HomeMy WebLinkAbout20230838.tiffetif./p/ /77,
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: CBEP Solar 7, LLC — USR22-0025
DEPARTMENT: Planning Services DATE: March 7, 2023
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Planning Services received a request from the applicant, CBEP Solar 7, LLC, requesting that
the Board of County Commissioners consider approving the Road Maintenance During Construction Agreement
for (USR22-0025). No collateral is required with this agreement.
Weld County Planning Services, Public Works, and the County Attorney's Office have reviewed the above -
mentioned signed original document and observed the following:
• All Public Works related items, of the "Road Maintenance Agreement According To Policy', are found
to be acceptable.
• This Agreement complies with the terms of the Use by Special Review Permit Resolution, as signed
by the Board of County Commissioners.
What options exist for the Board? (include consequences, impacts, costs, etc. of options):
1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendation:
Option 1. The Departments of Planning Services, Public Works, and the County Attorney's Office are
recommending approval of the Road Maintenance Agreement According To Policy for USR22-0025, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Approve
Recommendation
Perry L. Buck, Pro -Tern
Mike Freeman, Chair
Scott K. James
Kevin D. Ross
Lori Seine
.3_as.023
Schedule
Work Session Other/Comments;
/1/1 i PL(ca/s,-M/KR/DA)
03/3l/23 69,-)6,7„6..-
tep-p&
2023-0838
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
CBEP Solar 7, LLC — USR22-0025
THIS AGREEMENT is made this (1* day of A*rek , 2023_, by and between CBEP Solar 7,
LLC, P.O. Box 1255, Sterling, Colorado 80751, a limited liability company organized under the laws of the
State of Delaware, hereinafter referred to as "Property Lessee," authorized to do business in the State of
Colorado, and the County of Weld, a body corporate and politic of the State of Colorado, by and through its
Board of County Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter
referred to as "County."
WITNESSETH:
WHEREAS, Property Lessee is the Lessee of the following described property in the County of
Weld, Colorado:
Lot B of Lot Line Adjustment, LLA22-0035, being part
of the N1/2 S1/2 of Section 3, Township 4 North, Range
67 West of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Lessee has received the Board of County Commissioners conditional approval
of USR22-0025, and
WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly
associated with USR22-0025, for an extended period of time; and
WHEREAS, the County, and Property Lessee are desirous of agreeing to terms involving
regulation of haul routes, traffic control, and road wear arising from such additional traffic.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant, and agree as follows:
Part I: SITE SPECIFIC PROVISIONS
A. Reserved
81 B. Haul/Travel Routes: The Property Lessee shall be financially responsible for its proportional share
of the associated costs for maintaining and/or improving designated haul/travel routes pursuant to Section C.
S ki 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property:
m3z 1) East and west along County Road 48.5 between Johnstown City Limits and State Highway 257.
1-417 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 48.5 and travel east -west to
m the nearest paved road for further dispersal. Any County roads used by traffic associated with USR22-0025
may become part of the established haul/travel routes.
IDa i°
3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle
and axle configurations unless overweight permits have been applied for and granted.
gin
4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the
EP.-2
CBEP Solar 7, LLC — USR22-0025 - RMCA23-0001
Page 1 of 7 Oise
abovementioned haul/travel route for a limited period (six months or less), Weld County Planning Services
may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved county
roads whenever possible. A deviation from the established haul/travel route lasting more than six (6) months
or requests for one (1) or more deviations within a 12 -month period shall authorize the County to change the
haul/travel routes designated herein and provide notice to the Property Lessee.
5.0 Haul Route Signage. Property Lessee shall install travel route signs, if applicable, as per Manual of
Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen by
drivers leaving the facility and which clearly depict County approved travel routes.
6.0 No Deviation from Permitted Haul Routes. Except as authorized by the Board pursuant to this
Agreement, no use of any roads other than those specifically authorized for use in this Agreement is
permitted without the prior written amendment of this Agreement.
C. Maintenance Requirements:
1.0 Off -Site Dust Control/Abatement: The Property Lessee is required to provide dust abatement along
affected haul route roads, as determined by the County. County will determine the proportionate share of
dust control to be paid by Property Lessee. The amount and extent of dust control measures will be
determined by site -specific conditions at the time, as determined exclusively by County personnel The
County reserves the right to install traffic counters on the driveway(s) of the Property Lessee's facility. The
County will have sole responsibility for determination of the percentage of haul route traffic on all affected
roads.
