HomeMy WebLinkAbout920052.tiff RESOLUTION
RE: ACTION OF BOARD CONCERNING 1ST AMENDED LEASE AGREEMENT FOR SAND, GRAVEL
AND AGGREGATE (83RD AVENUE PIT)
WHEREAS, the Board of County Commissioners of Weld County, Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested
with the authority of administering the affairs of Weld County, Colorado, and
WHEREAS, by Lease Agreement with Hall-Irwin Construction Company dated
April 16, 1990, the Board did lease the sand, gravel and aggregate in a portion
of property being further described as part of Section 31, Township 6 North,
Range 66 West of the 6th P.M. , Weld County, Colorado, and
WHEREAS, at the meeting of December 30, 1991, the Board was presented with
an amended lease agreement for said property, and
WHEREAS, at said meeting of December 30, 1991, the Board deemed it
advisable to continue said matter to January 22, 1992, to allow time for further
review, and
WHEREAS, after study and review, at the meeting of January 22, 1992, the
Board deemed it advisable to withdraw said matter.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, the 1st Amended Lease Agreement for Sand, Gravel and Aggregate
(83rd Avenue Pit) be, and hereby is, withdrawn.
The above and foregoing Resolution was, on motion duly made and seconded,
adopted by the following vote on the 22nd day of January, A.D. , 1992.
1 /, / / ! ,1 BOARD OF COUNTY COMMISSIONERS
/v V(/6v
ATTEST: WELD COUNTY, COLORADO
v
Weld County Clerk to the Board
Geor e Kennedy, Chairman
BY: ,7/{-5,1�J GY ` f , .;: i A' (7Y LI-C-
Deputy Clerk to the Board- " Constance L. Harbert, Pro-Tem
APPROVED AS FORM:
Cs'e E. U. Dir‘y
EXCUSED
County Attorney Gordon E. Lacy ,
� � � ?
W. H. ebster
920052
FIG 0o,31
G • LL - v' co tr s T E G C H
1ST AMENDED LEASE AGREEMENT FOR SAND, GRAVEL AND AGGREGATE
( 83rd AVENUE PIT)
This 1st Amend" Lease Agreement made and entered in this
,j0 - day of Ltri,r, bid , 1991, by and between HA -IRWIN
CONSTRUCTION COMPANY, a Colorado Corporation, with ffic located
at 3026 Fourth Avenue, Greeley, CO 80631 , herea to known as
"Lessor, " and WELD COUNTY COLORADO, by and throu h e Board of
County Commissioners of Weld County, located at 91 enth Street,
Greeley, CO 80631, hereafter known as "Lessee.
Background of Agreement. The fol g background
statements are made to aid in the understanding nd interpretation
of this Agreement:
A. Lessor owns a sand, gravel d ggregate mine on its
property located in Section 31, Townshi orth, Range 66 West of
the 6th P .M. , Weld County, Colorado, here ter known as the "Herbst
Pit . " -'
B. Lessee leased the sand, gr el and aggregate in a portion
of the Herbst Pit by virtue of a L ase Agreement dated April 16 ,
1990 . cX
C . Lessee desires t6�66 le8 e additional property adjacent to
the Herbst Pit, which is owns the 83rd Avenue Pit, which is not
presently owned by Less o permitted by a Use by Special Review
Permit which is described follows :
All that par o e Northeast Quarter of the Northeast
Quarter of e o heast Quarter and all that part of the
Southeast Quart of the Northeast Quarter of Section 31,
Townshi 6 Nort , Range 66 West of the 6th P.M. , Weld County,
Colorado lyin South of the Cache La Poudre River, Being 65
acres 9or or less, hereafter known as the "83rd Avenue Pit"
which\ particularly described in Exhibit "A" .
D. Less' r is presently the owner of eleven ( 11) shares of W.
R. Jones Ditc Company Water Stock, all or a part of which will be
necessary properly augment the mining operation on the
"Additions Lease Property" and which is hereafter known as the "W.
