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Home My WebLink About20190516.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Road Maintenance Agreement for: ONEOK ELK CREEK PIPELINE, LLC - USR18-0043 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, ONEOK ELK CREEK PIPELINE, LLC, requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for (USR18-0043). 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 USR18-0043, 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-Tem Barbara Kirkmeyer, Chair /9 Schedule as Regular BOCC Hearing Item Other/Comments: cc : R,)(771 EP). PL (CC,) O1IO/ 19 e ClAtA(Pki)) 2019-0516 `1aL- 02573 ROAD MAINTENANCE AGREEMENT ONEOK - USR18-0043 THIS AGREEMENT is made this day of aili-' , 2011, by and between ONEOK ELK CREEK PIPELINE, L.L.C., hereinafter referred to as ''ONEOK" and the County of Weld, by and through its Board of County Commissioners, hereinafter referred to as "County." WITNESSETH: WHEREAS, ONEOK, either directly or through its affiliate or contractors, is or shall be constructing a pipeline system and facility a portion of which is located in Weld County, Colorado (the "Project") and related to USR 18-0043. WHEREAS, in connection with the Project, ONEOK has requested permission to use and access certain county roads as shown on Exhibit "A" attached hereto (the "Haul Route Roads") with heavy trucks, trailers, vehicles, equipment and materials. WHEREAS, the ONEOK Proj ect will generate additional vehicles and heavy traffic for an extended period of time; and WHEREAS, the County, and ONEOK 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 1 (of 2): Site Specific Provisions A. Reserved B . Haul/Travel Routes 1.0 Off -Site Dust Control/Abatement: ONEOK is required to provide dust abatement along affected Haul Route Roads within 1/2 mile of the access location of the pipeline, as determined by the County. County will determine the proportionate share of dust control to be paid by ONEOK. 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 may perform traffic counts to determine the amount of traffic related to the construction. 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: ONEOK 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 relating to the Project. Should ONEOK's activities or vehicle circulation patterns change in the future so that County approves an alternate haul route, and all or a significant portion of ONEOK's sourced traffic no longer utilizes the above -described haul route and instead utilizes other portions of County roads, ONEOK 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 4465108 Pages: 1 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO kAlli1I 111 } Page I of 6 0e®/9-75.1 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. 3.0 ONEOK shall notify the County Engineer or his representative One (1) week prior to the start of any mobilization of equipment authorized by the County. The County may conduct an inspection of the Haul Route Roads to verify the condition of the proposed route on County Roads and to identify any pre -construction improvements as may be needed to accommodate the Project, which shall be subject to the mutual approval of the County and ONEOK. The road condition inspection will be conducted by Weld County Public Works and coordinated with ONEOK who will be entitled to be present during such inspection. Upon request of ONEOK, the County shall provide ONEOK with copies of the baseline documentation from the road condition inspection, including but not limited to notes, reports, and photographs. 4.0 Following completion of the Project, County Engineer or his representative may complete a post construction inspection is the same format as the pre -construction inspection to identify the condition of the proposed route on a post construction basis. The post construction inspection will be conducted by the County Engineer or his representative and coordinated with ONEOK who will be entitled to be present during such inspection. Upon request of ONEOK, the County shall provide ONEOK with copies of the post construction documentation from the road condition inspection, including but not limited to notes, reports, and photographs. If any activities of the ONEOK, its employees, contractors and/or subcontractors result in damage to the roads (other than normal wear caused by ordinary traffic), as supported by the post construction inspection as compared to the pre -construction inspection, ONEOK shall be responsible for the repair of the damage caused by ONEOK's activities, such repair to be completed by ONEOK upon reasonable notice from the County. 4.1 Need for Immediate Repairs: In the event of damage to a Haul Route Road by ONEOK traffic relating to the Project that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify ONEOK of such Significant Damage. ONEOK 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 ONEOK identifies Significant Damage prior to receiving notice thereof from County, ONEOK 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). 4.2 The County and the ONEOK agree they shall cooperate with each other regarding all matters necessary to carry out the full intent and purpose of this Agreement. 5.0 Proportionate Share of Road Maintenance Responsibilities: 5.1 ONEOK shall pay its Proportionate Share of costs of dust control/abatement, paving, repairs, maintenance, improvements, attributable to ONEOK's activities during construction. 5.2 The County shall notify ONEOK of County's preliminary determination and assessment of ONEOK's proportionate share of costs. Prior to County's final determination and assessment, County shall provide ONEOK with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider ONEOK's input prior to making a final determination and assessment. The 4465108 Pages: 2 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII �� 14r11I '1�9�M 1 ! INN IALIMidi E "Ill Page 2 of 6 County shall have sole responsibility for determination of ONEOK's proportionate share of costs. Part 2: General Provisions A. General Requirements: 1.0 Permits. ONEOK must still apply for and abide by the terms of any necessary right-of-way permits, grading permits, and building permits. No work (other than access as provided herein) 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: ONEOK agrees to defend, hold harmless, and indemnify the County, its officials, employees and authorized volunteers against any and all claims and costs, including attorney's fees, arising during or resulting from the negligence or willful misconduct of ONEOK, its contractors, subcontractors, employees, or agents. 