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HomeMy WebLinkAboutresolution.council.022-98 RESOLUTION NO. Z2- Series of 1998 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A ROAD MAINTENANCE AGREEMENT BETWEEN PEARCE EQUITIES GROUP 1I LIMITED LIABILITY COMPANY AND THE CITY OF ASPEN FOR THE MARRON CREEK CLUB SUBDiVISION, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT(S) ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Road Maintenance Agreement between the City of Aspen, Colorado, and Pearce Equities Group II Limited Liability Company a copy of which contract is annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves that Road Maintenance Agreement between the City of Aspen, Colorado, and Pearce Equities Group rr Limited Liability Company, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: ~J~-fi~' /G:> ,1998. JohnS.~Bennett(~~ Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of tha resolution adopied by the City Council of the City of Aspen, Colorado, at a meeting held ~ t.~ ,1998. ROAD MAINTENANCE AGREEMENT BETWEEN PEARCE EOUITIES GROUP II LIMITED LIABILITY COMPANY THE CITY OF ASPEN FOR THE MAROON CREEK CLUB SUBDIVISION This Agreement is made this __ day of , 1998, by and between PEARCE EQUEUIES GROUP II LIMITED LIABILITY COMPANY, a Utah limited liability company CPearce") and the CFFY OF ASPEN, a home rule municipality of the state of Colorado ("City"). WHEREAS, Pearce and Pitkin County did enter into that certain Road Maintenance Agreement dated August 25, 1993, and recorded in the Pitkin County Recorder's Offic~ at Book 730, Page 739, for road maintenance of certain publicly dedicated public roads at the Maroon Creek Club Subdivision; and WHEREAS, portions of the roads referenced in the Road Maintenance Agreement between Pearce and the County have been annexed into the City of Aspen as part of the Maroon Creek Club Subdivision Annexation; and WHEREAS, the parties hereto desire to enter into this agreement for the provision of road maintenance services for'those roads within the Maroon Creek Club Subdivision that are now part of the City of Aspen. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements hereinafter set forth, and for good and valuable consideration, the parties hereto agree as follows: 1. Maintenance Work. Pearce agrees to furnish all labor, materials, equipment, tools and services necessary and incidental to perform and complete in a workmanlike matter all work required for the maintenance, including snow removal and signage, repair and improvement to Roads (the "Maintenance Work"). The Maintenance Work shall not extend to any paving, surfacing or other road improvements to the unpaved portions of existing Stage Road northerly of its intersection with new Stage Road. 2. Term: The term of this Agreement shall become effective on September 30, 1997. 3. Payments for Regular Maintenance Work. For the performance of the regular Maintenance Work to the Roads as described in Exhibit "A" attached hereto the City agrees to pay Pearce on or before Aprill each year $I0,000 per mile of roadway (the "Regular Maintenance Payment"). Commencing with the Regular Maintenance Payment due for the second year of this Agreement and each year thereafter during the term hereof, the Regular · Maintenance Payment due Pearce shall be increased, but not decreased, in accordance with changes for the prior calendar year in the U.S. Department of Labor's Bureau of Labor Statistic's Consumer Price Index All Urban Consumers, U.S. City Average, All Items. ?~"' 4. Payments for Major Capital Improvements. A. ' Major capital improvements to the Roads shall consist of chip sealing (anticipated to be necessary every 5 to 7 years) and repaving (anticipated to be necessary every 12 to 15 years). For such capital improvements, the City agrees to pay Pearce an amount to be estimated by the Director of Streets (the "Director") as the cost of such improvements as if the work were to be performed by the City. Nothing herein shall prevent Pearee from performing major capital improvements earlier or more often than regularly scheduled by the City; however, the City shall be under no obligation to pay Pearce for major capital improvements in amounts greater than the cost to the City as if regularly scheduled and when such work is performed earlier or more often by Pearce an appropriate adjustment shall be made to the amount due Pearce from the City. Payments for major capital improvements shall be made by the City to Pearce at such time as a "qualified road contractor" as described in Paragraph 5B. below has entered into a subcontract with Pearce to perform such work. B. All major capital improvements shail be done under the general supervision and direction of the Director or his designee. The Director shall decide any and all questions which may arise as to the quality and acceptability of materials furnished, work performed, rate of progress of the work, contract interpretation and change orders (within the limits of his authority). ,,,~., 5. Assignment and Subcontracting. Pearce may assign or Subcontract its obligations hereunder as follows: A. Pearee shall be permitted to assign this Agreement to the Maroon Creek Club Master Association or similar entity constituted to provide perpetual maintenance to the New Roads whereupon Pearce shall be released from all further obligations hereunder. B. Pearce or any permitted assignee of Pearce may subcontract its obligations hereunder. Major capital improvements may only be subcontracted with the consent of the City to a qualified mad contractor and such subcontractor shall be bound by the terms of this Agreement. This Agreement shall not be construed as creating any contractual relationship between any subcontractor and the City 6. Indemnification and Insurance Rectuirements. A. Pearce and any subcontractor shall release, discharge, indemnify and hold harmless the City and its officials, employees, agents and representatives from and against liability for any claim, demand, loss, damages, penalty, judgment, expenses~ costs (including costs of investigation and defense), fees (including reasonable attorney and expert witness fees) or compensation in any form or kind whatsoever for any bodily injury, death, personal injury or property damage arising out of or in connection with any negligent act, intentional act, error or /,~..,. omission by Pearce or any subcontractor (including, by definition~ its officials, employees, subcontractors, agents and representatives) or for any resulting liability alleged to accrue against the City on account of Pearce's or any subcontractor's acts, errors or omissions; provided, however, that such indemnity shall not be construed as an indemnity for bodily injury or property damage arising from the sole negligence or intentional acts of the City or its employees. Pearce shall