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Home My WebLink About20130092RESOLUTION RE: ACTION OF BOARD AT INITIAL HEARING CONCERNING RESCINDING USE BY SPECIAL REVIEW PERMIT #1709 - 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 Board approved the application of Suncor Energy (USA) Pipeline Company, Attn: Terrence Larson, 1715 Fleischli Parkway, Cheyenne, Wyoming 82001, for a 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, on the following described real estate, being more particularly described as follows: Lot A of Amended Recorded Exemption #2918; being part of the NW1/4 of Section 20, Township 2 North, Range 66 West of the 6th P.M., Weld County, Colorado WHEREAS, the Department of Planning Services notified the applicant of outstanding Conditions of Approval and items to be completed prior to recording the plat, by letters dated August 4, September 26, and December 22, 2011, and WHEREAS, on the 11th day of January, 2012, an Initial Hearing was held before the Board to consider granting additional time to meet all of the conditions/requirements of approval and record the plat, or to set a Final Determination Hearing to Rescind approval of Use by Special Review Permit #1709 and Deny the application, and WHEREAS, at said hearing on January 11, 2012, Suncor Energy (USA) Pipeline Company was not present, and WHEREAS, after hearing all testimony presented, the Board deemed it advisable to grant the applicant additional time to meet all of the conditions/requirements of approval and record the plat and continued the matter to March 12, 2012, and then to May 14, 2012, and then to July 16, 2012, and then to October 15, 2012, and then to January 7, 2013, at 9:00 a.m., and 2013-0092 PL2029 INITIAL HEARING CONCERNING RESCINDING USR #1709 - SUNCOR ENERGY (USA) PIPELINE COMPANY PAGE 2 WHEREAS, on January 7, 2013, after hearing all testimony presented from staff and Suncor Energy (USA) Pipeline Company representatives, the Board deemed it advisable to refer the matter back to Planning Services Staff for completion. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the application be, and hereby is, referred back to the Department of Planning Services staff to work with the applicant to complete the conditions/requirements and record the plat. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 7th day of January, A.D., 2013. ATTEST: Weld County Clerk to the Board BOARD OF COUNTY COMMISSIONERS WELD QC NTy, COLORADO William F. Garcia, Chair County Attorney EXUSED Barbara Kirkmeyer JAN 2 3 2013 Date of signature: 2013-0092 PL2029 MEMORANDUM TO: Weld County Commissioners DATE: January 7, 2013 FROM: Chris Gathman 4 A SUBJECT: USR-1709 Status Timeline: • Approved by the Board of County Commissioners 12/16/2009. • 7/2010 - Extension to record the plat granted by the Board of County Commissioners until 12/31/2010. • 12/17/2010 - Extension to record the plat granted by the Board of County Commissioners until 6/30/2011. • Late plat notification letter sent via certified mail 8/4/2011. • Certified mail receipts received 8/9/2011, 8/10/2011, 8/16/2011. • Letter to Board of County Commissioners from Jim Borgel — Holland & Hart requesting a worksession to address outstanding issues on the improvements agreement. • 2nd Late plat notification letter sent via certified mail 9/26/2011. • Certified mail receipts received 10/3/2011, 10/4/2011 & 10/6/2011. • 3rd late plat notification letter sent via certified mail 12/22/2011. • Certified mail receipts received 12/28/2011 & 12/30/2011. • E-mail sent to J. Borgel 3/2/2012 requesting status of USR-1709. • E-mail response from J. Borgel received 3/5/2012. • E-mail response from J. Borgel received 3/12/2012 indicating that a response from the manager of the project is still pending. • Proposed amendments to Improvements Agreement submitted by J. Borgel on behalf of Suncor 4/2/2012. • Letter response to J. Borgel from Stephanie Arries dated 4/23/2012. • C. Gathman sent e-mail 5/4/2012 to J. Borgel & Blaine Ayers requesting additional information re: pumphouse/office proposed on the west side of the parcel that the Suncor facility is proposed (USR-1709). • E-mail response from Blaine Ayers to C. Gathman re: pumphouse/office received 5/4/2012. • Board of County Commissioners Worksession with Suncor representatives re: improvements agreement 6/20/2012. • E-mail from J. Borgel — Holland & Hart indicating Suncor intends to proceed with an exemption to separate the USR-1709 operation from the remainder of Lot A of AMRE-2918. • R. Hastings & C. Gathman met with Kelly Rowland Suncor at County Road 20 site re: potential future plans for the parcel on 8/6/2012 • Improvements agreement with proposed revisions submitted by J. Borgel on behalf of Suncor on 10/2/2012. • Response from Stephanie Arries back to J. Borgel 10/10/2012. • Tetra Tech (on behalf of Suncor) submitted a recorded exemption application to divide USR-1709 from the remainder of Lot A of AMRE-2918 on 10/11/2012. Staff reviewed the recorded exemption application and determined that a subdivision exemption application would be required. • A subdivision exemption application (in place of a recorded exemption) was submitted by Tetra Tech on behalf of Suncor on 11/8/2012. • Final revised version of improvements agreement sent to Jim Borgel by Stephanie Arries 12/17/2012. • Subdivision Exemption conditions of approval completed and e -mailed to Tetra Tech on 12/20/2012. • Jim Borgel e-mail response from Jim Borgel dated 1/2/2013 indicating that Suncor is acceptable with the 12/17/2012 version of the improvements agreement. • E-mail from Pam Flora dated 1/3/2013 outlining the status and timeline on finalizing the subdivision exemption plat and USR plat for USR-1709. Remaining Outstanding Conditions of Approval: All conditions of approval have been addressed with the exception that 1) the improvements agreement needs to be finalized, submitted and accepted by the Board of County Commissioners and 2) Finalize the exemption to separate the proposed USR-1709 improvements from the remainder of Lot A of AMRE- 2918 3) the final USR plat needs to be finalized and submitted for recording. The latest draft of the improvements agreement prepared by the County has been agreed upon by Suncor and Tetra Tech is in the process of finalizing the subdivision exemption and USR plats for the Suncor facility. Staff Recommendation: The applicant is in the process of addressing the remaining items of approval for USR-1709 and these should be completed in the next one to two weeks. Staff recommends referring this USR back to staff. Esther Gesick From: Sent: To: Subject: Chris Gathman Sunday, January 06, 2013 6:38 PM Esther Gesick; Karla Ford; Barbara Kirkmeyer; Mike Freeman; William Garcia; Douglas Rademacher; Sean Conway FW: USR-1709 Status update for Monday 9 AM 1/7 Board Meeting item. Status updated for USR-1709. Sincerely, Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Hora, Pam [mailto:Pam.Hora@tetratech.com] Sent: Thursday, January 03, 2013 4:31 PM To: Chris Gathman Cc: Cozad, Julie; 'James Borgel'; Stephanie Arries; David Bauer; Janet Carter Subject: RE: Suncor Hi Chris, This is in follow-up to our conversation that we just had in order to keep everyone in the loop. Your dates are all correct. We have Civil Arts working on preparing the SE plat map per your comments provided on 12/20; however, we won't have that from Civil Arts until Tuesday 1/8 (having the holidays fall in there slowed things down). I will probably have a first draft of the SE plat to you to review by Wednesday, 1/9. I have a call in to Janet Carter to coordinate with her on the access permit to make sure I get her everything she needs to be able to issue that permit. Once the permit is issued, we will be showing the permit number on both the SE plat and USR plat maps. It is our understanding that this is enough information for you for the hearing on Monday. If you have any questions, let me know. Thanks, Pam Pamela Franch Flora, AICP pam. horaOtetralech. corn 1 www.tetratech.com From: Chris Gathman [mailto:cgathman@co.weld.co.us] Sent: Thursday, January 03, 2013 3:40 PM To: Hora, Pam Cc: Cozad, Julie; 'James Borgel'; Stephanie Arries; David Bauer Subject: RE: Suncor Pam, So everybody is on the same page regarding the subdivision exemption. In searching my records — the SE12-0027 staff recommendation was sent out 12/20 and my last correspondence with you was on 12/21. I have not seen a draft SE plat nor a revised USR-1709 plat showing the revised legal description for USR-1709. I would need to see pdfs of these plats to review. At this point I am going to recommend that the Board of County Commissioners refer the USR-1709 case back to staff— at the Monday 1/7 hearing. We are close enough to wrapping this up that I don't feel another hearing before the Board of County Commissioners is needed. Sincerely, Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Hora, Pam [mailto:Pam.Hora@tetratech.com] Sent: Thursday, January 03, 2013 3:14 PM To: Stephanie Arries; James Borgel Cc: Chris Gathman; 'lacy Rock (frock@suncor.com)'; Janet Carter Subject: RE: Suncor I have a call in to Janet Carter to coordinate with her to make sure she gets what she needs for the access permit application. In addition, Julie and I are going to try and call Chris in about a half hour to touch base about the status of the SE plat and USR plat. 2 Thanks, Pam Pamela Franch Hora, AICP pant hora(ahtetratech.com www.tetratech.com From: Stephanie Arries[mailto:sarriesCalco.weld.co.us] Sent: Thursday, January 03, 2013 2:30 PM To: James Borgel Cc: Hora, Pam; Chris Gathman; lacy Rock (irock©suncor.com)' Subject: RE: Suncor Sounds good Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries@co.weld.co.us jan STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel[mailto:JBBorgel©hollandhart.com] Sent: Thursday, January 03, 2013 2:29 PM To: Stephanie Arries Cc: Pamela Franch Hora (pam.hora©tetratech.com); Chris Gathman; 'Jacy Rock (jrock@suncor.com)' Subject: RE: Suncor Thanks, Stephanie. Pam Hora at Tetra Tech has been processing the plat exemption with Chris has also been working on the access permit. I am copying her and Chris on this e-mail so they can update us on the status. Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 3 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgeWhollandhart.com HOLLAND&HART IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. From: Stephanie Arries [mailto:sarries©co.weld.co.us] Sent: Thursday, January 03, 2013 1:49 PM To: James Borgel Cc: Chris Gathman; David Bauer; Janet Carter; Heidi Hansen; Richard Hastings Subject: Suncor Jim As I mentioned in my previous email, there are a few items which still need to be addressed by Suncor relative to the subdivision. The company needs to submit an access permit explaining how it intends to use the existing access points it has. Therefore, the company needs to determine if it wishes to relocate an existing access or change the use of an access - or just leave things as they are. Whatever Suncor's intentions are, they need to be communicated to Weld County. The person in charge of access permits is Janet Carter, and she has been copied on this email so that you may communicate with her. You should speak with Chris Gathman, as well, so that he can confirm with you that there are not going to be any further delays. Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries(a.co.weld.co.us STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are 4 Esther Gesick From: Sent: To: Subject: Chris Gathman Sunday, January 06, 2013 6:43 PM Esther Gesick; Karla Ford; Barbara Kirkmeyer; Mike Freeman; William Garcia; Douglas Rademacher; Sean Conway FW: Spindle C Improvements Agreement (JB Revisions 11-30-12).DOCX;Weld County Comments_Spindle C Improvements Agreement (County-Clrean Version) -Spindle C Improvements Agreement (JB Revisions 11-30-12).DOC See below. Suncor OK (no more revisions proposed by them) of the draft improvements agreement. Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Stephanie Arries Sent: Wednesday, January 02, 2013 2:29 PM To: James Borgel Cc: Chris Gathman; David Bauer Subject: RE: Spindle C Improvements Agreement (JB Revisions 11-30-12).DOCX;Weld County Comments_Spindle C Improvements Agreement (County-Clrean Version) -Spindle C Improvements Agreement (JB Revisions 11-30-12).DOC Jim Right now the matter is set for a revocation hearing on Monday — so plan to be there I spoke with Chris Gathman and he told me that the USR Plat and the Subdivision Plat need to be submitted to him for recording. He understands that the plats are close to finalization, but they have not been provided to him. As the Improvements Agreement is now essentially finalized, and we just need to have the legal description formally finalized by the approval of the subdivision and the recording of the plats, Suncor is well on the way to compliance —but the Agreement is not ready to present to the Board until the subdivision process has been completed. That said, if there are no additional issues, Chris plans to recommend that the Board not revoke the USR and that the matter be referred back to the Planning Department for finalization of the process and the documents. 1 I have copied Chris Gathman and Dave Bauer on this email to allow them to add any other information they feel is important. You WILL need to appear on Monday morning for this hearing, even though Chris intends (if nothing else comes up) to recommend against revocation, because the Board retains the final say in this matter and his recommendations are not binding on the Board. Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries(&co.weld.co.us STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel[mailto:JBBorgel©hollandhart.com] Sent: Wednesday, January 02, 2013 2:09 PM To: Stephanie Arries Subject: RE: Spindle C Improvements Agreement (JB Revisions 11-30-12).DOCX;Weld County Comments_Spindle C Improvements Agreement (County-Clrean Version) -Spindle C Improvements Agreement (JB Revisions 11-30-12).DOC Stephanie: We are fine with your changes to the Improvements Agreement. Will this be going before the board on Monday for approval? Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgel(olhollandhart.com HOLLAND&HART IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain 2 provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. From: Stephanie Arries [mailto:sarries@co.weld.co.us] Sent: Monday, December 17, 2012 3:31 PM To: James Borgel Cc: 'Jacy Rock (frock@suncor.com)'; David Bauer; Chris Gathman; Richard Hastings Subject: RE: Spindle C Improvements Agreement (JB Revisions 11-30-12).DOCX;Weld County Comments_Spindle C Improvements Agreement (County-Clrean Version) -Spindle C Improvements Agreement (JB Revisions 11-30-12).DOC Jim Attached you will find the County's changes and comments The County is not willing to accept blank Exhibit A forms. The Exhibit A for both On -Site and Off -Site Exhibits must be completed at this time. It is often the case that these exhibits need to be amended to reflect changes in costs when the Applicant waits a long period before developing the USR site; however, Weld County established the improvements to be made in these improvements agreements at the time of execution. There were inconsistencies with references to the road as being asphalt and concrete, so the change was made to the agreement establishing the road as concrete. The language was also modified to show that the obligation for ongoing maintenance of the road will cease only after the construction has been completed and the warranty period has elapsed. Jim County officials are comfortable with this version, and expect that this will be the final version. Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries@co.weld.co.us STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly 3 prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel[mailto:JBBorgel@hollandhart.com] Sent: Thursday, December 13, 2012 3:28 PM To: Stephanie Arries Cc: lacy Rock (frock@suncor.com)' Subject: Spindle C Improvements Agreement (JB Revisions 11-30-12).DOCX;Weld County Comments_Spindle C Improvements Agreement (County-Clrean Version) -Spindle C Improvements Agreement (JB Revisions 11-30-12).DOC Stephanie: A clean and a redlined version of the Agreement you sent over earlier today is attached. The redlining shows the changes to your version, which are primarily intended to clarify how to prepare and attach the missing exhibits when they are ready, and to clean up the agreement and get it ready for signature. We would like to get this resolved (as I'm sure you do too) so it can be presented to the BOCC on the 7th. If you have any additional revisions, I would appreciate it if you would use track changes on the clean version, as it will be easier for us to review those changes without having our own redlining in the document. Thanks, Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: ibborciel@hollandhart.com HOLLAND&HART IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. 4 Esther Gesick From: Sent: To: Subject: Chris Gathman Friday, October 12, 2012 10:22 AM Esther Gesick; Karla Ford; Debbie Heffel FW: Suncor Spindle C Another item of correspondence for the Monday's Suncor (USR-1709) meeting. Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Stephanie Arries Sent: Friday, October 12, 2012 7:52 AM To: Chris Gathman Subject: FW: Suncor Spindle C From: James Borgel[mailto:JBBoreelehollandhart.com] Sent: Wednesday, July 25, 2012 9:35 AM To: Stephanie Arries; David Bauer Cc: Richard Hastings; Chris Gathman Subject: RE: Suncor Spindle C Stephanie: After a bit of deliberation, Suncor has determined to move forward with the plat exemption for the 12 acres that will be subject to the USR-1709 permit, although we are doing so under protest as I still believe that this is an unnecessary expense and is inconsistent with all of the proceeding related to the USR, including the resolution of approval. I have contacted Julie Cozad at tetra Tech to get the submittal process for the plat exemption started. I believe that Dave and Chris have heard from Kelly Gleason regarding the schedule for a site visit in the near future. If I can do anything to facilitate that visit, let me know. 2013-0092 Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: ibborgel@jhollandhart.com HOLLAND&HART A IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. From: Stephanie Arries [mailto:sarries@ico.weld.co.us] Sent: Monday, July 09, 2012 11:15 AM To: James Borgel; David Bauer Cc: Richard Hastings; Chris Gathman Subject: RE: Suncor Spindle C Jim Dave is on vacation —although he is checking emails. He had an alternative idea he wanted to have Rich Hastings discuss with Kelly Gleason when they got a chance to meet and walk the site. Also Chris Gathman wanted to walk the site with Mr. Gleason to sort out issues concerning the plat. Chris intends to ask the Board to set out the July meeting for 30-60 days. To give everyone a chance to consider Dave Bauer's idea and to finalize the issues concerning the plat. Also, the County still needs to know whether Suncor wishes to subdivide the parcel, or leave the matter as it stands, with to USR covering the entire parcel. Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries{cilco.weld.co.us 2 STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel[mailto:JBBorgelehollandhart.com] Sent: Monday, July 09, 2012 10:57 AM To: David Bauer Cc: Stephanie Arries Subject: Suncor Spindle C Dave: Just checking in to see if you have had a chance to pull together any info on the standards that would be applied to Suncor's maintenance obligations in relation to their Spindle C project. Kelly Gleason is going to be in Denver next week and it would be good if we could review your information while he is here. Thanks, Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgelCalhollandhart.com HOLLAND&HART IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. 3 Esther Gesick From: Sent: To: Subject: Attachments: Chris Gathman Thursday, October 11, 2012 4:12 PM Esther Gesick; Karla Ford; Debbie Heffel FW: Weld County Comments_Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX Spindle C Improvements Agreement (Redline) Borgel 10-12 sa comments.DOCX One more item for USR-1709. Thanks! Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Stephanie Arries Sent: Wednesday, October 10, 2012 9:10 AM To: James Borgel Cc: Chris Gathman; David Bauer; Bruce Barker Subject: RE: Weld County Comments_Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX Jim The Agreement has been reviewed and the County is responding with its comments. David Bauer, Director of Public Works is requiring that there be language in this agreement addressing the Applicant's construction of the cement road, and eliminating the requirement for ongoing maintenance, if that is what the Applicant has decided to do. The County does not wish to renegotiate this matter in the future. If the Applicant is undecided at this point, the County is willing to insert provisions describing the specifics of this option. — Please let us know what the Applicant has decided to do. Finally, I have confirmed with Bruce that the liability language inserted here is the language the County is requiring 1 Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries(aco.weld.co.us Sn STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel[mailto:JBBorgel©hollandhart.com] Sent: Tuesday, October 02, 2012 11:35 AM To: Stephanie Arries Cc: Chris Gathman; David Bauer Subject: Weld County Comments_Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX Stephanie: Attached for your review is a revised version of the Improvements Agreement relating to the Suncor Spindle C property. The attached redlined version shows the very few minor changes that we are proposing to the last version received from the County, based on our last set of meetings and the site visit with Kelly Gleason. As you will see, with a few minor revisions, we have accepted the County's proposed language on proportionate share and on the need for Suncor to make certain road repairs. One item that still needs to be developed is the description of the Off -Site Improvements to be built by Suncor. I understand that Kelly and Dave have agreed in principal that the road will be built to a standard that will be able to handle the anticipated truck traffic. Is that something that the County will prepare, or should we ask our engineers to provide? Finally, Suncor has agreed that they will pursue a plat exemption for the property to address your concern that the proposed USR does not cover the entirety of the (approx.) 