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HomeMy WebLinkAbout20142039.tiff RESOLUTION RE: APPROVE FULL AND FINAL SETTLEMENT OF AGREEMENT FOR PURCHASE OF GRAVEL AND DRAINAGE EASEMENTS AND GENERAL RELEASE OF ALL CLAIMS AND AUTHORIZE CHAIR TO SIGN -R.M. HINER CONSTRUCTION COMPANY, INC./ REX AND SHARON HINER 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 Full and Final Settlement of Agreement for Purchase of Gravel and Drainage Easements and General Release of All Claims 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 R.M. Hiner Construction Company, Inc./Rex and Sharon Hiner, with terms and conditions being as stated in said agreement and release of claims, and WHEREAS, after review, the Board deems it advisable to approve said agreement and release of claims, 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 Full and Final Settlement of Agreement for Purchase of Gravel and Drainage Easements and General Release of All Claims 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 R.M. Hiner Construction Company, Inc./Rex and Sharon Hiner be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement and release of claims. CC: PW(Fpm) CA CS) 9-1- IA4 2014-2039 EG0070 SETTLEMENT OF AGREEMENT - R.M. HINER CONSTRUCTION COMPANY, INC./ REX AND SHARON HINER PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 9th day of July, A.D., 2014. BOARD OF COUNTY COMMISSIONERS ELD COUNTY, ORADO (� ATTEST: �' �C ja;� �� 4Q t.4Ju Douglas Rademacher, C air Weld County Clerk to the Board rbara Kirkmeyer, P o-Tem BY: D p y Clerk to the Bo."7 �— ���` ""° nP. Conway KAPPEdY FORM: Mike Free unty Attorney William F. Garcia Date of signature: '7-/7 2014-2039 EG0070 BOARD OF COUNTY COMMISSIONERS PASS-AROUND REVIEW/WORK SESSION REQUEST RE: Hiner Gravel Pit DEPARTMENT: Public Works DATE: 6/18/14 PERSON REQUESTING: L Jay McDonald Brief description of the problem/issue: Weld County has an agreement from 1995 to excavate and process gravel from the Hiner property immediately West of the current Public Works campus. The agreement has several conditions, all but 1 of which has been satisfied. The remaining issue concerns 7,500 cubic yards of gravel that were supposed to have been left on site for their (Hiners) use. That never happened. The Hiners would like to resolve this remaining issue, as would I. As a result of a meeting with Mr. and Mrs. Hiner, a proposal to pay them for the gravel was approached and a dollar amount of$37,700.00 was agreed to by them. What options exist for the Board? 1. Approve the payment to resolve the remaining issue with the original agreement. 2. Transport 7,500 cubic yards of surface gravel to the Hiner property. Recommendation: Public Works Department recommends approval of the payment (option 1). To transport the gravel from our stockpile to their property would add approximately a dollar per ton to the $3.77 per ton value of the material we have produced, and we would lose 9,750 tons of product that we have in our stockpile. The 7,500 cubic yards equates to 9,750 tons. I agreed to round the tonnage up to and even 10,000 tons and calculate the cost at the $3.77 per ton. (The cost of surface gravel at commercial gravel pits is around $6.77 per ton.) Approve Schedule Recommendation Work Session Other/Comments: Douglas Rademacher,Chair Barbara Kirkmeyer, Pro-Tem Sean P. Conway Mike Freeman William F. Garcia (h MX Administration\Forms\WorkSession-passaround.doc FULL AND FINAL SETTLEMENT OF AGREEMENT FOR PURCHASE OF GRAVEL AND DRAINAGE EASEMENTS, AND GENERAL RELEASE OF ALL CLAIMS Rex and Sharon Hiner, on behalf of themselves and on behalf of R. M. Hiner Construction Company, Inc. (collectively referred to herein as, "Releasors"), with the intent of binding themselves, their heirs, assigns, and legal representatives, hereby execute this Full and Final Settlement of Agreement for Purchase of Gravel and Drainage Easement, and General Release of All Claims(hereinafter referred to as, "General Release"), in favor of the following entities and/or persons: the County of Weld, the Board of County Commissioners of the County of Weld, its officers and employees (collectively referred to herein as, "Releasees"). On March 31, 1995, the Board of County Commissioners of Weld County ("County") and R.M. Hiner Construction Company, Inc. ("Hiner"), entered into an "Agreement for Purchase of Gravel and Drainage Easements," being recorded in the Office of the Weld County Clerk and Recorder at Book 1487, Page 367, Reception Number 2434138 (hereinafter referred to herein as, "Agreement"). A copy of the Agreement is attached hereto. The Agreement included various terms and conditions, including certain amounts to be paid and gravel to be provided