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Home My WebLink About20240133.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement for: Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 DEPARTMENT: Planning Services DATE: December 12, 2023 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the problemlissue: The Department of Planning Services received a request from the applicant, Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC, requesting that the Board of County Commissioners consider approving the Road Maintenance During Construction Agreement for (USR23-0019). No collateral is required with this agreement. Weld County Planning Services, Public Works, and the County Attorney's Office have reviewed the above mentioned signed original document and observed the following: All Public Works related items, of the "Road Maintenance Agreement According To Policy', 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 Commissioners. 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: • Applicant will generate additional heavy traffic directly related with their development project for an extended period of time meaning the applicant will be responsible for their impacts on the County Roadways during this time, or the County will be required to cover the costs of the applicants impacts on the roadways during this extended time. Impacts: • Applicant will generate additional heavy traffic directly related with their development project for an extended period of time, potentially causing impacts to the County Road systems and causing wear and tear more quickly than normal traffic volumes over time. Costs (Current Fiscal Year / Ongoing or Subsequent Fiscal Years): • Applicant will pay their proportional share of repairs and upgrades completed by the County and pay for any damage caused by their direct traffic during their use of their construction haul route on the County Roadways. Recommendation: Option 1. The Departments of Planning Services, Public Works, and the County Attorney's Office are recommending approval of the Road Maintenance Agreement According To Policy for USR23-0019, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Su000rt Recommendation Schedule Place or CC Agenda Work Session Other/Comments, Perry L. Buck, Pro-Tem Mike Freeman, Chair Scott K. James Kevin D, Ross Lori Seine e,r-AAZ-e6 /,i1-at‘- e&p07,L.(siat,p,„/.1.,b17/2,,,(4.,pi)) ©3/i.s/a 2024-0133 /az_ .2 g.F Cheryl Hoffman From: Sent: To: Subject Approve Sent from my iPhone Mike Freeman Monday, December 18, 2023 11:45 AM Cheryl Hoffman Re: 9 Pass arounds for review > On Dec 18, 2023, at 1:57 PM, Cheryl Hoffman <choffman@weld.gov> wrote: > Hi Mike, > Please review these 9 pass arounds and let me know if you approve placement on the BOCC agenda. > Thank you! > Cheryl L. Hoffman > Deputy Clerk to the Board > 1150 O Street/P.O. Box 758 > Greeley, CO 80632 > Tel: (970) 400.4227 > choffman@weld.gov ROAD MAINTENANCE AGREEMENT ACCORDING TO REQUIREMENTS DURING THE CONSTRUCTION PERIOD Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 THIS AGREEMENT is made this 1.416 day of &newt. -, 2021, by and between Michael Boulter Farms, LLC, 22019 County Road 54, Greeley, Colorado 80631, c/o CBEP Solar 26, LLC, P.O. Box 1255, Sterling, Colorado 80751, 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 D of Recorded Exemption, RE -4420; being part of the SW1/4 of Section 14, Township 4 North, Range 65 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Owner has received the Board of County Commissioners conditional approval of USR23-0019, and WHEREAS, the Property Owner facility will generate additional vehicles and heavy traffic directly associated with USR23-0019, for an extended period of time; and WHEREAS, the County, and Property Owner are desirous of agreeing to terms involving regulation of haul routes, traffic control, and road wear arising from such additionaltraffic. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant, and agree as follows: ▪ Part I: SITE SPECIFIC PROVISIONS e° Nw A. Reserved W'ow B. Haul/Travel Routes: The Property Owner shall be financially responsible for its proportional share of the associated costs for maintaining and/or improving designated haul/travel routes. • 12 ▪ 3M 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property: To• �F+ ▪ 1) East and west along CR 44 between CR 45 and CR 49. ;E-- ▪ 2) North and south along CR 45 between CR 44 and approved site access. Qa 2.0 Haul trucks and traffic shall enter and exit the site at the approved access(es) on CR 45 and travel north -south to the nearest paved road for further dispersal. Any County roads used by traffic associated with USR23-0019 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. M Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 - RMCA23-0021 Page 1 of 7 ©a2 19/<.33 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the abovementioned haul/travel route for a limited period (six months or less), Weld County 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 12 -month period shall authorize the County to change the haul/travel routes designated herein and provide notice to the Property Owner. 5.0 Haul Route Signace. 