HomeMy WebLinkAbout20241129.tiffMEMORANDUM
TO: Board of County Commissioners
DATE: January 31, 2024
FROM: Kim Ogle, Planning Services
SUBJECT: USR23-0023 CBEP Solar 27, LLC
On October 4, 2023, the Board held a hearing on the request of CBEP Solar 27 LLC for a Site
Specific Development Plan and Use by Special Review Permit for a Solar Energy Facility (SEF)
outside of subdivisions and historic townsites in the A (Agricultural) Zone District. The Board took
testimony and statements of those present and reviewed the request of the Thomas and Marjorie
Brown.
Based on discussion at the October 4, 2023 hearing the Board continued this case until December
6, 2023 to allow the applicants adequate time to get a Good Neighbor Agreement and a Crossing
Agreement in place
Cloudbreak Energy made a second request to continue the case to January 17, 2024, to allow the
applicants adequate time to get a Good Neighbor Agreement and a Crossing Agreement in place.
Planning Services received an electronic mail on January 16, 2024 providing notice of a letter dated
January 16, 2024 from Dietze and Davis, P.C. recently retained legal counsel for the Union Ditch
Company requesting additional time to negotiate a final crossing agreement.
Cloudbreak Energy made a third request to continue the case to January 31, 2024, to allow the
applicants adequate time to get a Crossing Agreement in place based on the letter of January 16,
2024 from counsel for the Union Ditch.
A final Crossing Agreement dated January 29, 2024 and signed by Kevin Walker, President of the
Union Colony Ditch and Zachary Brammer, Authorized Signatory for Cloudbreak Energy is
attached. The agreement had not been recorded as of mid -morning January 30, 2024.
This agreement addresses Condition of Approval 1.B, and this condition may be removed from the
Commissioners Resolution.
The Good Neighbor Agreement dated December 7, 2023 and signed by Gary and Susan Alles
adjacent property owners to the north and Zachary Brammer, Authorized Signatory for Cloudbreak
Energy is attached. The agreement had not been recorded as of mid -morning January 30, 2024
This agreement addresses Condition of Approval 1.E and Condition of Approval 1.G and these
conditions may be removed from the Commissioners Resolution.
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2024-1129
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4943067 02/06/2024 11:22 AM
Total Pages: 7 Rec Fee: $43.00
Carly Koppes - Clerk and Recorder, Weld County , CO
CROSSING AGREEMENT AND EASEMENT
THIS AGREEMENT is entered into this - ', '--day of January, 2024, between Union Ditch
Company (the "Ditch Company") and CBEP Solar 27, LLC (the "Applicant") (collectively, the
"Parties").
RECITALS
A. The Ditch Company is the owner of an irrigation ditch known as the Union Ditch,
being a part of its irrigation system (the "Ditch"), and the easement for said Ditch.
B. Applicant has entered into a lease agreement with Thomas D. Brown and Marjorie
A. Brown ("Owners") dated September 3, 2021 ("Lease") to develop a solar -powered electrical
power generation and transmission project to be located in Weld County, Colorado ("Project") on
a portion of Owners' property and in accordance with and as described in Exhibit A attached
hereto and incorporated herein by this reference.
C. As part of the Project, the Applicant desires to install one access road that will span
over the Ditch through the Ditch Company's easement in accordance with Exhibit A and pursuant
to the terms of this Agreement. The portion of the road that crosses the Ditch will be constructed
using a cement culvert covered by gravel and is referred to herein as "Crossing Road." The
Crossing Road will be located approximately 720 feet north of County Road 54 off of County
Road 47 as shown on Exhibit A.
D. Applicant also desires to install, maintain, and replace electric and
telecommunication utilities lines and related appurtenances over the Ditch in connection with the
Project, as generally shown on Exhibit A ("Lines").
E. Exhibit A and the terms of this Agreement set forth the plans and specifications of
the Project, including the Crossing Road and the Lines. The Crossing Road shall not be modified
by any subsequent plan, specification, or material not included therein, unless it is signed by both
parties. The specification of the Crossing Road that will span over the Ditch must be verified by
the Ditch Company ("Specifications"). There shall only be one Crossing Road installed by
Applicant in the place designated by Exhibit A unless a subsequent agreement is entered into
between the Parties.
