HomeMy WebLinkAbout20190802.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
Crestone Peak Resource Holdings, LLC — USR14-0017
DEPARTMENT: Public Works DATE: January 28, 2019
PERSON REQUESTING: Tisa Juanicorena
Brief description of the issue:
The Department of Public Works received a request froulu the applicant, Crestone Peak Resource Holdings, LLC,
requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for
(USR14-0017). 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 USR14-0017, and that this
item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Annie Schedule as Regular
itocoaunendation BOCC Hearing Item Other/Comments:
Sean P. Conway
Scott K. James
Steve Moreno
Mace Freeman, Pro-Tem
Barbara Kirkmeyer, Chair
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2019-0802
ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Crestone Peak Resource Holdings, LLC — USR14-0017
THIS AGREEMENT is made this Z "t4.
day of Lunvol"r , 201)'(, by and between Crestone
Peak Resources Holdings, LLC , a corporation organized under the laws of the State of Colorado, whose
address is 1801 California Street, Suite 2500, Denver, Colorado 80202-2638, 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:
Part of the East 1/2 of Section 21, Township 1 North,
Range 68 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
USR14-0017, and
WHEREAS, Property Owner acknowledges that the final approval of USR14-0017 is conditional
upon Property Owner's road maintenance and adherence to the specified haul routes 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 I: SITE SPECIFIC PROVISIONS
Mr2 21'
N m A. Haul Routes:
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��� m� 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property, as directed
Ill m by the Board of County Commissioners by Resolution, dated October 20, 2014:
0'8 1) "The Haul Route from the HUB facility is designated to be onto County Road 6, east to the
4 intersection of County Roads 6 and 7, north on County Road 7 to County Road 8, east on County Road 8
Ma 1.! (Erie Parkway). Inbound truck traffic is designated to be west on County Road 8 (Erie Parkway) to County
"p•-� Road 7, south on County Road 7 to the intersection of County Roads 7 and 6, west on to County Road 6 to
c the HUB facility. In no event shall the haul route include County Road 6 between County Road 7 and the
I I-25 Frontage Road."
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a 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 6 and CR 7. Any County
Eroads used by traffic associated with USR14-0017 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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Page 1 of 7
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. Also, per the
Resolution, dated October 20, 2014, "Additional signage shall be posted at the access point to County
Road 6 indicating the haul route and restrictions."
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: (inapplicable to roads not in the County's jurisdiction.)
1.0 Off -site recurring maintenance, if applicable, as required by the Board:
1.1 Dust Control. Property Owner 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.
1.2 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.
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1.3 Repair. Property Owner 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.
1.4 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).
1.5 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
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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 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 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.
1.6 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 determined in this Agreement. Property Owner will be invoiced accordingly for those
proportional share costs.
1.7 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 maintenance, repair, or improvements to Property Owner's
designated haul/travel routes. 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.
1.8 Annual Road Inspection. County may conduct a road inspection annually with the cooperation of
Property Owner and all other Property Owners and/or Lessees who are required by County to
participate in road improvement/maintenance agreements 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 the Property Owner of the required
roadway repairs will be given as soon as the data become available.
1.9 Notification. The County shall notify Property Owner of County's preliminary determination and
assessment of Property Owner's proportionate share of costs of maintenance, repair, or
improvements to Property Owner's designated haul/travel routes. 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.
PART II: GENERAL PROVISIONS
A. Collateral:
1.0 General Requirements for Collateral. Property Owner shall provide to County collateral to
guarantee all of Property Owner's obligations under this Agreement: Collateral acceptance and release is
governed by the Weld County Code.
B. Access and Right -of -Way Permits:
Page 3 of 7
1.0 Access Permits. Property Owner 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.
C. Enforcement and Remedies:
1.0 Violation of Terms of Agreement. If in County's opinion, Property Owner has violated any of the
terms of this Agreement, County shall notify Property Owner of its belief that the Agreement has been
violated 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. If, after thirty (30) days have elapsed, County believes in good faith that the
violation is continuing, County may consider Property Owner to be in breach of this Agreement.
2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Owner
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 Property, 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.
3.0
events:
2.3 Revocation of USR Permit. Property Owner 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.
Termination of Agreement. This Agreement shall terminate upon the earliest of the following
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. Termination of this Agreement shall occur upon
Property Owner's complete cessation of all 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 Property Owner of cessation of activities, and verified by the
County, cessation shall only be presumed if the County determines that the USR has been inactive
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for three (3) years. Property Owner shall not be entitled to a release of 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 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.
3.4 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, which may be
completed by County after accessing Property Owner's collateral if Property Owner fails to
complete such improvements.
3.5 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.
D. General Provisions:
1.0 Successors and Assigns.
1.1 Property Owner 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, 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.
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 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
Page 5 of 7
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, 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.
8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Owner,
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.
9.0 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 the design and construction of improvements or
the negligence of the Property owner and pay any and all judgments rendered against the County on account
of any such suit, action or claim. Notwithstanding Section 8.0 above. Property Owner shall pay all
reasonable expenses and attorney fees incurred by County in defending such suit, action or claim if the
liability, loss or damage is caused by, or arises out of the negligence of the Property Owner or its officers,
agents, employees, or otherwise. Property Owner is not responsible for the liability, loss, or damage arising
from the intentional torts or the gross negligence of the County or its employees while acting within the
scope of their employment. All contractors and other employees engaged in construction of the
improvements shall maintain adequate worker's compensation insurance and public liability insurance
coverage and shall operate in strict accordance with the laws and regulations of the State of Colorado
governing occupational safety and health.
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 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.
Page 6 of 7
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.
PROPERTY OWNER:
By:
Date
Name: } Ny v��tu +� �44.IC�1 1 MC. 713
Title:
STATE OF COLORADO )
ss.
County of Weld _ )
l-2 -Lcc1
RHONDA S BOWER
Notary Public
State of Colorado
Notary ID #20014036030
My Commission Expires 05-05-2022
The foregoing instrument was acknowledged before me this.Z°t iay
2019 , by
i o�y
WITNESS my hand and official seal.
Notary Public
WELD COUNTY: (�
ATTEST: „It7.e G: '‘,k. BOARD OF COUNTY COMMISSIONERS
Wel. Oou ty Cle to the C •ard WELD COUNTY, CO ORADO
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Deputy 1, erk o the Bo
Barbara Kirkme er, Chai
4469694 Pages: 7 of 7
02/27/2019 10:50 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder; Weld County, CO
1111 PO callkil f ' PAN 11111
FEB 202019
Page 7 of 7
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