HomeMy WebLinkAbout20100841.tiff 128 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 #1660 - DUST AND DIRT
EXCAVATING, LLC, CIO BROKEN ARROW INVESTMENTS, LLC
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS,on October 1, 2008,the Weld County Board of Commissioners approved a Site
Specific Development Plan and Use by Special Review Permit#1660,for Dust and Dirt Excavating,
LLC, c/o Broken Arrow Investments, LLC, Attn: Darwin Derr, 699 North First Avenue, Greeley,
Colorado 80631, for a Mineral Resource Development Facility, including open pit mining and
material processing, in the A (Agricultural) Zone District, on the following described real estate, to-
wit:
Part of the NE1/4 of Section 4, 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 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 Dust and Dirt Excavating, LLC, do Broken Arrow Investments, LLC, with terms and
conditions being as stated in said agreement, and
WHEREAS, the Board has been presented with check #1004 from Broken Arrow Mining
Company, 699 North 1st Avenue, Greeley, Colorado 80631-9536, in the amount of$6,188.53, and
WHEREAS, after review, the Board deems it advisable to approve said agreement and
accept said check as stated above, copies of which are attached hereto and incorporated herein by
reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Improvements 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 Dust and Dirt Excavating, LLC, do Broken Arrow Investments,
LLC, be, and hereby is, approved.
BE IT FURTHER RESOLVED that check #1004 from Broken Arrow Mining Company,
699 North 1st Avenue, Greeley, Colorado 80631-9536, in the amount of$6,188.53, be and hereby
is, accepted.
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2010-0841
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IMPROVEMENTS AGREEMENT-DUST AND DIRT EXCAVATING, LLC, C/O BROKEN ARROW
INVESTMENTS, LLC
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 21st day of April, A.D., 2010.
77:;',:-.BOARD OF COUNTY COMMISSIONERS
.<0 � '�/+ ' kS LD COUNTY, COLORADO
ATTEST: 6,
i 1_
J pouglatRademach , C it
Weld County Clerk to the Boa• ? •
11�(� ara Kirkmeyer, Pr -Tem
Dep it Clerk tihe Board ' r�
Sean P. Conway
William F. Garcia
ounty Attorney EXCUSED
David E. Long
Date of signature: gin'IC
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IMPROVEMENTS AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Dust and Dirt Excavating, LLC, C/O Broken Arrow Investments, LLC— USR-1660
THIS AGREEMENT, made and entered into this LI day of
by and between the County of Weld, State of Colorado, acting through its Board of County
Commissioners, hereinafter called "County," Dust and Dirt Excavating, LLC, hereinafter
called"Property Owner."
WITNESSETH:
in the
WHEREAS, Property Owner is the owner of the following described property County
P Y P P
of Weld, Colorado:
Part of the NEl/4 of Section 4, Township 5 North,
Range 65 West of the 6th P.M., Weld County,
Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Owner has acquired land use permits from County for a Mineral Resource
Development Facility, including open pit gravel mining and materials processing, including a scale
house, crusher(s), and a portable processing plant, on approximately 39 acres on the above
described real property, and the County is currently in the process of amending an Use-by-Special
Review filed by Property Owner for(USR-1660), and
WHEREAS, the Property Owner acknowledges that the issuance of USR-1660 is conditional upon
Property Owner's performance of the on-site and off-site improvements which are described in this
Agreement and depicted in a set of plans provided by Property Owner (hereinafter referred to as
"Plans"), a copy of which is attached to this Agreement and made a part hereof, and
WHEREAS, Property Owner acknowledges that it may not engage in any activity described in
USR-1660 until said improvements have been completed, and
WHEREAS,the parties agree that Property Owner shall not be required to commence work on the
on-site or off-site improvements, nor to provide collateral for said improvements until Property
Owner submits and receives approval for an application for grading permit or for a Right-Of-Way
permit for construction of accesses and work within the County Right-Of-Way.
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 Balsam Avenue/WCR 41.5 The Property Owner shall be responsible for the
construction of certain on-site and off-site safety improvements, which shall include: construction
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of adequate asphalt paved turning radii (60) feet at the main entrance onto Balsam Avenue,
drainage and signage installations, as indicated on the accepted Construction Plans. The main
entrance improvements shall include: asphalt paving of the internal drive-way onto Balsam Avenue
and will extend into the site from Balsam Avenue for a distance of a minimum of 100 feet and
allow for adequate stacking of vehicles, an adequate set of two cattle guards placed adjacent to and
at the interior end of the paved exit lane to minimize the tracking of mud and debris onto Balsam
Avenue.
2.0 Road Improvements Responsibilities: Property Owner is solely responsible for all
designated improvements, as specified above in Section A.1.0, on Balsam Avenue, 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,
right-of-way clearances and permits, coordination with oil and gas operators and facilities, affected
railroad facilities and affected irrigation facilities, traffic control, and project safety during
construction. Property Owner shall obey all applicable regulations issued by the Occupational
Safety and Health Administration (hereinafter "OSHA"), CDOT, Colorado Department of Public
Health and Environment, (hereinafter"CDPHE") and other regulatory agencies.
