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Home My WebLink About20220763.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: BOCC Agenda Item - Approve Improvements and Road Maintenance Agreement for: Asphalt Specialties Company, Inc — AP21-00767 DEPARTMENT: Planning Services DATE: February 22, 2022 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the problem/issue: The Department of Planning Services received a request from the applicant, Asphalt Specialties Company, Inc, requesting that the Board of County Commissioners consider approving the Improvements and Road Maintenance Agreement for (AP21-00767). No collateral is required with this agreement. Weld County Planning Services, Public Works, and the County Attorney's Office have reviewed the above mentioned signed original document and observed the following: • All Public Works related items, of the "Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements", are found to be acceptable. This Agreement complies with the terms of the Access Permit, as issued by the Department of Planning Services. What options exist for the Board? (include consequences, impacts, costs, etc. of options): 1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda. 2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda. Recommendation: Option 1. The Departments of Planning Services, Public Works, and the County Attorney's Office are recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements for AP21.00767, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Schedule Recommendation Work Session Other/Comments: Perry L. Buck Mike Freeman, Pro-Tem Scott K. James, Chair Steve Moreno Lori Seine ed% PL(DA/ rx) 3/141.� _ -ate �/�/�� 3 9 2022-0763 ��io77 IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Asphalt Specialties Company, (Inc — AP21-00767 THIS AGREEMENT is made this .Q71‘day of / ,ed_202yZ, b and between Asphalt Specialties Company, Inc., a corporation organized under the laws of the State of C-oLOIVo , whose address is 10100 Dallas Street, Henderson, Colorado 80640, hereinafter referred to as "Property Owner," authorized to do business in the State of Colorado, and the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter referred to as "County." WITNES SETH: WHEREAS, Property Owner is the owner of the following described property in the County of Weld, Colorado: Lot B of Recorded Exemption, RECX17-0197; Being a part of the W1/2 SW1/4 /4 of Section 36, Township 5 North, Range 66 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner has received the Department of Planning Services conditional approval of AP21-00767, and WHEREAS, Property Owner acknowledges that the fmal approval of AP21-00767 is conditional upon Property Owner's understanding of the off -site improvements and road maintenance described in this Agreement and depicted in the following incorporated exhibits: Exhibit A — Future Improvements Costs of Construction, to be attached if/when triggered, pursuant to Part I, B.3.0, below Exhibit B — Future Improvements Construction Schedule, to be attached if/when triggered, pursuant to Part I, B.4.0, below Exhibit C — Construction Plans, to be attached if/when triggered, pursuant to Part I, A., below ▪ Exhibit D — Access Permit, and WHEREAS, Property Owner acknowledges that pursuant to the provisions of Weld County Code, 81 the failure to commence construction of the access improvements within one (1) year of the approval and issuance of AP21-00767 may result in the rescinding of AP21-00767, upon consideration and order of the o� Department of Planning Services, and a ' WHEREAS, the parties agree that the Property Owner shall provide collateral for off -site m a v improvements, if/when triggered, as required by this Agreement. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants me contained herein, the parties hereto promise, covenant, and agree as follows: ova m PART I: SITE SPECIFIC PROVISIONS 0. a) t -. A. Off -Site Improvements (as required by the BOCC): The Property Owner shall be responsible N p for the construction of certain off -site safety improvements as identified, which may include, but are not N N0 co ▪ m Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 o� !� " 0163 Page 1 of 12 p�l o c limited to: construction of adequate turning radii of sixty-five (65) feet at the main entrances and exits which extend into County road Rights -of -Way (ROW) connecting to the County road system, and off -site drainage and signage installations, as indicated on the accepted Exhibit D and future Exhibit C, as required. On -Site improvements that create more run-off than the historical amount may require off -site drainage improvements to roads and ROW. Any approved access point(s) improvements will include standard County approved tracking control and may include a double cattle guard set (one right after the other), placed back-to-back across the entire width of the access, to ensure a complete revolution of the truck tires in order minimize the tracking of mud and debris onto the adjacent County Road. B. Future Off -Site Improvements: 1.0 Traffic Triggers. When the traffic associated with the Access Permit reaches certain safety thresholds as set forth in this agreement, the Property Owner shall design, and construct required road improvements based on the amount of traffic being generated by the site. The Property Owner's development does not currently meet the traffic safety triggers requiring the improvements specified below; however, off -site, or phased improvements may be warranted in the future. 