HomeMy WebLinkAbout20170444.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Improvements Agreement and Accept Collateral For:
Wade Castor c/o BNN Western, LLC — USR15-0020
DEPARTMENT: Public Works DATE: 1/19/2017
PERSON REQUESTING: Evan Pinkham
RECEIVED
JAN 1 9 2017
WELD COMMISSIONERS
C
Brief description of the issue: 0UNTY
The Department of Public Works received a request from the applicant, BNN Western LLC, requesting that the
Board of County Commissioners consider approving the Improvements Agreement for the mineral resource
development facility (USR15-0020), located on CR 104, east of CR 111.
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. The Agreement has been signed
by Jay McDonald/Public Works Director.
The Department of Public Works received a request from the applicant, Noble Energy Inc., requesting that the
Board of County Commissioners consider accepting off -site collateral in the form of a performance bond
(Argonaut Insurance Company Bond #SUR0040838) in the amount of $2,400.00, for the above -mentioned
Improvements Agreement.
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 and the acceptance of off -site collateral for (USR 15-0020), and that this item be
placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Approve Schedule as Regular
Recommendation BOCC Hearing Item Other/Comments:
Julie A. Cozad, Chair
Steve Moreno, Pro -Tern
Sean P. Conway
Barbara Kirkmeyer
Mike Freeman
m (✓
O: BOCC PassAround t USR 15-00 20 Passaround-BOCC Hearing Request 201 ?. doer
ace+ CipetteL
n-
cc2 to l eb
2017-0444
PLa3es
IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Wade Castor, C/O BNN Western, LLC - USR15-0020
THIS AGREEMENT is made this 30" day of A)oVe'r, 2016 , by and between Wade
E. Castor and Deland Todd Castor, hereinafter referred to as "Property Owner," BNN Western, LLC,
hereinafter called "Lessee", and the County of Weld, by and through its Board of County
Commissioners, hereinafter referred to as "County."
WITNESSETH:
WHEREAS, Property Owner is the owner of the property described in the application to Use
by Special Review USR15-0020, referred to as "the Property," which has been approved by the
County, and
WHEREAS Lessee has leased the Property from the Property Owner and
WHEREAS, as a condition of approval of USR15-0020, the Lessee agrees to complete the
improvements required by this Agreement, pursuant to Exhibit A (Costs), Exhibit B (Schedule),
Exhibit C (Plat Map) and Exhibit D (Construction Plans), which are each incorporated herein, and
WHEREAS, the parties agree that the Lessee shall provide collateral for all off -site
improvements required by this Agreement before the Lessee submits and receives approval of an
application for a Grading Permit, Building Permit or for a Right -Of -Way Permit for construction of
accesses and 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:
Part 1 (of 2): Site Specific Provisions
A. Required Off -Site Improvements:
1.0 Weld County Roads: The Lessee shall be responsible for the construction and maintenance of
the following off -site safety improvements, as described in the accepted Exhibit C (Plat Map) and/or
Construction Plans (Exhibit D):
1.1 Construction of adequate turning radii sixty (60) feet at the main entrances and exits
which extend partially into CR 104 right-of-way (ROW); For the purposes of this Agreement,
the "facility access", the "main entrance", and the "facility entrance" shall mean the
intersection at which CR 104 and CR 113 Section Line meet.
1.2 Drainage installations;
1.3 Signage Installations;
1.4 Standard County approved tracking control, placed across the entire width of the
roadway, to ensure a complete revolution of the truck tires in order to minimize the tracking
of mud and debris onto the adjacent County Road;
4279109 Pages: 1 of 16
02/16/2017 02:41 PM R Fee:$0.00
Car y Kcppes. Clerk and Recorder. Weld County CO
1111 P,IPALV'M
ge1of12
O20/ 7,- o44'74
Granting of any new point of access may generate additional obligations with County for
Off -Site Improvements and the need to post additional "Road Maintenance Collateral", if
applicable. A County access permit is needed for every access to a County road.
2.0 Road Improvements Responsibilities: Lessee is solely responsible for all designated
improvements and for all expenses associated therewith.
3.0 Timing of Improvements: Subject to the provisions of Weld County Code and any
conditions or considerations granted by the Board of County Commissioners, Lessee shall not be
required to complete the aforementioned offsite improvements until the occurrence of the triggering
event for each improvement, namely the application for the Grading Permit, Building Permit or
Right -Of -Way access permit or the commencement of activities on the property(s).
B. Haul/Travel Routes
1.0 Established Haul Routes from the facility access point:
1.1 Exiting or entering the site: haul vehicles shall enter or exit the site at the approved access
onto CR 104 for further dispersal. Any County roads routinely utilized by USR haul
traffic may become part of the established haul routes.
1.2 No haul vehicles may exceed CDOT required specifications for pounds per
axle.
