Tenant to respond to emergency situations which Landlord
reasonably believes might cause loss of life or property damage.
12. Covenant of Ouiet Enjoyment. Except as otherwise provided herein, Landlord
hereby covenants and agrees that Tenant, upon payment of Rent as provided in this Lease and
the observance and performance of the covenants of this Lease on its part to be kept, shall
lawfully, peaceably and quietly hold, occupy and enjoy the Premises during the Lease Term
without hindrance or interference by Landlord or any person or persons lawfully claiming under
Landlord.
13. Subletting and Assignment. Except as to an affiliate of Tenant,Tenant shall not
sublet the Premises or any part thereof,nor assign this Lease,without the prior written consent of
Landlord. In the event that Tenant wishes to assign its interest under this Lease or to sublet the
Premises, it shall notify Landlord in writing of the identity of the proposed assignee or sublessee,
as well as of all terms and conditions of such assignment or sublease. Landlord may consider the
identity of the assignee or sublessee, and all of the proposed terms and conditions of such
assignment or sublease, in determining whether to consent to such assignment.
19. Subordination/Encumbrance. Tenant shall not subordinate or encumber the
rights and interests of the Tenant under this Lease.
20. Tenant Default. If Tenant shall default in the performance of any of the terms or
provisions of this Lease, including the payment of any installment of Rent, Landlord shall
promptly notify Tenant in writing. If Tenant shall fail to cure any such non-performance within
thirty (30) days after the receipt of such notice, or if the default is of such a character as will
require more than thirty (30) days to cure, and Tenant shall fail to commence to cure the same
within thirty(30)days after receipt of such notice, Landlord may,at its option invoke the dispute
resolution mechanism set forth in Section 22 of this Lease.
21. Landlord Default. In the event Landlord fails to perform any obligation
imposed on Landlord by this Lease, and such failure shall continue for thirty(30) calendar days
after written notice of such failure by Tenant, Tenant shall have the right, at Tenant's option, to
(i)cure such default, expending such sums as may be reasonably necessary for such purposes, in
which case Landlord shall reimburse Tenant therefore within thirty(30)days of Tenant's written
demand for the same; (ii)to set off an amount equal to the costs of curing such default against
any amounts due to Landlord hereunder, including any Rent; or (iii) invoke the dispute
resolution mechanism set forth in Section 22 of this Lease.
22. Dispute Resolution. Any dispute, difference or controversy arising under or in
connection with this Lease that Landlord and Tenant fail to resolve among themselves within
thirty (30) days following written notice of any such dispute, difference or controversy shall be
settled by binding arbitration according to the rules of the American Arbitration Association
("AAA") in force at the time of such dispute, difference or controversy. In the event binding
arbitration becomes necessary, the Parties agree to hold the arbitration in the City and County of
Denver, Colorado. Landlord and Tenant shall each choose an arbitrator, which two (2)
arbitrators shall together choose a third arbitrator. The arbitration shall be heard by the panel of
three arbitrators. The prevailing party in any such arbitration shall be entitled to receive from the
other party the prevailing party's reasonable attorneys' fees,costs,and arbitration expenses. The
arbitrator's award may be enforced in any court of competent jurisdiction and such award may
include an award of eviction.
23. Relationship of Parties. Landlord and Tenant are lessor and lessee, respectively,
and are not, except as they may otherwise agree between them in a subsequent writing executed
and acknowledged by each, nor shall they become by virtue of the Lease or any actions taken
pursuant hereto, anything other than lessor and lessee. Landlord and Tenant are not partners.
joint venturers,employed by one another,or agents of one another.
24. Notices. Whenever in the Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other, such notice or demand
shall be given or served and shall not be deemed to have been given or served unless in writing
and forwarded by certified or registered mail, return receipt requested,addressed as follows:
LANDLORD: TENANT:
READY MIXED CONCRETE COMPANY VARRA COMPANIES.INC.
4395 Washington Street 8120 Gage Street
Denver,Colorado 802I6 Frederick,Colorado 80516
Ann: Ron Henley Attn: Chris Varra
With copy to:
Jeffrey W.Schwarz.Esq.
Carver Schwarz McNab& Bailey,LLC
1600 Stout Street,Suitc 1700
Denver,Colorado 80202
Such addresses may be changed from time to time by either party by serving notices as
above provided.
25. Severability. If any part of this Lease shall be construed to be unenforceable, the
remaining parts shall remain in full force and effect.
26. Entire Agreement. This Lease contains the entire understanding and agreement
between Landlord and Tenant and supersedes all prior understandings, agreements,
representations, and other communications between Landlord and Tenant concerning the subject
matter hereof, and any executory agreement hereafter made between Landlord and Tenant shall
be ineffective to change, waive, release, discharge, terminate, or effect an abandonment of the
Lease, in whole or in part, unless such executory agreement is in writing and signed by each
party hereto.
27. Applicable Law. This Lease is made in the State of Colorado and shall he
construed in accordance with the laws of the State of Colorado.
