HomeMy WebLinkAboutC03-002 Remonov and Company~w
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PUBLIC IMPROVEMENTS
AGREEMENT
EDWARDS CORNER
Parcel 15, Remonov Center
File No. ZS-00088
' THIS PUBLIC IlVIPROVEMENTS AGREEMENT ("Agreement")made and entered into this
;?®''c day of ~~ , 2002, by and between Remonov and Company, Inc. (hereinafter
"Developer") and the Board of County Commissioners of the County of Eagle, State of Colorado
(hereinafter "County").
WITNESSETH
WHEREAS, the Developer, as a condition of approval of the Edwards Corner Special Use
Permit, File No. ZS-00088, requiring the Amended Final Plat, Parce115, Remonov Center, desires
an Agreement as provided for by the Land Use Regulations of Eagle County, Colorado, 1999, as
amended ("hereinafter referred to as "Land Use Regulations") Chapter II, Section 5-250; and
WHEREAS, pursuant to the same authority, the Developer is obligated to provide security
or collateral sufficient in the judgment of the County to make reasonable provisions for completion
of certain public improvements hereinafter described ("Public Improvements"); and
WHEREAS, pursuant to Article IV, Section 4-610 ofthe Land Use Regulations, development
in the unincorporated areas of Eagle County shall be planned and designed, or under the direct
supervision of a Professional Engineer; and
WHEREAS, as a further condition of approval of the final plat of this Special Use Permit,
the Developer is obligated to provide security and collateral sufficient in the judgment of the County
to make reasonable provision for completion of the Public Improvements; and
NOW, THEREFORE, in consideration of the premises and the covenants and agreements
herein contained to be kept and performed by the parties hereto, it is hereby understood and agreed
as follows:
1. PUBLIC IlVIPROVEMENTS.
1.1 Public Improvements. Public Improvements are deemed to include all public
improvements related to this development on and off-site.
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1.2 Scope of Work. The Developer hereby agrees, at its sole cost and expense, to furnish
all necessary equipment and material, and to complete all Public Improvements as referenced in the
attached Exhibit "A", and as set forth in all documents, construction drawings, designs, maps,
specifications, sketches, and other materials submitted by the Developer prior to or at final plat
approval and accepted by the County, and in accordance with all laws of the United States of
America, State of Colorado, County of Eagle, and their respective agencies and affected
governmental entities. Such performance shall include acquisition of all necessary rights-of--way.
1.3 Duties of DeveloQer. For those Public Improvements required herein, including but not
limited to the reconstruction and physical improvements of that portion of any road subject to this
Agreement, the Developer shall retain an engineer whose duties shall include construction staking,
observation of construction for conformance to the approved plans and specifications, and materials
sampling, testing and inspection using the Colorado Department of Transportation 2001 Field
Materials Manual as a guide for frequency of sampling and testing
1.3.1 Construction Staking. Where applicable and by way of example only, the
following is a highlighting of the construction staking that will be required of the Developer:
a. Roadway -horizontal and vertical control every 50 feet or every 25 feet in
critical areas, specifically including:
-slope staking
-points of curvature
-points of tangency
-fillet radius points
-culverts
-transition points for super-elevation
-finished sub-grade ,
-finished gravel
b. Water, Sewer, and Other Utilities -horizontal and vertical control every
100 feet, or every 50 feet in critical areas.
1.3.2 Testing. Where applicable and by way of example only, the following is a
highlighting of the acceptance testing that will be required of the Developer:
a. Utility and drainage culvert trench backfill under roadwayprisms -one
density test per 200 C.Y. of backfill or a minimum of one test per roadway
crossing. This will require daily visits to the site by a testing laboratory when
utilities or drainage culverts are being backfilled within the roadway prism.
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b. Embankments for roadways -one density test per 2,000 C.Y. of any
additional embankment(s); and one density test per 500 C.Y. when within
100 feet of bridge approaches."
c. Finished sub-grade -one density test per 2501ineal feet of roadway.
d. Aggrres?ate base course -one in-place density per 250 lineal feet of
roadway, and gradation and Atterberg Limits test per 2000 tons of aggregate
base course.
e. Hot Bituminous Pavement -two asphalt content, gradation and in-place
density tests per day's production.
f. Concrete -Curb and Gutter, Sidewalks and Bikepaths -tests for air
content, slump and compressive strength per 50 C.Y. of concrete placed or
minimum of one set of tests per day.
