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HomeMy WebLinkAboutC04-272 Warner Developments Inc. SUBDIVISION AND OFF-SITE IMPROVEMENTS AGREEMENT McCoy Springs at Arrowhead File No. PDF-00084 THIS SUBDIVISION AND OFF-SITE Il~r1 PROVEMENTS AGREEMENT ("Agreement") made and entered into this ,/~ day of ''~ 2004, by and between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners (hereinafter "County") and Warner Developments, Inc., a Colorado corporation, whose address is P.O. Box 958, Avon, Colorado 81620 (hereinafter "Subdivider"). WITNESSETH WHEREAS, the Subdivider, as a condition of approval of the Final Plat of McCoy Springs at Arrowhead subdivision (hereinafter referred to as "Subdivision"), desires an Agreement as provided far 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 the same authority and as a condition of approval of the final plat of this Subdivision, the Subdivider is obligated to provide security or collateral sufficient in the judgment of the County to make reasonable provisions for completion of certain public improvements hereinafter described ("Subdivision Improvements"); and WHEREAS, pursuant to Chapter II, Section 4-620.9 of the Land Use Regulations and C.R.S. 43-2-147, the Subdivider shall provide access for all lots and parcels it creates to the state highway system in conformance with the State Highway Access Code. 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. SUBDNISION IMPROVEMENTS. 1.1 Subdivision Improvements. Subdivision Improvements are deemed to include all public improvements, including but not limited to off-site improvements as set forth in all documents, construction drawings, designs, maps, specifications, sketches, cost estimates, and other materials submitted by the Subdivider prior to or at final plat approval and acceptance by the County. Such Subdivision Improvements shall include roads, utilities and other similar public improvements as specified by the County Engineer. 1.2 She of Work. The Subdivider hereby agrees, at its sole cost and expense, to furnish all necessary equipment and material, and to complete all Subdivision Improvements as referenced in the attached Exhibit "A", and as set forth in all documents, construction drawings, designs, maps, specifications, sketches, and other materials submitted by the Subdivider prior to ~. or at final plat approval and accepted by the County, and in accordance with all laws of the United States of America, State of Colorado, County of Eagie, and their respective agencies and affected governmental entities. Such performance shall include acquisition of all necessary rights-of--way. 1.3 Duties of Subdivider. 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 Subdivider shall retain an 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 Highways 2001 Field Materials Manual as a guide for frequency of sampling and testing. 1.3.1 Construction Stakin .Where applicable and byway of example only, the following is a highlighting of the construction staking that will be required of the Subdivider: 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 -horizontal and vertical control every 100 feet, or every 50 feet in critical areas. 1.3.2 Tem. Where applicable and by way of example only, the following is a highlighting of the acceptance testing that will be required of the Subdivider: a. Utili and drainage culvert trench backfill under roadwa risms -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. Embanianents 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- rade -one density test per 250 lineal 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. 3~ 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 minimum of one set of tests per day. 1.3.3 Notification/Road Construction. Subdivider 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: 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 period or as shortly thereafter as reasonably possible 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 Subdivider outlined elsewhere in this Agreement. The Subdivider shall provide the proof rolling by arranging for a loaded single unit truck carrying 18,000 pounds per rear axle. I.3.4 Witnessing of Water and Sewer Laterals. It is essential that the ends of these laterals be witnessed by the Subdivider's engineer to a minimum of three divergent points and a permanent record made of the same. Copies of these records are required to be furnished 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 Subdivider or its engineer. 1.3.6 As-Built DraW1nQS of Subdivision Improvements. As-Built drawings, sealed, signed and dated by a Registered Professional Engineer 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 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 Hi hways Access Code. Subdivider 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 December 31, 2005. 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 Subdivider's engineer verifying the satisfactory completion of the work performed to date. 1.6.2 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. I.6.3 AlI 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. The estimated cost of the Subdivision Improvements is the sum of $ 2,057,774.32, as summarized in Exhibit "A". To secure and guarantee performance of its obligations as set forth in this Section 1, including the completion of the required Off-site Improvements, the Subdivider hereby agrees to provide security and collateral in the form and as set forth in Section 2, below. 1.8 Common Park and Recreation Areas. Subdivider agrees to submit a Common Open Space, Park and Recreation Area Plan to be approved by the County Department of Community Development prior to approval of final plat. 1.9 Landscape Guarantee. Subdivider agrees to submit a landscaping plan, prior to approval of final plat, for the subdivision which will comply with Section 4-240, Installation and Maintenance Requirements. The Subdivider agrees to abide by the Landscape Plan approved by the County Department of Community Development. 