HomeMy WebLinkAbout20183539.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Improvements Agreement for:
Que and Debora Fullmer— USR17-0061
DEPARTMENT: Public Works DATE: 10/24/2018
PERSON REQUESTING: Evan Pinkham
Brief description of the issue:
The Department of Public Works received a request from the applicant, Que and Debora Fullmer, requesting that
the Board of County Commissioners consider approving the Improvements Agreement for the livestock
confinement operation (USR 17-0061). No collateral is required with this agreement at this time.
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.
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 (USR I 7-0061), and that this item be placed on the next regularly scheduled
BOCC Hearing, as part of the Consent Agenda.
Approve
Recommendation
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro-Tem
Steve Moreno, Chair
Schedule as Regular
B0CC Hearing Item Other/Comments:
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11/15/18'
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2018-3539
IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY RI( \RDING O1,1,XFERAL 1 OR I\ IPRO\ 1- \ H N I S
t�)ue and Debora Fullmer - USR17-0061
THIS AGREEMENT is made this 5 day of 201 -2 by and between Que and
Debora Fullmer, a corporation organized under the laws of the State of Colorado. whose address is 3200
South Highway 27, Syracuse, KS 67878, hereinafter referred to as "Property Owner." authorized to do
business in the State of Kansas, 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:
Lots C and D of Recorded Exemption, RECX14-0014, being part of the
WW'1l2 EF2, and Lot D of Recorded Exemption, RECX14-0015, being part
of the E1/2 E1/2, all in Section 32, 'township 4 North, Range 64 West of
the 6th P.I., Weld County, Colorado
hereinafter referred to as `the Property," and
WHEREAS, Property Owner has received Board of County Commissioner approval of USR17-
0061, and
WHEREAS, Property. Owner acknowledges that the final approval of USR17-0061 is conditional
upon Property Owner's funding and;' or construction of the off -site improvements. when triggered, and road
maintenance described in this Agreement. At the time Of -site improvements are triggered they shall be
depicted in the following incorporated exhibits when triggered in the future as directed in Part 1.13., Future
Off -Site Improvements:
Exhibit A-1 Off -Site Costs of Construction,
Exhibit B-1 — Off -Site Construction Schedule,
Exhibit A-2. — Future Improvements Costs of ('onstruction (to be attached per section B.3.0),
Exhibit B-2 Future Improvements Construction Schedule Triggers (to be attached per section 13.4.0),
Exhibit C — Construction Plans,
Exhibit 1) -- Plat Map (recorded simultaneously with this Agreement)
WHEREAS, Property Owner acknowledges that pursuant to the provisions of Weld County Code
See. 23-2-290. the failure to commence construction of the improvements outlined herein within three (3)
years of the approval of USR17-0061 may result in the revocation or suspension of USR17-0061, upon
consideration and order of the Board of County Commissioners. and
WHEREAS, the parties agree that the Property Owner shall provide collateral for off -site
improvements required by this Agreement when the Board of County Commissioners approves this
Agreement.t )ff-site improvements shall be required when triggers are met.
NOW, TIIEREFORF:. IN CONSIDERATION ()F the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant and agree as follows:
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PART 1: SITE SPECIFIC PROVISIONS
A. Off -Site Improvements (as required by the I3OCC): When Off -site improvements are triggered,
the Property Owner shall be responsible for the construction of certain oft -site safety improvements
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 ROW
connecting to the county road system, and off -site drainage and signage installations. as indicated on the
accepted Exhibits. On -Site improvements that create more run-off than the historical amount may require
off -site drainage improvements to roads and ROW. Any approved access point(s) improvements will
include standard County approved tracking control. and may include a double cattle guard set (one right
after the other). placed back to back across the entire width of the access, to ensure a complete revolution
of the truck tires in order minimize the tracking of mud and debris onto the adjacent County road.
1.0 Road Improvements Responsibilities. Property Owner is solely responsible for all the off -site
designated improvements when triggers are met.These responsibilities may include but are not limited to
the following: 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_ CLX)T, CDC', and other federal. state, or
county regulatory agencies.
2.0 Cost of Construction Exhibit. The cost of construction estimates (engineers estimate) as identified
in Exhibit A-1 detail the costs used in determining the collateral requirement for the off -site improvements
related to the development. A registered Colorado Engineer must sign and stamp the construction cost
exhibit on Exhibit A-1. If more than three (3) years have passed since the last construction cost estimate
was provided, the Property Owner shall provide an updated construction cost estimate prior to the start of
construction.