2.0 Obligation to Maintain Current and Future Haul Routes: Property Lessee will be fmancially
responsible for the excavation, repair, and patching of any damage on current or future haul route roads,
which in the sole opinion of County has been created by vehicle traffic to and from the Property. Should
Property Lessee's site activities or vehicle circulation patterns change in the future so that County approves
an alternate haul route, and all or a significant portion of Property Lessee's sourced traffic no longer utilizes
the abovedescribed haul route and instead utilizes other portions of County roads, Property Lessee shall
cooperate with County in maintenance of said roads which are included within the new haul route. The type
and method of repair will be determined by the County Engineer or his representative. Repairs shall
commence within 48 hours of notification by the County for any roadway damage that exposes the driving
public to adverse or unsafe driving conditions. All other repairs shall commence within thirty (30) days of
receipt of Weld County's written notice.
2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project
traffic that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection, notify Property Lessee of such
Significant Damage. Property Lessee shall identify the repair required and shall consult with
County on the extent, type, timing, materials, and quality of repair (i.e., temporary versus
permanent) within twenty-four (24) hours after receipt of such notice and shall commence such
repair within fortyeight (48) hours after receipt of such notice. If Property Lessee identifies
Significant Damage prior to receiving notice thereof from County, Property Lessee may
commence repair of such Significant Damage and shall concurrently notify County of the extent,
type, timing, materials, and quality of repair (i.e., temporary versus permanent).
2.2 In County's sole discretion, County may undertake the repairs and/or improvements. Property
Lessee's payment for its Proportionate Share of the road repairs/improvements will be calculated
as described in this Agreement.
3.0 Proportionate Share of Road Maintenance Responsibilities:
CBEP Solar 7, LLC — USR22-0025 — RMCA23-0001
Page 2 of 7
3.1 Property Lessee shall pay its Proportionate Share of costs of dust control/abatement, paving,
repairs, or maintenance of any particular Haul Route Road. Property Lessee's Proportionate
Share shall be based upon the percentage of traffic on the road that is attributable to Property
Lessee's facility. County personnel will determine the percentage based on then current
Equivalent Single Axle Load (ESAL) Counts. Property Lessee shall not be responsible for traffic
that is not sourced from the Property Lessee's facility.
3.2 The County shall notify Property Lessee of County's preliminary determination and assessment
of Property Lessee's proportionate share of costs. Prior to County's fmal determination and
assessment, County shall provide Property Lessee with a reasonable opportunity to review,
comment upon and supplement County's data, collection methodology, and determinations. The
County shall review and consider Property Lessee's input prior to making a fmal determination
and assessment. The County shall have sole responsibility for determination of Property
Lessee's proportionate share of costs.
Part II: GENERAL PROVISIONS
A. General Requirements:
1.0 Permits: Property Lessee is required to apply for and receive all permits required by the County or
any other applicable local, State, or federal permit, including but not limited to:
1. Access Permits. Property Lessee shall not use any access onto any County Road unless and until
an access permit has been issued by the Department of Planning Services. Planning Services may
condition the issuance of an updated access permit on the amendment of this Agreement if the
updated access permit authorizes the use of an additional access point, or if there is a change in use
of the current access point, as permitted by Article XIV of Chapter 8 of the Weld County Code.
2. Right -of -Way (ROW) Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work
occurring within County ROW requires a ROW permit issued by the Department of Public Works.
No work shall occur without said ROW permit.
3. Transport Permits. Per Article XV of Chapter 8 of the Weld County Code, a Weld County
Transport Permit is required for Extra -legal vehicles using Weld County roadways to ensure the
operation and movement of Extra -legal Vehicles and Loads occurs in a safe and efficient manner.
