HomeMy WebLinkAbout3.0 Subdivision Improvments Agreement 07.24.1996496233 B-986 P-496 07/24/96 12:22P PG 1 OF 17 REC DOC NOT
MILDRED ALSDORF GARFIELD COUNTY CLERK AND RECORDER 0.00
SUBDIVISION IMPROVEMENTS AGREEMENT
AND SITE SPECIFIC DEVELOPMENT PLAN
THIS AGREEMENT is made and entered into this /Q day of �o N Q , 1996,
by and between NORMAN E. CLASEN, LAURA B. CLASEN, and the SPRING CREEK
LAND COMPANY (hereinafter "Owners/Subdividers") and the BOARD OF COUNTY
COMMISSIONERS OF GARFIELIS COUNTY, COLORADO- (hereinafter "County'');
WITNESSETH:
WHEREAS, Owners/Subdividers are the owners and developers of certain real property
located within Garfield County, Colorado, to be known as the Cedar Hills Ranch Subdivision;
and
WHEREAS, the Preliminary Plan for the Cedar Hills Ranch Subdivision was approved
pursuant to Resolution 96-18; and
WHEREAS, Owners/Subdividers have submitted to the County for its approval the Final
Plat for Cedar Hills Ranch Subdivision ("Final Plat"), the property being more particularly
described in said Final Plat and on Exhibit A, attached hereto, both of which are incorporated
herein by reference; and
WHEREAS, as a condition of approval of the Final Plat and as required by the laws of
the State of Colorado, the Owners/Subdividers wish to enter into this Subdivision Improvements
Agreement with the County; and
WHEREAS, Owners/Subdividers have agreed to enter into a Disbursement Agreement
with the County to secure and guarantee the performance of this Agreement by
Owners/Subdividers, and have agreed to certain restrictions and conditions regarding the
issuance of building permits and certificates of occupancy, all as more fully set forth hereinafter.
NOW, THEREFORE, for and in consideration of the premises and the following mutual
covenants and agreements, the parties hereby agree as follows:
1. Final Plat Approval. The County hereby accepts and approves the Final Plat for
Cedar Hills Ranch Subdivision ("Subdivision"), subject to the terms and conditions of this
Agreement, as well as the terms and conditions of the Preliminary Plan approval, Resolution No.
96-18 and the requirements of the Garfield County Zoning and Subdivision Regulations.
2. Owners/Subdividers' Performance. Owners/Subdividers have constructed and
installed, or shall cause to be constructed and installed, at Owners/Subdividers' own expense,
those improvements set forth in Exhibit B, attached hereto and made a part hereof. Those
improvements shall be completed within one (1) year of the date of this Agreement.
Additionally, the Owners/Subdividers agree that those improvements shall be constructed in
compliance with the following:
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496233 B-986 P-497 07/24/96 12:22P PG 2 OF 17
a. All plat documents submitted prior to or at the time of the Final Plat approval as
set forth on those documents prepared by High Country Engineers, Glenwood
Springs,. Colorado, entitled "Cedar Hills Ranch," Job No. 95020.01 dated May
15, 1996, consisting of Pages 1 through 11.
b. All requirements of Resolution No. 96-18, including all requirements of the
Garfield County Zoning Code and Garfield County Subdivision Regulations;
c. All laws, regulations, orders, and resolutions of the County of Garfield, State of
Colorado, the United States, and any of the various agencies having jurisdiction,
affected= special- districts-, and municipalities providing- utility services-; and -
d. MI designs, maps, specifications, sketches, and other materials submitted to and
approved_ by any of the_ above -stated governmental entities.
The County agrees that if all improvements are installed in accordance with this Agreement, the
Final Plat documents, the requirements of the Garfield County Zoning Code, all other
requirements of this Agreement, and the requirements of the Preliminary Plan, then the
Owners/Subdividers shall be deemed to have satisfied all terms and conditions of the Zoning and
Subdivision Regulations of Garfield County, Colorado.
