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Home My WebLink About20191519.tiffBOARD OF COUNTY CtMK; SS GNER PASS -AROUND REVIE /Regulla or Consent Hearhg Agendo REQUEST RE: BOCC Age D db Item -, Approve Road Ma n ei _ ..ace Agreement- con Russell Gurtler, Jr. Family Trust, c/o Kerr-McGee Oil and Gas Onshore, LP— USR 14-0048 DEPAR 'MENT: Public Works DATE: March 20, 2019 PERSON REQUESTING: Tisa Juanicorena arid description of the issue: I he Department of Pubiit \.\F`: I I\ Lkutifi d a Road Maintenance Agreement that was signed by the applicant: however, never recorded. Please note the additional signing page with a relative disclaimer to allow for Chair signature and final recordation of said agreement. The Department of Public Works is requesting th at t at the Board of Coup ty Commissioners consider approviog the Road Maintenance Agreement for (Russell Gurtler„ Jr. Family Trust, y( ? ‘,,,.err -,McGee Oil and Gas Onshore, LP— USR1-4 ,0O4 ). No collateral is/was required with this agreement Weld County Public Works, Planning Services and he County Attorney's Office have reviewed the above -mentioned signed origin& document and observed the following: All Public Works related items, of the "Road Maintenance Agreement According To Policy", are found to be acceptable., rflis Agreement complies with the terms of the Use by Special Review Permit Resolution, as signed by the Board of Coun y Commissioners. Wramt opthiOls e fisf f©r the I o rd? Lo hire this I. *CC Henning Rem be paced on the next avaiiarbke ea e d2 2. Have this BOCC Hezning item be pr2ce d on the ezt avairabde zgeSS s part of the Consent age , dE. ,Els part ©f the eguillar Agendzo Rmummendation: Option I. The Deb +artments of Public Works, Planning Services and the County Attorney's Office are recommending approval of the Road Maintenance Agreement According To Policy for USRl4-0048, and that this item be placed on the next regularly scheduled IOC Hearing, as part of the Consent Agenda. Sean P. Conway Mike Freeman, Pro-Tem Scott K. James Barbara Kirkmeyer, Chair Steve Moreno /7--/ 7 Approve Schedule as Regular RecommeSation. BOCC Hearing Item Other/Comments). ‘Nif t .�'"t► IVY t&iL t / 23, pL(V Of v R') miaonci c tt-600) 2019-1519 )Oz_,t,29 ROAD MAINTENANCE AGREEMENT Russell Gurtler, Jr. Family Trust c/o Kerr-McGee Oil & Gas Onshore, LP, (USR14-0048) THIS AGREEMENT is made this IL day of 201f, by and between, Russell Gurtler, J r. Family Trust whose address is 75349, Hudson, CO 80642- 9302, hereinafter called "Applicant", and Kerr-McGee Oil & Gas Onshore, LP a corporation organized under the laws of the State of Colorado, whose address is 1099 18th Street, Denver, CO 802021, hereinafter called "Lessee", 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, Russell Gurtler, J r . Family Trust is the owner of real property described as the Lot B of Recorded Exemption, RECX14-0092; being part of the N1/2 SE1/4 of Section 24, Township 3 North, Range 65 West of the 6th P.M., Weld County, CO (hereinafter "Property"); and WHEREAS, County has approved land use permits for Mineral Resource Development Facilities FOR OIL AND GAS SUPPORT AND SERVICE (OIL AND GAS PROCESSING FACILITIES AND RELATED EQUIPMENT, CENTRALIZED OIL STABILIZATION FACILITY, TRANSLOADING; AND ANY USE PERMITTED AS A USE BY RIGHT, ACCESSORY USE, OR USE BY SPECIAL REVIEW IN THE COMMERCIAL OR INDUSTRIAL ZONE DISTRICTS) for the Applicant & Lessee and WHEREAS, the construction of the Applicant & Lessee's permitted facilities will generate an increase of heavy vehicle traffic and WHEREAS, the existing County roads that serve the Applicant & Lessee's permitted facilities may require increased maintenance due to this increase of heavy vehicle traffic and WHEREAS, the parties agree that the Applicant & Lessee shall be responsible for maintenance and repair of damages the Applicant & Lessee's heavy vehicle traffic causes to County rights of way, including the County Roads, and agrees to keep them open, passable and in a safe driving condition for public use, during the initial construction phase and during any future USR14-0048 heavy vehicle traffic activity, all as contemplated herein. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: A. Haul Routes: 1.0 Established Haul Routes: 1.1 The County Roads identified as Haul Routes under this Road Maintenance Agreement are CR's 30 and 49, near the entrance to the facility on CR 30. lof9 C:\Users\puw360\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content Outlook18E8248CV\USR 14-0048 Gurtler-KMG Final RMA(2-12-I5).Jocx 4482397 Pages: 1 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 ��l�' t4� i;R th�"i�� f I�J�Mr L� Y4rh 11111 ceo (9- /5/ Any County roads routinely utilized by Applicant & Lessee's permitted facilities haul traffic may become part of the established haul routes. 