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TC Res. No. 2010-20 Approving the Encroachment Agreement with Holy Cross EnergyTOWN OF AVON RESOLUTION NO. 10 -20 Series of 2010 A RESOLUTION APPROVING THE ENCROACHMENT AGREEMENT WITH HOLY CROSS ENERGY FOR IMPROVEMENTS RELATED TO THE AVON COMMUNITY HEAT RECOVERY PROJECT, TRACT H, BLOCK 2, BENCHMARK AT BEAVER CREEK WHEREAS, the Town of Avon is currently constructing the Avon Community Heat Recovery Project; and WHEREAS, the Town of Avon has a right to use Tract H, Block 2, Benchmark at Beaver Creek, known as the Avon Wastewater Treatment Facility, to construct a utility building known as the Heat Pump Building; and WHEREAS, the Town of Avon entered into an Intergovernmental Agreement with the Eagle River Water and Sanitation District for the funding, construction, maintenance, and operation of the Heat Recovery Project; and WHEREAS, Holy Cross Energy is the owner of a 25 -foot right of way easement along the northern property boundary of Tract H; and WHEREAS, Holy Cross Energy requires the execution of the Encroachment Agreement, attached hereto as Exhibit A, to permit the construction of the Heat Pump building beneath the overhead power lines. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Town Council of the Town of Avon hereby approves the Encroachment Agreement by and between Holy Cross Energy, the Town of Avon, and Eagle River Water and Sanitation District, attached as Exhibit A. ADOPTE effl 8, 2010. � o .ti TOWN COUNCIL S TOW OF AVON, COLORADO �O�ORADD �' Ronald C. Wolfe, Mayo ST: . 3 P y Kenny, TIo4 Clerk Patty McKenny From: Patty McKenny Sent: Monday, November 01, 2010 10:01 AM To: Jeffrey Schneider Subject: Holy Cross Encroachment Agreement:) I'm missing the agreement do you have the original or copy for me? Thanks. 114tiy.41chei#i#y Assistant Town Manager- Management Services Town of Avon, Heart of the Valley w.970.748.4035 email: pmckenny @avon.org website: www.avon.org - -lo � C o� y 11 r • Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town Manager From: Justin Hildreth, P.E., Town Engineer Jeffrey Schneider, P.E., Project Engineer Date: September 21, 2010 Initials t Re: Resolution No. 10 -20, Series of 2010, A Resolution Approving the Encroachment Agreement with Holy Cross Energy for Improvements Related to the Avon Community Heat Recovery Project, Tract H, Block 2, Benchmark at Beaver Creek Summary: The Avon Community Heat Recovery project will utilize the heat energy in treated wastewater effluent from the Avon Waste Water Treatment Facility (WWTF) to heat the Recreation Center swimming pools and eventually provide snowmelt energy for Main Street. The project consists of installing pumps, heat exchangers, process piping, and other new equipment in a building at the Avon WWTF and trenching heat supply and return lines to another new building to be located immediately east of the Recreation Center. The project is partially funded by a grant from the Governor's Energy Office through the Colorado Department of Local Affairs (DOLA) and is being • conducted in partnership with the Eagle River Water and Sanitation District ( ERWSD). The Heat Pump Building, located on the WWTF site, is constructed beneath existing Holy Cross Energy (HCE) overhead power lines. HCE owns a 25 -foot wide easement for the lines along the property line. Resolution 10 -20, attached as Exhibit A, allows the Town to encroach into the easement for construction and operation of the Heat Recovery system. HCE has agreed to the construction, the Encroachment Agreement is merely a housekeeping item to ensure that all parties are in agreement regarding the encroachment. Previous Council Action: Town Council approved the grant agreement with DOLA at the April 28, 2009 regular meeting. The intergovernmental agreement between ERWSD and Town of Avon (TOA) was approved at the May 26, 2009 regular Council meeting. The Design Services Contract was awarded to Camp, Dresser, and McKee, Inc. (CDM) at the June 23, 2009 regular Council meeting. Previous