HomeMy WebLinkAbout2.04 SIA 4th AMD1 111111111111111111111111111111111 lo 111 I1IIlIIII 1111 •
582068 06/04/2001 04:18P B1258 P366 M ALSDORF
1 of 15 R 0.00 D 0.00 GARFIELD COUNTY CO
ASSUMPTION, ACCEPTANCE AND FOURTH AMENDMENT
TO SUBDIVISION IMPROVEMENTS AGREEMENT
FOUR MILE RANCH SUBDIVISION
THIS ASSUMPTION, ACCEPTANCE AND FOURTH AMENDMENT TO
SUBDIVISION IMPROVEMENTS AGREEMENT for the FOUR MILE RANCH
SUBDIVISION is made and entered into this day of June, 2001, by and between MidFirst
Bank, a federally chartered savings association (hereinafter "Owner"), and the Board Of
County Commissioners Of Garfield County, State Of Colorado (hereinafter "County").
WITNESSETH:
WHEREAS, Owner is the successor in interest to Four Mile Ranch Development
Company (hereinafter "Former Owner"), former owner and developer of the certain real
property located within Garfield County, Colorado, which real property is subject to the Final
Plat for the Four Mile Ranch Subdivision recorded on July 3, 2000 as Reception No. 565737
in the Garfield County Clerk and Recorder's office (the "Property"); and
WHEREAS, Former Owner and County executed a Subdivision Improvements
Agreement for the Four Mile Ranch Subdivision (the "SIA") dated June 30, 2000, recorded on
July 3, 2000 as Reception No. 565738 in the Garfield County Clerk and Recorder's office; and
WHEREAS, Former Owner executed a Deposit Agreement with the County dated June
30, 2000,as amended by that letter agreement dated August 28, 2000, by and between the
Garfield County Treasurer and Leavenworth & Tester P.C. and accepted and agreed to by the
Garfield County Board of County Commissioners, to secure and guarantee the performance of
the SIA by Owner (the "Deposit Agreement"); and
WHEREAS, Former Owner and County executed an Amendment To Subdivision
Improvements Agreement for Four Mile Ranch Subdivision (the "Amendment") dated August
29, 2000, recorded on September 6, 2000 as Reception No. 568937 in the Garfield County
Clerk and Recorder's office, which Amendment set forth a revised completion date for the off-
site improvements of November 3, 2000, as well as the procedures to be followed in the event
completion could not be accomplished by that date; and
WHEREAS, Former Owner and County executed a Second Amendment To Subdivision
Improvements Agreement for Four Mile Ranch Subdivision (the "Second Amendment") dated
October 23, 2000, which Amendment sets forth the agreement of the parties to defer completion
of the off-site improvements until the spring of 2001 and to extend the completion date for the
road work already in progress to November 17, 2000, as well as the requirement that the Former
Owner provide the County with a revised cost estimate for the completion of the off-site
improvements to determine whether the funds on deposit would be adequate to secure and
guarantee performance of the SIA; and
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WHEREAS, Former Owner and County executed a Third Amendment To Subdivision
Improvements Agreement for Four Mile Ranch Subdivision (the "Third Amendment") dated
November 20, 2000, which Amendment sets forth the agreement of the parties to extend the
completion date for the grading and road work already in progress to December 2, 2000 and to
set the completion date for the off-site improvements as July 1, 2001, as well as to require the
Former Owner to provide the County with a revised cost estimate for the completion of the off-
site improvements within ten (10) days of completion of the work in progress and to supplement
the cash deposit in accordance with the Deposit Agreement, to insure the cash deposit adequately
secures completion of the off-site improvements; and
WHEREAS, the Former Owner defaulted under the terms of the SIA, as amended, which
default caused the County to initiate proceedings to vacate the Final Plat, the hearing of which
was scheduled for March 12, 2001; and
WHEREAS, as an inducement to the County to postpone the March 12, 2001 hearing to
April 1, 2001, the Former Owner executed a Restrictive Covenant dated March 12, 2001,
recorded as Reception No. 577339 in Book 1236 at Page 723 in the Garfield County Clerk and
Recorder's office (hereinafter the "Restrictive Covenant") which provides in pertinent part that
the Restrictive Covenant shall be terminated and released once the Former Owner cures its
default under the SIA or upon the written consent of the County; and
WHEREAS, as an inducement to the County to further postpone the April 1, 2001
hearing, Owner posted a Letter of Credit, dated March 30, 2001, in the amount of $576,000 with
the County; and
WHEREAS, Former Owner conveyed the Property to Owner by General Warranty Deed
dated March 22, 2001, recorded on May 16, 2001 as Reception No. 581068 in Book 1253 at
Page 403 in the Garfield County Clerk and Recorder's office; and
WHEREAS, on March 22, 2001 Former Owner executed a General Assignment in favor
of Owner assigning its rights, title and interest in and to all contract rights relating to or used in
connection with the Property, which assignment included the SIA, the Amendment, the Second
Amendment, the Third Amendment; and
WHEREAS, Owner has agreed to assume Former Owner's future obligations under the
SIA as amended, and the County has agreed to the assignment of rights and assumption of duties
as described above and has further agreed to extend the completion date for the off-site
improvements to Augu-s-t--1570+.
