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HomeMy WebLinkAboutC08-207INTERGOVERNMENTAL AGREEMENT BETWEEN EAGLE COUNTY AND BERRY CREEK METROPOLITAN DISTRICT CONCERNING WINSLOW ROAD UNDERPASS ENHANCEMENTS T~IIS INTERGOVERNMENTAL AGREEMENT (the "Agreement") is made this ~ day of J y ~ h, , 2008 by and between the Eagle County, Colorado, a body corporate and politic acting by and through its Board of County Commissioners ("County") and Berry Creek Metropolitan District, aquasi-municipal corporation and political subdivision of the State of Colorado, acting by and through its Board of Directors ("Berry Creek")(collectively referred to hereinafter as "Parties"). RECITALS: WHEREAS, Winslow Road, which is located between Miller Ranch Road and Rawhide Road in the SE '/4 of Section 4, T SS, R82 W of the 6th Principal Meridian in Eagle County, Colorado (hereinafter the "Subject Property"), provides a primary access route to the Singletree Subdivision within the Berry Creek boundaries; and WHEREAS, Berry Creek has issued $3,500,000 in general obligation bonds (the "Bonds") to fund the enhancement of the road area, which enhancements include the widening of the existing Winslow Road underpass of I-70, the construction of sidewalks, pedestrian railings, a bike lane, curbs and gutters, and the installation of a landscaping irrigation system, lighting and retaining walls on the Subject Property, for the purpose of improved aesthetics and pedestrian safety (the "Project"); and WHEREAS, the Project will include work on sections of the Winslow Road Underpass of Interstate 70 between mile post 163.5 and mile post 163.75 ("Underpass Work"), which underpass encompasses a Colorado Department of Transportation right of way; and WHEREAS, in order to proceed with the Project, Berry Creek must obtain permission and approval from the Colorado Department of Transportation ("CDOT"); and WHEREAS, CDOT requires either a county or a municipality ("Local Agency") to oversee such a project on one of its right of ways pursuant to C.R.S. § 43-2-104.5; and WHEREAS, the County is a Local Agency and Berry Creek is not; and WHEREAS, County supports the Project and has therefore agreed to work with CDOT as the Local Agency in order to encourage and facilitate Berry Creek's undertaking and completion of the Project; and WHEREAS, County and CDOT have entered into that certain Contract for Project CC M016-021 (16848) of even date herewith (the "CDOT Contract," attached hereto together with all of its exhibits as Exhibit A and incorporated herein as if set forth in full), for the purpose of the County acting as the Local Agency for the Project; and WHEREAS, pursuant to the CDOT Contract CDOT will, among other promises, provide oversite work associated with the Underpass Work and the Parties have estimated the total cost of the oversite work in the amount of $12,000; and WHEREAS, pursuant to this Agreement Berry Creek will pay to County $12,000 to cover the full amount anticipated for CDOT's oversite work and will fulfill each and every one of CDOT's requirements under the CDOT Contract for the Underpass Work and/or the Project as a whole; and WHEREAS, pursuant to applicable Colorado law, Berry Creek will advertise for and select a contractor for the Project, fund the full cost of design and construction for the Project and oversee the Project's construction; and WHEREAS, it is in the best interests of both County and Berry Creek to enter into this Agreement as the Project will provide pedestrian and bike access to Winslow Road, add sidewalks that are wheelchair accessible in accordance with ADA standards and will improve overall safety and aesthetics on the Subject Property; and WHEREAS, this Agreement is entered into pursuant to, inter alia, C.R.S. §§ 29- 1-201, et seq., and Article XIV, Section 18 of the Colorado Constitution. AGREEMENT: NOW, THEREFORE, for and in consideration of the mutual promises and agreements of the parties and other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Berry Creek's Obli atg ions. Berry Creek acknowledges that County is acting as the Local Agency for the sole purpose of facilitating the Project and that County has absolutely no financial, performance related or other obligation for any aspect of the Project or the Underpass Work other than as specifically set forth herein. Berry Creek agrees to undertake all necessary steps to complete the Project in accordance with the CDOT Contract and in accordance with the easement agreement between Eagle County and Berry Creek. Specifically, Berry Creek shall: A. Timely remit to County the full Twelve Thousand Dollars ($12,000) required by CDOT for CDOT's oversite services for the Underpass Work, which amount shall be due within thirty (30) days of execution of this agreement. If Berry Creek fails to make a timely payment to County, Berry Creek shall pay interest to County (which interest will be due CDOT) at a rate of one percent per month. Berry Creek recognizes that the total cost charged by CDOT for the oversite services is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions agreeable to the parties. Berry Creek agrees to fund an increase in cost, if so required by CDOT. B. Assume sole responsibility for fulfillment and completion all of the Local Agency Commitments related to the Underpass Work as set forth more fully in the CDOT Contract, as it may be revised from time to time as a result of design changes by CDOT. C. Certify in writing that all rights of way necessary for the Project have been acquired in accordance with the applicable State and Federal regulations, or that no additional right of way is required. D. Select a design service provider and contractor for the Project and contract for all labor, materials, equipment, and design and construction services necessary to complete the Project in