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Home My WebLink About20133068.tiffRESOLUTION RE: APPROVE PARTIAL CANCELLATION AND RELEASE OF COLLATERAL AND NEW OWNERSHIP NAME FOR USE BY SPECIAL REVIEW PERMIT #1769 - HIGH SIERRA WATER SERVICES, LLC 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, by Resolution dated March 2, 2011, the Board approved the application of Marcum Midstream 1995-2 Business Trust, dba Conquest Water Services, 8207 West 20th Street, Suite B, Greeley, Colorado 80634, for an Oil and Gas Support Facility (Class II Oilfield Waste Disposal Facility — saltwater injection facility and a water recycling facility) in the A (Agricultural) Zone District on the following described real estate, to wit: Lots A and B of Recorded Exemption #4538, being part of the S1/2 NE1/4 and the N1/2 SE1/4 of Section 29, Township 11 North, Range 62 West of 6th P.M., Weld County, Colorado WHEREAS, on May 9, 2011, the Board of County Commissioners of Weld County, Colorado, approved an Improvements Agreement According to Policy Regarding Collateral for Improvements, between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and, Marcum Midstream 1995-2 Business Trust, dba Conquest Oil (C-8), with terms and conditions being as stated in said agreement, and accepted Performance Bond #LPM9032150 from Fidelity and Deposit Company of Maryland, 1400 American Lane, Schaumburg, Illinois 60196, in the amount of $300,000.00, and WHEREAS, the Department of Public Works received a request from the applicant, Rae Chrisman/High Sierra Water Services, LLC, to transfer the existing Improvements Agreement, Document #2011-1116, from the original ownership name of, Marcum Midstream 1995-2 Business Trust, dba Conquest Oil (C-8), to High Sierra Water Services, LLC, and WHEREAS, staff from the Weld County Departments of Public Works and Planning Services have conducted a visual inspection and recommend release of a portion of said collateral, in the amount of $255,000.00, and accepting Replacement Performance Bond #09065628, issued by Fidelity and Deposit Company of Maryland in the amount of $45,000.00, to serve as Warranty Collateral for a period of two years from the date of approval. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that a newly signed Improvements Agreement According to Policy Regarding Collateral for Improvements by High Sierra Water Services, LLC, be accepted and a release of said collateral, in the amount of $300,000.00, from Fidelity and Deposit Company of Maryland, be and hereby is, canceled and released, and Replacement Performance Bond #09065628, in the amount of $45,000.00, be accepted and retained as Warranty Collateral. 3978022 Pages: 1 of 21 11/14/2013 12:54 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■III!!Aral:1LLrM14411,41:4 Alfr ii!kil9IDiiiF+.HIii■IIII 'psi 2102:3 de: ft, An?) tf/` /i Sernv 2013-3068 PL2109 CANCEL COLLATERAL — HIGH SIERRA WATER SERVICES, LLC PAGE 2 BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby is, directed to return said collateral to the appropriate issuing party. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 30th day of October, A.D., 2013. BOARD QYC9UNTY COMMISSIONERS WELD C l Io Y COLORADO Weld County Clerk to the Board County Attorney Date of signature: 0245 3978022 Pages: 2 of 21 11/14/2013 12:54 Clerk PMe$0.00d County CO Steve Moreno and Recorder, UIiirri 'wli`IfiIMNt'af II III WTliamF. Garcia, Chair 47, Barbara Kirkmeyer 2013-3068 PL2109 MEMORANDUM TO: Clerk to the Board DATE: 10/17/2013 FROM: Richard Hastings, Public Works Department SUBJECT: BOCC Agenda Item: Partial Release of Collateral and Approval of New Ownership Name High Sierra Water Services, LLC — (USR-1769) Request for Partial Release of Collateral and Approval of New Ownership Name: The Department of Public Works received a request from the applicant, Rae Chrisman/High Sierra Water Services, LLC, requesting the partial release of collateral and to begin the two-year warranty period, for the improvements to the site, located at CR's 77 and 126. Weld County Public Works Department previously had performed a site inspection, at the above mentioned site, and observed the following: • All Public Works transportation related items on Exhibit A, of the Improvements Agreement, Document # 2011-1116, have been completed and are found to be acceptable. The Department of Public Works received a request from the applicant, Dale Butcher/High Sierra Water Services, LLC, to transfer the existing Improvements Agreement, Document # 2011-1116, from the original ownership name of; Marcum Midstream 1995-2 Business Trust dba Conquest Oil (C-8) to High Sierra Water Services, LLC. Weld County Collateral List: Marcum Midstream 1995-2 Business Trust, dba Conquest Oil (C-8) (PL2109) (#2011-1116) USR#1769 Improvements Agrmt Performance Bond #LPM9032150 from Fidelity and Deposit Company of Maryland Noncancellable — renews automatically until released $300,000.00 Recommendation: The Departments of Public Works and Planning Services are recommending approval of the above -mentioned new ownership name, and the partial release of collateral, as shown above from the Weld County Collateral List, in the amount of $255,000.00 Weld County will retain a balance of $45,000.00 to serve as Warranty Collateral for a period of two years from the date the Board of County Commissioners approves this request. High Sierra Water Services, LLC will submit replacement/warranty collateral in the form of a Performance Bond (#09065628) from Fidelity and Deposit Company of Maryland in the amount of $45,000.00 pc: Don Carroll, Weld County Public Works Kim Ogle, Weld County Planning Services M:\PLANNING — DEVELOPMENT REV IEW\--Pre-Accela Referrals (Old Numbering) \USR-Use by Special Review\USR-1769 Conquest C-8 Injection Well\Improvements Agreement\Partial Collateral Release & New Ownership Name (High Sierra USR-1769)- New MEMO.docx IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS HIGH SIERRA WATER SERVICES, LLC USR-1769 71. THIS AGREEMENT, made and entered into this J day of ®CA76er , 070/3, by and between the County of Weld, State of Colorado, acting through its Board of County Commissioners, hereinafter called "County," and High Sierra Water Services, hereinafter called "Property Owner." WITNESSETH: WHEREAS, Property Owner is the owner of, the following described property in the County of Weld, Colorado: Lots A and B of Recorded Exemption AmRE-4538; being part of the S1/2 NE1/4 and the N1/2 SE1/4 of Section 29, T1 IN, R62 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner has acquired land use permits from County for an Oil and Gas Support Facility (Class II - Oilfield Waste Disposal Facility- saltwater injection facility and a water recycling facility) on approximately 10 acres on the above described real property, and the County is currently in the process of considering a Use -by -Special Review for the Property (USR-1769), and "WHEREAS, the Property Owner acknowledges that the issuance of USR-1769 is conditional upon Property Owner's performance of the on -site and/or off -site improvements which are described in this Agreement and depicted in the Plat Map and the set of accepted Construction Plans provided electronically by Property Owner, copies of which shall be attached to this Agreement as they become available and made a part hereof, as Exhibits C and D, respectively, and WHEREAS, Property Owner acknowledges that it may not engage in any activity described in USR-1769 and/or any activity related to the businesses described above until said improvements have been completed, and WHEREAS, the parties agree that Property Owner shall complete the improvements within three (3) years of the County's approval of USR-1769, and WHEREAS, the parties agree that Property Owner shall provide collateral for all on -site and off - site improvements required by this Agreement When the Property Owner submits and receives approval of an application for a Grading Permit or for a Right -Of -Way Permit for construction of accesses and work within the County and/or State of Colorado Right -Of -Way. C:\ Users \rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Oudook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-I 3).docx Page 1 of 19 92Di3 -3U 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 Weld County Road 77: The Property Owner shall be responsible for the construction of certain on -site and off -site safety improvements which shall include: construction of adequate turning radii sixty (60) feet, drainage and signage installations at the main entrance and exit onto WCR 77, as indicated on the accepted Construction Plans. The applicant, or its successor, shall construct a right turn deceleration lane with tapers and a left turn deceleration lane with tapers on County Road 77, prior to commencement of operations at the site; both deceleration lanes are shown on the submitted plat. The applicant, or its successor, shall construct a right acceleration lane will be required when the trigger of 50 vehicles per the peak hour turn right out of the facility. Granting of any new point of access may generate additional obligations with County for Off -Site Improvements and the need to post additional "Road Maintenance Collateral". 