1.3.3 Notification/Road Construction. Developer or his Engineer shall notify the
Eagle County Engineer for the purpose ofarranging an on-site inspection no less than twenty-four
(24) hours in advance of the following stages of road construction:
1) Finished subgrade
2) Finished Aggregate Base Course
3) Asphalt Placement
4) Concrete -curb and gutter, sidewalks and bikepaths
The County Engineer shall make an on-site visit within twenty-four (24) hours notification
or as shortly thereafter as reasonably possible for the purpose of observing proof rolls on items 1)
and 2) above and for general observation of construction methods being employed at these stages.
Said on-site inspection by the Eagle County Engineer shall in no way abrogate the duties of the
Developer as outlined elsewhere in this Agreement. The Developer shall provide the proof rolling
by arranging for a loaded single unit truck carrying 18,000 pounds per rear axle.
1.3.4 Witnessing of Water and Sewer Laterals. It is essential that the ends of these
laterals be witnessed by the Developer's engineer to a minimum of three divergent points and a
permanent record made of the same. Copies of these records are required to be furnished to the
Eagle County Engineer prior to commencement of the two year warranty period and the final release
of collateral. In addition to witnessing of the horizontal location of these laterals, a vertical witness
shall be required. Horizontal witnessing shall be to property corners, fire hydrants, manholes, and
other "permanent" features. Vertical witnessing shall be based on depth below ground and elevation
based on a datum used for the project. Bench marks shall be shown on witness records.
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1.3.5 Test Reports. All test reports shall be consecutively numbered, with copies
furnished directly to the Eagle County Engineer from the laboratory as they are reported to the
Developer or its engineer.
1.3.6 Record Drawings of Public Improvements. Record drawings, sealed, signed
and dated by a Registered Professional Engineer showing the as-constructed horizontal and vertical
locations of Public Improvements shall be submitted to the Eagle County Engineer prior to
commencement of the two year warranty period and the final release of Collateral by the County.
1.3.7 Affidavit of Mouumentation. An Affidavit of Monumentation sealed, signed
and dated by a Registered Professional Land Surveyor stating that Edwards Comer, Parcel 15,
Remonov Center has been monumented in accordance with §38-51-105, C.R.S., shall be provided
to the Eagle County Engineer prior to the acceptance of the Public Improvements by the County.
1.4 Compliance with Colorado Department of Highways Access Code. Developer shall
provide the County with designs in compliance with the Colorado Department of Highways Access
Code for all road improvements.
1.5 Date of Com len tion• All Public Improvements shall be completed prior to
December 31, 2003.
1.6 Approval and Acceptance of Work.
1.6.1 Copies of all test results corresponding to work which is being inspected and
any other information which may be necessary to establish the satisfactory completion of the work
for which inspection is requested must be submitted prior to said inspection. All such information
shall be accompanied by a letter from the Developer's engineer verifying the satisfactory completion
of the work performed to date.
1.6.2 Notwithstanding Section 1.3.3 above, promptly after receiving a request for
inspection and the required documentation, the County Engineer shall review the information
presented and, if necessary, make an Public inspection of the work completed.
1.6.3 All said work shall be done to the reasonable satisfaction of the County
Engineer and/or the County Department of Community Development, and shall not be deemed
complete until approved and accepted as complete by the County.
1.7 Estimated Costs of Public Improvements. The estimated cost of the Public Improve-
ments is the sum of $394,006.25, as summarized in Exhibit "A". To secure and guarantee
performance of its obligations as set forth in this Section 1, including the completion of the required
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Public Improvements, the Developer hereby agrees to provide security and collateral in the form and
as set forth in Section 2, below.
1.8 Landscape Guarantee. Developer agrees to submit a landscaping plan, prior to approval
of final plat, for Edwards Corner which will comply with Section 4-240, Installation and
Maintenance Requirements. The Developer agrees to abide by the Landscape Plan approved by the
County Department of Community Development.
2. SECURITY and COLLATERAL.
2.1 Collateral. Security and Collateral required in Section 1.7 herein, as security for the
performance by Developer of its obligations under this Agreement, shall be in the total amount of
$394,006.25. The Developer shall obtain collateral in such form acceptable to the County
("Collateral") prior to signing the Final Plat, as specified in attached Exhibit `B".
2.2 Partial Release of Collateral. Developer may apply to the County for the release of
portions of the Collateral based upon work completed in accordance with this Agreement. To make
such releases, Developer shall request the County Engineer to inspect the work in order to verify
satisfactory completion in accordance with plans and specifications in accordance with Section 1.6.
