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HomeMy WebLinkAboutRoad-Use-Agreeement-BOWF-draft-10-14.pdf- ROAD USE AGREEMENT THIS ROAD USE AGREEMENT, made this ---day of------; 20--, among Black Oak Wind Partners, a New York limited liability company with, its place of business located at 863 Hayts Rd, Ithaca NY 14850, and the Town of Enfield, a New York municipal corporation with offices at 168 Enfield Main Rd Ithaca, NY 14850. Black Oak and Enfield may sometimes be referred to herein individually as a "Party" or collectively as "Parties." WIIEREAS, the Town of Enfield has granted Black Oak the right to construct and operate Wind Energy Conversion Systems, as defined in Section ____ of Local Law No.1 of 2009 Town of Enfield, and related infrastructure, including access roads, electrical transmission lines and substations (the "Project"); and WHEREAS, in connection with the Project, Black Oak will need to conduct Heavy Deliveries on certain Roadways in the County and will need to make use of and modify certain portions of the Public Right-of-Ways in the County; and WHEREAS, the County has agreed to allow Black Oak to inspect and reinforce the Appurtenant Structures, as needed, in advance of Commencement of Heavy Deliveries to adequately support Project construction; and WHEREAS, Following the completion of construction, Black Oak has agreed to reconstruct the affected Roadways; and WHEREAS, the County represents and warrants that it has authority to grant the license and other rights conveyed herein; and WHEREAS, the County desires to allow Black Oak to use the Roadways, Public Right of Ways, subject to the terms and conditions set forth here. NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants contained herein, the parties do mutually agree as follows; 1. DEFINITIONS As used herein, the Following terms shall have the following meanings; a. "Agreement" means this Road Use Agreement and any and all amendments, exhibits, or schedules attached hereto. b. "Appurtenant Structures" means additional structures maintained or owned by the County that are related to the Roadways, such as bridges, culverts, drainage features, guardrails, utilities, and signs, c. "Certificate of Completion" shall have the meaning ascribed to it in Section 7. d. "Pre-Construction Inspection Report' shall have the meaning ascribed to it in Section 4. 2 "Heavy Deliveries" shall mean a trip to a destination in the County for Project construction purposes by any one of the following types vehicles: (i) redi-mix concrete trucks carrying concrete; (iii) trucks with capacity of 11 tons or more transporting aggregate to the Project site; (iv) trucks containing equipment such as WECD components, cables, or transformers, f. "Commencement of heavy Deliveries" shall mean the earliest date on which Heavy Deliveries occur. g. "Public Right-of-Way" or "County Right-of-Way" or "Right-of-Way" means the surface, the air space in, on, under, through or above the surface, and the area in, on, under, through, below or next to the surface of the Roadways. The Right-of-Ways in the Town of Enfield that are expected to be used are specified in Schedule 1. h. "Reinforcement" shall have the meaning ascribed to it in Section 4. i. "Roadway(s)" shall mean the highways, roads, streets, public ways, utility casements, public easements maintained by the County, as the same may exist now or hereafter. "County Engineer" shall mean a County-designated consultant with sufficient training and experience to conduct the tasks set forth in this Agreement 1<. "Wind Energy Conversion Device" or "WI CIT shall mean the siting of- one (1) mechanical device such as a wind charger, windmill or wind turbine designed and used to convert wind energy into a form of energy for commercial sale, The net metering of the output from a wind charger, windmill or wind turbine pursuant to a tariff filed with the New York State Public Service Commission shall not be considered a Wind Energy Conversion Device. 2. PERMIT The County hereby permits Black Oak and its employees, agents, and contractors, to enter upon the Roadways and the Public Right-of Way for the purposes of: a. During pre-construction, construction and remediation: (i) transporting personnel, equipment and materials over the Roadways to support the Project; (ii) making investigations and inspections thereon, including, without limitation, investigations related to the load-bearing characteristics of the Roadways and Appurtenant Structures, (ii) reinforcing and modifying the Roadways and Appurtenant Structures, and (iii) repairing and reconstructing the Roadways. b. During operation of the Project: (i) transporting personnel, equipment and materials over the Roadways to support the Project; (ii) using the Public Right-of-Ways For the ownership, operation, leasing, maintenance, location, upgrade, repair, movement, protection, reconstruction, relocation, removal, and replacement of the Project; provided that such use does not obstruct access to, travel upon, or other use of the specified Public Right-of-Way or rights by a public or private party. This Section 2(b) of this Agreement constitutes the permission necessary for overhead or -.3- underground crossing of a County highway pursuant to New York State Highway Law § 149. c. During decommissioning of the Project: (i) transporting personnel, equipment and materials over the Roadways to support decommissioning of the Project; (ii) complying with the requirements of the decommissioning plan set forth in the conditions of the County's special use permit for the Project. 