35 acre lot owned by Suncor. tetra Tech has prepared an application for the purpose which we will hopefully be submitting this week. Once you have had a chance to review, please let me know if this is acceptable to the County, subject to development of the necessary exhibits and completion of the remaining conditions of approval. Thanks, Jim James B. Borgel, Esq. Partner Holland & Hart LLP 2 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgel@hollandhart.com HOLLAND&HART IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FORIMPROVEMENTS SIIVc'.OR ENERGY—USR-1709 THIS AGREEMENT, made and entered into this _day of , 2012. by and between the County of Weld, State of Colorado, acting through its Board of County Ceumissioncro, hereinafter called "County," and Suncor Energy (U.S.A.) Pipeline Company, a Colorado corponttion, hereinafter called "Applicant" County and Applicant may each he 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: A -I 23eore pottier -of -Lot A of AmRE-2918 being Part of the NW4 of Section 20. T2N, R66W the 6th P.M., Weld County. CO hcrcinaflcr referred to as "the Property"; and WHEREAS, (aunty has approved Use by Special Review Permit No. USR-1709 (the "Permit") for an Oil mid Gas Support Facility (Crude Oil '!'ruck 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 hereinafter dcfmcd) of the cost of the Off -Site Improvements, both of which are described in this Agreement and generally described in Exhibit A to this Agreement; 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 The by Special Review Permit Development Standards Suncor Energy (USA) Pipeline Company 11SR-1709"; and 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 lime of the issuance of any grading or right -of --way permits for the Project; and 1 WHEREAS. the parties agree that Applicant shall commence work on the "Off -Site Improvements", us hereinafter defined, and shall collateralize its Proportionate Share of the costs of said improvements as hereinafter set forth. NOW. TI IFREFORE, IN CONSIDERATION OF the Ibregoing and of the promises and covenants contained herein, the panics hereto promise, covenant and agree as follows: A. Required Off -Site Improvements 1.0 Ott -Site Improvements Defined: The Off -Site Improvements shall mean the design and installation of a paved surface not to exceed 24 feet in width within the existing 60 food wide right-of-way of Weld County Road (WCR) 20 from the existing intersection of WCR 20 and U.S, Highway R5, to a point at the eastern edge or the entry driveway from the Project unto 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. I lighway R5_ except as may be legally required by the Colorado Department of Transportation (hereinafter "CDOT"). However, this definition specifically includes acceleration and deceleration lanes which may be constructed at the entry driveway located on the Project hn WCR 20, as directed by the Weld County Department of Public Works, and the stop signs) required for approval of USR-1707. 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 Of Site Improvement Cgs: "Off-Slte Improvement Costs" shall include all out -a -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, attested 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 "CDPIIE") and other regulatory agencies. Off -Site Improvement Costs shall not include any costs incurred by Applicant to construct and install acceleration and deceleration lanes and stop sign(s) at the Project entrance, the costs of which shall be paid solely by kipplic4n4:tl. 3.0 Construction of Off -Site Improvcmcnw: Applicant or its contractor shall construct the Off -Site Improvements. as well as any improvements legally required by County or CBOT. Applicant shall he 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 he 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 2 pavement markings. In addition a geotechnical asphalt 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 Rngineer, 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 ("VPU"). County shall, on an annual basis but in any event between January I and July 1 of each year subsequent to this Agreement, conduct traffic counts on %VCR 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 I of the year in which the VPD Trigger occurs, provide Applicant with a written notice setting forth the VPD on WCR20. 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 Ikcember 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, that Applicant shall have no obligation to construct the Off -Site Improvements until Applicant has commenced use of the Property ter purposes authorized by LUSR-1709. (For example. if County detenniitc th VP Trigger occurs in April 1014 and notifies Applicant thereof in May 201t and thereafter budpr is sufficient funds.io cover its share of the road improvementsin.7014 Applicant - or itc contractor — shall entnple" the Off Sitc Road Improvements in 2,01i1 Applicant shall have ninety (90) days from its receipt of seuehCoumtv's notice to submit Off -Site Construction Plans and Cost Estimates to the County Cur review, and following acceptance of the Off Site Construction Plans by County, which shall not be unreasonably withheld or delayed. Applicant shall provide County with an estimated cost for the proposed Off -Site Improvements, together with Collateral in an amount equal to the Applicant's Proportionate Share as determined in Section A.5.0 of this Agreement, and in a manner consistent with sixtion D.7.0 of this Agreement- The parties acknowledge that Applicant has not yet developed Construction Plans, and that the costs of future improvements arc not yet known. The parties acknowledge that County will require at least thirty (30) days to review the construction plans. 3 5.0 Applicant's Proportionate Sham: Applicants's Proportionate Share shall be determined by the following ftrmulaTrhftic on Haut Route related to Applicant's activities divided by Told Tmflic on Ihml Route weighted by ESAL calculation method.beacd upon the traffic counts taken at the time of the VPD Trigger, using the ESAL4EquiyaleptSintle Axle 1.nodl tie -volumes created by the Applicant (or its . In order to accurately determine percentage of Applicant's traffic, the County reserves the right to install traffic counters on the drivcway(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 he determined by traffic counts conducted by the County on the Applicant's I laul Route(s) in accordance with the procedures set for 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 that 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 OIT Site Improvement Costs directly to the contractor and consultants it engages lo perform the OlitSite 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 teens of any contracts for design and construction of the Off -Site Improvements entered into by Applicant. 6.0 Construction Standard §: All construction and materials for the Off -Site Improvements shall conform to the requirement: in effect at the time of the completion of the Improvements set forth in the "Standard Specifications for Road and Bridge Construction" provided by COOT. 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 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." R.D Off -Site Dust Control/Abatement: Duct control on WCR 20 will be warranted when total Vl'll on WCR 20 exceeds 200, as detemtined 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 IJSR-1 709, 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—as-Por purposes oft ' 4asing the -Haul Route shall be treated equal'), raid truck traffic shall be weighted the name us -other veltindartrnifte 1,619 the RS AI. calculation methed.Jn d+term' fi r i act s t f Iml'lic yolume5 r�ceated by the Annlieant for its contractors G11EpI5, Ienantq nr customers . as set forth in Paraeraph 5.0 above. The frequency. amount, and extent of 4 dust control measures on the I laud Route will be determined by site -specific conditions at the time and generally accepted methods and techniques, as reasonably determined by County. I3. haul Rouj 1.0 Established Haul Routes: I.I Applicant shall take reasonable steps to require that truck traffic (including construction traffic) exiling or entering the Property shall only use that portion of WCR 20 which lies west of the Project entrance and east of' U.S. I lighway 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 he 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 Si&nage: 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 Chances to I laud Routes: In the event that County is requested by Applicant or the Project operator to approve the use Man 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 instituted. County will determine the proportionate share oidust 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 atihe time, as reasonably determined by County. 5.0 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 IJSR-1709, Applicant shall he responsible for the repair of any material damage to the I laul Route, beyond ordinary wear and tear, which is clearly and directly caused by traffic going to or ken 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 therealler 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 5 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 al the location where the Road Repairs are required and shall reasonably agree on the cost and the scope of any such Road Repairs. C. 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 Immt xgnicnts: Applicant shall. at its own expense. constructor install the On -Site Improvements (as more particularly set forth in the Development Standards for CSR -1709 and Exhibit A to be located adjacent to or within the interior of the Property, including but not limited to drainage lhcilities, 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 Improvement Plans"). Applicant shall be responsible for all maintenance of the On -Site Improvements. 3.0 Timing of On -Site Improvements: (M -Site Improvements which consist of grading, drainageand landscaping improvements shall be completed by Applicant prior to the time that Applicant utilizes the Property for any purpose authorized by t :SR -I 709the Project first beeemaseperetional. On -Site Improvements which constitute paving (if any), shall be completed by Applicant prior to that date upon which the CIff-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 (M -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 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<d--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 Unilbrm Traffic Control Devices" issued by the Federal Highway Administration. D. Oerivr t≥ Rc9.kiCenicntt 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 6 Improvements. The On -Site Improvements and Off -Site Improvements may be referred to together as the "Improvements." All engineering services retained by Applicant in connection with the construction of die Off -Site lmpnwements 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 Slate 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, hut 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, Applicantshall 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. 3.0 Construction: Applicant shall furnish and install the On -Site and Off -Site Improvements as generally shown in Exhibit A- 3.1 All construction shall be in strict conformance with this Agreement and with the Improvement 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 he deemed a part of the Ott -Site Improvement Costs. 3.3 At all Units during said construction, Applicant shall conduct appropriate testing and inspection of material aml 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. 4O Liability: to the extent allowed by lawn 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 front the negligent or intentional act of the County. All contractors and other employees eneaeod by Applicant in the construction of the On -Site and Off -Site Improvements shall maintain adequate workers compensation insurance and public liability insurance coverage. and shall operate in strict accordance with the laws and regulations of the 7 State of Colorado governing occupational safety mad Iwuhh. The obligations of the Applicant ender this paragraph shall not extend to ttnyludgnents against County which arc in cAcess vflhc limitations on liability ,wt forth in. the Colorado (nwenuoent Immunity Act, C,RS. Section 24-10-101. et. seq., to Ihcmaximum extent that such limitations or lialztlay are anplicuble. 4.0 Release of slit : To the -extent allowed by law. each party to thin Agreement (the -indemnifying Party') ::hull indemnify and -hold -harmless the other party (the "Indemnified Party") from any and till liability, lot and damage th.-L.d...erit J -P ..t ..h.) .i.t0' r to u result -of all• ureattd deseriptiou caused by, tithing from, Or on accountof the negligent or intentionul as of the Indemnifying Party or its officers. agents, employee:, except for -the liability. loss, or damage uriring tint the negligent or intentional act of the Indemnified Party. All contractors and other employees engaged by Applicant and County in runrtructimt-of the On Site and Off Situ !mprnn ontcns-shalt maintain adequate tvorlcr':; compensation -insurance end public liability insurance coverage, and shall operate in ,ttriet ueei rdo: a with the laws -and regulations of the State of Coloradogoverningoccupational safety gal hctkh,-44mobtigatiats-ef the Applicant under this paragraph extend to any judgment. oynnst-County-whieherein ran-liabi ' , tent -Immunity Act, C.R.S. Seetion-24-1ff lot. et-centrte ionsorliability are applicable. 4.&9,9 Warranty of On -Site and Off -Site IImolai rat. cowl: 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) yeah. The warmly period shall begin only after County's execution of a written acceptance of such Improvements. 645.0 Acceptance of Improvements by County: Upon compliance with the following procedures by Applicant, the Improvements, or portions thereof, shall be deemed accepted by County. 645,1 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. 645.2 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 hag us the progress of work on the Improvements is reasonably satisfactory to County. and Applicant is not in breach of this Agreement. 635.3 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 Uepartmcnt of Planning Services shall promptly inspect the subject Improvements, and notify Applicant of any nun -compliance with the appnwed Improvement plans. Irony such deficiencies arc discovered, Applicant shall correct the deficiencies within a reasonable time. The County Engineer and•`or 8 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 Service. find that the Improvements arc constructed according to the approved Improvement Plans, he or she shall recommend fill 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. ;66,Q Genenrl Requirements for Collateral: arl¢)__Cotnny requires Applicant to provide collateral to guarantor the following obligations of Applicant wider this Agreement: (1) "Project Collateral" shall be provided separately fix completion of the OnSite Improvements and Applicant's Proportionate Share of the Off -Site Improvements; and (2) "Warranty (collateral" shall be required for all Improvements during the warranty phase. x:26.2 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 B must be equivalent to One -Hundred Percent (I00%) of the value of the On -Site Improvements as shown in this Agreement and Applicant's Proportionate Share of the Off -Site Improvements. Project Collateral shall he provided to County and shall be held until released in whole or in part by County in accordance with Section O.8 of this Agreement. This Project Collateral must he submitted to County upon the submission of the Applicant's application for a grading and/or right -of way permit. ;463 Wamaty Collateral for all On -Site and Oft 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. ;4tio.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 am 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 Improvement 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 C hereto. If the On -Site Improvements are not completed within these time frames, 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 or building permit from the County pursuant to the Weld County Code. 9 7:464Collatetal may he in the form of an irrevocable letter of credit CIAM") in an amount equivalent to (100%) of the total value of the Improvements as set forth in this Agreement: the LOC shall he subject to the requirements of Weld County Code Section 2.3.30 B. Applicant shall utilize only a County approved form when obtaining an LOC: (IRRVEVOCABI.E STANDBY LETTER OF CREDIT FOR BOARD OF COUNTY COMMISSIONERS OF WELD Comm COLORADO). A copy of said form shall be provided to Applicant upon request. 7:66.6 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 us set fiirth in this Agreement. The surety bond shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. 776.7 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. 7.86 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 tight to require Applicant 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 Applicant within sixty (60) days of the Board's notice to Applicant that the rating has fallen and that the collateral must he replaced. Applicant may not terminate existing collateral until replacement collateral has been secured. 8.07.0 Request for Release of Collateral: Collateral shall he 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 un 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: 847.1 Thc Applicant's Engineer or his representative has made regular on -site inspections during the coarse of construction and the Construction Plans utilized arc the same as those accepted by Weld County. 847.7. _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. 837.3 "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 10 substantial compliance with the plans and specifications as accepted, or that any material deviations have received prior written acceptance from the County Engineer. 8747A The Statements of Substantial Compliance must be accompanied, if applicable, by a letter of acceptance of maintenance and responsibility by the appropriate utilitycompany, special district or town for any utilities. 847.5 A letter must be submitted from the appropriate Fire Authority, if applicable, indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and, if required by gip County and/or the Firc District state the results of fire flow tests. &67.6 The requirements in paragraphs 8.0 through 8.5 shall be noted in the final Construction Plans. 8:77.7 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 he taken at a regularly scheduled public meeting of the Board. 8:87.8 For all OtT-Site and On -Site Improvements (including improvements to public rightsof-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. 841„2 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 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. 948.0 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 front 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. alty-ApnlicanCs release of its obligations shall be accomplished.bx.Countys.e utiortofnnewl ' enlsA twith the successor owner otthtprnpedy._(See naraaraphs_ i 12 and 2.1 ) 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. 4949.0 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 hisTher behalf. E. Termination of Agreement: I.0 Termination Event: This Agreement shall terminate upon the earliest of the following events: 1.1 Cessation of all Permit ltelated Activities. termination of this Agreement shall occur at such lime 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 IJSIt-1709 ("Operator') shall provide written notice to County of said cessation or activity, which County shall then verify. If written notice is nut 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 See. 23-2-200.E of the Weld County Code. 1.2 execution of Replacement "Improvements Agreement According to Polley Riaugdina Collateral for Improvements - USR-1709 by New Property�gamy This Agreement shall terminate in the event that County executes a new Improvements Agreement According to Policy Regarding Collateral for Improvements —IJSR-1709 with a new Property owner who has purchased the Properly, and intends to make use of the rights and privileges available to it through the then existing IJSR. 1.3 J xecution ofRenlacement "Improvements Agreement Accytrding:to Policy Regarding Collateral for hnorovements - US$ -1709 by X.gw.Qp rater 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 arc permitted by the then existing USIt 2.0 Termination Procedures. 2.1 Termination Procedures Following Cessation of Permit Relatc4A,.'v'ti s: Following the events outlined in paragraph 1.1 above. County shall conduct its annual road inspection. Said road inspection shall he conducted on or before May 31 following the 12 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, lo 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 he 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 front 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 thecost of the completion of the Improvements. 3.0 Consequence of Termination by Cessation of Permit tc1,8ted Activities: Following County's continuation that Applicant and/or Operator has•'huve 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 he permitted unless and until approved by County following execution of a new Improvements Agreement According to Policy Regarding Collateral fin- Improvements — USlt-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 —USE-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 Paamaph F.14: In the event that activities related to 11SR-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 County, in its sole discretion, deems necessary to preserve public interests. 13 F. General Provisions 1.0 Govemmenttl hnntunitc: NO tears 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 etf�., as applicable now or herealler amended. 2.0 No Third Party Beneficiary Enforcement_ II 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 o(Attrccment: If in County's opinion, Applicant has violated any of the tens 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. 11; after thirty (301 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, he amended in accordance with the procedures of the Weld County Code), or to initiate legal or equitable proceedings to enforce the Agreement, or any combination of these processes. 4.0 Nolim; 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 fix County. to: Weld County Department of Public Works Attn: County Engineer 1111 II Street P.O. Dos 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 Aron: Weld County Attorney 915 tenth 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 With a copy to: Suncor Energy Service:. Inc. Attn: Jacy ltock 717 17th Street, Suite 2900 Denver, Colorado 80202 14 And to: Attn: James B. forget, F,sy. I lolland & 1 fart l.l.P 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 0) certified mail shall be deemed to have been duly given three business days atter 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 lo 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 arc 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, hut shall continue to he valid and enforceable to the fullest extent permitted by law. 6.0 Counterparts: This Agreement may he executed in counterparts, each of which shall constitute an original and together which shall constitute one and the same document Facsimile signatures shall he accepted as originals. 