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Home My WebLink About20202045.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Improvements and Road Maintenance Agreement for: Farmers Reservoir and Irrigation Company c/o Heritage Sporting Club — USR17-0012 DEPARTMENT: Public Works DATE: June 29, 2020 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the issue: The Department of Public Works received a request from the applicant, Farmers Reservoir and Irrigation Company c/o Heritage Sporting Club, requesting that the Board of County Commissioners consider approving the Improvements and Road Maintenance Agreement for (USR17-0012). No collateral is required with this agreement. Weld County Public Works, Planning Services 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? 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 Public Works, Planning Services and the County Attorney's Office are recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements for USR17-0012, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Mike Freeman, Chair Scott K. James Barbara Kirkmeyer Steve Moreno, Pro -Tern Kevin D. Ross Approve Schedule as Regular Recommendation 13OCC Hearing Item Other/Comments: cc Aw( OA t, Tm i Tri rR,) PLCCG! KR) ' O$! C - Pa)) 2020-2045 Aoemi I IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Farmers Reservoir and Irrigation Company, c/o Heritage Sporting Club — USR17-0012 THIS AGREEMENT is made this flay of , 202O , by and among Heritage Sporting Club, a corporation organized under the laws of the Sta of lorado, whose address is P.O. Box 628, Kersey, CO 80644, hereinafter referred to as "Property Le ee," uthorized to do business in the State of Colorado, the Farmers Reservoir and Irrigation Company, a Colorado mutual ditch company, whose address is 80 South 27`'' Avenue, Brighton, CO 80601, hereinafter referred to as "Property Owner," 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 Owner is the owner of the following described property in the County of Weld, Colorado: Part Sections 4, 9, 10, 11, 14, 15, 22 and 23, all in Township 3 North, Range 65 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner, for the benefit of Property Lessee, has received Board of County Commissioner approval of USR17-0012, and WHEREAS, USR17-0012 is expected to generate traffic on County roadways that would not otherwise utilize County roadways to the same extent, and WHEREAS, Property Owner and Property Lessee acknowledge that the final approval of USR17- 0012 is conditional upon Property Lessee's funding and/or construction of the road maintenance and repairs described in this Agreement and off -site improvements if/when triggered and to be depicted in the following incorporated exhibits: Exhibit A - Future Improvements Costs of Construction, to be attached pursuant to Part I, B.4.0, below Exhibit B — Future Improvements Construction Schedule, to be attached pursuant to Part I, B.5.0, below Exhibit C — Construction Plans, to be attached when triggered pursuant to Part I, B.1.0., below Exhibit D — Plat Map, and WHEREAS, Property Owner and Property Lessee acknowledge if/when improvements set out in this Agreement have been triggered, Property Owner and Property Lessee agree to their proportional share of the funding and/or construction, as required, as set out herein, and WHEREAS, Property Owner and Property Lessee acknowledge that the failure to commence with the proportional share of the funding/construction of the future improvements outlined herein, if triggered, within three (3) years of Improvement Notice (as defined in Section 2.1, below), may result in the revocation or suspension of USR17-0012, upon consideration and order of the Board of County Commissioners, and Page 1 of 12 4608617 Pages: 1 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII ORIN& PIE Nikki. II II eoo-a©cis WHEREAS, the parties agree that the Property Lessee (or Property Owner, at Property Owner's option as provided in Part II.E., below) shall provide collateral for off -site improvements as required by this Agreement if/when the Board of County Commissioners deems it necessary. 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: RESERVED. - B. Future Off -Site Improvements: 1.0 Property Lessee shall be responsible for the construction of certain off -site safety improvements as identified in the USR hearing Resolution, which may include, but are not limited to: 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 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. 2.0 Traffic Triggers. When the traffic associated with the Use by Special Review Permit reaches certain safety thresholds as set forth in this Agreement, Property Lessee shall fund, design, and construct road improvements based on the amount of traffic being generated by the use. The use 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 based on traffic counts and studies as provided below. 