HomeMy WebLinkAbout20073412 RECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
OCTOBER 31, 2007
The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity
with the laws of the State of Colorado at the regular place of meeting in the Weld County Centennial
Center, Greeley, Colorado, October 31, 2007, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair and on roll call the following members were
present, constituting a quorum of the members thereof:
Commissioner David E. Long, Chair
Commissioner William H. Jerke, Pro-Tem
Commissioner William F. Garcia
Commissioner Robert D. Masden
Commissioner Douglas Rademacher
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Jennifer VanEgdom
Director of Finance and Administration, Donald D. Warden
MINUTES: Commissioner Rademacher moved to approve the minutes of the Board of County
Commissioners meeting of October 29, 2007, as printed. Commissioner Masden seconded the motion,
and it carried unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda.
PUBLIC INPUT: No public input was given.
CONSENT AGENDA: Commissioner Rademacher moved to approve the consent agenda as printed.
Commissioner Jerke seconded the motion, and it carried unanimously.
COMMISSIONER COORDINATOR REPORTS: There were no Commissioner Coordinator Reports.
WARRANTS: Donald Warden, Director of Finance and Administration, presented the following warrants
for approval by the Board:
All Funds $461,022.63
Electronic Transfers - All Funds $1,591,075.74
Commissioner Jerke moved to approve the warrants as presented by Mr.Warden. Commissioner Masden
seconded the motion, which carried unanimously.
2007-3412
BC0016
BIDS:
PRESENT TRAFFIC SIGNALS AND INTERSECTION IMPROVEMENTS AT STATE HIGHWAY 52 AND
COUNTY ROAD 13 BID - DEPARTMENT OF PUBLIC WORKS: Mr. Warden read the names of the nine
vendors who submitted a bid into the record. Said bid will be considered for approval on
November 14, 2007. In response to Commissioner Jerke, Drew Scheltinga, Department of Public Works,
stated the engineer's estimate for the bid was within $10,000.00 of the lowest bid submitted. Mr. Warden
indicated an Energy and Mineral Impact Assistance Grant, in the amount of approximately$800,000.00,
was awarded for improvements associated with County Road 13.
ACTION OF THE BOARD CONCERNING INMATE COLLECT CALLING PHONE SERVICES BID -
SHERIFF'S OFFICE: Mr. Warden stated the Sheriff's Office recommends a continuance of the matter to
November 7, 2007, in order for a committee evaluation to be completed. Commissioner Rademacher
moved to continue the matter to November 7, 2007, at 9:00 a.m., based upon staff's recommendation.
Seconded by Commissioner Jerke, the motion carried unanimously.
NEW BUSINESS:
CONSIDER TEMPORARY CONSTRUCTION EASEMENT FOR IMPROVEMENTS TO CR 13 AND
AUTHORIZE CHAIR TO SIGN - DACONO COTTONWOOD, LTD.: Leon Sievers, Department of Public
Works, stated this is the tenth temporary construction easement to be acquired for road improvements
south of State Highway 52. He stated the parcel is located on the west side of County Road 13, and north
of County Road 10. He further stated 5,625 square feet of temporary construction easement will be
acquired in the amount of$300.00, which is the minimum reimbursement amount. Commissioner Jerke
moved to approve said temporary construction easement and authorize the Chair to sign. Seconded by
Commissioner Rademacher, the motion carried unanimously.
CONSIDER DIRECTING PAYMENT OF COLLATERAL TO WELD COUNTY BOARD OF
COMMISSIONERS REGARDING IMPROVEMENTS TO CR 38 - PLATTE SAND AND GRAVEL, LLC:
Stephanie Arries, Assistant County Attorney, stated the Department of Public Works has requested to
withdraw collateral funds against the Letter of Credit on file for Platte Sand and Gravel, LLC (PSG),
regarding improvements to County Road 38. She stated the insufficiency of the road is detailed in the
letter written by Mr. Scheltinga, dated July 2, 2007.