7.0 Choice off awstrntire Agreement: This Agreement shall be governed by the laws of the Stale of Colorado. This Agreement has been designed in part to encompass the requirements of the Board or County Commissioner's Resolution to approve Applicant's "Site Specific Development Plan and Use by Special Review Permit 1/1709 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 list 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. IS 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: Name: Us: STATE OF COLORADO ) ) v9. COUNTY OF The foregoing instrument was acknowledged before me this day of _,2012,by as of SUNCOR ENERGY (U.S.A.) PIPELINE COMPANY, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public COUNTY: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATtEST: nw Chair WELD COUNTY CLERK TO THE BOARD By: Deputy Clerk to the Board APPROVED AS'L'O FORM: County Attorney 16 EXHIBIT A Description of On -Site and Off -Site Improvements A -I EXHIBIT B Estimates of Project Collateral Amounts 1. Preliminary Estimate of Off -Site Improvements Construction Cusls 2. Preliminary. Estimate of On -Site Improvements Construction Costs B-1 EXHIBIT C Sc ti ,¢for Comnletian olOn-Site In mvements xn.,ua 41X.'Cs C -I Document comparison by Workshare Professional on Tuesday. June 19. 2012 10:58:51 AM Input: Document 1 ID interwovenSite:/1WORKSITEHOLLANDHART.COMNVork site/5313189/4 Description #5313189v4cWorksite> - Weld County Comments/Spindle C Improvements Agreement (4-2-12) Document 2 ID interwovenSiteMVORKSITE.HOLLANDHART.COM/Work site/5647490/2 Description #5847490v2cWorksite> - Weld County Comments_Spindle C Improvements Agreement (6-18-12 -Clean) Rendering set standard Legend: In ertioa Muvcd-tiara Moved to Style change Format change V +,'l irleriwr Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 8 Deletions 6 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 14 Esther Gesick From: Sent: To: Subject: More for USR-1709. Chris Gathman Thursday, October 11, 2012 4:07 PM Esther Gesick; Debbie Heffel; Karla Ford FW: Weld County Comments_Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: James Borgel[mailto:JBBorgel@hollandhart.com] Sent: Friday, October 05, 2012 12:03 PM To: Stephanie Arries Cc: Chris Gathman; David Bauer; Bruce Barker; Jacy Rock (frock@suncor.com) Subject: RE: Weld County Comments_ Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX No, we are not taking that option off the table. My thought is that the description of the off site improvements attached as an exhibit would address those specifications. I think that works better than messing with the actual text of the agreement. Regarding the indemnification language, is the advice you received based on some new statutory provision or a new case? If so I'd appreciate seeing that authority. Absent any new development, it seems to me that your concern about enforceability has already been addressed by inclusion of the limitation "to the extent permitted by Colorado law." You will recall we already had a long discussion about this topic at one of our meetings in which the issue of enforceability was raised, and that was the accommodation that we all came to. Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 1 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: ibbordel(olhollandhart.com HOLLAND&HART IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. From: Stephanie Arries [mailto:sarries@ co.weld.co.us] Sent: Friday, October 05, 2012 11:48 AM To: James Borgel Cc: Chris Gathman; David Bauer; Bruce Barker Subject: RE: Weld County Comments_Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX Jim I am reviewing the Agreement today and will get back to you on Monday. Rich has been in the field most of the week and will look at the agreement also on Monday. Dave is just plain swamped... A question we all had in just glancing at the versions of the agreement you sent has to do with the conversations Rich had with Kelly Gleason last summer. They discussed the idea of Suncor's putting in a cement road in the beginning and having no ongoing maintenance obligations. Rich was under the impression that Mr. Gleason liked this option. However, that option was not mentioned in the agreement, and we wanted to confirm that Suncor did not intend to leave that option open. I also need to tell you that the County has been provided with advice and has been instructed that the provision concerning reciprocal liability is not an option in any County Government agreement, as it violates State law (C.R.S. 29-2- 110) and the State Constitution (Article I Section XI). Therefore, the original language (to which you had objected) must and will be replaced in the Agreement. I have checked this with Bruce, and he affirms that the joint indemnification language is not permissible — in this or any agreement given to the Board for its approval.. Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries(a�co.weld.co.us 2 MN STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel[mailto:JBBorgel@hollandhart.com] Sent: Tuesday, October 02, 2012 11:35 AM To: Stephanie Arries Cc: Chris Gathman; David Bauer Subject: Weld County Comments_Spindle C Improvements Agreement (Suncor Revisions).DOCX;Spindle C Improvements Agreement (Redline).DOCX Stephanie: Attached for your review is a revised version of the Improvements Agreement relating to the Suncor Spindle C property. The attached redlined version shows the very few minor changes that we are proposing to the last version received from the County, based on our last set of meetings and the site visit with Kelly Gleason. As you will see, with a few minor revisions, we have accepted the County's proposed language on proportionate share and on the need for Suncor to make certain road repairs. One item that still needs to be developed is the description of the Off -Site Improvements to be built by Suncor. I understand that Kelly and Dave have agreed in principal that the road will be built to a standard that will be able to handle the anticipated truck traffic. Is that something that the County will prepare, or should we ask our engineers to provide? Finally, Suncor has agreed that they will pursue a plat exemption for the property to address your concern that the proposed USR does not cover the entirety of the (approx.) 35 acre lot owned by Suncor. tetra Tech has prepared an application for the purpose which we will hopefully be submitting this week. Once you have had a chance to review, please let me know if this is acceptable to the County, subject to development of the necessary exhibits and completion of the remaining conditions of approval. Thanks, Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgelColhollandhart.com HOLLAND&HART 3 IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS SUNCOR ENERGY - USR-1709 THIS AGREEMENT, made and entered into this day of , 2012, 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: [TO BE INSERTED UPON COMPLETION OF PLAT EXEMPTION] 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 hereinafter defined) of the cost of the Off -Site Improvements, both of which are described in this Agreement and generally described in Exhibit A to this Agreement; 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 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 1 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 paved surface 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 may 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 shall not include any costs incurred by Applicant to construct and install acceleration and deceleration lanes and stop sign(s) at the Project entrance, the costs of which 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, 2 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 CDOT 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 I 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, that Applicant shall have no obligation to construct 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 2014, 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 by County, which shall not be unreasonably withheld or delayed, Applicant shall provide County with an estimated cost for the proposed Off -Site Improvements, together with Collateral in an amount equal to the Applicant's Proportionate Share 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 Construction Plans, 3 and that the costs of future 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: Applicants'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 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 in both instances to determine the impacts of traffic volumes created by the Applicant (or its contractors, clients, tenants, or customers and by other users. The frequency, amount, and extent of dust control measures on the Haul Route will 4 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 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. 5.0 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, 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 5 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. Applicant's obligations under this Section shall terminate at such time as the Off -Site Improvements are complete. C. 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 Improvement 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 the Project first becomes operational. 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 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. 6 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." 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. 3.0 Construction: Applicant shall furnish and install the On -Site and Off -Site Improvements as generally shown in Exhibit A. 3.1 All construction shall be in strict conformance with this Agreement and with the Improvement 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 Release of Liability: To the extent allowed by law, each party to this Agreement (the "Indemnifying Party") shall indemnify and hold harmless the other party (the "Indemnified Party") from any and all liability, loss and damage the Indemnified Party may 7 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 Indemnifying Party or its officers, agents, employees, except for the liability, loss, or damage arising from the negligent or intentional act of the Indemnified Party. All contractors and other employees engaged by Applicant and County in 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. 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 Improvement 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 Improvement Plans, he or she shall recommend full acceptance. Upon receipt of a positive unqualified written recommendation from the County Engineer and/or the 8 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 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 B, must be equivalent to One -Hundred Percent (100%) of the value of the On -Site Improvements as shown in this Agreement 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. 7.3 Warranty Collateral for all On -Site and Ott -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 Improvement 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 C hereto. If the On -Site Improvements are not completed within these time frames, 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. 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. 9 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 2-3-30 B.4. 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 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. 10 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 plans. 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 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. 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 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 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 arc assigned. 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 Engineer to act on his/her behalf 11 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 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- 200.E 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. 12 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. 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 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 13 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 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. 14 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. 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. 15 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: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2012, by as of SUNCOR ENERGY (U.S.A.) PIPELINE COMPANY, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public COUNTY: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Sean P. Conway, Chair WELD COUNTY CLERK TO THE BOARD By: Deputy Clerk to the Board APPROVED AS TO FORM: County Attorney 16 EXHIBIT A Description of On -Site and Off -Site Improvements A -I EXHIBIT B Estimates of Project Collateral Amounts 1. Preliminary Estimate of Off -Site Improvements Construction Costs 2. Preliminary Estimate of On -Site Improvements Construction Costs B-1 EXHIBIT C Schedule for Completion of On -Site Improvements 5647490 J C-1 IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS SUNCOR ENERGY - USR-1709 THIS AGREEMENT, made and entered into this day of , 2012, 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: A- P.3 -acre portion of Lot A of AmRE-2918 being Part of the NW4 of Section 20, T2N, R66W 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 hereinafter defined) of the cost of the Off -Site Improvements, both of which are described in this Agreement and generally described in Exhibit A to this Agreement; 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 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 1 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 paved surface 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 may 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 shall not include any costs incurred by Applicant to construct and install acceleration and deceleration lanes and stop sign(s) at the Project entrance, the costs of which 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 2 pavement markings. In addition a geotechnical asphalt 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, that Applicant shall have no obligation to construct 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 2014, Applicant — or its contractor — shall complete the Off -Site Road Improvements in 2015.1 Applicant shall have ninety (90) days from its receipt of aucliCounty'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 by County, which shall not be unreasonably withheld or delayed, Applicant shall provide County with an estimated cost for the proposed Off -Site Improvements, together with Collateral in an amount equal to the Applicant's Proportionate Share 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 Construction Plans, and that the costs of future improvements are not yet known. The parties acknowledge that County will require at least thirty (30) days to review the construction plans. 3 5.0 Applicant's Proportionate Share: Applicants's Proportionate Share shall be based upon the 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 for 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 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. For purposes of this calculation, each vehicle using the I haul Route shall be treated equally. and truck traffic shall be weighted the same as other vehicular traf tic,using the ESAL calculation method to d + rmine the impacts of traffic volumes created by the Applicant (or its contractors clients. tenants, or customers . 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. 4 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 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. 5.0 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, 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 5 at the location where the Road Repairs are required and shall reasonably agree on the cost and the scope of any such Road Repairs. C. 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 Improvement 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 the Project first becomes operational. 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 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." All engineering services retained by Applicant in connection 6 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. 3.0 Construction: Applicant shall furnish and install the On -Site and Off -Site Improvements as generally shown in Exhibit A. 3.1 All construction shall be in strict conformance with this Agreement and with the Improvement 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 Release of Liability: To the extent allowed by law, each party to this Agreement (the "Indemnifying Party") shall indemnify and hold harmless the other party (the "Indemnified Party") from any and all liability, loss and damage the Indemnified Party 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 Indemnifying Party or its officers, agents, employees, except for the liability, loss, or damage arising from the negligent or intentional act of the Indemnified Party. All contractors and other employees engaged by Applicant and County in 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 7 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. 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 Improvement 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 Improvement 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. 8 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 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 B, must be equivalent to One -Hundred Percent (100%) of the value of the On -Site Improvements as shown in this Agreement 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 and/or right -of way permit. 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 Improvement 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 C hereto. If the On -Site Improvements are not completed within these time frames, 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 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. 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. 9 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 2-3-30 B.4. 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 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. 10 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 plans. 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 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. 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 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 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. Generally_, Applicant's release of its obli! ations shall be accom.lished b Count 's execution of a new Im rovements A reement with the successor owner of the property (See paragraphs E. 1.2 and 2.2 below l 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 Engineer to act on his/her behalf. 11 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 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. 23-2-200.E 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. 12 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. 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.14: 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 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 seg., 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 13 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 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 915 Tenth1150 "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 14 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. 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. 