Sed-1-eN f:)) 2001.
NO , T EREFORE, for and in consideration of the premises and the following mutual
covenants an agreements, the parties hereby agree as follows;
1. Incorporation of Recitals. The foregoing recitals are incorporated herein by this
reference.
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2. Assumption and Acceptance. Owner hereby assumes all obligations of the
Former Owner not yet completed and accepted by the County, as set forth in the SIA, as
specifically amended herein. The County hereby accepts the assumption of obligations by Owner
and acknowledges that Owner's liability to the County commences upon execution by the County
of this Assumption, Acceptance and Fourth Amendment to the Subdivision Improvements
Agreement (hereinafter the "Agreement") for the Four Mile Ranch Subdivision.
3. Amendment to Paragraph 2of the SIA. Paragraph 2 of the SIA is hereby amended
to read as follows:
Owner's Performance. Owner has constructed and installed or shall cause to be
constructed and installed, at its own expense, those improvements required through
Resolution No. 98-13, this Agreement, the Final Plat, and all Garfield County Zoning and
Subdivision Regulations. Those improvements shall be completed on or before September
30, 2001. Specifically, the Owner shall comply with the following:
A. All plat documents submitted prior to or at the time of the final plat
approval, including as -built drawings of all improvements completed prior
to execution of this Agreement, which plat documents are incorporated
herein by referenced, and made a part of this Agreement;
B. All requirements of Resolution No. 98-13, 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, and affected special districts; and
D. The improvements to be constructed by the Owner are as follows:
1. Four Mile Ranch Off -Site Improvements, 11 sheets, submitted by
High Country Engineering, Inc. (hereinafter the "Project
Engineer"), Project No. 96098.04, dated May 10, 2001. The
summary of probable costs is attached hereto as Exhibit "A" and
incorporated herein by reference.
2. Four Mile Ranch On -Site Improvements, 25 sheets, prepared by
High Country Engineering, Inc., Project No. 96098.01, dated
September 23, 1997 and October 21, 1998, which improvements
have been installed and certified by High Country Engineering as
completed in accordance with the approved plans and
specifications, with the exception of those items set forth on the On -
Site Improvements Punch List, attached hereto as Exhibit "B" and
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incorporated herein by reference.
The County agrees that once all improvements are installed in accordance
with this Agreement, and the as -built drawings are submitted upon completion of
such improvements, Owner shall be deemed to have satisfied all terms and
conditions of this Agreement and the Zoning and Subdivision Regulations of
Garfield County, Colorado.
4. Amendment to Paragraph 4 of the SIA. Paragraph 4 of the SIA, as amended by the
Amendment, the Second Amendment and the Third Amendment, is hereby amended to read as
follows:
Security for Improvements. The County acknowledges that Owner has posted
a Letter of Credit with the County in the amount of $576,000. On or before the
date of execution of this Agreement by the County, the Owner and the County
shall enter into a Deposit Agreement, a copy of which is attached hereto as Exhibit
"C" and incorporated herein by reference, which shall provide for the posting of
additional funds as the remainder of the security to the County for the completion
of the off-site improvements described in Exhibit "A" (the "Additional Funds").
The County acknowledges that it is obligated to contribute funds in the amount of
$58,000 toward the costs of completing the off-site improvements described on
Exhibit "A" and that Owner shall not be required to post security to the extent of
the County's contribution. Upon posting of the Additional Funds by Owner, the
County hereby agrees to execute a Release of Restrictive Covenant, which shall
operate as the County's written consent to the termination and release of the
Restrictive Covenant.
