HomeMy WebLinkAbout20201618.tiffMr. Mike Freeman
Board of County Commissioners
Weld County, Colorado
1555 North 17th Avenue
Greeley, CO 80631
mfreeman@weldgov.com
RE: 2MJUSR19-08-1660 -- Derr Sand and Gravel Mine
Broken Arrow Investments, LLC Co/ Randy Geist, Global Asset Recovery LLC
Dear Commissioner Freeman:
Via Email
This letter is to formally withdraw my opposition to Broken Arrow Investments, LLC's ("BAI")
application to amend Use by Special Review ("USR") Permit No. USR-1660 to allow expansion of
the Derr Sand and Gravel Pit at 590 North Balsam Avenue. I had previously opposed this USR
amendment in oral testimony before the Weld County Board of County Commissioners and in a
written statement that was submitted to Weld County and entered into the record for the USR permit
amendment proceedings. I have resolved my concerns regarding the mine expansion with BAI and
related, parties and now wish to withdraw my previous opposition.
cc: Kim Ogle, Weld County Planning Services (via email)
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2020-1618
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LOLOFF CONSTRUCTION, INC.
BY:
TITLE:
GLOBAL ASSETS RECOVERI', iLC
BY:
T'FI'LE:
AL?" a- 'AA
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S. General Provisions
A. This Agreement shall be construed according to the applicable laws of the State of
Colorado. Proper venue for any action to enforce the terms, or arising from the
breach, of this Agreement is in Weld County; Colorado.
B. Failure of any Party to insist, in any one or more instances, upon the performance
of any of the terms, covenants, or conditions of this Agreement, or to exercise any
of its rights, shall not waive such term, covenant, condition, or right with respect to
future performance.
C. Partial or complete invalidity of any one or more provisions of this Agreement shall
not affect the validity or continuing force and effect of any other provision.
b. This Agreement has been negotiated between and among the Parties, each of whom
had adequate opportunity to consult legal counsel. Therefore, this Agreement shall
not be interpreted against any Party as the "drafter," but shall be construed in a
neutral manner.
E. This Agreement constitutes the entire agreement of the Parties regarding the subject
matter hereof and supersedes all prior negotiations, understandings, conversations,
correspondence, and agreements between the Parties. Unless otherwise set forth
herein, this Agreement may not be modified or amended, except by a writing signed
by all Parties.
F. This Agreement shall be binding on and inure to the benefit of the Parties, their
successors, assigns, heirs, and personal representatives. The Parties agree to
provide notice to each of other assignment of this Agreement.
G. This Agreement may be executed in one or more counterparts, each of which shall
be considered an original but all of which taken together shall constitute one and
the same legal instnnnent.
IN WITNESS WHEREOF, the Parties have caused this instrument to be duly executed on the
date fast written above.
BROKEN ARROW INVESTMENTS, LLC
BY:
TITLE:
8
4. For the Term of this Agreement, except in an emergency that presents an
imminent threat to life or property, Winters/Hoffner and its representatives,
including Bickling, shall first contact Loloff or BAI with any issues or
concerns regarding operations at the Loloff or Derr Pits, including the
Amendment Area, before contacting any Government Authority. The
purpose of this initial contact is to allow Loloff or BAY to address the issues
or concerns before involving others. IfLoloff or BAI fail to respond within
ten (10) days of receiving notice from Wintersaloffner, or Loloff and BAI
fail to diligently pursue the concern raised by Winters/Hoffner, then
Winters/Hoffner may initiate an action in law or equity. Loloff and BAT
designate the following individual as the contact person for purposes of this
provision:
Kelly A. Hodge
kahodge l ®corncast.net
970-566-5090
or if not available, any other representative of the Companies
4. Conditions Precedent
BAI's and Loloff s obligation to perform the tasks identified in Paragraphs 3(A)(1) through
3(A)(3), hereof, to the extent not already required by applicable law, shall commence upon
execution of this Agreement, except that obligations relating to the Amendment Area shall
be triggered by commencement of mining operations therein.
5. No Admissions
By entering this Agreement, no Party makes any admissions as to the possible effects of existing
and planned mining operations on the Winters/Hoffner Wells.
6. Term and Survival of Claims
The Term of this Agreement shall be from its execution until ORMS releases the reclamation
bonds on the Loloff and Derr Pits, including the Amendment Area. Obligations created herein
relating to only one of the pits shall terminate with the release of the reclamation bond for that pit.
