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HomeMy WebLinkAboutECHDA14-005 Senior Care Land Company and Town of Eagle Development Agreement DEVELOPMENT IMPROVEMENTS AGREEMENT Castle Peak Senior Care Community, Lot 2, Eagle Ranch, Filing No. 27, Subdivision THIS AGREEMENT is entered into and made effective as of the �3 day of 2014, by and between the TOWN OF EAGLE, COLORADO, a Colorado municipal corporati n, whose address is P.O. Box 609, Eagle, Colorado 81631 (hereinafter referred to as the "Town"); and SENIOR CARE LAND COMPANY, LLC, a Colorado limited liability company, whose address is P.O. Box 850, Eagle, Colorado 81631, (hereinafter referred to as the "Owner"). RECITALS A. WHEREAS, the Owner is the owner of Lot 2, Eagle Ranch, Filing No. 27, Subdivision, Town of Eagle, County of Eagle, State of Colorado (the "Property" or "Development"); and B. WHEREAS, the Owner desires to have the Property developed as a senior care facility that will provide assisted living, memory care, skilled nursing and short-term rehabilitation services and beds for the community and has filed an application for a Major Development Permit pursuant to Chapter 4.06 of the Eagle Municipal Code; and C. WHEREAS, Owner anticipates conveying the Property to Castle Peak Senior Care, LLC which will actually develop and operate the project; and D. WHEREAS, the Town fully supports the Owner and its related entities working with third parties to locate a senior care facility within the Town of Eagle in accordance with approvals granted by the Town; and E. WHEREAS, the Board of Trustees has approved a Development Plan for the Property, subject to conditions, in accordance with Section 4.06.030 of the Eagle Municipal Code; and F. WHEREAS, Owner and the Town acknowledge and agree that the Development and related documents will be subject to comment and approval from both the construction lender and United Stated Department of Agriculture, Rural Development Authority ("RD"); and as a result, Owner and Town agree to work cooperatively to implement construction lender and RD requirements in a form acceptable to all parties; and G. WHEREAS, Section 4.06.010(F) of the Eagle Municipal Code requires a landowner or developer to furnish the Town with a performance guarantee in order to secure the construction and installation of on-site and off-site street improvements, streetscape improvements including curbs, gutters, sidewalks and landscaping, and any other V3RCIean-Castle Peak Senior Care Community 1 May 9,2014 Development Improvements Agreement improvements required by the approved Development Plan as a condition for the issuance of a development permit; and H. WHEREAS, the legislature of the State of Colorado adopted Section 24-68-101, et. seq. of the Colorado Revised Statutes (the "Vested Property Rights Statute") to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, security, reasonable investment-backed expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning. The Vested Property Rights Statute authorizes the Town to enter into development agreements with landowners providing for vesting of certain property rights; and I. WHEREAS, consistent with the Vested Property Rights Statute, Chapter 4.17 of the Eagle Municipal Code (the "Vested Property Rights Regulations") authorizes the Town to enter into development agreements with landowners and other qualified applicants providing for the vesting of property development rights; and J. WHEREAS, a purpose of this Agreement is to assure development of the Property will take place in accordance with the approved Development Plan and is not executed for the benefit of materialmen, laborers, or others providing work, services or material to the Development or for the benefit of occupants of the Property; and K. WHEREAS, development of the Property in accordance with this Agreement will provide for orderly growth in accordance with the policies and goals set forth in the Town's Master Plan, including the Eagle Area Community Plan (2010), ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment-backed expectations of the Owner, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and the Vested Property Rights Regulations were enacted. In exchange for these benefits and the other benefits to the Town contemplated by this Agreement, together with the public benefits served by the facilities to be constructed, Owner desires to receive the assurance that Owner or its successors in interest may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement; and L. WHEREAS, the Town and Owner mutually agree that the matters hereinafter set forth are reasonable conditions and requirements to be imposed by the Town upon the Owner and its successors in connection with the acceptance and favorable action on the Owner's application for a Major Development Permit; the Town recognizing and reciting that such matters are necessary to protect, promote and enhance the public welfare; and M. WHEREAS, the mutual promises, covenants and obligations contained in this V3RCIean-Castle Peak Senior Care Community 2 May 9,2014 Development Improvements Agreement Agreement are authorized by Colorado law and Title 4 of the Eagle Municipal Code. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and the Owner agree as follows: SECTION 1 DEFINITIONS 1.1 APF Regulations. The Town's regulations regarding assurance of adequate public facilities, as set forth in Chapter 4.14 of the Eagle Municipal Code in effect as of the effective date of this Agreement, unless otherwise provided in this Agreement. 1.2 Agreement. This Development Improvements Agreement for Lot 2, Eagle Ranch, Filing No. 27, Subdivision, between Owner and the Town. 1.3 Board of Trustees. The governing body of the Town of Eagle, Colorado. 1.4 Development. The senior care community to be constructed on the Property. 1.5 Development Plan. The Development Plan for the Property required pursuant to Section 4.06.030 of the Eagle Municipal Code which together with this Agreement shall constitute the "site-specific development plan" establishing Vested Property Rights in accordance with the Vested Property Rights Statute and the Vested Property Rights Regulations. 1.6 Owner. Senior Care Land Company, LLC, or its successors and assigns. 1.7 Property. The real property known as Lot 2, Eagle Ranch, Filing No. 27, Subdivision,Town of Eagle, County of Eagle, State of Colorado. 1.8 Town. The Town of Eagle, Colorado, a municipal corporation. 1.9 Uniform, Non-Discriminatory Regulations. Collectively, Town ordinances, rules, regulations, policies and standards, including engineering and design standards, applicable in the same manner to all developments within the Town. 1.10 Vested Property Rights Regulations. Chapter 4.17 of the Eagle Municipal Code. 1.11 Vested Property Rights Statute. Sections 24-68-101, et. seq., C.R.S. SECTION 2 V3RCIean-Castle Peak Senior Care Community 3 May 9,2014 Development Improvements Agreement TERM The term of this Agreement and the vested property rights expressly established under this Agreement shall commence on the effective date of the Town ordinance or resolution approving this Agreement, and shall continue until the third (3rd) anniversary of the effective date of this Agreement. Provided, however, Owner may terminate this Agreement at any time with or without cause upon giving the Town at least thirty (30) days advance written notice of its intent to terminate this Agreement. In the event of such termination by Owner, Owner shall prepare an acknowledgement for signature by Owner and the Town (by its Town Administrator) that the Agreement is null and void and of no force and effect and the same shall be recorded in the real property records of Eagle County. After the expiration of the term, this Agreement may be terminated by the Town and upon such termination shall be of no further force or effect except as to the maintenance of the Development improvements, provided, however, that such termination shall not affect (a) any common law vested rights obtained prior to such termination; (b) any right arising from Town permits, approvals or other entitlements for the Property which were granted or approved prior to, concurrently with, or subsequent to the approval of this Agreement, or (c)the parties rights pursuant to subsection 17.5 below. SECTION 3 SCOPE OF THIS AGREEMENT 3.1 Purpose. This Agreement is intended to set forth the parties' understanding and agreement as to the development of the Property pursuant to Article 68 of Title 24 of the Colorado Revised Statutes and Title 4 of the Eagle Municipal Code; as to the nature of the development proposed for the Property; as to the procedures, limitations and standards applicable to the construction of public and other required on-site and off-site Development improvements to be installed to serve the Property; as to the responsibilities of the parties for various costs, fees and charges; and as to such other matters the parties believe can be adequately addressed at this time. This Agreement is not intended to address those matters which are more appropriately considered at the time of issuance of building permits for the Development, or future subdivision of the Property. 3.2 Town's Rights Reserved. It is not the intention of the parties in any way to diminish or limit the Town's legislative, quasi-judicial, or other non-delegable discretionary powers or to impose on the Town any duty, beyond its ordinances and regulations as they may from time to time exist, nor to impose any special obligation on the Town to approve or accept any future applications, plans, drawings, security documents, improvements, and conveyances, except as otherwise set forth in this Agreement. The Town reserves all rights to review, approve or deny any future Subdivision application for the Property in accordance with State law and the ordinances and policies of the Town then in effect. It is furthermore the express intention of the parties that nothing in this Agreement shall be construed to void the rights and V3RClean-Castle Peak Senior Care Community 4 May 9,2014 Development Improvements Agreement obligations of the parties as set forth herein, to the extent such rights and obligations are consistent with law. The parties expressly agree they will fully perform this Agreement to the extent it is consistent with the law. 3.3 Contingent Obligations of Owner. In the event Owner elects not to construct any buildings on the Property during the term of this Agreement, the Owner shall not be obligated to construct or install the public improvements as set forth in this Agreement. SECTION 4 DEVELOPMENT OF THE PROPERTY 4.1 Nature of Development. The Property is currently zoned Planned Unit Development (PUD) and is intended to be developed as a senior care facility comprised of approximately of 63,447 gross square feet in two (2) connected buildings. The facility will include approximately fourty-four (44) skilled nursing units and twenty (20) assisted living units. 