The URL can be used to link to this page

Browse Search

Home My WebLink About20120780 RESOLUTION RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS, AUTHORIZE CHAIR TO SIGN, AND ACCEPT COLLATERAL FOR USE BY SPECIAL REVIEW PERMIT, USR11-0004 - FOSTER TRUCKING, INC. / DONN FOSTER AND MARY LEE HARDY 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 October 26, 2011, the Weld County Board of Commissioners approved Site Specific Development Plan and Use by Special Review Permit, USR11-0004, for Soto Gonzales, P.O. Box 787, Moxee, Washington 98936, c/o Foster Trucking, Inc. / Donn Foster and Mary Lee Hardy, P.O. Box 513, Kersey, Colorado 80644, for an Oil and Gas Support Facility (water hauling) and any use permitted as a Use by Right, Accessory Use, or Use by Special Review in the Commercial or Industrial Zone District (maintenance and fabrication of new and existing trucks), provided that the property is not a lot in an approved or recorded subdivision plat or part of a map or plan filed prior to adoption of any regulations controlling subdivisions, in the A (Agricultural) Zone District, on the following described real estate, to-wit: Lots A and B of Recorded Exemption #4573; being part of the N1/2SW1/4 of Section 1, Township 5 North, Range 65 West of 6th P.M., Weld County, Colorado WHEREAS, pursuant to certain Conditions of Approval, the Board has been presented NE with an Improvements Agreement According to Policy Regarding Collateral for Improvements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Foster Trucking, Inc., / Donn Foster and Mary Lee Hardy, g; with terms and conditions being as stated in said agreement, and L'S WHEREAS, the Board has been presented with Irrevocable Letter of Credit No. my STB12200004 from First National Bank of Omaha, Attn: International Department, 1620 Dodge Nm3� Street, SC 1096, Omaha, Nebraska 68197-1096, in the amount of$37,917.00, and w a9I over re WHEREAS, after review, the Board deems it advisable to approve said agreement and ;ap accept said Irrevocable Letter of Credit as stated above, copies of which are attached hereto i,I_ and incorporated herein by reference. a vu� m � N ID® NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of fr0C2c. Weld County, Colorado, that the Improvements Agreement According to Policy Regarding gicit Collateral for Improvements between the County of Weld, State of Colorado, by and through the Actmizi• Board of County Commissioners of Weld County, and Foster Trucking, Inc. / Donn Foster and Mary Lee Hardy, be, and hereby is, approved. w 2012-0780 L.►-1g- t 'a PL0674 IMPROVEMENTS AGREEMENT- FOSTER TRUCKING, INC. PAGE 2 BE IT FURTHER RESOLVED that Irrevocable Letter of Credit No. STB12200004 from First National Bank of Omaha, Attn: International Department, 1620 Dodge Street, SC 1096, Omaha, Nebraska 68197-1096, in the amount of$37,917.00, be and hereby is, accepted The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 21st day of March, A.D., 2012. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: 'SGsa....7 -� - c� — 61). Sean P. Conway, Chair Weld County Clerk to the Board EXCUSED William F. Garcia, Pro- em BY: Deputy •j.rk to the B•�'• "" .n ci�� kJ!`x-4 Jzti. 1 r ar ra Kirkmeye / W •.u•� . . .VEDA sr OR�. r® t p r:\`. David E. Long ' •. y ttorney ,p Ls �SC�Iv � Dougla%Rademache Date of signature: U/-/0-I - 3838586 Pages: 2 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ill I''i I Iehfnir4Mrh MI'1 I!III 2012-0780 PL0674 MEMORANDUM 1861 - 2011 TO: Clerk to the Board WELJ000NTY DATE: 3/16/2012 FROM: Richard Hastings, Public Works Department SUBJECT: BOCC Agenda Item - Approve Improvements Agreement and Accept Collateral For: Foster Trucking- (USR11-0004) Request for Approval of Improvements Agreement: The Department of Public Works and the Department of Planning Services received a request from the applicant, Mary Lee Hardy, requesting that the Board of County Commissioners consider approving the Improvements Agreement for the Oil and Gas Support Facility (USR11- 0004), located on CR 60.5, between CR's 47 and 49. Weld County Public Works Department reviewed the above-mentioned signed original document and observed the following: • All Public Works related items, of the"Improvements Agreement According To Policy Regarding Collateral For Improvements", are found to be acceptable. Request for Acceptance of Collateral: The Department of Public Works and the Department of Planning Services received a request from the applicant, Mary Lee Hardy, requesting that the Board of County Commissioners consider accepting collateral in the form of an Irrevocable Letter of Credit—First National Bank of Omaha (#STB 12200004) in the amount of$37,917.00, for the above-mentioned Improvements Agreement. Recommendation: The Department's of Public Works and Planning Services are recommending approval of the Improvements Agreement According To Policy Regarding Collateral For Improvements and the acceptance of collateral, in the amount of$37,917.00 for Foster Trucking, Inc.—(USRl 1-0004). pc: Don Carroll, Public Works Kim Ogle, Planning Services 2012-0780 Pio&`9 M:APLANNING-DEVELOPMENT REVIEW\--201 I Planning ReferralsVUSR 11AUSR I 1-0004 Soto-Foster Trucking AImprovements Agreement AApprove IA&Accept Collateral(USRI I-0004)-Foster Trucking,Inc.-MEMOdocx IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Foster Trucking—USR 11-0004 1-0004 THIS AGREEMENT, made and entered into this d r,p day of -roar CL- ,?oz., by and between the County of Weld, State of Colorado, acting through its Board of County Commissioners, hereinafter called "County," and Donn Foster and Mary Lee Hardy, hereinafter called "Property Owner." WITNESSETH: WHEREAS, Property Owner is the owner of, the following described property in the County of Weld, Colorado: Lot A & Lot B of RE-4573; Part of N2SW4 of Section 1, Township 5 North, Range 65 West of the 6th P.M., Weld County, Colorado and hereinafter referred to as "the Property," and WHEREAS, County has approved land use permits for an Oil and Gas Support and Service Facility (water hauling), on approximately 9 acres on the above described real property, and the County is currently in the process of considering an Use-by-Special Review for the Property (USRI 1-0004), and WHEREAS, the Property Owner acknowledges that the issuance of USR11-0004 is conditional upon Property Owner's performance of the on-site and off-site improvements which are described in this Agreement and depicted in the USR Plat Map and the set of accepted Construction Plans provided 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 USRI 1-0004 and/or any activity related to the businesses described above until said improvements have been completed, and