1.3 In unusual or rare occasions, if particular projects mandate deviation from the above -
mentioned haul route, the County may approve a deviation for a limited period of time
(not more than thirty days). If County approves such deviation, haul vehicles will utilize
paved county roads whenever possible. A deviation from the established Haul route
lasting more than thirty (30) days or requests for two or more deviations within a twelve
month period shall be subject to the terms of Section B.4.0. In the event that haul route
traffic, in excess of 15% of the daily facility haul vehicle trips, utilizes alternate haul
routes, the provisions of Section 4.0 of this Section B shall be triggered.
2.0 No Deviation from Approved Haul Routes: Except under the provisions provided in Section
B.1.3, no deviation in the use of any roads other than those specifically authorized for use in this
Agreement is permitted without the prior written amendment of this Agreement.
3.0 Haul Route Signage(If Applicable): Lessee shall install haul route signs, as per MUTCD
standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility
and which clearly depict County approved haul routes.
4.0 Effect of Future Changes to Haul Routes: Any future changes to haul routes requiring use
of unpaved County road may require dust control or paving of such roads, as defined by an
amended agreement. In such circumstance, County will determine the proportionate share of dust
control and/or paving costs to be paid by Lessee based upon then current vehicle trip counts that
identify traffic loading due to Lessee's facility. The amount and extent of dust control and/or paving
measures will be determined by site -specific conditions at the time, as determined exclusively by
County personnel.
4279109 Pages: 2 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes Clerk and Recc-der. Weld County :C
1111 M!r rW1,16.1Gi
)f 12
5.0 Off -Site Dust Control/Abatement: The Lessee is required to provide dust abatement along
affected Haul Route Roads approximately two to five times per year, as determined by the County.
County will determine the proportionate share of dust control to be paid by Lessee. The amount and
extent of dust control measures will be determined by site -specific conditions at the time, as
determined exclusively by County personnel. The County reserves the right to install traffic
counters on the driveway(s) of the Lessee's facility. The County will have sole responsibility for
determination of the percentage of haul route traffic on all affected roads.
6.0 Obligation to Maintain Current and Future Haul Routes: Lessee will be fmancially
responsible for the excavation, repair, and patching of any damage on current or future haul route
roads, which in the sole opinion of County has been created by vehicle traffic to and from the
Property. Should Lessee's site activities or vehicle circulation patterns change in the future so that
County approves an alternate haul route, and all or a significant portion of Lessee's sourced traffic
no longer utilizes the above -described haul route and instead utilizes other portions of County roads,
Lessee shall cooperate with County in maintenance of said roads which are included within the new
haul route. The type and method of repair will be determined by the County Engineer or his
representative. Repairs shall commence within 48 hours of notification by the County for any
roadway damage that exposes the driving public to adverse or unsafe driving conditions. All other
repairs shall commence within thirty (30) days of receipt of Weld County's written notice.
6.1 Need for Immediate Repairs: In the event of damage to an Approved Haul 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 Lessee of
such Significant Damage. Lessee 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 twenty-four (24) hours after receipt of such notice and shall
commence such repair within 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 Lessee identifies Significant Damage prior to receiving notice thereof from
County, Lessee 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).
6.2 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 route
road portion will require paving measures in order to protect the public health, safety,
and welfare, and has budgeted sufficient funds for the following calendar year to pay its
share of the Off -Site Improvement/Repair Costs, County shall notify Lessee 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, Lessee shall submit Off -Site Construction Plans and Cost
Estimates to County for review. Lessee 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.
6.3 In County's sole discretion, County may undertake the repairs and/or improvements.
Lessee's payment for its Proportionate Share of the road repairs/improvements will be
calculated as described in this Agreement.
4279109 Pages: 3 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes Clerk and Recorder Weld County CO
•3of12
7.0 Annual Road Inspection: County will conduct a road inspection annually with the
cooperation of Lessee and all other Property Owners and/or Lessees who are required by County to
participate in road improvement/maintenance agreements. As a result of the annual inspection,
County, in its sole discretion, shall determine actual conditions and shall further determine what
road repair/improvement/maintenance work is to be performed during that construction season.
Notification to the Lessee of the required roadway repairs will be given as soon as the data becomes
available.
8.0 Future Improvements to Haul Routes: If traffic volume or conditions require future
improvements to be made to the haul route(s), including intersections, the County may require
Lessee to pay a proportionate share of the cost of the entire project. Future improvements will be
subject to any Federal, State or County regulations in place at the time the improvement project is
initiated.
Due to the increased traffic volumes at the facility below is a list of triggers for the improvements
for the upgrading, widening, and/or paving of County maintained CR 104 at the facility entrance:
a. 200 vehicles per day Mag-Chloride
b. 300 vehicles per day Alternate Pavement
c. 400 vehicles per day Asphalt Pavement
9.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road
damage increases beyond the point that repair of damage cannot maintain the road in a safe and
usable condition, Lessee shall pay a proportionate cost of a complete road restoration. Notification
to the Lessee of the required roadway replacements will be given as soon as the data becomes
available and typically takes place before the end of the year prior to the start of the replacement
project.