4.2 Compliance with Current Regulations. Owner states that it has reviewed all applicable zoning, subdivision, building and other development regulations and ordinances of the Town currently in effect. Owner agrees to comply with all said regulations and requirements. SECTION 5 ADEQUATE PUBLIC FACILITIES In accordance with Chapter 4.14 of the Eagle Municipal Code, the Town has made a positive Determination of Adequacy concerning the availability of Public Facilities, as said term is defined in Section 4.14.030 of the Eagle-Municipal Code, concurrent with the impacts generated from the Development. Such Determination of Adequacy shall expire three (3)years from the effective date of this Agreement, if the Owner has not commenced construction of the Development. SECTION 6 DEVELOPMENT IMPROVEMENTS AND WARRANTY-GENERAL PROVISIONS 6.1 Construction of Improvements by Owner. All water service lines, water mains and other water distribution facilities and appurtenances necessary to provide treated water service for this Development located within easements and/or rights-of-way owned or to be conveyed to the Town, all wastewater collection service lines and mains and related improvements necessary to provide wastewater service for this Development, any on-site drainage facilities required for the Development, streetscape improvements including street trees and landscaping, a concrete sidewalk, curb and gutter, tree grates, drip irrigation system for street trees, street lights and any other public or required private development V3RClean-Castle Peak Senior Care Community 5 May 9,2014 Development Improvements Agreement improvements, as shown in the Development Plan and Exhibit "A", attached hereto and incorporated herein by this reference, this Agreement; and any other improvements required by Uniform, Non-Discriminatory Regulations contained within the Eagle Municipal Code shall be installed and completed at the sole cost and expense of the Owner or its successors and assigns, unless otherwise provided in this Agreement. The public and other required on-site and off-site Development improvements to be constructed by the Owner or its successors and assigns, shall be designed and built in conformance with all Uniform Non-Discriminatory Regulations and requirements contained within, or promulgated pursuant to, Title 4 of the Eagle Municipal Code in effect as of the effective date of this Agreement. All such public and required Development improvements shall be designed and approved by a registered professional engineer retained by the Owner. All drawings and plans for such improvements shall be stamped by a registered engineer. Notwithstanding anything to the contrary herein, the parties have identified those Development Improvements that are subject to the performance guarantee and warranty requirements of this Agreement as set forth in Exhibit C which is attached hereto and incorporated herein by reference. 6.2 Schedule of Improvements to be Constructed by Owner. Final Cost Estimates prepared by Owner's engineer shall be submitted to the Town Engineer for review and approval at least thirty (30) days prior to the issuance of the Major Development Permit. In addition, prior to commencing work on the Property, the Owner shall also submit to the Town for its review and approval a Final Set of Construction Drawings showing in detail the required on-site and off-site public and private improvements, excluding buildings, required for the Development that it shall be responsible for constructing. The Town Engineer shall review said Final Set of Construction Drawings and Final Cost Estimate, and upon approval, such documents shall be recorded as an addendum to this Agreement. Unless otherwise authorized by the Town Administrator, no work shall be commenced on the Property by the Owner until such time as the performance guarantee pursuant to Section 9 of this Agreement has been furnished to the Town. 6.3 Warranty by Owner. The Owner, or its successor and assigns, shall warrant any and all on-site and off-site public improvements constructed by Owner which are conveyed or dedicated to the Town pursuant to this Agreement, or the Development Plan, for a period of twenty-four (24) months from the date the Town's Engineer certifies that the same conform with the approved specifications. Specifically, but not by way of limitation, the Owner shall warrant the following: (a) That the title conveyed shall be good and its transfer rightful; and (b) Any and all facilities conveyed shall be free from any security interest or other lien or encumbrance; and V3RCIean-Castle Peak Senior Care Community 6 May 9,2014 Development Improvements Agreement (c) Any and all facilities so conveyed shall be free of any and all defects in materials or workmanship. (Owner shall not be responsible for damage to improvements due to circumstances not including defects in materials or workmanship). 6.4 Town Inspections. The Town shall have the right to make engineering inspections and require testing during construction of the required public and private Development improvements in such reasonable intervals and upon reasonable notice as the Town Engineer may request in accordance with the Town's Street Construction Regulations, Water Distribution Regulations, and Wastewater Regulations, or as otherwise determined by the Town Engineer. Inspection, acquiescence and approval of any engineering inspector of the construction of physical facilities, at any particular time, shall not constitute the approval by the Town of any phase of the construction of such public and other required Development improvements. Such approvals shall be made by the Town only after completion of construction and in the manner hereinafter set forth. 6.5 Approval by Town Engineer. Upon full completion of construction by the Owner of such on-site and off-site public and required private Development improvements, the Owner shall submit to the Town Engineer a written request for an inspection and the preparation of a Final Acceptance Punch List. Upon receipt of such request, the Town Engineer shall inspect the improvements and prepare a written Final Acceptance Punch List which shall be provided to the Owner within fifteen (15) days of receipt of said written request from the Owner. Within ninety (90) days from receipt of the Final Acceptance Punch List, the Owner shall make all corrections necessary to bring the system or improvements in to conformity with applicable Town standards and all plans, as approved. In the event the Owner fails to complete the Final Acceptance Punch List work within said ninety (90) day period, the Town shall proceed to exercise its remedies pursuant to Section 9 of this Agreement. Upon completing the Final Acceptance Punch List work, the Owner shall submit to the Town Engineer a written request for final acceptance. The Town Engineer shall then inspect said improvements and issue a written determination as to whether the Final Acceptance Punch List work has been satisfactorily completed within fifteen (15) days of the Owner's request. If the Town Engineer determines that the Final Acceptance Punch List work has not been satisfactorily completed, the Town Engineer shall issue a revised written Final Acceptance Punch List to the Owner. Upon a determination by the Town Engineer that the Final Acceptance Punch List work has been completed in a satisfactory manner, the Town Engineer shall prepare a bill of sale for the public improvements to be conveyed to the Town for consideration by the Town Administrator. The Town Administrator shall issue a written acceptance of the bill of sale within thirty (30) days of the determination that the work is complete. The warranty period set forth in subsection 6.3 above shall commence upon the date of approval of the bill of sale. The Town shall be under no obligation to provide any water service or wastewater collection service until all on-site water and wastewater lines have been V3RClean-Castle Peak Senior Care Community 7 May 9,2014 Development Improvements Agreement installed and are brought into conformance with the applicable plans and specifications approved by the Town Engineer. 6.6 Provision of "As-built" Drawings. The Owner shall provide all necessary engineering designs, surveys, field surveys, and "as-built" drawings for all on-site and off-site public improvements and utility improvements constructed by Owner which shall be approved by the Town Engineer. The "as-built" locations of all utility service lines shall be prepared by a registered land surveyor at the Owner's sole expense. Owner shall use good faith efforts to submit such "as-built" drawings for the Development prior to the issuance of a Temporary Certificate of Occupancy for any building or structure within the Development. No Certificate of Occupancy for any building or structure within the Development shall be issued until the required "as-built" drawings have been submitted to the Town. In addition, all expenses incurred for this Property by the Town in updating the Town's base maps shall be paid by the Owner to the Town. Owner shall submit both hard copy and electronic files of the "as-built" drawings. The format of the electronic files shall be AutoCad 2004 or latest edition thereof. 