3. GRANT OF LICENSE 3.1. Grant of License. The County hereby grants to subject to the terms and conditions of this Agreement, the non-exclusive right, privilege, and authority to use the public streets, alleys, and other Public Right-of-Way of the County, as they now exist or may be hereafter constructed, opened, laid Out or extended within the present limits of the County, or in such territory as may be hereafter added to, consolidated or annexed to the County. No use or rights herein granted in this Section 3.1 shall create or vest in any easement or any other ownership or property rights of any nature whatsoever in the County's streets, alleys or Public Right-of-Way. 3.2. Compliance with Laws. Black Oak agrees to comply with any ordinance or local law that is properly and lawfully enacted by the County during the term of this Agreement, and nothing in this Agreement shall be deemed to waive the requirements of any applicable codes and ordinances and local laws of the County, including but not limited to permit requirements. 3.3. No Representation by County. By consequence of the grant of this license, or subsequent approvals authorized by this license, the County makes no representation, express or implied, as to the condition of the Public Right-of-Way. 4. INSPECTION AND REINFORCEMENT 4.1. Pre-Construction Notification. On a date two (2) weeks or more prior to Commencement of Heavy Deliveries, shall notify the County or its intent to begin -Heavy Deliveries. 4.2. Pre-Construction Inspection. shall inspect the Roadways, Appurtenant Structures and the Public Right-of-Ways, including Roadway intersections, to identify those Appurtenant Structures, if any, that may not he sufficient to support the wear and tear and loads of expected construction activities and to document the condition of the Roadways. The results of such pre-construction inspections, including identification of reinforcements that recommends, if any, to enable the Appurtenant Structures to withstand the loads from expected construction activities ("Reinforcement") shall be documented in a written report certified to the County by a licensed engineer (the "Pre-Construction Inspection Report"). Within 10 days of submittal, the County Kngineer shall review the Pre-Construction Inspection Report and provide his acceptance of the report or comments on the report. shall not conduct any Heavy Deliveries prior to the County Engineer's approval of the Pre- Construction Inspection Report. As part of the Pre-Construction Inspection, will take photographs or videos of the Roadways at a maximum interval or 200 feet, and -4 at substantially lesser intervals in the vicinity of all access road intersections, to document the condition of all roadways and road shoulder area that may be impacted by construction traffic. The Pre-Construction Inspection Report shall include photographs taken with rulers or similar measurement techniques that will document the depth of ruts, if any, existing in the Roadways prior to Project Commencement. 4.3. Reinforcement. If the Pre-Construction Inspection Report recommends Reinforcement of Appurtenant Structures, shall not conduct any Heavy Deliveries over the subject Appurtenant Structures without first completing the Reinforcement. shall perform Reinforcement only after the County approves the proposed activities. Reinforcement shall be performed in such a manner so as to minimize the effects on local transportation and shall be coordinated with the County with respect to its planned construction (if any) affecting the Roadways and Public Right-of-Ways. 5. CONDITIONS ON USE OF ROADWAYS Access Limitations for Heavy Deliveries. Deliveries over any County Roadways in the Town of Schedule 1 as approved for Heavy Deliveries. shall not cond uct Heavy that are not listed in and the County agree to work in good faith to modify Schedule I as may be needed to support Project construction. 