The URL can be used to link to this page

Browse Search

Home My WebLink About20192484.tiffasza' 66A2 0≥- fl g BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Improvements and Road Maintenance Agreement for: Great Western Railway of Colorado, LLC — SPRI 8-0011 DEPARTMENT: Public Works DATE: May 24, 2019 PERSON REQUESTING: Tisa Juanicorena Brief description of the issue: The Department of Public Works received a request from the applicant, Great Western Railway of Colorado, LLC, requesting that the Board of County Commissioners consider approving the Improvements and Road Maintenance Agreement for (SPR18-0011). 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 aceeptabTe. • This Agreement complies with the terms of the Site Plan Review Permit, as signed by the Director of Planning Services. 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 SPR 1 8-0011, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Sean P. Conway Mike Freeman, Pro -Tern Scott K. James Barbara Kirkmeyer, Chair Steve Moreno -j9 Approve Recommendation Schedule as Regular BOCC Hearing Item Other/Comments: Cc ?cot T3) 01/01/19 CG: Pw(T31£P1,PL( KRIDA) O7/ t5/ 19 e/: P -A/184-410°1")) 2019-2484 IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Great Western Railway of Colorado, LLC — SPR18-001 1 THIS AGREEMENT is made this 'A day of rn c:i.-r , 2019, by and between Great Western Railway of Colorado, LLC, a corporation organized under the laws of the State of Colorado, whose address is 252 Clayton Street, Floor 4, Denver, CO 80206-4814, hereinafter referred to as "Property Owner," authorized to do business in the State of Colorado, and the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, hereinafter referred to as "BOCC," 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: LOT B OF RECORDED EXEMPTION, RE -833; BEING PART OF THE El/2 NE1/4 OF SECTION 25, TOWNSHIP 6 NORTH, RANGE 67, AND THE Wl/2 NW1/4 OF SECTION 30, TOWNSHIP 6 NORTH, RANGE 66 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO hereinafter referred to as "the Property," and WHEREAS, Property Owner has received Administrative approval from the Department of Planning Services for SPR18-001 1, and WHEREAS, Property Owner acknowledges that the final approval of SPR18-0011 is conditional upon Property Owner's funding and/or construction of the road maintenance, when required in Part I., D.1.0, below, and future off -site improvements, when required in Part I., B., below. as described in this Agreement and if/when triggered, in the following incorporated exhibits: Exhibit A-1 — Future Improvements Costs of Construction, to be attached pursuant to Part I, B.3.0, below, Exhibit B-1 — Future Improvements Construction Schedule Triggers, to be attached pursuant to Part I, B.4.0, below, Exhibit C — Construction Plans, (if applicable, when required in Part I, B., below), Exhibit D — Plat Map (recorded simultaneously with this Agreement), and WHEREAS, Property Owner acknowledges they may not operate as described in SPRI8-001 1 until this Agreement is executed and the final Plat Map is recorded and accepted by County, and WHEREAS, the parties agree that the Property Owner shall provide collateral for future off -site improvements when 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. Not Applicable. 4503311 Pages: 1 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO III PISA 'I'NaMaIOhs!t II 1I 111 Great Western Railway of Colorado, LLC — SPR 18-001 I - IA/RMA Page 1 of 12 oZb/p- v2/t7 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 Owner shall design and construct required road improvements based on the amount of traffic being generated by the Property. The Property Owner's development does not currently meet the traffic safety triggers requiring the improvements specified below; however, off -site or phased improvements may be warranted in the future, pursuant to this Agreement. 1.1 Property Owner shall be required to design, obtain right-of-way, relocate utilities, and construct said auxiliary lanes into their site if/when all related traffic meets the following traffic triggers: • Property Owner shall design and construct a left deceleration/turn lane on CR 23 3/4 whenever traffic exceeds 10 vehicles per hour (VPH) turning left into the Property for an average daily peak hour. • Property Owner shall design and construct a right deceleration/turn lane on CR 23 3/4 whenever traffic exceeds 25 VPH turning right into the Property for an average daily peak hour. • Property Owner shall design and construct a right acceleration lane on CR 23 3/4 whenever traffic exceeds 50 VPH turning right out of the Property for an average daily peak hour. • If a crash history develops at the intersection of CR 23 3/4 and CR 64 3/4 that can be related directly back to traffic generated for this SPR, Property Owner will work with Weld County to determine and implement appropriate traffic mitigation measures. 1.2 If, in the County's opinion, the Property meets the traffic triggers set forth above, the County shall notify Property Owner in writing of the traffic triggers the County believes to have been met. Prior to the Property Owner's commencement of the responsibilities set forth in Part II., B.2.0, 3.0, 4.0, 5.0, and/or 6.0 of this Agreement, County shall provide Property Owner with a reasonable opportunity to review, comment upon, and supplement County's data, collection methodology, and determinations and/or modify the Property's traffic so that it is below the traffic triggers set forth above. Such reasonable opportunity shall not be less than ninety (90) days from the County's written notice to Property Owner. If, after said reasonable opportunity, the County believes the Property still meets the traffic triggers set forth above, County shall notify Property Owner in writing of the traffic triggers the County believes to have been met and the need for triggering improvements. 