HomeMy WebLinkAboutPACKET Town Board 2019-10-08The Mission of the Town of Estes Park is to provide high-quality, reliable services
for the benefit of our citizens, guests, and employees, while being good stewards
of public resources and our natural setting.
The Town of Estes Park will make reasonable accommodations for access to Town services,
programs, and activities and special communication arrangements for persons with disabilities.
Please call (970) 577-4777. TDD available.
BOARD OF TRUSTEES - TOWN OF ESTES PARK
Tuesday, October 8, 2019
7:00 p.m.
PLEDGE OF ALLEGIANCE.
(Any person desiring to participate, please join the Board in the Pledge of Allegiance).
AGENDA APPROVAL.
PUBLIC COMMENT. (Please state your name and address).
TOWN BOARD COMMENTS / LIAISON REPORTS.
TOWN ADMINISTRATOR REPORT.
CONSENT AGENDA:
1. Bills.
2. Town Board Minutes dated September 24, 2019 and Town Board Study Session
Minutes dated September 24, 2019.
3. Estes Valley Board of Adjustment Minutes dated June 4, 2019 (acknowledgment only).
4. Family Advisory Board Minutes dated September 5, 2019 (acknowledgement only).
5. Resolution 30-19 Acceptance to include the Town of Wellington to the
Intergovernmental Agreement for Solid Waste Programming and Infrastructure
Improvements.
6. Resolution 31-19 Support of the 2020 Colorado Parks and Wildlife Recreational Trail
Program Grant Application for Fall River Trail Project.
7. Resolution 32-19 Support of the Great Outdoors Colorado Grant Application for Big
Thompson River Recreational Area Picnic Shelter.
8. Contract for Conference Center Porte Cochere Repair with Saunders/Heath
Construction, LLC for $99,552.00 Budgeted.
9. Contract for 2019 Moraine Restroom Remodel with G2 Construction, LLC for
$126,030.00 Budgeted.
10. Reappointments to the Estes Valley Public Library District Board of Trustees:
John Krueger for a 4-year term beginning January 1, 2020 and expiring
December 31, 2023.
Kay Weston for a 4-year term beginning January 1, 2020 and expiring December
31, 2023.
PLANNING COMMISSION ITEMS: Items reviewed by Planning Commission or staff for
Town Board Final Action.
1. ACTION ITEMS:
A. PRELIMINARY CONDOMINIUM MAP, THE DIVIDE CONDOMINIUMS AT
WILDFIRE, WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA
ASSOCIATES LLC, APPLICANTS. Planner Woeber.
Prepared 09-27-2019
*Revised 10-04-2019
*
1
1
NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the agenda was
prepared.
Proposal for two buildings, with eight condominium units per building.
B. PRELIMINARY CONDOMINIUM MAP, THE MEADOW CONDOMINIUMS AT
WILDFIRE, WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA
ASSOCIATES LLC, APPLICANTS. Planner Woeber.
Proposal for nine buildings, with eight condominium units per building.
ACTION ITEMS:
1. RESOLUTION 33-19 BUREAU OF RECLAMATION REPAYMENT CONTRACT FOR
THE DELIVERY OF MUNICIPAL AND INDUSTRIAL WATER. Superintendent
Eshelman and Town Attorney Kramer.
Renewal of the contract for repayment of treated water delivered to the Bureau of
Reclamation’s Colorado-Big Thompson Project.
2. RESOLUTION 34-19 SUPPORTING LARIMER COUNTY SALES TAX BALLOT
ISSUE 1A. Town Administrator Machalek.
Consideration of Board-requested resolution of support for County sales tax ballot
measure for transportation and facilities.
3. ORDINANCE 26-19 APPROVING THE GROUND LEASE AGREEMENT WITH
ESTES PARK R-3 SCHOOL DISTRICT FOR THE CAREER AND TECHNICAL
EDUCATION (CTE) BUILDING. Town Administrator Machalek.
4. ORDINANCE 28-19 APPROVING THE GROUND LEASE AGREEMENT AND
RESOLUTION 35-19 APPROVING THE CONCESSION AGREEMENT WITH DNC
PARKS & RESORTS AT ROCKY MOUNTAIN PARK INN, INC. FOR THE ESTES
PARK CONFERENCE CENTER. Town Administrator Machalek and Town Attorney
Kramer.
ADJOURN.
*
2
2
Town of Estes Park, Larimer County, Colorado, September 24, 2019
Minutes of a Regular meeting of the Board of Trustees of the Town of Estes
Park, Larimer County, Colorado. Meeting held in the Town Hall in said Town
of Estes Park on the 24th day of September, 2019.
Present: Todd Jirsa, Mayor
Ron Norris, Mayor Pro Tem
Trustees Carlie Bangs
Eric Blackhurst
Marie Cenac
Patrick Martchink
Ken Zornes
Also Present: Travis Machalek, Town Administrator
Dan Kramer, Town Attorney
Bunny Victoria Beers, Recording Secretary
Absent: None.
Mayor Jirsa called the meeting to order at 7:00 p.m. and all desiring to do so, recited the
Pledge of Allegiance.
AGENDA APPROVAL.
It was moved and seconded (Norris/Bangs) to approve the Agenda with the removal
of Action Item #5, and it passed unanimously.
PUBLIC COMMENTS.
None.
TOWN BOARD COMMENTS
Trustee Cenac stated the Rooftop Rodeo was nominated by rodeo attending cowboys as
one of the best medium sized rodeos in the country.
Mayor Pro Tem Norris stated the Family Advisory Board meeting would be held on
October 3, 2019. He added there would be a joint meeting of the Town Board and Larimer
County Commissioners on September 30, 2019 to discuss future land use planning in the
Estes Valley. He stated progress has been made to decrease the amount of bear
incidents this season and asked the public to continue to secure vehicles and homes.
Trustee Zornes stated the Behavioral Health Policy Council meeting was held on
September 16, 2019 where recommendations were made for the distribution of $155,000
in community grants. The Council received 53 applications with 30 applications meeting
the minimum requirements. The Council made recommended awards for 18
organizations, including the Estes Valley Fire Protection District, Rural Estes Alliance for
Community Health and Estes Valley School District. He stated a Larimer County housing
study document was available in Town Hall.
TOWN ADMINISTRATOR REPORT.
Policy Governance Policy 3.8 Compensation and Benefits Report - Town Administrator
Machalek stated the policy must be reviewed every September and reported compliance
in all areas.
CONSENT AGENDA:
1. Bills.
2. Town Board Minutes dated September 10, 2019 and Town Board Study Session
Minutes dated September 10, 2019.DRAFT3
3
Board of Trustees – September 24, 2019 – Page 2
3. Estes Valley Planning Commission Minutes dated August 20, 2019 and Planning
Commission Study Session Minutes dated August 20, 2019 (acknowledgment
only).
4. Agreement with JVA Consulting Engineers for Engineering Services for Prospect
Mountain Water Distribution system upgrades.
5. Clarification of Town Prosecutor Reporting to Town Attorney.
6. Revised Board Policy 101, Division of Responsibilities.
7. Intergovernmental Agreement with CDOT for Congestion Mitigation and Air Quality
Grant Funding for construction of Intersection Improvements on US36 &
Community Drive.
8. Acceptance of Town Administrator Policy Governance Monitoring Report.
9. Parks Advisory Board Minutes dated August 15, 2019 (acknowledgment only).
10. Transportation Advisory Board Minutes dated August 15, 2019 (acknowledgment
only).
It was moved and seconded (Blackhurst/Zornes) to approve the Consent Agenda,
and it passed unanimously.
REPORT & DISCUSSION ITEMS: (Outside Entities).
1. ESTES PARK HIGH SCHOOL MONTEVERDE SCIENCE EXCHANGE. A
presentation was provided to the Board by school district students who traveled to
Monteverde, Costa Rica as part of a science exchange program. Presenting
students included Sawyer Basch, Carter Florence, Gissel Escorcia Rodriguez and
Krystal Gonzales Rojas. The presentation included education information related
to the climate, environment, organisms, species and photos of their experience.
PLANNING COMMISSION ITEMS: Items reviewed by Planning Commission or staff for
Town Board Final Action.
1. CONSENT ITEMS:
A. PRELIMINARY CONDOMINIUM MAP, THE DIVIDE CONDOMINIUMS AT
WILDFIRE, WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC., RDA
ASSOCIATES LLC, APPLIANTS. Applicant request to continue item to
October 8, 2019.
B. PRELIMINARY CONDOMINIUM MAP, THE MEADOW CONDOMINIUMS
AT WILDFIRE, WILDFIRE ROAD, WESTOVER CONSTRUCTION, INC.,
RDA ASSOCIATES LLC, APPLIANTS. Applicant request to continue item
to October 8, 2019.
It was moved and seconded (Norris/Martchink) to approve the
continuance of Consent Items 1.A and 1.B to October 8, 2019, and it
passed unanimously.
ACTION ITEMS:
1. ORDINANCE 24-19 AUTHORIZING THE ISSUANCE OF THE SERIES 2019
POWER AND COMMUNICATIONS REVENUE BONDS. Trustee Bangs recused
herself from the item. The Town has been reviewing the possibilities to establish
broadband service in Estes Park. In 2014 the Town partnered with the Estes Park
Economic Development Corporation to assess the demand for broadband services
in the area and in 2015 the voters approved the right to provide broadband services
with 92% of voters in favor. In 2016, the Town contracted with Jill Mosteller, Ph.D.
to conduct a rate study which confirmed the demand for broadband in the area. In
2019 the Board approved the expansion of the Light and Power Enterprise Fund
to include communication facilities and a name change toDRAFT
4
4
Board of Trustees – September 24, 2019 – Page 3
“Power and Communication Enterprise Fund”. Additionally, the Board approved a
budget amendment authorizing the use of $3,000,000 of the Fund to start the
buildout of a pilot area for broadband service installation. In order for the Town to
complete construction and operational startup of the proposed municipal
broadband system the Town would issue Power and Communication Enterprise
Fund Revenue Bonds. The proposed bonds would be sold using a negotiated sale
process as described in Town Policy 605 Debt Management. Staff has worked
with the Town’s Financial Advisor Jim Manire of Hilltop Securities Inc., Bond
Attorney Richard Buddin of Kutak Rock LLP, and Underwriter Bryan Stelmack of
Stifel, Nicolaus and Co. Inc. and others to develop the financing structure. The
proposed bond issuance would finance refunding of $3,030,000 outstanding Light
and Power Revenue Bonds Series 2007; the smart grid system for the Town’s
Light and Power Facilities; and the installation of a fiber-to-premises broadband
network. Director Hudson stated the bond principal amount, together with the
premiums earned on the sale of the bonds, would be designed to achieve the
desired $33 to $35 million in funding. The debt would be repaid through a
combination of electric and broadband revenues. Staff anticipates an October 29,
2019 bond sale date with ultimate settlement in November 2019. He stated the
bond ordinance sets the parameters for the bond and the exact interest rates would
be available at the time of the bond sales. The estimated cost of build out is $26
million. Board questions have been summarized: when does staff anticipate cash
flow projected in relation to the timeline; whether the current electric rates are
sufficient to cover the additional bonds. Board concern was stated for the unknown
interest rates. David Batey/County citizen voiced his support for the item as an
investment in the present and future. There being no further discussion it was
moved and seconded (Cenac/Norris) to approve Ordinance 24-19 authorizing
the issuance of Power and Communication Revenue Bonds Series 2019A
and 2019B, and it passed with Trustee Bangs recusing herself.
2. ORDINANCE 25-19 ADOPTING TITLE 18 OF THE ESTES PARK MUNICIPAL
CODE RELATING TO FLOOD DAMAGE PREVENTION. At the June 25, 2019
and July 9, 2019 study sessions staff discussed the Town’s floodplain
management program and participation in the National Flood Insurance Program
(NFIP). Staff has made efforts to update the floodplain regulations to meet the
NFIP minimum standards and conducted dialogue with CWCB, FEMA and
Attorney Kramer regarding final edits to the proposed floodplain regulations.
Advantages of participation through adoption of Ordinance 25-19 include:
maintaining eligibility for NFIP participation; improved protection of lives and
property in flood-prone areas; and cost burden would be placed on the applicant
versus the Town for Letter of Map Revisions (LOMR) on projects which require a
Floodplain Development Permit. The intent of the ordinance was recommended by
CWCB and FEMA to update the regulations to the Colorado Hazard Mapping
Program (CHAMP) data as part of the regulatory basis for establishing the Special
Flood Hazard Area in Estes Park in the interim until a new Flood Insurance Study
and corresponding Flood Insurance Rate Maps are adopted by FEMA. Staff stated
the CHAMP data was important due to the floodplain mapping differing significantly
from what currently exists. The new floodplain is showing a slightly smaller
floodplain. Change in floodplain conditions must be mapped regularly. The Town
is placed at risk of baring the cost of a LOMR to bring the maps into current record.
The maps represent an existing condition at the time of the study and should be
updated when change occurs. The Town can better serve the community by
adopting the flood damage prevention code. Board comments have been
summarized: how potential buyers are notified which properties are located in a
flood hazard area; interest in more discussions with the public; Board concern was
stated over the lack of final FEMA floodplain maps; when FEMA anticipates final
maps and when the Town can expect the update, and whether it would make sense
to wait 45 days until the Town finds out if they are a grant recipient for a flood
channel project. It was moved and seconded (Martchink/Norris) to approve
Ordinance 25-19, and it passed with Mayor Jirsa voting “No”.
3. ORDINANCE 26-19 APPROVING THE GROUND LEASE AGREEMENT WITH
ESTES PARK R-3 SCHOOL DISTRICT FOR CAREER AND TECHNICALDRAFT
5
5
Board of Trustees – September 24, 2019 – Page 4
EDUCATION (CTE) BUILDING. Item to be considered at the October 8, 2019
meeting. No action required.
4. FEE SUBSIDY REQUEST, TOWN UTILITIES, 380 COMMUNITY DRIVE, ESTES
PARK HIGH SCHOOL (CTE) BUILDING. The Estes Park High School intends to
build a CTE building with an attached greenhouse at 380 Community Drive. The
project is estimated at $1.4 million and is currently $200,000 over budget. The
school requested funding to subsidize the water tap fees and electrical line
extension costs, estimated at $83,898. Staff stated there is no adopted utility fee
waiver policy in existence. Principal Scott provided an overview of the project and
the request for fee waiver. Students are interested in helping the environment by
introducing solar and wind power to operate the facility. The school is awaiting the
title commitment from the Town for ownership of the property. The school
requested a fee subsidy for the utilities at the proposed development. Board
questions have been summarized: whether the school has reached out to the
Community Center or other organizations for funding; if the Board granted the
waiver where would the remining over budgeted amount be allocated from;
whether the project would be expanded to all students in the school district; the
Board requested the number of students which are enrolled in the programs
currently; whether the school would offer adult education programs; whether there
would be partnership opportunities with the Town in respects to greenhouse use
by the Parks Division; and whether the school would partner with community
colleges for educational opportunities. It was moved and seconded
(Martchink/Cenac) to approve a subsidy not to exceed $21,140.80 for the
School’s CTE project, and it passed unanimously.
5. ORDINANCE 27-19 AMENDING §2.04.060 OF THE ESTES PARK MUNICIPAL
CODE TO ALLOW REMOTE PARTICIPATION BY TRUSTEES IN MEETINGS
OF THE BOARD. Item was removed from the agenda. No action was taken.
REPORT & DISCUSSION ITEMS:
1. REVIEW OF DRAFT IGA OPTIONS FOR THE JOINT TOWN BOARD/COUNTY
COMMISSION MEETING ON SEPTEMBER 30, 2019. At the Boards request
Director Hunt reviewed the draft Intergovernmental Agreement (IGA) options for
the upcoming joint meeting between the Town Board and County Commissioners.
The first option would extend the existing agreement by means of a sixth
amendment to the IGA with minor changes for a one-year term providing the Town
and County time to reach a long-term agreement. The second option would involve
the adoption of the Town of Estes Park Development Code which would
encompass the current Estes Valley Development Code with revisions. He stated
the discussion would provide direction for the joint meeting. Board comments have
been summarized: Trustee Cenac questioned whether the consumer price index
increase had been collected as outlined in the original IGA; concern was stated
for two separate codes for the Estes Valley and neighboring properties; citizen
input received by the Board appeared to show varying support for each option
without consensus; concern there is a fear factor regarding separate development
codes creating significant differences between the Town and County boundaries;
the Board stated Town staff should not be reviewing County related items; and
interest was voiced to review the potential of a growth management area and how
to establish a growth management area when the majority of the surrounding area
is National Park, forests etc. Staff was directed by the Board to review Board
concerns and provide growth management options at the September 30, 2019
meeting.
Whereupon Mayor Jirsa adjourned the meeting at 9:34 p.m.
Todd Jirsa, Mayor
Bunny Victoria Beers, Recording Secretary DRAFT6
6
Town of Estes Park, Larimer County, Colorado September 24, 2019
Minutes of a Study Session meeting of the TOWN BOARD of the Town of
Estes Park, Larimer County, Colorado. Meeting held at Town Hall in the
Board Room in said Town of Estes Park on the 24th day of September,
2019.
Board: Mayor Jirsa, Mayor Pro Tem Norris, Trustees Bangs,
Blackhurst, Cenac, Martchink, and Zornes
Attending: Mayor Jirsa, Mayor Pro Tem Norris, Trustees Bangs,
Blackhurst, Cenac, Martchink, and Zornes
Also Attending: Town Administrator Machalek, Town Attorney Kramer and
Recording Secretary Disney
Absent: None
Mayor Jirsa called the meeting to order at 5:00 p.m.
TRUSTEE REMOTE/ELECTRONIC MEETING PARTICIPATION.
Town Administrator Machalek presented a discussion on allowing Town Board
members the ability to participate in Town Board meetings remotely. Currently the
Municipal Code does not allow Board members to participate remotely and all actions
require the concurrence of the majority of those Trustees present. Upon Attorney review
of the state statutes, remote participation may be allowed through a revision to the
Municipal Code. Should the Board determine to allow remote participation, staff
requests the establishment of a Board policy to address circumstances of remote
participation, frequency, and method for participation, etc. The Board discussed timeline
of implementation, audio and video technological limitations, and which limits might be
imposed on remote participation. It was determined to delay discussion on remote
participation. Audio and video technological components would be reviewed as part of
Board Room upgrades for the 2019 Budget.
PAID PARKING DISCUSSION PREVIEW.
Manager Solesbee provided a brief background on the Downtown Parking Management
Plan and requested the Board provide input on what data they would like to discuss on
October 9, 2019. The Board requested information be provided on turnover effects to
visitor experience and sales revenue, important data points, staff interpretation of data,
analysis of parking supply, budgetary impacts, and staff recommendations.
TRUSTEE & ADMINSTRATOR COMMENTS & QUESTIONS.
Trustee Martchink stated the Parks Advisory Board has created the Arts Advisory
Committee to assist in Arts in Public Places, and have considered possible
commemorations of the 100 year anniversary of the 18th Amendment.
FUTURE STUDY SESSION AGENDA ITEMS.
Town Administrator Machalek stated staff has requested to cancel the December 10,
2019 Study Session due to the Special Election. and the Board determined to cancel
the Study Session.
Trustee Blackhurst requested the board discuss reinstitution of trolley services outside
of Town limits, and a discussion on scheduling the Citizen Information Academy for
even years as opposed to odd years; he stated this could assist in creating interest in
Town Board candidacy. Public Information Officer Rusch stated holding the Citizen
Information Academy during even years would cause scheduling conflicts with the
Regular Municipal Election and the Citizen’s Police Academy. It was determined to add DRAFT7
7
Town Board Study Session – September 24, 2019 – Page 2
the discussion of Trolley services to a future Study Session and staff would examine the
possibility of scheduling the Citizen Information Academy later in odd years.
There being no further business, Mayor Jirsa adjourned the meeting at 6:22 p.m.
Kimberly Disney, Recording Secretary DRAFT8
8
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment
June 4, 2019, 9:00 a.m.
Board Room, Estes Park Town Hall
Board: Chair Jeff Moreau, Vice-Chair John Lynch, Rex Poggenpohl, Wayne Newsom,
Attending: Members Moreau, Lynch, Newsom, Poggenpohl,
Also Attending: Director Hunt, Planner II Hathaway, Recording Secretary Karin Swanlund
Town Attorney Greg White, Larimer County Deputy Attorney Bill Ressue.
Absent: none
Chair Moreau called the meeting to order at 9:00 a.m. He introduced the Board Members and
staff. There were 12 people in attendance.
1. AGENDA APPROVAL
Poggenpohl requested a 10-minute discussion on Bylaws be added to the end of the meeting.
It was moved and seconded (Poggenpohl/Newsom) to approve the agenda.
The motion passed 4-0.
2. CONSENT AGENDA
Approval of minutes dated February 5, 2019, March 5, 2019 and May 15, 2019
It was moved and seconded (Poggenpohl/Lynch) to approve the Consent Agenda.
The motion passed 4-0.
3. VARIANCE REQUEST, 421 Ridge View Lane, Karen & Mark Guenther, owners
Planner Hathaway reviewed the variance request. The applicant applied for approval of permitting
a 5-foot front setback in lieu of the 15-foot front setback as required by the E (Estate) residential
zoning district. The request is to accommodate access to the main structure from the garage and
parking area, connect the lower and upper walkway and add decking to square the current deck
limits. Staff recommended approval of the Variance Request.
Board Discussion/Questions:
Poggenpohl and Newsom agreed with the need for the variance request.
Applicant Discussion:
Owner Mark Guenther stated that the purpose of the request is to remove the walkway to the
garage from the right-of-way.
It was moved and seconded (Poggenpohl/Lynch) to approve the requested setback. The
motion passed 4-0.
4. Mountain Coaster Appeal discussion:
Attorney Ressue reviewed the subject matter, stating that both Town and County planning
departments and attorneys share in issues dealing with county property. Two weeks ago, an
executive session was held to discuss legal advice regarding the Mountain Coaster. At that
9
9
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 2
June 4, 2019
meeting, the board decided to have a public hearing on filing an appeal to the findings of the
Larimer County District Court.
Public Comment:
Rebecca Urquart, 1955 Homestead Lane, objected to the executive session held two weeks ago
and suggested this Board disregard whatever was said at the executive session as it should have
been a public meeting. The Board of Adjustment (BOA) is in a quasi-judicial stance and receiving
ex-parte communication from the county attorney was wrong. The Use Classification case is on
appeal and could possibly come back to the BOA. She respectfully requested the Board
disregard the district court case until the appellate court makes a decision.
John Nicholas, 3400 Woodcock, Berthoud, noted that the use classification was decided by
another court. There are problematic interpretations with these issues. This decision threatens
the ability to have a joint planning area.
Dick Speilman, 584 Audobon Street, offered to disperse the memo issued by Frank Lancaster,
outlining the Town/County separation for the Board members to read.
Board Discussion:
Poggenpohl summarized that the BOA is faced with two choices: appeal the decisions or act on
them. He is in favor of not appealing the court decision on use classification.
Ressue explained the decision points made on the mountain coaster project. The Estes Valley
Development Code says one thing, state law says something different. Both Attorneys are
recommending the BOA appeal the decision to the Court of Appeals can decide if the EVDC is
valid. The second issue is concerning the Location and Extent (L & E) review. The Judge ruled
that there should have been an L & E review, the attorneys feel L & E only applies to public
projects. The appeal has nothing do with the merits of the Mountain Coaster, but the validity of
the EVDC and the decisions the court made concerning that.
Considerable discussion was had on processes, following the Code, and the IGA. The BOA does
not determine the legality and needs to decide whether or not to appeal the court's order.
Newsom and Moreau stated they did what was appropriate based on the written Code at the time
of the application.
It was moved and seconded (Newsom/Lynch) to appeal both counts of the decision by the
District Court. The motion passed 3-1 with Poggenpohl voting against.
5. It was moved and seconded (Poggenpohl/Moreau) to table the Bylaws discussion to a future
meeting. The motion passed 4-0.
6. REPORTS:
A) Current IGA expires in February 2020. The memo from the Town Administrator will be sent to
the Board Members. The decision is a joint decision, but either body can choose not to
continue without the consent of the other.
B) Code Compliance has been moved to the Police Department. Linda Hardin has been
promoted to Planner I. Vacation Homes are now being handled by the Town Clerk.
C) Founding member of the BOA, Wayne Newsom, turns 90 this month!
There being no other business before the Board, the meeting adjourned at 10:00 a.m.
10
10
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 3
June 4, 2019
___________________________________
Jeff Moreau, Chair
___________________________________
Karin Swanlund, Recording Secretary
11
11
12
12
PUBLIC WORKS Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: Kevin McEachern, Public Works Operations Manager
Greg Muhonen, PE, Public Works Director
Date: October 8, 2019
RE: Resolution #30-19 Acceptance of the Town of Wellington in the
Intergovernmental Agreement for Solid Waste Programming and
Infrastructure Improvements
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Public Works staff seeks approval of a Resolution from the Town Board to add the
Town of Wellington to the Intergovernmental Agreement (IGA) for Solid Waste
Programming and Infrastructure Improvements.
Present Situation:
On March 19, 2019, the Town of Estes Park, Colorado, Larimer County, Colorado, the
City of Fort Collins, Colorado, and the City of Loveland, Colorado, joined together for an
Intergovernmental Agreement for Solid Waste Programing and Infrastructure
Improvements. This helps with the appropriate management of solid waste materials,
human health and safety, and the environmental and economic wellbeing of the region.
Proposal:
The IGA states (page 11, X. MISCELLANIOUS, 10.5): “Addition of New Parties to the
Agreement. Additional governmental entities in Larimer County may be added to this
agreement with the consent of all Parties”. Consent is needed from the Town Board for
the addition of the Town of Wellington, Colorado to the IGA.
Advantages:
Addition of another municipality to the IGA improves the interagency coordination
and program consistency.
13
13
Outreach and educational efforts pertaining to solid waste programming and
infrastructure planning can reach a broader segment of the County population.
Inclusion of another stakeholder agency expands the regional efforts for recycling
and solid waste resource management.
Disadvantages:
Achieving consensus in decision-making can take longer when more parties are
involved.
Action Recommended:
Staff recommends Town Board approve this resolution.
Finance/Resource Impact:
There will be no financial impact.
Level of Public Interest
Moderate
Sample Motion:
I move for the approval/denial of Resolution #30-19.
Attachments:
Resolution 30-19
Link-IGA for Solid Waste Programing and Infrastructure
Improvements
14
14
RESOLUTION 30-19
A RESOLUTION CONSENTING TO THE ADDITION OF THE TOWN OF
WELLINGTON TO THE INTERGOVERNMENTAL AGREEMENT FOR SOLID WASTE
PROGRAMMING AND INFRASTRUCTURE IMPROVEMENTS
WHEREAS, the Town of Estes Park entered into an Intergovernmental Agreement
for Solid Waste Programming and Infrastructure Improvements (“Agreement”) on March
19, 2019 with Larimer County, the City of Fort Collins, and the City of Loveland; and
WHEREAS, the Town of Wellington has requested to join the Agreement; and
WHEREAS, the Town has no objection to the request.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
Under section 10.5 of the Agreement, the Town consents to the addition of the
Town of Wellington to the Agreement.
DATED this day of , 2019.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
15
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
16
38
PUBLIC WORKS Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: David Hook, Engineering Manager
Date: October 8, 2019
RE: Resolution 31-19 Support of the 2020 Colorado Parks and Wildlife
Recreational Trail Program Grant Application for Fall River Trail Project
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Public Works staff seeks approval of a Resolution from the Town Board to support a
Colorado Parks and Wildlife (CPW) Recreational Trail Program (RTP) grant application
for the construction of a segment of the Fall River Trail.
Present Situation:
Public Works has completed a design to extend Fall River Trail along US34 from its
current end point at Sleepy Hollow Court, along Fish Hatchery Road to the Aspenglen
campground in Rocky Mountain National Park (RMNP). CPW has announced grant
funding for 2020 which focuses on non-motorized trails.
The Town was awarded a 2018 CPW RTP grant for another segment of the trail. The
2020 CPW RTP application was due October, 1, 2019 and was submitted without this
resolution attached (as allowed by grant application rules).
Proposal:
The CPW RTP application requires a Town Board resolution to ensure that as the
governing body you are aware of and support this application, and recognize the
financial and legal obligations of this grant if awarded.
Advantages:
The 2016 Estes Valley Trails Master Plan identified the Fall River Trail as the Estes
Valley community’s top trail priority based on a matrix of factors.
This project is construction-ready with design and engineering, and construction cost
estimate complete.
17
39
This trail extension will provide added safety to residents and visitors that walk and
bike this heavily-trafficked stretch of Fall River Road (US34).
This will be a vital link between trails in downtown Estes Park and the trail network of
RMNP.
This work delivers progress on the future trail connection to the Federal Transit
Administration-funded Transit Hub and Parking Structure at the Visitors Center.
The trail will help alleviate traffic congestion by providing an option for non-motorized
travel between RMNP and the activities and businesses of downtown Estes Park.
Disadvantages:
Construction activity will be disruptive for local residents, businesses, and motorists;
however, traffic control will be provided and carefully managed.
Cost share requirement is 30 percent of the grant award; however, this cost share
has been budgeted in recent years for successful grants with 1A Trail funds and
Open Space Funds.
Maximum grant amount is $250,000, so for a $7 million project this grant supports
only a small segment of trail construction; however, staff continues to pursue funding
opportunities.
Action Recommended:
Staff recommends Town Board approve this resolution.
Finance/Resource Impact:
The 2020 CPW RTP grant has a $250,000 maximum request limit, and a 30% local
match will be required ($75,000).
Staff proposes to support the grant with local funds in 2021 from the 1A Trails Fund and
Larimer County Open Space Fund in the amount of $75,000 to meet the required 30
percent cost share. A local overmatch of $145,936 will also be budgeted through the 1A
Trails Fund and Open Space Fund to complete this trail segment.
Level of Public Interest
Moderate.
Sample Motion:
I move for the approval/denial of Resolution 31-19.
Attachments:
Resolution 31-19
Proposed segment map
18
40
RESOLUTION 31-19
SUPPORTING COLORADO PARKS AND WILDLIFE GRANT APPLICATIONS FOR FALL
RIVER TRAIL PROJECT
WHEREAS, the Town of Estes Park supports the grant application administered
by Colorado Parks and Wildlife for the Fall River Trail Extension Project, and if awarded,
the Town of Estes Park will support construction and maintenance of the project; and
WHEREAS, the Town of Estes Park is requesting $250,000 from the
Recreational Trail Program grant to extend the Fall River Trail from a current terminus at
approximately the intersection of Fish Hatchery Road and David Drive east along Fish
Hatchery Road for a 375-foot segment.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
1. The Estes Park Town Board support this grant application and if awarded,
supports the completion of the project and long-term maintenance; and
2. This project will be under the control of the Town of Estes Park for at least 25
years.
3. This resolution to be in full force and effect from and after its passage and
approval.
DATED this day of , 2019.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
19
41
Fall River
Fall River
F
A
L
L
RI
V
E
R
RD
ZIOLACT
H
O
MESTEADLN
SLEEPYHOLLOW R D
FALLRIVERRD
FALLRIVE
RCTFISH H AT C H ERY RD
DAVIDDR
FALLRIVERDR£¤34
This draft document was prepared for internal use by theTown of Estes Park, CO. The Town makes no claim as tothe accuracy or completeness of the data contained hereon.
Due to security concerns, The Town requests that youdo not post this document on the internet or otherwisemake it available to persons unknown to you.
0 500 1,000Feet
1 in = 1,000 ft±Town of Estes Park Fall River Trail
Project Site Map
ROCKY MOUNTAINNATIONAL PARK
Public Works Department
TOWN OFESTES PARKFall River Trail
Trail Segment
Proposed CPW Regional Trails Program (RTP)
2019 Trail Alignment (CPW-LWCF Grant)
2020 Trail Alignment (CPW-RTP Grant)
Trail Alignment (Proposed FLAP Grant)
Rocky Mtn National Park Boundary
Streams
Lakes
20
42
PUBLIC WORKS Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: Brian Berg, Parks Division Supervisor
Greg Muhonen, PE, Public Works Director
Date: October 8, 2019
RE: Resolution 32-19 Grant Application for the Big Thompson River
Recreational Area Picnic Shelter
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER
QUASI-JUDICIAL YES NO
Objective:
Public Works staff seeks approval of a Resolution from the Town Board to support a
Great Outdoors Colorado (GOCO) grant application and enter into a grant agreement
for a new picnic shelter located west of the Estes Park Visitor Center parking structure.
Present Situation:
The current picnic shelter located on this site is in disrepair and is inadequate to meet
the increased usage of this area stimulated by the new parking structure and regional
population growth. The Estes Park Visitors Center area is a meeting and gathering
place with shuttle services, access to the Lake Estes Trail and the downtown Riverwalk
Trail used by locals and visitors alike for recreation including picnicking, fishing, cycling
and hiking. This is the only roofed picnic area that protects against both sun and rain in
the area. Replacement is recommended in lieu of demolition.
Proposal:
If awarded, this project will provide residents and guests with a new picnic shelter
located on the Big Thompson River, which will accommodate 2 or 3 picnic tables in a
beautifully landscaped area that initiates recreational activities including fishing on the
Big Thompson River, cycling the miles of multimodal trails within the Estes Valley, and
walking or hiking in historic downtown Estes Park and beyond. Additional seating is also
planned outside the picnic shelter for larger group gatherings such as school functions,
youth groups, civic groups, hiking clubs etc.
The Parks Division plans to install irrigation to support new landscape and to minimize
staff maintenance effort.
21
43
Advantages:
Provide a picnic shelter that will accommodate more residents and guests by
increasing the seating capacity.
Improve the user experience with an updated shelter that protects against the
weather.
Provide a convenient picnic experience opportunity for residents and guests.
Enhance the Estes Park Visitors Center area as a meeting and gathering place for
people who are accessing the Town and Rocky Mountain National Park shuttles,
Lake Estes Trail, downtown Riverwalk Trail and other areas.
Improve the experience of being next to the river and for wildlife viewing and fishing.
Continue improvements of the Estes Park Visitors Center campus. Recent
examples include parking, Veterans Monument, beautification features of flowers
and planters, electric vehicle car chargers, interactive musical instruments, etc.
Disadvantages:
This project is not easily accessible to existing residential neighborhoods, rather it is
a place frequented by people desiring to park in the parking structure and walk to
work or visit the downtown area.
If awarded there will be a cash match requirement; however, this will only be $6,000
and the Town has committed to support this cost share.
There will be additional landscape maintenance; however, it is anticipated that this
will decrease as plants become mature and established.
Action Recommended:
Staff recommends the Town Board of Trustees approve this GOCO mini-grant
application, the accompanying Resolution to meet the application due-date of October
24, 2019, and authorize the Mayor to sign the grant agreement if awarded.
Finance/Resource Impact:
There is a 25 percent local match requirement. Ten percent must be cash and is
$6,000.00 on this $60,000.00 project. Additional, we proposed to provide:
$4,005.00 for tables (acct # 101-5200-452.25-03)
$1,995.00 for irrigation supplies (acct # 101-5200-452.26-10).
Additionally, the Parks Division staff will perform work on this project that will be
included as in-kind to meet the 15 percent or about $9,000.00. This will include
demolition, irrigation installation and landscape installation and maintenance.
Level of Public Interest
Moderate.
Sample Motion:
I move for the approval/ denial of Resolution #32-19
Attachments:
Board Resolution 32-19
Photos and design
22
44
RESOLUTION 32-19
SUPPORTING THE APPLICATION AND GRANT AGREEMENT, IF AWARDED, FOR
A MINI- GRANT LOCAL PARKS AND RECREATION FROM THE STATE BOARD OF
THE GREAT OUTDOORS COLORADO TRUST FUND FOR THE REPLACEMENT OF
THE BIG THOMPSON RIVER RECREATIONAL AREA PICNIC SHELTER
WHEREAS, the Town of Estes Park supports the Great Outdoors Colorado
grant application for the Big Thompson River Recreational Area Picnic Shelter located
west of the Estes Park Visitor Center parking structure; and
WHEREAS, if this grant is awarded, the Town of Estes Park supports the
completion of this project.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
1. If awarded, the Board of Trustees will authorize the expenditure of funds
necessary to meet the terms and obligations of the Great Outdoors
Colorado grant.
2. The project site for the Big Thompson River Recreational Area Picnic
Shelter is owned by the Town of Estes Park and will remain a Town-owned
facility for at least 25 years.
3. The Town of Estes Park Board of Trustees recognizes that as the recipient
of a Great Outdoors Colorado local government grant the project site will
provide public access.
4. The Town of Estes Park Board of Trustees will ensure the maintenance of
the Big Thompson River Recreational Area Picnic Shelter located west of
the parking structure at the Estes Park Visitors Center in a high-quality
condition and to appropriate funds for maintenance in the annual budget.
5. If awarded, the Town of Estes Park Board of Trustees will authorize the
Mayor to sign the grant agreement with Great Outdoors Colorado.
6. All the Town’s financial obligations under any grant awarded are contingent
upon appropriation, budgeting, and availability of specific funds to discharge
those obligations. Nothing in this resolution or any grant awarded
constitutes a debt, a direct or indirect multiple fiscal year financial obligation,
a pledge of the Town’s credit, or a payment guarantee by the Town. The
Town Administrator or designee is authorized to execute all documents
necessary to submit said grant application.
7.This resolution to be in full force and effect from and after its approval.
23
45
DATED this day of , 2019.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
24
46
25
47
26
48
27
49
28
50
PUBLIC WORKS Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: Jon Landkamer, Facilities Manager
Greg Muhonen, Public Works Director
Date: October 8, 2019
RE: Contract for Conference Center Porte Cochere Repair with
Saunders/Heath Construction, LLC for $99,552.00, Budgeted (with
reclassification)
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Public Works staff seeks Town Board approval of the construction contract with
Saunders/Heath Construction, LLC for the repairs to the Conference Center.
Present Situation: The wood columns that hold up the porte cochere on the
Conference Center have begun to rot and have settled down at least nine inches on the
worst column. The current operational agreement with Delaware North (DNC) for the
Conference Center expires in the middle of November and a new agreement is in the
works. The new proposed agreement with DNC indicates that we have agreed to repair
these columns prior to the end of 2020.
Proposal:
Repair the porte cochere by lifting the existing structure, removing all four columns, and
replacing them with the new system. Utilize the savings on other 2019 capital projects to
fund this repair, and get it completed over this fall and early winter, prior to heavy
snowfall and wind, and avoiding catastrophic failure of this structure.
Advantages:
Restore the aesthetic and structural condition on the front of the Conference
Center
Stabilize, and make safe, the porte cochere for future use
Honor our new agreement with Delaware North
29
51
Disadvantages:
Defers other capital projects that could be funded with these savings
Action Recommended:
Staff recommends approval of the attached construction contract in the amount of
$99,552.00, and authorizing PW Facilities staff to spend up to a total of $120,000.00 if
needed to address unanticipated conditions encountered during construction.
Finance/Resource Impact:
This project will be funded with savings from other Facilities capital projects reclassified
into account number 101-1700-417.32-22. The budget impact is minimal.
Level of Public Interest
Low public interest.
Sample Motion:
I move for the approval/denial of the Construction Contract with Saunders/Heath
Construction in the amount of $99,552.00, and authorization of PW Facilities staff to
spend up to $120,000 if needed for construction contingencies.
Attachments:
Link-Construction Contract
Link-General Conditions
30
52
Agreement for Construction Contract--Page 1 of 4
TOWN OF ESTES PARK, COLORADO
CONSTRUCTION CONTRACT
Conference Center Porte Cochere Repair
BID #PW-JL-016
THIS CONTRACT is made at the Town of Estes Park, Colorado, by and between the Town of Estes Park,
Colorado (Town), a municipal corporation, and Saunders Heath (Contractor), a Colorado limited liability
company, whose address is; 1212 Riverside Avenue, Suite 130, Fort Collins, CO 80524.
In consideration of these mutual covenants and conditions, the Town and Contractor agree as follows:
SCOPE OF WORK. The Contractor shall execute the entire Work described in the Contract. This includes,
but is not limited to:
Demolition of existing columns in the area of the Conference Center Porte Cochere, as detailed in
the Construction Document (CD)
Construction of the new columns, as detailed in the CD
Work must be compliant with building code requirements as specified in the CD
Finish new columns, and all exterior wood, on the front of the Conference Center to match
Removal and proper disposal of all trash and debris associated with the project
Electrical available on site
Contractor will obtain all required permits
Building will be closed during construction and construction scheduling will need to be
communicated with staff
CONTRACT DOCUMENTS. The Contract incorporates the following Contract Documents. In resolving
inconsistencies among two or more of the Contract Documents, precedence will be given in the same order
as enumerated.
LIST OF CONTRACT DOCUMENTS.
The Contract Documents, except for Modifications issued after execution of this Agreement, are:
1. Change Orders;
2. Construction Contract;
3. The following addenda, if any:
NONE
4. The following Special Conditions of the Contract:
NONE
5. General Conditions;
6. The following Technical Specifications:
NONE
7. The following Drawings:
Number: 1 Title: Estes Park Conference Center Porte Cochere Date: 8/16/2018
8. Notice to Proceed;
9. Notice of Award;
10. Invitation to Bid;
11. Bid Bond;
12. Proposal;
13. Information and Instructions to Bidders;
53
Agreement for Construction Contract--Page 2 of 4
14. Performance Bond and Payment Bond;
15. Insurance Certificates; and
16. Work Schedule.
CONTRACT PRICE. The Town shall pay the Contractor for performing the Work and the completion of the
Project according to the Contract, subject to change orders as approved in writing by the Town, under the
guidelines in the General Conditions. The Town will pay the base sum of $99,552.00 DOLLARS (Contract
Price), to the Contractor, subject to full and satisfactory performance of the terms and conditions of the
Contract. The Town has appropriated sufficient money for this work.
COMPLETION OF WORK. The Contractor must begin work covered by the Contract within 30 work days,
and must complete work: by January 31, 2020.
LIQUIDATED DAMAGES. If the Contractor fails to substantially complete the Work within the time period
described above, or within such other construction time if modified by a change order, the Town may
permit the Contractor to proceed, and in such case, may deduct the sum of $100 for each calendar day that
the Work shall remain uncompleted from monies due or that may become due the Contractor. This sum is
not a penalty but is the cost of field and office engineering, inspecting, interest on financing and liquidated
damages.
The parties agree that, under all of the circumstances, the daily basis and the amount set for liquidated
damages is a reasonable and equitable estimate of all the Town's actual damages for delay. The Town
expends additional personnel effort in administrating the Contract or portions of it that are not completed
on time, and such efforts and the costs thereof are impossible to accurately compute. In addition, some, if
not all, citizens of Estes Park incur personal inconvenience and lose confidence in their government as a
result of public projects or parts of them not being completed on time, and the impact and damages,
certainly serious in monetary as well as other terms are impossible to measure.
SERVICE OF NOTICES. Notices to the Town are given if sent by registered or certified mail, postage
prepaid, to the following address:
TOWN OF ESTES PARK
Public Works Facilities Division
170 MacGregor Avenue
Estes Park, CO 80517
INSURANCE PROVISIONS. The Contractor must not begin any work until the Contractor obtains, at the
Contractor's own expense, all required insurance as specified in the General Conditions. Such insurance
must have the approval of the Town of Estes Park as to limits, form and amount.
RESPONSIBILITY FOR DAMAGE CLAIMS. The Contractor shall indemnify, save harmless, and defend
the Town, its officers and employees, from and in all suits, actions or claims of any character brought
because of: any injuries or damage received or sustained by any person, persons or property because of
operations for the Town under the Contract; the Contractor's failure to comply with the provisions of the
Contract; the Contractor's neglect of materials while constructing the Work; because of any act or omission,
neglect or misconduct of the Contractor; because of any claims or amounts recovered from any
infringements of patent, trademark, or copyright, unless the design, device, materials or process involved
are specifically required by Contract; from any claims or amount arising or recovered under the "Workers'
Compensation Act," by reason of the Contractor's failure to comply with the act; pollution or environmental
liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. The Town
may retain so much of the money due the Contractor under the Contract, as the Town considers necessary
for such purpose, for the Town's use. If no money is due, the Contractor's Surety may be held until such
suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be
withheld when the Contractor produces satisfactory evidence that the Contractor and the Town are
adequately protected by public liability and property damage insurance.
The Contractor also agrees to pay the Town all expenses incurred to enforce this "Responsibility for
54
Agreement for Construction Contract--Page 3 of 4
Damage Claim" agreement and if the Contractor's insurer fails to provide or pay for the defense of the Town
of Estes Park, its officers and employees, as additional insureds, the Contractor agrees to pay for the cost
of that defense.
Nothing in the INSURANCE PROVISIONS of the General Conditions shall limit the Contractor's
responsibility for payment of claims, liabilities, damages, fines, penalties, and costs resulting from its
performance or nonperformance under the Contract.
STATUS OF CONTRACTOR. The Contractor is performing all work under the Contract as an independent
contractor and not as an agent or employee of the Town. No employee or official of the Town will supervise
the Contractor nor will the Contractor exercise supervision over any employee or official of the Town. The
Contractor shall not represent that it is an employee or agent of the Town in any capacity. The Contractor
and its employees are not entitled to Town Workers' Compensation benefits and are obligated to
pay federal and state income tax on money earned pursuant to the Contract. This is not an exclusive
contract.
THIRD PARTY BENEFICIARIES. None of the terms or conditions in the Contract shall give or allow any
claim, benefit, or right of action by any third person not a party to the Contract. Any person except the
Town or the Contractor receiving services or benefits under the Contract shall be only an incidental
beneficiary.
INTEGRATION. The Contract is an integration of the entire understanding of the parties with respect to
the matters set forth in it, and supersedes prior negotiations, written or oral representations and
agreements.
DEFINITIONS. The Definitions in the General Conditions apply to the entire Contract unless modified within
a Contract Document.
EXECUTED this _____ day of _____________, 2019.
TOWN OF ESTES PARK
Town Representative
Printed Name: Travis Machalek
Position: Town Administrator
55
Agreement for Construction Contract--Page 4 of 4
CONTRACTOR
By:
Title:
State of )
) ss:
County of )
The foregoing instrument was acknowledged before me by ,
(Name of party signing)
as of ,
(Title of party signing) (Name of corporation)
a corporation, on behalf of the corporation, this
(State of incorporation)
day of , 2019.
Witness my hand and official Seal.
My Commission expires .
Notary Public
56
1
TOWN OF ESTES PARK
CONSTRUCTION CONTRACT GENERAL CONDITIONS
SCOPE: Since the General Conditions are general, some conditions may not apply to a particular
Project.
Article 1--DEFINITIONS AND ABBREVIATIONS
1.1 Definitions: Whenever used in the Bidding Documents and Contract Documents, the following
terms shall have the following meanings, applicable to both the singular and plural:
1.1.1 Addenda: Written changes to the Bidding Documents issued at least two days before the Opening
of Bids which modify or interpret the Contract or changes the date set for the Opening of Bids.
1.1.2 Alternate Bid: An Alternate Bid is an amount stated in the Bid added to or deducted from the base
amount of the Bid when the Town accepts a corresponding change in project scope, materials or method
of construction described in the Contract.
1.1.3 Bid: The proposal the Bidder submits on the prescribed Bid Forms stating the prices for the Work
to be performed.
1.1.4 Bid Forms: The Bid Proposal, Bid Bond, Bid Schedule, Bidder's Qualifications and Data, Bidder's
Officials Data, Non-Collusion Affidavit of Prime Bidder, and Subcontractors and Related Data.
1.1.5 Bidder: The person, partnership, or corporation submitting a Proposal for the performance of the
Work covered by the Contract.
1.1.6 Bidding Documents: The Invitation to Bid, Bid Forms, Information and Instructions to Bidders,
Specifications, Drawings, Sample Forms, Special and General Conditions and Addenda (if any).
1.1.7 Bonds: Bid Bonds, Performance, and Labor and Material Payment Bonds or other instruments of
security, furnished by the Contractor and its Surety according to the Contract.
1.1.8 Calendar Days: Includes all days in a month including weekends and holidays.
1.1.9 Change Order: A written modification of the Contract, issued after award to the Contractor,
authorizing an addition, deletion or revision in the Work within the general scope of the Contract or
authorizing an adjustment in the Contract Price or Contract Time, mutually agreed upon between the Town
and the Contractor.
1.1.10 Town: The Town of Estes Park, in the State of Colorado, acting by and through its Mayor, Town
Board of Trustees, Town Administrator, or other authorized representative.
1.1.11 Completion Date: The date the Contract specifies the Work is to be completed.
1.1.12 Contract: The Construction Contract consisting of the Agreement for a Construction Contract and
the incorporated Contract Documents.
1.1.13 Contract Coordinator: The authorized representative of the Town designated to act for the Town
in processing the Award of Contracts, maintaining centralized official Contract documentation, providing
administrative liaison/coordination, legal liaison/coordination via Town Attorney, and processing of Contract
Payment authorizations as approved by the Project Manager. The Project Manager may also be the
designated Contract Coordinator.
57
2
1.1.14 Contract Documents: All the documents expressly incorporated into the Contract by the
Agreement for Construction Contract, including but not limited to Addenda, Bid Forms, Change Orders,
Town Project Final Acceptance, Drawings, General Conditions, Information and Instruction to Bidders,
Insurance Certificates, Invitation to Bid, Notice of Award, Notice of Construction Acceptance, Notice to
Proceed, Notice of Substantial Completion, Performance and Labor and Material Payment Bonds, Special
Conditions, Supplemental Drawings and Schedules, and Technical Specifications.
1.1.15 Contract Price: The total monies payable to the Contractor under the terms and conditions of the
Contract.
1.1.16 Contract Time: The number of working days stated in the Contract for the completion of the
Project.
1.1.17 Contractor: The person, company, firm or corporation contracting with the Town to construct,
erect, alter, install or repair any work or construction project.
1.1.18 Drawings: The part of the Contract prepared or approved by the Project Manager showing the
characteristics and scope of the Work to be performed.
1.1.19 Date of Contract: The execution date in the Agreement for a Construction Contract.
1.1.20 Day: A calendar day of twenty-four hours each.
1.1.21 Field Order: A written order directing a change in the Project issued by the Project Manager to
the Contractor during construction.
1.1.22 Inspector: The Town's authorized representative assigned to make detailed inspection of the Work
performed by the Contractor.
1.1.23 Notice of Award: The written notice of the acceptance of the Bid from the Town to the successful
Bidder.
1.1.24 Notice of Construction Acceptance: The written acknowledgment that construction is complete
which starts the warranty period.
1.1.25 Notice of Final Acceptance: The written acceptance of Work performed under the Contract,
following satisfactory conclusion of the warranty period.
1.1.26 Notice to Proceed: The written notice by the Town to the Contractor authorizing it to proceed with
the Work which establishes the Contract commencement and Contract Coordinator.
1.1.27 Notice of Substantial Completion: The written notice of the date, as certified by the Project
Manager, when the Project or a specified part is sufficiently completed, according to the Contract, so the
Project or specified part can be used for the intended purposes.
1.1.28 Owner: The Town; see 1.1.9.
1.1.29 Project: The undertaking to be performed as provided in the Contract.
1.1.30 Project Manager: The authorized representative of the Town, known as the Project Manager,
assigned to the Project to ensure that all Work is performed according to the terms and conditions of the
Contract. Also see Article 10, "Project Manager's Responsibilities."
1.1.31 Shop Drawings: All Drawings, diagrams, illustrations, brochures, schedules, and other data
prepared by the Contractor, a Subcontractor, manufacturer, Supplier or distributor which illustrate how
specific portions of the Work will be fabricated or installed.
58
3
1.1.32 Special Conditions: Additions to the General Conditions containing instructions and conditions
peculiar to an individual Project.
1.1.33 Specifications: A part of the Contract Documents consisting of written technical description of
materials, equipment, construction systems, standards, and workmanship.
1.1.34 Subcontractor: Any person, company, firm or corporation, having a subcontract with the
Contractor to furnish and perform on-site labor, with or without furnishing materials for the project.
1.1.35 Supplier: Any person or organization who supplies materials or equipment for the Work, including
that fabricated to a special design, but who does not perform labor at the site.
1.1.36 Surety: The entity which is bound with and for the Contractor for the Performance of the Work and
for the Labor and Material Bond.
1.1.37 Unit Price: An amount stated in the Bid as a price per unit of measurement for materials or services
as described in the Contract.
1.1.38 Work: The construction and services required by the Contract, whether completed or partially
completed, including all other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may be the whole or a part of the Project.
1.1.39 Work Days: Includes all days in the month the Contractor is permitted to work; excludes weekends
and holidays.
1.2 Abbreviations: When the following abbreviations appear in the documents, they are defined as
follows:
AASHTO American Association of State Highway and Transportation Officials
ACI American Concrete Institute
ADA Americans with Disabilities Act
AISC American Institute of Steel Construction
ANSI American National Standards Institute
ASA American Standards Association
ASCE American Society of Civil Engineers
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
AWS American Welding Society
AWWA American Water Works Association
CDOT Colorado Department of Transportation
EPA Environmental Protection Agency
MUTCD Manual on Uniform Traffic Control Devices
59
4
OSHA Occupational Safety & Health Administration
WW-P Federal Specifications Prefix
Article 2--PRELIMINARY MATTERS
2.1 Notice to Proceed
2.1.1 Following the execution of the Contract by the Parties, the Project Manager will give the Contractor
written Notice to Proceed with the Work. The Contractor shall begin and continue the Work regularly and
without interruption (unless otherwise directed in writing by the Project Manager) with the diligence and
efficacy necessary to complete the Work within the time stated in the Contract.
2.2 Contractor's Understanding
2.2.1 The Contractor agrees that, by careful examination, it is satisfied as to the nature and location of
the Work, the conformation of the ground, the character, quality, and quantity of the materials to be
encountered, the character of equipment and facilities needed before beginning and for the Project, the
general and local conditions, and all other matters, which can in any way affect the Work under the Contract.
No oral agreement with any officer, agent or employee of the Town either before or after the execution of
the Contract shall affect or change any of the terms or obligations contained in the Contract.
2.3 Contractor's Warranty
2.3.1 The Contractor warrants that it has the knowledge, ability, experience, and expertise to perform the
Work competently. The Contractor warrants the capacity of the Contractor's construction plant, personnel,
and its ability to complete the Project within the allotted time.
2.4 Contractor's License and Permits
2.4.1 The Contractor will obtain all licenses and permits required to do the Work. Whenever necessary,
the Contractor will have a Building Contractor's License with the Town by the time of Notice of Award. It
will have all permits required by the Town, as well as those required by County, State and Federal agencies.
Subcontractors shall also have a Town of Estes Park Building Contractor's License and the proper permits.
2.5 Schedules, Reports, and Records
2.5.1 Before beginning construction, the Contractor shall submit to the Project Manager a Construction
Progress Schedule, on a form approved by the Project Manager, showing all Work the Contractor and all
Subcontractors will perform. The Project Manager may require the Contractor to substitute a Critical Path
Method schedule (CPM), or bar graph type schedule. The Special Conditions will state when a CPM
network schedule is required.
2.5.2 The schedule shall be in enough detail for the Project Manager to readily determine the Work to be
performed each day. When requested by the Project Manager, the Contractor shall update the schedule.
2.5.3 Before beginning construction, the Contractor shall give the Project Manager the dates it expects
to submit Shop Drawings, manufacturers' details, catalog cuts or other required special detail Drawings and
also the dates of beginning manufacture, testing, delivery and installation of special equipment and
materials.
2.6 Contractor's Address
2.6.1 The address in the Bid Proposal is designated as the place to which all communications to the
Contractor will be delivered or mailed. The delivery at the listed address, in person or by certified mail, of
60
5
any notice, letter or other communication to the Contractor, is adequate service upon the Contractor, and
the date of the service is the date of delivery.
2.7 Notification of Utility Owners
2.7.1 The Contractor shall cooperate with Utility Owners to mitigate damage whenever the Contractor's
work affects their utilities.
2.7.2 The Contractor shall not excavate without first notifying the owners, operators or association of
owners and operators having underground facilities in the area of such excavation. If the Contractor is
digging deep or even just a few inches, the Contractor must contact Colorado 811 to have underground
utilities marked, by calling 811. iDig811 is designed for residential and professional excavators to easily
and quickly submit a utility request online.
2.7.3 Contractor shall give notice of the commencement, extent, and duration of the excavation work at
least two business days before beginning Work.
2.7.4 If the Project affects fences, landscaping, mailboxes, driveways and other privately-owned
improvements, the Contractor shall notify the affected property owners or occupants in writing at least two
business days before beginning Work. The Contractor shall cooperate with the owners or occupants to
reduce inconvenience where reasonably possible.
2.8 Department of Revenue Forms
2.8.1 It is the responsibility of the Contractor to apply for a Colorado State Sales and Use Tax Exemption
Certificate from the State Dept. of Revenue and to use it when purchasing materials or supplies in
connection with the Project.
2.8.2 The Town's Tax Exemption Numbers are to be used only when obtaining the Contractor's own Tax
Exemption Certificate for each specific Town project:
a. Federal Tax Exemption Number: 84-6000661
b. State of Colorado Tax Exemption Number: 98-00492
Article 3--DRAWINGS AND SPECIFICATIONS
3.1 Intent of Drawings and Specifications
3.1.1 In the Drawings and Specifications, the Town intends that the Contractor furnish all
superintendence, labor, materials, tools, equipment, supplies, machinery and transportation necessary for
the proper execution of the Work unless specifically noted otherwise. The Contractor shall do all the Work
shown on the Drawings and described in the Specifications and all incidental Work reasonably necessary
to complete the Project in a substantial and acceptable manner, and to complete fully the Work, ready for
use, by the Town.
3.1.2 The Contractor shall complete all Work according to the Specifications and Plans, and in
compliance with applicable laws of Colorado and ordinances of the Town.
3.1.3 In interpreting the Contract, words describing materials or work having a well-known technical or
trade meaning, unless otherwise specifically defined, will be construed according to well-known meanings
as recognized by engineers, architects, and the trades.
3.1.4 When the Contract refers to a provision of the General Conditions or another Contract Document,
the Contract means the provision as amended or supplemented by other provisions of the Contract.
61
6
3.1.5 When the Specifications state the words "as directed," or "as required," or "as permitted," or words
of like meaning, it is understood that the direction, requirement or permission of the Project Manager is
intended. Similarly, the words approved, acceptable or satisfactory shall refer to approval by the Project
Manager.
3.1.6 The Contract Documents are intended to be complementary, and Work called for on any Drawing
and not mentioned in the Specifications, or Work described in the Specifications and not shown on any
Drawing, is included under the Contract as if set forth in both the Specifications and Drawings.
3.2 Copies of Drawings and Specifications Furnished
3.2.1 The Project Manager will furnish to the Contractor, free of charge, four copies of Drawings and
Specifications of the Work. All additional copies will be furnished at reproduction costs.
3.3 Discrepancies in Drawings
3.3.1 Contractor shall immediately report any discrepancies found between the Drawings and
Specifications and site conditions or any errors or omissions in the Drawings or Specifications to the Project
Manager, who shall promptly correct such error or omission in writing. Any affected Work done by the
Contractor after discovery of such discrepancies, errors or omissions and affected by those is done at the
Contractor's risk. In all cases, the Project Manager shall decide the intent of the Drawings and
Specifications. The decision is final.
3.4 Dimensions
3.4.1 Figured dimensions shall govern over scaled dimensions.
3.5 Drawings and Specifications at Job Site
3.5.1 The Contractor shall keep one complete set of all Drawings and Specifications at the job site,
available to the Project Manager or the Manager's representative at all times.
3.6 Shop Drawings
3.6.1 The Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may
be necessary for the prosecution of the Work in the shop and in the field as required by the Drawings,
Specifications or Project Manager's instructions.
3.6.2 The Contractor shall submit for approval electronic copies of all Shop Drawings and descriptive
data as applicable showing all features not fully detailed on the Contract Plans but essential for a completely
coordinated installation.
3.6.3 The Town's approval of Shop Drawings indicates only that the type and kind of equipment, general
method of construction or detailing are satisfactory, but the Contractor may not construe the approval as a
complete check. The Contractor has the responsibility for incorporating into the Work satisfactory materials
and equipment meeting the requirements of the Contract Plans and Specifications, the proper dimensions,
and the detailing of connections.
3.6.4 The review of Shop Drawings is only to check for compliance with the design concept of the Project
and general compliance with the Contract Documents. Approval does not indicate the waiver of any
contract requirement. Changes in the Work are authorized only by separate written Change Order.
62
7
3.7 Record Documents
3.7.1 The Contractor shall keep one record copy of all Addenda, Change Orders, Drawings, Field Orders,
Modifications, and Shop Drawings and Specifications in good order. The Contractor shall record any
changes made during construction on the record copies. The Contractor shall make a set of "Record
Drawings" by marking this set of prints with all changes from the original Drawings as bid, including all
Change Orders, alignment changes, depth changes of underground pipes and utilities, and all other items
that are not the same as originally drawn. The Contractor shall keep the Record Drawings up to date as
the Project progresses. The Project Manager may require, as a condition of the approval of the monthly
progress payment, periodic inspection of the Record Drawings. The Contractor will deliver the Record
Drawings to the Project Manager upon completion of the Project before Final Payment.
3.8 Differing Site Conditions
3.8.1 The Contractor shall promptly, before such conditions are further disturbed, notify the Project
Manager in writing of:
3.8.1.1 Subsurface or latent physical conditions at the job site differing materially from those indicated in
the Contract; or
3.8.1.2 Unknown physical conditions at the job site, of an unusual nature, differing materially from those
ordinarily encountered and generally recognized as inherent in Work of the character provided for in the
Contract.
3.8.2 Upon receipt of written notification from the Contractor of alleged differing site conditions, the
Project Manager shall promptly investigate the conditions and if it finds the conditions materially differ, and
so cause an increase or decrease in the Contractor's cost of or the time required for performance of any
part of the Work under the Contract, an equitable adjustment will be made and the Contract modified in
writing as provided for in Article 11 of these General Conditions.
3.8.3 No claim will be allowed under this Article unless the Contractor has given the written notice
required in Article 3.8.1.
3.8.4 No claim will be allowed under this Article if Final Payment has been made.
3.9 Surveys
3.9.1 The Project Manager has the option to develop and arrange for detail surveys through a separate
contract if deemed desirable or necessary and if specifically noted as such in the Special Conditions,
otherwise the Contractor shall provide all survey required to construct the Project according to the Project
documents. The Contractor assumes full responsibility for construction according to the proposed lines
and grades.
3.9.2 The Contractor shall carefully protect all monuments and property markers from disturbance or
damage.
Article 4--AVAILABILITY OF RIGHT-OF-WAY
4.1 Acquisition of Right-of-Way
4.1.1 Before issuance of Notice to Proceed, the Town shall obtain all land and right-of-way necessary for
carrying out and completion of the Work to be performed pursuant to the Contract, unless otherwise
mutually agreed.
63
8
4.1.2 The Town shall provide to the Contractor information which delineates and describes the lands
owned and rights-of-way acquired, when necessary. The Contractor shall confine its operations within the
areas designated by the Project Manager.
4.2 Access to Right-of-Way
4.2.1 The Town will provide right of access to all places necessary for the performance of the Work.
Nothing contained in the Contract shall give the Contractor exclusive occupancy of the area provided by
the Town. The Town, other Contractors of the Town and utility companies may enter upon or occupy
portions of the land furnished by the Town for any purpose, but without unreasonably interfering with the
completion of the Project. Joint occupancy or use of the territory shall not be the basis of any claim for delay
or damages.
4.3 State Highway Right-of-Way
4.3.1 If any part of the Project is within the right-of-way of a roadway under the jurisdiction of the Colorado
Division of Transportation (CDOT) the Town shall obtain the necessary permits from CDOT to perform such
Work. The Contractor shall conform to all the requirements and restrictions indicated on the permit. The
Contractor shall restore the area to its original condition, including reseeding if necessary, at the completion
of the Project.
4.4 Temporary Storage Facilities
4.4.1 The Contractor may secure at its own expense and without liability to the Town, use of any
additional land that the Contractor may desire for temporary construction activities, and facilities, or storage
of materials.
Article 5--BONDS AND INSURANCE
5.1 Performance Bond and Labor and Material Payment Bond
5.1.1 The Contractor shall, within ten days after receipt of the Notice of Award, and before the
commencement of any operations hereunder execute the Contract and furnish the Town with separate
Performance, and Labor and Material Payment Bonds each in a penal sum equal to the amount of the
Contract Price, conditioned upon the Contractor's performance of all undertakings, covenants, terms,
conditions, and agreements of the Contract, and upon the Contractor's prompt payment to all persons
supplying labor and materials in the prosecution of the Work provided by the Contract. The Contractor and
a corporate Bonding company, licensed to transact such business in the State of Colorado and acceptable
to the Town, shall execute the Bonds. The Contractor bears the expense of these Bonds. If at any time
the Surety on such Bonds becomes irresponsible or loses its right to do business in the State of Colorado,
the Town may require another Surety, which the Contractor shall furnish within ten days after receipt of
written notice to do so. Evidence of authority of an attorney-in-fact acting for the corporate Surety shall be
provided in the form of a certificate as to its power of attorney and to the effect that it is not terminated and
remains in full force and effect on the date of the Bonds. The form of the Bonds is subject to the Town's
approval.
