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Home My WebLink About20243270.tiffCov\-1rac.x SO # 88910 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: BOCC Agenda Item - Approve Improvements and Road Maintenance Agreement for: Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 DEPARTMENT: Planning Services DATE: November 19, 2024 PERSON REQUESTING Jazmyn Trujillo -Martinez Brief description of the problem/issue The Department of Planning Services received a request from the applicant, Liberty Power Innovations LLC, requesting that the Board of County Commissioners consider approving the Improvements and Road Maintenance Agreement for (USR23-0042). No collateral is required with this agreement. Weld County Planning Services, Public Works, and the County Attorneys Office have rev'ewed the above mentioned signed original document and observed the following: • All Public Works related items, of the 'Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements''. are found to be acceptable. • This Agreement complies with the terms of the Use by Special Review Permit Resolution, as signed by the Board of County Comm ssioners. What options exist for the Board? (include consequences, impacts, costs, etc. of options): 1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda 2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda 3. Have this BOCC Hearing item not placed on the next available agenda as neither part of the Consent Agenda nor the Regular Agenda. Consequences: • New development car pay their way for their impacts on the County Roadways, or the County will be required to cover the costs of the new development's impacts cn the roadways Impacts: • New development with high traffic volumes impacts the County Road systems and causes wear and tear more quickly than normal traffic volumes. Costs (Current Fiscal Year / Ongoing or Subsequent Fiscal Years): • New development will pay their proportional share of repairs and upgrades completed by the County and the County will not be requ red to have a share in any improvements requ red if new development meet any future traffic triggers. Recommendation: Option 1. The Departments of Planning Services, Pub is Works, and the County Attorney's Office are recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements for USR23-0042, and that this item be placed on the next regularly scheduled BOCC Hearing, as par: of the Consent Agenda Support Recommendation Schedule Place on BOCC Agenda Work Session Perry L. Buck Pro -Tern Mike Freeman Scott K James Kevin D Ross. Chair Lori Sane C 6 V\S jot\ R%trcka. is-ki-a4 Other/Comments: Gl�( PLCfla/srkt/KR/MN) O%13%125 2024-3270 41-42 01) 3-la-as IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 THIS AGREEMENT is made this 11th day of November, 2024, by and between Michael Boulter Farms, LLC, 22019 County Road 54, Greeley, Colorado 80631, c/o Liberty Power Innovations LLC, 110 S. Paige Avenue, Box 314, Glendo, Wyoming 82213, 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: Lot B of Amended Recorded Exemption, AMRE-4936; being part of the S1/2 SI/2 SW1/4 of Section 31, Township 5 North, Range 64 West of the 6t' P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner has received Board of County Commissioner conditional approval of USR23-0042, and WHEREAS, Property Owner acknowledges that the final approval of USR23-0042 is conditional upon Property Owner's funding and/or construction of the off -site improvements and road maintenance described in this Agreement and depicted in the following incorporated exhibits: Exhibit A — Future Improvements Costs of Construction, to be attached if/when triggered, pursuant to Part I, B.3.0, below, Exhibit B — Future Improvements Construction Schedule, to be attached pursuant to Part I, B.4.0, below, Exhibit C — Construction Plans, to be attached if/when triggered pursuant to Part I, A.3.0, below, Exhibit D — Plat Map (recorded simultaneously with this Agreement), and WHEREAS, Property Owner acknowledges that pursuant to the provisions of Weld County Code Sec. 23-2-290, the failure to commence construction of the improvements outlined herein within three (3) years of the approval of USR23-0042 may result in the revocation or suspension of USR23-0042, upon consideration and order of the Board of County Commissioners, and WHEREAS, the parties agree that the Property Owner shall provide collateral for off -site improvements as required by this Agreement if/when improvements are triggered. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: 5000717 Pages: 1 of 12 12/18/2024 12:06 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County , CO Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 — IA24-0006 Page 1 of 12 PART I: SITE SPECIFIC PROVISIONS A. Off -Site Improvements (as required by the BOCC): The Property Owner shall be responsible for the construction of off -site safety improvements identified in the USR hearing Resolution, which include, but are not limited to: construction of adequate turning radii of sixty-five (65) feet at the main entrances and exits which extend into County road Rights -of -Way (ROW) connecting to the County road system, and off -site drainage and signage installations, as indicated on the accepted Exhibit D and future Exhibit C, as required. On -Site improvements that create more run-off than the historical amount may require off -site drainage improvements to roads and ROW. Any approved access point(s) improvements will include standard County approved tracking control, to ensure a complete revolution of the truck tires in order minimize the tracking of mud and debris onto the adjacent County Road. B. Future Off -Site Improvements: 1.0 Traffic Triggers. When the traffic associated with the Use by Special Review Permit reaches certain safety thresholds as set forth in this agreement, the Property Owner shall design, and construct required road improvements based on the amount of traffic being generated by the site. The Property Owner's development does not currently meet the traffic safety triggers requiring the improvements specified below; however, off -site or phased improvements may be warranted in the future. 