2.0 Property Owner's Responsibilities regarding Future Triggers. Property Owner's responsibilities for the design and construction of future off -site improvements shall be limited to that set forth for each particular trigger. Property Owner is solely responsible for the cost and construction of required improvements. These responsibilities may include but are not limited to the following, as applicable: design, surveys, utility locates, acquisition of ROW, if necessary, dedication of ROW, if necessary, ROW and Access Permits and fees, coordination with oil and gas operators and facilities and affected irrigation facilities and utilities, traffic control, and project safety during construction. Property Owner shall obey all applicable regulations issued by OSHA, CDOT, CDPHE, and other federal, State, or County regulatory agencies to the extent they do not interfere with the Interstate Commerce Commission Termination Act. 3.0 Cost of Construction Exhibit. When a trigger is met, the Property Owner shall submit Exhibit A-1 within six (6) months of being notified in writing regarding the need for the triggered improvements, 4303311 Pages: 2 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO liiIFdRIMAligli i'14Ja4FVINI ATIPAM N "III LLC — SPR18-001 I - IA/RMA 12 indicating the cost of construction estimates (engineer's estimate) to detail the costs used in determining the collateral requirement for the development. Construction costs must be obtained through a registered Colorado Engineer. A registered Colorado Engineer must sign and stamp the construction cost exhibit for sites that have project collateral. New or additional collateral may be required for the triggered improvements. If required, collateral shall be submitted at the same time as Exhibit A-1. Exhibit A-1 shall be attached to this Agreement and incorporated herein once approved by the County. Approval shall not be unreasonably withheld by the County. 4.0 Construction Schedule Exhibit. When a trigger is met, the Property Owner shall submit Exhibit B- 1 within six (6) months of being notified in writing regarding the need for the triggered improvements, indicating the construction schedule, and including completion date for the improvements. Property owner shall not commence construction of improvements prior to approval of the Construction Plans and receipt of the appropriate Grading Permit, Access Permit, and/or ROW Permit. Property Owner shall complete all improvements in accordance with the construction schedule exhibit. The construction of the triggered improvements shall be completed within the specified timeframe, which may not exceed three (3) years from the date the trigger is first met and shall be completed as follows: Year 1 design deadline; Year 2 ROW/Utilities; Year 3 Construction. Property Owner shall collateralize 100% of the cost of the construction improvements, including design, right-of-way, and utility relocation cost within six (6) months of being notified in writing of meeting the triggers. Exhibit B-1 shall be attached to this Agreement and incorporated herein once approved by the County. Approval shall not be unreasonably withheld by the County. 5.0 Collateral. Collateral for any additional improvements required by the triggers may be required by the BOCC. Collateral is accepted and released by the BOCC pursuant to the Weld County Code. Additional information about collateral is outlined in Part II., B. of this Agreement. 6.0 As -Built Plans. "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or once the Property Owner has completed improvements as described in Part II., B.3.2.3, of this Agreement. Property Owner shall also provide an electronic copy of the as -built drawings. The as -built drawings shall be stamped, signed, and dated by a licensed and registered Professional Land Surveyor or Professional Engineer. C. Haul Routes: The Property Owner shall be financially responsible for its proportional share of the associated costs for maintaining and/or improving designated haul/travel routes when required in Part I., D. of this Agreement. 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property: 1) 1/2 mile north and 1/4 mile south on CR 23 3/4. 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 23 3/4 and travel north -south to the nearest paved road for further dispersal. 3.0 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. 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the above - mentioned haul/travel route fora 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 4503311 Pages: 3 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO iii 1 �1�I' ll�,ti'1��4CG +'l�hYrl �U�Ml�I �k� �114 1111 LLC—SPRI8-00II- IA/RMA 12 (6) months, or requests for one (1) or more deviations within a twelve (12) -month period shall authorize the County to change the haul/travel routes designated herein, and provide notice to the Property Owner. 5.0 Haul Route Signage. Property Owner shall install travel route signs, if applicable, as per Manual of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility and which clearly depict County approved travel routes. 