1.2 No haul vehicles may exceed CDOT required specifications for pounds per axle. 1.3 In unusual or rare occasions, if particular projects mandate deviation from the above -mentioned haul route for a limited period of time (which is defined in this Agreement as a period of not more than thirty days), additional haul routes shall be established by County at the time that the deviation is allowed. If County approves such deviation, haul vehicles will utilize paved county roads whenever possible. A deviation from the established Haul route lasting more than thirty (30) days or requests for two or more deviations within a twelve month period shall be subject to the terms of Section A.4.0. In the event that haul route traffic, in excess of 15% of the daily facility haul vehicle trips, utilizes alternate haul routes for more than thirty (30) days, the provisions of Section 4.0 of this Section A shall be triggered. •' 3.0 No Deviation from Permitted Haul Routes: Except under the provisions provided in Section A.1.3, no deviation in the use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. 4.0 Effect of Future Changes to Haul Routes: In the event that County is requested by Applicant & Lessee or site operator to approve the use of an additional access, new haul route, or an alternative haul route as a result of a change in Applicant & Lessee's site activities and/or haul route circulation patterns, and if the alternative or additional access or haul route utilizes any unpaved portion of County roads, and if County determines that dust control or paving is required on the unpaved portion of said haul route roads as a result of Applicant & Lessee's use, Applicant & Lessee agrees that dust control or paving measures to protect the public health, safety, and welfare shall be instituted. County will determine the cost of dust control and/or paving costs to be paid by Applicant & Lessee based upon the County's determination of the Applicant & Lessee's responsibility for such work. County will determine the proportionate share of dust control and/or paving costs to be paid by Applicant & Lessee based upon then current truck trip counts that identify traffic loading due to Applicant & Lessee - sourced traffic. The amount and extent of dust control and/or paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. B. County Road Maintenance Requirements: 1.0 Obligation to Maintain Current and Future Haul Routes: Applicant & Lessee 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 hauling to and from the Applicant & Lessee's permitted facilities. County will determine the cost of repairs to be paid by Applicant & Lessee based upon the County's determination of the Applicant & Lessee's responsibility for such work. County will determine the proportionate share to be paid 2of 9 C \Userslpuw360\Appuatn\Locat\Microsoft\Windows\Temporary Internet tiles\Content.Outlookl8E8248CV\USR14-0048 Gurtler-KMG Final RMA(2-12-15).docx 4482397 Pages: 2 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO ikb f'Ll'i'i 11111 by Applicant & Lessee based upon then current truck trip counts that identify traffic loading due to Applicant & Lessee -sourced traffic. Should Applicant & Lessee's site activities and/or should Applicant & Lessee's haul route circulation patterns change in the future so that County approves an alternate haul route, and all or a significant portion of Applicant & Lessee's sourced traffic no longer utilizes the above -described haul route and instead utilizes other portions of County roads. Applicant & Lessee's obligations set forth herein shall apply to 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 roadway damage caused by Project traffic 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. 1.1 Need for Immediate Repairs: In the event of damage to an Approved Haul 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 Applicant & Lessee of such Significant Damage. Applicant & Lessee 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 Applicant & Lessee identifies Significant Damage prior to receiving notice thereof from County, Applicant & Lessee 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). 1.2 Repair of Road: On or before December 31 of the calendar year in which County staff has determined through site analysis and/or pavement testing that a particular haul route road portion will require due to Project traffic paving measures in order to protect the public health, safety, and welfare, County shall notify Applicant & Lessee in writing that the improvements and/or 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, Applicant & Lessee shall submit Construction Plans and Cost Estimates to County for review. Applicant & Lessee 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. 1.3 In County's sole discretion, County may undertake the repairs and/or improvements. In which case, County will invoice the Applicant & Lessee for the cost of said repairs and/or improvements, and the Applicant & Lessee's payment will be due within thirty (30) days of receipt of such invoice. 2.0 Dust Control/Abatement (If Applicable): The Applicant & Lessee may be required to provide dust abatement along affected Haul Route Roads approximately two to five 3of9 C:\Users\puw3601AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\8E8248CV\OSR14-0048 Gurtler-KMG Final RMA(2-I2-15).docx 4482397 Pages: 3 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO iii rdispIipielemgrawh munagiFtit times per year, as determined by the County based upon the Project traffic. County will determine the proportionate share of dust control and/or paving costs to be paid by Applicant & Lessee based upon then current Equivalent Single Axle Load (ESAL) Counts that identify traffic loading due to Applicant & Lessee sourced traffic. The amount and extent of dust control will be determined by site -specific conditions at the time, as determined exclusively by County personnel. 