As the off-site improvements are completed and certified by the Project
Engineer and the County Engineer as in compliance with the plans and
specifications, the County shall release security commensurate with the cost of
construction of such improvements. Funds held in accordance with the Deposit
Agreement shall be released prior to any release or reduction in the Letter of
Credit. Such certification authorizing release of security shall be tantamount to
an acknowledgment by the County that the relevant improvements have been
constructed in accordance with requirements of this Agreement, including all Final
Plat plans, and such certification shall be included on the as -built drawings
prepared by the Project Engineer where applicable.
Owner hereby agrees that security for all costs of landscaping has been
posted with the County. The certificate of completion for landscaping
improvements shall set forth the costs of re -vegetation, and such amount shall be
retained as security for a period not to exceed one (1) year after such completion.
At the conclusion of that one (1) year period, the amount of security retained for
landscaping shall be released by the County upon receipt and acceptance of a letter
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from a landscape professional certifying that such landscaping is complete and is
no longer in need of re -vegetation.
Upon certification of completion of all or a portion of the improvements by
the Project Engineer and delivery of such certification to the County Engineer, the
County shall have fifteen (15) days within which to determine whether the
improvements are constructed in compliance with relevant specifications. The
County shall furnish a letter of potential deficiencies to the Owner within this
fifteen (15) day period. If the letter is not furnished within fifteen (15) days, all
improvements certified by the Project Engineer shall be deemed accepted, and the
County shall release the appropriate amount of security as such relates to the
completed and certified improvements. If a letter of potential deficiencies is
furnished by the County, the County shall have thirty (30) days to complete its
investigation and provide written confirmation of the deficiency to the Owner. If
upon further investigation the County finds that the improvements are acceptable,
then the applicable funds or percentage of the Letter of Credit together with
accrued interest shall be released to the Owner. In the event the improvements are
not accepted by the County, the Board of County Commissioners shall make a
written finding of the deficiency at its next regularly scheduled meeting.
5. Amendment to Paragraph 5 of the SIA. Paragraph 5 of the SIA is hereby
amended to read as follows:
Waste Water System. All easements and facility locations shall be
dedicated in accordance with the terms of the Pre -Annexation Agreement
entered into by and between the City of Glenwood Springs and Four Mile
Ranch Development Company. The Project Engineer shall certify that the
public utilities have been completed in accordance with the approved plans
and specifications. In addition, Owner shall provide the County evidence
that the sewer lines have been approved by the City of Glenwood Springs
and copies of the conveyance documents, as applicable, for the Off -Site
Improvements.
6. Amendment to Paragraph 10 of the SIA. Paragraph 10 of the SIA is hereby
amended to reflect the exhibit referenced therein as Exhibit "D."
7 Amendment to Paragraph of the SIA. Paragraph 12 of the SIA is hereby amended
to read as follows:
Consent to Vacate Plat. In the event the Owner fails to comply with the
terms of this Agreement, including the terms of the Preliminary Plan, the
County shall have the ability to exercise its rights as specifically set forth
herein which shall include the ultimate right to vacate the final plat as it
pertains to lots for which no building permits have been issued. Any
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County shall have the ability to exercise its rights as specifically set forth
herein which shall include the ultimate right to vacate the final plat as it
pertains to lots for which no building permits have been issued. Any
existing lots for which building permits have been issued shall not be
vacated and the plat as to those lots shall remain valid. The Owner shall
provide the County a survey and complete legal description, including a
map showing the location, of that portion of the Final Plat so vacated.
Amendment to Paragraph 17 of the SIA. Paragraph 17 of the SIA is
hereby amended to reflect the new ownership of the Property. The name and address of the
Owner for notice purposes shall be as follows:
MidFirst Bank
501 N.W. Grand Boulevard
Oklahoma City, Oklahoma 73118
9. SIA Affirmed and Ratified. Except as expressly modified herein, the terms and
conditions of the SIA are affirmed and ratified.
Entered into the day and year first above written.
