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Home My WebLink About20212498.tiffRESOLUTION RE: APPROVE NON-EXCLUSIVE LICENSE AGREEMENT FOR SCALE WITHIN COUNTY ROAD 59 RIGHT-OF-WAY AND AUTHORIZE CHAIR TO SIGN - LONGS PEAK DAIRY, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Non -Exclusive License Agreement for Scale within County Road 59 Right -of -Way between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Longs Peak Dairy, LLC, 45490 County Road 39, Pierce, Colorado 80650, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, 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 Non -Exclusive License Agreement for Scale within County Road 59 Right -of -Way between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Longs Peak Dairy, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 18th day of August, A.D., 2021. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: dletAtio ;(1 Weld County Clerk to the Board BY: Deputy Clerk to the Boar APP' : 'IED County Attorney Date of signature: o'l/27/ Steve reno, Chair Lori Saine 2021-2498 EG0079 cc: cACsc) O9/01/21 TO: Board of County Commissioners FROM: Bob Choate, Assistant County Attorney DATE: August 10, 2021 SUBJECT: Non-exclusive license agreement — scale house Commissioners, Longs Peak Dairy LLC sought and received a setback variance for their scale house from the Board of Adjustment. That variance required a survey of the road, which later showed that the scale house is partially within the County Road 78 non -maintained right of way. This non-exclusive license agreement allows the scale house to remain where it is, but for the property owner to relocate it at their own costs if the County ever decides to improve the road at this location. Public Works has indicated that they have no plans to do that anytime in the near future. Therefore I recommend you approve this no -cost license agreement. If you agree, I'll put this on your agenda for approval. Approve Staff Recommendation Work Session Requested Comments Steve Moreno Scott James (\(\ _ Mike Freeman 'I' ' Perry Buck Lori Saine 2021-2498 crs b0\u? NONEXCLUSIVE LICENSE AGREEMENT FOR SCALE WITHIN WELD COUNTY ROAD 59 RIGHT OF WAY TT1Tc l gNEXCLUSIVE LICENSE AGREEMENT made and entered into this I day of Irtliq 7r , 2021, by and between WELD COUNTY, COLORADO, through the Board of County Commissioners of Weld County, Colorado, whose address is 1150 O Street, Greeley, Colorado 80631, as First Party, and LONGS PEAK DAIRY, LLC, whose address is 45490 County Road 39, Pierce, Colorado, 80650, as Second Party. WITNESSETH: WHEREAS, Second Party owns a Scale (the "Scale"), as depicted on the attached Land Survey Plat (incorporated herein as Setback Exhibit), and WHEREAS, the Scale is located within the unmaintained public road right-of-way (ROW) of County Road (CR) 59, approximately one (1) mile north of CR 78, and WHEREAS, First Party is the owner of the CR 59 ROW, and WHEREAS, Second Party desires to access, operate, repair, and otherwise use the Scale at its own expense without the requirement to relocate the Scale from the CR 59 ROW, and WHEREAS, First Party is willing to accommodate Second Party pursuant to the term of this Agreement. NOW, THEREFORE, in consideration of the covenants contained herein and the agreements of said Second party to be performed hereunder, and upon the conditions herein stated, First Party does grant to Second Party, its successors and assigns, a nonexclusive license to access, operate, repair, and otherwise use the Scale within the ROW. 1. The parties intend that this Agreement shall allow Second Party to access, operate, repair, and otherwise use the Scale in the manner it was intended and constructed for. 2. However, First Party retains the right to revoke this Nonexclusive License Agreement at any time for good cause as reasonably determined in First Party's sole discretion. Good cause may include, but is not limited to, First Party's determination to construct or maintain, or allow others to construct or maintain, a public road in the CR 59 ROW. If First Party revokes this Agreement, First Party may require Second Party to remove and vacate all facilities and uses that First Party deems not to be in the best interests of the public. Such removal and vacation shall be at Second Party's sole expense, and shall be accomplished within a reasonable time. Such revocation shall not prohibit Second Party's continued use of the ROW for access to Second Party's property, to the extent that such continued use is consistent with the right of the public to use the ROW. First Party shall give Second Party written notice of its intent to revoke this Nonexclusive License Agreement at least six (6) months prior to the intended date of revocation. Such notice shall be sent to Second Party by Certified Mail to its address written above or served upon Second Party in accordance with the Colorado Rules of Civil Procedure. Second Party shall have the duty of informing First Party of Second Party's change in address from the above stated address. 