6.0 No Deviation from Permitted Haul Routes. Except as authorized by the BOCC pursuant to this Agreement, no use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. D. Maintenance Requirements: 1.0 Dust Control. Property Owner shall be financially responsible for its proportional share of reasonable dust control on unpaved designated haul/travel routes after commencement of operation. The amount and extent of reasonable dust control will be determined by site -specific conditions at the time, as determined exclusively by County personnel. Dust abatement along the relevant haul/travel routes is expected to occur approximately two (2) to five (5) times per year. Dust abatement is required for roads with more than 200 vehicles per day, per Section 8-6-100 of the Weld County Code. 2.0 Repair. Property Owner shall be financially responsible for its proportional share of the reasonable excavation, patching, and pavement repair on designated haul/travel routes. The amount and extent of reasonable repair and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. 3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel route by project traffic that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify Property Owner in writing of such Significant Damage. Property Owner shall identify the repair required and shall consult with County on the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent) within seventy-two (72) hours after receipt of such written notice and shall commence such repair within ninety-six (96) hours after receipt of such written notice. If Property Owner identifies Significant Damage prior to receiving written notice thereof from County, Property Owner may commence repair of such Significant Damage and shall concurrently notify County of the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent). 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 reasonable paving measures in order to protect the public health, safety, and welfare, and the County has budgeted sufficient funds for the following calendar year to pay its share of the Off -Site Improvement/Repair Costs, County shall notify Property Owner in writing that the reasonable Off -Site Improvements/Repairs shall be undertaken. . 4.1 In County's sole discretion, County may undertake the repairs and/or improvements. Property Owner's payment for its Proportionate Share of the reasonable 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 in writing of County's preliminary determination and assessment of Property Owner's proportional share of costs of reasonable maintenance, repair, or improvements to Property Owner's designated 4503311 Pages: 4 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIIII cmacoler 1arciairmilm4rh 1I III o, LLC — SPRI&001 I - IA/RMA of 12 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. 7.0 Annual Road Inspection. The 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 reasonable road repair/improvement/maintenance work is to be performed during that construction season. Written notification to the Property Owner of the required roadway repairs will be given as soon as the data becomes available. 8.0 Notification. The County shall notify Property Owner in writing of County's preliminary determination and assessment of Property Owner's proportionate share of costs of reasonable 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. PART II: GENERAL PROVISIONS A. Engineering and Construction Requirements: 1.0 Engineering Services. Property Owner shall furnish to County, at its own expense, all engineering services in connection with the design and construction of the off -site improvements and all on -site drainage -related structures if required by any Municipal Separate Storm Sewer System (MS4) permit, as identified on the accepted Construction Plans and according to the construction schedule set forth in the construction schedule exhibits. The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. The required engineering services shall consist of, but not be limited to: surveys, designs, plans and profiles, estimates, construction supervision, and the submission of necessary documents to the County. 2.0 Rights -of -Way and Easements. Before commencing the construction of any off -site improvements herein agreed upon for public ROW or easements, Property Owner shall acquire, at its sole expense, good and sufficient ROW and easements made necessary for the improvements. The County will not exercise eminent domain on behalf of Property Owner, if necessary. All such ROW and easements for the construction of roads to be accepted by the County shall be conveyed to the County on County -approved forms and the documents of conveyance shall be furnished to the County for acceptance with express written authority of the BOCC and recording. 3.0 Construction. Property Owner shall furnish and install, at its own expense, the improvements (and any drainage -related structures required by any MS4 permit) identified on the accepted Exhibits and shall be solely responsible for the costs listed on the cost of construction exhibits, with the improvements being completed also in accordance with the schedule set forth in the construction schedule exhibits. The BOCC, at its option, may grant an extension of the time of completion set forth in construction schedule exhibits 03311 03:17 PM R Fee:$ es: 5 of 12 07/03/2019 0.00 Carly Koppel, Clerk and Recorder, Weld County, CO VIII RIPON' ►hi►��Y4luZf�►►�I +kY�k �I III ido, 1.1.C — SPR IS -001 I - IA/RMA 5 of 12 stated herein upon application by the Property Owner. Said construction shall be in strict conformance to the plans and drawings accepted by the County and the specifications adopted by the County. 