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BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC — USR17-0074
DEPARTMENT: Public Works DATE: February 27, 2019
PERSON REQUESTING: Tisa Juanicorena
Brief description of the issue:
The Department of Public Works received a request from the applicant, Wes Moser, Inc., c/o Rocky Mountain
Midstream, LLC, requesting that the Board of County Comt 'tissioners consider approving the Road Maintenance
Agreement for (USR17-0074). 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 USR17-0074, 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-Tem
Scott K. James
Barbara Kirkmeyer, Chair
Steve Moreno
Approve
Recommendation
Schedule as Regular
BOCC Hearing Item Other/Comments:
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2019-1177
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC — USR17-0074
THIS AGREEMENT is made thisa6t day of )"-NcHt.lr, 201 et, by and between Wes Moser,
Inc., c/o Rocky Mountain Midstream, LLC, a corporation organized under the laws of the State of Texas,
whose address is 7859 Walnut Hill Ln, Ste 335, Dallas, TX, 75230, hereinafter referred to in total 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."
WI'I'NESSETH:
WHEREAS, Property Owner is the owner of the following described property in the County of
Weld, Colorado:
Subdivision Exemption, SUBX17-0032; being part of the
E1/2 of Section 25, Township 3 North, Range 65 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
USR17-0074, and
WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic directly
associated with USR17-0074, for an extended period of time; and
WHEREAS, the County, and Property Owner 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
IN contained herein, the parties hereto promise, covenant and agree as follows:
▪ PART I: SITE SPECIFIC PROVISIONS
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B. Haul/Travel Routes: The Property Owner shall be financially responsible for its proportional
O3 share of the County's costs associated with maintaining and/or improving designated haul/travel routes.
▪ 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property:
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CC an. 1) East and west along CR 30.
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oca t- 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 30 and travel east -west
IL N m� for further dispersal. Any County roads used by traffic associated with USR17-0074 may become part of
- the established haul/travel routes.
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3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle
and axle configurations unless overweight permits have been applied for and granted.
4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the
above -mentioned haul/travel route for a limited period (six months or less), Weld County Public Works
may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved county
roads whenever possible. A deviation from the established haul/travel route lasting more than six (6) months
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.
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.
C. Maintenance Requirements:
1.0 Off -Site Dust Control/Abatement: The Property Owner is required to provide dust abatement
along affected haul route roads, as determined by the County. County will determine the proportionate share
of dust control to be paid by Property Owner. 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 reserves the right to install traffic counters on the driveway(s) of the Property Owner's facility. The
County will have sole responsibility for determination of the percentage of haul route traffic on all affected
roads.
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2.0 Obligation to Maintain Current and Future Haul Routes: Property Owner 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 to and from the Property. Should
Property Owner's site activities or vehicle circulation patterns change in the future so that County approves
an alternate haul route, and all or a significant portion of Property Owner's sourced traffic no longer utilizes
the above described haul route and instead utilizes other portions of County roads, Property Owner 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 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.
2.1 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 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
Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC - USR17-0074 - RMCA
Page 2 of 7
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).
2.2 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 paving measures in order to protect the public health, safety, and welfare,
and 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.
2.3 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 described in this Agreement.
3.0 Annual Road Inspection: County may conduct a road inspection annually with the cooperation of
Property Owner and all other Property Owner and/or Lessees who are required by County to participate in
road improvement/maintenance agreements. 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 becomes available.
4.0 Proportionate Share of Road Maintenance Responsibilities:
4.1 Property Owner shall pay its Proportionate Share of costs of dust control/abatement, paving,
repairs, maintenance, improvements, or future road replacement of any particular Haul Route
Road. Property Owner's Proportionate Share shall be based upon the percentage of traffic on
the road that is attributable to Property Owner's facility. County personnel will determine the
percentage based on then current Equivalent Single Axle Load (ESAL) Counts. Property
Owner shall not be responsible for traffic that is not sourced from the Property Owner's facility.
4.2 The County shall notify Property Owner of County's preliminary determination and assessment
of Property Owner's proportionate share of costs. 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 proportionate share of costs.
PART II: GENERAL PROVISIONS
A. General Requirements:
1.0 Permits. Property Owner must still apply for and abide by the terms of any necessary right-of-way
permits, grading permits, and building permits. No work may occur in the County's right-of-way without a
County -issued right-of-way permit and access permit.
Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC - USR17-0074 - RMCA
Page 3 of 7
2.0 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 said design and construction of the site specific Use
associated with USR17-0074, 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.
3.0 Liability for Damage to Road. Property Owner shall be financially responsible for any and all
damage caused to any Weld County Road as a result of the design and construction of the site specific Use
associated with USR17-0074, without regard to the negligence, or lack thereof, of Property Owner 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, Property Owner has violated
any of the terms of this Agreement, County shall so notify Property Owner 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. 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 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. 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. Unless informed in writing by the Property Owner
of cessation of activities, and verified by the County, cessation shall be presumed if the County
determines that the USR has been inactive for three (3) years.
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2.2 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.
2.3 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.
2.4 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.
3.0 Revocation of USR: Property Owner 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
Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC - USR17-0074 - RMCA
Page 4 of 7
reasonable discretion by proceeding with revocation under the then current provisions of the Weld County
Code.
4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this
Agreement, County may seek relief in law or equity by filing an action in the Weld District 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 "Property Owner" shall include any individual or entity, including an
"Operator", who is acts on behalf of the Property Owner regarding this Agreement.
2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole
or in part by Property Owner without the express written consent of County and the written agreement of
the party to whom the obligations under this Agreement are assigned. 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. 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 Property Owner, 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.
Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC - USRl7-0074 - RMCA
Page 5 of 7
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, Property Owner agrees that the Weld County
District Court shall have exclusive jurisdiction to resolve said dispute.
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 Contract Professional,
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, 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.
4477002 Pages: 6 of 7
03/28/2019 03:28 PM R Fee:$0.00
Carly Koppes, Clerk and Reoorder, Weld County, CO
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Wes Moser, Inc., c/o Rocky Mountain Midstream, LLC - USR17-0074 - RMCA
Page 6 of 7
PROPERTY O
Signatur
Name: John Moser
ER: Wes Moser, Inc.
Title: President, Wes Moser, Inc.
Date: /2/
STATE OF COLORADO
County of Weld
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The foregoing instrument was acknowledged before me thiab day of
201`k , by -101,%r\ Most. -r,
WITNESS my hand and official seal.
otary Public
OPERATOR/LE SEE: Rocky Mo ntain Midstream, LLC
Signature:( /
Name: Blaine Pritchett
Title: Projects Manager
STATE OF COLORADO
County of Weld
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Date:
The foregoing instrument was acknowledged before me thisi2 6 day o
201°1, byTZ>\o:,/cRMN
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WITNESS my hand and official seal.
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BOARD OF COUNTY COMMISSIONERS
W D COUNTY, COL • 0
WELD COUNTY:
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