2.3 Final Release of CollateraUWarranty. Within thirty (30) days after Developer has
completed all of the work required by this Agreement and the work has been approved and accepted
by the County, the entire remaining amount of the Collateral, less an amount equal to ten percent
(10%) of the original Collateral, shall be released. Developer shall be responsible for the condition
of the Public Improvements for a period of two (2) years after completion; this shall be guaranteed
either through the retention of Collateral, as set forth above, or Developer may provide a guarantee
bond in an amount and in a form acceptable to the County -which would be substituted for the
release of the entire amount of the Collateral.
2.4 Substitution of Collateral. The Developer may at any time substitute the Collateral
originally deposited with the County herein, for another form of collateral acceptable to the County,
to guarantee the faithful completion of the Public Improvements referred to herein and the
performance of the terms of this Agreement. At the time of substitution of collateral, an inflationary
and/or deflationary factor based upon the Denver-Boulder, Colorado Consumer Price Index for All
Urban Consumers, All Items (1967=100) published by the U.S. Bureau of Labor Statistics, 303-837-
2467, or, alternatively, an approved construction cost index, shall be used to determine an adjusted
estimated cost for all Public Improvements as described herein, and collateral shall be submitted by
the Developer in accordance therewith.
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2.5 Draws. Draws against the Collateral shall only be made as directed by written
Resolution of the County, stating that there has been an event of default under this Agreement and
that a sum certain is required to remedy the default. Any amount drawn on the Collateral must be
applied for the purpose of completing the work required by this Agreement and related expenses and
costs.
2.6 Events of Default. The following events shall be deemed "Events of Default," entitling
the County to draw on the Collateral:
2.6.1 If Developer has not completed the work required by this Agreement within
thirty (30) days prior to the Date of Completion set forth herein, the County may, after ten (10)
working days written Notice to Developer, draw upon the Collateral an amount sufficient to
complete said work and compensate the County for its reasonable costs and expenses related to said
draw.
2.6.2 If the original collateral presented to the County (or any extension thereof) is
due to expire and the work is not yet completed, and Developer has not provided substitute collateral
or the bank's written extension to the original collateral (as it may have been previously extended),
the County shall draw on the Collateral according to the provisions set forth in this Section 2. It is
Develo~er,'s responsibility, with or without notice, to ensure that the Collateral is extended, or
that substitute collateral is provided in a form acceptable to the County, at least ten days prior
to its expiration. If Collateral is neither extended nor substitute collateral provided, in a form
acceptable to the County, at least ten days prior to its expiration, the Developer shall pay the
County an additional $500 (Five hundred dollars) for the additional administrative work
required because of the failure to extend or substitute collateral in a timely manner as required
by this agreement.
2.6.3 If the Collateral is substituted, as otherwise provided herein, this Agreement
maybe amended or modified in order to set forth specific Events of Default deemed necessary, in
the County's sole discretion, commensurate with the type of collateral substituted.
2.7 Costs and Expenses. Developer agrees to pay any costs and expenses, including but not
limited to legal fees, which the County may incur in determining to accept collateral, in drawing
upon the Collateral, or in accomplishing an extension of its expiration.
2.8 Landscape Plan Collateral.
2.8.1 Developer agrees to provide collateral in a form acceptable to the County
Attorney to ensure landscaping will be installed. Developer agrees to provide collateral for no less
than one hundred and twenty-five (125) percent of the estimated cost of the landscaping
improvements listed in the Landscape Plan.
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2.8.2 As portions of the landscape improvements are completed, the Community
Development Director shall inspect them, and upon approval and acceptance, shall authorize the
release of the agreed estimated cost for that portion of the improvements, except that the (10) percent
shall be withheld until all proposed improvements are completed and approved, and an additional
twenty-five (25) percent shall be retained until the improvements have been maintained in a
satisfactory condition for two (2) years.
3. INSURANCE and INDEMNIFICATION.
3.1 Certificates of Insurance. The Developer shall secure from any contractor or
subcontractor engaged in the work necessary to comply with this Agreement a Certificate of
Insurance providing for liability protection in the minimum amount of $150,000 per individual and
$600,000 per occurrence, naming the County as an additionally named insured. The Developer, if
it serves as the contractor for the Public Improvements, shall provide insurance in the same form and
amounts as required of the general contractor. Said limits shall be adjusted to comply with any
changed limits in the Colorado Governmental Immunity Act, Title 24, Article 10, Colorado Revised
Statutes.
