HomeMy WebLinkAbout20251815.tiffDocusign Envelope ID: 974F30C4-35C5-4E81-ADF8-13C21 F3B96B6
Use by Special Review (USR) Application
Planning Department Use: Date Received:
Amount $ Case # Assigned:
Application Received By: Planner Assigned:
P roperty Information
Is the property currently in violation? No / ■ Yes Violation Case Number:
Parcel Number: 080_5044OMM. - ___ ___ - - Site Address: 35321 COUNTY ROAD 31
Legal Description: PT S2SE4 4 6 66 LOT B REC EXEMPT 1 AMRECX18-12-0095
Section: 04 , Township 06 N, Range 66 W Zoning District: AG Acreage: 44.49
Within subdivision or townsite? No / ■ Yes Name:
Water (well permit # or water district tap #): 04000625 and 0058967
Sewer (On -site wastewater treatment system permit # or sewer account #): N/A
Floodplain ■ No / la Yes Geological Hazard \INo / ■ Yes Airport Overlay No / ■ Yes
P roject
U SR Use being applied for: Commercial Solar Energy Facility
N ame of proposed business: RDC CO Weld County RS 72 II LLC
P roperty Owner(s) (Attach additional sheets if necessary.)
Name: Jennifer Powell
Company: 35321 Estate LLC
Phone #: (970) 302-9737 Email:
Street Address: 35321 COUNTY ROAD 31
City/State/Zip Code: Greeley, Colorado 80631
APPLICANT/AUTHORIZED AGENT (Authorization Form must be included if there is an Authorized Agent)
N ame: RDC CO Weld County RS 72 II LLC
Company: Reactivate
Phone #: 708-667-6614 Email: bentleyareactivate.com
Street Address: 2045 W Grand Ave Ste B, PMB 52340
City/State/Zip Code: Chicago, IL 60612
I (We) hereby depose and state under penalties of perjury that all statements, proposals, and/or plans submitted with
or contained within the application are true and correct to the best of my (our) knowledge. All fee owners of the property
must sign this application, or if an Authorized Agent signs, an Authorization Form signed by all fee owners must be
included with the application. If the fee owner is a corporation, evidence must be included indicating the signatory has
the le blittcaablio sign for the corporation.
uf0rt.
E-E-E-LittiP8-771- 815
Signature
utopia Hill
9/24/2024
Date
Signature Date
Print Print
I, (We), 35321 Estate, LLC
Departments of Planning
Building, Development Review
and Environmental Health
1402 N 17TH Avenue
P.O. Box 758
Greeley, CO 80632
Authorization Form
, give permission to RDC CO Weld County RS 72 II LLC
(Owner — please print) (Authorized Agent/Applicant—please print)
to apply for any Planning, Building, Access, Grading or OWTS permits on our behalf, for the property
located at (address or parcel number) below:
35321 COUNTY ROAD 31 parcel number 080504400009
Legal Description: of Section 04 , Township 06 N, Range 66 W
PT S2SE4 4 6 66 LOT B REC EXEMPT 1AMRECX18-12-0095
Subdivision Name: Lot Block
Property Owners Information:
Address: 35321 COUNTY ROAD 31
Phone: 720-327-8310 E-mail: Jennifer.powell@paymentnational.com
Authorized Agent/Applicant Contact Information:
Address: 2045 W Grand Ave Ste B, PMB 52340, Chicago, IL 60612
Phone: 708-667-6614 E-mail: bentley@reactivate.com
Correspondence to be sent to: Owner Authorized Agent/Applicant X by: Mail Email X
Additional Info:
I (We) hereby certify, under penalty of perjury and after carefully reading the entire contents of this
document, that the information stated above is true and correct to the best of my (our) knowledge.
Date
08/30/2024
Date
Owner Signature Owner Signature
State of Florida County of Orange 30th
Subscribed and sworn to before me this day of August , 2O 24 by
Jennifer Powell
form of identification.
My commission expires 11/17/2024
by means of online notarization and who provided CO Driver License as
f !rye
6b- V \a os �
1 I I 11/ i aio,,,
�e.\\ BURGS /%0
Q c�P�OTA/p` :3
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My Comm.GExpires
77 11/17/2024 — v
—
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Digitally signed by Sandra Burgos
Date: 2024.08.30 13:27:29 -04'00'
Notary Public
Docusign Envelope ID: 27A1802B-7E11-48AF-ABB8-04491A3F5BBA
Reactivate
Departments of Planning
Building, Development Review
and Environmental Health
1402 North 17TH Avenue
P.O. Box 758
Greeley, CO 80632
February 18, 2025
Re: RDC CO Weld County Rd 49 LLC
Ladies and Gentlemen:
This letter is to notify you that James Bentley is an employee of Reactivate Administration, LLC,
an affiliate Reactivate, LLC, the upstream owner of RDC CO Weld County Rd 49 LLC, and he is authorized
to represent and to present a permit application for RDC CO Weld County Rd 49 LLC. Please note that
James Bentley does not have the authority to sign on behalf of or bind RDC CO Weld County Rd 49 LLC.
Should you have any questions regarding this notice, please do not hesitate to contact us.
Sincerely,
r'wpml ttc
ia. tki(i,
EE4IIC 1 Ft -74$ ..
Utopia Hill,
Chief Executive Officer and President
Document must be filed electronically.
Paper documents are not accepted.
Fees & forms are subject to change.
For more information or to print copies
of filed documents, visit www.sos.state.co.us.
Colorado Secretary of State
Date and Time: 10/28/2014 09:40 AM
ID Number: 20141658635
Document number: 20141658635
Amount Paid: $1.00
ABOVE SPACE FOR OFFICE USE ONLY
Articles of Organization
filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S.)
1. The domestic entity naive of the limited liability company is
35321 Estate, LLC
(The name of a limited liability company must contain the term or abbreviation
"limited liability company", "ltd. liability company", "limited liability co.", "ltd.
liability co.", "limited", "1.1.c.", "llc", or "ltd.". See P-90-601, C.R.S.)
(Caution: The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)
2. The principal office address of the limited liability company's initial principal office is
Street address
Mailing address
35321 Co Rd 31
(Street number and name)
Greeley
(City)
CO 80631
(State) (ZIP/Postal. Code)
United States
(Province — if applicable) (Country)
(leave blank if same as street address) (Street number and name or Post Once Box information)
(City)
(State) (ZIP/Postal Code)
(Province — if applicable) (Country)
3. The registered agent name and registered agent address of the limited liability company's initial registered
agent are
Name
(if an individual)
or
(if an entity)
Powell
Jennifer Marie
(Last) (First)
(Middle) (Suffix)
(Cau ion: Do not provide both an individual and an entity name.)
Street address
Mailing address
(leave blank if same as street address) (Street number and name or Post Office Box information)
35321 Co Rd 31
(Street number and name)
Greeley
(City)
CO 80631
(State) (ZIP Code)
ARTORG LLC
Page 1 of 3 Rev. 12/01/2012
CO
(The following statement is adopted by marking the bas.)
The person appointed as registered agent has consented to being so appointed.
(City)
(State) (ZIP Code)
4. The true name and mailing address of the person forming the limited liability company are
Name
(if an individual)
or
(if an entity)
(Last) (First) (Middle) (Suffix)
Powell Estates, LLC
(Caution: Do not provide both an individual and an entity name.)
Mailing address
35321 Co Rd 31
(Street nitmber and name or Post Office Box information)
Greeley CO 80631
(City)
(State) (ZIP/Postal. Code)
United States .
(Province — if applicable) (Country)
(If the following statement applies, adopt the statement by marldng the box and inch.cde an attachment.)
The limited liability company has one or more additional persons forming the limited liability
company and the name and mailing address of each such person are stated in an attachment.
5. The management of the limited liability company is vested in
(Mark the applicable box.)
one or more managers.
or
the members.
6. (The following statement is adopted by marking the box.)
There is at least one member of the limited liability company.
7. (If the following statement applies, adopt the statement by marking the box and include an attachment.)
This document contains additional information as provided by law.
8. (Caution: Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has
significant legal. consequences. Read instructions before entering a date.)
(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.)
The delayed effective date and, if applicable, time of this document is/are
(mm/dd/yyyy hour: minute am/pm)
Notice:
Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or
acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the
individual's act and deed, or that the individual in good faith believes the document is the act and deed of the
person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity
with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic
statutes, and that the individual in good faith believes the facts stated in the document are true and the
document complies with the requirements of that Part, the constituent documents, and the organic statutes.
ARTORG LLC
Page 2 of 3 Rev. 12/01/2012
This perjury notice applies to each individual who causes this document to be delivered to the Secretary of
State, whether or not such individual is named in the document as one who has caused it to be delivered.
9. The true name and mailing address of the individual causing the document to be delivered for filing are
Powell
(Last.)
35321 Co Rd 31
Jennifer Marie
(First) (Middle) (Suffix)
(Street number and name or Post Office Box information)
Greeley CO 80631
(City)
(State) (ZIP/Postal. Code)
United States
(Province — if applicable) (Country)
(If the following statement applies, adopt the statement by marking the box and include an attachment..)
This document contains the true name and mailing address of one or more additional individuals
causing the document to be delivered for filing.
Disclaimer:
This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice,
and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy
minimum legal requirements as of its revision date, compliance with applicable law, as the same may be
amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should
be addressed to the user's legal, business or tax advisor(s).
ARTORG LLC
Page 3 of 3 Rev. 12/01/2012
OPERATING AGREEMENT
OF
35321 ESTATE, LLC
THIS OPERATING AGREEMENT ("Agreement") is made and entered into as of the 28th
day of October 2014 by and among the persons listed in Exhibit B attached hereto and incorporated
herein by this reference.
WITNESSETH:
WHEREAS, articles of organization for 35321 Estate, LLC,("Company") were filed by its
organizer with the Secretary of State of the State of Colorado on the 28th of October, 20014; and
WHEREAS, The persons Jennifer M. Powell has been the initial Member (defined below)
of the Company since its formation, and has operated the Company pursuant to the terms and
conditions of an oral operating agreement;
WHEREAS, Jennifer M. Powell and the Company desire to admit Jennifer M. Powell to
the Company as of the date hereof, with their respective Interests (defined below) as stated in
Exhibit B and Jennifer M. Powell desires to be so admitted; and
WHEREAS, the Members desire to memorialize the terms and conditions of their
agreements with respect to the Company, and otherwise continue the Company as set forth herein
below.
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of the parties
hereto, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to continue and operate the Company as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. The capitalized terms used in this Operating Agreement shall have
the meanings provided in Exhibit A attached hereto and incorporated herein by this reference.
ARTICLE 2
THE COMPANY
2.1 Name. The name of the company is 35321 Estate, LLC.
2.2 Principal Place of Business. The principal place of business of the Company shall
be 35321 County Road 31, Greeley, Colorado 80631. The Managers may change the principal
place of business of the Company upon ten (10) Business Days notice to the Members.
2.3 Registered Agent. The name and business address of the Company's registered
agent for service of process are Matthew S. Finberg, 2425 Canyon Boulevard, Suite 110, Boulder,
Colorado 80302. The Managers may, from time to time, change the Company's registered agent. In
the event the registered agent ceases to act as such for any reason, the Managers shall promptly
designate a replacement registered agent. In the event of any change in the name or business
address of the Company's registered agent, the Managers shall timely make such filings as are
required by the Act.
2.4 Term. The term of the Company commenced on the date the Articles were filed
with the Secretary of State of the State of Colorado, and shall continue until the winding up and
liquidation of the Company and its business are completed following an Event of Dissolution.
2.5 Purpose of the Company. The purpose of the Company shall be to acquire, own,
hold for investment, lease, manage, finance, and sell real estate and engage in any and all other
activities permissible under Colorado law related thereto or in furtherance thereof in the
discretion of the Managers.
2.6 Title to Property. All real and personal property owned by the Company shall be
owned by the Company as an entity and no Member shall have any ownership interest in such
property in its individual name or right, and each Member's interest in the Company shall be
personal property for all purposes.
2.7 Payments of Individual Obligations. The Company's credit and assets shall be used
solely for the benefit of the Company, and no asset of the Company shall be transferred or
encumbered for or in payment of any individual obligation of any Member.
2.8 Members. The names, addresses, and Interests of the Members of the Company are
as set forth in Exhibit B attached hereto and incorporated herein by this reference. At such time that
other Persons are admitted to the Company as Members, their names, addresses, and Interests shall
be included in Exhibit B attached hereto which shall be amended from time to time by the Managers
to reflect such admissions to, as well as withdrawals from, the Company.
ARTICLE 3
MANAGEMENT OF COMPANY
3.1 Authority of the Managers. Subject to the limitations and restrictions set forth in this
Agreement (including, without limitation, those set forth in Section 3.2), the Managers shall have
the sole and exclusive right to manage the business of the Company and shall have all of the rights
and powers which may be possessed by Managers under the Act including, without limitation, the
right and power to:
2
(a) Lend money, on either a secured or unsecured basis, on such terms as the
Managers shall determine are in the best interests of the Company;
(b) Acquire by purchase, lease, or otherwise any real or personal property which
may be necessary, convenient, or incidental to accomplish the purposes of the Company;
(c) Operate, maintain, improve, construct, own, lease, and otherwise deal with
any real estate and any personal property necessary, convenient, or incidental to accomplish the
purposes of the Company;
(d) Execute any and all agreements, contracts, documents, certifications, and
instruments necessary or convenient in connection with the management, maintenance, and
operation of Company Property, or in connection with managing the affairs of the Company,
including executing amendments to the Articles;
(e) Execute and deliver all checks, drafts, and other orders for the payment of
Company funds;
(0 Cause the Company to enter into and form partnerships, whether as a general
or limited partner, or joint ventures in furtherance of the purposes of the Company;
(g) Purchase insurance to cover risks to the Company Property and business of
the Company and potential liability of the Managers for actions taken in performance of their duties
under this Agreement;
(h) Care for and distribute funds to the Members by way of cash, income, return
of capital, or otherwise, all in accordance with the provisions of this Agreement, and perform all
matters in furtherance of the objectives of the Company and this Agreement;
(i) Engage or retain such employees, agents, independent contractors,
accountants, and legal counsel as the Managers deem necessary or appropriate in furtherance of the
purposes of the Company, determine the durations and terms of such engagements or retentions,
and delegate to such Persons the duty to manage or supervise any of the assets or operations of the
Company;
') Make any and all elections for federal, state, and local tax purposes
including, without limitation, any election, if permitted by applicable law: (i) to adjust the basis of
Company Property pursuant to Code §§ 754, 734(b), and 743(b), or comparable provisions of state
or local law, in connection with transfers of interests in the Company and Company distributions,
and (ii) to extend the statute of limitations for assessment of tax deficiencies against Members with
respect to adjustments to the Company's federal, state, or local tax returns;
3
(k) To the extent provided in Code §§ 6221 through 6231, represent the
Company and the Members before taxing authorities or courts of competent jurisdiction in tax
matters affecting the Company and the Members in their capacity as Members, and file any tax
returns and execute any agreements or other documents relating to or affecting such tax matters,
including agreements or other documents that bind the Company and Members with respect to such
tax matters or otherwise affect the rights of the Company and the Members;
(1) Institute, prosecute, defend, settle, compromise, and dismiss lawsuits or
other judicial or administrative proceedings brought on or in behalf of, or against, the Company or
the Partners in connection with activities arising out of, connected with, or incidental to this
Agreement, and to engage counsel or others in connection therewith; and
(m) Take all actions, not expressly proscribed or limited by this Agreement, as
may be necessary or appropriate to accomplish the purposes of the Company.
The Articles of Organization shall be amended to reflect that the Company shall be Manager
managed and not Member managed from and after the date hereof.
3.2 Limitations on Authority of Managers. Notwithstanding any other provision of this
Agreement, the Managers shall have no authority to perform any of the following acts without the
concurring vote of all of the Members:
(a) Cause or permit the Company to engage in any activity that is not consistent
with the purposes of the Company as set forth in Section 2.5;
(b) Knowingly do any act in contravention of this Agreement, except as required
by applicable law;
(c) Compromise, settle, or confess judgment on any claim against or inuring to
the benefit of the Company or make any assignment for the benefit of creditors; or
(d) Knowingly perform any act which would expose the Members to unlimited
liability for any debt of the Company.
3.3 Actions by the Managers. Any action that may be taken by the Managers shall
require the consent of a majority of the Managers; provided, however, that the Managers may, by
unanimous agreement, delegate to one or more of their number the right and power to deal with any
aspect of the Company's business and/or take any action that the Managers are authorized to take,
without the further consent of the other Managers.
3.4 Duties of the Managers. The Managers shall devote such time and attention as shall
be appropriate to manage and supervise the Company's business properly and efficiently, and shall
take all such actions as shall be prudent and appropriate for the proper management and supervision
4
of the business of the Company and the accomplishment of its purposes. Without limiting the
generality of the foregoing, the Managers shall:
(a) Take all actions which may be necessary or appropriate for the continuation
of the Company's valid existence as a limited liability company under the laws of the State of
Colorado and of each other jurisdiction in which such existence is necessary to protect the limited
liability of the Members or to enable the Company to conduct the business in which it is engaged;
(b) Upon request, supply to any Member any information requested regarding
the Company or its activities, provided that obtaining the information is not unduly burdensome to
the Managers;
(c) Obtain and maintain in effect such insurance against casualty, liability and
other risks as would be carried by a prudent person engaged in a business similar to the Company's;
(d) Cause to be prepared and timely filed with appropriate governmental
authorities all reports and returns required to be filed under, and cause the Company to comply with,
all then current applicable laws, rules and regulations;
(e) Make a report to the Members at their annual meeting of the activities of the
Company for the previous year.
(0 Take and retain minutes of every meeting of the Members.
3.5 Separate Operation of Company Business. The Managers shall cause the Company
to conduct its business and operations separate and apart from that of any Manager, Member, or
Affiliate of a Manager or Member.
3.6 Number, Tenure and Qualifications of Managers. Jennifer M. Powell is the initial
Manager of the Company. The number of Managers of the Company shall be fixed from time to
time by vote of Members owning more than fifty percent (50%) of the Interests, but in no instance
shall there be fewer than one Manager. The initial Manager shall hold office until he dies, becomes
incapacitated so as to be unable to serve, resigns, or is removed under this Agreement. Any
successor Manager shall be elected by a vote of the Members and shall hold office until the next
annual meeting of Members or until his/her successor shall have been elected and qualified.
3.7 Right to Rely on Managers. Any Person dealing with the Company may rely
(without duty of further inquiry) upon a certificate signed by any Manager as to:
(i) The identity of any Manager or Member;
5
(ii) The existence or nonexistence of any fact or facts which constitute a
condition precedent to acts by a Manager or which are in any other manner germane to the affairs of
the Company;
(iii) The Persons who are authorized to execute and deliver any instrument or
document of the Company; or
(iv) Any act or failure to act by the Company or any other matter whatsoever
involving the Company or any Member.
3.8 Salaries and Reimbursements. The salaries and other compensation of the Managers
of the Company shall be fixed from time to time by the vote of Members, and no Manager shall be
prevented from receiving such salary by reason of the fact that he or she is also a Member of the
Company. The Managers shall be reimbursed by the Company for all reasonable expenses incurred
by them on the Company's behalf.
3.9 Other Activities.
(a) Each Manager shall be free to serve any other Person or enterprise in any
capacity that it may deem appropriate in its discretion.
(b) Insofar as permitted by applicable law, each Manager (acting on his or her
own behalf) may, notwithstanding this Agreement, engage in whatever activities he or she chooses,
whether the same are competitive with the Company or otherwise, without having or incurring any
obligation to offer any interest in such activities to the Company or any Member, and neither this
Agreement nor any activity undertaken pursuant hereto shall prevent any Manager from engaging in
such activities, or require any Member to permit the Company or any Member to participate in any
such activities.
3.10 Liability. Notwithstanding anything to the contrary in this Agreement, and except to
the extent required by applicable law, the Managers shall not be liable to the Company or to any
Member for any action taken or omitted to be taken by such Manager, provided that such Manager
acted in good faith and such action or omission does not involve the gross negligence, willful
misconduct, or fraud of such Manager.
3.11 Indemnification of Managers.
(a) The Company, its receiver, or its trustee (in the case of its receiver or trustee,
to the extent of Company Property) shall, except as otherwise provided below in Section 3.11(d),
indemnify, save harmless, and pay all judgments and claims against each Manager relating to any
liability or damage incurred by reason of any act performed or omitted to be performed by such
Manager in connection with the business and activities of the Company, including attorneys' fees
incurred by such Manager in connection with the defense of any action based on any such act or
6
omission, which attorneys' fees may be paid as incurred, including all such liabilities under federal
and state securities laws (including the Securities Act of 1933, as amended) as permitted by law.
(b) In the event of any action by a Member against any Manager (in their
respective capacities as such) the Company shall, except as otherwise provided below in Section
3.11(d), indemnify, save harmless, and pay all expenses of such Manager, including attorneys' fees,
incurred in the defense of such action, if such Manager is successful in such action.
(c) The Company shall, except as otherwise provided below in Section 3.11(d),
indemnify, save harmless and pay all expenses, costs, or liabilities of any Manager who for the
benefit of the Company makes any deposit, acquires any option, or makes any other similar
payment or assumes any obligations in connection with any property proposed to be acquired by the
Company and who suffers any financial loss as the result of such action.
(d) Notwithstanding the foregoing provisions of this Section, no Manager shall
be indemnified from any liability arising as a consequence of fraud, bad faith, willful misconduct, or
gross negligence by such Manager.
(e) Notwithstanding any other provision to the contrary in this Section above, in
the event that any provision in any of this Section is determined to be invalid in whole or in part,
such Section shall be enforced to the maximum extent permitted bylaw.
3.12 Resignation. Any Manager of the Company may resign at any time by giving
written notice to the Members and to the Company. The resignation of any Manager shall take
effect upon receipt of notice thereof by the Company, or at such later time as shall be specified in
such notice. Unless otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
3.13 Removal. All or any lesser number of the Initial Managers may be removed at any
time, with (but not without) cause, at a meeting called expressly for that purpose, by the affirmative
vote of the Members owning more than fifty percent (50%) of the Interests. For purposes of this
Agreement, the term "cause" means gross negligence, fraud, conviction of a criminal offense, or
absence from 3 or more Manager meetings in any three (3) month period. Any successor Manager
may be removed with or without cause at a meeting called expressly for that purpose by the
affirmative vote of the Members then entitled to vote at an election of Managers owning 50% or
more of the Interests.
3.14 Vacancies. Any vacancy occurring for any reason in the group of Managers may be
filled by written agreement of a majority of the remaining Managers. A Manager chosen to fill
vacancy shall serve the unexpired term of his or her predecessor in office. Any Manager's position
to be filled by reason of an increase in the number of Managers shall be filled by written agreement
of a majority of the Managers then in office or by election at an annual meeting or at a special
meeting of Members called for that purpose. A Manager chosen to fill a position resulting from an
7
increase in the number of Managers shall hold office until the next annual meeting of Members and
until his successor has been elected and qualified.
ARTICLE 4
MEMBERS
4.1 Authority. No Member of the Company shall have any power or authority to bind
the Company in any way, to pledge its credit, or to render it liable for any purpose.
4.2 Limitation of Liability. Each Member's liability for the debts and obligations of the
Company shall be limited as set forth in the Act and other applicable law.
4.3 Priority and Return of Capital. Except as expressly provided herein, no Member
shall have priority over any other Member, either as to the return of Capital Contributions or as to
Net Profits, Net Losses or distributions; provided that this Section shall not apply to loans (as
distinguished from capital contributions) which a Member has made to the Company.
ARTICLE 5
MEETINGS OF, AND ACTIONS BY,, MEMBERS
5.1 Actions by Members. Except as provided in Section 5.2, all actions required or
permitted to be taken by the Members as a group (as opposed to any Member individually) shall
only be taken at a meeting held in accordance with the provisions of this Article 5. If a quorum is
present at such meeting, the affirmative vote of Members holding at least a majority of the voting
power of the Members represented at such meeting, in person or by proxy, entitled to vote on the
subject matter shall be the act of the Members, unless the vote of a greater or lesser proportion or
number is otherwise required by the Act, by the Articles or by this Agreement.
5.2 Action Without a Meeting. Action required or permitted to be taken by the
Members as a group may be taken without a meeting if the action is evidenced by one or more
written consents describing the action taken, signed by each Member entitled to vote and delivered
to the Managers of the Company for inclusion in the minutes or for filing with the Company
records. Action taken pursuant to this Section is effective when all Members entitled to vote have
signed the consent, unless the consent specifies a different effective date. The record date for
determining Members entitled to take action without a meeting shall be the date the first Member
signs a written consent.
5.3 Annual Meeting. The annual meeting of the Members shall be held at such time and
place, either within or without the State of Colorado, as designated by the Managers from time to
time, for the purpose of the transaction of such business as may come before the meeting.
5.4 Special Meetings. Special meetings of the Members, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by any Manager or by any Member or
Members holding at least twenty percent (20%) of the votes entitled to be cast at such meeting. The
8
date, time and place of a special meeting of the Members shall be set by the person or persons
calling such special meeting, provided that the place of the special meeting shall be within the State
of Colorado at a reasonably convenient location, and the time and date of the special meeting shall
be reasonable.
5.5 Notice of Meetings. Whenever Members are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which shall state the place, date
and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the written notice of any meeting shall be
given not less than ten days or more than fifty (50) days before the date of the meeting, either
personally or by mail, to each Member entitled to vote at such meeting. If mailed, such notice shall
be deemed to be given when deposited in the United States mail, postage prepaid, directed to the
Member at his address as it appears on the records of the Company. Notwithstanding the foregoing,
any required notice may be waived by any Member by execution of a written waiver either prior to
or at a meeting for which notice was required to be given.
5.6 Waiver of Notice. When any notice is required to be given to any Member, a waiver
thereof in writing signed by the Person entitled to such notice, whether before, at, or after the time
stated therein, shall be equivalent to the giving of such notice. If a Member attends any meeting,
such Member (i) waives objection to lack of notice or defective notice of such meeting unless the
Member, at the beginning of the meeting, objects to the holding of the meeting or the transacting of
business at the meeting; and (ii) waives objection to consideration at such meeting of a particular
matter not within the purpose or purposes described in the meeting notice unless the Member object
to considering the same when it is presented.
5.7 Record Date. For the purpose of determining Members entitled to notice of or to
vote at any meeting of Members or any adjournment thereof, or Members entitled to receive
payment of any distribution, or in order to make a determination of Members for any other purpose,
the date on which notice of the meeting is mailed or the date on which the resolution declaring such
distribution is adopted, as the case may be, shall be the record date for such determination of
Members. When a determination of Members entitled to vote at any meeting of Members has been
made as provided in this Section, such determination shall apply to any adjournment thereof.
5.8 Proxies. At all meetings of Members, a Member may vote in person or by proxy
executed in writing by the Member or by a duly authorized attorney -in -fact. Such proxy shall be
filed with the Manager of the Company before or at the time of the meeting. No proxy shall be
valid after eleven months from the date of its execution, unless otherwise provided in the proxy.
5.9 Voting Power. Each Member shall have one vote, or fraction of a vote, for each
percentage point, or fraction of a percentage point, in the Member's Interest, determined as of the
relevant record date.
9
5.10 Quorum. Members holding at least thirty-three and 33/100 (33.33%) of the total
votes held by all Members, represented in person or by proxy, shall constitute a quorum at any
meeting of Members.
ARTICLE 6
CAPITAL
6.1 Members' Initial Contributions. The amount of cash and the nature and agreed value
of any property, initially contributed or to be contributed to the Company by each Member, are set
forth on Exhibit B hereto.
6.2 Additional Contributions. The Members shall make additional capital contributions
to the Company from time to time in accordance with this Section.
(a) Additional capital contributions from the Members may be required during
the term of the Company in such amounts as may be reasonably necessary to fund the operations of
the Company in the ordinary course of its business and provide for timely payment of its
obligations.
(b) Any additional capital contribution must be approved by the affirmative vote
of Members owning more than 75% of the Interests, and in the event of such approval, it shall be
binding upon all Members.
(c) Unless the Members unanimously otherwise agree, additional capital
contributions shall be contributed by the Members in proportion to their Interests.
(d) Each Member agrees to pay to the Managers all additional capital
contributions which are approved as provided in paragraph (b), above within ten (10) days
following notice of assessment of such additional capital contribution by the Managers. Notice of
assessment shall state the aggregate amount of the additional capital contribution called for and each
Member's share thereof.
6.3 Rights of Defaulting Member. Whenever a Member shall have committed a default
as of his obligations under Section 6.2, the Member shall have no vote in the decisions of the
Company and shall be bound by all decisions of the remaining Members who shall not then be in
default. Furthermore, the defaulting Member shall not be entitled to any distribution of capital,
profit, cash flow, or otherwise and shall not be entitled to serve as a Manager until he shall have
paid any such obligation to the Company or to any other Member arising by virtue of such default
under the provisions of this Article 6.
6.4 Withdrawal or Reduction of Members' Contributions to Capital. A Member,
irrespective of the nature of his or her contribution, has only the right to demand and receive cash in
return for his or her contribution to capital.
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6.5 Interest On and Return of Capital Contributions. No Member shall be entitled to
interest on his Capital Contribution or to return of his Capital Contribution except with the consent
of the Members or as otherwise specifically provided for herein.
6.6 Proportionate Hold -Harmless. It is recognized by the Company that, in order to
obtain the necessary loans needed to carry on the purposes of the Company, it may be necessary for
the individual Members to execute loan agreements which call for individual, joint and several
liability. If such loans are approved by the Managers and by the concurrent affirmative vote of
Members owning a majority in Interest of the voting power in the Company, the Members hereby
agree to execute such loan agreements upon request by the Managers. Notwithstanding such
individual liability to third parties, as among the Members, it is specifically understood and agreed
that no Member or Members shall be forced to suffer any greater liquidated loss than is equal to
their percentage of the net losses of the Company. Further, the Members hereby agree that those
Members which are obligated to pay more than their proportional share of any Company loan shall
be reimbursed by those Members who are required to pay less than their proportional share of any
such loan so that liability for such loan is ultimately shared by all Members in proportion to their
interest in the losses of the Company. Each Member hereby grants to all other Members a security
interest in his, her, or its interest in the Company to secure such obligation.
6.7 No Third -Party Rights. This Article 6 shall not confer any rights or benefit to or
upon any person or entity not a party to this Agreement, including, but not limited to, any holder of
any obligation secured by a mortgage, deed of trust, security interest or other lien or encumbrance
upon or affecting the Company, its assets or any interest of a Member therein.
ARTICLE 7
DISTRIBUTIONS
7.1 Distributions. The Managers shall distribute any cash of the Company which they,
in the reasonable exercise of their discretion, believe is not required to meet the anticipated cash
requirements of the Company. Distributions of cash shall be made to the Members in accordance
with their Interests.
7.2 Withholding. All amounts withheld pursuant to the Code or any provisions of state
or local tax law with respect to any payment or distribution to the Members from the Company shall
be treated as amounts distributed to the relevant Member or Members. The Managers are authorized
to withhold from distributions to the Members and to pay over to federal, state or local government
any amounts required to be so withheld pursuant to the Code or any provisions of any other federal,
state, or local law and shall allocate such amounts to the Members with respect to which such
amount was withheld.
7.3 Limitations on Distributions. A Member may not receive a distribution from the
Company to the extent that, after giving effect to the distribution, all liabilities of the Company,
other than liabilities to Members on account of their Membership interests, would exceed the fair
market value of the Company's assets.
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7.4 Suspended Distributions. Notwithstanding any provision of Section 7.1 hereof to
the contrary, distributions to any Member pursuant to such Section during any Fiscal Year shall not
exceed the maximum amount that can be distributed to such Member without creating a deficit
balance in his Capital Account (computed without regard to any allocations for the current Fiscal
Year) that is in excess of the sum of (1) the amount he is obligated to restore (pursuant to the terms
of this Agreement or otherwise) and (b) the amount he is deemed obligated to restore pursuant to the
penultimate sentences of §§ 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations. Any distribution
prevented by this Section ("Suspended Distribution") shall be set aside by the Company. All or a
portion of any Suspended Distribution shall be made to the Member (or the successor -in -interest of
the Member) to whom, but for this Section, the Suspended Distribution would have been made at
the earliest possible time that such distribution can be made without violating the provisions of this
Section. Suspended Distributions not distributed pursuant to the previous sentence prior to the
dissolution of the Company pursuant to Section 14.1 hereof shall be treated as proceeds from the
liquidation of the Company's assets and distributed to the Members pursuant to Section
14.3(a)(vi)hereof.
ARTICLE 8
ALLOCATIONS
8.1 General Allocations of Profits and Losses. Subject to the other provisions of this
Article 8, the Profits and Losses of the Company for each Fiscal Year shall be allocated among and
shared by the Members in proportion to their Interests.
8.2 Recaptures. All recapture of income tax deductions resulting from the sale or
disposition of Company property shall be allocated to the Member or Members to whom the
deduction that gave rise to such recapture was allocated hereunder to the extent that such Member is
allocated any gain from the sale or other disposition of such property.
8.3 Limitation on Allocation of Losses. Notwithstanding any other provision of this
Agreement, no allocation of Losses, or any item in the nature of expenses or losses shall be made to
a Member if such allocation would cause or increase an Adjusted Capital Account Deficit for such
Member. The amount otherwise allocable to a Member but for the foregoing sentence shall instead
be allocated to the other Members in proportion to their Interests, subject again to the first sentence
of this Section.
8.4 Allocation in the Event of a Change in Interest. In the event that a Member's interest
in the Company changes during any Fiscal Year, the Managers shall determine such Member's
distributive share of any item of income, gain, loss, deduction, or credit for such Fiscal Year by
reference to this Agreement and by using any convention permitted by Code § 706 and the
Regulations thereunder.
8.5 Qualified Income Offset. In the event a Member receives any adjustments,
allocations, or distributions described in §1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations,
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items of Company income and gain (consisting of a pro rata portion of each item of Company
income, including gross income, and gain for such year) shall be specially allocated to that Member
in an amount and manner sufficient to eliminate, to the extent required by the Regulations, any
Adjusted Capital Account Deficit of that Member as quickly as possible, provided that an allocation
pursuant to this Section shall be made only if and to the extent that the Member would have an
Adjusted Capital Account Deficit after all other allocations provided for in this Agreement have
been tentatively made as if this Section were not in this Agreement. The provisions of this Section
are intended to comply with the requirements of § 1.704-1(b)(2)(ii)(d) of the Regulations, and shall
be interpreted consistently therewith.
