HomeMy WebLinkAbout20222401.tiffeZeiff
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Improvements and Road Maintenance Agreement for:
State of Colorado, State Board of Land Commissioners, c/o Kiewit Infrastructure Co. — USR21-0003
DEPARTMENT: Planning Services DATE: August 2, 2022
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Planning Services received a request from the applicant, State of Colorado, State Board of
Land Commissioners, c/o Kiewit Infrastructure Co., requesting that the Board of County Commissioners consider
approving the Improvements and Road Maintenance Agreement for (USR21-0003). 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 Use by Special Review Permit Resolution, as signed
by the Board of County Commissioners.
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 USR21-0003, and that this item be placed on the next regularly scheduled
BOCC Hearing, as part of the Consent Agenda.
Perry L. Buck
Mike Freeman, Pro-Tem
Scott K. James, Chair
Steve Moreno
Lori Saine
Approve
Schedule
Recommendation Work Session Other/Comments:
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2022-2401
IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
State of Colorado, State Board of Land Commissioners, c/o iewit Infrastructure Co. USR21-0003
THIS AGREEMENT is made this / 714day of 202 by and between Kiewit
Infrastructure Co., 160 Inverness Drive West, Suite 110, Englew d, Colorado 80112, hereinafter referred
to as "Property Lessee," 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."
WITNESSETH:
WHEREAS, Property Lessee is the lessee of the following described property in the County of
Weld, Colorado:
Section 36, Township 11 North, Range 67 West of the 6th
P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Lessee has received Board of County Commissioner approval of
USR21-0003, and
WHEREAS, Property Lessee acknowledges that the approval of USR21-0003 is conditional upon
Property Lessee's funding and/or construction 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 — Plat Map (recorded simultaneously with this Agreement), and
WHEREAS, Property Lessee acknowledges that pursuant to the provisions of Weld County Code
Sec. 23-2-290, the failure to commence construction of the improvements to the extent required as outlined
herein, within three (3) years of the approval of USR21-0003 may result in the revocation or suspension of
USR21-0003, upon consideration and order of the Board of County Commissioners, and
WHEREAS, the parties agree that the Property Lessee shall provide collateral for off -site
improvements, if/when triggered, as required by this Agreement
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant, and agree as follows:
PART I: SITE SPECIFIC PROVISIONS
A. Off -Site Improvements (as required by the BOCCI: The Property Lessee shall be responsible
for the construction of certain "off -site" (which means on or along County roads subject to this Agreement)
safety improvements as follows: construction of adequate turning radii of sixty (60) 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
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
Page 1 of 13 ozootz ,/�
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 Use by Special Review Permit reaches certain
safety thresholds as set forth in this Agreement, the Property Lessee shall design, and construct required
road improvements based on the amount of traffic being generated by the site. The Property Lessee's
development does not as of the signature date of this Agreement meet the traffic safety Triggers requiring
the improvements specified below; however, off -site improvements may be warranted in the future.
1.1 Property Lessee shall be required to design, obtain right-of-way as needed, relocate utilities,
and construct said auxiliary lanes as noted below if/when the Property Lessees own traffic to/from
the Property meets the following traffic triggers ("Triggers"):
Property Lessee shall design and construct a left deceleration/turn lane on CR 126
whenever the Property Lessees own traffic exceeds 10 vehicles per hour (VPH)
turning left into the Property for an average daily peak hour.
Property Lessee shall design and construct a right deceleration/turn lane on CR
126 whenever the Property Lessees own traffic exceeds 25 VPH turning right into
the Property for an average daily peak hour.
Property Lessee shall design and construct a right acceleration lane on CR 126
whenever the Property Lessees own traffic exceeds 50 VPH turning right out of
the Property onto CR 126, for an average daily peak hour.
Property Lessee shall design and construct a left acceleration lane on CR 126
whenever the Property Lessees own traffic turning left out of the Property onto CR
126 exceeds 50 VPH for an average daily peak hour.