5.2 Insurance
5.2.1 The insurance requirements contained in the Contract shall not limit or redefine the obligations of
the Contractor as provided elsewhere in the Contract.
5.2.2 Only insurance companies with authority to issue policies in Colorado may provide insurance
coverage under the Contract.
64
9
5.3 Insurance Requirements
5.3.1 The Contractor shall purchase and maintain, for the full period of the Contract, including any
warranty period, at the Contractor's or Subcontractor's sole expense, insurance policies providing coverage
as follows:
5.3.1.1 Comprehensive Auto Liability: Comprehensive form, including owned, hired and non-owned
automobiles. The limits of coverage shall be at least $1,000,000.00 per occurrence.
5.3.1.2 Comprehensive General Liability: Commercial general liability insurance covering personal injury,
bodily injury and property damage; Explosion & Collapse; Underground Hazard; Products/Completed
Operations; Contractual Liability; Broad Form Property Damage; and Town's & Contractor's Protective. The
limits shall be at least $1,000,000/$1,000,000 if the Contract Price is $50,000 or less and
$1,000,000/$2,000,000 if the Contract Price is over $50,000. All policies shall be of the occurrence form.
Any deviation from the occurrence form shall be approved by the Town of Estes Park Risk Manager. A
copy of each policy and endorsement must be submitted to the Risk Manager with each certificate of
insurance when a deviation is requested.
5.3.1.3 Workers' Compensation and Employer's Liability: as statutorily required for persons performing
work under the Contract. Any Subcontractor hired by the Contractor shall also carry Workers'
Compensation and Employers' Liability coverage. Employer's liability insurance shall have a minimum
coverage of $1,000,000 per occurrence.
5.3.1.4 Builder's Risk: a Builder's Risk Policy is required in an amount not less than the Contract Price.
The Contractor shall cause its insurance provider to name the Town as an additional insured.
5.3.1.5 Installation Floater: an Installation Floater Policy is required for contracts involving the installation
of unique or customized equipment and for contracts involving installations that in the judgment of the Town
threaten to damage existing structures. The Contractor shall cause its insurance provider to name the
Town as an additional insured.
5.3.2 Additional Insured Clause: The insurance coverage required for the performance of the Contract
must be endorsed to name the Town of Estes Park, Colorado, a municipal corporation, its mayor and
trustees, officers, agents, employees and volunteers, as additional insured with respect to the activities
performed under the Contract.
5.3.3 Primary Insurance Endorsement: Pursuant to an endorsement submitted to and approved by
the Town, all coverage must specifically state the insurance coverage for the Project. In no event shall an
additional endorsement in the form of GL20.09 (1973-01 ed.) or any similar form be submitted or accepted.
5.3.4 Certificate of Insurance: As evidence of the insurance coverage required by the Contract, the
Contractor shall furnish a certificate of insurance to the Contract Coordinator. The certificate will specify
parties who are additional insured. If the Contractor is self-insured under the laws of the State of Colorado,
Contractor shall provide appropriate declarations of coverage.
5.3.5 Continuance of Insurance: For the term of the Contract, which includes any warranty periods,
the Contractor shall not cancel, materially change or fail to renew the insurance coverage, and agrees to
notify the Contract Coordinator of any material reduction or exhaustion of aggregate policy limits. If the
Contractor fails to purchase or maintain the insurance coverage set forth in these General Conditions, the
Town may deem such failure to be breach of this Contract.
65
10
Article 6--INDEMNIFICATION
6.1 Responsibility for Damage Claims: The Contractor shall indemnify, save harmless, and defend
the Town, its officers and employees, from and in all suits, actions or claims of any character brought
because of: any injuries or damage received or sustained by any person, persons or property because of
operations for the Town under the Contract; the Contractor's failure to comply with the provisions of the
Contract; the Contractor's neglect of materials while constructing the Work; because of any act or omission,
neglect or misconduct of the Contractor; because of any claims or amounts recovered from any
infringements of patent, trademark, or copyright, unless the design, device, materials or process involved
are specifically required by Contract; from any claims or amount arising or recovered under the "Workers'
Compensation Act," by reason of the Contractor's failure to comply with the act; pollution or environmental
liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. The Town
may retain so much of the money due the Contractor under the Contract, as the Town considers necessary
for such purpose, for the Town's use. If no money is due, the Contractor's Surety may be held until such
suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be
withheld when the Contractor produces satisfactory evidence that it and the Town are adequately protected
by commercial general liability and property damage insurance.
6.1.1 The Contractor also agrees to pay the Town all expenses incurred to enforce this "Responsibility
for Damage Claims" agreement and if the insurer of the Contractor fails to provide or pay for the defense
of the Town of Estes Park, its officers and employees, as additional insured, the Contractor agrees to pay
for the cost of that defense.
6.1.2 Nothing in the INSURANCE PROVISIONS shall limit the Contractor's responsibility for payment of
claims, liabilities, damages, fines, penalties, and costs resulting from its performance or nonperformance
under the Contract.
Article 7--CONTRACTOR'S RESPONSIBILITIES
7.1 Control of the Work
7.1.1 When the Contractor is not present on the Project it shall have a Superintendent or other
representative acceptable to the Town present who shall, during the absence of the Contractor, be its
representative and have immediate charge of the Project. The Superintendent or representative shall have
the Contractor's authority to act in its absence. The Superintendent shall ensure expeditious and competent
handling of the work. A superintendent experienced in construction of the type specified and who is a
permanent member of the Contractor’s organization shall be a resident at the Project throughout the
construction. The superintendent shall be fully authorized to act for the Contractor and to receive whatever
orders or notices may be given for the proper prosecution of the work. The Contractor’s field organization
shall include an experienced staff of qualified technical personnel to handle on-site engineering, planning,
and direction of all fieldwork.
7.1.2 Any person employed on the Project who fails, refuses or neglects to obey the Superintendent or
Contractor's other designated representative, shall, upon the order of the Project Manager, be at once
removed from the Project and not again employed on any part of the Project.
7.2 General Use of Subcontractors
7.2.1 The Contractor may utilize the services of specialty Subcontractors on those parts of the Work
which, under normal contracting practices, are performed by specialty Subcontractors.
7.2.2 The Contractor shall not sublet or subcontract any portion of the Work to be done under the
Contract until approval of such action has been obtained from the Town.
66
11
7.2.3 The Contractor is fully responsible to the Town for the acts and omissions of its Subcontractors,
and of persons either directly or indirectly employed by them.
7.2.4 Nothing contained in the Contract creates any contractual relationship between any Subcontractor
and the Town.
7.2.5 The Contractor shall put appropriate provisions in all Subcontracts relative to the Work to bind
Subcontractors to the terms of the Contract insofar as applicable to the Work of Subcontractors, and to give
the Contractor the same power to terminate any Subcontractor that the Town may exercise over the
Contractor.
7.2.6 The Contractor shall make available to each proposed Subcontractor, before the execution of the
subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and,
upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the
proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors
shall similarly make copies of applicable portions of such documents available to their respective proposed
Sub-Subcontractors.
7.3 Materials and Equipment Furnished by the Contractor
7.3.1 The Contractor shall furnish and pay the cost of all of the necessary materials not furnished by the
Town, all the superintendence, labor, tools, equipment, installation, maintenance, dismantling and removal
of materials, supplies, temporary facilities, machinery and transportation. The Contractor shall perform all
the work required for the construction of all structures listed and itemized under the Bid Schedule of the Bid
in strict accordance with the plans, Specifications and requirements and any amendments thereto and
supplemental plans and Specifications hereafter approved.
7.3.2 Unless otherwise provided for in the Specifications, all workmanship, equipment, materials, and
articles incorporated in the Project are to be the best of their respective kinds, new and undamaged.
7.3.3 Materials, supplies or equipment to be incorporated into the Project shall not be purchased by the
Contractor or any Subcontractor subject to chattel mortgage or under a conditional sales contract or other
agreement by which an interest is retained by the seller.
7.3.4 The Contractor shall furnish the Project Manager, for the Manager's approval, the name of the
manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in
the Project. The Contractor shall also furnish information on capacities, efficiencies, sizes, etc., and other
information as may be required by the Project Manager. The Contractor shall submit samples for approval
when requested. Machinery, equipment, materials, and articles installed or used without the Project
Manager's approval are at the risk of subsequent rejection.
7.3.5 The Contractor shall give the Project Manager an electronic copy of all shop manuals, operating
manuals, parts lists, classifications, catalog cuts, Specifications, warranties and guarantees for all
equipment and machinery installed.
7.3.6 Consideration of a product as an "equal" by the Project Manager may require that the
manufacturer of such product furnish guarantees that extend beyond the usual product warranty
time. The refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product.
7.4 Patents and Copyrights
7.4.1 The Contractor shall provide a suitable legal agreement with the patentee giving the Contractor the
right to use any design, device, material, or process covered by letters patent or copyright, in the
construction of the Project when the use has not been specified or required by the Drawings and
Specifications. The Contractor shall file a copy of this agreement with the Town, if requested. The
67
12
Contractor and the Surety shall indemnify, defend and save harmless the Town from all claims for
infringements on patented design, devices, material, process or any trademark or copyright during the
prosecution or after the completion of the Project.
7.4.2 If any design, device, material, process or product of a particular manufacturer covered by letters
patent or copyright is specified for use by the Drawings and Specifications, the Town is responsible for any
claims for infringement by reason of the use of such design, device, material, process or product of a
particular manufacturer; but the Contractor shall pay any royalties or license fees required.
7.5 Existing Utilities
7.5.1 The Town has collected and shown on the Drawings available information on the location of existing
underground, surface and overhead structures and utilities. However, the Town does not guarantee the
results of the investigations are accurate or complete. It is the Contractor's responsibility to verify all
locations of existing structures and utilities shown on the Drawings and to ascertain whether any other
structures and utilities exist.
7.5.2 The Contractor shall support, and protect from injury, existing power lines, telephone lines, water
mains, gas mains, sewers, cables, conduits, ditches, curbs, walks, pavements, driveways, and other
structures in the vicinity of the Project which are not authorized to be removed until completion of the
Project.
7.6 Coordination with Town Departments
7.6.1 The Contractor shall always coordinate its Work with the Town of Estes Park Public Works and
Utilities Departments. If it becomes necessary to close portions of any water system due to construction
operations, a minimum of 48 hours notification shall be given the Utilities Department and whenever
possible one week's notice should be given. It is the Contractor's responsibility to ensure continuity of the
utilities.
7.6.2 If Town owned electrical utilities are involved, the Contractor shall coordinate its Work with the
Town of Estes Park Utilities Department. Contractors should make every effort to give the Utilities
Department one week's notice of upcoming construction involving the electric services; a minimum of 48
hours notification shall be given to the Utilities Department.
7.6.3 All electrical power and water from Town owned utilities required for the Project will be provided at
the Contractor's expense.
7.7 Laws and Ordinances
7.7.1 The Contractor shall perform all obligations under the Contract in strict compliance with all
federal, state, and municipal laws, rules, statues, charter provisions, ordinances, and regulations,
applicable to the performance of the Contractor under the Contract.
7.7.2 The Contractor shall obtain all other permits and licenses required in the prosecution of the Work.
7.7.3 IT IS UNLAWFUL AND UNETHICAL FOR ANY PERSON TO OFFER, GIVE OR AGREE TO GIVE
ANY TOWN EMPLOYEE, TOWN OFFICIAL OR FORMER TOWN EMPLOYEE, OR FOR ANY TOWN
EMPLOYEE, TOWN OFFICIAL OR FORMER TOWN EMPLOYEE TO SOLICIT, DEMAND, ACCEPT OR
AGREE TO ACCEPT FROM ANOTHER PERSON, A GRATUITY OR AN OFFER OF EMPLOYMENT IN
CONNECTION WITH ANY DECISION, APPROVAL, DISAPPROVAL, RECOMMENDATION OR
PREPARATION OF ANY PART OF A PROGRAM REQUIREMENT OR A PURCHASE REQUEST,
INFLUENCING THE CONTENT OF ANY SPECIFICATION OR PROCUREMENT STANDARD,
RENDERING OF ADVICE, INVESTIGATION, AUDITING OR IN ANY OTHER ADVISORY CAPACITY IN
ANY PROCEEDING OR APPLICATION, REQUEST FOR RULING, DETERMINATION, CLAIM OR
CONTROVERSY, OR OTHER PARTICULAR MATTER, PERTAINING TO ANY PROGRAM
68
13
REQUIREMENT OR A CONTRACT OR SUBCONTRACT, OR TO ANY SOLICITATION OR PROPOSAL
THEREFOR.
7.7.4 IT IS UNLAWFUL AND UNETHICAL FOR ANY PAYMENT, GRATUITY OR OFFER OF
EMPLOYMENT TO BE MADE BY OR ON BEHALF OF A SUBCONTRACTOR UNDER A CONTRACT TO
THE PRIME CONTRACTOR OR HIGHER TIER SUBCONTRACTOR OF ANY PERSON ASSOCIATED
THEREWITH, AS AN INDUCEMENT FOR THE AWARD OF A SUBCONTRACT OR ORDER.
7.8 Protection of Persons
7.8.1 It is a condition of the Contract, and the Contractor shall make a condition of each Subcontract
entered into pursuant to the Contract, that the Contractor and any Subcontractor shall not require any
laborer, mechanic or other person employed in performance of the Contract to work in surroundings or
under working conditions which are unsanitary, hazardous or dangerous to health or safety. The Contractor
shall comply with all applicable safety rules and regulations adopted by the United States Department of
Labor Occupational Safety and Health Administration (OSHA), the Industrial Commission of the State of
Colorado or the Town of Estes Park, whichever is most restrictive. The Town assumes no duty to insure
that the Contractor follows the safety regulations issued by OSHA or the State of Colorado.
7.8.2 For operations involving trenching, excavation or any other underground construction, the
Contractor's attention is specially directed to and its Work shall conform to the Construction Safety and
Health Regulations, Part P Subparagraph 1926.650-653 by OSHA, latest revision.
7.8.3 The Contractor shall always, whether or not so specifically directed by the Project Manager, take
necessary precautions to ensure the protection of the public. The Contractor shall furnish, erect, and
maintain at its own expense all necessary precautions for the protection of the Work and safety of the public
through and around its construction operations.
7.9 Protection of Property
7.9.1 The Contractor shall continuously and adequately protect the Work from damage, injury or loss
arising in connection with the Contract. It shall repair or replace at its expense any such damage, injury or
loss, except such as may be directly due to error in the Contract or caused by agents or employees of the
Town. It shall provide and maintain at its expense all passageways, barricades, guard fences, lights, and
other protection facilities required by public authority or local conditions.
7.9.2 The Contractor is responsible for protection of all public and private property on and adjacent to
the site of the Work. It shall use every precaution necessary to prevent damage to curbs, sidewalks,
driveways, trees, shrubs, sod, mailboxes, fences, and other private and public improvements. It shall
protect carefully from disturbance or damage all land monuments and property markers until an authorized
agent has witnessed or otherwise referenced their locations, and shall not remove them until directed.
7.9.3 The Contractor shall carefully preserve all monuments, benchmarks, property pins, reference
points, and stakes. The Contractor shall be charged with the expense of replacement of any such items
destroyed and shall be responsible for any mistake or loss of time that may be caused. Permanent
monuments or benchmarks which must be removed or disturbed shall be protected until they can be
properly referenced for relocation. The Contractor shall furnish materials and assistance for the proper
replacement of such monuments or benchmarks, but actual replacement shall be done by a licensed
surveyor.
7.9.4 Whenever, in the opinion of the Town, the Contractor has not taken sufficient precaution for the
safety of the public or the protection of the work to be constructed under the Contract or of adjacent
structures or property, and whenever, in the opinion of the Town, an emergency has arisen and immediate
action is considered necessary, then the Town, with or without notice to the Contractor, may provide
suitable protection by causing work to be done and material to be furnished and placed. The cost of such
work and material shall be borne by the Contractor and, if the same is not paid on presentation of the bills
therefore, such costs may be deducted from any amounts due or to become due the Contractor. The
69
14
performance of such emergency work shall not relieve the Contractor of responsibility for any damage that
may occur.
7.10 Protection of Historical Sites
7.10.1 When the Contractor's excavating operations encounter remains of prehistoric people's dwelling
sites or artifacts of historical or archeological significance, the Contractor shall temporarily discontinue the
operations, and immediately advise the Project Manager. The Project Manager will contact archeological
authorities to determine the disposition of the items in question. When directed, the Contractor shall
excavate the site in such a manner as to preserve the artifacts encountered and remove them for delivery
to the custody of the proper authorities. Such excavation is considered, and paid for, as extra Work.
70
15
7.11 Responsibility to Repair
7.11.1 Should any existing property be damaged, the Contractor shall immediately notify the owner of
such property. Unless authorized in writing by the owner of the property or directed by the Project Manager,
the Contractor shall not attempt to make repairs. Written authorization from the owner to make repairs
must be so worded as to save the Town harmless from any responsibility whatsoever relative to the
sufficiency of the repairs, and to make the Town a beneficiary of that provision. The Contractor shall give
the Project Manager a copy of the written authorization to make repairs.
7.11.2 When any direct or indirect damage or injury is done to any public or private property or utility by
or on account of any act, omission, neglect or misconduct in the execution of the Work, the Contractor shall
restore the damaged property at its own expense to a condition equal to or better than that existing before
such damage or injury.
7.11.3 The Contractor shall replace any materials and equipment lost, stolen, damaged or otherwise
rendered useless during the performance of Work on the Project.
7.12 Traffic Control
7.12.1 The Contractor shall arrange Work to disrupt traffic as little as possible. All traffic Control Devices
used shall conform to the latest edition of the Manual of Uniform Traffic Control Devices, (MUTCD). Except
as otherwise permitted, two-way traffic shall be maintained at all times in public roadways. At least 72
hours before starting any Work in Town right-of-way, the Contractor shall submit a detailed traffic control
plan for review from the Public Works Department. The approval shall establish the requirements for
closures related to the number of lanes and time of day lanes or streets may be closed. The Traffic Control
Plan (TC Plan) shall include the name of the contractor, the name and phone number of the person
responsible for the traffic control, the date for beginning and ending construction activity and hours of
operation expected. The TC Plan should show the widths of streets involved, traffic lanes, the size and
location of the Work area with distances from the curb, distance to the nearest intersection and the type
and location of traffic control devices. No changes to the TC Plan shall be permitted without prior approval
by the Public Works Department.
7.12.2 The Contractor shall furnish and maintain all necessary signs, barricades, lights, and flaggers
necessary to control traffic and provide for safety of the public, all in compliance with the MUTCD with
subsequent revisions and additions, and to the satisfaction of the Public Works Department.
7.12.3 Whenever a police officer is necessary for traffic control, the Contractor shall hire and pay a
uniformed off-duty police officer with authority in the Town to direct traffic. The police department will
determine the rate of pay for the officers.
7.12.4 The Contractor shall make its Traffic Control plans in concurrence with the Traffic Control
requirements specifically stated in the Special Conditions.
7.13 Sanitary Regulations
7.13.1 The Contractor is responsible for providing proper health and sanitation facilities for its employees,
in compliance with any rules and regulations of the State Board of Health or any other bodies having
jurisdiction.
7.13.2 The Contractor shall always provide an abundant supply of safe drinking water for its employees
and shall give orders against the drinking of any water known to be unsafe in the vicinity of the Project.
7.13.3 At convenient places, the Contractor shall provide fly-proof outside toilets which are to be
maintained in a sanitary condition. Toilets shall not be permitted in any reservoir area and shall not be
permitted where they may pollute a water supply.
71
16
7.14 Pollution Control
7.14.1 The Contractor shall comply with all applicable Federal and State laws, orders, and regulations
concerning the control, prevention, and abatement of water pollution, air pollution, and noise pollution in all
operations pertaining to the Contract whether on right-of-way provided by the Town or elsewhere.
7.14.2 The Contractor shall use construction methods that prevent release, entrance or accidental spillage
of solid matter, contaminants, debris, and other objectionable pollutants and wastes including, but not
restricted to refuse, garbage, cement, concrete, sewage effluent, industrial waste, radioactive substances,
oil and other petroleum products, aggregate processing tailings, mineral salts, and thermal pollution. Non-
regulated solid wastes shall be disposed of by methods approved under applicable laws and regulations,
including, the Resource Conservation and Recovery Act (RCRA), Subtitle D, as administered by Colorado
and local Health Departments and the EPA. Contaminated and hazardous materials are regulated by
RCRA, Subtitles C and D. The Contractor shall notify the Colorado Department of Public Health and
Environment, local health departments, and the Estes Valley Fire Protection District if suspect materials
are encountered.
7.14.3 The Contractor shall utilize methods and devices that are reasonably available to control, prevent,
and otherwise minimize atmospheric emissions or discharges of air contaminants including dust in its
construction activities and operation of equipment.
7.14.4 The Contractor shall not emit dust into the atmosphere during any operations, including but
not limited to: grading; excavating; manufacturing, handling or storing of aggregates; trenching; or cement
or pozzolans. The Contractor shall use the necessary methods and equipment to collect, deposit, and
prevent dust from its operations from damaging crops, orchards, fields or dwellings or causing a nuisance
to persons. The Contractor is liable for any damage resulting from dust.
7.14.5 The Contractor may not operate equipment and vehicles with excessive emission of exhaust gases
due to improper mechanical adjustments, or other inefficient operating conditions, until repairs or
adjustments are made.
7.14.6 Burning trash, rubbish, trees, brush or other combustible construction materials is permitted only
when the Contractor has any necessary burning permit from any authority having jurisdiction. Burning shall
be conducted in strict conformance with the permit.
7.14.7 De-watering for structure foundations or earthwork operations adjacent to or encroaching on lakes,
streams or water courses shall be done in a manner which prevents muddy water and eroded materials
from entering the lakes, streams or water courses, by construction of intercepting ditches, bypass channels,
barriers, settling ponds or by other approved means. Excavated materials may not be deposited or stored
in or alongside lakes or water courses where they can be washed away by high water or storm runoff.
7.14.8 The Contractor may not allow waste water from aggregate processing, concrete batching or other
construction operations to enter lakes, streams, water courses or other surface waters without turbidity
control methods such as settling ponds, gravel-filter entrapment dikes, approved flocculation processes
that are not harmful to fish, recirculation systems for washing of aggregates or other approved methods.
Any waste waters discharged into surface waters shall conform to applicable discharge standards of the
Colorado Department of Public Health and Environment and the Federal Government.
7.15 Stormwater Quality
7.15.1 The Contractor shall be responsible for the preservation and protection of storm water collection
systems and other natural and developed drainage ways, which may be affected by Work done under the
Contract. Any construction activity may be required to obtain a Stormwater Discharge Permit Associated
with Construction Activity from the Colorado Department of Public Health and Environment (CDPHE). The
Colorado Department of Public Health and Environment, Water Quality Control Division, can be reached at
303-692-3500 http://www.cdphe.state.co.us/wq/PermitsUnit/wqcdpmt.html ). Unless otherwise indicated,
72
17
the Contractor is responsible for obtaining this permit from the Colorado Department of Public Health and
the Environment.
7.15.2 The Contractor shall satisfy all environmental quality standards imposed by law and take
reasonable steps to minimize the environmental impact of the work. In compliance with applicable Town,
state and federal law:
1. The Contractor shall not pollute the water of any pond, lake, stream, ditch, or other watercourse.
2. The Contractor will implement erosion control practices and stormwater best management
practices.
3. The Contractor will comply with all appropriate groundwater discharge permits associated with
this project.
7.15.3 All permit requirements must be met throughout the warranty period and until Final Stabilization is
reached.
7.15.4 For purposes of this Contract, the Project Manager is authorized to enforce the Estes Park
Municipal Code. Any direct costs, including assessed fines, will be charged to the Contractor and
appropriate deduction will be made from the Contractor’s monthly payments.
7.15.5 This work consists of constructing, installing, maintaining, and removing when required, erosion
control measures during the life of the Contract or length of any permit, whichever is open longer, to prevent
or minimize erosion, sedimentation, and pollution of any state waters including wetlands as defined in the
Colorado Department of Transportation Standard Specifications Section 208 or 107.25, or Urban Drainage
and Flood Control District (UDFCD) Volume 3 Urban Storm Drainage Criteria Manual, or Town design
standards.
7.15.6 The Contractor shall coordinate the construction of temporary erosion control measures with the
construction of permanent erosion control measures to assure economical, effective and continuous
erosion control throughout the construction and warranty period.
7.15.7 The materials for erosion control measures shall conform to Section 208 of the Colorado
Department of Transportation Standard Specifications or Urban Drainage and Flood Control District
(UDFCD) Volume 3 Urban Storm Drainage Criteria Manual.
7.15.8 The Contractor is responsible for complying with the requirements of any Town development permit
or approval and the Stormwater Discharges Permit associated with Construction Activity Permit from
CDPHE until the permits have been formally inactivated. Contract requirements include:
● Develop a Stormwater Management Plan (SWMP) and submit to the Town for review and approval.
● After Town approval of the SWMP, submit a permit application to CDPHE at least 10 days prior to
the start of construction activities.
● Submit proof of issuance of a Town development permit or approval and proof of issuance of a
Stormwater Discharge Permit Associated with Construction Activity to the Project Manager.
During Construction
● Keep a current copy of the SWMP on site at all times.
● Document any plan changes on the approved SWMP.
● Install Best Management Practices (BMPs) according to specifications outlined in the SWMP.
● Perform visual inspection daily.
● Perform written inspections of stormwater and erosion controls every 14 days and following each
significant storm event.
● Maintain inspection records and maintenance records on-site with the SWMP at all times.
● Provide SWMP and inspection records to Town Inspector upon request.
● Maintain and modify BMPs to reflect current conditions of the job site until Final Stabilization is
achieved.
73
18
● In accordance with project schedule, implement phasing of grading and temporary vegetation cover
to properly manage site runoff during periods of construction inactivity.
Post-Construction
● Project Manager or Designee will determine when final stabilization is reached. Final Stabilization,
as defined by the State of Colorado, is reached when all soil disturbing activities at the site have
been completed and a uniform vegetative cover has been established with a density of at least 70
percent or pre-disturbance levels or equivalent, permanent, physical erosion reduction methods
have been employed.
● Remove all temporary BMPs.
● Inactivate Town development permit and the Stormwater Discharge Permit Associated with
Construction Activity through Inactivation Notice or Notice of Transfer or Reassignment as
determined by the Project Manager.
7.15.9 For more specific information about SWMP requirements, refer to state standards and
specifications.
7.15.10 Construction sites that discharge un-permitted stormwater are in violation of the Clean Water Act,
and may be subject to fines of up to $25,000 a day per violation and subject to additional civil penalties.
7.15.11 When included in the Special Conditions, the Contractor shall assign to the project an employee,
or other person approved by the Project Manager to serve in the capacity of the Erosion Control Supervisor
(ECS). The ECS shall be a person other than the Contractor’s superintendent, unless otherwise approved
by the Project Manager. The ECS shall be experienced in all aspects of construction and have satisfactorily
completed an ECS training program authorized by the Town. Certified Erosion Control Training is required
for contractors responsible for installing and maintaining the BMPs. Call (303) 441-1439 to inquire about
the next training opportunity. Proof that this requirement has been met shall be submitted to the Project
Manager prior to start of any earth disturbance work.
7.15.12 The ECS’s responsibilities shall be as follows:
● Ensure compliance with all water quality permits in effect during the construction work.
● Directly supervise the installation, construction, and maintenance of all erosion control measures
specified in the Contract and coordinate the construction of erosion control measures with all
other construction operations.
● Direct the implementation of suitable temporary erosion and sediment control features as
necessary to correct unforeseen conditions or emergency situations. Direct the dismantling of
those features when their purpose has been fulfilled unless the Project Manager directs that the
features be left in place.
● Inspect all erosion control features implemented for the project. The written inspections shall
take place at least once every 14 days and after each storm event that causes surface runoff
and be available for review upon request. The appropriate form for this report will be supplied by
the Project Manager. The inspections shall be made during the progress of the work, during work
suspensions, and until final stabilization acceptance of the work. During project suspensions,
inspections shall take place at least once every 14 days, or as directed.
● Attend all project scheduling meetings as required by Project Manager.
● Upon the Project Manager or Inspector’s request, implement necessary actions to reduce
anticipated or presently existing water quality or erosion problems resulting from construction
activities. The criteria by which the Project Manager or Inspector initiates this action may be
based on water quality data derived from monitoring operations or by any anticipated conditions
(e.g., predicted storms) which the Project Manager or Inspector believes could lead to unsuitable
water quality situations.
7.15.13 All erosion control shall be performed in accordance with Sections 208 of the Colorado Department
of Transportation’s Standard Specifications or Construction Best Management Practices of UDFCD Volume
3 Urban Storm Drainage Criteria Manual.
74
19
7.15.14 Unless listed in the Bid Document, all erosion control features, including the Erosion Control
Supervisor will not be measured, but will be paid for on a lump sum basis. The lump sum price bid will be
full compensation for all work required to complete the item.
7.15.15 Work to furnish, install, maintain, remove and dispose of erosion and sediment control features
specified in the Bid document will be paid for at the contract unit price.
7.16 Cleaning Up and Restoration
7.16.1 The Contractor shall clean up all refuse or scrap materials so the site presents a neat, orderly, and
workmanlike appearance at all times.
7.16.2 Upon completion of the Project, and before Final Inspection, the Contractor shall remove from the
construction site and any occupied adjoining property all plants, buildings, refuse, unused materials, forming
lumber, sanitary facilities, and any other materials and equipment that belong to the Contractor or its
Subcontractors.
7.16.3 The Town may clean up and restore the construction site satisfactorily when the Contractor fails to
do so. Any costs the Town incurs will be deducted from the Final Payment due the Contractor.
Article 8--OTHER WORK
8.1 The Town reserves the right to award other Contracts in connection with the Project. The
Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and
storage of their materials and the execution of their work, and shall coordinate its Work with theirs.
Article 9--TOWN'S RESPONSIBILITIES
9.1 The Town will furnish the data required by the Contract and will make payments to the Contractor
as provided by these General Conditions.
Article 10--PROJECT MANAGER'S RESPONSIBILITIES
10.1 The Project Manager (Project Manager is a defined term meaning the Town’s authorized
representative) shall maintain Owner's authority over the Contractor relating to field direction and project
administration, but does not assume liability for the Contractor's work, nor control scheduling whenever
such performance is located in or upon the Town's property. The Project Manager will furnish or coordinate
all explanations from consultants, field directions, horizontal and vertical control and inspections necessary
to assure compliance with the Project documents, except as otherwise stated in the Project documents.
10.2 Lines and Grades
10.2.1 The Contractor shall survey and stake as specified in the Special Conditions.
10.2.2 If the Special Conditions indicate the Project Manager is responsible for appointment and payment
of a surveyor for construction staking. The Contractor shall give assistance, as required by the Surveyor,
to aid in the staking, including clearing, improving access, exploratory excavations, and suspending
operations to permit the surveyor to perform its work.
75
20
10.2.3 If the Project Manager appoints a Surveyor, the Contractor shall give notice to the Surveyor at least
five working days before initial lines and grades are needed. Thereafter, the Contractor shall give the
Surveyor notice at least three working days before additional line and grade stakes are needed. The Project
Manager is not responsible for providing lines and grades until the Contractor meets the notice
requirements of this Article.
10.2.4 If the Project Manager appoints a surveyor, the Contractor shall preserve all stakes, benchmarks,
and any other survey points. If the Contractor damages them, the Contractor shall pay for their
replacement. Contractor shall preserve, reset or reestablish all bench marks, monuments and other
established control points as the Project warrants.
10.3 Inspection
10.3.1 The Project Manager shall appoint Inspectors to inspect the Project. Inspection may extend to all
or any part of the Project. The Inspectors are not authorized to alter the provisions of the Drawings or
Specifications or to delay the fulfillment of the Contract by failure to inspect materials and Work with
reasonable promptness.
10.3.2 An Inspector has authority to reject defective materials and to suspend any Work that is being done
improperly subject to the final decision of the Project Manager.
10.3.3 The Contractor shall give the Project Manager due and timely notice of readiness when the Project
is to be inspected, tested or approved by someone other than the Inspector. The Contractor shall give the
Project Manager required certificates of inspection, testing or approval. Inspection, tests or approvals by
the Project Manager or others does not relieve the Contractor from its obligations to perform the Work
according to the requirements of the Contract.
10.3.4 If the Project Manager considers it necessary or advisable that previously completed or covered
Work be inspected or tested, the Contractor shall uncover, expose or otherwise make the Work available
to the Project Manager for inspection and testing. The Contractor shall furnish all tools, labor, material, and
equipment necessary to make the Work available. If the Project Manager finds the Work defective, the
Contractor shall pay for the cost of satisfactory reconstruction and making the Work available. However, if
the Work is not found defective, the Contractor will be allowed an increase in the Contract Price and/or an
extension of the Contract Time for costs and time directly attributable to making the Work available and for
reconstruction.
10.3.5 If the Contractor's operations require inspecting, testing or surveying to be done outside normal
working hours or on Town holidays, it shall be at the Contractor's expense.
10.4 Stop Work Order
10.4.1 The Project Manager has the authority to suspend Work on the Project either in whole or in part,
for as long as the Project Manager deems necessary due to:
Unsuitable weather;
Faulty workmanship;
Improper superintendence;
Contractor's failure to carry out orders or to perform any provision of the Contract;
Conditions which may be considered unfavorable for the prosecution of Work on the
Project; or
Work being carried on in an unsafe manner.
10.4.2 If it is necessary to stop work for an indefinite period, the Contractor shall, if directed by the Project
Manager, store all materials in such a manner that they will not become an obstruction or become damaged
in any way. The Contractor shall take every precaution to prevent damage to or deterioration of the Work,
providing suitable drainage and erecting temporary structures where necessary.
76
21
10.4.3 The Project Manager will put the Stop Work order in writing and the Contractor may not proceed
with Work on the suspended portion of the Project until notified in writing by the Project Manager.
10.5 Disputes
10.5.1 If the Contractor considers any Work directed by the Town to be outside the Contract requirements,
or if it considers any ruling of the Project Manager to be unfair, it shall immediately ask for a written
instruction or decision and shall perform the Work in conformance with the Project Manager's ruling. If the
Contractor considers such instructions unsatisfactory, it shall file a written protest with the Project Manager
within ten days after their receipt.
10.5.2 All claims, disputes and other matters in question arising out of or relating to the Contract shall be
submitted to the Project Manager before the Contractor can begin litigation.
10.5.3 The parties agree that any litigation by Contractor against the Town concerning this Contract shall
be filed not more than 2 years after the date of the Notice of Construction Acceptance. The parties agree
that any litigation filed by Town against Contractor concerning this Contract shall be filed not more than 2
years after the date of the Notice of Final Acceptance.
Article 11—CHANGES
11.1 General
11.1.1 The Town may make alterations to the Project without the consent of the Surety at any time during
the Work. The Contractor shall perform the Work as changed, as if originally specified. The alterations do
not invalidate the Contract in any way.
11.1.2 The Project Manager may, at any time, without notice to the Surety, by written notice to the
Contractor, make any change in the Work to be performed within the general scope of the Contract,
including but not limited to changes:
In the Specifications (including Drawings and designs);
In the method or manner of the performance of the Work;
In facilities, equipment, materials, services or site furnished by the Town; or
Directing acceleration in the performance of the Work.
11.1.3 Any written order (which terms as used in this Article shall include direction, instruction,
interpretation or determination) from the Project Manager, which may warrant a time extension or increased
or decreased costs) will be treated as a Change Order under this Article provided that the Contractor gives
the Project Manager written notice within seven (7) calendar days of that condition, stating the date,
circumstances, and source of the order and that the Contractor regards the order as a Change Order.
However, the Town will not authorize a change in the Contract Price for work done before approving a
Change Order authorizing the additional work. If the Town and the Contractor do not agree to the terms of
a Change Order, including the amount of additional compensation, the Contractor shall proceed with the
work under the terms of the Contract and shall maintain accurate records of the costs as described in the
General Conditions, Article 11.
11.1.4 The Contractor may not treat any order, statement or conduct of the Project Manager as a change
under this Article nor become entitled to an equitable adjustment in the Contract Price or Performance
Time, except as provided in this Article.
11.1.5 If any change under this clause causes an increase or decrease in the Contractor's cost or the time
required for the performance of any part of the Work under the Contract, whether or not changed by any
order, an equitable adjustment will be made and the Contract modified in writing accordingly.
77
22
In no case will the price adjustment change the original Contract Price to an amount not appropriated by
the Town Board and approved by the appropriate Town representative per its purchasing policies.
11.1.6 Claims for changes in the Contract Price or Contract Time of Performance will not be considered
after the Final Payment has been made.
11.2 Compliance with §24-91-103.6
11.2.1 Notwithstanding any other language in this contract, the issuance of any Change Order or other
form of order or directive by the Town requiring additional compensable work to be performed which will
cause the Contract Price to exceed the amount appropriated for the Work is prohibited unless the
Contractor is given written assurance by the Town that lawful appropriations to cover the costs of the
additional work have been made or unless the Contract contains a remedy granting provision.
11.3 Field Orders
11.3.1 The Project Manager may make changes in the details of the Project at any time, by issuing a Field
Order. The Contractor shall proceed with the performance of any changes in the Project ordered by the
Project Manager. If the Contractor believes that such Field Order entitles it to a change in Contract Price
or Time, or both, it shall give the Project Manager written notice within ten days after the receipt of the Field
Order. Thereafter, the Contractor shall document the basis for the change in Contract Price or Time within
thirty days.
11.4 Change Orders
11.4.1 Changes in the Contract Price are authorized only by Change Orders. Changes in contract time
may be made by a Change Order or by other appropriate written authorization. Any requests for extension
of time due to conditions outside of the Contractor's control shall be made in writing within seven (7)
calendar days of that condition.
11.4.2 Any difference in cost from Change Orders shall be added to or deducted from the amount of the
Contract, as the case may be. Adjustments in the amounts to be paid to the Contractor on account of
changed Work will be determined by one of the following methods in the order listed:
Unit Prices submitted in the Bid Schedule;
Negotiated Unit Prices; and
Negotiated lump sum.
11.5 Extras and Force Account Work
11.5.1 The Contractor shall perform any Work and furnish materials and equipment necessary or desirable
for proper completion of the Contract if the Project Manager believes it necessary to order Work or materials
or equipment which, in the Project Manager's opinion, are not susceptible to classification under the Unit
Price items named in the Bid Schedule, and are not included in any lump sum bid item. The Project
Manager will order such labor, material and equipment in writing before the extra Work is started. The
labor, material and equipment will be classed as extra Work. The Town will not pay for extra Work unless
the Town orders in extra work in writing. All claims for extra Work shall be submitted to the Project Manager,
supplemented by any data the Project Manager requires.
11.5.2 Extra Work and Work involving a combination of increases and decreases in the Work will ordinarily
be paid for at a lump sum or Unit Price agreed upon in writing by the Project Manager and Contractor before
the extra Work Order is issued. In the negotiation of lump sum or Unit Prices, the agreed estimated cost
of the Work plus an allowance for overhead and profit, not to exceed the allowances stated in Section
11.5.3, shall be used.
78
23
11.5.3 The allowance for overhead and profit will include full compensation for superintendence, bonds
and insurance premiums, taxes (other than sales or use taxes included in the cost of materials), office
expense, and all other items of expense or cost not included in the cost of labor, materials, or equipment
provided under Sections 11.5.4, 11.5.5 and 11.5.6. The allowance for overhead and profit will be according
to the following schedule:
ACTUAL NECESSARY COST ALLOWANCE:
Labor 20 percent
Materials 15 percent
Equipment 10 percent
The Actual Necessary Cost for labor, materials, or equipment will be computed according to Sections
11.5.4, 11.5.5 and 11.5.6.
Superintendence, bond and insurance premiums, taxes (other than sales or use taxes inclusive in the cost
of materials), and other general expense will not be included in the computation of actual necessary cost.
When all or any part of the extra Work is performed by a Subcontractor or specialty firm, the prime
Contractor may add five percent of the Subcontractor's total cost for the extra Work. The Contractor shall
give the Project Manager daily report sheets covering the direct cost of labor and materials and charges for
equipment. The daily report sheets shall provide names or identifications and classifications of workers and
hours worked, as well as size, type and identification number of equipment and hours operated. Material
charges shall be substantiated by valid copies of vendors' invoices. The Project Manager will make any
necessary adjustments and compile the costs of cost-plus Work. When these reports are agreed upon and
signed by both parties, they become the basis of payment for the Work performed.
11.5.4 Labor: The cost of labor used in performing the Work by the Contractor, a Subcontractor, or other
forces will be the sum of the actual wages paid plus any employer payments to, or on behalf of, workers for
fringe benefits including health and welfare, pension, vacation, and similar purposes; all payments imposed
by State and Federal laws including, but not limited to, compensation insurance, and social security
payments; and the amount paid for subsistence and travel required in accordance with the regular practice
of the employer.
At the beginning of the contract or as later requested by the Project Manager, the Contractor shall furnish
the Project Manager proof of labor compensation rates being paid or already paid.
11.5.5 Materials: The cost of materials used in performing the Work, including transportation charges for
delivery (exclusive of machinery rentals), will be the cost to the purchaser, whether Contractor,
Subcontractor or other forces, from the Supplier thereof, inclusive of sales or use taxes, except if, in the
opinion of the Project Manager, the cost of materials is excessive, or the Contractor does not furnish
satisfactory evidence of the cost of such material. If the Project Manager finds the cost excessive or the
Contractor has not furnished evidence of the cost, then the cost will be deemed to be the lowest current
wholesale price for the quantity concerned delivered to the job-site less cash or trade discounts.
The Town reserves the right to furnish materials for the Work and the Contractor may not claim costs and
profit on materials furnished by the Town.
The Town reserves the right to purchase from the Contractor any materials previously purchased for a
project and not used. Payment for the materials will be based on the actual material cost as shown on the
Supplier's invoice, any transportation charges incurred, plus a fifteen percent handling fee.
11.5.6 Equipment: The Contractor will be paid according to the rental rates agreed upon in writing before
extra or force account Work is begun, for any machinery or special equipment (other than small tools)
authorized by the Project Manager. The Contractor may furnish cost data to assist the Project Manager in
the establishment of the rental rate.
79
24
The rental rates paid, as provided above, shall include the cost of fuel, oil, lubrication supplies, small tools,
necessary attachments, repairs and maintenance of all kinds, depreciation, storage, insurance, and all
incidentals. Operator wages will be paid separately, as provided in Section 11.5.4.
Individual pieces of equipment or tools having a replacement value of $100.00 or less, whether or not
consumed by use, are considered small tools and no payment will be made for them.
Rental time will not be allowed while equipment is inoperative due to breakdowns or storage on-site.
11.5.7 Equipment on the Work: The rental time to be paid for equipment on the Work is the time the
equipment is in productive operation on the extra Work being performed.
11.5.8 Eliminating Items: The Project Manager shall notify the Contractor in writing to eliminate any items
contained in the proposal unnecessary for the proper completion of the Work. Such action will not invalidate
the contract. The Contractor, by Change Order, will be reimbursed for actual work done and all cost
incurred, including mobilization of materials and equipment before the elimination of such items.
Article 12--CONTRACT TIME
12.1 General
12.1.1 Time is of the essence in the performance of all Work contemplated in the Contract. Therefore,
the Work shall be commenced no later than ten days from and including the date of Notice to Proceed and
shall be fully completed in a satisfactory and acceptable manner within the time stated in the Contract.
12.1.2 The capacity of the Contractor's construction plant and force shall be sufficient as to insure
completion of the Project within the allotted time. The Contractor shall use multiple crews if necessary to
complete the Project within the allotted time.
12.2 Delays
12.2.1 Delay claims fall into three categories: non-excusable, excusable, or compensable. Any payment
for delays or the granting of time extensions require a properly executed Change Order per Article 11.
12.2.1.1 Non-excusable delay is one caused by factors within the Contractor's reasonable control.
The delay is the Contractor's fault; no additional time or additional compensation is allowed. Typical types
of non-excusable delays are:
Late submittal of Shop Drawings;
Late procurement of materials or equipment;
Insufficient personnel;
Unqualified personnel;
Inadequate coordination of Subcontractors or other contractors;
Subcontractor delays;
Late response to Town and Project Manager inquiries; or
Construction not conforming to contract requirements making repeated re-working
necessary.
12.2.1.2 Excusable delay is caused by factors beyond the Contractor's reasonable control, but is
not the result of the Town's actions or failure to act. An excusable delay entitles the Contractor to an
extension of time but no additional compensation for the cost of the delay.
80
25
12.2.1.3 Compensable delay is one where the Town has failed to meet an obligation stated or
implied in the construction contract. If the Project Manager considers a delay as compensable, the Town
will grant a time extension and reimburse the Contractor for the increased cost caused by the delay. Typical
types of Town-caused delays are:
Late approval of Shop Drawings and samples;
Delays in answers to field inquiries by the Contractor;
Interference with the Contractor during construction;
Town-caused schedule changes;
Design changes; or
Interference by other contractor's or the Town's forces.
12.3 Failure to Complete Work on Time--Liquidated Damages
12.3.1 The Town may permit the Contractor to proceed if the Contractor fails to substantially complete the
Work on or before the original date set forth for Substantial Completion in the Contract, or on or before the
corrected date of Substantial Completion. In such case, the Town will deduct the sum specified in the
Contract for each day that the Work remains uncompleted. This sum shall not be a penalty but is liquidated
damages.
12.3.2 The parties agree that, under all of the circumstances, the daily basis and the amount set forth as
liquidated damages is reasonable and equitable. The Town expends additional personnel effort in
administrating the Contract or portions of it that are not completed on time, and such efforts and the costs
thereof are impossible to accurately compute. In addition, some, if not all, citizens of Estes Park incur
personal inconvenience and lose confidence in their government as a result of public projects or parts of
them not being completed on time, and the impact and damages, certainly serious in monetary as well as
other terms, are impossible to measure.
12.3.3 The Contractor shall perform with due diligence, regardless of meeting the various scheduled
deadlines. If, in the opinion of the Town's Project Manager, or other authorized agent of the Town, the
Contractor is not prosecuting the Work under the Contract, written notice will be given and the Contractor
shall have seven days to resume the Work with due diligence. Failing a cure, liquidated damages will be
charged until there is resumption of prosecution with due diligence.
12.3.4 Permitting the Contractor to continue and finish the Work, or any part of it, after the time fixed for
its completion, or after the date to which the time of completion may have been extended, shall not operate
as a waiver on the part of the Town of liquidated damages or any of its rights under the Contract.
Article 13--WARRANTY AND GUARANTEE: SAMPLES AND TESTING; DEFECTIVE WORK AND
MATERIALS
13.1 Warranty and Guarantees
13.1.1 The Contractor and its Surety are jointly and severally responsible for the condition of all completed
Work, maintenance (unless the Town is required by the Special Conditions to assume responsibility for
maintenance) and satisfactory operation of Work performed under the Contract for a period of two years
following the Notice of Construction Acceptance or for one year after warranty work is fully satisfied. A
notice of warranty work that requires repair or replacement under the warranty will be submitted to the
Contractor on a Notice of Warranty Work. The Contractor and Surety are jointly and severally responsible
for the satisfactory repair or replacement of any Work, materials or equipment which are found defective
during this period, provided any failure results directly or indirectly from faulty workmanship or negligence
by the Contractor, from faulty manufacturing or from faulty erection or improper handling of materials or
equipment furnished or installed by the Contractor. Neither the Contractor nor Surety is liable for any failure
resulting from the Town's neglect or improper operation of facilities or the acts of third parties.
81
26
13.2 Samples and Testing
13.2.1 All materials and equipment used in the Project will be subject to sampling and testing according
to generally accepted standards and as required in the Contract Documents. In the absence of direct
references, the sampling and testing of materials will be done according to current Specifications of the
American Society for Testing and Materials or the American Water Works Association. The Contractor
shall cooperate with the Project Manager in collecting and forwarding required samples.
13.2.2 The Contractor shall not incorporate any materials into the Project or cover any part of the Work
until it has been inspected and approved according to the Contract Documents.
13.2.3 The Contractor shall furnish all samples without charge. The Contractor will cooperate with the
Project Manager in collecting, handling, storing, and forwarding required samples including the furnishing
of manpower and equipment when necessary.
13.2.4 The Town will pay the cost of the initial test except when the Contract states otherwise. The Town
will charge the Contractor for repeated tests due to failure of the initial test.
13.3 Access to Work
13.3.1 The Project Manager and the Manager's representatives shall have access to the Project at any
time for purposes of inspection, sampling, and testing. Access shall extend to authorized representatives
of participating federal or state agencies and to other public authorities having jurisdiction established by
law. The Contractor shall provide proper facilities for access to the Project.
13.3.2 Access to the Project shall mean wherever and whenever it is in manufacture, preparation or
progress. It shall include access to payrolls, records of personnel, invoices of materials, terms and
conditions of sale of materials and equipment to be incorporated in the Project, files, records, books,
correspondence, instructions, Drawings, receipts, subcontracts, purchase orders, vouchers, memoranda
and any other relevant data and records relating to the Contract.
13.3.3 The Town may, at reasonable times, inspect the part of the plant, place of business or worksite of
the Contractor or Subcontractor at any tier which is pertinent to the performance of the Contract.
13.4 Defective Work and Materials
13.4.1 Material and workmanship not conforming to the requirements of the Contract are deemed
defective. Defective Work or material shall be removed immediately from the Project site and replaced with
acceptable Work and material at the Contractor's expense.
13.4.2 If the Contractor fails to replace rejected materials or Work within ten days after receipt of written
notice, the Town may replace or correct them and charge the cost to the Contractor and may terminate the
right of the Contractor to proceed. Failure to detect previously installed defective materials or workmanship
shall not impair the Town's right to receive a completed project which is free of defects and meets all of the
requirements of the Contract Documents.
82
27
Article 14--PAYMENTS TO CONTRACTOR AND COMPLETION
14.1 General
14.1.1 Unless expressly provided otherwise, the prices shown in the Bid Schedule include the cost of all
labor, materials, equipment, tools, forms, services, utilities, royalties, fees, and any other thing or expense
necessary to complete the Project. Items not shown on the Plans, Specifications or Special Provisions but
which are necessary to construct the Project will be considered a part of the Project whether specified or
not and no separate payment will be made for these items.
14.1.2 Unless expressly provided otherwise in the Contract, the amount to be paid for the Work includes
all labor, materials, forms, tools, scaffolding, plants, equipment, service, utilities, royalties, fees, and
everything, whether temporary or permanent, necessary to complete the Project.
14.2 Determination of Amounts and Quantities
14.2.1 The Project Manager shall verify determinations of amounts and quantities of Work performed. The
Project Manager shall have access to the records as stated in Article 13.3. The method of measurement
of the Contract Bid Items will be as specified in the Special Conditions or Technical Specifications.
14.3 Variations in Estimated Quantities
14.3.1 Where the quantity of a pay item in the Contract is an estimated quantity and where the actual
quantity of such pay item varies more than twenty-five percent below the estimated quantity stated in the
Contract, the Contractor may request an equitable adjustment in the Contract Price, upon demand of the
Town. The Contract Price adjustment will be based upon any decrease in costs due solely to the variation
below seventy-five percent of the estimated quantity.
Where the quantity of a pay item in the Contract is an estimated quantity and the actual quantity of such
pay item is more than twenty-five percent above the estimated quantity in the Contract, the Town may elect
to terminate the Contract or issue a Change Order to adjust the Contract Price.
In no case will the price adjustment change the original Contract Price to an amount not appropriated by
the Town Board and approved by an appropriate representative of the Town under its purchasing policies.
14.4 Monthly Estimates--Partial Payments
14.4.1 The Contractor shall prepare monthly partial estimates (monthly estimates) for all Work completed
up to that time. The authorized Town representative(s) shall approve the monthly estimates before
progress payments will be made. The format of the monthly estimates will be related to the format of the
Bid Proposal.
14.4.2 In making such progress payments, subject to the exceptions in this Article, the Town will retain
five percent of the calculated value of completed Work for contracts in excess of $150,000 and where the
contractor is satisfactorily performing the contract. The withheld percentage of the Contract Price of any
contracted Work will be retained until the contract is completed satisfactorily and finally accepted by the
Town.
14.4.3 On Contract amounts of less than $150,000, ten percent may be withheld until Final Payment.
14.4.4 If the Town finds that satisfactory progress is being made in any phase of the Contract, it may,
upon written request by the Contractor, authorize payment from the withheld percentage to the Contractor.
Before payment is made, the Town shall determine that satisfactory and substantial reasons exist for the
payment and shall require written approval from any surety furnishing bonds for the Work.
83
28
14.4.5 Monthly estimates may include the value of acceptable materials required in the construction which
have been delivered on the site of the Work or to adjacent railway siding and for which acceptable provisions
have been made for preservation and storage, providing the Contractor submits with its monthly estimate,
paid invoices in duplicate for the material for which payment is being requested. Material paid for by the
Town becomes the property of the Town and, in the event of the default on the part of the Contractor, the
Town may use or cause to be used such materials in construction of the Work provided for in the Contract.
14.4.6 The Town may withhold, in addition to retained percentages from Contractor payments, such an
amount or amounts as may be necessary to cover:
14.4.6.1 Claims for labor or materials furnished the Contractor or Subcontractor(s) or reasonable
evidence indicating probable filing of such claims;
14.4.6.2 Failure of the Contractor to make proper payment to Subcontractors or for material or labor
furnished by others;
14.4.6.3 A reasonable doubt that the Contract can be completed for the balance then unpaid;
Evidence of damage to another Contractor or private property;
Uncorrected defective Work or guarantees that have not been met;
Failure of the Contractor to submit cost breakdowns, schedules, reports and other
information required under the Contract;
Persistent failure to carry out the Work according to the Contract; or
Reasonable evidence that the Work will not be completed within the Contract Time
and that the unpaid balance would not be adequate to cover actual or liquidated
damages for the anticipated delay.
14.4.7 The Town may disburse and has the right to act as agent for the Contractor in disbursing funds,
withheld pursuant to this paragraph, to the party or parties who are entitled to payment therefrom, but the
Town assumes no obligation to make such disbursement. The Town will render to the Contractor a proper
accounting of all funds disbursed under this paragraph.
14.5 Escrow Contract in Lieu of Retainage
14.5.1 When sums are withheld to assure satisfactory performance of any contract exceeding fifty
thousand dollars, the Contractor may withdraw the whole or any portion of the withheld sums if the
Contractor deposits acceptable securities with the Director of Finance to negotiate the acceptable securities
and to receive the payments due the Town pursuant to law or the terms of the Contract. To the extent there
are excess funds resulting from negotiation, the balance shall be returned to the Contractor. Acceptable
securities which are deposited shall have a market value at least equal in value to the amount withdrawn
at all times. If at any time the Town determines that the market value of the acceptable securities deposited
has fallen below the amount withdrawn, the Director of Finance shall give notice to the Contractor, who
shall deposit additional acceptable securities in an amount sufficient to re-establish a total deposit of
securities equal in value to the amount withdrawn.
14.5.2 The Town may enter into an escrow contract or agreement with any national bank, state bank, trust
company or savings and loan association located in this state and designated by the Contractor, after notice
to the Surety, to provide an escrow agent for the custodial care and servicing of any obligations deposited
with it pursuant to §24-91-106, C.R.S., as amended. Such services shall include the safekeeping of the
obligations and the rendering of all services required to effectuate the purpose of §24-91-106 and §38-26-
107, C.R.S., as amended.
14.5.3 The Town or any national bank, state bank, trust company or savings and loan association located
in the state and designated by the Contractor to serve as custodian for the obligations pursuant to §24-91-
106, C.R.S., as amended, shall collect all interest and income when due on the obligations deposited and
shall pay them, when and as collected, to the Contractor who deposited the obligations. If the deposit is in
84
29
the form of coupon Bonds the escrow agent shall deliver each coupon, as it matures, to the Contractor.
The Contractor may not charge any expense incurred for this service to the Town.
14.5.4 Any amount deducted by the Town, pursuant to law or the terms of a Contract, from the retained
payments otherwise due to the Contractor, will be deducted first from that portion of the retained payments
for which no obligation has been substituted and then from the proceeds of any deposited obligation, in
which case, the Contractor is entitled to receive the interest, coupons or income only from those obligations
which remain on deposit after such amount has been deducted.
14.5.5 Provided that the Subcontractor has performed under its Contract with the Contractor, the
Contractor shall disburse to each Subcontractor all retained payments and interest disbursed to the
Contractor by the Town, in proportion to the respective amounts of retained payments, if any, which the
Contractor has withheld from its Subcontractors.
14.5.6 The provisions of this Article do not apply if a part of the Contract Price is to be paid with funds from
the federal government or from some other source and if the federal government or such other source has
inconsistent requirements concerning retention or payment of funds applicable to the Contract.
14.5.7 If it becomes necessary for the Town to take over the completion of any Contract, all of the amount
owed the Contractor, including the withheld percentage, shall first be applied toward the cost of completion
of the Contract and any liquidated damages. Any balance remaining in the retained percentage shall be
payable to the Contractor or the Contractor's creditors. Such retained percentage, as may be due any
Contractor, shall be due and payable at the expiration of thirty days from the date of the Town Project Final
Acceptance.
14.6 Town's Right to Accept Portion of the Project
14.6.1 The Town reserves the right to accept and make use of any completed section of the Project without
invalidating the Contract or obligating the Town to accept the remainder of the Project.
14.7 Substantial Completion
14.7.1 When the Contractor considers the entire work ready for its intended use and has obtained either
a “Certificate of Occupancy” or a “Copy of the Final Inspection Approval Memo” from Building Inspections
for required structures, the Contractor shall notify the Project Manager in writing that the entire Work is
substantially complete (except for items specifically listed by Contractor as incomplete) and request that
the Project Manager issue a Notice of Substantial Completion. Within a reasonable time, the Contractor,
Project Manager and any other appropriate Town representatives shall make an inspection of the Work to
determine the status of completion. If the Project Manager does not consider the Work substantially
complete or the Contractor has not submitted either a “Certificate of Occupancy” or a “Copy of the Final
Inspection Approval Memo” from Building Inspections to the Project Manager, the Project Manager will
notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion. If the
Project Manager considers the Work substantially complete, the Project Manager will prepare and deliver
to the contractor a Notice of Substantial Completion which shall fix the date of Substantial Completion. The
Project Manager shall attach to the certificate a tentative list ("punch list") of items to be completed or
corrected before Final Payment. Warranties required by the Contract shall commence on the date set in
the Notice of Construction Acceptance for the Project, or the date set in the Notice of Construction
Acceptance for a designated portion of the Project, unless otherwise provided in the notice of Substantial
Completion.
14.8 Construction Acceptance
14.8.1 When the Work specified in the Contract is completed and the final cleanup has been performed,
the Contractor shall notify the Project Manager that all Work under the Contract has been completed and
the Project Manager shall, within fourteen calendar days of receipt of such notice, make the final inspection.
85
30
If the Project Manager finds that the Project has been completed according to the requirements set forth in
the Contract, the Town, upon the recommendation of the Project Manager, shall issue a Notice of
Construction Acceptance. Notices of Construction Acceptance issued orally or without proper Town
authorization are void. Town will not make the final payment under the Contract before it issues a
Construction Acceptance.
14.9 Claims Against the Contractor
14.9.1 Before Final Payment, the Contractor shall sign the Contractor's Certificate and Release form
provided by the Town.
14.9.2 As provided by Colorado law, persons or businesses, including Subcontractors, who have not been
promptly paid by the Contractor and who have provided materials, services and labor of any kind, or labor
and material incidental to the completion of the Project, may file claims and the Town may withhold from
the Contractor an amount sufficient to cover such claims.
14.10 Final Payment--Pursuant to Section 38-26-107, C.R.S., as Amended
14.10.1 The Town shall make a Final Settlement in accordance with Section 38-26-107, C.R.S., within sixty
days after the Town issues the Notice of Construction Acceptance.
14.10.2 After the Notice of Construction Acceptance is issued by the Town, a Notice of Final Settlement
shall be advertised at least twice, not less than ten days before the date of Final Settlement, in a newspaper
of general circulation in the county where the Work was done. If no claims are filed before the expiration
of ten days from the date of the last publication of the Notice of Final Settlement, the Final Payment,
including retainages, may be made.
14.10.3 If any Subcontractor or Supplier files a claim before the expiration of ten days from the date of the
last publication of the Notice of Final Settlement, for Work done or material furnished that has not been paid
for by the Contractor, the Town shall withhold from Final Payment to the Contractor sufficient funds to insure
the payment of the claims. The funds shall not be withheld longer than ninety days from the date of Final
Settlement unless a legal action is started within that time to enforce payment of the claims.
14.10.4 At the end of ninety days, or any time before, if the person filing the claim acknowledges receipt of
payment for the claim, or otherwise releases the claim in writing, the Town shall pay the Contractor the
monies not subject to suit or lis pendens notices.
14.10.5 Monies that are the subject of a suit will be withheld until a judgment is rendered in the suit.
Article 15--CONTRACT TERMINATION
15.1 Town's Right to Terminate Contract for Convenience
15.1.1 The Town shall, at any time, have the right to terminate the Contract, for convenience, upon giving
written notice to the Contractor. The Contractor shall be entitled to the full amount of the approved estimate
for the Work satisfactorily completed under the Contract up to the time of such termination, including the
retained percentage. The Town shall reimburse the Contractor for such expenditures as, in the judgment
of the Project Manager, are not otherwise compensated for, together with the cost of moving to and from
the Project and a reasonable profit on the Work deleted by reason of the annulment of the Contract, in order
that an equitable settlement is made with the Contractor.
15.2 Town's Right to Terminate Contract for Default
86
31
15.2.1 The Project Manager, with the approval of the Purchasing and Contracts Manager and acting on
behalf of the Town, may serve notice upon the Contractor and its Surety of the intention to terminate the
Contract if the performance of the Work set forth under the Contract is unnecessarily or unreasonably
delayed by the Contractor, or if any of the provisions of the Contract are being violated by the Contractor
or its Subcontractors. The Contract is terminated unless, in the opinion of the Project Manager, the
Contractor corrects the violation within five days after the notice is served. In the event of such termination,
the Project Manager, acting on behalf of the Town, shall immediately serve notice of the termination and
the Surety's right to complete the Contract upon the Surety and the Contractor. The Surety shall have the
right to take over and perform the Work called for in the Contract. The Surety is then bound by all the
provisions of the Contract. If the Surety does not commence performance of the Work within ten days from
the date of the notice, the Town may take over the Project and, without prejudice to any other remedies,
complete the Project and the Contractor and its Surety are liable to the Town for any excess costs incurred
by the Town.
15.3 Contractor's Right to Terminate Contract
15.3.1 The Contractor may terminate the Contract if the Work is stopped for a period of three months
under any order of any court or other public authority through no act or fault of the Contractor or of anyone
employed by it.
The Contractor may suspend Work if Town fails to make payments at the times provided in the Contract
and the Contractor has given the Town written notice seven days before suspending Work. The Contractor
may terminate the Contract, at its option, if the Town continues to be in default thirty days after the date of
the written notice. Failure by the Town to make payments at the times provided is a bar to any claim by the
Town against the Contractor for delay in completion of the Project if the Contractor suspended Work for
that reason.
If the Contractor terminates the Contract, it may recover the price of all Work done and materials provided
and all damages sustained.
Article 16--EQUAL OPPORTUNITY
16.1 General: During the performance of the Contract, the Contractor agrees as follows:
16.1.1 The Contractor shall not discriminate against any employee or applicant for employment because
of race, color, age, disability, religion, sex, sexual orientation, gender identity or expression, national origin,
or as otherwise prohibited by law.
16.1.2 The Contractor shall ensure that all Subcontractors shall not discriminate against any employee or
applicant for employment because of race, color, age, disability, religion, sex, sexual orientation, gender
identity or expression, national origin, or as otherwise prohibited by law.
Article 17--AUDIT
17.1 Records and Reports
17.1.1 The Contractor shall keep and preserve full and detailed accounts relating to the Contract for a
period of three years from the date of final payment under the Contract in which the Work is completed.
17.1.2 The Subcontractor shall keep and preserve full and detailed accounts relating to the Contract for a
period of three years from the date of final payment under the subcontract.
