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Home My WebLink About20133339.tiffRESOLUTION RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS, AUTHORIZE CHAIR TO SIGN, AND ACCEPT COLLATERAL FOR USE BY SPECIAL REVIEW PERMIT, USR-1704 - HEARTLAND BIOGAS, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, on July 21, 2010, the Weld County Board of Commissioners approved Use by Special Review Permit, USR-1704, for Shelton Land and Cattle, Ltd., 23043 County Road 42, LaSalle, Colorado 80645, and Heartland Renewable Energy, LLC, 2400 Trade Center Avenue, Suite 201, Longmont, Colorado 80503, for a Solid Waste Disposal Site and Facility (including Class I composting, an animal waste recycling or processing facility [an anaerobic digester -based renewable energy plant - gas]), along with a Concrete Batch Plant to be used for construction of the facility in the A (Agricultural) Zone District, on the following described real estate, to -wit: Part of the SE1/4 of Section 25, Township 4 North, Range 65 West of the 6th P.M., Weld County, Colorado WHEREAS, pursuant to certain Conditions of Approval, the Board has been presented with an Improvements Agreement According to Policy Regarding Collateral for Improvements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Heartland Biogas, LLC (successor to Heartland Renewable Energy, LLC), 15445 Innovation Drive, San Diego, California 92128, with terms and conditions being as stated in said agreement, and WHEREAS, the Board has been presented with a copy of a Corporate Guaranty by EDF Renewable Energy, Inc., 15445 Innovation Drive, San Diego, California, 92128-3432, in the amount of $240,425.00, and WHEREAS, after review, the Board deems it advisable to approve said agreement and accept the form of said Corporate Guaranty as stated above, copies of which are attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Improvements Agreement According to Policy Regarding Collateral for Improvements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Heartland Biogas, LLC, be, and hereby is, approved, conditional upon submittal of the original executed version of the collateral as described below. BE IT FURTHER RESOLVED that Corporate Guaranty by EDF Renewable Energy, Inc., 15445 Innovation Drive, San Diego, California, 92128-3432, in the amount of $240,425.00, be and hereby is, accepted 3985173 Pages: 1 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■III l4lr1RYGi+Allr V,f4O141011141,1.1+ fiY4 iiii4rh II III del la)ateA) 2013-3339 PL2072 IMPROVEMENTS AGREEMENT - HEARTLAND BIOGAS, LLC PAGE 2 BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 9th day of December, A.D., 2013. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Weld County Clerk to the Board BY: Deputy Cler APP ounty Attorney Date of signature: DEC 1 9 2013 3985173 Pages: 2 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 11111rJL'Y?Ili, KVhill :KU alive Bill Wil rbara Kirkmeyer A/Z-kir ouas RadgPnacher, Pro-Tem Can P. C ay 2013-3339 PL2072 MEMORANDUM TO: Clerk to the Board DATE: 12/5/2013 FROM: Richard Hastings, Public Works Department SUBJECT: BOCC Agenda Item - Approve Improvements Agreement and Accept Collateral For: Heartland Biogas, LLC (USR-1704) Request for Approval of Improvements Agreement: The Department of Public Works received a request from the applicant's representative, Tim Naylor/Ag Pro, requesting that the Board of County Commissioners consider approving the Improvements Agreement for a solid waste disposal site and facility (including Class I composting), an animal waste recycling or processing facility (an anaerobic digester -based renewable energy plant (gas) along with a concrete batch plant to be used for construction of the facility , (USR-1704), located at CR's 49 & 40, south of the town of Kersey. Weld County Public Works Department reviewed the above -mentioned signed original document and observed the following: • All Public Works related items, of the "Improvements Agreement According To Policy Regarding Collateral For Improvements", are found to be acceptable. Request for Acceptance of Collateral: The Department of Public Works received a request from the applicant's representative, Tim Naylor/Ag Pro requesting that the Board of County Commissioners consider accepting off -site collateral in the form of a Corporate Guaranty by EDF Renewable Energy, Inc., in the amount of $240,425.00, for the above -mentioned Improvements Agreement. Recommendation: The Department's of Public Works and Planning Services are recommending approval of the Improvements Agreement According To Policy Regarding Collateral For Improvements and the acceptance of off -site collateral, in the amount of $240,425.00 for Heartland Biogas, LLC (USR- 1704). pc: Elizabeth Relford, Public Works Tom Parko, Planning Services C:\Users\dbechler\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\C07XGSSG\Approve IA Accept Collateral (USR-1704) - Heartland Biogas- MEMO.docx IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Heartland Biogas, LLC (successor to Heartland Renewable Energy) — USR-1704 Part 1: Site Specific Provisions 2L HI42, S IMPROVEMENTS AGREEMENT (this "Agreement") is made this V day of , 2013, by and between Heartland Biogas, LLC, a Delaware limited liability company whose address is 15445 Innovation Drive, San Diego, CA 92128, hereinafter referred to as "Property 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, Property Owner is the owner of, the following described property in the County of Weld, Colorado: Part of the SE4 of Section 25, T4N, R65W the 6th P.M., Weld County, Colorado and hereinafter referred to as "the Property," and WHEREAS, County has approved a land use permit (USR-1704), for a solid waste disposal site and facility (including Class I composting), an animal waste recycling or processing facility (an anaerobic digester -based renewable energy plant (gas) along with a concrete batch plant to be used for construction of the facility on approximately 80 acres on the above described real property, and WHEREAS, the Property Owner acknowledges that the issuance of USR-1704 is conditional upon Property Owner's performance of the on -site and off -site improvements which are described in this Agreement and depicted in the Plat Map and the set of accepted Construction Plans provided by Property Owner, copies of which shall be attached to this Agreement as they become available and made a part hereof, as Exhibits C (the "Plat Map") and D (the "Construction Plans" or the "Plans"), respectively, and WHEREAS, County acknowledges that Property Owner may engage in activity, as determined acceptable by County, and described in USR-1704 and/or activity related to the businesses described above while said improvements are being completed, and WHEREAS, the Property Owner agrees that pursuant to the provisions of Weld County Code Sec. 23-2-290, the failure to commence construction of the improvements outlined herein or to commence the use of the Property as approved in USR-1704 within three (3) years of the approval of the permit issued under USR-1704, may result in the revocation of USR-1704, upon consideration and order of the Board of County Commissioners, and WHEREAS, the Property Owner agrees that the failure to record the plat within the time limits imposed by the Weld County Board of County Commissioners, may result in the Page I of 22 C:\Users\dbechler\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\C07XGS5G\Heartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).docx a7/3 -3:S9 ,DL cz97a revocation of USR-1704, upon consideration and order of the Board of County Commissioners, and WHEREAS, the parties agree that the Property Owner shall provide collateral, in the form of a Corporate Guaranty by EDF Renewable Energy, Inc., for all off -site improvements required by this Agreement, upon execution of this Agreement, or at a time determined acceptable by the Board of County Commissioners. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: A. Required Off -Site Improvements Ell oA.o C o- J i 0,7 03� va ot o i. 0 LL o cr Eta avian NN - aMv so - Mma rNo in m a, at oD N �N to 1.0 Weld County Road 49 ("CR 49"): The Property Owner shall be responsible for the construction of certain on -site and off -site safety improvements, which shall include: construction of adequate asphalt paved turning radii sixty (60) feet at the main entrance onto CR 49, drainage and signage installations, as indicated on the accepted Construction Plans. The main entrance improvements will include; #1 -asphalt paving a minimum of three hundred by twenty- four (300 x 24) feet into the site from County Road 49 or #2 -asphalt paving a minimum of (100 x 24) feet into the site from County Road 49 and construct a double cattle guard set (one right after the other), in the exit portion of the roadway, to ensure a complete revolution of the truck tires. During the initial construction phase, the property owner agrees to commence construction of the improvements outlined herein, specifically, the construction of the paved left acceleration and left deceleration turn lanes on CR 49 at the facility entrance, with construction being completed no later than October 31, 2014. The left turn lanes improvements may be triggered due to heavy truck traffic associated with the facility; the following is the trigger for turn lanes: a. 5 vph turning left into the facility during a peak hour, initially (5:30- 7:00am & 3:30-5:00pm). Subject to change dependent on site activity. Prior to completion of the above -mentioned left turn lanes, the property owner agrees to require USR-1704 traffic adhere to a "Right In & Right Out" Traffic Pattern in order to maintain safe driving conditions for Weld County citizens on CR 49. The "Right In & Right Out" Traffic Pattern will generate a Detour Haul Route during the initial construction phase which will require the Property Owner to post MUTCD approved signage along the approved Detour Haul Route. The Detour Haul Route shall be attached to this Agreement and part hereof, as Exhibit E (the "Detour Haul Route Map"). Any additional traffic will indicate site operations which will require the installation of the following required auxiliary lanes. The Property Owner shall install a paved right acceleration lane on CR 49 at