2.0 Road Improvements Responsibilities: Property Owner is solely responsible for all designated improvements, as specified above in Section A.1.0, on WCR 77, and for any construction improvements mandated by the Colorado Department of Transportation (hereinafter "CDOT") and/or the County, and for all expenses associated therewith. These responsibilities include, but are not limited to the following: design, survey, utility locates, present and future right-of-way clearances and permits, coordination with oil and gas operators and facilities, affected railroad facilities and affected irrigation facilities, traffic control, and project safety during construction. Property Owner shall obey 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. 3.0 Engineering Design and Construction Plans: All engineering designs and Construction Plans provided by Property Owner shall include, at a minimum, ingress/egress entrance intersection layouts, existing and proposed grading, drainage designs, storm drainage pipe sizings and inverts, a cross section of the base/asphalt, approach roads, and 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 for WCR 77. These Plans, when reviewed and accepted by the Weld County Engineer, shall be a part of the Plans, which are a part of this Agreement. If applicable, 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 Public Works for review and acceptance. 4.0 Construction Standards: All construction and materials controls for a project and any designated improvements shall conform to the requirements in effect at the time of the completion of the improvements set forth in the "Standard Specifications for Road and Bridge Construction" provided by CDOT. C:\Users\rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Siena Water Services -Final (9-23-I3).docx Page 2 of 19 5.0 Traffic Control: Prior to construction in the County and/or State right-of-way and as a condition of issuance of any access permit or right-of-way permit, the applicant shall submit a traffic control plan for County review. During construction, signage shall be posted in accordance with the then current version of the "Manual of Uniform Traffic Control Devices". 6.0 Off -Site Dust Control/Abatement and/or Paving (If Applicable): County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner. The proportional share is based upon the ESAL calculation method to determine the impacts of traffic volumes created by the Property Owner (or their contractors, clients, tenants, or customers). The amount and extent of dust control and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. In order to accurately determine percentage of Property Owner haul truck traffic, the County reserves the right to install traffic counters on the driveway(s) of their facility. The percentage of haul truck traffic utilizing County roads in the vicinity of the site attributable to Property Owner (or their contractors, clients, tenants, or customers) activities will be determined by traffic counts conducted by the County on the primary and requested alternate or revised haul routes. The County will have sole responsibility for detctmination of the percentage of truck traffic on all affected roads. 7.0 Future Improvements: Future improvements to the haul route(s) may be required by County for reasons related to: changes in site activity or truck circulation patterns and numbers, roadway classification changes, and newly permitted facilities affecting the haul route traffic usage. Property Owner shall address all Colorado Department of Transportation (CDOT) access issues associated with afore -mentioned haul route. Future CDOT or County mandated measures may include improvements to the intersections of WCR 124 and WCR 77, WCR 126 and WCR 77, or any other intersections or roadways then utilized by Property Owner as a result of the establishment of a new haul route. Property Owner shall pay a proportionate cost share based on the ESAL calculation method using then current data on the haul route in the implementation of the above -mentioned improvements County personnel alone shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. 8.0 Timing of Improvements: Property Owner shall not be required to complete the aforementioned offsite improvements as described in Section A 1.0 until the occurrence of the triggering event for each improvement, namely the application for the grading permit or Right - Of -Way access permit resulting from the commencement of activities on the property(s). At that time, Property Owner agrees that the required collateral will be posted and all on -site and offsite improvements shall be completed within the parameters established in Section E.-7.2 and Exhibit B, herein. 9.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, High Sierra shall contact a representative of the Weld County Department of Public Works and request an inspection of the off -site improvements described in Paragraph A.1.0-2.0 above. The County's representatives may then initiate the acceptance process set forth in Paragraphs E.6.0, sections 6.1-6.3. 9.1 All references in this Agreement to "Acceptance of Improvements" shall refer to the County confirming completion of said improvement(s) Q\Users\mhdsman\AppData\Local \Microsoft\Windows\Temporary Internet Files\Content.Outlook\SBMMA7C6\USR- 1769 Improvements Agreement -High Sierra Water Services -Final (9-23-I 3).docx Page 3 of 19 according to the accepted Construction Plans. By accepting any improvement, the County does not thereby accept said improvement for purposes of future maintenance, nor does the County accept any present or future responsibilities or obligations relative to these improvements. B. Haul Routes: 1.0 Established Haul Routes: 1.1 Exiting or entering the site: Haul trucks shall enter or exit the site at the approved access onto WCR 77. 1.2 No haul truck may exceed CDOT required specifications for pounds per axel. 1.3 In unusual or rare occasions, if particular projects mandate deviation from the above -mentioned haul route for a limited period of time (which is defined in the Agreement as a period of not more than thirty days), which shall be established by County at the time that the deviation is allowed. If County approves such deviation, trucks will utilize paved county roads whenever possible. A deviation from the established Haul route lasting more than thirty (30) days or requests for two or more deviations within a twelve month period shall be subject to the terms of Paragraph 4.0 of this Section B. In the event that haul truck traffic, in excess of 15% of the daily facility truck trips, utilizes alternate haul routes, the provisions of Paragraph 4.0 of this Section B shall be triggered. 2.0 Haul Route Signage: Property Owner 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 County approved haul routes. 