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Home My WebLink About20132762.tiffRESOLUTION RE: APPROVE IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS, AUTHORIZE CHAIR TO SIGN FOR USE BY SPECIAL REVIEW PERMIT, USR12- 0065 - BRUCE SANDAU, ROBERT SANDAU, BARTELS FAMILY, LLC / A & W WATER SERVICES, INC. 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 January 2, 2013, the Weld County Board of Commissioners approved Use by Special Review Permit, USR12-0065, for Bruce Sandau, Robert Sandau, Bartels Family LLC, 18446 County Road 31, Platteville, Colorado 80651, do A&W Water Services, Inc, 11700 Katy Freeway, Suite 300, Houston, Texas 77079, with an agent for service of process located at the Corporation Company, at 1675 Broadway, Suite 1200, Denver, Colorado 80202, and a local office located at 13025 County Road 16, Fort Lupton, Colorado 80621, for a Mineral Resource Development Facility, including Oil and Gas Support and Service (water hauling) in the A (Agricultural) Zone District, on the following described real estate, to -wit: Subdivision Exemption, SUBX12-0016, being part of the SW1/4 of Section 25, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado WHEREAS, pursuant to certain Conditions of Approval, the Board has been presented with an Improvements and Road Maintenance 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 Bruce Sandau, Robert Sandau, Barthels Family LLC / A&W Water Services, Inc., 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 and Road Maintenance 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 Bruce Sandau, Robert Sandau, Bartels Family, LLC / A&W Water Services, Inc., be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. 3971485 Pages: 1 of 33 M R Steve Morre o 7 , Cle k and Recorder, eld County, CO 1111 M��0.1ilI,$1 Nti w1h,lifR+!t 11111 /7 2013-2762 PL2199 IMPROVEMENTS AGREEMENT - BRUCE SANDAU, ROBERT SANDAU, BARTELS FAMILY, LLC /A & W WATER SERVICES, INC. PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 30th day of September, A.D., 2013. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTES Weld County Clerk to the Board BY: Deputy CI ounty Attorney OCT 0 9 2013 Date of signature: 3971485 Pages: 2 of 33 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO NirdiaviafairliaLivitvi true' EXCUSED William F. Garcia, Chair > Doug Rademabher, Pro-Tem an P. Conway ^ n e Freeman 2013-2762 PL2199 MEMORANDUM TO: Clerk to the Board DATE: 9/24/2013 FROM: Richard Hastings, Public Works Department SUBJECT: BOCC Agenda Item - Approve Improvements Agreement For: Bruce Sandau, Robert Sandau, Bartels Family LLC and A & W Water Services, Inc. - (USR12-0065) Request for Approval of Improvements Agreement: The Department of Public Works and the Department of Planning Services received a request from the applicant's representative, Linn Leeburg, requesting that the Board of County Commissioners consider approving the Improvements Agreement for an Oil and Gas Support and Service Facility (water hauling) for (USR12-0065), located on CR's 35 & 40, south east of the town of Gilcrest. Weld County Public Works Department reviewed the above -mentioned signed original document and observed the following: • All Public Works related items, of the "Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements", are found to be acceptable. Collateral: The applicant does not expect to commence construction of its improvements at this time, and the Department of Public Works and the Department of Planning Services agree that construction of the improvements is not required at this time. The Improvements Agreement establishes the requirements for the posting of collateral. Recommendation: The Department's of Public Works and Planning Services are recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements and that no collateral be required at this time for Bruce Sandau, Robert Sandau, Bartels Family LLC and A & W Water Services, Inc. - (USR12-0065). 2013-2762 pc: Heidi Hansen, Public Works Diana Aungst, Planning Services M:\PLANNING -- DEVELOPMENT REVIEW\ -2012 Planning Referrals\USR12\USR12-0065 A&W Sandau\Improvements Agreement\Approve IA (USR12-0065) - Sandau, Bartels and A&W Water- MEMO.docx IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Bruce Sandau, Robert Sandau, Bartels Family LLC and A & W Water Service, Inc. USR12-0065 Part 1: Site Specific Provisions THIS AGREEMENT is made this 36 ay of { 2015, by and between Bruce Sandau, Robert Sandau, Bartels Family LLC , whose address is 18446 CR 31, Platteville, Colorado 80651, hereinafter referred to as "Property Owner," A & W Water Service, Inc., whose principal business address is 11700 Katy Fwy., Suite 300, Houston Texas 77079, with an agent for service of process located at the Corporation Company, at 1675 Broadway, Suite 1200, Denver, Colorado 80202, and a local office located at 13025 CR 16, Fort Lupton, Colorado 80621, hereinafter called "Lessee", and the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter referred to as "County." WITNESSETH: WHEREAS, Property Owner is the owner of, the following described property in the County of Weld, Colorado: SUBX12-0016, being part of the SW 1/4 of Section 25, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado and hereinafter referred to as "the Property," and WHEREAS Lessee has leased the Property from the Property Owner and WHEREAS, County has approved land use permits for a Mineral Resource Development Facility, including an Oil and Gas Support and Service Facility (Water Hauling), on approximately 2.25 acres on the above described real property, and the County is currently in the process of considering an Use -by -Special Review for the Property (USR12-0065), and WHEREAS, the Property Owner and Lessee acknowledges that the issuance of USR12- 0065 is conditional upon Property Owner and/or Lessee's performance of the on -site and off - site improvements which are described in this Agreement and depicted in the Plat Map provided by Property Owner and/or Lessee, copies of which shall be attached to this Agreement as they become available and made a part hereof, as Exhibit C, and WHEREAS, Property Owner and Lessee acknowledge that neither may engage in any activity described in USR12-0065 and/or any activity related to the businesses described above until said improvements have been completed, and WHEREAS, Property Owner and Lessee agree that pursuant to the provisions of Weld County Code Sec. 23-2-290, the failure to commence construction of the improvements outlined herein or to commence the use of the Property as approved in USR12-0065 within three (3) years Page 1 of 22 M:\PLANNING — DEVELOPMENT REVIEW \-2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water-Sandau (USRl2-0065) Part 1 -Site Specific Provisions- IA Final 2013 (S-7-13).docx o?D/3-a 7tcZ of the approval of the permit issued under USR12-0065, may result in the revocation of USR12- 0065, upon consideration and order of the Board of County Commissioners, and WHEREAS, the Property Owner and Lessee acknowledge that the failure to record the plat within the time limits imposed by the Weld County Board of County Commissioners, may result in the revocation of USR12-0065, upon consideration and order of the Board of County Commissioners, and WHEREAS, the parties agree that Property Owner and/or Lessee shall provide collateral for all on -site and off -site improvements required by this Agreement; when the Property Owner and/or Lessee submits and receives approval of an application for a Grading Permit, Building Permit or for a Right -Of -Way Permit for construction of accesses and work within the County and/or State of Colorado Right -Of -Way, when site related activities permitted under USR12- 0065 commence, or at a time determined acceptable by the Board of County Commissioners, and WHEREAS, the Property Owner and Lessee Agree that neither can assign their obligations under this agreement without the written consent of the Weld County Board of County Commissioners. 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: The Property Owner and Lessee are responsible to the County for the completion of the following off -site improvements although they may decide that one or the other bear the primary obligation to complete the following listed improvements. 