HomeMy WebLinkAbout982187.tiff RESOLUTION
RE: APPROVE MINING LEASE FOR "BEARSON" PROPERTY FOR SAND, GRAVEL AND
AGGREGATE AND AUTHORIZE CHAIR TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Mining Lease for the "Bearson"
Property for Sand, Gravel and Aggregate between the County of Weld, State of Colorado, by
and through the Board of County Commissioners of Weld County, on behalf of the Department
of Public Works, and Darrell L. and Nelva M. Bearson, 9208 Weld County Road 25, Fort Lupton,
Colorado 80621, with terms and conditions being as stated in said lease, and
WHEREAS, after review, the Board deems it advisable to approve said lease, a copy of
which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Mining Lease for the "Bearson" Property for Sand, Gravel and
Aggregate between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Public Works, and Darrell L.
and Nelva M. Bearson, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said lease.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 9th day of November, A.D., 1998.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO ,
7
ATTEST: S /=•J � �/ ;r l ice . Ao..�` Gig L�
Constance L. Harb rt, Chair
Weld County Clerk .�'O�iy= �;
W. H. aster, Pro-Tem
BY:
Deputy Clerk to �� � t
��.r�� George Baxter
OV AST M: �� /�OZ?,�� /
Da alI
my Aft ney
Barbara J. Kirkmeyer
982187
EG0037
Kit .61;ss> OFFICE OF COUNTY ATTORNEY
PHONE (970) 356-4000 EXT.4391
FAX (970) 352-0242
915 TENTH STREET
P.O. BOX 1948
GREELEY, CO 80632
COctober 22, 1998
COLORADO
Darrell Bearson
9208 Weld County Road 25
Fort Lupton, CO 80621
RE: Mining Lease
Dear Darrell:
Enclosed is the final version we previously discussed to include the change you requested regarding
the return of water rights in the event of abandonment of the gravel pit by the County and the
addition of headings to certain other paragraphs. I have provided the lease to the Board of County
Commissioners for administrative review and anticipate that it will be placed on the agenda for
formal action. I anticipate that the Agreement can be placed on the agenda November 9, 1998. I will
be out of the office for the two weeks preceding but will be present on the ninth either to further
discuss the matter with the Board or to have the Board formally approve the Agreement. Your
presence, although certainly welcome, is not necessary to the process.
If the Agreement is acceptable to you, please execute two originals and have your signature notarized
and return the originals to this office. One is executed by the Board of County Commissioners and
one of the duplicate originals will be then returned to you for your records. Once executed,the
closing would consist of conveyance of the shares of Lupton Meadows stock by Special Warranty
Deed and assignment which closing can probably be accomplished by mail rather than a formal
closing.
Thank you again for your continued cooperation in this and the Koenig Pit endeavor. Your patience
and willingness to negotiate through the complications is much appreciated.
Yours ly,
nn
'U/91(91itAi✓
Lee D. Morrison
Assistant Weld County Attorney
LDM/db:Let/Bearson
Enclosures
pc: Bruce Barker 982187
Frank Hempen
BOARD OF COUNTY COMMISSIONERS
REVIEW/WORK SESSION REQUEST
DEPARTMENT: COUNTY ATTORNEY DATE: October 20, 1998
PERSON REQUESTING: Lee D. Morrison,*ss stant Weld County Attorney
Brief description of the problem/issue: Bearson Mining Lease
This Office, in coordination with the Public Works Department,has negotiated a lease with Darrell
Bearson for property southeast of the existing Koenig Pit. The royalties will be$.45 per yard spread
out over time so that the Bearsons will not get more than$50,000 in any one year. In addition to the
gravel rights, the Bearsons are conveying approximately enough Lupton Meadows ditch water to
deal with augmentation requirements,at least in the summer months. Preliminary biological studies
have been done and Public Works is prepared to submit an application to the County and to the
Division of Minerals in the very near future. The Bearsons have approved the form of the proposed
lease and signatures will be obtained before the Board formerly considers the lease.
Recommendation to the Board: Approve gravel lease.
Place on Work
AAaenddaa Session
George Baxter V/
Dale Hall V ,
Connie Harbert ✓J
Barb Kirkmeyer \i j
Bill Webster
LDM/db:Bearson
pc: Don Warden
Frank Hempen
Bruce Barker
Instructions for Mining Lease:
Send Lease to Darrell
Give to Board for pass around.