project updates were given to Council at the November 10, 2009 and February 9, 2010 meetings. The construction contract was awarded to GE Johnson Construction Company (GEJCC) on April 13, 2010. Change Order 01 to the construction contract was approved by Town Council at the July 13, 2010 meeting. Discussion: Two buildings are being constructed as part of the Avon Community Heat Recovery project: the Heat Distribution Building and Heat Pump Building. The buildings are located adjacent to the Recreation Center and on the Avon WWTF site, respectively. In order to meet the requirements of the property owner ( ERWSD), the Heat Pump building was forced to within five feet of the WWTF perimeter fence. This area is within an easement owned by HCE for its overhead lines, known as a 25 -foot right of way easement. The Encroachment Agreement is a three -party agreement with the Town, HCE, and ERWSD, the • property owner. It acknowledges that the Town constructed a building beneath existing power lines t Resolution 10 -20 September 28, 2010 Page 2 of 2 • and indemnifies HCE. ERWSD is approving the agreement concurrently. Due to site constraints, no other feasible location was available at the WWTF site that would have allowed for vehicle circulation, staging, and future plant expansion. Financial Implications: There are no financial implications associated with the execution of Resolution 10 -20, Series of 2010. Recommendation: Staff recommends approval of Resolution No. 10 -20, Series of 2010, A Resolution Approving the Encroachment Agreement with Holy Cross Energy for Improvements Related to the Avon Community Heat Recovery Project, Tract H, Block 2, Benchmark at Beaver Creek. Proposed Motion: Move to approve Resolution No. 10 -20, Series of 2010, A Resolution Approving the Encroachment Agreement with Holy Cross Energy for Improvements Related to the Avon Community Heat Recovery Project, Tract H, Block 2, Benchmark at Beaver Creek. Town Manager Comments: Attachments: Attachment A — Resolution 10 -20, Series of 2010, A Resolution Approving the • Encroachment Agreement with Holy Cross Energy for Improvements Related to the Avon Community Heat Recovery Project, Tract H, Block 2, Benchmark at Beaver Creek 1� • Page 2 ATTACHMENT A TOWN OF AVON RESOLUTION NO. 10 -20 Series of 2010 A RESOLUTION APPROVING THE ENCROACHMENT AGREEMENT WITH HOLY CROSS ENERGY FOR IMPROVEMENTS RELATED TO THE AVON COMMUNITY HEAT RECOVERY PROJECT, TRACT H, BLOCK 2, BENCHMARK AT BEAVER CREEK WHEREAS, the Town of Avon is currently constructing the Avon Community Heat Recovery Project; and WHEREAS, the Town of Avon has a right to use Tract H, Block 2, Benchmark at Beaver Creek, known as the Avon Wastewater Treatment Facility, to construct a utility building known as the Heat Pump Building; and WHEREAS, the Town of Avon entered into an Intergovernmental Agreement with the Eagle River Water and Sanitation District for the funding, construction, maintenance, and operation of the Heat Recovery Project; and WHEREAS, Holy Cross Energy is the owner of a 25 -foot right of way easement along the northern property boundary of Tract H; and • WHEREAS, Holy Cross Energy requires the execution of the Encroachment Agreement, attached hereto as Exhibit A, to permit the construction of the Heat Pump building beneath the overhead power lines. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Town Council of the Town of Avon hereby approves the Encroachment Agreement by and between Holy Cross Energy, the Town of Avon, and Eagle River Water and Sanitation District, attached as Exhibit A. ADOPTED September 28, 2010. ATTEST: Patty McKenny, Town Clerk • TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor EXHIBIT A ENCROACHMENT AGREEMENT • THIS AGREEMENT, is made and entered into this day of by and between TOWN OF AVON ( "Avonj AND EAGLE RIVER WATER AND SANITATION DISTRICT, a quasi - municipal corporation, (the "Owner") and Holy Cross Energy (hereinafter referred to as "Holy Cross"). WHEREAS, Avon is planning improvements upon a piece of