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HomeMy WebLinkAboutC03-309 Berry Creek LLCFOR MILLER RANCH PHASE II AND PHASE III File No. PDF - 0 0 0"l q THIS SUBDIVISION~D ON-SITE IlVf~R ,VEMENTS AGREEMENT ("Agreement") made and entered into this day of ~-'1 2003 by and between Berry Creek Limited Liability Company (hereinafter "Developer") and the Board of County Commissioners of the County of Eagle, State of Colorado (hereinafter "County"). WITNESSETH WHEREAS, the County is presently the owner of certain real property identified on the final plat of Miller Ranch as a Resubdivision of Tract D, Berry Creek/Miller Ranch PUD, County of Eagle, State of Colorado. WHEREAS, the County and Developer have entered into a Development Agreement dated March 12, 2002and Land Lease and Option Agreement dated August 20, 2002, pursuant to which Developer is to develop portions of Tract D into a single and multi-family housing development project. WHEREAS, pursuant to the Land Lease and Option Agreement dated August 20, 2002 the County entered into that lease agreement for the purpose of leasing the ground to Developer so that it can construct improvements and sell the residential units as they are constructed. WHEREAS, the Developer, as a condition of approval of the Final Plat of Miller Ranch Filing 2, a Resubdivision of Tract A and Parcel 14 Miller Ranch (phase II and IIi) (hereinafter referred to as "Subdivision"), desires an Agreement as provided for by the Land Use Regulations of Eagle County, Colorado, 1999, as amended ("hereinafter referred to as "Land Use Regulations") Chapter II, Section 5-280.B.S.e. and C.R.S. 30-28-137; and WHEREAS, pursuant to Chapter II, Section 4-620 of the Land Use Regulations, when a proposed subdivision is located in an area serviced by an existing County road and the County determines that the traffic generated by such development will result in safety hazards for vehicle drivers, pedestrians and/or adjacent residents, or will result in substantially increased maintenance costs to the County, the County is empowered to determine the amount of work necessary to bring the affected County road to acceptable standards to provide adequate safe service to present owners, to the proposed subdivision and to other probable subdivisions, and to require the Developer to improve its equitable portion of such road to an acceptably safe condition; and WHEREAS, the Developer has agreed to improve the roads within the subdivision to an acceptably safe condition and to accommodate the incremental increase in traffic burden to the said roads within the subdivision resulting from the development of this Subdivision, by the engineering, construction and completion of physical improvements to the said road as set forth in this Agreement; and WHEREAS, pursuant to Chapter II, Section 4-620.9 of the Land Use Regulations and C.R.S. 43-2-147, the Developer shall provide access for all lots and parcels it creates to the state highway system in conformance with the State Highway Access Code. WHEREAS, Developer intends to enter into an agreement with a suitable contractor for the construction of infrastructure and site work for Phases iI and III of the housing development on Tract D, Berry Creek/Miller Ranch PUD. NOW, THEREFORE, in consideration of the premises and the covenants and agreements herein contained to be kept and performed by the parties hereto, it is hereby understood and agreed as follows: 1. SUBDIVISION IlVIPROVEMENTS. 1.1 Subdivision Improvements. Subdivision Improvements are deemed to include all public improvements, including but not limited to on-site improvements as set forth in all documents, construction drawings, designs, maps, specifications, sketches, cost estimates, and other materials submitted by the Developer prior to or at final plat approval and acceptance by the County. Such Subdivision Improvements shall include roads, utilities and other similaz public improvements as specified by the County Engineer. 1.2 Scope of Work. The Developer hereby agrees, at its sole cost and expense, to furnish all necessary equipment and material, and to complete all Subdivision Improvements as set forth in all documents, construction drawings, designs, maps, specifications, sketches, and other materials submitted by the Developer and accepted by the County, and in accordance with all laws of the United States of America, State of Colorado, County of Eagle, and their respective agencies and affected governmental entities. It is agreed that Developer will enter into an agreement with a suitable contractor for the performance of the Subdivision Improvements within 60 days of the date of this Agreement. 1.3 Duties of Developer. For those Subdivision Improvements required herein, including but not limited to the reconstruction and physical improvement of that portion of any road subject to this Agreement, the Developer shall retain a Colorado Professional Registered Surveyor or Professional Engineer whose duties shall include construction staking, observation of construction for conformance to the approved plans and specifications, and materials sampling, testing and inspection using the Colorado Department of Transportation Standard Specifications for Road and Bridge Construction -1999 as a guide for frequency of sampling and testing. 