Beruflich Dokumente
Kultur Dokumente
This Settlement Agreement (the Agreement) is entered into by and between the parties
identified below, and shall be effective as of March __, 2015 (the Effective Date). This
Agreement is a binding contract, the terms of which are delineated below.
1.
2.
PARTIES
1.1
1.2
1.3
Kerr-McGee and The City may be collectively referred to herein as the Parties.
DEFINITIONS
2.1
The Litigation means the lawsuit styled Kerr-McGee Gathering LLC v. City of
Longmont, Colorado, Case No. 2014CV30895, pending in the Weld County District Court, Weld
County, Colorado.
2.2
recovery of whatever nature, whether presently known or unknown, recognized by the law of any
jurisdiction, including but not limited to actions, causes of action, demands, liabilities, suits,
administrative proceedings, payments, charges, obligations, and judgments, whether arising by
statute, in express or implied contract or in tort, at law or in equity, or under any theory of
liability that were or could have been asserted in the Litigation.
2.3
Agreement means this Settlement Agreement, including any and all exhibits,
assignments, contracts, and all other documents necessary to consummate this settlement.
2.4
Grant means the November 5, 1984 Right-of-Way Grant that affects a portion
of the Southeast Quarter of Section 29, Township 3 North, Range 68 West, 6th P.M. in Weld
County, Colorado, to which Kerr-McGee and The City are successor parties. A copy of the
Infrastructure Permit means the permit granted by The City concurrently with
this Agreement, under section 13.04.300 of the Longmont Municipal Code, in response to KerrMcGees January 30, 2015 Infrastructure Permit Application.
RECITALS
3.1
As the result of a dispute between the Parties concerning the Grant, Kerr-McGee
commenced the Litigation by filing its complaint against The City in the District Court of Weld
County, Colorado on September 22, 2014.
judgment that it was entitled to use the Grant according to its terms and to quiet title to the Grant
on that basis.
3.2
On November 14, 2014, The City filed its answer in the Litigation, specifically
denying all of Kerr-McGees claims, and alleging counterclaims against Kerr-McGee for a
declaration by the Court that the Grant had terminated and that The City would be entitled to
compensation for any further use of the Grant.
3.3
specifically denying that the City was entitled to any relief under them.
3.4
The Parties have now settled all of their disputes concerning, arising out of, or
relating to the Litigation and the Grant on the terms described in this Agreement.
IN CONSIDERATION of the provisions contained in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
4.
Agreement, the Parties have settled and compromised all of their Claims, and agree and covenant
to the following:
4.1
Through this Agreement Kerr-McGee and The City intend to finally and fully
Panhandle Eastern Pipe Line Company, the original Grantee, and The City is the successor to
James P. Hartman, the original Grantor and owner of the affected property. The Grant has no
termination date, but can expire pursuant to its own terms. Kerr-McGees continued use of the
Grant is subject to the terms of the Grant, this Agreement, and the Infrastructure Permit, which is
currently limited by the City charter to a 20-year term.
McGee have an infrastructure permit as a prerequisite for the operation of the Grant shall survive
any termination of this Agreement, and cannot be avoided, cancelled, rescinded, discharged, or
otherwise voided or left unperformed for any reason. At the expiration of 20 years from the date
of the Infrastructure Permit, and thereafter at the expirations of any renewed permits, KerrMcGee may request that The City renew the Infrastructure Permit. This request shall be made
within a reasonable time, but in any case no less than six months prior to the expiration of the
Infrastructure Permit, and shall include an offer of fair market value compensation for the
additional term of access to the property affected by the Grant. At that time, The City shall
review Kerr-McGees compliance with the terms and conditions of the Grant, this Agreement,
and the Infrastructure Permit.
conditions of the Grant during the term of the existing permit, or has materially breached this
Agreement or the Infrastructure Permit, the Infrastructure Permit shall be renewed, provided that
the Parties have agreed to the fair market value compensation. Any renewal shall be subject to
and consistent with the City charter and Code then in effect, including provisions affecting the
period and conditions for an Infrastructure Permit; provided, however, that the Infrastructure
Permit shall be renewed for the maximum period allowed by the City charter and Code
applicable at that time if less than or equal to 20 years. The City does not bind itself to renew the
Infrastructure Permit, but shall comply with the terms of this Agreement and shall not otherwise
unreasonably refuse to renew the Infrastructure Permit.
4.3
The renewal shall be subject to the terms and conditions of the Grant, except as
modified or amended by this Agreement and the Infrastructure Permit. The Infrastructure Permit
shall incorporate the terms of the Grant, which provides for a right-of-way no more than fifty
(50) feet wide containing no more than three (3) pipelines. Any future infrastructure permit shall
incorporate all terms in the Infrastructure Permit that limit or condition the operation of the
Grant. In the event of a conflict between this Agreement and either the Grant or an Infrastructure
Permit, the terms of this Agreement shall control.
