HomeMy WebLinkAbout20241766.tiffCo r' ro-Ov- U 8oO
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for United Power, Inc. do Mountain Peak Power LLC — USR24-0009
DEPARTMENT: Planning Services DATE: June 11, 2024
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problemlissue:
The Department of Planning Services received a request from the applicant, United Power, Inc. c/o Mountain Peak Power
LLC, requesting that the Board of County Commissioners consider approving the Road Maintenance During Construction
Agreement for (USR24-0009). 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 USR24-0009, and that this item be placed on the
next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Support Recommendation Schedule
Place on BOCC Agenda Work Session Other/Comments:
Perry L. Buck, Pro -Tern
Mike Freeman
Scott K. James
Kevin D. Ross, Chair
Lori Saine
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ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009
THIS AGREEMENT is made this Zulth day of June , 2024, by and between Mountain Peak
Power LLC, 500 Alexander Park Drive, Suite 300, Princeton, New Jersey 08540, hereinafter referred to as
"MPP," 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." Each of MPP and County may be
referred herein to as a "Party" or collectively as the "Parties"
WITNESSETH:
WHEREAS, United Power, Inc. ("United") owns in fee the following described property in the County
of Weld, Colorado:
Being a part of the SE1/4 of Section 9,
Township 2 North, Range 64 West of the
6th P.M., Weld County, Colorado
hereinafter referred to as "the Property;" and
WHEREAS, MPP has a leasehold interest in the Property; and
WHEREAS, MPP has received the Board of County Commissioners conditional approval of USR24-
0009, and
WHEREAS, construction of the MPP facility (the "Project") located on the Property will generate
additional vehicles and heavy traffic directly associated with USR24-0009, over an approximately twelve (12)
month period and
WHEREAS, the County, and MPP are desirous of agreeing to terms involving regulation of haul
routes, traffic control, and road wear arising from such additional traffic.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant, and agree as follows:
•
2 Part I: SITE SPECIFIC PROVISIONS
A. Reserved
' 7
B. Haul/Travel Routes: MPP shall be financially responsible for its proportional share of the
3 x associated costs for maintaining and/or improving designated haul/travel routes.
.12
w3 r 1.0 Haul Routes. The following roads (the "Haul Routes") are designated as haul/travel routes for the
w ;; Property:
1) East and west along County Road 18 between Keenesburg Town Limits and Market Street.
- 2) North and south along County Road 55 between approved site access and County Road 18.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on County Road 55 and travel north-
ra aR south along Weld County Road 55 to reach the nearest paved road for further dispersal. Any County roads
5)No J
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used routinely by project -related traffic associated with USR24-0009 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 the Project mandates deviation from the
above -mentioned haul/travel route for a limited period (six months or less), Weld County Planning Services
may authorize, in writing, the deviation. If MPP requests a specific deviation, County shall approve or deny
the same within fifteen (15) business days of such request. If County fails to timely respond to MPP's request
then MPP's request shall be deemed approved. 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 MPP.
5.0 Haul Route Signage. MPP 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
during construction of the Project without the prior written amendment of this Agreement.
C. Maintenance Requirements:
1.0 Off -Site Dust Control/Abatement: MPP is required to provide dust abatement along affected non -
paved haul route roads, as determined by the County. County will determine the proportionate share of dust
control to be paid by MPP. 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 MPP's facility. The County will have sole responsibility for
determination of the percentage of haul route traffic on all affected roads.
2.0 Winter Maintenance: MPP may, at its discretion, undertake snow and ice removal and such other
winter maintenance activities as are necessary to ensure adequate clearing of the Haul Routes. If MPP.
undertakes these activities, MPP must first obtain proper permits from Weld County, including but not limited
to, a Right -of -Way use permit and comply with the terms of the permits for the duration of winter maintenance.
3.0 Obligation to Maintain Current and Future Haul Routes: MPP will be financially responsible for the
excavation, repair, and patching of any damage on current haul route roads, which in the sole opinion of County
has been created by project -related vehicle traffic to and from the Property. Should MPP'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 MPP's sourced traffic no longer utilizes the above -described haul route and instead
utilizes other portions of County roads, MPP 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 ninety-six (96) 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.
3.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project
construction traffic that causes an immediate threat to public health and safety or renders the road
impassible ("Significant Damage"), County shall, after inspection, notify MPP of such Significant
Damage. MPP 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)
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009 — RMCA24-0014
Page 2 of 7
hours after receipt of such notice and shall commence such repair within seventy-two (72) hours
after receipt of such notice. If MPP identifies Significant Damage prior to receiving notice thereof
from County, MPP 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).
3.2 In County's sole discretion, County may undertake the repairs and/or improvements. To the extent
reasonably practicable, County will coordinate in advance with MPP prior to making such repairs
and/or improvements. MPP's payment for its Proportionate Share of the road
repairs/improvements will be calculated as described in this Agreement.
4.0 Proportionate Share of Road Maintenance Responsibilities:
4.1 MPP shall pay its Proportionate Share of costs of dust control/abatement, paving, repairs, or
maintenance of any particular Haul Route Road. MPP's Proportionate Share shall be based upon
the percentage of project traffic on the road that is attributable to MPP's facility. County personnel
will determine the percentage based on then current Equivalent Single Axle Load (ESAL) Counts.
MPP shall not be responsible for traffic that is not sourced from the MPP's facility.