R. Jones itch Company Water. "
N , THEREFORE, in consideration of the mutual promises and
coven nts contained herein, Lessor hereby leases to Lessee the
Add' ional Lease Property and Lessee agrees to lease such property
un r the terms and conditions set forth herein.
1 . Description of location and minerals to be removed.
Lessee shall have the right, but not the obligation, to remove
sand, gravel and aggregate from the Additional Lease Property.
920052
911534
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2 . Reservation of other minerals to Lessor. The Lease
pertains only to sand and gravel . All other minerals are reserved
to the Lessor.
3 . Term. This Amended Lease is effective as of the date
it is executed and shall expire exactly thirty ( 30) years after
April 16 , 1990 .
4 . Rent. The rent for this Amended Lease Agreement is
$179 , 000 . 00 payable entirely in advance at the time of execution of
the Lease Agreement, which payment is hereby acknowledged. Lessee
shall pay no royalties to the Lessor during the time of this Lease
Agreement.
5 . Additional Rent. In addition to the amount shown in
Paragraph 4 , Lessee shall pay the following amounts :
(a) Lessee shall pay all taxes connected with the property
including, but not limited to, ad valorem taxes , if any.
(b) Lessee shall pay all general and special water
assessments on the W. R. Jones Ditch Company Water or on
any water connected with the property or used in the
property augmentation plan.
(c) Lessee shall pay all costs of water if necessary, for an
augmentation plan beyond the eleven ( 11 ) shares of W. R.
Jones Ditch Company Water.
(d) Lessee shall pay all the costs to reclaim the area
pursuant to the Reclamation Plan developed by Lessor and
filed with the State of Colorado Mined Land Reclamation
Board, together with any changes required during the term
of the Lease.
(e) Lessee shall pay all costs for additional bonding to
permit Lessee to remove materials from the property, if
required.
( f) Lessee shall pay all costs connected with any amendment
to the Special Use Permit Plan initially developed by
Lessor.
(g) Lessee shall pay all costs to remove the material .
6 . Payment of Rent. All rent shown in Paragraph 4 , above,
was paid at the time of the execution of the Lease . All rent shown
in Paragraph 5 , above, shall be paid within ten ( 10) days after
billing by Lessor to Lessee. Any money not paid when due, shall
accrue interest at 18% per annum.
2
7 . Title. This Lease shall be taken subject to all
easements, restrictions, and covenants of record. Prior to the
execution of this Lease, Lessee, at its cost, may examine title to
insure that it is adequately protected from adverse claims and may
review the title insurance commitment given to Lessor in connection
with its purchase of the property.
8 . Limitation on Warranties . No warranties of title or
otherwise shall extend by operation of this Lease from Lessor to
Lessee of any kind. Lessor makes no warranties as to the quality
or quantity of sand, gravel and aggregate on the property or its
fitness as a sand, gravel and aggregate mine.
9 . Promises of Lessor. Lessor shall do the following
making such judgments and decisions in the process that are proper
in Lessor' s sole discretion:
(a) Make application for a Special Use Permit for the
Additional Lease Property so that it can be used by Lessee as
a sand, gravel and aggregate mine similar to the Herbst Pit.
(b) Attempt to provide an augmentation plan using up to
eleven ( 11) shares of the W. R. Jones Ditch Company Water ( all
water beyond the eleven ( 11 ) shares of the W. R. Jones Ditch
Company Water shall be provided by Lessee if necessary to
provide a proper augmentation plan) .
(c) Attempt to develop a Reclamation Plan and Attempt to
obtain approval of the Reclamation Plan from the Mined Land
Reclamation Board.
(d) Attempt to do all those items necessary to cause the
Additional Lease Property to be available as a sand, gravel
and aggregate mine.
(e) Pay any special assessments for the Weld County 83rd
Avenue Local Improvement District.
( f) 9 (b) shall be deemed satisfied if Lessor constructs a
slurry trench around the permitted area which is of low enough
permeability that the State Engineer will accept the lined
pits as reservoirs and no longer requiring augmentation for
evaporative losses pursuant to State law.