3. Security for Improvements.
a. Disbursement Agreement. Contemporaneously with the recordation of the Final
Plat with the Garfield County Clerk and Recorder, the Owners/Subdividers, the
County, and the Bank of Colorado—Western Slope ("Bank") shall enter into a
Disbursement Agreement, a copy of which is attached hereto as Exhibit C and
incorporated herein by this reference, which shall secure the performance of the
Owners/Subdividers' obligations herein. The Disbursement Agreement will
govern all security for improvements related to the Subdivision and shall set
forth, among other things, the establishment of improvement fund reserves,
disbursement procedures, and default procedures related thereto. Such
Disbursement Agreement shall operate in lieu of a letter of credit in regard to
securing subdivision improvements.
b. Recording of Final Plat. No Final Plat shall be recorded pursuant to this
Agreement until the Disbursement Agreement described herein, in a form
acceptable to the County and containing terms and conditions acceptable to the
County, has been received and entered into by the County.
c. Security for Revegetation. Prior to the last disbursement under the Disbursement
Agreement, Owners/Subdividers shall deposit five hundred dollars ($500.00) into
an interest-bearing escrow account for the purpose of ensuring adequate
revegetation and landscaping pursuant to the project landscaping plan in regard
to the second growing season. Such security shall only be released upon joint
signature of both the Owners/Subdividers and a representative of the County.
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d.
The balance of such security account shall be released to the Owners/Subdividers
after adequate proof of such revegetation/landscaping has been demonstrated and
upon approval of the County.
Acknowledgment of Satisfaction. Upon satisfactory completion of all
improvements required by this Agreement and the Disbursement Agreement, and
the receipt and acceptance of all written certifications required therein, the County
shall execute and deliver a written acknowledgment of the Owners/Subdividers'
satisfaction of this Agreement in a recordable form and fully release all security
given hereunder.
4. Water System and Utilities. All easements and real property constituting the sites
of domestic water and other utility systems shall be indicated upon the Final Plat and dedicated
to and accepted by the homeowners association for the Subdivision. Coincident with the
recording of the Final Plat, the Owners/Subdividers shall transfer all water rights to the
homeowners association as such are necessary to provide water service to the Subdivision.
Additionally, the Owners/Subdividers shall deed all easements for water services and utilities
to the homeowners association coincident with the recording of the Final Plat. •
5. Building Permits and Certificates of Occupancy. The parties agree that no
building permit shall be issued until the Owners/Subdividers demonstrate to the satisfaction of
the Fire District and the County that adequate water is available for the Fire District's purposes
at the site of construction. Further, the parties agree that no certificate of occupancy shall be
issued for any building or structure within the Subdivision until all subdivision improvements,
including completion of the water system, have been completed and are operational, as required
by this Agreement. The Owners/Subdividers herein agree that prior to the conveyance of any
lot within the Subdivision, Owners/Subdividers will provide to the purchaser of that lot a signed
copy of Exhibit D, attached hereto, notifying the owner of the foregoing restrictions upon
issuance of building permits and certificates of occupancy. Once compliance with this section
in regard to building permits and water system requirements is demonstrated by the
Owners/Subdividers as evidenced by the Fire District's and the County's approval, the County
Manager shall be authorized to execute notice of such compliance.
6. Roads. All roads within the Subdivision shall be public but shall not be accepted
by the County for purposes of maintenance, upkeep, or repair. The homeowners association for
the Subdivision shall bear the sole responsibility for the maintenance, repair, upkeep, snow
removal, and reconstruction of all roads within the Subdivision, including the emergency access
roadway and associated gate; provided, however, that the Owners of Lots 16 and 18, which lots
share an access easement to use the emergency access road as a shared driveway, and the
Owners of Lots 10, 11, and 17, which lots also share an access easement to use the emergency
access road as a shared driveway, shall be proportionately responsible for the maintenance,
repair, upkeep, snow removal and reconstruction of the emergency access road to the extent that
such road is used as an access easement/shared driveway by such Owners. If such Owners fail
to undertake such obligations, the homeowner's association may undertake such responsibilities
and such Owners shall be responsible for all costs incurred by the Association as a result
according to their respective interests. Owners/Subdividers shall provide road signage within
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the Subdivision in accordance with the Uniform Manual of Traffic Control.
