HomeMy WebLinkAbout20140145.tiff RESOLUTION
RE: APPROVE NEW INTERIM ROAD MAINTENANCE IMPROVEMENTS AGREEMENT
ACCORDING TO POLICY REGARDING COLLATERAL FOR TRITON WATER
DEPOT, AUTHORIZE CHAIR TO SIGN, AND RETAIN COLLATERAL FOR SITE
PLAN REVIEW, SPR12-0010, LOCATED IN LOT ONE (1) OF THE NINE (9) LOT
SUBDIVISION APPROVED IN MINOR SUBDIVISION, MINF12-0001 - BIG
THOMPSON INVESTMENT HOLDINGS, LLC, C/O MARK GOLDSTEIN
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 October 31, 2012, the Weld County Board of Commissioners approved a
Minor Subdivision Final Plan, MINF12-0001, for Big Thompson Investment Holdings, LLC, 1205
W. Elizabeth Street, P.O. Box 134, Ft. Collins, Colorado 80521, for a nine (9) Lot Minor
Subdivision in the 1-3 (Industrial) Zone District on the following described real estate, to-wit:
Lot B of Recorded Exemption, RECX12-0056;
being part of the W1/2 of Section 23, Township 4
North, Range 66 West of 6th P.M., Weld County,
Colorado
WHEREAS, On April 3, 2013, the Board was presented with an Interim Road
Maintenance Improvements Agreement for Triton Water Depot 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 Big Thompson Investment Holdings, LLC,
c/o Mark Goldstein, with terms and conditions being as stated in said agreement, and was
presented with Company check#1319 from Big Thompson Investment Holdings, LLC, drawn on
Mile High Banks, 601 S. Main Street, Longmont, Colorado 80501, in the amount of $2,400.00,
and
WHEREAS, the Board has been presented with a new Interim Road Maintenance and
Collateral Agreement, which supersedes the previous agreement approved on April 3, 2013,
and agrees to retain the collateral received from Big Thompson Investment Holdings, LLC, in
the amount of$2,400.00.
WHEREAS, after review, the Board deems it advisable to approve said new agreement
and retain said business check as stated above, copies of which are attached hereto and
incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the new Interim Road Maintenance Improvements Agreement
which supersedes the prior agreement approved April 3, 2013, for Triton Water Depot 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 Big
Thompson Investment Holding, LLC, c/o Mark Goldstein, be, and hereby is, approved.
BE IT FURTHER RESOLVED that Company check #1319 from Big Thompson
Investment Holding, LLC, drawn on Mile High Banks, 601 S. Main Street, Longmont, Colorado
80501, in the amount of$2,400.00, be and hereby is, retained.L' C: P(,U1 f p
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Steve Moreno. Clerk and Recorder. Weld County. CO PL2147
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IMPROVEMENTS AGREEMENT- BIG THOMPSON INVESTMENT HOLDING, LLC
PAGE 2
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 15th day of January, A.D., 2014.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: W_dede.4., ,9.•• / cd
oug li ��i✓
` las Radem c er, Chair
Weld County Clerk to the Boar. , , ♦ / f�
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f ' Barbara Kirkmeyer//Pro-Tem /
Depu Clerk to the Bo ' r '4 - -. 'P
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/Sean P. Conway
AP ED AS M: ®l �' l,111r_ -
Mike F eem
o y Attorney
!! Willia . Garcia
Date of signature: I -49 --1(-4
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2014-0145
PL2147
INTERIM ROAD MAINTENANCE AND COLLATERAL AGREEMENT, WELD COUNTY
CASE MINF12-0001
THIS AGREEMENT, made and entered into this /J day of jaw/Lary , 201 y,
by and between the County of Weld, State of Colorado, acting through the Bo rd of County
Commissioners, hereinafter "County," and Big Thompson Investment Holdings LLC, C/O Mark
Goldstein, hereinafter"Thompson."
RECITALS
WHEREAS, Thompson owns the following described property in the County of Weld,
Colorado:
Lot B of Recorded Exemption, RECX-12-0056; located in part of the NW4 of Section
23, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado,
consisting of approximately 93.71 acres (hereinafter the "Property"), and
WHEREAS, on October 31, 2012, the Board of Weld County Commissioners approved a
nine (9) lot Minor Subdivision(hereinafter"Subdivision") on the Property in case MINF12-0001,
and
WHEREAS, on April 3, 2013, Thompson and County entered into the Interim Road
Maintenance Agreement, regarding the required maintenance of certain portions of Weld County
Road 33 in relation to operation of the Triton Water Depot, SPR12-0010, and
WHEREAS,because of anticipated additional businesses operating out of the Subdivision,
Thompson wishes to enter into this Agreement detailing maintenance obligations for certain Weld
County Roads, as specified herein, and
WHEREAS, upon execution, this Agreement shall supersede the Interim Road
Maintenance Agreement, dated April 3, 2013, and
WHEREAS, Thompson has not yet completed all of the conditions of approval nor
submitted a final plat (hereinafter "Final Plat") for the Property as required pursuant to the Weld
County Board of Commissioners resolution in case MINF12-0001.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and
covenants contained herein, the parties hereto promise, covenant and agree as follows:
1. Recitals. The above set forth recitals are incorporated herein as if fully set forth herein.
2. Supersede Interim Road Maintenance Agreement. Thompson and County agree that upon
execution, this Agreement shall supersede the Interim Road Maintenance Agreement, dated
gT P g >
April 3, 2013,between Thompson and County, and the Interim Road Maintenance Agreement
shall terminate in its entirety.