8.6 Gross Income Allocation. In the event any Member has a deficit Capital Account at
the end of any Company Fiscal Year which is in excess of the sum of (i) the amount such Member
is obligated to restore, and (ii) the amount such Member is deemed to be obligated to restore
pursuant to the penultimate sentences of §§ 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each
such Member shall be specially allocated items of Company income and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this Section shall be made if
and only to the extent that such Member would have a deficit Capital Account in excess of such
sum after all other allocations provided for in this Agreement have been tentatively made as if this
Section and Section 8.5 hereof were not in this Agreement.
8.7 Special Provisions Applicable in the Event of Nonrecourse Borrowings.
(a) Capitalized terms used in this Section and not otherwise defined shall have
the meaning given them in § 1.704-2 of the Regulations.
(b) Nonrecourse Deductions of the Company for any fiscal year or other period
shall be allocated in the same manner as Net Losses under Section 8.1.
(c) Any Partner Nonrecourse Deductions for any Fiscal Year shall be specially
allocated to the Member who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance
with Regulations § 1.704-2(i)(1).
(d) Except as otherwise provided in § 1.704-2(� of the Regulations,
notwithstanding any other provision of this Article 8, if there is a net decrease in Partnership
Minimum Gain during any Company Fiscal Year, each Member shall be specially allocated items
of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an
amount equal to such Member's share of the net decrease in Partnership Minimum Gain, determined
in accordance with the Regulations § 1.704-2(g). Allocations pursuant to the previous sentence shall
be made in proportion to the respective amounts required to be allocated to each Member pursuant
thereto. The items to be so allocated shall be determined in accordance with §§ 1.704-2(x(6) and
1.704-2(j)(2) of the Regulations. This Section 8.7(d) is intended to comply with the minimum gain
13
chargeback requirement in § 1.704-2(0 of the Regulations and shall be interpreted consistently
therewith.
(e) Except as otherwise provided in § 1.704-2(i)(4) of the Regulations,
notwithstanding any other provision of this Article 8, if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any Company
Fiscal Year, each Member who has a share of the Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with § 1.704-2(i)(5) of the
Regulations, shall be specially allocated items of Company income and gain for such Fiscal Year
(and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net
decrease in Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse
Debt, determined in accordance with Regulations § 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts required to be allocated to
each Member pursuant thereto. The items to be so allocated shall be determined in accordance with
§ 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 8.7(e) is intended to comply with
the minimum gain chargeback requirement in § 1.704-2(i)(4) of the Regulations and shall be
interpreted consistently therewith.
(f) To the extent permitted by § 1.704-2 of the Regulations, the Managers shall
endeavor to treat distributions of cash as having been made from the proceeds of a Nonrecourse
Liability or a Partner Nonrecourse Liability only to the extent that such distributions would cause or
increase an Adjusted Capital Account Deficit for any Member.
8.8 Curative Allocations. The allocations set forth in Section 8.5, 8.6, and 8.7
("Regulatory Allocations") are intended to comply with certain requirements of the Regulations. It
is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset
either with other Regulatory Allocations or with special allocations of other items of Company
income, gain, loss, or deduction pursuant to this Section 8.8. Therefore, notwithstanding any other
provision of this Article 8 (other than the Regulatory Allocations), the Managers shall make such
offsetting special allocations of Company income, gain, loss, or deduction in whatever manner they
determine appropriate so that, after such offsetting allocations are made, each Member's Capital
Account balance is, to the greatest extent possible, equal to the Capital Account balance such
Member would have had if the Regulatory Allocations were not part of this Agreement and all
Company items were allocated pursuant to the other Sections of this Article 8. In exercising their
discretion under this Section, the Managers shall take into account future Regulatory Allocations
that, although not yet made, are likely to offset other Regulatory Allocations previously made.
8.9 Tax Allocations: Code § 704(c).
(a) In accordance with Code § 704(c) and the Regulations thereunder, income,
gain, loss, and deduction with respect to any property contributed to the capital of the Company
shall, solely for tax purposes, be allocated among the Members so as to take account of any
variation between the adjusted basis of such properly to the Company for federal income tax
purposes and its initial Gross Asset Value.
14
(b) In the event the Gross Asset Value of any Company asset is adjusted
pursuant to Section 1.14 hereof, subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Gross Asset Value in the same manner as under Code § 704(c)
and the Regulations thereunder.
ARTICLE 9
ADMINISTRATIVE MATTERS
9.1 Books and Records. At the expense of the Company, the Managers shall maintain at
the principal place of business of the Company separate books and records of all operations and
expenditures of the Company. The books and records of the Company shall be maintained in
accordance with the method of accounting used for federal income tax purposes. The Managers
shall further maintain at the principal place of business of the Company the following documents:
(a) A current list of the full name and last known business, residence, or mailing
address of each Member and Manager, both past and present;
(b) A copy of the Articles of Organization of the Company and all amendments
thereto;
(c) Copies of the Company's federal, state and local income tax returns and
reports, if any, for the four most recent years;
(d) Copies of the Company's currently effective written Operating Agreement,
copies of any writings permitted or required with respect to a Member's obligation to contribute
cash, property or services to the Company for the three most recent Fiscal Years;
(e) Minutes of every annual, special, and court -ordered meeting of the
Members;
(0
without a meeting.
Any written consents obtained from Members for actions taken by Members
Any Member or his designated representative shall have the right, at any reasonable time, to have
access to and inspect and copy the contents of the books and records of the Company and the other
documents described in this Section.
9.2 Annual Reports. If requested by a majority in Interest of the Members before the
end of a Fiscal Year, within forty-five (45) days after the end of such Fiscal Year, the Managers
shall cause to be prepared, and each Member furnished with, an annual report of the Company's
operations, prepared on the basis of the accounting method specified in Section 9.1, and consisting
of at least a balance sheet of the Company as of the last day of such Fiscal Year, a statement of
15
income and expenses for such Fiscal Year, and a statement of each Member's Capital Account as of
the end of such Fiscal Year.
9.3 Returns and Elections.
(a) The Managers shall cause the preparation and timely filing of all tax returns
required to be filed by the Company pursuant to the Code and all other tax returns deemed
necessary and required in each jurisdiction in which the Company does business. Copies of such
returns, or pertinent information therefrom, shall be furnished to the Members within a reasonable
time after the end of the Company's Fiscal year. For Colorado tax purposes, the Managers shall file
with the Colorado Department of Revenue, together with the Company's annual Colorado return, an
agreement for each non-resident Member to properly file a Colorado income tax return and to make
timely payment of all Colorado taxes imposed with respect to such Member's share of the Company
income, as required by C.R.S. §39-22-601(4.5).
(b) All elections permitted to be made by the Company under federal or state
laws shall be made by the Managers in their sole discretion.
9.4 Tax Matters Member. Kemp Bohlen is hereby designated the "tax matters partner"
as defined in § 6231(a)(7) of the Code. The tax matters partner is authorized and required to
represent the Company, at the Company's expense, in connection with all examinations of the
Company's affairs by tax authorities, including resulting judicial and administrative proceedings,
and to expend Company funds for professional services and costs associated therewith.
9.5 Loans to Company. Any Person, with the consent of the Managers, may lend or
advance money to the Company. If any Member makes any loan or loans to the Company or
advances money on its behalf, the amount of any such loan or advance shall not be treated as a
Capital Contribution but shall be a debt due from the Company. The amount of any such loan or
advance by a lending Member shall be repayable out of the Company's cash and shall bear interest
at such rate as the Managers and the lending Partner shall agree but not in excess of the maximum
rate permitted by law. If any Manager, or an Affiliate of any Manager is the lending Person, the rate
of interest shall be determined by the Managers taking into consideration, without limitation,
prevailing interest rates and the interest rates the lender is required to pay in the event such lender
has itself borrowed funds to loan or advance to the Company and the terms and conditions of such
loan, including the rate of interest, shall be no less favorable to the Company than if the lender had
been an independent third party. None of the Members shall be obligated to make any loan or
advance to the Company unless otherwise unanimously agreed by them.
9.6 Operating Restrictions.
(a) No loan or guarantees of loans shall be made by the Company to any
Manager or Member or any Affiliate of a Manager or Member.
16
(b) No rebates, kickbacks, or reciprocal arrangements may be received or
entered into by any Manager, nor may any Manager participate in any business arrangement which
would circumvent this Agreement.
(c) All Property in the form of cash not otherwise invested shall be deposited for
the benefit of the Company in one or more accounts of the Company or any of its Affiliates,
maintained in such financial institutions as the Managers shall determine or shall be invested in
short-term liquid securities or other cash -equivalent assets or shall be left in escrow, and
withdrawals shall be made only in the regular course of Company business on such signatures as the
Managers may determine from time to time.
9.7 Limitation on Out -of State Business.
(a) In addition to any other limitation or restriction contained herein on the
activities of the Company, the Company shall not, without the consent of a majority in Interest of
the Members, engage in any business or activity outside the State of Colorado unless the Company
shall have first satisfied the following prerequisites:
(1) The Company shall have satisfied the requirements, if any, imposed
by the law of such other state relating to registration or qualification of foreign
limited liability companies doing business in such other state; and
(2) The Company shall have received the opinion of its legal counsel to
the effect that the liability of the Members for Company obligations arising under
the law of such other state will not exceed the liability of the Members under the
Act.
9.8 Transactions with Members and Managers. To the extent permitted by applicable
law and except as otherwise provided in this Agreement, the Managers are hereby authorized to
purchase property from, sell property to, or otherwise deal with any Member or Manager acting on
its own behalf, or any Affiliate of any Member or Manager, provided that such purchase, sale or
other transaction shall be made on terms and conditions which are no less favorable to the Company
than if the sale, purchase or other transaction has been entered into with an independent third party.
ARTICLE 10
RESTRICTIONS ON TRANSFERABILITY
10.1 General. Except as otherwise specifically provided herein or by operation of law, a
Member shall not have the right or power to sell, assign, pledge, transfer, or in any other manner
whatsoever dispose of all or any part of its Membership interest in the Company (including, without
limitation, voting rights or the rights to receive the Member's share of profits or other compensation
by way of income and the return of contributions) in the Company. Any purported transfer of all or
any part of a Member's Membership interest made in violation of this Agreement shall be void as
against the Company, its Managers, and its Members.
17
10.2 Right of First Refusal.
(a) Except as set forth in Section 10.3 and Section 10.2(b) below, if a Member
("Selling Member") desires to sell or transfer all or any portion of its Membership interest in the
Company ("Offered Interest"), the Selling Member shall give notice ("Offering Notice") to the
Company and the other Members stating the Selling Member's desire to sell, the identity of the
proposed purchaser (if known), the proposed purchase price, and any other material terms of the
proposed sale (including, without limitation, the terms of any purchase of indebtedness owed by the
Company to the Selling Member). The other Members shall then have a right to purchase all, but
not less than all, of the Offered Interest, in the manner set forth below.
(i) Each Member (other than the Selling Member) shall have the right to
purchase all or a portion of his pro rata share of the Offered Interest, and all or a portion of his pro
rata share of the amount of the Offered Interest another Member has the right to purchase but
declines to purchase. For this purpose, the Members' pro rata shares shall be determined by
reference to the respective Interests of the Members desiring to acquire a portion of the Offered
Interest.
(ii) A Member's right to purchase shall be exercised by giving notice
("Acceptance Notice") to the Selling Member within thirty (30) days after receiving the Offering
Notice. The Acceptance Notice shall state the portion of the Offered Interest that the Member
desires to purchase, and shall constitute a binding contract to purchase that portion of Offered
Interest, or the portion of the Offered Interest the Member has the right to purchase, whichever is
less.
(iii) The aggregate consideration to be paid by the other Members upon
exercise of the right of first refusal option granted by this paragraph, shall consist of (A) cash in an
amount equal to the sum of (I) the amount of cash, if any, and (II) the value, determined by
agreement of the parties or by independent appraisal, of any non -cash consideration, included in the
consideration for purchase of the Offered Interest and Company indebtedness described in the
Offering Notice (without regard to any differences in tax consequences to the Selling Member of
receiving cash in lieu of such other consideration); and (B) if the terms described in the Offering
Notice contemplate payment of any portion of the purchase price in the form of a promissory note
or other obligation to pay cash in the future, a note or obligation of the other Members upon terms
equivalent thereto in all material respects.
(iv) If the other Members elect to purchase the full amount of the Offered
Interest, the closing of the purchase shall occur not later than forty-five (45) days after the expiration
of the 30 -day option period.
(v) If the other Members do not collectively elect to purchase the entire
Offered Interest, the Selling Member shall, for a period of forty-five (45) days after the expiration of
18
the 30 -day option period, be free to sell the Offered Interest to any financially responsible purchaser
upon terms no more favorable to the purchaser than those disclosed in the Offering Notice.
(b) Upon the death of a Member, Section 10.2(a) above shall apply to the deceased
Member's Membership Interest and to his estate; provided, however, the purchase price of said
interest shall be determined by the appraisal of the interest employed and the value reported for
federal estate tax purposes (or if no such value is determined, the appraisal of said interest by a
licensed appraiser mutually selected by the decedent's personal representative and the remaining
Members). The cost of any such appraisal shall be solely borne by decedent's estate.
10.3 Exceptions to Right of First Refusal. No Member shall have a right to acquire all or
any portion of the interest of a Member in the Company in the event of a gift of all or any portion of
such interest by a Member to a Member of his or her family or of a sale or transfer of all or any
portion of such interest by a Member to (i) a trust solely for the benefit of the Member or (ii) any
other entity at least 80% of the value and voting power of which is owned (directly or indirectly) by
such Member.
10.4 Encumbrances by a Member. No Member, and no joint tenant in a Membership
interest, shall have the right to pledge, mortgage, assign for security purposes or hypothecate all or
any portion of its Membership interest or joint tenancy therein at any time, except with the written
consent of all other Members. Violation of this provision shall afford each other Member the right
and option to void any such pledge, mortgage, assignment or hypothecation within forty-five (45)
days after receiving actual written notice of such event. The right to invalidate a transaction shall be
exercised by serving written notice upon the creditor or other third party, and upon the Member
who violated this provision, and the invalidation shall be effective ten (10) days thereafter. If a
Member or a joint tenant in a Membership interest violates this provision, it agrees to hold harmless
and indemnify all other Members and the Company from all costs and expenses, including
attorneys' fees, in regard thereto or as the result of the taking of action pursuant to this section.
10.5 Transferee Not Substitute Member in Absence of Consent.
(a) Notwithstanding anything contained herein to the contrary, if Members
owning not less than seventy-five percent (75%) of the voting Interests in the Company do not
approve of the proposed sale, transfer, or assignment of the Selling Member's interest, the proposed
purchaser, transferee, or assignee of the Selling Member's interest shall have no right to participate
in the management of the business and affairs of the Company or to become a Member. The
purchaser, transferee, or assignee shall only be entitled to receive the share of profits or other
compensation by way of income and the return of contributions, to which the Selling Member
would otherwise be entitled ("Economic Interest" of a Member). No transfer of a Member's interest
in the Company (including any transfer of the Economic Interest or any other transfer which has not
been approved by unanimous written consent of the Members) shall be effective unless and until
written notice (including the name and address of the proposed purchaser, transferee or assignee and
the date of such transfer) has been provided to the Company and the non -transferring Member(s).
19
(b) Upon and contemporaneously with any transfer of a Selling Member's
Economic Interest in the Company which does not at the same time transfer the Selling Member's
other Membership interests in the Company (including, without limitation, the voting rights of the
Selling Member), the Company shall purchase from the Selling Member, and the Selling Member
shall sell to the Company, all remaining Membership interests retained by the Selling Member
which were previously attributable to the transferred Economic Interest for a purchase price of One
Hundred and No/100 Dollars ($100.00).
(c) The restrictions on transfer contained in this Section are intended to comply
(and shall be interpreted consistently) with the restrictions on transfer set forth in § 7-80-702 of the
Act.
10.6 Execution of Certificates, Etc. In the event of the sale, transfer or assignment of a
Selling Member's interest in the Company, and as a condition to recognizing the effectiveness and
the binding nature of any such sale, transfer, or assignment as against the Company or otherwise,
(irrespective of whether the Members unanimously approve the substitution of the purchaser,
transferee, or assignee as a new Member) the remaining Members may require the Selling Member
and the proposed purchaser, transferee, or assignee to execute, acknowledge, and deliver to the
transferee, or assignee to execute, acknowledge, and deliver to the Company such instruments of
transfer, assignment and assumption and such other certificates, representations and documents, and
to perform all such other acts which the remaining Members may deem necessary or desirable to (i)
constitute such purchaser, transferee, or assignee as such; (ii) confirm that the person desiring to
acquire an interest or interests in the Company, or to be admitted as a Substituted Member, has
accepted, assumed and agreed to be subject and bound by all of the terms, obligations and
conditions of the Operating Agreement, as the same may have been further amended; (iii) preserve
the Company after the completion of such sale, transfer, or assignment under the laws of each
jurisdiction in which the Company is qualified, organized or does business; (iv) maintain the status
of the Company as an association not taxable as a corporation under the then applicable provisions
of the Code; and (v) assure compliance with any applicable state and federal securities laws and
regulations. Without limiting the generality of the foregoing, the effectiveness of any sale, transfer,
or assignment by a Member may be conditioned, in the discretion of the Managers, upon receipt by
the Company of: (A) an opinion of counsel satisfactory to the Managers (both as to opinion and
counsel), the cost of which shall be borne by the transferor, to the effect that such transfer will be
exempt from registration under the Securities Act of 1933, as amended, and any applicable state
securities laws, and (B) any other documentation determined by the Managers to be necessary or
advisable in order to assure that such transfer will not violate applicable securities laws. In addition,
without violating the generality of the foregoing, the Managers may prohibit any transfer by a
Member if such transfer would result in the "termination" of the Company pursuant to § 708 of the
Code.
10.7 Effective Date of Transfer. Any sale, transfer, or assignment of a Membership
interest in the Company or subscription of a Member made in compliance with this Article 10 shall
be deemed effective as of the last day of the calendar month in which the remaining Members'
consent thereto was given.
20
10.8 Covenants of Selling Member. The Selling Member agrees, upon request of the
remaining Members, to execute such certificates or other documents and perform such other acts as
may be reasonably requested by the remaining Members from time to time in connection with such
sale, transfer, assignment, or substitution. The Selling Member hereby indemnifies the Company
and the remaining Members against any and all loss, damage, or expense (including, without
limitation, tax liabilities or loss of tax benefits) arising directly or indirectly as a result of any
transfer or purported transfer in violation of this Article 10.
10.9 Other Restrictions and Limitations on Transfer.
(a) In the event that, as a consequence of a sale, transfer, or assignment of all or
a portion of a Member's Membership interest, two or more persons or entities (at least one of whom
is not a Member) hold interests in such Membership interest, such sale, transfer, or assignment shall
be void as against the Company, its Managers, and its Members unless and until all of the persons
and entities holding an interest in such Membership interest designate in writing to the Managers
one among them as their representative for purposes of receiving and giving all notices or other
communications provided for herein and all dealings with the Company and its Members.
(b) No sale, transfer, or assignment of a Member's entire interest shall be made
unless the purchaser, transferee, or assignee concurrently acquires all indebtedness of the Company
to the Member.
ARTICLE 11
ADDITIONAL MEMBERS
From the date of the formation of the Company, any Person or Entity acceptable to seventy-
five percent (75%) in Interest of the Members by their vote thereof may become a Member in this
Company by the sale of new Membership Interests for such consideration as the Members by their
unanimous votes shall determine, or as a transferee of a Member's Interest or any portion thereof,
subject to the terms and conditions of this Operating Agreement. The Managers may, at their
option, at the time an Additional Member is admitted, close the Company books (as though the
Company's tax year had ended) or make pro rata allocations of loss, income and expense deductions
as to an Additional Member for that portion of the Company's tax year in which an Additional
Member was admitted in accordance with the provisions of § 706(d) of the Code and the
Regulations promulgated thereunder.
ARTICLE 12
DISSOCIATION OF A MEMBER
12.1 Dissociation. A Person shall cease to be a Member upon the happening of any of the
following events:
21
(a) The delivery by the Member to all other Members of his resignation from the
Company;
(b) The bankruptcy of a Member;
(c) In the case of a Member who is a natural person, the death of a Member or
the entry of an order by a court of competent jurisdiction adjudicating the Member
incompetent;
(d) In the case of a Member who is acting as a Member by virtue of being a
trustee of a trust, the termination of the trust (but not merely the substitution of a new
trustee);
(e) In the case of a Member that is a separate entity other than a corporation, the
dissolution and commencement of winding up of the separate entity;
(0 In the case of a Member that is a corporation, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its charter; or
(g) In the case of an estate, the distribution by the fiduciary of the estate's entire
interest in the Company.
12.2 Covenant Not to Dissociate. Each of the Members hereby covenants and agrees that
it shall not voluntarily taken any action which would cause him to cease to become a Member under
the provisions of Section 12.1 without the prior approval of other Members holding a majority of
the votes held by such other Members. If a Member breaches this covenant he shall be liable to the
Company for any damages caused by such breach, which may be offset against the amount
otherwise distributable to such Member under this Agreement.
12.3 Status of a Dissociating Member. In the event any Member ceases to be a Member
by virtue of the provisions of Section 12.1, such Member shall have no right to participate in the
management of the business or affairs of the Company and shall be entitled to receive only the share
of profits and distributions to which such Member would have been entitled had such Member not
resigned or withdrawn.
ARTICLE 13
DISSOLUTION AND TERMINATION
13.1 Dissolution. The Company shall be dissolved upon the unanimous written
agreement of Members holding at least seventy-five percent (75%) of the Interests.
13.2 Cessation of Business. Upon the written agreement of the Members satisfying the
requirement of Section 13.1, the Company shall cease to carry on its business, except insofar as may
be necessary for the winding up of its business, but its separate existence shall continue until a
22
certificate of dissolution has been issued by the Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
13.3 Winding Up, Liquidation and Distribution of Property. Upon dissolution, the
Managers shall immediately proceed to wind up the affairs of the Company and distribute the
Property in the following manner:
(a) The Managers shall (i) sell or otherwise liquidate all of the Property as
promptly as practicable (except to the extent the Managers may determine to distribute any items of
Property to the Members in kind), (ii) allocate any profit or loss resulting from such sales to the
Members' Capital Accounts, (iii) discharge all liabilities of the Company (other than liabilities to
Members), including all costs relating to the dissolution, winding up, and liquidation and
distribution of assets, (iv) establish such reserves as may be reasonably necessary to provide for
contingent and unknown liabilities of the Company (for purposes of determining the Capital
Accounts of the Members, the amounts of such reserves shall be deemed to be an expense of the
Company, (v) discharge any liabilities of the Company to the Members other than on account of
their interests in Company capital or profits, and (vi) distribute the remaining assets in the following
order:
(I) If items of Property are to be distributed in kind, the net
fair market value of items as of the date of dissolution shall be determined by
independent appraisal or by agreement of the Members. Such items shall be deemed
to have been sold as of the date of dissolution for their fair market value, and the
Capital Accounts of the Members shall be adjusted to reflect such deemed sale.
(II) The positive balance of each Member's Capital Account as
determined after taking into account all Capital Account adjustments for the
Company's Fiscal Year during which the liquidation occurs, and the adjustments
described in Section 13.3(a)(1) above, shall be distributed to the Members, either in
cash or in kind, as determined by the Managers, with any items of Property
distributed in kind being valued for this purpose at their fair market value as
determined pursuant to Section 13.3(b)(1). Any such distributions to the Members
in respect of their Capital Accounts shall be made in accordance with the time
requirements set forth in § 1.704-1(b)(2)(ii)(b)(2) of the Regulations.
(b) The Managers shall comply with any applicable requirements of law
pertaining to the winding up of the affairs of the Company and the final distribution of its assets.
(c) Upon completion of the winding up, liquidation and distribution of the
assets, the Company shall be deemed terminated.
13.4 Articles of Dissolution. When all debts, liabilities and obligations have been paid
and discharged or adequate provisions have been made therefor and all of the Property has been
distributed to the Members, articles of dissolution containing the information required by the Act
23
shall be executed in duplicate, verified by the person signing the articles, and filed in duplicate with
the Colorado Secretary of State. The Manager shall have authority to distribute any Company
property discovered after dissolution, convey real estate and take such other action as may be
necessary on behalf of or in the name of the Company.
13.5 Return of Contribution Non -recourse to Other Members. Except as provided by
law, upon dissolution, each Member shall look solely to the assets of the Company for the return of
his Capital Contribution. If the Company property remaining after the payment or discharge of the
debts and liabilities of the Company is insufficient to return the cash or other property contribution
of one or more Members, such Member or Members shall have no recourse against any other
Member.
13.6 Deemed Distribution and Recontribution. Notwithstanding any other provisions of
this Article 14, in the event the Company is "liquidated" within the meaning of Regulations § 1.704-
1(b)(2)(ii)(g) but no Event of Dissolution has occurred, the assets of the Company shall not be sold,
the Company's liabilities shall not be paid or discharged, and the Company's affairs shall not be
wound up. Instead, solely for federal income tax purposes, the Company shall be deemed to have
distributed the Property in kind to Members, who shall be deemed to have assumed and taken
subject to all Company liabilities, all in accordance with their respective Capital Accounts.
Immediately thereafter, the Members shall be deemed to have recontributed the Property in kind to
the Company, which shall be deemed to have assumed and taken subject to all such liabilities.
ARTICLE 14
DISPUTE RESOLUTION
14.1 Procedure. Any controversy, claim, or dispute arising under this Agreement
("Controversy") shall be submitted to mediation before a mediator selected by a majority of the
Managers within thirty (30) days of written demand therefor by a Member before the aggrieved
Member may commence arbitration or litigation. Any mediator selected hereunder shall be
independent of any member, shall have not fewer than five (5) years of experience with
businesses similar in scope and nature to the business of the Company either as a business
owner, an attorney representing business owners, or a judge deciding issues affecting such
business owners. In the event an attempted mediated resolution of any Controversy is not
reached within forty-five (45) days of commencement of such efforts, then the parties may resort
to arbitration or litigation.
14.2 Awards. Any arbitration award and/or mediated agreement shall be final and
binding on all parties to the extent and in the manner provided by applicable state statute. All
awards may be filed with the clerk of one or more courts, state or federal, having jurisdiction
over the party against whom such award is rendered or his property, as a basis of judgment and
of the issuance of execution for its collection.
14.3 Governing Law. Venue shall be in Colorado and Colorado law shall govern.
24
14.4 Waiver of Right to Jury Trial. THE MEMBERS ACKNOWLEDGE THAT THE
RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE
WAIVED. EACH MEMBER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY
TO CONSULT) WITH COUNSEL OF HIS OR HER CHOICE, KNOWINGLY AND
VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL
BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS OPERATING AGREEMENT.
14.5 Legal Fees and Costs. The Members shall bear their own legal fees and costs
associated with the resolution of a dispute arising under this Article 14 provided, however, that,
accept in the case of a mediated resolution, the presiding arbitrator or judge shall award legal
fees and costs of the process to the prevailing party. A party shall be deemed to have prevailed
for purposes of this Section 14.5 if the matter is decided on a basis which is not materially
different from the last offer made by such party prior to commencement of the arbitration or
litigation.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 Notices. Any notice, demand, or communication required or permitted to be given
by any provision of this Operating Agreement shall be deemed to have been sufficiently given or
served for all purposes if delivered personally to the party or to an executive officer of the party to
whom the same is directed or, if sent by registered or certified mail, postage and charges prepaid,
addressed to the Member's and/or Company's address, as appropriate, which is set forth in this
Operating Agreement. Except as otherwise provided herein, any such notice shall be deemed to be
given three business days after the date on which the same was deposited in a regularly maintained
receptacle for the deposit of United States mail, addressed and sent as aforesaid.
15.2 Application of Colorado Law. This Operating Agreement, and the application and
interpretation hereof, shall be governed exclusively by its terms and by the laws of the State of
Colorado and specifically the Act.
15.3 Waiver of Action for Partition. Each Member irrevocably waives during the term of
the Company, any right that they may have to maintain any action for partition with respect to the
property of the Company.
15.4 Amendments. This Agreement may not be amended except by the unanimous
written agreement of all of the Members.
15.5 Execution of Additional Instruments. Each Member hereby agrees to execute such
other and further statements of interest and holdings, designations, powers of attorney and other
instruments necessary to comply with any laws, rules or regulations.
25
15.6 Construction. Whenever the singular number is used in this Agreement and when
required by the context, the sane shall include the plural, and the masculine general shall include
the feminine and neuter genders and vice versa; and the word "person" 0r "party" shall include a
corporation, firm, partnership, proprietorship or other form of association.
15.7 headings. The headings in this Agreement are inserted for convenience only and
are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this
Agreement or any provision, hereof.
15.8 waivers. The failure of any party to seek redress for violation of or to insist upon
the strict performance of .any covenant or condition of this Agreement shall not prevent a
subsequent act, which would have originally constituted a violation, from having the effect of an
original violation.
15.9 Fights and Remedies Cumulative. The rights and remedies provided by this
Agreement are currnulative and the use of any one right or remedy by any party shall not preclude or
waive the right to use any or all other remedies. Said rights and remedies are given in addition to
any other rights the parties may have by law, statute, ordinance or otherwise.
15.10 Severability. If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this
Operating Agreement and the application thereof shall not be affected and shall be enforceable to
the fullest extent permitted by law.
15.11 Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and
agreements herein contained shall be binding upon and inure to the benefit of the parties hereto, and
to the extent permitted by this Agreement, their respective heirs, legal representatives, successors
and assigns.
15.12. Creditors. None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditors of the Company.
1.5.13 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same instrument.
CERTIFICATE
The undersigned hereby agree, acknowledge, and certify that the foregoing Operating
Ageement constitutes the Operating. Agreement of 35321 ESTATE, LLC, a Colorado limited
liability company, and hereby set their hands as of the 28°x' day of October 2014.
aiRrzoir
Jennifer . ' owell
26
EXHIBIT A
TO OPERATING AGREEMENT
OF
35321 ESTATE, LLC
"Act" shall mean the Colorado Limited Liability Company Act, Colo. Rev. Stat. § 7-80-102,
et. seq.
"Adjusted Capital Account Deficit" means, with respect to any Member the deficit balance,
if any, in such Member's Capital Account as of the end of the relevant Fiscal Year, after giving
effect to the following adjustments:
(a) Credit to such Capital Account any amounts which such Member is
obligated to restore or is deemed to be obligated to restore pursuant to the penultimate sentences of
Regulations §§ 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit to such Capital Account the items described in §§ 1.704-
1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the
provisions of § 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
"Affiliate" means, with respect to any Person, (i) any Person directly or indirectly
controlling, controlled by, or under common control with such Person, (ii) any Person owning or
controlling ten percent (10%) or more of the outstanding voting interests of such Person, (iii) any
officer, director, or general partner of such Person, or (iv) any Person who is an officer, director,
general partner, trustee, or holder of ten percent (10%) or more of the voting interests of any Person
described in clauses (i) through (iii) of this sentence.
"Agreement" shall mean this Operating Agreement.
"Articles" means the Articles of Organization of the Company, as amended from time to
time.
"Business Day" means a day of the year on which banks are not required or authorized to
close in Greeley, Colorado.
"Capital Account" means, with respect to any Member, the capital account maintained for
such Person in accordance with the following provisions:
(a) To each Member's Capital Account there shall be credited such Member's
Capital Contributions, such Member's distributive share of Profits and any items in the nature of
income or gain which are specially allocated to such Member, and the amount of any Company
liabilities assumed by such Member or which are secured by any Company Property distributed to
such Member.
(b) To each Member's Capital Account there shall be debited the amount of cash
and the Gross Asset Value of any Company Property distributed to such Member pursuant to any
provision of this Agreement, such Member's distributive share of Losses and any items in the nature
of expenses or losses which are specially allocated to such Member, and the amount of any
liabilities of such Member assumed by the Company or which are secured by any property
contributed by such Member to the Company.
(c) In the event all or a portion of an interest in the Company is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the transferred interest.
(d) In determining the amount of any liability for purposes of subsections (a)
and (b) above, there shall be taken into account Code § 752(c) and any other applicable provisions
of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with the Regulations § 1.704-1(b), and
shall be interpreted and applied in a manner consistent with such Regulations. In the event the
Managers shall determine that it is prudent to modify the manner in which the Capital Accounts or
any debits or credits thereto (including, without limitation, debits or credits relating to liabilities that
are secured by contributed or distributed property or that are assumed by the Company or the
Members), are computed in order to comply with such Regulations, the Managers may make such
modification, provided that it is not likely to have a material effect on the amounts distributable to
any Member pursuant to Section 14 hereof upon the dissolution of the Company. The Managers
also shall (i) make any adjustments that are necessary or appropriate to maintain equality between
the Capital Accounts of the Members and the amount of Company capital reflected on the
Company's balance sheet, as computed for book purposes, in accordance with Regulations § 1.704-
1(b)(2)(iv)(g), and (ii) make any appropriate modifications in the event unanticipated events (for
example, the acquisition by the Company of oil or gas properties) might otherwise cause this
Agreement not to comply with Regulations § 1.704-1(b).
"Capital Contributions" means, with respect to any Member, the amount of money and the
initial Gross Asset Value of any property (other than money) contributed to the Company with
respect by such Member. The principal amount of a promissory note which is not readily traded on
an established securities market and which is contributed to the Company by the maker of the note
(or a Person related to the maker of the note within the meaning of Regulations § 1.704-
1(b)(2)(ii)(c)) shall not be included in the Capital Account of any Member until the Company
makes a taxable disposition of the note or until (and to the extent) principal payments are made on
the note, all in accordance with Regulations § 1.704-1(b)(2)(iv)(d)(2).
II
"Code" shall mean the Internal Revenue Code of 1986 or corresponding provisions of
subsequent superseding federal revenue laws.
"Company" shall refer to 35321 Estate, LLC, a Colorado limited liability company.
"Depreciation" means, for each Fiscal Year, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an asset for such Fiscal
Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which
bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted
tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at
the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Managers.
"Fiscal Year" means the Company's fiscal year, which shall be the calendar year.
"Gross Asset Value" means, with respect to any asset, the asset's adjusted basis for federal
income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Member to the
Company shall be the gross fair market value of such asset, as reasonably determined by the
contributing Member and the Managers, provided that, if the contributing Member is a Manager, the
determination of the fair market value of a contributed asset shall be determined by appraisal;
(b) The Gross Asset Values of all Company assets shall be adjusted to equal
their respective gross fair market values, as determined by the Managers as of the following times:
(a) the acquisition of an additional interest in the Company by any new or existing Member in
exchange for more than a de minimis Capital Contribution; (b) the distribution by the Company to a
Member of more than a de minimis amount of Company Property as consideration for an interest in
the Company; and (c) the liquidation of the Company within the meaning of Regulations § 1.704-
1(b)(2)(ii)(g); provided, however, that the adjustments pursuant to clauses (a) and (b) above, shall
be made only if the Managers reasonably determine that such adjustments are necessary or
appropriate to reflect the relative economic interest of the Members in the Company;
(c) The Gross Asset Value of any Company asset distributed to any Member
shall be adjusted to equal the gross fair market value of such asset on the date of distribution as
determined by the di stributee and the Managers, provided that, if the distributee is a Manager, the
determination of the fair market value of the distributed asset shall be determined by appraisal; and
(d) The Gross Asset Values of Company assets shall be increased (or decreased)
to reflect any adjustments to the adjusted basis of such assets pursuant to Code § 734(b) or Code §
743(b), but only to the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulation § 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset
III
Values shall not be adjusted pursuant to this subsection to the extent the Managers determine that an
adjustment pursuant to subsection to (b) above, is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this subsection.
