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SUBDIVISION AND OFF-SITE IMPROVEMENTS AGREEMENT M a
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O N
FOR N M
04
BOULDERS SUBDIVISION
File No. SUF-7165
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THIS SUBDIVISION AND OFF-SITE IMPROVEMENTS AGRE MENT � Q) O
("Agreement") made and entered into as of the �1` day of , 2017, by and m N o
between Slopeside Construction, Inc., a Colorado corporation and 3010 v 04 �
BASINGDALE LLC, a Colorado limited liability company (collectively hereinafter 2.S tj v
a 0 vi
"Subdivider") and the Board of County Commissioners of the County of Eagle, State of w W a Ce o
Colorado (hereinafter "County").
WITNESSETH
WHEREAS, the Subdivider, as a condition of approval of the First Amendment to the
Final Plat of Boulders Subdivision (hereinafter referred to as "Subdivision"), desires an
Agreement as provided for by the Land Use Regulations of Eagle County, Colorado, 1999, as
amended (hereinafter referred to as "Eagle County Land Use Regulations") Chapter II, Section 5-
280.B.5.e. and C.R.S. §30-28-137; and
WHEREAS, pursuant to the same authority, the Subdivider is obligated to provide
security or collateral sufficient in the judgment of the County to make reasonable provisions for
completion of certain public improvements hereinafter described ("Subdivision Improvements");
and
WHEREAS, 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 Chapter II, Section 4-620.9 of the Eagle County Land Use
Regulations and C.R.S. 43-2-147, the Subdivider shall provide access for all lots and parcels it
creates to the state highway system in conformance with the State Highway Access Code.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements
herein contained to be kept and performed by the parties hereto, it is hereby understood, and
agreed as follows:
1. SUBDIVISION IMPROVEMENTS.
1.1 Subdivision Improvements. Subdivision Improvements are deemed to include all
public improvements including but not limited to all utility systems, drainage improvements,
erosion control and all off-site improvements as set forth in the construction plan set for the First
Amendment to the Final Plat of Boulders Subdivision, dated November 10, 2017, and in the cost
estimates submitted by Subdivider and attached hereto as Exhibit A and accepted by the County
C17-412
(the "Subdivision Improvements"). Such Subdivision Improvements shall include utilities and
other similar public improvements as specified by the County Engineer.
1.2 Scope of Work. The Subdivider hereby agrees, at its sole cost and expense, to
furnish all necessary equipment and materials, and to complete all Subdivision Improvements as
set forth in Paragraph 1.1 above and in the attached Exhibit A'and in accordance with all
applicable 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 and easements, if any are necessary.
1.3 Duties of Subdivider. For those Subdivision Improvements required herein,
including but not limited to the reconstruction and physical improvement of that portion of any
road subject to this Agreement, the Subdivider shall retain an engineer whose duties shall include
construction staking, observation of construction for conformance to the approved plans and
specifications, and materials sampling, testing and inspection using the Colorado Department of
Highways 2015 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 construction staking that will be required of the
Subdivider:
a. Water, Sewer, and Other Utilities - horizontal and vertical control every
100 feet, or every 50 feet in critical areas.
1.3.2 Testing. Where applicable and by way of example only, the following is a
highlighting of the acceptance testing that will be required of the Subdivider:
a. Utility and drainage culvert trench backfill under roadway prisms - one
density test per 200 C.Y. of backfill or a minimum of one test per roadway
crossing. This will require daily visits to the site by a testing laboratory
when utilities or drainage culverts are being backfilled within the roadway
prism.
b. Embankments for roadways - one density test per 2,000 C.Y. of any
additional embankment(s); and one density test per 500 C.Y. when within
100 feet of bridge approaches."
c. Finished sub -grade - one density test per 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.
f. Concrete - Curb and Gutter, and Sidewalks - tests for air content, slump
and compressive strength per 50 C.Y. of concrete placed or minimum of
one set of tests per day.
1.3.3 Intentionally Omitted.
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
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.
1.3.6 As -Built Record Drawings of Subdivision Improvements. As -Built, record
drawings, sealed, signed and dated by a Registered Professional Engineer
showing the as -constructed horizontal and vertical locations of Subdivision
Improvements shall be submitted to the Eagle County Engineer prior to
completion of the two year warranty period and the final release of Collateral by
the County. This shall include as -built drawings in an electronic form acceptable
to the County Engineer.
1.3.7 Affidavit of Monumentation. An Affidavit of Monumentation sealed,
signed and dated by a Registered Professional Land Surveyor stating that the
subdivision has been monumented in accordance with §38-51-105, C.R.S. and
Chapter II, Section 5-280.5.a (1)(a) of the Eagle County Land Use Regulations,
shall be provided to the Eagle County Engineer prior to the acceptance of the
Subdivision Improvements by the County.
