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EXHIBIT 10(ii)
Must be Executed by Property Owner and
Developer and Returned to the District
on or Before: 12/08/2000 Agreement No. 106298
CONSTRUCTION AGREEMENT
THIS AGREEMENT, made and entered into by and between the Las Vegas Valley
Water District, a quasi-municipal corporation of the State of Nevada,
hereinafter called "District", Party of the First Part, and FITZGERALDS LAS
VEGAS, INC., whose address is 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000,
hereinafter called "Property Owner", Party of the Second Part, and E-THREE
CUSTOM ENERGY SOLUTIONS, LLC, whose address is 0000 X. Xxxxxx Xxxxxx, Xxxxx
X000, Xxx Xxxxx, XX 00000, hereinafter called "Developer", Party of the Third
Part, WITNESSETH:
RECITALS
WHEREAS, District is engaged in the business of distributing potable
water in the City of Las Vegas, Nevada, and portions of the County of Xxxxx,
State of Nevada; and
WHEREAS, Property Owner is the owner of property generally located on the
xxxxxxxxx xxxxxx xx Xxxxxx Xxxxxx and 4th Street, and further referenced as
Xxxxx County Assessors Parcel Numbers 139-34-610-038 and 139-34-610-039; and
WHEREAS, Developer is engaged in the development of the above-described
real property and is desirous of installing water facilities to said property;
and
WHEREAS, District is willing to permit the installation of water
facilities with the understanding that there is no commitment for future water
service granted under this Agreement; and
WHEREAS, Developer is willing to construct at its sole cost and expense
the water facility(s) and appurtenances.
Now, this Agreement WITNESSETH:
ARTICLE I
DEVELOPER AND PROPERTY OWNER AGREE:
1. At Developer's sole cost and expense to furnish all necessary materials,
labor, and equipment for the construction of the water main(s), fire hydrants
and laterals, service connections, backflow prevention assemblies, and
appurtenances, from the main to the point where the water being delivered
leaves the piping owned by the District hereinafter called "water facilities",
shown on that certain plan or plans, entitled:
CITY CENTER CHILLER PLANT
Utility Plan
2. That said water facilities shall be constructed in the locations shown,
and in accordance with the above-mentioned plan or plans, as approved by the
District, and in conformance with District specifications.
3. That all work shall be subject to inspection by an authorized
representative of the District and the District shall be notified sufficiently
in advance of any work to be undertaken, in order that necessary inspection can
be arranged.
4. To comply with the District's Service Rules that are in force on the
effective date of this Agreement including those sections pertaining to the
water commitment process and construction of the water facilities identified in
Article I, paragraph 1 above.
5. At Developer's sole cost and expense, to perform all survey work
necessary to ensure installation of the water facilities at the location and to
the grades called for in the plans.
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Agreement No. 106298
6. At Developer's sole cost and expense, to disinfect and pressure test
all water facilities to the satisfaction of the District and the health
authorities having jurisdiction.
7. That connections to existing mains shall be made only in the presence
of an authorized representative of the District and at the times specified by
the District.
8. That all water facilities shall be located outside of driveways,
driveway approaches, or other areas subject to vehicular traffic. In the event
any water facilities are located within those areas either inadvertently or
otherwise, the Developer shall cause such water facilities to be relocated
outside of the driveways, driveway approaches or other areas described above,
in accordance with District's requirements, or shall reimburse the District for
the cost of relocating said water facilities. If extraordinary conditions exist
that would prevent compliance with this requirement, Developer may submit to
the District a written request for a waiver of this requirement pursuant to the
District's Service Rules.
9. To furnish to the District easements, in a form satisfactory to the
District, where water facilities are approved to be installed in other than
dedicated streets or alleys. Said easements to be not less than twenty (20) feet
in width and perpetual. The conditions of said easements shall be such that no
building, structures, trees, shrubs, or other improvements which would interfere
with its use by District can be placed upon it, that District will have the
right to operate, maintain, repair, replace, and/or change the size and/or
number of water facilities; and that proper access to all parts of the easement
by District forces and equipment is provided. The conditions of said easements
shall further provide that the property owner agrees to pay any and all costs
incurred by the District to make and/or maintain said easements accessible to
the District. It may be provided that other utility lines can be installed in
said easement, so long as they do not interfere with its use by District, and
are in compliance with state laws and regulations.
10. Should any defective material or workmanship affecting the water
facilities installed by Developer be disclosed within one (1) year of the date
of completion and acceptance of the water facilities by the District, Developer
shall immediately cause the defect to be corrected, or shall reimburse District
for its cost to correct said defect. For the purpose of this Agreement,
failures including, but not limited to, any leak or break in the water
facilities, or any pavement settlement, shall be considered conclusive evidence
of defective materials and/or workmanship. Any corrective actions by Developer
shall themselves be warranted for a one (1) year period. If the Developer fails
to reimburse District for cost of repairs, subsequent projects will not be
approved until all reimbursements are paid.
