HomeMy WebLinkAbout20210829.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: Pivot Solar 4 LLC — USR20-0012
DEPARTMENT: Public Works DATE: March 9, 2021
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Public Works received a request from the applicant, Pivot Solar 4 LLC, requesting that the
Board of County Commissioners consider approving the Road Maintenance During Construction Agreement for
(USR20-0012). No collateral is required 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 of Public Works, Planning Services and the County Attorney's Office are
recommending approval of the Road Maintenance Agreement According To Policy for USR20-0012, 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
Scott K. James, Pro-Tem
Steve Moreno, Chair
Lori Saine
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G.,pt,i(DA/STIA/ 1./TA), PL(KR/.A) 2021-0829
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ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Pivot Solar 4 LLC — USR20-0012
THIS AGREEMENT is made this j_� day of f\'1\ rr�_�. , 202 1 , by and between Pivot Solar 4
LLC. 1?50 15th Street, #400, Denver, Colorado 80202, a limited liability company organized under the laws
of the State of Colorado, 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."
WITNES SETH:
WHEREAS, Property Lessee is the owner of the following described property in the County of Weld,
Colorado:
Subdivision Exemption, SUBX20-0006; being part of
NE1/4 of Section 16, 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 the Board of Weld County Commissioners approval of
USR20-0012, and
WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly
associated with USR20-0012, 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
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 31 between CR 36 and site access.
2) East and west along CR 36 between US Highway 85 and CR 31.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 31 and travel north on CR
31 to CR 36 westbound to the nearest paved road for further dispersal. Any County roads used by traffic
associated with USR20-0012 may become part of the established haul/travel routes.
Pivot Solar 4 LLC — USR20-0012 - RMCA20-0006
Page 1 of 6
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 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 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 Department of Public Works. 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.
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2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project traffic
2 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
wextent, 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
6'1 m � forty-eight (48) hours after receipt of such notice.
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el 1 w -8M 2.2 In County's sole discretion, County may undertake the repairs and/or improvements. Property
° LL n _A Lessee's payment for its Proportionate Share of the road repairs/improvements will be calculated
Nix Er � as described in this Agreement.
Y 3.0 Proportionate Share of Road Maintenance Responsibilities:
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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 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 must still apply for and abide by the terms of any necessary right-of-way
permits, grading permits, and building permits. No work may occur in the County's right-of-way without a
County -issued right-of-way permit and access permit.
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 USR20-0012, 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 USR20-0012, 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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B. Violations of Agreement and Remedies
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a 1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Property Lessee has violated any
o.=_ of the terms of this Agreement, County shall so notify Property Lessee and shall state with specificity the facts
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and circumstances which County believes constitute the violation. Property Lessee shall have thirty (30) days
m3 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.
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2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of
the following events:
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o�.4mr 2.1 Cessation of all Permit Related Activities: Termination of this Agreement shall occur upon
�" Ze Property Lessee's complete cessation of all activities permitted by the USR. A partial cessation of
a a� activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a
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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: 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 the County, shall be deemed a covenant running with the land herein
described.
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
Pivot Solar 4 LLC — USR20-0012 - RMCA20-0006
Page 4 of 6
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 Contract Professional,
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: 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.
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 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.
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Pivot Solar 4 LLC — USR20-0012 — RMCA20-0006
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PROPERTY SSEE: Pivot Solar 4 LLC
By: Date
Name: S.,) �41i
Title: ,kf Piero ck De� ebort-w�
J
STATE OF COLORADO
SS.
County of Weld
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The foregoing instrument was acknowledged before me this day of Mares ,
202 1, by �pY�a�11�r L. Solkvay.
WITNESS rrly hand and official seal.
Kathleen R Kelly
NOTARY PUBLIC
STATE OF COLORADO
NOTARY IDS 20204020315
MY COMMISSION EXPIRES June 10, 2024
Notary Public
WELD COUNTY:
ATTEST: a. Xii0•tik
Weld Co�fii v Clerk to the Boar
BY:
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BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Steve Moreno, Chair MAR 2 2 2021
Pivot Solar 4 LLC — USR20-0012 - RMCA20-0006
Page 6 of 6
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Entity Information
Entity Name "
PIVOT SOLAR 4 LLC
Entity ID*
O30043537
❑ New Entity?
Contract Name* Contract ID
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT 4558
USR20-13012 PIVOT SOLAR 4 LLC.
Contract Status
CT6 REVIEW
Contract Lead*
JTRUJI LLOMARTI N EZ
Contract Lead Email
jtrujillomartmezPweldgov.c
om
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description*
ROAD MAINTENANCE DURING CONSTRUCTION AGREEMENT USR20-0012 PIVOT SOLAR 4 LLC NO COLLATERAL REQUIRED
Contract Description 2
Contract Type "
AGREEMENT
Amount *
$0.00
Renewable*
NO
is Rer
Grant
Department
PUBLIC WORKS
Department Entail
CM-
Pubi icWorks��weldgov. com
Department Head Email
CM-PublicWorks-
DeptHead weldgov.cam
County Attorney
BOB CHOATE
County Attorney Email
BCHOATE,gCO. WELD.CO. U S
If this is a renewal enter previous Contract ID
a
enter MBA Contract ID
Requested BOCC Agenda
Date*
032212021
Due [late
03r 18r2021
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 be left blank if those contracts are not in
OnBase
Contract [dates
Effective Date
Termination Notice Period
Contact Information
Review Date
03/2212022
Committed Delivery plate
Renewal Date
Expiration plate
03/22S2023
Contact Info
Contact Name
Contact Phone 1
Contact Phone 2
Purchasirtg
Purchasing Approver
CONSENT
Approval Process
Department Head
JAY MCDONALD
DH Approved Date
03/12,x2021
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
03"22/2021
Originator
JTRUJ I LLOMARTI NEZ
Contact Type Contact Email
Finance Approver
CONSENT
Purchasing Approved Date
03/12/2021
Finance Approved Date
03/1212021
Tyler Ref #
AG 033221
Legal Counsel
CONSENT
Legal Counsel Approved Date
03;'12/2021
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