If the Board says schedule a Work Session, schedule it as close to the 9`h as possible (after
the 9th)
If the Board says put on agenda, put on the agenda for the 9th
Give Carol the originals when returned from Darrell.
Made changes to execution had to be redone.
O19O1217
D35
MINING LEASE FOR"BEARSON" PROPERTY FOR SAND GRAVEL AND AGGREGATE
THIS LEASE made the 9th day of November , 1998 between Darrell L.
Bearson and Nelva M. Bearson of 9208 Weld County Road 25, Ft. Lupton, Colorado County of Weld,
State of Colorado, (hereinafter referred to as"BEARSON" ) and BOARD OF COUNTY
COMMISSIONERS OF WELD COUNTY, COLORADO, a body corporate and politic operating pursuant to
the laws of the State of Colorado and the Weld County Home Rule Charter, doing business at 915 Tenth
Street, City of Greeley, County of Weld, State of Colorado, hereinafter referred to as"COUNTY."
BEARSON, in consideration of the Agreement set forth herein to be kept and performed by COUNTY, and
of the payment of royalties by COUNTY as provided herein, and subject to the terms, conditions, and
provisions, contained herein, leases to COUNTY that certain tract of land situated in Weld County, State of
Colorado, which is particularly described in Exhibits"A"attached hereto and made a part hereof, for the
purposes of mining, removing, processing, storing, and marketing therefrom all sand, gravel, and
aggregate, all of which are herein referred to as materials.
1. TERM OF LEASE-This Lease shall be in effect for a period of seven years from the date
of regulatory approval or six months after the date of signature whichever is earlier. Should
COUNTY be delayed in obtaining a Mined Land Reclamation Permit by reason of an
administrative denial and the need to appeal such decision, BEARSON agrees to toll the
running of the term during the administrative delay for a time not to exceed one year. This
lease constitutes the sole and exclusive right to prospect and remove materials during its
term. Mining shall be completed within five years of the effective date of this agreement but
materials may be stockpiled and removed during the sixth and seventh years of this lease.
The term of the lease may be extended upon the request of the COUNTY on a year to year
basis by written consent from BEARSON, which consent shall not be unreasonably
withheld .
2. CONSIDERATION - Consideration for this lease in hand paid is hereby acknowledged in
the amount of$10.00. Royalties under the lease shall be $.45 (forty-five cents) per yard
removed from the property. Annual royalty payments, including deferred payments, shall
not exceed $50,000 per year in any one year and the excess shall be deferred to the
following year on a first in first out basis and may be continued (at BEARSON'S option)
past the term of the lease for a period of time not to exceed five years. Notwithstanding the
foregoing, an initial payment prior to mining shall be made in the amount of$10,000.00 to
be credited against the royalty payments. COUNTY shall maintain and make available to
BEARSON records of material removed from the property. Additional consideration for the
lease on the part of the County will be provided in the form of the 2 'A acre parcel
described in¶ 1 of the INTERGOVERNMENTAL AGREEMENT, dated July 6, 1998 by and
between Weld County by and through its Board of County Commissioners hereinafter
referred to as"Weld County," and the Ground Water Management Subdistrict of the Central
Colorado Water Conservancy District, and additional consideration by Bearson shall be
provided in the form of the easements described in¶ 1 of the INTERGOVERNMENTAL
AGREEMENT, dated July 6, 1998 by and between Weld County by and through its
Board of County Commissioners hereinafter referred to as"Weld County,"and the Ground
Water Management Subdistrict of the Central Colorado Water Conservancy District.
3. SURFACE RIGHTS OF COUNTY-COUNTY may clear brush, trees, undergrowth, fences
internal to the property, corrals, and other improvements, as may be reasonably necessary
to explore for materials or to locate pits and stockpile in processing areas and in order to
obtain access to these premises, and to carry on its operations hereunder, COUNTY shall
have the right to make use of all roadways presently existing on the leased premises, and
shall have the further right to build such additional roads as may be necessary for the
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production and removal of materials hereunder. In building such roads, COUNTY may use
materials from the leased area, and shall not be required to pay any additional royalties for
materials so used. COUNTY may maintain and operate rock crushing and screening
equipment on the leased premises, if it should so desire, to process materials thereon.
This right shall not include the right to operate or maintain any concrete or asphalt batch
plant on the premises. COUNTY may, subject to the provisions contained herein, also
erect such buildings and install such machinery and equipment as may be useful in
connection with its operations hereunder.
