HomeMy WebLinkAbout20163312.tiffRECEIVED
OCT 1 7 2016
WELD COUNTY
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS
Pass Around Request
RE: BOCC Agenda Item -Accept Payment for NGL USR-1747
BOCC STAFF USE
Date Set: Time:
DEPARTMENT: WELD COUNTY PUBLIC WORKS DATE: October 17, 2016
PERSON REQUESTING: Janet Lundquist Extension: 3726
Brief description of the issue: (please select one) U Informational only X Action needed
USR-1747 was approved by the Board of County Commissioners on August 18, 2010. The Improvements Agreement and
Collateral were accepted by the Board of County Commissioners on March 30, 2011. The Improvements Agreement
required the applicant to pay the proportional cost share for the improvements at the intersection of SH 392 and CR 74.
Due to increase in traffic volumes improvements to intersection were triggered and are scheduled to be constructed in
2017. In accordance with the Improvements Agreement the Department of Public Works received the proportional cost
share for the intersection of SH 392 & CR 74 in the amount of $1,000,000.00 in the form of a company check (Bank of
America 421011645).
If a Work Session is required, recommended length of time needed for discussion:
15 min
If a Work Session is required, In addition to yourself and the board, who should attend?
Jay McDonald, Evan Pinkham, Esther Gesick, Tisa Juanicorena & Frank Haug
What options exist for the Board? (Include consequences, impacts, costs, etc. of options)
Option A: Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
Option B: Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendations:
Option A: Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
Mike Freeman, Chair
Sean P. Conway, Pro-Tem
Julie Cozad
Barbara Kirkmeyer
Steve Moreno
BOARD CHAIR USE
Results/Outcomes:
Approve
Recommendation
Schedule Other
Work Session Comments:
2016-3312
denr2ed
/0-029- 0204
PLaor3
TO THE
NGL Water Solutions DJ, LLC
a subsidiary of NGL Energy Partners, LP
3773 Cherry Creek North Dr, STE 1000
Denver, CO 80209
ORDER OF:
Bank of America.
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One Million Dollars And 00 Cents************** ********************
WELD COUNTY PUBLIC WORKS
1111 H STREET PO BOX 758
GREELEY.CO 80632 US
Void After 90 Days
88-130/1119 TX
ODPv
04-OCT-16
4251011645 1
"$1,000.000.00
RR IWl'i,-�
Of -)CDC
CHECK DATE
CHECK NO.
PAYEE
CHECK AMOUNT
04-OCT-16
4251011645
Weld County Public Works
$1,000,000.00
INVOICE #
INVOICE DESCRIPTION
INVOICE DATE
INVOICE AMOUNT
DISCOUNT TAKEN
INVOICE AMT PAID
080416 -WELD
C7 PROPORTIONAL SHARE
TRAFFIC CONTRIBUTIONS
04-AUG-16
1,000,000.00
0.00
1,000,000.00
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NO. 88938
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ORDER
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BY �i
Doug White
NGL Water Solutions, LLC
3773 Cherry Creek North Dr.
Denver, CO 80209
PUBLIC WORKS DEPARTMENT
1111 H STREET
P.O. BOX 758
GREELEY, COLORADO 80632
PHONE: (970)-304-6496, EXT. 3742
August 31, 2016
RE: Weld County Road 74 & State Highway 392 Intersection Improvements Project
Dear Mr. White,
As you know, this important safety project proposes to realign the intersection of State Highway
(SH) 392 at Weld County Road (WCR) 74 and WCR 69 between milepost 131.5 to 132.0. The work
will add dedicated turn and acceleration/deceleration lanes along SH 392. WCR 74 will be rerouted
north of its current alignment and will intersect both WCR 69 and SH 392 north and northeast of
their current location respectively.
In accordance with USR 1747 and MUSR 14-0017, NGL's Improvements Agreement identifies your
proportional share responsibilities based on your traffic volumes identified in 2010 when the project
was approved by the Weld County Board of County Commissioners. WCR 74 and WCR 69 are not
aligned and connect SH 392 on a skew. With the NGL facility located at the northwest corner of the
existing intersection it exacerbates the unsafe travelling conditions unless the warranted auxiliary
lanes and other improvements are constructed. The relocation of the intersection and the addition of
auxiliary lanes will help solve a portion of the problem, by providing a safe means for your traffic to
enter and exit SH 392 from the main stream of high speed traffic.
Relocating the intersection approximately 1,500 feet north, provides WCR 74 to intersect SH 392 at
90 degree angles for optimum visibility. This also would relocate the offset intersection of WCR 74
and WCR 69 a safer distance away from the CR 74 & SH 392 intersection. The line of sight problem
is compounded as vehicles queue at the intersection, which is occurring more frequently since the
construction of a busy oil and gas facility throughout much of this area.
Per the USR for the NGL site, NGL is responsible for 20% of the construction costs. An invoice was
sent to NGL earlier this year for $1,000,000; although this represents only 15.6% of the estimated
construction costs, Weld County is willing to accept this amount if payment can be made within 60
days. This Project is scheduled to start in late 2016 and early 2017.
r
S. cercxly;
Richard White, P.E.
Engineer III
cc: Jay McDonald, Public Works Director
Janet Lundquist, Support Services Manager
RESOLUTION
RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING
COLLATERAL FOR IMPROVEMENTS, AUTHORIZE CHAIR TO SIGN, AND ACCEPT
COLLATERAL FOR USE BY SPECIAL REVIEW PERMIT #1747 - MARCUM
MIDSTREAM 1995-2 BUSINESS TRUST, DBA CONQUEST OIL (C-7)
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on August 18, 2010, the Weld County Board of Commissioners approved a
Site Specific Development Plan and Use by Special Review Permit #1747 for Marcum
Midstream 1995-2 Business Trust, dba Conquest Oil, 8207 West 20th Street, Suite B, Greeley,
Colorado 80634, for an Oil and Gas Support Facility (Class II Oilfield Waste Disposal Facility —
saltwater injection facility and a water recycling facility) in the A (Agricultural) Zone District, on
the following described real estate, to -wit:
Lot A of Recorded Exemption #5008, being part of
the E1/2SE1/4 of Section 34, Township 7 North,
Range 63 West of 6th P.M., Weld County, Colorado
WHEREAS, pursuant to certain Conditions of Approval, the Board has been presented
with an Improvements Agreement According to Policy Regarding Collateral for Improvements
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Marcum Midstream 1995-2 Business Trust, dba Conquest
Oil (C-7), with terms and conditions being as stated in said agreement, and
WHEREAS, the Board has been presented with Performance Bond #LPM9032136 from
Fidelity and Deposit Company of Maryland, 1400 American Lane, Schaumburg, Illinois 60196,
in the amount of $65,000.00, and
WHEREAS, after review, the Board deems it advisable to approve said agreement and
accept said Performance Bond as stated above, copies of which are attached hereto and
incorporated herein by reference.