Mr. Scheltinga stated several items in the original plans were approved, including constructing a concrete
lined irrigation ditch, and addressing the existing deteriorated ditches within the right-of-way. He stated
the County anticipated the construction activities would include removal of the old ditches and relocation
of the new ditches outside of the right-of-way, along with smaller improvements, including culverts and
sumps. He further stated he has met with representatives of PSG to request that the work be completed;
however, PSG feels that the company should not be required to construct the necessary ditches and
culverts, nor work on the sumps. He stated the County is currently in possession of a Letter of Credit, in
the amount of$182,208.40, and the amount will be sufficient to complete the remaining improvements.
Ms. Arries stated a letter of response from PSG has been provided for the Board, as well as a letter
requesting a continuance of the matter.
Russell Sanford, Attorney, stated he began representing PSG in June, 2007, and he understands that
members of the Board may believe that PSG is not a good neighbor. He gave a brief description of the
property he personally owns and stated he understands the recipe for success for creating a partnership
with the County. He stated PSG owns 32,000acre feet of water storage at the facility, and the site contains
80 years of aggregate removal, therefore, he recommended the County and PSG aim to create a positive
partnership. He clarified he agreed to provide representation for PSG if the company actively seeks to
create a positive partnership with the County. Mr. Sanford indicated he requested an informal work
session in early October, 2007, to discuss the matters pertaining to the construction activities on County
Minutes, October 31, 2007 2007-3412
Page 2 BC0016
Road 38. He stated he has met with Mr. Scheltinga, and he was notified just last week by Ms. Arries that
a Board meeting, in the place of the requested work session, would occur today. He stated he tried to
assemble the representatives involved with the project to attend the meeting today; however, it was short
notice, and there were many schedule conflicts. He requested a reasonable extension of the matter, in
order to allow representatives of PSG to be present for the discussion, and stated he does not believe an
extension of the matter will adversely affect the County. He further stated the irrigation season recently
ended, therefore, the required improvements may be completed by March, 2008, and he requested a
one-month extension of the matter.
In response to Chair Long, Ms. Arries clarified notice of today's hearing was provided to PSG and
Mr. Sanford on October 16, 2007. She further stated the PSG facility is currently for sale, the closing on
the property is scheduled to take place before the end of the year, and today is the final day of due
diligence for the future buyer to make a decision regarding the purchase of the facility. She stated the
previous attorney for PSG indicated the position of the company is that the release of collateral completed
in January, 2007, resulted in acceptance of the road, therefore, a one-year time frame exists to resolve
all of the issues concerning the road before the County is required to release the remaining collateral. She
clarified the County's position is that the release of collateral in January, 2007, did not constitute a full
release of collateral and full acceptance of the road. She stated she would prefer that the matter not
proceed to litigation, forcing the County to deal with a new property owner regarding issues of
interpretation of the signed agreement. Ms. Arries explained, as indicated in the terms of the agreement,
PSG may not be released from the obligations of the agreement without the consent of the County;
however, if the County is forced to deal with an absentee owner, resolution of the matter is not probable.
She recommended the Board make a decision regarding withdrawal of available funds associated with the
Irrevocable Letter of Credit, and stated a small continuance would be acceptable; however, a continuance
of more than a month is not advised.
Mr. Sanford clarified the closing of the property will not happen for at least two additional weeks, since an
extension has been granted. He further clarified the County will not be forced to litigate with an absentee
owner since the County has the authority to draw funds from the remaining collateral,which Mr. Scheltinga
believes is a sufficient amount to complete the necessary improvements.
Commissioner Jerke indicated he does not support continuation of the matter, and the necessary
improvements are harder to complete during winter weather; therefore, he recommended the Board take
immediate action. He stated completion of the improvements will finalize the project for any potential
purchaser. In response to Chair Long, Mr. Sanford requested a continuance until November 5, 2007, in
order to allow a representative from PSG to be present and provide testimony concerning the matter.
Mr. Scheltinga indicated staff has begun the process of contacting the surrounding property owners to hold
discussions concerning the construction activities, and staff also needs to contact the appropriate
contractors. He reiterated it is necessary for the Department to select contractors to complete the
necessary improvements, and requested the Board move forward today with a decision. In response to
Chair Long, Commissioner Jerke reiterated he does not support a continuation of the matter, and
Commissioner Masden concurred and stated he supports withdrawal of funds from the available collateral
in order to allow the Department of Public Works to move forward with the necessary improvements.