1.1 Property Owner shall be required to design, obtain right-of-way, relocate utilities, and construct said auxiliary lanes into their site if/when all traffic to/from the Property meets the following traffic triggers: Property Owner shall design and construct a left deceleration/turn lane on County Road 50 whenever traffic exceeds 10 vehicles per hour (VPH) turning left into the Property for an average daily peak hour. Property Owner shall design and construct a right deceleration/turn lane on County Road 50 whenever traffic exceeds 25 VPH turning right into the Property for an average daily peak hour. Property Owner shall design and construct a right acceleration lane on County Road 50 whenever traffic exceeds 50 VPH turning right out of the Property for an average daily peak hour. Property Owner shall design and construct a left acceleration lane on County Road 50 whenever such a lane would be a benefit to the safety and operation of the roadway. The County, in its sole discretion, shall determine if a left acceleration lane is required. 2.0 Property Owner's Responsibilities regarding Future Triggers. Property Owner is solely responsible for the cost and construction of required improvements. These responsibilities may include but are not limited to the following, as applicable: design, surveys, utility locates, acquisition of ROW, dedication of ROW, ROW and Access Permits and fees, coordination with oil and gas operators and facilities and affected irrigation facilities and utilities, traffic control, and project safety during construction. Property Owner shall obey all applicable regulations issued by OSHA, CDOT, CDPHE, and other federal, State, or County regulatory agencies. 3.0 Cost of Construction Exhibit. When any trigger is met, the Property Owner shall submit Exhibit A within six (6) months of being notified regarding the need for the triggered improvements, indicating the cost of construction estimates (engineer's estimate) to detail the costs used in determining the collateral requirement for the development. Construction costs must be obtained through a registered Colorado Engineer. A registered Colorado Engineer must sign and stamp the construction cost exhibit for sites that Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 - IA24-0006 Page 2 of 12 have project collateral. New or additional collateral may be required for the triggered improvements. If required, collateral shall be submitted at the same time as Exhibit A. Exhibit A shall be attached to this Agreement and incorporated herein once approved by the County. 4.0 Construction Schedule Exhibit. When any trigger is met, the Property Owner shall submit Exhibit B within six (6) months of being notified regarding the need for the triggered improvements, indicating the construction schedule, and including completion date for the improvements. Property owner shall not commence construction of improvements prior to approval of the Construction Plans and receipt of the appropriate Grading Permit, Access Permit, and/or ROW Permit. Property Owner shall complete all improvements in accordance with the construction schedule exhibit. The construction of the triggered improvements shall be completed within the specified timeframe, which may not exceed three (3) years from the date the trigger is first met and shall be completed as follows: Year 1 design deadline; Year 2 ROW/Utilities; Year 3 Construction. Property Owner shall collateralize 100% of the cost of the construction improvements, including design, right-of-way, and utility relocation cost within six months of being notified of meeting the triggers. Exhibit B shall be attached to this Agreement and incorporated herein once approved by the County. 5.0 Collateral. Collateral for any additional improvements required by the triggers maybe required by the Board of County Commissioners, hereinafter referred to as the BOCC. Collateral is accepted and released by the BOCC pursuant to the Weld County Code. Additional information about collateral is outlined in Part II.B of this Agreement. 6.0 As -Built Plans. "As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or once the Property Owner has completed improvements as described in Part II.B, Subsection 3.2.3, of this Agreement. Property Owner shall also provide an electronic copy of the as -built drawings. The as -built drawings shall be stamped, signed, and dated by a licensed and registered Professional Land Surveyor or Professional Engineer. C. Haul Routes: The Property Owner shall be fmancially responsible for its proportional share of the associated costs for maintaining and/or improving designated haul/travel routes. 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property: 1) East and west on County Road 50 between County Road 49 and approved site access 2.0 Haul trucks shall enter and exit the site at the approved access(es) on County Road 50 and remain on paved roadways for further dispersal. Any County Roads used by USR23-0042 traffic may become part of the established haul/travel routes. 3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle and axle configurations, unless overweight permits have been applied for and granted. 