10.0 Proportionate Share of Road Maintenance Responsibilities:
10.1 Lessee shall pay its Proportionate Share of costs of dust controllabatement, paving,
repairs, maintenance, improvements, or future road replacement of any particular Haul
Route Road. Lessee's Proportionate Share shall be based upon the percentage of traffic
on the road that is attributable to Lessee's facility. County personnel will determine the
percentage based on then current Equivalent Single Axle Load (ESAL) Counts. Lessee
shall not be responsible for traffic that is not sourced from the Lessee's facility.
10.2 The County shall notify Lessee of County's preliminary determination and assessment of
Lessee's proportionate share of costs. Prior to County's final determination and
assessment, County shall provide Lessee with a reasonable opportunity to review,
comment upon and supplement County's data, collection methodology, and
determinations. The County shall review and consider Lessee's input prior to making a
final determination and assessment. The County shall have sole responsibility for
determination of Lessee's proportionate share of costs.
11. Road Maintenance Collateral: Lessee shall post Road Maintenance Collateral as described
by Part 2 of this Agreement.
4279109 Pages: 4 of 16
02/16/2017 02:41 PM R Fee:$0.00
Oa -:y Koppes. Clerk and Recorder, Weld County. CC
1111 WirrdlAiNdki:1in*idii t h 11111
4of12
C. On -Site Improvements (Not Applicable)
1.0 Landscaping and Fencing Requirements: Lessee shall at its own expense, plant, install
and/or maintain all grass and other landscaping and re -seeding where applicable as shown on the
accepted Construction Plans and/or Plat Map. Additionally, the Lessee shall install and/or maintain
fencing to screen the property where applicable as indicated on the accepted construction plans
and/or Plat Map. In the event any of these improvements may include work extending into State or
County Right -Of -Way, a Right -Of -Way or access permit is required.
2.0 On -Site Grading, Drainage Facilities and Paving: Lessee shall, at its sole expense, grade
and/or pave, if applicable, specified roadways, accesses, easements and parking areas, and install
accepted drainage and signage components, adjacent to or within the interior portion of the property
in accordance with the directives of the Weld County Department of Public Works and Department
of Planning Services, as further described in the accepted Construction Plans and Plat Map. Any
other on -site improvements shall be completed as indicated on the accepted Construction Plans for
this facility. Lessee shall be responsible for all maintenance of the on -site improvements.
Additional infrastructure improvements will be addressed at the time of application for any future
amended USR. Some of these improvements may include work extending into State or County
Right -Of -Way in which case a Right -Of -Way or access permit is required.
3.0 Timing of Improvements: Subject to the provisions of Weld County Code and any
conditions or considerations granted by the Board of County Commissioners, Lessee shall not be
required to initiate any applicable landscaping requirements until the occurrence of the triggering
event for all improvements, namely the approval of the grading permit or an amendment to the
existing USR. Except with prior County consent, no grading permit will be released until collateral
is posted for all off -site improvements and the final Construction Plans have been submitted to and
accepted by the Department of Public Works. Access and/or Right -Of -Way permits might also be
required prior to approval of the grading permit. Grading shall not commence until Construction
Plans are accepted. Any alterations to the accepted Construction Plans must be accepted in writing
by the County Planning and Public Works Departments. At that time, and unless otherwise
amended, Lessee agrees that all landscaping and other on -site improvements shall be completed
within the parameters established in this Agreement.
"End of Part I"
4279109 Pages: 5 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes Clerk and Recorder, Weld County CO
'IV 1114.11 II I
U:\Engineering\PLANNING -- DEVELOPMENT REVIEW\ -2015 Planning Referrals\USR15\USRl5-0020 Whiting-Castor\Whiting-Castor (USR15-
0020) - Part 1 Final IA (2-25-16).docx
Page 5 of 12
IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Wade Castor, C/O Whiting Oil and Gas Corporation — USR15-0020
Part 2: General Provisions
A. General Requirements:
1.0 Engineering Services: Lessee shall furnish, at its own expense, all engineering services in
connection with the design and construction of the improvements identified on the accepted
Construction Plans according to the construction schedule set forth in Exhibit "B," both of which
are attached hereto and incorporated herein by reference.
1.1
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.
1.2 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.
1.3 Lessee shall furnish construction drawings for the road improvements on public rights -
of -way or easements and all improvements interior on the Property for approval prior to
the letting of any construction contract.
1.4 Construction Standards: All improvements shall conform to the "Standard Specifications
for Road and Bridge Construction" provided by CDOT.
2.0 Rights -of -way and Dedication of Right -of -Way: If necessary, Lessee agrees to acquire any
property interests, such as right-of-way, utility or access easements, necessary to complete any
improvements required by this Agreement. Any rights -of -way to be dedicated to the County shall be
conveyed by appropriate deed and, after acceptance by the County, recorded in the records of the
Weld Count Clerk and Recorder.
3.0 Construction: Lessee shall furnish and install, at its own expense, the improvements
identified on the accepted Construction Plans and Plat Map, be solely responsible for all associated
costs. All improvements must be completed in accordance with the schedule set forth in Exhibit
"B". The Board of County Commissioners, at its option, may grant an extension of time upon
application by the Lessee.
