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HomeMy WebLinkAbout1.04 Improvement agreement & consent to vacate final platMahan Subdivision September, 2008 Tab 5 Improvement Agreement and Consent to Vacate the Final Plat MOUNTAIN CROSS ENGINEERING. INC. Civil and Environmental Consulting and Design 826 4 Grand Avenue, Glenwood Springs, CO 81601 P; 970.945.5544 F: 970.945.5558 www.mountaincross-eng.corn MAHAN SUBDIVISION SUBDIVISION IMPROVEMENTS AGREEMENT THIS SUBDIVISION IMPROVEMENTS AGREEMENT ("Agreement") is made and entered into this day of , 2008, by and between MAHAN PROPERTIES, a Colorado partnership ("Owner") and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO, acting for the County of Garfield, State of Colorado, as a body politic and corporate, directly or through its authorized representatives and agents ("BOCC"). WHEREAS, Owner is the owner and developer of that parcel of real property located in Garfield County, Colorado and known as the Mahan Subdivision ("Subdivision"); WHEREAS, on September 5, 2006, the BOCC, by Resolution No. 2006-88, approved a preliminary plan for the Subdivision which, among other things, authorized the subdivision of two (2) single-family residential lots ("Preliminary Plan Approval") an extension of the Preliminary Plan Approval was granted on July 2, 2007 (extended until September 6, 2008); WHEREAS, as a condition precedent to the approval of the Final Plat of the Subdivision, submitted to the BOCC for approval as required by the laws of the State of Colorado ("Final Plat"), Owner wishes to enter into this Agreement with the BOCC; and WHEREAS, Owner has agreed to execute and deliver to the BOCC collateral or other security in a form satisfactory to the BOCC to secure and guarantee Owner's performance under this Agreement and has agreed to certain restrictions and conditions regarding the sale of properties and issuance of building permits and certificates of occupancy within the Subdivision, all as more fully set forth below. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows: 1. FINAL PLAT APPROVAL. The BOCC hereby accepts and approves the Final Plat of the Subdivision, on the date set forth above, subject to the terms and conditions of this Agreement, the Preliminary Plan Approval and the requirements of the Garfield County zoning and subdivision regulations and any other governmental or quasi -governmental regulations applicable to the Subdivision ("Final Plat Approval"). Recording of the Final Plat in the records of the Clerk and Recorder for Garfield County, Colorado shall be in accordance with this Agreement and at the time prescribed herein. 2. OWNER'S PERFORMANCE. Owner shall cause to be constructed and installed those subdivision improvements, identified in subparagraph a. below ("Subdivision Improvements"), at its own expense, including the payment of all fees required by the County and/or other governmental and quasi -governmental entities with regulatory jurisdiction over the Subdivision. The Subdivision Improvements constitute all of the improvements, which are required to be constructed by Owner under the Preliminary Plan Approval. The Subdivision Mahan Subdivision Improvements Agreement Page 1 of 11 Improvements shall be completed on or before the end of the first full year following execution of this Agreement, i.e., , 2008 (completion date), in compliance with the following: a. Plans marked "Approved for Construction" for all Subdivision Improvements, listed within Exhibit A, attached hereto and made part hereof prepared by , and submitted to the BOCC on or about 200_; the estimate of cost of completion, certified by and bearing the stamp of Owner's professional engineer licensed in the State of Colorado ("Owner's Engineer"), attached to and made a part of this Agreement by reference as Exhibit B; and all other documentation required to be submitted along with the Final Plat under pertinent sections of the Garfield County subdivision and zoning regulations ("Final Plat Documents"). b. All requirements of the Preliminary Plan Approval. c. All laws, regulations, orders, resolutions and requirements of the State of Colorado, Garfield County, and all special districts and any other governmental or quasi - governmental authority(ies) with jurisdiction. d. The provisions of this Agreement. The BOCC agrees that if all Subdivision Improvements are installed in accordance with subparagraphs 2 (a) through 2 (d), above; the record drawings to be submitted upon completion of the Subdivision Improvements as detailed in paragraph 3(g), below; and all other requirements of this Agreement, then the Owner shall be deemed to have satisfied all terms and conditions of the Final Plat Approval and the Garfield County zoning and subdivision regulations, with respect to the installation of Subdivision Improvements. 