Puy, APL , ►mc-c..uky,-,
2011-0858
PL2073
IMPROVEMENTS AGREEMENT - MARCUM MIDSTREAM 1995-2 BUSINESS TRUST, DBA
CONQUEST OIL (C-7)
PAGE 2
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Improvements Agreement According to Policy Regarding
Collateral for Improvements between the County of Weld, State of Colorado, by and through the
Board of County Commissioners of Weld County, and Marcum Midstream 1995-2 Business
Trust, dba Conquest Oil (C-7), be, and hereby is, approved.
BE IT FURTHER RESOLVED that Performance Bond #LPM9032136 from Fidelity and
Deposit Company of Maryland, 1400 American Lane, Schaumburg, Illinois 60196, in the amount
of $65,000.00, be and hereby is, accepted.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 30th day of March, A.D., 2011.
BOARD OF COUNTY COMMISSIONERS
ATTES
Weld County Cler
BY:
Deputy Clerk to the
Date of signature: ///7-
WEJ.D COUNTY, COLQRADO
arbara Kirkmeygr, hair
Sean,P.��i, Pro -Temp
/Jr
William F. C atcia
EXCUSED
id E. Lon
g
ouglassRademach
2011-0858
PL2073
MEMORANDUM
,
TO: Clerk to the Board
DATE: 3/24/2011
FROM: Richard Hastings, Public Works Deptirtirie$t
28 A 8: 29
SUBJECT: BOCC Agenda Item - Approve Improvements
Agreement and Accept Collateral For:
Marcum Midstream 1995-2 Business Trust,
DBA Conquest Oil (C-7) — (USR-1747)
Request for Approval of Improvements Agreement:
The Department of Public Works and the Department of Planning Services received a request
from the applicant, Dale Butcher/Conquest Oil CO., requesting that the Board of County
Commissioners consider approving the Improvements Agreement for the Oil and Gas Support
Facility (USR-1747), located at WCR 74 and State Highway 392.
Weld County Public Works Department reviewed the above -mentioned signed original document
and observed the following:
• All Public Works related items, of the "Improvements Agreement According To Policy
Regarding Collateral For Improvements", are found to be acceptable.
Request for Acceptance of Collateral:
The Department of Public Works and the Department of Planning Services received a request
from the applicant, Dale Butcher/Conquest Oil CO., requesting that the Board of County
Commissioners consider accepting collateral in the form of a Performance Bond (#LPM9032136)
in the amount of $65,000.00, for the above -mentioned Improvements Agreement.
Recommendation:
The Department's of Public Works and Planning Services are recommending approval of the
Improvements Agreement According To Policy Regarding Collateral For Improvements and the
acceptance of collateral, in the amount of $65,000.00 for Marcum Midstream 1995-2 Business
Trust, DBA Conquest Oil (C-7) — (USR-1747).
2011-0858
pc: Dave Bauer, Public Works
Kim Ogle, Planning Services
MA\PLANNING - DEVELOPMENT REVIEW\USR-Use by Special Review \USR-1747 Conquest C-7 Site\Improvements Agreement\Approve IA
& Accept Collateral (tJSR-1747) - Marcum Midstream 1995-2 (Conquest Oil) C-7- MEMO.docx
March 22, 2011
Weld County Commissioners
915 10th St.
P.O. Box 758
Greeley, CO 80632
RE: USR #1747
Dear Commissioners,
,tt
With regard to the referenced USR, enclosed are four (4) original copies of Bond #LPM9032136
in the amount of $65,000 in connection with the Improvements Agreement dated February 16.
2011, covering our C7 facility in Weld County.
Please let me know if you need anything else in this regard. Thanks!
Sincerely,
CONQUEST 9 t CO.
Dale S. Butcher
Vice President
enclosures
8207 W. 20th Street • Suite B • Greeley, CO 80634 • 970-356-5560
$j
IMPROVEMENTS AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
MARCUM MIDSTREAM 1995-2 BUSINESS TRUST, DBA CONQUEST OIL (C-7)
USR-1747
THIS AGREEMENT, made and entered into this day of FELPL014 c' if ,
by and between the County of Weld, State of Colorado, acting through its Board of County
Commissioners, hereinafter called "County," and Marcum Midstream, hereinafter called
"Property Owner."
WITNESSETH:
WHEREAS, Property Owner is the owner of, the following described property in the
County of Weld, Colorado:
Lot A of Recorded Exemption #5008, being part of
the EI/2SE1/4 of Section 34, Township 7 North,
Range 63 West of the 6th P.M., Weld County,
Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Owner has acquired land use permits from County for an Oil and Gas
Support Facility (Class II - Oilfield Waste Disposal Facility- saltwater injection facility and a
water recycling facility) on approximately 11 acres on the above described real property, and the
County is currently in the process of considering a Use -by -Special Review for the Property
(USR-1747), and
WHEREAS, the Property Owner acknowledges that the issuance of USR-1747 is conditional
upon Property Owner's performance of the on -site and off -site improvements which are
described in this Agreement and depicted in a set of plans provided by Property Owner
(hereinafter referred to as "Plans"), a copy of which is attached to this Agreement and made a
part hereof, and
WHEREAS, Property Owner acknowledges that it may not engage in any activity described in
USR-1747 and/or any activity related to the businesses described above until said improvements
have been completed, and
WHEREAS, the parties agree that Property Owner shall not be required to commence work on
the on -site or off -site improvements, nor to provide collateral for said improvements as required
by this Agreement until Property Owner submits and receives approval of an application for a
grading permit or for a Right -Of -Way permit for construction of accesses and work within the
County Right -Of -Way.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and
covenants contained herein, the parties hereto promise, covenant and agree as follows:
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A. Required Off -Site Improvements
1.0 Weld County Road 74: The Property Owner shall be responsible for the
construction of certain on -site and off -site safety improvements which shall include: construction
of adequate turning radii sixty (60) feet at the site entrance and exit, drainage and signage
installations at the main entrance and exit onto WCR 74, as indicated on the accepted
Construction Plans. The applicant, or its successor, shall construct a right westbound acceleration
lane on County Road 74, when traffic volumes meet the triggers of 50 vehicles per hour (vph)
turning right out of the facility, during the peak hour. The applicant, or its successor, shall
construct a left eastbound deceleration lane on County Road 74 when traffic volumes meet
triggers of 10 vph turning left into the facility, during the peak hour. Granting of any new point
of access may generate additional obligations with the County for Off -Site Improvements and
the need to post additional "Road Maintenance Collateral".
