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HomeMy WebLinkAboutC87-028 Ninth Amended SIA for Arrowhead at Vail1 5 3 4 CE"F � fi sc ����- E 000 L C TY. RECORDER LOCK..... 1&4 - PAGE NINTH AMENDED JAN I '-3 24 F '0 SUBDIVISION IMPROVEMENTS AGREEMENT C87-28-28 THIS AGREEMENT is made and entered into this 12th day of November, 1956, by and between ARROWHEAD AT VAIN, a ,point venture, hereinafter referred to as the "Subdivider,' and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, hereinafter referred to as the "County. RECITALS A. In accordance with Colo. Rev. Stat. 30-28-137, as amended, the Subdivider and the County have previously entered into a Subdivision Improvements Agreement (the "Original Agreement") regarding improvements to be completed in the subdivision known as Arrowhead at Vail (the "Subdivision"). The Original Agreement was dated October 1B, 19B3, and recorded January 3, 1984, in Book 375 at Page 551, and amended by instrument dated April 25, 1984, and recorded April 26, 1984, in Book 383 at Page 985, both in the real property records of the C7 County of Eagle, State of Colorado. epi B. The Original Agreement was further amended and C restated by the following: (i) that certain First Amended Subdivision Improvements Agreement (the "First Amended Agreement") dated April 25, 1984, in Book 383 at Page 988; (ii) that certain Second Amended Subdivision Improvements Agreement (the "Second Amended Agreement") dated July 25, 1984, and recorded August 22, 1984, in Book 393 at Page 97; (iii) that certain Third Amended Subdivision Improvements Agreement (the "Third Amended Agreement") dated August 22, 1984, and recorded August 22, 1984, in Book 393 at Page 103; (iv) that certain Fourth Amended Subdivision Improvements Agreement (the "Fourth Amended Agreement") dated November 14, 1984,and recorded November 15, 1984, in Book 399 at Page 791; (v) that certain Fifth Amended Subdivision Improvements Agreement (the "Fifth Amended Agreement") dated December 26, 1984, and recorded January 9, 1985, in Book 404 at Page 557; a i (vi) that certain Sixth Amended Subdivision Improvements Agreement (the "Sixth Amended Agreement") dated February 8, 1985, and recorded March 1, 1985, in Book 407 at Page 502; (vii) that certain Seventh Amended and Restated Subdivision Improvements Agreement (the "Seventh Amended Agreement") dated May 14, 1985, and recorded May 15, 1985, in Book 414 at Page 262; (viii) that certain Eighth Amended Subdivision Improvements Agreement (the "Eighth Amended Agreement) dated November 12, 1985, and recorded November 1, 1985, in Book 429 at Page 597; all in the real property records of Eagle County, Colorado. The Eighth Amended Agreement pertained to those portions of the Subdivision platted as Arrowhead at Vail Filing Now 10, ("Filing No. 10"), Arrowhead at Vail Filing No. 11 ("Filing No. 11"), Arrowhead at Vail Filing No, 12 ("Filing No. 12"), Arrowhead at Vail Filing No. 15 ("Filing No. 15"), Arrowhead at Vail Filing No. 17 ("Filing No.17"), Arrowhead at Vail Filing No. 19 ("Filing No. 19"), and Arrowhead at Vail Filing No. 247 ("Filing No. 247"). (The filings listed in this paragraph are sometimes referred to collectively as the "Filings" in this Agreement). C. The Subdivider, as a condition of the County's continued approval of the platted filings enumerated above, wishes to further amend and restate the Eighth Amended Agreement, also in accordance with Colo. Rev, Stat. 30-28-137, to restate the Subdivider's obligations under the Eighth Amended Agreement and to document certain changes in the Subdivider's obligations to the County resulting from the expiration of warranty periods established by the County. O. Pursuant to the statutory authority referred to above, the Subdivider is obligated to provide security or collateral sufficient in the judgment of the County to make reasonable provisions for completion of certain improvements, as set forth in Exhibit A attached to and incorporated in this Agreement by this reference. E. The Subdivider wishes to provide collateral to guarantee performance of this Agreement, including construction of the above -referenced improvments, by means of a promissory note and a deed of trust COVENANTS In consideration of the following mutual covenants and agreements, the Subdivider and the County agree to amend and restate the Eighth Amended Agreement as follows: 1. Improvements. The Subdivider hereby