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Home My WebLink About20221674.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance Agreement for: Jalisco International, Inc. —AP22-00135 DEPARTMENT: Planning Services DATE: May 10, 2022 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the problem/issue: The Department of Planning Services received a request from the applicant, Jalisco International, Inc., requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for (AP22-00135). No collateral is required with this agreement. Weld County Planning Services, Public Works, 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 Access Permit, as issued by the Department of Planning Services. 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 AP22-00135, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Schedule Rec• endation Work Session Other/Comments: Perry L. Buck Mike Freeman, Pro-Tem Scott K. James, Chair Steve Moreno Lori Saine - O2 0Z co: $(.1.6,(-601b) �,/s-ate 2022-1674 g g--boII ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Jalisco International, Inc. — AP22-00135 11114114,40, THIS AGREEMENT is made this 5th day of May, 2022, by and between Jalisco International, Inc, a corporation organized under the laws of the State of Colorado, whose address is 6663 Colorado Boulevard, Commerce City, Colorado 80022, hereinafter referred to as "Property Lessee," 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, Property Lessee is the lessee of the following described property in the County of Weld, Colorado: NW 1/4 of Section 20 and part of the NE 1/4 of Section 20, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Lessee has received a Construction Material Special (111) Operation Reclamation Permit from the Division of Reclamation, Mining, and Safety of the State of Colorado, and WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly associated with AP22-00135, for an extended period of time, and WHEREAS, Property Lessee has received the Department of Planning Services conditional approval of AP22-00135, and WHEREAS, Property Lessee acknowledges that the fmal approval of AP22-00135 is conditional upon Property Lessee's funding of road maintenance described in this Agreement. 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. Haul Routes: The Property Lessee shall be financially responsible for its proportional share of the County's costs associated with maintaining and/or improving designated haul routes. 1.0 Haul Routes. The following roads are designated as haul routes for the Property: 1) East and west along CR 44 between Highway 60 and Highway 85. 2.0 Haul trucks shall enter and exit the site at the approved access on CR 44 and remain on paved road for further dispersal. Any County roads used by traffic associated with AP22-00135 may become part of the established haul routes. 3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle and axle configurations unless overweight permits have been applied for and granted. Jalisco International, Inc. — AP22-00135 — RMA22-0008 Page 1 of 7 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the above -mentioned haul route for a limited period (six months or less), Weld County Planning Services may authorize, in writing, the deviation. In that circumstance, haul vehicles will utilize paved county roads whenever possible. A deviation from the established haul route lasting more than six (6) months or requests for one (1) or more deviations within a 12 -month period shall authorize the County to change the haul routes designated herein and provide notice to the Property Lessee. 5.0 Haul Route Signage. Property Lessee shall install travel route signs, if applicable, as per Manual of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility and which clearly depict County approved travel routes. 6.0 No Deviation from Permitted Haul Routes. Except as authorized by the Board pursuant to this Agreement, no use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. B. County Road 44 Overlay 1.0 Proportional Share. Property Lessee shall pay a proportional share of the material cost of the future overlay to County Road 44, upon the completion of the mining project, based on the Property Lessee's share of AADT Counts using the current data on the haul route in the implementation of the applicable improvements. County personnel will determine the proportional share percentage based on the most current Equivalent Single Axel Load (ESAL) Counts. County personal, alone, shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. In order to accurately determine the percentage of Property Lessee's haul traffic, the County reserves the right to install traffic counters on the driveway of the AP22-00135 facility. Property Lessee shall not be responsible for traffic that is not sourced from the Property Lessee's facility. Future improvements will be subject to Federal, State, or County regulations in place at the time the improvement project is initiated. 