No preview available
HomeMy WebLinkAboutC22-075 Development Agreement_Newby Aggregate_ZS-9075-2019DocuSign Envelope ID: 15F240F2-EO7C-4E7C-BA6B-ECt)BICA837E8 Eagle County, CO 202203904 Regina O'Brien 03/08/2022 Pgs: 8 02:17:37 PM REC: $0.00 DOC: $0.00 DEVELOPMENT AGREEMENT FOR NEWBYAGGREGATE RECYCLING FACILITY File No. ZS-9075-2019 3/8/2022 This Development Agreement ("Agreement") made and entered into this on , by and between Eagle River Materials, LLC (hereinafter "Permit Holder") and the Board of County Commissioners of the County of Eagle, State of Colorado (hereinafter "County"). WITNESSETH WHEREAS, the Permit Holder, as a condition of approval of the Special Use Permit for Newby Aggregate Recycling Facility (hereinafter referred to as "Newby"), desires an agreement as provided for by the Land Use Regulations of Eagle County, Colorado, 1999, as amended ("hereinafter referred to as "Land Use Regulations") Chapter III, Section 5-250.F.; and WHEREAS, pursuant to the same authority, the Permit Holder is obligated to provide collateral sufficient in the judgment of the County to make reasonable provisions for completion of certain landscape improvements hereinafter described ("Landscape Improvements"); and WHEREAS, pursuant to Chapter III, Section 5-250 of the Land Use Regulations, as a condition for granting either a Final or Consolidated Special Use Permit, the Permit Holder may be required to post a performance guarantee in an amount sufficient to insure completion of the development or required public improvements, including landscaping or any required off -site improvements; and WHEREAS, in such a case, the Permit Holder shall file with the Planning Director a surety or cash bond, letter of credit, or other collateral recommended by the County Engineer and approved by the County Attorney; and WHEREAS, the collateral shall be approved by the Board of County Commissioners to insure the actual construction of such development or required improvements within such period of time as may be determined by the Board of County Commissioners; and WHEREAS, the Board of County Commissioners did approve the collateral in the amount specified below to ensure that the subject property on which the Special Use Permit was granted is landscaped and returned to the approved reclaimed condition when the Special Use Permit expires. 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. LANDSCAPE IMPROVEMENTS. DocuSign Envelope ID: 15F24OF2-Eo7C-4E7C-BA6B-ECDB1CA837E8 1.1 Landscape Improvements. Landscape Improvements are deemed to include all improvements, including but not limited to off -site improvements as set forth in all documents, construction drawings, designs, maps, specifications, sketches, cost estimates and other materials submitted by the Permit Holder prior to grading permit issuance and accepted by the County. Such landscape improvements shall include demolition and earthwork as specified by the County Engineer. 1.2 Scope of Work. The Permit Holder hereby agrees, at its sole cost and expense, to furnish all necessary equipment and materials, and to complete all Landscape Improvements as referenced in the attached Exhibit A, and as set forth in all documents, construction drawings, designs, maps, specifications, sketches, and other materials submitted by the Permit Holder prior to or at special use 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. 1.3 Date of Completion. All Landscape Improvements shall be completed one year after the special use permit expires. 1.4 Approval and Acceptance of Work. 1.4.1 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 Permit Holder's engineer verifying the satisfactory completion of the work performed to date. 1.4.2 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. 1.4.3 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. 1.5 Estimated Costs of Reclamation Improvements. The estimated cost of the Reclamation Improvements is the sum of $101,026.00, 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 Landscape Improvements, the Permit Holder hereby agrees to provide collateral in the form and as set forth in Section 2, below. 2. COLLATERAL. 2.1 Collateral. Collateral required in Section 1.5 herein, as security for the performance by Permit Holder of its obligations under this Agreement, shall be in the total amount of DocuSign Envelope ID: lSF240F2-EO7C-4E7C-BA6B-ECDBICA837E8 $101,026.00 (the "Collateral"). Prior to the issuance of any grading or building permits for or commencement of construction of any of the Landscape Improvements, the Permit Holder will provide the County, in form and substance acceptable to the County Attorney, Collateral in the form of an irrevocable Letter of Credit. 2.2 Partial Release of Collateral. Permit Holder 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, Permit Holder 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 1.4. 2.3 Einal Release of Collateral/Warranty. Within thirty (30) days after Permit Holder has completed all of the Landscape Improvements and work required by this Agreement, and such improvements and 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. Permit Holder shall be responsible for the condition of the Landscape Improvements for a period of two years after completion (the "Warranty Period"); this shall be guaranteed either through the retention of 10% of the total Collateral, as set forth above, or Permit Holder may provide a substitute form of Collateral as set forth in Section 2.4 below. Upon expiration of the Warranty Period, the County Engineer shall inspect the Landscape Improvements, and upon approval and acceptance, shall authorize release of the remaining 10% of the Collateral. 