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Home My WebLink About20192269.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Road Maintenance Agreement for: SEMA Construction, Inc. — TAP19-0022 DEPARTMENT: Public Works DATE: May 16, 2019 PERSON REQUESTING: Tisa Juanicorena Brief description of the issue: The Department of Public Works received a request from the applicant, SEMA Construction, Inc., requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for (TAP19-0022). 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 Town of Milliken, and the Weld County Temporary Access Permit, as determined by the Weld County Department of 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 TAP 19-0022, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Schedule as Regular Recommendation BOCC Rearing Item Other/Comments: Sean P. Conway Mike Freeman, Pro-Tem Scott K. James Barbara Kirkmeyer, Chair Steve Moreno Antx2_,„-A± 9 cc:Pw(Tol£P), PL(IKR), 0Cot aH / 19 eeatif‘a-aciii)) 2019-2269 .1502P ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS SEMA Construction, Inc. — TAP19-0022 THIS AGREEMENT is made this _16_ day of May, 2019_, by and between SEMA Construction, Inc., a corporation organized under the laws of the State of Colorado, whose address is 7353 S. Eagle St, Centennial, CO 80112, hereinafter referred to as "SEMA," 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, SEMA is the lessee for the following described property in the County of Weld, Colorado: Lot B of Recorded Exemption, RE -3706; being part of the N1/2 of Section 18, Township 4 North, Range 66 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, to operate as desired, SEMA Construction, Inc. received notification from the Weld County Department of Planning Services regarding requirements from internal County agencies for the following: Flood Hazard Development Permit, Access Permit, and to enter into a Road Maintenance Agreement in cooperation with Haul routes as approved by the County and the Town of Milliken, and WHEREAS, SEMA acknowledges that final approval is conditional upon SEMA's funding 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: SEMA shall be financially responsible for its proportional 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) Shortest distance from the access location on CR 46 to CR 25 for further dispersal. 2) Truck traffic MAY NOT travel down CR 46 to CR 21 or the reverse thereof. 2.0 Haul trucks/traffic shall enter and exit the site at the approved access(es) on CR 46 and travel the shortest distance to CR 25 for further dispersal. Any County roads used by traffic associated with SEMA 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. 4498625 Pages: 1 of 7 06/19/2019 10:45 AM R Fee:$0.00 Carly Koppes. Clerk and Recorder.. Weld County.. CO Nr,«11Milll I�I��I�'f�ww'�� 1114 11i hill - TAP 19-0022 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 SEMA. 5.0 Haul Route Signage. SEMA 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: 2.0 Dust Control. SEMA shall be financially responsible for its proportional share of dust control on unpaved designated haul/travel routes after commencement of operation. The amount and extent of dust control will be determined by site -specific conditions, County personnel, and/or neighbor complaints. 2.1 Dust Control During Construction. If necessary, as determined by the County, SEMA 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. SEMA 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 SEMA of such Significant Damage. SEMA 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 SEMA identifies Significant Damage prior to receiving notice thereof from County, SEMA 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 paving measures in order to protect the public health, safety, and welfare, and the County has budgeted sufficient funds for the following calendar year to pay its share of the Off -Site Improvement/Repair Costs, County shall notify SEMA 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, SEMA shall submit Off -Site Construction Plans and Cost Estimates to County for review. SEMA shall have sole responsibility for the completion of the repairs 4498625 Pages: 2 of 7 06/19/2019 10:45 AM R Fee:$0.00 Carly Koppes. Clerk and Recorder. Weld County, CO 11111 111111 Inc. - TAP 19-0022 of 7 and/or improvements 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 and/or improvements. SEMA's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in this Agreement. SEMA will be invoiced accordingly for those proportional share costs. 6.0 Calculation of SEMA's Proportional Share of Costs. The County shall notify SEMA of County's preliminary determination and assessment of SEMA's proportional share of costs of maintenance, repair, or improvements to SEMA's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide SEMA with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider SEMA's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of SEMA's proportional share of costs. SEMA 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 annually with the cooperation of SEMA as required by County to participate in road improvement/maintenance agreements for the haul routes designated in this Agreement. As a result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall further determine what road repair/improvement/maintenance work is to be performed during that construction season. Notification to SEMA of the required roadway repairs will be given as soon as the data become available. 