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Home My WebLink About20190513.tiff1A3Q t, ',2y o6 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Road Maintenance Agreement for: Tri-State Generation Transmission Association, Inc. — USR18-0079 DEPARTMENT: Public Works DATE: January 9, 2019 PERSON REQUESTING: Tisa Juanicorena Brief description of the issue: The Department of Public Works received a request from the applicant, Tri-State Generation Transmission Association, Inc., requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for (USR18-0079). 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 USR18-0079, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Recommendation Sean P. Conway Scott K. James Steve Moreno Mike Freeman, Pro -Tern Barbara Kirkmeyer, Chair (� Schedule as Regular BOCC Hearing Item Other/Comments: Ge, Pc..J(TZ'IEP), PL C CC,) oettttt`'j �.-/&—/9 2019-0513 ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Tri-State Generation and Transmission Association, Inc. — USR18-0079 THIS AGREEMENT is made this 'i //i day of , 201, by and between Tri-State Generation and Transmission Association, Inc., a Colorado cooperative corporation organized under the laws of the State of Colorado, whose address is 1100 W. 116th Ave, Westminster, CO 80234, hereinafter referred to as "Tri-State," 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, Tri-State will be constructing an electric transmission line facility across the following described properties in the County of Weld, Colorado: The Southwest Quarter of Section 20, Township 8 North, Range 66 West; the Southeast Quarter of Section 20, Township 8 North, Range 66 West, and the West Half of Section 21, Township 8 North, Range 66 West. hereinafter referred to as "the Project," and WHEREAS, Tri-State has received Board of County Commissioner approval of USR18-0079, and WHEREAS, Tri-State acknowledges that the final approval of USR18-0079 is conditional upon Tri-State funding during construction only of road maintenance described in this Agreement. 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 1: SITE SPECIFIC PROVISIONS A. Haul Routes: The Tri-State shall be financially responsible for its proportional share of the County's costs associated with maintaining and/or improving designated haul/travel routes. 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Project: 1) East and west along CR 90. 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 27 and 29 and travel east-west/north-south to the nearest paved road for further dispersal. Any County roads used by USR18-0079 traffic 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 4465105 Pages: 1 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 Nell,IA h;W iwall'ilMialiVIFI iKO NA 11111 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 Tri-State. 5.0 Haul Route Signage. Tri-State shall install travel route signs, if applicable, as per Manual of Uniform Traffic Control Devices standards, at all exit points of the Project 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. B. Maintenance Requirements: 1.0 Off -site recurring maintenance, if applicable, as required by the Board: 2.0 Dust Control. Tri-State shall be financially responsible for its proportional share of dust control on unpaved designated haul/travel routes after commencement of operation. 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. 2.1 Dust Control During Construction. If necessary, as determined by the County, Tri-State 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. 3.0 Repair. Tri-State shall be financially responsible for its proportional share of excavation, patching, and pavement repair on designated haul/travel routes. 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. 4.0 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 Tri-State of such Significant Damage. Tri-State 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 such repair is not commenced within such forty-eight (48) hour period, County shall have the right to draw on the Road Maintenance Collateral and use such funds to perform such repair. If Tri-State identifies Significant Damage prior to receiving notice thereof from County, Tri-State 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). 5.0 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/travel route road portion will require paving measures in order to protect the public health, safety, and welfare, and the County has budgeted sufficient funds for the following calendar year to pay its share of the Off -Site Improvement/Repair Costs, County shall notify Tri-State 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, Tri-State shall submit Off -Site Construction Plans and Cost Estimates to County for review. Tri-State shall have sole responsibility for the completion of the repairs 4465105 Pages: 2 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO and/or improvements on or before December 15 of the year following County's notice of the need for repairs. 5.1 In County's sole discretion, County may undertake the repairs and/or improvements. Tri-State's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in this Agreement. Property Owner will be invoiced accordingly for those proportional share costs. 6.0 Calculation of Tri-State's Proportional Share of Costs. The County shall notify Tri-State of County's preliminary determination and assessment of Tri-State's proportional share of costs of maintenance, repair, or improvements to Tri-State's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide Tri-State with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Tri-State's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of Tri-State's proportional share of costs. Tri-State agrees to pay such proportional share of costs within 30 days of receiving an invoice from County. 7.0 Annual Road Inspection. County may conduct a road inspection during construction of the Project with the cooperation of Tri-State for the haul routes designated in this Agreement. 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 Tri-State of the required roadway repairs will be given as soon as the data become available. 8.0 Notification. The County shall notify Tri-State of County's preliminary determination and assessment of Tri-State's proportionate share of costs of maintenance, repair, or improvements to Tri-State's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide Tri-State with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Tri-State's input prior to making a final determination and assessment. PART 2: GENERAL PROVISIONS A. Collateral: 1.0 General Requirements for Collateral. Tri-State shall provide to County collateral to guarantee all of Tri-State's obligations under this Agreement. Collateral acceptance and release is governed by the Weld County Code. B. Access and Right -of -Way Permits: 1.0 Access Permits. Tri-State 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 V of Chapter 12 of the Weld County Code. 2.0 Right -of -Way (ROW) Permits. Per Article IV of Chapter 12 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. 4465105 Pages: 3 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII POPJFIIIPIAlriDE ilk 1I III 7 C. Enforcement and Remedies: 1.0 Violation of Terms of Agreement. If in County's opinion, Tri-State has violated any of the terms of this Agreement, County shall notify Tri-State of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which County believes constitute the violation. Tri-State shall have fifteen (15) days within which to either cure the violation or demonstrate compliance. If, after fifteen (15) days have elapsed, County believes in good faith that the violation is continuing, County may consider Tri-State to be in breach of this Agreement. 