WHEREAS, Property Owner agree that pursuant to the provisions of Weld County Code Sec. 23-2-290, the failure to commence construction of the improvements outlined herein or to commence the use of the Property as approved in USRl1-0004 within three (3) years of the approval of the permit issued under USR I 1-0004, may result in the revocation of USRI 1-0004, upon consideration and order of the Board of County Commissioners, and WHEREAS,the Property Owner agrees that the failure to record the plat within the time limits imposed by the Weld County Board of County Commissioners, may result in the vacation of USRI 1-0004, upon consideration and order of the Board of County Commissioners, 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 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI 1\USRI I-0004 Soto Improvements Agreement Foster Trucking (USRI1-0004)IA Final I1-I1-12).docx 3838586 Pages: 3 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO '9p','/..'7_D 7e6 ■IIIRtiIIIN.61,1010MifirtI�GCGI IY Wldlib'll�l ■1111 7 receives approval of an application for a Grading Permit, Building Permit or for a Right-Of-Way Permit for construction of accesses and work within the County and/or State of Colorado Right- Of-Way, or at a time determined acceptable by the Board of County Commissioners. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: A. Required Off-Site Improvements 1.0 Weld County Road 60.5: 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 at the main entrances and exits which extend partially into CR 60.5 right-of-way (ROW), drainage and signage installations, as indicated on the accepted Construction Plans. The main entrance improvements will include asphalt paving a minimum of(100 x 30) feet into the site from County Road 60.5 and a double cattle guard set (one right after the other), placed back to back across the entire width of the roadway, to ensure a complete revolution of the truck tires in order minimize the tracking of mud and debris onto the adjacent County road. (See Section D.2.0 of this Agreement). 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 CR 60.5 and for any construction improvements mandated by the County, and for all expenses associated therewith. These responsibilities include, but are not limited to the following: design, surveys, utility locates, present and future right-of-way clearances and permits; coordination with oil and gas operators and facilities, and affected irrigation facilities; traffic control; and project safety during construction. Property Owner shall obey all applicable regulations issued by the Occupational Safety and Health Administration (hereinafter "OSHA"), 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 must be provided by Property Owner. 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. All plans showing work within the County shall be reviewed and accepted by Weld County,prior to the start of construction. For all construction in the County right-of-way, prior to the issuance of any access permit or right-of-way permit, a construction schedule giving times and locations of all proposed improvements shall be provided to Public Works for review and acceptance. 4.0 Construction Standards: All construction and materials controls for a project and any designated improvements shall conform to the requirements in effect as the time of the completion of the improvements set forth in the "Standard Specifications for Road and Bridge Construction"provided by CDOT. 5.0 Traffic Control: Prior to any construction in the County Right-Of-Way and as a condition of issuance of any access permit or Right-Of-Way permit, the applicant shall submit a 2 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI I\USRI 1-0004 Soto\Improvements Agreement Foster Trucking USR11-000a)IA Final(1-I1-12).dox 3838586 Pages: 4 of 25 04/12/2012 04:13 PM R Fee $0.00 Steve Moreno, Clerk and Recorder, Weld County, CO traffic control plan for County review. During construction, appropriate safety signage shall be posted in accordance with the then current version of the "Manual of Uniform Traffic Control Devices". 6.0 Off-Site Dust Control/Abatement and/or Paving (At This Time Non-Applicable): The Property Owner is required to provide dust abatement along affected County Roads approximately two to five times per year, as determined by the County. 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 ESAL Counts that identify traffic loading due to Property Owner- sourced traffic. The amount and extent of dust control 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 determination 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 County access issues associated with afore- mentioned haul route. Future County mandated measures may include improvements to any haul route intersections or roadways then utilized by Property Owner. Property Owner shall pay a proportionate cost share based on the number of Truck Trip-Equivalent Single Axle Load (ESAL) Counts using then current data on the haul route in the implementation of the above- mentioned improvements. County personnel alone shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. In order to accurately determine percentage of Property Owner haul truck traffic, the County reserves the right to install traffic counters on the driveway(s) of their facility. Haul Route improvements, including turn lanes, may be triggered due to heavy truck traffic associated with the facility. The following Vehicle Per Hour(VPH) triggers for turn lanes will be utilized: a. 25 VPH turning right into the facility during a peak hour. b. 10 VPH turning left into the facility during peak hours. c. 50 VPH turning right out of the facility during a peak hour. 8.0 Timing of Improvements: Subject to the provisions of Weld County Code Sec. 23-2-290 and any conditions or considerations granted by the Board of County Commissioners, 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, Building Permit or Right-Of-Way access permit or 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 off-site improvements shall commence and 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 3 M.\PLANNING-DEVELOPMENT REVIEW-2011 Planning Referrals\USRI l\USRI1-0004 Soto\Improvements Agreement\Foster Trucking (USRII-0004)IA Final(I-II-I2)docx 3838586 Pages: 5 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno Clerk and Recorder, Weld County. CO Win G�+�l��aN4l,�^Ctf1{L�I+�.CJIIiRI�1i,iN l �I III improvements, Property Owner 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.l.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) 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 CR 60.5. Haul trucks will travel east on CR 60.5; to CR 51 or CR 55 to disperse north, or to CR 53 to disperse south. 