HomeMy WebLinkAbout20153367.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: Peters Pit Gravel Lease Amendment
DEPARTMENT: Public Works
PERSON REQUESTING: Devin Traff, Clay Kimmi
DATE: July 13, 2018
Brief description of the problem/issue:
The County has mined soil and gravel resources for road construction and maintenance through a lease
agreement with John Peters since October 2015 (see 2015 Agreement attached). In order to continue providing
County produced gravel and construction materials to the Operations Division, Public Works needs to expand
the Peters Pit boundary per Exhibits C and D of the attached amendment. The additional mining area contains
approximately 70.5 acres with sand and gravel resources suitable for use in County projects. The County will
pay our standard royalty rate of $0.75 per ton of material removed from the area in accordance with the original
agreement. All terms and provisions of the original agreement shall remain the same except the mining area
expansion as shown in the amendment.
If the first amendment to the 2015 agreement is approved, Public Works will begin the process of permitting the
new area with the Division of Mining, Safety, and Reclamation and the Weld County Planning Department. It
is expected that mining the new area would begin within 9 months of signing the first amendment to the
agreement.
What options exist for the Board? (include consequences, impacts, costs, etc. of options):
1. Accept and sign the First Amendment to the 2015 Agreement.
2. Do not accept and sign the First Amendment to the 2015 Agreement.
Recommendation:
Public Works recommends approval from the Board of County Commissioners.
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro-Tem
Steve Moreno, Chair
Approve
Recommendation
Schedule
Work Session
Other/Comments:
6,071,60,4-0(e0
/.5---336.7
as 7v2-
FIRST AMENDMENT TO
RIGHT TO ENTER AGREEMENT
TO OBTAIN SOIL AND/OR GRAVEL
FOR ROAD PURPOSES
THIS FIRST AMENDMENT TO RIGHT TO ENTER AGREEMENT TO OBTAIN SOIL
AND Off, GRA L FOR ROAD PURPOSES (this "First Amendment") is made and entered into
this 7! Cay of 2018, by, and between the Board of County Commissioners of the County
of Weld, State of C rado, 1150 "O" Street, Greeley, Colorado 80631, (hereinafter referred to as
"County"), and John Peters, P.O. Box 37, Hereford, CO 80732, (hereinafter referred to as
"Owner")
WITNESSETH:
WHEREAS, the County and the Owner entered into a RIGHT TO ENTER AGREEMENT
TO OBTAIN SOIL AND/OR GRAVEL FOR ROAD PURPOSES dated October 19, 2015 under
document number 2015-3367 of the Weld County, Colorado records (the "Right of Entry
Agreement").
WHEREAS, the parties hereto desire to amend and modify certain terms and provisions of
the Right of Entry Agreement to permit County to enter onto an additional portion of Owner's
Property (hereinafter referred to as the "Amendment Area") for the purpose of extracting
soil/gravel, the additional land is described by the legal description in Exhibit C.
WHEREAS, the original agreement was between John Peters in his individual capacity,
and as owner of the land described in the Right to Entry Agreement. This First Amendment is
between John Peters as the Owner of the Peters 313 Ranch, but both John Peters as an individual
and John Peters as the Owner of Peters 313 Ranch agree to this First Amendment,
WHEREAS, Owner, operating under "Peters 313 Ranch, Inc.", is in possession of certain
property located in:
NW Quarter of Section 35, Township 12 North, Range 63 West of the 6th P.M.,
(hereinafter referred to as "Owner's Property")
WHEREAS, County intends to engage in one or more road improvements project(s) within
Weld County, (hereinafter referred to as the "Project") and is in need of sand, soil, and/or gravel
in order to complete said Project, and
WHEREAS, Owner's Property contains sand, soil and/or gravel which County deems
appropriate for use in the Project and which Owner desires to sell to County, and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration, the receipt and adequacy of which are hereby
confessed and acknowledged, the parties agree to amend and modify the Right of Entry Agreement
as follows:
Page 1 of 3
oho%� 3 6/7
1. The foregoing recitals and conditions of the Right of Entry Agreement dated October
19, 2015 are hereby incorporated as if fully restated in this First Amendment to the
Right of Entry Agreement.
2. The Exhibits attached to this First Amendment are hereby attached to and made a part
of the Right of Entry Agreement.
3. Except as expressly amended or modified herein all terms and provisions of the Right
of Entry Agreement shall remain the same. In the event of any conflict between the
terms and provisions of this First Amendment and the terms and provisions of the Right
of Entry Agreement, the terms and provisions of this First Amendment shall control
and supersede over the terms and provisions of the Right of Entry Agreement.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as of the day
and year first above written.
