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HomeMy WebLinkAbout20173496.tiffTO: Board of County Commissioners FROM: Bob Choate, Assistant County Attorney DATE: October 11, 2017 SUBJECT: Improvements Agreement for Wayne Howard PUD The Board recently approved a three -lot residential PUD for Wayne Howard. Although the Board did not require an improvements agreement as a condition of approval, Mr. Howard was required to extend the water supply line owned by the Little Thompson Water District (LTWD) to serve the new lots. Mr. Howard desires to record the plat prior to actually constructing the water line, and so staff recommended he execute an improvements agreement for the sole purpose of ensuring completion of the water line extension, including submitting collateral to the County. The District Engineer for Little Thompson Water District agrees that this construction cost estimate is reasonable. Staff therefore recommends the Board approve the improvements agreement and accept the $54,500 in collateral. c -e- Cz-8C T T) 1O 1 1CD ( 2017-3496 yoz,a��� tO-tl- t�- IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS WAYNE HOWARD AND SHARYN FRAZER - PUDF17-0002 THIS AGREEMENT is made this // j day of . , 2017, by and between Wayne Howard and Sharyn Frazer, whose address is 6450 CR 52.25, Johnstown, CO 80534, 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: Lot B of Amended RE 0957-30-3 AMRE 3702 of Section 30, Township 5 North, Range 67 West of the 6th P.M., Weld County, Colorado and hereinafter referred to as "the Property," and WHEREAS, Property Owner has received Board of County Commissioner approval of PUDZ16-0005, and conditional administrative approval of PUDF17-0002 for 3 lots on approximately 18.17 acres on the Property, and WHEREAS, Property Owner acknowledges that the final approval of PUDF17-0002 is conditional upon Property Owner's funding and/or construction of the on -site and off -site improvements described in this Agreement and depicted in the following incorporated exhibits: Exhibit A — Costs of Construction (estimate), Exhibit B —Water Line Location Drawing, Exhibit C — Plat Map (recorded simultaneously with this Agreement), Exhibit D — Contribution in Aid of Construction and Use Agreement between Property Owner and Little Thompson Water District, and WHEREAS, Property Owner acknowledges that it may not engage in any activity described in PUDFI 7-0002 until said improvements have been completed and accepted by County, and WHEREAS, Property Owner agrees that pursuant to the provisions of Weld County Code Sec. 24-3-80, 24-4-70, and 27-8-60, the failure to commence construction of the improvements outlined herein within three (3) years of the approval of PUDF17-0002 may result in the revocation of PUDF17-0002, upon consideration and order of the Board of County Commissioners, and WHEREAS, the parties agree that the Property Owner shall provide collateral for all off - site, and if applicable, on -site improvements required by this Agreement when the Property Owner 4343633 Pages: 1 of 13 10/12/2017 10:42 AM R Fee:$0.00 Carly Koppe., Clerk and Reoorder, Wald County, Co lilt �:1��1�'a4�h �G '1�1k�i�tl aka k'Mi M, 11111 of 7 020/7— 21-94- submits and receives approval of an application for a Grading Permit, Building Permit, Access Permit, or for a Right -Of -Way Permit for work within the County and/or State of Colorado Right - Of -Way, or at a time determined acceptable by the Board of County Commissioners. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: A. Required Improvements 1.0 Off -Site Improvements Required to Be Constructed Prior to Sale of Lots 2 or 3. The Property Owner shall be responsible for the construction of certain off -site improvements, which shall include: the design and installation of a water line in accordance with property owner's Contribution in Aid of Construction and Use Agreement with the Little Thompson Water District (LTWD), which is fully incorporated herein as Exhibit D, as depicted in Exhibit B. Owner shall complete such improvements within a reasonable amount of time after receiving necessary design documents from LTWD. 2.0 Rights -of -Way and Easements: Before commencing the construction of any improvements herein agreed upon for public rights -of -way or easements, Property Owner shall acquire, at its sole expense, good and sufficient rights -of -way and easements made necessary for the improvements. 