The URL can be used to link to this page

Browse Search

Home My WebLink About20170851.tiffRESOLUTION RE: ACTION OF BOARD CONCERNING APPEAL OF ACCESS PERMIT, AP16-00167 - HEARTLAND BIOGAS, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board of County Commissioners has received an appeal from Heartland Biogas, LLC, concerning the decision by the Department of Public Works to deny the application to extend the use of a temporary Access Point W-44 given that the access point was to be closed after the construction of Access W-45 (CR 40) was constructed under AP16-00167, in relation to USR-1704, and WHEREAS, pursuant to Weld County Code Sections 2-4-10 and 12-5-100, such appeal to the Board is considered to be "de novo," and WHEREAS, upon consideration of all of the evidence presented, including a review of all information submitted by Heartland Biogas, LLC, and the Department of Public Works, the Board deems it advisable to deny the appeal. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the appeal be, and hereby is, denied. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 27th day of March, A.D., 2017. ATTEST: j4Q . ,to•el Weld County Clerk to the Board ounty Attorney Date of signature: / 131 I "1 4293779 Pages: 1 of 1 04/14/2017 11:01 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII 1��14Gi17l��ti:I�E�'�� h�� i�'�4l�lM��l�,lM kiY�h "Ill BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO 7 ulie A. Cozad, Chair arbara Kirkmeyer cc PW CJL), �,co• l i) O.-PPL 2017-0851 PL2072 EG0074 MEMORANDUM TO: Board of County Commissioners DATE: March 16, 2017 FROM: Janet Lundquist, Public Works SUBJECT: Access Denial Appeal AP16-00167 Weld County Public Works has received a request to extend the use of a temporary access point that is due to be removed by the end of construction season 2017. Access W-44 was to be closed after the construction of Access W-45 (CR 40) is constructed. This was included within the approved Improvements Agreement for USR-1704 for Heartland Biogas dated August 19. 2015, see attached. There have been numerous access permits for the Heartland parcel; AP11- 000482, AP13-00111, AP15-00030, and AP16-00167 all are attached to this document. The CR 49 Corridor is currently under construction. CR 49 is classified on the Weld County Functional Classification Map as an arterial roadway. In the area of Access W-44 the traffic count was 5293 vpd with 36% truck traffic. The denial for the extension of the use of the temporary access request is due the following: 1. The access would be an additional access. Once the CR 49 Corridor project is completed this would be an additional access to the Heartland parcel. 2. The closure of Access W-44 was identified in the CR 49 Access Control Plan. The Access Map, Access Inventory, and Access pictures for this area are attached to this document. 3. The latest Access Permit AP16-00167 for the Heartland parcel identified the closure of the access point. 4. If the existing access were to remain it would not meet the spacing criteria. It would be less than 660 feet from an access on the east side of CR 49. 5. There is not adequate sight distance based upon the posted speed limit on CR 49. This can be seen in the Access Pictures from the CR 49 Access Control Plan. Please see the attached application materials and letter from the applicant. The Weld County Code language is listed below: Sec. 12-5-30. Regulation of access onto County roadways. A. Access to a Single Parcel. Each parcel shall be allowed one access point for safe ingress and egress, which may be an existing or new shared access. Each parcel shall be limited to this single access. except as modified by the Board of County Commissioners; as a result of zoning requirements: consideration in land use applications; safety considerations; subdivision regulations; or the inability to meet minimum requirements as outlined in the Weld County Engineering and Construction Criteria document shown in Appendix 12-A. F. Additional Access, If a new access is requested to a legal parcel where an existing access already exists, the additional access shall not be approved unless the denial of the new access creates undue hardship on the property owner, as determined by the Department of Public Works. Whenever multiple accesses to a single legal parcel exist, and additional accesses are requested, one (1) or more existing accesses must be removed. minimizing new accesses and utilizing existing accesses. Appendix 12-A. 12A.3 Access Control Plan. Weld County recognizes that property owners have a right of reasonable access to the County road system. However, within an environment where population growth will increase traffic volumes and operational pressure on the general transportation system, be it rural or urban, access control is crucial to protect the public health, safety, and welfare. Chapter 12 Article 5 or the Weld County Code contains the Road Access policy Access control is 0:\Access Handouts & Letters\Access Permit Denial Heartland 031617.docx 2017-0851 &GOO7Li PLDo1a used to maintain smooth traffic flow, to provide road right-of-way drainage, and to protect the functional level of the County roads while meeting state, regional, local, and private transportation needs and interests. Access spacing criteria for local roads, collector roads, and arterial roads are shown in Table 12A-2. Table 12A-2 Minimum Access Spacing Criteria (feet) Access Element Arterial Collector Local Distance between intersections Signalized Unsignalized 2,640 1,320 N/A 1,320 N/A 330 Distance between accesses and intersections 660 660 330 Distance between access points 660 330 150 Distance between access points in subdivisions 660 330 75 Appendix 12-A. 12A. 5.2 Stopping Sight Distance. The minimum stopping sight distance is the distance required by the driver of a vehicle traveling at the design speed to bring the vehicle to a stop after an object on the road becomes visible. Stopping sight distance is the sum of the braking distance and the brake reaction time (the interval between the instant that the driver recognizes the existence of an object on the roadway and the instant the driver applies the brakes). The braking distance is related to the initial speed and the coefficient of friction between the tires and the roadway. The wet condition governs the stopping distances for purposes of design. Table 12A-5 provides the required minimum stopping sight distances on straight roadways with grades of less than 3%. In no case shall the stopping sight distance be less than as specified in Table 12A-5. For grades in excess of 3%, refer to Table 12A-6. For stopping sight distance calculations, the height of the object is considered to be 6 inches above the road surface. Chapter 4 of the Weld County Engineering and Construction Criteria provides additional information concerning roadway design and stopping sight distance. Table 12A-5 Stopping Sight Distances Stopping Sight Distances Design Speed MPH) Brake Reaction Distance (ft)1 Braking Distance on Level (ft) Stopping Sight Distance Calculated ;ft) Design (ft; 25 91.9 60.0 151.9 155 30 110.3 86.4 196.7 200 40 147.0 153.6 300.6 305 50 183.8 240.0 423.8 425 60 220.5 345.5 566.0 570 70 257.3 470.3 727.6 730 1. Brake reaction distance predicted on a time of 2.5 seconds; deceleration rate of 11.2 feet/second used to determine calculated sight distance. 0:\Access Handouts & Letters\Access Permit Denial Heartland 031617.docx Aerial of Project Area: O:\Access Handouts & Letters\Access Permit Denial Heartland 031617.docx WELD COUNTY ROAD 49 ACCESS CONTROL PLA County Road 44 to County Road 40 Private or Other Road Property Lines Agriculture Access Access with Safety Concern County Roads Land Locked Property Residential Access To Be Closed Mixed Use Access Future Access and Gas / Commercial Access f ti L 0Z/£ L/Z V X I a N 0 C Q) > C N en a) o U Q CL a rn Ix 0 ADDITIONAL INFORMATION Due to close proximity to US 34. may need to reduce full movement Same property owner - Power Pole IASC - Shared Access Utility Pole Safety Concern oa N • t. c a) to CC May not be able to consolidate due to three different ditch owners May not be able to consolidate due to three different ditch owners Access forms a loop. same property owner, share access ASC - Shared Access ASC - Relocate access to old CR 54 ASC - Relocate access to old CR 54 - n U Land locked parcel Appear to use W-12 for Field Access also Same property owner Same property owner ASC - Relocate access to CR 52 (BR49/52A) Reconstruct with road widening Relocate access to CR 52 Relocate access to CR 52 8 c cz �_ 5 L 0) cn 0 Q ASC - Relocate access to CR 50 Reconstruct with road widening ASC - Consolidate loop access w/redevelopment tea) Er U �0 o28 a) -0o) N m a) co c 0 ' UrnNU < 8 c cu -t-n- 5 L O) co v U C i -C 0 Q I M CO r N N Appears to be parallel future road along CR 49 to CR 48 -- M v N Nonexclusive shared (22578) I Big Foot — to 0 ASC - Shared Access ASC - Slight SD 21737 & 21735 II two accesses side by side one gated (feedlot) Reconstruct with road widening Consolidate loop into a shared access — c o U o U c.) Q ASC - Consolidate loop access w/redevelopment I — cV 0 ASC - Close one To be closed in accordance with USR and relocated to CR 40 Nonexclusive across from CR 40 o N U) a) co a) v ti m -0 a) 0 Gated - restricted access Reconstruct with road widening Relocate access to CR 38 II Close one - close to access W-49/50 II Close one - close to access W-47/48 — I WCR 36 I INo accesses between CR 36 and CR 34.5 on the west side I RECOMMENDED IMPROVEMENTS Movement Conversion Access Consolidation and Access Elimination Access Consolidation Access Consolidation Access Consolidation Access Consolidation Access Consolidation Access Relocation Access Relocation Access Consolidation Access Consolidation Access Consolidation Access Relocation 7 0 S Access Consolidation Access Consolidation 5 0 2 Access Relocation 7 0 S Access Consolidation Access Elimination Access Consolidation/Relocation Access Consolidation '-' 0 S Access Elimination Access Elimination Access Consolidation Access Elimination II Access Relocation Y 0 I .-+ 0 ± Access Relocation Access Elimination (Access Elimination ACCESS WITH SAFETY CONCERN Close proximity to accesses W-2 &3 Oil & Gas loop access Continuous long access Close proximity to access W-6 Close proximity to access W-5 Close proximity to access W-8 Close proximity to access W-7 Close proximity to railroad Close proximity to railroad Close proximity to access VV -14 Close proximity to access W-13 Sight Distance Sight Distance Multiple accesses on one parcel Multiple accesses on one parcel Sight Distance (Close proximity to CR 50 Sight Distance Sight Distance Close proximity to W-26 [Close proximity to W-25 & W-27 Close proximity to W-26 Oil & Gas loop access Sight Distance Close proximity to adjacent access Sight Distance Close proximity to each other Close proximity to each other Close proximity to each other Close proximity to each other [To be closed Sight Distance WCR 38 Sight Distance Close proximity to CR 38 Close proximity to each other Close proximity to each other a Q. Q LAND USE SERVED L.L Oil & Gas Loop & Ag (Field) Residential & Ag (Field) Field Field/Ditch ]Residential & Field LL gal Ditch Future Access 'Field Access U) 0 O Residential & Field (Agriculture (Field) & O&G o WCR 52 Residential & Field Agriculture (Field) & O&G W 0 O U) 0 O Oil & Gas U 0 0 WCR50 [ Residential Loop I Residential Driveway Residential Driveway Residential Driveway Future Access Residential Driveway Id -a) a' Residential & Field Oil & Gas Loop Residential and Field Oil & Gas and Field WCR 44 Oil & Gas Loop & Ag (Field) Oil & Gas Loop & Ag (Field) Residential Driveway Loop y0il & Gas Loop U) O 0000 U) U CD U [ Oil &Gas Oil & Gas Oil & Gas Loop (Oil & Gas Loop U) 0 01 U w O a) ACCESS TYPE Agriculture Mixed Use Mixed Use Agriculture Agriculture Mixed Use Agriculture Agriculture Agriculture Future Access U c Q &I IA — O Mixed Use Mixed Use l Agriculture l Mixed Use Mixed Use Oil & Gas WN CO -_ Oil Oil & Gas [ Oil & Gas Residential Residential Residential Ed tn CC Future Access N .E./CO ) vW fn CC Residential Mixed Use v) 06 - O ` Mixed Use Mixed Use ` Mixed Use Mixed Use Residential J U)) CO a3 - 0 v COV - 0 Oil & Gas W-46 Oil & Gas VV -47 I Oil & Gas 0 CO °5 - 0 W CO - 0 Oil & Gas W-53 I Oil & Gas -Gil — a) I ACCESS # �- N M V to co f� co O O r ‘- Q > N § CO •- > V •- IX) ? CO > L L -M I CO •- O >� O N > W-21 & 22 v N °5 tn 7N > co >N > N >N > 00 >N 7 O >N > or >M > - >M > I W-32 & 33 V CO 3 LO CO IW-36 & 37 W-38 & 39 v �' v I W-42 & 43 ?V > V >� > O i LO co I W-51 & 52 Access Access W-42 & 43 ASC Oil & Gas (loop) Access W-44 Oil & Gas Access W-45 Oil & Gas (Across from CR 40) WCR 40 Intersection Access W-46 Oil & Gas (Gated) Access W-47 Oil & Gas (Gated) North Bound NO WEST BOUND ACCESS South Bound NO WEST BOUND ACCESS 10 WELD COUNTY ACCESS PERMIT Weld County Public Works Dept. 1111 H Street P.O. Box 758 Greeley. CO 80632 Phone: (970) 304-6496 After Hours: (970) 356-4000 Emergency Services: (970) 304-6500 x 2700 Inspection: (970) 304-6480 Permit Number: AP11-00482 Issuance of this permit binds applicant and its contractors to all requirements. provisions, and ordinances of Weld County. Colorado. Project Name: Shelton Tower Applicant Information: Name: Company Phone: Email Carrie Eggleston Petroleum Development Corp 303-860-5800 Location: Access is on WCR: Nearest Intersection WCR: Distance From Intersection Number of Existing Accesses: 40 40 2000 1 Planning Process: Other ZPTT11-0002 Road Surface Type & Construction Information: Road Surface: Gravel Culvert Size & Type: Start Date: Finish Date: 05/03/2012 Materials to Construct Access: Required Attached Documents Submitted: Traffic Control Plan. & WCR: 47 Certificate of Insurance: Expiration date. 05/03/2012 Property Owner Information: Name: - Company: Shelton Land & Cattle Ltd Phone. 