If the Gross Asset Value of an asset has been determined or adjusted pursuant to subsection (a), (b),
or (c) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Profits and Losses.
"Interest" shall mean the relationship of a Member's interest in profits and losses under
Section 2.8 to the aggregate interest in profits and losses under Section 2.8 of all Members,
expressed as a percentage.
"Managers" shall mean all of the Managers of the Company appointed in this Agreement
and in accordance with the vote of Members after the date hereof in accordance with this
Agreement, or the Manager of the Company if there is only one Manager.
"Member" shall mean each of the parties who executes a counterpart of this Agreement as a
Member and each of the parties who may hereafter become Members of the Company. To the
extent a Manager is a Member, he will have all the rights of a Member with respect to such
Membership interest, and the term "Member" as used herein shall include a Manager to the extent
he is a Member.
"Person" means any individual, partnership, corporation, trust, or other entity.
"Profits" and "Losses" means, for each Fiscal Year, an amount equal to the Company's
taxable income or loss for such year or period, determined in accordance with Code § 703(a) (for
this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to
Code § 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
(a) Any income of the Company that is exempt from federal income tax and not
otherwise taken into account in computing Profits and Losses pursuant to this Section shall
be added to such taxable income or loss;
(b) Any expenditures of the Company described in Code § 705(a)(2)(B) or
treated as Code § 705(a)(2)(B) expenditures pursuant to Regulations § 1.704-1(b)(2)(iv)(i),
and not otherwise taken into account in computing Profits or Losses pursuant to this Section
shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Company asset is adjusted
pursuant to Section 1.14 (b) or (c), the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such asset for purposes of computing Profits
and Losses;
IV
(d) Gain or loss resulting from any disposition of Company Property with
respect to which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property differs from its Gross Asset
Value;
(e) In lieu of the depreciation, amortization, and other cost recovery deductions
taken into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such Fiscal Year or other period;
(0 To the extent an adjustment to the adjusted tax basis of any Company asset
pursuant to Code § 734(b) or Code § 743(b) is required pursuant to Regulations § 1.704-
1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Member's interest in the Company, the amount of
such adjustment shall be treated as an item of gain (if the adjustment increases the basis of
the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of
the asset and shall be taken into account for purposes of computing Profits or Losses;
(g) Notwithstanding any other provision of this Section, any items of income,
gain, loss or deduction which are specially allocated to a Member shall not be taken into
account in computing Profits or Losses.
The amounts of the items of Company income, gain, loss, or deduction available to be specially
allocated pursuant to Sections hereof shall be determined by applying rules analogous to those set
forth in subsections (a) through (f) above.
"Property" means all real and personal property acquired and operated by the Company, and
any improvements thereto, and shall include both tangible and intangible property.
"Pro Rata" shall mean in proportion to the Members' Interests.
"Regulations" means the Income Tax Regulations, including Temporary Regulations,
promulgated under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Section" when capitalized, shall mean a section of this Agreement, unless the context
otherwise requires.
V
EXHIBIT B
TO OPERATING AGREEMENT
OF
35321 Estate, LLC
Name
Address
Jennifer M. Powell P.O. Box 200242
Evans, Colorado 80620
Initial
Capital
Contribution
$1,000.00
Percentage
of
Interest
100%
+t+ Reactivate
+++
An Inveaner y Company
Use by Special Review Planning Questionnaire
RDC CO Weld County RS 72 II
RDC CO WELD COUNTY RS 72 II
Explain the proposed use and business name.
The RDC CO Weld County RS 72 II Community Solar Energy Facility (SEF) is a 5 MW
(26 acre) solar photovoltaic generation facility located on a segment of Parcel Number
080504400009, West of Eaton, Weld County, Colorado. The Project is being developed by
Reactivate CO Development LLC ("Reactivate"), which is a wholly owned subsidiary of
Reactivate Devco LLC. The Project is seeking a Use by Special Review ("USR") to permit
construction and operation of the project.
The design of the Community Solar Energy Facility complies with the general provisions
for use by special review outlined in "Weld County, Colorado, Charter and County Code -
Chapter 22 Comprehensive Plan" Adopted 1973 and updated in 2008. The installation and
operation will comply vvith all applicable local, state and national laws and regulations.
Explain the need for the proposed use.
The construction of a Solar Energy Facility(SEF) can generate local jobs and create a
long-term asset that produces energy at a competitive price, benefiting Weld County
residents.
Weld County, along with the rest of Colorado, is experiencing significant growth in
electricity consumption, necessitating increased electricity generation. Community solar
addresses this issue by offering ratepayers the option to choose locally generated
electricity. As the energy capital of Colorado, Weld County can enhance its role as an energy
leader by embracing solar power. Local solar projects diversify the county's energy mix,
leading to a more stable and resilient grid. By adopting additional solar energy, Weld
County can meet its growing energy needs and continue to play a pivotal role in Colorado's
energy landscape.
Describe the current and previous use of the land.
Parcel Number 080504400009 shows to have historically been used for agriculture
and is designated as grazing land. According to the landowner, in the last ten years the site
has occasionally been used for grazing and is not irrigated. According to the zoning map
provided by Weld County, the use has not changed and has continued to be zoned
3
Agricultural (A). The parcel is in a "Near -Urban Planning Area" according to Weld County
Code Appendix 21-B.
Describe the proximity of the proposed use to residences.
Within the 500 -foot radius of the proposed 26 -acre project there are 10 parcels
designated as residential or ag-use structures. The closest structures to the property are
adjacent to the east property line (Parcel 080504400008 and Parcel 080504400038), both
described as residential structures. See Exhibit A - Radius Map and Property Owner List
Describe the surrounding land uses of the site and how the proposed use is
compatible with them.
The Project will be contained within one parcel and will not encroach on any
surrounding properties. The SEF is compatible with surrounding land uses as many of the
surrounding properties are zoned Agricultural with five approved Use by Special Review
permits in the vicinity. Staying in line with Agricultural use, during operations there will be
extremely low traffic impact, lighting and noise levels.
Describe the hours and days of operation (i.e., Monday through Friday 8:00 a.m. to
5:00 p.m.).
During the Operation period, the Project will be operated and monitored 24 hours a
day, 7 days a week, almost entirely from a remote location, apart from periodic site visits for
routine preventative maintenance and inspections conducted by qualified Operations &
Maintenance (O&M) personnel.
Describe the number of employees including full-time, part-time and contractors. If
shift work is proposed, detail number of employees, schedule and duration of shifts. -
Moody
During the operation phase there will be no full or part-time active employees on
site. The site will be monitored remotely full-time.
During the construction phase, Reactivate will employ a combination of full-time
staff and specialized contractors for this solar installation project. Our workforce will
consist of skilled technicians, electricians, project managers, and support personnel. The
exact number of on -site workers will vary widely on any given day with a maximum of 85
workers depending on the project phase, system size, schedule, and contractor. We operate
on a single -shift schedule, with work hours typically from 7 AM to 5 PM, Monday through
Friday. Weekend work may occasionally be necessary to meet project deadlines or to
perform specific tasks that minimize disruption to the property's regular operations. The
number of the workforce size adjusting based on the phase of installation. We do not
anticipate the need for night shifts or extended hours beyond our standard schedule. Our
staffing approach ensures we have the right expertise on -site while maintaining efficiency
throughout the project lifecycle.
4
Describe the maximum number of users, patrons, members, buyers or other visitors
that the site will accommodate at any one time.
The facility will have no full or part-time on -site users, patrons, members, buyers, or
other visitors. Maintenance may be present as required during operations.
List the types and maximum numbers of animals to be on the site at any one time (for
dairies, livestock, confinement operations, kennels, etc.).
Reactivate does not anticipate animals to be kept on site but is evaluating potential
partnerships with local agrivoltaics and grazing opportunities.
List the types and number of operating and processing equipment.
The Community Solar Energy Facility depicted in Exhibit B will consist of the following:
• A fenced 26 acre (approximately) project area.
• Proposed access road
• Utility Point of Interconnection at approximate latitude/longitude coordinates:
40.51013664549447, -104.7759106048787
• Approximately 11,000 solar panels & 33 inverters.
• Ancillary pad -mounted equipment including but not limited to switchgears, transformers,
inverters, etc.
List the types, number and uses of the existing and proposed structures.
Currently on site the only structure is an oil well. Ther are no other structures on
site. The proposed structures on site are Solar panels supported by piles and pad mounted
electrical equipment to operate the facility.
Describe the size of any stockpile, storage or waste areas.
During operations no stockpiles, storage or waste area will be on site. Any materials
for construction will be staged and contained within the site boundaries.
Describe the method and time schedule of removal or disposal of debris, junk and
other wastes associated with the proposed use.
Reactivate will manage waste responsibly throughout the solar installation process.
Construction debris, junk, and other waste will be collected daily; we'll use appropriate
containers to store waste safely. Removal will occur as needed to prevent accumulation.
Upon project completion, we'll conduct a thorough site cleanup. This waste management
approach will be implemented for the duration of construction, concluding with a final site
inspection to ensure all waste has been properly removed and disposed of.
Include a timetable showing the periods of time required for the construction of the
operation.
5
Pending USR approval from Weld County and final interconnection approval from
Xcel Energy, Reactivate CO Development LLC anticipated to begin construction in Q3, 2025.
The entire construction period is typically 9 -12 months. The operation lifetime of the
Project is 35 years to 45 years.
Construction
Phase
Q3 2025
to Q3 2026
Interconnection/
Facilities
construction
Q4 2025
Startup
and
commissioning
Q1
2026
Project closeout
and
Documentation
Q2 2026
to Q3 2026
Describe the proposed and existing lot surface type and the square footage of each
type (i.e. asphalt, gravel, landscaping, dirt, grass, buildings).
All lot surface types within the project area (26 acres) are native grasses and alfalfa
for grazing. No structures are within the project boundaries.
How many parking spaces are proposed? How many handicap -accessible parking
spaces are proposed?
No parking spaces are being proposed for the project as there will be no need for
parking beyond construction activities. Any maintenance vehicles will be able to use the
gravel that is part of the SEF yard for parking.
Describe the existing and proposed fencing and screening for the site including all
parking and outdoor storage areas.
Any existing fencing that is impacted by construction and no longer necessary is
expected to be minimal. If impacted, it will be removed in coordination with landowner.
Fencing shall be placed around the perimeter and shall be 6' feet tall chain link fence
with 1' foot barb wire or 7' feet deer fence as directed by Reactivate depending on the risk
of deer entrapment. Fencing shall be set at least 5' away from any drainage conveyance
ditches and shall not cross or block drainage conveyances. If drainage ditch crosses are
unavoidable, a storm drainage pipe shall be placed at the fence crossing location. Fencing
shall be a minimum of 10' feet from any roadway and 20' feet from all solar equipment,
unless otherwise mutually determined by Weld County and Reactivate.
Describe the existing and proposed landscaping for the site.
The existing vegetation will be stripped and cleared in preparation for the solar
construction farm. This can include trees, plants, rocks, brush, stumps, and anything of
obstruction prior to construction.
6
Reactivate will have plans for vegetation management including a seed mix, planting
requirements, and schedule to stabilize the site in accordance with local or state ordinance
requirements.
Reactivate understands any residences or residential lot lines within 500 feet of the
project boundary may need additional planning and will work with the county on such
plans.
Describe reclamation procedures to be employed as stages of the operation are
phased out or upon cessation of the Use by Special Review activity.
Reactivate has a standard Decommissioning Plan that addresses the requirements of
Weld County Charter and County Code Sec. 23-4-1030. - Solar energy facility (B)(4). This plan
is in place to ensure proper reclamation upon cessation of operations.
Describe the proposed fire protection measures.
According to the local Weld County fire district maps, the property is in the
Eaton Fire Protection District. Perimeter access is provided around the project site that
should allow proper access for fire apparatus during an emergency. Overgrowth will be
properly maintained with consideration to spread of wildfires. Reactivate will work
closely with the district to ensure proper fire protection measures are taken.
Explain how this proposal is consistent with the Weld County Comprehensive Plan
per Chapter 22 of the Weld County Code.
Reactivates proposal for the community solar facility located in Weld County is
consistent with chapter 22 of the Weld County Code as it aligns with many of the goals and
objectives such as the natural resource goals and objectives. The proposal will minimize its
impact on surrounding land and the existing surrounding land uses while preserving vistas
with its low -profile structures.
The community solar facility would only reserve 26 acres of the 43 acre parcel for
energy development. The facility would have no known limiting site factors as they relate to
wetlands and critical habitats.
All adjacent areas to the project site would remain unaffected and not impede land
uses outside of the project area.
Explain how this proposal is consistent with the intent of the zone district in which it
is located. (Intent statements can be found at the beginning of each zone district
section in Article III of Chapter 23 of the Weld County Code.)
Per Article III of Chapter 23 of the Weld County Code, agriculture in the County is
considered a valuable resource. The A (Agricultural) Zone District is intended to provide
7
areas for the conduct of agricultural activities and activities related to agriculture and
agricultural production, and for areas for natural resource extraction and energy
development without the interference of other, incompatible land uses.
The intent of the "Agricultural" Zone District explicitly includes "natural
resource extraction" and "energy development." With the proposed site in an Ag (A) zoned
location, the applicant's intent is to submit for a Use by Special Review permit. This process
allows for evaluation by County staff, board, and commissions. SEFs do not permanently
occupy or contaminate the land, allowing landowners to revert to agricultural uses after
the 35-45 year SEF lifecycle if they choose.
Explain how this proposal will be compatible with future development of the
surrounding area or adopted master plans of affected municipalities.
The project area does not fall into any other master plans and is only subject to
requirements for Weld County. Much of the surrounding area is currently agricultural and is
likely to remain so as Weld County is one of the most productive agricultural counties in the
United States. Solar development is highly compatible with surrounding farming, ranching,
and oil/gas activities, offering a viable alternative for land use. Solar energy can also serve
as a crucial power source for agricultural production in the region. Once the solar facility is
no longer economically viable, the land can easily be reverted to its original agricultural use.
Explain how this proposal impacts the protection of the health, safety and welfare of
the inhabitants of the neighborhood and the County.
The Project will be contained within one parcel and will not encroach on any
surrounding properties with the entire project meeting fencing requirements for Weld
County. The Project is compatible with surrounding land uses as many of the surrounding
properties have similar zoning with other USR's in the area. During operations there will be
extremely low traffic impact, lighting and noise levels. The burden to County resources
such as water, sewer, police, fire, schools, library and road maintenance are expected to be
extremely low and therefore would not inhibit the health, safety and welfare of the
inhabitants of the neighborhood and the County. The Project will not require any
permanent water or sewer infrastructure. The Project may also offer a renewable energy
choice and potential cost savings to residents and businesses.
Describe any irrigation features. If the proposed use is to be located in the A
(Agricultural) Zone District, explain your efforts to conserve prime agricultural land
in the locational decision for the proposed use.
This parcel has not been irrigated for more than 10 years; thus, no irrigation
features exist on the site. All irrigation wells have been capped and do not have functional
infrastructure. Thus, this site is not considered prime farmland.
8
Explain how this proposal complies with Article V and Article XI of Chapter 23 if the
proposal is located within any Overlay Zoning District (Airport, Geologic Hazard, or
Historic Townsites Overlay Districts) or a Special Flood Hazard Area identified by
maps officially adopted by the County.
The proposal is not located within any Overlay Zoning District or Special Flood
Hazard Areas.
Detail known State or Federal permits required for your proposed use(s) and the
status of each permit. Provide a copy of any application or permit.
At this time, the only other known permits are ministerial in nature including the
Access Permit, Building Permit, and stormwater permit. Reactivate understands additional
Weld county permitting may be required and will be discussed in pre -application meetings.
Prior to construction, Reactivate will work with Weld County on the Access, Building, and
any other required permits and Colorado Department of Public Health and Environment to
obtain a General Permit for Storm Water.
Exhibits
A. Radius Map and Property Owner List
B. Site Map
9
EXHIBIT A
Radius Map and Property Owner List
I- ■ 1I. I_I I_
I.
- -_ rem
5Q0 Foot adius
Prooerties 500 feet of projert .. ona;c-J
RAC CO Weld County RS 72 II
+++ +47+47+ Reactivate
+++
•s
fit!
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10'
LONG
MEADOW:
FARM
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2-7.' I Imagery 02024 Google
God -gam Terms of Use Map data. 02024 I Goggle l -°r iv ter_ y Policy 02024
Parcel Name
35321 Estate Llc - 23.63
Top Five Inc - 31.28
Nelson Michael L- 2.20
Ritzman Jeromie G - 10.31
35321 Estate Llc - 30.29
Baer Eunice A - 4.97
Merritt Lawrence J - 41.54
Letrbuck Llc - 17.54
Mcelwain Carol - 9.20
35321 Estate Llc - 44.49
APN/PIN
080504400021
080509100071
080504000035
080509100075
080504400022
080504400038
080509100076
080504400004
080504400008
080504400009
lot size (acre)
Street Address (Site Address) Latitude
23.63 35321 CR 31 WELD
31.28
2.2 14991 CR 72 WELD
10.31 14774 CR 72 WELD
30.29
4.97 14915 CR 72 WELD
41.54 14672 CR 72 WELD
17.54
9.2 35207 CR 31 WELD
44.49
40.51425806
40.50798497
40.51045715
40.50715632
40.5152656
40.51136024
40.50837861
40.51252978
40.51269214
40.51183528
Longitude
- 104.7777791
- 104.7752966
-104.774152
- 104.7785001
- 104.7819063
- 104.7745407
- 104.7809966
- 104.7822144
- 104.7748584
- 104.7785151
+++ +:+:+ +++
Reactivate
An Invenergy Company
Public Works/Development Review Questionnaire
1. Describe the access location and applicable use types (i.e., agricultural, residential,
commercial/industrial, and/or oil and gas) of all existing and proposed accesses to the
parcel. Include the approximate distance each access is (or will be if proposed) from an
intersecting county road. State that no existing access is present or that no new access is
proposed, if applicable.
Proposed access is located on the southeast corner of the project parcel. The access
comes from County Road 72 and is approximately 635 feet west of County Road 31. The access
is to be utilized for operations of a commercial solar energy facility. There are no existing access
points to the site, and this will be new access.
2. Describe any anticipated change(s) to an existing access, if applicable.
N/A
3. Describe in detail any existing or proposed access gate including its location.
Access gate detail (Sheet 3.0) and location (Sheet 2.0) are provided within the Draft USR
Map Sheet 3.0.
4. Describe the location of all existing accesses on adjacent parcels and on parcels located
on the opposite side of the road. Include the approximate distance each access is from an
intersecting county road.
On the south side of County Road 72, there are two access points that appear to access
private property. The most westerly access is approximately 1,700 feet west of County Road 31
and the second access is approximately 1,160 feet west of County Road 31. On the north side of
County Road 72, there is one access point to private property that is 100 feet west of County
Road 31.
5. Describe any difficulties seeing oncoming traffic from an existing access and any
anticipated difficulties seeing oncoming traffic from a proposed access.
County road 72 is flat with open lines of site. No speed limits were able to be found on
the road, but it is a dirt road that isn't planned for higher speeds. There should be no issues with
access lines of site.
6. Describe any horizontal curve (using terms like mild curve, sharp curve, reverse curve,
etc.) in the vicinity of an existing or proposed access.
N/A
7. Describe the topography (using terms like flat, slight hills, steep hills, etc.) of the road in
the vicinity of an existing or proposed access.
+++ Reactivate
An Invenergy Company
The road is predominantly flat and unpaved with little variation in topography.
♦♦♦ ♦.♦.+ Reactivate
#♦♦
An Invenergy Company
Use by Special Review
RDC CO Weld County RS 72 II
Environmental Health Questionnaire
1. Discuss the existing and proposed potable water source. If utilizing a drinking water
well, include either the well permit or well permit application that was submitted to
the State Division of Water Resources. If utilizing a public water tap, include a letter
from the Water District, a tap or meter number, or a copy of the water bill.
a. There is no plan to install a permanent water supply as this will be an unmanned
and automated facility during operations. However, during the construction phase,
the contractor will ensure that the work crew has access to safe drinking water to
meet their hydration needs throughout the duration of the project
2. Discuss the existing and proposed sewage disposal system. What type of sewage
disposal system is on the property? If utilizing an existing on -site wastewater treatment
system, provide the on -site wastewater treatment permit number. (If there is no on -site
wastewater treatment permit due to the age of the existing on -site wastewater
treatment system, apply for an on -site wastewater treatment permit through the
Department of Public Health and Environment prior to submitting this application.)
If a new on -site wastewater treatment system will be installed, please state "a new on -
site wastewater treatment system is proposed." (only propose portable toilets if the use
is consistent with the Department of Public Health and Environment's portable toilet
policy.)
a. No on -site sewer system is required for this facility. However, During the
construction phase, the contractor will provide a portable toilet for the
construction crew.
3. If storage or warehousing is proposed, what type of items will be stored?
a. Spare parts for operations & maintenance are stored on -site in a conex box.
4. Describe where and how storage and/or stockpile of wastes, chemicals, and/or
petroleum will occur on this site.
a. N/A - There will be no storage for any of the above for this project.
5. If there will be fuel storage on site, indicate the gallons and the secondary
containment. State the number of tanks and gallons per tank.
a. N/A- No fuel storage at this facility.
6. If there will be washing of vehicles or equipment on site, indicate how the wash water
will be contained.
a. No washing of vehicle or equipment will occur at this site. Entrance to site shall
be equipped with the required construction entrance to prevent sediment leaving
♦♦♦ ♦.♦.+ Reactivate
#♦♦
An lnvenergy Company
the site by way of construction traffic.
7. If there will be floor drains, indicate how the fluids will be contained.
a. N/A- there will be no floor drains at this facility.
8. Indicate if there will be any air emissions (e.g. painting, oil storage, etc.).
a. N/A- there will be no air emissions produced from this facility.
9. Provide a design and operations plan if applicable (e.g. composting, landfills, etc.).
a. N/A- there will be no composting or landfill at this location.
10. Provide a nuisance management plan if applicable (e.g. dairies, feedlots, etc.).
a. N/A- does not apply to this facility.
11. Additional information may be requested depending on type of land use requested.
Decommissioning Plan
RDC CO Weld County RS 72 II
Solar Project
Weld County, Colorado
Stantec
Prepared for:
Reactivate DevCo LLC
RDC CO Weld County RS 72 II LLC
One South Wacker Drive, Suite 1800
Chicago, IL 60606
Prepared by:
Stantec Consulting Services Inc.
1165 Scheuring Road
De Pere, Wisconsin 54115
Project No: 172000xxxx
September 18, 2024
DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
This document entitled Decommissioning Plan — RDC CO Weld County RS 72 II Solar Project, was
prepared by Stantec Consulting Services Inc. (Stantec) for the use of RDC CO Weld County RS 72 II LLC
and parent company Reactivate DevCo LLC (Reactivate; the Client). The material in this document reflects
Stantec's professional judgment in light of the scope, schedule and other limitations stated in the document
and in the contract between Stantec and the Client. The opinions in this document are based on conditions
and information existing at the time this document was published and do not take into account any
subsequent changes. In preparing this document, Stantec did not verify information supplied to it by others.
(signature)
Hannah Gilgus
Environmental Planner
&Ott Alodeslinvate
(signature)
Michael Gerhart, PE (TX)
Civil Engineer
tic
(s6nature)
at u re)
JoAnne J. Blank
Senior Associate, Senior Project Manager
ais Stantec
DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
Table of Contents
1.0 INTRODUCTION 1
1.1 SOLAR FARM COMPONENTS 1
1.2 TRIGGERING EVENTS AND EXPECTED LIFETIME OF PROJECT 1
1.3 DECOMMISSIONING SEQUENCE 2
2.0 PROJECT COMPONENTS AND DECOMMISSIONING ACTIVITIES 3
2.1 OVERVIEW OF SOLAR FACILITY SYSTEM 3
2.2 SOLAR MODULES 3
2.3 TRACKING SYSTEM AND SUPPORT 4
2.4 INVERTER/TRANSFORMER STATIONS 4
2.5 ELECTRICAL CABLING AND CONDUITS 4
2.6 PROJECT SUBSTATION AND ABOVE GROUND TRANSMISSION LINE 4
2.7 PERIMETER FENCING, SITE ACCESS AND INTERNAL ROADS 5
3.0 LAND USE AND ENVIRONMENT 6
3.1 LAND USE 6
3.2 RESTORATION AND R EV EG ETATI O N 6
3.3 SURFACE WATER DRAINAGE AND CONTROL 6
3.4 MAJOR EQUIPMENT REQUIRED FOR DECOMMISSIONING 6
4.0 DECOMMISSIONING COST ESTIMATE SUMMARY 7
4.1 DECOMMISSIONING EXPENSES 7
4.2 POTENTIAL DECOMMISSIONING REVENUES 7
4.3 DECOMMISSIONING COST SUMMARY AND FINANCIAL ASSURANCE 9
LIST OF TABLES
Table 1 Primary Components of Solar Farm to be Decommissioned 3
Table 2 - Typical Access Road Construction Material 5
Table 3 - Estimated Decommissioning Expenses 7
Table 4 - Estimated Decommissioning Revenues 8
Table 5 - Decommissioning Cost Summary 9
LIST OF FIGURES
Figure 1 Project Layout
ais Stantec
ii
DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
1.0 INTRODUCTION
RDC CO Weld County RS 72 II LLC (RDC CO Weld County RS 72 II) and parent company Reactivate
DevCo LLC (Reactivate) are proposing to construct the RDC CO Weld County RS 72 II Solar Project (the
"Project") in Weld County, Colorado. The Project area will occupy approximately 44.5 acres of land with
26.0 acres within the perimeter fencing. The Project will have a maximum nameplate generating capacity
of 4.95 megawatts (MW) alternating current (AC). Major components of the Project include bi-facial solar
modules, a tracking system, inverters, transformers, access roads, overhead electrical line, and switchgear
equipment.
This Decommissioning Plan (Plan) provides a description of the decommissioning and restoration phase of
the Project. Start -of -construction is anticipated for early 2025, with an anticipated Commercial Operation
Date (COD) in mid -2025. The decommissioning phase is assumed to include the removal of Project facilities
as listed in Section 1.1 and shown in Figure 1. This Plan includes an overview of the primary
decommissioning Project activities, including the dismantling and removal of facilities, and subsequent
restoration of land. A summary of estimated costs and revenues associated with decommissioning the
Project are included in Section 4.0. The summary statistics and estimates provided are based on a 4.95-
MWEAc] Project array design.
The Plan has been prepared in accordance with the Weld County, Colorado Charter and County Code
Section 23-4-1030 - Solar Energy Facility (County Code).
1.1 SOLAR FARM COMPONENTS
The main components of the Project include:
• Solar modules and associated above ground cabling
• Tracking system and steel piles
• Inverters and transformers
• Site access and internal roads
• Perimeter fencing
• Overhead electrical line
• Project switchgear
1.2 TRIGGERING EVENTS AND EXPECTED LIFETIME OF PROJECT
Project decommissioning may be triggered by events such as the end of a power purchase agreement or
when the Project reaches the end of its operational life. Per the County Code
"Decommissioning/reclamation shall commence within twelve (12) months after power production has
permanently ceased and be completed within twelve (12) months from the start date of
the decommissioning/reclamation work."
The expected lifetime of the Project is approximately 45 years (35 plus two optional five-year extensions).
Depending on market conditions and project viability, solar arrays may be retrofitted with updated
components (e.g., modules, tracking system, etc.) to extend the life of a project. In the event that the
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1
DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
modules are not retrofitted, or at the end of the Project's useful life, the modules and associated components
will be decommissioned and removed from the Project site.
The value of the individual components of the solar facility will vary with time. In general, the highest
component value would be expected at the time of construction with declining value over the life of the
Project. Over most of the life of the Project, components such as the solar modules could be sold in the
wholesale market for reuse or refurbishment. As efficiency and power production of the modules decrease
due to aging and/or weathering, the resale value will decline accordingly. Secondary markets for used solar
components include other utility scale solar facilities with similar designs that may require replacement
equipment due to damage or normal wear over time; or other buyers (e.g., developers, consumers) that
are willing to accept a slightly lower power output in return for a significantly lower price point when
compared to new equipment.
Components of the solar facility that have resale value may be sold in the wholesale market. Components
with no wholesale value will be salvaged and sold as scrap for recycling or disposed of at an approved
offsite licensed solid waste disposal facility (landfill). Decommissioning activities will include removal of the
arrays and associated components as listed in Section 1.1 and described in Section 2.
1.3 DECOMMISSIONING SEQUENCE
Per the County Code, decommissioning activities will commence within twelve (12) months after power
production has permanently ceased and be completed within twelve (12) months from the start date of
the decommissioning/reclamation work. Monitoring and site restoration may extend beyond this period to
ensure successful revegetation and rehabilitation. The anticipated sequence of decommissioning and
removal is described below; however, overlap of activities is expected.
• Install temporary fencing and erosion control best management practices (BMPs) to protect
sensitive resources and control erosion during the decommissioning activities.
• Reinforce access roads, if needed, and prepare site for component removal.
• De -energize solar arrays
• Dismantle and remove modules and above -ground wiring
• Remove tracking equipment
• Remove perimeter and internal fence
• Remove inverters, transformers and switchgear equipment, along with support piers, piles and
concrete pads
• Remove access roads and grade site (as required)
• Remove below -ground electrical cables and conduit to a depth of three feet
• Remove overhead electrical line, if decommissioned
• Grade site and de -compact subsoils as needed and stabilize disturbed land.
• Remove temporary BMPs
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
2.0 PROJECT COMPONENTS AND DECOMMISSIONING ACTIVITIES
Project components and decommissioning activities are further described within this section.
2.1 OVERVIEW OF SOLAR FACILITY SYSTEM
RDC CO Weld County RS 72 II anticipates utilizing approximately 11,000 solar modules, with a total
nameplate generating capacity of up to 5.94 MW direct current (DC) converting to approximately 4.95
MW{Ac] on the 26.0 acres of land within the perimeter fencing. Foundations, steel piles, electrical cabling
and conduit will be removed up to a depth of three feet beneath the surface.
Estimated quantities of materials to be removed and salvaged or disposed of are included in this section.
Most of the materials described have salvage value, although there are some components that will likely
have none at the time of decommissioning. Recyclable materials, salvaged and non -salvage, will be
recycled to the extent possible. Other non -recyclable waste materials will be disposed of in accordance
with state and federal law in a licensed solid waste facility. Table 1 presents a summary of the primary
components of the Project included in this decommissioning plan.
Table 1 Primary Components of Solar Farm to be Decommissioned
Component
Quantity
Unit
of
Measure
Solar
Modules
(approximate)
11,000
Each
Tracking
System
(100
-module
equivalent
tracker)
110
Tracker
Steel
Piles
1,562
Each
String
Inverters
33
Each
Transformers
3
Each
Concrete
Equipment
Pad
1
Each
Access and
internal
roads
575
Linear
Foot
(estimated)
Perimeter
Fencing
4,481
Linear
Foot
(estimated)
Overhead
Electrical
Line
0.25
Linear
Mile
Switchgear
Equipment
1
Each
2.2 SOLAR MODULES
Statistics and estimates provided in this Plan are based on the JA Solar (540 -watt) bi-facial module
manufactured by JA Solar Technology Co. The module assembly (with frame) has a total weight of
approximately 63.1 pounds. The modules are approximately 89.7 inches by 44.6 inches in size, and mainly
comprised of non-metallic materials such as silicon or mono -crystalline glass, plastic, and epoxies, with an
aluminum frame.
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
At the time of decommissioning, module components in working condition may be refurbished and sold in
a secondary market yielding greater revenue than selling as salvage material. The estimates in this report
have been calculated using a conservative approach, considering revenue from salvage only, rather than
resale of the modules.
2.3 TRACKING SYSTEM AND SUPPORT
The solar modules will be mounted on a one -in -portrait single axis tracking system, such as the Array
Technologies (ATI) tracking system. Each four -string tracker is expected to be approximately 380 feet in
length and will support approximately 100 solar modules. Smaller trackers may be employed at the edges
of the layout, to efficiently utilize available space. The tracking systems are mainly comprised of galvanized
and stainless steel; steel piles that support the system are comprised of structural steel.
The solar arrays will be deactivated from the surrounding electrical system and made safe for disassembly.
Tracker lubricants will be removed and properly disposed of or recycled according to regulations current at
the time of decommissioning. Electronic components, and internal electrical wiring will be removed and
salvaged. The steel piles will be completely removed.
The supports, tracking system, and piles contain salvageable materials which will be sold to provide
revenue to offset decommissioning costs.
2.4 STRING INVERTERS, TRANSFORMERS AND SWITCHGEAR
String inverters will be located within the array and will sit on piers with steel piles. The transformers and
switchgear will be located on a concrete equipment pad. The inverters, transformers, and switchgear will
be deactivated, disassembled, and removed. Depending on condition, the equipment may be sold for
refurbishment and re -use. If not re -used, they will be salvaged or disposed of at an approved solid waste
management facility. Oils and lubricants will be collected and recycled or disposed of at a licensed facility.
The piers and piles will be removed and salvaged, the concrete pad will be crushed and disposed of off -
site or recycled (reused off -site).
2.5 ELECTRICAL CABLING AND CONDUITS
The Project's underground electrical collection system will be placed at a depth of three feet (36 inches) or
deeper below ground surface. Underground cabling at greater than 36 inches in depth is allowed to remain
in place after decommissioning and, therefore, no removal cost has been assumed for the collection
cabling.
2.6 PROJECT ABOVE GROUND ELECTRICAL LINE
The Project will include an approximately 1,325 -foot -long (0.25 -mile) overhead electrical line from the
equipment pad to the point of interconnection. Unless an alternate use for the electrical line is determined,
the line and associated structures will be removed, and the land restored to pre -construction conditions to
the extent practicable.
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
2.7 PERIMETER FENCING, SITE ACCESS AND INTERNAL ROADS
The Project will include a six -foot -high chain link fence surrounding the perimeter of the array site. The
quantity of fence will be approximately 4,481 feet (0.85 mile) in length. Near the end of the decommissioning
process, all fence, poles, and foundations will be removed from the site.