4.4
Within ten (10) business days following Kerr-McGees receipt of The Citys
signed approval of the Infrastructure Permit, Kerr-McGee shall pay The City the amount
described in Section 4.6 of this Agreement, and the Parties shall sign and cause to be filed a
Joint Motion to Voluntarily Dismiss Plaintiff Kerr-McGee Gathering LLCs Claims and
Defendant City of Longmont, Colorado Counterclaims in a form substantially similar to that
attached hereto as Exhibit 1.
4.5
Promptly after the documents described in Section 4.4 herein have been signed,
the Parties shall record a Memorandum of Agreement in the form attached hereto as Exhibit 2
in the records of the Clerk and Recorder of Weld County, Colorado.
4.6
Within ten (10) business days following Kerr-McGees receipt of The Citys
approval of the Infrastructure Permit, Kerr-McGee shall pay a total of $142,530.33 to The City,
calculated as follows:
a.
$43,245.30 for the total length of the pipelines on City property (1,441.51
feet x three pipelines x $10/lineal foot = $43,245.30). The amount paid to
The City for the length of the pipelines shall be adjusted based on the as
installed length of the pipelines;
b.
$66,185.03 for 1.655 acres used for the initial twenty (20) year period of
the Infrastructure Permit (1.655 acres x $40,000.00/acre = $66,185.03;
c.
d.
Kerr-McGees payment to The City pursuant to this Section 4.6 is a compromise amount
made for the purpose of setting the Litigation and resolving the Parties Claims. The Parties
agree that the amount of this payment shall have no bearing on what is considered fair market
value compensation for any future renewals of the Infrastructure Permit.
4.7
Any dispute arising under this Agreement relating solely to the fair market value
of any additional term during which Kerr-McGee is allowed access to and use of the property
affected by the Grant (Arbitrable Dispute) shall be referred to and resolved by binding
arbitration in Denver, Colorado by one arbitrator, in accordance with the rules and procedures of
the Judicial Arbiter Group (JAG). Other disputes will be arbitrated only if the parties agree to
do so in a separate writing. If there is any inconsistency between this provision and any statutes
or rules, this provision shall control. Arbitration shall be initiated within the applicable time
limits set forth in this section and not thereafter or, if no time limit is given, within the time
period allowed by the applicable statute of limitations, by one party (Claimant) giving written
notice to the other party (Respondent) and to JAG, that the Claimant elects to refer the
Arbitrable Dispute to arbitration. The parties shall jointly choose the arbitrator, but if they
cannot agree on an arbitrator within thirty (30) days after the Claimants notice to the
Respondent, such arbitrator shall be appointed by JAG. Claimant and Respondent shall bear
their own attorneys fees and costs and shall each pay one-half of the compensation and expenses
of the arbitrator. The arbitrator must be a neutral party who has never been an officer, director,
contractor, employee or agent of the Parties or any of their affiliates, must have not less than ten
(10) years experience practicing law relating to oil and gas or land appraisal, and must have a
formal legal education in his or her area of expertise. The Parties shall have limited rights of
discovery as determined by agreement of the Parties or the arbitrator. Time shall be of the
essence, and the hearing shall be commenced within thirty (30) days after the selection of the
arbitrator. The Parties and the arbitrator shall proceed diligently and in good faith in order that
the arbitral decision shall be made as promptly as possible, but no later than forty-five (45) days
following the close of any hearing. The interpretation, construction and effect of this agreement
to arbitrate shall be governed by the Laws of Colorado. In all arbitration proceedings the Laws
of Colorado shall be applied, without regard to any conflicts of law or principles thereof. All
statutes of limitation and of repose that would otherwise be applicable shall apply to any
arbitration proceeding. The arbitrator shall not have the authority to grant or award damages.
His or her sole role shall be to determine the fair market value of any additional term during
which Kerr-McGee is allowed access to and use of the property affected by the Grant. The fair
market value shall not be reduced due to the fact that the pipelines and related equipment may
have already been installed on the affected property.
4.8
The pipelines allowed by the Infrastructure Permit will transport only oil, gas,
associated hydrocarbons, and water. Kerr-McGee agrees to allow The City or its agents, lessees,
or other designees to transport any oil, gas, associated hydrocarbons, and water from minerals or
property owned by The City in Kerr-McGees pipeline system on commercially reasonable
terms, and in exchange for fair market value compensation for the use of its pipeline system.
4.9
Kerr-McGee shall provide The City with information describing its current
guidelines for the installation, operation, maintenance, inspection, testing and upgrades to or
repairs of its pipeline system, and its current health, safety and environmental guidelines for the
pipeline system. Kerr-McGee agrees to follow such guidelines, and it shall provide a copy of all
inspection, testing and maintenance reports for the pipelines covered by the Infrastructure Permit
to The City upon request.
