HomeMy WebLinkAbout20121214.tiff RESOLUTION
RE: APPROVE IMPROVEMENTS AGREEMENT, AUTHORIZE CHAIR TO SIGN, AND
GRANT TEMPORARY WAIVER OF COLLATERAL FOR USE BY SPECIAL REVIEW
PERMIT#1722- DANIEL OCHSNER
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 June 16, 2010, the Weld County Board of Commissioners approved
Use by Special Review Permit #1722, for Daniel Ochsner, 18905 County Road 394, La Salle,
Colorado 80645, for a Use Permitted as a Use by right, Accessory Use, or Use by Special
Review in the Commercial or Industrial Zone Districts (long term storage units) along with one
(1) single-family dwelling unit when used as living quarters for the proprietor, employees,
caretakers, or security personnel responsible for operating, maintaining, or guarding the
property, where such dwelling unit is enclosed within the principle building (stick-built
office/managers apartment) in the A (Agricultural) Zone District, on the following described real
estate, to-wit:
Part of the W1/2SW1/4 of Section 2, Township 3
North, Range 68 West of the 6th P.M., Weld
County, Colorado
WHEREAS, pursuant to certain Conditions of Approval, the Board has been presented
with an Improvements Agreement According to Policy Regarding Collateral for Improvements
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Daniel Ochsner, with terms and conditions being as stated
in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a
copy of which is attached hereto and incorporated herein by reference, and to temporarily waive
the collateral requirement.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Improvements Agreement According to Policy Regarding
Collateral for Improvements between the County of Weld, State of Colorado, by and through the
Board of County Commissioners of Weld County, and Daniel Ochsner, be, and hereby is,
approved.
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Steve Morena, Clerk and RecorFeder$0W, Weld County, Co
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L_‘s -la 2012-1214
PL0679
IMPROVEMENTS AGREEMENT-DANIEL OCHSNER
PAGE 2
BE IT FURTHER RESOLVED by the Board of County Commissioners of Weld County,
Colorado,that the collateral requirement be,and hereby is,temporarily waived.
The above and foregoing Resolution was,on motion duly made and seconded,adopted
by the following vote on the 14th day of May,A.D.,2012.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY,COLORADO
ATTEST: EXCUSED
Seen P. wa air
Weld County Clerk to the Board
Wi • m F. rcia, rom
BY:
Deputy CI k to the Board kJ: /t�
psit ";;; ra Kirkmeyer
irMs4v APP D AS T L
® Vee A id E.Long
county orney
ougla Rademach
Date of signature: 11-1
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Steve Moreno, Clerk and Recorder, Weld County, CO
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2012-1214
PL0679
MEMORANDUM
TO: Clerk to the Board
1861
DATE: 5/7/2012
ll � � FROM: Richard Hastings, Public Works Department
1111-5-5u N Ys
SUBJECT: BOCC Agenda Item - Approve Improvements
Agreement and Temporarily Waive Acceptance of
Collateral For:
Ochsner- (USR-1722)
Request for Approval of Improvements Agreement:
The Department of Public Works and the Department of Planning Services received a request
from the applicant, Daniel Ochsner, requesting that the Board of County Commissioners consider
approving the Improvements Agreement for the Long Term Storage Unit Facility for(USR-1668),
located on CR 36 & the I-25 Frontage Road, directly east of the town of Mead.
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 Temporary Waiver of Acceptance of Collateral:
The Department of Public Works and the Department of Planning Services received a request
from the applicant, Daniel Ochsner requesting that the Board of County Commissioners consider
temporarily waving acceptance of collateral until such time in the future that a Grading Permit is
approved for this site, as described in 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 that
no collateral be required, at this time, as defined in the previous paragraph, for Ochsner - (USR-
1722).
pc: Heidi Hansen, Public Works
Chris Gathman, Planning Services
2012-1214
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IMPROVEMENTS AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Ochsner—USR-1722
THIS AGREEMENT, made and entered into this /y716 day of vio.y ,6,20 A9,
by and between the County of Weld, State of Colorado, acting through its Board of County
Commissioners, hereinafter called "County," and Daniel Ochsner, hereinafter called "Property
Owner."