3.0 Construction Schedule Exhibit. Exhibit B-1 is provided by the Property Owner indicating the
construction schedule for all off -site improvements. when off -site improvements are triggered, including
an anticipated completion date. Property Owner shall not commence construction of any improvements,
record plat, or receive any permitting prior to approval of the of this Agreement. the attached Exhibit C.
receipt of the appropriate Grading Permit, Access Permit. and'or ROW Permit. if applicable. Property
Owner shall substantially complete all improvements in accordance with Exhibit B-1 in order to request
the warranty period begin. In the event that the construction schedule is not current. the Property Owner
shall submit a revised construction schedule.
4.0 O1T-site Improvements Collateral. As required, collateral is accepted and released by the Board of
County Commissioners pursuant to the Weld County Code. Additional information about collateral is
outlined in Part II.13 of this Agreement.
5.0 BAs -Built Plans. -As-built— plans shall be submitted at the time the letter requesting release of
collateral is submitted or once the Property Owner has completed improvements as described in Part II.B,
Subsection 3.2.3. of this Agreement. Property Owner shall also provide an electronic cope 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.
B. Future Off -Site Improvements:
1.0 Traffic Triggers. When the Property's traffic reaches certain safety thresholds as set forth in this
agreement, the Property Owner shall design and construct certain road improvements based on the amount
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of traffic being generated by the site. Property Owner's development may not currently meet the traffic
safety triggers requiring the improvements specified below. However, off -site or phased improvements may
be warranted in the future.
Property Owner is required to design, obtain right-of-way, relocate utilities, and construct said auxiliary
lanes into their site when all traffic to from the Property meets the following traffic triggers:
I) Property Owner shall design and construct a left deceleration/turn lane on CR 40 or CR 53
whenever traffic exceeds 10 vehicles per hour (VPI�) turning left into the Property for an
average daily peak hour.
2) Property Owner shall design and construct a right deceleration'turn lane on CR 40 or CR 53
is henever traffic exceeds 25 y'PIi turning right into the Property for an average daily peak hour.
3) Property Owner shall design and construct a right acceleration lane on CR 40 or CR 53
whenever traf#it exceeds 50 VPI-1 turning right out of the Property for an average daily peak
hour.
4) Property Owner shall design and construct a left acceleration lane on CR -10 or CR 53 whenever
such a lane would he a benefit to the safety and operation of the roadway. The County, in its
sole discretion, shall determine if a left acceleration lane is required.
2.0 Property Owner's Respon.sibilrtres when Future Triggers are Met. Property Owner is solely
responsible for all designated improvements and their cost. These responsibilities 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 OS1I'_ CDOT, COPAL and other federal,
State. or County regulatory agencies.
3.0 Cost of Construction Exhibit. When the trigger is met the Property Owner shall submit Exhibit A-
2 within 6 months of being notified regarding the need for the triggered improvements, indicating the cost
of construction estimates (engineer's estimate) to detail the costs used in determining the collateral
requirement for the development. Construction costs must be obtained through a registered Colorado
Engineer. A registered Colorado Engineer must sign and stamp the construction cost exhibit for sites that
have project collateral. New or additional collateral may be required for the triggered improvements. If
required, collateral shall be submitted at the same time as Exhibit A-2. Exhibit A-2 shall be attached to this
Agreement and incorporated herein once approved by the County.
4.0 Construction Schedule Exhibit. When the trigger is met the Property Owner shall submit Exhibit
13-2 within 6 months of being notified regarding the need for the triggered improvements, indicating the
construction schedule. 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. Year 1 design deadline; Year 2 ROB Utilities; Year 3 Construction.
Property Owner shall collateralize I00°o of the cost of the construction improvements, including design,
right-of-way, and utility relocation cost within six months of being notified of meeting the triggers. Exhibit
B-2 shall be attached to this Agreement and incorporated herein once approved by the County.
5.0 Collateral. Collateral for any additional improvements required by the triggers may be required by
the 13OCC. Collateral.is accepted and released by the Board of County Commissioners pursuant to the
Weld County Code. Additional information about collateral is outlined in Part 11.8 of this Agreement.
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6.0 As -Built Plans. "As -built" plans shall be submitted at the time the letter requesting release of
collateral is submitted or once the Property Owner has completed improvements as described in Part II.B,
Subsection 3.2.3, of this Agreement. Property Owner shall also provide an electronic copy of the as -built
drawings. The as -built drawings shall be stamped, signed, and dated by a licensed and registered
Professional Land Surveyor or Professional Engineer.
C. Haul Routes: The Property Owner shall be financially responsible for its proportional share of the
County's costs associated with maintaining an&or improving designated haul/travel routes.