1.1 Property Owner shall be required to design, obtain right-of-way, relocate utilities, and construct said auxiliary lanes into their site if/when all traffic to/from the Property meets the following traffic triggers: • Property Owner shall design and construct a left deceleration/turn lane on CR 394 whenever traffic exceeds 10 vehicles per hour (VPH) turning left into the Property for an average daily peak hour. • Property Owner shall design and construct a right deceleration/tum lane on CR 394 whenever traffic exceeds 25 VPH turning right into the Property for an average daily peak hour. • Property Owner shall design and construct a right acceleration lane on CR 394 whenever traffic exceeds 50 VPH turning right out of the Property for an average daily peak hour. • Property Owner shall design and construct a left acceleration lane on CR 394 whenever traffic exceeds 50 VPH turning left out of the Property for an average daily peak hour of CR 394. 2.0 Property Owner's Responsibilities regarding Future Triggers. Property Owner is solely responsible for the cost and construction of required improvements. These responsibilities may include but are not limited to the following, as applicable: design, surveys, utility locates, acquisition of ROW, dedication of ROW, ROW and Access Permits and fees, coordination with oil and gas operators and facilities and affected irrigation facilities and utilities, traffic control, and project safety during construction. Property Owner shall obey all applicable regulations issued by OSHA, CDOT, CDPHE, and other federal, State, or County regulatory agencies. 3.0 Cost of Construction Exhibit. When any trigger is met, the Property Owner shall submit Exhibit A within six (6) months of being notified regarding the need for the triggered improvements, indicating the cost of construction estimates (engineer's estimate) to detail the costs used in determining the collateral requirement for the development. Construction costs must be obtained through a registered Colorado Engineer. A registered Colorado Engineer must sign and stamp the construction cost exhibit for sites that have project collateral. New or additional collateral may be required for the triggered improvements. If required, collateral shall be submitted at the same time as Exhibit A. Exhibit A shall be attached to this Agreement and incorporated herein once approved by the County. Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 2 of 12 4.0 Construction Schedule Exhibit. When any trigger is met, the Property Owner shall submit Exhibit B within six (6) months of being notified regarding the need for the triggered improvements, indicating the construction schedule, and including completion date for the improvements. Property owner shall not commence construction of improvements prior to approval of the Construction Plans and receipt of the appropriate Grading Permit, Access Permit, and/or ROW Permit. Property Owner shall complete all improvements in accordance with the construction schedule exhibit. The construction of the triggered improvements shall be completed within the specified timeframe, which may not exceed three (3) years from the date the trigger is first met and shall be completed as follows: Year 1 design deadline; Year 2 ROW/Utilities; Year 3 Construction. Property Owner shall collateralize 100% of the cost of the construction improvements, including design, right-of-way, and utility relocation cost within six months of being notified of meeting the triggers. Exhibit B shall be attached to this Agreement and incorporated herein once approved by the County. 5.0 Collateral. Collateral for any additional improvements required by the triggers may be required by the Board of County Commissioners, hereinafter referred to as the BOCC. Collateral is accepted and released by the BOCC pursuant to the Weld County Code. Additional information about collateral is outlined in Part II.B of this Agreement. 6.0 As -Built Plans. "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or once the Property Owner has completed improvements as described in Part II.B, Subsection 3.2.3, of this Agreement. Property Owner shall also provide an electronic copy of the as -built drawings. The as -built drawings shall be stamped, signed, and dated by a licensed and registered Professional Land Surveyor or Professional Engineer. C. Haul Routes: The Property Owner shall be fmancially responsible for its proportional share of the associated costs for maintaining and/or improving designated haul/travel routes. 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property: 1) 35% of traffic shall utilize CR 35 between CR 394 and Highway 85, and 2) 65% of traffic shall utilize CR 394 between CR 35 and Highway 85. 2.0 Haul trucks shall enter and exit the site at the approved access on CR 394 and remain on paved roadways for further dispersal. Any County roads used by AP21-00767 traffic may become part of the established haul/travel routes. 3.0 Haul Route Intersections. AP21-00767 Haul Routes include four (4) intersections, two which are a part of the US 85 Planning and Environmental Linkages (PEL) Study and US 85 Access Control Plan, including County Road 394 at US Highway 85 and County Road 46 at US Highway 85. 4.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle and axle configurations unless overweight permits have been applied for and granted. 5.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the above - mentioned haul/travel route for a limited period (six months or less), the Weld County Department of Planning Services may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved County roads whenever possible. A deviation from the established haul/travel route lasting more than six (6) months, or requests for one (1) or more deviations within a twelve (12) month period shall authorize the County to change the haul/travel routes designated herein and provide notice to the Property Owner. Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 3 of 12 6.0 Haul Route Signage. Property Owner shall install travel route signs, if applicable, as per Manual of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility and which clearly depict County approved travel routes. 