3.0 Engineering Design and Construction Plans: All engineering designs and
Construction Plans provided by Property Owner shall include, at a minimum, ingress/egress
entrance intersection layouts, existing and proposed grading, drainage designs, storm drainage pipe
sizings and inverts, a cross section of the base/asphalt, approach roads, and adequate turning radii,
and pavement markings. In addition a geotechnical asphalt pavement design to accommodate heavy
truck traffic, prepared by a Professional Engineer licensed to practice in Colorado, is required for
Balsam Avenue. 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 State
Highway Right-Of-Way shall be reviewed and accepted by the Colorado Department of
Transportation, prior to the start of construction. For all construction in the County right-of-way,
prior to the issuance of any access permit or right-of-way permit, a construction schedule giving
times and locations of all proposed improvements shall be provided to Public Works for review and
acceptance.
4.0 Construction Standards: All construction and materials controls for designated
improvements shall conform to the requirements in effect at the time of the completion of the
improvements set forth in the "Standard Specifications for Road and Bridge Construction"
provided by CDOT.
5.0 Traffic Control: Prior to the construction in the County right-of-way and as a
condition of issuance of any access permit or right-of-way permit, Property Owner shall submit a
traffic control plan for County review. During construction, signage shall be posted in accordance
with the then current version of the "Manual of Uniform Traffic Control Devices".
6.0 Off-Site Dust Abatement/Control and/or Paving: The Property Owner is required to
provide dust abatement along Balsam Avenue approximately two to five times per year, as
determined by the County. The County suggests that the applicant work in conjunction with owner
of the existing gravel pit to the west (USR-690) in order to coordinate proportional share costs for
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dust suppression. If consensus on proportional shares cannot be reached between the two gravel
pits, the County will determine the proportionate share of dust control and/or paving costs to be
paid by Property Owner based upon then current truck trip counts that identify traffic loading due
to Property Owner-sourced traffic. The amount and extent of dust control and paving measures
will be determined by site-specific conditions at the time, as determined exclusively by County
personnel. 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) designated in this
Agreement 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 access issues associated with
the haul route. Future CDOT or County mandated measures may include improvements to any
intersection then utilized by Property Owner as a result of the establishment of a new haul route.
Property Owner shall pay a proportionate cost share based on the number of truck trips using then
current data on the haul route in the implementation of the above-mentioned improvements. County
personnel alone shall make all determinations regarding the gathering of and use of traffic data
when making decisions regarding cost sharing.
8.0 Timing of Improvements: Property Owner shall not be required to complete the
aforementioned offsite improvements until the occurrence of the triggering event for each
improvement, namely the application for the grading permit or Right-Of-Way access permit
resulting from the commencement of activities on the property(s). At that time, Property Owner
agrees that the required collateral will be posted and all on-site and offsite improvements shall
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 and request an inspection of the off-site improvements described in paragraph A.1.0-
2.0 above. The County's representatives may then initiate the acceptance process set forth in
Paragraphs E.6.0, sections 6.1-6.3.
9.1 All references in this Agreement to "Acceptance of Improvements" shall
refer to the County confirming completion of said improvement(s) 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:
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1.0 Established Haul Routes:
1.1 The main southbound route is defined as follows: out of the Derr Pit, thence
south on Balsam Avenue to WCR 60.5.
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 days), County or
Property Owner may request a temporary alternative haul route, 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. No haul truck may exceed CDOT required
specifications for pounds per axle.
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 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 site activities and/or truck circulation patterns, and
if the alternative or additional access or haul route utilizes any unpaved portion of County roads,
and if County determines that dust control or paving is required on the unpaved portion of said haul
route roads, Property Owner agrees that dust control or paving measures to protect the public
health, safety, and welfare shall be instituted. County will determine the proportionate share of
dust control and/or paving costs to be paid by Property Owner based upon then current truck trip
counts that identify traffic loading due to Property Owner-sourced traffic. The amount and extent of
dust control and paving measures will be determined by site-specific conditions at the time, as
determined exclusively by County personnel.
C. Road Maintenance Requirements:
1.0 Obligation to Maintain Current and/or Future Haul Routes: Property Owner agrees
to excavate, repair, or patch any damage on current or future haul route roads, which in the sole
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opinion of County has been created by heavy truck hauling from the Property. Should Property
Owner's site activities and/or should Property Owner's truck circulation patterns change in the
future so that County approves an alternate haul route, and all or a significant portion of Property
Owner's sourced traffic no longer utilizes the above-described haul route and instead utilizes other
portions of County roads, Property Owner shall cooperate with County in maintenance of said
roads. The type and method of repair will be determined by the County Engineer or his
representative, and shall require a written amendment to this Agreement executed by County, and
Property Owner. All repairs shall commence within thirty (30) days of receipt of Weld County's
written notice.
