HomeMy WebLinkAbout20181466.tiffet-i.ti,oe-e- /DI /4,5'
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item — Road Maintenance Agreement for:
Discovery DJ Services, LLC — USR 17-0068
DEPARTMENT: Public Works DATE: 2/12/2018
PERSON REQUESTING: Evan Pinkham
Brief description of the issue:
The Department of Public Works received a request from the applicant, Discovery DJ Services, LLC,
requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for
the pipeline (USR17-0068).
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 "Improvements & Road Maintenance Agreement According To Policy
Regarding Collateral For Improvements", are found to be acceptable.
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 Improvements & Road Maintenance Agreement According To Policy Regarding
Collateral For Improvements for (USR17-0068), and that this item be placed on the next regularly scheduled
BOCC Hearing, as part of the Consent Agenda.
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro -Tern
Steve Moreno, Chair
Approve
Recommendation
VVI. CI?l'rtiL
Schedule as Regular
BOCC Hearing Item Other/Comments:
&e- 04-46-1e'Lad
7-/i 401
2018-1466
7°� a 507A
Karla Ford
From:
Sent:
To:
Subject:
Steve Moreno
Monday, April 30, 2018 11:31 AM
Karla Ford
Re: Passaround for USR17-0068
Agree with recommendation
Sent from my iPhone
On Apr 30, 2018, at 11:00 AM, Karla Ford <kford@w ldgav: conr wrote:
Please review
Karla Ford R
Office Manager, Board of Weld County Commissioners
1150 0 Street, P.O. Box 758, Greeley, Colorado 80632
.: 970.336-7204 :: kfortweldaovcom :: www.weldgov.com :.
My working hours are Monday -Thursday 7:00a.m. 4:40 p.m.
Friday 7:00a.m. - Noon
<image004.jpg>
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to
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this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying,
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recipient is strictly prohibited.
From: Evan Pinkham
Sent: Tuesday, April 24, 2018 9:12 AM
To: Karla Ford <kford@weldgov.cotn>
Cc: Esther Gesick <egesick@weldgov.corn>; Cheryl Hoffman <clo manCr.�►,weldggov.com>; Tisa
Juanicorena <tjuanicorena@wekJ.gov.com>; Jay McDonald <irncdonald a welds ov.co n>; Dawn Anderson
<dranderson@weldeov.corn>; Elizabeth Relford <erelford@weldeov.com>
Subject: Passaround for USR17-0068
Karla,
Can you please send this for passa round?
Thanks!
Evan Pinkham
Development Review Planner
Weld County Public Works
1111 H Street, P.O. Box 758
Greeley, CO 80632
(970)400-3727
1
ROAD MAINTENANCE AGREEMENT
Discovery DJ Services, LLC — USR17-0068
THIS AGREEMENT is made this 8th day of February, 2018, by and between Discovery DJ
Services, LLC, hereinafter referred to as "Property Owner," and the County of Weld, by and through
its Board of County Commissioners, hereinafter referred to as "County."
WITNESSETH:
WHEREAS, Property Owner is the owner of the property described in the application to Use
by Special Review USR17-0068, referred to as "the Property," which has been approved by the
County, and
WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic
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 contained herein, the parties hereto promise, covenant and agree as follows:
Part 1 (of 2): Site Specific Provisions
A. Reserved
B . HauUTravel Routes
1.0 Off -Site Dust Control/Abatement: The Property Owner is required to provide dust abatement
along affected Haul Route Roads within 1/2 mile of the access location of the pipeline, 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.
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.
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Carly Koppes, Clerk and Recorder, Weld County, CO
M;LA1E M. �tif W.
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ocoi1- / Wo6
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 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
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Carly Koppes, Clerk and Recorder, Weld County, CO
ill RI' W 'I#'i ' li'd irMhnaiiilliiN K�IiKm'i4Wyh ii 11
Page 2 of 6
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 2: 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.
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
pipeline(s), 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.
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.
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.
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Carly Koppes, Clerk and Recorder, Weld County, CO
Kiri!kV'���i �I Mil k' Atli' 11111
age 3 of 6
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.
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 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
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Carly Koppes, Clerk and Recorder, Weld County, CO
1111 FAT Hill PAM: AKA& II II
'age 4 of 6
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.
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.
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Carly Koppes, Clerk and Recorder, Weld County, CO
'i s� � �w��i�� �i III
Page 5 of 6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.
PROPERTY OWNERS:
SIGNATURE fil 41 T `
PRINTED NAME: Matthew T. Berghorn
TITLE: Vice President, Construction and Engineering
STATE OF COLORADO
SS.
County of Weld
The foregoing instrument was acknowledged before me this 8t'' day of February, 2018, by
Matthew T. Berghorn, Vice President, Construction and Engineering.
WITNESS my hand and official seal.
TOMMY WAYNE 8 REdENOOST
NOTARY PUBLIC, sTATE OF coLrORA00
NOTARY 10 20174042063
PaVCOMMISSION EXPIRES OCTOBER 10, 2021
ATTEST:
Jei•
Weld C • ty Clerk to the Board
BY:
Deputy Cl k t. the Bo
crr
Notary blic
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
eve Moreno, Chair
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Carly Koppes, Clerk and Recorder, Weld County, CO
dill P4ULJ'U 61MIL'IRY Ill II
MAY G 7 2018
Page 6 of 6
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Carly Koppes, Clerk and Recorder; Weld County; CO
I Pi, 111111
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LEGEND
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Carly Koppes: Clerk and Recorder. Weld County. CO
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