.ATTEST:
•=
By:
MidFirst Bank, a federally chartered savings
association
it,L. Randall Peck, Sr. Vice President
BOARD OF COUNTY COMMISSIONERS
OF GARFIELD COUNTY, COLORADO
Clerk to the Board
MIDFIRST-Four Mile SIA -Amend -4
June 1, 2001
By:
-6-
John
hairm ; n
i •
STATE OF OKLAHOMA )
COUNTY OF OKLAHOMA)
ss.
Acknowledged, subscribed, and sworn to before me this ` day of June, 2001, by L.
Randall Peck, as Sr. Vice President, on behalf of MidFirst Bank.
WITNESS my hand and official seal.
My Commission expires L(- - o y
..... 41141)yr 4 mil 5f4i'n/n P1 4
STEPHANIE LYNN POPE 1
ak ahcny� coon N� Pry Public
vcA I r Notary Public in and for
State o' Oklahoma
. My commis ion erpires AD'. 4, 20C4.
STATE OF COLORADO )
) ss.
COUNTY OF GARFIELD )
/rt.
Acknowledged, subscribed, and sworn to before me this ` day of June, 2001, by
John Martin, as Chairman of the Garfield County Board of County Commissioners.
WITNESS my hand and official seal. My Commission expires: "Al
STATE OF COLORADO )
)
COUNTY OF GARFIELD )
ss.
... ��" 7) C. -Zi
/
Notary Public
4cknowledged, subscribed, and sworn to before me this day of June, 2001, by
Cy f , as Clerk of the Board, of the Garfield County Board of
County Commissioners.
WITNESS my hand and official seal. My Commission expires:
-7-
MIDFIRST-Four Mile SIA -Amend -4
June 1, 20(1
/)'(I
Notary Public
FOUR MILE RANCH OFF-SITE IMPROVEMENTS
RECONSTRUCTION DESIGN
SUMMARY OF PROBABLE
CONSTRUCTION COST
May 21, 2001
HCE JOB NO: 96098.04
ogpr.d...w \XHAowWg1'.Jt
ITEM
UNIT
• UANTITY COST
COST
Grading and Earthwork
Mobilization
Earthwork (Cut)
Asphalt Stripping/Disposal
Road base Stripping/Disposal
2" Asphalt Resurfacing (Midland Ave.)
4" Asphalt (C.R. 117)
6" Class 6 ABC
Keystone Retaining Wall
Boulder Wall (Boulders from On -Site)
Storm Drains
18" ADS N-12
18" ADS N-12
18" ADS N-12
30" ADS N-12
30" ADS N-12
42" CMP
30" Mitered End
42" Mitered End
Relocate 24" CMP
1 L.S.
2836 C.Y.
8400 S.Y.
1520 C.Y.
3190 S.Y.
15430 S.Y.
2910 C.Y.
1700 S.F.
1000 S.F.
25 L.F.
44 L.F.
44 L.F.
60 L.F.
60 L.F.
85 L.F.
2 Each
2 Each
1 Each
35,000.00
4.50
4.00
4.50
5.25
10.35
22.00
34.00
19.00
32.00
32.00
32.00
46.00
46.00
65.00
400.00
700.00
1,100.00
Sewer
*price includes trenching and fittings
4' Dia. Manhole 10 Each 2,100.00
8" SDR 35 Sewerline 1872 L.F. 45.00
10" SDR 35 Sewer with Class 6 Trench Backfill 630 L.F. 77.00
8" SDR 35 Sewer with Class 6 Trench Backfill (Z2 -Z3) 310 L.F. 77.00
Tie into Existing Sewer Line 2 Each 500.00
4" Sewer Service 5 Each 1,000.00
20 L.F. 10" SDR 35 Sewerline Stub (Midland Ave.) 1 Each 1,540.00
80 L.F. 8" SDR 35 Sewerline Stub (McGregor) 1 Each 2,400.00
Shallow Utilities
Electric Vault / Splice Box
Electric/Telephone/Cable Trench and Conduit
Install Power Pole
Overhead Electric
Power Pole Removal/Disposal
Install Street Lamp Pole
2" Gas Line Trench
Miscellaneous
Revegetate/Landscape with Irrigation
Relocate Class I Ground Sign
Erosion Control Blanket
Erosion and Sediment Control plus Submitted Plan
12" Minus Rock in Place
Traffic Control plus Submitted Plan
17 Each
5190 L.F.
2 Each
300 L.F.
9 Each
1 Each
2180 L.F.
L.S.