the facility entrance when traffic volumes meet the American Association of State Highway & Transportation Officials, (hereinafter "AASHTO") triggers of 25vph turning right into the facility during a peak hour and 50vph during right out of the facility during the peak hour, as referenced above. Granting of any new point of access may generate additional obligations with County for Off -Site Improvements and the need to post additional "Road Maintenance Collateral". A County access permit is needed for every access to a County road. 2.0 Road Improvements Responsibilities: Property Owner is solely responsible for all designated improvements, as specified above in Section A.1.0, on CR 49, and for any construction improvements mandated by the Colorado Department of Transportation (hereinafter "CDOT") and/or the County, and for all expenses associated therewith. These responsibilities Page 2 of 22 C:\Users\dbechler\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\C07XGSSG\Heartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).docx include, but are not limited to the following: design, surveys, utility locates, present and future right-of-way clearances and permits; coordination with oil and gas operators and facilities, affected railroad facilities and affected irrigation facilities; traffic control; and project safety during construction. Any other future USR or amended existing USR that utilizes the designated improvements above may be required to pay a proportionate share of the improvements. Such a payment would result in a reimbursement of some of the cost to the Property Owner. Property Owner shall obey all applicable regulations issued by the Occupational Safety and Health Administration, (hereinafter "OSHA"), CDOT, Colorado Department of Public Health and Environment, (hereinafter "CDPHE") and other Federal, State or County regulatory agencies. 3.0 Engineering Design and Construction Plans: All engineering designs and construction plans provided by Property Owner shall include, at a minimum, ingress/egress entrance intersection layouts, existing and proposed grading, drainage designs, storm drainage pipe sizings and inverts, a cross section of the base/asphalt, approach roads, and adequate turning radii, and pavement markings. Construction drawings are required for auxiliary lanes on CR 49, as described in Section A.1.0. In addition a geotechnical asphalt pavement design to accommodate heavy truck traffic, prepared by a Professional Engineer licensed to practice in Colorado, is required for CR 49. These Plans, when reviewed and accepted by the Weld County Engineer, shall be a part of the Plans, which are a part of this Agreement. All plans showing work within the County Right -Of -Way shall be reviewed and accepted by Weld County, prior to the start of construction. For all construction in the County right-of-way, prior to the issuance of any access permit or right-of-way permit, a construction schedule giving times and locations of all proposed improvements shall be provided to Public Works for review and acceptance. 4.0 Construction Standards: All construction and materials controls for a project and any designated improvements shall conform to the requirements in effect as the time of the completion of the improvements set forth in the "Standard Specifications for Road and Bridge Construction" provided by CDOT. 5.0 Traffic Control: Prior to the construction in the County right-of-way and as a condition of issuance of any access permit or right-of-way permit, the applicant shall submit a traffic control plan for County review. During construction, signage shall be posted in accordance with the then current version of the Manual of Uniform Traffic Control Devices (hereinafter "MUTCD"). 6.0 Off -Site Dust Control/Abatement and/or Paving (If Applicable): The Property Owner is required to provide dust abatement along affected Haul Route Roads approximately two to five times per year, as determined by the County. County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner based upon then current Truck Trip ESAL Counts that identify traffic loading due to Property Owner - sourced traffic. The amount and extent of dust control and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. In order to accurately determine percentage of Property Owner haul truck traffic, the County reserves the right to install traffic counters on the driveway(s) of their facility. The percentage of haul truck traffic utilizing County roads in the vicinity of the site attributable to Property Owner (or their contractors, clients, tenants, or customers) activities will be determined by traffic counts conducted by the County on the primary and requested alternate or revised haul routes. The County will have sole responsibility for determination of the percentage of truck traffic on all affected roads. Page 3 of 22 C:\Users\dbechler\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\C07XGS5G\Beartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).docx 7.0 Future Improvements: Future improvements to the haul route(s) may be required by County. Property Owner shall address all County access issues associated with afore- mentioned haul route. Future County mandated measures may include improvements to any haul route intersection or roadways then utilized by Property Owner. Property Owner shall pay a proportionate share of the cost of the entire project including engineering designs and construction plans based on the Property Owner's share of ESAL Counts using then current data on the haul route in the implementation of the above -mentioned improvements. County personnel alone shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. In order to accurately determine percentage of Property Owner haul traffic, the County reserves the right to install traffic counters on the driveway(s) of their facility. Future improvements will be subject to any Federal, State or County regulations in place at the time the improvement project is initiated. 8.0 Timing of Improvements: Subject to the provisions of Weld County Code Sec. 23-2-290 and any conditions or considerations granted by the Board of County Commissioners, Property Owner shall not be required to complete the aforementioned offsite improvements as described in Sections A.1.0-2.0 until the occurrence of the triggering event for each improvement, namely the application for the Grading Permit, Building Permit or Right -Of -Way access permit or the commencement of activities on the property(s). At that time, Property Owner agrees that the required collateral will be posted and all on -site and offsite improvements shall commence and shall be completed within the parameters established in Sections A.1.0, A.3.0 and E.7.2, and Exhibit B, herein. 9.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, Property Owner shall contact a representative of the Weld County Department of Public Works and request an inspection of the off -site improvements described in Sections A.1.0-2.0 above. The County's representatives may then initiate the acceptance process set forth in Sections E.6.1-6.3. 9.1 All references in this Agreement to "Acceptance of Improvements" shall refer to the County confirming completion of said improvement(s) according to the accepted Construction Plans. By accepting any improvement, the County does not thereby accept said improvement for purposes of future maintenance, nor does the County accept any present or future responsibilities or obligations relative to these improvements. B. Haul Routes: 1.0 Established Haul Routes from the facility access point, following completion of turn lane improvements as described in Section A.1.0 of this Agreement: 1.1 Exiting or entering the site: Haul trucks shall enter or exit the site via the proposed access, directly onto County Road 49 to disperse north or south. Until auxiliary lanes can be constructed, as described in Section A.1.0, the construction traffic shall enter and exit the site in a right-in/right out movement to ensure the safety of trucks accessing County Road 49 in a safe manner. Any County roads routinely utilized by USR-1704 haul traffic may become part of the established haul routes. Page 4 of 22 C:\Users\dbeckler\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\C07XGSSG\neartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).docx 1.2 No haul truck may exceed CDOT required specifications for pounds per axle. 1.3 In unusual or rare occasions, if particular projects mandate deviation from the above -mentioned haul route for a limited period of time (which is defined in this Agreement as a period of not more than thirty days), which shall be established by County at the time that the deviation is allowed. If County approves such deviation, trucks will utilize paved county roads whenever possible. A deviation from the established Haul route lasting more than thirty (30) days or requests for two or more deviations within a twelve month period shall be subject to the terms of Section 4.0 of this Section B. In the event that haul thick traffic, in excess of 15% of the daily facility truck trips, utilizes alternate haul routes, the provisions of Section 4.0 of this Section B shall be triggered. 2.0 Haul Route Signage: Property Owner shall install haul route signs, as per MUTCD standards, at all exit points of the Property and along the Detour Haul Route which can be clearly seen by drivers leaving the facility and which clearly depict County approved haul routes. 3.0 No Deviation from Permitted Haul Routes: Except under the provisions provided in Section B.1.3, no deviation in the use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. 