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HomeMy WebLinkAboutC03-085 Berry Creek LLC• • CU3-SS-10 AGREEMENT ESTABLISHING THE OBLIGATIONS OF BERRY CREEK LIlVIITED LIABILITY COMPANY REGARDING THE INSTALLATION OF UNDERGROUND ELECTRIC FACILITIES AT TIt,ACT D, BERRY CREEK/MII.LER RANCH PLANNED iTNIT DEVELOPMENT RECITALS THIS AGREEMENT is made and entered into this y of 2003, by Eagle County, by and through its Board of County Commissioners (Count}~~ and Berry Creek Limited Liability Company, a Colorado L.L.C. (`Berry Creek, LLC'. Collectively these entities are also referred to as the "Parties." Whereas, County is the owner of real property commonly known as Tract D, Berry Creek/Miller Ranch Planned Unit Development ("Housing Site"). Whereas, Berry Creek, LLC has contracted with County to act as the developer of the Housing Site in a development agreement dated March 12, 2002 between Berry Creek, LLC and County. Whereas, as part of said development Berry Creek, LLC, through its Managing Member, ASW Realty Partners, LLC, has requested that Holy Cross Energy provide underground electric facilities at the Housing Site. Berry Creek, LLC has agreed to pay for such installation as set forth in the agreement with Holy Cross dated February 4, 2003 and attached hereto as Exhibit «A ,~ Whereas, Holy Cross Energy is requiring County, as owner of the Housing Site, to execute a Trench, Conduit, and Vault Agreement in a form similar to the attached Exhibit `B." Whereas, said Trench, Conduit, and Vault Agreement requires County to provide all excavation, conduit and vault installation, backfill, compaction and cleanup needed to install the underground electric facilities. Whereas, County and Berry Creek, LLC acknowledge and agree that the work and financial responsibilities set forth in the Trench, Conduit, and Vault Agreement should be assumed and born by Berry Creek, LLC as developer of the Housing Site. AGREEMENT Now, Therefore, in consideration of the covenants and mutual agreements contained herein, and for other good and valuable consideration, the Parties hereto agree as follows: 1. Berry Creek, LLC shall perform all work and responsibilities, including financial responsibilities, required of County as set forth in that Agreement between County and Holy Cross Energy entitled Trench, Conduit, and Vault Agreement in a form similar to the attached Exhibit `B." • • 2. Berry Creek, LLC. shall indemnify and save harmless County, its officers, agents and employees from any and all claims, damages, suits, costs, expense including reasonable attorney's fees, liability, actions, penalties or proceedings of any kind or nature whatsoever, or by anyone whomsoever, in any way resulting from, or arising out of, directly or indirectly, Berry Creek, LLC's performance or nonperformance of County's responsibilities set forth in the Trench, Conduit, and Vault Agreement. 3. The Parties agree that, except as expressly stated herein, all terms and provisions of other development agreements between County and Berry Creek, LLC pertaining to the Housing Site shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. 4. The Parties agree that this Agreement maybe enforced in law or in equity for specific performance, injunctive, or other appropriate relief, including damages, as maybe available according to the laws and statutes of the State of Colorado. It is specifically understood that by executing this Agreement each Party commits itself to perform pursuant to these terms contained herein. 5. This Agreement shall be governed and construed in accordance with the State of Colorado. Venue for any action arising out~f any dispute hereunder shall be in the appropriate court in the County of Eagle, State of Colorado. 6. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 7. This Agreement maybe amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by the Parties hereto. This Agreement represents the full and complete understanding of Parties, and supersedes any prior agreements, discussions, negotiations, representations or understandings of Parties with respect to the subject matter contained herein. /!REMAINDER OF PAGE INTENTIONALLY LEFT BLANK// • • IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed and be effective as of the day and year first above written. BERRY CREEK, LIlVIITED LIABILITY COMPANY By: -- Mark Ross ATTEST: BY: Secretary BOARD OF COUNTY COMNIISSIONER FOR ATTEST: BY: EAGLE COUNTY, STATE OF COLORADO GROSS F ~ • 1 ~' -- tiF o~ .~ ~. ~ rr 1 _ ~~~;._ qf, '~~0 ~ SSO~ February 4, 2003 Mr. Rick Stephenson A.S.W. Realty P.O. Box 1764 Gypsum, CO 81637 Re: Berry Creek 5`~ Filing Dear Rick: We have completed a design and cost estimate for providing electric service to the above referenced project. Our facilities will be installed as shown on the attached sketch. Holy Cross Energy, a Colorado corporation, estimates that the cost of construction will be as follows: Total estimated cost of underground construction $245,900.00 Construction deposit consisting of equivalent overhead credits (refundable) $166,500.00 Contribution in aid of construction (nonrecoverable) 79.400.00 Total payment required before starting work on the project $245,900.00 The above figures are only estimates. After the job has been completed, the actual cost of construction will be determined. Your contribution and deposit will be adjusted to reflect the actual cost by