7.0 No Deviation from Permitted Haul Routes. Except as authorized by the BOCC pursuant to this Agreement, no use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. D. Maintenance Requirements: 1.0 Off -site recurring maintenance, if applicable, as required: 2.0 Repair. Property Owner shall be fmancially responsible for its proportional share of excavation, patching, and pavement repair on designated haul/travel routes. The amount and extent of repair and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. 3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel route by project traffic that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify Property Owner of such Significant Damage. Property Owner shall identify the repair required and shall consult with County on the extent, type, timing, materials, and quality of repair (i.e., temporary versus permanent) within twenty-four (24) hours after receipt of such notice and shall commence such repair within forty-eight (48) hours after receipt of such notice. If Property Owner identifies Significant Damage prior to receiving notice thereof from County, Property Owner may commence repair of such Significant Damage and shall concurrently notify County of the extent, type, timing, materials, and quality of repair (i.e., temporary versus permanent). os a.L. cz 3 o� '0Om= -3=num o -3— U. 0 U et: ea Ot ari• aim mU NN NNo IrI�Y� °3`415M Wet, 4.0 Repair of Road: On or before December 31, of the calendar year in which County staff has determined through site analysis and/or pavement testing that a particular haul/travel route road portion will require paving measures in order to protect the public health, safety, and welfare, and the County has budgeted sufficient funds for the following calendar year to pay its share of the Off -Site Improvement/Repair Costs, County shall notify Property Owner in writing that the Off -Site Improvements/Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of the need to undertake the road maintenance repairs and/or improvements, Property Owner shall submit Off -Site Construction Plans and Cost Estimates to County for review. Property Owner shall have sole responsibility for the completion of the repairs and/or improvements on or before December 15, of the year following County's notice of the need for repairs. 4.1 In County's sole discretion, County may undertake the repairs and/or improvements. Property Owner's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in this Agreement. Property Owner will be invoiced accordingly for those proportional share costs. 5.0 Calculation of Property Owner's Proportional Share of Costs. The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportional share of costs of maintenance, repair, or improvements to Property Owner's designated haul/travel routes. Prior to County's fmal determination and assessment, County shall provide Property Owner with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Owner's input prior to making a fmal determination and assessment. The County shall have sole responsibility for determination of Property Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 4 of 12 Owner's proportional share of costs. Property Owner agrees to pay such proportional share of costs within 30 days of receiving an invoice from County. 6.0 Annual Road Inspection. County may 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 for the haul routes designated in this Agreement. As a result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall further determine what road repair/improvement/maintenance work is to be performed during that construction season. Notification to the Property Owner of the required roadway repairs will be given as soon as the data becomes available. 7.0 Notification. The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportionate share of costs of maintenance, repair, or improvements to Property Owner's designated haul/travel routes. Prior to County's fmal determination and assessment, County shall provide Property Owner with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Owner's input prior to making a final determination and assessment. PART H: GENERAL PROVISIONS A. Engineering and Construction Requirements: 1.0 Engineering Services. Property Owner shall furnish to County, at its own expense, all engineering services in connection with the design and construction of the off -site improvements and all on -site drainage -related structures if required by any Municipal Separate Storm Sewer System (MS4) permit, as identified on the accepted Construction Plans and according to the construction schedule set forth in the construction schedule exhibits. 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. 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. MI 2.0 Rights -of -Way and Easements. Before commencing the construction of any off -site improvements herein agreed upon for public ROW or easements, Property Owner shall acquire, at its sole expense, good and sufficient ROW and easements made necessary for the improvements. The County will not exercise eminent domain on behalf of Property Owner. All such ROW and easements for the construction of roads to be accepted by the County shall be conveyed to the County on County -approved forms and the documents of conveyance shall be furnished to the County for acceptance with express written authority of the BOCC and recording. 3.0 Construction. Property Owner shall furnish and install, at its own expense, the improvements (and any drainage -related structures required by any MS4 permit) identified on the accepted Exhibits and shall be solely responsible for the costs listed on the cost of construction exhibits, with the improvements being completed also in accordance with the schedule set forth in the construction schedule exhibits. The BOCC, at its option, may grant an extension of the time of completion set forth in construction schedule exhibits stated herein upon application by the Property Owner. Said construction shall be in strict conformance to the plans and drawings accepted by the County and the specifications adopted by the County. 