2.0 Annual Road Inspection: County will conduct a road inspection annually with the
cooperation of Property Owner, and all other Property Owners and/or Lessees who are required by
County to participate in road improvement/maintenance agreements. As a result of the annual
inspection, County, in its sole discretion, shall determine actual conditions and shall further
determine what road improvement/maintenance work is to be performed during that construction
season.
3.0 Future Road Replacement: At any time in the future, if, in the opinion of County,
road damage increases beyond the point that repair of damage cannot maintain the road in a safe
and usable condition, Property Owner shall pay a proportionate cost of a complete restoration based
on the number of then current truck trips on the haul route.
4.0 Sharing of Road Maintenance Responsibilities with Other Property Owners and/or
Lessees: 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 expenses related to 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 Property Owner and other Property Owners
and/or Lessees. County approval of said Agreements shall be required only to determine whether
the required improvements/maintenance projects have been adequately addressed. County alone
shall determine the sufficiency of all road improvement/maintenance projects when completed.
5.0 Violation of Terms of Agreement: If Property Owner does not perform as outlined
in this Agreement and Exhibits A and B such non-performance shall constitute a violation of any
and all land use permits granted by County to Property Owner for the property described herein,
and County will take whatever remedial measures it deems necessary, first 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 revocation of USR-1660 as it now exists or may,
from time to time, be amended in accordance with the procedures of the Weld County Code.
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-1660 plat map. Specifically, Property Owner shall at its own expense,
plant, install and maintain all trees, grass and shrubs and other landscaping and re-seeding where
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applicable as shown on the accepted Construction Plans and USR-1660 plat map. Additionally,
Property Owner shall install and maintain fencing to screen the property where applicable as
indicated on the accepted Construction Plans and USR-1660 plat map. Some of these
improvements may include work extending into State or County Right-Of-Way in which case a
Right-Of-Way permit is required.
2.0 On-Site Grading, Drainage Facilities and Paving: Property Owner shall, at its own
expense, grade and/or pave specified roadways, accesses and parking areas, and install accepted
drainage facilities, 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, as further
described in the accepted Construction Plans. Any other on-site improvements shall be completed
as indicated on the accepted Construction Plans for this facility. Property Owner shall be
responsible for all maintenance of the onsite improvements. 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 permit is required.
3.0 Timing of Improvements: Property Owner shall not be required to initiate the
landscaping requirements until the occurrence of the triggering event for all improvements, namely
the approval of the grading permit or an amendment to the existing USR. . No grading permit will
be released until collateral is posted for the associated improvements and the 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 pre-approved in writing by the Planning and Public Works Departments. At that
time, 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 acceptance process 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.
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.
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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 to
the interior of 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, 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 stated herein upon
application by Property Owner.
3.1 Said construction shall be in strict conformance to the plans and drawings
approved 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.
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, to include but not limited to damages to
property adjacent to the construction plan area shall be repaired, removed or
replaced to the satisfaction of the County at the expense of Property Owner.
3.4 Said USR improvements shall be completed, according to the terms of this
Agreement, within the construction schedule appearing in Exhibit "B." The
Board of County Commissioners, at its option, may grant an extension of the
time of completion of items shown on the accepted Construction Plans with
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associated costs shown on Exhibit "A" upon application of Property Owner
subject to the terms of Section 6 herein.
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 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, including 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 Improvements by the County: Upon compliance with the following
procedures by Property Owner,the improvements shall be deemed accepted by the County.
6.1 If requested by 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
constitute an acceptance of said portions.
6.2 County may, at its option, issue building permits for construction on lots for
which the improvements detailed herein have been started but not completed
as shown on Exhibit "B," 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, Property
Owner.
6.3a Upon completion of the construction of the required off-site improvements,
and the filing of a Statement of Substantial Compliance by Property Owner's
engineer, Property Owner may, as set forth in Paragraph A.9.0, request in
writing that the County inspect the improvements and recommend to the
Board of County Commissioners that the improvements be accepted and
further that the two-year warranty period begin. Upon completion of the
two-year warranty period, the County Engineer shall, upon request by the
applicant, inspect the subject improvements, and notify Property Owner of
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any deficiencies. If any deficiencies are discovered,the Property Owner shall
correct the deficiencies. The County Engineer shall re-inspect the
improvements after notification from Property Owner that said deficiencies
have been corrected. If the County Engineer finds that the improvements are
constructed according to County standards, he or she shall recommend full
acceptance. Upon a receipt of a positive unqualified written recommendation
from the County Engineer for acceptance of improvements within the USR,
the Board of County Commissioners shall fully accept said improvements.