4.10
Kerr-McGee shall immediately notify The City in the event of any threatened or
actual leak, rupture, or failure of any kind within the pipelines or the areas covered by the
Infrastructure Permit and shall immediately shut down and repair any pipeline that has ruptured,
failed, is leaking, or where rupture, failure or leakage is imminent. Kerr-McGee shall commence
clean-up operations within twenty-four (24) hours after it becomes aware of any pipeline leak,
rupture or other pollution created by its operations, and shall complete said cleanup to achieve
actual or substantially pre-contamination conditions, and in conformity with all federal, state,
and local contamination standards with diligence and without unreasonable interruption.
4.11
Kerr-McGee agrees to notify The City in writing at the address shown below at
least ten (10) days prior to any hearing concerning the pipelines approved in the Infrastructure
Permit or Kerr-McGees uses under the Infrastructure Permit before the Colorado Public Utilities
Commission or any other agency, board or authority with jurisdiction over such matters.
4.12
All of Kerr-McGees operations, obligations and uses under the Grant, this
Agreement, and the Infrastructure Permit, whether express or implied, shall be subject to all
applicable and valid laws, rules, regulations, and orders of The City and any other governmental
authority having jurisdiction. Kerr-McGee also agrees to comply with all valid and applicable
city, local, state, and federal laws and regulations governing its operations.
4.13
Kerr-McGee shall not have the right to construct, maintain, or operate any facility
other than those allowed by the Grant, this Agreement, or the Infrastructure Permit.
4.14
Kerr-McGee shall be responsible for and shall indemnify and hold The City
harmless from any losses, claims, damages, demands, suits, causes of action, fines, penalties,
expenses and liabilities, including without limitation attorneys fees and other costs associated
therewith, caused by or resulting from Kerr-McGees ownership, operations, or activities under
the Grant, this Agreement, and the Infrastructure Permit, no matter when or by whom asserted
(collectively referred to as Claims). Kerr-McGee shall defend, indemnify, and hold The City,
its City Council and City Council members, and The Citys officers, employees, agents,
contractors, attorneys, managers, and directors harmless from all Claims. Kerr-McGee shall also
indemnify and hold The City harmless for any Claims asserted by governmental bodies or other
third parties for pollution or environmental damage of any kind, caused by or resulting from
Kerr-McGees ownership, operations, or activities under the Grant, this Agreement, and the
Infrastructure Permit, and for all clean-up and remediation costs, fines and penalties associated
therewith, including but not limited to any claims arising from Environmental Laws or relating to
asbestos or naturally occurring radioactive material. Environmental Laws shall mean any
laws, regulations, rules, ordinances, or order of any governmental authorities, with respect to
pollution or the protection of the environment, including but not limited to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6109 et
seq.), the Clean Water Act (33 U.S.C. 466 et seq.), the Safe Drinking Water Act (14 U.S.C.
1401-1450), the Hazardous Material Transportation Act (49 U.S.C. 1801 et seq.), the Clean
Air Act and the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), or other similar laws.
4.15
Infrastructure Permit area after installation of the pipelines, except those provided for therein or
to which The City grants consent in writing prior to their installation.
4.16
Kerr-McGee shall provide no less than thirty (30) days advanced written notice of
any work that would affect the surface of the lands that are subject to the Grant and the
Infrastructure Permit. Kerr-McGee shall create only the minimum amount of surface disturbance
necessary for the construction of facilities allowed by the Grant and the Infrastructure Permit.
Topsoil shall be conserved during excavation, stockpiled, and reused as cover on disturbed areas
to facilitate regrowth of vegetation. Kerr-McGee shall promptly reclaim, reseed, and replant any
disturbed areas to The Citys reasonable satisfaction and in compliance with all City regulations,
using vegetation similar to the vegetation on contiguous lands unless otherwise directed by The
City. Kerr-McGee agrees to use its best efforts to complete the installation of any pipelines and
other facilities allowed by the Grant and the Infrastructure Permit, and to reclaim the surface of
any disturbed lands, by June __, 2015. Kerr-McGee shall provide a reclamation bond in a form
and amount acceptable to The City to assure that all required reclamation is completed.
4.17
Kerr-McGee and its contractors and agents shall access the area covered by the
Infrastructure Permit only from Weld County Road 5, and shall obtain any ditch crossing
approvals needed and provide copies of all such approvals to The City.
4.18
minimize crop loss to The City and its tenants and agents. Kerr-McGee shall pay reasonable
damages for crop loss on account of its operations to The City for a period of at least two (2)
years after the completion of any construction or maintenance, and for a longer period if
disturbed crops are not fully restored during those two years.
4.19
The Parties shall, from time to time and upon reasonable request, execute,
The Director or General Manager of The Citys Public Works and Natural
Resources Department may require Kerr-McGee to remove or relocate its pipelines approved in
the Infrastructure Permit at Kerr-McGees expense upon 90 days written notice, for the
following purposes:
a.
b.
c.
d.
e.
f.
4.21
Works and Natural Resources Department may require Kerr-McGee, at Kerr-McGees expense,
to relocate the infrastructure without providing advance written notice.