agrees, at its sole cost and expense, to furnish all equipment and materials necessary to perform and complete, in a good and workmanlike manner, all improvements as shown in the final plat documents for the Subdivision, in accordance with all plans and specifications for the Subdivision filed in the office of the County Engineer and/or Department of Community Development, and to do all work incidental thereto according to and in compliance with the following: a. All final plat documents submitted prior to or at the time of final plat approval. b. All laws of the United States of America, State of Colorado, County of Eagle, and its respective agencies, affected special districts and/or service districts. C. Such other designs, drawings, maps, specifications, sketches, and other matters submitted by the Subdivider to and approved by any of the above -referenced governmental entities. All said work shall be done under the inspection of and to the satisfaction of the County Engineer ® and/or the County Building Official, respectively, and shall not be deemed complete until approved and accepted as completed by the C Board of County Commissioners of the County or said Board's appointed designee. d. In addition to the foregoing, the Subdivider agrees to retain a registered engineer whose duties shall include the inspection, construction engineering, surveying, and materials testing, as applicable, of the improvements to be installed and completed pursuant to this Agreement in accordance with the plans and specifications approved by the County including, by way of illustration and not limitation, density testing of soils. The engineer retained by the Subdivider shall file with the County written quarterly reports of the results of such engineering services. The Subdivider shall perform and complete the work as described above relating to all of the Filings on or before November 30, 1988. 2. Comoleted Work and Warranty GUaL4nj_qp. The County hereby acknowledges that the work which the Subdivider agreed to perform relating to Filing No. 10, Filing No. 11, Filing 12, Filing No. 15, Filing No. 17, Filing No. 19 and the widening of Highway No. 6 and 24 is complete with the exception of certain improvements noted on Exhibit A to this Agreement. Pursuant to certain terms of the Original Agreement, as amended and restated from time to time, the Subdivider agreed to warrant the work completed in Filing No. 15, Filing No. 17, Filing No. 19, and the widening of Highway No. 6 and 24 for a one-year period following the completion date of the work in such platted filings. The County hereby acknowledges that the Subdivider has fulfilled its obligations under such warranty, and after the date of this Agreement, the Subdivider is released from that warranty. The Subdivider is reducing the collateral for the expiration of the warranty guarantee period with regard to the improvements in Filings No. 15, Filing No. 17, Filing No. 19 and the widening of Highway No. b and 24. At the time the remaining improvements For Filing No. 20, as noted on Exhibit A to this Agreement, are complete, 10% or $44,043.00 (10e of $364,147.00 = $36,414.00; and 10% of $76,295.00 $7,629.00), will be held for one year from the date all improvements in Filing No. 20 are completed. Accordingly, the Subdivider agrees to provide security and collateral in the form of a promissory note and the deed of trust referred to in Section 3 below, which note and deed of trust evidence the Subdivider"s obligation to the County. 3. gogt-collateral., The total estimated cost of the work and improvements remaining is evidenced by the final estimate of probable construction costs contained within Exhibit A. To secure and guarantee performance of its obligations as set forth herein, the Subdivider agrees to provide security and collateral in the form of a fifth amended promissory note in the amount of Seven Hundred Sixty -Two Thousand Eight Hundred Forty-five and no/100 Dollars ($762,845.00) (the "Promissory Note"), secured by a fifth amended deed of trust (the "Deed of Trust") evidencing a first lien on certain real property in the Subdivision, more fully described on Exhibit 8 to this Agreement. 