F. The Ditch Company is willing to grant Applicant an easement for purposes of
crossing the Ditch to facilitate completion of the Project pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in
this Agreement, and for valuable consideration, the adequacy of which is hereby acknowledged,
the Parties mutually agree as follows:
1. The above Recitals are accurate and are incorporated herein by reference.
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Page 2 of 7
2. The Ditch Company grants to the Applicant the right (i) to install and maintain the
Crossing Road pursuant to the Specifications, (ii) to install, maintain, and replace (as needed) the
Lines, and (iii) of ingress and egress as reasonable and necessary for the exercise of Applicant's
right granted herein. With this grant, the Ditch Company grants Applicant an easement for the
installation, maintenance, and use of the Crossing Road and Lines.
The scope of this Agreement and the extent of the easement granted hereby are limited to
the extent reasonably necessary to complete, maintain, and utilize the Crossing Road and Lines.
3. The Applicant agrees to pay to the Ditch Company a crossing fee in the amount
mutually agreed upon by the parties ("Crossing Fee") at least thirty days prior to commencing any
construction in the Ditch Company's easement.
4. The Crossing Road shall be constructed in strict accordance with the Specifications
and the Lines in accordance with the plans set forth in Exhibit A. All Crossing Road and Lines
work shall be done under the supervision of the Superintendent or other designated agent of the
Ditch Company. No work shall be undertaken to commence the Crossing Road until the Ditch
Company Superintendent has been notified and it does not interfere with Ditch operations and the
Ditch Company has received the Crossing Fee.
5. The Applicant acknowledges and agrees that the plans set forth on Exhibit A require
that: (a) any fence line established is at least 25 feet away from the nearest edge of the Ditch and
(b) the Crossing Road includes at least a 5 ft wide cement oval culvert with a "mouth" that gets
wider on each end, the intent of which is to prevent debris blockage and erosion. No riprap is to
be placed on either end of the culvert or "mouth."
6. In connection with the construction of the Project, the Applicant shall be
responsible for removing the existing cattle guard and crossing at the NE corner of the Project, at
their own expense and to restore the area to the same condition as the surrounding area. The
existing drain next to the cattle guard is to remain in place and not enlarged.
7. The Crossing Road will be completed by March 15, 2025. This completion date of
the Crossing Road is mandatory. Any construction activity on the Crossing Road and the Lines
shall be completed between November 1 and March 15, and no other time. Applicant shall provide
Ditch Company with thirty days' notice prior to commencing any construction and shall exercise
commercially reasonable efforts thereafter to inform the Ditch Company of construction progress
on the Project, including the Crossing Road and Lines. The construction of the Project by the
Applicant shall in no way interrupt, impede, or interfere with the flow of irrigation water in the
Ditch, nor shall any part of the Project adversely affect the quality of the water in the Ditch. All
construction shall be undertaken with due care to ensure that no contamination of the water in the
Ditch occurs and that the flow of water in the Ditch is in no way impeded.
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8. Upon completion of each of the Crossing Road and the Lines, the Applicant shall
notify the Ditch Company, and the Parties shall jointly inspect the Ditch at the points of
construction. If there are any deficiencies in the work of the Applicant or variations from the plans
set forth in Exhibit A, the Applicant shall promptly remedy the same and shall meet all reasonable
requirements of the Ditch Company in doing so. After construction, Applicant shall also provide
reasonable notice to the Ditch Company prior to the Applicant conducting any additional work on
the Crossing Road or Lines.
9. The Applicant agrees to exercise due care in the completion of the Project,
including the Crossing Road and the Lines, including obtaining all local, state, and federal permits
or approvals, and for compliance with all applicable laws and regulations. It is agreed that the
Ditch Company is in no way responsible for any damages caused to any person or property by the
Applicant in connection with the Project, including the Crossing Road and the Lines. The
Applicant hereby agrees to indemnify and to hold the Ditch Company harmless from any and all
causes of actions, claims, demands, liability, and damages caused to any person or property in
connection with, or arising out of, the Project, in any way, whether it be related to the construction,
maintenance, or ongoing use of the Project, including the Crossing Road and the Lines, except as
set forth in Paragraph 12 below, and except to the extent any such causes of actions, claims,
demands, liability, and damages are caused by the negligence or willful misconduct of the Ditch
Company, its employees, or contractors.
