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Home My WebLink About20043152.tiff RESOLUTION RE: APPROVE MEMORANDUM OF UNDERSTANDING FOR ANNEXATION OF A PORTION OF WELD COUNTY ROAD 33 TO THE CITY OF EVANS AND AUTHORIZE CHAIR TO SIGN 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 a Memorandum of Understanding for Annexation of a Portion of Weld County Road 33 to the City of Evans between the County of Weld, State of Colorado,by and through the Board of County Commissioners of Weld County,and the City of Evans, commencing upon full execution of said memorandum of understanding, with further terms and conditions being as stated in said memorandum of understanding, and WHEREAS, after review, the Board deems it advisable to approve said memorandum of understanding, 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 Memorandum of Understanding for Annexation of a Portion of Weld County Road 33 to the City of Evans between the County of Weld,State of Colorado, by and through the Board of County Commissioners of Weld County, and the City of Evans be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said memorandum of understanding. The above and foregoing Resolution was,on motion duly made and seconded,adopted by the following vote on the 1st day of November, A.D., 2004. BOARD OF COUNTY COMMISSIONERS W COUNTY, COL ADO �� 4_ I� J Ns • - Robert D. Masden, Chair 1 I�! ,fir Clerk to the Board Nr °'.' 1�� // / William H. J ke, Pro-Tem /� • •4% ( • ty Clerk to the Board le M. J. ile DASTO • David . Long 7 ounty A rney Glenn Vaad Date of signature: Y 2004-3152 BC0034 F(" , ,J-c,t; elV197O3 //-,72,3 -O`7 MEMORANDUM OF UNDERSTANDING This MEMORANDUM OF UNDERSTANDING ("MOU") is made this day of , 2004, between the City of Evans, Colorado ("the City"), whose address is 1100 37th Street, Evans, Colorado 80620, and the County of Weld, State of Colorado ("the County"), whose address is P.O. Box 758, 915 10th Street, Greeley, Colorado 80632. WITNESSETH: WHEREAS, the City has adopted an ordinance on first reading and will consider the second reading of said ordinance on November 2, 2004, to annex, through four consecutive annexations, a portion of Weld County Road ("WCR") 33 in the SW 'A of Section 2 and the SE /< of Section 3, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado, hereinafter referred to as the "WCR 33 Annexations," and WHEREAS, the WCR 33 Annexations are in conjunction with the annexation known as the GWE Annexation, and WHEREAS, said GWE Annexation will include property for which there is a proposal for development of an ethanol production facility, which will include the need for a haul route on roads which are within the jurisdictions of both parties, and WHEREAS, the parties desire to procure with the operator of the ethanol production facility a Long-Term Road Maintenance and Improvements Agreement for maintenance and improvements on WCR 33 and any other roads within the two jurisdictions which will be a part of the operators' haul route, and WHEREAS, the parties desire to enter into this MOU in order to define their respective roles and responsibilities regarding the procurement and administration of said Long-Term Road Maintenance and Improvements Agreement, and to agree as to additional annexations of WCR 33 by the City to allow for continuity of jurisdiction over said road. NOW, THEREFORE, the parties agree and understand as follows: 1. Procurement of Agreement: The City shall require, prior to issuance of a building permit for the ethanol production facility proposed for the area known as GWE Annexation, the operator and landowner to enter into a Long-Term Road Maintenance and Improvements Agreement, substantially in the form set forth in the attached Exhibit "A," which addresses the issues of designation of haul routes and responsibilities of enforcement, improvements to the haul route (including, without limitation, improvements to the road base and surface, improvement which may be required by CDOT, and any necessary safety improvements), and maintenance. The Agreement shall include both the County and the City as parties. The City shall consult with the County regarding the specifics that should be addressed in the Agreement. 