1.0 Haul Routes. The following roads are designated as haul'travel routes for the Property:
1) North and South on CR 53, and
2) East and West on CR 40
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 40 and CR 53 and travel
east-west/north-south to the nearest 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 haultravel route for a limited period (six months or less), Weld County Public Works may
authorize, in writing, the deviation. In that circumstance, haul'travel vehicles will utilize paved county roads
whenever possible. A deviation from the established haul'travel route lasting more than six (6) months or
requests for one (1) or more deviations within a 12 -month period shall authorize the County to change the
hau1'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 Board pursuant to this
Agreement, no use of any roads other than those specifically authorized for use in this Agreement is
permitted without the prior written amendment of this Agreement.
D. Maintenance Requirements:
1.0 Off -site recuning maintenance, if applicable, as required by the Board
2.0 Dust Control. Property Owner shall be financially responsible for its proportional share of dust
control on unpaved designated haulitravel routes after commencement of operation. The amount and extent
of dust control will be determined by site -specific conditions at the time, as determined exclusively by
County personnel. Dust abatement along the relevant haultravel routes is expected to occur approximately
two to five times per year. Dust abatement is required for roads with more than 200 vehicles per day, per
section 8-6-100 of the \Veld County Code.
2.1 Dust Control During, Construction. If necessary, as determined by the County, the Property
Owner shall cause to be performed within 30 days of notification, at its sole expense. dust control
by a contractor approved by Weld County Public Works during the construction period of the
development.
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3.0 Repair. Property Owner shall be financially responsible for its proportional share of excavation,
patching, and pavement repair on designated haul travel routes. The amount and extent of repair and paving
measures will be determined by site -specific conditions at the time_ as determined exclusively by County
personnel.
4.0 Need for Immediate Repairs: In the event of damage to a designated haul travel route by project
traffic that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection. notify Property Owner of such Significant Damage.
Property Owner shall identify the repair required and shall consult with County on the extent, type, timing,
materials and duality of repair (i.e. temporary versus permanent) within twenty-four (24) hours after receipt
of such notice and shall commence such repair IN ithin forty-eight (48) hours after receipt of such notice. If
such repair is not commenced within such forty-eight (48) hour period. County shall have the right to draw
on the Road Maintenance Collateral and use such funds to perform such repair. If Property Owner identifies
Significant Damage prior to receiving notice thereof from County, Property Owner may commence repair
of such Significant Damage and shall concurrently notify County of the extent, type. timing, materials and
quality of repair (i.e. temporary versus permanent).
5.0 Repair of Road: On or before December 31 of the calendar year in which County staff has
determined through site analysis and/or pavement testing that a particular haul/travel route road portion will
require paving measures in order to protect the public health, safety. and welfare. and the County has
budgeted sufficient funds for the following calendar Year to pay its share of the Off -Site
Improvement:Repair Costs. County shall notify Property (inner in writing that the Off -Site
Improvements Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of the
need to undertake the road maintenance repairs and'or improvements. Property Owner shall submit Off -
Site Construction Plans and Cost Estimates to County for review. Property Owner shall have sole
responsibility for the completion of the repairs and'or improvements on or before December 15 of the year
following County's notice of the need for repairs.
5.1 In County's sole discretion. County may undertake the repairs and/or improvements.
Property Owner's payment for its Proportionate Slime of the road repairs improvements will be
calculated as determined in this Agreement. Property Owner will be invoiced accordingly for those
proportional share costs.
6.0 Calculation of PropertyOwner'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 tsrees to pay such proportional share of costs within
30 days of receiving an invoice from County.
7.0 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 improvemcntmaintenance 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!improvementmaintenance 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.
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8.0 Notification. The County shall notify Property Owner of County's preliminary determination and
assessment of Property Owner's proportionate share of costs of maintenance. repair, or improvements to
Property Owner's designated haulitravel routes. Prior to County's final determination and assessment.
County shall provide Property Owner Nvith 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 2: 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,
identified on the accepted Construction Plans 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. All such ROW and easements for the construction of roads
to he 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.
..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 Board
of County Commissioners, at its option, may grant an extension of the time of completion set forth in
construction schedule exhibits stated herein upon application by the Property Owner. Said construction
shall be in strict conformance to the plans and drawings accepted by the County and the specifications
adopted bv the County.