5.2. Impacts on Local Transportation. transportation and construction activities on the Roadways shall be conducted in such a manner as to minimize the effects on local transportation and to minimize redundancy in road construction, including scheduling deliveries of components and materials to avoid the Project causing delays during rush- hour traffic periods, if any, on the Roadways. agrees to actively coordinate scheduling of road use, including any activities that could result in temporary road closure, with the local school district bus schedules and with local public safety agencies. shall publish in the Attica and Warsaw Pennysaver newspapers notices of significant road closures, if any, that are known in advance of publishing deadlines to be caused by the Project. 6. CONDITIONS ON USE OF THE PUBLIC RICHT-OF-WAY 6.1. Use Subordinate. use of the Public Right-of-Way is (i) subordinate, and non-exclusive, to the prior and continuing right of the County; and (ii) non-exclusive to the use of other persons authorized to use the specified Public Right-of-Way. shall not be required to bear any of the costs of rearranging or transferring the Project if such a rearrangement or transfer is required as a result of the use by any party, other than the County, of the Public Right-of-Way, unless any prior existing license, franchise, or easement granted by the County so requires. 6.2.. No Adverse Trnpaca. E'xcept as permitted by applicable law or as set forth herein, shall not endanger persons or property or unreasonably obstruct access to, travel upon or other use of the specified Public Right-of-Way, nor shall damage or materially impair any other facilities therein, including without limitation, streets, sidewalks, sanitary sewers, storm drains, water mains, gas mains, poles, overhead or underground wires or conduits without the prior written approval of the County. 6.3. No Expense to County. U pon approval of this Agreement, the use of the Public Right-of- Way shall be accomplished without cost or expense to the County and shall be in accordance with all applicable laws, rules and regulations and such other standards as the County may from time-to-time lawfully apply generally to private users of the Public Right-of-Way and shall he accomplished in such manner as not to endanger persons or property or unreasonably obstruct access to, travel upon or other use of the specified 'Public Right-of-Way. 7. REPAIRS DURING AND AFTER CONSTRUCTION 7.1. Road Reconstruction. hereby agrees that it shall, during constructi on, until a Certificate of Completion has been issued, repair any damage to Roadways or Public Right-of-Ways caused by its employees or contractors that creates an unsafe condition. 7.2. Pre-Determined Road Repair Fee, and the County in lieu of analysis of a "Reassessment Report" have agreed upon a one-time payment from to the County to he used for improvement of the Roadways and Public, Right-of-Ways used by hereunder, which shall be in the amount of Eigh.t TTundred Thousand Dollars 0800,000). Upon Acceptance of this payment, County waives any additional obligations of with respect to damage of County Roads except as otherwise expressly required under this Agreement. This payment is to be made upon completion of the project and just prior to the issuance of the "Certificate of Completion" from the County Engineer. 7.3. Intersection Remediation. If widens or otherwise modi fies one or more intersections involving one or more of the Roadways, then after all Heavy Deliveries are completed, if requested by the County, shall return the County Right-of- at such intersections to a condition equal to or better than the condition existing prior to the start of Project construction. 7.4. Certificate of Completion. Upon completion of responsibilities under this Section 7, including the payment set forth in Section 7.2 above, the County Engineer will issue a "Certificate of Completion" that documents that obligations under Section 7 of this Agreement shall be deemed to have been satisfied. 8. REPAIRS DURING CONSTRUCTION 8.1. During construction, shall perform temporary repairs to Roadways (e.g. fill potholes) to address damage to Roadways caused by Project construction activities, provided such damage impairs the safety of the involved Roadway and the County provides a written notice (by email or other written method) to of such damage, The County hereby agrees that an acceptable method to repair holes in the Roadway is to fill potholes with gravel or cold patch. 9. PROJECT OPERATION, MAINTENANCE, AND DECOMISSIONING 6 9.1. In the event operating, maintaining or decommissioning of the Project requires to conduct Heavy Deliveries on the Roadways, prior to conducting such Heavy Deliveries shall inspect the affected Roadways and Appurtenant Structures and produce to the County an inspection report documenting the condition of the Roadways. In the event of subsequent damage caused by the Heavy Deliveries, shall take steps necessary to return the Roadways and Appurtenant Structures to a condition equal to or better than that which existed prior to the subject Heavy Deliveries taking place. 