12 Each
5600 S.Y.
1 L.S.
400 S.F.
1 L.S.
300.00
12.00
1,500.00
10.00
200.00
1,500.00
4.00
75,000.00
600.00
4.00
5,000.00
7.00
14,000.00
SUB TOTAL
Credit Materials Stored On -Site
SUB TOTAL
10% Contingency
35,000.00
12,762.00
33,600.00
6,840.00
16,747.50
159,700.50
64,020.00
57,800.00
19,000.00
800.00
1,408.00
1,408.00
2,760.00
2,760.00
5,525.00
800.00
1,400.00
1,100.00
21,000.00
84,240.00
48,510.00
23,870.00
1,000.00
5,000.00
1,540.00
2,400.00
5,100.00
62,280.00
3,000.00
3,000.00
1,800.00
1,500.00
8,720.00
75,000.00
7,200.00
22,400.00
5,000.00 ``i O i % %
2,800.00
14,000.00 ��y�$TEq�
$822,791.00 -CC,
($65,751.92)0 .
$757,039.44 0
✓ v .
TOTAL
This sumtnary of probable construction cost was prepared for estimating purposes
only. High Country Engineering, Inc. cannot be held responsible for variances
from this estimate as actual costs may vary due to bid and market fluctuations.
'25/01 FRI 16:05 FAX 405 879101 MIDLAND GROUP -LEGAL • a002
EXHIBIT B
MEMORANDUM
TO: GUY HARRELL - MID FIRST BANK
FROM: TOM CARTER/VERNON D. HOPE, P.E.
DATE: May 25, 2001
RE: FOUR MILE RANCH — SUMMARY PUNCH LIST
HCE PROJECT NO. 96098.04
• Per `Debris Cap' detail on Plan Sheet 21, debris caps are required at all water
valve boxes.
• Clean out dirt/debris at catch basin on Maroon Drive and flush 12" CMP.
• Final cleaning of sidewalks, curb and gutter, and streets of dirt/debris from
backfill activity.
• Finish grading at bike path.
• Final grading at tank road/place road base.
• Final grading at emergency access road.
• Install breakaway gate at emergency access road.
• Jet all scuppers and gutters.
• Replace cross pan at 4 -Mile Road and Redcliff.
• Grout vaults.
• Fill around vaults as needed.
• Sunrise Court cross pan and fillet --replace damaged section.
• Raise vault at Sunrise cul-de-sac (between Lots 11/12).
• Replace lid on vault at Lot 24 with inverted ring/cover.
• Cross pan at 4 -Mile Road and Maroon Drive --replace damaged section.
• Raise hydrant at Lot 29.
• Jet 18" culvert on emergency road and add flared ends.
• Erosion blanket on emergency road slopes.
• Ditch at emergency access --maintain erosion control, etc.
• Replace handicap ramp, sidewalk and curb & gutter at entrance.
05/25/01 FRI 16:06 FAX 405 87901
Guy Harrell
Page 2
5/25/01
Summary Punch List
MIDLAND GROUP -LEGAL •
EXHIBIT B
• Complete all landscaping and revegetation as required by previous SIA.
• Repair or replace demoed irrigation control system at City of Glenwood
Springs new tank site.
• Tie ends of public trail and bike path into 4- Mile Road per letter from
Leavenworth & Tester P.C. (dated 9/17/99).
• Letters of certification from registered engineers for all infrastructure
completed to date and all additional infrastructure contemplated by this punch
list.
Enc.
Cc: Joe Hope
Roger Neal
Deric Walter
Jeff Nelson, Garfield County Engineer
Tom Russell -Garfield Co. Road & Bridge
Dave Rippy (DRT2)
U003
• •
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT is made and entered into this day of ,
2001, by and between MidFirst Bank, a federally chartered savings association (hereinafter
"Owner") and the Board Of County Commissioners Of Garfield County, Colorado
(hereinafter "County").