6.7 Conveyance of Public Improvements. All on-site and off-site public improvements constructed by Owner in accordance with this Agreement, including streetscape improvements, street paving and drip irrigation system improvements, shall be dedicated to the Town and warranted for a period of twenty-four (24) months following completion and approval, as provided in subsection 6.3 above. Upon completion of construction in conformity with the plans, and any properly approved changes, the Owner shall convey to the Town, by bill of sale, all physical facilities constructed by Owner necessary for the extension, maintenance and repair of municipal utility services and other public facilities in accordance with subsection 6.6 above. Acceptance of said conveyance shall be authorized by the Town Administrator. Following such dedication or conveyance, the Town shall be solely responsible for the maintenance of such improvements, including utility charges, and any damage to the improvements not resulting from defects in materials and workmanship, except for any correction work required during the warranty period. 6.8 Construction Schedule. Prior to commencing any work on the Property, the Owner shall submit an agreed upon time schedule for the construction and completion of the on-site and off-site public and other required private Development improvements, excluding buildings, for the Development. Said schedule shall provide for a commencement date as well as a date when such improvements will be substantially completed. Where Owner is prevented from commencing or completing any of the public or other required private Development improvements within the time periods set forth in the construction schedule or otherwise set forth in this Agreement due to an unforeseeable cause or delay beyond the control and without the fault or negligence of the Owner, the times for commencement and/or completion of such improvements shall be extended in an amount equal to the time lost due to such delay if a request is made in writing to the Town by the V3RClean-Castle Peak Senior Care Community 8 May 9,2014 Development Improvements Agreement Owner and approved by the Town Engineer. Delays beyond the control of the Owner shall include, but not be limited to, acts of neglect by the Town, fires, floods, epidemics, abnormal weather conditions, strikes, freight embargos or acts of God. Delays attributable to and within the control of the Owner's contractors, subcontractors or suppliers, as applicable, shall be deemed to be delays within the control of the Owner. 6.9 Dogs Prohibited During Construction. The Owner shall prohibit its contractors and subcontractors from bringing dogs onto the Property, even if such dogs are to be kept inside motor vehicles. Violation of this policy shall result in the immediate eviction of the dog and the dog's owner or harborer by the Owner from the Property. In the event of a second violation by the same dog and/or the same dog's owner or harborer, the dog and the dog's owner or harborer shall be immediately evicted from the Property by the Owner and the offending person shall be prohibited from entering or working within the Property for the following seven (7) consecutive calendar days. In the event of a third violation, the offending person shall be prohibited by the Owner from entering or working within the Property for the following six (6) calendar months. SECTION 7 LANDSCAPING 7.1 Installation of Landscaping. Owner shall install, at its sole cost and expense, all landscaping contained within the streetscape improvements together with a complete drip irrigation system for such landscaping. The Town shall be responsible, at its sole cost and expense, for installing any necessary meters and backflow preventers. 7.2 Maintenance of Landscaping. Maintenance of landscaped areas within the public right-of-way adjacent to the Property shall be irrigated and maintained in good condition by the Owner. SECTION 8 WATER AND WASTEWATER SERVICES 8.1 Dedication of Water Rights. The Town acknowledges that sufficient water rights have previously been dedicated to the Town to serve this Development. 8.2 Construction of Treated Water Distribution System Improvements. The Owner shall be responsible at its sole cost and expense, for constructing all water system improvements located within the Property necessary to serve the Development. 8 .3 Provision of Water Service Within the Development. Upon completion of the water system improvements necessary to serve the Development, the Town shall provide municipal treated water service to the Development. Provision of water service to the V3RClean-Castle Peak Senior Care Community 9 May 9,2014 Development Improvements Agreement Development shall be made available upon full payment of the applicable plant investment fee and utility connection charges at the then applicable rate set forth in the Eagle Municipal Code. 8.4 Water Plant Investment Fee and Prepayment of Deposit. Owner shall prepay water plant investment fees in accordance with the requirements of Section 12.16.040 of the Eagle Municipal Code. The water plant investment fee is currently estimated to be $206,325.00. Sixty percent (60%) of such amount is $125,795.00. Therefore, $125,795.00 shall be paid to the Town, as a pre-paid deposit of the water plant investment fee prior to the issuance of the Major Development Permit for the Property. The deposit provided shall be non- refundable and shall be applied, as a credit, to the total water plant investment fee due. At the time of application for any building permit for the construction of any structure on the Property which will use Town water service, the Owner shall make application to the Town Clerk and to the Public Works Director for water service to the Property. The plant investment fee shall be assessed at the then prevailing rate applicable, as provided in the Eagle Municipal Code and the credit shall be applied as described above. The balance due for the water plant investment fee shall be due and payable at the same time the building permit is issued in accordance with Section 12.16.040 of the Eagle Municipal Code. 8.5 Construction of Wastewater Collection System Improvements. The Owner, at its sole cost and expense, shall design, purchase, and install all elements of the wastewater collection system located on the Property to fully service the Development in accordance with any design drawings, plans and specifications submitted with the Development Plan and approved by the Town Engineer, and applicable Uniform Non-discriminatory Regulations of the Town in effect at the time of issuance of the Major Development Permit. 8.6 Provision of Wastewater Collection and Treatment Service by the Town. Upon completion of any wastewater collection system improvements necessary to serve the Development by the Owner, and upon approval and acceptance by the Town Engineer, the Town agrees to provide wastewater treatment and collection service to the Development upon Owner making a written request for such service and the payment of any required plant investment fees and connection charges. Provision of wastewater service by the Town within the Development shall be made pursuant to agreement by the Town and on a first come/first served basis with other wastewater service customers, subject to system capacity and any prior commitments, and at the then applicable rate as set forth in the Eagle Municipal Code. The Owner shall not receive any preference for or assurance of the availability of wastewater collection and treatment service from the Town until a plant investment fee is paid. 8.7 Wastewater Plant Investment Fee. At the time of application for any building permit for the construction of any structure on the Property which will use the Town's wastewater collection and treatment service, the Owner shall make application to the Town Clerk and Public Works Director for wastewater service for the Property. The wastewater plant V3RClean-Castle Peak Senior Care Community 10 May 9,2014 Development Improvements Agreement investment fee shall be calculated pursuant to the fee schedule set forth in Section 12.36.050 of the Eagle Municipal Code. Such fee shall be paid prior to the issuance of the building permit. Taps will be made available on a first come/first served basis with other wastewater customers, subject to available system capacity and any prior commitments. Owner will not receive any preference for or assurance of availability of wastewater service from the Town until the plant investment fee is paid. Based upon the Town's current rate schedule and full build out as shown in the Development Plan, Owner will be required to pay a wastewater plant investment fee of$237,000.00. SECTION 9 PERFORMANCE GUARANTEE 9.1 Security for Public Improvements Required. The proposed Development is the result of collaboration among various public and private entities and will be owned and operated by Castle Peak Senior Care, LLC. Funding or financing for the project is being provided by public entities including the Eagle County Housing and Development Authority, municipalities throughout Eagle County and the United States Department of Agriculture, Rural Development ("RD"). Private funding or financing is also being provided by Augustana Care, a construction lender, and citizens of Eagle County. Construction of the Castle Peak Senior Care Community project will be subject to inspections and review by multiple parties including the construction lender and RD prior to any draws taking place. In light of the unique nature of the project, ownership by a single entity, and significant oversight from third parties, only public improvements dedicated or conveyed to the Town, but not private, improvements will be subject to the performance guarantee requirements as forth herein. In order to secure the construction and installation of the public improvements, whether on-site or off-site, above described and as shown in the Development Plan for the Property for which Owner is responsible, Owner shall furnish the Town with: (a) cash to be deposited in an escrow account that is acceptable to the Town pursuant an agreement substantially similar to the form attached hereto as Exhibit "B" and incorporated herein by this reference , unless otherwise mutually agreed by the parties; or (b) an irrevocable standby letter of credit that is acceptable to the Town; or (c) a performance bond issued by a surety approved by the Town; or (d) other security acceptable to the Town Attorney in an amount equal to one hundred ten percent (110%) of the estimated cost of said facilities. 