7. Indemnity. To the extent allowed by law, the Owners/Subdividers agree to
indemnify and hold the County harmless and defend the County from all claims which may arise
as a result of the Owners/Subdividers' installation of the improvements required pursuant to this
Agreement. However, the Owners/Subdividers do not indemnify the County for claims made
asserting that the standards imposed by the County are improper or the cause of the injury
asserted. The County shall be required to notify the Owners/Subdividers of receipt of a notice
of claim or a notice of intent to sue, and shall afford the Owners/Subdividers the option of
defending any such claim or action. Failure to notify and provide such written option to the
Owners/Subdividers shall extinguish the- County's rights- under- this section. Nothing- herein
stated shall be interpreted to require the Owners/Subdividers to indemnify the County from
claims which may arise from the negligent acts or omissions of the County or its employees.
8. School Impact Fees. The parties recognize and agree that the approval of the
Final Plat constitutes approval of fifteen (15) new single-family lots, with the two (2) open space
lots and- the three (3) lots already existing within the- Subdivision- excluded from- such -
calculations. The parties agree that school impact fees shall be determined to be $200.00 per
dwelling unit for a total of $3,000.00, which shall be paid to the County simultaneously with
the execution of this Agreement. The Owners/Subdividers specifically agree that
Owners/Subdividers are obligated to pay the same, herein accept that obligation, and waive any
claim that Owners/Subdividers are not so obligated or required to pay school impact fees. The
Owners/Subdividers agree that subsequent to recording of the Final Plat, the Owners/Subdividers
will not claim, nor are the Owners/Subdividers entitled to, a reimbursement of the school impact
fees paid in conjunction with this Agreement.
9. Off -Site Road Impacts. In an effort to help mitigate off-site road damage in
regard to the County road system immediately surrounding the Subdivision, the
Owners/Subdividers agree to pay to the County the amount of Four Thousand Dollars
($4,000.00) simultaneously with the execution of this Agreement.
10. Issuance of Building Permits. As one remedy for breach of this Agreement, the
County may withhold issuance of building permits for any structure within the Subdivision until
the breach is remedied.
11. Sale of Lots. No lots within the Subdivision shall be conveyed prior to recording
of the Final Plat.
12. Approval of Final Plat. The County herein agrees to approve the Final Plat of
the Subdivision subject to the terms and conditions of this Agreement, as well as the terms and
conditions of the Preliminary Plan approval.
r3-. Vested -Rights. The County and -the Owners/Subdividers agree that the County's-
Final
ounty'sFinal Plat approval in regard to the Subdivision constitutes the approval of a "Site Specific
Development Plan" pursuant to C.R.S. §24-68-103 and that no further hearings are required.
Accordingly, upon the County's approval of the Final Plat, the Owners/Subdividers shall be
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granted vested property rights for the Subdivision for a period of three (3) years from the
effective date of the approval upon the condition that the Owners/Subdividers comply with all
the terms and conditions of this Agreement, the Final Plat for the Subdivision, and all related
development submittals. The Owners/Subdividers shall be solely responsible for publishing both
the pre -final plat approval and post -final plat approval vested rights notices pursuant to the
required C.R.S. §24-68-103 timelines.
14. Consent to Vacate Plat. In the event the Owners/Subdividers fail to comply with
the terms of this Agreement, including the terms of the Preliminary Plan, the County shall have
the ability to vacate the Final Plat as it pertains to lots which have not been conveyed for and
at market value to bona fide purchasers, which purchasers are not related to the
Owners/Subdividers. Any lots which have been so conveyed shall not be vacated, and the plat
as to those lots shall remain valid. The Owners/Subdividers shall provide a survey and complete
legal description with a map showing the location of a portion of the plat so vacated.
15. Enforcement. In addition to any rights which may be provided by Colorado
statute,_ it ismutually agreed that the_ Countyor_ anypurchaser_ cif_ a_ lot w.ithin_the_ Subdivision
shall have the authority to bring an action in the District Court of Garfield County, Colorado,
to compel enforcement of this Agreement.