10. The Applicant shall conduct any maintenance required in connection with the
Project, including the Crossing Road and the Lines, at its sole expense, and so as not to interfere
with the customary carriage of irrigation water in the Ditch or to interfere in any way with the
maintenance and operation of the Ditch by the Ditch Company.
11. During the term of this agreement, the Ditch Company shall have the right to use
the Applicant's Crossing Road for maintaining the area around the Ditch to the extent consistent
with the Ditch Company's easement. In addition, the Ditch Company's grant to Applicant herein
in no way restricts the Ditch Company's use of its easement for the Ditch to install, operate, or
maintain all existing structures and facilities of the Ditch.
12. At least ninety (90) days prior to the end of Applicant's Lease with Owners, the
Applicant shall notify the Ditch Company of the date Applicant is obligated to remove
improvements and restore Owners' property pursuant to the Lease ("Restoration Date"). At least
thirty (30) days prior to the Restoration Date, or if the Applicant has not used the Crossing Road
for a period of five (5) consecutive years and thus is presumed to have abandoned the Project, the
Ditch Company may exercise an exclusive option to obtain title to the Crossing Road from
Applicant. Such an option supersedes any right of the Owners under the Lease to demand removal
of, or themselves obtain title to, the Crossing Road. The Parties agree that Applicant's conveyance
of title to the Crossing Road shall be made without representation or warranty, and that, upon
conveyance, the Ditch Company shall become responsible for maintenance of the Crossing Road.
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In the event the Ditch Company does not timely exercise its option regarding the Crossing Road,
Applicant shall remove, or convey to Owners, the Crossing Road pursuant to the Lease.
13. In the event of default hereunder, the non -defaulting party shall be awarded all
expenses of enforcement, including all costs and reasonable attorney's fees.
14. This contains the entire agreement of the Parties. All prior discussions,
negotiations, or agreements are deemed merged herein. This Agreement may only be modified by
a further written Agreement signed by the Parties.
15. The rights and duties hereunder shall inure to the benefit of and bind the successors
and assigns of the Parties, and all covenants contained herein shall be deemed to run with the land
in accordance with the terms of this Agreement.
16. The terms and provisions of this Agreement shall be interpreted in accordance with
the laws of the State of Colorado.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date above
written.
DITCH COMPANY:
UNION DITCH COMPANY
P. O. Box 445
Greeley, Colorado 80632
By: P -.C'`7-, i l C't"
K vin
Walker, President
STATE OF COLORADO
) ss.
COUNTY OF WELD
SUBSCRIBED and SWORN to before me this '2. day of January, 2024, by
Kevin Walker, as President of Union Ditch Company.
WITNESS my hand and official seal.
My commission expires:
DONNA L COBLE
[Seal] NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 19874036894
MY COMMISSION EXPIRES JUNE 07, 2027
Notary Public
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4943067 02/06/2024 11:22 AM
Page 6 of 7
APPLICANT:
CBEP Solar 27, LLC
Address: 4845 Pearl E. Circle
Suite 118, #53242
Boulder, CO 80301
Attn: Zachary Brammer and Bobby Dishell
Email: zach@cloudbrerakenergy.com: bobbyna cloudbreakenergy rem;
legal@cloudbreakenergy.com
By:
Title: AILTI'kittl Sijnot)ty
STATE OF COLORADO )
COUNTY OF 601./.10Er )
SUBSCRIBED and SWORN to before me this �- 1 day of January, 2024, by
'Wet 6w'ATnrr(i , as - Aliheri 5300v of CBEP Solar 27,
LLC.
[Seal]
WITNESS my hand and official seal..
My commission expires: //20/(26
Notary Notary Public
gmumnannimanxlulannnnmlatoom minmumin.
CHRISTOPHER MIMYEGEN .
NOTARY PUOUC • STATE OF COLORADO
NOTARY ID 20224047579
MY COMMISSION EXPIRES DEC 20, 2026
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SOLAR FARM GOOD NEIGHBOR AGREEMENT
THIS GOOD NEIGHBOR AGREEMENT ("Agreement") is entered into as of December 2/7/2023
2023 ("Effective Date") by and between Gary and Susan Alles ("Alles"), and CBEP Solar 27, LLC, a
Delaware limited liability company having an address of 4845 Pearl East Circle, Suite 118 #53242, Boulder,
CO 80301 and any successors and assigns, ("Operator").
