HomeMy WebLinkAboutC24-463 OI Tag Beaver Creek_Arcadian on Beaver Creek - SIA File No. SMA-9408-2023Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 Eagle County, CO 202414271 Regina O'Brien 11/19/2024 Pgs: 12 04:56:49 PM REC: $0.00 DOC: $0.00 SUBDIVISION AND OFF -SITE IMPROVEMENTS AGREEMENT .ARCADIAN ON BEAVER CREEK SUBDIVISION FINAL PLAT File No. SMA-9408-2023 THIS SUBDIVISION AND. OFF -SITE IMPROVEMENTS AGREEMENT ("Agreement") is made and entered into this 11/19/2024 , by and between OI Tag Beaver Creek, LLC (hereinafter the "Subdivider") and the County of Eagle, State of Colorado (hereinafter the "County"). WITNESSETH WHEREAS, the Subdivider, as a condition of approval of the Final Plat of the Arcadian on Beaver Creek Subdivision (hereinafter referred to as "Subdivision"), desires an Agreement as provided for by Section 5-290.C.1.i of the Eagle County Land Use Regulations (hereinafter referred to as "Land Use Regulations") 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, including but not limited to off-siteimprovements, as referenced in the attached Exhibit A (hereinafter the "Subdivision Improvements"); and _ WHEREAS, pursuant to Section 4-620 of the 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, 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 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, including but not limited to the off -site improvements, referred to herein; and WHEREAS, pursuant to Section 4-620.J.9 of the 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 promises and the covenants and agreements herein contained to be kept and performed by the parties hereto, it is hereby understood and agreed as follows: Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 1. SUBDIVISION IMPROVEMENTS. 1.1 Subdivision Improvements. Subdivision Improvements are deemed to include all public improvements, including but. not limited to off -site improvements as set forth in all documents, construction drawings - for the Arcadian on Beaver Creek Subdivision signed and stamped on June3,2024, designs, maps, specifications, sketches, cost estimates, and other materials submitted by the Subdivider prior to or at final plat approval and accepted by the County. Such subdivision improvements shall include roads, utilities, and -other similar public improvements as set forth in Exhibit A. 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 the acquisition of all necessary rights -of -way and easements. 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 Transportation 2024 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. Roadway - horizontal and vertical control every 50 feet or every 25 feet in critical areas, specifically 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 only, the following is a highlighting of the acceptance testing that will be required of the Subdivider: 2 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 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, Sidewalks and Bikepaths - 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 Notification/Road Construction. Subdivider or its 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; and (4) concrete, curb and gutter, sidewalks and bikepaths. The County Engineer or his designee shall snake 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 or his designee shall in no way abrogate the duties of the Subdivider outlined elsewhere in this Agreement. 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 acceptance of the Subdivision Improvements by the County. In addition to witnessing 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. Benchmarks 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. 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 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 C.R.S. § 38-51-105, C.R.S and 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 Compliance with the Colorado Department of Transportation Access Code. Subdivider shall provide the County with designs in compliance with the Colorado Department of Transportation Access Code for all road improvements. 1.5 Date of Completion. Construction is anticipated to continence in late 2024. Project completion is October 1, 2027. Improvements required by SIA will be completed prior to the issuance of the first certificate of occupancy for residential units located on the subdivided parcels. The roadway identified on the construction plans as the Golf Maintenance Access Drive, providing access to Units 8-12, shall be widened to the satisfaction of the County Engineer prior to the commencement of any construction of those dwelling units to allow for adequate access in accordance with the Eagle County Land Use Regulations. 1.6 Approval and Acceptance of Work. 1.6.1 Copies of all test results corresponding to work that is being inspected and any other information that 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 or his designee 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 Department of Community Developmentand 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 $231,205, as set forth in Exhibit A. To secure and guarantee the 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. 4 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 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 Maintenance of Subdivision Improvements. The Subdivider and/or future homeowners association shall be responsible for the maintenance, repair, and replacement of the Subdivision Improvements. 2. SECURITY AND COLLATERAL. 2.1 Subdivision Improvements Collateral. In order to ensure installation of the necessary Subdivision Improvements, including all public improvements planned to accommodate the development, the Subdivider shall provide no less than one hundred percent (100%) of the current estimated cost of such Subdivision Improvements, as estimated by the County Engineer. The security and collateral for the Subdivision Improvements 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 $231,205 (the "Subdivision Improvements Collateral"). Upon execution of this Agreement, the Subdivider will provide the County the Subdivision Improvements Collateral in the form of an irrevocable Letter of Credit, in a form acceptable to the County Attorney. 