HomeMy WebLinkAbout20191035.tiff,
014)441,j -021-1-7
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, c/o Tri-State Generation and Transmission Association, Inc. — USR18-0109
DEPARTMENT: Public Works DATE: February 14, 2019
PERSON REQUESTING: Tisa Juanicorena
Brief description of the issue:
The Department of Public Works received a request from the applicant, Elevation Midstream, LLC, c/o Tri-State
Generation and Transmission Association, Inc., requesting that the Board of County Commissioners consider
approving the Road Maintenance Agreement for (USR18-0109). 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 USR18-0109, and that this
item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Sean P. Conway
Mike Freeman, Pro -Tern
Scott K. James
Barbara Kirkmeyer, Chair
Steve Moreno
Approve
Recommendation BOCC Hearing Item Other/Comments:
Schedule as Regular
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2019-1035
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ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Elevation Midstream, LLC, c/o Tri-State Generation and Transmission Association, Inc. — USR18-0109
THIS AGREEMENT is made this a day of - mob , 2011 , by and between Elevation
Midstream, LLC, 370 17th Street, Suite 5300, Denver, CO 80202-5653, and Tri-State Generation and
Transmission Association, Inc., 1100 W. 116th Ave, Westminster, CO 80234, a Colorado cooperative
corporation organized under the laws of the State of Colorado, 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, Tri-State will be constructing a 230kV Substation transmission line facility and
associated 230kV transmission line on the following described property in the County of Weld, Colorado:
Subdivision Exemption, SUBX18-0039; 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 Project," and
WHEREAS, Tri-State has received Weld County Board of Planning Commissioner approval of
USR18-0109, and
WHEREAS, Tri-State acknowledges that the fmal approval of USR18-0109 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 I: 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 during
construction of the Project.
1.0 Haul Routes. The following roads are designated as haul/travel routes for the Project:
1) East/West along CR 6.
2) North/South along CR 15.
2.0 Haul trucks shall enter and exit the site at the approved access on CR 6 and utilize CR 6 for
further dispersal. Any County roads used by traffic associated with USR18-0109 may become part of the
established haul/travel routes.
3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds per axle
and axle configurations unless overweight permits have been applied for and granted.
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4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the
above -mentioned haul/travel route for a limited period (six months or less), Weld County Public Works
may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved
county roads whenever possible. A deviation from the established haul/travel route lasting more than six
(6) months or requests for one (1) or more deviations within a 12 -month period shall authorize the County
to change the haul/travel routes designated herein, and provide notice to 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 during 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.
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 theProject.
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 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 repairs 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 Repair Costs, County shall
notify Tri-State 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 maintenance repairs, Tri-State shall submit
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Off -Site Construction Plans and Cost Estimates to County for review. Tri-State 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.
5.1 In County's sole discretion, County may undertake the repairs. Tri-State's payment for its
Proportionate Share of the road repairs 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, or repairs to Tri-State's designated haul/travel routes. Prior to County's fmal 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 fmal 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/ 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, or repairs 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 fmal determination and assessment.
PART II: 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.
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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
events:
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 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.
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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
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 repair 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.
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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.
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STATE OF COLORADO
County of Weld
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The foregoing instrument was acknowledged before me this Orly of Ftb
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Tri-Slate Generation and Transmission Association, Inc.:
ASHLEY ELIZABETH COKLEY
Notary Public
State of Colorado
Notary ID # 20174010424
My Commission Expires 03-08-2021
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Name: Joel K. Bladow
Title: Senior Vice President, Transmission
STATE OF COLORADO
County of Weld
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Notary Public
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The foregoing instrument was acknowledged before me this L day of
2011.7 , by Joel K. Bladow as Senior Vice President, Transmission for Tri-State Generation and Transmission
Association, Inc.
WITNESS my hand and official seal.
H. STEVEN GRAY
NOTARY PUBLIC
STATE OF COLORADO
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MY COMMISSION EXPIRES APRIL 2, 2022
WELD UUUN 1 Y
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Weld •. i ty Clerk to th- B
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BOARD OF COUNTY COMMISSIONERS
W = i COUNTY, COLOO
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