2. SECURITY and COLLATERAL. 2.1 Collateral. Security and Collateral required in Section 1.7 herein, as security for the performance by Subdivider of its obligations under this Agreement, shall be in the total amount of $ 2,057,774.32. The Subdivider shall obtain collateral in the form of a LETTER OF CREDIT prior to signing of the final plat, and attached hereto as Exhibit "B". 2.2 Partial Release of Collateral. 'Subdivider may apply to the County for the release of portions of the Collateral based upon work completed in accordance with this Agreement. To make such releases, Subdivider shall request the County Engineer to inspect the work in order to verify satisfactory completion in accordance with plans and specifications in accordance with Section 1.6. 2.3 Final Release of CollateraUWarranty. Within thirty (30} days after Subdivider has completed all of the work required by this Agreement and the work has been approved and accepted by the County, the entire remaining amount of the Collateral, less an amount equal to ten percent (10%) of the original Collateral, shall be released. Subdivider shall be responsible for the condition of the Subdivision Improvements for a period of two years after completion; this shall be guaranteed either through the retention of Collateral, as set forth above, or Subdivider may provide a substitute form of Collateral as set forth in Section 2.4 hereunder. 2.4 Substitution of Collateral. The Subdivider may at any time substitute the Collateral originally deposited with the County herein, for another form of collateral acceptable to the County, to guarantee the faithful completion of the Subdivision Improvements referred to herein and the performance of the terms of this Agreement. At the time of substitution of collateral, an inflationary and/or deflationary factor based upon the Denver-Boulder, Colorado Consumer Price Index for All Urban Consumers, All Items (1967=100) published by the U.S. Bureau of Labor Statistics, 303-837-2467, or, alternatively, an approved construction cost index, shall be used to determine an adjusted estimated cost for all Subdivision Improvements as described herein, and collateral shall be submitted by the Subdivider in accordance therewith. 2.5 Draws. Draws against the Collateral 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 Collateral must be applied for the purpose of completing the work required by this Agreement and related expenses and costs. 2.6 Events of Default. The following events shall be deemed "Events of Default," entitling the County to draw on the Collateral: 2.6.1 If Subdivider has not completed the work required by this Agreement within thirty (30) days prior to the Date of Completion set forth herein, the County may, after ten (10) working days written Notice to Subdivider, draw upon the Collateral an amount sufficient to complete said work and compensate the County for its reasonable costs and expenses related to said draw. 2.6.2 If the original collateral presented to the County (or any extension thereof) is due to expire and the work is not yet completed, and Subdivider has not provided substitute collateral or the bank's written extension to the original collateral (as it may have been previously extended), the County shall draw on the Collateral according to the provisions set forth in this Section 2. It is Subdivider's responsibility, with or without notice, to ensure that the Collateral is extended, or that substitute collateral is provided in a form acceptable to the County, at least ten days prior to its expiration. If Collateral is neither extended nor substitute collateral 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 collateral in a timely manner as required by this agreement. 2.6.3 If the Collateral 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. 2.7 Costs and Expenses. Subdivider 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 Collateral, or in accomplishing an extension of its expiration. 2.8 Landscape Plan Collateral. 2.8.1 Subdivider agrees to provide collateral in a form acceptable to the County Attorney to ensure landscaping will be installed. Subdivider agrees to provide collateral for no less than one hundred and twenty-five (125) percent of the estimated cost of the landscaping improvements listed in the Landscape Plan. 2.8.2 As portions of the landscape improvements are completed, the Community Development Director shall inspect them, and upon approval and acceptance, shall authorize the release of the agreed estimated cost for that portion of the improvements, except that the (10) percent shall be withheld until all proposed improvements are completed and approved, and an additional twenty-five (25) percent shall be retained until the improvements have been maintained in a satisfactory condition for two (2) years. 3. INSURANCE and INDEMNIFICATION. 3.1 Indemnification. Subdivider shall indemnify and hold the County harmless from any and ail claims made against the County by any contractor, subcontractor, materialmen, 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 Subdivider 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 Subdivider, 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 Subdivider. The Subdivider 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 aze based upon any performance by the Subdivider hereunder; and the Subdivider 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 Subdivider may have. 4. GENERAL PROVISIONS. The following shall apply to all Subdivision Improvements, including off-site improvements, set forth in this Agreement: 4.1 Compliance with Land Use Re lations. The Subdivider 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 are 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 Guarantees. There shall be a two-year correction period from the time of completion of the Subdivision Improvements during which time the Subdivider 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 bear an additional one-year 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 Subdivider, no less than sixty (60) days prior to expiration of the one-yeaz additional correction period, and any deficiencies shall be noted to the Subdivider. 