4.0 Testing. Property Owner shall employ, at its own expense, a qualified testing company previously approved by the County to perform all testing of materials or construction; and shall furnish copies of test results to the County. If County discovers inconsistencies in the testing results, Property Owner shall Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 5 of 12 employ at its expense a third -party qualified testing company approved by County. Such third party shall furnish the certified results of all such testing to the County. At all times during said construction, the County shall have the right to test and inspect material and work, or to require testing and inspection of material and work at Property Owner's expense. Any material or work not conforming to the approved plans and specifications, including but not limited to damages to property adjacent to the construction plan area shall be repaired, removed, or replaced to the satisfaction of the County at the expense of Property Owner. 5.0 Construction Standards. Design and construction of all off -site improvements shall conform to the current version of CDOT' s "Standard Specifications for Road and Bridge Construction" and the Weld County Engineering and Construction Criteria. 6.0 Traffic Control. Prior to any construction in County and/or State ROW, and as a condition of issuance of any ROW or Access Permit, the Property Owner shall submit a traffic control plan for County review. During construction, appropriate safety signage shall be posted in accordance with the then -current version of the Manual of Uniform Traffic Control Devices. B. Collateral: 1.0 General Requirements for Collateral. Property Owner shall provide to County the necessary collateral to guarantee all of Property Owner's obligations under this Agreement: (1) Project Collateral is required for completion of off -site improvements, as described in this Agreement; (2) Warranty Collateral is required for all off -site improvements during the two-year warranty period. Collateral acceptance and release are governed by the Weld County Code. 1.1 Project Collateral shall be submitted to guarantee completion of off -site improvements identified in the Exhibits. Project Collateral must be submitted in an amount equal to 100% of the value of the improvements, as calculated in the cost of construction exhibits. Project Collateral must be submitted at the time of execution of the Agreement, unless otherwise directed by the Board of County Commissioners. In the event that Property Owner fails to adequately complete the required improvements, County may, in its sole discretion, access Project Collateral for the purpose of completing such improvements. It may be necessary to provide additional collateral in the event the cost estimate is older than three (3) years. NO WORK SHALL COMMENCE UNTIL PROJECT COLLATERAL HAS BEEN SUBMITTED AND ACCEPTED BY THE COUNTY. a 1.2 Warranty Collateral shall be submitted and held by the County until release after the two- year warranty period following the County's initial approval of the improvements. Warranty Collateral shall be in an amount equal to 15% of Project Collateral. In the event that Property Owner fails to adequately complete or repair improvements during the warranty period, County may, in its sole discretion, access Warranty Collateral for the purpose of completing such improvements. 2.0 Form of Collateral. Collateral may be in the form of a letter of credit, a surety bond, or a cash deposit, subject to the requirements and restrictions of Section 2-3-30 of the Weld County Code, as that section may be amended from time to time. 3.0 Release of Collateral. Collateral shall be released in accordance with Section 2-3-30 of the Weld County Code. For collateral release, County personal conducts inspections for on -site and off -site improvements. 3.1 Timing of Release. Project Collateral may be released upon completion of all improvements required by the Exhibits after initial approval by the County. Warranty Collateral Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 6 of 12 shall be withheld by County at the time of release of Project Collateral or may be submitted separately by Property Owner. Warranty Collateral may be released upon the approval of the County at the end of the two-year warranty period. 3.2 Request for Release of Collateral. Prior to release of collateral by Weld County for the entire project or for a portion of the project, the Property Owner must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of Substantial Compliance shall state that the project or a portion of the project has been completed in substantial compliance with accepted plans and specifications documenting the following: 3.2.1 The Property Owner's Engineer or his representative has made regular on -site inspections during the course of construction and the construction plans utilized are the same as those accepted by Weld County. 3.2.2 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. 3.2.3 "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or at such time as the Property Owner has completed improvements as shown on the Exhibit C and/or Exhibit D and shall be stamped and approved by an Engineer registered in the State of Colorado, if an Engineer was initially required for the project. The Property Owner's Engineer shall certify that the project "as -built" is in substantial compliance with the plans and specifications as approved, or that any material deviations have received prior written acceptance from a Development Review Engineer. 3.3 County's Response to Request for Release of Collateral. Following a written request for release of collateral, County personnel will inspect the improvements as provided in this Agreement. Upon approval, the Board of County Commissioners may release said collateral. C. Acceptance of Improvements: 1.