PROPERTY OWNER:
Peters 313 Ranch, Inc.
a Colorado corporation
Owner Signature: _
Printed Name: John
rs, Owner
WELD CO C�
ATTEST: �p '� BOARD OF COUNTY COMMISSIONERS
Weld C . my Clerk to the Board WELD COUNTY, COLORADO
BY:
•
Deputy C ! rk to the ti Steve Moreno, Chair AUG 0 6 2018
1
Page 2 of 3
O2O/5 33 6.7
EXHIBIT C
LEGAL PROPERTY DESCRIPTION
OF AMENDMENT AREA
Approximately 70 5 acres, located in the northwest quarter of Section 35, Township 12 North,
Range 63 West, of the 6th P M , Weld County, Colorado
The Amendment Area is the area within the boundary described as follows
Beginning at a point which is located N01°03'21 96"E 125 92 feet from the northwest corner of
Section 35, Township 12 North, Range 63 West, of the 6th P M , Weld County, Colorado,
commence N01°03'27 36"E 2,481 10 feet, thence S90°00'00 00"E 2,639 34 feet, thence
N46°15'54 00"W 2059 19 feet, thence N67°17'08 16"E 364 18 feet, thence N49°16'15 60"W
506 88 feet, thence S56°37'19 92"W 265 08 feet, thence N16°23'22 20"W 161 51 feet, thence
N44°45'21 24"W 797 37 feet to the point of beginning
EXHIBIT D:
JUNE 2018
PETERS 313 PIT FIRST AMENDMENT
S34 112N R63VV
Legend
1 _ Access Road
Original Agreement Area
Amendment Area
rul Section Boundary
Parcel Boundary
I I
I
COMPANY
b ► 12N
DISCLAIMER: The GIS database and data in the product is
subject to constant charge and the accuracy and
completeness cannot be and is not guaranteed The designation of
lots or parcels or land uses in the database does not imply that the
lots or parcels were created or that the land uses comply with
applicable State or Local Law WELD COUNTY MAKES NO
WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR
IMPLIED AS TO THE COMPLETENESS, ACCURACY, OR
CORRECTNESS OF SUCH PRODUCT, NOR ACCEPTS ANY
LIABILITY ARISING FROM ANY INCORRECT, INCOMPLETE, OR
MISLEADING INFORMATION CONTAINED THEREIN
500 1, 000
Feet
2,000
RESOLUTION
RE APPROVE AGREEMENT FOR RIGHT TO ENTER TO OBTAIN SOIL AND/OR GRAVEL
FOR ROAD PURPOSES AND AUTHORIZE CHAIR TO SIGN - JOHN PETERS
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 an Agreement for the Right to Enter to
Obtain Soil and/or Gravel for Road Purposes 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 John Peters, P O Box 37 Hereford, Colorado 80732, with 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 Agreement for Right to Enter to Obtain Soil and/or Gravel for Road
Purposes 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 John Peters
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 19th day of October, A D , 2015
BOARD OF COUNTY COMMISSIONERS
ATTEST ei"eit
Weld County Clerk to the Board
BY
y Clerk to e Boar
APPROVED AS TO FORM
County Attorney
Date of signature I (/`t
`f
CC` 'l
WELD COUNTY, COORADOJR /
rbara eyer, Chailli-
Mike Freeman, Pro -Tern
2015-3367
EG0072
i
`",r-.g".1'i_ e-'..:r"uo�>�t2�a,a^<<sa�:7..:Q iY���u�rn xz�."'1?'�nr'E�-°*£,'*^+Y�'f,�r_,.ti,,:,!^.":Fat^
9r
FIMORAN UM
TO Clerk to the Board
DATE , October 13, 2015
, FROM Jay McDonald, Director, Public Works Department
SUBJECT Agenda Item
Right to Entet Agieement to Obtain Soil/Or Gravel for Roads Purposes with John L Peters
- Enclosures
\1 \FranctelAOENDA memos Agcnda la) doc
n
RECEIVED
OCT 1 4 2015
WELD COUNTY
COMMISSIONERS
2015-3367
t
.o...aL:Jh`$��b "a. t w.eu.2'n��C...'L Wt`.Avi_ }4w w��iL'°awJ �Ae M�ui �dl`tC.�^Wh.t/k3�!^u k`LTA''i N.2ialeid ..66, d. wialv2'.1,4 ,tae Srvt,6-ao. X11
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/ WORK SESSION REQUEST
RE Surface Mine Lease
DEPARTMENT Public Works
PERSON REQUESTING L Jav McDonald
DATE 10/5/15
Brief description of the problem/issue: We leased land and operated a surface mine from Mr. John Peters
West of Herford for many years. When the mining operations ended we approached Mr Peters about
leasing another site on his property He has agreed to lease approximately 80 acres for mining
operations. The lease will be for initial five —1 year periods, and additional 1 year periods after that until
operations are complete or either party wishes to tei minate the agreement. We will pay Mr Peters 75
cents per ton for all material removed from the leased area. This is consistent with what we have paid
property owners for many years. The royalty amount can be renegotiated after the initial 5 year period.
