The URL can be used to link to this page

Browse Search

Home My WebLink About20162081.tiff'p r DEPARTMENT: Public Works DATE: 6/8/2016 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Improvements Agreement and Accept Collateral For: Side Rail Holdings, LLC, c/o Gerrard Investments, LLC — USRI5-0075 RECEIVED PERSON REQUESTING: Evan Pinkham WELD COUNTY COMMISSIONERS Brief description of the issue: The Department of Public Works received a request from the applicant, Tom Donkle/Gerrard Excavating, Inc., requesting that the Board of County Commissioners consider approving the Improvements Agreement for the Construction Business Facility, (USR 1 5-0075), located at CR 13 & SH 34, east of the city of Loveland. 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. Revisions to Part 2 of the Agreement were made, and approved by Frank Haug/Assistant County Attorney. JUN 1 0 2016 The Department of Public Works received a request from the applicant, Tom Donkle/Gerrard Excavating, Inc., requesting that the Board of County Commissioners consider accepting off -site collateral in the form of a Custodial Escrow Account Check — 1031 Services, Inc.. (Signature Bank) in the amount of $3,600.00, 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 Department's 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 of site collateral for (USR l 5-0075), and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Mike Freeman, Chair Sean P. Conway. Pro-Tem Julie A. Cozad Barbara Kirkmeyer Steve Moreno Approve Schedule as Regular Recommendation BOCC Hearing Item Other/Comments: me ca,/ W. Evan Pinkham 8O(1 ' Pass, I rnund' ( SRI 5-0075 Passaround-BO( 1 ' Ilearcng Reque ct 2016 clna ComcAtartaiL -ter-« 1- 3-'t# 2016-2081 PLago`6 IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Side Rail Holdings, LLC, c/o Gerrard Investments, LLC — USR15-0075 THIS AGREEMENT is made this actday of Jj x.ne , 2016, by and between Side Rail Holdings, LLC, a Colorado limited liability company, Gerrard Investments, LLC, a Colorado limited liability company, hereinafter referred to as "Property Owner," and the County of Weld, by and through its Board of County Commissioners, hereinafter referred to as "County." WITNESSETH: WHEREAS, Side Rail Holdings, LLC is the owner for the purposes of completing a 1031 tax -deferred exchange of the property described in the application to Use by Special Review USR15-0075, referred to as "the Property," which has been approved by the County, and WHEREAS, upon completion of the 1031 tax -deferred exchange, Side Rail Holdings, LLC intends to transfer ownership of the Property to Gerrard Investments, LLC; and WHERES, it is the intention of the Parties that Side Rail Holdings and Gerrard Investments, LLC shall be jointly and severally liable for Property Owner's obligations pursuant to this Agreement; and WHEREAS, as a condition of approval of USR15-0075, Property Owner agrees to complete the improvements required by this Agreement; pursuant to Exhibit A (Costs) and Exhibit B (Schedule) which are included, and depicted in the Plat Map and, if applicable, the set of accepted Construction Plans, copies of which shall be attached to this Agreement as they become available and made a part hereof, as Exhibits C (Plat Map), found at reception number 4215392 and D (Construction Plans), found at reception number N/A respectively, and WHEREAS, the parties agree that Property Owner shall provide collateral for all off -site improvements required by this Agreement before the Property Owner 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 Property Owner shall be responsible for the construction and maintenance of the following of 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 of not less than sixty (60) feet at the main entrances and exits which extend partially into CR 13 right-of-way (ROW); 4220606 Pages: 1 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes Clerk and Recorder. Weld County CO III :1 of 12 o� O th oil 1.2 Drainage installations; 1.3 Signage Installations; 1.4 Standard County approved tracking control, placed across the entire width of the roadway, to eliminate the tracking of mud and debris onto the adjacent Public Road; Granting of any new point(s) of access to the Property 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: Property Owner is solely responsible for all designated Off -Site 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 Property Owner 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/TraN el 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 13 for further dispersal north to US 34 and south to CR 54 (the "Haul Routes"). Any additional 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 Haul Routes, 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): Property Owner 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 the Haul Routes. Such requirement is not applicable under the existing Haul Route. 4220606 Pages: 2 of 19 07/20/2016 12:21 PM R Fee:$0.00 f12 Carly Koppes Clerk and Recorder. Weld County CO VIII Fr rlljTiwi') i 4irri,ii'? ialv: 1P N'IT WI'?: 'ISM` III 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 Property Owner based upon then current vehicle trip counts that identify traffic loading due to Property Owner's facility as a percentage of total trip counts using such route. 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. 5.0 Off -Site Dust Control/Abatement: In event Property Owner uses unpaved County roads as haul routes, Property Owner is required to provide dust abatement along such 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 Property Owner as described in this Agreement. 