HomeMy WebLinkAbout20131831.tiffRESOLUTION
RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING
COLLATERAL FOR IMPROVEMENTS FOR USE BY SPECIAL REVIEW PERMIT
#1709, AND AUTHORIZE CHAIR TO SIGN - SUNCOR ENERGY (USA) PIPELINE
COMPANY
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, on December 16, 2009, the Weld County Board of Commissioners
approved Use by Special Review Permit #1709 for Suncor Energy (USA) Pipeline Company,
Attn: Terrance Larson, 1715 Fleischli Parkway, Cheyenne, Wyoming 82001, for a Mineral
Resource Development Facilitiy, including an Oil and Gas Support and Service Facility (crude
oil truck unloading facility) in the A (Agricultural) Zone District, on the following described real
estate, to -wit:
Lot A of Amended Recorded Exemption #2918;
being part of the NW1/4 of Section 20, Township 2
North, Range 66 West of 6th P.M., Weld County,
Colorado
WHEREAS, pursuant to certain Conditions of Approval, the Board has been presented
with an Improvements Agreement According to Policy Regarding Collateral for Improvements
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Suncor Energy (USA) Pipeline Company, 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 Improvements Agreement According to Policy Regarding
Collateral for Improvements between the County of Weld, State of Colorado, by and through the
Board of County Commissioners of Weld County, and Suncor Energy (USA) Pipeline Company,
be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
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Steve Moreno, Clerk and Recorder, Weld County, CO
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2013-1831
PL2029
IMPROVEMENTS AGREEMENT - SUNCOR ENERGY (USA) PIPELINE COMPANY
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 15th day of July, A.D., 2013.
BOARD OF OUNTY COMMISSIONERS
WELD UN Y, COLORADO
ATTEST: enttew
Weld County Clerk to the Board
BY:
Deputy CI
AP
Attorney
Barbara Kirknieyer
Date of signature: 'JUL 3 0 2013
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Steve Moreno, Clerk and Recorder, Weld County, CO
1111
ilfiam F. Garcia, Chair
ougl
elu✓
cher, Pro-Tem
Sean P. Conway
A.a.x,
2013-1831
PL2029
IMPROVEMENTS AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
SUNCOR ENERGY - USR-1709
THIS AGREEMENT, made and entered into this day of , 2013,
by and between the County of Weld, State of Colorado, acting through its Board of County
Commissioners, hereinafter called "County," and Suncor Energy (U.S.A.) Pipeline Company, a
Colorado corporation, hereinafter called "Applicant." County and Applicant may each be
referred to from time to time in this Agreement as a "party" or together as the "parties."
WITNESSETH:
WHEREAS, Applicant is the lessee of the following described property in the County of
Weld, Colorado:
Lot A of AmRE-2918 being Part of the NW4 of Section 20, T2N,
R66W of the 6th P.M., Weld County, CO
hereinafter referred to as "the Property"; and
WHEREAS, County has approved Use by Special Review Permit No. USR-1709 (the
"Permit") for an Oil and Gas Support Facility (Crude Oil Truck Unloading Facility) (the
"Project") on the Property; and
WHEREAS, Applicant acknowledges that the Permit is conditional upon Applicant's
construction of the On -Site Improvements and Off -Site Improvements and payment of a
Proportionate Share (as each is hereinafter defined) of the cost of the Off -Site Improvements,
both of which are described in an Exhibit A to this Agreement, which is attached hereto and
made a part hereof, and which, if needed, will be updated by Applicant for both the On -Site and
Off -Site Improvements prior to the commencement of construction; and
WHEREAS, Applicant acknowledges that the issuance of the Permit is conditional upon
Applicant's completion of the On -Site and Off -Site Improvements which are described in this
Agreement and depicted in the USR Plat map and the accepted Off -Site Construction Plans and
On -Site Construction Plans (copies of which will be provided by Applicant and attached to this
Agreement as they become available, and in any case, prior to construction and which will be
made a part hereof as Exhibits C and D, respectively; and
WHEREAS, Applicant further acknowledges that the Permit is also conditional upon
Applicant's compliance with all of the requirements and conditions set forth in the Resolution
adopted by the Weld County Board of County Commissioners on December 16, 2009, and the
"Site Specific Development Plan Use by Special Review Permit Development Standards Suncor
Energy (USA) Pipeline Company USR-1709"; and
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WHEREAS, Applicant acknowledges that it may not engage in any activity related to the
business activity of USR-1709 until all Improvements have been completed unless otherwise set
forth in this Agreement; and
WHEREAS, Applicant acknowledges that it may only commence construction of the
Project in accordance with the terms set forth in this Agreement; and
WHEREAS, the parties agree that Applicant shall be required to provide collateral and to
commence work on the "On -Site Improvements," as hereinafter defined, at the time of the
issuance of any grading or right-of-way permits for the Project; and
WHEREAS, the parties agree that Applicant shall commence work on the "Off -Site
Improvements", as hereinafter defined, and shall collateralize its Proportionate Share of the
costs of said improvements, as hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and
covenants contained herein, the parties hereto promise, covenant and agree as follows:
A. Required Off -Site Improvements
1.0 Off -Site Improvements Defined: The Off -Site Improvements shall mean the
design and installation of a concrete paved surface, including, shoulders, drainage improvements
and striping not to exceed 24 feet in width within the existing 60 foot wide right-of-way of Weld
County Road (WCR) 20 from the existing intersection of WCR 20 and U.S. Highway 85, to a
point at the eastern edge of the entry driveway from the Project onto WCR 20. Off -Site
Improvements shall not include any additional signals, acceleration or deceleration lanes at the
existing intersection of WCR 20 and U.S. Highway 85, except as may be legally required by the
Colorado Department of Transportation (hereinafter "CDOT"). However, this definition
specifically includes acceleration and deceleration lanes which will be constructed at the entry
driveway located on the Project to WCR 20, as directed by the Weld County Department of
Public Works, and the stop sign(s) required for approval of USR-1709. The parties acknowledge
that these Off -Site Improvements may be located on both Applicant's property and within the
County right-of-way.