WITNESSETH:
WHEREAS, Property Owner is the owner of, the following described property in the
County of Weld, Colorado:
Part W2SW4 of Section 2, Township 3 North, Range 68 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 a Long Term Storage Unit
Facility, on approximately 13.4 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 (USR-1722),
and
WHEREAS, the Property Owner acknowledges that the issuance of USR-1722 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 USR-1722 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 USR-1722 within three (3) years of the
approval of the permit issued under USR-1722, may result in the revocation of USR-1722, 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
revocation of USR-1722, 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
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and off-site improvements required by this Agreement when the Property Owner submits and
receives approval of an application for a Grading Permit, Building Permit or for a Right-Of-Way
Permit for construction of accesses and work within the County and/or State of Colorado Right-
Of-Way, 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: (At this time, non-applicable. The language in this
Section is retained in the event the applicant revises the conditions of operation in the future.)
1.0 1-25 Frontage Road: 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 forty-five (45) feet at the main entrances and exits which extend partially into 1-25
Frontage Road 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 the 1-25 Frontage Road, to ensure a complete
revolution of tires in order minimize the tracking of mud and debris onto the adjacent road. (See
Section D.2.0 of this Agreement). Granting of any new point of access may generate additional
obligations with the County, City of Mead, and Colorado Department of Transportation (CDOT)
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, and for any construction
improvements mandated by the County, City of Mead, CDOT, 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.
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5.0 Traffic Control: Prior to any construction in the County Right-Of-Way and as a
condition of issuance of any access permit or Right-Of-Way permit, the applicant shall submit a
traffic control plan for County review. During construction, appropriate safety signage shall be
posted in accordance with the then current version of the "Manual of Uniform Traffic Control
Devices".
6.0 Off-Site Dust Control/Abatement and/or Paving (Not 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 — Equivalent Single Axle Load (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 truck traffic, the County reserves the right to install
traffic counters on the driveway(s) of their facility. The percentage of 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 traffic 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 Property Owner-sourced
traffic route(s) may be required by County. Property Owner shall address all County access
issues associated with afore-mentioned traffic route. Future County mandated measures may
include improvements to any traffic route intersections or roadways then utilized by Property
Owner. Property Owner shall pay a proportionate cost share based on the number of Truck Trip
ESAL Counts using then current data on the traffic 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 truck traffic, the County reserves the right to
install traffic counters on the driveway(s) of their facility.
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
improvements, Property Owner shall contact a representative of; the Weld County Department of
Public Works, City of Mead, CDOT, and request an inspection of the off-site improvements
described in paragraph A.1.0-2.0 above. The County's representatives, following consultation
with representatives from the City of Mead and CDOT, may then initiate the acceptance process
set forth in Paragraphs E.6.0, sections 6.1-6.3.
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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: (At this time, non-applicable)
1.0 Established Haul Routes:
2.0 Haul Route Signage:
3.0 No Deviation from Permitted Haul Routes:
4.0 Effect of Future Changes to Haul Routes:
C. Road Maintenance Requirements:
1.0 Obligation to Maintain Current and Future Haul Routes: (Not Applicable)
2.0 Annual Road Inspection: (Not Applicable)
3.0 Future Road Replacement: (Not Applicable)
4.0 Sharing of Road Maintenance Responsibilities with Other Property Owners: (Not
Applicable)
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-1722 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 USR-1722 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 USR-1722 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 USR-1722 plat map. In the event any of
these improvements may include work extending into State or County Right-Of-Way in which
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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 USR-1722 Plat Map. The main entrance improvements will include;
construction of adequate turning radii at the main site entrance onto the I-25 Frontage Road, an
appropriately sized drainage culvert, and asphalt paving a minimum of(100 x 30) feet into the
site from the 1-25 Frontage Road, to ensure a complete revolution of the truck tires to minimize
the tracking of mud and debris onto the I-25 Frontage Road. 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. Additional
infrastructure improvements will be addressed at the time of application for any future amended
USR. Some of these improvements may include work extending into State or County Right-Of-
Way in which case a Right-Of-Way or access permit is required.
3.0 Timing of Improvements: Subject to the provisions of Weld County Code Sec.
23-2-290 and any conditions or considerations granted by the Board of County Commissioners,
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. Except with prior County consent, no grading
permit will be released until collateral is posted for all on-site and off-site improvements and the
final 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.
4.0 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.1.0 and D.2.0 above. The County's representatives may
then initiate the process for "Acceptance of Improvements" set forth in Paragraphs 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.
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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 USR-1722 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, 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
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or replaced to the satisfaction of the County at the expense of Property
Owner.