WHEREAS, Owner is the successor in interest to Four Mile Ranch Development
Company (hereinafter "Former Owner"), former owner and developer of the certain real
property located within Garfield County, Colorado, which real property is subject to the Final
Plat for the Four Mile Ranch Subdivision recorded on July 3, 2000 as Reception No. 565737
in the Garfield County Clerk and Recorder's office (the "Property"); and
WHEREAS, Former Owner and County executed a Subdivision Improvements
Agreement for the Four Mile Ranch Subdivision (the "SIA") dated June 30, 2000, recorded on
July 3, 2000 as Reception No. 565738 in the Garfield County Clerk and Recorder's office,
which SIA has been amended by the parties; and
WHEREAS, Owner has agreed to assume Former Owner's obligations under the SIA as
amended, and the County has agreed to the assignment of rights and assumption of duties as
more particularly described in the Assumption, Acceptance and Fourth Amendment to the
Subdivision Improvements Agreement for the Four Mile Ranch Subdivision (hereinafter
"Assumption Agreement"); and
WHEREAS, the County has approved final construction drawings for the public
improvements required under the SIA and the Assumption Agreement (hereinafter "Off -Site
Improvements") and has accepted High Country Engineering's summary of probable
construction costs therefor in the amount of $832,742.91(hereinafter "Off -Site Costs") which
costs are detailed on Exhibit "A" to the Assumption Agreement and incorporated herein by this
reference; and
WHEREAS, on March 6, 2000, the Garfield County Board of County Commissioners
agreed to contribute fifty eight thousand dollars ($58,000) to assist Owner in completing the off-
site improvements to County Road 117 ("County's Contribution"); and
WHEREAS, Owner has posted a Letter of Credit in the amount of $576,000 with the
County as security for the completion of the Off -Site Improvements and has agreed to deposit
with the County additional funds in the amount of $198,742.91 (hereinafter "Additional Funds")
required to fully secure the Off -Site Costs; and
WHEREAS, Owner and the County desire to enter into an agreement regarding the
deposit of the Additional Funds with the County as security for the completion of the Off -Site
Improvements.
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NOW THEREFORE, for and in consideration of the premises and the following mutual
covenants and agreements, the parties hereby agree as follows:
1. Owner's Cash Deposit. The Owner agrees that it shall be obligated in
accordance with the terms of this Deposit Agreement to deposit with the Garfield County
Treasurer (hereinafter "County Treasurer") the sum of $198,742.91 simultaneously with the
execution of the Assumption Agreement, to secure construction of the Off -Site Improvements.
2. Release of Security. As the Off -Site Improvements are completed and certified
by the Project Engineer and accepted by the County Engineer as in compliance with the plans
and specifications, the County shall release security commensurate with the cost of construction
of such improvements. The Additional Funds shall be released by the County prior to any
release of or reduction in the Letter of Credit. Such certification and acceptance authorizing
release of security shall be tantamount to an acknowledgment by the County that the relevant
improvements have been constructed in accordance with the requirements of the Assumption
Agreement.
3. Request for Release of Security.
a. Requests for Release. Requests for Release of Security shall be delivered
by the Owner to the County Building and Planning Department in the form of a written request
for disbursement or release. Each such request shall be signed by the Owner and certified by
the Project Engineer. The request shall certify: (i) all costs for which the release is being
requested have been incurred in connection with the construction of the Off -Site 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) all work for which the release of security is being requested has been completed,
or relates to material installed or stored on site; and (v) the Project Engineer has inspected and
approved the Off -Site Improvements for which payment is requested and has certified that all
such improvements have been constructed in conformance with the plans and specifications
approved by the County. Upon certification of completion of all or a portion of the
improvements by the Project Engineer and delivery of such certification to the County Engineer,
the County shall have fifteen (15) days within which to determine whether the improvements are
constructed in compliance with relevant specifications. The County shall furnish a letter of
potential deficiencies to the Owner within this fifteen (15) day period. If the letter is not
furnished within fifteen (15) days, all improvements certified by the Project Engineer shall be
deemed accepted, and the County shall release the appropriate amount of security as such relates
to the completed and certified improvements. If a letter of potential deficiencies is furnished by
the County, the County shall have thirty (30) days to complete its investigation and provide
written confirmation of the deficiency to the Owner. If upon further investigation the County
finds that the improvements are acceptable, then the applicable funds or percentage of the Letter
of Credit together with accrued interest shall be released to the Owner. In the event the
improvements are not accepted by the County, the Board of County Commissioners shall make
a written finding of the deficiency at its next regularly scheduled meeting.
