HomeMy WebLinkAbout20182840.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
Discovery DJ Services, M C — USR 17-0078
DEPARTMENT: Public Works DATE: 8/2212018
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
(USR 17-0078). 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 "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 I. 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 USR 17-0078, and that this item be placed on the next regularly scheduled BOCC
f fearing, as part of the Consent Agenda.
Scan P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro -Tern
Steve Moreno, Chair
9-i--,)!
Approve
Recommendation
Mtn
Schedule as Regular
BOCC Hearing Item Other/Comments:
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2018-2840
601,5,3
ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Discovery DJ Services, LLC — USR17-0078
THIS AGREEMENT is made this 10th day of April, 2018, by and between Discovery DJ Services,
LLC, a corporation organized under the laws of the State of Colorado, whose address is 3601 Stagecoach
Road, Longmont, CO, 80504, hereinafter referred to as "Lessee," 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."
WITNES SETH:
WHEREAS, Lessee is the owner of the following described property in the County of Weld,
Colorado:
Subdivision Exemption, SUBX17-0030; being part of the SW1/4 of
Section 21, Township 1 North, Range 65 West of the 6' P.M., Weld
County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Lessee has received Board of County Commissioner approval of USR17-0078, and
WHEREAS, Lessee acknowledges that the final approval of USR17-0078 is conditional upon
Lessee 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 1: SITE SPECIFIC PROVISIONS
A. Haul Routes: The Lessee 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) North and south along CR 41.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 41 and travel north -south
for further dispersal. Any County roads used by USR17-0078 traffic 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 or
requests for one (1) or more deviations within a 12 -month period shall authorize the County to change the
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haul/travel routes designated herein, and provide notice to the Lessee.
5.0 Haul Route Signage. Lessee 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 Dust Control. Lessee 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 at the time, as determined exclusively by County
personnel. Dust abatement along the relevant haul/travel routes is expected to occur approximately two to
five times per year. Dust abatement is required for roads with more than 200 vehicles per day, per section
8-6-100 of the Weld County Code.
2.1 Dust Control During Construction. If necessary, as determined by the County, the Property
Owner 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 Repair. Lessee 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 Lessee of such Significant Damage. Lessee
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 such repair is
not commenced within such forty-eight (48) hour period, County shall have the right to draw on the Road
Maintenance Collateral and use such funds to perform such repair. If Lessee identifies Significant Damage
prior to receiving notice thereof from County, Lessee 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 Lessee 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, Lessee shall submit Off -Site Construction Plans and Cost
Estimates to County for review. Lessee 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.
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5.1 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 determined in this Agreement. Lessee will be invoiced accordingly for those
proportional share costs.
6.0 Calculation of Lessee Proportional Share of Costs. The County shall notify Lessee of County's
preliminary determination and assessment of Lessee proportional share of costs of maintenance, repair, or
improvements to Lessee designated haul/travel routes. Prior to County's final determination and
assessment, County shall provide Lessee with a reasonable opportunity to review, comment upon and
supplement County's data, collection methodology, and determinations. The County shall review and
consider Lessee input prior to making a final determination and assessment. The County shall have sole
responsibility for determination of Lessee proportional share of costs. Lessee 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
Lessee and all other Property 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
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 Lessee of the required roadway repairs will be given as soon as the data become
available.
8.0 Notification. The County shall notify Lessee of County's preliminary determination and assessment
of Lessee proportionate share of costs of maintenance, repair, or improvements to Lessee designated
haul/travel routes. Prior to County's final determination and assessment, County shall provide Lessee with
a reasonable opportunity to review, comment upon and supplement County's data, collection methodology,
and determinations. The County shall review and consider Lessee input prior to making a final
determination and assessment.
PART 2: GENERAL PROVISIONS
A. Collateral:
1.0 General Requirements for Collateral. Lessee shall provide to County collateral to guarantee all of
Lessee obligations under this Agreement: Road Maintenance Collateral is required to be kept in place for
the life of the permit/project. Collateral acceptance and release is governed by the Weld County Code.
1.1 Road Maintenance Collateral shall be submitted and held by County for the life of the
development. Road Maintenance Collateral is $3,600 for developments with paved designated
travel routes, and $2,400 for developments with unpaved designated travel routes. The Road
Maintenance Collateral may be accessed by County if, following notification to Lessee of required
roadway safety related repairs or maintenance (including dust control), Lessee fails to perform said
repairs within the time allowed in County's notification. If any of this collateral shall be collected
by County, Lessee shall replace the amount, plus interest, within six (6) months. If no Project
Collateral is required to be submitted, Road Maintenance Collateral shall be submitted at the time
of execution of this Agreement.
B. Access and Right -of -Way Permits:
1.0 Access Permits. Lessee 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
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1111110.0O7PII1.41111ITMXIDIAllAlk910 yiI 111 II 1
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, Lessee has violated any of the terms of
this Agreement, County shall notify Lessee of its belief that the Agreement has been violated and shall state
with specificity the facts and circumstances which County believes constitute the violation. Lessee 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
Lessee to be in breach of this Agreement.
2.0 Remedies for Breach by Property Owner. In the event that County determines that Lessee 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 USR Permit. Lessee acknowledges that failure to comply with the terms of
this Agreement constitutes cause to revoke the USR, 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 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
Lessee complete cessation of all activities permitted by the USR 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 Lessee of cessation of activities, and verified by the County,
cessation shall only be presumed if the County determines that the USR has been inactive for three
(3) years. Lessee shall not be entitled to a release of Project or Warranty Collateral unless and until
the improvements required by this Agreement are completed.