2.0 Road Improvements Responsibilities: Property Owner is solely responsible for all
designated improvements, as specified above in Section A.1.0, on WCR 74, and for any
construction improvements mandated by the Colorado Department of Transportation (hereinafter
"CDOr') and/or the County, and for all expenses associated therewith. These responsibilities
include, but are not limited to the following: design, survey, utility locates, present and future
right-of-way clearances and permits, coordination with oil and gas operators and facilities,
affected railroad facilities and affected irrigation facilities, traffic control, and project safety
during construction. Property Owner shall obey all applicable regulations issued by the
Occupational Safety and Health Administration (hereinafter "OSHA"), CDOT, Colorado
Department of Public Health and Environment, (hereinafter "CDPHE") and other regulatory
agencies.
3.0 Engineering Design and Construction Plans: All engineering designs and
Construction Plans provided by Property Owner shall include, at a minimum, ingress/egress
entrance intersection layouts, existing and proposed grading, drainage designs, storm drainage
pipe sizings and inverts, a cross section of the base/asphalt, approach roads, and adequate turning
radii, and pavement markings. In addition a geotechnical asphalt pavement design to
accommodate heavy truck traffic, prepared by a Professional Engineer licensed to practice in
Colorado, is required for WCR 74. These Plans, when reviewed and accepted by the Weld
County Engineer, shall be a part of the Plans, which are a part of this Agreement. All plans
showing work within the State Highway Right -Of -Way shall be reviewed and accepted by the
Colorado Department of Transportation, prior to the start of construction. For all construction in
the County right-of-way, prior to the issuance of any access permit or right-of-way permit, a
construction schedule giving times and locations of all proposed improvements shall be provided
to Public Works for review and acceptance.
4.0 Construction Standards: All construction and materials controls for a project and
any designated improvements shall conform to the requirements in effect at the time of the
completion of the improvements set forth in the "Standard Specifications for Road and Bridge
Construction" provided by CDOT.
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5.0 Traffic Control: Prior to construction in the County and/or State right-of-way and
as a condition of issuance of any access permit or right-of-way permit, the applicant shall submit
a traffic control plan for County review. During construction, signage shall be posted in
accordance with the then current version of the "Manual of Uniform Traffic Control Devices".
6.0 Off -Site Dust Control/Abatement and/or Paving (If Applicable): County will
determine the proportionate share of dust control and/or paving costs to be paid by Property
Owner. The proportional share is based upon the ESAL calculation method to determine the
impacts of traffic volumes created by the Property Owner (or their contractors, clients, tenants,
or customers). The amount and extent of dust control and paving measures will be determined by
site -specific conditions at the time, as determined exclusively by County personnel. In order to
accurately determine percentage of Property Owner haul truck traffic, the County reserves the
right to install traffic counters on the driveway(s) of their facility. The percentage of haul truck
traffic utilizing County roads in the vicinity of the site attributable to Property Owner (or their
contractors, clients, tenants, or customers) activities will be determined by traffic counts
conducted by the County on the primary and requested alternate or revised haul routes. The
County will have sole responsibility for determination of the percentage of truck traffic on all
affected roads.
7.0 Future Improvements: Future improvements to the haul route(s) may be required
by County for reasons related to: changes in site activity or truck circulation patterns and
numbers, roadway classification changes, and newly permitted facilities affecting the haul route
traffic usage. Property Owner shall address all Colorado Department of Transportation (CDOT)
access issues associated with afore -mentioned haul route. Future CDOT or County mandated
measures may include improvements to the intersections of SH 392 and WCR 74, or any other
intersections or roadways then utilized by Property Owner as a result of the establishment of a
new haul route. Property Owner shall pay a proportionate cost share using then current data on
the haul route in the implementation of the above -mentioned improvements. If, at some future
date, the CDOT permit requires auxiliary turn lanes to be constructed on State Highway 392, the
applicant, or its successor, shall pay to CDOT the applicant's proportional share of the auxiliary
turn lanes improvement costs, if required by CDOT. County personnel alone shall make all
determinations regarding the gathering of and use of traffic data when making decisions
regarding cost sharing.
8.0 Timing of Improvements: 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 or Right -Of -Way access permit
resulting from the commencement of activities on the property(s). At that time, Property Owner
agrees that the required collateral will be posted and all on -site and offsite improvements shall be
completed within the parameters established in Section E.-7.2 and Exhibit B, herein.
9.0 Acceptance of Off -Site Improvements: Upon completion of the off -site
improvements, Marcum Midstream shall contact a representative of the Weld County
Department of Public Works and request an inspection of the off -site improvements described in
Paragraph A.1.0-2.0 above. The County's representatives may then initiate the acceptance
process set forth in Paragraphs E.6.0, Sections 6.1-6.3
I 11111111111111111111111 III 111(1 1111111 III IIIII III! III!
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9.1 All references in this Agreement to "Acceptance of Improvements" shall
refer to the County confirming completion of said improvement(s)
according to the accepted Construction Plans. By accepting any
improvement, the County does not thereby accept said improvement for
purposes of future maintenance, nor does the County accept any present or
future responsibilities or obligations relative to these improvements.
B. Haul Routes:
1.0 Established Haul Routes:
1.1 Exiting or entering the site: Haul trucks shall enter or exit the site at the
approved access onto WCR 74. No haul route truck traffic is allowed on
WCR 69.
1.2 No haul truck may exceed CDOT required specifications for pounds per
axe\.
1.3 In unusual or rare occasions, if particular projects mandate deviation from
the above -mentioned haul route for a limited period of time (which is
defined in the Agreement as a period of not more than thirty days), which
shall be established by County at the time that the deviation is allowed.
Upon receipt of a written request from the Property Owner, if County
approves such deviation, trucks 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 Paragraph 4.0 of this Section
B. In the event that haul truck traffic, in excess of 15% of the daily facility
truck trips, utilizes alternate haul routes, the provisions of Paragraph 4.0 of
this Section B shall be triggered.
2.0 Haul Route Signage: Property Owner shall install haul route signs 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.
3.0 No Deviation from Permitted Haul Routes: 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.
4.0 Effect of Future Changes to Haul Routes: In the event that County is requested in
writing by Property Owner or site operator to approve the use of an additional access, new haul
route, or an alternative haul route as a result of a change in Property Owner's site activities
and/or truck circulation patterns, and if the alternative or additional access or haul route utilized
any unpaved portion of County roads, and if County determines that dust control or paving is
required on the unpaved portion of said haul route roads, Property Owner agrees that dust control
or paving measures to protect the public health, safety, and welfare shall be instituted. County
will determine the proportionate share of dust control and/or paving costs to be paid by Property
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Owner based upon then current truck trip counts that identify traffic loading due to Property
Owner -sourced traffic. 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.
