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Home My WebLink About20190613.tiffAJasz 4e BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Road Maintenance Agreement for: Elevation Midstream, LLC — USR18-0061 DEPARTMENT: Public Works DATE: January 15, 2019 PERSON REQUESTING: Tisa Juanicorena Brief description of the issue: The Department of Public Works received a request from the applicant, Elevation Midstream, LLC, requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for the Construction Period (USR18-0061). 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? 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 USR18-0061, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Sean P. Conway Scott K. James Steve Moreno Mike Freeman, Pro -Tern Barbara Kirkmeyer, Chair Approve Recommendation Schedule as Regular BOCC Hearing Item Other/Comments: cc : PWCTJ/ E -Pi Plccc j oeiasr i9 c C:6,06ad) 2019-0613 0210 ROAD MAINTENANCE AGREEMENT ACCORDING TO REQUIREMENTS DURING THE CONSTRUCTION PERIOD ELEVATION MIDSTREAM, LLC - USR18-0061 THIS AGREEMENT is made this 7TH day of January, 2019, by and between ELEVATION MIDSTREAM, LLC , a corporation organized under the laws of the State of Colorado, whose address is 370 17th Street, Suite 5300, Denver, CO 80202-5653, 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 B of Recorded Exemption, RE -1306; being part of the NE1/4 of Section 30, Township 1 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 USR18- 0061, and WHEREAS, the Property Owner facility will generate additional vehicles and traffic directly associated with USR18-0061, for a 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 damages to the designated haul/travel routes during construction of the Project. 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Project: 1) East and West along 168th Avenue, North and South on Weld County Road 13, East and West on County Road 6, and East and West along Baseline Road between Interstate 25 and 168th Avenue, Weld County, Colorado 2) East and West along County Road 6, North and South on County Road 9, and West along Baseline Road between Interstate 25 and 168th Avenue, Weld County, Colorado 4466974 Pages: 1 of 7 02/14/2019 11:33 AM R Fee $0.00 Carly Koppes, Clerk and Recorder Weld County. CO III ,LC - USR18-0061, RMCA Page 1 of 7 66637996.1 02,0 ig- / 2.0 Haul Trucks. Haul trucks shall enter and exit the site at the approved access on CR 6 and travel east-west/north-south to the nearest paved road for further dispersal. Any County roads used by traffic associated with USR18-0061 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 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 shall be financially responsible for its proportional share of dust control on unpaved designated haul/travel routes during the construction of the Project. The amount and extent of dust control will be determined by site -specific conditions at the time, as determined exclusively by County personnel. Dust abatement along the relevant haul/travel routes is expected to occur approximately two to five times per year. Dust abatement is required for roads with more than 200 vehicles per day, per Section 8 6-100 of the Weld County Code. 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. 1.1 Dust Control During Construction. If necessary, as determined by the County, the Property Owner shall cause to be performed within 30 days of notification, at its sole expense, dust control by a contractor approved by Weld County Public Works during the construction period of the development Project. 2.0 Repair: Property Owner will be financially responsible for its proportional share of the excavation, repair, and patching of any damage on current or future haul route roads caused by Property Owner. The amount and extent of repair and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. 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 repair and patching of any damage on the alternative haul route roads caused by Property Owner 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. If technically feasible, 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. If possible, all other repairs shall commence within thirty (30) days of receipt of Weld County's written notice. 4466974 Pages: 2 of 7 02/14/2019 11:33 AM R Fee:$0,00 Carly Koppel, Clerk and Recorder. Weld County, CO ®IIIl11ruf ��iteIIt�"«��l�I�'��Ifftiff Li I �I11��14IN ELEVATION MIDo is -uv', LLA., - uK1a-UU61, RMCA Page2of7 66637996A I 3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel route by Project traffic that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify Property 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). 4.0 Repair of Road: On or before December 31 of the calendar year in which County staff has determined through site analysis and/or pavement testing that a particular haul route road portion will require repairs 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 Repair Costs, County shall notify Property Owner in writing that the Off -Site /Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of the need to undertake the road repairs, Property Owner shall submit Off -Site Construction Plans and Cost Estimates to County for review. Property Owner shall have sole responsibility for the completion of the repairs on or before December 15 of the year following County's notice of the need for repairs. 4.1 In County's sole discretion, County may undertake the repairs. Property Owner's payment for its Proportionate Share of the road repairs will be calculated as described in this Agreement. The Property Owner will be invoiced accordingly for those proportional shares costs. 5.0 Calculation of Property Owner's Proportional Share of Costs. The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportional share of costs of repairs to Property Owner's designated haul/travel routes. Property Owner will not be responsible for routine maintenance and improvement for which the County is solely responsible. 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 proportional share of costs. Property Owner agrees to pay such proportional share of costs within 30 days of receiving an invoice from County. 6.0 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 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. 4466974 Pages: 3 of 7 02/14/2019 11:33 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder Weld County, CO 10 h' aLUTErtHii`ayi UI III ELEVATION MIDSTREAM, LLC - USR18-0061, RMCA Page 3 of 7 66637996.1 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 USR18-0061, 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 USR18-0061, 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 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. 4466974 Pages: 4 of 7 02/14/2019 11:33 RM R Fee:$0.00 Carly Koppel. Clerk and Recorder, Weld County, CO ,III ki r ril:YI ,M IOW Wig I , LLC - USR18-0061, RMCA 4 of 7 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 County 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 be delegated, transferred or assigned in whole or in part by Property Owner with 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, 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. 4466974 Pages: 5 of 7 02/14/2019 11:33 AM R Fee:$0.00 Carly Ko'ppes. Clerk and Recorder. Meld County VIII PciFITATIRIP1,%11. 1,1.0015 Ay), III ✓1, LLC - USR18-0061, RMCA 5 of 7 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. 12.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement, understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with the attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. 13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential conflict between any term in this Agreement and the Resolution of the Board of County Commissioners approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the event of a discrepancy between this agreement and the Weld County Code in effect at the time of the agreement, the terms of the Weld County Code shall control. 4466974 Pages: 6 of 7 02/14/2019 11:33 AM R Fee:$0.00 Carly Koppes. Clerk and Recorder, Weld County: CO ELEVATION MIDSTREAM, LLC - USR18-0061, RMCA Page 6 of 7 66637996.1 Name: Kevin Williams Title: President, Elevation Midstream, LLC STATE OF COLORADO ) County of Weld Date SS. ASHLEY ELIZABETH COKLEY Notary Public State of Colorado Notary ID 4 201 74010424 My Commission Expires 03-08-2021 The foregoing instrument was acknowledged before me this I day of 2011 , by /(/j'i � (,t��LI 10115 WITNESS my hand and official seal. ca - Notary Public WELD COUNTY: ATTEST: V:djej");(A Weld C. .y Clerk to the Board BY: Deputy Cler BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Mike Freeman, Pro-Tem FEB © € 2019 4466974 Pages: 7 of 7 02/14/2019 11:33 AM R Fee:$0.00 ■III Carly. ppes, Clerk and '��r�,'�:IF' Recorder, %M�I, �J,II,7 ' d' �� I III ELEVATION MIDSTREAM, LLC - USRI8-0061, RMCA Page 7 of 7 66727908.1 c,2p/9_ °613 Hello