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Home My WebLink About20091864.tiffRESOLUTION RE: APPROVE RESTRICTIVE COVENANT FOR USE BY SPECIAL REVIEW PERMIT #1339 AND AUTHORIZE CHAIR TO SIGN -ANACAPA LAND COMPANY, LLC (AN AFFILIATE OF ROCKY MOUNTAIN ENERGY CENTER, 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, the Board has been presented with a Restrictive Covenant for Use by Special Review Permit #1339, between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Planning Services, and Anacapa Land Company, LLC, (an affiliate of Rocky Mountain Energy Center, LLC) commencing upon full execution, with further terms and conditions being as stated in said covenant, and WHEREAS, after review, the Board deems it advisable to approve said covenant, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Restrictive Covenant for Use by Special Review Permit #1339, between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Planning Services, and Anacapa Land Company, LLC, (an affiliate of Rocky Mountain Energy Center, LLC) be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said covenant. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 5th day of August, A.D., 2009. Of\RD OF CO NTY COMMISSIONERS LD COU COLORADO ATTEST: Weld County Clerk to the Boa BY APP Dedu Cler o the Board M County Attorney Date of signature. (61(71CCI liouglas adem: her, ro-Tem EXCUSED Sean P. Conway t3ac�ra Kirkmeyer 7 E David E. Long 60 i oleic=� 2009-1864 PL1582 C /:..).L1 ( c HOLLAND&HART, PR July 16, 2009 Bruce Barker Weld County - County Attorney P.O. Box 758 Greeley, CO 80632 Re: Restrictive Covenant Dear Bruce: Beat U. Steiner Phone (303) 473-2736 Fax (303) 473-2720 bsteiner@hollandhart.com Enclosed are two originals of the Restrictive Easement between Anacapa Land Company, LLC and Weld County for signing by Weld County. They have both been signed by Anacapa. Please fill in the date on the front page as the date that Weld County signs the document. After signing, please send one original to the Weld County Clerk and Recorder for recording, or if you prefer, return it to me and I will record it. If you record the Easement, please have the original recorded Easement returned to us. If you want to keep the recorded original Easement, please return the second fully signed original to US. If you have any questions, please call. Sincerely, 1_1 Beat U. Steiner of Holland & Hart LLP BUS:jmf Enclosures 4570726_1. DOC 2009-1864 Holland &Hart up i 1 J--.^. Phone [3031473-2700 Fax [303]473-2720 www.hollandhart.com • ' 'n p�. i 7 -i CI One Boulder Plaza 1800 Broadway Suite 300 Boulder, Colorado 80302 1— �} Aspen Billings Boise Boulder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Salt Lake City Santa Fe Washington, D.C. c) RESTRICTIVE COVENANT 902 THIS RESTRICTIVE COVENANT ("Covenant") is entered this -_ day of filli9te 2009, by ANACAPA LAND COMPANY, LLC, a Delaware limited liability company ("Grantor"), whose address is 717 Texas Avenue, Suite 1000, Houston, Texas 77002, to and for the benefit of WELD COUNTY, a political subdivision of the State of Colorado (the "County"), whose address is 915 Tenth Street, P. O. Box 758, Greeley CO 80632. RECITALS A. Grantor is the sole and lawful owner of property located in Weld County, Colorado, and more particularly described in Exhibit A attached hereto (the "Property"), and is authorized to grant this Covenant. B. In connection with certain land use approvals granted by Weld County to Rocky Mountain Energy Center, LLC for the