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Home My WebLink About20182958.tiffeavitkiet /6#.20710 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 18-0024 DEPARTMENT: Public Works DATE: 9/5/2018 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 oil and gas facility (USRI 8-0024). 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 18-0024, 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-Tem Steve Moreno, Chair Approve Recommendation Schedule as Regular BOCC Hearing Item Other/Comments: /0 - 03-/B 2018-2958 ROAD MAINTENANCE AGREEMENT DISCOVERY DJ SERVICES, LLC - USR18-0024 THIS AGREEMENT is made this \1khday of v\ , 2011 , by and between DISCOVERY DJ SERVICES, LLC, hereinafter referred to as "Property Owner," nd 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 USR18-0024, 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 . Haul/Travel 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. 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 Page 1 of 6 Quir- 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 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 Page 2 of 6 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. 3.0 Liability for Damage to Road. Property Owner shall be financially responsible for any and all damage caused to any Weld County Road as a result of the installation, use, or maintenance of the pipeline through the County's rights -of -way, without regard to the negligence, or lack thereof, of Property Owner or its agents. This provision shall survive Termination of this Agreement pursuant to section B.2.0, below, and shall be of no further force and effect ten years after mutual execution of this Agreement. 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. 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. 7 O m • •3- B o 0, -0 III ammo o �N ? o inN 0 �N a� 3m�• 2.4 Completion of Construction: This Agreement shall terminate following Property Owner's completion of construction of the facilities authorized by the underlying USR. Property Owner shall notify the County of completion. 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: Page 3 of 6 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 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, Page 4 of 6 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. 4434253 Pages: 5 of 6 09/27/2018 11:09 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO lIII h4FARN TIIII 04'I4:i'I 1MI 'r+l lIt drill h BIM Page 5 of 6 PROPERTY OWNER: By: Name: Title: VT" STATE OF COLORADO County of Weld Date j(r SS. The foregoing instrument was acknowledged before me this 17 day of 201 t , by Mad -1%W T eser51lorn , keitccPc.ant -c(o.n WITNESS my hand and official seal. Notary Pub is ge.b( STACIE L REIBER NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20134060847 MY COMMISSION EXPIRES SEPTEMBER 25 7021 WELD COUNTY: ATTEST.4-1d4;ei Weld .urltylerk to th• Bo rd BY: Deputy Cle f? to he Boar 4434253 Pages: 6 of 6 09/27/2018 11:09 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO /*lig II III rKncl BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO eve Moreno, Chair �� i SEP 17 41:7 Page 6 of 6 Hello