16. Binding Effect. This Agreement shall be a covenant running with the title to each
lot.within. the_ Subdivision,. and_ the rightsand_ obligations_ as_ contained herein shall be binding.
upon and inure to the benefit of the Owners/Subdividers, Owners/Subdividers' successors, and
assigns.
17. Recording. Upon execution and authorization by the County, the
Owners/Subdividers shall record this Agreement with the Office of the Clerk and Recorder of
Garfield County, Colorado.
18. Venue and Jurisdiction. Venue and jurisdiction for any cause arising out of or
related to this Agreement shall lie in the District Court of Garfield County, Colorado, and be
construed pursuant to the laws of the State of Colorado.
19. Amendment. The parties hereto mutually agree that this Agreement may be
amended" from time to time, provided such amendment is in writing and- signed by the parties
hereto.
20, Notice. All- notices. required. herein- shall. betenderedby personalserviceor.
certified mail upon the following individuals or agents of the parties to this Agreement:
To County:
Board of County Commissioners of Garfield County
c/o Mark Bean, Planning Director
109 Eighth Street, Suite 303
Glenwood Springs, CO 81601
With a copy to: Don K. DeFord, Esq.
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To Owners/Subdividers:
With a copy to:
Garfield County Attorney
109 Eighth Street, Suite 300
Glenwood Springs, CO 81601
Norman E. and Laura B. Clasen
P. O. Box 1155
Basalt, CO 81621
Spring Creek Land Company
P. O. Box 1155
Basalt, CO 81621
Leavenworth & Associates, P.C.
P. O. Drawer 2030
Glenwood Springs, CO 81602
WHEREFORE, this Agreement is entered into the day and year first above written.
ATTEST:
lerk to the Board
F:\FILES\CLA SEN 1.1 AG
June 3, 1996
By
By
OWNERS/SUBDI
Norman E. Clasen
SPRING CREEK ND COMPANY
By-
By
y
By_
-6-
Norman E. Clasen, Managing Agent
BOARD OF COUNTY COMMISSIONERS
OF GARFIELD COUNTY, COLORADO
Chairman
EXHIBIT A
496233 B-986 P-502 07/24/96 12:22P PG 7 OF 17
CEDAR HILLS PROPERTY DESCRIPTION
A TRACT OF LAND SITUATED IN THE NORTHEAST QUARTER OF SECTION 1,
TOWNSHIP 6 SOUTH RANGE 92 WEST OF THE 6TH PRINCIPAL MERIDIAN AND THE
NORTHWEST QUARTER OF SECTION 6, TOWNSHIP 6 SOUTH, RANGE 91 WEST OF
THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD. STATE OF COLORADO;
SAID TRACT OF LAID DESCRIBED IN THE OFFICE OF THE GARFIELD COUNTY
CLERK AND RECORDER IN BOOK 833 AT PAGE 386 AS RECEPTION NO. 435454 AND
BEING MORE PARTI ULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THF NORTHWEST CORNER OF SECTION 6. THE TRUE POINT OF
BEGINNING; THEN E N 88°48'34" E ALONG THE NORTHERLY LINE OF SAID
SECTION 6 195.15 F ET; THENCE LEAVING SAID NORTHERLY LINE S 00°20'54" E
2170.28 FEET TO A P INT ON THE NORTHERLY RIGHT-OF-WAY LINE OF COUNTY
ROAD NO. 214; TH CE S 78°11146" W ALONG THE NORTHERLY RIGHT -OF -WAY
LINE OF SAID COU TY ROAD 1538.16 FEET TO A POINT IN AN EXISTING FENCE;
THENCE LEAVING SAID NORTHERLY RIGHT-OF-WAY N 00°08'26" W ALONG AN
EXISTING FENCE 1130.43 FEET: THENCE CONTINUING ALONG SAID EXISTING
FENCE N 82°37'17" E 69.04 FEET; THENCE CONTINUING ALONG SAID EXISTING
FENCE N 01°20'47"1334.05 FEET TO A POINT ON THE NORTHERLY LINE OF SAID
SECTION 1; THENCLEAVING SAID EXISTING FENCE ALONG THE NORTHERLY
LINE OF SAID SECTION 1 N 89°44'13" E 339.63 FEET TO THE SOUTH QUARTER
CORNER OF SECTION 33, TOWNSHIP 5 SOUTH, RANGE 91 WEST OF THE 6TH
PRINCIPAL MERIDIAN; THENCE CONTINUING ALONG SAID NORTHERLY LINE
N 89°34'50" E 860.68 FEET TO THE TRUE POINT OF BEGINNING; SAID TRACT OF
LAND CONTAINING 77.396 ACRES, MORE OR LESS.
