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Home My WebLink About20211005.tiffBOARD OF COUNTY COMMISSIONERS PASS AROUND REVIEW PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement for: YN Water Storage LLC — AP21-00133 DEPARTMENT: Public Works DATE: March 30, 2021 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the problemlissue: The Department of Public Works received a request from the applicant, YN Water Storage LLC, requesting that the Board of County Commissioners consider approving the Road Maintenance During Construction Agreement for (AP21-00133). 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, etcof 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 AP21-00133, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Schedule Recommendation Work Session Other/Comments: Perry L. Buck Mike Freeman yY\F Scott K. James, Pro -Tern Steve Moreno, Chair_ Lori Saine PWCO"t/3Trmf-rA(TL) 04115/21 Gi 2021-1005 ��bb77 ROAD MAINTENANCE AGREEMENT ACCORDING TO REQUIREMENTS DURING THE CONSTRUCTION PERIOD YN Water Storage LLC — AP21-00133 THIS AGREEMENT is made this Zb1-wh day of CAVL\, 2021, by and between YN Water Storage LLC, a limited liability company organized under the laws of the State of (' , whose address is 8547 E. Arapahoe Road, Suite J #249, Greenwood Village, Colorado 80112, 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: Lot A of Recorded Exemption RECX19-0114; being a part of the SWl/4 of Section 21, Township 4 North, Range 61 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner has received the Department of Public Works conditional approval of AP21-00133, and WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic directly associated with AP21-00133, 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 additional traffic. 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) North and south along CR 89 between approved site access and Highway 34. 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 89 and travel north -south to the nearest paved road for further dispersal. Any County roads used by traffic associated with AP21-00133 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. 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the above -mentioned haul/travel route for a limited period (six months or less), Weld County Public Works may YN Water Storage LLC — AP21-00133 — RMCA21-0004 Page 1 of 6 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 Off -Site Dust Control/Abatement: The Property Owner is required to provide dust abatement along affected haul route roads, as determined by the County. County will determine the proportionate share of dust control to be paid by Property Owner. 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 Property Owner'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: 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 above -described 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. 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 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 o 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 Owner identifies Significant Damage prior to receiving notice thereof from County, Property Owner may commence repair of such o •-= Significant Damage and shall concurrently notify County of the extent, type, timing, materials, �U and quality of repair (i.e. temporary versus permanent). 2.2 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. rn� 3.0 Proportionate Share of Road Maintenance Responsibilities: i O m 3.1 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 N o a YN Water Storage LLC — AP21-00133 — RMCA21-0004 rte= Page 2 of 6 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 Equivalent Single Axle Load (ESAL) Counts. Property Owner shall not be responsible for traffic that is not sourced from the Property Owner's facility. 3.2 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 AP21-00133, 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 �-i. 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 mm3; caused to any Weld County Road as a result of the design and construction of the site specific Use associated with AP21-00133, 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 oc further force and effect ten years after mutual execution of this Agreement. nEct as " B. Violations of Agreement and Remedies ma. �� NE NT YN Water Storage LLC — AP21-00133 — RMCA21-0004 a® --_ 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 Grading Permit. 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. 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. 2.4 Completion of Construction: This Agreement shall terminate following Property Owner's completion of construction of the facilities authorized by the underlying Grading Permit. Property Owner shall notify the County of completion. 