HomeMy WebLinkAbout20040108.tiff Weld County Plan-
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2004-0108
Robert and Mary Stahl
9378 WCR 25
Ft. Lupton, CO 80621
303-857-0742
r,,: T
2 73
October 16`h, 2003
Weld County
Department of Planning Services
1555 N. 17`h Ave
Greeley, Co 80631
Re: Permit for Heit Farms LTD gravel pit.
To whom it may concern,
I am commenting by letter because I am unable to attend the Public
Hearing on Oct. 21, 2003.
While I have no objection to the gravel mining on the Heit property, I
do have some concerns that I would like to point out. I have met with Mark
Campbell of Southwestern Investment Group, LLC, and he was agreeable to
all but one of my concerns, which are as follows:
I have a large groundwater pond, approximately 3 acres, which is used
for fishing, recreation and wildlife. There is a high probability that the lining
of the Heit pit will cause a groundwater shadow, which may permanently
lower the level of my pond. I requested that some type of French drain or
perimeter piping be installed so that the groundwater would be routed around
the lined pit to assure that the groundwater table would be preserved at it's
present level. EXHIBIT
1 55
On the west side of the property is an area along Little Dry Creek that
may or may not be mined. One site plan showed that this area would be
developed into open space. I requested that the area not be developed into
open space due to the additional traffic and other problems associated with
public use. Such an area would be an attractive nuisance to teens and others
looking for a `party' spot as well as a permanent cause of additional traffic. I
recommended that the area be kept private for wildlife or be leased for duck
hunting, which is a compatible use for this area.
Due to the limited nature of the resource being mined, we request that
the area be mined to its fullest extent with no curvatures of the shoreline or
unnecessary setbacks. I further request that the end use of this site should be
designated as water storage, agriculture, and rangeland and that the End Use
not include any residential development.
As I recall, Mr. Campbell was agreeable to all of these
recommendations. However we could not reach agreement on the inclusion
of an asphalt plant on the site. I can understand why it would be
advantageous to have an asphalt plant, but I must oppose the approval of this
special use condition. An asphalt plant would put out noxious fumes which
much of the time would be up-wind of my house. This combined with the
fact that air is many times trapped in this low valley area should raise concern
about air quality in the immediate area. I request that the asphalt plant be
denied.
Thank you for your concern in this matter.
• ely,
Ro ert Stahl
•
LINDSEY & BRUCE, P.C.
Attorneys and Counselors at Law
730 17th Street,Suite 370
Denver,CO 80202
Telephone: (303)573-5498
Tele owpy: (303)573-5537
Lr gnjnnnl>lAilh: ww.lindseybruce.com
M. DAVID LINDSEY n' HC, Jane M. Lawlis
ROBERT J. BRUCE `,, 2003 Robbin A.Lego
October 16, 2003
VIA FAX AND REGULAR MAIL
Weld County Planning Commission
c/o Chris Gothman
1555 N. 17th Ave
Greeley, CO 80631
Re: USR 1444, Heit Sand and Gravel Mine
Dear Commission Members:
I am counsel to SW Meadow, LLC, the applicant for a Use by Special Review Permit
scheduled for hearing before the Weld CountyPlanning Commission on October 21, 2003 at 1:30
p.m. Yesterday, I received a copy of a letter written to you by P. Andrew Jones, Esq. requesting
a continuance of the scheduled hearing.
First and foremost, the applicant is prepared to proceed as scheduled. My client's
representatives believe that they are entitled to a hearing on the date scheduled and that a delay is
unwarranted and improper. As you are well aware, the upcoming hearing is not a court trial and
the Colorado Rules of Civil Procedure and cases interpreting such rules do not apply. The
orderly administration of good government requires that the hearing proceed on the 21'.
Mr. Jones raises two reasons for the requested continuance: (1) a conflict of interest
between his firm and his clients and (2) the inability to present a separate traffic study. Neither
excuse supports the request.
The applicant should not be prejudiced due to a conflict of interest which the applicant
did not create and which involves others. There are plenty of attorneys in Colorado who are
capable of representing the objecting parties on the scheduled date. The failure to deal with the
conflict earlier should not impact my client's right to proceed according to schedule. SW
Meadow, LLC will be delayed in its right to a timely hearing given that its consultants have
already spent time and money preparing for the hearing. Unlike a criminal case, there is no
absolute right to counsel in a quasi-judicial hearing such as the Planning Commission hearing at
issue. Whether or not to have counsel is a matter of choice not a matter of right. Regardless of
whether the objecting parties participate in the hearing with counsel, they will still have the
EXHIBIT
6 °B
Weld County Planning Commission
October 16, 2003
Page 2
opportunity to present their concerns and evidence to the Commission.
The inability of the objecting parties to produce a traffic study by the date of the
scheduled hearing does not justify a delay. Note that the neighboring property owners, including
the objectors, have been on notice of the proposed mining permit application for nearly a year. A
neighborhood meeting was held on January 7, 2003. The permit application was officially filed
on February 27, 2003. A second neighborhood meeting was held on April 10, 2003 and a third
neighborhood meeting was held on July 1, 2003. Any concern over traffic or a perceived need
for an independent traffic study could have and should have been completed before now.
While we have no reason to believe that the request to postpone the hearing lacks a good
faith basis, it sets a bad precedent. Delay in government is not a good thing. County resources
are best utilized by processing land use matters in a prompt and timely manner and not spending
more time on these proceedings than is appropriate and justified under the circumstances.
SW Meadow, LLC has tried to work with all parities and address their concerns. The
application for approval of a sand and gravel mine is complete. It represents a good land use,
and the hearing for its recommendation should proceed this coming Tuesday.
Please feel free to contact me if you have any questions.
Very. ly oe s,
l
R rtJ.
cc: Mark D. Campbell (via fax)
Tug Martin (via fax)
P. Andrew Jones, Esq. (via fax)
ME Banks and Gesso, LLC 720 Kipling St.,Suite117
M® Lakewood, Colorado 80215
(303) 274-4277
C --:rL—ecrtax (303) 274-8329
www.banksandgesso.com
October 16, 2003 ?J03
Weld County Planning Department `,'
Attn: Chris Gathman I `"t
1555 North 17th Avenue
Greeley, CO 80631
RE: Heit Sand and Gravel Mine - USR-1444; Pre-Conditions to Board Hearing
Dear Chris:
We are in receipt of the Staffs Administrative Review comments and recommendation
for the Heit Sand and Gravel Mine. Attached you will find three items that we believe will
satisfy three of the conditions stipulated prior to receiving a hearing before the Board of
County Commissioners. A signage discussion follows as well, which we hope will
address the final condition.
The first item is an executed Surface Use Agreement between the Applicant and Kerr-
McGee Rocky Mountain Corporation (KMG). KMG is a mineral owner on the site. This
should serve to satisfy Condition 1.6 of the Recommendation of Approval. The second
item is the approval letter from the Division of Minerals and Geology, which effectively
states that they have reviewed the mine and reclamation plans and found them to be in
accordance with the State's rules and regulations regarding the extraction of sand and
gravel within the State of Colorado. As part of their approval process, the Division
reviewed and approved the Groundwater Impact Analysis and subsequent Monitoring
and Mitigation Plan for the project which was prepared by Wright Water Engineers and
which the County is in possession of. We believe that the Division's review and approval
of the Monitoring and Mitigation Plan demonstrates that "adequate attempt has been
made to mitigate property owners concerns in regards to well impacts" (Condition 1.C of
Recommendation for Approval). The third item is a letter from Lupton Meadows Ditch
Company, which states that they have reviewed the plans and have two concerns. The
Applicant commits to the two stipulations expressed in the Lupton Meadows letter, which
should satisfy Condition 1.D of the Recommendation for Approval.
Signage at the site will include one sign that will be located just inside the property on
the north side of the access road. The sign will be 3' tall by 4' wide and will include the
name of the operation, the Division of Minerals and Geology permit number, and a
contact phone number and address. The sign will be posted on two 4" x 4" posts and
will not be lighted. Hopefully this information is sufficient to satisfy Condition 1.A of the
Recommendation of Approval. If the County requires more detailed information about
the sign, please let us know so that we can supply whatever is needed to satisfy this
condition in a timely manner.
EXHIBIT
If you have any questions about anything discussed herein, please don't hesitate to
contact me at 303-274-4277. Thanks.