1.4 Intentionally omitted.
1.5 Date of Completion. All Subdivision Improvements shall be completed as follows:
1.5.1 All Subdivision Improvements shall be completed prior to December 31, 2018.
1.6 Approval and Acceptance of Work.
1.6.1 Copies of all test results corresponding to work which is being inspected
and any other information which may be necessary to establish the satisfactory
completion of the work for which inspection is requested must be submitted prior
to said inspection. All such information shall be accompanied by a letter from the
Subdivider's engineer verifying the satisfactory completion of the work performed
to date.
1.6.2 Notwithstanding Section 1.3.3 above, promptly after receiving a request for
inspection and the required documentation, the County Engineer shall review the
information presented and, if necessary, make an on-site inspection of the work
completed.
1.6.3 All said work shall be done to the reasonable satisfaction of the County
Engineer and/or the County Director 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 $56,822.50 as set forth on 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.
1.8 Traffic Control Plan. Subdivider agrees to submit a traffic control plan to be
approved by the Eagle County Engineering Department prior to any work commencing.
1.9 Intentionally Omitted.
2. SECURITY and COLLATERAL.
2.1 Collateral. Security and Collateral required in Section 1.7 herein, as security for the
performance by Subdivider of its obligations under this Agreement, shall be in the total amount
of $56,822.50. Prior to the issuance of any grading or building permits for or commencement of
construction of any of the Subdivision Improvements, the Subdivider will provide the County, in
form and substance acceptable to the County Attorney, collateral in the form of an irrevocable
Letter of Credit (the "Collateral").
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 (10%) of the original Collateral, shall be released. Subdivider shall be responsible
for the condition of the Subdivision Improvements for a period of two (2) years after completion;
this shall be guaranteed either through the retention of Collateral, as set forth above, or
Subdivider may provide a substitute form of Collateral, as set forth in Section 2.4 hereunder.
2.4 Substitution of Collateral. The Subdivider may, at any time, substitute the Collateral
originally deposited with the County herein, for another form of collateral acceptable to the
County Attorney, to guarantee the faithful completion of the Subdivision Improvements referred
to herein and the performance of the terms of this Agreement. At the time of substitution of
collateral, an inflationary and/or deflationary factor based upon the Denver -Boulder, Colorado
Consumer Price Index for All Urban Consumers, All Items (1967=100) published by the U.S.
Bureau of Labor Statistics, 303-837-2467, or, alternatively, an approved construction cost index,
shall be used to determine an adjusted estimated cost for all Subdivision Improvements as
described herein, and collateral shall be submitted by the Subdivider in accordance therewith.
2.5 Draws. Draws against the Collateral shall only be made as directed by written
Resolution of the County, stating that there has been an event of default under this Agreement
and that a sum certain is required to remedy the default. Any amount drawn on the Collateral
must be applied for the purpose of completing the work required by this Agreement and related
expenses and costs.
2.6 Events of Default. The following events shall be deemed "Events of Default,"
entitling the County to draw on the Collateral:
2.6.1 If Subdivider has not completed the work required by this Agreement within thirty
(3 0) days prior to the Date of Completion set forth herein, the County may, after ten (10)
working days written Notice to Subdivider, draw upon the Collateral an amount sufficient
to complete said work and compensate the County for its reasonable costs and expenses
related to said draw.
2.6.2 If the original Collateral presented to the County (or any extension thereof) is due
to expire and the work is not yet completed, and Subdivider has not provided substitute
collateral or the bank's written extension to the original collateral (as it may have been
previously extended), the County shall draw on the Collateral according to the provisions
set forth in this Section 2. It is Subdivider's responsibility, with or without notice, to
ensure that the Collateral is extended, or that substitute collateral is provided in a
form acceptable to the County, at least ten days prior to its expiration. If Collateral
is neither extended nor substitute collateral provided, in a form acceptable to the
County Attorney, at least ten days prior to its expiration, the developer shall pay the
County an additional $500 (Five hundred dollars) for the additional administrative
work required because of the failure to extend or substitute Collateral in a timely
manner as required by this Agreement.
2.6.3 If the Collateral is substituted, as otherwise provided herein, this Agreement 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 reasonable costs and expenses,
including but not limited to reasonable third -party 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 Intentionally Omitted.
3. INSURANCE and INDEMNIFICATION.
3.1 Indemnification. Subdivider shall indemnify and hold the County harmless from any
and all claims made against the County by any contractor, subcontractor, materialmen,
employee, independent contractor, agent or representative involved in the work necessary to
comply with this Agreement, or on account of any other claims against the County because of
the activities conducted in furtherance of the terms of this Agreement. This indemnification and
hold harmless provision shall include any reasonable and customary legal expenses or costs
incurred by the County. Notwithstanding the foregoing, the Subdivider shall not be liable to
indemnify the County for claims caused by the act or omission of the County without regard to
the involvement of the Subdivider.
