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Home My WebLink AboutC96-080 Vail-Arrowhead Inc SIAC '96 5 588513 B-692 P-516 04/17/96 04:03P PG 1 OF 15 REC DOC t Sara J. Fisher Eagle County Clerk & Recorder 0.00 SUBDIVISION AND OFF-SITE IMPROVEMENTS AGREEMENT BACHELOR GULCH VILLGE, FILILNG NO. 3 File No. 139-95-F2 THIS SUBDIVISION AND OFF-SITE IMPROVMENTS AGREEMENT ("Agree- ment") made and entered into this �� day of April, 1996, by and between VAIL/ARROWHEAD, INC., a Colorado corporation, (herein- after "Subdivider") and the Board of County Commissioners of the County of Eagle, State of Colorado (hereinafter "County"). 0 W I T N E S S E T H WHEREAS, the Subdivider, as a condition of approval of the Final Plat of Bachelor Gulch Village, Filing 3 (hereinafter referred to as "Subdivision"), desires an Agreement as provided for by C.R.S. 30-28-137; and RT_,REA:S, pursuant to the same authority, the Subdivider is obligated to pro;ride 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 Section 2.20 of the Land Use Regulations of Eagle County, Colorado, 1982, as amended ("hereinafter referred to as "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 r*- iv r, l WHEREAS, the Subdivider and the County have determined that the traffic which will be generated by the Subdivision, will not impact an existing County Road; 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, referred to herein; and WHEREAS, pursuant to Section 2.15.05 of the Land Use Regula- tions and C.R.S. 43-2-147, the Subdivider shall provide access for all lots and parcels it creates to the state highway system in conformance with the State Highway Access Code. NOW, THEREFORE, in consideration of the premises and the covenants and agreements herein contained to be kept and performed by the parties hereto, it is hereby understood and agreed as follows: 1. SUBDIVISION IMPROVEMENTS. 1.1 Subdivision Improvements. Subdivision Improvements are deemed to include all public improvements, including but not limited to off-site improvements 7 including roads, utilities and other similar public improvements. 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", and as set forth in all documents, construc- tion 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, either directly or as set forth in Section 4 hereof. -2- 588513 B-692 P-516 04/17/96 04:03P PG 2 OF 15 n 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 construc- tion for conformance to the approved plans and specifications, and materials sampling, testing and inspection using the Colorado Department of Highways 1990 Field Materials Manual as a guide for frequency of sampling and testing. 1.3.1 Construction Staking. Where applicable and by way of example only, the following is a highlighting of the construc- tion staking that will be required of the Subdivider: a. Roadway - horizontal and vertical control every 50 feet or every 25 feet in critical areas, specif- ically including: -slope staking -points of curvature -points of tangency -fillet radius points -culverts -transition points for super -elevation -finished sub -grade -finished gravel b. Water. Sewer, and Other Utilities - horizontal and vertical control every 100 feet, or every 50 feet in critical areas. 1.3.2 Testing. Where applicable and by way of example iv only, the following is a highlighting of the acceptance testing that will be required of the Subdivider: a. Utility trench backfill under roadway prisms - one density test per 200 C.Y. of backfill. This will require daily visits to the site by a testing laboratory when utilities are being backfilled within the roadway prism. This testing shall be -3- 588513 B-692 P-516 04/17/96 04:03P PG 3 OF 15 accomplished whether the trench is for water, sewer, gas, electric, telephone, or cable T.V. b. Embankments for roadways - one density test per 2,000 C.Y. of any additional embankment(s). C. Finished sub -grade - one density test per 250 lineal 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. 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. The County Engineer shall make an on-site visit within the forty- eight (48) hours notification period for the purpose of observing proof rolls on items 1) and 2) above and for general observation of _ construction methods being employed at these stages. Said on-site inspection by the Eagle County Engineer shall in no way abrogate the duties of the subdivider outlined elsewhere in this Agreement. j The subdivider shall provide the proof rolling by arranging for a loaded single unit truck carrying 18,000 pounds per rear axle. 1.3.4 Witnessing of Water and Sewer Laterals. It is essential that the ends of these laterals be witnessed by the 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 -4- 588513 B-692 P-516 04/17/96 04:03P PG 4 OF 15 acceptance of the Subdivision Improvements by the County. In addition to witnessing of the horizontal location of these laterals, a vertical witness shall be required. Horizontal witnessing shall be to property corners, fire hydrants, manholes, and other "permanent" features. Vertical witnessing shall be based on depth below ground and elevation based on a datum used for the subdivision. Bench marks shall be shown on witness records. 