HomeMy WebLinkAbout20191642.tiffh I Co
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent _Temring ,s4sancila REQUEST
RE: BOCC Agenda Item - Approve Road Maintenance Agreement (or:
Aka Energy Group, LLC — USIA 14-003 5
DEPARTMENT: Public Works DATE: April 10, 2019
PERSON REQUESTING: TisarJuanicorena
Brief description of the issue: *
The Department of Public Works identified a Road Maintenance Agreement that was signed by the applicant;
however, never recorded. Please note the, additional signing page with a relative disclaimer to aglow for Chair
signature and final recordation of said agreement. The Department of Public Works is requesting that the Board
of County Commissioners consider approving the Road Maintenance Agreement for Aka Energy Group, LLC —
U R14M035). No collateral is/was 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 broad 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 east for the Boa rd
1. Have CCC Nearing item be pLeed on the next av Uahb[e 2geSa as pzrt of t' e Consent Agenda.,,
2. Have tkds B CC He2noing Rem he pl ced en the next avaiLabie angenda. as part of the Regulzr Agenc112.
Remmmendnticn:
Option 1. The Departments of Public Works, Planning Services and the County Attorney's Office are
recommending approval of the Road Maintenance Agrreemneni According To Policy or USR = 4-003 5, and that this
item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Sean P. Conway
Mike Freeman, Pro -Tern
Scott K. James
Barbara Kirkmeyer, Chair
Steve Moreno
Approve
Recommendation
Schedule as Regular
BOCC Hearing Item Other/Comments:
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3rd November, 2014
Rich Hastings
Compliance Analyst & Construction Inspector
Weld County Public Works,
1111 H Street, P.O. Box 758
Greeley CO 80632
Re: Road Maintenance Agreement — USR14-0035
Dear Rich,
Enclosed is the signed and notarized Road Maintenance Agreement for Aka energy Group, LLC proposed
Speer Facility — USR14-0035.
Thank you for your time with this project and if you have any questions please do not hesitate to call
me.
Sincerely,
Julie Dossey /
Permitting and ROW Agent
(970) 759-7110
ROAD MAINTENANCE AGREEMENT
Aka Energy Group, LLC (USR14-0035)
THIS AGREEMENT is made this Y tay of Ofri I , 2019 , by and between Aka
Energy Group, LLC, a corporation organized under the laws of the State of Colorado, whose
address is 65 Mercado St., Ste. 250, Durango, CO 81301, hereinafter called "Applicant", 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, Aka Energy Group, LLC is the owner of real property described as the
W1/2 of SW1/4 of Section 31, Township 4 North, Range 65 West of the 6th P.M., Weld County,
CO (hereinafter "Property"); and
WHEREAS, County has approved land use permits for Mineral Resource Development
Facilities FOR OIL AND GAS SUPPORT AND SERVICE (Unmanned Compressor Station) for
the Applicant (the "Project") and
WHEREAS, the construction of the Applicant's permitted facilities will generate an
increase of heavy vehicle traffic and
WHEREAS, the existing County roads that serve the Applicant's permitted facilities may
require increased maintenance due to this increase of heavy vehicle traffic and
WHEREAS, the parties agree that the Applicant shall be responsible for maintenance and
repair of damages the Applicant's heavy vehicle traffic causes to County rights of way, including
the County Roads, and agrees to keep them open, passable and in a safe driving condition for
public use, during the initial construction phase and during any future USR14-0035 heavy
vehicle traffic activity, all as contemplated herein.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and
covenants contained herein, the parties hereto promise, covenant and agree as follows:
A. Haul Routes:
1.0 Established Haul Routes:
1.1
The County Roads identified as Haul Routes under this Road Maintenance
Agreement are CR's 38, 39 and 44, near the entrance to the facility on CR
38. Any County roads routinely utilized by Applicant's permitted facilities
haul traffic may become part of the established haul routes.
1.2 No haul vehicles may exceed CD0T required specifications for pounds per
axle.
1.3 In unusual or rare occasions, if particular projects mandate deviation from
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the above -mentioned haul route for a limited period of time (which is
defined in this Agreement as a period of not more than thirty days),
additional haul routes shall be established by County at the time that the
deviation is allowed. If County approves such deviation, haul vehicles will
utilize paved county roads whenever possible. A deviation from the
established Haul route lasting more than thirty (30) days or requests for two
or more deviations within a twelve month period shall be subject to the
terms of Section A.4.0. In the event that haul route traffic, in excess of 15%
of the daily facility haul vehicle trips, utilizes alternate haul routes for more
than thirty (30) days, the provisions of Section 4.0 of this Section A shall
be triggered.
3.0 No Deviation from Permitted Haul Routes: Except under the provisions provided
in Section A.1.3, no deviation in the use of any roads other than those specifically authorized for
use in this Agreement is permitted without the prior written amendment of this Agreement.
