HomeMy WebLinkAbout20190298.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Improvements Agreement for:
Stroh Family Trust, OGG&S, LLC, c/o Discovery DJ Services, LLC — USR 18-0039
DEPARTMENT: Public Works DATE: 9/24/2018
PERSON REQUESTING: Evan Pinkham
Brief description of the issue:
The Department of Public Works received a request from the applicant, Discovery DJ Services, LLC, requesting
that the Board of County Commissioners consider approving the Improvements Agreement for the oil and gas
facility (USR18-0039). No collateral is required with this agreement at this time.
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 "Improvements & Road Maintenance Agreement According To Policy
Regarding Collateral For Improvements", are found to be acceptable.
What options exist for the Board?
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 Improvements & Road Maintenance Agreement According To Policy Regarding
Collateral For Improvements for (USR 1 8-0039), and that this item be placed on the next regularly scheduled
BOCC Hearing, as part of the Consent Agenda.
Approve Schedule as Regular
Recommendation BOCC Hearing Item Other/Comments:
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro-Tem
Steve Moreno, Chair
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2019-0298
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Stroh Family Trust, OGG&S, LLC, c/o Rocky Mountain Midstream, LLC, formerly known as
Discovery DJ Services, LLC — USR18-0039
THIS AGREEMENT is made this 12th day of December, 2018, by and between Stroh Family Trust,
10815 W. Roudelay Circle, Sun City, AZ 85351, and OGG&S, LLC, 1004 Richmond Road, Edmund, OK
73034, c/o Rocky Mountain Midstream, LLC, formerly known as Discovery DJ Services, LLC, 1 Williams
Center, Tulsa, OK 74172, a corporation organized under the laws of the State of Oklahoma, 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:
Subdivision Exemption, SUBX 18-0014; being part of the
N1/2 of Section 12, Township 3 North, Range 65 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 USR18-0039,
and
WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic directly
associated with USR18-0039, 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) CR 34.5 to CR 49. East/West on CR 49.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 34.5 and travel to the nearest
paved road for further dispersal utilizing the approved haul route(s) above. Any County roads used by traffic
associated with USR18-0039 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.
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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
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 ControUAbatement: 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
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 Significant Damage and shall concurrently notify County of the extent, type, timing,
materials and quality of repair (i.e. temporary versus permanent).
2.2 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 paving measures in order to protect the public health, safety, and welfare, and has
budgeted sufficient funds for the following calendar year to pay its share of the Off -Site
Improvement/Repair Costs, County shall notify Property Owner in writing that the Off -Site
Improvements/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, Property
Owner shall submit Off -Site Construction Plans and Cost Estimates to County for review. Property
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Owner 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.
2.3 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.
3.0 Annual Road Inspection: County may conduct a road inspection annually with the cooperation of
Property Owner and all other Property Owner and/or Lessees who are required by County to participate in road
improvement/maintenance agreements. 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 Property Owner of the required roadway
repairs will be given as soon as the data becomes available.
4.0 Proportionate Share of Road Maintenance Responsibilities:
4.1 Property Owner shall pay its Proportionate Share of costs of dust control/abatement, paving,
repairs, maintenance, improvements, or future road replacement of any particular Haul Route
Road. 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 Equivalent Single Axle Load (ESAL) Counts. Property Owner
shall not be responsible for traffic that is not sourced from the Property Owner's facility.
4.2 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 must still apply for and abide by the terms of any necessary right-of-way
permits, grading permits, and building permits. No work may occur in the County's right-of-way without a
County -issued right-of-way permit and access permit.
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 USR18-0039, 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 USR18-0039, 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.
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B. Violations of Agreement and Remedies
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 Definitions:
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.
1.3 All references to "Property Owner" shall include any individual or entity, including an "Operator",
who is acts on behalf of the Property Owner regarding this Agreement.
2.0 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
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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, 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.
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 Attorneys Fees/Legal Costs: In the event of a dispute between County and Contract Professional,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney
fees and/or legal costs incurred by or on its own behalf.
10.0 Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
11.0 Authority to Sign: Each person signing this Agreement, and associated Exhibits, represents and
warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each
party represents and warrants to the other that the execution and delivery of the Agreement and the performance
of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal
agreement binding on such party and enforceable in accordance with its terms. If requested by the County,
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.
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Carly Koppes, Clerk and Recorder, Weld County, CO
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This Agreement may be executed in counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute for all purposes one agreement.
OPERATOR:
By: tA(Asjq t Date: December 12, 2018
Name: Matt Hastings
Title: Director of Operations & Engineering
STATE OF COLORADO
SS.
COUNTY OF WELD
The foregoing instrument was acknowledged before me this 12th day of December,
2018, by Matt Hastings.
n
WITNESS my hand and official seal.
STACIE L REIBER IOCk CY)
k
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134060847
•'Y COMMISSION EXPIRES SEPTEMBER 25, 2021
Notary Public
WELD COUNTY:
ATT
We
B
C - rk to the : oard
Deputy i� lerk to the
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Barbara Kirkmeier, Cha3'r
JAN 1 4 20i9
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Carly Koppes, Clerk and Recorder, Weld County, CO
Iih:I MANN DIA !till
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020/ 91
This Agreement may be executed in counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute for all purposes one agreement.
This page serves as a counterpart signature execution page to the original USR18-0039 Road Maintenance
Agreement.
PROPERTY OWNER:
By: ( JnIA
U Vim'
Name: Jay D. Stroh
Title: Successor Trustee, The Stroh Family Trust
STATE OF ARIZONA
COUNTY OF
Date j2.~1`7--ig
SS.
fih ✓ / p
The foregoing instrument was acknowledged before me this 1 1 day of by c -tat , l
2012, by 3 ay 0. SfirK
WITNESS my han1and .fficial sew
Notary Public;
Marlow ; County,
My Comm. Bpires 0904-2022
Cortm�aion Na 550079
WELD COUNTY:
ATTE
Wel
B
to the : oard
Deputy ip erk o' the B
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Carly Koppes, Clerk and Recorder, Weld County, CO
iv POCAI k ik I .' FhilIiMit IA iI II
BOARD OF COUNTY COMMISSIONERS
WE D COUNTY, CO ORADO
Barbara Kirkme er, Chair
jAN 14 2019
Page 7 of 8
020/9- o02.Y
This Agreement may be executed in counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute for all purposes one agreement.
This page serves as a counterpart signature execution page to the original USR18-0039 Road Maintenance
Agreement.
Date
Title: Managing Partner, OGG & S, LLC
STATE OF OKLAHOMA
ss.
COUNTY OF
Wpf//s
The foregoin instrumen) was acknowledged before hVI_day of
201, by
WITNESS my hand andcia1�Yo7dR'
. .
t 17009715
3 N1EXP. 10/20/21;
WELD COUNTY: ,�,f
ATTES . �• ;,k, BOARD OF COUNTY COMMISSIONERS
Weld n ,CI.ot - :,ard
BY:
Deputy sP rk to the Bo
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Carly Koppes, Clerk and Recorder, Weld County, CO
1III IMIF LP4�NNIINIALLF rM I III
D COUNTY, CO ORADO.
Barbara Kirkmey-r., Chair
JAN 1 4 20`0
Page 8 of 8
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