HomeMy WebLinkAbout20183228.tiff/ .2./0.17
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item — Road Maintenance Agreement for:
Oak Leaf Solar XXVIII, LLC — USR18-0004
DEPARTMENT: Public Works DATE: 9/5/2018
PERSON REQUESTING: Evan Pinkham
Brief description of the issue:
The Department of Public Works received a request from the applicant, Oak Leaf Solar XXVIII, LLC,
requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for
the solar facility (USR18-0004).
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 "Improvements & Road Maintenance Agreement According To Policy
Regarding Collateral For Improvements", are found to be acceptable.
What options exist for the Board?
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 I. The Departments of Public Works, Planning Services and the County Attorney's Office are
recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding
Collateral For Improvements for USR 18-0004, and that this item be placed on the next regularly scheduled BOCC
Hearing, as part of the Consent Agenda.
Approve
Recommendation
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro-Tem
Steve Moreno, Chair
Schedule as Regular
BOCC Hearing Item Other/Comments:
Ox -6.600 CA))
208.3228
ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLT ,ATERAL FOR IMPROVEMENTS
Cek Leaf 5oc y)(WM— SR18-0004
THIS AGREEMENT is made this 17 day of August, 2018, by and between Oak Leaf Solar
XXVIII LLC, a limited liability company organized under the laws of the State of Colorado, whose
address is 2645 E rd Avenue, Denver, CO, 80206, 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 "0"
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:
Part of the SE4 of Section 9, T3N, R66W of the 6th P.M., Weld County, CO
hereinafter referred to as "the Property," and
WHEREAS, Property Lessee has received Board of County Commissioner approval of USR18-
0004, and
WHEREAS, Property Lessee acknowledges that the final approval of USR18-0004 is conditional
upon Property Lessee's funding of road maintenance described in this Agreement.
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 1: SITE SPECIFIC PROVISIONS
A. Haul Routes: The Property Lessee shall be financially responsible for its proportional share of
the County's costs associated with 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 36 to the closest paved road.
2.0 Haul trucks shall enter and exit the site at the approved access(es) on CR 36 and travel east -west
to the nearest paved road for further dispersal. Any unpaved County roads used by USR18-0004 traffic
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 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.
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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.
B. Maintenance Requirements:
2.0 Dust Control. Property Lessee shall be financially responsible for its proportional share of dust
control on unpaved designated haul/travel routes after commencement of operation. The amount and
extent of dust control will be determined by site -specific conditions at the time, as determined exclusively
by County personnel. Dust abatement along the relevant haul/travel routes is expected to occur
approximately two to five times per year. Dust abatement is required for roads with more than 200
vehicles per day, per section 8-6-100 of the Weld County Code.
2.1 Dust Control During Construction. If necessary, as determined by the County, the
Property Lessee shall cause to be performed within 30 days of notification, at its sole expense,
dust control by a contractor approved by Weld County Public Works during the construction
period of the development.
3.0 Repair. Property Lessee shall be financially responsible for its proportional share of excavation,
patching, and pavement repair on designated haul/travel routes. The amount and extent of repair and
paving measures will be determined by site -specific conditions at the time, as determined exclusively by
County personnel.
4.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel 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).
5.0 Repair of Road: On or before December 31 of the calendar year in which County staff has
determined through site analysis and/or pavement testing that a particular haul/travel route road portion
will require paving measures in order to protect the public health, safety, and welfare, and the County has
budgeted sufficient funds for the following calendar year to pay its share of the Off -Site
Improvement/Repair Costs, County shall notify Property Lessee in writing that the Ofd Site
Improvements/Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of
the need to undertake the road maintenance repairs and/or improvements, Property Lessee shall submit
Off -Site Construction Plans and Cost Estimates to County for review. Property Lessee shall have sole
responsibility for the completion of the repairs and/or improvements on or before December 15 of the
year following County's notice of the need for repairs.
5.1 In County's sole discretion, County may undertake the repairs and/or improvements.
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Property Lessee's payment for its Proportionate Share of the road repairs/improvements will be
calculated as determined in this Agreement. Property Lessee will be invoiced accordingly for
those proportional share costs.
6.0 Calculation of Property Lessee's Proportional Share of Costs. The County shall notify Property
Lessee of County's preliminary determination and assessment of Property Lessee's proportional share of
costs of maintenance, repair, or improvements to Property Lessee's designated haul/travel routes. 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 fmal
determination and assessment. The County shall have sole responsibility for determination of Property
Lessee's proportional share of costs. Property Lessee agrees to pay such proportional share of costs within
30 days of receiving an invoice from County.