3. SECURITY FOR IMPROVEMENTS. a. Letter of Credit. As security for Owner's obligation to complete the Subdivision Improvements, Owner shall deliver to the BOCC, on or before the date of recording of the Final Plat of the Subdivision with the Garfield County Clerk and Recorder, one or more Letters of Credit in the form agreed to be acceptable to the BOCC, attached to and incorporated in this Agreement by reference as Exhibit C ("LOC"), or such other form of security as may be deemed acceptable to the BOCC as provided in paragraph 3 (g), below. The LOC shall be in the amount of $ , representing the full estimated cost of completing the Subdivision Improvements, including a sufficient contingency to cover cost changes, unforeseen costs and other variables (not less than 10% of the estimated costs and as approved by the BOCC), minus $ , representing the cost of Improvements already completed as of the date of execution of this Agreement as set forth and certified by Owner's Engineer on Exhibit B, supra.. b. Revegetation Security. Revegetation of disturbed areas in the Subdivision in the amount delineated within Exhibit B shall be secured by delivery of a separate Letter of Credit in the form hereinabove set forth or such other security as may be acceptable to the BOCC Mahan Subdivision Improvements Agreement Page 2 of 1 1 ("Revegetation LOC"). The Revegetation LOC shall be valid for a minimum of two (2) years following recording of the Final Plat. Upon establishment of vegetation, the Owner shall request review of the revegetation work by the Garfield County Vegetation Management Department, by telephone or in writing. Such review shall be for the purpose of verification of success of revegetation and reclamation in accordance with the Garfield County Weed Management Plan 2000, adopted by Resolution No. 2002-94 and recorded in the Office of the Garfield County Clerk and Recorder as Reception No. 580572, at Book 1251, Page 566, as amended, and the RevegetationlReclamation Plan for the Subdivision submitted. ii. Following receipt of written approval of the Vegetation Management Department, the Owner may submit to the BOCC, through the Building and Planning Department, a written request for release of the Revegetation LOC, along with certification of completion by the Owner, or Owner's agent with knowledge, and a copy of the written approval of the Vegetation Management Department. iii. If the Vegetation Management Department refuses approval and provides written notice of deficiency(ies), the Owner shall cure such deficiencies by further revegetation efforts, approved by the Vegetation Management Department, as such may be instituted within the two years following recording of the Final Plat. iv. If revegetation efforts are deemed unsuccessful within the two year period of time, in the sole discretion of the BOCC upon the recommendation of the Vegetation Management Department, or if the BOCC determines that the Owner will not or cannot complete revegetation, the BOCC may withdraw and employ from the Revegetation LOC such funds as may be necessary to carry out the revegetation work, up to the amount of Revegetation LOC. v. In lieu of or in addition to drawing on the Revegetation LOC, the BOCC may bring an action for injunctive relief or damages for the Owner's failure to adhere to the provisions of this Agreement related to revegetation. The BOCC shall provide the Owner a reasonable time to cure any identified deficiency prior to requesting payment from the Revegetation LOC or filing a civil action. vi. It is specifically understood that the Revegetation LOC is not subject to successive partial releases, as authorized in subparagraph 3(d) below. Further, the Revegetation LOC and the BOCC's associated rights to withdraw funds and bring a court action, may survive final release of the LOC, identified in Paragraph 3.a., hereinabove, securing Subdivision Improvements other than revegetation. c. LOC Requirements. The LOC(s) required by this Agreement shall be issued by a state or national banking institution acceptable to the BOCC. If the institution issuing the LOC(s) is not licensed in the State of Colorado and transacting business within the State of Colorado, the LOC(s) shall be "confirmed" within the meaning of the Uniform Commercial Mahan Subdivision Improvements Agreement Page 3 of 1 1 Code, Letters of Credit, §4-5-101 et seq., C.R.S., as amended, by a bank that is licensed to do business in the State of Colorado, doing business in Colorado, and acceptable to the BOCC. The LOC(s) shall be valid for a minimum of six (6) months beyond the completion date for the Subdivision Improvements set forth herein and, as to the Revegetation LOC, a minimum of two (2) years following recording of the Final Plat. If the time for completion of Improvements, including revegetation, is extended by a written amendment to this Agreement, the time period for the validity of the LOC(s) shall be