EXHIBIT B
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ENGINEER'S OPINION OF PROBABLE
CONSTRUCTION COST FOR
CEDAR HILLS RANCH PUBLIC IMPROVEMENTS
HCE JOB NO.: 95020.05
DATE:5/15/96
UNIT
ITEM QUANTITY COST COST
Mobilization & Grading 1 L.S. 65,000.00 65,000.00 *
Class 3 ABC 5614 C.Y. 15.00 84,210.00
Class 6 ABC 2800 C.Y. 20.00 56,000.00
Chip and Seal 12850 S.Y. 2.75 35,337.50
30" CMP Squash 86 L.F. 45.00 3,870.00 *
30" Flared End 4 Each 220.00 880.00
24" CMP 90 L.F. 35.00 3,150.00 *
24" Flared End 2 Each 180.00 360.00
18" CMP 319 L.F. 25.00 7,975.00 *
18" Flared End 14 Each 130.00 1,820.00
Class I Ground Sign 5 Each 200.00 1,000.00
24" DIP Waterline 60 L.F. 45.00 2,700.00
6" DIP Waterline 4430 L.F. 25.00 110,750.00
6" Water Valve 2 Each 400.00 800.00
Pump House and Pump 1 L.S. 4,500.00 4,500.00
Pond Fire Hydrant 1 Each 2,500.00 2,500.00
Fire Hydrant Assembly 2 Each 2,200.00 4,400.00
1" Water Service 15 Each 1,400.00 21,000.00
Riprap 10 C.Y. 20.00 200.00
Transformer Vault Exc. ' 8 Each 700.00 5,600.00
4' Utility Trench 6230 L.F. 5.00 31,150.00
Conduit & Warning Tape 6230 L.F. 1.00 6,230.00
Electric Utility 1 L.S. 45,000.00 45,000.00
Telephone/Cable Utility 1 L.S. 7,500.00 7,500.00
Gas Utility 1 L.S. 30,000.00 30,000.00
Revegetation 1 L.S. 1,000.00 1,000.00
Tank Appurtances 1 L.S. 3,000.00 3,000.00
Water Tank 1 L.S. 36,000.00 36,000.00
TOTAL $571,932.50
*Indicates items which have already been built according to plans and specifica-
tions.
This opinion of probable construction cost was prepared for estimating purpose
only. High Country Engineering, Inc. cannot be held responsible for variances
from this estimate as actual costs may vary due to bid and market fluctuation
923 Cooper Avenue • Glenwood Springs, CO 81601
Telephone: (970) 945-8676 • FAX: (970) 945-2555
496233 B-986 P-504 07/24/96 12:22P PG 9 OF 17
DISBURSEMENT AGREEMENT
OWNER: NORMAN E. CLASEN and LAURA B. CLASEN
DEVELOPER: SPRING CREEK LAND COMPANY, LLC
PROPERTY: CEDAR HILLS RANCH SUBDIVISION
COUNTY OF GARFIELD
STATE OF COLORADO
This Agreement is entered into by and between NORMAN E. CLASEN and LAURA B.
CLASEN (the "Owner"), SPRING CREEK LAND COMPANY, LLC, (the "Developer"), BANK
OF COLORADO -WESTERN SLOPE (the "Bank"), and THE BOARD OF COUNTY
COMMISSIONERS OF GARFIELD COUNTY, COLORADO, (the "County").