Rocky Mountain Energy Center ("RMEC"), Grantor offered to maximize the preservation of the current agricultural use of a significant portion of its property. Specifically, Development Standard Number 2 of the Resolution approving the Use -by -Special Review permit by the Board of County Commissioners of Weld County, dated February 6, 2002 ("USR-1339"), states, "In accordance with the application, the RMEC design will preserve a significant amount of farmland and environmentally significant area of the Power Generation Facility Property for the term of the Use by Special Review Permit." C. In furtherance and fulfillment of that offer, Grantor (an affiliate of Rocky Mountain Energy Center, LLC) has agreed to grant a restrictive covenant against the Property as set forth herein. AGREEMENT NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor hereby covenants and agrees to restrict all future use of the Property, upon and subject to the following terms and conditions: 1. Covenant. Grantor, hereby covenants and agrees that the Property shall, from and after the date hereof, be used for Agricultural Purposes and other purposes incidental or accessory thereto and for no other purposes whatsoever. For purposes of this Covenant, "Agricultural Purposes" shall mean cultivating land, producing crops, vegetables, plants, flowers and nursery stock, ranching, raising livestock and preparation of agricultural products for use or consumption, and shall include, without limitation, livestock grazing and feeding, gardening, keeping the land planted with native vegetation, mineral exploration and extraction (limited to oil and gas exploration and production) and any other uses permitted as a "use -by -right" within Agricultural Zone Districts (or any counterpart under any future land use laws applicable to the Property) of Chapter 23 of the Weld County Code, or any combination thereof. Road access to and from the power plant facilities located on the lands of Grantor and/or RMEC (and their respective successors and assigns) shall be allowed to be constructed and maintained on the Property and shall comply with any requirements or restrictions of such access which may be set forth in USR-1339 or the Weld County Code. The foregoing shall be subject to, and the use of the Property shall at all times comply with, all zoning and other Weld County land use requirements applicable to the Property and in effect from time to time (including the benefit of any grandfathered rights applicable at any t'me to the Property or uses or improvements thereon). At no time during the term of this 1 111111111111111111111 111111 III 11111111 111 11111 IIII IIII 3643902 08/20/2009 11:44A Weld County, CO 1 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder - /d'& 'V Agreement, or anytime subsequent to its termination, shall the County be responsible for maintaining the Property, or for general liability associated with its use and maintenance. 2. Termination. This Covenant shall continue in perpetuity unless terminated in writing (which termination may relate to all or any portion of the Property) by the then owner of the Property (or portion thereof as to which this Covenant is terminated) and Weld County. 3. Covenant Runs With the Land. This Covenant shall constitute a restrictive covenant, which shall run with the Property for the benefit of Weld County until its termination pursuant to Paragraph 2. above. The terms and obligations of this Covenant shall be binding upon Grantor and its successors and assigns and shall inure to the benefit of Weld County and its successors and assigns. 