Commissioner Jerke recommended approval of the Resolution to move forward, and suggested officials
from PSG could address the Board during the Public Input portion of the Board meeting on Monday,
November 5, 2007.
Mr. Sanford stated if the Board moves forward today, he will be put in the position of presenting his case
for the record, and he would prefer that a representative of PSG provide presentation of the case. He
Minutes, October 31, 2007 2007-3412
Page 3 BC0016
clarified he disagrees with the conclusions of the Department of Public Works, and he requested an
extension of the matter for five days, which is the only extension PSG will request.
In response to Commissioner Jerke, Bruce Barker, County Attorney, advised the Board to allow
Mr. Sanford the chance to present testimony regarding the matter, and he stated Mr. Sanford desires to
state the position of PSG for the record. In response to Mr. Sanford, Mr. Barker indicated he advises the
Board, and the Board will decide whether the matter is continued to a later date, or will move forward
today.
Upon instruction from the Board to continue, Mr. Scheltinga stated his letter,dated July 2,2007, addresses
the required improvements necessary regarding relocation of the ditch, relocation of an existing pond at
two locations, placement of culverts at two locations,and he confirmed the stop signs have been relocated.
He stated cleaning of several culverts and small soil piles is still necessary, as well as improvements to
the entrance of the Gonzalez property. He clarified the existing concrete ditch is located within the
right-of-way, and is deteriorating, therefore, the ditch needs to be removed from the right-of-way due to
leaking, which leads to standing water on the roadway. He stated standing water on the roadway causes
damage to the subgrade of the road, which weakens the roadbed and causes the road to deteriorate. He
further stated a new ditch will be placed outside of the right-of-way,which will contain the water and direct
it to new culverts. Mr. Scheltinga indicated the necessary ditch improvements were a part of the original
plans and were identified in the documents which required the collateral, and Weld County has never
indicated in writing the improvements did not have to be completed. He stated the completion of the ditch
improvements was not immediately required due to the timing of the irrigation season, and it was decided
the issue would be readdressed in the fall once the ditch was empty. He clarified he was not present for
the discussions between Department staff and PSG representatives; however,each staff member present
has provided a consistent recollection of the conversation. He recommended the improvements originally
agreed upon be completed, including relocation of the ditch. In response to Commissioner Rademacher,
Mr. Scheltinga stated Josh Holbrook, Department of Public Works, has contacted the surrounding property
owners regarding the water rights of the ditch; however, he has not received a response due to the busy
farming season.
Mr. Sanford clarified the farms within the immediate vicinity of the PSG facility are served by pivots, and
are not served by water within the ditch, therefore, relocation of the ditch is unnecessary. He stated the
ditch lies within the deeded right-of-way for County Road 38, and the County should request the property
owner of the ditch to provide relocation. He estimated it would cost approximately$250,000.00 to relocate
the ditch and the existing pond. In response to Commissioner Garcia, Mr. Sanford stated it was indicated
earlier by Mr. Scheltinga that the remaining amount of collateral will be adequate to accomplish the
necessary improvements; however, he does not think the remaining amount of collateral will be adequate.
Kris Pickett, Pickett Engineering, stated the total of $250,000.00 was determined by an estimate of
$190,000.00 to remove and relocate one-half mile of the concrete ditch, and $60,000.00 to relocate the
pond. Mr. Scheltinga stated the previous collateral calculation indicates the concrete ditch improvements
will cost$120,328.00. Mr. Pickett indicated the pond to be relocated was not at the current location when
the road construction project began. Responding to Commissioner Garcia, Mr. Scheltinga stated the
estimate he previously quoted was dated June 24, 2006, and there may have been a change in the price
of concrete since that date; however, he does not believe the change in price has been excessive. He
further stated he does not have knowledge of the water source for the farms; however, he has personally
seen water standing on County Road 38, and in the concrete ditch during an inspection in which
Commissioner Masden was also present. He clarified PSG has not completed all of the required
improvements as listed in the original plan, therefore, the County must complete the remaining
improvements, and the remaining collateral serves as a reasonable estimate for associated costs.
