HomeMy WebLinkAbout20221731.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23, LLC —ZPSF22-0002
DEPARTMENT: Planning Services DATE: May 31, 2022
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problemlissue:
The Department of Planning Services received a request from the applicant, Roberta McGregor and Dorothy
Davis c/o Pivot Energy and Pivot Solar 23, LLC, requesting that the Board of County Commissioners consider
approving the Road Maintenance During Construction Agreement for (ZPSF22-0002). 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 ZPSF Permit Resolution, as signed by the Director
of Planning Services.
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 ZPSF22-0002, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Perry L. Buck
Mike Freeman, Pro-Tem
Scott K. James, Chair
Steve Moreno
Lori Saine
Approve
Schedule
Recommendation Work Session Other/Comments:
-Nah,0
PL(DA/z17,/KR/P0-1)
%/loa-q"--1-'' 6 t - Cr9
oav -7/02 WAA
2022-1731
Y'L2a�3o
Karla Ford
From:
Sent:
To:
Subject:
yes
Lori Saine
Weld County Commissioner, District 3
1150 O Street
PO Box 7S8
Greeley CO 80632
Phone: 970-400-4205
Fax: 970-336-7233
Email: lsaine@weldgov.com
Website: www.co.weld.co.us
In God We Trust
Lori Saine
Tuesday, June 7, 2022 1:45 PM
Karla Ford
RE: Please Reply - Planning PA REVIEW - ZPSF22-0002 - Pivot Solar 23
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for
the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise
protected from disclosure. If you have received this communication in error, please immediately notify sender by return
e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the
contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited.
From: Karla Ford <kford@weldgov.com>
Sent: Tuesday, June 7, 2022 8:S9 AM
To: Lori Saine <Isaine@weldgov.com>
Subject: Please Reply - Planning PA REVIEW - ZPSF22-0002 - Pivot Solar 23
Importance: High
Please advise if you approve recommendation. Thanks.
Karla Ford
Executive Assistant & Office Manager, Board of Weld County Commissioners
1150 O Street, P.O. Box 758, Greeley, Colorado 80632
:: 970.336-7204 :: kford tr.weldgov.com :: www,weldgov.com
"@/ease note my working hours are Monday -Thursday 7:00a.m.-5:00p.m.**
Cr
1
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23, LLC — ZPSF22-0002
THIS AGREEMENT is made this Z3 day of /14Y , 2022, by and between Roberta
McGregor and Dorothy Davis, 22440 County Road 35, LaSalle, Colorado 80645 c/o Pivot Energy and Pivot
Solar 23, LLC, 1750 15th Street, Suite 400, Denver, Colorado 80202, 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 owner of the following described property in the County of Weld,
Colorado:
Lot B of Recorded Exemption, RE -446; being a part of
the SW1/4 of Section 12, Township 4 North, Range 66
West of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Lessee has received the Director of Planning Services conditional approval of
ZPSF22-0002, and
WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly
associated with ZPSF22-0002, 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
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.
1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property:
1) North and south along CR 35 between approved site access and Highway 85.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 35 and remain on paved
roadways for further dispersal. Any County roads used by traffic associated with ZPSF22-0002 may become
part of the established haul/travel routes.
3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle and
axle configurations unless overweight permits have been applied for and granted.
4.0 Temporary Deviations. In unusual or rare occasions, if projects inundate deviation from the m"=
®�
at
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23. LLC — ZPSF22-0002 — RMCA22-001 I °ac �~
Page 1 of isoS>.M
above -mentioned 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 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).
1.2 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.
Es
2.0 Proportionate Share of Road Maintenance Responsibilities: um.
�3a
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 it; LL o2
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 i,=g
Axle Load (ESAL) Counts. Property Lessee shall not be responsible for traffic that is not sourced as
from the Property Lessee's facility. 1j1Dtm
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23, LLC — ZPSF22-0002 — RMCA22-0011
Page 2 of 7
Nc� �
m Z
No�
Bm a�
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,
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 I 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 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
description caused by, arising from, or on account of said design and construction of the site -specific Use
associated with ZPSF22-0002, 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 a�
with ZPSF22-0002, without regard to the negligence, or lack thereof, of Property Lessee or its agents. This o
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. m3'�
pit
B. Violations of Agreement and Remedies: o
LL8
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 N
g � p Y P h' :E. 5E.
and circumstances which County believes constitute the violation. Property Lessee shall have thirty (30) days "...Lit
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.
BNo
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23, LLC — ZPSF22-0002 — RMCA22-0011
Page 3of7
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 ZPSF. 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 ZPSF 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 ZPSF and
intends to make use of the rights and privileges available to it through the then existing ZPSF.
2.3 Revocation of ZPSF: This Agreement shall terminate following County's revocation of Property
Lessee's ZPSF, 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 ZPSF. Property Lessee
shall notify the County of completion.