10. CONTRACTORS may contract with third party contractors in connection with rights or obligations hereunder. 11. FINANCIAL OBLICATIONS OF 11.1. County engineer. agrees to reimburse the County for all costs, fees and reasonable expenses, of a qualified consultant to serve as the County Engineer for purposes of this Agreement, up to Ten Thousand Dollars ($10,000.00), in the aggregate, during the course of this Agreement. Any reimbursement to the County over such amount, if needed, shall be subject to negotiation between the Parties. The County agrees that LaBella shall he hired as a consultant and shall serve as County Engineer. LABella may be replaced by the County at the County's discretion and upon written consent. 11.2. Construction Security. hereby agrees, in order to assure performance of any of its obligations pursuant to this Agreement and pursuant to Town of Local Law No.1 of 2009, to post security for its obligation in the form of a bond, letter of credit, or other equivalent financial security instrument (the "Construction Security"). The Construction Security shall be for the benefit of the County of and shall be in the amount of Upon the County's Engineer's issuance of the Certificate of Completion, the Construction Security shall be released to 12. CHANGES TO SCHEDULE I ROADWAYS 12.1. The Parties acknowledge and agree that by mutual consent additional Roadways may he added or removed in the future to the Roadways covered by this Agreement. 13. INDEMNIFICATION AND INSURANCE 13.1. Black Oak shall indemnify and hold harmless the County, its officers, employees and agents from and against all losses and claims, demands, payments, suits, actions, recoveries and judgments of every nature and description (including rcasonablo attorney, accountant, and expert fees) resulting from bodily injury, property damage or personal injury, brought or recovered by any act or omission of its agents or _7 employees, in the use of the Roadways or Public Right-of-Ways within the County or any portions thereof, or of any failure 'to comply with this Agreement, except to the extent caused by the negligence of the County. Conduct by employees, consultants, officials, or agents employed or otherwise retained by the County shall not be construed to be conduct of or its agents. The provisions of this paragraph shall survive the termination of this Agreement. 112. 'The County shall indemnify and hold harmless Black Oak, its officers, employees and agents from and against all losses and claims, demands, payments, suits, actions, recoveries and judgments of every nature and description (including reasonable attorney, accountant, and expert fees) resulting from bodily injury, property damage or personal injury, brought or recovered by any act or omission of the County, its agents or employees, in the use of the Roadways or Public Right-of-Ways within the County or any portions thereof, or of any failure to comply with this Agreement, except to the extent caused by the negligence of Conduct by employees, consultants, officials, or agents employed or otherwise retained by shall not be construed to he conduct of the County or its agents. The provisions of this paragraph shall survive the termination of this Agreement. 14. DEFAULT AND EVENTS OF DEFAULT 14.1. Except as set forth in Section.02, the failure of either party to perform or observe any material covenant of this Agreement shall constitute an "Event of Default", if such default is not cured within sixty (60) days of rcceipl of notice of such default to the defaulting party (or such longer period as is necessary provided such cure is begun within such 60 day period and is thereafter diligently pursued). 14.2. Each of the following events shall also constitute an Event of Default if such Event of Defaiilt is not cured within sixty (60) dr-vs or rereipt of written notice of such event of default to the defaulting party (or such longer period as is necessary provided such cure is begun within such 60 day period and is thereafter diligently pursued): (i) the failure of to make any payment hereunder within thirty (30) days after receipt of written 'Notice from the County; and (ii) the failure of to maintain Construction Security as required by Section 11.2 hereof. 15. REMEDIES 15.1. Upon the occurrence and during the continuance of any Event of Default by the County may, at its option, in addition to any other remedies the County may have, access the Construction Security to cure default. No remedy is intended to be exclusive, but each is cumulative. 15.2. Notwithstanding any other provision of this Agreement, in no event shall either party be liable for special, consequential, exemplary or punitive damages as a result of the performance or non-performance of its obligations under this Agreement. 