2.0 Off -Site Improvement Costs: "Off -Site Improvement Costs" shall include all
out-of-pocket costs incurred by Applicant to design, install and construct the Off -Site
Improvements in accordance with this Agreement, including but not limited to the following:
engineering, design, surveys, utility locates, utility relocation, right-of-way clearances and
permits, soils and materials testing, coordination with oil and gas operators and facilities,
affected railroad facilities and affected irrigation facilities, traffic control, project inspection,
preparation of as -built drawings and project safety during construction. Construction of the Off -
Site Improvements shall be in accordance with all applicable regulations issued by the
Occupational Safety and Health Administration (hereinafter "OSHA"), CDOT, Colorado
Department of Public Health and Environment, (hereinafter "CDPHE") and other regulatory
agencies. Off -Site Improvement Costs incurred by Applicant to design, construct and install
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acceleration and deceleration lanes and stop sign(s) at the Project entrance shall be paid solely by
Applicant.
3.0 Construction of Off -Site Improvements: Applicant or its contractor shall
construct the Off -Site Improvements, as well as any improvements legally required by County or
CDOT. Applicant shall be responsible for funding its "Proportionate Share" of the Off -Site
Improvement Costs, as hereinafter defined. Prior to the initiation of any design or engineering
work related to the Off -Site Improvements, County must approve the final design specifications
for the Off -Site Improvements, which approval shall not be unreasonably withheld or delayed.
All engineering designs and construction plans provided by Applicant for the Off -Site
Improvements ("Off -Site Construction Plans") shall include, at a minimum, ingress/egress
entrance intersection layouts, existing and proposed grading, drainage designs if applicable,
storm drainage pipe sizings and inverts if applicable, a cross section of the road base and asphalt,
adequate turning radii, and pavement markings. In addition a geotechnical concrete pavement
design to accommodate heavy truck traffic, prepared by a Professional Engineer licensed to
practice in Colorado, is required. These Off -Site Construction Plans, when reviewed and
accepted by the Weld County Engineer, shall be a part of this Agreement, which acceptance shall
not be unreasonably withheld or delayed. All plans showing work within the State Highway
Right -Of -Way shall be reviewed and accepted by the Colorado Department of Transportation
prior to the start of construction. For all construction in the County right-of-way, prior to the
issuance of any access permit or right-of-way permit, a construction schedule giving times and
locations of all proposed improvements shall be provided to the County Department of Public
Works for review and acceptance.
4.0 Construction Trigger: If Applicant is utilizing the Property for any purpose
authorized by USR-1709, Applicant's obligation to commence design and construction of the
Off -Site Improvements (including the acceleration and deceleration lanes) shall commence at
such time as Average Daily Traffic ("ADT") counts on that segment of WCR 20 immediately
west of the Project entrance exceed 300 vehicle total vehicle trips per day ("VPD"). County
shall, on an annual basis but in any event between January 1 and July 1 of each year subsequent
to this Agreement, conduct traffic counts on WCR 20 in accordance with generally accepted
traffic engineering procedures. The traffic counts shall be conducted in such a manner that both
total traffic and traffic generated by the Project can be identified. At such time as County
determines that ADT on WCR 20 has exceeded 300 VPD (the "VPD Trigger"), County shall, on
or before August 1 of the year in which the VPD Trigger occurs, provide Applicant with a
written notice setting forth the VPD on WCR 20. Applicant shall have the right to review the
VPD figures as measured by County together with any supporting data, and in the event of a
disagreement with regard to the calculations, shall have the right to request that the County
undertake one additional count to verify the previous results. Applicant and County shall
thereafter within two weeks meet in good faith to discuss and resolve any differences. In the
event the parties are unable to resolve their differences, County's decision shall be final. On or
before December 31 of the calendar year in which the VPD Trigger occurs, or in any subsequent
calendar year in which County has budgeted sufficient funds for the following calendar year to
pay its share of the Off -Site Improvement Costs, County shall notify Applicant in writing that the
Off -Site Improvements must be undertaken in the following calendar year, provided, however,
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that Applicant shall have no obligation to commence construction of the Off -Site Improvements
until Applicant has commenced use of the Property for purposes authorized by USR-1709. (For
example, if County determines the VPD Trigger occurs in April 2014 and notifies Applicant
thereof in May 2014, and thereafter budgets sufficient funds to cover its share of the road
improvements in 2015, Applicant — or its contractor — shall complete the Off -Site Road
Improvements in 2015. Applicant shall have ninety (90) days from its receipt of County's notice
to submit Off -Site Construction Plans and cost estimates to the County for review, and following
acceptance of the Off -Site Construction Plans and updated cost estimates by County, which shall
not be unreasonably withheld or delayed, they shall be attached to this Agreement as Amended
Exhibits A, C and D respectively. Applicant shall also provide County with Collateral for the
Off -Site Road Improvements in an amount equal to the Applicant's Proportionate Share of the
estimated cost of the Off -Site Improvements as determined in Section A.5.0 of this Agreement,
and in a manner consistent with Section D.7.0 of this Agreement. The parties acknowledge that
Applicant has not yet developed Off -Site Construction Plans, and that the costs of the Off -Site
Improvements are not yet known. The parties acknowledge that County will require at least
thirty (30) days to review the construction plans.
5.0 Applicant's Proportionate Share: Applicant's Proportionate Share shall be based
upon traffic counts taken at the time of the VPD Trigger, using the ESAL (Equivalent Single
Axle Load) calculation method to determine the impacts of traffic volumes created by the
Applicant (or its contractors, clients, tenants, or customers). In order to accurately determine
percentage of Applicant's traffic, the County reserves the right to install traffic counters on the
driveway(s) of the facility. The percentage of truck traffic utilizing Applicant's Haul Route, as
hereinafter defined, which is attributable to Applicant's (or its contractors, clients, tenants, or
customers) activities, will be determined by traffic counts conducted by the County on the
Applicant's Haul Route(s) in accordance with the procedures set forth in Section A.4.0.
