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09-21-2016 Base Camp Public Improvements AgreementEagle County, CO 201615826 Teak J Simonton 09/27/2016 Pgs: 10 04:40:07 PM REC: $56.00 DOC: $0.00 BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT with reduced Financial Guarantee THIS PUBLIC IMPROVEMENTS GREEMENT ( "Agreement"), made and entesed on 11�--�z7 2016, is by and among AettSe hJ), ..s �t-° '( "Owner"), and the Town of Avon, a Colorado home rule municipality ( "Town "). RECITALS WHEREAS, the Owner desires to enter into a Public Improvements Agreement ( "Agreement ") with the Town; and WHEREAS, pursuant to the Municipal Code, the Town desires to make reasonable provisions for completion of certain public improvements ( "Public Improvements ") as depicted on the plans approved by the Town for the EG�d� -1� , dated �cUl�; ( "Approved Plans ") and as set forth in Exhibit A: Approved Plans attached hereto and incorporated herein by reference, together with minor changes approved by the Town Engineer. In general the Public Improvements are a footpath for fishing access to the Eagle River and certain right -of -way crosswalk improvements; and WHEREAS, the Owner is responsible for the completion of the Public Improvements; and WHEREAS, there is no final subdivision plat, development application or building permit that requires the installation and completion of the Public Improvements, and Owner desires to enter into this Agreement to set forth certain requirements for the installation, completion, acceptance and warranty for the Public Improvements without the provision of a financial guarantee for the completion of the Public Improvements, and acknowledges and agrees to certain restrictions on development applications until such time as the public improvements are completed and accepted unless Owner provides required financial guarantee. AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Completion of Work. (a) Performance. Owner agrees to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all Public Improvements and work incidental thereto ( "Worlr") as depicted on BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 1 of 10 the Approved Plans and as set forth in Exhibit A: Approved Plans. Owner further agrees that Owner will be responsible for all costs of Public Improvements as assigned. Said Work shall be performed in accordance with the Approved Plans. (b) Time for Completion of Public Improvements. Owner agrees to complete Public Improvements within two (2) years of the date of this Agreement. (c) Inspection Procedures. All Work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, Upper Eagle River Water Authority, Excel Energy, Century Link Communications, Comcast or any other utility ( "Utilities "), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All Work shall not be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner or Owner's agents from any responsibility or obligation to assure that all Work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (d) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Owner and subject to the limitations set forth in Paragraph 5 below. (e) Notice _of Non - Compliance. In the event that the Town through its inspectors reasonably determines that the Public Improvements are not in compliance with the Approved Plans, it shall give written notice of such non - compliance ( "Notice of Non - Compliance ") to the Owner. The Notice of Non - Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non - Compliance must be provided to the Owner within five (5) working days after the date of the inspection. (1) Final Acceptance. Upon completion of the Public Improvements, inspection by the Town to verify compliance of the construction with the Approved Plans, receipt of the As -Built Plans, and receipt of adequate financial guarantee for the warranty period ("Warranty Guarantee "), the Town shall provide final acceptance of the Public Improvements in writing to the Owner. 2. Security for Site Work. Owner shall provide an irrevocable letter of credit in a form acceptable to the Town Attorney or provide a cash deposit, in the amount of $ ' Or , to restore the site, including but not limited to drainage and si eroon control, in the event that the construction of the Public Improvements is unreasonably delayed or abandoned. BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 2 of 10 3. Restriction on Development Approvals. The issuance of a Temporary Certificate of Occupancy shall be withheld until final completion and acceptance of the Public Improvements, at the discretion of the Town, or shall be conditioned upon the provision of financial guarantee for completion of the Public Improvements if requested by the Owner. Owner agrees and covenants that Owner shall not sell any units prior to the final completion and acceptance of the Public Improvements by the Town and further agrees to reference this Agreement in any purchase and sales agreement entered into for the sale of a unit to a third party. 4. Warranty Period. The Public Improvements shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after acceptance of all the Work by the Town. The Town shall use best efforts to review and accept or reject the Work in writing within 10 days after notice from Owner to Town that the Work is complete and ready for acceptance. In the event of any such defect, the Town may require Owner to correct the defect in material or workmanship. The Owner shall provide a Warranty Guarantee as a financial security during the warranty period. (a) Amount of Guarantee to Secure Warranty. The amount of the Warranty Guarantee during the warranty period shall be a percentage of the total actual cost of completion of Public Improvements in the amount set forth below: Total Construction Cost Percent to Secure Warranty $0.00 — $500,000.00 10 $500,000.00 — $1,000,000.00 7%z $1,000,000.00 and over 5 (b) Corrective Work. In the event any corrective work is performed during the two (2) year warranty period then the warranty on such corrected work shall be extended for two (2) years from the date on which the corrected work is completed. Guarantee equal to ten percent (10 %) of the cost of any corrected work, as estimated by the Town Engineer, shall be retained by the Town or immediately paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance with Paragraph 4(a) above, for a period of two (2) years from the date of completion of the corrected work. (c) Form of WarranttyGuarantee. The form of the Warranty Guarantee shall be as set forth in Avon Municipal Code Sub - Sections 7.32.100(e) and (i) as may be amended from time to time. 5. Engineering Certification. Upon completion of portions of the Public Improvements, Owner will cause Owner's engineers (who shall have been actively BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST 2016 Page 3 of 10 engaged in observing the construction of the Public Improvements and shall be registered engineers in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on -site observation, review of sufficient construction - observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Public Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as- constructed plans and other supporting documentation shall be submitted with the certification. The as- constructed plans shall be submitted on paper and in one of the following digital formats: AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 6. Inspection Fees. Fees for inspections, if any, shall be paid by the Owner within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out -of- pocket) costs of the Town plus an administrative fee in the amount of fifteen (15 %) percent of the direct costs, but in no event will the total amount of such inspection fees exceed five percent (5 %) of the actual aggregate costs for such Public Improvements. 