HomeMy WebLinkAboutC99-079 Clear Creek VentureRECLAMATION AGREEMENT MTM-CLEAR CREEK VENTURE d/b/a AMERICAN TOWERS TELECOMM SITE THIS RECPYMATION AGREEMENT ("AGREEMENT") is made and entered into this A ay of :(, 1999, by and between MTM-Clear Creek Venture, LC, d/b/a American Towers a Colorado Corporation, (hereinafter "Permittee") and the Board of County Commissioners of the, County of Eagle, State of Colorado (hereina- fter "County"). W I T N E S S E T R WHEREAS, the Permittee has applied to the County for a Special Use Permit (ZS-00043) for a telecomm site, on a parcel of land in the unincorporated area of Eagle County; and WHEREAS, pursuant to Chapter II, Sections 4-240 and 5-250.0 of the Eagle County Land Use Regulations, 1999, as amended, ("Land Use Regulations") the County may impose restrictions and conditions on approval it deems necessary to protect the health, safety and welfare of the population and uses of the neighborhood or zone district as a condition of granting the special use; and WHEREAS, Chapter II, Section 5-250.D of the Land Use Regulations, permits the County to require collateral to insure completion of the development or required public improvements (including landscaping and off -site improvements); and WHEREAS, the Board of County Commissioners has approved the Special Use Permit with certain conditions. One such condition requires the Permittee to enter into a reclamation agreement for the implementation of an on -site reclamation plan that is fully collateralized; and WHEREAS, the Permittee desires to enter into this Agreement to satisfy the condition of the County's approval of a Special Use Permit for MTM Clear Creek Venture's Telecomm Site; and WHEREAS, the Permittee represents and warrants that it has BLM' s consent, as the lai_downer of this site, to construct a telecomm tower and perform all things required of it by this Agreement. It is the Permittee's responsibility to acquire any permits and.approvals to construct such a site. IIIIII 11111111111111111111111111111111111111111111 IlII 1 696339 03/18/1999 11:21A 23 Sara Fisher 1 of 12 R 0.00 D 0.00 N 0.00 Eagle CO 1%"No! J 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. RECLAMATION 1.1 Reclamation. Permittee, in consultation with the County, shall be responsible for the reclamation of the site as follows: 1.1.1 The disturbed land shall be revegetated in accordance with the Reclamation Plan attached hereto as Exhibit "A" and incorporated here as though set forth in full. 1.1.2 The Land shall be revegetated in such a way as to establish a diverse, effective and long-lasting vegetative cover that is capable of self -regeneration without continued dependence on.irrigation, soil amendment, or fertilizer and is at least equal in extent of cover to the natural vegetation of the surrounding area. 1.1.3 Reclamation'of areas disturbed by the construction of the MTM Telecomm Tower shall use native species and in -kind vegetation. For example, if sagebrush and mountain mahogany are removed, then these species will be restored. Reclamation work will start as soon as possible following construction, such as the first spring or fall following construction. 1.1.4 Permittee acknowledges that, because of xeric conditions at the site, reclamation may require more than an initial effort. To ensure successful reclamation, MTM will monitor the success of the seeding at the end of the first growing season. Specifically, an ecologist will evaluate seeding success, determine if weeds and erosion are a problem, and provide recommendations to solve any potential problems, as provided for in the Reclamation Plan, attached hereto as Exhibit "A., 1.2 Scope of Work. The Permittee hereby agrees, at its sole cost and expense, to furnish all labor, equipment and material necessary to perform and complete, before April 30, 2001, all reclamation improvements set forth in this Agreement. The irprovements shall be performed and completed in accordance with all construction drawings, designs, maps, specifications, sketches and other materials submitted by the Permittee prior to or at special use permit approval, and in accordance with all F laws of the United States of America, State of Colorado, County of Eagle, and their respective agencies and affected governmental entities. All the work shall be done to the reasonable satisfaction of the County Engineer and shall not be deemed complete until approved and accepted as completed by the County. 1.3 Estimated Costs of Reclamation. The estimated cost of the reclamation is $6,000.00, as set forth in Exhibit "B" attached hereto. To secure and guarantee performance of its obligations as set forth in this Section 1, the Permittee hereby agrees to provide security and collateral in the form and as set forth in Section 2, below. 