17.2 Access
87
32
17.2.1 The Contractor shall permit the Town and the Town's accountants to have access as stated in
Article 13.3 and to the records kept per Article 17.1 for the purpose of making such financial audits, or
verifications as the Town deems necessary or appropriate concerning the Contractor's performance under
the Contract.
Article 18--MISCELLANEOUS
18.1 Reservation of Right to Bar Persons from the Work and Site: The Town reserves the right to
bar any person, including employees of the Contractor and Subcontractors, from the Town's Work site.
This shall not be treated as a request for the employee's termination but a request that the employee not
be assigned to work on the Town Work site. No increase in contract time or price is authorized.
18.2 Provisions Construed as to Fair Meaning: The provisions of the Contract shall be construed as
to their fair meaning, and not for or against any party based upon any attributes to such party of the source
of the language in question.
18.3 Headings for Convenience: All headings, captions and titles are for convenience and reference
only and of no meaning in the interpretation or effect of the Contract.
18.4 No Implied Representations: No representations, agreements, covenants, warranties, or
certifications, express or implied, exist as between the parties, except as specifically set forth in the
Contract.
18.5 Financial Obligations of Town: All financial obligations of the Town under the Contract are
contingent upon appropriation, budgeting, and availability of specific funds to discharge such obligations.
Nothing in the Contract shall be deemed a pledge of the Town's credit, or a payment guarantee by the
Town to the Contractor.
18.6 Assignment/transference: The Contractor may not assign or transfer any interest in the Contract,
including any money due or to become due, without the prior written consent of the Town.
18.7 Amendments: The parties shall only amend the Contract in writing with the proper official
signatures and, if required elsewhere in this Contract, on the proper forms.
18.8 Waiver: No waiver of a breach or default under the Contract is a waiver of any other or subsequent
breach or default.
18.9 Governing Law: The Contract is governed and to be construed according to the laws of the State
of Colorado. Venue and jurisdiction for any court action filed regarding this agreement shall be in either
Larimer County or the United States District Court for Colorado.
18.10 Binding Contract: The Contract is binding upon the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
88
PUBLIC WORKS Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: Jon Landkamer, Facilities Manager
Greg Muhonen, Public Works Director
Date: October 8, 2019
RE: Contract for 2019 Moraine Restroom Remodel with G2 Construction, LLC
for $126,030, Budgeted
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Public Works Facilities staff seeks Town Board approval of the construction contract
with G2 Construction, LLC for the remodeling of the public restroom located at 185
Moraine Avenue.
Present Situation:
The general condition of the interior of this restroom has deteriorated over its 45-year
existence. The plumbing fixtures are not water conserving, and have created issues
with leaks, over time, that have damaged the wall and wall tile in several places. The
light fixtures are old, damaged and not energy efficient.
Proposal: Replace all interior fixtures and finishes in both restrooms, with energy
efficient light fixtures and water conserving plumbing fixtures. Reconfigure the stalls to
create space large enough to accommodate persons with disabilities, and meet ADA
guidelines. Replace stalls with a durable product that will stand up to heavy use and
frequent cleaning. Replace unit heaters and update exhaust system to improve energy
efficiency and room comfort.
Advantages:
Improved guest experience in this restroom.
Accessibility for persons with disabilities and compliance with ADA regulations.
Reduced energy and water consumption.
Disadvantages:
Constructing this project leaves other deferred maintenance needs unfunded.
31
89
Action Recommended:
Staff recommends approval of the attached construction contract in the amount of of
$126,030.00, and authorizing PW Facilities staff to spend up to a total of $142,100 if
needed to address unanticipated conditions encountered during construction.
Finance/Resource Impact:
This projected was originally budgeted for $86,100 ($70,100 for construction and
$16,000 for design). The additional $56,000 will be funded with savings from the Town
Hall PD Roof Restoration project reclassified into capital account number 101-1700-
417.32-22.
Level of Public Interest
Low public interest.
Sample Motion:
I move for the approval/denial of the Construction Contract with G2 Construction in the
amount of $126,030, and authorization of PW Facilities staff to spend up to $142,100 if
needed for construction contingencies.
Attachments:
Link-Construction Contract
Link-General Conditions
32
90
Agreement for Construction Contract--Page 1 of 4
TOWN OF ESTES PARK, COLORADO
CONSTRUCTION CONTRACT
Moraine Restroom Remodel 2019
BID # ITB-MV-PW-012
THIS CONTRACT is made at the Town of Estes Park, Colorado, by and between the Town of Estes Park,
Colorado (Town), a municipal corporation, and G2 Construction LLC (Contractor), a Colorado limited
liability company, whose address is 5805 Mangrove Ct., Loveland, CO 80538.
In consideration of these mutual covenants and conditions, the Town and Contractor agree as follows:
SCOPE OF WORK. The Contractor shall execute the entire Work described in the Contract. It includes,
but is not limited to:
• Demolition of existing plumbing fixtures and interior finishes in the area of the remodel, as
detailed in the Construction Documents (CD’s)
• Construction of new plumbing fixtures and interior finishes, as detailed in the CD’s
• Work must be compliant with ADA code requirements as specified in the construction documents
• Removal and proper disposal of all trash and debris associated with the project
• Electrical available on site
• Contractor will obtain all required permits
• Building will be closed during construction and construction scheduling will need to be
communicated with staff
CONTRACT DOCUMENTS. The Contract incorporates the following Contract Documents. In resolving
inconsistencies among two or more of the Contract Documents, precedence will be given in the same order
as enumerated.
LIST OF CONTRACT DOCUMENTS.
The Contract Documents, except for Modifications issued after execution of this Agreement, are:
1. Change Orders;
2. Construction Contract;
3. The following addenda, if any:
Number 1 Date 9/12/2019 Page(s) 2
4. The following Special Conditions of the Contract:
NONE
5. General Conditions;
6. The following Technical Specifications:
NONE
7. The following Drawings:
Number 2 Title Moraine Public Restrooms Date 7/24/2019
8. Notice to Proceed;
9. Notice of Award;
10. Invitation to Bid;
11. Bid Bond;
12. Proposal;
13. Information and Instructions to Bidders;
14. Performance Bond and Payment Bond;
91
Agreement for Construction Contract--Page 2 of 4
15. Insurance Certificates; and
16. Work Schedule.
CONTRACT PRICE. The Town shall pay the Contractor for performing the Work and the completion of the
Project according to the Contract, subject to change orders as approved in writing by the Town, under the
guidelines in the General Conditions. The Town will pay the base sum of 126,030 DOLLARS (Contract
Price), to the Contractor, subject to full and satisfactory performance of the terms and conditions of the
Contract. The Town has appropriated sufficient money for this work.
COMPLETION OF WORK. The Contractor must begin work covered by the Contract within 30 work days,
and must complete work: [Select one]
___ within [Type number of calendar days to complete work, then press f11 to proceed]calendar
days from and including the date of Notice to Proceed, according to the General Conditions.
_X_ by March 31, 2020.
LIQUIDATED DAMAGES. If the Contractor fails to substantially complete the Work within the time period
described above, or within such other construction time if modified by a change order, the Town may
permit the Contractor to proceed, and in such case, may deduct the sum of $100 for each calendar day that
the Work shall remain uncompleted from monies due or that may become due the Contractor. This sum is
not a penalty but is the cost of field and office engineering, inspecting, interest on financing and liquidated
damages.
The parties agree that, under all of the circumstances, the daily basis and the amount set for liquidated
damages is a reasonable and equitable estimate of all the Town's actual damages for delay. The Town
expends additional personnel effort in administrating the Contract or portions of it that are not completed
on time, and such efforts and the costs thereof are impossible to accurately compute. In addition, some, if
not all, citizens of Estes Park incur personal inconvenience and lose confidence in their government as a
result of public projects or parts of them not being completed on time, and the impact and damages,
certainly serious in monetary as well as other terms are impossible to measure.
SERVICE OF NOTICES. Notices to the Town are given if sent by registered or certified mail, postage
prepaid, to the following address:
TOWN OF ESTES PARK
Public Works, Facilities Division
170 MacGregor Avenue
Estes Park, CO 80517
INSURANCE PROVISIONS. The Contractor must not begin any work until the Contractor obtains, at the
Contractor's own expense, all required insurance as specified in the General Conditions. Such insurance
must have the approval of the Town of Estes Park as to limits, form and amount.
RESPONSIBILITY FOR DAMAGE CLAIMS. The Contractor shall indemnify, save harmless, and defend
the Town, its officers and employees, from and in all suits, actions or claims of any character brought
because of: any injuries or damage received or sustained by any person, p ersons or property because of
operations for the Town under the Contract; the Contractor's failure to comply with the provisions of the
Contract; the Contractor's neglect of materials while constructing the Work; because of any act or omission,
neglect or misconduct of the Contractor; because of any claims or amounts recovered from any
infringements of patent, trademark, or copyright, unless the design, device, materials or process involved
are specifically required by Contract; from any claims or amount ar ising or recovered under the "Workers'
Compensation Act," by reason of the Contractor's failure to comply with the act; pollution or environmental
liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. The Town
may retain so much of the money due the Contractor under the Contract, as the Town considers necessary
for such purpose, for the Town's use. If no money is due, the Contractor's Surety may be held until such
suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be
withheld when the Contractor produces satisfactory evidence that the Contractor and the Town are
92
Agreement for Construction Contract--Page 3 of 4
adequately protected by public liability and property damage insurance.
The Contractor also agrees to pay the Town all expenses incurred to enforce this "Responsibility for
Damage Claim" agreement and if the Contractor's insurer fails to provide or pay for the defense of the Town
of Estes Park, its officers and employees, as additional insureds, the Co ntractor agrees to pay for the cost
of that defense.
Nothing in the INSURANCE PROVISIONS of the General Conditions shall limit the Contractor's
responsibility for payment of claims, liabilities, damages, fines, penalties, and costs resulting from its
performance or nonperformance under the Contract.
STATUS OF CONTRACTOR. The Contractor is performing all work under the Contract as an independent
contractor and not as an agent or employee of the Town. No employee or official of the Town will supervise
the Contractor nor will the Contractor exercise supervision over any emp loyee or official of the Town. The
Contractor shall not represent that it is an employee or agent of the Town in any capacity. The Contractor
and its employees are not entitled to Town Workers' Compensation benefits and are obligated to
pay federal and state income tax on money earned pursuant to the Contract. This is not an exclusive
contract.
THIRD PARTY BENEFICIARIES. None of the terms or conditions in the Contract shall give or allow any
claim, benefit, or right of action by any third person not a party to the Contract. Any person except the
Town or the Contractor receiving services or benefits under the Contract shall be only an incidental
beneficiary.
INTEGRATION. The Contract is an integration of the entire understanding of the parties with respect to
the matters set forth in it, and supersedes prior negotiations, written or oral representations and
agreements.
DEFINITIONS. The Definitions in the General Conditions apply to the entire Contract unless modified within
a Contract Document.
EXECUTED this _____ day of _____________, 2019.
TOWN OF ESTES PARK
Town Representative
Printed Name: Todd Jirsa
Position: Mayor
93
Agreement for Construction Contract--Page 4 of 4
CONTRACTOR
By:
Title:
State of )
) ss:
County of )
The foregoing instrument was acknowledged before me by ,
(Name of party signing)
as of ,
(Title of party signing) (Name of corporation)
a corporation, on behalf of the corporation, this
(State of incorporation)
day of , 2019.
Witness my hand and official Seal.
My Commission expires .
Notary Public
94
1
TOWN OF ESTES PARK
CONSTRUCTION CONTRACT GENERAL CONDITIONS
SCOPE: Since the General Conditions are general, some conditions may not apply to a particular
Project.
Article 1--DEFINITIONS AND ABBREVIATIONS
1.1 Definitions: Whenever used in the Bidding Documents and Contract Documents, the following
terms shall have the following meanings, applicable to both the singular and plural:
1.1.1 Addenda: Written changes to the Bidding Documents issued at least two days before the Opening
of Bids which modify or interpret the Contract or changes the date set for the Opening of Bids.
1.1.2 Alternate Bid: An Alternate Bid is an amount stated in the Bid added to or deducted from the base
amount of the Bid when the Town accepts a corresponding change in project scope, materials or method
of construction described in the Contract.
1.1.3 Bid: The proposal the Bidder submits on the prescribed Bid Forms stating the prices for the Work
to be performed.
1.1.4 Bid Forms: The Bid Proposal, Bid Bond, Bid Schedule, Bidder's Qualifications and Data, Bidder's
Officials Data, Non-Collusion Affidavit of Prime Bidder, and Subcontractors and Related Data.
1.1.5 Bidder: The person, partnership, or corporation submitting a Proposal for the perform ance of the
Work covered by the Contract.
1.1.6 Bidding Documents: The Invitation to Bid, Bid Forms, Information and Instructions to Bidders,
Specifications, Drawings, Sample Forms, Special and General Conditions and Addenda (if any).
1.1.7 Bonds: Bid Bonds, Performance, and Labor and Material Payment Bonds or other instruments of
security, furnished by the Contractor and its Surety according to the Contract.
1.1.8 Calendar Days: Includes all days in a month including weekends and holidays.
1.1.9 Change Order: A written modification of the Contract, issued after award to the Contractor,
authorizing an addition, deletion or revision in the Work within the general scope of the Contract or
authorizing an adjustment in the Contract Price or Contract Time, mutually agreed upon between the Town
and the Contractor.
1.1.10 Town: The Town of Estes Park, in the State of Colorado, acting by and through its Mayor, Town
Board of Trustees, Town Administrator, or other authorized representative.
1.1.11 Completion Date: The date the Contract specifies the Work is to be completed.
1.1.12 Contract: The Construction Contract consisting of the Agreement for a Construction Contract and
the incorporated Contract Documents.
1.1.13 Contract Coordinator: The authorized representative of the Town designated to act for the Town
in processing the Award of Contracts, maintaining centralized official Contract documentation, providing
administrative liaison/coordination, legal liaison/coordination via Town Attorney , and processing of Contract
Payment authorizations as approved by the Project Manager. The Project Manager may also be the
designated Contract Coordinator.
95
2
1.1.14 Contract Documents: All the documents expressly incorporated into the Contract by the
Agreement for Construction Contract, including but not limited to Addenda, Bid Forms, Change Orders,
Town Project Final Acceptance, Drawings, General Conditions, Information and Instruction to Bidders,
Insurance Certificates, Invitation to Bid, Notice of Award, Notice of Construction Acceptance, Notice to
Proceed, Notice of Substantial Completion, Performance and Labor and Material Payment Bonds, Special
Conditions, Supplemental Drawings and Schedules, and Technical Specifications.
1.1.15 Contract Price: The total monies payable to the Contractor under the terms and conditions of the
Contract.
1.1.16 Contract Time: The number of working days stated in the Contract for the completion of the
Project.
1.1.17 Contractor: The person, company, firm or corporation contracting with the Town to construct,
erect, alter, install or repair any work or construction project.
1.1.18 Drawings: The part of the Contract prepared or approved by the Project Manager showing the
characteristics and scope of the Work to be performed.
1.1.19 Date of Contract: The execution date in the Agreement for a Construction Contract.
1.1.20 Day: A calendar day of twenty-four hours each.
1.1.21 Field Order: A written order directing a change in the Project issued by the Proje ct Manager to
the Contractor during construction.
1.1.22 Inspector: The Town's authorized representative assigned to make detailed inspection of the Work
performed by the Contractor.
1.1.23 Notice of Award: The written notice of the acceptance of the Bid from the Town to the successful
Bidder.
1.1.24 Notice of Construction Acceptance: The written acknowledgment that construction is complete
which starts the warranty period.
1.1.25 Notice of Final Acceptance: The written acceptance of Work performed under the Contract,
following satisfactory conclusion of the warranty period.
1.1.26 Notice to Proceed: The written notice by the Town to the Contractor authorizing it to proceed with
the Work which establishes the Contract commencement and Contract Coordinator.
1.1.27 Notice of Substantial Completion: The written notice of the date, as certified by the Project
Manager, when the Project or a specified part is sufficiently completed, according to the Contract, so the
Project or specified part can be used for the intended purposes.
1.1.28 Owner: The Town; see 1.1.9.
1.1.29 Project: The undertaking to be performed as provided in the Contract.
1.1.30 Project Manager: The authorized representative of the Town, known as the Project Man ager,
assigned to the Project to ensure that all Work is performed according to the terms and conditions of the
Contract. Also see Article 10, "Project Manager's Responsibilities."
1.1.31 Shop Drawings: All Drawings, diagrams, illustrations, brochures, schedules, and other data
prepared by the Contractor, a Subcontractor, manufacturer, Supplier or distributor which illustrate how
specific portions of the Work will be fabricated or installed.
96
3
1.1.32 Special Conditions: Additions to the General Conditions containing instructions and conditions
peculiar to an individual Project.
1.1.33 Specifications: A part of the Contract Documents consisting of written technical description of
materials, equipment, construction systems, standards, and workmanship.
1.1.34 Subcontractor: Any person, company, firm or corporation, having a subcontract with the
Contractor to furnish and perform on-site labor, with or without furnishing materials for the project.
1.1.35 Supplier: Any person or organization who supplies materials or equipment for the Work, including
that fabricated to a special design, but who does not perform labor at the site.
1.1.36 Surety: The entity which is bound with and for the Contractor for the Performance of the Work and
for the Labor and Material Bond.
1.1.37 Unit Price: An amount stated in the Bid as a price per unit of measurement for materials or services
as described in the Contract.
1.1.38 Work: The construction and services required by the Contract, whether completed or partially
completed, including all other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may be the whole or a part of the Project.
1.1.39 Work Days: Includes all days in the month the Contractor is permitted to work; excludes weekends
and holidays.
1.2 Abbreviations: When the following abbreviations appear in the documents, they are defined as
follows:
AASHTO American Association of State Highway and Transportation Officials
ACI American Concrete Institute
ADA Americans with Disabilities Act
AISC American Institute of Steel Construction
ANSI American National Standards Institute
ASA American Standards Association
ASCE American Society of Civil Engineers
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
AWS American Welding Society
AWWA American Water Works Association
CDOT Colorado Department of Transportation
EPA Environmental Protection Agency
MUTCD Manual on Uniform Traffic Control Devices
97
4
OSHA Occupational Safety & Health Administration
WW-P Federal Specifications Prefix
Article 2--PRELIMINARY MATTERS
2.1 Notice to Proceed
2.1.1 Following the execution of the Contract by the Parties, the Project Manager will give the Contractor
written Notice to Proceed with the Work. The Contractor shall begin and continue the Work regularly and
without interruption (unless otherwise directed in writing by the Project Manager) with the dilig ence and
efficacy necessary to complete the Work within the time stated in the Contract.
2.2 Contractor's Understanding
2.2.1 The Contractor agrees that, by careful examination, it is satisfied as to the nature and location of
the Work, the conformation of the ground, the character, quality, and quantity of the materials to be
encountered, the character of equipment and facilities needed before beginning and for the Project, the
general and local conditions, and all other matters, which can in any way affect the Work under the Contract.
No oral agreement with any officer, agent or employee of the Town either before or after the execution of
the Contract shall affect or change any of the terms or obligations contained in the Contract.
2.3 Contractor's Warranty
2.3.1 The Contractor warrants that it has the knowledge, ability, experience, and expertise to perform the
Work competently. The Contractor warrants the capacity of the Contractor's construction plant, personnel,
and its ability to complete the Project within the allotted time.
2.4 Contractor's License and Permits
2.4.1 The Contractor will obtain all licenses and permits required to do the Work. Whenever necessary,
the Contractor will have a Building Contractor's License with the Town by the time of Notice of Award. It
will have all permits required by the Town, as well as those required by County, State and Federal agencies.
Subcontractors shall also have a Town of Estes Park Building Contractor's License and the proper permits.
2.5 Schedules, Reports, and Records
2.5.1 Before beginning construction, the Contractor shall submit to the Project Manager a Construction
Progress Schedule, on a form approved by the Project Manager, showing all Work the Contractor and all
Subcontractors will perform. The Project Manager may require the Contractor to substitute a Critical Path
Method schedule (CPM), or bar graph type schedule. The Special Conditions will state when a CPM
network schedule is required.
2.5.2 The schedule shall be in enough detail for the Project Manager to readily determine the Work to be
performed each day. When requested by the Project Manager, the Contractor shall update the schedule.
2.5.3 Before beginning construction, the Contractor shall give the Project Manager the dates it expects
to submit Shop Drawings, manufacturers' details, catalog cuts or other required special detail Drawings and
also the dates of beginning manufacture, testing, delivery and installation of special equipment and
materials.
2.6 Contractor's Address
2.6.1 The address in the Bid Proposal is designated as the place to which all communications to the
Contractor will be delivered or mailed. The delivery at the listed address, in person or by certified mail, of
98
5
any notice, letter or other communication to the Contractor, is adequate service upon the Contractor, and
the date of the service is the date of delivery.
2.7 Notification of Utility Owners
2.7.1 The Contractor shall cooperate with Utility Owners to mitigate damage whenever the Contractor's
work affects their utilities.
2.7.2 The Contractor shall not excavate without first notifying the owners, operators or association of
owners and operators having underground facilities in the area of such excavation . If the Contractor is
digging deep or even just a few inches, the Contractor must contact Colorado 811 to have underground
utilities marked, by calling 811. iDig811 is designed for residential and professional excavators to easily
and quickly submit a utility request online.
2.7.3 Contractor shall give notice of the commencement, extent, and duration of the excavation work at
least two business days before beginning Work.
2.7.4 If the Project affects fences, landscaping, mailboxes, driveways and other privately-owned
improvements, the Contractor shall notify the affected property owners or occupants in writing at least two
business days before beginning Work. The Contractor shall cooperate with the owners or occupants to
reduce inconvenience where reasonably possible.
2.8 Department of Revenue Forms
2.8.1 It is the responsibility of the Contractor to apply for a Colorado State Sales and Use Tax Exemption
Certificate from the State Dept. of Revenue and to use it when purchasing materials or supplies in
connection with the Project.
2.8.2 The Town's Tax Exemption Numbers are to be used only when obtaining the Contractor's own Tax
Exemption Certificate for each specific Town project:
a. Federal Tax Exemption Number: 84-6000661
b. State of Colorado Tax Exemption Number: 98-00492
Article 3--DRAWINGS AND SPECIFICATIONS
3.1 Intent of Drawings and Specifications
3.1.1 In the Drawings and Specifications, the Town intends that the Contractor furnish all
superintendence, labor, materials, tools, equipment, supplies, machinery and transportation necessary for
the proper execution of the Work unless specifically noted otherwise. The Contractor shall do all the Work
shown on the Drawings and described in the Specifications and all incidental Work reasonably ne cessary
to complete the Project in a substantial and acceptable manner, and to complete fully the Work, ready for
use, by the Town.
3.1.2 The Contractor shall complete all Work according to the Specifications and Plans, and in
compliance with applicable laws of Colorado and ordinances of the Town.
3.1.3 In interpreting the Contract, words describing materials or work having a well -known technical or
trade meaning, unless otherwise specifically defined, will be construed according to well -known meanings
as recognized by engineers, architects, and the trades.
3.1.4 When the Contract refers to a provision of the General Conditions or another Contract Document,
the Contract means the provision as amended or supplemented by other provisions of the Contract.
99
6
3.1.5 When the Specifications state the words "as directed," or "as required," or "as permitted," or words
of like meaning, it is understood that the direction, requirement or permission of the Project Manager is
intended. Similarly, the words approved, acceptable or satisfactory shall refer to approval by the Project
Manager.
3.1.6 The Contract Documents are intended to be complementary, and Work called for on any Drawing
and not mentioned in the Specifications, or Work described in the Specifications and not shown on any
Drawing, is included under the Contract as if set forth in both the Specifications and Drawings.
3.2 Copies of Drawings and Specifications Furnished
3.2.1 The Project Manager will furnish to the Contractor, free of charge, four copies of Drawings and
Specifications of the Work. All additional copies will be furnished at reproduction costs.
3.3 Discrepancies in Drawings
3.3.1 Contractor shall immediately report any discrepancies found between the Drawings and
Specifications and site conditions or any errors or omissions in the Drawings or Specifications to the Project
Manager, who shall promptly correct such error or omission in writing. Any affected Work done by the
Contractor after discovery of such discrepancies, errors or o missions and affected by those is done at the
Contractor's risk. In all cases, the Project Manager shall decide the intent of the Drawings and
Specifications. The decision is final.
3.4 Dimensions
3.4.1 Figured dimensions shall govern over scaled dimensions.
3.5 Drawings and Specifications at Job Site
3.5.1 The Contractor shall keep one complete set of all Drawings and Specifications at the job site,
available to the Project Manager or the Manager's representative at all times.
3.6 Shop Drawings
3.6.1 The Contractor shall provide Shop Drawings, settings, schedules, and such other Drawings as may
be necessary for the prosecution of the Work in the shop and in the field as required by the Drawings,
Specifications or Project Manager's instructions.
3.6.2 The Contractor shall submit for approval electronic copies of all Shop Drawings and descriptive
data as applicable showing all features not fully detailed on the Contract Plans but essential for a completely
coordinated installation.
3.6.3 The Town's approval of Shop Drawings indicates only that the type and kind of equipment, general
method of construction or detailing are satisfactory, but the Contractor may not construe the approval as a
complete check. The Contractor has the responsibility for incorporating into the Work satisfactory materials
and equipment meeting the requirements of the Contract Plans and Specifications, the proper dimensions,
and the detailing of connections.
3.6.4 The review of Shop Drawings is only to check for compliance with the design concept of the Project
and general compliance with the Contract Documents. Approval does not indicate the waiver of any
contract requirement. Changes in the Work are authorized only by separate written Change Order.
100
7
3.7 Record Documents
3.7.1 The Contractor shall keep one record copy of all Addenda, Change Orders, Drawings, Field Orders,
Modifications, and Shop Drawings and Specifications in good order. The Contractor shall record any
changes made during construction on the record copies. The Contractor shall make a set of "Record
Drawings" by marking this set of prints with all changes from the original Drawings as bid, including all
Change Orders, alignment changes, depth changes of underground pipes and utilities, and all ot her items
that are not the same as originally drawn. The Contractor shall keep the Record Drawings up to date as
the Project progresses. The Project Manager may require, as a condition of the approval of the monthly
progress payment, periodic inspection of the Record Drawings. The Contractor will deliver the Record
Drawings to the Project Manager upon completion of the Project before Final Payment.
3.8 Differing Site Conditions
3.8.1 The Contractor shall promptly, before such conditions are further dis turbed, notify the Project
Manager in writing of:
3.8.1.1 Subsurface or latent physical conditions at the job site differing materially from those indicated in
the Contract; or
3.8.1.2 Unknown physical conditions at the job site, of an unusual nature, differing materially from those
ordinarily encountered and generally recognized as inherent in Work of the character provided for in the
Contract.
3.8.2 Upon receipt of written notification from the Contractor of alleged differing site conditions, the
Project Manager shall promptly investigate the conditions and if it finds the conditions materially differ, and
so cause an increase or decrease in the Contractor's cost of or the time required for performance of any
part of the Work under the Contract, an equitable adjustment will be made and the Contract modified in
writing as provided for in Article 11 of these General Conditions.
3.8.3 No claim will be allowed under this Article unless the Contractor has given the written notice
required in Article 3.8.1.
3.8.4 No claim will be allowed under this Article if Final Payment has been made.
3.9 Surveys
3.9.1 The Project Manager has the option to develop and arrange for detail surveys through a separate
contract if deemed desirable or necessary and if specifically noted as such in the Special Conditions,
otherwise the Contractor shall provide all survey required to construct the Project according to the Project
documents. The Contractor assumes full responsibility for construction according to the pro posed lines
and grades.
3.9.2 The Contractor shall carefully protect all monuments and property markers from disturbance or
damage.
Article 4--AVAILABILITY OF RIGHT-OF-WAY
4.1 Acquisition of Right-of-Way
4.1.1 Before issuance of Notice to Proceed, the Town shall obtain all land and right-of-way necessary for
carrying out and completion of the Work to be performed pursuant to the Contract, unless otherwise
mutually agreed.
101
8
4.1.2 The Town shall provide to the Contractor information which del ineates and describes the lands
owned and rights-of-way acquired, when necessary. The Contractor shall confine its operations within the
areas designated by the Project Manager.
4.2 Access to Right-of-Way
4.2.1 The Town will provide right of access to all places necessary for the performance of the Work.
Nothing contained in the Contract shall give the Contractor exclusive occupancy of the area provided by
the Town. The Town, other Contractors of the Town and utility companies may enter upon or occupy
portions of the land furnished by the Town for any purpose, but without unreasonably interfering with the
completion of the Project. Joint occupancy or use of the territory shall not be the basis of any claim for delay
or damages.
4.3 State Highway Right-of-Way
4.3.1 If any part of the Project is within the right-of-way of a roadway under the jurisdiction of the Colorado
Division of Transportation (CDOT) the Town shall obtain the necessary permits from CDOT to perform such
Work. The Contractor shall conform to all the requirements and restrictions indicated on the permit. The
Contractor shall restore the area to its original condition, including reseeding if necessary, at the completion
of the Project.
4.4 Temporary Storage Facilities
4.4.1 The Contractor may secure at its own expense and without liability to the Town, use of any
additional land that the Contractor may desire for temporary construction activities, and facilities, or storage
of materials.
Article 5--BONDS AND INSURANCE
5.1 Performance Bond and Labor and Material Payment Bond
5.1.1 The Contractor shall, within ten days after receipt of the Notice of Award, and before the
commencement of any operations hereunder execute the Contract and furnish the Town with separate
Performance, and Labor and Material Payment Bonds each in a penal sum equal to the amount of the
Contract Price, conditioned upon the Contractor's performance of all undertakings, covenants, terms,
conditions, and agreements of the Contract, and upon the Contractor's prompt payment to all persons
supplying labor and materials in the prosecution of the Work provided by the Contract. The Contractor and
a corporate Bonding company, licensed to transact such business in the State of Colorado and acceptable
to the Town, shall execute the Bonds. The Contractor bears the expense of these Bonds. If at any time
the Surety on such Bonds becomes irresponsible or loses its right to do business in the State of Colorado,
the Town may require another Surety, which the Contractor shall furnish within ten days after receipt of
written notice to do so. Evidence of authority of an attorney-in-fact acting for the corporate Surety shall be
provided in the form of a certificate as to its power of attorney and to the effect that it is not terminated and
remains in full force and effect on the date of the Bonds. The form of the Bonds is subject to the Town's
approval.
5.2 Insurance
5.2.1 The insurance requirements contained in the Contract shall not limit or redefine the obligations of
the Contractor as provided elsewhere in the Contract.
5.2.2 Only insurance companies with authority to issue policies in Colorado may provide insurance
coverage under the Contract.
102
9
5.3 Insurance Requirements
5.3.1 The Contractor shall purchase and maintain, for the full period of the Contract, including any
warranty period, at the Contractor's or Subcontractor's sole expense, insurance policies providing coverage
as follows:
5.3.1.1 Comprehensive Auto Liability: C omprehensive form, including owned, hired and non-owned
automobiles. The limits of coverage shall be at least $1,000,000.00 per occurrence.
5.3.1.2 Comprehensive General Liability: Commercial general liability insurance covering personal injury,
bodily injury and property damage; Explosion & Collapse; Underground Hazard; Products/Completed
Operations; Contractual Liability; Broad Form Property Damage; and Town's & Contractor's Protective. The
limits shall be at least $1,000,000/$1,000,000 if the Contract Price is $50,000 or less and
$1,000,000/$2,000,000 if the Contract Price is over $50,000. All policies shall be of the occurrence form.
Any deviation from the occurrence form shall be approved by the Town of Estes Park Risk Manager. A
copy of each policy and endorsement must be submitted to the Risk Manager with each certificate of
insurance when a deviation is requested.
5.3.1.3 Workers' Compensation and Employer's Liability: as statutorily required for persons performing
work under the Contract. Any Subcontractor hired by the Contractor shall also carry Workers'
Compensation and Employers' Liability coverage. Employer's liability insurance shall have a minimum
coverage of $1,000,000 per occurrence.
5.3.1.4 Builder's Risk: a Builder's Risk Policy is required in an amount not less than the Contract Price.
The Contractor shall cause its insurance provider to name the Town as an additional insured.
5.3.1.5 Installation Floater: an Installation Floater Policy is required for contracts involving the ins tallation
of unique or customized equipment and for contracts involving installations that in the judgment of the Town
threaten to damage existing structures. The Contractor shall cause its insurance provider to name the
Town as an additional insured.
5.3.2 Additional Insured Clause: The insurance coverage required for the performance of the Contract
must be endorsed to name the Town of Estes Park, Colorado, a municipal corporation, its mayor and
trustees, officers, agents, employees and volunteers, as a dditional insured with respect to the activities
performed under the Contract.
5.3.3 Primary Insurance Endorsement: Pursuant to an endorsement submitted to and approved by
the Town, all coverage must specifically state the insurance coverage for the Project. In no event shall an
additional endorsement in the form of GL20.09 (1973-01 ed.) or any similar form be submitted or accepted.
5.3.4 Certificate of Insurance: As evidence of the insurance coverage required by the Contract, the
Contractor shall furnish a certificate of insurance to the Contract Coordinator. The certificate will specify
parties who are additional insured. If the Contractor is self-insured under the laws of the State of Colorado,
Contractor shall provide appropriate declarations of coverage.
5.3.5 Continuance of Insurance: For the term of the Contract, which includes any warranty periods,
the Contractor shall not cancel, materially change or fail to renew the insurance coverage, and agrees to
notify the Contract Coordinator of any material reduction or exhaustion of aggregate policy limits. If the
Contractor fails to purchase or maintain the insurance coverage set forth in these General Conditions, the
Town may deem such failure to be breach of this Contract.
103
10
Article 6--INDEMNIFICATION
6.1 Responsibility for Damage Claims: The Contractor shall indemnify, save harmless, and defend
the Town, its officers and employees, from and in all suits, actions or claims of any character brought
because of: any injuries or damage received or sustained by any person, persons or property because of
operations for the Town under the Contract; the Contractor's failure to comply with the provisions of the
Contract; the Contractor's neglect of materials while constructing the Work; because of any ac t or omission,
neglect or misconduct of the Contractor; because of any claims or amounts recovered from any
infringements of patent, trademark, or copyright, unless the design, device, materials or process involved
are specifically required by Contract; from any claims or amount arising or recovered under the "Workers'
Compensation Act," by reason of the Contractor's failure to comply with the act; pollution or environmental
liability; or any failure of the Contractor to comply with any other law, ordinance, order or decree. The Town
may retain so much of the money due the Contractor under the Contract, as the Town considers necessary
for such purpose, for the Town's use. If no money is due, the Contractor's Surety may be held until such
suits, actions, claims for injuries or damages have been settled. Money due the Contractor will not be
withheld when the Contractor produces satisfactory evidence that it and the Town are adequately protected
by commercial general liability and property damage insurance.
6.1.1 The Contractor also agrees to pay the Town all expenses incurred to enforce this "Responsibility
for Damage Claims" agreement and if the insurer of the Contractor fails to provide or pay for the defense
of the Town of Estes Park, its officers and employees, as additional insured, the Contractor agrees to pay
for the cost of that defense.
6.1.2 Nothing in the INSURANCE PROVISIONS shall limit the Contractor's responsibility for payment of
claims, liabilities, damages, fines, penalties, and costs resulting from its performance or nonperformance
under the Contract.
Article 7--CONTRACTOR'S RESPONSIBILITIES
7.1 Control of the Work
7.1.1 When the Contractor is not present on the Project it shall have a Superintendent or other
representative acceptable to the Town present who shall, during the absence of the Contractor, be its
representative and have immediate charge of the Project. The Superintendent or representative shall have
the Contractor's authority to act in its absence. The Superintendent shall ensure expeditious and competent
handling of the work. A superintendent experienced in construction of the type specified and who is a
permanent member of the Contractor’s organization shall be a resident at the Project throughout the
construction. The superintendent shall be fully authorized to act for the Contractor and to receive whatever
orders or notices may be given for the proper prosecution of the work. The Contractor’s field organization
shall include an experienced staff of qualified technical personnel to handle on-site engineering, planning,
and direction of all fieldwork.
7.1.2 Any person employed on the Project who fails, refuses or neglects to obey the Superintendent or
Contractor's other designated representative, shall, upon the order o f the Project Manager, be at once
removed from the Project and not again employed on any part of the Project.
7.2 General Use of Subcontractors
7.2.1 The Contractor may utilize the services of specialty Subcontractors on those parts of the Work
which, under normal contracting practices, are performed by specialty Subcontractors.
7.2.2 The Contractor shall not sublet or subcontract any portion of the Work to be done under the
Contract until approval of such action has been obtained from the Town.
104
11
7.2.3 The Contractor is fully responsible to the Town for the acts and omissions of its Subcontractors,
and of persons either directly or indirectly employed by them.
7.2.4 Nothing contained in the Contract creates any contractual relationship between any Subcontractor
and the Town.
7.2.5 The Contractor shall put appropriate provisions in all Subcontracts relative to the Work to bind
Subcontractors to the terms of the Contract insofar as applicable to the Work of Subcontractors, and to give
the Contractor the same power to terminate any Subcontractor that the Town may exercise over the
Contractor.
7.2.6 The Contractor shall make available to each proposed Subcontractor, before the execution of the
subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and,
upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the
proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors
shall similarly make copies of applicable portions of such documents available to their respective proposed
Sub-Subcontractors.
7.3 Materials and Equipment Furnished by the Contractor
7.3.1 The Contractor shall furnish and pay the cost of all of the necessary materials not furnished by the
Town, all the superintendence, labor, tools, equipment, installation, maintenance, dismantling and removal
of materials, supplies, temporary facilities, machinery and transportation. The Contractor shall perform all
the work required for the construction of all structures listed and itemized under the Bid Schedule of the Bid
in strict accordance with the plans, Specifications and requirements and any amendments thereto and
supplemental plans and Specifications hereafter approved.
7.3.2 Unless otherwise provided for in the Specifications, all workmanship, equipment, materials, and
articles incorporated in the Project are to be the best of their respective kinds, new and undamaged.
7.3.3 Materials, supplies or equipment to be incorporated into the Project shall not be purchased by the
Contractor or any Subcontractor subject to chattel mortgage or under a conditional sales contract or other
agreement by which an interest is retained by the seller.
7.3.4 The Contractor shall furnish the Project Manager, for the Manager's approval, the name of the
manufacturer of machinery and other equipment for materials the Contractor contemplates incorporating in
the Project. The Contractor shall also furnish information on capacities, efficienci es, sizes, etc., and other
information as may be required by the Project Manager. The Contractor shall submit samples for approval
when requested. Machinery, equipment, materials, and articles installed or used without the Project
Manager's approval are at the risk of subsequent rejection.
7.3.5 The Contractor shall give the Project Manager an electronic copy of all shop manuals, operating
manuals, parts lists, classifications, catalog cuts, Specifications, warranties and guarantees for all
equipment and machinery installed.
7.3.6 Consideration of a product as an "equal" by the Project Manager may require that the
manufacturer of such product furnish guarantees that extend beyond the usual product warranty
time. The refusal of a manufacturer to provide such guarantees is sufficient reason for rejecting the product.
7.4 Patents and Copyrights
7.4.1 The Contractor shall provide a suitable legal agreement with the patentee giving the Contractor the
right to use any design, device, material, or process cov ered by letters patent or copyright, in the
construction of the Project when the use has not been specified or required by the Drawings and
Specifications. The Contractor shall file a copy of this agreement with the Town, if requested. The
105
12
Contractor and the Surety shall indemnify, defend and save harmless the Town from all claims for
infringements on patented design, devices, material, process or any trademark or copyright during the
prosecution or after the completion of the Project.
7.4.2 If any design, device, material, process or product of a particular manufacturer covered by letters
patent or copyright is specified for use by the Drawings and Specifications, the Town is responsible for any
claims for infringement by reason of the use of such design , device, material, process or product of a
particular manufacturer; but the Contractor shall pay any royalties or license fees required.
7.5 Existing Utilities
7.5.1 The Town has collected and shown on the Drawings available information on the location of existing
underground, surface and overhead structures and utilities. However, the Town does not guarantee the
results of the investigations are accurate or complete. It is the Contractor's responsibility to verify all
locations of existing structures and utilities shown on the Drawings and to ascertain whether any other
structures and utilities exist.
7.5.2 The Contractor shall support, and protect from injury, existing power lines, telephone lines, water
mains, gas mains, sewers, cables, conduits, ditches, curbs, walks, pavements, driveways, and other
structures in the vicinity of the Project which are not authorized to be removed until completion of the
Project.
7.6 Coordination with Town Departments
7.6.1 The Contractor shall always coordinate its Work with the Town of Estes Park Public Works and
Utilities Departments. If it becomes necessary to close portions of any water system due to construction
operations, a minimum of 48 hours notification shall be given the Utilities Dep artment and whenever
possible one week's notice should be given. It is the Contractor's responsibility to ensure continuity of the
utilities.
7.6.2 If Town owned electrical utilities are involved, the Contractor shall coordinate its Work with the
Town of Estes Park Utilities Department. Contractors should make every effort to give the Utilities
Department one week's notice of upcoming construction involving the electric services; a minimum of 48
hours notification shall be given to the Utilities Department.
7.6.3 All electrical power and water from Town owned utilities required for the Project will be provided at
the Contractor's expense.
7.7 Laws and Ordinances
7.7.1 The Contractor shall perform all obligations under the Contract in strict compliance with all
federal, state, and municipal laws, rules, statues, charter provisions, ordinances, and regulations,
applicable to the performance of the Contractor under the Contract.
7.7.2 The Contractor shall obtain all other permits and licenses required in the prosecution of the Work.
7.7.3 IT IS UNLAWFUL AND UNETHICAL FOR ANY PERSON TO OFFER, GIVE OR AGREE TO GIVE
ANY TOWN EMPLOYEE, TOWN OFFICIAL OR FORMER TOWN EMPLOYEE, OR FOR ANY TOWN
EMPLOYEE, TOWN OFFICIAL OR FORMER TOWN EMPLOYEE TO SOLICIT, DEMAND, AC CEPT OR
AGREE TO ACCEPT FROM ANOTHER PERSON, A GRATUITY OR AN OFFER OF EMPLOYMENT IN
CONNECTION WITH ANY DECISION, APPROVAL, DISAPPROVAL, RECOMMENDATION OR
PREPARATION OF ANY PART OF A PROGRAM REQUIREMENT OR A PURCHASE REQUEST,
INFLUENCING THE CONTENT OF ANY SPECIFICATION OR PROCUREMENT STANDARD,
RENDERING OF ADVICE, INVESTIGATION, AUDITING OR IN ANY OTHER ADVISORY CAPACITY IN
ANY PROCEEDING OR APPLICATION, REQUEST FOR RULING, DETERMINATION, CLAIM OR
CONTROVERSY, OR OTHER PARTICULAR MATTER, PERTAINING TO ANY PROGRAM
106
13
REQUIREMENT OR A CONTRACT OR SUBCONTRACT, OR TO ANY SOLICITATION OR PROPOSAL
THEREFOR.
7.7.4 IT IS UNLAWFUL AND UNETHICAL FOR ANY PAYMENT, GRATUITY OR OFFER OF
EMPLOYMENT TO BE MADE BY OR ON BEHALF OF A SUBCONTRACTOR UNDER A CONTRACT TO
THE PRIME CONTRACTOR OR HIGHER TIER SUBCONTRACTOR OF ANY PERSON ASSOCIATED
THEREWITH, AS AN INDUCEMENT FOR THE AWARD OF A SUBCONTRACT OR ORDER.
7.8 Protection of Persons
7.8.1 It is a condition of the Contract, and the Contractor shall make a condition of each S ubcontract
entered into pursuant to the Contract, that the Contractor and any Subcontractor shall not require any
laborer, mechanic or other person employed in performance of the Contract to work in surroundings or
under working conditions which are unsanitary, hazardous or dangerous to health or safety. The Contractor
shall comply with all applicable safety rules and regulations adopted by the United States Department of
Labor Occupational Safety and Health Administration (OSHA), the Industrial Commission of the State of
Colorado or the Town of Estes Park, whichever is most restrictive. The Town assumes no duty to insure
that the Contractor follows the safety regulations issued by OSHA or the State of Colorado.
7.8.2 For operations involving trenching, excavation or any other underground construction, the
Contractor's attention is specially directed to and its Work shall conform to the Construction Safety and
Health Regulations, Part P Subparagraph 1926.650-653 by OSHA, latest revision.
7.8.3 The Contractor shall always, whether or not so specifically directed by the Project Manager, take
necessary precautions to ensure the protection of the public. The Contractor shall furnish, erect, and
maintain at its own expense all necessary precautions for the protection of the Work and safety of the public
through and around its construction operations.
7.9 Protection of Property
7.9.1 The Contractor shall continuously and adequately protect the Work from damage, injury or loss
arising in connection with the Contract. It shall repair or replace at its expense any such damage, injury or
loss, except such as may be directly due to error in the Contract or caused by agents or employees of the
Town. It shall provide and maintain at its expense all passageways, barricades, guard fences, lights, and
other protection facilities required by public authority or local conditions.
7.9.2 The Contractor is responsible for protection of all public and private property on and adjacent to
the site of the Work. It shall use every precaution necessary to prevent damage to curbs, sidewalks,
driveways, trees, shrubs, sod, mailboxes, fences, and other private and public improvements. It shall
protect carefully from disturbance or damage all land monuments and property markers until an authorized
agent has witnessed or otherwise referenced their locations, and shall not remove them until directed.
7.9.3 The Contractor shall carefully preserve all monuments, benchmarks, property pins, reference points,
and stakes. The Contractor shall be charged with the expense of replacement of any such items destroyed
and shall be responsible for any mistake or loss of time that may be caused. Permanent monuments or
benchmarks which must be removed or disturbed shall be protected unt il they can be properly referenced
for relocation. The Contractor shall furnish materials and assistance for the proper replacement of such
monuments or benchmarks, but actual replacement shall be done by a licensed surveyor.
7.9.4 Whenever, in the opinion of the Town, the Contractor has not taken sufficient precaution for the safety
of the public or the protection of the work to be constructed under the Contract or of adjacent structures or
property, and whenever, in the opinion of the Town, an emergency has arisen and immediate action is
considered necessary, then the Town, with or without notice to the Contractor, may provide suitable
protection by causing work to be done and material to be furnished and placed. The cost of such work and
material shall be borne by the Contractor and, if the same is not paid on presentation of the bills therefore,
such costs may be deducted from any amounts due or to become due the Contractor. The performance of
such emergency work shall not relieve the Contractor of responsibility for any damage that may occur.
107
14
7.10 Protection of Historical Sites
7.10.1 When the Contractor's excavating operations encounter remains of prehistoric people's dwelling
sites or artifacts of historical or archeological significance, the Contractor shall temporarily discontinue the
operations, and immediately advise the Project Manager. The Project Manager will contact archeological
authorities to determine the disposition of the items in question. When directed, the Contractor shall
excavate the site in such a manner as to preserve the artifacts encountered and remove them for delivery
to the custody of the proper authorities. Such excavation is considered, and paid for, as extra Work.
108
15
7.11 Responsibility to Repair
7.11.1 Should any existing property be damaged, the Contractor shall immediately notify the owner of
such property. Unless authorized in writing by the owner of the property or directed by the Project Manager,
the Contractor shall not attempt to make repairs. Written authori zation from the owner to make repairs
must be so worded as to save the Town harmless from any responsibility whatsoever relative to the
sufficiency of the repairs, and to make the Town a beneficiary of that provision. The Contractor shall give
the Project Manager a copy of the written authorization to make repairs.
7.11.2 When any direct or indirect damage or injury is done to any public or private property or utility by
or on account of any act, omission, neglect or misconduct in the execution of the Work, the Contractor shall
restore the damaged property at its own expense to a condition equal to or better than that existing before
such damage or injury.
7.11.3 The Contractor shall replace any materials and equipment lost, stolen, damaged or otherwise
rendered useless during the performance of Work on the Project.
7.12 Traffic Control
7.12.1 The Contractor shall arrange Work to disrupt traffic as little as possible. All traffic Control Devices
used shall conform to the latest edition of the Manual of Uniform Traffic Control Devices, (MUTCD). Except
as otherwise permitted, two-way traffic shall be maintained at all times in public roadways. At least 72
hours before starting any Work in Town right-of-way, the Contractor shall submit a detailed traffic control
plan for review from the Public Works Department. The approval shall establish the requirements for
closures related to the number of lanes and time of day lanes or streets may be closed. The Traffic Control
Plan (TC Plan) shall include the name of the contractor, the name and phone number of the person
responsible for the traffic control, the date for beginning and ending construction activity and hours of
operation expected. The TC Plan should show the widths of streets involved, traf fic lanes, the size and
location of the Work area with distances from the curb, distance to the nearest intersection and the type
and location of traffic control devices. No changes to the TC Plan shall be permitted without prior approval
by the Public Works Department.
7.12.2 The Contractor shall furnish and maintain all necessary signs, barricades, lights, and flaggers
necessary to control traffic and provide for safety of the public, all in compliance with the MUTCD with
subsequent revisions and additions, and to the satisfaction of the Public Works Department.
7.12.3 Whenever a police officer is necessary for traffic control, the Contractor shall hire and pay a
uniformed off-duty police officer with authority in the Town to direct traffic. The police department will
determine the rate of pay for the officers.
7.12.4 The Contractor shall make its Traffic Control plans in concurrence with the Traffic Control
requirements specifically stated in the Special Conditions.
7.13 Sanitary Regulations
7.13.1 The Contractor is responsible for providing proper health and sanitation facilities for its employees,
in compliance with any rules and regulations of the State Board of Health or any other bodies having
jurisdiction.
7.13.2 The Contractor shall always provide an abundant supply of safe drinking water for its employees
and shall give orders against the drinking of any water known to be unsafe in the vicinity of the Project.
7.13.3 At convenient places, the Contractor shall provide fly-proof outside toilets which are to be
maintained in a sanitary condition. Toilets shall not be permitted in any reservoir area and shall not be
permitted where they may pollute a water supply.
109
16
7.14 Pollution Control
7.14.1 The Contractor shall comply with all applicable Federal and State laws, orders, and regulations
concerning the control, prevention, and abatement of water pollution, air pollution, and noise pollution in all
operations pertaining to the Contract whether on right-of-way provided by the Town or elsewhere.
7.14.2 The Contractor shall use construction methods that prevent release, entrance or accidental spillage
of solid matter, contaminants, debris, and other objectionable pollutants and wastes including, but not
restricted to refuse, garbage, cement, concrete, sewage effluent, industrial waste, radioactive substances,
oil and other petroleum products, aggregate processing tailings, mineral salts, and thermal pollution. Non -
regulated solid wastes shall be disposed of by methods approved under applicable law s and regulations,
including, the Resource Conservation and Recovery Act (RCRA), Subtitle D, as administered by Colorado
and local Health Departments and the EPA. Contaminated and hazardous materials are regulated by
RCRA, Subtitles C and D. The Contractor shall notify the Colorado Department of Public Health and
Environment, local health departments, and the Estes Valley Fire Protection District if suspect materials
are encountered.
7.14.3 The Contractor shall utilize methods and devices that are reasonably available to control, prevent,
and otherwise minimize atmospheric emissions or discharges of air contaminants including dust in its
construction activities and operation of equipment.
7.14.4 The Contractor shall not emit dust into the atmosphere duri ng any operations, including but
not limited to: grading; excavating; manufacturing, handling or storing of aggregates; trenching; or cement
or pozzolans. The Contractor shall use the necessary methods and equipment to collect, deposit, and
prevent dust from its operations from damaging crops, orchards, fields or dwellings or causing a nuisance
to persons. The Contractor is liable for any damage resulting from dust.
7.14.5 The Contractor may not operate equipment and vehicles with excessive emission of exhaust gases
due to improper mechanical adjustments, or other inefficient operating conditions, until repairs or
adjustments are made.
7.14.6 Burning trash, rubbish, trees, brush or other combustible construction materials is permitted only
when the Contractor has any necessary burning permit from any authority having jurisdiction. Burning shall
be conducted in strict conformance with the permit.
7.14.7 De-watering for structure foundations or earthwork operations adjacent to or encroaching on lakes ,
streams or water courses shall be done in a manner which prevents muddy water and eroded materials
from entering the lakes, streams or water courses, by construction of intercepting ditches, bypass channels,
barriers, settling ponds or by other approved means. Excavated materials may not be deposited or stored
in or alongside lakes or water courses where they can be washed away by high water or storm runoff.
7.14.8 The Contractor may not allow waste water from aggregate processing, concrete batching or other
construction operations to enter lakes, streams, water courses or other surface waters without turbidity
control methods such as settling ponds, gravel-filter entrapment dikes, approved flocculation processes
that are not harmful to fish, recirculation systems for washing of aggregates or other approved methods.
Any waste waters discharged into surface waters shall conform to applicable discharge standards of the
Colorado Department of Public Health and Environment and the Federal Government.
7.15 Stormwater Quality
7.15.1 The Contractor shall be responsible for the preservation and protection of storm water collection
systems and other natural and developed drainage ways, which may be affected by Work done under the
Contract. Any construction activity may be required to obtain a Stormwater Discharge Permit Associated
with Construction Activity from the Colorado Department of Public Health and Environment (CDPHE). The
Colorado Department of Public Health and Environment, Water Quality Control Divisio n, can be reached at
303-692-3500 http://www.cdphe.state.co.us/wq/PermitsUnit/wqcdpmt.html ). Unless otherwise indicated,
110
17
the Contractor is responsible for obtaining this permit fr om the Colorado Department of Public Health and
the Environment.
7.15.2 The Contractor shall satisfy all environmental quality standards imposed by law and take
reasonable steps to minimize the environmental impact of the work. In compliance with applicable Town,
state and federal law:
1. The Contractor shall not pollute the water of any pond, lake, stream, ditch, or other watercourse.
2. The Contractor will implement erosion control practices and stormwater best management
practices.
3. The Contractor will comply with all appropriate groundwater discharge permits associated with
this project.
7.15.3 All permit requirements must be met throughout the warranty period and until Final Stabilization is
reached.
7.15.4 For purposes of this Contract, the Project Manager is authorized to enforce the Estes Park
Municipal Code. Any direct costs, including assessed fines, will be charged to the Contractor and
appropriate deduction will be made from the Contractor’s monthly payments.
7.15.5 This work consists of constructing, installing, maintaining, and removing when required, erosion
control measures during the life of the Contract or length of any permit, whichever is open longer, to prevent
or minimize erosion, sedimentation, and pollution of any state waters including wetlands as defined in the
Colorado Department of Transportation Standard Specifications Section 208 or 107.25, or Urban Drainage
and Flood Control District (UDFCD) Volume 3 Urban Storm Drainage Criteria Manual, or Town design
standards.
7.15.6 The Contractor shall coordinate the construction of temporary erosion control measures with the
construction of permanent erosion control measures to assure economical, effective and continuous
erosion control throughout the construction and warranty period.
7.15.7 The materials for erosion control measures shall conform to Section 208 of the Colorado
Department of Transportation Standard Specifications or Urban Drainage and Flood Control District
(UDFCD) Volume 3 Urban Storm Drainage Criteria Manual.
7.15.8 The Contractor is responsible for complying with the requirements of any Town development permit
or approval and the Stormwater Discharges Permit associated with Construction Activity Permit from
CDPHE until the permits have been formally inactivated. Contract requirements include:
● Develop a Stormwater Management Plan (SWMP) and submit to the Town for review and approval.
● After Town approval of the SWMP, submit a permit application to CDPHE at least 10 days prior to
the start of construction activities.
● Submit proof of issuance of a Town development permit or approval and proof of issuance of a
Stormwater Discharge Permit Associated with Construction Activity to the Project Manager.
During Construction
● Keep a current copy of the SWMP on site at all times.
● Document any plan changes on the approved SWMP.
● Install Best Management Practices (BMPs) according to specifications outlined in the SWMP.
● Perform visual inspection daily.
● Perform written inspections of stormwater and erosion controls every 14 days and following each
significant storm event.
● Maintain inspection records and maintenance records on-site with the SWMP at all times.
● Provide SWMP and inspection records to Town Inspector upon request.
● Maintain and modify BMPs to reflect current conditions of the job site until Final Stabilization is
achieved.
111
18
● In accordance with project schedule, implement phasing of grading and temporary vegetation cover
to properly manage site runoff during periods of construction inactivity.
Post-Construction
● Project Manager or Designee will determine when final stabilization is reached. Final Stabilization,
as defined by the State of Colorado, is reached when all soil disturbing activities at the site have
been completed and a uniform vegetative cover has been established with a density of at least 70
percent or pre-disturbance levels or equivalent, permanent, physical erosion reduction methods
have been employed.
● Remove all temporary BMPs.
● Inactivate Town development permit and the Stormwater Discharge Permit Associated with
Construction Activity through Inactivation Notice or Notice of Transfer or Reassignment as
determined by the Project Manager.
7.15.9 For more specific information about SWMP requirements, refer to state standards and
specifications.
7.15.10 Construction sites that discharge un-permitted stormwater are in violation of the Clean Water Act,
and may be subject to fines of up to $25,000 a day per violation and subject to additional civil penalties .
7.15.11 When included in the Special Conditions, the Contractor shall assign to the project an employee,
or other person approved by the Project Manager to serve in the capacity of the Erosion Control Supervisor
(ECS). The ECS shall be a person other than the Contractor’s superintendent, unless otherwise approved
by the Project Manager. The ECS shall be experienced in all aspects of construction and have satisfactorily
completed an ECS training program authorized by the Town. Certified Erosion Control Training is required
for contractors responsible for installing and maintaining the BMPs. Call (303) 441 -1439 to inquire about
the next training opportunity. Proof that this requirement has been met shall be submitted to the Project
Manager prior to start of any earth disturbance work.
7.15.12 The ECS’s responsibilities shall be as follows:
● Ensure compliance with all water quality permits in effect during the construction work.
● Directly supervise the installation, construction, and maintenance of all erosion control measu res
specified in the Contract and coordinate the construction of erosion control measures with all
other construction operations.
● Direct the implementation of suitable temporary erosion and sediment control features as
necessary to correct unforeseen conditions or emergency situations. Direct the dismantling of
those features when their purpose has been fulfilled unless the Project Manager directs that the
features be left in place.
● Inspect all erosion control features implemented for the project. The writ ten inspections shall
take place at least once every 14 days and after each storm event that causes surface runoff
and be available for review upon request. The appropriate form for this report will be supplied by
the Project Manager. The inspections shall be made during the progress of the work, during work
suspensions, and until final stabilization acceptance of the work. During project suspensions,
inspections shall take place at least once every 14 days, or as directed.
● Attend all project scheduling meetings as required by Project Manager.
● Upon the Project Manager or Inspector’s request, implement necessary actions to reduce
anticipated or presently existing water quality or erosion problems resulting from construction
activities. The criteria by which the Project Manager or Inspector initiates this action may be
based on water quality data derived from monitoring operations or by any anticipated conditions
(e.g., predicted storms) which the Project Manager or Inspector believes could lead to unsuitable
water quality situations.
7.15.13 All erosion control shall be performed in accordance with Sections 208 of the Colorado Department
of Transportation’s Standard Specifications or Construction Best Management Practices of UDFCD Volume
3 Urban Storm Drainage Criteria Manual.
112
19
7.15.14 Unless listed in the Bid Document, all erosion control features, including the Erosion Control
Supervisor will not be measured, but will be paid for on a lump sum basis. The lump sum price bid will be
full compensation for all work required to complete the item.
7.15.15 Work to furnish, install, maintain, remove and dispose of erosion and sediment control features
specified in the Bid document will be paid for at the contract unit price.
7.16 Cleaning Up and Restoration
7.16.1 The Contractor shall clean up all refuse or scrap materials so the site presents a neat, orderly, and
workmanlike appearance at all times.
7.16.2 Upon completion of the Project, and before Final Inspection, the Contractor shall remove from the
construction site and any occupied adjoining property all plants, buildings, refuse, unused materials, forming
lumber, sanitary facilities, and any other materials and equipment that belong to the Contractor or its
Subcontractors.
7.16.3 The Town may clean up and restore the construction site satisfactorily when the Contractor fails to
do so. Any costs the Town incurs will be deducted from the Final Payment due the Contractor.
Article 8--OTHER WORK
8.1 The Town reserves the right to award other Contracts in connection with the Project. The
Contractor shall cooperate with and afford other contractors reasonable opportunity for the introduction and
storage of their materials and the execution of their work, and shall coordinate its Work with theirs.
Article 9--TOWN'S RESPONSIBILITIES
9.1 The Town will furnish the data required by the Contract and will make payments to the Contractor
as provided by these General Conditions.
Article 10--PROJECT MANAGER'S RESPONSIBILITIES
10.1 The Project Manager (Project Manager is a defined term meaning the Town’s authorized
representative) shall maintain Owner's authority over the Contractor relating to field direction and project
administration, but does not assume liability for the Contractor's work, nor control scheduling whenever
such performance is located in or upon the Town's property. The Project Manager will furnish or coordinate
all explanations from consultants, field directions, horizontal and vertical control and inspections necessar y
to assure compliance with the Project documents, except as otherwise stated in the Project documents.
10.2 Lines and Grades
10.2.1 The Contractor shall survey and stake as specified in the Special Conditions.
10.2.2 If the Special Conditions indicate the Project Manager is responsible for appointment and payment
of a surveyor for construction staking. The Contractor shall give assistance, as required by the Surveyor,
to aid in the staking, including clearing, improving access, exploratory excavations, and suspending
operations to permit the surveyor to perform its work.
113
20
10.2.3 If the Project Manager appoints a Surveyor, the Contractor shall give notice to the Surveyor at least
five working days before initial lines and grades are needed. Thereafter, the Contractor shall give the
Surveyor notice at least three working days before additional line and grade stakes are needed. The Project
Manager is not responsible for providing lines and grades until the Contractor meets the notice
requirements of this Article.
10.2.4 If the Project Manager appoints a surveyor, the Contractor shall preserve all stakes, benchmarks,
and any other survey points. If the Contractor damages them, the Contractor shall pay for their
replacement. Contractor shall preserve, reset or reestablish all bench marks, monuments and other
established control points as the Project warrants.
10.3 Inspection
10.3.1 The Project Manager shall appoint Inspectors to inspect the Project. Inspection may extend to all
or any part of the Project. The Inspectors are not authorized to alter the provisions of the Drawings or
Specifications or to delay the fulfillment of the Contract by failure to inspect materials and Work with
reasonable promptness.
10.3.2 An Inspector has authority to reject defective materials and to suspend any Work that is being done
improperly subject to the final decision of the Project Manager.
10.3.3 The Contractor shall give the Project Manager due and timely notice of readiness when the Project
is to be inspected, tested or approved by someone other than the Inspector. The Contractor shall give the
Project Manager required certificates of inspection, testing or approval. Inspection, tests or approvals by
the Project Manager or others does not relieve the Contractor from its obligations to perform the Work
according to the requirements of the Contract.
10.3.4 If the Project Manager considers it necessary or advisable that previously completed or covered
Work be inspected or tested, the Contractor shall uncover, expose or otherwise make the Work available
to the Project Manager for inspection and testing. The Contractor shall furnish all tools, labor, material, and
equipment necessary to make the Work available. If the Project Manager finds the Work defective , the
Contractor shall pay for the cost of satisfactory reconstruction and making the Work available. However, if
the Work is not found defective, the Contractor will be allowed an increase in the Contract Price and/or an
extension of the Contract Time for costs and time directly attributable to making the Work available and for
reconstruction.
10.3.5 If the Contractor's operations require inspecting, testing or surveying to be done outside normal
working hours or on Town holidays, it shall be at the Contractor's expense.
10.4 Stop Work Order
10.4.1 The Project Manager has the authority to suspend Work on the Project either in whole or in part,
for as long as the Project Manager deems necessary due to:
Unsuitable weather;
Faulty workmanship;
Improper superintendence;
Contractor's failure to carry out orders or to perform any provision of the Contract;
Conditions which may be considered unfavorable for the prosecution of Work on the
Project; or
Work being carried on in an unsafe manner.
10.4.2 If it is necessary to stop work for an indefinite period, the Contractor shall, if directed by the Project
Manager, store all materials in such a manner that they will not become an obstruction or become damaged
in any way. The Contractor shall take every precaution to prevent damage to or deterioration of the Work,
providing suitable drainage and erecting temporary structures where necessary.
114
21
10.4.3 The Project Manager will put the Stop Work order in writing and the Contractor may not proceed
with Work on the suspended portion of the Project until notified in writing by the Project Manager.