6.3b Upon completion of the construction of the required on-site improvements,
and the filing of a Statement of Substantial Compliance, when necessary, by
Property Owner's engineer, Property Owner may, as set forth in Paragraph
D.4.0, request in writing that the County inspect the improvements and
recommend to the Board of County Commissioners that the improvements
be accepted and further that the two-year warranty period begin. Upon
completion of the two-year warranty period, the County Engineer and/or the
Weld County Department of Planning Services shall, upon request of
Property Owner, inspect the subject improvements, and notify Property
Owner of any deficiencies. If any deficiencies are discovered, Property
Owner shall correct the deficiencies. The County Engineer and /or the
Department of Planning Services shall re-inspect the improvements after
notification from Property Owner that said deficiencies have been corrected.
If the County Engineer and/or Department of Planning Services find that the
improvements are constructed according to County standards, he or she shall
recommend full acceptance. Upon a receipt of a positive unqualified written
recommendation from the County Engineer and/or the Department of
Planning Services for acceptance of improvements within the USR, the
Board of County Commissioners shall fully accept said improvements.
7.0 General Requirements for Collateral:
7.1 County requires Property Owner to provide collateral to guaranty all of
Property Owner's obligations under this Agreement: (1) Project Collateral
for completion of all 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 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 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 improvements that extend partially off-site as
mentioned in Sections A.1.0 or D.2.0 of this Agreement that include only
improvements involving turning radii and approaches can be included as part
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of the On-site collateral amount, if clearly delineated on accepted
Construction Plans and differentiated as "Entrance Improvements" on
Exhibit "A" On-Site Improvements of this Agreement. Such collateral shall
be provided to the County on the dates set forth herein and shall be held in
total until all improvements have been completed. This collateral must be
submitted to County upon the submission of Property Owner's application of
a grading and/or right-of way permit.
7.3 Warranty Collateral for all on-site and off-site improvements shall be
submitted to County and shall be held in total by the County for two (2)
years following its written acceptance of the improvement(s).
7.4 Road Maintenance Collateral shall be submitted to County upon the release
of the warranty collateral by the Board of County Commissioners. The
amount of the collateral required for road maintenance shall be established
by the Weld County Department of Public Works based upon its
determination of the anticipated expenses, and its determination of the
amount shall be final. Road maintenance collateral shall be held by County
as long as this Agreement is in effect and returned to the Property Owner
upon vacation of associated land use agreement or permit. The Road
Maintenance Collateral will only be accessed by the County, if upon
notification to the Property Owner of required roadway repairs; the 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 Road Maintenance Collateral shall be adjusted annually, during the month of
January, for inflation. The first adjustment shall be made no less than twelve
months after, and in no event later than twenty four months from, the
execution of this Agreement. The adjustment shall be equal to the inflation
rate based on the "Colorado Construction Cost Index Report" as published
by the Colorado Department of Transportation.
7.6 Acceptable collateral shall be submitted at the time Property Owner submits
an application for the grading permit or Right-Of-Way access permit. No grading
or building permits shall be issued for sand and gravel mining, processing
operations improvements, or other site related activities, on the property and
no Site Preparation shall commence until cost estimates for the
improvements are updated and collateral is provided in the amount of One-
Hundred percent (100%) of the value of the improvements to be completed,
and the development plans are confirmed to comply with all current County
standards, policies and regulations. The improvements shall be completed
within the time schedule set forth in Exhibit "B" hereto. If improvements
are not completed within these time frames, the County, at its discretion,
may make demand on all or a portion of the collateral and take steps to see
that the improvements are made. "Site Preparation" shall mean earthwork
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grading or performance of work, or construction or installation of
improvements related to Applicant's planned sand and gravel mining and
processing or any related operations pursuant to USR-1660 that require a
grading or building permit from the County pursuant to the Weld County
Code.
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; the LOC shall be subject to the
requirements of Weld County Code Section 2-3-30 B. Property Owner shall
utilize the following form when obtaining a LOC: IRRVEVOCABLE
STANDBY LETTER OF CREDIT FOR BOARD OF COUNTY
COMMISIIONERS 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. 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.
7.10 The Board of County Commissioners of Weld County 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 (52) 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, Property Owner must present a Statement of
Substantial Compliance from an Engineer registered in the State of Colorado (hereinafter
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"Engineer"),that the project or a portion of the project has been completed in substantial
compliance with approved plans and specifications documenting the following:
8.1 The 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 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
applicable, by a letter of acceptance of maintenance and responsibility by the
appropriate utility company, special district or town for any utilities.
8.5 A letter must be submitted from the appropriate Fire Authority, if applicable,
indicating the fire hydrants are in place in accordance with the approved
plans. The letter shall indicate if the fire hydrants are operational and state
the results of fire flow tests.
8.6 The requirements in the paragraphs 8.0 through 8.5 shall be noted in the
final Construction Plans.
8.7 Following the submittal of the Statement of Substantial Compliance and
written recommendation of acceptance of the 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 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.
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8.9 Following the written request for release of the "Warranty Collateral", the
Weld County Department of Planning Services and the Weld County
Department of Public Works County shall inspect the on-site improvements.
