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HomeMy WebLinkAboutC10-312 Public Improvements Agreement Singletree Master Landscape Plan PUBLIC IMPROVEMENTS AGREEMENT SINGLETREE COMMUNITY MASTER LANDSCAPE PLAN, PHASE II THIS PUBLIC IMPROVEMENTS AGREEMENT ( "Agreement ") made and entered into this 2,6/. t-h day of 0 (ftc, kO - Q , 2010, 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 Berry Creek Metropolitan District, a Colorado Special District, acting by and through its Board of Directors (hereinafter "Berry Creek "). WITNESSETH WHEREAS, Berry Creek completed construction of the first phase of Landscape Improvements in 2009 in accordance with the Public Improvements Agreement, Singletree Community Master Landscape Plan, Phase I which is recorded at Reception No. 200918481 and the Encroachment Easement Agreement which is recorded at Reception No. 200918480; and WHEREAS, Berry Creek is proposing to construct the second phase of the Landscape Master Plan including landscaping and irrigation (the "Public Improvements "), as defined by the Singletree Intersection Enhancement fmal plans attached hereto as Exhibit "A" and incorporated herein by this reference (the "Plans ") on certain County right -of -ways (the "Subject Property"); and WHEREAS, on the same date and year written above, County and Berry Creek entered into an Encroachment Easement Agreement (the "Encroachment Agreement ") which allows Berry Creek to construct the Public Improvements on the Subject Property pursuant to the terms and conditions of said Agreement; and WHEREAS, County also desires an Agreement as provided for by Chapter II, Section 4- 600 of the Land Use Regulations of Eagle County, Colorado (hereinafter referred to as "Land Use Regulations ") with regard to the installation of public improvements in unincorporated Eagle County; and WHEREAS, pursuant to the same authority, Berry Creek is obligated to provide security or collateral sufficient in the judgment of the County to make reasonable provisions for completion of the Public Improvements; 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 1. PUBLIC IMPROVEMENTS 1.1 Public Improvements. Public Improvements are deemed to include all improvements identified by the Plans. 1.2 Scope of Work. Berry Creek hereby agrees, at its sole cost and expense, to furnish all necessary equipment and materials, and to complete all Public Improvements as defined by the Singletree Intersection Enhancement, final plans attached hereto as Exhibit "A ", and as set forth in all documents, construction drawings, designs, maps, specifications, sketches, and other materials submitted by Berry Creek as 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. Berry Creek agrees that it shall be responsible for all future maintenance and repair of the Public Improvements. 1.3 Duties of Berry Creek. 1.3.1 Construction and Maintenance of the Public Improvements will be the sole responsibility and expense of Berry Creek. All construction shall be performed pursuant to the Plans. 1.3.2 Berry Creek shall be responsible for all ongoing repair and maintenance costs associated with the Public Improvements. 1.3.3 Notification/Road Construction. Berry Creek or its Representative shall provide the Eagle County Engineer with a detailed traffic control plan for any work that impacts County roadways or traffic. Eagle County shall be given sufficient time to review and comment on said plans. Additionally, the Eagle County Engineer shall be notified no less than seventy -two (72) hours in advance of commencing any work that will impact County roadways or traffic. 1.4 Date of Completion. All Landscape Improvements shall be completed prior to November 1, 2010. 1.5 Approval and Acceptance of Work. 1.5.1 Berry Creek shall arrange an inspection of the Public Improvements with the County Engineer. 1.5.2 All Public Improvements shall be constructed in accordance with the Plans and to the reasonable satisfaction of the County Engineer and shall not be deemed complete until approved and accepted as complete by the County. 1.6 Estimated Costs of Public Improvements. The estimated cost of the Public Improvements is the sum of $104,726.00, as summarized in Exhibit `B ". To secure and guarantee performance of its obligations as set forth in this Section 1, including the completion of the required Public Improvements, Berry Creek hereby agrees to provide security and collateral in the form and as set forth in Section 2, below. 2 2. SECURITY AND COLLATERAL 2.1 Collateral. Security and Collateral required in Section 1.6 herein, as security for the performance by Berry Creek of its obligations under this Agreement, shall secured by a Corporate Bond without Sureties (Collateral") as agreed in Exhibit "C ". 2.2 Costs and Expenses. Berry Creek 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. Berry Creek 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. Berry Creek, 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 al%y 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 Berry Creek. Berry Creek 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 Berry Creek hereunder; and Berry Creek 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 Berry Creek 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. Berry Creek 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. 