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PUBLIC IMPROVEMENTS
AGREEMENT
EDWARDS DESIGN & CRAFT CENTER PUD
GRADING PERMIT
File No. MI-12025
THI~UBLIC IMPROVEMEN.TS AGREEMENT ("Agreement") made and entered into
this \ 11 day of A ~ ,2005, by and between Woodward
Construction, 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 Design & Craft
Center PUD Grading Permit, File Number MI-12025, 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 suthcient 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 IV, Section 4-610 of the 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
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.
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
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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 ofthe 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 roadwav 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.
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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 of tests per day.
1.3.3 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 ofthree 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 comers, 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.
1.3.4 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.
1.3.5 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.
1.4 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
February 1, 2006.
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, ifnecessary, make a public inspection of the work completed.
1.6.3 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.
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1.7 Estimated Costs of Public Improvements. The estimated cost of the Public
Improvements is the sum of $141,076.44, as summarized in Exhibit "A". To secure and
guarantee performance of its obligations as set forth in this Section 1, including the completion
ofthe required Public Improvements, the Developer hereby agrees to provide security and
collateral in the form and as set forth in Section 2, below.
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 $141,076.44. The Developer shall obtain collateral in such form acceptable to the
County ("Collateral") prior to approval of Edwards Design & Craft Center PUD Grading Permit,
File Number MI-12025, 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.
2.3 Final Release of Collateral/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 ofthe entire amount ofthe 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:
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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.
2.6.3 If the Collateral is substituted, as otherwise 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.
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 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
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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.
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 ofthe 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 Edwards
Design & Craft Center PUD Grading Permit, File Number MI-12025, 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 of the
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 ptior written approval to such
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assumption following an investigation of the financial condition of the purchaser. The
D~ve1oper 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 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 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 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 ofthis
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.
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IN WITNESS. WHEREOF, the parties hereto have executed this Agreement this
da)T, of ~~!;J:4;Je1:/1.~,-l;tt:;>!, 2005.
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COUNTY OF EAGLE, STATE OF COLORADO,
By and Through its
ATTEST: BOARD OF COMMISSIONERS
By:
County Commissioners Address for giving notice:
P.O. Box 850
Eagle, CO 81631
(970) 328-8685
DEVELOPER:
:yOOD~NSTRUC~
"Vel '-\.\1:> ~~ 4~ v;Jd'u/
I
Address for giving notice:
Q<:::> ()~.~
STATE OF COLORADO )
) SS
County of Eagle )
L' The r~~in.g fas ~cknowlpdged before
~OO~by uQ. / Lurro-JL.fA as
/- ~! 1
~\.l}Jer;:m . r~"", a
WITNESS my hand and official seal.
My commission expires
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- . -- . . --- ""'- WUUlJWAt<D PAGE 02
WOOrJvvARD CONSTRUCTIUN, INC
July 25, 2005 ~
Mr. Pete Fralick JUL 2 5 2005
Eagle Coumy :engineering Department
P.O. Box 8S0
EaAle, CO 81631 ENGINEERING
.
Re~ Edwards Design &. Craft Center and Pox Hollow Utilities Estimates
Hello Pete:
rulluwitJ~ <an:: the: wlIlIlI Uc.;tiUII c.;u:;ll::llilimal.l:S from B&B Ex'-llvatioD for 5hallow and deep utilities for the
Edwards Design &. Craft Ccotcr and Fox HoUow Grading Permit Applications:
Edwards Dcsil!l1 &. Craft Center
!.UiJities
Sewer Ma.in: $17,767.60 430 LF a $4 I.321lf
Manholes: SS,581.4S 2 ea.. @ $2,790.92
Waccr Main: $28.940.00 500 LF @ $57.88/1f
R1cctric Ml\;n: $12,51:\.60 790 LP @ $15.84I1f
Shallows: SI1.474.40 470 LP @ $24.4211f .
