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Home My WebLink About20022288.tiff RESOLUTION RE: APPROVE IMPROVEMENTS AGREEMENT (PUBLIC ROAD IMPROVEMENTS AND AUTHORIZE CHAIR TO SIGN - ROCKY MOUNTAIN ENERGY CENTER, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with an Improvements Agreement (Public Road Improvements) between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Rocky Mountain Energy Center, LLC, with terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Improvements Agreement (Public Road Improvements) between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Rocky Mountain Energy Center, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 21st day of August, A.D., 2002. BOARD OF COUNTY J COMMISSIONERS A / WLEL-T(/ RADO ATTEST: �I��j„�,/�{� � � Z ,, Gle ad, C air Weld County Clerk tot 7:o 1861 J i 0� David E. Lon ro-Tem BY: Deputy Clerk to the = %UN1 M.J. Geile i A2PROV A RM: "1^�r.Ages. Iliam H. Jerk Sorney Robert D. Masden Date of signature: /° 2002-2288 OQ eetil , , 4/ PL1582 348 IMPROVEMENTS AGREEMENT (PUBLIC ROAD IMPROVEMENTS) THIS PUBLIC ROAD IMPROVEMENTS AGREEMENT ("Improvements Agreement"), is made and entered into this j 3 tf' day of ji`t5 cis f , 2002, by and between the County of Weld, State of Colorado, acting through its Board of County Commissioners, hereinafter called "County," and Rocky Mountain Energy Center, LLC, a Delaware limited liability company, hereinafter called "Applicant." WITNESSETH: WHEREAS, County currently owns, controls and maintains Weld County Road 51 ("WCR 51"); WHEREAS, WCR 51 south of the Interstate 76 frontage road and north of Colorado Highway 52 currently is a public two lane gravel road; WHEREAS, the Board of County Commissioners (the "Board") adopted a Resolution (the "Resolution") on February 6, 2002, granting to Applicant a Use By Special Review Permit (No. 1339) for the construction and operation of an electric power generation facility known as the Rocky Mountain Energy Center (the "Project"), to be located in Section 31, Township 2 North, Range 64 West, 6th P. M., and bounded on the east by WCR 51; WHEREAS, the Resolution provides that prior to recording the Final Plat for the Project, the Applicant shall submit to the Weld County Department of Planning Services an improvements agreement providing for the paving of WCR 51 between the Interstate 76 frontage road and Colorado Highway 52; and WHEREAS, County is adequately staffed, possesses the necessary expertise and is suitably equipped to undertake and satisfactorily complete the public road improvements described herein. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the acceptance and approval of said Resolution, the parties hereto promise, covenant and agree as follows: 1. Construction and Related Services: 1.1 County shall be solely responsible for providing, performing, and conducting, and shall provide, perform and conduct, all materials, services, and work, including but not limited to engineering and design services, acquisition of all necessary rights-of-way and easements, construction management and services necessary for 1111111111111111111 III 111111 1111 1111111 III IIIII III till 2985348 09/06/2002 11:36A Weld County, CO 1 of 10 R 0.00 0 0.00 J.A. "Suki" Tsukamoto A<26.-2-..2,2 871 • construction of the improvements described on Exhibit "A" (the "Improvements"). Work related to the Improvements shall commence in accordance with the construction schedule set forth in Exhibit "B." The activities relating to construction of the Improvements specified in Item 1 of Exhibit "A" shall commence immediately upon execution of the Improvements Agreement. The activities relating to construction of the Improvements specified in Item 2 of Exhibit "A" shall not commence until the Project has commenced commercial operations. Applicant shall provide written notice to County within ten (10) days prior to the expected commencement of commercial operations of the Project. 1.2 Applicant shall make available to County, for the construction of the Improvements, 16,000 cubic yards of compactible fill which will meet an ASTM rating of R 50. Following notice to County that the Project has commenced commercial operations, Applicant shall make such fill available to County at the Project site. County shall be responsible for all use and transportation of such fill in a manner which does not unreasonably interfere with the commercial operations of the power generation facility. 