9.2 Delivery of Security. Owner shall furnish to the Town the security required by this Section prior to issuance of a building permit for the Property. Unless expressly authorized by the Town Administrator, the Owner shall not commence any work within the Development until such approved security is furnished to the Town. V3RCIean-Castle Peak Senior Care Community 11 May 9,2014 Development Improvements Agreement 9.3 Special Letter of Credit Standards. In the event the Owner elects to deliver to the Town an irrevocable letter of credit as a performance guarantee, the letter of credit shall be payable at sight to the Town, or its designee, and will bear an expiration date of not earlier than two (2) years from the date of issuance. The Owner shall renew such letter of credit as necessary in order to secure the performance and completion of the public improvements for which Owner is responsible in accordance with this Agreement, without further notice from the Town. If the Owner fails to provide the Town a satisfactory substitute letter of credit at least thirty (30) days prior to the expiration date of the letter of credit previously delivered, the Town may, at its sole option, draw the full amount of the letter of credit and hold the proceeds thereof as a performance guarantee deposit. The proceeds of such draw shall be deposited in a federally insured interest bearing account, and all interest earned thereon shall be added to and become part of the performance guarantee deposit. 9.4 Additional Security Standards; Payment Upon Default. The initial performance bond or letter of credit, if applicable, issued pursuant to this Agreement shall bear an expiration date of not earlier than two (2) years from the date of issuance. The Owner shall renew such security as necessary in order to secure the performance and completion of the public improvements in accordance with this Agreement without further notice from the Town. The performance bond, letter of credit, or escrow funds shall be payable at any time upon presentation of an affidavit by the Town stating Owner is in default under this Agreement, has received notice of such default as required by subsection 9.7 of this Agreement and has failed to cure such default within the time set forth in subsection 9.7 of this Agreement or in the case of a letter of credit, the Owner has failed to renew the letter of credit as required herein. The performance bond, or letter of credit, or Escrow and Disbursement Agreement or other acceptable security shall be in good and sufficient form as approved by the Town Attorney. In the event of a default by the Owner and compliance with the terms of subsection 9.7 of this Agreement the surety or financial institution shall disperse funds, upon written request by the Town, or the escrow fund may be drawn upon, showing the proposed payee and the amount to be paid. Copies of any such request shall be sent to the Owner at its last known address. 9.5 Partial Release of Security. Upon completion of a certain class of the improvements by the Owner, such as water lines by way of example, evidenced by a detailed cost breakdown of the completed improvements, the amount of any security issued pursuant to this Agreement may be reduced by up to twenty percent (20%) of the approved estimated cost for the installation of such class of improvements, upon application of the Owner, and approval by the Town Administrator. Upon completion of all of the public improvements by the Owner, and upon final inspection and approval by the Town Engineer of all such improvements, the Board of Trustees shall further authorize the reduction of the amount of the security guaranteeing the public improvements to ten percent (10%) of the total actual cost of such improvements. V3RClean-Castle Peak Senior Care Community 12 May 9,2014 Development Improvements Agreement 9.6 Full Release of Security. Any performance guarantee issued pursuant to this Agreement shall be fully released and discharged by action of Town's Board of Trustees upon expiration of the twenty-four (24) month warranty period, and the correction of any defects discovered during such warranty period. In the event that the correction of defects are not satisfactorily completed upon the expiration of the twenty-four (24) months, the Town may require a new performance guarantee and withhold the issuance of any further building permits until a new improvements guarantee is recorded. The warranty period begins on the day the Board of Trustees approves the Partial Release of Security pursuant subsection 9.5 above. 9.7 Notice of Default. Upon the Owner's failure to perform its obligations under this Agreement, all other applicable plans, drawings, specifications and other documents as approved, within the time periods set forth in this Agreement, the Town may give written notice to Owner of the nature of the default and an opportunity to be heard before the Board of Trustees concerning such default. If such default has not been remedied within thirty (30) days of receipt of the notice or of the date of any hearing before the Board of Trustees, whichever is later, (or such reasonable time period as is necessary to cure the default provided that Owner has commenced in good faith to cure the default), the Town may then give written notice to the Owner and any surety on the performance bond, issuer of a letter of credit, or escrow agent that the Town, as agent for the Owner, is proceeding with the task of installing the public improvements in whole or in part. 9.8 Power of Attorney Granted. The Owner hereby designates and irrevocably appoints the Mayor of the Town of Eagle, Colorado, as its Attorney-In-Fact and agent for the purpose of completing all public improvements required by this Agreement in the event of a default by the Owner. This Agreement shall be recorded in the office of the Clerk and Recorder of Eagle County, Colorado, and shall constitute constructive notice of this Agreement and the power of attorney provided herein. This Agreement and power of attorney contained herein may be enforced by the Town pursuant to all legal and equitable remedies available, including an action for specific performance in a court of competent jurisdiction. 9.9 Increase in Amount of Security. If a substantial amount of time elapses between the time of posting of the security and actual construction of the improvements, the Town reserves the right to require a reasonable increase in the amount of the applicable security, if necessary because of estimated increased costs of construction. 9.10 Cost Estimate Not Binding. The purpose of the cost estimate described in subsection 9.1 above is solely to determine the amount of security required and may be revised from time to time to reflect the actual costs. No representations are made as to the accuracy of these estimates, and the Owner agrees to pay the actual cost of all such public on-site and off-site improvements. Neither the estimated costs nor the amount of the security establishes the maximum amount of the Owner's liability. V3RClean-Castle Peak Senior Care Community 13 May 9,2014 Development Improvements Agreement 9.11 Attorney's Fees. If any legal proceedings are commenced concerning the Town's election to complete the public improvements, as agent for the Owner, against the Owner, its surety, or issuer of the letter of credit, the substantially prevailing party shall be entitled to its costs and reasonable attorney's fees (including legal assistant's fees) or the reasonable value of a salaried attorney's time (including legal assistant's time). SECTION 10 INDEMNIFICATION AND INSURANCE 10.1 Indemnification By Contractors. Any contractor employed by the Owner who performs work within rights-of-way or easements dedicated to the Town or within other property owned by the Town shall agree to indemnify and hold harmless the Town of Eagle, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with work performed by such contractor for the Owner within Town rights-of-way, easements or other property, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of such contractor, any subcontractor of the contractor, or any officer, employee, representative, or agent of such contractor or of any subcontractor of the contractor, or which arise out of any workers compensation claim of any employee of the contractor or of any employee of any subcontractor of the contractor. The contractor shall agree to investigate, handle, respond to, and provide a defense for and defend against, any such liability, claims or demands at the sole expense of such contractor. The contractor shall also agree to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. 10.2 Insurance Required. Any contractor employed by the Owner to perform work within rights-of-way or easements dedicated to the Town, within any other property owned by the Town, or upon a third party's private property, shall agree to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands and other obligations assumed by such contractor pursuant to subsection 10.1. Such insurance shall be in addition to any other insurance requirements imposed by the Owner or by law. Any such contractor shall not be relieved of any liability, claims, demands or other obligations to be assumed pursuant to subsection 10.1 by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. 10.3 Nature and Amounts of Insurance. Any contractor employed by the Owner to perform work within rights-of-way and easements dedicated to the Town, or other property V3RClean-Castle Peak Senior Care Community 14 May 9,2014 Development Improvements Agreement owned by the Town, or upon a third party's private property shall procure and maintain, and shall cause any subcontractor of such contractor to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurers acceptable to the Town. All coverages shall be continuously maintained to cover all liability, claims, demands and other obligations to be assumed by such contractor pursuant to subsection 10.1. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 10.3.1 Workers Compensation insurance to cover obligations imposed by applicable Colorado law for any employee engaged in the performance of work, and Employers' Liability insurance with minimum limits of$500,000.00 each accident, $500,000.00 disease-policy limit, and $500,000.00 disease-each employee. Evidence of qualified self-insured status may be substituted for the Workers Compensation requirements of this paragraph. 10.3.2 General Liability insurance with minimum combined single limits of $1,000,000.00 each occurrence and $1,000,000.00 aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual, and employee acts), blanket contractual independent contractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interest's provision. 