HomeMy WebLinkAboutR08-135 Miller Ranch Phase II and III Final Release of Collateral (2) • •
Commissioner tl-- K.— moved adoption
of the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 2008- 156
FINAL RELEASE OF COLLATERAL
AND
TERMINATION OF THE WARRANTY PERIOD
FOR
MILLER RANCH
PHASE II AND PHASE III
FILE NO. PDF -00079
WHEREAS, on October 22, 2003, the Board of County Commissioners of Eagle
County, Colorado ( "Board ") entered into a Subdivision Improvements Agreement
( "Agreement ") with Berry Creek Limited Liability Company ( "Subdivider ") for Miller Ranch
Phase II and Phase III; and
WHEREAS, both the Subdivider and the Engineering Department state that the work
required under the Agreement is complete and acceptable and the Engineering Department
recommends full release of the collateral and the termination of the Subdivision Improvements
Agreement and termination of the warranty period, see Exhibit "A," attached hereto and
incorporated herein by this reference. Based upon the written recommendations of the County
staff, THE BOARD FINDS that the Subdivider's obligations under the Agreement have been
satisfied; and
WHEREAS, the warranty period required by the Subdivision Improvements Agreement
has ended.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO:
THAT, the Board hereby authorizes the full and final release of collateral and the
termination of the Subdivision Improvements Agreement for Miller Ranch Phase II and Phase
III.
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THAT, this document shall be recorded in the Records of the Eagle County Clerk
and Recorder, which shall be evidence that the warranty period for Miller Ranch Phase II and
Phase III has been successfully completed and that the Subdivider's obligations under the
Agreement are complete.
MOVED, READ AND ADOPTED by the Board of Count Commissioners of the
County of Eagle, State of Colorado, at its regular meeting held the day of December, 2008.
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
ATTEST: BOARD OF COUNTY COMMISSIONERS
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Clerk to the Board of cotoRAn° Peter F. Runyon
County Commissioners Chairman
By: Qom
Sara J. Fisher
Commissioner
By:
Arn M. Menconi
Commissioner
Commissioner � — seconded adoption of the foregoing resolution. The roll
having been called, the vote was as follows:
Commissioner Runyon +^
Commissioner Fisher :A _ "
Commissioner Menconi ,
This Resolution passed by ( vote of the Board of County
Commissioners of the County of Eagle, State of Colorado.
G:\ NRW \resolutions\MillerRanchPhases II and III final release.DOC
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MEMORANDUM
EAGLE COUNTY ENGINEERING
TO: Nancy Wright, Eagle County Attorney's Office
FROM: Mike Gruber, Engineering Department
DATE: November 24, 2008
RE: Subdivision Improvements Agreement, Phase II and Phase III, a Resubdivision of
Berry Creek/ Miller Ranch -Tract D, File No. PDF- 00079, Release of Collateral,
Termination of the Warranty Period and the Subdivision Improvements Agreement
A request was received from Tug Birk, ASW Realty Partners, for final inspection and the
termination of the warranty period under the Subdivision Improvements Agreement entered into
October 22, 2003 and as modified under the Third Amendment to Subdivision and On -Site
Improvements for Miller Ranch Phase II and Phase III entered into January 25, 2005.
My inspection on November 5, 2008, with Tug indicates the improvements are complete, have
survived the warranty and are acceptable per the terms and conditions of the Subdivision
Improvements Agreement.
I recommend termination of the warranty period, the Subdivision Improvements Agreement,
and the release of the collateral.
# # #
cc: Eva Wilson, County Engineer (e -mail)
EXHIBIT
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SUBDIVISION AND ON SITE IMPROVEMENTS
AGREEMENT
FOR
MILLER RANCH
PHASE II AND PHASE III
File No. PDF - OD
THIS SUBDIVISION AND ON -SITE IMPROVEMENTS AGREEMENT ( "Agreement ")
made and entered into this day of '1, 2003 by and between Berry Creek
Limited Liability Company (hereinafter "Developer ") and the Board of County Commissioners of
the County of Eagle, State of Colorado (hereinafter "County ").
WITNESSETH
WHEREAS, the County is presently the owner of certain real property identified on the
final plat of Miller Ranch as a Resubdivision of Tract D, Berry Creek/Miller Ranch PUD, County
of Eagle, State of Colorado.