1.3 Applicant shall not have any ownership rights in WCR 51 or the Improvements and shall not be responsible for the design, construction, control or maintenance of WCR 51 or the Improvements, or the performance by County under this Improvements Agreement. 2. Improvements Payments: Applicant shall make payments to County to be applied to the design and construction costs of the Improvements in accordance with Sections 3 and 4 but shall not be responsible for any ongoing operations, maintenance or future improvement costs associated with the Improvements. 3. General Requirements for Improvements Payments: 3.1 The value of all payments made to County by Applicant shall not exceed One-Hundred percent (100%) of the cost of the Improvements as specified on Exhibit "A" ("Improvements Payments"). Applicant shall submit payments according to the schedule and amounts set forth in Exhibit "C," which is attached hereto and incorporated herein by reference. 3.2 County agrees that in the event the actual costs incurred for design and construction of the Improvements are less than the total cost of the Improvements Payments, County will reimburse Applicant the difference between the actual costs incurred and total cost of the 111111111111111 11111111111111111 III 11111 IIII 1111 2985348 09/06/2002 11:36A Weld County, CO 2 2 of 10 R 0.00 D 0.00 J.A. "Suki" Tsukamoto • Improvements Payments within thirty (30) days of the completion of the Improvements. 4. Improvements Guarantee: Improvements Payments made to County shall be in United States currency in an amount equal to and at the times specified in Exhibit "C". Such payments shall be deposited in an escrow account with a Federal or State licensed financial institution (the "Financial Institution"), as escrow agent, with instructions to release funds upon the request of County and in accordance with this Improvements Agreement. County shall provide biannual statements to Applicant, describing incurred costs and work performed on the Improvements. Applicant shall have the right to inspect and obtain copies of all books and records of County relating to the Improvements and the performance by County of its obligations hereunder. 5. Default: Applicant's failure to make the Improvements Payments in accordance with Exhibit "C" shall constitute a default upon its occurrence unless cured within thirty (30) days after the date of written notice from County to Applicant. In the event of such a default, County shall have all remedies available to it at law or in equity for the recovery of sums due and owing hereunder and shall have the right to institute revocation proceedings relating to Use by Special Review Permit No. 1339 in accordance with applicable law. 6. No Third Party Beneficiary: It is expressly understood and agreed that enforcement of the terms and conditions of this Improvements Agreement, and all rights of action relating to such enforcement, and any benefits arising hereunder, shall be strictly reserved to the undersigned parties. Nothing contained in this Improvements Agreement, expressed or implied, shall give or allow any claim, right, remedy or cause of action whatsoever to any other person or entity not a party to this Improvements Agreement. 7. Non-Assignment: This Improvements Agreement shall not be assigned by either party without the prior written consent of the non-assigning party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, for the purpose of financing the Project, Applicant may assign to, or create a security interest in favor of, any lender or other financing party in Applicant's rights and interests in, under or pursuant to this Improvements Agreement. County hereby agrees to execute a consent to such assignment acknowledging the right of the lender, financing party, or their assignees to perform the obligations of Applicant under this Improvements Agreement in the exercise of remedies under the financing documents, and containing such other provisions as may be reasonably requested by the lender or other financing party. 