10.3.3 Comprehensive Automobile liability insurance with minimum combined single limits for bodily injury and property damage of not less than $1,000,000.00 each occurrence and $1,000,000.00 aggregate with respect to each of a contractor's owned, hired or non-owned vehicles assigned to or used in performance of services within the Town's rights-of-way, easements, other Town property, or upon a third party's private property. The policy shall contain a severability of interests provision. 10.3.4 The policies required by paragraphs (10.3.2) and (10.3.3) above shall be endorsed to include the Town of Eagle and the Town's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the Town, its officers, or its employees, or carried by or provided through any insurance pool of the Town, shall be excess and not contributory insurance to that provided by the Owner's contractors. No additional insured endorsement to the policy required by subsection 10.3.1 above shall contain any exclusion for bodily injury or property damage arising from completed operations. A contractor shall be solely responsible for deductible losses under any policy required above. 10.3.5 Upon request by the Town, the Owner shall provide the Town with a certificate of insurance to be completed by the contractor's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect. V3RClean-Castle Peak Senior Care Community 15 May 9,2014 Development Improvements Agreement The certificate shall identify the contract and shall provide that the coverages afforded under the policy shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the Town. 10.4 Indemnification by Owner. In addition to the indemnification required in subsection 10.1, the Owner hereby expressly agrees to indemnify and hold the Town harmless from and against all claims, costs and liability of every kind and nature, for injury or damage received or sustained by any person or entity, excluding Town officers, agents or employees, in connection with, or on account of the performance of work within the Property and elsewhere by the Owner, or its agents, contractors or employees pursuant to this Agreement. The Owner further agrees to aid and defend the Town in the event that the Town is named as a defendant in any action concerning the performance of work by the Owner, or its agents, contractors or employees pursuant to this Agreement except where such suit is brought by the Owner. The Owner shall not be considered an agent or employee of the Town for any purpose. 10.5 Governmental Immunity. The parties hereto understand and agree that the Town is relying on, and does not waive or intend to waive by any provision contained in this Section, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Sections 24-10-101, et.seq., C.R.S., as from time to time amended, or otherwise available to the Town, its officers, or its employees. SECTION 11 ACCESS TO PROMENADE AREA The promenade area, as identified on Exhibit "D", attached hereto and incorporated herein by this reference, is to be located on the Property near the intersection of Sylvan Lake Road and Capitol Street. The parties agree that while a public easement has not been required by the Town, the intent is to generally allow the promenade area to be open to the public. Owner may establish reasonable rules for such public use to avoid adverse impacts to the residents and operation of the Castle Peak Senior Care facility. In the event the Owner desires to prohibit or further limit access by the public to the promenade area due to difficulty in managing the public use or prohibitive insurance costs or as otherwise determined by Owner, then the Owner will first notify Eagle County Housing and Development Authority and the Town of Eagle to allow the parties to discuss and identify alternative options, if any, prior to prohibiting or limiting public access. SECTION 12 REIMBURSEMENT OF COSTS 12.1 Development Review Costs. Pursuant to Section 4.03.080(C)(2) of the Eagle Municipal Code, the Owner shall pay to the Town the actual cost to the Town for consulting V3RClean-Castle Peak Senior Care Community 16 May 9,2014 Development Improvements Agreement engineering, surveying, base map updating, consultant planning services, and legal services rendered in connection with the Owner's Major Development Permit application. Said costs shall be billed by the Town and paid by Owner prior to the issuance of the Major Development Permit. Provided, however, upon request, the Owner shall receive detailed invoices reflecting the nature and description of each charge so incurred by the Town. In the event the Owner does not believe that the costs assessed under this Section are reasonable, the Owner may appeal such assessment to the Board of Trustees. Following an opportunity for the Owner to be heard,the Board shall affirm the appeal or deny the appeal. 12.2 Inspection Costs. Prior to the approval and acceptance of the construction and installation of the required public improvements, the Owner shall pay to the Town the actual cost of all inspections of such improvements made or conducted at the direction of the Town Administrator, Town Engineer, or Town Public Works Director, including the reasonable value of a salaried employee's time, as provided in Section 4.03.080(D)(1) of the Eagle Municipal Code. In the event the Owner believes the costs assessed are unreasonable, the Owner may appeal such assessment in the manner set forth in subsection12.1 above. SECTION 13 IMPACT FEES 13.1 Street Improvement Fee. In accordance with Section 4.13.185 of the Eagle Municipal Code, Owner shall pay to the Town the sum of $19,045.36 as and for street improvement fees for the Development. Such fees shall be paid at the time the Major Development Permit is issued to the Owner 13.2 Fire Protection Impact Fees. In accordance with Section 4.13.186 of the Eagle Municipal Code, Owner shall pay to the Town the sum of$34,272.00 as and for fire protection impact fees for the Development. Such fees shall be paid at the time the Major Development Permit is issued to the Owner. 13.3 Emergency Medical Services Impact Fees. In accordance with Section 4.13.187 of the Eagle Municipal Code, Owner shall pay to the Town the sum of $7,200.00 as and for emergency medical services impact fees for the Development. Such fees shall be paid at the time the Major Development Permit is issued to the Owner. 13.4 Waiver of Right to Challenge Fees. The Owner specifically acknowledges that the impact fees described in this Section 13 are reasonable and necessary to mitigate the impacts generated from development of the Property. Such acknowledgement by Owner shall be binding on any subsequent owner of the Property. The Owner hereby waives and releases any right it may have to challenge or contest such fees in any court of competent jurisdiction on the V3RClean-Castle Peak Senior Care Community 17 May 9,2014 Development Improvements Agreement basis that such impact fees are not reasonably related and proportional to the impacts resulting from development of the Property. Provided, however, such waiver and release by Owner shall not be construed as a waiver or release by Owner, or by any subsequent owner of the Property, of any course of action or remedy, whether at law or in equity, with respect to any other or additional fee or methodology for calculation of such fees. Owner states that such release and waiver is knowing,voluntary and made with the advice of legal counsel. SECTION 14 ISSUANCE OF MAJOR DEVELOPMENT PERMIT Upon payment of the costs and fees set forth in this Agreement, and upon delivery of the performance guarantee set in Section 9, the Town agrees to issue a Major Development Permit to the Owner within five (5) days following a request from the Owner, subject to the terms and conditions of this Agreement and the Development Plan, as approved by the Town. SECTION 15 ENFORCEMENT 15.1 Default; Notice;Termination. In the event of any default or breach by the Owner of a covenant, term, condition, or obligation under this Agreement, and if such default or breach continues after notice thereof for sixty (60) days, this Agreement may be forthwith terminated, at the option of the Town. Any declaration of termination of the Agreement shall be effective only after and upon a resolution to that effect duly authorized by the Town's Board of Trustees. All rights concerning remedies or attorney's fees shall survive any termination of this Agreement. 15.2 Legal Action. The parties to this Agreement shall have all rights available at law or in equity to enforce the terms of this Agreement, including the right of specific performance. In the event that any action is filed or maintained by either party in relation to this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees (including legal assistant's fees) or the reasonable value of a salaried attorney's time. 15.3 Other Remedies Available to Town. In the event the Owner fails to construct any required public improvements in accordance with the terms and conditions of this Agreement and the Development Plan, following the deposit of funds into escrow as permitted in Section 9 of this Agreement and the Escrow and Disbursement Agreement attached hereto as Exhibit "B", the Town may exercise any of the remedies set forth in Section 9 of this Agreement or the Escrow and Disbursement Agreement. Alternatively, the Town may assign the funds on deposit with the escrow agent to a subsequent owner or a lender who has acquired the Development by purchase, foreclosure or otherwise who will then have the same rights of completion as the Town if the subsequent owner or lender agrees in writing to complete the unfinished improvements. In addition, the Town may also suspend the Major Development Permit V3RClean-Castle Peak Senior Care Community 18 May 9,2014 Development Improvements Agreement approval during which time the Owner will have no right to lease or sell portions of the Property without the express written approval of the Town or until the improvements are completed and accepted by the Town. Provided, however, such suspension shall not affect (a) any right arising from other Town permits, approvals or other entitlements for the Property which were granted or approved prior to, concurrently with, or subsequent to the approval of this Agreement and the issuance of the Major Development Permit; or (b) the parties' rights pursuant to subsection 17.5 below. These remedies are cumulative in nature. SECTION 16 VESTED RIGHTS-VACATION OF DEVELOPMENT PLAN 16.1 Vested Property Rights. Owner and the Town agree that (a) this Agreement, together with the documents constituting the approved Development Plan constitute an approved "Site Specific Development Plan" as defined in the Vested Property Rights Statute and the Vested Property Rights Regulations, and (b) the Owner of the Property shall have vested property rights to undertake and complete development and use of the Property for a period of three (3) years from the effective date of the ordinance or resolution approving this Agreement. The Town shall not initiate any zoning, land use or other legal or administrative action that would directly or indirectly have the effect of altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise materially and adversely impairing to a substantial degree any of Owner's vested property rights, except as otherwise permitted under Section 24-68-105, C.R.S., or as expressly set forth in this Agreement. APPROVAL OF THIS PLAN CREATES A VESTED PROPERTY RIGHT PURSUANT TO SECTION 24-68- 103, C.R.S.,AS AMENDED. 