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, Property Owner shall contact the Weld County Development Review and request an inspection of such improvements. Upon request, County personnel will initiate the inspection, approval, and acceptance process. 2.0 Inspection, Approval, and Acceptance Process: • .z 2.1 Upon completion of construction of all off -site improvements as described in the • ja-21 Construction Plans, Property Owner shall submit to the Weld County Department of Planning ° LL 3 Se Services a Statement of Substantial Compliance by Property Owner's Engineer along with "as - built" drawings as required in subsection B.3.2.3, above, and shall request County inspection of the okr Off -Site Improvements. County personnel shall then inspect the improvements. If the County m 6-6a determines the improvements were not constructed in accordance with the Construction Plans, the GU 6a County shall direct the Property Owner to correct the deficiencies. If the County determines the " improvements were constructed in accordance with the Construction Plans, the County shall m a� initially approve the Off -Site Improvements. NNO UM. Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 7 of 12 2.2 Two -Year Warranty Period. Such initial approval begins the two-year warranty period. Upon completion of the two-year warranty period, County Public personnel shall, upon request by the Property Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. County personnel shall re -inspect the improvements after notification from the Property Owner that said deficiencies have been corrected. If the County personnel fmds that the improvements are constructed according to County standards, he or she shall approve the improvements. Such fmal approval shall authorize the Property Owner to request the Board of County Commissioners to release the Warranty Collateral. 2.3 Placement of Improvements into Service Prior to County Approval. If requested by the Property Owner and agreed by the County, portions of the improvements may be placed in service when completed according to the schedule shown on the construction schedule exhibit, but such use and operation shall not alone constitute an approval or acceptance of said portions of the improvements. County may, at its option, issue building permits for construction for which the improvements detailed herein have been started but not completed according to the schedule shown on the construction schedule exhibit and may continue to issue building permits so long as the progress of work on the improvements is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Property Owner. D. Permits: Property Owner is required to apply for and receive all permits required by the County or any other applicable local, State, or federal permit, including but not limited to: 1.0 Access Permits. Property Owner shall not use any access onto any County Road unless and until an access permit has been issued by the Department of Planning Services. Planning Services may condition the issuance of an updated access permit on the amendment of this Agreement if the updated access permit authorizes the use of an additional access point, or if there is a change in use of the current access point, as permitted by Article XIV of Chapter 8 of the Weld County Code. 2.0 Right -of -Way (ROW) Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work occurring within County ROW requires a ROW permit issued by the Department of Public Works. No work shall occur without said ROW permit. U S mmr Acm 3 ohoLow co�m— a▪ s I Q. ▪ ! Goat N a.- N▪ No (5) Go Go yr 3.0 Transport Permits. Per Article XV of Chapter 8 of the Weld County Code, a Weld County Transport Permit is required for Extra -legal vehicles using Weld County roadways to ensure the operation and movement of Extra -legal Vehicles and Loads occurs in a safe and efficient manner. E. Enforcement and Remedies: 1.0 Violation of Terms of Agreement. If in County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify Property Owner of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which County believes constitute the violation. Property Owner shall have fifteen (15) days within which to either cure the violation or demonstrate compliance. If, after fifteen (15) days have elapsed, County believes in good faith that the violation is continuing, County may consider Property Owner to be in breach of this Agreement. 2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Owner has violated the terms of this Agreement, and has failed to correct said violation, County may exercise any or all of the following remedies, or any other remedy available in law or equity. Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 8 of 12 2.1 Access and Use of Collateral. County may access and use collateral to address the issues specific to the violation. For example, the County may access and use Project Collateral in order to complete improvements as required by the Construction Plans, when such improvements have not been completed in accordance with the Construction Schedule. 2.2. Withholding Permits. County may "lock" any or all lots within the Property, which precludes the continued issuance of building permits, zoning permits, septic permits, or any other permit issued by any department of the County. 2.3 Court Action. County may seek relief in law or equity by filing an action in the Weld District Court or Federal District Court for the District of Colorado, except that no such civil action or order shall be necessary to access collateral for the purpose of completing improvements as described above. 