4.22
reasonable time from the date of notification, but no later than three working days before The
City intends to commence its work. In case of emergencies, Kerr-McGee shall, at its expense,
immediately remove or relocate the infrastructure as the Director or General Manager of The
Citys Public Works and Natural Resources Department may require. If Kerr-McGee fails to
remove or relocate the infrastructure, the city may perform such work at Kerr-McGees expense.
Kerr-McGee shall then reimburse the city for all expenses within 30 days after receipt of a
written invoice.
4.23
Under the circumstances described in the foregoing Sections 4.20 through 4.22,
the Director or General Manager of The Citys Public Works and Natural Resources Department
may only require that Kerr-McGee relocate the pipelines permitted under the Infrastructure
Permit to a different depth or to a different location within the property affected by the Grant,
and may not require Kerr-McGee to relocate the pipelines to another property entirely.
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5.
Kerr-McGee hereby releases The City and its City Council and all City Council
Members, and all City employees, managers, representatives, agents, attorneys, consultants,
successors and assigns from each and all Claims, whether known or unknown, and whether
foreseen or unforeseen, which Kerr-McGee has ever had, or now has, against The City and The
Citys Council and all City Council Members, and all City employees, managers, representatives,
agents, attorneys, consultants, successors and assigns, arising from or related to the events and
transactions that are the subject matter of the Litigation.
5.2
Each Party hereby covenants and agrees not to sue the other Party with respect to
any Claim released in this Agreement. Notwithstanding the foregoing sentence, the Parties may
sue to enforce the terms of this Agreement.
5.4
well as any valid provisions of the Longmont Municipal Code that may apply to Kerr-McGees
operations under the Infrastructure Permit. Upon completion of the activities authorized by the
Infrastructure Permit, Kerr-McGee shall provide The City with an as built schematic of the
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installed pipelines and final configuration of the Infrastructure Permit. Upon build out of any
pipeline or related facility, Kerr-McGee shall provide physical location markers for all such
pipelines and facilities. The original Infrastructure Permit shall be retained by The City and a
copy shall be provided to Kerr-McGee.
6.
CONSIDERATION ACKNOWLEDGED
6.1
The Parties acknowledge that the provisions of this Agreement provide mutually
sufficient consideration for any and all rights, duties, or obligations created in the provisions of
this Agreement. The Parties released under this Agreement do not admit liability of any sort, and
the Parties have made no agreement or promise to do any act or thing not set forth in this
Agreement. The Parties understand that this Agreement is made as a compromise to avoid the
expense and uncertainty of litigation, and to terminate all controversies and claims for injuries,
damages, costs, or losses because of any cause of action that could have been asserted by either
Party against the other.
7.
The Parties represent that they have carefully read and fully understand this
Agreement, that they now execute this Agreement voluntarily and with understanding of its force
and effect, and that they execute this Agreement without reliance upon custom, course of
dealing, or other agreements with each other or with third parties.
7.2
The Parties further represent that they have had an opportunity and have the
means to have had this Agreement reviewed by legal counsel of their own choosing, and that
they have in fact had their respective legal counsel review the Agreement on their behalf.
7.3
The Parties further represent that they have not assigned, conveyed, or
encumbered in any way, or agreed to assign, convey, or encumber in any way, any of their
13
interest in the Grant, this Agreement, the Infrastructure Permit or in any of the Claims released
herein, or any of the interests being conveyed under the terms of the Agreement.
7.4
Each Party represents that it has obtained any consent, approval, authorization, or
order of any court, governmental authority, person, or entity that is required for the execution,
delivery, and performance of this Agreement.
7.5
Each Party represents that it has the power and authority to enter into this
Agreement, that all documents delivered pursuant to same, to which it is a party, are valid,
binding, and enforceable upon it, and that the person or entity acting on behalf of the Party in
executing this Agreement has the authority to do so.
8.
This Agreement shall be binding upon and shall inure to the benefit of the Parties
and their past and present affiliated companies, parent companies, parent corporations, sister
companies, sister corporations, subsidiaries, shareholders, partners, owners, past and present
attorneys, officers, directors, employees, agents, consultants, representatives, successors, heirs,
and assigns.
9.
ENTIRE AGREEMENT
9.1
This Agreement represents the entire agreement between the Parties with respect
to the matters referred to herein, and supersedes all prior agreements, negotiations, or statements
with respect to the matters referred to herein, and shall not be modified or affected by any offer,
proposal, statement, or representation, either oral or written, heretofore made by or for either
Party in connection with the negotiation of the terms hereof. This Agreement may not be
modified except in writing executed by both Parties.
14
9.2
be invalid, void, or unenforceable, the remaining provisions shall nevertheless survive and
continue in full force and effect without being impaired or invalidated in any way.
10.
EVENT OF BREACH
10.1
Any Party who asserts that this Agreement has been violated or breached shall
inform the other Party of the specifics of any breach, after which the non-notifying Party shall
have thirty (30) days to remedy the alleged breach or violation.
10.2
any provision of this Agreement, the prevailing Party shall be entitled to its reasonable and
necessary attorneys fees.
10.3
The City may revoke the Infrastructure Permit for any material breach of this
Agreement by Kerr-McGee.