WHEREAS, the County and Developer have entered into a Development Agreement
dated March 12, 2002and Land Lease and Option Agreement dated August 20, 2002, pursuant to
which Developer is to develop portions of Tract D into a single and multi - family housing
development project.
WHEREAS, pursuant to the Land Lease and Option Agreement dated August 20, 2002
the County entered into that lease agreement for the purpose of leasing the ground to Developer
so that it can construct improvements and sell the residential units as they are constructed.
WHEREAS, the Developer, as a condition of approval of the Final Plat of Miller Ranch
Filing 2, a Resubdivision of Tract A and Parcel 14 Miller Ranch (phase II and III) (hereinafter
referred to as "Subdivision "), 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- 280.B.5.e. and C.R.S. 30 -28 -137; and
WHEREAS, pursuant to Chapter II, Section 4 -620 of the Land Use Regulations, when a
proposed subdivision is located in an area serviced by an existing County road and the County
determines that the traffic generated by such development will result in safety hazards for vehicle
drivers, pedestrians and/or adjacent residents, or will result in substantially increased
maintenance costs to the County, the County is empowered to determine the amount of work
necessary to bring the affected County road to acceptable standards to provide adequate safe
service to present owners, to the proposed subdivision and to other probable subdivisions, and to
require the Developer to improve its equitable portion of such road to an acceptably safe
condition; and
WHEREAS, the Developer has agreed to improve the roads within the subdivision to an
acceptably safe condition and to accommodate the incremental increase in traffic burden to the
• , a
said roads within the subdivision resulting from the development of this Subdivision, by the
engineering, construction and completion of physical improvements to the said road as set forth
in this Agreement; and
WHEREAS, pursuant to Chapter II, Section 4 -620.9 of the Land Use Regulations and
C.R.S. 43 -2 -147, the Developer shall provide access for all lots and parcels it creates to the state
highway system in conformance with the State Highway Access Code.
WHEREAS, Developer intends to enter into an agreement with a suitable contractor for
the construction of infrastructure and site work for Phases II and III of the housing development
on Tract D, Berry Creek/Miller Ranch PUD.
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. SUBDIVISION IMPROVEMENTS.
1.1 Subdivision Improvements. Subdivision Improvements are deemed to include all
public improvements, including but not limited to on -site improvements as set forth in all
documents, construction drawings, designs, maps, specifications, sketches, cost estimates, and
other materials submitted by the Developer prior to or at final plat approval and acceptance by
the County. Such Subdivision Improvements shall include roads, utilities and other similar
public improvements as specified by the County Engineer.
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 Subdivision Improvements as set forth
in all documents, construction drawings, designs, maps, specifications, sketches, and other
materials submitted by the Developer 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. It is agreed that Developer will enter into an
agreement with a suitable contractor for the performance of the Subdivision Improvements
within 60 days of the date of this Agreement.
1.3 Duties of Developer. For those Subdivision Improvements required herein,
including but not limited to the reconstruction and physical improvement of that portion of any
road subject to this Agreement, the Developer shall retain a Colorado Professional Registered
Surveyor or Professional 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 Standard
Specifications for Road and Bridge Construction —1999 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:
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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 stake the sewer mains at the
manholes and the service lines and the water mains at the deflectors and
fittings.
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:
a. Utility and drainage culvert trench backfill under roadway 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
prism.
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 2000 tons of
aggregate base course.
e. Hot Bituminous Pavement - two asphalt content, gradation and in -place
density tests per day's production.
f. Concrete - Curb and Gutter, Sidewalks and Bikepaths - tests for air
content, slump and compressive strength per 50 C.Y. of concrete placed or
maximum of one set of tests per day.
1.3.3 Notification/Road Construction. Developer or his Engineer shall notify the
Eagle County Engineer for the purpose of arranging an on -site inspection no less than forty-eight
(48) hours in advance of the following stages of road construction:
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1) Finished subgrade
2) Finished Aggregate Base Course
3) Asphalt Placement.
4) Concrete - Curb and Gutter, Sidewalks and Bikepaths
The County Engineer shall make an on -site visit within the forty -eight (48) hours notification 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 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.