1.2 If any above Triggers are met, but the traffic is not all the Property Lessees own then Property
Lessee shall be responsible for only its Proportional Share of the improvement costs based on all
of the traffic to/from the Property. If the Property Lessee has traffic involved in the Triggers, then
Property Lessee will project manage all parts of the Improvements, including but not limited to the
construction, design, and engineering of the improvements. Provided however, if there is a Trigger
met and Property Lessee has no truck traffic to and from the Property, then the construction, design,
and engineering of the improvements will be the responsibility of the County.
2.0 Property Lessee's Responsibilities regarding Future Triggers. Property Lessee is responsible for
its Proportional Share of the cost and construction of required improvements as noted above in Section 1.1.
These responsibilities may include but are not limited to the following, as applicable: design, surveys, utility
locates, acquisition of ROW as needed (as specified in Part II A.2.0), dedication of ROW as needed, 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 Lessee 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, as noted above, the Property Lessee 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
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 —1A21-0006
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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.
4.0 Construction Schedule Exhibit. When any Trigger is met, as noted above, the Property Lessee 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 lessee 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 Lessee
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 Lessee 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 Lessee has completed improvements as described in Part II.B,
Subsection 3.2.3, of this Agreement. Property Lessee 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 Lessee shall be financially responsible for its Proportional Share of
the associated costs for maintaining and/or improving designated haul/travel routes as noted below in Part
I D.
1.0 Haul Routes. The following roads are designated as "haul/travel routes" for the Property:
1) CR 126 between Interstate 25 and U.S. Highway 85.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 126 and remain on paved
road for further dispersal. Any County roads used by Property Lessee under USR21-0003 traffic may
become part of the established haul/travel routes.
3.0 Traffic Distribution. The traffic distribution for the Property is as follows:
1) 80% of the Property Lessee traffic existing the Property will exit to the east on CR 126 and
then drive south on U.S. Highway 85.
2) 20% of the Property Lessee traffic exiting the Property will exit to the west on CR 126 to
Interstate 25.
3) 100% of the Property Lessee traffic entering the Property will come from the west via Interstate
25 and CR 126.
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 —1A21-0006
Page 3 of 13
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 Public
Works 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 Lessee.
6.0 Haul Route Signage. Property Lessee 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.
8.0 Proportional Share. The Property Lessee's financial responsibility for maintaining and/or
improving designated haul/travel routes is determined as noted below in Part 1 D. 5.0.
D. Maintenance Requirements:
1.0 Off -site recurring maintenance, as noted below, if applicable, as required by the Board:
2.0 Repair. Property Lessee shall be financially responsible for its Proportional Share of excavation,
patching, and pavement repair on designated haul/travel routes, which are performed by the County. 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 Property
Lessee traffic that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection, notify Property Lessee of such Significant Damage.
Property Lessee 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 Lessee identifies Significant Damage prior to receiving notice thereof from County,
Property Lessee 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).
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 Lessee in writing that the Off -Site
Improvements/Repairs to be undertaken.
4.1 Property Lessee's payment for its Proportional Share of the road repairs/improvements will
be calculated as determined in this Agreement. Property Lessee will be invoiced accordingly for
those proportional share costs.
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
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5.0 Calculation of Property Lessee's Proportional Share of Costs. The County shall notify Property
Lessee of County's preliminary determination and assessment of Property Lessee's Proportional Share of
costs of maintenance, repair, or improvements to Property Lessee's designated haul/travel routes using
commercially reasonable methodology. Prior to County's final determination and assessment, County shall
provide Property Lessee with a reasonable opportunity to review, comment upon and supplement County's
data, collection methodology, and determinations. The County shall review and consider Property Lessee's
input prior to making a final determination and assessment. The County shall have sole responsibility for
determination of Property Lessee's Proportional Share of costs. Property Lessee agrees to pay such
Proportional Share of costs within 90 days of receiving an invoice from County.