An access road will provide direct access to the solar facility. The internal access roads will be
approximately 16 feet wide and be comprised of a ten -inch -thick gravel layer placed on a non -woven
geotextile fabric. To be conservative, the decommissioning plan assumes that the internal access road will
be completely removed. The estimated quantity of the material is provided in Table 2.
Table 2 - Typical Access Road Construction Material
Item
Quantity
Unit
Aggregate
(10
-inch
deep)
284
Cubic
Yards
Geotextile
1,022
Square
Yards
Decommissioning activities include the removal and stockpiling of aggregate materials onsite for salvage
preparation. Underlying non -woven geotextile fabric will also be removed during the decommissioning
process. Fabric that is easily separated from the aggregate during excavation will be disposed of in an
approved solid waste disposal facility. Fabric that remains with the aggregate will be sorted out at the
processing site and properly disposed of. Following the removal of aggregate and non -woven geotextile
fabric, the access road areas will be graded, de -compacted with deep ripper or chisel plow (ripped to 18
inches), backfilled with native subsoil and topsoil, as needed, and land contours restored as near as
practicable to preconstruction conditions.
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
3.0 LAND USE AND ENVIRONMENT
3.1 LAND USE
The Project site is predominantly flat and located on land utilized for agricultural purposes. The Project area
will be restored to allow for a substantially similar land use as was present prior to commencement of
construction.
3.2 RESTORATION AND REVEGETATION
Portions of the Project site that have been excavated and backfilled will be graded and de -compacted, as
necessary, to allow a land use similar to that prior to construction of the Project. Topsoil will be placed on
disturbed areas, as needed, and stabilized prior to returning the site to the landowner.
3.3 SURFACE WATER DRAINAGE AND CONTROL
Surface water conditions at the Project site will be reassessed prior to the decommissioning phase. RDC
CO Weld County RS 72 II will obtain the required water quality permits from the Colorado Department of
Public Health & Environment (CDPHE) and the U.S. Army Corps of Engineers (USAGE), as needed, prior
to decommissioning the Project. Required construction stormwater permits will also be obtained, and a
Stormwater Pollution Prevention Plan (SWPPP) prepared describing the protection needed to reflect
conditions present at the time of decommissioning. Best management practices may include construction
entrance improvements, temporary seeding, mulching (in non-agricultural areas), erosion control matting,
silt fence, filter berms, and filter socks.
3.4 MAJOR EQUIPMENT REQUIRED FOR DECOMMISSIONING
The activities involved in decommissioning the Project include removal of the Project components: solar
modules, tracking system, foundations and piles, inverters, transformers, electrical cabling and conduits,
switchgear equipment, and overhead electrical lines above ground and to a depth of three (3) feet.
Restoration activities include back -filling of pile and foundation sites; de -compaction of subsoils; and
grading of surfaces per the landowner lease agreement of the disturbed areas.
Equipment required for the decommissioning activities is similar to what is needed to construct the solar
facility and may include, but is not limited to: small cranes, low ground pressure (LGP) track mounted
excavators, backhoes, LGP track bulldozers and dump trucks, front-end loaders, deep rippers, water trucks,
disc plows and tractors to restore subgrade conditions, and ancillary equipment. Standard dump trucks may
be used to transport material removed from the site to disposal facilities and to import clean fill and topsoil
if necessary.
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
4.0 DECOMMISSIONING COST ESTIMATE SUMMARY
Expenses associated with decommissioning the Project will be dependent on labor costs at the time of
decommissioning. For the purposes of this report, approximate 2024 market values were used to estimate
labor expenses. Fluctuation and inflation of the labor costs were not factored into the estimates.
4.1 DECOMMISSIONING EXPENSES
During decommissioning, the Project will incur costs associated with disposal of components not sold for
salvage, including materials which will be disposed of at a licensed facility, as required. Decommissioning
costs also include backfilling, grading, and restoration of the proposed Project site as described in
Sections 2 and 3. Table 3 summarizes the estimated costs for activities associated with the major
components of the Project.
Table 3 - Estimated Decommissioning Expenses
Activity
Unit
Number
Cost
per Unit
Total
Overhead
estimated
and
permitting
management
required)
(includes
Lump
Sum
1
$28,000
$28,000
Solar
modules;
disassembly
and
removal
Each
11,000
$5.75
$63,250
Tracking
system
disassembly
and
removal
Each
110
$885
$97,350
Steel
pile/post
removal
Each
1,562
$14.00
$21,868
String
equipment
inverters,
pad
removal
transformers,
switchgear
and
Lump
Sum
1
$42,575
$42,575
Access road
excavation
and
removal
Lump
Sum
1
$3,700
$3,700
Perimeter
fence removal
Lineal
Foot
4,481
$5.90
$26,438
Topsoil
replacement
and
rehabilitation
of
site
Lump
Sum
1
$13,600
$13,600
Generation
tie-in electrical
line (overhead)
Linear
Mile
0.25
$35,000
$8,750
Total
Estimated
Decommissioning Cost
$305,531
4.2 POTENTIAL DECOMMISSIONING REVENUES
A summary of potential revenue to be realized from resale or salvage of the facilities is included in this
report. As previously described, the value of the decommissioned components will be higher in the early
stages of the Project and decline over time. Resale of components such as solar modules is expected to
be greater than salvage (i.e., scrap) value for most of the life of the Project, as described below. For
purposes of this report, only estimated salvage values were considered in net revenue calculations, as this
is the more conservative estimate strategy.
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
Modules and other solar facility components may be sold within a secondary market for re -use. A current
sampling of reused solar modules indicates a wide range of pricing depending on age and condition ($0.10
to $0.30 per watt). Future pricing of solar modules is difficult to predict at this time, due to the relatively
young age of the market, changes to solar panel technology, and the ever-increasing product demand. A
conservative estimation of the value of solar modules at $0.10 per watt would yield approximately $594,000.
Increased costs of removal, for resale versus salvage, would be expected in order to preserve the integrity
of the modules; however, the net revenue would be substantially higher than the estimated salvage value.
The resale value of components such as trackers, may decline more quickly; however, the salvage value
of the steel that makes up a large portion of the tracker is expected to stay at or above the value used in
this report.
The market value of steel and other materials fluctuates daily and has varied widely over the past five years.
Salvage value estimates were based on an approximate five -year -average price of steel and copper derived
from sources including on-line recycling companies and United States Geological Survey (USGS)
commodity summaries. The price used to value the steel used in this report is $254 per metric ton; aluminum
at $0.40 per pound; silicon at $0.40 per pound and glass at $0.05 per pound.
The main material of the tracking system and piles is assumed to be salvageable steel. The main
components of the solar modules are glass and silicon with aluminum framing. A 50 percent recovery rate
was assumed for all module components, due to the processing required to separate the module
components. Alternative and more efficient methods of recycling solar modules are anticipated before this
Project is decommissioned, given the large number of solar facilities that are currently being developed.
Table 4 summarizes the potential salvage value for the solar array components and construction materials.
Table 4 - Estimated Decommissioning Revenues
Item
Measurement
Unit
of
Quantity
per Unit
Salvage
Price
per
Unit
Total
Salvage
Price
Item
per
Number
of
Items
Total
Modules
Silicon
Pounds
Module
per
1.6
$0.40
$0.64
11,000
$7,040
—
Modules
Pounds
Module
per
2.5
$0.40
$1.00
11,000
$11,000
—Aluminum
Modules
Glass
Pounds
Module
per
23.6
$0.05
$1.18
11,000
$12,980
—
Tracking
Posts
System and
Metric
MW[DC]
tons
per
32.0
$254
$8,128
5.94
$48,280
Total
Potential
Revenue from Salvage
$79,300
* Revenue based on salvage value only. Revenue from used modules at $0.10 per watt could raise $594,000 as
resale versus the estimated salvage revenue.
I) Stantec
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DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
4.3 DECOMMISSIONING COST SUMMARY AND FINANCIAL ASSURANCE
Table 5 provides a summary of the estimated net cost to decommission the Project, using the information
detailed in Section 4.1 and 4.2. Estimates are based on 2024 prices, with no market fluctuations or inflation
considered.
Table 5 - Decommissioning Cost Summary
Item
Cost
Gross
consideration
Decommissioning
of
revenue
Expenses
from
salvage
(prior
9)
to
$305,531
Total
Potential
Revenue from
Salvage
$79,300
Net
revenue
Decommissioning
from salvage)
Cost
(with
consideration
of
$226,231
In compliance with the Weld County Code, RDC CO Weld County RS 72 II is providing this
decommissioning/reclamation cost estimate. The estimate will be updated every five (5) years from the
establishment and submittal of the financial security (Security).
RDC CO Weld County RS 72 II has indicated that prior to construction, an irrevocable standby letter of
credit, bond, or alternate form of Security in the amount of $226,231 will be provided to Weld County. The
Security will be in a form acceptable to both RDC CO Weld County RS 72 II and Weld County.
I) Stantec
9
DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
FIGURES
5 Stantec
DECOMMISSIONING PLAN
RDC CO WELD COUNTY RS 72 II SOLAR PROJECT, WELD COUNTY, COLORADO
Figure 1 Project Layout
Proposed Electrical Equipment
Pad. Subject to change.
RDC CO Weld
County RS 72 II
Weld County, Colorado
PLANT SUMMARY
DC NAMEPLATE CAPACITY :5.94MWOC
AC NAtil EPLATE CAPACITY: 4.35 PAW -AC
DC TO AC RAT IO:1.20
MODULE QUANTITY:11,000
MODULE SPECIFICATION: }Ahl72330-S40/MR OR SIMILAR
STRING STRENGTH: 25 MODULES PER STRING
NUMBER 9F STRINGS: 440
INVERTER QUANTITY. 33
INVERTER MODEL AND SPECIFICATION SUNNY HIGHPOWER
PEAK3 LSO -US OR SIM ILM .600V -AC OUTPUT.3-Pha'a (N)I.
INVERTER C F TFICATION: UL liMD9, UL 1998, IEEE 1547AL
1741
SITE DETAILS
PROJECT NAME: Ft0C CO WELD COUNTY RS 72 II
SITE COOv9NDATES: 4051,-104.71
POINT O€ INTIEROINNECTION COORDINATES: 4051..-194.71
BU LA AREA: 2610 ACRES
NOTES
POINT OF INTERCONNECTION PER =EL ENERGY
STANDARDSFOR SECONDARY SERVICE INSTALLATION.
UTILITY PROVIDED MAIN SERVICE METER AT POINT OF
INTERCONNECTION WITH' l.ENERGY.CUS•TOMER-
PROVIDED ENCLOSURE.
YELLOW PLACARD WITH BLACK
Lt ItRINGSTATING 'PHOTOVOLTAIC SYSTEM
CONNECTED' PROVIDED BY CUSTOMER
UTILITY AC DISCOt4NECT-UTILITY ACCESSIBLE,
LOCI4ABLE,AND VIEWABLE. INSTALLED WTI OUT
UNBOLTING COVERS AND ACCESSIBILITY ENSURED
WITHOUT ASSLSTANC E FROM SITE PERSONNEL AS PER
XCEL'S `SAFETY, INTERFERENCE AND INTERCONNECTION
GUIDELINES FOR OOGEN ERATORS, SMALL POWER
PRODUCERS AND CUSTOMER -OWNED GENERATION`
SECTION 4,2.
EQUIPMENT SHALL BE LABELED PER NEC S9D AND ICE_
ENERGY REGULATIONS.
124.5 Champ' St
Denver, CO 80204
Ph: 1720} 6454554
Reactivate
Utepia �:dl
2045 W Grand Ave Ste B
PPM 52340
_Iftira ?s_Il rz4612
Project Nam
RDC CO Weld County
RS 72 II
Print Address
14991 Comet Road 72
OrkefeP, 0010641
Approved Revision: OD
Not for Construction
Drawing oescdpaan
AC Single Line
Diagram
Dale Issued
July 09, 2024
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Stormwater and Drainage Study Exception Narrative
1. The exception being requested for consideration.
a. Drainage requirements per Sec. 23-4-1030. Solar energy facilities are not subject to
these requirements because this project qualifies for an exception cited in Weld
County Code Sec. 8-11-45. — Exceptions. The site has A&B soils.
2. Any existing and proposed improvements to the property.
a. No existing improvements are located on the property
b. Proposed improvements on the property consist of a 26 acre, 5MW Community
Solar Energy Facility (SEF).
3. Where the water originates if it flows onto the property from an off -site source.
This site is characterized as being nearly level, with an average slope of less than 1°. There is
a small hill that is oriented north/south on the eastern third of the parcel. This hill has a
maximum slope of 3°. In evaluating the slope aspect of the property, water is unlikely to
originate from an off site source and flow across the site. In instances of extreme precipitation,
water could enter the property from an irrigation ditch on the western side of the parcel,
however a generally westerly slope aspect will limit flow.
4. Where the water flows as it leaves the property.
Given the sites generally flat characteristics, it is expected that water will only flow across
the property during extreme precipitation events. The dominant soil type on the parcel is a well
drained Entisols with a very low runoff classification. There is a band of well drained Mollisols
along the western irrigation ditch at the western property boundary with negligible runoff
classification. Thus, we expect that runoff from the property will be low, except in cases of
extreme precipitation that exceed the soil's capacity to store moisture. In these instances,
water is mostly likely to pond on the western half of the parcel, or flow into the irrigation ditch
on the western parcel edge.
5. The direction of flow across the property.
Except in cases of extreme precipitation, it is expected that the majority of precipitation on
the site will percolate and be stored in the soil. Where the capacity for soil moisture storage is
exceed, water will generally flow from east to west across the property, terminating in the
irrigation ditch on the western side of the property.
6. Previous drainage problems with the property, if any.
Reactivate is not aware of any previous drainage problems on the property.
7. The location of any irrigation facilities adjacent to or near the property.
Wells 04000625 and 0058967 located near the southwest corner of the parcel.
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8. Any additional information pertinent to the development.
Parcel is located in FEMA FIRM panel #1255E (via Melissa King - Floodplain Coordinator)
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Dust and Weed Mitigation Plan
To minimize dust and debris during the construction process, stormwater best
management practices will be implemented. The construction team is responsible for
managing dust control and will select the appropriate methods based on the specific site
and weather conditions:
1. Dust Mitigation
1.1 Construction Phase Dust Control:
- The site foreman will monitor dust control efforts regularly.
- Water spray will be applied as needed to unpaved areas during dry weather, taking
care not to over -apply and create mud.
- Vehicle tracking devices will be installed at truck exit drives, as per Weld County
requirements.
- Vehicles on site during construction will limit speeds to 15 mph or less to minimize
dust emissions.
1.2 Operational Phase Dust Control:
- Once construction is complete, the majority of the site will be revegetated,
significantly reducing dust potential.
- Any remaining unpaved areas used for maintenance access will be monitored and
treated with water spray as needed during dry conditions.
2. Weed Mitigation
The following describes general weed mitigation measures that will be taken during
construction and operations of the facility. A more detailed Weed Management Plan will
be developed as part of the final construction process.
2.1 Noxious Weed Management Program:
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- Regularinspectionswillbeconducted at the beginning, middle, and end of the
growing season to evaluate weed presence, degree of invasion, and treatment
effectiveness.
- Once project has been turned over to operations, the operations staff will have
further developed the weed management plan at that time and will ensure proper
implementation.
2.2 Weed Prevention Measures:
- Equipment will be thoroughly cleaned before entering the project area.
- Seed mixtures for revegetation will be certified weed -free.
- Any mulch materials used will be certified weed -free.
- Periodic inspections will identify and address new weed infestations promptly.
- Coordination with adjacent landowners on weed management efforts will be
pursued.
2.3 Integrated Weed Management (MN) Approach:
The following methods will be considered and implemented as appropriate:
a) Cultural Control:
- Prompt revegetation of disturbed areas with native or desirable plant species.
- Minimizing unnecessary disturbance through precise planning of construction and
other activities.
b) Mechanical Control:
- Methods such as mowing, pulling, disking, or plowing may be used where
effective.
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- Timing of mechanical control will be optimized to disrupt weed growth and seed
development.
c) Biological Control:
- Introduction of insects or other biological agents known to inhibit weed
reproduction may be considered.
- If used, biological control methods will be coordinated with the Colorado
Department of Agricultural Insectary.
d) Chemical Control:
- Appropriate herbicides will be applied by licensed applicators in accordance with
manufacturer labels and Colorado laws.
- Herbicide selection will consider environmental factors, non -target species
protection, and prevention of herbicide resistance.
2.4 Monitoring and Follow-up:
- Weed management efforts will be carried out over multiple growing seasons as
needed.
- Documentation of control efforts and their effectiveness will be maintained.
- The weed management plan will be modified as needed based on changing site
conditions and treatment results.
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Landscape and Screening Plan
All lot surface types within the project area (26 acres) are native grasses and alfalfa
for grazing. No structures are within the project boundaries and the project site is outside of the
required 500 foot setback from residential properties (no required landscape buffer).
Any existing fencing that is impacted by construction and no longer necessary is
expected to be minimal. If impacted, it will be removed in coordination with landowner.
Fencing shall be placed around the perimeter and shall be 6' feet tall chain link fence
with 1' foot barb wire or 7' feet deer fence as directed by Reactivate depending on the risk
of deer entrapment. Fencing shall be set at least 5' away from any drainage conveyance
ditches and shall not cross or block drainage conveyances. If drainage ditch crosses are
unavoidable, a storm drainage pipe shall be placed at the fence crossing location. Fencing
shall be a minimum of 10' feet from any roadway and 20' feet from all solar equipment,
unless otherwise mutually determined by Weld County and Reactivate.
Reactivate will implement a combination of the native seed mix for the entire project boundary
proposed below:
Recommended Seed Mixes
Recommended temporary and permanent seed mixes were developed with the Project site's elevation, hydrology, soils,
occurrence in Weld County, and known vendor availability.
Temporary Seed Mix
The recommended temporary seed mix (Table 1-1) includes species that are native and/or sterile, establish quickly, and
have root structures suitable for erosion control. The temporary seed mix shall be used on soil stockpiles and any area
that will not be disturbed for 60 days or more. Contractor shall follow PLS application rates outlined by the seed vendor.
Table 1-1. Temporary seed mix.
Growth
Scientific
Name
Common
Name
Cultivar
Grazing Value
Season
Habit
Mix
*Regreen
OR
Quickguard
NA
Bunchgrass
20
1
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Suchloe dactyloides
Buffalograss
Cody
High
Warm
Rhizomatous
20
Bouteloua gracilis
Blue
grama
Lovington or
Hachita
High
Warm
Bunchgrass
15
Distichlis spicata
Saltgrass
Colorado
Ecotype
Medium
Warm
Rhizomatous
15
Elymus
trachycaulus
Slender
wheatgrass
Pryor or San
Luis
High
Cool
Rhizomatous
15
Pleuraphis jamesii
James'
galleta
Viva
High
Warm
Rhizomatous
15
Total:
100
*Use either Regreen or Quickguard, both have the same cover crop function.
Permanent Seed Mix
The recommended permanent seed mix (Table 1-2) includes species with multiple life history traits (i.e., perennial vs
annual, grass vs forb) to increase biodiversity in the area. The height of plants at maturity was also considered and
limited to 2 feet to limit interference with solar array infrastructure. Contractor shall follow PLS application rates
outlined by the seed vendor.
Table 1-2. Permanent seed mix.
Scientific
Name
Common
Name
Cultivar
Grazing
Value
Life
History
Mix
*Regreen
Quickguard
OR
NA
Sterile
cover crop
10
Bouteloua curtipendula
Sideoats
grams
Niner
High
Native
perennial
grass
10
Bouteloua gracilis
Blue
grams
Lovington or
Hachita
High
Native
perennial
grass
10
Buchloe dactyloides
Buffalograss
Cody
High
Native
perennial
grass
10
Distichlis spicata
Clover
saltgrass
Colorado
Ecotype
Medium
Native
perennial
grass
10
Elymus elymoides
Squirreltail
Pueblo
or Wapiti
Medium
Native
perennial
grass
10
Pleuraphis jamesii
James'
galleta
Viva
High
Native
perennial
grass
10
Achnatherum
hymenoides
Indian
ricegrass
Paloma,
Rimrock,
River
or White
High
Native
perennial
grass
10
Nordeum pusillum
Little
barley
Colorado
Ecotype
Low
Native
annual
grass
10
Artemisia
frigida
Prairie sagewort
Colorado
Ecotype
Medium
Native
perennial
forb
4
Vicia americana
American vetch
Colorado
Ecotype
Medium
Native
perennial
forb
2
Adenolinum
lewisii
Lewis
flax
Maple
Grove
NA
Native
perennial
forb
1
Erigeron eatonii
Eaton's
fleabane
Colorado
Ecotype
NA
Native
perennial
forb
1
Rudbeck la hirta
Black-eyed
susan
Colorado
Ecotype
Low
Native
biannual
forb
1
Sphaeralcea coccinea
Scarlett
globemallow
Colorado
Ecotype
Low
Native
perennial
forb
1
*Use either Regreen or Quickguard, both have the same cover crop function
2
4001-5000
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Noise Narrative
During operations there will be extremely low noise levels. The nearest occupied property
is approximately 500 feet from the project site. Noise levels of noise -emitting equipment
used during operations can be found below.
• Example: Three-phase pad -mounted compartmental type transformer noise profile
(Eaton Power Cooper Power Series)
Table 4. Audible Sound Levels
Self -Cooled, Two Winding k.VA Rating
N EMA TR-1 Average
Decibels (dB)
�a 8�
501-700
57
01-1009
58
1 001-1 500
1501-2000
60
61
2001-2500
62
2501-3000
63
64
65
9001-6000
66
6001-7500
67
7501-10000
68
**Note noise levels are measured at direct source of sound
• SUNNY HIGHPOWER PEAI<3 Inverter (**Note noise levels are measured at direct
source of sound)
o Audible noise emission (full power @ lm and 25°C) < 69 dB(A)
Construction activity over the course of the Project would include multiple sources
of noise pollution. Construction activity would occur over the construction schedule and
would comply with Weld County noise regulations. Noise pollution would vary throughout
construction due to different construction activities and equipment being used.
Generally, sound decreases in proportion with the square of the distance from its source.
Taking this into consideration, noise pollution levels should decrease by approximately 6.0
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dBA for every doubling of distance from the construction sites (U.S. Department of
Transportation 2017). Overall, noise pollution levels should be within the Weld County
ordinance limits during operations. Sound from a PV array is directly related to the intensity
of the solar insolation. More sunshine results in more sound from PV inverters and other
equipment, while less sunshine results in less sound. After sunset, no solar electricity will
be generated when no power is produced. The BESS would produce low levels of noise
beyond the limits of the Project area. Inverters and substation equipment would also
produce low noise levels after dark. An adequate buffer distance has been incorporated
into the Project design to minimize noise effects on adjacent land uses.
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Traffic Narrative
RDC CO Weld County RS 72 II
1. Describe how many roundtrips/day are expected for each vehicle type: Passenger
Cars/Pickups, Tandem
The construction phase of the Reactivate Dev Co Solar Project is expected to generate the
following vehicle tri
p
s:
• Material and Equipment Delivery (approximately 4 weeks):
- Maximum: 24 vehicle trips per day
- Average: 16 vehicle trips per day
- Vehicle types: Cone; container trucks, delivery trucks, and equipment hauling
trucks
- Estimated gross vehicle weight: 20,000 to 50,000 lbs
• Solar Facility Installation (4-6 months):
- Maximum: 28 vehicle trips per day
- Average: 20 vehicle trips per day
- Vehicle types: Passenger vehicles, fuel trucks, and material delivery trucks
- Estimated gross vehicle weight: 2,000 to 30,000 lbs
• Heavy Vehicle Traffic:
- Most heavy truck traffic will occur between 8:00 AM and 4:30 PM.
- Heavy vehicles will primarily be present during the material and equipment
delivery phases.
• Peak Hour Impacts:
-Project-related traffic is not expected to significantly impact AM and PM peak
traffic periods.
2. Describe the expected travel routes or haul routes for site traffic.
All construction traffic will travel along Weld County Rd 72 and will be entering the site at
the provided construction entrance proposed on the southeast corner of the site.
#♦♦
#'♦•♦ Reactivate
#♦#
3. Describe the travel distribution along the routes
• Traffic Volume: The construction phase will temporarily increase local traffic, with a
maximum of 28 vehicle trips per day during the solar facility installation period.
• Road Conditions: Based on the anticipated vehicle types and weights, the project is not
expected to cause significant degradation or damage to local roads.
• Traffic Flow: The construction of the project should not negatively impact the overall
transportation pattern in the area.
• Road Improvements: No improvements to local or state roads are anticipated to be
required to accommodate the construction traffic.
• Peak Hour Traffic: Construction -related traffic is not expected to significantly impact AM
and PM peak traffic periods.
• Mitigation Measures:
Reactivate commits to implementing the following measures to minimize transportation
impacts during construction:
• Scheduling heavy truck deliveries outside of peak traffic hours when possible.
• Using designated travel routes to minimize impact on local traffic.
• Implementing a traffic management plan if required by local authorities.
• Conducting regular inspections of affected roadways and repairing any damage attributed
to project construction vehicles.
• Providing advance notice to local residents about periods of increased construction traffic.
4. Describe the time of day that you expect the highest traffic volumes
• 8:00 am thru 4:30 pm
Reference - Ordinance Requirements:
#♦♦
#'♦•♦ Reactivate
#♦#
An Inv :nergy Cornpany
Traffic !Narrative:
1. Diescribe how many roundtripsfday are expected for each vehicle type: PassengerCars/Pickups, Tandem
Trucks, Semi-Truck/Trailer/RV (Roundtrip = One (1) trip in and One (1) trip out of site)
2. Describe the expected travel routes or haul routes for site traffic.
Describe the travel distribution along the routes (e.g, 50% of traffic will come from the north,, 20% from the
south,, 0% from the east, etc.).
At Describe the time of day that you expect the !highest traffic volumes.
PublicWorks will review the Traffic Narrative and advise the applicant if more information or an engineered traffic
impact study is required.
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
Assignment and Assumption Agreement
This SIIGNM ENT AND ASSUMPTION AGREEMENT (this "Agreement") is entered into
8/2 9/2ULas of (the "Effective Date") by and among Reactivate CO Development
LLC, a Delaware limited liability company ("Assignor") and RDC CO Weld County RS 72 II LLC, a
Delaware limited liability company ("Assignee"). Assignor and Assignee are referred to collectively
herein as the "Parties."
WITNESSETH:
WHEREAS, Assignor is party to certain real property agreements entered into for the purpose
of securing certain real property rights (collectively the "Site Control Documents") for the
development of a renewable energy generation project. A list of said Site Control Documents is
attached as Exhibit A and a copy of each such Site Control Document is attached hereto in Exhibit B;
and
WHEREAS, Assignee is a special purpose entity organized for the purpose of developing the
Project; and
WHEREAS, the Parties mutually desire (a) that Assignor assign all of its right, title and interest
in, under and to each of the Site Control Documents to Assignee, and (b) that Assignee assume all of
Assignor's obligations under each of the Site Control Documents, all on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein the Parties
agree as follows:
1. Assignment and Assumption.
a. Effective as of the Effective Date, Assignor hereby assigns, transfers and sets over
unto Assignee all of Assignor's right, title and interest in, under and to each of the
Site Control Documents.
b. Assignee hereby accepts the foregoing assignment and hereby agrees to perform all
of the terms and conditions of each of the Site Control Documents to be performed
on the part of Assignor and assumes all of the liabilities and obligations of Assignor
under each of the Site Control Documents, arising or accruing on or after the
Effective Date, including, without limitation, liability for the payment of rent and
for the due performance of all the terms, covenants and conditions of the Assignor
pursuant to each of the Site Control Documents.
2. Indemnity.
a. Assignor shall indemnify and hold Assignee harmless from any claim, liability, cost
or expense (including without limitation reasonable attorneys' fees and costs)
arising out of any obligations or liability under each of the Site Control Documents
arising before the Effective Date hereof.
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
b. Assignee shall indemnify and hold Assignor harmless from any claim, liability, cost
or expense (including without limitation reasonable attorneys' fees and costs)
arising out of any obligations or liability under each of the Site Control Documents
arising on or after the Effective Date hereof.
3. Representations and Warranties. Assignor hereby represents and warrants to Assignee
(a) that it has full power and authority to assign its rights under the Site Control Documents to
Assignee, (b) that each of the Site Control Documents is in full force and effect and has not been
modified or amended in any manner whatsoever except as otherwise set forth in Exhibit A, and all
right, title and interest of Assignor in and to each of the Site Control Documents is free and clear of
any and all claims, liens and encumbrances.
4. Miscellaneous.
a. Headings. The section headings used herein are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement.
b. Governing law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado without regard to conflicts of law principles.
c. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one and
the same instrument.
d. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective transferees, successors and assigns. Assignor and
Assignee each agree to execute and deliver such other and further documents as
may be necessary to transfer, assign, convey and deliver the Site Control
Documents and to otherwise accomplish the purposes and intent of this Assignment.
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
The Parties have executed this Agreement as of the date first above written.
ASSIGNOR:
Reactivate CO Development LLC
" —DocuSigned by:
By:
Name: Utopia Hill
Title: Manager
Utopia. tkilL
C5EEE48C1F87480...
ASSIGNEE:
RDC CO Weld County RS 72 II LLC
culocuSigned by:
tri& tkil
By: a�K-E4G-1-P87180...
Name: Utopia Hill
Title: Manager
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
EXHIBIT A
Description of Site Control Documents
1. Solar and Storage Lease Agreement dated as of December 15, 2023 by and between
Reactivate CO Development LLC as Grantee and 35321 Estate, LLC as Owner encumbering
certain real property located in Weld County, Colorado.
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
EXHIBIT B
Copy of Site Control Documents
Attached.
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F `
SOLAR AND STORAGE EASEMENT AGREEMENT
Weld County, State of Colorado
TEi1S SOLAR AND STORAGE EASEMENT AGREEMENT (this "Agreement") is made, dated
and effective as of (the "Effective Date"), by and between 35321 Estate,
LLC, a Colorado limited liability company (together with its successors, assigns and heirs, comprising
"Owner"), and Reactivate CO Development LLC, a Delaware limited liability company (together with
its transferees, successors and assigns, "Grantee"), and in connection herewith, Owner and Grantee agree,
covenant and contract as set forth in this Agreement. Owner and Grantee are sometimes referred to in this
Agreement as a "Party" or collectively as the "Parties".
I . Solar and Storage Easement. For good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by Owner and Grantee, upon the terms and conditions set forth in this
Agreement, Owner hereby grants and conveys to Grantee an exclusive easement to (i) convert, maintain
and capture the flux of solar energy over across and through the surface estate of that certain real property,
and/or energy storage, including, but not limited to, the air space thereon, located in Weld County, (the
"County"), State of Colorado, as more particularly described in Exhibit A attached hereto and incorporated
herein (the "Property") and/or (ii) collect, transmit and store electrical energy over, across and through the
surface estate of the Property, either and both for the purposes set forth below. For purposes of calculating
acreage -based payment due under this Agreement, "Net Acre" or "Net Acreage" shall be used, which
means the gross area of the portion of the Property being referred to, including all internal easements and
rights -of -way but excluding any and all perimeter easements and dedicated rights -of -way. Net Acreage
shall be determined as described in Section 1.5 of this Agreement.
1.1 Purposes of the Easement. This Agreement is solely and exclusively for solar
energy purposes (as such term is broadly defined, including ancillary rights related thereto and necessary
for the development and operation of Solar Facilities and/or Storage Facilities (as defined below)), and
not for any other purpose, and Grantee shall have the exclusive right to develop and use the Property for
solar energy purposes and/or energy storage purposes and to derive all profits therefrom, including but not
limited to the following activities (collectively, "Site Activities"):
(a) Converting solar energy into electrical energy, and collecting and
transmitting the electrical energy so converted;
(b) Storing electricity and collecting and transmitting the electrical energy so
stored;
(c) Determining the feasibility of energy storage, solar energy conversion and
other power generation on the Property or on adjacent lands, including studies of solar energy emitted
upon, over and across the Property and other meteorological data, environmental studies and extracting
soil samples;
(d) Constructing, laying down, installing, using, replacing, relocating,
reconstructing and removing from time to time, and monitoring, maintaining, repairing, modifying and
operating the following only for the benefit of the Project or Projects (as defined below) (i) energy
collection and electrical storage equipment of any kind (the "Energy Storage Equipment'); (ii)
overhead and underground electrical distribution, collection, transmission and communications lines or
cables, electric combiners, inverters, transformers and substations, energy storage facilities, and
telecommunications equipment; (iii) roads and crane pads; (iv) control buildings, operations and
maintenance facilities and buildings; and (vi) installing, operating, maintaining, repairing and replacing
any other improvements, whether accomplished by Grantee or a third party authorized by Grantee, that
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Grantee reasonably determines are necessary, useful or appropriate to accomplish any of the foregoing
(all of the above, including the Energy Storage Equipment, collectively "Energy Storage Facilities").
(c) Constructing, laying down, installing, using, replacing, relocating,
reconstructing and removing from time to time, and monitoring, maintaining, repairing and operating the
following only for the benefit of the Project or Projects (as defined below) (i) solar energy collection and
electrical generating equipment of any kind (including, without limitation, any such equipment utilizing
photovoltaic (collectively, "Solar Generating Equipment" and together with the Energy Storage
Equipment, the "Equipment"); (ii) overhead and underground electrical distribution, collection,
transmission and communications lines or cables, electric combiners, inverters, transformers and
substations, enemy storage facilities, and telecommunications equipment; (iii) roads and crane pads; (iv)
meteorological measurement equipment; (v) control buildings, operations and maintenance facilities and
buildings; and (vi) installing, operating, maintaining, repairing and replacing any other improvements,
whether accomplished by Grantee or a third party authorized by Grantee, that Grantee reasonably
determines are necessary, useful or appropriate to accomplish any of the foregoing (all of the above,
including the Solar Generating Equipment, collectively "Solar Facilities" and together with the Energy
Storage Facilities, the "Facilities").
(f) The term "Project", for the purposes of this Agreement, means either (a) an
integrated solar energy generation system, consisting of Solar Facilities, which is constructed and
operated on the Property, and/or adjacent lands, by Grantee, or a third party authorized by Grantee, and/or
(b) an integrated battery storage system, consisting of Energy Storage Facilities, which is constructed and
operated on the Property, and/or adjacent lands, by Grantee, or a thud party authorized by Grantee.
Grantee may determine whether any particular group of Facilities constitutes a single Project or multiple
Projects for purposes of this Agreement, and in the case of multiple Projects, which portion of the
Property shall be included within each Project.