4. Enforcement. This Covenant is enforceable by and only by Weld County. Weld County shall have the right to prevent and correct or require correction of violations of the provisions of this Covenant. Weld County shall have the right to seek specific performance, injunctive or other equitable relief with respect to any violations of this Covenant. 5. No Benefit to Third Parties. This Covenant does not and shall not be deemed to confer upon or grant to the public or any person not a party hereto any rights whatsoever and, except as provided in Paragraph 4 above, no person shall have the right to enforce, claim damages or to bring any lawsuit, action or other proceedings against either Grantor or Weld County because of any breach hereof, or because of any of the terms, covenants, agreements or conditions contained herein. 6. Waiver. Enforcement of the provisions of this Covenant shall be at the discretion of Weld County. Any failure of Weld County to discover a violation or any forbearance to exercise its rights hereunder shall not be deemed or construed to be a waiver of such provisions or of any subsequent breach of the same or any other provisions of this Covenant or of any of Weld County's rights hereunder or an abandonment of any rights, duties or responsibilities hereunder. 7. Attorneys Fees. In the event of any litigation arising under or relating to this Covenant, the substantially prevailing party in such litigation shall be awarded its reasonable costs and expenses, including, without limitation, reasonable attorney's fees. 8. Recordation. Weld County may record this Covenant in the real estate records in the office of the Clerk and Recorder of Weld County, Colorado. 9. Governing Law. The laws of the State of Colorado shall govern the interpretation and performance of this Covenant. Venue for any action or proceeding arising under or relating to this Covenant shall only be proper in Weld County, Colorado. 10. Severability. In the case one or more of the provisions contained in this Covenant, or any application hereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this Covenant and the application thereof shall not in any way be affected or impaired. 11111111111111111 IIII 111111 III 11111111 III HIM IIII 3643902 08/20/2009 11:44A Weld County, CO 2 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder 2 IN WITNESS WHEREOF, Grantor and Weld County have executed this Covenant as of the date first above written. ANACAPA LAND COMPANY, LLC, a Delaware limited liability company By: L'.C /L Name: vu. -TlnrnAr{eus ATTEST: Clerk to the Board By: Deputy Cler to the '$ .t Name. AT ES I;h O E3,, '1J1ITYTitle: CONM ISSiONER SIGNATURES ONLY STATE OF t ex c -co ) ss. COUNTY OF IArIvoc..5 ) The foregoing instrument was acknowledged before me on -iu\ 14- 2009, by kL-Thn&Lauc M, Ilr e, aS \--et • 1 Q S ire VQ., ofAnacapa Land Company, LLC, a Delaware limited liability company. Title: LYn; PA G p c Ed o-CQ p 2 WELD COUNTY, a political subdivision k of the State of Colorado C Wil iam . Garcia Chair, Board of Weld County Commissioners AUG 0 5 2009 Witness my hand and official seal My commission expires {SEAL HILDA GONZALES My Commission Expires June 07, 2013 STATE OF COLORADO ) ) SS. COUNTY OF WELD The foregoing instru William F. Garcia subdivision of the State of Witness my hand and officia edged before me on August 5 2009, by of Weld County, a