1.0 Weld County Road 40: The Property Owner and Lessee shall be responsible for the construction of certain on -site and off -site safety improvements, which shall include: construction of adequate turning radii sixty (60) feet at the main entrances and exits which extend partially into CR 40 right-of-way (ROW), drainage and signage installations, as indicated on the accepted Plat Map. The main entrance improvements will include a gravel section, as detailed in Exhibit E and if tracking occurs, as determined by the County, fifty (50) feet of crushed concrete or a double cattle guard set (one right after the other), placed back to back across the entire width of the roadway, to ensure a complete revolution of the truck tires in order to minimize the tracking of mud and debris onto the adjacent County road. (See Section D.2.0 of this Agreement). If CR 40 is paved during the operation of the site the tracking control shall be upgraded to the County standard of 100 feet of onsite pavement plus double cattle guards or 300 feet of onsite pavement. Granting of any new point of access may generate additional obligations with County for Off -Site Improvements and the need to post additional "Road Maintenance Collateral". A County access permit is needed for every access to a County road. 2.0 Road Improvements Responsibilities: Property Owner and Lessee are solely responsible for all designated improvements, as specified above in Section A.1.0, on CR 40 and for any construction improvements mandated by the County, and for all expenses associated therewith. These responsibilities include, but are not limited to the following: design, surveys, utility locates, present and future right-of-way clearances and permits; coordination with oil and gas operators and facilities, and affected irrigation facilities; traffic control; and project safety during construction. Property Owner and Lessee shall obey all applicable regulations issued by Page 2 of 22 M:\PLANNING — DEVELOPMENT REVIEW\ -2012 Planning Referrals\USR22\USR12-0065 A&W Sandau\mprovements Agreement\AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (8-7-13).docx the Occupational Safety and Health Administration (hereinafter "OSHA"), Colorado Department of Public Health and Environment, (hereinafter "CDPHE") and other Federal, State or County regulatory agencies. 3.0 Engineering Design and Plat Map: For Off -Site Improvements as set -forth in Sections A. 1.0-2.0 above, all engineering designs and Plat Map must be provided by Property Owner and Lessee. The Plat Map, when reviewed and accepted by the Weld County Engineer, shall be a part of this Agreement. Any Plans showing work within the County shall be reviewed and accepted by Weld County, 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 Public Works for review and acceptance. 4.0 Construction Standards: All construction and materials controls for a project and any designated improvements shall conform to the requirements in effect as the time of the completion of the improvements set forth in the "Standard Specifications for Road and Bridge Construction" provided by CDOT. 5.0 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, the applicant shall submit a traffic control plan for County review. During construction, appropriate safety signage shall be posted in accordance with the then current version of the Manual of Uniform Traffic Control Devices, thereinafter "MUTCD". 6.0 Off -Site Dust Control/Abatement and/or Paving: The Property Owner and Lessee is required to provide dust abatement along affected Haul Route Roads approximately two to five times per year, as determined by the County. The amount and extent of dust control will be w determined by site -specific conditions at the time, as determined exclusively by County MIT-opersonnel. In order to accurately determine percentage of Property Owner and Lessee haul traffic, the County reserves the right to install traffic counters on the driveway(s) of their facility. ■�30O1 The percentage of haul traffic utilizing County roads in the vicinity of the site attributable to w Property Owner and Lessee (or their contractors, clients, tenants, or customers) activities will be N � determined by traffic counts conducted by the County on the primary and requested alternate or a revised haul routes. The County will have sole responsibility for determination of the percentage cs,2?! of haul route traffic on all affected roads. tiA Er cri o -n ;QID O eT ; .". a_ OD a0 rte. w mwy.—. CL ■ ▪ o 0 S al.4- a ■.oNaa 7.0 Future Improvements: Future improvements to the haul route(s) may be required by County. Property Owner and Lessee shall address all County access issues associated with afore -mentioned haul route. Future County mandated measures may include improvements to any haul route intersections or roadways then utilized by Property Owner and Lessee. Improvements to the radiuses at the intersection of CR 35 & CR 40 may be required, as determined by the County, to allow trucks to utilize the haul route without turning into the oncoming traffic lane. Property Owner and Lessee shall pay a proportionate share of the cost of the entire project including engineering designs and Plat Map based on the Property Owner's share of ESAL Counts using then current data on the haul route in the implementation of the above -mentioned improvements. County personnel alone shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. In order to accurately determine percentage of Property Owner and Lessee haul traffic, the Page 3 of 22 M:\PLANNING — DEVELOPMENT REVIEW\ -2012 Planning Referrals\USR12\USR12-0065 A&W SoudauVmprovements Agreement \AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (8-7-13).docx County reserves the right to install traffic counters on the driveway(s) of their facility. Future improvements will be subject to any Federal, State or County regulations in place at the time the improvement project is initiated. Haul Route improvements may be triggered due to heavy truck traffic associated with the facility. The following Vehicle Per Day (VPD) or Vehicle Per Hour (VPH) Triggers will be utilized: a. Asphalt Pavement on CR 40 will be required when the traffic volumes reach 300 VPD. b. Left Deceleration Lane on CR 40 will be required when the traffic volumes reach 10 VPH c. Right Deceleration Lane on CR 40 will be required when the traffic volumes reach 25 VPH d. Right Acceleration Lane on CR 40 will be required when the traffic volumes reach 50 VPH 8.0 Timing of Improvements: Subject to the provisions of Weld County Code Sec. 23-2-290 and any conditions or considerations granted by the Board of County Commissioners, Neither Property Owner and Lessee shall be required to complete the aforementioned offsite improvements as described in Sections A. 1.0-2.0 until the occurrence of the triggering event for each improvement, namely the application for the Grading Permit, Building Permit or Right -Of - Way access permit or the commencement of activities on the property(s). At that time, Property Owner and Lessee agrees that the required collateral will be posted and all on -site and off -site improvements shall commence and shall be completed within the parameters established in Sections A.3.0 and E.7.2, and Exhibit B, herein. 9.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, Property Owner or Lessee shall contact a representative of the Weld County Department of Public Works and request an inspection of the off -site improvements described in Sections A.1.0-2.0 above. The County's representatives may then initiate the acceptance process set forth in Sections E.6.0, sections 6.1-6.3. 9.1 All references in this Agreement to "Acceptance of Improvements" shall refer to the County confirming completion of said improvement(s) according to the accepted Plat Map. By accepting any improvement, the County does not thereby accept said improvement for purposes of future maintenance, nor does the County accept any present or future responsibilities or obligations relative to these improvements. B. Haul Routes: 1.0 Established Haul Routes: 1.1 Exiting or entering the site: Haul trucks shall enter or exit the site at the approved accesses onto CR 40. Haul trucks will travel west on CR 40 to CR 35 and then half the traffic will travel north to CR 44, then west to US 85 while the other half will travel south on CR 35 for further dispersal. 1.2 No haul truck may exceed CDOT required specifications for pounds per axle. Page 4 of 22 M:'PLANNING —DEVELOPMENT REVIEW/N-2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (8-7-13).docx 1.3 In unusual or rare occasions, if particular projects mandate deviation from the above -mentioned haul route for a limited period of time (which is defined in this Agreement as a period of not more than thirty days), which shall be established by County at the time that the deviation is allowed. If County approves such deviation, trucks will utilize paved county roads whenever possible. A deviation from the established Haul route lasting more than thirty (30) days or requests for two or more deviations within a twelve month period shall be subject to the terms of Section 4.0 of this Section B. In the event that haul truck traffic, in excess of 15% of the daily facility truck trips, utilizes alternate haul routes, the provisions of Section 4.0 of this Section B shall be triggered. 