property owned by the Owner described as: A part of Sections 11 and 12, Township 5 South, Range 82 West of the 6" P.M., a/k /a Tracts N, H and O, Benchmark at Beaver Creek Block 2 as more fully described in that particular Warranty Deed recorded by Reception No. 604193 in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado, (hereinafter the "Property"); and WHEREAS, Avon has the right to use that property under an agreement called "Intergovernmental Agreement Regarding Heat Recovery Project" dated May 28, 2009; and WHEREAS, there is a 25' foot Holy Cross right -of -way easement across the property (hereinafter the "Easement's as more fully described in the easement recorded by Reception No. 157490 in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado, and WHEREAS, certain existing improvements and proposed improvements (collectively "Improvementsl encroach upon the Easement in an area shown as "AREA OF ENCROACHMENT" on attached Exhibit A. NOW, THEREFORE, in consideration of the covenants and promises herein, the parties hereby agree as follows: 1. Holy Cross shall permit the Avon Community Heat Recovery Building to encroach upon the Easement. 2. Avon and the Owner accept any and all risks associated with the proximity of the Improvements to the current and future high voltage electric power lines. 3. Avon and the Owner warrant that it now has and shall continue to maintain adequate hazard insurance for the protection of all structures, facilities or other property of whatsoever character owned by Avon or the Owner within or adjacent to the Easement. 4. Holy Cross shall never be liable to Avon or the Owner for damages to the Improvements arising out of its use of the Easement to install, repair and maintain its electric facilities. 5. The Avon and the Owner shall indemnify Holy Cross from any increase in the cost of construction of any new utility lines or in the cost of any repairs to Holy Cross's utility lines, such increase, if any, due to the encroachment of the Improvements into the Easement. 6. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, their heirs, successors and • assigns, and shall be deemed to run with the Property and the Easement herein described, until such time as the Easement is relinquished or abandoned by Holy Cross, or the encroachment is permanently removed. This Agreement shall be recorded against the Property in Eagle County, Colorado. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the day and year first above written. HOLY CROSS ENERGY EAGLE RIVER WATER AND SANITATION, a quasi municipal corporation By: By_ Richard D. Brinkley, General Manager of (Vice) Chairman of the Board Electric Operations and Engineering STATE OF ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 by as (Vice) Chairman of the Board of EAGLE RIVER WATER AND SANITATION, a quasi municipal corporation. WITNESS my hand and official seal. My commission expires: Notary Public Address: W 1O #10- 20992:50- 63:Avon Waste Heat Recovery:8 /24/10 10-20992 Encroachment Agreement Avon -Eagle Bs Page 1 of 2 • • • • TOWN OF AVON By:, STATE OF ) ss. COUNTY OF ) Mayor The foregoing instrument was acknowledged before me this day of 20 by as Mayor of the TOWN OF AVON. WITNESS my hand and official seal. My commission expires: Notary Public Address: STATE OF 1 ss. COUNTY OF 1 The foregoing instrument was acknowledged before me this day of 20 by Richard D. Brinkley, General Manager of Electric Operations and Engineering of Holy Cross Energy, a Colorado Corporation. WITNESS my hand and official seal. My commission expires: Notary Public Address: W 1O#10- 20992:50- 63:Avon Waste Heat Recovery:8 /24/10 10-20992 Encroachment Agreement Avon -Eagle SS Page 2 of 2 ��7 Ire 1,7 EATMENT PLANT/ /O p�c/ Rq��Ro AD L� TRACT N NOTTINGHAM LAKE T ly TRACT H TRACT N '9CC� TRACT 0 TRACT P *WE Holy Cross Energy NO FTTOL SCALE Date Section 11,12 Township 5 South Range 82 West of the 6th P.M. Eagle County EXHIBIT A Glenwood Springs, Colorado AP CATIONS 08/26/10 Job Name: AVON WASTE HEAT RECOVERY W/O #: 20992