HomeMy WebLinkAbout20220575.tiffBOARD OF COUNTY COMMISSIONERS
PASS AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: Paul Sater do SunShare LLC — ZPSF21-0003
DEPARTMENT: Planning Services DATE: February 1, 2022
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Briefdescription of the problem/issue:
The Department of Planning Services received a request from the applicant, Paul Sater c/o SunShare LLC,
requesting that the Board of County Commissioners consider approving the Road Maintenance During
Construction Agreement for (ZPSF21-0003). 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 Approval, 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 ZPSF21-0003, 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 -Tern VY\F"
Scott K. James, Chair
Steve Moreno
Lori Saine
Lip PL(DA/3TTK/KR/M1J)
d-iG -ate
2022-0575
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Paul Sater c/o SunShare LLC — ZPSF21-0003
THIS AGREEMENT is made this 24 day of January, 2022, by and between Paul Sater c/o SunShare
LLC, a limited liability company, organized under the laws of the State of Colorado, whose address is 1724
Gilpin Street, Denver, Colorado 80218, 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."
1Vilu�ICIY.y3I�.A
WHEREAS, Property Lessee is the lessee of the following described property in the County of Weld,
Colorado:
SE1/4 of Section 12, Township 4 North, Range 64 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
ZPSF2l-0003, and
WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly
associated with ZPSF21-0003, 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
o of the associated costs for maintaining and/or improving designated haul/travel routes.
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1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property:
g.
0ME 1) East and west along CR 46 between approved site access and CR 61.
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2) North and south along CR 61 between CR 46 and CR 50.
° m� 3) East and west along CR 50 between CR 61 and Highway 34.
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vi a c 2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 46 and travel to the nearest
m C L paved road for further dispersal. Any County roads used by traffic associated with ZPSF21-0003 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
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axle configurations unless overweight permits have been applied for and granted.
4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the
above -mentioned haul/travel route for a limited period (six months or less), Weld County Planning Services
may authorize, in writing, the deviation. 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 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.
2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project traffic
S Y 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
oLL 0x Significant Damage and shall concurrently notify County of the extent, type, timing, materials,
and quality of repair (i.e., temporary versus permanent).
m` 2.2 In County's sole discretion, County may undertake the repairs and/or improvements. Property
o- 4 m � Lessee's payment for its Proportionate Share of the road repairs/improvements will be calculated
as described in this Agreement.
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Paul Sater c/o SunShare LLC — ZPSF21-0003 — RMCA22-0001
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3.0 Proportionate Share of Road Maintenance Responsibilities:
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 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. 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
8 description caused by, arising from, or on account of said design and construction of the site specific Use
associated with ZPSF21-0003, 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
8defending 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
r arising from the intentional torts or the gross negligence of the County or its employees while acting within
the scope of their employment.
007-0
3.0 Liability for Damage to Road. Property Lessee shall be financially responsible for any and all damage
in caused to any Weld County Road as a result of the design and construction of the site -specific use associated
with ZPSF21-0003, 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.
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Read
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:
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.
Paul Sater c/o SunShare LLC — ZPSF21-0003 - RMCA22-0001
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, 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
,k in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the
o" 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
w ;; a coverage and shall operate in strict accordance with the laws and regulations of the State of Colorado governing
�LL m 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.
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ago w = Paul Sater c/o SunShare LLC — ZPSF21-0003 - RMCA22-0001
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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.
4807222 Pages: 6 of 7
03/03/2022 10:48 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County , CO
11111 rjl Y�M14I CUiIAVAN I ,1AW11111
Paul Sater c/o SunShare LLC — ZPSF21-0003 - RMCA22-0001
Page 6 of 7
PROPERTY LESSEE: SunShare LLC
By: Date Jan V a,nn 24-4 71
Name: r '
Title: Chef xafi m4 n ce,,
SARAH MASCARA
Notary Public
State of Colorado
STATE OF COLORADO ) Notary ID #20184039053
ss. [-My Commission Expires 10-03-2022
County of Weld )
The foregoing instrument was acknowledged before me this i'4 day of__________
202, by Corrin kjt�x1 -' .f Op } T1{ 'cLv aF Svn,Sk wa. L,l.G,
WITNESS my hand and official seal. L)
No Public
WELD COUNTY:
ATTEST:
Weld CecIy Clerk to the Boar
BY:
to
1S6
BOARD OF COUNTY COMMISSIONERS
WELDtOUNTY, COLORADO
4807222 Pages: 7 of 7
03/03/2022 10:48 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County , CO
1111 l VAI 11111
James, Chair
FEB 1 6 2022
Paul Sater c%o SunShare LLC — ZPSF21-0003 — RMCA22-0001
Page7of7
New Contract Request
Entity Information
Entity Name*
SUNSHARE LLC
Entity ID*
0044039
❑ New Entity?
Contract Name * Contract ID Parent Contract ID
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT 55 66
ZPSF21-0003 PAUL SATER CD SUNSHARE LLC
Contract Lead * Requires Board Approval
Contract Status JTRUJILLOMARTINEZ YES
CTR REViEW
Contract I.ead Email Department Project #
jtrujillomartinez@eldgov.c
om
Contract Description*
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT ZPSF21-0003 PAUL SATER C,,O SUNSHARE LLC NO COLLATERAL
REQUIRED
Contract Description 2
Contract Type
Department
AGREEMENT
PLANNING
Amount
Department Email
$0.00
CM-Planning@weldgov.com
Re able*
Department Head Email
NO
CM -Planning -
L ptHead@eldgovcom
Automatic Renewal
County Attorney
t
GENERAL COUNTY
ATTORNEY EMAIL
ICACounty
Attorney l
CM-
COUNTYATTORNEYWELDG
OV.COM
if this is a renewal enter
previous Contract ID
If this is part of a MSA enter MSA Contract ID
Requested C Agenda Due Date
Date* 02/12/2022
0211512022
Will a work session with SOCC be required?*
NO
Does Contract require Purchasing Dept. to be induded?
NO
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
OnBase
Contract Dates
Effective Date Review Date * Renewal Date
02115!2023
Termination Notice Period committed Delivery Date
Expiration Date*
021612024
Contact Information
Contact Info
Contact Name Contact Type Contact [mail Contact Phone a
Purchasing
Purchasing Approver Purchasing ing Date
Contact Phone 2
Approval Process
Department t Head
Finance r
Legal Counsel
TOM PAR.KO JR.
CHERYL PATTE.LLU
KARIN MCDOUCAL
DH Approved Date
Finance Approved Date
Legal Counsel Approved Date
02/09/2022
02/10/2022
02/10/2022
Fina
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