1111111111111111111 III 111111 IIII IIIIIII III 11111 IIII IIII 2985348 09/06/2002 11:36A Weld County, CO 3 3 of 10 R 0.00 D 0.00 J.A. "Suki" Tsukamoto 8. Notices: Notices under this Improvements Agreement shall be in writing and shall be delivered by hand, overnight courier service, mailed or sent by telecopy as follows: If to County: Board of County Commissioners 915 10`h Street P.O. Box 758 Greeley, Colorado 80632 Fax No. (970) 352-0242 If to Applicant: Rocky Mountain Energy Center, LLC c/o Calpine Corporation P.O. Box 11749 Pleasanton, California 94588-1749 Attention: Asset Optimization Fax No. (925) 479-7311 Copy to: David D. Perkins Director-Project Development Rocky Mountain Energy Center, LLC 26 W. Dry Creek Circle, Suite 600 Littleton, Colorado 80120 Fax No. (720) 283-4154 9. Successors and Assigns: This Improvements Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of Applicant. 10. Governing Law: This Improvements Agreement shall be governed by, and construed in accordance with, the laws of the State of Colorado, without regard to such state's conflicts of laws principles. Any and all suits or claims arising under this Improvements Agreement shall be brought in the state courts located in the County. 11. Severability: If at any time any provision of this Improvements Agreement is or becomes illegal, invalid or enforceable in any respect, such illegality, invalidity or unenforceability shall not affect or impair the legality, validity or enforceability of any other provisions of this Improvements Agreement. 111111111111 Bill 111111/III1111111IIIIIIII/IIIIll 2985348 09/06/2002 11:36A Weld Counry, C0 4 of 10 R 0.00 D 0.00 J.A. "Sulu Tsukamoto 4 12. Amendment: Any amendment of or modifications to this Improvements Agreement shall be effective only if in writing and executed by a duly authorized representative of each party. 13. Entire Agreement: This Improvements Agreement, the Exhibits hereto, and any other documents referred to herein, constitute the entire and only agreement between the parties relating to the subject matter hereof. This Improvements Agreement, the Exhibits hereto, and all other documents referred to herein supersede and extinguish any prior drafts, agreements, undertakings, representations, warranties, and arrangements of any nature, whether or not in writing. 14. Conduct: Each party shall act in good faith in exercising its rights and performing its obligations under this Improvements Agreement. 15. Counterparts: This Improvements Agreement may be executed in any number of counterparts, each of which shall constitute an original as against the party whose signature appears thereon, and all of which taken together shall constitute one and the same instrument. This Improvements Agreement shall become binding when one or more counterparts, individually or taken together, shall bear the signatures of all parties to this Improvements Agreement. [Signature page follows] 1 IIIIII IIIII 11111111111111E 111111 IIII 1111111 III IIIII 1111 2985348 5 5 of 10 R 0.00 0 0.001:36/1. 'Saki' Tsukamoto • IN WITNESS WHEREOF, the parties hereto have caused this Improvements Agreement to be executed on the day and year first above written. ROCKY MOUNTAIN ENERGY CENTER, LLC By:______ S� Name: Title: Robert L. Lamkin Vice President Subscribed and sworn to before me this /3fh day of A ,13 ,,,,l- , 2002. My Commission expires: Cixteistv hl{�/T.(l� � itio / 0//09/0Y Notary Q4V'i 1- •� PHYLLIS'il''.FNLE t 1. r; {Sn COMMISSION 124©974 NO PHYL 0uc+,A 4LE BOARD OF COUNTY COMMISSIONERS li ALAMEDA Cour4ry WELD COUNTY, OLORADO Qy My eemrtssvos tepaes Jan 9.5704 By: Ai Glenn Vaad, Chair (08/21/2002) jth ATTEST:LS �►` Lai, Weld County Clerk to t B. : d 1. I By: Deputy Clerk to th APPROVED AS TO FOR`%2 ' Count Lorne 1111111111111111111 III 111111 IIII 1111111 III 11111 IIII IIII 2985348 09/06/2002 11:36A Weld County, CO 6 of 10 R 0.00 0 0.00 J.A. "Suki" Tsukamoto EXHIBIT "A" Name of Applicant: Rocky Mountain Energy Center, LLC Filing: USR No. 1339 Location: 6241 Weld County Road 51, Hudson, Colorado 80642 Intending to be legally bound, County agrees to provide the following Improvements: (Leave spaces blank where they do not apply.) ESTIMATED QUANTITY/ CONSTRUCTION IMPROVEMENTS UNIT COST COST 1) Grading of Weld County Road 51 south of the I-76 frontage road on northern and southern approaches to the Burlington Northern & Santa Fe Railway grade crossing in accordance with a design provided by County and approved by the Colorado Public Utilities Commission that is in conformance with County standards and prevailing practices; and 2) Paving of Weld County Road 51 south of the I-76 frontage road and north of Colorado State Highway 52, Weld County, Colorado in accordance with a design provided by County that is in conformance with County standards and prevailing practices. TOTAL COST OF $985,000* $985,000* IMPROVEMENTS & SUPERVISION: The above Improvements shall be constructed in accordance with the terms of the Improvements Agreement. * Subject to adjustment on May 1, 2004, pursuant to the McGraw Hill State Hiehwav Bid Price Index. 