4.2 The County shall notify MPP of County's preliminary determination and assessment of MPP's
proportionate share of costs. Prior to County's final determination and assessment, County shall
provide MPP with a reasonable opportunity to review, comment upon and supplement County's
data, collection methodology, and determinations. The County shall review and consider MPP's
input prior to making a final determination and assessment. The County shall have sole
responsibility for determination of MPP's proportionate share of costs.
Part H: GENERAL PROVISIONS
A. General Requirements:
1.0 Permits: MPP 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. MPP shall not use any access onto any County road unless and until an access
permit has been issued by the Department of Planning Services. The Department of 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. 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.
2.0 Release of Liability. MPP 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 said design and construction of the site specific Use associated with USR24-
0009, and pay any and all judgments rendered against the County on account of any 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 negligence of the County or its
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009 — RMCA24-0014
Page 3 of 7
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.
3.0 Liability for Damage to Road. MPP shall be financially responsible for any and all damage caused to
any Weld County Road as a result of the design and construction of the site -specific Use associated with
USR24-0009, without regard to the negligence, or lack thereof, of MPP 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.
B. Violations of Agreement and Remedies
1.0 Violation of Terms of Agreement: If in County's reasonable opinion, MPP has violated any of the
material terms of this Agreement, County shall so notify MPP and shall state with specificity the facts and
circumstances which County believes constitute the violation. MPP shall have thirty (30) days within which
to either cure the violation or demonstrate compliance, or if not curable within thirty (30) days, then to present
a curative plan of action to County. 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 MPP'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 MPP 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 MPP 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 MPP's
USR, except that the MPP 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 MPP's completion of
construction of the facilities authorized by the underlying USR. MPP shall notify the County of
completion.
3.0 Revocation of USR: MPP 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 Agreement,
County may seek relief in law or equity by filing an action in the Weld District Court.
C. Miscellaneous Provisions.
1.0 1.0 Successors and Assigns.
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009 — RMCA24-0014
Page 4 of 7
1.1 MPP 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, MPP'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 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 MPP, 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. MPP 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 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
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009 — RMCA24-0014
Page 5 of 7
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, MPP shall provide the County
with proof of MPP's authority to enter into this Agreement within five (5) days of receiving such request.
12.0 Notices. All notices and other communications required or permitted by this Agreement or by
applicable law to be served upon or given to a Party by the other Party shall be deemed duly served, given and
received (i) on the date of service, if served personally or sent by email transmission (with appropriate
confirmation of receipt) to the Party to whom notice is to be given, or (ii) on date of receipt, if mailed by
certified mail, postage prepaid, return receipt requested, or (iii) on the date of receipt, if sent by a nationally
recognized courier for next day service and so addressed as follows:
If to MPP, to:
If to County, to:
Mountain Peak Power, LLC
c/o Kindle Energy LLC
500 Alexander Park Drive, Suite 300
Princeton, NJ 08540
Attention: Grace Kurdian
Email: grace.kurdian@kindle-energy.com
Weld County Board of Commissioners
Attention: County Attorney's Office
1150 "O" Street
Greeley, Colorado 80631
The Parties, by like notice in writing, may designate, from time to time, another address or office to which
notices shall be given pursuant to this Agreement.
13.0 Acknowledgment. County and MPP 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.
14.0 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.
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009 — RMCA24-0014
Page 6 of 7
MPP:
Mountain Peak Power LLC
By: Z&
Name: William Lee Davis
Title: Chief Executive Officer
STATE OF NEW JERSEY
County of Mercer
Date 06/10/2024
SS.
Marissa Biegert
NOTARY PUBLIC
State of New Jersey
ID O 50102652
My Comm. Expires April 5, 2029
The foregoing instrument was acknowledged before me this Ltday of ,
2024, by YV I I / i am Led booi/ s, CEO
WITNESS my hand and official seal.
•
Notary Public
WELD COUNTY: C� ��,�.,,,//
ATTEST: W.144410G Jef. "; tA
Weld Co s ty Clerk to the Board
BY:
Deputy Clerk to the Board
32112758_x5
BOARD OF COUNTY COMMISSIONERS
WELD COUNT
in D. Ross, Chair
JUN 2 6 2024
United Power, Inc. c/o Mountain Peak Power LLC — USR24-0009 - RMCA24-0014
Page 7 of 7
O1,4 /
Contract Form
Entity Information
Entity Name* Entity ID"
MOUNTAIN PEAK POWER LLC @00048752
Contract Name*
ROAD MAINTENANCE DURING CONSTRUCTION
AGREEMENT UNITED POWER, INC C/O MOUNTAIN
PEAK POWER LLC USR24-0009
Contract Status
CTB REVIEW
Q New Entity?
Contract ID
8400
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 UNITED POWER, INC C/O MOUNTAIN PEAK POWER
LLC USR24-0009 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type* Department
AGREEMENT PLANNING
Amount*
$ 0.00
Renewable*
NO
Automatic Renewal
Grant
IGA
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
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* 06/20/2024
06/24/2024
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 *
06/24/2025
Committed Delivery Date
Renewal Date
Expiration Date*
06/24/2026
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
06/18/2024
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
Finance Approver
CHERYL PATTELLI
Legal Counsel
BRUCE BARKER
Finance Approved Date Legal Counsel Approved Date
06/18/2024 06/18/2024
Tyler Ref*
AG062624
Originator
JTRUJILLOMARTINEZ LLOMARTI N EZ
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