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Home My WebLink About20091047.tiffRESOLUTION RE: APPROVE AGREEMENT TO USE ACCESS ROUTES ALTERNATIVE TO LOWELL LANE AND AUTHORIZE CHAIR TO SIGN - SUN DROP FUELS, INC. 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 an Agreement to Use Access Routes Alternative to Lowell Lane 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 Public Works, and Sundrop Fuels, Inc., commencing April 23, 2009, and ending on or before June 25, 2011, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, 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 Agreement to Use Access Routes Alternative to Lowell Lane 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 Public Works, and Sundrop Fuels, Inc., be, and hereby is, approved. 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 4th day of May, A.D., 2009, nunc pro tunc April 23, 2009. ATTEST: Weld County Clerk to th BY Deputy Cler to the Boa yy� (f� AYE 7 Se Conway APPROVES ASj-otM: �R,4p , , A/Led/w (AYE) / ' -' rbara Kirkmever ]] / BOARD OF COUNTY COMMISSIONERS WELD 99UI 'X COLORADO (NAY) William F. Garcia, Chair /el 12-/2 mss/ (AYE) s Rademadher, Pro-Tem unty Attorney Date of signature. -570L % EXCUSED David E. Long C`(" ✓� z, PL-, ilJ}L1 2009-1047 EG0060 O S/a) ( Attt. "iv COLORADO MEMORANDUM TO: Board of County Commissioners May 1, 2009 FROM: David Bauer, Department of Public Works SUBJECT: Lowell Lane Complaints and Road Use Agreement The following is background for the Sundrop/Weld County Road Use Agreement. Public Works received citizen complaints from Ranch Eggs Subdivision residents concerned about heavy construction and oil field traffic using Lowell Lane. Lowell Lane is a 2 -lane paved local subdivision road east of CR 7 bordered on the south by the City and County of Broomfield. The truck traffic of concern accesses a group of Encana oil and gas wells and tank batteries for which Broomfield has granted a USR within a larger mixed use PUD. Lowell Lane has experienced excessive wear and some damage from the Encana oil haul trucks. A second Broomfield USR involving recent heavy construction traffic has also used Lowell Lane to access a biomass to gasoline solar 'research' facility currently under construction. This solar facility, owned by Sundrop Fuels, is located just south of Lowell Lane, will include 4,000 mirrors, a tower, small office, and an energy processing facility. We have met with the City Engineer from Broomfield, the developer of the PUD south of Ranch Eggs Subdivision, and the solar to gasoline 'research' facility developer. Encana has been contacted by telephone. We explained our issues of concern, including the incompatibility of construction traffic with a subdivision road. Broomfield claimed that it was not aware that it was directing USR traffic onto a Weld County road; rather, they thought it was their road. The Sundrop site manager has negotiated in good faith to reduce impacts to Lowell Lane. A limited number of semi -trucks delivered construction materials using Lowell Lane; however, most deliveries have accessed the site from the south on a dirt road through the PUD property which is within Broomfield's jurisdiction. Following mirror assembly and building construction, the facility will revert to operations with 3 to 5 employees using cars. During operations, Sundrop wishes to use Lowell for deliveries of bio-mass fuel for the solar to gasoline facility. The solar to gasoline facility is proposed to be temporary — with a proposed three (3) years of research operations. The road use agreement negotiated with Sundrop formalizes Public Works' requirements: 1) access primarily from the south, weather permitting; 2) limited use of Lowell Lane; 3) no heavy hauling during times when school children walk the road; and 4) the County retains the right to deny access to the USR site via Lowell Lane. Still to be determined are restrictions or elimination of Encana's use of Lowell Lane, identifying responsibility (developer, Encana, Broomfield), and the timing and funding to provide a permanent southern access to the Encana USR oil and gas wells and tank battery. aao9-1x47 sun drop f ue Is Mr. David Bauer, P. E. CFM County Engineer/Development Review Weld County Public Works Department 1111H Street Post Office Box 758 Greeley, CO 80632-0758 Reference: Lowell Lane Access Agreement and ROW Permit Application Dear