3.1 Said construction shall be in strict conformance to the plans and drawings accepted by
the County and the specifications adopted by the County.
3.2 Lessee shall employ, at its own expense, a qualified testing company previously
approved by the County to perform all testing of materials or construction; and shall
furnish copies of test results to the County. If County discovers inconsistencies in the
testing results, Lessee shall employ at its expense a third party qualified testing company
approved by County. Such third party shall furnish the certified results of all such testing
to the County.
4279109 Pages: 6 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes Clerk and Recorder, Weld County CO
III
6of12
3.3 At all times during said construction, the County shall have the right to test and inspect,
or to require testing and inspection of material and work, at Lessee's expense. Any
material or work not conforming to the approved plans and specifications, including but
not limited to damages to property adjacent to the construction plan area shall be
repaired, removed or replaced to the satisfaction of the County at the expense of Lessee.
3.4 Permits. Lessee must still apply for and abide by the terms of any necessary right-of-way
permits, grading permits, and building permits. No work may occur in the County's
right-of-way without a County -issued right-of-way permit and access permit.
4.0 Release of Liability: Lessee shall indemnify and hold harmless the County and the Property
Owner from any and all liability loss and damage County and/or the Property Owner may suffer as
a result of all suits, actions or claims of every nature and description caused by, arising from, or on
account of said design and construction of improvements, and pay any and all judgments rendered
against the County and/or the Property Owner on account of any such suit, action or claim, together
with all reasonable expenses and attorney fees incurred by County or the Property Owner 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, or the Property
Owner 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, or the
Property Owner. 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.
5.0 Acceptance of Off -Site Improvements by the County: Upon written request by the Lessee,
the County shall accept the Lessee's off -site improvements, if the following conditions are met:
• The off -site improvements have been completely constructed, and
• The Lessee's Engineer has filed a Statement of Substantial Compliance, and
• The County Engineer has inspected the improvements and agrees they are complete.
5.1 The County does not represent that the improvements will be constructed and/or
available for their intended use(s). The County does not assume liability for
improvements designed and/or constructed by others.
5.2 If approved by the County Engineer, portions of the improvements may be placed in
service, but such use shall not constitute an acceptance by the BOCC.
5.3 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 Exhibit "B," and may continue to issue building permits so long as
the progress of work on the USR improvements in that phase of the USR is satisfactory
to the County, and all terms of this Agreement have been faithfully kept by Lessee.
6.0 Warranty Period: Lessee agrees to warrant the improvements for two years from the date the
improvements are accepted by the County. Upon completion of the two-year warranty period and at
the request of the Lessee, the County Engineer shall inspect the improvements and direct the Lessee
to correct any deficiencies. The County Engineer shall re -inspect after all corrections have been
4279109 Pages: 7 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes. Clerk and Recorder, Weld County Co
EY), 11111
'ge7of12
completed. If the County Engineer finds that the improvements are constructed according to County
standards and the accepted Construction Plans, he/she shall recommend full acceptance. Upon
receipt of the County Engineer's unqualified recommendation for acceptance, the BOCC shall
accept the improvements.
7.0 General Requirements for Collateral: County requires Lessee to provide collateral to
guaranty all of Lessee's obligations under this Agreement: (1) Project Collateral for completion of
off -site improvements described in this Agreement; (2) Warranty Collateral required for all
improvements during the warranty phase; and (3) Road Maintenance Collateral (If Applicable) to be
kept in place for the life of the permit.
7.1 Project Collateral — Lessee shall submit Project Collateral in a form accepted by Weld
County to guarantee completion of any off -site improvements. Such collateral must be
equivalent to One -Hundred Percent (100%) of the value of the improvements as shown
in this Agreement. This collateral must be submitted to County upon the execution of
this Agreement, or at a time determined acceptable by the BOCC, and shall be held in
total by County until such improvements are accepted and collateral is released by the
BOCC.
7.2 Warranty Collateral for all off -site improvements shall be submitted to County and shall
be held in total by the County for two (2) years following its written acceptance of the
improvement(s).
7.3 If required by Part 1 of this Agreement, Road Maintenance Collateral shall be submitted
to County at the time of approval of this Agreement. Road Maintenance Collateral is
held for use on roads associated with the designated haul route. The submitted amount
shall be $3,600.00 for facilities adjacent to paved haul route roads or $2,400.00 for
facilities adjacent to gravel haul route roads.
7.4 Collateral may be in any form permitted by Weld County Code Chapter 2, Section 3.
7.5 The Board of County Commissioners reserves the right to reject collateral as permitted
by Weld County Code Chapter 2 Section 3.
7.6 Collateral shall be released in accordance with the provisions of Weld County Code
Chapter 2 Section 3.
B. Violations of Agreement and Remedies
1.0 Violation of Terms of Agreement: If in County's opinion, Lessee has violated any of the terms
of this Agreement, County shall so notify Lessee and shall state with specificity the facts and
circumstances which County believes constitute the violation. Lessee shall have thirty (30) days
within which to either cure the violation or demonstrate compliance. Thereafter, County may seek
any remedy described in this Agreement or otherwise provided by law.
