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Home My WebLink About20151885.tiff RESOLUTION RE: APPROVE POSSESSION AND USE AGREEMENT AND AUTHORIZE CHAIR TO SIGN - M & J DAIRY, LLC 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, the Board has been presented with a Possession and Use Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Works, and M & J Dairy, LLC, commencing July 1, 2015, with further terms and conditions being as stated in said Agreement, and WHEREAS, after review, the Board deems it advisable to approve said Possession and Use Agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Possession and Use Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Works, and M & J Dairy, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said Agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 29th day of June, A.D., 2015. BOARD OF COUNTY COMMISSIONERS WE D COUNTY, COL RADO ATTEST:ddriwo �C,ILog t� k1 arbara Kirkmeyer, hair Weld County Clerk to the Board Mike Freeman, ro-Tem BY: > I_ _ De u Clerk to the Boa Sean . nw ulie A. Cozad Coun y Attorney O170 ♦ r Steve Moreno Date of signature: L CG: i ,`R ' I� 2015-1885 '-� EO0072 Q e© LIND, OTTENHOFF & ROOT 14LP .� neth F.Lind Attorneys at, Law w s s H. Ottenhoff John D. Root 355 Eastman Park Dr., Ste. 200 • Windsor, CO 80550 Telephone: (970) 674-9888 • Fax: (970) 674-9535 rysten S. Hinze Email: stephanie@lorlegal.com June 23, 2015 Bob Choate Assistant Weld County Attorney P.O. Box 758 Greeley, CO 80632 RE: M&J Dairy, LLC Possession and Use Agreement Dear Mr. Choate: Enclosed please find two (2) originals of the Possession and Use Agreement executed by Joann Flaschenriem. Please return one (1) fully executed copy to our office. Yours very truly, LIND, OTTENHOFF & ROOT LLP Stephanie J. Roe Legal Assistant to Kenneth F. Lind and Chrysten S. Hinze /sr Enclosures pc: aois- /SYS POSSESSION AND USE AGREEMENT Of THIS AGREEMENT and attached Access Addendum is made thi492/ day of June 2015 , by and between M & J Dairy, LLC, a Colorado Limited Liability Company, hereinafter referred to as "Owner" and the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, hereinafter referred to as "County" . WHEREAS, Owner owns real property described in the attached Exhibit "A" (hereinafter referred to as the "Property"), made a part hereof by reference; and WHEREAS , County finds it necessary to construct safety improvements, which involve widening Weld County Road 49, which will involve said road' s realignment and construction, (hereinafter referred to as "Road Improvement Project"); and WHEREAS , County requires said Property in order to complete said Road Improvement Project, and is need of possession of said Property by July 1 St, 2015 , and the Parties have not yet agreed upon the form of the conveyance or the compensation to be provided to the Owner; and WHEREAS, Owner and County are currently negotiating the purchase and sale of said Property; and WHEREAS, Owner wishes to cooperate with County in said Road Widening Improvement Project. NOW, THEREFORE, the Parties agree as follows: 1 . In consideration of this irrevocable grant of possession, mutual promises and covenants contained herein, County will tender the Owner the sum of Five Thousand and no/100 ($5 ,000.00) dollars. The County shall be entitled to take possession of the Property described in Exhibit A beginning July 1 , 2015 for the purposes described in this Agreement. It is agreed this sum shall be deducted from any final settlement amount, award, or verdict. It is also agreed in the event the ultimate settlement amount, award, or verdict is less than this amount the Owner shall refund the difference to the County. 