1.2 No haul truck may exceed CDOT required specifications for pounds per axle. 1.3 In unusual or rare occasions, if particular projects mandate deviation from the above-mentioned haul route for a limited period of time (which is defined in this Agreement as a period of not more than thirty (30) 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. 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 utilizes any unpaved 4 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI I\USRI I-0004 Soto\Improvements Agreement\Foster Trucking (USRI 1-0004)IA Final(1-I I-12)_docx 3838586 Pages: 6 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno.. Clerk and Recorder., Weld County, CO ■iiir n��i tr��i K��ti�r�+.aw�t�� t 11111 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/or paving measures will be determined by site-specific conditions at the time, as determined exclusively by County personnel. 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 truck hauling to and 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 Truck Trip ESAL Counts using then current data of truck trips entering or exiting Property Owners' site onto the haul route in the implementation of the above- mentioned improvements. 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. s M:\PLANNING-DEVELOPMENT REVIEW/1-201i Planning Referrals\l1SRl I\USRl1-0004 Soto\Improvements Agreement\Foster Trucking (USR11-0004)IA Final pal-12).docx 3838586 Pages: 7 of 25 04/12/2012 04:13 PM R Fee $0.00 Steve Moreno. Clerk and RR:: acortlar Weld County, CO gill RiriIIIN 'l��:IfiIL'PYh.4�KPi�ti�l�'IMDui sot 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 USRI 1-0004 as it now exists or may, from time to time, be amended is a remedy which County may impose. D. On-Site Improvements: 1.0 Landscaping and Fencing 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 USR11-0004 plat map. Specifically, Property Owner shall at its own expense, plant, install and/or maintain all grass and other landscaping and re-seeding where applicable as shown on the accepted Construction Plans and USR11-0004 plat map. Additionally, the Property Owner shall install and/or maintain fencing to screen the property where applicable as indicated on the accepted Construction Plans and USR11-0004 plat map. In the event any of these improvements may include work extending into State or County Right-Of- Way in which case a Right-Of-Way or access permit is required. 2.0 On-Site Grading, Drainage Facilities and Paving_ Property Owner shall, at its sole expense, grade and/or pave, if applicable, specified roadways, accesses, easements and parking areas, and install accepted drainage and signage components, adjacent to or within the interior portion of the property in accordance with the directives of the Weld County Department of Public Works and Department of Planning Services, as further described in the accepted Construction Plans and USR11-0004 Plat Map. The main entrance improvements will include; construction of adequate turning radii at the main site entrance onto CR 60.5, an appropriately sized drainage culvert, and a double cattle guard set (one right after the other) across the entire width of the roadway, to ensure a complete revolution of the truck tires to minimize the tracking of mud and debris onto CR 60.5. 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 on-site improvements. Refer to Section A., paragraph 1.0 of this agreement for any specific paving requirements extending into the facility site from CR 60.5. 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 Timing of Improvements: Subject to the provisions of Weld County Code Sec. 23-2-290 and any conditions or considerations granted by the Board of County Commissioners, 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 or an amendment to the existing USR. 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 6 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI l\USR11-0004 Soto\Improvements Agreement\Foster Trucking usRl1-000a IA Final l-ll-lz).docx 3838586 Pages: 8 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO VIII h'�'iPY�Y�I'Itilfi�l tWh,l4'GiNYd+liRl�+�,IN U III 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. 4.0 Acceptance of On-Site Improvements: Upon completion of the on-site improvements, Property Owner shall contact the Weld County Department of Planning Services and the Weld County Department of Public Works and request an inspection of the on-site improvements described in Paragraph D.1.O and D.2.O above. The County's representatives may then initiate the process for "Acceptance of Improvements" set forth in Paragraphs E.6.O, 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. 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 improvements on public rights-of-way or easements and all improvements interior on the Property for approval prior to the letting of any construction contract. 2.0 Rights-of-way and Easements: Before commencing the construction of any improvements herein agreed upon for public rights-of-way or easements, Property Owner shall acquire, at the sole expense of Property Owner, good and sufficient rights-of-way and easements on all lands and facilities traversed by the proposed improvements. All such rights-of-way and 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 USR11-0004 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 7 M:\PLANNING-DEVELOPMENT REVIEW\-201 I Planning Referrals\USR I I\USR 11-0004 Soto\Improvements Agreement\Foster Trucking (USRI1-0004)IA Final(1-I1-12).docx 3838586 Pages: 9 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno.. Clerk and Recorder. Weld County, CO ■IIIK11191WireiNiNkilAChUPtiN4li Y.IN'd11III 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, Property Owner 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 approved plans and specifications, including but not limited to damages to property adjacent to the construction plan area shall be repaired, removed or replaced to the satisfaction of the County at the expense of Property Owner. 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 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 Off-Site Improvements: Property Owner shall warranty all improvements to public rights-of-way, (if any), and all privately created and maintained roads or rights-of-way, or easements, and all on-site improvements for a period of two (2) years. The warranty period shall begin only after the County's execution of a written acceptance of the improvement(s). 6.0 Acceptance of On-Site and/or Off-Site Improvements by the County: Upon compliance with the following procedures by the Property Owner, the improvements shall be deemed accepted by the County. 