1.3.4 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 of three 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. In
addition to witnessing of the horizontal location of these laterals, a vertical witness shall be
required. Horizontal witnessing shall be to property corners, 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 subdivision. Bench marks shall be shown on witness records.
1.3.5 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.
1.3.6 As -Built Drawings of Subdivision Improvements. As -Built drawings,
sealed, signed and dated by a Registered Professional Engineer or Licensed Surveyor showing
the as- constructed horizontal and vertical locations of Subdivision Improvements shall be
submitted to the Eagle County Engineer prior to commencement of the two year warranty period.
This shall include as -built drawings in an electronic format (auto -cad) acceptable to the County
Engineer.
1.3.7 Affidavit of Monumentation. An Affidavit of Monumentation sealed,
signed and dated by a Registered Professional Land Surveyor stating that the subdivision has
been monumented in accordance with 38 -51 -105, C.R.S., and Chapter II, Section 5- 280.5.a (1)(a)
of the Eagle County Land Use Regulations shall be provided to the Eagle County Engineer prior
to the acceptance of the Subdivision Improvements by the County.
1.4 Compliance with Colorado Department of Highways Access Code. Developer shall
provide the County with designs in compliance with the Colorado Department of Highways
Access Code for all road improvements.
1.5 Date of Completion. All Subdivision Improvements shall be completed prior to July
1, 2005 or such other date as the parties may agree to in writing.
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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, if necessary, make an on -site inspection of the work completed.
1.6.3 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.
1.7 Estimated Costs of Subdivision Improvements. At the time of executing this
Agreement Developer is negotiating a contract with a suitable contractor for the performance of
the Subdivision Improvements. It is agreed between County and Developer that Developer shall
enter into such a contract within sixty (60) days of the date of this Agreement and shall provide
the contract to County. The contract between Developer and contractor for performance of the
Subdivision Improvements shall include a cost estimate or statement of costs for the successful
completion of the Subdivision Improvements which shall be approved by the County Engineer in
her sole discretion. Once approved such contract shall be attached to this Agreement in the form
of an amendment as Exhibit A. Further, Developer agrees to obtain a performance bond from the
contractor to secure the successful performance of the contract. In the event the Developer fails
to provide a contract incorporating an acceptable cost estimate within 60 days, County shall have
all legal and equitable remedies available to it including but not limited to injunctive relief,
specific performance and the ability to withhold building permits associated with Phase II and III.
1.8 Common Park and Recreation Areas. Developer agrees to abide by the Landscape
Plan previously approved by the Berry Creek Design Review Committee and further agrees to
submit any additional information or plans as required by such Design Review Committee.
2. SECURITY and COLLATERAL.
2.1 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 for
purposes of the two year warranty period, the Developer shall arrange to post security in an
amount equal to ten percent (10 %) of the contract price (which shall be attached hereto as
Exhibit A within sixty days of execution of this Agreement as more fully set forth in paragraph
1.7 above), and it is agreed that the contract price shall represent the actual costs of construction.
Developer shall be responsible for the condition of the Subdivision Improvements for a period
of two years after completion; this shall be guaranteed in the form of a letter of credit or
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Developer may provide a guarantee bond in an amount and in a form acceptable to the County.
The County agrees to consider a maintenance bond as security under this paragraph, so long as
the terms and conditions of such bond are acceptable to the County.
2.2 Draws. Draws against the security 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 security must
be applied for the purpose of completing the work required by this Agreement and related
expenses and costs.
2.3 Events of Default. The following events shall be deemed "Events of Default,"
Entitling the County to draw on the security:
2.3.1 If Developer has not corrected or completed the work required
by this Agreement during any warranty period, the County may, after ten (10) working days
issue a written Notice to Developer to draw upon the security an amount sufficient to complete or
correct said work and compensate the County for its reasonable costs and expenses related to said
draw.
2.3.2 If the original security presented to the County (or any extension thereof) is
due to expire and the work or correction are not yet completed, and Developer has not provided
substitute security or the bank's written extension to the original collateral ( as it may have been
previously extended), the County shall draw on the security according to the provisions set forth
in this Section 2. It is Developer's responsibility, with or without notice, to ensure that the
security is extended, or that substitute security is provided in a form acceptable to the County, at
least ten days prior to its expiration. If security is neither extended nor substitute security
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 security in a timely
manner as required by this agreement.