1.3.5 Test Reports. All test reports shall be consecutively numbered, with copies furnished directly to the Eagle County Engineer from the laboratory as they are reported to the Subdivider or its engineer. 1.4 Compliance with Colorado Department of Highways Access Code. Subdivider shall provide the County with designs in compliance with the Colorado Department of Highways Access Code for all road improvements. The designs shall be provided to the County at the same time as the right-of-way map which shall be provided pursuant to paragraph 4.3. 1.5 Date of Completion. All Subdivision Improvements shall be completed prior to August 15, 1999. 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 comple- tion of the work performed to date. 1.6.2 Notwithstanding Section 1.3.3 above, promptly after receiving a request for inspection and the required documen- tation, the County Engineer shall review the information presented and, if necessary, make an on-site inspection of the work complet- ed. -5- 588513 B-692 P-516 04/17/96 04:03P PG 5 OF 15 1.6.3 All said work shall be done to the reasonable satisfaction of the County Engineer and/or the County Department of Community Development, and shall not be deemed complete until approved and accepted as complete by the County. 1.7 Estimated Costs of Subdivision Improvements. The estimated cost of the Subdivision Improvements is the sum of $9,291,505.00, 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 Subdivision Improvements, the Subdivider hereby agrees to provide security and collateral in the form and as set forth in Section 2, below. 2. SECURITY and COLLATERAL. 2.1 Collateral. Security and Collateral required in Section 1.7 herein, as security for the performance by Subdivider of its obligations under this Agreement, shall be in the form of a plat note in substantially the following form: Plat Note: No lots within this Subdivision shall be sold, transferred or otherwise conveyed - nor shall any building permit be issued by Eagle County for these lots - until all of the improvements required under the Subdivision Improvements Agreement recorded in Book , at Page , are either (a) in place and approved by Eagle County, or (b) collateralized in the form as described in the Subdivision 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 shall only be released by the adoption of a resolution so stating by the Eagle County Board of County Commissioners, to be recorded in the Eagle County Clerk and Recorder's Office. -6- 588513 B-692 P-516 04/17/96 04:03P PG 6 OF 16 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 Collateral/Warranty. Within thirty (30) days after Subdivider has completed all of the work required by this Agreement and the work has been approved and accepted by the County, the entire remaining amount of the Collateral, less an amount equal to ten percent (100-.) of the original Collateral, shall be released. Subdivider shall be responsible for the condition of the Subdivision Improvements for a period of two years after completion; this shall be guaranteed either through the retention of Collateral, as set forth above, or Subdivider may provide a guarantee bond in an amount and in a form acceptable to the County - which would be substituted for the release of the entire amount of the Collateral. .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 infla- tionary 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. -7- 588513 B-692 P-516 04/17/96 04:03P PG 7 OF 15 1 1N 2.6 Events of Default. The following events shall be deemed "Events of Default," entitling the County to draw on the Collater- al. 2.6.1 If Subdivider has not completed the work required by this Agreement within thirty (30) days prior to the Date of Completion set forth herein, the County may, after ten (10) working days written Notice to Subdivider, draw upon the Collateral an amount sufficient to complete said work and compensate the County for its reasonable costs and expenses related to said draw. 2.6.2 If the original collateral presented to the County (or any extension thereof) is due to expire and the work is not yet completed., and Subdivider has not provided substitute collateral or the bank's written extension to the original collateral (as it may have been previously extended), the County shall draw on the Collateral according to the provisions set forth in this Section 2. It is Subdivider's responsibility, with or without notice, to ensure that the Collateral is extended, or that substitute collateral is provided in a form acceptable to the County, at least ten days prior to its expiration. 