similarly extended by the Owner. For each six (6) month extension, the face amount of the LOC(s), including the Revegetation LOC, at the sole option of the BOCC, shall be subject to recertification of cost of completion by Owner's Engineer and review by the BOCC for a possible increase in the face amount of the LOC, in order to assure sufficiency of the amount of security to allow possible completion of the Subdivision Improvements by the BOCC under terms of this Agreement. Additionally, should the LOC(s) become void or unenforceable for any reason, including bankruptcy of the Owner or the financial institution issuing or confirming the LOC, prior to the BOCC's approval of Owner's Engineer's certification of completion of the Subdivision Improvements, this Agreement shall become void and of no force and effect and the Final Plat shall be vacated pursuant to the terms of this Agreement. d. Partial Releases of Security. Owner shall request partial release(s) of the LOC(s) by means of submission to the Building and Planning Department of a "Written Request for Partial Release of LOC," in the form attached to and incorporated herein as Exhibit "D," accompanied by the Owner's Engineer's Certificate of Partial Completion of Improvements, stamped by Owner's Engineer. The Owner's Engineer's seal shall certify that the Subdivision Improvements have been constructed in accordance with the requirements of this Agreement, including all Final Plat Documents and the Preliminary Plan Approval. Owner may also request release for a portion of the security upon proof that 1) Owner has a valid contract with a public utility company regulated by the Colorado Public Utilities Commission obligating such company to install certain utility lines; and 2) Owner has paid to the utility company the cost of installation as required by the contract. The BOCC shall authorize successive releases of portions of the face amount of the LOC(s) as portions of the Subdivision Improvements, other than revegetation, required hereunder are certified as complete to the BOCC by the Owner's Engineer and said certification is approved by the BOCC. e. BOCC's Investigation. Notwithstanding the foregoing, upon submission of the Owner's Written Request for Partial Release of LOC, along with Owner's Engineer's Certificate of Partial Completion of Subdivision Improvements, the BOCC may review the certification and may inspect and review the Subdivision Improvements certified as complete to determine whether or not said Subdivision Improvements have been constructed in compliance with relevant specifications, as follows: If no letter of potential deficiency is furnished to Owner by the BOCC within fifteen (15) days of submission of Owner's Written Request for Partial Release of LOC accompanied by Owner's Engineer's Certificate of Partial Completion of Subdivision Improvements, all Subdivision Improvements certified as complete shall be deemed complete by the BOCC, and the BOCC shall authorize release of the appropriate amount of security. Mahan Subdivision Improvements Agreement Page 4 of 1 1 ii. If the BOCC chooses to inspect and determines that all or a portion of the Subdivision Improvements certified as complete are not in compliance with the relevant specifications, the BOCC shall furnish a letter of potential deficiency to the Owner, within fifteen (15) days of submission of Owner's Written Request for Partial Release of LOC accompanied by Owner's Engineer's Certificate of Completion of Subdivision Improvements. iii. If a letter of potential deficiency is issued identifying a portion of the certified Subdivision Improvements as potentially deficient, then all Subdivision Improvements not identified as potentially deficient shall be deemed complete, and the BOCC shall authorize release of the amount of security related to the certified Subdivision Improvements that are not identified as potentially deficient. iv. With respect to Subdivision Improvements identified as potentially deficient in a letter of potential deficiency, the BOCC shall have thirty (30) days from the date of the letter to complete the initial investigation, begun under subparagraph 3.e.ii. above, and provide written confirmation of the deficiency(ies) to the Owner. v. If the BOCC finds that the Subdivision Improvements are complete, in compliance with the relevant specifications, then the appropriate amount of security shall be authorized for release within ten (10) days after completion of such investigation. f. BOCC Completion of Improvements. If the BOCC finds, within the thirty (30) day period of time, defined in subparagraph 3 (e)(iv) above, that the Subdivision Improvements are not complete, or if the BOCC determines that the Owner will not or cannot construct any or all of the Subdivision Improvements, whether or not Owner has submitted a written request for release of LOC, the BOCC may