28. Brokerage. The Parties represent to each other that no real estate broker,
salesperson or finder was involved or influential in negotiation of this Lease, or was a procuring
cause thereof, and each agrees to indemnify, defend and hold the other harmless from any
claims, liabilities, costs and expenses, which may be suffered or incurred as a consequence of
any claim being made in violation of the foregoing representation.
29. Recording. Landlord shall prepare and record at Tenant's expense in the Weld
County Clerk and Recorder's Office a summary Memorandum of Lease to provide notice of the
Lease between Landlord and Tenant. Landlord shall furnish Tenant evidence of such recording
within sixty(60)days of the Commencement Date.
30. Captions. Section and paragraph captions are for the convenience of the Parties
only and are not a part of this Lease and shall not be used for interpretation or construction of
this Lease.
31. Binding Effect. This Lease is binding upon and inures to the benefit of the
parties, their heirs, personal representatives, successors and permitted assigns. Any
modifications to the Lease must be in writing and signed by all parties.
32. Counterparts. This Lease may be executed in one of more counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Lease as of the date first
above written.
LANDLORD: TENANT:
READY ED CO C ETE COMPANY VARRA C PANIES, IN .
By. .1 By: kcv
Title: Title: ,..Ue•
TENANT:
SAND LA N .
By:
Title: Ale '
STATE OF COLORAO )
) ss.
COUNTY OF DENVER )
T e f regoin instrument was acknowledged before me this day of 1-1( k ,2009 by
�� as . r of Ready Mixed Concrete Company,a Colorado cor tin.
G,�pALI..4z My Commission Expires: :::4 .:...LCL(
zV: O 1 A R Y.m Witness my hand and official seal.
O. -r"."�"` :3
7
��?'UB�. GPS L ,It ( �. ' % ( AC(L, i
:it. OF C***OQ Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF fete/d )
The foregoing instrut was acknowledged before me this�.7-d
m�► ay of •}?,F.7 ,2009 by
C 4,tisn Attic L... ll,�.A4,as rtrs j li,v, of Varra Companies, Inc.,a Colorado corporation.
\ \v...RUPp�/ �My Commission Expires: S—.9/-//
_��n •',t........ 'I
y...� 'ttness my hand and official seal.
: .1 .z, ‘C.)) tg: ri ,,--
•
',,'.greOFG �����
�'/'lrrrttiiiiii0"
STATE OF COLORADO )
ss.
COUNTY OF/th(d )
The foregoing instrument was acknowledged before me thik..7.2 day of Yy?ir-.1 ,2009 by
C'.A,eisrool c'ic L.. I/,►<,4f ,as ,[gclds,v r- of Sand Land,Inc.,a Colorado corporation.
My Commission Expires: S=evi-i/
\,\.\ttt►llttlffi// Witness my hand and official seal.
�' CRY 9 �� t
O
- , v i ° = otary Public i
8 . Q.
.
,� PU 0O
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.7' OE•G
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EXHIBIT A
To Lease Agreement by and between
Ready Mixed Concrete Company,
Varra Companies, Inc. and
Sand Land, Inc.
Legal Description—The Nix Property
Parcel 1
The NE 1/4 and the NW 1/4/4 SE I/4 of Section 28,Township 3 North, Range 67 West of the 6th
P.M.,County of Weld, State of Colorado.
EXCEPTING THEREFROM a parcel of land conveyed to The Department of Highways,
State of Colorado by deed recorded December 5, 1957 in Book 1491 at Page 158, more
particularly described as follows:
The N1/2 NEI/4 of Section 28, Township 3 North, Range 67 West of the 6th P.M., in County
of Weld, State of Colorado, said tract or parcel being more particularly described as follows:
Beginning at a point on the East line of Section 28,Township 3 North, Range 67 West,
from which point the Northeast corner of Section 28 bears North 0 degrees 32 minutes
West, a distance of 90.0 feet;
1. thence along the East line of Section 28, North 0 degrees 32 minutes West, a
distance of 90.0 feet to the Northeast corner of Section 28;
2. thence along the North line of Section 28, North 89 degrees 49 West, a distance of
2,590.0 feet to the Northwest corner of the NE 1/4 of Section 28;
3. thence along the West line of the NE1/4 of Section 28, South 0 degrees 24
minutes East, a distance of 40.0 feet;
4. thence South 89 degrees 49 minutes East, a distance of 2.512.1 feet;
5. thence South 45 degrees 10 minutes 30 seconds East,a distance of 712 feet to a
point on the existing West County Road right of way;
6. thence South 89 degrees 49 minutes East,a distance of 28.0 feet, more or less,
to the point of beginning.
ALSO EXCEPTING a parcel of land located in part of the SE1/4 NE1/4 of Section 28.
Township 3 North, Range 67 West of the 6th P.M.,County of Weld, State of Colorado and
being more particularly described as:
Considering the North line of the NE I/4 of said Section 28 to bear South 89 degrees 34
minutes 43 seconds East, as monumented and shown on the plat, and all bearings
contained herein relative thereto:
Beginning at the East Quarter corner of said Section 28;
thence North 00 degrees 17 minutes 32 seconds West, 27148 feet along the East line of
said Section 28 to a point;
thence South 89 degrees 42 minutes 28 seconds West, 325.40 feet;
thence South 00 degrees 17 minutes 32 seconds East, 267.08 feet to a point on the South
line of the NE1/4 of said Section 28;
thence South 89 degrees 31 minutes 05 seconds East, 325.45 feet to the Point of
Beginning.