If the improvements need 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 "Road Maintenance Collateral" shall be maintained as long as the USR is
active and returned to the Property Owner upon vacation of associated land
use agreement or permit. It shall be adjusted annually by the inflation rate
based on the "Colorado Construction Cost Index Report" as published by the
Colorado Department of Transportation. Road Maintenance Collateral shall
be adjusted annually, during the month of January, for inflation. The First
adjustment shall be made no less than twelve months after, and in no event
later than twenty four months from the execution of this Agreement
9.0 Successors and Assigns: Except as specified below, this Agreement may not be
delegated or assigned in whole or in part by either party hereto without the express written consent
of the other party 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. In the event of sale, the County can agree to release Property Owner in whole or in part
from obligations under this Agreement. Notwithstanding the previous two sentences, the
obligations to improve and maintain the improvements outlined in this Agreement may be
delegated to a purchaser of a portion or all of the Property or business operation conducted thereon,
provided further that County's consent to such does not relieve Property Owner/Dust and Dirt
Excavating, LLC of any obligations under this Agreement. Notwithstanding any other provisions of
this Agreement or of this paragraph, County may delegate or assign its rights and obligations under
this Agreement without the consent of Property Owner (or either of their assigns, delegates or
successors in interest) to another governmental entity which by annexation or agreement has
assumed jurisdiction over the roads affected by this Agreement. This Agreement shall be binding
upon the heirs, executors, personal representatives, successors and assigns of the 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 thirty (30) days within which
to either cure the violation or demonstrate compliance with this agreement. lf, after thirty (30) 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
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1 111111 11111 111111 11111 111111 III! 111111 III 111111 III IIII
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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 cooperate with
County in negotiating 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-1660
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-1660 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-1660 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-1660 by New Operator. This Agreement
shall terminate following County's execution of a new Improvements Agreement According
to Policy Regarding Collateral for Improvements—USR-1660 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
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1 111111 11111 111111 11111 111111 IIII 111111 III IIIIII III IIII
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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-1660 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 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-1660 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-1660 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-1660.
5.0 Consequence of Termination Pursuant to Paragraph E.11.0. In the event that
activities related to USR-1660 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.
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Page ISofl7 111111111111111111 IIIII 1111111111111111 III 111111 III Ii i
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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. 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.
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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:
- bustustaccarn LLC
PROPERTY .
OWNER: t1�"� l4T t"' CiV(c L L C>
- Dust and Dirt Excavatirs, LLC
By, -1 Z�C.�� � fil GLaa,gG -
Subscribed and sworn to before me by , of Dust and Dirt Excavating,
LLC this day of , .
Subscribed and sworn to before me by of Dust and Dirt Excavating,
LLC this day of , .
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: � p�� < t Iry �c•3 ��1Q cit J(/
La�`Douglasi/Rademach r, Chair APR 2 1 2010
Weld County Clerk to the B r .`0
BY: // .�<
Deputy C : to e Bo =u k
APPROVED AS TO FORIVI>
County Attorney
fill 11111Mill IIIIIHill /III 111111 III111111III /III
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Page 17 of 17
02O/O -0CF1f/
EXHIBIT A - Cost Sheet (OFF-SITE)
Name of Subdivision,PUD, USR,RE,SPRY (L J- - Filing/Case ft: ((ettliO Location 1ZZj
Personnel Contact:Name :.�.e -\�='a`1� Title Phone-t?t-Sc7 aTh'Z7Q-1
Intending to be legally bound,the undersigned Applicant 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($) Estimated Construction
Cost tsi
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
Dust Control
SIB-TOTAL:
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 $ I IIIIII iIIII 111111 1111 111111 1111 111111 111 1111111 11 1111
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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 he 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
Applicant G
o�°` r�Z t� Date /, 20 ` O
Title
•
plicant (�
oD Date 1 G , 20
/ LJ
Title
(If corporation, to be signed by President and attested to by Secretary, together with corporate seal.)
1 1111 11111 11111 IIII
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M:WGREEMENTS\Exhibits\Exh A off-site.xls
EXHIBIT A - Cost Sheet (ON-SITE) '..
Name of Subdivision,PUD,USR,RE,SPR: U5 a- I tobc) Filing/Case II: Location:
Personnel Contact:Name Title Phone
Intending to be legally bound,the undersi:ned 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($) Estimated Construction
Cost(tl
Site Grading En 7r er— loh 5-0 51f -i. en
Street Grading
Street Base
Street Paving
Entrance Improvements(Per Sec. E.-7.2) Cat I/ I a a
Curbs,Gutters,and Culverts U
Sidewalk
Stormwater/Drainage Facilities
Retention/Detention Ponds
Road Culvert
Grass Lined Swale
Ditch Improvements
Subsurface Drainage
Sanitary Sewers/Sewage Facilities
Sanitary Sewer Forced Main
Erosion Control Measures/BMP's
Laterals(house or building connected)
Water Supply and Storage
Water Mains(includes bore)
Fire Hydrants
Survey,Street Monuments/Boxes
Parking Area
Street Lighting
Street Names
Signage& Pavement Marking
Fencing Requirements Landscaping /0 h q y�
as N Tf� 4 ZZ-� , 1 v
Park Improvements
Telephone
Gas
Electric I1111111111111111111111111111 I'll 111111III1111111II1111
Water Transfer 3690128 04/30/2010 11:49A Weld County, CO
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SUB-TOTAL: —mat t^;:.,a._ .x s% .i a ..... J$ 6 ,I SO ' 3
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 $_-+ &/ / S g e S.3
EXHIBIT A - Cost Sheet (ON-SITE) - Signature Page
g g
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 C -'-c V�
Applicant
Date c ,20 (0
Title
/1\ C)
By: K.1
Applicant
ahe r` Date H C , 20 /0
Title
(If corporation,to be signed by President and attested to by Secretary, together with corporate seal.)
