HomeMy WebLinkAbout20230837.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: DCP Operating Company LP — LAP23-0004
DEPARTMENT: Planning Services DATE: March 7, 2023
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Planning Services received a request from the applicant, DCP Operating Company LP,
requesting that the Board of County Commissioners consider approving the Road Maintenance During
Construction Agreement for (LAP23-0004). No collateral is required with this agreement.
Weld County Planning Services, Public Works, Oil and Gas Energy, and the County Attorney's Office have
reviewed the above mentioned signed original document and observed the following:
• All Public Works related items, of the "Road Maintenance Agreement According To Policy, are found
to be acceptable.
• This Agreement complies with the terms of the LAP Process as defined in the Weld County Code
and per the requirement of the Department of Public Works to protect our roadways from heavy
traffic during the construction period.
What options exist for the Board? (include consequences, impacts, costs, etc. of options):
1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendation:
Option 1. The Departments of Planning Services, Public Works, and the County Attorney's Office are
recommending approval of the Road Maintenance Agreement According To Policy for LAP23-0004, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Approve Schedule
Recognendation Work Session Other/Comments:
Perry L. Buck, Pro-Tem
Mike Freeman, Chair
Scott K. James
Kevin D. Ross
Lori Saine
PL(DA/5TM)
61.2A2 5
2023-0837
0 4-a 00 ,5
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
DCP Operating Company LP — LAP23-0004
n THIS AGREEMENT is made this o ay of ' _' 202,A, by and between DCP Operating
Company LP, a limited partnership organized under the laws of the State of Colorado, whose address is 3026
6th Avenue, Greeley, Colorado 80634, hereinafter referred to as "Operator," authorized to do business in the
State of Colorado , and the County of Weld, a body corporate and politic of the State of Colorado, by and
through its Board of County Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631
hereinafter referred to as "County."
WITNESSETH:
WHEREAS, Operator is the responsible party of the Location Assessment for Pipelines (LAP) permit
located on the following described property in the County of Weld, Colorado:
Located in Section 27, Township 5 North, Range 65 West
of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Operator has received conditional approval from the Director of the Oil and Gas Energy
Department for LAP23-0004, and
WHEREAS, the Operator facility will generate additional vehicles and heavy traffic directly associated
with LAP23-0004, for an extended period of time; and
WHEREAS, the County, and Operator are desirous of agreeing to terms involving regulation of
haul routes, traffic control, and road wear arising from such additionaltraffic.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant, and agree as follows:
Part I: SITE SPECIFIC PROVISIONS
A. Reserved
B. Haul/Travel Routes: Haul Route Roads are considered that length of roadway within 1/2 mile of
each access location and Right -of -Way (ROW) crossing of the pipeline.
C. Maintenance Requirements:
1.0 Off -Site Dust Control/Abatement: The Operator is required to provide dust abatement along affected
gravel Haul Route roads within 1/2 mile of each access location of the pipeline, as determined by the County.
County will determine the proportionate share of dust control to be paid by Operator. The amount and extent
of dust control measures will be determined by site -specific conditions at the time, as determined exclusively
by County personnel. The County reserves the right to install traffic counters on the driveway(s) of the
Operator's facility. The County will have sole responsibility for determination of the percentage of haul route
traffic on all affected roads.
2.0 Obligation to Maintain Current and Future Haul Routes: Operator will be financially responsible for
the excavation, repair, and patching of any damage on current or future haul route roads, which in the sole
DCP Operating Company LP — LAP23-0004 - RMCA23-0005
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opinion of County has been created by vehicle traffic to and from the Property. Should Operator's site activities
or vehicle circulation patterns change in the future so that County approves an alternate haul route, and all or
a significant portion of Operator's sourced traffic no longer utilizes the above -described haul route and instead
utilizes other portions of County roads, Operator shall cooperate with County in maintenance of said roads
which are included within the new haul route. The type and method of repair will be determined by the County
Engineer or his representative. Repairs shall commence within 48 hours of notification by the County for any
roadway damage that exposes the driving public to adverse or unsafe driving conditions. All other repairs shall
commence within thirty (30) days of receipt of Weld County's written notice.
2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project traffic
that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection, notify Operator of such Significant
Damage. Operator shall identify the repair required and shall consult with County on the extent,
type, timing, materials and quality of repair (i.e. temporary versus permanent) within twenty-four
(24) hours after receipt of such notice and shall commence such repair within 48 hours after receipt
of such notice. If Operator identifies Significant Damage prior to receiving notice thereof from
County, Operator 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).
2.2 In County's sole discretion, County may undertake the repairs and/or improvements. Operator's
payment for its Proportionate Share of the road repairs/improvements will be calculated as
described in this Agreement.
3.0 Proportionate Share of Road Maintenance Responsibilities:
3.1 Operator shall pay its Proportionate Share of costs of dust control/abatement, paving, repairs,
maintenance, improvements, or future road replacement of any particular Haul Route Road.