8 M:\PLANNING-DEVELOPMENT REVIEW-2011 Planning Referrals\USRII\USRI 1-0004 Soto\Improvements Agreement\Foster Trucking (USRII-0004)IA Final(I-II-12).docx 3838586 Pages: 10 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder. Weld County, CO MIMI i P719Pu'1'hi'M14W 4ALNINUM.I04.1114 11111 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, the 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 the 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 the 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, the 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 the Property Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. The County Engineer and /or the Department of Planning Services shall reinspect the improvements after notification from the 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 9 M:\PLANNING -DEVELOPMENT REVIEW\-2011 Planning Referrals\USRII\USRII-0004 Soto\Improvements Agreement\Foster Trucking (USR11-0004)IA Final(1-I1-12).docx 3838586 Pages: 11 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder.. Weld County, CO IC AIM III 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 improvements described in this Agreement shall be provided separately for on-site improvements and off-site improvements; (2) Warranty Collateral required for all improvements during the warranty phase; and (3) Road Maintenance Collateral (If Applicable) to be kept in place for the life of the permit. 7.2 Project Collateral submitted to Weld County to guarantee completion of the improvements indentified on the accepted Construction Plans and USR11-0004 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.O 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. This collateral must be submitted to County upon the submission of the Property Owner's application of a grading, building, and/or right-of way permit, 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. Road Maintenance Collateral is held for use on roads associated with the designated haul route. The amount of the collateral required for road maintenance shall be one percent(%) of the initial Project Collateral listed on Exhibit "A" —Cost Sheet (OFF-SITE) of this agreement. If no Off-Site 10 M:\PLANNING-DEVELOPMENT REVIEW\-20I I Planning Referrals\USRI I\USRI 1-0004 Soto\Improvements Agreement\Foster Trucking (USRI 1-0004)IA Final p-I 1-12)doex 3838586 04/12/2012 04.1139PM R1Fee$0.00 Steve Moreno, Clerk and Recorder. 2Weld County, CO Nn�wiri,* IWEIC141ia , :ULU gill! Collateral is submitted, the amount of Road Maintenance Collateral shall be one percent (%) of the initial Project Collateral listed on Exhibit "A"- Cost Sheet (ON-SITE).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 safety related 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. 7.5.1 Road Maintenance Collateral Option (For Materials Haulers): In lieu of cash collateral, with its obligated yearly inflationary cost adjustments, Property Owner may submit funds quarterly to Weld County, at a rate of ten (10) cents per ton, based on the amount of processed material leaving the site. These funds will be escrowed by the County and utilized for roadway repairs specific to the USR's designated haul route. The first payment of funds will be due three months after the initial sale of materials from the USR site. Subsequent quarterly payments will be deposited in the associated escrow account until the USR permit is terminated. Utilization of this collateral option will negate any further obligations of the Property Owner and/or Applicant to participate in any future maintenance and/or improvements projects for the associated Haul Route. Upon vacation of the USR for this facility and following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining funds in the escrow account will be returned to the USR Permitee. 7.5.2 Road Maintenance Collateral (For Off-Site Dust Control) If Applicable: The total costs for materials and application, will be listed on Exhibit "A" (OFF-SITE) —Dust Control, of this agreement. These funds will be utilized by the County for roadway applications specific to the USR's designated haul route, only if the applicant does not adhere to the requirements for dust suppression as specified in Section A.6.0 of this agreement. Following completion of all construction phases, and/or upon vacation of this USR, and following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining Dust Control collateral will be returned to the USR Permittee. 7.6 Acceptable Project Collateral shall be submitted when the Property Owner submits an application for the Grading Permit, Building Permit, or Right- of-Way Access Permit prior to commencement of Site Preparation, as herein defined. II M.\PLANNING--DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI I\USR I 1-0004 Soto\Improvements Agreement\Foster Trucking (USR 11-0004)IA Final(I-11-12)docx 3838586 Pages: 13 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder. Weld County, CO lilt I??s P�}i14r'�'1 14t L IM C4fSl GItiL Gh4f P011.1 x.111411111 7.6.1 No grading or building permits shall be issued for any site related activities, on the property and no Site Preparation shall commence until cost estimates for all improvements are updated and collateral is provided in the amount of One-Hundred percent (100%) of the then current value of the improvements to be completed, and the development 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 USRI 1-0004 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. 7.7 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 improvements set forth in the Improvements Agreement and the Plat; the LOC shall be subject to the requirements of Weld County Code Section 2-3-30 B. The Property Owner 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. 7.8 Collateral may be in the form of a surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to one hundred percent (100%) of the value of the improvements set forth in the Improvements Agreement and the Plat. The surety bond shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. 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. 7.9 Collateral may be in the form of a cash deposit made with the Board in an amount equivalent to One Hundred Percent (100%) of the value of the improvements set forth in the Improvements Agreement. In the event the applicant is required to warranty the improvements, the 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. 