4.0 Effect of Future Changes to Haul Routes: In the event that County is requested by Property Owner or site operator to approve the use of an additional access, new haul route, or an alternative haul route as a result of a change in Property Owner's site activities and/or truck circulation patterns, and if the alternative or additional access or haul route utilizes any unpaved portion of County roads, and if County determines that dust control or paving is required on the unpaved portion of said haul route roads, Property Owner agrees that dust control or paving measures to protect the public health, safety, and welfare shall be instituted. County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner based upon then current truck trip counts that identify traffic loading due to Property Owner -sourced traffic. The amount and extent of dust control and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. C. Road Maintenance Requirements: 1.0 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 opinion of County has been created by hauling to and from the Property. Should Property Owner's site activities and/or should Property Owner's truck 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 Page 5 of 22 C:\Users\dbechler\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\C07XGS5G\neartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).docx roadway damage, caused by Property Owner (or its contractors, clients, tenants or customers) 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. MI __ O U T�- C U oa,— 3� wLi, 7- v o a, L co LLcri LE or a)a r4 0_r? mU romv� „IN o`1 InF2a coN- (9—w- 1.1 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 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 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). 1.2 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 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. 1.3 In County's 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 Sections A.6.0 or A.7.0 of this Agreement, and in a manner consistent with Section C.3.0 of this Agreement. 2.0 Annual Road Inspection: County will 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 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. Page 6 of 22 C:\Users\dbechlerWppData\Local\Microsoft \Windows \Temporary Internet Riles\Content.Outlook\C07XGSSG\Heartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).docx 3.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road damage increases beyond the point that repair of damage cannot maintain the road in a safe and usable condition, Property Owner shall pay a proportionate cost of a complete restoration based on the number of Haul Trip ESAL Counts using then current data of haul trips entering or exiting Property Owner's site onto the haul route in the implementation of the above -mentioned improvements. Notification to the Property Owner of the required roadway replacements will be given as soon as the data becomes available and typically takes place before the end of the year prior to the start of the replacement project, as described in Section C.1.0 above. 4.0 Sharing of Road Maintenance Responsibilities with Other Property Owner and/or Lessees: It is anticipated that Property Owner and other Property Owner and/or Lessees subject to agreements similar to this Agreement will perform the required road maintenance work and will share in the equipment, labor, and materials required. Any such sharing arrangement between Property Owner and/or Lessee, and other Property Owner and/or Lessees shall be conducted pursuant to separate agreements between the Property Owner and other Property Owner and/or Lessees. County shall approve the Agreements only to determine whether the required improvements/maintenance projects have been adequately addressed. County alone shall determine the sufficiency of all road improvement/maintenance projects when completed. 5.0 Violation of Terms of Agreement: If Property Owner does not perform as outlined in this Agreement and Exhibits A and B such non-performance will constitute a violation of Property Owner land use permits granted by County, and County will take whatever remedial measures it deems necessary, against Property Owner. In addition to any other remedy available to the County in law or equity, a failure to comply with this Agreement shall be considered grounds for setting a probable cause hearing according to the procedures described in Section 2-4-40 of Weld County Code. Revocation of USR-1704 as it now exists or may, from time to time, be amended is a remedy which County may impose. D. On -Site Improvements: (No On -Site Collateral is required for USR-1704 but Property Owner shall complete all On -Site Improvements as shown on the accepted Construction Plans and Plat Map for USR-1704.) 1.0 Landscaping and Fencing Requirements: Property Owner shall landscape and/or maintain the landscaping and re -seeding of the property where applicable as shown on the accepted construction plans and USR-1704 plat map . Specifically, Property Owner shall at its own expense, plant, install and maintain all trees, grass and shrubs and other landscaping and re- seeding where applicable as shown on the accepted construction plans and USR-1704 plat map. Additionally, the Property Owner shall install and/or maintain fencing to screen the property where applicable as indicated on the accepted construction plans and USR-1704 plat map. In the event any of these improvements may include work extending into State or County Right -Of - Way, a Right -Of -Way or access permit is required. 2.0 On -Site Grading, Drainage Facilities and Paving: Property Owner shall, at its own expense, grade and/or pave, if applicable, specified roadways, accesses, easements and parking areas, and install accepted drainage and signage components, adjacent to or within the interior portion of the Property in accordance with the directives of the Weld County Department of Public Works and Department of Planning, as further described in the accepted Construction Plans and USR-1704 Plat Map. Any on -site improvements shall be completed as indicated on the accepted Construction Plans for this facility. Property Owner shall be responsible for all Page 7 of 22 C:\Users\dbechler\AppData\Local\Microssoft\Windows\Temporary Internet Files\Content.Outlook\C07XGSSG\leartland Renewable Energy (USR-1704) Part I -Site Specific Provisions-DIA (12-6-13) (2).docx maintenance of the onsite improvements. Refer to Section A.1.0 of this agreement for specific paving requirements extending into the facility site from CR 49. Additional infrastructure improvements will be addressed at the time of application for any future amended USR. Some of these improvements may include work extending into State or County Right -Of -Way in which case a Right -Of -Way or access permit is required. 3.0 Timing of Improvements: Property Owner shall not be required to initiate the landscaping requirements until the occurrence of the triggering event for all improvements, namely the earlier of approval of the grading permit or an amendment to the existing USR. The approved Agreement Between Weld County, Colorado, and Heartland Biogas, LLC, for the Conditional Early Release of Grading Permit GRD13-00014, dated June 19, 2013 allows for the release of the grading permit prior to collateral being posted for the associated improvements. The Construction Plans have been submitted to and accepted by the Department of Public Works for the on -site grading as approved and permitted by Weld County Grading Permit # GRD13- 00014 dated June 19, 2013. Access and/or Right -Of -Way permits might also be required prior to approval of the grading permit. Grading shall not commence until grading plans are accepted. Any alterations to the accepted Construction Plans must be pre -approved in writing by the County Planning and Public Works Departments. At that time, and unless otherwise amended, Property Owner agrees that all landscaping and other on -site improvements, as indicated in Section D. 2.0 above shall be completed within the parameters established in Section E. 7.2 and Exhibit B. 4.0 Acceptance of On -Site Improvements: Upon completion of the on -site improvements, Property Owner shall contact the Weld County Department of Planning Services and the Weld County Department of Public Works and request an inspection of the on -site improvements described in Section D.1.0 and D.2.0 above. The County's representatives may then initiate the acceptance process set forth in Section E.6.0, sections 6.1-6.3. "End of Part 1" 3985173 Pages: 10 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ®IIIl�r1P�� UtithIfJM�4r�i+4tht'till�{N��iINCR Ali II III Page S of 22 C:\Users\dbechler\AppData\Local\Microsort\Windows\Temporary Internet Files \Content.Outlaok\C07XGS5G\Heartland Renewable Energy (USR-1704) Part 1 -Site Specific Provisions-DIA (12-6-13) (2).doex IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Heartland Biogas, LLC (successor to Heartland Renewable Energy) — USR-1704 Part 2: General Provisions E. General Requirements: 1.0 Engineering Services: Property Owner shall furnish, at its own expense, all engineering services in connection with the design and construction of the improvements identified on the accepted Construction Plans according to the construction schedule set forth in Exhibit "B," both of which are attached hereto and incorporated herein by reference. 1.1 The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. 1.2 The required engineering services shall consist of, but not be limited to, surveys, designs, plans and profiles, estimates, construction supervision, and the submission of necessary documents to the County. 1.3 Property Owner shall furnish construction drawings for the road improvements on public rights -of -way or easements and all improvements interior on the Property for approval prior to the letting of any construction contract. 2.0 Rights-of-wav and Easements: Before commencing the construction of any improvements herein agreed upon for public rights -of -way or easements, Property Owner shall acquire, at the sole expense of Property Owner, good and sufficient rights -of -way and easements on all lands and facilities traversed by the proposed improvements. All such rights -of -way and easements used for the construction of roads to be accepted by the County shall be conveyed to the County and the documents of conveyance shall be furnished to the County for recording. 3.0 Construction: Property Owner shall furnish and install, at its own expense, the improvements identified on the accepted Construction Plans and USR-1704 Plat Map, be solely responsible for the costs listed on Exhibit "A", and described in parts A and D of this agreement, which are attached hereto and/or incorporated herein by reference, with the improvements interior to the Property being completed by the dates set forth on Exhibit "B" (On -site), and improvements to public rights -of -way or easements being completed also in accordance with the schedule set forth in Exhibit "B" (Off -site). The Board of County Commissioners, at its option, may grant an extension of the time of completion set forth in Exhibit B stated herein upon application by the Property Owner. 