970-381-2479 Email: Proposed Use: Temporary: Single Residential: Industrial: Small Commercial: Oil & Gas: Large Commercial: Subdivision: Field (Agricultural Only)/Exempt: Access Pictures: A copy of this permit must be on site at all times during construction hours Daily work hours are Monday through Friday DAYLIGHT to'% HOUR BEFORE DARK (applies to weekends if approved) Approved MUTCD traffic control/warning devices are required before work begins and must remain until completion of work Special Requirements or Comments WCR 49 is an arterial roadway with a setback of 90 feet from the centerline of the road. Please use the existing access point. Approved by Janet Carter.. Weld County Public Works Date: 12/9/2011 Print Date -Time 12/9/2011 10:03: 56AM Report ID: PW00008v002 Page 1 of 1 WELD COUNTY ACCESS PERMIT Weld County Public Works Dept. 1111 H Street P.O. Box 758 Greeley, CO 80632 Phone: (970) 304-6496 After Hours: (970) 356-4000 Emergency Services: (970) 304-6500 x 2700 Inspection: (970) 304-6480 Permit Number: AP13-00111 Issuance of this permit binds applicant and its contractors to all requirements. provisions, and ordinances of Weld County, Colorado. Project Name: Applicant Information: Name: Company Phone: Email: Tim Naylor AGPROfessionals LLC 970-535-9318 tnaylor@agpros.com Location: Access is on WCR: Nearest Intersection WCR: Distance From Intersection: Number of Existing Accesses: Planning Process: USR 49 40 920 2 Road Surface Type & Construction Information: Road Surface: Asphalt Culvert Size & Type: Start Date: 05/01/2013 Finish Date: 04/01/2014 Materials to Construct Access: gravel/asphalt & WCR: 49 Required Attached Documents Submitted: Traffic Control Plan: Certificate of Insurance. Expiration date: 10/03/2013 Property Owner Information: Name. Company: Phone: Email: Proposed Use: Temporary: Single Residential: Industrial: Small Commercial: Oil & Gas: Large Commercial: E Subdivision: Field (Agricultural Only)/Exempt: Access Pictures: Yes A copy of this permit must be on site at all times during construction hours Daily work hours are Monday through Friday DAYLIGHT to % HOUR BEFORE DARK (applies to weekends if approved) Approved MUTCD traffic control/warning devices are required before work begins and must remain until completion of work Special Requirements or Comments Please utilize the existng access point or close the existing access point for a new access point location. Approved by P(atA Janet Carter Weld County Public Works Date: 5/6/2013 Print Date -Time: 5/6/2013 4.42:20PM Report ID: PW00008v002 Page 1 of 1 WELD COUNTY ACCESS PERMIT Weld County Public Works Dept. 1111 H Street P.O. Box 758 Greeley, CO 80632 Phone: (970) 304-6496 After Hours: (970) 356-4000 Emergency Services: (970) 304-6500 x 2700 Inspection: (970) 304-6480 Permit Number: AP15-00030 Issuance of this permit binds applicant and its contractors to all requirements, provisions, and ordinances of Weld County, Colorado. Project Name: MUSR14-0030,SUBX14-0023,: Applicant Information: Name: Tim Naylor Company: AgProfessionals Phone: 970-535-9318 Email: tnaylor@agpros.com Location: Access is on WCR: 49 Nearest Intersection WCR: 49 & WCR: 40 Distance From Intersection: 0 Number of Existing Accesses: 2 Planning Process: Other ZPMH15-0016/00 Road Surface Type & Construction Information: Road Surface: Asphalt Culvert Size & Type: 18" CMP/RCP min. Start Date: Finish Date: Materials to Construct Access: class 6 road base Required Attached Documents Submitted: Traffic Control Plan: No Certificate of Insurance: Expiration date: 01/30/2016 Property Owner Information: Name: Company: Phone: Email: Ralph Daley Heartland Biogas, LLC 703-905-8110 ralph.daley@edf-re.com Proposed Use: Temporary: Single Residential: Industrial: Small Commercial: Oil & Gas: Large Commercial: Subdivision: Field (Agricultural Only)/Exempt: E E No Access Pictures: Yes A copy of this permit must be on site at all times during construction hours Daily work hours are Monday through Friday DAYLIGHT to 1/2 HOUR BEFORE DARK (applies to weekends if approved) Approved MUTCD traffic control/warning devices are required before work begins and must remain until completion of work Special Requirements or Comments Parcel 105525400011. Utilize existing upgraded access point on CR 49 (1 -Industrial) located approx. 0 ft. North of CR 40. Utilize existing access point on CR 49 (1 -Temporary) located approx. 1375 ft. North of CR 40. Temporary access point SHALL be closed and reclaimed prior to 01/30/16. Approved by: Weld County Public Works Date: 7/16/2015 Print Date -Time: 7/16/2015 7:59:48AM Access Permit PW008 Page 1 of 1 WELD COUNTY ACCESS PERMIT Weld County Public Works Dept. 1111 H Street P.O. Box 758 Greeley, CO 80632 Phone: (970) 304-6496 After Hours: (970) 356-4000 Emergency Services: (970) 3O4-65OO x 2700 Inspection: (970) 3O4 -648O Permit Number: AP16-00167 Issuance of this permit binds applicant and its contractors to all requirements, provisions, and ordinances of Weld County, Colorado. Project Name: Heartland 49 & 40 temp. Applicant Information: Name: Jeff Annable c/o Petroleum Field Services Company: Saddlehorn Pipeline Company, LLC Phone: 303-928-7128 Email: regulatory@petro-fs.com Location: Access is on WCR: Nearest Intersection WCR: Distance From Intersection: Number of Existing Accesses: Planning Process: 49 49 1365 2 Road Surface Type & Construction Information: Road Surface: Asphalt Culvert Size & Type: Start Date: Finish Date: Materials to Construct Access: Required Attached Documents Submitted: Traffic Control Plan: No & WCR: 40 Certificate of Insurance: Expiration date: 11/01/2016 Property Owner Information: Name: Company: Phone: Email: Heartland Biogas LLC Proposed Use: Temporary: Single Residential: Industrial: Small Commercial: Oil & Gas: Large Commercial: Subdivision: Field (Agricultural Only)/Exempt: No Access Pictures: Yes A copy of this permit must be on site at all times during construction hours Daily work hours are Monday through Friday DAYLIGHT to % HOUR BEFORE DARK (applies to weekends if approved) Approved MUTCD traffic control/warning devices are required before work begins and must remain until completion of work Special Requirements or Comments Parcel 105525400014. Utilize existing access point on CR 49 (1 -Temporary) located approx. 1365 ft. North of CR 40. Relocation of access point off of CR 40 possible due to CR 49 expansion project. Temporary access point SHALL be Reclaimed prior to 11/01/16. Approved by: Weld County Public Works Date: 4/26/2016 Print Date -Time: 4/26/2016 8:33:45AM Access Permit PW008 Page 1 of 1 CORN, PAYTON PAYNE March 16, 2017 Bruce Barker, Esq. Weld County Attorney's Office 1150O St. Greeley, CO 80631 **delivered via email only to bbarker@co.wcld.co.us Janet Lundquist Weld County Department of Public Works .1111 H. St. Greeley, CO 80631 **delivered via email only to Lundquist@co.weld.co.us Re: Appeal of administrative decision William F. Garcia, Esq. 5586 W. 19th Street, Suite 2000 Greeley, CO 80634 970-339-3500 wgarcia@cp2law.cotn www.cp2law.corn Please accept this letter as a request to appeal the administrative decision by Janet Lundquist of the Weld County Department of Public Works issued on Wednesday, March 8, 2017. In particular, the decision is to close the existing access (W-44) off CR 49 this summer once the intersection of CR 40 (W-45) is completed. Please see the attached email from Janet Lundquist. The result of this decision would be to require Heartland Biogas LLC to construct a new road to access the facility despite the fact that the facility's Use by Special Review (USR) has been suspended and operation of the facility is ending in accordance with the Suspension. The decision further results in additional expense to Heartland Biogas, LLC for the construction of the new road as well as the potential for delay in removing product from the facility in furtherance of the suspension due to the construction of a new road. As the facility is no longer in active operation taking feedstocks for the biodigesters, the truck traffic into the facility has dramatically decreased. Please note that Heartland Biogas, LLC has already provided the funding amount of approximately $735,000 for the CR49/CR improvements which will be completed this summer. Heartland Biogas, LLC respectfully requests the Board of County Commissioners' consideration in reviewing the aforementioned decision and determining that the use of the present access may continue while the USR is under suspension. Thank you for your prompt attention to this matter. DENVER FORT -COLLINS GREELEY Page 2 Sincerely, Coan, Payton & Payne, LLC William F. Garcia -Original Message — From: Janet Lundquist Sent: Wednesday, March 08, 2017 4:21 PM To: Tim Naylor <tnaylor@agpros.com> Cc: ralph.daley@edf-re.com; Jason Thomas <Jason.Thomas@edf-re.com>; AI.kurzenhauser@edf- re.com; Frank Haug <fhaug(aco.weld.co.us>; Michelle Martin <mmartin@co.weld.co.us>; Tom Parko Jr. <tparko@co.weld.co.us>; Jay McDonald <jmcdonald@co.weld.co.us> Subject: RE: HBG Hi Tim, The closure of the existing access(W-44) off of CR 49 will be closed this summer once the intersection of CR 40 (W-45) is completed. This is in accordance with the approved Improvements Agreement and your approved access permits. Staff cannot approve the use of the temporary existing access beyond the closure that will occur this summer. If you would like to appeal this decision to the BOCC please submit a letter of explaining the hardship of this denial and I will get it schedule for a 9 am hearing. If you have any questions please let me know. Thanks, Janet Lundquist Support Services Manager Weld County Public Works Dept. P.O. Box 758, Greeley, CO 80632 Tele-970.356.4000 ext 3726 Fax- 970.304.6497 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. RESOLUTION RE: APPROVE AMENDED AND RESTATED IMPROVEMENTS AND ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS, AUTHORIZE CHAIR TO SIGN, AND ACCEPT OFF -SITE COLLATERAL FOR USE BY SPECIAL REVIEW PERMIT, USR-1704, HEARTLAND BIOGAS, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter. is vested with the authority of administering the affairs of Weld County. Colorado, and WHEREAS, on July 21, 2010, the Weld County Board of Commissioners approved Use by Special Review Permit. USR-1704, for Shelton Land and Cattle, Ltd , 23043 County Road 42. LaSalle, Colorado 80645, and Heartland Renewable Energy. LLC, 2400 Trade Center Avenue, Suite 201. Longmont. Colorado 80503. for a Solid Waste Disposal Site and Facility (including Class I composting, an animal waste recycling or processing facility [an anaerobic digester -based renewable energy plant - gas]), along with a Concrete Batch Plant to be used for construction of the facility in the A (Agricultural) Zone District, on the following described real estate. to -wit. Part of the SE1/4 of Section 25. Township 4 North, Range 65 West of the 6th P. M. , Weld County. Colorado WHEREAS, on December 9, 2013, the Board was presented with and approved an Improvements Agreement According to Policy Regarding Collateral for Improvements between the County of Weld. State of Colorado, by and through the Board of County Commissioners of Weld County, and Heartland Biogas. LLC (successor to Heartland Renewable Energy, LLC), 15445 Innovation Drive. San Diego, California 92128. with terms and conditions being as stated in said agreement, and acceptance of Collateral in the form of a Corporate Guaranty by EDF Renewable Energy, Inc., 15445 Innovation Drive. San Diego, California, 92128-3432, in the amount of $240,425.00, and WHEREAS, pursuant to certain Conditions of Approval. the Board has been presented with an Amended and Restated Improvements and Road Maintenance Agreement According to Policy Regarding Collateral for Improvements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Heartland Biogas, LLC (successor to Heartland Renewable Energy. LLC), 15445 Innovation Drive, San Diego, California 92128, with terms and conditions being as stated in said agreement, and WHEREAS, the Board has been presented with a First Amendment to Corporate Guaranty by EDF Renewable Energy, Inc , 15445 Innovation Drive. San Diego, California, 92128-3432, in the amount of $735,630 00, and WHEREAS, after review. the Board deems it advisable to approve said agreement and accept the form of said First Amendment to Corporate Guaranty as stated above, copies of which are attached hereto and incorporated herein by reference. 