1111111 VIII 1111111 III 111111 IIII 1111111 III VIII IIII IIII 2985348 09/06/2002 11:36A Weld County, CO 7 of 10 R 0.00 D 0.00 J.A. "Suki" Tsukamoto • The Improvements shall be completed according to the construction schedule set forth in Exhibit "B." BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO B Glenn aad, Chair rot/L /2002) 1 111111 11111 HI III It 1111 1111111 III 11111 IIII III 2985348 09/06/2002 11:36A Weld County, CO 8 of 10 R 0.00 D 0.00 J.A. "Suki" Tsukamoto EXHIBIT "B" Name of Applicant: Rocky Mountain Energy Center, LLC Filing: USR No. 1339 Location: 6241 Weld County Road 51, Hudson, Colorado 80642 The Improvements described in Item 1 below shall be completed within 2 months of the completion of the installation of flashing light signals and gates and extension of the crossing surface ("Crossing Improvements") of the Burlington Northern and Santa Fe Railway tracks and right of way at Milepost 509.1 on the Brush Subdivision, east of Hudson, Colorado, or as otherwise directed in the Order issued by the Colorado Public Utilities Commission relating to the Crossing Improvements. Construction of the Improvements listed in Exhibit "A" shall be commenced as follows: (Leave spaces blank where they do not apply.) TIME FOR COMMENCEMENT OF IMPROVEMENTS IMPROVEMENTS 1) Grading of Weld County Road 51 south of the Activities relating to construction I-76 frontage road on the northern and southern of Improvements specified in Item 1 approaches to the Burlington Northern & Santa shall begin upon execution of this Fe Railway grade crossing in accordance with a Improvements Agreement. design provided by County and approved by the Colorado Public Utilities Commission that is in conformance with County standards and prevailing practices; and 2) Paving of Weld County Road 51 south of the Activities relating to construction I-76 frontage road and north of Colorado State of Improvements specified in Item 2 Highway 52, Weld County, Colorado in will not begin until County has accordance with a design provided by County received notification from that is in conformance with County standards and Applicant that it has commenced prevailing practices. commercial operations. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO By: St.( Glenn Vaad, Chair--'7sc/21/2002) 111111 11111 1111111 HMI IIII 1111111 III 11111 IIII IIII 2985348 09/06/2002 11:36A Weld County, CO 9 of 10 R 0.00 0 0.00 J.A. "Suki" Tsukamoto EXHIBIT "C" Name of Applicant: Rocky Mountain Energy Center, LLC Filing: USR No. 1339 Location: 6241 Weld County Road 51, Hudson, Colorado 80642 IMPROVEMENTS PAYMENT AMOUNT PAYMENT DATE $100,000 September 1, 2002 $442,500 January 15, 2003 $442,500* May 1, 2004 * Subject to adjustment pursuant to the McGraw Hill State Highway Bid Price Index. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO By: St, (� � Glenn Vaad, Chair /21/2002) 2941941_6.DOC 12119018153011:4181110011110161./102100110 III IIIIII IIII IIIIIII III IIIIII III IIII D 0.00 J.A. Suk1 Tsukamoto 10 ESCROW AGREEMENT This Escrow Agreement(the"Agreement")is among Rocky Mountain Energy Center,LLC and Board of County Commissioners of Weld County (the"Parties")and Wells Fargo Bank West, National Association(the"Escrow Agent"). Recitals WHEREAS the Parties agree to place in escrow certain funds,securities,documents,and/or other property and the Escrow Agent agrees to hold and distribute such funds,securities,documents,and/or other property in accordance with the instructions of the Parties,the Escrow Agent and the Parties make this agreement as follows: Article 1: Directions 1.01 Escrowed Property: The Parties will deposit with the Escrow Agent the property described in Schedule A(the "Escrowed Property"),attached hereto and incorporated herein by reference. 1.02 Instructions: The Escrow Agent shall hold, invest,if applicable, and disburse the Escrowed Property pursuant to the instructions set forth in Schedule B, attached hereto and, except as provided in section 3.02, incorporated herein by reference. 