11. That upon completion of construction of the work and acceptance of
the work by the District, to furnish a Xxxx of Sale for the water facilities
identified in Article I, paragraph 1 above, conveying to the District all
rights, title, and interest in all the water facilities and to certify that the
water facilities will be free of liens and other encumbrances.
12. That any of the water facilities installed under this Agreement, once
disinfected and tested to the satisfaction of the District and once connected
to existing District facilities, may be used by the District to deliver water
to real property other than that of the Property Owner.
13. To indemnify, defend and hold the District harmless from any and all
claims, demands, liens, actions, damages, costs, expenses and attorneys' fees
based upon or arising out of alleged acts or omissions of the Developer,
Property Owner, or its officers, employees, agents, contractors, licensees or
invitees during the construction and installation of the water facilities. As
a material part of the consideration for this Agreement, the Developer and
Property Owner hereby assumes all risk of injury to persons and damage to
property resulting from the construction of the water facilities from any
source and to whomever belonging, except to the extent caused by willful or
negligent acts of the District or its agents and hereby waives all claims in
respect thereof against the District and agrees to defend and hold the District
harmless from and against any such claims by others. The District shall not be
liable or responsible for the loss of or damage to any of the Developer or
Property Owner's property, or that of its employees, customers or invitees,
resulting from burglary, theft or vandalism; nor shall the District be liable
for loss of or damage or injury to persons or property occurring during the
construction of the water facilities for any cause, or under any
circumstances, except to the extent caused by or resulting from the willful or
negligent acts of the District or its agents.
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Agreement No. 106298
14. That all water delivered through the service connections will be
metered and the developer is responsible for all bills for water until such
time as the first occupant activates the water service account with the
District's Customer Service Division.
15. If the District discovers that water is being taken through an
unmetered service connection, the Developer shall pay, within twenty days from
the billing date, the District's xxxx for estimated quantities of water taken,
as determined solely and exclusively by the District. The Developer understands
that payment under this section does not act as a defense to any criminal
violations he may be charged with for the taking of water.
16. That installation of said water facilities does not assure or
guarantee that a complete water service will be available in the future. Until
such time as a complete service connection is approved by the District and a
water commitment is obtained, no water may be taken from the water facilities
installed under this agreement. This agreement does not grant Developer or
Property Owner any property right in a water service to the subject property.
Developer and Property Owner further agrees to be bound by any current or
future water commitment regulation which the District may establish.
17. That the Developer, Property Owner, and their officers, employees,
agents, contractors, licensees or invitees, at the Developer's and Property
Owner's sole cost and expense, shall at all times comply with all applicable
laws, ordinances, statutes, rules, acts or regulations in effect or that become
in effect during the time work is performed under this Agreement, including but
not limited to those laws outlined by the Endangered Species Act of 1973 and
The Xxxxx County Desert Conservation Plan, August 1, 1995.
18. That the Developer is fully responsible for ensuring no harm comes to
any tortoises found on the work site, unless it is unavoidable. Tortoises will
not be intentionally killed, harmed or taken for private use. In the event that
a desert tortoise is encountered on the work site, the Xxxxx County Pick-up
Service shall be called at (000) 000-0000.
19. That in the event of abandonment or cessation of construction of the
water facilities for one year, prepaid installation fees and other charges may
be used by the District to pursue completion of all or part of the water
facilities as provided in the District Service Rules.
20. That at such time as the District accepts and approves an application
for water service to said real property, the Developer will be required to pay
all applicable fees, charges and deposits in accordance with the Service Rules
that are in effect at the time the application for water service is approved.
21. That the Developer or his successors and assigns will make a separate
application for water service from the water facilities described in Article I,
paragraph 1 above in accordance with the District's Service Rules in effect at
that time.
22. The District, its officers and employees shall be immune for any
breach of this Agreement caused by an incorrect date being produced, calculated
or generated by a computer or other information system that is owned or
operated by the District, its officers or employees, regardless of the cause of
the error (reference NRS 41.0321).
ARTICLE II
DISTRICT AGREES:
1. That upon completion of construction of the water facilities,
acceptance of same by the District, and fulfillment by the Developer and
Property Owner of all requirements of this Agreement to operate and maintain
the water facilities installed pursuant to this Agreement in accordance with
the District's Service Rules as the same are established and amended.
2. That construction water may be provided through metered fire hydrants
in accordance with the District's Service Rules.
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Agreement No. 106298
ARTICLE III
IT IS MUTUALLY AGREED:
1. The above described property shall have no water commitment by virtue
of the installation of the water facilities. Future use of said facilities
requires that a water commitment be obtained from the District before the
facilities can be utilized.
2. That this Agreement shall inure to the benefit of, and be binding
upon, the respective parties hereto and their successors and assigns.
Assignments must be completed on forms provided by the District, and a fully
executed original must be provided to the District.