4. WATER -BEARSON represents that they own sufficient interest in the Lupton Meadows
Ditch to provide water for augmentation to avoid injury to other water users from
evaporative water loss from the completed gravel pits. BEARSON also agrees to make
water available for the term of the Lease for the purposes of dust abatement for the
premises and access roads to the premises. BEARSON agrees to convey twenty-six
shares of Lupton Meadows Ditch along with any dry up covenants and transfer documents
to transfer shares and to cooperate to provide evidence of prior water use and testify in
water proceedings as made be deemed necessary by the COUNTY. COUNTY will be
responsible for obtaining any necessary substitute supply plan, augmentation plan or water
supply agreement.
5. PERMITS -COUNTY shall be responsible for obtaining all necessary State, COUNTY, and
Federal permits for the operation on the subject premises at its own expense. Weld
COUNTY shall exercise reasonable diligence in obtaining all necessary permits in a timely
fashion. The operation on the premises shall be conducted in compliance with those
permits as may be determined by the agency legally responsible for enforcing those
permits. BEARSON agrees to cooperate with Weld COUNTY and to execute any
necessary documents to assist Weld COUNTY in obtaining the necessary permits.
6. PROTECTION AND RESTORATION OF SURFACE- COUNTY will be responsible for
restoring the premises in accordance with a reclamation plan approved by the Colorado
Mined Land Reclamation Board or Division as determined by that agency. BEARSON shall
be consulted by the COUNTY in the preparation of said plan .
7. REMOVAL OF IMPROVEMENTS AND EQUIPMENT-All improvements and equipment
placed on the leased premises by COUNTY, except fences, and gates, shall remain the
property of COUNTY and COUNTY shall have the right to remove such property prior to
the expiration of this Lease.
8. INDEMNIFICATION OF BEARSONS -COUNTY agrees to indemnify BEARSON against
liability on all claims for damages and injuries to third persons or third persons' property
claimed to have resulted from the acts or omissions of COUNTY or its agents or employees
in conducting the mining operation during the term of this lease.
9. FENCING-COUNTY shall have the right to remove all fencing on the property during the
course of the operation, with the exception of fencing along the eastern boundaries of the
property. COUNTY agrees to restore the three strand barbed-wire fence along the west
property line of the premises once operation is completed unless such requirement is
waived by BEARSON.
10. USE OF SURFACE BY BEARSON - BEARSON may continue use of the surface of the
premises for the first six months of the term or until the permits are obtained, whichever is
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Bearson Lease-3
later, provided there is no interference with the exploration, survey and planning for the
mining operation. Thereafter, BEARSONS shall not use the surface of the premises during
the term of the Lease except as written consent is given by the Director of the Public Works
Department for COUNTY. This shall not preclude from inspecting the premises to
determine compliance with this Lease provided such inspections do not interfere with the
operations or create a safety hazard for Weld COUNTY or its agents or employees or the
BEARSONS.
11. SURRENDER- COUNTY shall have the right to surrender this Lease at any point to the
BEARSON upon written notice provided that all restoration, other than planting, pursuant to
paragraph 6 herein, has been completed in accordance with the Mined Land Reclamation
Permit. Provided, further, that should the COUNTY have partially excavated either of the
proposed pits prior to surrender, it shall excavate that pit to a minimum size as designated
herein or pay the sum of$10,000 as liquidated damages and not as a penalty. The
minimum size for pond "A" shall be ten acres and the minimum size of pond "B"shall be
three acres. Upon surrender under this paragraph, County shall transfer back to Bearson
all shares of Lupton Meadows Ditch Company not required to augment the water loss
from the excavated ponds._
12. DEFAULT BY COUNTY- In the event that default occurs in the performance of Sections 2,
3, 5 and 6 of this Lease by COUNTY, BEARSON shall have the right to give a 180-day
notice in writing to COUNTY, demanding the correction or removal of such default. In the
event COUNTY fails to correct or remove such default within such period, BEARSON may,
at their option, terminate this Lease by notice and the tendering of a sum equivalent to the
fair market value of the sand, gravel, and aggregate still in place at the time of termination.
If this Lease is terminated by BEARSON pursuant to this section, the BEARSON shall have
no further right to remedies against COUNTY except the forfeiture of this Lease. COUNTY
shall have sixty days after such termination within which to remove any plant, structures,
equipment, or stockpile sand, gravel, or aggregate placed on the leased premises by
COUNTY.