2 . Owner agrees to grant the Property to County, in a form to be determined prior to closing. 3 . This agreement is made with the understanding the County will continue to negotiate in good faith with the Owner to acquire the interest in the property. It is further understood in the event a settlement is not reached within 90 days of the signing of this agreement, such failure will be a confession that the negotiations to acquire the Property described herein have proved futile. At this point, the County may begin 1 2015- 1885 proceedings in eminent domain to acquire title to the Property herein described . The County shall not unreasonably delay the commencement of proceedings under the eminent domain law once the time provided for in this paragraph has expired. If the County begins proceedings in eminent domain , it is understood and agreed this agreement shall continue in effect until either a settlement is reached or a rule and order is entered by the court, as provided for in C. R. S . 38- 1 - 105(3 ) . If such proceedings are begun, this Possession and Use Agreement shall operate as a stipulation to immediate and continued possession of the Property pursuant to C.R. S . 38- 1 - 105 (6) . 4. It is agreed by the undersigned, in the event proceedings in eminent domain are begun, the valuation day for determining the amount of just compensation shall be the date on which payment was tendered to the owner, pursuant to paragraph one above . 5 . This Agreement shall be deemed a contract and shall bind the parties and shall extend to and bind their heirs, executors , administrators , legal representatives, successors , and assigns . 6 . This Agreement embodies all of the agreements between the parties hereto and there are no promises, terms , conditions, or obligations referring to the subject matter whereof other than as contained herein . IN WITNESS WHEREOF, the parties hereto have subscribed their names thisgrday of June, 2015 . OWNER, M & J DAIRY , LLC By: fLJmsseta- Joa7jiFlaschenriem3 Manager 2 ATTEST: d ; BOARD OF COUNTY COMMISSIONERS We . _e my Clerk to the B d � WELD COUNTY, C LORADO 1 1. 4 Deput rk to the Boar. ,.�+!•. • bara Kirkmeyer, Chair t JUN ISZ015 SVED AS T FU DIN . PPROVED AS TO SUBSTANCE: - Q Controller Elected Official epa`tment Head A ROVED AS TO FORM: Dec r Public r s County Attorney 3 ep / 07075—/S C `' ACCESS ADDENDUM TO POSSESSION AND USE AGREEMENT The Parties to the Possession and Use Agreement recognize that the current vehicular access points to Owner' s property from Weld County Road 49 are expected to change, with specific access points to be determined during the design process . The current accesses are depicted in the diagram below. Weld County agrees to direct the Design-Build Contractor to use the following information in the course of its design . • Accesses E26 and E25 are residential accesses that shall be combined and aligned directly across from future Weld County Road 52 . • Access E24 is a ditch access that shall remain. • Accesses E12, E13 , E22 and E23 are oil and gas facility accesses that should be closed . Owner does not have exclusive authority to close these accesses , however, the County will attempt to negotiate closure with the oil and gas companies that have ownership interests (such as a Surface Use Agreement or otherwise) in the accesses . Owner agrees not to object to closure of these accesses. • Access E21 shall remain . • Accesses E20 and E 19 shall be closed and access E21 shall be used instead. However, Owner does not have exclusive authority to close these accesses and County will attempt to negotiate closure with the oil and gas companies that claim an interest in these accesses and attempt to reach agreement for said companies to utilize access E21 instead. Owner agrees not to object to closure of these accesses. • Access E 18 shall remain. • Accesses E17 , E16, E 15 , E14, E13 , E12, and E 11 should be closed. In place of these closed accesses , a new access may be constructed approximately 660 feet north of access E18 . a '"° • .woeigR. MY b A• • 1 s a 9 T 1 . U7 Y . A ASC N, , ASCt IA U A 0.► �1,' Iv I r7 If A Mlo s Ts' CN : I-'' • 1 -, '4: * b la g to '' ' a•lJ p Sr / . • * , t . i dive N UJ Ul r Ist ! # a 4 •i V ,. Jti•y ^�� ,y, ``T'^l ..4 ' {x ..1 s P t V • An* - 0 6 f lac 14 , SIX n G • i. ,..':,., .... S'.,- ',. ° " tot I,a . ;« a. •v N n ~ 1,,'0 '",,!at A 0 a4~ • o(X 1 at 411111$ 44 ,y. ' ,xV-w :,p1 'rAt7 • 1 . IF IF . , , 1 _ l x �^, u , n " ASCA r4 II* gym " � " A e .• * Witt x x 6 { t ' 4 EXHIBIT - A RIGHT- OF- WAY A PARCEL OF LAND , LOCATED IN THE SOUTHWEST ONE- QUARTER OF SECTION 30, TOWNSHIP 5 NORTH , RANGE 64 WEST OF THE SIXTH PRINCIPAL MERIDIAN , COUNTY OF WELD , STATE OF COLORADO, SAID PARCEL BEING A PORTION OF THAT DEED FILED IN THE WELD COUNTY CLERK AND RECORDERS OFFICE UNDER RECEPTION NO. 3863313 AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SECTION 30, TOWNSHIP 5 NORTH , RANGE 64 WEST AND DESCRIBED AS SHOWN AND IS BASED ON A GRID BEARING OF THE WEST LINE OF THE SOUTHWEST ONE- QUARTER OF SAID SECTION 30 AS BEARING NORTH 00'12' 56 " WEST A DISTANCE OF 2648. 30 FEET TO THE WEST ONE- QUARTER CORNER OF SECTION 30, TOWNSHIP 5 NORTH , RANGE 64 WEST ALSO DESCRIBED AS SHOWN ; THENCE NORTH 89'36 ' 33" EAST ALONG THE SOUTH LINE OF THE SOUTHWEST ONE- QUARTER OF SAID SECTION 30 A DISTANCE OF 40. 00 FEET; THENCE DEPARTING SAID LINE NORTH 00 '12' 56" WEST TO A POINT WHICH INTERSECTS THE EXISTING EASTERLY RIGHT- OF- WAY LINE OF WELD COUNTY ROAD 49 AND THE EXISTING NORTHERLY RIGHT- OF- WAY LINE OF WELD COUNTY ROAD 52 A DISTANCE OF 30. 00 FEET AND BEING THE POINT OF BEGINNING. THENCE NORTH 00'12' 56 " WEST ALONG SAID EASTERLY RIGHT- OF- WAY LINE A DISTANCE OF 2370. 40 FEET; THENCE NORTH 89'47' 04" EAST A DISTANCE OF 2. 13 FEET TO A NON - TANGENT POINT OF CURVE TO THE LEFT; THENCE 397. 52 FEET ALONG THE ARC OF SAID CURVE WHOSE RADIUS IS 15, 630. 00 FEET, CENTRAL ANGLE IS 01 '27'26" AND WHOSE CHORD BEARS SOUTH 01 '53' 21 " EAST A DISTANCE OF 397. 51 FEET; THENCE SOUTH 02'37' 04" EAST A DISTANCE OF 57. 28 FEET TO A POINT OF CURVE TO THE RIGHT; THENCE 661 . 22 FEET ALONG THE ARC OF SAID CURVE WHOSE RADIUS IS 15, 770. 00 FEET, CENTRAL ANGLE IS 0224' 08" AND WHOSE CHORD BEARS SOUTH 01 '25'00" EAST A DISTANCE OF 661 . 