Applicant's Proportionate Share shall be determined by the following formula: "Traffic on Haul
Route Related to Applicant's Activities" divided by "Total Traffic on Haul Route." Truck traffic
related to Applicant's activities and to background levels shall be weighted using the ESAL
calculation method.
Applicant shall pay its Proportionate Share of the Off -Site Improvement Costs directly to
the contractor and consultants it engages to perform the Off -Site Improvements. All costs to
construct the Off -Site Improvements in excess of Applicant's Proportionate Share shall be paid
by County, together with contributions from other property owners, if any, who have traffic
impacts on Applicant's Haul Route, in accordance with the terms of any contracts for design and
construction of the Off -Site Improvements entered into by Applicant.
6.0 Construction Standards: All construction and materials for the Off -Site
Improvements shall conform to the requirements in effect at the time of the completion of the
Improvements set forth in the "Standard Specifications for Road and Bridge Construction"
provided by CDOT.
7.0 Traffic Control: Prior to any construction in the County right-of-way and as a
condition of issuance of any access permit or right-of-way permit, Applicant shall submit a
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traffic control plan for County review. During construction, signage shall be posted in
accordance with the then current version of the "Manual of Uniform Traffic Control Devices."
8.0 Off -Site Dust Control/Abatement: Dust control on WCR 20 will be warranted
when total VPD on WCR 20 exceeds 200, as determined by County in accordance with the
traffic counting procedures set forth in Section A.4.0. Once Applicant has started to utilize the
Property for any purpose authorized by USR-1709, Applicant shall be responsible for a share of
the costs incurred by County to perform dust control on the "Haul Route," as hereinafter
defined, until such time as the Off -Site Improvements are complete. Applicant's share of dust
control costs on the Haul Route shall be calculated by multiplying the costs to implement dust
control on the Haul Route by a fraction, the numerator of which is the VPD of traffic coming to
and going from the Property, and the denominator of which is the VPD of all other traffic on the
Haul Route, using the ESAL calculation method to determine the Applicant's financial
responsibility for dust control. The frequency, amount, and extent of dust control measures on
the Haul Route will be determined by site -specific conditions at the time and generally accepted
methods and techniques, as reasonably determined by County.
B. Haul Routes
1.0 Established Haul Routes:
1.1 Applicant shall take reasonable steps to require that truck traffic (including
construction traffic) exiting or entering the Property shall only use that portion of
WCR 20 which lies west of the Project entrance and east of U.S. Highway 85 (the
"Haul Route"). Applicant shall implement this provision by installing appropriate
signage at the entrance to the Project, and by including an appropriate provision in
its standard contract requiring drivers to only use the Haul Route for the purpose of
accessing the Property. In addition, if Applicant is aware of or is made aware that
trucks accessing the Project are using non -approved Haul Routes, Applicant shall
take reasonable steps to identify such operators and inform them that they may be
refused future access to the Project in the event of future violations.
2.0 CDOT Limitations: No haul truck accessing the Property may exceed applicable
CDOT required specifications for pounds per axle.
3.0 Haul Route Signage: Applicant shall install haul route signs at all exit points of
the Property which can be clearly seen by drivers leaving the facility and which clearly depict the
County approved Haul Route.
4.0 Future Changes to Haul Routes: In the event that County is requested by
Applicant or the Project operator to approve the use of an additional access, new haul route, or
an alternative haul route as a result of a change in Applicant's site activities and/or truck
circulation patterns, and if the alternative or additional access or haul route utilizes any unpaved
portion of County roads, and if County determines that dust control or paving is required on the
unpaved portion of said haul route roads, such change shall only be allowed if Applicant agrees
that dust control or paving measures to protect the public health, safety, and welfare shall be
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instituted. County will determine the proportionate share of dust control and/or paving costs to
be paid by Applicant as a result of such change based upon then current truck trip counts that
identify traffic loading due to Applicant -sourced traffic. The amount and extent of dust control
and paving measures will be determined by site -specific conditions at the time, as reasonably
determined by County.
C. Damage to County Roads: Following the earlier of the issuance of a grading permit
required to commence construction of the project, or Applicant's use of the Property for
any use approved under USR-1709, but prior to Applicant's paving of the Haul Route.
Applicant shall be responsible for the repair of any material damage to the Haul Route,
beyond ordinary wear and tear, which is clearly and directly caused by traffic going to or
from the Project ("Road Repairs"). At least 30 days prior to the commencement of
construction activities on the Property, Applicant shall notify County of its intent to
commence construction and thereafter Applicant and County shall jointly inspect the
Haul Route to establish a baseline of current road conditions on the Haul Route so that
subsequent inspections will be able to identify any material damage to the Haul Route
that is attributable to traffic generated by the Project. Except in the event of a condition
causing an immediate threat to public safety, County shall notify Applicant of the need to
perform any Road Repairs and the parties shall thereafter meet at the location where the
Road Repairs are required and shall reasonably agree on the cost and the scope of any
such Road Repairs. If Applicant's Off -Site Road Improvement includes a concrete road,
applicant shall have no further maintenance obligations with regard to the Haul Route
following construction and the passage of the two year Warranty Period. On -Site
Improvements
1.0 Screening Requirements: Applicant shall comply with the terms of the approved
Screening Plan for the Property, and shall be solely responsible for the ongoing maintenance of
said On -Site Improvements.
2.0 On -Site Improvements: Applicant shall, at its own expense, construct or install
the On -Site Improvements (as more particularly set forth in the Development Standards for
USR-1709 and Exhibit A) to be located adjacent to or within the interior of the Property,
including but not limited to drainage facilities, landscaping, and tracking pads or other
improvements acceptable to County to prevent the tracking of mud and debris onto WCR 20,
(together, the "On -Site Improvements"), as shall be more particularly set forth in the
construction drawings approved by County (the "On -Site Construction Plans"). Applicant shall
be responsible for all maintenance of the On -Site Improvements.