3. That the effective date of this Agreement is the date that the
Agreement is formally executed by the District.
4. That this Agreement shall terminate if construction of the water
facilities covered by the plan or plans identified in Article I, paragraph 1
of this Agreement is not started within one (1) year from the date of District
approval of said plan or plans; or if such construction is commenced within
said one (1) year period, but is not diligently prosecuted to completion within
2 years from the date of the plan approved. Termination under this paragraph
shall occur upon the District's written notice that Developer has not followed
the conditions of this Agreement.
5. That all water facilities installed under this Agreement shall be and
remain the exclusive property of the District, and shall become a part of the
District's general water distribution system after acceptance by the District.
6. That if this Agreement terminates in accordance with Article III,
paragraph 4 of this Agreement, right, title and interest of all or any portion
of water facilities installed, as determined solely and exclusively by the
District, shall become the exclusive property of the District for the District
to use, modify, or to dispose of as the District deems appropriate.
7. That in the event a portion of the water facilities are constructed
but this agreement terminates, the above described property shall have no water
commitment by virtue of the installation of the water facilities. Requests for
future use of said facilities, if retained in place, may require that a new
water commitment be obtained before the facilities can be utilized.
8. That for the purpose of making refunds or any notifications that may
be required by this Agreement, the Developer's address and Property Owner's
address are as identified on page 1 of this Agreement, and it is the
Developer's and Property Owner's responsibility to notify the District in
writing of a change in address.
9. That noncompliance or violation of the District's Service Rules or
any provision of this Agreement by Developer or its officers, employees,
agents, contractors, licensees or invitees shall be cause for the District, at
its sole discretion, to revoke construction approval of the water facilities
without challenge by Developer and without liability for any damages caused by
said revocation.
10. That all parties are acquainted with the provisions of the applicable
District Service Rules in force on the effective date of this Agreement.
11. That failure of the District to enforce any provision of this
Agreement shall not constitute a waiver by the District, and the District may
choose to enforce any breach of this Agreement at any time.
12. That this agreement may be recorded by the District as an "Official
Record" in the office of the Recorder for Xxxxx County, Nevada.
13. This Agreement is intended solely for the benefit of the District and
Developer and is not intended to benefit, either directly or indirectly, any
third party or member(s) of the public at large. Any promise by the District to
refund connection charges to Developer is solely for the benefit of the
Developer.
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14. The laws of the State of Nevada shall govern as to the
interpretation, validity and effect of this Agreement.
15. That each party hereto warrants to the other that it, and its
signatory hereunder, it duly authorized and empowered to execute this Agreement
and to bind said party to the terms of this Agreement.
IN WITNESS WHEREOF, the Property Owner has executed this Agreement on the
____ day of ________,_____.
PROPERTY OWNER:
Fitzgeralds Las Vegas, Inc.
/s/ XXXXXXX X. XXXXXX III
---------------------------------------------------------
Xxxxxxx X. Xxxxxx III, Vice President and General Manager
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
On 1/4/2000, before me, the undersigned, a NOTARY PUBLIC, in and for said
County and State, personally appeared Xxxxxxx X. Xxxxxx known to me to be the
person described in and who executed the foregoing instrument and who
acknowledged to me that he executed the same freely and voluntarily and for the
uses and purposes therein mentioned.
WITNESS my hand and official seal.
[SEAL]
Notary Public - State of Nevada
COUNTY OF XXXXX
XXX X. XXXXXX
My Appointment Expires
September 23, 2001
/s/ XXX X. XXXXXX
----------------------------- ------------------------------
Notary Stamp/Seal Notary Public
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Agreement No. 106298
IN WITNESS WHEREOF, the Developer has executed this Agreement on the 5th
day of January, 2000.
DEVELOPER:
e-Three Custom Energy Solutions, LLC
/s/ XXXXXX X. BOSS
--------------------------------------
Xxxxxx Xxxx, Manager
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
On January 5th, 2000, before me, the undersigned, a NOTARY PUBLIC, in and
for said County and State, personally appeared Xxxxxx X. Boss known to me to be
the person described in and who executed the foregoing instrument, and who
acknowledged to me that_he_executed the same freely and voluntarily and for the
uses and purposes therein mentioned.
WITNESS my hand and official seal.
[SEAL]
Notary Public - State of Nevada Xxxxx X. Xxxxxx
COUNTY OF XXXXX -------------------------------
XXXXX X. XXXXXX Notary Public
My Appointment Expires
July 19, 2000
--------------------------------
Notary Stamp/Seal
THIS AGREEMENT shall be in full force and effect as of the 8th day of
February, 2000, when it was duly signed by the proper officer of the Las Vegas
Valley Water District.
ATTEST: LAS VEGAS VALLEY WATER DISTRICT
/s/ [Illegible] /s/ [Illegible]
---------------------------- ---------------------------------
Assistant Secretary Secretary
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