David, 1722 Boxelder, Suite 101 Louisville, CO 80027 T 720.890.6501 F 303.926.0640 www.sundropfuels.com April 23, 2009 Enclosed please find two executed originals of the "Agreement to Use Access Routes Alternative to Lowell Lane" with an additional edited redline from your draft of April 20, 2009. I have also enclosed a copy of the Construction Drawings for the grading and other civil work including the improvements for access to Lowell Lane, and a Weld County Public Works Department Right -of -Way Permit Application (including Administrative and Inspection Fee and the Stormwater Discharge Permit from the Colorado Department of Public Health and Environment issued for the project) as required by the Agreement. Please have the Agreement signed by the appropriate authorities and return one original to us with an issued Right -of -Way Permit. Thank you for your assistance in this matter. Sincerely, Andy Min Director, Product Management Enclosures(5) cc: Tom Ferrill, Rutan & Tucker LLP 2009-1047 �% AGREEMENT TO USE ACCESS ROUTES ALTERNATIVE TO LOWELL LANE THIS AGREEMENT, made and entered into this 23`d day of April, 2009, by and between the County of Weld, State of Colorado, by and through the Board of County Conunissioners of the County of Weld ("County"), whose address is 915 Tenth Street, Greeley, Colorado 80631 and Sundrop Fuels, Inc. ("Sundrop"), whose address is 1722 Boxelder Street, Suite 101, Louisville, CO 80027. WITNESSETH: WHEREAS, County has a right-of-way that it maintains located adjacent to the jurisdictional boundaries of the City and County of Broomfield, known as "Lowell Lane," and WHEREAS, Sundrop has been issued a special use permit by Broomfield County for a solar energy -to -fuels research facility, located on an approximately 4 acre tract in Palisade Park Filing #1, with proposed entrances onto Lowell Lane, to be located at approximately 1000 feet and 600 feet from the southwest corner of the intersection of Lowell Lane and the future alignment of Huron Street, with construction traffic anticipated at 40 plus semi -truck deliveries of equipment and building materials over the next 4 months, followed by daily 5 to 10 employee trips and weekly large and/or light truck deliveries or waste removal utilizing Lowell Lane during the following 24 months of normal operations, and WHEREAS, with said heavy truck traffic by Sundrop and other third parties not affiliated with Sundrop, nor party to this Agreement, Lowell Lane has already experienced damage, which such other third parties have already repaired, or have agreed with County to have repaired, with no obligation on the part of Sundrop to participate in such repairs, and WHEREAS, it is anticipated that continued heavy use truck traffic on Lowell Lane might further damage the roadway, because it was not designed or paved for such regular heavy truck hauling, and WHEREAS, County and Sundrop agree to the establishment of alternative haul routes, and WHEREAS, Sundrop has already diverted the bulk of construction traffic away from Lowell Lane and onto such temporary haul routes, all according to the terms and conditions set forth herein. 1111111111111111111111111H 111111 IIIII III 111111111 III! 1 3624442 05/21/2009 12:29P Weld County, CO 1 of 4 R 0.00 0 0.00 Steve Moreno Clerk & Recorder t NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. TERM: The term of this Agreement shall be for the duration of the Sundrop Lease Agreement (which shall terminate on or before June 25, 2011) or shall terminate at such time as County either vacates Lowell Lane, or upon annexation of said street by Broomfield, whichever occurs first. 2. AGREEMENTS BY SUNDROP: a. Sundrop agrees that Lowell Lane, a local suburban street is not an appropriate haul route for construction traffic. b. Sundrop agrees to utilize an alternative haul route to their site under the jurisdiction of Broomfield County as soon as practicable with an initial implementation by means of an existing unimproved dirt road, but eventually by means of an all-weather surface upgrade to such dirt road. The preferred route into the site is through Broomfield's jurisdiction, accessing the site from the south, not via Lowell Lane. c. Pending completion of an all weather upgrade to the existing unimproved dirt road as referred to in Paragraph 2b above, and in the event that inclement weather results in the unsuitability of access