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the above - mentioned haul/travel route for a limited period (six months or less), the Weld County Department of Planning Services may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved County roads whenever possible. A deviation from the established haul/travel route lasting more than six (6) months, or requests for one (1) or more deviations within a twelve (12) -month period shall authorize the County to change the haul/travel routes designated herein, and provide notice to the Property Owner. Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 — IA24-0006 Page 3 of 12 5.0 Haul Route Signage. Property Owner shall install travel route signs, if applicable, as per Manual of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility and which clearly depict County approved travel routes. 6.0 No Deviation from Permitted Haul Routes. Except as authorized by the BOCC pursuant to this Agreement, no use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. D. Maintenance Requirements: 1.0 Off -site recurring maintenance, if applicable, as required by the Board: 2.0 Repair. Property Owner shall be financially responsible for its proportional share of excavation, patching, and pavement repair on designated haul/travel routes. The amount and extent of repair and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. 3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel 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 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). 4.0 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/travel route road portion will require paving measures in order to protect the public health, safety, and welfare, and the County has budgeted sufficient funds for the following calendar year to pay its share of the Off -Site Improvement/Repair Costs, County shall notify Property Owner in writing that the Off -Site Improvements/Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of the need to undertake the road maintenance repairs and/or improvements, Property Owner shall submit Off -Site Construction Plans and Cost Estimates to County for review. Property Owner shall have sole responsibility for the completion of the repairs and/or improvements on or before December 15, of the year following County's notice of the need for repairs. 5.1 In County's sole discretion, County may undertake the repairs and/or improvements. Property Owner's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in this Agreement. Property Owner will be invoiced accordingly for those proportional share costs. 5.0 Calculation of Property Owner's Proportional Share of Costs. The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportional share of costs of maintenance, repair, or improvements to Property Owner's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide Property Owner with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Owner's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of Property Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 — IA24-0006 Page 4 of 12 Owner's proportional share of costs. Property Owner agrees to pay such proportional share of costs within 30 days of receiving an invoice from County. 6.0 Annual Road Inspection. County may conduct a road inspection annually with the cooperation of Property Owner and all other Property Owners and/or Lessees who are required by County to participate in road improvement/maintenance agreements for the haul routes designated in this Agreement. As a result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall further determine what road repair/improvement/maintenance work is to be performed during that construction season. Notification to the Property Owner of the required roadway repairs will be given as soon as the data becomes available. 7.0 Notification. The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportionate share of costs of maintenance, repair, or improvements to Property Owner's designated haul/travel routes. Prior to County's final determination and assessment, County shall provide Property Owner with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Owner's input prior to making a final determination and assessment. PART II: GENERAL PROVISIONS A. Engineering and Construction Requirements: 1.0 Engineering Services. Property Owner shall furnish to County, at its own expense, all engineering services in connection with the design and construction of the off -site improvements and all on -site drainage -related structures if required by any Municipal Separate Storm Sewer System (MS4) permit, as identified on the accepted Construction Plans and according to the construction schedule set forth in the construction schedule exhibits. 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. 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. 2.0 Rights -of -Way and Easements. Before commencing the construction of any off -site improvements herein agreed upon for public ROW or easements, Property Owner shall acquire, at its sole expense, good and sufficient ROW and easements made necessary for the improvements. The County will not exercise eminent domain on behalf of Property Owner. All such ROW and easements for the construction of roads to be accepted by the County shall be conveyed to the County on County -approved forms and the documents of conveyance shall be furnished to the County for acceptance with express written authority of the BOCC and recording. 3.0 Construction. Property Owner shall furnish and install, at its own expense, the improvements (and any drainage -related structures required by any MS4 permit) identified on the accepted Exhibits and shall be solely responsible for the costs listed on the cost of construction exhibits, with the improvements being completed also in accordance with the schedule set forth in the construction schedule exhibits. The BOCC, at its option, may grant an extension of the time of completion set forth in construction schedule exhibits stated herein upon application by the Property Owner. Said construction shall be in strict conformance to the plans and drawings accepted by the County and the specifications adopted by the County. 