4.0 Effect of Future Changes to Haul Routes: In the event that County is requested
by Applicant or site operator to approve the use of an additional access, new haul route, or an
alternative haul route as a result of a change in Applicant's site activities and/or haul route
circulation patterns, and if the alternative or additional access or haul route utilizes any unpaved
portion of County roads, and if County determines that dust control or paving is required on the
unpaved portion of said haul route roads as a result of Applicant's use, Applicant agrees that dust
control or paving measures to protect the public health, safety, and welfare shall be instituted.
County will determine the cost of dust control and/or paving costs to be paid by Applicant based
upon the County's determination of the Applicant's responsibility for such work. County will
determine the proportionate share of dust control and/or paving costs to be paid by Applicant
based upon then current truck trip counts that identify traffic loading due to Applicant -sourced
traffic. The amount and extent of dust control and/or paving measures will be determined by
site -specific conditions at the time, as determined exclusively by County personnel.
B. County Road Maintenance Requirements:
1.0 Obligation to Maintain Current and Future Haul Routes: Applicant 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 hauling to and
from the Applicant's permitted facilities. County will determine the cost of repairs to be paid by
Applicant based upon the County's determination of the Applicant's responsibility for such
work. County will determine the proportionate share to be paid by Applicant based upon then
current truck trip counts that identify traffic loading due to Applicant -sourced traffic. Should
Applicant's site activities and/or should Applicant's haul route circulation patterns change in the
future so that County approves an alternate haul route, and all or a significant portion of
Applicant's sourced traffic no longer utilizes the above -described haul route and instead utilizes
other portions of County roads. Applicant's obligations set forth herein shall apply to 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 caused by Project traffic 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.
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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 Applicant of such Significant Damage.
Applicant 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 Applicant identifies Significant Damage prior to
receiving notice thereof from County, Applicant 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 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 route road portion will require due to Project traffic
paving measures in order to protect the public health, safety, and welfare,
County shall notify Applicant in writing that the improvements and/or
repairs shall be undertaken. Within ninety (90) days of its receipt of
County's notice of the need to undertake the road maintenance repairs
and/or improvements, Applicant shall submit Construction Plans and Cost
Estimates to County for review. Applicant shall have sole responsibility
for the completion of the repairs and/or improvements on or before
December 15 of the year following County's notice of the need for repairs.
1.3 In County's sole discretion, County may undertake the repairs and/or
improvements. In which case, County will invoice the Applicant for the
cost of said repairs and/or improvements, and the Applicant's payment
will be due within thirty (30) days of receipt of such invoice.
2.0 Dust Control/Abatement (If Applicable): The Applicant may be required to
provide dust abatement along affected Haul Route Roads approximately two to five times per
year, as determined by the County based upon the Project traffic. County will determine the
proportionate share of dust control and/or paving costs to be paid by Applicant based upon then
current Equivalent Single Axle Load (ESAL) Counts that identify traffic loading due to
Applicant sourced traffic. The amount and extent of dust control will be determined by site -
specific conditions at the time, as determined exclusively by County personnel.
3.0 Annual Road Inspection: County will conduct a road inspection annually with the
cooperation of Applicant. As a result of the annual inspection, County, in its sole discretion, shall
determine actual conditions and shall further determine what road
repair/improvement/maintenance work is to be performed during that construction season.
Notification to the Applicant of the required roadway repairs will be given as soon as the data
becomes available.
4.0 Future Road Replacement: At any time in the future, if in the opinion of County,
road damage due to Project traffic increases beyond the point that repair of damage cannot
maintain the road in a safe and usable condition, Applicant shall pay a proportionate share of the
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Carly Koppes, Clerk and Recorder, Weld County, CO
'NM WWI Mid 11111
cost of the entire project including engineering designs and construction plans based on the
Applicant's share of ESAL Counts using then current data on the haul route in the
implementation of the above -mentioned improvements. County personnel alone shall make all
determinations regarding the gathering of and use of traffic data when making decisions
regarding cost sharing. Notification to the Applicant of the required roadway replacements will
be given as soon as the data becomes available and typically takes place before the end of the
year prior to the start of the replacement project, as described in Section B.1.0 above.
C. General Requirements:
1.0 Release of Liability: Applicant and 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 said
design and construction of improvements completed by Applicant or its agents, 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. 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.
2.0 Successors and Assigns: This Agreement may not be delegated, transferred or
assigned in whole or in part by Applicant without the 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 the
event of sale of the Property, County may agree to release Applicant in whole or in part from
obligations under this Agreement. 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, personal representatives, successors and assigns of Applicant,
and upon recording by the County, shall be deemed a covenant running with the land herein
described.
3.0 County Engineer: 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.
4.0 Violation of Terms of Agreement: If in County's opinion, Applicant has violated
any of the terms of this Agreement, County shall notify Applicant of its belief that the
Agreement has been violated and shall state with specificity the facts and circumstances which
County believes constitute the violation. Applicant shall have thirty (30) days within which to
either cure the violation or demonstrate compliance. If, after thirty (30) days have elapsed,
County believes in good faith that there has been a violation of the terms of this Agreement,
County shall initiate proceedings to revoke the permit which is the subject matter of this
Agreement. Revocation of Applicant's land use permits, as it now exists or may, from time to
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Carly Koppes, Clerk and Recorder, Weld County, CO
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time, be amended is a remedy which County may impose. If Applicant does not perform as
outlined in this Agreement such non-performance will constitute a violation of Applicant's land
use permits granted by County, and County will take whatever remedial measures it deems
necessary, against Applicant. In addition to any other remedy available to the County in law or
equity, a failure to comply with this Agreement shall be considered grounds for setting a
probable cause hearing according to the procedures described in Section 2-4-40 of Weld County
Code.