4141050 Pages: 1 of 31 09/10/2015 02:20 PM R Fee $0.00 Car y I;oPP;5 Cler I �n��Recorder Weld County CO ��,III1f�I��I1�I,l III 1III M� ll:I INu dit t4'g ee. Cflv:?uD•,?1, f i7 2015-2778 PL2072 IMPROVEMENTS AGREEMENT - HEARTLAND BIOGAS. LLC PAGE 2 NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County. Colorado. that the Amended and Restated Improvements and Road Maintenance Agreement According to Policy Regarding Collateral for Improvements between the County of Weld. State of Colorado. by and through the Board of County Commissioners of Weld County, and Heartland Biogas. LLC. be. and hereby is approved, conditional upon submittal of the original executed version of the collateral as described below BE IT FURTHER RESOLVED that First Amendment to Corporate Guaranty by EDF Renewable Energy. Inc . 15445 Innovation Drive San Diego California 92128-3432. in the amount of $735.630 00. be and hereby is. accepted BE IT FURTHER RESOLVED by the Board that the Chair be and hereby isauthorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded adopted by the following vote on the 19th day of August. A D 2013 BOARD OF COUNTY COMMISSIONERS WELD COUNTY. COLORADO ATTEST des)G .�C,Lfo Weld County Clerk to the Board BY: Dey Clerk to the APPROVED AS TO FORM "LIZ_ 4-t/Ciiiiikj,1/4_ arbara Kirkmeyer Chair yi\j41-2, Mike Freeman. Pro-Tem i r County Attorney EXCUSED can P Conway lie Cozad Date of signature 9/2. Steve Moreno 4141050 Pages: 2 of 31 09/10/2015 02 20 PM R Fee:$0 00 :a' y Koppes ,Jerk and Recorder Weld Count,. CO ■iii Eirap':w 2015-2778 PL2072 MEMORANDUM TO: Clerk to the Board DATE: 8/12/2015 FROM: Richard Hastings, Public Works Department SUBJECT: BOCC Agenda Item - Approve Improvements Agreement and Accept Collateral For: Heartland Biogas. LLC — USR-1704 Request for Approval of Improvements Agreement: The Department of Public Works received a request from the applicant's representative, Tim Naylor/AgPRO requesting that the Board of County Commissioners consider approving the Improvements Agreement for the Solid Waste Disposal Site and Facility, including Class I composting, an animal waste recycling or processing facility (an anaerobic digester -based renewable energy plant (gas), (USR-1704), located at CR's 40 & 49, east of the town of Gilcrest. 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 "Amended and Restated Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements", are found to be acceptable. The Agreement has been signed by Jay McDonald/Public Works Director. Revisions to Part 2 of the Agreement were made and approved by Bob Choate/Assistant County Attorney. Request for Acceptance of Collateral: The Department of Public Works received a request from the applicant's representative, Tim Naylor/AgPRO, requesting that the Board of County Commissioners consider accepting off -site collateral in the form of a First Amendment To Guaranty For Board of County Commissioner of Weld County. Colorado— EDF Renewable Energy, Inc., for the above -mentioned Improvements Agreement. Recommendation: !he Department's of Public Works, Planning Services and the County Attorney's Office are recommending approval of the Amended and Restated Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements and the acceptance of off -site collateral. for Heartland Biogas, LLC (USR-1704). pc: Elizabeth Relford, Public Works Tom Parko. Planning Services Bob Choate. Assistant County Attorney 2015-2778 I `Engineering l'I ANN IN( - t)E•VEI.OP\1I `I RI VII-W\-P:e-Accela Referrals (Old `umhenng► I tiR-I se hn Special Res ietis l SR -170-1 I ieartland Renewable Resources\lmprovemenr..\ reenwnt\Approve IA & ;\ccept Collateral i I 'SR -I 7041 Heartland - MI \N )(foes AMENDED AND RESTATED IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Heartland Biogas, LLC (successor to Heartland Renewable Energy) — USR-1704 Part 1: Site Specific Provisions THIS AMENDED D RESTA ED IMPROVEMENTS AGREEMENT (this "Agreement") is made this tay of , 2015, by and between Heartland Biogas, LLC, a Delaware limited liability comp y whose address is 15445 Innovation Drive, San Diego, CA 92128, hereinafter referred to as Property Owner," 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 Owner is the owner of, the following described property in the County of Weld, Colorado: Part of the SE4 of Section 25, T4N. R65W the 6th P.M., Weld County, Colorado and hereinafter referred to as "the Property," and WHEREAS, the Property Owner and the County entered into an Improvements Agreement According To Policy Regarding Collateral For Improvements dated December 9, 2013 (the "Prior Agreement") that was consistent with the approved Use by Special Review USR-1704. The County required a change to the facility access point as part of the County Road 49 project to access onto County Road 40, and the Property Owner and the County have determined to replace the Prior Agreement in its entirety with this Agreement; and WHEREAS, County has approved a land use permit (USR-1704), for a solid waste disposal site and facility (including Class I composting), an animal waste recycling or processing facility (an anaerobic digester -based renewable energy plant (gas) along with a concrete batch plant to be used for construction of the facility on approximately 80 acres on the above described real property, and WHEREAS, the Property Owner acknowledges that the issuance of USR-1704 is conditional upon Property Owner's performance of the on -site and off -site improvements which are described in this Agreement and depicted in the Plat Map and the set of accepted Construction Plans provided by Property Owner, copies of which shall be attached to this Agreement as they become available and made a part hereof, as Exhibits C (the "Plat Map") and D (the "Construction Plans" or the "Plans"), respectively, and WHEREAS, County acknowledges that Property Owner may engage in activity, as determined acceptable by County, and described in USR-1704 and/or activity related to the businesses described above while said improvements are being completed, and WHEREAS, the Property Owner agrees that pursuant to the provisions of Weld County Code Sec. 23-2-290, the failure to commence construction of the improvements outlined herein 4141050 Pages: 3 of 31 09/10/2015 02:20 PM R Fee $0 00 Car y Koppes Clerk and Recorder Weld County CO iii W)'1P'�IZ'I�t*i r!'�'w:'J14 PE11'�pf �I Ila 'tE?? �i ni •elo122 0Zo/S- 027 72 4141050 09/10/2015 02 Carl, K^nc-es or to commence the use of the Property as approved in USR-1704 within three (3) years of the approval of the permit issued under USR-1704, may result in the revocation of USR-1704, upon consideration and order of the Board of County Commissioners, and WHEREAS, the Property Owner agrees that the failure to record the plat within the time limits imposed by the Weld County Board of County Commissioners, may result in the revocation of USR-1704, upon consideration and order of the Board of County Commissioners, and WHEREAS, the parties agreed that the Property Owner could provide collateral, in the form of a Corporate Guaranty by EDF Renewable Energy, Inc., for all off -site improvements required by this Agreement, upon execution of this Agreement, or at a time determined acceptable by the Board of County Commissioners. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: This Agreement amends and restated the Prior Agreement in its entirety. A. Required Off -Site Improvements 1.0 Weld County Roads 40 & 49: The Property Owner shall be financially responsible for the obligation as described in Section 8.0 for the construction of certain on -site and off -site safety improvements as part of the CR 49 project at the intersection of CR 49 and CR 40 as indicated on the Construction Plans prepared by Weld County Public Works. The Property Owner's financial obligation is based on the USR-1704 requirements to construct a left deceleration lane and the left acceleration lane from the approved access on to CR 49. The County agrees to accept a cash -in -lieu amount of $735,630.00 for construction of the above stated road improvements. The Property Owner agrees to construct a new facility access and construct road improvements to the CR 40 roadway from the facility entrance east to the intersection of CR 49. The property owner agrees to asphalt paving on the CR 40 roadway from the CR 49 right-of- way no more than 300 feet west to act as a tracking pad prior to entering CR 49. Prior to completion of the above -mentioned left turn lanes, the property owner agrees to require USR-1704 traffic adhere to a "Right In & Right Out" Traffic Pattern in order to maintain safe driving conditions for Weld County citizens on CR 49. The "Right In & Right Out" Traffic Pattern has generated a Detour Haul Route during the initial construction phase which required the Property Owner to post MUTCD approved signage along the approved Detour Haul Route. The Detour Haul Route shall be attached to this Agreement and part hereof, as Exhibit E (the "Detour Haul Route Map"). Granting of any new point of access may generate additional obligations with County for Off -Site Improvements and the need to post additional "Road Maintenance Collateral". A County access permit is needed for every access to a County road. 2.0 Road Improvements Responsibilities: Property Owner is financially responsible for all designated improvements, as specified above in Section A.1.0, on CR's 40 & 49, and for any construction improvements mandated by the Colorado Department of Transportation (hereinafter "CDOT") and/or the County, and for all expenses associated therewith not to exceed $735,630.00 as described in Section A.1.0 and Section A.8.0. These responsibilities include, but ge2of22 Pages: 4 of 31 20 P(1 R Fee:$0.00 $0.00 .e -k and Recorder Weld County CO ■iii M!�� tiw ViPC t��F�� rF�; �F�wR,��F� ��, II III are not limited to the following: design, surveys, utility locates, present and future right-of-way clearances and permits; coordination with oil and gas operators and facilities, affected railroad facilities and affected irrigation facilities; traffic control; and project safety during construction. Any other future USR or amended existing USR that utilizes the designated improvements above may be required to pay a proportionate share of the improvements. Such a payment would result in a reimbursement of some of the cost to the Property Owner. Property Owner shall obey all applicable regulations issued by the Occupational Safety and Health Administration, (hereinafter "OSHA"), CDOT, Colorado Department of Public Health and Environment, (hereinafter "CDPHE") and other Federal, State or County regulatory agencies. 3.0 Engineering Design and Construction Plans: All engineering designs and construction plans provided by Weld County shall include, at a minimum, ingress/egress entrance intersection layouts, existing and proposed grading, drainage designs, storm drainage pipe sizings and inverts, a cross section of the base/asphalt, approach roads, and adequate turning radii, and pavement markings. 4.0 Construction Standards: All construction and materials controls for a project and any designated improvements shall conform to the requirements in effect as the time of the completion of the improvements set forth in the "Standard Specifications for Road and Bridge Construction" provided by CDOT. 5.0 Traffic Control: During construction, signage shall be posted in accordance with the then current version of the Manual of Uniform Traffic Control Devices (hereinafter "MUTCD"). 