3.0 Annual Road Inspection: County will conduct a road inspection annually with the cooperation of Applicant & Lessee. 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 Applicant & Lessee of the required roadway repairs will be given as soon as the data becomes available. 4.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road damage due to Project traffic increases beyond the point that repair of damage cannot maintain the road in a safe and usable condition, Applicant & Lessee shall pay a proportionate share of the cost of the entire project including engineering designs and construction plans based on the Applicant & Lessee's share of ESAL Counts using then current data on the haul route in the implementation of the above -mentioned improvements. County personnel alone shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. Notification to the Applicant & Lessee of the required roadway replacements will be given as soon as the data becomes available and typically takes place before the end of the year prior to the start of the replacement project, as described in Section B.1.0 above. C. General Requirements: 1.0 Release of Liability: Applicant & Lessee shall indemnify and hold harmless the County from any and all liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and description caused by, arising from, or on account of said design and construction of improvements completed by Applicant & Lessee or its agents, and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. 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. 2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Applicant & Lessee without the 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. 4of 9 C:\Userslpaw3601AppData\Local\MicrosoR\Windows\Temporary Internet Ftles\Content.Outlook\8E8248CV\USR 14-0048 Uurtler-KMU Final RMA(2-12-15).docx 4482397 Pages: 4 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII Bill In the event of sale of the Property, County may agree to release Applicant & Lessee in whole or in part from obligations under this Agreement. 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 Applicant & Lessee, and upon recording by the County, shall be deemed a covenant running with the land herein described. 3.0 County Engineer: 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. 4.0 Violation of Terms of. Agreement: If in County's opinion, Applicant & Lessee has violated any of the terms of this Agreement, County shall notify Applicant & Lessee of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which County believes constitute the violation. Applicant & Lessee 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 there has been a violation of the terms of this Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of this Agreement. Revocation of Applicant & Lessee's land use permits, as it now exists or may, from time to time, be amended is a remedy which County may impose. If Applicant & Lessee does not perform as outlined in this Agreement such non-performance will constitute a violation of Applicant & Lessee's land use permits granted by County, and County will take whatever remedial measures it deems necessary, against Applicant & Lessee. In addition to any other remedy available to the County in law or equity, a failure to comply with this Agreement shall be considered grounds for setting a probable cause hearing according to the procedures described in Section 2-4-40 of Weld County Code. D. Termination of Agreement: 1.0 Termination Event: This Agreement shall terminate upon the earliest of the following events: 1.1 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Operator's complete cessation of all permitted activities. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release constitute a Termination. Operator shall provide written notice to Applicant & Lessee and County of said cessation of activity, which County shall then verify. If written notice is not provided to County, Termination of this Agreement shall not occur until County has determined that the Applicant & Lessee's Use by Special Reviews are inactive, which shall be three (3) years following County's observance of the cessation of activities, as provided in Sec. 23-2-200.E of the Weld County Code. 2.0 Termination Procedures: Sof 9 Maas Internet Files\Content.Outlook\8E8248CV\USR 14-0048 Gurtler-KMG Final RMA(2-I2-I5).docx 4482397 Pages: 5 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 11111 2.1 Termination Procedures Following Cessation of Permit Related Activities: Following the events outlined in paragraph 1.1 above, County shall conduct its annual road inspection. Said road inspection shall be conducted on or before May 31 following the announcement or determination of the cessation of permit related activities on the Property. The results of the inspection shall be delivered in writing to the Applicant & Lessee and Operator. If the County determines that pursuant to the terms of this Agreement, the Operator must complete any of the improvements and/or road maintenance obligations outlined herein, said obligations must be completed within a reasonable period of time thereafter, but in no event later than six (6) months following the determination that permit related activities have ceased. 