HomeMy WebLinkAbout20083278.tiff RESOLUTION
RE: APPROVE AMENDMENT TO LONG-TERM ROAD MAINTENANCE AND
IMPROVEMENTS AGREEMENT FOR COUNTY ROADS 18 AND 25 AND
AUTHORIZE CHAIR TO SIGN - SW CHAMBERS, 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, the Board has been presented with an Amendment to the Long-Term Road
Maintenance and Improvements Agreement for County Roads 18 and 25 between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on
behalf of the Weld County Department of Public Works, and SW Chambers, LLC, 7600 East
Orchard Road, Suite 370-S, Greenwood Village, Colorado 80111, and
WHEREAS,SW Chambers, LLC,was originally permitted under the name Heit Farms, LTD,
for Use by Special Review Permit#1444, and
WHEREAS,in an Agreement between Chambers and Weld County,dated March 28,2005,
Chambers agreed to pay a proportionate share of road improvements, and requires additional time
to pay for said improvements, commencing December 30, 2008, and ending September 31, 2009,
with further terms and conditions being as stated in said amendment, and
WHEREAS,after review, the Board deems it advisable to approve said amendment,a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Amendment to the Long-Term Road Maintenance and Improvements
Agreement for County Roads 18 and 25 between the County of Weld, State of Colorado, by and
through the Board of County Commissioners of Weld County, on behalf of the Weld County
Department of Public Works, and SW Chambers, LLC, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said amendment.
2008-3278
EG0058
Ct PCB /7/-11-2-
,
AMENDMENT TO LONG-TERM ROAD MAINTENANCE AND IMPROVEMENTS AGREEMENT
FOR COUNTY ROADS 18 AND 25
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 15th day of December, A.D., 2008.
BOARD OF COUNTY COMMISSIONERS
EZta WELD COUNTY, COLORADO
ATTEST: ISIS'E/o1 illiam)Y.' H. Jerke, Chair
Welt County Clerk to theOie •f
XCUSED
.Robert D ro-Tem
���
BY: : did' c. (/C
De. Cle o the Board
Willis F. Garcia
APPROVED A U
M: 'L1c
CI-Lr
" David E. Long
- ounty Attorney LL�� chLJ
glas 2ademacher1
Date of signature: ()12,i ID%
2008-3278
EG0058
MEMORANDUM
WI I D C TO: Clerk to the Board DATE: November 18, 2008
•
COLORADO
FROM: Richard Hastings, Public Works
SUBJECT: Agenda Item
Amendment to the Long-Term Road Maintenance and Improvements Agreement for WCRs 18 and 25
with SW Chambers (doc#2005-1056).
pc: Stephanie Arries, Assistant County Attorney
Don Carroll, Public Works
Josh Holbrook, Public Works
M:AFrancieAAgenda Item doe
2008-3278
ter
AMENDMENT TO LONG-TERM ROAD MAINTENANCE AND
IMPROVEMENTS AGREEMENT FOR COUNTY ROADS 18 AND 25
(SW Chambers)THIS AGREEMENT is made and entered into this 7 day of 41'7/2008, by and between SW Chambers, LLC, (permitted under the name Heit Farms, LTD, USR-
1444), hereinafter referred to as "Chambers", with an address of 7600 East Orchard Road, Suite
370-S, Greenwood Village, Colorado 80111, Weld County Colorado, and the County of Weld,
State of Colorado, by and through the Board of County Commissioners of Weld County,
Colorado, hereinafter referred to as "County", with offices located at 915 10`h Street Tenth
Street, Greeley, Colorado 80631.
WITNESSETH:
WHEREAS, Chambers has an agreement with the County for long term maintenance and
improvements for Weld County Roads 18 and 25, dated the 28th day of March, 2005, titled
"LONG-TERM ROAD MAINTENANCE AND IMPROVEMENTS AGREEMENT FOR
COUNTY ROADS 18 AND 25 (Chambers)," (hereinafter referred to as "Agreement"), and
WHEREAS, paragraphs B through K of the section referred to as "Improvements" of said
Agreement state that Chambers is to be responsible for a proportional share of the maintenance
of the improvements made pursuant to the Agreement, and
WHEREAS, the parties have agreed that Exhibit B's allocation of financial responsibility
shall be applicable to the "Realignment" project described on Exhibit A for the purpose of
allocating Chamber's share of the expenses, which share shall be thirty-four percent (34%) of the
cost of the Improvement for the "Realignment"project, and
WHEREAS, the cost of the first "Realignment" project has been determined to be
$341,746.50, and Chamber's share is $116,193.82 and
WHEREAS, Chambers desires to pay its share of the maintenance expense in a series of
four(4) equal payments every three months,
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
in this Agreement and in the Agreement of March 28, 2005, County and Chambers mutually
agree as follows:
A. Chambers shall pay to County the amount of$116,193.82 as follows:
1. $29,048.45 shall be paid to County on December 30, 2008.
