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HomeMy WebLinkAboutC08-255 CME Public Improvements AgreementPUBLIC IMPROVEMENTS AGREEMENT COLORADO MOUNTAIN EXPRESS TRANSPORTATION EAGLE-NAIL SATELLITE LOT File No. ZS-00176 THIS PUBLIC IMPROVEMENTS AGREEMENT ("Agreement") made and entered into this ~" day of ~~_~rr~b.Q-R, , 2008, by and between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "County") and Transportation Management Systems, LLC (hereinafter "Developer"). WITNESSETH WHEREAS, the Developer, as a condition of approval of the Colorado Mountain Express Transportation Eagle-Vail Satellite Lot, File No. ZS-00176, 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 IV, Section 4-610 of the Land Use Regulations, development in the unincorporated areas of Eagle County shall be planned and designed with all plans and reports prepared 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 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: 1) Culverts 1.3.2 Notification/ 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 construction: 1) Finished sub-grade for pass thru driveway 2) Recycled Asphalt Placement for pass-thru driveway 2009. 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. 1.4 Date of Completion. All Public Improvements shall be completed prior to July 1, 1.5 Estimated Costs of Public Improvements. The estimated cost of the Public Improvements is the sum of $87,577.82, 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. 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 $87,577.82. The Developer shall obtain collateral in such form acceptable to the County Attorney ("Collateral") prior to issuance of the Grading Permit, as specified in attached Exhibit "B". 2 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. Upon completion of the required improvements, the applicant shall obtain certification from a Colorado Registered Engineer that the improvements have been constructed in accordance with the approved plan. Upon receipt of this certification, the County Engineer shall release the security within (7) calendar days. If the security provided by the applicant is not released, refusal to release and the reasons therefore shall be given to the applicant in writing by the County Engineer. 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 3 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 Ex enses. 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 LiabilitX. 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 Beaver Creek Landing Roundabout 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. 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 4 County (Chapter V), as the same are iri 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 Approval of Gradin Permit. The County agrees to the approval of the Colorado Mountain Express Grading Permit, GRAD-8-08-1960, subject to the terms and conditions of this Agreement. 4.4 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. 4.5 Assi nability. 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 rior 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. 4.6 Binding upon Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors, and assigns. 4.7 Sole Responsibility of Developer Prior to County Acce tance. 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. 4.8 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. 4.9 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. 