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 Board 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. C. Maintenance Requirements: 1.0 Off -Site Dust Control/Abatement: The Property Owner is required to provide dust abatement along affected haul route roads, as determined by the County. County will determine the proportionate share of dust control to be paid by Property Owner. The amount and extent of dust control measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. The County reserves the right to install traffic counters on the driveway(s) of the Property Owner's facility. The County will have sole responsibility for determination of the percentage of haul route traffic on all affected roads. 2.0 Obligation to Maintain Current and Future Haul Routes: Property Owner will be fmancially responsible for the excavation, repair, and patching of any damage on current or future haul route roads, which in the sole opinion of County has been created by vehicle traffic to and from the Property. Should Property Owner's site activities or vehicle circulation patterns change in the future so that County approves an alternate haul route, and all or a significant portion of Property Owner's sourced traffic no longer utilizes the abovedescribed haul route and instead utilizes other portions of County roads, Property Owner shall cooperate with County in maintenance of said roads which are included within the new haul route. The type and method of repair will be determined by the County Engineer or his representative. Repairs shall commence within 48 hours of notification by the County for any roadway damage that exposes the driving public to adverse or unsafe driving conditions. All other repairs shall commence within thirty (30) days of receipt of Weld County's written notice. 2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project traffic that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify Property Owner of such Significant Damage. Property Owner shall identify the repair required and shall consult with County on the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent) within twenty-four (24) hours after receipt of such notice and shall commence such repair within fortyeight (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). 2.2 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 described in this Agreement. 3.0 Proportionate Share of Road Maintenance Responsibilities: Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 - RMCA23-0021 Page 2 of 7 3.1 Property Owner shall pay its Proportionate Share of costs of dust control/abatement, paving, repairs, or maintenance of any particular Haul Route Road. Property Owner's Proportionate Share shall be based upon the percentage of traffic on the road that is attributable to Property Owner's facility. County personnel will determine the percentage based on then current Equivalent Single Axle Load (ESAL) Counts. Property Owner shall not be responsible for traffic that is not sourced from the Property Owner's facility. 3.2 The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportionate share of costs. 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 fmal determination and assessment. The County shall have sole responsibility for determination of Property Owner's proportionate share of costs. Part II: GENERAL PROVISIONS A. General Requirements: 1.0 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. 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. rmN l ■ nW sr! 2.0 Release of Liability. Property Owner shall indemnify and hold harmless the County from any and all o�w liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and tea: ° description caused by, arising from, or on account of said design and construction of the site specific Use --me... s' a. associated with USR23-0019, and pay any and all judgments rendered against the County on account of any tic, such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the efi 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. 0 r3.0 Liability for Damage to Road. Property Owner shall be financially responsible for any and all MI damage caused to any Weld County Road as a result of the design and construction of the site -specific Use associated with USR23-0019, without regard to the negligence, or lack thereof, of Property Owner or its agents. This provision shall survive Termination of this Agreement pursuant to section B.2.0, below, and shall be of no further force and effect ten years after mutual execution of this Agreement. 2. 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. 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. B. Violations of Agreement and Remedies Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 - RMCA23-0021 Page 3 of 7 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 so notify Property Owner 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. Thereafter, County may seek any remedy described in this Agreement or otherwise provided by law. 2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of the following events: 2.1 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. