Agreement with Skookumchuck Wind Energy Project, LLC BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF LEWIS COUNTY, WASHINGTON ,I
APPROVING A CROSSING AGREEMENT ) RESOLUTION NO 19- .`15
BETWEEN LEWIS COUNTY AND
SKOOKUMCHUCK WIND ENERGY PROJECT, LLC )
WHEREAS, Skookumchuck Wind Energy Project, LLC is seeking to site, permit, construct and operate a
wind energy generation facility to be located in both Lewis and Thurston Counties, and
WHEREAS, that process is substantially underway, with environmental review completed and many
permits already issued, and
WHEREAS, the proposed project includes power lines that cross the County right of way at Big Hanaford
Road in two locations, and
WHEREAS, the project facilities will be largely outside the county right of way and setbacks and will
cross at an angle impacting the right of way less than a traditional power franchise would, and
WHEREAS, a simpler crossing agreement will protect the public and serve the County and
Skookumchuck Wind Energy Project's purposes, and
WHEREAS, the Board of County Commissioners has reviewed the proposed crossing agreement and is
satisfied that its provisions are in the public's best interests,
NOW THEREFORE, BE IT RESOLVED that the Board of County Commissioners approves the Crossing
Agreement with Skookumchuck Wind Energy Project, LLC
DONE IN OPEN SESSION THIS (2I- ^DAY OF I , 2019.
APPROVED AS TO FORM BOAR I •F COUNTY COMMIS. ONERS
Jo athan M-y- Pros- . ing Attorney LE A S COUNTY, WA I v ON,
r/ .Civi�iep�tty Pr. - r•t At Wy Rob . ackso C it
ATTEST Gary Stamp r, a Chair
•••••• e■// -
Rieva Lester, Clerk of the Board •.y1S;ouN7rtkq. Edna J Fund,Commi/oner
•
o a•
: �� SINCE
: 1� •1845 0� 1z•
••. rrsIs';•
LEWIS COUNTY
and
SKOOKUMCHUCK WIND ENERGY PROJECT, LLC
CROSSING AGREEMENT
1 This Crossing Agreement("Agreement")effective , 2019 sets forth the terms and
conditions agreed on between Lewis County ("COUNTY") and Skookumchuck Wind
Energy Project, LLC ("LLC") to allow the LLC's power lines to cross over COUNTY's right
of way in the two locations and as shown on Exhibit "A" and Exhibit"A-1"
2 This Agreement is acceptable to COUNTY because LLC's facilities will cross COUNTY's
right of way in the two locations and as shown on Exhibit"A"and Exhibit"A-1" If any of these
conditions were different, the COUNTY's conditions for accepting this Agreement would
materially change
3 Construction of the LLC's overhead power lines crossing over the COUNTY right of way at
the two locations shown on Exhibit "A-1" shall be in accordance with the crossing design
attached hereto as Exhibit "A" No material design or construction changes shall be made
unless authorized in writing by COUNTY The parties acknowledge and agree that the so-
called "line sag" may vary over the course of the year based on weather and line usage
4 All work performed by LLC hereunder shall be
(i) Completed to COUNTY's reasonable satisfaction in accordance with Exhibit
"A" and
(ii) Pursuant to industry-accepted crossing techniques and procedures and the
requirements of this Agreement.