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. 7 4.7 Assi ability. This Agreement shall be enforceable against the Subdivider, provided, however, that in the event the Subdivider sells, transfers or assigns all or part of the subject Subdivision, the obligations of the Subdivider under this Agreement as to that portion of the subject Subdivision maybe assumed in writing by the purchaser of the parcel, and the Subdivider shall have no further obligations hereunder. It is agreed, however, that no such assumption of 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 Subdivider 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 Subdivider Prior to County Acceptance. It is further agreed and understood that at all times prior to the completion and acceptance of the 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 Subdivider. When it is necessary to allow the general public to utilize the roadways under construction by the Subdivider, traffic control and warning devices shall be placed upon such roadways by the Subdivider in accordance with the Manual on Uniform Traffic Control Devices for Streets and Highways as prepazed by the U.S. Department of Transportation, Federal Highway Administration. 4.10 No Rishts 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. 4.1 I 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 may be enforceable by the Boazd 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: w~~ ARD OF LINTY COMMISSIONERS ~ ~ ~ ~ ~~. ' ~ • Teak J. Simonton, * ~ ~ ~` -~ Tom C. Stone, ° ° Clerk to the Board of ~c~P' Chairman County Commissioners Address for giving notice: P.O. Box 850 Eagle, CO 81631 Phone: (970) 328-8685 WARNER DEVELOPMENTS, INC. By: Address for ing notice: Warner Developments, Inc. P.O. Box 958 Avon, CO 81620 Phone: (970) 949-4360 and PJA Land Planning (Agent for Subdivider) Attn: Rick Pylman P.O. Drawer 4727 Vail, CO 81658 Phone: (970) 949-8102 STATE OF COLORADO ) ss County of ~~~~'~ ) e foregoing was acknowl ~ ' ed ed before me this ~ ~1~ day of ~h1u, u t , 2004, ~ by r as ~! eS~~c ~ of ~~n,~,~ ~ve~os. ~n~ . WITNESS my hand and offi cial seal. My commission expires ~~~ ~Q.\L O KE~~ y Notary Pu is T'4 ~~' . ~~ '91- . G ~~-9j~ o B 1 ~`OPQ~ F CO 9 ~••q s • ALPINE McCoy Springs at Arrowhead ~ _-_- --__ OPINION OF PROBABLE COSTS ~_ ~ _== _- --_- t __ -__ June 23, 2004 - i*„~; ~ P.1rt-••~0 ENGINEEROVG INC ~ ~;', SCHEDULE A ., 1 Mobilization ~ ~`' ~ .'~ 2 Traffic Control LS ! $65,000.0 565,000.0 3 Construction Fence - LS I $] ],000. LS S11,000.O SUBTOTAL 1 $9,000.00 59,000.0 ROADS 1 Topsoil Remove CY ~ 2 Topsoil Disposal 4,050 S5. 520,250.0 3 Topsoil Replace CY 3,760 $15.0 C}' 3,056 556,400.0 4 Excavation $5• 515,280.0 s Embankment ~' 23,100 53.0 ~ $69,300. 6 Final Grade ~' 19,310 S5. SF 225,000 596.550. 7 Boulder Walls 50.1 S22,500. 8 Soil Nail Walls SF 956 525. 523,900.0 9 MSE Walls SF 7,985 54,4 SF 3511 5351,340.0 10 Rock Veneer (Visible walls and headwalls) 524. 584264 0 11 Guardrail SF 11,696 524. ' LF 405 $280,704.0 12 Guardrail End Anchors S165. 566,825.0 13 2.5' Concrete Curb and Gutter EA 5 51,210. LF 682 56,050.0 14 2' Concrete Pan 520.0 513,640.0 1 s Class 6 ABC (10" depth) LF 1,026 515. • 515,390.0 16 Asphalt (3" thick). TON 1,347 522. TON 427 529,634. 17 Road Cut ~5• 527,755. ! 7 4' Concrete Sidewalk EA 3 56,000 0 LF 515 518,000. I S Regulatory Signs 525• $12,875. 19 Streetlight ~ 2 ~ 5530. 51,060. SUBTOTAL 2 53,300. •~ 600 WATER 1 8" DIP and Fittings LF 2 Fire Hydrant Assembly 408 569- 528, 152. 3 Water Service Lines (1_1/2» dia. Type K Co r EA 2 53,500• PPe) LF 57,000. 4 Water Service Lines (4" dia. DIP) 540 $35 518,900 5 Irrigation Meter Pit LF 90 5100 EA 1 $9,000.0 6 Irrigation Line 53,000. 53,000.0 SUBTOTAL LF 500 SIO. 55,000.0 TbTat SCHEDULE q. ~ _ $4 37'4 365.0 _ SCHEDULE B SLOPE PROTECTION AND EROSION CONTROL i Stabilized Construction Entrance EA 2 Silt Fence 3 $1,(}00.0 $3,000.0 3 Straw $ale Check Dam LF 1300 $2 EA 12 $2,600.0 4 Erosion Control Matting (LandLok 450) $30.00 $360.0 5 Rip-Rap Ditch (outlet protection) SF 7825 $1.50 I SF 2897 $11,737.5 6 Revegetation $6.00 $17 382 0 SUBTOTAL Ac ' $2,sao.oo $IZ,soo.o $4~~57'~SD ` ~ DRAINAGE ' ~ 1 Curb Inlet 2 Valley hdet 3 18" CMP 4 42"x29" CMP Pipe Arch ~ 57" x 38" CMP Pipe Arch 6 42" x 29' CMP Bend 7 I S" End Sections 8 4' x 4' Concrete Box Culvert 9 6' x 6' Concrete Box Culvert 10 Concrete Headwalls SUBTOTAL SEWER 1 8"PVC 2 8" YelommdC900 3 4" PVC Services 4 2" PVC Pressure Pipe 5 Sewer Video 6 Energy Dissapator Manhole 7 Anchor Manholc 8 Standard 48" Manhole 9 Sewer Clearwut I Trenching 2 Electric Conduit 4" (i~ 3 Electric Conduit 2" 4 Telephone Conduit 4" S Telephone Conduit 2" 6 Cable TV Conduit 4" 7 Cable TV Conduit 2" 8 3-Phase Elec. Transfon only) 9 UM30R Electric Vault i 10 2" Fiber Optic Conduit 1 I 4" Spare Conduit 12 Excel Energy (gas lane) 13 Utility Handhole __ SUBTOTAL EA 1 $2,300.00 $2,300 EA 3 52,300A0 . $6,900, LF l49 S60.00 $8,940 1 LF 80 $150.00 . $12,000 ( LF 63 $175.00 . $11,025 C EA 1 $500.0 . 5500 0 EA 1 5300. . 5300 0 LF 300 5350. . 5105,000 01 LF 238 5550. , $130,900 0( LS 1 $35,750.0 . $35,750.00 LF 273 545. 512 285 0 LF 126 560. , . 57 560 0 LF 405 522. , . 