6.0 Off -Site Dust Control/Abatement and/or Paving (If Applicable): The Property Owner is required to provide dust abatement along affected Haul Route Roads approximately two to five times per year, as determined by the County. County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner based upon then current Truck Trip ESAL Counts that identify traffic loading due to Property Owner - sourced traffic. The amount and extent of dust control and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. In order to accurately determine percentage of Property Owner haul truck traffic, the County reserves the right to install traffic counters on the driveway(s) of their facility. The percentage of haul truck traffic utilizing County roads in the vicinity of the site attributable to Property Owner (or their contractors, clients, tenants, or customers) activities will be determined by traffic counts conducted by the County on the primary and requested alternate or revised haul routes. The County will have sole responsibility for determination of the percentage of truck traffic on all affected roads. 7.0 Future Improvements: Future improvements to the haul route(s) may be required by County. Property Owner shall address all County access issues associated with afore- mentioned haul route. Future County mandated measures may include improvements to any haul route intersection or roadways then utilized by Property Owner. Property Owner shall pay a proportionate share of the cost of the entire project including engineering designs and construction plans based on the Property Owner's share of ESAL Counts using then current data on the haul route in the implementation of the above -mentioned improvements. County personnel alone shall make all determinations regarding the gathering of and use of traffic data when making decisions regarding cost sharing. In order to accurately determine percentage of Prnnerty Owner haul traffic, the County reserves the right to install traffic counters on the 4141050 Pages: 5 of 31 09/10/2015 02:20 PM R Fee:$0.00 Carly Koppel Clerk and Recorder Weld County CO ON *PRY: VII of 22 driveway(s) of their facility. Future improvements will be subject to any Federal, State or County regulations in place at the time the improvement project is initiated. 8.0 Timing of Improvements: Subject to the provisions ofWeld County Code Sec. 23-2-290 and any conditions or considerations granted by the Board of County Commissioners, Property Owner shall be required to complete the aforementioned financial obligations for $735,630.00 for the offsite improvements as described in Sections A.1.0-2.0. Property Owner agrees that the required off -site financial obligation will be posted and all on -site and offsite improvements shall be completed by Weld County within the parameters established in Sections A.1.0, A.3.0 and E.7.2, and Exhibit B, herein. 9.0 Acceptance of Off -Site Improvements (If Applicable): Upon completion of the off -site improvements, Property Owner shall contact a representative of the Weld County Department of Public Works and request an inspection of the off -site improvements described in Sections A.1.0-2.0 above. The County's representatives may then initiate the acceptance process set forth in Sections E.6.1-6.3. 9.1 All references in this Agreement to "Acceptance of Improvements" shall refer to the County confirming completion of said improvement(s) according to the accepted Construction Plans. By accepting any improvement, the County does not thereby accept said improvement for purposes of future maintenance, nor does the County accept any present or future responsibilities or obligations relative to these improvements. B. Haul Routes: 1.0 Established Haul Routes from the facility access point, following completion of turn lane improvements as described in Section A.1.0 of this Agreement: 1.1 Exiting or entering the site: Haul trucks shall enter or exit the site via the proposed access, on CR 40 then east to County Road 49 to disperse north or south. Until CR49 and CR 40 intersection can be constructed, as described in Section A.1.0, the construction traffic shall enter and exit the site in a right-in/right out movement to ensure the safety of trucks accessing County Road 49 in a safe manner. Any County roads routinely utilized by USR-1704 haul traffic may become part of the established haul routes. 1.2 No haul truck may exceed CDOT required specifications for pounds per axle. In unusual or rare occasions, if particular projects mandate deviation from the above -mentioned haul route for a limited period of time (which is defined in this Agreement as a period of not more than thirty days), which shall be established by County at the time that the deviation is allowed. If County approves such deviation, trucks will utilize paved county roads whenever possible. A deviation from the established Haul route lasting more than thirty (30) days or requests for two or more deviations within a twelve month period shall be subject to the terms of Section 4.0 of this Section B. In the event that haul truck traffic, in excess of 15% of the daily 4141050 Pages: 6 of 31 09/10/2015 02 20 PM R Fee:$0.00 , Kocpes Cle-K and Recorder Weld Court. 70 22 1111 fctil'i?lliwS,441I1.1141;1U4iP1it'F.11:a'lf 4Ili Ill III facility truck trips, utilizes alternate haul routes, the provisions of Section 4.0 of this Section B shall be triggered. 2.0 Haul Route Signage: Property Owner shall install haul route signs, as per MUTCD standards, at all exit points of the Property and along the Detour Haul Route which can be clearly seen by drivers leaving the facility and which clearly depict County approved haul routes. 3.0 No Deviation from Permitted Haul Routes: Except under the provisions provided in Section B.1.3, no deviation in the use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. 4.0 Effect of Future Changes to Haul Routes: In the event that County is requested by Property Owner or site operator to approve the use of an additional access, new haul route, or an alternative haul route as a result of a change in Property Owner's site activities and/or truck circulation patterns, and if the alternative or additional access or haul route utilizes any unpaved portion of County roads, and if County determines that dust control or paving is required on the unpaved portion of said haul route roads, Property Owner agrees that dust control or paving measures to protect the public health, safety, and welfare shall be instituted. County will determine the proportionate share of dust control and/or paving costs to be paid by Property Owner based upon then current truck trip counts that identify traffic loading due to Property Owner -sourced traffic. The amount and extent of dust control and paving measures will be determined by site -specific conditions at the time, as determined exclusively by County personnel. C. Road Maintenance Requirements: 1.0 Obligation to Maintain Current and Future Haul Routes: Property Owner will be financially responsible for the excavation, repair, and patching of any damage on current or future haul route roads, which in the opinion of County has been created by hauling to and from the Property. Should Property Owner's site activities and/or should Property Owner's truck circulation patterns change in the future so that County approves an alternate haul route, and all or a significant portion of Property Owner's sourced traffic no longer utilizes the above - described haul route and instead utilizes other portions of County roads, Property Owner 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, caused by Property Owner (or its contractors, clients, tenants or customers) 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 Owner of such Significant Damage. Property Owner 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 such repair is not commenced within 4141050 Pages: 7 of 31 09/10/2015 02:20 PM R Fee:$0.00 Carly Koppes Clerk and Recorder Weld County CO VIII PrO2III,WtWrilOWIT IIK lineFrh` Itile,11 III 2 such forty-eight (48) hour period, County shall have the right to draw on the Road Maintenance Collateral and use such funds to perform such repair. If Property Owner identifies Significant Damage prior to receiving notice thereof from County, Property Owner 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 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 route road portion will require paving measures in order to protect the public health, safety, and welfare, and has budgeted sufficient funds for the following calendar year to pay its share of the Off - Site Improvement/Repair Costs, County shall notify Property Owner in writing that the Off -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 Owner shall submit Off -Site Construction Plans and Cost Estimates to County for review. Property Owner shall have 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. 1.3 In County's discretion. County may undertake the repairs and/or improvements. Property Owner's payment for its Proportionate Share of the road repairs/improvements will be calculated as determined in Sections A.6.0 or A.7.0 of this Agreement, and in a manner consistent with Section C.3.0 of this Agreement. 1.4 The County shall notify Property Owner of County's preliminary determination and assessment of Property Owner's proportionate share of costs of dust control, paving, repairs and maintenance on any particular Haul Route Road. Prior to County's final determination and assessment, County shall provide Property Owner with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Property Owner's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of Property Owner's proportionate share of costs. 2.0 Annual Road Inspection: County will conduct a road inspection annually with the cooperation of Property Owner and all other Property Owner and/or Lessees who are required by County to participate in road improvement/maintenance agreements. As a result of the annual inspection, County, in its 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 Owner of the required roadway repairs will be given as soon as the data becomes available. 3.0 Future Road Replacement: At any time in the future, if, in the opinion of County, road damage increases beyond the point that repair of damage cannot maintain the road in a safe 4141050 Pages: 8 of 31 09/10/2015 02:20 PM R Fee:$0.00 Carly Koppes Clerk and Recorder. Weld Count, CO ■III+!.rlL"��i�lrti��(��l'N'rL��F��,�Ift��IL�� '��4�i��r�� Bill and usable condition, Property Owner shall pay a proportionate cost of a complete restoration based on the number of Haul Trip ESAL Counts using then current data of haul trips entering or exiting Property Owner's site onto the haul route in the implementation of the above -mentioned improvements. Notification to the Property Owner of the required roadway replacements will be given as soon as the data becomes available and typically takes place before the end of the year prior to the start of the replacement project, as described in Section C.1.0 above. 4.0 Sharing of Road Maintenance Responsibilities with Other Property Owner and/or Lessees: It is anticipated that Property Owner and other Property Owner and/or Lessees subject to agreements similar to this Agreement will perform the required road maintenance work and will share in the equipment, labor, and materials required. Any such sharing arrangement between Property Owner and/or Lessee, and other Property Owner and/or Lessees shall be conducted pursuant to separate agreements between the Property Owner and other Property Owner and/or Lessees. County shall approve the Agreements only to determine whether the required improvements/maintenance projects have been adequately addressed. County alone shall determine the sufficiency of all road improvement/maintenance projects when completed. 5.0 Violation of Terms of Agreement: If Property Owner does not perform as outlined in this Agreement and Exhibits A and B, such non-performance will constitute a violation of Property Owner land use permits granted by County and the County will take whatever remedial measures it deems necessary against Property Owner. In addition to any other remedy available to the County in law or equity, a failure to comply with this Agreement shall be considered grounds for setting a probable cause hearing according to the procedures described in Section 2-4-40 of Weld County Code. Revocation of USR-1704 as it now exists or may, from time to time, be amended is a remedy which County may impose. D. On -Site Improvements: (No On -Site Collateral is required for USR-1704 but Property Owner shall complete all On -Site Improvements as shown on the accepted Construction Plans and Plat Map for USR-1704.) 