3.2 Certificates of Insurance. The Subdivider shall secure from any contractor or
subcontractor engaged in the work necessary to comply with this Agreement a Certificate of
Insurance providing for liability protection in the minimum amount of $350,000 per individual
and $999,000 per occurrence, naming the County as an additionally named insured. The
Subdivider, if it serves as the contractor for the Subdivision Improvements, shall provide
insurance in the same form and amounts as required of the general contractor. Said limits shall
be adjusted to comply with any changed limits in the Colorado Governmental Immunity Act,
Title 24, Article 10, Colorado Revised Statutes.
3.3 County Incurs No Liability. Unless caused by the acts or omissions of the County
without regard to the involvement of the Subdivider, the County shall not, nor shall any officer
or employee thereof, be liable or responsible for any accident, loss or damage happening or
occurring to the Subdivision and/or Subdivision Improvements specified in this Agreement prior
to the completion and acceptance of the same; nor shall the County, nor any officer or employee
thereof, be liable for any persons or property injured or damaged by reasons of the nature of said
work on the Subdivision Improvements, but all of said liabilities shall be and are hereby assumed
by the Subdivider. The Subdivider hereby agrees to indemnify and hold harmless the County
and any of its officers, agents and employees against any losses, claims, damages or liabilities for
which the County or any of its officers, agents, or employees may become subject to, insofar as
any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon any performance or nonperformance by the Subdivider hereunder; and the
Subdivider shall reimburse the County for any and all reasonable and customary 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. Nothing in this Agreement shall constitute a waiver by
the County of its governmental immunity under State or Federal common law or statute. This
indemnification shall not apply to claims by third parties against the County to the extent that the
County is liable to such third party for such claims without regard to the involvement of the
Subdivider.
4. GENERAL PROVISIONS.
The following shall apply to all Subdivision Improvements, including off-site improvements, set
forth in this Agreement:
4.1 Compliance with Eagle County Land Use Regulations. The Subdivider shall be
required to obtain all necessary permits and comply with the applicable provisions of the Eagle
County Land Use Regulations, including but not limited to the Regulations for Construction
within the Public Ways of Eagle County (Chapter V), as the same are in effect at the time of
commencement of construction of the Subdivision Improvements referred to herein.
4.2 Subdivision Improvement Agreement Controls. In the event of any inconsistency or
incongruity between the provisions of this Agreement and the Eagle County Land Use
Regulations, the provisions of this Agreement shall in all respects govern and control.
4.3 Warranties and Guarantees. There shall be a two-year correction period, or such
longer period as may be prescribed by law, from the time of completion of the Subdivision
Improvements during which time the Subdivider shall promptly correct or remove and replace, in
accordance with the County's written instructions, defective work or materials and consequences
thereof. Repair or replacement made under the two-year correction period shall bear an
additional one-year correction period from the acceptance of the repair or the replacement by the
Eagle County Engineer. The work shall be collateralized during the correction period in an
amount and type of collateral as shall be reasonably determined by the County. The work shall
be inspected, at the request of the Subdivider, no less than sixty (60) days prior to expiration of
the one-year additional correction period, and any deficiencies shall be noted to the Subdivider.
4.4 Approval of Final Plat. The County agrees to the approval of the final plat of this
Subdivision, subject to the terms and conditions of this Agreement.
4.4.1 Final Plat Amendments. Where field changes or other circumstances have caused
the road, utilities, or other subdivision improvements to be constructed in locations
different from those shown on the approved plans, the locations of rights-of-way,
easements, lot lines, building envelopes, setback lines, or other attributes shown on the
Final Plat shall be amended as necessary to comply with Final Plat requirements of the
Eagle County Land Use Regulations
4.5 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.
4.6 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 unreasonably withheld, conditioned or delayed.
4.7 Binding upon Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors, and assigns.
4.8 Sole Responsibility of Subdivider Prior to Counter tp ance. It is further agreed
and understood that at all times prior to the completion and acceptance of the off-site
Subdivision Improvements set forth herein by the County, if any, each of said improvements not
accepted as complete shall be under the sole responsibility and charge of the Subdivider. When
it is necessary to allow the general public to utilize the roadways under construction by the
Subdivider, traffic control and warning devices shall be placed upon such roadways by the
Subdivider in accordance with the Manual on Uniform Traffic Control Devices for Streets and
Highways as prepared by the U.S. Department of Transportation, Federal Highway
Administration.
4.9 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.
4.10 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
registered mail, return receipt requested.