investigate, process, respond to, adjust, provide defense for and defend, pay or settle all claims, demands, or lawsuits related hereto within the scope of said indemnity at its sole expense and shall bear all other costs and expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. B. To fund the above indemnity, Pearce may: (i) secure and maintain for the term hereof such insurance policies, from companies licensed in the State of Colorado, as will protect itself, the City (with the City as named insured), and others as specified, from claims for bodily injuries, death, personal injury or property damage, which may arise out of or result from Pearce's or any subcontractor's acts, errors or omissions, or (ii) reimburse the City, pursuant to Paragraph 7F. below, to maintain such coverage. The following insurance coverage, at or above the limits indicated and including such endorsements as are indicated, are required I. Statutory Workman's Compensation Colorado Statutory Minimums 1I Comprehensive General Liability: Bodily Injury/Each Person $ 500,000 /Each Occurrence $1,000,000 Pr0pertyDamagefEachAccident $ 500,000 /Aggregate $ i ,000,000 Endorsements: Comprehensive Form, Premises/Operations, Underground, Explosions & Collapse Hazard, if necessary depending on construction, Broad Form Blanket Contractual (Hol~t Harmless C overage), Independent Contractors and Subcontractors, Personal Injury, with Employment Exclusion Deleted. Ill. COmprehensive Motor Vehicle Liability Insurance: Bodily Injury/Each Person $ 500,000 /Each Occurrence $1,000,000 Property Damage/Each Accident $ 500,000 /Aggregate $1,000,000 Endorsements: Any Auto, All Owned Autos, Hired Autos, Non-Owned Autos. IV. 'Special Coverages I. Performance Bond and Labor and Material Payment Bond (for projects greater than $25,000) 100% 2. Professional Errors and Omissions Insurance for projects requiring professional design or supervision: Each Occurrence $ 500,000 Aggregate $1,000,000 C. To provide evidence of the required insurance coverage, copies of Certificates of Insurance in a form acceptable to the City shall be filed with the Director no later than ten (10) calendar days prior to commencement of operations affecting the City. Thesl Certificates of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty (30) calendar days prior written notice sent by certified mall, return receipt requested, has been given to the City. D. In addition, these Certificates of Insurance shall contain the following clauses: (i) Underwriters and insurers shall have no right of recovery or subrogation against the City, it being the intention of the parties that the insurance policies so effected shall protect both parties and be primary coverage for any and all losses covered by the above described insurance. (ii) The insurance companies issuing the policy or policies shall have no recourse against' the City for payment of any premiums or for assessment under any form of policy. (iii) Any and all deductibles in the above described insurance policies shall be assumed by and be for the amount of, and at the sole risk of Pearce. (iv) Location of Operations shall be: "all operations and locations within the City of Aspen and effecting City government. E. Certificates of Insurance for all renewal policies shall be delivered to the Director at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on or after the expiration date of this Agreement, unless renewed. F. Peatee may elect to have the City supply the insurance coverage required in this Paragraph 7. If the City supplies the coverage, the City shall reduce the Regular Maintenance Payment by an amount sufficient to pay the pro rata share of the City's total premium for such coverage attributable to the Roads. 7. Termination. Either party shall have the right upon written notice to the other with or without cause to terminate this Agreement. Where notice of termination is given by the City, the City shall, from and after the effective date thereof, perform all Maintenance Work to the Roads. Where notice of termination is given by Pearce, the effective date shall not be less than sixty (60) days, unless the parties can agree to a shorter period, so as to allow the City adequate time to commence performance of Maintenance Work to the Roads. 8. Notices. Notices and other communications which may be given, or are required to be /~"' given hereunder, shall be in writing and shall be deemed given to a party when delivered personally or when deposited in the United States mail with sufficient postage affixed and addressed to such party at the respective address shown below: Pearce: Pearce Equities Group II Limited Liability Company 601 East Hyman Avenue, Suite 104 Aspen, Colorado 81611 Copy to: Ronald Garfield Garfield & Hecht, P.C. 601 East Hyman Aspen, Colorado 81611 City: City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Copy to: City Attorney City of Aspen 130 South Galena Street Aspen, Colorado 81611 9. Miscellaneous. A. Either party shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Agreement. If any court proceedings are instituted in connection with the rights of enfomement of remedies provided in this Agreement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. B. The failure of either party to insist upon the strict performance of any provisions of this Agreement or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future of any such provision. C. This Agreement may not be mended, nor may any rights hereunder be waived, except by an instrument in writing executed by the parties hereto. D. The interpretation, enforcement or any other matters relative to this Agreement shall be construed and determined in accordance with the laws of the State of Colorado. E. The parties agree, at the request of either one of them, to fully and promptly cooperate to correct any scrivener, clerical or other errors found in any legal descriptions, in any other provisions of this document or in any exhibits hereto. F. All provisions of this Agreement inure to the benefit of and are binding upon the parties hereto, their heirs, successors, assigns and personal representatives. G. In the event that Peame shall be delayed Or hindered from performing under this Agreement by reason of a natural disaster, weather or seasonal conditions, labor troubles, inability or procure materials, failure of power or other Utilities, war or other reasons beyond its Control, then the period for the performance hemunder shall be extended for a period equivalent to the period of such delay or hindrance. IN WITNESS WHEREOF, the parties have executed this Agreement as the day and year first above written. PEARCE: CITY: PEARCE EQUITIES GROUP I1 LIM1TED CITY OF ASPEN LIABILITY COMPANY, a Utah Aspen, Colorado limited liability company By: By: / _-~ James T. Pearce, Jr. Member JPW-O4/O3/98-G:\john\word~agfimaroon.doc