2. $29,048.45 shall be paid to County on March 28, 2009.
3. $29,048.45 shall be paid to County on June 31, 2009.
4. $29,048.45 shall be paid to County on September 31, 2009.
1 111111 11111 111111 IIIIII llll IIII HIED HE IM I'll
3598820 01/09/2009 12:29P Weld County, CO
1 of 2 R 0.00 D 0.00 Steve Moreno Clerk& Recorder (4,l ,:Ly;c
B. IT IS FURTHER AGREED that if Chambers fails to make the payments as set forth
above, the principal balance shall draw interest at the rate of six percent (6%) per annum, and
that failure to make any payment of the principal as set forth above shall cause the obligation to
become due at once, at the option of the County. Chambers specifically waives presentment for
payment, protest, notice of nonpayment and of protest, and if this note, or any default interest
thereon is not paid, or suit is brought, agrees to pay all reasonable costs of collection, including
County's attorney fees.
C. This Agreement does not impair the ability of the County to revoke Use by Special
Review Permit# 1444 for SW Chambers, LLC.
IN WITNESS WHEREOF the parties hereto have signed this Amendment this 7 day of
A-4.)(/ , 2008.
SW Chambers LLC:
By: a&'
anag nark D e4 ene,A,,/ I
ATTEST: „ _/.{ - COUNTY OF WELD, STATE OF
�`�1 COLORADO, by and through the Board of
County Commissioners of Weld County
1 By: -"L;-,4, Cv
Clerk to the ' and S v/ William H. Jerke, Chairman
' ( (l4 .� �s DEC 1 200@
APPROVED AS TO FO�vh i
u( 6 my A ney
INDIUM 111111 111111 IIII IIII 1111111 III 11111 IIII IIII
3598820 01/09/2009 12:29P Weld County, CO
2 of 2 R 0.00 D 0.00 Steve Moreno Clerk& Recorder cilD'd'--go?
PUBLIC WORKS DEPARTMENT
1111 H STREET, P.O. BOX 758
4 GREELEY, COLORADO 80632 461:t WEBSITE: WWW.CO.WELD.CO.US
PHONE: (970) 356-4000, EXT. 3750
FAX: (970) 304-6497
III C.
COLORADO
October 27, 2008
Jon D. Benallo
Southwestern Investment Group, Inc.
7600 East Orchard Road, Suite 370S
Greenwood Village, Co 80110
RE: WCR 18 Realignment Proportional Costs for SW Chambers as part of the Long-Term Maintenance and
Improvements Agreement (Doc. #2005-1056)
Dear Mr. Benallo:
In response to the letter you sent to Don Dunker/Weld County on October 23, 2008, Weld County has the following
response.
By extending the payoff period into 2010, the taxpayers of Weld County would in affect bear the burden of this
payment extension. In order to limit this increased financial burden on the citizens of Weld County, the county is
willing to accept quarterly payments equal to one-fourth the total amount due. In the case of USR-1444, one-fourth
of the total amount of $116,193.82 would come to four equal quarterly payments of $29,048.45. This payment
schedule is in line with other payment agreements the County has accepted with participants in other similar
situations. In order to vacate the Probable Cause Hearing set for November 3, 2008, SW Chambers would have to
agree to this payment schedule by signing the attached "AMENDMENT TO LONG-TERM MAINTENANCE
AND IMPROVEMENTS AGREEMENTS FOR COUNTY ROADS 18 AND 25 (SW Chambers)" and returning it
to Weld County Public Works no later than Thursday, October 29, 2008.
In response to your contention that Weld County is responsible for the patching of WCR 25 prior to paving, Weld
County cites the attached letter written by you and received by Weld County Public Works on October 31, 2007. In
this letter, it specifically states that "...SW Chambers, LLC will maintain, patch and repair the existing north one
mile of WCR 25 until the widening and paving is completed." Therefore Weld County does not concur with your
contention that SW Chambers, LLC is not responsible for this cost.