accordance with Colorado law, the CDOT Contract, and applicable CDOT requirements and standards, as such requirements and standards are made known to Berry Creek. Specifically, if applicable, Berry Creek must: i. pursuant to the terms and conditions of the CDOT Contract, cause to be prepared and stamped by a Colorado Registered Professional Engineer complete plans and specifications for the Project ("Plans") which Plans shall be prepared in accord with the requirements of the latest edition of the American Association of State Highway Transportation Officials Manual andlor other standards approved by CDOT. ii. include in the Plans special provisions and estimates in accord with the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction. iii. include details of any required detours in the Plans, in order to prevent any interference of the construction work and to protect the traveling public. iv. provide final assembly of Plans and contract documents. v. be responsible for the Plans being accurate and complete. vi. make no further changes in the Plans following the award of the construction contract except by agreement in writing between Eagle County, CDOT and Berry Creek. E. Utilizing the proceeds of the Bonds and such other funds as may be lawfully available, perform the construction work in accordance with Colorado law, the Plans and the CDOT Contract. Berry Creek shall also deal directly with all contractors, subcontractors and consultants hired to perform work related to the Project. Berry Creek shall be solely responsible for payment all costs and charges involved with design, construction, consulting service fees, oversite costs, and legal fees (excepting those of the County and CDOT), as well as the costs associated with acquisition of all necessary permits, rights of way and any other necessary approval. F. Obtain the proper clearance or approval from any utility company having rights of way within the Subject Property or affected by or involved in the Project, and certify in writing that all such clearances have been obtained. G. Maintain and operate any improvements constructed at Berry Creek's own cost and expense during their useful life. H. Maintain a complete file of all records, documents, communications and other written materials, which pertain to the costs incurred under this Agreement. These records must be maintained for a period of three (3) years after the date of completion of the Project. Berry Creek shall make such materials available for inspection at reasonable times and shall permit duly authorized agents and employees of CDOT to inspect the Project and to inspect, review and audit the project records. I. At all times during the term of this Agreement, Berry Creek shall maintain the general liability insurance on its own behalf and shall require its contractors, subcontractors and consultants to maintain Workmen's Compensation insurance as required by the laws of the State of Colorado, Comprehensive Automobile Insurance in the amounts as required by the laws of the State of Colorado, and General Liability Coverage in the minimum amount of $1,000,000 for coverage of claims for damages arising from the performance of services related to the Project, including but not limited to personal injury or death, property damage and other damages. 2. County's Obli atg ions. A. County agrees that it will act as the Local Agency for purposes of receiving a CDOT authorization and right of way access necessary to accomplish the Underpass Work described above. B. Upon payment to County by Berry Creek, County shall remit to CDOT the full Twelve Thousand Dollars ($12,000) for CDOT's oversite services for the Underpass Work within the time frame required by the CDOT Contract. C. County shall have no further obligations under this Agreement, financial or otherwise, other than to provide timely notice to Berry Creek of all requests or direction provided by CDOT relating to the Project. 3. Indemnification. Berry Creek assumes all liabilities associated with the Project and the Underpass Work. Accordingly, to the extent allowed by Colorado law, Berry Creek agrees to release, indemnify and save harmless County, and its officers, agents, and employees, against any and all claims or causes of action of any kind arising out of damage to real or personal property, or injury and/or death to persons, including the property, agents, or employees of either Party, resulting in any way from the operations and duties undertaken by Berry Creek in connection with the Project, the Underpass Work or this Agreement. To the extent allowed by Colorado law, Berry Creek shall further indemnify and save harmless County and its officers, agents, and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions, or proceedings of any kind or nature whatsoever, including Workman's Compensation claims, of or by any person, in any way resulting from or arising out of, either directly or indirectly, the operations and duties undertaken by Berry Creek in connection with the Project, the Underpass Work or this Agreement. This indemnification shall be deemed to include the acts and omissions of all officers, employees, representatives, suppliers, invitees, contractors, and agents of Berry Creek. 4. Independent Contractor Status. The Parties to this Agreement intend that the relationship between them is that of independent contractor. Berry Creek, and any agent, employee, or servant of Berry Creek shall not be deemed to be an employee, agent, or servant of County. Other than requiring that Berry Creek comply with all requirements, standards and directions of CDOT and the Local Agency Commitments contained in Exhibit "A" in completing the Project, Eagle shall not attempt to oversee or supervise the work or actions of any Berry Creek employee, contractor, subcontractor, consultant, servant or agent in the course of completing work under this Agreement. 