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b. Release. The County Engineer's determination regarding whether the
relevant improvements have been constructed and installed in accordance with the approved
plans and specifications shall be conveyed to the Board of County Commissioners for
consideration at its next regularly scheduled meeting in approving or denying the Owner's
request for release of security. In the event the County approves the request for release of
security it shall forthwith provide written direction to the County Treasurer to release the
relevant portion of the Additional Funds or Letter of Credit. Upon receipt of such written
direction, the County Treasurer shall wire transfer funds to Owner in accordance with Owner's
written instruction. The County Treasurer shall not be obligated to release security if the
County in good faith believes that: (i) the work has not been completed; (ii) the work has not
been completed in a workmanlike manner; or (iii) written approval has not been received from
the Owner, Project Engineer or the County. The County shall promptly notify the Owner if any
request for release of security or any portion thereof, is not approved by the County.
c. Release of Security After Notification of Owner Default. In the event the
construction of the Off -Site Improvements has not been completed on or before September 30,
2001, or upon any default by Owner as defined above, the County Treasurer, upon written
direction of the County, shall advance any remaining security solely to or at the direction of the
County for the completion of the Off -Site Improvements by such contractors as the County shall
select. The County shall complete the Off -Site Improvements and promptly pay the costs of
construction to the extent of available funds.
4. Waiver, Consent and Indemnity. The Owner consents to the release of security
and other actions authorized and provided for by the terms of this Deposit Agreement. Owner
agrees that it will defend, indemnify, and hold the County harmless from any claim made on
account of this Deposit Agreement and shall waive any claim against the County arising out of
the County's good faith performance of its obligations under this Deposit Agreement.
5. Binding Effect. This Deposit Agreement shall be binding on the heirs,
successors, receivers and assigns of all parties and shall terminate when the Owner has fulfilled
all of its obligations under the Assumption Agreement.
6. Immunity. Nothing contained in this Deposit Agreement constitutes a waiver of
the County's sovereign immunity, if any, under applicable state law.
7. No Partnership or Agency Created. The making and execution of this Deposit
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 Deposit Agreement or anything contained herein.
1:12001 \ Clients \MIDFIRST\Agreements\DepositAgreement. wpd
June 1, 2001 3
• •
8. Recordation. This Deposit Agreement shall be recorded in the office of the
Garfield County Clerk and Recorder.
9. Captions. The captions for the sections of this Deposit Agreement are included
for purposes of convenience only and shall not affect the construction or interpretation of any
of its provisions.
10. Complete Agreement. This Deposit Agreement, including any exhibits or
addenda, constitutes the entire agreement between the County and the Owner pertaining to the
method of releasing security for the Off -Site Improvements and the County's obligation to
release such security in the event of a default by the Owner. The parties acknowledge that the
County and the Owner have entered into the Assumption Agreement to which this Deposit
Agreement is attached. No supplement, modification, or amendment of this Deposit Agreement
shall be binding unless executed in writing by all parties.
11. Notices. Any notice permitted or required by this Deposit 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:
Owner:
With a copy to:
Board of County Commissioners of Garfield County
Garfield County Courthouse, Suite 300
109 8th Street
Glenwood Springs, CO 81601
MidFirst Bank
501 West Interstate 44 Service Road
P.O. Box 26750
Oklahoma City, Oklahoma 73126
Loyal E. Leavenworth, Esq.
Leavenworth & Karp, P.C.
1011 Grand Avenue
P.O. Drawer 2030
Glenwood Springs, Colorado 81601
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.
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June 1, 2001 4
• •
12. Severability. In the event any part of this Deposit Agreement is found w be void,
the remaining provisions thereof shall nevertheless be binding with the same effect as though
the void part was deleted.
'il i.
:Attest:'
DATED this
414
day of
, 2001.
BOARD OF COUNTY COMMISSIONERS OF
\GARFIELD C TY, COLORADO
By:
Title:
By:
MIDFIRST BANK, a federally chartered savings
association
66-7 L. Randall Peck, Sr. Vice President
\2001l Ckienre\MIDREtST\Agcticuc tslDepositAg,eeme,it.wpd
lune 1.2001
5
DATE /c— °,76/
COPY • NOT COMPARED
ORIGINAL RECORDED WITH
RECEPTION #3 ,C
BOOK/6 PAGE3t
MILDRED ALSDORF
GARFIELD COUNTY CLERK
BY