2.4 Substitution of Collateral. The Permit Holder 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 Landscape 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 Landscape Improvements as described herein, and collateral shall be submitted by the Permit Holder 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 Permit Holder has not completed the work required by this Agreement DocuSign Envelope ID: 15F240F2-EO7C-4E7C-BA6B-ECDBlCA837E8 within thirty (30) days prior to the Date of Completion set forth herein, the County may, after ten (10) working days written Notice to Permit Holder, 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 Permit Holder 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 Permit Holder'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. Permit Holder 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. 3. INSURANCE and INDEMNIFICATION. 3.1 Indemnification. Permit Holder 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 legal expenses or costs incurred by the County. 3.2 Cf:[Jicates of Insurance. The Permit Holder 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 Permit Holder, if it serves as the contractor for the Landscape Improvements, shall provide insurance in the same form and amounts as required of the general contractor. Said Iimits shall be adjusted to comply with any changed limits in the Colorado Governmental Immunity Act, Title 24, Article 10, Colorado Revised Statutes. DocuSign Envelope ID: 15F240F2-E07C-4E7C-BA66-ECDBiCA837E8 3.3 County Incurs No Liabili . 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 Special Use and/or Landscape 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 Landscape Improvements, but all of said liabilities shall be and are hereby assumed by the Permit Holder. The Permit Holder hereby agrees to indemnify and hold harmless the County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which the County or any of its officers, agents, or employees may become subject to, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any performance by the Permit Holder hereunder; and the Permit Holder 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 Permit Holder 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. 3.4 Governmental Immunity. County is relying on and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, defenses and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10- 101 et seq., as amended from time to time, or otherwise available to County or its officers or employees. 4. GENERAL PROVISIONS. The following shall apply to all Landscape Improvements set forth in this Agreement: 4.1 Compliance with Land Use Regulations. The Permit Holder shall be required to obtain all necessary permits and comply with the provisions of the Land Use Regulations, as the same are in effect at the time of commencement of construction of the Landscape Improvements referred to herein. 4.2 Landscape Agreement Controls. In the event of any inconsistency or incongruity between the provisions of this Agreement and the Land Use Regulations, the provisions of this Agreement shall in all respects govern and control. 4.3 Warranties and Guarantees. There shall be a two-year correction period, or such longer period as may be prescribed by law, from the time of completion of the Landscape Improvements during which time the Permit Holder 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 DocuSign Envelope ID: 15F240F2-r07C-4E7C-BA6B-ECDB1CA837E8 the County. The work shall be inspected, at the request of the Permit Holder, no Iess than sixty (60) days prior to expiration of the one-year additional correction period, and any deficiencies shall be noted to the Permit Holder. 4.4 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. 4.5 Assignability. This Agreement shall be enforceable against the Permit Holder, provided, however, that in the event the Permit Holder sells, transfers or assigns all or part of the subject Special Use, the obligations of the Permit Holder under this Agreement as to that portion of the subject Special Use may be assumed in writing by the purchaser of the use, and the Permit Holder 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 Permit Holder shall not otherwise assign, transfer, convey, pledge or otherwise dispose of this Agreement without prior written consent of the County, which consent shall not be unreasonably withheld. 4.6 Binding upon Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors, and assigns. 4.7 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. 4.8 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. 4.9 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 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. [The remainder of this page is intentionally left blank] DocuSign Envelope ID: 15F240F2-E07C-4E7C-BA6B-ECDB1CA837E8 IN WITNESS WHEREOF, the parties hereto have executed this agreement on 3/8/2022 ATTESi': COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS Doeu3Fpned by: Docuftned by: , in a I�vtt,�n, BY: "� " Clerk to the Board of Jeanne McQueeney, Chair County Commissioners Address for giving notice: P.O. Box 850 Eagle, CO 81631 (970) 328-8685 PERMIT HO LDER: , BY: � T Eagle River Materials, L C Representative: Bart Ew ng Address for giving notice: 289 Shelby Street Gypsum, CO 81637 STATE OF COLORADO ) ) SS County of) The oregoing mstru ent was acknowledged before me by , this t a of lyoile4m 20 WITNESS my hand and official seal. My commission expires c6' - I! Notary Public MARISELA VAZQUEZ STTARY ATE PUBLIC OF COL STTORADO NOTARY 10 20154010450 MY COWMASM E70'I O DECE1M IC 2023 | k El � . / n ❑ . LU k z 3 t w ■ f � k m c§ Lu z e £ 3 E a$ G o s E w LL kE \ § § £f k5 k § 22 0 �$ ) R 7 C ' AA 3% k c ac0 ® G§ <'� »f>� 2 @ w ,eM o 2 » % m&a mm _k E _ o g■� e ta& CLo �£ Ie_ �O@ o.< z < o e �t a4)aa ��� moo U£ _ oe _ t e0 I- ■ __ @e �o� o�� LL W e .- >�= 0) n o o EjE c>- ¥�xE ��� Ef �� o 6-£ 2 E g0LL S J��a ik§ §`8 =x[�[a ®�� �) ) �2�/2 ®q�� LU u D $#� g=c e �•�maa m�<-<, orr_ z22 LU >© § 2 & ±��6� m - - , o-2 °�__ <£�o %x« s �, 3_> 22� I� 533 �� a 3 £ o�Q�6 E_�=