HomeMy WebLinkAbout20163125.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Improvements Agreement and Accept Collateral For:
Circle B Land Company, LLC — USR15-0078 RECEIVED
DEPARTMENT: Public Works DATE: 9/27/2016 SEP 2 8 2016
PERSON REQUESTING: Evan Pinkham WELD COUNTY
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Brief description of the issue:
The Department of Public Works received a request from the applicant, Circle B Land Company, LLC, requesting
that the Board of County Commissioners consider approving the Improvements Agreement for the Oil & Gas
Resource Development Facility, (USR15-0078), located on CR 52 east of CR 89.
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, Circle B Land Company, LLC, requesting that
the Board of County Commissioners consider accepting off -site collateral in the form of a Performance Bond from Zurich
American Insurance Company/Fidelity and Deposit Company of Maryland 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 15-0078), 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 -Tern
Julie A. Cozad
Barbara Kirkmeyer
Steve Moreno
Approve
Recommendation
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Schedule as Regular
BOCC Hearing Item Other/Comments:
O: LBOCC PassAroundi USRI5-0078 Passaround-BOCC Hearing Request 2016.docx
2016-3125
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IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Circle B Land Company, LLC — USR15-0078
THIS AGREEMENT is made this day of ait toer , 201k, by and between Circle
B Land Company, LLC, 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, Property Owner is the owner of the property described in the application to Use
by Special Review USR15-0078, referred to as "the Property," which has been approved by the
County, and
WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic
for an extended period of time; and
WHEREAS, the County, and Property Owner are desirous of agreeing to terms involving
regulation of haul routes, traffic control, and road wear arising from such additional traffic.
WHEREAS, as a condition of approval of USR15-0078, the 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 4264087 and D
(Construction Plans), found at reception number N/A respectively, and
WHEREAS, the parties agree that the 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 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 52 right-of-way (ROW);
1.2 Drainage installations;
Page 1 of 13
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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;
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. Required
maintenance of the shared access, or required maintenance of the County Road, will be a
proportional share with the adjoining facility (USR13-0066), which shares the access. If access or
roadway maintenance/improvements are necessary, the proportional share shall be based on the
traffic counts of the two facilities.
2.0 Road Improvements Responsibilities: Property Owner 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, 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 . I laul/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
accesses onto CR 52 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.
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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): 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 County approved haul routes.
Page 2 of 13
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 Property Owner based upon then current vehicle trip
counts that identify traffic loading due to Property Owner'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.
5.0 Off -Site Dust Control/Abatement: The Property Owner 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 Property Owner. 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 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 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 Property Owner'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 Property
Owner's sourced traffic no longer utilizes the above -described haul route and instead utilizes other
portions of County roads, Property Owner 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 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
Page 3 of 13
share of the Off -Site Improvement/Repair Costs, County shall notify Property Owner in
writing that the Off -Site Improvements/Repairs shall be undertaken. Within ninety (90)
days of its receipt of County's notice of the need to undertake the road maintenance
repairs and/or improvements, Property Owner shall submit Off -Site Construction Plans
and Cost Estimates to County for review. Property Owner shall have sole responsibility
for the completion of the repairs and/or improvements on or before December 15 of the
year following County's notice of the need for repairs.
6.3 In County's sole discretion, County may undertake the repairs and/or improvements.
Property Owner's payment for its Proportionate Share of the road repairs/improvements
will be calculated as described in this Agreement.
7.0 Annual Road Inspection: County will conduct a road inspection annually with the
cooperation of Property Owner and all other Property Owner 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 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 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. Safety improvements to help prevent traffic from turning into oncoming traffic,
at the intersections of CR 89 and CR 52, when deemed appropriate by Weld County for the safety
of the traveling public.
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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 roads in the area of the facility
entrance:
a. 200 vehicles per day Mag-Chloride
b. 300 vehicles per day Alternate Pavement
c. 400 vehicles per day Asphalt Pavement
Other roadways Improvements may be triggered due to heavy truck traffic associated with the
facility including additional turn lanes onto CR 52; the following is a list of the triggers for turn
lanes:
a. 25 vph turning right into the facility during a peak hour.
b. 50 vph turning right out of the facility during a peak hour.
c. 10 vph turning left into the facility during a peak hour.