10.5 Disputes
10.5.1 If the Contractor considers any Work directed by the Town to be outside the Contract requirements,
or if it considers any ruling of the Project Manager to be unfair, it shall immediately ask for a written
instruction or decision and shall perform the Work in conformance with the Project Manager's ruling. If the
Contractor considers such instructions unsatisfactory, it shall file a written protest with the Project Manager
within ten days after their receipt.
10.5.2 All claims, disputes and other matters in question arising out of or relating to the Contract shall be
submitted to the Project Manager before the Contractor can begin litigation.
10.5.3 The parties agree that any litigation by Contractor against the Town concerning this Contract shall
be filed not more than 2 years after the date of the Notice of Construction Acceptance. The parties agree
that any litigation filed by Town against Contractor concerning this Contract shall be filed not more than 2
years after the date of the Notice of Final Acceptance.
Article 11—CHANGES
11.1 General
11.1.1 The Town may make alterations to the Project without the consent of the Surety at any time during
the Work. The Contractor shall perform the Work as changed, as if originally specified. The alterations do
not invalidate the Contract in any way.
11.1.2 The Project Manager may, at any time, without notice to the Surety, by written notice to the
Contractor, make any change in the Work to be performed within the general scope of the Contract,
including but not limited to changes:
In the Specifications (including Drawings and designs);
In the method or manner of the performance of the Work;
In facilities, equipment, materials, services or site furnished by the Town; or
Directing acceleration in the performance of the Work.
11.1.3 Any written order (which terms as used in this Article shall include direction, instruction,
interpretation or determination) from the Project Manager, which may warrant a time extension or increased
or decreased costs) will be treated as a Change Order under this Article provided that the Contractor gives
the Project Manager written notice within seven (7) calendar days of that c ondition, stating the date,
circumstances, and source of the order and that the Contractor regards the order as a Change Order.
However, the Town will not authorize a change in the Contract Price for work done before approving a
Change Order authorizing the additional work. If the Town and the Contractor do not agree to the terms of
a Change Order, including the amount of additional compensation, the Contractor shall proceed with the
work under the terms of the Contract and shall maintain accurate records of the costs as described in the
General Conditions, Article 11.
11.1.4 The Contractor may not treat any order, statement or conduct of the Project Manager as a change
under this Article nor become entitled to an equitable adjustment in the Contract Price or Performance
Time, except as provided in this Article.
11.1.5 If any change under this clause causes an increase or decrease in the Contractor's cost or the time
required for the performance of any part of the Work under the Contract, whether or not ch anged by any
order, an equitable adjustment will be made and the Contract modified in writing accordingly.
115
22
In no case will the price adjustment change the original Contract Price to an amount not appropriated by
the Town Board and approved by the appropriate Town representative per its purchasing policies.
11.1.6 Claims for changes in the Contract Price or Contract Time of Performance will not be considered
after the Final Payment has been made.
11.2 Compliance with §24-91-103.6
11.2.1 Notwithstanding any other language in this contract, the issuance of any Change Order or other
form of order or directive by the Town requiring additional compensable work to be performed which will
cause the Contract Price to exceed the amount appropriate d for the Work is prohibited unless the
Contractor is given written assurance by the Town that lawful appropriations to cover the costs of the
additional work have been made or unless the Contract contains a remedy granting provision.
11.3 Field Orders
11.3.1 The Project Manager may make changes in the details of the Project at any time, by issuing a Field
Order. The Contractor shall proceed with the performance of any changes in the Project ordered by the
Project Manager. If the Contractor believes that such Field Order entitles it to a change in Contract Price
or Time, or both, it shall give the Project Manager written notice within ten days after the receipt of the Field
Order. Thereafter, the Contractor shall document the basis for the change in Con tract Price or Time within
thirty days.
11.4 Change Orders
11.4.1 Changes in the Contract Price are authorized only by Change Orders. Changes in contract time
may be made by a Change Order or by other appropriate written authorization. Any requests for extension
of time due to conditions outside of the Contractor's control shall be made in writing within seven (7)
calendar days of that condition.
11.4.2 Any difference in cost from Change Orders shall be added to or deducted from the amount of the
Contract, as the case may be. Adjustments in the amounts to be paid to the Contractor on account of
changed Work will be determined by one of the following methods in the order listed:
Unit Prices submitted in the Bid Schedule;
Negotiated Unit Prices; and
Negotiated lump sum.
11.5 Extras and Force Account Work
11.5.1 The Contractor shall perform any Work and furnish materials and equipment necessary or desirable
for proper completion of the Contract if the Project Manager believes it necessary to order Work or materials
or equipment which, in the Project Manager's opinion, are not susceptible to classification under the Unit
Price items named in the Bid Schedule, and are not included in any lump sum bid item. The Project
Manager will order such labor, material and equipment in writing before the extra Work is started. The
labor, material and equipment will be classed as extra Work. The Town will not pay for extra Work unless
the Town orders in extra work in writing. All claims for extra Work shall be submitted to the Project Manager,
supplemented by any data the Project Manager requires.
11.5.2 Extra Work and Work involving a combination of increases and decreases in the Work will ordinarily
be paid for at a lump sum or Unit Price agreed upon in writing by the Project Manager and Contractor before
the extra Work Order is issued. In the negotiation of lump sum or Unit Prices, the agreed estimated cost
of the Work plus an allowance for overhead and profit, not to exceed the allowances stated in Sec tion
11.5.3, shall be used.
116
23
11.5.3 The allowance for overhead and profit will include full compensation for superintendence, bonds
and insurance premiums, taxes (other than sales or use taxes included in the cost of materials), office
expense, and all other items of expense or cost not included in the cost of labor, materials, or equipment
provided under Sections 11.5.4, 11.5.5 and 11.5.6. The allowance for overhead and profit will be according
to the following schedule:
ACTUAL NECESSARY COST ALLOWANCE:
Labor 20 percent
Materials 15 percent
Equipment 10 percent
The Actual Necessary Cost for labor, materials, or equipment will be computed according to Sections
11.5.4, 11.5.5 and 11.5.6.
Superintendence, bond and insurance premiums, taxes (other than sales or use taxes inclusive in the cost
of materials), and other general expense will not be included in the computation of actual necessary cost.
When all or any part of the extra Work is performed by a Subcontractor or specialty firm, the prime
Contractor may add five percent of the Subcontractor's total cost for the extra Work. The Contractor shall
give the Project Manager daily report sheets covering the direct cost of labor and materials and charges for
equipment. The daily report sheets shall provide names or identifications and classifications of workers and
hours worked, as well as size, type and identification number of equipment and hours operated. Material
charges shall be substantiated by valid copies of vendors' invoices. The Project Manager will make any
necessary adjustments and compile the costs of cost-plus Work. When these reports are agreed upon and
signed by both parties, they become the basis of payment for the Work performed.
11.5.4 Labor: The cost of labor used in performing the Work by the Contractor, a Subcontractor, or other
forces will be the sum of the actual wages paid plus any employer payments to, or on behalf of, workers for
fringe benefits including health and welfare, pension, vacation, and similar purposes; all payments imposed
by State and Federal laws including, but not limited to, compensation insurance, and social security
payments; and the amount paid for subsistence and travel required in accordance with the regular practice
of the employer.
At the beginning of the contract or as later requested by the Project Manager, the Contractor shall furnish
the Project Manager proof of labor compensation rates being paid or already paid.
11.5.5 Materials: The cost of materials used in performing the Work, including transportation charges for
delivery (exclusive of machinery rentals), will be the cost to the purchaser, whether Contractor,
Subcontractor or other forces, from the Supplier thereof, inclusive of sales or use taxes, except if, in the
opinion of the Project Manager, the cost of materials is excessive, or the Contractor does not furnish
satisfactory evidence of the cost of such material. If the Project Manager finds the cost excessive or the
Contractor has not furnished evidence of the cost, then the cost w ill be deemed to be the lowest current
wholesale price for the quantity concerned delivered to the job-site less cash or trade discounts.
The Town reserves the right to furnish materials for the Work and the Contractor may not claim costs and
profit on materials furnished by the Town.
The Town reserves the right to purchase from the Contractor any materials previously purchased for a
project and not used. Payment for the materials will be based on the actual material cost as shown on the
Supplier's invoice, any transportation charges incurred, plus a fifteen percent handling fee.
11.5.6 Equipment: The Contractor will be paid according to the rental rates agreed upon in writing before
extra or force account Work is begun, for any machinery or special e quipment (other than small tools)
authorized by the Project Manager. The Contractor may furnish cost data to assist the Project Manager in
the establishment of the rental rate.
117
24
The rental rates paid, as provided above, shall include the cost of fuel, oil , lubrication supplies, small tools,
necessary attachments, repairs and maintenance of all kinds, depreciation, storage, insurance, and all
incidentals. Operator wages will be paid separately, as provided in Section 11.5.4.
Individual pieces of equipment or tools having a replacement value of $100.00 or less, whether or not
consumed by use, are considered small tools and no payment will be made for them.
Rental time will not be allowed while equipment is inoperative due to breakdowns or storage on-site.
11.5.7 Equipment on the Work: The rental time to be paid for equipment on the Work is the time the
equipment is in productive operation on the extra Work being performed.
11.5.8 Eliminating Items: The Project Manager shall notify the Contractor in writing to eliminate any items
contained in the proposal unnecessary for the proper completion of the Work. Such action will not invalidate
the contract. The Contractor, by Change Order, will be reimbursed for actual work done and all cost
incurred, including mobilization of materials and equipment before the elimination of such items.
Article 12--CONTRACT TIME
12.1 General
12.1.1 Time is of the essence in the performance of all Work contemplated in the Contract. Therefore,
the Work shall be commenced no later than ten days from and including the date of Notice to Proceed and
shall be fully completed in a satisfactory and acceptable manner within the time stated in the Contract.
12.1.2 The capacity of the Contractor's construction plant and force shall be sufficient as to insure
completion of the Project within the allotted time. The Contractor shall use multiple crews if necessary to
complete the Project within the allotted time.
12.2 Delays
12.2.1 Delay claims fall into three categories: non-excusable, excusable, or compensable. Any payment
for delays or the granting of time extensions require a properly executed Change Order per Article 11.
12.2.1.1 Non-excusable delay is one caused by factors within the Contractor's reasonable control.
The delay is the Contractor's fault; no additional time or additional compensation is allowed. Typical types
of non-excusable delays are:
Late submittal of Shop Drawings;
Late procurement of materials or equipment;
Insufficient personnel;
Unqualified personnel;
Inadequate coordination of Subcontractors or other contractors;
Subcontractor delays;
Late response to Town and Project Manager inquiries; or
Construction not conforming to contract requirements making repeated re-working
necessary.
12.2.1.2 Excusable delay is caused by factors beyond the Contractor's reasonable control, but is
not the result of the Town's actions or failure to act. An excusable delay entitles the Contractor to an
extension of time but no additional compensation for the cost of the delay.
118
25
12.2.1.3 Compensable delay is one where the Town has failed to meet an obligation stated or
implied in the construction contract. If the Project Manager considers a delay as compensable , the Town
will grant a time extension and reimburse the Contractor for the increased cost caused by the delay. Typical
types of Town-caused delays are:
Late approval of Shop Drawings and samples;
Delays in answers to field inquiries by the Contractor;
Interference with the Contractor during construction;
Town-caused schedule changes;
Design changes; or
Interference by other contractor's or the Town's forces.
12.3 Failure to Complete Work on Time--Liquidated Damages
12.3.1 The Town may permit the Contractor to proceed if the Contractor fails to substantially complete the
Work on or before the original date set forth for Substantial Completion in the Contract, or on or before the
corrected date of Substantial Completion. In such case, the Town will deduct the sum specified in the
Contract for each day that the Work remains uncompleted. This sum shall not be a penalty but is liquidated
damages.
12.3.2 The parties agree that, under all of the circumstances, the daily basis and the amount set forth as
liquidated damages is reasonable and equitable. The Town expends additional personnel effort in
administrating the Contract or portions of it that are not completed on time, and such efforts and the costs
thereof are impossible to accurately compute. In addition, some, if not all, citizens of Estes Park incur
personal inconvenience and lose confidence in their government as a result of public projects or parts of
them not being completed on time, and the impact and damages, certainly serious in m onetary as well as
other terms, are impossible to measure.
12.3.3 The Contractor shall perform with due diligence, regardless of meeting the various scheduled
deadlines. If, in the opinion of the Town's Project Manager, or other authorized agent of the T own, the
Contractor is not prosecuting the Work under the Contract, written notice will be given and the Contractor
shall have seven days to resume the Work with due diligence. Failing a cure, liquidated damages will be
charged until there is resumption of prosecution with due diligence.
12.3.4 Permitting the Contractor to continue and finish the Work, or any part of it, after the time fixed for
its completion, or after the date to which the time of completion may have been extended, shall not operate
as a waiver on the part of the Town of liquidated damages or any of its rights under the Contract.
Article 13--WARRANTY AND GUARANTEE: SAMPLES AND TESTING; DEFECTIVE WORK AND
MATERIALS
13.1 Warranty and Guarantees
13.1.1 The Contractor and its Surety are jointly and severally responsible for the condition of all completed
Work, maintenance (unless the Town is required by the Special Conditions to assume responsibility for
maintenance) and satisfactory operation of Work performed under the Contra ct for a period of two years
following the Notice of Construction Acceptance or for one year after warranty work is fully satisfied. A
notice of warranty work that requires repair or replacement under the warranty will be submitted to the
Contractor on a Notice of Warranty Work. The Contractor and Surety are jointly and severally responsible
for the satisfactory repair or replacement of any Work, materials or equipment which are found defective
during this period, provided any failure results directly or in directly from faulty workmanship or negligence
by the Contractor, from faulty manufacturing or from faulty erection or improper handling of materials or
equipment furnished or installed by the Contractor. Neither the Contractor nor Surety is liable for any failure
resulting from the Town's neglect or improper operation of facilities or the acts of third parties.
119
26
13.2 Samples and Testing
13.2.1 All materials and equipment used in the Project will be subject to sampling and testing according
to generally accepted standards and as required in the Contract Documents. In the absence of direct
references, the sampling and testing of materials will be done according to current Specifications of the
American Society for Testing and Materials or the American Water Works Association. The Contractor
shall cooperate with the Project Manager in collecting and forwarding required samples.
13.2.2 The Contractor shall not incorporate any materials into the Project or cover any part of the Work
until it has been inspected and approved according to the Contract Documents.
13.2.3 The Contractor shall furnish all samples without charge. The Contractor will cooperate with the
Project Manager in collecting, handling, storing, and forwarding required samples including the fur nishing
of manpower and equipment when necessary.
13.2.4 The Town will pay the cost of the initial test except when the Contract states otherwise. The Town
will charge the Contractor for repeated tests due to failure of the initial test.
13.3 Access to Work
13.3.1 The Project Manager and the Manager's representatives shall have access to the Project at any
time for purposes of inspection, sampling, and testing. Access shall extend to authorized representatives
of participating federal or state agencies and to other public authorities having jurisdiction established by
law. The Contractor shall provide proper facilities for access to the Project.
13.3.2 Access to the Project shall mean wherever and whenever it is in manufacture, preparation or
progress. It shall include access to payrolls, records of personnel, invoices of materials, terms and
conditions of sale of materials and equipment to be incorporated in the Project, files, records, books,
correspondence, instructions, Drawings, receipts, subcontracts, purchase orders, vouchers, memoranda
and any other relevant data and records relating to the Contract.
13.3.3 The Town may, at reasonable times, inspect the part of the plant, place of business or worksite of
the Contractor or Subcontractor at any tier which is pertinent to the performance of the Contract.
13.4 Defective Work and Materials
13.4.1 Material and workmanship not conforming to the requirements of the Contract are deemed
defective. Defective Work or material shall be removed immediately from the Project site and replaced with
acceptable Work and material at the Contractor's expense.
13.4.2 If the Contractor fails to replace rejected materials or Work within ten days after receipt of written
notice, the Town may replace or correct them and charge the cost to the Contractor and may terminate the
right of the Contractor to proceed. Failure to detect previously installed defective materials or workmanship
shall not impair the Town's right to receive a completed project which is free of defects and meets all of the
requirements of the Contract Documents.
120
27
Article 14--PAYMENTS TO CONTRACTOR AND COMPLETION
14.1 General
14.1.1 Unless expressly provided otherwise, the prices shown in the Bid Schedule include the cost of all
labor, materials, equipment, tools, forms, services, utilities, royalties, fees, and any other thing or expense
necessary to complete the Project. Items not shown on the Plans, Specifications or Special Provisions but
which are necessary to construct the Project will be considered a part of the Project whether specified or
not and no separate payment will be made for these items.
14.1.2 Unless expressly provided otherwise in the Contract, the amount to be paid for the Work includes
all labor, materials, forms, tools, scaffolding, plants, equipment, service, utilities, royalties, fees, and
everything, whether temporary or permanent, necessary to complete the Project.
14.2 Determination of Amounts and Quantities
14.2.1 The Project Manager shall verify determinations of amounts and quantities of Work performed. The
Project Manager shall have access to the records as stated in Article 13.3. The method of measurement
of the Contract Bid Items will be as specified in the Special Conditions or Technical Specification s.
14.3 Variations in Estimated Quantities
14.3.1 Where the quantity of a pay item in the Contract is an estimated quantity and where the actual
quantity of such pay item varies more than twenty-five percent below the estimated quantity stated in the
Contract, the Contractor may request an equitable adjustment in the Contract Price, upon demand of the
Town. The Contract Price adjustment will be based upon any decrease in costs due solely to the variation
below seventy-five percent of the estimated quantity.
Where the quantity of a pay item in the Contract is an estimated quantity and the actual quantity of such
pay item is more than twenty-five percent above the estimated quantity in the Contract, the Town may elect
to terminate the Contract or issue a Change Order to adjust the Contract Price.
In no case will the price adjustment change the original Contract Price to an amount not appropriated by
the Town Board and approved by an appropriate representative of the Town under its purchasing policies.
14.4 Monthly Estimates--Partial Payments
14.4.1 The Contractor shall prepare monthly partial estimates (monthly estimates) for all Work completed
up to that time. The authorized Town representative(s) shall approve the monthly estimates before
progress payments will be made. The format of the monthly estimates will be related to the format of the
Bid Proposal.
14.4.2 In making such progress payments, subject to the exceptions in this Article, the Town will retain
five percent of the calculated value of completed Work for contracts in excess of $150,000 and where the
contractor is satisfactorily performing the contract. The withheld percentage of the Contract Price of any
contracted Work will be retained until the contract is completed satisfactorily and finally accepted by the
Town.
14.4.3 On Contract amounts of less than $150,000, ten percent may be withheld until Final Payment.
14.4.4 If the Town finds that satisfactory progress is being made in any phase of the Contract, i t may,
upon written request by the Contractor, authorize payment from the withheld percentage to the Contractor.
Before payment is made, the Town shall determine that satisfactory and substantial reasons exist for the
payment and shall require written approval from any surety furnishing bonds for the Work.
121
28
14.4.5 Monthly estimates may include the value of acceptable materials required in the construction which
have been delivered on the site of the Work or to adjacent railway siding and for which accepta ble provisions
have been made for preservation and storage, providing the Contractor submits with its monthly estimate,
paid invoices in duplicate for the material for which payment is being requested. Material paid for by the
Town becomes the property of the Town and, in the event of the default on the part of the Contractor, the
Town may use or cause to be used such materials in construction of the Work provided for in the Contract.
14.4.6 The Town may withhold, in addition to retained percentages from Contractor payments, such an
amount or amounts as may be necessary to cover:
14.4.6.1 Claims for labor or materials furnished the Contractor or Subcontractor(s) or reasonable
evidence indicating probable filing of such claims;
14.4.6.2 Failure of the Contractor to make proper payment to Subcontractors or for material or labor
furnished by others;
14.4.6.3 A reasonable doubt that the Contract can be completed for the balance then unpaid;
Evidence of damage to another Contractor or private property;
Uncorrected defective Work or guarantees that have not been met;
Failure of the Contractor to submit cost breakdowns, schedules, reports and other
information required under the Contract;
Persistent failure to carry out the Work according to the Contract; or
Reasonable evidence that the Work will not be completed within the Contract Time
and that the unpaid balance would not be adequate to cover actual or liquidated
damages for the anticipated delay.
14.4.7 The Town may disburse and has the right to act as agen t for the Contractor in disbursing funds,
withheld pursuant to this paragraph, to the party or parties who are entitled to payment therefrom, but the
Town assumes no obligation to make such disbursement. The Town will render to the Contractor a proper
accounting of all funds disbursed under this paragraph.
14.5 Escrow Contract in Lieu of Retainage
14.5.1 When sums are withheld to assure satisfactory performance of any contract exceeding fifty
thousand dollars, the Contractor may withdraw the whole or any portion of the withheld sums if the
Contractor deposits acceptable securities with the Director of Finance to negotiate the acceptable securities
and to receive the payments due the Town pursuant to law or the terms of the Contract. To the extent there
are excess funds resulting from negotiation, the balance shall be returned to the Contractor. Acceptable
securities which are deposited shall have a market value at least equal in value to the amount withdrawn
at all times. If at any time the Town determines that the market value of the acceptable securities deposited
has fallen below the amount withdrawn, the Director of Finance shall give notice to the Contractor, who
shall deposit additional acceptable securities in an amount sufficient to re -establish a total deposit of
securities equal in value to the amount withdrawn.
14.5.2 The Town may enter into an escrow contract or agreement with any national bank, state bank, trust
company or savings and loan association located in this state and designated by the Contractor, after notice
to the Surety, to provide an escrow agent for the custodial care and servicing of any obligations deposited
with it pursuant to §24-91-106, C.R.S., as amended. Such services shall include the safekeeping of the
obligations and the rendering of all services required to effectuate the purpose of §24-91-106 and §38-26-
107, C.R.S., as amended.
14.5.3 The Town or any national bank, state bank, trust company or savings and loan association located
in the state and designated by the Contractor to serve as custodian for the obligations pursuant to §24-91-
106, C.R.S., as amended, shall collect all interest and income when due on the obligations deposited and
shall pay them, when and as collected, to the Contractor who deposited the obligations. If the deposit is in
122
29
the form of coupon Bonds the escrow agent shall deliver each coupon, as it matures, to the Contractor.
The Contractor may not charge any expense incurred for this service to the Town.
14.5.4 Any amount deducted by the To wn, pursuant to law or the terms of a Contract, from the retained
payments otherwise due to the Contractor, will be deducted first from that portion of the retained payments
for which no obligation has been substituted and then from the proceeds of any dep osited obligation, in
which case, the Contractor is entitled to receive the interest, coupons or income only from those obligations
which remain on deposit after such amount has been deducted.
14.5.5 Provided that the Subcontractor has performed under its Contract with the Contractor, the
Contractor shall disburse to each Subcontractor all retained payments and interest disbursed to the
Contractor by the Town, in proportion to the respective amounts of retained payments, if any, which the
Contractor has withheld from its Subcontractors.
14.5.6 The provisions of this Article do not apply if a part of the Contract Price is to be paid with funds from
the federal government or from some other source and if the federal government or such other source has
inconsistent requirements concerning retention or payment of funds applicable to the Contract.
14.5.7 If it becomes necessary for the Town to take over the completion of any Contract, all of the amount
owed the Contractor, including the withheld percentage, sha ll first be applied toward the cost of completion
of the Contract and any liquidated damages. Any balance remaining in the retained percentage shall be
payable to the Contractor or the Contractor's creditors. Such retained percentage, as may be due any
Contractor, shall be due and payable at the expiration of thirty days from the date of the Town Project Final
Acceptance.
14.6 Town's Right to Accept Portion of the Project
14.6.1 The Town reserves the right to accept and make use of any completed section of the Project without
invalidating the Contract or obligating the Town to accept the remainder of the Project.
14.7 Substantial Completion
14.7.1 When the Contractor considers the entire work ready for its intended use and has obtained either
a “Certificate of Occupancy” or a “Copy of the Final Inspection Approval Memo” from Building Inspections
for required structures, the Contractor shall notify the Project Manager in writing that the entire Work is
substantially complete (except for items specifically listed by Contractor as incomplete) and request that
the Project Manager issue a Notice of Substantial Completion. Within a reasonable time, the Contractor,
Project Manager and any other appropriate Town representatives shall make an inspection of the W ork to
determine the status of completion. If the Project Manager does not consider the Work substantially
complete or the Contractor has not submitted either a “Certificate of Occupancy” or a “Copy of the Final
Inspection Approval Memo” from Building Inspections to the Project Manager, the Project Manager will
notify the Contractor in writing giving the reasons for denial of the Notice of Substantial Completion. If the
Project Manager considers the Work substantially complete, the Project Manager will pr epare and deliver
to the contractor a Notice of Substantial Completion which shall fix the date of Substantial Completion. The
Project Manager shall attach to the certificate a tentative list ("punch list") of items to be completed or
corrected before Final Payment. Warranties required by the Contract shall commence on the date set in
the Notice of Construction Acceptance for the Project, or the date set in the Notice of Construction
Acceptance for a designated portion of the Project, unless otherwise pro vided in the notice of Substantial
Completion.
14.8 Construction Acceptance
14.8.1 When the Work specified in the Contract is completed and the final cleanup has been performed,
the Contractor shall notify the Project Manager that all Work under the Contract has been completed and
the Project Manager shall, within fourteen calendar days of receipt of such notice, make the final inspection.
123
30
If the Project Manager finds that the Project has been completed according to the requirements set forth in
the Contract, the Town, upon the recommendation of the Project Manager, shall issue a Notice of
Construction Acceptance. Notices of Construction Acceptance issued orally or without proper Town
authorization are void. Town will not make the final payment under the Contract before it issues a
Construction Acceptance.
14.9 Claims Against the Contractor
14.9.1 Before Final Payment, the Contractor shall sign the Contractor's Certificate and Release form
provided by the Town.
14.9.2 As provided by Colorado law, persons or businesses, including Subcontractors, who have not been
promptly paid by the Contractor and who have provided materials, services and labor of any kind, or labor
and material incidental to the completion of the Proje ct, may file claims and the Town may withhold from
the Contractor an amount sufficient to cover such claims.
14.10 Final Payment--Pursuant to Section 38-26-107, C.R.S., as Amended
14.10.1 The Town shall make a Final Settlement in accordance with Section 38-26-107, C.R.S., within sixty
days after the Town issues the Notice of Construction Acceptance.
14.10.2 After the Notice of Construction Acceptance is issued by the Town, a Notice of Final Settlement
shall be advertised at least twice, not less than ten days before the date of Final Settlement, in a newspaper
of general circulation in the county where the Work was done. If no claims are filed before the expiration
of ten days from the date of the last publication of the Notice of Final Settlement, the Final Payment,
including retainages, may be made.
14.10.3 If any Subcontractor or Supplier files a claim before the expiration of ten days from the date of the
last publication of the Notice of Final Settlement, for Work done or material furnished that has not been paid
for by the Contractor, the Town shall withhold from Final Payment to the Contractor sufficient funds to insure
the payment of the claims. The funds shall not be withheld longer than ninety days from the date of Final
Settlement unless a legal action is started within that time to enforce payment of the claims.
14.10.4 At the end of ninety days, or any time before, if the person filing the claim acknowledges receipt of
payment for the claim, or otherwise releases the claim in writing, the T own shall pay the Contractor the
monies not subject to suit or lis pendens notices.
14.10.5 Monies that are the subject of a suit will be withheld until a judgment is rendered in the suit.
Article 15--CONTRACT TERMINATION
15.1 Town's Right to Terminate Contract for Convenience
15.1.1 The Town shall, at any time, have the right to terminate the Contract, for convenience, upon giving
written notice to the Contractor. The Contractor shall be entitled to the full amount of the approved estimate
for the Work satisfactorily completed under the Contract up to the time of such termination, including the
retained percentage. The Town shall reimburse the Contractor for such expenditures as, in the judgment
of the Project Manager, are not otherwise compensated for, together with the cost of moving to and from
the Project and a reasonable profit on the Work deleted by reason of the annulment of the Contract, in order
that an equitable settlement is made with the Contractor.
15.2 Town's Right to Terminate Contract for Default
124
31
15.2.1 The Project Manager, with the approval of the Purchasing and Contracts Manager and acting on
behalf of the Town, may serve notice upon the Contractor and its Surety of the intention to terminate the
Contract if the performance of the Work set forth under the Contract is unnecessarily or unreasonably
delayed by the Contractor, or if any of the provisions of the Contract are being violated by the Contractor
or its Subcontractors. The Contract is terminated unless, in the opinion of the Project Manager, the
Contractor corrects the violation within five days after the notice is served. In the event of such termination,
the Project Manager, acting on behalf of the Town, shall immediately serve notice of the termination and
the Surety's right to complete the Contract upon the Surety and the Contractor. The Surety shall have the
right to take over and perform the Work called for in the Contract. The Surety is then bound by all the
provisions of the Contract. If the Surety does not commence performance of the Work within ten days from
the date of the notice, the Town may take over the Project and, without prejudice to any other remedies,
complete the Project and the Contractor and its Surety are liable to the Town for any excess costs incurr ed
by the Town.
15.3 Contractor's Right to Terminate Contract
15.3.1 The Contractor may terminate the Contract if the Work is stopped for a period of three months
under any order of any court or other public authority through no act or fault of the Contr actor or of anyone
employed by it.
The Contractor may suspend Work if Town fails to make payments at the times provided in the Contract
and the Contractor has given the Town written notice seven days before suspending Work. The Contractor
may terminate the Contract, at its option, if the Town continues to be in default thirty days after the date of
the written notice. Failure by the Town to make payments at the times provided is a bar to any claim by the
Town against the Contractor for delay in completion of the Project if the Contractor suspended Work for
that reason.
If the Contractor terminates the Contract, it may recover the price of all Work done and materials provided
and all damages sustained.
Article 16--EQUAL OPPORTUNITY
16.1 General: During the performance of the Contract, the Contractor agrees as follows:
16.1.1 The Contractor shall not discriminate against any employee or applicant for employment because
of race, color, age, disability, religion, sex, sexual orientation, gender identity or expression, national origin,
or as otherwise prohibited by law.
16.1.2 The Contractor shall ensure that all Subcontractors shall not discriminate against any employee or
applicant for employment because of race, color, age, disability, religion, sex, sex ual orientation, gender
identity or expression, national origin, or as otherwise prohibited by law.
Article 17--AUDIT
17.1 Records and Reports
17.1.1 The Contractor shall keep and preserve full and detailed accounts relating to the Contract for a
period of three years from the date of final payment under the Contract in which the Work is completed.
17.1.2 The Subcontractor shall keep and preserve full and detailed accounts relating to the Contract for a
period of three years from the date of final payment under the subcontract.
17.2 Access
125
32
17.2.1 The Contractor shall permit the Town and the Town's accountants to have access as stated in
Article 13.3 and to the records kept per Article 17.1 for the purpose of making such financial audits, or
verifications as the Town deems necessary or appropriate concerning the Contractor's performance under
the Contract.
Article 18--MISCELLANEOUS
18.1 Reservation of Right to Bar Persons from the Work and Site : The Town reserves the right to
bar any person, including employees of the Contractor and Subcontractors, from the Town's Work site.
This shall not be treated as a request for the employee's termination but a request that the employee not
be assigned to work on the Town Work site. No increase in contract time or price is authorized.
18.2 Provisions Construed as to Fair Meaning: The provisions of the Contract shall be construed as
to their fair meaning, and not for or against any party based upon any attributes to such party of the source
of the language in question.
18.3 Headings for Convenience: All headings, captions and titles are for convenience and reference
only and of no meaning in the interpretation or effect of the Contract.
18.4 No Implied Representations: No representations, agreements, covenants, warranties, or
certifications, express or implied, exist as between the parties, except as specifically set forth in the
Contract.
18.5 Financial Obligations of Town: All financial obligations of the Town under the Contract are
contingent upon appropriation, budgeting, and availability of specific funds to discharge such obligations.
Nothing in the Contract shall be deemed a pledge of the Town's credit, or a payment guarantee by the
Town to the Contractor.
18.6 Assignment/transference: The Contractor may not assign or transfer any interest in the Contract,
including any money due or to become due, without the prior written consent of the Town.
18.7 Amendments: The parties shall only amend the Contract in writing with the proper offic ial
signatures and, if required elsewhere in this Contract, on the proper forms.
18.8 Waiver: No waiver of a breach or default under the Contract is a waiver of any other or subsequent
breach or default.
18.9 Governing Law: The Contract is governed and to be construed according to the laws of the State
of Colorado. Venue and jurisdiction for any court action filed regarding this agreement shall be in either
Larimer County or the United States District Court for Colorado.
18.10 Binding Contract: The Contract is binding upon the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
126
33
127
34
128
1
PROCEDURE FOR LAND USE PUBLIC HEARING
Applicable items include: Annexation, Amended Plats, Boundary Line Adjustments, Development
Plans, Rezoning, Special Review, Subdivision
1. MAYOR.
The next order of business will be the public hearing on PLANNING COMMISSION
ACTION ITEM 1.A. PRELIMINARY CONDOMINIUM MAP, THE DIVIDE
CONDOMINIUMS AT WILDFIRE, WILDFIRE ROAD, WESTOVER
CONSTRUCTION, INC., RDA ASSOCIATES LLC, APPLICANTS.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, from the
Applicant, public comment, and written comments received on the
application.
Has any Trustee had any ex-parte communications concerning this
application(s) which are not part of the Board packet.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2. STAFF REPORT.
Review the staff report.
Review any conditions for approval not in the staff report.
3. APPLICANT.
The applicant makes their presentation.
4. PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
application. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
5. REBUTTAL.
129
2
The applicant will be allowed a rebuttal that is limited to or in response to
statements or questions made after their presentation. No new matters may
be submitted.
6. MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the application which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the
application.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
7. SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8. DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9. VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
130
COMMUNITY DEVELOPMENT Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: Jeffrey Woeber, Senior Planner
Date: October 8, 2019
RE: Preliminary Condominium Map, The Divide Condominiums at Wildfire, Wildfire
Road, Westover Construction, Inc., RDA Associates LLC, Applicants
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Conduct a public hearing and make a decision on a Preliminary Condominium Map for two
buildings, with eight condominium units per building, on a lot 1.01 acres in size. This is a
component of the Wildfire Homes project.
Present Situation:
The subject property is 1.01± acres in size and is undeveloped. The site is zoned RM- Multi-
Family Residential. This is one component of the “Wildfire” project, which consists 43 total lots.
Fourteen lots will be for detached single-family homes, 26 lots will be for townhomes, 2 lots will
be for condominium projects (The subject condominium project, “The Meadows,” as well as
“The Divide.”) One lot will be dedicated for an office use benefiting Crossroads Ministry. Also
included are 10 outlots dedicated for open space, utilities, access, and drainage.
The Wildfire project has received approval of a rezoning, a Preliminary Plat and a Final Plat.
The Wildfire project property is to be annexed into the Town of Estes Park, with the annexation
approval contingent on the various required approvals for the project.
Proposal:
Applicant proposes to develop the vacant lot with two condominium buildings, with eight units
per building, containing a total of 16 individual units. All units will be qualified as workforce
housing. Workforce housing, under the EVDC §11.4.C., requires, “…at least one (1) resident in
each housing unit annually submits an affidavit, including a copy of a W-2 form, to the Town
certifying that the resident is employed within the Estes Park School District R-3 Boundary
Map.”
As all units are proposed as workforce, the applicant is able to utilize the density and height
bonus incentives per EVDC §11.4. The maximum permitted density for this lot using the density
bonus incentive (200% of maximum base) is 16.3 units, where the applicant is proposing 16.
The height bonus incentive allows a maximum height of 38 feet, with a maximum height of
34.83 feet being proposed.
35
131
The applicant has drafted a required Restrictive Covenant and Agreement, which has been
reviewed and approved by Town Planning staff and the Town Attorney. The Restrictive
Covenant and Agreement is included as Attachment x.
Per Chapter 3 of the EVDC, Review Procedures and Standards, the condominium project
requires review and action on a Development Plan. The Development Plan required Estes
Valley Planning Commission (EVPC) review and action. The EVPC approved the Development
Plan (nearly identical to the Preliminary Condominium Map), on August 20, 2019. At that same
meeting, the EVPC forwarded a recommendation of approval of the Preliminary Condominium
Map to the Town Board.
This is the Preliminary Condominium Map, which requires an EVPC review and approval
recommendation to the Town Board. Staff notes the Preliminary Condominium map is nearly
identical to the Development Plan.
Restrictive Covenant:
As the Board is aware, incentivized workforce housing projects are required by EVDC to be
accompanied by a set of either deed restrictions or restrictive covenants, approvable by the
Town, to ensure long-term compliance with the workforce restrictions. The EVDC section reads
in part as follows:
"The Restrictive Covenant and Agreement shall be in a form acceptable to the Town or
County Attorney. Upon approval by the Town or County Attorney, the Restrictive
Covenant and Agreement shall be subject to review by the decision-making body with
the associated preliminary subdivision . . . ." § 11.4(E)(4)(b).
A Restrictive Covenant and Agreement document has been under review for The Meadow
Condominium development at Wildfire; the same restrictive covenants would also apply to The
Divide Condominium development.
The Town Attorney has compiled the Restrictive Covenant and Agreement document included
herein as Attachment 9. Staff, including legal staff, support this document and recommend its
approval. Staff’s goal has been for the covenants to reliably ensure that workforce housing
remains workforce housing, and is not transferred, without notice to the Town, to buyers who do
not qualify for the program.
The applicants have expressed concern about some of the provisions in the Town-
recommended Covenant document - in particular, the requirement for a Second Deed of Trust
securing a $10 promissory note - and have provided an alternate version with a different
approach to ensuring compliance with the workforce restriction that does not involve a Deed of
Trust. The applicants’ team has asked that their alternative Covenant document, along with
several documents supporting that document, be provided to Town Board. These alternative
and related documents are included as Attachments 4 through 8. The Wildfire applicants’
version appears as Attachment 5, with Attachment 6 as a redline/strikeout comparison with the
Town-proposed version. (Please note that the final Town version, Attachment 9, may have
minor differences from the version compared in Attachment 6.)
As this covenant discussion is essentially a legal one, Planning staff will defer to the Town
Attorney for additional review and discussion following the close of our staff presentation on the
plat.
It is suggested that if the Board prefers to depart from the Town Attorney-presented covenant
version, an overall decision on the plat be continued to your Oct. 22, 2019 Board meeting so
that revised covenant language can be worked out.
36
132
Review Process:
Preliminary Condominium Maps require review and action under the EVDC, Chapter 10,
Subdivisions. Specifically, under Section 10.5.H., which applies to “Townhome Projects,
Condominiums, and Other Forms of Airspace Subdivisions.”
Review Criteria:
Depending upon the complexity of the project, this section may be a brief summary of the
standards of review or may involve a more detailed analysis of the standards based upon issues
relevant to any particular project.
1. Buildings and Lots. The applicant proposes 9 buildings with 72 total units. 100% of
units will be dedicated as workforce housing. All buildings conform to setback, height,
and density requirements.
2. Landscaping. The project is required to plant a minimum buffer of 15 feet along the
entire street frontage to include 1 tree for each 40 lineal feet and 1 shrub for every 15
lineal feet. The applicant meets this requirement.
A minimum buffer of 8 evergreen trees and 11 shrubs per 100 linear feet of district
boundary between single family and multi-family residential zoning is required. This
requirement has been met.
3. Water. Water is to be provided by the Town of Estes Park Water Division. The Division
has outlined requirements for the development. All comments have addressed by the
applicant.
4. Fire Protection. Estes Valley Fire Protection District provided comments regarding
emergency access. All comments have addressed by the applicant. Additional
requirements related to fire sprinklers and alarms will be addressed at the building
permit stage.
5. Electric. Electric service is to be provided by the Town of Estes Park Power and
Communications Division. The Division’s requirements have been met.
6. Sanitary Sewer. The Upper Thompson Sanitation District has no objections to this
proposal. Additional requirements will apply at time of building permitting.
7. Stormwater Drainage. A drainage study was submitted and reviewed by engineering
staff with the Town of Estes Park Public Works Department with this development.
Public Works has no objection.
8. Access. Access to the site is provided by Wildfire Road from Dry Gulch Road. The
applicant has proposed a left turn lane off of Dry Gulch Road to provide for safe
movement into the development. All infrastructure comments from the Public Works
Department have been satisfied.
9. Sidewalk/Trail. The applicant has proposed an 8’ multi-modal trail along Wildfire Road
to connect to the existing trail at Dry Gulch Road.
10. Parking. The applicant has proposed 154 parking spaces, which complies with parking
requirements within EVDC §7.11.
11. Outdoor Lighting. All lighting will be shielded and deflected downward in compliance
with EVDC §7.9.
12. Comprehensive Plan. This project conforms to goals and policies within the
Comprehensive Plan. Specifically, as follows:
5.1 – Encourage a variety of housing types and pricing.
5.2 – Encourage housing for permanent residents of all sectors of the community
that is integrated and dispersed throughout existing neighborhoods.
5.5 – Provide for mixed-use developments which integrate commercial, housing,
employment, and service needs.
5.7 – Identify affordable housing opportunities on an ongoing basis.
37
133
5.9 – Support the creation of public and private funding sources for affordable
housing.
5.10 – Establish a linkage between new development and the provision of affordable
housing.
8.4 The Town and County will encourage redevelopment and infill as a primary tool
to create a compact community and to prevent sprawl.
Advantages:
Allows for a subdivision consistent with the Estes Valley Development Code.
Provides additional housing for permanent residents of the community in a variety of
housing options.
Provides for much needed workforce housing to benefit residents of the Estes Valley.
Disadvantages:
Increase in traffic in the immediate area.
Action Recommended:
The Estes Valley Planning Commission, on August 20, 2019, unanimously recommended that
the Town Board approve The Divide Condominiums at Wildfire Preliminary Condominium Map.
Finance/Resource Impact:
None
Level of Public Interest
Medium: Public comments have been received, with some expressing no objection, and one
pointing out “disadvantages” to the Wildfire project. The overall project is of relatively high
interest for the Town of Estes Park.
All written comments are posted to www.estes.org/currentapplications.
Sample Motion:
I move for the approval of the Preliminary Condominium Map, The Divide Condominiums at
Wildfire, as presented.
Attachments:
1. Statement of Intent
2. Application
3. Preliminary Condominium Map
4. Restrictive Covenant and Agreement – Recommended by Staff -- (Wildfire Homes DK 9-30-
19 clean)
5. Cover Letter from Atty. Payne
6. Restrictive Covenant Attachment A (Wildfire proposal - clean)
7. Restrictive Covenant Attachment B (Wildfire proposal – redline/strikeout)
8. Bank Opinion on Deed Restriction
9. Letter from Title Company
38
134
SUPPLEMENT TO
WILDFIRE STATEMENT OF INTENT
May 21, 2019
Applicants submit this Supplement to the Wildfire Statement of Intent for the purpose of
clarifying information and explaining revisions to the pending development applications
made as a result of the Staff and agency review:
1. The four Properties that make up the Wildfire Annexation are surrounding by
property within the Town limits and the right-of-way for Dry Gulch Road, but are not an
enclave under State statute.
2. The Townhome Subdivision for the Divide Townhomes at Wildfire is now a part
of the Wildfire Homes Subdivision. The Divide Townhomes are proposed to be
constructed on 26 lots that are smaller than the minimum lot size pursuant to EVDC §
10.5.H.7.c.
3. The Wildfire Homes Subdivision is accompanied by an application for vacation of
approximately the west 705 feet of the existing Wildfire Road right-of-way; the right-of-
way vacation is proposed to occur prior to the dedication of right-of-way for a different
alignment of Wildfire Road on the Wildfire Homes Subdivision plat.
4. The Development Plan for The Meadow Condominiums at Wildfire includes 72
multi-family units of workforce housing; the 72 units include the 42 units allowed as the
Maximum Base Net Density in Table 4-2 of the EVDC plus 30 bonus units (or 71% of
the Maximum Permitted Density Bonus for workforce housing pursuant to EVDC §
11.4.D). Because 100% of the 72 multi-family units will be restricted to workforce
housing, the 9 buildings will be 38 feet tall pursuant to the maximum building height
allowed for workforce housing in the RM Zone District in Table 4-2 of the EVDC.
5. The Development Plan for The Divide Condominiums at Wildfire includes 16
multi-family units of workforce housing; the 16 units equal two times (or 200%) the
Maximum Base Net Density in Table 4-2 of the EVDC as allowed pursuant to the
Maximum Permitted Density Bonus provisions of EVDC § 11.4.D. Because 100% of the
16 multi-family units will be restricted to workforce housing, the 2 buildings will be 38
feet tall pursuant to the maximum building height allowed for workforce housing in the
RM Zone District in Table 4-2 of the EVDC.
6. The Development Plans for The Meadow Condominiums and The Divide
Condominiums are both accompanied with applications for preliminary subdivision plats
pursuant to EVDC § 10.5.H.
39
135
2
7. A restrictive covenant for the purpose of assuring the long-term availability of the
workforce housing units in The Meadows Condominiums and The Divide
Condominiums As required by EVDC § 10.4.E.4., will be reviewed by the Town Board
with the preliminary subdivision plats for The Meadows Condominiums and The Divide
Condominiums.
8. Parcel C is included within the boundaries of the Northern Colorado Water
Conservancy District (“NCWCD”) and the Municipal Subdistrict. The owners of Parcels
A, B and D consent to the inclusion of their Properties into the NCWCD and, as
applicable, into the Municipal Subdistrict, and such owners have executed and
submitted petitions for such inclusions. The NCWCD approved the petitions on May 9,
2019.
9. A preannexation agreement has been submitted and is under review by the
Town Attorney. The Wildfire Preannexation Agreement will be on the Town Board’s
agenda the same night as the public hearing on the Wildfire Homes Annexation.
10. The previously requested waiver 1) has been revised in response to comments
from Public Works dated April 27, 2019, to increase the turn lane redirect taper length
from 160 feet to 266 feet in length.
40
136
WILDFIRE
STATEMENT OF INTENT
For Submittal on 4-18-19
BACKGROUND
Westover Construction, Inc. (“Westover”), Wildfire Development, LLC (“Wildfire”), RDA
Associates, LLC (“RDA”) and Crossroads Ministry of Estes Park, Inc. (“Crossroads”),
(referred to collectively herein as the “Petitioners”) are the owners of the Properties
described on the four exhibits attached hereto:
Exhibit A (“Parcel A” or the “Westover Property”);
Exhibit B (“Parcel B” or the “Wildfire Property”);
Exhibit C (“Parcel C” or the “RDA Property”); and
Exhibit D (“Parcel D” or the “Crossroads Property”).
The Properties are located in the northwest quarter of Section 20, Township 5 North,
Range 72 West of the 6th P.M., lying west of Dry Gulch Road, about ½ mile north of US
34 in the North End Planning Area of the Estes Valley. Although once on the very edge
of the Town, the Properties are surrounded by residential uses of various types and
densities within the Town limits. South of the Properties is an Estate (“E”) zoned
neighborhood (1/2 acre minimum) called Lone Pine Acres which was annexed to Estes
Park and developed in the 1960’s. To the southwest is the Ranch Meadows
Condominiums in the RM Multi-Family Residential zone district (“RM”) of the Town, and
to the west is the Reserve in the E-1 Estate (“E-1”) zone. North of the Properties is
Vista Ridge, an approximately 6-acre Estes Park Housing Authority project of 59
affordable and market rate condominiums, and The Neighborhood, an approximately
10-acre subdivision that includes small single-family lots and the Salud Family Health
Center on Dry Gulch Road. Just north of The Neighborhood are the Talons Pointe
Apartments and the Falcon Ridge Apartments and Townhomes, both of which are also
Estes Park Housing Authority affordable housing projects with a combined 89 units, and
the Good Samaritan Society – Estes Park Village, a senior community with 46 paired
homes, a 34-unit apartment complex and a 24-bed assisted living center.
DEVELOPMENT APPLICATIONS
Petitioners desire to annex the Properties to the Town, and then rezone and subdivide it
for the development of a variety of single family homes, townhomes and condominiums
to provide additional housing options in the Estes Valley in a manner that is compatible
with the surrounding neighborhood. Specifically, the applications submitted are as
follows:
1. Wildfire Homes Annexation of all four of the Properties, a total of 16.802 acres.
41
137
2
2. Wildfire Homes Rezone from the current zonings of: O Office (“O”), E Estate
(“E”), RE Rural Estate (“RE”) and CH Heavy Commercial (“CH”), to a
combination of: O Office (“O”), E Estate (“E”), R Single Family Residential (“R”),
and RM Multi-Family Residential (“RM”).
3. Wildfire Homes Subdivision is proposed to include 14 single family lots (six ½-
acre lots in the E zone, eight ¼-acre lots in the R zone), a townhome project
(The Divide Townhomes at Wildfire which is noted as Block 2 of this subdivision),
two lots for workforce housing condominium projects (The Meadow
Condominiums at Wildfire and the Divide Condominiums at Wildfire), 6 outlots for
drainage and other purposes, and one lot in the O zone for the relocation of
Crossroads Ministry of Estes Park, Inc. The existing commercial construction
operation now located on Parcel B will be relocated to a location outside of the
Properties.
4. Development Plan for The Meadow Condominiums at Wildfire (9 buildings, 8
units/building) on Lot 1 of the Wildfire Homes Subdivision meeting the current
EVDC definition of Workforce Housing Units.
5. Development Plan for The Divide Condominiums at Wildfire (2 buildings, 8
units/building) on Lot 16 of the Wildfire Homes Subdivision meeting the current
EVDC definition of Workforce Housing Units..
6. Townhome Subdivision for The Divide Townhomes at Wildfire a subdivision
of Block 2 of the Wildfire Homes Subdivision into 26 townhome lots meeting the
current EVDC definition of Workforce Housing Units
Petitioners believe that the housing they intend to provide is compatible with the
surrounding residential neighborhoods and needed to help provide additional housing
options for the residents of the Estes Valley.
PROJECT DESCRIPTION:
The units shall be eligible for the Maximum Permitted Density Bonus (Sec. 11.4.D) if at
least one (1) resident in each housing unit annually submits an affidavit, including a
copy of a W-2 form, to the Town certifying that the resident is employed within the Estes
Park School District R-3 Boundary Map). The Wildfire project is a 128-Unit
development of approximately 16 acres. The Wildfire Homes Subdivision will create six
Outlots (A,B,C,D,E and F) to provide transitions between internal density and zoning
changes. The total acreage of these Outlots is approximately 1.06 acres.
Annexation of the Properties is also proposed. Currently, the limits of the Town of Estes
Park surround the Properties and the perimeter of the Wildfire Homes Annexation as
proposed is 4611 feet long. Right-of-Ways are proposed as necessary on both Wildfire
Road and Dry Gulch Road for dedication of access to the proposed development. At
42
138
3
this time, there is no additional right of way width proposed on Wildfire Road, nor Dry
Gulch Road (although it appears that the recently constructed sidewalk along the west
side of Dry Gulch Road may be within the subject property limits). Additional right of
way may be pursued on Dry Gulch Road with the design of the north bound left turn
lane that has been determined to not be required (by LCUASS Standards), but is
proposed to be constructed for safety. Utility Easements are also dedicated for the
current utility needs as well as future needs associated with the buildout of this plan.
At buildout, the housing units in this development will be sold individually and used as
single family housing. HOA(s) are being formed and Covenants also formed for the
proposed use and care of the common spaces and improvements. The right of way for
Wildfire Road and the internal looping road will be dedicated to the Town for
maintenance.
ACCESS:
Currently the southern 9 acre lot (Parcel C) is vacant and has no internal roads. Parcel
C is adjacent to the Wildfire Road right of way for access as well as adjacent to the
internal road in Lone Pine Subdivision (North Ridge Lane). No daily access to North
Ridge Lane is proposed and only emergency access is proposed there. Emergency
access is also proposed at the southeast corner of the internal loop road. All lots that
are proposed have frontage on a public street or front on a private access easement
(Lots 2, 3, 4 and 5). Outlot B on the west side of the loop road is also for access that
would (in the future) possibly connect to properties to the west in the Reserve
Subdivision. This area adjacent to the west side of the Wildfire Homes Development is
in a Conservation Easement that does not allow roads; therefore, no physical road is
proposed. The ground there is relatively flat and can be accessed in an absolute
emergency. The Traffic Impact Study (attached with this submittal) has shown that
there is not a requirement for the left turn lane at Dry Gulch Road and Wildfire Road.
This development has planned for that and it is indicated as proposed for construction
with this submittal. A preliminary design for that improvement is also included herein.
It is a somewhat complicated improvement given the alignment of the current road, the
large storm sewer catch basin in the southwest quadrant, and the steep (retaining wall)
slope to the east with the floodplain of Dry Gulch Creek nearby. Additional right of way
is not felt absolutely necessary, but would be helpful to decrease the cost of that
possible improvement. A Traffic Memo has been submitted and the formal Traffic
Impact Study is also now included. Fire truck access is adequate for the appropriate
wheel base truck length and is shown specifically on the attached development sheets.
The steepest new internal main road profile grade is less than an 11% slope which
meets the EVDC. As mentioned above, emergency access loops are also proposed to
mitigate the possible long cul-de-sac concern.
Pedestrian access is provided with a looping sidewalk paralleling both sides of the
internal looping road as well as a detached sidewalk generally following the south side
of Wildfire Road leading to the large sidewalk on the west side of Dry Gulch Road.
Bicycle traffic is expected to share the road system in this subdivision as no individual
bicycle lanes are proposed.
43
139
4
OPEN SPACE:
This project includes six Outlots and other areas of open space as shown on the
attached designs. There are no outstanding or noticeable specific features on this site
(like wetlands, or rock outcrops, or significant trees).
UTILITIES:
This property is currently adjacent to all the main utilities. The main lines will be tied into
and extended for use by the proposed condominiums, Townhomes and single family
lots.
ELECTRIC:
Contact has been made with the Town of Estes Park Light & Power Department as well
as an Electric Engineer. The current plan is to come off of the existing three phase
power along the west line with drops to transformers to serve the western portions of
this subdivision. All proposed electric lines will be buried. The same plan is true for the
southern line which is a secondary line. Transformers are shown on the electric utility
plan to serve the units along the southern side of the development with all buried lines.
There has been some preliminary discussion about burying the lines along the south
side of the subdivision (with help from the southern adjoining lot owners in Lone Pine
Subdivision). The poles and service lines along the south line are on or near the Lone
Pine lots. Should a new buried power line be completed, agreements with southern lot
owners would be needed to re-connect their service lines. A 20’ Utility and Drainage
Easement is proposed along this south line within the Wildfire Homes Subdivision for
this utility improvement if an agreement comes together. If an agreement cannot be
made, then the plan as outlined above will move forward.
WATER:
A water main exists to the north of this development within the Neighborhood
Subdivision and the new main lines through this development will connect to that water
main (proposed here between Lots 15 and 16). This subdivision will include a looping
water main running west to east to connect to the existing main in Wildfire Road east of
the circle road. This connection will help to balance pressures in this area of Town.
SEWER:
Upper Thompson Sanitation District controls the sewer lines in this area of Estes Park
and gravity flow main lines are proposed in easily accessible locations to serve the
future units and connect to the existing sewer main line in Wildfire Road east of the
circle road.
PARKING:
The EVDC parking quantities are proposed or exceeded with this development. Internal
parking is provided on the ground floor of the 8-plexes (8 in each building), and
additional outside parking is also proposed. Code required parking for the proposed
multi-family and townhome units collectively is 239 spaces, while 251 spaces are being
provided. The Crossroads land use currently has 22 spaces and operates acceptably.
The proposed Crossroads site is planned to have 25 spaces.
44
140
5
STORMWATER:
Given that this property is close to a river (Dry Gulch Creek), and there are established
roadside ditches along Wildfire Road, the main drainage changes are higher on the lot
in the area where stormwater features are not currently present. A Preliminary
Drainage Report meeting the requirements of the Larimer County Stormwater
Management Manual is included with this submittal. Also, two relatively large detention
ponds (with outlet structures) are proposed to the north and south of the proposed
looping road. These detention ponds provide open space for the development and also
hold back the difference between historic runoff and the increased runoff from the
increased hard surfacing associated with this proposal. The ponds are provided with
relatively shallow side slopes in at least one direction for animal and public safety. The
net result downstream is that no increase in flow (Cubic Feet per Second) is proposed
to Dry Gulch Creek. Of course, disturbed areas will be seeded and mulched to promote
grass growth and to minimize erosion and look aesthetically pleasing.
SCHEDULE:
One general phase is proposed for buildout. A consecutive approach is planned for
construction. The current plan is to work from higher density (Townhomes) to the
Condominium units, and then single family lots. The units are planned to be built
simultaneously or consecutively without any delay following the over-lot grading, and
installation of roads and utility main lines.
CODE WAIVERS:
All of the appropriate Utility District, EVDC and other standards for development
(requirements) are met with this submittal except for the following three (3) items:
1) Redirect Taper length for north portion of the turn lane at Dry Gulch Road and
Wildfire Road. As mentioned above, this turn lane is not required by the cited
standard, but is proposed by the developers for safety of the future residence.
The taper and striping lengths for this proposed improvement equal or exceed
the similar left turn lane recently constructed just 500’ north of the proposed left
turn lane.
2) Appendix D.lll.B.6 where shared single family driveways may be shared by up to
four units. Lots 2-6 are proposed to share the driveway in the access easement
proposed. Lot 6 could access from Divide Circle, however not as safe as
accessing on the private driveway.
3) Multi-modal path detached and located on the south side of Wildfire Road. This
concrete walk is proposed at 8’ wide. Federal Standards (AASHTO) suggests a
10’ width. Reasoning for this waiver is limited right of way (some of the sidewalk
area is proposed in easements), site disturbance is limited with a smaller path
(keeping the roadside ditches along Wildfire Road), the uncommon (non-existing)
occurrence in Estes Park of a multi-modal path in a residential subdivision, and
most importantly, this proposed 8’ path connects to the existing ‘downstream’
45
141
6
path along the west side of Dry Gulch Road (recently constructed trail system
connection to the Town).
46
142
7
Exhibit A
to Statement of Intent
Description of “Parcel A” or the “Westover Property”
owned by Petitioner,
Westover Construction, Inc.
Current zoning: RE Rural Estate Zoning District
Address: 1851 Wildfire Road, Estes Park, CO 80517
Parcel Number: 25200-00-016
Legal Description:
A TRACT OF LAND LOCATED IN THE NW1/4 OF SECTION 20, TOWNSHIP 5
NORTH, RANGE 72 WEST OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED
AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SAID
SECTION 20, AS PRESENTLY MONUMENTED BY A G.L.O. BRASS CAP WITH ALL
BEARING RELATIVE TO THE WEST LINE OF SAID NW1/4, CONSIDERED AS
BEARING NORTH 01 DEGREES 40 MINUTES 11 SECONDS EAST THENCE NORTH
01 DEGREES 40 MINUTES 11 SECONDS EAST A DISTANCE OF 326.64 FEET TO
THE TRUE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES 47 MINUTES 30
SECONDS EAST A DISTANCE OF 362.39 FEET; THENCE NORTH 01 DEGREES 40
MINUTES 11 SECONDS EAST A DISTANCE OF 300.65 FEET; THENCE NORTH 89
DEGREES 48 MINUTES 19 SECONDS WEST A DISTANCE OF 362.39 FEET TO A
POINT ON THE WEST LINE OF SAID SECTION 20; THENCE SOUTH 01 DEGREES
40 MINUTES 11 SECONDS WEST A DISTANCE OF 300.56 FEET ALONG THE
WEST LINE OF SECTION 20 TO THE TRUE POINT OF BEGINNING. EXCEPT THAT
PORTION OF THE ABOVE DESCRIBED PROPERTY DEDICATED TO PUBLIC USE
AS DESCRIBED IN DEED OF DEDICATION RECORDED OCTOBER 16, 1978 IN
BOOK 1899 AT PAGE 114. COUNTY OF LARIMER, STATE OF COLORADO
47
143
8
Exhibit B
to Statement of Intent
Description of “Parcel B” or the “Wildfire Property”
owned by Petitioner,
Wildfire Development, LLC
Current zoning: CH Heavy Commercial Zoning District
Address: 1753 Wildfire Road, Estes Park, CO 80517
Parcel Number: 25200-00-015
Legal Description:
A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 20,
TOWNSHIP 5 NORTH, RANGE 72 WEST OF THE 6TH P.M., MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST 1/4 CORNER OF SAID SECTION 20 AS PRESENTLY
MONUMENTED BY A G.L.O. BRASS CAP, WITH ALL BEARINGS RELATIVE TO THE
WEST LINE OF THE NORTHWEST 1/4 OF SAID SECTION 20, CONSIDERED AS
BEARING NORTH 01 DEGREES 40 MINUTES 11 SECONDS EAST; THENCE
NORTH 01 DEGREES 40 MINUTES 11 SECONDS EAST A DISTANCE OF 326.64
FEET, THENCE SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST A
DISTANCE OF 362.39 FEET TO THE TRUE POINT OF BEGINNING, THENCE
CONTINUING SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST A DISTANCE
OF 343.15 FEET; THENCE NORTH 00 DEGREES 11 MINUTES 41 SECONDS EAST
A DISTANCE OF 300.63 FEET; THENCE NORTH 89 DEGREES 48 MINUTES 19
SECONDS WEST A DISTANCE OF 335.41 FEET; THENCE SOUTH 01 DEGREES 40
MINUTES 11 SECONDS WEST A DISTANCE OF 300.65 FEET TO THE TRUE POINT
OF BEGINNING, EXCEPT THAT PORTION DEDICATED FOR PUBLIC USE IN THE
DEED OF DEDICATION RECORDED OCTOBER 16, 1978 IN BOOK 1899 AT PAGE
114, ALSO KNOWN AS TRACT 2, HILLERY PARRACK EXEMPTION, COUNTY OF
LARIMER, STATE OF COLORADO
48
144
9
Exhibit C
to Statement of Intent
Description of “Parcel C” or “RDA Property”
owned by Petitioner,
RDA Associates, LLC
Current zoning: E Rural Estate Zoning District
Address: vacant property
Parcel Number: 25200-00-007
Legal Description:
A PORTION OF THE NW1/4 OF SECTION 20, TOWNSHIP 5 NORTH, RANGE 2
WEST OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE W1/4 CORNER OF SAID SECTION 20, MONUMENTED BY A
BRASS CAPPED PIPE WITH ALL BEARINGS RELATIVE TO THE SOUTH LINE OF
SAID NW1/4 OF SECTION 20 CONSIDERED AS BEARING SOUTH 89 DEGREES 47
MINUTES 30 SECONDS EAST AND THE TRUE POINT OF BEGINNING; THENCE
SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST AND THE TRUE POINT OF
BEGINNING; THENCE SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST
1506.46 FEET TO A BRASS CAPPED PIPE; THENCE NORTH 18 DEGREES 25
MINUTES 33 SECONDS EAST 236.97 FEET TO THE SOUTH RIGHT OF WAY LINE
OF WILDFIRE LANE; THENCE SOUTH 77 DEGREES 53 MINUTES 15 SECONDS
WEST 163.92 FEET ALONG THE SOUTH RIGHT OF WAY LINE OF WILDFIRE LANE;
THENCE ALONG A TANGENT CURVE TO THE RIGHT 225.13 FEET, SAID CURVE
HAS A DELTA ANGLE OF 29 DEGREES 59 MINUTES 26 SECONDS A RADIUS OF
430.10 FEET, AND A CHORD BEARING NORTH 87 DEGREES 52 MINUTES 33
SECONDS WEST 222.57 FEET; THENCE NORTH 72 DEGREES 52 MINUTES 50
SECONDS WEST 250.00 FEET; THENCE ALONG A CURVE TO THE LEFT 288.62
FEET SAID CURVE HAS A DELTA ANGLE OF 16 DEGREES 59 MINUTES 13
SECONDS A RADIUS OF 973.48 FEET AND A CHORD BEARING NORTH 81
DEGREES 22 MINUTES 27 SECONDS WEST 287.56 FEET; THENCE NORTH 89
DEGREES 52 MINUTES 03 SECONDS WEST 666.81 FEET TO THE WEST LINE OF
THE NW1/4 OF SAID SECTION 20; THENCE LEAVING THE SOUTH RIGHT OF WAY
LINE OF WILDFIRE LANE SOUTH 01 DEGREES 35 MINUTES 08 SECONDS WEST
326.57 FEET ALONG THE WEST LINE OF THE NW1/4 OF SAID SECTION 20 TO
THE POINT OF BEGINNING.
COUNTY OF LARIMER, STATE OF COLORADO
49
145
10
Exhibit D
to Statement of Intent
Description of “Parcel D” or “Crossroads Property”
owned by Petitioner,
Crossroads Ministry of Estes Park, Inc.