58 910 0 LF 26 534. , . $884 0 LF 400 54.5 . 51 800 0 ~ 1 54,100. , . $4 100 ~ 1 54,100. , . 54 100 ~ 4 53,000. , . 512 000 , . istall only) LF 1,500 .51: LF 1460 r. LF 1638' ~ S3 ~ ~~ 52 LF 911 53 LF 730 ~, ner Pad, Base and Vault (install LF 911 51. ~ 3 51,000.1 'install only) EA 1 51,000.( LF 1,638 51.E LF 730 52.1 LF 2,080 58.0 ~ 9 5200.0 B; ~ :=.=, A&B Note: to preparing•this Opinion of Probable~~~ Costs, contractor. LS t 518,500.( 'd on some information non„;~~ ~., 1 52,702. 51,569., 516,640.1 Sl.8oo_c a 184,9ti8.IZ 518,500.00 a genera! Alpin¢ Date of Issue: Amount: Number: Expiration Date: APPLICANT BENEFICIARY: PURPOSE: Balk IItREVOCABLE STANDBY LETTER OF CREDIT AUGUST 24, 2004 $1,630,164.72 4750177003 AUGUST 24, 2005 WARNER DEVELOPMENT, INC. BOARD OF COUNTY COMMISSIONERS Avon 10 W. Beaver Creek Boulevard P.O. Box 7330 Avon, Colorado 81620 970-949-3333 Fax970-949-3263 SUBDIVISION DEVELOPMENT AND IMPROVEMENTS To Whom It May Concern: We hereby establish in Beneficiary's favor, at the request and for the benefit of Applicant, our Irrevocable Standby Letter of Credit in an amount not to exceed $1,630,164.72 (U.S. $1,630,164.72). The purpose of this letter is to secure the performance of and the compliance with, the agreement by and between Applicant and Beneficiary, dated AUGUST 19, 2004 and titled "SUBDIVISION AND OFF-SITE IMPROVEMENTS AGREEMENT." Beneficiary shall promptly notify Bank when a default or event of default of said agreement occurs. Your notification shall include any notice or order required to be sent to Applicant pursuant to the agreement. Notice shall be by telephone and in writing to: ALPINE BANK AVON ATTENTION: DREW DODD 10 W. BEAVER CREEK BLVD. AVON, CO 81620 970-949-3333 We hereby agree to honor drafts drawn under and in compliance with the terms of this Letter of Credit if duly presented to a loan officer at 10 W. BEAVER CREEK BLVD., AVON, COLORADO, during normal business hours on or before the expiration date. Partial drawings are permitted. This Letter of Credit is not transferable. The conditions for payment of any draft drawn against this Letter of Credit are as follows: 1. Receipt by Bank of Beneficiary's manually signed statement by an authorized signatory of BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY certifying that Applicant has failed to perform with, or comply in accordance with, the provisions of said agreement by and between Applicant and Beneficiary, and stating the dollar amount of the default. EXHIBIT www,alpinebank.com 1.4 Compliance with Colorado Department of Hi hwavs Access Code. Subdivider 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 December 31, 2005. 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 Subdivider's engineer verifying the satisfactory completion of the work performed to date. 1.6.2 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. The estimated cost of the Subdivision Improvements is the sum of $ 2,057,774.32, as summarized in Exhibit "A". To secure and guarantee performance of its obligations as set forth in this Section 1, including the completion of the required Off-site Improvements, the Subdivider hereby agrees to provide security and collateral in the form and as set forth in Section 2, below. 1.8 Common Park and Recreation Areas. Subdivider agrees to submit a Common Open Space, Park and Recreation Area Plan to be approved by the County Department of Community Development prior to approval of final plat. 1.9 Landscape Guarantee. Subdivider agrees to submit a landscaping plan, prior to approval of final plat, for the subdivision which will comply with Section 4-240, Installation and Maintenance Requirements. The Subdivider agrees to abide by the Landscape Plan approved by the County Department of Community Development. 2. SECURITY and COLLATERAL. 2.1 Collateral. Security and Collateral required in Section 1.7 herein, as security for the performance by Subdivider of its obligations under this Agreement, shall be in the total amount of $ 2,057,774.32. The Subdivider shall obtain collateral in the form of a LETTER OF CREDIT prior to signing of the final plat, and attached hereto as Exhibit "B". 2.2 Partial Release of Collateral. 'Subdivider may apply to the County for the release of portions of the Collateral based upon work completed in accordance with this Agreement. To 4 make such releases, Subdivider shall request the County Engineer to inspect the work in order to verify satisfactory completion in accordance with plans and specifications in accordance with Section 1.6. 2.3 Final Release of CollateraUWarranty. Within thirty (30) days after Subdivider has completed all of the work required by this Agreement and the work has been approved and accepted by the County, the entire remaining amount of the Collateral, less an amount equal to ten percent (10%) of the original Collateral, shall be released. Subdivider shall be responsible for the condition of the Subdivision Improvements for a period of two years after completion; this shall be guaranteed either through the retention of Collateral, as set forth above, or Subdivider may provide a substitute form of Collateral as set forth in Section 2.4 hereunder. 2.4 Substitution of Collateral. The Subdivider may at any time substitute the Collateral originally deposited with the County herein, for another form of collateral acceptable to the County, to guarantee the faithful completion of the Subdivision Improvements referred to herein and the performance of the terms of this Agreement. At the time of substitution of collateral, an inflationary and/or deflationary factor based upon the Denver-Boulder, Colorado Consumer Price Index for All Urban Consumers, All Items (1967=100) published by the U.S. Bureau of Labor Statistics, 303-837-2467, or, alternatively, an approved construction cost index, shall be used to determine an adjusted estimated cost for all Subdivision Improvements as described herein, and collateral shall be submitted by the Subdivider in accordance therewith. 