1.03 Assignment of Interest: The assignment, transfer, conveyance, or hypothecation of any right, title, or interest in and to the subject matter of this Agreement (referred to under this Section 1.03 as "Assignment") shall be binding upon the Escrow Agent upon delivery of notice to the Escrow Agent of the Assignment and payment to the Escrow Agent of all of its fees, in connection with the Assignment, provided the Escrow Agent has given its written assent to the Assignment. Article 2: Compensation of the Escrow Agent The Parties agree,jointly and severally,to pay the Escrow Agent: a. Its fees,charges,and expenses for all services rendered by it under this Agreement;and b. Reasonable compensation for services rendered in connection with this Agreement but not expressly provided for herein and reimbursement for those expenses incurred by the Escrow Agent in rendering such services, including, but not limited to Court costs and attorney's fees incurred as a result of any dispute arising out of the Agreement. The Escrow Agent shall have a first and prior lien upon the Escrowed Property to secure the payments described under paragraphs a. and b. of this Article 2. If any such payment is not timely received by the Escrow Agent,the Parties authorize the Escrow Agent to deduct such payment from the Escrowed Property. All such payments due by not paid within 30 days shall accrue interest at the rate of 19 percent per annum. Article 3: Provisions Concerning Escrow Agent 3.01 Authority of Parties: The Escrow Agent shall be under no duty or obligation to ascertain the identity, authority, and/or rights of the Parties or their agents. 3.02 Other Agreements: The Escrow Agent shall not be a party to, or bound by, any agreement between the Parties other than this Agreement whether or not a copy and/or original of such agreement is held as Escrowed Property; and, the Escrow Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any such agreement between the Parties. 3.03 Deposited Instruments and/or Funds: The Escrow Agent assumes no responsibility for the validity or sufficiency of any instrument held as Escrowed Property,except as expressly and specifically set forth in this Agreement. 3.04 Late Payments or Performance: The Escrow Agent may accept any payment or performance required under this Agreement after the date such payment or performance is due, unless subsequent to such date, but prior to the actual date of payment or performance, the Escrow Agent is instructed in writing by the Parties not to accept such payment or performance. 3.05 Escheat: The Parties are aware that under Colorado law, Escrowed Property which is presumed abandoned may escheat to the State. The Escrow Agent shall have no liability to the Parties, their respective heirs, legal representatives, successors, and assigns, should any or all of the Escrowed Property become escheatable or escheat by operation of law. 3.06 Non-Liability: The Escrow Agent shall not be liable for any act or omission while acting in good faith and in the exercise of its own best judgment. The Escrow Agent shall have the right to consult with counsel at the expense of the Parties whenever any question arises concerning the Agreement and shall incur no liability for any delay reasonably required to obtain such advice of counsel. The Escrow Agent shall not be liable for the alteration, modification or elimination of any right permitted or given under the instructions set forth in Schedule B an/or in any document deposited under the Agreement pursuant to any Statute of Limitations or by reason of laches. The Escrow Agent shall have no further responsibility or liability whatsoever to any or all of the Parties following a partial or complete distribution of the Escrowed property pursuant to this Agreement. The Escrow Agent shall not incur any liability with respect to any act or omission in reliance upon any document, including any written notice or instruction provided for in the Escrow Agreement. In performing its obligations hereunder, the Escrow Agent shall be entitled to presume, without inquiry, the due execution, validity and effectiveness of all documents it receives, and also the truth and accuracy of any information contained therein. The Escrow Agent shall not be responsible or liable for any diminution of principal of the Escrowed Property or any interest penalty,whatsoever,for any reason. 3.07 Indemnification: The Parties agree, jointly and severally, to indemnify and hold harmless the Escrow Agent from any liability, cost, or expense whatsoever, including, but not limited to, attorney's fees incurred by reason of accepting the Agreement and/or Escrowed Property. 