Minutes, October 31, 2007 2007-3412
Page 4 BC0016
In response to Commissioner Garcia, Mr. Barker clarified the Town of Milliken approved the Use by Special
Review Permit since the facility is located within the municipal boundaries. He stated a Condition of
Approval of the permit required that PSG enter into an agreement with Weld County to pave and maintain
County Road 38, from the exit of the facility, east to State Highway 60. Responding to Chair Long,
Mr. Barker indicated the list of required improvements was included as a part of the agreement between
PSG and Weld County, and extensive negotiations were held concerning the improvements listed.
Mr. Pickett indicated the ditch has not been relocated because of the confusion as to whether it is
necessary to permanently relocate the ditch. He stated the construction of the road was completed while
irrigation water was flowing through the ditch, therefore, the ditch could not be moved at that time. He
further stated the decision was made that the side ditches for the road would be incorporated in order to
maintain the irrigation structures,with an evaluation of the necessity of the relocation of the ditch to be held
at a later date. He stated PSG made changes to its plans to reflect the change in requirements, and noted
relocation of the ditch would occur only if required by Weld County. Mr. Pickett indicated there was no
formal follow-through; however,the correspondence did not indicate that the ditch needed to be relocated,
therefore, PSG made the assumption that the location of the ditch within the right-of-way had been deemed
acceptable. He explained half of the length of the ditch is earthen and the adjacent field is fallow,
therefore, he recommends the ditch be removed entirely, if possible. He confirmed he has met with
Mr. Scheltinga on several occasions to discuss the project, and he was not aware at each of the meetings
that the relocation of the ditch would eventually be required.
Mr. Sanford referred to the letter from Pickett Engineering, dated August 9, 2007, and stated an
inconsistency exists regarding the position of the Department of Public Works. He explained every letter,
checklist, and project list submitted by the Department supports the position of PSG,which is that the ditch
was not required to be relocated. He stated the transmitted documents address post-irrigation
requirements, and removal of the ditch and the pond were never mentioned in the documents. He
submitted a memorandum from Tracy Dyer, Lead Construction Inspector, marked Exhibit A, and stated
the memorandum gives a listing of the remaining improvements to be addressed, and the removal of the
ditch and the relocation of the pond are not listed within the memorandum. He further submitted a copy
of the Minutes from the Board meeting on January 17,2007, marked Exhibit B,which explains the reduced
amount of collateral to be retained, and clarified fifteen percent was retained for maintenance obligations,
and five percent was retained for improvements to be completed after the snow melted. He stated five
percent of the overall amount of the project is approximately$45,000.00, therefore, the amount retained
does not correlate with the cost of the ditch and pond removal. He clarified no document, subsequent to
the original plans,which were altered after pre-construction meetings,ever required removal of the ditches;
rather, the language indicated the ditch should be removed, "if necessary."
In response to Chair Long, Mr. Scheltinga indicated the Department has never provided evidence, in
writing, that PSG was released from the original requirement to remove the ditch. He clarified the
requirement of relocation of the ditch was not deemed to be removed from the original plans simply
because it was not mentioned in additional memos. He reiterated he has observed the condition of the
ditch, and he recommends the ditch be removed and relocated.
In response to Commissioner Jerke, Mr. Scheltinga indicated he observed water flowing through the ditch
this past summer, and on one occasion following a thunderstorm, water remained standing on the road
and within the ditch on several subsequent visits to the site. Commissioner Masden clarified the issues
affecting County Road 38 have been discussed, and it was determined the water within the ditch will affect
the integrity of the road. He confirmed that on more than one occasion he has witnessed water within the
ditch, as well as running across the road, due to an incorrect drainage system.
Minutes, October 31, 2007 2007-3412
Page 5 BC0016
Mr. Sanford stated he does not understand why the County is not requiring the property owner to remove
the ditch, since it encroaches within the right-of-way, and he believes it is irresponsible to require the
contractor to complete the work. He further stated he does not understand why the County approved costs
for re-seeding and fine grading, in the amount of $25,000.00, if the ditch was expected to be removed.
He further stated the County approved the extension of the headgates at the intersection of County Roads
25 and 38; however, the lateral is located within the right-of-way. He recommended the Department of
Public Works request the property owner to relocate the ditch, and reiterated he does not believe PSG
should be responsible for the relocation of the farmer's pond.