1.2 Other Uses. During the Term when Grantee construction is about to occur,
Owner agrees to provide Grantee with current information concerning the status and location of all other
land uses occurring on the Property (including, without limitation, hunting, agricultural use, industrial use
and oil and gas exploration and production activities and water use). Any new leases or renewals and or
extensions of existing leases, options to lease, seismic operations, or any other agreement made by Owner
with a third party regarding the Property (including any of the foregoing related to water, oil, gas or other
minerals) shall contain language that states that such third party shall not disturb, interfere with, preclude,
or destroy Grantee's rights hereunder.
1.3 Exclusive Easement. The terms "exclusive easement" and "exclusive right" as
used throughout this Agreement shall mean the right to exclude any other party, including Owner, from
making use of the Property for the rights and uses described.
1.4 Project Boundary. The Property as used herein shall be an area consisting of all
or part of the land as shown in Exhibit A. The "Project Boundary" is estimated on Exhibit A and will
include a fenced area that encloses the Project. Owner acknowledges and agrees that the exact size, shape
and location of the area of the Property that will comprise the final Project Boundary has not yet been
determined, and any maps or depictions which Grantee has shown or will show to Owner (including,
without limitation, Exhibit A attached hereto) are approximations only and are subject to change. Until
the Project Boundary is established, any reference to the Property herein shall be deemed to include the
entirety of the Property. After the Project Boundary is established, except for any obligations of Owner
or rights of Grantee that apply to the entirety of the Property, any reference to the Property herein shall be
deemed to include only the Project Boundary.
1.5 Survey. Prior to the expiration of the Construction Terns, Grantee shall obtain
and deliver to Owner an ALTA survey (the "Survey"), which shall set forth and conclusively establish
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v,ouucm-fuhB-497E-B99F 51D9f 1D581aFB
(1) the metes and bounds legal description of the Project Boundary, and (2) the net acreage of the Project
Boundary. The parties agree that (A) the Project Boundary and net acreage set forth in the Survey shall
be incorporated into this Agreement as if fully sct forth herein without amendment to this Agreement, and
(B) the net acreage of the Project Boundary set forth in the Survey shall be the acreage used for purposes
of computing Operating Dees. Owner acknowledges and agrees that the Finn) net acreage of the Project
Boundary as established by the Survey may be less than the npproximate acreage of the Property. if
requested by Grantee, Owner shall provide written consent to the foregoing or an amendment to this
Agreement expressly incorporating the Survey into this Agreement ns provided in this Section 1.5.
2. Grant of Additional Easements.
2.1 Owner hereby grunts, conveys and warrants to Grantee the following additional
easements upon, over, across and under the Pmperty, and is owned or controlled by Owner, as of the
i ffbetive gate:
(a) Solar Easement. An exclusive "Solar Easement" in the Property to prevent
measurable diminishment in output from the Project due to obstruction of the sunlight across the
Property, Without limiting the generality of the foregoing, Owner hereby grants and conveys to Company
an exclusive easement on, over and across the Pmperty for direct sunlight to any "Solar Energy Device"
on the Property, as defined in C.R.S. § 38-32.5-100.3(2), throughout the entire Property to and for the
benefit of the area existing horizontally three hundred and sixty degrees (360°) from any point where any
Solar Energy Device is or may be located at any time from time to time (each such point referred to as a
"Site") and for a distance fmm each Site to the boundaries of the Property, together vertically through all
space located above the surface of the Property, that is, one hundred eighty degrees (180 or such greater
number or numbers of degrecs as may be necessary to extend from each point on and along a line drawn
along the surface fmm each point along the exterior boundary of the Property through each Site to each
point and on and along such line to the opposite exterior boundary of the Property. Neither Owner nor any
person claiming through or authorized by Owner shall (i) engage in any activity on the Property (whether
by planting tre or other vicectation, constructing buildings or other structures, exploiting or preparing to
exploit the subsurface property rights or otherwise) that obstructs or impairs the availability of sunlight to
the Pmpem; or (ii) engage in any activity which would cause the introduction of excessive dust for
continued and prolonged periods of time onto the Property, as more particularly described in Section 9
below;
(b) Interference. An exclusive easement for electromagnetic, audio, visual,
view. light- noise, vibration, electrical, radio interference, or other effects attributable to the Solar
Generating Equipment, Energy Storage Equipment, the Project or any Site Activities;
(c) Access Easement. A non-exclusive easement for ingress to and egress from
the Project or Projects (whether located on the Property, on adjacent property or elsewhere) over and
across the Property by means of roads and lanes thereon if existing or later constructed by Owner, or
otherwise by such route or routes as Grantee may construct from time to time;
(d) Other Easements. All other easements required by the local utility or
reasonably necessary to accomplish the activities permitted by this Agreement, including without
limitation. generation -tie and transmission line easements, utility easements (including underground and
above -ground gas, electricity, water, and telephone), drainage easements, and geotechnical and
environmental testing and sampling easements. Any such easements shall be perpetual in nature and shall
survive the expiration of the Term.
3. Term. The terra of this Agreement shall commence on the Effective Date and continue for the
following described periods (collectively, the "Term"):
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1.1 llcvcloptticitt I elm I his Agreement shall he for an initial 11111► Mir
"Development Terra") commencing on Ihr I Ilretlrr ;late and contnmintt mild file earlier to or um n1 (Ai
Sitgy_(60) months following the Ftlective ltate, pro. idled, or (h) 1111 ronlinrni cinrnl c,l unriOrm fern,
however. the Ilevelopmcnt Venn shall not e• Aire flue hi the'milord f'olr:hurliun ActrvMe.. ;hiring! Ili,
Developmcnl rerm, Grantee shall hive the til,hl to entrr Ihr 1'iimi rty I++ ritvrooplitc acid dorm irw Ihr
f¢.�sihiliri olobtainitt}, entitlements, util+ti, inctch. interconnection point.;, mill tither arri•clncrits for
Granlct� prc`Nscd "'I:" and ,+l rm'rgw .totalgc develnpmcnt [;mince .ha}I he permiticil tri roy,pe(r rlo-
Pmperh and take such mca•it+ritii nt., rep, oidiiip and phnloyraph':, and + millict .u, h '.nrver. and
environmental. enl;inei-ting, mechanical. s1luCtlsrul, I,inle+l;ual, rullutal l;rnlrelulical, arChaeol(q,ic;ll air#
other similar tests and studie...ill as ( it mICC .hall r•asonaliIN require to a'..c., [fir ;uitatrrlity n1 thf
Pr►p its for the [Actinic.:
tat Com menrement of Ccnistitiction I lie tort. "cummeririnp (-construction'
and "commencement of construction" ;i. used in this Agreement shall nte:ln that (Lite On Ouch (;rant( t•
begins- grading of the l+n+gr11‘ for the installali(m of the Solar facillhcc and'nr the I ricrl;y Storat',r
1 a:ilitiec, pr+\iticti, ho+.e‘cr. upon prior k-on.ultation Ouncr in %%Inch (ieuntce• pruvi(tr.lit
re sonahle (ictail su#licsent to estat+lisli the neces.il1, 1,11 liulitetl C(ln,trtrcllnn activiUr, to hcitin l,rl I'I
Proper -Iv to sltisfs the rr+luncinent. 1+1 :ul in> c.tlnrnt Lix credit a: that ICrnl is dC1111Cd till' rer•tlla!1,:
Of the ktemal Re\ince Seri I:e, and 00 a unttrn pr+'p(+.,il detailing: the nalurc and :cops• of the .r.,..
constiwtion actiN ItICs C+l:rlter nitCntt, It+ 11n,1c11:11,c ("I,intilcii ('onstruetiriri l irantcc r: 1 .
rt,srirl such t emite,i 1t to, itic. on Ihr i'ropcot ►erlhnnl Ir6Tcritll, file +cmun(m;
Ct'n• 1-1!, tiOn :E. dellneti :1) 1111, 1,:,rrt'n1e111
+1+t l 1',tlr;eti i t+ll.(ruction Actl. ll ll'. Ilnrin}' all, period rn Whlelt rrrarocri 1,
ir.:lte,1 e ,'n.; u,t„',1 1:rig lt1c,, l irarm-e .Ilan be required to (a) make all ,lni•l1ln:'
;1cse:; rr-ra.n; 1C771 tinc,•i, :#uc uc7dCr this 1!,nenlrnt lulls the additional payment described in F',n 'lie
,t:113,..0 tl.iilla,iv'e and Crop Compensation '!..
1{;:, I!. .1t ,its (irarllee', l,ialiied Construction /kcal,. ', ;r ' '
:h.lt C\CL:ed the ►vritten ,cope (,f ►slrrk nn lr1:11:'.
tietennine Anti ntctits O\\ner of Nu,2h date lien the: Cnn,teuctt:lrt 1cr:
I e'nn. t.pon the expiration of the I?e‘elnpment Term, the tens ,-
1':.:lls extend and continue ("Construction Term") until tite earlier t
-'1 .-ace production of electrical ener!_.* generated 114' suhstantial!v a;:
�. .: ! .1.::;•nrrnt :a he '.I1j17LICd in the Project or (h) the commercial operation, (fate
- I ,:on,i,ttn entirely of Lnerey Storage Fquipmcnt; or (c) the ri }7th r.`'if'n,1
;r e C l? :C. 1.'pon the occurrence of subsection (a), (h) or (c). that elate. is
c rCtcried tr ct the "Openttions [late.•.
I ir,t I s;Cr1l:;:d fertn. l:pon ltic expiration of the Con,truction lerru. the tern , t
C\lCrld lOr an additional I hirty-fo.e 07") sCar tens (tile -First
E_stc dCci Term
s:ended an:1 .l11ml E:xlended Term_ l'rosided that Grantee !:a, not
.-1_.ree:rienf- then tin or he fort the exp'.r Lion of the First I.xtcr.dCd Venn.
cs:cr;l1 :he teal': ll(lhi, Agreement for an additional Dive (5) year period (the
• dud Tc'rrn- Pry icd tf:rt: Ciramee ha; not Tull. surrendcred or terminated [hi,
Krill, t}:CI1 WI or belere the e.xh;rltion of the �tconli
th.e tech tit lhl, ai_'reenlerit '.or all additional ITC
r ,_:' [ S':Cn .l,c(1 E urn] tl, option to\tend till; Agreenwnt for
there(,! on or before the date that i, one he.mir,_•c are.:
r _ \Hr;:;1; u 0 - (# c } rrti luu, i:xlcn(lrll tech.
.1
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
4. Payments to Owner. In consideration of the rights granted hereunder, Grantee will pay Owner
the amounts set forth in Exhibit B attached hereto. Exhibit B shall not be recorded without the specific
prior written consent of Grantee.
5. Ownership of Facilities. Owner shall have no ownership, lien, security or other interest in any
Facilities installed on the Property, or any profits derived therefrom, and Grantee may remove any or all
Facilities at any time. No part of the Facilities installed by Grantee on the Property shall be considered
part of the Property or an improvement to real property, the Facilities shall at all times be considered
tangible personal property owned exclusively by Grantee. Except for those payments described in this
Agreement, including Exhibit B, Owner shall not be entitled to any other payments or benefits accrued by
or from the Project, including, but not limited to, renewable energy credits, environmental credits
(including, without limitation, soil carbon sequestration and phosphorous credits) or tax credits.
6. Taxes. Owner shall pay all taxes, assessments, or other governmental charges, general and
specific, that shall or may during the Teri be imposed on, or arise in connection with the Property itself;
provided, however, during the Terra Grantee shall be liable for any incremental increase in such taxes,
assessments, or other governmental charge~ directly resulting; from the presence of the Facilities installed
upon the Property ("Grantee Taus"). To the extent the applicable taxing authority provides a separate tax
bill for the Grantee Taxes to grantee, Grantee shall pay such Grantee 'faxes directly to the applicable taxing
authorities prior to the date such Grantee Taxes become delinquent. If a separate tax bill for the Grantee
Taxes is not prownded to Grantee. Grantee shall pay the Grantee Taxes within thirty (30) days following
receipt of written demand from Owner of the amount of the Grantee Taxes with a copy of the applicable
tax bill. To the extent that any of the Grantee Taxes arc jointly assessed with Owner's real estate taxes,
assessments and other impositions, the Parties shall cooperate in a good faith effort to cause such Grantee
Taxes to be separately assessed. Both Parties shall pay their respective tax bills when due and if either
Party fails to make such payments when due, then the other Party may, but shall not be obligated to, pay
the taxing authorities the entire amount due on the tax bill, including any interest and/or penalties and obtain
reimbursement for such amount paid on behalf of such Party plus interest (computed from the date of full
payment) at a rate equal to the sum of: (i) two percent (2%) per annum; plus, (ii) the prime lending rate as
from time to time may be published by The Wall Street Journal under the "Money Rates" section; provided,
that in no event shall such total interest exceed the maximum rate permitted by applicable law. If Grantee
pays taxes, assessments. and/or real property taxes on behalf of Owner that are Owner's obligation
hereunder, Grantee may offset the amount of such payments against amounts due Owner under this
Agreem ent.
7. indemnitvliabilits .
7.1 Each Pam (the "Indemnifying Party") shall defend, indemnify and hold
harmless the other Part and such other Party's Related Persons (as defined below) (each, an
"Indemnified Part.-") from and against any and all third party (excluding Related Persons) claims,
litigation_ actions. proceedings. losses, damages, liabilities, obligations, costs and expenses, including
reasonable attorneys', in.esticators' and consulting fees, court costs and litigation expenses (collectively,
"Claims") suffered or incurred by such indemnified Party, arising from the negligence or intentional
misconduct of the indemnifying Party.
In no event shall either Party be liable to the other Party to the extent any Claim
is caused by, arising from or contributed by the negligence or intentional misconduct of such other Party
or any Related Person thereof.
7.3 Except for payments expressly required herein (such as crop damage
compensation), in no event whether as a result of breach of contract, warranty, indemnity, tort (including
negligence), strict liability or otherwise, shall either Party be liable to the other Party for loss of profit or
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revenues, loss of business opportunities or for any other special, consequential, incidental, indirect or
exemplary damages.
7.4 In no event shall Grantee or its Related Persons he liable to Owner for property
damage or personal injuries to Owner or its Related Persons attributable to risks of known and unknown
dangers associated with normal day-to-day operation of electrical generating facilities, such as noise,
electromagnetic fields, and glare, or from any ninoff or altered drainage patterns resulting from Grantee's
grading of the Property.
7.5 In no event shall either Party or its Related Persons be liable to the Other Party
for expenses incurred in such other Party's lawful enforcement of its rights under this Agreement for a
default during any applicable cure period. For the benefit of the doubt, this provision excludes recovery
by a prevailing Party of reasonable attorneys' fees and costs incurred in connection with any legal
proceeding pursuant to Section 14.7 of this Agreement.
7.6 As used herein the tern "Related Person" shall mean:
(a) With respect to Owner, any principals, employees, servants, guests or
invitees of Owner or those third persons over whom Owner exercises actual control; or
(b) With respect to Grantee, any affiliates, contractors, lessees, and sublessees of
Grantee, and each of their respective, principals, officers, employees, servants, agents, representatives,
subcontractors, licensees, invitees, and/or guests.
7.7 This Section 7 shall survive the expiration or earlier termination of this
Agreement.
8. Grantee's Representations, Warranties, and Covenants. Grantee hereby represents, warrants,
and covenants to Owner that:
8.1 Grantee's Authority. Grantee has the unrestricted right and authority to execute
this Agreement Each person signing this Agreement on behalf of Grantee is authorized to do so. Upon
execution by all Parties hereto, this Agreement shall constitute a valid and binding agreement enforceable
against Grantee in accordance with its terms. .
8.2 Minimal Impacts. Grantee agrees to conduct its Site Activities and to locate and
operate its Facilities in such a way as to reasonably minimize impacts to the Property and to Owner's
activities on the Property, to the extent practical, without negatively impacting the Facilities. If Owner's
Property is fenced, all access roads constructed by Grantee on the Property shall be gated by Grantee at
Grantee's expense, and Owner shall be furnished with keys or other ability to open and close such gates.
8.3 Insurance. Grantee shall, at its expense, be responsible for assuring that
insurance coverages, as would be customary and reasonable for similarly situated companies performing
the work carried out by Grantee at such time, are maintained, including, without limitation, adequate
coverage to cover any personal injuries or accidents that could reasonably be expected as a direct result of
the Site Activities conducted by Grantee or its Related Persons on the Property.
8.4 Requirements of Governmental Agencies. Grantee, at its expense, shall comply
in all material respects with valid laws, ordinances, statutes, orders, and regulations of any governmental
agency applicable to the Facilities. Grantee shall have the right, in its sole discretion, to contest by
appropriate legal or administrative proceedings, the validity or applicability to Grantee, the Property or
Facilities of any law, ordinance, statute, order, regulation, property assessment, or the like now or
hereafter made or issued by any federal, state, county, local or other governmental agency or entity. Any
such contest or proceeding shall be controlled and directed by Grantee.
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8.5 Construction Liens. Grantee shall keep the Property free and clear of all liens
and claims of liens for labor and services performed on, and materials, supplies, or equipment furnished
to, the Property in connection with Grantee's use of the Property pursuant to this Agreement; provided,
however, that if Grantee wishes to contest any such lien, Grantee shall, at Grantee's sole discretion and
within sixty (60) days after it receives written notice of the filing of such lien, either (i) provide a bond to
Owner for the amount of such lien, (ii) provide Owner with title insurance insuring Owner's interest in
the Property against such lien claim, or (iii) deposit funds or a bond with the court of competent
jurisdiction in accordance with C.R.S. § 38-22-131.
8.6 Hazardous Materials. Neither Grantee nor its Related Persons shall violate any
federal, state, or local law, ordinance, or regulation relating to the generation, manufacture, production,
use, storage, release, discharge, disposal, transportation or presence of asbestos -containing materials,
petroleum, explosives or any other substance, material, or waste which is now or hereafter classified as
hazardous or toxic, or which is regulated under current or future federal, state, or local laws or
regulations, on or under the Property (each, a "Hazardous Material"). Grantee shall promptly notify
Owner if any violation occurs.
8.7 Reserved.
9. Owner's Representations, Warranties, and Covenants. Owner hereby represents, warrants, and
covenants as follow:
9.1 Owner's Authority. Owner is the sole fee simple owner of the Property including
the subsurface estate thereof, and has the unrestricted right and authority to execute this Agreement and to
grant to Grantee the rights granted hereunder. To the extent Owner is not the sole fee simple owner of the
subsurface Mate, Owner shall fully cooperate with and assist Grantee in obtaining a recognition
agreement, non -disturbance agreement or other appropriate agreement from each party from time to time
holding a mineral or non -mineral interest, lease, grant or reservation of interest under or affecting the
Property, conforming to Grantee's reasonable satisfaction that the use and exploitation of said existing
mineral or non -mineral leases or interests is not anticipated to interfere with or adversely affect Owner's
planned or contemplated uses, disturb the subsurface under the Facilities or the free flow of direct
sunlight across the Property. F_ach person signing this Agreement on behalf of Owner is authorized to do
so. Upon execution by all Parties hereto, this Agreement shall constitute a valid and binding agreement
enforceable against Owner in accordance with its terms. Each person/entity comprising Owner, as listed
in the preamble to this Agreement, owns the fractional interest in the Property set forth below:
Owner.
35321 Estate, LLC
I
Fractional
Ownership:
100%
9.2 No Interference. Owner's activities and any grant of rights Owner makes to any
person or entity, shall not, currently or prospectively, disturb or interfere with: the construction,
installation, maintenance, or operation of the Facilities, whether located on the Property or elsewhere;
access over the Property to such Facilities; any Site Activities; or the undertaking of any other activities
permitted hereunder. Without limiting the generality of the foregoing, Owner shall not erect any
structures, plants or other equipment, or enter into any third party agreements or amend or extend any
existing agreements ("Third Party Agreements") or undertake any other activities (an "Owner Action"
or collectively the "Owner Actions") that may: (i) interfere with Grantee's right to install Facilities on
any portion of the Property, (ii) potentially cast a shadow onto the Solar Facilities, (iii) cause a decrease in
the output or efficiency of any Facilities, (iv) interrupt the flux of solar energy upon, across and over any
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portion of the Property used or to be used by the Solar Facilities, or (v) otherwise interfere with Grantee's
operations on the Pmperty (each an "Interference"). Prior to undertaking an Owner Action, that may
cause an Interference, Owner shall consult with Grantee to confirm that such Owner Action will not cause
any Interference. If Grantee reasonably determines the Owner Action could cause an Interference, then
Owner shall not be permitted to undertake such Owner Action. Owner shall not disturb or, to the extent
permitted by applicable law, permit the disturbance of the subsurface such that may impact in any way the
structural integrity or the operations and maintenance of the Facilities. Further, notwithstanding the
foregoing, Owner agrees that it will notify Grantee in writing within ten (10) days after it receives any
notice of mineral exploration or development in, on, or under the Property, and such notice shall include a
copy of any documents and information pmvided to Owner in relation to the notice. Owner and Grantee
shall cooperate in good faith and work jointly a.S to, and each party shall be permitted to participate in,
any (i) response to any such notification; (ii) negotiation with any mineral or non -mineral rights holder,
including without limitation acceptance or rejection of any surface use and compensation proposal and/or
entry into(...) any surface use and compensation agreement to Granite's satisfaction; nr enforcement of the
rights of the surface owner as set forth in the Surface Owner Protection Act, including without limitation
recovery of costs and attorneys' fees and (iv) pursuit of compensation for damages associated with
mineral exploration and development in, on or under the Property. Grantee shall have the right to trim
existing trees to maintain approximately their same height and width as exists as of the date hereof for the
purpose of not interfering with the flux of solar energy from any angle upon, across and over the Property.
Owner agrees not to develop, co -develop, acquire or otherwise participate in any solar or energy storage
related project or projects with an aggregate output in excess of 500 kilowatts within any area that is
within five (5) miles of the Project.
9.3 Liens and Tenants. Except as may be disclosed in the real property records of the
County, or as disclosed by Owner in writing to Grantee on or prior to the Effective Date, Owner
represents there are no leases (including water, oil, gas and/or other mineral interests), easements,
licenses, rights of way, mortgages, deeds of trust, liens, security interests, mechanic's liens or any other
encumbrances encumbering all or any portion of the Property that could interfere with Grantee's
operations on the Property, including mechanic's liens. If such Owner representation and warranty is
breached and such breach is not caused by Grantee, then Owner shall fully cooperate and assist Grantee in
removing or limiting such interference, including, but not limited to, obtaining a subordination and non -
disturbance agreement where Grantee deems it necessary, with terms and conditions reasonably requested
by Grantee to protect its rights hereunder, from each party that holds such rights (recorded or unrecorded),
and in the case of monetary liens such as mechanic's liens, bonding over any such liens in an amount that
may be reasonably requested by Grantee.
9.4 Requirements of Governmental Agencies and Setback Waiver. Owner shall
assist and fully cooperate with Grantee, at no out-of-pocket expense to Owner, in complying with or
obtaining any land use permits and approvals, building permits, environmental impact reviews, tax
abatements or any other permits and approvals reasonably necessary for the development, financing,
construction, installation, monitoring, repair, replacement relocation, maintenance, operation or removal
of Facilities, including, but not limited to, execution of applications and documents reasonably necessary
for such approvals and permits, and participating in any appeals or regulatory proceedings respecting the
Facilities. To the extent permitted by law, Owner hereby waives enforcement of any applicable setback
requirements respecting the Facilities to be placed on or near the Property that are reasonably necessary,
in Grantee's sole and absolute discretion, to carry out Grantee's power -generating activities on or near the
Property. Without limiting the generality of the foregoing, Owner expressly agrees to cooperate with
Grantee with regard to any subdivision approvals or exemption applications relating to the Property for
the rights granted hereunder. Owner expressly understands and agrees that Grantee may apply for an
exemption from applicable subdivision regulations related to the grant of rights hereunder, which may be
done in Owner's name, and Owner's cooperation shall include without limitation, if necessary, signing
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any and all applications and plats and signing n written agreement not to further subdivide the Property or
any portion thereof for five (5) years from the date of the exemption without compliance with applicable
subdivision regulations or any other terms or restrictions as required by the regulations in order to
effectuate the subdivision exemption application as necessary or desired by Grantee.
9.5 hazardous Materials. Neither Owner nor its Related Persons shall violate any
federal, state or local law, ordinance or regulation relnti ig to the generation, manufacture, production,
use, storage, release, discharge, disposal• transportation or presence of any hazardous Material. Owner
shall promptly notify Grantee if any such violation occurs. To the best of Owner's knowledge, (i) no
underground tanks air now located or at any time in the past have been located on the Property or any
portion thereof, (ii) no llama -Ions Material has been generated, manufactured, transported, produced,
used, treated, stoned, released, disposed of or otherwise deposited in or on or allowed to emanate from the
Property or any portion thereof other than as permitted by applicable law and (iii) there are no Hazardous
Materials in, on or cmannting from the Property or any portion thereof which may support a claim or
cause of action under any applicable law. Owner certifies it has never received any notice or other
communication from any governmental authority alleging that the Property is or was in violation of any
applicable law.
9.6 Litigation. No litigation is pending, and, to the best of Owner's knowledge, no
actions, claims or other legal or administrative pmceedings arc pending, threatened or anticipated with
respect to, or which could affect, the Property. if Owner leams that any such litigation, action, claim or
proceeding is threatened or has been instituted, Owner shall promptly deliver notice thereof to Grantee
and provide Grantee with periodic updates of the status of said litigation, action, claim or proceeding that
is ongoinc.
9.7 Title Insurance and Financing. Owner agrees that Owner shall execute and
deliver to Grantee any documents reasonably required by the title insurance company and/or a financing
party within five (5) business days after presentation of said documents by Grantee; provided, however, in
no event shall such documents materially increase any obligation or materially decrease any right of
Owner hereunder. Owner shall have no obligation to initiate the process to obtain title insurance on
behalf of the Grantee.
10. Assignment
10.1 Collateral Assignments. Grantee shall have the absolute right in its sole and
exclusive discretion, without obtaining the consent of Owner, to finance, mortgage, encumber,
hypothecate, pledge or transfer to one or more Mortgagees any and all of the rights granted hereunder,
including the easements granted in Section 2, and/or any or all rights or interests of Grantee in the
Property, or in any or all of the Facilities.
10.2 Non -Collateral Assignments. Grantee shall have the right, without the prior
consent of Owner, to sell, convey, assign or transfer (including granting co -easements, separate
easements, subeasements) any or all of its rights hereunder in and to any or all of the Property provided
such transfer is related to a Project. Grantee shall be relieved of all of its obligations arising under this
Agreement, as to all or such portion of its interests in the Property transferred, from and after the effective
date of such transfer, provided such rights and obligations have been assumed by such transferee.
10.3 Acquisition of Interest. The acquisition of all interests, or any portion of interest,
in Grantee by another person shall not require the consent of Owner or constitute a breach of any
provision of this Agreement and Owner shall recognize the person as Grantee's proper successor.
11. Default and Remedies.
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11.1 If Party defaults in or otherwise fails to perform an obligation under this
Agreement, the non -defaulting Party shall not have the right to exercise any remedies hereunder if the
default is cured by the defaulting Party within sixty (60) days of receiving written notice of such default
specifying in detail the default and the requested remedy (a "Notice of Default"); provided, that if the
nature of the default requires, in the exercise of commercially reasonable diligence, more than sixty (60)
days to cure, the non- defaulting Party shall not have the right to exercise any remedies hereunder as long
as the defaulting Party commences performance of the cure within sixty (60) days of receipt of Notice of
Default and thereafter completes such cure with commercially reasonable diligence. Further, if the
Parties have a good faith dispute as to whether a payment is due hereunder, the alleged defaulting Party
may deposit the amount in controversy (not including claimed consequential, special, exemplary or
punitive damages) into escrow with any reputable third party escmwee, or may interplead the same,
which amount shall remain undistributed and shall not accrue interest penalties, and no default shall be
deemed to have occurred, until final decision by a court of competent jurisdiction or upon agreement by
the Parties. No such deposit shall constihrte a waiver of the defaulting Party's right to institute legal
action for recovery of such announm.
11.2 Remedies. Except as qualified by Section 12 regarding Mortgagee Protections,
should a default remain uncured beyond the applicable cure periods, the non -defaulting Party shall have
the right to exercise any and all remedies available to it at law or in equity, all of which remedies shall be
cumulative, including the right to enforce this Agreement by injunction, specific performance or other
equitable relief. Notwithstanding anything in this Agreement to the contrary or any rights or remedies
Owner might have at law or in equity, if any of Grantee's Facilities are then located on the Property and
Grantee fails to perform any of its obligations hereunder beyond applicable cure periods, Owner shall be
limited to pursuing damages and Owner may not commence any action to terminate or cancel this
Agreement.
12. Mortgagee Protection. In the event that any mortgage, deed of trust, financing statement, or
other security interest in this Agreement or in any Facilities, or any portion thereof (a "Mortgage"), is
entered into by Grantee then any person who is the mortgagee, grantee or beneficiary of a Mortgage (a
"Mortgagee,) shall, for so long as its Mortgage is in existence and until the lien thereof has been
extinguished, be entitled to the protections set forth in this Section 12. Grantee shall send written notice to
Owner of the name and address of any such Mortgagee; provided that failure of Grantee to give notice of
any such Mortgagee shall not constitute a default under this Agreement and shall not invalidate such
Mortgage.
12.1 Mortgagee's Right to Possession, Right to Acquire and Right to Assign. A
Mortgagee shall have the absolute right: (i) to assign its security interest; (ii) to enforce its lien and
acquire title to the easement estate by any lawful means; (iii) to take possession of and operate the
Facilities or any portion thereof, to exercise all of Grantee's rights hereunder, and to perform all
obligations to be performed by Grantee hereunder, or to cause a receiver to be appointed to do so; and (iv)
to acquire the easement estate by foreclosure or by an assignment in lieu of foreclosure and thereafter to
assign or transfer the easement estate to a third party. Owner's consent shall not be required for the
acquisition of the encumbered easement or subeasement estate by a third party who acquires the same by
foreclosure or assignment in lieu of foreclosure.
12.2 Notice of Default; Opportunity to Cure. As a precondition to exercising any
rights or remedies as a result of any default of Grantee, Owner shall give a Notice of Default to each
Mortgagee of which it has notice, concurrently with delivery of such notice to Grantee. In the event
Owner gives a Notice of Default, the following provisions shall apply:
(a) A "Monetary Default" means Grantee's failure to pay when due any
monetary obligation of Grantee under this Agreement. Any other default by Grantee is a "Noll -
Monetary Default."
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(b) The Mortgagee shall have the same period after receipt of the Notice of
Default to remedy the default, or cause the same to be remedied, as is given to Grantee, plus, in each
instance, the fallowing additional time periods: (i) thirty (30) days, for a total of ninety (90) days after
receipt of the Notice of l)efault in the event of any Monetary Default; and (ii) sixty (60) days, for a total
of one hundred twenty (120) days after receipt (tithe Notice of Default in the event of any Non -Monetary
Default, provided that such 120 -day period shall be extended for the time reasonably required to complete
such cure, including the time required for the Mortgagee to perfect its right to cure such Non -Monetary
Default by obtaining possession of ( ratter's easement estates in rind to the Property (including
possession by a receiver) or by instituting* foreclosure proceedings, provided the Mortgagee acts with
reasonable and continuous diligence. The Mortgagee shall have the absolute right to substitute itself for
Grantee and perform the duties of Grantee hereunder for purposes of curing such default. Owner
exiaressty consents to such substitution. agrees to accept such performance, and authorizes the Mortgagee
(or its employees_ agents, representatives or contractors) to enter upon the Pmperty to complete such
performance with all the rights. privileges nod obligntions of the original Grantee hereunder. (honer shall
not tal=e any action to terminate this Agreement in law or equity prior to the expiration of the cure periods
available to a Mortgagee as set firth above.
(c) During any period of possession of Grantee's easement estates in and to the
Property b) a Mortgagee (or a receiver requested by such Mortgagee) and/or during the pendency of any
foreclosure pn accedings instituted by a Mortgagee, the Mortgagee shall pay or cause to be paid all
monetary charZ.z..N payable by Grantee hereunder which have accrued and are unpaid at the
commencement of said period and those which accnre thereafter during said period. Following
acquisition of Grantee's easement Mate in and to the Property by the Mortgagee or its assignee or
d signee as a result of either foreclosure or acceptance of an assignment and/or deed in lieu of
foreclosure, or by a purchaser at a foreclosure sale, this Agreement shall continue in full force and effect
and the Mortgagee or party acquiring title to Grantee's easement estate shall, as promptly as reasonably
possible. commence the cur of all of Grantee's defaults which are reasonably susceptible of being cured
by the Mortgagee or par' acquiring title, hereunder and thereafter diligently process such cure to
completion, whereupon such defaults shall be deemed cured without incurring any default hereunder.
(d) Any Mortgagee or other party who acquires Grantee's easement interest in
and to the Property pursuant to foreclosure or assignment in lieu of foreclosure shall be liable to perform
the obligations imposed on Grantee by this Agreement for such interest so long as such Mortgagee or
other party has ownership of the easement estate or possession of the Property.
(e) Neither the bankruptcy nor the insolvency of Grantee shall be grounds for
terminating this Agreement as long as all material obligations of Grantee under the terms of this
Agreement are performed by the Mortgagee in accordance with the terms hereunder.
(f) Nothing herein shall be construed to extend this Agreement beyond the Term
or to require a Mortgagee to continue foreclosure proceedings after a default has been cured. If the
default is cured and the Mortgagee discontinues foreclosure proceedings, this Agreement shall continue in
full force and effect_
12.3 New Agreement to Mortgagee. If this Agreement terminates because of
Grantee's default or if the easement estate is foreclosed upon, or if this Agreement is rejected or
disaffirmed pursuant to bankruptcy law or other law affecting creditors' rights, Owner shall, upon written
request from any Mortgagee within ninety (90) days after such event, enter into a new agreement for the
Property on the following terms and conditions:
(a) 71ie terms of the new agreement shall commence on the date of termination,
foreclosure, rejection or disafiirrnance and shall continue for the remainder of the Term, at the same rent
and subject to the same terms and conditions set forth in this Agreement.
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(b) The new agreement shall he executed within thirty (30) days after receipt by
Owner of written notice of the Mortgagee's election to enter a new agreement, provided said Mortgagee:
(' pays to Owner all rent and other monetary charges payable by ( irentee under the terms of this
Agreement up M the date of execution of the new agreement, ns if this Agreement hnd not been
terminated, foreclosed, rejected or disaffimred; (ii) performs all other obligations of Grantee under the
terms of this Agreement, to the extent performance is then due rind susceptihle of being cured and
performed by the Mortgagee; and (iii) agrees in writing to perform, or cause to he performed, all non -
'monetary obligations which have not been perfoneed by Grantee and would have accrued under this
Agreement up to the date of c ommenecment of the new agreement, except those obligations which
constitute non-eurable defaults. Any new agreement granted to the Mortgagee shall enjoy the same
priority as this Agreement over nny lien, encumbrances or other interest created by Owner,
(e) At the option of the Mortgagee, the new agreement may be executed by a
designee of such Mortgagee without the Mortgagee nssuming the burdens and obligations of Grantee
thereunder.