3. This Nonexclusive License Agreement does not grant the right to gate or fence ROW for private use. 4750102 Pages: 1 of 6 08/26/2021 12:59 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County , CO Ili �J �r«I 'I�r�h�4�Jti4��'�'�1�1 i hW�h 11111 4. Any maintenance of any of Second Party's facilities in the ROW shall be at its own expense and without the aid or use of Weld County funds. 5. Except for the negligence of First Party, Second Party shall indemnify and save harmless First Party, its successors, assigns, employees, and agents from any damage or loss sustained by them or any of them to the extent caused by Second Party's negligence with respect to the maintenance and/or use of the ROW. Except for the negligence of First Party, Second Party agrees to protect First Party and save and hold it harmless from any and all third -party claims and damages that said maintenance and/or use may directly or indirectly cause to the extent attributable to the negligence of Second Party. Second Party hereby releases First Party, its successors, assigns, employees, and agents from any and all claims and damages of whatsoever character to said ROW by Second Party resulting from any act, either on the part of the First Party or on the part of any third party. 6. The rights and obligations provided in this Agreement shall automatically be conveyed to any subsequent purchaser of the property underlying the Scale, and shall run with the land. Second Party shall give notice to First Party within sixty (60) days of any such conveyance. General Provisions 7. Notices. All notices or other communications made by one party to the other concerning the terms and conditions of this contract shall be deemed delivered under the following circumstances: (a) personal service by a reputable courier service requiring signature for receipt; or (b) certified mail, return receipt requested and received to the party at the address set forth below. TO FIRST PARTY: Chair, Board of County Commissioners, 1150 'O' Street, Greeley, CO 80631 TO SECOND PARTY: Longs Peak Dairy, LLC, 45490 County Road 39, Pierce, CO 80650 8. Entire Agreement/Modifications. This Agreement including the Exhibits attached hereto and incorporated herein, contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiations, representations, and understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement may be changed or supplemented only by a written instrument signed by both parties. 9. Survival of Termination. The obligations of the parties under this Agreement that by their nature would continue beyond expiration or termination of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality and record keeping requirements) shall survive any such expiration or termination. 10. 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. 11. Governmental Immunity. No term or condition of this Agreement 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. 4750102 Pages: 2 of 6 08/26/2021 12:59 PM R Fee:$0.00 Carly Koppea, Clerk and Recorder, Weld County , CO 1111Qilk "III 12. 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. 13 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. 14. 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 shall have exclusive jurisdiction to resolve said dispute. 15. Attorneys Fees/Legal Costs. In the event of a dispute between the parties 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. 16. Acknowledgment. The Parties 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 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. It is mutually understood and agreed that this Nonexclusive License Agreement and all the terms and conditions hereof shall extend to and be binding upon the parties hereto, their successors, and assigns. LONGS PE DAIRY By: Date: jOw.C 17 ZOZ 4 Greg Podtburg, Owner SUBSCRIBED AND SWORN to before me this 1` day of 151,,t , 2021. By: (7j( Pd d41.3I,tV WITNESS my hand and official seal Notary Public IMMOANA M THADEN NOTARY PUBLIC STATE OF COLORADO NOTARY ID# 19914013017 MY COMMISSION EXPIRES CO27/2023 4750102 Pages: 3 of 6 08/28/2021 12:59 PM R Fee:$0.00 Carly Koppe5, Clerk and Reoorder, Weld County , CO 11111 My commission expires: C7-7) 7 dj.3 WELD COUN Y: ATTEST: dio h V, . p' Weld C. n., erk to e B•ar'i BY: BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Steve Moreno, Chair AUG 1 8 2021 4750102 Pages: 4 of 6 08/28/2021 12:59 PM R Fee:$0.00 Carly Koppea, Clerk and Recorder, Weld County CO uIII Iir5Ia �iil iiii�ii'Iak I' hLliii �Cij�hj 1I 111 0,2a,2_/ -029r NON-EXCLUSIVE LICENSE AGREEMENT FOR SCALE WITHIN CR 59 RIGHT-OF-WAY - LONGS PEAK DAIRY, LLC APPROVED AS TO SUBSTANCE: Elected Official or Department Head Controller APPROVED AS TO FORM: rs County Attorney 4750102 Pages: 5 of 6 08/26/2021 12:59 PM R Fee:$0.00 Carly Koppel, Clerk and Recorder, Weld County , aiho,11111 RIGHT-OF-WAY SETBACK EXHIBIT EXISTING ROAD SECTION 13 SCALE CD N - SCALE HOUSE LEGEND SECTION 14 SECTION LINE EDGE OF ROAD RIGHT-OF-WAY LINE FENCE 20 SCALE: P =20 MI RESOLUTION OF THE WELD COUNTY BOARD OF ADJUSTMENT Moved by Gene Stille that the following resolution be introduced for passage by the Weld County Board of Adjustment. Be