12 M:\PLANNING-DEVELOPMENT REVIEW\-201 I Planning Referrals\USRI I\USRI 1-0004 Soto\Improvements Agreement\Foster Trucking (USRII-0004)IA Final(1-I1-12).docx 3838586 Pages: 14 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO lIII WI%Enikiligillq*N t it MI III 7.10 The Board of County Commissioners reserves the right to reject collateral which is deemed inappropriate or insufficient, which may be either as collateral in the form of a letter of credit offered by a banking institution which does not have at least a"three star" rating given by Bauer Financial, or as collateral in the form of a performance bond offered by an insurance company which does not have at least a B+ rating given by A.M. Best. The Board further reserves the right to require Property Owner 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 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: 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 approved, or that any material deviations have received prior written acceptance from the County Engineer. 8.4 The Statements of Substantial Compliance must be accompanied, if appropriate, by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. 8.5 A letter must be submitted from the appropriate Fire Authority, if applicable, indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and state the results of fire flow tests. 13 M:\PLANNING--DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI 1\USRI 1-0004 Soto\Improvements Agreement\Foster Trucking (USRI I-0004)IA Final(1-I1-12).docx 3838586 Pages: 15 of 25 04/12/2012 04:13 PM R Fee.$0.00 Steve Moreno, Clerk and Recorder, Weld County. CO NALK III III � ! �.iN'1 • 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 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 or portion of the project by the Board. This action will be taken at a regularly scheduled public meeting of the Board. 8.8 Following the written request for partial release of the "Project Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the on-site and/or off-site improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the partial release of "Project Collateral". For all off-site and on-site improvements (including improvements to public rights-of-way or easements), the written request for release of"Project Collateral" shall be accompanied by "Warranty Collateral" in the amount of fifteen percent (15%) of the value of the improvements as shown in this Agreement. However, collateral for improvements fully accepted for maintenance by a responsible governmental entity, special district or utility company will be fully refunded to Property Owner. 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 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 Property Owner following the expiration of the warranty period upon final written acceptance by the Board of County Commissioners. 8.10 For all off-site and on-site improvements (including improvements to public rights-of-way or easements), the written request for release of "Warranty Collateral" shall be accompanied by "Road Maintenance Collateral" (If Applicable) as specified in Section E.7.5 of this Agreement. "Road Maintenance Collateral" (If Applicable) for roads associated with the designated haul route shall be maintained as long as the USR is active. 9.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Property Owner 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 14 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI I\USR I1-0004 Soto\Improvements Agreement\Foster Trucking (USRI I-0004)IA Final(I-II-12).docx 3838586 Pages: 16 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno. Clerk and Recorder, Weld County, CO �IIIh5YiPY}iµu�'I tI��IMrLI ��nUMillL IIH�IMill 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 the any individual or individuals appointed by the County Engineer to act on his/her behalf. 11.0 Violation of Terms of Agreement: If in County's opinion, Property Owner 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 have elapsed, County believes in good faith that there has been a violation of the terms of this Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of this Agreement. Violations of the terms of this Agreement include violations of the agreements contemplated by Paragraphs C. 4.0 & C. 5.0 of this Agreement, and a failure to enter into such Agreements in a timely manner. F. Termination of Agreement: 1.0 Termination Event: This Agreement shall terminate upon the earliest of the following events: 1.1 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Operator's complete cessation of all activities permitted under USR11- 0004 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 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 — USRI 1-0004 by New Property Owner: This Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USRI 1-0004 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 — USRI]-0004 by New Operator: This 1s M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI I\USRI 1-0004 Soto\Improvements Agreement\Foster Trucking (USR11-0004)IA Final(I-11-12).docx 3838586 Pages: 17 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder.. Weld County, CO VIII Rini YhiWa'1'IIk'�Iihl�U4�,1�11 ' N4�1�-0LIN II III Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USRI 1-0004 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 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 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 — USRI1-0004 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 Permit 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 16 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI l\USRI I-0004 Soto\Improvements Agreement\Foster Trucking (USRI1-0004)IA Final(1-11-12).docx 3838586 Pages: 18 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■III h'i Yhiwaili '+,UdIOiIi'UNI NNW DA HIri Bill 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 — USR11-0004 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 — USR11-0004 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 USR11-0004. 5.0 Consequence of Termination Pursuant to Paragraph E.11.0: In the event that activities related to USRI 1-0004 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-I0-101 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 (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 terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other person or entity not included in this Agreement. It is the express intention of the undersigned parties that any person or entity, other than the undersigned parties, receiving services or benefits under this Agreement shall be an incidental beneficiary only. J. Authority to Sign: Each person signing this Agreement represents and warrants that he or 17 M:\PLANNING-DEVELOPMENT REVIEW\-201 I Planning Referrals\USRI 1\USR 11-0004 Soto\Improvements Agreement\Foster Trucking (USRI 1-0004)IA Final(1-11-12)dock 3838586 Pages: 19 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO III!AY''i NVILItiIN"1 II II 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. 