Sincerely,
Tug a n
Banks and Gesso, LLC
Cc: Project File
Mark Campbell, SW Meadow LLC
Bob Bruce, Applicant Attorney
Attach: Kerr-McGee Agreement
Lupton Meadows Ditch Letter
DMG Approval
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SURFACE USE AGREEMENT
This Surface Use Agreement("Agreement)is made this ILI day of February,2003,and is between
KERR-McGEE ROCKY MOUNTAIN CORPORATION C'KMRMC"), a Delaware corporation,
successor to HS RESOURCES,INC.and KERR-McGEE GATHERING,LLC("KMG"),formerly
known as HS Gathering L.L.C., both with an address of 1999 Broadway,Suite 3600,Denver,CO
80202,and Heit Farms,Ltd.(variously referred to herein as"Owner"or"Surface Owner"),with an
address of c/o Southwestern Investment Group,LLC,333 W.Hampden Avenue 0810,Englewood,
CO 80110.
A. Owner is the current surface owner of a parcel of land located in the Southeast'/.of
Section 13,Township 2 North,Range 67 West,Weld County,Colorado("Property"),
more particularly described in Exhibit A attached hereto and incorporated herein by
this reference.
B. Surtbce Owner is subject to the rights of the oil and gas mineral estate of which a
portion is now owned by KMRMC;
C. Owner intends to apply for and obtain mining permits for a sand and gravel mining
and processing operation known as the"Heft Sand and Gravel Mine"("Mine");
D• KMRMC currently operates and has the right to deepen,recomplete or rework the
existing wells ("Existing Wells") on the Property and drill new wells ("Future
Wells")on the Property.
E. This Agreement sets forth the parties' tights and obligations regarding the
relationship between the development bf the Property by Surface Owner and
KMRMC's operation and development of its oil and gas leasehold estate.
In consideration of the mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. EXISTING OIL AND GAS DPERATIONS ARE RESERVED.
Surface Owner shall provide KM]tMC no less than a 300 X 350 foot area around each
Existing Well (the "Existing Oil and Gas Operations Areas") as depicted on Exhibit A
attached hereto for the Existing Wells and for any operations conducted by ICMRMC in
connection with any Existing Wells,including,but not limited to,lease operating activities,
workovers,well deepenings,recompletions and fracturing.
2. FUTURE WELLS AND FUTURE OIL AND GAS OPERATIONS AREAS.
Pursuant to the Colorado O11 and Gas Conservation Commission ("COGCC") rules and
regulations,KMRMC has the right to develop,drill and operate additional oil and gas wells(each,a
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"Future Well")on the Property,including Future Wells which produce from or drain lands other than
the Property (which lands are pooled with portions of the Property) at the following drilling
locations: a square 400' X 400"area, the center of which is in the center of each quarter-quarter
section and a square 800'x 800",the center of which is in the center of each quarter section(each,a
"Future Vertical Well She").
Notwithstanding the foregoing,Surface Owner shall have the right to elect to require that
KMRMC directionally drill any Future Well from a location within one of the designated Existing or
Future Oil and Gas Operating Areas depicted on Exhibit A,by timely fWfilling the requirements of
either Section 2.A or 2.B.
A: If KMRMC proposes to drill a Future Well on the Property prior to the time Surface
Owner has received all necessary permits for its Mine from the State of Colorado
Division of Minerals and Geology ("DMG") and from Weld County, Colorado,
Surface Owner may elect to require KMRMC to drill the proposed Future Well
within an Existing or Future Oil and Gas Operations Area, by timely doing the
following:
1. Within 15 days after Surface Owner's receipt of a written notice from
KMRMC that it Intends to drill a Future Well on the Property,Surface Owner
shall deliver written notice to KMRMC advising that it has elected to require
KMRMC to directionally drill the proposed Future Well from one of the
Existing or Future Oil and Gas Operations Areas; and
2. Within 15 days after the delivery of Surface Owner's written notice of
election to require directional drilling,Surface Owner shall deliver a payment
of ollarsampto KMRMC for such Future Well
if it elects to require KMRMC to directionally drill from one of the Existing
or Future Oil and Gas Operations Areas.
If, but only if, Surface Owner timely complies with the requirements of Sections
2.A.1 and 2.A.2, KMRMC shall agree to confine its operations related all Future
Wells to those portions of the Property designated as Existing or Future Oil a.'d Gas
Operations Areas, including those access roads and all access and necessary
easements associated with flowlines, gathering lines and pipelines. Surface Owner
also agrees that, even if it has timely complied with the requirements of Sections
2.A.I and 2.A.2,KMRMC may make reasonable emergency,incidental or temporary
use of portions of the Property not designated as Existing or Future Oil and Gas
Operations Areas,provided such uses do not materially interfere with the operations
of Surface Owner's Mine. KMRMC shall be responsible for any damages it causes
to portions of the Property not designated as Existing or Future Oil and Gas
Operations Areas.
B. Surface Owner may also elect to require KMRMC to drill one or more Future Wells
within an Existing or Future Oil and Gas Operations Area, by timely doing the
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following:
1. Delivering a payment ofadollars fummo to KMRMC
within 10 days after receiving all necessary permits for its Mine from the
DMG and Weld County, Colorado, if such plans to not provide for Future
Vertical Well Sites. If requested,KMRMC shall consult with Surface Owner
and assist it in determining whether a proposed mining permit covers some or
all of a Future Vertical Well Site,
If, but only if, Surface Owner timely complies with the requirements of Sections
2.8.1 outlined above, KMRMC shall agree to confine its operations related to all
Future Wells to those portions of the Property designated as Existing or Final Oil and
Gas Operations Areas, including those access roads and all access and necessary
easements associated with flow lines,gathering lines and pipelines, Surface Owner
also agrees that, even if it has satisfied the conditions in Sections 2,8.1, KMRMC
may make reasonable emergency, incidental or temporary use of portions of the
Property not designated as Existing or Future Oil and Gas Operations Areas,
provided such uses do not materially interfere with the operations of Surface Owner's
Mine. KMRMC shall be responsible for any damages it causes to portions of the
Property not designated as Existing or Future Oil and Gas Operations Areas.
3. ACCESS.
a. Surface Owner shall at all times provide to KMRMC no less than a 30 foot wide
easement for access to the Existing and Future Oil and Gas Operations Areas.
KMRMC shall maintain access roads at its sole cost during the period of time that
KMRMCconducts operationsron the Property using such access.
b. Access to Existing and Future Oil and Gas Operations Areas may be changed by
mutual agreement of Surface Owner and KMRMC provided,however,all costs and •
expenses of the relocation shall be borne by Surface Owner if such change is
requested by the Surface Owner and by KMRMC if such change is requested by
KMRMC.
c. Surface Owner shall maintain and keep any access jointly used by Surface Owner
and KMRMC in good condition and repair,however,if KMRMC causes damage to a
road, KMRMC agrees to promptly repair any damage which it caused which is a
direct result of its use of the road. Neither KMRMC, nor Surface Owner shall
unreasonably interfere with the use by the other party of access roads.
4. BATTERIES AND EQUIPMENT(PRODUCTION FACILITIES),
KMRMC shall have the right to locate, build, repair and maintain tanks, separators,
dehydrators,compressors and other equipment reasonably appropriate for the operation and
production of any Existing or Future Wells within the Surface Facilities Area shown on
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Exhibit A and in any of the Existing and Future Oil and Gas Operations Areas.
5. FLOWLINES AND PIPELINES.
•
a. KMRMC and KMG shall have the right to lay flowlines and pipelines,which to the
extent possible will be located under or adjacent to access roads to the Existing and
Future Oil and Gas Operations Areas. All pipelines shall be located at a surface
depth of approximately 48 inches from the final graded elevation. Flowlines,which
are defined as those lines which carry water or hydrocarbons from the wellhead to a
production unit(such as a separator),shall be buried to a surface depth of at least 48
inches. The construction and burying of flowlines and pipelines shall be at the sole
cost and expense of KMRMC or its gas purchaser.
b. Surface Owner will not allow any extraction to occur, using as a baseline the the
surface of the original ground as of the date of this Agreement, closer than 25 feet
from any flowline or pipeline or pipeline.
c. Surface Owner shall not allow any stockpile of soil exceeding 5 feet in depth to be
placed over any flowline or pipeline.
d. When crossing KMG pipelines with heavy equipment,like earth moving.equipment,
Owner will maintain a minimum of four foot and a maximum of 6 foot of dirt
coverage, in addition to the existing cover over any flowline or pipeline, When
crossing KMG pipelines with trucks and lighter equipment, Owner will maintain a
minimum of two foot and a maximum of 6 foot of dirt coverage,to the existing cover
over any flowline or pipeline.
e. The depth of cover over the KMO flowlines or pipelines shall not be reduced or
drainage altered without KMG's written approval.
f. Any utility crossing must be a minimum of 18"inches beneath KMG flowlines and
pipelines.
g. Parallel utilities must maintain a minimum often foot separation,unless KMG grants
a lesser distance of separation. Owner will request that all utility companies contact
KMG prior to laying lines parallel to KMO flowlines or pipelines.
h. Construction of any permanent structure with KMO's flowline or pipeline easement
is not permitted.
i. Planting of trees and shrubs is not permitted on KMO's flowline or pipeline
easement.
j. A foreign pipeline shall not run parallel to KMO's flowlines or pipelines within
KMG's easement without written permission from KMG.