11.
GOVERNING LAW
11.1
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado, irrespective of Colorados choice of law provisions. Any litigation
arising out of or relating to this Agreement shall be brought and maintained exclusively in the
courts of Weld County, Colorado.
12.
sent to:
City of Longmont
408 Third Avenue
Longmont, CO 80501
and
15
COUNTERPARTS
13.1
which shall be deemed an original for all purposes, and all of which shall constitute, collectively,
one agreement.
16
IN WITNESS WHEREOF, the Parties have signed and acknowledged this Agreement
below:
KERR-McGEE GATHERING LLC
By:
Name:
Title:
Date:
Date:
By:
Name: Eugene Mei
Title: Longmont City Attorney
Date:
17
Exhibit 1
Defendant:
CITY OF LONGMONT,
COLORADO.
___________________________________________
Eugene Mei, Esq. City Attorney
Attorney Reg. No.: 33442
E-Mail:
eugene.mei@ci.longmont.co.us
Daniel E. Kramer, Assistant City Attorney
Attorney Reg. No.: 43752
E-Mail:
dan.kramer@ci.longmont.co.us
City of Longmont
Civic Center Complex
408 3rd Avenue
Longmont, CO 80501
Telephone:
303-651-8616
Facsimile:
303-651-8914
Case No.:
2014 CV 30895
Division:
Plaintiff Kerr McGee Gathering LLC (Kerr-McGee) and Defendant City of Longmont,
Colorado (City of Longmont) have entered into an agreement settling and compromising KerrMcGees claims against the City of Longmont and the City of Longmonts claims against KerrMcGee. The parties therefore file this Joint Motion and ask this Court to dismiss Kerr-McGees
claims against the City of Longmont with prejudice pursuant to Colo. R. Civ. P. 41(a)(2), and to
dismiss the City of Longmonts counterclaims against Kerr-McGee with prejudice pursuant to
Colo. R. Civ. P. 41(a)(2). The parties respectfully request that this Court enter an Order in the
form attached hereto, and dismiss all claims and counterclaims asserted in this case with prejudice.
Each party shall bear its own costs and attorneys fees.
DATED this _____ day of March, 2015.
Respectfully submitted,
KERR-MCGEE GATHERING LLC
DAVIS GRAHAM & STUBBS LLP
By:
_____________________________
Phillip D. Barber
ATTORNEYS FOR THE DEFENDANT
This document was filed electronically pursuant to C.R.C.P. 1-26. The original signed document
is on file at the offices of Phillip D. Barber, P.C.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing JOINT MOTION
TO VOLUNTARILY DISMISS PLAINTIFF KERR-MCGEE GATHERING LLCS
CLAIMS AND DEFENDANT CITY OF LONGMONT, COLORADOS
COUNTERCLAIMS, was served this _____ day of March, 2015, by ICCES File and Serve on
the following:
Michael J. Gallagher, Esq.
Jonathan W. Rauchway, Esq.
John M. Bowlin, Esq.
Davis Graham & Stubbs, LLP
1550-17th Street, Ste. 500
Denver, CO 80202
______________________________________
KERR-MCGEE GATHERING
LLC, a Colorado limited liability
company
CITY OF LONGMONT,
COLORADO.
___________________________________________
Defendant:
Case No.:
2014 CV 30895
Division:
The Court, having considered the Joint Motion to Voluntarily Dismiss Plaintiff KerrMcGee Gathering LLCs Claims and Defendant City of Longmont, Colorado, Counterclaims, is of
the opinion that such motion should be GRANTED.
It is therefore ORDERED that this action, including all claims and counterclaims, is
DISMISSED with prejudice, and each party shall bear its own costs and attorneys fees.
DATED this _____ day of March, 2015.
_______________________________________
DISTRICT COURT JUDGE
Exhibit 2
2.
The Parties have entered into a Settlement Agreement providing for the resolution of their
dispute and for the continuation of that certain November 5, 1984 Right-of-Way Grant that
is recorded at Reception 01988629 of the records of the Clerk and Recorder of Weld
County, Colorado, which affects a portion of the Southeast Quarter of Section 29, Township
3 North, Range 68 West, 6th P.M., Weld County, Colorado (Grant). The Parties have
agreed that use of the Grant may continue for an initial period of twenty (20) years from
__________, in accordance with and subject to the terms of the Grant, the Settlement
Agreement, and Kerr-McGees Infrastructure Permit on file with The City.
3.
Among other things, the Settlement Agreement provides terms and conditions relating to
continuation and termination of the use of the rights conferred by the Grant. Should any
person or firm desire additional information regarding the Settlement Agreement or wish to
inspect a copy of the Settlement Agreement, said person or firm should contact The City.
4.
In the event of termination or expiration of the Grant, the Settlement Agreement, or the
Infrastructure Permit, The City shall file of record a release and termination on behalf of all
parties concerned.
5.
