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Home My WebLink AboutC10-046 Sixth Amendment to Sand and Gravel Mining LeaseSIXTH AMENDMENT TO SAND AND GRAVEL MINING LEASE This Sixth Amendment to Sand and Gravel Mining Lease (hereafter "Sixth Amendment") is entered into this ?away of "' ~ °, , ,,,~. ,_2010, effective as of the same date, by and between Eagle County, Colorado, a body corporate ` nd politic ("County or Lessor"), through its Board of County Commissioners, and Lafarge West, Inc., a corporation ("Lafarge or Lessee"). RECITALS A. The history of this Lease is the following: (1) Lease from Loren G. Chambers to Flatiron Paving Company, dated December 29, 1980; (2) Assignment and Assumption of Leasehold between Flatiron Paving Company (as assignor), Mobile Premix Company (predecessor of Lessee, as assignee), and Loren G. Chambers (as owner), dated November 30, 1984; (3) Modification to Sand and Gravel Mining Lease between Loren G. Chambers (as Lessor) and Mobile Premix Company (predecessor of Lessee, as Lessee), dated December 8, 1986, and recorded in the official records of the Clerk & Recorder at Book 454 Page 514; (4) Assignment of Lease between Eagle County (as assignee), Mobile Premix Company (predecessor of Lessee, as Lessee) and Loren G. Chambers (as assignor), dated December 8, 1986, and recorded in the official records of the Clerk & Recorder of Eagle County at Book 456 Page 596; (5) Second Amendment to Sand and Gravel Lease, entered into July 21, 1997, with Western Mobile Pre-Mix Company (predecessor of Lessee, as Lessee) effective April 1, 1997; (6) Third Amendment of Sand and Gravel Lease, entered into October 2, 1998 between Lessor and Western Mobile Northern, Inc. (hereafter, "Third Amendment"). (7) Fourth Amendment of Sand and Gravel lease, entered into March 20, 2001 between Lessor and Western Mobile Northern, Inc., a wholly owned subsidiary of Lafarge West, Inc. (hereafter, "Fourth Amendment"). (8) Fifth Amendment of Sand and Gravel lease, entered into March 21, 2006 between Lessor and Lafarge West, Inc. (hereafter "Fifth Amendment"). The foregoing is referred to, together, as the "Existing Lease." B. Areas described herein and in the Existing Lease on which County is permitting mining and processing are or will be permitted for those activities by the Colorado Mined Land Reclamation Board prior to commencement of mining and processing activities. ~'~ C. In the previous amendments, the Parties expanded the area of the Existing Lease for the purpose of expanding the gravel resource available for mining, and extended the Existing Lease to allow time to mine the expansion areas. D. The Parties now wish to expand the area of the Lease for the same purpose. Prior to Mining the new Expansion Area, further identified as Area F to be defined through the special use permit, Lafarge will obtain permission for gravel mining by the Colorado Mined Land Reclamation Board and by a special use permit from Eagle County. Nothing herein shall be a commitment, guarantee, or otherwise provide any types of entitlements as to the outcome of such permitting. TERMS AND CONDITIONS THEREFORE, in consideration of the mutual promises set forth herein and in the Existing Lease, the parties agree: I . Hereinafter, "Lease" means and refers to the Existing Lease as amended by this Sixth Amendment. 2. Article 1 of the Existing Lease is hereby amended to add the property designated as "Expansion Area" as more particularly described on and depicted in the site plan attached hereto and incorporated herein by reference as Exhibit 1 dated July 13, 2009. Notwithstanding the foregoing, the lease of the Expansion Area is contingent upon Lafarge first obtaining, and delivering to County, a true copy of a county special use permit for mining gravel thereon detailing the legal description of the Expansion Area and a Mined Land Reclamation Board permit therefore. By entering into this Lease, County acts only in its proprietary capacity and makes no representation that a special use permit will be granted. This Lease shall be subject to all terms and conditions set forth in the Mined Land Reclamation Board permit and Eagle County's special use permit. Lafarge shall commence the permitting process for these permits within sixty (60) days from the date of execution of this Sixth Amendment. 3. Also, notwithstanding the foregoing, the Expansion Area is on property currently under lease to the Western Eagle County Metropolitan Recreational District ("WECMRD"). Accordingly, and not withstanding the foregoing Lease Amendment in Article 2 above, no mining or processing activities may take place absent the written permission of WECMRD. It is anticipated by the Parties that this permission is to be given upon satisfactory agreements to relocate the ball fields as discussed herein. This Sixth Amendment to the Lease is conditioned upon Lafarge obtaining requisite WECMRD approvals and will be terminated without cost to either party if such approval is not obtained. Lafarge shall obtain such requisite permission of WECMRD prior to occupying the Expansion Area. 4. Hours of operation, environmental management plans, dust control plans, noise control plans, etc. shall be as agreed to and authorized by Eagle County through the special use permitting process. Failure to comply with these plans shall be deemed a violation of the lease and cause for termination pursuant to the default provisions of Article 12. 