C. Road Maintenance Requirements:
1.0 Obligation to Maintain Current and Future Haul Routes: Property Owner agrees
to excavate, repair, or patch any damage on current or future haul route roads, which in the sole
opinion of County has been created by heavy truck hauling from the Property. Should Property
Owner's site activities and/or should Property Owner's truck 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. The type and method of repair will be determined by the County Engineer or his
representative, and shall require a written amendment to this Agreement executed by County and
Property Owner. All repairs shall commence within thirty (30) days of receipt of Weld County's
written notice.
2.0 Annual Road Inspection: County will conduct a road inspection annually with the
cooperation of Property Owner. and all other Property Owners and/or Lessees who are required
by County to participate in road 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 improvement/maintenance work is to be performed during that construction
season.
3.0 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 restoration
based on the number of then current truck trips entering or exiting Property Owner's site onto the
haul route.
4.0 Sharing of Road Maintenance Responsibilities with Other Property Owners: It is
anticipated that Property Owner and other Property Owners and/or Lessees subject to agreements
similar to this Agreement will perform the required road maintenance work and will share in the
equipment, labor, and materials required. Any such sharing arrangement between Property
Owner and other Property Owners and/or Lessees shall be conducted pursuant to separate
agreements between the Property Owner and other Property Owners and/or Lessees. County
shall approve the Agreements only to determine whether the required
improvements/maintenance projects have been adequately addressed. County alone shall
determine the sufficiency of all road improvement/maintenance projects when completed.
5.0 Violation of Terms of Agreement: If Property Owner does not perform as
outlined in this Agreement and Exhibits A and B, such non-performance will constitute a
violation of Property Owner's land use permits granted by County, and County will take
whatever remedial measures it deems necessary against Property Owner. In addition to any
other remedy available to the County in law or equity, a failure to comply with this Agreement
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1 111111 11111 111111 111111 III 11111 1111111 III 11111 IIII III
shall be considered grounds for setting a probable cause hearing according to the procedures
described in Section 2-4-40 of Weld County Code. Revocation of USR-1747 as it now exists
or may, from time to time, be amended in accordance with the procedures of the Weld County
Code may result.
D. On -Site Improvements:
1.0 Landscaping Requirements: Property Owner shall landscape and/or maintain the
landscaping and re -seeding of the property where applicable as shown on the accepted
Construction Plans and USR-1747 plat map. Specifically, Property Owner shall at its own
expense, plant, install and maintain all trees, grass and shrubs and other landscaping and
reseeding where applicable as shown on the accepted Construction Plans and USR-1747 plat
map. Additionally, the Property Owner shall install and maintain fencing to screen the property
where applicable as indicated on the accepted Construction Plans and USR-1747 plat map. In the
event any of these improvements may include work extending into the County Right -of -Way in
which case a Right -Of -Way or access permit is required.
2.0 On -Site Grading, Drainage Facilities and Paving: Property Owner shall, at its
sole expense, grade and/or pave, if applicable, specified roadway portions,
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, as further described in the accepted Construction
Plans and USR-1747 plat map. The main entrance improvements will include; a
paved vehicle tracking pad, extending from WCR 74 through the traffic flow
lanes (entrance and exit) of the unloading area, or supply a tracking pad from the
unloading area with two cattle guards placed back-to-back across the entire width
on the exit lane, including the paved access entrance to ensure a complete
revolution of the truck tires and to minimize the tracking of mud and debris onto
WCR 74. No paving of the entrance lane will be required if the second option
above is utilized. Any 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 onsite improvements. Refer to Section A.,
paragraph 1.0 of this agreement for specific paving requirements extending into
the facility site from WCR 74. 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 County Right -Of -Way in which
case a Right -Of -Way or access permit is required.
3.0 Temporary Improvements: The following improvements are needed to mitigate
temporary offloading activities (defined as acceptance of oil field waste water for
storage and/or injection for a period of 6 months starting on the date of execution
of this Agreement) as requested by the Property Owner:
3.1 Completion of construction of the onsite stormwater detention
pond as shown on the approved construction plans and,
3.2 Completion of the construction of the temporary spill containment
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berm around the temporary storage tanks with capacity for capture of 150 percent
(one hundred and fifty percent) of the volume of the largest tank plus freeboard
capacity to also capture a volume of stormwater equal to a 3 -inch rain storm over
the bermed area.
3.3 The Applicant shall prevent the tracking of mud or other debris
from their site onto the County roadways. In the event mud or other debris is
tracked onto the roadway, the Applicant shall provide street sweeper or other
appropriate removal of the nuisance.
4.0 Timing of Permanent Improvements: Property Owner shall not be required to
initiate the landscaping requirements until the occurrence of the triggering event for all
improvements, namely the approval of the grading permit by the County or an amendment to the
existing USR. No grading permit will be released until collateral is posted for the associated
improvements and the Construction Plans have been submitted to and accepted by the
Department of Public Works. Access and/or Right -Of -Way permits might also be required prior
to approval of the grading permit. Grading shall not commence until Construction Plans are
accepted. Any alterations to the accepted Construction Plans must be accepted in writing by the
County Planning and Public Works Departments. At that time, and unless otherwise amended,
Property Owner agrees that all landscaping and other on -site improvements, as indicated in
Section D. 2.0 above shall be completed within the parameters established in Section E. 7.2 and
Exhibit B.
4.1 Timing of Temporary Improvements: Property Owner shall complete
construction of the on -site improvements described in Section D.3 of this Agreement prior to
commencement of the temporary offloading activities
5.0 Acceptance of On -Site Improvements: Upon completion of the on -site
improvements, Property Owner shall contact the County Department of Planning Services and
the County Department of Public Works and request an inspection of the on -site improvements
described in Paragraph D.1.0 and D.2.0 above. The County's representatives may then initiate
the process for "Acceptance of Improvements" set forth in Paragraph E. 6.0, Sections 6.1-6.3
E. 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. Engineering
services performed by an engineer registered in the State of Colorado are only required following
notification by the County.
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.
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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.
2.0 Rights -of -way and Easements: Before commencing the construction of any
improvements herein agreed upon for public rights -of -way or easements, Property Owner shall
acquire, at the sole expense of Property Owner, good and sufficient rights -of -way and easements
on all lands and facilities traversed by the proposed improvements. All such rights -of -way and
easements used for the construction of roads to be accepted by the County shall be conveyed to
the County and the documents of conveyance shall be furnished to the County for recording.
3.0 Construction: Property Owner shall furnish and install, at its own expense, the
improvements identified on the accepted Construction Plans and USR-1747 Plat Map, be solely
responsible for the costs listed on Exhibit "A", and described in parts A and D of this agreement,
which are attached hereto and/or incorporated herein by reference, with the improvements
interior to the Property being completed by the dates set forth on Exhibit "B" (On -Site), and
improvements to public rights -of -way or easements being completed also in accordance with the
schedule set forth in Exhibit "B" (Off -Site). The Board of County Commissioners, at its option,
may grant an extension of the time of completion set forth in Exhibit B stated herein 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.