WHEREAS, the Owner and Developer have been required by the County to construct certain
public improvements ("Improvements") for Cedar Hills Ranch Subdivision (the "Property") in
accordance with the Subdivision Regulations of Garfield County, Colorado of 1984, as amended, and
subject to a Site Specific Development Plan and Subdivision Improvement Agreement (the
"Subdivision Improvements Agreement") for the Property; and
WHEREAS, the County has approved specific public improvements and an estimate of the
costs of the Improvements in the amount of $571,932.50, (the "Improvement Costs") which are
detailed on the Engineer's Opinion of Probable Construction Cost For Cedar Hills Ranch Public
Improvements, annexed hereto as Exhibit "A" and incorporated herein by this reference; and
WHEREAS, the Owner and Developer have agreed to complete the installation of all public
improvements by one year from the date of the Subdivision Improvements Agreement; and
WHEREAS, the Bank has agreed and committed to make a loan (the "Loan") to the Owner
and Developer, the proceeds of which are to be used for refinancing existing loans related to the
acquisition ofthe Property and construction of a portion of the Improvements, payment of fees and
miscellaneous costs associated with the development of the Property and with the Loan, and payment
of costs of construction of the Improvements; and
WHEREAS, the portion of the Loan proceeds available for payment of costs of construction
of Improvements is the sum $571,932.50 (the "Improvement Funds"); and
WHEREAS, the Owner and Developer desire to provide assurance that the Improvements
are completed and the Bank is willing to assure the County that the Improvement Funds will be
loaned and disbursed to pay for the Improvements irrespective of a default by the Owner or
Developer, and the County is willing to accept such assurances in lieu of requiring a letter of credit
or other security for the Improvement Costs:
EXHIBIT C
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NOW THEREFORE, the parties agree as follows:
1. Improvement Fund Commitment. The Bank agrees that the County is a third party
beneficiary of the Bank's commitment and agreement to loan and disburse the Improvement Funds
for payment of costs of construction of the Improvements, and that, notwithstanding any default by
the Owner or Developer under this Agreement or under any other agreement or instrument made with
or for the benefit of the Bank with respect to the Loan (the "Loan Documents"), the Bank will be
obligated in accordance with the terms of this Agreement to loan up to, but not exceeding, the sum
$571,932.50 to pay for construction of the Improvements, and to disburse the Improvement Funds
as herein provided. Nothing contained in this agreement shall obligate the Bank to advance more than
the total amount it has agreed to lend to the Owner and Developer, or to loan and disburse Loan
proceeds intended for refinancing existing loans or for payment of fees or interest, or for any other
purpose, to pay costs of constructing the Improvements. Nothing contained in this Agreement shall
alter or excuse the observance and performance by the Owner and Developer of their obligations
pursuant to the Loan Documents. Nothing contained herein shall be deemed a guaranty by the Bank
of performance by the Owner or Developer of their obligations pursuant to the Subdivision
Improvements Agreement, or create any duty or obligation on the part of the Bank to complete the
Improvements.
2. Disbursement Procedures. Improvement Funds shall be disbursed for payment of
costs incurred in the construction of the Improvements described in the Engineer's Opinion of
Probable Construction Cost For Cedar Hills Ranch Public Improvements, attached as Exhibit "A".
Any money the Developer may be required to deposit in any Special Disbursement Account pursuant
to the terms of the Loan Documents shall be disbursed before proceeds of the Bank's loan are
advanced and disbursed. Disbursements shall be made only in accordance with the following
procedures:
a. Draw Requests. Draws of Improvement Funds shall be requested by the
Developer delivering to the County Building and Planning Department a written request for
disbursement on forms acceptable to the Bank. Each such request shall be signed by the Developer
and -the Project -Engineer. The -request shall certify: (i) all -costs -for- which-the_draw is.being_requested
have been incurred in connection with the construction of the Improvements; (ii) all work performed
and materials supplied are in accordance with the plans and specifications submitted to and approved
by the County; (iii) all work has been performed in a workmanlike manner; (iv) no funds are being
requested for work not completed, or for material not installed; and (v) the Project Engineer has
inspected and approved the Improvements for which payment is requested and has certified that all
such improvements have been constructed in conformance with the Plans and Specifications approved
with the Subdivision Improvements Agreement. Upon receipt of a draw request which complies with
the signature and certification requirements set forth above, the County may inspect and review the
Improvements to which the draw request relates, and shall, within 15 days after having received the
request, notify the Developer by a letter indicating potential deficiencies if the County determines that
the request should not be approved as to all or any portion of the work for which payment is
requested. If no letter of potential deficiencies is delivered to Developer within such 15 day period,
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the draw request shall be deemed approved by the County and shall be promptly presented to the
Board of County Commissioners for signature, such signature being a condition precedent to the
disbursement of Improvement Funds. Upon signature by the Board of County Commissioners, a draw
request_shalLhudelivered to the Bank for review and processing.