4.0 Release of Liability: To the extent allowed by law, each party to this Agreement
(the "Indemnifying Party") shall indemnify and hold harmless the other party (the "Indemnified
Party") from any and all liability, loss and damage the Indemnified Party may suffer as a result
of all suits, actions or claims of every nature and description caused by, arising from, or on
account of the negligent or intentional act of the Indemnifying Party or its officers, agents,
employees, except for the liability, loss, or damage arising from the negligent or intentional act
of the Indemnified Party. All contractors and other employees engaged by Applicant and County
in construction of the On-Site and Off-Site Improvements shall maintain adequate worker's
compensation insurance and public liability insurance coverage, and shall operate in strict
accordance with the laws and regulations of the State of Colorado governing occupational safety
and health. The obligations of the Applicant under this paragraph shall not extend to any
judgments against County which are in excess of the limitations on liability set forth in the
Colorado Government Immunity Act, C.R.S. Section 24-10-101, et. seq., to the maximum extent
that such limitations or liability are applicable.
5.0 Warranty of On-Site and Off-Site Improvements: 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.
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
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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
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 identified on the accepted Construction Plans and USR-
1722 Plat Map and further enumerated in the costs listed in Exhibit "A,"
S
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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. 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, or at a time determined
acceptable by the Board of County Commissioners, and shall be held in
total by County as provided in Paragraph E. 7.3 below until all
improvements have been completed.
7.3 Warranty Collateral for all on-site and off-site improvements shall be
submitted to County and shall be held in total by the County for two (2)
years following its written acceptance of the improvement(s).
7.4 In the event Property Owner fails to adequately complete and/or repair
improvements associated with this Improvements Agreement, County will
access, in its sole discretion, Project or Warranty Collateral to the extent
necessary to complete said improvements or repairs in order to preserve
public interest.
7.5 Road Maintenance Collateral shall be submitted to County upon the
release of the warranty collateral by the Board of County Commissioners
or at the time of approval of this Agreement, if no Project Collateral was
initially submitted. Road Maintenance Collateral is held for use on roads
associated with the designated haul route. The amount of the collateral
required for road maintenance shall be one percent (%) of the initial
Project Collateral listed on Exhibit "A" — Cost Sheet (OFF-SITE) of this
agreement. If no Off-Site 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). If no Project
Collateral was initially submitted, the amount of Road Maintenance
Collateral to be submitted at the time of approval for this Agreement shall
be $3,600.00 for facilities adjacent to paved haul route roads or $2,400.00
for facilities adjacent to gravel haul route roads, and the amounts will be
listed on Exhibit "A"- Cost Sheet (OFF-SITE). 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.
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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.
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 USR-1722 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
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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.
7.10 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.
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8.5 A letter must be submitted from the appropriate Fire Authority, if
applicable, indicating the fire hydrants are in place in accordance with the
approved plans. The letter shall indicate if the fire hydrants are operational
and, if required by the County, state the results of fire flow tests.
8.6 The requirements in 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" 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
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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 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 USR-
1722 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 — USR-1722 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-1722
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Steve Moreno.. Clerk and Recorder, Weld County CO
11111
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-1722 by New Operator: This
Agreement shall terminate following County's execution of a new Improvements
Agreement According to Policy Regarding Collateral for Improvements — USR-1722
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 — USR-1722 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.
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Steve Moreno, Clerk and Recorder, Weld County, CO
■III I .Phil���l i?�l�i+.Iy� ICU Mare +elf0aiNlii 11111
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
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-1722 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-1722 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-1722.
5.0 Consequence of Termination Pursuant to Paragraph E.11.0: In the event that
activities related to USR-1722 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
(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
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Steve Moreno, Clerk and Recorder, We ••Ii
or entity not included in this Agreement. It is the express intention of the undersigned parties that
any person or entity, other than the undersigned parties, receiving services or benefits under this
Agreement shall be an incidental beneficiary only.
J. Authority to Sign: Each person signing this Agreement, and associated Exhibits,
represents and warrants that he or she is duly authorized and has legal capacity to execute and
deliver this Agreement. Each party represents and warrants to the other that the execution and
delivery of the Agreement and the performance of such party's obligations hereunder have been
duly authorized and that the Agreement is a valid and legal agreement binding on such party and
enforceable in accordance with its terms. If requested by the County, Property Owner shall
provide the County with proof of Property Owner's authority to enter into this Agreement within
five (5) days of receiving such request.
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Steve Moreno: Clerk and Recorder. Weld County, CO
man lint itiligioinIM�,I�W G iiitatN4C10 11 111
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
PROPERTY
OWNER: r\ n
SIGNATURE X ��
PRINTED NAME D a n r P_ 0c k s e r
TITLE (If Other Than Property Owner)
STATE OF COLORADO )
ss.