1.3.1 Construction Staking. Where applicable and by way of example only, the following is a highlighting of the construction staking that will be required of the Developer: ~I~~~n~~~~R~~~~l0~~ll~l~~lA~ 8~',:::bs,,.o i • a. Roadway -horizontal and vertical control every 50 feet or every 25 feet in critical areas, specifically including: =slope staking -points of curvature -points of tangency -fillet radius points -culverts -transition points for super-elevation -finished sub-grade -finished gravel b. Water, Sewer, and Other Utilities stake the sewer mains at the manholes and the service lines and the water mains at the deflectors and fittings. 1.3.2 Testing. Where applicable and by way of example only, the following is a highlighting of the acceptance testing that will be required of the: a. Utility and drainage culvert trench backfill under roadwayprisms -one density test per 200 C.Y. of backfill or a minimum of one test per roadway crossing. This will require daily visits to the site by a testing laboratory when utilities or drainage culverts are being backfilled within the roadway prism. b. Embankments for roadways -one density test per 2,000 C.Y. of any additional embankment(s); and one density test per 500 C.Y. when within 100 feet of bridge approaches. c. Finished sub-grade -one density test per 2501ineal feet of roadway. d. Aggregate base course -one in-place density per 2501ineal feet of roadway, and gradation and Atterberg Limits test per 2000 tons of aggregate base course. e. Hot Bituminous Pavement -two asphalt content, gradation and in-place density tests per day's production. f. Concrete -Curb and Gutter, Sidewalks and Bikepaths -tests for air content, slump and compressive strength per 50 C.Y. of concrete placed or maximum of one set of tests per day. 1.3.3 Notification/Road Construction. Developer or his Engineer shall notify the Eagle County Engineer for the purpose of arranging an on-site inspection no less than forty-eight (48) hours in advance of the following stages of road construction: ~NI~I'l~lnll~l~'~~IIAU'~1 8'4 a86 • 1) Finished subgrade 2) Finished Aggregate Base Course 3) Asphalt Placement. 4) Concrete -Curb and Gutter, Sidewalks and Bikepaths The County Engineer shall make an on-site visit within the forty-eight (48) hours notification for the purpose of observing proof rolls on items 1) and 2) above and for general observation of construction methods being employed at these stages. Said on-site inspection by the Eagle County Engineer shall in no way abrogate the duties of the Developer outlined elsewhere in this Agreement. The Developer shall provide the proof rolling by arranging for a loaded single unit truck carrying 18,000 pounds per rear axle. 1.3.4 Witnessing of Water and Sewer Laterals. It is essential that the ends of these laterals be witnessed by the Developer's engineer to a minimum of three divergent points and a permanent record made of the same. Copies of these iecords are required to be fiunished to the Eagle County Engineer prior to commencement of the two year warranty period, In addition to witnessing of the horizontal location of these laterals, a vertical witness shall be required. Horizontal witnessing shall be to property corners, fire hydrants, manholes, and other "permanent" features. Vertical witnessing shall be based on depth below~ground and elevation based on a datum used for the subdivision. Bench marks shall be shown on witness records. 1.3.5 Test Reports. All test reports shall be consecutively numbered, with copies furnished directly to the Eagle County Engineer from the laboratory as they are reported to the Developer or its engineer. 1.3.6 As-Built Drawings of Subdivision Improvements. As-Built drawings, sealed, signed and dated by a Registered Professional Engineer or Licensed Surveyor showing the as-constructed horizontal and vertical locations of Subdivision Improvements shall be submitted to the Eagle County Engineer prior to commencement of the two year warranty period. This shall include as-built drawings in an electronic format (auto-cad) acceptable to the County Engineer. 1.3.7 Affidavit of Monumentation. An Affidavit of Monumentation sealed, signed and dated by a Registered Professional Land Surveyor stating that the subdivision has been monumented in accordance with 38-51-105, C.R.S., and Chapter II, Section 5-280.S.a (1)(a) of the Eagle County Land Use Regulations shall be provided to the Eagle County Engineer prior to the acceptance of the Subdivision Improvements by the County. 1.4 Compliance with Colorado Department of Highways Access Code. Developer shall provide the County with designs in compliance with the Colorado Department of Highways Access Code for all road improvements. 