4.0 Testing. Property Owner shall employ, at its own expense, a qualified testing company previously approved by the County to perform all testing of materials or construction; and shall furnish co ies of test results to the County. If County discovers inconsistencies in the testing results, 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 and the Property Owner. At all times during said construction, the County shall have the right to test and inspect material and work, or to require testing and inspection of material and work at Property Owner's reasonable 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 reasonable expense of Property Owner. 5.0 Construction Standards. Design and construction of all off -site improvements shall conform to the current version of CDOT's "Standard Specifications for Road and Bridge Construction" and the Weld County Engineering and Construction Guidelines. 6.0 Traffic Control. Prior to any construction in County and/or State ROW, and as a condition of issuance of any ROW or Access Permit, the Property Owner shall submit a traffic control plan for County review. During construction, appropriate safety signage shall be posted in accordance with the then -current version of the Manual of Uniform Traffic Control Devices. B. Collateral: 1.0 General Requirements for Collateral. Property Owner shall provide to County the necessary collateral to guarantee all of Property Owner's obligations under this Agreement: (1) Project Collateral is required for completion of off -site improvements, as described in this Agreement; and (2) Warranty Collateral is required for all off -site improvements during the two-year warranty period. Collateral acceptance and release is governed by the Weld County Code. 1.1 Project Collateral shall be submitted to guarantee completion of off -site improvements identified in the Exhibits. Project Collateral must be submitted in an amount equal to 100% of the value of the improvements, as calculated in the cost of construction exhibits. Project collateral must be submitted with the costs of construction exhibit after an improvement has been triggered pursuant to Part I.B.. In the event that Property Owner fails to adequately complete the required improvements, County may, in its sole discretion, access Project Collateral for the sole 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. 1.2 Warranty Collateral shall be submitted and held by the County until release after the two- year warranty period following the County's initial approval of the improvements. Warranty Collateral shall be in an amount equal to 15% of Project Collateral. In the event that Property Owner fails to adequately complete or repair improvements during the warranty period, County may, in its sole discretion, access Warranty Collateral for the sole 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. 4503311 Pages: 6 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO II FARM0144111101fd i L,LC — SPR 18-001 1 - IA/RMA )f 12 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 Owner. Warranty Collateral may be released upon the approval of the County at the end of the two-year warranty period. 3.2 Request for Release of Collateral. Prior to release of collateral by the County for the entire project or for a portion of the project, the Property Owner must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of Substantial Compliance shall state that the project or a portion of the project has been completed in substantial compliance with accepted plans and specifications documenting the following: 3.2.1 The Property Owner's Engineer or his representative has made regular on -site inspections during the course of construction and the construction plans utilized are the same as those accepted by the 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 the CDOT Materials Manual at that time. 3.2.3 "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or at such time as the Property Owner has completed improvements as shown on the Exhibit C and/or Exhibit D, and shall be stamped and approved by an Engineer registered in the State of Colorado, if an Engineer was initially required for the project. The Property Owner's Engineer shall certify that the project "as -built" is in substantial compliance with the plans and specifications as approved, or that any material deviations have received prior written acceptance from 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 the improvements as provided in this Agreement within a reasonable time. Upon approval, the BOCC may release said collateral. The release of collateral shall not be unreasonably withheld. C. Acceptance of Improvements: 1.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, Property Owner shall contact the Weld County Department of Public Works and request an inspection of such improvements. Upon request, County personnel will initiate the inspection, approval, and acceptance process within a reasonable time. 