Any claims shall survive the termination of this Agreement.
7. Preservation of Future Claims
Nothing in this Agreement shall constitute a waiver by the Parties of any claims, causes of action,
defenses, and any other action, and all such claims, causes of action, and defenses are preserved
by the Parties.
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dewatering activities at Derr Pit. If the SBO does not
resolve the issue. within thirty (30) days from receiving
notice of the dispute by the Parties, then the Parties shall
be free to take such legal actions they deem necessary to
protect their interests.
b. If, after performing the reasonable mitigation efforts described in
3(A)(4)(a)(iii) above, Winters/Hoffner fail to produce a crop yield
on the 80 acres historically irrigated on the Winters/Hof&aer
Property. The Companies shall compensate Winters/Hoffner for
any crop loss or other damages in amount and such otherrelief as
the parties. agree. Ifthere is no resolution within ten (10) days,
Winters/Hoffner inay contact governmental authorities and take
such other action they may choose including any legal and equitable
remedy provided by law. •
c. .BAT shall install a slurry wall liner around the existing Derr Pit. BAT
shall, in accordance with the terms and conditions .of Revision No.
AMO1, install a slurry wall liner around the area to be mined within
the Amendment Area prior .to exposing groundwater within the
Amendment Area. BAT shall continue to have access to the
Winters/Hoffner Wells for purposes of gathering water level data,
which monitoring data shall continue to be collected and reported
monthly until the data shows that the water level is gaining for three
consecutive months, at which point the monitoring data shall be
collected quarterly until such time as the DRMS releases the bond
associated with the Derr Pit mining permit.
B. Winters/Hoffner
On the same day of the execution of this Agreement, Winters/Hoffner,
either directly or through Bickling or another authorized, representative,
shall provide the Weld County Board of County Cbmmissioners'a letter
withdrawing all objections to BAT'S efforts to amend the DSR Permit
Application. The withdrawal letter shall be substantively similar to the draft
letter contained in Exhibit I) to this Agreement.
2. Winters/Hoffner shall fully consent to and support BAT's efforts to gain
governmental approval to expand mining operations into the Amendment
Area.
3. • For the, Term of this Agreement, Winters/Hoffner shall coordinate and
permit BAT representatives access' to the Winters/Hoffner Wells during
reasonable, business hours to perform the, monitoring required under
3(A)(4)(a)(ii) hereof. •. .
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If such access is denied in the future, then BAI shall be
relieved of therequirements of 3(A)(4)(a)(ii)-(iii) and
3(A)(4)(b) of this Agreement Access for monitoring
shall remain in effect unless revoked in writing by
Winters/Haffner to BAI, or a representative of the
Companies.
iii. If the results of the monitoring data referenced in the
preceding paragraph demonstrate that there has been
greater than a two (2) foot drop in the groundwater levels
over the historic average groundwater levels for the.
month in which the level was measured at the
Winters/Hoffner Wells in two consecutive months,
which reduction is proximately caused by dewatering at
the Den Pit,. including the Amendment Area, then BAI
shall, within seven (7) days submit a mitigation plan to
Winters/Hoffner and DE.11/IS. Such mitigation plan is
only required if the two (2) foot drop in groundwater
levels causes a material decrease in the pumping flow
rate of the Winters/Hoffner irrigation well, and such
mitigation plan may include, but is not limited to the
following mitigation efforts: (a) enhanced recharge
operations around the Amendment Area or Derr Pit; (b)
resetting of existing well pumps on the advice and
recommendation of an' agreed upon company with
expertise in such fields; (c) rehabbing the existing well
on the advice and recommendation of an agreed upon
company with expertise in such fields; and (d) provide
sufficient Colorado -Big Thompson or equivalent surface
water for the Winter/Hoffner farm crops at BAI's sole
cost. The two (2) foot drop in static water table that is the
trigger for the obligations of this paragraph shall be
measured against the baseline data collected by BAI
through its third party representative since 2019, If there
is a question as to whether dewatering at Den Pit is the
proximate cause of the reduction in groundwater levels
that require the mitigation plan described in this
paragraph, then BAI and Winters/Hoffner agree to work
together ix) good faith to resolve such question. If they
are unable to resolve such question between themselves
within the next seven (7) days, they agree that the
Colorado State Engineer Office ("SEO") . is the state
agency with expertise in determining such matters and
both BAI and Winters/Hoffner shall seek the
determination of whether the groundwater level declines
in the monitoring wells are proximately caused by the
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b. Loloff shall comply with all applicable dust requirements contained
USR Permit No. AM USR-690, State laws, and local ordinances.
