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Home My WebLink About20211143.tiff/p -#<-/7/$, BOARD OF COUNTY COMMISSIONERS PASS AROUND REVIEW PASS AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement for: Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 DEPARTMENT: Public Works DATE: April 20, 2021 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the problem/issue: The Department of Public Works received a request from the applicant, Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM, requesting that the Board of County Commissioners consider approving the Road Maintenance During Construction Agreement for (USR20-0036). No collateral is required with this agreement. Weld County Public Works, Planning Services 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 Use by Special Review Permit Resolution, as signed by the Board of County Commissioners. 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 Public Works, Planning Services and the County Attorney's Office are recommending approval of the Road Maintenance Agreement According To Policy for USR20-0036, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Recommendation Perry L. Buck Mike Freeman Scott K. James, Pro-Tem Steve Moreno, Chair Lori Saine Schedule Work Session Other/Comments: (! w(D //-SrtAiTLfTR), PL(KR/MW)/ e:2- A-02-711 2021-1143 ROAD MAINTENANCE AGREEMENT ACCORDING TO REQUIREMENTS DURING THE CONSTRUCTION PERIOD Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 THIS AGREEMENT is made this 14 TIA day of A P(R i L , 202 i , by and between Cactus Hill Ranch Company, 38990 State Highway 257, Fort Collins, Colorado 80524, c/o Matt Schilz, Public Radio for the Front Range / KRFCFM, 619 South College Avenue #2, Fort Collins, Colorado 80524, hereinafter referred to as "Property Owner," 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 Owner is the owner of the following described property in the County of Weld, Colorado: Part of the SE1/4 of Section 17, Township 7 North, Range 67 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner has received Board of County Commissioner approval of USR20- 0036, and WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic directly associated with USR20-0036, for an extended period of time; and WHEREAS, the County, and Property Owner 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: The Property Owner shall be financially responsible for its proportional share of the associated costs for maintaining and/or improving designated haul/travel routes. 1.0 Haul Routes: The following roads are designated as haul/travel routes for the Property: 1) East and west along CR 80 between approved site access and Highway 257. 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 80 remain on paved roadways for further dispersal. Any County roads used by traffic associated with USR20-0036 may become part of the established haul/travel 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. Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 - RMCA21-0006 Page 1 of 6 2a/ -1�¢3 4.0 Temporary Deviations: In unusual or rare occasions, if projects mandate deviation from the abovementioned haul/travel route for a limited period (six months or less), Weld County Public Works may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved county roads whenever possible. A deviation from the established haul/travel 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/travel routes designated herein, and provide notice to the Property Owner. 5.0 Haul Route Signage: Property Owner 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. C. Maintenance Requirements: 1.0 Obligation to Maintain Current and Future Haul Routes: Property Owner will be financially responsible for the excavation, repair, and patching of any damage on current or future haul route roads, which in the sole opinion of County has been created by vehicle traffic to and from the Property. Should Property Owner'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 Property Owner's sourced traffic no longer utilizes the abovedescribed haul route and instead utilizes other portions of County roads, Property Owner 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. 1.1 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 Property Owner of such Significant Damage. Property Owner 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 fortyeight (48) hours after receipt of such notice. If Property Owner identifies Significant Damage prior to receiving notice thereof from County, Property Owner 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). 1.2 In County's sole discretion, County may undertake the repairs and/or improvements. Property Owner's payment for its Proportionate Share of the road repairs/improvements will be calculated as described in this Agreement. 2.0 Proportionate Share of Road Maintenance Responsibilities: 2.1 Property Owner shall pay its Proportionate Share of costs of dust control/abatement, paving, repairs, or maintenance of any particular Haul Route Road. Property Owner's Proportionate Share shall be based upon the percentage of traffic on the road that is attributable to Property Owner's facility. County personnel will determine the percentage based on then current Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 — RMCA21-0006 Page 2 of 6 Equivalent Single Axle Load (ESAL) Counts. Property Owner shall not be responsible for traffic that is not sourced from the Property Owner's facility. 2.2 The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportionate share of costs. Prior to County's final determination and assessment, County shall provide Property Owner with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Owner's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of Property Owner's proportionate share of costs. Part II: GENERAL PROVISIONS A. General Requirements: 1.0 Permits: Property Owner 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: 1.1 Access Permits: Property Owner shall not use any access onto any County road unless and until an access permit has been issued by the Department of Public Works. Public Works 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. 1.2 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. 