2.3.3 If the security 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.
2.4 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 security, or in accomplishing an extension of its expiration.
2.5 Materials and Payment Bond. In addition to the Collateral described herein, the
Developer shall provide to the County a Materials and Payment Bond to ensure that all
contractors, suppliers and materialmen are paid.
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2.6 Landscape Plan Collateral.
2.6.1 In addition to collateral requirements set forth herein as the landscape
improvements are completed, the County Engineer shall inspect them, and upon approval and
acceptance, shall require the Developer to post ten percent (10 %) of the cost of such landscape
improvements until the improvements have been maintained in a satisfactory condition for two
years.
3. INSURANCE and INDEMNIFICATION.
3.1 Indemnification. Developer shall indemnify and hold the County harmless from any
and all claims made against the County by any contractor, subcontractor, materialmen, 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 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 Subdivision 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.
3.3 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
Subdivision and/or Subdivision 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 Subdivision 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.
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4. GENERAL PROVISIONS.
The following shall apply to all Subdivision Improvements, including on -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 County (Chapter
V), as the same are in effect at the time of commencement of construction of the Subdivision
Improvements referred to herein.
4.2 Subdivision 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 maybe prescribed by law, from the time of completion of the Subdivision 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 Final Plat. The County agrees to the approval of the final plat of this
Subdivision, subject to the terms and conditions of this Agreement.
4.5 Final Plat Amendments. Where field changes or other circumstances have caused the
road, utilities, or other subdivision improvements to be constructed in locations different from
those shown on the approved plans, the locations of rights -of -way, easements, lot lines, building
envelopes, setback lines, or other attributes shown on the Final Plat shall be amended as
necessary to comply with Final Plat requirements of the Eagle County Land Use Regulations
4.6 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.
4.7 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
Subdivision, the obligations of the Developer under this Agreement as to that portion of the
subject Subdivision 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
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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 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.
4.8 Binding upon Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors, and assigns.
4.9 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 on -site Subdivision
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
4.10 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.
4.11 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.
4.12 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 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
,,, day of -: °, -' i 2003.
COUNTY:
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its
ATTEST: _.° BOARD OF COUNTY COMMISSIONERS
/
3, L \ : ': i I 1.‘ .,; \ ,: '- \, d 1
f \ f _ —� t � rE ' r . B b
Clerk to the Bo d o J Michael L. Gallagher, Chai rn
County Commissioners Address for giving notice: / --- --
P.O. Box 850
Eagle, CO 81631
(970) 328 -8685
DEVELOPER:
LESSOR: BERRY CREEK LIMITED LIABILITY
COMP
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i i i :t. (.1 i
By:
Its: 'yti --1 ?
Address for giving itice
401 Paseo Del Peralta
Santa Fe, New Mexico 87501
(505)820 -1818
STATE OF /-K12. )
ss:
County of )
-;The foregoing was acknowledged before me this � % day of C % - '
by L • ',,167 „.. `% , as ✓7 'l`` � -) of Berry Creek, LLC, a Colorado L i tie
• �k •F
; k
Company. , ••l ';
i JANICE K, `(-)
WITNESS my hand and official seal. SCOFIELD i 1
,
My commission expires --2 - ef Z ' ., c 1_a as
az a� e a t .
Notary.: ublic
if
11 11 11 111 111 1 111 II1 1 11
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1111'
CDIVI
THIRD AMENDMENT TO
.SAN E 5
SUBDIVISION AND ON -SITE IMPROVE * _
AGREEMENT FOR MILLER RANCH ENGIN
PHASE II AND PHASE III
THIS THIRD AMENDM L NT to the Subdivision and On -Site
Improvements Agreement for Miller Ranh Phase II and Phase III is entered into this 16 414-
day NOVEMBER-728047 by and between Berry Creek Limited Liability Company
ereinafter "Developer ") and the Board of County Commissioners of the County of
Eagle, State of Colorado (hereinafter "County").
Ja ai , 2005
WITNESSETH
WHEREAS, Developer and County entered into a Subdivision and On-
Site Improvements Agreement for Miller Ranch Phase II and Phase III on October 22,
2003 (hereinafter "Agreement ") and a First Amendment to that Agreement on January
13, 2004; and a Second Amendment to that Agreement on March 13, 2004.