10 . Risks . While Lessor will attempt to do all those items
set out in Paragraph 9 above, Lessee understands that approvals
from governmental authorities and, specifically, approval of a new
Special Use Permit, is subject to the risk that it will not be
approved. All risks connected with non-approval for any reason of
the said Special Use Permit, the Mined Land Reclamation Plan, the
Augmentation Plan or any other governmental authority are assumed
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by Lessee. Lessee ' s sole and exclusive remedy in the event it does
not believe Lessor has fully performed the tasks set forth in
Paragraph 9 shall be to terminate this Lease subject to the Option
to Purchase set forth in Paragraph 17, below, if then still in
effect.
11 . Reclamation. Lessee shall perform all reclamation
required by any reclamation plan filed with the State of Colorado
Mined Land Reclamation Board.
12 . Indemnity. Lessee shall hold harmless and indemnify
Lessor for any and all negligent acts and/or omissions for any
intentional torts committed by Lessee, its agents and employees
including, but not limited to indemnification of Lessor ' s
attorney' s fees and costs .
13 . Contingency. This Amended Lease is contingent only upon
purchaser closing on its Contract to buy the Additional Lease
Property from the present owner of such property. If Lessor, after
using due diligence, is not able to purchase the Additional Lease
Property pursuant to such Contract, this Amended Lease shall
automatically terminate and both parties relieved of all
responsibilities under this Agreement. Termination of this
Agreement shall not affect the Agreement between Lessor and Lessee
for the Herbst Pit .
14 . Non-assignment. The Lessee shall not assign or
sublease this Lease or any portion of this Lease, nor shall it
sublease the property to any person, firm or corporation without
the prior written consent of Lessor.
15 . Compliance with Special Use Permit. The Lessee shall
be required to follow all requirements and standards of any Special
Use Permit obtained by Lessor on the property.
16 . Bond. Lessee shall be responsible for the additional
cost of any bond necessary to permit Lessee, during the term of
this Lease, to remove sand, gravel and aggregate from the
Additional Lease Property and all water rights connected with it or
the amount necessary to pay the increased bonds necessary if such
increase is occasioned by adding the Additional Lease Property to
the Herbst Pit.
17 . Option to Purchase.
(a) Grant of Option to Purchase Water. Subject to the terms
of this Option, Lessee shall have the right to purchase the
eleven ( 11) shares of the W. R. Jones ditch Company Water
Stock. The 11 shares of the W. R. Jones Ditch shall be made
available for augmentation of the 83rd Avenue Pit until the
pit is lined. This shall not preclude use of any water from
4
the 11 shares which is in excess of the water required for
augmentation of the 83rd Avenue Pit for other augmentation
purposes .
(b) Expiration of Option. This Option to Purchase shall
expire if not exercised within two ( 2 ) years of the effective
date of the sublease Lease as shown on Page 1 .
(c) Option Amount. The purchase price for the Option shall
be One Dollar ( $1 . 00) .
(d) Method of Exercising Option. Lessee shall give written
notice to Lessor advising of the date, time, and place for a
closing to occur which closing date shall not be less than
twenty ( 20) days from the date of delivery of such notice and
such closing date shall not extend beyond the term of the
Option set forth in Paragraph (b) above.
(e) Exercise of Option. If the Option is exercised, all of
Lessee' s promises, covenants, and indemnification shall
survive closing of the transfer of ownership of property to
Lessee .
( f) Option to Purchase Storage Space. In the event Lessor
lines the ponds in accordance with Paragraph 9 ( f) , Lessee
shall have a right of first refusal to purchase 16 acre feet
of water storage at a cost of $
18 . No Liens . Lessor shall not permit or alter any liens to
be filed against the Additional Lease Property, except for the lien
for special assessment for the 83rd Avenue Local Improvement
District .
19 . Default. Time is of the essence of this Agreement.
(a) By Lessor: If Lessor shall default in compliance with
any of the provisions of this Agreement, Lessee ' s sole and
exclusive remedy shall be to terminate this Lease subject only
to retaining the Option to Purchase water pursuant to
Paragraph 17 , above, if then still in effect .