3.0 No Deviation from Permitted Haul Routes: No deviation in the use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. O - U j C o U ;N- o 2 `X y 3 N �yLf - o w of LL r alaroor mvf a dNm-- �U NNm con. a, 4.0 Effect of Future Changes to Haul Routes: In the event that County is requested by Property Owner or site operator to approve the use of an additional access, new haul route, or an alternative haul route as a result of a change in Property Owner's site activities and/or truck circulation patterns, and if the alternative or additional access or haul route utilized any unpaved portion of County roads, and if County determines that dust control or paving is required on the unpaved portion of said haul route roads, Property Owner agrees that dust control or paving measures to protect the public health, safety, and welfare shall be instituted. County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner based upon then current truck trip counts that identify traffic loading due to Property Owner -sourced traffic. The amount and extent of dust control and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. C:\Users\rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 4 of 19 C. Road Maintenance Requirements: 1.0 Obligation to Maintain Current and Future Haul Routes: Property Owner agrees to excavate, repair, or patch any damage on current or future haul route roads, which in the sole opinion of County has been created by heavy truck hauling from the Property. Should Property Owner's site activities and/or should Property Owner's truck circulation patterns change in the future so that County approves an alternate haul route, and all or a significant portion of Property Owner's sourced traffic no longer utilizes the above -described haul route and instead utilizes other portions of County roads, Property Owner shall cooperate with County in maintenance of said roads. The type and method of repair will be determined by the County Engineer or his representative, and shall require a written amendment to this Agreement executed by County and Property Owner. All repairs shall commence within thirty (30) days of receipt of Weld County's written notice. 2.0 Annual Road Inspection: County will conduct a road inspection annually with the cooperation of Property Owner and all other Property Owners and/or Lessees who are required by County to participate in road improvement/maintenance agreements. As a result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall further determine what road improvement/maintenance work is to be performed during that construction season. 3.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road damage increases beyond the point that repair of damage cannot maintain the road in a safe and usable condition, Property Owner shall pay a proportionate cost of a complete restoration based on the number of then current truck trips entering or exiting Property Owner's site onto the haul route. 4.0 Sharing of Road Maintenance Responsibilities with Other Property Owners: It is anticipated that Property Owner and other Property Owners and/or Lessees subject to agreements similar to this Agreement will perform the required road maintenance work and will share in the equipment, labor, and materials required. Any such sharing arrangement between Property Owner and other Property Owners and/or Lessees shall be conducted pursuant to separate agreements between the Property Owner and other Property Owners and/or Lessees. County shall approve the Agreements only to determine whether the required improvements/maintenance projects have been adequately addressed. County alone shall determine the sufficiency of all road improvement/maintenance projects when completed. 5.0 Violation of Terms of Agreement: If Property Owner does not perform as outlined in this Agreement and Exhibits A and B, such non-performance will constitute a violation of Property Owner's land use permits granted by County, and County will take whatever remedial measures it deems necessary against Property Owner. In addition to any other remedy available to the County in law or equity, a failure to comply with this Agreement shall be considered grounds for setting a probable cause hearing according to the procedures described in Section 2-4-40 of Weld County Code. Revocation of USR-1769 as it now exists or may, from time to time, be amended is a remedy which County may impose. D. On -Site Improvements: C:\ Users \rchrisman\AppData\Local \ Microsoft \ Windows \Temporary Internet Files \Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-I3).docx Page 5 of 19 1.0 Landscaping Requirements: Property Owner shall landscape and/or maintain the landscaping and re -seeding of the property where applicable as shown on the accepted Construction Plans and USR-1769 plat map. Specifically, Property Owner shall at its own expense, plant, install and maintain all trees, grass and shrubs and other landscaping and reseeding where applicable as shown on the accepted Construction Plans and USR-1769 plat map. Additionally, the Property Owner shall install and maintain fencing to screen the property where applicable as indicated on the accepted Construction Plans and USR-1769 plat map. In the event any of these improvements may include work extending into the County Right -of -Way in which case a Right -Of -Way or access permit is required. 2.0 On -Site Grading, Drainage Facilities and Paving: Property Owner shall, at its sole expense, grade and/or pave, if applicable, specified roadway portions, accesses, easements and parking areas, and install accepted drainage and signage components, adjacent to or within the interior portion of the property in accordance with the directives of the Weld County Department of Public Works and Department of Planning Services, as further described in the accepted Construction Plans and USR-1769 plat map. The main entrance improvements will include; a paved vehicle tracking pad, extending from WCR 77 through the traffic flow lanes (entrance and exit) of the unloading area, or supply a tracking pad from the unloading area with two cattle guards placed back-to-back across the entire width on the exit lane, including the paved access entrance to ensure a complete revolution of the truck tires and to minimize the tracking of mud and debris onto WCR 77. No paving of the entrance lane will be required if the second option above is utilized. Any other on -site improvements shall be completed as indicated on the accepted Construction Plans for this facility. Property Owner shall be responsible for all maintenance of the onsite improvements. Refer to Section A., paragraph 1.0 of this agreement for specific paving requirements extending into the facility site from WCR 77. Additional infrastructure improvements will be addressed at the time of application for any future amended USR. Some of these improvements may include work extending into County Right -Of -Way in which case a Right -Of -Way or access permit is required. 3.0 Temporary Improvements: The following improvements are needed to mitigate temporary offloading activities (defined as acceptance of oil field waste water for storage and/or injection for a period of 6 months starting on the date of execution of this Agreement) as requested by the Property Owner: 3.1 Completion of construction of the onsite stormwater detention pond as shown on the approved construction plans and, r E-.- 3.2 Completion of the construction of the temporary spill containment berm o m={ around the temporary storage tanks with capacity for capture of 150 "-_, y '3percent (one hundred and fifty percent) of the volume of the largest tank � plus freeboard capacity to also capture a volume of stormwater equal to a °ttvA o'er 3 -inch rain storm over the bermed area. CO L a s ,4 3.3 The Applicant shall prevent the tracking of mud or other debris from their At -,!2 site onto the County roadways. In the event mud or other debris is tracked 13-19.11.):a No onto the roadway, the Applicant shall provide street sweeper or other M appropriate removal of the nuisance. Nm mi NNO -• f°,a,a� t` -'m= C:\ Users \rchrisman\AppData\Local \ Microsoft \ Windows \ Temporary Internet Files \Content.Outlook\SBMMA7C6\USR-1769 Improvements m t9.Agreement-High Sierra Water Services -Final (9-23-13).docx Page 6 of 19 4.0 Timing of Permanent Improvements: Property Owner shall not be required to initiate the landscaping requirements until the occurrence of the triggering event for all improvements, namely the approval of the grading permit by the County . No grading permit will be released until collateral is posted for all on -site and off -site improvements and the final?? Construction Plans have been submitted to and accepted by the Department of Public Works. Access and/or Right -Of -Way permits might also be required prior to approval of the grading permit. Grading shall not commence until Construction Plans are accepted. Any alterations to the accepted Construction Plans must be accepted in writing by the County Planning and Public Works Departments. At that time, and unless otherwise amended, Property Owner agrees that all landscaping and other on -site improvements, as indicated in Section D. 2.0 above shall be completed within the parameters established in Section E. 7.2 and Exhibit B. 4.1 Timing of Temporary Improvements: Property Owner shall complete construction of the on -site improvements described in Section D.3 of this Agreement prior to commencement of the temporary offloading activities 5.0 Acceptance of On -Site Improvements: Upon completion of the on -site improvements, Property Owner shall contact the County Department of Planning Services and the County Department of Public Works and request an inspection of the on -site improvements described in Paragraph D.1.0 and D.2.0 above. The County's representatives may then initiate the process for "Acceptance of Improvements" set forth in Paragraph E. 6.0, sections 6.1-6.3. E. General Requirements: 1.0 Engineering Services: Property Owner shall furnish, at its own expense, all engineering services in connection with the design and construction of the improvements identified on the accepted Construction Plans according to the construction schedule set forth in Exhibit "B," both of which are attached hereto and incorporated herein by reference 1.1 The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. IM Aii 1.2 The required engineering services shall consist of, but not be limited to, surveys, designs, plans and profiles, estimates, construction supervision, and the submission of necessary documents to the County. 