Tax Parcel No. 120928100011
Parcel 2
The S W 1/4 SE 1/4/4 and the S I/2 SWI/4 I/4 of Section 28,Township 3 North, Range 67 West of the
6th P.M., County of Weld, State of Colorado.
Tax Parcel No. 120928000006
EXHIBIT B
To Lease Agreement by and between
Ready Mixed Concrete Company,
Varra Companies, Inc. and
Sand Land, Inc.
The"Premises"
[See attache
EXHIBIT
To Nix Property Right of Way Lease Agreement by and between
Ready Mixed Concrete Company,Varra Companies,Inc.and
Sand Land, Inc.
{
AN EASEMENT FO CONVEYOR BELT BEING A PART OF TIE SOUTHEAST'A OF
THE SOUTHEAST 34 SECTION 21,TOWNSHIP 3 NORTH,RANGE 67 WEST OF THE
6TH P.M.,;COUNTY WELD,STATE OF COLORADO,DESCRIBED AS FOLLOWS:
CONSIDERING T LINE OF THE SOUTHEAST'A OF THE,SOUTHEAST'A OF
SAID SECTION 2S EAR NORTH 00.49'06' WEST,WITH ALL BEARINGS HEREIN
RELATIVE THERE
COMMENCING AT SOUTHEAST CORNER OF THE SOUTHEAST 1/4 OF THE
SOUTHEAST 1/4 OS SECTION 2$;THENCE NORTH 44.37'45"EAST,A DISTANCE
OF 42.10 FEET TO ' INTERSECTION OF EAST RIGHT-OF-WAY LINE OP WELD
COUNTY ROAD 17 THE NORTH RI0HT-OF-WAY LINE OF WELD COUNTY ROAD
2$,SAID INTERS BEING THE POINT OF BEGINNING;
THENCE WITH THE EAST RIGHT-OF-WAY LINE OF SAID WELD
COUNTY ROAD IT D PARALLEL WTITI AND 30.00'FEET BAST OF THE WEST LINE
OF THE 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 2$NORTH
00'49'06•WEST,A ARCS OF 1210.26 FEET TO THE NORTH LINE OF THE
SOUTHEAST 1/4 SOUTHEAST 1/4 OF SAID SECTION 2$;THENCE
COINCIDENT wall NORTH LINE OF THE SOUTHEAST 1/4 OF THE SOUTHEAST
1/4 OF SAID S 2$SOUTH$9.47'47"EAST,A DISTANCE OR 40.01 FEET;THENCE
PARALLEL WITH 70.00'EAST OF THE WEST LINE OF THE SOUTHEAST 1/4 OF
THE SOUTHEAST 1 OF SAID SECTION 2$SOUTH 00.4406'BAST,A DISTANCE OF
1209.71 FEET; NORTH$9'10'54'EAST,A DISTANCE OF 31.43 FEET;THENCE
PARALLEL WITH WEST LINE OF THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4
OF SECTION 2$ 00'49'06•EAST,A DISTANCE OF 70.95 FEET TO THE NORTH
RIGHT-OF-WAY OF SAID WELD COUNTY ROAD 2$;THENCE COINCIDENT
WITH THE NORTH -0E-WAY LINE OF SAID WELD COUNTY ROAD 211 NORTH
69.55'23"WEST,A ONCE OP 71.44 PEET TO THE POINT OF BEGINNING.
CONTAINING 1.23 ES,MORE OR LESS.
Ish
CURTISD.HOOS, 37971 AS 37971
FOR AND ON B OF
s-f
AMERICAN WEST ND SURVEYING Co.
ii
EXHIBIT B
Property Conveyor Right of Way Lease Agreententby_ant betwey_n
Ready Mixed Concrete Company.VarrtCott aniesJiw,dad
Sand Land.Inc,
_3
NORMaq a at In OF flC _...
µ� St t/I or 9E0. 28. 1JN. Ra1N'_
OIne S.LE 1/3 „I--;
OF
th
R 10
t.
I
ill i 0
MI 1014 1311
N, I
t 191E BEARING 015UNCE
i \I 7 L1 N4477'46'E 42.10'
"t d L2 N00'49'00'W 1260.20'
c vi l . L3 569 47.47'E 40.01
X II r L4 S00'49.00"E 1209.71'
0 16 Ne3't0i64'E 31.43'
P L6 S00'49 00"E 70.96
v�\ `t t L7 Ner56'26"W 71.44'
1' 150' g 1741 IA 61. NI 0
37971 .
/J
it
u Al tk.............. . i
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h
WIN 4.
w. 1/4 OF 1/ :' 9 7
x".30' N. 2a RIOM—Of aMY
;r. ��Si7tR 1
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