HomeMy WebLinkAbout20110050.tiff RESOLUTION
RE: APPROVE LONG-TERM ROAD MAINTENANCE AND IMPROVEMENTS AGREEMENT
FOR SECOND AMENDED USE BY SPECIAL REVIEW PERMIT#840,AND AUTHORIZE
CHAIR TO SIGN - L.G. EVERIST, INC.
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 Long-Term Road Maintenance and
Improvements Agreement for Second Amended Use by Special Review Permit#840 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 L.G. Everist, Inc., commencing upon full
execution, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review,the Board deems it advisable to approve said 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 Long-Term Road Maintenance and Improvements Agreement for Second
Amended Use by Special Review Permit#840 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 L.G. Everist, Inc., 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 5th day of January, A.D., 2011.
BOARD OF COUNTY COM ISSIONERS
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Date of signature: 2n
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a MEMORANDUM
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TO: Clerk to the Board
DATE: 1/3/2011
COLORADO FROM: Richard Hastings, Public Works Department
SUBJECT: BOCC Agenda Item: Approve "Long-Term
Maintenance & Improvements Agreement"
L.G. Everist"Carr Gravel Resource"
(2nd AmUSR-840)
Request for Approval of Long-Term Maintenance & Improvements Agreement:
The Department of Public Works and the Department of Planning Services received a request
from the applicants' representative, Lynn Mayer Shults/ L.G. Everist, requesting that the Board of
County Commissioners consider approving the "Long-Term Maintenance & Improvements
Agreement" for the proposed rail transload facility (Everist Facility) 2ndAmUSR-840, located
immediately east of Carr, Colorado on WCR 126.
Weld County Public Works Department reviewed the above-mentioned signed original documents
and observed the following:
• All Public Works related items, of the "Long-Term Maintenance & Improvements
Agreements", are found to be acceptable.
Request to Waive the Acceptance of Collateral:
The Department of Public Works and the Department of Planning Services received a request
from the applicants' representative, Lynn Mayer Shults/L.G. Everist requesting that the County
not require collateral be posted for this agreement, as the original agreement for AmUSR-840 did
not require collateral.
Recommendation:
The Departments of Public Works and Planning Services are recommending approval of the
"Long-Term Maintenance & Improvements Agreements", and that no collateral be required, as
defined in the previous paragraph, for L.G. Everist "Carr Gravel Resource"- (2"d AmUSR-840).
pc: Dave Bauer, County Engineer
• Kim Ogle, Planning Services
C:\Documents and Settings\estrong\Local Settings\Temporary Internet Files\ContentOutlook\JY46OXBT\Approve LTMIA (2nd AmUSR-840)L
G Everist Carr Gravel Resource-MEMO.docx
2011-0050
L.G. INC.
EVERIST, INC CORPORATE OFFICE
!� 300 S.PHILLIPS AVE.•SUITE 200
P.O.BOX 5829
SIOUX FALLS,SD 57117-5829
■�,- PHONE 605-334-5000
FAX 605-334-3656
MOUNTAIN DIVISION
7321 E.88TH AVENUE•SUITE 200
HENDERSON,COLORADO 80640
303-287-9606
FAX 303-289-1348
December 23, 2010 n
u L DEC 2 8 2010
fi
WELD CDUfJfY PU6LIC
Richard Hastings nFvT
Weld County Public Works
P.O. Box 758
Greeley, Colorado 80632
RE: 2n" AmUSR-840, Carr Gravel Resource
Long-Term Road Maintenance and Improvements Agreement
Dear Rich:
L.G. Everist, Inc. and Weld County have agreed on changes to the Long-Term Road Maintenance and
Improvements Agreement for 2nd AmUSR-840, Carr Gravel Resource. L.G. Everist has signed the
Agreement and the original is attached for the County's signature.
If you need anything else to finalize this with the Weld County Board of Commissioners, please contact
me at 303-286-2247 or Imshults@Igeverist.com. Thank you.