1.3 Property Owner shall furnish construction drawings for the road m0'2 m _� improvements on public rights -of -way or easements and all improvements Na -= = interior on the Property for approval prior to the letting of any construction wi w v. T contract. ovL mLL°g ce cli 2.0 Rights -of -way and Easements: Before commencing the construction of any YlE-Es-- ma 4 improvements herein agreed upon for public rights -of -way or easements, Property Owner shall te t m acquire, at the sole expense of Property Owner, good and sufficient rights -of -way and easements N" on all lands and facilities traversed by the proposed improvements. All such rights -of -way and 0 N -¢v0.13 � v u C:\Users\rchrisman\AppData\LocaLMicrosoft\Windows\Temporary Internet Files \Content.Outlook\SBMMA7C6\USR-1769 Improvements I.- C > o Agreement -High Sierra Water Services -Final (9-23-I3).docx Page 7 of 19 m..v. easements used for the construction of roads to be accepted by the County shall be conveyed to the County and the documents of conveyance shall be furnished to the County for recording. 3.0 Construction: Property Owner shall furnish and install, at its own expense, the improvements identified on the accepted Construction Plans and USR-1769 Plat Map, be solely responsible for the costs listed on Exhibit "A", and described in parts A and D of this agreement, which are attached hereto and/or incorporated herein by reference, with the improvements interior to the Property being completed by the dates set forth on Exhibit "B" (On -Site), and improvements to public rights -of -way or easements being completed also in accordance with the schedule set forth in Exhibit "B" (Off -Site). The Board of County Commissioners, at its option, may grant an extension of the time of completion set forth in Exhibit B stated herein upon application by the Property Owner. 3.1 Said construction shall be in strict conformance to the plans and drawings accepted by the County and the specifications adopted by the County. 3.2 Property Owner shall employ, at its own expense, a qualified testing company previously approved by the County to perform all testing of materials or construction; and shall furnish copies of test results to the County. If County discovers inconsistencies in the testing results, RMCC shall employ at its expense a third party qualified testing company approved by County. Such third party shall furnish the certified results of all such testing to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect, or to require testing and inspection of material and work, at Property Owner's expense. Any material or work not conforming to the accepted plans and specifications, to include but not limited to damages to property adjacent to the construction plan area shall be repaired, removed or replaced to the satisfaction of the County at the expense of Property Owner. 0 UEt m13_ N •aS wa Y O w L u0 el 2s IX -EN a 0a i "JIM - (Op. NU Mono Nmv� NNo'1 iE ODzv r >- 4.0 Release of Liability: Property Owner shall indemnify and hold harmless the County from any and all liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and description caused by, arising from, or on account of said design and construction of all off -site improvements, and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. All contractors and other employees engaged in construction of the improvements shall maintain adequate worker's compensation insurance and public liability insurance coverage, and shall operate in strict accordance with the applicable laws and regulations of the State of Colorado governing occupational safety and health. 5.0 Warranty of On -Site and/or Off -Site Improvements: Property Owner shall warranty all improvements to public rights -of -way (if any), and all privately created and C:\ Users \rchrisman\AppData\Lo I\Microsoft\Windows\Temporary Internet Files\Content.Outlook\SBMMA7C \USR- 1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 8 of 19 maintained roads or rights -of -way, or easements, and all on -site improvements for a period of two (2) years. The warranty period shall begin only after the County's execution of a written acceptance of the improvement(s). 6.0 Acceptance of On -Site and/or Off -Site Improvements by the County: Upon compliance with the following procedures by the Property Owner, the improvements shall be deemed accepted by the County. 6.1 If requested by the Property Owner and approved by the County, portions of the improvements may be placed in service when completed according to the schedule shown on Exhibit "B," but such use and operation shall not, alone, constitute an acceptance of said portions of the improvements. 6.2 County may, at its option, issue building permits for construction for which the improvements detailed herein have been started but not completed according to the schedule shown on Exhibit "B," and may continue to issue building permits so long as the progress of work on the USR improvements in that phase of the USR is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Applicant. 6.3a Upon completion of the construction of the required off -site improvements, and the filing of a Statement of Substantial Compliance by Property Owner's engineer, Property Owner may, as set forth in Paragraph A.9.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted and further that the two-year warranty period begin. . Upon completion of the two-year warranty period, the County Engineer shall, upon request by the applicant, inspect the subject improvements, and notify Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. The County Engineer shall reinspect the improvements after notification from Property Owner that said deficiencies have been corrected. If the County Engineer finds that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. 6.3b Upon completion of the construction of the required on -site improvements, and the filing of a Statement of Substantial Compliance, when necessary, by Property Owner's engineer, Property Owner may, as set forth in Paragraph D.4.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer and/or the Weld County Department of Planning Services shall, upon request of Property Owner, inspect the subject improvements, and notify Property Owner of any deficiencies. If any CAUsersArchrismanAAppDataALocalAMicrosoft \ Windows ATemporary Internet Files VContent.Outlook\SBMMA7C6AUSR- 1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docx Page 9 of 19 deficiencies are discovered, Property Owner shall correct the deficiencies. The County Engineer and /or the Department of Planning Services shall reinspect the improvements after notification from Property Owner that said deficiencies have been corrected. If the County Engineer and/or Department of Planning Services find that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer and/or the Department of Planning Services for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. 