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k. Owner shall understand that KMG, per federal law, must mark the routing of its
underground facilities with aboveground pipeline markers and maintain those
markets. Markers will be Installed,and maintained,at every point the pipeline route
changes direction and adequate markers will be installed,and maintained,on straight
sections of pipeline to insure the safety of the public, contractors, KMG personnel
and KMO facilities.
I. In the event that Owner does not maintain the above standards or damages any KMG
flowlines or pipelines, or other KMG facilities, while conducting its mining
operations,Owner shall reimburse KMO from the cost of relocation,replacement or
repair.
6. NOTICE OF OPERATIONS.
KMRMC shall provide at least seven days' prior written notice to Surface Owner of any
operations in connection with the reworking,fracturing,deepening or other operation on any
wells;provided,however,that KMRMC shall provide at lease 60 days'prior written notice
to Surface Owner of the initial drilling of any Future Wells. Regardless of the foregoing
notice requirements,KMRMC shall have the immediate access to the Existing and Future
Oil and Gas Operations Areas in the event of an emergency.
The Notification shall describe the following:
a. The proposed starting date of the proposed activity;
b. The proposed operations to be performed at the site;and
c. The approximate duration of the proposed activities.
Not less than five working days prior to KMRMC mobilization on the applicable Oil and Gas
Operation Areas, either KMRMC or Surface Owner may request an on-site meeting. The
p;rpose of the meeting shall be to inform Surface Owner of the expected activity and to
coordinate site access,hazards, barricades,or any other issues.
7. NOTICE TO HOMEOWNERS AND BUILDERS,
Surface Owner shall furnish all buyers of the Property with a plat or map showing the access
roads,the Existing and Future Oil and Gas Operation Areas,production facilities and other
related facilities. In addition, the Surface Owner shall provide notice to all builders,
homeowners and other buyers of any portion of the Property front Surface Owner that:
a. There may be ongoing oil and gas operations and production in the Existing and
Future Oil and Gas Operation Areas on the surface of the Property;
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b. There may be additional wells drilled on the Existing and Future Oil and Gas
Operations Areas; and
c. Purchase of portions of the Surface Owner's Property,as successors in interest to the
Surface Owner, will be acquiring all of the Surface Owner's rights under this
Agreement and assuming these obligations undertaken by the Surface Owner
pursuant to this Agreement, including, but not limited to, the waiver provisions
provided in Section 9 below.
8. DRILLING AND COMPLETION OPERATIONS.
KMRMC shall endeavor to diligently pursue any actual drilling operations to minimize the
total time period and to avoid rig relocations or startup during the course of drilling. Surface
Owner waives any objections to continuous (i.e., 24-hour) drilling operations. KMRMC
shall conduct its operations in compliance with the provisions of the rules and regulations of
the COGCC set forth in Rule 603, subject to the setback waivers provided in Section 9
below.
9. EXTRACTION IN VICINITY OF OIL AND GAS OPERATIONS; SETBACK
REQUIREMENTS.
Unless otherwise mutually agreed to in writing by the parties,Surface Owner will not allow
any extraction or fill,using as a baseline the surface of the original ground as of the date of
this Agreement, within a radius of 150 feet from the center of any wellhead, without first
submitting in writing to KMRMC 60 days prior to beginning such activity a plan acceptable
to KMRMC for interim emergency procedures to include satisfactory access of a workover
rig and emergency vehicles. Upon conclusion of the extraction,Surface Owner will fill and
level the affected Existing or Future Oil and Gas Operations Areas within no less than a 350
foot X300 foot area around the wellhead. In no event shall Surface Owner mine or extract '
any portion of an access road,or within 80 feet of any wellhead or 50 feet of any production
equipment,such as oil storage tanks and separators.
Surface Owner will not locate inhabited buildings within 50 feet from the outer boundary of
Existing and Future Oil and Gas Operations Areas. Since Future Wells may be located at
any location within any Future Oil and Gas Operations Area, Surface Owner waives the
150-foot setback requirement provided in Rule 603 a. (2) of the COGCC rules and
regulations insofar as subsequent development may create new surface property lines within
150 feet of any Existing or Future Oil and Gas Operations Area. In the event the high
density area rules become applicable to any Future Wells, Surface Owner also waives the
high density set back requirements in Rule 603 b.of the COGCC rules and regulations. The
waivers provided herein shall be binding upon the successors and assigns of Surface Owner
and shall benefit ICMRMC, its successors and assigns under the existing oil and gas
leasehold estate.
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10. DEVELOPMENT PLANS.
Surface Owner has provided herewith complete copies of the proposed Pre-Mining Plan,
Mining Plan and Reclamation Plan. KMRMC has no objections to said plans as submitted as
of the date hereof. ICMRMC will not oppose such plans before any governmental agency so
long as the contemplated mining activity is materially consistent with such plans and this
Agreement. In the event any such plans are amended or revised, Surface Owner shall
promptly supply to KMRMC a copy of such amendments or revisions. This acceptance by
KMRMC in no way waives KMRMC's rights in this Agreement or obligations of Surface
Owner under the terms of this Agreement. Surface Owner acknowledges that KMRMC may
conduct oil and gas activities within the Future Vertical Well Sites or the applicable Oil and
Gas Operations Areas as provided herein and neither shall oppose KMRMC before any
agency or governmental proceeding if such oil and gas activities are proposed and carried out
in accordance with the terms of this Agreement.
11. LIMITATION OF LIABILITY,RELEASE AND INDEMNITY.
a. NO PARTY SHALL BE LIABLE FOR,OR BE REQUIRED TO PAY FOR,
SPECIAL,PUNITIVE,EXEMPLARY,INCIDENTAL, CONSEQUENTIAL OR
INDIRECT DAMAGES TO ANY OTHER PARTY FOR ACTIVITIES
UNDERTAKEN WITHIN THE SCOPE OF THIS AGREEMENT;
b. Except as to claims arising out of pollution or environmental damage(which claims
are governed by Section 12 below) or out of other provisions of this Agreement
(which claims shall be governed by the terms of this Agreement),each party shall be
and remain responsible for all liability arising out of those losses,claims,damages,
demands,suits,causes of action,fines,penalties,expenses and liabilities,including
without limitation attorneys' fees and other costs associated therewith (all of the
aforesaid herein referred to collectively as "Claims"), arising out of or connected
with each such party's ownership or operations on the Property, no matter when •
asserted, subject to applicable statutes of limitations. Each party shall release,
defend, indemnify and hold the other parties, their officers, directors, employees,
successors and assigns,harmless against all such Claims. This provision does not,
and shall not be construed to create any rights in persons or entities not a party to this
Agreement,nor does it create any separate rights in parties to this Agreement other
than the right to be indemnified for Claims as provided herein;
c. KMRMC shall not permit any liens to be filed on or otherwise attach to,the Property,
and in the event any such liens are filed by a person pursuant to any statute or any
lien attaches by operation of law or otherwise, KMRMC shall take all necessary
action, at its sole cost and expense, to have such lien discharged and released as
promptly as practicable,except that KMRMC shall have the right to file an operator's
lien against other owners of the oil and gas leasehold interest to recover amounts
owned to KMRMC;and
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6 of 14 11 71.00 C 0.00 Stew Monne°lark a Recorder
d. Upon the assignment or conveyance of a party's entire interests in the Property,that
party shall be released from its indemnification in Section 11.6 above,for all actions
or occurrences happening after the assignment or conveyance,
12, ENVIRONMENTAL INDEMNITY.
a. The provisions of Section 11 above,except for Section 11.a, shall not apply to any
environmental matters,which shall be governed exclusively by the following,subject
to the limitations of Section 11.a above;
b. "Environmental Claims"shall mean all Claims asserted by governmental bodies or
other third parties for pollution or environmental damage of any kind,arising from
operations on or ownership of the Property or ownership of the oil and gas leasehold
interest, whichever is applicable, and all cleanup and remediation costs, fines and
penalties associated therewith,including but not limited to any Claims arising from
Environmental Claims shall not include the costs of any remediation undertaken
voluntarily by any party,unless such remediation is performed under the imminent
threat of a Claim by governmental bodies or other third parties;
c. "Environmental Laws"shall mean any laws,regulations,rules,ordinances,or the of
any governmental authority(ies), which relate to or otherwise impose liability,
obligation, or standards with respect to pollution or the protection of the
environment, including but not limited to, the Comprehensive Environmental
Response,compensation and Liability Act of 1980,as amended(42 U.S.C.§9601 et
seq.),The Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et
seq.),the Clean Water Act(33 U.S.C. §§ 466 et seq.),the Safe Drinking Water Act
(14 U.S.C.§ 1401-1450),The Hazardous Material Transportation Act(49 U.S.C.§§
1801 et seq.), The Clear Air Act,and the Toxic Substances Control Act(15 U.S.C.