This site is in the same deposit in which the previous site was but down stream along the ancient river
bed. We have produced very good surface gravel from this deposit.
What options exist for the Board?
I Approve the lease agreement
2 Do not approve the lease agreement
Recommendation: We have need of a mining site in this area of the County and Mr. Peters has been very
good to work with as a property owner. We anticipate many years of production from this site and we
recommend approval of the lease agreement.
Barbara Ktrkmeyer, Chair
Mike Freeman, Pro-Tem
Sean P Conway
Julie Cozad
Steve Moreno
Approve
Recommendation
rAr
M 1 Admmistration\Corms\WorkSession-passaround dot.
Schedule
Work Session Other/Comments
Ys:...r" =.,zE .,',:.t'°'lt . itl- yr
RIGHT TO ENTER AGREEMENT
TO OBTAIN SOIL, AND/OR GRAVEL
FOR ROAD PURPOSES
/THIS AGREEMENT is made and entered into this ,7 day of ( ,t' S 2015, by, and
between the Board of County Commissioners of the County of Weld, State of Colorado, 1150 "O"
Street, Greeley, Colorado 80631, (hereinafter referred to as "County"), and John L Peters, P O
Box 37, Hereford, CO 80732, (hereinafter referred to as "Owner")
WITNESSETH
WHEREAS, Owner is in possession of certain property located in
SW Quarter of Section 26, Township 12 North, Range 63 West of the 6`h P M ,
(hereinafter referred to as "Owner's Property"), and
WHEREAS, County intends to engage in one or more road improvements project(s) within
Weld County, (hereinafter referred to as the `Project") and is in need of sand, soil, and/or gravel
in order to complete said Project, and
WHEREAS, Owner's Property contains sand, soil and/or gravel which County deems
appropriate for use in the Project and which Owner desires to sell to County, and
WHEREAS, Owner and County desire to enter into a Lease Agreement to permit County
to enter onto a designated portion of Owner's Property (hereinafter referred to as the "Leased
Area") for the purpose of extracting soil/gravel
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, County and Owner agree as follows
1. Property Description: Owner's Property, which is subiect to the terms of this
Agreement, is the real property described and shown in attached. Exhibit "A." which
consists of a legal description and maps The Leased Area to be mined for gravel is
depicted in the attached Exhibit `B" by a diagram (Exhibits A and B are attached
hereto and made a part hereof by this reference
2. Term off Agreement: The Term of this Agreement shall begin on the date of
approval of the Section 1 12c Permit from the Colorado Division of Reclamation,
Mining and Safety (hereinafter "DRMS") for the mining of Owner's Property, and
shall continue until and through the date of final release of the permit by DRMS,
except that this Agreement shall be enforceable upon execution Each party agrees to
a lease period of five, 1 -year periods After the initial 5 -year lease penod, Owner will
have the option of extending the lease with additional 1 -year periods to be added
automatically until mining is complete If the Owner does not wish to extend the
lease, Weld County will commence with reclamation activities Should the Owner
want to keep the pit open but not lease it to Weld County, the County will transfer the
Page 1 of S
,r+ia,tr.womm annnsxt�s sw IMI i,ruoW 4,1M748%,,, xneF2 aam-mave acWsrwua:a, su4run vP�.-m.Rinr ^zr +vc m r -A+* RWIAlxe M,n- TA,S AIR:,. AW0r cs 53`1 eie's aax., sea. 4m101 -,R
permit to the Owner Owner will be responsible for posting the reclamation bonds
required by DRIES The parties specifically acknowledge that a temporary or
permanent cessation of mining activities does not terminate the Agreement, the
Agreement extends to the DRMS release of the permit
3. Royalty Payments: During the first five 1 -year periods, County shall pay to Owner a
royalty of seventy-five cents ($0 75) per ton for all soil/gravel material removed from
the Leased Area described in Paragraph 1 above Said royalty payment shall be made
on or before the last day of the month following the month after which the soil, sand
and/or gravel is removed After the first five, 1 -year periods and every five, 1 -year
periods after that, Owner may renegotiate the royalty amount with County Owner
shall provide 30 days written notice to County that he would like to renegotiate the
royalty payment rate
4. Owner's Obligations: Owner agrees to the following terms and conditions
a Owner grants to County the exclusive right to enter access and/or use the Leased
Area throughout the Term of this Agreement for all purposes related to the removal,
processing and crushing of soil, sand and/or gravel and to conduct reclamation