4. Substitution of Collateral. Under the Fourth Amended Agreement, the County and the Subdivider agreed to replace collateral originally deposited with the County under the Original Agreement, as amended, with the collateral described in Exhibit 8 to this- Agreement to guarantee the faithful completion of the improvements described in the Original Agreement, as amended, and the performance by the Subdivider under the terms of the Original Agreement, as amended. The Subdivider represents that the Subdivider intends to plat such property described in Exhibit 8 as part of future filing Arrowhead at Vail Filing No. 16, with a development capacity of fourteen lots for single family or duplex dwellings, and 100 multi -family dwelling units, but the Subdivider also reserves the right, with the County's approval to modify such development plans. The Subdivider agrees to proceed with due diligence in platting the property described on Exhibit B. 5. Future Substitution of Collateral,.. The County .agrees that to the extent any district sells its bonds or bond anticipation notes to provide funds for any of the improvements described in Exhibit A and covenants with the County and Subdivider to install any of the improvements, the note and collateral of the Subdivider shall be released by the County to the extent the improvements are actually completed pursuant to this Agreement. 6. Indemnity. Neither the County nor any officer or employee of the County shall be liable or responsible for any accident, loss, or damage happening or occurring to the work specified in this Agreement prior to the completion and acceptance of the same, nor shall the County, nor any officer or employee thereof, be liable for any persons or properties injured by reason of the nature of said work, and all of said liabilities shall be and are hereby assumed by the Subdivider. The Subdivider hereby agrees to indemnify and hold harmless the County, and any of its officers, agents, and employees against any losses, claims, damages, or liabilities to which the County or any of its officers, agents, or employees may become subject, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) are based upon any performance of the Subdivider under this Agreement; and the Subdivider shall reimburse the County for any and all legal or other expenses reasonably incurred by the County in connection with investigating or defending any such loss, claim, damage, liability, or action. This indemnity provision shall be in addition to any other liability which the Subdivider may have. 7. Enforcement. It is mutually agreed, pursuant to the provisions of Colo. Rev. Stat. 30-28-137(3), as amended, that the County or any purchaser of any lot, lots, tract, or tracts of land subject to a plat restriction which is a security portion of this Agreement shall have the authority to bring an action in any district court to compel the enforcement of this agreement on the sale, conveyance, or transfer of any such lot, lots, tract, or tracts of land, or the enforcement of any other provision of that statute. Such authority shall include the right to compel recision of any sale, conveyance, or transfer of any lot, lots, tract, or tracts of land contrary to the provisions of any such restrictions set forth in the plat or in any separate recorded instrument, but any such action shall be commenced prior to the issuance of a building permit by the County where so required. S. Release of Collateral -- A lic i It is further mutually agreed that pursuant to the provisions of Colo. Rev. Stat. 0--28-1:7(2), as amended, as improvements are completed, the Subdivider may apply to the County for a release of part or all of the collateral. Upon inspection and approval, the County shall release said collateral. If the County determines any of the improvements are not constructed in substantial compliance with specifications, it shall furnish the Subdivider a list of specific deficiencies and shall be entitled to withhold collateral sufficient to ensure such substantial compliance. If the County determines that the Subdivider will not construct any or all of the improvements in accordance with all of the specifications, the County may withdraw and employ from the deposit of collateral such funds as may be necessary to construct the improvements in accordance with the specifications. 9. ADproval of Plats. The previous approval of the County in connection with the final plats of Filing No. 10, Filing No. 11, Filing No. 12, Filing No. 1, Filing No. 17, Filing No. 19, and Filing No. 20 is subject to the terms and conditions of this Agreement. 