2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the
earliest of the following events:
4279109
02/16/2017
Carly Koppes
Pages: 8 of 16
02:41 PM R Fee:$0.00
Clerk and Recorder. Weld County. CO
:8of12
2.1 Cessation of all Permit Related Activities: Termination of this Agreement shall occur
upon Lessee's complete cessation of all activities permitted by the USR. A partial
cessation of activities shall not constitute a Termination of this Agreement, nor shall
County's issuance of a partial release constitute a Termination. Unless informed in
writing by the Lessee of cessation of activities, and verified by the County, cessation
shall be presumed if the County determines that the USR has been inactive for three (3)
years. Lessee shall not be entitled to a release of Project or Warranty Collateral unless
and until the improvements required by this Agreement are completed.
2.2 Execution of Replacement Agreement: This Agreement shall terminate following
County's execution of a new Improvements Agreement with a new Lessee 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.
2.3 Revocation of USR: This Agreement shall terminate following County's revocation of
Lessee's USR, except that the Lessee 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 Lessee's collateral if Lessee fails to
complete such improvements.
3.0 Revocation of USR: Lessee acknowledges that failure to comply with the terms of this
Agreement constitutes cause to revoke the USR, and County may exercise this option in its sole
discretion by proceeding with revocation under the then current provisions of the Weld County
Code.
4.0 County Completion of Improvements / Accessing Collateral: County reserves the right to
access any collateral provided by Lessee in order to complete the improvements required under this
Agreement, if Lessee fails to do so for any reason, after receiving notice of a violation of the terms
of this Agreement as provided herein.
5.0 Court action: Upon notice of violation and failure to cure within the time permitted by this
Agreement, 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.
C. Miscellaneous Provisions.
1.0 Definitions:
1.1 All references in this Agreement to "County Engineer" shall refer to the any individual
or individuals appointed by the County Engineer to act on his/her behalf
1.2 All references to "Haul Routes" include identified travel routes for subdivisions;
references to "haul vehicles" include subdivision vehicular traffic, as applicable.
1.3 All references to "Lessee" shall include any individual or entity, including an
"Operator", who is acts on behalf of the Lessee regarding this Agreement.
4279109 Pages: 9 of 16
02/16/2017 02:41 PM R Fee:$0.00
Car y Koppes. Clerk and Recorder, Weld County. CO
of 12
1111 M1'JII 'K ,"h' I M1/2M III
2.0 Successors and Assigns: This Agreement may not be delegated, transferred or
assigned in whole or in part by Lessee without the express written consent of County and the
written agreement of the party to whom the obligations under this Agreement are assigned.
Lessee's release of its obligations shall be accomplished by County's execution of a new
Improvements Agreement with the successor owner of the property. Consent to a delegation
or an assignment will not be unreasonably withheld by County. PROPERTY OWNER
SHALL BE RELEASED FROM ALL OBLIGATIONS UNDER THIS AGREEMENT
UPON THE EXPRESS WRITTEN ASSIGNMENT OF THIS AGREEMENT TO, AND
ACCEPTANCE BY, A PURCHASER OF THE PROPERTY. SUCH ASSIGNMENT
SHALL NOT REQUIRE THE CONSENT OF THE COUNTY. 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 the roads affected by this Agreement. All of the terms
and conditions set forth in this Agreement shall be binding upon the heirs, executors,
personal representatives, successors and assigns of Lessee, and upon recording by the
County, shall be deemed a covenant running with the land herein described.
3.0 Governmental Immunity: No term or condition of this agreement shall be construed or
interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or
other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable
now or hereafter amended.
4.0 No Third Party Beneficiary Enforcement: 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 contained in this
Agreement shall give or allow any claim or right of action whatsoever by any other person or entity
not included in this Agreement. It is the express intention of the undersigned parties that any person
or entity, other than the undersigned parties, receiving services or benefits under this Agreement
shall be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto
and incorporated herein, contains the entire agreement between the parties with respect to the
subject matter contained in this Agreement. This instrument supersedes all prior negotiations,
representations, and understandings or agreements with respect to the subject matter contained in
this Agreement. This Agreement may be changed or supplemented only by a written instrument
signed by both parties.
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, 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, Lessee agrees
that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute.
8.0 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
4279109 Pages: 10 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes. Clerk and Recorder. Weld County, CO
1111 !VAT AVITACI1PNAV II III
10 of 12
enforced without such provision, to the extent that this Agreement is then capable of execution
within the original intent of the parties.
9.0 Attorneys Fees/Legal Costs: In the event of a dispute between County and Contract
Professional, 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.
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, and associated Exhibits, 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, Lessee shall provide the County with proof
of Lessee's authority to enter into this Agreement within five (5) days of receiving such request.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.
PROPERTY OWNERS:
SIGNATURE
PRINTED NAME d O
TITLE (If Applicable)
STATE OF COLORADO
County of Weld
s 7`o r
)
SS.
i _
MATTHEW HAYMOND SKINNER
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20164024514
MY COMMISSION EXPIRES JUNE 28, 2020
l
The foregoing instrument was acknowledged before me this ZZ day of atiosaa4Larr, 2016,
by L,/a.- L0 -b-,
WITNESS my hand and official seal.