making a refund or further assessment. Execution of this document constitutes agreement to pay any further assessment in a timely manner. Adjusted construction deposits are available for refund over a ten year period as specified by Holy Cross Energy's Line Extension Policy. Our facilities must be installed on an easement. Please forward me a copy of the final recorded plat showing all utility easements. Should any additional easements be required, Holy Cross Energy will forward our standard documents to you for execution. Execution of this construction agreement is your agreement to have any additional easements executed in a timely manner. The following conditions are hereby noted: The enclosed °Application For Electric Service° form must be completed, signed, and returned. Lot corners or other locations will be provided by the developer as needed to ensure that our facilities are Installed as shown on the attached sketch. Holy Cross Energy has implemented a policy which requires that project owners provide all excavation, backflll, compaction and cleanup needed for installation of the underground power system extension to serve their new development. The owner must also set all vaults and install all conduits as specified by Holy Cross Energy's design for the project and the enclosed construction specifications. Holy Cross Energy will supply all material which can be picked up by the owner at the appropriate storage yard. The cost of this material is included in the job cost estimate. The attached Trench Agreement must be properly executed and returned prior to the start of excavation. 4. No excavation will be undertaken within five (5) feet of existing underground power lines except under the on site supervision of a qualified Holy Cross Energy employee. 5. The route of our proposed underground power line extension must be at final grade and free of obstructions before power line construction is started. ' 6. Ail water and sewer lines, including stubs to all lots, must be in place and clearly marked, and all other excavations in conflict with our proposed facilities must be backfilled before power line construction is started. Telephone and cable television facilities will not be installed until power line construction has been completed. EXHIBIT ~~ ~ 3799 HIGHWAY 82 • P.O. DRAWER 2150 GLENWOOD SPRINGS, COLORADO 81602 (970) 945-5491 • FAX (970) 945-4081 ~ ~ Rick Stephenson February 4, 2003 Page Two 7. It shall be the Owner's responsibility to insure that splice vaults, switchgear vaults and transformer vaults installed hereunder on said real property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non- opening sides and backs of said transformers and switchgear. Owner hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations which may occur as soon as notified by Holy Cross. Said corrections will be made at the sole cost and expense of Owner. There is no provision in our estimate for revegetation. Revegetation, if required, must be provided by parties other than Holy Cross Energy. Secondary voltage available will be 120/240, single-phase. 10. Secondary voltage available to all individual lots will be 120/240, single phase. 11. Secondary voltage available to the multi-family tracts (Parcel 10) will be 208Y/120, three-phase. 12. Secondary voltage available will be 208Y/120, three-phase. 13. Secondary facilities shall be installed in accordance with National Electrical Code and Holy Cross Energy specifications. All meter locations must be approved. Any service over 200 amps or 240 volts must have prior written approval from Holy Cross Energy. 14. Secondary voltage will be made available at apad-mounted transformer located within a reasonable distance of each lot. it will be the lot owner's responsibility to extend underground secondary entrance conductors from the point of .power usage to the designated transformer. When reaching the designated transformer involves a road crossing, a conduit will be installed during construction of the primary voltage system. It will be the lot owner's responsibility to maintain the conduit(s) associated with his lot. 15. All underground services shall be installed in conduit ahead of the meter. All underground services must be in conduit beneath roads, driveways, and other areas of difficult excavation. 16. All residential services must have an outside disconnect accessible at all times to Holy Cross Energy personnel. 17. The meter housing must be positioned so the meter faces a driveway or road. 18. Low voltage starting will be required on all three-phase motors larger than 25 HP and all single- phase motors larger than 10 HP. 19. Motor protection from phase loss and other voltage problems should be provided. Th1s equipment shall be installed and maintained at the expense of the consumer. 20. It shall be the consumer's responsibility to protect their electric equipment from temporary over voltage or under voltage situations resulting from causes beyond the control of Holy Cross Energy. 21. The above mentioned cost estimate does not include connect fees or meter deposits, if required. Arrangements for paymenr_ of these items and for scheduling the actual meter installation should be made. through the local Holy Cross Energy office. 