Mr. Barker clarified irrigation ditches located within road right-of-way are allowed to persist and continue;
however, if it is necessary to remove or relocate a ditch, the County provides the necessary work as a part
of the cost of a road construction project. He further clarified, on a consistent basis, the Board has
acknowledged irrigation structures already located with road right-of-way may continue operation and
persist, with the understanding that the County will provide for relocation if the roadway is expanded. He
stated the County does not have the authority to require the relocation of a ditch by the ditch owner. He
further stated the language"if necessary"or"if required"does not preclude the County from requiring the
ditch work to be completed, and the amount of collateral may be utilized to complete the required
improvements since the continuing obligation to maintain the road exists. He clarified the funds held as
collateral exist to rectify deficiencies within the construction project, and the County is not precluded from
requiring that the necessary improvements be completed.
Commissioner Jerke stated a changing dynamic exists regarding water usage within Weld County, and
he requested the Department of Public Works be directed to determine the desire of the surrounding
property owners regarding placement of the ditch. He stated there may be pivots and irrigation wells
located on the property which did not exist over two years ago, and he would like more information about
the future of the water before PSG is required to pay for improvements which may not be in the best
interest of the surrounding property owners. He stated he supports a continuance of the matter for five
days.
Commissioner Rademacher concurred with Commissioner Jerke,and stated he does not believe the ditch
is useless. He stated the ditch may supply water to the pivots and carry tailwater to the river, therefore,
more information is necessary before a determination regarding relocation of the ditch is made. He
clarified if the ditch contains water during irrigation season, it is legitimately utilized.
Commissioner Masden concurred, and stated staff needs to discuss the use of the ditch with surrounding
property owners in order to determine how to proceed, therefore, he supports a continuance of the matter.
In response to Commissioner Masden, Mr. Scheltinga stated he will make it a priority for staff to obtain
information from the surrounding property owners, and provide the information at a hearing on Monday,
November 5, 2007. In response to Commissioner Rademacher, Mr. Scheltinga indicated staff will need
to speak with two surrounding property owners. Responding to Chair Long, Mr. Barker indicated the
matter may be continued solely for the purpose of discussion regarding the wishes of the surrounding
property owners, or, the Board may elect to allow representatives from PSG to provide additional
information.
Commissioner Garcia indicated he concurs with a continuance of the matter, and stated he is willing to
hear additional statements from representatives of PSG if the statements are non-repetitive. In response
to Commissioner Rademacher, Mr. Scheltinga stated the ponds to be relocated are tailwater ponds,which
happen to be located within the right-of-way, and he does not believe the ditch feeds into the ponds.
There being no further discussion, Commissioner Jerke moved to continue the matter to November 5,
2007, at 9:00 a.m. Seconded by Commissioner Rademacher, the motion carried unanimously.
Minutes, October 31, 2007 2007-3412
Page 6 BC0016
CONSIDER APPOINTMENT AND REAPPOINTMENTS TO EXTENSION ADVISORY COUNCIL:
Commissioner Rademacher moved to appoint Laurie Glendenning,and to reappoint Bill Hedburg and John
Kruse, to the Extension Advisory Council. Seconded by Commissioner Garcia, the motion carried
unanimously.
CONSIDER CANCELLATION OF BOARD OF COUNTY COMMISSIONERS MEETING SCHEDULED FOR
NOVEMBER 28, 2007: Commissioner Masden moved to approve said cancellation. Seconded by
Commissioner Garcia, the motion carried unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the consent
agenda. No Ordinances were approved.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted
by the Acting Clerk to the Board.
There being no further business, this meeting was adjourned at 10:10 a.m.
BOARD OF COUNTY COMMISSIONERS
����' . /y�/ j ;IM,� WCOUNTY, COLORADO
ATTEST: / '(/�G jkavE. Long ChairWeld County Clerk to the Board � t‘
l 4.
oir William H. Jer Pro-Tem
BY:� A'4
Dep Clerk t. the Board i ( i,
Iliam F. Garcia
Robert D. Masd
ademache
Minutes, October 31, 2007 2007-3412
Page 7 BC0016
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