2.0 Haul Route Signage: Property Owner or Lessee shall install haul route signs, as per MUTCD standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility and which clearly depict County approved haul routes. 3.0 No Deviation from Permitted Haul Routes: Except under the provisions provided in Section B.1.3, no deviation in the use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. 4.0 Effect of Future Changes to Haul Routes: In the event that County is requested by Property Owner and/or Lessee or site operator to approve the use of an additional access, new haul route, or an alternative haul route as a result of a change in Property Owner and/or Lessee'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, Property Owner and/or Lessee agrees that dust control or paving measures to protect the public health, safety, and welfare shall be instituted. County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner and/or Lessee based upon then current truck trip counts that identify traffic loading due to Property Owner and/or Lessee -sourced traffic. The Nm 6 amount and extent of dust control and/or paving measures will be determined by site -specific Z-1 conditions at the time, as determined exclusively by County personnel. L (Nda za w C. Road Maintenance Requirements: TFNiu 1.0 Obligation to Maintain Current and Future Haul Routes: Property Owner and/or m a3 Lessee will be financially responsible for the excavation, repair, and patching of any damage on current or future haul route roads, which in the sole opinion of County has been created by kcaF o a o hauling to and from the Property. Should Property Owner and/or Lessee's site activities and/or 4. . "' should Property Owner and/or Lessee's haul route circulation patterns change in the future so - mw that County approves an alternate haul route, and all or a significant portion of Property Owner r=.¢ and/or Lessee's sourced traffic no longer utilizes the above -described haul route and instead o utilizes other portions of County roads, Property Owner and/or Lessee shall cooperate with 0County in maintenance of said roads which are included within the new haul route. The type and method of repair will be determined by the County Engineer or his representative. Repairs shall e- n commence within 48 hours of notification by the County for any roadway damage that exposes riW the driving public to adverse or unsafe driving conditions. All other repairs shall commence Page 5 of 22 M:\PLANNING—DEVELOPMENT REVIEW -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\mprovements Agreement\AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (S-7-13).docx within thirty (30) days of receipt of Weld County's written notice. 1.1 -Y"t.) mw em co Vw -0-2!? -NW VI a3y -oo o CO O 2 'mo a—. m w 2.0 Annual Road Inspection: County will conduct a road inspection annually with the w m cooperation of Property Owner and/or Lessee and all other Property Owner and/or Lessees and/ so or Lessees who are required by County to participate in road improvement/maintenance agreements. As a result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall further determine what road repair/improvement/maintenance work is o to be performed during that construction season. Notification to the Property Owner and Lessee LIE of the required roadway repairs will be given as soon as the data becomes available. Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project traffic that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify Property Owner of such Significant Damage. Property Owner shall identify the repair required and shall consult with County on the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent) within twenty-four (24) hours after receipt of such notice and shall commence such repair within forty- eight (48) hours after receipt of such notice. If such repair is not commenced within such forty-eight (48) hour period, County shall have the right to draw on the Road Maintenance Collateral and use such funds to perform such repair. If Property Owner identifies Significant Damage prior to receiving notice thereof from County, Property Owner may commence repair of such Significant Damage and shall concurrently notify County of the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent). 1.2 Repair of Road: On or before December 31 of the calendar year in which County staff has determined through site analysis and/or pavement testing that a particular haul route road portion will require paving measures in order to protect the public health, safety, and welfare, and has budgeted sufficient funds for the following calendar year to pay its share of the Off - Site Improvement/Repair Costs, County shall notify Property Owner and Lessee in writing that the Off -Site Improvements/Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of the need to undertake the road maintenance repairs and/or improvements, Property Owner and/or Lessee shall submit Off -Site Plans and Cost Estimates to County for review. Property Owner and/or Lessee shall have sole responsibility for the completion of the repairs and/or improvements on or before December 15 of the year following County's notice of the need for repairs. 1.3 In County's sole discretion, County may undertake the repairs and/or improvements. Property Owner and/or Lessee's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in Sections A.6.0 or A.7.0 of this Agreement, and in a manner consistent with Section C.3.0 of this Agreement. Page 6 of 22 iM:\PLANNING -- DEVELOPMENT REVIEW -2012 Planning Referrals \USR12\USR12-0065 A&W SandauUmprovements Agreement\AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (8-7-13).docx 3.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road damage increases beyond the point that repair of damage cannot maintain the road in a safe and usable condition, Property Owner and/or Lessee shall pay a proportionate cost of a complete restoration based on the number of Truck Trip ESAL Counts using then current data of truck trips entering or exiting the Property onto the haul route in the implementation of the above - mentioned improvements. Notification to the Property Owner and Lessee of the required roadway replacements will be given as soonas the data becomes available and typically takes place before the end of the year prior to the start of the replacement project, as described in Section C.1 above. 4.0 Sharing of Road Maintenance Responsibilities with Other Property Owner and/or Lessees: It is anticipated that Property Owner and/or Lessee and other Property Owner and/or Lessees subject to agreements similar to this Agreement will perform the required road maintenance work and will share in the equipment, labor, and materials required. Any such sharing arrangement between Property Owner and/or Lessee, and other Property Owner and/or Lessees shall be conducted pursuant to separate agreements between the Property Owner and/or Lessee and other Property Owner and/or Lessees. County shall approve the Agreements only to determine whether the required improvements/maintenance projects have been adequately addressed. County alone shall determine the sufficiency of all road improvement/maintenance projects when completed. 5.0 Violation of Terms of Agreement: If Property Owner and/or Lessee does not perform as outlined in this Agreement and Exhibits A and B such non-performance will constitute a violation of USR12-0065 granted by County, and County will take whatever remedial measures it deems necessary, against Property Owner and/or Lessee. In addition to any other remedy available to the County in law or equity, a failure to comply with this Agreement shall be considered grounds for setting a probable cause hearing according to the procedures described in Section 2-4-40 of Weld County Code. Revocation of USR12-0065 as it now exists or may, from time to time, be amended is a remedy which County may impose. t,eotwo ar p ▪ 4303 i p m tioW 0 z;NO, e = a N — zap _:ipm a,p =+-mw "mw iam Tn - a FCC i n r -O r D. On -Site Improvements: The Property Owner and Lessee are responsible to the County for the completion of the following on -site improvements although they may decide that one or the other bear the primary obligation to complete the following listed improvements. 