political My commission expires my CommIccan Explrcc May 15, 2010 {SEAL} 1111111 VIII 1111111111111111 III 11111111 III I1I1I IIII IIII 3643902 08/20/2009 11:44A Weld County, CO 3 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder 3 r< -1--- Notaryr- ublic EXHIBIT A TO RESTRICTIVE COVENANT Legal Description and Depiction of the Property See attached page(s) 4461091_7.DOC 1 111111 11111 111111 1111 111111 III 1111111 III 111111111 IIII 3643902 08/20/2009 11:44A Weld County, CO 4 of 6 R 0.00 0 0.00 Steve Moreno Clerk & Recorder A-1 EXHIBIT "A" A PART OF SECTION 31, TOWNSHIP 2 NORTH AND THE NORTHWEST QUARTER OF SECTION 6, TOWNSHIP I NORTH , RANGE 64 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF WELD, STATE OF COLORADO SHEET 1 OF 2 Parcel Description A PARCEL OF LAND LOCATED IN SECTION 31, TOWNSHIP 2 NORTH AND IN THE NORTHWEST QUARTER OF SECTION 6, TOWNSHIP 1 NORTH, RANGE 64 WEST OF THE 6Th P.M., WELD COUNTY, COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 31: THENCE ALONG THE SOUTH LINE OF SAID SECTION 31, N88'08'14"E, A DISTANCE OF 30.00' FEET, TO A POINT ON THE EASTERLY R.O.W. LINE OF WELD COUNTY ROAD 49, SAID POINT BEING THE POINT OF BEGINNING; THENCE NOO'25'59"W, ALONG SAID EASTERLY R.O.W. LINE, A DISTANCE OF 2693.27 FEET TO A POINT ON THE EAST -WEST CENTERLINE OF SAID SECTION 31; THENCE NOO'29'19"W, ALONG SAID EASTERLY R.O.W. LINE, A DISTANCE OF 2103.75 FEET TO A POINT ON THE SOUTHERLY UNE OF THE RAILROAD R.O.W. BOOK 86 AND PAGE 457; THENCE ALONG THE SOUTHERLY LINE OF SAID RAILROAD R.O.W. 923.38 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 6255.32 FEET, AN INCLUDED ANGLE OF 08'27'28" AND SUBTENDED BY A CHORD BEARING NORTH 51'37'18" EAST, A DISTANCE OF 922.55 FEET TO A POINT ON THE SOUTHERLY R.O.W. UNE OF WELD COUNTY ROAD 16; THENCE N88'53'22"E, ALONG THE SAID SOUTHERLY R.O.W. LINE, A DISTANCE OF 3164.45 FEET TO A POINT ON THE WESTERLY LINE OF RECORDED EXEMPTION NO. 1305-31-1-RE628; THENCE S00'17'54"W, ALONG SAID WESTERLY LINE, A DISTANCE OF 1141.09 FEET TO THE NORTHEAST CORNER OF THAT PARCEL DESCRIBED AT RECEPTION NO. 3267392; THENCE N89'42'06"W, ALONG THE NORTHERLY UNE OF SAID RECEPTION NO. 3267392, A DISTANCE OF 37.07 FEEL THENCE S00'17'54"W, ALONG THE WESTERLY LINE OF SAID RECEPTION NO. 3267392, A DISTANCE OF 1436.99 FEET; THENCE CONTINUING ALONG SAID WESTERLY LINE S00'16'57"W, A DISTANCE OF 254.88 FEET TO A POINT OF INTERSECTION OF SAID WESTERLY UNE AND THE NORTHERLY UNE OF THE ROCKY MOUNTAIN ENERGY PARCEL DESCRIBED AT RECEPTION NO. 2960526 AS BEING THE "PERMIT PROPERTY POWER GENERATION FACILITY SITE"; THENCE 589'30'04"W, ALONG THE NORTHERLY LINE EXTENDED AND THE NORTHERLY LINE OF SAID RECEPTION NO. 2960526, A DISTANCE OF 2322.71 FEET; THENCE 500'31'26"E, ALONG THE WESTERLY LINE OF SAID RECEPTION NO. 2960526, A DISTANCE OF 1961.35 FEET; THENCE N89'25'06"E, ALONG THE SOUTHERLY LINE OF SAID RECEPTION NO. 2960526, A DISTANCE OF 1967.56 FEET TO THE SOUTHEAST CORNER THEREOF; THENCE SO0'33'39"E, ALONG THE EASTERLY UNE EXTENDED OF SAID RECEPTION NO. 2960526, A DISTANCE OF 524.08 FEET TO A POINT ON THE SOUTH UNE OF THE SOUTHEAST QUARTER OF SECTION 31; THENCE S88'08'19"W, ALONG SAID SOUTH UNE, A DISTANCE OF 1045.57 FEET TO A SOUTH QUARTER CORNER OF SAID SECTION 31; THENCE S88'08'14"W ALONG THE SOUTH LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 31, A DISTANCE OF 474.99 FEEL THENCE SOO'37'09"E, ALONG A LINE PARALLEL WITH THE WESTERLY LINE OF THE NORTHWEST QUARTER OF SAID SECTION 6, A DISTANCE OF 575.00 FEET; THENCE 