8 16. TERM The Term of this Agreement shall begin the date first above written and continue for so long as the Project is located in the County. 17. TERMINATION 'this Agreement may be terminated by the County upon thirty (30) days written Notice to upon the occurrence of any of the following events: a. The filing of a petition in bankruptcy by or by creditors of or the appointment of a receiver of all or substantially all of the assets of b. no longer conducts business in the County; and c. Pursuant to Section 15.1. 18. NOTICES All Notices permitted or required hereunder shall be in writing and shall be transmitted via certified United States Mail, return receipt requested, or by private same day or overnight delivery service and shall be addressed as follows or to such different addresses as the parties may from time-to-time designate: Notices to the County: County Highway Department Notices to Energy LL C may, without the consent of the County, (i) assign this Agreement to any purchaser of the Project or affiliate of provided such successor assumes and agrees to be bound by this Agreement, and (ii) pledge, mortgage, grant a security interest in and collaterally assign this Agreement to any persons or entities, including a collateral agent acting on behalf of lenders providing financing for the Project (collectively, the "Financing Parties"). The County shall cooperate with its affiliates, any 9 successor, and any Financing Parties from time to time. The County agrees to modify or reform this Agreement to facilitate financing of the Project, provided, however, that any such modification or reformation shall not result in the avoidance of or its successor of obligations hereunder. 20. MISCELLANEAM TS 20.1. If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or unenforceable, the remainder of this Agreement, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Agreement; and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 20.2. This Agreement shall be construed in accordance with the laws of the State of New York without regard to the conflict at laws principles thereof 203. The article headings in this Agreement are for convenience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation uFthis Agreement or any part hereof. 20.4. Nothing in this Agreement shall be construed to make the parties hereto partners or joint ventures or render either of said parties liable For the debts or obligations of the other. 20.5. To the extent set forth herein, this Agreement shall be binding upon and inure to the benefit of the successors and assigns or the parties hereto. 20.6. This A‘greement may be I" 411 1 411 11 VLi .J yr. mrxri ; n f n fatr‘r1 any time by 2 fleclarPtinn in writing, executed and acknowledged by the parties hereto. 20.7. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same el.Tect as if the signatures thereto and hereto were upon the same instrument. 20.8. The Agreement may be recorded in the appropriate real property records. shall be responsible for all recording fees associated therewith. 20.9. Any failure, of a party to perform its obligations under this Agreement shall not be a breach of this Agreement to the extent such failure results from Acts or God (including fires, hurricanes, earthquakes, tornadoes, flooding, snow storms, severe thunderstorms or similar natural occurrences), war, riots and civil insurrection, outbreaks of hostilities, states of emergency, governmental action, delay or inaction that did not result From wrongdoing ley the party involved in such governmental action, supply shortages (including power, gasoline and other fuel shortages), omissions of third parties when such omissions did not occur due to action or inaction of the third party failing to perform, labor disputes, shortages, strikes or walkouts or transportation delays, or similar occurrences beyond the party's reasonable control. 20.10. The parties each agree to execute and deliver such additional instruments and documents, not creating any obligations or imposing any expenses additional to those otherwise created or imposed by this Agreement, as either party may reasonably request from time to time at or after the execution of this Agreement in furtherance of the express provisions of this Agreement. 20.11. This Road Use Agreement and the Host Community Agreement are dovetailed and interrelated and function in conjunction with each other and one cannot be entered into without the other. Each agreement is part and parcel of the other and equally enforceable. Additionally, any permit or other approval issued for the project, including any conditions set forth therein, shall be interrelated and function in connection with the Road Use Agreement. Said permit or approval will become part and parcel with the Road Use Agreement. 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