10. Amendment. The parties hereto mutually agree that this Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 11. Assumption. This Agreement shall be enforceable against the Subdivider, provided, however, that in the event the Subdivider sells or transfers all or part of the Subdivision, a shown in the final plat (prior to extensive sales of individually platted tracts), the obligations of the Subdivider under this Agreement as to that portion of the Subdivision may be assumed by the purchaser of the parcel, and Subdivider shall have no further obligations under this Agreement. It is agreed, however, that no such assumption of these obligations shall be effective unless the County gives its prior approval to such assumption, following an investigation of the financial condition of the purchaser. agreed that the Original Agreement, as previously amended by the instruments described in Section B of the Recitals above, is amended and restated in its entirety in this Agreement, and that the obligations evidenced by the Original Agreement, as amended, comprise part of, and are not separate from, the obligations evidenced by this Agreement. COUNTY OF EAGLE, STATE OF ST. COLORADO, By and Through its BOARD OF COUNTY COMMISSIONERS 6 By: Jerk of the Board of County Commissioners A. ��j ���✓M�l3t/: `fa LP'�"� 12. Warnina of Danaerous Cond't' It is further ns. agreed that the Subdivider shall at all times give good and adequate warning to the traveling public of each and every C dangerous condition existing in any of the roads within the Subdivision, and will protect the traveling public from such defective or dangerous conditions. It is understood and agreed that the roads within the Subdivision are private, shall be under the charge of the Subdivider for the purpose of this Agreement, and further that the County shall have no responsibilities or liabilities relative to the roads. 13. Amendment and RestLLatemnt_._. It is understood and agreed that the Original Agreement, as previously amended by the instruments described in Section B of the Recitals above, is amended and restated in its entirety in this Agreement, and that the obligations evidenced by the Original Agreement, as amended, comprise part of, and are not separate from, the obligations evidenced by this Agreement. COUNTY OF EAGLE, STATE OF ST. COLORADO, By and Through its BOARD OF COUNTY COMMISSIONERS 6 By: Jerk of the Board of County Commissioners A. ��j ���✓M�l3t/: `fa LP'�"� Ju ;.o�zccran, Secretary .R4 e ',. C' Ju ie Corcoran, Secretary STATE OF COLORADO } } ss. COUNTY OF EAGLE ) r ARROWHEAD A joint• • o ARROWHEAD n Delaware corporation, and WEDGE REAL ESTATE LTD., a Texas limited partnership By: ARROWHEAD AT VAIL, INC., a Dela corporation By. Willis J. Wright, Jr. President By. WEDGE REAL ESTATE LTD., a Texas limited partnership By: ARROWHEAD AT VAIL, INC. a Delaware corporation, sole enera1 partner By: J' Will s J. Wright, Jr.. President The foregoing instrument was acknowledged before me this _..,LIitl day of 11�4 198,01 by Willis J. Wright, Jr., as President and Julie C rcoran as Secretary of Arrowhead at Vail, Inc., a Delaware corporation and joint venturer in Arrowhead at Vail, and sole general partner of WEDGE Real Estate Ltd., a Texas limited partnership and joint venturer in Arrowhead at Vail. WITNESS my hand and official seal. My commission expires: M Commission Expiresp6MI/89 Na y Public �f ib�'tleb0 Location Roads 10, 11 and 12 $80,OOOA 15 26,910A 17 7,605A 19 8,385A 20 52,995D1 Off-site Imp- rovements Widening 6&24 --- Water Tank --- EXHIBIT A --- --- ReleasedE 563,650 $175,895 $580,150 $6,800 26,910 7,605 8,385 76,295 563,650 $762,845 0 A - Asphalt topping to occur in November, 1988, shoulder work and manhole V-1 adjustments to be completed in November, 1988. q_4 B - Improvements are completed in Filings 10, 11 and 12 with the exception of R the asphalt topping and any shoulder work or manhole adjustments that are required. The topping is to occur in November, 1988. Eagle County retained 10% ($150,717) of the total cost of improvements for one year from November 15, 1984 to November 12, 1985. C - Improvements are completed in Filings No. 15, 17 and 19 with the exception of the asphalt topping and any shoulder work or manhole adjustments that are required. Topping is to occur in November, 1988. Eagle County retained 100 (141,378) of the total cost of improvements for one year from November 12, 1985 to November 12, 1986. Dl - The roads are 66% complete. The $52,995 includes $35,718 to complete the roads and $17,277 for the asphalt topping. The topping and any shoulder work and manhole adjustments will be completed in November, 1988. D2 - The water and the sewer are 95% complete. The sewer and water will be completed in November, 1988. D3 - Eagle County to retain 100 of the total cost of improvements for one year from the date of completion of all improvements in Filing No. 20. E -.Widening of U.S. Highway 6 and 24 is complete. Eagle County retained 100 ($13,350) of the total cost of improvements for one year from November 12, 1985 to November 12, 1986. 