Current zoning: O Office Zoning District
Address: 851 Dry Gulch Road, Estes Park, CO 80517
Parcel Number: 25200-00-910
Legal Description:
A PARCEL OF LAND IN THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 5 NORTH, RANGE
72 WEST OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED AS:
BEGINNING AT A POINT FROM WHENCE THE WEST QUARTER CORNER OF
SECTION 20 BEARS NORTH 89 DEGREES 46 MINUTES WEST 1506.3 FEET,
THENCE NORTH 18 DEGREES 26 MINUTES EAST 395.8 FEET, THENCE SOUTH
89 DEGREES 59 MINUTES EAST 161 FEET, THENCE SOUTH 1 DEGREE 46
MINUTES WEST 377 FEET, THENCE NORTH 89 DEGREES 46 MINUTES WEST
274.4 FEET TO THE POINT OF BEGINNING, EXCEPT THAT PORTION CONVEYED
IN DEED RECORDED SEPTEMBER 29, 1983 IN BOOK 2239 AT PAGE 1089 AND
SHOWN IN DEED RECORDED APRIL 22, 1986 AS RECEPTION NO. 86020283.
COUNTY OF LARIMER, STATE OF COLORADO.
50
146
51147
RecordOwner(s)MailingAddressPhoneEmailContactInformationApplicantMailingAddressPhoneEmailConsultantlEngineerMailingAddressPhoneEmailMINERALRIGHTCERTIFICATIONArticle65.5ofTitle24oftheColorado RevisedStatutesrequiresapplicantsforDevelopmentPlans!SpecialReviews,Rezoning,PreliminaryandFinalSubdivisionPlats,MinorSubdivision Platsifcreatinganewlot,andPreliminaryandFinalCondominiumMapstoprovidenoticeofthe applicationandinitialpublichearingtoallmineralestateownerswherethesurfaceestateandthe mineralestatehavebeensevered.Noticemustbegiven30dayspriortothefirsthearingonanapplicationfordevelopmentandmeetthestatutoryrequirements.IherebycertifythattheprovisionsofSection24-65.5-103CRShavebeqnmetNames:RecordOwnerPLEASEPRINT:ApplicantP____________________________________Signatures:_______________Date_3J’//’RecordOwnerDate.3,///‘tApplicant/—OWNER&APPLICANTCERTIFICATIONAsOwner,IcertifytheinformationandexhibitsherewithsubmittedaretrueandcorrecttothebestofmyknowledgeandIamtherecordowneroftheproperty.frAsApplicant,IcertifytheinformationandexhibitsherewithsubmittedaretrueandcorrecttothebestofmyknowledgeandinfilingtheapplicationIam actingwiththeknowledgeandconsentoftherecordowner(s)oftheproperty.IgrantpermissionforTownofEstesParkemployees,reviewingagencystaff,PlanningCommissioners,membersoftheTownBoardofTrustees,orLarimerCountyCommissionerswithproperidentificationaccesstomyppertyduringthereviewofthisapplication.IacknowledgeIhavereceivedtheEstesValleyDevelopmentReviewApplicationScheduleandamawarethatfailuretomeetthedeadlinesshownonsaidschedulemay resultinmyapplicationbeyingdelayedoranyapprovalofmyapplicationbecomingnullandvoid.Names:Applicant PLEASEPRINT:1/LA—.tCI4L/4rRecordOwnerPLEASignatures:____________________________RecordOwner_____________Date1’________Date_______Applicant______________________________________________________Revised20110109KT52148
53
149
54150
55151
56152
57153
DMWEST 36838200v6
RESTRICTIVE COVENANT AND AGREEMENT
THIS RESTRICTIVE COVENANT AND AGREEMENT (“Agreement”) dated as of
___________________, 20_ (the “Effective Date”) is entered into by and between
_______________________________ (the “Owner”) and the Town of Estes Park (the “Town”),
a Colorado Municipal Corporation, on the Effective Date stated herein.
RECITALS
Section 11.4.C. of the Estes Valley Development Code (“EVDC”) provides that a property
owner may receive a density bonus with respect to “workforce” housing. The Owner has obtained
approval from the Town for the development of __________ multi-family structures consisting of
______ Residential Units as set forth in the Development Plan for [The Meadows
Condominiums][The Divide Condominiums].1 Such approval includes the density bonus which
requires that the Residential Units be subject to the restrictive covenants set forth in this Agreement
to assure occupancy of the Residential Units qualifies them as workforce housing.
IN WITNESS WHEREOF, in consideration of the foregoing Recitals, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby declare that the Property (as hereinafter defined) shall be held, sold, occupied and conveyed
subject to the following covenants, restrictions, and conditions, all of which shall be covenants
running with the land and which covenants, restrictions, and conditions shall be binding on all
parties having any right, title, or interest in the Property, or any part thereof.
Definitions.
“Change of Status” means the Qualified Workforce Occupant no longer
meets the requirement set forth in Section 6.1(a) of this Agreement.
“First Deed of Trust” means a recorded deed of trust or mortgage which is
senior to any other deeds of trust or liens against the Property (other than the lien for real
estate taxes and homeowner association assessments), and which is used to secure a loan
from an Institutional Lender to purchase a Residential Unit.
“Institutional Lender” means any bank, savings and loan association, or any
other lender which is licensed to engage in the business of providing purchase money
mortgage financing on residential real property.
“Occupancy Certification” means a certification in the form attached hereto
as Exhibit B (or such other form as may be approved by the Town) to be executed by the
person(s) executing a Rental Agreement as occupants.
“Occupancy Limit” means one plus two times the number of bedrooms in
the Residential Unit.
1 NOTE TO DRAFT; This Agreement will be replicated for each of the 2 projects, as applicable. All units within
Meadow and Divide Condominium projects will be identifies as the “Property” subject to this covenant.
58
154
2
“Occupancy Requirements” is defined in Section 6.1.
“Owner” means ________________________ and any subsequent
transferee, assignee, or successor in title to the Property or any portion thereof, including
any Residential Unit.
“Property” means the real property described in Exhibit A.
“Qualified Workforce Household” is defined in Section 6.1(a).
“Rental Agreement” is defined in Section 6.4.
“Residential Unit” means a residential unit located on the Property.
“Workforce Housing Unit” means a Residential Unit, the occupancy of
which is restricted to a Qualified Workforce Household.
“Term” is defined in Section 5.1.
Other definitions may appear in the Agreement.
Purpose. The purpose of this Agreement is to enforce the restrictions in the EVDC
in effect as of the Effective Date that apply to the Property in connection with the grant of the
density bonus for workforce housing.
Recording and Filing; Covenants to Run with the Land.
Recording, Covenants Run with the Land. This Agreement shall be placed
of record in the real property records of Larimer County, Colorado, being the county in
which the Property is located and except as otherwise provided herein, the covenants
contained herein shall run with the land and shall bind, and the benefits shall inure to,
respectively, the Owner and its successors and assigns, and the Town and its successors
and assigns, and all subsequent owners of the Property or any interest therein during the
Term. The Property and each Residential Unit shall be held, conveyed, hypothecated,
encumbered, leased, rented and occupied subject to the covenants, restrictions and
limitations set forth herein, which are intended to constitute both equitable servitudes and
covenants running with the land. Any buyer or transferee of a Residential Unit or any
portion thereof, by acceptance of a deed therefore, or by the signing of a contract or
purchase agreement to purchase the same, shall, by acceptance of such deed or by the
signing of such contract or agreement, be deemed to have consented to and accepted the
covenants, conditions, restrictions and limitations set forth herein, whether or not there is
any express reference to this Agreement in such deed or contract.
Satisfaction of Requirements. The Owner agrees that any and all
requirements of the laws of the State of Colorado to be satisfied in order for the provisions
of this Agreement to constitute restrictive covenants running with the land shall be deemed
to be satisfied in full, and that any requirements of privity of estate are intended to be
satisfied, or in the alternate that an equitable servitude has been created to ensure that these
59
155
3
restrictions run with the land. During the Term, each and every contract, deed or other
instrument hereafter executed conveying the Property or portion thereof shall expressly
provide that such conveyance is subject to this Agreement, provided, however, the
covenants contained herein shall survive and be effective as to successors and assigns of
all or any portion of the Property, regardless of whether such contract, deed or other
instrument hereafter executed conveying the Property or portion thereof provides that such
conveyance is subject to this Agreement.
Representations, Covenants and Warranties of the Owner. On the Effective Date,
the Owner covenants, represents and warrants as follows:
Organization. The Owner is duly organized under the laws of the State of
Colorado, and is qualified to transact business under the laws of the State.
Good Title. The Owner has good and marketable title to the Property.
Consistency Requirement. The Owner has not and will not execute any
other agreement with provisions contradictory to, or in opposition to, the provisions hereof,
and in any event, the requirements of this Agreement are paramount and controlling as to
the rights and obligations herein set forth and supersede any other provisions in conflict
herewith.
Required Consents. The Owner will obtain the written consent of any prior
recorded lienholder on the Property to this Agreement prior to the first application for any
development permit (i.e. grading or building) for the Property.
Term of Agreement.
Term. In accordance with the requirements of the EVDC, this Agreement
shall remain in effect for each Residential Unit on the Property for a period of fifty (50)
years from the Effective Date (the “Term”).
Termination. Upon expiration of the Term, this Agreement and each of its
provisions shall terminate without further action by the parties. On and after expiration of
the Term, upon the written request of any current owner of the Property, the Town shall
promptly execute and deliver to such owner a statement of termination of this Agreement
in recordable form which may recorded by such owner, but the Agreement shall terminate
whether or not any such statement is recorded.
Restrictions on Use and Occupancy.
Restriction on Occupancy. Each occupied Residential Unit shall be
occupied as a Workforce Housing Unit (the “Occupancy Requirements”).
Qualified Workforce Household Definition. A “Qualified Workforce
Household” means the occupants of a Residential Unit that are either (i) members of a
family unit related by blood, marriage or adoption, or (ii) unrelated individuals living
together whose number does not exceed the Occupancy Limit, in each case who occupy
60
156
4
the Residential Unit; where all occupants have common access to and common use of all
living and eating areas and all facilities for the preparation and serving of food within the
Residential Unit; and where at least one adult (eighteen years old or older) who occupies
the Residential Unit as his or her principal residence is employed (or self-employed) for an
average of at least thirty hours per week on an annual basis within the boundaries of the
Estes Park School District R-3 (such employed occupant is referred to as a “Qualified
Workforce Occupant”).
Transition Rules:
A person age 65 years or older who was a Qualified
Workforce Occupant for at least seven (7) consecutive years ending on the
date such person attained the age of 65 years shall continue to be regarded
as a Qualified Workforce Occupant and, in the event of the death of such
person, his or her spouse will be considered a Qualified Workforce
Occupant, for so long as he or she continuously occupies the Residential
Unit as his or her primary residence.
If, after the occupancy of the Residential Unit has
commenced by the members of a Qualified Workforce Household, the
status of a Qualified Workforce Occupant changes so that such person is no
longer considered to be a Qualified Workforce Occupant, such person and
the other persons occupying the Residential Unit shall continue to be
considered to constitute a Qualified Workforce Household until termination
of the Rental Agreement, if any, or for one year from the date of the Change
of Status of the Qualified Workforce Occupant, whichever occurs first,
unless a longer period of occupancy is authorized in writing by the Town
due to extraordinary circumstances as described in Section 6.5 or another
member of the Qualified Workforce Household becomes a Qualified
Workforce Occupant within such time.
Restrictions on Short Term or Vacation Rental. Each Residential Unit shall
not be rented, leased or furnished for tenancies of less than thirty (30) days.
Maintenance. The Owner shall maintain the Residential Unit in a good, safe,
and habitable condition in all respects, except for normal wear and tear, and in full
compliance with all applicable laws, ordinances, homeowner covenants or rules and
regulations of any governmental authority with jurisdiction over matters concerning the
condition of the Residential Unit. The Owner shall not allow any mechanic’s liens to be
recorded against the Residential Unit.
Rental Agreements. In the event a Residential Unit is rented, leased or
licensed by the Owner, and the Owner does not then occupy the Residential Unit as part of
a Qualified Workforce Household, such Residential Unit shall be rented to occupants
pursuant to a written rental agreement (a “Rental Agreement”) that provides a rental term
of at least six months and not more than one year (except that a Rental Agreement may
provide that its term ends on the last day of the month that includes the one-year
61
157
5
anniversary of the commencement of the Rental Agreement) and which requires the
occupants to constitute a Qualified Workforce Household on the date of execution of the
Rental Agreement and during the term of the Rental Agreement. The form of Rental
Agreement to be utilized by the Owner shall provide for termination of the Rental
Agreement and the consent by the occupants for immediate commencement of eviction
proceedings as a result of any knowing material misrepresentation with respect to the
Occupancy Requirements made by the person or persons executing the Rental Agreement.
Each Rental Agreement shall prohibit occupancy or use of the Residential Unit as a short
term or vacation rental as defined in the EVDC or the Town’s Municipal Code including
amendments thereto. Each Rental Agreement shall prohibit assignment or subleasing
without the consent of the Owner which consent must be denied unless after the assignment
or sublease, the occupants will constitute a Qualified Workforce Household. Nothing
contained in this agreement shall prohibit the Owner from entering into one or more master
leases of Residential Units with terms in excess of one year provided that each Rental
Agreement entered into pursuant to the master lease satisfies the requirements of this
Agreement.
Relief from Extraordinary Circumstances. The Town may grant an
exception or waiver from the requirements of this Section 6 based upon the written request
of the Owner. Such exception or waiver may be granted by the Town only upon a finding
that: (i) the circumstances justifying the granting of the exception or waiver are unique or
outside of the control of the Qualified Workforce Occupant, and may include involuntary
loss of job, injury, physical disability, or trauma; (ii) a strict application of this Section 6
would result in an extraordinary hardship; and (iii) the exception or waiver is consistent
with the intent and purpose of this Agreement. No exception or waiver shall be granted by
the Town if its effect would be to nullify the intent and purpose of this Agreement. In
granting an exception or waiver of the provisions of this Section 6, the Town may impose
specific conditions of approval, and shall fix the duration of the term of such exception or
waiver.
Compliance, Monitoring and Enforcement.
Annual Verification and Certification Requirement. The Owner shall be
responsible for taking reasonable steps to verify that Qualified Workforce Households
occupy the occupied Residential Unit(s) owned by the Owner in accordance with this
Agreement and shall certify to the Town, upon request, on or before January 31st of each
calendar year that to the best of the Owner’s knowledge, all occupied Residential Units
owned by Owner are occupied in compliance with this Agreement or if not so occupied,
the certification shall describe the steps the Owner is taking to remedy the noncompliance.
All certifications required by this Section shall be in the form and contain all
documentation reasonably required by the Town.
Certification related to Rental Agreements. Each person executing a Rental
Agreement as a non-Owner occupant shall also execute an Occupancy Certification at the
time of execution of the Rental Agreement and each renewal thereof to ensure compliance
with this Agreement. The Owner will deliver to the Town the executed Rental Agreement
and Occupancy Certification as soon as practicable, but in any event within five business
62
158
6
days, which may be done electronically as a facsimile or an image attached to an email. If
the Town determines on the basis of reasonable evidence that (i) any statement on an
Occupancy Certification is substantially untrue and, as a result, the occupants do not meet
the Occupancy Requirements, or (ii) the occupant is not eligible for continuing occupancy
under the transition rules in Section 6.1(b) or for an exception or waiver under Section 6.4,
the Town may notify the Owner within five business days after its receipt of the Rental
Agreement and Occupancy Certifications and the Rental Agreement shall terminate.
Certification upon Transfer. Owner shall notify the City in writing of
Owner’s interest in selling or transferring a Residential Unit at least forty-five (45) days
before the Owner’s desired closing date. No transfer may be closed within this 45-day
period. The notice shall contain either an Occupancy Certification by the buyer or
transferee or an affidavit, in a form acceptable to the Town, pledging their intent not to
occupy the Residential Unit but to enter a Rental Agreement with a Qualified Workforce
Household under Section 6.3.
Further Actions. In addition to its specific agreements and undertakings in
this Agreement, the Owner shall take or cause to be taken all other and further actions
reasonably required by the Town in order to confirm satisfaction of the Occupancy
Requirements.
Rules, Regulations, Standards, and Fees. Upon not less than 30 days prior
written notice to the Owner, the Town shall have the authority to promulgate and adopt
such reasonable rules, regulations, standards, and fees as it may deem appropriate, from
time to time, for the purpose of carrying out its obligations and responsibilities described
herein.
Delegation of Owner Verification. The Owner, and any successors thereto,
may use the services of a property manager or other agent (i.e., an accountant, attorney,
etc.) to assist it in meeting its verification obligations hereunder.
Transfer of Town Administration. The Town will maintain its authority to
contract with or use a third party to assist or manage the Town’s role in the verification and
administration of the occupancy of the Residential Units and the terms of this Agreement.
Enforcement. The Owner hereby grants and assigns to the Town the right
to review the Rental Agreements and enforce compliance with this Agreement.
Compliance may be enforced by the Town by any lawful means, including legal and
equitable relief and including, without limitation, specific performance. Any equitable
relief may be sought singly or in combination with such legal remedies as the Town may
be entitled to under either this Agreement or the laws of the State of Colorado.
If the First Deed of Trust is held or insured by the U.S. Department of
Housing and Urban Development, the Covenant may not be enforced by any of the
following, unless expressly approved in writing by HUD: (a) voiding a conveyance by the
Owner; (b) terminating the Owner’s interest in the Home; (c) accelerating the First Deed
63
159
7
of Trust; (d) increasing the interest rate for the First Deed of Trust; or (e) subjecting the
Owner to contractual liability.
Remedies; Attorney Fees. In the event the Town commences litigation with
respect to any or all provisions of this Agreement, the party that substantially prevails on
the merits shall be awarded reasonable court costs and attorney's fees, including the value
of the Town Attorney’s Office’s time spent on such matter at the rates generally charged
for similar services by private practitioners within the Town.
DEEDS OF TRUST
For each Residential Unit, prior to certificate of occupancy, the Owner must
execute a promissory note secured by a deed of trust in favor of the Town. The form of
these documents will be provided by the Town.
SUBORDINATION AND DEFAULT UNDER A FIRST DEED OF TRUST
Notice of Default. Each Owner agrees to give immediate written notice to
the City (a “Default Notice”) of (a) any action or omission that constitutes a default under
the First Deed of Trust on the Property, including failure to pay amounts due thereunder
within twenty-one days of the due date, and (b) any notice received alleging a default or
commencing foreclosure procedures under a First Deed of Trust on such Owner’s
Residential Unit.
Cure Rights. The Town shall have the right, but not the obligation, in its
sole discretion, to make any payment owed to cure the default underlying the Default
Notice. In such event, the Owner shall be personally liable to the Town for the amounts
so paid by the Town, together with interest thereon at the rate set forth in the note which is
secured by the First Deed of Trust, plus one percentage point, and all actual expenses of
the City incurred in curing the default. The Owner shall be required to execute a
promissory note secured by a deed of trust on the unit in favor of the Town for the amounts
so owed to the City.
Subordination. This Agreement shall be subordinate to any First Deed of
Trust.
Senior to Other Liens. This Agreement shall be senior to any other liens or
encumbrances, and shall survive and not be extinguished by the foreclosure of or deed-in-
lieu of foreclosure regarding any such other liens or encumbrances. This includes, but is
not limited to, assessment liens, tax liens, mechanic’s liens and second priority deeds of
trust.
Homestead Waiver. This Agreement is prior and superior to the Owner’s
right to a homestead exemption under Article XVIII, Section I of the Colorado Constitution
and under Part 2, Article 41, Title 38 of the Colorado Revised Statutes, or any successor
statutes. Each Owner waives his or her homestead rights to the fullest extent that they
conflict with or impair the Town’s rights and remedies under this Agreement.
64
160
8
Colorado Housing and Finance Authority (“CHFA”). For the purposes of
this Agreement, so long as CHFA holds a first deed of trust and a second deed of trust
contemporaneously on the Home restricted by this Covenant, all references in this
Covenant to a first deed of trust shall be deemed to include both CHFA’s first and second
deeds of trust without regard to the recording order of this Agreement or CHFA’s deeds of
trust.
GENERAL PROVISIONS
Notices. Any notice, consent, approval, or request that is required to be
given hereunder shall be given by mailing the same, certified mail, return receipt requested,
properly addressed and with postage fully prepaid as follows:
OWNER:
1
THE TOWN: Town of Estes Park
Attn: Community Development Director
P O Box 1200
Estes Park, CO 80517
Severability. Whenever possible, each provision of this Agreement and any
other related document shall be interpreted in such manner as to be valid under applicable
law. If any provision of this Agreement shall be invalid or prohibited under said applicable
law, such provisions shall be ineffective to the extent of such invalidity or prohibition
without invalidating the remaining provisions of this Agreement.
Governing Law and Jurisdiction. This Agreement and each and every
related document are subject to all applicable federal, state, and Town laws, rules, statutes,
ordinances, and regulations, as now existing or hereafter amended.. Any legal action to
enforce the terms of this Agreement shall be brought in the appropriate court of Larimer
County, State of Colorado.
Binding Agreement. The provisions and covenants contained herein shall
inure to the benefit of and be binding upon the successors and assigns of the Owner and
the Town.
Amendment. Any modifications of this Agreement shall be effective only
when made by a duly executed instrument by the Owner (or its successor) and the Town.
Recordation. Upon execution, this Agreement and any amendment shall be
recorded in the real property records of Larimer County, State of Colorado.
Entire Agreement. This Agreement including the recitals and the exhibits
and attachments constitutes the entire agreement between the parties hereto with respect to
the matters set forth herein. Captions are intended for convenience of reference and shall
not be considered a part of this Agreement.
65
161
9
No Third Party Beneficiaries. This Agreement is made and entered into for
the sole protection and benefit of the Town and the Owner. Except as otherwise
specifically provided for herein, no other person, persons, entity or entities, including
without limitation the occupants of a Residential Unit, shall have any right of action with
respect to this Agreement or right to claim any right or benefit from the terms provided in
this Agreement or be deemed a third party beneficiary of this Agreement.
Non-Liability. The Town and its respective employees, members, officers
and agents shall not be liable to any Owner or third party by virtue of the exercise of their
rights or the performance of their obligations under this Agreement. The Town is relying
on, and does not waive or intend to waive by any provision of this Agreement, the monetary
limitations or any other rights, immunities or protections afforded by the Colorado
Governmental Immunity Act, Section 24-10-101, et seq. C.R.S., as it may be amended, or
any other limitation, right, immunity or protection otherwise available to the Town.
[Signatures appear on following page.]
66
162
10
OWNER:
_____________________________________________________________________
By: _____________________________
__________________, its __________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this ______ day of _______, 20___, by ____________
______________________.
Witness my hand and official seal.
____________________________
Notary Public
TOWN OF ESTES PARK: Approved as to form:
By: _______________________________ _________________________________
Mayor Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this ______ day of _______, 20___, by
___________________ as ________________________ of the Town of Estes Park.
Witness my hand and official seal.
____________________________
Notary Public
67
163
Exhibit A
Exhibit A
(Legal Description of the Property)
68
164
Exhibit B
Exhibit B
FORM OF OCCUPANCY CERTIFICATION
The undersigned (“Applicant”) is making or has made an application to
________________ (the “Owner Representative”) to buy or rent workforce housing unit [____]
(the “Unit”) of the multifamily community known as [The Meadows Condominiums][The
Divide Condominiums], Estes Park, Colorado.
Occupancy of the Unit is limited to persons who comprise a Qualified Workforce
Household as specified in Section 2 below.
Applicant hereby states and affirms to the Town of Estes Park, Colorado under penalties
of perjury that on the date of this Occupancy Certification each of the following is true and
accurate:
All of the persons who will occupy the Unit at any time during the term of the lease
of the Unit are listed below (the “Occupants”). All of the Occupants are either (i) members of a
family unit related by blood, marriage or adoption, or (ii) unrelated individuals living together
whose number does not exceed 3 in the case of a one bedroom Unit, 5 in the case of a two bedroom
unit, or 7 in the case of a three bedroom Unit.
List of Occupants:
_________________________________ _________________________________
_________________________________ _________________________________
_________________________________ _________________________________
_________________________________ _________________________________
The Occupants are / are not members of a family unit related by blood, marriage or
adoption.
_______________________________ (name of the Qualified Workforce
Occupant) is eighteen years old or older, will occupy the Unit as his or her principal residence and
is currently employed (or self-employed) and on the date occupancy is commenced for the Unit
will be employed (or self-employed) for an average of at least thirty hours per week on an annual
basis within the boundaries of the Estes Park School District R-3 as depicted on the attached map
of that district.
69
165
Exhibit B
During the term of the Rental Agreement of the Unit, Applicant will notify the
Owner Representative in writing no later than seven days after any of the statements made in this
Occupancy Certification are not true and accurate (“Change of Status”).2
Dated ____________________________, 20__.
________________________________________
Occupant Signature
________________________________________
Occupant Name (print)
________________________________________
________________________________________
Occupant Address
________________________________________
Occupant phone number
________________________________________
Occupant date of birth (month, day and year)
2 Note that Change of Status will not prohibit the Occupants from continuing to occupy the Unit until the termination
of the Rental Agreement or one year from the Change of Status of the Qualified Workforce Occupant, whichever
occurs first, but may prevent the Rental Agreement of the Unit from being renewed or extended. A Change of Status
does not occur if the Workforce Housing Occupant subsequently attains the age of 65 years and has fully satisfied the
requirements of Section 6.1(b) of the Restrictive Covenant applicable to the Unit.
70
166
Map of Estes Park School District R-3
Map of Estes Park School District R-3
(attached)
71
167
72
168
73
169
DMWEST 38149972v1
NOTICE: NO TRANSFERS OF PROPERTY SUBJECT TO THIS RESTRICTIVE
COVENANT AND AGREEMENT MAY OCCUR WITHOUT DELIVERY OF AN
ACKNOWLEDGEMENT OF COVENANT BY THE GRANTEE ACCEPTED BY THE TOWN
UNDER SECTION 7.3 HEREIN.
RESTRICTIVE COVENANT AND AGREEMENT
THIS RESTRICTIVE COVENANT AND AGREEMENT (“Agreement”) dated as of
___________________, 20_ (the “Effective Date”) is entered into by and between
_______________________________ (the “Owner”) and the Town of Estes Park (the “Town”),
a Colorado Municipal Corporation, on the Effective Date stated herein.
RECITALS
Section 11.4.C. of the Estes Valley Development Code (“EVDC”) provides that a property
owner may receive a density bonus with respect to “workforce” housing. The Owner has obtained
approval from the Town for the development of __________ multi-family structures consisting of
______ Residential Units as set forth in the Development Plan for [The Meadows
Condominiums][The Divide Condominiums].1 Such approval includes the density bonus which
requires that the Residential Units be subject to the restrictive covenants set forth in this Agreement
to assure occupancy of the Residential Units qualifies them as workforce housing.
IN WITNESS WHEREOF, in consideration of the foregoing Recitals, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby declare that the Property (as hereinafter defined) shall be held, sold, occupied and conveyed
subject to the following covenants, restrictions, and conditions, all of which shall be covenants
running with the land and which covenants, restrictions, and conditions shall be binding on all
parties having any right, title, or interest in the Property, or any part thereof.
Definitions.
“Acknowledgement of Covenant” is defined in Section 7.3 of this
Agreement and means an acknowledgement in the form promulgated or otherwise
approved by the Town, in which the buyer or grantee acknowledges the Occupancy
Requirements and agrees to comply with the terms, conditions and covenants of this
Agreement.
“Change of Status” means the Qualified Workforce Occupant no longer
meets the requirement set forth in Section 6.1(a) of this Agreement.
1 NOTE TO DRAFT; This Agreement will be replicated for each of the 2 projects, as applicable. All units within
Meadow and Divide Condominium projects will be identified as the “Property” subject to this covenant.
74
170
2
“Occupancy Certification” means a certification in the form attached hereto
as Exhibit B (or such other form as may be approved by the Town) to be executed by the
person(s) executing a Rental Agreement as occupants.
“Occupancy Limit” means one plus two times the number of bedrooms in
the Residential Unit.
“Occupancy Requirements” is defined in Section 6.1.
“Owner” means ________________________ and any subsequent
transferee, assignee, or successor in title to the Property or any portion thereof, including
any Residential Unit.
“Property” means the real property described in Exhibit A.
“Qualified Workforce Household” is defined in Section 6.1(a).
“Rental Agreement” is defined in Section 6.4.
“Residential Unit” means a residential unit located on the Property.
“Workforce Housing Unit” means a Residential Unit, the occupancy of
which is restricted to a Qualified Workforce Household.
“Term” is defined in Section 5.1.
Other definitions may appear in the Agreement.
Purpose. The purpose of this Agreement is to enforce the restrictions in the EVDC
in effect as of the Effective Date that apply to the Property in connection with the grant of the
density bonus for workforce housing.
Recording and Filing; Covenants to Run with the Land.
Recording, Covenants Run with the Land. This Agreement shall be placed
of record in the real property records of Larimer County, Colorado, being the county in
which the Property is located and except as otherwise provided herein, the covenants
contained herein shall run with the land and shall bind, and the benefits shall inure to,
respectively, the Owner and its successors and assigns, and the Town and its successors
and assigns, and all subsequent owners of the Property or any interest therein during the
Term. The Property and each Residential Unit shall be held, conveyed, hypothecated,
encumbered, leased, rented and occupied subject to the covenants, restrictions and
limitations set forth herein, which are intended to constitute both equitable servitudes and
covenants running with the land. Any buyer or transferee of a Residential Unit or any
portion thereof, by acceptance of a deed therefore, or by the signing of a contract or
purchase agreement to purchase the same, shall, by acceptance of such deed or by the
signing of such contract or agreement, be deemed to have consented to and accepted the
75
171
3
covenants, conditions, restrictions and limitations set forth herein, whether or not there is
any express reference to this Agreement in such deed or contract.
Satisfaction of Requirements. The Owner agrees that any and all
requirements of the laws of the State of Colorado to be satisfied in order for the provisions
of this Agreement to constitute restrictive covenants running with the land shall be deemed
to be satisfied in full, and that any requirements of privity of estate are intended to be
satisfied, or in the alternate that an equitable servitude has been created to ensure that these
restrictions run with the land. During the Term, each and every contract, deed or other
instrument hereafter executed conveying the Property or portion thereof shall expressly
provide that such conveyance is subject to this Agreement, provided, however, the
covenants contained herein shall survive and be effective as to successors and assigns of
all or any portion of the Property, regardless of whether such contract, deed or other
instrument hereafter executed conveying the Property or portion thereof provides that such
conveyance is subject to this Agreement.
Representations, Covenants and Warranties of the Owner. On the Effective Date,
the Owner covenants, represents and warrants as follows:
Organization. The Owner is duly organized under the laws of the State of
Colorado, and is qualified to transact business under the laws of the State.
Good Title. The Owner has good and marketable title to the Property.
Consistency Requirement. The Owner has not and will not execute any
other agreement with provisions contradictory to, or in opposition to, the provisions hereof,
and in any event, the requirements of this Agreement are paramount and controlling as to
the rights and obligations herein set forth and supersede any other provisions in conflict
herewith.
Required Consents. The Owner will obtain the written consent of any prior
recorded lienholder on the Property to this Agreement prior to the first application for any
development permit (i.e. grading or building) for the Property. The Owner will not allow
mechanic’s liens having senior priority to this Agreement to be recorded against the
Property and continue for a period of 45 days without release by the lien claimant or
removal by bond.
Term of Agreement.
Term. In accordance with the requirements of the EVDC, this Agreement
shall remain in effect for each Residential Unit on the Property for a period of fifty (50)
years from the Effective Date (the “Term”).
Termination. Upon expiration of the Term, this Agreement and each of its
provisions shall terminate without further action by the parties. On and after expiration of
the Term, upon the written request of any current owner of the Property, the Town shall
promptly execute and deliver to such owner a statement of termination of this Agreement
76
172
4
in recordable form which may recorded by such owner, but the Agreement shall terminate
whether or not any such statement is recorded.
Restrictions on Use and Occupancy.
Restriction on Occupancy. Each occupied Residential Unit shall be
occupied as a Workforce Housing Unit (the “Occupancy Requirements”).
Qualified Workforce Household Definition. A “Qualified Workforce
Household” means the occupants of a Residential Unit that are either (i) members of a
family unit related by blood, marriage or adoption, or (ii) unrelated individuals living
together whose number does not exceed the Occupancy Limit, in each case who occupy
the Residential Unit; where all occupants have common access to and common use of all
living and eating areas and all facilities for the preparation and serving of food within the
Residential Unit; and where at least one adult (eighteen years old or older) who occupies
the Residential Unit as his or her principal residence is employed (or self-employed) for an
average of at least thirty hours per week on an annual basis within the boundaries of the
Estes Park School District R-3 (such employed occupant is referred to as a “Qualified
Workforce Occupant”).
Transition Rules:
A person age 65 years or older who was a Qualified Workforce
Occupant for at least seven (7) consecutive years ending on the date such person
attained the age of 65 years shall continue to be regarded as a Qualified Workforce
Occupant and, in the event of the death of such person, his or her spouse will be
considered a Qualified Workforce Occupant, for so long as he or she continuously
occupies the Residential Unit as his or her primary residence.
If, after the occupancy of the Residential Unit has commenced by
the members of a Qualified Workforce Household, the status of a Qualified
Workforce Occupant changes so that such person is no longer considered to be a
Qualified Workforce Occupant, such person and the other persons occupying the
Residential Unit shall continue to be considered to constitute a Qualified Workforce
Household until termination of the Rental Agreement, if any, or for one year from
the date of the Change of Status of the Qualified Workforce Occupant, whichever
occurs first, unless a longer period of occupancy is authorized in writing by the
Town due to extraordinary circumstances as described in Section 6.5 or another
member of the Qualified Workforce Household becomes a Qualified Workforce
Occupant within such time.
Restrictions on Short Term or Vacation Rental. Each Residential Unit shall
not be rented, leased or furnished for tenancies of less than thirty (30) days.
Maintenance. The Owner shall maintain the Residential Unit in a safe and
habitable condition, except for normal wear and tear, and in material compliance with all
applicable laws, ordinances, homeowner covenants or rules and regulations of any
77
173
5
governmental authority with jurisdiction over matters concerning the condition of the
Residential Unit.
Rental Agreements. In the event a Residential Unit is rented, leased or
licensed by the Owner, and the Owner does not then occupy the Residential Unit as part of
a Qualified Workforce Household, such Residential Unit shall be rented to occupants
pursuant to a written rental agreement (a “Rental Agreement”) that provides a rental term
of at least six months and not more than one year (except that a Rental Agreement may
provide that its term ends on the last day of the month that includes the one-year
anniversary of the commencement of the Rental Agreement) and which requires the
occupants to constitute a Qualified Workforce Household on the date of execution of the
Rental Agreement and during the term of the Rental Agreement. The form of Rental
Agreement to be utilized by the Owner shall provide for termination of the Rental
Agreement and the consent by the occupants for immediate commencement of eviction
proceedings as a result of any knowing material misrepresentation with respect to the
Occupancy Requirements made by the person or persons executing the Rental Agreement.
Each Rental Agreement shall prohibit occupancy or use of the Residential Unit as a short
term or vacation rental as defined in the EVDC or the Town’s Municipal Code including
amendments thereto. Each Rental Agreement shall prohibit assignment or subleasing
without the consent of the Owner which consent must be denied unless after the assignment
or sublease, the occupants will constitute a Qualified Workforce Household. Nothing
contained in this agreement shall prohibit the Owner from entering into one or more master
leases of Residential Units with terms in excess of one year provided that each Rental
Agreement entered into pursuant to the master lease satisfies the requirements of this
Agreement.
Relief from Extraordinary Circumstances. The Town may grant an
exception or waiver from the requirements of this Section 6 based upon the written request
of the Owner. Such exception or waiver may be granted by the Town only upon a finding
that: (i) the circumstances justifying the granting of the exception or waiver are unique or
outside of the control of the Qualified Workforce Occupant, and may include involuntary
loss of job, injury, physical disability, or trauma; (ii) a strict application of this Section 6
would result in an extraordinary hardship; and (iii) the exception or waiver is consistent
with the intent and purpose of this Agreement. No exception or waiver shall be granted by
the Town if its effect would be to nullify the intent and purpose of this Agreement. In
granting an exception or waiver of the provisions of this Section 6, the Town may impose
specific conditions of approval, and shall fix the duration of the term of such exception or
waiver.
Compliance, Monitoring and Enforcement.
Annual Verification and Certification Requirement. The Owner shall be
responsible for taking reasonable steps to verify that Qualified Workforce Households
occupy the occupied Residential Unit(s) owned by the Owner in accordance with this
Agreement and shall certify to the Town, upon request, on or before January 31st of each
calendar year that to the best of the Owner’s knowledge, all occupied Residential Units
owned by Owner are occupied in compliance with this Agreement or if not so occupied,
78
174
6
the certification shall describe the steps the Owner is taking to remedy the noncompliance.
All certifications required by this Section shall be in the form and contain all
documentation reasonably required by the Town.
Certification related to Rental Agreements. Each person executing a Rental
Agreement as a non-Owner occupant shall also execute an Occupancy Certification at the
time of execution of the Rental Agreement and each renewal thereof to ensure compliance
with this Agreement. The Owner will deliver to the Town the executed Rental Agreement
and Occupancy Certification as soon as practicable, but in any event within five business
days, which may be done electronically as a facsimile or an image attached to an email. If
the Town determines on the basis of reasonable evidence that (i) any statement on an
Occupancy Certification is substantially untrue and, as a result, the occupants do not meet
the Occupancy Requirements, or (ii) the occupant is not eligible for continuing occupancy
under the transition rules in Section 6.1(b) or for an exception or waiver under Section 6.4,
the Town may notify the Owner within five business days after its receipt of the Rental
Agreement and Occupancy Certifications and the Rental Agreement shall terminate.
Acknowledgement of Covenant upon Transfer. Owner shall notify the
Town in writing of Owner’s interest in selling or transferring any Residential Unit at least
45 days before the Owner’s desired closing date. Owner’s notice to the Town shall also
include either: (a) a certification by the buyer, in substantially the form required under
Section 7.1, that the Residential Unit will be occupied by a Qualified Workforce
Household; or (b) an Occupancy Certification and Rental Agreement executed by the
current or planned tenant of the Residential Unit. In addition, Owner’s notice shall further
include a signed and notarized acknowledgement of this covenant, in a recordable form
promulgated by or otherwise approved by the Town (the “Acknowledgement of
Covenant”), in which the buyer or grantee acknowledges the Occupancy Requirements and
agrees to comply with the terms, conditions and covenants of this Agreement. Within 15
days after receipt of Owner’s notice, together with the certifications and Acknowledgement
of Covenant referenced above, the Town will either: (i) verify compliance with this
Agreement and accept the Acknowledgement of Covenant in writing, or (ii) deliver a
written notice to Owner that verification and acceptance cannot be issued and stating the
reason(s) therefore. No transfer of a Residential Unit may occur until the Town verifies
compliance with this Agreement, accepts the Acknowledgement of Covenant in writing,
and delivers the executed and notarized Acknowledgement of Covenant for recording. The
Town may grant an exception or waiver from the requirements of this Section in
accordance with the principles of Section 6.5, and such exception or waiver will be in
written recordable form and will reference the recording information of this Agreement.
Further Actions. In addition to its specific agreements and undertakings in
this Agreement, the Owner shall take or cause to be taken all other and further actions
reasonably required by the Town in order to confirm satisfaction of the Occupancy
Requirements.
Rules, Regulations, Standards, and Fees. Upon not less than 30 days prior
written notice to the Owner, the Town shall have the authority to promulgate and adopt
such reasonable rules, regulations, standards, forms, and fees as it may deem appropriate,
79
175
7
from time to time, for the purpose of carrying out its obligations and responsibilities
described herein.
Delegation of Owner Verification. The Owner, and any successors thereto,
may use the services of a property manager or other agent (i.e., an accountant, attorney,
etc.) to assist it in meeting its verification obligations hereunder.
Transfer of Town Administration. The Town will maintain its authority to
contract with or use a third party to assist or manage the Town’s role in the verification and
administration of the occupancy of the Residential Units and the terms of this Agreement.
Enforcement. The Owner hereby grants and assigns to the Town the right
to review the Rental Agreements and enforce compliance with this Agreement.
Compliance may be enforced by the Town by any lawful means, including legal and
equitable relief and including, without limitation, specific performance. Any equitable
relief may be sought singly or in combination with such legal remedies as the Town may
be entitled to under either this Agreement or the laws of the State of Colorado.
Remedies; Attorney Fees. In the event the Town commences litigation with
respect to any or all provisions of this Agreement, the party that substantially prevails on
the merits shall be awarded reasonable court costs and attorney's fees, including the value
of the Town Attorney’s Office’s time spent on such matter at the rates generally charged
for similar services by private practitioners within the Town.
GENERAL PROVISIONS
Notices. Any notice, consent, approval, or request that is required to be
given hereunder shall be given by mailing the same, certified mail, return receipt requested,
properly addressed and with postage fully prepaid as follows:
OWNER:
And as subsequently shown on the Acceptance of Covenant
recorded with each subsequent transfer of a Residential Unit.
THE TOWN: Town of Estes Park
Attn: Community Development Director
P O Box 1200
Estes Park, CO 80517
Severability. Whenever possible, each provision of this Agreement and any
other related document shall be interpreted in such manner as to be valid under applicable
law. If any provision of this Agreement shall be invalid or prohibited under said applicable
law, such provisions shall be ineffective to the extent of such invalidity or prohibition
without invalidating the remaining provisions of this Agreement.
80
176
8
Governing Law and Jurisdiction. This Agreement and each and every
related document are to be governed and construed in accordance with the laws of the State
of Colorado; provided, however, this section will not limit the covenant to comply with a
applicable federal, state, and Town laws, rules, statutes, ordinances, and regulations, as
now existing or hereafter amended. Any legal action to enforce the terms of this Agreement
shall be brought in the appropriate court of Larimer County, State of Colorado.
Binding Agreement. The provisions and covenants contained herein shall
inure to the benefit of and be binding upon the successors and assigns of the Owner and
the Town.
Amendment. Any modifications of this Agreement shall be effective only
when made by a duly executed instrument by the Owner (or its successor) and the Town.
Recordation. Upon execution, this Agreement and any amendment shall be
recorded in the real property records of Larimer County, State of Colorado.
Entire Agreement. This Agreement including the recitals and the exhibits
and attachments constitutes the entire agreement between the parties hereto with respect to
the matters set forth herein. Captions are intended for convenience of reference and shall
not be considered a part of this Agreement.
No Third Party Beneficiaries. This Agreement is made and entered into for
the sole protection and benefit of the Town and the Owner. Except as otherwise
specifically provided for herein, no other person, persons, entity or entities, including
without limitation the occupants of a Residential Unit, shall have any right of action with
respect to this Agreement or right to claim any right or benefit from the terms provided in
this Agreement or be deemed a third party beneficiary of this Agreement.
Non-Liability. The Town and its respective employees, members, officers
and agents shall not be liable to any Owner or third party by virtue of the exercise of their
rights or the performance of their obligations under this Agreement. The Town is relying
on, and does not waive or intend to waive by any provision of this Agreement, the monetary
limitations or any other rights, immunities or protections afforded by the Colorado
Governmental Immunity Act, Section 24-10-101, et seq. C.R.S., as it may be amended, or
any other limitation, right, immunity or protection otherwise available to the Town.
[Signatures appear on following page.]
81
177
9
OWNER:
_____________________________________________________________________
By: _____________________________
__________________, its __________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this ______ day of _______, 20___, by ____________
______________________.
Witness my hand and official seal.
____________________________
Notary Public
TOWN OF ESTES PARK: Approved as to form:
By: _______________________________ _________________________________
Mayor Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this ______ day of _______, 20___, by
___________________ as ________________________ of the Town of Estes Park.
Witness my hand and official seal.
____________________________
Notary Public
82
178
Exhibit A
Exhibit A
(Legal Description of the Property)
83
179
Exhibit B
Exhibit B
FORM OF OCCUPANCY CERTIFICATION
The undersigned (“Applicant”) is making or has made an application to
________________ (the “Owner Representative”) to buy or rent workforce housing unit [____]
(the “Unit”) of the multifamily community known as [The Meadows Condominiums][The
Divide Condominiums], Estes Park, Colorado.
Occupancy of the Unit is limited to persons who comprise a Qualified Workforce
Household as specified in Section 2 below.
Applicant hereby states and affirms to the Town of Estes Park, Colorado under penalties
of perjury that on the date of this Occupancy Certification each of the following is true and
accurate:
All of the persons who will occupy the Unit at any time during the term of the lease
of the Unit are listed below (the “Occupants”). All of the Occupants are either (i) members of a
family unit related by blood, marriage or adoption, or (ii) unrelated individuals living together
whose number does not exceed 3 in the case of a one bedroom Unit, 5 in the case of a two bedroom
unit, or 7 in the case of a three bedroom Unit.
List of Occupants:
_________________________________ _________________________________
_________________________________ _________________________________
_________________________________ _________________________________
_________________________________ _________________________________
The Occupants are / are not members of a family unit related by blood, marriage or
adoption.
_______________________________ (name of the Qualified Workforce
Occupant) is eighteen years old or older, will occupy the Unit as his or her principal residence and
is currently employed (or self-employed) and on the date occupancy is commenced for the Unit
will be employed (or self-employed) for an average of at least thirty hours per week on an annual
basis within the boundaries of the Estes Park School District R-3 as depicted on the attached map
of that district.
84
180
Exhibit B
During the term of the Rental Agreement of the Unit, Applicant will notify the
Owner Representative in writing no later than seven days after any of the statements made in this
Occupancy Certification are not true and accurate (“Change of Status”).2
Dated ____________________________, 20__.
________________________________________
Occupant Signature
________________________________________
Occupant Name (print)
________________________________________
________________________________________
Occupant Address
________________________________________
Occupant phone number
________________________________________
Occupant date of birth (month, day and year)
2 Note that Change of Status will not prohibit the Occupants from continuing to occupy the Unit until the termination
of the Rental Agreement or one year from the Change of Status of the Qualified Workforce Occupant, whichever
occurs first, but may prevent the Rental Agreement of the Unit from being renewed or extended. A Change of Status
does not occur if the Workforce Housing Occupant subsequently attains the age of 65 years and has fully satisfied the
requirements of Section 6.1(b) of the Restrictive Covenant applicable to the Unit.
85
181
Map of Estes Park School District R-3
Map of Estes Park School District R-3
(attached)
86
182
NOTICE: NO TRANSFERS OF PROPERTY SUBJECT TO THIS RESTRICTIVE
COVENANT AND AGREEMENT MAY OCCUR WITHOUT DELIVERY OF AN
ACKNOWLEDGEMENT OF COVENANT BY THE GRANTEE ACCEPTED BY THE
TOWN UNDER SECTION 7.3 HEREIN.RESTRICTIVE COVENANT AND AGREEMENT
THIS RESTRICTIVE COVENANT AND AGREEMENT (“Agreement”) dated as of
___________________, 20_ (the “Effective Date”) is entered into by and between
_______________________________ (the “Owner”) and the Town of Estes Park (the “Town”),
a Colorado Municipal Corporation, on the Effective Date stated herein.
RECITALS
Section 11.4.C. of the Estes Valley Development Code (“EVDC”) provides that a
property owner may receive a density bonus with respect to “workforce” housing. The Owner
has obtained approval from the Town for the development of __________ multi-family
structures consisting of ______ Residential Units as set forth in the Development Plan for [The
Meadows Condominiums][The Divide Condominiums].1 Such approval includes the density
bonus which requires that the Residential Units be subject to the restrictive covenants set forth in
this Agreement to assure occupancy of the Residential Units qualifies them as workforce
housing.
IN WITNESS WHEREOF, in consideration of the foregoing Recitals, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby declare that the Property (as hereinafter defined) shall be held, sold, occupied and
conveyed subject to the following covenants, restrictions, and conditions, all of which shall be
covenants running with the land and which covenants, restrictions, and conditions shall be
binding on all parties having any right, title, or interest in the Property, or any part thereof.
Definitions..1.
1.1 “Acknowledgement of Covenant” is defined in Section 7.3 of this
Agreement and means an acknowledgement in the form promulgated or otherwise
approved by the Town, in which the buyer or grantee acknowledges the Occupancy
Requirements and agrees to comply with the terms, conditions and covenants of this
Agreement.
1.2 “Change of Status” means the Qualified Workforce Occupant no1.1
longer meets the requirement set forth in Section 6.1(a) of this Agreement.
1.3 “First Deed of Trust” means a recorded deed of trust or mortgage1.2
which is senior to any other deeds of trust or liens against the Property (other than the lien
for real estate taxes and homeowner association assessments), and which is used to secure
a loan from an Institutional Lender to purchase a Residential Unit.
1 NOTE TO DRAFT; This Agreement will be replicated for each of the 2 projects, as applicable. All units within
Meadow and Divide Condominium projects will be identifiedidentifies as the “Property” subject to this covenant.
DMWEST 3814997238243947 v1
87
183
“Institutional Lender” means any bank, savings and loan association, or1.3
any other lender which is licensed to engage in the business of providing purchase money
mortgage financing on residential real property.
“Occupancy Certification” means a certification in the form attached1.4
hereto as Exhibit B (or such other form as may be approved by the Town) to be executed
by the person(s) executing a Rental Agreement as occupants.
1.4 “Occupancy Limit” means one plus two times the number of bedrooms1.5
in the Residential Unit.
1.5 “Occupancy Requirements” is defined in Section 6.1.1.6
1.6 “Owner” means ________________________ and any subsequent1.7
transferee, assignee, or successor in title to the Property or any portion thereof, including
any Residential Unit.
1.7 “Property” means the real property described in Exhibit A.1.8
1.8 “Qualified Workforce Household” is defined in Section 6.1(a).1.9
1.9 “Rental Agreement” is defined in Section 6.4.6.3.1.10
1.10 “Residential Unit” means a residential unit located on the Property.1.11
1.11 “Workforce Housing Unit” means a Residential Unit, the occupancy1.12
of which is restricted to a Qualified Workforce Household.
1.12 “Term” is defined in Section 5.1.1.13
Other definitions may appear in the Agreement.
Purpose. The purpose of this Agreement is to enforce the restrictions in the EVDC2.
in effect as of the Effective Date that apply to the Property in connection with the grant of the
density bonus for workforce housing.
Recording and Filing; Covenants to Run with the Land.3.
Recording, Covenants Run with the Land. This Agreement shall be placed3.1
of record in the real property records of Larimer County, Colorado, being the county in
which the Property is located and except as otherwise provided herein, the covenants
contained herein shall run with the land and shall bind, and the benefits shall inure to,
respectively, the Owner and its successors and assigns, and the Town and its successors
and assigns, and all subsequent owners of the Property or any interest therein during the
Term. The Property and each Residential Unit shall be held, conveyed, hyp othecated,
encumbered, leased, rented and occupied subject to the covenants, restrictions and
limitations set forth herein, which are intended to constitute both equitable servitudes and
covenants running with the land. Any buyer or transferee of a Residential Unit or any
2
88
184
portion thereof, by acceptance of a deed therefore, or by the signing of a contract or
purchase agreement to purchase the same, shall, by acceptance of such deed or by the
signing of such contract or agreement, be deemed to have consented to and accepted the
covenants, conditions, restrictions and limitations set forth herein, whether or not there is
any express reference to this Agreement in such deed or contract.
Satisfaction of Requirements. The Owner agrees that any and all3.2
requirements of the laws of the State of Colorado to be satisfied in order for the
provisions of this Agreement to constitute restrictive covenants running with the land
shall be deemed to be satisfied in full, and that any requirements of privity of estate are
intended to be satisfied, or in the alternate that an equitable servitude has been created to
ensure that these restrictions run with the land. During the Term, each and every contract,
deed or other instrument hereafter executed conveying the Property or portion thereof
shall expressly provide that such conveyance is subject to this Agreement, provided,
however, the covenants contained herein shall survive and be effective as to successors
and assigns of all or any portion of the Property, regardless of whether such contract, deed
or other instrument hereafter executed conveying the Property or portion thereof provides
that such conveyance is subject to this Agreement.
Representations, Covenants and Warranties of the Owner. On the Effective Date,4.
the Owner covenants, represents and warrants as follows:
Organization. The Owner is duly organized under the laws of the State of4.1
Colorado, and is qualified to transact business under the laws of the State.
Good Title. The Owner has good and marketable title to the Property.4.2
Consistency Requirement. The Owner has not and will not execute any4.3
other agreement with provisions contradictory to, or in opposition to, the provisions
hereof, and in any event, the requirements of this Agreement are paramount and
controlling as to the rights and obligations herein set forth and supersede any other
provisions in conflict herewith.
Required Consents. The Owner will obtain the written consent of any4.4
prior recorded lienholder on the Property to this Agreement prior to the first application
for any development permit (i.e. grading or building) for the Property. The Owner will
not allow mechanic’s liens having senior priority to this Agreement to be recorded against
the Property and continue for a period of 45 days without release by the lien claimant or
removal by bond.
Term of Agreement.5.
Term. In accordance with the requirements of the EVDC, this Agreement5.1
shall remain in effect for each Residential Unit on the Property for a period of fifty (50)
years from the Effective Date (the “Term”).
Termination. Upon expiration of the Term, this Agreement and each of its5.2
provisions shall terminate without further action by the parties. On and after expiration
3
89
185
of the Term, upon the written request of any current owner of the Property, the Town
shall promptly execute and deliver to such owner a statement of termination of this
Agreement in recordable form which may recorded by such owner, but the Agreement
shall terminate whether or not any such statement is recorded.
Restrictions on Use and Occupancy.6.
Restriction on Occupancy. Each occupied Residential Unit shall be6.1
occupied as a Workforce Housing Unit (the “Occupancy Requirements”).
Qualified Workforce Household Definition. A “Qualified Workforce(a)
Household” means the occupants of a Residential Unit that are either (i) members of a
family unit related by blood, marriage or adoption, or (ii) unrelated individuals living
together whose number does not exceed the Occupancy Limit, in each case who occupy
the Residential Unit; where all occupants have common access to and common use of all
living and eating areas and all facilities for the preparation and serving of food within the
Residential Unit; and where at least one adult (eighteen years old or older) who occupies
the Residential Unit as his or her principal residence is employed (or self-employed) for
an average of at least thirty hours per week on an annual basis within the boundaries of
the Estes Park School District R-3 (such employed occupant is referred to as a “Qualified
Workforce Occupant”).
Transition Rules:(b)
A person age 65 years or older who was a Qualified(i)
Workforce Occupant for at least seven (7) consecutive years ending on the
date such person attained the age of 65 years shall continue to be regarded
as a Qualified Workforce Occupant and, in the event of the death of such
person, his or her spouse will be considered a Qualified Workforce
Occupant, for so long as he or she continuously occupies the Residential
Unit as his or her primary residence.
If, after the occupancy of the Residential Unit has(ii)
commenced by the members of a Qualified Workforce Household, the
status of a Qualified Workforce Occupant changes so that such person is
no longer considered to be a Qualified Workforce Occupant, such person
and the other persons occupying the Residential Unit shall continue to be
considered to constitute a Qualified Workforce Household until
termination of the Rental Agreement, if any, or for one year from the date
of the Change of Status of the Qualified Workforce Occupant, whichever
occurs first, unless a longer period of occupancy is authorized in writing
by the Town due to extraordinary circumstances as described in Section
6.5 or another member of the Qualified Workforce Household becomes a
Qualified Workforce Occupant within such time.
Restrictions on Short Term or Vacation Rental. Each Residential Unit6.2
shall not be rented, leased or furnished for tenancies of less than thirty (30) days.
4
90
186
Maintenance. The Owner shall maintain the Residential Unit in a good,6.3
safe, and habitable condition in all respects, except for normal wear and tear, and in
materialfull compliance with all applicable laws, ordinances, homeowner covenants or
rules and regulations of any governmental authority with jurisdiction over matters
concerning the condition of the Residential Unit. The Owner shall not allow any
mechanic’s liens to be recorded against the Residential Unit.
Rental Agreements. In the event a Residential Unit is rented, leased or6.4
licensed by the Owner, and the Owner does not then occupy the Residential Unit as part
of a Qualified Workforce Household, such Residential Unit shall be rented to occupants
pursuant to a written rental agreement (a “Rental Agreement”) that provides a rental term
of at least six months and not more than one year (except that a Rental Agreement may
provide that its term ends on the last day of the month that includes the one-year
anniversary of the commencement of the Rental Agreement) and which requires the
occupants to constitute a Qualified Workforce Household on the date of execution of the
Rental Agreement and during the term of the Rental Agreement. The form of Rental
Agreement to be utilized by the Owner shall provide for termination of the Rental
Agreement and the consent by the occupants for immediate commencement of eviction
proceedings as a result of any knowing material misrepresentation with respect to the
Occupancy Requirements made by the person or persons executing the Rental
Agreement. Each Rental Agreement shall prohibit occupancy or use of the Residential
Unit as a short term or vacation rental as defined in the EVDC or the Town’s Municipal
Code including amendments thereto. Each Rental Agreement shall prohibit assignment
or subleasing without the consent of the Owner which consent must be denied unless after
the assignment or sublease, the occupants will constitute a Qualified Workforce
Household. Nothing contained in this agreement shall prohibit the Owner from entering
into one or more master leases of Residential Units with terms in excess of one year
provided that each Rental Agreement entered into pursuant to the master lease satisfies
the requirements of this Agreement.
Relief from Extraordinary Circumstances. The Town may grant an6.5
exception or waiver from the requirements of this Section 6 based upon the written
request of the Owner. Such exception or waiver may be granted by the Town only upon a
finding that: (i) the circumstances justifying the granting of the exception or waiver are
unique or outside of the control of the Qualified Workforce Occupant, and may include
involuntary loss of job, injury, physical disability, or trauma; (ii) a strict application of
this Section 6 would result in an extraordinary hardship; and (iii) the exception or waiver
is consistent with the intent and purpose of this Agreement. No exception or waiver shall
be granted by the Town if its effect would be to nullify the intent and purpose of this
Agreement. In granting an exception or waiver of the provisions of this Section 6, the
Town may impose specific conditions of approval, and shall fix the duration of the term
of such exception or waiver.
Compliance, Monitoring and Enforcement.7.
Annual Verification and Certification Requirement. The Owner shall be7.1
responsible for taking reasonable steps to verify that Qualified Workforce Households
5
91
187
occupy the occupied Residential Unit(s) owned by the Owner in accordance with this
Agreement and shall certify to the Town, upon request, on or before January 31st of each
calendar year that to the best of the Owner’s knowledge, all occupied Residential Units
owned by Owner are occupied in compliance with this Agreement or if not so occupied,
the certification shall describe the steps the Owner is taking to remedy the
noncompliance. All certifications required by this Section shall be in the form and
contain all documentation reasonably required by the Town.
Certification related to Rental Agreements. Each person executing a7.2
Rental Agreement as a non-Owner occupant shall also execute an Occupancy
Certification at the time of execution of the Rental Agreement and each renewal thereof
to ensure compliance with this Agreement. The Owner will deliver to the Town the
executed Rental Agreement and Occupancy Certification as soon as practicable, but in
any event within five business days, which may be done electronically as a facsimile or an
image attached to an email. If the Town determines on the basis of reasonable evidence
that (i) any statement on an Occupancy Certification is substantially untrue and, as a
result, the occupants do not meet the Occupancy Requirements, or (ii) the occupant is not
eligible for continuing occupancy under the transition rules in Section 6.1(b) or for an
exception or waiver under Section 6.4, the Town may notify the Owner within five
business days after its receipt of the Rental Agreement and Occupancy Certifications and
the Rental Agreement shall terminate.
Acknowledgement of CovenantCertification upon Transfer. Owner shall7.3
notify the TownCity in writing of Owner’s interest in selling or transferring anya
Residential Unit at least forty-five (45) days before the Owner’s desired closing date.
Owner’sNo transfer may be closed within this 45-day period. The notice to the Town
shall also include either: (a) a certification by the buyer, in substantially the form required
under Section 7.1, that the Residential Unit will be occupied by a Qualified Workforce
Household; or (b) an Occupancy Certification and Rental Agreement executed by the
current or planned tenant of the Residential Unit. In addition, Owner’s notice shall
further include a signed and notarized acknowledgement of this covenant, in a recordable
form promulgated by or otherwise approved by the Town (the “Acknowledgement of
Covenant”), in which the buyer or grantee acknowledges the Occupancy Requirements
and agrees to comply with the terms, conditions and covenants of this Agreement.
Within 15 days after receipt of Owner’s notice, together with the certifications and
Acknowledgement of Covenant referenced above, the Town will either: (i) verify
compliance with this Agreement and accept the Acknowledgement of Covenant in
writing, or (ii) deliver a written notice to Owner that verification and acceptance cannot
be issued and stating the reason(s) therefore. No transfer of a Residential Unit may occur
until the Town verifies compliance with this Agreement, accepts the Acknowledgement
of Covenant in writing, and delivers the executed and notarized Acknowledgement of
Covenant for recording. The Town may grant an exception or waiver from the
requirements of this Section in accordance with the principles of Section 6.5, and such
exception or waiver will be in written recordable form and will reference the recording
information of this Agreement.contain either an Occupancy Certification by the buyer or
transferee or an affidavit, in a form acceptable to the Town, pledging their intent not to
6
92
188
occupy the Residential Unit but to enter a Rental Agreement with a Qualified Workforce
Household under Section 6.3.
Further Actions. In addition to its specific agreements and undertakings in7.4
this Agreement, the Owner shall take or cause to be taken all other and further actions
reasonably required by the Town in order to confirm satisfaction of the Occupancy
Requirements.
Rules, Regulations, Standards, and Fees. Upon not less than 30 days prior7.5
written notice to the Owner, the Town shall have the authority to promulgate and adopt
such reasonable rules, regulations, standards, forms, and fees as it may deem appropriate,
from time to time, for the purpose of carrying out its obligations and responsibilities
described herein.
Delegation of Owner Verification. The Owner, and any successors thereto,7.6
may use the services of a property manager or other agent (i.e., an accountant, attorney,
etc.) to assist it in meeting its verification obligations hereunder.
Transfer of Town Administration. The Town will maintain its authority to7.7
contract with or use a third party to assist or manage the Town’s role in the verification
and administration of the occupancy of the Residential Units and the terms of this
Agreement.
Enforcement. The Owner hereby grants and assigns to the Town the right7.8
to review the Rental Agreements and enforce compliance with this Agreement.
Compliance may be enforced by the Town by any lawful means, including legal and
equitable relief and including, without limitation, specific performance. Any equitable
relief may be sought singly or in combination with such legal remedies as the Town may
be entitled to under either this Agreement or the laws of the State of Colorado.
If the First Deed of Trust is held or insured by the U.S. Department of7.9
Housing and Urban Development, the Covenant may not be enforced by any of the
following, unless expressly approved in writing by HUD: (a) voiding a conveyance by the
Owner; (b) terminating the Owner’s interest in the Home; (c) accelerating the First Deed
of Trust; (d) increasing the interest rate for the First Deed of Trust; or (e) subjecting the
Owner to contractual liability.
7.9 Remedies; Attorney Fees. In the event the Town commences litigation7.10
with respect to any or all provisions of this Agreement, the party that substantially
prevails on the merits shall be awarded reasonable court costs and attorney's fees,
including the value of the Town Attorney’s Office’s time spent on such matter at the rates
generally charged for similar services by private practitioners within the Town.
DEEDS OF TRUST8.
For each Residential Unit, prior to certificate of occupancy, the Owner must
execute a promissory note secured by a deed of trust in favor of the Town. The form of
these documents will be provided by the Town.
7
93
189
SUBORDINATION AND DEFAULT UNDER A FIRST DEED OF TRUST9.
Notice of Default. Each Owner agrees to give immediate written notice to9.1
the City (a “Default Notice”) of (a) any action or omission that constitutes a default under
the First Deed of Trust on the Property, including failure to pay amounts due thereunder
within twenty-one days of the due date, and (b) any notice received alleging a default or
commencing foreclosure procedures under a First Deed of Trust on such Owner’s
Residential Unit.
Cure Rights. The Town shall have the right, but not the obligation, in its9.2
sole discretion, to make any payment owed to cure the default underlying the Default
Notice. In such event, the Owner shall be personally liable to the Town for the amounts
so paid by the Town, together with interest thereon at the rate set forth in the note which
is secured by the First Deed of Trust, plus one percentage point, and all actual expenses of
the City incurred in curing the default. The Owner shall be required to execute a
promissory note secured by a deed of trust on the unit in favor of the Town for the
amounts so owed to the City.
Subordination. This Agreement shall be subordinate to any First Deed of9.3
Trust.
Senior to Other Liens. This Agreement shall be senior to any other liens9.4
or encumbrances, and shall survive and not be extinguished by the foreclosure of or
deed-in-lieu of foreclosure regarding any such other liens or encumbrances. This includes,
but is not limited to, assessment liens, tax liens, mechanic’s liens and second priority
deeds of trust.