PROPERTY OWNERS:
SIGNATURE
V i r
NoMIL)
blic
Pi/74,1-a, V
Aar,' -,1
PRINTED NAME l,.! e (-d1 • 1 e e es b r
TITLE (If Applicable)
4279109 Pages: 11 of 16
02/16/2017 02:41 PM R Fee:$0.00
Car.y Koppes, Clerk and Recorder. Weld County, CO
In I �.rL' v k��:����� �'' M' '�«+��f,�fi�I�:�M,'rl' ii�'��� �� ��
11 of 12
STATE OF COLORADO
County of Weld
)
)
)
SS.
MATTHEW HAYMOND SKINNER
NOTARY PUBUC
STATE OF COLORADO
NOTARY ID 20164024514
MY COMMISSION EXPIRES JUNE 28, 2020
The foregoing instrument was acknowledged Lbefore me this 22 day of /14./.4,4.a..,.-2016,
by / /sK- /oid Loth)
WITNESS my hand and official seal.
LESSEE (If Applicable):
SIGNATURE
C +re
PRINTED NAME ae E FF
TITLE
STATE OF COLORADO
County of Wcld Set trs
C.
/V 54 .S ,/
)
)
)
ss.
The foregoing instrument was acknowledged before me this 30 day of lioucw.bc r, 2016,
by Se C. Mctso" , ✓P/Gn i3Avo l.Je sfer� LLB
WITNESS my hand and official seal.
CODY L. WAGONER
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20084037465
MY COSIISSION EXPIRES DECEMBER 13, 2018
ATTEST: W_,EntA •� BOARD OF COUNTY COMMISSIONERS
er o Weld oi1n4 he : oar WELD COUNTY, COLORADO
BY
Deputy C
APPROVE
rkt•the B
AS TO FORM:
County Attorney
Leu 0
ulie A. Cozad, Chai1.� FEB 0 8 2017
ROVED AS T SUBSTANCE:
ed Ojfial or Department Head
U:\Engineering\PLANNING — DEVELOPMENT REVIEW\ -2015 Planning Referrals\USR15\USR15-0020 Whiting-Castor\Whiting - Castor
(USR15-0020)- Part 2 Final IA (2-25-16).docx
4279109 Pages: 12 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
of 12
id° / V-41-4---
lIII leciNtliVIV:1101t1 VIAL fi Icor "III
EXHIBIT A - Cost Sheet (OFF -SITE)
Name of Facility: IJ,1akg..erts. S WD
Personnel Contact: Name Clay wo .L,.
Filing/Case #: USR IS-OO%O Location: CR to q ♦ 11'5
"Title: Sr Agt. - &.3 + Row Phone: 303 -rl63 -3)O5
bou nd. tine undensi ned : tpplicant hereby agrees to provide throu,ehout this facility the following improvements.
Improvements
(Leave spaces blank where they do not apply)
(OFF -SITE)
uantity
Units
Unit Costs (S)
Estimated Construction
Cost ($)
],PUBLIC
WORKS]
Site
Grading
Street Grading
Street
Base, Gravel for Parking
Street
Paving
Pavement Marking
Curbs, Gutters, and Culverts
Sidewalk
Stormwater/Drainage Facilities
Retention / Detention Ponds
Road
Culvert
Grass
Lined Swale
Ditch Improvements
Subsurface
Drainage
Entrance/Access Improvements
Erosion Control
Measures/BMP's
Road Maint. Collateral (per Sec. E.-7.5)
1r nee 'WOO 'I
Dust Control (per Sec. E.-7.5.2)
Fire
Hydrants
Survey, Street Monuments/Boxes
,PLANNING
SERVICES1
Parking Area, Curb Stops, Bus Kiosks
Street Lighting
Street Names
Signage
Fencing
Requirements
Landscaping, Seeding, Trees, etc.
Park Improvements
Handicap
Accessibility,
Parking &
Rails
Septic
Systems
SUB -TOTAL:
,f ?SOO
(Testing, inspection, as -Built plans and ark in adcition to preliminary' and
Engineering and Supervision Costs ($) final plat; supervision of actual construction by contractors)
4279109 Pages: 13 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County CO
AND SUPERVISION ($)
�4tLG i Ili BIM
EXHIBIT A - Cost Sheet (OFF -SITE) - Signature Page
The above improvements shall be constructed in accordance with all County requirements and specifications,
and conformance with this provision shall be determined solely by Weld County, or its duly authorized agent.
Said improvements shall be completed according to the construction schedule set out in Exhibit B
By:
Applicant
5.r Asc..A 4 Co --art "R.ocia Date 1- t , 20 I6
Title
By:
Applicant
Title
4279109 Pages: 14 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
'h Ll'h ihrthii VII:111.1%11 N4'� Iv II II
Date , 20
EXHIBIT B - Time Schedule- Signature Page
The County, at its option, and upon the request of the Applicant, may grant an extension of time for completion
for any particular improvements shown above, upon a showing by the Applicant that the above schedule cannot
be met.
