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Home My WebLink About4.0 SIA's First Amendment• 1 IICIII I1II1 111111 111111 III 1111 1111111 111 11111 IIII IIII 652574 05/24/2004 09.26A B1589 P914 M ALSDORF 1 of 7 R 0.00 D 0.00 GAR.FIELD COUNTY CO AMENDMENT NO. 1 SUBDIVISION IMPROVEMENTS AGREEMENT Valley View Village Subdivision - Phase A THIS AMENDMENT NO.1, Subdivision Improvements Agreement, Valley View Village Subdivision - Phase A ("Amendment") is made and entered into by and between DARTER, L.L.C. ("Owner/Developer") and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, STATE OF COLORADO ("County"). WHEREAS, Owner/Developer, Owner/Developer's predecessor in interest and the County entered into that certain "Subdivision Improvements Agreement" related to Phase A of the Valley View Village Subdivision at Battlement Mesa PUD, recorded as Reception No. 643045, in Book 1546, at Page 964 of the Garfield County Clerk and Recorder's records ("SIA"); and WHEREAS, consistent with Paragraph 3 of the SIA, title to the real estate described in Exhibit A of the SIA ("Phase A") was conveyed to Owner/Developer by Deed recorded as Reception No. 348859, in Book 642, at Page 65; and WHEREAS, Owner/Developer is in the process of constructing improvements for Phase A, and Owner/Developer and County find it appropriate to enter into this Amendment to deal with certain encroachments on and damage to property owned by the County adjacent to Phase A. NOW, THEREFORE, for and in consideration of the premises and the following mutual covenants and agreements, the parties hereby agree as follows: 1. Paragraph 1 of the SIA, "Definitions", is amended by the addition of a new term, as follows: "County -owned Property" means that parcel of land consisting of approximately 2 acres, zoned "PSA" and labeled by Assessor's Parcel Number 2407-181-00-001, located in the northwest corner of the land described on the plat identified as Sheet No. 2 of 3, Final Plat of Valley View Village Subdivision at Battlement Mesa P.U.D., recorded as Reception No. 643044, in Book 1546, at Page 963, and described on the Exemption Plat recorded as Reception No. 643038. May 7, 2004 1 • 1111111 11111 111111 111111 1111111 11E1111 11111 11111111 65257 05/24/2004 09 A 61589 P915 M ALSDORF 2 of 7 R 0.00 D 0.00 GARFIELD COUNTY CO • 2. Paragraph 4 of the SIA, "Owner's Performance", is amended by the addition of the following language, including subparagraphs "F" through "J", which shall read as follows: Owner/Developer recognizes and agrees that prior to March 26, 2004, Owner/Developer's contractor(s) or agent(s) cleared and grubbed approximately one (1) acre of the western portion of the County -owned Property ("western portion"), removing the overburden of rocks, vegetation and topsoil. County and Owner/Developer recognize and agree that Owner/Developer's contractor(s) or agent(s): (i) allowed placement of personal property, whether or not owned by Owner/Developer, on the County - owned Property; (ii) removed all equipment, construction materials and personal property on or before close of business Friday, March 26, 2004, at the verbal request of representatives of the County; (iii) removed all stockpiled overburden and debris on or before Monday, April 5, 2004; and (iv) installed plastic fencing marking the boundary line between Phase A and the County -owned Property. May 7. 2004 F. Owner/Developer shall ensure that all contractors and subcontractors, of whatever tier, and any other entities or individuals working on Phase A are made aware of the property line and do not use the County -owned Property for construction staging, parking, or any other purpose, except that Owner/Developer or its agents may enter upon the County -owned Property for the purpose of fulfilling its obligations under this First Amendment. G. Owner/Developer shall re -vegetate the disturbed western portion as soon as possible, and in no event later than April 30,2004, to ensure maximum growth during the spring and summer of 2004, in accordance with a re - vegetation plan. The plan shall be consistent with the seed mix, topsoil, fertilizer, mulch, and timing requirements of the Garfield County Engineer's "Specification No. 02821", and shall consist of (i) a plant materials list; (ii) identification of type and amount of topsoil; (iii) description of weed management; and (iv) a planting and watering schedule. The watering schedule shall. provide adequate moisture for initial germination and on-going 2 • 111111 11111 1 11111 111111 111 1111 11111111 111 11111 1111 11 1 652574 05/24/2004 09:26A B1589 P916 M RLSDORF 3 of 7 R 0.00 D 0.00 GARFIELD COUNTY CO • growth, with up to one application four times per week, unless there is sufficient rain fall, throughout the growing season. The revegetation plan shall be reviewed by the Garfield County Vegetation Management Director, and seeding shall not be commenced until the approval of the Vegetation Management Director is received, in writing, by Owner/Developer or the authorized and identified representative of Owner/developer. The Owner/Developer shall apply topsoil to a depth of six (6) to twelve (12) inches, before seeding. The disturbed topsoil may be replaced with the topsoil removed from the western portion or with imported topsoil, as long as the topsoil is adequate in quality and depth to sustain re -vegetation. The area shall be crimped and mulched with straw, and otherwise in accordance with Specification No. 02821. Pe -vegetation shall be accomplished by Owner/Developer, including without limitation the cost of watering and weed management, without cost or expense to the County. H. Owner/Developer and County recognize and agree that dust control is necessary due to removal of the overburden. Owner/Developer, therefore, shall provide dust control on the western portion by application of water, until such time as revegetation efforts have eliminated the movement of dirt, dust and vegetative