9 of 22 M:\PLANNING -- DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review\USR-1704 Heartland Renewable Resources\mprovements Agreement\Ileartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docz 3985173 Pages: 11 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ®III M��ati2�I��'tiF,4+�Hd�ew��h,�LN�'�I,1 P�i?l�ti�f�ti� ®I III dV/3-- 3337 3.1 Said construction shall be in strict conformance to the plans and drawings accepted by the County and the specifications adopted by the County. 3.2 Property Owner shall employ, at its own expense, a qualified testing company previously approved by the County to perform all testing of materials or construction; and shall furnish copies of test results to the County. If County discovers inconsistencies in the testing results, Property Owner shall employ at its expense a third party qualified testing company approved by County. Such third party shall furnish the certified results of all such testing to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect, or to require testing and inspection of material and work, at Property Owner's expense. Any material or work not conforming to the approved plans and specifications, including but not limited to damages to property adjacent to the construction plan area shall be repaired, removed or replaced to the satisfaction of the County at the expense of Property Owner. 4.0 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 improvements, 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. 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. 5.0 Warranty of On -Site and Off -Site Improvements: Property Owner shall warranty all improvements to public rights -of -way, (if any), and all privately created and maintained roads or rights -of -way, or easements, and all on -site improvements for a period of two (2) years. The warranty period shall begin only after the County's execution of a written acceptance of the improvement(s). 6.0 Acceptance of On -Site and/or Off -Site Improvements by the County: Upon compliance with the following procedures by the Property Owner, the improvements shall be deemed accepted by the County, if collateral had been initially posted for the improvements. The BOCC does not represent or ensure the on -site improvements will be constructed and/or available for their intended use(s). 10 of 22 M:\PLANNING — DEVELOPMENT REVIEW\--Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review \USA -1704 Heartland Renewable Resources \ Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 12 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ®III10Pi iPPO,IfilWl ,iNINk'ILM1Irfhsi'f, ®I III 6.1 If requested by the Property Owner and approved by the County, portions of the improvements may be placed in service when completed according to the schedule shown on Exhibit "B," but such use and operation shall not, alone, constitute an acceptance of said portions of the improvements. 6.2 County may, at its option, issue building permits for construction for which the improvements detailed herein have been started but not completed according to the schedule shown on Exhibit "B," and may continue to issue building permits so long as the progress of work on the USR improvements in that phase of the USR is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Property Owner. 6.3a Upon completion of the construction of the required off -site improvements, and the filing of a Statement of Substantial Compliance by Property Owner's engineer, the Property Owner may, as set forth in Section A.12.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer shall, upon request by the Property Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. The County Engineer shall reinspect the improvements after notification from the Property Owner that said deficiencies have been corrected. If the County Engineer finds that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. 6.3b Upon completion of the construction of the required on -site improvements, and the filing of a Statement of Substantial Compliance, when necessary, by Property Owner's engineer, the Property Owner may, as set forth in Section D.4.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted if collateral had been initially posted for the improvements, and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer and/or the Weld County Department of Planning Services shall, upon request of the Property Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. The County Engineer and /or the Department of Planning Services shall reinspect the improvements after notification from the Property Owner that said 11 of 22 M:\PLANNING — DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review \USR-1704 Heartland Renewable Resources \Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 13 of 31 12/19/2013 10:33 OM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ®III M�r1!!?.PM1'6FJrti�l4ihlifF`''�i�: w�k��k�i'd�GY4rh iI III deficiencies have been corrected. If the County Engineer and/or Department of Planning Services find that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer and/or the Department of Planning Services for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. 7.0 General Requirements for Collateral: (Currently no on -site collateral for USR-1704 is required, but possible future on -site collateral may be required by County, should the Property Owner revise conditions of operation in the future.) 7.1 County requires Property Owner to provide collateral to guaranty all of Property Owner's obligations under this Agreement: (I) Project Collateral for completion of all improvements described in this Agreement shall be provided for off -site improvements with no on -site collateral for USR- 1704 required at this time. Possible future on -site collateral may be required by County, should the Property Owner revise conditions of operation in the future. (2) Warranty Collateral required for all improvements during the warranty phase; and (3) Road Maintenance Collateral (If Applicable) to be kept in place for the life of the permit. 7.2 Project Collateral submitted to Weld County to guarantee completion of the improvements indentified on the accepted Construction Plans and USR13-0014 Plat Map and further enumerated in the costs listed in Exhibit "A," must be equivalent to One -Hundred Percent (100%) of the value of the improvements as shown in this Agreement This collateral must be submitted to County upon the submission of the Property Owner's application of a grading, building, and/or right -of way permit, or at a time determined acceptable by the Board of County Commissioners, and shall be held in total by County as provided in Paragraph E. 7.3 below until all improvements have been completed. 7.3 Warranty Collateral for all off -site improvements shall be submitted to County and shall be held in total by the County for two (2) years following its written acceptance of the improvement(s). 7.4 In the event Property Owner fails to adequately complete and/or repair improvements associated with this Improvements Agreement, County will access, in its sole discretion, Project or Warranty Collateral to the extent necessary to complete said improvements or repairs in order to preserve public interest. 7.5 Road Maintenance Collateral shall be submitted to County upon the release of the warranty collateral by the Board of County Commissioners or at the time of approval of this Agreement, if no Project Collateral was 12 of 22 M:\PLANNING — DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review \USR-1704 Heartland Renewable Resources\Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 14 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Held County, CO VIIIkr1A'rlf wi,'Ntoltirim" MkIIIII initially submitted. Road Maintenance Collateral is held for use on roads associated with the designated haul route. If no Project Collateral was initially submitted, Road Maintenance Collateral shall be submitted at the time of approval for this Agreement or at such time that approved USR-1704activities are initiated. The submitted amount shall be $3,600.00 for facilities adjacent to paved haul route roads or $2,400.00 for facilities adjacent to gravel haul route roads, and the amounts will be listed on Exhibit "A"- Cost Sheet (OFF -SITE). Road Maintenance Collateral shall be held by County as long as this Agreement is in effect and returned to Property Owner upon vacation of associated land use agreement or permit. The Road Maintenance Collateral will only be accessed by County, if following notification to Property Owner of required roadway safety related repairs, Property Owner fails to perform said repairs within the time allowed in County's notification. If any of this collateral shall be collected by County, Property Owner shall replace the amount, plus interest, within six (6) months. 7.5.1 Road Maintenance Collateral Option (For Materials Haulers): In lieu of cash collateral, Property Owner may submit funds quarterly to Weld County, at a rate of ten (10) cents per ton, based on the amount of processed material leaving the site. These funds will be escrowed by the County and utilized for roadway repairs specific to the USR's designated haul route. The first payment of funds will be due three months after the initial sale of materials from the USR site. Subsequent quarterly payments will be deposited in the associated escrow account until the USR permit is terminated. Utilization of this collateral option will negate any further obligations of the Property Owner and/or Property Owner to participate in any future maintenance and/or improvements projects for the associated Haul Route. Upon vacation of the USR for this facility and following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining funds in the escrow account will be returned to the USR Permittee. 