1.0 Landscaping and Fencing Requirements: Property Owner shall landscape and/or maintain the landscaping and re -seeding of the property where applicable as shown on the accepted construction plans and USR-1704 plat map . Specifically, Property Owner shall at its own expense, plant, install and maintain all trees, grass and shrubs and other landscaping and re- seeding where applicable as shown on the accepted construction plans and USR-1704 plat map. Additionally, the Property Owner shall install and/or maintain fencing to screen the property where applicable as indicated on the accepted construction plans and USR-1704 plat map. In the event any of these improvements may include work extending into State or County Right -Of - Way, a Right -Of -Way or access permit is required. 2.0 On -Site Grading, Drainage Facilities and Paving: Property Owner shall, at its own expense, grade and/or pave, if applicable, specified roadways, accesses, easements and parking areas, and install accepted drainage and signage components, adjacent to or within the interior portion of the Property in accordance with the directives of the Weld County Department of Public Works and Department of Planning, as further described in the accepted Construction Plans and USR-1704 Plat Map. Any on -site improvements shall be completed as indicated on the accepted Construction Plans for this facility. Property Owner shall be responsible for all maintenance of the onsite improvements. Refer to Section A.1.0 of this agreement for specific paving requirements extending into the facility site from CR 49. Additional infrastructure improvements will be addressed at the time of application for any future amended USR. Some 4141050 Pages: 9 of 31 09/10/2015 02:20 PM R Fee:$0.00 Car r Kcppes Clerk and Recorder Weld Count; CC 1111 7 of 22 of these improvements may include work extending into State or County Right -Of -Way in which case a Right -Of -Way or access permit is required. 3.0 Timing of Improvements: Property Owner shall not be required to initiate the landscaping requirements until the occurrence of the triggering event for all improvements, namely the earlier of approval of the grading permit or an amendment to the existing USR. The approved Agreement Between Weld County. Colorado, and Heartland Biogas. LLC, for the Conditional Early Release of Grading Permit GRD13-00014, dated June 19, 2013 allows for the release of the grading permit prior to collateral being posted for the associated improvements. The Construction Plans have been submitted to and accepted by the Department of Public Works for the on -site grading as approved and permitted by Weld County Grading Permit # GRD 13- 00014 dated June 19, 2013. Access and/or Right -Of -Way permits might also be required prior to approval of the grading permit. Grading shall not commence until grading plans are accepted. Any alterations to the accepted Construction Plans must be pre -approved in writing by the County Planning and Public Works Departments. At that time, and unless otherwise amended, Property Owner agrees that all landscaping and other on -site improvements, as indicated in Section D. 2.0 above shall be completed within the parameters established in Section E. 7.2 and Exhibit B. The Property Owner's failure to complete the On -Site Improvements within the time period(s) established by Resolution approving MUSR14-0015, and/or set forth within the context of this Agreement may, at County's option, result in the revocation of said land use permit. 4.0 Acceptance of On -Site Improvements: Upon completion of the on -site improvements. Property Owner shall contact the Weld County Department of Planning Services and the Weld County Department of Public Works and request an inspection of the on -site improvements described in Section D.1.0 and D.2.0 above. The County's representatives may then initiate the acceptance process set forth in Section 8.6.0, sections 6.1-6.3. The BOCC does not represent or ensure the on -site improvements will be constructed and/or available for their intended use(s). The County does not and shall not assume liability for improvements designed and/or constructed by others. "End of Part 1" 4141050 Pages: 10 of 31 09/10/2015 02:20 PM R Fee:$0 00 Carly Koppes Clerk and Recorder Weld County CO ■III II 21111 'h/ .'I+iRPirG iia ills ' WileAti'iiiii,11111 Page 8 of 22 AMENDED AND RESTATED IMPROVEMENTS & ROAD MAINTENANCE AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS Heartland Biogas, LLC (successor to Heartland Renewable Energy) — USR-1704 Part 2: General Provisions E. General Requirements: 1.0 Engineering Services: Property Owner shall furnish, at its own expense, all engineering services in connection with the design and construction of the improvements identified on the accepted Construction Plans according to the construction schedule set forth in Exhibit "B," both of which are attached hereto and incorporated herein by reference. 4-11 t nita J ri mE miDe rlm3:� M rtrr aL =y o V� s LL Cr otal fr vatic m a.Ny- - Ntr,V N Ira 6-4 (En N o eiD .pmt_ mac_ "so 1.1 The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. 1.2 The required engineering services shall consist of; but not be limited to, surveys, designs, plans and profiles, estimates, construction supervision, and the submission of necessary documents to the County. 1.3 Property Owner shall furnish construction drawings for the road improvements on public rights -of -way or easements and all improvements interior on the Property for approval prior to the letting of any construction contract. 2.0 Rights -of -way and Easements: Before commencing the construction of any improvements herein agreed upon for public rights -of -way or easements, Property Owner shall acquire, at the sole expense of Property Owner, good and sufficient rights -of -way and easements on all lands and facilities traversed by the proposed improvements. All such rights -of -way and easements used for the construction of roads to be accepted by the County shall be conveyed to the County and the documents of conveyance shall be furnished to the County for recording. 3.0 Construction: Property Owner shall furnish and install, at its own expense, the improvements identified on the accepted Construction Plans and USR-1704 Plat Map, be solely responsible for the costs listed on Exhibit "A", and described in parts A and D of this agreement, which are attached hereto and/or incorporated herein by reference, with the improvements interior to the Property being completed by the dates set forth on Exhibit "B" (On -site), and improvements to public rights -of -way or easements being completed also in accordance with the schedule set forth in Exhibit "B" (Off -site). The Board of County Commissioners, at its option, may grant an extension of the time of completion set forth in Exhibit B stated herein upon application by the Property Owner. 9 of 22 i' Engineering PLANNING - DEVELOPMI N"1 REVIEW Pre-Accela Referrals (Old Numbering)1USR-Use by Special Review\USR-1704 Heartland Renewable Resourccs'dmprovcments Agreement\Heanland Renewable Energy (t.1SR-1704) Pan 2 -General Provisions -FR (7-14-15).doex 3.1 Said construction shall be in strict contbrmance to the plans and drawings accepted by the County and the specifications adopted by the County. Property Owner shall employ, at its own expense, a qualified testing company previously approved by the County to perform all testing of materials or construction; and shall furnish copies of test results to the County. If County discovers inconsistencies in the testing results, Property Owner shall employ at its expense a third party qualified testing company approved by County. Such third party shall furnish the certified results of all such testing to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect, or to require testing and inspection of material and work, at Property Owner's expense. Any material or work not conforming to the approved plans and specifications, including but not limited to damages to property adjacent to the construction plan area shall be repaired, removed or replaced to the satisfaction of the County at the expense of Property Owner. 4.0 Release of Liability: Property Owner 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 improvements, 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. All contractors and other employees engaged in construction of the 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. 5.0 Warranty of On -Site and Off -Site Improvements: Property Owner shall warranty all improvements to public rights -of -way, (if any), and all privately created and maintained roads NM or rights -of -way, or easements, and all on -site improvements for a period of two (2) years. The warranty period shall begin only after the County's execution of a written acceptance of the improvement(s). O aSU r= �. 6.0 Acceptance of On -Site and/or Off -Site Improvements by the County: Upon 2 ea mos compliance with the following procedures by the Property Owner, the improvements shall be 323 deemed accepted by the County. if collateral had been initially posted for the improvements. i m3cm The BOCC does not represent or ensure the on -site improvements will be constructed and/or S ti c available for their intended use(s). L. se Nu. 0 rim: as. vi-FX vaseen L No(''Engineering I'1 ANNINti DI VI•.L(.)PMl•.NI RI.VI} tl' Pre-AccclaRete alsll)ld Numbering) d!Sk-t.kx h 15R -17u4 Special Re%rcw I15k-I'Heartland Renewable Nam in m Resources lrnpro%crnrnt Agreement 'Heartland Renewable 1-ncrgv(1ISR-17NPan 2-(ieneral I'r i isum>-I IA 4"-14-Iiidnc� eNCaw erDo 7. els .-• Q1 a ecu� 6.1 If requested by the Property Owner and approved by the County, portions of the improvements may be placed in service when completed according to the schedule shown on Exhibit "B," but such use and operation shall not, alone, constitute an acceptance of said portions of the improvements. 6.2 County may, at its option, issue building permits for construction for which the improvements detailed herein have been started but not completed according to the schedule shown on Exhibit "B," and may continue to issue building permits so long as the progress of work on the USR improvements in that phase of the USR is satisfactory to the County, and all terms of this Agreement have been faithfully kept by Property Owner. 6.3a Upon completion of the construction of the required off -site improvements, and the filing of a Statement of Substantial Compliance by Property Owner's engineer, the Property Owner may, as set forth in Section A.9.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer shall. upon request by the Property Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. The County Engineer shall reinspect the improvements after notification from the Property Owner that said deficiencies have been corrected. If the County Engineer finds that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. - ■ Os o vZia ��3 a w =' O 0.8i W t- en mati Ct °t x -MN aN0. N U no m in Li J v G DINE o U C' �m r� Cr CD 6.3b Upon completion of the construction of the required on -site improvements, and the filing of a Statement of Substantial Compliance, when necessary, by Property Owner's engineer, the Property Owner may, as set forth in Section D.4.0, request in writing that the County inspect the improvements and recommend to the Board of County Commissioners that the improvements be accepted if collateral had been initially posted for the improvements, and further that the two-year warranty period begin. Upon completion of the two-year warranty period, the County Engineer and/or the Weld County Department of Planning Services shall, upon request of the Property Owner, inspect the subject improvements, and notify the Property Owner of any deficiencies. If any deficiencies are discovered, the Property Owner shall correct the deficiencies. The County Engineer and /or the Department of Planning Services shall reinspect the improvements after notification from the Property Owner that said deficiencies have been corrected. If the County Engineer and/or I I of 22 I ngmeenng'PI-ANNING • DEVELOPMENT REVIEW' Pre-Accela Referrals 1O1d Numbering)\USR-Use by Speeral Review'IJSR-1704 Ikanland Renewable R_sourccs`\Improvements Ageemennlicanland Renewable Energy (IJSR-1704) Pan' -General Provisions -FR I7-14-131 doex Department of Planning Services find that the improvements are constructed according to County standards, he or she shall recommend full acceptance. Upon a receipt of a positive unqualified written recommendation from the County Engineer and/or the Department of Planning Services for acceptance of improvements within the USR, the Board of County Commissioners shall fully accept said improvements. 