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, Property Owner shall pay a proportionate cost of a complete road restoration.
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.
Page 4 of 13
10.0 Proportionate Share of Road Maintenance Responsibilities:
10.1 Property Owner shall pay its Proportionate Share of costs of dust control/abatement,
paving, repairs, maintenance, improvements, or future road replacement of any
particular Haul Route Road. Property Owner's Proportionate Share shall be based upon
the percentage of traffic on the road that is attributable to Property Owner's facility.
County personnel will determine the percentage based on then current Equivalent Single
Axle Load (ESAL) Counts. Property Owner shall not be responsible for 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 share of costs. 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)
1.0 Landscaping and Fencing Requirements: Property Owner 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 Property Owner 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.
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2.0 On -Site Grading, Drainage Facilities and Paving: Property Owner 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. My other on -site improvements shall be completed as indicated on the accepted Construction
Plans for this facility. Property Owner 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, Property Owner 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
Page 5of13
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, Property Owner agrees that all landscaping and other on -site improvements
shall be completed within the parameters established in this Agreement.
"End of Part 1"
4280212 Pages: 6 of 14
02/22/2017 11:48 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
New 11 II
Page 6 of 13
IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Circle B Land Company, LLC — USR15-0078
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.
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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
Page 7 of 13
party qualified testing company approved by County. Such third party shall furnish the
certified results of all such testing to the County.
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 reasonable 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, such
acceptance not to be unreasonably withheld or delayed, 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.
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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
Page 8 of 13
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
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 l 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 reasonable opinion, Property Owner has
violated any of the terms of this Agreement, County shall so notify Property Owner and shall state
Page 9 of 13
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.
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.
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3.0 Revocation of USR: Property Owner acknowledges that failure to comply with the material
terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option
in its sole reasonable 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:
Page 10 of 13
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 "Property Owner" shall include any individual or entity, including an
"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 or delayed by 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 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.
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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
Page 11 of 13
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
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.
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PROPERTY OWNERS:
SIGNATURE 6)/3't
PRINTED NAME 4pjineP/ . kc 0 )'tS+V (Q. L.
ITITLE (If Applicable) SP u/ Ge Preu-,otekt aU11.LF
STATE OF COLORADO
County of Wed J)eii Lie(
by
)
SS.
The foregoing instrument was acknowledged before me this day of Se Aer
2016.
Ce4 a Wens i
WITNESS my hand and official seal.
PATTY J ADAIR
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 120024005840
MY COMMISSION EXPIRES FEBRUARY 20. 2018
Page 12 of 13
LESSEE (If Applicable):
SIGNATURE
PRINTED NAME
TITLE
STATE OF COLORADO
SS.
County of Weld
The foregoing instrument was acknowledged before me this day of , 2016,
by
WITNESS my hand and official seal.
Notary Public
ATTEST:
Weld
BY:
adrif44) sei0;ei
BOARD OF COUNTY COMMISSIONERS
lerk to the BoarWELD COUNTY, COLORADO
Deputy Cle/ to the
APPROVED AS TO FOR
County Attorney
3
rettie
ike Freeman, Chair
OCT 0 5 2016
PPROVED AS e SUBSTANCE:
tfie
Exec. e OW ' • . or Depa em Head
U:\Engineering\PLANNING — DEVELOPMENT REVIEW\ -2015 Planning Rcterrals\USR15\USR15-0078 Circle B\Improvements
Agreement\Circle B (USR15-0078) - Part 2 Final IA (6-27-16).docx
4280212 Pages: 13 of 14
02/22/2017 11:48 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
INCI ik *hi'Il �Ptit Kfill64'i l% It 11111
Page 13 of 13
EXHIBIT A - Cost Sheet
Name of Facility: CB Williams Storage Yard
Personnel Contact: Name Doug Dennison
Filing/Case #: USR15-0078
Location:
Title: Gov't. Affairs Liaison Phone: 970-353-0407
Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this facility the following improvements.