Sincerely,
al
Lynn Mayer Shults
Regulatory Manager
cc: Dennis Fields
David Bauer
Don Carroll
Kim Ogle
C-WELD-2 ndAm US R840-Ro a dAg rmt-cove rltr-Dec2010.d oc
COUNTY OF WELD, STATE OF COLORADO
773
LONG-TERM ROAD MAINTENANCE AND
IMPROVEMENTS AGREEMENT
THIS AGREEMENT made and entered into this 28th day of February,2001,and amended this 24th
day of November, 2010 by and between the County of Weld, State of Colorado, hereinafter called
"COUNTY" and L. G. Everist, Inc. (2ndAmUSR-840), hereinafter called "EVERIST", previously
doing business as Andesite Rock Company (ARC).
WHEREAS, EVERIST has acquired land use permits from the COUNTY for a proposed rail
transload facility (Everist Facility) for off-loading, storage, and load-out of industrial materials,
including the ability to fabricate, repair and make modifications of existing rail cars, the
extension of the existing on-site rail spur to create a "rail loop" of onsite track, including the
utilization of more than one cargo container for storage and ongoing Gravel Mining, (sand,
gravel and stone), on approximately 1,400 acres in the Agricultural Zone District located in parts
of Sections 26, 27, and 35, Township 11, North, Range 67 West and part of Section 1, Township
10, North, Range 67 West of the 6th P.M, Weld County, Colorado and
WHEREAS, the proposed Everist Facility activities will generate and may increase heavy
truck traffic, and
WHEREAS,the existing County roads that serve the proposed Everist Facility shall require
increased maintenance and improvement due to the increase in heavy truck traffic, and
WHEREAS, COUNTY and EVERIST have reviewed maintenance and improvements
proposals put forth by EVERIST and COUNTY, and both parties agree that such maintenance and
improvements will enhance the accessibility and safety of the roads that serve the Everist Facility.
NOW,THEREFORE,in consideration of the mutual covenants and conditions hereinafter set
forth, COUNTY and EVERIST mutually agree as follows:
1. EVERIST will provide for the duration of any material haulage from the Everist
Facility (permitted as 2ndAmUSR-840) with the street address of 61000 WCR 21,
Weld County, Colorado):
A. Adequate maintenance on the roadways noted as westbound and eastbound
material haul routes below:
The westbound route defined as follows: out of the north entrance of the
Everist Facility onto paved Weld County Road(WCR) 126 thence westward
to Interstate 25.
The eastbound route defined as follows: out of the north entrance of the
Everist Facility onto paved WCR 126 eastward to U.S. Highway 85.
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B. The south entrance to the Everist Facility shall be utilized for hauling of sand,
gravel, and aggregate materials. Trucks associated with the transload
operations may only use the south entrance with Public Works permission,
specific to a transload project. Truck haul traffic that utilizes the south
Everist Facility entrance will access directly onto unpaved Weld County
Road 120, then travel east to U.S. Highway 85.
C. EVERIST shall ensure that tracking of mud and gravel onto County roads is
prevented by use of appropriate tracking controls.
D. If the volume of heavy truck traffic utilizing the south entrance generates
more than five (5) round trips per day, adequate dust suppression shall be
required as needed adjacent to each residence on the unpaved portion of the
haul route. The following dust control agents are approved for use on
County roads by the Weld County Health Department and the Public Works :
1. Potable water or ground water
2. Magnesium chloride
3. Calcium chloride.
2. To ensure the public safety, health and welfare, EVERIST agrees to notify County
and area emergency responders of the location, timing, type, amount, and proposed
haul routes of any Hazardous Materials to be delivered to, off-loaded, stored,
stockpiled, or hauled to and from the Everist Facility.
3. Overweight, over length, or over height heavy haul trucks shall obtain the required
County and State permits.
4. EVERIST agrees to notify its lessees that they must abide by the provisions of this
Agreement.
5. EVERIST agrees to excavate,repair,or patch any damage on said roads that has been
created by heavy truck hauling from the Everist Facility as determined by the Weld
County Public Works Director or his designee.
6. At any time in the future, when road damage has increased beyond the point that
repair or patching can reasonably restore the roads, EVERIST will cooperate with
County in reconstruction of those parts of said roads.