1 2004-3152 2. Administration of Agreement: Once the Agreement is procured, the County and the City shall coordinate which entity shall take the lead in administering the Agreement. The parties will also continue to discuss for agreement other haul routes which may be necessary for other industrial uses in the area. 3. Annexation of a Portion of WCR 33 between the GWE Annexation and WCR 46: The City agrees to prepare an annexation petition for the County to sign for the purpose of annexing a portion of WCR 33 between the GWE Annexation and WCR 46 located in the S1/2 of Sections 10 and 11, Township 4 North, Range 66 West of the 6'h P.M., Weld County, Colorado. Said annexation(s) would be intended to allow for continuity of jurisdiction by the City over said stretch of WCR 33 affected by the ethanol production facility. IN WITNESS WHEREOF, the parties have executed this Memorandum of �ws• ding as of the date first written above. J '1 / 'Iii . //, BOARD OF COUNTY COMMISSIONERS OF �Isci ( ;* � ( WELD COUNTY, COLORADO } .t ; BOARD U-C)ls & vL - tIeputy Clerk to the B 4.OF•eie Robert D. Masden, Chair a-41-c' 4 ATTEST: • CI EVANS, COLORADO = SEALS 4. d,"2uji By: Kim Betz, City erk Harol Weisberg, Mayor 2 EXHIBIT A COUNTY OF WELD, STATE OF COLORADO AND THE CITY OF EVANS, COLORADO LONG-TERM ROAD MAINTENANCE AND IMPROVEMENTS AGREEMENT THIS AGREEMENT is made and entered into this day of , 2004, by and between the COUNTY OF WELD, a political subdivision of the STATE OF COLORADO, hereinafter called"COUNTY;"the CITY OF EVANS, a municipal corporation of the STATE OF COLORADO, hereinafter called"CITY;" and GREAT WESTERN ETHANOL, LLC, hereinafter called "OPERATOR." WHEREAS, OPERATOR has proposed development of an ethanol production facility on approximately 222 acres located in the SW 1/4 of Section 2 and the SE ''A of Section 3, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado (referred to herein collectively as "ethanol production facility"), and WHEREAS, the ethanol production facility will generate an increase in heavy traffic, and WHEREAS,the existing COUNTY and CITY roads that serve the ethanol production facility will require increased maintenance and improvement due to the increase in heavy truck traffic associated with the ethanol production facility, and WHEREAS, COUNTY, CITY and OPERATOR have reviewed various maintenance and improvements proposals,and all parties agree that such maintenance and improvements will enhance the accessibility and safety of the roads that serve said ethanol production facility. NOW,THEREFORE,in consideration of the mutual covenants and conditions hereinafter set forth, COUNTY, CITY and OPERATOR mutually agree as follows: 1. OPERATOR shall provide, for the duration of any material haulage from OPERATOR's ethanol production facility, the following: Haul Route(s) and Enforcement A. The westbound route is defined as follows: OPERATOR shall be required to enforce compliance with the haul route of all truck operators entering or exiting the ethanol production facility. B. The eastbound route is defined as follows: OPERATOR shall be required to enforce compliance with the haul route of all truck operators entering or exiting the ethanol production facility. Improvements C. OPERATOR shall: D. OPERATOR shall: E. OPERATOR shall provide testing services and inspection for the construction of the improvements. COUNTY and CITY shall only provide oversight. A registered professional engineer, registered in the State of Colorado, shall provide the COUNTY and CITY with a letter that certifies the proper installation of the improvements. F. Payment for said improvements shall be as follows: G. Safety improvements shall include: H. Additional safety improvements shall include: I. Engineering design and construction plans shall be the responsibility of OPERATOR. OPERATOR shall provide COUNTY and CITY with construction drawings that detail the required improvements. The plans shall consist of, at a minimum, intersection layout and grading, plan and profiles where appropriate, cross sections, signing and striping, structure plans and property ownership. These plans will require approval by representatives of both COUNTY and CITY. A registered professional engineer registered in the State of Colorado must prepare the construction plans. The plans,when reviewed and approved,will constitute a section of this agreement. They will be attached hereto and referenced as Exhibit"A." J. OPERATOR shall warrant and guarantee all improvements for a period of at least one year from completion. All roadway and safety improvements shall be completed prior to the commencement of hauling operations. - 2 - Maintenance K. OPERATOR agrees to excavate, repair, or patch any damage on said road that has been created by heavy truck hauling from OPERATOR's ethanol production facility. The type and method of repair will be determined by COUNTY and CITY representatives. The repairs shall commence within thirty(30) days of receipt of our written notice. N There will be an annual inspection in the spring of the roadways to determine actual conditions and what work is to be performed that summer if any repairs are needed. O. At any time in the future,if road damage