18 MIPLANNING-DEVELOPMENT REVIEW-2011 Planning Referrals\USRI I\USRI I-0004 Soto\Improvements Agreement\Foster Trucking (USRI I-0004)IA Final(1-11-12).docx 3838586 Pages: 20 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ��hl'i N1}1 1 �'✓K�1 R��1�7✓<r'L LM'! Iel,kill 11111 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PROPERTY OWNER: SIGNATURE p" 1 � - PRINTED NAME 111 I \av VI, LW'(I' TITLE (If Other Than Property Owner) STATE OF COLORADO ss. County of Weld ) The foregoing instrument was acknowledged before me this day of 2011, by My commission Expires: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Sean P. Conway, Chair MAR 12012 12) Weld County Clerk to the Board1/42 • lab\ • BY: Deputy Cler to the Board �`a p. t 2 APPROVED AS TO FORM: ' ounty Attorney 19 M:\PLANNING-DEVELOPMENT REVIEW\-2011 Planning Referrals\USRI I\USRI 1-0004 Soto\Improvements Agreement\Foster Trucking (USR11-0004)IA Final(I-11-12).docx 3838586 Pages: 21 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder. Weld County, CIO �`D OT ■�� iNy}I�IL� f ��Mt�� i«41NI�r �w��1ltiHl ■iv; � 7Q9 EXHIBIT A - Cost Sheet (Off-SITE) Name of Subdivision,PUD,USR,RE,SPR: Filing/Case#: I I- col Location: lt.)`� I d Rk qs i w Personnel Contact:Name \rAfs1tin -.\6, (11 Title (t('nt ( Phone (1 )D- dJl�l� 3y 1b Intending to be legally bound,the undersipuedApplicant hereby agrees to provide throughout this facility the following improvements. Improvements (OFF-SITE) (Leave spaces blank where they do not apply) Quantity Units Unit Costs($1 Estimated Construction Cost rs) Site Grading 185 ct C e7ec 31 CC Street Grading Street Base Street Paving Lni 'Witt 1%.prL,Imtn%5U0- -I.a) I Z � IC, LDe,oc. blG, IGtr . cc Sidewalk 5I5,.2c, 8 5. 3t Ix, e Stormwater/Drainage Facilities 1_( 15 515,cc Retention/Detention Ponds I 1:. 11aCC.e0 I /j GL•ye Road Culvert �� . Lc. l /a 5c f 5SC.Dc Grass Lined Swale Ditch Improvements Subsurface Drainage Sanitary Sewers/Sewage Facilities I A I5Ltct> b /3C0. 60 Sanitary Sewer Forced Main Erosion Control Measures/BMP's i �� I cc I I jS,p c. Laterals(house or building connected) Water Supply and Storage 3838586 Pages: 22 of 25 04/12/2012 04:13 PM R Fee:$0.00 Water Mains(includes bore) Steve Moreno, Clerk and Recorder, Weld County, CO ■III Palis I,IiFi drilLIRKITIRhil!« HIli1IIII Fire Hydrants Survey,Street Monuments/Boxes Parking Area 5a1 .33 lei` t la rc 9 lc- ce Street Lighting Street Names Signage& Pavement Marking EA x,)00 be I jeep,ou Fencing Requirements Landscaping ( X; �o) I tq 4C-Q0 ° I)GL.cc ) .;3c% cc' Park Improvements Telephone 1 L) /J6.oC $ 1•)e,Cc Gas 1 C5 t 33S.Cc' F -31.S.ce Electric 1 l,5 4 k•,7L.CC f L Ce Water Transfer Dust Control SUB-TOTAL: `` `r z tea; 3i ti0 EL - Engineering and Supervision Costs$ IS%J to Lt. (Testing,inspection,as-built plans and work in addition to preliminary and final plat;supervision of actual construction by contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION $ -3'd1 DO EXHIBIT A - Cost Sheet (OFF-SITE) - Signature Page The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this provision shall be determined solely by Weld County, or its duly authorized agent. Said improvements shall be completed according to the construction schedule set out in Exhibit B By: 1 � ; , Apµtant ;'�t.,;i � u� 1L4 d2 .. we._ Date 7- , 20 I) Title By: Applicant Date , 20 Title 3838586 Pages: 23 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder Weld County, CO ARA!i',G4'LI Jl41IlkBBitl EXHIBIT B-Time Schedule (ON-SITE) & (OFF-SITE) Name of Subdivision,PUD,USR,RE,SPR: USR Filing/Case#: 11-0004 Location: Lots A & B RE4576 Intending to be legally bound,the undersigned Applicant hereby agree,to provide throughout this facility the following improvements. All improvements shall be completed within 1 years from the date of approval of the final plat. Construction of the umprovements listed in Exhibit A shall be completed as follows: Improvements Time Schedule (Leave spaces blank where they do not apply) O( N-S7TE) (OFF-SITE] Site Grading 2 WEEKS (FEB. 1- FEB. 15) Street Grading 1 WEEK (FEB. 15- FEB. 22) Street Base 1 WEEK (FEB. 22- FEB. 29) Street Paving 1 WEEK (FEB. 29- MARCH 7) Curbs,Gutters,and Culverts 15" CMP 1 WEEK (FEB. 15- FEB. 29) Sidewalk 2 WEEKS (FEB. 29- MARCH 14) Stormwater/Drainage Facilities 2 WEEKS (FEB. 15 - FEB. 29) Retention/Detention Ponds 2 WEEKS (FEB. 29 - MARCH 14) Road Culvert 1 WEEK (FEB. 15 - FEB. 29) Grass Lined Swale 1 WEEK (FEB. 15 - FEB. 22) Ditch Improvements Subsurface Drainage Sanitary Sewers/Sewage Facilities 4 WEEKS (FEB. 1 - FEB. 29) Sanitary Sewer Forced Main Erosion Control Measures/BMP's 1 WEEK (JAN. 25 - FEB. 1) Laterals(house or building connected) Water Supply and Storage Water Mains(includes bore) Fire Hydrants Survey,Street Monuments/Boxes Parking Area 3 WEEKS (MARCH 7 - MARCH 28) Street Lighting Street Names Signage&Pavement Marking 1 WEEK (MARCH 28 - APRIL 4) Fencing Requirements Landscaping (SEEDING) 1 WEEK (APRIL 11 - APRIL 18) Park Improvements Telephone 1 WEEK (FEB. 15 — FEB. 29) Gas 1 WEEK (FEB. 15 — FEB. 29) Electric 1 WEEK (FEB. 15 — FEB. 29) Water Transfer Final Completion Date for Entire Prnieet APRIL 2012 (ALL SITE WORK COMPLETE) JULY 2012 (BUILDING COMPLETE) 3838586 Pages: 24 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder. Weld County, Co 1III kip.nallithillIRM t III EXHIBIT B - Time Schedule- Signature Page The County, at its option, and upon the request of the Applicant, may grant an extension of time for completion for any particular improvements shown above, upon a showing by the Applicant that the above schedule cannot be met. By: I� Nit, f�c. . iI:i.' Applicant) S PRESIDENT, FOSTER TRUCKING Date JANUARY 11 , 20 12 Title By: Applicant Date , 20 Title 3838586 Pages: 25 of 25 04/12/2012 04:13 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■III KPY lP1 I'i1I #' IW'l Iiiiifia LAW,«IN Bill V/ "/;.(2First National Bank Global Banking Group %/j / 1620 Dodge Street Omaha NE 68197-1096 1.888.464.7804 clr fi SWIFT:FNBOUS44 IRREVOCABLE LETTER OF CREDIT NO. STB12200004 ISSUANCE DATE: FEBRUARY 23, 2012 EXPIRATION DATE: FEBRUARY 22, 2013 AMOUNT: $37, 917. 00 BENEFICIARY: APPLICANT: BOARD OF COUNTY COMMISSIONERS FOSTER TRUCKING INC. OF WELD COUNTY, COLORADO 33726 COUNTY ROAD 61. 5 1150 0 STREET GILL, CO 80624 GREELEY, CO 80631 ATTN: CLERK TO THE BOARD CO-APPLICANTS: MARY LEE HARDY, OWNER DONN FOSTER, OWNER DEAR SIR OR MADAM: WE HEREBY ESTABLISH AT THE REQUEST AND FOR THE ACCOUNT FOSTER TRUCKING INC. , IN YOUR FAVOR AS BENEFICIARY, OUR IRREVOCABLE LETTER OF CREDIT NO. STB12200004 IN THE AMOUNT OF US DOLLARS THIRTY SEVEN THOUSAND NINE HUNDRED SEVENTEEN AND 00/100 ($37, 917 . 