Loloff shall also comply with its Colorado Air Pollution Control
Division permits for the Loloff Pit, which specifically address
particulate emissions (dust) from the pit and associated mining
equipment.
3. Traffic
a. BAI will comply with all applicable traffic requirements contained
in amended USR Permit No. 2MJUSR19-08-1660, State laws, and
local ordinances. BAY will ensure that drivers servicing the Derr Pit
utilize only designated haul routes.
b. Loloff will- comply with all applicable traffic requirements
contained in USR Permit No. AM USR-690, State laws, and local
ordinances. Loloff will ensure that drivers servicing the Loloff Pit
utilize only designated haul routes.
c. No mining equipment or heavy truck and construction traffic shall
exit, enter or access the Amendment Area via Cherry Avenue.
4. Water Wells
a. BAI has submitted .a technical revision to DRMS for the Den Pit,
including the Amendment Area ("Derr Technical Revision"), a copy
of which is attached hereto as Exhibit B. The Derr Technical
Revision shall include, among other items, the following mitigation
items:
i. The Winters/Hoffner Wells (among others) shall be
included as "Permanent Man -Made Structures within
200 Feet of the Affected Land" as that phrase is used
within Permit No. DRMS M-2008017.
ii. BAI, or its selected third -party representative, shall
perform monthly groundwater monitoring at each of the
groundwater wells identified in Exhibit C. The monthly
monitoring data shall be submitted to Winters/Hoffner
and the DRMS on a monthly basis. The groundwater
wells to be included within this monitoring program
specifically include the Winters/Hoffner Wells, and
Winters/Hoffner agree to grant access to BAI, or its
selected third -party representative to the
Winters/Hoffner Wells for purposes of such monitoring.
B. Dust - concerns about dust that will be generated by operations in the Amendment
Area.
C. Traffic - concerns about increased traffic generated by operations in the
Amendment Area and the travel routes of the mine -related vehicles.
D. Water Wells — concerns that the Winters/Roffner Wells will be negatively impacted
by the operations at the Derr Pit, including the Amendment Area_
3. Obligations of the Parties
In an effort to resolve Winters/Hoffner's Concerns regarding BAI's and Loloffs past and
planned mining operations at the Loloff Pit, Derr Pit, and BAI's expansion of operations
into the Amendment Area, the Companies and Wiriters/Hoffner agree to the following
mitigation efforts to address the Concerns:
A. BAT and Loloff
1. Noise
a. BAT shall comply with all applicable noise requirements contained
in amended USR Permit No. 2MJUSR19-08-1660, State laws, and
local ordinances. BAT will further prohibit the use of compression
release braking (Jake Brake) byvehicles servicing the Derr Pit,
including the Amendment Area.
b. Loloff shall comply with all applicable noise requirements
contained in USR Permit No. AM USR-690, State laws, and local
ordinances. Loloff will further prohibit the use of compression
release braking (Jake Brake) by vehicles servicing the Loloff Pit.
c. BAT shall install and maintain a berm around the active mining areas
within the Amendment Area. The berm area shall be planted with
trees and native grasses. The trees shall be irrigated by a drip
irrigation system and the native grasses will be irrigated by a
temporary sprinkler system.
2. Dust
a. BAI shall comply with all applicable dust requirements contained in
amended USR Permit No. 2MJUSR19-08-1660, State laws, and
local ordinances. BAT shall also comply with its Colorado Air
Pollution Control Division permits for the Derr Pit, including the
Amendment Area, which specifically address particulate emissions
(dust) from the pit and associated mining equipment.
3
7. Winters/Hoffner, through its representative Melvin Bickling ("Bickling"), have opposed BM's
USE. Amendment Application through oral testimony, written statements, or both before the
_Weld County Board of County Commissioners, 'and in letters submitted to Weld County
Planning Department staff which have been entered into the record as part of the .USR
Amendment Application.
S. Winters/Hoffner's opposition to the USR Amendment Application is related to, in part,
concerns regarding the potential impacts of dewatering activities within the Derr Pit and
Amendment Area on the Winters/Hoffner Wells.