3.0 Construction: Property Owner shall furnish and install, at its own expense, the improvements identified on the accepted Construction Bid Items and Water Line Location Drawing and Plat Map, and shall be solely responsible for the costs listed on Exhibit A. Said construction shall be in strict conformance to the plans and drawings accepted by the County and the specifications adopted by the County. 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: (1) Project Collateral is required for completion of all improvements described in this Agreement shall be provided for on - site and/or off -site improvements. 1.1 Project Collateral shall be submitted to guarantee completion of construction of the I,TWD water line. Project Collateral must be submitted in an amount equal to 100% of the value of Owner's obligations according to Owner's agreement with LTWD, as calculated in Exhibit A ($54,500.00). Project Collateral must be submitted at the time of execution of the Agreement. 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. NO WORK SHALL COMMENCE UNTIL PROJECT COLLATERAL HAS BEEN SUBMITTED AND ACCEPTED BY THE COUNTY. 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. 143633 Pages: 2 of 13 /12/2017 10:42 AM R Fee:$0.00 riy Koppes, Clerk end Recorder, Weld County, CO 2 of 7 3.0 Release of Collateral. Collateral shall be released in accordance with section 2-3-30 of the Weld County Code. 3.1 Timing of Release. Project Collateral may be released upon completion of all improvements required by this Agreement, after approval by the County. 3.2 Request for Release of Collateral. Prior to release of collateral by Weld County for the entire project or for a portion of the project, the Property 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, work should be constructed in compliance with the Weld County Engineering and Construction Criteria (WCECC). 3.2.3 The Statements of Substantial Compliance must be accompanied, as applicable, by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district, or town for any utilities. C. 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. 1.0 Right -of -Way (ROW) Permits. 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. D. 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 Page 3 of 7 4343633 Pages: 3 of 13 10/12/2017 10:42 AM R Fee:$0.00 Carly Koppe:, Clerk and Recorder, Weld County, CO hi WWII II 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 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 this Agreement, 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 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, except that no such civil action or order shall be necessary to access collateral for the purpose of completing improvements as described above. 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 sections 24-3-80, 24-4- 70, or 27-8-60. 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. E. 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 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. Paae 4 of 7 43633 Pages: 4 of 13 /12/2017 10:42 AM R Fee:$0.00 1y Koppel', Clerk and Recorder, Weld County, CO II livdtIVytii1l 4l1'Il 41 :l iv'illYmh 1I 111 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 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, including subsequent lot purchasers. 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. 5.0 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. 6.0 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. 7.0 Attorneys Fees/I,egal 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. 8.0 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 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. 343833 Pages: 8 of 13 5/12/2017 10:42 AM R Fee:$0.00 mly Koppes, Clerk and ill! , Weld County, CO 1 IPIIPI Mil�E hid' I�r flu 'YV III III Page 5 of 7 9.0 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. 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 shall provide the County with proof of Property Owner's authority to enter into this Agreement within five (5) days of receiving such request. 11.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement, understands it and agrees to he 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. Parr€ 6 of 7 4343633 Pages: 6 of 13 10/12/2017 10:42 AM R Fee:$0.00 Carly Koppes, Clark and Reoorder, Weld County, CO W TNES, WHEREOF, the parties hereto have signed this Agreement this eday of , 2017. PROPERTY OWNER: Wayne How rd and Sharyn Frazer BY By: ShavyM TfazeY Date ///,/?- Date 10/04/2017 WELD C: -A Jc40 � ATTEST: �Wl Weld C. in y Clerk to the Boa'd BY: Deputy Cler o the Boar APPROVED AS TO FORM: County Attorney BOARD OF COUNTY COMMISSIONERS WELD,C • NTY, COLORADO „,,� � .ice �,��►i+ < ..