HomeMy WebLinkAbout1.04 Subdivision Improvements AgreementTHE SAGES AT ASPEN GLEN
SUBDIVISION IMPROVEMENTS AGREEMENT
THIS SAGES AT ASPEN GLEN SUBDIVISION IMPROVEMENTS AGREEMENT
("SIA") is made and entered into this day of September, 2017, by and between GERD
ZELLER ("Owner") and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD
COUNTY, COLORADO, ("BOCC") acting for the County of Garfield, State of Colorado, as a
body politic and corporate, directly or through its authorized representatives and agents.
Recitals
Owner is the owner and developer of the Sages at Aspen Glen Subdivision (the
"Subdivision"), which property is depicted on the Final Plat of The Sages at Aspen Glen
Subdivision ("Final Plat" or "Final Plat of the Subdivision"). The real property subject to this
SIA is described in that Final Plat, recorded on at Reception Number
of the real property records of Garfield County, Colorado and incorporated
by this reference.
On October 3, 2011, the BOCC, by Resolution No. 2011-54, recorded at Reception
Number 808880 of the real property records of Garfield County, Colorado and incorporated by
this reference, approved a preliminary plan for the Subdivision which, among other things,
would create seven (7) single-family residential lots, three (3) duplex residential lots, and four
open space/common area parcels ("Preliminary Plan Approval").
As a condition precedent to the approval of the Final Plat submitted to the BOCC as
required by the laws of the State of Colorado and by the Garfield County Land Use and
Development Code, as amended ("LUDC"), Owner wishes to enter into this SIA with the
BOCC.
Owner has agreed to execute and deliver a letter of credit 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 foregoing recitals and the mutual covenants and
promises contained herein, the BOCC and Owner ("Parties") agree as follows:
AGREEMENT
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 SIA, the
Preliminary Plan Approval, and the requirements of the LUDC and any other governmental or
quasi -governmental regulations applicable to the Subdivision ("Final Plat Approval").
Recording of the Final Plat in the real property records of the Garfield County Clerk and
Recorder shall be in accordance with this SIA and at the time prescribed herein.
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2. OWNERS PERFORMANCE AS TO SUBDIVISION IMPROVEMENTS.
a. Completion Date/Substantial Compliance. Owner shall cause to be constructed and
installed the subdivision improvements, identified in the Exhibits defined in
subparagraph 2 (a)(i), below ("Subdivision Improvements") at Owner's expense,
including payment of fees required by Garfield County and/or other governmental and
quasi -governmental entities with regulatory jurisdiction over the Subdivision. The
Subdivision Improvements shall be completed on or before the end of the first full year
following execution of this SIA ("Completion Date"), in substantial compliance with the
following:
Plans marked Approved for Construction for all Subdivision Improvements
prepared by SGM ("Owner's Engineer") and submitted to the BOCC on
September , 2016, such plans being summarized in the list of drawings
attached to and made a part of this SIA by reference as Exhibit A; the estimate of
cost of completion certified by and bearing the stamp of Owner's professional
engineer licensed the State of Colorado er's En_ineer" , attaced to and
ma • e a .art of this SIA . re erence a'x ibit B, ich estimate shall include
an additional 10%perzent of the total for con urgencies; and all other
documentation required to be submitted along with the Final Plat under pertinent
sections of the LUDC ("Final Plat Documents")
ii. All requirements of the Preliminary Plan Approval.
iii. All laws, regulations, orders, resolutions and requirements of Garfield County
and all special districts and any other governmental entity or quasi -governmental
authorities with jurisdiction.
iv. The provisions of this SIA.
b. Satisfaction of Subdivision Improvements Provisions. The BOCC agrees that if all
Subdivision Improvements are constructed and installed in accordance with this
paragraph 2; the record drawings have been submitted upon completion of the
Subdivision Improvements, as detailed in paragraph 3(c), below; and all other
requirements of this SIA have been met, then the Owner shall be deemed to have satisfied
all terms and conditions of the Preliminary Plan Approval, the Final Plat Documents and
the LUDC, with respect to the installation of Subdivision Improvements.
3. SECURITY FOR SUBDIVISION IMPROVEMENTS (EXCEPT RE -
VEGETATION).