2.0 Release of Liability. Property Lessee shall indemnify and hold harmless the County from any and all
liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and
8description caused by, arising from, or on account of said design and construction of the site specific Use
associated with USR22-0025, and pay any and all judgments rendered against the County on account of any
asuch suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in
y defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the
negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or
m3 damage arising from the intentional torts or the gross negligence of the County or its employees while acting
r within the scope of their employment.
oLLo�rim- 3.0 Liability for Damage to Road. Property Lessee shall be fmancially responsible for any and all
-- ; damage caused to any Weld County Road as a result of the design and construction of the site -specific Use
Wa associated with USR22-0025, without regard to the negligence, or lack thereof, of Property Lessee or its
agents. This provision shall survive Termination of this Agreement pursuant to section B.2.0, below, and
m4-3 A shall be of no further force and effect six months after the termination of this Agreement.
r■
NYE B. Violations of Agreement and Remedies
W\L
CBEP Solar 7, LLC — USR22-0025 - RMCA23-0001
Page 3 of 7
1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Property Lessee has violated
any of the terms of this Agreement, County shall so notify Property Lessee and shall state with specificity the
facts and circumstances which County believes constitute the violation. Property Lessee shall have thirty (30)
days within which to either cure the violation or demonstrate compliance. Thereafter, County may seek any
remedy described in this Agreement or otherwise provided by law.
2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of
the following events:
2.1 Cessation of all Permit Related Activities: Termination of this Agreement shall occur upon
Property Lessee's complete cessation of all activities permitted by the USR. A partial cessation
of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of
a partial release constitute a Termination. Unless informed in writing by the Property Lessee of
cessation of activities, and verified by the County, cessation shall be presumed if the County
determines that the USR has been inactive for three (3) years.
2.2 Execution of Replacement Agreement: This Agreement shall terminate following County's
execution of a new Improvements Agreement with a new Property Lessee or Operator who has
purchased the Property or has assumed the operation of the business permitted by the USR and
intends to make use of the rights and privileges available to it through the then existing USR.
2.3 Revocation of USR: This Agreement shall terminate following County's revocation of Property
Lessee's USR, except that the Property Lessee shall only be released from this Agreement after
the successful completion of all improvements required under this Agreement.
2.4 Completion of Construction: This Agreement shall terminate following Property Lessee's
completion of construction of the facilities authorized by the underlying USR. Property Lessee
shall notify the County of completion.
3.0 Revocation of USR: Property Lessee acknowledges that failure to comply with the material terms of
this Agreement constitutes cause to revoke the USR, and County may exercise this option in its sole
reasonable discretion by proceeding with revocation under the then current provisions of the Weld County
Code.
4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this
Agreement, County may seek relief in law or equity by filing an action in the Weld District Court.
2 C. Miscellaneous Provisions.
.400,
1.0 1.0 Successors and Assigns.
Li 6- 1.1 Property Lessee may not delegate, transfer, or assign this Agreement in whole or in part,
m without the prior express written consent of County and the written agreement of the party to whom
F'A the obligations under this Agreement are assigned. Consent to a delegation or an assignment will not
,14M be unreasonably withheld by County. In such case, Property Lessee's release of its obligations shall
°," be accomplished by County's execution of a new Improvements Agreement with the successor
...; % Lessee of the property.
1.2 County's rights and obligations under this Agreement shall automatically be delegated,
.1::k m transferred, or assigned to any municipality which, by and through annexation proceedings, has
m� ; assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement.
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CBEP Solar 7, LLC — USR22-0025 — RMCA23-0001
Page 4 of 7
2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without
such provision, to the extent that this Agreement is then capable of execution within the original intent of the
parties.
3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a
waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the
Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended.
4.0 No Third -Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms
and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly
reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of
action whatsoever by any other person not included in this Agreement. It is the express intention of the
undersigned parties that any entity other than the undersigned parties receiving services or benefits under this
Agreement shall be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject matter
contained in this Agreement. This instrument supersedes all prior negotiations, representations, and
understandings or agreements with respect to the subject matter contained in this Agreement. This
Agreement may be changed or supplemented only by a written instrument signed by both parties.
6.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until
it has been approved by the Board of County Commissioners of Weld County, Colorado, or its designee.
7.0 Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto,
shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included
or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and
void. In the event of a legal dispute between the parties, the parties agree that the Weld County District Court
or Federal District Court for the District of Colorado shall have exclusive jurisdiction to resolve said dispute.
8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Lessee,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney
fees and/or legal costs incurred by or on its own behalf.
9.0 Release of Liability. Property Lessee shall indemnify and hold harmless the County from any and all
liability loss and damage County may suffer as a result of all suits, actions, or claims of every nature and
description caused by, arising from, or on account of the design and construction of improvements made by
Property Lessee pursuant to this Agreement, and pay any and all judgments rendered against the County on
account of any such suit, action or claim, and notwithstanding Section 7.0 above, together with all reasonable
expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability,
loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees,
or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence
of the County or its employees while acting within the scope of their employment. All contractors and other
employees engaged in construction of the improvements shall maintain adequate worker's compensation
insurance and public liability insurance coverage and shall operate in strict accordance with the laws and
regulations of the State of Colorado governing occupational safety and health.