3.0 Timing of On -Site Improvements: On -Site Improvements which consist of
grading, drainage and landscaping improvements shall be completed by Applicant prior to the
time that Applicant utilizes the Property for any purpose. Prior to the issuance of a grading
permit or undertaking any On -Site construction, Applicant shall submit On -Site Construction
Plans and a final drainage report, together with the related cost estimates to the County for
review. Following County's acceptance of the On -Site Construction Plans and updated cost
estimates, which shall not be unreasonably withheld or delayed, the plans shall be attached to
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this Agreement as Amended Exhibits A, C and D respectively. On -Site Improvements which
constitute paving (if any), shall be completed by Applicant prior to that date upon which the Off -
Site Improvements are completed. County shall consider potential alternatives to paving within
the Property to prevent the tracking of dirt onto WCR 20, including the use of Class 6 gravel on
the drive lanes within the Property and the installation of cattle guard pairs at the Project
entrance.
4.0 Acceptance of On -Site Improvements: Upon completion of the On -Site
Improvements, Applicant shall contact the Weld County Department of Planning Services and
the Weld County Department of Public Works and request an inspection of the On -Site
Improvements to confirm that they have been constructed in accordance with the approved On -
Site Construction Plans. Upon Applicant's written request for collateral release, County shall
initiate the acceptance process set forth in Paragraph D.6.0, Sections 6.1-6.3.
5.0 Traffic Control: Prior to any construction by Applicant of any On -Site
Improvements in the County right-of-way, and as a condition to issuance of any access permit or
right-of-way permit, Applicant shall submit a traffic control plan for County review. All traffic
control signage shall be posted in accordance with the then current version of the "Manual of
Uniform Traffic Control Devices" issued by the Federal Highway Administration.
D. General Requirements
1.0 Engineering Services: Applicant shall furnish all engineering services in
connection with the design and construction of the On -Site Improvements and Off -Site
Improvements. The On -Site Improvements and Off -Site Improvements may be referred to
together as the "Improvements." The Off -Site construction Plans and the On -Site Construction
Plans may be referred to together from time to time as the "Construction Plans." All engineering
services retained by Applicant in connection with the construction of the Off -Site Improvements
shall be deemed part of the Off -Site Improvement Costs.
1.1 The required engineering services shall be performed by a Professional
Engineer and Land Surveyor registered in the State of Colorado, and shall
conform to the standards and criteria established by County for public
improvements.
1.2 The required engineering services shall consist of, but not be limited to,
surveys, designs, plans and profiles, estimates, and construction supervision.
1.3 Applicant shall furnish construction drawings for Improvements to County
for review prior to the letting of any construction contract, which approval shall
not be unreasonably withheld, conditioned or delayed.
2.0 Rights -of -Way and Easements: If necessary, Applicant shall acquire good and
sufficient rights of way and easements on all lands and facilities traversed by the proposed
Improvements. The cost of acquiring such rights -of -way and easements shall be deemed a part
of the Off -Site Improvement Costs.
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3.0 Construction: Applicant shall furnish and install the On -Site and Off -Site
Improvements as generally described in Exhibit A.
3.1 All construction shall be in strict conformance with this Agreement and
with the Construction Plans reviewed and accepted by County.
3.2 Applicant shall employ, as necessary, a qualified testing company to
perform all testing of materials or construction. The cost of all such testing related
to the Off -Site Improvements shall be deemed a part of the Off -Site Improvement
Costs.
3.3 At all times during said construction, Applicant shall conduct appropriate
testing and inspection of material and work. Any material or work not conforming
to the accepted plans and specifications, including but not limited to damages to
property adjacent to the construction area shall be promptly repaired, removed, or
replaced.
4.0 Liability: To the extent allowed by law, Applicant shall indemnify and hold
harmless the County from any and all liability, loss and damage the County may suffer as a result
of all suits, actions or claims of every nature and description caused by, arising from, or on
account of the negligent or intentional act of the Applicant or its officers, agents, employees,
except for the liability, loss, or damage arising from the negligent or intentional act of the
County. All contractors and other employees engaged by Applicant in the construction of the
On -Site and Off -Site Improvements shall maintain adequate worker's compensation insurance
and public liability insurance coverage, and shall operate in strict accordance with the laws and
regulations of the State of Colorado governing occupational safety and health. The obligations
of the Applicant under this paragraph shall not extend to any judgments against County which
are in excess of the limitations on liability set forth in the Colorado Government Immunity Act,
C.R.S. Section 24-10-101, et. seq., to the maximum extent that such limitations or liability are
applicable.
5.0 Warranty of On -Site and Off -Site Improvements: Applicant shall warranty all
Improvements to public rights -of -way, including all privately created and maintained roads,
rights -of -way, or easements for a period of two (2) years. The warranty period shall begin only
after County's execution of a written acceptance of such Improvements.
6.0 Acceptance of Improvements by County: Upon compliance with the following
procedures by Applicant, the Improvements, or portions thereof, shall be deemed accepted by
County.
6.1 If requested by Applicant and accepted by County, portions of the
Improvements may be placed in service when completed but prior to the
completion of the Project. Such use and operation shall not constitute an
acceptance of the uncompleted portions of the Improvements.
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6.2 County shall issue building permits for construction of the Project if the
Improvements detailed herein have been started but not completed and shall
continue to issue building permits so long as the progress of work on the
Improvements is reasonably satisfactory to County, and Applicant is not in breach
of this Agreement.