16.2 Vacation of Development Plan. Failure of the Owner to complete construction of the required improvements required by this Agreement and the Development Plan within the times provided herein and following the delivery of the notice described in subsection 9.7 hereof and the expiration of the thirty (30) day time period described in subsection 9.7 without a cure by Owner, the vested property rights associated with the Development Plan and this Agreement shall be forfeited. Upon such an event, the Board of Trustees of the Town may enact an ordinance vacating the Development Plan and Major Development Permit and upon the effective date of such ordinance,the Development Plan and the Major Development Permit issued in connection therewith shall be null, void, and of no effect. The Owner shall then be prohibited from developing the Property without further approvals by the Town. Any property rights dedicated to the Town of Eagle for public purposes shall remain the property of the Town and shall be considered liquidated damages. Provided, however, vacation of the Development Plan and Major Development Permit shall not affect (a) any right arising from other Town permits, approvals or other entitlements for the Development which were granted or approved V3RClean-Castle Peak Senior Care Community 19 May 9,2014 Development Improvements Agreement prior to, concurrently with, or subsequent to the issuance of the Major Development Permit; or (b) the parties' rights pursuant to subsection 17.5 below. 16.3 Certificate of Compliance. It is agreed that upon completion of all improvements which are the subject of this Agreement, expiration of the warranty period for public improvements as provided herein, and compliance with all of the terms of this Agreement, the Town shall, upon request from Owner, execute a resolution or certificate stating that all improvements have been constructed in compliance with this Agreement. SECTION 17 MISCELLANEOUS PROVISIONS 17.1 Waiver of Defects. In executing this Agreement, Owner and the Town waive all rights they may have concerning defects, if any, of the form of this Agreement, the formalities whereby it is executed; and concerning the procedure, substance and form of the ordinances or resolutions adopting this Agreement. Owner further waives all rights it may have concerning the power of the Town to impose conditions on Owner as set forth herein. 17.2 Failure to Exercise Rights. No waiver of any provision of this Agreement will be deemed or constitute a waiver of any other provision, nor will it be deemed or constitute a continuing waiver unless expressly provided for by written amendment to this Agreement signed by the Town and the Owner; the waiver of any default under this Agreement shall not be deemed a waiver of any subsequent default or defaults of the same type. The Town's failure to exercise any right under this Agreement will not constitute the approval of any wrongful act by the Owner or the acceptance of any improvement. The Owner's failure to exercise any right under this Agreement will not constitute the approval of any wrongful act by the Town. 17.3 Complete Agreement. This Agreement together with the Development Plan and related plans and design specifications contain .all of the understandings, conditions and agreements between the Town and Owner relating to the Development at this time, and no other prior or current representation, oral or written, shall be effective or binding upon the Town and Owner, except for representations made by the Owner, or its agent, or the Town Board of Trustees and Town staff members at public hearings concerning approval of the Development Plan, not in conflict with the express provisions of this Agreement. 17.4 Enabling Ordinances Required. To the extent required by law and by the terms of this Agreement, the obligations and covenants of the Town are conditional upon the adoption by the Town of appropriate enabling ordinances or resolutions. 17.5 Attorney's Fees. In the event that any action is filed or maintained by either party in relation to this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney fees (including legal assistant's fees) or the reasonable value of a salaried V3RClean-Castle Peak Senior Care Community 20 May 9,2014 Development Improvements Agreement attorney's time (including legal assistant's time). All rights concerning remedies or attorney's fees shall survive termination of this Agreement. 176 Authorization. The signatories to this Agreement affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary actions, notices, meetings, and/or hearings pursuant to any law required to authorize their execution of this Agreement have been made or will be made. 17.7 Amendments. This Agreement may be amended from time to time by written agreement duly authorized by the parties. 17.8 Representations of Town Officials. It is expressly understood that the Town cannot be legally bound by the representations of any of its officers or agents or their designees except in accordance with the Eagle Municipal Code and ordinances, and that the Owner, when dealing with the Town, acts at its own risk as to any representation or undertaking by the Town or its officers or agents or their designees which is subsequently held unlawful by a court of law, which is in accordance with the laws of the State of Colorado. Provided, however,that this subsection shall not be construed to limit the rights and remedies of the parties otherwise provided by law. 17.9 Covenants. The provisions of this Agreement shall be binding on all subsequent owners of the Property as covenants running with the Property, to be released only by the Town of Eagle, and the benefits and burdens of this Agreement shall bind and inure to the benefit of all estates and interests in the Property and all successors in interest to the parties to this Agreement, except as otherwise provided herein. 17.10 Notices. All notices required or given by the terms of this Agreement shall be made by certified first class mail, postage prepaid, return receipt requested, to the parties at their addresses listed below. All notices shall be effective upon mailing. These addresses shall remain valid until notice of a change of address is given in accordance herewith. If to Town: Town of Eagle, Colorado Board of Trustees P.O. Box 609 Eagle, Colorado 81631 Attn.:Town Administrator With a copy to: Sands Law Office, LLC. 450 West Avenue, Suite 204 Rifle, Colorado 81650 Attn.: Edward P. Sands, Esq. If to Owner: Senior Care Land Company, LLC V3RClean-Castle Peak Senior Care Community 21 May 9,2014 Development Improvements Agreement P.O. Box 850 Eagle, Colorado 81631 Attn:Jill Klosterman With a copy to: Diane Mauriello, Assistant Eagle County Attorney P.O. Box 850 Eagle, Colorado 81631 17.11 Time of the Essence. Time is of the essence of this Agreement. 17.12 Colorado Law Applicable. This Agreement is made and delivered within the State of Colorado, and the laws of the State of Colorado shall govern its interpretation, validity, and enforceability. 17.13 Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by either party to this Agreement whether arising out of or relating to the Agreement, a letter of credit, or performance bond or other performance guarantee will be deemed to be proper only if such action is commenced in the District Court for Eagle County, Colorado. The Owner expressly waives its right to bring such action in or to remove such action to any other court, whether State or federal. 17.14 Rights of Persons Not a Party. No person or entity who or which is not a party to this Agreement will have any right of action under this Agreement. 17.15 Provisions Deemed Severable. If any part, term or provision of this Agreement is held by the courts to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision and the rights of the parties will be construed as if the part,term, or provision was never part of the Agreement. 17.16 Assignment of Rights; Release of Obligations. The benefits of this Agreement are personal to the Owner and may not be assigned except as provided herein. The Owner may, at any time, without further consent of the Town, assign this Agreement, and the benefits and burdens created therein to Castle Peak Senior Care, LLC. Such assignment to Castle Peak Senior Care, LLC shall constitute a full and complete release of Senior Care Land Company LLC from any and all liability and obligations under this Agreement. Any other assignment shall be prohibited without the express written approval of the Town. Such approval may not be unreasonably withheld, but any unapproved assignment is void. There is no prohibition on the right of the Town to assign its rights under this Agreement. The Town will release the performance guarantee supplied by the Owner if it accepts new acceptable security from any future owner or lender who obtains the Property. However, no act will constitute a release of the original Owner from liability under this Agreement unless an assignment of this Agreement is expressly authorized in this Agreement or by future action of the Town. V3RClean-Castle Peak Senior Care Community 22 May 9,2014 Development Improvements Agreement 17.17 No Waiver of Immunity. Nothing contained in this Agreement constitutes a waiver of the Town's sovereign immunity or governmental immunity under any applicable State law. 17.18 Recordation of Agreement. The Town shall record a copy of this Agreement in the office of the Clerk and Recorder of Eagle County, Colorado. 