3.0 Consequence of Termination Pursuant to Section C.4.0: In the event that activities related to Applicant & Lessee's permitted facilities cease as a result of the revocation of the permit, neither Applicant & Lessee nor Operator shall be released from its obligations under this Agreement. Only after Applicant & Lessee's successful completion of all repairs or improvements required under this Agreement, in the County's sole discretion, deemed necessary to preserve public interests will the Applicant & Lessee be released from any of the obligations imposed by the terms of this Agreement. G. 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. II. Enforcement: If, in the County's opinion, Applicant & Lessee has violated any of the terms of this Agreement, County shall notify Applicant & Lessee of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which the County believes constitute violation. Applicant & Lessee 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 a violation of the terms and conditions of this Agreement still exists (despite cure), County may enforce by any legal means, including, but not limited to, legal action for equitable or monetary relief filed in the Weld District Court, execution upon submitted collateral (if applicable), and/or administrative action of the County to suspend or revoke the underlying land use permit or approval pursuant to the procedural provisions of Section 2-4-40 of the Weld County Code. Violations of the terms and conditions of this Agreement include, but are not limited to, violations of the agreements Applicant & Lessee must enter into as required by this Agreement, and/or failure to enter into such agreements in a timely manner. I. 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. J. Authority to Sign: Each person signing this Agreement represents and warrants that he or 6of9 C:\L)sers\puw360\AppData\Local\Microsoft\WindowslTernporary Internet Files\Content,Otrtlookl8E8248CV\USRI4-0048 Gurtler-KMG Final RMA(2-12- I 5).docx 4482397 Pages: 6 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO u n�t��r ht �h 1,1K�I i�Il 11111 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, Applicant & Lessee shall provide the County with proof of Applicant & Lessee's authority to enter into this Agreement within five (5) days of receiving such request. 97 Pages: 7 of 10 04/8193/2019 11:28 AM R Fee:$0.00 $0.00 Carly Koppes, Clerk and Recorder, Weld County, Co IIII ��G�IL'�M��1�rLl��r�li4ii�l� �� III 7of 9 C:\Userslpuw360\AppData\LocallMicrosoft\Windows\Temporary Internet Files\Content.Outlook\8E8248CV\USR14-0048 Gurtler-KMG Final RMA(2-12-I5).doex IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPLICANT REPRESENTATIVE (Kerr McGee Oil & Gas OnShore LP for the Russell Gurtler, Jr. Family Trust): SIGNATURE PRINTED NAME 1'kt itS L TITLE (If Applicable) STATE OF COLORADO County of Denver ) ) ) ss. tki 'Fad The foregoing instrument was acknowledged before me this /2 day of 201f:by 14,IRC tilasnyi J .VARRA NOTARY PUBLIC STATE OF COLORADO Notary Public NOTARY ID 20014010425 MY • $0IQN 0412012017 M'y c v(�uifl 'Blair �xp t cs. .`1 '. azor Lessee (Kerr-McGee Oil & Gas Onshore, LP): SIGNATURE le l'L.SO �L PRINTED NAME TITLE (If Applicable) STATE OF COLORADO County of Weld 2� t Aficm ie\-11'l-rft ) ) ) ss. The foregoing instrument was acknowledged before me this /2 day of i r 20If, by 1.14e W�TAI£�'►S � _ ink se PA . NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20014010425 MY'C a * EXPIRES 04120/2017 My uuu►unabilktlxpires: al. yd0470%7 Rof 9 C:\Users\puw360\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content. Outlook\8E8248CV\USR 14-0048 Gurtler-KMG Final RMA(2-12-I5).docx 4482397 Pages: 8 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII I��lJ+�4l��II'G��'«1�GM'�L�'�1F�Ttli�GM�i�YI�Jti �I III WELD COUNTY: SIGNATURE PRINTED NAME L TITLE Di rec ro r STATE OF COLORADO County of Weld tif P‘,1.71,'r ll rk s ss. The foregoing instrument was acknowledged before me this L day of her- , .20I 20i ; by :_.'brimAid WITNESS my hand and official seal. My commission Expires: -5-c.744 -I" 4482397 Pages: 9 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 9of Ci\Userslpuw360\AppData\Local\Microsofl\Windows\Temporary Internet Files\ContentOutlook\SE8248O/MR14-0048 Gurtler-KMG Final RMA(2-12-15).docx To fully execute for recordation, please note this Road Maintenance Agreement for USR14-0048, Russell Gurtler, Jr. Family Trust, c/o Kerr-McGee Oil and Gas Onshore, LP, has been presented to the Board of County Commissioners for review, approval and signing by the Chair; however, the agreement is effective October 1, 2015. Date: 744// 7/c20/ 9 ATTEST: ddiatit) v••t1 Weld nty Clerk to the =oard WELD COUNTY, COLORADO BOARD OF COUNTY COMMISSIONERS BY: Deputy rk o the 4482397 Pages: 10 of 10 04/19/2019 11:28 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO NYI �tif h I' II Mike Freeman Pro-Tem Hello