County of Weld )
The foregoing instrument was acknowledged before me this day of
2012, by
My commission Expires:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
William . Garcia Chair Pro—Tem
° ( MAY 142012
Weld County Clerk to the Board
S�J
BY. •
eputy Clerk the Board
APPROVED AS TO FORTY(' ` --
• County Attorney
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Steve Moreno. Clerk and Recorder Weld Count, CO
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(p� EXHIBIT A -.Cost Sheet (ON-SITE)
Name of Subdivision,PUD,USR,RE,SPR: ker.1•G3(Q.yt'I,'ni -Z-t r_c5eFiling/Case#: Location:
Personnel Contact:Name Da,r)jPJ bt.11'rs reta- J Title Duns ex- Phone Cs'7-o77a
Intending to be legally bound,the undersigned Applicant hereby agrees to provide throughout this facility the following improvements.
Improvements (ON-SITE)
(Leave spaces blank where they do not apply)
Quantity Units Unit Costs($) Estimated Construction
Cost(Si
Site Grading qi 3 P-G #)5/W by Iea) S oi
Street Grading
Street Base
Street Paving
Entrance Improvements(Per Sec. E.-7.2)
Curbs,Gutters,and Culverts
Sidewalk
Stormwater/Drainage Facilities 4.23 L F b4. SD *02 71 b'D4)t trb
Retention/Detention Pods 1 A 13 t DDb / 3, 17D o , 6D
Road Culvert
Grass Lined Swale
Ditch Improvements
Subsurface Drainage
Sanitary Sewers/Sewage Facilities
Water Supply
Erosion Control Measures/BMP's £ br L F ,)) I.a5 ,1 )),2-6-,
Fire Hydrants
Survey,Street Monuments/Boxes
Parking Area
Street Lighting
Street Names
Signage& Pavement Marking
Fencing Requirements 34-7 Lx 60 , crc .4 at, g,l.b,pl
Landscaping(Seeding,Trees,etc.)
Park Improvements
3852643 Pages: 20 of 23
0Ste/14/2012 ve Moreno, ClerBk and Recorder,M R 0 Weld County, CO
NCIpli IN+t 111111
SUB-TOTAL: ,- 'fit: # ., s _,. -x 'Igth A ZS`rl 1Z,i, DU
Engineering and Supervision Costs$ -
(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 $ 7s`i't b a)
:EXHIBIT A Cost hee (ON-SITE:): S gnati re 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: DCLJ
Applicant
altYnA-J Date d 7 ,20 lc)--
Title
By:
Applicant
Date ,20
Title
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Steve Moreno, Clerk and Recorder, Weld County, CO
■iilFYr�P1}ii' ii��t�!LIH3114Pil,1401IWiCH Ilk 11111
EXHIBIT B-Time Schedule(ON-SITE)& (OFF-SITE)
Name of Subdivision,PUD,USR,RE,SPR: Filing/Case p: Location:
Intending to be legally bound,the undersigned Applicant hereby agrees to provide throughout this facility the following improvements.
All improvements shall be completed within years from the date of approval of the final plat.
Construction of the umprovements listed in Exhibit A shall be completed as follows:
Improvements Time Schedule
(Leave spaces blank where they do not apply)
(ON-SITE1 DOFF-SITEl
Site Grading
Street Grading
Street Base
Street Paving
Curbs,Gutters,and Culverts
Sidewalk
Stormwater/Drainage Facilities
Retention/Detention Ponds
Road Culvert
Grass Lined Swale
Ditch Improvements
Subsurface Drainage
Sanitary Sewers/Sewage Facilities
Sanitary Sewer Forced Main
Erosion Control Measures/BMP's
Laterals(house or building connected)
Water Supply and Storage
Water Mains(includes bore)
Fire Hydrants
Survey,Street Monuments/Boxes
Parking Area
Street Lighting
Street Names
Signage&Pavement Marking
Fencing Requirements
Landscaping
Park Improvements
Telephone
Gas
Electric
Water Transfer
Final Completion Date for Entire Project
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Steve Moreno, Clerk and Recorder, Weld County, CO
Ell Iiii ir.NI�1�IENAVIl4iLANA Weise iNl l II 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, Y
Applicant ry
Date 67" / ,20 /
Title
By:
Applicant
Date ,20
Title
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Steve Moreno, Clark and Recorder Weld County, CO
����F5liP:hd��IIu��IhGl.U+4LInW� �NkR C64171il Mul iI III
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