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HomeMy WebLinkAbout25 Memorandum of Understanding with CI and CountyMEMORANDUM OF UNDERSTANDING REGARDING THE UTILITY AND WATER INFRASTRUCTURE AT THE INTERSECTION OF STATE HIGHWAY 82 AT THE JUNCTION OF COUNTY ROAD 110 AND COUNTY ROAD 113 Carbondale Investments, LLC, a Texas limited liability corporation ("Developer"), and the County of Garfield, Colorado, a body politic and corporate through its authorized agents and representatives (the "County") (collectively "Party" or "Parties" means Developer or the County), desire to enter into this Memorandum of Understanding ("MOU") effective as of this day of 201 . RECITALS A. Developer is the owner and developer of approximately 160 acres of land located in Garfield County, Colorado ("Developer's Property") along the west side of State Highway 82 ("SH 82") between the City of Glenwood Springs and the Town of Carbondale. B. By Resolution No. 2011-84, dated December 19, 2011, and recorded at Reception No. 812357 in the real property records of the County, the Garfield County Board of County Commissioners (the "Board") approved the River Edge Colorado Planned Unit Development Plan, the River Edge Colorado Planned Unit Development Guide, and the River Edge Colorado Preliminary Plan, which plans contemplate development of Developer's Property with attached and detached single-family residential uses, community service uses, passive and active recreational uses, open space, limited sand and gravel mining uses, and limited agricultural uses (the "Project"). C. The Parties entered into a Memorandum of Understanding Regarding the Intersection of State Highway 82 at the Junction of County Road 110 and County Road 113, dated October 1, 2012, and recorded at Reception No. 824971 in the real property records of the County which the Parties agree was previously terminated. D. By Resolution No. , dated , and recorded at Reception No. in the real property records of the County, the Board approved amendments to the River Edge Colorado Planned Unit Development Plan and the River Edge Colorado Preliminary Plan. E. In order for the County and Developer to coordinate the construction of the Project's Water System Improvements (defined below) with the County's proposed reconfiguring of the junction of County Road 110, County Road 113 and the Frontage Roads, and necessary improvements to the existing right turn acceleration and deceleration lanes on SH 82 (collectively the "East Side Improvements"), the Parties desire to set forth in this MOU a framework for each Party's respective role with regard to the same. AGREEMENT NOW THEREFORE, in consideration of the premises and mutual promises and covenants herein contained, the Parties agree as follows: 013738\0001 \12422141.2 1. Recitals. The foregoing recitals are incorporated herein and made a part hereof. 2. Project Collaboration/Lead Representatives. The Parties agree to work cooperatively and in good faith and to diligently accomplish the planning, design, permitting, funding and construction of the East Side Improvements. Communication is vital throughout this process. The County lead representative for the design and construction of the East Side Improvements shall be the Public Works & Facilities Director, Betsy Suerth and Developer's lead representative shall be Pete Mertes with HDR, Inc. 3. Current Status of the East Side Improvements. The County has issued a Request for Proposal soliciting bids for the design of the East Side Improvements, selected a design and is [ percent ( %)] complete with the design. 4. Coordination with Water System Improvements. (a) The County acknowledges that Developer must install pipeline sleeves to accommodate future waterline installation for the Project (collectively, the "Water System Improvements"), within CR 110 and SH 82 in and around the junction of SH 82, County Roads 110 and 113 and the Frontage Roads. As such, the County shall coordinate with Developer to ensure that the Water System Improvements are included in the overall design and construction processes for the East Side Improvements. The County shall provide Developer with all intersection design information on a timely basis to allow Developer to design the Water System Improvements concurrently with the County's design of the East Side Improvements. Developer submitted preliminary plans for the Water System Improvements to the County which were incorporated into the County's preliminary design of the East Side Improvements. When completed, the County shall provide Developer with the County's final grading plan and the vertical and horizontal design of the East Side Improvements, in order for Developer to prepare its final design plans and specifications for the Water System Improvements. (b) Developer presented the preliminary plans for the Water System Improvements to the Roaring Fork Water and Sanitation District ("RFWSD") at its April 15, 2014 Board meeting and, upon receipt of the County's final plans for the East Side Improvements and preparation of Developer's final plans for the Water System Improvements, will