2.4 Revocation of Permit. Property Owner acknowledges that failure to comply with the terms of this Agreement constitutes cause to revoke the Access Permit, and County may exercise this option in its sole discretion by proceeding with revocation under the then current provisions of the Weld County Code. 3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following events: 3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of the underlying land use approval under Weld County Code. However, County may still exercise all necessary activities under this Agreement that the County determines necessary to protect the health, safety, and welfare of the residents of Weld County. 4 r TM Y F. General Provisions: °. 0" at 1.0 Successors and Assigns. Nq� ^NO Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 9 of 12 3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Property Owner's complete cessation of all activities permitted by the Access Permit including any clean up or restoration required. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release/vacation constitute a Termination. Unless informed in writing by the Property Owner of cessation of activities, and verified by the County, cessation shall only be presumed if the County determines that the operation has been inactive for three (3) years. Property Owner shall not be entitled to a release of Project or Warranty Collateral unless and until the improvements required by this Agreement are completed. 3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's execution of a new Improvements Agreement with a new property owner or operator who has purchased the Property or has assumed the operation of the business permitted as and intends to make use of the rights and privileges available to it. o -0rm 3.4 Revocation of Access Permit. This Agreement shall terminate following County's N mal •amm_ of Property Owner's Access Permit except that the Property Owner shall only be I -IF released from this Agreement after the successful completion of all improvements required under LL o this Agreement, which may be completed by County after accessing Property Owner's collateral if 01 cc: Property Owner fails to complete such improvements. 13 1.1 Property Owner may not delegate, transfer, or assign this Agreement in whole or in part, without the prior express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. Consent to a delegation or an assignment will not be unreasonably withheld by County. In such case, Property Owner's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with the successor owner of the property. 1.2 County's rights and obligations under this Agreement shall automatically be delegated, transferred, or assigned to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement. 2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 3.0 Governmental Immunity. No term or condition of this contract 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. 4.0 Amendment or Modification. Any amendments or modifications to this agreement shall be in writing and signed by both parties. 5.0 No Third -Party Beneficiary. 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 in this Agreement shall give or allow any claim or right of action 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 an incidental beneficiary only. 6.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado, or its designee. 7.0 Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. In the event of a legal dispute between the parties, the parties agree that the Weld County District Court or Federal District Court for the District of Colorado shall have exclusive jurisdiction to resolve said dispute. 8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Owner, concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney fees and/or legal costs incurred by or on its own behalf. 9.0 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 the design and construction of improvements, and pay any and all judgments rendered against the County on account of any such suit, action or claim, and notwithstanding section 7.0 above, 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 Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 10 of 12 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. 10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra- judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized, and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. If requested by the County, Property Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement within five (5) days of receiving such request. 12.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement, understands it, and agrees to be bound by its terms. Both parties further agree that this Agreement, with the attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. 13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential conflict between any term in this Agreement and the Resolution of the Board of County Commissioners approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the event of a discrepancy between this agreement and the Weld County Code in effect at the time of the agreement, the terms of the Weld County Code shall control. 4809375 Pages: 11 of 12 03/11/2022 10:03 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County , CO •1111 F11CI 11111 Asphalt Specialties Company, Inc. - AP21-00767 — IA21-0009 Page 11of12 PROPERTY OWNER: Asphalt Specialties Company, Inc. By: Name: Title: banteA .V\--<>"k- ?re-4. AtAk- STATE OF COLORADO County of Weld Adam s Date ss. 1.66 voR? -y► The foregoing instrument was acknowledged before me this 1 yr day of Ft.r.,cr 202Z,by 1Dahie.-1 W. )4 rF WITNESS my hand and official seal. ary Public JAN NELSON NOTARY PUBLIC STATE OF COLORADO NOTARY ID 19994030527 My Commission Expires April 29, 2024 WELD CO -UNITY: C� �_ ' ATTEST: �/ �• ` ( 'ti BOARD OF COUNTY COMMISSIONERS Weld .un y Clerk to the BoarWEL] OUNTY, COLORADO BY: Deputy Clto th Boar 4809375 Pages: 12 of 12 03/11/2022 10:03 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County , CO Bill coat K. James, Chair MAR 0 9 Pte. -2 Asphalt Specialties Company, Inc. - AP21-00767 - IA21-0009 Page 12 of 12 o2oza--D763 Hello