7.5.2 Road Maintenance Collateral (For Off -Site Dust Control — If Applicable): The total costs for materials and application, will be listed on Exhibit "A" (OFF -SITE) — Dust Control, of this agreement. These funds will be utilized by the County for roadway applications specific to the USR's designated haul route, only if the Property Owner does not adhere to the requirements for dust suppression as specified in Section A.9.0 of this agreement. Following completion of all construction phases, and/or upon vacation of this USR, and 13 of 22 M:\PLANNING — DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering) \USR-Use by Special Review\USR-1704 Heartland Renewable Resourcesllmprovements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 15 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO IIII�4�11L I ' 'Old ��.R�i44,dhWPi%r G14'4144 III III following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining Dust Control collateral will be returned to the USR Permittee. 7.6 Acceptable Project Collateral shall be submitted when the Property Owner submits an application for the Grading Permit, Building Permit, or Right - of -Way Access Permit prior to commencement of Site Preparation, as herein defined. 7.6.1 No grading or building permits shall be issued for any site related activities, on the property and no Site Preparation shall commence until cost estimates for all improvements are updated and collateral is provided in the amount of One -Hundred percent (100%) of the then current value of the improvements to be completed, and the development plans are revised to comply with all current County standards, policies and regulations, except with prior County consent. The improvements shall be completed within the time schedule set forth in Exhibit "B", which is attached hereto and made a part of this Agreement. "Site Preparation" shall mean earthwork grading or performance of work, or construction or installation of improvements related to Property Owner's operations pursuant to USR-1704that require a grading or building permit from the County pursuant to the Weld County Code. In the event that the Improvements outlined in this Agreement and Exhibit A are not completed within one year of the execution of this Agreement Weld County may require Property Owner to obtain current cost figures for one or more of the Improvements. 7.7 Collateral may be in the form of an irrevocable letter of credit (LOC) in an amount equivalent to one -hundred percent (100%) of the total value of the improvements set forth in the Improvements Agreement and the Plat; the LOC shall be subject to the requirements of Weld County Code Section 2- 3-30 B. The Property Owner shall utilize only a County approved form when obtaining an LOC: (IRRVEVOCABLE STANDBY LETTER OF CREDIT FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said form shall be provided to Property Owner upon request. 7.8 Collateral may be in the form of a surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to one hundred percent (100%) of the value of the improvements set forth in the Improvements Agreement and the Plat. The surety bond shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. The Property Owner shall utilize only a County approved form when obtaining a surety bond: (PERFORMANCE BOND FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, 14 of 22 M:\PLANNING--DEVELOPMENT REVIEw\—Pre-Accela Referrals (Old Numbering) \USR-Use by Special Review\USR-1704 Heartland Renewable Resources \Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 16 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO XIII k' I,71 klf flicr+,li rk+h' E4(fr43G4+AM1d41ig BI III COLORADO). A copy of said form shall be provided to Property Owner upon request. 7.9 Collateral may be in the form of a cash deposit made with the Board in an amount equivalent to One Hundred Percent (100%) of the value of the improvements set forth in the Improvements Agreement. In the event the Property Owner is required to warranty the improvements, the Property Owner shall replace the original deposit with a deposit in the amount of fifteen percent (15%) of the original amount and those funds shall remain available to the County until released by the County at the end of the warranty period. 7.10 The Board of County Commissioners reserves the right to reject collateral which is deemed inappropriate or insufficient, which may be either as collateral in the form of a letter of credit offered by a banking institution which does not have at least a "three star" rating given by Bauer Financial, or as collateral in the form of a performance bond offered by an insurance company which does not have at least a B+ rating given by A.M. Best. The Board further reserves the right to require Property Owner to obtain replacement collateral if the rating of the financial institution providing said collateral drops below the levels stated above. Replacement collateral shall be submitted by Property Owner within sixty (60) days of the Board's notice to Property Owner that the rating has fallen and that the collateral must be replaced. Property Owner may not terminate existing collateral until replacement collateral has been secured. 8.0 Request for Release of Collateral: Collateral shall be released in accordance with the provisions of Weld County Code Section 2-3-30.C. Prior to release of collateral for the entire project or for a portion of the project by Weld County, the Property Owner must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of Substantial Compliance shall state that the project or a portion of the project has been completed in substantial compliance with accepted plans and specifications documenting the following: 8.1 The Property Owner's Engineer or his representative has made regular on -site inspections during the course of construction and the construction plans utilized are the same as those accepted by Weld County. 8.2 For the improvements to public rights -of -way or easements, test results must be submitted for all phases of this project as per Colorado Department of Transportation (CDOT) Schedule for minimum materials sampling, testing and inspections found in CDOT Materials Manual. 8.3 "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or at such time as the Property Owner has completed improvements as shown on the USR-1704 Accepted M:\PLANNING — DEVELOPMENT REVIE W\—Pre-Accela Referr15 of 22 als (Old Numbering)\USR-Use by Special Review \USR-1704 Heartland Renewable Resources\Improvements Agreement Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 17 of 31 12/19/2013 10:33 All R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO lIII M��P14 P�.6Fl��G4�1 N�h� � L1lJi h frill ®III Construction Plans and Plat Map, and shall be stamped and approved by an Engineer registered in the State of Colorado, if an Engineer was initially required for the project. The Property Owner's Engineer shall certify that the project "as -built" is in substantial compliance with the plans and specifications as approved, or that any material deviations have received prior written acceptance from the County Engineer. 8.4 The Statements of Substantial Compliance must be accompanied, if appropriate, by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. 8.5 A letter must be submitted from the appropriate Fire Authority, if applicable, indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and, if required by the County, state the results of fire flow tests. 8.6 The requirements in the paragraphs 8.0 through 8.5 shall be noted in the final Construction Plans. 8.7 Following the submittal of the Statement of Substantial Compliance and written recommendation of acceptance of the improvements by the Weld County Department of Planning Services and the Weld County Department of Public Works, the Property Owner (if Property Owner has supplied any or all of the collateral) may request release of the collateral for the project or portion of the project by the Board. This action will be taken at a regularly scheduled public meeting of the Board. 8.8 Following the written request for partial release of the "Project Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the on -site and/or off -site improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the partial release of "Project Collateral". For all off -site improvements (including improvements to public rights -of -way or easements), the written request for release of "Project Collateral" shall be accompanied by "Warranty Collateral" in the amount of fifteen percent (15%) of the value of the improvements as shown in this Agreement. 8.9 Following the written request for release of the "Warranty Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the conclusion of the Warranty period. The "Warranty Collateral" shall be released to the Property Owner following the expiration of the warranty period upon final written acceptance by the Board of County Commissioners. 16 of 22 M:\PLANNING - DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering) \USR-Use by Special Review\USR-1704 Heartland Renewable Resources\Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions -HA (12-3-13).docx 3985173 Pages: 18 of 31 12/19/2013 10:33 RM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO IIII M�'1A�'QPl6liehJrl�I�GI P+�fik�Te�YTle1 fl L ®I III 8.10 For all off -site improvements (including improvements to public rights -of - way or easements), the written request for release of "Warranty Collateral" shall be accompanied by "Road Maintenance Collateral" (If Applicable) as specified in Section E.7.5 of this Agreement. "Road Maintenance Collateral" for roads associated with the designated haul route shall be maintained as long as the USR is active. 9.0 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. (See paragraphs F. 1.2 and 2.2 below) Consent to a delegation or an assignment will not be unreasonably withheld by County. In the event of sale of the Property, County may agree to release Property Owner in whole or in part from obligations under this Agreement. 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. 10.0 County Engineer: 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. 