debris or until the Letter of Credit, described in Paragraph 5, subparagraph F below, has been released, whichever occurs first. T. Owner/Developer and County recognize and agree that latent drainage problems, not apparent from the County's reasonable observation and inspection prior to execution of this Amendment, may arise due to the activities of Owner/Developer's contractor(s) or agent(s) on the County -owned Property. Owner/Developer's Engineer has determined that the natural southwesterly drainage pattern on the County - owned Property has not been destroyed, as stated in the opinion letter of High Country Engineering, Inc., attached to and incorporate May 7, 2004 3 • 1111111111111111I11111111111III11111111111illi)IIIIIIII 652574 05/24/2004 09:26A 81589 P917 M RLSDORF 4 of 7 R 0.00 D 0.00 GARFIELD COUNTY CO in by this reference as "Amendment Exhibit No. 1". However, Owner/Developer and County recognize and agree that disruption to the natural drainage may have occurred and mitigation is necessary for at least the period of time until revegetation is established. Owner/Developer, therefore, agrees to install temporary drainage/erosion control, in the form of approximately Two Hundred Fifty (250) linear feet of silt fencing, and to provide further mitigation, upon the written request of the County, by means of installation of erosion control blankets. The silt fencing shall be installed on or before April 30, 2004. J. Work by Owner/Developer or Owner/Developer's agent(s) or contractor(s) on the western portion shall be accomplished in accordance with Owner/Developer's state and federal water quality and waste water discharge permit(s), including without limitation Owner/Developer's "NPDES" permit. 3. Paragraph 5, "Security for Improvements", shall be amended by the addition of one(1) new paragraph,"F",which shall read: F. Security for Revegetation of the Western Portion of County -owned Property. The re - vegetation of the western portion, detailed in Paragraph 4, subparagraphs F through H, above, shall be accomplished in accordance with Owner/Developer's revegetation plan, as approved by the County Vegetation Management Director, and shall be secured by an irrevocable Letter of Credit in the amount of Two Thousand Five Hundred Dollars ($2,500.00) from Owner/Developer or its agent to the County, delivered to the County by close of business on May 14, 2004. Said Letter of Credit may be a separate instrument, in a form acceptable to the County, or Owner/Developer's obligation may be met by an increase in the dollar amount of the already existing Letter of Credit, specified in Paragraph 5, subparagraph C., above. The County may hold the security for a two (2) year period of time m"7,2004 4 • • 1111111111111111111111111111111111111111111111111111111 652574 05/24/2004 09:26A B1589 P918 M ALSDORF 5 of 7 R 0.00 D 0.00 GARFIELD COUNTY CO following the 2004 spring/summer growing season, i.e. until June 1, 2006, in order to verify the success of revegetation efforts. Certifications and the final release of security for revegetation, upon expiration of said two-year period of time, shall be by procedures substantially the same as the procedures outlined above in the section entitled "Partial Releases of Security", Paragraph 5., subparagraph B., above, with a certification of completion submitted by the Owner/Developer and the release of security approved by the Garfield County Vegetation Management Director prior to presentation of a release document, in a form approved by the County, to the Garfield County Board of County Commissioners. Partial releases, however, shall not occur as to revegetation security. 4. Paragraph 11, "Indemnity", is deleted and replaced with the following: 11. Indemnity. To the extent allowed by law, the Owner/Developer agrees to indemnify and hold the County harmless and defend the County from all claims that may arise as a result of the Owner's/Developer's installation of the Improvements required by this Agreement, and the work done on County -owned Property, specified in Paragraph 4, subparagraphs G through J, above. However, Owner/Developer does not indemnify the County for claims made asserting that the standards imposed by the County, the Battlement Mesa Metropolitan District or other utility provided are improper or the cause of the injury asserted. May 7, 2004 The County shall notify the Owner/Developer of receipt of any notice of claim, or a notice of intent to sue, and shall afford the Owner/Developer the option of defending any such claim or action. Failure to notify and provide such written option to the Owner/Developer within fifteen (15) days of any such notice shall extinguish the County's rights under this paragraph. Nothing herein shall be interpreted to require Owner/Developer to indemnify the County from any claims arising from the intentional or negligent acts or omissions of the County, its agents or employees. Nothing herein shall be interpreted as a waiver of 5 • • 1ILI I I Bill IIl Ill 11111 1 1111 111 11111 Illi 652574 05/24/2004 09 26A B1589 P919 M RLSDORF 6 of 7 R 0.00 D 0.00 GARFIELD COUNTY CO sovereign immunity to which the County is otherwise entitled. 5. Other than as amended above, the SIA shall remain in full force and effect. 6. Upon execution by the parties, this Amendment No. 1 shall be recorded in the office of the Garfield County Clerk and Recorder. WHEREFORE, the partie ave executed this dment No. 1 to be effective March 26, 2004, • matter the dat of - ecution. ,,''A;C'TE -D Cl: rk :the Board OARD OF CO TY •MMISSIONERS 0 GARFI Lr CO TY, C ORADO By: Joh .rti C' airm Dat-: 5-�< OWNEF EVELOPER - DART R, LLC. STATE OF COLORADO ) ;. )ss. kY �; County of ;//' ) Oy-�3JRAH A,.: r, 1 FULLER U Subscribed and sworn to before me this day of fi -.7).. .+ 034 , 2004, by Terry Lawrence, Preside ' Fd€r-:OLO author ed representative of Darter,.'' LLC. '''•0.ir.f May 7, 2004 Notary Public My Commission expires: Cr ZZ) 9&05- 6