(b) By Lessee : Should Lessee be in default of any of the
terms of conditions of this Agreement, Lessor shall have the
right ( in addition to any other remedy to which Lessor is
entitled under this Lease) to ( 1) terminate the Agreement,
including the Lease of property and the Option to Purchase
shown in Paragraph 17, above, ( 2 ) file suit for specific
performance or damages, or both. In addition, any monies not
paid by Lessee to Lessor may be recovered in a separate action
for money damages . Each of the foregoing remedies are
nonexclusive.
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(c) In the event of litigation between Lessor and. Les e
arising out of this Agreement, the court shall award he
prevailing party all reasonable costs and expenses , incl ding
attorneys ' fees .
20 . Miscellaneous .
( Governing Law. This Agreement shall be gove ned by and
co trued in accordance with the laws of t State of
Colo ado .
(b) E .ir= Agreement. This Agreement sets orth the entire
understa< : ' . • an agreement of the parties reto with regard
to the su.• 'ect at@.er hereof in lieu of a prior agreement,
discussion\, u•derstanding and may not a amended except in
writing and c by the party again t which it is sought
to be enforce.• .
(c) Inurement. hI- • rms and prov' sions hereof shall inure
to the benefit o tf d be binding upon the parties hereto,
their respective h_ rs� personal epresentatives , successors
and assigns .
(d) Force Majeure. N- -r .-rty hereto shall be liable for
any loss or damage due t. - delay in the due performance of
the terms hereof, except •.- the payment of money, by reason
of strikes, lockouts and troubles, fires, riots, wars ,
embargoes and civil comm.tio • r acts of God. Any such delay
shall extend performan e onl o lopg as such event is in
progress . N------
(d) Survival . The •rovisions of is Agreement shall survive
closing.
/ WELD COUNT COLORADO, by and
through the Board of County
Commissioners •f Weld County
ATTEST:
By:
Weld Cou y Gord• acy, n
Clerk to
the Bo d.
By:
De ty Clerk
6
N\
HALL-IRWIN CONSTRUCTION MPANY
a Colorado Corporatiorp,
ATTEST:
Vice President. Its Preside
(CORPORATE SEAL) V�C�
STATE OF COLORADO) \\ ��
SS.
COUNTY OF WELD )
The foregoing instr was'"acknowledged before me this
day of , 1991, ,
President of Hall-I in Construction Company, a Colorado
Corporation.
Witness my nd and seal . N.
My comma: sion expires :
/ \,-� Notary Public
N\
i \
\
7 gy
LEGAL DESCRIPTION
A tract of land being the northeast quarter of the southeast
quarter and all that part of the southeast quarter of the northeast
quarter of said Section 31, which lies South of the Cache La Poudre
River, all in Township 6 North, Range 66 West of the 6th Principal
Meridian, County of Weld, State of Colorado and being more
particularly described as follows :
Commencing at the northeast corner of said Section 31 and
considering the East line of said Section 31 to bear South 01 ' 20 '
22" West, with all other bearings contained herein being relative
thereto;
Thence South 01 ' 20 ' 22" West, 2349 . 72 feet to the true point of
beginning;
Thence South 01 ' 20 ' 22" West, 1625 . 83 feet to the southeast corner
of said northeast quarter of the southeast quarter;
Thence south 88 ' 33 ' 23" West, 1421 . 84 feet to the southwest corner
of said northeast quarter of the southeast quarter;
Thence North 02 ' 28 ' 54" East, 2098 .57 feet to a point on the South
Bank of the Cache La Poudre River;
Thence easterly along said South Bank by the following six ( 6 )
courses ,
South 71 ' 51 ' 41" East, 19 . 92 feet;
South 87 ' 39 ' 23" East, 227 . 27 feet
North 71 ' 00 ' 28" East, 418 . 35 feet;
North 88 ' 49 ' 43" East, 159 . 80 feet;
South 43 ' 29 ' 31" East, 537 . 64 feet;
South 49 ' 21 ' 03" East, 259 . 84 feet to the true point of
beginning;
Said tract of land contains 65 . 408 acres, more or less, and is
subject to any rights-of-way or other easements as granted or
reserved by instruments of record or as now existing on said tract
of land.