11.0 Violation of Terms of Agreement: If in County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify Property 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. Property Owner shall have thirty (30) days within which to either cure the violation or demonstrate compliance. If, after thirty (30) days have elapsed, County believes in good faith that there has been a violation of the terms of this Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of this Agreement. Violations of the terms of this Agreement include violations of the agreements contemplated by Sections C. 4.0 & C. 5.0 of this Agreement, and a failure to enter into such Agreements in a timely manner. F. Termination of Agreement: 1.0 Termination Event: This Agreement shall terminate upon the earliest of the following events: 1.1 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Operator's complete cessation of all activities permitted under USR- 1704or any amendments thereto. A partial cessation of activities shall not constitute a 17 of 22 M:\PLANNING — DEVELOPMENT REVIE W\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review USR-1704 Heartland Renewable Resources\Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 19 of 31 12/19/2013 10:33 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO •III M��1R�+';R�e��l dlrY,�h�8��d41t' F�'n' :iiVi� 11111 Termination of this Agreement, nor shall County's issuance of a partial release constitute a Termination. Operator shall provide written notice to Property Owner and County of said cessation of activity, which County shall then verify. If written notice is not provided to County, Termination of this Agreement shall not occur until County has determined that the Use by Special Review is inactive, which shall be three (3) years following County's observance of the cessation of activities, as provided in Sec. 23-2-200.E of the Weld County Code. 1.2 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704" by New Property Owner: This Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704with a new Property Owner who has purchased the Property, and intends to make use of the rights and privileges available to it through the then existing USR. 1.3 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704" by New Operator: This Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704 with a new operator who has assumed the operation of the business on the Property which business activities are permitted by the then existing USR. 2.0 Termination Procedures. 2.1 Termination Procedures Following Cessation of Permit Related Activities: Following the events outlined in paragraph 1.1 above, County shall conduct its annual road inspection. Said road inspection shall be conducted on or before May 31 following the announcement or determination of the cessation of permit related activities on the Property. The results of the inspection shall be delivered in writing to the Property Owner and Operator. If the County determines that pursuant to the terms of this Agreement, the Operator must complete any of the improvements and/or road maintenance obligations outlined herein, said obligations must be completed within a reasonable period of time thereafter, but in no event later than six (6) months following the determination that permit related activities have ceased. Collateral shall not be released by County until such time as county determines that all of the improvements have been completed. 2.2 Termination Procedures Pursuant to Transfer of Ownership of the Property or Transfer of Operations: If the Property Owner or Operator desires to assign its rights and obligations under this Agreement to a successor Property Owner or Operator, the Property Owner or Operator shall, prior to the transfer, provide County with a written Notice to Transfer, stating the date of transfer, and identifying the party to whom the transfer shall be made. Following receipt of the Notice to Transfer, County shall inspect the improvements required under the terms of this Agreement to determine whether the improvements have been completed. If the improvements have not been completed, the Property Owner and/or Operator shall either complete the improvements or post collateral equal to the cost of the completion of the improvements, if such 18 of 22 M:\PLANNING — DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review USR-1704 Heartland Renewable Resources \ Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).doex 3985173 Pages: 20 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO VIIIM��1A'!�IGI�k 1!'JiCt' J��fPAMMW'al,avi,IIII collateral is not in place. If collateral is available at the time, County shall hold a hearing to determine whether the collateral should be called upon to pay County or a contractor of the County to complete the improvements. County shall also inspect the road(s) which are covered by this Agreement to assess the current condition of the road(s) and determine whether Operator and/or Property Owner would be required to perform road maintenance within the following twelve months had the Agreement not been assigned. If road maintenance is, in the opinion of County, required, Property Owner and/or Operator shall be required to either perform the road maintenance or to post collateral equal to the cost of said maintenance. County shall not execute a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704 with a successor Property Owner and/or Operator prior to the performance of the road maintenance or the posting of collateral for said maintenance, unless the new Property Owner and/or Operator posts collateral for the required maintenance. 3.0 Consequence of Termination by Cessation of Permit Related Activities: Following County's confirmation that Property Owner and/or Operator has/have ceased all permit related activities and has/have completed previously uncompleted Improvements and or completed any required road maintenance, County shall release Property Owner and/or Operator from all further obligations under this Agreement. No Further permit related activities shall be permitted unless and until approved by County following execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704 with a Property Owner and Operator. 4.0 Consequence of Termination by Execution of Replacement Improvements Agreement: Following County's execution of an Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704 with a successor Property Owner and/or Operator, the predecessor Property Owner and/or Operator shall have no further rights and/or obligations under this Agreement or in USR-1704. 5.0 Consequence of Termination Pursuant to Section E.11.0: In the event that activities related to USR-1704 cease as a result of the revocation of the permit as described in Section E.11.0 of this Agreement, neither Property Owner nor Operator will be released from any of the obligations imposed by the terms of this Agreement only after Property Owner's successful completion of all improvements required under this Agreement or after County accesses the collateral to the extent necessary to complete improvements County, in its sole discretion, deems necessary to preserve public interests. G. 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. H. Enforcement: If, in the County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify property Owner of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which the County believes constitute violation. Property Owner shall have thirty (30) days within which to either cure the 19 of 22 M:\PLANNING — DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review \USR-1704 Heartland Renewable Resources \ Improvements Agreement\ Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 21 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■III Nrj! vlloi'i mlifi iAsOid',ttw1SiRilklritiiih, ®I III violation or demonstrate compliance. If, after thirty (30) days have elapsed, County believes in good faith that a violation of the terms and conditions of this Agreement still exists (despite cure), County may enforce by any legal means, including, but not limited to, legal action for equitable or monetary relief filed in the Weld District Court, execution upon submitted collateral (if applicable), and/or administrative action of the County to suspend or revoke the underlying land use permit or approval pursuant to the procedural provisions of Section 2-4-40 of the Weld County Code. Violations of the terms and conditions of this Agreement include, but are not limited to, violations of the agreements Property Owner must enter into as required by this Agreement, and/or failure to enter into such agreements in a timely manner. I. 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. J. 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. 20 of 22 M:\PLANNING — DEVELOPMENT REVIEW\—Pre-Accela Referrals (Old Numbering)\USR-Use by Special Review\USR-1704 Heartland Renewable Resources\Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx 3985173 Pages: 22 of 31 12/19/2013 10:33 AM R Fee:90.00 Steve Moreno, Clerk and Recorder, Weld County, CO lIII!I P''lF,A9'5,1geth'illii'iliMi4 Lane, IllIII IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PROPERTY (Heartland Biogas, LLC) OWNER: BY: EDF Renewable Development, Inc, SIGNATURE PRINTED NAME QRL�/f 0111-t'Y TITLE (If Applicable) STATE OF COLORADO County of Weld Vice- ReCslvEWT SS. \ The foregoing instrument was acknowledged before me this ( day of bfL311?- 2013, by ctph b9Llibar U r? o Ng-sit-La/RI Si alz• ia4, d WITNESS my hand and official seal. a Pub is ° �0„„\IA q „ My commission Expires: 61 as l a ©)4)- NOTq�` ,, 1%7 A•.• p�BLIC • nom'% O"•.......•�'O .� 91.70: "i,,� COLOP\ `�\ nnnmtu \a� el.?. 7 21 of 22 M:\PLANNING — DEVELOPMENT REVIEW \—Pre-Accela Referrals (Old Numbering) \USR-Use by Special Review\USR-1704 Heartland Renewable Resources\improvements Agreement \ Heartland Renewable Energy (USR-I 704) Part 2 -General Provisions -FM (12-3-13).docx 3985173 Pages: 23 of 31 12/19/2013 10:33 AM R Fee:$O.O0 Steve Moreno, Clerk and Recorder, Weld County, CO ®III Er:17,vNAIIJI4i0. II BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Garcia, air Weld County Clerk to the Board BY: Deputy Clerk the Board APPROVED AS TO FORM: .County Attorney 3985173 Pages: 24 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ®IIIP�PJI'if Pai'k+�iti�MP�I�htJMiL'rN.