7. No Ob . ation of Town_ to Complete Improvements. Owner agrees that in the event Owner shall fail to perform its obligations as set forth herein, the Town shall be under no obligation to complete any of the said Public Improvements or to issue permits for development served by the Public Improvements. 8. Non- Liability_ of Town: Indemnification. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the Work specified in this Agreement, nor shall the Town, nor any officer, agent or employee thereof, be liable for any persons or property injured by reason of the nature of said Work. To the extent permitted by law, Owner hereby agrees to indemnify and hold harmless the Town, and any of its officers, agents and employees against any losses, claims, damages or liabilities to which the Town or any of its officers, agents or employees may become subject, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Owner, as hereinbefore stated. Furthermore, the Owner shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. 9. Rights of Town in Event of Default. In the event that Owner defaults in whole or in part in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Owner of such default during which period of time the Owner fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Public Improvements specified on BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 4 of 10 Exhibit A: Approved Plans. All costs paid by the Town to correct or complete the Public Improvements, including cost of personnel, equipment, materials, studies, legal and other amounts expended by the Town to perform the Public Improvement construction responsibilities of Owner, together with an administrative fee in the amount of fifteen percent (15 %) of the total costs incurred by Town shall be paid by Owner. Any such costs relating to the Public Improvements, which have not been reimbursed by Owner, shall be a debt of Owner. In addition to other remedies stated in this Agreement, if the Owner is in default of this Agreement, the Town may withhold the acceptance or processing of development applications and may withhold the approval of development permits for or on any property which would be served by the Public Improvements until such time as the Public Improvements are completed. 10. Letter Ce_rtifymg Com letion „and Final Acceptance of Improvements. When all Public Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired and provided that Owner is not in default under any of its obligations to the Town under this Agreement, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Owner under this Agreement have been satisfied ( "Certification "). The Town shall use best efforts to issue the Certification within 30 days after Owner's request therefor. 11. Non - Liabili of Town for Indirect orConseQuential_Damages or Lost_Profts. The Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits, which result or arise from the Town's declaration that Owner is in default of the Agreement, so long as the Town acts in good faith. 12. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated in this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 13. As,___si nment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Owner without the express written consent of the Town Council of the Town. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council of the Town. No assignment shall release the Owner from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST 2016 Page 5 of 10 14. No Third ._Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relation with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub - consultant or sub - contractor of the Owner. Absolutely no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. 15. Amounts Past Due. Any amounts due to the Town of Avon under this Agreement which are past due shall bear interest at the rate of one and one -half percent (I V2%) per month (eighteen percent [18 %] per annum, compounded annually).. 16. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 17. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. 18. Venue. Venue for any litigation arising out of this Agreement shall be in the District Court for Eagle County, Colorado. [Signature Page Follows] BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 6 of 10 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. ATTEST: Town Clerk BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 7 of 10 EXIHBIT A: APPROVED PLANS APPROVED PLANS: IbKeie�N� Construction Drawings Town of Avon, Colorado Lti S , 20 lb Sheets 1 through 4 7"j Tj, Release Date: , 20 Prepared by: BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 8 of 10 EXHIBIT B: COST ESTIMATE PUBLIC E%IPROVEMENTS CONSTRUCTION COST ESTIMATE BASE CAMP PUBLIC IMPROVEMENTS AGREEMENT AUGUST _, 2016 Page 9 of 10 ALPINE ENGINEERING INC. September 9, 2016 Mr. Jim Gregg Gregg and Company Builders P.O. Box 526 Wolcott, Co 81655 Re: Base Camp Revegetation Estimate Dear Mr. Gregg, At your request, we have prepared an estimate of the cost to place or replace topsoil and vegetation the Base Camp site. The estimated disturbed area is 42,776 sf or approximately 1 acre. Of this area, approximately half of the site, 20,116 sf, is currently road base or asphalt. It is assumed that topsoil would need to be imported for this area. The remaining portion of the disturbed area is native or landscaped and is assumed to contain topsoil suitable for revegetation. The estimate is as follows: 20,116 sf @ 4" of topsoil import & place �z 6705 cf = 248 cy. 248 cy @ $40 /cy = $9,920 22,660 sf @ 4" of topsoil place= 7553 cf :z� 280 cy. 280 cy @ $15 /cy = $4,200 5,540 sf of erosion control blanket on steeper areas @ $1 /sf= $5,540 1 acre of revegetation @ $3900 /ac= $3,900 Tom $23,560 Please contact should you have any questions. Sincerely, Tim Leininger Cc: Tommy Gregg File PO Box 97, Edicards. Colorado 81632 970 -926 -3373