activities following the cessation of mining activities
b Owner grants to County the right to bring equipment onto the Leased Area which
is deemed necessary by County to remove the soil, sand and/or gravel and to crush
said gravel as required by County for its Project(s), and also to complete its
reclamation activities after mining activities have ceased
c Owner shall provide land for a haul route from a public road directly to the Leased
Area The haul route is depicted on Exhibit B and has been accepted by both
parties
d Owner shall not engage in any activity on or related to the Leased Area throughout
the Term of the Agreement which interferes with County's mining activities, with
its efforts to secure a mining permit, or with its efforts to reclaim the property
following the cessation of mining activities without the express written consent of
County
e Owner shall cooperate with County in its efforts to secure all required mining
permits, and agrees to execute any documents required to be executed by the Owner
of the mined property in relation to said permits Any expenses associated with the
permitting process shall be paid by County
f Owner shall provide his social security number or tax identification number to the
Weld County Controller, and County will annually issue to Owner an IRS tax form
1099 to report the royalties paid and/or taken in kind pursuant to the terms of this
Agreement
5. County's Obligations: County agrees to the following terms and conditions
a County shall construct and maintain the haul route described in Paragraph 4 c
above, in good condition, and shall remove said haul route and restore it to its
original condition upon the termination of this Agreement if requested to do so by
Owner
b County shall maintain accurate records of all soil, sand and/or gravel removed from
the property described in Paragraph I above, and shall make said records available
Page 2 of 5
u`L E'S. FBaNliNfr, V 7,O5.4, 1ZANUhlatrALA.,T OVI.-,T=7]II+%eMrtWr Pl'W'llAIL.M", TTMS-4.T.rat.A.a1,V..712.1ArrellIAM.d5.M-4.4"$5n d';r+Si/Ti:L1 u�uw'SS�'af3Pa75'u' r�'Li ti,...:,tbRA41'.1+v. 1 , l.i'¢R.+'4T.6G;�2'aTi�d�W'.: 1ha^vLLPJ
to Owner for inspection in its offices located at 1111 H Street, Greeley, Colorado,
during normal business hours, Monday through Friday, except dunng holidays
recognized by Weld County Each royalty payment made to Owner shall be
accompanied by a statement of the amount of gravel mined by County since the
close of the previous mining period for which the previous royalty payment was
made
c County shall be responsible for obtaining all necessary State, County and Federal
permits, which shall not include permits for asphalt and/or concrete batch plants
County shall pay the entire cost of necessary surveying for the mining operation
County shall consult with Owner during the permitting process and shall exercise
due diligence in obtaining all required permits in a timely fashion County shall
conduct the mining and extraction activities in compliance with the terms of each
permit, specifically including the permit issued by the Colorado Division of
Reclamation, Mining and Safety
d County shall be responsible for the construction and maintenance of any
improvements required by the terms of the permit Following cessation of its
mining activities, County shall remove the improvements, unless Owner requests
that such improvements remain If County constructs a temporary entrance/exit on
the leased area, said temporary entrance/exit may be left intact for Owner's use only
if an access permit can be issued to Owner consistent with Weld County policy
concerning such permits
e County shall notify Owner thirty (30) days prior to the commencement of mining
activities
f County shall notify Owner thirty (30) days prior to the cessation of mining
activities The term of this Agreement, however, will extend to the date of the
release of the permit by the Colorado Division of Reclamation, Mining and Safety
6. Notices: All notices of Termination or other demands by Owner or by County shall be
made in writing and sent by Certified Mail, Return Receipt, or by E-mail, with a
Confirmation of Receipt, as follows
OWNER John L Peters
ADDRESS P O Box 37,
Hereford, CO 80732
COUNTY Jay McDonald, Director of Public Works
ADDRESS P O Box 758
Greeley, Colorado 80632
EMAIL imcdonald@co weld co us
7. Non -Assignment: This Agreement shall not be assigned by either party without the
express written consent of the other party Such consent shall not be unreasonably
withheld
Page 3 of S
,re.s,�.a wra».�. r, m..- r—;i�rae �..T•u xwsQ+^a r time • 0, ^5 --'C.aF'-47.YV7k.., "inaa'atL.,t7e'. rG+Z' ^Z.,,V1-1,...,` t _F� c �� :rf» , ,'.•u : '3�C^' * t....""ait11