1.0 Landscaping and Fencing Requirements: Property Owner and/or Lessee shall landscape and/or maintain the landscaping and re -seeding of the property where applicable as shown on the accepted USRl2-0065 plat map. Specifically, Property Owner and/or Lessee shall at the expense of one or the other, plant, install and/or maintain all grass and other landscaping and re -seeding where applicable as shown on the accepted USR12-0065 plat map. Additionally, the Property Owner and Lessee shall install and/or maintain fencing to screen the property where applicable as indicated on the accepted USR12-0065 plat map. In the event any of these improvements may include work extending into State or County Right -Of -Way, a Right -Of -Way or access permit is required. 2.0 On -Site Grading, Drainage Facilities and Paving: Property Owner and/or Lessee shall, at its sole expense, grade and/or pave, if applicable, specified roadways, accesses, easements and parking areas, and install accepted drainage and signage components, adjacent to or within the interior portion of the property in accordance with the directives of the Weld Page 7 of 22 M:\PLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandan\Improvements Agreement\AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (8-7-13).docx County Depatluient of Public Works and Department of Planning Services, as further described in the accepted USR12-0065 Plat Map. The main entrance improvements will include; construction of adequate turning radii at the main site entrance onto CR 40, a gravel section, as detailed in Exhibit E and if tracking occurs, fifty (50) feet of crushed concrete or a double cattle guard set (one right after the other), placed back to back across the entire width of the roadway, to ensure a complete revolution of the truck tires in order to minimize the tracking of mud and debris onto CR 40. Any other on -site improvements shall be completed as indicated on the accepted Plat Map for this facility. Property Owner and/or Lessee shall be responsible for all maintenance of the on -site improvements. Refer to Section A., section 1.0 of this agreement for any specific paving requirements extending into the facility site from CR 40. Additional infrastructure improvements will be addressed at the time of application for any future amended USR. Some of these improvements may include work extending into State or County Right -Of - Way in which case a Right -Of -Way or access permit is required. 3.0 Timing of Improvements: Subject to the provisions of Weld County Code Sec. 23-2-290 and any conditions or considerations granted by the Board of County Commissioners, Neither Property Owner and Lessee Property Owner and/or Lessee shall not be required to initiate the landscaping requirements until the occurrence of the triggering event for all improvements, namely the approval of the grading permit or an amendment to the existing USR. Except with prior County consent, no grading permit will be released until collateral is posted for all on -site and off -site improvements and the final Plat Map has been submitted to and accepted by the Department of Public Works. Access and/or Right -Of -Way permits might also be required prior to approval of the grading permit. Grading shall not commence until Plat Map is accepted. Any alterations to the accepted Plat Map must be accepted in writing by the County Planning and Public Works Departments. At that time, and unless otherwise amended, Property Owner and/or Lessee agrees that all landscaping and other on -site improvements, as indicated in Section D.2.0 above shall be completed within the parameters established in Section E.7.2 and Exhibit B. 4.0 Acceptance of On -Site Improvements: Upon completion of the on -site improvements, Property Owner or Lessee 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 described in Sections D.1.0 and D.2.0 above. The County's representatives may then initiate the process for "Acceptance of Improvements" set forth in Sections E.6.1-6.3. "End of Part 1" 3971485 Pages: 10 of 33 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO Ii Ii's�Y4h11111 Page S of 22 M:\PLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water-Sandau (USR12-0065) Part 1 -Site Specific Provisions- IA Final 2013 (S-7-13).docx IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Bruce Sandau, Robert Sandau, Bartels Family LLC and A & W Water Service, Inc. USR12-0065 Part 2: General Provisions E. General Requirements: 1.0 Engineering Services: Property Owner or Lessee shall furnish, at its own expense, all engineering services in connection with the design and construction of the improvements identified on the accepted Plat Map according to the construction schedule set forth in Exhibit "B," both of which are attached hereto and incorporated herein by reference. 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 the County for public improvements. 1.2 The required engineering services shall consist of, but not be limited to, surveys, designs, plat and profiles, estimates, construction supervision, and the submission of necessary documents to the County. 1.3 Property Owner or Lessee shall furnish construction drawings for the road improvements on public rights -of -way or easements and all improvements interior on the Property for approval prior to the letting of any construction contract. 2.0 Rights -of -way and Easements: Before commencing the construction of any improvements herein agreed upon for public rights -of -way or easements, Property Owner shall m acquire, at the sole expense of Property Owner and/or Lessee, good and sufficient rights -of -way and easements on all lands and facilities traversed by the proposed improvements. All such 41”N m rights -of -way and easements used for the construction of roads to be accepted by the County o w shall be conveyed to the County and the documents of conveyance shall be furnished to the N County for recording. 3.0 Construction: Property Owner and/or Lessee shall furnish and install, at its own expense, the improvements identified on the accepted USR12-0065 Plat Map, be solely responsible for the costs listed on Exhibit "A", and described in parts A and D of this agreement, which are attached hereto and/or incorporated herein by reference, with the improvements interior to the Property being completed by the dates set forth on Exhibit "B" (On -site), and improvements to public rights -of -way or easements being completed also in accordance with the schedule set forth in Exhibit "B" (Off -site). The Board of County Commissioners, at its option, may grant an extension of the time of completion set forth in Exhibit B stated herein upon application by the Property Owner and/or Lessee. Page 9 of 22 M:IPLANNING -DEVELOPMENT REVIEW\ -2012 Planning Referrals\USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water- Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).doex 3.1 Said construction shall be in strict conformance to the drawings accepted by the County and the specifications adopted by the County. 3.2 Property Owner and/or Lessee shall employ, at its own expense, a qualified testing company previously approved by the County to perform all testing of materials or construction; and shall furnish copies of test results to the County. If County discovers inconsistencies in the testing results, Property Owner and/or Lessee shall employ at its expense a third party qualified testing company approved by County. Such third party shall furnish the certified results of all such testing to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect, or to require testing and inspection of material and work, at Property Owner and/or Lessee's expense. Any material or work not conforming to the approved plat and specifications, including but not limited to damages to property adjacent to the construction plan area shall be repaired, removed or replaced to the satisfaction of the County at the expense of Property Owner and/or Lessee. 4.0 Release of Liability: Property Owner and Lessee shall indemnify and hold harmless the County from any and all liability loss and damage 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 said design and construction of improvements, and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. All contractors and other employees engaged in construction of the 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. 5.0 Warranty of On -Site and Off -Site Improvements: Property Owner and Lessee shall warranty all improvements to public rights -of -way, (if any), and all privately created and maintained roads or rights -of -way, or easements, and all on -site improvements for a period of two (2) years. The warranty period shall begin only after the County's execution of a written acceptance of the improvement(s). 6.0 Acceptance of On -Site and/or Off -Site Improvements by the County: Upon compliance with the following procedures by the Property Owner and/or Lessee, the improvements shall be deemed accepted by the County. 