13. DISCHARGE OF WATER-COUNTY shall have the right to discharge waters pumped from
the ponds created by the mining operation on the premises over and across adjacent
property held by BEARSON, to the South Platte River and BEARSON agree to grant an
easement in gross for that purpose.
14. ACCESS-County shall access the parcel east from Weld County Road 25 in an area south
of the existing pond. Bearson claims a 20 ' easement along the north 20'of the S '/2 of the
S ''A of the SW 1/4 of sec 18 T2N, R66W of the 6th PM Weld County, Colorado which may
be used by the County but Bearson expressly withholds any warrenty that the easement is
legally available for County use. The County may also utilize the existing Drive South of
the Pond which lies in that portion of Lot 7 of the Lupton Meadows Subdivision lying west of
the South Platte river in § 18, T2N, R65W of the 6th PM, Weld County, Colorado.
15. NOTICE-Notice required to be given under this lease shall be accomplished by mailing,
certified mail return receipt requested, to the following addresses:
COUNTY: Board of County Commissioners
P. 0. Box 758
Greeley, CO 80632
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Bearson Lease-4
Copy by First Class mail to:
Weld County Attorney
915 Tenth Street P. 0. Box 1948
Greeley, Co 80632
BEARSON:
Copy by First Class mail to:
Darrell L. Bearson and Nelva M.Bearson
9208 wcr 25
Ft Lupton CO
80621
Change of address shall be given by mailing of notice of such change.
15. Reservation of Other Minerals to BEARSON This Lease pertains only to the removal of
sand, gravel, and aggregate. All other minerals located on the property are reserved unto
BEARSON
16. Warrenty of Title to Sand , Gravel and Aggregate. BEARSON warrants that they possess an
indefeasible estate in fee simple in and to all interest in the sand, gravel,and aggregate on the
subject property and have good right and full power to lease same. BEARSON shall indemnify
COUNTY and pay all claims and costs of defense for any causes of action arising out of any
third parties' claims to said materials, shall warrant quiet and peaceable possession to the
COUNTY under the terms of this lease, and will defend title thereto against all persons who
may lawfully claim the same. Further, BEARSON state that the property is free and clear from
any encumbrance affecting the right of the COUNTY to remove materials. This lease is
contingent on COUNTY's obtaining satisfactory title insurance at COUNTY's sole expense.
Lessor makes no warranties as to the quality or quantity of sand, gravel, and aggregate at the
property.
17. Waiver of Trespass and Nuisance Claims BEARSON recognizes that the operations
contemplated by the lease may, even when conducted in accordance with regulatory
requirements, cause interference with adjacent land uses. BEARSON hereby waives any tort
including trespass and nuisance claims based upon such interference but, in so doing,
expressly reserve any cause based upon this lease and the right to seek administrative
remedies from the agencies responsible for regulating such operations. Notwithstanding the
preceding, BEARSON do not waive any trespass or nuisance claim based upon the willful and
wanton or grossly negligent acts of the County or its employees.
18. VENUE-Venue for any dispute arising under this lease shall be proper in and for the District
Court in and for the County of Weld, State of Colorado, 19th Judicial District.
19. LEASE BINDING-This lease is intended to be binding on the heirs, personal representatives,
and successors in interest to the parties hereto.
20. CLOSING-Closing shall occur within ten days of final execution of this agreement at a mutually
acceptable time and place.
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Bearson Lease-5
ATTEST: COUNTY OF WELD, STATE OF
COLORADO by and through
the Board of County Commissioners of
W 1d C ht� Board
ithe County of Weld
I bd
IL 1.
C ', _/ ' 'j,i l�`
Y: A
B '..--C,. �,Z BYt ///'�_l 1 _.e��
pep o t e Board _ Constance L. Harbert, Chair
(11/09/98)C, /By: (/4.Zu eat' ..1 -cr-c ovn.
Darrell L. Bearson
BY4G' In, .„,,.e,.. _
Nelva M. Bearson
STATE OF COLORADO )
County of Weld ) ss.
)
The forgoing instrument was acknowledged before me this Q 2 day of Qe� rder- ,
1998, by Farrell L. Bearson and Nelva M. Bearson.
.,.."'r,,‘SST tRi
4. ..-. Withe :my hand and official seal.i \ * ' 1,-.-ge-Ce ta a %//
c< ,o .
Notary Public
`My'commission expires:
/1 - /u ' /s ss
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