"\ $76,217.05
1 0% Contingency: 17.627.70
Total: $83,904.75
~fIl...YLqri
Strip Topsoil: $13,'96.62 5,79& CY @ $2.69/CY
Site Grading: $8,938.92 1,371 CY @ $6.S2ICY
Mass Excavation
wI Expol1: m..w...oo 15,450 CY @$5.14/CY
$103,948.54
50% collateral: $51,914.27
10% Contingency: S5,197.42
Site Work Total: S57,171.69
Total EOCC collateral: $14l,076.44
pox Hollow
Utilities
Sewer Main: $31,681.28 848 LF @ $37.36/LF
Manboles: $1=>;IlU,UU 6 ea. @ $2,630.50
Water Main: 535,362.68 628LF @ $56.31
Electric Main: $5,290.73 317 LF@ S16.69/LF
Shallows: $7.821.00 330 LF @ S8.98/LF
$9S,938.69
10% Contingency: S9.593.86,
Total: $105,532.55
$..tf&: Work
Site Gmding: $10,945.11 1,678 CY@$6.521CY
10% Contingency: M64.S1
Site Work Total: $12,009.62
Total Fox Hollow collateral: $117,542.)7
Please: give me a call with any questions.
~ C_ ~
Phil Woodward
'70 'PnfHn 'PH,.h nriv~ #17 . V:li1. (;o!nrllclo R1657 . ohonc 970-479-1949 . fax 970-479-5395
COLORAD
BUSINESS BANK
IRREVOCABLE STANDBY LETTER OF CREDIT
Letter of Credit Number: 1159
Expiration Date: August 16,2006
Date: August 22, 2005
Beneficiary Name: Eagle County
Address: PO Box 850 / 500 Broadway
City, State, Zip Code: Eagle, CO 81657
Applicant Name: Woodward Construction, Inc.
Address: 770 Potato Patch Drive #17
City, State, Zip Code: Vail, CO 81657
We hereby issue our Irrevocable Standby Letter of Credit No. 1159 in your favor in the
amount of One Hundred Forty One Thousand Seventy Six and 44/1 00 U.S. Dollars (USD
$141,076.44) and expiring at the close of business (3:00 p.m. Mountain Time) on August
16, 2006 at our counters at Colorado Business Bank, Loan Operations Department 3rd
floor, 821 1 ih Street, Denver, CO 80202.
This letter of credit is available by presentation of your draft(s) at sight, drawn on
Colorado Business Bank, accompanied, in the case of each such draft, by the original
letter of credit and amendment(s), if any.
Special Conditions:
Partial drawings are allowed.
All banking charges other than those of Colorado Business Bank are
for the account of the beneficiary.
This Letter of Credit shall have a full and final maturity date of August 16, 2006.
EXHIBIT
i
0056 Edwards Village Blvd., Suite 130. Colorado 81632
P.O. Box 2826. Edwards, Colorado 81632
Te!: 970.926.6801 . Fax: 970.926.6806
'We hereby agree with you that drafts drawn under and in accordance with the terms of
this letter of credit will be duly honored upon presentation of drafts(s) and required
document(s) at our office no later then the close of business (3:00 Mountain Time) at 821
17th St., Loan Operations Department 3rd floor, Denver, Colorado 80202, U.S.A. on or
before the expiry date of this Letter of Credit.
Unless otherwise expressly stated, this letter of credit and all negotiations hereunder shall
be governed by and construed in accordance with the International Standby Practices
ISP98, as published by the Intemational Chamber of Commerce Publication No. 590,
and, to the extent not inconsistent therewith, the laws of the State of Colorado.
This letter of credit is not transferable unless Colorado Business Bank agrees to the
transfer in writing.
Please direct any inquiries with regard to this Letter of Credit to Colorado Business Bank,
Loan Operations Department, 821 1 ih Street, Denver, CO 80202 (303)293-2265.
'P"
\ ( ,
\ '1'-',(7~ L ~
Philip H. Hancock, Vice President