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 Owner shall submit to the Weld County Department of Public Works a Statement of Substantial Compliance by Property Owner's Engineer along with "as -built" 4503311 Pages: 7 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppel, Clerk and Recorder, Weld County, CO VIII NU��ruI'I'�r ilk' '��'��Ih�r'�i'�IRI�'�I�I�•I 11111 LC SPR18-0011 - IA/RMA 2 drawings as required in Part II, B.3.2.3, above, and shall request County inspection of the Off -Site Improvements. County personnel shall then inspect the improvements within a reasonable time. If the County determines the improvements were not constructed in accordance with the Construction Plans, the County shall direct the Property Owner to correct the deficiencies. If the County determines the improvements were constructed in accordance with the Construction Plans, the County shall 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 Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies in writing, within a reasonable time. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. County personnel shall re -inspect the improvements after notification from the Property Owner that said deficiencies have been corrected within a reasonable time. If the County personnel finds that the improvements are constructed according to County standards, he or she shall approve the improvements within a reasonable time. Such final approval shall authorize the Property Owner to request the BOCC to release the Warranty Collateral. 2.3 Placement of Improvements into Service Prior to County Approval. If requested by the Property Owner and agreed by the County, portions of the improvements may be placed in service when completed according to the schedule shown on the construction schedule exhibit, but such use and operation shall not alone constitute an approval or acceptance of said portions of the improvements. County may, at its option, issue building permits for construction for which the improvements detailed herein have been started but not completed according to the schedule shown on the construction schedule exhibit, and may continue to issue building permits so long as the progress of work on the improvements is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Property Owner. D. Access and Right -of -Way Permits: 1.0 Access Permits. Property Owner shall not use any access onto any County road unless and until an access permit has been issued by the Department of 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 V of Chapter 12 of the Weld County Code. 2.0 Right -of -Way (ROW) Permits. Per Article IV of Chapter 12 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. Enforcement and Remedies: 1.0 Violation of Terms of Agreement. If in County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify Property Owner in writing of its belief that the Agreement has been violated within a reasonable time and shall state with specificity the facts and circumstances which County believes constitute the violation. Property Owner shall have thirty (30) days within which to either cure the violation, initiate actions to remedy the violation, or demonstrate compliance. If, after thirty (30) days have elapsed, County believes in good faith that the violation is continuing, County may consider Property Owner to be in breach of this Agreement. 4503311 Pages : 8 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO .1 LC— SPRI8-001I -IA/RMA I��, l rjRy�41ii'�'I ,h iyAI II II INICOVIIIt'i Yi�Jti �� III 12 2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Owner has violated the terms of this Agreement, and has failed to correct said violation, County may exercise any or all of the following remedies, or any other remedy available in law or equity. 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 pennits, or any other permit issued by any department of the County, but only until such time as it is determined by the County or Court Action that the Property owner was not in violation of the terms of this Agreement or has corrected said violation of this Agreement. 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 Recission of SPR. Property Owner acknowledges that unjustified failure to comply with the terms of this Agreement may constitute cause to rescind the SPR, and County may exercise this option in its sole discretion by proceeding with rescission 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 Not Applicable. 3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Property Owner's complete cessation of all activities permitted by the SPR 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 SPR has been inactive for three (3) consecutive years. Property Owner shall not be entitled to a release of Project or Warranty Collateral unless and until the improvements required by this Agreement are completed. 3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's execution of a new Improvements Agreement with a new property owner or operator who has purchased the Property or has assumed the operation of the business permitted by the SPR, and intends to make use of the rights and privileges available to it through the then existing SPR. 3.4 Rescission of SPR. This Agreement shall terminate following County's revocation of Property Owner's SPR, except that the Property Owner shall only be released from this Agreement after the successful completion of all improvements required under this Agreement, which may be completed by County after accessing Property Owner's collateral if Property Owner fails to complete such improvements. 4503311 Pages: 9 of 12 07/03/2019 03:17 PM R Fee:$0.00 F. General Provisions: Carly Koppes, Clerk and Recorder, Weld County, CO VIII l��IWA►uti� ►td�Lh�i,l'tl�� h91 F�'rY �I II 1 Great Western Railway of Colorado. LLC — SPR 18-00 I I - IA/RMA Page 9 of 12 1.0 Successors and Assigns. 1.1 Property Owner may not delegate, transfer, or assign this Agreement in whole or in part, without the prior express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. Consent to a delegation or an assignment will not be unreasonably withheld by County. In such case, Property Owner's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with the successor owner of the property. 