7.0 General Requirements for Collateral: 7.1 County requires Property Owner to provide collateral to guaranty all of Property Owner's obligations under this Agreement: (1) Project Collateral for completion of all improvement described in this Agreement shall be provided separately for on -site improvements and off -site improvements; (2) Warranty Collateral required for all improvements during the warranty phase; and (3) Road Maintenance Collateral (If Applicable) to be kept in place for the life of the permit. o�V ii a O L a J N.,2 •"tea rc x LL to CL NU Nm u� NN oer co ,a, 03 r -.v= 7.2 Project Collateral submitted to Weld County to guarantee completion of the improvements identified on the accepted Construction Plans and USR-1769 Plat Map and further enumerated in the costs listed in Exhibit "A", must be equivalent to One -Hundred percent (100%) of the value of the improvements as shown in this Agreement. Collateral for Off -Site improvements that extend partially off -site as mentioned in Section A.1.0 (if any) or D.2.0 of this Agreement that include only improvements involving turning radii and approaches can be included as part of the On - Site collateral amount, if clearly delineated on accepted Construction Plans and differentiated as "Entrance Improvements" on Exhibit "A" On - Site Improvements of this Agreement. Such collateral shall be provided to the County on the dates set forth herein and shall be held in total by County as provided in Paragraph E. 7.3 below until all improvements have been completed. 7.3 Warranty Collateral for all on -site and off -site improvements shall be submitted to County and shall be held in total by the County for two (2) years following its written acceptance of the improvement(s). 7.4 In the event Property Owner fails to adequately complete and/or repair improvements associated with this Improvements Agreement, County will access, in its sole discretion, Project or Warranty Collateral to the extent necessary to complete said improvements or repairs in order to preserve public interest. 7.5 Road Maintenance Collateral shall be submitted to County upon the release of the warranty collateral by the Board of County Commissioners. C:\ Users \rchrisman\AppData\ocal\Microsoft \ Windows \Temporary Internet Files \Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-I 3).docxPage 10 of 19 Road Maintenance Collateral is held for use on roads associated with the designated haul route. The amount of the collateral required for road maintenance shall be established by the Weld County Department of Public Works based upon its determination of the anticipated expenses, and its determination of the amount shall be final. Road maintenance collateral shall be held by County as long as this Agreement is in effect and returned to the Property Owner upon vacation of associated land use agreement or permit. The Road Maintenance Collateral will only be accessed by the County, if upon notification to Property Owner of required roadway repairs; Property Owner fails to perform said repairs. If any of this collateral shall be collected by County, Property Owner shall replace the amount, plus interest, within six (6) months. 7.6 Road Maintenance Collateral shall be 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 based on the "Colorado Construction Cost Index Report" as published by the Colorado Department of Transportation. 7.7 Acceptable Project Collateral shall be submitted when the Property Owner submits an application for the Grading Permit or Right -of -Way Right -Of -Way Access Permit prior to commencement of Site Preparation, as herein defined a 8 Ur z o� UY OD IY m a, N s� trw ow1� MLLo re ar or art - a) r+ m maxim Y No o Nmj N t`ro i o -'s Nara=. 7.7.1 No grading or building permits shall be issued for any site related activities, on the property and no Site Preparation shall commence until cost estimates for all improvements are updated and collateral is provided in the amount of One -Hundred percent (100%) of the then current value of the improvements to be completed, and the development plans are revised to comply with all current County standards, policies and regulations. The improvements shall be completed within the time schedule set forth in Exhibit "B", which is attached hereto and made a part of this Agreement. "Site Preparation" shall mean earthwork grading or performance of work, or construction or installation of improvements related to Applicant's operations pursuant to USR-1769 that require a grading or building permit from the County pursuant to the Weld County Code. In the event that the Improvements outlined in this Agreement and Exhibit A are not completed within one year of the execution of this Agreement Weld County may require Property Owner to obtain current cost figures for one or more of the Improvements. 7.8 Collateral may be in the form of an irrevocable letter of credit (LOC) in an amount equivalent to one -hundred percent (100%) of the total value of the improvements set forth in the Improvements Agreement and the Plat; the C:\ Users \mhrisman\AppData\Local \ Microsoft \ Windows \Temporary Internet Files \ContentOutlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 11 of 19 LOC shall be subject to the requirements of Weld County Code Section 2- 3-30 B. The Property Owner shall utilize only a County approved form when obtaining a LOC: (IRREVOCABLE 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. 7.9 Collateral may be in the form of a surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to one hundred percent (100%) of the value of the improvements set forth in the Improvements Agreement and the Plat. The surety bond shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.2. The Property Owner shall utilize only a County approved form when obtaining a surety bond: (PERFORMANCE BOND FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said form shall be provided to Applicant upon request. 7.10 Collateral may be in the form of a cash deposit made with the Board in an amount equivalent to One -Hundred Percent (100%) of the value of the improvements set forth in the Improvements Agreement. In the event the applicant is required to warranty the improvements, the applicant shall replace the original deposit with a deposit in the amount of fifteen percent (15%) of the original amount and those funds shall remain available to the County until released by the County at the end of the warranty period. 7.11 The Board of County Commissioners reserves the right to reject collateral which is deemed inappropriate or insufficient, which may be either as collateral in the form of a letter of credit offered by a banking institution which does not have at least a "three star" rating given by Bauer Financial, or as collateral in the form of a performance bond offered by an insurance company which does not have at least a B+ rating given by A.M. Best. The Board further reserves the right to require Property Owner to obtain replacement collateral if the rating of the financial institution providing said collateral drops below the levels stated above. Replacement collateral shall be submitted by Property Owner within sixty (60) days of the Board's notice to Property Owner that the rating has fallen and that the collateral must be replaced. Property Owner may not terminate existing collateral until replacement of 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 Property Owner must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of Substantial Compliance shall state that the project or a portion of the project has been completed in substantial compliance with accepted plans and specifications documenting the following: C:\Users\mhrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 12 of 19 8.1 The Property Owner'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 (CDOT) Schedule for minimum materials sampling, testing and inspections found in CDOT Materials Manual. 8.3 "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted. The Property Owner's Engineer shall certify that the project "as -built" is in substantial compliance with the plans and specifications as accepted, or that any material deviations have received prior written acceptance from the County Engineer. 8.4 The Statements of Substantial Compliance must be accompanied, if applicable, by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. 8.5 A letter must be submitted from the appropriate Fire Authority, if applicable, indicating 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. oS J� 3 m'a ca 0 _ Nm __.y ft o o W-Oy vo vi 2 a cam toe Mina) No o� NS u j NNo i co :1; r m 8.7 Following the submittal of the Statement of Substantial Compliance and written recommendation of acceptance of the improvements by the Weld County Department of Planning Services and the Weld County Department of Public Works, the Property Owner (if Property Owner has supplied any or all of the collateral) may request release of the collateral for 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 written request for release of "Project Collateral" shall be accompanied by "Warranty Collateral" in the amount of fifteen percent (15%) of the value of the improvements as shown in this Agreement. However, collateral for improvements fully accepted for maintenance by a responsible governmental entity, special district or utility company will be fully refunded to Property Owner. 