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
accepted plans and specifications, to include but not limited to damages to
property adjacent to the construction plan area shall be repaired, removed
or replaced to the satisfaction of the County at the expense of Property
Owner.
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4.0 Release of Liability: Prior to the acceptance by the County and expiration of the
applicable warranty period, 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 all off -site 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. Following the expiration of the warranty period, Property Owner shall be released
from the foregoing requirement 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 applicable laws and
regulations of the State of Colorado governing occupational safety and health.
5.0 Warranty of On -Site and/or Off -Site Improvements: Property Owner shall
warranty all improvements to public rights -of -way (if any), and all privately created and
maintained roads or rights -of -way, or easements, and all on -site improvements for a period of
two (2) years. The warranty period shall begin only after the County's execution of a written
acceptance of the improvement(s).
6.0 Acceptance of On -Site and/or Off -Site Improvements by the County: Upon
compliance with the following procedures by the Property Owner, the improvements shall be
deemed accepted by the County.
6.1 If requested by the Property Owner and approved by the County, portions
of the improvements may be placed in service when completed according
to the schedule shown on Exhibit "B," but such use and operation shall
not, alone, constitute an acceptance of said portions of the improvements.
6.2 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 Applicant.
6.3a Upon completion of the construction of the required off -site
improvements, and the filing of a Statement of Substantial Compliance by
Property Owner's engineer, Property Owner may, as set forth in Paragraph
A.9.0, request in writing that the County inspect the improvements and
recommend to the Board of County Commissioners that the improvements
be accepted and further that the two-year warranty period begin. Upon
completion of the two-year warranty period, the County Engineer shall,
upon request by the applicant, inspect the subject improvements, and
notify Property Owner of any deficiencies. If any deficiencies are
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discovered, the Property Owner shall correct the deficiencies. The County
Engineer shall reinspect the improvements after notification from Property
Owner that said deficiencies have been corrected. If the County Engineer
finds that the improvements are constructed according to County
standards, he or she shall recommend full acceptance. Upon a receipt of a
positive unqualified written recommendation from the County Engineer
for acceptance of improvements within the USR, the Board of County
Commissioners shall fully accept said improvements.
6.3b Upon completion of the construction of the required on -site
improvements, and the filing of a Statement of Substantial Compliance,
when necessary, by Property Owner's engineer, Property Owner may, as
set forth in Paragraph D.4.0, request in writing that the County inspect the
improvements and recommend to the Board of County Commissioners
that the improvements be accepted and further that the two-year warranty
period begin. Upon completion of the two-year warranty period, the
County Engineer and/or the Weld County Department of Planning
Services shall, upon request of Property Owner, inspect the subject
improvements, and notify Property Owner of any deficiencies. If any
deficiencies are discovered, Property Owner shall correct the deficiencies.
The County Engineer and /or the Department of Planning Services shall
reinspect the improvements after notification from Property Owner that
said deficiencies have been corrected. If the County Engineer and/or
Department of Planning Services find that the improvements are
constructed according to County standards, he or she shall recommend full
acceptance. Upon a receipt of a positive unqualified written
recommendation from the County Engineer and/or the Department of
Planning Services for acceptance of improvements within the USR, the
Board of County Commissioners shall fully accept said improvements.
7.0 General Requirements for Collateral:
7.1 County requires Property Owner to provide collateral to guaranty all of
Property Owner's obligations under this Agreement: (1) Project Collateral
for completion of all improvement described in this Agreement shall be
provided separately for on -site improvements and off -site improvements;
(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.
7.2 Project Collateral submitted to Weld County to guarantee completion of
the improvements identified on the accepted Construction Plans and USR-
1747 Plat Map and further enumerated in the costs listed in Exhibit "A",
must be equivalent to One -Hundred percent (100%) of the value of the
improvements as shown in this Agreement. Collateral for On -Site
improvements that extend partially off -site as mentioned in Section A.1.0
(if any) or D.2.0 of this Agreement that include only improvements
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involving turning radii and approaches can be included as part of the On -
Site collateral amount, if clearly delineated on accepted Construction
Plans and differentiated as "Entrance Improvements" on Exhibit "A" On -
Site Improvements of this Agreement. Such collateral shall be provided to
the County on the dates set forth herein and shall be held in total by
County as provided in Paragraph E. 7.3 below until all improvements have
been completed. This collateral must be submitted to County upon the
submission of the Property Owner's application of a grading and/or right-
of-way permit.
7.3 Warranty Collateral for all on -site and 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).
7.4 In the event Property Owner fails to adequately complete and/or repair
improvements associated with this Improvements Agreement, County will
access, in its sole discretion, Project or Warranty Collateral to the extent
necessary to complete said improvements or repairs in order to preserve
public interest.
7.5 Road Maintenance Collateral shall be submitted to County upon the
release of the warranty collateral by the Board of County Commissioners.
Road Maintenance Collateral is held for use on roads associated with the
designated haul route. The amount of the collateral required for road
maintenance shall be established by the Weld County Department of
Public Works based upon its determination of the anticipated expenses,
and its determination of the amount shall be final. Road maintenance
collateral shall be held by County as long as this Agreement is in effect
and returned to the Property Owner upon vacation of associated land use
agreement or permit. The Road Maintenance Collateral will only be
accessed by the County, if upon notification to Property Owner of required
roadway repairs; Property Owner fails to perform said repairs. If any of
this collateral shall be collected by County, Property Owner shall replace
the amount, plus interest, within six (6) months.
7.6 Road Maintenance Collateral shall be adjusted annually, during the month
of January, for inflation. The first adjustment shall be made no less than
twelve months after, and in no event later than twenty-four months from
the execution of this Agreement. The adjustment shall be equal to the
inflation rate based on the "Colorado Construction Cost Index Report" as
published by the Colorado Department of Transportation.
7.7 Acceptable Project collateral shall be submitted at the time Property
Owner submits an application for the grading permit or Right -Of -Way
access permit. No grading or building permits shall be issued for any site
related activities, on the property and no Site Preparation shall commence
until cost estimates for the improvements are updated and collateral is
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provided in the amount of One -Hundred percent (100%) of the value of
the improvements to be completed, and the development plans are revised
to comply with all current County standards, policies and regulations. The
improvements shall be completed within the time schedule set forth in
"Exhibit B", which is attached hereto and made a part of this Agreement.