4.0 Testing. Property Owner shall employ. at its own expense, a qualified testing company previously
approved by the County to perform all testing of materials or construction: and shall furnish copies of test
results to the County. If County discovers inconsistencies in the testing results, Property Owner shall
employ at its expense a third party qualified testing company approved bycounty. Such third party shall
furnish the certified results of all such testing to the County. At all times during said construction, the
County shall have the right to test and inspect material and work, or to require testing and inspection of
material and work at Property Owner's expense. Any material or work not conforming to the approved
plans and specifications. including but not limited to damages to property adjacent to the construction plan.
area shall be repaired. removed or replaced to the satisfaction of the County at the expense of Property
Owner.
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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 NIanua] of Uniform Traffic Control Devices.
B. Collateral:
1.0 General Requirements for Collateral. Property Owner shall provide to County collateral to
guarantee all of Property Owner's obligations under this Agreement: ( I ) 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, and (3) RoacLi fainieraance Collateral is
required to be kept in place for the life of the permit. project. 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°0 of the
value of the improvements, as calculated in the cost of construction exhibits. Project Collateral
must be submitted at the time of execution of the Agreement, unless otherwise directed by the
Board of County Commissioners. In the event that Property Owner fails to adequately complete
the required improvements, County may, in its sole discretion, access Project Collateral for the
purpose of completing such improvements. It may be necessary to provide additional collateral in
the event the cost estimate is older than three (3) years. NO NV( )Rh SHALL COMMENCE E UNTIL
PROJECT COLL:yTI:RAL IIAS BEEN SUB\TITTEI) :'AND .'CCEPTED BY THE COUNTY.
1.2 \ 'arranty 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°o of Project Collateral. In the event that Property Owner
fails to adequately complete or repair improvements during the warranty period. County may, in
its sole discretion, access Warranty Collateral for the purpose of completing such improvements.
1.3 Road Maintenance Collateral shall be submitted and held by County for the life of the
development. Road Maintenance Collateral is SS.600 for developments with paved designated
travel routes. and S2.400 for developments with unpaved designated travel routes. The Road
Maintenance Collateral may be accessed by County if, following notification to Property Owner of
required roadway safety related repairs or maintenance (including dust control). Property Owner
fails to perform said repairs within the time allowed in County's notification. If any of this collateral
shall be collected by County, Property Owner shall replace the amount. plus interest, within six (6)
months. If no Project Collateral is required to be submitted, Road Maintenance Collateral shall be
submitted at the time of execution of this Agreement.
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 -SO 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.
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5.1 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 from and 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. Road Maintenance Collateral may be
withheld from and at the time of release of Warranty Collateral. or may be submitted separately by
Property ( )caner.
5.2 Request for Release of Collateral. Prior to release of collateral by Weld County for the
entire project or for a portion of the project. the Property Owner must present a Statement of
Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of
Substantial Compliance shall state that the project or a portion of the project has been completed
in substantial compliance with accepted plans and specifications documenting the following:
3.2.1 The Property Owner's Engineer or his representative has made regular on -site
inspections during the course of construction and the construction plans utilized
are the same as those accepted by Weld County.
3.2.2 For the improvements to public rights -of -way or easements, test results must be
submitted for all phases of this project as per Colorado Department of'
Transportation (CDOT) Schedule for minimum materials sampling. testing and
inspections found in COOT Materials Manual.
"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 a 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.
5.5 County's Response to Request for Release of Collateral. Following a written request for
release of collateral, County personnel will inspect the improvements as provided in this
Agreement. Upon approval. the Board of County Commissioners may release said collateral.
C. zkeceptance of Improvements:
1.0 Acceptance of Off -Site Improvements: I;pon 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.
2.0 Inspection, Approval. and 1LeepLince Process:
2.1 Upon completion of construction of all off -site improvements as described in the
Construction Plans. Properly 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"
drawings as required in B.3.2.3. above, and shall request County inspection of the Off -Site
Improvements. County personnel shall then inspect the improvements. If the County determines
the improvements were not constructed in aceordance with the Construction Plans, the County shall
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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 warrants' period. County Public Works personnel shall, upon
request by the Property (honer, inspect the subject improvements, and notify the Property Owner
of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the
deficiencies. County personnel shall re -inspect the improvements after notification from the
Property Owner that said deficiencies have been corrected. If the County personnel finds that the
improvements are constructed according to County standards, he or she shall approve the
improvements. Such final approval shall authorize the Property Owner to request the Board of
County Commissioners to release the Warranty Collateral.
2.3 Placement of Improvements into Service Prior to County Approval. If requested by the
Property Owner and agreed by the County, portions of the improvements may be placed in service
when completed according to the schedule shown on the construction schedule exhibit, but such
use and operation shall not alone constitute an approval or acceptance of said portions of the
improvements. County may, at its option, issue building permits for construction for which the
improvements detailed herein have been started but not completed according to the schedule shown
on the construction schedule exhibit. and may continue to issue building permits so long as the
progress of work on the improvements is satisfactory to the County. and all terms of this Agreement
have been faithfully kept by Property Owner.