RECITALS
A. WHEREAS, Operator has entered into that certain lease agreement with Thomas D. Brown and
Marjorie A. Brown ("Browns") dated as of September 3, 2021 ("Lease") whereby Brown has
leased certain real property located in part of the SE/4SE/4 of Section 23 in Township 5 North,
Range 65 West ("Brown Property") to Operator for purposes of operating a Solar Farm project on
such property. ("Solar Farm").
B. WHEREAS, Operator intends to install certain improvements on the Brown Property, including
but not limited to: solar panels, solar modules, steel posts, inverters, beams, electrical equipment,
transformers, battery facilities and equipment, collection facilities and equipment, access road,
utility poles, temporary construction trailer, foundations and support structures, and
interconnection, substation, and telecommunication equipment (collectively, "Solar Facilities").
C. WHEREAS, the Alles own the property located in the N/2 of SE/4, Section 23 in Township 5
North, Range 65 West, situated directly north of the Brown property ("Alles Property") and have
expressed concerns associated with nuisance and other impacts the Solar Farm may have on the
Alles Property given the proximity to the Solar Farm and Solar Facilities.
D. WHEREAS, the parties desire to work cooperatively through adherence to the terms and conditions
of this Agreement to address concerns and to promote positive neighbor relations, mutual respect,
and protection of interests
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be
and hereby being legally bound, agree as follows:
AGREEMENT
1. Setback. The setback for all Solar Facilities shall be a minimum of four hundred (400) feet from
the Alles residence located on the Alles Property and shall be a minimum of two hundred forty-two
feet from the entire southern Alles Property property line ("Setback"). The Setback is detailed in
Exhibit A, attached hereto and incorporated herein.
2. Screening; landscaping. Prior to construction of the Solar Farm, Operator shall install a wooden
fence along the entire northern boundary of the Solar Farm. Operator shall install such fence with
a minimum height of eight (8) feet, however, Operator shall take commercially reasonable steps to
install such fencing that is as high as possible, up to twelve (12) feet high. Operator shall install
two (2) rows of Rocky Mountain Juniper trees along the entire northern boundary of the Solar Farm
outside of the fencing, which shall be no less than five (5) feet in height. Operator shall exercise
commercially reasonable efforts to obtain taller Rocky Mountain Juniper trees if the same are
available and have a reasonably similar chance of long-term growth success. Operator shall seek
input from the Alles regarding such trees and the placement thereof in good faith. If a tree dies or
otherwise fails to meet the vegetative screening requirements associated with Weld County's
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approval requirements for the Solar Facility (as determined by Weld County), Operator shall
exercise commercially reasonable efforts to replace the tree(s) as soon as practical.
3. Maintenance. Operator shall maintain the Facilities in accordance with solar industry standards.
Operator shall reasonably maintain all landscaping and screening on the Brown Property. All
maintenance activities of Operator and its agents shall occur between 7:00 a.m. and 6:00 p.m.
Operator shall regularly maintain the Brown Property utilizing mowers and keep the vegetation at
a height of no more than 19 inches, including the portion of the Brown Property within the Setback.
In no event shall Operator utilize sheep or other animals on the Brown Property for weed
management or other purposes.
4. Access. Operator shall not, under any circumstances, use the existing access road on the Brown
Property that is directly adjacent to the Alles Property, or use the Union Ditch crossing at that point.
5. Communication. Operator shall provide a single point of contact to the Alles as well as a back-up
point of contact, who make commercially reasonably efforts to timely respond to any inquiries,
concerns and questions from the Alles regarding the Solar Farm. Operator may change the points
of contact by providing the Alles written notice at least two (2) business days' in advance of such
change. Operator shall provide the Alles at least two (2) business days' notice for work or people
on the Brown Property prior to the start date of construction of the Solar Farm. Once construction
begins, Operator shall provide the Alles a general construction schedule for the phases and expected
completion of construction of the Solar Farm. Operator shall make commercially reasonable efforts
to mitigate construction noise and dust impacting the Alles Property.
6. Term. This Agreement shall begin as of the Effective Date and shall continue in full force and
effect for so long as Operator or its successors or assigns operate a Solar Farm on the Brown
Property ("Term").