6.1 If requested by the Property Owner and/or Lessee and approved by the County, portions of the improvements may be placed in service when completed according to the schedule shown on Exhibit "B," but such use and operation shall not, alone, constitute an acceptance of said portions of the improvements. Page 10 of 22 M:\PLANNING-DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W SandathImprovements Agreement\AW Water - Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).doex 6.2 County may, at its option, issue building permits for construction for which the improvements detailed herein have been started but not completed according to the schedule shown on Exhibit "B," and may continue to issue building permits so long as the progress of work on the USR improvements in that phase of the USR is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Property Owner and/or Lessee. 6.3a Upon completion of the construction of the required off -site improvements, and the filing of a Statement of Substantial Compliance by Property Owner and/or Lessee's engineer, the Property Owner or Lessee may, as set forth in Paragraph A.9.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer shall, upon request of the Property Owner or Lessee, inspect the subject improvements, and notify the Property Owner and/or Lessee of any deficiencies. If any deficiencies are discovered, the Property Owner and/or Lessee shall correct the deficiencies. The County Engineer shall reinspect the improvements after notification from the Property Owner and/or Lessee that said deficiencies have been corrected. If the County Engineer finds that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. I 7 9 �03 r oi L. o 0 n1 Nara d 71. No �o c inmvm- epNo vea N...� r v— MeW� 6.3b Upon completion of the construction of the required on -site improvements, and the filing of a Statement of Substantial Compliance, when necessary, by Property Owner and/or Lessee's engineer, the Property Owner and/or Lessee may, as set forth in Paragraph D.4.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer and/or the Weld County Department of Planning Services shall, upon request of the Property Owner and/or Lessee, inspect the subject improvements, and notify the Property Owner and Lessee of any deficiencies. If any deficiencies are discovered, the Property Owner and/or Lessee shall correct the deficiencies. The County Engineer and /or the Department of Planning Services shall reinspect the improvements after notification from the Property Owner and Lessee that said deficiencies have been corrected. If the County Engineer and/or Department of Planning Services find that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer and/or the Page 11 of 22 M:\PLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W SandauUmprovements Agreement\AW Water - Sandau Site (USRI2-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx Department of Planning Services for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. 7.0 General Requirements for Collateral: 7.1 County requires Property Owner and/or Lessee to provide collateral to guaranty all of Property Owner and/or Lessee's obligations under this Agreement: (1) Project Collateral for completion of all improvements described in this Agreement shall be provided separately for on -site improvements and off -site improvements; (2) Warranty Collateral required for all improvements during the warranty phase; and (3) Road Maintenance Collateral (If Applicable) to be kept in place for the life of the permit. --c r V Ca — D r� o.—v.V mD y ) 0 v.) 3V. m o va v0 CYLL0 ccv 7 Xi 0 a. rozat m a71a Noo Moo' CON° ti -“Fa- ..ova °'imU,® 7.2 Project Collateral submitted to Weld County to guarantee completion of the improvements indentified on the accepted USR12-0065 Plat Map and further enumerated in the costs listed in Exhibit "A," must be equivalent to One -Hundred Percent (100%) of the value of the improvements as shown in this Agreement. Collateral for Off- site improvements that extend partially off -site as mentioned in Section A., 1.0 (if any) or D.2.0 of this Agreement that include only improvements involving turning radii and approaches can be included as part of the On -site collateral amount, if clearly delineated on accepted Plat Map and differentiated as "Entrance Improvements" on Exhibit "A" On -Site Improvements of this Agreement. This collateral must be submitted to County upon the submission of the Property Owner and/or Lessee's application of a grading, building, and/or right -of way permit, or at a time determined acceptable by the Board of County Commissioners, and shall be held in total by County as provided in Paragraph E. 7.3 below until all improvements have been completed. 7.3 Warranty Collateral for all on -site and off -site improvements shall be submitted to County and shall be held in total by the County for two (2) years following its written acceptance of the improvement(s). 7.4 In the event Property Owner and/or Lessee fails to adequately complete and/or repair improvements associated with this Improvements Agreement, County will access, in its sole discretion, Project or Warranty Collateral to the extent necessary to complete said improvements or repairs in order to preserve public interest. 7.5 Road Maintenance Collateral shall be submitted to County upon the release of the warranty collateral by the Board of County Commissioners or at the time of approval of this Agreement, if no Project Collateral was initially submitted. Road Maintenance Collateral is held for use on roads associated with the designated haul route. The amount of the collateral required for road maintenance shall be one percent (1%) of the initial Project Collateral listed on Exhibit "A" — Cost Sheet (OFF -SITE) of this Page 12 of 22 M:IPLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water- Sandal] Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx agreement. If no Off -Site Collateral is submitted, the amount of Road Maintenance Collateral shall be one percent (1%) of the initial Project Collateral listed on Exhibit "A"- Cost Sheet (ON -SITE). If no Project Collateral was initially submitted, Road Maintenance Collateral shall be submitted at the time of approval for this Agreement or at such time that approved USR12-0065 activities are initiated. The submitted amount shall be $3,600.00 for facilities adjacent to paved haul route roads or $2,400.00 for facilities adjacent to gravel haul route roads, and the amounts will be listed on Exhibit "A"- Cost Sheet (OFF -SITE). The amount of Road Maintenance Collateral submitted by Property Owner and held by the County shall be the greater of $3,600.00 for facilities adjacent to paved haul route roads or $2,400.00 for facilities adjacent to gravel haul route roads or one percent (1%) of the initial Project Collateral listed on Exhibit "A" — Cost Sheet (OFF -SITE). Road Maintenance Collateral shall be held by County as long as this Agreement is in effect and returned to Property Owner upon vacation of associated land use agreement or permit. The Road Maintenance Collateral will only be accessed by County, if following notification to Property Owner of required roadway safety related repairs, Property Owner fails to perform said repairs within the time allowed in County's notification. If any of this collateral shall be collected by County, Property Owner shall replace the amount, plus interest, within six (6) months. 7.5.1 Road Maintenance Collateral Option (For Materials Haulers): In lieu of cash collateral, Property Owner and/or Lessee may submit funds quarterly to Weld County, at a rate of ten (10) cents per ton, based on the amount of processed material leaving the site. These funds will be escrowed by the County and utilized for roadway repairs specific to the USR's designated haul route. The first payment of funds will be due three months after the initial sale of materials from the USR site. Subsequent quarterly payments will be deposited in the associated escrow account until the USR permit is terminated. Utilization of this collateral option will negate any further obligations of the Property Owner and/or Lessee and/or Applicant to participate in any future maintenance and/or improvements projects for the associated Haul Route. Upon vacation of the USR for this facility and following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining funds in the escrow account will be returned to the USR Permittee. 