3 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 Berry Creek 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 Berry Creek no less than sixty (60) days prior to expiration of the one -year additional correction period, and any deficiencies shall be noted to Berry Creek. 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 Assignability. This Agreement shall be enforceable against Berry Creek. Berry Creek shall not 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 Berry Creek 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 Berry Creek. When it is necessary to allow the general public to utilize the roadways under construction by Berry Creek, traffic control and warning devices shall be placed upon such roadways by Berry Creek 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. 4.10 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 may be amended from time to time, or as otherwise provided by law. Alternatively, the terms of this 4 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. / /REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 1/ 5 • IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day of N OV �h , 2010. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its BOARD OF COUNTY COMMISSIONERS: sAG g ` . .. ' ,t .;' * BY: Clerk to the Board e f County %toawoo Sara J. Fisher, hairman Commissioners BERRY CREEK METROPOLITAN DISTRICT, by and through its BOARD OF DIRECTORS: BY: C_ (M �-� ( TITLE: STATE OF Cat Ofo Qt0 ) )SS. COUNTY OF "Theoregoing instrument was acknowledged before me by CPI ,'cbp,.pj &dd this Ai9, day of 6 b , 2010. 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Ga >:l' 3123 'P Z�ox� Work to be performed for, `L ~ ''` "` '' Job Adder: Si ngletree Intersection Enhancements ► = Singletree 1 A Edwards, CO 4155 _ Total Soil prep, includes apply herbicide to existing vegetation, remove 8" of existing sails 12,240.00 and replace with topsoiwcompost mix Make road cuts, install sleeves and patch asphalt 15,940.00 install automatic irrigation as per irrigatimi plan 11,075.00 Install 6201frolled top steel edging 1,860.00 install 15 cy cedar slued mulch 1 ,200.00 Install 13 muss ruck culvert cords 2,990.00 lustall 1,390 s£ cobble mulch 4,170.00 Provide and install landscape boulders as indicated on plan 13,970.00 Provide and install 15 flagstone stepping stones around transformer 450.00 Provide and install 700 sf flagstone border 10,500.00 Plant: 4 - 6' CO Blue Spruce 1,280.00 5 - 8' CO Blue Spruce _ - 2,400.00 3 10' CO Bine Spree* 1,950.00 5 - 2 112" Spring Snowy Crabapples 1,550.00 3. 21/2" Schubert Chokoarbexry 930.00 78 - #5 Shrubs 2,496.00 All welt eat Medal curies a one year guarantee tem the completion dose et the prof PO Box 3785 Eagk, CO 81631 ' Phew 970.328.6966 ' Pax 970.328.4417 Pape 04/21/2010 10:41 9703284417 WITTAKER LANDSCAPE PAGE 02/02 Proposal ITT ►,KER Date Proposal # s errn€ TnrG. P-0 DIM Prr Tltnk, Ca. ITLPf 3/23/2010 246 Work to be performed for Job Address: Si Ogletree Intersection Enhancements Singletroe Edwards, CO Toted 205 - #1 Grasses 3 ,280.00 710 - #1 Groundoovers 7,100.00 116 - F32 Oroundcovors 8,700.00 6,450 sfNative Grass Sood 645.00 Subtotal: 104,726.00 Upon accepttmce of this proposal a material advance of $26,181.50 is requested, with the balance of $78,54430 due upon completion BOsp°ctfully Submitted, Bill whiallker Proposal accepted by: Date: $104,726.00 Al -work and materiel caries a one year manta horn the completion date of thy project Pp joie, 3785 Bask, CO e1631 ' bone: 970.328.6966 " Fax: 970.328.4417 Pape 2 EXHIBIT C CORPORATE BOND WITHOUT SURETIES KNOW ALL MEN BY THESE PRESENTS, that the Beny Creek Metropolitan District, a quasi- • municipal corporation created, established, and organized under the laws of the State of Colorado, with principal officesin care of Robertson & Marchetti, P.C., P.O. Box 600, Edwards, CO 81632, as Principal, is held and firmly bound unto EAGLE COUNTY, as Obligee, in a penal amount sufficient to make good the Principal's obligations hereunder, for which payment, well and truly to be made and performed, the Principal, by these presents, hereby binds itself, its successors and assigns, The conditions of this obligation are such that if the above -named Principal: 1. Faithfully performs all conditions imposed by any and all permits to construct within the public way of Eagle County pursuant to the regulations, adopted by said Obligee, together with any Amendments adopted prior to the effective date hereof, and together with any further amendments enacted by said Obligee; and 2. Indemnifies and saves harmless, Obligee, from any and all damages or claims for damages, loss, costs, charges, or expense on account of injury to persons or property resulting from, or occasioned by, the negligence of said Principal in the performance req uired herein, Then this obligation shall become void; otherwise it shall remain in full force and effect if the above conditions are not met, in perpetuity, unless tenrinated upon ninety (90) days written notice from either party- EFFECTIVE , 2010 AND EXECUTED this 2S 111 day of PT 2010 at S1Nr:tr—rm ekbwpg0$Eagle County, Colorado. Berry Creek Metropolitan District BY: fi )0$ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this 28 day of SEPT 2010 by I11iLH$ t L D t of the g(,M D . Witness my hand and official seal, otary blic My commission expires: _ 2-23 13