§§2601-2629); and
d. "Environmental Indemnification." KMRMC shall filly protect,indemnify,and hold
harmless Surface Owner and any lot owner who purchases a lot from Surface Owner
from any Environmental Claims relating to the Property or oil and gas leasehold
thereunder that arise out of its ownership and operation of the applicable Oil and Oas
Operations Areas. Surface Owner shall fully protect, indemnify and hold harmless
KMRMC from any and all Environment Claims relating to the Property that arise out
of their development of the Property.
13. EXCLUSION FROM INDEMNITIES.
The indemnities of any party herein shall not cover or include any amounts for which the
indemnified party may legally recoup from other third party owners without judicial process,
or that for which the indemnified party is reimbursed by any third party. The indemnities in
this Agreement shall not relieve any party from any obligations to third parties.
•
` Oct . 15. 2003 4:38PM .
I 111100 Mill 111111111111111111 N o•9 010 P• 10/15
MONO 0510612003 04:NP Weld Coenb,00
9 al 14 1171.00 0 0.00 Stew Moreno Clerklieeorder
14. NOTICE OF CLAIM FOR INDEMNIFICATION.
If a Claim is asserted against a party for which another party would be liable under the
provisions of Section 11 or 12 above,it is a condition precedent to the indemnifying party's
obligations hereunder that the indemnified party give the indemnifying party written notice
of such Claim setting forth all particulars of the Claim, as known by the indemnified party,
including a copy of the Claim(if it was a written Claim). The indemnified party shall make
a good faith effort to notify the indemnifying party within one month of receipt of a Claim
and shall affect such notice in all events within such time as will allow the indemnifying
party to defend against such Claim and no later than three calendar months after receipt of
the Claim by the indemnified party,
15. REPRESENTATIONS.
The parties represent to one another that each one has the full right and authority to enter into
this Agreement. KMRMC does not represent that it has rights to settle matters for the
mineral owners in the Property. KMRMC only has rights as a mineral lessee and this
Agreement only pertains to such rights as KMRMC may hold.
16. SUCCESSORS.
The terns, covenants, and conditions hereof shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns;provided,as to KMRMC,
successors and assigns shall be deemed limited to lessees under the oil and gas lease which
KMRMC owns. The rights and obligations provided in this agreement shall benefit and
burden Surface Owner,its successors and assigns.
17. TERM.
This Agreement shall become effective when it is fully executed and shall remain in hill •
force end effect until KMRMC's leasehold estate expires or is terminated,and KMRMC has
plugged and abandoned all wells and complied with the requirements of all applicable oil and
gas leases pertaining to removal of equipment.reclamation,cleanup and all other applicable
provisions of the leases and existing laws and regulations. When this Agreement ceases to
be in full force and effect,the parties shall execute any and all releases necessary to evidence
the fact that this Agreement shall no longer apply to the Property.
11 iii im2003
i m 4:38PM Mu 11111 ll IIIII Minn N°.9010 P. 11/15
3050050 05100/2008 0420P Weld County, CO
10 of 14 R 71.00 0 0.00 Steve Moreno Clerk&Recorder
19. NOTICES.
Any notice or other communication required or permitted under this Agreement shall be
sufficient if deposited in U.S.Mail,postage prepaid,addressed to each of the following:
jf to ICMRNIC:
Kerr-McGee Rocky Mountain Corporation
1999 Broadway, Suite 3600
Denver,CO 80202
Attention: Denver Basin Land Manager
If to Surface Owner:
do Southwestern lnvesteoent Group,LLC
333 W.Hampden Avenue#810
Englewood,CO 80110
and
Heit Farm,Ltd.
do Southwestern Investment Group,LLC,
333 W.Hampden Avenue#810,
Englewood,CO 80110
Any party may, by written notice so delivered to the other parties, change the address or
individual to which deliver shall thereafter be made.
20. RECORDING.
This Agreement,any amendment hereto,and any release entered into pursuant to Section 17
above, shall be recorded by KMRMC, which shall provide the other parties with a copy "
showing the recording information as soon as practicable thereafter.
21. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement,or the breach thereof,
shall be resolved by arbitration adnvnistered.by the American Arbitration Association under
its commercial rules,and judgment on the award rendered by the arbitrator(s)may be entered
in any court having jurisdiction thereof.
22. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State
of Colorado.
23. ENTIRE AGREEMENT.
Oct• 15. 2003 4:39PM No.9010 P. 12/15
111110 IINI1111111IIIIIIII1111IIIII IIIINI11IIIIIII
11 of 14 R 71.00 0.05/00/2003 04:20P
00 Stew Matins County,
8 Reorder
This Agreement sets forth the entire understanding among the parties hereto regarding the
matters addressed herein,and supersedes any previous communications,representations or
agreements,whether oral or written. This Agreement shall not be amended,except in written
form signed by all parties.
The parties have executed this Agreement on the day and year first above written.
KERR-McGEE ROCK - TAIN CORPORATION,
a Delaware co. . ' n,
By: C .
J ES t T•
ttorney •act
KERR-McGEE GATHERING LLC,
a Colorado limited liability company
By: Kerr-McGee Rocky Mountain Corporation,
Its sole memb
By: t�
AMES SO
Attorney-i.-^, t
Surface Owner:
Helt Farms, Ltd.
By: .4
Name:
Title: /44
STATE OF COLORADO )
CITY AND )SS.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this22 day of F ,2003,by
JAM'' -a-A1— eN as Attorney-in-Fact for KERR-McOEE ROCKY MOUNTAIN
M!
CO:- re—Aii+ . ' claware corporation,on behalf of that corporation.
if Witness my and official seal. 044
VeCaratela bnee1
Oct • 15. 2003 4:39PM No•9010 P. 13/15
111111111111 IIIIIA 111111111111111 11111 III 11111111 IIII
CO
12 Of00105/2003
t 71Q 00�D 0 0O Iltr d ono ds*&Recorder
Notary Public
My commission expires:
STATE OF COLORADO )
CITY AND )SS,
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this day of�,2003,by
JAMES P. WASON, as Attorney-in-Fact for KERR-McGEE ROCKY MOUNTAIN
CORPORATION, the sole member of KERR-McGEE GATHERING LLC, a Colorado limited
liability com.any,on behalf of that company.
4. ..d d official seal.
( ,
. F
Jr; otary Public
', sti r. --
M " ' •'•
s.
,'a44°1/D lQ rS
STATE OF COLORADO ) ~�l
I l t'' r
/ u : 7, 11
CITY AND )SS, ; „ .
COUNTY OF DENVER ) " t •'r" N r, •
•• •`
t.•.,
y,
—
The foregoing instrument was acknowledged before me this day of Feb �
Lebnyhte �' T-R_,T s1 E=R Z February',2003,by
Colorado corporation,
'as forrTy FAz�YI,ArT
rporadon,on behalf of that corporation.
Witness my hand and official seal.
(SEAL) ,
No ublic
My commission expires: A 3 - 1- .9-6 a 4/
1111111111111111,1111111111'iI1111110liiiI II 11111 No.9010 P. 14/15
• I'I
18 ofIt71,0000 D 00 teve Mae d rtrtinao Olak!Recorder
Exhibit A: Kerr McGee Surface Use Agreement;
Least Description of the Pr000rty
Lot 4 (in the S1/2 of the NE1/4); Lot 5 (in the N1/2 of the SE1/4); and Lot 6 (in the N1/2
of the SE1/4); all in Section 13, Township 2 North, Range 67 West of the 6th P.M.,
County of Weld, State of Colorado; Platted as Lupton Meadows Land Co., Division No.
1.