7.5.2 Road Maintenance Collateral (For Off -Site Dust Control — If Applicable): The total costs for materials and application, will be listed on Exhibit "A" (OFF -SITE) — Dust Control, of this agreement. These funds will be utilized by the County for roadway applications Page 13 of 22 M:IPLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water - Sandal] Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx specific to the USR's designated haul route, only if the Property Owner and/or Lessee does not adhere to the requirements for dust suppression as specified in Section A.6.0 of this agreement. Following completion of all construction phases, and/or upon vacation of this USR, and following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining Dust Control collateral will be returned to the USR Permittee. 7.6 Acceptable Project Collateral shall be submitted when the Property Owner and/or Lessee submits an application for the Grading Permit, Building Permit, or Right -of -Way Access Permit prior to commencement of Site Preparation, as herein defined. -s nr 0 U -• -a Nit §C. o— Uat ma DR w it _ o v ° Y lO lL o ,y: s v_ cr IONS aNv� NU—Baa o�� o3No� opNo N> N >— mmv— M 7.6.1 No grading or building permits shall be issued for any site related activities, on the property and no Site Preparation shall commence until cost estimates for all improvements are updated and collateral is provided in the amount of One -Hundred percent (100%) of the then current value of the improvements to be completed, and the development plat are revised to comply with all current County standards, policies and regulations, except with prior County consent. The improvements shall be completed within the time schedule set forth in Exhibit "B", which is attached hereto and made a part of this Agreement. "Site Preparation" shall mean earthwork grading or performance of work, or construction or installation of improvements related to Property Owner and/or Lessee's operations pursuant to USR12-0065 that require a grading or building permit from the County pursuant to the Weld County Code. In the event that the Improvements outlined in this Agreement and Exhibit A are not completed within one year of the execution of this Agreement Weld County may require Property Owner and/or Lessee to obtain current cost figures for one or more of the Improvements. 7.7 Collateral may be in the form of an irrevocable letter of credit (LOC) in an amount equivalent to one -hundred percent (100%) of the total value of the improvements set forth in the Improvements Agreement and the Plat; the LOC shall be subject to the requirements of Weld County Code Section 2- 3-30 B. The Property Owner and/or Lessee 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 Property Owner or Lessee upon request. 7.8 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 set forth in the Improvements Agreement and the Plat. The surety bond shall Page 14 of 22 M:\PLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water - Sandal Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx confonn to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. The Property Owner and/or Lessee shall utilize only a County approved form when obtaining a surety bond: (PERFORMANCE BOND FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said form shall be provided to Property Owner or Lessee upon request. 7.9 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 set forth in the Improvements Agreement. In the event the applicant is required to warranty the improvements, the Property Owner or Lessee shall replace the original deposit with a deposit in the amount of fifteen percent (15%) of the original amount and those funds shall remain available to the County until released by the County at the end of the warranty period. 7.10 The Board of County Commissioners reserves the right to reject collateral which is deemed inappropriate or insufficient, which may be either as collateral in the form of a letter of credit offered by a banking institution which does not have at least a "three star" rating given by Bauer Financial, or as collateral in the form of a performance bond offered by an insurance company which does not have at least a B+ rating given by A.M. Best. The Board further reserves the right to require Property Owner and/or Lessee to obtain replacement collateral if the rating of the financial institution providing said collateral drops below the levels stated above. Replacement collateral shall be submitted by Property Owner and/or Lessee within sixty (60) days of the Board's notice to Property Owner and/or Lessee that the rating has fallen and that the collateral must be replaced. Neither Property Owner nor Lessee may terminate existing collateral until replacement collateral has been secured. S 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 Property Owner or Lessee must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of Substantial Compliance shall state that the project or a portion of the project has been completed in substantial compliance with accepted plat and specifications documenting the following: 8.1 The Property Owner or Lessee's Engineer or his representative has made regular on -site inspections during the course of construction and the Plat Map utilized is the same as that 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 Colorado Depattnlent of Transportation (CDOT) Schedule for minimum materials sampling, testing and inspections found in CDOT Materials Manual. Page 15 of 22 M:\PLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandan\Improvements Agreement\AW Water - Sandal] Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx 8.3 "As -built "plat shall be submitted at the time the letter requesting release of collateral is submitted, and shall be stamped and approved by an Engineer registered in the State of Colorado, if an Engineer was initially required for the project. The Property Owner or Lessee's Engineer shall certify that the project "as -built" is in substantial compliance with the plat and specifications as approved, 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 appropriate, 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 the fire hydrants are in place in accordance with the approved plat. The letter shall indicate if the fire hydrants are operational and, if required by the County, state the results of fire flow tests. 8.6 The requirements in the paragraphs 8.0 through 8.5 shall be noted in the final Plat Map. 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 Property Owner and/or Lessee (if Property Owner and/or Lessee has supplied any or all of the collateral) 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. 8.8 Following the written request for partial release of the "Project Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the on -site and/or off -site improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the partial release of "Project Collateral". For all off -site and on -site improvements (including improvements to public rights -of -way or easements), the written 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. However, collateral for improvements fully accepted for maintenance by a responsible governmental entity, special district or utility company will be fully refunded to Property Owner or Lessee. 8.9 Following the written request for release of the "Warranty Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the on -site improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the conclusion of the Page 16 of 22 M:\PLANNING —DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water - Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx Warranty period. The "Warranty Collateral" shall be released to the Property Owner or Lessee following the expiration of the warranty period upon final written acceptance by the Board of County Commissioners. 8.10 For all off -site and on -site improvements (including improvements to public rights -of -way or easements), the written request for release of "Warranty Collateral" shall be accompanied by "Road Maintenance Collateral" (If Applicable) as specified in Section E.7.5 of this Agreement. "Road Maintenance Collateral" for roads associated with the designated haul route shall be maintained as long as the USR is active. 9.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Property Owner or Lessee without the express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. The release of the obligations of Property Owner and/or Lessee shall be accomplished only by County's execution of a new Improvements Agreement with a successor owner or successor lessee of the property. (See paragraphs F. 