by County to Hiner, and certain tasks to be performed by both parties. As of the date of the signing of this General Release, Hiner and County agree and acknowledge that all of the terms and conditions set forth in the Agreement are complete to the satisfaction of both parties, and both parties therefore consider the Agreement to be final and concluded; except that paragraph 14 of the Agreement - County's requirement to provide Hiner with 7,500 yards of gravel crushed to County road specification has not yet been fulfilled, and it is a claim by Hiner for which County is still obligated. County has agreed to pay Hiner the sum of$37,700 in lieu of delivering to Hiner said 7,500 yards of gravel. Full and final consideration for this General Release is the payment of$37,700 by County to Hiner, made on the date of the signing of this General Release, the receipt of which is hereby acknowledged by Hiner. In consideration of the receipt of such payment, Releasors voluntarily and knowingly release and forever discharge the Releasees from any and all claims, demands, actions at law or in equity that they have ever had or now have or which they may have in the future, or that anyone claiming through or under them has had or now has or may in the future have, against the Releasees, in any manner arising out of the terms and conditions set forth in the Agreement, including, but not limited to, claims concerning all mining, reclamation, and any other work or activity henceforth performed by County pursuant to the terms and conditions of the Agreement. Releasors understand and acknowledge that this is a full, complete, and final release of the Releasees from any and all claims the Releasors may have or in the future have against the Releasees for the performance by County of the terms and conditions of the Agreement, and/or for the work performed by County pursuant to the terms and conditions of the Agreement, and that the consideration described above is all they will ever receive concerning any claims they may have or 1 4035676 Pages: 1 of 3 2014-2039 08/04/2014 02:00 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 1111 in the future will have regarding the terms and conditions of the Agreement, including County's performance pursuant thereto. Additionally, County agrees and acknowledges that Hiner has, as of the date of the signing of this General Release, fulfilled all requirements of it as set forth in the terms and conditions of the Agreement. RELEASORS HAVE READ THIS GENERAL RELEASE AND REALIZE THAT ITS CONTENTS HAVE IMPORTANT LEGAL CONSEQUENCES. THEY HAVE BEEN ENCOURAGED TO CONSULT WITH AN ATTORNEY OF THEIR CHOICE TO DISCUSS THE PROVISIONS OF THIS GENERAL RELEASE. THEY UNDERSTAND ALL OF THE CONTENTS HEREOF. THEY FURTHER UNDERSTAND THAT THEY ARE RELEASING ANY AND ALL CLAIMS, DEMANDS, ACTIONS AT LAW OR IN EQUITY THAT THEY, THEIR HEIRS, ASSIGNS, AND LEGAL REPRESENTATIVES HAVE OR MAY HAVE AGAINST THE RELEASEES ARISING OUT OF OR IN ANY WAY RELATED TO THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, CLAIMS CONCERNING ALL OF THE WORK HENCEFORTH PERFORMED BY COUNTY PURSUANT TO THE TERMS AND CONDITIONS OF THE AGREEMENT. Dated this )sf day of / , 2014. REX AND SHARON HINER, ON BEHALF OF THEMSELVES AND ON BEHALF OF R. M. HINER CONSTRUCTION COMPANY, INC. ex Hiner 01/4t \ aTocni, Sharon H. er / SHARON BENSON STATE OF 06 16'e a cI TSTATTEOOFF CO SS NOTARY 020084020155 MY�'SSI0N EXPIRES MAY 24„2018 COUNTY OF Cue id The foregoing instrument was acknowledged before me this / day of /r , 2014, by Rex and Sharon Hiner, on behalf of themselves and on behalf of R. M. Hiner Construction Company, Inc. Witness my hand and official seal. ` friv o — Goo,,-, EKE '.t ✓ 3Xv4/9 Notary Public 2 08/304/201402076 0 PM RF07:".00 Steve Moreno, Clerk and Recorder, Weld county, CO �111I 1 IVCI'it'�au�i� '�K'��iY�4,kN1h�.Y'K�bt4 FOR WELD COUNTY AND RELEASEES: ATTEST:Wa *ICS; ., BOARD OF COUNTY CLERK TO THE BOARD ��� \°La% COMMISSIONERSOF THE COUNTY OF ELD , e . By: �Li/e i �_I � t•:�!i, .�"D � By:��cjl� c�A11r10b" • Deputy Cl to the Board ��, j� Douglas Rademacher, Chairman JUL 0 9 2014 3 4035676 Pages: 3 of 3 08/04/2014 02:00 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 1111�411NINI,il+ilYh4Il'M'i Qk�641141,1 amid 11111 RESOLUTION RE: APPROVE AGREEMENT FOR PURCHASE OF GRAVEL AND DRAINAGE EASEMENTS AND AUTHORIZE CHAIRMAN 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 an Agreement for Purchase of Gravel and Drainage Easements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County and R.M. Hiner Construction Company, Inc., 11 Austin Road, Lamar, Colorado 81052, 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 Purchase of Gravel and Drainage Easements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County and R.M. Hiner Construction Company, Inc. be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chairman 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 3rd day of April, A.D., 1995. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, C LO DO ATTEST / / r ', it ��� .�� ,,,,,,,,,..• �,,.. �.�•'% ,,,z, 7 Dale K. Hall, Chairman Weld County Clerk to the Board / / .J �, 'A // /, rba J. Kirkmeye , P -Tel By: �ZiLr6-� .„C/✓�-��ti>i�G,-.tom '0-1?-4---"Z. eputy Clerk to the Board __ rtr George . Baxter APP AS TO FORM: ` `�G�� ‘-_/ :"..-_-,1 nstence L. Harbert O-1A- 2 7 nt�Rtto rney[ ' W. . Webste 950634 EG0034 CS C_) 'r9`Pte); f/'fie/' THIS AGREEMENT is made and entered into this,.1=day of March, 1995 by anti between R.M.Hiner Construction Company,Inc.,whose address is 11 Austin Road,Lamar,Colorado 81052, hereinafter referred to as "Hiner," and County of Weld, Colorado, by and through the Board of County Commissioners, whose address is 915 Tenth Street, Greeley, Colorado 80631, hereinafter referred to as"County." WITNESSETH: WHEREAS, County currently owns property located in the N2N2NW4 of Section 31, Township 6 North,Range 65 West of the 6th P.M.,Weld County, Colorado, hereinafter referred to as "Tract A,"being more particularly described in the attached Exhibit"A", and WHEREAS, Hiner owns property located immediately to the south of County's above- described property, with such property owned by Hiner being hereinafter referred to as "Hiner Property"and being more particularly described in the attached Exhibit"B", and WHEREAS, County is currently in need of gravel for use in its road and bridge operations, and WHEREAS, County is also in need of the placement of drainage easements on Hiner Property for the purpose of providing drainage from Tract A and from property located in Sections 19 and 30,Township 6 North,Range 65 West of the 6th P.M., Weld County, Colorado, and WHEREAS, the parties now desire to enter into this Agreement to convey the gravel to County and to provide for the drainage easements necessary for the proper drainage associated with Tract A. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. County agrees to purchase and Hiner agrees to convey to County the right to mine gravel from two parcels located on Hiner Property. The first parcel has not been mined and is approximately 3.2 acres in size. The second parcel is currently a lake. being approximately 19.5 acres in size and having been partially mined previously. 2. The majority, if not all,of the Hiner Property is permitted for a gravel pit operation by the Mined Land Reclamation Board, Permit No, M-77-151. County agrees to comply with all requirements of such permit and to reclaim both parcels on which County conducts mining operations in accordance with the reclamation plan being a part of Permit No. M-77-151. In the event County determines prior to July 10, 1995,that it cannot comply with the permit requirements and the reclamation plan, Page 1 of 5 Pages 2434138 8-1487 P-367 04/14/95 O1:30P PO 1 OF 7 REC D0C Weld County CO Clerk & Recorder 0.00 950634 or warranties regarding the requirements for reclamation and other permit requirements. In the event County elects to proceed with mining, it shall do no act nor take any action which would jeopardize the financial warranty posted by Hiner with the Mined Land Reclamation Board. In the event Hiner's financial warranty is forfeited or drawn upon by said Board as the result of the actions of County,Hiner's sole remedy shall be to recover from County any costs incurred by him associated with the action taken against the financial warranty. 3. Hiner has an adjudicated irrigation well on the Hiner Property which is currently augmented by G.A.S.P. It is believed, however,that an augmentation plan will be necessary in order to satisfy local, state, and federal requirements for water augmentation resulting from the mining operations contemplated by County on said parcels. Hiner shall pay for any and all consultation services necessary to complete the augmentation plan and shall purchase all water necessary to comply with the augmentation plan. County agrees to review the current augmentation and the augmentation plan to be completed in the future. In the event County determines that the current augmentation or the augmentation plan is insufficient for open pit mining, County shall have the right to terminate this Agreement and both parties shall be released from their respective rights and obligations herein provided. Hiner makes no representations or warranties as to the adequacy of the augmentation for open pit mining. County shall provide its staff to assist Hiner and his consultant in producing the augmentation plan. 4. Hiner shall dedicate to County any and all drainage easements necessary to provide proper drainage for correctional facilities to be built on Tract A and to provide drainage for that property located in Sections 19 and 30, Township 6 North,Range 65 West of the 6th P.M., Weld County, Colorado. The drainage from Sections 19 and 30, Township 6 North, Range 65 West shall include storm water and waste agricultural irrigation water from approximately 236 acres in said sections. The drainage from Tract A shall be for storm water and for landscaping irrigation. 