Homestead Waiver. This Agreement is prior and superior to the Owner’s9.5
right to a homestead exemption under Article XVIII, Section I of the Colorado
Constitution and under Part 2, Article 41, Title 38 of the Colorado Revised Statutes, or
any successor statutes. Each Owner waives his or her homestead rights to the fullest
extent that they conflict with or impair the Town’s rights and remedies under this
Agreement.
Colorado Housing and Finance Authority (“CHFA”). For the purposes of9.6
this Agreement, so long as CHFA holds a first deed of trust and a second deed of trust
contemporaneously on the Home restricted by this Covenant, all references in this
Covenant to a first deed of trust shall be deemed to include both CHFA’s first and second
deeds of trust without regard to the recording order of this Agreement or CHFA’s deeds
of trust.
8. GENERAL PROVISIONS10.
8.1 Notices. Any notice, consent, approval, or request that is required to be10.1
given hereunder shall be given by mailing the same, certified mail, return receipt
requested, properly addressed and with postage fully prepaid as follows:
OWNER:
8
94
190
And as subsequently shown on the Acceptance of Covenant
recorded with each subsequent transfer of a Residential Unit.
1
THE TOWN: Town of Estes Park
Attn: Community Development Director
P O Box 1200
Estes Park, CO 80517
8.2 Severability. Whenever possible, each provision of this Agreement and10.2
any other related document shall be interpreted in such manner as to be valid under
applicable law. If any provision of this Agreement shall be invalid or prohibited under
said applicable law, such provisions shall be ineffective to the extent of such invalidity or
prohibition without invalidating the remaining provisions of this Agreement.
8.3 Governing Law and Jurisdiction. This Agreement and each and every10.3
related document are to be governed and construed in accordance with the laws of the
State of Colorado; provided, however, this section will not limit the covenant to comply
with asubject to all applicable federal, state, and Town laws, rules, statutes, ordinances,
and regulations, as now existing or hereafter amended.. Any legal action to enforce the
terms of this Agreement shall be brought in the appropriate court of Larimer County,
State of Colorado.
8.4 Binding Agreement. The provisions and covenants contained herein10.4
shall inure to the benefit of and be binding upon the successors and assigns of the Owner
and the Town.
8.5 Amendment. Any modifications of this Agreement shall be effective10.5
only when made by a duly executed instrument by the Owner (or its successor) and the
Town.
8.6 Recordation. Upon execution, this Agreement and any amendment10.6
shall be recorded in the real property records of Larimer County, State of Colorado.
8.7 Entire Agreement. This Agreement including the recitals and the10.7
exhibits and attachments constitutes the entire agreement between the parties hereto with
respect to the matters set forth herein. Captions are intended for convenience of reference
and shall not be considered a part of this Agreement.
8.8 No Third Party Beneficiaries. This Agreement is made and entered10.8
into for the sole protection and benefit of the Town and the Owner. Except as otherwise
specifically provided for herein, no other person, persons, entity or entities, including
without limitation the occupants of a Residential Unit, shall have any right of action with
respect to this Agreement or right to claim any right or benefit from the terms provided in
this Agreement or be deemed a third party beneficiary of this Agreement.
9
95
191
8.9 Non-Liability. The Town and its respective employees, members,10.9
officers and agents shall not be liable to any Owner or third party by virtue of the exercise
of their rights or the performance of their obligations under this Agreement. The Town is
relying on, and does not waive or intend to waive by any provision of this Agreement, the
monetary limitations or any other rights, immunities or protections afforded by the
Colorado Governmental Immunity Act, Section 24-10-101, et seq. C.R.S., as it may be
amended, or any other limitation, right, immunity or protection otherwise available to the
Town.
[Signatures appear on following page.]
10
96
192
OWNER:
_____________________________________________________________________
By: _____________________________
__________________, its __________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this ______ day of _______, 20___, by ____________
______________________.
Witness my hand and official seal.
____________________________
Notary Public
TOWN OF ESTES PARK: Approved as to form:
By: _______________________________ _________________________________
Mayor Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this ______ day of _______, 20___, by
___________________ as ________________________ of the Town of Estes Park.
Witness my hand and official seal.
____________________________
Notary Public
11
97
193
Exhibit A
(Legal Description of the Property)
Exhibit A
98
194
Exhibit B
FORM OF OCCUPANCY CERTIFICATION
The undersigned (“Applicant”) is making or has made an application to
________________ (the “Owner Representative”) to buy or rent workforce housing unit [____]
(the “Unit”) of the multifamily community known as [The Meadows Condominiums][The
Divide Condominiums],Estes Park, Colorado.
Occupancy of the Unit is limited to persons who comprise a Qualified Workforce
Household as specified in Section 2 below.
Applicant hereby states and affirms to the Town of Estes Park, Colorado under penalties
of perjury that on the date of this Occupancy Certification each of the following is true and
accurate:
All of the persons who will occupy the Unit at any time during the term of the1.
lease of the Unit are listed below (the “Occupants”). All of the Occupants are either (i) members
of a family unit related by blood, marriage or adoption, or (ii) unrelated individuals living
together whose number does not exceed 3 in the case of a one bedroom Unit, 5 in the case of a
two bedroom unit, or 7 in the case of a three bedroom Unit.
List of Occupants:
_________________________________ _________________________________
_________________________________ _________________________________
_________________________________ _________________________________
_________________________________ _________________________________
The Occupants are / are not members of a family unit related by blood, marriage or
adoption.
_______________________________ (name of the Qualified Workforce2.
Occupant) is eighteen years old or older, will occupy the Unit as his or her principal residence
and is currently employed (or self-employed) and on the date occupancy is commenced for the
Unit will be employed (or self-employed) for an average of at least thirty hours per week on an
annual basis within the boundaries of the Estes Park School District R-3 as depicted on the
attached map of that district.
Exhibit B
99
195
During the term of the Rental Agreement of the Unit, Applicant will notify the3.
Owner Representative in writing no later than seven days after any of the statements made in this
Occupancy Certification are not true and accurate (“Change of Status”).2
Dated ____________________________, 20__.
________________________________________
Occupant Signature
________________________________________
Occupant Name (print)
________________________________________
________________________________________
Occupant Address
________________________________________
Occupant phone number
________________________________________
Occupant date of birth (month, day and year)
2 Note that Change of Status will not prohibit the Occupants from continuing to occupy the Unit until the
termination of the Rental Agreement or one year from the Change of Status of the Qualified Workforce Occupant,
whichever occurs first, but may prevent the Rental Agreement of the Unit from being renewed or extended. A
Change of Status does not occur if the Workforce Housing Occupant subsequently attains the age of 65 years and
has fully satisfied the requirements of Section 6.1(b) of the Restrictive Covenant applicable to the Unit.
Exhibit B
100
196
Map of Estes Park School District R-3
(attached)
Map of Estes Park School District R-3
101
197
Document comparison by W orkshare 9.5 on Tuesday, October 1, 2019 10:18:54
AM
Input:
Document 1 ID interwovenSite://DMS-FIRM/DMW EST/38149972/4
Description #38149972v4<DMW EST> - Restrictive Covenant DK
Version - W ildfire Homes
Document 2 ID interwovenSite://DMS-FIRM/DMW EST/38243947/1
Description #38243947v1<DMW EST> - W orkforce Housing Covenant
TOEP version 9-30-19 - W ildfire
Rendering set Standard
Legend:
Insertion
Deletion
Moved from
Moved to
Style change
Format change
Moved deletion
Inserted cell
Deleted cell
Moved cell
Split/Merged cell
Padding cell
Statistics:
Count
Insertions 67
Deletions 41
Moved from 2
Moved to 2
Style change 0
Format changed 0
Total changes 112
102
198
103199
104200
105201
106
202
107
203
10/10/2019
1
Wildfire Homes
Estes Park Town Board
October 8, 2019
The Meadows / The Divide
Preliminary Condominium Maps
Staff Finding:The Preliminary Condo Maps comply
with applicable standards set forth in the EVDC.
• Buildings / Lots • Stormwater Drainage
• Landscaping • Access
• Water • Emergency Access
• Fire Protection • Sidewalks / trails
• Electric • Parking
• Sanitary Sewer • Outdoor Lighting
1
2
204
10/10/2019
2
The Meadows / The Divide
Preliminary Condominium Maps
1996 Comprehensive Plan, Community Wide Policies:
5.1 Encourage a variety of housing types and price ranges.
5.2 Encourage housing for . . . all sectors of the community . . .
5.3 Establish . . . incentives . . . to provide affordable housing.
5.6 Encourage housing infill . . .
5.7 Identify affordable housing opportunities . . .
8.4 . . . encourage . . . infill as a primary tool to create a
compact community . . .
The Meadows / The Divide
Preliminary Condominium Maps
• Consistent with approved zoning
• Comply with all EVDC standards
• Workforce housing is supported by
numerous plans and policies
3
4
205
10/10/2019
3
EVDC § 11.4.A ‐ Purpose
This Section is intended to create an
incentive to provide a variety of attainable
and workforce housing for persons living
and/or working in the Estes Valley.
EVDC § 11.4 .C.4 ‐ Definition
Workforce Housing.Housing units shall be
eligible for the Maximum Permitted Density
Bonus (Sec. 11.4.D) if at least one (1) resident in
each housing unit annually submits an affidavit,
including a copy of a W‐2 form, to the Town
certifying that the resident is employed within
the Estes Park School District R‐3 Boundary
Map.
5
6
206
10/10/2019
4
EVDC § 11.4.E.4
4. Deed Restriction or Restrictive Covenant and Agreement
Required.Attainable or workforce housing units developed
pursuant to this Section shall use one of the two mechanisms
below to assure the availability of the units for sale or rent to
persons meeting the income or workforce guidelines and
definition set forth in §11.4.C above. The Community
Development Director shall determine which one of the two
mechanisms below is applicable:
a. Deed Restriction.
b. Restrictive Covenant and Agreement.
EVDC § 11.4.E.4.b
b. Restrictive Covenant and Agreement. A Restrictive
Covenant and Agreement shall be entered into between the
property owner and the Town or County. The Restrictive
Covenant and Agreement shall be for a time period of no less
than fifty (50) years, shall run with the land, and shall be
binding on the owner and all subsequent owners and
successors. The Restrictive Covenant and Agreement shall be
in a form acceptable to the Town or County Attorney. Upon
approval by the Town or County Attorney, the Restrictive
Covenant and Agreement shall be subject to review by the
decision‐making body with the associated preliminary
subdivision, or, if no subdivision approval is required, with the
associated development plan. The Restrictive Covenant and
Agreement shall be properly executed and recorded.
7
8
207
10/10/2019
5
The Meadows/The Divide
Workforce Housing Covenant
Concerns with Prior Town form of
Covenant
• Notice of Ownership Transfers
• Addressed with Applicant's Proposed
Covenant “Acknowledgment of Covenant"
The Meadows/The Divide
Workforce Housing Covenant
Concerns with Additional Deed of Trust
•Increased administration for Town, Developer
and Buyers (deeds of trust, subordinations,
releases, other mortgagee consents)
•Adverse impact on consumer financing
•Unintended consequences in foreclosure
•Only notice of a "lien," not notice of a "covenant"
9
10
208
10/10/2019
6
Annexation / Annexation Agreement
May 28, 2019 - Town Board approval
Rezoning / Preliminary Subdivision Plat
June 18, 2019 - EVPC recommendation
July 9, 2019 - Town Board approval
11
12
209
10/10/2019
7
Final Subdivision Plan
August 13, 2019 – Town Board approval
ROW Vacation
August 13, 2019 – Town Board approval
13
14
210
10/10/2019
8
The Meadows / The Divide
Development Plans
August 20, 2019 - EVPC approval
Preliminary Condominium Maps
August 20, 2019 - EVPC recommendation
The Meadows / The Divide
Workforce Housing Covenant
Restrictive Covenant and Agreement form
approved by Town without a Deed of Trust /
Promissory Note:
• Wind River Apartments (approved Sept., 2018)
• Peak View Apartments (approved Jan., 2019)
15
16
211
10/10/2019
9
EVDC § 11.4.E.4
4. Deed Restriction or Restrictive Covenant and Agreement Required.Attainable or
workforce housing units developed pursuant to this Section shall use one of the two
mechanisms below . . . :
a. Deed Restriction. Attainable or workforce housing units shall be deed restricted.
The deed restriction shall be for a time period of no less than fifty (50) years. The deed
restriction used to restrict the units shall be approved by the Town or County Attorney.
b. Restrictive Covenant and Agreement. A Restrictive Covenant and Agreement shall
be entered into between the property owner and the Town or County. The Restrictive
Covenant and Agreement shall be for a time period of no less than fifty (50) years, shall
run with the land, and shall be binding on the owner and all subsequent owners and
successors. The Restrictive Covenant and Agreement shall be in a form acceptable to the
Town or County Attorney. Upon approval by the Town or County Attorney, the Restrictive
Covenant and Agreement shall be subject to review by the decision‐making body with
the associated preliminary subdivision, or, if no subdivision approval is required, with
the associated development plan. The Restrictive Covenant and Agreement shall be
properly executed and recorded.
Longmont Ordinance O‐2018‐51
Section 2
G.3. Deed of trust. The deed restrictions shall
be secured by a deed of trust on the property,
which may be subrogated to other deeds of
trust on the property.
17
18
212
10/10/2019
10
Longmont Ordinance O‐2018‐51
Section 2
F. Middle‐tier housing. Prior to issuance of building permits, a developer or
builders may enter an agreement with the city . . . providing that the
development may include less affordable housing that this section would
otherwise require, due to the developer’s commitment to provide middle‐
tier housing. The agreement shall provide as follows:
1. No obligation shall arise under this section to satisfy any affordable
housing requirement for any unit sold for occupancy at a price affordable
between 80.1 percent and 100.0 of the area median income.
2. The requirements for any units sold for occupancy at a price affordable
between 100.1 percent and 110.0 percent of the area media income shall
be reduced to forty percent of the otherwise applicable requirement.
3. The requirements of any units sold for occupancy at a price affordable
between 110.1 perent and 120.0 percent of the area median income shall
be reduced to eighty percent of the otherwise applicable requirement.
Longmont Ordinance O‐2018‐51
Section 2
F.5. The developer or builder shall use best
efforts to ensure that the initial owner or
owners of each such individual home shall have
a bona fide intent to occupy the premises, and
shall provide documentation thereof.
19
20
213
10/10/2019
11
Fort Collins
Land Use Code: Affordable housing project shall mean . . . the units will be
required by binding legal instrument acceptable to the City and duly recorded
with the Larimer County Clerk and Recorder, to be occupied by and affordable
to low‐income households for at least twenty (20) years.
Metro District Policy: Workforce Housing: Deliver or facilitate the delivery of
workforce housing units in the City’s defined range of AMI. For purposes of
this policy, Workforce Housing units shall be defined as units affordable to a
household earning between 81 percent and 120 percent of AMI.
Sample binding legal instrument provisions:
“Agreement and Restrictive Covenants Affecting Real Property: Developer is
executing this Agreement in order to meet the requirements for an affordable
housing project under the City Code and the Land Use Code . . . “
The Meadows Condominiums
The Divide Condominiums
21
22
214
10/10/2019
12
The Meadows Architecture
23
24
215
10/10/2019
13
The Meadows Architecture
The Meadows Architecture
25
26
216
10/10/2019
14
The Meadows Parking
Condo Units EVDC Requirement Spaces
Required
Spaces
Provided
1 bedroom ‐ 18 1.75 spaces / unit
2 bedrooms ‐ 36 2.25 spaces / unit
3 bedrooms ‐ 18 2.25 spaces / unit
Total units ‐ 72 153 157
The Divide Architecture
27
28
217
10/10/2019
15
The Divide Parking
Condo Units EVDC Requirement Spaces
Required
Spaces
Provided
1 bedroom ‐ 4 1.75 spaces / unit
2 bedrooms ‐ 8 2.25 spaces / unit
3 bedrooms ‐ 4 2.25 spaces / unit
Total units ‐ 16 34 34
29
218
1
PROCEDURE FOR LAND USE PUBLIC HEARING
Applicable items include: Annexation, Amended Plats, Boundary Line Adjustments, Development
Plans, Rezoning, Special Review, Subdivision
1. MAYOR.
The next order of business will be the public hearing on PLANNING COMMISSION
ACTION ITEM 1.B. PRELIMINARY CONDOMINIUM MAP, THE MEADOW
CONDOMINIUMS AT WILDFIRE, WILDFIRE ROAD, WESTOVER
CONSTRUCTION, INC., RDA ASSOCIATES LLC, APPLICANTS.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, from the
Applicant, public comment, and written comments received on the
application.
Has any Trustee had any ex-parte communications concerning this
application(s) which are not part of the Board packet.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2. STAFF REPORT.
Review the staff report.
Review any conditions for approval not in the staff report.
3. APPLICANT.
The applicant makes their presentation.
4. PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
application. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
5. REBUTTAL.
219
2
The applicant will be allowed a rebuttal that is limited to or in response to
statements or questions made after their presentation. No new matters may
be submitted.
6. MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the application which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the
application.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
7. SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8. DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9. VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
220
COMMUNITY DEVELOPMENT Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Lancaster
From: Jeffrey Woeber, Senior Planner
Date: October 8, 2019
RE: Preliminary Condominium Map, The Meadow Condominiums at Wildfire, Wildfire
Road, Westover Construction, Inc., RDA Associates LLC, Applicants
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Conduct a public hearing and make a decision on a Preliminary Condominium Map for nine
buildings, with eight condominium units per building, on a lot 5.19 acres in size. This is a
component of the Wildfire Homes project.
Present Situation:
The subject property is 5.19± acres in size and is undeveloped. The site is zoned RM- Multi-
Family Residential. This is one component of the “Wildfire” project, which consists of 43 total
lots. Fourteen lots will be for detached single-family homes, 26 lots will be for townhomes, 2
lots will be for condominium projects (The subject condominium project, “The Meadows,” as well
as “The Divide.”) One lot will be dedicated for an office use benefiting Crossroads Ministry.
Also included are 10 outlots dedicated for open space, utilities, access, and drainage.
The Wildfire project has received approval of a rezoning, a Preliminary Plat and a Final Plat.
The Wildfire project property is to be annexed into the Town of Estes Park, with the annexation
approval contingent on the various required approvals for the project.
Proposal:
Applicant proposes to develop the vacant lot with nine condominium buildings, with eight units
per building, containing a total of 72 individual units. All units will be qualified as workforce
housing. Workforce housing, under the EVDC §11.4.C., requires, “…at least one (1) resident in
each housing unit annually submits an affidavit, including a copy of a W-2 form, to the Town
certifying that the resident is employed within the Estes Park School District R-3 Boundary
Map.”
As all units are proposed as workforce, the applicant is able to utilize the density and height
bonus incentives per EVDC §11.4. The maximum permitted density for this lot using the density
bonus incentive (200% of maximum base) is 84 units, however the applicant is proposing 72
with this project.
109
221
Per Chapter 3 of the EVDC, Review Procedures and Standards, the condominium project
requires review and action on a Development Plan. The Development Plan required Estes
Valley Planning Commission (EVPC) review and action. The EVPC approved the Development
Plan (nearly identical to the Preliminary Condominium Map), on August 20, 2019. At that same
meeting, the EVPC forwarded a recommendation of approval of the Preliminary Condominium
Map to the Town Board.
This is the Preliminary Condominium Map, which requires an EVPC review and approval
recommendation to the Town Board. Staff notes the Preliminary Condominium map is nearly
identical to the Development Plan.
Restrictive Covenant:
As the Board is aware, incentivized workforce housing projects are required by EVDC to be
accompanied by a set of either restrictive deeds or restrictive covenants, approvable by the
Town, to ensure long-term compliance with the workforce restrictions. The EVDC section reads
in part as follows:
"The Restrictive Covenant and Agreement shall be in a form acceptable to the Town or
County Attorney. Upon approval by the Town or County Attorney, the Restrictive
Covenant and Agreement shall be subject to review by the decision-making body with
the associated preliminary subdivision . . . ." § 11.4(E)(4)(b)
A Restrictive Covenant and Agreement document has been under review for The Meadow
Condominium development at Wildfire; the same restrictive covenants would also apply to The
Divide Condominium development.
The Town Attorney has compiled the Restrictive Covenant and Agreement document included
herein as Attachment 9. Staff, including legal staff, support this document and recommend its
approval.
The applicants have expressed concern about some of the provisions in the Town-
recommended Covenant document - in particular, the requirement for a Deed of Trust - and
have provided an alternate version with a different approach to ensuring compliance with the
workforce restriction that does not involve a Deed of Trust. The applicants’ team has asked that
their alternative Covenant document, along with several documents supporting that document,
be provided to Town Board. This alternative and related documents are included as
Attachments 4 through 8. The Wildfire applicants’ version appears as Attachment 5, with
Attachment 6 as a redline/strikeout comparison with the Town-proposed version. (Please note
that the final Town version, Attachment 9, may have minor differences from the version
compared in Attachment 6.)
As this covenant discussion is essentially a legal one, Planning staff will defer to the Town
Attorney for additional review and discussion following the close of our staff presentation on the
plat.
It is suggested that if the Board prefers to have more information or to depart from the Town
Attorney-presented covenant version, an overall decision on the plat be continued to your Oct.
22, 2019 Board meeting.
Review Process:
Preliminary Condominium Map. review and action under Chapter 10, Subdivisions. Section
10.5.H. applies to “Townhome Projects, Condominiums, and Other Forms of Airspace
110
222
Subdivisions,”
Review Criteria:
Depending upon the complexity of the project, this section may be a brief summary of the
standards of review or may involve a more detailed analysis of the standards based upon issues
relevant to any particular project.
1. Buildings and Lots. The applicant proposes 9 buildings with 72 total units. 100% of
units will be dedicated as workforce housing. All buildings conform to setback, height,
and density requirements.
2. Landscaping. The project is required to plant a minimum buffer of 15 feet along the
entire street frontage to include 1 tree for each 40 lineal feet and 1 shrub for every 15
lineal feet. The applicant meets this requirement.
A minimum buffer of 8 evergreen trees and 11 shrubs per 100 linear feet of district
boundary between single family and multi-family residential zoning is required. This
requirement has been met.
3. Water. Water is to be provided by the Town of Estes Park Water Division. The Division
has outlined requirements for the development. All comments have addressed by the
applicant.
4. Fire Protection. Estes Valley Fire Protection District provided comments regarding
emergency access. All comments have addressed by the applicant. Additional
requirements related to fire sprinklers and alarms will be addressed at the building
permit stage.
5. Electric. Electric service is to be provided by the Town of Estes Park Power and
Communications Division. The Division’s requirements have been met.
6. Sanitary Sewer. The Upper Thompson Sanitation District has no objections to this
proposal. Additional requirements will apply at time of building permitting.
7. Stormwater Drainage. A drainage study was submitted and reviewed by engineering
staff with the Town of Estes Park Public Works Department with this development.
Public Works has no objection.
8. Access. Access to the site is provided by Wildfire Road from Dry Gulch Road. The
applicant has proposed a left turn lane off of Dry Gulch Road to provide for safe
movement into the development. All infrastructure comments from the Public Works
Department have been satisfied.
9. Sidewalk/Trail. The applicant has proposed an 8’ multi-modal trail along Wildfire Road
to connect to the existing trail at Dry Gulch Road.
10. Parking. The applicant has proposed 154 parking spaces, which complies with parking
requirements within EVDC §7.11.
11. Outdoor Lighting. All lighting will be shielded and deflected downward in compliance
with EVDC §7.9.
12. Comprehensive Plan. This project conforms to goals and policies within the
Comprehensive Plan. Specifically as follows:
5.1 – Encourage a variety of housing types and pricing.
5.2 – Encourage housing for permanent residents of all sectors of the community
that is integrated and dispersed throughout existing neighborhoods.
5.5 – Provide for mixed-use developments which integrate commercial, housing,
employment, and service needs.
5.7 – Identify affordable housing opportunities on an ongoing basis.
5.9 – Support the creation of public and private funding sources for affordable
housing.
5.10 – Establish a linkage between new development and the provision of affordable
housing.
111
223
8.4 The Town and County will encourage redevelopment and infill as a primary tool
to create a compact community and to prevent sprawl.
Advantages:
Allows for a subdivision consistent with the Estes Valley Development Code.
Provides additional housing for permanent residents of the community in a variety of
housing options.
Provides for much needed workforce housing to benefit residents of the Estes Valley.
Disadvantages:
Increase in traffic and activity in the immediate area.
Action Recommended:
The Estes Valley Planning Commission unanimously recommended that the Town Board
approve the Preliminary Plat of the Wildfire Homes Subdivision on June 18, 2019.
Finance/Resource Impact:
None
Level of Public Interest
Medium: Public comments have been received, expressing no objection, and also pointing out
“disadvantages” to the Wildfire project. The overall project is of relatively high interest for the
Town of Estes Park.
All written comments are posted to www.estes.org/currentapplications.
Sample Motion:
I move for the approval of the Preliminary Condominium Map, The Meadow Condominiums at
Wildfire, as presented.
Attachments:
1. Statement of Intent
2. Application
3. Preliminary Condominium Map
(Note: Attachments 4 through 9 are identical to attachments 4 through 9 of The Divide
Condominiums at Wildfire; thus, they are not reproduced here. Please refer to The
Meadows Condominium materials for the following attachments.)
4. Restrictive Covenant and Agreement – (Wildfire Homes DK 9-30-19 clean)
5. Cover Letter from Atty. Payne
6. Restrictive Covenant Attachment A (Wildfire proposal - clean)
7. Restrictive Covenant Attachment B (Wildfire proposal – redline/strikeout)
8. Bank Opinion on Deed Restriction
9. Letter from Title Company
112
224
SUPPLEMENT TO
WILDFIRE STATEMENT OF INTENT
May 21, 2019
Applicants submit this Supplement to the Wildfire Statement of Intent for the purpose of
clarifying information and explaining revisions to the pending development applications
made as a result of the Staff and agency review:
1. The four Properties that make up the Wildfire Annexation are surrounding by
property within the Town limits and the right-of-way for Dry Gulch Road, but are not an
enclave under State statute.
2. The Townhome Subdivision for the Divide Townhomes at Wildfire is now a part
of the Wildfire Homes Subdivision. The Divide Townhomes are proposed to be
constructed on 26 lots that are smaller than the minimum lot size pursuant to EVDC §
10.5.H.7.c.
3. The Wildfire Homes Subdivision is accompanied by an application for vacation of
approximately the west 705 feet of the existing Wildfire Road right-of-way; the right-of-
way vacation is proposed to occur prior to the dedication of right-of-way for a different
alignment of Wildfire Road on the Wildfire Homes Subdivision plat.
4. The Development Plan for The Meadow Condominiums at Wildfire includes 72
multi-family units of workforce housing; the 72 units include the 42 units allowed as the
Maximum Base Net Density in Table 4-2 of the EVDC plus 30 bonus units (or 71% of
the Maximum Permitted Density Bonus for workforce housing pursuant to EVDC §
11.4.D). Because 100% of the 72 multi-family units will be restricted to workforce
housing, the 9 buildings will be 38 feet tall pursuant to the maximum building height
allowed for workforce housing in the RM Zone District in Table 4-2 of the EVDC.
5. The Development Plan for The Divide Condominiums at Wildfire includes 16
multi-family units of workforce housing; the 16 units equal two times (or 200%) the
Maximum Base Net Density in Table 4-2 of the EVDC as allowed pursuant to the
Maximum Permitted Density Bonus provisions of EVDC § 11.4.D. Because 100% of the
16 multi-family units will be restricted to workforce housing, the 2 buildings will be 38
feet tall pursuant to the maximum building height allowed for workforce housing in the
RM Zone District in Table 4-2 of the EVDC.
6. The Development Plans for The Meadow Condominiums and The Divide
Condominiums are both accompanied with applications for preliminary subdivision plats
pursuant to EVDC § 10.5.H.
113
225
2
7. A restrictive covenant for the purpose of assuring the long-term availability of the
workforce housing units in The Meadows Condominiums and The Divide
Condominiums As required by EVDC § 10.4.E.4., will be reviewed by the Town Board
with the preliminary subdivision plats for The Meadows Condominiums and The Divide
Condominiums.
8. Parcel C is included within the boundaries of the Northern Colorado Water
Conservancy District (“NCWCD”) and the Municipal Subdistrict. The owners of Parcels
A, B and D consent to the inclusion of their Properties into the NCWCD and, as
applicable, into the Municipal Subdistrict, and such owners have executed and
submitted petitions for such inclusions. The NCWCD approved the petitions on May 9,
2019.
9. A preannexation agreement has been submitted and is under review by the
Town Attorney. The Wildfire Preannexation Agreement will be on the Town Board’s
agenda the same night as the public hearing on the Wildfire Homes Annexation.
10. The previously requested waiver 1) has been revised in response to comments
from Public Works dated April 27, 2019, to increase the turn lane redirect taper length
from 160 feet to 266 feet in length.
114
226
WILDFIRE
STATEMENT OF INTENT
For Submittal on 4-18-19
BACKGROUND
Westover Construction, Inc. (“Westover”), Wildfire Development, LLC (“Wildfire”), RDA
Associates, LLC (“RDA”) and Crossroads Ministry of Estes Park, Inc. (“Crossroads”),
(referred to collectively herein as the “Petitioners”) are the owners of the Properties
described on the four exhibits attached hereto:
Exhibit A (“Parcel A” or the “Westover Property”);
Exhibit B (“Parcel B” or the “Wildfire Property”);
Exhibit C (“Parcel C” or the “RDA Property”); and
Exhibit D (“Parcel D” or the “Crossroads Property”).
The Properties are located in the northwest quarter of Section 20, Township 5 North,
Range 72 West of the 6th P.M., lying west of Dry Gulch Road, about ½ mile north of US
34 in the North End Planning Area of the Estes Valley. Although once on the very edge
of the Town, the Properties are surrounded by residential uses of various types and
densities within the Town limits. South of the Properties is an Estate (“E”) zoned
neighborhood (1/2 acre minimum) called Lone Pine Acres which was annexed to Estes
Park and developed in the 1960’s. To the southwest is the Ranch Meadows
Condominiums in the RM Multi-Family Residential zone district (“RM”) of the Town, and
to the west is the Reserve in the E-1 Estate (“E-1”) zone. North of the Properties is
Vista Ridge, an approximately 6-acre Estes Park Housing Authority project of 59
affordable and market rate condominiums, and The Neighborhood, an approximately
10-acre subdivision that includes small single-family lots and the Salud Family Health
Center on Dry Gulch Road. Just north of The Neighborhood are the Talons Pointe
Apartments and the Falcon Ridge Apartments and Townhomes, both of which are also
Estes Park Housing Authority affordable housing projects with a combined 89 units, and
the Good Samaritan Society – Estes Park Village, a senior community with 46 paired
homes, a 34-unit apartment complex and a 24-bed assisted living center.
DEVELOPMENT APPLICATIONS
Petitioners desire to annex the Properties to the Town, and then rezone and subdivide it
for the development of a variety of single family homes, townhomes and condominiums
to provide additional housing options in the Estes Valley in a manner that is compatible
with the surrounding neighborhood. Specifically, the applications submitted are as
follows:
1. Wildfire Homes Annexation of all four of the Properties, a total of 16.802 acres.
115
227
2
2. Wildfire Homes Rezone from the current zonings of: O Office (“O”), E Estate
(“E”), RE Rural Estate (“RE”) and CH Heavy Commercial (“CH”), to a
combination of: O Office (“O”), E Estate (“E”), R Single Family Residential (“R”),
and RM Multi-Family Residential (“RM”).
3. Wildfire Homes Subdivision is proposed to include 14 single family lots (six ½-
acre lots in the E zone, eight ¼-acre lots in the R zone), a townhome project
(The Divide Townhomes at Wildfire which is noted as Block 2 of this subdivision),
two lots for workforce housing condominium projects (The Meadow
Condominiums at Wildfire and the Divide Condominiums at Wildfire), 6 outlots for
drainage and other purposes, and one lot in the O zone for the relocation of
Crossroads Ministry of Estes Park, Inc. The existing commercial construction
operation now located on Parcel B will be relocated to a location outside of the
Properties.
4. Development Plan for The Meadow Condominiums at Wildfire (9 buildings, 8
units/building) on Lot 1 of the Wildfire Homes Subdivision meeting the current
EVDC definition of Workforce Housing Units.
5. Development Plan for The Divide Condominiums at Wildfire (2 buildings, 8
units/building) on Lot 16 of the Wildfire Homes Subdivision meeting the current
EVDC definition of Workforce Housing Units..
6. Townhome Subdivision for The Divide Townhomes at Wildfire a subdivision
of Block 2 of the Wildfire Homes Subdivision into 26 townhome lots meeting the
current EVDC definition of Workforce Housing Units
Petitioners believe that the housing they intend to provide is compatible with the
surrounding residential neighborhoods and needed to help provide additional housing
options for the residents of the Estes Valley.
PROJECT DESCRIPTION:
The units shall be eligible for the Maximum Permitted Density Bonus (Sec. 11.4.D) if at
least one (1) resident in each housing unit annually submits an affidavit, including a
copy of a W-2 form, to the Town certifying that the resident is employed within the Estes
Park School District R-3 Boundary Map). The Wildfire project is a 128-Unit
development of approximately 16 acres. The Wildfire Homes Subdivision will create six
Outlots (A,B,C,D,E and F) to provide transitions between internal density and zoning
changes. The total acreage of these Outlots is approximately 1.06 acres.
Annexation of the Properties is also proposed. Currently, the limits of the Town of Estes
Park surround the Properties and the perimeter of the Wildfire Homes Annexation as
proposed is 4611 feet long. Right-of-Ways are proposed as necessary on both Wildfire
Road and Dry Gulch Road for dedication of access to the proposed development. At
116
228
3
this time, there is no additional right of way width proposed on Wildfire Road, nor Dry
Gulch Road (although it appears that the recently constructed sidewalk along the west
side of Dry Gulch Road may be within the subject property limits). Additional right of
way may be pursued on Dry Gulch Road with the design of the north bound left turn
lane that has been determined to not be required (by LCUASS Standards), but is
proposed to be constructed for safety. Utility Easements are also dedicated for the
current utility needs as well as future needs associated with the buildout of this plan.
At buildout, the housing units in this development will be sold individually and used as
single family housing. HOA(s) are being formed and Covenants also formed for the
proposed use and care of the common spaces and improvements. The right of way for
Wildfire Road and the internal looping road will be dedicated to the Town for
maintenance.
ACCESS:
Currently the southern 9 acre lot (Parcel C) is vacant and has no internal roads. Parcel
C is adjacent to the Wildfire Road right of way for access as well as adjacent to the
internal road in Lone Pine Subdivision (North Ridge Lane). No daily access to North
Ridge Lane is proposed and only emergency access is proposed there. Emergency
access is also proposed at the southeast corner of the internal loop road. All lots that
are proposed have frontage on a public street or front on a private access easement
(Lots 2, 3, 4 and 5). Outlot B on the west side of the loop road is also for access that
would (in the future) possibly connect to properties to the west in the Reserve
Subdivision. This area adjacent to the west side of the Wildfire Homes Development is
in a Conservation Easement that does not allow roads; therefore, no physical road is
proposed. The ground there is relatively flat and can be accessed in an absolute
emergency. The Traffic Impact Study (attached with this submittal) has shown that
there is not a requirement for the left turn lane at Dry Gulch Road and Wildfire Road.
This development has planned for that and it is indicated as proposed for construction
with this submittal. A preliminary design for that improvement is also included herein.
It is a somewhat complicated improvement given the alignment of the current road, the
large storm sewer catch basin in the southwest quadrant, and the steep (retaining wall)
slope to the east with the floodplain of Dry Gulch Creek nearby. Additional right of way
is not felt absolutely necessary, but would be helpful to decrease the cost of that
possible improvement. A Traffic Memo has been submitted and the formal Traffic
Impact Study is also now included. Fire truck access is adequate for the appropriate
wheel base truck length and is shown specifically on the attached development sheets.
The steepest new internal main road profile grade is less than an 11% slope which
meets the EVDC. As mentioned above, emergency access loops are also proposed to
mitigate the possible long cul-de-sac concern.
Pedestrian access is provided with a looping sidewalk paralleling both sides of the
internal looping road as well as a detached sidewalk generally following the south side
of Wildfire Road leading to the large sidewalk on the west side of Dry Gulch Road.
Bicycle traffic is expected to share the road system in this subdivision as no individual
bicycle lanes are proposed.
117
229
4
OPEN SPACE:
This project includes six Outlots and other areas of open space as shown on the
attached designs. There are no outstanding or noticeable specific features on this site
(like wetlands, or rock outcrops, or significant trees).
UTILITIES:
This property is currently adjacent to all the main utilities. The main lines will be tied into
and extended for use by the proposed condominiums, Townhomes and single family
lots.
ELECTRIC:
Contact has been made with the Town of Estes Park Light & Power Department as well
as an Electric Engineer. The current plan is to come off of the existing three phase
power along the west line with drops to transformers to serve the western portions of
this subdivision. All proposed electric lines will be buried. The same plan is true for the
southern line which is a secondary line. Transformers are shown on the electric utility
plan to serve the units along the southern side of the development with all buried lines.
There has been some preliminary discussion about burying the lines along the south
side of the subdivision (with help from the southern adjoining lot owners in Lone Pine
Subdivision). The poles and service lines along the south line are on or near the Lone
Pine lots. Should a new buried power line be completed, agreements with southern lot
owners would be needed to re-connect their service lines. A 20’ Utility and Drainage
Easement is proposed along this south line within the Wildfire Homes Subdivision for
this utility improvement if an agreement comes together. If an agreement cannot be
made, then the plan as outlined above will move forward.
WATER:
A water main exists to the north of this development within the Neighborhood
Subdivision and the new main lines through this development will connect to that water
main (proposed here between Lots 15 and 16). This subdivision will include a looping
water main running west to east to connect to the existing main in Wildfire Road east of
the circle road. This connection will help to balance pressures in this area of Town.
SEWER:
Upper Thompson Sanitation District controls the sewer lines in this area of Estes Park
and gravity flow main lines are proposed in easily accessible locations to serve the
future units and connect to the existing sewer main line in Wildfire Road east of the
circle road.
PARKING:
The EVDC parking quantities are proposed or exceeded with this development. Internal
parking is provided on the ground floor of the 8-plexes (8 in each building), and
additional outside parking is also proposed. Code required parking for the proposed
multi-family and townhome units collectively is 239 spaces, while 251 spaces are being
provided. The Crossroads land use currently has 22 spaces and operates acceptably.
The proposed Crossroads site is planned to have 25 spaces.
118
230
5
STORMWATER:
Given that this property is close to a river (Dry Gulch Creek), and there are established
roadside ditches along Wildfire Road, the main drainage changes are higher on the lot
in the area where stormwater features are not currently present. A Preliminary
Drainage Report meeting the requirements of the Larimer County Stormwater
Management Manual is included with this submittal. Also, two relatively large detention
ponds (with outlet structures) are proposed to the north and south of the proposed
looping road. These detention ponds provide open space for the development and also
hold back the difference between historic runoff and the increased runoff from the
increased hard surfacing associated with this proposal. The ponds are provided with
relatively shallow side slopes in at least one direction for animal and public safety. The
net result downstream is that no increase in flow (Cubic Feet per Second) is proposed
to Dry Gulch Creek. Of course, disturbed areas will be seeded and mulched to promote
grass growth and to minimize erosion and look aesthetically pleasing.
SCHEDULE:
One general phase is proposed for buildout. A consecutive approach is planned for
construction. The current plan is to work from higher density (Townhomes) to the
Condominium units, and then single family lots. The units are planned to be built
simultaneously or consecutively without any delay following the over-lot grading, and
installation of roads and utility main lines.
CODE WAIVERS:
All of the appropriate Utility District, EVDC and other standards for development
(requirements) are met with this submittal except for the following three (3) items:
1) Redirect Taper length for north portion of the turn lane at Dry Gulch Road and
Wildfire Road. As mentioned above, this turn lane is not required by the cited
standard, but is proposed by the developers for safety of the future residence.
The taper and striping lengths for this proposed improvement equal or exceed
the similar left turn lane recently constructed just 500’ north of the proposed left
turn lane.
2) Appendix D.lll.B.6 where shared single family driveways may be shared by up to
four units. Lots 2-6 are proposed to share the driveway in the access easement
proposed. Lot 6 could access from Divide Circle, however not as safe as
accessing on the private driveway.
3) Multi-modal path detached and located on the south side of Wildfire Road. This
concrete walk is proposed at 8’ wide. Federal Standards (AASHTO) suggests a
10’ width. Reasoning for this waiver is limited right of way (some of the sidewalk
area is proposed in easements), site disturbance is limited with a smaller path
(keeping the roadside ditches along Wildfire Road), the uncommon (non-existing)
occurrence in Estes Park of a multi-modal path in a residential subdivision, and
most importantly, this proposed 8’ path connects to the existing ‘downstream’
119
231
6
path along the west side of Dry Gulch Road (recently constructed trail system
connection to the Town).
120
232
7
Exhibit A
to Statement of Intent
Description of “Parcel A” or the “Westover Property”
owned by Petitioner,
Westover Construction, Inc.
Current zoning: RE Rural Estate Zoning District
Address: 1851 Wildfire Road, Estes Park, CO 80517
Parcel Number: 25200-00-016
Legal Description:
A TRACT OF LAND LOCATED IN THE NW1/4 OF SECTION 20, TOWNSHIP 5
NORTH, RANGE 72 WEST OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED
AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SAID
SECTION 20, AS PRESENTLY MONUMENTED BY A G.L.O. BRASS CAP WITH ALL
BEARING RELATIVE TO THE WEST LINE OF SAID NW1/4, CONSIDERED AS
BEARING NORTH 01 DEGREES 40 MINUTES 11 SECONDS EAST THENCE NORTH
01 DEGREES 40 MINUTES 11 SECONDS EAST A DISTANCE OF 326.64 FEET TO
THE TRUE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES 47 MINUTES 30
SECONDS EAST A DISTANCE OF 362.39 FEET; THENCE NORTH 01 DEGREES 40
MINUTES 11 SECONDS EAST A DISTANCE OF 300.65 FEET; THENCE NORTH 89
DEGREES 48 MINUTES 19 SECONDS WEST A DISTANCE OF 362.39 FEET TO A
POINT ON THE WEST LINE OF SAID SECTION 20; THENCE SOUTH 01 DEGREES
40 MINUTES 11 SECONDS WEST A DISTANCE OF 300.56 FEET ALONG THE
WEST LINE OF SECTION 20 TO THE TRUE POINT OF BEGINNING. EXCEPT THAT
PORTION OF THE ABOVE DESCRIBED PROPERTY DEDICATED TO PUBLIC USE
AS DESCRIBED IN DEED OF DEDICATION RECORDED OCTOBER 16, 1978 IN
BOOK 1899 AT PAGE 114. COUNTY OF LARIMER, STATE OF COLORADO
121
233
8
Exhibit B
to Statement of Intent
Description of “Parcel B” or the “Wildfire Property”
owned by Petitioner,
Wildfire Development, LLC
Current zoning: CH Heavy Commercial Zoning District
Address: 1753 Wildfire Road, Estes Park, CO 80517
Parcel Number: 25200-00-015
Legal Description:
A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 20,
TOWNSHIP 5 NORTH, RANGE 72 WEST OF THE 6TH P.M., MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST 1/4 CORNER OF SAID SECTION 20 AS PRESENTLY
MONUMENTED BY A G.L.O. BRASS CAP, WITH ALL BEARINGS RELATIVE TO THE
WEST LINE OF THE NORTHWEST 1/4 OF SAID SECTION 20, CONSIDERED AS
BEARING NORTH 01 DEGREES 40 MINUTES 11 SECONDS EAST; THENCE
NORTH 01 DEGREES 40 MINUTES 11 SECONDS EAST A DISTANCE OF 326.64
FEET, THENCE SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST A
DISTANCE OF 362.39 FEET TO THE TRUE POINT OF BEGINNING, THENCE
CONTINUING SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST A DISTANCE
OF 343.15 FEET; THENCE NORTH 00 DEGREES 11 MINUTES 41 SECONDS EAST
A DISTANCE OF 300.63 FEET; THENCE NORTH 89 DEGREES 48 MINUTES 19
SECONDS WEST A DISTANCE OF 335.41 FEET; THENCE SOUTH 01 DEGREES 40
MINUTES 11 SECONDS WEST A DISTANCE OF 300.65 FEET TO THE TRUE POINT
OF BEGINNING, EXCEPT THAT PORTION DEDICATED FOR PUBLIC USE IN THE
DEED OF DEDICATION RECORDED OCTOBER 16, 1978 IN BOOK 1899 AT PAGE
114, ALSO KNOWN AS TRACT 2, HILLERY PARRACK EXEMPTION, COUNTY OF
LARIMER, STATE OF COLORADO
122
234
9
Exhibit C
to Statement of Intent
Description of “Parcel C” or “RDA Property”
owned by Petitioner,
RDA Associates, LLC
Current zoning: E Rural Estate Zoning District
Address: vacant property
Parcel Number: 25200-00-007
Legal Description:
A PORTION OF THE NW1/4 OF SECTION 20, TOWNSHIP 5 NORTH, RANGE 2
WEST OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE W1/4 CORNER OF SAID SECTION 20, MONUMENTED BY A
BRASS CAPPED PIPE WITH ALL BEARINGS RELATIVE TO THE SOUTH LINE OF
SAID NW1/4 OF SECTION 20 CONSIDERED AS BEARING SOUTH 89 DEGREES 47
MINUTES 30 SECONDS EAST AND THE TRUE POINT OF BEGINNING; THENCE
SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST AND THE TRUE POINT OF
BEGINNING; THENCE SOUTH 89 DEGREES 47 MINUTES 30 SECONDS EAST
1506.46 FEET TO A BRASS CAPPED PIPE; THENCE NORTH 18 DEGREES 25
MINUTES 33 SECONDS EAST 236.97 FEET TO THE SOUTH RIGHT OF WAY LINE
OF WILDFIRE LANE; THENCE SOUTH 77 DEGREES 53 MINUTES 15 SECONDS
WEST 163.92 FEET ALONG THE SOUTH RIGHT OF WAY LINE OF WILDFIRE LANE;
THENCE ALONG A TANGENT CURVE TO THE RIGHT 225.13 FEET, SAID CURVE
HAS A DELTA ANGLE OF 29 DEGREES 59 MINUTES 26 SECONDS A RADIUS OF
430.10 FEET, AND A CHORD BEARING NORTH 87 DEGREES 52 MINUTES 33
SECONDS WEST 222.57 FEET; THENCE NORTH 72 DEGREES 52 MINUTES 50
SECONDS WEST 250.00 FEET; THENCE ALONG A CURVE TO THE LEFT 288.62
FEET SAID CURVE HAS A DELTA ANGLE OF 16 DEGREES 59 MINUTES 13
SECONDS A RADIUS OF 973.48 FEET AND A CHORD BEARING NORTH 81
DEGREES 22 MINUTES 27 SECONDS WEST 287.56 FEET; THENCE NORTH 89
DEGREES 52 MINUTES 03 SECONDS WEST 666.81 FEET TO THE WEST LINE OF
THE NW1/4 OF SAID SECTION 20; THENCE LEAVING THE SOUTH RIGHT OF WAY
LINE OF WILDFIRE LANE SOUTH 01 DEGREES 35 MINUTES 08 SECONDS WEST
326.57 FEET ALONG THE WEST LINE OF THE NW1/4 OF SAID SECTION 20 TO
THE POINT OF BEGINNING.
COUNTY OF LARIMER, STATE OF COLORADO
123
235
10
Exhibit D
to Statement of Intent
Description of “Parcel D” or “Crossroads Property”
owned by Petitioner,
Crossroads Ministry of Estes Park, Inc.
Current zoning: O Office Zoning District
Address: 851 Dry Gulch Road, Estes Park, CO 80517
Parcel Number: 25200-00-910
Legal Description:
A PARCEL OF LAND IN THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 5 NORTH, RANGE
72 WEST OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED AS:
BEGINNING AT A POINT FROM WHENCE THE WEST QUARTER CORNER OF
SECTION 20 BEARS NORTH 89 DEGREES 46 MINUTES WEST 1506.3 FEET,
THENCE NORTH 18 DEGREES 26 MINUTES EAST 395.8 FEET, THENCE SOUTH
89 DEGREES 59 MINUTES EAST 161 FEET, THENCE SOUTH 1 DEGREE 46
MINUTES WEST 377 FEET, THENCE NORTH 89 DEGREES 46 MINUTES WEST
274.4 FEET TO THE POINT OF BEGINNING, EXCEPT THAT PORTION CONVEYED
IN DEED RECORDED SEPTEMBER 29, 1983 IN BOOK 2239 AT PAGE 1089 AND
SHOWN IN DEED RECORDED APRIL 22, 1986 AS RECEPTION NO. 86020283.
COUNTY OF LARIMER, STATE OF COLORADO.
124
236
125237
RecordOwner(s)MailingAddressPhoneEmailContactInformationApplicantMailingAddressPhoneEmailConsultantlEngineerMailingAddressPhoneEmailMINERALRIGHTCERTIFICATIONArticle65.5ofTitle24oftheColorado RevisedStatutesrequiresapplicantsforDevelopmentPlans!SpecialReviews,Rezoning,PreliminaryandFinalSubdivisionPlats,MinorSubdivision Platsifcreatinganewlot,andPreliminaryandFinalCondominiumMapstoprovidenoticeofthe applicationandinitialpublichearingtoallmineralestateownerswherethesurfaceestateandthe mineralestatehavebeensevered.Noticemustbegiven30dayspriortothefirsthearingonanapplicationfordevelopmentandmeetthestatutoryrequirements.IherebycertifythattheprovisionsofSection24-65.5-103CRShavebeqnmetNames:RecordOwnerPLEASEPRINT:ApplicantP____________________________________Signatures:_______________Date_3J’//’RecordOwnerDate.3,///‘tApplicant/—OWNER&APPLICANTCERTIFICATIONAsOwner,IcertifytheinformationandexhibitsherewithsubmittedaretrueandcorrecttothebestofmyknowledgeandIamtherecordowneroftheproperty.frAsApplicant,IcertifytheinformationandexhibitsherewithsubmittedaretrueandcorrecttothebestofmyknowledgeandinfilingtheapplicationIam actingwiththeknowledgeandconsentoftherecordowner(s)oftheproperty.IgrantpermissionforTownofEstesParkemployees,reviewingagencystaff,PlanningCommissioners,membersoftheTownBoardofTrustees,orLarimerCountyCommissionerswithproperidentificationaccesstomyppertyduringthereviewofthisapplication.IacknowledgeIhavereceivedtheEstesValleyDevelopmentReviewApplicationScheduleandamawarethatfailuretomeetthedeadlinesshownonsaidschedulemay resultinmyapplicationbeyingdelayedoranyapprovalofmyapplicationbecomingnullandvoid.Names:Applicant PLEASEPRINT:1/LA—.tCI4L/4rRecordOwnerPLEASignatures:____________________________RecordOwner_____________Date1’________Date_______Applicant______________________________________________________Revised20110109KT126238
127
239
128
240
129241
130242
131243
132244
133245
134246
UTILITIES DEPT Memo
To: Honorable Mayor Jirsa
Board of Trustees
Through: Town Administrator Machalek
From: Utilities Director Bergsten
Date: October 8, 2019
RE: Resolution 33-19 Bureau of Reclamation Repayment Contract for the Delivery of
Municipal and Industrial Water
☐PUBLIC HEARING ☐ORDINANCE ☐ LAND USE
☐CONTRACT/AGREEMENT ☒ RESOLUTION ☐ OTHER______________
QUASI-JUDICIAL ☐ YES ☐ NO
Objective:
To provide high-quality, reliable and efficient water service for the benefit of our citizens,
guests, and employees.
Present Situation:
In the 1940s the Town provided treated water to the Bureau of Reclamation’s (BOR’s)
Colorado-Big Thompson Project (C-BT Project) staff and construction operations. Within
the Estes Valley, the C-BT Project included; the eastern side of the Alva B. Adams
Tunnel, the East Portal outlet, Rams Horn tunnel, Marys Lake and Marys Hydro Power
Plant, Prospect Mountain Tunnel, Lake Estes and the Estes Hydro Power Plant. The
BOR repaid the Town with the perpetual, annual supply, of 500 acre-feet of water.
The repayment contract was last renewed in 1994 and expires on November 23, 2019.
The attached contract is substantially complete and has been reviewed and approved
by the Town’s special counsel (Rick Fendel, Petrock Fendel Poznanovic, P.C.) and
staff.
Proposal:
Staff proposes the Town Board approve the contract (attached) by resolution.
Advantages:
●There is not a dated termination which relieves us of future renegotiations.
●This water supply of 500 acre-feet is not subject to the annual Northern Colorado
Conservancy District quota, which on average reduces raw water supply by 40%
●Having this water supply helps keep our tap fees low. (today’s equivalent market
value is $48 million)
135
247
Disadvantages:
None
Action Recommended:
Staff recommends approving the contract through the attached resolution.
Finance/Resource Impact:
Small. We estimate this will increase the Water’s Division’s expenses by 0.2%.
Level of Public Interest
Low; We work hard to secure our customers’ water future so it doesn’t become a public
concern.
Sample Motion:
I move to approve/deny the Resolution.
Attachments:
Resolution 33-19, Bureau of Reclamation Repayment Contract
Link - Repayment Contract Between the United States and the Town of Estes Park for
the Delivery of Municipal and Industrial Water
136
248
RESOLUTION 33-19
A RESOLUTION APPROVING A REPAYMENT CONTRACT BETWEEN THE UNITED
STATES AND THE TOWN OF ESTES PARK FOR THE DELIVERY OF MUNICIPAL
AND INDUSTRIAL WATER
WHEREAS, the Town desires to procure water from the United States under the
terms of the contract referenced in the title of this resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
1. The Board approves and authorizes the Mayor to sign the intergovernmental
agreement referenced in the title of this resolution in substantially the form now
before the Board.
2. The Board repeals all resolutions or parts of resolutions in conflict with this
resolution, but only to the extent of such inconsistency.
DATED this day of , 2019.
TOWN OF ESTES PARK
_____________________________________
Mayor
ATTEST:
_________________________________
Town Clerk
137
249
UNITED STATES
DEPARTMENT OF THE
INTERIOR
BUREAU OF RECLAMATION
Colorado-Big Thompson Project, Colorado
REPAYMENT CONTRACT
BETWEEN THE UNITED
STATES
AND THE TOWN OF ESTES
PARK
FOR DELIVERY OF MUNICIPAL AND INDUSTRIAL
WATER
TABLE OF CONTENTS
ARTICLE NO.
PAGE
1. EXPLANATORY RECITALS
1
2. DEFINITIONS
2
3. EFFECTIVE DATE AND TERM OF CONTRACT
3
4. WATER TO BE FURNISHED, POINT OF DELIVERY, POINT OF DIVERSION,
MEASUREMENT, AND RESPONSIBILITY FOR WATER DELIVERY
3
5. PAYMENTS FOR CONSTRUCTION, POWER INTERFERENCE, AND OM&R
4
6. RIGHT-OF-WAY EASEMENTS
5
7. WATER SHORTAGES OR INTERRUPTIONS IN SERVICE
5
8. TERMINATION OF CONTRACT
5
250
9. CONTRACT NOT A WATER RIGHT
6
10. APPLICABLE LAW
6
11. SEVERABILITY
6
12. ENVIRONMENTAL COMMITMENTS
6
STANDARD CONTRACT ARTICLES
7
13. CHARGES FOR DELINQUENT PAYMENTS
8
14. GENERAL OBLIGATION — BENEFITS CONDITIONED UPON PAYMENT
8
15. EMERGENCY RESERVE FUND (One-Time Deposit)
8
16. CONFIRMATION OF CONTRACT
9
17. NOTICES
10
18. CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS
10
19. OFFICIALS NOT TO BENEFIT
10
20. CHANGES IN TOWN'S ORGANIZATION
10
21. ASSIGNMENT LIMITED—SUCCESSORS AND ASSIGNS OBLIGATED
11
22. BOOKS, RECORDS, AND REPORTS
11
23. RULES, REGULATIONS, AND DETERMINATIONS
11
251
24. PROTECTION OF WATER AND AIR QUALITY
11
25. EQUAL EMPLOYMENT OPPORTUNITY
12
26. COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS
13
27. CERTIFICATION OF NONSEGREGATED FACILITIES
13
28. MEDIUM FOR TRANSMITTING PAYMENTS
14
29. CONTRACT DRAFTING CONSIDERATIONS
14
252
30. CONSTRAINTS ON THE AVAILABILITY OF WATER 14
Exhibit A..................................................................................................................................... A-1
Exhibit B ..................................................................................................................................... B-
1
Exhibit C ..................................................................................................................................... C-
1
253
1
2 UNITED STATES
3 DEPARTMENT OF THE INTERIOR
4 BUREAU OF RECLAMATION
5 Colorado-Big Thompson Project, Colorado
6
7 REPAYMENT CONTRACT BETWEEN
8 THE UNITED STATES AND THE TOWN OF ESTES PARK
9 FOR THE DELIVERY OF MUNICIPAL AND INDUSTRIAL WATER
10
11 THIS CONTRACT, made this day of , 20 , pursuant
generally
12 to the Act of June 17, 1902 (32 Stat. 388), and acts amendatory thereof or supplementary
thereto,
13 particularly, but not limited to, the Act of August 9, 1937 (50 Stat. 564, 592, 595), and
14 Subsection 9(c) of the Act of August 4, 1939 (53 Stat. 1194), as amended and
supplemented, all
15 collectively known as the Federal Reclamation laws, between the UNITED STATES OF
16 AMERICA, hereinafter called the “United States,” acting through the Secretary of the
Interior,
17 and the Town of Estes Park, Colorado, acting by and through its Water Enterprise,
hereinafter
18 called the “Town,” each sometimes hereinafter individually called “Party,” and
sometimes
19 hereinafter collectively called
“Parties.” 20
21 1. EXPLANATORY RECITALS
22
23 The following statements are made in explanation:
24
25 a. WHEREAS, the United States has constructed the Colorado-Big
Thompson
26 (C-BT) Project in the State of Colorado, for the development and use of the waters of the
27 Colorado and Big Thompson Rivers for irrigation, municipal, industrial, hydropower
generation
28 and other beneficial
purposes; and 29
30 b. WHEREAS, the United States and the Town entered into Amendatory
Contract
31 No. 4-07-60-W1075 (Amendatory Contract) for annual delivery of 500 acre-feet (AF) of
32 municipal and industrial (M&I) water at the points of connection located at the Estes
Powerplant
33 penstocks and the Marys Lake Powerplant
gatehouse; and 34
35 c. WHEREAS, the Amendatory Contract expires on November 23, 2019;
and 36
254
37 d. WHEREAS, the Town has requested a renewal of the Amendatory
Contract
38 pursuant to Federal Reclamation laws and the laws of the State of
Colorado; and 39
40 e. WHEREAS, the Town has requested to terminate the connection at the
Estes Park
41 Powerplant penstocks, described in Paragraph 1.b. above, but still has need of the Estes
Park
42 Powerplant penstocks to deliver water to Lake Estes when the Town desires to exchange
water to
43 the Town’s existing intake on Glacier Creek and the proposed Big Thompson Intake for
the
44 Glacier Creek Water Treatment Plant
(GCWTP); and 45
255
1 f. WHEREAS, the Town has submitted District Court, Water Division 1
water right
2 applications, Case Nos. 18CW3229, 2019CW3065, and 2019CW3080 for water rights
and
3 appropriative rights of exchange which would confirm water rights for and right of
exchange to
4 the new point of diversion at the Town’s existing intake on Glacier Creek and the
proposed Big
5 Thompson Intake as an additional supply to the
GCWTP; and 6
7 g. WHEREAS, the United States agrees to enter into a repayment Contract
pursuant
8 to the applicable Federal laws, rules and regulations and
state laws. 9
10 h. NOW, THEREFORE, in consideration of the mutual and dependent
covenants
11 herein contained, it is hereby mutually agreed as follows:
12
13 2. DEFINITIONS
14
15 Where used in this Contract:
16
17 a. “Annual Water Supply” shall mean the 500 acre-feet of M&I water the Town
18 receives during the 12-month period November 1 through October 31 from the Project
facilities
19 in accordance with Article 25 of Contract No. 9-07-70-W0020 between the United States
and the
20 Northern Colorado Water Conservancy
District. 21
22 b. “Contract” shall mean this Contract No. 199F650068. 23
24 c. “Contracting Officer” shall mean the Secretary of the United States Department
of the
25 Interior or the Secretary’s duly authorized
representative. 26
27 d. “Municipal and Industrial use” shall mean the use of Project water for
municipal,
28 industrial, and miscellaneous purposes including but not limited to residential lawns other
than
29 the use of Project water to irrigate land primarily to produce commercial agricultural
crops or
30 l
i
v
e
s
t
o
c
256
k
.
31
32 e. “Operation, Maintenance, and Replacement (OM&R) costs” shall mean those
33 expenses incurred in connection with the water control, and activities and actions
necessary to
34 ensure the continued structural integrity and operational reliability of Project Works,
including
35 major nonrecurring maintenance on a Project Work that is intended to ensure the
continued safe,
36 dependable, and reliable delivery of authorized Project benefits and appropriate charges
for
37 associated indirect costs and administration as determined by the Contracting Officer, and
shall
38 include such additional costs as hereinafter provided. Such expenses shall include those
required
39 to remedy conditions brought about by ordinary use of the Project or to restore or replace
40 components of the existing Project and shall not include expenses to increase or enlarge
such
41 works beyond the purposes for which they were originally authorized and
constructed. 42
43 f. "Olympus Dam Outlet Works” shall mean those components of the Olympus
Dam
44 that enable the release of water from Lake Estes to both the Olympus Tunnel and the Big
45 Thomps
on River. 46
47 g. “Project" shall mean the C-BT Project, Colorado. 48
257
1 h. “Project Works” shall mean all C-BT Project facilities which are necessary to
store
2 and deliver the Annual Water Supply under the terms of this
Contract. 3
4 i. “Water Supply System” shall mean the facilities owned, operated, and
maintained by
5 the Town for delivery of
municipal water. 6
7 8
9 3. EFFECTIVE DATE AND TERM OF CONTRACT
10
11 This Contract shall become effective on the date of execution and the Amendatory
12 Contract shall terminate on that same date. This Contract shall remain in full force and
effect
13 unless and until otherwise terminated under the provisions of paragraph
6, below. 14
15 4. WATER TO BE FURNISHED, POINT OF DELIVERY, POINT OF
DIVERSION,
16 MEASUREMENT, AND RESPONSIBILITY FOR WATER DELIVERY
17
18 a. Water to be delivered to the Town pursuant to this Contract shall be delivered
at the
19 point of connection to the Marys Lake Powerplant Gatehouse or the Olympus Dam
Outlet Works
20 at such times and flow rates as requested by the Town and shall be measured by the
Town
21 utilizing the Town’s Water Supply System. Such delivery shall be limited by the capacity
of the
22 water supply connections and the Town's Water
Supply System. 23
24 b. The water to be delivered from the Olympus Dam Outlet Works pursuant to
this
25 Contract shall be released from Lake Estes at such time and in such quantity to offset the
Town’s
26 diversion of water from approved intake points upstream of
Lake Estes. 27
28 i. As of the date of execution of this Contract, the Town’s Glacier Creek
Water
29 Treatment Plant intake is located on the Glacier Creek tributary at NE1/4, Section 5,
Township 4
30 North, Range 73 West, P.M., Larimer County, Colorado, as shown on attached
Exhibit A. 31
32 ii. The Town has applied for an additional point of diversion at the Big
Thompson
33 Intake located on the Big Thompson River approximately 200 feet downstream of the
confluence
34 with Glacier Creek.