8. Recitals. Each of the Recitals set forth in the introduction of this Agreement forms a
part of this Agreement and is expressly incorporated into this Agreement of the parties
9 Approval by the Board of County Commissioners of Weld County: This
Agreement shall not be valid until it has been first approved by the Board of County
Commissioners of Weld County, Colorado or its designee
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 Enforcement: 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. Entire Agreement/Modifications: This Agreement contains the entire agreement
between the parties hereto and supersedes any other agreements concerning the subject
matter addressed in this Agreement No modifications, amendments, notations,
renewals or other alteration of or to this Agreement shall be deemed valid or of any
force or effect whatsoever, unless mutually agreed upon in writing by the parties to this
Agreement This Agreement may be changed or supplemented only by a written
instrument signed by both parties
13. Acceptance not Waiver: No breach of any term, provision or clause of this Agreement
shall be deemed waived or excused, unless a waiver or consent shall be made in writing
and signed by the party claimed to have waived or consented to the breach Any consent
by any party hereto, or waiver of a breach by the other party, whether express or
implied, shall not constitute a consent to, waiver of, or excuse for any other different
or subsequent breach
14. Interruptions: Neither party to this Agreement shall be liable to the other for delays
in delivery or failure to deliver or otherwise to perform any obligation under this
Agreement, where such failure is due to any cause beyond its reasonable control,
including, but not limited to Acts of God, fires, strikes, war, flood, earthquakes or
Governmental actions
15. No Conflict. During the term of this Agreement, no employee of Owner nor any
member of Owner's family shall serve on a County Board, committee or hold any such
position which either by rule, practice or action nominates, recommends, or supervises
County's activities of Owner's property
16. Severability If any term or condition of this Agreement shall be held to be invalid,
Page 4 of 5
illegal, or unenforceable, 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
17. Attorney's Fees/Legal Costs: In the event of a dispute between County and Owner
concerning this Agreement, the parties agree that County shall not be liable to or
responsible for the payment of attorney fees and/or legal costs incurred by or on behalf
of Owner
18. Fund Availability: Financial obligations of County, payable after the current fiscal
year, are contingent upon funds for that purpose being appropriated, budgeted and
otherwise made available By execution of this Agreement, County does not warrant
that funds will be available to fund this Agreement beyond the current fiscal year No
portion of this Agreement shall be deemed to create an obligation on the part of County
to expend funds not otherwise appropriated or budgeted for County will not engage in
mining and/or crushing activities unless funds for such activities have been
appropriated, budgeted or otherwise been made available for such activities
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first
stated above
Owner Signature
Printed Name John ers
WELD COUNTY
ATTEST �,, BOARD OF COUNTY COMMISSIONERS
Weld Coun efthe : o rtf'°" WELD COUNTY, COLORADO
(2,
Date
BY
Deputy C k to the B. �� : arbara K.irkmey - r, Chair
APPROVED AS TO FUN
'Oada.t
Controller
APPROVED AS TO FORM
PS evtta.f..i.,
County Attorney
CT 1 9 2015
APPROVED AS STANCE
Ele Yd O icial or Department Head
Director of General Services
c2b/',7
Page 5 of 5
� za�.m ass + s3 -a Wt twird2 s a ranz u:anaax4+zexa sr cab .• � �a asm etr My me cr s � �rw a „ €u�zrv;r� er�aaa2AWD.A1saaau?e.±s4_c�.t,aas nt r^ t ,I v x y
Exhibit A
Legal Property Description
Approximately 80 acres, located in the South half of the Southwest quarter (S 1/2 of SW '/a), of
Township 12 North, Range 63 West, of the 6th P M, Weld County, Colorado
A 24 foot wide access road, located outside of the 50 ft pipeline easement, extending from CR
136 5 south to the northern boundary of the described mining permit area as follows
Beginning at a point which is located 2464 feet north of the Southwest corner of Section 26,
Township 12 North, Range 63 West, of the 6th P M and commencing thence S00°37' 14"W a
distance of 1124 feet
S26 T12N R63W
++A a_ v. 1 ''.r ✓ a ,r Y o i Y ` {'' T t rr. s ! � I ^ s
4 �yM1` "?'i �'il (1 .1, r I s"
^t'` ��+ ',, v ` _ K , ~ +P - P ;' Ire Lrv" ' l 1 r - �( -
}� .,.. .