6.3 Upon completion of the construction of the Improvements or portion thereof,
and the filing of a Statement of Substantial Compliance, when necessary, by
Applicant's engineer, Applicant may, as set forth in Paragraph C.4.0, request in
writing that County inspect the Improvements. Following such request, the
County Engineer and/or the Weld County Department of Planning Services shall
promptly inspect the subject Improvements, and notify Applicant of any non-
compliance with the approved Construction Plans. If any such deficiencies are
discovered, Applicant shall correct the deficiencies within a reasonable time. The
County Engineer and/or the Department of Planning Services shall promptly re-
inspect the Improvements after notification from Applicant that said deficiencies
have been corrected. If the County Engineer and/or Department of Planning
Services find that the Improvements are constructed according to the approved
Construction Plans, he or she shall recommend full acceptance. Upon receipt of a
positive unqualified written recommendation from the County Engineer and/or the
Department of Planning Services for acceptance of the Improvements, County
shall fully accept the Improvements or portion thereof.
7.0 General Requirements for Collateral:
7.1 County requires Applicant to provide collateral to guarantee the following
obligations of Applicant under this Agreement: (1) "Project Collateral" shall be
provided separately for completion of the On -Site Improvements, the Off -Site
Improvement Costs to construct and install acceleration and deceleration lanes and
stop signs which are to be borne solely by Applicant, and Applicant's
Proportionate Share of the Off -Site Improvements; and (2) "Warranty Collateral"
shall be required for all Improvements during the warranty phase.
7.2 Project Collateral submitted to County to guarantee completion of the
Improvements identified on the accepted Construction Plans and further
enumerated in the costs listed in Exhibit A, must be equivalent to One -Hundred
Percent (100%) of the value of the On -Site Improvements as shown on Exhibit A,
and Applicant's Proportionate Share of the Off -Site Improvements. Project
Collateral shall be provided to County and shall be held until released in whole or
in part by County in accordance with Section D.8 of this Agreement. This Project
Collateral must be submitted to County upon the submission of the Applicant's
application for a grading, building, and/or right-of-way permit, provided, however,
that Project Collateral for the Off -Site Improvements, including Project Collateral
for the acceleration and deceleration lanes and stop signs, shall be submitted in
accordance with Section A.4.0.
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7.3 Warranty Collateral for all On -Site and Off -Site Improvements shall be
submitted to County and shall be held in total by County for two (2) years
following County's written acceptance of the Improvements or portion thereof.
7.4 Acceptable Project Collateral shall be submitted prior to commencement of
Site Preparation, as herein defined. No grading or building permits shall be issued
for Project related activities on the Property and no Site Preparation shall
commence until cost estimates for the On -Site Improvements are updated and
collateral is provided in the amount of one -hundred percent (100%) of the value of
the On -Site Improvements, and the On -Site Construction Plans are revised to
comply with all current County standards, policies and regulations. The On -Site
Improvements shall be completed within the time schedule set forth in Exhibit B
attached hereto. If the On -Site Improvements are not completed within the time
frames, or the Off -Site Improvements are not completed in compliance with the
provisions of this Agreement, the County, at its discretion, may make demand on
all or a portion of the collateral and take steps to see that the On -Site
Improvements are made. "Site Preparation" shall mean earthwork, grading,
performance of work, construction or installation of improvements related to the
Project, and/or other related operations pursuant to USR-1709 that require a
grading, right-of-way or building permit from the County pursuant to the Weld
County Code.
7.5 Collateral may be in the form of an irrevocable letter of credit ("LOC") in an
amount equivalent to (100%) of the total value of the Improvements as set forth in
this Agreement; the LOC shall be subject to the requirements of Weld County
Code Section 2-3-30.B.1. Applicant shall utilize only a County approved form
when obtaining an LOC: (IRRVEVOCABLE STANDBY LETTER OF CREDIT
FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY,
COLORADO). A copy of said form shall be provided to Applicant upon request.
7.6 Collateral may be in the form of a surety bond given by a corporate surety
authorized to do business in the State of Colorado in an amount equivalent to one
hundred percent (100%) of the value of the Improvements as set forth in this
Agreement. The surety bond shall conform to and be subject to the requirements
of Weld County Code Section 2-3-3.B2.
7.7 Collateral may be in the form of a cash deposit made with the Board in an
amount equivalent to one hundred percent (100%) of the value of the
Improvements as set forth in this Agreement.
7.8 The Board of Commissioners of Weld County reserves the right to reject
collateral offered by an institution which does not meet the Bauer Financial Star -
Rating level or the Bond Rating level required by the Board. The Board further
reserves the right to require Applicant to obtain replacement collateral if the rating
of the financial institution providing said collateral drops below the levels stated
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above. Replacement collateral shall be submitted by Applicant within sixty (60)
days of the Board's notice to Applicant that the rating has fallen and that the
collateral must be replaced. Applicant may not terminate existing collateral until
replacement collateral has been secured.
8.0 Request for Release of Collateral: Collateral shall be released in accordance with the
provisions of Weld County Code Section 2-3-30.C. Prior to release of collateral for the entire
project or for a portion of the project by Weld County, the Applicant must present a Statement of
Substantial Compliance from an Engineer registered in the State of Colorado (hereinafter
"Engineer"), that the project or a portion of the project has been completed in substantial
compliance with accepted plans and specifications documenting the following:
8.1 The Applicant's Engineer or his representative has made regular on -site
inspections during the course of construction and the Construction Plans utilized
are the same as those accepted by Weld County.
8.2 For the improvements to public rights -of -way or easements, test results must
be submitted for all phases of this project as per the CDOT Schedule for minimum
materials sampling, testing and inspections found in the CDOT Materials Manual.
8.3 "As built" plans shall be submitted at the time the letter requesting release of
collateral is submitted. The Engineer shall certify that the project "as built" is in
substantial compliance with the plans and specifications as accepted, or that any
material deviations have received prior written acceptance from the County
Engineer.
8.4 The Statements of Substantial Compliance must be accompanied, if
applicable, by a letter of acceptance of maintenance and responsibility by the
appropriate utility company, special district or town for any utilities.
8.5 A letter must be submitted from the appropriate Fire Authority, if applicable,
indicating that the fire hydrants are in place in accordance with the approved plans.
The letter shall indicate if the fire hydrants are operational and, if required by the
County and/or the Fire District, state the results of fire flow tests.