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 and/or off - site improvements. If the improvements need mitigation or further repairs are required, said work must be completed prior to the conclusion of the C:\Users\rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files \ContentOutlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 13 of 19 Warranty period. The "Warranty Collateral" shall be released to the Property Owner following the expiration of the warranty period upon final written acceptance by the Board of County Commissioners. 8.10 "Road Maintenance Collateral" (If Applicable) for roads associated with the designated haul route shall be maintained as long as the USR is active. It shall be 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 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. 9.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Property Owner without 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. In the event of sale of the Property, County may agree to release Property Owner in whole or in part from obligations under this Agreement. County's rights and obligations under this Agreement shall automatically be delegated, transferred or assigned to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance responsibility over the roads affected by this Agreement. All of the terms and conditions set forth in this Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of Property Owner, and 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 any individual or individuals appointed by the County Engineer to act on his/her behalf. 11.0 Violation of Terms of Agreement: If in County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify Property Owner of its belief that =_ the Agreement has been violated and shall state with specificity the facts and circumstances • which County believes constitute the violation. Property Owner shall have fifteen (15) days — within which to either cure the violation or demonstrate compliance. If, after fifteen (15) days r have elapsed, County believes in good faith that there has been a violation of the terms of this 8 Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of this Agreement. Violations of the terms of this Agreement include violations of the agreements gr gr 0 contemplated 1... D.....,..«....1... C.4.0 0 P. C.5.0 !1 of this Agreement .,...1 a f ilure to enter into s..c1, U m a Agreements in a timely manner. Nm o tta F. Termination of Agreement: a O Wa— i`o fewz 1.0 Termination Event: This Agreement shall terminate upon the earliest of the mf aP+ following events: a 01 � o_u)v 1.1 Cessation of all Permit Related Activities: Termination of this Agreement da shall occur upon Operator's complete cessation of all activities permitted under USR - N N o ti 1769 or any amendments thereto. A partial cessation of activities shall not constitute a oN£- Canva m C:\Users\rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.outlook\SBMMA7C6\USR- 1769 Improvements m.. — al.. m � Agreement -High Sierra Water Services -Final (9-23-13).docxPage 14 of 19 Termination of this Agreement, nor shall County's issuance of a partial release constitute a Termination. 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 shall not occur until County has determined that the Use by Special Review is inactive, which shall be three (3) years following County's observance of the cessation of activities, as provided in Sec. 23-2-200.E of the Weld County Code. 1.2 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1769 by New Property Owner: This Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1769 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-1769 by New Operator: This Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1769 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: Orn N0 Nm M t?' — o 43 v a 0 r. V! da�- ma s CL NO2 MOSS Nmm j NN U ccact 2.1 Termination Procedures Following Cessation of Permit Related Activities: Following the events outlined in paragraph 1.1 above, County shall conduct its annual road inspection. Said road inspection shall be conducted on or before May 31 following the announcement or determination of the cessation of permit related activities on the Property. The results of the inspection shall be delivered in writing to the Property Owner and Operator. If the County determines that pursuant to the terms of this Agreement, the Operator must complete any of the improvements and/or road maintenance obligations outlined herein, said obligations must be completed within a reasonable period of time thereafter, but in no event later than six (6) months following the determination that permit related activities have ceased. Collateral shall not be released by County until such time as county determines that all of the improvements have been completed. 2.2 Termination Procedures Pursuant to Transfer of Ownership of the Property or Transfer of Operations: If the Property Owner or Operator desires to assign its rights and obligations under this Agreement to a successor Property Owner or Operator, the Property Owner or Operator shall, prior to the transfer, provide County with a written Notice to Transfer, stating the date of transfer, and identifying the party to whom the transfer shall be made. Following receipt of the Notice to Transfer, County shall inspect the improvements required under the terms of this Agreement to determine whether the improvements have been completed. If the improvements have not been completed, the Property Owner and/or Operator shall either complete the improvements or post collateral equal to the cost of the completion of the improvements, if such collateral is not in place. If collateral is available at the time, County shall hold a hearing to determine whether the collateral should be called upon to pay County or a contractor C:\Users\rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 15 of 19 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 for Improvements — USR-1769 with a successor 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 posts collateral for the required maintenance. 3.0 Consequence of Termination by Cessation of Pcunit Related Activities: Following County's confirmation that Property Owner 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 Property Owner 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-1769 with a Property Owner and Operator. 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-1769 with a successor Property Owner and/or Operator, the predecessor Property Owner and/or Operator shall have no further rights and/or obligations under this Agreement or in USR-1769. 5.0 Consequence of Termination Pursuant to Paragraph E.11.0: In the event that activities related to USR-1769 cease as a result of the revocation of the permit as described in Paragraph E.11.0 of this Agreement, neither Property Owner nor Operator will be released from any of the obligations imposed by the terms of this Agreement only after Property Owner's successful completion of all improvements required under this Agreement or after County accesses the collateral to the extent necessary to complete improvements County, in its sole discretion, deems necessary to preserve public interests. G. 