3.2 County Incurs No Liability. The County shall not, nor shall any officer or employee
thereof, be liable or responsible for any accident, loss or damage happening or occurring to the
Edwards Comers or Public Improvements specified in this Agreement prior to the completion and
acceptance of the same; nor shall the County, nor any officer or employee thereof, be liable for any
persons or property injured or damaged by reasons of the nature of said work on the Public
Improvements, but all of said liabilities shall be and are hereby assumed by the Developer. The
Developer hereby agrees to indemnify and hold harmless the County and any of its officers, agents
and employees against any losses, claims, damages or liabilities for which the County or any of its
officers, agents, or employees may become subject to, insofar as any such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any performance by the
Developer hereunder; and the Developer shall reimburse the County for any and all legal and other
expenses incurred by the County in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity provision shall be in addition to any other liability which
the Developer may have.
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4. GENERAL PROVISIONS.
The following shall apply to all Public Improvements, including off-site improvements, set forth in
this Agreement:
4.1 Compliance with Land Use Re ations. The Developer shall be required to obtain all
necessary permits and comply with the provisions of the Land Use Regulations, including but not
limited to the Regulations for Construction within the Public Ways of Eagle County (Chapter V),
as the same are in effect at the time of commencement of construction of the Public Improvements
referred to herein.
4.2 Public Improvement Agreement Controls. In the event of any inconsistency or incon-
gruitybetweenthe provisions of this Agreement and the band Use Regulations, the provisions of this
Agreement shall in all respects govern and control.
4.3 Warranties and Guarantees. There shall be atwo-year correction period, or such longer
period as may be prescribed by law, from the time of completion of the Public Improvements during
which time the Developer shall promptly correct or remove and replace, in accordance with the
County's written instructions, defective work or materials and consequences thereof. Repair or
replacement made under the two-year correction period shall bear an additional one-year correction
period from the acceptance of the repair or the replacement by the Eagle County Engineer. The work
shall be collateralized during the correction period in an amount and type of collateral as shall be
reasonably determined by the County. The work shall be inspected, at the request of the Developer
no less than sixty (60) days prior to expiration of the one-year additional correction period, and any
deficiencies shall be noted to the Developer.
4.4 Approval of Final Plat. The County agrees to the approval of the amended final plat,
Parcel 15, Remonov Center, File No. AFP-00137, subject to the terms and conditions of this
Agreement and the Special Use Permit, File No. ZS-00088.
4.4.1 Final Plat Amendments. Where field changes or other circumstances have
caused the road, utilities, or other public improvements to be constructed in locations different from
those shown on the approved plans, the locations ofrights-of--way, easements, lot lines, building
envelopes, setback lines, or other attributes shown on the Amended Final Plat shall be amended as
necessary to comply with Final Plat requirements of the Eagle County Land Use Regulations
4.5 Amendment and Modification. The parties hereto mutually agree that this Agreement
maybe amended or modified from time to time, provided that such amendment or modification be
in writing and signed by all parties hereto.
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4.6 Assignabilitv. This Agreement shall be enforceable against the Developer, provided,
however, that in the event the Developer sells, transfers or assigns all or part of the subj ect property,
the obligations of the Developer under this Agreement as to that portion of the subj ect property may
be assumed in writing by the purchaser of the pazcel, and the Developer shall have no further
obligations hereunder. It is agreed, however, that no such assumption of these obligations shall be
effective unless the County gives its prior written approval to such assumption following an
investigation of the financial condition of the purchaser. The Developer shall not otherwise assign,
transfer, convey, pledge or otherwise dispose of this Agreement without prior written consent of the
County, which consent shall not be unreasonably withheld.
4.7 Binding upon Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their respective successors, and assigns.
4.8 Sole Responsibility of Developer Prior to County Acce to ance. It is further agreed and
understood that at all times prior to the completion and acceptance of the Public Improvements set
forth herein by the County, each of said improvements not accepted as complete shall be under the
sole responsibility and chazge of the Developer. When it is necessary to allow the general public to
utilize the roadways under construction by the Developer, traffic control and warning devices shall
be placed upon such roadways by the Developer in accordance with the Manual on Uniform Traffic
Control Devices for Streets and Highways as prepazed by the U.S. Department of Transportation,
Federal Highway Administration.
4.9 No Rights to Third Parties. This Agreement does not and shall not be deemed to confer
upon or grant to any third party any right to claim damages or to bring any lawsuit, action or other
proceedings against either the County or its officers, employees or agents because of any breach
hereof or because of any terms, covenants, agreements or conditions contained herein.
4.10 Notice. Notice required pursuant to the terms of this Agreement shall be deemed given
on the day that the same is placed in the United States Mails, postage prepaid, certified or registered
mail, return receipt requested.