5 LLC must notify the COUNTY in the event of any abnormal condition due to or resulting from
LLC activity at the crossing work site LLC shall also notify COUNTY when it commences
work at the job site, before any field work is begun, and prior to demobilizing from the site
after all work has been completed and the construction areas have been restored
6 At least five (5) business days prior to the commencement of construction activities in the
vicinity of the two crossing locations shown on Exhibit"A-1,"LLC shall notify the COUNTY so
that a designated COUNTY representative may be present to witness such activities, if
desired COUNTY also may choose to inspect the work during installation of the crossings
or anytime thereafter as it sees appropriate for purposes of this Agreement upon at least
twenty-four (24) hours' notice LLC will accommodate COUNTY representatives in the
inspection of all work performed COUNTY representatives shall not interfere with LLC's
work associated with this Agreement
7 All costs incurred by LLC in connection with the activities described herein shall be borne by
LLC, including reasonable costs incurred by COUNTY for all inspections performed to ensure
Crossing Agreement
Skookumchuck Wind Energy Project,LLC&
Lewis County
39362931
compliance with the terms and conditions set forth herein Notwithstanding the foregoing to
the contrary, after the initial installation of the overhead power lines, COUNTY shall have the
right to be reimbursed for generally applicable inspection fees for only one (1) routine
inspection per year COUNTY may inspect and be reimbursed for additional inspection(s)
after LLC performs maintenance as set forth in Section 8 herein or if an emergency or
apparent or identified unsafe condition exists
8 LLC shall be responsible for all maintenance of the power lines, including repairs, as
necessary and as may be reasonably required by COUNTY to maintain the approved design
height of the overhead power lines shown on Exhibit "A" and/or the attachment of the
overhead power lines to LLC's transmission line poles If, in COUNTY's opinion, any repairs
to the power lines may be deemed necessary to maintain the approved design height of the
overhead power lines shown on Exhibit "A" and/or the attachment of the overhead power
lines to LLC's transmission line poles LLC shall make such repairs in a manner acceptable
to COUNTY at the sole expense of LLC provided that such repairs do not violate other
requirements of law COUNTY shall approve of industry-accepted construction methods and
safety policies for such repairs unless specific local conditions render such methods or safety
policies unsafe LLC shall be responsible for appropriate traffic control during initial
installation and subsequent maintenance If LLC fails to promptly maintain or repair its
facilities so that such facilities comply with Exhibit "A", sixty (60) days after written notice
from COUNTY, COUNTY may perform (or have performed) the necessary maintenance or
repairs at LLC's cost with qualified personnel in accordance with applicable law and industry-
accepted construction methods and safety policies If the event the COUNTY undertakes
such maintenance or repairs at least five (5) business days prior to the commencement of
maintenance or repair activities COUNTY shall notify LLC so that a designated LLC
representative may be present to witness such activities, if desired LLC shall, within sixty
(60)days, pay COUNTY's reasonable, documented costs for such maintenance or repairs
9 COUNTY shall at all times for the duration of this Agreement be provided with LLC's contact
information for purposes of communication between the parties COUNTY and LLC shall
establish a 5-year review schedule in which they exchange updated contact information and
confer about any procedural, informational, or substantive issues arising from this Agreement
or its performance
10 COUNTY will not permit any repositioning or alteration of LLC's infrastructure, facilities,
power lines,or other improvements without LLC's prior written approval Apart from seasonal
"line sag" within the approved design parameters, LLC shall not lower the height of the
overhead power line crossings without COUNTY'S prior written approval Nor shall LLC
reposition or construct any towers at or adjacent to the crossing sites without COUNTY'S
prior written approval
The current height of the surface of the road at the crossings is agreed to be as follows, using
coordinate system United States/State Plane 1983, NAD 1983(Conus), GEOID12B(Conus),
Washington South 4602
Crossing Str 4-5 Crossing Str 7- 8
Northing 528059 68 Northing 527516 31
Easting 1045101 31 Easting 1046229 92
Elevation 226.66 Elevation 239.42
Crossing Agreement 3
Skookumchuck Wind Energy Project, LLC&
Lewis County
39362931
If at any time in the future, COUNTY permits the surface of the road to be higher than it exists
currently and, as a result thereof, the distance between the surface of the road and the