' NEOK Pipeline 50 ft Easement , ,r IJ
y
Legend
Proposed Access Road
Roads
Easements
Proposed Lease Area
Owner's Property
Sections
August 2015
l
I
r f
ll
2607 ft
Exhibit B
Peters 313 Pit Lease Agreement
[rsCtwNER
TI,.6 s d}nSasa and data .d mrm. H. 44 subject to earmer.i'
undo and the atare-y rrd CJVMMtnaei IIIll ve addl... not
pu+anteed The du.. A1a^vr Jo! 1ea, ya,ek t. teMii+ I''0,1'
database dso ',firm,* dot the Irk b pr5,70. Mrs ...told or
mar trta lard 6+e+ lordly, ti app@aIIR 91dr y 6.7el'4.10
OSLO LOUPTY ',SAKES NO LW RRA7Jt1F 1C1 G',,�tTT../yirEES
EIThEI EXPRESSED OR 1)11 15.7 A8 6.5t r ¢,K,I4tTF7JESS'
AZGl1R..Gt OR CORRECONEE8 OF tri P07OUCT NOR
AC' FP1T;-JNI "'9tU'y1'ARISSyG KrOPi1Ec-r
Ik4OL11LETF OR 4ts,F1,OI to lrlF >,Ta 4rOrsp14E0
ThERL t r , r' " i -F ,
RESOLUTION
RE: APPROVE AGREEMENT FOR RIGHT TO ENTER TO OBTAIN SOIL AND/OR GRAVEL
FOR ROAD PURPOSES AND AUTHORIZE CHAIR TO SIGN - JOHN PETERS
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 an Agreement for the Right to Enter to
Obtain Soil and/or Gravel for Road Purposes 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 John Peters, P.O. Box 37 Hereford, Colorado 80732, with 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 Agreement for Right to Enter to Obtain Soil and/or Gravel for Road
Purposes 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 John Peters
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 19th day of October, A.D., 2015.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COILORADO
ATTEST: �• jC0;41
Weld County Clerk to the Board
City Clerk to e Boar
APPROVED AS TO FORM:
County Attorney
Date of signature:
bara Kirkmeye , Chair
ikut"--
rr
Mike Freeman, Pro -Tern
CC :`J "/I2-
2015-3367
EO0072
MEMORANDUM
TO: Clerk to the Board DATE: October 13, 2015
FROM: Jay McDonald, Director, Public Works Department
SUBJECT: Agenda Item
Right to Enter Agreement to Obtain Soil/Or Gravel for Roads Purposes with John L. Peters.
Enclosures
RECEIVED
OCT 1 4 20"t5
WELD COUNTY
COMMISSIONERS
M:\Francie\AGENDA memos\Agenda-Jay.doc
2015-3367
EG 00'
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/ WORK SESSION REQUEST
RE: Surface Mine Lease
DEPARTMENT: Public Works
PERSON REQUESTING: L Jay McDonald
DATE: 10/5/15
Brief description of the problem/issue: We leased land and operated a surface mine from Mr. John Peters
West of Herford for many years. When the mining operations ended we approached Mr. Peters about
leasing another site on his property. He has agreed to lease approximately 80 acres for mining
operations. The lease will be for initial five —1 year periods, and additional 1 year periods after that until
operations are complete or either party wishes to terminate the agreement. We will pay Mr. Peters 75
cents per ton for all material removed from the leased area. This is consistent with what we have paid
property owners for many years. The royalty amount can be renegotiated after the initial 5 year period.
This site is in the same deposit in which the previous site was but down stream along the ancient river
bed. We have produced very good surface gravel from this deposit.
What options exist for the Board?
1. Approve the lease agreement
2. Do not approve the lease agreement
Recommendation: We have need of a mining site in this area of the County and Mr. Peters has been very
good to work with as a property owner. We anticipate many years of production from this site and we
recommend approval of the lease agreement.
Barbara Kirkmeyer, Chair
Mike Freeman, Pro -Tern
Sean P. Conway
Julie Cozad
Steve Moreno
M:\' Administration\Forms\Worksession-passaround.doc
Approve
Recommendation
rAr
Schedule
Work Session
Other/Comments:
RIGHT TO ENTER AGREEMENT
TO OBTAIN SOIL AND/OR GRAVEL
FOR ROAD PURPOSES
/‘
THIS AGREEMENT is made and entered into this /7 day of ati 2015, by, and
between the Board of County Commissioners of the County of Weld, State of Colorado, 1150 "O"
Street, Greeley, Colorado 80631, (hereinafter referred to as "County"), and John L. Peters, P.O.
Box 37, Hereford, CO 80732, (hereinafter referred to as "Owner")
WITNESSETH:
WHEREAS, Owner is in possession of certain property located in:
SW Quarter of Section 26, Township 12 North, Range 63 West of the 6th P.M.,
(hereinafter referred to as "Owner's Property"), and
WHEREAS, County intends to engage in one or more road improvements project(s) within
Weld County, (hereinafter referred to as the "Project") and is in need of sand, soil, and/or gravel
in order to complete said Project, and
WHEREAS, Owner's Property contains sand, soil and/or gravel which County deems
appropriate for use in the Project and which Owner desires to sell to County, and
WHEREAS, Owner and County desire to enter into a Lease Agreement to permit County
to enter onto a designated portion of Owner's Property (hereinafter referred to as the "Leased
Area") for the purpose of extracting soil/gravel.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, County and Owner agree as follows:
1. Property Description: Owner's Property, which is subject to the terms of this
Agreement, is the real property described and shown in attached, Exhibit "A," which
consists of a legal description and maps. The Leased Area to be mined for gravel is
depicted in the attached Exhibit "B" by a diagram. (Exhibits A and B are attached
hereto and made a part hereof by this reference.