00) (AS MORE FULLY DESCRIBED BELOW) , EFFECTIVE IMMEDIATELY AND EXPIRING AT THE CLOSE OF BANKING BUSINESS ON FEBRUARY 22, 2013, AT OUR OFFICE LOCATED AT FIRST NATIONAL BANK OF OMAHA, ATTN: INTERNATIONAL DEPT. , 1620 DODGE STREET, SC 1096, OMAHA, NE 68197-1096. THIS LETTER OF CREDIT IS ISSUED AS COLLATERAL TO THE BENEFICIARY AS REQUIRED UNDER THE IMPROVEMENT AGREEMENT BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO AND FOSTER TRUCKING, INC. , FOR THE ASSURANCE OF THE COMPLETION OF CONSTRUCTION AND THE MAINTENANCE AND REPAIR OF' THE PUBLIC AND PRIVATE INFRASTRUCTURE AS OUTLINED IN THE IMPROVEMENT AGREEMENT AND IN CONNECTION WITH THE BUILDING PERMIT ISSUED TO FOSTER TRUCKING, INC. FOR THE PROPERTY LOCATED AT 23436 COUNTY ROAD 60. 5, GREELEY, CO 80631 AND REFERRED TO HEREINAFTER AS "DEVELOPMENT PROJECT". FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU FOR ONE OR MORE DRAWINGS PRIOR TO THE CLOSE OF BUSINESS ON FEBRUARY 22, 2013, AGAINST SIGHT DRAFTS IN AN AGGREGATE CUMULATIVE AMOUNT NOT TO EXCEED $37, 917 . 00 DATED THE DATE OF PRESENTMENT, DRAWN ON OUR OFFICE REFERRED TO ABOVE, REFERRING THEREON TO THE NUMBER OF THIS LETTER OF CREDIT AND ACCOMPANIED BY YOUR WRITTEN CERTIFICATE SIGNED BY YOU AND ACKNOWLEDGED AS THEREIN PROVIDED IN THE FORM OF EXHIBIT 1 HERETO. PRESENTATION OF SUCH DRAFT AND CERTIFICATE SHALL BE MADE AT OUR OFFICE REFERRED TO ABOVE. UPON THE EARLIER OF (I) OUR HONORING YOUR DRAFT (S) TOTALING $37, 917 .000 IN THE AGGREGATE PRESENTED ON OR BEFORE THIS LETTER OF CREDIT EXPIRES PURSUANT TO THE TERMS HEREIN OR (II) THE SURRENDER TO US BY YOU OF THIS LETTER OF CREDIT FOR CANCELLATION, THIS LETTER OF CREDIT SHALL AUTOMATICALLY TERMINATE. IT IS UNDERSTOOD THAT THE AMOUNT OF THIS LETTER OF CREDIT MAY BE REDUCED AS PUBLIC IMPROVEMENTS ARE CONSTRUCTED AND ACCEPTED BY THE COUNTY. AS COMPONENTS OF THE INFRASTRUCTURE ARE SATISFACTORILY COMPLETED IN ACCORDANCE WITH IMPROVEMENT AGREEMENT, THE AMOUNT OF THIS LETTER OF CREDIT MAY BE Page 1 of 4 ORIGINAL 0 First National Bank Global Banking Group 1620 Dodge Street Omaha NE 68197-1096 1.888 464.7804 SWIFT:FNBOUS44 Page: 2 Date: February 23, 2012 Our Reference No: 12200004 REDUCED BY THE VALUE OF THE COMPLETED COMPONENT (S) , UPON EXECUTION OF A "REQUEST FOR AMENDMENT TO LETTER OF CREDIT" IN THE FORM ATTACHED HERETO AS EXHIBIT 2. ANY AMENDMENTS TO THIS LETTER OF CREDIT SHALL BE MADE IN THE FORM OF EXHIBIT 2 HERETO. THE COUNTY MAY AT ANY TIME REQUEST THAT THE BANK AMEND THIS LETTER OF CREDIT BY SUBMITTING TO THE BANK A FULLY EXECUTED CERTIFICATE IN THE FORM OF EXHIBIT 2. THE BANK MAY THEREAFTER PROMPTLY ISSUE AN AMENDMENT TO THE LETTER OF CREDIT CORRESPONDING TO THE CHANGE OR CHANGES REQUESTED IN SUCH CERTIFICATE. THIS LETTER OF CREDIT WILL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENTS FOR ONE YEAR FROM THE PRESENT, AND EACH FUTURE EXPIRATION DATE THEREOF, UNLESS ISSUER DELIVERS WRITTEN NOTICE AT LEAST NINETY (90) DAYS PRIOR TO ANY SUCH EXPIRATION DATE TO THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO OF ITS INTENT NOT TO RENEW THIS LETTER OF CREDIT. ANY SUCH NOTICE SHALL BE IN WRITING AND SHALL BE DELIVERED WITH AN ACKNOWLEDGED RECEIPT, EITHER IN HAND, BY CERTIFIED MAIL, OR OVERNIGHT COURIER. THIS LETTER OF CREDIT IS NOT TRANSFERRABLE. BOTH THE BENEFICIARY AND APPLICANT IN THIS LETTER OF CREDIT ACKNOWLEDGE TEAT THROUGH THE IMPROVEMENTS AGREEMENT, BENEFICIARY RESERVES THE RIGHT TO REQUIRE FOSTER TRUCKING, INC. , TO OBTAIN A REPLACEMENT LETTER OF CREDIT FROM A FINANCIAL INSTITUTION OTHER THAN THIS BANK IN THE EVENT THAT THE RATING OF FIRST NATIONAL BANK OF OMAHA BY BAUER FINANCIAL FALLS BELOW A THREE STAR RATING. THIS LETTER OF CREDIT SETS FORTH IN FULL OUR UNDERTAKING, AND SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED, AMPLIFIED OR LIMITED BY REFERENCE TO ANY DOCUMENT, INSTRUMENT OR AGREEMENT REFERRED TO HEREIN, EXCEPT ONLY THE CERTIFICATE AND DRAFT (S) REFERRED TO HEREIN; ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENTS, INSTRUMENT OR AGREEMENT EXCEPT FOR SUCH CERTIFICATE AND DRAFT (S) . THIS LETTER OF CREDIT SHALL BE SUBJECT TO THE UNIFORM COMMERCIAL CODE AS :N EFFECT IN THE STATE OF COLORADO, AND, TO THE EXTENT NOT INCONSISTENT WITH THE TERMS OF THIS LETTER OF CREDIT AND THE UNIFORM COMMERCIAL CODE, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, 2007 REVISION, ICC PUBLICATION NUMBER 600. SINCERELY, (7&- NAME' Y JOLDERSMA TITLE: TRADE SERVICES SPECIALIST OFFICE: FIRST NATIONAL BANK OF OMAHA, INTERNATIONAL DEPARTMENT PHONE NUMBER: 402-602-3564 Page 2 of 4 ORIGINAL VJ First National Bank Global Banking Group 1620 Dodge Street Omaha NE 68197-1096 1.888.464.7804 SWIFT:FNBOUS44 Page: 3 Date: February 23, 2012 Our Reference No: 12200004 EXHIBIT 1 CERTIFICATE THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, HEREBY CERTIFIES AS FOLLOWS WITH RESPECT TO THE CERTAIN IRREVOCABLE LETTER OF CREDIT NUMBER STB12200004 DATED FEBRUARY 23, 2012, ESTABLISHED IN FAVOR OF THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, (THE "LETTER OF CREDIT") : (A) HE(SHE) IS AUTHORIZED TO EXECUTE THIS CERTIFICATE ON BEHALF OF THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO; (B) THE APPLICANT IS IN DEFAULT UNDER THE TERMS OF THE IMPROVEMENT' AGREEMENT AND/OR THE DEVELOPMENT CONSTRUCTION PERMIT; (C) THE SUM OF $ , WHICH IS THE AMOUNT OF THE DRAFT PRESENTED WITH THIS CERTIFICATE, IS THE AMOUNT CURRENTLY DUE TO THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO FROM FOSTER TRUCKING INC. ; (D) THE AMOUNT OF THE ACCOMPANYING DRAFT TOGETHER WITH ALL PREVIOUS DRAWS UNDER THE LETTER OF CREDIT DO NOT EXCEED IN THE AGGREGATE $37, 917.00; AND (E) THE LETTER OF CREDIT HAS NOT EXPIRED. IN WITNESS WHEREOF, THE UNDERSIGNED HAS EXECUTED THIS CERTIFICATE ON BEHALF OF THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO THIS DAY OF , BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO BY: (NAME AND TITLE) Page 3 of 4 ORIGINAL a) First National Bank Global Banking Group 1620 Dodge Street Omaha NE 68197-1096 1.888.464.7804 SWIFT:FNBOUS44 Page: 4 Date: February 23, 2012 Our Reference No: 12200004 EXHIBIT 2 REQUEST FOR AMENDMENT OR RELEASE OF LETTER OF CREDIT #STB12200004 THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO CERTIFIES THAT THE PERSON SIGNING BELOW IS AUTHORIZED TO EXECUTE THE REQUEST FOR AMENDMENT OR RELEASE OF LETTER OF CREDIT ON BEHALF OF THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, AND FURTHER CERTIFIES WITH RESPECT TO THE PROVISIONS CONTAINED IN THE BUILDING PERMIT AND/OR THE IMPROVEMENT AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO (BENEFICIARY) AND FOSTER TRUCKING INC. APPLICANT)THE FOLLOWING: [CHECK APPLICABLE BOXES] ❑ THE LETTER OF CREDIT IS TO BE REDUCED TO $ ❑ THE EXPIRATION DATE OF THE LETTER OF CREDIT IS REVISED TO BE ❑ RELEASE ORIGINAL LETTER OF CREDIT UPON RECEIPT OF SEPARATE REPLACEMENT MAINTENANCE LETTER OF CREDIT IN THE AMOUNT OF $ (CURRENT VALUE) . ❑ RELEASE LETTER OF CREDIT. IN WITNESS WHEREOF, THE UNDERSIGNED HAS EXECUTED THIS CERTIFICATE ON BEHALF OF THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO THIS DAY OF , BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO BY: (NAME AND TITLE) Page 4 of 4 ORIGINAL Donna Bechler From: Esther Gesick Sent: Tuesday, February 21, 2012 8:46 AM To: Donna Bechler Subject: FW: Foster Trucking Letter of Credit Revision FYI... Esther E. Gesick Deputy Clerk to the Board/Office Manager 1150 O Street)P.O. Box 758 Greeley, CO 80632 tel: (970)336-7215 X4226 MM1v .. I r' x. 