HomeMy WebLinkAbout20212723.tiffBOARD OF COUNTY COMMISSIONERS
PASS AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance During Construction Agreement
for: Caw Equities LLC c/o Sun Share, LLC — USR21-0004
DEPARTMENT: Planning Services DATE: August 24, 2021
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Planning Services received a request from the applicant, Caw Equities LLC do Sun Share,
LLC, requesting that .the Board of County Commissioners consider approving the Road Maintenance During
Construction Agreement for (USR21-0004). 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 Heating 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 USR21-0004, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Approve
Recommendation
Perry L. Buck
Mike Freeman
Scott K. James, Pro-Tem
Steve Moreno, Chair
Lori Saine
Schedule
Work Session Other/Comments:
PL-6)/4/3T/Krt/DA)
10/ 42.i
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/0/02i/02J
2021-2723
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ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Caw Equities LLC, c/o SunShare, LLC — USR21-000.4
THIS AGREEMENT is made this L ' day of A -u Cq , 2011 , by and between SunShare, LLC,
a limited liability company organized under the laws of the St t� e 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:
Being part of the SW 1/4 of Section 20, 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 Board of County Commissioners approval of USR21-0004,
and
WHEREAS, the Property Lessee facility will generate additional vehicles and heavy traffic directly
associated with USR21-0004, 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) East and west along CR 42 between approved site access and U.S. Highway 85.
2.0 Haul trucks shall enter and exit the site at the approved access on CR 42 remain on paved road for
further dispersal. Any County roads used by traffic associated with USR21-0004 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 mandate deviation from the
above -mentioned haul/travel route for a limited period (six months or less), Weld County Public Works may
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Caw Equities, LLC do SunShare, LLC — USR21-0004 — RMCA21-0010
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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 MI
Lessee's payment for its Proportionate Share of the road repairs/improvements will be calculated
as described in this Agreement. O
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2.0 Proportionate Share of Road Maintenance Responsibilities:
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2.1 Property Lessee shall pay its Proportionate Share of costs of dust control/abatement, paving,
repairs, or maintenance of any Haul Route Road. Property Lessee's Proportionate Share shall be j
based upon the percentage of traffic on the road that is attributable to Property Lessee's facility. iota
County personnel will determine the percentage based on then current Equivalent Single Axle le.
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Load (ESAL) Counts. Property Lessee shall not be responsible for traffic that is not sourced from NIL
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the Property Lessee's facility. -- iral
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2.2 The County shall notify Property Lessee of County's preliminary determination and assessment ZS m
of Property Lessee's proportionate share of costs. Prior to County's final determination and 00A
assessment, County shall provide Property Lessee with a reasonable opportunity to review, a
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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 Public Works. 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 the County from any and all
liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and
description caused by, arising from, or on account of said design and construction of the site specific Use
associated with USR21-0004, and pay any and all judgments rendered against the County on account of any
such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in
defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the
negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage
arising from the intentional torts or the gross negligence of the County or its employees while acting within
the scope of their employment.
3.0 Liability for Damage to Road. Property Lessee shall be financially responsible for any and all damage
caused to any Weld County Road as a result of the design and construction of the site specific Use associated
with USR21-0004, without regard to the negligence, or lack thereof, of Property Lessee or its agents. This
provision shall survive Termination of this Agreement pursuant to section B.2.0, below, and shall be of no
further force and effect ten years after mutual execution of this Agreement.
B. Violations of Agreement and Remedies
1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Property Lessee has violated any
of the terms of this Agreement, County shall so notify Property Lessee and shall state with specificity the facts
and circumstances which County believes constitute the violation. Property Lessee shall have thirty (30) days
within which to either cure the violation or demonstrate compliance. Thereafter, County may seek any remedy
described in this Agreement or otherwise provided by law.
2.0 Termination of Agreement: 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
Caw Equities, LLC c/o SunShare, LLC — USR21-0004 — RMCA21-0010
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activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a
partial release constitute a Termination. Unless informed in writing by the Property Lessee of
cessation of activities, and verified by the County, cessation shall be presumed if the County
determines that the USR has been inactive for three (3) years.