15 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: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2012, by as of SUNCOR ENERGY (U.S.A.) PIPELINE COMPANY, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public COUNTY: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Barbara KirkmcvcrSean P. Conway, Chair WELD COUNTY CLERK TO THE BOARD By: Deputy Clerk to the Board APPROVED AS TO FORM: County Attorney 16 EXHIBIT A Description of On -Site and Off -Site Improvements A-1 EXHIBIT B Estimates of Project Collateral Amounts 1. Preliminary Estimate of Off -Site Improvements Construction Costs 2. Preliminary Estimate of On -Site Improvements Construction Costs B-1 EXHIBIT C Schedule for Completion of On -Site Improvements 5313189_4.DOCX C-1 C-2 Document comparison by Workshare Professional on Tuesday, June 19, 2012 10:58:51 AM Input: Document 1 ID interwovenSite://WORKSITE.HOLLANDHART.COM/Work site/5313189/4 Description #5313189v4<Worksite> - Weld County Comments/Spindle C Improvements Agreement (4-2-12) Document 2 ID interwovenSite://WORKSITE.HOLLANDHART.COM/Work site/5647490/2 Description #5647490v2<Worksite> - Weld County Comments_Spindle C Improvements Agreement (6-18-12 -Clean) Rendering set standard Legend: Insertion Deletion nom Moved to Style change Format change \ Its vtdtkluii-Ni, Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 8 Deletions 6 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 14 MEMORANDUM TO: Weld County Commissioners DATE: July 13, 2012 FROM: Chris Gathman L` — SUBJECT: USR-1709 Status Timeline: • Approved by the Board of County Commissioners 12/16/2009. • 7/2010 - Extension to record the plat granted by the Board of County Commissioners until 12/31/2010. • 12/17/2010 - Extension to record the plat granted by the Board of County Commissioners until 6/30/2011. • Late plat notification letter sent via certified mail 8/4/2011. • Certified mail receipts received 8/9/2011, 8/10/2011, 8/16/2011. • Letter to Board of County Commissioners from Jim Borgel — Holland & Hart requesting a worksession to address outstanding issues on the improvements agreement. • 2n° Late plat notification letter sent via certified mail 9/26/2011. • Certified mail receipts received 10/3/2011, 10/4/2011 & 10/6/2011. • 3r° late plat notification letter sent via certified mail 12/22/2011. • Certified mail receipts received 12/28/2011 & 12/30/2011. • E-mail sent to J. Borgel 3/2/2012 requesting status of USR-1709. • E-mail response from J. Borgel received 3/5/2012. • E-mail response from J. Borgel received 3/12/2012 indicating that a response from the manager of the project is still pending. • Proposed amendments to Improvements Agreement submitted by J. Borgel on behalf of Suncor 4/2/2012. • Letter response to J. Borgel from Stephanie Arries dated 4/23/2012. • C. Gathman sent e-mail 5/4/2012 to J. Borgel & Blaine Ayers requesting additional information re: pumphouse/office proposed on the west side of the parcel that the Suncor facility is proposed (USR-1709). • E-mail response from Blaine Ayers to C. Gathman re: pumphouse/office received 5/4/2012. • Board of County Commissioners Worksession with Suncor representatives re: improvements agreement. Remaining Outstanding Conditions of Approval: All conditions of approval have been addressed with the exception that 1) the improvements agreement needs to be finalized, submitted and accepted by the Board of County Commissioners and 2) the final USR plat needs to be submitted for recording. The improvements agreement has not been finalized and the applicant has yet to agree to the provisions outlined in the improvements agreement. In discussions with Suncor representatives after the June 20, 2012 worksession, Suncor had indicated the possibility of installing additional tanks associated with the pipeline on the west end of the property. Planning and Public Works staff would like to do a field visit to the site with Suncor representatives to walk the site to verify if any county permits would be required for these future improvements. Additionally, Public Works would like to discuss the possibility of incorporating a revised road improvement option with Suncor (the possibility of installing a cement road) into the improvements agreement. Finally, the County Attorney's Office made the determination that the boundaries of USR-1709 encompass the entirety of Lot B of Amended Recorded Exemption 2918. The applicant expressed interest in having the USR boundary cover only a portion of the property (where the proposed improvements would be located). In order to do this the applicant would need to apply for a Subdivision Exemption and record a Subdivision Exemption Plat showing the area of the proposed improvements. The subdivision exemption process takes approximately 3 months from the date of application submittal to the submittal of the subdivision exemption plat for recording. Staff Recommendation: Given the outstanding issues outlined above, staff requests a 90 -day continuance to allow the applicants and the county to finalize the Road Improvements and Maintenance Agreement, address any future onsite improvements and submit and finalize a subdivision exemption (if the applicant decides to proceed with this option). WEL'cf0UNTY u MEMORANDUM TO: Weld County Commissioners DATE: May 14, 2012 FROM: Chris Gathman (c.k, At_ SUBJECT: USR-1709 Status Timeline: • Approved by the Board of County Commissioners 12/16/2009. • 7/2010 - Extension to record the plat granted by the Board of County Commissioners until 12/31/2010. • 12/17/2010 - Extension to record the plat granted by the Board of County Commissioners until 6/30/2011. • Late plat notification letter sent via certified mail 8/4/2011. • Certified mail receipts received 8/9/2011, 8/10/2011, 8/16/2011. • Letter to Board of County Commissioners from Jim Borgel — Holland & Hart requesting a worksession to address outstanding issues on the improvements agreement. • 2n° Late plat notification letter sent via certified mail 9/26/2011. • Certified mail receipts received 10/3/2011, 10/4/2011 & 10/6/2011. • 3rd late plat notification letter sent via certified mail 12/22/2011. • Certified mail receipts received 12/28/2011 & 12/30/2011. • E-mail sent to J. Borgel 3/2/2012 requesting status of USR-1709. • E-mail response from J. Borgel received 3/5/2012. • E-mail response from J. Borgel received 3/12/2012 indicating that a response from the manager of the project is still pending. • Proposed amendments to Improvements Agreement submitted by J. Borgel on behalf of Suncor 4/2/2012. • Letter response to J. Borgel from Stephanie Arries dated 4/23/2012. • C. Gathman sent e-mail 5/4/2012 to J. Borgel & Blaine Ayers requesting additional information re: pumphouse/office proposed on the west side of the parcel that the Suncor facility is proposed (USR-1709). • E-mail response from Blaine Ayers to C. Gathman re: pumphouse/office received 5/4/2012. Remaining Outstanding Conditions of Approval: All conditions of approval have been addressed with the exception that 1) the improvements agreement needs to be finalized, submitted and accepted by the Board of County Commissioners and 2) the final USR plat needs to be submitted for recording. The improvements agreement has not been finalized and the applicant has yet to agree to the provisions outlined in the improvements agreement. Additionally, the applicant has installed a temporary office on the site and is proposing to install control buildings associated with the 10 -inch interstate crude oil pipeline and proposed 16 -inch interstate crude oil pipeline that will be located on the same property that USR-1709 is located on. The applicant contends that these buildings are a use by right because they are uses associated with a federally regulated pipeline and are a use by right. Staff has requested additional information about these control buildings to determine if any additional land use approvals and/or amendments to modifications to USR-1709 will be required. Staff Recommendation: The applicant (after numerous meetings, correspondence and conversations with staff) has not come to an agreement to the provisions outlined in the improvements agreement. It is staffs position that the provisions and requirements of the improvements agreement are consistent with what has been required of other similar uses. If the applicant agrees to the provisions of the improvements agreement, staff recommends a continuance of 60 -days to finalize the agreement and verify if any additional approvals will be required for the pipeline control buildings. If the applicant is unwilling to agree to the provisions of the improvements agreement, then staff is in support of scheduling a rescission hearing for this case. Esther Gesick From: Chris Gathman Sent: Friday, May 11, 2012 1:43 PM To: Esther Gesick Subject: FW: Suncor pump building/office Attachments: Weld County response 7_29_11.pdf Item of correspondence for the USR-1709 —Suncor for Monday. Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Ayers, Blaine [mailto:BAyers@Suncor.com] Sent: Friday, May 04, 2012 3:15 PM To: Chris Gathman; James Borgel; Rock, lacy Cc: Stephanie Arries; Bruce Barker; Trevor Jiricek Subject: RE: Suncor pump building/office Chris: Thanks for the e-mail. We will work on getting responses to your specific questions as soon as possible. In the interim, I wanted to point out a couple of things. First, the work that has been taking place adjacent to Weld County Road 20 involves the installation of new control buildings associated with Suncor's existing 10" interstate crude oil pipeline and the proposed new 16" interstate crude oil pipeline for which construction is expected to be commenced in 2013. It has been our understanding that this work is exempt from the County's zoning regulations under Section 23-1-90 of the Weld County Zoning Code, which states that pipelines and appurtenant facilities regulated, licensed or permitted under federal regulations as interstate pipelines are exempt from the County's zoning regulations. We believe that the control buildings currently under construction are an integral part of Suncor's existing and proposed interstate pipeline and properly fall within this exemption. We previously corresponded with you on this point last July (see attached) and received no response. As a result we have been under the impression that this position was consistent with the County's understanding. 1 With regard to USR-1709, the proceedings related to that permit are clear that the proposed improvements covered by that permit are limited to a 12.3 acre portion of Lot A of AmRE-2918. The site on which the control buildings are being placed are not part of USR 1709 or SUP 359. However, based on the code language and our correspondence last summer, it is our understanding that a USR is not required for this work under the County's zoning code. Please feel free to contact me with any additional questions or concerns. Blaine Ayers Project Manager Suncor Energy U.S.A. Pipeline 307-532-0249 From: Chris Gathman [mailto:cgathman@co.weld.co.us] Sent: Friday, May 04, 2012 7:33 AM To: James Borgel; Ayers, Blaine Cc: Stephanie Arries; Bruce Barker; Trevor Jiricek Subject: Suncor pump building/office Dear Blaine & Jim, Staff has some questions about existing/future construction activity occurring at the west end of Lot A AMRE-2918. This is located on the same lot as the proposed USR-1709 facility. The existing cargo container/office (approved under MFG12-0008 & ZPMH12-0004 as a temporary office) is located on this site and it is my understanding that a proposed pump building with office facility is also being proposed for this site. This is located outside of the existing boundaries of the existing Suncor facility approved under SUP -359 — see the attached plat map. We need some additional information regarding this site to determine whether or not additional Planning/Zoning approvals are required which could impact your pending USR (USR-1709). Therefore, I have some questions about the existing/proposed uses in this location: 1) Will the proposed pump building/office building related to the existing facility approved under SUP -359 (will employees that work/visit the SUP -359 site be working/visiting these facilities as well? Or is this a completely separate stand alone facility? 2) How many employees are planned to attend/work at this site? (Is it a manned or unmanned facility) 3) Approximate how many vehicles will be accessing the site and how often? 4) What type of vehicles will be accessing the site? 5) Are any permanent septic/water facilities proposed for this site? 6) Is any additional grading proposed for this site? 7) Do you have a site plan that shows the anticipated layout of this site at full buildout (showing parking, access, circulation, building locations....). Staff will need to make a determination if these changes will require an amendment or minor amendment to USR-1709 or possibly SUP -359 or if no additional planning review/approvals will be required. These questions can be addressed through a pre -application form (see attached). We would happy to schedule a meeting and sit down and discuss this if you prefer. Note: USR-1709 is scheduled to go before the Board of County Commissioners is scheduled for Monday, May 14th at 9 AM and we request that this information be submitted as soon as possible in the event we need to address this at that meeting. Let me know if you have any questions. Sincerely, 2 Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. his email and is contents are private and confidential, for the sole use of the addressees. If you are not an intended recipient. copyingforwarding or other d;stribution of this email or its contents by any means is prohibited It you believe that you received this email in error please notify the original sender immedlatel/. 'etro-Canadais a 3unoor Energy business. cournU e' sun contenu sent prives et contidentielset soot destines a usage uxclusrt des destinataires. Si vows n'ates pas le destinataire prevu. teute zeproductiontransfert ou autre forme de diffusion de ce courriel oil de son contenu par quelque moyen gue ce soit est interdit. Sf vents et -oyez avoir recu ce courriel par eneurveuillez en aviser I'expediteur ouginai immedi dement. i'etrn-Uanada est line entrepnise de Suncor Energ:e. 3 SUNYCOR E N E R G Blaine Ayers Project Specialist Suncor Energy (U.S.A.) Pipeline Company 1715 neischii Parkway Cheyenne, WV 82001 July 29, 2011 VIA E -Mail Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 Re: Work at Fort Lupton Station Dear Chris: I am writing in response to our recent discussions and correspondence regarding the construction activity at Suncor's Fort Lupton Station adjacent to WCR 20 and east of Highway 85. The work that Suncor is undertaking at this site is the installation of a replacement pump station control facility for Suncor's existing 10" interstate pipeline that extends from Suncor's Cheyenne, Wyoming facilities to its Commerce City refinery. It is our understanding that this work is not subject to the County's zoning regulations. This control station is an appurtenance to Suncor's existing 10" pipeline and is regulated under standards established by the United States Department of Transportation ("DOT") for the transportation of hazardous liquids by pipeline. See 49 C.F.R. Part 195. Section 195.2 of 49 C.F.R. defines a "pipeline" subject to DOT regulation to include pumping stations, together with any equipment, facility, or building used in the transportation of hazardous liquids. The new control facility falls within this definition and is subject to DOT regulations and standards. Prior exchanges with the County have confirmed that work of this nature is exempt from regulation under the County's zoning regulations. In 2008, following several meetings with the County Attorney and the County Planning staff, Suncor received written assurances that construction of its planned 16" pipeline from Cheyenne to Commerce City was not subject to regulation by the County under Chapter 23 of the County Code. We believe that the same analysis applies to Suncor's current activities at its Fort Lupton facility. With regard to the other issues raised in your letter, the area disturbed by grading at this site is approximately 36,000 square feet, so the County's grading permit requirements are not applicable. Access to this site is via an existing access point on WCR 20, so we don't believe that an additional access permit is required. Since this activity does not require a land use permit, a pre -application meeting will not be necessary_ Please don't hesitate to contact me if I can address any additional questions or concerns. Regards, sine Ayers Project Specialist Suncor Energy (U.S.A.) Pipeline Company Enclosure cc: Randy Lowry Jacy Rock, Esq. James Borgel, Esq. Esther Gesick From: Chris Gathman Sent: Thursday, April 26, 2012 8:05 AM To: Esther Gesick Subject: FW: Suncor - Fort Lupton Facility and USR Attachments: Let to Borgel re bldg permit 4-23-12 (Trevor).docx; Let to Borgel April 23.docx Esther, Here is one more exhibit for USR-1709 — Suncor for 5/14. Thanks! Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Stephanie Arries Sent: Tuesday, April 24, 2012 3:07 PM To: Bruce Barker; Pat Persichino; Tom Parko; David Bauer; Richard Hastings; Chris Gathman Subject: FW: Suncor - Fort Lupton Facility and USR Sent this out yesterday — We will see what happens Stephanie L. Arries - Ext 4394 Assistant Weld County Attorney STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: Stephanie Arries Sent: Monday, April 23, 2012 2:50 PM 2012-1213 1 To: 'James Borgel' Subject: Suncor - Fort Lupton Facility and USR Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries@co.weld.co.us as STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. 2 April 23, 2012 James B. Borgel, Esq. Holland & Hart, LLP 555 17th Street, Suite 3200 Denver, Colorado 80202 RE: Improvements Agreement for USR -1709 Dear Mr. Borgel: Weld County is in receipt of your email of April 2, 2012, addressed to County Attorney Bruce Barker and myself. That email was shared with employees of the Weld County Department of Planning Services and Public Works. The email you sent and the attachments indicate that Suncor Energy (USA) Pipeline Company is unable to come to an agreement with Weld County concerning the terms and conditions of an Improvements Agreement, and has been therefore, unable to finalize the Use by Special Review process by finalizing and recording a plat. Weld County's understanding is that Suncor's first objection to the terms of the proposed Improvements Agreement is to the County's method of evaluating the company's "proportionate share" of its financial obligation for road improvements and maintenance. The company objects to the use of a truck traffic count as opposed to a total traffic count to determine that share. The County's position is that this is the County's established practice for allocating financial responsibility. This approach is consistently taken with the County's oil and gas operators, water haulers and gravel pit operators, and was developed based upon Weld County's long experience with heavy truck traffic and the maintenance of its roads. That approach will not be modified to meet your client's desires. Weld County further understands that Suncor objects to the posting of security for its obligation to improve and maintain the road which fronts the property. Weld County will require Suncor to post collateral for the road improvement, (i.e. the paving of the road when the County determines that the paving improvement is necessary to protect the travelling public), and will require that warranty collateral (15% of the original collateral amount), be posted for the two year warranty period. Finally, the posting of road maintenance collateral, typically in the amount of ten percent (10%) of the original collateral is also a standard requirement in the County's Improvements April 23, 2012 Page 2 Agreements. Such maintenance collateral would be returned to Suncor when it either sells the facility or discontinues its use. As stated in the previous paragraph, these requirements are uniformly applied to other land use permit holders in the oil and gas industry and other businesses which generate heavy truck traffic. Absent extraordinary circumstances, it would be inappropriate to treat Suncor specially and reduce or eliminate its obligation. No such extraordinary circumstances appear in this case. Finally, Weld County understands that a portion or all of Suncor's requests to be relieved of its financial obligations to improve and maintain the road immediately adjacent to its proposed facility is based on the argument that the property taxes generated by the existence of the facility should take care of this obligation. That argument does not take into account either the actual use and allocation of property taxes, or the fact that the heavy truck traffic generated by the facility will create a significant and disproportionate amount of damage to the road. It is important to keep in mind that when the Weld County Board of County Commissioners adopted the Resolution approving the Site Specific Plan and Use by Special Review Permit #1709 for a Mineral Resource Development Facility, that approval was specifically dependent upon Suncor and Weld County entering into an agreement regarding proportionate responsibility for road improvements and maintenance. The approval was further dependent upon Suncor's recording of a final plat within 180 days of the Board's Resolution. That Resolution was adopted on December 16, 2009. At this time, neither of those requirements has been met. Therefore, at this time, the matter is set for Board review on May 14, 2012. Your client will be asked what its intentions are as to whether it wishes to meet the conditions of the USR as approved, whether it wishes to amend the USR, or something else. Yours truly, Stephanie L. Arries Assistant Weld County Attorney Pf: B. Barker P. Persichino D. Bauer T. Jiricek C. Gathman April 23, 2012 James B. Borgel, Esq. Holland & Hart, LLP 555 17`h Street, Suite 3200 Denver, Colorado 80202 RE: Building Permit for Pump Station at Fort Lupton Facility Dear Mr. Borgel: The materials you sent in your email and your letter have been considered for some time by the Weld County Department of Public Works, the Weld County Department of Planning Services, and by the Weld County Attorney's Office. Initially, I and other Weld County employees spoke with federal employees who are specifically charged with the enforcement of the Pipeline Safety Act, Each of those employees consistently represented that local enforcement of the building code is not preempted. They have said that the construction of the buildings under consideration in this case is not a subject which is regulated by the Pipeline Safety Act. You had suggested that the County speak with Terry Larson, and our Building Official, Wendell Heyen did so. Mr. Larson and Mr. Heyen discussed this matter in some detail. Following their conversation, Mr. Heyen believed that both he and Mr. Larson agreed that the issuance of a building permit with the resulting inspections of certain aspects of construction is appropriate. Thereafter, I considered the submission of a request to the Department of Transportation for a Determination Letter in this matter. Several calls were made to Washington seeking information on the initiation of such a request. In that process, I was directed to an attorney in the Department of Transportation Pipeline and Hazardous Materials Safety Division. I spoke with her and at her suggestion, forwarded the materials and letter you had emailed to me to her. That attorney is Bryn Karaus, Attorney Advisor, PHMSA Office of Chief Counsel in Washington, D.C. Ms. Karaus agreed to review the materials and to let me know what she thought. I received an email from her last week. A portion of her response is set forth below: I reviewed the letter from Suncor and discussed the issue briefly with some of my colleagues here. My initial reaction is that Suncor's argument is too broad — that they are trying to use the term "safety" in the PSA to preempt Weld County regulations that are not about pipeline safety April 23, 2012 Page 2 issues. You can distinguish each of the cases that they cite in their letter — in Algonquin the operator was regulated not only under the Pipeline Safety Act but also by FERC under the NGA; Kinley v. Iowa was about state regulation of hazardous liquid pipelines, not building codes; Sneddon was about a permitting program for transportation of oil and gas, not building codes; Colorado v. Wright was about regulation of gas storage, not building codes. Therefore, after due consideration, Weld County's position in this matter remains the same. If Suncor wishes to build a pump house, the company must first obtain a building permit. In fact, building permits must be obtained for each building on the site, and this would include temporary offices and permanent buildings. The County will require an electrical permit for the site lighting and main service to each building or structure. The County will also require permits for the foundation upon which the equipment and building(s) would be installed. The County would not require permits for the underground pipelines. Suncor needs to be advised that based upon our current understanding of the proposed location of the new building the Department of Planning Services may not be able to issue building permits at this time. We understand that the new building will be located on the neighboring parcel (i.e., not the same parcel on which the current building exists).. The current pump building sits on the site covered by SUP -359. The proposed building site is on USR-1709. As conditionally approved a couple of years ago, USR-1709 did not contemplate the erection of this structure. The company must therefore, amend that USR before it may move to finalize USR- 1709 by signing the Improvements Agreement and recording the plat. If the company decides not to finalize USR-1709, the building issue may be resolved with a lot line adjustment, and by amending the existing SUP. Suncor should decide what approach it wishes to take and discuss that with staff from the Weld County Planning Department. Therefore, the County wishes to make it clear that the decision on the requirement of a building permit for the office/pump-house is final. If you wish to seek a Determination letter from the Department of Transportation, you may do so. However, pending the issuance of a decision by that Department that Weld County cannot require a building permit, the County's requirement will stand. Yours truly Stephanie L. Arries Assistant Weld County Attorney Pf: B. Barker P. Persichino D. Bauer T. Jiricek W. Heyen Esther Gesick From: Chris Gathman Sent: Thursday, April 26, 2012 8:02 AM To: Esther Gesick Subject: FW: Suncor/Weld County Spindle C Improvements Agreement Attachments: Weld County Comments_Spindle C Improvements Agreement (4-2-12).DOCX; Blackline 5313189 v.1 and v.4.DOC Esther, Here are some more exhibits for Suncor (USR-1709). This is scheduled to go back before the BOCC 5/14. Thanks! Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Stephanie Arries Sent: Thursday, April 26, 2012 7:34 AM To: Chris Gathman Subject: FW: Suncor/Weld County Spindle C Improvements Agreement Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries(cilco.weld.co.us 1 STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: James Borgel [mailto:JBBorgel@hollandhart.com] Sent: Monday, April 02, 2012 11:51 AM To: Bruce Barker; Stephanie Arries Cc: 'Rock, Jacy' Subject: FW: Suncor/Weld County Spindle C Improvements Agreement Bruce and Stephanie: Attached for your review is our latest cut at the Improvements Agreement relating to the Suncor truck unloading facility on WCR 20. As I mentioned when we spoke some time ago, Suncor's management has been finding it difficult to get their arms around several of the issues we discussed, and the language in the attached still requires Suncor's approval if it is acceptable to the County. However, in the interest of moving this along and hopefully reaching final agreement by the next time it is scheduled for review by the BOCC on May 14`h, I am sending this to you for your review. The attached redline shows the changes we made to the last version of the Agreement that we received from Stephanie prior to our last meeting. I believe that these changes are all consistent with our last round of discussions, with two exceptions. First, we continue to base the calculation of "proportionate share" in Section A.5.0 on all traffic using WCR 20, and not just truck traffic. The County's language, which bases the proportionate share calculation only on truck traffic, ignores the substantial existing levels of automobile traffic and does not fairly address the effect of existing background traffic levels on that road. We believe that the County's approach is unfair and inconsistent with the BOCC's direction that Suncor only be responsible for its fair share of those costs. Second, we have deleted the provision requiring Suncor to post security for the obligation to repair road damage caused by the project. This ongoing repair obligation has been a significant point of contention for Suncor's management, which strongly believes that ongoing road maintence and repair should be performed by the County and funded with the additional (and substantial) tax revenues that will accrue to the County as a result of the project. Again, while this approach has not been approved by Suncor's management, we are proposing that we retain the language we have discussed regarding road repairs, but delete the security requirement. Dave Bauer indicated at our last meeting that the actual amounts associated with road repairs are quite small. The ongoing expense and administration associated with a maintenance bond does not seem worth it. Once you have had a chance to review, please let me know if these proposed revisions are acceptable to County or if you have additional comments. I'm sure we would all like to have this wrapped up in n time for the May 14th BOCC meeting. Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgel@hollandhart.com 2 HO1 LANE)&HART A IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS SUNCOR ENERGY - USR-1709 THIS AGREEMENT, made and entered into this day of , 2012, 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: A 12.3 acre portion of Lot A of AmRE-2918 being Part of the NW4 of Section 20, T2N, R66W 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 hereinafter defined) of the cost of the Off -Site Improvements, both of which are described in this Agreement and generally described in Exhibit A to this Agreement; 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 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 1 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 paved surface 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 may 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 shall not include any costs incurred by Applicant to construct and install acceleration and deceleration lanes and stop sign(s) at the Project entrance, the costs of which 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, 2 adequate turning radii, and pavement markings. In addition a geotechnical asphalt 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, that Applicant shall have no obligation to construct the Off -Site Improvements until Applicant has commenced use of the Property for purposes authorized by USR-1709. Applicant shall have ninety (90) days from its receipt of such notice to submit Off -Site Construction Plans and Cost Estimates to the County for review, and following acceptance of the Off -Site Construction Plans by County, which shall not be unreasonably withheld or delayed, Applicant shall provide County with an estimated cost for the proposed Off -Site Improvements, together with Collateral in an amount equal to the Applicant's Proportionate Share 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 Construction Plans, and that the costs of future improvements are not yet known. The parties acknowledge that County will require at least thirty (30) days to review the construction plans. 3 5.0 Applicant's Proportionate Share: Applicants's Proportionate Share shall be based upon the traffic counts taken at the time of the VPD Trigger, using the ESAL 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 for 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 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. For purposes of this calculation, each vehicle using the Haul Route shall be treated equally, and truck traffic shall be weighted the same as other vehicular traffic. 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. 4 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 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. 5.0 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, 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 5 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. C. 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 Improvement 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 the Project first becomes operational. 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 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." All engineering services retained by Applicant in connection 6 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. 3.0 Construction: Applicant shall furnish and install the On -Site and Off -Site Improvements as generally shown in Exhibit A. 3.1 All construction shall be in strict conformance with this Agreement and with the Improvement 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 Release of Liability: To the extent allowed by law, each party to this Agreement (the "Indemnifying Party") shall indemnify and hold harmless the other party (the "Indemnified Party") from any and all liability, loss and damage the Indemnified Party 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 Indemnifying Party or its officers, agents, employees, except for the liability, loss, or damage arising from the negligent or intentional act of the Indemnified Party. All contractors and other employees engaged by Applicant and County in construction of the On -Site and Off -Site Improvements shall maintain adequate worker's compensation insurance and public liability insurance coverage, and shall 7 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. 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 Improvement 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 Improvement 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. 8 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 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 B, must be equivalent to One -Hundred Percent (100%) of the value of the On -Site Improvements as shown in this Agreement 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 and/or right -of way permit. 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 Improvement 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 C hereto. If the On -Site Improvements are not completed within these time frames, 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 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. 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. 9 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 2-3-30 B.4. 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 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. 10 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 plans. The letter shall indicate if the fire hydrants are operational and 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. 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 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 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. 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 Engineer to act on his/her behalf. 11 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 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- 200.E 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. 12 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. 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.14: 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 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 13 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 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 915 Tenth 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. 14 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. 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. 15 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: Name: Its: STATE OF COLORADO ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2012, by as of SUNCOR ENERGY (U.S.A.) PIPELINE COMPANY, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public COUNTY: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Barbara Kirkmeyer, Chair WELD COUNTY CLERK TO THE BOARD By: Deputy Clerk to the Board APPROVED AS TO FORM: County Attorney 16 EXHIBIT A Description of On -Site and Off -Site Improvements A-1 EXHIBIT B Estimates of Project Collateral Amounts 1. Preliminary Estimate of Off -Site Improvements Construction Costs 2. Preliminary Estimate of On -Site Improvements Construction Costs B-1 EXHIBIT C Schedule for Completion of On -Site Improvements 5313189A DOCX C-1 i" wN'I Y COMMENTS)IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS SUNCOR ENERGY - USR-1709 THIS AGREEMENT, made and entered into this day of , 2011,2012 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: A 12.3 acre portion of Lot A of AmRE-2918 being Part of the NW4 of Section 20, T2N, R66W 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 hereinafter defined) of the cost of the Off -Site Improvements, both of which are described in this Agreement and generally described in Exhibit A to this Agreement h h hed her a ti and WHEREAS, Applicant further acknowledges that the Permit is also conditional upon Applicant's compliance with all of the requirements and conditions set lbr theforth 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"Development Standards,; and 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, or to providc collateral- for and commence work on a Proportionate Share of the "Off Site Improvements," a: 1 also 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 paved surface 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 may 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. Costs associated with the construction of thest lanes and the stop sign shall be paid solely by Applicant. 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 shall not include any costs incurred by Applicant to construct and install acceleration and deceleration lanes and stop sign(sl at the Project entrance, the costs of which 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 the Colorado Department of Transportation ("CDOT")CDOT. Applicant shall be responsible for funding its "Proportionate Share" of the Off -Site Improveme4sImprovement 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 2 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 asphalt 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 WCR 20 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, 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 improvementsImprovements must be undertaken in the following calendar year provided however that Applicant shall have no obligation to construct the Off -Site Improvements until Applicant has commenced use of the Property for purposes authorized by USR-1709. Applicant shall have ninety (90) days from its receipt of such notice to submit Off - Site Construction Plans and Cost Estimates to the County for review, and following acceptance of the Off -Site Construction Plans by County, which shall not be unreasonably withheld or delayed, Applicant shall provide County with an estimated cost for the proposed Off -Site Improvements, together with Collateral in an amount equal to the Applicant's Proportionate Share 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 3 Construction Plans, and that the costs of future 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: Applicants's Proportionate Share shall be based upon the truck traffic counts taken at the time of and following the VPD Trigger, using the ESAL calculation method to determine the impacts of truck traffic volumes created by the Applicant (or its contractors, clients, tenants, or customers). I he amount and extent of dust control and paving County personnel. In order to accurately determine percentage of Applicant's truck 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 herein ft r 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). Applicants proportionatcHaul R ute s in accordance with the procedures set for in Section A.4.0. Applicant's Proportionate Share shall isbe determined by the following formula: "Truck Traffic on Haul Route Related to Applicant's Activities!" divided by "Total Truck -Traffic on Haul Route'. the County has and will have sole responsibility for determination of the percentage of truck traffic -et-all County roads.." Truck traffic related to Applicant's activities and to back _round 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 Owner.nroperty owners if anv who may have Road Maintenance obligations for the above described .section of thchave 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 thcany 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 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 ESAL calculation method. 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 it's Proportionate Share ofa 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 Proportionate Share will be determined in accordancc with the process outlined in paragraph 5 ahovcshare of dust control costs on the Haul Route shall 4 be calculated by multi n1vine 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. For purposes of this calculation, each vehicle usine the Haul Route shall be treated equally, and truck traffic shall be weighted the same as other vehicular traffic. 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. County roadr in the vicinity of the site attributable to the Project activities will be determined by traffic county conducted by County on the primary and any Applicant requested alternate or revised haul routes. 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. In the event of art- amendment. the provisions of -this- Agreement shall apply to Applicant's obligcuions to maintain and/or improve the road(s) used as the new haul route. 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 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 5 and paving measures will be determined by site -specific conditions at the time, as reasonably determined by County. 5.0 Road MaintenanccDama.e 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, Applicant shall be responsible for maintenance andthe 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 MaintenaneLRepairs"). 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 or maintenance issues onto the Haul Route that a+eis 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 Maintenance activitie: Repairs and the parties shall thereafter meet at the location where the Road Maintenance+sRepairs are required and shall reasonably agree on the cost and the scope of any such Road Maintenance ohligation. Repairs. C. 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, which is attached hereto and made a part hereof) 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 Improvement 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 the Project first becomes operational as defined in Section A.5.O of this Agreement. 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 6 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 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." 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 Drawingsconstruction 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. 3.0 Construction: Applicant shall furnish and install the On -Site and Off -Site Improvements as generally shown in Exhibit A. 3.1 All construction shall be in strict conformance with this Agreement and with the Improvement 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 7 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 Release of Liability: Property OwnerTo the extent allowed by law, each party to this Agreement (the "Indemnifying Party") shall indemnify and hold harmless the Countyother party (the "Indemnified Party") from any and all liability loss and damage Countythe Indemnified Party 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-afI tudgments 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 Countvthe negligent or intentional act of the Indemnifying Party 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 ees ooh�le acting within the scope of their employmentnegligent or intentional act of the Indemnified Party. All contractors and other employees engaged by Applicant and County in construction of the imjwo etsOn-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 obli_ations 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 sea.. 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 On Site 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 On Site Improvements. 6.2 County shall issue building permits for construction of the Project if the On Site Improvements detailed herein have been started but not completed and 8 shall continue to issue building permits so long as the progress of work on the On Site 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 On Site Improvements. Following such request, the County Engineer and/or the Weld County Department of Planning Services shall promptly inspect the subject On Site Improvements, and notify Applicant of any non-compliance with the approved On Site Improvement Plansplans. 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- On Site Improvements after notification from Applicant that said deficiencies have been corrected. If the County Engineer and/or Department of Planning Services find that the On Site -Improvements are constructed according to the approved On Site Improvement 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 On Sitethe Improvements, County shall fully accept the On Site Improvements or portion thereof. 7.0 General Requirements for Collateral: 7.1 County requires Property--OwnerApplicant to provide collateral to guarantee the following obligations of Property OwnerApplicant under this Agreement: (1) "Project Collateral" shall be provided separately for completion of the On -Site Improvements and Applicant's Proportionate Share of the Off -Site Improvements; and (2) "Warranty Collateral" shall be required for all Improvements during the warranty phase; and (3) Road Maintenance Collateral to be kept in place for a period -of ( ) years following completion of the Project, vhichever first occur'. 7.2 Project Collateral submitted to County to guarantee completion of the improvementilmprovements identified on the accepted Construction Plans and further enumerated in the costs listed in Exhibit B, must be equivalent to One -Hundred Percent (100%) of the value of the On -Site Improvements as shown in this Agreement and Applicant's Proportionate Share of the Off -Site Improvements. Project Collateral for On Site Improvements mentioned in Section A.1.0 of this Agreement that include On Site Improvements within the public right of way can be included as part of the On Site collateral amount, if cle'irly delineated on accepted Construction Plans and differentiated on Exhibit B as On Site Improvement Costs. Such collateral shall be provided to County and shall be held in total until all improvements have been completed. This collateraluntil released in whole or in part by County in accordance with Section D 8 of this Agreemen . This Project Collateral must be submitted to County upon the 9 submission of the Applicant's application for a grading and/or right -of way permit. Project Collateral for the Off Site Improvements shall be determined as set forth in Section A./L0. 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 itsCounty's written acceptance of the impro ement(s)Improvements or portion thereof. 7.'l Road Maintenance Collateral shall be submitted to County upon the, release of the warranty collateral by the Board of County Commiriioners. The, amount of the collateral required for road maintenance shall be established by the. Weld County Department of Public Works in accordance with Section 13.5.0. Road maintenance collateral .,half he held by County as long as Applicant': obligation to pay for Road Maintenance in accordance with Section 13.5.0 is in effect. If any of this collateral shall he collected by County. Property Owner shall replace the amount within six (6) months. 