2 5. Lafarge will complete all excavation from the Expansion Area by not later than December 31, 2025, and shall thereafter conduct no further excavation therefrom, and Article 2 of the Existing Lease is hereby amended to provide for the same. 6. Lafarge shall complete reclamation up to reseeding the Expansion Area by no later than December 31, 2027, and Article 2 of the Existing Lease is hereby amended to provide for the same. The Parties acknowledges hereby that all of the leased premises must be mined and reclaimed in accordance with the Lease and State mining permit and be vacated by that date. 7. After Excavation of the Expansion Area is completed, the Expansion Area shall be reclaimed as agricultural farm land with the exception of a permanent aggregate surfaced access road to the relocated ball fields as more particularly set forth in Article 18 hereunder. Lafarge agrees to reasonably work with the County after excavation of the Expansion Area is completed in reclaiming the site in a manner that will enhance the operation of the relocated ball fields. Such enhancements may include, but are not limited to, slope ratios in and around the reclaimed ball fields that may provide spectator seating. Except as otherwise specifically stated herein, reclamation of the Expansion Area will be in conformance with the plan to be presented and approved by Eagle County through the special use permitting process. Reclamation shall be deemed complete when site preparation is completed pursuant to an approved plan and the revegetation plants are fully established for a period of one year. Lafarge will revegetate with topsoil or appropriate nutrients, reseed, and maintain plants to the extent required to establish growth consistent with the natural vegetation (before mining) at any time during the two years following the expiration or earlier termination of this Lease. The obligation to reclaim survives the termination of the Lease. 8. This Sixth Amendment shall terminate at the earlier of the dates set forth in Articles 5 and 6 herein or upon the completion of the reclamation in the Expansion Area. All of the other leased areas identified as Areas A-D on the attached Exhibit 1 will be mined and reclaimed in accordance with the Existing Lease. 9. Lafarge agrees to provide the capital in a total amount not to exceed $3.925 million to fund the relocation of the ball fields from the current location to the location shown on Exhibit 1. Expenditures for such relocation may include, but are not necessarily limited to: fields and associated enhancements, paved parking, access roads and trails, utilities, restrooms, concessions, storage, lighting, playgrounds, irrigation ditches and other improvements deemed necessary by the County for the construction and enhancements of the ball fields. Such capital payment will be made to the County after all relevant state mining and County special use permits have been obtained. The capital payment will be made into an escrow account approved by both parties with payment to be made as contracts for the construction of the relocated ball fields or other improvements have been performed and payment to the contractors becomes due. This Sixth Amendment to the Lease is conditioned upon Lafarge obtaining requisite state mining permit, County special use permit, or WECMRD approvals. Lafarge will diligently pursue all permits and provide the County with periodic updates of progress. 10. Lafarge acknowledges that there may be utilities crossing through the Expansion Area, including but not limited to water, sewer and gas lines. The County shall make existing documentation regarding utility locations in its possession available to Lafarge upon request. At all times during this Lease, access and non-interrupted water and utilities must be available to the relocated ball fields, area residences and the Eagle County Animal Shelter and Lafarge shall not conduct any activities under the Lease so as to interfere with water and utility service. The County will undertake relocating its water, sewer and gas lines so as not to interfere with Lafarge's mining operations, and that the cost for said relocation shall be included in Lafarge's capital commitment set forth in Article 9 of this Sixth Amendment. 1 I . The County will select necessary third party contractors to design and construct the new ball fields, which contractors must be reasonably satisfactory to Lafarge. Lafarge shall have the right to participate in development and approval of design and construction plans so as to ensure their compatibility with Lafarge operations and the final reclamation plans. 