Please feel free to contact me if you have any questions or concerns regarding this matter. My phone number is
(970) 304-6496, ext. 3727 or email at rastings@co.weld.co.us.
Sincerely,
Richard A. Hastings
Engineering Compliance Specialist& Construction Inspector
pc: Stephanie Arries, County Attorney
M1—Active Projects\WCR 18,West of SFI 85\Design\Correspondence\Letters\S W Chambers WCR 18 Realignment Costs.doc
Lawlis 8r Bruce, LLC D .MA Y2
1
A#onteey at Law •MAY-2 2 20
1875 Lawrence Street, Suite 750 ROBERT J.BRUCE
WELD COUNTY JANE M.LAWLIS
Denver, Colorado 80202 ATTORNEY'S OFFICE
Ph. 303.573.5498
Fax. 303.573.5537 Robbin A. Lego
www.lawlisbruce.com Deiphine L. Farr
May 20, 2008
Stephanie L. Arries
Assistant Weld County Attorney
915 10th Street
Greeley, CO 80632
Re: SW Chambers, LLC -
Heit Sand & Gravel Pit
Dear Ms. Arries:
This letter is in response to your letter to Jon Benallo dated May 15;2008.
Frankly, I am surprised by-the County's attitude toward the issue regarding patching on
WCR 25. As you know,that part of the road at issue has, not until recently, been used by trucks
accessing the Heit Pit. The road has been used extensively by the County in its operations and
use of its pit.
The long term road maintenance concept as originally explained by Don Carrol, was
designed to share costs based upon use. If one property owner used the road more than another.
that property owner should bear the extra maintenance costs. That concept has never changed.
Rather than accepting the fact that prior use of the road by the County caused damages for
which the County should pay for, your letter and the County's position express a convoluted
attempt to shift the burden of prior road maintenance to SW Chambers, LLC. Again, and as
expressed in our telephone discussion, we disagree.
My client has proceeded to authorize the additional work (patching) as part of its road
completion work currently underway. SW Chambers, LLC will not let this issue interfere with
its requirement to complete other road improvements in anticipation of the future truck traffic
that will occur as the mine begins its active operations. Whether the County will ultimately have
a reimbursement and/or financial obligation for this extra work will be decided not by the County
Stephanie Arries
May 20, 2008
Page 2
but apparently by a court at a later date. To this end, all rights of SW Chambers, LLC to recover
sums due from the County are hereby reserved.
Veh t4uly yours,
44101
Robert J. Bre
cc: Jon D. Benallo (via email)
Mark D. Campbell (via email)
•
SW CHAMBERS, LLC
7600 E. Orchard Rd. #307-S
Greenwood Village, CO 80111 _._....
v t,i ; I
•
VIA EMAIL AND •
REGULAR MAIL. .._......_____-
Donald Carroll
Weld County
Public Works Department
P.O. Box 758
Greeley, CO 80632
Re: USR-1444, Lots 4, 5 and 6,
Lupton Meadows Land Division No. I
•
Dear Mr_ Carroll:
In response to your letter of October 5, 2007, SW Chambers, LLC has obtained and
posted a bond for road improvements associated with USR-]444. The original bond is attached
hereto.
This letter confirms that SW Chambers, LLC will complete the widening and paving of
the north one mile of WCR 25 on or before June 15, 2008 as permitted by your letter of October
5,2007. Further, SW Chambers, LLC will maintain, patch and repair the existing north one mile
of WCR 23 until the widening and paving is completed.
I believe we have complied with the terms of your October 5,2007 letter and will
proceed accordingly. Please let me know if you need anything else.
Very truly yours,
SW Chainb s, C
By:1 � l
,Jon B.nnTlo
May 15, 2008
Via U.S. Mail and email
Jon D. Benallo
Southwestern Investment Group, Inc.
333 West Hampden Avenue, Suite 810
Englewood, Colorado 80110
RE: Implementation of Long Term Maintenance and Improvements Agreement
Dear Mr. Benallo:
This letter is written in furtherance of the conversations I have had
with you on May 12 and May 14, 2008 .
A review of the relevant documents and correspondence reflects the
following facts.
