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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:
Colorado Sand Company LLC — AP 19-00232
DEPARTMENT: Public Works DATE: July 10, 2019
PERSON REQUESTING: Tisa Juanicorena
Brief description of the issue:
The Department of Public Works received a request from the applicant, Colorado Sand Company LLC, requesting
that the Board of County Commissioners consider approving the Road Maintenance Agreement for
(AP19-00232). 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 Temporary Pilot Project as approved by the Director of
Planning Services.
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 API 9-00232, 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 Hearing Item Other/Comments:
Sean P. Conway
Mike Freeman, Pro-Tem
Scott K. James
Barbara Kirkmeyer, Chair
Steve Moreno
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2019-3540
PL. 015-020
TEMPORARY ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Colorado Sand Company LLC — AP19-00232
THIS AGREEMENT is made this day of� 2019, by and between Colorado Sand
Company LLC, a corporation organized under the laws of the ate of Colorado, whose address is 2001
Kirby Drive, Suite 360, Houston, Texas 77019, hereinafter referred to as "Owner," authorized to do
business in the State of Colorado, and the County of Weld, a body corporate and politic of the State of
Colorado, by and through its Board of County Commissioners, whose address is 1150 "O" Street, Greeley,
Colorado 80631 hereinafter referred to as "County."
WITNESSETH:
WHEREAS, Owner is the lessee of the following described property in the County of Weld,
Colorado:
Part of the SW1/4 of Section 12, Township 2 North,
Range 64 West of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Owner has received approval from the Director of Planning Services for a Temporary
Pilot Sand Operation, accessing AP19-00232, and
WHEREAS, Owner acknowledges that the final approval is conditional upon Owner's agreement
and potential funding of road maintenance as determined by the Department of Public Works and as
described in this Agreement for the duration of the operation.
NOW, THEREFORE. IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant and agree as follows:
PART I: SITE SPECIFIC PROVISIONS
A. Haul Routes: The Owner 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:
8-sei 1) Exit site on CR 59 to CR 18 to Market Street in Keenesburg to State Highway 76. Traffic will
return to the site in the same route.
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2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 59 and travel the
m m referenced haul route for further dispersal. Any County roads used by traffic associated with AP19-00232
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ma..,- may become part of the established haul/travel routes.
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°LL 8 3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle
�'fxix� and axle configurations unless overweight permits have been applied for and granted.
am m� 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
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may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved county
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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 Owner.
5.0 Haul Route Signage. 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.
B. Maintenance Requirements:
1.0 Off -site recurring maintenance, if applicable, as required by the Board.
2.0 Repair. Owner 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.
3.0 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 Owner of such Significant Damage. 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 Owner
identifies Significant Damage prior to receiving notice thereof from County, Owner 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).
4.0 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 Owner in writing that the Off -Site Improvements/Repairs
shall be undertaken.
5.0 Calculation of Owner's Proportional Share of Costs. The County shall in all instances determine
Owner's proportionate share of any costs due hereunder in good faith. The County shall notify Owner of
County's preliminary determination and assessment of Owner's proportional share of costs of maintenance,
repair, or improvements to Owner's designated haul/travel routes. Prior to County's final determination and
assessment, County shall provide Owner with a reasonable opportunity to review, comment upon and
supplement County's data, collection methodology, and determinations. The County shall review and
consider Owner's input prior to submitting an invoice. The County shall have sole responsibility for
determination of Owner's proportional share of costs. Owner agrees to pay such proportional share of costs
within 30 days of receiving an invoice from County.
6.0 Routine Road Inspection. County may conduct a road inspection with the cooperation of Owner
and all other Owners and/or Lessees who are required by County to participate in road
improvement/maintenance agreements for the haul routes designated in this Agreement. As a result of the
Colorado Sand Company LLC - AP19-00232 - RMA19-0013
Page 2 of 6
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 Owner of the required roadway repairs will be given as soon as the data become available.
7.0 Notification. The County shall notify Owner of County's preliminary determination and assessment
of Owner's proportionate share of costs of maintenance, repair, or improvements to Owner's designated
haul/travel routes. Prior to County's final determination and assessment, County shall provide Owner with
a reasonable opportunity to review, comment upon and supplement County's data, collection methodology,
and determinations. The County shall review and consider Owner's input prior to making a final
determination and assessment.
PART II: GENERAL PROVISIONS
A. Access and Right -of -Way Permits:
1.0 Access Permits. Owner 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.
B. Enforcement and Remedies:
1.0 Violation of Terms of Agreement. If in County's opinion, Owner has violated any of the terms of
this Agreement, County shall notify Owner of its belief that the Agreement has been violated and shall state
with specificity the facts and circumstances which County believes constitute the violation. Owner 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
Owner to be in breach of this Agreement.
2.0 Remedies for Breach by Owner. In the event that County determines that Owner 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 Use Permit. Owner acknowledges that failure to comply with
the terms of this Agreement constitutes cause to revoke the Temporary Use Permit, and County
may exercise this option in its sole discretion by proceeding with revocation under the then current
provisions of the Weld County Code.