12. Lafarge may terminate this Sixth Amendment to the Lease without cost if it fails to obtain the permits for such operations or otherwise determines that the permits obtained do not allow it to operate the facility in a financially sound manner. Except as expressly set forth hereunder, the County may terminate this Sixth Amendment to the Lease at any time for any reason, including but not necessarily limited to Lafarge's inability to obtain permits in a timely fashion or the County's inability to secure a satisfactory contract to relocate the ball fields. Both Parties may terminate without cost until such time as the capital payment by Lafarge to the County set forth in Article 9 has been paid into an escrow account. Capital payment will not be accepted by the County until such time as all contingencies have been satisfied and the County has determined, in its sole discretion, that the ball fields can be relocated at a cost and time frame acceptable to the County. Once the capital payment has been made to and accepted by the County, termination by either Party may only be for a material breach of the terms and conditions herein and the failure of the breaching party to cure the default within 30 days after receiving written notice of default from the other party, provided that if the nature of the default is such that it cannot be fully cured within 30 days after notice, the defaulting party shall have a reasonable time to diligently complete cure of the default. Additionally, all monies paid by Lafarge to County pursuant to Article 9 herein shall become non-refundable to Lafarge once that money is paid or owing by County to any third parties hired to design or construct the relocated ball fields. 13. It is expressly understood by Lafarge that no mining or processing activity of any kind may take place on the Expansion Area until such time as the new ball fields have been constructed and available for use as authorized by WECMRD. 14. Upon execution of this Agreement, Lafarge will also seek special use permit approval for proposed additional mining activities on the current leased premises identified as Area B on the attached Exhibit 1. If Lafarge is unable to obtain such approvals, Lafarge may terminate this Sixth Amendment to the Lease without cost. It is anticipated by Lafarge that Area B will continue to be mined while permits are being obtained for the Expansion Area. Lafarge agrees to cooperatively work with the County and the third party contractor selected to design and construct the relocated ball fields to ensure that all mining and reclamation activities are done in a 4 way to leave Area B with the appropriate foundation, elevation, and grade necessary for new ball field construction. Such foundation, elevation, and grade requirements will be as determined by the third party contractor and/or the County and Lafarge, and Lafarge shall incorporate these recommendations into its operation and reclamation of this Area B. Notwithstanding the royalty waiver identified in Article 15 hereunder, if this Sixth Amendment is terminated for any reason prior to the construction of the relocated ball fields, Lafarge will pay to the County a royalty amount from all materials sold from the additional mining activity on Area B in an amount of $1.75/ton. In the event the ball fields are constructed, all or a portion of this royalty payment will be waived as set forth in Article 15. 15. County agrees to waive the royalty payments currently required by Lafarge for mining material sold from the Expansion Area and the newly mined area of Area B until such time as Lafarge has removed and sold 2,200,000 sale tons of materials under the Lease. Lafarge will present quarterly to County a detailed accounting of materials mined and sold ti-om these sites and shall immediately notify County once the threshold tonnage has been produced and sold. This waiver shall only apply to new material mined pursuant to this agreement. Any previously mined material currently stored anywhere on the Lafarge lease shall remain subject to all applicable royalty payments. Once Lafarge has produced and sold the threshold tonnage, it shall immediately resume paying County royalties. The amount of royalties from all materials sold from the Expansion Area and Area B not subject to the waiver herein shall increase from $1.25 to $ } .75/ton and Article 3 of the Existing Lease is hereby amended to provide the same. 16. At the time of execution of this Agreement, Lafarge will make a $250,000 payment to the County. The County shall use such money as payment toward the design fees of the ball field relocation. If the ball field is relocated, this amount shall be credited against Lafarge's capital funding requirement in Article 9. If this Sixth Amendment is terminated prior to payment by Lafarge of any other amount toward the capital payment, the County will refund this amount to Lafarge in the form of either a direct payment or offset of applicable royalty payments as determined by County. 