17.19 Execution of Other Documents. The parties agree to execute any additional documents and to take any additional actions necessary to carry out the terms of this Agreement. 17.20 Additional Requirements. The parties acknowledge and agree that that construction lender and/or RD may impose additional or conflicting requirements from those set forth in this Agreement. In such event, the parties agree to work cooperatively and in good faith to address such construction lender and RD requirements in a manner acceptable to the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. TOWN OF EAGLE, COLORADO, a municipal corporation, acting by and through its Board of Trustees, ditiL By: Yuri Kostick, ayor ATTEST: ,101/6& ,Ii/1/0— Sarah Braucht,Town Clerk SENIOR CARE LAND COMPANY, LLC, a Colorado limited liability company By its Member Eagle County Hou : .nd Development Authority r By: . .� V3RClean-Castle Peak Senior Care Community 23 May 9,2014 Development Improvements Agreement STATE OF COLORADO )ss. COUNTY OF EAGLE rk Subscribed and sworn to before me this I3 day of yb(al/ , 2014, by Yuri Kostick, Mayor, and Sarah Braucht, Town Clerk, respectively, of the Town of Eagle, Colorado. WITNESS MY HAND AND OFFICIAL SEAL. ................. Nr My commission expires: 8- ZR-Zotc tOTAiZr'y� Yee1164 -(44/4( wool►. ,. Notary Public STATE OF COLORADO )ss. COUNTY OF EAGLE tot- Subscribed and sworn to before me this _ day of MO/ , 2014, by b L{. Ivl� , Senior Care Land Company, LLC, �y its Member Eagle County Housing and Development Authority. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: DEBuRAH tYKIN CHURCHILL A/Wit /� tiG rAR'1 PUBuC IW : t 6{/��/V v` �i'tA'E OF COLORADO Notary Public MY COMMISSION EXPIRES 3/24/2015 V3RClean-Castle Peak Senior Care Community 24 May 9,2014 Development Improvements Agreement CASTLE PEAK SENIOR CARE COMMUNITY DEVELOPMENT IMPROVEMENTS AGREEMENT EXHIBIT LIST Exhibit A: Development Plan Exhibit B: Escrow and Disbursement Agreement Exhibit C: List of Public Improvements Exhibit D: Map of Promenade Area — -r - p N i C O 0 r 'alit iiii ; ii1I ..p g iii 11 1 N 1 to a �r ! - B s~-t .It Pi „- ' , . . „ .,, e' ii S an 1 6 V 11 tIS II 4i i :111 g S.. ep,'---1 2 -1.1 Al -,1 v '',) \ 3 11EF: ,-.3ER il II 1 4e �m fft ilik lilt 11 II � I ig er '\ \ I i,, 1 \ i -4-H -I It gz .Jam:- Cpl ' LL-� ..�= ^al it .4 {, µ„�n 4 j` j 7 ' 3l - ,Y ..^A : ^n 1,3;Ili; io: lifi; / __I ' -A z,e''---: !: : i'l :Ili” ' - 1 4, ) ,, ,, 7.7Llizt,t1), /ii, ,,i, . : : : , .-z .9 sli j , , v ,, , \IL;it lilljr*waaw� I \V 't_---- - ' I ' i N E y /' II S I ,..,' 7th / �'�I '...f/. 1 E ii if 4, ° ./.: / 1 p t ; g .1 '� 5,// d � �g Or ott�� � EE .Y.� I /' (�� � � s SC g \\ iii 11/2 4) / (-7----':! ii I, pi igss p 111 W g ii 1 -`� >� W igSS52S Cd Q�4 j j '� -I O 1 ill FE a P. ff f 1 �� i` ° "6 I :?',F1 m N { i, I 'I a � y :is�i C`'� 8 a 1 = \ , , am z 1 Afa a L ' i(t . , . *k tie A ir h t h ii 1iflh11fl1I! � IolI .4. 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WII IIII / /), x1! € dill 1,1 is f l I$# } / ! i 111 11pi1 1 pillii ii1illIjli111I114€'I#1 W -4 11'' _//Ilk ei 'rg ill lain it ittigigigiiiiltittligsi :"s$$$ 9k z = a EXHIBIT"B" TOWN OF EAGLE DEVELOPMENT IMPROVEMENTS ESCROW AND DISBURSEMENT AGREEMENT THIS AGREEMENT is entered into on (14aAi i3 , 2014, by and between THE TOWN OF EAGLE, COLORADO, a municipal corporation, whose address is Town Hall, 200 Broadway, P.O. Box 609, Eagle, Colorado 81631; and CASTLE PEAK SENIOR CARE, LLC, a Minnesota limited liability company, whose address is 1425 10th Avenue, Suite 100, Minneapolis, MN 55404-1395 ("Owner"); and ("Escrow Agent") RECITALS: A. Whereas, the Town and Senior Care Land Company, LLC entered into a Development Improvements Agreement dated Mpwi 13 , 2014, ("Development Improvements Agreement") which has now been assigned to Castle Peak Senior Care, LLC containing terms and conditions regarding the Development and development of certain property described as Lot 2, Eagle Ranch, Filing No. 27, Development, Town of Eagle, County of Eagle, State of Colorado, and B. Whereas, in accordance with the Development Improvements Agreement, Owner is required to deposit the sum of $ ("Escrow Funds"), an amount equal to one hundred ten percent (110%) of the estimated cost of constructing and installing certain described public improvements, to guarantee the construction and installation of such improvements; and the Town and Owner have selected Escrow Agent to hold and disburse the Escrow Funds. NOW, THEREFORE, in consideration of the recitals described above, the mutual covenants and conditions contained in this Escrow and Disbursement Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Town, Owner, and Escrow Agent agree as follows: SECTION 1 CONSTRUCTION OF IMPROVEMENTS Owner agrees to complete the construction and installation of the public improvements in accordance with all terms and conditions contained in the Development Improvements Agreement. Such construction and installation shall be at Owner's sole expense. 1 Escrow and Disbursement Agreement May 2, 2014 SECTION 2 FUNDS HELD IN ESCROW Concurrently with the execution of this Escrow and Disbursement Agreement, Owner shall deposit the sum of $ with Escrow Agent. Escrow Agent agrees to hold this amount in escrow and any additional amounts deposited in accordance with the terms of the Development Improvements Agreement. Any interest earned on the funds deposited shall belong to the Owner. SECTION 3 DUTIES OF ESCROW AGENT The duties of the Escrow Agent shall be as follows: 3.1 Disbursement of Funds. During the term of this Escrow and Disbursement Agreement, Escrow Agent shall hold and disburse the Escrow Funds strictly in accordance with the terms and provisions of this Escrow and Disbursement Agreement. 3.2 Limited Liability. The Town and Owner agree and acknowledge that Escrow Agent assumes no liability in connection with this Escrow and Disbursement Agreement except for gross negligence or willful misconduct; that Escrow Agent shall never be responsible for the validity, correctness or genuineness of any document or notice referred to in this Escrow and Disbursement Agreement; that Escrow Agent is under no duty or obligation to ascertain the identity, authority or rights of the other parties (or their agents) executing or delivering or purporting to execute or to deliver this Escrow and Disbursement Agreement or any documents, papers or payments deposited or called for under this Escrow and Disbursement Agreement; and that Escrow Agent may seek advice from its own legal counsel and shall be fully protected in any action taken by it in good faith in accordance with the opinion of its counsel. 3.3 Disputes. If Escrow Agent is unable to determine at any time to whom the Escrow Funds should be delivered, or if a dispute develops between the Town and the Owner concerning to whom the Escrow Funds should be delivered, then in such event, the Escrow Agent shall deliver the Escrow Funds in accordance with the joint written instructions of the Town and Owner. In the even such written instructions are not received by Escrow Agent within ten (10) days after Escrow Agent has issued a written request for instructions to the Town and Owner, Escrow Agent shall have the right to pay the Escrow Funds into the registry of the Eagle County District Court and interplead the Town and Owner. Escrow Agent shall then be fully discharged of any obligation in connection with this Escrow and Disbursement Agreement. Escrow Agent shall be entitled to recover its reasonable attorneys' fees, related costs, and expenses from the Town and Owner in commencing such action. 2 Escrow and Disbursement Agreement May 2, 2014 SECTION 4 INDEMNIFICATION OF ESCROW AGENT Town and Owner agree to indemnify and hold Escrow Agent harmless from and against all claims, actions, causes of action, judgments, damage, loss, liability, costs and expenses including, but not limited to, attorneys' fees, expenses, and court costs, arising out of or in any way resulting from the construction and installation of the required public improvements on the Property as required by the Development Improvements Agreement. SECTION 5 PARTIES' CONSENT The Town and Owner hereby expressly consent to the disbursement of funds and other conduct of the Escrow Agent as authorized by the provisions of this Escrow and Disbursement Agreement. SECTION 6 ESCROW AGENT FEES Any fees charged by the Escrow Agent shall be paid by the Owner. SECTION 7 DISBURSEMENT OF ESCROW FUNDS Escrow Agent shall disburse the Escrow Funds as follows: 7.1 Partial Disbursements. Upon completion of a certain class of improvements by the Owner, such as water lines by way of example, Escrow Funds shall be paid to the Owner in an amount equal to up to twenty percent (20%) of the approved estimated cost for the installation of such class of improvements upon application by the Owner, and approval by the Town's Engineer or Town Planner. In order for Owner to receive such partial disbursement, the following shall be presented to the Escrow Agent: 7.1.1 A disbursement request signed by a professional engineer licensed by the State of Colorado ("Owner's Engineer"), which shall state which class of improvements have been completed; that Owner's Engineer has inspected the improvements for which payment is requested; that the work has been completed in accordance with approved plans and specifications; and that the sum requested to be disbursed is reasonable and consistent with the estimate contained in an addendum to of the Development Improvements Agreement; and 7.1.2 All bills or invoices for such work which have been approved by the Owner; and 3 Escrow and Disbursement Agreement May 2, 2014 7.1.3 Written approval of such partial disbursement executed by the Town Engineer or Town Planner. 