3.08 Disagreements: If any disagreement or dispute arises between the Parties to this Agreement concerning the meaning or validity of any provision hereunder or concerning any other matter relating to this Agreement,the Escrow Agent: 2 a. Shall be under no obligation to act, except under process or order of court, or until it has been adequately indemnified to its full satisfaction, and shall sustain no liability for its failure to act pending such process,court order or indemnification;and b. May, in its sole and absolute discretion, interplead the Escrowed Property or that portion of Escrowed Property it then holds with the District Court of the City and County of Denver, State of Colorado, and name the Parties in such interpleader action. Upon filing the interpleader action, the Escrow Agent shall be relieved of all liability as to the Escrowed Property and shall be entitled to recover from the Parties its reasonable attorneys' fees and other costs incurred in commencing and maintaining such action. The Parties by signing this Agreement submit themselves to the jurisdiction of such court and do appoint the Clerk of such Court as their agent for the service of all process in connection with such proceedings. In no event shall the institution of such interpleader action impair the rights of the Escrow Agent described in Section 3.06 of this Article. Article 4: General Terms and Conditions 4.01 Extension of Benefits: This agreement shall be binding upon, inure to the benefit of, and be enforceable by, the respective heirs,legal representatives,successors,and assigns of all of the Parties and the Escrow Agent. 4.02 Governing Law: This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 4.03 Notices: All notices, requests, demands, and other communications required under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or by certified mail, return receipt requested, and postage prepaid. If any notice is mailed, it shall be deemed given on the date such notice is deposited in the United States mail. If any notice is personally delivered, it shall be deemed given upon the date of such delivery. If notice is given to a party,it shall be mailed or delivered to the addresses set forth below the signature blocks. It shall be the responsibility of the Parties to notify the Escrow Agent in writing of any name or address changes. 4.04 Entire Agreement: This Agreement sets forth the entire agreement and understanding of the Parties hereto. 4.05 Amendment: This Agreement may be amended, modified, superseded, rescinded, or canceled only by a written instrument executed by the Parties and the Escrow Agent. 4.06 Waivers: The failure on any party to the Agreement at any time or times to require performance of any provision under this Agreement shall in no manner affect the right at a later time to enforce the same performance. A waiver by any party to the Agreement of any such condition or breach of any term, covenant,representation, or warranty contained in this Agreement, in any one or more instances, shall neither be construed as a further or continuing waiver of any such condition or breach nor a waiver of any other condition or breach of any other term, covenant, representation, or warranty contained in this Agreement. 4.07 Headings: Section headings of this Agreement have been inserted for convenience of reference only and shall in no way restrict or otherwise modify any of the terms or provisions of this Agreement. 3 4.08 Counterparts: This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument 4.09 Resignation or Removal of Escrow Agent: The Escrow Agent may resign at any time by furnishing written notice of its resignation to the Parties. The Parties may remove the Escrow Agent at any time by furnishing to the Escrow Agent a written notice of its removal. Such resignation or removal, as the case may be, shall be effective upon delivery of such notice. IN WITNESS WHEREOF, the Parties to this Agreement have each caused this Agreement to be duly executed on this day of 20 Corporate ame:Rocky Mountain Energy Center Corporate Name:Board of County Commissioners By: By: Title: Rob Lamkin,Vice President Title: Address:4160 Dublin Blvd., Dublin,CA 94568 Address:915 10`hStreet,PO 758,Greeley CO 80632 Telephone: (720)283-4155 Telephone: Tax I.D.No. 77-05474590 Tax I.D.No.84-6000813 The Escrow Agent, by affixing its signature below, hereby