--- �r Cozad, Chair Page 7 of 7 343633 Pages: 7 of 13 0/12/2017 10:42 AM R Fee:$0.00 vly Koppea, Clerk and Recorder, Wald County, CO 11111 1 1 2017 0z0/7- 3�9G� Project - 6" Waterline along CR 52/25 5225 Estates 4 - CO O N r-- 7 U 0 O O U.) O) r- Efi C) z v C) 'o a C) C C) J V a) .O a W 0 H 0 z 0 H U H z 0 U 0 W H W I COUNTY I $57,500 0 0 000,000 O 69 0 0 t` EA- 0 0 Ef-? 0 0 M E09- 0 0 N EA 0 0 EA 0 0 Lo CA N - ER I QUANTITY 0 0 U.) N N- - - CO 't- VTINGENCY 75 0 H I UNIT $ COO N Ef3 O O CO Ef3 $7,000 I 0000 0 O e- EA- 0 o N- En- 0 0 CV Ea - 0 UNIT J LS LS LS W J CONSTRUCTION COSTS U CL F CANAL BORING CANAL COMPANY CROSSING FEE TRAFFIC CONTROL AND SIGNING WATER TAP (RECONNECTION) MOBILIZATION 4343833 Pages: 8 of 13 10/12/2017 10:42 AM R Fee:$0.00 Carly Koppel, Clerk and Recorder, Weld County, CO iii NFJl:Palli'h 'YAidll �kirl:4 f4 1l ll1 00 0 0 tdi N t�f) z 0 m H Z 0 O W >- O H W a_ O a. O U co it 0 U 13 C Qi Y U t0 O) C ID C O t Co U x a) a) cn E CU — m o Z J J gal O_, -- v i Illei S. - •3 a - L. .t • 1..4 Is O O_, Et et el- a11 N 1` or ..-I - - GvS- ri N. : eu v.- a i- No "1 .4„,,Y� em4L re 0 EXHIBIT D CONTRIBUTION IN AID OF CONSTRUCTION AND USE AGREEMENT THIS CONTRIBUTION IN AID OF CONSTRUCTION AND USE AGREEMENT (the "Agreement") is between Wayne Howard, current resident and property owner of the property located at 6450 Weld County Road 52.25 of Johnstown, Colorado, and LITTLE THOMPSON WATER DISTRICT, a Colorado quasi -municipal corporation (the "District"), and is on the following terms and conditions: 1. Background. Wayne Howard desires additional service to future lots to be created on his current property located at 6450 Weld County Road 52.25, Johnstown, Colorado, also known as Weld County Parcel number 095730300049. It is in the interest of the District to cooperate in the construction of certain waterlines of the water distribution system of the District defined in this Agreement (the "Project"), especially those that have been identified in previous planning documents. Such water facilities will benefit the District customers. 2. Design of Project. Attached hereto as Exhibit A is a map showing the approximate location of the line and areas which are subject to this Agreement. The parties anticipate that 2,600 lineal feet of 6 -inch waterline will be installed with the area depicted under the Project as further shown on Exhibit A. The District will consult with Wayne Howard regarding the location of new services for his property. 3. Bidding and Construction of Water Facilities. Mr. Howard shall contract with a qualified, insured contractor to install the proposed water facilities. The Contractor will install the waterline according to the approved design drawings per District Rules and Regulations and allow the District's inspection. 4. Payment by District. The District agrees to contribute fifty percent (50%) of the project expenses for design, permitting, and construction of the Project up to the sum of $ 25,000 excluding costs associated with staff hours. Hours for staff will not be charged during design or construction of the waterline. The foregoing amount shall be paid by the District to Mr. Howard upon the submittal of invoices to the District. Invoices submitted for payment shall be copies of those submitted to Mr. Howard from the 82 Contractor for the installation of the waterline and appurtenances generally shown in aF Exhibit A. Each billing statement provided by Mr. Howard shall show the basis of billing for such statement. The District shall make payment to Mr. Howard within 30 business .7 days of the receipt date of each such billing statement. The District hereby represents that eit:2 it has, or will, duly appropriate the foregoing amount in its annual budget for fiscal year 2017. aLL • L% 5. Ownership of Water Facilities. Wayne Howard shall have no right, title or interest in any of the water facilities of or water distributed by the District aa, notwithstanding the contribution in aid of construction made to the District. d am:• AU } " a1 40,04 P:\Engineering\Projects\2017 Projects\WCR 54.25 - Wayne Howard\CONTRIBUTION IN AID OF CONSTRUCTION AND USE V)a AGREEMENT.docx 8/22/17 2:50 PM ��= Page 1 6. District Rules. Wayne Howard and future assigns shall at all times abide by the terms and conditions of the District's rules, regulations, bylaws and tariffs with respect to the utilization of the District's facilities and water. 7. General Provisions. 