1111111 11111 111111 1111 LED IIII IIIIII dI 1111111 II 1111
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M:\AGREEMENTS\Exhibits\Exh A on-site.xls
1
'�qq EXHIBIT B-Time Schedule (ON-SITE) & (OFF-SITE)
Name of Subdivision,PUD, ISR,NtE,SFR: (ln.L_E Filing/Case h:_l —° I,ocation:�=.��3' kK
Intending to he legally hound,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)
ION-SITE I (OFF-SITEI
Site Grading )29, rrac-k7x0 `SyS \L. l7'aG rt3 spy
Street Grading ll
Street Base
Street Paving
Curbs,Cutters,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 /^68,5
Park Improvements
Telephone
Gas
Electric
Water Transfer
Final Completion Date for Entire Proiect (19 go - 'dot& G „go poi/)
11111111111111111111111111111111111111III 1111111111111
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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: ‘Th7.- "tZ
Applicant
Date L — ,20
Title
By./et)L(Alf/r� J jpyijL
Applicant �f //l
1J�►\0 Date [ ,20 /0
Title
(If corporation,to be signed by President and attested to by Secretary,together with corporate seal.)
HIM 11111 111111 11111 EEO IIII III11 III 1111111 II U
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M:WGREEMENTS\Exhibits\Exh B Time Schedule.xls
46:ftt MEMORANDUM
WIm • TO: Board of County Commissioners
COLORADO DATE: April 14, 2010 ',
FROM: Michelle Martin "(///14
SUBJECT: USR-1660
The Department of Planning Services received a check for the Private Improvements Agreement
for USR-1660. USR-1660 was approved by the Board of County Commissioners on October 1,
2008 for a Site Specific Development Plan and a Special Review Permit for a Mineral Resource
Development facility including open pit mining and material processing in the A (Agricultural)
Zone District. (Derr Pit)
Legal: Part NE4 Section 4, T5N, R65W of the 6th P.M., Weld County, CO
Location: East of and adjacent to Balsam Avenue and North of State Highway 263
Parcel No.: 0961 04 000060
The collateral for the Improvements Agreement is in the amount of$6,188.53 for on-site
improvements.
After review of the collateral by the Weld County Attorney, the Department of Public Works and
Department of Planning Services, it has been determined that the amount of the agreement will
be sufficient to complete the on-site improvements required for USR-1660.
2010-0841
a MEMORANDUM
TO: Michelle Martin, Planning Services
DATE: 4/14/2010
FROM: Richard Hastin Hastings, Public Works Department
COLORADO g '
SUBJECT: Approve Improvements Agreement and Accept
Collateral For:
Dust and Dirt Excavating, LLC, C/O Broken Arrow
Investments, LLC—(USR-1660)
Request for Approval of Improvements Agreement:
The Department of Planning Services and the Department of Public Works received a request
from the applicants, Doug and Darwin Derr, requesting that the Board of County Commissioners
consider approving the Improvements Agreement for their Mineral Resource Facility (USR-1660),
located on Balsam Avenue,just north of WCR 60 %2.
Weld County Public Works Department reviewed the above-mentioned signed original document
on 4/13/10, and observed the following:
• All Public Works related items on Exhibit A —Cost Sheet (ON-SITE), of the
Improvements Agreement According To Policy Regarding Collateral For Improvements,
have been filled in and are found to be acceptable.
Request for Acceptance of Collateral:
The Department of Planning Services and the Department of Public Works received a request
from the applicants, Doug and Darwin Derr, requesting that the Board of County Commissioners
consider accepting collateral in the amount of$6,188.53.
Recommendation:
The Department of Public Works is recommending approval of the Improvements Agreement
According To Policy Regarding Collateral For Improvements and the acceptance of collateral, in
the amount of$6,188.53 for Dust and Dirt Excavating, LLC, C/O Broken Arrow Investments,
LLC-(USR-1660).
C:\Documents and Settings\mmartin\Local Settings\Temporary Internet Files\Content.outlook\PJBOGSWO\Approve IA Accept Collateral(USR-
1660)Dust Dirt Excavating-MEMO.docx
Lafarge West, Inc.