6.0 Annual Road Inspection. County may conduct a road inspection annually with the cooperation of
Property Lessee and all other third parties 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 Lessee of the required roadway repairs will be given as soon as the data
becomes available.
7.0 Notification. The County shall notify Property Lessee of County's preliminary determination and
assessment of Property Lessee's Proportional Share of costs of maintenance, repair, or improvements to
Property Lessee's designated haul/travel routes. Prior to County's final determination and assessment,
County shall provide Property Lessee with a reasonable opportunity to review, comment upon and
supplement County's data, collection methodology, and determinations. The County shall review and
consider Property Lessee's input prior to making a final determination and assessment.
PART II: GENERAL PROVISIONS
A. Engineering and Construction Requirements:
1.0 Engineering Services. Property Lessee shall furnish to County, upon County's request, at its own
expense (except where Part 1 B provides Property Lessee is only required to pay its Proportional Share),
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 in relation to the Future Improvements in Part 1.B. 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.
2.0 Rights -of -Way and Easements. Before commencing the construction of the off -site improvements
in Part I B, herein agreed upon for public ROW or easements, Property Lessee shall endeavor to acquire,
at its sole expense (except where Part 1 B provides Property Lessee is only required to pay its Proportional
Share), good and sufficient ROW and easements made necessary for said improvements. The County will
not exercise eminent domain on behalf of Property Lessee. 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.
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
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3.0 Construction. Property Lessee shall furnish and install, at its own expense, the improvements (and
any drainage -related structures required by any MS4 permit) for Future Improvements as set forth in Part I
B as 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 Lessee.
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 for Future Improvements in Part I B. Property Lessee 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 Lessee shall 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 Lessee'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 Lessee.
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 Lessee 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 Lessee shall provide to County the necessary
collateral to guarantee all of Property Lessee's obligations under this Agreement: (1) Project Collateral is
required for completion of off -site improvements, as set forth in Future Improvements Part I B, as described
in this Agreement; (2) Warranty Collateral is required for all off -site Future Improvements in Part I B
during the two-year warranty period. Collateral acceptance and release is governed by the Weld County
Cod,
1.1 Project Collateral shall be submitted to guarantee completion of off -site improvements for
Future Improvements in Part I B designed and constructed by Property Lessee as identified in the
future prepared 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 approval of the construction cost and schedule for the relevant
improvements, unless otherwise directed by the Board of County Commissioners. In the event that
Property Lessee 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.
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
Page 6 of 13
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 Future Improvements in Part I
B designed and constructed by Property Lessee. Warranty Collateral shall be in an amount equal
to 15% of Project Collateral. In the event that Property Lessee 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, the Planning Department conducts inspections for on -site
improvements, and the Department of Public Works 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
shall be withheld by County at the time of release of Project Collateral or may be submitted
separately by Property Lessee. 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 Lessee 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 Lessee'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.
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8. 3.2.3 "As -built" plans shall be submitted at the time the letter requesting release of
2.-4 collateral is submitted or at such time as the Property Lessee has completed
improvements as shown on the Exhibit C and/or Exhibit D and shall be stamped
3 and approved by an Engineer registered in the State of Colorado, if an Engineer
ail M was initially required for the project. The Property Lessee's Engineer shall certify
Vm3ei that the project "as -built" is in substantial compliance with the plans and
- - specifications as approved, or that any material deviations have received prior
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.:g written acceptance from the County Engineer.
il3.33
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
dm:-,. Agreement. Upon approval, the Board of County Commissioners may release said collateral.
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N an C. Acceptance of Improvements:
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�m�� n i i = State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
Page 7 of 13
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.