+�G�4��hh�rh ®1111 DEC 0 S 2013 M:\PLANNING—DEVELOPMENT REVIEW\—Pre-Aceela Referr22 of 22 als (Old Numbering)\USR-Use by Special Review \USR-1704 Heartland Renewable Resources\Improvements Agreement\Heartland Renewable Energy (USR-1704) Part 2 -General Provisions-FIA (12-3-13).docx EXHIBIT A - Cost Sheet (OFF -SITE) Name of Subdivision, PUD, USR, RE, SPR: 1 LAJi ( o4. Z1 DG S 14.--e.Filing/Case #: 0512- '104 Location: vela 447 Personnel Contact: Name •.10111'l. Raj ;r /%. Title?YOj (44eV: Phone Intending to be legally bound, the undersigned Applicant herebp agues to proride throughout this ja 77v J! 11• Improvements (Leave spaces blank where they do not apply) u r_ rrfo ororngrmproveraertts (OFF -SITE) Ouantio Units Unit Costs (S) Estimated Construction Site Grading Cn4r a� Street Grading IOC) L rG ✓, g6 f (p 2 7 Street Base Sion L f 11,6O 35ltsa Street Paving too L /Poo 121100 Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Sanitary Sewers/Sewage Facilities Entrance/Access Improvements Erosion Control MeasuresBMP's Road Maint. Collateral (per Sec. E.-7.5) f i (aoo 34,00:::, Dust Control (per Sec. E.-7.5.2) Water Supply Fire Hydrants Survey, Street Monuments/Boxes Parking Area Street Lighting Street Names Signage & Pavement Marking 0-raGtc Co(ih'( 'Jt Oa (- r Q-9 4 0 Fencing Requirements .-.7.9(.) Landscaping (Seeding, Trees, etc.) Park Improvements 6 e CA..QC(,L."'[r,c,,4.(.,t.1 / bt (1/l ,,i -{ 5+c.. [•:� t«i ( ',206,c, �-2 00 c) � ✓l G I YI i? fi.> i i g I 1 5 ,2OO !•'UG 1L 4 VvoA)1 I 1`G4.i1O D. l i -7 o:» -7 or.. -x) SUB -TOTAL: Engineering and Supervision Costs S (Testing, inspection, as -built plans and work in addition to preliminary and final plat; supervision of actual construction by contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION $ 2/0f7 2 3985173 Pages: 25 of 31 12/19/2013 10:33 P11 R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO EXHIBIT A - Cost Sheet (OFF -SITE)- Signature Page 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: VIII ,t ES 1 d (Air Date DECEA1RE2 6 , 20 13 Title By: Applicant Title 3985173 Pages: 26 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO IVF,1LPApKe11Yef IT, DILIFa kTl' 11 III Date , 20 fBIT Cost l)eef ON -i$11.4'4 Name of Facility: Personnel Contact: Name Filing/Case #: Title: Location: Phone: Intending to be legally bound, the undersignedApn!Scant her Improvements (Leave (Leave spaces blank where they do not apply) ;:;:;:;:;: - . . ::( ;MT ''-' '•''''''-'''"'-'I Quantity Units Unit Costs (S) Estimated Construction Cost IS) ,PUBLIC WORKS,. Site Grading Street Grading Street Base, Gravel for Parking Street Paving Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Entrance/Access (per Sec. E.7.2) Erosion Control Measures/BMP's Road Maint. Collateral (per Sec. E.7.5) Dust Control (per Sec. E.7.5.2) Fire Hydrants Survey, Street Monuments/Boxes ,.PLANNING SERVICES,. Parking Area, Curb Stops, Bus Kiosks Street Lighting Street Names Signage Fencing Requirements Landscaping, Seeding, Trees, etc. Park Improvements P 3985173 Pages: 27 of 31 12/19/2013 10:33 AM R Fee:$0.00 Handicap Accessibility, Parking & Rails Steve Moreno. Clerk and Recorder, Weld County, CO ®III IMPAl k al ikil Y ilhth`i41.411ta'iii Septic Systems r NI SUB -TOTAL: 7I (testing, inspection, as- Engineering and Supervision Costs ($) final plat; supervision mit plans and work in ad of actual construction Mon to preliminary and by contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS, ENGINEERING AND SUPERVISION ($) EXHIBIT r Cest Sheet (DNS 17'E ) SignAfu -e Page 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 Date , 20 Title By: Applicant Date , 20 _ Title 3985173 Pages: 28 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO frralrIP Jfa'INIirdiPhGLi'i', 11111 EXHIBIT B - Time Schedule (ON -SITE) & (OFF -SITE) Name of Subdivision, PUB, USR, RE, SPR: Filing/Case #: Location: Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this facility the following improvements. All improvements shall be completed within _years from the date of approval of the final plat. Construction of the umprovements listed in Exhibit A shall be completetl as follows• Improvements (Leave spaces blank where they do not apply) Time Schedule OMSITE I) (OFF -SITE) ,PUBLIC WORKSI Site Grading Street Grading Street Base, Gravel for Parking Street Paving Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Entrance/Access Erosion Control MeasuresBMP's Fire Hydrants Survey, Street Monuments/Boxes 4 -PLANNING SERVICES4. Parking Area, Curb Stops, Bus Kiosks Street Lighting Street Names Signage Fencing Requirements Landscaping, Seeding, Trees, etc. Park Improvements Handicap Accessibility, Parking & Rails Septic Systems Final Completion Date for Entire Project 3985173 Pages: 29 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 1111 F.471114 Elul i'�'�6AIS1'c%Svh ®III EXHIBIT B - Time Schedule- Signature Page The County, at its option, and upon the request of the Applicant, may grant an extension of time for completion for any particular improvements shown above, upon a showing by the Applicant that the above schedule cannot be met. By: Applicant Date , 20 _ Title By: Applicant Date , 20 Title 3985173 Pages: 30 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ,III Mcrrirkiiii.WIORLIVIiil, i1iJGMPLYik 01111 O:\New Version Agreement\Exhibits\2013\Exh B Time Schedule-FINAL(2013).xlsx Exhibit E "Detour Haul Route Map" for USR-1704 44 44 - CR49 USR-1704 SITE Om ICR 49 ........ CR 42 RIGHT -IN & RIGHT -OUT" TRAFFIC PATTERN AT FACILITY ACCESS r U) 3985173 Pages: 31 of 31 12/19/2013 10:33 AM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO NIP PAT AEC IR !COI CR 40 Legend Paved Gravel 1 Arterial Service 2 Local Service cgiumcD 3 Half and Half 99,E "l2s GROVER O B NUNN aa7PIERRE AU�,C _ — ugV, � yMER .E�AT0N W,N0S0R"{'J -010 "3 ta MITT dw usm GREELEY''4R LLIKEN K�SEy�' LELE E ige MI MEAD LONG NkosoN o •s Fr,n sWir 0 970 1,940 NMI Feet GUARANTY This GUARANTY (the "Guaranty") is made as of December 9, 2013 by EDF Renewable Energy, Inc., a Delaware corporation ("Guarantor"), for the benefit of the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners (the "Beneficiary"). Guarantor and the Beneficiary are sometimes collectively referred to herein as the "Parties." RECITALS A. A subsidiary of Guarantor, Heartland Biogas, LLC (the "Company") and the Beneficiary are entering into that certain Improvements Agreement According to Policy Regarding Collateral for Improvements (as amended, modified and supplemented from time to time, the "Agreement"), pursuant to which the Beneficiary and the Company are agreeing to certain requirements related to the on -site and off -site improvements the Company will undertake in connection with the construction of the facilities contemplated by a Use -by -Special Review for Property located in Weld County, Colorado (USR-1704). B. The Beneficiary's willingness to enter into the Agreement is conditioned upon the issuance by Guarantor of this Guaranty. C. Guarantor is willing to issue this Guaranty on the terms and conditions set forth herein. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows: SECTION 1. Definitions. 1.1 Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Agreement. 1.2 As used in this Guaranty, the following terms shall have the following meanings: "Business Day" means a day of the year on which banks are not required or authorized by law to close in the State of California or Paris, France. "Guaranteed Obligations" means any and all of the obligations of the Company under the Agreement subject to the limitations set forth in the Agreement. 1.3 In this Guaranty: (a) unless otherwise specified, references to Sections and clauses are references to Sections and clauses of this Guaranty; and (b) except as otherwise specifically provided herein, including without limitation in this Section 1.3(b), references to any document or agreement, including this Guaranty, shall be deemed to include references to such document or agreement as amended, supplemented or replaced and in effect from time to time in accordance with its terms and subject to compliance with the requirements set forth therein; 1.4 The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Guaranty. SECTION 2. Guaranty. Subject to the provisions hereof, Guarantor hereby unconditionally and irrevocably guarantees, to the Beneficiary, as primary obligor and not as surety, the full and prompt payment when due of the Guaranteed Obligations. To the extent that Company shall fail to pay any Guaranteed Obligations, Guarantor shall promptly pay to Beneficiary the amount due. SECTION 3. Limitation on Guarantor's Liability. Guarantor's liability hereunder shall be and is specifically limited to payments expressly required to be made in accordance with the Agreement, and in no event shall Guarantor be subject hereunder to any indirect, special, incidental, exemplary or consequential damages, losses, or liability of any kind whatsoever, including loss of utilization or use, loss of opportunity, loss of profits, business interruption or expected income, or any other damages, costs or attorneys' fees. The foregoing limitation shall apply for any and all manners of liability including liabilities based in contract, tort, statutory, regulatory, environmental or any basis in any law or equity. Notwithstanding anything herein to the contrary, the maximum aggregate liability of Guarantor in respect of the Guaranteed Obligations is limited to and shall not exceed Two Hundred Forty Thousand Four Hundred Twenty -Five Dollars ($240,425) (it being understood that any payment by Guarantor or Company of any portion of the Guaranteed Obligations shall limit and reduce Guarantor's maximum aggregate liability hereunder on a dollar -for -dollar basis). Except as specifically provided in this Guaranty, Beneficiary shall have no claim, remedy or right to proceed against Guarantor or against any past, present or future stockholder, partner, member, director or officer thereof for the payment of any of the Guaranteed Obligations, as the case may be, or any claim arising out of any agreement, certificate, representation, covenant or warranty made by Company in the Agreement. SECTION 4. Payment Demand. If Company fails or refuses to pay any Guaranteed Obligations when due and owing, Beneficiary shall notify Company in writing of the manner in which Company has failed to pay and demand that payment be made by Company. If Company's failure or