8.0 Notification. The County shall notify SEMA of County's preliminary determination and assessment of SEMA's proportionate share of costs of maintenance, repair, or improvements to SEMA's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide SEMA with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider SEMA's input prior to making a final determination and assessment. PART II: GENERAL PROVISIONS A. Collateral: 1.0 General Requirements for Collateral. If applicable, SEMA shall provide to County collateral to guarantee all of SEMA'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. SEMA 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. TAP19-0022 must be adhered to, extended and/or renewed based on the provided timeline. The terms of this agreement parallel the terms of the active temporary access permit. Once the site and access are closed and reclamation completed and verified by inspection, this agreement will cease at that time. 4498625 Pages: 3 of 7 c. - TAP19-0022 06/19/2019 10:45 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 77 VIIIk!rarVii«I4 Iih% wiLI''Tr,11'4,It'll 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, SEMA has violated any of the terms of this Agreement, County shall notify SEMA of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which County believes constitute the violation. SEMA 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 SEMA to be in breach of this Agreement. 2.0 Remedies for Breach by SEMA. In the event that County determines that SEMA 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 Permits. SEMA acknowledges that failure to comply with the terms of this Agreement constitutes cause to revoke any of the aforementioned 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. 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 SEMA's complete cessation of all activities as permitted, 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 SEMA of cessation of activities, and verified by the County, cessation shall only be presumed if the County determines that the site has been inactive for three (3) years. SEMA shall not be entitled to a release of Project or Warranty Collateral unless and until the improvements required by this Agreement are completed. 3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's execution of a new Improvements Agreement with a new operator who has purchased the Property 4498625 Pages: 4 of 7 06/19/2019 10:45 AM R Fee:$0.00 Carly Koppes: Clerk and Recorder. Weld County. CO L, Inc. - TAP19-0022 4 of 7 1111 II II I or has assumed the operation of the business, as permitted, and intends to make use of the rights and privileges available to it. 3.4 Completion of Operation: This Agreement shall terminate following SEMA's completion of operations and SEMA shall notify the County of completion. D. General Provisions: 1.0 Successors and Assigns. 1.1 SEMA 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, SEMA's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with the successor owner of the property. 1.2 County's rights and obligations under this Agreement shall automatically be delegated, transferred, or assigned to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement. 2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 4.0 No Third -Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and incorporated herein, contains the entire agreement between the parties with respect to the subject matter 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 4498625 Pages: 5 of 7 06/19/2019 10:45 PM R Fee:$0.00 Carly Koppes: Clerk and Recorder, Weld County, CO IPA *Mil 't'`1%k' 'ili"i, II II - TAP 19-0022 .7 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 SEMA, 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. SEMA 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 governing occupational safety and health. 10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra- judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. If requested by the County, SEMA shall provide the County with proof of SEMA's authority to enter into this Agreement within five (5) days of receiving such request. 12.0 Acknowledgment. County and SEMA 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 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. 4498625 Pages: 6 of 7 06/19/2019 10:45 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO •III POFaPl5firi i ii I), till SEMA Construction, Inc. - TAP19-0022 Page 6 of 7 SEMA Construction, Inc.: By: Name: ,J 67Ets Title: PRoStcT STATE OF COLORADO County of Arapahoe Date: J — /c ss. The foregoing instrument was acknowledged before me this 16 day of May 2019_, by l fcvi 6e!Se WITNESS my hand and official seal. %. Notary Public DANA ALLEN Notary Public State of Colorado • icrary ID #20064043862 ommission Expires 10-25-2022 WELD COUNTY: ATTEST: Weld Po ty Clerk to the Bo BY: BOARD OF COUNTY COMMISSIONERS Wh LD COUNTY, COLORADO 4498625 Pages: 7 of 7 06/19/2019 10:45 AM R Fee:$0.00 Carly Koppes: Clerk and Recorder, Weld County. CO "EH SEMA Construction, Inc. - TAP19-0022 Page 7 of 7 Cheryl Hoffman From: Sent: To: Subject: Attachments: Tisa Juanicorena Wednesday, May 22, 2019 10:34 AM Cheryl Hoffman; Dawn Anderson; Elizabeth Relford; Esther Gesick; Jay McDonald; Karla Ford BOCC PA REVIEW IA SEMA Constr Signed IA and PA SEMA Constr TAP19-0022.pdf ATTACHED BOCC PA REVIEW Improvements Agreement: Road Maintenance Agreement Case/Applicant: TAP19-0022 SEMA Construction Please note: Cheryl, this is not linked to a planning case, it is linked to a Temporary Access Permit. Thanks Karla!! Tisa Juanicorena Development Review Public Works 1111 H Street Greeley, CO 80634 tivanicorena@weldpov.com tivanicorena@co.weld.co.us tel: 970.400.3778 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. 1 Hello