2.1 Property Lessee shall be required to design, obtain right-of-way, relocate utilities, and construct said auxiliary lanes into the Property if/when Property Lessee is notified by the County that all traffic to/from the Property meets the following traffic triggers (hereinafter, "Improvement Notice"), based on average daily trips (rather than trips on high -use days): • Property Lessee shall design and construct a left deceleration/turn lane on CR 47 whenever 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 47 whenever 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 47 whenever traffic exceeds 50 VPH turning right out of the Property for an average daily peak hour. • Property Lessee shall design and construct a left acceleration lane on CR 47 if such a lane is required pursuant to a traffic study and applicable standards as outlined by Colorado Department of Transportation standards, and based on traffic associated with the Use by Special Review Permit. Page 2 of 12 4608617 Pages: 2 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO SIII IirdItee'd'hO k liM Mill tilik'Alk 1I 111 3.0 Improvement' Notice. The Improvement Notice described in subsection 2.1, above, shall be delivered to Property Owner and Property Lessee, along with supporting documentation, including traffic counts or traffic studies, as applicable. Upon delivery of the Improvement Notice and supporting documentation, Property Owner and Property Lessee shall have 14 days to review the supporting documentation. If Property Owner or Property Lessee dispute the traffic counts or traffic study conclusions, then either Property Owner or Property Lessee or both may request a meeting with the County to present contrary evidence, and the parties to the dispute shall meet within 30 days of said request to review the available evidence and attempt in good faith to resolve the dispute. If Property Owner and Property Lessee do not dispute the traffic counts or traffic study conclusions, then the Improvement Notice Date shall be the date of delivery of the Improvement Notice to the Property Lessee or Property Owner, whichever is later. 4.0 Cost of Construction Exhibit. When any trigger is met, the Property Lessee shall submit Exhibit A within six (6) months of the Improvement Notice Date, indicating the cost of construction estimates (engineer's opinion of probable cost) to detail the costs used in determining the collateral requirement. Construction costs must be estimated by a registered Colorado Engineer, who must sign and stamp the engineer's opinion of probable cost exhibit. New or additional collateral may be required for the triggered improvements, as provided in Section II.B, below. After approval by the County, Exhibit A shall be automatically attached to this Agreement and incorporated herein. 5.0 Construction Schedule Exhibit. When any trigger is met, the Property Lessee shall submit Exhibit B within six (6) months of the Improvement Notice Date, indicating the construction schedule, and including a completion deadline 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 Improvement Notice Date 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 the Improvement Notice Date. Exhibit B shall be automatically attached to this Agreement and incorporated herein. C. Travel Routes: The Property Lessee shall be financially responsible for its proportional share of the associated costs for maintaining and/or improving designated travel routes. 1.0 Travel Routes. The following roads are designated as travel routes for the Property: 1) North on CR 47 between the facility access location and CR 34.5, 2) East on CR 34.5 between CR 47 and CR 49 2.0 Traffic associated with the facility shall enter and exit the site at the approved access(es) on CR 47 and travel north -south to the nearest paved road for further dispersal. 3.0 Weight Limits. No vehicles that are operated by Property Lessee may exceed CDOT required specifications for pounds -per -axle and axle configurations, unless overweight permits have been applied for and granted. D. Maintenance Requirements: 1.0 Property Lessee shall pay its proportionate fair share of costs of dust control/abatement, pavement patching and repair, or other comparable routine maintenance (excluding snow removal, ice control, or Page 3 of 12 4608617 Pages: 3 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 I r.ilinflill la"tranh :lialliliCiRigr W h 1111 placement of gravel for traction during winter weather events) of any particular Travel Route Road on the terms set out in this Section D. Property Lessee's Proportionate Share shall be based upon the percentage of traffic on the road that is attributable to Property Lessee's USR. County personnel will determine the percentage based on then -current, actual Equivalent Single Axle Load (ESAL) Counts. 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. Property Lessee shall not be responsible for traffic that is not sourced from the Property Lessee's USR. 2.0 Need for Immediate Repairs: In the event of damage to a designated 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 Lessee of such Damage. Unless the parties agree otherwise, Property Lessee shall reimburse County for its actual direct costs in repairing the Significant Damage within 30 days after presentation to Property Lessee of an invoice supported by commercially reasonable documentation. 3.0 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 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 will be undertaken. Unless the parties agree otherwise, Property Lessee shall reimburse County for its proportional fair share of the estimated costs of the improvements or repairs within 90 days after presentation to Property Lessee of an invoice supported by commercially reasonable documentation. 3.1 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. 4.0 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 final 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. The County shall have sole responsibility for determination of Property 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. 5.0 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 become available. 6.0 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 Page 4 of 12 4608617 Pages: 4 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO III Property Owner's designated haul/travel routes. Prior to County's final 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 II: GENERAL PROVISIONS A. Engineering and Construction Requirements: 1.0 Engineering Services. Property Lessee 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. 