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. H. Enforcement: If, in the County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify property Owner of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which the County believes constitute violation. Property Owner shall have thirty (30) days within which to either cure the violation or demonstrate compliance. If, after thirty (30) days have elapsed, County believes in good faith that a violation of the terms and conditions of this Agreement still exists (despite cure), County may enforce by any legal means, including, but not limited to, legal action for equitable or monetary relief filed in the Weld District Court, execution upon submitted collateral C:\Users \rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).doczPage 16 of 19 (if applicable), and/or administrative action of the County to suspend or revoke the underlying land use permit or approval pursuant to the procedural provisions of Section 2-4-40 of the Weld County Code. Violations of the terms and conditions of this Agreement include, but are not limited to, violations of the agreements Property Owner must enter into as required by this Agreement, and/or failure to enter into such agreements in a timely manner. I. No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the enforcement of the tciins and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other person or entity not included in this Agreement. It is the express intention of the undersigned parties that any person or entity, other than the undersigned parties, receiving services or benefits under this Agreement shall be an incidental beneficiary only. J. Authority to Sign: Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. If requested by the County, Property Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement within five (5) days of receiving such request. 3978022 Pages: 19 of 21 11/14/2013 12:54 PM R Fee:$0.00 Steve Moreno. Clerk and Recorder, Weld County, CO 1:1Rr;ONEillrlE11111 C:\Users\rchrisman\AppData\Local\Microsoft\Windows\Temporary Internet Files \ContentOutlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 17 of 19 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PROPERTY OWNERS: SIGNATURE A PRINTED NA Yru lizrfelL / TITLE (If Applicable) STATE OF COLORADO County of Weld ) ) ) ss. The foregoing instrument was acknowledged before me this c2th tay of c Picntibwf 2013, by '(bonl4 c W w\‘‘%e WITNESS my hand and official seal. Notary Public My commission Expires: UAL y/d 0 i 9 SIGNATURE PRINTED NAME TITLE (If Applicable) STATE OF COLORADO ) ) ss. County of Weld ) The foregoing instrument was acknowledged before me this day of _ 2013, by WITNESS my hand and official seal. My commission Expires: C:\ Users\ rchrisman\AppData\Local \Microsoft\Windows\Temporary Internet Files\Content.Outlook\SBMMA7C6\USR-1769 Improvements Agreement -High Sierra Water Services -Final (9-23-13).docxPage 1S of 19 Notary Public LESSEE: SIGNATURE PRINTED NAME TITLE STATE OF COLORADO o U Cs- 0 U� m0 rro aa— N '3 S _z wpm d- W�4 N °— am. a o N mo ~ M11 et CL NU1 r, 0�_ C_ NN0 a.£ CO :t. r >_ 0T a Pl.-1 ,-j, - County of Weld ) ) SS. The foregoing instrument was acknowledged before me this day of 2013, by WITNESS my hand and official seal. Notary Public My commission Expires: ATTEST: Weld County Clerk to the Board BY: Deputy Clerk to ` e Board APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO William Garcia, Chair unty Attorney OCT 302013 C\Users\rch isman\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\SBMMA7C6\USR- 1769 Improvements Agreement -High Sierra Water Services -Final (9-23-I 3).docxPage 19 of 19 a7oi3-.3D6 �' Duplicate Original -This bond replaces bond no. LPM9032150 issued•by Fidelity a.nd Deposit° -- Company of Maryland on 4/13/2011. Bond No. 09065628 PERFORMANCE BOND FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO KNOW ALL PERSONS BY THESE PRESENTS, that (name)High Sierra Water Services, LLC, (address)3773 Cherry Creek Drive North, Suite 1000, Denver, CO 80209, a (corporation, limited liability company, etc.)Limited Liability Company, organized under the laws of the State of Colorado, with its principal office located at (address)3773 Cherry Creek Drive North, Suite 1000, Denver, CO 80209, hereinafter called "Principal", and (name of surety)Fidelity and -:Deposit -Company of Maryland, of (address of surety)1400 American Lane, Schaumburg, IL 60196, hereinafter called "Surety" are held and firmly bound unto Board of County Commissioners of Weld County, Colorado, on behalf of Weld County, Colorado, hereinafter called "Obligee" in the full and penal sum of Forty Five Thousand and 00/100 Dollars ($45,000.00), lawful money of the United States for the payment of which well and truly made, we bind ourselves, our heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the above -bound Principal has obtained or is about to obtain from the Obligee a land use permit, namely (insert the specific permit and number - USR, SPR etc)USR-1769 (C-8) , and pursuant to the requirements of said permit, has entered into an Improvements Agreement, dated May 5, 2011, with Obligee, and WHEREAS, The Improvements Agreement requires Principal to obtain a performance bond in an amount equal to the total cost of the improvements for which Principal is responsible and naming Obligee as beneficiary, and WHEREAS, the value of improvements for which Principal is responsible equals Forty Five Thousand an 00/100 Dollars, ($45,000.00). NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if • Principal shall well, truly and faithfully perform its duties, and all of its undertakings, covenants, terms,' and conditions as set forth in the Improvements Agreement, and if Principal shall satisfy all claims and demands set forth in said agreement, and shall fully indemnify and save harmless Obligee from all costs and damages which it may suffer by reason of Principal's failure to perform as agreed, and shall reimburse and repay Obligee all outlay and expense which Obligee may incur in making good any default, then this obligation shall be null and void; PROVIDED FURTHER, that if Principal shall default in any of its obligations set forth in the Improvements Agreement, and thereafter fail to fully indemnify and save harmless Obilgee from all. costs and damages which it may suffer by reason of said default, this obligation shall remain in full force and effect; PROVIDED FURTHER, that Surety, for value received hereby stipulates and agrees 'that no change, extension of time, alteration or addition to the terms of the Improvements Agreement to the work to be performed EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V, Section 8, Attorneys -in -Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporateseal, appoint attorneys -in -fact with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By -Laws of the Companies is still in force. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, _. this 30th day of September 20 13 in 14'71% 199e 41 Thomas O. McClellan, Vice President Donna Bechler From: Sent: To: Cc: Subject: Hi Donna Rae Chrisman [rhrisman@highsierraenergy.com] Tuesday, November 12, 2013 4:08 PM Donna Bechler Dale Butcher; Cindy Haszier C8 Performance Bond - Release Per our phone conversation of this afternoon, please send the letter and subject Performance Bond that was secured by Marcum Midstream to my attention at the address shown below. Thanks so much for your help in this regard. Sincerely, Rae Chrisman Director of Business Administration High Sierra Water Services, LLC High Sierra Water Permian, LLC 8207 W. 20th St., Suite B Greeley, CO 80634 877-893-2466 970-356-5560 PHONE 970-356-5563 FAX 1 November 12, 2013 CLERK TO THE BOARD PHONE (970) 336-7215, Ext. 4227 FAX: (970) 352-0242 P. O. BOX 758 GREELEY, COLORADO 80632 Attn: Rae Chrisman, High Sierra Water Services, LLC 8207 West 20th Street Suite B Greeley, Colorado 80634 RE: Partial Cancellation and release of Collateral for High Sierra Water Services, LLC., USR #1769 Ms Chrisman; On October 30, 2013, the Board of County Commissioners approved the partial cancellation and release of collateral for High Sierra Water Services, LLC, f.k.a. Marcum Midstream 1995-2 Business Trust, dba Conquest Oil (C-8), USR #1769, in the amount of $300,000,00, as referenced above, and accepted replacement collateral from Fidelity and Deposit Company of Maryland, in the amount of $45,00O.00, which shall be retained for two (2) years as warranty collateral. Enclosed is a copy of the Resolution signed by the Board of County Commissioners. If you would like to receive a recorded copy of the resolution, please contact the Recording Department at Weld County Government. I am enclosing the original Performance Bond No. LPM9032150 for $300,000.00, per your instructions. If you have questions or need additional information, please do not hesitate to contact me at (970) 336-7215, Extension 4227. Very truly yours, BOARD OF COUNTY COMMISSIONERS By: Donna J. Bec`hler Deputy Clerk to the Board a e"4 � 5 yea co G ��9lf Se4 0 Bond No. LPM9032150 PERFORMANCE BOND FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO KNOW ALL PERSONS BY THESE PRESENTS, that Marcum Midstream 1995-2 Business Trust , 8207 W. 20th St., Suite B, Greeley, CO 80634 , a (corporation, limited liability company, etc.) organized under the laws of the State of tjc_'.