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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
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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
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