2.2 Execution of Replacement Agreement: This Agreement shall terminate following County's
execution of a new Improvements Agreement with a new Property Lessee or Operator who has
purchased the Property or has assumed the operation of the business permitted by the USR, and
intends to make use of the rights and privileges available to it through the then existing USR.
2.3 Revocation of USR: This Agreement shall terminate following County's revocation of Property
Lessee's USR, except that the Property Lessee shall only be released from this Agreement after
the successful completion of all improvements required under this Agreement.
2.4 Completion of Construction: This Agreement shall terminate following Property Lessee's
completion of construction of the facilities authorized by the underlying USR. Property Lessee
shall notify the County of completion.
3.0 Revocation of USR: Property Lessee acknowledges that failure to comply with the material terms of
this Agreement (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 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
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Caw Equities, LLC c/o SunShare, LLC — USR21-0004 — RMCA21-0010 wNY
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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 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.
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, Property Lessee agrees that the Weld County District Court
shall have exclusive jurisdiction to resolve said dispute.
8.0 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.
9.0 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.
10.0 Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
11.0 Authority to Sign: Each person signing this Agreement, 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.
12.0 Acknowledgment. County and Property Owner 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.
4759461 Pages: 5 of 6
09/24/2021 10:05 AM Re Fede:$0.O d County CO
Carly Koppes,
laloll
Caw Equities, LLC c/o SunShare, LLC — USR21-0004 — RMCA21-0010
Page 5 of 6
PROPERTY .F.SSEF• SunShare, LLC
By:
Name: Cow i i1 �...061t1
Title: Chide c OVCGA-loco
STATE OF COLORADO
County of Weld
Date T.--1,(9 `2O21
ss.
SARAH MASSARA
Notary Public
State of Colorado
Notary ID* 20184039053
M Commission Ex ;fires 10-03-2022
The foregoing instrument was acknowledged before me this ((ay of Ij v t)
202 t , by Corro- e4- o€e,csx c ,Skave Ltc-
WITNESS my hand and official seal.
LACW/JA—`01,deVAO'L__
Notary Public
WELD COUNTY:
ATTEST: BOARD OF COUNTY COMMISSIONERS
Weld Co . nt}) Clerk to the Bo. d WELD COUNTY, COLORADO
BY:
Deputy Cle to th Boar
Steve Moreno, Chair
SEP 2 0 2021
4759461 Pages: 6 of 6
09/24/2021 10:05 AMd Recorder, :0.00 County CO
Carly Koppes, Clerk
11111
Caw Equities, LLC c/o SunShare, LLC — USR21-0004 — RMCA21-0010
Page 6 of 6
��ou-.27023
Cheryl Hoffman
From:
Sent:
To:
Cc:
Subject:
Hi Cheryl,
Jazmyn Trujillo Martinez
Friday, September 17, 2021 11:35 AM
Cheryl Hoffman
Esther Gesick; Chloe Rempel
RE: Caw Equities LLC c/o Sun Share LLC - USR21-0004
Caw Equities is the new property owner, they purchased the property from Wetco Farms in June. They do not need to
sign the agreement because the RMCA is just with the applicant/lessee, SunShare.
Best,
Jazmyn Trujillo -Martinez
Development Review
Weld County Planning Services
1555 North 17th Avenue
Greeley, CO 80631
(970) 400-3711
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: Cheryl Hoffman <choffman@weldgov.com>
Sent: Friday, September 17, 2021 11:31 AM
To: Jazmyn Trujillo Martinez <jtrujillomartinez@weldgov.com>
Cc: Esther Gesick <egesick@weldgov.com>; Chloe Rempel <crempel@weldgov.com>; Cheryl Hoffman
<choffman@weldgov.com>
Subject: Caw Equities LLC c/o Sun Share LLC - USR21-0004
Importance: High
Good morning, Jazmyn,
I just left you a voicemail about this one. We are planning on putting this on Monday's agenda, but need to hear from
you if Caw Equities needs to sign too, or who they are? The Resolution applicant was Wetco Farms.
Let me know as soon as possible.
Thanks!
1
Cheryl L. Hoffman
Deputy Clerk to the Board
1150 O Street/P.O. Box 758
Greeley, CO 80632
Tel: (970) 400.4227
choffman@weldgov.com
2
Hello