to the Sundrop site from the south, Sundrop will notify Weld County Public Works on a daily as needed basis of the need to utilize Lowell Lane prior to any such use. d. Sundrop further agrees that all construction -phase and equipment deliveries, as referred to in Paragraph 2c above, will avoid heavy hauling on Lowell Lane during the hours of 7 a.m. to 9 a.m., and 2:30 p.m. and 4 p.m. so as to avoid using Lowell Lane when school children are walking to or from school bus stops. e. Sundrop will submit to County construction drawings showing their proposed access point improvements on Lowell Lane. Any construction in the Weld County Right -Of -Way, whether completed or proposed, shall require application for and approval of a Weld County ROW permit. f. Sundrop understands that failure to observe the requirements of this agreement may result in closure of Lowell Lane to Sundrop traffic. 3. AGREEMENTS BY COUNTY: a. County shall cooperate with Sundrop by reviewing construction drawings showing Sundrop's proposed access point improvements on Lowell Lane determining requirements for constructed improvements.. 1111111 11111 111111 11111 11111 111111111111111111111111111 2 3624442 05/21/2009 12:29P Weld County, CO 2 of 4 R 0.00 D 0.00 Steve Moreno Clerk & Recorder b. County shall grant to Sundrop occasional temporary heavy truck access to the Sundrop site from Lowell Lane under the conditions referred to in Paragraph 2c and 2d above. c. County shall grant to Sundrop permanent light delivery truck and personal vehicle access to the Sundrop site from Lowell Lane. d. County shall not hold Sundrop liable for any damage to Lowell Lane as may or may not have occurred prior to the execution date of this Agreement. 4. ALTERNATIVE REMEDIES: No provision of this Agreement shall be deemed to bar the County from seeking appropriate judicial relief Neither the existence of other remedies identified in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to recover monetary damages for violations by Grantee, or to seek and obtain judicial enforcement of Grantee's obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. The County specifically does not, by any provision of this Agreement, waive any right, immunity, limitation or protection otherwise available to the County, its officers, officials, County Boards, commissions, agents, or employees under federal, State, or local law. 5. ENTIRE AGREEMENT: This instrument embodies the entire agreement of the parties with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations other than those contained herein; and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or. written, between the parties hereto. No modification to this Agreement shall be valid unless agreed to in writing by the parties hereto. 6. BINDING EFFECT: This Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors in interest. 7. NO THIRD -PARTY 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 in this agreement shall give or allow any claim or right of action whatsoever by any other person not included in this agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this agreement shall be an incidental beneficiary only. 8. NO WAIVER OF IMMUNITIES: No portion of this agreement shall be deemed to constitute a waiver of any immunities the parties or their officers or employees may possess, nor shall any portion of this agreement be deemed to have created a 1111111 11111 111111 11111 11111 111111 11111 III 11111 IIII IIII 3 3624442 05/21/2009 12:29P Weld County, CO 3 of 4 R 0.00 D 0.00 Steve Moreno Clerk & Recorder duty of care which did not previously exist with respect to any person not a party to this agreement. 9. SEVERABILITY: If any term or condition of this agreement shall be held to be invalid, illegal or unenforceable, this agreement shall be construed and enforced without such a provision, to the extent this agreement is then capable of execution within the original intent of the parties. ATTEST: Weld County Clerk By Deputy Clerk to 1 11111111111111111 111111111111111111111 III 111111I1I 1111 3624442 05/21/2009 12:29P Weld County, CO 4 of 4 R 0.00 D 0.00 Steve Moreno Clerk & Recorder 5O'2 _/t97 OUNTY OF WELD, a political subdivision the STATE OF COLORADO: William I': Garcia, Chairman Board of County Commissioners, County of Weld SUNDROP FUELS, INC. By: Title: Date: 4 9 �}. 7w....,' Sr. V p En, �y/�3/Oy MAY 0 4 2009 EXHIBIT U Hello