10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
CBEP Solar 7, LLC — USR22-0025 — RMCA23-0001
Page 5 of 7
11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is duly
authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants
to the other that the execution and delivery of the Agreement and the performance of such party's obligations
hereunder have been duly authorized, and that the Agreement is a valid and legal agreement binding on such
party and enforceable in accordance with its terms. If requested by the County, Property Lessee shall provide
the County with proof of Property Lessee's authority to enter into this Agreement within five (5) days of
receiving such request.
12.0 Acknowledgment. County and Property Lessee acknowledge that each has read this Agreement,
understands it, and agrees to be bound by its terms. Both parties further agree that this Agreement, with the
attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the parties
and supersedes all proposals or prior agreements, oral or written, and any other communications between the
parties relating to the subject matter of this Agreement.
13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential
conflict between any term in this Agreement and the Resolution of the Board of County Commissioners
approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the event
of a discrepancy between this agreement and the Weld County Code in effect at the time of the agreement,
the terms of the Weld County Code shall control
CBEP Solar 7, LLC — USR22-0025 RMCA23-0001
Page 6 of 7
PROPERTY LESSEE: CBEP Solar 7, LLC
By:
Name: Gqa.r7 0 ra.K r•*,/
Title: AvAina t eA Cla r44e
STATE OF COLORADO
County of Weld
Date ? ' 1 — aO oi..3
SS.
LMY
twoonmitinumwmounimmunuimummum
CHRISTOPHER MINWEGEN
ARY PUBLIC - STATE OF COLORADO
NOTARY ID 20224047579
0MMISSI0N EXPIRES DEC 20, 2026
S}-
The foregoing instrument was acknowledged before me this jj day offh ,
202;, by � � BCein6
WITNESS my hand and official seal.
�rsGij(,
Notary Public
WELD COUNTY:
ATTEST: dd/`t1/ `4
Weld C. n Clerk to the Bo d WELD COUNTY, COLORADO
BOARD OF COUNTY COMMISSIONERS
BY:
s �
Deputy Cle �� to e : o . `� I ) � �y �s e Freeman, Chair
MAR 2 2 2323
CBEP Solar 7, LLC — USR22-0025 - RMCA23-0001
Page 7 of 7
02-0073 - o8.51
Contract Form
New Contract Request
Entity Information
Entity Name.
CBEP SOLAR 7 LLC
Entity ID.
YO0046846
❑ New Entity?
Contract Name. Contract ID
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT 6776
CBEP SOLAR 7 LLC U5R22-0025
Contract Status
CTB REVIEW
Contract Lead.
JTRUIILLOMARTINEZ
Contract Lead Email
jtrujillomartinez@weldgov.c
OM
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description.
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT CBEP SOLAR 7 LLC USR22-0025 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type.
AGREEMENT
Amount
$0.00
Renewable
NO
Automatic Renewal
Grant
IGA
Department
PLANNING
Department Email
CM-Planning@weldgov.com
Department Head Email
CM-Planning-
DeptHeadveldgov.com
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COU NTYATTORN EYWELDG
OV.COM
Requested BOCC Agenda
Date
03 22/2023
Due Date
03/18;2023
Will a work session with BOCC be required?*
NO
Does Contract require Purchasing Dept. to be included?
NO
If this is a renewal enter previous Contract ID
If this is part of a MSA enter MSA Contract ID
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
OnBase
Contract Dates
Effective Date
Review Date
03:22:2024
Renewal Date
Termination Notice Period
Committed Delivery Date
Expiration Date
03122;2026
Contact Information
Contact Info
Contact Name
Purchasing
Contact Type Contact Email Contact Phone 1 Contact Phone 2
Purchasing Approver Purchasing Approved Date
Approval Process
Department Head
TOM PARKO JR.
DH Approved Date
03 16x'2023
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
0.3?22,2023
Originator
JTRUJILLOMARTINEZ
Finance Approver
CHERYL PATTELLI
Legal Counsel
BRUCE BARKER
Finance Approved Date Legal Counsel Approved Date
03;16;2023 03 16:2023
Tyler Ref #
AG 032223
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