3.0 Liability for Damage to Road. ONEOK shall be financially responsible for any and all damage caused to any Weld County Road as a result of the installation, use, or maintenance of the pipeline through the County's rights -of -way, without regard to the negligence, or lack thereof, of ONEOK 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, ONEOK has violated any of the terms of this Agreement, County shall so notify ONEOK and shall state with specificity the facts and circumstances which County believes constitute the violation. ONEOK 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 Execution of Replacement Agreement: This Agreement shall terminate following County's execution of a new Improvements Agreement with a new ONEOK 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. Revocation of USR: This Agreement shall terminate following County's revocation of ONEOK's USR, except that the ONEOK shall only be released from this Agreement after the successful completion of all improvements required under this Agreement. 2.2 Completion of Construction: This Agreement shall terminate following ONEOK's completion of construction of the Project and ONEOK shall notify the County of completion. 3.0 Revocation of USR: ONEOK 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 3.0 Court action: Upon notice of violation and failure to cure within the time permitted by this Agreement, County or ONEOK may seek relief in law or equity by filing an action in the Weld District 4465108 Pages: 3 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1191)FgrilitiMIC141111IM 11111 } Page 3 of 6 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 "ONEOK" shall include any individual or entity, including a contractor, who is acts on behalf of the ONEOK regarding this Agreement. 2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by ONEOK without the express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. ONEOK's release of its obligations shall be accomplished by County's execution of a new 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 ONEOK, 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, ONEOK agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 4465108 Pages: 4 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO III 6 }Pale 4of6 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 ONEOK, 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, ONEOK shall provide the County with proof of ONEOK's authority to enter into this Agreement within five (5) days of receiving such request. 12.0 Notices. Any notice, request, or demand provided in this Agreement shall be given in writing, delivered in person, by private carrier or by United States certified mail (return receipt requested), or by facsimile with evidence of transmission, to the parties hereto at the addresses shown below or at such other addresses as may hereafter be furnished by one Party to the other in writing: If to ONEOK: ONEOK Elk Creek Pipeline, LLC If to COUNTY: Weld County Clerk 100 West 5th Street Tulsa, Oklahoma, 74103 Attn: Director, Real Estate Services Telephone: Telephone: 918-588-7704 With a copy to: With a copy to: ONEOK, Inc. Weld County Attorney 100 West 5th Street Tulsa, Oklahoma, 74103 Attn: General Counsel Telephone: 918-588-000 Such notice will be deemed given when actually received by the party being notified, except in the case of a notice sent by U.S. mail, which will be deemed received on the third (3rd) business day after such notice is deposited in the U.S. mail in the manner described above. Either Party may change their addresses for notice (and the person(s) to whom notice is to be sent) for purposes of {00100419 6 }Page:,of6 this Paragraph by giving written notice of such change to the other party in the manner provided in this Paragraph, provided any such change will be effective as to that party from and after the fifth (5th) business day after receipt of such notice by such party. ONEOK: By: Name: L; igG es,t gr- Title: STATE OF OKLAHOMA County of TULSA 20154, WITNE Date SS. f/o/( Rz The foregoing instrument was acknowledged before me this 10 day of ?ems P C rt) Notary Public in and for ea , � l-reA ommission #1 048 Expires: February 22, 2020 Notary Public WELD COUNTY: ATTEST- d4a..4,40,)Lp'eii Weld •ou v lerk to the Boar BY: Deputy Clei/ to BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COJORADO 4465108 Pages: 6 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO IIIIIKIIIMINNEWEILLMIIMICIMMIlk Bill Barbara Kirkmej/er, Chaif FED 0 4 Zui9 {00100419 6 }Page6of6 7&7/q- O5/(, Exhibit A Haul Route Roads 4465108 Pages: 7 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1iii rid iKilkidINI IiiiihiJilliihillardilliilliiil 1i ii i Weld County Roads within 0.5 mile of Elk Creek Pipeline Access Points Access Road Type MP ROW Intersect County Road(s) w/in 0.5 ml of access point Road Xing temp 497.1/497.5 CR 99, Road 200 Road Xing temp 500.5 CR 136, CR 105 Road Xing temp 502.4/502.7 CR 105, CR 132 7454 temp 504.0 CR 105, CR 130, CR 128 Road Xing temp 505.3 CR 128 CR 109 Road Xing temp 507.0 CR 111 Road Xing temp 507.8 CR 124 7483 temp 509.6 CR 382 Road Xing temp 513.0 CR 118 7472 temp 514.2 CR 118 Road Xing temp 517.2 CR 127 7473/7482 perm 519.4, 521.0 CR 116, CR 133 7485 perm 523.3 CR 106 Road Xing temp 524.4 CR 106 Road Xing temp 525.6 CR 104 Road Xing temp 526.8 CR 102 7474 temp 527.4 CR 102, CR 141 7478/7486 temp 529.0/530.0 CR 145 Road Xing temp 533.0 CR 145 Road Xing temp 534.4/534.9 CR 149, CR90 Road Xing temp 537.7 Pawnee Pioneer Trail 14 Road Xing temp 538.4 CR 153 Road Xing temp 539.1 CR 84, CR 153 Road Xing temp 539.9 CR 155 Road Xing temp 540.5 CR 82, CR 155 7455 perm 540.7 CR 82, CR 155 4465108 Pages: 8 of 8 02/06/2019 10:56 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII IVMI I1/4.1iNI IIAPIWI'AINk.11Ia11,W4 II III Hello