2.0 Remedies for Breach by Tri-State. In the event that County determines that Tri-State has violated the terms of this Agreement, and has failed to correct said violation, County may exercise any or all of the following remedies, or any other remedy available in law or equity. 2.1 Withholding Permits. County may "lock" any or all lots within the Project, which precludes the continued issuance of building permits, zoning permits, septic permits, or any other permit issued by any department of the County. 2.2 Court Action. County may seek relief in law or equity by filing an action in the Weld District Court or Federal District Court for the District of Colorado, except that no such civil action or order shall be necessary to access collateral for the purpose of completing improvements as described above. 2.3 Revocation of USR Permit. Tri-State acknowledges that failure to comply with the terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option in its sole discretion by proceeding with revocation under the then current provisions of the Weld County Code. 3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following events: 3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of the underlying land use approval under Weld County Code Section 23-2-290. However, County may still exercise all necessary activities under this Agreement that the County determines necessary to protect the health, safety, and welfare of the residents of Weld County. 3.2 Cessation of all Permit Related Activities. Tell _ 'ination of this Agreement shall occur upon Tri-State's complete cessation of all construction activities permitted by the USR including any clean up or restoration required. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release/vacation constitute a Termination. Unless informed in writing by the Tri-State of cessation of activities, and verified by the County, cessation shall only be presumed if the County determines that the USR has been inactive for three (3) years. Tri-State shall not be entitled to a release of the Project or Warranty Collateral unless and until the improvements required by this Agreement are completed. 3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's execution of a new Improvements Agreement with a new party or operator who 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. 3.4 Revocation of USR. This Agreement shall terminate following County's revocation of Tri-State's USR, except that the Tri-State shall only be released from this Agreement after the 4465105 Pages: 4 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 NrArkilliTIVY hi&lighlii II 11 �f 7 successful completion of all improvements required under this Agreement, which may be completed by County after accessing Tri-State's collateral if Tri-State fails to complete such improvements. 3.5 Completion of Construction: This Agreement shall terminate following Tri-State's completion of construction of the facilities authorized by the underlying USR. Tri-State shall notify the County of completion. D. General Provisions: 1.0 Successors and Assigns. 1.1 Tri-State may not delegate, transfer, or assign this Agreement in whole or in part, without the prior 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 such case, Tri-State's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with a successor party. 1.2 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 all roads affected by this Agreement. 2.0 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. 3.0 Governmental Immunity. No term or condition of this contract 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. 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 in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 5.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 6.0 Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. In the event of a legal dispute between the parties, the parties agree that the Weld County District Court or Federal District Court for the District of Colorado shall have exclusive jurisdiction to resolve said dispute. 4465105 Pages: 5 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes; Clerk and Recorder, Weld County, CO 1111 IgraPVII Aii KPH II I Page 5 of 7 7.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Tri-State, 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. 8.0 Release of Liability. Tri-State 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 Tri-State's execution of its maintenance requirements under this Agreement, and pay any and all judgments rendered against the County on account of any such suit, action or claim, and notwithstanding section 7.0 above, 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 maintenance activities contemplated under this Agreement 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. 9.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 10.0 Authority to Sign. Each person signing this Agreement 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, Tri-State shall provide the County with proof of Tri-State's authority to enter into this Agreement within five (5) days of receiving such request. 11.0 Acknowledgment. County and Tri-State 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. 12.0 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. 4465105 Pages: 6 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, Co lilt I �.r�lI'LEii�'IG �14� kI I' «1411i.��I�y �Li 'I 1I II I Page 6 of 7 Tri-State Generation and Transmission Association, Inc.: By: Name: Joel K. Bladow Title: Senior Vice President, Transmission STATE OF COLORADO County ofada-YwcL, Date SS. FAITH WARNER NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20184035814 MY COMMISSION EXPIRES SEPTEMBER?, 2022 The foregoing instrument was acknowledged before me this /0 day ofiL 201V , by Joel K. Bladow as Senior Vice President, Transmission for Tri-State Generation and Transmission Association, Inc. WITNESS my hand and official seal. Notary Public WELD COUNTY: ATTES Weld BY. day/4A) BOARD OF COUNTY COMMISSIONERS tyClerk to the Bo. d W D COUNTY, CQLORADO Deputy Cl: t• the Boar 4465105 Pages: 7 of 7 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 m�1�UN :Ai N II L��41� Pr COW Oki 11111 arbara KirkmeyJer, Chair FED C.t 2-0 19 Page 7 of 7 ao l --O5/3 TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC. HEADQUARTERS: P.O. BOX 33695 DENVER, COLORADO 80233-0695 303-452-6111 December 17, 2018 Weld County Public Works Attn: Tisa Juanicorena 1111 H Street Greeley, CO 80634 Re: Road Maintenance Agreement (USR18-0079) Dear Ms. Juanicorena: RECEIVED DEC 18 2019 Wela County 'ublic Works Dept Please find enclosed the original signed Road Maintenance Agreement for USR18-0079. We are close to having the USR Plat complete. Once finalized, we will send copies for review. As I understand it, the County upon acceptance of the plat will record the plat and the agreement simultaneously, and then Tri-State can begin construction. Thank you for all your help on this matter. If you would like to discuss I can be reached at 303-254-3023, or 303-204-8054. Sincerely, Jon P. Davis Land Rights Manager Enclosure AN EQUAL OPPORTUNITY/AFFIRl1AT/VEACTIGN EMPLOYER CRAIG STATION P.O. BOX 1307 A Touchstone Energy'Cooperative piCirA CRAIG. CO 81626-1307 970-824-4411 ESCALANTE STATION P.O. BOX 577 PREWITT, NM 87045 505-876-2271 NUCLA STATION P.O. BOX 698 NUCLA. CO 81424-0698 970-864-7316 Hello