588'08'14"W ALONG A UNE PARALLEL WITH THE NORTHERLY LINE OF THE NORTHWEST QUARTER OF SAID SECTION 6, A DISTANCE OF 840.72 FEET TO A POINT ON THE EAST UNE OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 6; THENCE SO1'32'39"E, ALONG THE EASTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER, A DISTANCE OF 724.89 FEET; THENCE 588'27'56"W, ALONG THE SOUTHERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER, A DISTANCE OF 1117.07 FEET TO A POINT ON THE EASTERLY R.O.W. LINE OF WELD COUNTY ROAD 49; THENCE N00'37'09"W, ALONG SAID EASTERLY R.O.W. LINE, A DISTANCE OF 1293.65, TO THE POINT OF BEGINNING. I, JOHN B. GUYTON, A LICENSED LAND SURVEYOR IN THE STATE OF COLORADO, DO HEREBY STATE FOR AND ON BEHALF OF FLATIRONS, INC., THAT THIS PARCEL DESCRIPTION AND ATTACHED EXHIBIT, BEING MADE A PART THEREOF, WERE PREPARED BY ME OR UNDER MY RESPONSBLE CHARGE AT THE REQUEST OF THE CLIENT AND IS NOT INTENDED TO REPRESENT A MONUMENTED LAND SURVEY OR SUBDIVIDE LAND N VIOLATION OF STATE STATUTE. 1 111111 11111 111111 III1 111111 III 11111111 III 11111 1IIl I'll 3643902 08/20/2009 11:44A Weld County, CO 5 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder JOHN B. GUYTON COLORADO P.L.S. #16406 CHAIRMAN/CEO, FLATIRONS, INC. FSI JOB NO. 09-100,357 FSI JOB NO. 09-100,357 DRAWN BY: E.DAVIS DATE: 5-5-2009 THIS IS NOT A 'LAND SURVEY PLAT' OR 'IMPROVEMENT SURVEY PLAT" AND THIS EXHIBIT IS NOT INTENDED FOR PURPOSES OF TRANSFER OF TITLE OR SUBDIVISIONS OF LAND. THIS EXHIBIT IS INTENDED TO DEPICT THE ACCOMPANYING PARCEL DESCRIPTIONS. RECORD INFORMATION SHOWN HEREON IS BASED ON INFORMATION PROVIDED BY CUENT. Flatirons, Inc. Surveying, Engineering & Geomatics MAIN OFFICE 3825 IRIS AVENUE. /100 BOULDER, CO 80301 PH: (303) 443-7001 FAX: (303) 443-9830 www.Flanrons/nc.com BRANCH OFFICE 655 FOURTH AVENUE LONGMONT, CO 80501 PH: (303) 776-1733 FAX: (303) 776-4355 EXHIBIT "A" SHEET 2 OF 2 WELD COUNTY ROAD NO.16 60' R.O.W.) 0 z ▪ ,..., o• a0 za o m U a a P.O.C. N88'O8'14 30.00' Hn N 0 N N88'53 22 E AILROAD R.O.W. BK 86, PG 457 =6255.32' L=923.38' D=827'28" CH=N51'37'18'E 922.55' 3164.45 3 to N o: N89'42'O6" 37.07' 400.32 AGES OR 17.437,939 SQ. FT.. MORE OR LESS SEC. 31, IT2N, N R64WI o o LAND AIRPORT) LLC--N z RECEPTION NO. 32617392 --"4 N M rn co s 0 N 0 z .0.B. w om MM O) 'o N z Z 588'27'56"W 1117.07' in M a W N M) 0 N S89'3O'O4)'W 2322 71' ROCKY ENERGY RECEPTION OUNTAIN NTER, LLC 0. 2960526 N8925'O6'E 1967.56' S88'O8'14"V1\ 474.99' \ I °i 8 S88.O8.1411W M N 840.72' N SEC. S88'O8'19"W 1045.57' SOO'37'O9"E 575.00' 6, TIN, 1 111111 11111 111111 11II 111111 III 11111111 111 11111 1111 1111 3643902 08/20/2009 11:44A Weld County, CO 6 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder THIS IS NOT A 'LAND SURVEY PLAT' OR "IMPROVEMENT SURVEY PLAY AND THIS EXHIBIT IS NOT INTENDED FOR PURPOSES OF TRANSFER OF TITLE OR SUBDIVISIONS OF LAND. THIS EXHIBIT IS INTENDED TO DEPICT THE ACCOMPANYING PARCEL DESCRIPTIONS. RECORD INFORMATION SHOWN HEREON IS BASED ON INFORMATION PROVIDED BY CIJENT. 4W Z 0 0 u J a Dc xi x Ohr.N ) of Qoco O Zrl 0 < .Jw0 z L 'SOO'16'57'W 254.88' �-SOO'33'39"E 524.08' in 0 etc a� 0 zao m 0 U 5 GRAPHIC SCALE 1000 0 500 1000 ( IN FEET ) 1 inch = 1000 ft. FSI JOB NO. 09-100,357 DRAWN BY: E.DAVIS DATE: 5- 5-2009 Flatirons, Inc. Surveying, Engineering & Geomatics MAIN OFFICE 3825 IRIS AVENUE, 1100 BOULDER, CO 80301 PH: (303) 443-7001 FAX: (303) 443-9830 www.F7ahronsincco BRANCH OFFICE 655 FOUR7H AVENUE LONGMONT, CO 80501 PH: (303) 776-1733 FAX: (303) 776-4355 Hello