17. Lafarge will construct a temporary unpaved access road to the relocated ball fields at a location identified by Eagle County and Lafarge and reasonably acceptable to Eagle County. This road shall be installed prior to the completion and use of the relocated ball fields and will be of a standard approved by the County that will allow reasonable ingress and egress by ball field users to the facility. Lafarge's reasonable cost to construct such road, including reasonable usage and labor charges for Lafarge's own equipment and labor, shall be credited toward the capital funding obligation of Article 9. Said temporary access road shall be available for use by the County and the general public until such time as the permanent aggregate surfaced access road identified in Article 18 hereunder is available for use by the County. 18. Lafarge will supply, furnish and install, pursuant to detailed plans approved by the County, a permanent aggregate surfaced access at a location identified by Eagle County. Conditions and provisions of paving are as follows: (A) Final standards and grading will be developed by Eagle County; (B) Depth of Asphalt and road base needs to be identified; (C) Asphalt and oil quality needs to be identified; (D) Maximum length of road needs to be identified; (E) In-house testing of asphalt by Elam Construction. The reasonable cost of such road shall be credited as part of Lafarge's funding obligation pursuant to Article 9, using Lafarge's standard rates for its own equipment and services. The County may, at its discretion, have athird-party contractor perform the road improvements identified in Articles 17 and 18 using the funds made available through Article 9. 19. Lafarge will supply up to 20,000 tons of Class 6 road base material annually to the County upon County request at a cost often dollars ($10) per ton. Beginning with the second year that the County accepts material and annually thereafter, the cost per ton will be increased by the percentage increase of the Consumer Price Index from the previous year's increase. The material will be provided at times mutually agreed to by the Parties. The material may only be used on County sponsored projects. The County may not assign or otherwise transfer its rights to this material to any other projects. 20. Lafarge will provide chain link security fencing (6' high from grade) around the Expansion Area so that at all times access to those portions of the Expansion Area being actively mined are closed to the public. Fencing will include, at appropriate space intervals, signs, printed in both Spanish and English, warning the public that the property is dangerous and the public should keep out. 21. Lafarge will maintain accurate records of material processed and sold from each of the lease areas and make those records available for inspection by the County upon request. 22. At all times during business hours, the County and/or its consultants and agents may enter upon the leased premises on reasonable notice to inspect, survey and conduct tests, relative to the County's planned development of the property and to Lafarge's operations thereon, so long as, before entering the premises, each such individual has been properly trained if such training is required by any federal or state statutes, laws or regulations concerning mine safety training, including the Mine Safety & Health Act and rules, which training Lafarge shall provide upon the County's request. 23. Except as herein expressly amended, the terms and conditions of the Existing Lease shall remain in frill force and effect. 24. If any conflict exists between the provisions of this Sixth Amendment and the Existing Lease, the provisions of this Sixth Amendment shall control. 6 25. This Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. Any dispute of this Lease shall be determined by Colorado law and the venue for the same shall be in Eagle County, Colorado. WHEREFORE, the parties have executed this agreement on, and effective as of, the date first set forth above. "Lessor": COUNTY OF EAGLE, STATE OF COLORADO, By and Through its BOARD OF COUNTY ~~~~' ;COMMISSIONERS ATTEST: ~°~ ~ ~'~ ; •e < ( ~" gy: Clerk of the Board of ~`-~coco~a~°° Sara J. Fisher, hairn~an County Commissioners Date: ~ ~~" ~ ~ ~ "Lessee": ATTEST: By: By LAFARGE WEST, INC., a Delaware co-poration C~i ~ Todd Ohlheiser Vice President/General Manager, Rocky Mountain Aggregates Date: ~ l ~ ~ ____.y ~'~~ ~ i .... _ _ i ~ 4 \ N~ ~ ~`\ ,, 9 \ O ' ~ • 'Lf I , ` ~~~~ o I ~ '~~ r / ~ __~__ i ~~ ~' / ~ 4 . ,~ ~~ _ ~J / F !~• a~ y' a ~ , cjz , 5 FP's s~ ~C"F',- ~~y ~ j ~~.y ~~ `, ,t. -, r- ~" r ~ ~ ~ P ~~_ _ 6 i i ~ ~ ~'"~ ~ a 'i , "`~ . i 1 ~ ~ I'i 1 ~~i i I:. m " i ~ r ~ ~ , i ~ ~ i N iii ~ ~ , ~ ~ ~ ~ ~ i ~ .... ~ ~ ~ i ~ ~' ' ~', ~ i i ~ i t ~~~ ~~~m ~: ~ m D ~ cn ~ ~ 4 ~ ACCE~ ----- t.__-~~~~ - -- ~Ci` T ~ ` . .~,y ~ . ~'' 1 `11„ 11 _'41{k't,T'1, 1 1 ~1 ,~ ; ~~ „nib 1 o y ~ o ~ o ~ ~ ~ A '~~ m ' ? ~ ~ I ~~ ~ ~~ . . , ~ I ~ C N ~ ~ ~ 1 4 ~ ` , / -~`i ~ 1 ~ ~i ~ I 1 ~`~ \ ~ 1 \` ` ' 1 r '/ I l ~ t ~1 ~~ Iii { 1 ` !~~ !~ !V~ I ~ ~ t`, t `~ _ J r- ~~ ~~ ~ ~ , ~ $ ' ~ . ~ D ~ . 1 T N m D m I ~ -~ 0 x r n ~_ v ~ ~ ~ ~~~ F~ t~ `r