1.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements set forth in
Future Improvements in Part I B, Property Lessee shall contact the Weld County Department of Public
Works 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:
2.1 Upon completion of construction of all off -site improvements (Future Improvements in
Part I B) as described in the Construction Plans, Property Lessee shall submit to the Weld County
Department of Public Works a Statement of Substantial Compliance by Property Lessee's Engineer
along with "as -built" drawings as required in subsection B.3.2.3, above, and shall request County
inspection of the Off -Site Improvements. County personnel shall then inspect the improvements.
If the County determines the improvements were not constructed in accordance with the
Construction Plans, the County shall direct the Property Lessee to correct the deficiencies. If the
County determines the improvements were constructed in accordance with the Construction Plans,
the County shall initially approve the Off -Site Improvements.
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 Works personnel shall, upon
request by the Property Lessee, inspect the subject improvements, and notify the Property Lessee
of any deficiencies. If any deficiencies are discovered, the Property Lessee shall correct the
deficiencies. County personnel shall re -inspect the improvements after notification from the
Property Lessee that said deficiencies have been corrected. If the County personnel finds that the
improvements are constructed according to County standards, he or she shall approve the
improvements. Such final approval shall authorize the Property Lessee 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 Lessee 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 Lessee.
D. Permits: Property Lessee 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 Lessee shall not use any access onto any County road unless and until
$; an access permit has been issued by the Department of Public Works. Public Works may condition the
�v - 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
aooLLca_ permitted by Article XIV of Chapter 8 of the Weld County Code.
iQ2 2.0 Right -of -Way (ROW) Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work
t.. occurring within County ROW requires a ROW permit issued by the Department of Public Works. No work
shall occur without said ROW permit.
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�m +� State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
Page 8 of 13
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 Lessee has violated any of the
terms of this Agreement, County shall notify Property Lessee 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 Lessee shall have thirty (30) days within which to either cure the violation or
demonstrate compliance. If, after thirty (30) days have elapsed, County believes in good faith that the
violation is continuing and Property Lessee is not taking reasonable steps to remedy the violation, County
may consider Property Lessee to be in breach of this Agreement.
2.0 Remedies for Breach by Property Lessee. In the event that County determines that Property Lessee
is in material violation of the terms of this Agreement and has failed to correct said violation as noted above
after notice thereof from the County, County may exercise any or all of the following remedies, or any other
remedy available in law or equity.
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 USR Permit. Property Lessee acknowledges that failure to comply with the
terms of this Agreement constitutes cause to revoke the USR, 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, USR21-0003, under Weld County Code Section 23-2-290.
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.
Property Lessee shall have no further obligations for funding or completing any of the activities
hereunder, except in the case that the County has to complete any partially completed
improvements (required to be completed by Property Lessee hereunder) that the County determines
necessary for traffic safety purposes.
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 — IA21-0006
Page 9 of 13
3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon
Property Lessee's complete cessation of all activities permitted by the USR 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 Lessee of cessation of activities, and verified by the
County, cessation shall only be presumed if the County determines that the USR has been inactive
for three (3) years. Property Lessee shall not be entitled to a release of Project or Warranty
Collateral unless and until the improvements to the extent 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 lessee or operator who has
purchased the Property or has assumed the operation of the business permitted by the USR and
intends to make use of the rights and privileges available to it through the then existing USR.
3.4 Revocation of USR. This Agreement shall terminate following County's revocation of
Property Lessee's USR, except that the Property Lessee shall only be released from this Agreement
after the successful completion of all improvements to the extent required under this Agreement,
which may be completed by County after accessing Property Lessee's collateral if Property Lessee
fails to complete such improvements subject to the terms of this Agreement.
