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HomeMy WebLinkAboutC05-286 AGREEMENT ESTABLISHING THE OBLIGATIONS OF CROWN MOUNTAIN PARK AND RECREATION DISTRICT REGARDING THE INSTALLATION OF UNDERGROUND ELECTRIC FACILITIES AT THE MT. SOPRIS TREE FARM PROPERTY, EAGLE COUNTY, COLORADO RECITALS THIS AGREEMENT is made and entered into this~ day of ,2005, by Eagle County, by and through its Board of COlmty Commissioners "County") and Crown Mountain Park and Recreation District, ("Crown Mountain"). Collectively these entities are also referred to as the "Parties." Whereas, County is the owner of real property commonly known as the Mt. Sopris Tree Farm Property in Basalt, Colorado consisting of approximately 132 acres ( hereinafter "Tree Farm"). Whereas, Crown Mountain has leased certain portions ofthe Tree Farm and contracted with County to develop certain portions of the Tree Farm for active and passive recreation purposes as more fully set forth in the Lease Agreement between County and Crown Mountain dated March 10,2005. Whereas, as part of said development Crown Mountain has requested that Holy Cross Energy provide underground electric facilities at the Tree Farm. Crown Mountain has agreed to pay for such installation. Whereas, Holy Cross Energy is requiring County, as owner of the Tree Farm, to execute a Trench, Conduit, and Vault Agreement in a form similar to the attached Exhibit "A." Further, the County is not executing a separate underground right-of-way easement with Holy Cross Energy as the easement will be shown on the plat to be submitted by Crown Mountain for consideration and approval by Eagle County and its Board of County Commissioners. 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 Crown Mountain acknowledge and agree that the work and financial responsibilities set forth in the Trench, Conduit, and Vault Agreement and associated with the grant of an Underground Right-Of-Way Easement on the plat should be assumed and born by Crown Mountain as developer and lessee of portions ofthe Tree Farm. 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. Crown Mountain 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 "A." 2. Crown Mountain shall perform all work and responsibilities, including financial responsibilities required of County and shall adhere to the terms and conditions set forth in the Holy Cross Energy Underground Right-Of-Way Easement which will be shown on a plat to be submitted by Crown Mountain for consideration and approval by Eagle County and its Board of County Commissioners. 3. Crown Mountain 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, Crown Mountain's performance or nonperformance of County's responsibilities set forth in the Trench, Conduit, and Vault Agreement and in the Underground Right-Of-Way Easement as shown on the plat to be submitted by Crown Mountain. 4. The Parties agree that, except as expressly stated herein, all terms and provisions of other agreements between County and Crown Mountain pertaining to the Tree Farm shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. 5. The Parties agree that this Agreement may be enforced in law or in equity for specific performance, injunctive, or other appropriate relief, including damages, as may be 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 the terms contained herein. 6. This Agreement shall be governed and construed in accordance with the State of Colorado. Venue for any action arising out of any dispute hereunder shall be in the appropriate court in the County of Eagle, State of Colorado. 7. 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. 8. This Agreement may be 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 ofthe day and year first above written. CROWN MOUNTAIN PARK AND RECREATION DISTRICT B~:~ ~ TItle: ~ ,<, Q.c...~ ATTEST: BY: Secretary 0 COUNTY COMMISSIONER FOR o NTY, STATE OF COLORADO ATTEST: BY: . EAGLE COUNTY RECORDER, COLORADO 934522 TEAK J SIMONTONM'~ '1iI5:21 :23PM 23 11 ilii DIm 1111 11""10/25/2005 TRENCH, CONDUIT, AND VAULT AGREEMENT \ ~ This agreement is made and entered into this ~.qfV\ day of_Au4U?t- , 20005 ~ \, between BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, whose mailing address is P.O. Box 850, Eagle, Colorado 81631, hereinafter called "Owner", and Holy Cross Energy, a Colorado corporation whose mailing address is P. O. Box 2150, Glenwood Springs, Colorado 81602, hereafter called "Holy Cross". WHEREAS, Holy Cross has been requested by Owner to provide underground electric facilities, hereinafter called "Facilities", to serve a project known as Crown Mountain Park, hereinafter called "Project"; and, WHEREAS, Owner is required to provide all excavation, conduit and vault installation, backfill, compaction