HomeMy WebLinkAbout20180805.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item — Road Maintenance Agreement for:
DCP Midstream LP — USR17-0050 Oct
DEPARTMENT: Public Works
DATE: 2/12/2018.
PERSON REQUESTING: Evan Pinkham
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Brief description of the issue:
The Department of Public Works received a request from the applicant, DCP Midstream LP, requesting that the
Board of County Commissioners consider approving the Road Maintenance Agreement for the pipeline
(USR 17-0050).
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 (USR17-0050), and that this item be placed on the next regularly scheduled
BOCC Hearing, as part of the Consent Agenda.
Approve.
Rion
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro -Tern
Steve Moreno, Chair
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I3OCCNearina Other/Comments:
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2018-0805
ROAD MAINTENANCE AGREEMENT
DCP Operating Company, LP — USR 17-0050
THIS AGREEMENT is made this 5th day of February, 2018, by and between DCP Operating
Company, LP, hereinafter referred to as "Pipeline Owner," and the County of Weld, by and through
its Board of County Commissioners, hereinafter referred to as "County."
WITNESSETH;
WHEREAS, Pipeline Owner is the owner and operator of a natural gas pipeline permitted
under Use by Special Review USRl7-0050, referred to as "the Pipeline," which has been approved
by the County, and
WHEREAS, construction of the Pipeline will generate additional vehicles and heavy traffic
for a limited period of time during such construction (such construction activity referred to as the
"Project") ; and
WHEREAS, the County, and Pipeline 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 Pipeline 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 Pipeline
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 Pipeline 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: Pipeline 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 Pipeline
route. Should Pipeline 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 Pipeline Owner's
sourced traffic no longer utilizes the above -described haul route and instead utilizes other portions of
County roads, Pipeline 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
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Carly Koppes, Clerk and Recorder, Weld County, CO
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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 Pipeline
Owner of such Significant Damage. Pipeline 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 Pipeline Owner identifies Significant Damage prior to receiving notice
thereof from County, Pipeline 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 Pipeline 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, Pipeline Owner shall submit Off -Site Construction Plans
and Cost Estimates to County for review. Pipeline 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.
Pipeline Owner's payment for its Proportionate Share of the road repairs/improvements
will be calculated as described in this Agreement.
3.0 Proportionate Share of Road Maintenance Responsibilities:
4.1 Pipeline 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 for which it is responsible pursuant to this Agreement.
Pipeline Owner's Proportionate Share shall be based upon the percentage of traffic on
the road that is attributable to the Project. County personnel will determine the
percentage based on then current Equivalent Single Axle Load (ESAL) Counts. Pipeline
Owner shall not be responsible for traffic that is not sourced from the Pipeline Owner's
facility.
4.2 The County shall notify Pipeline Owner of County's preliminary determination and
assessment of Pipeline Owner's proportionate share of costs. Prior to County's final
determination and assessment, County shall provide Pipeline Owner with a reasonable
opportunity to review, comment upon and supplement County's data, collection
methodology, and determinations. The County shall review and consider Pipeline
Owner's input prior to making a final determination and assessment. The County shall
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Carly Koppes, Clerk and Recorder, Weld County, Co
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have sole responsibility for determination of Pipeline Owner's proportionate share of
costs.
Part 2: General Provisions
A. General Requirements:
1.0 Permits. Pipeline 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: Pipeline 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, Pipeline Owner has
violated any of the terms of this Agreement, County shall so notify Pipeline Owner and shall state
with specificity the facts and circumstances which County believes constitute the violation. Pipeline
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 Project Construction: Termination of this Agreement shall occur upon
Pipeline Owner's complete cessation of all Project construction. 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 Pipeline Owner or
Operator who has purchased the Project 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
Pipeline Owner's USR, except that the Pipeline Owner shall only be released from this
Agreement after the successful completion of all improvements required under this
Agreement.
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Carly Koppes, Clerk and Recorder, Weld County, CO
Ill 10:47,I "Ill
3.0 Revocation of USR: Pipeline 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 "Pipeline Owner" shall include any individual or entity, including an
"Operator", who is acts on behalf of the Pipeline Owner regarding this Agreement.
2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in
whole or in part by Pipeline Owner without the express written consent of County and the written
agreement of the party to whom the obligations under this Agreement are assigned. Pipeline
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 Pipeline 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
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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, Pipeline Owner shall provide the County
with proof of Pipeline 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
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.
PIPELINE OWNERS:
SIGNATURE
PRINTED NAME
/fr,e(qo
TITLE (If Applicable)
STATE OF COLORADO
County of Weld
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ss.
The foregoing instrument was acknowledged before me this day of , 2018,
by
WITNESS my hand and official seal.
ATTEST: °(1
Weld C c m my Clerk to the : oard
BY:
Deputy Cl k
Notary Public
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Carly Koppes, Clerk and Recorde , Weld 1III ���YR4 wr�1G4�1� 1� 1 1��1 6 L'ti1� Vi i!nty, CO
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BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ve Moreno, Chair MAR 1 9 2018
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