HomeMy WebLinkAbout20211669.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: SunShare, LLC — USR20-U029
DEPARTMENT: Public Works DATE: June 9, 2021
PERSON REQUESTING: Jazrryn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Public Works received a request from the applicant, SunShare, LLC, requesting that the
Board of County Commissioner consider approving the Road Maintenance During Construction Agreement for
(USR20-0029). No collateral is equired with this agreement.
Weld County Public Works, Planning Services 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 ci Public Works, Planning Services and the County Attorney's Office are
recommending approval of the Road Maintenance Agreement According To Policy for USR20-0029, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Perry L. Buck •.
Mike Freeman
Scott K. James, Pro-Tem
Steve Moreno, Chair
Lori Seine
q
Approve
Schedule
mme ndation Work Session Other/Comments:
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2021-1669
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ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Bryan Kugel Living Trust dated August 9, 2000, Gary P. Kugel Trust fbo Janice K. Kugel under will dated
October 27, 2009, Kay Kugel Sachs, Troy Skogmo, Paula R. Carr Trust dated June 14, 2016, and Cynthia L.
Waters Revocable Living Trust dated September 28, 2016, c/o SunShare, LLC — USR20-0029
THIS AGREEMENT is made this CV^ day of ,..)un ,. , 2021, by and between 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."
WITNESSETH:
WHEREAS, Property Lessee is the lessee of the following described property in the County of Weld,
Colorado:
The NE1/4 of Section 17, Township 3 North, Range 66
West of the 6th P.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Property Lessee has received Board of County Commissioner approval of USR20-0029,
and
WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly
associated with USR20-0029, for an extended period of time; and
WHEREAS, 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) East and west along CR 34 between Highway 85 and CR 29.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 34 and travel east -west to the
nearest paved road for further dispersal. Any County roads used by traffic associated with USR20-0029 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.
SunShare, LLC — USR20-0029 — RMCA21-0001
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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 Public Works 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 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 reasonably determined by 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. County
reserves the right to install traffic counters on the driveway(s) of the Property Lessee's facility. 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 reasonable opinion of County has been caused by Property Lessee's 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 Property
Lessee 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 one (1) business day
after receipt of such notice and shall commence such repair within two (2) business days 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:
SunShare, LLC — USR20-0029 — RMCA21-0001
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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 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. County shall review and consider
Property Lessee's input prior to making a final determination and assessment. County shall have sole
responsibility for determination of Property Lessee's proportionate share of costs.
Part H: GENERAL PROVISIONS
A. General Requirements:
1.0 Permits. Property Lessee is required to apply for and receive all permits required by 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 Public Works, if required. Public Works 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 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 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
a associated with USR20-0029, and pay any and all judgments rendered against County on account of any such
g suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending
such suit, action or claim except for the liability, loss, or damage arising from the intentional torts or the gross
negligence of County or its employees while acting within the scope of their employment.
82
3.0 Liability for Damage to Road. Property Lessee shall be financially responsible for any and all damage
03 caused to any Weld County Road as a result of the design and construction of the site specific Use associated
f° with USR20-0029, without regard to the negligence, or lack thereof, of Property Lessee or its agents. This
i
GI.
LL o — provision shall survive termination of this Agreement pursuant to section B.2.0, below, and shall be of no
mre o further force and effect five years after mutual execution of this Agreement.
• a "2e B. Violations of Agreement and Remedies
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ANY .~ SunShare, LLC — USR20-0029 — RMCA21-0001
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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 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
County of completion.
3.0 Revocation of USR. Property Lessee acknowledges that failure to comply with the material terms of
this Agreement (after any applicable notice and cure period) 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. This Agreement may not be delegated, transferred or assigned in whole or in
part by Property Lessee without the express written consent of County and the written agreement of the party
to whom the obligations under this Agreement are assigned. 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. Consent to a delegation or an assignment will not be unreasonably withheld or delayed by County.
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 the roads affected by this Agreement. All of the terms and conditions set forth in this
Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of
Property Lessee, and upon recording by County, shall be deemed a covenant running with the land herein
described.
SunShare, LLC — USR20-0029 — RMCA21-0001
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2.0 Governmental Immunity. No term or condition of this agreement 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.
3.0 No Third -Party Beneficiary Enforcement. 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 contained in this Agreement shall give or allow any
claim or right of action whatsoever by any other person or entity not included in this Agreement. It is the
express intention of the undersigned parties that any person or entity, other than the undersigned parties,
receiving services or benefits under this Agreement shall be an incidental beneficiary only.
4.0 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.
5.0 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.
6.0 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, Property Lessee agrees that the Weld County District Court
shall have exclusive jurisdiction to resolve said dispute.
7.0 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.
8.0 Attorney's 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 Binding Arbitration Prohibited. 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.
10.0 Authority to Sign. Each person signing this Agreement, and associated Exhibits, 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 t County,
Property Lessee shall provide County with proof of Property Lessee's authority to enter into this Agreement
within five (5) days of receiving such request.
SunShare, LLC — USR20-0029 — RMCA21-0001
Page 5 of 6
PROPERTY LE i Share, LLC
By:
Name: Clizu m
Title:'c-
STATE OF COLORADO
County of Weld
Date (pc) 3uj
ss.
SARAH MASSARA
Notary Public
State of Colorado
Notary ID # 20184039053
My Commission Expires 10-03-2022
The foregoing instrument was acknowledged before me this °jay of U 11 �. ,
202L, by Cnrrirya k t`cl Ck'te.� op�rr tobi (C 0-f- a151 -,are l;u-C-
WITNESS my hand and official seal.
Notary Public
WELD COUNTY:
ATTEST: ddrAtA) • e&40;€1
Weld .unity Clerk to the Boa d
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L.-
Deputy Cl7' to th Boar" "v"
1861 f
BY:
a
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Steve Moreno, Chair
JUN 232021
SunShare, LLC — USR20-0029 — RMCA21-0001
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o2OoZl 4 9
Entity Information
Entity Name*
SUNSHARE LLC
Entity ID*
?00044039
❑ New Entity?
Contract Name * Contract ID
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT 4872
SUNSHARE, LLC USR20-0029
Contract Status
CTB REVIEW
Contract Lead*
JTRUJILLOMARTINEZ
Contract Lead Email
jtrujitlomartinez@weldgov.c
om
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description*
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT SUNSHARE. LLC USR20-0029 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type
AGREEMENT
Amount*
$0.00
Renewable
NO
Automatic Renewal
Grant
IGA
Department
PUBLIC WORKS
Department Email
CM-
PublicWorksweldgov.com
Department Head Email
CM-PublicWorks-
DeptHead,giweldgov.com
County Attorney
BOB CHOATE
CA -minty Attorney Email
BCHOATE O. WELD.CO. US
Requested BOCC Agenda
Date*
06 23,2021
Due Date
06;19,:2021
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* Renewal Date
06/23/2022
Termination Notice Period
Contact Information
Committed Delivery Date
Expiration Date*
06,23`2023
Contact Info
Contact Name Contact Type Contact Email Contact Phone I Contact Phone 2
Purchasing
Purchasing Approver Purchasing Approved Date
CONSENT 06 18'2021
Approval Process
Department Head Finance Approver Legal Counsel
JAY MCDONALD CONSENT CONSENT
DH Approved Date Finance Approved Date Legal Counsel Approved Date
06/18/2021 06,`18;"2021 06E 18;2021
Final Approval
BOCC Approved Tyler Ref*
AG 062321
BOCC Signed Date
BOCC Agenda Date
06/232021
Originator
JTRUJILLOMARTINEZ
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