HomeMy WebLinkAboutC08-216SUBDIVISION AND OFF-SITE IIVIPROVEMENTS
AGREEMENT
WILLITS BEND PLANNED UNIT DEVELOPMENT
PHASE II
File No. PDF-00097
THIS SUBDIVISION AND OFF-SITE IlVIPRO AGREEMENT
("Agreement") made and entered into this ~~-day of 2008, by and between
the COUNTY OF EAGLE, STATE OF COLORADO, a b y co rate and politic, by and
through its Board of County Commissioners (hereinafter "County") and WILLITS BEND
DEVELOPMENT COMPANY (hereinafter "Subdivider").
WITNESSETH
WHEREAS, the Subdivider, as a condition of approval of the Final Plat of Willits Bend
Planned Unit Development Phase II (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 the same authority, 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 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 Subdivider to improve its equitable portion of such road to an acceptably safe
condition; and
WHEREAS, the County has determined that the traffic which will be generated by the
Subdivision, along with other potential subdivisions in the area, will result in safety hazards and
substantially increased maintenance costs relative to the off site roads; and
WHEREAS, the Subdivider has agreed to improve the roads to an acceptably safe
condition and to accommodate the incremental increase in traffic burden to the said roads
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, as a further condition of approval of the final plat of this Subdivision, the
Subdivider is obligated to provide security and collateral sufficient in the judgment of the County
to make reasonable provision for completion of the Subdivision Improvements, including but not
limited to off-site road improvements, referred to herein; 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 pazcels 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. SUBDIVISION IlVIPROVEMENTS
1.1 Subdivision Improvements. Subdivision Improvements aze 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 similaz
public improvements as specified by the County Engineer.
1.2 Scope 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," relating to Phase II of the Subdivision, 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 Eagle, 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 Stakine. Where applicable and by way 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 azeas, specifically including:
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-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 Testing. 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. Utility and drainage culvert trench backfill under roadway prisms -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 bacl~illed 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 250 lineal 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.
£ 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 Bike paths
The County Engineer shall make an on-site visit within the forty-eight (48) hours notif cation
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 Caunty 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 Muck 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 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 shalt 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 Drawings 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.RS., 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 ways 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 shalt be completed prior to
November 1, 2009.
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 may be 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.
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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 and Off-Site Improvements associated with Phase II is $359,916.73, 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 4240, 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 lla rat. 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 $359.916.73. Such security and collateral shall be in the form of a PLAT NOTE in
substantially the following form:
Plat Note:
No lots within a particular Phase of Development of the Willits Bend Planned
Unit Development shall be sold, transferred or otherwise conveyed -nor shall any
grading or building permit be issued by Eagle County -until all of the
improvements required for each such Phase under the Subdivision Improvements
Agreement recorded at Reception No. 200712992 are either (a) in place and
approved by Eagle County, or (b) collateralized in the form as described in the
Subdivision and Off-Site Improvements Agreement and Land Use Regulations
and acceptable to Eagle County to secure the performance of the obligations as
described in the Agreement. This Plat Note may be released, in whole or in part,
only in accordance with the procedures set forth in Eagle County Resolution No.
95-35. Any documentation denoting the release of the Plate Notes in whole or in
part, shall be recorded in the Eagle County Clerk and Recorder's Office. Partial
Plat Note Releases related to particulaz Phases of the Development may be
utilized.
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 for a particulaz Phase of the development
and the work has been approved and accepted by the County, the remaining amount of the
Collateral for such Phase, 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 (2) 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 for each Phase either set forth herein or in
the estimate of cots and description of work submitted for a particular Phase, 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.
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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 (lOklays prior to its expiration. ff Collateral is neither extended nor
substitute collateral provided, in a form acceptable to the County, at least ten (10) 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
may be 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 percent (125%) 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 ten
percent (10%) shall be withheld until all proposed improvements are completed and approved,
and an additional twenty-five percent (25%) 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, material men,
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 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. G~ PROVISIONS
The following shall apply to all Subdivision Improvements, including off-site
improvements, set forth in this Agreement:
4.1 Compliance with Land Use R ations. 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, or such
longer period as may be prescribed by law, 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-year 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 of rights-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 may be 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 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 may be 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 CountXAcceptance. It is further agreed
and understood that at all times prior to the completion and acceptance of the off-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 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 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 parry any right to claim damages or to bring any lawsuit, action
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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 Mail, 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 may be
amended from time to time, or as otherwise provided by law. Alternatively, the terms of this
Agreement may be 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.
ATTEST:
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
BOARD OF COUNTY CONIIVIISSIONERS
By:
Peter F. Runyon
Chairman
Address for giving notice:
P.O. Box 850
Eagle, CO 81631
(970) 328-8685
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Clerk to the Board of
County Commissioners
SUBDIVIDER:
Willits Be d D 1 me Comp , a olorado Corporation
By:
Name: A. Stephen rowley
Title: President
Address for giving notice:
1712 Willits Lane
Carbondale, CO 81623
Agent for Subdivider:
Doug Dotson
P. O. Box 1858
Carbondale, CO 81623
STATE OF COLORADO )
/~ ss.
County of GGLq ~~ )
The foregoing was acknowledged before me this Z(o~ day of 2008,
by .~,abl.eyl ~c~u_~~t,~l as ~Y'~d~lG~~~l~-: of ! 7E.LC~ ,~~~~..~ ~uuGai~~tyc,~
7_ ~.
WITNESS my hand and official seal.
My commission expires _ ~ ' aOl Z~
• ;c~~;
Notary Public
*.
G:1SIA's Willits Bend Phase II
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