-{(. I4E,, with its principal office located at 8207 W. 20th St., Suite B, Greeley, CO 80634 hereinafter called "Principal", and Fidelity and Deposit Company of Maryland , of 1400 American Lane, Schaumburg, IL 60196 hereinafter called "Surety" are held and firmly bound unto Board of County Commissioners of Weld County, Colorado, on behalf of Weld County, Colorado, hereinafter called "Obligee" in the full and penal sum of Three Hundred Thousand and no/100 Dollars ($ 300,000.00 ), lawful money of the United States for the payment of which well and truly made, we bind ourselves, our heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the above -bound Principal has obtained or is about to obtain from the Obligee a land use permit, namely (insert the specific permit and number - USR, SPR etc) USR-1769 , and pursuant to the requirements of said permit, has entered into an Improvements Agreement, dated " V_1 S; a -O// with Obligee, and WHEREAS, The Improvements Agreement requires Principal to obtain a performance bond in an amount equal to the total cost of the improvements for which Principal is responsible and naming Obligee as beneficiary, and WHEREAS, the value of improvements for which Principal is responsible equals Three ($ 300,000.00 ). Hundred Thousand and no/100 NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if Principal shall well, truly and faithfully perform its duties, and all of its undertakings, covenants, terms, and conditions as set forth in the Improvements Agreement, and if Principal shall satisfy all claims and demands set forth in said agreement, and shall fully indemnify and save harmless Obilgee from all costs and damages which it may suffer by reason of Principal's failure to perform as agreed, and shall reimburse and repay Obligee all outlay and expense which Obligee may incur in making good any default, then this obligation shall be null and void; PROVIDED FURTHER, that if Principal shall default in any of its obligations set forth in the Improvements Agreement, and thereafter fail to fully indemnify and save harmless Obilgee from all costs and damages which it may suffer by reason of said default, this obligation shall remain in full force and effect; PROVIDED FURTHER, that Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Improvements Agreement to the work to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Improvements Agreement. PROVIDED FURTHER, this bond is NONCANCELLABLE, and shall renew annually automatically, from the date of this bond until its release by Obligee, to guarantee that Principal shall well, truly and faithfully perform its duties, and all of the undertakings, covenants, terms, and conditions set forth in the Improvements Agreement, and any extensions thereof which may be granted by Obligee with or without notice to Surety. The parties to this Performance Bond acknowledge that through the Improvements Agreement, Obligee reserved the right to require Principal to obtain a different Performance Bond from a financial institution other than Surety in the event that the rating of Surety by AM Best falls below a B+ rating. IN WITNESS WHEREOF, this instrument is executed in four (4) counterparts, each one of which shall be deemed an original, this 13th day of April , 2011. Principal Secretary/Witness (SEAL) Witness as to Surety D. Westmoreland PO Box 2992 Address Wichita, KS 67201 Address Marcum Midstream Trust ,Princip 1995-2 Business By: Title 7,164›..4;...."?--- Fidelity and Deposit Company of Maryland By: Emily R.'$rhune, Attorney -in -Fact PO Box 2992 Address Wichita, KS 67201 Address IMPORTANT: Surety company executing bond must appear on the Treasury Department's most current list (Circular 570 as amended) and be authorized to transact business in the State of Colorado. Bond must be accompanied with Attorney -in Fact's authority from the surety company certified to include the date of the bond. Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND COLONIAL AMERICAN CASUALTY AND SURETY COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, corporations of the S HEWETT, Vice President, and GREGORY E. MURRAY, Assistant Secretary, in, u u. iIjp VI, Section 2, of the By -Laws of said Companies, which are set forth in full force and effect on the date hereof, does hereby no Jana M. FORREST, Tim H. HEFFEL, Desire • _' ty 4. tt TERHUNE, all of Wichita, Kansas deliver, for, and on its behal such bonds or unde all intents and purp Company at its offic•� KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the aryland, by DAVID S. +hority granted by Article e hereby certified to be , Bret S. BURTON, YDER and Emily R. o ney-in-Fact, to make, execute, seal and y 'n. all bonds and undertakings, and the execution of all be as binding upon said Companies, as fully and amply, to executed and acknowledged by the regularly elected officers of the n their own proper persons. This power of attorney revokes that issued on behalf of Scott T. POST, Bret y:. ' ON, Jana M. FORREST, Tim H. HEFFEL, Erica M. PLUMMER, Desiree E. WESTMORELAND, Kathleen A. SNYDER, dated June 19, 2008. The said Assistant Secretary does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By -Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice -President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seals of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, this 9th day of March, A.D. 2009. anc s s a s s 0 r 0 ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND COLONIAL AMERICAN CASUALTY AND SURETY COMPANY By: Gregory E. Murray Assistant Secretary David S. Hewett Vice President State of Maryland }ss: City of Baltimore J On this 9th day of March, A.D. 2009, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came DAVID S. HEWETT, Vice President, and GREGORY E. MURRAY, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Companies aforesaid, and that the seals affixed to the preceding instrument is the Corporate Seals of said Companies, and that the said Corporate Seals and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. Constance A. Dunn Notary Public My Commission Expires: July 14, 2011 POA-F 076-6692A EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice -President, or any of the Senior Vice -Presidents or Vice -Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident Vice -Presidents, Assistant Vice -Presidents and Attorneys -in -Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature of mortgages,...and to affix the seal of the Company thereto." EXTRACT FROM BY-LAWS OF COLONIAL AMERICAN CASUALTY AND SURETY COMPANY "Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice -President, or any of the Senior Vice -Presidents or Vice -Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident Vice -Presidents, Assistant Vice -Presidents and Attorneys -in -Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature of mortgages,...and to affix the seal of the Company thereto." CERTIFICATE I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that the Vice -President who executed the said Power of Attorney was one of the additional Vice -Presidents specially authorized by the Board of Directors to appoint any Attorney -in -Fact as provided in Article VI, Section 2, of the respective By -Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990 and of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this /,3 fH day of /Opt Assistant Secretary 7004 2890 to tr1 m 0 r` to U.S. Postal Servicem, CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage m O Certified Fee 0 O Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Tor l..f c�_ lrl�.hai it hplerca .,.reef, Apt. No.; ✓I or PO Box No. tr.241.41r_ i ss -- 6{� - City, State IP+4 I- +Ge!JG Xl / Co 8063 • PS Form 3800, June 20C2 See Reverse tor 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. ■ Attedh this card to the back of the mallpiece,. or of the front if space permits. 1. Article Addressed to: ,4,43 teae CAr;sinat A Sierra &Jer Services zze 9807 lc) old! sS/ sit S 6Y-eeJey ea0 seta 2. Article Number Munster (mm service label) PS Form 3811, February 2004 Domestic Return Receipt A. ig ture B. Received by ( ' Med Name) D. Is delivery address different from Item 1? ❑ Yes If YES, enter delivery address below: O No 3..Service "Type 4?C tnied Mall O Express Mall In Registered O Return Receipt for Merchandise O Insured Mall O C.O.D. 4. Restricted Delivery? (Extra Fee) 7004 2890 0003 5709 8655 1w5a+tn-M-1540 Hello