.11 r A A- C a► -o) 4 R O L)
I
Title
By:
Applicant
Title
4279: l09 Pages: 15 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Coppes, Clerk and Recorder, Weld County, CO
VIII !I) WO N'c'h' urr him ,Yvh "III
Date % Z- '
20 16
Date , 20
O:\New Version Agreement\Exhibits\2013\Exh B Time Schedule-FINAL(2013).xlsx
EXHIBIT B - Time Schedule (ON -SITE) & (OFF -SITE)
Name of Subdivision, PUD, USR, RE, SPR: W:1O1.4.4- se_ 5 tap
Filing/Case #:0510 S'-0020 Location:CR.l O4 t l 3
Intending to be legally bound, the undersigned Applicant pplicant here/n' agrees to provide throughout this facility the following improvements.
All improvements shall be completed within years from the date of approval of the final plat.
Construction of the umprovements listed in Exhibit A shall be completed as follows:
Improvements
(Leave spaces blank where they do not apply)
Time Schedule
(ON --SITE)
(OFF -SITE?
IPUBLIC
WORKS j
Site Grading
Street Grading
Street Base, Gravel for Parking
Street Paving
Pavement Marking
Curbs, Gutters, and Culverts
Sidewalk
Stormwater/Drainage Facilities
Retention / Detention Ponds
Road Culvert
Grass Lined Swale
Ditch Improvements
Subsurface Drainage
Entrance/Access
Erosion Control Measures/BMP's
Fire Hydrants
Survey, Street Monuments/Boxes
jPLANNING
SERVICES j
Parking Area, Curb Stops, Bus Kiosks
Street Lighting
Street Names
Signage
Fencing Requirements
Landscaping, Seeding, Trees, etc.
Park Improvements
Handicap Accessibility, Parking & Rails
Septic Systems
Final Completion Date for Entire Project
C.O,plo 4 ea..)
4279109 Pages: 16 of 16
02/16/2017 02:41 PM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
■III�.r���.4�1�� �'�l�:W�i��+N�E��k���f�14� i�N BIM
Bond No. SUR0040838
PERFORMANCE BOND FOR
BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO
KNOW ALL PERSONS BY THESE PRESENTS, that BNN Western, LLC a
corporation, organized under the laws of the State of Colorado, with its
principal office located at 370 Van Gordon St., Lakewood, CO 80228,
hereinafter called "Principal", and Argonaut Insurance Company,
hereinafter called "Surety" are held and firmly bound unto Board of County
Commissioners of Weld County, Colorado, on behalf of Weld County,
Colorado, hereinafter called "Obligee" in the full and penal sum of Two
Thousand Four Hundred and No/100 Dollars ($2,400.00), lawful money of the
United States for the payment of which well and truly made, we bind
ourselves, our heirs, administrators, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the above -bound Principal has obtained or is about to
obtain from the Obligee a land use permit, namely (insert the specific
permit and number - USR, SPR etc) USR15-0020 and pursuant to the
requirements of said permit, has entered into an Improvements Agreement,
dated November 30, 2016, with Obligee, and
WHEREAS, The Improvements Agreement requires Principal to obtain a
performance bond in an amount equal to the total cost of the improvements
for which Principal is responsible and naming Obligee as beneficiary, and
WHEREAS, the value of improvements for which Principal is
responsible equals Two Thousand Four Hundred and No/100 Dollars,
($2,400.00), and
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if
Principal shall well, truly and faithfully perform its duties, and all of
its undertakings, covenants, terms, and conditions as set forth in the
Improvements Agreement, and if Principal shall satisfy all claims and
demands set forth in said agreement, and shall fully indemnify and save
harmless Obilgee from all costs and damages which it may suffer by reason
of Principal's failure to perform as agreed, and shall reimburse and repay
Obligee all outlay and expense which Obligee may incur in making good any
default, then this obligation shall be null and void;
PROVIDED FURTHER, that if Principal shall default in any of its
obligations set forth in the Improvements Agreement, and thereafter fail
to fully indemnify and save harmless Obligee from all costs and damages
which it may suffer by reason of said default, this obligation shall
remain in full force and effect;
PROVIDED FURTHER, regardless of the number of years this Bond is in force,
or the number of continuation certificates issued, the liability of the
Surety shall not be cumulative in amounts from period to period and shall
in no event exceed the amount set forth above, or as amended by rider;
PROVIDED FURTHER, that Surety, for value received hereby stipulates and
agrees that no change, extension of time, alteration or addition to the
terms of the Improvements Agreement to the work to be performed
thereunder, shall in any way affect its obligations on this bond, and it
does hereby waive notice of any such change, extension of time, alteration
or addition to the terms of the Improvements Agreement,
PROVIDED FURTHER, this bond is NONCANCELLABLE, and shall renew
annually automatically, from the date of this bond until its release by
Obligee, to guarantee that Principal shall well, truly and faithfully
perform its duties, and all of the undertakings, covenants, terms, and
conditions set forth in the Improvements Agreement, and any extensions
thereof which may be granted by Obligee with or without notice to Surety.