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. Property Owner 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 site specific Use associated with USR20-0036, 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. Property Owner shall be financially responsible for any and all damage caused to any Weld County Road as a result of the design and construction of the site specific Use associated with USR20-0063, without regard to the negligence, or lack thereof, of Property Owner 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 Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 — RMCA21-0006 Page 3 of 6 1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Property Owner has violated any of the terms of this Agreement, County shall so notify Property Owner and shall state with specificity the facts and circumstances which County believes constitute the violation. Property Owner 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 Property Owner's complete cessation of all activities permitted by the USR. 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 Property Owner of cessation of activities, and verified by the County, cessation shall be presumed if the County determines that the USR 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 Property Owner or Operator who has purchased the Property or has assumed the operation of the business permitted by the USR, and intends to make use of the rights and privileges available to it through the then existing USR. 2.3 Revocation of USR: This Agreement shall terminate following County's revocation of Property Owner's USR, except that the Property Owner 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 Property Owner's completion of construction of the facilities authorized by the underlying USR. Property Owner shall notify the County of completion. 3.0 Revocation of USR: Property Owner acknowledges that failure to comply with the material terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option in its sole reasonable discretion by proceeding with revocation 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: This Agreement may not be delegated, transferred or assigned in whole or in part by Property Owner without the express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. Property Owner's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with the successor owner of the property. Consent to a delegation or an assignment will not be unreasonably withheld or delayed by County. 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 the roads affected by this Agreement. All of the terms and conditions set forth in this Agreement shall be binding upon the heirs, executors, Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 - RMCA21-0006 Page 4 of 6 personal representatives, successors and assigns of Property Owner, and upon recording by the County, shall be deemed a covenant running with the land herein described. 2.0 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. 3.0 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. 4.0 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. 5.0 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. 6.0 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, Property Owner agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 7.0 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. o z v • o an o • a: ABA 0 N�� m ~r- e NNo mN a Ire 8.0 Attorney's 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. 9.0 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. 10.0 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 Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 - RMCA21-0006 Page 5 of 6 requested by the County, Property Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement within five (5) days of receiving such request. Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 - RMCA21-0006 Page 6 of 6 PROPERTY OWNER: Public Radio for the Front Range / KRFCFM By: Date 1!- 14 - Z0 Zl Name: III PFTT 5 C -t4 I L a Title: E r-► + N c' 2 STATE OF COLORADO SS. County of Weld The foregoing instrument was acknowledged before me this N11-1 day of ]prI t , 202 2.1, by Ma SC' in; i 2 WITNESS my hand and official seal. MIRANDA YARDLEY NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20194033761 MY COMMISSION EXPIRES 0910512023 i otary'ublic WELD COUNTY: ATTEST: Weld you r ty Clerk to the Bo BY BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO teve Moreno, Chair APR 2 8 2021 Cactus Hill Ranch Company c/o Public Radio for the Front Range / KRFCFM — USR20-0036 - RMCA21-0006 Page 7 of 6 02441 "//,3 Contract Form Entity Information New Contract Request Entity Name* Entity ID* PUBLIC RADIO FOR THE FRONT RANGE 00043729 (KRFCFM) Contract Name* ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT USR20-0036 CACTUS HILL RANCH COMPANY C O PUBLIC RADIO FOR THE FRONT RANGE (KRFCFM) Contract Status CTB REVIEW ❑ New Entity? Contract ID 4714 Contract Lead* JTRUJILLOMARTINEZ Contract Lead Email jtrujilIomartinezfPweldgov.c om Parent Contract ID Requires Board Approval YES Department Project # Contract Description* ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT USR20-0036 CACTUS HILL RANCH COMPANY C PUBLIC RADIO FOR THE FRONT RANGE (KRFCFM) NO COLLATERAL REQUIRED Contract Description 2 Contract Type* AGREEMENT Amount* $0.00 Renewable* NO Automatic Renewal Grant IGA Department PUBLIC WORKS Department Email CM- PublicWorks:? weldgov.com Department Head Email CM-PublicWorks- DeptheadgweIdgov.com County Attorney BOB CHOATE County Attorney Email BCHOATECO. WELD.CO. U S Requested BQCC Agenda Date* 04;26,2021 Due Date 04'24:'2021 Will a work session with BOCC 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 MSA 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 Contract Dates Effective Date Review Date* 04;"28:2022 Renewal Date Termination Notice Period Date Expiration Date's 04 28,2023 Contact Information Contact Info Contact Name Purchasing Purchasing Approver CONSENT Approval Process Department Head JAY MCDONALD DH Approved Date 04)22)2021 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda. Date 04)28)2021 Originator JTRUJILLOMARTINEZ Contact Type Contact Email Finance Approver CONSENT Contact Phone I Purchasing Approved Date 04;2212021 Finance Approved Date 04.=`22,'2021 Tyler Ref # AG 042821 Legal Counsel CONSENT Contact Phone 2 Legal Counsel Approved Date 04)22:2021 Hello