1.5 Date of Completion. All Subdivision Improvements shall be completed prior to July 1, 2005 or such other date as the parties may agree to in writing. IIVI,~IIhIUII~IAIIIIIIIIIIYInIW,e-'78~ # • 1.6 Approval and Acceptance of Work. 1.6.1 Copies of all test results corresponding to work which is being inspected and any other information which maybe necessary to establish the satisfactory completion of the work for which inspection is requested must be submitted prior to said inspection. All such information shall be accompanied by a letter from the Developer's engineer verifying the satisfactory completion of the work performed to date. 1.G~.2 Notwithstanding Section 1.3.3 above, promptly after receiving a request for inspection and the"required documentation, the County Engineer shall review the information presented and, if necessary, make an on-site inspection of the work completed. 1.6.3 All said work shall be done to the reasonable satisfaction of the County Engineer and/or the County Department of Community Development, and shall not be deemed complete until approved and accepted as complete by the County. 1.7 Estimated Costs of Subdivision Improvements. At the time of executing this Agreement Developer is negotiating a contract with a suitable contractor for the performance of the Subdivision Improvements. It is agreed between County and Developer that Developer shall enter into such a contract within sixty (60) days of the date of this Agreement and shall provide the contract to County. The contract between Developer and contractor for performance of the Subdivision Improvements shall include a cost estimate or statement of costs for the successful completion of the Subdivision Improvements which shall be approved by the County Engineer in her sole discretion. Once approved such contract shall be attached to this Agreement in the form of an amendment as Exhibit A. Further, Developer agrees to obtain a performance bond from the contractor to secure the successful performance of the contract. In the event the Developer fails to provide a contract incorporating an acceptable cost estimate within 60 days, County shall have all legal and equitable remedies available to it including but not limited to injunctive relief, specific performance and the ability to withhold building permits associated with Phase II and III. 1.8 Common Park and Recreation Areas. Developer agrees to abide by the Landscape Plan previously approved by the Berry Creek Design Review Committee and further agrees to submit any additional information or plans as required by such Design Review Committee. 2. SECURITY and COLLATERAL. 2.1 Warran .Within thirty (30) days after Developer has completed all of the work required by this Agreement and the work has been approved and accepted by the County for purposes of the two year warranty period, the Developer shall arrange to post security in an amount equal to ten percent (10%) of the contract price (which shall be attached hereto as Exhibit A within sixty days of execution of this Agreement as more fully set forth in paragraph 1.7 above), and it is agreed that the contract price shall represent the actual costs of construction. Developer shall be responsible for the condition of the Subdivision Improvements for a period of two years after completion; this shall be guaranteed in the form of a letter of credit or ^u,YU~I~IIU~~II~Y~l~uluu~ 854786 • Developer may provide a guarantee bond in an amount and in a form acceptable to the County. The County agrees to consider a maintenance bond as security under this pazagraph, so long as the terms and conditions of such bond aze acceptable to the County. 2.2 Draws. Draws against the security shall only be made as directed by written Resolution of the County, stating that there has been an event of default under this Agreement and that a sum certain is required to remedy the default. Any amount drawn on the security must be applied for the purpose of completing the work required by this Agreement and related expenses and costs. 2_3 Events of Default. The following events shall be deemed "Events of Default," Entitling the County to draw on the security: 2.3.1 If Developer has not corrected or completed the work required by this Agreement during any warranty period, the County may, after ten (10) working days issue a written Notice to Developer to draw upon the security an amount sufficient to complete or correct said work and compensate the County for its reasonable costs and expenses related to said draw. 2.3.2 If the original security presented to the County (or any extension thereof) is due to expire and the work or correction are not yet completed, and Developer has not provided substitute security or the bank's written extension to the original collateral (as it may have been previously extended), the County shall draw on the security according to the provisions set forth in this Section 2. It is Developer's responsibility, with or without notice, to ensure that the security is extended, or that substitute security is provided in a form acceptable to the County, at least ten days prior to its expiration. If security is neither extended nor substitute security provided, in a form acceptable to the County, at least ten days prior to its expiration, the developer shall pay the County an additional $500 (Five hundred dollars) for the additional administrative work required because of the failure to extend or substitute security in a timely manner as required by this agreement. 