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 Property Owner and Lessee, 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 Engineer to act on his/her behalf 11.0 Violation of Terms of Agreement: If in County's opinion, Property Owner and/or Lessee has violated any of the terms of this Agreement, County shall notify Property Owner and Lessee of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which County believes constitute the violation. Property Owner and/or Lessee shall have fifteen (15) days within which to either cure the violation or demonstrate compliance. If, after fifteen (15) days have elapsed, County believes in good faith that there has been a violation of the terms of this Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of this Agreement. Violations of the terms of this Agreement include violations of the agreements contemplated by Paragraphs C. 4.0 & C. 5.0 of this Agreement, and a failure to enter into such Agreements in a timely manner. F. 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 upon a complete cessation of all activities permitted under USR12-0065 or any amendments thereto. A partial cessation of activities shall not constitute a Page 17 of 22 M:\PLANNING —DEVELOPMENT REVIEW -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water - Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).doex Termination of this Agreement, nor shall County's issuance of a partial release constitute a Termination. Property Owner or Lessee shall provide written notice to County 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 be three (3) years following County's observance of the cessation of activities, as provided in Sec. 23-2-200.E of the Weld County Code. 1.2 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR12-0065 by New Property Owner and/or Lessee: This Agreement shall terminate as to Property Owner or Lessee following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR12-0065 with a new Property Owner who has purchased the Property, or a new lessee who has taken over the Lessee's responsibilities and intends to make use of the rights and privileges available to it through 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 Property Owner and/or Lessee. If the County determines that pursuant to the terms of this Agreement, the Property Owner and/or Lessee must complete any of the improvements and/or road maintenance obligations outlined herein, 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 of the improvements have been completed. U at 5 Uo o9-: M Co PI wus— —e N Ittt` 0— in="2 qN �= a� v -r NUS M Nie coo No"0 — N ... = rev= M m Co® 2.2 Termination Procedures Pursuant to Transfer of Ownership of the Property or Transfer of Operations: If the Property Owner and/or Lessee desires to assign its rights and obligations under this Agreement to a successor Property Owner and/or Lessee, the Property Owner and/or Lessee shall, prior to the transfer, 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 Property Owner and/or Lessee shall either complete the improvements or post collateral equal to the cost of the completion of the improvements, if such collateral is not in place. If collateral is available at the time, County shall hold a hearing to determine whether the collateral should be called upon to pay County or a contractor of the County to complete the improvements. County shall also inspect the road(s) which are covered by this Agreement to assess the current condition of the road(s) and determine whether Property Owner and/or Lessee would be required to perform road maintenance within the following twelve months had the Agreement not been assigned. If Page 18 of 22 NI:\PLANNING — DEVELOPMENT REVIEW -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water- Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx road maintenance is, in the opinion of County, required, Property Owner and/or Lessee shall be required to either perform the road maintenance or to post collateral equal to the cost of said maintenance. County shall not execute a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR12-0065 with a successor Property Owner and/or Lessee prior to the performance of the road maintenance or the posting of collateral for said maintenance, unless the new Property Owner and/or Lessee posts collateral for the required maintenance. 3.0 Consequence of Termination by Cessation of Permit Related Activities: Following County's confirmation that Property Owner and/or Lessee has/have ceased all permit related activities and has/have completed previously uncompleted Improvements and or completed any required road maintenance, County shall release Property Owner and/or Lessee 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 — USR12-0065 with a Property Owner and/or Lessee. 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 — USR12-0065 with a successor Property Owner and/or Lessee, the predecessor Property Owner and/or Lessee shall have no further rights and/or obligations under this Agreement or in USR12-0065. 5.0 Consequence of Termination Pursuant to Paragraph E.11.0: In the event that activities related to USR12-0065 cease as a result of the revocation of the permit as described in Paragraph E.11.0 of this Agreement, neither Property Owner nor Lessee will be released from any of the obligations imposed by the terms of this Agreement until Property Owner and/or Lessee successfully complete all improvements required under this Agreement or until County accesses the collateral to the extent necessary to complete improvements County, in its sole discretion, deems necessary to preserve public interests. 3. 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 I. or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as 4t applicable now or hereafter amended. o -Ls .� H. Enforcement: If, in the County's opinion, Property Owner and/or Lessee has violated any of the terms of this Agreement, County shall notify Property Owner and Lessee of its belief 8 that the Agreement has been violated and shall state with specificity the facts and circumstances m� which the County believes constitute violation. Property Owner and/or Lessee shall have thirty M 03z "Im - (30) days within which to either cure the violation or demonstrate compliance. If, after thirty v% it � (30) days have elapsed, County believes in good faith that a violation of the terms and conditions ?la v of this Agreement still exists (despite cure), County may enforce by any legal means, including, cep "= but not limited to, legal action for equitable or monetary relief filed in the Weld District Court, ma mi.. execution upon submitted collateral (if applicable), and/or administrative action of the County to M N suspend or revoke the underlying land use permit or approval pursuant to the procedural Nu 3 provisions of Section 2-4-40 of the Weld County Code. Violations of the terms and conditions ti of this Agreement include, but are not limited to, violations of the agreements Property Owner ooppN o Page 19 of 22 M:IPLANNING -DEVELOPMENT REVIEW -2012 Planning Referrals \USR12\USR12-0065 A&W Soudan \Improvements r \ > o Agreement\AW Water - Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx M m All and/or Lessee must enter into as required by this Agreement, and/or failure to enter into such agreements in a timely manner. I. 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. J. Authority to Sign: Each person signing this Agreement, and associated Exhibits, represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. If requested by the County, Property Owner and/or Lessee shall provide the County with proof of Property Owner and/or Lessee's authority to enter into this Agreement within five (5) days of receiving such request. 3971485 Pages: 22 of 33 10/17/2013 12:12 PM R Fee:$0,00 ®III N�e 0111'�3Ii!Clerk iWI;a6Recorder,!Vicki ItHJj,eld 'iC0 � i+iY{ h ®1111 Page 20 of 22 M:\PLANNING—DEVELOPMENT REVIEW' -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement \AW Water - Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (S-7-13).docx IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. ("CC PROPERTY OWNERS: 6 s P a w U SIGNATURE &t T71eA /� r."3" PRIN I'ED NAME Sr G C TITLE (If Applicable) d14f/,riti2< STATE OF COLORADO County of Weld The foregoi e/] strume 2013, by NOTARY NSW STATE OF COLORADO WITNESS my hand and official seal. My commission Expires: SIGNATURE PRINTED NAME ) ) ) Ss. owledged before me this( Jr day of (/°' Notary Public NOTARY ID 20124050448 MY COMIARSION ERPIRCS JULY 31.2016 AL, 3/,a-O/(p ' lC cSc e Lyda K EJ e(cLt i TITLE (If Applicable) 05 le 0/20/ STATE OF COLORADO County of Weld ss. The foregoing instrument was acknowledged before me this day of _ 2013, by WITNESS my hand and official seal. Notary Public 3971485 Pages: 23 of 33 My commission Expires: 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder Weld County, CO 1III krat7PirlIN IN,, Rif IV4'r,F''. 