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HomeMy WebLinkAboutC03-244 Colorado Mountain CollegeC~o.~- a YS~ s/ .` ~ !. AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND COLORADO MOUNTAIN COLLEGE CONCERNING IMPROVEMENTS WITHIN THE RIGHT OF WAY ON MILLER RANCH ROAD, EAGLE COUNTY, COLORADO THIS AGREEMENT (the "Agreement") is made and entered into this ~ day of August, 2003 by and between Colorado Mountain College (hereinafter "CMC") and Eagle County, Colorado, a body corporate and politic, (hereinafter "County"). WITNESSETH WHEREAS, pursuant to Article 5.06.01 of the Eagle County Land Use Regulations (hereinafter "LUR's"), each and every person desiring to perform construction of any kind, in a public way within the County is required to obtain a permit to construct within the public way; and WHEREAS, CMC has applied for two (2) such permits with the County for the construction of certain improvements in Miller Ranch Road on or adjacent to Tract A of Berry Creek/Miller Ranch and within the right of way; and WHEREAS, pursuant to Article 5.09.01 of the LUR's each and every applicant for a permit to construct within the public way (unless exempted by the County) is required to provide the County, at the time of permit issuance, collateral as security for the faithful performance of all provisions of the LUR's and of the permit; and WHEREAS, CMC desires an Agreement with County exempting CMC from the collateral requirement on the aforementioned Work and instead requiring CMC to warrant its Work for a period of two (2) years from date of acceptance by County; and WHEREAS, County and CMC each have the power and authority to enter into this Agreement. AGREEMENT 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. SCOPE OF WORK. CMC has sought two permits from County to construct certain improvements within the public way. Specifically CMC shall construct the following improvements on or adjacent to Tract A of Berry Creek/Miller Ranch within the public right of way of Miller Ranch Road: A. Driveway/Entrance access to the CMC facility; and • • B. Bus Turnout, Ditch Improvements and Connecting Sidewalk; as set forth in all documents, construction drawings, designs, maps, specifications, sketches, cost estimates, and other materials submitted by CMC to County prior to acceptance of such improvements by County. Items A and B above shall be collectively referred to hereinafter as the "Work" and are more fully zeferenced in Eagle County Engineering Department permit numbers 3274 and 3267. 2. COUNTY'S OBLIGATIONS. County agrees to exempt CMC from the collateral requirement (Article 5.09.01, LUR's) for the Work described in Paragraph 1, subject to the conditions and requirements set forth in this Agreement. The parties agree that this Agreement shall not set a precedent or bind County with respect to other requests for waiver of collateral by other statutory junior colleges, school districts, other governmental entities or future requests by CMC. The parties further agree that this Agreement is to facilitate the construction of the improvements described above for the mutual benefit of the parties, and that this Agreement shall not constitute any waiver of CMC's powers under C.R.S. § 23-71-122(1)(v)(I). This Agreement shall not set a precedent or bind CMC with respect to compliance with any Eagle County land use requirements not specifically addressed herein. Notwithstanding the foregoing it is agreed between the parties that there may be provisions of the Eagle County Land Use Regulations not falling within the parameters of C.R.S. § 23-71-122(1)(v)(I) requiring compliance by CMC. 3. CMC'S OBLIGATIONS. CMC agrees to the following: A. CMC shall comply with the requirements of Chapter 5 ECLUR "Regulations for Construction within the Public Way of the Eagle County." B. CMC hereby agrees, at its sole cost and expense, to furnish all necessary equipment and material, and to complete the Work set forth above, as indicated in all documents, construction drawings, designs, maps, specifications, sketches and other materials submitted by CMC to County, and in accordance with all laws, rules, regulations, standards and specifications of the United States of America, State of Colorado, County of Eagle, and their respective agencies and affected governmental entities. C. For the Work required herein, including but not limited to construction or reconstruction and physical improvement of that portion of any road subject to this Agreement, CMC shall retain a Colorado Professional 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 Highways 2001 Field Materials Manual as a guide for frequency of sampling and testing. D. Construction Staking. Where applicable and by way of example only, the following is a highlighting of construction staking that will be required of CMC. i. 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 ii. Testing. Where applicable and by way of example only, the following is a highlighting of the acceptance testing that will be required of CMC. a. Utility and drainage culvert trench backfill under roadway prisms- 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 laboratorty when utilities or drainage culverts are being backfilled within the roadway prism. b. Embankments for roadways-one density test per 2,000C.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. Aggregate base course-one in-place density per 2501ineal 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. D. Notification/Road Construction. CMC or its Engineer shall notify the Eagle County Engineer for the purpose of arranging an on-site inspection no less than forty-eight (48) 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 3 • • The County Engineer shall make an on-site visit within forty-eight (48) hours notification 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 CMC as outlined elsewhere in this Agreement. CMC shall provide the proof rolling by arranging for a loaded single unit truck carrying 18,000 pounds per rear axel. E. 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 CMC or its engineer. 4. Approval and Acceptance of Work. A. 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 CMC's engineer verifying the satisfactory completion of the Work performed to date. B. Notwithstanding 3D 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 on-site inspection of the Work completed. C. All said Work shall be done to the reasonable satisfaction of the County Engineer, and shall not be deemed complete until approved .and accepted as complete by the County. Upon completion of the Work in accordance with applicable plans, specifications and requirements as set forth hereinabove, the County shall promptly thereafter approve and accept the Work in writing, for establishing the commencement of the warranty period provided for in Section 5 below, and otherwise for purposes of this Agreement. Such approval and acceptance maybe issued by the Eagle County Engineer. 