acknowledges receipt of the Escrowed Property described in Schedule A and agrees to hold, administer, and dispose of the Escrowed Property in accordance with the terms, conditions, and instructions of this Agreement and any amendments thereto, including those set forth in Schedule B and Exhibits 1 and 2. Wells Fargo Bank West,National Association Escrow Agent Corporate Trust and Escrow Services MAC C7301-024 1740 Broadway Denver,Colorado 80274 Phone: (303)863-6247 FAX: (303)863-5645 Date: By: Account No. Title: 4 SEP=03-2002 TUE 11 :09 AM WEt/ FARGO BANK FAX NO. 3038E" 645 P, 04 _LL NoLLAMILIAALIV Au0-30-2002 FRI 0362 PM WELD 00 GOVT FAX NO. 9703520242 4P.O 03 00$ 08/70/et maw g 61i/l7/TI{ RiNID9 IRooa AUG-30-2002 FRI 02'60 P11 VELD 00 GOVT FM so. /703520242 P. D7 • 4.111 Casionsme 1101Aseszwgb0aaaddisgpasoosimpoimaiataldimiswaadthul 60del vas es mulish dflsipa nd1.0Isol_ia&ts®.dItseer bona Lw aipsils arLa rd0tliaw►*e* 114 flyn swami*a Kw*s•by laiddoirilisssolos0tiia telpsens ft di That Tar Putts ay sows Was nos a swim sAte seasselles ens u•sonl. Sisk toliniks Mimi as Ss is sagrbs.till Ss abet von Mime otos*ma DI Moans winume; ma tom was I. ti A kin rob AId*/ cap.alara is a a.R na Mae 4jSaammantiabbrszaut 44Aw1111 IA�er!►O lit&SW 00 _ TaxDNy T1A747 sso 11a112i. 4�ootli11 talatjWa— TM Ian Ass;WI 0elA0r L eiei him WSW Sat dim norm deg lmaoed:tt m, awl!t NOS A el dada m troll. deilYbtr. eed aa0_ d ti. Laved 1tims0' V .roaYO-aid O.4.ones, ants ad Isaias al this SRCesit ar ay ane Ishiibmi0 • s'440wlmthb MSS.Hurt WS.laa]_ W0141440,200 tislo aUuudsi p Nan Apo Owns Suv4a bat C7301424 Dent Winds ROM ai rc pspsssace r Su*Om$ifs iH5 Da 30 A itypn Tlda avi Rine art. Tn1^ st officer AMEC/Calpine/Pd Paving Escrow • • • SEP 06 2002 3: 46PM HP LASERJET 3200 p. 23 SCHEDULE A TO ESCROW AGREEMENT # dated August _, 2002 by and between Wells Fargo Bank West, National Association, Rocky Mountain Energy Center, LLC, and the Board of County Commissioners of Weld County, Colorado The Escrowed Property shall consist of: 1. Cash or other good funds in the amount of$100,000.00 to be deposited with the Escrow Agent by RMEC no later than September 1, 2002. 2. Cash or other good funds in the amount of$442,500.00 to be deposited with the Escrow Agent by RMEC no later than January 15, 2003. 3. Cash or other good funds in the amount of$442,500.00 (subject to adjustment on May 1, 2004, pursuant to the McGraw Hill State Highway Bid Price Index) to be deposited with the Escrow Agent by RMEC no later than May 1, 2004. • SEP 06 2002 3: 46PM HP LASERJET 3200 P. 24 SCHEDULE B TO ESCROW AGREEMENT # dated August _, 2002 by and between Wells Fargo Bank West, National Association, Rocky Mountain Energy Center, LLC, and the Board of County Commissioners of Weld County, Colorado The Escrow Agent is instructed to disburse the Escrowed Property as follows: 1. Upon receipt of a Disbursement Certificate in the form of Exhibit 1 hereto, executed by an authorized representative of the Board of County Commissioners of Weld County, Colorado ("Board"), disburse the Invoice Amount, as set forth in such Certificate, to the Board via wire transfer to: Wells Fargo Bank West, National Association Weld County Treasury Collections Clearing Account Account # 4428004375 ABA# 102000076 2. Upon receipt of a Disbursement Certificate in the form of Exhibit 2 hereto, executed by an authorized representative of the Board, disburse the balance of the Escrowed Property, including any interest earned thereon, to Rocky Mountain Energy Center, LLC via bank check mailed to: Rocky Mountain Energy Center, LLC % Calpine Corporation P.O. Box 11749 Pleasanton, California 94588-1749 Attn: Asset Optimization 3. On the first business day of December, March, June and September, disburse the amount of all interest accrued and unpaid on the Escrowed Property to Rocky Mountain Energy Center, LLC via bank check mailed to the address set forth in paragraph 2, above. SEP 06 2002 3: 46PM HP LASERJET 3200 p. 25 EXHIBIT 1 DISBURSEMENT CERTIFICATE Wells Fargo Bank West, N.A. Escrow Agent Corporate Trust and Escrow Services MAC C7301-024 1740 Broadway Denver, Colorado 80247 RE: Escrow Agreement # dated August_, 2002 The Board of County Commissioners of Weld County, Colorado ("Board"), acting by and through their authorized representative as identified below, hereby certifies to Wells Fargo Bank West, N.A. ("Escrow Agent") and to Rocky Mountain Energy Center, LLC ("RMEC"), as follows: 1. Attached hereto are true and correct copies of invoices dated on or prior to , 200_ ("Invoices") evidencing costs and expenses incurred by the Board in connection with the performance of its obligations with respect to the grading and/or paving of a certain portion of Weld County Road 51 which is south of the Interstate 76. frontage road, as set forth in that certain agreement entitled "Improvements Agreement (Public Road Improvements)" between the Board and RMEC dated August 13, 2002 ("Agreement"). 