WHEREAS, Section 1.2 of the Agreement provides in part that Developer
will enter into an agreement with a suitable contractor for the performance of the required
subdivision improvements; and
WHEREAS, Developer has negotiated with Tamerrel Excavation, Inc. to
perform the required subdivision improvements; and
WHEREAS, a portion of the subdivision improvements will be performed
by R.A. Nelson Associates; and
WHEREAS, Section 4.6 of the Agreement provides that the Agreement
may be modified from time to time provided that such amendment is in writing and is
signed by all parties.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements herein contained and contained in the Agreement to be kept and
performed by the parties hereto, it is hereby understood and agreed as follows:
1. The Agreement is amended by the addition of Section 1.7.1 which
shall read as follows:
"1.7.1. Scope of Work and Additional Cost of Improvements.
Developer has negotiated a contract with Tamerrel Excavation, Inc. for
the performance of the subdivision improvements which was attached
to the Agreement and prior amendments as Exhibit A. The parties
•} �.
understand that, in addition to the agreement with Tamerrel
Excavation, Inc. the Developer has also contracted with R.A. Nelson
Associates regarding certain Mill Loft Phase III Infrastructure work at
a cost of $464,973.53. See Mill Loft Phase III Infrastructure
Allowance Pricing (scope of work) which is attached here as Exhibit
A. A map showing the location of the infrastructure work to be
performed by RA Nelson Associates is attached hereto as Exhibit B.
Developer agrees to obtain a performance bond from RA Nelson
Associates to secure the successful performance of the Infrastructure
work performed by them ".
2. Paragraph 2.1 of the Agreement is hereby amended to read as follows:
"2.1 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 for purposes of the two year warranty period,
the Developer shall arrange to post security in an amount equal to ten
percent (10 %) of the contract price (which shall include work performed
by Tamerrel Excavation and/or R.A. Nelson), and it is agreed that the
contract price shall represent the actual costs of construction. Developer
shall be responsible for the condition of the Subdivision Improvements for
a period of two years after completion; this shall be guaranteed in the form
of a letter of credit or County will consider, but shall not be required to
accept, a guarantee bond from Developer in an amount and in a form
acceptable to the County in its sole discretion. The County agrees to
consider a maintenance bond as security under this paragraph so long as
the terms and conditions of such bond are acceptable to the County in its
sole discretion."
3. All other terms and conditions of the Subdivision and On -Site
Improvements Agreement for Miller Ranch Phase II and Phase III as well as any
amendments thereto not in conflict with this Third Amendment shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this lb day of .
.20
EAGLE COUNTY:
,GLE
(' County of Eagle, State of Colorado
By and Through its
"��fp�iFt)IIDI!P' * „ v a ' Board of ' ounty Commissioners
Attest:
Br e
Clerk to the Board of . e : 'w • . rn rn. Anevi tov
Coun om Chairman Pro Tem
2
Berry Creek Limited Liability
Comp.
By: �(`
Its: pt c?co2,
State of Colo 2, Ica )
)ss.
County of E f1 )
The foregoing was acknowledged before me this /S�day of %ec,c4lxr , 2004, by
Giro vi;-s as of Berry Creek Limited Liability
Company, a Colorado Limited Liability Company.
Witness my hand and official seal.