8.6 The requirements in paragraphs 8.0 through 8.5 shall be noted in the final
Construction Plans.
8.7 Following the submittal of the Statement of Substantial Compliance and
written recommendation of acceptance of the Improvements by the Weld County
Department of Planning Services and the Weld County Department of Public
Works, the Applicant may request release of the collateral for the project or
portion of the project by the Board. This action will be taken at a regularly
scheduled public meeting of the Board.
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8.8 For all Off -Site and On -Site Improvements (including improvements to public
rights -of -way or easements), the request for release of Project Collateral shall be
accompanied by Warranty Collateral in the amount of fifteen percent (15%) of the
value of the Improvements as shown in this Agreement.
8.9 Following the written request for release of all or a portion of the Warranty
Collateral, the Weld County Department of Planning Services and the Weld
County Department of Public Works County shall inspect the applicable
Improvements. If said Improvements require mitigation or further repairs are
required, said work must be completed prior to the conclusion of the Warranty
period. The Warranty Collateral shall be released to the Applicant following the
expiration of the warranty period upon final written acceptance by the Board of
County Commissioners.
9.0 Successors and Assigns: Applicant shall have the right to delegate, transfer or assign
this Agreement to a successor owner of the Property in whole or in part without County
approval, provided, however, that Applicant shall only be released from its obligations under this
Agreement with the express written consent of County and the written agreement of the party to
whom the obligations under this Agreement are assigned. Applicant's release of its obligations
shall be accomplished by execution of a written assignment, assumption and release agreement
by County, Applicant and the successor owner of the Property, or by County's execution of a
new Improvements Agreement with the successor owner of the Property. (See paragraphs E.1.2
and 2.2 below.) Consent to a delegation or an assignment will not be unreasonably withheld by
County. County's rights and obligations under this Agreement shall automatically be delegated,
transferred or assigned to any municipality which, by and through annexation proceedings, has
assumed jurisdiction and maintenance responsibility over the roads affected by this Agreement.
All of the terms and conditions set forth in this Agreement shall be binding upon the heirs,
executors, personal representatives, successors and assigns of Applicant, and upon recording by
the County, shall be deemed a covenant running with the land herein described.
10.0 County Engineer: All references in this Agreement to "County Engineer" shall
refer to the any individual or individuals appointed by the County and those appointed by the
County Engineer to act on his/her behalf.
E. Termination of Agreement:
1.0 Termination Event: This Agreement shall terminate upon the earliest of the
following events:
1.1 Cessation of all Permit Related Activities. Termination of this Agreement
shall occur at such time as there has been a complete cessation of all activities permitted
under USR-1709 or any amendments thereto. A partial cessation of activities shall not
constitute a Termination of this Agreement, nor shall County's issuance of a partial
release constitute a Termination. Applicant or, if applicable, the entity operating the
facilities authorized by USR-1709 ("Operator") shall provide written notice to County
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VIII IgtrIANiiirl4P4 likA 1111
of said cessation of activity, which County shall then verify. If written notice is not
provided to County, Termination of this Agreement shall not occur until County has
determined that the Use by Special Review is inactive, which shall occur three (3) years
following County's observance of the cessation of activities, as provided in Sec. 23-2-
290.B of the Weld County Code.
1.2 Execution of Replacement "Improvements Agreement According to
Policy Regarding Collateral for Improvements — USR-1709 by New Property Owner:
This Agreement shall terminate in the event that County executes a new Improvements
Agreement According to Policy Regarding Collateral for Improvements — USR-1709
with a new Property owner who has purchased the Property, and intends to make use of
the rights and privileges available to it through the then existing USR.
1.3 Execution of Replacement "Improvements Agreement According to
Policy Regarding Collateral for Improvements — USR-1709 by New Operator: This
Agreement shall terminate in the event that County executes a new Improvements
Agreement According to Policy Regarding Collateral for Improvements — USR-1709
with a new Operator who has assumed the operation of the business on the Property
which business activities are permitted by the then existing USR.
2.0 Termination Procedures.
2.1 Termination Procedures Following Cessation of Permit Related Activities:
Following the events outlined in paragraph 1.1 above, County shall conduct its annual
road inspection. Said road inspection shall be conducted on or before May 31 following
the announcement or determination of the cessation of permit related activities on the
Property. The results of the inspection shall be delivered in writing to the Applicant and,
if applicable, to Operator. If County determines that pursuant to the terms of this
Agreement, Improvements required by this Agreement have not been completed, said
obligations must be completed within a reasonable period of time thereafter, but in no
event later than six (6) months following the determination that permit related activities
have ceased. Collateral shall not be released by County until such time as County
determines that all Improvements have been completed.
2.2 Termination Procedures Pursuant to Transfer of Ownership of the
Property or Transfer of Operations: If the Applicant or Operator desires to assign their
rights and obligations under this Agreement to a successor owner or Operator of the
Property and to be released from their obligations under this Agreement, the Applicant or
Operator as applicable shall provide County with a written Notice to Transfer, stating the
date of transfer, and identifying the party to whom the transfer shall be made. Following
receipt of the Notice to Transfer, County shall inspect the Improvements required under
the terms of this Agreement to determine whether the Improvements have been
completed. If the Improvements have not been completed, the Applicant and/or Operator
shall either complete the Improvements or the successor Property owner or Operator shall
post substitute collateral equal to the cost of the completion of the Improvements.
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3.0 Consequence of Termination by Cessation of Permit Related Activities:
Following County's confirmation that Applicant and/or Operator has/have ceased all permit
related activities and has/have completed previously uncompleted Improvements, County shall
release Applicant and/or Operator from all further obligations under this Agreement. No Further
permit related activities shall be permitted unless and until approved by County following
execution of a new Improvements Agreement According to Policy Regarding Collateral for
Improvements — USR-1709.
4.0 Consequence of Termination by Execution of Replacement Improvements
Agreement: Following County's execution of an Improvements Agreement According to Policy
Regarding Collateral for Improvements — USR-1709 with a successor Property owner and/or
Operator, the Applicant shall have no further rights and/or obligations under this Agreement or
in USR-1709.