Improvements
(OFF -SITE IMPROVEMENTS)
J,PUBLIC
WORKS,
cost ($1
Road Maint. Collateral (per Sec. E.-7.5)
(Paved Road = S3600 Gravel Road = S2400)
$2,400.00
TOTAL COST ($)
$2,400.00
EXHIBIT B - Time Schedule
FINAL ESTIMATED COMPLETION DATE FOR PROJECT
3/31/17
EXHIBIT A (Cost Sheet) & EXHIBIT B (Time Schedule) - Signature Portion
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:
vvcrL
Applicant/Lessee/Property Owner
Y4Mn4'L A . WorsMith
Printed Name
Se n4 a i Wu lhJi 01 6fr4.fnif QjjtiLt(
�t
Title
By:
Applicant/Lessee/Property Owner
Printed Name
Title
Date
q
q
,20 Ho
4280212 Pages: 14 of 14
02/22/2017 11:48 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
!ePL 1 Phil UM IcYNI 44. 11111
Date . 20
N
PERFORMANCE BOND FOR
BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO
Bond No. LPM9224684
KNOW ALL PERSONS BY THESE PRESENTS, that (name)Circle B Land
Company, LLC , (address) 1099 18th Street, suite 2300, Denver, CO 80202
, a (limited liability company) organized under the laws of
the State of Cala(a d& , with its principal office located at
(address) 1099 18th Street, suite 2300, Denver, CO 80202
hereinafter called "Principal", and (name of surety) Fidelity and
Deposit Company of Maryland , of (address of surety) 1400
American Lane, Schaumburg, IL 60196 , 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) Special Review USR15-0078
and pursuant to the requirements of said permit, has entered into an
Improvements Agreement, dated , 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 Obilgee 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;
Wichita, KS 67201
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 14th
day of September , 2016.
Circle B Land Company, LLC
Principal
Principal Secretary/Witness
(SEAL)
Ivey Bec., itness
litt,ora
BY:mi fl .£& K5 J �n f 5k v--fi,, t- RICO'
Fidelity and Deposit Company of Maryland
By:
Deere estmorelana, • torney-in-Fact
2 PO Box 2992
Address
Address
Wichita, KS 67201
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.
Iftb
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New
York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY
AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by
THOMAS O. MCCLELLAN, Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said
Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby
nominate, constitute, and appoint Bret S. BURTON, Tim H. HEFFEL, Desiree E. WESTMORELAND, Timothy Craig Smith, David B.
McKinney, Simon KINDEL and Ivey M. BECK, all of Wichita, Kansas, EACH its true and lawful agent and Attorney -in -Fact, to make,
execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of
such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and
purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE
COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND
SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT
COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons.
The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of
the By -Laws of said Companies, and is now in force.
IN WITNESS WHEREOF, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said
ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 11th day of February, A.D. 2016.
ATTEST:
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
BY:
Secretary
Eric D. Barnes
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Vice President
Thomas O. McClellan
State of Maryland
County of Baltimore
On this 11th day of February, A.D. 2016, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, THOMAS
O. MCCLELLAN, Vice President, and ERIC D. BARNES, Secretary, of the Companies, to me personally known to be the individuals and officers
described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, deposeth and saith, that
he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that
the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said
Corporations.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written.
9kaitt;-
Maria D. Adamski, Notary Public
My Commicsion Expires: July 8, 2019
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POA-F 076-6692B
EXTRACT FROM BY-LAWS OF THE COMPANIES
"Article V, Section 8, Attorneys -in -Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President
may, by written instrument under the attested corporate seal, appoint attorneys -in -fact with authority to execute bonds, policies,
recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such
attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any
time."
CERTIFICATE
I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN
CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the
foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of
the By -Laws of the Companies is still in force.
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998.
RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary
and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such
facsimile signature and seal shall be valid and binding on the Company."
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of
May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a
meeting duly called and held on the 10th day of May, 1990.
RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature
of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a
certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect
as though manually affixed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies,
this / Q1h day of s_VRyia,at , 20 i .
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Michael Bond, Vice President
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