overhead power lines are reduced to less than the minimum required distance mandated by
then current version of the National Electrical Code (or its nationally recognized successor),
then COUNTY shall be responsible for excavating the roadbed and reconstructing the road
and related improvements thereon so that the distance between the overhead power lines
(which shall not be required to be relocated or raised) and the surface of the road, as
modified, complies with the then current version of the National Electrical Code, which work
shall be performed with qualified personnel in accordance with applicable law and industry-
accepted construction methods and safety policies, at COUNTYs' sole cost and expense,
subject to the reimbursement obligations of LLC set forth in the next sentence If such
roadway work is required as a consequence of the surface of the road being more than 24
inches higher than it exists currently(as designated above), then within thirty (30)days after
the completion of such roadwork and the delivery by COUNTY to LLC of written evidence of
the actual cost and payment of such work and a detailed invoice therefor, LLC shall reimburse
COUNTY for the reasonable, documented cost of such work, up to a maximum amount, in
the aggregate over the term of this Agreement, of $100,000.00 The foregoing limitation on
reimbursement obligations shall not be construed to limit the payment or reimbursement
obligations of LLC pursuant to Section 8 above relating to LLC's obligation to maintain the
approved design height of the overhead power lines shown on Exhibit "A" and/or the
attachment of the overhead power lines to LLC's transmission line poles
11 LLC shall submit a traffic control plan to COUNTY for review by the County Engineer a
minimum of five (5) working day prior to implementing any lane or shoulder closures within
the COUNTY right-of-way
12 LLC will secure all necessary permits and approvals and, along with its employees,
representatives, agents, contractors and subcontractors, shall comply with all applicable
laws, rules, ordinances, decrees and regulations in connection with the performance of the
activities contemplated hereunder
13 LLC shall defend, indemnify,and hold harmless COUNTY, its appointed and elected officials,
agents, insurers, officers, and employees (the "County parties") from and against any loss,
damage, claim, suit, liability,judgment and expense (including attorney's fees and the costs
of litigation), and any fines, penalties and assessments arising out of injury, or death of
persons (including that of third parties, County parties, LLC parties, and/or its or their
contractors or subcontractors), or damage to or loss of any property of County or LLC parties
or harm to the environment, caused by, arising out of, or resulting from, the activities of LLC
or its contractors or subcontractors contemplated under this Agreement, regardless of cause
and even if as a result of the concurrent negligence, strict liability negligence per se, or other
fault of County parties, including any premises defect in any premises owned or operated by
County parties (whether or not pre-existing this Agreement), the violation of any municipal,
state or federal statute, or the seaworthiness of any vessel or the airworthiness of any aircraft,
but excepting any injury, death,damages or harm to the extent caused by the sole negligence
or willful misconduct of County parties This indemnification obligation shall not be limited in
any way by the Washington State Industrial Insurance Act, Title 51 RCW, or by application
of any other workmen's compensation act, disability benefit act or other employee benefit
act, and LLC hereby expressly waives any immunity afforded by such acts The foregoing
indemnification obligations are a material inducement to County to enter into this Agreement
and have been mutually negotiated by the parties
Crossing Agreement 4
Skookumchuck Wind Energy Project, LLC&
Lewis County
39362931
14 During the term of this Agreement, LLC shall carry adequate insurance as set forth in Exhibit
"B" in order to support its indemnification obligations hereunder Failure to secure such
insurance coverage shall permit COUNTY to terminate this agreement on 30 days' notice,
but unless and until COUNTY does so, failure to secure such coverage shall in no way act
to relieve LLC from its obligations hereunder Notwithstanding anything herein to the
contrary, indemnification obligations under this Agreement shall not be limited in amount or
scope to coverage provided by insurance that is required of hereunder
15 LLC will furnish COUNTY with an electronic set and a hard copy set of"as-built" and "profile"
drawings within 60 days after completion of the crossing contemplated herein Both sets
should be mailed or electronically transmitted to
Attention: Martin Roy
Public Works Real Estate Services Manager
Lewis County Public Works
2025 NE Kresky Avenue
Chehalis, WA 98532
E-Mail martin.roy @jewiscountywa.gov
16 If any provision of this Agreement is adjudicated or otherwise found to be against public