4.0 Testing. 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 Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 - IA24-0006 Page 5 of 12 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. At all times during said construction, the County shall have the right to test and inspect material and work, 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. 5.0 Construction Standards. Design and construction of all off -site improvements shall conform to the current version of CDOT's "Standard Specifications for Road and Bridge Construction" and the Weld County Engineering and Construction Criteria. 6.0 Traffic Control. Prior to any construction in County and/or State ROW, and as a condition of issuance of any ROW or Access Permit, the Property Owner shall submit a traffic control plan for County review. During construction, appropriate safety signage shall be posted in accordance with the then -current version of the Manual of Uniform Traffic Control Devices. B. Collateral: 1.0 General Requirements for Collateral. Property Owner shall provide to County the necessary collateral to guarantee all of Property Owner's obligations under this Agreement: (1) Project Collateral is required for completion of off -site improvements, as described in this Agreement; (2) Warranty Collateral is required for all off -site improvements during the two-year warranty period. Collateral acceptance and release is governed by the Weld County Code. 1.1 Project Collateral shall be submitted to guarantee completion of off -site improvements identified in the Exhibits. Project Collateral must be submitted in an amount equal to 125% of the value of the improvements, as calculated in the cost of construction exhibits. Project Collateral must be submitted at the time of execution of the Agreement, unless otherwise directed by the Board of County Commissioners. In the event that Property Owner fails to adequately complete the required improvements, County may, in its sole discretion, access Project Collateral for the purpose of completing such improvements. It may be necessary to provide additional collateral in the event the cost estimate is older than three (3) years. NO WORK SHALL COMMENCE UNTIL PROJECT COLLATERAL HAS BEEN SUBMITTED AND ACCEPTED BY THE COUNTY. 1.2 Warranty Collateral shall be submitted and held by the County until release after the two- year warranty period following the County's initial approval of the improvements. Warranty Collateral shall be in an amount equal to 15% of Project Collateral. In the event that Property Owner fails to adequately complete or repair improvements during the warranty period, County may, in its sole discretion, access Warranty Collateral for the purpose of completing such improvements. 2.0 Form of Collateral. Collateral may be in the form of a letter of credit, a surety bond, or a cash deposit, subject to the requirements and restrictions of Section 8-2-40 of the Weld County Code, as that section may be amended from time to time. 3.0 Release of Collateral. Collateral shall be released in accordance with Section 8-2-30 of the Weld County Code. For collateral release, County personal conducts inspections for on -site and off -site improvements. 3.1 Timing of Release. Project Collateral may be released upon completion of all improvements required by the Exhibits after initial approval by the County, which shall not be Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 — IA24-0006 Page 6 of 12 unreasonably withheld, conditioned, or delayed.. Warranty Collateral shall be withheld by County at the time of release of Project Collateral or may be submitted separately by Property Owner. Warranty Collateral may be released upon the approval of the County at the end of the two-year warranty period. 3.2 Request for Release of Collateral. Prior to release of collateral by Weld County for the entire project or for a portion of the project, 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: 3.2.1 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. 3.2.2 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. 3.2.3 "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 Exhibit C and/or Exhibit D, 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 a Development Review Engineer. 3.3 County's Response to Request for Release of Collateral. Following a written request for release of collateral, County personnel will inspect the improvements as provided in this Agreement. Upon approval, the Board of County Commissioners may release said collateral. C. Acceptance of Improvements: 1.0 Acceptance of Off -Site Improvements: Upon completion of the off -site improvements, Property Owner shall contact the Weld County Development Review and request an inspection of such ii improvements. Upon request, County personnel will initiate the inspection, approval, and acceptance 2 process. —. 