The parties to this Performance Bond acknowledge that through the
Improvements Agreement, Obligee reserves the right to require Principal
to obtain a different Performance Bond from a financial institution other
than Surety in the event that the rating of Surety by AM Best falls below
a B+ rating.
IN WITNESS WHEREOF, this instrument is executed in four (4) counterparts,
each one of which shall be deemed an original, this 19th day of December,
2016.
BNN Western, LLC
Pf incipal Secre itness
Shp. v. Seri 0. CU"
(SEAL)
Witness as Surety, Melanie Hill
By:
Title Ritz &Mocx v?
Argonaut Insu ce Company
R'hard Covin.to , Attorney -in -Fact
818 Town & Country Blvd, Ste 500 P.O. BOX 469011
Address
Houston, TX 77024
Address
Address
San Antonio, TX 78246
Address
IMPORTANT: Surety company executing bond must appear on the Treasury
Department's most current list (Circular 570 as amended) and be
authorized to transact business in the State of Colorado.
Bond must be accompanied with Attorney -in Fact's authority from the
surety company certified to include the date of the bond.
Argonaut Insurance Company
Deliveries Only: 225 W. Washington, 24th Floor
Chicago, IL 60606
United States Postal Service: P.O. Box 469011, San Antonio, TX 78246
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the Argonaut Insurance Company, a Corporation duly organized and existing under the laws of the State
of Illinois and having its principal office in the County of Cook, Illinois does hereby nominate, constitute and appoint:
Marc W. Boots Richard Covington Vickie Lacy, P. T. Osbum Maria D. Zuniga, Joseph R. Aulr,ert,ftshlev Koletar
Their true and lawful agent(s) and attomy(s)-in-fact, each in their separate capacity if more than one is named above, to make, execute, seal and deliver for
and on its behalf as surety, and as its act and deed any and all bonds, contracts, agreements of indemnity and other undertakings in suretyship provided,
however, that the penal sum of any one such instrument executed hereunder shall not exceed the sum of:
$50 000.000.00
This Power of Attorney is granted and is signed and sealed under and by the authority of the following Resolution adopted by the Board of Directors of
Argonaut Insurance Company:
"RESOLVED, That the President, Senior Vice President, Vice President, Assistant Vice Presiden;Secretary, Treasurer and each of them hereby is
authorized to execute powers of attorney, and such authority can be executed by use of facsimile signature, which may be attested or acknowledged by any
officer or attorney, of the Company, qualifying the attorney or attorneys named in the given power of attorney, to execute in behalf of, and acknov,I edge as
the act and deed of the Argonaut Insurance Company, all bond undertakings and contracts of suretyship, and to affix the corporate seal thereto."
IN WITNESS WHEREOF, Argonaut Insurance Company has caused its official seal to be hereunto affixed and these presents to be signed by its duly
authorized officer on the 18th day of July, 2013. ^• Argonaut Insurance Company
.o:
8 SEAL
R`,, see ;'n by:
:4rmotk.
STATE OF TEXAS
COUNTY OF HARRIS 55:
AS -0100230
Joshua C. Betz Senior Vice President
On this 18th day of July, 2013 A.D,r$ l$fe me,j Notary Public of the State of Texas, in and for the County of Harris, duly commissioned and qualified,
came THE ABOVE OFFICER OE THE CANY, to me personally known to be the individual and officer described in, and who executed the preceding
instrument, and he acknowledged Iutexecution of same, and being by me duly sworn, deposed and said that he is the officer of the said Company aforesaid,
and that the seal affixedlei instrument is the Corporate Seal of said Company, and the said Corporate Seal and his signature as officer were
duly affixed and subsc to tree said instrument by the authority and direction of the said corporation, and that Resolution adopted by the Board of
Directors of said GOmpai ', reined to in the preceding instrument is now in force.
IN TESTIMONY WHEREOF, I have hereunto set my hand, and affixed my Official Seal at the County of Harris, the day and year first above written.
„eaati'tturl `M. `YTtt4Jtto
(Notary Public)
I, the undersigned Officer of the Argonaut Insurance Company, Illinois Corporation, do hereby certify that the original POWER OF ATTORNEY of which
the foregoing is a full, true and correct copy is still in full force and effect and has not been revoked.
IN WITNESS WHEREOF, I have hereunto set my hand, and affixed the Seal of said Company, on the 19th day of December 2016
-
Saran Heineman , VP -Underwriting Surety
THIS DOCUMENT IS NOT VALID UNLESS THE WORDS ARGO POWER OF ATTORNEY AND THE SERIAL NUMBER IN THE UPPER
RIGHT HAND CORNER ARE IN BLUE, AND THE DOCUMENT IS ISSUED ON WATERMARKED PAPER. IF YOU HAVE QUESTIONS ON
AUTHENTICITY OF THIS DOCUMENT CALL (210) 321 - 8400.
Hello