b. Documentation and Lien Waivers. Each draw request shall be accompanied
by (i) one original and one copy of each invoice to be paid; (ii) checks drawn on the Special
Disbursement Account, made payable to the payee and -in the amount of each invoice presented -for
payment; (iii)-lien-waiver&in a_thnn approved by. the Bank prepared for signature by each payee; and
(iv) postage paid envelopes addressed to each payee for the mailing of checks presented to the Bank.
c. Disbursement The Bank may, at its sole discretion, inspect the Property and
the work for which payment has been requested prior to making any disbursement. The Bank shall
not, however, have any duty to the County or to any third person to inspect the Property and the
work, and neither the Bank's election not to inspect the Property and the work, nor disbursement by
the Bank after any such inspection, shall be deemed a representation by the Bank to any person that
there has been or will be compliance with the Plans and Specifications or that the work is free from
defective materials or workmanship. If the Bank approves the request for advance, the Bank shall
advance Improvement Funds into the Special Disbursement Account and shall mail the checks to the
payees in the envelopes presented to the Bank, together with lien waivers and copies of supporting
invoices. The Bank shall not be obligated to make a disbursement for the payment of an invoice if
the Bank in good faith believes that: (i) the work has not been completed; (ii) the work has not been
completed in a workmanlike manner; (iii) written approval has not been received from the Project
Engineer or the County; or (iv) any lien waiver relating to any prior disbursement to the same person
has been altered or modified or has not been returned to the Bank. The Bank shall promptly notify
the Developer and the County if any request for advance, or any portion thereof, is not approved by
the Bank.
d. Default. The Developer shall be in default under this Agreement if any act,
omission or event occurs which constitutes a default by Developer or an event of default under the
Loan Documents and such default is not cured by Developer or waived by Bank in accordance with
the Loan Documents, or ifDeveloper fails to observe or perform any of the covenants, conditions or
provisions of the Subdivision Improvements Agreement to be observed or performed by the
Developer and such failure continues for a period often (10) days after written notice thereof is given
by the County to the Developer; provided, however, if the nature of the Developer's default under
the Subdivision Improvements Agreement is such that more than ten (10) days are reasonably
required for a cure of such default, then the Developer shall not be deemed to be in default if
Developer commences such cure within said ten (10) day period and thereafter diligently prosecutes
such cure to completion. The County shall promptly notify the Bank if it deems the Developer in
default of this Agreement, and the Bank shall promptly notify the County of any default under the
Loan Documents which will not be waived by the Bank and has not been cured by the Developer.
After any such notice is given, Bank shall not disburse Improvement Funds to or at the direction of
the Developer. Disbursements subsequent to any notification of Default shall be made only pursuant
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to and in accordance with subsection 2 e., below.
e. Disbursement After Notification Of Developer Ada*. If the Improvements
are not completely and satisfactorily constructed within one year from the date of the Subdivision
Improvements Agreement, or upon any default by Developer as defined above, the County shall
notify the Bank to immediately cease disbursement of Improvement Funds to or at the request of the
Developer. Any undisbursed Improvement Funds shall thereafter be advanced solely to or at the
direction of the County for the completion of the Improvements by such contractors as the County
shall select (subject, however, to Bank's right to disapprove the use of any subcontractor selected by
County); or the County, at its sole discretion, may direct the Bank to pay the full amount of the
remaining undisbursed Improvement Funds to the County. If the County requires that the Bank pay
the balance of the Improvement Funds to the County, upon making such payment, the Bank shall
have no further obligations pursuant to this Agreement. Whether the County elects to have remaining
Improvement Funds advanced in a lump sum to the County or in separate advances to subcontractors
and material suppliers, the County shall be obligated to complete the Improvements in accordance
with the Plans and Specifications, and to promptly pay the costs of construction so that no mechanics
or material supplier's liens are asserted against the Property. If the undisbursed Improvement Funds
are not paid to the County, advances of undisbursed Improvement Funds shall continue to be made
in accordance with the disbursement procedures set forth in this Section 2 except that approval of the
Developer shall not be required.