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 Property Owner'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: Property Owner will be financially responsible for its pro rata share of the maintenance, 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. 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 a 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 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 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 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). 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 Property Owner in writing that the Off -Site Improvements/Repairs shall be undertaken. County shall undertake the repairs and/or improvements, or, in the alternative, Property Owner may make such repairs upon notice to and approval by the County. Property Owner's 4220606 Pages: 3 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes Clerk and Recorder, Weld County, CO 1111 14!r rMiiiiiiIiii? Neill filliCkftli J ttliirlitill i, Ill!! 2 payment for its Proportionate Share of the road repairs/improvements will be calculated as described in this Agreement. Under some circumstances, the County may require Property Owner to complete the repairs. In such event, Property Owner shall, within ninety (90) days of its receipt of County's notice of the need to undertake the road maintenance repairs and/or improvements, 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 need for repairs. Notwithstanding the foregoing, under no circumstances shall Property Owner be responsible for more than its Proportionate Share of such repairs. 7.0 Annual Road Inspection: County will conduct a road inspection annually with the cooperation Property Owner and all other parties 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 Property Owner 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 Property Owner to pay a proportionate share of the cost of such improvements. Future improvements will be subject to any Federal, State or County regulations in place at the time the improvement project is initiated. Property Owner will be responsible for its Proportional Share for the installation of improvements (Signal, South Bound Right turn lane and West Bound deceleration lane), at the intersections of CR 13 and CR 54, when triggers are met. Property Owner will be responsible for its Proportionate Share for the installation of improvements, at the UPRR and GWRR Railroad crossings on CR 13, when deemed appropriate by Weld County for the safety of the traveling public and approved by the Public Utilities Commission. In the event the Haul Routes include unpaved roads, below is a list of triggers for the improvements for the upgrading, widening, and/or paving of County maintained unpaved roads in the area of the facility entrance: 200 vehicles per day Mag Chloride 300 vehicles per day Alternate Pavement 400 vehicles per day Asphalt Pavement Other roadway improvements may be triggered due to heavy truck traffic associated with the facility including additional turn lanes onto CR 13; the following is a list of the triggers for turn lanes, based on truck traffic: a. 25 vph turning right into the facility during a peak hour on a recurring basis. b. 50 vph turning right out of the facility during a peak hour on a recurring basis. c. 10 vph turning left into the facility during a peak hour on a recurring basis. 9.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road 4220606 Pages: 4 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes Clerk and Recorder Weld County CO 1111 WIllid ' tIurJWVI«J' itillI ;;44��:�'�� !e4of12 damage increases beyond the point that repair of damage cannot maintain the road in a safe and usable condition, Property Owner shall pay its Proportionate Share of a complete road restoration if its vehicles are responsible for such damage Notification to the Property Owner 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 Property Owner shall pay its proportionate share (as defined in this Agreement) of costs of dust control/abatement, paving, repairs, maintenance, improvements, or future road replacement of any particular Haul Route Road. The term "Proportionate Share" in this Agreement shall mean Property Owner's share based upon the percentage of traffic on the road that is attributable to Property Owner's s facility. County personnel will determine the percentage based on then current Equivalent Single Axle Load (ESAL) Counts. Property Owner's shall not be responsible for traffic and damage caused by such traffic that is not sourced from the Property Owner's facility. 10.2 The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's Proportionate Shares. 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 Proportionate Share of costs. 11. Road Maintenance Collateral: Property Owner shall post Road Maintenance Collateral as described by Part 2 of this Agreement. C. On -Site Improvements (Not Applicable) "End of Part I" 4220606 Pages: 5 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes Clerk and Recorder, Weld County. CO II III f!rjI'Ni4 Ili 1iii4till U:\Engineering\PLANNING - DEVELOPMENT REVIEW\ -2015 Planning Referrals\USR15\USR15-0075 Gerard -Weld LV\Gerrard-Side Rail Page 5 of 12 (USR15-0075) - Part 1 Final IA (6-7-16).docx 4220606 Pages: 6 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes Clerk and Recorder, Weld County CO sage 6ofl2 IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Side Rail Holdings/Gerrard Investments — USR15-0075 Part 2: General Provisions A. General Requirements: 1.0 Engineering Services: Property Owner 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 Property Owner 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, Property Owner 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: Property Owner 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 Property Owner. 