7. Permitting of Solar Farm. Provided Operator is in compliance with the terms and conditions herein,
the Alles agree they will not challenge or in any way oppose Operator's applications for permits,
licenses, and government approvals necessary for operation of the Solar Farm with Weld County
or any other agency having jurisdiction over the Solar Farm. The Alles agree they will support a
reasonable crossing agreement with the Union Ditch Co., to the extent such crossing is necessary
for the Solar Farm and provided such crossing is not located along or within the Setback. Under no
circumstances shall Operator place the Union Ditch crossing within the Setback.
8. Representations and Warranties. Operator makes the following representations and warranties:
(i)
Additional drainage infrastructure, beyond what was included on the drainage plan
submitted to Weld County through Weld County use by special review application
USR23-0023 ("Drainage Plans"), such as swales and level spreader, are
unnecessary according to third party analysis, and such Drainage Plans are
sufficient to adequately address all drainage concerns related to the installation of
the Solar Farm.
(ii) Operator has received all required permits and approvals of the Drainage Plan
submitted to Weld County for construction and operation of the Solar Farm, and
the Drainage Plans have been approved by Weld Count.
(iii) Operator shall construct and operate the Solar Farm in accordance with all
applicable laws, statues, codes, and regulations, and this Agreement.
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(iv) Operator has or will receive all necessary state and governmental approvals and
licenses for operation of the Solar Farm, including, but not limited to, the Colorado
Department of Public Health and Environment, prior to operation of the Solar
Farm.
9. Indemnification. Operator and its successors, assigns, agents, directors, and employees, shall
indemnify, defend, and hold harmless, the Alles and their successors and assigns for any damages,
suits, liabilities, causes of action, penalties, claims, and property damage, arising from or relating
to any drainage or flooding issues related to the construction and operation of the Solar Project.
10. Default. If any party (the "Defaulting Party") should fail to perform any of its obligations under
this Agreement within thirty (30) days' notice after the other party has given the Defaulting Party
written notice of such failure ("Notice Party"), then the Notice Party shall have the rights, at its
option, to exercise and enforce any remedy afforded to it by law or equity, including a suit for
specific performance or other equitable relief, or for damages resulting from such default. During
the thirty (30) days after notice has been received by the Defaulting Party, the parties shall work in
good faith to negotiate a resolution to the dispute.
11. Notices. All notices or other communications required or permitted by this Agreement shall be in
writing and shall be deemed given when personally delivered to, or in lieu of personal delivery,
five (5) days after deposit in the USPS first class postage prepaid, and addressed as follows:
If to Alles:
26285 County Road 47
Greeley, CO 80631
If to Operator:
4845 Pearl East circle, Suite 118 #53242
Boulder, CO 80301
Or such other address as the parties may designate in writing. Notice given by a party's attorney
or authorized agent shall be deemed notice given by such party.
12. Amendments. This is the entire Agreement of the parties with respect to the subject matter hereof
and supersedes all prior or contemporaneous agreements between the parties with respect thereto.
This Agreement shall not be modified or amended except in a writing signed by both parties. No
proposed modifications or amendments, including without limitation any oral agreement, or course
of conduct, shall be binding upon either party.
13. Non -Waiver. The failure of a party to enforce any terms of this Agreement shall not be construed
as a waiver of any such terms or relinquishment of any right of enforcement for the same.
14. Authority. Each party represents it has the unrestricted right and authority to execute this
Agreement.
15. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties'
respective successors and assigns. Should any provision of this Agreement be held, in a final
decision by a court of competent jurisdiction, to be invalid, void, or unenforceable, the remaining
provisions shall remain in full force and effect.
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16. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with
Colorado law, without regards to conflicts of law principles.
17. No Construction Against Drafter. Each party acknowledges that it has had the opportunity to
review this Agreement with legal counsel or tis choice, and there shall be no presumption that
ambiguities shall be construed or interpreted against the drafter.
18. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one original document.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be executed as of the
date first written above.
ALLES
LDo¢uSigned by:
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Gary Alles
DocuSigned by:
LiksztJA, thiLs
usan AItes
CBEP Solar 27, LLC
DonuSigned by:
ame: ach Brammer
Title: Authorized Signatory
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EXHIBIT A
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