Also,
A strip of land 100 feet wide, being 50 feet wide on each side of the centerline of the
Denver, Laramie and Northwestern Railway Co. (formerly a Wyoming Corporation), as
originally located over, across and through the NW1/4 of the SE1/4 of Section 13,
Township 2 North, Range 87 West of the 6th P.M., County of Weld, State of Colorado,
said centerline being more fully described as follows:
Beginning at a.point on the south line of said NW1/4 of SE1/4 of said Section 13, a
distance of 465 feet, more or less, east of the SW corner of said NW1/4 of SE114 of send
Section 13; thence N 7 Degrees 58' W to a point on the north One of said NW1/4 of
SE1/4 of said Section 13, a distance of 270 feet, more or less, east of the NW corner of
said NW1/4 of SE1/4 of said Section 13, (being a portion of the strip of land described in
that certain deed recorded In Book 314 at Page 440).
Excepting therefrom a tract of land conveyed to Weld County by deed recorded June 12,
1914 In Book 393 at Page 416:
Also excepting therefrom a tract of land conveyed to Meadow Island Irrigation Company
No. 1 by deed recorded January 23, 1987 in Book 577 at Reception No, 1499388.
Uot.1 . 20113 4:39PM No•9010 P. 15/15
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— 0CT-16-03 13:26 FROM-Colorado Divlelon of Minerals A Geology ♦13030663667 T-666 P.001/002 F-090
STATE OF COLORACO
DIVISION Of MINERALS AND GEOLOGY
Department of Natural Resources
1313 Sherman st.,Room 215 C O ..O RAD O
Denver,Colorado 90203 DIVISION OF
Phone:(303)866-3567 MI VE cRA L S
FAX:(3oi)832.8106 G E O L O G Y
RECLAMATION-MINING
SA-!TT.SCIENCt
October 16,2OO3
ant OI ens
Mr.Mark Campbell Cover or
SW Meadow,LI-C Graf Wakher
333 W.Hampden Ave.,Ste.81O r"""'Ye Director
Englewood,CO 80110 Banal W.c°"any
Drn,«A Director
I ne Magee
File No.M-2OO3-016,Heft Sand and Gravel Mae, 112c Decision Letter-Conditions,Flnanc ai ink
Performance Warranty Request-Construction Material Operation
Dear Mr.Campbell:
On September 24, 2003, the Division of Minerals and Geology approved your 112c mining permit applica ion.
The conditions to the approval are noted below:
Stipulation No. Description
1. The Operator has submitted its proposed mining plan to Weld County for review of potential
floodplain impacts from the mina The Operator will implement any floodplain requirement imposed by Veld
County resulting from this review as part of its mining plan-
2, The Operator will implement the groundwater monitoring system as outlined in the Wright V'ate*
Engineers, Inc. report, titled "Groundwater Monitoring and Mitigation Plan for Heit Aggregate Rest urce
Operation, Weld County,Aquatic and Wetland Nursery and Coyle Property?and as defined in adequacy re iew.
At least 16 months of data will be collected prior to initiating mining activities and/or slurry wall installation 1 t the
Heit Mine. Based on analysis of collected data,an augmentation trigger mechanism will be proposed to MG in
the form of a Technical Revision to the permit and approved by DMG prior to initiating mining and slurry wall
activities at the site. The related information must include specific augmentation parameters as to volum es of
water involved,times of year for delivery,and the length of time augmentation will occur.
3. A reportable spill is a spill of any toxic or hazardous substance (including spills of petroleum
products) within the mined land permit area reportable to any Division of the Colorado Department of F ablic
Health and the Environment, the National Response Center,the Colorado Emergency Planning Commission,any
local Emergency Planning Commission, local Emergency Planning Committee, or the State Oil Inspector. The
Mine Operator shall notify the Division of Minerals and Geology(DMG) of a reportable spill within the r lined
land permit area using the same timcframe required by the permit, license, notice, statute, rule or regu ation
governing the reporting of the spill to the other appropriate agency. Notice of a reportable spill shall be FAX d to:
Minerals Program Supervisor,Division of Minerals and Geology,FAX(3O3)832-81O6. The FAX shall incl Ade a
callback number of a responsible company official for DMG staff to use a contact_
The amount of financial warranty set by the Division for this operation is 51,O52,152.OO. You must sun mit a
financial warranty in this amount and a performance warranty in order for us to issue a permit
PLEASE NOTE THAT MINING OPERATIONS MAY NOT COMMENCE UNTIL A PERMIT HAS
BEEN ISSUED BY THE DIVISION AFTER RECEIPT OF YOUR FINANCIAL WARRANTY AND
PERFORMANCE WARRANTY. A PERMIT WILL NOT BE ISSUED UNTIL WE VERIFY THE
O of Colorado
Ea Sala*satete\Ttno,g7 Is,eet flks'OLK INA-NWIMt"$ lga I geacigteJA93816 10224''AM.der Geological Survey
0CT-18-03 13:28 FROM-Colorado Division of Minerals & Geology +13098663567 T-058 P.002/002 F-030
ADEQUACY OF BOTH YOUR FINANCIAL WARRANTY AND PERFORMANCE WARRANTY.
If you have any questions,please contact me.
Sincerely,
es";
.Pickford
Environmental Protection Specialist
Enclosure
cc: Paul Gesso,Banks and Gesso,LLC
I
c000cumca..a scm soRsto i s.uuv\7a,00nin r,wrr.w Fanwt,cnu4-Ar-Iv_M2o03016 KAe}amra16 rozxa1 AM doe
LUPTON MEADOWS DITCH COMPANY
PO Box 305
Ft Lupton, CO 80621
Phone 970 785-2147
Fax 970 785-6368
October 14, 2003
Banks& Gesso, LLC
c/o Tug Martin
720 Kipling St
Suite 117
Lakewood, CO 80215
Dear Tug,
This letter is to inform all concerned that the Board of The Lupton Meadows Ditch Company has
reviewed the plans for the Heit Sand and Gravel Mine. The Board's concerns with the plans were
the set back from our ditch for the slurry wall and any crossing specs for ingress and egress
points. After my conversation with you on the phone October 6,2003 I assured the Board you
were committed to working out these details. The Board has authorized the following statements
regarding the plans.
1. The plans are adequate as long as there is a minimum set back of 20'(twenty feet) from
our ditch to any slurry wall construction and an adequate access road is maintained for the ditch
company's use.
2. Any ditch crossings construction specifications shall be reviewed and approved by the
Board before any work is allowed. Any culverts shall be a minimum of a 4'(four foot) squash.
type with appropriate construction methods used.
Sincerely, Howard (Corky) Cantrell,
Lupton Meadows Ditch Secretary,
ft::k.C,‘AH r\
V s v
•
BEFORE THE MINED LAND RECLAMATION BOARD
STATE OF COLORADO
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
IN THE MATTER OF THE APPLICATION OF SW MEADOW, LLC FOR A 112c
RECLAMATION PERMIT, FILE NO. M-2003-016.
THIS MATTER came before the Mined Lands Reclamation Board ("Board") on
September 24, 2003 in Denver, Colorado for a hearing on the Section 112c application
for a reclamation permit by SW Meadow, LLC ("Applicant") in accordance with C.R.S.
§ 34-32.5-114. Robert Bruce, Esq. appeared on behalf of the Applicant. Objectors Robert
and Lavenia Temmer, and Neil and Laura Coyle appeared on their own behalf. Kate
Pickford appeared on behalf of the Division of Minerals and Geology("Division").
The Board, having considered the parties' presentations and having been
otherwise fully informed in the premises,hereby enters the following findings of fact,
conclusions of law and order:
1. The Applicant seeks a Section 112c reclamation permit for a 102 acre surface sand
and gravel pit known as the Heit Pit located in Section 13, T2N, R67W, 6th P.M.,
Weld County, Colorado.
2. The proposed permit area is located west of the South Platte River, three miles from
Fort Lupton. The Applicant proposes a mining disturbance of approximately sixty-
one acres. The proposed post-mine land use is a reservoir. The Applicant proposes
to construct a slurry wall around the pit, de-water the pit during mining, and discharge
the water into the South Platte River. The proposed pit would average twenty-six feet
in depth.
EXHIBIT
J (DD
1
3. The Division received timely objections from Leonard K. Vargas,Aquatic and
Wetland Company, William Gee,Will and Linda Piper, Robert E &Lavenia
Temmer, Todd and Audrey Schroeder,Robert L. and Mary Ellen Stamm, and Neil
and Laura Coyle.
4. The Board has jurisdiction over the parties and the subject matter of this case
pursuant to C.R.S. § 34-32.5-114.