(d) if more than one Mortgagee makes a written request for a new agreement
pursuant hereto, the new agreement shall be delivered to the Mortgagee requesting such new agreement
whose Mortgage is prior in lien, and the written request of any other Mortgagee whose lien is subordinate
shall be void and of no further force or effect.
(e) The provisions of this Section 12 shall survive the termination, rejection or
disaffirmance of this Agreement and shall continue in fitll force and effect thereafter to the same extent as
if this Section 12 were a separate and independent contract made by Owner, Grantee and such Mortgagee,
and, from the effective date of such termination, rejection or disaffirmation of this Agreement to the date
of execution and delivery of such new agreement, such Mortgagee may use and enjoy said Property
without hindrance by Owner or any person claiming by, through or under Owner, provided that all of the
conditions for a new agi cx:went as set forth herein are complied with.
12.4 Mortgagee's Consent to Amendment, Termination or Surrender.
Notwithstanding any provision of this Agreement to the contrary, the Parties agree that so long as there
exists an unpaid Mortgage. this Agreement shall not be modified or amended and Owner shall not accept
a surrender of the Property or any part thereof or accept a cancellation, termination or release of this
Agreement from Grantee prior to expiration of the Term without the prior written consent of the
Mortga_eee_ This provision is for the express benefit of and shall be enforceable by such Mortgagee.
12.5 No Waiver. No payment made to Owner by a Mortgagee shall constitute an
agreement that such payment was, in fact, due under the terms of this Agreement; and a Mortgagee,
having made any payment to Owner pursuant to Owner's wrongful, improper or mistaken notice or
demand, shall be entitled to the return of any such payment.
12.6 No Merger. There shall be no merger of this Agreement, or of the easement
estate created by this Agreement, with the fee estate in the Property by reason of the fact that this
Agreement or the easement estate or any interest therein may be held, directly or indirectly, by or for the
account of any person or persons who shall own the fee estate or any interest therein, and no such merger
shall occur unless and until all persons at the time having an interest in the fee estate in the Property and
all persons (including Mortgagee) having an interest in this Agreement or in the easement estate or in the
estate of Owner and Grantee shall join in a written instrument effecting such merger and shall duly record
the same.
12.7 Estoppel_ Certifcateselec. Owner shall execute such estoppel certificates
(certifying as to such matters as Grantee may reasonably request, including without limitation that no
default by Grantee then exists under this Agreement, if such be the case) and/or consents to assignment
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(whether or not such consent is actually required) and/or non -disturbance agreements as Grantee, any
transferee of Grantee or Mortgagee may reasonably request from time to time. The failure of Owner to
deliver any estoppel certificate within fifteen (15) days after Grantee's written request therefor shall be
conclusive evidence that (i) this Agreement is in full force and effect and has not been modified; (ii) any
amounts payable by Grantee to Owner have been paid thnnigh the date of such written request; (iii) there
are no uncured defaults by Grantee; and (iv) the other certifications requested by Grantee in its estoppel,
are in fact, true and correct. Owner has an affirmative obligation to disclose to Grantee and any all
unrecorded inter in and to the Property, including oral leases or agreements, throughout the Term of
this Agreement.
13. Termination.
13.1 Grantee's Right to Terminate. Grantee shall have the right to terminate this
Agreement as to all or any part of the Property at any time and without cause, effective upon written
notice to Owner from Grantee.
13.2 Reserved.
13.3 Effect of Termination. Upon termination of this Agreement, Grantee shall, as
soon as practicable thereafter, but not later than twelve (12) months after the termination, remove above-
ground and below -ground (to a depth of three (3) feet below grade) Facilities from the Property (the
"Remediation Term"), without additional charge or rental for such entry and removal, and without such
entry constituting a holdover. All Property disturbed by Grantee shall be restored to a condition
reasonably similar to its original condition as it existed upon the Effective Date.
(a) Upon the expiration or termination of this Agreement, and through the date
Grantee completes the removal of its Facilities from the Property, Grantee shall pay Owner twenty
percent (20%) of the Operating Fees (as defined in Exhibit B) that were paid to Owner during the
immediately preceding calendar year. This percentage shall be prorated, and paid out monthly in twelve
(12) installments during the Remediation Term (the "Remediation Term Fees").
(b) If Grantee fails to remove such Facilities within twelve (12) months of
termination of this Agreement, or such longer period as Owner may provide by extension, Owner shall
have the right to restore the Property and remove, or to cause removal of, any property owned by Grantee
to the extent required by Grantee under this Section 13.3, and the right to receive reimbursement, less the
salvage value of the Facilities, from Grantee for any remaining amounts reasonably incurred for removal
and restoration of the Property.
14. Miscellaneous.
14.1 Force Majeure. If performance of this Agreement or of any obligation hereunder
is prevented or substantially restricted or interfered with by reason of an event of Force Majeure (defined
below), the affected Party, upon giving notice to the other Party, shall be excused from such performance
to the extent of and for the duration of such prevention, restriction or interference, and the Term or any
other time periods herein shall be extended for such period of time. The affected Party shall use its
reasonable efforts to avoid or remove such causes of nonperformance and shall continue performance
hereunder whenever such causes are removed. "Force Majeure" means fire, earthquake, flood, pandemic,
or other casualty, condemnation or accident; strikes or labor disputes; war, acts of terrorism, civil strife or
other violence; any law, order, proclamation, regulation, ordinance, action, demand or requirement of any
government agency or utility, including, without limitation, "stay-at-home" or "shelter -in -place" orders;
or any other act or condition beyond the reasonable control of a Party hereto.
14.2 Confidentiality. To the fullest extent allowed by law, Owner shall maintain in
the strictest confidence, and Owner shall require each Related Person of Owner to maintain in the strictest
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confidence, for the sole benefit of Grantee, all information pertaining to the financial terms of or
payments under this Agreement, Grantee's site or product design, methods of operation, methods of
construction, power production or availability of the Facilities, and the like, whether disclosed by Grantee
or discovered by Owner, unIms such information either (i) is in the public domain by reason of prior
publication through no act or omission of Owner or any Related Person of Owner, or (ii) was already
known to Owner at the time of disclosure and which Owner is free to use or disclose without breach of
any obligation to any person or entity. To the fullest extent permitted by law, Owner shall not use such
information for its own benefit, publish or otherwise disclose it to others, or permit its use by others for
their benefit or to the detriment of Grantee. Notwithstanding the foregoing, Owner may disclose such
information to any auditor or to Owner's family members, lenders, attorneys, accountants and other
personal advisors; any prospective purchaser of or lenders for the Property; or pursuant to lawful process,
subpoena or court order; provided Owner in making such disclosure advises the party receiving the
information of the confidentiality of the information and obtains the agreement of said party not to
disclose the information.
14.3 Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon Owner and Grantee and, to the extent provided in any assignment or other transfer under
Section 10 hereof, any transferee, and their respective heirs, transferees, successors and assigns, and all
persons claiming under them. References to Grantee in this Agreement shall be deemed to include
transfele of Grantee that hold a direct ownership interest in this Agreement and actually are exercising
rights under this Agreement to the extent consistent with such interest.
14.4 Memorandum; Recording. At Grantee's option: (i) Grantee may record a copy of
this Agreement, excluding Exhibit B, or (ii) upon request from Grantee, Owner shall execute in
recordable form, and Grantee may then record, a memorandum of this Agreement substantially in the
form of Exhibit C attached hereto, incorporating only those non -substantive changes to the form as may
be required by the applicable jurisdiction in which recording is sought and to reflect the terms of this
Agreement. Owner hereby consents to the recordation of the interest of a transferee of Grantee in the
Property. With respect to the First Extended Term, Second Extended Term, and Third Extended Term,
upon request from Grantee, Owner shall execute, in recordable form, and Grantee may then record, a
memorandum evidencing the First Extended Term, Second Extended Term, and Third Extended Term, as
applicable; provided that the execution of such memorandum is not necessary for such First Extended
Term, Second Extended Term, or Third Extended Term to be effective.
14.5 Notices. All notices or other communications required or permitted by this
Agreement, including payments to Owner, shall be in writing and shall be deemed given when personally
delivered to Owner or Grantee, or in lieu of such personal delivery services, the same day if sent via
facsimile with confirmation, the next business day if sent via ovemight delivery or five (5) days after
deposit in the United States mail, first class, postage prepaid, certified, addressed as follows:
If to Owner.
35321 Estate, LLC
c/o Jennifer Powell
35321 County Road 31
Greely, CO 80631-9311
Email: shanepowe112000@yahoo.com
If to Grantee:
Reactivate CO Development LLC
c/o Reactivate DevCo LLC
2045 W Grand Ave. Ste B, PMB 52340
Chicago, IL 60612
Revl 60623
14
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
Either Party may change its address for purposes of this paragraph by giving written orifice, of each chnnge
to the other Parties in the manner provided in this paragraph
I a.ts Entire Agreement, Amendments this Agreement, together with all exhibits
twitched hereto, constitutes the entire agreement between Owner (and its respective successors, heirs,
affiliates and atsigns) and GrAnte<' (and its respective cucceSsr>•r;e, brim nffilintrs And assigns) rr pectins
its subject mattes, and supersedes any and all oral or written agreements, All of the provisions of the
Exhibit: shall be treated as if circh pros isions were set forth in the body of this Ap,rcement and shall
eepr+ccent binding obligations of each of the Parties as part of this Agreement. Any agreement,
understanding or representation respecting the Property, or any other matter referenced herein not
exprmty cent forth in this Agreement or a previous writing signed by both Parties is null and void. l`lei
purportml modifications or amendments. including without limitation any oral agreement (even if
supported t`y new consideration), course of conduct or absence of a response to a unilateral
unless in a writing signed by bath Parties. Provided that
communication, shall he binding on either Party
no material default in the performance of Grantee's obligations under this Agreement shall have occurred
and remain uncured, Owner shall cooperate with Grantee in amending this Agreement from time to time
to include any. provision that may be reasonably requested by Grantee for the purpose of implementing
the provisions contained in this Agreement or for the purpose of preserving the security interest of any
transferee of Grantee or Mortgagee.
14.7 Legal Matters. This Agreement shall be governed by and interpreted in
accordance with the laves of the State of Colorado. If the Parties are unable to resolve amicably any
dispute arising out of or in connection with this Agreement, they agree that such dispute shall be resolved
in the state courts located in the County. The Parties agree that any rule of construction to the effect that
ambisuitiare to be resolved in favor of either Party shall not be employed in the interpretation of this
Agreement and is hereby waived. Thc substantially prevailing Party in any action or proceeding for the
enfor.,einent, protection or establishment of any right or remedy under this Agreement shall be awarded
recovery of its reasonable attorneys' fees and costs in connection with such action or proceeding from the
substantially non -prevailing Party.
14.8 Partial Invalidity. Should any provision of this Agreement be held, in a final and
unappealable decision by a court of competent jurisdiction, to be either invalid, void or unenforceable, the
remaining provisions hereof shall remain in full force and effect, unimpaired by the holding.
Notwithstanding any other provision of this Agreement, the Parties agree that in no event shall the Term,
or the term of any easement granted herein be longer than, respectively, the longest period permitted by
applicable law.
14.9 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 and the same
document_ For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall
have the same force and effect as an original signature.
14.10 Tax and Renewable Energy Credits. All benefits and incentives that result from
Grantee's development and use of the Property for energy storage and/or solar energy purposes shall
accrue to the benefit of Grantee, including but not limited to any portfolio energy credits, rebates in lieu
of portfolio energy credits, any reductions or credits in taxes and/or assessments, rebates, financing,
federal, state and local grants, reductions in fees, participation in federal, state or local special programs
or tax districts, and special programs of public utilities. If under applicable law, the holder of an
easement estate becomes ineligible for any tax credit, renewable energy credit or rebate, environmental
credit or any other benefit or incentive for renewable energy established by any local, state or federal
government, or any public utility, then, at Grantee's option, Owner and Grantee shall exercise good faith
and negotiate an amendment to this Agreement or replace it with a different instrument so as to convert
Rev100623 15
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
Grantee's intent in the Pmperty to a substantially similar interest that makes Grantee eligible for such
credit, benefit, rebate, or incentive.
14.11 No Partnership. Nothing contained in this Agreement shall be construed to
create an association, joint venture., trust or partnership covenant, obligation or liability on or with regard
to any one or more Parties in this Agreement.
14.12 Waiver of Right to Trial by .fury. F.ACi i OF TTIE PARTIES KNOWINGLY,
VOLUNTARILY AND 1NTEN'ITONALi.Y WAIVES TIIE RICH IT'TO A TRIAL BY JURY IN
RESPECT OF ANY I TEI :ATION RASED ONTHIS AGREEMENT, OR ARISING OUT OF, TINDER.
OR IN CONNECTION W1111 1111E AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO
BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COI/RSE OF
DEALING. STATEMENTS (WHE TIER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO. EACH OE 111E PAR-11ES TO "THIS AGREEMENT WAIVES ANY RiGF T TO
CONSOLIDATE ANY ACTION 1N WHICH A JURY TRIAL HAS BEEN WAiVE_.D WITH ANY
OTHER ACTION iN WIIiCl1 A JURY TRIAL CANNOT OR IIAS NOT BEEN WAIVED. THIS
PROVISION iS A MATER' Al , INDUCEMENT TO EACH OF THE PARTIES FOR ENTERING INTO
THIS ACiREF.MENT.
14.13 Public Officials. Owner acknowledges that its receipt of monetary and other
good and valuable consideration hereunder may represent a conflict of interest if Owner is a government
employee or otherwise serves on a governmental entity with decision -making authority (a "Public
Official") as to any rights Grantee may seek, or as to any obligations that may be imposed upon Grantee
in order to develop and/or operate the Project ("Development Rights"), and Owner hereby agrees to (I )
recuse him/herself from all such decisions related to Grantee's Development Rights unless such recusal is
prohibited by law' or is not reasonably practicable considering the obligations of such Public Official's
position and (2) recuse him/herself from all such decisions related to Grantee's Development Rights if
such recusal is required by law. If Owner is not required pursuant to (1) or (2) above to recuse
him/herself from a decision related to Grantee's Development Rights, Owner shall, in advance of any
vote or other official action on the Development Rights, disclose the existence of this Agreement (but not
the financial terms therein) at an open meeting of the relevant governmental entity Owner serves on as a
Public Official_ Additionally, if Owner is a Public Official and any of Owner's spouse, child or other
dependent has a financial interest in the Project, Owner shall disclose such relationship (but not the
financial terms thereof) at an open meeting of the relevant governmental entity Owner serves on as a
Public Official, prior to participation in any decision related to Grantee's Development Rights.
14.14 Homestead Waiver. To the fullest extent allowed by law, Owner hereby releases
and waives all rights under and by virtue of any applicable homestead exemption or similar taws as to the
leasehold interest and other rights granted hereunder. Notwithstanding the foregoing, in the event that
Owner attempts to claim any portion of the Property as a homestead under any exemption laws, Owner
agrees to (i) limit such claim to areas of the Property undeveloped and not contemplated for development
by Grantee, and (ii) limit such claim to no more area than that permitted by Colorado Revised Statutes
Sections 38-41-201 et seq. as they may be amended from time to time. Owner further agrees that if any
portion of the Property is claimed as a homestead, then, at Grantee's sole option, Owner and Grantee shall
promptly enter into an amendment to this Agreement removing the smallest portion of the Property that
may constitute homestea.d property under Colorado Revised Statutes Sections 38-41-201 et seq. from the
Property under this Agreement. In all cases, Owner and Grantee shall work together in good faith to
designate for release only that portion of the Property that is actually used and legally required as
homestead, while minimizing impact on the Project and the Facilities.
[signature page to follow]
Rev100623 16
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
IN WITNESS WHEREOF, Owner and Grantee, acting through their duly authorized
representatives, have executed this Agreement with the intent that it be effective as of the Effective Date,
and certify that they have read, understand and agree to the terms and conditions of this Agreement.
OWNER:
35321 Estate, LLC,
a Colorado limited liability company
By:
Nam�,r'3en�ffer Marie Powell
Title: Registered Agent
STATE OF e.o l or'o.&)
) ss.
COUNTY OF W e.
The foregoing instrument was acknowledged before me this ISM'— day of Dec. 20 2.3 by
Jennifer Marie Powell, as Registered Agent of 35321 Estate, LLC, a Colorado limited
liability company.
Witness my hand and official seal.
My commission expires: iVit/WeS
KEENAN HALL
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20174050791
MY COMMISSION EXPIRES DEC. 12, 2025
Notary Public
Rev1O0623 17
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Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
IN WITNESS WifERFOF, Owner and Grantee, acting through their duly authorized
representatives, have executed this Agreement with the intent that it be effective as of the Effective bate,
and certify that they have read, understand And agree to the terms and conditions of this Agreement.
Reactivate CO Development 1.1,C
a Delaware limited liability company
— tMenClgnM Fv
BY: Of a (tia
Name: aRtn
Title: president
STATE OF 11,4-1/V0 16.
COUNTY OF
The foregoing instrument was acknowledged before me this q day of 4-6120Z4by
IUe0p1 a /fi!l 1, as [ Pfcs1 dGnsr l of I /eG‘uc h gal, a � ]
Witness my hand and official seal.
My commission expires:
OFFICIAL SEAL
KHARMA L PAIGE
Notary Pudic, State of Illinois
Commission No. 660117
My Commission Expires September 20 2027
Notary Public
Rev100623
18
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
EXHIBIT A
Descri tion of the Property
APN: 080504400009
Lot B of Recorded Exemption No. 0805-04-4 RGCX 12-0095, recorded October 2, 2014 at Reception No.
40S0S91, being a portion of the South 1 !Rif of the Southeast 1/4 of Section 4, Township 6 North, Range 66
West of the 6th P.M., County of Weld, State of Colorado. Also known by street and number as Vacant Land
Parcel #080504400002, Greely, CO 80611. Also known by street and number as Vacant Land Parcel
#080504400002, Greely, CO 80631.
1 soot
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01
tls�.-'rt•�
i
i
Rev 100623
A-1
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
. _ .......w • v..v 'nor V Haar 1l rvJr I IJOKIC
EXMIIIT A
Description of the Property
APN: 080504400022
A portion of Lot B, Recorded Exemption No. 0805-04-04 RECX 1(-0176, recorded January 12, 2017 at
Reception No. 4269394, being a part of the North Half of the Southeast Quarter of Section 4, Township 4
North, Range 66 West of the 6th Principal Meridian, County of Weld, State of Colorado, described as
follows:
Commencing at the Southeast corner of Section 4, thence North 03°51 West 1267.18 feet to the Point of
Beginning; thence North 89°33' West 1,709.79 feet; thence North 13°29' East 511.99 feet; thence South
89°34'E 856.44 feet; thence North 03°55'W 327.58 feet; thence North 89°39' East 699.94 feet; thence South
03°51' East 837.35 feet to the Point of Beginning, County of Weld, State of Colorado. Also known by street
and number as 35321 County Road 31, Greely, CO 80631.
A-2
Rev 100623
1
I Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
i
I
t
EXHIBIT R
Povment Terms
In consideration for the rights provided to Grantee ander the Agreement, Grantee agrees to make
payments to Owner as follows.
1. Development Term Fees. ieginning on the Effective Date and ending upon the start of the
Construction Tenn, Grantee shall ray Owner an annual fee as follows:
a. Year 1 - $1,500
b. Year 2 $5,000
c. Year 3 - $5,000
d. Year 4 — $6,500
e. Year 5 — $6,500
These fc, are the "Development Term Fee". Payment of the Development Term Fee shall be made
annually, with the first payment due within forty-five (45) days following the Effective Date and each
subsequent payment shall be due on or before each anniversary of the Effective Date, as applicable.
2. Construction Term Fees. Upon commencement of the Construction Term and ending on the
Operations Date, Grantee shall pay owner an annual fee of Two hundred fifty Dollars and no/100 ($250.00)
per Net Acre received (the "Construction Term Fee"). Payment of the Construction Term Fee shall be
made annually, with the first payment due within forty-five (45) days following the commencement of
construction and each subsequent payment shall be due on or before each anniversary of the Construction
Term, as applicable.
3. Limited Construction Activities Fee. In the event Grantee commences any Limited
Construction Activities on the Property Grantee shall continue to make all ongoing Development Term
payments due under this Agreement plus an additional one-time payment of Five thousand Dollars and
no/100 ($5,000.00) until the start of the Construction Term.
4. Operating Fees. Beginning on the Operations Date and ending on the date on which Grantee
ceases to operate the Equipment on the Property, Grantee shall pay to Owner the below annual amounts
(collectively "Operating Fees"). Notwithstanding the above, Owner acknowledges that Grantee may build
the Project in phases and all of the Property may not be included in the initial phase or subsequent phase(s).
(a) Fixed Fee. Grantee shall pay to Owner a fixed fee of One thousand five hundred
Dollars and no/100 ($1,500.00) compounding annually at a rate of 2% (the "Fixed Fee") times the
number of Net Acres of the Project Boundary then subject to the Agreement at the Operations Date.
Net Acreage shall be determined as described in Section 1.5 of this Agreement.
(b) Payment of Operating Fees. For the first payment of Operating Fees, Grantee shall
receive a credit for any Development Term Fees and Construction Term Fees paid equal to the
proportion of such Development Term Fee and Construction Term Fee that is applicable for time
periods occurring after the Operations Date. The payment of the Fixed Fee, each calendar year
shall be made in semi-annual installments, the first semi-annual payment shall be due on or before
one hundred twenty (120) days following the Operations Date (or anniversary thereof) and the
second semi-annual payment shall be due on or before six (6) months following the Operations
Date (or anniversary thereof). Owner shall have the right to receive, upon written request, a
statement from Grantee showing the computational basis for Owner's semi-annual payments.
5. Late Payment Penalty. If Grantee fails to make any payment to Owner required of it hereunder
when due, interest shall accrue on the overdue amount, from the date of expiration of Grantee's cure period
Rev100623 B-1
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
until the date paid, at a rate equal to the sum of (i) two percent (2%) per annum; plus, (ii) the prime lending
rate as from time to time may be publisher) by 'Ilse Wall Street Journal under the "Money Rates" section;
provided, that in no event shall such total interest exceed the maximum rate permitted by law.
6. IRS Form W -y/ Property Use. Notwithstanding anything in this Agreement to the contrary,
Grantee shall have no obligation to make any payment to Owner otherwise required under this Agreement
until Owner has (i) returner) to Grantee a completed Internal Revenue Service Form W-9 (such W-9 form
to either (a) have been pmvided by Grantee to Owner prior to execution of this Agreement or (b) be
provided by Grantee to (honer promptly upon execution of this Agreement), and (ii) inserted in the table
below to the best of Owner's knowledge, the approximate acreage of the Property that is currently being
used (or has been used within the last five (S) years) for crops, pasture, forest or timber, other agricultural
use, or a non-agricultural purpose (e.g., idle land, roadways, parking lot, commercial use, etc.) If none of
the acreage falls into one of these categories, put "0" or "None".
Land Type:
Crop
Pasture
Forest or
Timber
Other
Agricultural
Use
Non-Ag Use
Acreage:
0
44.30
0
32.860
0
7. Payment Instructions. Unless otherwise indicated in the table below, all payments issued
hereunder will be paid to Owner, and if Owner is comprised of more than one person or entity, such
payments will be issued by a single check payable to all such persons or entities. If Owner elects to have
payments made as set forth in the table below, Owner and each person or entity holding record title to the
Property hereby acknowledges and agrees that all payments are legally permitted to be made as set forth in
the table below and that no other party shall have any right to such payments or to contest the payments
and allocations as set forth below. Each person receiving payment pursuant to the table below hereunder
agrees to fully indemnify, defend and hold harmless Grantee against claims and liability by any third parry
in connection with its payments hereunder to the person/entities set forth herein.
A single check should be issued payable to all persons/entities comprising Owner.
Owner.
35321 Estate, LLC
Payment Allocation:
100%
8. Crop Compensation. Grantee shall pay Owner one-time compensation for any and all portions
of the Property where permanent Facilities are not constructed that are either taken out of commercial crop
production for a season because of the construction of the Facilities, or that are removed or damaged as a
direct result of Grantee's construction of the Facilities on the Property ("Crop Damage Compensation").
Portions of the Property shall be deemed to have been taken out of commercial crop production only if the
Owner was actually farming such portions of the Property immediately prior to Grantee's commencing
construction of the Facilities on the Property. The Crop Damage Compensation shall be deemed full
compensation for any fosses of income, rent, business opportunities, profits or other losses arising out of
such Grantee construction. Crop Damage Compensation shall be equal to the fair market value of the crops
that are damaged per season. If less than one acre of Owner's cultivated crops, pasture or hay on the
Property is damaged by Grantee's activities on the Property, the applicable dollar amount per acre shall be
reduced proportionally. The Parties shall attempt, in good faith, to agree upon the extent of damage and
amount of acreage affected. If the Parties cannot agree, the Parties shall have the area measured and the
Rev 100623 B-2
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
_
extent of damage assessed by an impartial party chosen by muhial agreement of the Parties, such as a crop
k surance adjuster.
Rev 100623 B-3
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
EXHIBIT C
Form of Recording Memorandum
'see attached'.
FPO BE CONFORMED TO APPLICABLE COUNTY RECORDING REOUIREMENTSI
Rev100623 C -1
ARnP ret,"..at.... r.w.._
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
Reactivate CO Development LLC
c!o Reactivate DevCo LLC
2045 W Grand Ave. Ste R, PMD 52340
Chicago, IL 60612
ATI'N: Land Administration
THIS SPACE FOR RECORDERS USE ONLY
MEMORANDUM OF SOLAR AND STORAGE EASEMENT AGREEMENT
THIS MEMORANDUM OF SOLAR AND STORAGE EASEMENT AGREEMENT (this
"Memorandum"), is made, dated and effective as of
between (the "Effective Date"),
(together with successors assigns and heirs,
"Owner"), whose addir.ss is ,
Delaware limited liability company , and Reactivate CO Development LLC, a
whose address is 2045 W. Grand A, c. (together
MB 52340, Chicago, IL 60612,twith ers and ar to t efollowing
regard he following
1. Agreement. Ownc .,nc+ v;antee did enter into that certain SOLAR AND STORAGE
EASEMENT AGREEMENT dated
property located in (the "Agreement"), which affects the real
r_ounty, Colorado, as more Exhibit A attached hereto (the 'Prr pr_ rty"). Capital: zed terms sed and not defined particularly
e einlha a the meaning
given the same in the Agreement. g
2. Grant_ The A zt :e►„ent grants, end Owner h,.reby grants, Grantee, among other thin
exclusive right to develop an ; e,e th . 1',�nerty, including V i solar
(a) the
into electrical energy collecting ,, �• t you limitation, for (i) converting solar energy
and collectiu a .id trar st sitting the elLetr;_al energy so converted; and/or (ii) energy
storage and collecting and transmitting the el. et- .re .; ecengy so stored; (b) an exclusive easement to capture,
use and convert the unobstructed solar flux over -Inc' across the Property from all angles and from sunrise
to sunset at the property during each day of the Term, acd (c) an exclusive easement for electromagnetic,
audio, visual, glare, electrical or radio interference attributable to the Facilities or Site Activities. The
Agreement contains, among other things, certain Owner and third party use and development 'esti ictions on
the Property.
3. Purposes. The Agreement is solely and exclusively for solar energy purposes (as such term is
broadly defined, including ancillary rights related thereto and necessary for the development and operation
of Solar Facilities and/or Storage Facilities (as defined below)), and not for any other purpose, and Grantee
shall have the exclusive right to develop and use the Property for solar energy
purposes and/or enera
storage purposes and to derive all profits therefrom, including but not limited to the following activities
(collectively, "Site Activities"):
(a) Converting solar energy into electrical energy, and collecting and transmitting the
electrical energy so converted;
(b) Storing electricity and collecting and transmitting the electrical energy so stored;
(c) Determining the feasibility of energy storage, solar energy conversion and other power
generation on the Property or on adjacent lands, including studies of solar energy emitted upon,
over and across the Property and other meteorological data, environmental studies and extracting
soil samples;
(d) Constructing, laying down, installing, using, replacing, relocating, reconstructing and
removing from time to time, and monitoring, maintaining, repairing and operating the following
Rev100623
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Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
{JlJ4vvl�n G11YOgJsJ�,1 IJ. V.TiV9lIOa- INy/ C IJ:CfI" tiJ R!,r! RJ;xH_r [3
only for the benefit of the Pmject. or Pm jects (as defined below) (i) energy collection and electrical
storage equipment of any kind (the "Energy Storage Equipment"); (ii) overhead and underground
electrical distribution, collection, transmission and communications lines or cables, electric
combiners, inverters, transformers and substations, energy storage facilities, and
telecommunications equipment; (iii) roads and crane pads; (iv) control buildings, operations and
maintenance facilities and buildings; and (vi) installing, operating, maintaining, repairing and
replacing any ether improvements, whether accomplished by (irantee or a third party authorized
by Grantee., that (;rantee reasonably determines are necessary, useful or appropriate to accomplish
any of the foregoing (all of the above, including the Energy Storage F.quipment, collectively
"hnerg,v Storage Facilities").
(e) Constructing, laying down, installing, using, replacing, relocating, reconstructing and
removing from time to time, and monitoring, maintaining, repairing and operating the following
only for the benefit of the Project or Projects (3s defined below) (i) solar energy collection and
electrical generating equipment of any kind (including, without limitation, any such equipment
utilizing photovoltaic (collectively, "Solar Generating Equipment" and together with the Energy
Storage Equipment, the "Equipment"); (ii) overhead and underground electrical distribution,
collection, transmission and communications lines or cables, electric combiners, inverters,
transformers and substations, energy storage facilities, and telecommunications equipment; (iii)
roads and crane pads; (iv) meteorological measurement equipment; (v) control buildings,
operations and maintenance facilities and buildings; and (vi) installing, operating, maintaining,
repairing and replacing any other improvements, whether accomplished by Grantee or a third party
authorized by Grantee, that Grantee reasonably determines are necessary, useful or appropriate to
accomplish any of the foregoing (all of the above, including the Solar Generating Equipment,
collectively "Solar Facilities" and together with the Energy Storage Facilities, the "Facilities").
(f) The term "Project", for the purposes of the Agreement, means either (a) an integrate.('
solar energy generation system, consisting of Solar Facilities, which is constructed and operated on
the Property, and/or adjacent lands, by Grantee, or a third party authorized by Grantee, and/or (b)
an integrated battery storage system, consisting of Energy Storage Facilities, which is constructed
and operated on the Property, and/or adjacent lands, by Grantee, or a third party authorized by
Grantee. Grantee may determine whether any particular group of Facilities constitutes a single
Project or multiple Projects for purposes of the Agreement, and in the case of multiple Projects,
which portion of the Property shall be included within each Project.
4. Grant of Additional Easements. Owner hereby grants, conveys and warrants to Grantee the
following additional easements upon, over, across and under the Property, and is owned or controlled by
Owner, as of the Effective Date:
(a) Solar Easement. An exclusive "Solar Easement" in the Property to prevent measurable
diminishment in output from the Project due to obstruction of the sunlight across the Property.
Without limiting the generality of the foregoing, Owner hereby grants and conveys to Company an
exclusive easement on, over and across the Property for direct sunlight to any "Solar Energy
Device" on the Property, as defined in C.R.S. § 38-32.5-100.3(2), throughout the entire Property to
and for the benefit of the area existing horizontally three hundred and sixty degrees (360°) from
any point where any Solar Energy Device is or may be located at any time from time to time (each
such point referred to as a "Site") and for a distance from each Site to the boundaries of the Property,
together vertically through all space located above the surface of the Property, that is, one hundred
eighty degrees (180°) or such greater number or numbers of degrees as may be necessary to extend
from each point on and along a line drawn along the surface from each point along the exterior
boundary of the Property through each Site to each point and on and along such line to the opposite
exterior boundiery of the Property. Neither Owner nor any person claiming through or authorized
Rev100623 C-3
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lout."YJIalI CIOU.IU VOo-c r C -a 77.77r tr;f. I Ir ..I
by Owner shall (i) engage in any activity on the Pmperty (whether by planting trees or other
vegetation, constructing buildings or other structures, exploiting or preparing to exploit the
subsurface property rights or otherwise) that obstnrcts or impairs the availability of sunlight to the
Property; or (ii) engage in any activity which would cause the introduction of excessive dust for
continued and prolonged periods of time onto the Pmperty;
(b) Interference. An exclusive casement for electromagnetic, audio, visual, view, light,
noise, vibration, electricnl, radio interference, or other effects attributable to the Solar Generating
Equipment, Energy Storage Equipment, the Project or any Site Activities;
(c) Access i:,asement. A non-exclusive easement for ingress to and egress from the Project
or Projects (whether located on the Property, on adjacent property or elsewhere) over and across
the Property by means of mads and lanes thereon if existing or later constructed by Owner, or
otherwise by such mute or mutes as Grantee may construct from time to time;
(d) Other Easements. All other easements reasonably necessary to accomplish the
activities permitted by the Agreement, including without limitation, generation -tie and transmission
line easements, utility casements (including underground and above -ground gas, electricity, water,
and telephone), drainage casements, and geotechnical and environmental testing and sampling
easements.
5. Term. The term of the Agreement shall commence on the Effective Date and continue for the
following described periods (collectively, the "Term"):
(a) Development Term. The Agreement shall be for an initial term (the "Development
Term") commencing on the Effective Date and continuing until the earlier to occur of (a) Sixty
(60) months following the Effective Date or (b) the commencement of construction, however, the
Development Term shall not expire due to the Limited Construction Activities. During the
Development Term, Grantee shall have the right to enter the Property to investigate and determine
the feasibility of obtaining entitlements, utility meters, interconnection points, and other
agreements for Grantee's proposed solar and/or energy storage development. Grantee shall be
permitted to inspect the Property and take such measurements, recordings and photographs, and
conduct such surveys and environmental, engineering, mechanical, structural, biological, cultural,
geotechnical, archaeological and other similar tests and studies, all as Grantee shall reasonably
require to assess the suitability of the Property for the Facilities.
(b) Commencement of Construction. The terms "commencing construction" and
"commencement of construction" as used herein shall mean that date on which Grantee begins
grading of the Property for the installation of the Solar Facilities and/or the Energy Storage
Facilities, provided, however, upon prior consultation with Owner in which Grantee provides (i)
reasonable detail sufficient to establish the necessity for limited construction activities to begin on
the Property to satisfy the requirements of an investment tax credit as that term is defined by the
regulations of the Internal Revenue Service, and (ii) a written proposal detailing the nature and
scope of the specific construction activities Grantee intends to undertake ("Limited Construction
Activities"), Grantee may perform such Limited Construction Activities on the Property without
triggering the commencement of construction as defined in the Agreement.