5.0 Consequence of Termination Pursuant to Paragraph F.3.0: In the event that
activities related to USR-1709 cease as a result of the revocation of the permit as described in
Paragraph F.3.0 of this Agreement, Applicant shall be released from the obligations imposed by
this Agreement only after Applicant's successful completion of all Improvements required under
this Agreement or after County assesses the collateral to the extent necessary to complete
Improvements that County, in its sole discretion, deems necessary to preserve public interests.
F. General Provisions
1.0 Governmental Immunity: No term or condition of this agreement 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.
2.0 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
contained in this Agreement shall give or allow any claim or right of action whatsoever by any
other person or entity not included in this Agreement. It is the express intention of the
undersigned parties that any person or entity, other than the undersigned parties, receiving
services or benefits under this Agreement shall be an incidental beneficiary only.
3.0 Violation of Terms of Agreement: If in County's opinion, Applicant has violated
any of the terms of this Agreement, County shall notify Applicant in writing of the alleged
violation and shall state with specificity the facts and circumstances which County believes
constitute the violation. Applicant shall have thirty (30) days within which to either cure the
violation or demonstrate compliance or to contest the violation. If, after thirty (30) days have
elapsed, County believes in good faith that there has been a violation of the terms of this
Agreement, County may initiate proceedings to revoke USR-1709 (as it now exists or may, from
time to time, be amended in accordance with the procedures of the Weld County Code), or to
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14
initiate legal or equitable proceedings to enforce the Agreement, or any combination of these
processes.
4.0 Notices: For the purposes of this Agreement, the addresses of the parties are, and
all notices required or permitted hereunder shall be given to:
If intended for County, to:
Weld County Department of Public Works
Attn: County Engineer
1111 H Street
P.O. Box 758
Greeley, Colorado 80632
If intended for Applicant, to:
Suncor Energy (U.S.A.) Pipeline Company
Attn: Kelly Gleason
1715 Fleischli Parkway
Cheyenne, Wyoming 82001
With a copy to:
Weld County Attorney's Office
Attn: Weld County Attorney
1150 "O" Street
P.O. Box 758
Greeley, Colorado 80632
With a copy to:
Suncor Energy Services, Inc.
Attn: Jacy Rock
717 17th Street, Suite 2900
Denver, Colorado 80202
And to:
Attn: James B. Borgel, Esq.
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
All notices shall be given by certified mail, postage prepaid, return receipt requested, or by
overnight express delivery by a nationally recognized overnight courier. Such notice delivered
by (i) certified mail shall be deemed to have been duly given three business days after such
notice is deposited with the United States Post Office, or (ii) overnight express delivery shall be
deemed to have been duly given one business day after such notice is deposited with such
overnight courier with instructions to deliver such notice the next following business day.
Business day as used herein means any calendar day other than a Saturday, Sunday, or official
holiday of the State of Colorado. Either party may, by written notice to the other party, change
its notice person(s) or designated representative(s) or the address to which written notices and
communications are to be sent.
5.0 Severability: If any provision of this Agreement shall be held invalid or
unenforceable, the remainder of this Agreement and the application of such provision to persons
or situations other than those to which it shall have been held invalid or unenforceable, shall not
be affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted
by law.
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6.0 Counterparts: This Agreement may be executed in counterparts, each of which
shall constitute an original and together which shall constitute one and the same document.
Facsimile signatures shall be accepted as originals.
7.0 Choice of Laws/Entire Agreement: This Agreement shall be governed by the
laws of the State of Colorado. This Agreement has been designed in part to encompass the
requirements of the Board of County Commissioner's Resolution to approve Applicant's "Site
Specific Development Plan and Use by Special Review Permit #1709 for a Mineral Resource
Development Facility, Including an Oil and Gas Support and Service Facility (Crude Oil, Truck
Unloading Facility) in the A (Agricultural) Zone District — Suncor Energy (USA) Pipeline
Company" and the Development Standards established for the operation of the Project. Any
amendment to this Agreement shall only be valid if set forth in writing and signed by both
Applicant and County.
8.0 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPLICANT:
SUNCOR ENERGY (U.S.A.) PIPELINE
COMPANY, a Colorado corporation
By: f1MV
Name: NIA xl c'i 1 1--Io,J Ea.!
Its: P12 -ES l"D EPJT
STATE OF COLORADO )
) ss.
COUNTY OF -Denel Q 2 )
The foregoing instrument was acknowledged before me 1 this 2 1 day of
,2013, by IAA •-1, l+Ot e.L as '1-1--Frcp-1
of SUNCOR ENERGY (U.S.A.) PIPELIN OMPANY, a Colorado corporation.
Witness my hand and official seal.
My commission expires: OS) ID 1 t
1 /
JILL. WELLS
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20084018139
MY COMMISSION EXPIRES AUGUST 10, 2016
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Notary Pu
16
COUNTY:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: g,u sA � ^
WELD COUNTY CLERK
TO THE BOARD
By:
Deputy Clerk "the Board
APPROVED AS TO FO
Attorney
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4iC�ltdYlllr +u#R A' Y YIti
William F. Garcia, Chair
opiediew
17
JUL 15 2013
col -/FS/
EXHIBIT A
List of On -Site and Off -Site Improvements and Costs
To be amended, completed and submitted prior to or coincident with Applicant's
application for a grading permit and prior to Applicant's use of Property
Amended Exhibit A to include Off -Site Improvements
See attached.
A-,
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®III MPSEMI' EVPl' hllME.II 111
EXHIBITA
SunCor Energy (U,S.A.) Pipeline Company
Truck Unloading Facility, Weld County, CO
USR Improvements Agreement Estimate (Site Improvements)
TT Project No, 133-2:474-08001
Tetra Tech Preliminary Design dated February 2008
ITEM DESCRIPTION UNIT QUANTITY UNIT COST TOTAL �?