10% Retained by Water Sewer Eagle Count 'y Completed completed ReleasedP Completed Completed ReleasedC Completed Completed ReleasedC Completed Completed ReleasedC 16,500D2 6,800D2 --- D3 --- --- ReleasedE 563,650 $175,895 $580,150 $6,800 26,910 7,605 8,385 76,295 563,650 $762,845 0 A - Asphalt topping to occur in November, 1988, shoulder work and manhole V-1 adjustments to be completed in November, 1988. q_4 B - Improvements are completed in Filings 10, 11 and 12 with the exception of R the asphalt topping and any shoulder work or manhole adjustments that are required. The topping is to occur in November, 1988. Eagle County retained 10% ($150,717) of the total cost of improvements for one year from November 15, 1984 to November 12, 1985. C - Improvements are completed in Filings No. 15, 17 and 19 with the exception of the asphalt topping and any shoulder work or manhole adjustments that are required. Topping is to occur in November, 1988. Eagle County retained 100 (141,378) of the total cost of improvements for one year from November 12, 1985 to November 12, 1986. Dl - The roads are 66% complete. The $52,995 includes $35,718 to complete the roads and $17,277 for the asphalt topping. The topping and any shoulder work and manhole adjustments will be completed in November, 1988. D2 - The water and the sewer are 95% complete. The sewer and water will be completed in November, 1988. D3 - Eagle County to retain 100 of the total cost of improvements for one year from the date of completion of all improvements in Filing No. 20. E -.Widening of U.S. Highway 6 and 24 is complete. Eagle County retained 100 ($13,350) of the total cost of improvements for one year from November 12, 1985 to November 12, 1986. Vq C C • U] Those portions of the NE 1/4 NW 1/4 and the NW 1/4 NE 1/4, Section 9, Township 5 South, Range 82 West of the Sixth Principal Meridian, Eagle County, Colorado, lying south of U.S. Highway 6 and 24 and west of Arrowhead at Vail Filing No. 15, according to the map thereof recorded in Book 393 at Page 94 in the office of the Eagle County, Colorado, Clerk and Recorder, being described as follows: Beginning at a point on the south line of said NW 1/4 NE 1/4, which is also the most westerly corner of Lot 37 of said Arrowhead at Vail Filing No. 15; thence along said south line S 89°19104"W 1035.06 feet to the southeast corner of said NE 1/4 NW 1/4; thence the following three courses along the south, west, and north lines of said NE 1/4 NW 1/4: (1) S 89°19118"W 1348.00 feet to the southwest corner of said NE 1/4 NW 1/4; (2)N 00012126"E 1400.27 feet to the northwest corner of said NE 1/4 NW 1/4; (3) S 89°41'53"E 166.98 feet to the southerly right-of-way Of U.S. Highway 6 and 24; thence the following four courses along said right-of-way: (1) 75.41 feet along the arc of a curve to the left having a radius of 2915.00 feet, a central angle of 01°28156",and a chord which bears S 81°16132"E 75.40 feet; (2) S 82*01'00'!E 1416.40 feet; (3) 407.10 feet along the arc of a curve to the left havi nrr A r-ar3 i „, „F inc., 11°54100"E and a chord which be N 86°05'00"E 52.03 feet to Arrowhead at Vail Filing No..15; along said boundary: (1) S 03° feet along the arc of a curve 437.47 feet, a central angle bears S 04006134"W 122.16 feet; 678.60 feet along the arc of a c of 530.00 feet, a central angl bears S 24032141" E 633.19 feet; (6) S 36°59105" E 229.25 fee containing 63.56 acres, more or - --AI L.Q.L. CL _L city le OL irs S 87°58'00"E 406.35 feet; (4) :he westerly boundary of said thence the following six courses 55100"E 107.12 feet; (2)122.56 to the right having a radius of if 16°03108", and a chord which (3) S 77°51152"E 10.00 feet; (4). zrve to the left having a radius s of 73°21139", and a chord which (5) S 39°37140" W 209.30 feet; to the point of beginning, Less