1.4 Approval and Acceptance of Work. 1.4.1 Prior to requesting an inspection for the work, all information which may be necessary to establish the. satisfactory completion of the work must be submitted to the County Engineer. All such information shall be accompanied by a letter from the Permittee's engineer verifying the satisfactory completion of the Agreement performed to date. 1.4.2 After receiving a request for inspection and the required documentation, the County Engineer shall review the information presented and, if necessary, make an on -site inspection of the work completed. 1.4.3 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. 2. SECURITY and COLLATERAL. 2.1 Collateral. Security and collateral required in Section 1.3 herein, as security for the performance by the Permittee of its obligations under this Agreement, shall be in the total amount of $7,500.00. The Permittee shall provide said collateral in the form of cash prior to the issuance of the Special Use Permit, as specified in attached Exhibit "C". 2.2 Warranty Period. Within thirty (30) days after Permittee has completed all that is required by this Agreement and the work has been approved and accepted by the County, the warranty period shall be commenced. Permittee shal' be responsi- ble for the condition of the reclamation improvements as provided for by this Agreement, for a period of two years after comple- tion; this shall be guaranteed through the retention of the 3 1.4m►1 collateral. 2.3 Substitution of Collateral. The Permittee may at any time substitute the collateral originally deposited with the County herein, for another form of collateral acceptable to the County Attorney to guarantee the faithful completion of the improvements referred to herein and the performance. of the terms of this Agreement. 2.4 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 reclamation as described in Section 1.1. 2.5 Events of Default. If Permittee has not completed the work required by this Agreement on or prior to the date of completion set forth herein, the County may, after ten (10) working days written notice to the Permittee, draw upon the col- lateral an amount sufficient to complete said work and compensate the County for its reasonable costs and expenses related to said draw. 2.6 Costs and Expenses. Permittee 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 Indemnification. Permittee shall indemnify and hold the County harmless from any and all claims made against the County by any contractor, subcontractor, materialman, employee, independent contractor, agent or representative involved in the work necessary to comply with this Agreement, or on account of any other claims against the County because of the activities conducted in furtherance of the terms of this Agreement. This indemnification and hold harmless provision shall include any legal expenses or costs incurred by the County. 3.2 Certificates of Insurance. The Permittee shall secure frrm any contractor or subcontractor engagrd 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, 4 naming the County as an additionally named insured. Said limits shall be adjusted to comply with any changed limits in the Colorado Governmental Immunity Act, Title 24, Article 10, Colorado Revised Statutes. 3.3 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 reclamation work specified in this Agreement; 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 but all of said liabilities shall be and are hereby assumed by the Permittee. The Permittee 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 Permittee hereunder; and the Permittee 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 Permittee may have. 5. GENERAL PROVISIONS. The following shall apply to all Reclamation set forth in this Agreement: 5.1 Compliance with Land Use Regulations. The Permittee shall be required to obtain all necessary permits and comply with the provisions of the Eagle County Land Use Regulations, including but not limited to the regulations for special use permits, Section 5, and revegetation, Section 4. 5.2 Reclamation Improvement Agreement Controls. In the event of any inconsistency or incongruity between the provisions of this Agreement and the Eagle County Land Use Regulations, the provisions of this Agreement shall in all respects govern and control. 5.3 Approval of Special Use Permit. The County agrees to the issaance of the Special Use Permit for MTM Tear Creek Venture, subject to the terms and conditions of this Agreement and the conditions and restrictions set forth in said Permit. 5 �%� llft� 5.4 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. 5.5 Assignability. This Agreement shall be enforceable against the Permittee, provided, however, that in the event the Permittee sells, transfers or assigns its interest in the land subject to the Special Use Permit, the obligations of the Permittee under this Agreement must be assumed in writing by the purchaser, and the Permittee 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 Permittee 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. 