2. Term of Agreement: The Term of this Agreement shall begin on the date of
approval of the Section 112c Permit from the Colorado Division of Reclamation,
Mining and Safety (hereinafter "DRMS") for the mining of Owner's Property, and
shall continue until and through the date of final release of the permit by DRMS,
except that this Agreement shall be enforceable upon execution. Each party agrees to
a lease period of five, 1 -year periods. After the initial 5 -year lease period, Owner will
have the option of extending the lease with additional 1 -year periods to be added
automatically until mining is complete. If the Owner does not wish to extend the
lease, Weld County will commence with reclamation activities. Should the Owner
want to keep the pit open but not lease it to Weld County, the County will transfer the
Page 1 of 5
permit to the Owner. Owner will be responsible for posting the reclamation bonds
required by DRMS. The parties specifically acknowledge that a temporary or
permanent cessation of mining activities does not terminate the Agreement; the
Agreement extends to the DRMS release of the permit.
3. Royalty Payments: During the first five 1 -year periods, County shall pay to Owner a
royalty of seventy-five cents ($0.75) per ton for all soil/gravel material removed from
the Leased Area described in Paragraph 1 above. Said royalty payment shall be made
on or before the last day of the month following the month after which the soil, sand
and/or gravel is removed. After the first five, 1 -year periods and every five, 1 -year
periods after that, Owner may renegotiate the royalty amount with County. Owner
shall provide 30 days written notice to County that he would like to renegotiate the
royalty payment rate.
4. Owner's Obligations: Owner agrees to the following terms and conditions:
a. Owner grants to County the exclusive right to enter access and/or use the Leased
Area throughout the Term of this Agreement for all purposes related to the removal,
processing and crushing of soil, sand and/or gravel and to conduct reclamation
activities following the cessation of mining activities.
b. Owner grants to County the right to bring equipment onto the Leased Area which
is deemed necessary by County to remove the soil, sand and/or gravel and to crush
said gravel as required by County for its Project(s), and also to complete its
reclamation activities after mining activities have ceased.
c. Owner shall provide land for a haul route from a public road directly to the Leased
Area. The haul route is depicted on Exhibit B and has been accepted by both
parties.
d. Owner shall not engage in any activity on or related to the Leased Area throughout
the Term of the Agreement which interferes with County's mining activities, with
its efforts to secure a mining permit, or with its efforts to reclaim the property
following the cessation of mining activities without the express written consent of
County.
e. Owner shall cooperate with County in its efforts to secure all required mining
permits, and agrees to execute any documents required to be executed by the Owner
of the mined property in relation to said permits. Any expenses associated with the
permitting process shall be paid by County.
f. Owner shall provide his social security number or tax identification number to the
Weld County Controller, and County will annually issue to Owner an IRS tax form
1099 to report the royalties paid and/or taken in kind pursuant to the terms of this
Agreement.
5. County's Obligations: County agrees to the following terms and conditions:
a. County shall construct and maintain the haul route described in Paragraph 4.c.
above, in good condition, and shall remove said haul route and restore it to its
original condition upon the termination of this Agreement if requested to do so by
Owner.
b. County shall maintain accurate records of all soil, sand and/or gravel removed from
the property described in Paragraph 1 above, and shall make said records available
Page 2 of 5
to Owner for inspection in its offices located at 1111 H Street, Greeley, Colorado,
during normal business hours, Monday through Friday, except during holidays
recognized by Weld County. Each royalty payment made to Owner shall be
accompanied by a statement of the amount of gravel mined by County since the
close of the previous mining period for which the previous royalty payment was
made.
c. County shall be responsible for obtaining all necessary State, County and Federal
permits, which shall not include permits for asphalt and/or concrete batch plants.
County shall pay the entire cost of necessary surveying for the mining operation.
County shall consult with Owner during the permitting process and shall exercise
due diligence in obtaining all required permits in a timely fashion. County shall
conduct the mining and extraction activities in compliance with the terms of each
permit, specifically including the permit issued by the Colorado Division of
Reclamation, Mining and Safety.
d. County shall be responsible for the construction and maintenance of any
improvements required by the terms of the permit. Following cessation of its
mining activities, County shall remove the improvements, unless Owner requests
that such improvements remain. If County constructs a temporary entrance/exit on
the leased area, said temporary entrance/exit may be left intact for Owner's use only
if an access permit can be issued to Owner consistent with Weld County policy
concerning such permits.
e. County shall notify Owner thirty (30) days prior to the commencement of mining
activities.
f. County shall notify Owner thirty (30) days prior to the cessation of mining
activities. The term of this Agreement, however, will extend to the date of the
release of the permit by the Colorado Division of Reclamation, Mining and Safety.