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a. Subdivision Improvements Letter of Credit and Substitute Collateral. As security
for Owner's obligation to complete the Subdivision Improvements, other than
revegetation, Owner shall deliver to the BOCC, on or before the date of recording
of the Final Plat of the Subdivision, a Letter of Credit in the form agreed to be
acce... - to the BOCC, attached to and incorporated in this SIA by reference as
OC") or in a form consistent with the Uniform Commercial Code,
C.R.S. § 4-1-101, et seq. and approved by the BOCC. The LOC shall be in the
amount of One Million, Twenty-seven Thousand, Fifty-one and 50/100 Dollars
($1,027,051.50), representing the full estimated cost of completing the Subdivision
Improvements, with a sufficient contingency to cover cost changes, unforeseen
costs and other variables (not less than 10% of the estimated cost and as approved
by the BOCC), as set forth and certified by Owner's Engineer on Exhibit B, to
guarantee completion of the Subdivision Improvements. The LOC shall be valid
for a minimum of six (6) months beyond the Completion Date for the Subdivision
Improvements set forth in Paragraph 2(a), above. The BOCC, at its sole option,
may permit the Owner to substitute collateral other than a Letter of Credit, in a
form acceptable to the BOCC, for the purpose of securing the completion of the
Subdivision Improvements subject of this Paragraph 3(a).
b. LOC Requirements and Plat Recording. The LOC required by this SIA shall be
issued by a state or national banking institution acceptable to the BOCC. If the
institution issuing the LOC is not licensed in the State of Colorado and transacting
business within the State of Colorado, the LOC shall be confirmed within the
meaning of the Uniform Commercial 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
shall state that presentation of drafts drawn under the LOC shall be at an office of
the issuer or confirmer located in the State of Colorado. The Final Plat of the
Subdivision shall no .e recorded until the securit des
-. . .
has been received and a roved,y the BOCC_
c. Extension of LOC Expiration Date. If the Completion Date, identified in
paragraph 2 (a) above, is extended by a written amendment to this SIA, the time
period for the validity of the LOC shall be similarly extended by the Owner. For
each six (6) month extension, at the sole option of the BOCC, the face amount of
the LOC shall be subject to re -certification by Owner's Engineer of the cost of
completion and review by the BOCC.
d. Unenforceable LOC. Should the LOC expire or become void or unenforceable for
any reason, including bankruptcy of the Owner or the financial institution issuing
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or confirming the LOC, prior to the BOCC's approval of Owner's Engineer's
certification of completion of the Subdivision Improvements, this SIA shall
become void and of no force and effect and the Final Plat shall be vacated pursuant
to the terms of this SIA.
e. Partial Releases of Security. Owner may request partial releases of the LOC, and
shall do so by means of submission to the Garfield County Building and Planning
Department of a "Written Request for Partial Release of LOC", in the form
attached to and incorporated by this reference as Exhibit D, accompanied by the
Owner's Engineer's stamped certificate of partial completion of improvements.
The Owner's Engineer's seal shall certify that the Subdivision Improvements have
been constructed in accordance with the requirements of this SIA, 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 as portions of the Subdivision Improvements, dealt with in this Paragraph
3, are certified as complete to the BOCC by the Owner's Engineer and said
certification is approved by the BOCC.
f. 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 improvements, the BOCC may
review the certification and may inspect and review the Subdivision Improvements
certified as complete to determine whether or not they have been constructed in
compliance with relevant specifications, as follows:
i. If no letter of potential deficiency is furnished to Owner by the BOCC
within fifteen (15) business days of submission of Owner's Written
Request for Partial Release of LOC, accompanied by Owner's Engineer's
certificate of partial completion of improvements, all Subdivision
Improvements certified as complete shall be deemed approved by the
BOCC, and the BOCC shall authorize release of the appropriate amount of
security.
ii. 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) business days of submission
of Owner's Written Request for Partial Release of LOC, accompanied by
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g.
Owner's Engineer's certificate of partial completion of improvement.
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 approved by the BOCC, and the BOCC shall authorize release of
the amount of security related to the Subdivision Improvements certified
as complete and 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 (f)(ii) above, and provide written
confirmation of the deficiencies 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) business days
after completion of such investigation.
BOCC Completion of Improvements and Other Remedies. If the BOCC finds,
within the thirty (30) day period of time, defined in subparagraph 3(f)(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 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. In
such event, the BOCC shall make a written finding regarding Owner's failure to
comply with this SIA prior to requesting payment from the LOC, in accordance
with the provisions of Article 13 of the LUDC. In lieu of or in addition to drawing
on the LOC, the BOCC may bring an action for injunctive relief or damages for
the Owner's failure to adhere to the provisions of this SIA regarding Subdivision
Improvements. The BOCC shall provide the Owner a reasonable time to cure any
identified deficiencies prior to requesting payment from the LOC or filing a civil
action.
h. Final Release of Security. Upon completion of all Subdivision Improvements,
Owner shall submit to the BOCC, through the Community Development
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 SIA, including all Final Plat Documents and the Preliminary
Plan Approval, in hard copy and digital format acceptable to the BOCC; 2) copies
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of instruments conveying real property and other interests which Owner is
obligated to convey to the Homeowner's Association of the Subdivision [or any
statutory special district or other entity] at the time of Final Plat Approval; and 3) a
Written Request for Final Release of LOC, in the form attached to and
incorporated herein as Exhibit E, along with Owner's Engineer's stamp and
certificate of final completion of improvements.
