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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:
Simon Contractors - Temporary Asphalt Batch Plant at SH 52 and CR 80
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, Simon Contractors, requesting that the
Board of County Commissioners consider approving the Read Maintenance Agreement for (Temporary Asphalt
Batch Plant at SH 52 and CR 80). 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 as determined by the Administrative approval of the
Departments of Planning Services and Public Works.
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 Simon Contractors -
Temporary Asphalt Batch Plant at SH 52 and CR 80, 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
- �9
Approve Schedule as Regular
Recommendation
BOCC Hearing Item Other/Comments:
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2019-1176
A025;2)0
ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Simon Contractors — Temporary Asphalt Ijatch Plant at SH 52 and WCR 80
THIS AGREEMENT is made this 'r11 -
y of,
2019, by and between Simon
Contractors, a corporation organized under the laws of the State of Colorado, whose address is 6215 Clear
Creek Parkway, Cheyenne, WY 82007, hereinafter referred to as "Simon," 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, Simon is the lessee of the following described property in the County of Weld,
Colorado, approximately ten (10) acres to be utilized for a Temporary Asphalt Batch Plant:
NW1/4 of Section 19, Township 7 North, Range 57 West
of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Simon has received administrative approval from the Department of Planning
Services for a Temporary Asphalt Batch Plant, and
WHEREAS, Simon acknowledges that the final approval is conditional upon Simon's funding of
the road maintenance described in this Agreement for the duration of the Temporary Asphalt Batch Plant.
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: Simon shall be financially responsible for its 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:
1) East and west along CR 80.
2) North and south along SH 52.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 80 and travel east -west to
SH 52 for further dispersal. Any County roads used by traffic associated with this Temporary Asphalt Batch
Plant 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.
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
Simon Contractors - RMA - Temporary Asphalt Batch Plant at SH52 and CR 80
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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 Simon.
5.0 Haul Route Signage. Simon 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.
B. Maintenance Requirements:
1.0 Off -site recurring maintenance, if/when applicable, as required.
2.0 Dust Control. Simon shall be financially responsible for dust control on CR 80 for the duration of
the Temporary Asphalt Batch Plant. The amount and extent of dust control will be determined by
site -specific conditions, County personnel, and/or neighbor complaints.
2.1 Dust Control During Construction and/or related to Complaints. If necessary, as
determined by the County, Simon 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.
3.0 Maintenance/Repair. Simon shall be financially responsible for installation of Weld County
approved surface gravel on CR 80, as needed throughout the duration of the temporary permit. Maintenance
of WCR 80, including but not limited to, dust abatement and grading, will be required during the life of the
temporary permit. As a requirement to receive approval to access on CR 80, and due to safety concerns, it
is required to upgrade/improve the turning radii (minimum of 65 feet) on WCR 80 at the intersection with
SH 52 and to improve CR 80 to a width of 26 feet with four (4) inches of surface gravel from SH 52 to the
east side of the entrance and then provide a safe taper down to the existing gravel condition beyond the
access location.
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 Simon of such Significant Damage. Simon
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 Simon identifies
_ Significant Damage prior to receiving notice thereof from County, Simon may commence repair of such
dE Significant Damage and shall concurrently notify County of the extent, type, timing, materials and quality
of repair (i.e. temporary versus permanent).
m3 t 5.0 Road Inspection. County may conduct a road inspection with the cooperation of Simon for the haul
routes designated in this Agreement. As a result of the scheduled inspection, County, in its sole discretion,
o LL o - shall determine actual conditions and shall further determine what road repair/improvement/maintenance
a��- work is to be performed -during that construction season. Notification to Simon of the required roadway
repairs will be given as soon as the data become available.
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IL" e Y 6.0 Notification. The County shall notify Simon of County's preliminary determination and assessment
m"A of Simon's costs of maintenance, repair, or improvements to Simon's designated haul/travel routes. Prior
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to County's final determination and assessment, County shall provide Simon with a reasonable opportunity
to review, comment upon and supplement County's data, collection methodology, and determinations. The
County shall review and consider Simon's input prior to making a final determination and assessment.
PART II: GENERAL PROVISIONS
A. Collateral:
1.0 General Requirements for Collateral. If applicable, Simon shall provide to County collateral to
guarantee all of Simon's obligations under this Agreement: Collateral acceptance and release is governed
by the Weld County Code. No collateral is required at this time.
B. Access and Right -of -Way Permits:
1.0 Access Permits. Simon 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, Simon has violated any of the terms of
this Agreement, County shall notify Simon of its belief that the Agreement has been violated and shall state
with specificity the facts and circumstances which County believes constitute the violation. Simon 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
Simon to be in breach of this Agreement.
2.0 Remedies for Breach by Simon. In the event that County determines that Simon 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.
2.3 Revocation of Temporary Permit. Simon acknowledges that failure to comply with the
terms of this Agreement constitutes cause to revoke permits, and County may exercise this option
in its sole discretion by proceeding with revocation under the then current provisions of the Weld
County Code.
4477001 Pages: 3 of 6
03/28/2019 03:28 PM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
lib '11 R Ali/lidalyi, "Ill
y Asphalt Batch Plant at SH52 and CR 80
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3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following
events:
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
Simon's complete cessation of all activities permitted by the project 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.
3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's
execution of a new Improvements Agreement with Simon or operator who has purchased the
Property or has assumed the operation of the business permitted by the temporary use, and intends
to make use of the rights and privileges available to it through the temporary permit.
3.4 Revocation of Temporary Permit. This Agreement shall terminate following County's
revocation of Simon's Temporary Asphalt Batch Plant Permit, except that Simon shall only be
released from this Agreement after the successful completion of all improvements or maintenance
required under this Agreement, which may be completed by County and invoiced to Simon should
Simon fail to complete such improvements.
3.5 Completion of Project: This Agreement shall terminate following Simon's completion of
the project as related to the Temporary Asphalt Batch Plant Permit authorized by the underlying.
Simon shall notify the County of completion.
D. General Provisions:
1.0 Successors and Assigns.
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1.1 Simon 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, Simon'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.
Simon Contractors - RMA - Temporary Asphalt Batch Plant at SH52 and CR 80
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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
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 Simon, 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. Simon 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, 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 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
S governing occupational safety and health.
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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
m o shall be null and void.
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mif)� 11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is
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LL V- °1 L duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and
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towc. warrants to the other that the execution and delivery of the Agreement and the performance of such party's
1• 2f obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement
d o - e binding on such party and enforceable in accordance with its terms. If requested by the County, Simon shall
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provide the County with proof of Simon's authority to enter into this Agreement within five (5) days of
receiving such request.
12.0 Acknowledgment. County and Simon 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.
13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential
conflict between any term in this Agreement, 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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Nice, :Jim
SIMON CONTRACTORS
By:
Name: .7".a Imo., Pine Gl a
Title: la,,wfif< r 14- f tanac3er
STATE OF COLORADO
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County of Weld
Date: �e6,vctr�
SS.
Jeannette Zimmerman - Notary Public
County of
Laramie
State of
Wyoming
M Commission Expires June 20, 2019
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The foregoing instrument was acknowledged before me this day of �ean.•k
201°A, by 'ohh Q t' c \cO
WITNESS my hand and official seal.
WELD COUNTY:
ATTES
Weld
Clerk to the B t and
Deputy C
Simon Contractors - RMA - Temporary Asphalt Batch Plant at SH52 and CR 80
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BOARD OF COUNTY COMMISSIONERS
W, D COUNTY, C S L P• DO
Barbara Kirkmeyer, i hair . R 2 52013
02o/94776
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