3. Term. Thompson shall be responsible for the off-site road maintenance, as detailed in Section
5 of this Agreement, on CR 33 from US 85 to CR 42, (hereinafter the "Haul Route") and any
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Steve Moreno, Clerk and Recorder. Weld County, CO
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other roadways impacted by Subdivision traffic, until all of the following conditions are
fulfilled:
A. The MINE12-0001 Final Plat is recorded, AND
B. The MINF12-0001 Improvements Agreement is executed and any required collateral is
posted by Thompson, AND EITHER
C. The title to the County owned property located in the NW4, S23, T4N, R66W of the 6th
P.M., Weld County, CO, commonly known as 16460 Weld County Road 44, is transferred
to Thompson by County pursuant to the terms of the Agreement for the Exchange of
Certain Real Property Between Big Thompson Investment Holdings,LLC and Weld County
Colorado, executed contemporaneously with this Agreement (hereinafter "Exchange
Agreement"); OR
D. The Exchange Agreement is terminated for any reason.
Upon fulfillment of the above conditions,this Agreement shall terminate and road maintenance
obligations and triggers shall be thereafter be governed by the terms of the MINF12-0001
Improvements Agreement. Thompson agrees that any maintenance obligations for which
Thompson is responsible during the term of this Agreement and which have not been addressed
at the time of termination of this Agreement shall remain Thompson's obligation subsequent
to termination of this Agreement and such obligation shall be addressed by Thompson pursuant
to the terms of the MINF12-0001 Improvements Agreement.
4. Haul Route Parameters.
A. Subdivision traffic shall enter or exit the Subdivision only at County approved accesses
onto CR 33. Haul truck traffic shall consist of the following:
i. Ninety-five percent (95%) of traffic will travel north on CR 33 to US 85.
ii. Five percent(5%) of traffic will travel south on CR 33 to CR 42.
B. No haul truck entering or exiting the Subdivision may exceed CDOT required
specifications for pounds per axle.
C. 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 by County.
5. Off-Site Road Maintenance Obligations. Thompson shall be solely financially responsible for
the grading, excavation, repair, and patching of any damage on the Haul Route and any other
impacted roadways, which, in the sole discretion of the County Engineer, has been created by
vehicle traffic to and/or from the Subdivision. Should the Subdivision's activities and/or
vehicle circulation patterns change so that County approves an alternate haul route, Thompson
shall also maintain any new haul routes in accordance with County instructions. The type and
method of any repairs will be determined in the sole discretion of the County Engineer. A
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Steve Moreno, Clerk and Recorder. Weld County. CO
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Thompson representative shall regularly inspect the Haul Route during the term of this
Agreement to monitor whether maintenance is required.
A. Dust Control/Abatement. As part of its road maintenance obligations, Thompson shall be
responsible for dust control/abatement along the Haul Route and any other roadway(s)
impacted by Subdivision traffic. Thompson shall contract with a private service/contractor
to maintain and provide Mag-Chloride for affected roadway(s), the extent and frequency
of application as determined in the sole discretion of the County Engineer.
B. Tracking: Thompson shall place and maintain crushed concrete at the access from CR 33
to the Property to mitigate the tracking of mud and debris onto CR 33.
C. Immediate Repairs. In the event of damage to the Haul Route or other roadways by
Subdivision traffic that causes an immediate threat to public health and safety or renders
the road impassible(hereinafter"Significant Damage"), County shall notify Thompson by
email to markgoldstein(agoldsteinenterprisesinc.com, of such Significant Damage. The
sending of such email shall be deemed notice to Thompson of Significant Damage.
Thompson shall respond by email identifying the repair required and shall consult with the
County Engineer on the extent, type, timing, materials and quality of repair(i.e. temporary
versus permanent)within twenty-four(24)hours after the issuance of such notice and shall
commence such repair within forty-eight (48) hours after issuance 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 posted pursuant to Section 6 below and
use such funds to perform repairs. If Thompson identifies Significant Damage prior to
receiving notice thereof from County,Thompson 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) so that the County Engineer may consult
with Thompson regarding the repairs.