5. Warranty. A. CMC shall be responsible for the condition of the Work for a period of two years after acceptance of the Work by the County. There shall be a two year correction period, or such longer period as may be prescribed by law, from the time of acceptance of the Work for warranty purposes, during which time CMC shall promptly correct or remove and replace, in accordance with the County's written instructions, defective or deficient 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 replacement by the Eagle County Engineer. The Work shall be inspected at the request of CMC, no less than sixty (60) days prior to the expiration of the correction period, and any deficiencies shall be noted to CMC for correction. B. CMC warrants that all Work produced under this Agreement will conform to 4 the standards set forth in the Eagle County Land Use Regulations, all applicable industry standards of care, skill and diligence and shall be performed in a good and workmanlike manner and as set forth in this Agreement. All said Work shall be done to the reasonable satisfaction of the-County Engineer, and shall not be deemed complete until approved and accepted as complete by the County. C. In the event that CMC fails to correct or commence correction of any defect or deficiencies within the time required by County in its written instructions, the County may elect to correct any defect or deficiency and CMC shall be obligated to pay all costs and expenses incurred in correcting the defect or deficiency. 6. Sole Responsibility of CMC prior to County Acceptance. It is further agreed and understood that at all times prior to the completion and acceptance of the Work by County, each of said improvements not accepted as complete shall be the sole responsibility and charge of CMC. When it is necessary to allow the general public to utilize the roadways under construction by CMC, traffic control and warning devices shall be placed upon such roadways by CMC in accordance with the Manual on Uniform Traffic Control Devices for Streets and Highways as prepared by the U.S. Department of Transportation, Federal Highway Administration. After completion and acceptance of the Work by the County, the County shall thereafter maintain the improvements within the public right-of--way of Miller Ranch Road in accord with the County's established and customary standards. 7. Indemnification. CMC shall indemnify and hold the County harmless from any and all claims made against County by any contractor, subcontractor, materiahnen, employee, independent contractor, agent or representative involved in the work necessary to comply with this Agreement, or on account of any other claims against the County because of the activities conducted in furtherance of the terms of this Agreement. This indemnification and hold harmless provision shall include any legal expenses or costs incurred by the County. Except as otherwise provided herein, it is further agreed that 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 Work specified in this Agreement prior to the completion and acceptance of the same; nor shall 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, but all said 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 CMC hereunder; and CMC shall reimburse County for any and all legal and other expenses incurred by 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 CMC may have. This indemnity provision shall not include any loss, damage or liability arising out of any negligence or breach of duty on the part of the County or any officer, employee or agent of the County. CMC 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 5 minimum amount of $150,000 per individual and $600,000 per occurrence, naming the County as an additional insured. 8. Assignability. CMC may not assign its obligations hereunder to a third party without the prior written consent of County. 9.Binding upon Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors, and assigns. lO.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. 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 Board or its designee by any appropriate equitable or legal action including but not limited to, specific performance, mandamus, abatement or injunction. The remedes explicitly provided herein are 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 award of costs and reasonable attorney fees. 12. Governing Law and Jurisdiction. This Agreement and all disputes arising hereunder shall be governed by the laws of the State of Colorado and the parties agree that venue and jurisdiction over any claim arising from this Agreement shall lie in the courts of the Fifth Judicial District of Colorado. 13. Severability. It is understood and agreed by and between the parties that if any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, or otherwise appears to be invalid, such invalidity shall not affect the validity of any other covenant, condition or provision herein contained; provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice either party in its respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. 14. Nonwaiver of Ri ts. No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other party shall be construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept and observed by the other party. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and all other representations or statements heretofore made, verbal or written, are merged 6 • • herein, and this Agreement maybe amended only in writing, and executed by duly authorized representatives of the parties hereto. 16. Notice. Any written notice required by this Agreement shall be deemed delivered on the happening of any of the following: (1) hand delivery to the person at the address below; (2) delivery by facsimile with confirmation of receipt to the fax number below; or (3) within three (3) days of being sent certified first class mail, postage prepaid, return receipt requested addressed as follows: (1) Eagle County: Eagle County Attorney P.O. Box 850 Eagle, CO 81631 Fax: (970) 328-8699 Phone: (970) 328-8685 (2) Colorado Mountain College: David Borofsky Colorado Mountain College P.O. Box 10001 Glenwood Springs, CO 81602 Fax: (970) 947-8385 Phone: (970) 947-8321 IN WITNESS WHEREOF, the parties hereto have affixed their signatures on the day and year first set forth above. ATTEST: Clerk to the Board of County Commissioners COUNTY OF EAGLE, STATE OF COLORADO, y and Through Its By: 'AIN COLLEGE o~~ I~ ~~~ ~ ~-'~ A _o ~ By: David Borofsky, 7