411,4 MINI Page 21 of 22 M:\PLANNING - DEVELOPMENT REVIEW\ -2012 Planning Referrals \USR12\USR12-0065 A&W Sandau\Improvements Agreement\AW Water -Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).docx ) ) ) LESSEE: SIGNATURE PRINTED NAME vnifiF 14.66wr TITLE ,OPER 72rOn 1en'e9c Et STATE OF COLORADO SS. County of Weld The foregoing instrument was acknowledged before me this 13 day of 2013, by „,1,*6 w WITNESS my hand and official seal. My co 2 Notary lic 442410--) • •\ it listo/xO14.1 i J 41„*%A •OZlBO a1/4 My Commission Expires 01126/2014 ATTEST: Weld County Clerk to the Board BY: APPROVED AS TO FORM: ounty Attorney BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Douglas R'ademacheF, Chair projefp SEP 3 0 2013 Page 22 of 22 M:\PLANNING -DEVELOPMENT REVIEW\ -2012 Planning Referrals \USRI2\USR12-0065 A&W Sandau Improvements Agreement\AW Water - Sandau Site (USR12-0065) Part 2 -General Provisions -IA Final 2013 (8-7-13).doex &D/3-- 6276c? EXHIBIT A - Cost Sheet (OFF -SITE) /Name of Facility: �� ''�''-�' '; .. „ L n 4 2 �h,. ,�/. , : i �: f , Filing/Case #: it".; / i r, _� -, Location: / c.- 6'""° w Personnel Contact: Name ,'�y`+`�` "'„ Title: Phone: • fir+ fl r' ;" .r /: Intending to be legally bound the undersigned Applicant hereby agrees to provide throughout thisIncility theJollowing improvements Improvements (Leave spaces blank where they do not apply) (OFF -SITE) Quantity Units Unit Costs ($) Estimated Construction Cost ($) .,PUBLIC WORKS.. Site Grading Street Grading/ ,o4 43.06e /,',>,v9,9 �J ,_ } ,f. Street Base, Gravel for Parking 1. O /;; t; r f,;,.,1' ?. «, -t,y .; G/ O A,, :a Street Paving ',; , l ,;�:. k� c-__ i (, ��r ,,° ",.;1, • Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert 1 - .` d.s''' . k a P 7,5'0 O 6941 Grass Lined Swale p �� •-.1„,P.:!.71,-/>r d � Ditch Improvements Subsurface Drainage Entrance/Access Improvements Erosion Control Measures/BMP's Road Maint. Collateral (per Sec. E.-7.5) - , .A 1 ,,,1„ a'A ,I. u •-,�:` Dust Control (per Sec. E.-7.5.2) Fire Hydrants Survey, Street Monuments/Boxes PLANNING SERVICES., Parking Area, Curb Stops, Bus Kiosks Street Lighting Street Names Signage Fencing Requirements 3971485 Pages: 25 12:12 PM P Fee Clerk and Recorder, I' I1[. r. oil of 33 :$0 $0.00 `'IW�eld County, CO kit 'AK: Imo Landscaping, Seeding, Trees, etc. 10/17/2013 Steve Moreno, Park Improvements ■ it RI��ola II Li I II I Handicap Accessibility, Parking & Rails Septic Systems SUB -TOTAL: z" _, J ,= ;r , , �r� ,. (l estmg, inspection, as-6ua1t plans and work in adcition Engineering and Supervision Costs ($) `iD+y � f, 0 .* final plat; supervision of actual construction to preliminary and by contractors) . K 4' -i., „`p ty:;9 b's ''' 2 44 - t1 r� TOTAL ESTIMATED COST OF IMPROVEMENTS, ENGINEERING AND SUPERVISION (5) EXHIBIT A - Cost Sheet (OFF -SITE) - Signature Page The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this provision shall be determined solely by Weld County, or its duly authorized agent. Said improvements shall be completed according to the construction schedule set out in Exhibit B By: /`/ice 1JHnie gi€4&CE Applicant OPEiR'rsedvc /44/9//19(itie Title p 0 r By: ,,egG 4-/3' ,.r , /7 2z ct Applicant p Title Date y1/ , 20 /3 Date / f ,20 13 3971485 Pages: 26 of 33 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO VIIIR1�1!��ll hipil4ui�iV�Di4'A*FA POI lilt11III Personnel Contact: Name - t Name of Facility: 'Aar? do liT / 43,,r de"o Title: 41Y;) 4; ;i Locations :'. , Phone: ; _' ‘- ;•QAf 1341'(, 4.r Intendtne to be legally bout: the undersigned Applicant hereby agrees to provide throuehout this facility thejollowioR improvements. Improvements (Leave spaces blank where they do not apply) : ciAr.:, j'Z'E. - = = :: ` Ouantity Units Unit Costs ($) Estimated Construction Cost ($) IPUBLIC WORKSJ, j' Site Grading i. A 'f�.;„,: `-;' ` h t1,`•r ) ) .. ` (• ' Street Grading 5 I',. 1 ;.'� , , , , ', ', . ;. ;':'17,0, ✓1 6 , Street Base, Gravel for Parking =` / ., �, -s:° = } ' ., s.3 Street Paving Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Pages: 27 of 12:12 PM R Fee :$0 Clerk and Recorder, :1i1 ` �I i a I`si:Ii,ilrI��,W`lI�� 33 .00 Weld County, CO i� Li th Li Entrance/Access (per Sec. E.7.2) 3971485 10/17/2013 Erosion Control Measures/BMP's Steve Moreno, III Nildr��J, RY I Road Maint. Collateral (per Sec. E.7.5) �� 0i Dust Control (per Sec. E.7.5.2) Fire Hydrants Survey, Street Monuments/Boxes , - J,PLANNING SERVICES J, Parking Area, Curb Stops, Bus Kiosks Street Lighting Street Names It Sign age J =., 5 >G, �� , s ..' , ; ., ; Fencing Requirements ;1 : ' .; :. ,s;,e i ' = Landscaping, Seeding, Trees, etc. : 3,. a i, Park Improvements Handicap Accessibility, Parking & Rails Septic Systems SUB -TOTAL: 7;,,...„ c../5",- ( testing, inspection, as *udt plans and work in aduution to preliminary and Engineering and Supervision Costs ($) t 4 \ ,C:1 i. $J% final plat; supervision of actual construction by contractors) VA. '6 b a Q TOTAL ESTIMATED COST OF IMPROVEMENTS, ENGINEERING AND SUPERVISION (S) .............................................................. PH BIT A � Cast:Slieet (OM-SETE):L; >ark 'age ::::::... . The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this provision shall be determined solely by Weld County, or its duly authorized agent. Said improvements shall be completed according to the construction schedule set out in Exhibit B By: afl lAktE6[ Sig are( Applicant By: Opeta'h;ns /t1aza5er Title eb Pr?s4sn/xu )1 CSI '. yr,L,r� )S0t/s/s Fe ZGG Applicant Title Date efh ,20 a Date et/ , 20 /3 3971485 Pages: 28 of 33 10/Steve Moreno, 3 12:12 lerk PM and Recorder, W0 Weld Count 1111 F:1R, l! If��l�4�t1 ��:��6 t�'�N a� County, CO Y4rh II11 EXHIBIT B - Time Schedule (ON -SITE) & (OFF -SITE) ) Name of Subdivision, PUD, USR, RE, SPR: 4' Filing/Case #: Location:,. Intending lobe legally bound, the undersigned Applicant hereby agrees to provide throughout this facility the following improvements. All improvements shall be completed within years from the date of approval of the final plat. Construction of the umprovements listed in Exhibit A shall be completed as follows: Improvements (Leave spaces blank where they do not apply) Time Schedule O( N SITES (OFF -SITE, ,,PUBLIC WORKS, Site Grading r , t Street Grading Street Base, Gravel for Parking Street Paving Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Entrance/Access Erosion Control Measures/BMP's Fire Hydrants Survey, Street Monuments/Boxes 3971485 Pages: 29 of 33 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerkand Recorder, Weld County, CO ` III III ��r��i' ��I�•' ill�'�:lti�ir ,'OIR�1�� I�iii �I II I Parking Ariea, Curb StoG ps, Bus Kiosks iiir��, l Street Lighting Street Names Signage Fencing Requirements Landscaping, Seeding, Trees, etc. Park Improvements Handicap Accessibility, Parking & Rails Septic Systems 4 Final Completion Date for Entire Proiect z ' EXHIBIT B - Time Schedule- Signature Page The County, at its option, and upon the request of the Applicant, may grant an extension of time for completion for any particular improvements shown above, upon a showing by the Applicant that the above schedule cannot be met. By: a_ .4/h) /N97EL ≤Ethan Applicant By: Title /QO4P. / - 4 HZt 73 c,' 3;0 L._ /3,,../e/s F49 Cr <�GG c Applicant /74,a///al /C Title Date Vie ,20 Date f —l9 — 20 /S 3971485 Pages: 30 of 33 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ®IIIM��1l�RriL Ifill ImItgilliahlUWork ®I III O:\New Version Agreement\Exhibits\2013\Exh B Time Schedule-FINAL(2013).xlsx 4 KW 'MI WO 'AL a 9 A / HON 123 *OISIIC MIS Al 2W 7 tit DTI ‘SiNd13nSN03 S33 4 ft f . s J : USR 12-0065 LL1 SANDAU USE BY SPECIAL FOUR (4) NORTH, a_ x rn z 0 > L W N W ZFI- 0 W� 03 x Q to W O C.1 z F W 3 F=- O N W S F LL O z 0 O a e z " to w fL 3 Z v ro 4✓0 49'43" E OUJNER: 5ANDAU OWNER: ULRICI4 USR BOUNDARY = 2.25 AC. N N 00V210103 'A1N(103 013M 1S3M 99 3`JNV23 `H1210N b d1HSNM01 `CZ N01133S NVld 1N3Nd013A30 313133dS 311S MS(1 a31VM IWV S900—Zt asn a31VM M)BV J lU 3 0 OWNER: SANDAU .0£I 9 a9,9tro00 9 FLOW Tom° S� Q FLOW 0m 2 a a73Q ZO WX[ 0 , � 4 N 00 0 -U - ,09Z itt 19E.9tr o00 N (710 -el ,00) 5£ CVO J.1NnOO 1 3 co COUNTY ROAD 40 (60' R.O.W.) OWNER: BERIG of E 0 N II 0 N ID M n 0 DRAWING INFO. 9a A N Lei € N H U nwo o`�wo. .ndn nk w.o. -. „L Olt `S1NYllfSNOO S30 4 z Ui 0 0 cN (n O W LY BY SPECIAL w Li 0 0 0 0 -99 c a z z 0 F- N • va LC L > H C. 90 iv F z X • Co u z r O I. O r m 1. W O s c Cp O, CO • X CO CO Co r in W X W Z Q CO CoL W 3 O Co A PORTION OF THE 00Vi10103 'A1N000 013M IS3M 99 30NVd 'HIN0N V dIHSNM01 'SZ N01103S NVId IN3INd013A30 DUI03dS 3115 dS0 2131VM M'3V 9900-Z1 ilSfl 2131VM WRY 3971485 Pages: 32 of 33 10/17/2013 ur12:12 PM RLLFe{Ie::$,j0�..0J0Steve Moreno, rJ,,�I�, j�{J f�,` IIIII fII'%IpII : �4�ik 'i� I�+Rei 1 Itd i' WY9fi�lry li�ll iLl,� Mika, II II I e a N 0 SLOPE TO DRAIN 00 0 0 0 12" MIN. CLASS 6 ROAD EASE UNDISTURBED SOIL 14 Ps et -4r - f%' GCJ ,V e. Se re -1 GRAVEL SECTION 3971485 Pages: 33 of 33 10/17/2013 12:12 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■1111cra1'AllifPAW I,U,%I ' PHI Hello