7.2 Disbursements Upon Completion of Improvements. Upon written certification by the Owner and the Town Engineer that the Owner has completed all of the required public and other Development improvements in accordance with the Development Improvements Agreement, and that there are no liens, encumbrances or other restrictions on the improvements, and that such improvements have been inspected and approved by the Town Engineer or Public Works Director, the Town's Board of Trustees shall execute a resolution verifying the acceptance of the improvements and authorizing the Escrow Agent to disburse to the Owner all remaining funds except an amount equal to ten percent (10%) of the total actual cost for construction and installation of the public improvements, as certified by the Owner and the Town Engineer. The Escrow Agent shall then disburse all remaining funds except an amount equal to ten percent (10%) of the actual total cost for construction and installation of the required public and other Development improvements, as certified by Owner and the Town Engineer, upon receiving such certification. The remaining funds shall be retained by Escrow Agent for a period of twenty-four (24) months from the date of the Board of Trustees resolution verifying the acceptance of the improvements. Provided, however, during said period all or part of such funds shall be disbursed upon written certification by the Town Administrator or his designee that: any of the public improvements constructed by the Owner in accordance with the Development Improvements Agreement are defective in materials or workmanship; that following notice, the Owner has failed to perform the corrective work necessary to remedy such defects in accordance with the Development Improvements Agreement; and the Town, pursuant to the Development Improvement Agreement, is proceeding with the task of correcting the defective materials or work. Such Escrow Funds shall then be disbursed by Escrow Agent to the Town or other payee authorized by the Town in such amounts as designated by the Town. 7.3 Disbursements Upon Default. Upon written certification by the Town Administrator or his designee that: the Owner is in default under the Development Improvements Agreement and has failed to perform its obligations under such Agreement, in accordance with all plans, drawings, specifications, and other documents submitted to the Town, as approved, within the time period set forth in the Development Improvements Agreement; and that the Town, as agent for the Owner, is proceeding with the task of installing or completing the required public improvements on the Property, as specified in the Development Improvements Agreement, in whole or in part; the Escrow Agent shall then disburse Escrow Funds to the Town or other payee authorized by the Town, in such amounts as requested by the Town. 4 Escrow and Disbursement Agreement May 2, 2014 SECTION 8 TERMINATION OF AGREEMENT Upon the full completion of the construction and installation of the public improvements as designated in the Development Improvements Agreement; and upon expiration of the twenty-four (24) month warranty period set forth in the Development Improvements Agreement, as certified by the Town Engineer or Town Planner, Escrow Agent shall disburse any remaining Escrow Funds to Owner and this Escrow and Disbursement Agreement shall then terminate, and no parties shall have any further rights, duties or obligations under this Escrow and Disbursement Agreement. SECTION 9 MISCELLANEOUS PROVISIONS 9.1 Waiver of Defects. In executing this Escrow and Disbursement Agreement, the parties waive all rights they may have concerning defects, if any, of the form of this Agreement, the formalities whereby it is executed; and concerning the procedure, substance and form of the ordinances or resolutions adopting this Escrow and Disbursement Agreement. 9.2 Complete Agreement. This Escrow and Disbursement Agreement, together with the Development Improvements Agreement and Development Plan, contain all of the understandings, conditions and agreements between the Town and the Owner relating to the escrow and disbursement of funds for the construction and installation of the required public improvements, and no other prior or current representation, oral or written, shall be effective or binding upon the Town and Owner. 9.3 Attorneys' Fees. In the event that any action is filed or maintained by any party in relation to this Escrow and Disbursement Agreement, the substantially prevailing party shall be entitled to its costs and reasonable attorneys' fees (including legal assistant's fees) or the reasonable value of a salaried attorney's time (including legal assistant's time). All rights concerning remedies or attorneys' fees shall survive termination of this Escrow and Disbursement Agreement. 9.4 Authorization. The signatories to this Escrow and Disbursement Agreement affirm and warrant that they are fully authorized to enter into and execute this Escrow and Disbursement Agreement, and all necessary actions, notices, meetings, and/or hearings pursuant to any law required to authorize their execution of this Escrow and Disbursement Agreement have been made or will be made. 9.5 Amendments. This Escrow and Disbursement Agreement may be amended from time to time by written agreement duly authorized by the parties against whom such amendment may be enforced. 5 Escrow and Disbursement Agreement May 2, 2014 9.6 Notices. All notices required or given by the terms of this Escrow and Disbursement Agreement shall be made by personal delivery or by certified first class mail, postage pre-paid, return receipt requested, to the parties at their addresses listed below. All notices shall be effective upon personal delivery or mailing. These addresses shall remain valid until notice of a change of address is given to all parties. If to Town: Town of Eagle P.O. Box 609 Eagle, CO 81631 Attn:Town Administrator With a copy to: Sands Law Office, LLC. 450 West Avenue, Suite 204 Rifle, CO 81650 Attn: Edward P. Sands, Esq. If to Owner: Castle Peak Senior Care, LLC 1425 10th Avenue, Suite 100 Minneapolis, MN 55404-1395 Attn: Chief Financial Officer If to Escrow Agent: 9.7 Time of the Essence. Time is of the essence of this Agreement. 9.8 Colorado Law Applicable. This Escrow and Disbursement Agreement is made and delivered within the State of Colorado, and the laws of the State of Colorado shall govern its interpretation, validity and enforceability. 9.9 Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by any of the parties arising out of or relating to this Escrow and Disbursement Agreement will be deemed to be proper only if such action is commenced in the District Court of Eagle County, Colorado. The parties expressly waive any rights to bring such action in or to remove such action to any other court, whether State or federal. 9.10 Rights of Persons Not a Party. No person or entity who or which is not a party to this Escrow and Disbursement Agreement will have any right of action under this Escrow and Disbursement Agreement. 6 Escrow and Disbursement Agreement May 2, 2014 9.11 Provisions Deemed Severable. If any part, term or provision of this Escrow and Disbursement Agreement is held by a court to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision and the rights of the parties will be construed as if the part, term, or provision was never part of the Escrow and Disbursement Agreement. 9.12 Execution of Other Documents. The parties agree to execute any additional documents and to take any additional action necessary to carry out the terms of this Escrow and Disbursement Agreement. IN WITNESS WHEREOF, each party to this Escrow and Disbursement Agreement has caused it to be executed on the date indicated below. THE TOWN OF EAGLE, COLORADO, a muni ipal corporation BY I' I► ..� Yuri o• k, Ma or Date ATTEST: )46440/6olt Sarah Braucht,Town Clerk STATE OF COLORADO ) ss. COUNTY OF EAGLE Subscribed and sworn to before me this 13 day of 14lt , 2014, by Yuri Kostick, Mayor and Sarah Braucht, Town Clerk. WITNESS MY HAND AND OFFICIAL SEAL My commission expires: : N ARY l 4 f 4v(...11 �A.�/ :dj= PUBLIC Notary Public • Ago 7 Escrow and Disbursement Agreement May 2, 2014 OWNER: Castle Peak Senior Care, LLC By: Date STATE OF COLORADO ) ss. COUNTY OF EAGLE Subscribed and sworn to before me this day of , 2014, by (Owner) WITNESS MY HAND AND OFFICIAL SEAL My commission expires: Notary Public ESCROW AGENT: (Name of Financing Institution) By: Date STATE OF COLORADO ) ss. COUNTY OF EAGLE Subscribed and sworn to before me this day of , 2014, by (Escrow Agent) WITNESS MY HAND AND OFFICIAL SEAL My commission expires: Notary Public 8 Escrow and Disbursement Agreement May 2, 2014 EXHIBIT C The following improvements shall be subject to the performance guarantee and warranty requirements set forth in the Development Improvement Agreement: 1. Public streetscape improvements located within the public pedestrian access easement and utility and drainage easement to be located on that portion of Lot 2, Filing 27, Eagle Ranch adjacent to Sylvan Lake Road as well as streetscape improvements within the Sylvan Land Road Right-of-Way which public streetscape improvements shall specifically include: a. Street trees and sod lawn landscaping; b. Concrete sidewalk, curb and gutter; c. Street lighting; d. Irrigation system required for street trees,sod lawn landscaping. 2. All water service lines, water mains and other water distribution facilities and appurtenances necessary to provide treated water service for this Development located within easements and/or rights-of-way owned or to be conveyed to the Town. 3. All wastewater collection mains and related improvements necessary to provide wastewater service for this Development within easements and/or rights-of-way owned or to be conveyed to the Town. 4. Any on-site drainage facilities located within easements and/or rights-of-ways owned or to be conveyed to the Town required for the Development. 5. Any removal from public rights-of-way or public easements of water and wastewater lines to be abandoned; 6. Any necessary public street surface restoration resulting from construction. Cg. . a_ ink . 4 0- ^ 0' o , a �1 j a r '1—x 1 1 r ti i k I g j/ , / i t ,� .t 1 M, i/ W a $ •�I i ad 1 k ..,,,, _,..) ,„ , , 4.... .... .,,...4.,....„..,„,4.:‘, I ; -, N.,ko • ------- . UW 1 i� TI,--!.,0--.. I 1...1 ii \---41. i . r 1 ti r. N lal , , i ` t� I 1 I \ $ r. 2 I 1v t N+ I �S . . t _..,h w 2 --... _ , t k ' ' ' \ r 2a C K