has increased beyond the point that repair of damage can reasonably restore the road, OPERATOR will pay a proportionate cost share based on truck traffic using the haul route in the reconstruction of those parts of said road. CDOT Improvements P. OPERATOR shall address any and all access issues raised by the Colorado Department of Transportation (CDOT), including the following: 2. Prior to the start of ethanol production, COUNTY, CITY and OPERATOR will document the existing condition of the roadways. This effort will ensure that OPERATOR will not be held responsible for existing roadway damage, if any. 3. Failure of any party to perform any of its respective obligations hereunder by reason of acts of God, strike, or acts of any governmental agency or authority having jurisdiction over matters set forth herein shall excuse timely performance of such obligations, but shall not excuse the performance of such obligations as soon as reasonably practical. The parties may,however,mutually consent to excuse a party from performing any obligation, in whole or in part, upon a showing that performance has been rendered impracticable by reason of FORCE MAJEURE. 4. This Agreement may not be assigned in whole or in part by OPERATOR without the written consent of the COUNTY and CITY. Such consent will not to be reasonably withheld, conditioned, or delayed. 5. If any clause or provision of this Agreement is illegal,invalid,or unenforceable,then it is the intention of the parties that the remainder of this Agreement shall not be affected. - 3 - 6. Should OPERATOR sell its operation, cease operating, file bankruptcy, or in any way release ownership and responsibility of the permitted property,this Agreement as set forth herein, shall be terminated. If the aforementioned release should occur, OPERATOR shall give a minimum notice of ninety(90) days to the COUNTY and CITY before the date of termination. If the aforementioned release should occur,the COUNTY and CITY shall have the option of immediately terminating this Agreement. 7. All construction and materials controls for a project will be in accordance with the current Standard Specifications for Road and Bridge Construction,as supplemented or revised, provided by the Colorado Department of Transportation. During construction, signage shall be posted in accordance with the most current Uniform Manual on Traffic Control Devices. 8. It is expressly understood and agreed that 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 actions whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. 9. Indemnification:To the extent authorized by law,OPERATOR agrees to indemnify, save, and hold the COUNTY and CITY harmless from and against any and all claims, damages, losses, and judgments, which may be suffered or incurred by COUNTY and CITY as a consequence of any breach by OPERATOR of its obligations and duties set forth in this Agreement on those portions of the haul route described in this Agreement. In the event that any dispute shall arise under this Agreement, the prevailing party in such dispute shall be entitled, in addition to any other relief to which such party may be granted, to recover its reasonable attorney's fees and court costs incurred in connection with the resolution of such dispute. 10. By entering into this Agreement, the parties do not intend, either expressly or implicitly,to create a joint venture or partnership. Except as provided herein,neither party shall have the right or authority to act for, or on behalf of, or to enter into any obligations which are binding on the other party to this Agreement. 11. All notices to be given under this Agreement shall be in writing and delivered in person, or mailed by certified or registered U.S. Mail, or sent by a nationally recognized overnight delivery service, to the party to receive such notice at the following addresses: -4 - COUNTY: Weld County Board of Commissioners P.O. Box 758 Greeley, CO 80632 CITY: City of Evans, City Manager 1100 37`h Street Evans, CO 80620 OPERATOR: Great Western Ethanol, LLC Address: All notices shall be effective upon receipt by the party to receive such notice, or by the third day following deposit of said notice in U.S.Mail,or the first day following deposit of acknowledgment of refusal of delivery of said notice. IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement the day and year first-above written. OPERATOR: ATTEST: GREAT WESTERN ETHANOL, LLC By: Title: ATTEST: COUNTY OF WELD, COLORADO CLERK TO THE BOARD By: By: Deputy Clerk to the Board Robert D.Masden,Chair,Board of County Commissioners of Weld County ATTEST: CITY OF EVANS, COLORADO By: By: Kim Betz, City Clerk Harold Weisberg, Mayor - 5 - 02cCCY- 3/S".)- Hello