It is understood and agreed by the Parties that if any part, term, or provision of this
Memorandum is held by a court exercising valid jurisdiction to be illegal or in conflict with
any law of the State of Colorado, the validity of the remaining portions or provisions shall
not be affected, and the rights and obligations of the Parties shall be construed and enforced
as if the Memorandum did not contain the particular part, term, or provision held to be
invalid.
6.
This Memorandum shall be binding upon and shall inure to the benefit of the Parties and to
their respective heirs, devisees, legal representatives, successors, and assigns. The failure of
one or more persons owning an interest in the Grant to execute this Memorandum shall not
1
in any manner affect the validity of the Memorandum as to those persons who have executed
this Memorandum.
7.
A party having an interest in the Grant can ratify this Memorandum by execution and
delivery of an instrument of ratification, adopting and entering into this Memorandum, and
such ratification shall have the same effect as if the ratifying party had executed this
Memorandum or a counterpart thereof. By execution or ratification of this Memorandum,
such party hereby consents to its ratification and adoption by any party who may have or
may acquire any interest in the Grant.
8.
This Memorandum may be executed or ratified in one or more counterparts and all of the
executed or ratified counterparts shall together constitute one instrument. For purposes of
recording, only one copy of this Memorandum with individual signature pages attached
thereto needs to be filed of record.
CITY OF LONGMONT, COLORADO
By:______________________________
Name:____________________________
Title:_____________________________
STATE OF COLORADO
City and County of Denver
)
)
)
STATE OF COLORADO
City and County of Denver
)
)
)
Exhibit 3
Public Works & Water Utilities
Transportation Engineering and Construction Inspection
INFRASTRUCTURE PERMIT
APPLICATION NO. 15-15
Term Restriction:
This permit will expire twenty years from the date of issuance. The applicant must reapply to the City of
Longmont for a right to use the public right of way beyond this date.
(City Charter- Section 12.4)
Applicant Infonnation:
Name of Applicant:
Name of Contact:
Trevor Payne
Business Address:
Business Phone:
This Infrastructure Permit is granted concurrently with the execution of the Settlement Agreement
between the City of Longmont and the Applicant (''Settlement Agreement'') and is subject to its terms.
This Infrastructure Permit hereby incorporates the terms of the Right-of-Way Grant, to which the City and
the Applicant are successor parties, and which is recorded at Reception No. 01988629 of the records of the
Clerk and Recorder of Weld County, Colorado (''Grant''). Specifically, the right-of-way on which
infrastructure is permitted shall not exceed fifty feet in width and shall contain no more than three
pipelines total.
Any future infrastructure permit shall be subject to the terms of the Settlement Agreement, and shall
incorporate all terms herein that limit or condition the operation of the Grant.
The City may revoke this Infrastructure Permit for any material breach of the Settlement Agreement by the
Applicant.
Location of Improvements
1/4
Description of Improvements
Installation of a 20" HOPE water pipeline, 20" steel gas pipeline and 12" steel oil pipeline
Permit Requirements:
The owner and contractor shall comply with all laws, regulations, codes and ordinances applicable to the
current City of Longmont Design Standards and Construction Specifications. General requirements as listed
under section 100, specifically sub-section 112.00 Trench Backfill & Compaction requirements (see
attached). In addition to requirements listed in section 100, the applicant will have on site and available
additional top soil to backfill any trench settlement that may occur over the warranty period.
Reseeding restoration within construction I easement areas (see attached native seed mix)
Required Documents to be submitted with Application:
Construction Plan:
1-800-922-1987
(303) 651-8468
(303) 651-8416
Insurance Reauirements: Certificate of Liability of Insurance, listing the City of Longmont as additionally
insured.
Work In Right of War Permit Required For Construction: Contractor must obtain a Work in the
Right of Way Permit prior to start of construction. Permit fees will be charged in accordance
with City of Longmont Municipal Code chapter 13.04.
Total $ ____,T-=8=-D-
APPUCANT:
PERMIT APPROVED:
DATE:
P.O.B.
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Al.UII. CAP
SW1/4 SECTION 28
T3N R68W 6TH PM
PI.S 18982
SURVEY TIE TO P.O.B.
s 89'10'54" w114.04')
L1
CITY OF LONGMONT
LOT 8 AMD RE -459
60' R.O.W.
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SE1/4 SECTION 29
T3N R68W 6TH PM
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COI/SUlUCUON NOTfS
I) PIPWNES CROSSII/C Tilt Wfl.D CCUifTY ROAD 5 R.O.If.
(SHOWN HfREON I<S CCNTfRUNC 'LJ') AI4Y Bf CONSTilUCTfD
USING DIRCGnONAL DRILl/BORING INSTALLATION IIUHODS. ALL
Ol'HER CONsrRUC110N WIU BE OPfN rRfNCH CONSrRUCTION.
2) TOPSOIL WIU BE RCIIOVCD TO A DEPI'H OF 8' AND srocKPILCD
ON SITE: DURING CONsrRUCTION. TOPSOIL WIU Sf REPLACED
AFTfR CONSrRUCTION AND ARAS OUTSIDf OF AGRICULTURAL
PRODUCTION AREAS 11'/U. Bf RESE:fOCD ACCOROINC TO
APPLICABLE RCGULATIONS.