7.0 General Requirements for Collateral: (Currently no on -site collateral for USR-1704 is required, but possible future on -site collateral may be required by County, should the Property Owner revise conditions of operation in the future.) 7.1 County requires Property Owner to provide collateral to guaranty all of Property Owner's obligations under this Agreement: (1) Project Collateral for completion of all improvements described in this Agreement shall be provided for off -site improvements with no on -site collateral for USR- 1704 required at this time. Possible future on -site collateral may be required by County, should the Property Owner revise conditions of operation in the future. (2) Warranty Collateral required for all improvements during the warranty phase: and (3) Road Maintenance Collateral (If Applicable) to be kept in place for the life of the permit. 7.2 Project Collateral submitted to Weld County to guarantee completion of the improvements indentified on the accepted Construction Plans and USR13-0014 Plat Map and further enumerated in the costs listed in Exhibit "A," must be equivalent to One -Hundred Percent (100%) of the value of the improvements as shown in this Agreement This collateral must be submitted to County upon the execution of this Agreement, or at a time determined acceptable by the Board of County Commissioners, and shall be held in total by County as provided in Paragraph E. 7.3 below until all improvements have been completed. 7.3 Warranty Collateral for all oft -site improvements shall be submitted to County and shall be held in total by the County for two (2) years following its written acceptance of the improvement(s). a er- - bra -le t. �D c� A azai _� o •�a it U.o= tee U + per_ ea— r c a' Till eV ail; Nc Si N 111 e mei U ISINc`U oct ` k 7.4 In the event Property Owner fails to adequately complete and/or repair improvements associated with this Improvements Agreement, County will access, in its sole discretion, Project or Warranty Collateral to the extent necessary to complete said improvements or repairs in order to preserve public interest. 7.5 Road Maintenance Collateral shall be submitted to County upon the release of the warranty collateral by the Board of County Commissioners or at the time of approval of this Agreement, if no Project Collateral was initially submitted. Road Maintenance Collateral is held for use on roads associated with the designated haul route. 12of22 U 'tngmeenng-PLANNING DEVELOPMENT VII %V Pre-Aceela Referrals Old NuntheringrAISR-(Jsc in Special Re%few tJSR•I'U4 Ilcatland Renewable Rcsources_!mpnwemems Agreement llcartland Reno% able Intl P P. (I rSR.ro4} Part 2-Gcncral Provisions-FIA Ia-! 5 .lOt\ If no Project Collateral was initially submitted, Road Maintenance Collateral shall be submitted at the time of approval for this Agreement or at such time that approved USR-1704activities are initiated. If the County has accepted a Corporate Guaranty as collateral pursuant to Weld County Code Sec. 2-3-30.D. Road Maintenance Collateral shall be submitted at the time of approval of the Improvements Agreement or at such time that approved permit activities are initiated. The submitted amount shall be $3,600.00 for facilities adjacent to paved haul route roads or $2,400.00 for facilities adjacent to gravel haul route roads, and the amounts will be listed on Exhibit "A"- Cost Sheet (OFF -SITE). Road Maintenance Collateral shall be held by County as long as this Agreement is in effect and returned to Property Owner upon vacation of associated land use agreement or permit. The Road Maintenance Collateral will only be accessed by County, if following notification to Property Owner of required roadway safety related repairs, Property Owner fails to perform said repairs within the time allowed in County's notification. If any of this collateral shall be collected by County, Property Owner shall replace the amount, plus interest, within six (6) months. o -c - co 0a� r, m m (.0) •3as= 0 - 0 otai lc Li. O „,a ti- rn --". ft Cie LLNea. —411 Nc� — lenN slain, reenti- ire 7.5.1 Road Maintenance Collateral Option (For Materials Haulers): In lieu of cash collateral, Property Owner may submit funds quarterly to Weld County, at a rate of ten (10) cents per ton, based on the amount of processed material leaving the site. These funds will be escrowed by the County and utilized for roadway repairs specific to the USR's designated haul route. The first payment of funds will be due three months after the initial sale of materials from the USR site. Subsequent quarterly payments will be deposited in the associated escrow account until the USR permit is terminated. Utilization of this collateral option will negate any further obligations of the Property Owner to participate in any future maintenance and/or improvements projects for the associated Haul Route. Upon vacation of the USR for this facility and following determination by Public Works staff that no immediate repairs are required for the Haul Route, any remaining funds in the escrow account will be returned to the USR Permittee. 7.5.2 Road Maintenance Collateral (For Off -Site Dust Control — If Applicable): The total costs for materials and application, will be listed on Exhibit "A" (OFF -SITE) - Dust Control, of this agreement. These funds will be utilized by the County for roadway applications specific to the USR's designated haul route, only if the Property Owner does not adhere to the requirements for dust suppression as specified in Section A.6.0 of this agreement. Following completion of all construction phases, and/or upon vacation of this USR, and following determination by Public Works staff that no immediate 13 012_' l' Engineering PLANNING DEVELOPMENT REVIEWPre-Accela Referrals rtlld lumbering l 11SR-Use hSpecial Re‘re‘s E1SR.I-114 Heartland Renewable Resources Improsements Agreement Heartland Renewable Energy (IJSR-I %041 Part 2-tienetal Provisions-FIA $--14-I{ daw repairs are required for the Haul Route, any remaining Dust Control collateral will be returned to the USR Permittee. 7.6 Acceptable Project Collateral shall be submitted by the Property Owner upon execution of this Agreement, as herein defined. 7.6.1 No grading or building permits shall be issued for any site related activities, on the property and no Site Preparation shall commence until cost estimates for all improvements are updated, and the development plans are revised to comply with all current County standards, policies and regulations, except with prior County consent. The improvements shall be completed within the time schedule set forth in Exhibit "B", which is attached hereto and made a part of this Agreement. "Site Preparation" shall mean earthwork grading or performance of work, or construction or installation of improvements related to Property Owner's operations pursuant to USR-1704 that require a grading or building permit from the County pursuant to the Weld County Code. In the event that the Improvements outlined in this Agreement and Exhibit A are not completed within one year of the execution of this Agreement Weld County may require Property Owner to obtain current cost figures for one or more of the Improvements. 7.7 Collateral may be in the form of an irrevocable letter of credit (LOC) in an amount equivalent to one -hundred percent (100%) of the total value of the improvements set forth in the Improvements Agreement and the Plat; the LOC shall be subject to the requirements of Weld County Code Section 2- 3-30 B. The Property Owner shall utilize only a County approved form when obtaining an LOC: (IRRVEVOCABLE STANDBY LETTER OF CREDIT FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said form shall be provided to Property Owner upon request. r r N 7.8 Collateral may be in the form of a corporate guaranty given by a legal entity in good standing and authorized to do business in the State of Colorado or the applicable governmental licensing agency of the Guarantor's state of incorporation, in an amount equivalent to one hundred percent (100%) of the value of the improvements set forth in the Improvements Agreement and the Plat. The corporate guaranty shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. The Property Owner shall utilize only a County approved form when obtaining a corporate guaranty: (CORPORATE GUARANTY FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said form shall be provided to Property Owner upon request. 14 of 22 U Engineering l'l ANNItit, 1)1 VI -I t if)M1 NT I-.%/ A lire-AcccIa Referral; tt)1J Numbering) (ISR-IJse by Special Rcvhcs l!SR-I "0•l Heartland Renessahie Resources fntlxiwement‘ A>•reenrcnt HcartlanJ kern; ahir t nags U!SR-I'0-il Pan _-Genera) Provisions -I- IA ('-)4-I5 don 7.9 Collateral may be in the form of a surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to one hundred percent (100%) of the value of the improvements set forth in the Improvements Agreement and the Plat. The surety bond shall conform to and be subject to the requirements of Weld County Code Section 2-3-30 B.4. The Property Owner shall utilize only a County approved form when obtaining a surety bond: (PERFORMANCE BOND FOR BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO). A copy of said form shall be provided to Property Owner upon request. 7.10 Collateral may be in the form of a cash deposit made with the Board in an amount equivalent to One Hundred Percent (100%) of the value of the improvements set forth in the Improvements Agreement. In the event the Property Owner is required to warranty the improvements, the Property Owner shall replace the original deposit with a deposit in the amount of fifteen percent (15%) of the original amount and those funds shall remain available to the County until released by the County at the end of the warranty period. all i �r- 0 -J VZ- •-4ari S3a—ett o• it SI Nis rat Uat t 01 mite anNya . _ J Nu m miem Ca n" luN0 G\Y r+m > a- mo 7.11 The Board of County Commissioners reserves the right to reject collateral which is deemed inappropriate or insufficient, which may be either as collateral in the form of a letter of credit offered by a banking institution which does not have at least a "three star" rating given by Bauer Financial, or as collateral in the form of a performance bond offered by an insurance company which does not have at least a B+ rating given by A.M. Best, or as collateral in the form of a corporate guaranty offered by a legal entity which does not have a rating classification of 5A, 4A, or 3A, and does not have a Composite Credit Appraisal of 1, 2, or 3 given by Dun and Bradstreet Credit Rating Reports. If the Applicant meets all of the requirements provided in the previous sentence regarding a corporate guaranty, the Board may then decide whether acceptance of a corporate guaranty agreement is appropriate under the circumstances. The Board may consider (1) the value listed in the improvements agreement. (2) the net worth of the Guarantor, (3) the Applicant's history regarding successful local projects, and (4) anything else the Board deems relevant and appropriate for consideration for a corporate guaranty as a form of acceptable collateral. The Board further reserves the right to require Property Owner to obtain replacement collateral lithe rating of the financial institution providing said collateral drops below the levels stated above. Replacement collateral shall be submitted by Property Owner within sixty (60) days of the Board's notice to Property Owner that the rating has fallen and that the collateral must be replaced. Property Owner may not terminate existing collateral until replacement collateral has been secured. U ;Engineering PLANNING - DEVELOPMENT RI 1 5 of 22 L If \V I'rc-Acc:la Referrals (rid Numbenng)AlSR•I!sc bs Special Re%rew I ISR-I'II-1 ((eartlana Renewable Resources'Improvemcn:s AgreementsHeartlandRenewable frier (('SR-17Q41 Part _-Gcnt'ral Provrswns-1.1A '-l4-1A1 doc\ 8.0 Request for Release of Collateral: Collateral shall be released in accordance with the provisions of Weld County Code Section 2-3-30.C. Prior to release of collateral for the entire project or for a portion of the project by Weld County, the Property Owner must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado. The Statement of Substantial Compliance shall state that the project or a portion of the project has been completed in substantial compliance with accepted plans and specifications documenting the following: 8.1 The Property Owner's Engineer or his representative has made regular on -site inspections during the course of construction and the construction plans utilized are the same as those accepted by Weld County. 