The BOCC shall authorize a final release of the LOC 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) business days following submission of
the Owner's Written Request for Final Release of LOC accompanied by
the other documents required by this paragraph 3(h).
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 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.f., 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
final release of security within ten (10) days after completion of such
investigation.
iv. If the BOCC finds that the Subdivision Improvements are not complete, in
accordance with the relevant specifications, the BOCC may complete
remaining Subdivision Improvements, or institute court action in
accordance with the process outlined in paragraph 3.g., above.
4. SECURITY FOR REVEGETATION (If Required). > Ref drt% 0
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The application for Final Plat for The Sages at Aspen Glen does not require security ro
revegetation.
5. WATER SUPPLY [AND WASTEWATER COLLECTION]. As stated in paragraph
13, below, prior to issuance by the BOCC of any certificates of occupancy for any
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residences or other habitable structures constructed within the Subdivision, Owner shall
install, connect and make operable a water supply and distribution system for potable
water, fire protection, non -potable irrigation water, and a wastewater/sewer collection
system 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 systems and wastewater collection system shall be as shown on the Final
Plat. Owner shall deposit with the Garfield County Clerk and Recorder executed originals
of the instruments ofconveyance for easements appurtenant to the water and wastewater
systems, for recordation following recording of the Final Plat and this SIA. All facilities
and equipment contained within the water supply and wastewater collection systems shall
be transferred by Owner to the Homeowner's Association of the Subdivision or Special
Districts by bill of sale. If a third party water or sewer service entity requires warranty of
the systems, Owner shall provide proof to the BOCC that such warranty is in effect and, if
necessary, has been assigned.
6. PUBLIC ROADS. All roads within the Subdivision shall be dedicated by the Owner to
the public as public rights-of-way and shall be accepted by the BOCC, on behalf of the
public, on the face of the Final Plat. The Homeowner's Association of the Subdivision
shall be solely responsible for the maintenance, repair and upkeep of said rights-of-way,
including the traveled surface of the roadways and portions of the rights-of-way outside of
the traveled surface. The BOCC shall not be obligated to maintain any road rights-of-way
within the Subdivision.
7. 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 to the public utilities 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 the records of the Garfield County Clerk and Recorder, as amended. The
Homeowner's 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 companies. The BOCC shall not be obligated for the maintenance,
repair and upkeep of any utility easement 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.
8. CONVEYANCE OF OPEN SPACE. The common open space parcel identified on the
Final Plat of the Subdivision shall be conveyed by Owner to the Homeowner's Association
at the time of Final Plat Approval. Owner shall deposit with the Garfield County Clerk and
Recorder executed original of the instrument of conveyance for recordation following
recording of the Final Plat and this SIA.
9. 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 (including off-site improvements and revegetation) and any
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other agreement or obligation of Owner, related to development of the Subdivision,
required pursuant to this SIA. 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 notify the Owner of receipt by the BOCC
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 governmental immunity granted
to the BOCC by Colorado statutes and case law.
10. ROAD IMPACT FEE. NO ROAD IMPACT FEE IS DUE
11. FEES IN LIEU OF DEDICATION OF SCHOOL LAND. Owner shall make a cash
deposit in lieu of dedicating land to the Roaring Fork School District, calculated in
accordance with the LUDC and the requirements of state law. The Owner and the BOCC
acknowledge and agree that the cash in lieu payment for the Subdivision is calculated as
ollows: for the RE -1 School District:
Note: Final Appraisal shall be submitted prior to recording of Final Plat and fees in lieu of
dedication of school land will be paid. Currently, Owner is submitting an Opinion of
Value.
nimproved per acre market value of land, based upon an appraisal submitted to the BOCC
by Owner, i.e. $ ; and
Land dedication standard: Seven (7) single-family dwelling units x 4.24 acres; Six (6) multi-
family dwelling units x 4.24 acres equals Fifty-five and 12/100 (55.12) acres.
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 Roaring Fork 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 LUDC.
The Owner agrees that it is obligated to pay the above -stated fee, accepts such
obligations, 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 Roaring Fork School
District.
12. 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.