5 ~F.10 ~nfarcement and Attorney Fens. 1"h~: Count}~ may ~nfgrcc the prurisicros ~~f~this rlgrcemcnt in the same manner and with the same remedies applicable tg tl~e enfgrctmcnt of land use regulatigns pursuant tg the Eagle Cquniv Land Use Regulatians, as they ma~~be amended Pram time to time, ar as otherwise provided by la«. Alternatively, the terms of'this .Agreement may be enfgrceable by the 13gard or its dc;signee by an}~ apprgpriate equitahle ~7r le~~al actian, ine[uding but ngt limited to specific perfgrmance, mandamus. abatement, qr injunctian. The remedies explicitly provided herein are cumulative, and not exclusive, gf'all ether remedi~:s prgvided by law. The prevailing party in any actign brgught pertaining tg this Agreement shall be entitled tg an award gfcasts and reasonable attgrney"s fees. WI'I"NESS WHF-,RFOF, the parties hereto have e:~ecuted this Agreement this_~ day qf' y~_, 2008. C'OUNT'Y OF EACii.l:, S'I"A"I'l OF C()I.,ORAI7O, I3y and Thrgugh its A"I°I'ES'E': I3OARI) C)l; C'OUNTY C(3MMISSIO\ERS ~~ Z:I-GLF CQ x Clerk to the and of e * Peter Runyan, Chairma~~ C;gunt}' Comrnissigners °~pRA'~ /Z~', ~ ~ ~ 4 ~,~? tj 1 { ~ \ f ,l; ~~ b - ~ '~\ _:3 Ville: _ _t ~ ~~ ~ ~ ~_~ 4 _. --_= ~.,~'_- - -- ~ .l Address for giving notice: Jay Ufer 'I'ransp~>rtatioii n-lanagcrnent S~ stems. I.I.C Vail, CO 81 G> f hc~nc: 92b-980() l:xt. 6~()7 S`i'A'I'l: OF COI~OIZr~DO } ss. C:o~rnty of Eagle ) .~,r w. "I~he Foregoing was acknotivledged before me this ~'~, b}' FiS a W'I'CNI:SS my hand and official seal, M}' c;on~mission expires _- STATE Ui~ ::, C:~L..C: s~ r rC} ~ `~; ~-e°~,~ ~~-> ~ -` _~ n^v ~._ ~m~e5;:_ ._ .,<<<~ r , r, Nofary' Public :~ .._; - day oI' ~~, .~ -- - «I' ~.,.M ARR©YC~ ENGIN~.~.RING~ INC PO Box 2946, Edwards, CO 81632 Ph {970} 926-2728 Fx {970} 926-2730 EXHIBIT ENGINEERS OPINION OF PROBABLE GOST3 FOR CC7L©RADC~ N1C~(..aNTA1N ~XPRE..55 Lot 3, Block 2 Eagle-Vail Commercial Service Center August 20, 2008 Item No. Descri tion Units Quanti Price Per Unit Totai 1 Mobilization L5 1 $ 1,500.00 $ 1,500.00 2 Silt Fence LF 400 $ 2.00 $ 800.00 3 Stabiized Construction Entrance EA 2 $ 750.00 $ 1,500.00 4 Erosion Control LS 1 $ 250.00 $ 250.00 5 To soil Stri & Grub 4" CY 490 $ 4.00 $ 1,960.00 6 Site Cut CY 1209 $ 5.00 $ 6,045.00 7 Site Fill CY 559 $ 6.50 $ 3,633.50 8 Ex ort wl Dum Fees GY 650 $ 10.00 $ 6,500.00 9 Subcrade Pre SY 3462 $ 1.35 $ 4,673.70 10 Rec sled Ash alt 8" SF 31160 $ 1.50 $ 46,740.00 11 Shoulder Rec sled As halt 8 SF 1956 $ 1.50 $ 2,934.00 12 18" NDPE LF 30 $ 41.00 $ 1,230.00 13 18" F.E.S. EA 2 $ 250.00 $ 500.00 14 24" HDPE LF 20 $ 50A0 $ 1.000.00 15 24" F.E.S. EA 1 $ 350.00 $ 350.00 Sub-Total $ 79,616.20 10% Contin envy $ 7,961.62 ~~~~~~~~~~ TOTAL 87,577.82 $ O REG/~T~ O:V U .W `.~~.C7LC",~"~, ~~•. YJ ,. ~,,~'' ~~ NRT, LLC DBA CME/CME PREMIER - _ . _ VENDOR_lD_ _ . _ ,.__ __ _ _ _ . ,. NAME PAYMENT NUMBER CHECK DATE ,,,,,,~ ~,,, 00000000000043463 T3 SLZ EAGLEVAIL 20/2008 tb ~~ IYI ~~12w 121~g INE COMMENT 7 $87,5 7 .82 .8 2 $87,577 $0.00 0 0 . 0 $ . ./ ,_ ~.~(,~_WWIL. M ~ ~y ~ A ~ ,, , , ~ C~ ~2-+4~- 3 -v g - t~ ~~ ~. ' ~> 1~~~~~ f~.~'l~ ~t9 ~ Q ~ti ,577.82 $87,577.82 $0.00 $0.00 56745 $87,577.82 $87,577.82 56745 EwRT, LLC '~~e" ~ sAwK DBA CMElCME PREMIER P.O. BOX 580 PH. 970928-A800 ~~ ABM VAiL, CO 81858 ` 8/20/2008 587,577.82 r c. PaY e Eighty Seven Thousand Five Hundred Seventy Seven Dollars And 82 Cents °g TO THE ORDER VOID AFTER 90 YS ~ Eagle County Clerk a Recorder TWO A QUI OVER 570,000.00 ;' °r. c/o Teak J. Simonton PO Box 537 Eagle CO 81631 ----ter- - - --------- ---------M ~I'0567451t' x:10?00 i 23 2:19 005 L4i1' -~-