3.0 Revocation of Access Permit: Property Owner acknowledges that failure to comply with the material terms of this Agreement constitutes cause to revoke the Access Permit, 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 Defmitions: 1.1 All references in this Agreement to "County Engineer" shall refer to the any individual or individuals appointed by the County Engineer to act on his/her behalf. • 1.2 All references to "Haul Routes" include identified travel routes for subdivisions; references to "haul vehicles" include subdivision vehicular traffic, as applicable. o=z 1.3 All references to "Property Owner" shall include any individual or entity, including an "Operator", c ■ who is acts on behalf of the Property Owner regarding this Agreement. t 2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in a3 part by Property Owner without the express written consent of County and the written agreement of the party w�`- to whom the obligations under this Agreement are assigned. Property Owner's release of its obligations shall o Y�� be accomplished by County's execution of a new Improvements Agreement with the successor owner of the -LL : 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 iM responsibility over the roads affected by this Agreement. All of the terms and conditions set forth in this dN� r � Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of . b �' NE �NY`LU a a L YN Water Storage LLC — AP21-00133 — RMCA21-0004 1-a�� Page 4 of 6 Property Owner, and upon recording by the County, shall be deemed a covenant running with the land herein described. 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, Property Owner agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 8.0 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. 9.0 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. 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 0 warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each m 3 party represents and warrants to the other that the execution and delivery of the Agreement and the performance mw� of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal o'.a �. agreement binding on such party and enforceable in accordance with its terms. If requested by the County, n" o s Property Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement •-ra within five (5) days of receiving such request. d�U Z B N�� aQ f.NY`� aa� YN Water Storage LLC — AP21-00133 — RMCA21-0004 Page 5 of 6 PROPERTY : Yl ter Storage LLC By: Date Name: ©511vtn r t� Title: STATE OF COLORADO ) ss. County of W td -Ar&p&HDC ) The foregoing instrument was acknowledged before me this j day ofV1arck, 202, by JOS u& a A-TtV WITNESS my hand and official seal. BRIANNA FOLCHERT NOTARY PUBLIC BATE OF COLORADO NOTARY ID 20174048584 MYCOMMISSION OrPIRES NOVEMBER 27.2021 WELD COUNTY: ATTE_S_TT/-�dj„ j W. 1p'6i Weld (l"ouirity Clerk to the Board 186 BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Moreno, Chair APR 0 7 2021 YN Water Storage LLC — AP21-00133 — RMCA21-0004 Page 6 of 6 New Contract Request Entity Information Entity Namet Entity ID * YN WATER STORAGE LLC p00043523 Contract Name * ROAD MAINTENACE AGREEMENT DURING CONSTRUCTION PERIOD AP21-001 33 YN WATER STORAGE LLC Contract Status CTB REVIEW ❑ New Entity? Contract ID 41519 Contract Lead* JTRUJILLOMARTINEZ Contract Lead Email jtrujillornartinez veldgov.c orn Parent Contract ID Requires Board Approval YES Department Project # Contract Description * ROAD MAINTENACE AGREEMENT DURING CONSTRUCTION PERIOD AP21-00133 YN WATER STORAGE LLC, NO COLLATERAL REQUIRED Contract Description 2 Contract Type Department AGREEMENT PUBLIC WORKS Amount Department Email $0.00 CM- PubI icWo rksweIdgov. cosy Renewable NO Department Head Email CM-Publi orks- Au. a tic Renewal De tHeadgveldgov..com Grant County Attorney BOB CHOATE IGA County Attorney Email BCHC ATE'a'CO.WELD.CO.US if this is a renewal enter previous Contract ID if this is part of a MSA enterMSA Contract ID Requested BOCC Aqenda Due Date Date* 0403/2021 04/0712021 Will a work session with 80CC be required?* NO Does Contract require Purchasing Dept. to be included? NO Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnRase Contract Dates Effective Date Review Date* Renewal Date 04/07/2022 Termination Notice Period Committed Delivery Date Expiration Date* 04/0712023 Contact Information Contact Info Contact Name Contact Type Purchasing Purchasing Approver CONSENT Approval Process Department I -lead JAY MCDONALD DH Approved Date 0401,/2021 Final Approval 8OCC Approved 8OCC Signed Date 8OCC Agenda Date 04/07/2021 Originator JTRUJILLOMARTINEZ Contact Email Contact Phone I Contact Phone 2 Purchasing Approved Date 04/01 /2021 Finance Approver CONSENT Finance Approved Date 04/01 /2021 Tyler Ref # AG 040721 Legal Counsel CONSENT Legal Counsel Approved Date 04f01?2021 Hello