5. County shall build and pay for all drainage facilities required, including culverts and cement aprons,for the drainage onto Hiner Property within said drainage easements. 6. County shall build spillway structures for Hiner from lakes located on Hiner Property and for water directed to the Poudre River. 7. County shall,in the course of mining the 3.2 acre parcel,transport excess top soil to the west side of Hiner's access road to fill a flood plain area which currently exists. 8. County shall mine the 3.2 acre and 19.5 acre parcels in such a way as to provide Page 2 of 5 Pages 2434138 B-1487 P-367 04/14/95 01:30P PG 2 OF 7 950634 9. County shall pay Hiner the sum of$73,361 for the right to mine said gravel from the parcels described herein and to purchase the drainage easements described herein, which shall be paid one-half ($36,680.50) on July 10, 1995, and one-half ($36,680.50)on July 10, 1996. 10. County shall build and maintain a road accessing Hiner Property and provide a secured access to Hiner and his guests. The parties agree that the location of said access road shall be agreed to at a later date. County further agrees to mine the 3.2 acre and 19.5 acre tracts in such a way as to provide Hiner with a roadway along the northern edge of the lake on the 19.5 acre tract. 11. County shall mine the 3.2 acre and 19.5 acre tracts according to a schedule agreed to with Hiner to minimize the impact to recreational uses of the lake on the 19.5 acre tract. 12. County shall make a good faith effort to complete all mining and remove all mined materials as soon as possible; however, all such mining and removal shall be completed no later than five years after the signing of this Agreement. 13. Hiner agrees to allow the storage of all mined materials on Hitter Property until County removes the same. 14. County shall mine and leave for Hiner's use 7,500 yards of gravel crushed to county road specifications. 15. With only those exceptions as specifically stated herein,this Agreement contains the entire agreement and understanding between the parties to this Agreement and supersedes any other agreements concerning the subject matter of this Agreement, whether oral or written. No modification,amendment,novation, renewal,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 undersigned parties. No breach of any term, provision,or clause of this Agreement shall be deemed waived or excused,unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party hereto or waiver of a breach by any other party,whether express or implied,shall not constitute a consent to,waiver or, or excuse for any other different or subsequent breach. 16. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable, this Agreement shall be construed and enforced without such a provision,to the extent that this Agreement is then capable of execution within the Page 3 of 5 Pages 2434138 B-1487 P-367 04/14/95 01:30P PG 3 OF 7 450634 17. No portion of this Agreement shall be deemed to constitute a waiver of any immunities the parties or their officers or employees may possess, nor shall any portion of this Agreement be deemed to have created a duty of care that did not previously exist with respect to any person not a party to this Agreement. 18. County agrees to indemnify and hold Hiner harmless from all claims, obligations and liability arising from and by virtue of County's mining of gravel and construction and operation of the drainage facilities located on Hiner's property; provided, however,that the liability of County shall be limited to the limits of County's liability insurance coverage, which County shall maintain throughout the term of this Agreement in an amount not less than$1,000,000. 19. County shall be responsible for maintenance of its drainage facilities and shall repair any damage to the Hiner property caused by County's installation and operation of its drainage facilities. 20. County shall arrange for KLH Engineering to prepare a set of plans and specifications for the drainage facilities. Upon their completion,they shall be subject to review and approval by Hiner and a copy thereof shall be attached to and made a part of this Agreement. 