2.0 Inspection, Approval, and Acceptance Process: ae 2.1 Upon completion of construction of all off -site improvements as described in the 4 Construction Plans, Property Owner shall submit to the Weld County Department of Planning maw Services a Statement of Substantial Compliance by Property Owner's Engineer along with "as- ..?,,,:= '1 built" drawings as required in subsection B.3.2.3, above, and shall request County inspection of the Off -Site Improvements. County personnel shall then inspect the improvements. If the County c ::sir determines the improvements were not constructed in accordance with the Construction Plans, the N oe E .. County shall direct the Property Owner to correct the deficiencies. If the County determines the E improvements were constructed in accordance with the Construction Plans, the County shall A L initially approve the Off -Site Improvements. ifs- NU.... N m % Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC - USR23-0042 - IA24-0006 ^NY` Page 7 of 12 m., ImNI� 2.2 Two -Year Warranty Period. Such initial approval begins the two-year warranty period. Upon completion of the two-year warranty period, County Public personnel 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. County personnel shall re -inspect the improvements after notification from the Property Owner that said deficiencies have been corrected. If the County personnel finds that the improvements are constructed according to County standards, he or she shall approve the improvements. Such final approval shall authorize the Property Owner to request the Board of County Commissioners to release the Warranty Collateral. 2.3 Placement of Improvements into Service Prior to County Approval. If requested by the Property Owner and agreed by the County, portions of the improvements may be placed in service when completed according to the schedule shown on the construction schedule exhibit, but such use and operation shall not alone constitute an approval or acceptance of said portions of the improvements. 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 the construction schedule exhibit, and may continue to issue building permits so long as the progress of work on the improvements is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Property Owner. D. Permits: Property Owner is required to apply for and receive all permits required by the County or any other applicable local, State, or federal permit, including but not limited to: 1.0 Access Permits. Property Owner shall not use any access onto any County road unless and until an access permit has been issued by the Department of Planning Services. Planning Services may condition the issuance of an updated access permit on the amendment of this Agreement if the updated access permit authorizes the use of an additional access point, or if there is a change in use of the current access point, as permitted by Article XIV of Chapter 8 of the Weld County Code. 2.0 Right -of -Way (ROW) Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work occurring within County ROW requires a ROW permit issued by the Department of Public Works. No work shall occur without said ROW permit. 3.0 Transport Permits. Per Article XV of Chapter 8 of the Weld County Code, a Weld County Transport Permit is required for Extra -legal vehicles using Weld County roadways to ensure the operation and movement of Extra -legal Vehicles and Loads occurs in a safe and efficient manner. E. Enforcement and Remedies: 1.0 Violation of Terms of Agreement. If in County's reasonable opinion, Property Owner has violated any of the terms of this Agreement, County shall 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 the violation is continuing, County may consider Property Owner to be in breach of this Agreement. 2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Owner has violated the terms of this Agreement, and has failed In correct said violation, County may exercise any or all of the following remedies, or any other remedy available in law or equity. Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 - IA24-0006 Page 8 of 12 2.1 Access and Use of Collateral. County may access and use collateral to address the issues specific to the violation. For example, the County may access and use Project Collateral in order to complete improvements as required by the Construction Plans, when such improvements have not been completed in accordance with the Construction Schedule. 2.2. Withholding Permits. County may "lock" any or all lots within the Property, which precludes the continued issuance of building permits, zoning permits, septic permits, or any other permit issued by any department of the County. 2.3 Court Action. County may seek relief in law or equity by filing an action in the Weld District Court or Federal District Court for the District of Colorado, except that no such civil action or order shall be necessary to access collateral for the purpose of completing improvements as described above. 2.4 Revocation of USR Permit. Property Owner acknowledges that failure to comply with the terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option in its sole discretion by proceeding with revocation under the then current provisions of the Weld County Code. 3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following events: 3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of the underlying land use approval under Weld County Code Section 23-2-290. However, County may still exercise all necessary activities under this Agreement that the County determines necessary to protect the health, safety, and welfare of the residents of Weld County. 3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Property Owner's complete cessation of all activities permitted by the USR including any clean up or restoration required. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release/vacation constitute a Termination. Unless informed in writing by the Property Owner of cessation of activities, and verified by the County, cessation shall only be presumed if the County determines that the USR has been inactive for three (3) years. Property Owner shall not be entitled to a release of Project or Warranty Collateral unless and until the improvements required by this Agreement are completed. 