If improvements are not completed within these time frames, the County,
at its discretion, may make demand on all or a portion of the site collateral
and take steps to see that the improvements are made. "Site Preparation"
shall mean earthwork grading or performance of work, or construction or
installation of improvements related to Property Owner's planned
operations pursuant to USR-1747 that require a grading or building permit
from the County pursuant to the Weld County Code.
7.8 Collateral may be in the form of an irrevocable letter of credit (LOC) in an
amount equivalent to one -hundred percent (100%) of the total value of the
improvements set forth in the Improvements Agreement and the Plat; the
LOC shall be subject to the requirements of Weld County Code Section 2-
3-30 B. The Property Owner shall utilize only a County approved form
when obtaining a LOC: (IRREVOCABLE STANDBY LETTER OF
CREDIT FOR BOARD OF COUNTY COMMISSIONERS OF WELD
COUNTY, COLORADO). A copy of said form shall be provided to
Applicant upon request.
7.9 Collateral may be in the form of a surety bond given by a corporate surety
authorized to do business in the State of Colorado in an amount equivalent
to one hundred percent (100%) of the value of the improvements set forth
in the Improvements Agreement and the Plat. The surety bond shall
conform to and be subject to the requirements of Weld County Code
Section 2-3-30 B.2. The Property Owner shall utilize only a County
approved form when obtaining a surety bond: (PERFORMANCE BOND
FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY,
COLORADO). A copy of said form shall be provided to Applicant upon
request.
7.10 Collateral may be in the form of a cash deposit made with the Board in an
amount equivalent to One -Hundred Percent (100%) of the value of the
improvements set forth in the Improvements Agreement. In the event the
applicant is required to warranty the improvements, the applicant shall
replace the original deposit with a deposit in the amount of fifteen percent
(15%) of the original amount and those funds shall remain available to the
County until released by the County at the end of the warranty period.
7.11 The Board of County Commissioners reserves the right to reject collateral
which is deemed inappropriate or insufficient, which may be either as
collateral in the form of a letter of credit offered by a banking institution
which does not have at least a "three star" rating given by Bauer Financial,
or as collateral in the form of a performance bond offered by an insurance
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company which does not have at least a B+ rating given by A.M. Best.
The Board further reserves the right to require Property Owner to obtain
replacement collateral if the rating of the financial institution providing
said collateral drops below the levels stated above. Replacement collateral
shall be submitted by Property Owner within sixty (60) days of the
Board's notice to Property Owner that the rating has fallen and that the
collateral must be replaced. Property Owner may not terminate existing
collateral until replacement of collateral has been secured.
8.0 Request for Release of Collateral: Collateral shall be released in accordance with
the provisions of Weld County Code Section 2-3-30.C. Prior to release of collateral for the
entire project or for a portion of the project by Weld County, the Property Owner must present a
Statement of Substantial Compliance from an Engineer registered in the State of Colorado.
Engineering Statements of Substantial Compliance are only required following notification by
the County. The Statement of Substantial Compliance shall state that the project or a portion of
the project has been completed in substantial compliance with accepted plans and specifications
documenting the following:
8.1 The Property Owner's Engineer or his representative has made regular
on -site inspections during the course of construction and the Construction
Plans utilized are the same as those accepted by Weld County.
8.2 For the improvements to public rights -of -way or easements, test results
must be submitted for all phases of this project as per Colorado
Department of Transportation (COOT) Schedule for minimum materials
sampling, testing and inspections found in CDOT Materials Manual.
8.3 "As -built" plans shall be submitted at the time the letter requesting release
of collateral is submitted. The Property Owner's Engineer shall certify
that the project "as -built" is in substantial compliance with the plans and
specifications as accepted, or that any material deviations have received
prior written acceptance from the County Engineer.
8.4 The Statements of Substantial Compliance must be accompanied, if
applicable, by a letter of acceptance of maintenance and responsibility by
the appropriate utility company, special district or town for any utilities.
8.5 A letter must be submitted from the appropriate Fire Authority, if
applicable, indicating the fire hydrants are in place in accordance with the
approved plans. The letter shall indicate if the fire hydrants are operational
and state the results of fire flow tests.
8.6 The requirements in the paragraphs 8.0 through 8.5 shall be noted in the
final Construction Plans.
8.7 Following the submittal of the Statement of Substantial Compliance and
written recommendation of acceptance of the improvements by the Weld
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County Department of Planning Services and the Weld County
Department of Public Works, the Property Owner (if Property Owner has
supplied any or all of the collateral) may request release of the collateral
for the project by the Board. This action will be taken at a regularly
scheduled public meeting of the Board.
8.8 For all off -site and on -site improvements (including improvements to
public rights -of -way or easements), the written request for release of
"Project Collateral" shall be accompanied by "Warranty Collateral" in the
amount of fifteen percent (15%) of the value of the improvements as
shown in this Agreement. However, collateral for improvements fully
accepted for maintenance by a responsible governmental entity, special
district or utility company will be fully refunded to Property Owner.
8.9 Following the written request for release of the "Warranty Collateral", the
Weld County Department of Planning Services and the Weld County
Department of Public Works County shall inspect the on -site and/or off -
site improvements. If the improvements need mitigation or further repairs
are required, said work must be completed prior to the conclusion of the
Warranty period. The "Warranty Collateral" shall be released to the
Property Owner following the expiration of the warranty period upon final
written acceptance by the Board of County Commissioners.
8.10 "Road Maintenance Collateral" (If Applicable) for roads associated with
the designated haul route shall be maintained as long as the USR is active.
It shall be adjusted annually by the inflation rate based on the "Colorado
Construction Cost Index Report" as published by the Colorado
Department of Transportation. Road Maintenance Collateral shall be
adjusted annually, during the month of January, for inflation. The First
adjustment shall be made no less than twelve months after, and in no event
later than twenty-four months from the execution of this Agreement.
9.0 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. Consent to a delegation or an assignment will not be unreasonably withheld by County.
In the event of sale of the Property, County may agree to release Property Owner in whole or in
part from obligations under this Agreement. 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.
10.0 County Engineer: 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.
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11.0 Violation of Terms of Agreement: If in County's opinion, Property Owner has
violated any of the terms of this Agreement, County shall notify Property Owner of its belief that
the Agreement has been violated and shall state with specificity the facts and circumstances
which County believes constitute the violation. Property Owner shall have fifteen (15) days
within which to either cure the violation or demonstrate compliance. If, after fifteen (15) days
have elapsed, County believes in good faith that there has been a violation of the terms of this
Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of
this Agreement. Violations of the terms of this Agreement include violations of the agreements
contemplated by Paragraphs C.4.0 & C.5.0 of this Agreement, and a failure to enter into such
Agreements in a timely manner.