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 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 by County. Such third party shall furnish the certified results of all such testing to the County. Page 6 of 12 4220606 07/20/2016 1 Carly Koppes 1111 k��1�'.t��N� ��I ��'Gi�1 k'��E�Mii itik III II I Pages: 7 of 19 2:21 PM R Fee:$0.00 Clerk and Recorder. Weld County CO 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 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. 3.4 Permits. Property Owner 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: 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 said design and construction of improvements, and pay any and all judgments rendered against the County on account of any such suit, action or claim, 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. 5.0 Acceptance of Off -Site Improvements by the County: Upon written request by the Property Owner, the County shall accept the Property Owner's off -site improvements, if the following conditions are met: • The off -site improvements have been completely constructed, and • The Property Owner'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 Property Owner. 6.0 Warranty Period: Property Owner agrees to warrant the improvements for two years from Page 7 of 12 4220606 Pages: 8 of 19 07/20/2016 12:21 PM R Fee:$0.00 Car y Koppes Clerk and Recorder Weld County, CO VIII �+I!jfilif Viol !Ira kiliIiiilv), II II the date the improvements are accepted by the County. Upon completion of the two-year warranty period and at the request of the Property Owner, the County Engineer shall inspect the improvements and direct the Property Owner to correct any deficiencies. The County Engineer shall re -inspect after all corrections have been 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 Property Owner to provide collateral to guaranty all of Property Owner'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 — Property Owner 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, Property Owner has violated any of the terms of this Agreement, County shall so notify Property Owner and shall state with specificity the facts and circumstances which County believes constitute the violation. Property Owner shall have thirty (30) days within which to either cure the violation or demonstrate compliance. Thereafter, County may seek any remedy described in this Agreement or otherwise provided by law. 4220606 Pages: 9 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppel, Clerk and Recorder, Weld County CO figri 1105 11111 Page 8of12 2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of the following events: 2.1 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. 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 Property Owner 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. 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. 2.2 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. 2.3 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. 3.0 Revocation of USR: 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. 4.0 County Completion of Improvements / Accessing Collateral: County reserves the right to access any collateral provided by Property Owner in order to complete the improvements required under this Agreement, if Property Owner 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 any individual or individuals appointed by the County Engineer to act on his/her behalf 1.2 All references to "Property Owner" shall include any individual or entity, including an 4220606 Pages: 10 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes. Clerk and Recorder. Weld County, Co ■�� 1�1� din '�X�IW�N��tiFJ,,�� 11111 D^^P 9 of 12 "Operator", who is acts on behalf of the Property Owner regarding this Agreement. 2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Property Owner without the express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. 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. Consent to a delegation or an assignment will not be unreasonably withheld by County. In the event of an annexation of all or any portion of the Property or Haul Routes, the contractual rights and obligations between the original parties to this agreement shall continue until they are completed, legally transferred, or terminated as a matter of law. All of the terms and conditions set forth in this Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of Property Owner, 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, Property Owner 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 enforced without such provision, to the extent that this Agreement is then capable of execution Page 10 of 12 4220606 Pages: 11 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, WP1d Count, CO VIII FrosAirlhliatll it', Wit V.' i CIA'i 11111 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, 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. 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 TITLE (If Applicable) STATE OF COLORADO County of Weld Liet aLnebr r pf - S,eu 1 -!tags SS. r LLc- KRISTEN L HANSEN NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20044024613 MY COMMISSION EXPIRES APRIL 17, 2017 The foregoing instrument was acknowledged before me this by Lk WITNESS my hand and official seal. Notary Public LESSEE or Other Property Owners (If Applicable): SIGNATURE day of alija, 2016, PRINTED NAME HeAlkaiN Cur ro rA TITLE Moat ' (ku-aq-A T,oyShr�s n�S LlL r 4220606 Pages: 12 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes: Clerk and Recorder, Weld County: CO Pt' (IA tfirolik5 1. 