925 N. 35th Avenue
LAFARGE Greeley, Colorado 80631
ASPHALT Phone (970) 378-9716
& PAVING Fax (970) 378-2248
To: DUST&DIRT EXCAVATING Contact: DOUG DERR
Address: 699 NORTH 1ST AVE, PO BOX 898 Phone: (970)590-5067
GREELEY,CO 80631 Fax: (866)246-6973
Project Name: BITTERSWEET PATCHING
Project Number: Estimate Number. 9983132
Project Location: 35TH AVE&10Th STREET,GREELEY,CO Bid Date: 3/12/2010
Please note the following change to our pricing process effective June 1st 2008:
Due to the recent volatility in the oil market,Asphalt Cement (AC)suppliers are no longer providing project pricing. AC is
priced to the industry monthly by suppliers with no carry over pricing month to month. Therefore,price quotes are valid thru
(4-30-10)for quantities placed during that month. Arm pricing can be provided at the beginning of each month for work to
be completed during the month. We at Lafarge appreciate your business; please contact your estimator with any specific
questions
'Item# Item Description Estimated Quantity Unit Unit Price Total Price '
1 Pickup Price For Asphalt 40.00 TON $50.00 $2,000.00
Total Bid Price: $2,000.00
Notes: •The following Proposal,subject to terms and conditions,as noted,and on the attached page,if accepted,shall constitute a contract
between the parties to this Proposal.This Proposal shall be valid for a period of Thirty(30)days from the date of Proposal unless
otherwise specifically stated in the Proposal.
*This contract is expressly conditioned upon approval of Customer's credit by Lafarge's credit department,and Lafarge shall have no
obligation to perform its obligations hereunder until such approval has been obtained.Project scheduling is subject to receipt of accepted
Proposal.Please sign in spaces provided to indicate acceptance and return original.Note terms and conditions of sale as listed on
Proposal document.
ACCEPTED: CONFIRMED:
The above prices,specifications and conditions are satisfactory Lafarge West,Inc. (Greeley)
and hereby accepted.
Buyer:
Bowen Winter
Signature:
Estimator/ PM
Date of Acceptance: (970)378-2243
bowen.winter@lafarge-na.com
3/11/2010 12:04:45 PM Page 1 of 2
LAFARGE NORTH AMERICA("LAFARGE")AGREES TO FURNISH LABOR AND MATERIALS TO CUSTOMER AS SET FORTH ON THE
ATTACHED PROPOSAL HEREOF,SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1)RESPONSIBILITIES OF CUSTOMER AND LAFARGE: Customer shall reimburse Lafarge for all expenditures for any required permits or
inspection fees assessed by any government entity and paid by Lafarge unless stated otherwise on the reverse hereof.Customer shall ensure that all
manholes and other utility structures are on proper grade,in proper alignment,and are properly flagged.Lafarge shall not be liable for any damage to
underground facilities caused by equipment used in the performance of this contract.
2)SUBBASE,AND/OR BASE COURSES: If the subbase and/or base course has not been placed by Lafarge,then Lafarge shall not be liable for any
defects in the finished pavement developing as a result of any subbase,and/or base course failure.If,after being advised of existing inadequate or
defective subbase and/or base course conditions,Customer directs Lafarge to proceed with the work without first correcting those conditions,then
Lafarge shall not be liable for any subsequently occurring paving defects or failures.
3)PAYMENT: Lafarge will,from time to time,submit invoices to Customer for work performed and materials and equipment provided by Lafarge.
Payment shall be due 30 days from the date of Lafarge's invoice.Interest at the rate of 18%per annum shall accrue on all invoice amounts not paid
when due. In addition,Customer shall be liable for all costs and reasonable attomey's fees incurred by Lafarge in the collection of any unpaid balance.
The Customer shall not withhold retention.
4)TAXES:The quotation on the reverse side hereof includes sales or use taxes as applicable on job related materials.
5)SCHEDULING OF WORK: Lafarge reserves the right to delay its work until,in its sole judgment,a sufficient area of the job is ready to be paved.If
additional mobilizations are requested,they will be billed on a unit price basis.Customer recognizes that Lafarge'sability to perform paving work is
dependent upon site,weather,and temperature conditions,and Customer agrees that any projected starting or completion date and any work schedule
will remain subject to site,weather,and temperature conditions.Lafarge will use its best reasonable efforts to begin and complete all work promptly.
However,Lafarge does not promise or warrant completion by any specific date.
6)ADDITIONAL WORK: Unless otherwise agreed to in this contract,quantity increases will be billed either on a unit price basis,or at time and
material rates as agreed to by Lafarge and Customer,so long as the extra work can be performed while Lafarge is at work at the job site performing the
original work.Otherwise unit prices for any additional extra work will be negotiated by the parties prior to commencement of such additional work.