policy, void, or otherwise unenforceable, then such provision shall be deleted or modified, in
keeping with the express intent of the parties hereto as necessary to render all the remainder
of this Agreement, valid and enforceable All such deletions or modifications shall be the
minimum required to effect the foregoing
17 This Agreement may be assigned to a subsequent owner of LLC's wind power project,
provided that LLC provides no less than thirty (30) days' notice to COUNTY Except as
provided in the following sentence, assignments shall require COUNTY's prior written
consent,which consent shall not be unreasonably withheld A transfer of controlling interests
in LLC, or its successor under this Agreement, shall be deemed an assignment of this
Agreement but shall not require COUNTY's consent
18 No waiver by COUNTY of any one or more defaults by LLC in the performance of any
provision of this Agreement shall operate or be construed as a waiver of any future default
or defaults, whether of a like or different character
19. Disputes concerning this Agreement shall be resolved as follows COUNTY or LLC shall
give written notice to the other party specifying in detail any alleged breach or default The
parties shall negotiate in good faith concerning the alleged breach or default for no less than
sixty (60) days, whereupon the parties shall engage in mediation if either party so requests
If, after one hundred twenty(120)days from the notice, no agreement is reached concerning
the alleged breach or default, the parties shall submit to binding arbitration in Seattle,
Washington pursuant to the then-effective Commercial Arbitration Rules of the American
Arbitration Association or successor thereof (the "AAA") All issues shall be heard and
determined by one neutral arbitrator The arbitrator shall have experience with disputes
similar to the dispute then at issue and, if possible, prior judicial experience, and shall be
selected pursuant to the AAA "Arbitrator Select List and Appointment" process If the AAA
"Arbitrator Select: List and Appointment" process is unavailable, the parties shall initiate any
successor process offered by the AAA or a similar process offered by any other nationally
recognized alternative dispute resolution organization Notwithstanding the foregoing, either
party may request that all issues be heard and determined by three (3)neutral arbitrators In
Crossing Agreement 5
Skookumchuck Wind Energy Project, LLC&
Lewis County
39362931
that event, each party shall select an arbitrator with experience with disputes similar to the
dispute then at issue, and the two arbitrators shall select a third arbitrator, who shall have
prior judicial experience If the arbitrators cannot agree, the third arbitrator shall be selected
pursuant to the AAA "Arbitrator Select. List and Appointment" process The arbitrator(s)
under this Section 19 shall be selected within fourteen (14) days after submission to binding
arbitration
20 This Agreement shall be governed by and construed in accordance with the laws of the State
of Washington, except with regard to any conflicts-of-law provisions that might permit or direct
the application of the law of another jurisdiction
21 The duration of this Agreement shall be for thirty (30) years from the earlier of (a) the date
that commercial operations of LLC's electric energy generation project commences or (b)
October 31, 2020 The parties shall negotiate in good faith any extensions or renewals of this
Agreement Notwithstanding anything in this Section, Sections 13, 16, and 20 shall survive
this Agreement and persist indefinitely
22 In the unlikely event that any portion of right of way subject to this Agreement is annexed or
incorporated into any city or town, or attributed to a new county under Art XI, §3 of the
Washington Constitution, and an authority having jurisdiction determines that this crossing
agreement must terminate with respect to such annexed portion of right of way it shall
continue as provided in this Agreement with respect to other right(s) of way not so
incorporated, annexed, or attributed
23 Following the expiration or termination of this Agreement, LLC shall within 30 days begin
removal of any infrastructure facilities power lines, or other improvements crossing over
COUNTY rights of way, and shall complete such removal within 60 days thereafter Such
removal shall be at LLC's sole expense and shall leave any rights of way or property in as
good or better condition than prior to removal In the event that LLC does not begin or
complete such removal as required herein, COUNTY may cause such removal at LLC's sole
expense
24 This Agreement may be executed in duplicate copies with original signatures from one or
more parties If so executed, each signed original shall be treated as if signed by all parties
Exhibit "A" Crossing Design(s)
Exhibit "A-1" Crossing Locations
Exhibit"B" Insurance Requirements
[Signatures appear on the following page(s)]
Crossing Agreement 6