D. Access and Right -of -Way Permits:
1.0 Access Permits. Property Owner- shall not use any access onto any Count 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 RCM' 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 of its belief that the Agreement has been
violated and shall state with specificity the facts and circumstances which County believes constitute the
violation. Property Owner shall have fifteen (15) days within which to either cure the violation or
demonstrate compliance. If after fifteen (15) days have elapsed, County believes in good faith that the
violation is continuing. County may consider Property Owner to be in breach of this Agreement.
2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Owner
Agreement,exercise
has violated the, terms of this and has failed to correct said violation. County may 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
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complete improvements as required by the Construction Plans_ when such improvements have not
been completed in accordance with the Construction Schedule.
2.2. Withholding Permits. County may "lock" any or all lots within the Property, which
precludes the continued issuance of building permits, zoning. permits, septic permits_ or any other
permit issued by any department of the County.
2.3 Court Action. County may seek relief in law or equity by filing an action in the Weld
District Court or Federal District Court for the District of Colorado, except that no such civil action.
or order shall be necessary to access collateral for the purpose of completing improvements as
described above.
2.4 Revocation of USR Permit. Property Owner acknowledges that failure to comply with the
terms of this agreement constitutes cause to revoke the USR and County may exercise this option
in its sole discretion by proceeding with revocation under the then current provisions of the Weld
County Code.
3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following
events:
3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of
the underlying land use approval under Weld County Code section 23-2-290. However, County
may still exercise all necessary activities under this Agreement that the County determines
necessary to protect the health. safety, and welfare of the residents of Weld County.
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 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 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 USR, and
intends to make use of the rights and privileges available to it through the then existing USR.
3.4 Revocation of USR. This Agreement shall terminate following County- s revocation. of
Property Owner's USR., 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.
F. General Provisions:
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
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1111 VAT MIMI& 11111
the obligations under this Agreement are assigned, Consent to a delegation or an assignment will
not he 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. 1w and through annexation proceedings. has
assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement.
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 w ithin the
original intent of the parties,
2.0 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- 10 1 et seq.. as applicable now or hereafter amended.
3.0 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.
4.0 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.
5.0 Choice of Lawiurisdiction. Colorado law, and rules and regulations established pursuant thereto,
shall be applied in the interpretation, execution. and enforcement of this Agreement. Any provision included
or incorporated herein by reference which conflicts with said laws, rules and'or regulations shall be null
and void. In the event of a legal dispute between the parties, the parties agree that the Weld County District
Court or Federal District Court for the District of Colorado shall have exclusive_ jurisdiction to resolve said
dispute.
6.0 Attorneys' Fces'Legal Costs. In the event of a dispute between County and Property Owner,
concerning this Agreement, the parties agree that each parts- shall be responsible for the payment of attorney
fees and:or legal costs incurred by or on its own behalf.
7.0 Release of I iabil).ti Property Owner shall indemnify and hold harmless the County from any and
all liability loss and damage County may suffer as a result of all suits. actions. or claims of every nature
and description caused by. arising from. or on account of the design and construction of improvements. and
pay any and all judgments rendered against the County on account of any such suit, action or claim, and
notwithstanding section 7.0 above. together with all reasonable expenses and attorney fees incurred by
County in defending such suit, action or claim whether the liability. loss or damage is caused by. or arises
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.
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1111 l I1AMrY I NC IVI.Liyign lrgat Yk II II
8.0 Binding, Arbitration Prohibited. Weld County does not aeree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall he null and void.
9.0 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 Owners authority to enter into this Agreement
ithin live (5) days of receiving such request.
10.0 Acknowledgment. County and Property ( ) wner 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.
12.0 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.
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dill 1 ALII +YM iIi1/211M1 LIMII+r P IlyiE III I
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PROPER o1 OWNER:
By:
Name:
Title: a
By:
Name:
'title:
STATE OF COLORADO
County of Ott₹•
(�U Date _.. _ L
PcztReeTy
Ss.
The fore oing instrument was acknowled,ded before me this . day of
201 g. by 0 (Al1.7,?�i J
WITNESS my hand and official seal.
SUNIL POUDYAL
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20144012175
MY COMMISSION EXPIRES 03119/2022
WELD COUNTY:
ATTEST:
Weld
BY:
Deputy
BOARD OF COUNTY C.O\I\IISSIC)NERS
y� rLD COUNTY. COLORADO
/
Steve \forerun. Chair
NOV 0 5 2018
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