5. Benefits. Berry Creek and any agent, employee or servant of Berry Creek is not entitled to any Workman's Compensation benefits through the County and is responsible for payment of any federal, state FICA and other income taxes. 6. Non-Assignable. This agreement is not assignable by either party. 7. Integrated Agreement. This Agreement may be changed or modified only in writing by an agreement approved by the respective Boards of the Parties and signed by authorized officers of each Party. This Agreement constitutes the entire Agreement between the parties and all other promises and agreements relating to the subject of this Agreement, whether oral or written, are merged herein. 8. Severability. Should any one or more sections or provisions of this Agreement be judicially adjudged invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remaining provisions of this Agreement, the intention being that the various sections and provisions hereof are severable. 9. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be hand-delivered or sent by registered or certified regular mail, postage pre-paid to the addresses of the parties as follows. Each party by notice sent pursuant to this paragraph may change the address to which future notices should be sent. Notice to County: Eva Wilson Eagle County Engineer 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Notice to Berry Creek: Berry Creek Metropolitan District c/o Robertson & Marchetti, P.C. PO Box 600, Edwards, CO 81632 10. Immuni The Parties agree and understand that both parties are relying on and do not waive, by any provisions of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq., as from time to time amended or otherwise available to the parties or any of their officers, agents, or employees. 11. Binding Effect. The rights and obligations of the Parties under this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 12. Choice of Law and Venue. This Agreement shall be construed according to the laws of the State of Colorado, and venue for any action shall be in the District Courts of Eagle County, Colorado. County shall have standing to bring an action to enforce the terms of this Agreement in District Court, including an action for specific performance and injunctive relief. 13. Duration. This Agreement shall remain in effect for the duration of the Underpass Work and until each and every of the County's obligations to CDOT pursuant to terms of the CDOT Contract have been satisfied. 14. Authori Each of the Parties warrant that they possesses the legal authority to enter into this contract and that they have taken all actions required by all applicable procedures, by-laws, andlor applicable law to exercise that authority, and to lawfully authorize their undersigned signatory to execute this contract and to bind them to its terms. The person executing this contract on behalf of each Party warrants that such person has full authorization to execute this contract. 15. No Third Party Beneficiaries. It is expressly understood and agreed that the enforcement of the terms and conditions of this contract and all rights of action relating to such enforcement, shall be strictly reserved to the County, Berry Creek and potentially, CDOT. Nothing contained in this contract shall give or allow any claim or right of action whatsoever by any other third person or entity, other than CDOT. It is the express intention of the County and Berry Creek that any such person or entity, other than CDOT, receiving services or benefits under this contract shall be deemed an incidental beneficiary only. 16. Waiver. The waiver of any breach of a term, provision or requirement of this Agreement shall not be construed or deemed a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision or requirement. 17. Modification and Amendment. This Agreement is subject to such modifications as may be required by changes in a federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this Agreement shall be effective unless agreed to in writing by both parties in an amendment to this Agreement that is property executed and approved in accordance with applicable law. 18. No Personal Liability. No elected official, director, officer, agent or employee of either Party shall be charged personally or held contractually liable by or to the other Party under any term or provision of this Agreement or because of any breach thereof or because of its or their execution, approval or attempted execution of this Agreement. 19. Appropriation Limitation. It is expressly understood that any financial obligations that may arise hereunder which are in excess of the proceeds of the Bonds, which are hereby appropriated and reserved by Berry Creek for purposes of this Agreement, whether direct or contingent, shall only extend to payment of monies duly and lawfully appropriated by the governing body of each of the Parties. Nothing herein shall be construed as the creation in the County or Berry Creek of amultiple-fiscal year direct or indirect district debt or other financial obligation whatsoever. 20. Berry Creek Approval. The foregoing Agreement is approved by the Board of Directors of Berry Creek Metropolitan District at its regular meeting held on the ~ Z ~p day of J v ~~} , 2008. 21. County Approval. The foregoing Agreement is approved by the Board of County Commis ' ers of Eagle County, Colorado at its regular meeting held on the g day of , 2008. In Witness whereof, the parties hereto have caused this agreement to be executed as of the day and year first above written. ATTE T: BOARD OF DIRECTORS OF BERRY CREEK METROPOLITAN DISTRICT B By: / /./~...• Title: J~~/f~Jg{~" ATTEST o4~e~ BOARD OF COUNTY COMMISSIONERS ., COUNTY OF EAGLE, STATE OF i° * COLORADO By' ~ ~ton~o° ~' B Peter F. Runyon, Cha' an