My commission expires a &r f , Zoos. . , , ♦• p,EL C'•,�
f.� �pTAR -NUS
Notary P bli • 0: r G :TO se 4
CO;O♦♦
MY COMMISSION EXPIRES:
OCTOBER 16, 2006
3
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r A R.A. NELSON
fine b u i l d e r s
June 2, 2004
Mill Loft PH III Infrastructure Allowance Pricing
Subcontractor Scope Of Work QTY Unit Unit $ Total $
Diamond A Exc Mob 1 LS $7,500.00 $7,500.00
Site Cut 520 CY $5.19 $2,700.00
Site Fill Allowance 14469 CY $4.75 $68,728.00
On Site Import 0 CY $0.00 $0.00
Subgrade Prep 43960 SF $0.35 $15,386.00
Curb & Gutter Prep 1306 LF $1.00 $1,306.00
Sidewalk Prep 9572 SF $1.50 $14,358.00
Patio Prep 5470 SF $1.20 $6,564.00
Site Grading/Topsoil Spread 19000 SF $0.20 $3,800.00
Patio Retaining Wall Ex & Back 653 LF $13.34 $8,710.00
Boulder Retaining Wall 0 LF $0.00 $0.00
6" Sewer Service _ 344 LF $36.00 $12,384.00
4" Water Service 315 LF $69.84 $22,000.00
Colorado Fire Suppression Tests 4 EA $250.00 $1,000.00
Gas Services (Trench Only) 850 LF $5.30 $4,505.00
Joint Shallows (Elec/Phone/TV) 225 LF $10.50 $2,363.00
Construction Water (PLUGGED #) 1 LS $1,000.00 $1,000.00
Diamond A Subtotal $171,304.00
Diamond A Alternates
Boulder Retaining wall 2935 SF $9.50 $27,882.50
Marcin Engineering Survey for Infrastructur work 1 LS $2,430.00 $2,430.00
(PLUG #)
Subtotal for Marcin Work $2,430.00
B & B Excavating Asphalt 37507 SF $0.90 $33,756.30
Hand Placed Asphalt 790 SF $2.25 $1,777.50
Asphalt Prep 38297 SF $0.73 $27,956.81
Asphalt Striping 1 LS $666.00 $666.00
Concrete Pan 415 LF $19.98 $8,291.70
Concrete Pan Prep 415 LF $5.58 $2,315.70
Sidewalk Pedestrian Ramps 4 EA $1,227.54 $4,910.16
HC Parking Ramps 3 EA $1,079.40 $3,238.20
18" Curb Prep 564 LF $4.68 $2,639.52
18" Curb 564 LF $17.34 • $9,779.76
24" Curb Prep 949 LF $5.54 $5,257.46
24" Curb 949 LF $19.98 $18,961.02
Survey for B & B 1 LS $2,430.90 $2,430.90
B & B Subtotal $121,981.03
Alternates for B & B
B & B Remobilization (PLUG) $750.00
B & B Saw cutting & demo asphalt 225 LF $1.50 $337.50
V ,
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Ground Control 4" Exterior Walkways 9190 SF $3.60 $33,084.00
Exterior Sidewalk Steps 370 LF $23.00 $8,510.00
4" Exterior Patios 5520 SF $3.60 $19,872.00
Ground Control Subtotal $61,466.00
Steven's Home Care Block Retaining wall w /drain & geo 4364 FF $17.00 $74,188.00
(Still awaiting final bid, verbal only)
Steven's Subtotal $74,188.00
Cook's Welding Supply /Install Metal Hand /Guardrails 18 Set $1,300.00 $23,400.00
(Pricing from PH I, applied)
Cook's Subtotal $23,400.00
Summary
Diamond A Subtotal $171,304.00
Marcin Survey for Diamond A $2,430.00
B & B Subtotal $121,981.03
B & B Remobilization (PLUG) $750.00
B & B Saw cutting & demo asphalt $337.50
Ground Control Subtotal $61,466.00
Steven's Subtotal $74,188.00
Cook's Subtotal $23,400.00
Mill Loft PH I11 Infrastructure Allowance $455,856.53
Mill Loft PH III Infrastructure Allowance Contingency (2 %) $9,117.13
Mill Loft PH 111 Infrastructure Allowance Total (Markup NIC) $464,973.66
Alternate #1 Boulder Retaining Wall ($46,305.50)
Qualifications
All qualifications from stip sum contract apply to this allowance
This allowance altemate for boulder retaining walls assume that boulders on site, no cost to contractor
This allowance does not include engineering of retaining walls, by others
This allowance does not include Perimeter sidewalks, as per plan
This allowance does not include topsoil strip, by others
This allowance does not include any import/export of soils
This allowance assumes suitable (no boulders over 16 ") structural material delivered to site by others, as directed by RANA
This allowance does not include any dewatering, shoring, or unsuitalbe soils
This allowance does not inlcude any winter conditions costs
This allowance does not include any site lighting or signage
• This allowance assumes that 3 carports will be constructed in the parking lot
This allowance does not include any storm sewer work as per plan by others
This allowance assumes existing utilities are at correct depth and location and require no adjustments
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