withdraw and employ from the LOC(s) such funds as may be necessary to construct the Subdivision Improvements in accordance with the specifications, up to the face amount, or remaining face amount, of the LOC(s). In such event, the BOCC shall make a written finding regarding Owner's failure to comply with this Agreement prior to requesting payment from the LOC(s). In lieu of or in addition to drawing on the LOC(s), the BOCC may bring an action for injunctive relief or damages for the Owner's failure to adhere to the provisions of this Agreement. The BOCC shall provide the Owner a reasonable time to cure any identified deficiency(ies) prior to requesting payment from the LOC(s) or filing a civil action. g. Final Release of Security. Upon completion of all Subdivision Improvements, Owner shall submit to the BOCC, through the Building and Planning Department: 1) record drawings bearing the stamp of Owner's Engineer certifying that all Subdivision Improvements have been constructed in accordance with the requirements of this Agreement, including all Final Plat Documents and the Preliminary Plan Approval, in hard copy and a digital format acceptable to the BOCC; 2) copies of instruments conveying real property and other interests which Owner is obligated to convey to the Homeowners' Association of the Subdivision by the terms of this Agreement; and 3) a Written Request for Final Release of LOC, in the form attached to and Mahan Subdivision Improvements Agreement Page 5 of 11 incorporated herein as Exhibit "E," along with Owner's Engineer's Certificate of Final Completion of Improvements. i. The BOCC shall authorize a final release of the LOC(s) after the Subdivision Improvements are certified as final to the BOCC by the Owner's Engineer and said final certification is approved by the BOCC. If the BOCC finds that the Subdivision Improvements are complete, in accordance with the relevant specifications, the BOCC shall authorize release of the final amount of security within ten (10) days following submission of the Owner's Written Request for Final Release of LOC accompanied by the other documents required by this paragraph 3(g). ii. Notwithstanding the foregoing, upon Owner's Written Request for Final Release of LOC accompanied by Owner's Engineer's Certificate of Final Completion of Subdivision Improvements, the BOCC may inspect and review the Subdivision Improvements certified as complete. If the BOCC does so review and inspect, the process contained in paragraph 3(e) above shall be followed. iii. If the BOCC finds that the Subdivision Improvements are complete, in accordance with the relevant specifications, the BOCC shall authorize release of the final amount of security within ten (10) days after completion of such investigation. If necessary, the BOCC may complete any remaining Subdivision Improvements in accordance with process outlined in Paragraph 3(f) above. h. Substitution of Letter of Credit. The BOCC, at its sole opinion, may permit the Owner to substitute collateral other than a LOC, in a form acceptable to the BOCC, for the purpose of securing the completion of the Subdivision Improvements. i. Recording of Final Plat. The Final Plat of the Subdivision shall not be recorded until the security described in this paragraph 3 has been received and approved by the BOCC. 4. WATER SUPPLY. Prior to issuance of any certificates of occupancy by the BOCC for any residences or other habitable structures located and constructed within the Subdivision, Owner shall install and connect the water distribution system for potable water in accordance with approved plans and specifications. All easements and rights-of-way necessary for installation, operation, service and maintenance of such water supply and distribution system shall be as shown on the Final Plat. Conveyance of the water supply and distribution system, including all appurtenant real property interests which shall be conveyed by quitclaim deed and associated personal property interests, which shall be conveyed by bill of sale, shall be transferred from the Owner to the Mahan Homeowners Association, a Colorado non-profit corporation. 5. PUBLIC ROADS. There are no roads within the Subdivision that will need to be dedicated to the public as public rights-of-way. Mahan Subdivision Improvements Agreement Page 6 of 11 6. PUBLIC UTILITY RIGHTS-OF-WAY. Whether or not utility easements exist elsewhere in the Subdivision, all road rights-of-way within the Subdivision shall contain rights- of-way for installation and maintenance of utilities. Public utility easements shall be dedicated by the Owner on the face of the Final Plat, subject to the Garfield County Road and Right -of - Way Use Regulations, recorded as Reception No. 643477, in Book 1548, at Page 918. The Homeowners Association of the Subdivision shall be solely responsible for the maintenance, repair and upkeep of said public utility easements, unless otherwise agreed to with the public utility company(ies). The BOCC shall not be obligated for the maintenance, repair and upkeep of any utility easements within the Subdivision. In the event a utility company, whether publicly or privately owned, requires conveyance of the easements dedicated on the face of the Final Plat by separate document, Owner shall execute and record the required conveyance documents. 