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release constitute a Termination. Unless informed in writing by the Property Owner of cessation of activities, and verified by the County, cessation shall be presumed if the County determines that the USR has been inactive for three (3) years. 2.2 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. 2.3 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. 2.4 Completion of Construction: This Agreement shall terminate following Property Owner's completion of construction of the facilities authorized by the underlying USR. Property Owner shall notify the County of completion. 3.0 Revocation of USR: Property Owner acknowledges that failure to comply with the material terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option in its sole reasonable discretion by proceeding with revocation under the then current provisions of the Weld County Code. 4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this owAgreement, County may seek relief in law or equity by filing an action in the Weld District Court. C. Miscellaneous Provisions. � m ow wtl 1.0 Successors and Assigns. -m-, Q tiZ z0 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. Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 — RMCA23-0021 Page 4 of 7 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 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. 5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and incorporated herein, contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiations, representations, and understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement may be changed or supplemented only by a written instrument signed by both parties. 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. � N� 9.0 Release of Liability. Property Owner shall indemnify and hold harmless the County from any and all oN liability loss and damage County may suffer as a result of all suits, actions, or claims of every nature and N ! 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 � ! N� 5,-w■ Na3p • -'mom o cOA o County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. All contractors and other employees engaged in construction of the improvements shall maintain adequate worker's compensation insurance and public liability insurance coverage and shall operate in strict accordance with the laws and regulations of the State of Colorado governing occupational safety and health. 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. Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 - RMCA23-0021 Page 5of7 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. 4942493 Pages: 6 of 7 02/01/2024 03:23 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Wald County , CO funk hilt? IRO 11111 Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 — RMCA23-0021 Page 6 of 7 PROPERTY OWNER: CBEP Solar 26, LLC By: Name: Title: ✓TJ,^..�, S�9nq+w� STATE OF COLORADO County of Weld Date SS. 1► -al -a3 The foregoing instrument was acknowledged before me this Al day of 11Qr'Ni, 2023 , by IZaa1(k,f1 Cf4 nmt„( WITNESS my hand and official seal. BOARD OF COUNTY COMMISSIONERS WELD COUNTY. C OL94ADU WELD COUNTY: ATTEST' r /1 Weld •ou ty Clerk to the B Deputy Cl)k to th BY: 4942493 Pages: 7 of 7 02/01/2024 03:23 PM R Fee:$0.00 Carly Kappes, Clark and Recorder, Wald County , CO VIII II n Kevin D. Ross, Chair JAN 1 7 2024 -'N muulll.mm in u1111111mmim11g111f111111111u11H11111fj1111 ft CHRISTOPHER MlNWEGEN NOTARY PUBLIC NOTARY 10 STATE OF COLORADO = MY C0 lITARY 20224047579 immnuuml°nunmmmtumum`RESDEC2026 Iusum mmu Michael Boulter Farms, LLC c/o CBEP Solar 26, LLC — USR23-0019 — RMCA23-0021 0 4�5 Page 7 of 7 Contract Form Entity Information Entity Name* CBEP SOLAR LLC Entity ID* @00046946 Contract Name* ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT MICHAEL BOULTER FARMS LLC C/O CBEP SOLAR 26 LLC USR23-0019 Contract Status CTB REVIEW Q New Entity? Contract ID 7713 Contract Lead JTRUJILLOMARTINEZ Contract Lead Email jtrujillomartinez@weldgo v.com Parent Contract ID Requires Board Approval YES Department Project # Contract Description* ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT MICHAEL BOULTER FARMS LLC C/O CBEP SOLAR 26 LLC USR23-0019 NO COLLATERAL REQUIRED Contract Description 2 Contract Type" AGREEMENT Amount* $0.00 Renewable* NO Automatic Renewal Grant IGA Department PLANNING Department Email CM- Planning@weldgov.com Department Head Email CM-Planning- DeptHead@weldgov.com County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COUNTYATTORNEY@WEL DGOV.COM Requested BOCC Agenda Due Date Date* 12/23/2023 12/27/2023 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? NO If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID 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* 12/27/2024 Committed Delivery Date Renewal Date Expiration Date* 12/27/2025 Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2 Purchasing Purchasing Approver Purchasing Approved Date Approval Process Department Head DAWN ANDERSON DH Approved Date 01/05/2024 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 01/17/2024 Finance Approver CHRIS D'OVIDIO Legal Counsel BRUCE BARKER Finance Approved Date Legal Counsel Approved Date 01/08/2024 01/09/2024 Tyler Ref # AG 011724 Originator JTRUJILLOMARTINEZ Hello