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3.3 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.
3.4 Revocation of USR. This Agreement shall terminate following County's revocation of
Lessee USR, except that the Lessee shall only be released from this Agreement after the successful
completion of all improvements required under this Agreement, which may be completed by
County after accessing Lessee collateral if Lessee fails to complete such improvements.
3.5 Completion of Construction: This Agreement shall terminate following Lessee completion
of construction of the facilities authorized by the underlying USR. Lessee shall notify the County
of completion.
K. General Provisions:
1.0 Successors and Assigns.
1.1 Lessee 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, Lessee 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 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.
6.0 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
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1111 WAIN u': 4156: hP6P.I'hwR ilL dkiii4 ilk 11111
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.
7.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Lessee, 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.
8.0 Release of Liability. Lessee 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.
9.0 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.
10.0 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, Lessee
shall provide the County with proof of Lessee authority to enter into this Agreement within five (5) days of
receiving such request.
11.0 Acknowledgment. County and Lessee 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.
12.0 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.
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Page 6 of 7
LESSEE (IF APPLICABLE):
By: it I
Name: Matthew T. Berghorri
Title: Vice -President Construction and Engineering
Date April 10, 2018
STATE OF COLORADO
SS.
County of Weld
The foregoing instrument was acknowledged before me this 10th day of April,
2018, by
WITNESS my hand and official seal.
STACIE L REIBER
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134060847
—trrCrVIVITSTen25, 2021
1rtr
Notary Public
WELD COUNTY:
ATTEST. r ;t1
Weld •u v Cler
BY:
BOARD OF COUNTY COMMISSIONERS
the B e . rd WELD COUNTY, COLORADO
Deputy C -k to he Bo.�Q ve Moreno, Chair SEP
5 201$
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Carly Koppes, Clerk and Recorder, Weld County, CO
MI 1111
Page 7 of 7
026/1-a.1jo
EXHIBIT A-1 - Cost Sheet
Name of Facility: Lochbuie Compressor Station
Personnel Contact: Name Matthew T. Berghom
Filing/Case #: USR17-0078
Location: Brighton
Title: VP Construction & Engineering phone 303-495-4853
Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this facility the following improvements
Improvements
(OFF -SITE IMPROVEMENTS)
i,PUBLIC WORKS,J,
cost ($)
Road Maint. Collateral (per Sec. E.-7.5)
(Paved Road = $3600 Gravel Road = $2400)
$2,400.00
TOTAL COST ($)
$2,400.00
EXHIBIT B-1 - Time Schedule
FINAL ESTIMATED COMPLETION DATE FOR PROJECT
December 2018
EXHIBIT A-1 (Cost Sheet) & EXHIBIT B-1 (Time Schedule) - Signature Portion
The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this
provision shall be determined solely by Weld County, or its duly authorized agent.
Said improvements shall be completed according to the construction schedule set out in Exhibit B
By:
Applicant/Lessee/P
Matthew T. Berghorn
Printed Name
rty Owner
Vice -President Construction & Engineering
Title
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LEGAL DESCRIPTION
THE PROPOSED SITE IS LOCATED IN THE NE 1/4 OF THE
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WEST, SOUTHEAST OF INTERSTATE 76 FRONTAGE ROAD,
6TH PRINCIPAL MERIDIAN, WELD Comm, STATE OF
COLORADO.
BOARDWALK COMPRESSOR STATIONS
LOCHBUIE LOCATION
20033 WELD COUNTY ROAD 6
HUDSON, COLORADO
USR17-0XXX
IN CASE OF EMERGENCY CALL: 911
HUDSON FIRE PROTECTION DISTRICT:
(303) 536-0161
LOCHBUIE COMPRESSOR STATION
COMPANY EMERGENCY CONTACT
(970 987-2527
METAL SIGN MOUNTED
TO POLE W/RIVETS
METAL POLE
CONCRETE BASE FOR POLES
PROJECT SIGN
BOARD OF COUNTY COMMISSIONERS CERTIFICATION
TIMIS O DEPART., 7E BOARD OF COMmOOMMS01OERS, WELD COUNTY COLORADO. DOES HEREBYCONRRMNroADOPIINE MINOR
AMENDAIENTOF DIE SITE W ECFN DEVELOPMENT PUN AND USE BY SPED,.ENEW DEVELOPMENT STANDARDS/. SHOWN AND DESCRIBEDHE EON THIS WO;
u W R. BOARD OF DOUNTY cw.wsc�
WOO DOM, CLERK TO TIE BOARD
DEPUTY CLEPXTO THE BOARD
., DISCOVERY LC DISCOVERY
SERVICES, LLC
WELD COUNTY, CO
TITLE
PROJECT NUMBER
MF
MAS
TMH
own, M. SKELSKEY
A
REFERENCE DRAWINGS
B
11
REVISIONS
REVISIONS
SE)Sow. sewnwre
amuel Engineering
PCO .s4u200 Maim
Omer.. Nog, CO Will Fox 303.714.4600
LOCHBUIE COMPRESSOR STATION
DISCOVERY DJ BASIN FIELD COMPRESSION
CIVIL
OVERALL SITE PLAN
17191
DRAWING NUMBER
LBCS-CE-104
D
G
H
B
2
3
4
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