7. CONVEYANCE OF COMMON AREA PARCEL AND WATER SUPPLY SYSTEM. The Common Area Parcel and water supply system, both realty and facilities, shall be conveyed by deed (real property) and bill of sale (personal property) at the time of Final Plat Approval and shall be recorded following recordation of the Final Plat of the Subdivision. 8. INDEMNITY. The Owner shall indemnify and hold the BOCC harmless and defend the BOCC from all claims which may arise as a result of the Owner's installation of the Subdivision Improvements and any other agreement or obligation of Owner related to development of the Subdivision required pursuant to this Agreement. The Owner, however, does not indemnify the BOCC for claims made asserting that the standards imposed by the BOCC are improper or the cause of the injury asserted, or from claims, which may arise from the negligent acts or omissions of the BOCC or its employees. The BOCC shall be required to notify the Owner of the BOCC's receipt of a notice of claim or a notice of intent to sue, and the BOCC shall afford the Owner the option of defending any such claim or action. Failure to notify and provide such written option to the Owner shall extinguish the BOCC's rights under this paragraph. Nothing in this paragraph shall be construed to constitute a waiver of the Sovereign Immunity granted to the BOCC by Colorado statutes and case law. 9. ROAD IMPACT FEE. Pursuant to the Garfield County subdivision regulations, a Road Impact Fee of ($ ) has been established for the residential units within the Subdivision. Owner shall pay fifty percent (50%), i.e., ($ ) of the Road Impact Fee to the Garfield County Treasurer at or prior to the time of recording of the Final Plat. The remaining 50%, i.e., ($ ), will be collected pro rata (i.e.$ ) from lot owners each time a building permit issues for a residence within the Subdivision. 10. FEES IN LIEU OF DEDICATION OF SCHOOL LAND. The Owner shall make a cash payment in lieu of dedicating land to the RE -1 School District, calculated in accordance with the Garfield County subdivision regulations and the requirements of state law. Owner and the BOCC acknowledge and agree that the cash in lieu payment for the Subdivision is calculated as follows: Mahan Subdivision Improvements Agreement Page 7 of 11 Unimproved per acre market value of land, based upon an appraisal submitted to the BOCC by Owner of $ and Land dedication standard, provided in the Garfield County subdivision regulations of 2 single family dwelling units x acres; and Total amount of cash in lieu payment: Unimproved per acre market value of land ($ ) x land dedication standard ( ) $ The Owner, therefore, shall pay to the Garfield County Treasurer, at or prior to the time of recording of the Final Plat, ($ ) as a payment in lieu of dedication of land to the RE -1 School District. Said fee shall be transferred by the BOCC to the school district in accordance with the provisions of §30-28-133, C.R.S., as amended, and the Garfield County subdivision regulations. The Owner agrees that it is obligated to pay the above -stated fee, accepts such obligation, and waives any claim that Owner is not required to pay the cash in lieu of land dedication fee. The Owner agrees that Owner will not claim, nor is Owner entitled to claim, subsequent to recording of the Final Plat of the Subdivision, a reimbursement of the fee in lieu of land dedication to the RE -1 School District. 11. SALE OF LOTS. No lots, tracts, or parcels within the Subdivision may be separately conveyed prior to recording of the Final Plat in the records of the Garfield County Clerk and Recorder. 12. BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY. As one remedy for breach of this Agreement, the BOCC may withhold issuance of building permits for any residence or other habitable structure requiring a permit to be constructed within the Subdivision. Further, no building permit shall be issued unless the Owner demonstrates to the satisfaction of the Glenwood Springs Fire Protection District ("District") that there is adequate water available to the construction site for the District's purposes. Further, the parties agree that no certificates of occupancy shall issue for any buildings or structures, including residences, within the Subdivision until all Subdivision Improvements have been completed and arc operational as required by this Agreement. Owner shall provide the purchaser of a lot, prior to conveyance of the lot, a signed copy of a form in substantially the same form as that attached to and incorporated herein by reference as Exhibit "F," concerning the restrictions upon issuance of building permits and certificates of occupancy detailed in this Agreement, Final Plat Approval and Preliminary Plan Approval. 