refusal to pay continues for a period of three (3) days after the date of Beneficiary's notice to Company, and Beneficiary has elected to exercise its rights under this Guaranty, Beneficiary shall make a demand upon Guarantor (hereinafter referred to as a "Payment Demand"). A Payment Demand shall be in writing and shall reasonably and briefly specify in what manner and what amount Company has failed to pay and an explanation of why such payment is due and owing, with a specific statement that Beneficiary is calling upon Guarantor to pay under this Guaranty. A Payment Demand satisfying the foregoing requirements shall be deemed sufficient notice to Guarantor that it must pay such Guaranteed Obligations and such payment shall be made to Beneficiary by Guarantor within three (3) days after receipt of such Payment Demand. A single written Payment Demand shall be effective as to any specific default under the Agreement that is susceptible of being cured by the payment of 2 money during the continuance of such default and additional written demands concerning such default shall not be required until such default is cured. SECTION 5. Nature of Guaranty. This Guaranty constitutes a guaranty of payment when due and not of collection, and Guarantor specifically agrees that it shall not be necessary or required that the Beneficiary exercise any right, assert any claim or demand or enforce any remedy whatsoever against Company, either before or as a condition to the obligations of Guarantor hereunder; provided that Guarantor shall have the benefit of and the right to assert any defenses against the claims of the Beneficiary which are available to Company, and which would have also been available to Guarantor if Guarantor had been in the same contractual position as Company under the Agreement, other than (i) defenses arising from the insolvency, reorganization or bankruptcy of Company, (ii) defenses expressly waived in this Guaranty, and (iii) defenses previously asserted by Company against such claims to the extent such defenses have been finally resolved in the Beneficiary's favor by a court of last resort or by arbitration conducted pursuant to the Agreement. For the avoidance of doubt, a payment shall be due for purposes of this Guaranty only when and if a payment is due and payable by Company to the Beneficiary under the terms and conditions of the Agreement. SECTION 6. Unconditional Obligations. An action may be brought and prosecuted against Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Company, or whether Company is joined in any such action or actions. The liability of Guarantor under this Guaranty shall be continuing, irrevocable, absolute and unconditional irrespective of, and Guarantor hereby irrevocably waives, any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than satisfaction in full of the Guaranteed Obligations. This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Beneficiary upon the insolvency, bankruptcy or reorganization of Company or otherwise, all as though such payment had not been made and, in such event, Guarantor will pay to the Beneficiary upon demand an amount equal to any such payment that has been rescinded or returned. SECTION 7. Waiver. Except as set forth in this Guaranty, Guarantor hereby unconditionally waives (a) presentment, demand of payment, protest for nonpayment or dishonor, diligence, notice of acceptance and any other notice with respect to any of the Guaranteed Obligations by the Beneficiary, and (b) any requirement that the Beneficiary enforce or exhaust any right or remedy or take any action against Company. SECTION 8. Subrogation; Setoffs and Counterclaims. Notwithstanding anything in this Guaranty to the contrary, and in addition to any other rights of the Beneficiary to which Guarantor or any of its designees may be subrogated, to the extent Guarantor shall make or cause to be made any payment pursuant to this Guaranty, Guarantor shall be subrogated to all rights the Beneficiary may have under the Agreement in respect thereof; provided, however, that Guarantor shall be entitled to enforce such right of subrogation only after all rights of the Beneficiary with respect to the Guaranteed Obligations shall have been fully satisfied. Without limiting Guarantor's own defenses and rights hereunder, Guarantor reserves to itself all rights, set -offs, counterclaims and other defenses to which Company or any other affiliate of Guarantor is or may 3 be entitled to arising from or out of the Agreement or otherwise, except for defenses arising out of the bankruptcy, insolvency, dissolution or liquidation of Company. SECTION 9. Representations and Warranties. Guarantor hereby represents and warrants, as follows: (a) Guarantor is a Societe anonime duly organized and validly existing under the laws of France. (b) The execution, delivery and performance by Guarantor of this Guaranty are within Guarantor's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) Guarantor's organizational documents, (ii) any contractual restriction binding on or affecting Guarantor or (iii) applicable law. (c) No authorization or approval by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by Guarantor of this Guaranty. (d) There is no action, suit or proceeding now pending or, to Guarantor's knowledge, threatened against Guarantor before any court, administrative body or arbitral tribunal that could be reasonably likely to have a material adverse effect on Guarantor's ability to perform its obligations under this Guaranty. SECTION 10. Governing Law. This Guaranty shall be governed by and interpreted in all respects in accordance with the laws of the State of New York, United States of America, without reference to conflicts of laws (other than Section 5-1401 and Section 5-1402 of the New York General Obligations Law). SECTION 11. Dispute Resolution. (a) Meeting. In the event a dispute, controversy, or claim arises between Guarantor and Beneficiary relating to this Guaranty, the aggrieved party shall promptly provide notice of the dispute to the other party after such dispute arises. A meeting shall be held within fifteen (15) days between the parties, attended by representatives of the parties with decision -making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. (b) Consent to Jurisdiction. Each of the Parties hereto hereby agrees that any legal action or proceeding arising out of or relating to this Guaranty, or for recognition or enforcement of any judgment shall be brought in or removed to the federal or state courts located in San Diego, California to the exclusion of any and all other courts, forums or venue. By execution and delivery of this Guaranty, the Parties hereto accept, for themselves and in respect of their property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each Party hereto hereby irrevocably consents to the service of process out of any of the aforementioned courts in any manner permitted by law. Each Party hereto hereby waives any right to stay or dismiss any action or proceeding under or in connection with this Guaranty brought before the foregoing courts on the basis of forum non-conveniens. 4 SECTION 12. Waiver of Jury Trial. EACH OF THE PARTIES KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED HEREIN, OR ARISING OUT OF, UNDER, OR IN RESPECT OF THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE BENEFICIARY OR GUARANTOR. SECTION 13. Amendments, Etc. No amendment or waiver of any provision of this Guaranty, and no consent to any departure by Guarantor or the Beneficiary herefrom, shall in any event be effective unless the same shall be in writing and signed by the Beneficiary and Guarantor and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. SECTION 14. Addresses for Notices. All notices and other communications provided for hereunder shall be in writing (including telecopier) and mailed, telecopied or delivered to each of the Parties as follows: if to Guarantor to: EDF Renewable Energy, Inc., 15445 Innovation Drive, San Diego, CA 92128-3432, Attention: Chief Financial Officer, Fax: (858) 521-3300, Telephone: (858) 521-3333, and if to the Beneficiary to: Weld County, Colorado Board of County Commissioners 1150 "O" Street Greeley, Colorado 80631 All such notices and other communications shall be effective (a) if mailed, five (5) Business Days after deposit in the mails, postage prepaid, certified or registered, return receipt requested, (b) if telecopied, when sent and receipt has been confirmed by telephone (c) if delivered by hand or by courier, when signed for by or on behalf of the relevant Party, and (d) if sent by overnight delivery service (e.g., Federal Express, Emery, DHL or AirBorne), on the next Business Day. SECTION 15. No Waiver Remedies. No failure on the part of the Beneficiary or Guarantor to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. SECTION 16. Severability. In case any one or more of the provisions contained in this Guaranty should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 17. Counterparts. This Guaranty may be executed in one or more counterparts. Delivery of an executed signature page of this Guaranty by facsimile transmission shall be effective as delivery of a manually executed counterpart thereof. 5 SECTION 18. Entire Agreement. This Guaranty and any agreement, document or instrument referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect of the subject matter hereof. SECTION 19. Continuing Guaranty. Notwithstanding anything to the contrary in the Agreement, this Guaranty is a continuing guaranty and shall remain in full force and effect until the earliest to occur of (a) the first anniversary of the termination or expiration of the Agreement by its terms or (b) payment in full of the Guaranteed Obligations. SECTION 20. Successors and Assigns. This Guaranty shall be binding upon the Parties and their successors and assigns and inure to the benefit of and be enforceable by the Parties and their successors and assigns. [SIGNATURE PAGE FOLLOWS] 6 IN WITNESS WHEREOF, Guarantor and the Beneficiary have caused this Guaranty to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written. EDF Renewable Ery tgy, Inc. By: N : ristan Grimbert Title: President and CEO Accepted and agreed to as of the date first above written: By: Name: Title: 7 Hello