A. OFF SITE IMPROVEMENTS
1. EntrancelAccess Improvements
1 Grading (complete)
2 Road Ease
3 10"RCP Culvert
4 Fip Rap
5 $ipear;
2. Landscaping (Seeding)
t Reaegetalion
3. County Read 201mprnvements
B. ON SITE IMPROVEMENTS
1. Site Grading (includes Street Grading)
I Cut and Pll I - on site
2. Strad ease
1 Road Base
3. Paving
1 Concrete Pacing, t0" depth
4. Curbs, Gutters and Cutter's
1 Concrete Curb aria Gutter
2 Can crete Parking Bumper
5. RetentierrDetention Ponds
112" RCP Culvert
2 Outlet Slnlcturee
3 Cat Oft Walls
4 Emergency Spillway
5. Ditch Improvements
1 TOM Lined Areas
1. Erosion Control Measures rl3MPs
1 Silt Fence
2 Inlet Protection
3 Ou11et Puolectlen
4 Concrete Washout Areas
S Vehicle Tracking Pads
6 Chock Dame
7 Rip Rap
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1111
CY 000 54.00 52,400.00
TON 181 514.00 52.601.00
IF 70 548.00 53,360.00
CY 10 532.00 522000
EA 5400.00 5400.00
Subtotal 59,161.00
SY 489 50.76 535700
Subtotal 9367.00
Cost to be de twit nerd when Construction Plans are submitted.
A. TOTAL OFF SITE IMPROVEMENTS $9,528.00
CY 50.082 5400 540365.00
Subtotal $40,365,00
TON 15,4012 014,00 $315.680.00
Subtotal 5215,880.00
SY 2.000 537,00 074,000.00
Subtotal 574,1100,00
IF 030 516,00 09,540.00
EA 6 $45.00 538000
Subtotal S9,540.00
LF 180 536.00 57.220.00
EA 1 51,000.00 $1,000.00
EA I 5500.00 5500.00
CY 10 532.00 5320.00
Subtotal $9,040.00
SY 500 54,00 32,00000
SObt0tal 82,000.00
IF 1,300 53.00 53,900.00
EA 2 $150.00 $305.00
EA 2 0200.00 5400.00
EA I 5800.00 5800.00
EA 1 S1,000.00 51.000.00
FA 10 050,00 5500.00
CY 25 532,00 5000 00
Page 1 23474-08001 SIA Cost Esamate_Prcllm Design alas
A
,700.00
Page 2 23474-0860 f_SIA Cost Estimate„ Prelim Oesign,zisx
A-3
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BO PAW VJfrPrIIIIICWIC VIJAIT.MliiA Biiii
r.,
ITEM DESCRIPTION
UNIT
CUA. Nil!? UNIT COST TOTAL
8. Signege and Pavement Marking
1 $Igrwga
9. Feneng Requirements
1 Site Fencing
2 Site Fencing (vah screening)
3 Gale (vehicle)
4 Gate (personnel)
10. Landscaping (Seeding, Trees, etc.)
1 Topsoil Placement 46'7
2 Reeegelet,on
Ea _ S400.00 $800.00
Subtotal 5800.00
IF 1,4;4 $7,00 510.038.00
IF 685 S8.50 $5.822.50
EA 2 31.600.00 53,200.00
EA a $300.00 $1,800.00
Subtotal $20,868.50
CY 482 S5.ST $2,!10.00
SY 4,37e 50.75 $3204.00
Subtotal S5,81k4.00
B. TOTAL ON SITE IMPROVEMENTS $385,680.50
Nees
I. Above quantifies are based on preliminary design and site plan dated February 2009.
2. Final grading and drainage design wile final construction plans will be submitted and approved by
Weld County Public Works at a later date.
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Page 3 23474.08001 SIACost Estimate_Prelim Desigruisn
A-4
EXHIBIT B
Schedule for Completion of Improvements
To be completed and submitted prior to or coincident with Applicant's application for a grading
permit and prior to Applicant's use of Property
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B-1
EXHIBIT C
Copy of On -Site Construction Plans
To be completed and submitted prior to or coincident with Applicant's application for a
grading permit and prior to Applicant's use of Property
C-1
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EXHIBIT D
Copy of Off -Site Construction Plans
To be completed and submitted in accordance with Section A.4.0.
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D-1
MEMORANDUM
DATE:July 10, 2013
TO: Board of County Commissioners
FR: Stephanie Arries, Assistant Weld County Attorney
RE: Suncor Energy USA Improvements Agreement
USR-1709
This Improvements Agreement departs from the usual format of the Improvements Agreements
currently utilized by Weld County due to the fact that it has been negotiated over a period of
about three (3) years, since the initial USR approval on December 16, 2009. The Board has been
apprised of the on -going negotiations from time to time (in 2010, 2011 and 2012), since the USR
was approved. In addition, the matter was further delayed when Suncor decided to subdivide the
property initially covered by USR-1709, to limit the property covered by the USR and
Improvements Agreement.
Suncor has not yet begun to utilize the property as a Mineral Resource Development Facility,
and a date has not yet been set as to when the development of the property will begin. The
Improvements Agreement requires Suncor to post collateral for its on -site improvements
following its application for a grading, building and/or right-of-way permit. The on -site
improvements include acceleration and deceleration lanes, stop signs, drainage features, cattle
guards, landscaping and grading.
The Improvements Agreement also requires the posting of collateral for the construction of off -
site improvements, namely the paving of WCR 20, following the County's notice to Suncor that
the road must be constructed when the traffic triggers have been met. Suncor has determined that
it will construct a concrete road so that it will not have on -going road maintenance
responsibilities. The portion of WCR 20 which Suncor will pave will extend from the company's
entrance onto WCR 20 westward to State Highway 85. The amount of off -site collateral will be
determined at the time construction is required and will be based upon Suncor's proportional
share of traffic.
The Improvements Agreement has been executed by Suncor, and is presented to the Board for its
approval.
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