D. Termination of Agreement:
1.0 Termination Event: This Agreement shall terminate upon the earliest of the
following events:
1.1 Cessation of all Permit Related Activities. Termination of this Agreement
shall occur upon Operator's complete cessation of all permitted activities. 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. Operator shall provide
written notice to Applicant and County of said cessation of activity, which County shall
then verify. If written notice is not provided to County, Termination of this Agreement
shall not occur until County has determined that the Applicant's Use by Special Reviews
are inactive, which shall be three (3) years following County's observance of the
cessation of activities, as provided in Sec. 23-2-200.E of the Weld County Code.
2.0 Termination Procedures.
2.1 Termination Procedures Following Cessation of Permit Related Activities:
Following the events outlined in paragraph 1.1 above, County shall conduct its annual
road inspection. Said road inspection shall be conducted on or before May 31 following
the announcement or determination of the cessation of permit related activities on the
Property. The results of the inspection shall be delivered in writing to the Applicant and
Operator. If the County determines that pursuant to the terms of this Agreement, the
Operator must complete any of the improvements and/or road maintenance obligations
outlined herein, said obligations must be completed within a reasonable period of time
thereafter, but in no event later than six (6) months following the determination that
permit related activities have ceased.
3.0 Consequence of Termination Pursuant to Section C.4.0: In the event that
activities related to Applicant's permitted facilities cease as a result of the revocation of the
permit, neither Applicant nor Operator shall be released from its obligations under this
Agreement. Only after Applicant's successful completion of all repairs or improvements required
under this Agreement, in the County's sole discretion, deemed necessary to preserve public
interests will the Applicant be released from any of the obligations imposed by the terms of this
Agreement.
G. 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.
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H. Enforcement: If, in the County's opinion, Applicant has violated any of the terms of this
Agreement, County shall notify Applicant of its belief that the Agreement has been violated and
shall state with specificity the facts and circumstances which the County believes constitute
violation. Applicant shall have thirty (30) days within which to either cure the violation or
demonstrate compliance. If, after thirty (30) days have elapsed, County believes in good faith
that a violation of the terms and conditions of this Agreement still exists (despite cure), County
may enforce by any legal means, including, but not limited to, legal action for equitable or
monetary relief filed in the Weld District Court, execution upon submitted collateral (if
applicable), and/or administrative action of the County to suspend or revoke the underlying land
use permit or approval pursuant to the procedural provisions of Section 2-4-40 of the Weld
County Code. Violations of the terms and conditions of this Agreement include, but are not
limited to, violations of the agreements Applicant must enter into as required by this Agreement,
and/or failure to enter into such agreements in a timely manner.
I. 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.
J. 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, Applicant shall provide the County with proof of
Applicant's authority to enter into this Agreement within five (5) days of receiving such request.
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Carly Koppes, Clerk and Recorder, Weld County, CO
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
day and year first above written.
APPLICANT (Aka Energy Group, LLC):
SIGNATURE
PRINTED NAME
/Val
TITLE (If Applicable) Co r p . F ,H Pia -mutt -
STATE OF COLORADO )
) SS.
County of Weld )
The f going in n�ent was acknowledged before me this 3��
day of
2014, by vc ptali
WITNESS my hand and official seal.
My commission Expires:
WELD COUNTY:
SIGNATURES.
i,a1 41f' 2°11
Notary u
PRINTED NAMES / c,.. , /7c r/+/
TITLE Psi I: t IVO r/s ?r'r P c TcA,
STATE OF COLORADO
County of Weld
)
)
)
SS.
MARY ELIZABETH GWINN
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134075433
MY COMMISSION EXPIRES DECEMBER 4, BM
The foregoing instrument was acknowledged before me this in day of Mir m h r ,
2014, by .L . Oa,/ /91c j,, i N
WITNESS my hand and official seal.
My commission Expires:
/
Notary Public
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Carly Koppes, Clerk and Recorder, Weld County, kO4ki 11111
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To fully execute for recordation, please note this Road Maintenance Agreement for USR14-0035,
Aka Energy Group, LLC, has been presented to the Board of County Commissioners for review,
approval and signing by the Chair; however, the agreement is effective November 10, 2014.
Date:
APR 292019
ATTEST' BOARD OF COUNTY COMMISSIONERS
Weld +ou ty lerk to the Br-ard WELD COUNTY, COLORADO
BY:
.'d" a -Allk
Deputy CI
k to a Boa
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Carly Koppes, Clerk and Recorder, Weld County, CO
VIII VATI WHELK 4lWIVIi0411N'tK411111
Mike Freeman, Chair Pro-Tem
R292019
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