Colorado Sand Company LLC - AP19-00232 - RMA19-0013
Page 3 of 6
3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following
events:
3.1 Expiration of Temporary Use Permit. County may terminate this agreement upon the
expiration of the Temporary Use Permit unless the Director of the Department of Planning Services
has agreed in writing to extend the underlying Temporary Use Permit. Owner agrees that this
Agreement is temporary in nature only, and that this Agreement shall not be considered to satisfy
any subsequent land use condition of approval requiring a permanent improvements agreement.
3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon
Owner's complete cessation of all activities permitted by the Temporary Use, including any clean
up or restoration required. A partial cessation of activities shall not constitute a Termination of this
Agreement, nor shall County's issuance of a partial release/vacation constitute a Termination.
Unless informed in writing by the Owner of cessation of activities, and verified by the County,
cessation shall only be presumed if the County determines that the Use has been inactive for three
(3) years. Owner 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 owner or operator who has purchased or
leased the Property or has assumed the operation of the business permitted by the County, and
intends to make use of the rights and privileges available to it through the then existing Temporary
Use.
3.4 Revocation of Temporary Use Permit. This Agreement shall terminate following County's
revocation of Owner's Temporary Use, except that the Owner shall only be released from this
Agreement after the successful completion of any required repairs.
D. General Provisions:
1.0 Successors and Assigns.
1.1 Owner 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, Owner's release of its obligations shall be
accomplished by County's execution of a new Agreement with the successor owner of the property,
as needed.
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.
Colorado Sand Company LLC - AP19-00232 - RMA19-0013
Page 4 of 6
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 ofthis 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 Owner, 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.
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9.0 Release of Liability. 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 the design and construction of improvements and in connection
with Owner's or its agents use of the haul/travel routes, and pay any and all judgments rendered against the
County on account of any such suit, action or claim, and notwithstanding Section 8.0 above, together with
all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim, except
for any liability, loss, or damage arising from the negligence, intentional torts or the gross negligence of the
County or its employees, officers or agents. 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, Owner
Colorado Sand Company LLC - AP19-00232 - RMA19-0013
Page 5o'6
shall provide the County with proof of Owner's authority to enter into this Agreement within five (5) days
of receiving such request.
12.0 Acknowledgment. County and Owner 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.
OWNER: Colorado Sand Company LLC
By:
Name: IUGLt1,&( Pct. q-i0V\
Title: C PC)
STATE OF TEXAS
County of Harris
Date:
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The foregoing instrument was acknowledged before me this VV+kday of S -Q ,
201 A, by ®0W; UI At 0(/\ Ci FO
WITNESS my hand and official seal.
Co[o(44 SCfrici cormiluAy
c4,rte i
Notary Public
WELD COUNTY:
ATTEST: /1.)
Weld o ►n Cl-' to the
BY.
Deputy rk to the
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLIRADO
arbara Kirkmeyer,
Colt � `c t;� 1. �*''LC - AP19-00232 - RMA19-0013
Page 6 of 6
2 NY
Contract Form
New Contract Request
Entity Information
Entity Name*
COLORADO SAND COMPANY LLC
Entity ID*
0041169
Contract Name*
ROAD MAINTENANCE AGREEMENT AP19-90232
Contract Status
DONE
❑ New Entity?
Contract ID
3026
Contract Lead*
TJUANICORENA
Contract Lead Email
tjuar?•icorena(r�co weld co us
Contract Description*
ROAD NTENANCE AGREEMENT AP19-00232 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type *
AGREEMENT
Amount*
$000
Renewable *
NO
Automatic Renewal
Grant
Department
PUBLIC'\'ORKS
Department Email
CM-
PublIcW arks@weldgov com
Department Head Email
CM -Public Vvc>rks-
DeptHead@veidgo ,_. corn
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COUNTYA 1 I ORNEY@WELD
GOV.CCM
Requested
Date*
08/07/2019
Parent Contract ID
Requires Board Approval
YES
Department Project #
Due Date
00//03/2019
Will a work session with BOCC be required?*
NO
Does Contract require Purchasing Dept. to be included?
NO
If this is a renewal enter previous Contract ID
If this is part of a MSA enter MSA Contract ID
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
On Base
Contract Dates
Effective Date
Termination Notice Period
Review Date* Renewal Date
0811212020
Committed Delivery Date Expiration Date*
08!18)2021
Contact Information
Contact Info
Contact Name
Purchasing
Purchasing
CONSENT
Approval Process
Department Head
JAY MCDONALD
DH Approved Date
07r26/2019
Final Approva
BOCC Approved
YES
BOCC Signed Date
95:05/2019
BOCC Agenda Date
08/05/2019
Originator
TJUANICCRENA
Contact Type Contact Email
Finance
CONSENT
Finance AI
07;26/2019
Contact Phone 1 Contact Phone 2
Purchasing oved Date
07/26/2019
Date
Tyler Ref I
2019-3540
Legal Counsel
CONSENT
Legal Counsel
071126(201 9
oved Date
Hello