Operator's Proportionate Share shall be based upon the percentage of traffic on the road that is
attributable to Operator's facility. County personnel will determine the percentage based on then
current Equivalent Single Axle Load (ESAL) Counts. Operator shall not be responsible for traffic
that is not sourced from the Operator's facility.
3.2 The County shall notify Operator of County's preliminary determination and assessment of
Operator's proportionate share of costs. Prior to County's fmal determination and assessment,
County shall provide Operator with a reasonable opportunity to review, comment upon and
supplement County's data, collection methodology, and determinations. The County shall review
and consider Operator's input prior to making a final determination and assessment. The County
shall have sole responsibility for determination of Operator's proportionate share of costs.
Part II: General Provisions
A. General Requirements:
1.0 Permits. Operator must still apply for and abide by the terms of any necessary right-of-way permits,
grading permits, and building permits. No work may occur in the County's right-of-way without a County
issued right-of-way permit and access permit.
1.1
Access Permits. Operator shall not use any access onto any County road unless and until an access
permit has been issued by the Department of Planning Services. Planning Services may condition
the issuance of an updated access permit on the amendment of this Agreement if the updated access
permit authorizes the use of an additional access point, or if there is a change in use of the current
access point, as permitted by Article XIV of Chapter 8 of the Weld County Code.
DCP Operating Company LP — LAP23-0004 - RMCA23-0005
Page 2 of 6
1.2 Right -of -Way Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work occurring
within County ROW requires a ROW permit issued by the Department of Public Works. No work
shall occur without said ROW permit.
1.3 Transport Permits. Per Article XV of Chapter 8 of the Weld County Code, a Weld County Transport
Permit is required for Extra -legal vehicles using Weld County roadways to ensure the operation and
movement of Extra -legal Vehicles and Loads occurs in a safe and efficient manner.
2.0 Release of Liability: Operator 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 the pipeline, 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.
3.0 Liability for Damage to Road. Operator shall be financially responsible for any and all damage caused
to any Weld County Road as a result of the installation, use, or maintenance of the pipeline through the
County's rights -of -way, without regard to the negligence, or lack thereof, of Operator or its agents. This
provision shall survive Termination of this Agreement pursuant to Section B.2.0, below, and shall be of no
further force and effect ten years after mutual execution of this Agreement.
B. Violations of Agreement and Remedies
1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Operator has violated any of the
terms of this Agreement, County shall so notify Operator and shall state with specificity the facts and
circumstances which County believes constitute the violation. Operator shall have thirty (30) days within
which to either cure the violation or demonstrate compliance. Thereafter, County may seek any remedy
described in this Agreement or otherwise provided by law.
2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of
the following events:
2.1 Cessation of all Permit Related Activities: Termination of this Agreement shall occur upon
Operator's complete cessation of all activities permitted by the LAP. A partial cessation of
activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a
partial release constitute a Termination. Unless informed in writing by the Operator of cessation
of activities, and verified by the County, cessation shall be presumed if the County determines that
the LAP has been inactive for three (3) years.
2.2 Execution of Replacement Agreement: This Agreement shall terminate following County's
execution of a new Improvements Agreement with a new Operator or Operator who has purchased
the Property or has assumed the operation of the business permitted by the LAP, and intends to
make use of the rights and privileges available to it through the then existing LAP.
2.3 Rescission of LAP: This Agreement shall terminate following County's rescission of Operator's
LAP, except that the Operator shall only be released from this Agreement after the successful
completion of all improvements required under this Agreement.
2.4 Completion of Construction: This Agreement shall terminate following Operator's completion of
construction of the facilities authorized by the underlying LAP. Operator shall notify the County
of completion.
DCP Operating Company LP — LAP23-0004 - RMCA23-0005
Page 3 of 6
3.0 Rescission of LAP: Operator acknowledges that failure to comply with the material terms of this
Agreement constitutes cause to rescind the LAP, and County may exercise this option in its sole reasonable
discretion by proceeding with rescission under the then current provisions of the Weld County Code.
4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this Agreement,
County may seek relief in law or equity by filing an action in the Weld District Court.
C. Miscellaneous Provisions.
1.0 Successors and Assigns:
1.1 Operator may not delegate, transfer, or assign this Agreement in whole or in part, without the prior
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 such case, Operator's release of its obligations shall be accomplished by County's execution
of a new Improvements Agreement with the successor owner of the property.
1.2 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 all roads affected by this Agreement.
2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without
such provision, to the extent that this Agreement is then capable of execution within the original intent of the
parties.
3.0 Governmental Immunity: No term or condition of this agreement shall be construed or interpreted as
a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the
Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended.
4.0 No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the enforcement
of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be
strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any
claim or right of action whatsoever by any other person or entity not included in this Agreement. It is the
express intention of the undersigned parties that any person or entity, other than the undersigned parties,
receiving services or benefits under this Agreement shall be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject matter
contained in this Agreement. This instrument supersedes all prior negotiations, representations, and
understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement
may be changed or supplemented only by a written instrument signed by both parties.
6.0 Board of County Commissioners of Weld County Approval: This Agreement shall not be valid until
it has been approved by the Board of County Commissioners of Weld County, Colorado, or its designee.