7.5 So long as Applicant's obligation to provide Road Maintenance Collateral is in effect, the amount of Road Maintenance Collateral shall he adjusted annually, during the month of January, for inflation. The First adjustment shall be made no less than twelve months after. and in no event later than twenty four months from, the execution of this Agreement. The adjustment shall be equal to the inflation rate ' on the "Construction Cost Index Report' as published by the Colorado Department of Transportation. 7.4 7.6 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 improvementslmprovements are updated and collateral is provided in the amount of one -hundred percent (100%) of the value of the On -Site improvementslmprovements, and the On -Site Improvement 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 EC= hereto. If the On -Site Improvements are not completed within these time frames, 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 or, performance of work, or -construction or installation of improvements related to the Project and/or other related operations pursuant to USR-1709 that require a grading or building permit from the County pursuant to the Weld County Code. 7.5 7.7 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 improvement.Improvements as set forth in this reveme ts—Agreement; the 10 LOC shall be subject to the requirements of Weld County Code Section 2-3-30 B. I he Property Owner 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 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 improvementsImprovements as set forth in this Improvement Agreement. The surety bond shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. 7.7 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 On Site. Improvements and Applicant's Proportionate Share of the Off Situ lmprovement.'as set forth in this Agreement. 7.8 7.10 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 Property OwnerApplicant 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 OwnerApplicant within sixty (60) days of the Board's notice to Property OwnerApplicant that the rating has fallen and that the collateral must be replaced. Property Owner 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 Colorado Department of Transportation (CDO'l )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 11 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 the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and 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 Construction Plans. 8.7 Following the submittal of the Statement of Substantial Compliance and written recommendation of acceptance of the improvementslmnrovements 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. 8.8 For all off situOff--Site and on site improvemcntsOn-Site Improvements (including improvements to public rights -of -way or easements), the request for release of -Project Collateral� shall be accompanied by _Warranty CollateraP in the amount of fifteen percent (15%) of the value of the improvementalmnrovements as shown in this Agreement. 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 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. 8.10 "Road Maintenance Collateral" shall be maintained as long as USR 1709 is active and returned to the Property Owner upon vacation of associated land use agreement or permit. It shall he adjusted annually by the inflation rate based on the "Colorado Construction Cost Index Report" as published by the Colorado Department of Transportation. Road Maintenance Collateral shall be adjusted annually, during the + r .,n I he First adj a do made no less than twelve months after. and in no event later than twenty four months from the execution of this Agreement 12 9.0 Successors and Assigns: Except as specified below.Applicant shall have the right to deleeate, transfer or assign this Agreement may not be delegated or assignedto a successor owner of the Property in whole or in part by either party hereto without County approval, provided, however, that Apnlicant shall onlw be released from its obligations under this Agreement with the express written consent of the other partyCoun y and the written Agreementagreement of the party to whom the obligations under this Agreement are assigned. Consent to a delegation or an assignment will not be unreasonably withheld, that in considering a request for assignment, the County shall be entitled to consider the financial capacity of the proposed assignee to perform the obligations of Applicant under this Agreement. Notwithstanding the previous two sentences, Applicant by County. County's rights and obligations to improve and maintain the improvements outlined under this Agreement mayshall automatically be delegated and assigned to a purchaser or lessee of a portion or all of the Property or business operation conducted thereon. Notwithstanding any other provisions of this Agreement or of this paragraph. County may delegate or asr;ign its rights and obligations under this Agreement without the consent of Applicant (or its assigns_ delegates or successors in interest) to another governmental entity which, transferred or assigned to any municipality which. by and through annexation or agreementnroceedingshas assumed jurisdiction and maintenance responsibility over the roads affected by this Agreement. ThisAll 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 Engineer to act on his/her behalf. E. Termination of Agreement: 1.0 1.0 Termination Event: This Agreement shall terminate upon the earliest of the following events: 1.1 1.1 Cessation of all Permit Related Activities: . Termination of this Agreement shall occur upon Operator'Jat 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. Operator Applicant or. if applicable the entity operating the facilities authorized by USR-1709 ("Operator") shall provide written notice to Property Owner and County of said cessation of activity, which County shall then verify. If written notice is not provided to County, Termination of this Agreement hallshall not occur until County has determined that the Use by Special Review is inactive, which shall beoccur 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 1.2 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1709 by New Property Owner: 13 This Agreement shall terminate foilin the event that County's execution of executes a new Improvements Agreement According to Policy Regarding Collateral for Improvements= USR-1709 with a new Property Ownerowner who has purchased the Property, and intends to make use of the rights and privileges available to it through the then existing USR 1709._ -f4-1.3 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1709 by New Operator: This Agreement shall terminate folewittgin the event that County's execution of executes a new Improvements Agreement According to Policy Regarding Collateral for Improvements=USR_1709 with a new operator Operator who has assumed the operation of the business on the Property which business activities are permitted by the then existing USR 1709.= 2.0 2.0 Termination Procedures. 2.1 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 andApplicant and, if applicable, to Operator. If the County determines that pursuant to the terms of this Agreement, the Operator must complete any of the Improvements required b 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 countyCounty determines that all of the. improvememsImprovements have been completed. 2.2 2.2 Termination Procedures Pursuant to Transfer of Ownership of the Property or Transfer of Operations: If the Property OwnerApplicant or Operator desires to assign itstheir rights and obligations under this Agreement to a successor Property Owner or Operator, the Property Ownerowner or Operator of the Property and to be released from their obligations under this Agreement, the Applicant or Operator applicable 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 improvemcnt:,Improvements required under the terms of this Agreement to determine whether the improvementsImprovements have been completed. If the improvementslmprovements have not been completed, the Property OwnerApplicant and/or Operator shall either complete the improvements or postImprovements or the successor Property owner or Operator shall post substitute 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 14 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 Operator and/or Property Owner would be required to perform road maintenance within the following twelve months had the Agreement not been assigned. If road maintenance is, in the opinion of County, required, Property Owner and/or Operator 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 lhr Improvements USR 1709 with a succertme- Property Owner and/or Operator prior to the performance of the road maintenance or the posting of collateral for said maintenance, unless the new Property Owner and/or Operator post.; collateral for the required mai ntenancelmnrovements. 3v0- 3.0 Consequence of Termination by Cessation of Permit Related Activities: Following County's confirmation that repe erApplicant and/or Operator has/have ceased all permit related activities and has/have completed previously uncompleted Improvements and or completed any required road maintenance, County shall release "~ope 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 IJ,S-R- 1709 with a Property Owner and Operator. USR-1709. 4.0 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 caner and/or Operator, the predecessor Property Owner and/or OperatorApplicant shall have no further rights and/or obligations under this Agreement or in USR-1709. 5v0-5.0 Consequence of Termination Pursuant to Paragraph EF.-l-1-:014: In the event that activities related to USR-1709 cease as a result of the revocation of the permit as described in Paragraph EF.11.03.0 of this Agreement, neither Property Owner nor Operator willApplicant shall be released from any of the obligations imposed by the terms of this Agreement only after Property O vnerApplicant's successful completion of all imprevementslmprovements required under this Agreement or after County accessesassesses the collateral to the extent necessary to complete improvement.;Improvements 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. 15 2.0 T0 -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. 1 Si) 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 initiate legal or equitable proceedings to enforce the Agreement, or any combination of these processes. 4.0 9.0 -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: With a copy 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 Weld County Attomey=_s Office Attn: Weld County Attorney 915 Tenth 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 16 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 10.0 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. 6.0 11.0 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 12.0 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. 17 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: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2011.2012 by as of SUNCOR ENERGY (U.S.A.) PIPELINE COMPANY, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public COUNTY: AlEST: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Barbara Kirkmeyer. Chair WELD COUNTY CLERK TO THE BOARD Barbara Kirkmeyer, Chair By: Deputy Clerk to the Board APPROVED AS TO FORM: 18 County Attorney 19 EXHIBIT A (Insert Description of On -Site and Off -Site ImprovementsS A-1 EXHIBIT B Estimates of Project Collateral Amounts 1. Preliminary Estimate of Off -Site Improvements Construction Costs 2. Preliminary Estimate of On -Site Improvements Construction Costs B-1 EXHIBIT C Schedule for Completion of On -Site Improvements 5313189 1-9J)OCX-Ok(ei-d-(-ate+Ji{'oi' Wh(H9i C-1 Document comparison by Workshare Professional on Monday, April 02, 2012 11:32:30 AM Input: Document 1 ID interwovenSite://WORKSITE.HOLLANDHART.COMNVork site/5313189/1 Description #5313189v1<Worksite> - Weld County Comments/Spindle C Improvements Agreement Document 2 ID interwovenSite:/NVORKSITE.HOLLANDHART.COMIWork site/5313189/4 Description #5313189v4<Worksite> - Weld County Comments/Spindle C Improvements Agreement (4-2-12) Rendering set Standard Legend: Insertion Deletion Moved from Moved to Style change Format change Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 166 Deletions 202 Moved from 1 Moved to 1 Style change 0 Format changed 0 Total changes 370 5482216 1.DOC (Blackline) MEMORANDUM TO: Weld County Commissioners DATE: March 12, 2012 FROM: Chris Gathman SUBJECT: USR-1709 Status Timeline: • Approved by the Board of County Commissioners 12/16/2009. • 7/2010 - Extension to record the plat granted by the Board of County Commissioners until 12/31/2010. • 12/17/2010 - Extension to record the plat granted by the Board of County Commissioners until 6/30/2011. • Late plat notification letter sent via certified mail 8/4/2011. • Certified mail receipts received 8/9/2011, 8/10/2011, 8/16/2011. • Letter to Board of County Commissioners from Jim Borgel — Holland & Hart requesting a worksession to address outstanding issues on the improvements agreement. • 2nd Late plat notification letter sent via certified mail 9/26/2011. • Certified mail receipts received 10/3/2011, 10/4/2011 & 10/6/2011. • 3rd late plat notification letter sent via certified mail 12/22/2011. • Certified mail receipts received 12/28/2011 & 12/30/2011. • E-mail sent to J. Borgel 3/2/2012 requesting status of USR-1709. • E-mail response from J. Borgel received 3/5/2012. • E-mail response from J. Borgel received 3/12/2012 indicating that a response from the manager of the project is still pending. Remaining Outstanding Conditions of Approval: All conditions of approval have been addressed with the exception that 1) the improvements agreement needs to be finalized, submitted and accepted by the Board of County Commissioners and 2) the final USR plat needs to be submitted for recording. Staff Recommendation: Jim Borgel — Holland & Hart is requesting additional time to discuss two remaining issues in regards to the improvements agreement with Suncor management. Per correspondence from Mr. Borgel received 3/12/2012, Mr. Borgel has indicated that Suncor's in house council is still trying to get in contact with the manager of the proposed facility re: the improvements agreement. Staff recommends that this case be continued for sixty (60) days. Esther Gesick From: Sent: To: Subject: FYI. Chris Gathman Monday, March 12, 2012 7:23 AM Esther Gesick; Barbara Kirkmeyer; William Garcia; Sean Conway; Douglas Rademacher; Dave Long FW: Status on Suncor USR (USR-1709) Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: James Borgel[mailto:JBBorgel@hollandhart.com] Sent: Monday, March 12, 2012 7:20 AM To: Chris Gathman Cc: Bruce Barker Subject: Re: Status on Suncor USR (USR-1709) Chris: The manager at Suncor who is responsible for this project has been tied up on a project in Canada and has not been able to get back to us regarding the Improvements Agreement. Jacy Rock, Suncor's in house counsel, has been diligently trying to pin him down, so far without success. As I mentioned in my previous e-mail, I think the only significant outstanding issue is the ongoing obligation for road maintenance in the County's form agreement, which has been causing Suncor a great deal of heartburn. Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 1 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgel@hollandhart.com IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. On Mar 5, 2012, at 9:01 AM, "Chris Gathman" <cgathman@co.weld.co.us> wrote: Jim, Sorry, I thought I had e -mailed you about the rescheduling of the hearing back in January. Do you have any idea when your client will authorize you to send this agreement to the County Attorney? — At a minimum I would like to advise the Board as to the status on this. Sincerely, Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 <image001.jpg> Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: James Borgel[mailto:JBBoroel©hollandhart.com] Sent: Monday, March 05, 2012 8:08 AM To: Chris Gathman Cc: Bruce Barker; Brad Yatabe Subject: RE: Status on Suncor USR (USR-1709) We continue to work on getting the agreement finalized. The sticky issue continues to be the ongoing maintenance obligation. I have prepared a revised agreement that attempts to address this issue, but have not gotten authorization from my client to send it to Bruce for review. I never received any notice of the rescheduled date, so I did not know that the hearing had been postponed to next Monday. 2 Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgel@hollandhart.com <image005.png> IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. From: Chris Gathman [mailto:cgathman©co.weld.co.us] Sent: Friday, March 02, 2012 10:51 AM To: James Borgel Cc: Bruce Barker; Brad Yatabe Subject: Status on Suncor USR (USR-1709) Dear Jim, I noticed that we have a agenda item scheduled before the Board of County Commissioners on Monday, March 12th 9 AM regarding the status of USR-1709. This hearing was continued from January 11th. I know that the main issue was finalizing the improvements agreement (and then submitting the plat for recording). I have not heard anything since January on this. Do you know the status on this? Sincerely, Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 <image006.jpg> Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is 3 WEL'W 0UNTY u MEMORANDUM TO: Weld County Commissioners DATE: January 10, 2012 FROM: Chris Gathman SUBJECT: USR-1709 Status Timeline: • Approved by the Board of County Commissioners 12/16/2009. • 7/2010 - Extension to record the plat granted by the Board of County Commissioners until 12/31/2010. • 12/17/2010 - Extension to record the plat granted by the Board of County Commissioners until 6/30/2011. • Late plat notification letter sent via certified mail 8/4/2011. • Certified mail receipts received 8/9/2011, 8/10/2011, 8/16/2011. • Letter to Board of County Commissioners from Jim Borgel — Holland & Hart requesting a worksession to address outstanding issues on the improvements agreement. • 2nd Late plat notification letter sent via certified mail 9/26/2011. • Certified mail receipts received 10/3/2011, 10/4/2011 & 10/6/2011. • 3rd late plat notification letter sent via certified mail 12/22/2011. • Certified mail receipts received 12/28/2011 & 12/30/2011. Remaining Outstanding Conditions of Approval: All conditions of approval have been addressed with the exception that 1) the improvements agreement needs to be finalized, submitted and accepted by the Board of County Commissioners and 2) the final USR plat needs to be submitted for recording. Staff Recommendation: Jim Borgel — Holland & Hart is requesting additional time to discuss two remaining issues in regards to the improvements agreement with Suncor management. He indicated he should have input from Suncor upper management on these issues by the end of the week. Staff recommends continuing this case out a minimum of 30 days to allow negotiations/discussions to be completed on the improvements agreement and then finalize the two remaining conditions of approval. /9L;2a, 9 Esther Gesick From: Sent: To: Subject: Esther, Chris Gathman Monday, January 09, 2012 1:15 PM Esther Gesick FW: Suncor Spindle C Here is an item for USR-1709—Suncor—scheduled for Wed. 1/11 at 9 AM. Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 N 6', i1E J ftort WE' O T C .1 M u Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: James Borgel[mailto:JBBorgel©hollandhart.com] Sent: Monday, January 09, 2012 10:59 AM To: Chris Gathman; Bruce Barker Subject: Suncor Spindle C Chris and Bruce: I understand from Chris' last letter that we are on the agenda for this Wednesday's BOCC meeting to review the status of the USR for Spindle C. Since we have been meeting regularly to finalize the terms of the Improvements Agreement, I am hoping that we can avoid a trip to Greeley on Wednesday and that staff would be willing to grant Suncor additional time to complete our negotiations. As Bruce and I have discussed, I believe that our last meeting with staff was productive and we have narrowed the discussions down to two remaining issues that require input from Suncor's senior management. We hope to have that input by the end of this week, but we will not be in a position to address those remaining issues by Wednesday's hearing. Please let me know your thoughts, Jim James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 1 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: jbborgel@hollandhart.com HC)ILAND&HART A IRS CIRCULAR 230 DISCLOSURE: This e-mail and any attached documents may contain provisions concerning a federal tax issue or issues. This e-mail and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service CONFIDENTIALITY NOTICE: This message is confidential and may be privileged. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error; then please delete this e-mail. Thank you. u • DEPARTMENT OF PLANNING SERVICES 1555 N 17th Ave Greeley, CO 80631 cgathman@co.weld.co.us PHONE: (970) 353-6100, Ext. 3540 FAX: (970) 304-6498 December 22, 2011 Suncor Energy, Inc. 7800 E. Orchard Road Suite 300 Greenwood Village, CO 80218 Blaine Ayers Suncor Energy, Inc. P.O. Box 369 Guernsey, WY 82214 James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Subject: 3r° Letter - Outstanding Conditions of Approval and Items to be Completed Prior to Recording the Plat for Use by Special Review, USR-1709. Dear Applicant: The Planning Department is working through our historical case files in an effort to resolve unrecorded and outstanding land use permits. You are receiving this letter because you have applied for a Use by Special Review (USR) permit with Weld County but have never followed through the steps to complete the process. You should have received another letter from me in August 2011 and September 2011 concerning the same topic. On December 16, 2009, your application for a Use by Special Review was approved by the Weld County Board of County Commissioners with specific Conditions of Approval. At this time the conditions of approval have not been satisfied and a Mylar Plat has not been recorded with Weld County Clerk and Recorder. One of the required Conditions of Approval in the Board of County Commissioners resolution grants the applicants one -hundred (180) days to submit a Mylar Plat, and provide written evidence that all conditions outlined in the resolution have been completed. Should you choose not to complete the Use by Special Review process and provide the required Mylar Plat, the Department of Planning Services requests written notification of your decision to withdraw the application and that the use is not active on the property. If you are unable to meet the Conditions of Approval and record the plat by January 11, 2012 an initial hearing is scheduled with the Board of County Commissioners. The hearing will take place at the Weld County Administration Building, located at 1150 O Street, at 9:00 am on January 11, 2012. It is strongly ioLaoac encouraged that you attend this hearing. At this hearing the Board of County Commissioners has the authority to grant additional time to meet all the conditions/requirements of approval and record the plat or schedule a final determination hearing to rescind approval of Use by Special Review, USR-1709 and deny the application. If you chose to withdraw the application please sign and date the enclosed form and return to the Weld County Department of Planning Services, Attn: Chris Gathman, 1555 N 17th Ave., Greeley, CO 80631. If you have further questions, please contact me at the above address or call (970) 353-6100 x 3540. Sincerely, Chris Gathman Planner III SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete Item 4 If Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: 7?OC) F, o`rc rQ R $, 5t,3a GccLvxWWSL V r kL , Co, ZIOg COlt IPLETE THIS SECTION ON DELIVERY A. Signet X ❑ Agent nddressee B. Received by (Printed Name) C. Date of Delivery D. Is delivery address different from item 1? O Yes If YES, Ftrle MetD ❑ No DEC 30 7011 tot s 5 uepaltmam Fl Leh Q6u O Registered 0 Return Receipt for Merchandise 0 Insured Mail Cl C.O.D. 4. Restricted Delivery? (Exam Fee) 0 Yes 2. Article Number ( iianaferfrom servrce lebe- PS Form 3811, February 2004 7010 1670 0000 2045 4858 c0 c0 L1 O ru O O O O r -B rR C O r Domestic Return Receipt U.S. Postal Service CERTIFIED MAIL, Insurance RECEIPT Coverage vrovided) (Domestic Mail Only; t Postage Certified Fee Return Receipt.Fee (Endorsement Required) Restricted DeliveryFee (Endorsement Required) Total Postage & Fees Street, Apt. No.. '7 ogOC"t, C)- xko, }- orPOBoxNo. (( q q City, State, ZIP+4 dC �', ( A. , (A. pct\ (% L"nWCzi :� Postmark Here PS Form 3800. August 2006 See Reverse for Instructions 102595O2 -M-1540 SENDER: COMPLETE THIS SECTION • Complete Items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: knu-s 5ur\co, 1 $��<, 61.)e-c(At) COMPLETE THIS SECTION ON DELIVERY A. Sig re ❑ Agent ❑ Addressee act by,(Prig �N ) C. Date of Delivery C2 h Jvt(V1-4 Jvi /P -077 -if D. Is delivery address different from item 1? ❑ Yes If YES, enter delivery address below: CI No RECEIVED `Lt a4 lb 3. Service Type oiy ❑ lxetessy>apnrtment �,�n,d EFg-Brugl-Ifftit for Merchandise O Insured L.O. 4. ResMcted Delivery? (atm Fee) ❑ Yes 2. Article Number (Transfer from service label) PS Form 3811, February 2004 7010 1670 0000 2045 4889 Domestic Return Receipt U.S. Postal Serviceeir CERTIFIED MAIL,,, RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Sent To r�0�r�5�5` C. _si11............................. .............. •--•-•-•-•------ orrPD 80x Na PO or PO box No. ............ .L...-.--.....-. 6 Clry, Slate, ZIP+4 ' U P s 1 ....voctions Postmark Here PS Form 3800 102595-02-M-1540 SENDER: COMPLETE THIS SECTION • Complete hems 1, 2, and 3. Also complete item 4 If Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: LkNtS lam• 1V1c Nod\A� H0. r_` -F sss i11 StTta-, 5v;k 3 CO. - oaf COME! ETE THIS SECTION ON DELIVERY XT J°'I B. Received by (Printed Name) C. Date of Delivery ❑ Agent O Addressee D. led If YI ? ❑ Yes O No Ott 282011 Weld County rianning Department 3. Service Type SL.Cer0aed Mall ❑ Express Mall ❑ Registered O Return Receipt for Merchandise ❑ Insured Mail O C.O.D. 4. Restricted Delivery? (Extra Fee) O Yes 2. Article Number (Transfer from service label) PS Form 3811, February 2004 7010 1670 0000 2045 4896 -D 1670 0000 2045 Domestic Return Receipt 102595-02-M-1540 U.S. Postal Service,, CERTIFIED MAIL. RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Sent To Postmark Here 401(041 Street, Ant No, 5Cs I-Tti••- },I A or PO Box No. > City. State. ZIPE4 15/,4<_ 3200 -3o-to L PS Form 3800. Au List 2006 See Reverse for Instructions DEPARTMENT OF PLANNING SERVICES 1555 N 17th Ave Greeley, CO 80631 cgathman@co.weld.co.us PHONE: (970) 353-6100, Ext. 3540 FAX: (970) 304-6498 September 26, 2011 Suncor Energy, Inc. 7800 E. Orchard Road Suite 300 Greenwood Village, CO 80218 Blaine Ayers Suncor Energy, Inc. P.O. Box 369 Guernsey, WY 82214 James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Subject: 2nd Letter - Outstanding Conditions of Approval and Items to be Completed Prior to Recording the Plat for Use by Special Review, USR-1709. Dear Applicant: The Planning Department is working through our historical case files in an effort to resolve unrecorded and outstanding land use permits. You are receiving this letter because you have applied for a Use by Special Review (USR) permit with Weld County but have never followed through the steps to complete the process. You should have received another letter from me in August concerning the same topic. On December 16, 2009, your application for an Use by Special Review was approved by the Weld County Board of County Commissioners with specific Conditions of Approval. At this time the conditions of approval have not been satisfied and a Mylar Plat has not been recorded with Weld County Clerk and Recorder. One of the required Conditions of Approval in the Board of County Commissioners resolution grants the applicants one -hundred eighty (180) days to submit a Mylar Plat, and provide written evidence that all conditions outlined in the resolution have been completed. Should you choose not to complete the Use by Special Review process and provide the required Mylar Plat, the Department of Planning Services requests written notification of your decision to withdraw the application and that the use is not active on the property. If you are unable to meet the Conditions of Approval and record the plat by January 11, 2012 an initial hearing is scheduled with the Board of County Commissioners. The hearing will take place at the Weld County Administration Building, located at 1150 O Street, at 9:00 am on January 11, 2012. It is strongly encouraged that you attend this hearing. At this hearing the Board of County Commissioners has the authority to grant additional time to meet all the conditions/requirements of approval and record the plat or schedule a final determination hearing to rescind approval of Use by Special Review, USR-1709 and deny the application. If you chose to withdraw the application please sign and date the enclosed form and return to the Weld County Department of Planning Services, Attn: Chris Gathman, 1555 N 17th Ave., Greeley, CO 80631. If you have further questions, please contact me at the above address or call (970) 353-6100 x 3540. Sincerely, Chris Gathman Planner III 7 • January 11, 2012 Department of Planning Services Attn: Chris Gathman 1555 N. 17`h Ave Greeley, CO 80631 RE: Use by Special Review Application (USR-1709) Dear Mr. Gathman, We wish to withdraw our Use by Special Review Application, Thanks. Please attach documentation that the use is no longer active on the property in question. Name date Name date SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: ;Y-1- Abcs . p.c. -3OA -3(05 Lxlernsc, GOY 1? 2214 A. Signa irticd by jpdrrted, J) RECE Weli ❑ Agent -Li O Addressee a3�Dy from item 1? ❑ ss below: O No 0CT 0 0 2011 County Planning Department C. Dada of delivery ((/// \(/e/s pe Certified Mail O Registered ❑ Insured Mall ❑ Express Mail ❑ Return Receipt for Merchandise ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) 2. Article Number (Transfer from service label) PS Form 3811, February 2004 7010 1870 0000 4773 5884 ❑ Yes Domestic Return Receipt 102595-02-M-1540 U.S. Postal Service CERTIFIED MAIL,M1 RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee O O Return Receipt Fee O (Endorsement Required) Restricted Delivery Fee C7 (Endorsement Required) o0 Total Postage & Fees rI O O Sent To 10. 4, Z — '5-lncor^ postmark Here Street, apf. or PO Box No. CiN. State, ZIP+4 / vt\S 6.6 ) W� " 22.14 PS Form 3800. Awl Iry strualions • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 17 l Yes 1. Article Addressed to: If YES, ente if 4 ryeqrry41d 11elow: O No C jt1ACc3 rt Weld County Planning Department 0O2 NFE 1 KIKELE*Wieill NOTIFY SENDER OF NEW ADDRESS :SUNCOR ENERGY USA INC 7/7 17TH ST STE 2900 DENVER CO 00202-3324 DC: 0020.2332425 *0020-O0S0O-27-44 Idise IIrrIIIIIIIIIIIIIIIIItI) I i)iI,II iiiii i iIiil,I,Lilil Illl I 0J 2. Article Number (Transfer from service label) PS Form 3811, February 2004 7010 1870 0000 4773 6973 Domestic Return Receipt 102595-02-M-1540 U.S. Postal Service CERTIFIED MAIL ri RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Sent To —3.41O3 t 03 .mac Postmark Here Street. Apt No.; auk.," U ' �'CIAW fl D u or PG Box No. h-° City. State, ZIP.4Il ,fir ((0 o?iZ 300 PS Form 3800. August 2006 See Reverse for Instructions ■ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: �,, 1 Tt�a LLF 5Ss I�t� - 5 tT ci\ 6.74,_3z0:3 CO. 20a01 2. Article Number (Transfer from service label) PS Form 3811, February 2004 A. Signature X A SA 1r7 B. Received • (Printed e) D. Is ❑ Agent ❑ Addressee C. Date of Delivery -// If YES, enter delivery address below: 0CT 032011 el0 Uou,ity g JepartRlent GREED: 1 OFFICE 1? ❑ Yes 0 No 3. Service Type ];[Certified Mail ❑ Registered ❑ Insured Mail 4. Restricted Delivery? (Extra Fee) ❑ Express Mall ❑ Return Receipt for Merchandise ❑ C.O.D. 7010 1870 0000 4773 5891 O Yes 0 Q▪ ' m In m J- S O 0 C C C r • Total Postage & Fees a O C C r Domestic Return Receipt U.S. Postal Service CERTIFIED MAIL,,, RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery. Fee eE (Endorsement Required) Sent To Street, Apt. No.; or PO Box No. City, State. ZIP+4 PS Foil 3800. Augur Postmark Here Vim-, (C) o2CL 102595-02-M-1540 HOLLAND&HART In 7 H E L A N OUT W E S August 19, 2011 VIA E-MAIL AND OVERNIGHT DELIVERY Mr. Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 Re: Use By Special Review USR-1709 Dear Chris: In response to your letter of August 4, 2011, Suncor Energy (U.S.A.) Pipeline Company ("Suncor") would prefer to work with Weld County to attempt to satisfy the remaining conditions of approval relating to the referenced USR, instead of withdrawing the USR application. Suncor understands that at this point the only condition of approval that remains unsatisfied is completion of an Improvements Agreement for the project. As I mentioned in my e-mail to you of August 3, 2011, the resolution of issues related to the Improvements Agreement for this project has been difficult. You will recall that much of the discussion at the public hearing on this project centered on what we felt were the County's unfair requirements for road improvements and road maintenance in the vicinity of the project. At that hearing the Commissioners and the County Attorney indicated that a work session with the Board would be available if that impasse were to continue. We have requested on several occasions that staff facilitate such a work session, but have never received a response. Our June 14, 2011 letter to County staff (copy attached), which outlined our specific objections to the County's proposals and requesting a work session with the Commissioners has gone unanswered. Your August 4, 2011 letter indicates that the County will work with us to complete the required conditions of approval. To that end, we are specifically requesting that the County facilitate a work session with the Commissioners as soon as possible so we can attempt to resolve all outstanding issues related to the Improvements Agreement and satisfy the remaining conditions of approval within the stated time frame. Holland & Hart LLe Phone 13031 295-8000 Fax [3031 295-8261 www.hollandhart.com 555 17th Street Suite 3200 Denver, CO 80202 Mailing Address P.O. Box 8749 Denver, CO 80201-8749 Aspen Billings Boise Boulder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Salt Lake City Santa Fe Washington, D.C. c� HOLLAND&HART. PR THE LAW OUT WEST Mr. Chris Gathman August 19, 2011 Page 2 Your August 4, 2011 letter indicates that the County will work with us to complete the required conditions of approval. To that end, we are specifically requesting that the County facilitate a work session with the Commissioners as soon as possible so we can attempt to resolve all outstanding issues related to the Improvements Agreement and satisfy the remaining conditions of approval within the stated time frame. Thank you for your assistance and we look forward to working with you to complete this project. Enclosure 5207434_1. DOCX Sincerely, /7 /1 , James B. Borgel of Holland & Hart LLP u DEPARTMENT OF PLANNING SERVICES 1555 N 17th Ave Greeley, CO 80631 cgathman@co.weld.co.us PHONE: (970) 353-6100, Ext. 3540 FAX: (970) 304-6498 August 4, 2011 Suncor Energy, Inc. 7800 E. Orchard Road Suite 300 Greenwood Village, CO 80218 Blaine Ayers Suncor Energy, Inc. P.O. Box 369 Guernsey, WY 82214 James B. Borgel, Esq. Partner Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Re: Conditions of Approval; Use by Special Review USR-1709 Dear Applicant: On December 16, 2009, your application for an Use by Special Review was approved by the Weld County Board of County Commissioners with specific Conditions of Approval. At this time the conditions of approval have not been satisfied and a Mylar Plat has not been recorded with Weld County Clerk and Recording. One of the required Conditions of Approval in the resolution grants the applicants One -Hundred Eighty (180) days to submit a Mylar Plat, and provide written evidence that all conditions outlined in the resolution have been completed. Should you choose not to complete the Use by Special Review process and provide the required Mylar Plat, the Department of Planning Services requests written notification of your decision to withdraw the application and that the use is not active on the property. Planning Services Staff is aware of the difficulty and associated delays in meeting the Conditions of Approval normally associated with land use cases, and is willing to work with you in completing your request. Please notify the Department of Planning Services, in writing, within 10 working days of your decision to complete the Use by Special Review within the next 60 days or withdraw the application. If you chose to withdraw the application please sign and date the enclosed form and return to the Weld County Department of Planning Services, Attn: Chris Gathman, 1555 N 17'" Ave., Greeley, CO 80631. If you have further questions, please contact me at the above address or call (970) 353-6100 x 3540. Sincerely, Nlnb Chris Gathman Planner Ill pc: case file August 4, 2011 Department of Planning Services Attn: Chris Gathman 1555 N. 17th Ave Greeley, CO 80631 RE: Use by Special Review Application (USR-1709) Dear Mr. Gathman, We wish to withdraw our Use by Special Review Application, Thanks. Please attach documentation that the use is no longer active on the property in question. Name date Name date • Complete items 1, 2, and 3. Also complete item 4 If Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. . Article Addressed to: Son Cos" Er�, ZfC. w 13ox 3( / Querns, WY c322-14 2. Article Number (Transfer from service label) COMP( F 1E THIS SECTION ON DELIVERY A. Sign O Agent ❑ Addressee _ m Iteml? • Yes ell • • • - - below: O No AUa 1 a 2011 Ii County Planning Department C 3. Service Type Certified Mall O. Express Mail Registered O Return Receipt for Merchandise O Insured Mall ❑ C.O.D. 7010 1670 0000 20145 4377 102595-02-M-1540 PS Form 3811, February 2004 Domestic Return Receipt U.S. Postal Service CERTIFIED MAIL, RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Codified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage 8 Fees Sent To , Z,^ BIa1•44 JSe S 5V,1Cer c ,1 Postmark Here Street, L No.; O • oi( 3 i _ fi or PO BoxAPNo. ¶ D .�O , uiv ay,State, zIP.4 �vzcnsa-.JBZZ I4 SENDER: COMPLETE THIS SECTION ■ Complete Items 1, 2, end 3. Also complete Item 4 If Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: -5O,,coy -"_y s .zvc 7 5oo E. Orel Ar-d Oct., -tea Y,Iky. Co Wzl$ COMP! ER THIS SECTION ON DELIVERY A. Sip X ere B. Received by (Printed Name) NLcf\\' lucQ'v D. Is delivery address different from item If YES, enter delivery addre below: RECEIVED r, 10 2011 El Agent Cl Addressee 4 Delivery J� O No 3. Service Type Department aide l p Mess Mall (�� [[jj Return Receipt for Merchandise O Insured Mail O C.O.D. 4. Restricted Delivery? (Extra Fee) O Yes 2. Article Number (Transfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 7010 1670 0000 20145 4360 U.S. Postal Service], CERTIFIED MAIL, RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) <n O Postage Certified Fee N O O O IM Restricted Delivery Fee (Endorsement Required) 7010 1670 Return Receipt Fee (Endorsement Required) Total Postage & Fees Sent To Postmark Here nco r v.a.r.3n -. =V Street, Apt No.; q P1 II (7 %l t O3 or PO6ox Na 7 0OO E VrtLrrl( 2A. s$lc 3 Rzev, & OOCK V. (a - 1(0 -302123 City, State, ZIP+4 PS Form 3800. August 2006 See Reverse for Instructions 102595O2 -M-1540 SENDER: COMPLETE THIS SECTION • Complete Items 1, 2, and 3. Also complete item 4 If Restricted Delivery Is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiersl, or on the front if space permits. COMPLETE THIS SECTION ON DELIVERY A. Sign re ❑ Agent O Addressee B. Received by ( Printed Name) C. Date of Delivery 1. Article Addressed to: was Bogie,\ H0I(4.1 Nku--t- LC? 5SS 32Ucek > Nyas) Co '$OZOZ fECs l different from item l? ❑ Yes below: ❑ No AUG 0 9 7011 r.; 3.''Service Type ., '$,CeMfied Mail ❑ Registered ❑ Insured Mall gI ❑ Express Mail O Return Receipt for Merchandise ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) O Yes 2. Article Number (Transfer from service label) PS Form 3811, February 2004 7010 1670 0000 2045 4384 AO AO m 7 Domestic Return Receipt 102595-02-M-1540 U.S. Postal Service,,, CERTIFIED MAIL,,., RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Sent To Postmark Here (Al `y2-)1O11c“,rkq Hcot IL? t P, APT. or 5SS 17II SPO No. I1V1� City, State, ZIP+4 l/(a"I ,5O;4c 32.00 t-5iLr CO 7OZO2_ PS Form 3800. August 2006 See Reverse for Instructions Identify Results • • Page 1 of 1 Parcel Summary Parcel#: 130920200058 Owner: SUNCOR ENERGY INC Address: 7800 E ORCHARD RD STE 300 City: GREENWOOD VILLAGE State: CO Zip Code: 80218 Account#;R4956508 Detail Information: LAND PROPERTY PROFILE BUILDING BUIEERPARCEL http://maps2.merrick.com/website/weld/setSQL.asp?cmd=search&LUI=PIN&par 1=130920... 8/4/2011 N E R SUGNYCOR RECE'VED E AUG 0? rt Weld County invent GREELEY OFFICE July 29, 2011 VIA E -Mail Chris Gathman Planner Ill Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 Re: Work at Fort Lupton Station Dear Chris: Blaine Ayers Project Specialist Suncor Energy (U.S.A.) Pipeline Company 1715 Fleischli Parkway Cheyenne, WY 82001 I am writing in response to our recent discussions and correspondence regarding the construction activity at Suncor's Fort Lupton Station adjacent to WCR 20 and east of Highway 85. The work that Suncor is undertaking at this site is the installation of a replacement pump station control facility for Suncor's existing 10" interstate pipeline that extends from Suncor's Cheyenne, Wyoming facilities to its Commerce City refinery. It is our understanding that this work is not subject to the County's zoning regulations. This control station is an appurtenance to Suncor's existing 10" pipeline and is regulated under standards established by the United States Department of Transportation ("DOT") for the transportation of hazardous liquids by pipeline. See 49 C.F.R. Part 195. Section 195.2 of 49 C.F.R. defines a "pipeline" subject to DOT regulation to include pumping stations, together with any equipment, facility, or building used in the transportation of hazardous liquids. The new control facility falls within this definition and is subject to DOT regulations and standards. Prior exchanges with the County have confirmed that work of this nature is exempt from regulation under the County's zoning regulations. In 2008, following several meetings with the County Attorney and the County Planning staff, Suncor received written assurances that construction of its planned 16" pipeline from Cheyenne to Commerce City was not subject to regulation by the County under Chapter 23 of the County Code. We believe that the same analysis applies to Suncor's current activities at its Fort Lupton facility. With regard to the other issues raised in your letter, the area disturbed by grading at this site is approximately 36,000 square feet, so the County's grading permit requirements are not applicable. Access to this site is via an existing access point on WCR 20, so we don't believe that an additional access permit is permit, a pre -application meeting will Please don't hesitate to contact me if Enclosure cc: Randy Lowry Jacy Rock, Esq. James Borgel, Esq. required. Since this activity does not require a land use not be necessary. I can address any additional questions or concerns. Regards, aine Ayers Project Specialist Suncor Energy (U.S.A.) Pipeline Company HOLLAND&HART, June 14, 2011 VIA E-MAIL AND USPS David Bauer, P.F,., CFM County Engineer - Development Weld County Public Works Department 1111 H Street, P.O. Box 758 Greeley, CO 80632 Re: Suncor USR -1709 Improvements Agreement (the "Agreement") Dear Mr. Bauer: Thank you for your recent correspondence commenting on our proposed revisions to the Agreement. As we have been exchanging drafts and comments on this proposed Agreement with very little compromise, I think it may be most productive for us to address several fundamental issues which appear to be sticking points in our discussions. If we are able to get past these issues in a mutually agreeable fashion, we should have a basis for completing the Agreement. The fundamental issues, from our perspective, are as follows: 1. Suncor and the County both need a clear and mutually acceptable methodology for when the road improvements to WCR 20 will be required, and how the "proportionate share" of those improvements will be allocated to Suncor and the County. Suncor's draft of the Agreement attempted to create a methodology for determining when traffic counts on WCR 20 would trigger paving on WCR 20 between the project entrance and Highway 85. Consistent with the Board of County Commissioners' direction, we also attempted to provide a methodology for calculating Suncor's proportionate share of those improvements and a process by which the parties could agree on these very important terms. The County, in its response, insists on making these decisions unilaterally, and without input from the Applicant. This puts Suncor at significant financial risk and is not acceptable. 