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HomeMy WebLinkAboutC05-174 Kummer Development Corporation_Frost Creek PUD Roadway '/ 11111111111 K~IIIIIIIII\1111I1 ~;:r~~1~ 28P Teak J Simonton Eagle, CO 23 R 0.00 0 0.00 PUBLIC IMPROVEMENTS AGREEMENT FROST CREEK PUD ROADWAY GRADING PERMIT File No. MI-12007 / ?JIS PUBLIC IMP OVEMENTS AGREEMENT ("Agreement") made and entered into this I . ,. day of 2005, by and between Kummer Developmentu Corporation (hereinafter "Devel er") 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 Frost Creek PUD Roadway Grading Permit, File No. MI-12007 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 as "Public Improvements"; and WHEREAS, pursuant to Article N, Section 4-610 of the Land Use Regulations, development in the unincorporated areas of Eagle County shall be planned and designed by, or under the direct supervision of a Professional Engineer; 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 IMPROVEMENTS 1.1 Public Improvements. Public Improvements are deemed to include all public improvements related to this development on and off-site. 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 grading permit 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. t 1.3 Duties of Developer. 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 - fmished 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 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 laboratory when utilities or drainage culverts are being backfilled within the roadway pnsm. 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 250 lineal feet of roadway. d. Aggregate base course - one in-place density per 250 lineal feet of roadway, and gradation and Atterberg Limits test per 2,000 tons of aggregate base course. e. Hot Bituminous Pavement - two asphalt content, gradation and in- place density tests per day's production. 2 f. Concrete - Curb and Gutter. Sidewalks and Bike Paths - tests for air content, slump and compressive strength per 50 C. Y. of concrete placed or minimum of one set oftests per day. 1.3.3 Notification/Road Construction. Developer or his Engineer shall notify the Eagle County Engineer for the purpose of arranging an on~site inspection no less than twenty-four (24) hours in advance of the following stages of road construction: 1) Finished sub-grade 2) Finished Aggregate Base Course 3) Asphalt Placement 4) Concrete - curb and gutter, sidewalks and bike paths 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 ofthe 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. Benchmarks shall be shown on witness records. 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 Monument at ion. An Affidavit of Monument at ion sealed, signed and dated by a Registered Professional Land Surveyor stating that Frost Creek PUD Roadway has been monumented in accordance with 938-51-105, C.RS., shall be provided to the Eagle County Engineer prior to the acceptance of the Public Improvements by the County. 3 1.4 Compliance with Colorado Department of Transportation's State Highway Access Code. Developer shall provide the County with designs in compliance with the Colorado Department of Transportation's State Highway Access Code for all road improvements. 1.5 Date of Completion. All Public Improvements shall be completed prior to December 31,2005. 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 a public inspection ofthe 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 Improvements is the sum of $2,441,308.21, 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 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 has submitted a landscaping plan for Frost Creek PUD Roadway which complies with Section 4-240, Installation and Maintenance Requirements. The Developer agrees to abide by the Landscape Plan approved by the Eagle County Engineer. 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$2,441,308.21. The Developer shall obtain collateral in such form acceptable to the County ("Collateral") prior to approval ofthe Frost Creek PUD Roadway Grading Permit, File No. MI-12007 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 the 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. 4 2.3 Final Release ofCollateral/Warranty. 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. 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 Developer'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. S 2.6.3 If the Collateral is substituted, as othetwise provided herein, this Agreement may be 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.