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HomeMy WebLinkAboutC23-108 SIA Northstar PUD File No. AFP-9309-2022DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 Eagle County, CO 202303653 Regina O'Brien 04/04/2023 Pgs: 11 02:02:25 PM REC: $0.00 DOC: $0.00 SUBDIVISION IMPROVEMENTS AGREEMENT FOR NORTHSTAR CENTER PLANNED UNIT DEVELOPMENT File No. AFP-9309-2022 THIS SUBDIVISION IMPROVEMENTS AGREEMENT ("Agreement") made and entered into on 4/4/2023 by and between Eagle River Real Estate Holdings, LLC, a Colorado limited liability company (hereinafter "Subdivider"), and the Board of County Commissioners of the County of Eagle, State of Colorado (hereinafter "County"). WITNESSETH WHEREAS, the Subdivider, as a condition of approval of the Amended Final Plat of the Northstar Center Planned Unit Development (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 "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 as referenced in the attached Exhibit A (hereinafter the "Subdivision Improvements"). WHEREAS, as a further condition of approval of the amended 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 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 to be collateralized are set forth in the attached Exhibit A and include the following: 1.1.1 In accordance with the Northstar Center Planned Unit Development ("PUD") Agreement, and the Northstar Center PUD Guide, landscape improvements ("Landscape Improvements") are as depicted on landscape plans submitted by the Subdivider as an element of the Northstar Center PUD Amendment application ("Landscape Plan"). The Landscape Plan complies with the Land Use Regulations, Section 4-240, Installation and Maintenance Requirements, and the Subdivider agrees to comply with the Landscape Plan. Landscape Improvements include material and installation costs for soil preparation, irrigation, native seed mix, planting beds, trees and shrubs, boulders, bollards, table and seating areas, and mulch. DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 1.1.2 One thousand five hundred seventy-one (1,571) square feet of metal panel/fence to be installed at top of the retaining wall along south side of the Northstar Center PUD property ("Fencing"). 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 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 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 and easements. 1.3 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 Land Use Regulations shall be provided to the Eagle County Engineer prior to the acceptance of the Subdivision Improvements by the County. 1.4 Date of Completion. All Subdivision Improvements shall be completed prior to December 31, 2024. 1.5 Approval and Acceptance of Work. 1.5.1 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. 1.5.2 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. 1.5.3 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. 1.6 Estimated Costs of Subdivision Improvements. The estimated cost of the Subdivision Improvements is the sum of $525,657 as set forth on Exhibit A. representing the sum of $407,832 for Landscape Improvements and the sum of $117,825 for Fencing. 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 amount of $627,615 and in the form as set forth in Section 2, below. 1.7 Maintenance of Subdivision Improvements. The Subdivider and/or any future owner shall be responsible for the maintenance, repair and replacement of the Subdivision Improvements. 2 DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 2. SECURITY and COLLATERAL FOR SUBDIVISION IMPROVEMENTS. 2.1 Landscape Plan Collateral. 2.1.1 Within 10 days of execution of this Agreement, and prior to issuance of any grading or building permits for or commencement of construction of any Subdivision Improvements, Subdivider agrees to provide the County with collateral in the form of an irrevocable letter of credit from Alpine Bank acceptable to the County Attorney to ensure the Landscape Improvements will be installed according to the approved Landscape Plan (the "Landscape Plan Collateral"). Subdivider agrees to provide collateral for no less than one hundred twenty five percent (125%) of the estimated cost of the Landscape Improvements listed in the approved Landscape Plan, based on the cost estimate provided by the Subdivider and approved by the County, as set forth in Exhibit A and Section 1.1.1 above. The Landscape Plan Collateral shall be in the amount of $509,790. 2.1.2 As portions of the Landscape Improvements are completed, the Community Development Director shall inspect them, and upon approval and acceptance, shall authorize the release of the Landscape Plan Collateral for that portion of the improvements, except that ten percent (10%) shall be withheld until all proposed Landscape Improvements are completed and approved, and an additional twenty-five percent (25%) shall be retained until the Landscape Improvements have been maintained in a satisfactory condition for two (2) years. 2.1.3 Following installation of the required Landscape Improvements, the Subdivider shall certify the landscaping has been installed in conformance with the approved Landscape Plan. Ten percent (10%) of the Landscape Plan Collateral shall be released within ten (10) working days following receipt of the certification and inspection by the County. Twenty- five percent (25%) of the Landscape Plan Collateral shall be released within ten (10) working days following receipt of certification and inspection by the County that the Landscape Improvements have been maintained in a satisfactory condition for two (2) years. 2.1.4 Draws. Draws against the Landscape Plan 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 Landscape Plan Collateral must be applied for the purpose of completing the work required by this Agreement and related expenses and costs. 2.1.5 Events of Default. The following events shall be deemed "Events of Default," entitling the County to draw on the Landscape Plan Collateral: 2.1.5.1 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 Landscape Plan Collateral an amount sufficient to complete said work and compensate the County for its reasonable costs and expenses related to said draw. 3 DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 2.1.5.2 If the original Landscape Plan 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 Landscape Plan Collateral according to the provisions set forth in this Section 2. It is Subdivider's responsibility, with or without notice, to ensure that the Landscape Plan 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 Landscape Plan 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 the Landscape Plan Collateral in a timely manner as required by this Agreement. 