Skookumchuck Wind Energy Project,LLC&
Lewis County
39362931
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective, duly uthorizzd representatives as of the day and year first above written
Date E) Z ZT( 5r Date (J c ( £/7
SKOOKUMCHUCK WIND ENERGY BOA D OF COUNTY
PROJECT, LLC C• MISSIONERS /
/ 'WIS CO. TY ,'AS.INGTON
By SPR DEVEL iitENT HOLDINGS, LL
�L�a l I:
Title. CLASS B MA AGER Roe-rt . Jac *n, Chair
AB j,
APPROVED AS TO FORM G. St.mper, is• Chair.Lis JONATHAN MEYER, PROS CUT.ING ATT'Y 7)
By / ' ! :_il, k '' Edna J Fund, CQ missioner
Civi Deputy II:te■
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ATTEST. /_
sd®e* l"-1L---
4414 0so°�Tx W`1,'e Rieva Lester, Clerk of the Board
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EXHIBIT A
Crossing Designs
[To be attached]
Crossing Agreement
Skookumchuck Wind Energy Project,LLC&
Lewis County
39362931
EXHIBIT A
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EXHIBIT A-1
Crossing Locations
[To be attached]
Crossing Agreement
Skookumchuck Wind Energy Project,LLC&
Lewis County
39362931
EXHIBIT A- 1
This drawing is the property of RES America Developments Inc and no
reproduction may be made in whole or in part without permission
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Big Hanaford Road Crossings, Poles 4-5 MAP FRAME 122°52'34"W 46°45'26"N
Skookumchuck Wind, Lew Co., WA 122°52'28"W 46°45'26"N
PARCEL 023432003003, 023432004000 122°52'28"W 46°45'22"N
MTRS WM 15N 02W 25 122°52'34"W 46°4522"N
COORDSYS NAD83 2011 SP WAS =
Existing OHP RES Proposed Features EDITOR MLamendola
\ ' Paul Substation 0 RES T-Line Poles EDIT DATE 8!2112019
Big Hanaford ROW RES T-Line Wires Renewable Energy Systems
11101 W 120th Ave. Suite 400
– – -Pavement Edge =RES T-Line Structures Broomfield, CO, 80021 re s
—RES T-Line ROW Phone (303)429-4200
Fax (303)429-4299
power for good
This drawing is the property of RES America Developments Inc. and no
reproduction may be made in whole or in part without permission.
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Skookumchuck Wind, Lewis Co , WA
122°52'10"W 4s 23 N
PARCEL 023436000000 122°52'10"W 46°45'12"N
MTRS WM 15N 02W 25 122°52'26"W 46°4512"N
COORDSYS NAD83 2011 SP WA S =
Existing OHP RES Proposed Features EDITOR MLamendola
\ Paul Substation 0 RES T Line Poles EDIT DATE 8/2112019
Big Hanaford ROW RES T Line Wires Renewable Energy Systems
11101 W 120th Ave , Suite 400
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— — -Pavement Edge 2ES T-Line Structures Broomfield CO 80021 re s
RES T-Line ROW Phone (303)429-4200
Fax (303)429-4299
power for good
EXHIBIT B
Insurance Requirements
A LLC shall secure and maintain the following insurance policies
1 Commercial General Liability, or equivalent, Insurance which will cover bodily injury,
property damage, and any other exposure which can be reasonably identified as
potentially arising from LLC's activities within the rights of way The limit of liability
shall not be less than one million dollars ($1,000,000) each occurrence Such
insurance shall be structured on an occurrence, not a claims-made, basis The
County, its elected and appointed officers, officials, employees, agents, and
representatives shall be named as additional insureds with respect to activities
occurring within its rights of way Coverage shall be comprehensive with respect
to LLC's activities within the rights-of way and shall include at least completed
operations, electrocutions, blackouts, explosions, collapse, and underground
hazards Any insurance or self-insurance maintained by the County, its officers,
officials, boards, commissions, employees and agents shall be in excess of the
LLC's insurance and shall not contnbute to it
2 Business Automobile Liability Insurance for owned, non-owned and hired vehicles
with limits of not less than one million dollars($1,000,000) per accident
3 Workers' Compensation insurance as required by Title 51 RCW and Employer's
Liability Coverage with a limit of not less than one million dollars($1,000,000)
4 Excess Liability insurance covering employer's liability, commercial general
liability, and business auto liability, with a policy limit of ten million dollars
($10,000,000) for bodily injury and property damage per occurrence and in the
aggregate Total Liability limits may be satisfied by any combination of self-insured
retention, primary or excess liability policies Such insurance shall be structured
on an occurrence, not a claims-made, basis The County, its elected and appointed
officers, officials, employees, agents, and representatives shall be named as
additional insureds with respect to activities occurring within its rights of way
Coverage shall be comprehensive with respect to LLC's activities within the rights-
of way and shall include at least completed operations, electrocutions, blackouts,
explosions, collapse, and underground hazards Any insurance or self-insurance
maintained by the County, its officers, officials, boards, commissions, employees
and agents shall be in excess of the LLC's insurance and shall not contribute to it