258
35 This point is further described as being located in the
36 NE1/4, Section 4, Township 4 North, Range 73 West, P.M. Larimer County, Colorado, as
shown
37 on attached
Exhibit A. 38
39 iii. The Town shall be solely responsible for making whatever arrangements
are
40 necessary to divert or exchange Project water under this Contract pursuant to Colorado
law
41 including, but not limited to, obtaining any necessary approvals from the State of
Colorado’s
42 Division of Water
Resources. 43
44 c. The Town shall measure the Annual Water Supply from the Big Thompson
River
45 system at the appropriate intake upstream of
Lake Estes. 46
47 d. The United States shall not be responsible for the control, carriage, handling,
use,
48 disposal, or distribution of water furnished to the Town pursuant to this Contract beyond
the
259
1 points of delivery, and the Town shall hold the United States harmless on account of
damage or
2 claim of any nature, including property damage, personal injury, or death arising out of or
3 connected with the control, carriage, handling, use, disposal, or distribution of such water
4 delivered to the Town. The Parties to this Contract understand and agree that the Town is
5 relying on and does not waive, by any provision of this Contract, the monetary limitation
or
6 terms, or any other rights, immunities, and protections provided by the Colorado
Governmental
7 Immunity Act, 24-10-101 et seq., C.R.S., as may be amended or otherwise available to
the Town
8 or any of its officers, agents, or
employees. 9
10 e. The Town shall not be responsible for the OM&R of the Project Works and
11 the United States shall protect, indemnify, and hold the Town harmless from and against
all
12 claims, demands, and causes of action of any nature resulting from or in any manner
connected
13 with the OM&R of Project facilities within the limits of the Federal Tort Claims Act
(28 U.S.C. 14 2671-2680).
15
16 5. PAYMENTS FOR CONSTRUCTION, POWER INTERFERENCE, AND
OM&R
17
18 a. The Town’s 40-year-construction cost repayment obligation to the United
States for
19 the Annual Water Supply was completed on December 31, 1992. No further construction
20 obligation is due and no annual construction charge will be assessed for water delivered
pursuant
21 to this
Contract. 22
23 b. The Town will pay the United States an annual obligation consisting of two
24 components as
described below. 25
26 i. A charge for power interference for each acre-foot of the Annual Water
Supply
27 that is diverted at Mary’s Lake Powerplant Gatehouse that shall be the product of the
energy
28 component of the Loveland Area Power Rate of the Western Area Power Administration
and the
29 average Kilowatt Hour per acre-foot as determined by the Contracting Officer for power
30 generation at the Marys Lake, Estes, Pole Hill, and Flatiron
Powerplants. 31
32 ii. The Town’s proportionate share, as determined by the Contracting Officer,
of the
33 annual OM&R costs, calculated on a fiscal year (October 1 to September 30) basis,
incurred by
34 the United States on the Project Works for the Annual Water Supply. Said Project Works
260
shall
35 include Green Mountain Dam and Reservoir; Granby Dam and Reservoir, Granby
Pumping
36 Plant, and Granby Pump Canal; Willow Creek Dam and Reservoir, Willow Creek
Pumping
37 Plant, and Willow Creek Canal; Shadow Mountain Dam and Reservoir; Alva B. Adams
Tunnel;
38 East Portal Reservoir; Aspen Creek Siphon; and Ram's Horn Tunnel. The annual OM&R
charge
39 shall be the product of the annual OM&R costs for the facilities listed above divided by
the total
40 amount (acre-feet) of water conveyed through the Alva B. Adams Tunnel during the 12-
month
41 period of November 1 through October 31 and the Annual Water Supply (Total OM&R /
Total
42 AF x 500 AF). The annual OM&R charges shall be based on estimates furnished by the
43 Contracting Officer. In the event the estimated annual OM&R costs are less than the
actual
44 annual OM&R cost, or whenever it is determined by the Contracting Officer that a deficit
will
45 occur in the annual OM&R, the Contracting Officer shall bill the Town for the amount of
the
46 deficiency. In the event the estimated annual OM&R costs exceed the actual annual
OM&R
47 costs, the excess will be carried forward and applied as a credit to the next annual OM&R
261
1 payment. The OM&R costs shall be paid in advance based on the Contracting Officer’s
2 estimated OM&R costs for the Project for the following
fiscal year. 3
4 c. Notwithstanding that all works constructed on the Estes Powerplant penstocks
and on
5 United States right-of-way including all valves, meters, meter vault(s), and pipelines,
except all
6 pipelines beyond the meter vault(s), shall be and remain a part of the Project Works, the
Town
7 shall be responsible for OM&R of such works at the sole expense of
the Town. 8
9 d. Notwithstanding that the water tap outlet at the Mary’s Lake Gatehouse, including a
10 24-inch diameter steel sleeve, flanges, bolts, gaskets, and regulating valve, shall be and
remain a
11 part of the Project Works, the Town shall be responsible for OM&R of such works at the
sole
12 expense of
the Town. 13
14 e. The annual payments required by this Article shall be billed annually by the
15 Contracting Officer and shall become due and payable on December 31 of each
16 calendar year (January 1 to December 31), or within 30 days of receipt of the bill if such
bill is
17 not received by the Town prior to December 1 of each calendar year, for the term of this
18 C
ontrac
t. 19
20 f. All the Town's financial obligations under this Contract are contingent upon
21 appropriation, budgeting, and availability of specific funds to discharge those obligations.
22 Nothing in this Contract constitutes a debt, a direct or indirect multiple fiscal year
financial
23 obligation, a pledge of the Town's credit, or a payment guarantee by the Town to the
United
24 States. However, the payment of charges becoming due pursuant to this Contract is a
condition
25 precedent to receiving benefits under this Contract, as stipulated in Article
14 herein. 26
27
28 6. RIGHT-OF-WAY EASEMENTS
29
30 The Town has granted perpetual right-of-way easements to the United States for
31 construction of Project facilities and all contemplated construction has been completed by
the
32 United States. The United States shall have the right to continued perpetual use of such
right-of-
33 way easements until they are formally relinquished or abandoned by the
United States. 34
35 7. WATER SHORTAGES OR INTERRUPTIONS IN SERVICE
36
262
37 The Contracting Officer will use all reasonable means to prevent a condition of
shortage
38 or interruption in the Annua1 Water Supply availab1e to the Town. However, should
shortages
39 or interruptions occur, in no event shall any liability accrue against the United States or
any of its
40 officers, agents, or employees for any damage, direct or indirect, arising out of such
shortages or
41 interruptions. The Town will periodically provide the United States with a list of
individuals that
42 Reclamation should provide with a schedule for water conveyance through the Alva B.
Adams
43 Tunnel, and the United States will periodically provide a copy of the schedule to these
44 individuals, and will notify the Town, by telephone, of any unscheduled operational
interruptions
45 or outages that may exceed three (3)
consecutive days. 46
47 8. TERMINATION OF CONTRACT
48
263
1 a. Upon failure of the Town to perform any of the obligations under this Contract,
the
2 Contracting Officer may give notice in writing of the nature of the default and require the
Town
3 to perform within a period specified in such notice, but not less than 60 days except in
the
4 case of an emergency. Upon the Town’s failure to perform as required in the notice, the
5 Contracting Officer may elect to terminate this Contract or may withhold water delivery
until the
6 Town performs. The Contracting Officer’s options under this Article shall be in addition
to any
7 other remedies available under law
or policy. 8
9 b. The Town shall have the right to terminate this Contract in the event there is no
10 further need of the water service provided herein. Notice of intent by the Town to
terminate this
11 Contract shall be provided in writing to the Contracting Officer at least 60 days prior to
the
12 termination date proposed
13 . 14
15 c. Termination of this Contract for any cause shall not relieve the Town of any
16 obligations incurred by way of this Contract prior to
termination. 17
18 9. CONTRACT NOT A WATER RIGHT
19
20 No provisions of this Contract, nor any renewal thereof, nor the furnishing of
water
21 hereunder will be construed to bind the United States after the expiration of this Contract,
or as
22 the basis of a
water right. 23
24 10. APPLICABLE LAW
25
26 The Town shall be subject to all applicable Federal, State, and local laws in its
27 performance of its obligations under this
Contract. 28
29 11. SEVERABILITY
30
31 In the event that any one or more of the provisions contained herein is, for any
reason,
32 held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
33 unenforceability will not affect any other provisions of this Contract, but this Contract is
to be
34 construed as if such invalid, illegal or unenforceable provisions had never been contained
35 herein, unless the deletion of such provision or provisions would result in such a material
change
36 so as to cause the fundamental benefits afforded the Parties by this Contract to become
37 unavailable or
264
materially altered. 38
39 12. ENVIRONMENTAL COMMITMENTS
40
41 A site-specific Environmental Assessment (Project No. 2017-34) was conducted
for this
42 Contract and Finding of No Significant Impact (FONSI) No. 2019-03 was issued. The
following
43 mitigation measures and environmental commitments measures incorporated from
FONSI No.
44 2019-03 will be implemented and followed by Estes Park and their contractors.
Mitigation
45 measures are intended to minimize or eliminate environmental effects associated with the
future
46 construction of the Big Thompson Intake and expansion of the
GCWTP. 47
48 a. Colorado – Big Thompson Project Operations:
265
2 i. Contract Water deliveries cannot adversely impact with Colorado – Big
3 Thompson Project operation and maintenance
activities. 4
5 ii. All water must be transported, released and/or exchanged in accordance
with
6 Colorado
water law. 7
8 b. Future Glacier Creek Water Treatment Plant Expansion:
9
10 i. Visual Resources: Future expansion and improvement of Glacier Creek
Water
11 Treatment Plant and construction of the Big Thompson Intake shall incorporate the use of
natural
12 screening and nonreflective natural colors in each
feature’s design. 13
14 ii. Cultural Resources: To mitigate any potential impacts to historic resources
15 associated with Contract Water exchanges from Lake Estes to the Big Thompson Intake,
Estes
16 Park shall complete and submit to Reclamation, cultural resource inventories prior to
17 construction of the Big Thompson Intake and Glacier Creek Water Treatment Plant
Pipeline. All
18 cultural resource inventories shall include a Class III surveys of potential disturbances
within
19 construction footprint, staging areas, and borrow/disposal sites. Estes Park shall
coordinate
20 inventories with Reclamation archaeologist and all contracted Cultural Resource
professional
21 must hold valid permits issued by the state of Colorado. More information on permit and
22 inventory requirements can be found at: https://www.historycolorado.org/archaeology-
and-
23 paleontology-
law-permits. 24
25 Once cultural resource inventories are completed, Reclamation shall
determine if any
26 sites eligible to the National Register of Historic Places and complete the National
Historic
27 Preservation Act Section 106 consultation process with the Colorado State Historical
28 Preservation Office. In the event historic resources are identified and would be adversely
29 affected by the Proposed Action, mitigation measures shall be developed and
implemented
30 pursuant to a Memorandum of Agreement (MOA) between Reclamation, Colorado State
31 Historical Preservation Office, and the Town of Estes Park. Reclamation shall also invite
the
32 Advisory Council on Historic Preservation and any eligible local historic preservation
entity to
33 participate in development of
the MOA. 34
266
35 In the unlikely event that historic resources are encountered during all ground
36 disturbing construction activities, all construction related activities shall be stopped and
37 Reclamation notified. Reclamation shall evaluate the discovery and complete the
National
38 Historic Preservation Act 106 consultation process and implement protective measures as
39 appropriate, prior to resuming ground disturbing construction
activities 40
41 c. Clean Water Act 404 Compliance: Estes Park shall consult with the Army
Corps of
42 Engineers if construction of facilities necessary to use the Contract Water requires Clean
Water
43 Act Section 404 compliance, which may include obtaining a
404 permit. 44
45
46 47
48 STANDARD CONTRACT ARTICLES
267
2 13. CHARGES FOR DELINQUENT PAYMENTS
3
4 a. The Town shall be subject to interest, administrative, and penalty charges on
5 delinquent payments. If a payment is not received by the due date, the Town shall pay an
6 interest charge on the delinquent payment for each day the payment is delinquent beyond
the due
7 date. If a payment becomes 60 days delinquent, the Town shall pay, in addition to the
interest
8 charge, an administrative charge to cover additional costs of billing and processing the
9 delinquent payment. If a payment is delinquent 90 days or more, the Town shall pay, in
addition
10 to the interest and administrative charges, a penalty charge for each day the payment is
11 delinquent beyond the due date, which shall be calculated on the remaining balance of the
12 payment due at the rate of 6 percent per year. The Town shall also pay any fees incurred
for debt
13 collection services associated with a delinquent
payment. 14
15 b. The interest rate charged shall be the greater of either the rate prescribed
quarterly in
16 the Federal Register by the Department of the Treasury for application to overdue
payments, or
17 the interest rate of 0.5 percent per month. The interest rate charged will be determined as
of the
18 due date and remain fixed for the duration of the
delinquent period. 19
20 c. When a partial payment on a delinquent account is received, the amount
received
21 shall be applied first to the penalty charges, second to the administrative charges, third to
the
22 accrued interest, and finally to the overdue
payment. 23
24 14. GENERAL OBLIGATION — BENEFITS CONDITIONED UPON
PAYMENT
25
26 a. The obligation of the Town to pay the United States as provided in this
Contract is a
27 general obligation of the Town notwithstanding the manner in which the obligation may
be
28 distributed among the Town's water users and notwithstanding the default of individual
water
29 users in their obligation to
the Town. 30
31 b. The payment of charges becoming due pursuant to this Contract is a condition
32 precedent to receiving benefits under this Contract. The United States shall not make
water
33 available to the Town through Project facilities during any period in which the Town is in
arrears
268
34 in the advance payment of charges due the United States under this Contract. The Town
shall
35 not deliver water under the terms and conditions of this Contract for lands or Parties that
are in
36 arrears in the advance payment of rates as levied or established by
the Town. 37
38 15. EMERGENCY RESERVE FUND (One-Time Deposit)
39
40 The Town has provided a letter dated (Exhibit B), attached
41 and incorporated into this Contract that adequately demonstrates to the Contracting
Officer that
42 sufficient funds are available and will be available throughout the term of this Contract
for the
43 Town to meet its obligations under the Contract in the event of an emergency. The Town
shall
44 maintain unencumbered cash balances to meet costs incurred during periods of special
stress
45 caused by damaging droughts, storms, earthquakes, floods, or other emergencies
threatening or
46 causing interruption of water service. Funding that is to be provided from the Town’s
47 unencumbered cash balances shall be available within a reasonable time to meet expenses
for the
269
1 purposes described in this Contract. This fulfills the requirement for the following
Standard
2 Article:
3
4 a. Commencing on execution of this Contract, the Town shall establish and
maintain
5 a reserve fund or demonstrate to the satisfaction of the Contracting Officer that other
funds are
6 available for use as an emergency reserve fund. The Town shall establish and maintain
that
7 emergency reserve fund to meet costs incurred during periods of special stress caused by
8 damaging droughts, storms, earthquakes, floods, or other emergencies threatening or
causing
9 interruption of water service.
10
11 b. The Town shall accumulate the reserve fund with a one-time deposit or
investment
12 of not less than $ to a Federally insured, interest or dividend-bearing
account or in
13 securities guaranteed by the Federal Government; Provided, That money in the reserve
fund,
14 including accrued interest, shall be available within a reasonable time to meet expenses
for such
15 purposes as those identified in paragraph (d) herein. Following an emergency
expenditure from
16 the fund, annual deposits of $ shall continue from the year following the
emergency
17 expenditure until the previous balance is restored. After the previous balance is restored,
the
18 annual deposits may be discontinued and the interest earnings shall continue to
accumulate and
19 be retained as part of the reserve fund.
20
21 c. Upon mutual written agreement between the Town and the Contracting
Officer,
22 the accumulated reserve fund may be adjusted to account for risk and uncertainty
stemming from
23 the size and complexity of the Project; the size of the annual OM&R budget; additions to,
24 deletions from, or changes in the Project Works; and OM&R costs not contemplated
when this
25 Contract was executed.
26
27 d. The Town may make expenditures from the reserve fund only for meeting
routine
28 or recurring OM&R costs incurred during periods of special stress, as described in
paragraph
29 (a) herein; for meeting unforeseen extraordinary OM&R costs; or for meeting unusual or
270
30 extraordinary repair or replacement costs; or for meeting betterment costs (in situations
where
31 recurrence of severe problems can be eliminated) during periods of special stress.
Proposed
32 expenditures from the fund shall be submitted to the Contracting Officer in writing for
review
33 and written approval prior to disbursement. Whenever the reserve fund is reduced below
the
34 current balance by expenditures therefrom, the Town shall restore that balance by
annual
35 deposits as specified in paragraph (b) herein.
36
37 e. During any period in which any of the Project Works are operated and
38 maintained by the United States, the Town agrees the reserve fund shall be available for
like use
39 by the United States.
40
41 f. On or before of each Year, the Town shall provide a current
statement of
42 the principal and accumulated interest of the reserve fund account to the Contracting
Officer.
43
44 16. CONFIRMATION OF CONTRACT
45
46 The Town has provided a letter dated (Exhibit C), attached and
47 incorporated into this Contract, which fulfills the requirement of the following
Standard Article: 48
271
1 Promptly after the execution of this Contract, the Town shall provide evidence to
the
2 Contracting Officer that, pursuant to the laws of the State of Colorado, the Town is a
legally
3 constituted entity and the Contract is lawful, valid, and binding on the Town. This
Contract
4 shall not be binding on the United States until such evidence has been provided to the
5 Contracting Officer’s satisfaction. In addition to other forms of evidence to meet the
6 requirements of this Article, the Town may provide or the Contracting Officer may
require a
7 certified copy of a final decree of a court of competent jurisdiction in the State of
Colorado,
8 confirming the proceedings on the part of the Town for the authorization of the execution
of this
9 Contract.
10
11 17. NOTICES
12
13 Any notice, demand, or request authorized or required by this Contract shall be
deemed
14 to have been given, on behalf of the Town, when mailed, postage prepaid, or
delivered to: 15
16 Area Manager
17 Eastern Colorado Area Office
18 Bureau of Reclamation
19 11056 West County Road 18 East
20 Loveland,
CO 80537 21
22 and on behalf of the United States, when mailed, postage prepaid, or delivered
to: 23
24 Town Administrator
25 Town of
Estes Park 26
P.O. Box
1200
27 Estes Park Colorado,
80517. 28
29 The designation of the addressee or the address may be changed by notice given in the
same
30 manner as provided in this Article for
other notices. 31
32 18. CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS
33
34 The expenditure or advance of any money or the performance of any obligation of
the
35 United States under this Contract shall be contingent upon appropriation or allotment of
funds.
36 Absence of appropriation or allotment of funds shall not relieve the Town from any
272
obligations
37 under this Contract. No liability shall accrue to the United States in case funds are not
38 appropriated or
allotted. 39
40 19. OFFICIALS NOT TO BENEFIT
41
42 No Member of or Delegate to the Congress, Resident Commissioner, or official of
the
43 Town shall benefit from this Contract other than as a water user or landowner in the same
44 manner as other water users or
landowners. 45
46 20. CHANGES IN TOWN'S ORGANIZATION
47
273
1 While this Contract is in effect, no change may be made in the Town’s
organization,
2 which may affect the respective rights, obligations, privileges, and duties of either the
United
3 States or the Town under this Contract including, but not limited to, dissolution,
consolidation, or
4 merger, except upon the Contracting Officer’s written
consent. 5
6 21. ASSIGNMENT LIMITED—SUCCESSORS AND ASSIGNS OBLIGATED
7
8 The provisions of this Contract shall apply to and bind the successors and assigns
of the
9 Parties hereto, but no assignment or transfer of this Contract or any right or interest
therein by
10 either party shall be valid until approved in writing by the
other party. 11
12 22. BOOKS, RECORDS, AND REPORTS
13
14 The Town shall establish and maintain accounts and other books and records
pertaining
15 to administration of the terms and conditions of this Contract, including the Town's
financial
16 transactions; water supply data; Project land and rights-of-way use agreements; land-
ownership,
17 land-leasing, and water-use data; and other matters that the Contracting Officer may
require.
18 Reports shall be furnished to the Contracting Officer in such form and on such date or
dates as
19 the Contracting Officer may require. Subject to applicable Federal laws and regulations,
each
20 party to this Contract shall have the right during office hours to examine and make copies
of the
21 other party’s books and records relating to matters covered by this
Contract. 22
23 23. RULES, REGULATIONS, AND DETERMINATIONS
24
25 a. The Parties agree that the delivery of water or the use of Federal facilities
pursuant to
26 this Contract is subject to Federal reclamation law, as amended and supplemented, and
the rules
27 and regulations promulgated by the Secretary of the Interior under Federal
reclamation law. 28
29 b. The Contracting Officer shall have the right to make determinations necessary
to
30 administer this Contract that are consistent with its expressed and implied provisions, the
laws of
31 the United States and the State of Colorado, and the rules and regulations promulgated by
the
274
32 Secretary of the Interior. Such determinations shall be made in consultation with
the Town. 33
34 24. PROTECTION OF WATER AND AIR QUALITY
35
36 a. The United States will care for and operate, maintain, and replace reserved
37 works in a manner that preserves the quality of the water at the highest feasible level as
38 determined by the Contracting Officer. The United States does not warrant the quality of
the
39 water delivered to the Town and is under no obligation to furnish or construct water
treatment
40 facilities to maintain or improve the quality of water delivered to
the Town. 41
42 b. The Town shall comply with all applicable water and air pollution laws and
43 regulations of the United States and the State of Colorado; and shall obtain all required
permits
44 or licenses from the appropriate Federal, State, or local authorities necessary for the
delivery of
45 water by the Town; and shall be responsible for compliance with all Federal, State, and
local
46 water quality standards applicable to surface and subsurface drainage and/or discharges
47 generated through the use of Federal or Town facilities or Project water provided by the
Town
48 within the Town’s Project Water Service Area.
275
1
2 c. This Article shall not affect or alter any legal obligations of the Secretary to
provide
3 drainage or other discharge
services. 4
5 25. EQUAL EMPLOYMENT OPPORTUNITY
6 (Federal Construction)
7
8 During the performance of this Contract, the Town agrees as
follows: 9
10 a. The Town will not discriminate against any employee or applicant for
11 employment because of race, color, religion, sex, sexual orientation, gender identity,
disability,
12 or national origin. The Town will take affirmative action to ensure that applicants are
employed,
13 and that employees are treated during employment, without regard to their race, color,
religion,
14 sex, sexual orientation, gender identity, or national origin. Such action shall include, but
not be
15 limited to the following: employment, upgrading, demotion, or transfer; recruitment or
16 recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and
17 selection for training, including apprenticeship. The Town agrees to post in conspicuous
places,
18 available to employees and applicants for employment, notices to be provided by the
Contracting
19 Officer setting forth the provisions of this
nondiscrimination clause. 20
21 b. The Town will, in all solicitations or advertisements for employees placed
by or
22 on behalf of the Town, state that all qualified applicants will receive consideration for
23 employment without regard to race, color, religion, sex, sexual orientation, gender
identity, or
24 nation
al
origin
.
25
26 c. The Town will send to each labor union or representative of workers with
which it
27 has a collective bargaining agreement or other Contract or understanding, a notice, to be
28 provided by the Contracting Officer, advising the labor union or workers’ representative
of the
29 Town’s commitments under section 202 of Executive Order 11246 of September 24,
1965 (EO
30 11246), and shall post copies of the notice in conspicuous places available to employees
and
31 applicants for
276
employment. 32
33 d. The Town will comply with all provisions of EO 11246, and of the rules,
34 regulations, and relevant orders of the Secretary
of Labor. 35
36 e. The Town will furnish all information and reports required by EO 11246,
and by
37 the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will
permit
38 access to his books, records, and accounts by the Contracting Agency and the Secretary
of Labor
39 for purposes of investigation to ascertain compliance with such rules, regulations,
and orders. 40
41 f. In the event of the Town’s noncompliance with the nondiscrimination
clauses of
42 this Contract or with any of such rules, regulations, or orders, this Contract may be
canceled,
43 terminated or suspended in whole or in part and the Town may be declared ineligible for
further
44 Government Contracts in accordance with procedures authorized in EO 11246, and such
other
45 sanctions may be imposed and remedies invoked as provided in EO 11246 or by rule,
regulation,
46 or order of the Secretary of Labor, or as otherwise
provided by law. 47
277
1 g. The Town will include the provisions of paragraphs (a) through (g) in
every
2 subcontract or purchase order unless exempted by the rules, regulations, or orders of the
3 Secretary of Labor issued pursuant to section 204 of EO 11246, so that such provisions
will be
4 binding upon each subcontractor or vendor. The Town will take such action with respect
to any
5 subcontract or purchase order as may be directed by the Secretary of Labor as a means of
6 enforcing such provisions, including sanctions for noncompliance: Provided, however,
that in
7 the event the Town becomes involved in, or is threatened with, litigation with a
subcontractor or
8 vendor as a result of such direction, the Town may request the United States to enter into
such
9 litigation to protect the interests of the
United States. 10
11 26. COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS
12
13 a. The Town shall comply with Title VI of the Civil Rights Act of 1964 (Pub.
L. 88-
14 352; 42 U.S.C. § 2000d), the Rehabilitation Act of 1973 (Pub. L. 93-112, Title V, as
amended;
15 29 U.S.C. § 791, et seq.), the Age Discrimination Act of 1975 (Pub. L. 94-135, Title III;
16 42 U.S.C. § 6101, et seq.), Title II of the Americans with Disabilities Act of 1990 (Pub.
L. 101-
17 336; 42 U.S.C. § 12131, et seq.), and any other applicable civil rights laws, and with the
18 applicable implementing regulations and any guidelines imposed by the U.S. Department
of the
19 Interior and/or Bureau of
Reclamation. 20
21 b. These statutes prohibit any person in the United States from being excluded
from
22 participation in, being denied the benefits of, or being otherwise subjected to
discrimination
23 under any program or activity receiving financial assistance from the Bureau of
Reclamation on
24 the grounds of race, color, national origin, disability, or age. By executing this Contract,
the
25 Town agrees to immediately take any measures necessary to implement this obligation,
including
26 permitting officials of the United States to inspect premises, programs, and
documents. 27
28 c. The Town makes this agreement in consideration of and for the purpose of
obtaining
29 any and all Federal grants, loans, Contracts, property discounts, or other Federal financial
30 assistance extended after the date hereof to the Town by the Bureau of Reclamation,
including
31 installment payments after such date on account of arrangements for Federal financial
278
assistance
32 which were approved before such date. The Town recognizes and agrees that such
Federal
33 assistance will be extended in reliance on the representations and agreements made in this
Article
34 and that the United States reserves the right to seek judicial
enforcement thereof. 35
36 d. Complaints of discrimination against the Town shall be investigated by the
37 Contracting Officer’s Office of
Civil Rights. 38
39 27. CERTIFICATION OF NONSEGREGATED FACILITIES
40
41 The Town hereby certifies that it does not maintain or provide for its employees
any
42 segregated facilities at any of its establishments and that it does not permit its employees
to
43 perform their services at any location under its control where segregated facilities are
44 maintained. It certifies further that it will not maintain or provide for its employees any
45 segregated facilities at any of its establishments and that it will not permit its employees
to
46 perform their services at any location under its control where segregated facilities are
47 maintained. The Town agrees that a breach of this certification is a violation of the Equal
48 Employment Opportunity clause in this Contract. As used in this certification, the term
279
1 "segregated facilities" means any waiting rooms, work areas, rest rooms and wash rooms,
2 restaurants and other eating areas, time clocks, locker rooms and other storage or dressing
areas,
3 parking lots, drinking fountains, recreation or entertainment areas, transportation, and
housing
4 facilities provided for employees which are segregated by explicit directive or are in fact
5 segregated on the basis of race, creed, color, or national origin, because of habit, local
custom,
6 disability, or otherwise. The Town further agrees that (except where it has obtained
identical
7 certifications from proposed subcontractors for specific time periods) it will obtain
identical
8 certifications from proposed subcontractors prior to the award of subcontracts exceeding
$10,000
9 which are not exempt from the provisions of the Equal Employment Opportunity clause;
that it
10 will retain such certifications in its files; and that it will forward the following notice to
such
11 proposed subcontractors (except where the proposed subcontractors have submitted
identical
12 certifications for specific time periods):
13
14 NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR
15 CERTIFICATIONS OF NONSEGREGATED FACILITIES
16 A Certification of Nonsegregated Facilities must be submitted prior to the award
of a
17 subcontract exceeding $10,000 which is not exempt from the provisions of the Equal
18 Employment Opportunity clause. The certification may be submitted either for each
subcontract
19 or for all subcontracts during a period (i.e., quarterly, semiannually, or annually). Note:
The
20 penalty for making false statements in offers is prescribed in 18
U.S.C. § 1001. 21
22 28. MEDIUM FOR TRANSMITTING PAYMENTS
23
24 a. All payments from the Town to the United States under this Contract shall be
by the
25 medium requested by the United States on or before the date payment is due. The
required
26 method of payment may include checks, wire transfers, or other types of payment
specified by
27 the
United States.
28
29 b. Upon execution of the Contract, the Town shall furnish the Contracting Officer
with
30 the Town’s taxpayer’s identification number (TIN). The purpose for requiring the Town’s
TIN
280
31 is for collecting and reporting any delinquent amounts arising out of the Town’s
relationship
32 with the
United States. 33
34 29. CONTRACT DRAFTING CONSIDERATIONS
35
36 This Contract has been negotiated and reviewed by the Parties hereto, each of
whom is
37 sophisticated in the matters to which this Contract pertains. Articles 1 through 11 of this
38 Contract have been drafted, negotiated, and reviewed by the Parties, and no one party
shall be
39 considered to have drafted the stated
Articles. 40
41 30. CONSTRAINTS ON THE AVAILABILITY OF WATER
42
43 a. In its operation of the Project, the Contracting Officer will use all reasonable
means
44 to guard against a condition of shortage in the quantity of water to be made available to
the Town
45 pursuant to this Contract. In the event the Contracting Officer determines that a condition
of
46 shortage appears probable, the Contracting Officer will notify the Town of said
determination as
47 soon as
practicabl
e.
48
281
1 b. If there is a condition of shortage because of inaccurate runoff forecasting or
other
2 similar operational errors affecting the Project; drought and other physical or natural
causes
3 beyond the control of the Contracting Officer; or actions taken by the Contracting Officer
to
4 meet current and future legal obligations, then no liability shall accrue against the United
States
5 or any of its officers, agents, or employees for any damage, direct or indirect, arising
therefrom. 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31 IN WITNESS WHEREOF, the Parties hereto have executed this Contract the day
and
32 year first
above written. 33
34 THE UNITED STATES OF AMERICA
35
36
37 By
38 Michael S. Black
39 Regional Director
282
40 TOWN OF ESTES PARK
41 ACTING BY AND THROUGH ITS WATER
ENTERPRISE 42
43 By
283
1 Todd Jirsa
2 M
ay
or
3
4
5
6 ATTEST:
7
8
9
10 By 11
12 Title: 13
284
1 Exhibit A
2 Project Area Map
3
285
138
286
TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Jirsa
Board of Trustees
From: Town Administrator Machalek
Date: October 8, 2019
RE: Resolution 34-19 Supporting Larimer County Sales Tax Ballot Issue 1A
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Town Board consideration of a resolution of support for Larimer County’s sales tax
ballot issue for transportation and facility needs.
Present Situation:
The Board of County Commissioners have placed a countywide 0.5% sales tax on the
ballot for the November 5, 2019 election. This sales tax would be used to address
regional transportation and public facility needs.
Proposal:
Commissioner Kefalas and Manager Hoffman briefed the Board on this sales tax ballot
issue at the August 27th Town Board meeting. At that time, the Board requested that
staff bring back a resolution of support for the measure. Staff has drafted Resolution 34-
19 for the Board’s consideration.
Advantages:
N/A
Disadvantages:
N/A
Action Recommended:
This is a policy decision by the Town Board. Staff has no recommendation.
Finance/Resource Impact:
N/A
Level of Public Interest
Moderate.
139
287
Sample Motion:
I move for the approval/denial of Resolution 34-19.
Attachments:
Resolution 34-19
County Resolution for Transportation and Facility Sales Tax
140
288
RESOLUTION 34-19
A RESOLUTION IN SUPPORT OF THE LARIMER COUNTY NOVEMBER 5, 2019
BALLOT ISSUE 1A FOR REGIONAL TRANSPORTATION AND PUBLIC FACILITY
NEEDS
WHEREAS, the total population of Larimer County is projected to grow from
approximately 354,000 currently to over 508,000 by 2045 according to the state
demographer; and
WHEREAS, this growth will place additional burdens on transportation systems
within Estes Park, throughout the County, and on buildings and facilities which are
necessary to provide public services to the residents of the County; and
WHEREAS, traffic congestion has been identified by Larimer County residents and
businesses as one of the most pressing concerns to address within the County; and
WHEREAS, the Town of Estes Park believes that improvements to Estes Park and
other regional transportation infrastructure provide both direct and indirect benefits to the
residents of Estes Park; and
WHEREAS, the County serves the needs of the entire Larimer County community,
including residents of Estes Park, by providing human and economic health services,
public safety functions and assistance to veterans; and
WHEREAS, the County’s existing public buildings and facilities are inadequate to
serve the growing needs for these services.
NOW THEREFORE BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF ESTES PARK, COLORADO:
that the Town of Estes Park supports the Larimer County November 5, 2019 Ballot
Issue 1A for Regional Transportation and Public Facility Needs.
DATED this ____ day of ___________________________ 2019.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
141
289
RESOLUTION NO.
A RESOLUTION DESCRIBING A PROPOSAL FOR THE IMPOSITION OF A 0.5%
COUNTY-WIDE SALES AND USE TAX FOR THE PURPOSES OF ADDRESSING
REGIONAL TRANSPORTATION AND PUBLIC FACILITY NEEDS, REFERRING A
BALLOT ISSUE TO THE 2019 NOVEMBER ELECTION BALLOT FOR THE
APPROVAL OF SUCH PROPOSAL, AND CALLING AN ELECTION.
I. RECITALS
WHEREAS:
A. General
1. The total population of Larimer County is projected to grow from approximately
354,000 currently to over 508,000 (an increase of 44%) by 2045 according to the state
demographer.
2. This growth will place additional burdens on transportation systems throughout
the County and on buildings and facilities which are necessary to provide public services.
B. Transportation
1. Traffic congestion has been identified by Larimer County residents and
businesses as one of the most pressing concerns needing to be addressed within the County.
2. Without improvements to our regional transportation network, the hours of traffic
delay on six major transportation corridors in Larimer County is projected to increase by 673%
by 2045 compared to delays experienced in 2015.
3. Transportation and mobility options influence nearly every aspect of the quality
of life for Larimer County residents and visitors.
4. The County recognizes the importance of broad community input from municipal
partners, transportation experts and community members in developing and updating our
regional transportation plans to improve our road, street, transit and multi-modal transportation
infrastructure that will help prepare our County for the future.
5. Pursuant to §43-1-1101, Colorado Revised Statutes, “local government
involvement in transportation planning is critical to the overall statewide transportation planning
process.”
6. Pursuant to §43-2-101 et seq., Colorado Revised Statutes, the State of Colorado
and local governments are encouraged and authorized to cooperate and contract with one another
290
for the construction and maintenance of State, County, and City highway systems, including the
expenditure of funds designated for road purposes in a regional manner when the interests of the
people will be subserved thereby.
7. Pursuant to §29-2-103.5, Colorado Revised Statutes, Larimer County is
authorized to levy a county sales and use tax for mass transportation purposes.
C. Public Service Buildings/Facilities
1. The County serves the needs of the entire Larimer County community including
residents of Fort Collins, Loveland, Wellington, Windsor, Berthoud, Estes Park, Timnath,
Johnstown as well as unincorporated Larimer County by providing human and economic health
services, public safety functions and assistance to veterans.
2. Alternative Sentencing and Community Corrections services are provided by the
County to protect public safety, improve outcomes for offenders and manage jail incarceration
demands and costs by diverting offenders away from incarceration where appropriate.
3. Veterans Services provided by the County assist veterans from all branches of
military service in accessing benefits and supports they have earned through their service to our
country
4. The County’s Human and Economic Health services are critical to meeting the
needs of our residents by providing family supports such as food assistance, child protection,
public health services, adult protection and economic and workforce development.
5. Justice Center needs have grown for courtrooms, judges and support staff and
functions for State Judicial District Eight and Larimer County, including specialty courts
established to address community needs for offenders experiencing mental health challenges,
substance use disorders or charged with DUI charges.
6. Existing public buildings and facilities are inadequate to serve the growing needs
for these services.
D. Sales and Use Tax
1. Section 29-2-103, Colorado Revised Statutes, authorizes Larimer County to levy a
countywide sales and use tax if approved by a majority of registered electors voting thereon, and
upon approval such tax shall be effective throughout the incorporated and unincorporated portions
of Larimer County.
2. It is in the best interests and welfare of Larimer County Citizens that they have the
option of voting on the imposition of a sales and use tax at the rate of one-half of one percent
(0.5%) for a period of 20 years to and including December 31, 2039, with the revenues from such
tax to be generated and used in accordance with this Resolution.
291
3. Article 2 of Title 29, Colorado Revised Statutes, as amended, authorizes referral of
a county-wide sales and use tax to the registered electors of a county either by resolution adopted
by the Board of County Commissioners of such county or by petition initiated and signed by five
percent of the registered electors of such county.
4. Pursuant to §29-2-104(3), Colorado Revised Statutes, as amended, the Board of
County Commissioners of Larimer County (“County”) in the State of Colorado ("State") desires
to refer to the registered electors of the County a proposal for a county-wide sales and use tax at
the next general election on November 5, 2019, a day which is within the next succeeding 120
days after the adoption of this Resolution.
5. Section 29-2-105, Colorado Revised Statutes, as amended, requires that a proposal
for a county-wide sales and use tax contain certain provisions concerning the amount, levying and
scope of such tax.
6. Article X, Section 20 of the State Constitution requires voter approval of the
proposed county-wide sales and use tax.
II. RESOLUTION
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISIONERS OF LARIMER COUNTY that there shall be referred to the registered
electors of the County at the election to be held on November 5, 2019, the following proposal:
Section 1. THAT a county-wide one-half of one percent (0.5%) sales tax beginning
January 1, 2020 in accordance with the provisions of Article 2, Title 29, Colorado Revised Statutes,
as amended, and ending December 31, 2039, shall be imposed on the sale of tangible personal
property at retail and the furnishing of services in the County, as provided in §29-2-105(1)(d),
Colorado Revised Statutes, as amended, and as is more fully hereinafter set forth.
(a) For the purposes of this sales tax proposal, all retail sales are sourced as specified in §39-
26-104(3), Colorado Revised Statutes, as amended.
(b) The amount subject to tax shall not include the amount of any sales or use tax imposed by
Article 26 of Title 39, Colorado Revised Statues, as amended.
(c) The tangible personal property and services taxable pursuant to this proposal shall be the
same as the tangible personal property and services taxable pursuant to §39-26-104,
Colorado Revised Statutes, as amended, and subject to the same exemptions as those
specified in Part 7, Article 26, Title 39, Colorado Revised Statutes, as amended, and further
subject to the exemptions for:
(1) The exemption for sales of machinery or machine tools specified in §39-26-709
(1), C.R.S.;
292
(2) The exemption for sales of electricity, coal, wood, gas, fuel oil, or coke for
residential use specified in §39-26-715 (1)(a)(II), C.R.S.;
(3) The exemption for sales of food for home consumption specified in §39-26-707
(1)(e), C.R.S.;
(4) The exemption for vending machine sales of food specified in §39-26-714 (2),
C.R.S.;
(5) The exemption for occasional sales by a charitable organization specified in §39-
26-718 (1)(b), C.R.S.;
(6) The exemption for sales of farm equipment and farm equipment under lease or
contract specified in §39-26-716 (2) (b) and (2)(c), C.R.S.;
(7) The exemption for sales of low-emitting motor vehicles, power sources, or parts
used for converting such power sources as specified in §39-26-719(1), C.R.S.;
(8) The exemption for sales of components for production of energy from renewable
energy sources specified in §39-26-724, C.R.S.
(d) All sales of personal property on which a specific ownership tax has been paid or is payable
shall be exempt from the sales tax imposed by the County when such sales meet both of
the following conditions:
(1) The purchaser is a non-resident of or has his principal place of business outside
of the County; and
(2) Such personal property is registered or required to be registered outside the
limits of the County under the laws of the State.
(e) The county-wide sales tax shall not apply to the sale of construction and building materials,
as the term is used in §29-2-109, Colorado Revised Statutes, as amended, if the purchaser
of such materials presents to the retailer a building permit or other documentation
acceptable to the County evidencing that a local use tax has been paid or is required to be
paid.
(f) The county-wide sales tax will not apply to the sale of tangible personal property at retail
or the furnishing of services if the transaction was previously subjected to a sales or use
tax already imposed on the purchaser or user by another statutory or home rule county
equal to or in excess of that sought to be imposed by the County. A credit shall be granted
against the sales tax imposed by the County with respect to such transaction equal in
amount to the lawfully imposed local sales or use tax previously paid by the purchaser or
user to the previous statutory or home rule county. The amount of the credit shall not
exceed the sales tax imposed by the County.
293
(g) The county-wide sales tax will not apply to the sale of food purchased with food stamps.
For purposes of this paragraph, “food” shall have the meaning as provided in 7 U.S.C. §
2012(g) as such section existed on October 1, 1987 or as such section is thereafter
amended.
(h) The county-wide sales tax will not apply to the sale of food purchased with funds provided
by the special supplemental food program for women, infants and children, 42 U.S.C.
§1786. For purposes of this paragraph, "food" shall have the same meaning as provided in
42 U.S.C. §1786 as such section existed on October 1, 1987 or as such section is thereafter
amended.
(i) Any person engaging in the business of selling tangible personal property at retail, or the
furnishing of certain services as herein specified, is required to obtain a license therefore,
which license shall be granted at no cost and issued by a designated official of the County
Financial Administration Division. Such license shall be granted upon application stating
the name and address of the person desiring such license, the name of such business and
location, and such other facts as the said official may reasonably require. In case business
is transacted at two (2) or more separate places by one person, a separate license for each
place of business shall be required. Each license shall be posted in a conspicuous place in
the place of business for which it is issued. No license shall be transferable. Any license
may be revoked for cause as provided in §39-26-103, Colorado Revised Statutes, as
amended, and any amendment thereto enacted before the effective date of this proposal,
which provision is incorporated herein by this reference. No license shall be required for
any person engaged exclusively in the business of selling commodities which are exempt
from taxation under this proposal.
(j) The vendor (retailer) shall not be entitled as collecting agent to withhold a collection fee
unless such a fee, and the amount thereof is established by the Board of County
Commissioners. If such fee is established, it will be administered as specified in Section
39-26-105, C.R.S. No vendor shall be entitled to the collection fee for any month that the
vendor is or remains delinquent.
(k) The sales tax imposed shall be collected, administered and enforced by the Executive
Director of the Department of Revenue in the same manner as the collection, administration
and enforcement of the State sales tax, as provided by Article 26 of Title 39, Colorado
Revised Statutes, as amended.
Section 2. THAT a county-wide one-half of one percent (0.5%) use tax beginning
January 1, 2020 in accordance with the provisions of Article 2, Title 29, Colorado Revised Statutes,
as amended, and ending December 31, 2039, shall be imposed for the privilege of using or
consuming in the County any construction and building materials purchased at retail and for the
privilege of storing, using, or consuming in the County any motor and other vehicles, purchased
at retail on which registration is required. The use tax shall not apply:
(a) to the storage, use, or consumption of any tangible personal property the sale of which is
subject to a retail sales tax imposed by the County;
294
(b) to the storage, use or consumption of any tangible personal property purchased for resale
in the County either in its original form or as an ingredient of a manufactured or
compounded product, in the regular course of a business;
(c) to the storage, use or consumption of tangible personal property brought into the County
by a non-resident thereof for his own storage, use, or consumption while temporarily
within the County; however, this exemption does not apply to the storage, use, or
consumption of tangible personal property brought into this state by a non-resident to be
used in the conduct of a business in this state;
(d) to the storage, use, or consumption of tangible personal property by the United States
government, or the State, or its institutions, or its political subdivisions in their
governmental capacities only or by religious or charitable corporations in the conduct of
their regular religious or charitable functions;
(e) to the storage, use, or consumption of tangible personal property by a person engaged in
the business of manufacturing or compounding for sale, profit, or use any article,
substance, or commodity, which tangible personal property enters into the processing of
or becomes an ingredient or component part of the product or service which is
manufactured, compounded, or furnished and the container, label, or the furnished
shipping case thereof;
(f) to the storage, use, or consumption of any article of tangible personal property the sale or
use of which has already been subjected to a legally imposed sales or use tax of another
statutory or home rule county equal to or in excess of that imposed by the County. A
credit shall be granted against the use tax imposed by the County with respect to a
person's storage, use, or consumption in the County of tangible personal property
purchased in another statutory or home rule county. The amount of the credit shall be
equal to the tax paid by the person by reason of the imposition of a sales or use tax of the
other statutory or home rule county on the purchase or use of the property. The amount
of the credit shall not exceed the tax imposed by this proposal;
(g) to the storage, use, or consumption of tangible personal property and household effects
acquired outside of the County and brought into it by a nonresident acquiring residency;
(h) to the storage or use of a motor vehicle if the owner is or was, at the time of purchase, a
non-resident of the County and he purchased the vehicle outside of the County for use
outside of the County and actually so used it for a substantial and primary purpose for
which it was acquired and he registered, titled, and licensed said motor vehicle outside of
the County;
(i) to the storage, use or consumption of any construction and building materials and motor
and other vehicles on which registration is required if a written contract for the purchase
thereof was entered into prior to the effective date of this use tax;
295
(j) to the storage, use, or consumption of any construction and building materials required or
made necessary in the performance of any construction contract bid, let, or entered into,
any time prior to the effective date of this use tax; or
(k) to the storage of construction and building materials.
Section 3. THAT as provided in §§39-26-208 and 29-2-102, Colorado Revised
Statutes, as amended, the use tax provided-for herein shall be applicable to every motor vehicle
for which registration is required by the laws of the State of Colorado, and no registration shall be
made of any motor or other vehicle for which registration is required, and no certificate of title
shall be issued for such vehicle by the Department of Revenue or its authorized agents until any
tax due upon the use, storage, or consumption thereof pursuant hereto has been paid. The use tax
imposed hereby shall be collected by the authorized agent of the Department of Revenue in this
county. The proceeds of said use tax shall be paid to the County periodically in accordance with
an agreement entered into by and between the County and the Department of Revenue.
Section 4. THAT distribution of all sales and use tax collected by the Director of
Revenue, pursuant to this proposal, shall be to the County, which shall expend such moneys as
described herein.
Section 5. THAT except as provided by §39-26-208 Colorado Revised Statutes, as
amended, any use tax imposed shall be collected, enforced and administered by the County:
(a) Any person required to obtain a building permit within Larimer County and the owner of
the real property shall be jointly and severally responsible for paying the Larimer County
Sales and Use Tax. Prior to the issuance of a building permit, an amount of tax to be held
on deposit shall be estimated by determining the building value for permit purposes and
multiplying that value by a percentage prescribed by the Planning and Building Services
Director. The County through the owner or contractor shall collect this amount. Upon
payment of such sales or use tax deposit, the County shall issue a sales or use tax receipt
identifying the address for which the purchase is being made and the county building
permit number. It shall be the duty of the owner and/or contractor and subcontractors
who are hired to do the stated work or any portion thereof to submit a project cost report
to the Financial Officer, on forms authorized by the Financial Officer, stating the actual
amounts of any purchases of fixtures or any other construction materials and supplies,
tangible personal property and taxable services for such work and to remit any tax due in
excess of the sales or use tax deposit. In any case, the general contractor and/or owner
will be held liable for the payment of all taxes for such taxable materials and services.
(b) The owner and/or contractor shall keep and preserve all invoices, receipts and statements
showing such purchases of construction materials and supplies, tangible personal
property, and taxable services for a period of three (3) years after completion of
construction. The County may, within that three-year period, conduct an audit of such
records of the owner and/or contractor and any other relevant information to verify the
actual cost of the construction materials and supplies, tangible personal property, and
taxable services used therein to determine the actual tax due. If the actual tax due is more
296
than that paid by the taxpayer, the Financial Officer shall serve a notice of determination,
assessment and demand for payment on the taxpayer notifying him or her of the
deficiency which may include penalty and interest.
Section 6. THAT if the majority of the qualified electors voting thereon vote for
approval of the county-wide sales and use tax, such county-wide sales and use tax shall be effective
throughout the incorporated and unincorporated portions of the County beginning January 1, 2020
and ending December 31, 2039.
Section 7. THAT revenues received by the County from the sales and use tax
authorized hereby, net of expenses of the County in collecting, administering and enforcing such
sales and use tax (the “net sales and use tax revenues”), which expenses will be paid from the 35%
distribution as provided in the ballot question, and earnings from the investment of the net sales
and use tax revenues shall be used only for the purposes set forth in this Resolution.
Section 8. THAT for purposes of State Constitution Article X, Section 20, the receipt
and expenditure of the sales and use tax revenues and earnings from the investment of sales and
use tax revenues shall be accounted for, budgeted and appropriated separately from other revenues
and expenditures of the County and outside of the fiscal year spending of the County as calculated
under Article X, Section 20, and nothing in Article X, Section 20 shall limit the receipt and
expenditure in each fiscal year of the full amount of such revenues, nor shall receipt and
expenditure of such revenues affect or limit the receipt or expenditure of any and all other revenues
of the County for any fiscal year.
Section 9. THAT the ballot title and ballot question on the county-wide sales and use
tax proposal that shall be referred to the registered electors of the County at the general election
to be held on Tuesday, November 5, 2019, shall be as follows:
SHALL LARIMER COUNTY TAXES BE INCREASED $39,000,000 DOLLARS
ANNUALLY (ESTIMATED FIRST FISCAL YEAR DOLLAR INCREASE IN 2020), AND
BY WHATEVER ADDITIONAL AMOUNT AS MAY BE RAISED ANNUALLY
THEREAFTER, FOR A PERIOD OF 20 YEARS BY THE IMPOSITION OF A 0.5% (50
CENTS ON 100 DOLLARS) SALES AND USE TAX, WITH ALL REVENUE FROM SUCH
TAX TO BE USED IN ACCORDANCE WITH THE BOARD OF COUNTY
COMMISSIONERS RESOLUTION NO. _____________________ TO SERVE
COMMUNITY MEMBERS IN FORT COLLINS, LOVELAND, WELLINGTON, WINDSOR,
BERTHOUD, ESTES PARK, TIMNATH, JOHNSTOWN AND UNINCORPORATED
AREAS OF LARIMER COUNTY AS FOLLOWS:
- $10,000,000 FOR LOCAL MATCH TO FUND IMPROVEMENTS TO INTERSTATE
HIGHWAY I-25 BETWEEN STATE HIGHWAY 402 AND STATE HIGHWAY 66
ALLOCATED FROM THE FIRST $2,000,000 COLLECTED IN EACH OF THE FIRST FIVE
(5) YEARS OF TAX COLLECTION;
AND WITH THE REMAINING PROCEEDS DISTRIBUTED AS FOLLOWS:
297
- BETWEEN 45% TO 50% TO DESIGN AND CONSTRUCT TRANSPORTATION
CAPACITY EXPANSION PROJECTS ON MAJOR STREETS, HIGHWAYS, AND
ROADWAYS, WHICH MAY INCLUDE, WITHOUT LIMITATION, INTERSECTIONS,
BICYCLE LANES, GRADE SEPARATED CROSSINGS, SIDEWALKS, SIGNALIZATION
AND OTHER IMPROVEMENTS RELATED TO REGIONAL MOBILITY;
-BETWEEN 15% AND 20% TO PLAN, DESIGN, CONSTRUCT, EQUIP, AND OPERATE
PUBLIC TRANSPORTATION DIRECTLY OR BY AGREEMENT; AND
- 35% TO PURCHASE, CONSTRUCT, EQUIP, OPERATE, MAINTAIN, IMPROVE,
REMODEL, REPLACE, AND LEASE EXISTING AND FUTURE LARIMER COUNTY
FACILITIES INCLUDING A CONSOLIDATED CENTER FOR HUMAN AND ECONOMIC
HEALTH SERVICES AND VETERANS SERVICES, EXPANDED ALTERNATIVE
SENTENCING AND COMMUNITY CORRECTIONS FACILITIES, EXPANDED NUMBER
OF COURTROOMS AND ASSOCIATED SUPPORT SPACE FOR THE STATE 8TH JUDICIAL
DISTRICT COURT AND LARIMER COUNTY COURT, AND FOR PUBLIC FACILITIES AS
MORE PARTICULARLY DESCRIBED IN THE LARIMER COUNTY 2018 FACILITIES
MASTER PLAN AS ADOPTED AND AS MAY BE AMENDED FROM TIME TO TIME
AFTER PUBLIC HEARING; AND TO PAY THE COSTS OF COLLECTING,
ADMINISTERING AND ENFORCING THE ENTIRETY OF THIS SALES AND USE TAX;
AND SHALL THE COUNTY BE AUTHORIZED TO COLLECT, RETAIN AND SPEND ALL
PROCEEDS OF SUCH TAX WITHOUT LIMITATION BY ARTICLE X, SECTION 20 OF
THE COLORADO CONSTITUTION, AND FURTHER PROVIDED THAT AN ANNUAL
REPORT SHALL BE PUBLISHED AND PROVIDED TO THE BOARD OF COUNTY
COMMISSIONERS ON THE DESIGNATION OR USE OF THE REVENUES FROM THE
TAX INCREASE IN THE PRECEDING CALENDAR YEAR CONSISTENT WITH ITS
APPROVED PURPOSES?
_________________YES
_________________NO
Section 10. THAT the approval of this Resolution shall be considered Final Action for
setting the ballot title and ballot question and final action for all other purposes under §1-11-203.5
Colorado Revised Statutes.
Section 11. THAT the conduct of the election shall conform, so far as practicable, to the
general election laws of the State. The County hereby adopts the provisions of §1-11-203.5,
Colorado Revised Statutes, as amended, as the exclusive procedure for protesting or contesting the
content of the ballot title set forth above.
Section 12. THAT the cost of the election shall be paid from the general fund of the
County.
Section 13. THAT the County Clerk and Recorder is hereby designated as the County's
“designated election official,” as defined in §1-1-104(8), Colorado Revised Statutes, as amended,
298
as the person responsible for running the election, and is directed and authorized to take such action
as may be necessary to call, hold and canvass the election in accordance with law.
Section 14. THAT pursuant to §29-2-104(5), Colorado Revised Statutes, as amended,
the County Clerk and Recorder shall cause to be published the text of the proposal for a county-
wide sales and use tax four separate times, a week apart, in the official newspaper of the County
and each city and incorporated town within the County.
Section 15. THAT the County Clerk and Recorder shall cause to be published, at least
twenty days before the election and in the form and containing the information required by law,
the notice required by §1-5-205, Colorado Revised Statutes, as amended. Such notice shall also
be posted, at least ten days before the election and until two days after the election, as required by
§1-5-205(l.3), Colorado Revised Statutes, as amended.
Section 16. THAT the County Clerk and Recorder shall cause a notice to all registered
electors of the County to be mailed in accordance with Article X, Section 20(3)(b) of the State
Constitution and other applicable laws. Such notice shall be in the form and contain the
information required by law.
Section 17. THAT a notice of the adoption of this county-wide sales and use tax
proposal by a majority of the registered electors voting thereon shall be submitted by the County
Clerk and Recorder to the Executive Director of the Department of Revenue at least 45 days prior
to the effective date of such tax, together with a certified copy of this Resolution.
Section 18. THAT the County is authorized to adopt such uniform rules and regulations
as may be necessary for the administration and enforcement of the sales and use tax; and the Board
of County Commissioners or their authorized representatives are hereby empowered to enter into
and execute on behalf of the county any agreements necessary for the administration and
enforcement of the sales and use tax. The Board of County Commissioners may change the
procedures of collection of the sales and use tax, vendor fees, and the administration or
enforcement of the sales and use tax, but may not add or eliminate exceptions without further voter
approval, except the Board of County Commissioners may add, eliminate or change exemptions
without further voter approval to reflect changes in the exemptions as set forth in state law.
Section 19. THAT the officers and employees of Larimer County and the Larimer County
Clerk and Recorder are authorized to take all action necessary to carry out this Resolution pursuant
to Colorado law.
Section 20. THAT if any provision of this proposal or the application thereof to any
person or circumstances is held invalid, such invalidity shall not affect the provisions or
applications of this proposal regarding the sales and use tax which can be given affect without the
invalid provision or application and to this end, the provisions of this proposal are declared to be
severable.
299
ADOPTED this day of , 2019.
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF LARIMER
Chair
ATTEST:
By:
Deputy Clerk of the Board
APPROVED AS TO FORM:
Date: ____________________
______________ ___________
Deputy County Attorney
300
PROCEDURE FOR PUBLIC HEARING
Applicable items include: Rate Hearings, Code Adoption, Budget Adoption
1.MAYOR.
The next order of business will be the public hearing on ACTION ITEM 3.
ORDINANCE 26-19 APPROVING THE GROUND LEASE AGREEMENT WITH
ESTES PARK R-3 SCHOOL DISTRICT FOR THE CAREER AND TECHNICAL
EDUCATION (CTE) BUILDING.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, public comment,
and written comments received on the application.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2.STAFF REPORT.
Review the staff report.
3. PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
Ordinance. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
4. MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the Ordinance which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the
Ordinance.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
301
7. SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8. DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9. VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
302
TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Jirsa
Board of Trustees
From: Town Administrator Machalek
Date: October 8, 2019
RE: Ordinance 26-19 Approving the Ground Lease Agreement with Estes Park
R-3 School District for the Career and Technical Education (CTE) Building
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Town Board consideration of a ground lease agreement with the Estes Park R-3 School
District for constructing a Career and Technical Education (CTE) building on Town-
owned property adjoining the High School.
Present Situation:
The existing use of the site is an asphalt parking lot.
Proposal:
The School District is proposing the construction of a 6,480 square foot CTE building
with an attached 1,509 square foot greenhouse on Town-owned land. Per State Statute
(CRS 31-15-713), all leases of municipal property for more than one year must be in the
public interest and approved by ordinance. The construction and siting of this facility
was discussed during the Stanley Park Master Plan development process, and was
included in the final plan.
Advantages:
Increased capacity for career and technical education for local students.
Location close to existing School District facilities.
Aligned with 2019 Stanley Park Master Plan.
Disadvantages:
Long-term lease of the land to the School District necessarily precludes other
uses of the property. However, this facility is specifically addressed in the Stanley
Park Master Plan and its construction is in alignment with the Plan.
Action Recommended:
Staff recommends approval of the Ordinance.
143
303
Finance/Resource Impact:
N/A
Level of Public Interest
Moderate. There is general interest in the development of Stanley Park.
Sample Motion:
I move for the approval/denial of Ordinance 26-19.
Attachments:
Ordinance 26-19
Ground Lease Agreement
Site Plan Documents
144
304
ORDINANCE NO. 26-19
AN ORDINANCE AUTHORIZING THE TOWN OF ESTES PARK
TO LEASE A PORTION OF THE REAL PROPERTY KNOWN AS
LOT 1 OF THE STANLEY PARK ADDITION (THE PREMISES)
TO ESTES PARK SCHOOL DISTRICT R-3 (TENANT)
WHEREAS, Colorado Revised Statutes, § 31-15-713, requires that all leases of
municipal property for more than one year be in the public interest and approved by
ordinance; and
WHEREAS, the Tenant described above desires to lease the Premises described
above, from the Town, for a career technical education facility; and
WHEREAS, the Town Board finds that leasing the Premises for the stated
purposes is in the public interest.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO AS FOLLOWS:
Section 1: The Town Board authorizes the Mayor to sign a lease in a form
substantially as that now before the Board, for the Premises, to the Tenant.
Section 2: This Ordinance shall take effect and be enforced thirty (30) days after
its adoption and publication.
PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park,
Colorado this ____ day of _______________, 2019.
TOWN OF ESTES PARK, COLORADO
By:
Mayor
ATTEST:
Town Clerk
I hereby certify that the above Ordinance was introduced at a regular meeting of the
Board of Trustees on the day of , 2019 and published in a
newspaper of general circulation in the Town of Estes Park, Colorado, on the day
of , 2019, all as required by the Statutes of the State of Colorado.
Town Clerk
145
305
GROUND LEASE
THIS GROUND LEASE, effective as of _____________________, 2019 (this “Lease”),
is made and entered into by and between TOWN OF ESTES PARK, as lessor, a statutory town
of the State of Colorado (the “Town”), and ESTES PARK SCHOOL DISTRICT R-3, as lessee,
a public school district and political subdivision of the State of Colorado (the “District”).
WHEREAS, to assist in staff retention and recruiting, the District has identified a need for
a separate facility for its career technical education (“CTE”) classes near its secondary facility;
and
WHEREAS, the District’s mission is to create a long-term CTE program that serves
students who will live and/or work in the Town after graduation; and
WHEREAS, the Town owns certain real property located in Larimer County, State of
Colorado as more particularly described in Exhibit A, which is attached hereto and incorporated
herein by this reference (the “Property”) that may be used as the site for a career technical facility
and related purposes to meet the needs of District staff, students and the community; and
WHEREAS, the District desires to lease a portion of the Property as more particularly
described in Exhibit B, which is attached hereto and incorporated herein by this reference (the
“Site”), from the Town and to construct or cause to be constructed upon the Site certain CTE
educational facilities and other related site improvements (collectively, the “Improvements”),
which the District desires to operate as a CTE educational facility.
WHEREAS, the Town is willing to lease the Site to the District for such purposes pursuant
to the terms and conditions provided herein.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
Section 1. Definitions. Unless the context otherwise requires, capitalized terms used
herein shall have the meanings ascribed to them herein and in the Recitals.
Section 2. Lease and Term.
2.1 The Town hereby leases to the District and the District hereby leases from
the Town, on the terms and conditions hereinafter set forth, the Site. The term of this Lease shall
commence on the date hereof and shall end on ________________, 2044 (the “Initial Term”),
unless such term is sooner terminated as hereinafter provided. The District shall have the right to
extend the Initial Term for an additional twenty-five-year term (“Second Term”) on the same terms
and conditions as the Initial Term by giving written notice of its desire to extend to the Town on
or before one hundred eighty (180) days prior to the expiration of the Initial Term. Otherwise, the
Lease will terminate upon expiration of the Initial Term.
2.2 So long as the District is not in default of the Lease and upon mutual
agreement of the parties, the District may request to extend the Lease for an additional twenty-
146
306
five-year term (“Third Term”) by giving written notice of its desire to extend to the Town on or
before one hundred eighty (180) days prior to the expiration of the Second Term. If extended,
other than the length of the term or as otherwise agreed by the parties, the Lease for the Third Term
shall be on the same terms and conditions as the Second Term. If the Town does not agree to such
extension, which determination shall be in its sole discretion, then the Lease will terminate upon
expiration of the Second Term. The Initial Term, Second Term and Third Term, if applicable, are
referred to herein collectively as “Term”.
Section 3. Rental. During the Initial Term of this Lease or any extension thereof, there
shall be due, and the Town acknowledges receipt from the District as and for rental hereunder, the
total sum of $1.00, paid in advance, and other good and valuable consideration.
Section 4. Purpose. The District shall use the Site solely for the purpose of constructing
the Improvements on the Site and operating the Improvements as a CTE program facility, and for
such other purposes as may be incidental thereto.
Section 5. Owner in Fee. The Town covenants that it is the owner in fee of the Site, subject
only to the permitted encumbrances set forth in Exhibit C, which is attached hereto and
incorporated herein by this reference (the “Permitted Encumbrances”), including the exercise of
rights by the owners and lessees of any mineral rights associated with the Site.
Section 6. Improvements, Site Work. The District will make the Improvements to the
Site without the written approval of the Town. The District shall be required to obtain and pay
for all licenses, permits and approvals required by any applicable federal, state or local authority
in connection with the construction of the Improvements on the Site and the Town agrees to
cooperate with the District and provide the necessary documents to assist the District in obtaining
such licenses, permits and approvals.
Section 7. Construction of Improvements. The District shall begin construction of the
Improvements within one (1) year of the effective date of this Lease. The District shall diligently
pursue the construction and completion of the Improvements. In the event that the construction of
the Improvements has not commenced within one (1) year, the Town shall have the option, in its
sole discretion, to terminate this Lease upon thirty (30) days written notice to District; provided,
however, that the District shall have a reasonable opportunity to cure such failure by commencing
construction within six (6) months thereafter.
Section 8. Use of Improvements. The Improvements on the Site shall be used for CTE
educational facilities by the District. No other uses of the Site shall occur unless prior written
approval is obtained from the Town.
Section 9. Assignments and Subleases. The District may not assign its rights under this
Lease or sublet the Site without the prior written consent of the Town, which consent shall not be
unreasonably withheld, conditioned or delayed. The Town and the District agree that, except for
Permitted Encumbrances, neither the Town nor the District will sell or encumber the Site or any
portion thereof, or any interest therein, during the term of this Lease.
Section 10. Use, Compliance with Laws, Waste. The District shall use the Site only in a
careful, safe and proper manner and shall not use the Site in any manner or for any purpose
147
307
prohibited by any applicable federal, state, county or municipal laws, ordinances, resolutions, rules
or regulations, including applicable environmental laws. The Town shall maintain the real
property adjacent to the Site, including without limitation, the natural vegetation and ground
surfaces, as well as any improvements serving the real property adjacent to the Site, including
without limitation improvements, utilities, and easements.