17 FEET; THENCE SOUTH 0012 '56 " EAST A DISTANCE OF 623. 82 FEET; THENCE NORTH 89'47' 04" EAST A DISTANCE OF 20. 00 FEET; THENCE SOUTH 0012 '56 " EAST TO A POINT ON SAID EXISTING NORTHERLY RIGHT- OF- WAY LINE OF WELD COUNTY ROAD 52 A DISTANCE OF 630. 84 FEET; THENCE SOUTH 89'36 '33" WEST ALONG SAID NORTHERLY RIGHT- OF- WAY LINE A DISTANCE OF 50. 00 FEET TO THE PO NT OF BEG NN NG, SAID PARCEL CONTAINS 70, 710. 55 sf± . OR 1 . 62 vc. ± MORE OR LESS. TOGETHER WITH EXISTING WELD COUNTY ROAD 49 AND WELD COUNTY ROAD 52 RIGHT- OF- WAY WHICH LIES IMMEDIATELY ADJACENT TO THE ABOVE DESCRIBED PARCEL CONTAINING 4. 9 ac. ± THE ABOVE DESCRIPTION WAS PREPARED BY LEON W. SIEVERS, RIGHT OF WAY AGENT AND SURVEYOR IN AND FOR WELD COUNTY, COLORADO. WELD COUNTY DEPARTMENT RIGHT OF WAY OF PUBLIC WORKS ACQUISITION RW-46ILI TE r■� WCR 49 CORRIDOR PROJECT BETWEEN WCR 52 & WCR 54 M & J DAIRY LLC DiNIN I, N y PROJECT NO : SRP-26 SCALE : 1 "=300 WCR 49 G U WELD COUNTY, COLORADO 1 DATE : 3 - 17- 15 BY : MB SHEET : 1 of 2 W 1 /4 COR . S30 T5N R64W EXHIBIT - A 3 1 /4" A. C . H 'r-L3 - t - - - - - - - - - - - - - - - - STAMPED LS#20685 Hi N- PT . _ . . - . . _ . . _ cOLD-w . . ° . . - . . 1987 IN MON . BOX i . NW COR .- 141- _ - _ _ - N0_ ACCESS ` - - - - - - 1 ' r S30 —T5N ' ? I _ R64W I NW 1/4 ' �/ re ' I ' v SaO ...- 1 ...R4x' I . I ! -� I � •40 of PC � ( I M & J DAIRY WCR 49 EXISTING ' ' 'St' , RIGHT- OF-WAY I i ---i C BK . 1046/PG . 28 I PT ; U : • ' WCR 49 EXISTING I RIGHT- OF-WAY - NTS- CONTINUED V STARK ( BK . 1046/PG . 28 - ' N cR 64 - - - c) I I --0--- 40 -----0--- _ __— __ ____- - I _____ � \ . I ,ate . � �� .. -Li ; :t) 4 W 1 /4 COR . M & J DAIRY c�E ) ;1,11 : i ; : o; / PC 1 S3O -T5N - R64W . NI it - HAMILTON -) / ! ' :wl N M & J DAIRY LLC ( I co �N I r ci PARC . # 096330100050 N r ' ! ol co S3 -T5N -. R64 = RECP . # 3863313 3863313 w SE 1/4 Zi 25µT N - R65W 00 0 /1, CURVE TABLE N E I • :ti C# LEN RADIUS DELTA CHD CHD BRG ' • . ' o Cl 397. 52' 15630. 00' 01 '27'26 " 397. 51 ' S01 '53' 21 " E w HAM L ON m i il (f) C2 661 . 22' 15770. 00' 02'24'08" 661 . 17' S01 '25'00" E too w r2i 1L5 , e � LINE TABLE 0 CO id i ZL----4J1 I LINE BEARING DISTANCE /Q - L1 N 89 '36' 33" E 40. 00' 0o ADDITIONAL L2 N00'12' 56" W 30. 00' !• ;J6 RIGHT- OF-WAY L3 N89 '47' 04"E 2. 13' co ACQUIRED I L4 S02'37' 04"E 57. 28' Lir J w 70 ,71 0. 55 Si . r L5 N89 '47'04"E 20. 00' BERNHARDT , I OR 1 . 62 ac . ± I to L6 S89 '36 ' 33"W 50. 00' N P . O . C . SW COR . ; O : o SE COR . S30 -T5N - R64W I I I (r) WCR 52 EXISTING NOTE: THIS EXHIBIT MAP DOES NOT REPRESENT S30 -T5N - R64W 2 1 /2 " A. C . L1 ' : 4- P , O. B RIGHT-OF-WAY A MONUMENTED LAND SURVEY OR LAND SURVEY 3 1 /4" A. C . . STAMPED LS#9644 I 6 BK.83/PG.339 PLAT. IT IS INTENDED TO ILLUSTRATE THE ILLEGIBLE 1999 IN MON . BOX ATTACHED PROPERTY DESCRIPTION - ONLY_ - - -- - - - - - - - - - - - - - - - - - - - - - - ;,.,-,M.,,. . THIS ?PRTI6 . . . . - - • • - WCR 52 - . . _ . . - . . ♦3 ,,.x . . 52.62,- . . _ . ` a- . _ . ._ -- - - - --, E. L2 - - -N893f 3 _ - �� 2 14 L ,INT N D �, ' WELD COUNTY DEPARTMENT RIGHT OF WAY ' 86 ' �� . OF PUBLIC WORKS ACQUISITION CTTrr CORRIDOR PROJECT WCR 49 BETWEEN WCR 52 & WCR 54 M & J DAIRY LLC *46.11_W -UNT TJiJ,iF YPROJECT NO : SRP-26 SCALE : 1 "=300 WCR 49--� WELD COUNTY, COLORADO DATE : 3 - 17- 15 BY : .111B SHEET : 2 of Hello