and cleanup needed to construct said requested Facilities; and, WHEREAS, Owner owns real property described as follows: A parcel of land in Section 3, Township 8 South, Range 87 West of the 6th P.M. as recorded by Reception No. 754140 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: Not Applicable, hereinafter called "Adjacent Land". NOW, THEREFORE, Owner and Holy Cross agree as follows: 1. Owner 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 Owner 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 Owner upon completion of contractual arrangements. Owner assumes responsibility for all material lost or damaged after such material has been issued to and signed for by Owner or by an agent of Owner. Alternatively, Owner 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 an acceptable Bill of Sale. After installation by the Owner 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 Owner for the Project are found to be unusable or improperly constructed, irrespective of whether such discovery is made during or after installation, Owner will be responsible for correcting said problems at its expense as specified by Holy Cross anu Owner shall reirnbui'se 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, Owner 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 with holdings, and fees connected with its work on the Project. 3. Owner shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder. Owner 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. Owner 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 Owner. Owner shall promptly defend Holy Cross whenever legal proceedings of any kind are brought against it arising out of work performed hereunder. In the event Owner 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. Owner agrees to satisfy, pay, and discharge any and all judgments and fines rendered against Holy Cross arising out of any such proceedings. Owner also agrees to promptly satisfy and pay any monetary settlements of disputes that arise hereunder, provided Owner 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 Owner 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 Owner shall furnish a Certificate of Insurance verifying the existence of such insurance coverage. 5. Owner 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. Owner, at its expense, shall stop the growth of thistles and/or other noxious weeds in all areas disturbed by excavation performed he,'Eunder for a period uf tvilO (2) years L>2~ir'iling on the date ba;~kfill ana cleanup are completed. 7. In the event Owner shall not promptly complete all of the obligations hereinabove agreed to be performed by Owner, Holy Cross may give written notice by registered or certified mail demanding Owner to complete the work and obligations undertaken by Owner herein, and if such is not completed within 30 days after receipt of such notice by Owner, Holy Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, all costs of completion shall be chargeable to and collectible from Owner. WIO#05-19266:66-49:Crown Mountain Park:5-11-05 Veda\Franke\Stepp Page 1 of 2 Revised 7-7-04 8. As set forth in paragraph 1 above, Owner 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 Owner 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 Owner 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 Owner. 9. It shall be Owner'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. Owner 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 Owner. 10. Owner 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 Owner herein shall be covenants that run with the Property and shall be binding upon the successors in interest, and assigns, of the Property. The individual signing this Trench, Conduit and Vault Agreement hereby represents that he/she has full power and authority to sign, execute, and deliver this instrument. Holy Cross Energy, a Colorado corporation By: STATE OF EJj. ) ~~. COUNTY OF ~~ ) ~ The follgoing instrur;;ent was ac~nowledged before me this ~ day of AlIPllJ.&-r ,20t!.S by w M. ,(, en tAn I as Chairman of the BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY. WITNESS ~y h~nd and official seal. .... /7.... // " /1~;l./ .//{,,/ My commission expir_ // l.>Z:/;:J::ld!f/<. , . ( i:('lICL{~ / // I Notary Public l Address: 1?t)~ tP ,f7'"t.( b()X '8~t) I - I b~/M. 6/;'J! STATE OF ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of f!2~1tJ ,20 '5 , by Richard D. Brinkley, General Manager of Electric Operations Engineering of Holy Cross Energy, a Colorado corporation. WITNESS my hand and official seal. My commission expires: Address: W/O#05-19266:66-49:Crown Mountain Park:5-11-05 Veda\Franke\Stepp Page 2 of 2 Revised 11-2-04 Trench, Conduit and Vault Agreement Holy Cross Energy