2.2 Partial Release of Subdivision Improvements Collateral. Subdivider may apply to the County for.the release of portions of the Subdivision Improvements 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 Subdivision Improvements 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 Subdivision Improvements Collateral, less an amount equal to ten percent (10%) of the original Subdivision Improvements 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 10% of the total Subdivision Improvements Collateral, as set forth above, or Subdivider may provide a substitute form of Subdivision Improvements Collateral as set forth in Section 2.4 below. 2.4 Substitution of Subdivision Improvements Collateral. The Subdivider may at any time substitute the Subdivision Improvements. 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 (1067=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. 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 2.5 Draws. Draws against the Subdivision Improvements 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 Subdivision Improvements 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 Subdivision Improvements Collateral: 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 Subdivision Improvements 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 Subdivision Improvements 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 Subdivision Improvements Collateral according to the provisions set forth in this Section 2. It is Subdivider's responsibility, with or without notice, to ensure that the Subdivision Improvements 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 Subdivision Improvements 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 Subdivision Improvements Collateral in a timely manner as required by this Agreement. 2.6.3 If the Subdivision Improvements 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 Subdivision Improvements Collateral, or in accomplishing an extension of its expiration. 3. INSURANCE AND INDEMNIFICATION. 3.1 Indemnification. Subdivider shall defend, 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. 6 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 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 $424,000 per individual and $1,195,000 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. 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 defend, 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 iminunity under State or Federal common law or statute. 4. GENERAL PROVISIONS. The following shall apply to all Subdivision Improvements, including off -site 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 any applicable 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 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 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 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 rp for 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 Sole Responsibility of Subdivider Prior to County Acceptance. 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, 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. 8 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 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 saine 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 19th day of November 72024. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST. BOARD OF COUNTY COMMISSIONERS LSigned by: .. .. Signed by: . e9F9.nfi896d40 By.: Clerk to the Board of Matt c err, air County Commissioners Address .for giving notice: P.O: Box 850 Eagle, CO 81631 (970) 328-8685 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 EXHIBIT A Estimated Cost of Subdivision Improvements 11 202414271 Docusign Envelope ID: 2CDCOOB7-DD38-4625-95B8-A95A4266A5D1 Exhibit A The Arcadian at Beaver Creek ALPINE Subdivision .Improvement Agreement- Cost Estimate July.9, 2024 ENGINEERING INC. ITEM: DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL SITE DEMO Mill existing asphalt drive SF 8616 $ 1H $ 19,386.00 Remove Concrete_. Columns along Drive EA 8 $. 1,500.00 $ 12,000.00 TOTAL DEMO $ 31,386.00 SITE Asphalt widen- (4" deep) TN 38 $ 180.00 $ 6,840.00 Asphlat overlay- (2") TN 138 $ 160.00 $ 22,080.00 Basecourse TN 48 $ 48.00 $ 2,304.00 boulder walls SF 290 $ 35.00 $ 10,150.00 Erosion log wattles LF 350 $ 2.00 $ 700.00 Revegetation LS 1 $ 4,000.00 $ 4,000.00 TOTAL SITE $ 46,074.00 UTILITY (all:private) STORM Concrete Headwall LS 1 $ 20,000.00 $ 20,000.00 4' dia. Concrete Manhole EA 2 $ 4,800.00 $ 9,600.00 36" Slide Gate EA 1 $ 3,000.00 $ 3,000.00 36" HDPE Flared End Section EA 1 $ 500.00 $ 500.00 36" HDPE Storm LF 274 $ 95.00 $ 26,030.00 36" Nyloplast inlet. EA 1 $ 1,500.00 $ 1,500.00 ADS Stormceptor Infitration Chambers LF 66 $ 250.00 $ 16,500.00 12" HDPE Storm LF 1 680 $ 60.00 $ _ 40,800.00 12" HDPE Flared End Sections EA 5 $ 500.00 $ 2,500.00 12" Nyloplast Storm inlets EA 15 $ 1,200.00 $ 18,000.00 6" PVC Storm LF 399 $ 35.00 $ 13,965.00 6" Nyloplast drop in grates EA 3 $ 150.00 $ 450.00 Riprap Blanket EA 1 $ 900.00 $ 900.00 TOTAL STORM $ 153,745.00 Ile 3.takeor does not include engineering, Roly Gross Energy material fees ; ce as material ees, ommunica i, serial fees, tap fees, materials testing, Surveying, Construction Admin., Permit Fees, Town Fees, irrigation; off-: ty upgrades, or other off -site improvements. The actual cost may vary significantly based upon final design, ling and disposal of excess materials, amount of unsuitable material encountered, the cost and availability of )r, equipment, material and market conditions. .202414271