7.0 Choice of Law/Jurisdiction: Colorado law, and rules and regulations established pursuant thereto, shall
be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or
incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void.
In the event of a legal dispute between the parties, Operator agrees that the Weld County District Court shall
have exclusive jurisdiction to resolve said dispute.
8.0 Release of Liability. Operator 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
DCP Operating Company LP — LAP23-0004 - RMCA23-0005
Page 4 of 6
caused by, arising from, or on account of the design and construction of improvements, and pay any and all
judgments rendered against the County on account of any such suit, action or claim, and notwithstanding
Section 7.0 above, together with all reasonable expenses and attorney fees incurred by County in defending
such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of
the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from
the intentional torts or the gross negligence of the County or its employees while acting within the scope of
their employment. All contractors and other employees engaged in construction of the improvements shall
maintain adequate worker's compensation insurance and public liability insurance coverage and shall operate
in strict accordance with the laws and regulations of the State of Colorado governing occupational safety and
health.
9.0 Attorneys Fees/Legal Costs: In the event of a dispute between County and Contract Professional,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney
fees and/or legal costs incurred by or on its own behalf.
10.0 Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
11.0 Authority to Sign: Each person signing this Agreement, and associated Exhibits, represents and
warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each
party represents and warrants to the other that the execution and delivery of the Agreement and the performance
of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal
agreement binding on such party and enforceable in accordance with its terms. If requested by the County,
Operator shall provide the County with proof of Operator's authority to enter into this Agreement within five
(5) days of receiving such request.
12.0 Acknowledgment. County and Operator acknowledge that each has read this Agreement, understands
it, and agrees to be bound by its terms. Both parties further agree that this Agreement, with the attached or
incorporated Exhibits, is the complete and exclusive statement of agreement between the parties and
supersedes all proposals or prior agreements, oral or written, and any other communications between the parties
relating to the subject matter of this Agreement.
13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential conflict
between any term in this Agreement and the Resolution of the Board of County Commissioners approving the
underlying land use permit, the provisions of the Board's Resolution shall control. In the event of a discrepancy
between this agreement and the Weld County Code in effect at the time of the agreement, the terms of the
Weld County Code shall control.
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OPERATOR: DCP Operating Company LP
By: � �,/ Date: �l ,� aZj .Z -3
Name: p6,, -/c ?
Title:
STATE OF COLORADO
ss.
County of Weld
The foregoing instrument was acknowledged before me thiss day of r ` 1a1R`C ,
2023 , by 1.-2!A, 1 5 0. 4 aloe 1 oc K
WI
LORI ' " •
Notary Public
State of Colorado
Notary ID # 20054008501
My Commission Expires 03-02-2025
4044:t
Notary Public
WELD COUNTY:
ddritA1
ATTEST
: v• J ..0D•ok.
Weld • Clerk to the Bo . rd
BY:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
DCP Operating Company LP — LAP23-0004 - RMCA23-0005
Page 6 of 6
MAR 2 2 2323
O2ao& - a.1,3 7
Contract Form
New Contract Request
Entity Information
Entity Name*
DCP OPERATING COMPANY LP
Entity ID'
00O040422
❑ New Entity?
Contract Name. Contract ID
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT 6775
DCP OPERATING COMPANY LP LAP23-0004
Contract Status
CTB REVIEW
Contract Lead*
JTRUJILLOMARTINEZ
Contract Lead Email
jtrujiilomartinez@weldgov.c
orn
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description*
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT DCP OPERATING COMPANY LP LAP23-0004 NO COLLATERAL
REQUIRED
Contract Description 2
Contract Type.
AGREEMENT
Amount.
$0.00
Renewable
NO
Department
PLANNING
Department Email
CM -Planning ,..'weldgov.com
Department Head Email
CM -Planning- Does Contract require Purchasing Dept. to be included?
DeptHead0weldgov.com NO
Requested BOCC Agenda
Date
03/22/2023
Due Date
03/152023
Will a work session with BOCC be required?'
NO
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COU NTYATTO RN EYOWELDG
OV.COM
If this is a renewal enter previous Contract ID
If this is part of a NSA enter MSA Contract ID
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
OnBase
Contra�
Effective Date
Review Date •
03/22,2024
Renewal Date
Termination Notice Period
Committed Delivery Date
Expiration Date*
03,22/2020
Contact Information.
Contact Info
Contact Name
Purchasing
Approval Process
Department Head
TOM PARKA JR.
DH Approved Date
03,,16/2023
Final Approval
6OCC Approved
BOCC Signed Date
MCC Agenda Date
03/22/2023
Originator
JTRUJILLOMARTINEZ
Contact Type Contact Email Contact Phone 1 Contact Phone 2
Finance Approver
CHERYL PATTELL!
Purchasing Approved Date
Legal Counsel
BRUCE BARKER
Finance Approved Date Legal Counsel Approved Date
03i16,'2023 03:16h2023
Tyler Ref #
AG 032223
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