D. Non-Immediate Repairs. Where damage caused by Subdivision traffic does not cause an
immediate threat to public health and safety or render the road impassable, and the County
is the first to notice such damage, County shall notify Thompson by email to
markgoldstein@goldsteinenterprisesinc.com. The sending of such email shall be deemed
notice to Thompson. Thompson shall respond by email identifying the repair required and
shall consult with the County Engineer on the extent, type, timing, materials and quality of
repair(i.e. temporary versus permanent) within fourteen (14) days of receiving notice and
Thompson shall commence repairs within thirty (30) days of receiving notice. If
Thompson does not consult with the County Engineer within fourteen (14) days and/or
commence repairs within thirty(30) days, County shall have the right to draw on the Road
Maintenance Collateral posted pursuant to Section 6 below and use such funds to perform
such repair. Should Thompson be the first to notice such damage, Thompson may
commence repairs and concurrently notify County of the extent,type,timing,materials and
quality of repair (i.e. temporary versus permanent), so the County Engineer may consult
with Thompson regarding the repairs.
6. General Collateral Requirements.
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Steve Moreno, Clerk and Recorder$ Weld County. CO
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A. County requires Thompson to provide collateral (hereinafter "Road Maintenance
Collateral") to guaranty all of Thompson's obligations under this Agreement. All Road
Maintenance Collateral shall be kept in place until the termination of this Agreement.
B. In the event Thompson fails to adequately complete and/or repair improvements associated
with this Agreement, County will access, in its sole discretion, the Road Maintenance
Collateral to the extent necessary to complete said improvements or repairs in order to
preserve the public interest. Should Road Maintenance Collateral be insufficient to
complete required improvements or repairs, County may utilize all existing Road
Maintenance Collateral and Thompson shall be liable for fully reimbursing County for any
additional County expenditures to complete the improvements or repairs. Reimbursement
by Thompson for such additional costs shall be within fifteen (15) days of notice of such
expenditures to Thompson.
C. Road Maintenance Collateral shall be submitted to County upon approval of this
Agreement by the Board of County Commissioners. Road Maintenance Collateral is held
for use on the Haul Route or any other roadway(s) damaged by Subdivision traffic. The
amount of the collateral required for this Agreement shall be two-thousand four hundred
dollars ($2,400.00) for the CR 33 Haul Route. Road Maintenance Collateral shall be held
by County until the termination of this Agreement. If any of this collateral shall be utilized
by County, Thompson shall replace the amount, plus interest, within one month.
D. Collateral may be in the form of an irrevocable letter of credit (hereinafter "LOC") in an
amount equivalent to one-hundred percent (100%) of the total value of the improvements
set forth in this Agreement. The LOC shall be subject to the requirements of Weld County
Code Section 2-3-30 B. Thompson shall utilize only a County approved form when
obtaining an LOC: (IRRVEVOCABLE STANDBY LETTER OF CREDIT FOR BOARD
OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said
form shall be provided to Thompson upon request.
E. 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 this Agreement. The surety bond shall
conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4.
Thompson 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 Thompson upon
request.
F. 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
this Agreement.
G. 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 company which does not have at least a B+ rating given by A.M. Best. The
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Steve Moreno. Clerk and Recorder, Weld County. CO
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Board further reserves the right to require Thompson 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 Thompson within sixty(60) days of
the Board's notice to Thompson that the rating has fallen and that the collateral must be
replaced. Thompson may not terminate existing collateral until replacement collateral has
been secured.
H. Road Maintenance Collateral for the CR 33 Haul Route shall be maintained throughout
the term of this Agreement and shall be released upon termination of this Agreement
pursuant to Section 3 of this Agreement.
7. Successors and Assigns. This Agreement may be delegated, transferred or assigned in whole
or in part by Thompson to Peckham Development Corporation,a Colorado corporation,whose
address is C/O Mark Goldstein, President, PO Box 273180, Fort Collins, Colorado 80527,
provided that a copy of any agreement for assignment is provided to County. Assignment to
any other party shall require prior approval by the Weld County Board of Commissioners.
8. County Engineer. All references in this Agreement to "County Engineer" shall refer to the
County Engineer or any individual or individuals appointed by the County Engineer to act on
his/her behalf
9. Violation of Terms of Agreement. If in County's sole opinion, Thompson has violated any of
the terms of this Agreement, County shall notify Thompson of its belief that this Agreement
has been violated and shall state with specificity the facts and circumstances which County
believes constitute the violation. Thompson 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 refuse to issue permits for grading,building, or otherwise, for the entire Subdivision until
the violation has been cured to County's satisfaction. Additionally, 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.
10. 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.
11. 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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Steve Moreno. Clerk and
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12. 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 County, Thompson shall provide County with proof of
Thompson'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.
Big Thompson Investment Holdings, LLC,
a Colorado limited liability company
SIGNATURE 6
Mark S. Goldstein, Ma
Weld County Board of Commisioners rs�
SIGNATURE c_we(on t" 14StG. CL'r
Dog Rademacher, Chairman
JAN 1 7014
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: - �^ n Q
W'xib,s d6l`.. l�l1L;r
Douglas Rademach
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Weld County Clerk to the Board '�s��
6
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Steve Moreno. Clerk and Recorder. Weld County. CO
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BY: azzac
Deputy Clerk'the Board 7
/
APPROVED AS TO FORM:
`County Attorney
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Steve Moreno. Clerk and Recorder. Weld county. Co
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