&.1- Developer agrees to provide collateral in a form acceptable to the County Attorney to ensure landscaping will be installed. Developer agrees to provide for no less than on hundred and twenty-five (125) percent of the estimated cost of the landscaping improvements listed in the Landscaping Plan. 2.8.2 As portions of the landscape improvements are completed, the Eagle County Engineer 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 ten (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 ofthe 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 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 6 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. 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 Regulations. 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 incongruity between the provisions of this Agreement and the Land Use Regulations, the provisions of this Agreement shall in all respects govern and control. 4.3 Warranties and Guarantees. There shall be a two-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 Grading Permit. The County agrees to the approval of the Frost Creek PUD Roadway Grading Permit, File No. MI-12007, subject to the terms and conditions of this Agreement. 4.5 Amendment and Modification. The parties hereto mutually agree that this Agreement may be amended or modified from time to time, provided that such amendment or modification be in writing and signed by all parties hereto. 4.6 Assignability. This Agreement shall be enforceable against the Developer, provided, however, that in the event the Developer sells, transfers or assigns all or part ofthe subject property, the obligations of the Developer under this Agreement as to that portion of the subject property may be assumed in writing by the purchaser of the parcel, 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. 7 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 Acceptance. 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 charge ofthe 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 prepared 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 may be 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 remedies 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's fees. 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement this '31 day of 1'1, ,2005. COUNTY OF EAGLE, STATE OF COLORADO, By and Through its ATTEST: BOARD 00UNTY COMMISSIONERS ~ Clerk to the Bo d of . Menconi, ~hairman County Commissioners Address for giving notice:- P.O. Box 850 Eagle, CO 81631 (970) 328-8685 DEVELOPER: KUMMER DEVELOPM,ENT CORPORATION ~ By: / ,0. - L/ 1Jl The day of f ! .::Jt , ofKumm r WITNESS my hand and official seal. " f1 My commission expires &.~:A." -1)3 TERRI ADAMS JONES NOTARY PUBLIC. STATE OF MISSOURI CITY OF ST. lOUIS MY COMMISSION EXPIRES JUNE 22,2008 9 -. - PRELIMINARY ENGINEERING ESTIMATE -- 0) :1, IL SU8MI1TED BY: CW PROJECr NAME: Frost Creek Grading Permit IjILj)Oj)~ WI)~ ~ Date: 4-10-05 Revised: 5-2-2005 JK Job# EA05009 MAY 0 6 2005 The Ql*Mitiea in /his Prnpoul SchoduJe we '-I 011"'" project COIIItIuclion drowinp . of Marcb 200S. I NGINEERING - ITEM NO. DESCRIP110N EST QTY UNIT UNIT rRKi AMOUNI' REMARxs GENERAL Insurance 1.00 LS. S50,000.00 S50,OOO.00 Mobilization 1.00 LS. 530,000.00 530,000.00 Sile Cleanup 1.00 LS. $2,500.00 $2,500.00 .,L.,,"", Demobilization 1.00 LS. $2.500.00 52,500.00 ;~ Traffic Control 1.00 LS. 57,500.00 $7,500.00 TOTAL - GENERAL $9%,.580.00 -... ROAD CONSTRUcnON CIcer and Grub 40.33 AC. 51,500.00 560,495.00 Topsoil- Remove mdStoc:kpile or Waste 88,731.00 CY. 52.25 5199,644.75 Unclassified Excavation 58,990.00 ev. 52.50 5147,475.00 Embankment in Place ComPllCted 107,641.00 CY. 52.00 5215,282.00 CIcer and IIl'\Ib Benn Ar. II.SO AC. 5I.soo.00 517,250.00 Finish Grade Road pgu-orm Subtnde 195,197.00 SY. 51.00 5195,197.00 Topsoil - P'-nent,Qrade and Shape Road cuts & fills 16,891.00 CY. 52.75 $46,450.25 Place, Sbaoe waste_ 11.5 AC. 52,000.00 523 000.00 Benn Area II.SO AC. 53,500.00 $40,250.00 Reveaetation Roads 21.00 AC. 53,500.00 573,500.00 GIIIld Rail 3SO.00 LF. 517.00 55,950.00 End 10.00 EACH 5800.00 58,000.00 TOTAL - ROAD CONSTRUcnON $1.032.494.00 ROAD STABILIZA nON MATERIAL Subgrade Bac:JdUl, CIUs 3 minus 6 muck) 22,000.00 CY. 53.50 577,000.00 Class A Filter Material 5,000.00 CY. 522.00 5110000.00 ."".... ....@ 6" perforated drain Dioe 2,000.00 LF. 56:00 512,000.00 ~, ,,~U REG '.. 6" solid drain Dioe , 500.00 LF. 56.00 53,000.00 .J ยท ...;......... ~ .:-l~ ..~ 5,)1..... TOTAL - STABILIZATION MATERIAL $101.000.00 ~ (". ~ r..~ ~ ::~ ~8~~j DRAINAGE CONsTRUcnON :./,1"- f.. " '. 