Section 11. Utilities. During the Term, the District shall pay all water and sewer charges,
charges for public utilities, or other applicable charges assessed by any public authority (“Utility
Charges”) used on the Site as and when they become due.
Section 12. Right of Entry. The Town reserves the right for any of its duly authorized
representatives to enter upon the Site at any reasonable time, upon reasonable prior written notice
to the District, to inspect the same or, following thirty (30) days prior written notice to the District,
to make any repairs, improvements or changes necessary for the preservation thereof.
Section 13. Default. In the event the District shall be in default in the performance of any
obligation on its part to be performed under the Term of this Lease, which default continues for
thirty (30) days following written notice and demand for correction thereof to the District, unless
the District has in good faith commenced remedy of such default, the Town may terminate this
Lease or exercise any and all remedies granted to it by law.
Section 14. Termination. If the Improvements at any time during the Term of this Lease
shall become untenantable on account of damage by fire, flood, destruction, or Act of God, then
the District in its sole discretion may terminate this Lease. The parties agree that during the Third
Term, the District may terminate this Lease upon 365 days’ prior written notice delivered in
accordance with Section 24.
Section 15. Effect of Termination. The District agrees, upon the expiration or termination
of this Lease, to quit and surrender the Site in the same good order and condition as the same were
in at the time of commencement of the term hereunder and, as to the Improvements, in the same
good order and condition as the same were in upon construction thereof, reasonable wear and tear
excepted, and agrees that the Improvements existing upon the Site at the time of the termination
of this Lease shall remain thereon and title thereto shall vest in the Town. The District shall
execute and deliver, upon request by the Town, any instrument of transfer, conveyance, or release
necessary or appropriate to confirm the vesting of such right, title and interest in the Town.
Section 16. Quiet Enjoyment. The District at all times during the term of this Lease shall
peaceably and quietly have, hold and enjoy the Site.
Section 17. Insurance. During the Term of this Lease, the District shall maintain
(i) comprehensive general public liability insurance against claims for personal injury, death or
damage to property of others occurring on or in the Site in an amount not less than $1,000,000 per
incident and $3,000,000 in the aggregate and (ii) property insurance in an amount not less than the
full replacement value of the Improvements. All such insurance shall name Town as an additional
insured. The Town and the District shall waive any rights of subrogation with respect to the Town,
the District, any sublessee or assignee, and their elected officials, officers, agents and employees,
while acting within the scope of their employment.
148
308
Section 18. Damage, Destruction or Condemnation. If the whole or part of the Site is
damaged, destroyed, or condemned for a public or quasi-public use or purpose, then the Town
shall be entitled to damages and compensation attributable to the Site, and the District shall be
entitled to damages and compensation attributable to the Improvements, subject to the terms and
conditions of any assignment or sublease.
Section 19. Liens. The District shall keep fee simple title to the Site free and clear of all
liens, including mechanics’ liens, encumbrances and security interests, and, in particular, shall pay
fully for all materials joined or affixed to Site and all labor performed by persons on the Site at the
request or demand of the Town or for the benefit or account of the District.
Section 20. Indemnity Provisions. To the extent permitted by applicable law and without
waiving any rights or defenses under the Colorado Constitution, Article 11, Section 1 and the
Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., the District shall hold
harmless, protect and indemnify the Town, from and against any and all losses, damages, claims,
suits, or actions, judgments and costs that may arise based on events occurring during the Term
hereof for personal injury, loss of life or damaged property sustained in or about the Site; and from
and against all costs, reasonable attorney fees, expenses and liabilities incurred in any such claims,
or the defense of any action or proceeding brought thereon; and from and against any judgments,
orders, decrees or liens resulting therefrom and any fines levied by any authority for violation of
any law, regulation or ordinance by virtue of the use of the Improvements and appurtenances
thereto situated upon the Site. This indemnity shall survive the termination or expiration of this
Lease and shall include any loss for the filing of mechanics' and/or materialmen's liens.
Section 21. Non-Appropriation. Each party hereto agrees that the Town has not
appropriated any funds for the Improvements or for any project(s) on the Site and the Town is not
responsible to pay for any development on the Site. The obligations of the District under this
Lease shall not constitute a multiple-fiscal year direct or indirect debt or other financial obligation
or any obligation payable in any fiscal year. No provision of this Lease shall be construed to
pledge credit or to create a lien on any class or source of the District’s monies. Notwithstanding
anything to the contrary contained herein, the District’s obligations hereunder are subject to annual
budgeting and appropriation in accordance with law. In the event the District does not appropriate
funds by June 30 of any fiscal year (July 1 through June 30), then this Lease shall terminate on
June 30 of that year; provided, however, that the District shall give the Town at least sixty (60)
days written notice prior to any termination.
Section 22. Partial Invalidity. If any one or more of the terms, provisions, covenants or
conditions of this Lease shall to any extent be declared invalid, unenforceable, void or voidable
for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of
which becomes final, none of the remaining terms, provisions, covenants and conditions of this
Lease shall be affected thereby, and each provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
Section 23. Severability. If any sentence, paragraph, or section of this Lease is held to be
illegal or invalid, this shall not affect in any manner those other portions of the Lease not illegal
or invalid and this Lease shall continue in full force and effect as to those provisions.
149
309
Section 24. Notices. All notices, statements, demands, consents, approvals, authorizations,
offers, designations, requests or other communications hereunder by either party to the other shall
be in writing and shall be sufficiently given and served upon the other party if delivered personally
or if mailed shall be made by United States registered mail, return receipt requested, postage
prepaid, at the addresses set forth for the parties below, or to such other addresses as the respective
parties may from time to time designate in writing:
If to the Town:
Town of Estes Park
Attn: Town Administrator
170 MacGregor Avenue
P.O. Box 1200
Estes Park, Colorado 80517
If to the District:
Estes Park School District R-3
Attn: Superintendent
1605 Brodie Avenue
Estes Park, Colorado 80517
Section 25. Section Headings. All section headings contained herein are for convenience
of reference only and are not intended to define or limit the scope of any provision of this Lease.
Section 26. Execution in Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute but one and the same Lease.
Section 27. Entire Understanding. This Lease contains not only the entire understanding
of the parties, but there are no representations, warranties, covenants, or undertakings other than
those expressly set forth herein. The parties shall not assert that there are any other agreements,
oral or written, existing between them. No oral statement or prior writing outside of this Lease
shall have any force or effect.
Section 28. Ownership of Improvements. The District shall, at all times during the Term
hereof, hold title to the Improvements constructed by the District on the Site.
Section 29. Section 28. Fee Simple Owner. The Town represents that it is the owner in fee
simple of the Site and has a good and lawful right to grant the leasehold herein granted, that the
leasehold is free and clear of any unstated liens, encumbrances or imperfections, and warrants and
will defend the title thereto against lawful claims of all persons whomsoever.
Section 30. Section 29. No Third Parties Benefitted. The terms and provisions of this
Lease are for the sole benefit of the Town and the District and no third party is intended to benefit
herefrom.
150
310
Section 31. Section 30. Time of the Essence. Time is of the essence hereof.
Section 32. Section 31. Further Assurances. Each party hereto agrees to execute and
deliver any additional documents and to do all such other acts as may be necessary to carry out
this Lease and each party’s rights and interest in this Lease.
Section 33. Section 32. Recording. This Lease shall be recorded in the real property
records of Larimer County, Colorado.
IN WITNESS WHEREOF, the Town and the District have caused this Ground Lease to be
executed by their respective officers thereunto duly authorized and have affixed their corporate
seals hereto all as of the day and year first above written.
[SEAL] TOWN OF ESTES PARK
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
ESTES PARK SCHOOL DISTRICT R-3
By:
Board of Education President
ATTEST:
By: ______________________________________
Board of Education Secretary
151
311
STATE OF )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2019, by ________________________, as ______________ of Town of Estes
Park.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2019, by ____________________ and ____________________ as President
and Secretary of the Board of Education of the Estes Park School District R-3.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
152
312
EXHIBIT A
A tract of land lying in the Northeast Quarter of the Southeast Quarter of Section Thirty (30),
Township Five (5) North, Range Seventy-two (720) West of the Sixth Principal Meridian
described as follows:
Beginning at Point No. 1, said point being the East quarter-section corner of the said Section
Thirty (30); thence with the East line of the said section South 572 feet to Point No. 2; thence
North 89 (degrees) 11’ West, 1295 feet to Point No. 3; thence North 572 feet to Point No. 4;
said point being the Northwest corner of the Northeast Quarter (NE1/4) of the Southeast
Quarter (SE ¼) of the said section; thence South 89 (degrees) 11’ East, 1295 feet to the point
of beginning.
153
313
EXHIBIT B
A portion of property located on Lot 1, Stanley Park Addition as shown on the final plat
recorded in the records of the Larimer County Clerk and Recorder in Book 1690 at Page 145
dated 03/16/1976 located in the North East 1/4 of the Southeast 1/4, Section 30, Township 5
North, Range 72 West of the 6th P.M., Town of Estes Park, County of Larimer, State of
Colorado, being more particularly described as follows:
COMMENCING at the Northeast corner of said Lot 1, said point being the East 1/4 corner of
said Section 30, T5N, R72W, whence the Center 1/4 corner of said Section 30 bears North
89°11' West with all bearings relative thereto;
Thence along the easterly property line of said Lot 1, South 00°24’ WeEast a distance of 572.0
feet to the Southeast corner of said Lot 1, said point being on the northerly Right-of-Way of
Manford Avenue;
Thence along said northerly right-of-way, North 89°11’00” West a distance of 104.19 feet,
said point being the TRUE POINT OF BEGINNING;
Thence leaving said northerly right-of-way, North 01°27’09” West a distance of 82.85 feet;
Thence North 89°15’55” West a distance of 206.13 feet;
Thence South 02°49’25” West a distance of 82.54 feet to a point on the northerly right-of-way
of Manford Avenue;
Thence along said northerly right-of-way South 89°11’00” East a distance of 212.30 feet to
the TRUE POINT OF BEGINNING;
except any portion thereof lying within Estes Park Schools Subdivision recorded December
14, 2016 at Reception No. 2016008646.
154
314
EXHIBIT C
PERMITTED ENCUMBRANCES
1. All taxes and assessments, now or heretofore assessed, due or payable.
2. Rights of others in and to Manford Avenue, as it currently exists.
END OF EXCEPTIONS
4810-9957-6232, v. 1
155
315
XXX X7505XXX X750575057505BASKETBALLCOURTTENNISCOURTSPICNICSHELTERPICNICSHELTERTENNISCOURTSPARKINGSTANLEYPARKHIGHSCHOOLMANFORD AVENUEPROPOSEDCTE BUILDINGBIKE PARKLAKEESTESMIDDLESCHOOLELEMENTARYSCHOOLBASEBALLFIELDSEXISTINGBIKE TRAILESTES PARK SCHOOLDISTRICT R-3CTE BUILDINGGREENHOUSEVICINITY MAPFILE: G:\DATE: 9/23/2018BY: KMEJOB No: 239.014SCALE 1" = 200'0 1002001692 BIG THOMPSON AVE, SUITE 200, ESTES PARK, CO 80517PH: (970) 586-2458 FAX: (970) 586-2459BIKE PARK156316
54'
10'
19'
GREENHOUSE
(BY OTHERS)
2
12
22'-6"
12'
12'
10'
8'8'
15'-8"
4
12
42" WAINSCOT
GREENHOUSE
(BY OTHERS)
120'
67'
19'
42" WAINSCOT
54'
10'
19'
GREENHOUSE
(BY OTHERS)
2
12
23'
4
12
42" WAINSCOT
120'
10'
19'
42" WAINSCOT
CTE BUILDING
ESTES PARK SCHOOL
ESTES PARK
ELEVATIONS
KMEDRAWN BY:
FILE:
DATE:
JOB No: 239.014
M:\CES_Jobs\239_Estes Park School District R-3\239_014 CTE Building\EPHS CTE Building_v3-07-24-19.dwg
9/17/19 1692 BIG THOMPSON AVE, SUITE 200, ESTES PARK, CO 80517
PH: (970) 586-2458 FAX: (970) 586-2459
EAST ELEVATION
SCALE 3/32"=1'
SOUTH ELEVATION
SCALE 3/32"=1'
WEST ELEVATION
SCALE 3/32"=1'
NORTH ELEVATION
SCALE 3/32"=1'
157
317
12' GARAGE DOOROFFICE AREA12' x 15.5'CLASS ROOM - 19 SEATS30X19GREEN HOUSE 22'-6" x 67'-1"AREA: 1,509 SQ FTSTORAGE AREA13' x 20-1"'MOBILEWELDINGCARTAUTO AREA 30' x 24'WELDING AREA 34' x 24.5'WOOD SHOP AREA 34' x 24.5'67'-1"22'-6"120'54'30'19'15'19'-1112"16'-2"34'24'-6"30'24'4'-1716"4'10' GARAGE DOORFIRERISER5'6'-4"STORAGE AREASTORAGEAREASTORAGE AREA12'-3"15'-312"MATERIALPRODUCTTRADENAMEMODELNUMBER MATERIALPRODUCTTRADENAMEMODELNUMBER
MATERIALPRODUCTTRADENAMEMODELNUMBER MATERIALPRODUCTTRADENAMEMODELNUMBER CUSTODIAL11'-7"5'-10"WALK-INFREEZER
HANDWASHUTILITY SINK6'46'-11"3'CTE BUILDING 54'x120'AREA: 6,480 SQ FT8'-5"2'21'1C'C
B'B
A'A
3'3GREENHOUSE WORK AREAUP 25'-8"13'13'-10"17'10'-2"3'-6"28'7'(2) 5030 FIXED WINDOW(2) 5030 FIXED WINDOW4'14'-10"6'13'-8"15'-6"6"6"5'-2"2'-11"34'16'-1"17'40'FRAME LOCATIONS3" FLOORMARKINGACCESSIBLE ROUTE3" FLOORMARKING3" FLOORMARKING5020 AWNING WINDOW5020 AWNING WINDOW5020 AWNING WINDOW8'-6"11'-6"10'TABLE SAWHOSE BIBHOSE BIBHOSE BIBHAND WASHSINKSLOTTED STEELTABLE3'x6'OPEN INDUSTRIAL SHELVINGTGTGTG
7'7'EXISTING SCHOOL CNCMACHINECNC PCDESIGNATED 8' x 10'FLOOR WORK SPACETABLE WITHSTORAGELOCKING TOOLSTORAGETABLE WITHSTORAGETABLE WITHSTORAGE3'DRILLPRESSWELDINGBOOTH5'x5'PLASMACUTTER5'x5'METAL WORK TABLEWITH STORAGE4'x8'METAL WORK TABLEWITH STORAGE4'x8'BENCHGRINDER220V UNDERGROUND TOPEDESTAL FOR COMPOSTERS220V SINGLEPHASE220V400 GALAQUA TANKSLOTTED STEELTABLE3'x6'AIRCOMPRESSORWELDING SAFETYEQUIPMENT STORAGETOOL STORAGEDESKDESKGAS STORAGE OUTSIDE9'ACCESSIBLE ROUTE
HIGH/LOW DRINKINGFOUNTAIN11'-6"EYEWASH/SHOWERCOMBINATIONEYEWASH/SHOWERCOMBINATION4'4'4'3'-2"5'-4"6'-612"VESTIBULE58" TYPE X DRYWALL FORSMOKE RESISTANCEPER 509.4.2 (SEE NOTE 1)WELDINGBOOTH5'x5'WELDINGBOOTH5'x5'WELDINGBOOTH5'x5'WELDINGBOOTH5'x5'MOP SINKPLANTER BEDSSCALE 3/32" = 1'CTE BUILDINGESTES PARK SCHOOLESTES PARKKMEDRAWN BY:FILE:DATE:JOB No: 239.014M:\CES_Jobs\239_Estes Park School District R-3\239_014 CTE Building\EPHS CTE Building_v3-07-24-19.dwg9/17/191692 BIG THOMPSON AVE, SUITE 200, ESTES PARK, CO 80517PH: (970) 586-2458 FAX: (970) 586-2459158318
PROCEDURE FOR PUBLIC HEARING
Applicable items include: Rate Hearings, Code Adoption, Budget Adoption
1. MAYOR.
The next order of business will be the public hearing on ACTION ITEM 4.
ORDINANCE 28-19 APPROVING THE GROUND LEASE AGREEMENT AND
RESOLUTION 35-19 APPROVING THE CONCESSION AGREEMENT WITH
DNC PARKS & RESORTS AT ROCKY MOUNTAIN PARK INN, INC. FOR THE
ESTES PARK CONFERENCE CENTER.
At this hearing, the Board of Trustees shall consider the information
presented during the public hearing, from the Town staff, public comment,
and written comments received on the application.
Any member of the Board may ask questions at any stage of the public
hearing which may be responded to at that time.
Mayor declares the Public Hearing open.
2. STAFF REPORT.
Review the staff report.
3. PUBLIC COMMENT.
Any person will be given an opportunity to address the Board concerning the
Ordinance. All individuals must state their name and address for the record.
Comments from the public are requested to be limited to three minutes per
person.
4. MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the Ordinance which are not in the Board packet.
Ask the Board of Trustees if there are any further questions concerning the
Ordinance.
Indicate that all reports, statements, exhibits, and written communications
presented will be accepted as part of the record.
Declare the public hearing closed.
Request Board consider a motion.
319
7. SUGGESTED MOTION.
Suggested motion(s) are set forth in the staff report.
8. DISCUSSION ON THE MOTION.
Discussion by the Board on the motion.
9. VOTE ON THE MOTION.
Vote on the motion or consideration of another action.
320
TOWN ADMINISTRATOR’S
OFFICE
Memo
To: Honorable Mayor Jirsa
Board of Trustees
From: Town Administrator Machalek and Town Attorney Kramer
Date: October 8, 2019
RE: Ordinance 28-19 Approving the Ground Lease Agreement and Resolution 35-19
Approving the Concession Agreement with DNC Parks & Resorts at Rocky
Mountain Park Inn, Inc. for the Estes Park Conference Center
(Mark all that apply)
PUBLIC HEARING ORDINANCE LAND USE
CONTRACT/AGREEMENT RESOLUTION OTHER______________
QUASI-JUDICIAL YES NO
Objective:
Town Board consideration of:
Ground Lease Agreement between DNC Parks & Resorts at Rocky Mountain Park Inn,
Inc. (Rocky) and the Town of Estes Park (Town); and
Conference Center Concession Agreement between the Town of Estes Park and DNC
Parks & Resorts at Rocky Mountain Inn, Inc.
Present Situation:
In November of 1989, the Town entered into a Ground Lease with Rex Maughan to allow the
construction and operation of the Estes Park Conference Center. In 1990, the Town assigned its
interest in the Ground Lease to the Estes Park Urban Renewal Authority (“EPURA”) for the
purpose of financing the construction of the Conference Center. The Conference Center was
constructed using funds from tax increment financing through EPURA. The tax increment bonds
were paid in full in 2008. EPURA assigned all of its interest in the Ground Lease back to the
Town effective July 26, 2010, which was the date EPURA was abolished.
Rocky purchased the Rocky Mountain Inn property in November 2016. Rocky and the Town
entered into a new Conference Center Concession Agreement effective in November 2016.
Under the terms of the original Ground Lease, the Conference Center will be fully the property
of the landlord upon termination of the agreement and the Town’s rights to possess and control
the Conference Center will end.
Proposal:
The original Ground Lease will terminate on November 14, 2019. The Town had an option to
renew for an additional twenty-year period by giving 180 days written notice, but determined not
to provide said written notice. The Town and Rocky have engaged in negotiations to enter into a
new Ground Lease and Concession Agreement as follows:
Ground Lease
The new Ground Lease contains the following provisions:
159
321
The Ground Lease is for a period of five years with an option for Rocky to renew the
Ground Lease for an additional five-year period at its sole discretion.
Rocky is responsible for all operation, maintenance and capital improvements for the
Conference Center.
The Town’s sole responsibility is to replace the pillars in the porte-cochere in 2020. This
responsibility is found in the Concession Agreement.
Upon termination of the Ground Lease, all right, title and interest of the Town in the
Conference Center, all equipment remaining therein, and any other property that has
become fixed to the Site shall be vested in the Landlord.
Rocky is responsible to pay all property taxes on the real property and the Town is
responsible for paying all taxes, if any, on the Conference Center building.
Rent for the Ground Lease by the Town is $1.00 per year.
The Ground Lease contains other standard ground lease provisions.
Conference Center Concession Agreement
The term of the Concession Agreement is the same as the Ground Lease.
Rocky is responsible for all services to operate the Conference Center.
Rocky is responsible for all major repairs and capital improvements of the Conference
Center and its systems.
The Town is only responsible to replace the four wood columns of the porte-cochere by
December 31, 2020.
Advantages:
Continues the current relationship between the Town and Rocky for the leasing and
operation of the Conference Center for an additional five-year period with the option of
Rocky to renew for an additional five years.
The new Ground Lease and the Concession Agreement move all costs of the operation,
maintenance, and capital improvements of the Conference Center to Rocky.
Disadvantages:
None
Action Recommended:
Staff recommends approval of the ordinance and resolution.
Finance/Resource Impact:
N/A
Level of Public Interest
Moderate
Sample Motion:
I move for the approval/denial of Ordinance 28-19 and Resolution 35-19.
Attachments:
Ordinance 28-19 Approving Ground Lease Agreement
Ground Lease Agreement
Resolution 35-19 Approving Conference Center Concession Agreement
Conference Center Concession Agreement
Construction Plan for Porte-Cochere (Exhibit B to Conference Center Concession
Agreement)
160
322
ORDINANCE NO. 28-19
AN ORDINANCE AUTHORIZING A GROUND LEASE AGREEMENT BETWEEN THE
TOWN OF ESTES PARK, AS LESSEE, AND DNC PARKS & RESORTS AT ROCKY
MOUNTAIN PARK INN, INC., AS LESSOR, FOR USE OF THE ESTES PARK
CONFERENCE CENTER
WHEREAS, in connection with the expiration of a prior ground lease, the parties
desire to continue the lease relationship.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO AS FOLLOWS:
Section 1: Under section 31-15-801 of the Colorado Revised Statutes, the Town
Board approves and authorizes the Mayor to sign the agreement referenced in the title of
this resolution in substantially the form now before the Board.
Section 2: This Ordinance shall take effect and be enforced thirty (30) days after
its adoption and publication.
PASSED AND ADOPTED by the Board of Trustees of the Town of Estes Park,
Colorado this ____ day of _______________, 2019.
TOWN OF ESTES PARK, COLORADO
By:
Mayor
ATTEST:
Town Clerk
I hereby certify that the above Ordinance was introduced at a regular meeting of the
Board of Trustees on the day of , 2019 and published in a
newspaper of general circulation in the Town of Estes Park, Colorado, on the day
of , 2019, all as required by the Statutes of the State of Colorado.
Town Clerk
161
323
DNC PARKS & RESORTS AT ROCKY MOUNTAIN PARK INN, INC.
AS LANDLORD
and
THE TOWN OF ESTES PARK, COLORADO
AS TENANT,
A Colorado Municipal Corporation
GROUND LEASE AGREEMENT
Dated as of November 14, 2019
162
324
1
GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (the “Ground Lease”) effective as of November 14,
2019, entered into by and between DNC PARKS & RESORTS AT ROCKY MOUNTAIN PARK
INN, INC. (the “Landlord”), as lessor hereunder, and THE TOWN OF ESTES PARK, COLORADO
(the “Tenant”), as lessee hereunder, a Colorado Municipal corporation duly organized, existing,
and in good standing under the laws of the State of Colorado;
W I T N E S S E T H:
WHEREAS, the Landlord is the owner of certain real property located within the Town of
Estes Park, Colorado, the legal description of which is set forth in Exhibit “A” hereto (the “Site”);
and
WHEREAS, the Tenant is a duly and regularly created, organized and existing public body
corporate and public, existing as such under and by virtue of the constitution and laws of the State
of Colorado, authorized by Section 31-15-801, C.R.S., to lease any real or personal property,
either as lessor or lessee, together with any facilities thereon, when deemed by the Board of
Trustees of the Town of Estes Park (the “Board”) to be in the best interests of the Tenant and its
inhabitants; and
WHEREAS, the Site was previously leased to the Tenant pursuant to that certain Ground
Lease Agreement, dated November 14, 1989, as amended on October 18, 1990 (the
“Predecessor Lease”), which Predecessor Lease was assigned to Landlord; and
WHEREAS, pursuant to the terms of the Predecessor Lease, the Tenant previously
constructed and equipped the Conference Center (as hereinafter defined) on the Site; and
WHEREAS, in connection with the expiration of the Predecessor Lease on November 14,
2019, the parties desire to enter into this Ground Lease Agreement, whereby the Landlord will
continue to lease the Site to the Tenant, and the Tenant will continue to lease the Site from the
Landlord, under the terms and conditions set forth herein; and
WHEREAS, the Predecessor Lease provided that, upon its termination, title to the
Conference Center would be vested in the Landlord, and consequently the Tenant’s entry into
this Ground Lease does not include a sale or transfer of the Conference Center but merely an
extension of that preexisting arrangement; and
WHEREAS, the Landlord has determined and hereby determines that the leasing of the
Site to the Tenant in the manner and for the purposes provided herein is in the best interests of
the Landlord; and
WHEREAS, the execution and performance of this Ground Lease has been authorized,
approved, and directed by all necessary and appropriate actions of the Landlord and Tenant.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained the parties hereto agree as follows:
163
325
2
ARTICLE I
DEFINITIONS
Section 1.1. Unless the context requires otherwise, the terms used herein shall have
the meanings ascribed thereto by the preambles hereto. In addition, unless the context requires
otherwise, the following terms shall have the meanings specified below.
“Concession Agreement” means the Conference Center Concession Agreement, dated
November 14, 2019, by and between the Tenant and the Landlord with respect to the operation
of the Conference Center.
“Conference Center” means the conference center facility including all equipment and
appurtenances thereto which occupy the Site.
“Force Majeure” means, without limitation, the following: acts of God; strikes, lockouts or
other industrial disturbances; acts of public enemies; orders of restraints of any kind of the
government of the United States of America or of the State or any of their departments, agencies
or officials or any civil or military authority; insurrection; riots; landslides; earthquakes; fires;
storms; droughts; floods; explosions; breakage or accidents to machinery, transmission pipes or
canals; or any other cause or event not within the control of the Tenant.
“Ground Lease Default” means one or more of the events described in Article X of this
Ground Lease.
“Landlord” means DNC Parks & Resorts at Rocky Mountain Park Inn, Inc., its successors
and assigns.
“Permitted Encumbrances” means (a) this Ground Lease; (b) liens for taxes and
assessments, if any, not then delinquent; and (c) utility, access and other easements and rights
of way, restrictions and exceptions which do not interfere with or impair the ability of the Tenant
to operate the Conference Center.
“Tenant” means the Town of Estes Park, Colorado, a Colorado Municipal corporation, its
successors and assigns.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES
Section 2.1. Representations, Covenants, and Warranties of the Landlord. The
Landlord represents, covenants, and warrants as follows:
(a) To the knowledge of the Landlord, neither the execution and delivery hereof, nor
the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the
transactions contemplated hereby conflicts with or results in a breach of the terms, conditions, or
provisions of any restriction or any agreement or instrument to which the Landlord is now a party
or by which the Landlord is bound, or constitutes a default under any of the foregoing.
164
326
3
(b) To the knowledge of the Landlord, there is no litigation or proceeding pending or
threatened against the Landlord affecting the right of the Landlord to execute this Ground Lease
or the ability of the Landlord to comply with his obligations contained hereunder.
(c) The Landlord has fee simple title to the Site, free and clear of any liens or
encumbrances, except Permitted Encumbrances, is authorized by law to enter into the
transactions contemplated by this Ground Lease, and to carry out its obligations hereunder.
Section 2.2. Representations, Covenants, and Warranties of the Tenant. The Tenant
represents, covenants, and warrants as follows:
(a) The Tenant is a public body politic and corporate duly organized and existing within
the State under the constitution and laws of the State. The Tenant has duly authorized and
approved the execution and delivery of this Ground Lease and other documents related to this
transaction.
(b) The leasing of the Site to the Tenant under the terms and conditions provided for
in this Ground Lease, is necessary, convenient, and in furtherance of the Tenant’s governmental
purposes, and is in the best interests of the citizens and inhabitants of the Tenant.
(c) The Tenant will not pledge, assign, mortgage, or encumber any of its rights under
this Ground Lease without the written consent of the Landlord.
(d) To the knowledge of the Tenant, neither the execution and delivery hereof, nor the
fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the
transactions contemplated hereby conflicts with or results in a breach of the terms, conditions, or
provisions of any restriction or any agreement or instrument to which the Tenant is now a party
or by which the Tenant is bound, or constitutes a default under any of the foregoing.
(e) To the knowledge of the Tenant, there is no litigation or proceeding pending or
threatened against the Tenant affecting the right of the Tenant to execute this Ground Lease or
the ability of the Tenant to comply with its obligations hereunder.
ARTICLE III
LEASING CLAUSE
Section 3.1 The Landlord leases the Site to the Tenant, and the Tenant leases the Site
from the Landlord, in accordance with the provisions of this Ground Lease, subject only to
Permitted Encumbrances, to have and to hold for the term of this Ground Lease as provided
herein.
ARTICLE IV
TERM OF GROUND LEASE
Section 4.1. Commencement of Term of Ground Lease. The term of this Ground
Lease shall commence as of November 14, 2019, and shall terminate as provided in Section 4.2
hereof.
165
327
4
Section 4.2. Termination of Term of Ground Lease. The term of this Ground Lease shall
terminate November 14, 2024.
Termination of the term of this Ground Lease shall terminate all unaccrued obligations of
the Tenant and shall terminate the Tenant’s rights of possession under this Ground Lease.
The provisions of this Section 4.2 are subject to Landlord’s option to renew, more
specifically set forth in Section 11.1.
Section 4.3. Remodel, Alteration or Expansion of Improvements. At any time during the
term of this Ground Lease, the Tenant shall have the right but not the obligation to remodel, alter,
expand, or otherwise improve the Conference Center or other improvements on the Site. Tenant
shall obtain the written consent of Landlord for any remodel, alteration, expansion, and/or
improvements, which consent shall not be unreasonably withheld.
Section 4.4. Transfer of the Conference Center. At the end of the term of this Ground.
Lease, all right, title, and interest of the Tenant in and to the Conference Center, any equipment
remaining therein, and any other property which has become permanently affixed to the Site shall
be vested in the Landlord. At the request of the Landlord, the Tenant shall execute and deliver
to the Landlord any release, acknowledgment, or any instrument or notice necessary or
appropriate to evidence the vesting of such right, title, and interest in the Landlord.
ARTICLE V
ENJOYMENT OF THE SITE
Section 5.1. Quiet Enjoyment. The Landlord hereby covenants that the Tenant shall
during the term of this Ground Lease peaceably and quietly have, hold and enjoy the Site without
suit, trouble, or hindrance from the Landlord, except as expressly required or permitted by this
Ground Lease. The Landlord shall not interfere with the quiet use and enjoyment of the Site by
the Tenant during the term of this Ground Lease. The Landlord shall, at the request of the Tenant,
join and cooperate fully in any legal action in which the Tenant asserts its right to such possession
and enjoyment, or which involves the imposition of any taxes or other governmental charges on
or in connection with the Site. In addition, the Tenant may join in any legal action affecting its
possession and enjoyment of the Site and shall be joined in any action affecting its liabilities
hereunder.
Section 5.2. Access to Public Rights-of-Way. The Landlord grants to the Tenant the
right of all necessary ingress and egress with respect to the Site for access purposes during the
term of this Ground Lease.
ARTICLE VI
PAYMENT OF RENT
Section 6.1 Payment of Rent. The Tenant shall pay Rent to the Landlord, on December
1, 2019, and on each December 1 thereafter during the term of this Ground Lease, the sum of
One Dollar ($1.00). In addition, for the 2019 tax year, Tenant shall promptly reimburse Landlord
an amount equal to 319/365 of the taxes and assessments imposed on or charged to the Site and
166
328
5
paid by the Landlord, upon presentation of the paid property tax statement to the Tenant by the
Landlord.
ARTICLE VII
UTILITIES; MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES
Section 7.1. Maintenance of and Utility Charges for the Conference Center.
Maintenance of the Conference Center and payment of all utility charges for the Conference
Center shall be as set forth in the Concession Agreement dated the 14th day of November, 2019
between the Parties.
Section 7.2. Taxes and Assessments. The payment of taxes and assessments imposed
on or charged to the Site shall be paid by the Landlord. The Landlord shall pay, or cause to be
paid, such taxes and assessments after receipt of tax bills from the requisite taxing authorities.
The Tenant shall promptly pay or cause to be paid when due all taxes and assessments that may
be imposed on or charged on the Conference Center.
Section 7.3. Insurance. The maintenance of insurance in connection with the Site and
Conference Center shall be governed by the Concession Agreement.
Section 7.4. Advances by Landlord. In the event that the Tenant fails to timely pay any
tax required by Section 7.2 hereof or to maintain any insurance required under the Concession
Agreement, the Landlord may, but shall not have the obligation to, at its option make such
payments or perform such acts, and any payments so made or costs or expenses so incurred by
the Landlord, together with interest thereon at the rate of 18% per annum, shall be reimbursed to
the Landlord by the Tenant.
Section 7.5. Compliance With Requirements. At any time during the term of this Ground
Lease the Tenant (i) shall use the Site only in a careful, safe, and proper manner, (ii) shall comply
with all applicable zoning and other land use requirements, (iii) shall not use or permit the use of
the Site in any manner or for any purpose prohibited by any applicable laws, civil or criminal, (iv)
shall commit no waste nor suffer the maintenance of any nuisance thereon, (v) shall comply with
all orders of all courts, tribunals, or other governmental authorities having jurisdiction in the matter,
and (vi) shall comply with all requirements of any issuer of any insurance policy required
hereunder.
ARTICLE VIII
FURTHER ASSURANCES; OTHER COVENANTS
Section 8.1. Further Assurances and Corrective Instruments. The Landlord and the
Tenant agree that they will, from time to time, execute, acknowledge, and deliver, or cause to be
executed, acknowledged, and delivered, such supplements hereto and such further instruments
as may reasonably be required for correcting any inadequate or incorrect description of the Site
hereby leased or intended so to be, or for otherwise carrying out the intention hereof.
167
329
6
ARTICLE IX
ASSIGNMENTS; LIMITATIONS ON ENCUMBRANCES
Section 9.1. Assignments and Subleases. The Landlord and the Tenant agree that the
rights of the Tenant in this Ground Lease may not be assigned, sublet or licensed without the
written consent of the Landlord, and any purported assignment, sublease or license will be null
and void without such consent.
Section 9.2. No Encumbrance, Mortgage or Pledge. Neither the Landlord nor the
Tenant shall directly or indirectly create, incur, assume, or suffer to exist any mortgage, pledge,
lien, charge, encumbrance, or claim on or with respect to the Site, except Permitted
Encumbrances.
Section 9.3. Damage, Destruction, and Condemnation. If, at any time during the term
of this Ground Lease (i) the Conference Center or any portion thereof shall be destroyed in whole
or in part, or damaged by fire or other casualty; or (ii) title to or the temporary or permanent use
of the Site or any portion thereof shall be taken under the exercise of the power of eminent domain
by any governmental body (excluding the Tenant) or by any person, firm, or corporation acting
under governmental authority; or (iii) title to or the use of all or any portion of the Site shall be lost
by reason of a defect in title thereto then the Landlord and the Tenant or any assignee or
sublessee thereof shall cause the proceeds of any insurance claim or condemnation award to be
paid to the Landlord.
ARTICLE X
DEFAULT AND REMEDIES
Section 10.1. Ground Lease Default Defined. Any one or more of the following shall be
a Ground Lease Default under this Ground Lease:
(a) failure by the Tenant to pay any Rent at the time specified herein for a period of 10
days after written notice specifying such failure and requesting that it be remedied, shall be given
by the Landlord; or
(b) failure by the Tenant to observe and perform any covenant, conditions, or
agreement on its part to be observed or performed, other than as referred to in (a), for a period of
45 days after written notice, specifying such failure and requesting that it be remedied, shall be
given by the Landlord, unless the Landlord shall agree in writing to an extension of such time prior
to its expiration; provided however, that if the failure stated in the notice cannot be corrected within
the applicable period, the Landlord shall not withhold its consent to an extension of such time if
corrective action shall be instituted within the applicable period and diligently pursued until the
default is corrected and provided further that if, by reason of Force Majeure, the Tenant shall be
unable in whole or in part to carry out any agreement on its part herein contained, other than the
obligation to pay Rent, the Tenant shall not be deemed in default during the continuance of such
inability. However, the Tenant agrees to remedy, as promptly as legally and reasonably, possible,
the cause or causes preventing it from carrying out its agreement.
Section 10.2. Remedies on Default. Whenever any Ground Lease Default shall have
happened and not been cured pursuant to the provisions of subparagraph 10.1(b), above, the
168
330
7
Landlord shall have the right, at its option and without further demand or notice, to remove the
Tenant from the Site pursuant to the applicable Statutes of the State of Colorado and may, at its
option, take what other action at law or in equity may appear necessary or desirable to enforce
its rights under this Ground Lease and terminate the Tenant’s possession of the Site.
Section 10.3. No Remedy Exclusive. Subject to Section 10.2 hereof, no remedy herein
conferred upon or reserved to the Landlord is intended to be exclusive, and every such remedy
shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing
upon any default shall impair any such right or power or shall be construed to be a waiver thereof,
but any such right and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Landlord to exercise any remedy reserved hereby, it shall not
be necessary to give any notice, other than such notice as may be required in this Article X.
Section 10.4. Agreement to Pay Attorneys’ Fees, Expert’s Fees and Expenses. In the
event that either party hereto shall default under any of the provisions hereof and the
nondefaulting party shall employ attorneys or experts or incur other expenses for the enforcement,
performance, or observance of any obligation or agreement on the part of the defaulting party
herein contained, the defaulting party agrees that it shall on demand therefor pay to the
nondefaulting party the reasonable fees of such attorneys and experts and such other reasonable
expenses so incurred by the nondefaulting party.
ARTICLE XI
OPTION TO RENEW AND OPTION TO PURCHASE
Section 11.1. Option to Renew. The Landlord, in its sole discretion, shall have the option
to renew this Ground Lease for an additional five (5) years beginning on November 14, 2024 and
terminating on November 14, 2029. All terms and conditions of this Ground Lease shall remain
in full force and effect if Landlord elects to renew this Ground Lease. Landlord shall give Tenant
one hundred eighty (180) days written notice, prior to the expiration of the original term of the
Ground Lease, of its election to renew.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Notices. All notices, certificates, or other communications hereunder shall
be sufficiently given and shall be deemed given when delivered or mailed by certified or registered
mail, postage prepaid, addressed as follows:
Landlord: DNC Parks & Resorts at Rocky Mountain Park Inn, Inc.
Attn:
250 Delaware Avenue
Buffalo, New York 14202
Tenant: Town of Estes Park
Attn: Town Administrator
169
331
8
P.O. Box 1200
170 MacGregor Avenue
Estes Park, CO 80517
The Landlord and the Tenant, may, by written notice, designate any further or different addresses
to which subsequent notices, certificates, or other communications shall be sent.
Section 12.2. Binding Effect. This Lease shall inure to the benefit of and shall be binding
upon the Landlord and the Tenant and their respective successors and assigns. In the event the
Tenant subleases the Site or assigns its rights hereunder, the Tenant shall require such assignee
or sublessee to consent in writing to and assume and agree to comply with all terms of this Ground
Lease.
Section 12.3. Amendments, Changes, and Modifications. This Ground Lease may not
be amended, changed, modified, or altered without the written consent of the parties hereto. Any
such amendment, change, modification, or alteration shall be in writing and executed in the same
manner as this Ground Lease is executed.
Section 12.4. Obligations of Landlord. To the extent this Lease constitutes a multiple-
fiscal year debt or financial obligation of the Tenant, the Tenant’s obligation to make payments
shall be subject to annual appropriation pursuant to the Tenant’s annual budgeting process and
Article X, Section 20 of the Colorado Constitution. The Tenant shall have no obligation to continue
this Ground Lease in any fiscal year in which no such appropriation is made. No provision of this
Ground Lease shall be interpreted or construed as a general obligation debt or indebtedness of
the Landlord.
Section 12.5. Holidays. If the date for making any payment or the last day for
performance of any act or the exercising of any right, as provided in this Ground Lease, shall be
a legal holiday or a day on which banking institutions in the Town of Estes Park are authorized by
law to remain closed, such payment may be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking institutions are authorized by
law to remain closed, with the same force and effect as if done on the nominal date provided in
this Ground Lease.
Section 12.6. Severability. In the event that any provision of this Ground Lease, other
than the requirement to pay Rent and the requirement of the Landlord to provide quiet enjoyment
of the Site, shall be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof, the intention being
that the various provisions hereof shall be severable.
Section 12.7. Execution in Counterparts. This Ground Lease may be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 12.8. Applicable Law. This Ground Lease shall be governed by and construed
in accordance with the laws of the State of Colorado.
Section 12.9. Captions. The captions or headings herein are for convenience only and
in no way define, limit, or describe of any provisions or sections of this Ground Lease.
170
332
9
Section 12.10. Termination of Predecessor Lease. The parties agree that the
Predecessor Lease is terminated and of no further force and effect.
(Remainder of Page Intentionally Left Blank – Signature Page Follows)
171
333
10
IN WITNESS WHEREOF, the Tenant has executed this Ground Lease in its corporate
name with its corporate seal hereunto affixed and attested by its duly authorized officers, and the
Landlord has caused this Ground Lease to be executed. All of the above are effective as of date
first above written.
DNC Parks & Resorts at Rocky Mountain Park Inn, Inc.
as Landlord
_____________________________
Town of Estes Park, Colorado
as Tenant
_______________________________
STATE OF ____________________ )
) ss.
COUNTY OF _____________________ )
The foregoing instrument was acknowledged before me this _____ day of
______________, 2019, by ________________________ as ____________________ of DNC
Parks & Resorts at Rocky Mountain Inn, Inc.
WITNESS my hand and official seal.
My Commission Expires: _____________________
____________________________
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this ____ day of ___________,
2019, by _______________, as Mayor of the TOWN OF ESTES PARK, COLORADO.
WITNESS my hand and official seal.
My Commission Expires: _______________________
____________________________
Notary Public
172
334
11
EXHIBIT A
Legal Description of Real Property
A tract of land located in Section 30, T5N, R72W of the 6th P.M., Larimer County, Colorado being more particularly described as commencing at the Northwest corner of lot 41, Little Prospect Mountain Addition to the Town of Estes Park, Colorado, with all bearings contained herein being relative to the North line of said Lot 41 considered as bearing N89°07'50"W; said Northwest corner is the true point of BEGINNING:
thence S02°31'12"E a distance of 198.00 feet along the Easterly
right-of-way line of Stanley Avenue;
thence S89°07'50"E n distance of 327.37 feet.;
thence N00°52'10"E a distance of 49.00 feet;
thence N58°40'10"E a distance of 136.00 feet;
thence S89°l2'44"E a distance of 75.90 feet;
thence N06°36'00"W a distance of 49.00 feet;
thence N58°40'10"E a distance of 81.00 feet to the Westerly right-
of-way line of Colorado Highway No. 7;
thence N34°37'5l"W a distance of 165.00 feet along said right-of-
way line;
thence S32°01'38"W a distance of 15.34 feet;
thence S58°40'10"W a distance of 53.33 feet;
thence N31°19'50"W a distance of 4.33 feet;
thence S58°40'10"W a distance of 22.33 feet;
thence S31°19'50"E a distance of 4.33 feet;
thence S58°40'10"W a distance of 21.00 feet;
thence N31°19'50"W a distance of 23.00 feet;
thence S58°40'10"W a distance of 18.67 feet;
thence N31°19'50"W a distance of 6.67 feet;
173
335
12
thence S58°40'10"W a distance of 21.00 feet;
thence S31°19'50"E a distance of 3.00 feet;
thence S58°40'10"W a distance of 13.00 feet;
thence S31°19'50"E a distance of 14.00 feet;
thence S58°40'10"W a distance of 13.00 feet;
thence S31°19'50"E a distance of 10.00 feet;
thence S58°40'10"W a distance of 26.00 feet;
thence S31°19'50"E a distance of 2.34 feet;
thence S58°40'10"W a distance of 69.61 feet;
thence N89°19'08"W a distance of 85.41 feet;
thence S00°40'52"W a distance of 20.00 feet;
thence N89°19'08"W a distance of 57.67 feet;
thence N00°40'52"E a distance of 20.00 feet;
thence N89°29'55"W a distance of 129.49 feet to the true point of
BEGINNING.
174
336
RESOLUTION 35-19
A RESOLUTION APPROVING THE CONFERENCE CENTER CONCESSION
AGREEMENT WITH DNC PARKS & RESORTS AT ROCKY MOUNTAIN PARK INN,
INC.
WHEREAS, in connection with the expiration of a prior concession agreement for
the conference center, the parties desire to continue the concession services relationship.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK, COLORADO:
the Town Board approves and authorizes the Mayor to sign the agreement
referenced in the title of this resolution in substantially the form now before the Board.
DATED this day of , 2019.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
175
337
1
CONFERENCE CENTER CONCESSION AGREEMENT
THIS CONFERENCE CENTER CONCESSION AGREEMENT (the “Agreement”) is
effective the 14th day of November, 2019, by and between the TOWN OF ESTES PARK,
COLORADO, a Colorado municipal corporation (the “Town”), and DNC PARKS & RESORTS
AT ROCKY MOUNTAIN PARK INN, INC., a Delaware corporation (“Rocky”).
WHEREAS, Rocky is the Landlord and the Town is the Tenant pursuant to the terms and
conditions of the Ground Lease Agreement dated November 14, 2019 (the “Ground Lease”).
WHEREAS, the Town has constructed and operated the Estes Park Conference Center (the
“Conference Center”) on the real property that is the subject of the Ground Lease; and
WHEREAS, the Town and Rocky desire for Rocky to provide services to the Conference
Center under the terms and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND
AGREEMENTS HEREIN CONTAINED, THE RECIPT AND SUFFICIENCY OF WHICH IS
HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Term of Agreement. The term of this Agreement shall be from the effective date
hereof to the later of: (a) November 14, 2029 or (b) the termination of the Ground Lease, subject
to the provisions of Paragraph 27 of this Agreement.
2. Services to be Performed by Rocky. During the term of this Agreement, Rocky
shall perform the following services for the operation of the Conference Center:
a. Rocky shall provide all necessary food and beverage services, including
liquor service, to the Conference Center. Rocky shall be entitled to charge the participants
at the Conference Center for these food and beverage services in accordance with the
provisions of Paragraph 4 of this Agreement.
b. Rocky shall provide all inventory necessary for use in the Conference
Center for food and beverage service. Inventory shall include, but not be limited to the
following: china, silverware, glassware, trays, tray stands, linens, portable bars, service
carts, warming and refrigerating carts, ash trays, bread baskets and condiment dishes.
Rocky shall continue to maintain the amount of inventory necessary to fulfill the
obligations of this Agreement.
c. Rocky shall provide all necessary licenses and permits for operation of the
food and beverage concession at the Conference Center, such as liquor licenses, sales tax
licenses and business licenses.
176
338
2
d. Rocky will provide all necessary housekeeping for the Conference Center.
These services shall include, but are not limited to, cleaning of the Conference Center,
janitorial services and trash removal. Janitorial services include, but are not limited to,
periodic carpet cleaning, periodic window washing, replacement of all restroom supplies,
replacement of light bulbs, and periodic cleaning of furnishings and light fixtures.
e. Rocky shall perform all routine preventative repair and maintenance on the
Conference Center due to normal wear and tear associated with the usage of the Conference
Center. Said repair and maintenance shall include, but are not limited to, repairing and
maintaining all of the various mechanical systems such as heating, air conditioning, audio-
visual systems, water and sewer services, and the repair of minor damage to the Conference
Center caused by normal usage.
f. Rocky shall remove all snow and ice from the Conference Center walks,
drives, patios, and parking areas.
g. Rocky shall provide upkeep for all landscaping on the entire Conference
Center site, including maintenance, repair and winterization of all sprinkler systems
servicing the site. Upkeep includes, but is not limited to, watering, weeding, fertilizing,
trimming, mowing, mulching, aerating, and sweeping sidewalks, patios and drives. Rocky
shall annually replace all trees, shrubs and flowers that require replacement.
h. Rocky shall provide registration, conference coordination services and
banquet management services for the Conference Center. Said services shall include at
least one (1) designated employee who will be at the Conference Center during all
functions using the Conference Center.
i. Rocky shall provide all normal and reasonable security for the Conference
Center, excluding parking areas. Rocky shall be responsible for obtaining contract security
at the request of any conference.
3. Periodic Review of Operations. The parties shall, on an ongoing and continuing
basis as shall be reasonable and necessary, review the services provided pursuant to this
Agreement. Such review shall include periodic written reports, guest-comment cards and meetings
with Town Representatives. The Town shall be kept fully informed of all service activities and
operations.
4. Food and Beverage Operations. Rocky shall provide facilities for food and
beverage service to the Conference Center. In consideration of providing these food and beverage
services, Rocky shall receive exclusive rights to the food and beverage concessions of the
Conference Center. Annually, on or before January 31st, Rocky shall present to the Town a
proposed price for all food and beverage services for the next year. Rocky shall supply necessary
financial information with the pricing for the Town to determine whether or not the cost of said
177
339
3
service is reasonable in comparison with other food and beverage concessions servicing
conference centers of similar size and activities located within Colorado. The Town shall give
written approval to the proposed food and beverage cost on or b efore March 1st of each year of
this Agreement. If said approval is not given by March 1st, Rocky’s proposed pricing shall be
deemed approved. In the event Rocky determines it is necessary to increase or decrease the cost
of food and beverage service during any year period, they shall provide the Town with the
proposed changes, including all necessary financial documentation upon which said cost increase
or decrease is based. The Town shall, as soon as possible, review said proposed changes to
determine whether or not said changes are reasonable under the terms of this paragraph.
5. Conference Room Rental. Rocky shall determine a room rental price for use of the
Conference Center. Annually, on or before January 31st, Rocky shall present to the Town a
proposed price for all room rental fees for the next year. Rocky shall supply necessary financial
information with the pricing for the Town to determine whether or not the cost of said room rental
is reasonable in comparison with other room rental fees charged by conference centers of similar
size and activities located within Colorado. The Town shall give written approval of the proposed
room rental costs on or before March 1st. If said approval is not given by Rocky proposed pricing
shall be deemed approved. In the event Rocky determines it is necessary to increase or decrease
the room rental cost during any year period, they shall provide the Town with the proposed
changes, including all necessary financial documentation upon which said cost increase or
decrease is based. The Town shall, as soon as possible, review said proposed changes to determine
whether or not said changes are reasonable under the terms of this paragraph.
6. Conference Promotion and Booking. The Town agrees that the Town’s Events
Complex marketing staff will, in conjunction with their marketing efforts for the Town of Estes
Park Events Complex, also promote and market the Conference Center. The Town agrees that its
employee shall coordinate Conference Center sales and bookings with Rocky sales staff. Rocky
sales staff will make the final determination on all Conference Center sales and bookings.
Bookings shall not be at a rate less than the conference room rental rate established pursuant to
paragraph 5 and shall be on terms and conditions established by Rocky in its written rental
agreement for the Conference Center, which rental agreement will be provided by Rocky from
time to time and solely used by the Town.
7. Conference Center Personnel. It shall be the sole responsibility of the Rocky to
provide the personnel necessary to fulfill its obligations pursuant to the terms of this Agreement.
It is understood by the parties that there shall be no Town employees needed to provide food and
beverage services for the Conference Center.
8. Major Repairs and Capital Improvements. Rocky shall be responsible for all capital
improvements and major repairs to the Conference Center and its systems. Rocky shall consult
with the Town prior to making any capital improvements and major repairs to the Conference
Center. However, the Town shall be responsible for replacing the four wood columns of the porte-
178
340
4
cochere, as more fully set forth in the Construction Plan attached hereto as Exhibit B and
incorporated herein by reference. The columns shall be replaced on or before December 31, 2020.
9. Fees. In consideration of the granting to Rocky of the exclusive license for the food
and beverage concession and other services for the Conference Center described herein, Roc ky
shall pay an annual fee of One Dollar ($1.00), payable on or before December 1 of each year.
Other than payment of the annual fee described in this paragraph, Rocky shall be entitled to all
food, beverage and rental fees arising out of the operation of the Conference Center. For purpose
of clarity, all revenues arising out of the operation of the Conference Center, whether originated
by Rocky or the Town, will be remitted to Rocky.
10. Accommodation Rights. It is the understanding of the parties hereto that Rocky will
not have exclusive lodging rights for the Conference Center participants. All Conference Center
participants shall be entitled to pursue accommodations of their own choice in the Estes Park area.
However, the Town and Rocky agree to cooperate in the providing of accommodations at The
Ridgeline Hotel at Estes Park subject to the above provision. Rocky also agrees that for events of
the appropriate size, it will cooperate with the Town in providing facilities at a market rate for
those events in which both Rocky and the Conference Center are needed to accommodate the
number of participants.
11. Utilities. Rocky shall be responsible for all utilities, such as electricity, gas, water,
telephone and sewer used at the Conference Center and The Ridgeline Hotel at Estes Park.
12. Termination. Either party shall have the option of terminating this Agreement in
the event of a default hereunder.
a. Default. The following shall, unless cured in accordance with Paragraph b
below, constitute a default:
i. The filing of a voluntary petition for protection under federal
bankruptcy laws, the failure to obtain dismissal of an involuntary petition under
federal bankruptcy laws within thirty (30) days after filing;
ii. A discontinuance by Rocky of its business or abandonment of its
activities at the Conference Center, except in connection with an assignment
pursuant to Section 19.
iii. A material breach by the other party of its duties and obligations
under this Agreement.
b. Cure. The defaulting party shall have thirty (30) days after written notice
specifying the nature of its default to cure said default.
179
341
5
c. Exercise of Termination Option. In the event of a default under Paragraph
(a) (i) above, this Agreement shall terminate immediately upon delivery of written notice
of election to terminate the Agreement. In the event of default under the other provisions
of Paragraph a above, this Agreement shall terminate upon expiration of the cure period
under Paragraph b.
13. Independent Contractor. Rocky is not an agent or employee of the Town hereunder,
and all of its activities relating to the Conference Center shall be in its capac ity as an independent
contractor to the Town.
14. Indemnification by Rocky. Except to the extent of the Town’s intentional
misconduct or negligent acts or omissions, Rocky agrees to indemnify, hold harmless and defend
the Town and its officers, agents, insurers, self-insurance pool and employees from and against all
liability for any and all claims, liens, suits, demands or actions for damages, injuries to persons,
including death, property damage, including loss of use, and expenses, including court costs and
reasonable attorney’s fees arising out of or resulting from Rocky’s intentional misconduct or
negligent actions or omissions in providing the services for operation of the Conference Center
under the terms and provisions of this Agreement.
15. Indemnification by the Town. Except to the extent of Rocky’s intentional
misconduct or negligent acts or omissions, to the extent lawfully allowed, the Town agrees to
indemnify, hold harmless and defend Rocky, its officers, agents and employees, from and against
all liability for any and all claims, liens, suits, demands or actions for damages, injuries to persons,
including death, property damage, including loss of use, and expenses, including court costs and
reasonable attorney’s fees arising out of or resulting from any intentional misconduct or negligent
act or omission of the Town with regard to its operation of the Conference Center under the terms
and provisions of this Agreement.
16. Notice of Claims. The Town and Rocky will provide each other with prompt notice
of any event covered by the indemnity section of this Agreement and in the event a claim or action
is filed, each party may employ attorneys of its own choosing to prepare and defend the claim or
action on its behalf.
17. Insurance. The parties agree to obtain and maintain the insurance coverages set
forth on Exhibit A attached hereto and incorporated herein by reference.
18. Covenant of Cooperation. Rocky agrees to provide to the Town prompt written
notice of any injury suffered as a result of operation of the food and beverage concession at the
Conference Center, significant complaints, whether written or otherwise, about the Conference
Center or its management, and actual anticipated disputes with or claims by third parties. Rocky
further covenants to cooperate with the Town in resolving any such complaints, disputes or claims.
180
342
6
19. Assignment. The rights and obligations under this Agreement are not assignable by
either party without the prior written consent of the other party. However, no such written consent
shall be required for transfer by Rocky of its assets to any corporation or partnership that is an
affiliate of Rocky or to its assignee or successor-in-interest to the Ground Lease.
20. Parties’ Representatives. Whenever, under the provisions of this Agreement, the
approval of the Town is required, or the Town is required to take some action at the request of the
other, unless otherwise provided, such approval or such request shall be given for the Town by the
Town’s Representative. Rocky shall be authorized to act on any such approval or request. The
Town shall be authorized to act on any approval provided by Rocky’s Representative. The Parties
agree to provide written notice to the other Party of their Representative on or before January 1st
of each year during the term of this Agreement.
21. Notices. All notices, demands or other documents required or desired to be given,
made or sent to either party under this Agreement shall be made in writing, shall be deemed
effective upon receipt and shall be personally delivered or mailed, postage prepaid, certified mail,
return receipt requested, or by overnight express mail by a nationally recognized courier service
as follows:
TOWN OF ESTES PARK
Town Administrator
Post Office Box 1200
Estes Park, CO 80517
DNC PARKS & RESORTS AT ROCKY
MOUNTAIN PARK INN, INC.
250 Delaware Avenue
Buffalo, NY 14202
Attn: President
With a copy to:
DELAWARE NORTH COMPANIES,
INCORPORATED
250 Delaware Avenue
Buffalo, NY 14202
Attn: Law Department
The address for notices may be changed by written notice given to the other party as provided
above.
22. Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter hereof and this Agreement supersedes all prior agreements
with respect to the subject matter of this Agreement.
23. Applicable Law. This Agreement shall be construed in accordance with the laws of
the State of Colorado and venue for any civil action with resp ect thereto shall be proper only in
Larimer County, Colorado.
181
343
7
24. Attorney’s Fees. In the event either party to this Agreement shall institute legal
proceedings or be the defendant in legal proceedings for the purpose of enforcing the term and
provisions of this Agreement and shall prevail in a final, non-appealable judgment entered by a
court of competent jurisdiction, then the non-prevailing party shall reimburse the prevailing party
for all reasonable attorney’s fees, court costs and reasonable expert witness fees incurred as a result
of such proceedings.
25. Parties Bound. With the exception of the limitation on the assignability of this
Agreement as provided above, this Agreement shall bind the respective successors and assigns of
the parties hereto.
26. Legal Construction. In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision h ereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
27. Ground Lease. Rocky is the Landlord and the Town is the Tenant pursuant to the
terms and conditions of the Ground Lease Agreement dated November 14, 2019. The parties
understand and agree that all rights under this Agreement are subject to the terms and conditions
of the Ground Lease.
28. Rocky Affiliation. The Town agrees that Rocky shall have the right to affiliate with
a nationally recognized hotel/motel organization or remain an independent operation. Any new
affiliation shall be subject to the prior written approval of the Town, which approval shall not be
unreasonably withheld.
29. Work By Illegal Aliens Prohibited.
a. Rocky hereby certifies that, as of the date of this Agreement, it does not
knowingly employ or contract with an illegal alien and that Rocky has participated or
attempted to participate in the basic pilot employment verification program as defined in
CRS § 8-17.5-101(1) (‘‘Program”) in order to verify that it does not employ illegal aliens.
b. Rocky shall not knowingly employ or contract with an illegal alien to
perform works under this Agreement or enter into a contract with a subcontractor that fails
to certify to Rocky that the subcontractor shall not knowingly employ or contract with an
illegal alien to perform work under this Agreement.
c. Rocky hereby certifies that it has verified or attempted to verify through
participation in the Program that Rocky does not employ any illegal aliens and, if Rocky
is not accepted into the Program prior to entering into this Agreement, that Rocky shall
182
344
8
apply to participate in the Program every three (3) months until Rocky is accepted or this
Agreement has been completed, whichever is earlier.
d. Rocky is prohibited from using Program procedures to undertake pre-
employment screening of job applicants while this Agreement is being performed.
e. If Rocky obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, Rocky shall be
required to:
i. notify the subcontractor and Town within three (3) days that Rocky
has actual knowledge that the subcontractor is employing or contracting with an
illegal alien; and
ii. terminate the subcontract with the subcontractor if within three (3)
days of receiving the notice required pursuant to this subparagraph the
subcontractor does not stop employing or contracting with the illegal alien; except
that Rocky shall not terminate the contract with the subcontractor if during such
three (3) days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal alien.
f. Rocky shall comply with any reasonable request by the Colorado
Department of Labor and Employment (“Department”) made in the course of an
investigation that the Department is undertaking pursuant to the authority established in
C.R.S. Article 17.5.
g. If Rocky violates this paragraph, the Town may terminate this Agreement
for breach of contract. If this Agreement is so terminated, Rocky shall be liable for actual
and consequential damages to the Town.
30. Termination of Previous Agreement. The parties agree that the Conference Center
Concession Agreement dated November ___, 2016 previously entered into by and between the
Town and Rocky is terminated and of no further force and effect.
31. Counterparts. This Agreement may be executed in two or more counterparts, each
of which, when taken together, shall constitute one and the same agreement. Facsimile or PDF
signatures shall constitute original signatures.
[The next page is the signature page.]
183
345
9
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first
above written.
TOWN OF ESTES PARK
By________________________________________
Mayor
ATTEST:
________________________________
Town Clerk
DNC PARKS & RESORTS AT ROCKY MOUNTAIN PARK INN, INC.
By________________________________________
Name:
Title:
184
346
10
EXHIBIT A
Insurance
a. General Liability, Automobile and Workers Compensation Insurance. The
Parties shall procure and keep in force during the duration of this Agreement
the following insurance coverages and shall provide the other Party with a
certificate of insurance.
i. Comprehensive general liability insurance with minimum combined
single limits of $1,000,000 each occurrence and $1,000,000 aggregate.
The policy shall be applicable to all premises and operations. The
policy shall include coverage for bodily injury, broad form property
damage (including completed operations), personal injury (including
coverage for contractual and employee acts), blanket contractual,
independent contractors, products, and completed operations. The
policy shall contain a severability of interests provision.
ii. Comprehensive automobile liability insurance against any liability for
personal injury, bodily injury, or death arising out of the use of motor
vehicles and covering operations of all motor vehicles controlled by the
Party which are used in connection with this Agreement, whether the
motor vehicles are owned, non-owned, or hired, with a combined single
limit of at least $1,000,000.
iii. Workers’ compensation insurance to cover obligations imposed by
applicable law for any employee engaged in the performance of work
under this Agreement, and Employer’s Liability insurance with
minimum limits of five hundred thousand dollars ($500,000) each
accident, five hundred thousand dollars ($500,000) disease – policy
limit, and five hundred thousand dollars ($500,000) disease – each
employee. Evidence of qualified self-insured status may be substituted
for the workers’ compensation requirements of this paragraph.
b. Casualty and Property Damage Insurance. Rocky shall cause casualty and
property damage insurance to be carried and maintained with respect to the
Conference Center in an amount equal to the market value of the
improvements, including all Equipment located therein, or the replacement
cost (excluding foundations) of the Conference Center and Equipment,
whichever is greater. The insurance policy may have a deductible clause in an
amount not to exceed $5,000.
c. Requirements. Required insurance policies for Rocky shall be with companies
qualified to do business in Colorado with a general policyholder’s financial
rating acceptable to the Town. The Town’s required insurance shall be through
its membership in the Colorado Intergovernmental Risk Sharing Agency, a
185
347
11
municipal self-insurance pool, or with companies qualified to do business in
Colorado with a general policyholder’s financial rating acceptable to Rocky.
Said policies shall not be cancelable or subject to reduction in coverage limits
or other modification except after thirty days prior written notice to the other
Party. The Party shall identify whether the type of coverage is “occurrence” or
“claims made.” If the type of coverage is “claims made,” which at renewal the
Consultant changes to “occurrence,” the Party shall carry a six-month tail.
Comprehensive general and automobile policies shall be for the mutual and
joint benefit and protection of the Parties. Such policies shall be written as
primary policies not contributing to and not in excess of coverage the other
Party may carry.
d. Governmental Immunity Act. No term or condition of this Agreement shall
be construed or interpreted as a waiver, express or implied, of any of the
notices, requirements, immunities, rights, benefits, protections, limitations of
liability, and other provisions of the Colorado Governmental Immunity Act,
C.R.S. §24-10-101 et seq. and under any other applicable law.
186
348
12
EXHIBIT B
Construction Plan
187
349
188350