Lshall2 .bap
8
4ift mtmORAn®ulli
WilDe To_ Commdsf nernty
Commissioners _— Date__—_. Decembet14L,__19Q1._______
COLORADO Frnn _ Lee D. Morrison, Assist. Weld County Attorney__ .__
subpuctr Amended Gravel Leases __
Attached are amended leases for the Herbst and 83rd Avenue pits .
The leases will be placed on the Agenda for Monday, December 23,
1991 .
The only substantive change in the Herbst lease is to recognize the
existence of the 83rd Avenue Local Improvement District and require
payment by the County (as previously agreed) of a proportionate
assessment for the area to be mined by the County (paragraphs 6,
and 21) . The agreement also indicates that the requirement of the
USR that a contribution be made towards paving of 83rd Avenue was
met by the Local Improvement District which financed paving of 83rd
Avenue .
The 83rd Avenue Pit lease, as amended, will provide that Hall-Irwin
will be able to create a reservoir and, in return, will assume the
local improvement district assessment for the 83rd Avenue pit. The
County will have an option to purchase storage in the reservoir for
augmentation purposes .
Morrison
Assistant Weld County Attorney
pc : Drew Scheltinga
Dave Becker
Don Warden
mtmORAfDUflu
hiDe Board of County
To Commissioners Date December 18, 1991
COLORADO From Lee D. Morrison, Assist. Weld County Attorney
Subject: Amended Gravel Leases
Attached are amended leases for the Herbst and 83rd Avenue pits .
The leases will be placed on the Agenda for Monday, December 23,
1991 .
The only substantive change in the Herbst lease is to recognize the
existence of the 83rd Avenue Local Improvement District and require
payment by the County (as previously agreed) of a proportionate
assessment for the area to be mined by the County (paragraphs 6,
and 21) . The agreement also indicates that the requirement of the
USR that a contribution be made towards paving of 83rd Avenue was
met by the Local Improvement District which financed paving of 83rd
Avenue.
The 83rd Avenue Pit lease, as amended, will provide that Hall-Irwin
will be able to create a reservoir and, in return, will assume the
local improvement district assessment for the 83rd Avenue pit. The
County will have an option to purchase storage in the reservoir for
augmentation purposes .
//
. Morrison
Assistant Weld County Attorney
pc : Drew Scheltinga
Dave Becker
Don Warden
RESOLUTION
RE: ACTION OF BOARD CONCERNING FIRST AMENDED LEASE AGREEMENT - 83RD AVENUE
GRAVEL PIT
WHEREAS, the Board of County Commissioners of Weld County, Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested
with the authority of administering the affairs of Weld County, Colorado, and
WHEREAS, by Lease Agreement with Hall-Irwin Construction Company dated
April 16, 1990, the Board did lease the sand, gravel and aggregate in a portion
of property being further described as a part of Section 31, Township 6 North,
Range 66 West of the 6th P.M. , Weld County, Colorado, and
WHEREAS, the Board has been presented with an amended lease agreement for
said property, and
WHEREAS, the Board deems it advisable to continue said matter to January
22, 1992 at 9:00 a.m. to allow time for further review.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the First Amended Lease Agreement for Sand, Gravel and
Aggregate for the 83rd Avenue Pit with Hall-Irwin Construction Company be, and
hereby is, continued to January 22, 1992 at 9:00 a.m.
The above and foregoing Resolution was, on motion duly made and seconded,
adopted by the following vote on the 30th day of December, A.D. , 1991.
BOARD OF COUNTY COMMISSIONERS
ATTEST: WELD CO TY COLORADO
Weld County Clerk to the Board
/ Gor acy, airman
BY: !// -ti /� .�
Deputy C eI Clerk'to he Board George Kenn y, Pro-Tem
APPROVED A 0 FORM: EXCUSED
Constance L. Harbert
— ,,e7/774-4-7
County Attorney C. W. Kirby A
W. H. Webster
911538
CC- - +-0a),L- 132w/p/t/ 'CO/173- , � , tR ) HO1,13
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