2. Suncor needs an assurance that the County will pay its "proportionate share" of the costs to pave WCR 20 before Suncor is required to commence design and construction of that improvement. County staff has insisted on deleting Suncor's proposed language requiring the County to appropriate and set aside funds sufficient to pay the County's proportionate share before Suncor is obligated to commence design and construction of the WCR 20 improvements. Staff has instead insisted on reverting to their proposed language which provides no procedures whatsoever for payment of the County's share of the project costs and provides absolutely no Holland & Hart up Phone 13031295-8000 Fax 13031295-8261 www.hollandhartcom 555 I7th Street Suite 3200 Denver, CO 80202 Mailing Address P.O, Box 8749 Denver, CO 80201 .8/49 Aspen Billings Boise Boulder Cheyenne Colorado Springs Denver Denver tech Center Jackson Hole Salt Lake City Santa Fe Washington, D.C. 3 H Q L LAND & HART. c)u t .vE David Bauer, P.E., CFM June 14, 2011 Page 2 assurances that the County will live up to its obligations to pay its proportionate share. We believe that this language is directly contrary to the direction provided by the Board of County Commissioners. 3. Suncor cannot agree to maintain nearby roads in perpetuity and to post a perpetual bond to secure that obligation. Suncor has acknowledged its obligation to repair damage to adjacent County roads caused by Suncor's operations, other than normal wear and tear, for a reasonable time after its project commences operations. However, staff's insistence that this obligation be perpetual and be secured by a perpetual bond or letter of credit is unreasonable and unacceptable. Once the improvements to WCR 20 are complete, or once the project is operational and is generating increased property tax revenues for the County based on Suncor's commercial use of this site, maintenance of County roads is no longer Suncor's obligation and properly belongs to the County. County staff's attempt to impose this perpetual obligation on Suncor is inappropriate. At our hearing on this permit before the Board of County Commissioners, we discussed the possibility of a work session with the Board if Suncor and staff were not able to come to terms on an Improvements Agreement. We would like to pursue that course, and ask that a work session be set with the Board to discuss and hopefully resolve these issues. Sincerely, 77 c James B. Borgel of Holland & Hart LLP cc: Board of County Commissioners (via USPS) Bruce Barker, Weld County Attorney (via e-mail and USPS) 510(1868_2 DOCX PUBLIC WORKS DEPARTMENT 1111 H STREET, P.O. BOX 758 GREELEY, COLORADO 80632 WEBSITE: www.co.weld.co.us PHONE (970) 356-4000, EXT. 3750 FAX: (970) 304-6497 April 7, 2011 Mr. James Borgel Holland and Hart 4302 West 9th Street Road Greeley, CO 80634 RE: Suncor USR-1709 Improvements Agreement Dear Mr. Borgel: Weld County has received and reviewed your 3/14/11 proposed changes to the Improvements and road Maintenance Agreement for Suncor's USR-1709. We respond to each proposed change as indicated below: Page 1 — Fourth Whereas — the deleted language that operation of the Use By Special Review (USR) is conditioned on the completion of the On -site and Off -site improvements is standard in all Weld County Improvements Agreements and must be re-inserted. Page 2 — Part A 3.0 Construction of Offsite Improvements: The clause "subject to the obligation of County to fund its Proportionate Share as hereinafter defined" must be removed. The County will not require the work without having the ability to provide its portion of the construction expense. Page 3 — Part A 4.0 Construction Trigger: All of the section starting with "Applicant shall have 30 days after receipt of written notice" must be removed. Parts a, b, and c must also be removed. The original language regarding Construction Trigger must be restored to this agreement. The County has established its criteria for the trigger for improvements for this project. The County does not negotiate with the holders of USR permits as to when improvements are needed; the process and delays in construction of needed improvements could extend over years as proposed by you. Road construction and maintenance are a public safety and health matter; the County cannot put the travelling public at risk while negotiating traffic counts and construction costs. Page 4 — Part A 5.0 Applicant's Proportional Share: The proposed changes to this section are not acceptable to the County. The County's standard language and process for determination of proportional share apply to this agreement as it does for all USR agreements. Page 4 and 5 — Part A 8.0 Offsite Dust Control/Abatement: The proposed changes to this section are not acceptable to the County. The intent of the Improvements Agreement is to provide for mitigation of the impacts caused by the activities of the USR holder. As a public health issue, County Code requires dust control on unpaved roads when traffic counts exceed 200 VPD. Weld County Road (WCR) 20 currently does not require dust control. As presented at the Board of County Commissioner's hearing and stated in the USR-1709 Resolution and conditions of approval, the Applicant will pay a proportional share of the costs of dust control on the haul route(s) used by its traffic; the approved haul route is WCR 20 west to U.S. Highway 85. The proposed last sentence (first paragraph Page 5) must also be removed. The County's traffic count process is established. Page 6 — Part B 5.0 Extraordinary Maintenance: This proposed addition is not acceptable to Weld County. The County does not have "extraordinary maintenance" provisions; the Applicant's obligation is for all maintenance and repairs resulting from damages caused by or resulting from the USR activities. Page 6 — Part C 1.0 change description to "Screening Requirements" instead of "Landscape and Fencing Requirements". So the paragraph would read "Applicant shall comply with the teens of the approved Screening Plan for the property,..." Page 6 — Part C 3.0 Timing of Onsite Improvements: Please remove the word "reasonably" from the third sentence; it has no definition or meaning. The County routinely considers alternative design options, these can be presented on the Construction Plans. Page 6 — Part C 4.0 Acceptance of Onsite Improvements: Remove the word "promptly" from the third sentence; it has no definition or meaning in the context of inspection of improvements. Page 8 — Part D 4.0 Release of Liability: The original language must be restored and the proposed language stricken. The original language is that used in all County agreements. Page 8 — Part D 7.0 General Requirements for Collateral: Part 7.1 These proposed changes are not acceptable to Weld County, please remove the proposed language and restore the original language that used in all County agreements. Page 10 — Part D 7.2 The Board of County Commissioners has recently directed staff that collateral shall be posted prior to recording the plat or issuance of grading and/or Right -Of -Way permits, whichever occurs first. Therefore, submittal of all collateral shall be at the time of application for a grading permit or right of way permit. Page 10 — Part D 7.4 Extraordinary Maintenance Collateral: As stated above, Weld County does not have "extraordinary maintenance" provisions. This proposed addition is not acceptable to Weld County; section D 7.4 Extraordinary Maintenance Collateral must be deleted. Page 10 — Part D 7.5 Extraordinary Maintenance Collateral: As stated above, this proposed addition is not acceptable to Weld County; section D 7.5 Extraordinary Maintenance Collateral must be deleted. Page 10 — Part D 7.6 Acceptable Project Collateral: The Board of County Commissioners has recently directed staff that collateral shall be posted prior to recording the plat or issuance of grading and/or Right - Of -Way permits, whichever occurs first. Please revise the first sentence of D 7.6 to so state. The road improvement collateral amount shall be equal to the amount of the estimated Applicant's proportional share of total construction costs assuming the Property Owner/Applicant's truck traffic is the 200 truck trips per day identified in the Applicant's 2008 Traffic Impact Study presented to the Board of County Commissioners at hearing during the USR approval process. a • Page 12 — Part D 8.0 Successors and Assigns: The proposed changes are not acceptable to Weld County; please remove the proposed language and restore the original language that used in all County agreements. Page 12 —Part D 10.0 Violation of Terms of Agreement: The proposed changes are not acceptable to Weld County; please remove the proposed language and restore the original language that used in all County agreements. The document could stand some clarification of what Exhibits A, B, and C include. If you have any questions, please feel free to contact me at (970)304-6496, extension 3739. Thank you, David Bauer, P.E., CFM County Engineer— Development M'\PLANNING —DEVELOPMENT REVIEW\USR-Usc by Special Review\USR-1709 Suncor\Improvements Agreement\Response to Borgel IA changes 4-7-I I.doc Chris Gathman From: Sent: To: Subject: Vicky Sprague Tuesday, January 04, 2011 11:05 AM Chris Gathman Suncor Check -Off Good morning, Chris. Board ok'd your proposal. Will send copy for your file. Vicky Sprague, Office Manager Board of Weld County Commissioners 915 10th Street, 3rd Floor P. 0. Box 758 Greeley CO 80632 Telephone: 970-336-7204 Fax: 970-352-0242 vsprague0co.weld.co.us iier; WRDc COLORADO MF M O RA N D U A Meld Cou ELEYnig FDIeepartment TO: Board of County Commissioners DATE: December 27, 2010 FROM: Chris Gathman — Planner III ;AN nf..?fltt RECEIVED SUBJECT: Proposed Extension request to finalize conditions of approval and record the plat for USR-1709 (Site Specific Development Plan and Special Review Permit for an Oil and Gas Support and Service Facility (Crude Oil Truck Unloading Facility) in the A (Agricultural) Zone District) for Suncor Energy (U.S.A.) Pipeline Company PURPOSE OF MEMO: To determine whether or not to grant an extension request (or hold a work session) to allow additional time for Suncor Energy (U.S.A.) Pipeline Company to finalize conditions of approval and record the plat. EXECUTIVE SUMMARY OF REQUEST: Suncor is requesting an extension until June 30, 2011 to finalize conditions and submit the plat for recording for USR-1709. This proposed facility will be located south of and adjacent to County Road 20 and approximately'/ mile east of Highway 85. USR-1709 was approved by the Board of County Commissioners on December 16, 2010. The approved resolution stipulated a 180 day time frame to finalize conditions of approval and submit the plat for recording. A previous extension was granted in July 2010 until December 31, 2010. The applicant has submitted evidence indicating that all conditions of approval have been addressed with the exception of finalizing the improvements agreement for onsite and offsite improvements for this facility (conditions 1.E and 1.F). David Bauer and Jim Borgel have been working diligently on finalizing the improvements agreement but there are still a number of issues that need to be discussed and agreed upon. STAFF RECOMMENDATION: Staff recommends that the extension request be granted. This proposed USR is for a new facility that has not been built, this property is not in zoning violation and granting this extension will not have any adverse impacts on the surrounding area. BOARD OF COUNTY COMMISSIONERS COMMENTS: BOARD OF COUNTY COMMISSIONERS RECOMMENDATION: Sean Conway Dave Long Barbara Kirkmeyer Doug Rademacher Bill Garcia O NOT OK WORK SESSION K HOLLAND&HART THE LAW OUT WEST.; December 20, 2010 VIA E-MAIL AND USPS Mr. Chris Gathman, Planner III Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, Colorado 80631 James B. Borgel Phone 303-295-8245 Fax 303-295-8261 Jbborgel@hollandhart.com Re: Use by Special Review - 1709 / Suncor Energy Truck Unloading Facility Dear Chris: This is a formal request for an extension of time to record the mylar plat for USK-1709. The Board of County Commissioners originally approved the project on December 16, 2009, and in the interim we have been diligently working to satisfy virtually all conditions of approval. At this point, the only remaining conditions to be satisfied are conditions of approval I.E and 1.F, which relate to finalization of the improvements agreement. As you know, this will be the second extension for this project. The issues associated with the improvements agreement have been unusually complicated, as we have worked with County staff to resolve issues related to Suncor's "proportionate share" of the costs to improve and maintain roads adjacent to the project. While we have had productive meetings with County staff and a draft improvements agreement has been provided for County staff to review, we will not have a final agreement by the current deadline of December 31, 2010. To ensure that we have sufficient time to complete and obtain Board approval of the Improvements Agreement, we are requesting an extension to June 30, 2011. Please let me know if you have any questions or need any additional information. Sincerely, James B. Borgel Of Counsel JBB/kk cc: David Bauer, Weld County Public Works 4982421 I-DOCX Holland & Hart LLP Phone [303] 295-8000 Fax [303) 295-8261 www.hollandhart.com 555 17th Street Suite 3200 Denver. CO 80202 Mailing Address PO. Box 8749 Denver, CO 80201-8749 Aspen Boulder Carson City Colorado Springs Denver Denver Tech Center Billings Boise Coeyenne Jackson Hole Las Vegas Reno Salt Lake City Santa Se Wasninaton. RCn Chris Gathman From: Sent: To: Cc: Subject: Jim, David Bauer Thursday, September 23, 2010 12:35 PM James Borgel Janet Carter; Donald Carroll; Chris Gathman; Bruce Barker; Pat Persichino Suncor USR-1709 Improvements Agreement Yes, it is time to start on this. We have some research to do regarding the latest from CDOT in regards the US 85 issues, also we need to look into paving costs (WCR 20), and on mechanisms and language for proportional share and developer repay, so I request a recess of a few days to a week so we can assemble that information that will be needed for this agreement negotiation. Then set a date. Has Suncor finished preparing the plat itself? What is the possible timing of their construction? Thanks, David Bauer Weld County Public Works Original Message From: James Borgel[mailto:JBBorgel@hollandhart.com] Sent: Tuesday, September 21, 2010 2:14 PM To: David Bauer Subject: FW: Suncor Spindle C Dave: As I mention in my e-mail to Chris (below), I'd like to find some time where we can sit down with you and other folks from public works to get the discussion re -started on the public improvements agreement for Suncor's Spindle C project. Could you please provide some potential times in the next week or so that you and others from your staff would be available? Thanks, Jim James B. Borgel, Esq. Of Counsel Holland & Hart LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone (303) 295-8245 Cell: (720) 939-1454 Fax (303) 713-6314 E-mail: ibborgelahollandhart.com Chris Gathman From: Sent: To: Cc: Subject: Donald Carroll Tuesday, July 13, 2010 9:02 AM Chris Gathman Tom Parko; Clayton D. Kimmi; Janet Carter USR-1709 Suncor-Plat PW needs a Improvement Agreement (1-F) and Clay needs Drainage. Do not record the PLAT. 1 MEMORANDUM TO: Donald Carroll COLORADO DATE: July 8, 2010 FROM: Chris Gathman — Planner III C,7• Weld County Planning Department GREELEY OFFICE SUBJECT: USR-1709 (Suncore) Plat JUI_ 2 i )!111' ^ Here is a draft plat for the Suncore facility. Let me know if you have anpp t E C E I N E D changes/additions/deletions... nFPT \ &-1y (12 9 ', f _ ceyo) r.ec) (iz0 ` jZ.c_a/r � ;`r -A-3. prIt a r1 + p q 1- '1 (m) TETRA TECH June 1, 2010 Mr. Chris Gathman, Planner 111 Weld County Department of Planning Services 1555 N. 17`h Avenue Greeley, CO 80631 RE: Plat for the Suncor Energy, Truck Unloading Facility, Use by Special Review -1709 Dear Chris: This is a formal request to extend the date for recording of the mylar plat for USR-1709 for the Suncor Energy Truck Unloading Facility project. As you know, the project was originally approved by the Weld County Board of Commissioners on December 16, 2009 and since that time we have been diligently working on the numerous conditions of approval, many of which have been completed and forwarded to the Planning Department. In order to ensure that there is an adequate amount of time to complete the final conditions of approval, we are requesting the extension to December 31, 2010. A final letter will be sent to you prior to that date, with all of the documentation and correspondence outlining how all of the conditions have been met and will include two paper copies of the final USR plat, with a final mylar to follow. Please contact me to let me know the status of our request and if you have any questions. Thank you for your consideration of this matter. Sincerely, TETRA TECH Cel 4 (1 Julie A Cozad Land Planning Manager cc: '1'revorJiricek, Weld County Planning Director Torn Parko, Planning Manager MEMORANDUM TO: Weld County Commissioners DATE: October 15, 2012 FROM: Chris Gathman SUBJECT: USR-1709 Status Timeline: • Approved by the Board of County Commissioners 12/16/2009. • 7/2010 - Extension to record the plat granted by the Board of County Commissioners until 12/31/2010. • 12/17/2010 - Extension to record the plat granted by the Board of County Commissioners until 6/30/2011. • Late plat notification letter sent via certified mail 8/4/2011. • Certified mail receipts received 8/9/2011, 8/10/2011, 8/16/2011. • Letter to Board of County Commissioners from Jim Borgel — Holland & Hart requesting a worksession to address outstanding issues on the improvements agreement. • 2nd Late plat notification letter sent via certified mail 9/26/2011. • Certified mail receipts received 10/3/2011, 10/4/2011 & 10/6/2011. • 3rd late plat notification letter sent via certified mail 12/22/2011. • Certified mail receipts received 12/28/2011 & 12/30/2011. • E-mail sent to J. Borgel 3/2/2012 requesting status of USR-1709. • E-mail response from J. Borgel received 3/5/2012. • E-mail response from J. Borgel received 3/12/2012 indicating that a response from the manager of the project is still pending. • Proposed amendments to Improvements Agreement submitted by J. Borgel on behalf of Suncor 4/2/2012. • Letter response to J. Borgel from Stephanie Arries dated 4/23/2012. • C. Gathman sent e-mail 5/4/2012 to J. Borgel & Blaine Ayers requesting additional information re: pumphouse/office proposed on the west side of the parcel that the Suncor facility is proposed (USR-1709). • E-mail response from Blaine Ayers to C. Gathman re: pumphouse/office received 5/4/2012. • Board of County Commissioners Worksession with Suncor representatives re: improvements agreement 6/20/2012. • E-mail from J. Borgel — Holland & Hart indicating Suncor intends to proceed with an exemption to separate the USR-1709 operation from the remainder of Lot A of AMRE-2918. • R. Hastings & C. Gathman met with Kelly Rowland Suncor at County Road 20 site re: potential future plans for the parcel on 8/6/2012 • Improvements agreement with proposed revisions submitted by J. Borgel on behalf of Suncor on 10/2/2012. • Response from Stephanie Arries back to J. Borgel 10/10/2012. • Tetra Tech (on behalf of Suncor) submitted a recorded exemption application to divide USR-1709 from the remainder of Lot A of AMRE-2918 on 10/11/2012. Remaining Outstanding Conditions of Approval: All conditions of approval have been addressed with the exception that 1) the improvements agreement needs to be finalized, submitted and accepted by the Board of County Commissioners and 2) Finalize the exemption to separate the proposed USR-1709 improvements from the remainder of Lot A of AMRE-2918 3) the final USR plat needs to be finalized and submitted for recording. Original discussions re: submitting an exemption to separate the USR-1709 improvements from the remainder of the property focused on submitted a subdivision exemption for an oil and gas support facility. The applicant submitted a recorded exemption application (rather than a subdivision exemption application) to divide off the improvements. A review of the recorded exemption plat indicates that Lot A of AMRE-2918 was created as a separate lot and is not eligible for another recorded exemption. The applicant would need to apply for a subdivision exemption for an oil and gas support facility. The exemption process typically takes approximately 90 -days from application submittal to submittal of the plat for recording. Staff Recommendation: Given the outstanding issues outlined above, staff requests a 90 -day continuance to allow the applicants and the county to finalize the Road Improvements and Maintenance Agreement, address any future onsite improvements and submit and finalize the subdivision exemption. 1 . a i!1 Wit: .I; TRIGON , [PC L s it R 4 $< o a p AMENDED RECORDED EXEMPTION NO. e§ S 6 9 ON AVMHOIH 31V1S «< < < «< �� CY0H1IVN )H3Ud NOINO \I ROAD NO. 18 1/2 (60 Debbie Heffel From: Sent: To: Subject: Chris Gathman Sunday, October 14, 2012 12:07 PM Esther Gesick; Karla Ford; Debbie Heffel; William Garcia; Douglas Rademacher; Barbara Kirkmeyer; Dave Long; Sean Conway FW: Suncor concrete road questions More correspondence for Monday's USR-1709 hearing. Chris Gathman Planner III Weld County Department of Planning Services 1555 N. 17th Avenue, Greeley CO. 80631 Ph: (970)353-6100 ext. 3537 Fax: (970)304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: David Bauer Sent: Friday, October 12, 2012 4:15 PM To: Stephanie Arries; Richard Hastings; Chris Gathman Subject: RE: Suncor concrete road questions Stephanie, Yes ma'am. The Agreement would be essentially the same —the triggers the same, the need to submit design plans the same, need to provide construction period traffic control, and they'd need to post construction related collateral. The warranty on the concrete work would be substituted for the acceptance and warranty of the prior asphalt paving. The only difference would be that we'd delete the long term road maintenance section. The short term dust control would stay in the agreement. David Bauer, P.E., CFM Director - Weld County Public Works Department P.O. Box 758 Greeley, Colorado 80632 (970) 304-6496 1 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Stephanie Arries Sent: Friday, October 12, 2012 3:12 PM To: David Bauer Subject: Suncor Dave Jim B called me and we discussed the comments I had on the Agreement. There were a few additional questions he had, but I had to leave for a Dr appt and he had another obligation, as well, so we did not get everything covered. In any case, he had questions about why we wanted language in the agreement about the cement road. I told him the obvious — that there would be no maintenance obligation and that there may be other requirements that PWorks would add. Could you outline for me what you would expect to see in the agreement as far as the cement road goes? Would the trigger for the road be the same as the current agreement? Would they keep the same requirement for collateral? - Warranty Collateral? What else?? Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries(cDco.weld.co.us STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. 2 Hello