11111 if12 STATE OF COLORADO County of Weld by ss. KRISTEN L HAW NOTARY PUB( CrATE OF COW l0 20044 -y°'RES 11 2017 + rrThe forego'ng instrument was acknowledged before me this — day of itud2_, . 2016, L1alnitn b u- retr A WITNESS my hand and official seal. 4-€4"1"S Notary ublic ATTEST: Weld C BY: Jeido:44 BOARD OF COUNTY COMMISSIONERS ty Clerk to the Board WELD COUNTY, COLORADO Deputy Cl ROVE County Attorney Freeman, Chair r juN 2 9 Wa U:\Engineering\PLANNING — DEVELOPMENT REVIEW\ -2015 Planning Referrals\USR15\USRI5-0075 Gerrard -Weld LV\Gerrard-Side Rail (USR15-0075)- Part 2 Final IA (6-7-16).docx 4220606 Pages: 13 of 19 07/20/2016 12:21 PM R Fee:$0.00 o112 Carly Koppes, Clerk and Recorder, Weld County CO i1I' i l 11 III 02O/6• - .4o/l EXHIBIT A - Cost Sheet (OFF -SITE) Name of Facility: Gerrard Headquarters Personnel Contact: Name Nathan Gerrard Filing/Case #: USR15 - 0 0 7 5 Title: Manager Location: 27154 CR 13 Phone: 970-669-1463 Intending to be legal/t' bound, the undersigned Applicant hereby agrees to provide throughout thisfaci/itv thefo//owing improvements. Improvements (Leave spaces blank where they do not apply) (OFF -SITE) Quantity Units Unit Costs ($) Estimated Construction Cost (S) I 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) $ 3 , 6 0 0 Dust Control (per Sec. E.-7.5.2) Fire Hydrants Survey, Street Monuments/Boxes ,LPLANNING SERVICES, 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: $3, 600 (Testing, inspection, as -built plans and work in adc Engineering and Supervision Costs ($) final plat; supervision of actual construction ition to preliminary and by contractors) 4220606 Pages: 14 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes. Clerk and Recorder: Weld County. CO VIII Pei1rjti,?, 4116 !. iiiii I f'ilti !'1 hra . DM 14,11111 4;G AND SUPERVISION ($) 3 , 600 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 Manager Title By: Applicant Title 4220606 Pages: 15 of 19 07/20/2016 12:21 PM R Fee:$0.0 d County Co Carly Koppes, Clerk and Recorder, ■III t�!��'��I ?�'.tiN'! I1 �l�rh'�J !i Mt H�' � YAM, 11111 D.tefr-", 8 .zo Date , 20 •N/A �• ��• •�• ��L•••. $►1:T . 43 ilea{Q .I• ' �OOOO : 5 5 5 5 5 5 5 5 5• S S S S•• Name of Facility: Personnel Contact: Name Filing/Case #: Title: Location: Phone: Intendin,; to be leeallt' bound, the « ndersignedApplicant herebi' agrees to provide throughout thirJacility thefollowing improvements. Improvements (Leave spaces blank where they do not apply) ':': .,•.:•. .. ...... ;'• •.•.•.•.•.•:•:•:•. .�•. • . :•. • • .•.•.•: .•.•:•,•:•.•.•.•.•:�:•:•:•:•:•.•:•:•:•:•.•.•:•:•:•:•:•, Units :p : : •: . . Estimated Construction . Unit Costs ($) Quantity Cost (5) £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 (per Sec. E.7.2) Erosion Control Measures/BMP's Road Maint. Collateral (per Sec. E.7.5) Dust Control (per Sec. E.7.5.2) Fire Hydrants Survey, Street Monuments/Boxes £PLANNING SERVICES£ 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: (Testing, inspection, as -built plans and work in adc Engineering and Supervision Costs ($) final plat; supervision of actual construction ition to preliminary and by contractors) 4220606 Pages: 16 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder. Weld County CO ■III ��ll��lr.��'IW� C'i�F hill Pt IIII��I II VG AND SUPERVISION ($) ........ .. ..... T�Ei:lieet t ...................... 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. . . . . . . IMP . . • . .• • • . . . . Said improvements shall be completed according to the construction schedule set out in Exhibit B By: Applicant Title By: Applicant Title 4220606 Pages: 17 of 19 07/20/2016 12:21 PM R Fee:$0.00 $0.0 d County, , CO Carly Koppes, Clerk and Recorder, ■ III .rl�l� � We■1 III Date , 20 Date , 20 EXHIBIT B - Time Schedule (ON -SITE) & (OFF -SITE) Name of Subdivision, PUt). I SR, RE, SPR: USR15 - 0 0 7 5 Filing/Case #: Location: 27154 CR 13 Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this facility the following improvements. All improvements shall be completed within 2 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 the;' do not apply) Time Schedule ON -SITE.' (OFF -SITE 1 ,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 Erosion Control Measures/BMP's Fire Hydrants Survey, Street Monuments/Boxes IPLANNING SERVICES] 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 2019 N/A 4220606 Pages: 18 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder. Weld County. CO II 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. By: Appli ant Manager Title By: Applicant Title 4220606 Pages: 19 of 19 07/20/2016 12:21 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder Weld County. CO I'll Enid II: i 1I1X fir II Date94,*,4, 20 / p Date , 20 O:\New Version Agreement\Exhibits\2013\Exh B Time Schedule-FINAL(2013).xlsx 1012 1031 SERVICES, INC. CUSTODIAL ESCROW ACCOUNT 40 LAKE BELLEVUE DR., SUITE 275 BELLEVUE, WA 98005 PAY TO THE ORDER OF L,J FOR C F-' a/ ,;, IGNIATUFLE B ANK Client Private Client Group 131 565 Fifth Avenue 12th Floor O (,12 O O T c 0 U 0 0 a co 0 m -c cu a) O PO Box 758 Greeley CO 80632 c DATE L' a-1(4, 1-1357-260 ' /()Ii fled, 4- f /ems ---DOLLARS 8 E::: RECEIPT DATE to- .�-�- t10 RECEIVED FROM I O L S ADDRESS red- `�Gu Sciti4 klitACUtd I ?j) !00© .92 - FOR Cotta a --r- tcLatal NO. 88773 AID: CHEtr`N:;::. ORDER BY we Hello