F. Termination of Agreement:
1.0 Termination Event: This Agreement shall terminate upon the earliest of the
following events:
1.1 Cessation of all Permit Related Activities: Termination of this Agreement
shall occur upon Operator's complete cessation of all activities permitted under USR-
1747 or any amendments thereto. 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. Operator shall provide written notice to Property Owner and County of
said cessation of activity, which County shall then verify. If written notice is not provided
to County, Termination of this Agreement shall not occur until County has determined
that the Use by Special Review is inactive, which shall be three (3) years following
County's observance of the cessation of activities, as provided in Sec. 23-2-200.E of the
Weld County Code.
1.2 Execution of Replacement "Improvements Agreement According to
Policy Regarding Collateral for Improvements — USR-1747 by New Property Owner:
This Agreement shall terminate following County's execution of a new Improvements
Agreement According to Policy Regarding Collateral for Improvements — USR-1747
with a new Property Owner who has purchased the Property, and intends to make use of
the rights and privileges available to it through the then existing USR.
1.3 Execution of Replacement "Improvements Agreement According to
Policy Regarding Collateral for Improvements — USR-1747 by New Operator: This
Agreement shall terminate following County's execution of a new Improvements
Agreement According to Policy Regarding Collateral for Improvements — USR-1747
with a new operator who has assumed the operation of the business on the Property
which business activities are permitted by the then existing USR.
2.0 Termination Procedures:
2.1 Termination Procedures Following Cessation of Permit Related Activities:
Following the events outlined in paragraph 1.1 above, County shall conduct its annual
road inspection. Said road inspection shall be conducted on or before May 31 following
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the announcement or determination of the cessation of permit related activities on the
Property. The results of the inspection shall be delivered in writing to the Property Owner
and Operator. If the County determines that pursuant to the terms of this Agreement, the
Operator must complete any of the improvements and/or road maintenance obligations
outlined herein, said obligations must be completed within a reasonable period of time
thereafter, but in no event later than six (6) months following the determination that
permit related activities have ceased. Collateral shall not be released by County until such
time as county determines that all of the improvements have been completed.
2.2 Termination Procedures Pursuant to Transfer of Ownership of the
Property or Transfer of Operations: If the Property Owner or Operator desires to assign
its rights and obligations under this Agreement to a successor Property Owner or
Operator, the Property Owner or Operator shall, prior to the transfer, provide County with
a written Notice to Transfer, stating the date of transfer, and identifying the party to
whom the transfer shall be made. Following receipt of the Notice to Transfer, County
shall inspect the improvements required under the terms of this Agreement to determine
whether the improvements have been completed. If the improvements have not been
completed, the Property Owner and/or Operator shall either complete the improvements
or post collateral equal to the cost of the completion of the improvements, if such
collateral is not in place. If collateral is available at the time, County shall hold a hearing
to determine whether the collateral should be called upon to pay County or a contractor
of the County to complete the improvements. County shall also inspect the road(s) which
are covered by this Agreement to assess the current condition of the road(s) and
determine whether Operator and/or Property Owner would be required to perform road
maintenance within the following twelve months had the Agreement not been assigned. If
road maintenance is, in the opinion of County, required, Property Owner and/or Operator
shall be required to either perform the road maintenance or to post collateral equal to the
cost of said maintenance. County shall not execute a new Improvements Agreement
According to Policy Regarding Collateral for Improvements — USR-1747 with a
successor Property Owner and/or Operator prior to the performance of the road
maintenance or the posting of collateral for said maintenance, unless the new Property
Owner and/or Operator posts collateral for the required maintenance.
3.0 Consequence of Termination by Cessation of Permit Related Activities:
Following County's confirmation that Property Owner and/or Operator has/have ceased all
permit related activities and has/have completed previously uncompleted Improvements and or
completed any required road maintenance, County shall release Property Owner and/or Operator
from all further obligations under this Agreement. No Further permit related activities shall be
permitted unless and until approved by County following execution of a new Improvements
Agreement According to Policy Regarding Collateral for Improvements — USR-1747 with a
Property Owner and Operator.
4.0 Consequence of Termination by Execution of Replacement Improvements
Agreement: Following County's execution of an Improvements Agreement According to
Policy Regarding Collateral for Improvements — USR-1747 with a successor Property Owner
and/or Operator, the predecessor Property Owner and/or Operator shall have no further rights
and/or obligations under this Agreement or in USR-1747.
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5.0 Conseauence of Termination Pursuant to Paragraph E.11.0: In the event that
activities related to USR-1747 cease as a result of the revocation of the permit as described in
Paragraph E.11.0 of this Agreement, neither Property Owner nor Operator will be released from
any of the obligations imposed by the terms of this Agreement only after Property Owner's
successful completion of all improvements required under this Agreement or after County
accesses the collateral to the extent necessary to complete improvements County, in its sole
discretion, deems necessary to preserve public interests.
G. 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.
H. Enforcement: If, in the County's opinion, Property Owner has violated any of the terms
of this Agreement, County shall notify property Owner of its belief that the Agreement has been
violated and shall state with specificity the facts and circumstances which the County believes
constitute violation. Property Owner shall have thirty (30) days within which to either cure the
violation or demonstrate compliance. If, after thirty (30) days have elapsed, County believes in
good faith that a violation of the terms and conditions of this Agreement still exists (despite
cure), County may enforce by any legal means, including, but not limited to, legal action for
equitable or monetary relief filed in the Weld District Court, execution upon submitted collateral
(if applicable), and/or administrative action of the County to suspend or revoke the underlying
land use permit or approval pursuant to the procedural provisions of Section 2-4-40 of the Weld
County Code. Violations of the terms and conditions of this Agreement include, but are not
limited to, violations of the agreements Property Owner must enter into as required by this
Agreement, and/or failure to enter into such agreements in a timely manner.
I. 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.
J. Authority to Sign: Each person signing this Agreement represents and warrants that he or
she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party
represents and warrants to the other that the execution and delivery of the Agreement and the
performance of such party's obligations hereunder have been duly authorized and that the
Agreement is a valid and legal agreement binding on such party and enforceable in accordance
with its terms. If requested by the County, Property Owner shall provide the County with proof
of Property Owner's authority to enter into this Agreement within five (5) days of receiving such
request.
I 11111 11111 IIIIII 111(11 mil HI111111111111 PaB8e 17 of
3759396 03/3112011 12:19P Weld County, CO
17 of 18 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
Li
PROPERTY Y�
OWNER: tAj•,
PROPERTY
OWNER:
Subscribed and sworn to before me this ( u t day of ICJ ,� i� t1y �1 , �i l .
