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Home My WebLink About20221999.tiff/-0 6 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement for: Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 DEPARTMENT: Planning Services DATE: June 28, 2022 PERSON REQUESTING: Jazmyn Trujillo -Martinez Brief description of the problem/issue: The Department of Planning Services received a request from the applicant, Enders Land Company, LLC do Overland Solar, LLC, requesting that the Board of County Commissioners consider approving the Road Maintenance During Construction Agreement for (USR21-0023). 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 USR21-0023, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Approve Schedule Recommendation Work Session Other/Comments: Perry L. Buck Mike Freeman, Pro-Tem Scott K. James, Chair Steve Moreno Lori Saine pLCDA%TMI WR1'4N) 61n-6-AzCPS) 743 gp//9--A 2022-1999 �L ��9 ROAD MAINTENANCE AGREEMENT ACCORDING TO REQUIREMENTS DURING THE CONSTRUCTION PERIOD Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 THIS AGREEMENT is made this 16th day of June, 2022, by and between Overland Solar, LLC, 2003 Western Avenue, Suite 225, Seattle, Washington 98121, 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: Part of the SE1/4 of Section 15, Township 2 North, Range 65 West of the 6th P.M., Weld County, Colorado hereinafter referred to as "the Property," and WHEREAS, Property Lessee has received Board of County Commissioners conditional approval of USR21-0023, and WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly associated with USR21-0023, 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 additionaltraffic. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant, and agree as follows: Part I: SITE SPECIFIC PROVISIONS A. Reserved B. Haul/Travel Routes: The Property Lessee shall be financially responsible for its proportional share la of the associated costs for maintaining and/or improving designated haul/travel routes. 83 1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property: 1) East and west along CR 22 between CR 41 and CR 49. 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 22 and remain on paved m3 roadway for further dispersal. Any County roads used by traffic associated with USR21-0023 may become r. I- part of the established haul/travel routes. LLo J r+�.,• 3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle and M£ % axle configurations unless overweight permits have been applied for and granted. paw da;y 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the ;t above -mentioned haul/travel route for a limited period (six months or less), Weld County Planning Services a;u+ may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved county eN �nSY. �N > Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 ,�,� -499? row Page 1 of 7 c :-vb`-A 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 Obligation to Maintain Current and Future Haul Routes. Property Lessee will be financially 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 above -described 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. 1.1 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 forty-eight (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. 2.0 Proportionate Share of Road Maintenance Responsibilities: 2.1 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. 2.2 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 final determination and assessment, County shall provide Property Lessee with a reasonable opportunity to review, Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 Page 2 of 7 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 final 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: 1.1 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. 1.2 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. 1.3 Transport Permits. Per Article )CV 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 description caused by, arising from, or on account of said design and construction of the site specific Use associated with USR21-0023, and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. 3.0 Liability for Damage to Road. Property Lessee shall be financially responsible for any and all damage caused to any Weld County Road as a result of the design and construction of the site -specific Use associated with USR21-0023, 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 shall be of no further force and effect ten years after mutual execution of this Agreement. B. Violations of Agreement and Remedies 1.0 Violation of Terms of Agreement. If in County's reasonable opinion, 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: Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 Page 3 of 7 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. C. Miscellaneous Provisions. 1.0 Successors and Assigns. 1.1 Property Lessee may not delegate, transfer, or assign this Agreement in whole or in part, without the prior express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. Consent to a delegation or an assignment will not be unreasonably withheld by County. In such case, Property Lessee's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with the successor owner of the property. 1.2 County's rights and obligations under this Agreement shall automatically be delegated, transferred, or assigned to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement. 2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 4.0 No Third -Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 Page 4 of 7 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, 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. 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 Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 Page 5 of 7 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. Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 Page 6 of 7 PROPERTY LESSEE: Overland Solar, LLC By: OneEnergy Development, LLC, its sole member By: Name: -V&//4 ,600i Title: GE -6% STATE OF County of K; Al Date TaW6 16, 2022 - SS. EN M ''% �� iss, �F 99�'�, s;;,y,�y NOTARY N': C BL .: _ '7 F lyumbec 1 ':s° In The foregoing instrument was acknowledged before me this i� day of 202 2, by -1 -7, -sit,, oc+ m f :,t (J LLC, the sole member of Overland Solar, LLC. WITNESS my hand and official seal. Notary Public of OneEnergy Development, WELD COUNTY: ATTEST: Weld Co , Clerk to the Bo BY: th ♦,Z1 Deputy Cle to ; Boar BOARD OF COUNTY COMMISSIONERS WELCOUNTY, COLORADO K. James, Chair 'JUL 1 3 2022 Enders Land Company, LLC c/o Overland Solar, LLC — USR21-0023 - RMCA22-0009 Page 7of7 'J0 /g,' Contract Form New Contract Request Entity Information Entity Name" OVERLAND SOLAR LLC Entity ID" O0©45782 ❑ New Entity? Contract Name" Contract ID ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT 6112 ENDERS LAND COMPANY LLC C O OVERLAND SOLAR LLC USR21-0023 Contract Status CTB REVIEW Contract Lead" JTRUJILLOMARTINEZ Contract Lead Email jtrujillomartinez@ weldgov.c om Parent Contract ID Requires Board Approval YES Department Project # Contract Description" ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT ENDERS LAND COMPANY LLC Cr O OVERLAND SOLAR LLC. USR21-0023 NO COLLATERAL REQUIRED Contract Description 2 Contract Type" AGREEMENT Amount" $0.00 Renewable" NO Automatic Renewal Grant IGA Department PLANNING Department Email CM-PlanningOVeldgov.com Department Head Email CM-Planning- DeptHead@ weldgov,com County Attorney GENERAL COUNTY ATTORNEY EMAIL County Attorney Email CM- COU NTYATTO RN EY.a WELDG OV,COM If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Requested BOCC Agenda Date * 07x11:2022 Due Date 07:07.022 Will a work session with BOCC be required?" NO Does Contract require Purchasing Dept. to be included? NO Note the Previous Contract Number and Master Services Agreement Number should he left blank if those contracts are not in On Base Contract Dates Effective Date Review Date" 07,11 202 Renewal Date Termination Notice Period Committed Delivery Date Expiration Date. 07,'11,2024 Contact Information Contact Info Contact Name Purchasing Purchasing Approver Approval Process Department Head TOM PARK() JR. DH Approved Date 07£06;2022 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 07/ 1.3,'2022 Originator JTRUJILLOMARTINEZ LLOMARTINEZ Contact Type Contact Email Contact Phone 1 Contact Phone 2 Finance Approver CHERYL PATTELLI Purchasing Approved Date Legal Counsel BRUCE BARKER Finance Approved Date Legal Counsel Approved Date 07;07x2022 07,07 2022 Tyler Ref # AG 071322 Hello