5. The Board appointed a prehearing conference officer who conducted a prehearing
conference on June 20, 2003 in Denver, Colorado, and prepared a proposed
prehearing order. Parties who appeared at the prehearing conference included the
Applicant, and Objectors Aquatic and Wetland Company, Robert and Lavenia
Temmer, and Neil and Laura Coyle. All other objectors failed to appear, and thereby
lost their party status in accordance with Construction Materials Rule 2.7.3(4).
6. At the commencement of the hearing,Aquatic and Wetland Company announced that
it has settled its dispute with the Applicant and withdraws as an objector in this
matter.
7. The Board adopted the proposed prehearing order with modifications to reflect the
withdrawal of Aquatic and Wetlands Company.
8. The Division recommends approval of this application with two stipulations, set forth
below.
9. The issues set forth in the prehearing order are:
A) Has the Applicant proposed measures to minimize impacts to the
hydrologic balance in the aquifer beneath the proposed mine site to protect
surface vegetation,including nursery stock and wetlands?
B) Has the Applicant complied with the State Engineer's rules governing
injuries to water rights?
C) Has the Applicant planned to minimize impact to surface water systems
within and adjacent to the proposed permit area?
2
D) Did the Applicant post notice of the application at the site of the proposed
mine of sufficient size and number to clearly identify the site,providing its
name, address and phone number?
E) Has the Applicant proposed a plan that complies with state and federal
water quality protection laws?
F) Has the Applicant proposed a plan to strip, stockpile and protect topsoil?
G) Has the Applicant proposed a weed control plan?
H) Is the proposed financial warranty amount set at a level, which reflects the
actual current cost of completing the reclamation plan?
Impacts to Surface Water and Ground Water
10. The Objectors are concerned that the proposed operation could impact shallow water
wells as well as wetlands in the vicinity of the pit. They seek a condition that would
require the Applicant to monitor groundwater and report results. They are also
concerned about possible impact to surface waters.
11. Construction Materials Rule 3.1.6 provides that"disturbances to the prevailing
hydrologic balance of the affected land and of the surrounding area and to the
quantity or quality of water in surface and groundwater systems both during and after
the mining operation and during reclamation shall be minimized..."
12. Among other means of satisfying this requirement is that the Applicant comply with
applicable Colorado water laws and regulations governing injury to existing water
rights, and that the Applicant comply with applicable federal and Colorado water
quality laws.
13. The Applicant plans to monitor groundwater for sixteen months prior to constructing
the slurry wall to establish existing conditions. It expects the slurry wall to draw
down the aquifer approximately two or three feet down-gradient from the pit, and
cause the water level to rise, or"mound "to the same degree on the up-gradient side
of the pit. However, these effects on groundwater level should occur only in the
3
immediate vicinity of the pit;there should be no draw-down or mounding effect in the
aquifer at the locations of any domestic wells.
14. According to data from the Office of the State Engineer, the average depth of wells
within six hundred feet of the proposed pit is thirty feet, and the average static water
level is six feet below ground level. Thus, a drawdown of three feet would not
adversely affect any of these wells, assuming the drawdown is that significant at any
one well location; the drawdown effect substantially decreases as the distance from
the wall increases.
15. The Applicant also proposes to minimize the mounding and drawdown effect of the
slurry wall through means of a French drain system. The Applicant plans to install
the system along the southern and western sides of the proposed permit area to divert
water from the areas of mounding to the areas that could be affected by a draw-down.
16. If this mining operation did de-water a well,the Applicant has proposed several
alternative measures to ensure that the water right is replaced.
17. The State Engineer's Office recognizes that the proposed operation will consume
water through evaporation, dust control and de-watering the pit. The Applicant must
have an approved Temporary Substitute Supply Plan and a Gravel Well permit prior
to affecting groundwater. The State Engineer's Office requires that the Applicant
identify the location of all wells within 600 feet of the permit area and obtain a waiver
of objections from the owners. Alternatively, any dispute over these rights would be
addressed through a formal hearing with the State Engineer's Office.
18. This operation would be subject to a Stormwater Management Plan through the
Department of Health to protect surface water from such events as a hazardous
4
material spills or flooding from a major storm. Aggregate processing water will be
managed separately. The slurry wall will seal groundwater from the pit,preventing
infiltration and possible contamination.
19. The Applicant proposes to store hazardous materials on site. It would store these
materials in approved, above-ground vessels within an area that is protected with
berms and a heavy-duty liner to ensure that leaks and small spills are contained.
20. The weight of the evidence supports the conclusion that impacts to the prevailing
hydrologic balance and to the quantity and quality of surface and groundwater
systems in the vicinity of the proposed mine site would be minimized, and would
comply with state and federal water quality laws and the laws governing injury to
existing water rights as well as Colorado water quality laws.
21. The Applicant's plan complies with Construction Materials Rule 3.1.6.
Notice At the Proposed Mine Site
22. The Objectors argue that the Applicant did not post a notice at the proposed mine site
for a sufficient duration, and that the notice was too small to practically inform the
public.
23. Construction Materials Rule 1.6.2(1)(b)requires the Applicant to post notices at the
location of the proposed mine site of sufficient size and number to clearly identify the
site as the location of a proposed mining operation.
24. The Applicant posted a 24"X36"sign on a post at the entrance to the mine site on
February 28a',prior to the time the Division found the application complete. This
notice was sufficient to identify the site as a proposed mining operation.
5
Topsoil Protection
25. The Objectors are concerned that the Applicant will remove topsoil and fail to protect
it from erosion.
26. Construction Materials Rule 3.1.9 requires that mine operators strip and stockpile
topsoil in a location separate from overburden and mineral. Operators must stockpile
topsoil in locations and configurations that minimize erosion,vegetating the
stockpiles as necessary to stabilize the stockpiles.
27. The Applicant plans to segregate topsoil from overburden and vegetate any stockpiles
that exist for longer than one growing season. The Applicant plans to spray the
stockpiles with water to control dust. It plans to redistribute topsoil at a depth of
approximately sixteen inches on the reservoir shorelines, with contour furrows to
reduce erosion and encourage plant growth.
28. The weight of the evidence supports the conclusion that the Applicant's plan would
adequately protect topsoil.
29. These measures satisfy Rule 3.1.9.
Weed Control
30. The Objectors are concerned that weeds will infest the Applicant's mine site.
31. Construction Materials Rule 3.1.10(6)requires the Applicant to control all prohibited
noxious weeds.
32. The Applicant plans to inspect the mine site for noxious weeds at least twice per
month once it has commenced operations. If it finds noxious weeds, it plans to use
6
mechanical controls first; if that fails to effectively control the weeds, it plans to use
chemical controls, and cultural or biological controls would be used as a last resort, in
accordance with the Weld County Code and the Colorado Noxious Weed
Management Act.
33. The weight of the evidence suggests that this plan would control weed infestation.
34. The Applicant's plan satisfies Rule 3.1.10(6).
Financial Warranty
35. The Objectors are concerned that the size of the financial warranty is sufficient to
ensure that the proposed operation is adequately reclaimed.
36. Construction Materials Rule 4.2.1 requires that the Applicant post a warranty that
reflects the actual current cost of fulfilling the requirements of the Reclamation Plan.
It must include an amount equal to five (5%)percent of the cost of reclamation to
cover the Division's administrative costs.
37. The Division evaluated the sufficiency of the Applicant's proposed warranty using a
computer program designed for use in the coal program and approved by the U.S.
Department of Interior, Office of Surface Mining. This program assigns values to
each reclamation task based on the details associated with the particular operation,
including time, equipment and materials. The program also accounts for the
Division's 5% administrative costs.
38. Based on this evaluation, the Division is requiring a warranty of$1,052,152.00.
39. The weight of the evidence supports the conclusion that this warranty amount is
sufficient to cover reclamation costs for the proposed operation.
7
40. The Applicant's proposed warranty amount satisfies Rule 4.2.1.
8
ORDER
Based on the foregoing findings of fact and conclusions of law, the Board orders that the
application of SW Meadow, LLC for a 112c reclamation permit,M-2003-016 is hereby
approved,with the following conditions:
1) A reportable spill is a spill of any toxic or hazardous substance (including spills of
petroleum products)within the mined land permit area reportable to any Division of the
Colorado Department of Public Health and the Environment, the National Response
Center, the Colorado Emergency Planning Commission, any local Emergency Planning
Commission, local Emergency Planning Committee, or the State Oil Inspector. The
Mine Operator shall notify the Division of Minerals and Geology (DMG) of a reportable
spill within the mined land permit area using the same time frame required by the permit,
license, notice, statute,rule or regulation governing the reporting of the spill to the other
appropriate agency. Notice of a reportable spill shall be faxed to Minerals Program
Supervisor, Division of Minerals and Geology, Fax Number(303) 832-8106. The fax
shall include a callback number of a responsible company official for DMG staff to use
as a contact.