3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's execution of a new Improvements Agreement with a new property owner or operator who has purchased the Property or has assumed the operation of the business permitted by the USR, and intends to make use of the rights and privileges available to it through the then existing USR. 3.4 Revocation of USR. This Agreement shall terminate following County's revocation of Property Owner's USR, except that the Property Owner shall only be released from this Agreement after the successful completion of all improvements required under this Agreement, which may be completed by County after accessing Property Owner's collateral if Property Owner fails to complete such improvements. F. General Provisions: 1.0 Successors and Assigns. Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 - IA24-0006 Page 9of12 1.1 Property Owner may not delegate, transfer, or assign this Agreement in whole or in part, without the prior express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. Consent to a delegation or an assignment will not be unreasonably withheld by County. In such case, 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. 1.2 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 all roads affected by this Agreement. 2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 4.0 Amendment or Modification. Any amendments or modifications to this agreement shall be in writing and signed by both parties. 5.0 No Third -Party Beneficiary. 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. 6.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 7.0 Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. In the event of a legal dispute between the parties, the parties agree that the Weld County District Court or Federal District Court for the District of Colorado shall have exclusive jurisdiction to resolve said dispute. 8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Owner, concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney fees and/or legal costs incurred by or on its own behalf. 9.0 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 the design and construction of improvements, and pay any and all judgments rendered against the County on account of any such suit, action or claim, and notwithstanding section 7.0 above, 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 Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 - IA24-0006 Page 10 of 12 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. 10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra- judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 11.0 Authority to Sign. Each person signing this Agreement 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. 12.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement, understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with the attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. 13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential conflict between any term in this Agreement and the Resolution of the Board of County Commissioners approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the event of a discrepancy between this agreement and the Weld County Code in effect at the time of the agreement, the terms of the Weld County Code shall control. 5000717 Pages: 11 of 12 12/18/2024 12:06 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County , CO IIII kirdKrAtlii'lqifiliiInkllilaNIWWIliiii It II Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 - IA24-0006 Page 11of12 PROPERTY OWNER: Liberty Power Innovations LLC By: e,46 Name: Richard Bradsby Title: President STATE OF CelAro f County of t�XI�ICX' Date // // 5 T SS. ��µµjJcv^o_'y t c The foregoing instrument was acknowledged before me this IT',, day of �G'f' by Ritektera TNFSS rrky Jsand.artd official See. AMANDA GAGE Notary Public State of Colorado Notary ID M 20184016816 M Commission Expires 04-17-2026 ota • Public WELD COUNTY: ATTEST: firs) . 444, Weld County C erk to the Board BY: i %/,1M 5000717 Pages: 12 of 12 12/18/2024 12:06 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County , CO VIII I10.!I•liPtiAlln IhRikriPtillIfililik BOARD OF COUNTY COMMISSIONERS WELD CO D. Ross, Chair DEC 1 1 2024 Michael Boulter Farms, LLC c/o Liberty Power Innovations LLC — USR23-0042 — IA24-0006 Page 12 of 12 z.azt4 -3fl d Deputy Clerk to the Bo Contract Form Entity Information Entity Name" Entity ID* LIBERTY POWER INNOVATIONS LLC @00049298 Contract Name * IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT MICHAEL BOULTER FARMS LLC C/O LIBERTY POWER INNOVATIONS LLC USR23-0042 Contract Status CTB REVIEW Q New Entity? Contract ID 8896 Contract Lead * JTRUJILLOMARTINEZ LLOMARTI N EZ Contract Lead Email jtrujillomartinez@weld.go Parent Contract ID Requires Board Approval YES Department Project # Contract Description * IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT MICHAEL BOULTER FARMS LLC C/O LIBERTY POWER INNOVATIONS LLC USR23-0042 NO COLLATERAL REQUIRED Contract Description 2 Contract Type" Department AGREEMENT PLANNING Amount* $0.00 Renewable* NO Automatic Renewal Grant IGA Department Email CM-Planning@weld.gov Department Head Email CM-Planning- DeptHead@weld.gov County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COUNTYATTORNEY@WEL D.GOV If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Requested BOCC Agenda Due Date Date* 11/30/2024 12/04/2024 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? NO Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnBase Contract Dates Effective Date Termination Notice Period Contact Information Contact Info Review Date * 12/04/2025 Committed Delivery Date Renewal Date Expiration Date* 12/04/2026 Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2 Purchasing Purchasing Approver Purchasing Approved Date Approval Process Department Head ELIZABETH RELFORD DH Approved Date 11/22/2024 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date Finance Approver CHERYL PATTELLI Legal Counsel BYRON HOWELL Finance Approved Date Legal Counsel Approved Date 11/22/2024 11/22/2024 Tyler Ref # 12/11/24 Originator JTRUJILLOMARTINEZ Hello