B The insurance policies required herein shall be maintained at all times by LLC while
the powerlines remain in place LLC shall notify the County at least forty-five (45) days
before cancellation LLC will be obligated to replace or renew the canceled or expiring
policy and show proof in the form of a certificate of insurance, at least twenty(20) days
before the expiration or cancellation of the existing policy(ies)
Crossing Agreement
Skookumchuck Wind Energy Project,LLC&
Lewis County
39362931
C LLC shall furnish the County with properly executed certificates of insurance naming
Lewis County as a primary, non-contributory, additional insured, or a signed policy
endorsement that clearly indicates the same LLC or its agent will provide a copy of
any and all insurance policies specified herein to the County upon request
D The insurance limits mandated for any insurance coverage required herein are not
intended to be an indication of limits of exposure nor are they limitations on liability or
indemnification
E Failure to procure or maintain the insurance required herein, except pursuant to a self-
insurance program permitted under Section G herein, shall authorize Lewis County to
terminate this Agreement as set forth in Section 14 and/or to procure or renew
insurance that equivalently protects the County's interests with a right of reimbursement
from LLC for all premiums paid in connection therewith
F Material to be sent to the County referenced herein shall be sent as provided in Section
15 of this Agreement
G Notwithstanding any of the foregoing to the contrary, the County agrees that if Southern
Power Company("Southern")or its affiliates acquire a controlling ownership interest in
LLC or otherwise become the successor grantee under this Agreement, the County
agrees that LLC (or its successor) may self-insure with respect to the insurance
requirements described above in accordance with Southern's insurance program as
the same may be modified from time to time in accordance with then-current
commercially reasonable self-insurance standards and practices Within a
reasonable time after the County's written request therefor, LLC (or its successor) shall
deliver to the County a then-current summary of Southern's self-insurance program If
LLC self-insures under this section and then ceases to do so, within 30 days it shall
notify the County, obtain coverage as required herein, and provide proof as required
herein.
Crossing Agreement 3
Skookumchuck Wind Energy Project, LLC&
Lewis County
39362931
S 11101 W 120th Avenue,Suite 400
Broomfield,CO 80021,United States
it- 303 439 4200
c info.US @res-group.com
(SD www.res-group.com
DELEGATION OF AUTHORITY LETTER
To whom it may concern
By means of this letter, I, Chris Howson, a RES Manager of SPR Development Holdings, LLC
(the "Company") delegate the authority given to me pursuant to the Company's Amended
and Restated Limited Liability Company Operating Agreement executed on December 21,
2016 to Sean Bell for purposes strictly related to the signing of real estate documents
related to the Skookumchuck Wind Energy Project in the state of Washington,for
Skookumchuck Wind Energy Project, LLC, based on the following terms and conditions.
1 Sean Bell,Senior Development Manager, is hereby delegated the authority to carry
out, undertake,or perform in the name and on behalf of Skookumchuck Wind
Energy Project, LLC,the execution of real estate documents related to the
Skookumchuck Wind Energy Project in the state of Washington.
2 This delegation is effective immediately and shall run for a term of six(6) months
3 This delegation is subject to the terms and conditions hereof, and conditions and
limitations in the bylaws of the Company
Please contact me should you require further information
Respectfully,
Chris Howson, RES Manager
Date. $/2-211°I
Acknowledged a gret'd
6
11
Sean Bell,Sr Development Manager
Date. 4Z(.0/
BOCC AGENDA ITEM SUMMARY
Resolution. BOCC Meeting Date' Aug 26, 2019
Suggested Wording for Agenda Item Agenda Type Consent
A Crossing Agreement Between Lewis County and Skookumchuck Wind Energy Project, LLC
Contact Eric Eisenberg Phone 3607401241
Department* Prosecutor
Action Needed' Approve Resolution
Description
Skookumchuck Wind Energy Project, LLC is seeking to site, permit, construct and operate a wind energy
generation facility to be located in both Lewis and Thurston Counties The process is substantially underway,
with environmental review completed and many permits already issued The project includes powerlmes that
cross the County right of way at Big Hanaford Road in two locations
The Board of County Commissioners will consider the adoption of a crossing agreement with Skookumchuck
Wind Energy Project, LLC that balances the project's interest in crossing the nght of way with the interests of
the County and the public
If passed, this resolution will approve the crossing agreement
Approvals:
User Group Status
BOCC Pendmg
Prosecutor Pending
Additional Copies
Lee Napier