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 hien Waivers. In addition to the herein, the Subdivider shall insure that all are free of liens of any kind. Subdivider waivers satisfactory to the County prior to collateral. IM Collateral described public improvements shall provide lien the release of any 588513 B-692 P-516 04/17/96 04:03P PG 8 OF 15 3.1 Indemnification. Subdivider shall indemnify and hold the County harmless from any and all claims made against the County by any contractor, subcontractor, materialmen, employee, independent contractor, agent or representative involved in the work necessary to comply with this Agreement, or on account of any other claims against the County because of the activities conducted in furthe- rance 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 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 per- formance 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. CONDEMNATION. 4.1 Right -of -Way Acquisition. No off-site improvements are required by this Subdivision; therefore, Subdivider is not required to obtain rights-of-way or easements for the construction of off- site improvements. 588513 B-692 P-516 04/17/96 04:03P PG 9 OF 15 a 4.2 Condemnation. Condemnation proceedings will not be necessary for this Subdivision. 4.3 Right -of -Way Map. A right-of-way map is not necessary for this Subdivision. 5. GENERAL PROVISIONS. The following shall apply to all Subdivision Improvements, including off-site improvements, set forth in this Agreement: 5.1 Compliance with Land Use Regulations. 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. 5.2 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. 5.3 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. -10- 588513 B-692 P-516 04/17/96 04:03P PG 10 OF 15 N 5.4 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. 5.5 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. 5.6 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 unreason- ably withheld. 5.7 Binding upon Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors, and assigns. 5.8 Sole Responsibility of Subdivider Prior to County Acceptance. 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. -11- 588513 B-692 P-516 04/17/96 04:03P PG 11 OF 15 5.9 No Rights to Third Parties. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right to claim damages or to bring any lawsuit, action or other proceedings against either the County or its officers, employees or agents because of any breach hereof or because of any terms, covenants, agreements or conditions contained herein. 5.10 Notice. Notice required pursuant to the terms of this Agreement shall be deemed given on the day that the same is placed in the United States Mails, postage prepaid, certified or regis- tered mail, return receipt requested. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this _/(2day of April, 1996. COUNTY OF EAGLE, STATE OF COLORADO, ob By and Through Its ATTEST: N BOARD OF COUNTY COMMISSIONERS O d6o��4 r By: By: C erk to t Board of Chair an County Commissioners Address for giving notice: P.O. Box 850 Eagle, CO 81631 (303) 328-8685 SUBDIVIDER: VAIL/ARROWHEAD, INC. A Colorado Corporation �. I1■L►7.1�' � 1 f Address for giving notice: P.O. Box 7 Vail, CO 81658 -12- 588513 B-692 P-516 04/17/96 04:03P PG 12 OF 15 STATE OF COLORADO ) ss. County of Eagle ) The foregoing was acknowledged before me this /�? rday of Apr, t 1 1996 by QwIGS sl J-�dacle as 1 0 (; A- p,5, ch- I'l / of the Vail/Arrowhead, Inc., a Colorado corporation. WITNESS my hand and official seal. My commission expire file#83-152 588513 Not B-6 9 P-516 04/17/96 04:03P PG 13 OF 15 -13- BACHELOR GULCH VILLAGE FILING NO.3 ESTIMATED INFRASTRUCTURE COSTS JANUARY 3, 1996, REVISED AMARCH.22,1996 REVISED MARCH 28,1996 ALPINE EN INEERIN INC 588513 B-692 P-516 04/17/96 04:03P PG 15 OF 15 Page 2 BACHELOR GULCH VILLAGE FILING NO.3 ESTIMATED INFRASTRUCTURE COSTS JANUARY 3,1996, REVISED MARCH 22,1996 REVISED MARCH 28, 1996 ALPINE ENGINEERING INC EXHIBIT A Page 1 588513 B-692 P-516 04/17/96 04:03P PG 14 OF 15