7)TERMINATION: Lafarge shall have the right to terminate the contract and shall have no further obligation to perform the contract in the event of any
one of the following occurrences:
• Lafarge is put on allocation for liquid asphalt,fuel,or other petroleum products,or its performance is otherwise restricted by governmental
order or regulation.
• Customer fails to make payments when due.
• Circumstances or events beyond Lafarge's control prevent completion of the work.
• If Lafarge becomes aware of any hazardous substance in,on,or under the property,Lafarge has the right to discontinue work until the
hazardous substance is removed or dealt with in accordance with applicable law.Hazardous substance shall be mean any substance defined
as hazardous in any federal,state or other applicable law or regulation.Lafarge shall not be responsible for removing or otherwise dealing in
any manner with any hazardoussubstance on the property being improved.The Owner of the property shall indemnify Lafarge and hold it
harmless against any loss,damage,or expense that may be incurred by Lafarge which is caused by or attributable to the presence of any
hazardous substance in,on or under the property.
• If national or regional shortages of crude oil and/or other raw materials used for construction supplies occur,the parties agree that the
contract price stated herein may be increased or decreased by the amount necessary to reflect increases or decreases after the date of this
quotation. Lafarge shall give notice of any increase prior to commencing work,and Customer shall have the right to terminate this agreement
within 24 hours after receipt of such notice of increase;provided,however,that the Owner or Customer shall pay Lafarge its actual expenses
incurred through the date of such notice.
• In the event Lafarge terminates the contract for any of the reasons set forth above,Lafarge shall provide Customer with an invoice for all
work completed prior to termination,and Customer shall promptly pay the full amount of said invoice.
• Under no circumstances shall Lafarge be liable for special,indirect or consequential damages incurred as a result of termination of work.
8)WARRANTY: Lafarge warrants that its labor and services will be performed and its materials supplied in a good and workmanlike manner. All
materials supplied by Lafarge shall be of standard grade unless otherwise specified in writing.THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES,EXPRESS OR IMPLIED,INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE,WHICH ARE HEREBY DISCLAIMED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE
DESCRIPTION ON THE FACE HEREOF.Lafarge's warranty shall continue for a period of one year from the date of substantial completion of its work
hereunder.Any claim for defective workmanship or material or for breath of this warranty must be made in writing,delivered via certified mail,return
receipt requested,to Lafarge within 20 days from the date of delivery of the materials or performance of the work by Lafarge. Failure to comply with the
preceding clause shall constitute a full,complete,and unconditional acceptance of materials and work.Lafarge's liability hereunder,whether in
contract,tort,under any warranty,in negligence or otherwise,shall be limited to the reasonable cost of any labor and/or materials shown to Lafarge's
satisfaction to have been defective. Under no circumstances shall Lafarge be liable for special,indirect or consequential damages.The parties agree
that,if soil sterilizer is required to be applied under the terms of this contract,a licensed contractor other than Lafarge will perform such application.
Lafarge shall assign to Customer the manufacturer's warranty,if any,given in connection with such soil sterilizer. Lafarge shall not be liable for any
damage caused by such application of soil sterilizer.
9)ATTORNEY'S FEES AND COSTS: In the event that Lafarge either initiates or is named as a party in any legal action arising from or related to the
famishing of labor,services and/or materials to Customer,including any litigation to enforce a mechanic's lien,Customer shall be liable for all costs and
reasonable attomey's fees incurred by Lafarge in such litigation.
10)INDEMNIFICATION:To the fullest extent permitted by law,Customer shall indemnify Lafarge and hold it harmless from and against claims,
damages,losses and expenses arising out of or resulting from performance of Lafarge's work under this contract,provided that any such claim,
damage,loss or expense is attributable to bodily injury,sickness,disease or death,or to injury to or destruction of tangible property(other than the
work itself),but only to the extent caused by the negligent acts or omissions of Customer,Customer's subcontractors,anyone directly or indirectly
employed by them or anyone for whose acts they may be liable.
The parties acknowledge that this document contains the entire understanding and agreement concerning the work to be done by Lafarge. There are
no agreements,oral or otherwise,which are not set forth herein.
3/11/2010 12:04:46 PM Page 2 of 2
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DBE MANUFACTURING& SUPPLY, LLC Estimate
431 5th Street
Greeley, CO 80631 Date Estimate#
3/8/2010 10-894
Name/Address
Dust&Dirt Excavating
699 North I Avenue
Greeley,Co.80631
Project
Description Qty U/M Cost Total
Pipe Cattle Guard 16',supply angles,end closure plates. 1 1,785.00 1,785.00T
With 7 Beams to with stand the added Loads.
Sales Tax 6.36% 113.53
Thank you for considering us on this project,If you have any questions please call Carl
Kerksiek Total $1,898.53
Phone# Fax#
Toll Free #
970-392-9800 866-949-7811 970-304-1199
1004
BROKEN ARROW MINING CO
699 N 1ST AVE
GREELEY,CO 80631-9536
41 �I PAY } �
1 23-2-1020
DATE ^/ L�1
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