2.5 Draws. Draws against the Collateral 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 Collateral must be applied for the purpose of completing the work required by this Agreement and related expenses and costs. 2.6 Events of Default. The following events shall be deemed "Events of Default," entitling the County to draw on the Collateral: 2.6.1 If Subdivider has not completed the work required by this Agreement within thirty (30) days prior to the Date of Completion set forth herein, the County may, after ten (10) working days written Notice to Subdivider, draw upon the Collateral an amount sufficient to complete said work and compensate the County for its reasonable costs and expenses related to said draw. 2.6.2 If the original collateral presented to the County (or any extension thereof) is due to expire and the work is not yet completed, and Subdivider has not provided substitute collateral or the bank's written extension to the original collateral (as it may have been previously extended}, the County shall draw on the Collateral according to the provisions set forth in this Section 2. It is Subdivider's responsibility, with or without notice, to ensure that the Collateral is extended, or that substitute collateral is provided in a form acceptable to the County, at least ten days prior to its expiration. If Collateral is neither extended nor substitute collateral 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 collateral in a timely manner as required by this agreement. 2.6.3 If the Collateral 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. 2.7 Costs and Expenses. Subdivider 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 Collateral, or in accomplishing an extension of its expiration. 2.8 Landscape Plan Collateral. 2.8.1 Subdivider agrees to provide collateral in a form acceptable to the County Attorney to ensure landscaping will be installed. Subdivider agrees to provide collateral for no less than one hundred and twenty-five (125) percent of the estimated cost of the landscaping improvements listed in the Landscape Plan. 2.8.2 As portions of the landscape improvements are completed, the Community Development Director shall inspect them, and upon approval and acceptance, shall authorize the release of the agreed estimated cost for that portion of the improvements, except that the (10) percent shall be withheld until all proposed improvements are completed and approved, and an additional twenty-five (25) percent shall be retained until the improvements have been maintained in a satisfactory condition for two (2) years. 3. INSURANCE and INDEMNIFICATION. 3.1 Indemnification. Subdivider 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 Subdivider 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 Subdivider, 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 Iiable 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 6 by the Subdivider. The Subdivider 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 Subdivider hereunder; and the Subdivider 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 Subdivider may have. 4. GENERAL PROVISIONS. The following shall apply to all Subdivision Improvements, including off-site improvements, set forth in this Agreement: 4.1 Compliance with Land Use Re lations. The Subdivider 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 are in effect at the time of commencement of construction of the Subdivision Improvements referred to herein. 4.2 Subdivision Improvement A~'eement 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 Guarantees. There shall be a two-year correction period from the time of completion of the Subdivision Improvements during which time the Subdivider 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 bear an additional one-year con: ection 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 Subdivider, no less than sixty (60) days prior to expiration of the one-year additional correction period, and any deficiencies shall be noted to the Subdivider. 4.4 Anuroval 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 Assi ability. This Agreement shall be enforceable against the Subdivider, provided, however, that in the event the Subdivider sells, transfers or assigns all or part of the subject Subdivision, the obligations of the Subdivider under this Agreement as to that portion of the subject Subdivision maybe assumed in writing by the purchaser of the parcel, and the Subdivider shall have no further obligations hereunder. It is agreed, however, that no such assumption of 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 Subdivider 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 Bindin u on 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 Subdivider Prior to County Acceptance. It is further agreed and understood that at all times prior to the completion and acceptance of the Subdivision Improvements set forth herein by the County, each of said improvements not accepted as complete shall be under the sole responsibility and chazge of the Subdivider. When it is necessary to allow the general public to utilize the roadways under construction by the Subdivider, traffic control and wanting devices shall be placed upon such roadways by the Subdivider 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 teens, 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 Attorne, 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: Teak J. Simonton, Clerk to the Board of County Commissioners ~~~~ ARD OF UNTY COMMISSIONERS °":~ * ~ ° ~~ Tom C. Stone, °co~P_ ° Chairman Address for giving notice: P.O. Box 850 Eagle, CO 81631 Phone: (970) 328-8685 WARNER DEVELOPMENTS, INC. By: Address for ing notice: Warner Developments, Inc. P.O. Box 958 Avon, CO 81620 Phone: (970) 949-4360 and PJA Land Planning (Agent for Subdivider) Attn: Rick Pyhnan P.O. Drawer 4727 Vail, CO 81658 Phone: (970) 949-8102 STATE OF COLORADO County of ~`~~~ ss T~e foregoing was acknowled ed before me this ~~ day of ~~ i..u ~ 2004, by F- r as ~~~e S,~e ~~ of v~~n~~, ~ ~ye~o ours .fin` WITNESS my hand and official seal. My commission expires C~Q'\~•~ •KF<<1- . ~ ~. Ny~~. V ~ ~~G: Pq~ OF COLCQ Notary ` s si'r~ • e • ALP_ IN_E • ~ ~ McCoy Springs at Arrowhead ~ ~ _-__ _ --_ OPINION OF PROBABLE COSTS ~ June Z3, 2004 '~ s•.