22. We attempt to complete all projects in a timely manner. However, highest priority is given to maintaining service to our existing consumers. This fact, along with inevitable construction delays, will not allow us to guarantee a project completion date. Rick Stephenson February 4, 2003 Page Three 23. All Holy Cross Energy rules and regulations will be followed. When Holy Cross Energy is in receipt of your check in the amount of $245,900.00, all necessary executed easements, other permits, if required, a completed "Application For Electric Service" form, the executed trench agreement, and the signed original of this letter agreement (below), the Job can be scheduled for construction. Sincerely, HOLY CROSS ENERGY .Or Z ~L.a~1 Steve W. Smith, Engineering Department SWS:vw Enclosure The above terms and conditions are here .agreed t~nd accepted By: Title: ~~ Ate// ~~ ~~/j~~ Date: ~`~'~ W/O#03-17898-50-44:Berry Creek 5`~ Filing/Miller Ranch P.U.D. smith\Stephenson i TRENCH, CONDUIT, AND VAULT AGREEMENT This agreement is made and entered into this day of , 20 , between EAGLE COUNTY, whose mailing address is P.O. Box 850, Eagle, Colorado 81631, hereinafter called "Developer", and Holy Cross Energy, a Colorado corporation whose mailing address is P. O. Drawer 2150, Glenwood Springs, Colorado 81602, hereafter called "Holy Cross". WHEREAS, Holy Cross has been requested by Developer to provide underground electric facilities, hereinafter called "Facilities", to serve a project known as Berry Creek/ 5~' Filing/Miller Ranch P.U.D., hereinafter called "Project"; and, WHEREAS, Developer is required to provide all excavation, conduit and vault installation, backfill, compaction and cleanup needed to construct said requested Facilities; and, WHEREAS, Developer owns real property described as follows: Tract D, Berry Creek/Miller Ranch Planned Unit Development in Section 4, Township 5 South, Range 82 West of the 6~' P.M. as recorded by Reception No. 799649 in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado, hereinafter called "Property", which Property is the real property where the Project is being developed; and, WHEREAS, installation of Facilities to serve the Project may require trenching or other excavation on certain real property adjacent to the Project described as follows: Berry Creek/Miller Ranch P.U.D., Tract E, Section 4, Township 5 South, Range 82 West of the 6~' P.M. as recorded by Reception No. 799649 in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado, hereinafter called "Adjacent Land". NOW, THEREFORE, Developer and Holy Cross agree as follows: 1. Developer shall provide all excavation, conduit and vault installation, backfill, compaction and cleanup necessary for installation of Facilities to serve the Project. Such excavation shall be located as shown on the construction plans approved by Holy Cross, and performed in accordance with Holy Cross Vault Installation Specifications, Construction Specifications and inspector requirements. Any deviation from the approved construction plans will not be made unless approved by Holy Cross in advance. All Facilities installed hereunder shall be inspected during construction by Holy Cross and shall meet all Holy Cross requirements prior to acceptance of such Facilities by Holy Cross. a. Prior to commencement of any work hereunder, Holy Cross shall furnish to Developer its Vault Installation Specifications and Construction Specifications and such specifications are made a part hereof by reference. b. All Facilities installed within the Property and Adjacent Land shall be within dedicated or conveyed and recorded utility easements. c. The top of all conduits installed hereunder shall be located a minimum of 48" below the final grade of the ground surface. d. A twelve-inch (12'~ minimum separation will be maintained between conduits installed for the Facilities and all other new or existing underground utilities. Wherever possible, this separation will be horizontal. The Facilities conduit separation from plastic gas lines shall be greater than this minimum wherever practicable. e. Holy Cross will supply the necessary conduit and vaults for installation by the Developer upon completion of contractual arrangements. Developer assumes responsibility for all material lost or damaged after such material has been issued to and signed for by Developer or by an agent of Developer. Alternatively, Developer may provide its own conduit and vaults meeting Holy Cross specifications for use on the Project and convey such provided material to Holy Cross with ~n acceptable Bill of Sale. After installation by the Developer and acceptance by Holy Cross, Holy Cross shall continue as the owner of the conduit, vaults and related structures and facilities. f. If conduit and/or vault installation provided by Developer for the Project are found to be unusable or improperly constructed, irrespective of whether such discovery is made during or after installation, Developer will be responsible for correcting said problems at its expense as specified by Holy Cross and Developer shall reimburse Holy Cross for all additional costs resulting from conduit and/or vault installation being unusable or improperly constructed. 2. Despite the fact that Holy Cross reserves the right to specify acceptable work performed hereunder, Developer shall perform work hereunder as an independent contractor, including, but not limited to, the hiring and firing of its own employees, providing its own tools and equipment, payment of all wages, taxes, insurance, employee withholdings, and fees connected with its work on the Project. 