13. ENFORCEMENT. In addition to any rights which may be provided by Colorado statute, the withholding of building permits and certificates of occupancy provided for in paragraph 12 above, and the provisions for release of security, detailed in paragraph 3 above, it is mutually agreed by the BOCC and the Owner that the BOCC, without making an election of Mahan Subdivision Improvements Agreement Page 8 of! 1 remedies, or any purchaser of any lot within the Subdivision shall have the authority to bring an action in the Garfield County District Court to compel enforcement of this Agreement. Nothing in this Agreement, however, shall be interpreted to require the BOCC to bring an action for enforcement or to withhold permits or certificates or to withdraw and use security. Nor shall this paragraph or any other provision of this Agreement be interpreted to permit the purchaser of a lot to file an action against the BOCC. 14. CONSENT TO VACATE PLAT. In the event the Owner fails to comply with the terms of this Agreement, the BOCC shall have the ability to vacate the Final Plat as it pertains to any lots for which building permits have not been issued. As to lots for which building permits have been issued, the plat shall not be vacated and shall remain valid. In such event, the Owner shall provide the BOCC a survey, legal description and a plat showing the location of any portion of the Final Plat so vacated and shall record the plat in the Office of the Garfield County Clerk and Recorder. If such plat is not recorded by the Owner, the BOCC may vacate the plat, or portions thereof, by Resolution. 15. NOTICE BY RECORDATION. This Agreement shall be recorded in the Office of the Garfield County Clerk and Recorder and shall be a covenant running with title to all lots, tracts, and parcels within the Subdivision. Such recording shall constitute notice to prospective purchasers or other interested parties as to the terms and provisions thereof. 16. SUCCESSORS AND ASSIGNS. The obligations and rights contained herein shall be binding upon and inure to the benefit of the successors and assigns of the Owner and the BOCC. 17. IDENTIFICATION OF CONTRACT ADMINISTRATORS AND NOTICE PROVISIONS. All notices required or permitted by this Agreement shall be in writing and shall be deemed effective when received by the recipient party via personal or messenger service delivery, facsimile transmission or United States certified mail (postage prepaid, return receipt requested), in all cases addressed to the person for whom it is intended at the address or facsimile number set forth below: Owner: BOCC: Mahan Properties 0648 County Road 126 Glenwood Springs, CO 81601 (970) 945-0319 Board of County Commissioners of Garfield County, Colorado c/o Fred Jarman, Planning Director 108 8th Street, Suite 401 Glenwood Springs, CO 81601 Phone: (970) 945-8212 Fax: (970) 384-3470 Mahan Subdivision Improvements Agreement Page 9 of 11 Owner and the BOCC hereby warrant and confirm that the representatives of the Owner and the BOCC, identified above, are the authorized representatives of the parties for purposes of contact administration and notice under this Agreement. 18. AMENDMENT. This Agreement may be modified from time to time, but only in writing signed by the parties hereto, as their interests then appear. The parties, however, may change the identification of notice recipients and contract administrators and the contact information, provided in paragraph 17 above, in accordance with the notice provisions and without formal amendment of this Agreement. 19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 20. VENUE AND JURISDICTION. Venue and jurisdiction for any cause arising out of or related to this Agreement shall lie with the District Court of Garfield County, Colorado, and this Agreement shall be construed according to the laws of the State of Colorado. IN WITNESS WHEREOF, the parties have signed this Agreement to be effective upon the date of Final Plat Approval for the Subdivision. ATTEST: Clerk to the Board BOARD OF COUNTY COMMISSIONERS GARFIELD COUNTY, COLORADO By: Chairman Date: MAHAN PROPERTIES, a Colorado partnership By: James P. Mahan, Jr., Partner [intentionally left blank—notary block on next page] Mahan Subdivision Improvements Agreement Page 10 of 11 STATE OF COLORADO ) ) ss COUNTY OF GARFIELD ) Subscribed and sworn to before me this day of , 2008, by James P. Mahan, Jr. as partner of Mahan Properties. WITNESS my hand and official seal. My commission expires: Notary Public Mahan Subdivision Improvements Agreement Page 11 of 1 1