2.1.5.3 If the Landscape Plan 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. 2.1.6 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 Landscape Plan Collateral, or in accomplishing an extension of its expiration. 2.2 Fencing Collateral. 2.2.1 Within 10 days of execution of this Agreement, and prior to issuance of any grading or building permits for or commencement of construction of any Subdivision Improvements, and in order to ensure installation of the Fencing, the Subdivider shall provide no less than one hundred percent (100%) of the current estimated cost of such Fencing. The security and collateral as security for the performance by Subdivider of its obligations for installation of the Fencing under this Agreement, shall be in the total amount of $117,825 (the "Fencing Collateral"). Upon execution of this Agreement, the Subdivider will provide the County the Fencing Collateral in the form of an irrevocable letter of credit from Alpine Bank, in a form acceptable to the County Attorney. The Landscape Plan Collateral and the Fencing Collateral may be combined into one letter of credit. 2.2.2 Partial Release of Fencing Collateral. Subdivider may apply to the County for the release of portions of the Fencing 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 1.5. 2.2.3 Final Release of Fencing 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 Fencing Collateral, less an amount equal to ten percent (10%) of the original Fencing Collateral, shall be released. Subdivider shall be responsible for the condition of the Fencing for a period of two years after 4 DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 completion; this shall be guaranteed either through the retention of 10% of the total Fencing Collateral, as set forth above, or Subdivider may provide a substitute form of Fencing Collateral as set forth in Section 2.2.4 below. 2.2.4 Substitution of Fencing Collateral. The Subdivider may at any time substitute the Fencing Collateral originally deposited with the County herein, for another form of collateral acceptable to the County Attorney, to guarantee the faithful completion of the Fencing 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. 2.2.5 In the event the Fencing contained in the cost estimate approved by the County is not installed or is installed in a manner that does not conform with the approved plans, the County may draw on the Fencing Collateral in the same manner as provided for in Section 2.1.4 and 2.1.5 above to bring the Fencing into conformance with the approved plans. 2.2.6 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 Fencing Collateral, or. in accomplishing an extension of its expiration. 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 by or on behalf of the Subdivider 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 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 Liabilitx. 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 5 DocuSign Envelope ID: 68257B4F-8939-4FD0 AFFB-2F53BF5A9501 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 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. Nothing in this Agreement shall constitute a waiver by the County of its governmental immunity under State or Federal common law or statute. 4. GENERAL PROVISIONS. The following shall apply to all Subdivision Improvements set forth in this Agreement: 4.1 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, as well as the Regulations for Construction within the Public Ways of Eagle County, 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 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 Land Use Regulations no DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 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. 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 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. 4.9 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. 4.10 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 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 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. [signature pages follow] 7 DocuSign Envelope ID: 68257B4F-89394FD0-AFFB-2F53BF5A9501 IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 41h day of April, 2023. ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS EL�: ed by: Lh; Signed by: 0-111 - . �_I _.__Matt scherr, !A By: &J.7 vice chair Cler tote oard of Kathy an er=Henry, Chair County Commissioners Address for giving notice: P.O. Box 850 Eagle, CO 81631 (970)328-8685 DocuSign Envelope ID: 68257B4F-8939-4FD0-AFFB-2F53BF5A9501 SUBDIVIDER: EAGLE RIVER REAL ESTATE HOLDINGS, LLC, a Colorado limited liability company By: Vail Clinic, Inc., a Colorado nonprofit corporation d/b/a Vail Health, its Manager and Sole Member By: Wa �k Name: Uo rof• Title: d LEv t Vatl P&Ath- Address for giivving notice: STATE OF COLORADO SS County of / `ore�oin instrument was cknowled ed before me this23 day of CO(O l 2023, by � �t r 16D of Vail Clinic, Inc., a Colorado nonprofit corporation d/b/a Vail Health as Manager and Sole Member of Eagle River Real Estate Holdings, LLC, a Colorado limited liability company. WITNESS my hand and official seal. DocuSlgn Envelope ID: 68257B4F-8939-4FD0 AFFB-2F53BF5A9501 EXHIBIT A Subdivision Improvements 10 DocuSign Envelope ID: 68257B4F-6939-4FD0-AFFB-2F53BF5A9501 BEHAVIORAL HEALTH INPATINENT HOSPITAL Schematic Design Estimate Ref Description Unit city Rate USD Total Cost USD Landscaping 69 Native seed - soil amendment - 4 CY/1 000 SF SF 16.117 0.28 4,513 57 Native seed BY 1,791 1.80 3,224 58 Native seed - irrigation SF 16,117 1.50 24,176 63 Planting beds -scarify existing subgrade at planting beds SY 1,093 2.30 2.514 64 Planting beds - topsoil .6'deep CY 183 65.00 11,895 65 Planting beds including plantings, mulch, edgers, etc. SF 9.835 6.00 59.010 66 Planting beds - irrigation SF 9,835 1.50 14,753 67 Deciduous tree - 2-1/2" caliper EA 44 550.00 24,200 68 Ornamental tree EA 4 475.00 1,900 160 Evergreen tree EA 36 675.00 24,300 94 Landscape boulder EA 49 360.00 17,640 155 Polymer bound aggregate - scarify and recompact subgrade-12'deep SY 1,344 2.30 3,091 154 Polymer bound aggregate paving- aggregate base course -6'deep CY 224 35.00 7,840 95 Polymer bound aggregate paving SF 12,092 16.50 199.518 99 lmrganic mulch SF 3,086 3.00 9,258 subtotal 407,832 Metal Panel Site Wall 510 Metal Panel applied to Site Wall SF 1,571 subtotal 75.00 117,825 117,825 Total Improvments Estimate 525,657