7.0 Annual Road Inspection. County may conduct a road inspection annually with the cooperation of
Property Lessee and all other Property Lessees and/or Lessees who are required by County to participate
in road improvement/maintenance agreements for the haul routes designated in this Agreement. As a
result of the annual inspection, County, in its sole discretion, shall determine actual conditions and shall
further determine what road repair/improvement/maintenance work is to be performed during that
construction season. Notification to the Property Lessee of the required roadway repairs will be given as
soon as the data become available.
8.0 Notification. The County shall notify Property Lessee of County's preliminary determination and
assessment of Property Lessee's proportionate share of costs of maintenance, repair, or improvements to
Property Lessee's designated haul/travel routes. 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.
PART 2: GENERAL PROVISIONS
A. Collateral:
1.0 General Requirements for Collateral. No collateral is required for this project.
B. Access and Right -of -Way Permits:
1.0 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 V of Chapter 12 of the Weld County Code.
2.0 Right -of -Way (ROW) Permits. Per Article IV of Chapter 12 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.
C. Enforcement and Remedies:
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1.0 Violation of Terms of Agreement. If in County's opinion, Property Lessee has violated any of the
terms of this Agreement, County shall notify Property Lessee of its belief that the Agreement has been
violated and shall state with specificity the facts and circumstances which County believes constitute the
violation. Property Lessee shall have fifteen (15) days within which to either cure the violation or
demonstrate compliance. If, after fifteen (15) days have elapsed, County believes in good faith that the
violation is continuing, County may consider Property Lessee to be in breach of this Agreement.
2.0 Remedies for Breach by Property Lessee. In the event that County determines that Property
Lessee has violated the terms of this Agreement, and has failed to correct said violation, County may
exercise any or all of the following remedies, or any other remedy available in law or equity.
2.1 Withholding Permits. County may "lock" any or all lots within the Property, which
precludes the continued issuance of building permits, zoning permits, septic permits, or any other
permit issued by any department of the County.
2.2 Court Action. County may seek relief in law or equity by filing an action in the Weld
District Court or Federal District Court for the District of Colorado.
2.3 Revocation of USR Permit. Property Lessee acknowledges that failure to comply with the
terms of this Agreement constitutes cause to revoke the USR, and County may exercise this
option in its sole discretion by proceeding with revocation under the then current provisions of
the Weld County Code.
3.0 Termination of Agreement, This Agreement shall terminate upon the earliest of the following
events:
3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of
the underlying land use approval under Weld County Code section 23-2-290. However, County
may still exercise all necessary activities under this Agreement that the County determines
necessary to protect the health, safety, and welfare of the residents of Weld County.
3.2 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 including any
clean up or restoration required. A partial cessation of activities shall not constitute a Termination
of this Agreement, nor shall County's issuance of a partial release/vacation constitute a
Termination. Unless informed in writing by the Property Lessee of cessation of activities, and
verified by the County, cessation shall only be presumed if the County determines that the USR
has been inactive for three (3) years.
3.3 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.
3.4 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,
which may be completed by County if Property Lessee fails to complete such improvements.
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3.5 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.
K. General Provisions:
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 Lessee of the property.
1.2 County's rights and obligations under this Agreement shall automatically be delegated,
transferred, or assigned to any municipality which, by and through annexation proceedings, has
assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement.
2.0 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 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, 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.
7.0 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.
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8.0 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 any design and construction of improvements by
Property Lessee pursuant to this Agreement, and pay any and all judgments rendered against the County
on account of any such suit, action or claim, and notwithstanding section 7.0 above, together with all
reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether
the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers,
agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts
or the gross negligence of the County or its employees while acting within the scope of their employment.
All contractors and other employees engaged in construction of any such improvements shall maintain
adequate worker's compensation insurance and public liability insurance coverage, and shall operate in
strict accordance with the laws and regulations of the State of Colorado governing occupational safety
and health.
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 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.
11.0 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.
12.0 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.
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97863004.2 0065593-00008
PROP RTY E S E:
By:
Name:
Title:
C'
ee L
STATE OF COLORADO
County of ld DR &hi;
Date
SS.
��. 4, -( l �� Zo i d
KYLE DAMIAN SUNDMAN
Notary Public
State of Colorado
Notary ID # 20184014949
My Commission Expires 04-04-2022
The foregoing instrument was acknowledged before me this f l day of A0
201 S by M k dtE3-- &c- 4 e14 r �o �.F sr -_ ?ck' u 1.1..z -
WITNESS my hand and official seal.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY:
A 1"1'I,ST:
Weld
BY
Deputy
oard WELD COUNTY, COLORADO
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Carly Koppes, Clerk and Recorder, Weld County, CO
14UrdICPAA: In Ira Pita II
97863004.2 0065593-00008
teve Moreno, Chair OCT 0 8 2018
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