9. The Companies and W inters/Hoffnerdisagree as to whether and to what extent existing mining
operations at the Loloff Pit and Den Pit have impacted the Winters/Hoffner Wells, and
disagree further as to whether and to what extent future mining in the Amendment Area will
impact the Winters/Hoffner Wells.
10. In an effort to resolve that disagreement, as well as address all other remaining concerns of
Winters/Hoffner related to operation of the Loloff Pit, Derr Pit; and the Amendment Area, and
allow BAI to obtain approval of the USE Amendment Application, as well as address
Winters/Hoffner's objections to Weld County regarding the USR Amendment Application, the
Companies and Winters/Hoffner desire to enter into this Settlement Agreement.
THEREFORE, in consideration of the mutual promises and obligations stated herein, and the
mutual benefits to be. derived therefrom, the Companies and Winters/Hoffner agree as follows:
COVENANTS AND CONDITIONS
1. Purpose of Agreement .
The purpose of this Agreement is to address Winters/Hoffner's concerns related to BAP s
and Loloff's existing and planned mining operations at the Loloff Pit and the Derr Pit and
Amendment Area, such that Winters/Hoffner, either directly or through Bickling, formally
withdraw their opposition to BAI's efforts to get approval of the USR Amendment
Application.
2. Identification of Concerns
Winters/Hoffner identify the following concerns ("Concerns") as the basis for their
objection to USR Amendment Application, some of 'which relate to existing operations at
the Den Pit and Loloff Pit.
A. Noise - concerns about noise that will be generated by operations in the Amendment
Area.
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Agreement") is made this Ah44day of friAl
2020 by and between Broken Arrow Investments, LLC ("BAI"), whose address is 801 8th Street,
Suite 130, Greeley, Colorado 80631; Loloff Construction, Inc. ("Loloff'), whose address is 801
8th Street, Suite 130, Greeley, Colorado 80631; Global Asset Recovery, LLC ("GAR"), whose
address is 6530 Constitution Dr., Fort Wayne, Indiana 46804, collectively the "Companies," and
Jerry Winters and Dixie Ann Heffner (who shall jointly be referred to as "Winters/Hoffner"). The
Companies and Winters/Hoffner shall be jointly referred to as the "Parties" in this Agreement..
BAI, Loloff, and GAR shall be deemed one entity for purposes of this Agreement andeach shall
be responsible for its own obligations and liabilities, and also obligated and liable for each other's
entity's obligations and liability that are included as "Companies".
RECITALS
1. The Companies have common, though not identical, interest in the matters addressed by this
Agreement.
2. Loloff owns and operates the Loloff Sand and Gravel Pit ("Loloff Pit") located directly across
North Balsam Avenue from the Derr Pit, which is described in the following recital. Loloff
operates the Loloff Pit as an active sand and gravel mine under Permit No. DRMS 1-1985-
112, issued by the Colorado Division of Reclamation, Mining, and Safety ("DRMS"). A slurry
wall liner was installed around the Loloff Pit in 2017.
3.. GAR owns the Derr Sand and Gravel Pit ("Derr Pit") located at 590 North Balsam Avenue in
Weld County, Colorado. BAI operates the Derr Pit as an active sand and gravel mine under
Permit No. DRMS M-2008-017.
4. DRMS amended Permit No. DRMS M-2008-017 for the Derr Pit on June 27, 2018 ("Revision
No. AM01") to allow BAI to expand mining into an area north and west of the existing Derr
Pit boundary, as shown in Exhibit A ("Amendment Area").
5. BAI also requires Weld County approval to expand mining operations into the Amendment
Area. As part of this approval, Weld County granted a zoning change on September 11, 2019
for the Amendment Area, which BAI recorded on December 4, 2019. BAI is in the process of
amending. the Weld County Use by Special Review Permit, 2MJUSR19-08-1660 ("USR
Amendment Application"), as the final authorization necessary to begin mining the
Amendment Area.
6. Winters/Hoffner owns Parcel No. 096103000044 at 21138 County Road 62 and Parcel No.
080334000019 ("Winters Hoffner. Property"), which lies east and north of the Amendment
Area, on which property is situated two groundwater wells permitted for irrigation use, and
represented by Well Permit Nos. 13200-F and 13199-R, collectively the "Winters/Hoffner
Wells."
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