2) The operator will implement the groundwater monitoring system as outlined in
the Wright Water Engineers, Inc. report, titled"Groundwater Monitoring and Mitigation
Plan for Heit Aggregate Resource Operation, Weld County,Aquatic and Wetland
Nursery and Coyle Property," and as defined in adequacy review. At least 16 months of
data will be collected prior to initiating mining activities and/or slurry wall installation at
the Heit Mine. Based on analysis of collected data, an augmentation trigger mechanism
will be proposed to DMG in the form of a Technical Revision to the permit and approved
by DMG prior to initiating mining and slurry wall activities at the site. This trigger
mechanism must be specific as to volumes of water involved, times of year for delivery,
and the length of time augmentation will occur.
3) The operator has submitted its proposed mining plan to Weld County for review
of potential floodplain impacts from the mine. The operator will implement any
floodplain requirements by Weld County, resulting from this review, as part of its mining
plan.
DATED this /71 day of Arlie. r , 2003.
FOR THE COLORADO MINED LAND RECLAMATION BOARD
Harry Jav -nick,Vice Chairman
Mined Land Reclamation Board
9
CER1ThICATE OF SERVICE
I, 01-tri L1 L „o ftr&Q , hereby certify that on this
day of Ob,Q,r , 2003, I deposited a true copy of the
foregoing Findings Of Fact, Conclusions Of Law, And Order in the United States Mail,
first class postage paid, addressed to the following:
S.W. Meadow,LLC Robert Bruce, Esq.
333 W.Hampden Ave., Suite 810 730 17th Street, Suite 370
Englewood, CO 80110 Denver, CO 80202
Counsel for the Applicant
Robert and Lavenia Temmer Neil and Laura Coyle
10691 WCR 25 9046 WCR 25
Fort Lupton, CO 80621 Fort Lupton, CO 80621
Aquatic and Wetland Company Leonard K. Vargas
9999 WCR 25 11503 WCR 20 ''A
Fort Lupton, CO 80621 Fort Lupton, CO 80621
William Gee Will and Linda Piper
8995 WCR 25 11230 WCR 20
Fort Lupton, CO 80621 Fort Lupton, CO 80621
Todd and Audrey Schroeder Robert L. and Mary Ellen Stamm
8721 WCR 25 11076 WCR 18 •
Fort Lupton, CO 80621 Fort Lupton, CO 80621
And by inter-office mail to:
Tawnya Deherrera
Division of Minerals and Geology
Kate Pickford
• Division of Minerals and Geology
Stephen Brown
Attorney General's Office
10
0ct . 21 . 2003 8 : 09AM
ND •9201 P . 3
10/14/03 TUE 10:18 FAX 970 356 1111 LL00 Ij002
AGREEMENT
•
5
THIS AGREEMENT is made thiso2f day of September, 2003 between Welt Farm,
Ltd. ("Landowner") and SW Meadow, LLC and Aquatic and Wetland Company, Brad
Windell, John T. Wendell, and Gregory Wendell (collectively, "AWC").
RECITALS
A. Landowner owns property located in Section 13, Township 2 North, Range 67
West of the 6th P.M., as more specifically set forth on Exhibit "A," attached hereto
(the "Landowner Property").
B. Landowner.and SW Meadow, LLC (collectively, "Applicant") propose to mine sand
and gravel on the Landowner Property, and have filed DMG 112 Permit
Application Number M-2003-016 with the Colorado Division of .Minerals and
Geology ("DMG")and Use By Special Review Application 1444 in Weld County in
furtherance of this objective.
C. Brad Windell, Jay .Windell and Gregory Windell own lands contiguous to the
Landowner Property, specifically described in Exhibit "B" attached hereto (The
"Windell Property"), which lands are used by the Aquatic and Wetland Company
for the purpose of cultivating wetland and other plant species for sale.. AWC was `�
concerned that Applicant's proposed mining activity would negatively affect the
Wells and the cultivated fields on the Windell Property, and for this and other F'
reasons, filed objections to DMG 112 Permit Application No. M-2001-046 and USR
Application 1444. AWC remains an interested party in each of these proceedings,
D. Landowner, SW Meadows and AWC wish to resolve their differences with regard
to M-2003-016 and USR 1444.
AGREEMENT
In consideration of the mutual promises and other valuable consideration exchanged
herein, Applicant and AWC agree as follows:
1) Recitals. All recitals are incorporated here.
2) Slurry Wall. Applicant shall not dry mine the Landowner Property. . A slurry wall
shall be installed surrounding the entire area proposed for mining prior to the
commencement of mining. Such slurry wall, as installed, shall meet or exceed the
standards set forth by the Office of the State Engineer in place at the time of its
construction. So long as Applicants meet said standards, AWC shall not tender any
objection to the Office of the State Engineer regarding the specifics of the slurry
wall.
EXHIBIT
6E-
1
H..\GWWE.MININGtAgreement 03092324oc
Oct . 21 . 2003 8 : 10AM No . 9201 P . 7
10/14/U3 1Ut5 10:A! rm. 970 356 1111 LLRO X008
13) Attorneys Fees. The substantially prevailing party shall be awarded attorneys
fees in any dispute arising out of or related to this agreement.
14) .Cooperation Regarding Parties. It is the intent of the parties hereto that the
parties to this agreement shall be the Aquatic and Wetland Company, the owner of
the AWC lands, if different,than AWC, the owner of the lands proposed for mining,
and the gravel operator contracted to remove the gravel from the property. Because
of time constraints, the parties must act upon information and belief regarding the
identity of some parties, without the benefit of formal title and contractual review.
Should it appear,.upon further review, that an entity that should have been included
was not, or that a party has been improperly joined, the parties agree to cooperate
in the amendment of the agreement to effectuate their intent.
HEIT FARM, LTD.
By: -11-4/(-ti-0-1- of Aa z./a6fi a7
Its tte-iti,fsA_
SW MEADOW,y LLC/�/ %
By: .
Itsy
AQUATIC AND WETLAND COMPANY
By; i1�
Its
:' /Id
4N. � J /J
(JOHN T. WINDELL �+
GREGOlgt43tELL
5
H:tGRAVEL MININOWgreement 0309Z32.doc
0ct .21 . 2003 8 : 10AM No . 9201 P. 9 10/14/uo suss 10:cu rite 970 366 1111 LI@O
X1008
STATE OF COLORADO )
COUNTY OF WELD j
0 T e for going inst ment was acknpwl#dged before me tills da of
n , 2003, b 7 Y
Aquatic and Wetland Company, asx � for
WITNESS my hand and official seal.
My Commission Expires: 3. 331.( - :,V fis
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STATE OF COLORADO ) Nr Conway hakes:oa36imb
COUNTY OF WELD )
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� Th foregoing Instrument was acknowledged before me this day of
, 2003, by Brad Windell. 7S
WITNESS my hand and official seal:
My Commission Expires: '6• Y
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STATE OF COLORADO ) op C04_
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COUNTY Mr Conn 0330-2C05OF WELD )
OThe foregoing instrument was acknowledged before me this R day of
Cii , 2003, by John T. Windell.
•
• WITNESS my hand and official seal.