4.11 Enforcement and Attorney Fees. The County may enforce the provisions of this
Agreement in the same manner and with the same remedies applicable to the enforcement of
land use regulations pursuant to the Eagle County Land Use Regulations, as they may be
amended from time to time, or as otherwise provided by law. Alternatively, the terms of this
Agreement may be enforceable by the Board of County Commissioners or its designee by any
appropriate equitable or legal action, including but not limited to specific performance,
mandamus, abatement or injunction. The remedies explicitly provided herein are cumulative,
and not exclusive, of all other remedies provided by law. The prevailing party in any action
brought pertaining to this Agreement shall be entitled to an award of costs and reasonable
attorney fees.
4.12 Force Majeure. Whenever a party is required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into account an
event of "Force Majeure." "Force Majeure" is any event or cause not within such party's
reasonable control that prevents, delays, retards or hinders a party's performance of its duties
hereunder, including, without limitation, act of God; fire; earthquake; flood; casualty; vandalism;
inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the
open market; failure of transportation; strikes; lockouts; litigation; condemnation; requisition;
governmental, utility or quasi -governmental authorities; or any similar cause.
IN WITNESS WHREOF, the parties hereto have executed this Agreement this` I
day of Ve W=ZZ/l, �el , 2017.
o`� 0C
ATTEST:
C,
a°
P.P.
Regina O'Brien, Clerk to the Board o
County Commissioners
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
F6,16". .111
By:
Chair
Address for giving notice:
P.O. Box 850
Eagle, CO 81631
Phone: (970) 328-8685
ONERS
SUBDIVIDER:
3010 BASINGDALE, LLC, a Colorado
limited liability company
By:
Name:
Title:
Address for giving notice:
2121 N Frontage Road W #206
Vail, CO 81657-4957
Phone: (970) 376-5444
STATE OF COLORADO )
ss:
County of Eagle )
The fore ng was acknowledged before me this 6wday of �r-� be4 ` , 2017,
by fiVJCV'Ct.Q.� asAA Q,t/\ a, eft of 3010 Basingdale, LLC, a
Colorado limited liability company.
WITNESS my hand and official deal.
My commission expires 3 1,2 8;IQ'2=1 d�
Notary Public
LARAINE THERESA SIEFERS
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134019677
MY COMMISSION EXPIRES MARCH 29, 2021
10
SLOPESIDE CONSTRUCTION, INC., a
Colorado corporation
By:
Name: �'�'• ���
Title:
Address/�or giving notice;, O
VO!' �1 z
STATE OF COLORADO )
ss:
County of Eagle )
The fore of g was acknowledged before me this LLday of �i�-��-fiL , 2017,
by Iryl C' �Q Cc E as F6) d e4/1,+- , of Slopeside Construction, Inc., a
Colorado corporation.
WITNESS my hand and official seal.
My commission expires 302 0'o? 1 j� "_�
Notary Public
LARAINE THERESA SIEFERS
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134019677
MY COMMISSION EXPIRES MARCH 28, 2021
11
EXHIBIT A
ESTIMATED COST OF SUBDIVISION IMPROVEMENTS
First Amendment to Boulders Subdivision
Preliminary Engineer's Opinion of Probable Costs
Public Improvements
Eagle County File No. SUF-7165
11/22/2017
ITEM DESCRIPTION
Quantity
Units
Unit Price
Amount
Drainage
i
Install Drainage Ditch
385
LF
$
3.00
$
1,155.00.
2
Seeding
0.27
AC
$
4,500.00
$
1,215.00
Subtotal
$
2,370.00
Sewer
3
Install 8" C900 Sewer Line
315
LF
$
54.00
$
17,010.00.
4
Install 8" Yelomine Sewer Line, Directional Bore
1
EACH
$
4,000.00
$
4,000,00,
5
Install Sewer Manholes
4
EACH
$
3,600.00
$
. 14;400:00
Subtotal
$
35,410.00
Erosion Control
6
install Straw Wattles
8
EACH
$
60.00
$
480:00
7
Install and Maintain Slit Fence
425
LF
$
.2.50
$
1062.50
Subtotal
$
1,542.50
Total Phase 1
$
39;322.50
ITEM
DESCRIPTION
Quantity
Units
Unit Price
Amount
Draina .e
s
Install Drainage Ditch
165
LF
$
3.00
$
495.00
9
Seeding
0.05
AC
$
4,500.00
$
225.00
Subtotal
$
720.00
Sewer
10
instal) 8" C900 Sewer Line
140
LF
$
54.00
$
7,560.00
ii
Install Sewer Manholes
1
EACH
$
3,600.00
$
3,600.00
Subtotal
$
11,160.00
Erosion Control
12
Install Straw Wattles
4
EACH
$
60.00
$
240.00
13
Install and Maintain Silt Fence
152
LF
$
2.50
$
380.00
Subtotal _
$
_ 620.00
Total Phase 2
$
12,500.00
Contingency
$
S,000.00
Total of Phase 1.. and Phase 2
$
56,822.50
;r 32492
�&26N-
12