The records of the hearing on the application for USR-1444 reflect that
the Board of County Commissioners of Weld County placed certain
conditions on the application' s approval, one of which was that the
applicant would enter into a Long-Term Road Maintenance and
Improvements Agreement with the Weld County Department of Public Works.
That Board Resolution was entered on January 7, 2004 .
Incorporated into the approval were Development Standards to which the
Applicant was - and is - required to adhere. Development Standard
number 44 stated that if the Use by Special Review did not commence
within three years (that would be by January 1, 2007) , it would be
presumed inactive. If the Board determined that it was inactive, the
permit could be revoked.
The required road improvements agreement between, SW CHAMBERS, LLC,
(permitted under the name Heit Farms, LTD) , and Weld County was adopted
by the Board of County Commissioners on March 28, 2005. The Agreement
states as follows in Paragraph C under "Improvements" :
"CHAMBERS and ZADEL shall complete the road improvements associated
with the proposed operation and as outlined in this agreement according
to the following schedule.
1. CHAMBERS and ZADEL shall deliver complete construction
plans to Weld County within 120 calendar days from the
execution of this agreement. The haul route improvements
outlined in paragraphs G and H shall be completed within 12
months from the execution of this agreement.
May 16, 2008
Page 2
Of the referenced paragraphs, only paragraph G addresses WCR 25:
G. The safety improvements of the NORTH WCR 25 SEGMENT and
SOUTH WCR segment SHALL INCLUDE: WIDENING OF WCR 25 to
include additional asphalt shoulders on both sides for a
total pavement width of 32 feet matching the existing base
and asphalt cross-section; a (3) three inch overlay 32 feet
wide, reconstruction or replacement of Bridge 25/18A,
construction of adequate turning radii at the intersection
of WCR 25 and WCR 18 and construction of a school bus pull-
off.
Simply looking at the above-referenced requirements, it appears that
CHAMBERS failed to commence operations within the three (3) year period
following the approval of the USR. This failure alone would have
permitted the Board to revoke the USR. In addition, CHAMBERS failed to
complete the road improvements within twelve (12) months of the
execution of the Agreement. Again, this failure would have justified
the calling of a show cause hearing in which the Board would have
considered the revocation of the USR.
In both of the above situations, the various departments of Weld County
have continued to try to work with CHAMBERS, and have not yet brought
the matter before the Board.
The fact is that had CHAMBERS paved the road as required under the
contract, by April of 2006, the County would not have incurred the
expense of the patching work done in 2006 and 2007 . As things stand
now, because of CHAMBERS' delays, the taxpayers have been burdened by
two additional years of patching expenses.
A further examination of the correspondence between CHAMBERS and Weld
County reveals that in May of 2007, CHAMBERS was permitted to begin
hauling, in exchange for your promise to honor the agreement and to
complete the paving and other upgrades. This was followed by the
requirement that CHAMBERS post a $600, 000 bond for the project. In
addition, on October 31, 2007, the Public Works Department received a
letter from you confirming CHAMBERS' obligation to "maintain, patch and
repair the existing north one mile of WCR 25 until the widening and
paving is completed."
I would also note that you stated to me in our last conversation that
CHAMBERS intended to pave and complete the improvements in the fall of
2007, but simply ran out of time. The work documents I am enclosing
with this letter reflect Weld County' s completion of substantial
patching jobs in 2007, in anticipation of the paving and improvements
that were scheduled to take place.
May 16, 2008
Page 3
In conclusion, it appears that Weld County has honored any obligation
it might have had to patch the road prior to CHAMBERS' paving and
improvements of WCR 25. It is also clear that CHAMBERS has been aware
of its obligation under the USR and under its Agreement with Weld
County, and has not honored those obligations. Weld County will not
perform additional patching work on the road for CHAMBERS, and will
expect that CHAMBERS will complete the paving and improvements by June
15, 2008, as required by Don Carroll' s letter of October 5, 2007 .
I have just been informed that you have authorized preliminary patching
of the road beginning Monday, May 19, 2008, presumably in anticipation
of the paving and improvements you intend to undertake. I want to make
it perfectly clear that Weld County will not accept any financial
responsibility for this patching. - This is solely and completely the
financial responsibility of CHAMBERS.
Yours truly,
Stephanie L. Arries
Assistant Weld County Attorney
PC: B. Barker
P. Persichino
D. Carroll
Hello