~© ENGINEERWG 1NC ..; ~,,; $ P .1.~,. ~~t~c~.~ SCHEDULE A ., 1 Mobilization .t ~ - '~ 2 Traffic Control LS I $65,000,00 LS 1 $65,000.0 3 Construction Fence $11,000. $11,000.0 SUBTOTAL LS I $9,000.0 $9,000.0 ROADS 1 Topsoil Remove CY 2 Topsoil Disposal 4,050 $5. 520,250. 3 Topsoil Replace CY 3'760 $15.0 CY 3,056 $56,400. 4 Excavation $S• $15,280. S Embankment CY 23,100 $3. CY 19,310 ~ $69,300. 6 Final Grade S5• $96,550. 7 Boulder Walls SF 225,000 $0.1 SF 956 $22,500. 8 Soil Nail Walls ~ $25. S23,900.0 9 MSE Walls SF ~ 985 $44. $351,340. 10 Rock Veneer SF 3511 524 (Visible walls and headyvalls) SF 11,696 $84,264.0 11 Guardrail $24• $280,704.0 12 Guardrail End Anchors LF 405 5165. EA 5 $66.825.0 13 2.5' Concrete Cutb and Gutter $1,210• $6,050.0 14 2' Concrete Pan 1'F 682 .520. LF 1,026 $1'3,640.0 15 Class 6 ABC (IO" depth) $I5. . $15,390.0 16 Asphalt (3"thick). TON 1,347 $22. TON 427 $29,634. 17 Road Cut $65. $27,755. l 7 4' Concrete Sidewalk EA 3 $6,000.0 LF 515 $1$000' 18 Regulatory Signs $2S. $12,875. 19 Streetlight ~ 2 • $530. $1,060. SUBTOTAL 2 ~~~• $6,600. WATER 1 8"DIP and Finings 2 Fire Hydrant Asserrebly LF 408 S69. EA 2 $28,152. 3 Water Service Lines (I-I/2" dia Type K Co r $3,500. $7 000 4 Water Service Lines (4" dia. DIP) PPe) LF 540 $35. LF ~ $)8,900.0 5 Irrigation Meter Pit $100. $9,000.0 6 Irrigation Line EA I $3,000. $3,000.0 SUBTOTAL LF 500 ~ $10• $s,ooo.o TbTgL SCHED~ILE ~ ~_ ~ _ $Z 37'4 3f9.0 SCHEDULE B SLOPE PROTECTION AND EROSION CONTROL 1 Stabilized Construction Entrance 2 Silt Fence E`4 3 $1,000.0 LF 1300 $3,000.0 3 Straw Bale Check Dam $2.0 $2,600.0 4 Erosion Control Matting (LandLok 450) EA 12 $30.tl0 SF 7825 $360.0 5 Rip-Rap Ditch (outlet protection) $1.50 $11,737.5 f SF 2897 $6.00 6 Revegetation $17,382.0 SUBTOTAL AC ' $2,soo.oo $12,soo.o $47 57:50 • DRAINAGE • ~ 1 Curb Inlet Z Valley Inlet EA l $2,300.(10 $2,3( 3 18" CMP 52,300.00 $6,90 4 42"x29" CMP Pipe Arch LF 149 $60.00 $8,94 5 57" x 38' CMP Pipe Arch LF 80 $150.00 $ 12,00 6 42" x 29" CMP $end LF 63 5175.00 $11,02; 7 18"End Sections EA 1 $500.0 SSOt 8 4' x 4' Cancrete Box Culvert EA 1 5300' 5300 9 6' x 6' Co®crete Box Culvert LF 300 5350. 5105,000 10 Concrete Headwalls LF 238 $550.0 $130,9010 SUBTOTAL LS 1 S35,750.0 . $35,750_ SEWER 1 8"PVC 2 8" Yelomine/C900 LF 273 545. 512 285 0 3 4" PVC Services LF 126 560. , . 57 560 0 4 2" PVC Piessure Pipe LF 405 522. , . $8 910 0 5 Sewer Video LF 26 534. , . Sgt Ot 6 Ener D' EJ' tssapatorManhole LF ~ 400 ~•5 51,800.0( 7 Anchor Manhole I 54,100. 54 100 CSC 8 Standard 48" Mauehote ~ I S4, ! 00. , . 54 100 00 9 Sewer Cleanout ~ 4 53,000. , . 512 000 suBroTaL ~' 9 sz75. , . 52,47s. SHALLOW UTtLIT1ES I Trenching 2 Electric Conduit 4" (install only) LF I'S~ - 512. SI8,000 3 Electric Conduit 2" LF 1460 S2. . 52 920 0 4 Telephone Conduit 4" LF 1638' S3. , . 54 914 5 Telephone Conduit 2" ~ 730 52.35 , . 52 715 5 6 Cable TV Conduit 4" LF 911 53. , . 52 733 7 Cable TV Conduit 2" LF 730 ~• , . 51 642 5 g 3-Phase Elec. Transformer P ad, Base and Vault (install LF 911 SI.S , . 51,366.5 9 only) ~ UM30R Electric Vault (install only) ~ 3 51,000. 53,000. 10 2" Fiber Optic Conduit EA I 51,000• S1 000 1 I 4" Spare Conduit LF 1'638 51.65 , . 52 702 7 12 Excel Ener gy (gas line) LF 730 52.15 , . 51 569 13 Utility Handhole LF 2,080 ~• , . 516 640 SUBTOTAL ~ 9 ~~• , . 51,800. - - - - ~ - - - _ - - . - j;- . ;%4~5~342.2 70TAL SCNEQUl,E A ~ B _ ,r`?~s'~1'~" .j:aY`; 'M~-- -~-F-; r-.. f, .., ~pti _ ~...... crta. - J p~ Lp ~f "~ r= s,y _,.:. Me. s;,~~rf..._ ,L .. = of Y~i;... z.. -„•~:. -,:.,: ._ >84,96s.12 LANDSCAPING ~ ~~L: -~='-;..o' "Y~ - ,44,:< =i - '~Y~Y~.~:; ~±.`FZ° V , P!N:3t LS •:. ,1 .: ~ S18,SC~0. 518,500.00 .. , 25% Contin enc ,~„ p:. . ~ ~.. - Note: In preparing this Opinion of Probable Costs, AEI relyed on some information provided by a t7eneral contractor. K• Ai in¢ Batik p i Avon 10 W. Beaver Creek Boulevard P.O. Box 7330 Avon, Colorado 81620 970-949-3333 IRREVOCABLE STANDBY LETTER OF CREDIT Fax 970-949-3263 Date of Issue: AUGUST 24, 2004 Amount: $1,630,164.72 Number: 4750177003 Expiration Date: AUGUST 24, 2005 APPLICANT: WARNER DEVELOPMENT, INC. BENEFICIARY: BOARD OF COUNTY COMMISSIONERS PURPOSE: SUBDIVISION DEVELOPMENT AND IMPROVEMENTS To Whom It May Concern: We hereby establish in Beneficiary's favor, at the request and for the benefit of Applicant, our Irrevocable Standby Letter of Credit in an amount not to exceed $1,630,164.72 (LJ. S. $1,630,164.72). The purpose of this letter is to secure the performance of and the compliance with, the agreement by and between Applicant and Beneficiary, dated AUGUST 19, 2004 and titled "SUBDIVISION AND OFF-SITE IMPROVEMENTS AGREEMENT." Beneficiary shall promptly notify Bank when a default or event of default of said agreement occurs. Your notification shall include any notice or order required to be sent to Applicant pursuant to the agreement. Notice shall be by telephone and in writing to: ALPINE BANK AVON ATTENTION: DREW DODD 10 W. BEAVER CREEK BLVD. AVON, CO 81620 970-949-3333 We hereby agree to honor drafts drawn under and in compliance with the terms of this Letter of Credit if duly presented to a loan