coordinate with RFWSD on its review and approval of the final Water System Improvements design. Upon RFWSD approval, Developer will coordinate with the Cattle Creek Metropolitan District and the RFWSD (as joint applicants) to apply to CDOT Utility/Special Use Permitting for the Water System Improvements that are anticipated to be installed under CDOT frontage roads. (c) The County shall not initiate construction of the East Side Improvements until the Water System Improvements are approved for construction, as necessary, by the County, CDOT, RFWSD and the Colorado Department of Public Health and Environment. The County further agrees to facilitate and promptly review necessary pipeline permits, construction easements, and other right-of-way permits that may be required to install RFWSD facilities within the vicinity. Upon issuance of such approvals, the County shall coordinate its construction of the East Side Improvements with its construction of the 013738\0001\12422141.2 2 Water System Improvements to ensure the installation of the Water System Improvements occurs concurrently with the County's East Side Improvements. (d) The County shall be solely responsible for all costs of construction of the East Side Improvements, including costs associated with acquiring easements, rights of way, fee interests or other real property interests necessary for the East Side Improvements. Developer shall be solely responsible for, and shall reimburse the County for, all costs of construction of the Water System Improvements. Prior to the start of construction, the County and Developer shall agree upon the construction budget for the Water System Improvements based on estimates obtained by the Parties which estimates shall include ten percent (10%) for contingencies (the "Water System Improvements Construction Budget"). 5. Right to Terminate. If, prior to the start of construction, the County and Developer cannot agree upon the Water System Improvements Construction Budget, either Party may terminate this MOU by written notice to the other Party and all of the Parties rights and obligations under this MOU are terminated and neither Party shall be entitled to any reimbursement for costs incurred prior to or after the notice of termination. 6. Water System Improvement Project. (a) The County Public Works & Facilities shall function as the contract administrator and project manager for the Water System Improvements project (the "WS Project"). The County may elect to perform these functions by contract, utilizing the funds available from Developer, as set forth in Paragraph 7 of this MOU. As long as the WS Project is constructed in conformance with the Plans (defined below), the County shall have complete control, supervision, and direction over its equipment, personnel, and contractors, and over the manner and method of the performance of the WS Project. Developer shall have the right to have representatives present during the County's construction. The County shall be solely responsible for awarding and administering all engineering, administration, management and construction contracts for the WS Project, but will provide bid and other information as Developer may reasonably request at no cost to Developer so that Developer may monitor the progress of the WS Project and the expenditure of its financial contributions made under this MOU. (b) The County shall construct the WS Project in accordance with the final construction plans approved by the RFWSD and CDOT (the "Plans"). (c) Using available funds contributed under Paragraph 7 of this MOU, the County shall construct the WS Project. The County may employ any bid strategy or value engineering practice to lower costs to achieve construction of the WS Project in conformance with the Plans within the funds available in Paragraph 7 of this MOU. 7. Funding and Administration of Funds. In order to accomplish the WS Project, the Parties agree that the following provisions shall govern funding for construction: (a) Within five (5) business days after determination of the Water Systems Improvements Construction Budget, Developer shall deliver to the County a standby 013738\0001\12422141.2 3 letter of credit ("Guaranty") is also acceptable]. The Guaranty shall be in the amount of the Water Systems Improvements Construction Budget from a financial institution licensed to do business in Colorado in a form reasonably acceptable to and subject to the prior approval of the Parties. The Guaranty shall be maintained in full force and effect at all times by and at the sole cost of Developer and shall remain in the County's possession until completion of the WS Project or termination of this MOU. The terms of the Guaranty will provide reduction of the amount of the Guaranty by contributions made by Developer, and will allow for payment to the County upon presentation of written order stating the occurrence of non-payment by Developer of a specified amount owed under the terms of this MOU. [Guaranty provision subject to Developer approval, escrow (b) Estimated WS Project costs shall be calculated by the County after a