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LI=S 45'11'09"
L2=5 00'11'09"
LJ=N 89'00'55"
BJ.52'
IJ02.99'
55.00'
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LOT UNE
2Sl28
32133
2" AUJII. CAP
PLS IU.G1BI.
(SURVEY TIE TO P.O.T.
N 00'11'13" W 1289.06')
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200'
400'
be-n-.
of llf.ililin ond fOifign pipelines ..,. doltmliled from wisible Slltfoce Mlena.
locoliotls if s1>oorn moy not be O<CVIDir
01/ocr ufi;lies moy aisl ond 0111 to be 6dd -ed by olhets priM to ezcowliM
2.) lltisdoa.met!! is nolo land"""'7plot "'~ """'7plot. ~is nol to
f(J( the . . , _ , of ""1 land
IJcN.rldoty,-. fenoe, ~ tK olhet fulllte ~ inls.
~) M cftoed.iono, d'.rlonca ond <fm<nsiont sl>oorn heteon.,. bosod on_,.,.,., fnm the "Cooonndo caonfonofe JTSiem of 198.! north
, _ (Nikle S2 of lille J8 C.R.S.) - - using R.r.K. G.P.S. ledoniqueo ond/01 the 0W1o IW!ioning User Smi:e off<ml by the
N.G.s. Ctltnbined Fod(J( (Cf) 0.99972122; 1/Cf I.OIIII2788S7
4.) NOTICC: Aca>rdinf to Colonldo ,.. fOU must ""1 legal lion bosod ..,.. D1tf dtfrd in this .....,. ilhin lhtee ,..,s of!N
,.. r.m - - d e l e d . t.no ...,,,.,.,.,_ - - Dltfd<lrd in lhis"""'7be _ , _ , _ , . , , . . , f r o m
"'t.) "'Locofioos
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of
5.) litis &llillit,_wby Pad A_,, PI.S J~ lot ond011 beho/1 ofktiom, tie. If' 1 - St.. 5<N 7,Bliglljon, CD
806111.
Rf:VISED: 01/J0/2015
Acklam. Inc.
195 Telluride Sl .. Sune 7
Brtgh1on CO , 80601
DATE: fU/OJ/2014
JOB No.: IJ805
City of Longmont
3N-68W
Cq:>yri!Jlt 2011 Weld County Gc:M!mrrent All rights resaved. Ttu May 29 2014 07:42:29 AM
AFE# 2087655.PCE
Inspection Date:
Install
Receiving Waters:
Various Bore Locations and Ditches
Site will be Re-Graded &
ISe1adEtd Where Appropriate
Construction Activity
Is Completed
Area of disturbance
defined by BMP
placement. Construction
boundary approx. 10'
outside of BMP
placement.
Pipe
StockPile
PcMtoo-let
~Separator
c::::::J CUlvert
c::::::J
--
Aflr
Spray on
Adlloslvo
Wollhead
Incomplete
Gathering Une
Dirt Road
Paved Road
Topographic
Slope
er-Mlltch
Water
Sump
cattleguard
- 181m
._
Hay Bale
Benn
Windrow
Straw
wattle
111111111
Slit Fence
Equipment
Storage
wattle
NOT TO
sc~
Engineer, cleanup must be performed within 600 linear feet of pipe installation. NO TRENCH
SHALL BE LEFT OPEN OVERNIGHT WITHOUT PROPER PROTECTION AND APPROVAL
OF THE ENGINEER. These requirements apply for all mains and service lines. Backfilling of
trenches shall comply with these specifications, and with applicable design and soils reports.
112.05 BACKFILL MATERIAL
All backfill material shall be free from debris, cinders, ashes, refuse, vegetable or organic
material, boulders, rocks or stones, frozen material, broken bituminous or concrete materials, or
other material that in the opinion of the Engineer is unsuitable. Material containing stones up to
six (6) inches in their greatest dimension may be used, unless otherwise specified.
Use of rocks, stones or boulders within the allowable size limits is subject to their not interfering
with proper compaction.
Masses of moist, stiff clay and washed rock shall not be used as backfill material.
1.
When the type of backfill material is not indicated on the drawings or specified, the Contractor
may backfill with the excavated material, provided that such material consists of loam, clay,
sand, gravel, or other materials that, in the opinion of the Engineer, are suitable for backfilling. If
excavated material is indicated on the drawings or specified for backfill, and there is a deficiency
due to a rejection of part thereof, the Contractor shall furnish the required amount of sand,
gravel, or other approved material.
2.