8.2 For the improvements to public rights -of -way or easements, test results must be submitted for all phases of this project as per Colorado Department of Transportation (CDOT) Schedule for minimum materials sampling, testing and inspections found in CDOT Materials Manual. 8.3 `'As -built" plans shall be submitted at the time the letter requesting release of collateral is submitted or at such time as the Property Owner has completed improvements as shown on the USR-1704 Accepted Construction Plans and Plat Map, and shall be stamped and approved by an Engineer registered in the State of Colorado, if an Engineer was initially required for the project. The Property Owner's Engineer shall certify that the project `'as -built" is in substantial compliance with the plans and specifications as approved, or that any material deviations have received prior written acceptance from the County Engineer. 8.4 The Statements of Substantial Compliance must be accompanied, if appropriate, by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. a a. ea — D c e-+ Uy ,s :3 a. wtti O �a O L • co o'me .mama_ Ct va le ea dNm 1 No S CD a- in N re to o ) o .-4 > cr I-4 01 8.5 A letter must be submitted from the appropriate Fire Authority, if applicable, indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and. if required by the County, state the results of fire flow tests. 8.6 The requirements in the paragraphs 8.0 through 8.5 shall he noted in the final Construction Plans. 8.7 Following the submittal of the Statement of Substantial Compliance and written recommendation of acceptance of the improvements by the Weld County Department of Planning Services and the Weld County Department of Public Works, the Property Owner (if Property Owner has supplied any or all of the collateral) may request release of the collateral for the project or portion of the project by the Board. This action will be taken at a regularly scheduled public meeting of the Board. 16 of 2 it +Engineering PIANNIVG I)1•VI:Le PMLNI RI - VIEW Prc-AccclaReterralt,4OIdNuntlxttngl'A1SR-1'se hsSpectalRes less Resources Impru%crnrnts Agreement Heartland Renewable l twrgs IIISR-1"t141 Part 2-tieneral host u,m-FIA t 7-IJ-15? dots sk • 1704 Heartland Renewable 8.8 Following the written request for partial release of the "Project Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the on -site and/or off -site improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the partial release of "Project Collateral". For all off -site improvements (including improvements to public rights -of -way or easements), the written request for release of "Project Collateral" shall be accompanied by "Warranty Collateral" in the amount of fifteen percent (15%) of the value of the improvements as shown in this Agreement. 8.9 Following the written request for release of the "Warranty Collateral", the Weld County Department of Planning Services and the Weld County Department of Public Works County shall inspect the improvements. If the improvements require mitigation or further repairs are required, said work must be completed prior to the conclusion of the Warranty period. The "Warranty Collateral" shall be released to the Property Owner following the expiration of the warranty period upon final written acceptance by the Board of County Commissioners. 8.10 For all off -site improvements (including improvements to public rights -of - way or easements), the written request for release of "Warranty Collateral" shall be accompanied by "Road Maintenance Collateral" (If Applicable) as specified in Section E.7.5 of this Agreement. "Road Maintenance Collateral" for roads associated with the designated haul route shall be maintained as long as the USR is active. O i ~i m -0 -_- r' Ca .32 r>' yLS O L � a L o - - r4 t, Zr cos p,NLyt ti ri rat. N a in VN \Y L .gym r aE. Q\ 9.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Property Owner without the express written consent of County and the written agreement of the party to whom the obligations under this Agreement are assigned. Property Owner's release of its obligations shall be accomplished by County's execution of a new Improvements Agreement with the successor owner of the property. (See paragraphs F. 1.2 and 2.2 below) Consent to a delegation or an assignment will not be unreasonably withheld by County. In the event of sale of the Property, County may agree to release Property Owner in whole or in part from obligations under this Agreement. 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 Owner, and upon recording by the County, shall be deemed a covenant running with the land herein described. 10.0 County Engineer: All references in this Agreement to "County Engineer" shall refer to the any individual or individuals appointed by the County Engineer to act on his/her behalf. I Engineering PI. ANN' N( I"ot?_ DEVELOPMENT REVIEW Pic-Acceta Referrals it Ad Numbering hUSR-I'se b% Special RevreH I:SR.I'NM Ile.+rtland Reacccahlc Resources Improcernenr. Agreement Heartland Rcnosahle Energy ItISR -I '041 Part '•General Provisions -F IA ("1-14-1i) dot %. 11.0 Violation of Terms of Agreement: If in County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify Property Owner 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 Owner 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 there has been a violation of the terms of this Agreement, County shall initiate proceedings to revoke the permit which is the subject matter of this Agreement. Violations of the terms of this Agreement include violations of the agreements contemplated by Sections C. 4.0 & C. 5.0 of this Agreement, and a failure to enter into such Agreements in a timely manner. F. Termination of Agreement: 1.0 Termination Event: This Agreement shall terminate upon the earliest of the following events: 1.1 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon Operator's complete cessation of all activities permitted under USR- 1704 or any amendments thereto. 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. Operator shall provide written notice to Property Owner and County of said cessation of activity, which County shall then verify. If written notice is not provided to County, Termination of this Agreement shall not occur until County has determined that the Use by Special Review is inactive, which shall be three (3) years following County's observance of the cessation of activities, as provided in Sec. 23-2-200.E of the Weld County Code. 1.2 Execution of Replacement "Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704 by New Property Owner: This Agreement shall terminate following County's execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704with a new Property Owner who has purchased the Property, and intends to make use of the rights and privileges available to it through the then existing USR. t isAf 1.3 Execution of Replacement "Improvements Agreement According to CD -Pe Policy Regarding Collateral for Improvements — USR-l704by New Operator: This ai m m 3 _ Agreement shall terminate following County's execution of a new Improvements c r Agreement According to Policy Regarding Collateral for Improvements — USR-1704 m LL with a new operator who has assumed the operation of the business on the Property Ncrci`. which business activities are permitted by the then existing USR. .n A oti` IL s m 2.0 Termination Procedures. tau t 2.1 Termination Procedures Following Cessation of Permit Related Activities: �N g° a Following the events outlined in paragraph 1.1 above, County shall conduct its annual am r__ road inspection. Said road inspection shall be conducted on or before May 31 following el the announcement or determination of the cessation of permit related activities on the u 1, l! ;Engmecnng'PLANNJNG DEVELOPMENT REVIEW Pre-Accela Referrals (Old Numbenng)IUSR-Use by Special ReviewUJSR-1704 Heartland Renewable IS of Resources Improvements AgeementlUeartland Renewable Energy (IMSR-1704) Part 2 -General Provisions-FIA (7-I4-15) docx Property. The results of the inspection shall be delivered in writing to the Property Owner and Operator. If the County determines that pursuant to the terms of this Agreement, the Operator must complete any of the improvements and/or road maintenance obligations outlined herein, said obligations must be completed within a reasonable period of time thereafter, but in no event later than six (6) months following the determination that permit related activities have ceased. Collateral shall not be released by County until such time as county determines that all of the improvements have been completed. 2.2 Termination Procedures Pursuant to Transfer of Ownership of the Property or Transfer of Operations: If the Property Owner or Operator desires to assign its rights and obligations under this Agreement to a successor Property Owner or Operator, the Property Owner or Operator shall, prior to the transfer. provide County with a written Notice to Transfer, stating the date of transfer, and identifying the party to whom the transfer shall be made. Following receipt of the Notice to Transfer, County shall inspect the improvements required under the terms of this Agreement to determine whether the improvements have been completed. If the improvements have not been completed, the Property Owner and/or Operator shall either complete the improvements or post collateral equal to the cost of the completion of the improvements, if such collateral is not in place. If collateral is available at the time, County shall hold a hearing to determine whether the collateral should be called upon to pay County or a contractor of the County to complete the improvements. County shall also inspect the road(s) which are covered by this Agreement to assess the current condition of the road(s) and determine whether Operator and/or Property Owner would be required to perform road maintenance within the following twelve months had the Agreement not been assigned. If road maintenance is, in the opinion of County, required, Property Owner and/or Operator shall be required to either perform the road maintenance or to post collateral equal to the cost of said maintenance. County shall not execute a new Improvements Agreement According to Policy Regarding Collateral for Improvements - USR-1704 with a successor Property Owner and/or Operator prior to the performance of the road maintenance or the posting of collateral for said maintenance, unless the new Property Owner and/or Operator posts collateral for the required maintenance. O_ - c a- 03 tip en 3 i tS -- a O ya r,•o r- oil �v� Ce wa ro fiNm� m"3 in ;Es inNot et rim 4. fug 3.0 Consequence of Termination by Cessation of Permit Related Activities: Following County's confirmation that Property Owner and/or Operator has/have ceased all permit related activities and has/have completed previously uncompleted Improvements and or completed any required road maintenance, County shall release Property Owner and/or Operator from all further obligations under this Agreement. No Further permit related activities shall be permitted unless and until approved by County following execution of a new Improvements Agreement According to Policy Regarding Collateral for Improvements - USR-1704 with a Property Owner and Operator. 4.0 Consequence of Termination by Execution of Replacement Improvements Agreement: Following County's execution of an Improvements Agreement According to Policy Regarding Collateral for Improvements — USR-1704 with a successor Property Owner and/or Operator, the predecessor Property Owner and/or Operator shall have no further rights and/or obligations under this Agreement or in USR-1704. 14 of 22 ti tEngmccnng PLANNING !)EVE:LOPML\ I RI VIEW Pre-Accela Referrals it I'd Numbering PIISR-I'sr M Special Re%rr.. • I;SR-I 'I 3 Ilcartland Renc..ahle Resourceslmpmsement+ Agreement IIe rtland Rcnes..rhle I ncrgs II!SR-I'(idr Pan '- ieneral Prtbcr.rum-FI.A I -I-15 drw� 5.0 Consequence of Termination Pursuant to Section E.11.0: In the event that activities related to USR-1704 cease as a result of the revocation of the permit as described in Section E.11.0 of this Agreement, neither Property Owner nor Operator will be released from any of the obligations imposed by the terms of this Agreement only after Property Owner's successful completion of all improvements required under this Agreement or after County accesses the collateral to the extent necessary to complete improvements County. in its sole discretion, deems necessary to preserve public interests. G. 