4.11 Enforcement and Attorney Fees. The County may enforce the provisions of this
Agreement in the same manner and with the same remedies applicable to the enforcement of land
use regulations pursuant to the Eagle County Land Use Regulations, as they maybe amended from
time to time, or as otherwise provided by law. Alternatively, the terms of this Agreement maybe
enforceable by the Boazd or its designee by any appropriate equitable or legal action, including but
not limited to specific performance, mandamus, abatement, or injunction. The remedies explicitly
provided herein aze cumulative, and not exclusive, of all other remedies provided by law. The
prevailing party in any action brought pertaining to this Agreement shall be entitled to an awazd of
costs and reasonable attorney's fees
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IN SS WHEREOF, the parties hereto have executed this Agreement this
day of ~ adO3
COUNTY OF EAGLE, STATE OF COLORADO,
ATTEST:
By and Through Its
BOARD OF~OUNTY COMNIISSIONERS
1Q~~~~IUC1~N~
Chairman Pap - TG~K
Address for giving notice:
P.O. BOX 850
Eagle, CO 81631
(970) 328-8685
DEVELOPER:
Remonov and ompany, Inc.
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By:
Address for giving notice:
P.O. Box 1118
Edwards, CO 81632
STATE OF COLORADO )
SS
County of C~-y L e )
pp The foregoing was cknowledged before me this ~o ~ day of
~(u-r~ ~a e Ll~ , as ~~ of /Pima.,-rurr~~.•, a
WITNESS my hand and official seal.
My commission expires ~-~~~ ~~
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2002, by
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File No. G-2002-062
County Commissioners
11/04/2002 11:21 FAR 9704788616
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Edwards Comer
PubtiC Improvements
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. BUSINESS BANK OF THE ROCKIES
IRREVOCABLE LETTER OF CREDIT
Colorado Business Bank, N.A.
821 1.7~' Street
Denver, CO 80202
Irrevocable Letter of Credit Date: 12/06/02
Number: 101102-1-101103
Board of County Commissioners
County of Eagle
State of Colorado
P.O. Box 850
Eagle, CO 81631
To Whom It May Concern:
We hereby open our irrevocable Letter of Credit in your favor, available by draft at sight
drawn on Colorado Business Bank, N.A. for an~~ sum or sums not exceeding in total the
sum of $394,006.25.
For the account of Remonov & Company, Inc., P.O.. Box 1888, Edwards, CO 81632.
For the purpose of guaranteeing construction of public improvements required by the
County of Eagle, State of olorado, pursuant to that certain Subdivision Improvements
819827
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Agreement dated, Zd , 2002, between the County of Eagle, State of _
Colorado, and Remonov Company, Inc., relative to the Edwards Comer Subdivsion.
Each draft drawn on Colorado Business Bank, N.A. sight shall be endorsed on the reverse
side of this Letter of Credit and beaz upon its face "Drawn under Letter of Credit Number
101102-1-101103, dated ~~_, of Colorado Business Bank, N.A.", and shall be
accompanied by a Resoluti n f the Board of County Commissioners of Eagle County
certifying 1.) that there has been a default under the Subdivision Improvements
Agreement, and 2.) that a sum certain is required to remedy the default.
439 Edwards Access Road, Edwards, Colorado 81632
Post Office Box 2826, Edwards, Colorado 81632
(970) 926-6801 (970) 926-6806 Fax
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.,
Colorado Business Bank, N.A. agrees with the drawers, endorsers and bonafide holders
of drafts drawn and negotiated in compliance with the terms of the Letter of Credit that
such drafts will be duly honored upon due presentation at the counter of this bank.
Colorado Business Bank, N.A. represents and warrants to the County of Eagle that it has
the full authority and power to issue this Letter of Credit to the County of Eagle, State of
Colorado, in the total amount and for the period of time stated herein; said authority
being pursuant to the laws of the United States, or the State or territory which governs the
establishment and regulation of Colorado Business Bank charter, by-laws and other
applicable rules and regulations adopted pursuant thereto. Should it be necessary for the
County of Eagle to file suit in an effort to enforce this irrevocable Letter of Credit,
Colorado Business Bank, N.A. hereby waives all venue rights and submits to the
jurisdiction of the District Court in and for the County of Eagle, State of Colorado.
All drafts hereunder must be drawn on or before December 31, 2003.
Very truly yours,
olo Business Bank, N.A.
By:
Phi ~p .Hancock, Vice President
Att
Randal an, President
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