18" RCP PiDe & Trenl:h 880.00 LF. $40.00 535,200.00 V 'J l?3. ~ ... .... ~ 18" RCP End Sectioni 30.00 EACH 5ISO.00 $4,500.00 ...... ~~,',' 24" RCP Pioe& TI'eIICb 357.00 LF. $45.00 516,065.00 , ..... A Htl ~ :\\\" , 24" RCP End Sections 14.00 EACH 5200.00 52,800.00 , I I I It. ~ , .. \ '\ 30" RCP Pipe & Trench 140.00 LF. $48.00 56,720.00 30" RCP End Sections 6.00 EACH 5225.00 51,350.00 36" RCP Pipe & Trench 68.00 LF. 550.00 53,400.00 )6" RCP End Sectioni 2.00 LF. 5250.00 5500.00 42" RCP PiDe & Trench 49.00 LF. $52.00 52.548.00 42" RCP End Section$ 2.00 EACH S275.00 S550.00 Page I of 2 pages 48" RCPJ'~& Treol:b 1898.00 LF. 555.00 5104.390.00 - - ITEM NO. DESCRIPTION ESTQTY UNIT UNIT PRICE AMOUNT REMARKS lLry)_~)1\~/)}~ ~ 48" RCP End Sections 12.00 EACH 5325.00 53,900.00 MAY 0 6 2005 66" RCP Pipe &; Trench 236.00 LF. 570.00 516,520.00 66" RCP End Sections 6.00 EACH $425.00 52,550.00 Rip Rap 18" minimum 465.20 CY. 58.00 53,721.60 Erosion Control 1.00 LS. 5125,000.00 5125,000.00 ENGINEERING TOTAL - DRAINAGE CONSTRUcnON $329,714.60 -- AUGMENTATION POND CONSTRUcnON Clear and Grub 3.17 AC. 51,500.00 54,755.00 Topsoil - Remove and Stoc~i1e or Waste 12,800.00 CY. $2,25 $28,800.00 Unclassified Excavation 35,477.00 CY. 52.50 588,692.50 Pond Embankment in Place Compacted 2,785.00 CY. 52.00 55,570.00 Pond Liner 1.00 LS. 550,000.00 550,000.00 TOTAL -AUGMENTATlONPONDCONSTRUcnON 5177,817.50 _. POND BORROW Borrow Material 23,938.00 CY. 52.50 559,845.00 TOTAL - POND BORRow 559,845.00 TOTAL CONSTRUcnON 51,894,371.10 INDIRECT COSTS Surveying 1.00 LS. 5100,000.00 5100,000.00 Construction AdministrBtion &; Field Engineering 1.00 LS. 5100,000.00 5100,000.00 As-Built Drawings 1.00 LS. 525,000.00 525,000.00 Material Testing 1.00 LS. 5100,000.00 5100,000.00 TOTAL INDIRECT COSTS $325,000.00 / """.~. iJ1/ TOTAL CONSTRUcnON &; INDIRECT COSTS 52,219,371.10 " ~\\ IE "/', ...i ' (:, ........ r ~ ... 10% CONTINGENCY 5221,937.11 ....f~i -':... S. (, .. '~ -q ~ .. ..~ '1" 0:. GRAND TOTAL 52.441,308.21 : / I, ~~\ ~ ---GOLF COURSE CONSTRUCTION NOT ~W. " J 'iKl INCLUDED - Pond material required Is based on 1.10 ~.~ ~ -, ......, ... ._9. ,. ~' compaction factor ". J .-.".. '\.,_, ; ", (, f 'N ~. ..\".. . J \'\' - Embankment amount Is in pla<< compacted volume 'I" f I I It' \1 * It Is aasumed here that 59,415 of excess excavation will be used for road embankment, the remainder wasted. Page 2 of 2 pages , *WestStar Bank EXPECT ACTION IRREVOCABLE LETTER OF CREDIT WestStar Bank 0015 Benchmark Road, P. O. Box 3219 Avon, CO 81620 In-evocable Letter of Credit Date 5/25/05 Number: 838 May 25,2005 Board of County Commissioners County of Eagle State of Colorado P. O. Box 850 Eagle, Colorado 81631 To Whom It May Concern: I We hereby open our Irrevocable Letter of Credit in your favor, available by draft at sight drawn on WestStar Bank for any sum or sums not exceeding in total the sum of$2,441,308.00 For account of Kummer Development Corporation, P.O. Box 659, Eagle Colorado 81631, in reference to WestStar Bank Borrowers' HBE Corporation. For the purpose of guaranteeing construction of public improvements required by the County of Eagle, State of Colorado, pursuant to that certain Grading Permit #MI-12007 dated April 25, 2005, and the Public Improvements Agreement between County of Eagle, Colorado, Kummer Development Corp, relative to Frost Creek P.U.D. Subdivision. Each draft drawn on WestStar Bank sight shall be endorsed on the reverse side or this Letter of Credit and bear upon its face "Drawn under Letter of Credit Number 838, dated May 25,2005, of WestS tar Bank." And shall be accompanied by a Resolution of 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. WestStar Bank agrees with the drawers, endorsers and bonafide holders of drafts drawn and negotiated in compliance with terms of this Letter of Credit that such drafts will be duly honored upon due presentation at the counter of this bank. WestStar Bank 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 oftime stated herein; said authority being pursuant to the laws of the United States, or the State of territory which governs the establishment and regulation of WestS tar Bank charter, by-laws and other applicable rules and regulations adopted pursuant thereto. Should I be necessary for the County of Eagle to file suit in an effort to enforce this irrevocable Letter of Credit, WestStar Bank hereby waivers 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 May 25, 2006. PO BOX 3219 . 0015 BENCHMARK ROAD AVON, CO 81620 ~ " ~, " ~ , . , P R7n R4R ,1001 ~ q7n qilq I1RR1 www.weststaroank.com Letter of Credit #838 Page 2 Si~1';, ~" Attesk' /) .( / --- /Jlr;fzi, ({l/lf! WestS tar Bank Secretary Dan Godec President Avon / WestStar Bank