1.2 County's rights and obligations under this Agreement shall automatically be delegated, transferred, or assigned to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement. 2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 4.0 Amendment or Modification. Any amendments or modifications to this Agreement shall be in writing and signed by both parties. 5.0 No Third -Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 6.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 7.0 Choice of Law/Jurisdiction. Colorado law, federal 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, Federal District Court for the District of Colorado, or Surface Transportation Board shall have exclusive jurisdiction to resolve said dispute. 8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Owner concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney fees and/or legal costs incurred by or on its own behalf. 9.0 Release of Liability. Property Owner shall indemnify and hold harmless the County from any and all liability loss and damage County may suffer as a result of all suits, actions, or claims of every nature and description caused by, arising from, or on account of the design and construction of improvements, and pay any and all judgments rendered against the County on account of any such suit, action or claim, and 4503311 Pages: 10 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII FMK Y )1IIP L "Ill LLC — SPRI8-00I I - IA/RMA f 12 notwithstanding Part II, F.7.0 above, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim except when the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise . All contractors and other employees engaged in construction of the improvements shall maintain adequate worker's compensation insurance and public liability insurance coverage, and shall operate in strict accordance with the laws and regulations of the State of Colorado governing occupational safety and health. 10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra- judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. If requested by the County, Property Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement within five (5) days of receiving such request. 12.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement, understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with the attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. 13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential conflict between any term in this Agreement and the Resolution of the Board of County Commissioners approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the event of a discrepancy between this Agreement and the Weld County Code in effect at the time of the Agreement, the terms of the Weld County Code shall control. 4803311 Pages: 11 of 12 07/03/2019 03:17 PM R Fee:$0.00 Carly Koppes, Clark and Recorder, Weld County, CO III III Great Western Railway of Colorado, LLC — SPR I8-001 l - IA/RMA Page 11 of 12 PROPERTY By: Name: Title: STATE OF COLORADO 4( County of Welfl— estern Railway of Colorado, LLC ) Date: '),3\ SS. ROBIN HOLLAND NOTARY PUBLIC STATE OF COLORADO NOTARY ID #20164019290 MY COMMISSION EXPIRES 05-31.2020 i The foregoing instrument was acknowledged before me this 2011 by C ,ASS YNJLY WITNESS my hand and official seal. LESSEE/OPERATOR (IF APPLICABLE): By: Name: Title: STATE OF COLORADO County of Weld Notary Public ay of 71(V{ 4 (e Date: t n ss. The foregoing instrument was acknowledged before me this _ day of 201 , by WITNESS my hand and official seal. Notary Public WELD COUNTY: ATTEST: d�®j Weld County Clerk to the Board BY: eputy Clerk to the Board � r� rJ ra Kirkmeyer, Ch tir Great Western RD OF COUNTY COMMISSIONERS COUNTY, COLORADO o, LLC — SPRI8-0011 - IA/RMA Page 12 of 12 o U� - 0 U 4 �� o•v° ICE Nu. •Lo IXce UL r 2019 2Zo Contract Form New Contract Request Entity Information Entity Name GREAT WESTERN RAILWAY OF COLORADO DR 43 Contract Name* IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT Contract Status CTB REVIEW Contract It) 2773 Contract Lead* TJUANICORENA ❑ New Entity? Parent Contract ID Requires Board YES Contract Lead Email Department Project # tjuanicorena c@co weld co us Contract Description* IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT SPR1t -0011 NO COLLATERAL REQUIRED Contract Description 2 Contract Type * AGREEMENT Amount * SD 00 Renewable* NO Automatic Renewal tae meat PUBLIC ' 'ORKS Email C M- PublicWorks cf3 weldgov corn Department Head Email C IMP a bl he Works - DeotHeadiEcjweldgofycorn County Attorney GENERAL COUNTY A I I ORNEY EMAIL County Attorney Email CM- COUNTYATFORNEY@WELD GOV.COM Requested B©CC Agenda Date* 0612412019 Due Date 06/20/2019 VAII 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 OnBase Contract Dates Effective Date Review Date * Renewal Date 06/24/2020 Termination Notice Committed Delivery Date Expiration Date 06'302021 Contact Information Contact Info Contact Name Purchasing Purchasing Approver CONSENT Approval Process Department Head JAY MCDONALD DH Approved Date 06/2612019 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 07/0112019 Originator TJUANICORENA Contact Type Contact Email Finance Approver CONSENT Contact Phone 1 Purchasing Approved Date 06126/2019 Finance Approved Date D6.1126612019 Tyler Ref # AG 070119 Legal Counsel CONSENT Contact Phone 2 Legal Counsel Approved Date 06,126/2019 Submit Hello