3. Developer shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder. Developer shall repair all damage caused during excavation promptly and at its expense. No excavation will be undertaken within five (5) feet of existing underground electric facilities except under the on site supervision of a qualified Holy Cross employee. 4. Developer shall indemnify, save, and hold harmless Holy Cross, its employees and agents, against any and all loss, liability, claims, expense, suits, causes of action, or judgments for damages to property or injury or death to persons that may arise out of work performed hereunder, or because of a breach of any of the promises, covenants and agreements herein made by the Developer. Developer shall promptly defend Holy Cross whenever legal proceedings of any kind are brought against it arising out of work performed hereunder. In the event Developer shall fail to promptly defend Holy Cross, it shall be liable to Holy Cross, and shall reimburse it, for all costs, expenses and attorney fees incurred in defending any such legal proceeding. Developer agrees to satisfy, pay, and. discharge any and all judgments and fines rendered against Holy Cross arising out of any such proceedings. Developer also agrees to promptly satisfy and pay any monetary settlements of disputes that arise hereunder, provided Developer has been given the opportunity to join in such settlement agreements. The above indemnification clause shall not apply to state and local governments or local service districts. In lieu thereof, whenever Developer is a government or district it shall procure and maintain in effect at least $1,000,000 of public liability insurance covering the acts, damages and expenses described in the above indemnification clause. Upon Holy Cross' request, such a Developer shall furnish a Certificate of Insurance verifying the existence of such insurance coverage. 5. Developer shall repair, at its expense, any excavation settlement and damage to asphalt paving or other surface improvements caused by such settlement resulting from work performed hereunder within the Property and Adjacent Land for a period of two (2) years beginning on the date backfill and cleanup are completed. 6. Developer, at its expense, shall stop the growth of thistles and/or other noxious weeds in all areas disturbed by excavation performed hereunder for a period of two (2) years beginning on the date backfill and cleanup are completed. 7. In the event Developer shall not promptly complete all of the obligations hereinabove agreed to be performed by Developer, Holy Cross may give written notice by registered or certified mail demanding Developer to complete the work and obligations undertaken by Developer herein, and if such is not completed within 30 days after receipt of such notice by Developer, Holy Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, ali costs of completion shall be chargeable to and collectible from Developer. W/O#03-17898-50-44:Berry Creek 5`" Filing/Miller Page 1 Of 2 Revised 10-09-02 EXHIBIT ¢~ ,~J it ~ [~ • ~ 8. As set forth in paragraph 1 above, Developer covenants that the trench, and all Facilities within the trench installed hereunder shall be located within dedicated or conveyed and recorded utility easements and at the proper depth below finished grade. It shall be the obligation of Developer to properly locate and construct the Facilities within the easement. Should it ever be discovered that such Facilities have not been properly located within dedicated or conveyed and recorded utility easements, or at the proper depth, it shall be the obligation of Developer to provide new easements for the actual location of the Facilities, or to relocate the Facilities within the easement, all of which shall be at the sole cost and expense of Developer. 9. It shall be Developer's responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-opening sides and backs of said transformers and switchgear. Developer hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said corrections will be made at the sole cost and expense of Developer. 10. Developer covenants that it is the owner of the above described Property and that said Property is free and clear of encumbrances and liens of any character, except those held by the following: The promises, agreements and representations made by Developer herein shall be covenants that run with the Property and shall be binding upon the successors in interest, and assigns, of the Property. Holy Cross Energy, a Colorado corporation EAGLE COUNTY By: Richard D. Brinkley, General Manager -Regulated Services STATE OF COUNTY OF ss. By: The foregoing instrument was acknowledged before me this by as WITNESS my hand and official seal. My commission expires: (Vice) Chairman -Board of County Commissioners day of , 20_, Chairman -Board of County Commissioners. Notary Public Address: STATE OF COUNTY OF ss. The foregoing instrument was acknowledged before me this day of by Richard D. Brinkley, General Manager -Regulated Services of Holy Cross Energy, a Colorado corporation. WITNESS my hand and official seal. My commission expires: 20_, Notary Public Address: W/O#03-17898-50-44:Berry Creek S~' Filing/Miller Ranch P.U.D.:2-4-03 Veda~Smith Stephenson Page 2 Of 2 Revised 10-09-02 Trench, Conduit and Vault Agreement Holy Cross Energy