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 Lessee shall acquire, at its sole expense, good and sufficient ROW and easements made necessary for the improvements. The County is not obligated to 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. 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) 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. 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 Guidelines. Page 5 of 12 4608617 Pages: 5 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO ��r� h� ��u�� RIO LIAM 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, Property Lessee shall submit a traffic control plan for County review and approval. 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 described in this Agreement; (2) Warranty Collateral is required for all off -site improvements during the two-year warranty period. 1.1 Project Collateral shall be submitted to guarantee completion of off -site improvements identified in Exhibit A. Project Collateral must be submitted in an amount equal to 100% of the value of the proportional share of the improvements, as calculated in the engineer's opinion of probable cost. Project Collateral must be submitted unless waived 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 engineer's opinion of probable cost is older than three (3) years. NO WORK SHALL COMMENCE UNTIL PROJECT COLLATERAL HAS BEEN SUBMITTED AND ACCEPTED BY THE COUNTY. 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 Lessee fails to adequately 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 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 shall be released upon the final acceptance of the Off -Site Improvements by the County at the end of the two-year warranty period, on the conditions and according to the procedures set out in Section II.C.3.2, below. 3.2 Request for Release of Collateral. Prior to release of Project Collateral by the County for the entire project or for a portion of the project, 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: Page 6 of 12 4608617 Pages: 6 of 12 07/15/2020 10:31 AM R Fec:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 11111 lerittitri N'Ih+'g PAM II 3.2.1 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. 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 Lessee has completed improvements as shown on Exhibit C and/or Exhibit D. "As -built" plans shall be stamped and approved by an Engineer registered in the State of Colorado. The Property Lessee'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 the County Engineer. 3.3 County's Response to Request for Release of Collateral. Following a written request for release of collateral, County personnel will inspect and initially approve the improvements as provided in Section II.C., below. Upon approval by County personnel, the BOCC shall release said Project Collateral. C. Acceptance of Improvements: 1.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, 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 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 Owner's Engineer along with "as -built" drawings as required in subsection II.B.3.2.3, above, and shall request County inspection and initial approval 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. The initial approval described in Section II.C.2.1, above, 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. Page 7 of 12 4608617 Pages: 7 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII witwilizrariocwhad 11111 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 Lessee. D. Access and Right -of -Way Permits: 1.0 Access Permits. Property Lessee shall not use any access onto any County road for the purposes set out in the USR unless and until an access permit has been issued by the Department of Public Works. Public Works 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 XN 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. E. Property Owner's Option to Assume Property Lessee's Responsibilities. 1.0 Obligations of Property Lessee Not Binding Upon Property Owner. USR 17-0012, which is the basis for this Agreement, is for the benefit of Property Lessee. The obligations of this Agreement that bind Property Lessee shall not bind Property Owner. 2.0 Property Owner's Option to Assume Obligations. All parties agree that if: (1) Property Lessee's lease with Property Owner is terminated; or (2) Property Lessee defaults under this Agreement and fails to cure the default within the period set out in Section F., below (collectively, "ASSUMPTION EVENTS"); then Property Owner may assume all rights and obligations of Property Lessee under this Agreement, except any claims for damages that the County may assert that accrued prior to the date of such assumption, which shall remain the obligation of Property Lessee. Upon Property Owner's assumption of the rights and obligations of this Agreement, Property Owner shall have the benefit USR 17-0012, as may be amended from time to time, and may either operate the use authorized by. USR 17-0012 or lease the Property to another entity for the purposes of operating the use authorized by USR 17-0012. 