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. H. Enforcement: It; in the County's opinion, Property Owner has violated any of the terms of this Agreement, County shall notify property Owner of its belief that the Agreement has been violated and shall state with specificity the facts and circumstances which the County believes constitute violation. Property Owner shall have thirty (30) days within which to either cure the violation or demonstrate compliance. If. after thirty (30) clays have elapsed, County believes in good faith that a violation of the terms and conditions of this Agreement still exists (despite cure), County may enforce by any legal means, including, but not limited to, legal action for equitable or monetary relief filed in the Weld District Court, execution upon submitted collateral (if applicable), and/or administrative action of the County to suspend or revoke the underlying land use permit or approval pursuant to the procedural provisions of Section 2-4-40 of the Weld County Code. Violations of the terms and conditions of this Agreement include, but are not limited to, violations of the agreements Property Owner must enter into as required by this Agreement. and/or failure to enter into such agreements in a timely manner. I. 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. J. 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 Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement within five (5) days of recei ing such request. 4141050 Pages: 22 of 31 09/10/2015 02:20 PM R Fee:$0.00 Carly Koppes Clerk and Recorder Weld Count, ■III �«�� I�;hLGti'N�� O�h�l1 ifli��F,�I�N�� Yi;l��I II 7%0 (.' Engtnecnng PI \Ntiltit : 111 V F.LOPMENf RI: VILNA Prc-Acccla Referrals (Old NurnbenngfUSR-Use b> Special Res tew•1:SR-I'tt1 Heartland Renewable Resources Imprmeinent. Agreement Heartland Renewable I nergs. ILISR-1704 Pan `-General Provtstnns.FIA I' -14-I5 dokr IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PROPERTY (Heartland Biogas, LLC) OWNER: BY: EDF Renewable Development, Inc. SIGNATURE £ PRINTED NAME MUM QRLei TITLE (If Applicable) Vice Pt ES %,CENr STATE OFea( r County of ikttzl Ss. The foregoing instrument was acknowledged before me this tom day of 2015, by 1 ..c�Q. k 1� c tJ`'1 WITNESS my hand and official seal. iy Public My commission Expires: 3 3 It 4141050 Pages: 23 of 31 09/10/2015 02:20 PM R Fee $0 00 Car y Koppes Clerk and Recorder Weld County CO CV \``�\ % tllltI ttu 4� v • No . Reg• = r n t; 7042 371 itt 21 of 22 ti Engineering t'LANNI \G DEVLLOPJII.N I RI VIEW Pte-A.xela Rd -trials told `utnhcnngl`USR-1 se h) Specsal Res sew' USR-1704 Ifeanland Rencssable Resources Iltlm) o%emullls Agreement Ilcanlarld Re:losable Energy IUSR•1704; Part 2-(icneral Provisions -1-1A (7.14-1$) dot:r LESSEE (If Applicable): SIGNATURE PRINTED NAME TITLE STATE OF COLORADO ss. County of Weld The foregoing instrument was acknowledged before me this day of 2015, by WITNESS my hand and official seal. Notary Public My commission Expires: aim s-i o r tttr a a o—• U a t _ e ..= M m , L� a O gi NLLo� ixm et ma E 121 10 &Nds f2 Nv So ;744 �N o t. =a acn men ATTEST: Waitaki Sc o;ci Weld my Clerk to the Beard WELD COUNTY, COLORADO BY: Deputy CI rk to the Boar APPROVED AS TO FO County Attorney BOARD OF COUNTY COMMISSIONERS AUG 1 9 2015 APPRO�D AS TO SUBSTANCE: or e.artment Elea 22 of 22 U: Engtnccnng PLANNING - DEVELOPMENT REVIEW-Pre-Acccla Referrals (Old Nwnbering)1USR-Use by Spectal Res sew \USR-I 704 Hcanland Renewable Resources.Improvetnents Agreerncnt'Heanland Renewable Energy (USR-1704) Pan 2•Gencral Provistons-FIA (7-14-15) docx O24O/s arg EXHIBIT A - Cost Sheet (OFF -SITE Name of Facility: Heartland Biogas, LLC Personnel Contact: Name Ralph Daley Filing/Case #: USR-1704 "title: Vice President Location: Pt SE4 Sec 25, T4N, R65W Phone: 703-905-8110 Intending to be legally bound, the undersigned ,applicant hereby•agree r to prop•idr throughout thisjacilin the ji�!lowin i No gmp ....�.... Improvements (Leave spaces blank where they do not apply) (OFF -SITE) Ouantity 'pith unit Costs (Sj Estimated Construction Cost (11 jPUBLIC WORKS). Site Grading Street Grading Street Base, Gravel for Parking Street Paving Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Entrance/Access Improvements Erosion Control Measures/BMP's Road Maint. Collateral (per Sec. E.-7.5) Dust Control (per Sec. E.-7.5.2) Fire Hydrants Survey, Street Monuments/Boxes WCR 49 & WCR 40 Intersection Corporate Guaranty By E DF Renewable Energy. Inc. $735,630.00 JPLANNING SERVICES Parking Area, Curb Stops, Bus Kiosks Street Lighting Street Names Signage Fencing Requirements Landscaping, Seeding, Trees, etc. Park Improvements 4141050 Pages: 25 of 31 Handicap Accessibility, Parking & Rails 09/10/2015 Car y Koppes 02:20 Clerk PM and R Fee Recorder :$0.00 Weld Coup t, CC Septic Systems III fill:Aral fl .'l: ht1,'M4 «C:K: '''iii I:',I'P'IXV1''kiii 1t 11111 SUB -TOTAL: $735,630.00 ( I esting, inspection, as- uiit plans and work in ad ition to preliminary and Engineering and Supervision Costs (S) final plat; supervision of actual construction b, contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS, ENGINEERING AND SUPERVISION (S) $735,630.00 EXHIBIT A - Cost Sheet (OFF -SITE ) - Signature Page The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this provision shall be determined solely by Weld County, or its duly authorized agent. Said improvements shall be completed according to the construction schedule set out in Exhibit B By: 40:;41644" Applicant dot via Atis 10EA17 Date f'1JG zi T 6 . 20 IS Title By: Applicant Title 4141050 Pages: 26 of 31 09/10/2015 02 20 PM R Fee:$0 00 Carly Kocpes Clerk and Recorder Weld County :0 VIII R PjI�'P�t'I■;`FY�'Iw�l f'I VIII II' IPA la 'I'll' 11111 Date , ?0 EXHIBIT B - Time Schedule (ON -SITE) & (OFF -SITE) Name of Subdivision. PH), USR, RE, SPR: USR-1704 F allay/Case 1$: Location: Pt SE4, Sec25, T4N, R65W Intending to be legal& bound, the undersigned: applicant hereby agrees to provide throng/rout this facility the following improvements All improvements shall be completed within 2 years from the date of approval of the final plat. Construction of the umprovements listed in Exhibit A shall be completed as follows: Improvements (Leave spaces blank where they do not apply I Tinge Schedule (ON -Si TE ] OFF -SITE] ,PUBLIC WORKS Site Grading Street Grading Street Base, Gravel for Parking Street Paving Pavement Marking Curbs, Gutters, and Culverts Sidewalk Stormwater/Drainage Facilities Retention / Detention Ponds Road Culvert Grass Lined Swale Ditch Improvements Subsurface Drainage Entrance/Access Erosion Control Measures/BMP's Fire Hydrants Survey, Street Monuments/Boxes WCR 49 & WCR 40 Intersection Fall 2016 ;PLANNING SERVICES] Parking Area, Curb Stops, Bus kiosks Street Lighting Street Names Signage Fencing Requirements Landscaping, Seeding, Trees, etc. Park Improvements Handicap Accessibility, Parking & Rails Septic Systems Final ( ompletion Date for Entire Project Fall 2016 4141050 Pages: 27 of 31 09/10/2015 02 20 PM R Fee:$0.00 Car y Koppes Clerk and Recorder Weld County -0 i ji k,2111, 41,411 ii i N iik IAritti!rLivi, II II EXHIBIT B - Time Schedule- Signature Page The County, at its option, and upon the request of the Applicant, may grant an extension of time for completion for any particular improvements shown above, upon a showing by the Applicant that the above schedule cannot be met. By: Applicant VILE flEiioeill Title By: Applicant Title 4141050 Pages: 28 of 31 09/10/2015 02.20 PM R Fee:$0 00 Carly K, PPe Car s I:Jerk and (Recorder Weld PAIN I:1/27:I i■1 e'1■i' IiIr'�1�1f IiiklinrActi, II III CO Date 4116VSr T w .20 15 Date , 20 O \New Version Agreement\Exhibits\2013\Exh B Time Schedule-FINAL(2013) xlsx i Execution Copy FIRST AMENDMENT TO GUARANTY This First Amendment to Guaranty, dated August 4, 2015 (this "Amendment"), is entered into by and among EDF Renewable Energy, Inc. ("Guarantor") and County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, the ("Beneficiary"). Guarantor and the Beneficiary may be referred to as a "Party" or the "Parties". RECITALS A. Guarantor delivered to Beneficiary that certain Guaranty dated as of December 9, 2013 (the "Guaranty") pursuant to which Guarantor agreed to guarantee certain obligations of Heartland Biogas, LLC (the "Company") under that certain Improvements Agreement According to Policy Regarding Collateral for Improvements (as amended, modified and supplemented from time to time, the "Agreement"), pursuant to which the Beneficiary and the Company are agreeing to certain requirements related to the on -site and off -site improvements the Company will undertake in connection with the construction of the facilities contemplated by a Use -by -Special Review for Property located in Weld County, Colorado (USR-1704). B. The Parties hereto desire to amend the Guaranty on the terms set forth herein. NOW THEREFORE, for and in consideration of the agreements herein made and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: I. Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings specified in the Guaranty. 2. Amendment. Section 3 of the Guaranty is hereby amended by replacing the phrase "Two Hundred Forty Thousand Four Hundred Twenty -Five Dollars ($240,425)" with the phrase "Seven Hundred Thirty -Five Thousand Six Hundred Thirty Dollars ($735,630)". Section 10 of the Guaranty is hereby deleted in its entirety and replaced with the following language: "This Guaranty shall be governed by and in all respects in accordance with the laws of the State of Colorado, United States of America, without reference to conflicts of laws." Section 11(b) is hereby amended by replacing the phrase "the federal or state courts located in San Diego, California" with the phrase "the federal district court for the district of Colorado or the Weld County District Court". 3. Original Guaranty. Except as amended hereby, the terms and conditions of the Guaranty shall remain in full force and effect and nothing in this Amendment shall be construed as a waiver of any rights of either Party thereunder. Each reference in the Guaranty to the "Guaranty" and the use of the words "herein", "hereof', "hereunder" and other words of similar import shall be deemed to be a reference to the Guaranty, as amended by this Amendment. 4. Miscellaneous. (a) Entire Agreement. This Amendment constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all oral communication and prior writings with respect thereto. No amendment, modification, or waiver 4141050 Pages: 29 of 31 09/10/2015 02:20 PM R Fee:$0.00 Car y Koppes Clerk and Recorder Weld Count, CO iii 14VACO It c2o/o'-,0217i i r in respect of this Amendment shall be effective unless in writing and executed by each of the Parties. (b) Headings. Headings used in this Amendment are for convenience of reference only and shall not affect the construction of or be taken into consideration in connection with the interpretation of this Amendment. (c) Execution in Counterparts. This Amendment may be executed in multiple counterparts and by each Party in separate counterparts, each of which shall be an original and all of which, when taken together, shall constitute but a single agreement. The delivery of an executed counterpart to this Amendment by electronic means, including via email, shall be effective as the delivery of a manually executed counterpart. [signature page follows] 4141050 Pages: 30 of 31 09/10/2015 02 20 PM R Fee.$0 00 Ta-ly Koppes Cie -k and Recorder Weld County CO VIII P PRR,R:Il+''%INTIM�E{►,��' ��III�I II i IN WITNESS WHEREOF, the Parties have caused this Amendment to Guaranty to be duly executed and delivered as of the date first above written. EDF Renewable Energy, Inc. By: Name: Tristan Grimbert Title: President and CEO Accepted and agreed to as of the date first above written: County of Weld, by and t,hrough its Board of County Commissioners By: Name: Title: Chair AUG 1 S 2015 4141050 Pages: 31 of 31 09/10/2015 02:20 PM R Fee:$0.00 Ca- y Koppes. Clerk and Recorder Weld County CO gill riediab:lilfi irit �,M��k'f+I ,1 E1CVJ,A, Ili II [Signature Page to First Amendment to Guaranty] do/Se-0277i Hello