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Home My WebLink About20210824.tiff RESOLUTION RE: APPROVE STUCTURE AGREEMENT FOR COMPENSATION FOR DAMAGE TO STRUCTURES WITHIN 200 FEET OF MINING ACTIVITIES AT PIERCE PIT AND AUTHORIZE CHAIR TO SIGN — C&H AGGREGATES, LLC 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 Structure Agreement for Compensation for Damage to Structures within 200 feet of Mining Activities at the Pierce Pit 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 C&H Aggregates, LLC, commencing upon full execution of signatures, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Structure Agreement for the Compensation for Damage to Structures within 200 feet of Mining Activities at the Pierce Pit from 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 C&H Aggregates, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 22nd day of March, A.D., 2021. BOARD OF COUNTY COMMISSIONERS ditic44) WELD COUNTY, COLORADO ATTEST: `� • D%� Steve oreno, hair Weld County Clerk to the Board / mes, Pro- BY Deputy Clerk to the Boar,0.01'.% s. ,, ��L'Aos. Perry L. B co APP VED <�O R �.��%, I ,. f ` 00 : ike Freeman ounty Attorney pa � ,%, i Lori Sairie.'"---"' Date of signature: 3/25/21 CC: P(,J(ER/ct-l/cK) 2021-0824 3/26/21 EG0079 / / �� 8b1 �_ MEMORANDUM ��, ,, 7..1/ r , TO: Esther Gesick, CTB DATE: March 12, 2021 L- G Q N Y _-Y FROM: Clay Kimmi, P.E., Public Works SUBJECT: Pierce Pit Structures Agreement Please place the attached structures agreement on the BOCC agenda for an upcoming 9 am hearing. The structures agreement is being required by the Colorado Division of Mining Reclamation and Safety as part of the Succession of Operator process that we are currently going through. The Succession of Operator form will transfer the current mining permit to C&H Excavating. The Board signed the Succession of Operator form on January 27, 2021. The Tyler number is 2021-0274. The DRMS requested the Structures Agreement after the Succession of Operator form was submitted. The OnBase Contract ID number for this Structure' Agreement is 4561. The Board previously approved the contract to be placed on the agenda via a pass around that was returned on March 10, 2021. I will plan on attending the meeting to answer any questions. 2021-0824 Page 1 of 1 aG001q BOARD OF COUNTY COMMISSIONERS PASS-AROUND REVIEW PASS-AROUND TITLE:Structures Agreement for Pierce Pit DEPARTMENT: Public Works DATE: March 3,2021 PERSON REQUESTING:Curtis Hall,Clay Kimmi Brief description of the problem/Issue: In December 2020, the County sold the old Pierce Gravel Pit to Cliff Simpson. Mr. Simpson intends on using the property in conjunction with the surrounding properties that he owns to create a water storage reservoir after he completes the mining of all the properties. As part of the sale,the gravel permit with the Colorado Division of Reclamation,Mining,and Safety(DRMS)has to be transferred from Weld County to Mr.Simpson. Prior to transferring the mining permit to Mr.Simpson,the DBMS is requiring that Mr.Simpson's company,C&H Aggregates,LLC obtain a structures agreement from the County in order to ensure that mining activities will not damage our roads or culverts. The attached Structures Agreement is the standard agreement that the County uses when the DRMS asks for such an agreement from mine operators. What options exist for the Board?(include consequences,impacts,costs,etc.of options): 1. The Board could opt to sign the County's Structures Agreement which would allow the DRMS to proceed with transferring the mining permit to C&H Aggregates. Transferring the mining permit also make C&H Aggregates responsible for all reclamation activities. 2. The Board could opt to decline signing the County's Structures Agreement. If a Structures Agreement is not signed,the DRMS will not transfer the mining permit to C&H Aggregates. The County will remain as the responsible party for the completion of the reclamation activites. Recommendation: Public Works recommends that the Board sign the Structures Agreement so C&H Aggregates can transfer the mining permit to their name. C&H Aggregates then becomes responsible for all the reclamation activities. Approve Schedule Recommendation Work Session Other/Comments: Perry L.Buck _ Mike Freeman E Scott K.James,Pro-Tem Steve Moreno,Chair Lori Saine { STRUCTURERE AGREEMENT THIS AGREEMENT is made and entered into thi 'day of—hAAGO, 2021, by and between the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, ("County")and C&H Aggregates, LLC, hereinafter referred to as"Operator". WHEREAS, Operator is doing a Succession of Operator for Permit # M-1980-121 from the Colorado Division of Reclamation and Mine Safety(DRMS)for a mining pit generally located on the following property: The northeast corner of the intersection of CR 94 and CR 37 described as a portion of the SW1/4 of Section 07,T8N, R65W,of the Sixth P.M. Also known as: Pierce Gravel Pit (the"Property"),and WHEREAS,Operator's DRMS permit require it to enter into a structure agreement with all owners of structures within 200 feet of the DRMS permit boundary,and WHEREAS,County owns certain structure(s)within 200 feet of the permit boundary,as follows: County Road 94; County Road 37; Culvert CR94/37A;and Culvert CR 37/94A (the"Structure(s)"). NOW,THEREFORE,in consideration of the mutual promises and covenants contained herein,the Parties hereto agree as follows: 1. Exhibits.The following exhibits are incorporated herein: Exhibit A, General Vicinity Map Exhibit B,Slope Study—Not Applicable Exhibit C,Access Permit(Required) Exhibit D, Right-of-Way(ROW)Permit(If Applicable) Exhibit E, Special Transport Permit(If Applicable) Exhibit F, Road Maintenance Agreement(If Applicable) 2. No County Obligation.Operator agrees that County shall have no obligation to comply with the DRMS Permit or otherwise assist,contribute to,or perform any work required by said permit. Nothing herein shall have any bearing on Weld County's issuance or non-issuance of any permit, license,or other authorization. 3. Effective Date.This Agreement shall be effective upon mutual execution by all undersigned Parties and shall be enforceable for as long as the DRMS Permit is active,including through any require period of remediation. 4. Independent Contractor. Operator agrees that it is an independent contractor and that its officers, agents or employees will not become employees of County, nor entitled to any employee benefits from County as a result of the execution of this Agreement.Operator shall be solely responsible for its acts and those of its agents and employees for all acts performed pursuant to this Agreement. Operator, its employees and agents are not entitled to unemployment insurance or workers'compensation benefits through County.Operator shall not have authorization,express or implied, to bind County to any agreement, liability or understanding, except as expressly set forth in this Agreement. 5. Indemnification. Operator shall defend, indemnify and hold harmless County, its officers, agents, and employees,from and against injury, loss damage, liability, suits, actions, or claims of any type or character arising out of any work done in fulfillment of the terms of the DRMS Permit.This paragraph shall survive expiration or termination hereof. It is agreed that the Operator will be responsible for primary loss investigation, defense and judgment costs where this contract of indemnity applies. Operator agrees to waive all rights of subrogation against the County its associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers for losses arising from the work performed by the Operator under the DRMS Permit. 6. Notices. Any notice to be made under this Agreement shall be sent as follows: • personal service by a reputable courier service requiring signature for receipt;or • five(5)days following delivery to the United States Postal Service, postage prepaid addressed to a party at the address set forth in this contract;or • electronic transmission via email at the address set forth below,where a receipt or acknowledgment is required by the sending party;or • transmission via facsimile,at the number set forth below,where a receipt or acknowledgment is required by the sending party. Either party may change its notice address(es)by written notice to the other. Notification Information: Operator: Name: Derek Daniels Position: Vice President Address: 43646 CR 45 Address: Ault, CO 80610 E-mail: Derek@chexcavation.com Phone: (970)590-1688 County: Name: Clay Kimmi Position: Senior Engineer Address: 1111 H Street Address: Greeley,CO 80631 • E-mail: ckimmi@weldgov.com Phone: (970)400-3741 7. Compliance with Law and with this Agreement. Operator shall strictly comply with all applicable federal and state laws, rules and regulations in effect or hereafter established and pertaining to the work to be performed under the DRMS Permit,and shall further comply with this Agreement and its exhibits, including but not limited to,the Slope Study. 8. Entire Agreement/Modifications. This Agreement including the Exhibits attached hereto and incorporated herein, contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiations,representations,and understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement may be changed or supplemented only by a written instrument signed by both parties. 9. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 10. Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act§§24-10-101 et seq.,as applicable now or hereafter amended. 11. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 12. Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 13. Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. In the event of a legal dispute between the parties, Operator agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 14. Attorney's Fees/Legal Costs. In the event of a dispute between County and Operator, concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney fees and/or legal costs incurred by or on its own behalf. 15. Binding Arbitration Prohibited:Weld County does not agree to binding arbitration by any extra-judicial body or person.Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. Acknowledgment. County and Operator acknowledge that each has read this Agreement, understands it and agrees to be bound by its terms.Both parties further agree that this Agreement with the attached Exhibits is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. O RATOR: BY: Li IV et s t Date 3 3 z Name: 'O rc,.k- lift:4 S Title: (p. .4,4-( Rhw^t/ WELD COUN � LD;t ATT - : BOARD OF COUNTY COMMISSIONERS Wel. C•un' Cl- to th- :.ard ossim WELD OUNTY, COLORADO /Of Deputy Cj r to t e Bo.;, �j 3'�e Moreno, Chair _,..�►,�.; MAR 2 2 2021 I EXHIBIT A 1 • 1 WCR 98 I. - N. IN ti tiii. I. I. - - - N. - - - I. ON I. I IIIII - ti MI I= Ell = MI I. - - - EV I. IIII IIII - - NI NM I• I. MI MIN - MilII I. MI MN III - I M e ar st > 1 ° es. I _ r ;ff..:,NG • A'Pi •rt a .,"4.q,eA J"y1ti' "eYt$0S' �� l .' 44. -• FtFy 3 .r`C,' i. L r s, �N.. ,t qr; I "•Y. ,y nt G'^ zx'7�""�� r�ae>o„y, n I � .. •..` \ avb C : ".r &.,� , in r,' oy Y 'C.M1 yet r 1.*• b'^` ai-WO 1 F. inn f'' -S.: A et f 7 1 I t �. .f'� ', �iaJN'ri } YK.W�q.'"rA n,0 X. , !. M h b 1 r Yje Nr fl 1 I r • ,rib ,.. - •„ay,,• a', • • 1 a a I ' • r I . 1 I .. v. 1. xnv.a. x.n. . ._ n ..,. .. • • ...: Y' ` 1 r WCR 96 _I { n p i .. .. Li • • I f '� �� ' I•.. El . . . -... .. '� r• u I t r4 C • I . . • A M . . IN I C) I I ' I 1 1 r -' i •�. I' ,d i �, I WC 9•.v - _ - a. m In a a>. a. la m a� at IS a• a� = an at Ili e — — ,,Jt"r- - S - IS _ an a1 a1 ti — AIM to ti — S MI — >:X 4.1 t. /-- i. . , .., _. Si .r iG,� , - e S.. • e 1/4 / 3 { } . ,,tD "-. • .....,z ',i ._ 1 ,\l-� �lc .• '�''�_' -ra`�` •'r .. walla' ti N ;Kt0 I paerce pity . . at Ma W � E DISCAIMER. The GIS database and data in the product is subject to constant S change and the accuracy and completeness cannot be and is not guaranteed. The designation of lots or parcels or land uses in the ,I:, 4� �f, database does not imply that the lots or parcels were created or '•, -4._$ -1/4y(Y1 ,/, "j.^ Legend that the land uses comply wth applicable State or Local Law • WELD COUNTY MAKES NO WARRANTIES OR GUARANTEES, 1 it t ` ' r :(i \ EITHER EXPRESSED OR IMPLIED AS TO THE COMPLETENESS, �' � a Paved 3 ACCURACY, OR CORRECTNESS OF SUCH PRODUCT, NOR r'f t ACCEPTS ANY LIABILITY ARISING FROM ANY INCORRECT, ;. . Ir C Gravel Feet INCOMPLETE, OR MISLEADING INFORMATION CONTAINED �'; y..::,, ► ' v v THEREIN 4t ssQ i Lim,j Parcels T "A U �! k r.t New Contract Request Entity Information Entity Name � C & H EXCAVATION LLC Contract Name * STRUCTURES AGREEMENT FOR FIERCE PIT Contract Status CTB REVIEW El New Entity? contract ID 4561 Contract Lead CKfMM1 Contract Lead Email CK1mmi0co.weld.co.us Parent Contract ID 4409 Requires Board Approval y ESS j •x Contract Description * STRUCTURES AGREEMENT THAT IS BEING REQUIRED BY THE COLORADO DRMS BEFORE THEY WILL AUTHORIZE A SUCCESSION OF OPERATOR FOR THE PIERCE PIT. Contract Description 2 Contract Type Department AGREEMENT PUBLIC WORKS Amount* Department Email $0.00 Cm - PublicAforksOweldgov.corn Renewable NO Department Head Email CM-PubficWorks- Automatic Renewal DeptHeadCaweidgov.com NO County Attorney aeat GENERAL COUNTY NO ATTORNEY EMAIL ICA County Attorney Email CM- COUNTYATTORNEYOWELDG 0V`.COM If this is a renewal enter previous Contract ID CROMMM Requested ROCC Agenda Due Date Date * 03113012021 03/171,,2021 Will a work session with BOCC be required?* HAD Does Contract require Purchasing Dept- to be included? NO Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in. Ongase Contract Dates Effective Date Review Date Renewal Date 031112/2021 Termination Notice Pori od Committed Delivery Date Expi ralion Date-, 12131/2121 Final Approval BOCC Approved Tyler Ref # 2021-0274 ROCC Signed Date � �a Hello