3.0 Timing of Assumption of Rights and Obligations. Property Owner may exercise its right to assume the rights and obligations of this Agreement within one year after either of the Assumption Events specified in Section E.2.0, above, occur. F. Enforcement and Remedies: 1.0 Violation of Terms of Agreement. If the County alleges that Property Lessee has violated any of the terms of this Agreement, County shall notify Property Owner and Property Lessee of its allegation that the Agreement has been violated, and shall state with specificity the facts and circumstances which County alleges constitute the violation. Property Lessee shall have fifteen (15) days within which to either cure the violation or demonstrate compliance. If, after fifteen (15) days have elapsed, County determines that the violation is continuing, County may consider Property Owner to be in breach of this Agreement. However, if the violation cannot reasonably be cured within fifteen (15) days, then the Property Lessee shall not be Page 8 of 12 4608617 Pages: 8 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO iii ciljl lk fifiVai0:1101 Il VILNAIIIHidlid X1111 determined to be in breach of this Agreement if the Property Lessee commences the cure within fifteen (15) days and thereafter diligently pursue the cure to completion. 2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Lessee has violated the terms of this Agreement, and has failed to correct said violation as provided in Section F.1.0, above, 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, but only with respect to construction authorized by USR 17-0012. County will not "lock" permits requested by Property Owner or other parties that are authorized by Property Owner if such permits are not pursued under USR 17-0012. 2.3 Court Action. County may seek relief in law or equity by filing an action in the Weld County District Court, 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 or Suspension 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. In the alternative, the County may, in the exercise of its discretion, suspend the USR as to the Property Lessee, and allow Property Owner to either cure the default and assume the USR as provided in Section E., above, or to find an alternative Lessee to do the same. If the County elects to suspend the USR, the County may place such conditions on the suspension as the County determines are necessary to ensure compliance with this Agreement. 3.0 events: Termination of Agreement. This Agreement shall terminate upon the earliest of the following 3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of the underlying land use approval under Weld County Code Section 23-2-290. 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 Owner 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 required by this Agreement are completed, or are not commenced because they are not required due to cessation of all permit related activities. 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 Property Lessee who has purchasedor leased the Property or has otherwise assumed the operation of the business Page 9 of 12 4608617 Pages: 9 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO �� IMPARICAMON'11 tLr IWIi NOM CI II II 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 USR 17-0012, except that the Property Lessee shall only be released from this Agreement after the successful completion of all improvements that have commenced pursuant to this Agreement, which may be completed by County after accessing Project Collateral or Warranty Collateral, as applicable, if Property Lessee fails to complete such improvements. F. General Provisions: 1.0 Successors and Assigns. 1.1 Except as specifically provided herein, 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. 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, if allowed by law, in lieu of such invalid, illegal, or unenforceable provision, there shall automatically be added as part of this Agreement a provision similar in terms to such illegal, invalid, or unenforceable provision so that the resulting reformed provision is legal, valid, and enforceable. If such reformation is not possible, 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. It is all parties' intent that this Agreement be construed in accordance with applicable law. If it becomes apparent to any party that the legality or enforceability of any term of this Agreement is legitimately in question, no party shall be estopped from raising such claim as a result of having enjoyed the benefits of this Agreement. 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. However, Property Owner and Property Lessee do not hereby waive any argument that the CGIA does not apply to claims or defenses related to this Agreement. 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. Page 10 of 12 4608617 Pages: 10 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO Kid "III 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 shall have exclusive jurisdiction to resolve said dispute. 8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between or among Parties hereto concerning this Agreement, the Parties agree that each 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 II.F.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 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 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 and Property Lessee shall provide the County with proof of Property Owner's and Property Lessee's authority to enter into this Agreement within five (5) days of receiving such request. 11.0 No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party's rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. 12.0 Acknowledgment. County, Property Lessee, and Property Owner acknowledge that each has read this Agreement, understands it and agrees to be bound by its terms. All parties further agree that this Agreement, with the attached or incorporated Exhibits, is the complete and exclusive statement of agreement among 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 Relationship to USR. 