(c) Limited Construction Activities. During any period in which Grantee is performing
Limited Construction Activities, Grantee shall be required to (a) make all ongoing Development
Term payments due under the Agreement plus the additional payment described in Exhibit B
herein; and (b) make all applicable surface damage and Crop Compensation payments arising from
the Limited Construction Activities. If, at any time during Grantee's Limited Construction
Activities on the Property, Grantee determines that its activities materially exceed the written scope
Rev10062? C-4
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_.., a..,.. .. ,. ___
of work originally provided to (honer, grantee shall determine and notify Owner of such date when
the Construction Term begins.
(d) Construction 1 eror. l loon the expiration of the Development "Term, the term of the
Agreement shall nutomatienity extend and continue ("Construction Term") until the earlier to occur
of: (a) the date on which Grantee begins production of electrical energy generated by substantially
all of the Solar Generating Equipment to be included in the Project or (b) the commercial operations
date of any Project (or portion of a Project) consisting entirely of Energy Storage Equipment; or
(d) the Eighth ,(8th) anniversary of the Effective Date. Upon the occurrence of either subsection
(a) or (b), that date, as declared by Grantee, is hereinafter referred to as the "Operations Date."
(e) First Extended Term. Upon the expiration of the Construction Term, the term of the
Agreement shall automatically extend for an additional Thirty-five (35) year term (the "First
Extended Term").
(f) Second Extended Term. Provided that Grantee has not fully surrendered or terminated
the Agreement, then on or before the expiration of the First Extended Term, Grantee may, at its
option, extend the term of the Agreement for an additional Five (5) year period (the "Second
Extended Term"). Provided that Grantee has not fully surrendered or terminated the Agreement,
then on or before the expiration of the Second Extended Term, Grantee may, at its option, extend
the term of the Agreement for an additional Five (5) year period (the "Third Extended Term").
Grantee may exercise its option to extend the Agreement for the Extended Terms by giving Owner
written notice thereof on or before the date that is one hundred and eighty (180) days prior to the
expiration of the previous Extended Term.
6. No Interference. Owner's activities and any grant of rights Owner makes to any person or
entity, shall not, currently or prospectively, disturb or interfere with: the construction, installation,
maintenance, or operation of the Facilities, whether located on the Property or elsewhere; access over the
Property to such Facilities; any Site Activities; or the undertaking of any other activities permitted
hereunder. Without limiting the generality of the foregoing, Owner shall not erect any structures, plants
or other equipment, or enter into any third party agreements or amend or extend any existing agreements
("Third Party Agreements") or undertake any other activities (an "Owner Action" or collectively the
"Owner Actions") that may: (i) interfere with Grantee's right to install Facilities on any portion of the
Property, (ii) potentially cast a shadow onto the Solar Facilities, (iii) cause a decrease in the output or
efficiency of any Facilities, (iv) interrupt the flux of solar energy upon, across and over any portion of the
Property used or to be used by the Solar Facilities, or (v) otherwise interfere with Grantee's operations on
the Property (each an "Interference"). Prior to undertaking an Owner Action, that may cause an
Interference, Owner shall consult with Grantee to confirm that such Owner Action will not cause any
Interference. If Grantee reasonably determines the Owner Action could cause an Interference, then Owner
shall not be permitted to undertake such Owner Action. Owner shall not disturb or, to the extent permitted
by applicable law, permit the disturbance of the subsurface such that may impact in any way the structural
integrity or the operations and maintenance of the Facilities. Further, notwithstanding the foregoing, Owner
agrees that it will notify Grantee in writing within ten (10) days after it receives any notice of mineral
exploration or development in, on, or under the Property, and such notice shall include a copy of any
documents and information provided to Owner in relation to the notice. Owner and Grantee shall cooperate
in good faith and work jointly as to, and each party shall be permitted to participate in, any (i) response to
any such notification; (ii) negotiation with any mineral rights holder, including without limitation
acceptance or rejection of any surface use and compensation proposal and/or entry into any surface use and
compensation agreement to Grantee's satisfaction; (iii) enforcement of the rights of the surface owner as
set forth in the Surface Owner Protection Act, including without limitation recovery of costs and attorneys'
fees and (iv) pursuit of compensation for damages associated with mineral exploration and development in,
on or under the Property. Grantee shall have the right to trim existing trees to maintain approximately their
Rev100623
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C-5
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
same height and width as exists as of the date hereof for the purpose of not interfering with the flux of solar
energy from any angle upon, across and over the Property. Owner a acquire or otherwise participate in any solar or ere 8�s not to develop, co -develop,
output in excess of 500 kilowatts within any area that is five ((5) miles of he project or Project. an aggregate
7. Assignment.
(a) Collateral Assignments. Grantee shall have the absolute right in its sole and exclusive
discretion, without obtaining the consent of Owner, to finance, mortgage, encumber, hypothecate
pledge or transfer to one or more Mortgagees any and all of the rightser, ' uding
the easements granted in Section 2, and/or any or all rights or interests of Grantee nn thePropertyor in any or all of the facilities.
(b) Non -Collateral Assignments. Grantee shall have the right, without the prior consent
of (honer, to sell, convey, assign or tnsfer (including
subeasements) any or all of its rights hereunder in and toanyor alnting l of he Property to easements,
ovided such
transfer is related to a Project. Grantee shall be relieved of all of its obligations arising g under the
Agreement, as to all or such portion of its interests in the Property transferred, from and after the
effective date of such transfer, provided such rights and obligations have been assumed by such
transferee.
(c) Acquisition of Interest. The acquisition of all interests, or any portion of interest, in
Grantee by another person shall not require the consent of
provision of the Agreement and Owner shall recognize the me or constitute a breach any
person as Grantee's proper successany
8. Rights of Mortgagee. Pursuant to the Agreement, any Mortgagee of Grantee or Grantee's
assignees has certain rights regarding notice and right to cure any default of Grantee under the Agreement,
and the right to take possession of the Property, and to acquire the leasehold estate and the easement
interests by foreclosure, as well as other rights as set forth in the Agreement.
9. Ownership. Owner shall have no ownership, lien, security or other interest in any Facilities
installed on the Property, or any profits derived therefrom, and Grantee may remove any or all Facilities at
any time.
10. Termination Right.
(a) Grantee shall have the right to terminate the Agreement as to all or any part of the
Property at any time and without cause, effective upon written notice to Owner from Grantee.
(b) Upon termination of the Agreement, Grantee shall, as soon as practicable thereafter,
but not later than twelve (12) months after the termination, remove above -ground and below -
ground (to a depth of three (3) feet below grade) Facilities from the Property, (the "Remediation
Term"), without additional charge or rental for such entry and removal, and without such entry
constituting a holdover. All Property disturbed b t
ee shall be reasonably similar to its original condition as it existed upon Effective red to a condition
Date.
p
11. Miscellaneous.
(a) This Memorandum does not supersede, modify,
conditions or covenants of the Agreement, and Owner and Grantee executed
and arrearecordinthe e this
Memorandum for the purposes set forth herein and for providing constructive notice of the
Agreement and Grantee's rights thereunder and hereunder. The terms, conditions and covenants
of the Agreement are set forth at length in the Agreement and are incorporated herein by reference
as though fully set forth herein. This Memorandum shall not, in any manner or form whatsoever,
alter, modify or vary the terms, covenants and conditions of the Agreement.
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(b) This Memorandum shall also bind and benefit, as the cage may be, the heirs, legal
representatives, assigns and successors of the respective parties hereto, and all covenants,
conditions and agreements contained herein shall be construed as covenants running with the land
to the extent consistent with applicable law.
(c) This Memorandum may be executed in counterparts, each of which shall be deemed
an original and all of which when taken together shall constitute one and the same document
rsignatum page to follow]
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rut d-437E-B99F-5#09F 11-158E
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IN WITNESS WHEREOF, the parties have executed this Memorandum to be effective as of ate
date first written above.
aER: 5`3x1 estale lu_c..
Name Pew[Jfy'
Entity [ A Cotorah, L:04.4 Ioal*t41
- ce"P°7 4
By:
Name
Title:
OR [DELETE ONEI
/Individual only]
By:
(Name]
Rev 100623 C_8
•
R. 1 _ "7..
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-•••‘••
Ru_Er x:
Reactivate CO Development LLC,
a Delaware limited liability company
13y:
Name:
'title:
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DocuSipn Erwebpe ID: 0946906&70EB-497E-899E-51D9F 1O5AEF-6
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
ACKNOWLEDGMENT OF OWNER
STATE OF FLORIDA )
) ss.
COUNTY OF GRANGE )
The foregoing instrument W,15 acknowledged before me by means of IZ4 physical presence
or O online notarization this Is N' r'ay f pta 20 27 by fr",c,i x,k,(0,,A, as [goltlea4 Aga►1 ] of
353iEsa.. 4Is6Ekra [4•147:4,4,4,14"`14 ;+� wl,a r:oduced (,,_leb�d. Dries ��se. 1 as form of
ISA
ident dtion.
KEENAN HALL
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20174050791
MY COMMISSION EXPIRES DEC. 12, 2025
Signatu e o' rotary Public - State of Florida Crbloom&
kee-rto." 140.11
Prini, Typ or Stamp Commissioned Name of
Notary Public
STATE OF
ACKNOWLEDGMENT OF GRANTEE
COUNTY OF
) ss.
The foregoing instrument was acknowledged r c o; a me this = - day of _ 20_ by
r 1,asf lofL L2I ]
Witness my hand and official s, al
My commission expires:
Notary Public
Rev100623 C-9
Docusign Envelope ID: B1471496-B8B8-4E05-AF62-C127E3B14E3F
EXHIBIT A to the Easement Memorandum
Description (gibe Property
[ENTER ',EGA'. DESCRIPTIUN1
Rev100623 A-1
DocuSign Envelope ID: 09469088-70EB-497E-B99F-51 D9F1 D58EF6
After recording return to:
Reactivate CO Development LLC
c/o Reactivate DevCo LLC
2045 w Grand Ave. Ste B, PNIB 52340
Chicago, l^L, 60612
ATTN: Land Administration
THIS SPACE FOR REORDERS USE ONLY
MEMORANDUM OF SOLAR AND STORAGE EASEMENT AGREEMENT
THIS MEMORANDUM OF SOLAR AND STORAGE EASEMENT AGREEMENT (this
"Memorandum"), is made, dated and effective as of tS Z (the "Effective Date"),
% 3
between 35321 Estate, LLC, a Colorado limited liability company (together with its successors, assigns
and heirs, "Owner"), whose address is 35321 County Road 31, Greely, Co 80631-9311, and Reactivate
CO Development LLC, a Delaware limited liability company (together with its transferees, successors and
assigns, "Grantee"), whose address is 2045 w Grand Ave. Ste B, PMB 52340, Chicago, IL 60612, with
regard to the following:
1. Agreement. Owner and Grantee did enter into that certain SOLAR AND STORAGE
EASEMENT AGREEMENT dated 12/15/23 (the "Agreement"), which affects the real
property located in 'Veld County, Colorado, as more particularly described in Exhibit A attached hereto
(the "Property"). Capitalized terms used and not defined herein have the meaning given the same in the
Agreement.
2. Grant. The Agreement grants, and Owner hereby grants, Grantee, among other things, (a)
the exclusive right to develop and use the Property, including, without limitation, for (0 converting solar
energy into electrical energy and collecting and transmitting the electrical energy so converted; and/or (ii)
energy storage and collecting and transmitting the electrical energy so stored; (b) an exclusive easement to
capture, use and convert the unobstructed solar flux over and across the Property from all angles and from
sunrise to sunset at the Property during each day of the Term; and (c) an exclusive easement for
electromagnetic, audio, visual, glare, electrical or radio interference attributable to the Facilities or Site
Activities, The Agreement contains, among other things, certain Owner and third party use and development
restrictions on the Property.
3. Purposes. The Agreement is solely and exclusively for solar energy purposes (as such term
is broadly defined, including ancillary rights related thereto and necessary for the development and
operation of Solar Facilities and/or Storage Facilities (as defined below)), and not for any other purpose,
and Grantee shall have the exclusive right to develop and use the Property for solar energy purposes and/or
energy storage purposes and to derive all profits therefrom, including but not limited to the following
activities (collectively, `Site Activities"):
(a) Converting solar energy into electrical energy, and collecting and transmitting the
electrical energy so converted;
(b) Staring electricity and collecting and transmitting the electrical energy so stored;
(c) Determining the feasibility of energy storage, solar energy conversion and other
power generation on the Property or on adjacent lands, including studies of solar energy emitted
upon, over and across the Property and other meteorological data, environmental studies and
extracting soil samples;
Rev 100623 C-1
DocuSign Envelope ID: 09469088-70EB-497E-B99F-51 D9F1 D58EF6
(d) Constructing, laying down, installing, using, replacing, relocating, reconstructing
and removing from time to time, and monitoring, maintaining, repairing and operating the
following only for the benefit of the Project or Projects (as defined below) (i) energy collection and
electrical storage equipment of any kind (the "Energy Storage Equipment"); (ii) overhead and
underground electrical distribution, collection, transmission and communications lines or cables,
electric combiners, inverters, transformers and substations, energy storage facilities, and
telecommunications equipment; (iii) roads and crane pads; (iv) control buildings, operations and
maintenance facilities and buildings; and (vi) installing, operating, maintaining, repairing and
replacing any other improvements, whether accomplished by Grantee or a third party authorized
by Grantee, that Grantee reasonably determines are necessary, useful or appropriate to accomplish
any of the foregoing (all of the above, in.cludin.g the Energy Storage Equipment, collectively
"Energy Storage Facilities").
(e) Constructing, laying down, installing, using, replacing, relocating, reconstructing
and removing from tine to time, and monitoring, maintaining, repairing and operating the
following only for the benefit of the Project or Projects (as defined below) (i) solar energy collection
and electrical generating equipment of any kind (including, without limitation, any such equipment
utilizing photovoltaic (collectively, "Solar Generating Equipment" and together with the Energy
Storage Equipment, the `Equipment"); (ii) overhead and underground electrical distribution,
collection, transmission and communications lines or cables, electric combiners, inverters,
transformers and substations, energy storage facilities, and telecommunications equipment; (iii)
roads and crane pads; (iv) meteorological measurement equipment; (v) control buildings,
operations and maintenance facilities and buildings; and (vi) installing, operating, maintaining,
repairing and replacing any other improvements, whether accomplished by Grantee or a third party
authorized by Grantee, that Grantee reasonably determines are necessary, useful or appropriate to
accomplish any of the foregoing (all of the above, including the Solar Generating Equipment,
collectively "Solar Facilities" and together with the Energy Storage Facilities, the "Facilities").
(f) The term "Project", for the purposes of the Agreement, means either (a) an
integrated solar energy generation system, consisting of Solar Facilities, which is constructed and
operated on the Property, and/or adjacent lands, by Grantee, or a third party authorized by Grantee,
and/or (b) an integrated battery storage system, consisting of Energy Storage Facilities, which is
constructed and operated on the Property, and/or adjacent lands, by Grantee, or a third party
authorized by Grantee. Grantee may determine whether any particular group of Facilities
constitutes a single Project or multiple Projects for purposes of the Agreement, and in the case of
multiple Projects, which portion of the Property shall be included within each Project.
4. Grant of ,Additional Easements. Owner hereby grants, conveys and warrants to Grantee
the following additional easements upon, over, across and under the Property, and is owned or controlled
by Owner, as of the Effective Date:
(a) Solar Easement. An exclusive "Solar Easement" in the Property to prevent
measurable diminishment in output from the Project due to obstruction of the sunlight across the
Property. Without limiting the generality of the foregoing, Owner hereby grants and conveys to
Company an exclusive easement on, over and across the Property for direct sunlight to any "Solar
Energy Device" on the Property, as defined in C.R.S. § 38-32.5-100.3(2), throughout the entire
Property to and for the benefit of the area existing horizontally three hundred and sixty degrees
(360°) from any point where any Solar Energy Device is or may be located at any time from time
to time (each such point referred to as a "Site") and for a distance from each Site to the boundaries
of the Property, together vertically through all space located above the surface of the Property, that
is, one hundred eighty degrees (180°) or such greater number or numbers of degrees as may be
necessary to extend from each point on and along a line drawn along the surface from each point
Rev100623 C-2
uocuSign Envelope ID: 09469088-70EB-497E-B99F-51 D9F1 D58EF6
along the exterior boundary of the Property through each Site to each point and on and along such
line to the opposite exterior boundary of the Property. Neither Owner nor any person claiming
through or authorized by Owner shall (0 engage in any activity on the Property (whether by planting
trees or other vegetation, constructing buildings or other structures, exploiting or preparing to
exploit the subsurface property rights or otherwise) that obstructs or impairs the availability of
sunlight to the Property; or (ii) engage in any activity which would cause the introduction of
excessive dust for continued and prolonged periods of time onto the Property;
(b) Interference. An exclusive easement for electromagnetic, audio, visual, view,
light, noise, vibration, electrical, radio interference, or other erects attributable to the Solar
Generating Equipment, Energy Storage Equipment, the Project or any Site Activities;
(c) Access Easement. A non-exclusive easement for ingress to and egress from the
Project or Projects (whether located on the Property, on adjacent property or elsewhere) over and
across the Property by means of roads and lanes thereon if existing or later constructed by Owner,
or otherwise by such route or routes as Grantee may construct- from time to time;
(d) Other Easements. All other easements reasonably necessary to accomplish the
activities permitted by the Agreement, including without limitation, generation -tie and transmission
line easements, utility easements (including underground and above -ground gas, electricity, water,
and telephone), drainage easements, and geotechnical and environmental testing and sampling
easements.
5. Term. The term of the Agreement shall commence on the Effective Date and continue for
the following described periods (collectively, the "Terns,
(a) Development Term. The Agreement shall be for an initial term (the "Development
Term") commencing on the Effective Date and continuing until the earlier to occur of: (a) Sixty,
(60) months following the Effective Date or (b) the commencement of construction, however, the
Development Tenn shall not expire due to the Limited Construction Activities. During the
Development Term, Grantee shall have the right to enter the Property to investigate and determine
the feasibility of obtaining entitlements, utility meters, interconnection points, and other
agreements for Grantee's proposed solar and/or energy storage development. Grantee shall be
permitted to inspect the Property and take such measurements, recordings and photographs, and
conduct such surveys and environmental, engineering, mechanical, structural, biological, cultural,
geotechnical, archaeological and other similar tests and studies, all as Grantee shall reasonably
require to assess the suitability of the Property for the Facilities.
(b) Commencement of Construction. The terms "commencing construction" and
"commencement of construction" as used herein shall mean that date on which Grantee begins
grading of the Property for the installation of the Solar Facilities and/or the Energy Storage
Facilities, provided, however, upon prior consultation with Owner in which Grantee provides (i)
reasonable detail sufficient to establish the necessity for limited construction activities to begin on
the Property to satisfy the requirements of an investment tax credit as that term is defined by the
regulations of the Internal Revenue Service, and (ii) a written proposal detailing the nature and
scope of the specific construction activities Grantee intends to undertake ("Limited Construction
Activities"), Grantee may perform such Limited Construction Activities on the Property without
triggering the commencement of construction as defined in the Agreement.
(c) Limited Construction Activities. During any period in which Grantee is
performing Limited Construction Activities, Grantee shall be required to (a) make all ongoing
Development Term payments due under the Agreement plus the additional payment described in
Exhibit B herein; and (b) make all applicable surface damage and Crop Compensation payments
Rev100623 00623 C_3
uucuJign cnveiope iu: U94b9U88-70EB-497E-B99F-51 D9F1 D58EF6
arising from the Limited Construction Activities. If, at any time during Grantee's Limited
Construction Activities on the Property, Grantee determines that its activities materially exceed the
written scope of work originally provided to Owner, Grantee shall determine and notify Owner of
such date when the Construction Term begins.
(d) Construction Term. Upon the expiration of the Development Term, the term of
the Agreement shall automatically extend and continue ("Construction Term") until the earlier to
occur of: (a) the date on which Grantee begins production of electrical energy generated by
substantially all of the Solar Generating Equipment to be included in the Project or (b) the
commercial operations date of any Project (or portion of a Project) consisting entirely of Energy
Storage Equipment; or (d) the Eighth Oth) anniversary of the Effective Date. Upon the occurrence
of either subsection (a) or (b), that date, as declared by Grantee, is hereinafter referred to as the
"Operations Date."
(e) First Extended Term. Upon the expiration of the Construction Term, the term of
the Agreement shall automatically extend for an additional Thirty-five (35) year term (the "First
Extended Term").
(0 Second Extended Term. Provided that (grantee has not fully surrendered or
terminated the Agreement, then on or before the expiration of the First Extended Terra, Grantee
may, at its option, extend the term of the Agreement for an additional Five (5) year period (the
"Second Extended Term"). Provided that Grantee has not fully surrendered or terminated the
Agreement, then on or before the expiration of the Second Extended Term, Grantee may, at its
option, extend the term of the Agreement for an additional Five_ (5) year period (the "Third
Extended Term"). Grantee may exercise its option to extend the Agreement for the Extended Terms
by giving {owner written notice thereof on or before the date that is one hundred and eighty (180)
days prior to the expiration of the previous Extended Term.
6. No Interference. Owner's activities and any grant of rights Owner makes to any person
or entity, shall not, currently or prospectively, disturb or interfere with: the construction, installation,
maintenance, or operation of the Facilities, whether located on the Property or elsewhere; access over the
Property to such Facilities; any Site Activities; or the undertaking of any other activities permitted
hereunder. Without limiting the generality of the foregoing, Owner shall not erect any structures, plants
or other equipment, or enter into any third party agreements or amend or extend any existing agreements
("Third Party Agreements") or undertake any other activities (an "Owner Action" or collectively the
"Owner Actions") that may: (i) interfere with Grantee's right to install Facilities on any portion of the
Property, (ii) potentially cast a shadow onto the Solar Facilities, (iii) cause a decrease in the output or
efficiency of any Facilities, (iv) interrupt the flux of solar energy upon, across and over any portion of the
Property used or to be used by the Solar Facilities, or (v) otherwise interfere with Grantee's operations on
the Property (each an "Interference"). Prior to undertaking an Owner Action, that may cause an
Interference, Owner shall consult with Grantee to confirm that such Owner Action will not cause any
Interference. If Grantee reasonably determines the Owner Action could cause an Interference, then Owner
shall not be permitted to undertake such Owner Action. Owner shall not disturb or, to the extent permitted
by applicable law, permit the disturbance of the subsurface such that may impact in any way the structural
integrity or the operations and maintenance of the Facilities. Further, notwithstanding the foregoing, Owner
agrees that it will notify Grantee in writing within ten (lo) days after it receives any notice of mineral
exploration or development in, on, or under the Property, and such notice shall include a co of
copy any
documents and information provided to Owner in relation to the notice. Owner and Grantee shall cooperate
in good faith and work jointly as to, and each party shall be permitted to participate in an i response to
p p i Y() P
any such notification; (ii) negotiation with any mineral rights holder, including without limitation
acceptance or rejection of any surface use and compensation proposal and/or entry into any surface use and
compensation agreement to Grantee's satisfaction; (iii) enforcement of the rights of the surface owner as
Rev100623 Ceit
uucuoign envelope iu: uy4buutsts NEti-497E-B99F-51 D9F1 D58EF8
set forth in the Surface Owner Protection Act, including without limitation recovery of costs and attorneys'
fees and (iv) pursuit of compensation for damages associated with mineral exploration and development in,
on or under the Property. Grantee shall have the right to trim existing trees to maintain approximately their
same height and width as exists as of the date hereof for the purpose of not interfering with the flux of solar
energy from any angle upon, across and over the Property. Owner agrees not to develop, co -develop,
acquire or otherwise participate in any solar or energy storage related project or projects with an aggregate
output in excess of Soo kilowatts within any area that is within five (5) miles of the Project.
7. Assignment.
(a) Collateral Assignments. Grantee shall have the absolute right in its sole and
exclusive discretion, without obtaining the consent of Owner, to finance, mortgage, encumber,
hypothecate, pledge or transfer to one or more Mortgagees any and all of the rights granted
hereunder, including the easements granted in Section 2, and/or any or all rights or interests of
Grantee in the Property or in any or all of the Facilities.
(b) Non -Collateral Assignments. Grantee shall have the right, without the prior
consent of Owner, to sell, convey, assign or transfer (including granting co -easements, separate
easements, subeasements) any or all of its rights hereunder in and to any or all of the Property
provided such transfer is related to a Project. Grantee shall be relieved of all of its obligations
arising under the Agreement, as to all or such portion of its interests in the Property transferred,
from and after the effective date of such transfer, provided such rights and obligations have been
assumed by such transferee.
(c) Acquisition of Interest. The acquisition of all interests, or any portion of interest,
in Grantee by another person shall not require the consent of Owner or constitute a breach of any
provision of the Agreement and Owner shall recognize the person as Grantee's proper successor.
S. Rights of Mortgagee. Pursuant to the Agreement, any Mortgagee of Grantee or grantee's
assignees has certain rights regarding notice and right to cure any default of Grantee under the Agreement,
and the right to take possession of the Property, and to acquire the leasehold estate and the easement
interests by foreclosure, as well as other rights as set forth in the Agreement.
9. Ownership. Owner shall have no ownership, lien, security or other interest in any Facilities
installed on the Property, or any profits derived therefrom, and Grantee may remove any or all Facilities at
any time.
10. Termination Right.
(a) Grantee shall have the right to terminate the Agreement as to all or any part of the
Property at any time and without cause, effective upon written notice to Owner from Grantee.
(b) Upon termination of the Agreement, Grantee shall, as soon as practicable
thereafter, but not later than twelve (12) months after the termination, remove above -ground and
below -ground (to a depth of three (3) feet below grade) Facilities from the Property (the
"R.ernediation Term"), without additional charge or rental for such entry and removal, and without
such entry constituting a holdover. All Property disturbed by Grantee shall be restored to a
condition reasonably similar to its original condition as it existed upon the Effective Date.
11. Miscellaneous.
(a) This Memorandum does not supersede, modify, amend or otherwise change the
terms, conditions or covenants of the Agreement, and Owner and Grantee executed and are
recording this Memorandum for the purposes set forth herein and for providing constructive notice
of the Agreement and Grantees rights thereunder and hereunder. The terms, conditions and
Rev 100623 C-5
uocUNgn tnveiope U9469088-70EB-497E-B99F-51 D9F1 D58EF6
covenants of the Agreement are set forth at length in the Agreement and are incorporated herein by
reference as though fully set forth herein. This Memorandum shall not, in any manner or form
whatsoever, alter, modify or vary the terms, covenants and conditions of the Agreement.
(b) This Memorandum shall also bind and benefit, as the case may be, the heirs, legal
representatives, assigns and successors of the respective parties hereto, and all covenants,
conditions and agreements contained herein shall be construed as covenants running with the land
to the extent consistent with applicable law.
(c) This Memorandum may be executed in counterparts, each of which shall be
deemed an original and all of which when taken together shall constitute one and the same
document.
[signature page to follow]
Rev1 00623 G-6
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IN Wil' ESS WHEREOF, the parties have executed this Memorandum to be effective as of the
date fiat written above.
OWNER:
35321 Estate, LLC, a Colorado limited
liability company
By:
AstAiiseece
NamennifMarie Powell
Title: Registered Agent
By:
Name: Utopi a Hi
Title: President
GRANTEE:
Reactivate CO Development LLC,
a Delaware lunited liability company
DocuS�gned by:
Uftritt
Rev10o623
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ACI NOWLEDGMENT OF OWNER
cotor�t Krt
STATE OF FLORIDA
ss.
COUNTY OF C3R4N£E
Well gaff
•
The foregoing instrument was acknowledged before me by means of Ci physical presence
or 0 online notarization this day of vett 20 Z3 by Jennifer Marie Powell, as Registered
Agent of 35321 Estate, LLC, a Colorado limited liability company, who produced O3/4. colortmio
Davos L'avise. as form of identification.
KEENAN HALL
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20174050791
MY COMMISSION EXPIRES DEC. 12, 2025
Signature of Notary Public State of Colorpodio
IGeenu•, HoOt
Print, Type, or Stamp Commissioned Name of
No Public
ACKNOWLEDGMENT OF GRANTEE
STATE OF tl,LINDlS }
} ss.
COUNTY OF C 001L
The foregoing inshvment was acknowledged before me this y --Oday of Qv! 20 Zgby
r ufropia ihal, as f Pastraftembri of [ kat t lafrel, a [ LLC Company 1 -
Witness my hand and official seat.
My commission expires: frn7/2 �
OFFICIAL SEAL.
KHARMA L PAIGE
Notary Public, State of Minois
Commission No. 660127
My Commission Expires September 20, 2027
Notary Public
Rev100623
00623
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EXHIBIT A to the Easement Memorandum
Description of the Property
AIN: 080504400009
Lot E of Recorded Exemption No. 0805.04-4 RECX 12-0095, recorded October 2, 2014 at Reception No,
4050591# being a portion of the South Half of the Southeast 1/4 of Section 4, Township 6 North, Range
66 West of the 6th P.M., County of Weld, State of Colorado. Also known by street and number as vacant
Land Parcel ##080504400002, Creely, CO 80631. Also known by street and number as vacant Land
Parcel ##080504400002, Creely, CO 80631.
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.y�y :.;`.�� C ".. ^'+i .1 �i '... `..._-F,-.i�.�� a�'.:•.1.'.: 1: �Ir.,.t?�..�
'R'�i.•'.�g.WaiIk la*44. -41aCe e.k. s?F� SYT*�;:ntite:Or. t:gn .. •
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IT A to the Easement Memorandu
Desedi tf an of the Preopertt
•A.PN: 080504400022
A portion of Lot B, Recorded Exempfion Not. 0805®04-04 RECX16-0176, recorded January 12, 2017 at
Reception No. 4269394, being a part of the North Half of the Southeast Q rter of Section 4, T own.shi 4
North, Range 66 west of the 6th Principal Meridian, County of Weld, State of Cororateo, described as
follows:
Commencing at the Southeast corner of Section 4, thence Nora 03'51 West 1267018 feet tthe Paint of
Beginnings thence North 89°33' west 1,709.79 feet; hence North 13°29' East 511.99 feet; thence Song
8943341E 856044 feet; the: ce North 03°55'W 327.5.8 feet; thence North 39°39' East 699.94 feet; thence
South 03°51' East 83 7.3 5 feet to the Point of Beginning, County of weld, Sete of Colorado. Also known
by street and number as 35321 County Road 31, Greely, CO 80631.
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;:; Reactivate
An Invenergy Company
Surface Use Statement
Reactivate is aware of the requirement to investigate sub -surface agreements and
obtain the required surface -use agreements on the site in order to acquire a permit for the
project. At the time of submittal (9/23/24), Reactivate has engaged in mineral title search
which provided information on two sub -surface owners. Upon further discussion and
consulting with a Title Examiner, it was confirmed that no mineral leases currently existing
in the project area. Reactivate intends to pursue surface -use agreements with the sub-
surface owners and will confirm any updates with Weld County as received.
;:; Reactivate
An Invenergy Company
Utility Interconnection
Reactivate is a community solar energy facility developer. The interconnection
process for community solar varies from requirements that are within utility -scale solar
projects. As a community solar company, we aim to connect to the electrical grid at the
distribution level lines (12.5kV in this case). Connecting to this lower voltage is a much
less onerous interconnection process than connecting to higher voltage lines. We will still
seek an interconnection agreement, but that process is expected to take 3-6 months. The
first step for the distribution level voltage connection is to do a pre -app with Xcel energy. At
the time of application for the USR permit, Reactivate has performed pre -application with
the utility and received preliminary capacity results from Xcel on 03/19/2024. Please see
attached for evidence that we are through the pre -application step and there is adequate
capacity for us to connect this project at this location. See Exhibit A
Exhibit A
0 lice!'
Energy
RESPONSIBLE BY NATURE"'
9/12/2024
Colorado Distributed Energy Resources Interconnection Process
Level 2 Review Results
*Confidential - Customer: RDC CO WELD COUNTY RS 72 II
Case # 5844135
*Confidential* - Address: 14991 County Road 72, CO 80631
DER Application Size: 4,950.00 kVA
Proposed Export Size: 4,950.00 kVA
Interconnection Feeder: EATO2001
DER Active on Feeder:
DER in Queue on Feeder:
950.76 kW
46.47 kW
Substation: Eaton
DER Active on Substation: 950.76 kW
DER in Queue on Substation: 46.47 kW
Confidentiality:
As described in CCR Section 3853 (k), confidential information shall mean any confidential and/or proprietary
information provided by one Party to the other Party that is clearly marked or otherwise designated "Confidential."
Each Party receiving Confidential Information shall hold such information in confidence and shall not disclose it to
any third party nor to the public without the prior written authorizaion from the Party providing that information. Xcel
Energy's internal policy categorizes Confidential Information as including information where unauthorized
disclosure has the potential to cause a negative impact to the grid, the Company, and/or its customers. The
information marked as "Confidential" in this report is non-public information that Xcel Energy has protected to
reduce the potential security risks to the grid and our customers.
Summary of Results:
This project does not qualify for either the Level 1 or Level 2 Fast Track Process and will need to proceed to the
Level 3 Study Process.
Ground Referencing Adequacy
Based on the project size and system configuration, the ground referencing equipment specifications appear to be
adequate for installation with this interconnection. Should the size or configuration of this project change at any
point in time, this determination will no longer be valid. It is the customer's responsibility to ensure that the ground
referencing equipment specifications are reviewed and in compliance with Xcel Energy's Ground Reference
Requirements.
p. 1/6
Level 2 Process Eligibility
CCR Section
3855
(a)(II)
CCR Section
3855
(b)(I)
(b)(II)
To qualify for the Fast Track Review Process:
For certified inverter -based systems, the size limit of the interconnection resource varies according to
the voltage of the utility line at the proposed point of interconnection. Certified inverter -based
interconnection resource facilities located within 2.5 electrical circuit miles of a substation and on a
mainline are eligible for the Level 2 Process under the higher thresholds pursuant to this rule 3856.
Level
2
Eligibility
for Inverter
-Based
Systems
Line Voltage
Eligibility
Regardless
of
Location
Eligibility
Requirements
and
Meeting
Substation)
(Mainline
Location
< 5
kV .
< 500
kW
< 500
kW
≥5kV
and
<15kV
.
<2MW
<3MW
≥15
kV and <30kV
<3MW
<4MW
≥30
kV and 569
kV
<4MW
<5MW
Generating facility is UL 1741 certified?