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, February 17, 2012 3:20 PM To: Joldersma, Mary Cc: Esther Gesick; Richard Hastings Subject: RE: Foster Trucking Letter of Credit Revision Mary The letter of credit you sent looks fine to everyone here Thanks you for your assistance in this matter You may email a non-draft copy of the executed document to me and to Esther Gesick, so that Esther may prepare the matter for a Board Meeting. However, she will need the original by the date of the Board meeting at which it will be presented. Normally, Board meetings are held on Monday and Wednesday mornings at 9:00 a.m., However, the County's offices will be closed on Monday, so the next meeting will be on February 22. Thank you again for your cooperation in this matter! 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: sarriesnco.weld.co.us I !j r ! -- 1 r: I 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 1 prohibited. If you have received this email in error, please notify us immediately by replying and delete the message. Thank you. From: Joldersma, Mary [mailto:mioldersma@fnni.com] Sent: Thursday, February 1.6, 2012 10:36 AM To: Stephanie Arries Cc: Esther Gesick Subject: Foster Trucking Letter of Credit Revision Stephanie, Pursuant to our telephone conversation this morning, I am attaching a revision to the letter of credit language. Please review and let me know if it meets with your approval. Thank you! Mary Mary Joldersma l International Trade Services Specialist First National Bank of Omaha I Global Banking Group 1620 Dodge Street, Stop Code 1096, Omaha, NE 68197-8138 Toll Free: 1-888-464-7804 P: 402-602-3564 I Fax: 402-602-3554 I E: mioldersma(alfnni.com «FOSTER TRUCKING.doc» 2 Donna Bechler From: Esther Gesick Sent: Thursday, February 16, 2012 1:56 PM To: Stephanie Arries; Richard Hastings Cc: Donna Bechler Subject: RE: Foster Trucking Letter of Credit Revision Stephanie, The revision looks fine to me. Once finalized, the bank can email an electronic version for Rich to work from in drafting his Memo and the original may be mailed to our office to match everything together when its ready to go on the Agenda. Thanks! Esther E. Gesick Deputy Clerk to the Board/Office Manager 1150 O Street(P.O. Box 758'Greeley, CO 80632 tel: (970)336-7215 X4226 1t� r� - 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, February 16, 2012 1:05 PM To: Richard Hastings; Esther Gesick Subject: FW: Foster Trucking Letter of Credit Revision After we talked, she made the highlighted changes. I added just a couple of other things— If you have any question/concerns, could you let me know?? 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: Joldersma, Mary [mailto:mjoldersmaftfnni.com] Sent: Thursday, February 16, 2012 10:36 AM To: Stephanie Arries Cc: Esther Gesick Subject: Foster Trucking Letter of Credit Revision Stephanie, 1 Pursuant to our telephone conversation this morning, I am attaching a revision to the letter of credit language. Please review and let me know if it meets with your approval. Thank you! Mary Mary ]oldersma I International Trade Services Specialist First National Bank of Omaha I Global Banking Group 1620 Dodge Street, Stop Code 1096, Omaha, NE 68197-8138 Toll Free: 1-888-464-7804 P: 402-602-3564 I Fax: 402-602-3554 I E: mioldersma@fnni.com «FOSTER TRUCKING.doc» 2 Donna Bechler From: Esther Gesick Sent: Wednesday, February 15, 2012 4:59 PM To: Stephanie Arries Cc: Richard Hastings; Donna Bechler; Esther Gesick Subject: FW: LETTER OF CREDIT LANGUAGE/ FOSTER TRUCKING INC. Attachments: FOSTER TRUCKING.doc Stephanie, I received the message below and I don't think I'm in a position to answer either way officially. My 2 cents...1) We should probably keep the auto renewal because if the applicant gets done in 6 months, they can request release and it won't matter, plus if they don't get done, then we don't have to chase them down for replacement; 2) I don't think we do transfers either, we typically require a release of the old and acceptance of collateral from new owner; and 3) I'm not familiar with this terminology O Esther E. Gesick Deputy Clerk to the Board/Office Manager 1150 O Street'P.O. Box 758'Greeley, CO 80632 tel: (970)336-7215 X4226 i'is ! t� r GF:ti 2. 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: Joldersma, Mary [mailto:mjoldersma©fnni.com] Sent: Wednesday, February 15, 2012 3:49 PM To: Esther Gesick Subject: LETTER OF CREDIT LANGUAGE / FOSTER TRUCKING INC. Esther, I was given your name as the contact for the Board of County Commissioners of Weld County for the letter of credit that we have been asked to issue on behalf of Foster Trucking Inc in the amount of$37,917.00. The language that we were provided is not acceptable to the bank and we have instead used the previously accepted language that the City of Fort Collins uses in it's place. I have attached a draft for your review. Please note the following: 1. The auto renewal clause has been removed as the applicant intends to complete this project within 6 months. Please let me know if the County requires this to be out longer than 1 year from the issuance date and we can add that back in. 2. This letter of credit is NOT transferrable. We normally do not issue transferrable letters of credit but instead require the issuance of a new letter of credit should the parties change. 3. This letter of credit will be subject to the UCP 600 (2007 revision) as the UCP 500 is out of date. 1 Please review and if you have any questions about the changes I have made, please do not hesitate to contact me to discuss. Thank you! Mary Mary Joldersma I International Trade Services Specialist First National Bank of Omaha I Global Banking Group 1620 Dodge Street, Stop Code 1096, Omaha, NE 68197-8138 Toll Free: 1-888-464-7804 P: 402-602-3564 I Fax: 402-602-3554 I E: mioldersma0fnni.com «FOSTER TRUCKING.doc» 2 Hello