officer at 10 W. BEAVER CREEK BLVD., AVON, COLORADO, during normal business hours on or before the expiration date. Partial drawings are permitted. This Letter of Credit is not transferable. The conditions for payment of any draft drawn against this Letter of Credit are as follows: 1. Receipt by Bank of Beneficiary's manually signed statement by an authorized signatory of BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY certifying that Applicant has failed to perform with, or comply in accordance with, the provisions of said agreement by and between Applicant and Beneficiary, and stating the dollar amount of the default. www,alpinebank.com EXHIBIT Alpin¢ Ba ®,® 2. Each draft shall be endorsed on the reverse side of this Letter of Credit, and must bear upon its face the clause "Drawn Under Letter of Credit No.4750177003, dated AUGUST 24, 2004, of ALPINE BANK." Each draft must be accompanied by a resolution of the BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY: 1) that there has been a default under the Agreement; 2) that a sum certain is required to remedy the default. This letter of credit shall become effective only upon endorsement of Subdivision and Off-Site Improvements Agreement, File No. PDF-00084, for the McCoy Springs at Arrowhead subdivision contemplated by this Letter of Credit by the appropriate Eagle County Commissioners and any other required parties. Failure by any one county commissioner and any other required parties of said SIA by close of business Tuesday, August 24, 2004 shall render this letter of credit null and void. This Letter of Credit shall be governed by Article V of the Uniform Commercial Code as in effect in the State of Colorado on the date of issue. This Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by any document, instrument or agreement referred to herein, or in which this credit is referred to, or to which this credit relates; and no such reference shall be deemed to incorporate herein by reference any such document, instrument or agreement. ALPIlVE By: www.alpinebank,com Alpin¢ B~{k Date of Issue: Amount: Number: Expiration Date: APPLICANT: BENEFICIARY: PURPOSE: IRREVOCABLE STANDBY LETTER OF CREDIT AUGUST 24, 2004 $1,630,164.72 4750177003 AUGUST 24, 2005 WARNER DEVELOPMENT, INC. BOARD OF COUNTY COMMISSIONERS Avon 10 W. Beaver Creek Boulevard P.O. Box 7330 Avon, Colorado 81620 970-949-3333 Fax970-949-3263 SUBDIVISION DEVELOPMENT AND IMPROVEMENTS To Whom It May Concern: We hereby establish in Beneficiary's favor, at the request and for the benefit of Applicant, our Irrevocable Standby Letter of Credit in an amount not to exceed $1,630,164.72 (iJ.S. $1,630,164.72). The purpose of this letter is to secure the performance of and the compliance with, the agreement by and between Applicant and Beneficiary, dated AUGUST 19, 2004 and titled "SUBDIVISION AND OFF-BYTE IMPROVEMENTS AGREEMENT." Beneficiary shall promptly notify Bank when a default or event of default of said agreement occurs. Your notification shall include any notice or order required to be sent to Applicant pursuant to the agreement. Notice shall be by telephone and in writing to: ALPINE BANK AVON ATTENTION: DREW DODD 10 W. BEAVER CREEK BLVD. AVON, CO 81620 970-949-3333 We hereby agree to honor drafts drawn under and in compliance with the terms of this Letter of Credit if duly presented to a loan officer at 10 W. BEAVER CREEK BLVD., AVON, COLORADO, during normal business hours on or before the expiration date. Partial drawings are permitted. This Letter of Credit is not transferable. The conditions for payment of any draft drawn against this Letter of Credit are as follows: 1. Receipt by Bank of Beneficiary's manually signed statement by an authorized signatory of BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY certifying that Applicant has failed to perform with, or comply in accordance with, the provisions of said agreement by and between Applicant and Beneficiary, and stating the dollar amount of the default. EXHIBIT www.alpinebank.com Alpin¢ Banc 2. Each draft shall be endorsed on the reverse side of this Letter of Credit, and must bear upon its face the clause "Drawn Under Letter of Credit No.4750177003, dated AUGUST 24, 2004, of ALPINE BANK." Each draft must be accompanied by a resolution of the BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY: I) that there has been a default under the Agreement; 2) that a sum certain is required to remedy the default. This letter of credit shall become effective only upon endorsement of Subdivision and Off-Site Improvements Agreement, File No. PDF-00084, for the McCoy Springs at Arrowhead subdivision contemplated by this Letter of Credit by the appropriate Eagle County Commissioners and any other required parties. Failure by any one county commissioner and any other required parties of said SIA by close of business Tuesday, August 24, 2004 shall render this letter of credit null and void. This Letter of Credit shall be governed by Article V of the Uniform Commercial Code as in effect in the State of Colorado on the date of issue. This Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by any document, instrument or agreement referred to herein, or in which this credit is referred to, or to which this credit relates; and no such reference shall be deemed to incorporate herein by reference any such document, instrument or agreement. ALPINE J 1 1 By: DODD, I E RESIDENT www.alpinebank.com COLLATERAL RELEASE SUMMARY McCoy Springs at Arrowhead Auaust_ 2004 DESCRIPTION ORIGINAL COLLATERAL AMOUNT COMPLETED FIRST RELEASE AMOUNT REMAINING SCHEDULE A Mobilization $65,000.00 $65,000.00 $0.00 Traffic Control $11,000.00 $2,200.00 $8,800.00 Construction Fence $9,000.00 $9,000.00 $0.00 Roads To soil Remove $20,250.00 $20,250.00 $0.00 To soil Dis al $56,400.00 $39,480.00 $16,920.00 To soil Re lace $15,280.00 $0.00 $15,280.00 Excavation $69,300.00 $27,711.00 $41,589.00 Embankment $96,550.00 $38,965.00 $57,585.00 Final Grade $22,500.00 $0.00 $22,500.00 Boulder Walls $23,900.00 $0.00 $23,900.00 Soil Nail Walls $351,340.00 $115,723.00 $235,617.00 MSE Walls $84,264.00 $0.00 $84,264.00 Rock Veneer (Visible walls and headwalls $280,704.00 $0.00 $280,704.00 Guardrail $66,825.00 $0.00 $66,825.00 Guardrail End Anchors $6,050.00 $0.00 $6,050.00 2.5' Concrete Curb and Gutter $13,640.00 $0.00 $13,640.00 2' Concrete Pan $15,390.00 $0.00 $15,390.00 Class 6 ABC 10" de th $29,634.00 $0.00 $29,634.00 Asphalt (3" thick $27,755.00 $0.00 $27,755.00 Road Cut $18,000.00 $0.00 $18,000.00 4' Concrete Sidewalk $12,875.00 $0.00 $12,875.00 Re ulato Si ns $1,060.00 $0.00 $1,060.00 Streetli ht $6,600.00 $0.00 $6,600.00 Water 8" DIP and Fittin s $28,152.00 $15,000.00 $13,152.00 Fire H Brant Assembl $7,000.00 $3,500.00 $3,500.00 Water Service Lines 1%' dia. T e K Cop er $18,900.00 $8,250.00 $10,650.00 Water Service Lines 4" dia. DIP) $9,000.00 $0.00 $9,000.00 Irri ation Meter Pit $3,000.00 $3,000.00 $0.00 Irri ation Line $5,000.00 $0.00 $5,000.00 TOTAL SCHEDULE A $1,374,369.00 $348,079.00 $1,026,290.00 SCHEDULE B Slo a Protection and Erosion Control Stabilized Construction Entrance $3,000.00 $1,000.00 $2,000.00 Silt Fence $2,600.00 $2,600.00 $0.00 Straw Bale Check Dam $360.00 $300.00 $60.00 Erosion Control Mattin LandLok450 $11,737.50 $0.00 $11,737.50 Ri Ra Ditch outleet rotection $17,382.00 $0.00 $17,382.00 Rev etation $12,500.00 $0.00 $12,500.00 Draina a $0.00 Curb Inlet $2,300.00 $2,300.00 $0.00 Valle Inlet $6,900.00 $2,300.00 $4,600.00 18" CMP $8,940.00 $4,236.00 $4,704.00 42" x 29" CMP Pi a Arch $12,000.00 $0.00 $12,000.00 57" x 38" CMP Pi a Arch $11,025.00 $11,025.00 $0.00 42" x 29" CMP Bend $500.00 $0.00 $500.00 18" End Sections $300.00 $300.00 $0.00 4' x 4' Concrete Box Culvert $105,000.00 $0.00 $105,000.00 6' x 6' Concrete Box Culvert $130,900.00 $0.00 $130,900.00 Concrete Headwalls $35,750.00 $0.00 $35,750.00 Sewer $0.00 8" PVC $12,285.00 $6,311.00 $5,974.00 8" Yelomine/C900 $7,560.00 $0.00 $7,560.00 McCoy Springs at Arrowhead First Partial Release Page 1 of 2 DESCRIPTION ORIGINAL COLLATERAL AMOUNT COMPLETED FIRST RELEASE AMOUNT REMAINING 4" PVC Services $8,910.00 $4,785.00 $4,125.00 2" PVC Pressure Pie $884.00 $0.00 $884.00 Sewer Video $1,800.00 $0.00 $1,800.00 Ener Dissi ator Manhole $4,100.00 $0.00 $4,100.00 Anchor Manhole $4,100.00 $0.00 $4,100.00 Standard 48" Manhole $12,000.00 $5,500.00 $6,500.00 Sewer Cleanout $2,475.00 $0.00 $2,475.00 Shallow Utilities Trenchin $18,000.00 $0.00 $18,000.00 Electric Conduit 4" install onl $2,920.00 $0.00 $2,920.00 Electric Conduit 2" $4,914.00 $0.00 $4,914.00 Tele hone Conduit 4" $1,715.50 $0.00 $1,715.50 Tele hone Conduit 2" $2,733.00 $0.00 $2,733.00 CableTVConduit4" $1,642.50 $0.00 $1,642.50 Cable TV Conduit 2" $1,366.50 $0.00 $1,366.50 3-Phase Elec. Transformer Pad, Base and Vault install onl $3,000.00 $0.00 $3,000.00 UM30R Electric Vault install ont $1,000.00 $0.00 $1,000.00 2" Fiber O tic Conduit $2,702.70 $0.00 $2,702.70 4"S are Conduit $1,569.50 $0.00 $1,569.50 Excel Ener as line $16,640.00 $0.00 $16,640.00 Utili Handhole $1,800.00 $0.00 $1,800.00 TOTAL SCHEDULE B $475,312.20 $40,657.00 $434,655.20 10% Contin enc on Schedules A and B $184,968.12 $38,873.60 $146,094.52 TOTAL SCHEDULES A AND B $2,034,649.32 $427,609.60 $1,607,039.72 LANDSCAPING $18,500.00 $0.00 $18,500.00 25% Contin enc on Landsca in $4,625.00 $0.00 $4,625.00 TOTAL LANDSCAPING $23,125.00 $0.00 $23,125.00 TOTAL MCCOY SPRINGS AT ARROWHEAD $2,057,774.32 $427,609.60 $1,630,164.72 Schedule A & B Retaina a 10% Landscaping Retaina a 35% Total Im rovements IMPROVEMENTS COMPLETED $427,609.60 $0.00 $427,609.60 RETAINAGE $0.00 $0.00 $0.00 FIRST RELEASE $427,609.60 $0.00 $427,609.60 ORIGINAL COLLATERAL $2,034,649.32 $23,125.00 $2,057,774.32 FIRST RELEASE $427,609.60 $0.00 $427,609.60 REMAINING COLLATERAL $1,607,039.72 $23,125.00 $1,630,164.72 McCoy Springs at Arrowhead First Partial Release Page 2 of 2 MEMORANDUM EAGLE COUNTY ENGINEERING TO: Janice Scofield Eagle County Attorney's Office ~. ~3.~y FROM: Phillip M. Bowman, P.E., Project Engineer Engineering Department DATE: August 23, 2004 RE: PDF-00084, McCoy Springs Subdivision Authorization of the First Release of Collateral for the Subdivision Improvements Agreement for PDF-00084, McCoy Springs Subdivision The McCoy Springs Subdivision Improvements Agreement (SIA) is scheduled for approval by the Board of County Commissioners with File Number PDF-00084 on August 24, 2004. As allowed by the Eagle County Land Use Regulations, a Grading Permit was issued on this site after approval of the Preliminary Plan approval. Therefore, a portion of the public improvements identified in the SIA to be approved have already been completed, and are eligible for a release of collateral. Based on information presented by the developer, a significant portion of the public improvements have been completed. I have inspected the public improvements completed to date that are covered by the SIA for the McCoy Springs Subdivision, PDF- 00084. I recommend a reduction of collateral in the amount of $427,609.60. This will reduce the collateral from $2,OS7,774.32 to $1,630,164.72. The total cost of improvements identified in the SIA is $2,OS7,774.32. Due to the completion of the improvements identified above, the letter of credit attached to the SIA to be executed is reduced as shown. This reduction does NOT start the warranty period. A collateral release summary is attached for this SIA. If you have any questions, please contact me at 328-3560 or by email. # # # cc: Helen Migchelbrink, County Engineer Chrono\F'ile G:~PHILLIP BOWMAN1McCoy Springs~McCoy Collateral Release I.DOC