2.3.3 If the security is substituted, as otherwise provided herein, this Agreement maybe amended or modified in order to set forth specific Events of Default deemed necessary, in the County's sole discretion, commensurate with the type of collateral substituted. 2.4 Costs and Exuenses• Developer agrees to pay any costs and expenses, including but not limited to legal fees, which the County may incur in determining to accept collateral, in drawing upon the security, or in accomplishing an extension of its expiration. 2.5 Materials and Payment Bond. In addition to the Collateral described herein, the Developer shall provide to the County a Materials and Payment Bond to ensure that all contractors, suppliers and materiahnen are paid. III~II~IYI~~I~'I~I~I~IA 854„86a a« • 2.6 Landscape Plan Collateral. 2.6.1 In addition to collateral requirements set forth herein as the landscape improvements are completed, the County Engineer shall inspect them, and upon approval and acceptance, shall require the Developer to post ten percent (10%) of the cost of such landscape improvements until the improvements have been maintained in a satisfactory condition for two years. 3. INSURANCE and INDEMNIFICATION. 3.1 Indemnification. Developer shall indemnify and hold the County harmless from any and all claims made against the County by any contractor, subcontractor, materiahnen, employee, independent contractor, agent or representative involved in the work necessary to comply with this Agreement, or on account of any other claims against the County because of the activities conducted in furtherance of the terms of this Agreement. This indemnification and hold harmless provision shall include any legal expenses or costs incurred by the County. 3.2 Certificates of Insurance. The Developer shall secure from any contractor or subcontractor engaged in the work necessary to comply with this Agreement a Certificate of Insurance providing for liability protection in the minimum amount of $150,000 per individual and $600,000 per occurrence, naming the County as an additionally named insured. The Developer, if it serves as the contractor for the Subdivision Improvements, shall provide insurance in the same form and amounts as required of the general contractor. Said limits shall be adjusted to comply with any changed limits in the Colorado Governmental Immunity Act, Title 24, Article 10, Colorado Revised Statutes: 3.3 County Incurs No Liability. The County shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the Subdivision and/or Subdivision Improvements specified in this Agreement prior to the completion and acceptance of the same; nor shall the County, nor any officer or employee thereof, be liable for any persons or property injured or damaged by reasons of the nature of said work on the Subdivision Improvements, but all of said liabilities shall be and are hereby assumed by the Developer. The Developer hereby agrees to indemnify and hold harmless the County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which the County or any of its officers, agents, or employees may become subject to, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any performance by the Developer hereunder; and the Developer shall reimburse the County for any and all legal and other expenses incurred by the County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity provision shall be in addition to any other liability which the Developer may have. iirwiiiii~riiiiirruiuir~iuiwiiii~i~ ss8~~,.. ~~ s • 4. GENERAL PROVISIONS. The following shall apply to all Subdivision Improvements, including on-site improvements, set forth in this Agreement: 4.1 Compliance with Land Use Regulations. The Developer shall be required to obtain all necessary permits and comply with the provisions of the Land Use Regulations, including but not limited to the Regulations for Construction within the Public Ways of Eagle County (Chapter V), as the same aze in effect at the time of commencement of construction of the Subdivision Improvements referred to herein. 4.2 Subdivision Improvement Agreement Controls. In the event of any inconsistency or incongruity between the provisions of this Agreement and the Land Use Regulations, the provisions of this Agreement shall in all respects govern and control. 4.3 Warranties and Guazantees. There shall be atwo-yeaz correction period, or such longer period as may be prescribed by law, from the time of completion of the Subdivision Improvements during which time the Developer shall promptly correct or remove and replace, in accordance with the County's written instructions, defective work or materials and consequences thereof. Repair or replacement made under the two-year correction period shall beaz an additional one-yeaz correction period from the acceptance of the repair or the replacement by the Eagle County Engineer. The work shall be collateralized during the correction period in an amount and type of collateral as shall be reasonably determined by the County. The work shall be inspected, at the request of the Developer, no less than sixty (60) days prior to expiration of the one-yeaz additional correction period, and any deficiencies shall be noted to the Developer. 