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 an irreconcilable conflict between this Agreement and the Weld County Code in effect on the effective date of this Agreement, the terms of the Weld County Code shall control. Page 11 of 12 4608617 Pages: 11 of 12 07/15/2020 10:31 AM R Fee:$0.00 Carly Koppes, Clerk and Reoorder, Weld County, CO IRA refrAihigkl§lidi1I II PROPERT By: �11A1J1 i1 / `-- Name: Scott Edgar _ Title: General Manager, The Farmers Reservoir and Irrigation Company STATE OF COLORADO County of Adams ) ) ) SS. Date o/za 12_020 The foregoing instrument was acknowledged before me this 29th day of June, 2020 by Scott Edgar, General Manager of The Farmers Reservoir and Irrigation Company. WITNESS my hand anc official skt RatllPl' AFnf �� o Public STATE OF COL ®RADf NOTARY ID 200640417 M1r COMMISSION MORES 06 /27 PROPERTY LESSEE: By: Name: Derek Sowell Title: President Heritage Sporting Club LLC STATE OF COLORADO ) ) ss. County of Adams ) Date j 2( The foregoing instrument was acknowledged before me this 29th day of June, 2020, by Derek Sowell, President of Heritage Sporting Club LLC. WITNESS my hand Ratliff aMI NOTARY PUBLIC Notratby Public y STATE OF COLORADO 0 NOTARY ID 20064041767 MY_ 420=0N E ICES 0&271242- 6! WELD COUNTY: {F�L�O r� Non cco o:� w BY a Y_ a -ft) OZ ATTEST. Weld ty Clerkhe Bra ��'"; "'"�� WELD COUNTY, COLORADO .W;(4foliev BOARD OF COUNTY COMMISSIONERS Deputy Cle ike Freeman, Chair of 12 JUL 13 2020 Document must be filed electronically. Paper documents are not accepted. Fees & forms are subject to change. For more information or to print copies of filed documents, visit www.sos.state.co.us. %L. -Fife Colorado Secretary of State Date and Time: 04/09/2018 09:50 AM ID Number: 20161559679 Document number: 20181296951 Amount Paid: $25.00 ABOVE SPACE FOR OFFICE USE ONLY Articles of Amendment filed pursuant to §7-90-301, et seq. and §7-80-209 of the Colorado Revised Statutes (C.R.S.) 1. For the entity, its ID number and entity name are ID number 20161559679 (Colorado Secretary of State ID number) Entity name Haven Sporting Club LLC 2. The new entity name (if applicable) is Heritage Sporting Club LLC 3. (If the following statement applies, adopt the statement by marking the box and include an attachment.) This document contains additional amendments or other information. 4. (Caution: Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal consequences. Read instructions before entering a date.) (If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.) The delayed effective date and, if applicable, time of this document is/are (mm/dd/yyyy hour: minute am/pm) Notice: Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that such document is such individual's act and deed, or that such individual in good faith believes such document is the act and deed of the person on whose behalf such individual is causing such document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S. and, if applicable, the constituent documents and the organic statutes, and that such individual in good faith believes the facts stated in such document are true and such document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is identified in this document as one who has caused it to be delivered. 5. The true name and mailing address of the individual causing the document to be delivered for filing are AMD_LLC Sowell Derek (Last) 1011 37th Ave Ct (First) (Middle) (Suffix) Suite 200 (Street name and number or Post Office Box information) Greeley CO 80634 (City) (State) (Postal/Zip Code) United States (Province — if applicable) (Country — if not US) Page 1 of 2 Rev. 12/20/2016 (If the following statement applies, adopt the statement by marking the box and include an attachment.) This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing. Disclaimer: This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should be addressed to the user's legal, business or tax advisor(s). AMD_LLC Page 2 of 2 Rev. 12/20/2016 Contract Form New Contract Request Entity Information Entity Name* FARMERS RESERVOIR AND IRRIGATION COMPANY Entity ID* @(0007812 Contract Name* IMPROVEMENTS AGREEMENT USR17-0012 FARMERS RESERVOIR AND IRRIGATION COMPANY Contract Status CTB REVIEW Contract ID 3858 Contract Lead* DRANDERSON ❑ New Entity? Parent Contract ID Requires Board Approval YES Contract Lead Email Department Project # dranderson@co.weld.co.us Contract Description * IMPROVEMENTS AGREEMENT USR17-0012 FARMERS RESERVOIR AND IRRIGATION COMPANY NO COLLATERAL REQUIRED Contract Description 2 Contract Type* AGREEMENT Amount * $0.00 Renewable* NO Automatic Renewal Grant IGA Department PUBLIC WORKS Department Email CM- PublicWorks@weidgov.com Department Head Email CM-PublicWorks- DeptHead@weldgov.com County Attorney BOB CHOATE County Attorney Email BCHOATE@CO.WELD .CO US Requested BOCC Agenda Date* 07/13/2020 Due Date 07/09/2020 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? NO If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in On6ase Contract Dates Effective Date Review Date* Renewal Date 0 7/0G/2021 Termination Notice Period Committed Delivery Date Expiration Date* 07/13/2021 Contact Information Contact Info Contact Name Purchasing Purchasing Approver CONSENT Approval Process Department Head JAY MCDONALD DH Approved Date 07/08/2020 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 07/13/2020 Originator DRANDERSON Contact Type Contact Email Finance Approver CONSENT Contact Phone 1 Contact Phone 2 Purchasing Approved Date 07/08/2020 Finance Approved Date 07/08/2020 Tyler Ref # AG 071320 Legal Counsel CONSENT Legal Counsel Approved Date 07/08/2020 Submit Hello