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13. BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY. As one
remedy for breach of this SIA, the BOCC may withhold issuance of building
permits for any residence or other habitable structure to be constructed within
the Subdivision. Further, no building permit shall be issued unless the Owner
demonstrates to the satisfaction of the Carbondale and Rural Fire Protection
District ("District"), if the Fire District has so required, that there is adequate
water available to the construction site for the District's purposes (and all
applicable District fees have been paid to the District). No certificates of
occupancy shall issue for any habitable building or structure, including
residences, within the Subdivision until all Subdivision Improvements have been
completed and are operational as required by this SIA.
14. CONSENT TO VACATE PLAT. In the event the Owner fails to comply with
the terms of this SIA, 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 plat,
suitable for recording, showing the location by surveyed legal description of any
portion of the Final Plat so vacated by action of the BOCC. If such a Plat is not
signed by the BOCC and recorded, or if such Plat is not provided by the Owner,
the BOCC may vacate the Final Plat, or portions thereof, by resolution. (It is
specifically agreed that this paragraph 14 applies to the Subdivision as a multi -
phased project and, therefore, in the event the BOCC vacates the Final Plat as to
the Subdivision, subject of this SIA, the BOCC may also withhold approval of a
proposed final plat for a future phase, if Subdivision Improvements covered by
this SIA are not completely installed and operable).
15. ENFORCEMENT. In addition to any rights provided by Colorado statute, the
withholding of building permits and certificates of occupancy, provided for in
paragraph 13, above, the provisions for release of security, detailed in paragraph
3, above, and the provisions for plat vacation, detailed in paragraph 14, above, it
is mutually agreed by the BOCC and the Owner, that the BOCC, without making
an election of remedies, and 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 SIA. Nothing in this SIA, however, shall be
interpreted to require the BOCC to bring an action for enforcement or to
withhold permits or certificates or to withdraw unused security or to vacate the
Final Plat or a portion thereof, nor shall this paragraph or any other provision of
this SIA be interpreted to permit the purchaser of a lot to file an action against
the BOCC.
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16. NOTICE BY RECORDATION. This SIA 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 and other interested persons as to the
terms and provisions of this SIA.
17. 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.
18. CONTRACT ADMINISTRATION AND NOTICE PROVISIONS. The
representatives of the Owner and the BOCC, identified below, are authorized as
contract administrators and notice recipients. Notices required or permitted by
this SIA shall be in writing and shall be effective upon the date of delivery, or
attempted delivery if delivery is refused. Delivery shall be made in person, by
certified return receipt requested U.S. Mail, receipted delivery service, or facsimile
transmission, addressed to the authorized representatives of the BOCC and the
Owner at the address or facsimile number set forth below:
Owner:
BOCC:
Gerd Zeller
P.O. Box 37
Aspen, Colorado 81612
Phone:970-963-7487
With copy to:
Whitsitt & Gross, P.C.
320 Main Street, Suite 200
Carbondale, CO 81623
Phone: 970-963-6363
Fax: 970-963-6667
Board of County Commissioners
of Garfield County, Colorado
c/o Community Development Director
108 8th Street, Suite 401
Glenwood Springs, CO 81601
Phone: (970) 945-8212
Fax: (970) 384-3470
19. AMENDMENT AND SUBSTITUTION OF SECURITY. This SIA may be modified,
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but only in writing signed by the parties hereto, as their interests then appear. Any such
amendment, including, by way of example, extension of the Completion Date, substitution
of the form of security, or approval of a change in the identity of the security
provider/issuer, shall be considered by the BOCC at a scheduled public meeting. If such an
amendment includes a change in the identity of the provider/issuer of security, due to a
conveyance of the Subdivision by the Owner to a successor in interest, Owner shall provide
a copy of the recorded assignment document(s) to the BOCC, along with the original
security instrument. Notwithstanding the foregoing, the parties may change the
identification of notice recipients and contract administrators and the contact information
provided in paragraph 18, above, in accordance with the provisions of that paragraph and
without formal amendment of this SIA and without consideration at a BOCC meeting.
20. COUNTERPARTS. This SIA 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.
21. VENUE AND JURISDICTION. Venue and jurisdiction for any cause arising out of or
related to this SIA shall lie with the District Court of Garfield County, Colorado, and this
SIA shall be construed according to the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties have signed this SIA to be effective upon the date of
Final Plat Approval for the Subdivision.
BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO
ATTEST:
By:
Clerk to the Board Chairman
Date:
OWNER:
By:
Gerd Zeller
Date:
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STATE OF COLORADO )
)ss.
COUNTY OF GARFIELD )
Subscribed and sworn to before me by Gerd Zeller, as Owner of the Sages at Aspen Glen
Subdivision, this day of , 2017.
WITNESS my hand and official seal.
My commission expires:
Notary Public
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