4.4 Approval of Final Plat. The County agrees to the approval of the final plat of this Subdivision, subject to the terms and conditions of this Agreement. 4.5 Final Plat Amendments. Where field changes or other circumstances have caused the road, utilities, or other subdivision improvements to be constructed in locations different from those shown on the approved plans, the locations ofrights-of--way, easements, lot lines, building envelopes, setback lines, or other attributes shown on the Final Plat shall be amended as necessary to comply with Final Plat requirements of the Eagle County Land Use Regulations 4.6 Amendment and Modification. The parties hereto mutually agree that this Agreement maybe amended or modified from time to time, provided that such amendment or modification be in writing and signed by all parties hereto. 4.7 Assignability. This Agreement shall be enforceable against the Developer, provided, however, that in the event the Developer sells, transfers or assigns all or part of the subject Subdivision, the obligations of the Developer under this Agreement as to that portion of the subject Subdivision maybe assumed in writing by the purchaser of the pazcel, and the Developer shall have no further obligations hereunder. It is agreed, however, that no such assumption of INIIIIAIIIwII~IIIIIIIIIIIwNIIIIIIIIIRIII 854?~~; ~. • • these obligations shall be effective unless the County gives its prior written approval to such assumption following an investigation of the financial condition of the purchaser. The Developer shall not otherwise assign, transfer, convey, pledge or otherwise dispose of this Agreement without prior written consent of the County, which consent shall not be unreasonably withheld. 4.8 Binding upon Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto,. their respective successors, and assigns. 4.9 Sole Responsibility of Developer Prior to County Acceptance. It is further agreed and understood that at all times prior to the completion and acceptance of the on-site Subdivision Improvements set forth herein by the County, each of said improvements not accepted as complete shall be under the sole responsibility and charge of the Developer. When it is necessary to allow the general public to utilize the roadways under construction by the Developer traffic control and warning devices shall be placed upon such roadways by the Developer in accordance with the Manual on Uniform Traffic Control Devices for Streets and Highways as prepared by the U.S. Department of Transportation, Federal Highway Administration 4.10 No Rights to Third Parties. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right to claim damages or to bring any lawsuit, action or other proceedings against either the County or its officers, employees or agents because of any breach hereof or because of any terms, covenants, agreements or conditions contained herein. 4.11 Notice. Notice required pursuant to the terms of this Agreement shall be deemed given on the day that the same is placed in the United States Mails, postage prepaid, certified or registered mail, return receipt requested. 4.12 Enforcement and Attorney Fees. The County may enforce the provisions of this Agreement in the same manner and with the same remedies applicable to the enforcement of land use regulations pursuant to the Eagle County Land Use Regulations, as they maybe amended from time to time, or as otherwise provided bylaw. Alternatively, the terms of this Agreement maybe enforceable by the Board or its designee by any appropriate equitable or legal action, including but not limited to specific performance, mandamus, abatement, or injunction. The remedies explicitly provided herein are cumulative, and not exclusive, of all other remedies provided by law. The prevailing party in any action brought pertaining to this Agreement shall be entitled to an award of costs and reasonable attorney's fees. ;_ ~ 854?86 Page: 9 of 10 ~ 10/23/2003 03:34P Teak J Simonton Eagle, CO 89 R 0.00 D 0.00 COUNTY OF EAGLE, STATE OF COLORADO, IlV,WITNESS WHERE~JF the parties hereto have executed this Agreement this ~;-~`~ day of ~%~1~~"~.7E'-~'~ 2003. COUNTY: ATTEST: STATE OF ~ ~ ) ~~ ) ss: County of ) By and Through Its BOARD OF COUNTY COMMISSIONERS By: Michael L. Gallagher, Ch Address for giving notice: P.O. Box 850 Eagle, CO 81631 (970) 328-8685 DEVELOPER: LESSOR: BERRY CREEK LIlVIITED LIABILITY COMP By. ~~` Its: -~.~-~~---.~-F --~, _ Address for giving tice 401 Paseo Del Peralta Santa Fe, New Mexico 87501 (505)820-1818 T,rhe fore~ing was acknowledged before me this ~~/~ day of by C~~ii~~-.,~J„~~ , as ~ of Berry Creek, LLC, a Colorado Company. rr WITNESS my hand and official seal. My commission expires ~ - ~~~ Z' ~ /C :~ JANICE K. n SCOFIELD , ~'• ; o®~ ..... IIYIIII~IIIRIIIVVBIIIINIRlI~IIIAI 85v ~86,.~ County Commissioners