determination of the lowest responsible bid and prior to award of the construction contract. The County shall provide Developer with written notice of the County's determination of the estimated WS Project. If the estimated WS Project exceeds the Water Systems Improvements Construction Budget, the Parties may: 1) renegotiate the Water Systems Improvements Construction Budget; or 2) Developer may provide written notice to the County that all of the Parties rights and obligations under this MOU are terminated and neither Party shall be entitled to any reimbursement for costs incurred prior to or after the notice of termination. (c) To facilitate the implementation of the WS Project consistent with the Plans and within the Water Systems Improvements Construction Budget, the County agrees to: 1) select the lowest responsible bid together with an appropriate escalator for construction costs and contingencies; 2) endeavor to require payment terms from the contractor awarded the bid that allow at least thirty (30) days from the receipt of an agreed payment request supported by documentation before payment is due; and 3) provide advance notice to and obtain Developer consent prior to acceptance of any change order that, if accepted, has the potential to exceed the Water Systems Improvements Construction Budget or modify or vary the scope of the WS Project. (d) The County shall award the contract for the WS Project and East Side Improvements within ten (10) days of County acceptance of Developer's Guaranty. (e) The County will provide Developer with at least monthly written statements of contributions payable by Developer and supporting written documentation. Developer shall tender funds to the County within thirty (30) days from Developer's receipt of the statement. 8. General Terms. (a) This MOU may not be assigned by either Party without the prior written consent of Developer or the Board, respectively, and may not be amended, or modified, except by a written agreement signed by Developer and the Board. If assigned, this MOU will be binding upon and inure to the benefit of the successor and assign. 013738\0001\12422141.2 4 (b) Headings are inserted in this MOU for ease of reference and do not define, limit, or prescribe the scope or intent of the provisions of this MOU or any part thereof. (c) If any provision of this MOU is deemed void, invalid, or unenforceable by any court or tribunal of competent jurisdiction, that provision shall be stricken from this MOU without effect on the remaining provisions of the MOU. (d) Neither party shall be liable for its failure to perform hereunder due to contingencies beyond its reasonable control, including but not limited to strikes, riots, war, and acts of God. (e) Nothing in this MOU shall be deemed or construed to limit, impair or restrain any of the powers and authority of the County conferred by constitution, statutes, regulations or other laws. (1) Nothing contained herein shall be construed to constitute the Parties hereto as partners or joint venturers, or as agents or representatives of the other. Except as expressly authorized herein, neither Party shall hold itself out as having the authority to speak for or otherwise bind the other. (g) Any notices, demands or other communications required or permitted to be given in writing hereunder shall be delivered personally, delivered by overnight courier service, or sent by certified mail, postage prepaid, return receipt requested, addressed to the Parties at the addresses set forth below, or at such other address as a Party may hereafter or from time to time designate by written notice to the other Party given in accordance herewith. Notice shall be considered given at the time it is personally delivered, the day delivery is attempted but refused, the day following being placed with any reputable overnight courier service for next day delivery, or, if mailed, on the third day after such mailing. TO DEVELOPER: Carbondale Investments, LLC 5121 Park Lane Dallas, Texas 75220 With a copy to: Brownstein Hyatt Farber Schreck Attn: Wayne F. Forman, Esq. 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202 Phone: 303.223.1100 TO THE COUNTY: Garfield County Board of County Commissioners Attn: 108 Eighth Street, Suite 213 Glenwood Springs, Colorado 81601 Phone: 970.945.5004 013738\0001\12422141.2 5 (h) This MOU may be executed in multiple counterparts, which taken together constitute but one and the same instrument and signatures hereto may be delivered by electronic means. IN WITNESS WHEREOF, the Parties hereto have caused this MOU to be executed by their duly authorized representatives effective as of the date first stated above. ATTEST: By: Clerk of the Board COUNTY: GARFIELD COUNTY BOARD OF COMMISSIONERS, COUNTY OF GARFIELD, COLORADO, a body corporate and politic By: Name: Its: Chair DEVELOPER: CARBONDALE INVESTMENTS, LLC, a Texas limited liability company By: Name: Its: 013738\0001\12422141.2 6 STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 201 by , as of Carbondale Investments, LLC. MY COMMISSION EXPIRES: Notary Address of Notary 013738\0001\12422141.2 7