1) Property Lessee shall be responsible for a proportional share of $37,966.50 based on the assumption of 250 round trips for semi -trucks per hauling day with 185 days of hauling. 2.0 Payment. Property Lessee shall pay their proportional share of the County Road 44 overlay no later than 60 days past August 31, 2023. C. Maintenance Requirements: 1.0 Off -site recurring maintenance, if applicable, as required: 2.0 Repair. Property Lessee shall be fmancially responsible for its proportional share of excavation, patching, and pavement repair on designated haul/travel routes. The amount and extent of repair and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. 3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel 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 Property Lessee of such Significant Damage. Property Lessee 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 forty-eight (48) hours after receipt of such notice. If Property Lessee identifies Significant Damage prior to receiving notice thereof from County, Jalisco International, Inc. — AP22-00135 — RMA22-0008 Page 2 of 7 Property Lessee 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). 4.0 Repair of Road: On or before December 31 of the calendar year in which County staff has determined through site analysis and/or pavement testing that a particular haul/travel route road portion will require paving measures in order to protect the public health, safety, and welfare, and the County has budgeted sufficient funds for the following calendar year to pay its share of the Off -Site Improvement/Repair Costs, County shall notify Property Lessee in writing that the Off -Site Improvements/Repairs shall be undertaken. 4.1 In County's sole discretion, County may undertake the repairs and/or improvements. Property Lessee's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in this Agreement. Property Lessee will be invoiced accordingly for those proportional share costs. 5.0 Calculation of Property Lessee's Proportional Share of Costs. The County shall notify Property Lessee of County's preliminary determination and assessment of Property Lessee's proportional share of costs of maintenance, repair, or improvements to Property Lessee's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide Property Lessee with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Lessee's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of Property Lessee's proportional share of costs. Property Lessee agrees to pay such proportional share of costs within 30 days of receiving an invoice from County. 6.0 Annual Road Inspection. NA 7.0 Notification. The County shall notify Property Lessee of County's preliminary determination and assessment of Property Lessee's proportionate share of costs of maintenance, repair, or improvements to Property Lessee's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide Property Lessee with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Lessee's input prior to making a final determination and assessment. PART II: GENERAL PROVISIONS A. Permits: Property Lessee is required to apply for and receive all permits required by the County or any other applicable local, State, or federal permit, including but not limited to: 1.0 Access Permits. Property Lessee 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. 2.0 Right -of -Way (ROW) 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. Jalisco International, Inc. — AP22-00135 — RMA22-0008 Page 3 of 7 3.0 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. B. Enforcement and Remedies: 1.0 Violation of Terms of Agreement. If in County's opinion, Property Lessee has violated any of the terms of this Agreement, County shall notify Property Lessee 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 Lessee 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 the violation is continuing, County may consider Property Lessee to be in breach of this Agreement. 2.0 Remedies for Breach by Property Lessee. In the event that County determines that Property Lessee has violated the terms of this Agreement, and has failed to correct said violation, County may exercise any or all of the following remedies, or any other remedy available in law or equity. 2.1 Withholding Permits. County may "lock" any or all lots within the Property, which precludes the continued issuance of building permits, zoning permits, septic permits, or any other permit issued by any department of the County. 2.2 Court Action. County may seek relief in law or equity by filing an action in the Weld District Court or Federal District Court for the District of Colorado, except that no such civil action or order shall be necessary to access collateral for the purpose of completing improvements as described above. 2.3 Revocation of Access Permit. Property Lessee acknowledges that failure to comply with the terms of this Agreement constitutes cause to revoke the Access Permit, and County may exercise this option in its sole discretion by proceeding with revocation under the then current provisions of the Weld County Code. 3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following events: 3.1 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Property Lessee's complete cessation of all activities permitted by the State 111 Permit including any clean up or restoration required. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release/vacation constitute a Termination. Unless informed in writing by the Property Lessee of cessation of activities, and verified by the County, cessation shall only be presumed if the County determines that the Use has been inactive for three (3) years. 3.2 Execution of Replacement Agreement. This Agreement shall terminate following County's execution of a new Improvements Agreement with a new Property Lessee or owner who has purchased the Property or has assumed the operation of the business permitted by the County, and intends to make use of the rights and privileges available to it through the then existing Access Permit. 3.3 Revocation of Temporary Use. This Agreement shall terminate following County's revocation of Property Lessee's Temporary Use, except that the Property Lessee shall only be released from this Agreement after the successful completion of any required repairs. Jalisco International, Inc. — AP22-00135 — RMA22-0008 Page 4 of 7 D. General Provisions: 1.0 Successors and Assigns. 1.1 Property Lessee 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, Property Lessee'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 contract 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. 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 in this Agreement shall give or allow any claim or right of action 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 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, the parties agree that the Weld County District Court or Federal District Court for the District of Colorado shall have exclusive jurisdiction to resolve said dispute. 8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Lessee, 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. Jalisco International, Inc. — AP22-00135 — RMA22-0008 Page 5 of 7 9.0 Release of Liability. Property Lessee 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 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. 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 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 Lessee shall provide the County with proof of Property Lessee's authority to enter into this Agreement within five (5) days of receiving such request. 12.0 Acknowledgment. County and Property Lessee 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. Jalisco International, Inc. — AP22-00135 — RMA22-0008 Page 6 of 7 PROPE By: Name: Richard Ledez Title: President STATE OF COLORADO County of Weld International, Inc. Date: May 5, 2022 SS. The foregoing instrument was acknowledged before me this 5`" day of May, 2022, by VAC\ C \ e C C CV5k-CVA,On WITNESS my hand and official seal. KACIE SANCHEZ CASTANON NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20=4000207 MY COMMISSION EXPIRES JANUARY 04, 2028 WELD COUNTY: G� _ ATTEST: U�eN v'• `r��'&e. Weld Co JClerk to the Board WE D COUNTY, COLORADO Jlotary Public BY: Deputy Cler : the : oard i BOARD OF COUNTY COMMISSIONERS ott K. James, Chair JUN 1 5 2022 Jalisco International, Inc. — AP22-00135 - RMA22-0008 Page 7 of 7 o2o.2a -/67y Contract Form New Contract Request Information Entity Name* JALISCO INTERNATIONAL Entity ID* Ca00020583 New Entity? Contract Name* Contract ID ROAD MAINTENANCE AGREEMENT JALISCO INTERNATIONAL 5816 INC AP22-00135 Contract Status CTB REVIEW Contract Lead* JTRUJI LLOMARTI N EZ Contract Lead Email jtrujillomartinez@weldgov.c om ID Requires Board Approval YES Department Project # Contract Description* ROAD MAINTENANCE AGREEMENT JALISCO INTERNATIONAL INC AP22-001 35 NO COLLATERAL REQUIRED Contract Description 2 Contract Type AGREEMENT Amount* $ 0.00 Renewable* NO Automatic Renewal Department PLANNING Department Email CM-Planning+waeldgov.com Department H Email CM-Planning- DeptHeadv"eldgov.com County Attorney GENERAL COUNTY A 1 i ORNEY EMAIL County Attorney Email CM- COU NTYA I I O RN EY"PWELDG OV.COM Requested BOCC Agenda Date* 05!18,==`2022 Due Date 05/14/2022 wll a work session with B©CC be required?* NO Does Contract require Purchasing Dept. to be included? NO If this is a renewal enter previous Contract ID If this is part of a ?ASA 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 Conti Effective Date Review Date* 05/18x`2023 Renewal Date Termination Notice Period Committed Delivery Date Expiration Date* 05.`1 1:'2024 Contact Information Contact Info Contact Name Contact Type Nil -chasing Purchasing + r cI Approval Process Department Head TOM PARK° JR. DH Approved Date 05/18,2422 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 06/15 21122 Originator JTRUJILLOMARTINEZ Purchasing Finance Approver CHERYL PA I f ELLI Contact Phone 1 Contact Phone 2 Legal Counsel BRUCE BARKER Finance Approved Date L Counsel Approved Date 05'18 2022 Tyler Ref it AG 061522 8;2022 Hello