F. General Provisions:
1.0 Successors and Assigns.
1.1 Property Lessee 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 Lessee's release of its obligations
shall be accomplished by County's execution of a new Improvements Agreement with the
successor lessee 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
8a 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.
me.= 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.
afi
'�e I 4.0 Amendment or Modification. Any amendments or modifications to this agreement shall be in
is writing and signed by both parties.
crel: %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
:3 a� reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of
ZaZIM State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 — IA21-0006
Page 10 of 13
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 Lessee,
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 Indemnification/Limitation of Liability. Property Lessee 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 to the extent caused by, the negligent design and/or construction of
improvements by Property Lessee, and pay any and all judgments rendered against the County, together
with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim
to the extent caused by the negligent design and/or construction of improvements by Property Lessee,
provided however, Property Lessee's liability hereunder shall not exceed in aggregate $10 million. 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
Lessee shall provide the County with proof of Property Lessee's authority to enter into this Agreement
within five (5) days of receiving such request.
12.0 Acknowledgment. County and Property Lessee 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
State of Colorado, State Board of Land Commissioners do Kiewit Infrastructure Co. — USR21-0003 - IA21-0006
Page 11 of 13
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.
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 — IA21-0006
Page 12 of 13
PROPERTY LESSEE:
:Kiewit Infrastructure Co.
By: ( -
Name: 6404. �' �rG✓�ruGt�t
Title: $yF. V,
STATE OF COLORADO
County of Weld
Date 7/z4A,
L
SS.
The foregoing instrument was acknowledged before me this 2.9 day of - t s .Su. ,
202 2, by
WITNESS my hand and official seal.
FIONA L BIGGS
Notary Public
State of Colorado
Notary ID 8 20224004028
My Commission Expires 01-27-2026
Notary Public
WELD COUNTY:�C
ATTEST: .,a,,,` '&k. BOARD OF COUNTY COMMISSIONERS
Weld C. n ►, Clerk to the Boar. WELD f OUNTY, COLORADO
BY:
Deputy Cler /. the t oard
K. James, Chair AUG 1 7 2022
State of Colorado, State Board of Land Commissioners c/o Kiewit Infrastructure Co. — USR21-0003 — IA21-0006
Page 13 of 13
O2l%zO? —2 o/
Contract Form
New Contract Request
Entity Information
El New Entity?
Entity Name.
KIEWIT INFRASTRUCTURE CO
Entity ID*
000045922
Contract Name.
IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT
STATE OF COLORADO, STATE BOARD OF LAND
COMMISSIONERS C O KIEWIT INFRASTRUCTURE CO. USR21 -
0003
Contract Status
CTB REVIEW
Contract ID
6199
Contract Lead
JTRUIILLOMARTINEZ
Contract Lead Email
jtnujillomartinez°_t weldgov.c
or,
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description"
IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT STATE OF COLORADO, STATE BOARD OF LAND COMMISSIONERS C O
KIEWIT INFRASTRUCTURE CO, U5R21 -0003 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type'
AGREEMENT
Amount *
Renewable *
NO
Automatic Renewal
Grant
Department
PLANNING
Department Email
CM -Planning 2weldgay.com
Department Head Email
CM-Planning-
DeptHead nweldgov.corn
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COUNTYATTORNEY- UWELOG
OV.C OM
If this is a renewal enter previous Contract ID
If this is part of a MSA enter MSA Contract ID
Requested BOCC Agenda
Date
08 15 2022
Due Date
08 11 2022
Will a work session with BOCC be required?*
HAD
Does Contract require Purchasing Dept. to be included?
NO
Note. the Precious Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
OnBace
Contract Dates
Effective Date
Review Date.
Renewal Date
Termination Notice Period
Committed Delivery Date
Expiration Date*
08 15 2524
Contact Information
Contact Info
Contact Name
Purchasing
Contact Type Contact Email Contact Phone 1 Contact Phone 2
Purchasing Approver Purchasing Approved Date
Approval Process
Department Head
TOM PARK° JR.
DH Approved Date
08 09 2022
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
08 17 2022
Originator
JTRUJI LLOMARTINEZ
Finance Approver
CHERYL PATTELLI
Legal Counsel
CAITLIN PERRY
Finance Approved Date Legal Counsel Approved Date
00 09 2022 08 12 2022
Tyler Ref #
AG 031 722
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