7.1 Successors and Assigns. This Agreement herein contained shall bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto. 7.2 Entire Agreement. This Agreement contains the complete and entire agreement between the parties regarding the transaction contemplated herein, and supersedes all prior negotiations, agreements, representations and understandings, if any, between the parties regarding such matters. 7.3 Modifications. This Agreement may not be modified, discharged or changed in any respect whatsoever, except by a further agreement in writing duly executed by the parties. However, any consent, waiver, approval or authorization shall be effective if signed by the party granting or making such consent, waiver, approval or authorization. 7.4 Notices. Any notice, demand, consent, authorization or other communication (collectively, "Notice") which either party is required or may desire to give to or make upon the other party pursuant to this Agreement shall be effective and valid only if in writing, signed by the party giving such Notice, and delivered personally to the other party or sent by express -courier or delivery service or by registered or certified mail of the United States Postal Service, return receipt requested, postage or delivery charge prepaid, addressed to the other party as follows (or to such other address or person as either party to person entitled to Notice may be notice to the other specify): To Wayne Howard: 6450 Weld County Road 52.25 Johnstown, CO 80534 To District: Little Thompson Water District 835 East Highway 56 Berthoud, CO 80513 Unless otherwise specified, Notices shall be deemed given when received, but if delivery is not accepted, on the earlier of the date delivery is refused or the third day after the same is deposited with the United States Postal Service. 7.5 No Personal Liability of District Officials. No officer, director, member, agent, or attorney of the District, no disclosed or undisclosed principal of either District, and no person or entity in any way affiliated with either District shall have any personal liability with respect to this Agreement, any instrument delivered by either District, or the P:\Engineering\Projects\2017 Projects\WCR 54.25 - Wayne Howard\CONTRIBUTION IN AID OF CONSTRUCTION AND USE AGREEMENT.docx 8/22/17 2:50 PM Page 2 transaction contemplated hereby, nor shall the property of any such person or entity be subject to attachment, levy, execution or other judicial process. 7.6 Cooperation to Complete Transactions. The parties shall cooperate and use their best efforts, in good faith, to effectuate the transactions contemplated by this Agreement, and to fulfill all the conditions of its obligations under this Agreement and shall do all such acts and things as reasonably may be required to carry out its obligations hereunder and to consummate and complete this Agreement. IN WITNESS WHEREOF, the parties have caused this instrument to become effective by their signatures hereon. Wayne Howard STATE OF ss COUNTY OF The foregoing instrument was acknowledged before me this day of [Date] by Assignor: Witness my hand and official seal. Notary Public Little Thompson Water District District Engineer Amber Kauffman, P.E. STATE OF ss COUNTY OF The foregoing instrument was acknowledged before me this day of [Date] by Assignor: Witness my hand and official seal. Notary Public 4343633 Pagss: 12 of 13 10/12/2017 10:42 AM R F.s:$0.00 Carly Koppae, Clark and Reoorder, Weld County, Co lilt rrdlliV0I0 41itfiliAkIJAVI fir Iii 11111 P:\Engineering\Projects\2017 Projects\WCR 54.25 - Wayne Howard\CONTRIBUTION IN AID OF CONSTRUCTION AND USE AGREEMENT.docx 8/22/17 2:50 PM Page 3 r - N IC) • a) C • I CO a) CID C Q • 0 • X W 00 N O U, 1 O LO ti O O O Rivers Streams Ditches Water Main I a E O a r 46 D U1 o. o ro O 5 au (D cc co m to Z L Ur co Lit d v CC >'o W O aoi a� CD C E U) Y a) O M .0 U) o D O 43 O rncn O LO _ U) �O O wcn T U Q J J o) E E cn z o O O O Subdivision Asbuilt Weld County Parcels District Sections Service Line a O CD a) u_ • ti O N N N .r = v! CDa) C < a) O --, U) a) co -J C O U Weld County Roads Network Structure Cathodic Protection C 3 co o m I os Boulder County Lakes Boulder County Roads O) C U, Cu U Sampling Station Control Valve Larimer County Lakes Larimer County Roads Water Main Abandoned a System Valve 4 Web Abbe udder for ArcGIS USDA FSA. Microsoft I Joe Robinson Sharyn hazer Ph. 970-222-1376 6450 Weld County Road 52 1/4 Johnstown, CO 80534 7541 E. (Jiff Avenue CREDIT UNION Denver, Colorado 80231 OF WWW cuofco.org COLORADO 303-832-4816 or 1-800-444-4816 82-7512/3020 104 FLAVIA" HARLEQUIN Hello