ATTEST:
Weld County Clerk to the Board
BY:
Deputy Clerk .if the. Board
APPROVED AS TO FORM:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
arbara Kirkmeyer,jhair
County Attorney
P Weld Coen & Recotde
0111161511010115111
9603112011 12.19Steve Marano Clerk
18 of�18 IA 0.00 D 0.00
AR 3L?X311
C:\Users\Rae Chrisman1AppData\LocallMicrosoft\Windows\Temporary Internet Files \Content.lE5\KURI87V7\USR-1747_lmprovAgreemt-
MarcumMidstream-Conquest_Oil_(C-7)-Revised_Draft_(2-8- I I )[1].doc Page 18 of 18
Vic//-4')(P.5�
Bond No. LPM9032136
PERFORMANCE BOND FOR
BOARD OP COUNTY COIN IBBIONER9 OP WILD COUNTY, COLORADO
KNOW ALL PERSONS BY THESE PRESENTS, that _ Marcum Midstream
1995-2 Business Trust , 8207 W. 20th St., Suite B, Greeley, CO 80634
a (corporation, limited liability company, etc.)'�.,y,...'�„! T�vsT ,
organized under the laws of the State of 1t -La wb$ , with its principal
office located at 6207 w. 20th St., Suite B, Greeley, CO 80634
hereinafter called "Principal", and Fidelity and De)osit Company of
Maryland , of 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 Sixty Five Thousand and no/100 Dollars ($ 65,000.00 ),
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) USR-1747 , and
pursuant to the requirements of said permit, has entered into an
Improvements Agreement, dated February 16, 2011 , 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 Sixty Five Thousand and no/100
($ 65,000.00 )•
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, 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 reserved 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
10th day of March , 2011.
Principal Secretary/Witness
(SEAL)
i ness as to Surety
PO Box 2992
Address
Wichita, KS 67201
Address
Marcum Midstream 1995-2 Business
Trust ,Principal
By: t7�4
Title
Fidelity and Deposit Company of Maryland
By:
J . Forrest,Attorney-in-Fact
PO Box 2992
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.
r
Power of Attorney
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, corporations of the S aryland, by DAVID S.
HEWETT, Vice President, and GREGORY E. MURRAY, Assistant Secretary, in rity granted by Article
VI, Section 2, of the By -Laws of said Companies, which are set forth �, r�, s +'" er o *. e hereby certified to he
in full force and effect on the date hereof, does hereby nom' +�� �� tt . a + P '�+,% = , Bret S. BURTON,
Jana M. FORREST, Tim H. HEFFEL, Desire D: �` tl" ' +' t `YDER and Emily R.
TERHUNE, all of Wichita, Kansas ��t ' is t e aw : ncy-in-Fact, to make, execute, seal and
deliver, for, and on its beha s ; tQa `P s a � [ y all bonds and undertakings, and the execution of
such bonds or undo- R ► •u . arc t qtr, t. s all be as binding upon said Companies, as fully and amply, to
all intents and purp s.. tl e executed and acknowledged by the regularly elected officers of the
Company at its offic re ., in their own proper persons. This power of attorney revokes that issued on behalf of
Scott T. POST, Bret ON, Jana M. FORREST, Tim H. HEFFEL, Erica M. PLUMMER, Desiree E.
WESTMORELAND, Kathleen A. SNYDER, dated June 19, 2008.
The said Assistant Secretary does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article VI,
Section 2, of the By -Laws of said Companies, and is now in force.
IN WITNESS WHEREOF, the said Vice -President and Assistant Secretary have hereunto subscribed their names and
affixed the Corporate Seals of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL
AMERICAN CASUALTY AND SURETY COMPANY, this 9th day of March, A.D. 2009.
ATTEST:
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
By:
Gregory E. Murray Assistant Secretary David S. Hewett
Vice President
State of Maryland l sc:•
City of Baltimore J
On this 9th day of March, A.D. 2009, before the subscriber, a Notary Public of the State of Maryland, duly
commissioned and qualified, came DAVID S. HEWETT, Vice President, and GREGORY E. MURRAY, Assistant Secretary
of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND
SURETY COMPANY, to me personally known to he the individuals and officers described in and who executed the
preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and
each for himself deposeth and saith, that they arc the said officers of the Companies aforesaid, and that the seals affixed to the
preceding instrument is the Corporate Seals of said Companies, and that the said Corporate Seals and their signatures as such
officers 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.
i/r{ tip. l,l✓./ry'..r
Constance A. Dunn Notary Public
My Commission Expires: July 14, 2011
POA•F 076-6692A
EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND
"Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice -President, or any of the Senior
Vice -Presidents or Vice -Presidents specially authorized so to do by the Board of Directors or by the Executive Committee,
shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident
Vice -Presidents, Assistant Vice -Presidents and Attorneys -in -Fact as the business of the Company may require, or to
authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations,
policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in
the nature of mortgages,...and to affix the seal of the Company thereto."
EXTRACT FROM BY-LAWS OF COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
"Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice -President, or any of the Senior
Vice -Presidents or Vice -Presidents specially authorized so to do by the Board of Directors or by the Executive Committee,
shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident
Vice -Presidents, Assistant Vice -Presidents and Attorneys -in -Fact as the business of the Company may require, or to
authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations,
policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in
the nature of mortgages,... and to affix the seal of the Company thereto."
CERTIFICATE
1, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, 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 the Vice -President who
executed the said Power of Attorney was one of the additional Vice -Presidents specially authorized by the Board of Directors
to appoint any Attorney -in -Fact as provided in Article VI, Section 2, of the respective By -Laws of the FIDELITY AND
DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND SURETY 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 FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on
the 10th day of May, 1990 and 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.
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 0f� day of /If/iC11
Assistant Secretary
COLORADO DEPARTMENT OF TRANSPORTATION
Address. 10501 M. 10th Street
Crawley, Colorado 80934
Nom (970) 350-2161 FAX (970) 330-2178
Right of Toy Pion Units: PMtos T. &dmedtad,. PIS
Sheet Revisions
LTV
WELD COUNTY
PUBLIC WORKS 0EPAW1MFTT
1111H BIRFEF
P.O.110X 756
OREPIIWY. 00110612.0712
PHONE (919)34J90e
FAX: (970) 304647
Pro
Project 1Poa09rc MICR 74 • S.H. 392i534035 -
Pro'
Right Of Way Piano
Ownershia Mao
robs: SIIIC 030-057
t S2441-T9B
Code
9592
Lost Med. Dote
SOW
Told Shake
1-16-15
9.01 to 001
9.01
35
SCALE: 1"-1000'
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$C. 6071334400010
2BCP 03676411,.,...`'...
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CORNISH PLAINS LIVESTOCK LLLP
PARC (1079903200019
RIBA 0255401 a 255491
13114300.1.
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MICHELE CARMICHAEL
PARC.9071335000020
OECP 02477656
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KERN INVESTMENTS LLLP
PARC.P071335000319
RECP44012227
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