21. The ingress and egress of County over the Hiner Property for the installation,repair, maintenance,and operation of the drainage facilities shall be limited to those routes depicted on the plans produced by KLH Engineering on behalf of County and approved by Hiner as required in paragraph 20.,above. 3 I parties WITNESS WHEREOF,the hereto have subscribed their names this day of March, 1995. ATTEST: R. M. HINER CONSTRUCTION COMPANY, C. • BY: L L( G. 61w--UBY: Corporate Secretary Rex Hiner, President If 1 Page 4 of 5 Pages 2434138 B-1487 P-367 04/14/95 01:30P PG 4 OF 7 9E9634 CLERK TO THE $ )AR.D COUNTY COMMISSIONERS BY; a,,eZ4Z/ BY: / BY: �� Deputy C o the Board Daley. Hall, Chairman M:\W PFILESIAGREEIHINER2.GJB Page 5 of 5 Pages 2434138 B-1487 7 P- 7 1 3fi 04/14/95 01:30P PG 5 OF 7 950634 The NW4 of Section 31, Township 6 North, Range 65 West of the 6th P.M., Weld County, Colorado, EXCEPTING THEREFROM a tract of land as conveyed by Deed recorded July 28, 1903 in Book 207 at Page 398,being more particularly described as follows: The south 120 acres of the NW2 of Section 31. Township 6 North,Range 65 West of the 6th P.M. Also,EXCEPTING THEREFROM a strip of land 20 feet wide over and across the NW4 of Section 31,Township 6 North,Range 65 West of the 6th P.M.,being more particularly described as follows: Commencing at a point on the north line of south 120 acres of NW4 of said Section 31, a distance of 500 feet east from the northwest corner of said 120 acres; thence north in a direct route to public highway on the line common to Sections 30 and 31, Township 6 North, Range 65 West of the 6th P.M. Also, EXCEPTING THEREFROM a tract of land conveyed by Deed recorded March 22, 1927 in Book 806 at Page 541,being more particularly described as follows: All that part of the N2N2NW4 of Section 31,Township 6 North, Range 65 West of the 6th P.M., lying west of the right-of-way for a private road,over and across the strip of land 20 feet wide described above,as conveyed by Deed recorded July 28, 1903 in Book 207 at Page 398. Also, EXCEPTING THEREFROM all that part of the NW4 of said Section 31 lying north of the north line of the south 120 acres of said NW4, south of the south line of the N2N2 of said NW4 and west of the right-of-way for a private road, over and across the strip of land 20 feet wide described above,as conveyed by Deed recorded July 28, 1903 in Book 207 at Page 398. Also,EXCEPTING THEREFROM any portion of the NW4 of said Section 31 which may lie south of the north 44.32 acres thereof and north of the south 120 acres thereof. But, INCLUDING any and all improvements located thereon and all minerals located thereunder, with the exception of oil and gas. 2434138 H-1487 P-367 04/14/95 01:30P PG 6 OF 7 950634 Parcel 1: The E2NE4 of Section 36,Township 6 North,Range 66 West of the 6th P.M.,County of Weld,State of Colorado. EXCEPTING THEREFROM a parcel of land conveyed to the Denver, Laramie, and Northwestern Railroad Company by deed recorded October 14, 1910 in Book 337 at Page 66. ALSO EXCEPTING THEREFROM a parcel of land conveyed to L.K. Lee by deed recorded Aprii 22, 1960 in Book 1556 at Page 347. ALSO EXCEPTING THEREFROM a parcel of land conveyed to Harold IL Short and James G. Milne by deed recorded April 5, 1968 in Book 593 as Reception No. 1515004. Parcel 2: The south 120 acres of the NW4 of Section 31,Township 6 North, Range 65 West of the 6th P.M., County of Weld,State of Colorado, Together with right-of-way for a private road 20 feet in width over and across the remainder of said NW4 of Section 31,described as commencing at a point 500 feet east of the northwest corner of said 120 acre tract; running thence north in a direct line to the public highway between Sections 30 and 31 in said Township and Range; ALSO,that part of the N2N2NW4 of Section 31,Township 6 North,Range 65 West of the 6th P.M., County of Weld, State of Colorado, lying west of the private road above described. EXCEPTING THEREFROM parcels of land conveyed to the Denver, Laramie, and Northwestern Railroad Company by deeds recorded November 7, 1910 in Book 337 at Pages 159 and 160, ALSO EXCEPTING THEREFROM a parcel of land conveyed to L.K.Lee by deed recorded April 22, 1960 in Book 1556 at Page 347. Together with all water and water rights,ditch and ditch rights,reservoir and reservoir rights,if any, appurtenant to the property, including,but without limitation, irrigation wells registered with the State Engineer's Office of the State of Colorado, Registration No. 014147F, Registration No. 11845F, and Registration No. 19712. 2434133 8-1487 P-367 04/14/95 01:30P PG 7 OF 7 950634 Hello