My Commission Expires: �j `;�-Z r WwN ..pos,
/ '4_ / ���� i Hit i
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H:IGRAVEL MININGVigreement 0309232N My gams tokn:O*30 jW1
oct • 21 . 2003 8:09AM No . 9201 P . 4
10/lama sun icesu me 970 356 1111 LIAO f�003
3) Pre-Slurry Wall Requirements. Prior to the installation of the slurry wall, Applicant
shall, at Its sole cost and expense:
a) Perform.a 24 month site specific study of groundwater conditions. Such plan
shall include but shall not be limited to biweekly monitoring of ground water
levels in and around the Landowner Property, for the first year, and monthly
monitoring thereafter. AWC and. applicant shall jointly agree on a party to
perform the monitoring. At the conclusion of the study period, the Applicant shall
present a report summarizing its findings to AWC, and the Division of Minerals
and Geology, estimating the impact of the proposed slurry wall on ground water
levels In the area generally, and on the Windell Property specifically, and
identifying specific mitigation strategies designed to minimize Impact to
groundwater levels. The study shall identify a "trigger point" for groundwater
mitigation action of no more than 2 feet in deviation from pre-mining levels, and
shall require monitoring of ground water levels on the Windell Property no less
than quarterly for the life of the DMG permit.
b) Install an equalizing pipeline in the area to be outside and to the North, East and
West of the slurry wall boundary. The purpose of such pipe shall be to capture
water and direct it around the slurry wall to the Windell Property, in such manner
as to mitigate the shadow effect caused by the slurry wall. Prior to installation,
the Applicant shall provide AWC plans for the pipeline prepared by a Colorado
Registered Engineer. At its sole cost and expense, AWC shall have the right to
have such plans reviewed by its own engineer. No construction shall begin until
AWC approves the plans; provided, however, that such approval shall not be
unreasonably withheld. Unless agreed otherwise In writing by the parties, once
installed, the pipeline shall remain in place and shall remain operational,
regardless of the outcome of the 24 Month Water Study or any triggers Imposed
therein.
c) Relocate Well No. 50354-F to a point further North on the Windell Property
designed to minimize the shadow effect of the slurry wall on the well. The
Applicant shall be responsible for all costs arising out of or related to the
relocation of the well and its integration with existing AWC Irrigation systems,
including but not limited to obtaining all required administrative or legal
approvals, connecting the well to the existing irrigation system, and installing a
new pump and other mechanical devices, if necessary: Applicant shall 'select
technical and legal counsel to perform the necessary tasks, should AWC desire
its own counsel in the process in addition to Applicants selected counsel, AWC
shall bear the cost of such counsel. The parties shall cooperate In the selection
of a well site and the routing of necessary pipelines. Prior to any construction or
application for a replacement permit, the Applicant shall submit plans, prepared
by a.Colorado registered engineer, depicting the proposed new well location, the
equipment to be installed at the well site, and the pipeline(s) or other devices
needed to connect the new well to the existing AWC irrigation system. At its
discretion and at its sole cost and expense, have such plans reviewed by its own
2
H'1GRAVEL MININGIAgrooment 0309232.doc
0ct • 21 . 2003 8 : 10AM No . 9201 P . 5
10/14/U3 1VE 10:19 1Aa 970 366 1111 LLAO X1004
•
engineer. No construction shall begin until AWC approves the plans; provided,
however, that such approval shall not be unreasonably withheld. The intent of
this provision is to provide an operational well substantially similar to well 60354
in its existing location. If a site proves non-productive through no fault of AWC,
the Applicant shall have the burden of selecting another site beginning the
process anew.
4) Post-Slurry Wall Requirements. After the Installation of the slurry wall, should
ground water fluctuations on the Windell Property exceed the trigger identified by
the 24 month study, the Applicant shall implement the following incremental
measures:
a) The Applicant shall deliver surface water to the Windell Property in an amount
necessary to restore groundwater levels to pre-mining levels. Such water rights
shall be legally available for delivery to and use upon the Windell Property for the
purposes of groundwater recharge. Applicant shall promptly reimburse AWC for
any loss of nursery stock incurred as a result of the lowering of the water table
below the trigger point.
b) If, in spite of Applicants efforts to mitigate, groundwater levels remain below the
Identified trigger point for a period of 90 days, the Applicant shall pay AWC the
lesser of 1) the appraised value of all affected acres; or 2) $90,000 in cash. The
$90,000 figure shall be escalated at 6% per annum for the life of the permit no.
M-2003-016. The parties shall jointly select a hydrologist and a real estate
appraiser who shall identify the affected areas and the value, per acre, of the
affected acres, respectively. AWC shall retain ownership of the affected acres.
AWC, at its discretion, may use the funds provided by the Applicant to purchase
an alternative property, and, if it does, the Applicant shall relocate AWC nursery
stock to the newly selected property at its sole cost and expense. Once a
payment has been made for affected acres, AWC shall not be entitled to an
additional payment for the same acres, regardless of ground water fluctuations,
provided, however, that additional payments may be made in later years for
additional affected acres. Nothing in this provision shall be construed to relieve
Applicant of the responsibility for implementation of the ongoing groundwater
mitigation strategies set forth herein, including, but not limited to the provision of
surface water to AWC under subparagraph (a) above.
5) Miscellaneous Provisions. As further consideration for the withdrawal of AWC's
objections in the DMG and County proceedings, Applicant agrees to :
a) To plant wetland vegetation on the shorelines of the pit, as reclaimed.
b) Include weed control and watering the seeding plan,
c) Include cool season grasses in the planting mix, and to Increase the seeding rate
to 40 pounds pure live seed per acre.
3
H,IGRAVEL MININGIAgruemerrt 0309232,doa
Oct • 21 . 2003 8 : 10AM No • 9201 P. 6
10/larua sun 10:4u rags. 970 356 1111 LLO'O zoos
d) To eliminate berms along the Northern boundary of Landowner Property as
mining adjacent to that boundary Is completed, if practicable, Applicant shall
confer and consult with AWC regarding the berm design criteria.
e) To identify tree species planned for planting and the quantity and location of
proposed plantings and to confer and consult with AWC regarding those
selections.
6) Amendment to Existing Applications. Applicant shall amend Application M-2OO3-
016 and USR 1444 to be consistent with the terms of this Agreement.
7) Term. This agreement is intended to be perpetual, unless such term is amended in
writing by the parties.
8) Covenant. This Agreement is intended to be and is a covenant burdening the
Landowner Property for the benefit of the AWC property, shall run with the lands of
landowner and AWC, and shall be binding upon the heirs, successors and assigns
of the parties. This agreement shall be recorded in Weld County at Applicant's
expense.
9) Mutual Release. AWC agrees to withdraw all objections to .DMG 112 Permit
Application M-2OO3-016 and to USR Application 1444, so long as the final mining
and reclamation plan submitted to the Mined Land Reclamation Board and the Weld
County Board of County Commissioners complies with the terms of this Agreement.
AWC reserves the right to attend and participate in the USR proceeding to the
extent necessary to ensure compliance with the terms of this Agreement. Applicant
releases and waives any claim it has or may have arising out of the irrigation
practices presently in use on the AWC property or Water Court Decree No. 99 CW
15O.
10) Contingency. This Agreement is contingent on the approval of DMG Permit
Application M-2003016 and USR Application 1444, as they may be amended.
11) Landowner Bears Obligations. At present, Heit Farm Ltd. has contracted to sell
the Landowner Property to SW Meadow, LLC. Upon dosing, Heft Farm, Ltd. and
shall be relieved of all obligation under this Agreement, and SW Meadow shall
assume such obligations. In like manner, each successive owner of the Landowner
Property.shall bear the burdens associated with this Agreement. In the event Heit
Farm, Ltd. does not close with SW Meadow, LLC, Heit Farm, Ltd. shall not be
obligated to perform its obligations under this Agreement until it determines to mine
the property.
12) Entire Agreement. This Agreement represents the entire agreement between the
parties and no oral modification shall be recognized. Any amendment to this
Agreement shall be in writing signed by both parties.
4
H:IGRAVEL MININGIAgree 0309232.doo
Oct . 21 . 2003 8 : 10AM No . 9201 P . 8
10/19/uo our 10:cu me LP
870 360 1111 LO @1007
STATE OF COLORADO )
ss.
COUNTY OF WELD )
The foregoing ins ument was ac owledged befge e this eli day of
Qc-k_ , 2OO3, by as t for
Heit Farm, Ltd.
WITNESS my hand and official seal.
My Commission Expires: Arno/War
VIRGINIA DONOA1
NOTARY PUBLIC
STATE OF COLORADO No PUbIIC
My Commission Expires 413012065
STATE OF COLORADO )
COUNTY OF WELD )
The foregoing instrument was acknowledged before me this I 0 day of
�d�1 , 2003, by rnv1._ (;,per as fl iencr',v- for
SW Meadow, LLC,
WITNESS my hand and official seal.
My Commission Expires: NePS/61 = :�`
t '
mom:; .V _L q\
14
9 � .N.
My Commission Expires
Aug.25,2007
r
6
H:IGRAVEL MINiNGVlgreement 0300232doc
0ct • 21 . 2003 8 : 19AM No .9201 P . 10
10/1s/ua rus i0:z1 rxa 970 356 1111 LLOO tail009
STATE OF COLORADO )
) ss.
COUNTY OF WELD )
The foregoing instrument was acknowledged before me this Sr day of
O', atsf/', 2003, by Gregory Windell.
WITNESS my hand and official seal,
My Commission Expires: • �:
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w'M"K'MA(A13103-1190N MINE GROUNDWATER EVALUATION
, , ,�
Exhibit 6G is
Oversized , Color Map of
Mine Groundwater
Evaluation
Please see Original File
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