3. Developer and Guarantor Waiver Consent and Indemnity. The Developer and the
Guarantors consent to disbursements and other actions authorized and provided for by the terms of
this Agreement. Developer agrees that it will defend, indemnify and hold the Bank harmless from any
claim made on account of this Agreement and shall waive any claim against the Bank on account of
the Banks good faith performance of its obligations under this Agreement. Guarantors acknowledge
that any Improvement Funds disbursed pursuant to this Agreement are indebtedness of Developer
to Bank as contemplated in the Guaranty executed by each.
4. Binding Effect. This Agreement shall be binding on the heirs, successors, receivers
and assigns of all parties and shall terminate when the City has accepted the Improvements and has
recorded a release of the Subdivision Improvements Agreement.
5. Immunity. Nothing contained in this Agreement constitutes a waiver of the County's
sovereign immunity under applicable state law.
6. No Partnership or Agency Created. The making and execution of this Agreement shall
not be deemed to create any partnership, joint venture or other relationship between the parties or
any of them, and no party shall be deemed an agent of any other party because of this agreement or
anything contained herein.
7. Recordation. This Agreement shall be recorded in the office of the Garfield County
Clerk and Recorder.
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496233 B-986 P-508 07/24/96 12:22P PG 13 OF 17
8. Captions. The captions for the articles and sections of this Agreement are included
for purposes of convenience only and shall not affect the construction or interpretation of any of its
provisions.
9. Complete Agreement. This Agreement, including any exhibits or addenda, constitutes
the entire agreement between the County and the Bank pertaining to the method of disbursement of
Improvement Funds and the Bank's obligation to disburse Improvement Funds in the event of a
default by the Developer. The parties acknowledge, however, that the County and the Developer have
entered into the Subdivision Improvements Agreement to which this Agreement is attached, and that
the Bank and the Developer have entered into the Loan Documents, and that the Loan Documents
pertain in part to the same subject matter as this Agreement. If the provisions of this Agreement
contradict or conflict with the terms of any of the Loan Documents, the terms of this Agreement shall
control. Otherwise, this Agreement shall not be deemed a waiver of or modification of any term
condition, right or remedy provided in the Loan Documents. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by all parties.
10. Notices. Any notice permitted or required by this Agreement shall be given in writing
and shall be given by personal delivery, registered or certified mail, or by an express delivery service.
Notice shall be effective upon the date of delivery, or of attempted delivery if delivery is refused.
The parties' addresses for notice shall be as follows:
County:
Board of County Commissioners of Garfield County
Garfield County Courthouse, Suite 300
109 8th Street
Glenwood Springs, Colorado 81601
Bank: Bank of Colorado -Western Slope
901 Grand Avenue
Glenwood Springs, Colorado 81601
Attention: Jeffrey A. Johnson, Vice President
Developer/Owner: Norman E. Clasen
Laura B. Clasen
Spring Creek Land Company, LLC
P.O. Box 1155
Basalt, CO 81621
Any party may change its address for purposes of this paragraph by giving the other party
written notice of the new address in the manner set forth above.
11. ,Severability. In the event any part of this Agreement is found to be void, the
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496233 B-986 P-509 07/24/96 12:22P PG 14 OF 17
remaining provisions of this Agreement shall nevertheless be bindin ,with the'same effect as though
" 4
the void part was deleted.
i2
DATED this o I day of J -J I , 1996
BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO
h ,• ' r-.
r
By:
74.
J
Attest.
Norman E. Clasen
BANK OF COLORADO -WESTERN SLOPE
B
Clerk
The undersigned Guarantors execute this Agreement not as parties, but for the sole purpose
of making the consent and acknowledgement set forth in paragraph 3, above.
6