5.6 Bindina upon Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors, and assigns. 5.7 Sole Responsibility of Permitte-e P-rior to_County Acceptance. It is further agreed and understood that at all times prior to the completion of the reclamation, each of said improvements not accepted as complete shall be under the sole responsibility and charge of the Permittee. 5.8 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. 5.9 -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. 7 IN WITNESS WHEREOF, Agreement this F� day ATTEST: County Commissioners PERMITTEE: notary to follow the parties hereto have executed this of �'a'(X. , 1999. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: Johnnette Phillips, -Chairman P.O. Box 850 Eagle, CO 81631 (970) 328-8685 MTM-CLEAR CREEK VENTURE, LLC a Colorado �ort4or3fAn By: 7 VP/Genbral anager Address fo giving notice: 2801 Youngfield Street Suite 310 Golden, CO 80401. (303) 274-2556 ... %We Tl.d S STATE OF HBO ) // ) ss. County of ftA.rrri5 ) Th foregoing was acknowledged before me this/52 day of 1999, by Marty Jimmerson of MTM-Clear Creek Vent re, LLC a Colorado corporation. WITNESS my hand and official seal. My commission expires BRENDAGROSSIE Nota y Public ? ; NOTARY PUBLIC y State of Texas v Comm. Exp, 6-28-99 G:\KAW\C-DEV\RECLAIM.MTM 99-005 E J HN eV ' �I5 11 t 4'eRM MIN TOP MGMT M P.a Reclamation Plan Task 1. Seedbed Preparation Prior to seeding, the loll surface will be ripped if they have become compacted by vehicle orequipment traffic. If the broadcast seeding is to be used, the soil surface will be left somewhat rough. I drill seeding is planned, the soil surface will be worked as necessary with disc, plow, harrow, and/or cultipacker to create a smooth, firm seedbed. o Task 2. Seed Mix Table 1 identifies the native seed mix composed of shrubs, grasses and forbs, to be applied to disturbed areas. pP stu ed Task 3. Mulch Straw mulch free of weed seed should be applied at the rate of 3,000 lbs/acre and anchored i soil by a disc or other machinery, If hydroseeding is used, a tackifier should be inclu nto the and mulch. ded with the seed Task 4. Fertilization BioSol (6-1-3), an organic fertilizer, should be applied at the rate of 1,100 Ibs/acre. This fertilizer c n be applied to the surface of the seedbed prior to seeding, or If the site is to be h droseed a included with the seed and mulch. Y ed it can be Task S. Monitoring The success of the seeding will be monitored at the end of the first growing season. S i fical, an ecologist will evaluate seeding success, determine if weeds and erosion are a problem,. and prlovid recommendations to solve any potential problems. A e EXHIBIT J H 4 Gy ' yy 11= 4UHM MIN I Ut j MUM I 4%=W P.4 Grasses. Elms elyinoldes ElymuS trachycaul us Festuca rubra Hilaria jamesil Koelerla macrantha Oryzopsis h ymenoldes Poe sandbergll Pseudomegnerin spicate Sdpa cornats Shrubs Artemisia tridentata vaseyana Cercocarpw montanus Chrysothamnus nauseosus Forbs 1upirus argenteus Penstemon strlctus Rudbeckia hirfa Sphaeralcea coccinea TABLE 9 Seed Mix Proposed East Eagle Communications Site Squirreltall Slender wheatgrass Red fescue Callow bunegrass Indian ricegrass Sandberg bluegrass B I uebunch wheatgrass Needle,and4read grass Total Grasses Mountain big sagebrush Mountain mahogany Rubber rabbithrush Total Shrubs Silverleaf lupine Rocky Mounteln penstemon Blackeyed Susan Scarlet globemallow Toted Forbs Grand Total San Luis Viva Paloma Reubens Secer 0 PLS Seeding .(lbe) 2 6 4 4 S 2 8 3 24% H Z 2 4% MEMORANDUM EAGLE COUNTY ENGINEERING TO: Kathy Walter, Paralegal Eagle County Attorney's Office FROM: John M. Vengrin Engineering Department DATE: March 15, 1999 1 RE: ZS-00043, MTM Clear Creek Venture, LLC Special Use Permit, Improvements Agreement Please use $6000 for the estimated cost of the landscaping in the MTM Improvements Agreement. Since this is a Lump Sum item there will be no partial inspections or releases. Since Section 4-240 requires collateral in the amount of 125% of the estimated cost of construction, the total collateral amount should be $7500. Pc: George Roussos, County Engineer Terri Bernath, Planner Chrono File ZS-00043 EXHIBIT AM=R��_ N American Tower Corporation. 5697 Fleet Bank SO lthweat Region Hartford, CT PO Box 22209 3/18/1999 Houston, TX 77227-2209 DA �p4f� ttt1,500 00 i u PAY One Thousand Five Hundred and 00/100 ***** ,ll TO THE . Eagle County Treasurer s7 (;i� y�x .M1 ., y ,ai ti ODDER P.O. BOA 85O � - t• OF L41e Co-81631 BC ER CONTAW9 MCMFfN G II'SC39I'll 1:011000138P: 941S8 SS16711' " - SS d411' I:U i i0001381: 9111S8 SSIr DISTRIBUTION ®_ ri�inals to: 1. Contract Book 2. 3. Copies to: 1. Accounting 2. 3. 4.