Point of Interconnection is a Mainline Feeder?
DER Size:
Line Voltage:
Distance from Substation:
Eligible for Fast Track Review?
Level 2 Review Screens
Yes
Non
-Mainline
4,950.00
12.5
3.88
No
kW
kV
mi
The proposed interconnection resource's point of interconnection must be on a portion of the utility's
distribution system that is subject to the tariff.
Passes Screen?
Yes
For interconnection of proposed interconnection resources to a radial distribution circuit, the
aggregated generation, including the proposed interconnection resources, on the line section(s) shall
not exceed 15 percent of the line section's annual peak load as most recently measured at the
substation or calculated for the line section(s). A line section is that portion of a utility's electric
system connected to a customer bounded by automatic sectionalizing devices or the end of the
distribution line. A fuse is not an automatic sectionalizing device. Energy storage system(s) capacity
for purposes of this screen shall be based on subparagraph 3853(c)(III).
*CONFIDENTIAL* - 15% of Peak Load:
Aggregate DER, including proposed DER:
Passes Screen (Aggregate DER is less than 15% of Peak Load):
kVA
kW
p. 2/6
(b)(III)
(b)(IV)
(b)(V)
(b)(VI)
The proposed interconnection resource, in aggregation with other generation on the distribution
circuit, shall not contribute more than ten percent to the distribution circuit's maximum fault current at
the point on the distribution feeder voltage (primary) level nearest the proposed point of change of
ownership.
Distribution Circuit Maximum Fault Current nearest the PCC:
Aggregate nameplate DER, including proposed DER, on feeder:
Aggregate DER fault current contribution:
Max Fault Current:
Passes Screen?
Amps
kVA
Amps
ok
The proposed interconnection resource, in aggregate with other interconnection resources on the
distribution circuit, shall not cause any distribution protective devices and equipment (including, but
not limited to, substation breakers, fuse cutouts, and line reclosers), or Interconnection Customer
equipment on the system to exceed 87.5% of the short circuit interrupting capability; nor shall the
interconnection be proposed for a circuit that already exceeds 87.5% of the short circuit interrupting
capability.
Assumed lowest short circuit interrupting rating of equipment inline with DER:
Aggregate DER fault current contribution:
Distribution Circuit Maximum Fault Current nearest the PCC:
Total available short circuit current:
Aggregate fault current contribution as a % of short circuit interrupting rating:
Passes Screen:
Amps
Amps
Amps
Amps
ok
The proposed interconnection resource shall meet the rapid voltage charge and flicker requirements
of IEEE Standard 1453 (2015) and IEEE Standard 1547 -SA, until January 1, 2022, at which time new
DERs applying for interconnection will comply with IEEE 1547- 2018 based on the appropriate test.
Passes Screen:
The type of interconnection to a primary distribution line shall be determined based on the table
below, including a review of the type of electrical service provided to the interconnection customer,
line configuration, and the transformer connection to limit the potential for creating over -voltages on
the utility's electric power system due to a loss of ground during the operating time of any anti-
islanding function.
Primary
Distribution
Line Type
Type
Primary
of
Interconnection
Distribution
Line
to
Result/Criteria
Three-
phase,
p
three
-wire
3 -phase
or single
phase
phase,
phase
-to-
Pass screen
Three-phase,
p
hase
four -wire
Effectively
Single-phase,
Grounded
line
-to
3
-neutral
phase
or
Pass screen
Interconnection Type:
Primary Distribution Line Type:
Passes Screen:
Refer to Ground Referencing Adequacy section of report.
p. 3/6
(b)(VII)
(b)(VIII)
(b)(X)
(b)(XI)
If the proposed interconnection resource is to be interconnected on single-phase shared secondary,
the aggregate generation capacity on the shared secondary, including the proposed small generating
facility, shall not exceed 25 kW. Energy storage system(s) capacity for purposes of this screen, shall
be based on subparagraph 3853(c)(III).
Aggregate DER on Shared Secondary:
Passes Screen:
N/A
N/A
Interconnection is not on a single-phase shared secondary. Screen does not apply.
kW
If the proposed interconnection resource is single-phase and is to be interconnected on a center tap
neutral of a 240 volt service, its addition shall not create an imbalance between the two sides of the
240 volt service of more than 20 percent of the nameplate rating of the service transformer.
Service transformer nameplate rating:
DER Size:
DER Size as a % of service transformer nameplate rating:
Passes Screen:
Interconnection is not interconnected to a tap neutral. Screen does not apply.
N/A
N/A
N/A
N/A
NC
kVA
kW
ok
For interconnection of a proposed interconnection resource to the load side of spot network
protectors serving more than a single customer, the proposed small generating facility must utilize an
inverter -based equipment package and, together with the aggregated other inverter -based
generation, shall not exceed the smaller of five percent of a spot network's maximum load or 300
kW. For spot networks serving a single customer, the small generator facility must use inverter -
based equipment package and either meet the requirements above or shall use a protection scheme
or operate the generator so as not to exceed on -site load or otherwise prevent nuisance operation of
the spot network protectors.
Interconnection on a Spot Network?
DER is Inverter Based?
Network Maximum load:
Aggregate DER, including applied -for DER:
Aggregate DER as % of Network Maximum Load:
Passes Screen:
Interconnection is not on a Spot Network. Screen does not apply.
No
N/A
N/A
N/A
N/A
N/A
kW
kW
ok
For interconnection of a proposed interconnection resource to the load side of area network
protectors, the proposed interconnection resource must utilize an inverter -based equipment package
and, together with the aggregated other inverter -based interconnection resource, shall not exceed the
smaller of ten percent of an area network's minimum load or 500 kW AC.
Interconnection on an Area Network?
DER is Inverter Based?
Network Minimum load:
Aggregate DER, including applied -for DER:
Aggregate DER as °/0 of Network Minimum Load:
Passes Screen:
Interconnection is not on an Area Network. Screen does not apply.
No
N/A
N/A
N/A
N/A
N/A
kVA
kW
ok
p. 4/6
(b)(IX)
(b)(XII)
No construction of facilities by the utility on its own system shall be required to accommodate the
small generating facility. Note: Additional construction of facilities may be identified through the
Supplemental Review Process and are not addressed in this section. Additional construction of
facilities may be required.
The nameplate capacity of a proposed interconnection resource, in combination with the nameplate
capacity of any previously interconnected interconnection resource, shall not exceed the capacity of
the customer's existing electrical service unless there is a simultaneous request for an upgrade to the
customer's electrical service, regardless of exporting or non -exporting designations for any of the
Service Transformer Nameplate:
Aggregate DER on Service Transformer:
Aggregate DER Size as a % of Transformer Nameplate Rating:
Does the service transformer require replacement as determined by this screen?
Technical Planning Standard
Similar to Xcel Energy's planning standards for load, aggregate front of the meter DER export
capacity is allowed up to 75% percent (%) of the limiting equipment continuous rating, which
could be at the substation transformer or feeder level. Xcel Energy will allow behind the meter
DER export capacity an additional 25%, due to its association with load, so long as the total
aggregate DER export capacity does not exceed 100% of the continuous rating. Due to the
variability of load, minimum load is not included in this hosting capacity calculation. However,
Xcel Energy will allow non -exporting DER if these thresholds are exceeded. Otherwise a
detailed study would be required.
*CONFIDENTIAL* - Aggregate Total DER as % of Feeder Rating:
*CONFIDENTIAL* - Aggregate Total DER as % of Substation Transformer Rating:
Technical Planning Standard Exceeded?:
Other Modifications to Facilities
Additional changes to facilities may be required to interconnect the
DER. They are listed below.
Is Voltage Supervisory Reclosing required?
Will additional modifications to facilities by the utility, not including
those to be identified in the Supplemental Review, be required?
Passes Screen:
Description of Facility Modifications:
Yes
No
System upgrades to be determined during Level 3 study process.
kVA
kW
ok
p. 5/6
Ground Referencing
Inverter -Based Systems 100 kW and greater require ground referencing. The adequacy of the
provided ground referencing specifications are evaluated below.
Requirement 1:
Requirement 2:
Requirement 3:
Requirement 4:
X0. DER -
As Specified: X0. DER=
Requirement Met?
Xo; DERMO, DER
As Specified: X0; DER/Ro, DER
Requirement Met?
Neutral Current Rating for Vo = 4%=
Neutral Current Rating, as specified=
Requirement Met?
Minimum required fault current withstand rating=
As Specified=
Requirement Met?
0.60 ± 10%
0.60
Yes
4.00
4.00
Yes
45.84
45.84
Yes
303
1284.97
Yes
p.u.
p.u.
amps
amps
amps
amps
p. 6/6
#♦♦
#'♦•♦ Reactivate
#♦#
An Inv nergy Connpony
Neighbor Outreach
Reactivate has contacted residential properties adjacent to the proposed community solar
energy facility location. There were only two residential use owners within the 500 foot
boundary.
LETRBUCK LLC
}` {
35321 ESTATE LLC
1
C E LwA1 N CAROL
tit
Al •
A:ER EUNICE A
R
\J E L ON MICHAE
4, .
* N
Eunice Baer - Parcel ID 080504400038 - Contacted by phone and emailed September 12,
2024: No opposition stated at the time. Ms. Baer mentioned she had solar on her property.
She had questions regarding mowing that was currently happening on the project site.
Reactivate is unaware of any mowing started for the proposed project.
Carol McElwain - Parcel ID 080504400008 - contacted by phone and emailed August 29,
2024: stated they would rather see chain link versus block wall and that they wanted to
make sure it wouldn't affect their power.
FOR COMMERCIAL OR INDUSTRIAL BUILDINGS,
PLEASE COMPLETE THE FOLLOWING INFORMATION:
Business Name:
Address:
Business Owner:
Home Address:
RDC CO Weld County RS 72 II LLC
One South Wacker Dr., Ste 1800
Reactivate DevCO LLC
N/A
Phone: (708) 887-8059
City, state, zip:
Phone:
City, state, zip:
List up to three persons in the order to be called in the event of an emergency:
NAME TITLE
Reactivate Operations
PHONE
(708) 887-8059
Chicago, IL, 60606
N/A
N/A
ADDRESS
Reactivate Site Emergency Response Team
(708) 887-3222
Omnidian Priority Line
(855) 255-6192
Business Hours: lam to 5pm
UTILITY SHUT OFF LOCATIONS:
Main Electrical:
Gas Shut Off:
TBD
Days: Mon -Sun
N/A
Exterior Water Shutoff: N/A
Interior Water Shutoff: N/A
07/22
12
USR for Solar Energy Facility (SEF) Supplement
Department of Planning Services
1402 N. 17TH Avenue, P.O. Box 758, Greeley, CO 80632
www.weld.gov I (970) 400-6100 I Fax (970) 304-6498
Supplemental Application Items
N/A
N/A
N/A
N/A
Development Standards Statement, see attached instructions.
Add to USR Plot Plan: the proposed location of the SEF, support structures, related improvements, and
equipment. Include distances from the SEF to the property lot lines, above -ground power lines and other
structures. Distances to residential structures in the vicinity. Areas of vegetation and landscaping to be
added, retained, replaced or removed.
Elevation drawings of the proposed facility showing structures, fencing, equipment, and other improvements
related to the facility, including specific materials, placement and colors.
Dust and Weed Mitigation Plan. A description of those methods by which dust emanating from the proposed
SEF and the weeds growing upon the impacted area will be mitigated.
Utility Company Interconnection Agreement. If proposing to interconnect to a utility company, copy of a "letter
of intent to interconnect" or interconnection agreement signed by the utility company.
Alternatives Statement. Reasonable alternatives to the proposed location shall be adequately assessed, and
the proposed action shall be consistent with the best interests of the people of the County and shall represent
a balanced use of resources in the affected area.
Statement of Transportation Construction Impacts, see attached instructions.
Surface Drainage Analysis, see attached instructions.
A Decommissioning -Reclamation Plan, see attached instructions.
Landscaping Plan and/or Fencing Plan, if proposing encroachment into five hundred (500) residential setback.
Floodplain Impact Statement, if applicable. If any FEMA designated Special Flood Hazard Areas (SFHA) exists
on the property, detail potential, adverse impacts related to the associated floodplain. Documentation of the
historical flooding activity should be included. A Floodplain Development Permit (FHDP) will be required if the
site is located in a SFHA.
Post -Approval, Prior to Construction Submittal Requirements
_ Building Permit application(s) to Department of Building Inspection.
Prior to applying for a --Grading Permit, a final drainage report stamped and signed by a Professional Engineer
registered in the State of Colorado.
Grading Permit application to the Departmertof-Pablic Works.
Access Permit application if accessing a Weld County road to the Department of Public Works.
_ Flood Hazard Development Permit (FHDP) if structures will belocatedin a SFHA to the Department of
Planning Services."
Security, see attached instructions.
5/6/21
National Flood Hazard Layer FIRMette
FEMA
Legend
104°46'59"W 40°30'56"N
104°46'22"W 40°30'29"N
0 250 500
1,000
1,500
Feet
2,000
1:6,000
SEE FIS REPORT FOR DETAILED LEGEND AND INDEX MAP FOR FIRM PANEL LAYOUT
SPECIAL FLOOD
HAZARD AREAS
Without Base Flood Elevation (BFE)
Zone A, V, A99
With BFE or Depth Zone AE, AO, AN, VE, AR
Regulatory Floodway
OTHER AREAS OF
FLOOD HAZARD
OTHER AREAS
GENERAL
STRUCTURES
OTHER
FEATURES
MAP PANELS
0.2% Annual Chance Flood Hazard, Areas
of 1% annual chance flood with average
depth less than one foot or with drainage
areas of less than one square mile
Future Conditions 1% Annual
Chance Flood Hazard
Area with Reduced Flood Risk due to
Levee. See Notes. zone x
Area with Flood Risk due to Leveezone D
NO SCREEN Area of Minimal Flood Hazard zone x
Effective LOM Rs
Area of Undetermined Flood Hazard zone D
- Channel, Culvert, or Storm Sewer
i i i i i i i Levee, Dike, or Floodwall
20.2 Cross Sections with 1% Annual Chance
17.5 Water Surface Elevation
8 - - - - Coastal Transect
.,.J..,.,, yI1n Base Flood Elevation Line (BFE)
— Limit of Study
Jurisdiction Boundary
- - - Coastal Transect Baseline
Profile Baseline
Hydrographic Feature
Digital Data Available
No Digital Data Available
Unmapped
The pin displayed on the map is an approximate
point selected by the user and does not represent
an authoritative property location.
This map complies with FEMA's standards for the use of
digital flood maps if it is not void as described below.
The basemap shown complies with FEMA's basemap
accuracy standards
The flood hazard information is derived directly from the
authoritative NFHL web services provided by FEMA. This map
was exported on 9/10/2024 at 1:02 PM and does not
reflect changes or amendments subsequent to this date and
time. The NFHL and effective information may change or
become superseded by new data over time.
This map image is void if the one or more of the following map
elements do not appear: basemap imagery, flood zone labels,
legend, scale bar, map creation date, community identifiers,
FIRM panel number, and FIRM effective date. Map images for
unmapped and unmodernized areas cannot be used for
regulatory purposes.
Basemap imagery Source: USGS National Map 2023
Three -Phase
Transformers
CA202003EN
Effective July 2015
Supersedes 210-12 August 2013
COOPER POWER
SERIES
Three-phase pad -mounted
compartmental type transformer
-auramm.,
General
At Eaton, we are constantly striving to introduce
new innovations to the transformer industry,
bringing you the highest quality, most reliable
transformers. Eaton's Cooper Power series
Transformer Products are ISO 9001 compliant,
emphasizing process improvement in all phases
of design, manufacture, and testing. In order
to drive this innovation, we have invested
both time and money in the Thomas A. Edison
Technical Center, our premier research facility
in Franksville, Wisconsin. Such revolutionary
products as distribution -class UltraSILTM
Polymer -Housed EvolutionTM surge arresters and
EnvirotempTM FR3TM fluid have been developed at
our Franksville lab.
N
Powering Business Worldwide
With transformer sizes ranging from 45 kVA
to 12 MVA and high voltages ranging from
2400 V to 46 kV, Eaton has you covered. From
fabrication of the tanks and cabinets to winding
of the cores and coils, to production of arresters,
switches, tap changers, expulsion fuses, current
limit fuses, bushings (live and dead) and molded
rubber goods, Eaton does it all. Eaton's Cooper
Power series transformers are available with
electrical grade mineral oil or EnvirotempTM FR3TM
fluid, a less -flammable and bio-degradable fluid.
Electrical codes recognize the advantages of
using EnvirotempTM FR3TM fluid both indoors and
outdoors for fire sensitive applications. The bio-
based fluid meets Occupational Safety and Health
Administration (OSHA) and Section 450.23 NEC
Requirements.
Three-phase pad -mounted compartmental type transformer
Catalog Data CA202003EN
Effective July 2015
Table 2. Three -Phase Ratings
Three -Phase 50 or 60 Hz
kVA Available'
45, 75, 112.5, 150, 225, 300, 500, 750, 1000, 1500, 2000, 2500, 3000, 3750, 5000, 7500, 10000
'Transformers are available in the standard ratings and configurations shown or can be customized to meet specific needs.
Table 3. Impedance Voltage
Low -voltage rating
Rating (IcVA)
≤ 600 V 2400 n through 4800 O 6900 n through 13800GY/7970 or 13800 II
45-75 2.70-5.75
2.70-5.75 2.70-5.75
112.5-300 3.10-5.75
3.10-5.75 3.10-5.75
500 4.35-5.75 4.35-5.75 4.35-5.75
750-2500 5.75
5.75 5.75
3750 5.75
5.75 6.00
5000
6.00 6.50
Note: The standard tolerance is ± 7.5%
Table 4. Audible Sound Levels
Self -Cooled, Two Winding IcVA Rating
NEMCTR-1 Average
Decibels (dB)
45-500
56
501-700
57
701-1000
58
1001-1500
60
1501-2000
61
2001-2500
62
2501-3000
63
3001-4000
64
4001-5000
65
5001-6000
66
6001-7500
67
7501-10000
68
Table 5. Insulation Test Levels
Induced Test 180 or 400 Hz
KV Class 7200 Cycle
IcV BIL Distribution Applied Test 60 Hz (kV)
1.2
2.5
5
30 10
45 15
60 19
8.7 Twice Rated Voltage 75 26
15
25
34.5
95 34
125 40
150 50
Table 6. Temperature Rise Ratings 0-3300 Feet (0-1000 meters)
Standard Optional
Unit Rating (Temperature Rise Winding)
65 °C 55 °C, 55/65 °C, 75 °C
Ambient Temperature Max
40 °C 50 °C
Ambient Temperature 24 Hour Average
30 °C 40 °C
Temperature Rise Hotspot
80 °C 65 °C
www.eaton.com/cooperpowerseries 3
SUNNY HIGHPOWER PEAK3
125 -US / 150 -US / 165 -US / 172 -US
Cost effective
• Modular architecture reduces BOS
and maximizes system uptime
• Compact design and high power
density maximize transportation
and logistical efficiency
Maximum flexibility
• Scalable 1,500 VDC building
block with best -in -class performance
• Flexible architecture creates
scalability while maximizing land
usage
•
Simple install, commissioning
• Ergonomic handling and simple con-
nections enable quick installation
• Centralized commissioning and con-
trol with SMA Data Manager
SUNNY HIGHPOWER PEAK3
125 -US / 150 -US / 165 -US / 172 -US
A superior modular solution for large-scale power plants
Highly innovative
• SMA Smart Connected reduces
O&M costs and simplifies field -
service
• Powered by award winning ennexOS
cross sector energy management
platform
The PEAK3 1,500 VDC inverter offers high power density in a modular architecture that achieves a cost -optimized solution
for large-scale PV integrators. With fast, simple installation and commissioning, the Sunny Highpower PEAK3 is accelerating
the path to energization. SMA has also brought its field -proven Smart Connected technology to the PEAK3, which simplifies
O&M and contributes to lower lifetime service costs. The PEAK3 power plant solution is powered by the ennexOS cross
sector energy management platform, 2018 winner of the Intersolar smarter E AWARD.
Technical Data
Sunny Highpower
PEAK3 125 -US
Sunny Highpower Sunny Highpower Sunny Highpower
PEAK3 150 -US PEAKS 165 -US PEAK3 172 -US
Input (DC)
Maximum array power')
Maximum system voltage
Rated M PP voltage range
MPPT operating voltage range
M PP trackers
Maximum operating input current
Maximum input short-circuit current
Output (AC)
Nominal AC power
Maximum apparent power
Output phases / line connections
Nominal AC voltage
Compatible transformer winding configuration
Maximum output current
Rated grid frequency
Grid frequency / range
Power factor at rated power / adjustable displacement
Harmonics (THD)
Efficiency
CEC efficiency
Protection and safety features
Ground fault monitoring: Riso / Differential current
DC reverse polarity protection
AC short circuit protection
Monitored surge protection (Type 2): DC / AC
Protection class / overvoltage category (as per UL 840)
General data
Device dimensions (W / H / D)
Device weight
Operating temperature range
Storage temperature range
Audible noise emission (full power @ lm and 25°C)
Internal consumption at night
Topology
Cooling concept
Enclosure protection rating
Maximum permissible relative humidity (non -condensing)
Additional information
Mounting
DC connection
AC connection
LED indicators (Status/Fault/Communication)
SMA Speedwire (Ethernet network interface)
Data protocols: SMA Modbus / SunSpec Modbus
Integrated Plant Control / Q on Demand 24/7
Off -grid capable / SMA Hybrid Controller compatible
Monitoring
SMA Sunny Portal (monitoring portal)
SMA Smart Connected (monitoring and remote O&M service)
Supported protocols for outbound data
Certifications
Certifications and approvals (pending)
Manufacturer's Declaration of Design Life
FCC compliance
Grid interconnection standards
Advanced grid support capabilities
Warranty
Standard
Optional extensions
250 kWp
705 V ... 1450 V
684 V ... 1500 V
125 kW
125 kVA
480 V
98.5 %
300 kWp
330 kWp
1500 Vdc
880 V ... 1450 V 924 V ... 1450 V
855 V ... 1500 V 898 V ... 1500 V
150 kW
150 kVA
600 V
1
180 A
325 A
3 / 3 -PE
165 kW
165 kVA
630 V
Wye -grounded
151 A
60 Hz
50 Hz, 60 Hz/-6Hz... +6 Hz
1 / 0.8 leading ... 0.8 lagging
99.0 %
<3%
• /•
•
•
• /•
/IV
99.0 %
770 / 830 / 462 mm (30.3 / 32.7/ 18.2 in)
99 kg (218 Ibs)
-25°C... +60°C (-13°F ... +140°F)
-40°C ... +70°C (-40°F ... +158°F)
< 69 dB(A)
<5W
Transformerless
OptiCool (forced convection, variable speed fans)
Type 4X
100%
Rack mount
Terminal lug (up to 600 kcmil CU/AL)
Screw terminal (up to 300 kcmil CU/AL)
•
• (2 x RJ45 ports)
• /•
• /•
—/•
No cost for the lifetime of the system
No cost on inverters under warranty
SMA external API, Modbus, FTP
344 kWp
968 V ... 1450 V
941 V... 1500V
172 kW
172 kVA
660 V
99.0 %
UL 62109, UL 1998, CAN/CSA-C22.2 No.62109
25 years
FCC Part 15, Class A
IEEE 1547:2018, UL 1741 -SA- CA Rule 21, HECO Rule 14H, UL1 741 SB
L/HFRT, L/HVRT, Volt-VAr, Volt -Watt, Frequency -Watt, Ramp Rate Control, Fixed Power Factor
1 ) Higher DC array power permitted via site inverter load modeling in SMA Sunny Design
Type designation SHP 125 -US -21
• Standard features o Optional features — Not available
Toll Free +1 888 4 SMA USA
www.SMA-America.com
5 years
10/ 15/20/25 years
SHP 150 -US -21
SHP 165 -US -21
SHP 172 -US -21
SMA America, LLC
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+*+•+ Reactivate
+4_
An Invenergy Company
Supplemental Requirements: Township of Eaton
As a result of the Coordinated Planning Agreement entered into between the County
of Weld and Eaton, Reactivate has completed the review process with Eaton. The review
process has concluded that Eaton has requested that Reactivate address the following:
1. Eaton: Address project flood plain area
Reactivate: Per Melissa King of Weld County's Development Review team, the
proposal will require a flood plain permit during pre -construction as a condition of
the building permit.
2. Eaton: Gas line easements have been discussed running across the property
Reactivate: These easements are identified in the Title report that was included in
the USR application package for Weld County. These will be depicted as part of the
ALTA survey process required for due course design and financing. No panels will
be designed or installed on or near the lines. If communication or electrical cables
must cross the gas lines, a crossing agreement will be documented in coordination
with the easement owner.
3. Eaton: Request for a buffering and landscaped area specifically along County Road
72 with additional requested areas shown by Eaton redlines in Exhibit of this
document.
Reactivate: Reactivate has agreed to include upgraded landscape buffers on the
frontage between the project area and County Road 72.1n previous discussions
with Weld County, Reactivate has also agreed to improve fence screening on the
east side of the project to better screen the area from adjacent residents. See
attached Exhibit A for a depiction of the proposed buffers.
4. Eaton: Identify haul routes during construction
Reactivate: Haul routes will utilize designated truck routes including State Highway
85 and entrance to site from County Road 72. Traffic volumes and trips can be
+*+•+ Reactivate
++
An Invenergy Company
found in the Traffic Narrative which was submitted to Weld County and is also
included in this document as Exhibit B.
5. Eaton: Growth in this outer area of the 3 mile growth area is estimated to begin in
the next 20 to 30 years. Can Reactivate remove project prior to growth?
Reactivate: The typical life span of our projects is expected to be 30-40 years with
many variables. There are also many factors that we use in order to confirm that this
is a feasible project for our business model one of which relies heavily on the
lifespan of the project. Reactivate has provided a decommissioning plan to Weld
County as a requirement of the USR submittal package.
+*+•+ Reactivate
+4_
An Invenergy Company
EXHIBITA
+*+•+ Reactivate
+4_
An Invenergy Company
EXHIBIT B
#♦♦
#'♦•♦ Reactivate
#♦#
Traffic Narrative
RDC CO Weld County RS 72 II
1. Describe how many roundtrips/day are expected for each vehicle type: Passenger
Cars/Pickups, Tandem
The construction phase of the Reactivate Dev Co Solar Project is expected to generate the
following vehicle tri
p
s:
• Material and Equipment Delivery (approximately 4 weeks):
- Maximum: 24 vehicle trips per day
- Average: 16 vehicle trips per day
- Vehicle types: Cone; container trucks, delivery trucks, and equipment hauling
trucks
- Estimated gross vehicle weight: 20,000 to 50,000 lbs
• Solar Facility Installation (4-6 months):
- Maximum: 28 vehicle trips per day
- Average: 20 vehicle trips per day
- Vehicle types: Passenger vehicles, fuel trucks, and material delivery trucks
- Estimated gross vehicle weight: 2,000 to 30,000 lbs
• Heavy Vehicle Traffic:
- Most heavy truck traffic will occur between 8:00 AM and 4:30 PM.
- Heavy vehicles will primarily be present during the material and equipment
delivery phases.
• Peak Hour Impacts:
-Project-related traffic is not expected to significantly impact AM and PM peak
traffic periods.
2. Describe the expected travel routes or haul routes for site traffic.
All construction traffic will travel along Weld County Rd 72 and will be entering the site at
the provided construction entrance proposed on the southeast corner of the site.
#♦♦
#'♦•♦ Reactivate
#♦#
3. Describe the travel distribution along the routes
• Traffic Volume: The construction phase will temporarily increase local traffic, with a
maximum of 28 vehicle trips per day during the solar facility installation period.
• Road Conditions: Based on the anticipated vehicle types and weights, the project is not
expected to cause significant degradation or damage to local roads.
• Traffic Flow: The construction of the project should not negatively impact the overall
transportation pattern in the area.
• Road Improvements: No improvements to local or state roads are anticipated to be
required to accommodate the construction traffic.
• Peak Hour Traffic: Construction -related traffic is not expected to significantly impact AM
and PM peak traffic periods.
• Mitigation Measures:
Reactivate commits to implementing the following measures to minimize transportation
impacts during construction:
• Scheduling heavy truck deliveries outside of peak traffic hours when possible.
• Using designated travel routes to minimize impact on local traffic.
• Implementing a traffic management plan if required by local authorities.
• Conducting regular inspections of affected roadways and repairing any damage attributed
to project construction vehicles.
• Providing advance notice to local residents about periods of increased construction traffic.
4. Describe the time of day that you expect the highest traffic volumes
• 8:00 am thru 4:30 pm
Reference - Ordinance Requirements:
#♦♦
#'♦•♦ Reactivate
#♦#
An Inv :nergy Cornpany
Traffic !Narrative:
1. Diescribe how many roundtripsfday are expected for each vehicle type: PassengerCars/Pickups, Tandem
Trucks, Semi-Truck/Trailer/RV (Roundtrip = One (1) trip in and One (1) trip out of site)
2. Describe the expected travel routes or haul routes for site traffic.
Describe the travel distribution along the routes (e.g, 50% of traffic will come from the north,, 20% from the
south,, 0% from the east, etc.).
At Describe the time of day that you expect the !highest traffic volumes.
PublicWorks will review the Traffic Narrative and advise the applicant if more information or an engineered traffic
impact study is required.
Notice of Inquiry
Weld County
Pre --application
Case #
PRE24-0203
Date
of
Inquiry
7/26/2024
Municipality
Severance
CPA
Name
of
Person Inquiring
James
Bentley
-
Reactivate
Property
Owner
35321
Estate
LLC
Planner
Chris
Gathman
Planner
Phone
Number
970-400-3537
Planner
Email
Address
bentleyLreactivate.com
Legal
Description
Lot
located
B of
1AMRECXI8-12-0095;
in
Part
S2SE4
of
Section
east
4
of
T6N
Farmers Independent
R66W
Ditch,
Parcel
Number
080504400009
Nearest
Intersection
County
Road
72/County
Road
31
Type
of
Inquiry
Use
by Special
Review
Permit
for a Solar
Energy
Facility
The above person met with County Planning staff about developing a parcel of land inside your designated
Intergovernmental Agreement/Coordinated Planning Agreement Boundary.
itJ •
(///it,t711
County Planner's signature
Would
you like
to
pursue annexation
of
this
property?
NO
YES
Date
of
Contact
9 -oz 4-0,1_ c---/
Comments:
a_Aiti PAIL -4—s%--.) Pia."_ s --e_ibt cir c) -,,Ly -,,z_ y
Si
ature
of
Municipality
Representative
Title
Date
Please sign and date to acknowledge that the applicant has contacted you
and return this signed form to Weld County Department of Planning Services.
Weld County Planning Department
1555 N 17th Ave, Greeley, CO 80631 970) 400-6100 (970) 304-6498 Fax
20181107
Notice of Inquiry
Weld County
Pre -application
Case #
PRE24-0203
I
Date
of
Inquiry
7/26/2024
Municipality
Eaton
CPA
Name
of
Person
Inquiring
James
Bentley
- Reactivate
Property
Owner
35321
Estate
LLC
Planner
Chris
Gathman
Planner
Phone
Number
970-400-3537
Planner
Email
Address
bentley@reactivate.com
located
Lot
B of
1AMRECX18-12-0095;
in
Part
S2SE4
of
east
Section 4,
of
T6N,
Farmers Independent
R66W
Ditch,
Le al
g
Description
p
Parcel
Number
080504400009
Nearest
Intersection
County
Road
72/County
Road
31
Type
of
Inquiry
Use
by Special
Review
Permit
for a Solar
Energy
Facility
The above person met with County Planning staff about developing a parcel of land inside your designated
Intergovernmental Agreement/Coordinated Planning Agreement Boundary.
6A21. ---C)
n
County Planner's signature
Would
you like
to
pursue annexation
of
this
property?
NO
X YES
1
0— 2- 2 0 2 4
Date
of Contact
Comments:
The Town does
not
have an interest
to
annex
the
property with
the
proposed solar
farm
project.
Solar
facilities
Urban
are
Growth
not
supported
Area.
Simply
or
endorsed
put,
Eaton
as
will
an
oppose
acceptable
the
land
proposed
use
application
proposed
in
if
any
submitted
process
in the
to Weld
County
Eaton
in the near
future.
Digitally signed by Vincent Harris
DN: cn=Vincent Harris, o=Baseline Eng. Corp,
ou=Planning, email=vince@baselinecorp.com, c=US
Date: 2024.1 0.02 1 1:32:46 -06'00'
Eaton
Planning
Director/via
contract
10-2-2
024
Signature
of
Municipality
Representative
Title
Date
Please sign and date to acknowledge that the applicant has contacted you
and return this signed form to Weld County Department of Planning Services.
Weld County Planning Department
1555 N 17th Ave, Greeley, CO 8O631 (970) 4OO-61OO (97O) 3O4-6498 Fax
20181107
Weld County Treasurer
Statement of Taxes Due
Account Number R8966330
Parcel 080504400009
Legal Description
PT S2SE4 4 6 66 LOT B REC EXEMPT I AMRECX 18-12-0095
Account: R8966330
0
35321 ESTATE LLC
35321 COUNTY ROAD 31
GREELEY, CO 80631-9311
Year
2023
Charges
Tax
Billed
$14.32
S i tus Address
Payments
$14.32
Balance
$0.00
Grand Total Due as of 08/14/2024
$0.00
Tax Billed at 2023 Rates for Tax Area 3885 - 3885
Authority
WELD COUNTY
SCHOOL DIST RE2-EATON
NORTHERN COLORADO WATER
(NC
EATON FIRE
AIMS JUNIOR COLLEGE
HfGH PLANS LIBRARY
WEST GREELEY CONSERVATION
Taxes Billed 2023
Credit Levy
Mill Levy
12.0240000*
33.1000000
1.0000000
9.0000000
6.3360000
3.1960000
0.4140000
Amount
$2.66
$7.27
$0,22
$1.98
$1.40
$0.70
$0.09
65.0700000
$14.32
Values
AG -GRAZING LAND
AG -WASTE LAND
Total
Actual
$784
$12
Assessed
$210
$10
$796
$220
ALL TAX LIEN SALE AMOUNTS ARE SUBJECT TO CHANGE DUE TO ENDORSEMENT OF CURRENT TAXES BY THE
LIENHOLDER OR TO ADVERTISING AND DISTRAINT WARRANT FEES.
�_;
Weld County Treasurer's Office
1400 N 17th Avenue
PO Box 458
Greeley, CO 80032
Phone: 970-400-3290
Pursuant to the Weld County Subdivision Ordinance, the attached Statement of Taxes Due
issued by the Weld County Treasurer are evidence that as of this date, all current and prior year
taxes related to this parcel have been paid in full.
Signed:
Date:
Hello