3.0 Revocation of ZPSF. Property Lessee acknowledges that failure to comply with the material terms of
this Agreement constitutes cause to revoke the ZPSF, and County may exercise this option in its sole reasonable
discretion by proceeding with revocation under the then current provisions of the Weld County Code.
4.0 Court action. Upon notice of violation and failure to cure within the time permitted by this Agreement,
County may seek relief in law or equity by filing an action in the Weld District Court.
C. Miscellaneous Provisions:
1.0 1.0 Successors and Assigns:
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
3
'a U
Dar
2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or I F-1`1
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 .1: €(1
parties.
3.0 Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a Ej.1.1,NE
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. N
csoNpM
ANY`~
00_>�
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23. LLC — ZPSF22-0002 - RMCA22-0011
Page 4 of 7
.ai
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, 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 O
extra judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by --a--
reference shall be null and void.
i
1 1.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is duly aZ
authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants m3�
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 o a4.
party and enforceable in accordance with its terms. If requested by the County, Property Lessee shall provide nLL 8�
the County with proof of Property Lessee's authority to enter into this Agreement within five (5) days of .. -e
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 N=�
ENO
Roberta McGregor and Dorothy Davis do Pivot Energy and Pivot Solar 23, LLC — ZPSF22-0002 - RMCA22-0011 am
Page5of7 er,—=
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.
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23. LLC — ZPSF22-0002 — RMCA22-001 1
Page 6 of 7
PROPERTY LESSEE: Pivot Energy and Pivot Solar 23, LLC
By: Name: janu444 t fZT4Er,GK
Title: A k th.,;,,,I tee/ref-m/4/v,
STATE OF COLORADO
County of Weld
Date /11Giy 23i 2.022
SS.
Diego Lopez -Duran
NOTARY PUBLIC
STATE OF COLORADO
NOTARY 12021 27.2025
MY COMMISSION EXPIRES
The foregoing instrument was acknowledged before me this Z3 day of /1/a)'
2022, by c%`cre6hav, F2�3 fa6c,GK
WITNESS my hand and official seal.
Notary Public
WELD COUNTY:
ddrifitA)
ATTEST: .1d44;°i'
Weld C• n Clerk to the Bo
BY:
Deputy Cle
BOARD OF COUNTY COMMISSIONERS
WECOUNTY, COLORADO
colt K. James, Chair
JUN 2 0 2022
Roberta McGregor and Dorothy Davis c/o Pivot Energy and Pivot Solar 23. LLC — ZPSF22-0002 — RMCA22-0011
Page 7 of 7 07002a-4751
Contract Form
New Contract Request
Entity Information
Entity Name*
PIVOT SOLAR 23 LLC
Entity ID
W00045642
❑ New Entity?
Contract Name* Contract ID
ROAD MAINTENANCE DURING CONSTRUCTION ROBERTA 5984
MCGREGOR AND DOROTHY DAVIS C O PIVOT ENERGY AND
Contract Lead*
PIVOT SOLAR 23 LLC ZPSF22-0002
Contract Status
CTB REVIEW
JTRUJILLOMARTINEZ
Contract Lead Email
itrtuillomartinez@ weldgov.c
om
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description *
ROAD MAINTENANCE DURING CONSTRUCTION ROBERTA MCGREGOR AND DOROTHY DAVIS C/O PIVOT ENERGY AND PIVOT
SOLAR 23 LLC ZPSF22-L00002 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type*
AGREEMENT
Amount "1
$0.00
Renewable'
NO
Automatic Renewal
Grant
IGA
Department
PLANNING
Department Email
CM-Planningweldgov.com
Department Head Email
CM -Planning- Does Contract require Purchasing Dept. t
DeptHeadWiiveldgov.corn NO
Requested BOCC Agenda
Date*
06 15,2022
Due Date
05`11;'2€122
Will a work session with BOCC be required?*
NO
County Attorney
GENERAL COUNTY
Al I ORNEY EMAIL
County Attorney Email
CM-
COU NTYATTORN EY WWELDG
OV.COM
u
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 Dale* Renewal Date
06 15 2023
Termination Notice Period
Committed Delivery Date
Expiration Date*
06x15;'2024
Contact Information
Contact Info
Contact Name
Purchasing
Contact Type Contact Email
Contact Phone 1 Contact Phone 2
Purchasing • + r Purchasing Approved Date
Approval Process
Department Head
TOM PARKO JR.
DH Approved Date
06,13,x2022
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
06 20:2022
Originator
JTRUJILLOMARTINEZ
Finance Approver
CHERYL PATTELLI
Legal Counsel
BRUCE BARKER
Finance Approved Date Legal Counsel Approved Date
06;`14x'2022 06;14,x2022
Tyler Ref #
AC 062022
Hello