2. The amount owed to the Board on account of such Invoices is $ ("Invoice Amount"), and the Board is entitled, pursuant to the terms of the Agreement, to have such amount disbursed to it by the Escrow Agent from the Escrowed Property. 3. The Board requests the Escrow Agent to disburse to it from the Escrowed Property an amount equal to the Invoice Amount in the form of a wire transfer payable to: Wells Fargo Bank West, National Association, Weld County Treasury Collections Clearing Account, Account# 4428004375, ABA # 102000076. Dated: , 200_ Board of County Commissioners Weld County, Colorado By: Name: Title: SEP 06 2002 3: 46PM HP LASERJET 3200 p. 26 EXHIBIT 2 DISBURSEMENT CERTIFICATE Wells Fargo Bank West, N.A. Escrow Agent Corporate Trust and Escrow Services MAC C7301-024 1740 Broadway Denver, Colorado 80247 RE: Escrow Agreement # dated August_, 2002 The Board of County Commissioners of Weld County, Colorado ("Board"), acting by and through their authorized representative as identified below, hereby certifies to Wells Fargo Bank West, N.A. ("Escrow Agent") and to Rocky Mountain Energy Center, LLC ("RMEC"), as follows: 1. The Board has received notice from RMEC of the commencement of commercial operations at the electric power generating facility described in RMEC's application with the Board for a Site Specific Development Plan and Use by Special Review Permit #1339, and the Board has received a final disbursement from the Escrowed Property reimbursing the Board for its final request for reimbursement for its costs and expenses incurred in the performance of its obligations with respect to the grading andlor paving of a certain portion of Weld County Road 51 which is south of the Interstate 76 frontage road, as set forth in that certain agreement entitled "Improvements Agreement (Public Road Improvements)" between the Board and RMEC dated August 13, 2002 ("Agreement"). 2. Pursuant to the terms of the Agreement, any remaining balance of the Escrowed Property following such final disbursement is to be disbursed to RMEC. 3. The Board requests the Escrow Agent to disburse the entire remaining balance of the Escrowed Property (including earned interest) to RMEC in accordance with transfer instructions provided to the Escrow Agent by RMEC. Dated: , 200_ Board of County Commissioners Weld County, Colorado By: Name: Title: HOLLAND & HART LLP ATTORNEYS AT LAW DENVER•ASPEN SUITE 3200 TELEPHONE(303)295-8000 BOULDER•COLORADO SPRINGS 555 SEVENTEENTH STREET FACSIMILE(303)295.8261 DENVER TECH CENTER DENVER,COLORADO 80202-3979 wwwhollandhart.com BUNGS•BOISE MAILING ADDRESS Elizabeth A. Mitchell CHEYENNE•JACKSON HOLE P.O.BOX 8749 (303) 295-8257 SALT LAKE CITY•SANTA FE DENVER,COLORADO 80201-8 74 9 emitchell@hotIandhart.com WASHINGTON,D.C. August 14, 2002 r CSC DEC VIA OVERNIGHT DELIVERY Lee D. Morrison Esq. AUG 1 5 2002 Weld County Attorney's Office _ 915 10th Street WELD COUNTY Greeley, CO 80632 ATTORNEY'S OFFICE Re: Rocky Mountain Energy Center, LLC - Use by Special Review Permit No. 1339 Dear Lee: I enclose for approval and execution by Weld County three sets of the following Agreements: 1. Agreement regarding Weld County Road 51/Burlington Northern & Santa Fe Railway Grade Crossing; 2. County of Weld, State of Colorado Road Maintenance Agreement (Weld County Road 51, north of U.S. Highway 34); 3. County of Weld, State of Colorado Road Maintenance Agreement (Weld County Road 51, south of I-76 frontage road and north of Colorado Highway 52; and 4. Improvements Agreement (Public Road Improvements). Once the Agreements have been approved and executed by Weld County, I would appreciate it if you would return two sets of the executed Agreements to me. Thank you for your assistance in negotiating and finalizing these Agreements during the past few months. Sincerely, Eliz bet h A. Nil fo olland & Hart LLP EAM:jj Enclosures cc: David D. Perkins (w/enclosures) 2975734_I.DOC 2002-2288 PL/580), Hello