6. Notices: All notices of Termination or other demands by Owner or by County shall be
made in writing and sent by Certified Mail, Return Receipt, or by E-mail, with a
Confirmation of Receipt, as follows:
OWNER: John L. Peters
ADDRESS: P.O. Box 37,
Hereford, CO 80732
COUNTY: Jay McDonald, Director of Public Works
ADDRESS: P.O. Box 758
Greeley, Colorado 80632
EMAIL: jmcdonald@co.weld.co.us
7. Non -Assignment: This Agreement shall not be assigned by either party without the
express written consent of the other party. Such consent shall not be unreasonably
withheld.
Page 3 of 5
8. Recitals: Each of the Recitals set forth in the introduction of this Agreement forms a
part of this Agreement and is expressly incorporated into this Agreement of the parties.
9. Approval by the Board of County Commissioners of Weld County: This
Agreement shall not be valid until it has been first approved by the Board of County
Commissioners of Weld County, Colorado or its designee.
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 Enforcement: 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. Entire Agreement/Modifications: This Agreement contains the entire agreement
between the parties hereto and supersedes any other agreements concerning the subject
matter addressed in this Agreement. No modifications, amendments, notations,
renewals or other alteration of or to this Agreement shall be deemed valid or of any
force or effect whatsoever, unless mutually agreed upon in writing by the parties to this
Agreement. This Agreement may be changed or supplemented only by a written
instrument signed by both parties.
13. Acceptance not Waiver: No breach of any term, provision or clause of this Agreement
shall be deemed waived or excused, unless a waiver or consent shall be made in writing
and signed by the party claimed to have waived or consented to the breach. Any consent
by any party hereto, or waiver of a breach by the other party, whether express or
implied, shall not constitute a consent to, waiver of, or excuse for any other different
or subsequent breach.
14. Interruptions: Neither party to this Agreement shall be liable to the other for delays
in delivery or failure to deliver or otherwise to perform any obligation under this
Agreement, where such failure is due to any cause beyond its reasonable control,
including, but not limited to Acts of God, fires, strikes, war, flood, earthquakes or
Governmental actions.
15. No Conflict. During the term of this Agreement, no employee of Owner nor any
member of Owner's family shall serve on a County Board, committee or hold any such
position which either by rule, practice or action nominates, recommends, or supervises
County's activities of Owner's property.
16. Severability. If any term or condition of this Agreement shall be held to be invalid,
Page 4 of 5
illegal, or unenforceable, 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.
17. Attorney's Fees/Legal Costs: In the event of a dispute between County and Owner
concerning this Agreement, the parties agree that County shall not be liable to or
responsible for the payment of attorney fees and/or legal costs incurred by or on behalf
of Owner.
18. Fund Availability: Financial obligations of County, payable after the current fiscal
year, are contingent upon funds for that purpose being appropriated, budgeted and
otherwise made available. By execution of this Agreement, County does not warrant
that funds will be available to fund this Agreement beyond the current fiscal year. No
portion of this Agreement shall be deemed to create an obligation on the part of County
to expend funds not otherwise appropriated or budgeted for. County will not engage in
mining and/or crushing activities unless funds for such activities have been
appropriated, budgeted or otherwise been made available for such activities.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first
stated above.
Owner Signature:
Printed Name: John P; ers
t
Date:
WELD COUNTY:
ATTEST: BOARD
.� BOARD OF COUNTY COMMISSIONERS
Weld Coun er the : o WELD COUNTY, COLORADO
BY:
Deputy C rk to the B • �'`��� : arbara Kirkmey - r, Chair
APPROVED AS TO FUN
'04420.
Controller
APPROVED AS TO FORM:
County Attorney
CT 1 9 2015
APPROVED AS e BSTANCE:
Ele O icial or Department Head
N 17
Director of General Services
a2b/.5' 33 / 7
Page 5 of 5
Exhibit A
Legal Property Description
Approximately 80 acres, located in the South half of the Southwest quarter (S '/2 of SW '/4), of
Township 12 North, Range 63 West, of the 6th P.M, Weld County, Colorado.
A 24 foot wide access road, located outside of the 50 ft pipeline easement, extending from CR
136.5 south to the northern boundary of the described mining permit area as follows:
Beginning at a point which is located 2464 feet north of the Southwest corner of Section 26,
Township 12 North, Range 63 West, of the 6th P.M. and commencing thence S00°37' 14"W a
distance of 1124 feet.
d data in this product is subject to dons
cy and completeness cannot be an
guarant"acl: ettnn of of lots. parcels or land
database do - mply that the Iota or parcels were c
that the land ue - ply with applicable State or Local
WELD COUNTY MAKES NO WARRANTIES OR G
EITHER EXPRESSED OR IMPLIED, AS TO THE
ACCURACY OR CORRECTNESS OF SUCH P
ACCEPTS ANY LIABILITY ARISI GF'_• ;.fX
INCOMPLETE. OR MISLEA•
THEREIN.
Hello