7. When reconstruction is required,EVERIST shall pay a proportional share of the cost
to reconstruct. The share will be determined by dividing the volume of the site-
generated trucks by the total volume of trucks. Site-generated traffic includes the
traffic generated by the lessees' activities. The County will provide the traffic
volumes, testing, and inspection for the construction.
8. The County will reimburse EVERIST for the cost of AC-10 liquid asphalt required to
manufacture the hot bituminous pavement.
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9. Failure of either party to perform any of its respective obligations hereunder by
reason of acts of God, strike, or acts of any governmental agency or authority having
jurisdiction over matters set forth herein shall excuse timely performance of such
obligations as soon as reasonably practical. The parties may, however, mutually
consent to excuse a party from performing any obligation,in whole or in part,upon a
showing that performance has been rendered impracticable by reason of FORCE
MAJEURE.
10. This Agreement may not be assigned in whole or in part by either party hereto
without the written consent of the other party. Such consent will not to be reasonably
withheld, conditioned, or delayed.
11. If any clause or provision of this Agreement is illegal,invalid,or unenforceable,then
it is the intention of the parties that the remainder of this Agreement shall not be
affected.
12. Should EVERIST sell its operation, cease operating, file bankruptcy, or in any way
release ownership and responsibility of the permitted property, Everist's obligations
under this Agreement continue unless and/or until terminated by the County. If the
aforementioned release should occur, EVERIST shall give a minimum notice of
ninety(90)days to the County before the date of termination. If the aforementioned
release should occur, the County shall have the option of immediately terminating
this Agreement. Notwithstanding the terms of this paragraph, the requirements of
2ndAmUSR-840 shall not be waived by the terms of this paragraph and the failure to
have a maintenance Agreement in effect may be grounds to revoke 2ndAmUSR-840.
13. All construction and materials controls for a project will be in accordance with the
current Standard Specifications for Road and Bridge Construction,as supplemented
or revised, provided by the Colorado Department of Transportation. During
construction, signage shall be posted in accordance with the most current Uniform
Manual on Traffic Control Devices.
14. It is expressly understood and agreed that 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 actions whatsoever by any other person not
included in this Agreement. It is the express intention of the undersigned parties that
any entity other than the undersigned parties receiving services or benefits under this
Agreement shall be deemed an incidental beneficiary only.
15. Indemnification: To the extent authorized by law, EVERIST agrees to indemnify,
save, and hold the County harmless from and against any and all claims, damages,
losses, and judgments, which may be suffered or incurred by the County as a
consequence of any breach by EVERIST of its obligations and duties set forth in this
Agreement on those portions of the haul route described in this Agreement. In the
event that any dispute shall arise under this Agreement,the prevailing party in such
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dispute shall be entitled, in addition to any other relief to which such party may be
granted, to recover its reasonable attorney's fees and court costs incurred in
connection with the resolution of such dispute. 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.
16. By entering into this Agreement, the parties do not intend, either expressly or
implicitly,to create ajoint venture or partnership. Except as provided herein,neither
party shall have the right or authority to act for, or on behalf of, or to enter into any
obligations which are binding on the other party to this Agreement.
17. All notices to be given under this Agreement shall be in writing and delivered in
person, or mailed by certified or registered U.S. Mail, or sent by a nationally
recognized overnight delivery service, to the party to receive such notice at the
following addresses:
Weld County Board of Commissioners (COUNTY)
P.O. Box 758
Greeley, CO 80632
L. G. Everist, Inc. (EVERIST)
7321 East 88th Avenue, Suite 200
Henderson, CO 80640
18. All notices shall be effective upon receipt by the party to receive such notice, or by
the third day following deposit of said notice in U.S. Mail, or the first day following
deposit of acknowledgment of refusal of delivery of said notice.
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IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement the day and
year first above written.
WHEREFORE,parties have hereunto set their hands and seals the date and year first written
above.
ATTEST: L. G. EVERIST, INC.
Z11/61tAl
By:
D
By:
Lynn M. Shult , egulatory Manager Dennis Fields, Vice President
By: —Liz, ,,. s 11:-,2 ick
ATTEST: BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Weld County Clerk tot Barbara Kirkmeyer 64 Chair
ISM ,�.
°' JAN 052011
ki.s�`n ,I
By: %-\:1\
Deputy lerk to the Board
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