If imported backfill is not required on the drawings, and In the opinion of the Engineer should be
used In any part of the work, the Contractor shall furnish and backfill with approved material as
directed by the Engineer. All material shall be free from frozen matter, stumps, roots, brush,
other organic matter, cinders or other corrosive material, debris, broken asphalt and concrete,
and any other material that is not suitable in the opinion of the Engineer. Trench backfill
material shall be free from any rocks or stones which are larger than six ( 6) Inches, in any
dimension. Rocks or stones which are larger than three (3) inches, in any dimension, shall not
be placed within one foot of pavement subgrade, or within one foot of the finished surface of
unpaved areas. Rocks or stones larger than two (2) Inches in diameter may not be used for
trench backfill of irrigation lines.
3.
Standard Proctor Tests (A.S.T.M. D698): The Contractor shall provide Standard Proctor
results for compaction testing. A sufficient number of Proctor tests shall be taken so as to,
in the opinion of the Engineer, adequately represent all types of soil encountered along the
trench. Said tests are intended only to aid the verification of the quality of the work.
Acceptable test resuHs shall not relieve the Contractor from correction or repairing of any
substandard work before or during the warranty period.
2.
Field Density Tests: The Contractor shall provide field compaction tests conforming to
A.S.T.M. D2922 and 03017 every one (1) foot of trench depth for every two hundred (200)
lineal feet of pipe installation unless otherwise specified by the Engineer. The Contractor
shall provide one field compaction test per every one hundred (100) lineal feet of curbwalk
and shall demonstrate that the subgrade will pass a wheel test. The Contractor shall
provide two field compaction tests for each water and sewer service line. For the sewer
service, the tests shall be at varying depths as required by the Inspector and located ten
(10) feet from the end of the service line. For the water service, the test shall be taken
when the fill is at a level of two (2) feet below the final grade; one test shall be located five
(5) feet from the water main and one test shall be located two feet from the curb stop
(between the curb stop and the sidewalk. The Contractor may be required to dig up
portions of the trench to afford access for compaction tests below the top surface of the
backfill material.
Unless otherwise required on the plans, or by the Engineer to prevent settlement or damage to
existing or proposed public or private improvements, trench backfill compaction shall be to the
following minimum densities indicated below:
COMPACTION ZONES
All compaction within the right-of-way shall be 95%.
All driveway areas, water and sewer service lines shall be compacted at 95%.
General - 37 - Effective July 1, 2007
All construction activity shall be responsible for the preservation and protection of the
stormwater collection systems and other natural and developed drainage ways, which may be
affected by the construction.
113.02 DEVELOPMENT PROCESS
Any construction activity that disturbs one or more acres of land and any construction activity
that disturbs less than one acre but is part of a larger common plan of development as
determined by the City, must obtain a Public Works Development Permit from the City and a
Storm water Discharge Permit Associated with Construction Activity from the Colorado
Department of Public Health and Environment (CDPHE). The Colorado Department of Public
Health and Environment, Water Quality Control Division, can be reached at 303-692-3500
(htto:/lwiNw.cdohe.state.co.uslwg/PermitsUnitJwgcdpmt.html ).
Prior to any construction activity, applicants must have an approved SWMP which is a condition
of issuance of the Public Works Development Permit from the City, and a Storm water Permit
Associated with Construction Activities application from the Colorado Department of Public
Health and Environment (CDPHE).
113.03 STORMWATER MANAGEMENT PLAN- DESIGN CRITERIA
The City shall evaluate the adequacy and appropriateness of the proposed BMP's based on
their fulfillment of the previously stated guidelines and compliance with the Best Management
Practices (BMP's) included in the Urban Storm Drainage Criteria Manual (USDCM), Volume 3,
and CDOT erosion control manual:
1. The contents of the Storm water Management Plan shall be in accordance with the
requirements of the Colorado Department of Public Health and Environment. (see
appendix)
2. The design shall minimize the overall land disturbance, and maintain stormwater quality in a
condition similar to historic levels.
3. Design construction phasing, to minimize soil disturbance and avoid erosion. Effective
phasing should be used to minimize soil exposure between overlot grading and final grading
or installation of improvements.
4. Manage stormwater flows to minimize erosion and sediment movement. This objective
would include diverting concentrated flows from disturbed slopes, minimizing the length and
steepness of disturbed slopes, keeping runoff velocities low, and preparing or reinforcing
drainage ways and outlets to receive runoff flows.
5. Do not allow increased sediment movement off of the site. All sediment disturbed on site
should be contained and either re-deposited in a more stable location, or removed from the
site to the Maximum Extent Practicable.
113.04 CONSTRUCTION ACTIVITIES REQUIREMENTS
The Contractor shall satisfy all environmental quality standards imposed by law and take
reasonable steps to minimize the environmental impact of the work. In compliance with
applicable City, state and federal law:
General - 39 - Effective July 1, 2007
The native seed mix for the restoration of the Kerr McGee pipeline easement.
For native areas seed mix:
20% Switchgrass
20% Big Bluestem
20% Yellow lndiangrass
10% Alkali Sacaton
10% Western Wheatgrass
10% Streambank Wheatgrass
10% Slender Wheatgrass
20 lbs. pure live seed per acre, drilled or twice as many lbs. per acre if hand
broad casted