it resolved by the Weld County Board of Adjustment that the following be adopted: CASE NUMBER: BOA21-0001 APPLICANT: LONGS PEAK DAIRY, LLC PLANNER: CHRIS GATHMAN REQUEST: APPEAL FOR A VARIANCE FROM SETBACK OF COUNTY ROAD 59 (TO CONSTRUCT A SCALE HOUSE 2 -FEET WITHIN AND SCALE 18 - FEET WITHIN THE 20 -FOOT SETBACK) IN THE A (AGRICULTURAL) ZONE AS DELINEATED PER SECTION 23-3-70.6 OF THE WELD COUNTY CODE. LEGAL DESCRIPTION: SE4 SECTION 14, T7N, R64W OF THE 6TH P.M., WELD COUNTY, COLORADO. LOCATION: WEST OF AND ADJACENT TO CR 59; APPROXIMATELY ONE MILE NORTH OF CR 78. The Board of Adjustment has determined that the submitted materials are in compliance with the application requirements of Section 23-6-40 of the Weld County Code and that this request be approved for the following reasons: A. Section 23-6-40.C.1 - Special conditions and circumstances exist which are peculiar to the lot, structure or building involved and which are not applicable to other lots, structures or buildings in the same zoning district. The scale house and scale are located next to a non -maintained County Road 59 right-of-way. The right-of-way accessing the site is not contiguous. The right-of-way is located to the east of the section line to the south of this property and then switches to the west side of the section line on this property. The applicant owns property on both sides of the right-of-way. B. Section 23-6-40.C.2 — Literal interpretation of the provisions of this Chapter would deprivethe appellant of rights commonly enjoyed by other properties in the same zoning district under the terms of this Chapter. The right-of-way is not contiguous on County Road 59 north of County Road 78 so in order for someone other than Longs Peak Dairy to follow County Road 59 north would be trespassing onto Longs Peak Dairy's property. The Board of Adjustment does not believe that the applicant is gaining any benefit or right in this situation and the applicant has agreed to relocate the building and scale should the County build the road in the future. C. Section 23-6-40.C.3 — The special conditions and circumstances do not result solely fromthe actions of the appellant. The applicant had originally planned to install the scale house and scale where an existing oil and gas production facility was to be removed. However, the timeline for removal wasn't going to work for the construction timeline for the dairy and the Board of Adjustment believes this was an added cost to the applicants. D. Section 23-6-40.C.4 — The reasons set forth in the application and testimony justify the granting of the variance, and the variance is the minimum variance that will make possiblethe reasonable use of the lot building or structure. Given that the scale house and scale have already been installed, the variance is the minimum variance that will make possible the reasonable use of the lot building or structure. E. Section 23-6-40.C.5 — The granting of the variance will be in harmony with the purpose and intent of this Chapter, and will not be injurious to the neighborhood or otherwise detrimental to the public health, safety or welfare. The granting of this variance will not be injurious to the public health, safety or welfare. The existing physical roadway is located to the east of the scale and scale house. The applicant currently owns land on both sides of the right-of-way and has agreed to relocate these structures in the event the right-of-way is dedicated to the public and a road is constructed. The Department of Planning Services has not received any comments or concerns from the surrounding property owners regarding this variance. Based on the submitted application materials and other relevant information regarding this request, the Board of Adjustment's approval is conditional upon the following: 1. A survey shall be provided showing the location of the existing physical roadway and the location of the County Road 59 right-of-way, in relation to the subject improvements located within the setback. 2. In the event that the full width of County Road 59 right-of-way is dedicated, and a public road is constructed, the scale house and scale shall be relocated to meet the 20 -foot setback from the right-of-way at the property owner's expense. 3. If an on -site wastewater treatment system is installed to serve the scale house, a 10 -foot setback from future right-of-way must be met or a variance would have to be approved by the Board of Public Health. Motion seconded by Lonnie Ford. VOTE: For Passage Karl Kohlgraf Michael Wailes Gene Stille Lonnie Ford Kathryn Wittman Against Passage Absent The Chair declared the resolution passed and ordered that a certified copy be forwarded with the file of this case to serve as a permanent record of these proceedings. CERTIFICATION OF COPY I, Kristine Ranslem, Recording Secretary for the Weld County Board of Adjustment, do hereby certify that the above and foregoing resolution is a true copy of the resolution of the Board of Adjustment of Weld County, Colorado, adopted on April 6, 2021. Dated the 6th of April, 2021. Kristine Ranslem Secretary Hello