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HomeMy WebLinkAboutC88-091 Tenth Amended SIA for Arrowhead at Vail(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 5571 (vi) that certain Sixth Amended Subdivision Improvements Agreement (the "Sixth Amended Agreement ") dv:ad February 8, 1985, and recorded March 1. 1985, in•Book 407 at Page 502; (vii) that certain Seventh Amended Subdivision Improvements Agreement (the "Seventh Amended Agreement ") dated May 14, 1985, and recorded May 15, 1985, in Book 414 at Page 2621 (viii) that certain Eighth Amended Subdivision Improvements Agreement (tho "Eighth Amended Agreement ") dated November 12, 1985, and recorded November 12, 1985, in Book 429 at Fags 5971 -1- • . ''i g +� ;� t ►' �'i! ;.!'� C88 -91 -28 % r • .::w TENTH AMENDED SUBDIVISION IMPROVEMENTS AGREEMENT 4? - THIS AGREEMENT is made and entered into this tat day of June, 1988 by and between ARROWHEAD AT VAIL, a Joint 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." ° RECIZAT S A. In accordance with Colo. Rev. Stet. 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 18, 1983, and recorded January 3,.,1984, in Book 375 at Page -881, 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 County of Eagle, 'i State of Colorado. B. The Original Agreement was further amended and restated by { the following: .;.r that certain First Amended Subdivision Improvements Agreement (the "First Amended Agreement ") dated April 25, 1984, in Book '= > 383 at Page 988; that certain Second Amended Subdivision •i° Improvements Agreement (the "Second Amended Agreement ") dated July 25, i' 1984, and recorded August 22, 1984, in Book 393 at Page 971 , (iii) that certain Third Amended Subdivision Improvements y Agreement (the "Third Amended Agreement ") dated August 22, 1984, and r- recorded August 22, 1984, in Book 393 at Page 1031 r: (iv) that certain Fourth. Amended Subdivision =' Improvements Agreement (tha- "Fourth Amended Agreement ") dated November 14, f 1984, and recorded November 15, 1984, in Book 399 at Page 7911 (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 5571 (vi) that certain Sixth Amended Subdivision Improvements Agreement (the "Sixth Amended Agreement ") dv:ad February 8, 1985, and recorded March 1. 1985, in•Book 407 at Page 502; (vii) that certain Seventh Amended Subdivision Improvements Agreement (the "Seventh Amended Agreement ") dated May 14, 1985, and recorded May 15, 1985, in Book 414 at Page 2621 (viii) that certain Eighth Amended Subdivision Improvements Agreement (tho "Eighth Amended Agreement ") dated November 12, 1985, and recorded November 12, 1985, in Book 429 at Fags 5971 -1- m via, � • -- ° 3 '4 a Ox) that certain Ninth Amended Subdivision Improvements `.`3g'• Agreement (the "Ninth Amended Agreement ") dated November 12, 1986, and recorded January 19, 1987 in Book 456 at Page 1071 . all in the real property records of Eagle County, Colorado. The Ninth Amended Agreement pertained to those portions of the Subdivision platted _ as Arrowhead at Vail Filing No. 10, ( "Filing No. 10 "), Arrowhead at Vail °ss 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 u. Vail Filing No. 17 ( "Filing No. 17 "), Arrowhead at Vail Filing No. 19• - - ?'i ( "Filing No. 19 "), and Arrowhead at Vail Filing No. 20 ( "Filing No. 20 "). ;Y (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 wnumerated above, wishes to further amend and restate the Ninth Amended Agreement, also in accordance with Colo. Rev. Stat. 30 -28 -137, to restate the Subdivider's obligations under the Ninth 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. D. Pursuant to the statutory authority referred to -above. the f? 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. i •,. E. The Subdivider wishes to provide collateral to guarantee performance of this Agreement, including construction of the 'aa above- referenced improvements, by means of a promissory note and a deed of ;.; trust. COVENANTS -. J1Y• r rr. In consideration of the following mutual covenants and agreements, the Subdivider and the County agree to amend and restate the Ninth 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 = ^3: and complete, in a good and workman.ike 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 Y 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 spacial districts and /or service districts. -2- c. Such other designs, dravingx, maps, specifications, sketches, and other matters submitted by the Subdivider to and approved by any of the above- referencod govarnmuntal entities. All said work shall be done under the inspection of and to the satisfaction of the County s <` Engineer and /or the County Building Official, respectively, and shall not be deemed complete until approved and accepted an completed by the Hoard of County Commissiondrs of the County or said Board's appointed deoignee. 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 illu3tration 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. 2. Completed Work and Warranty Guarantee. The County hereby acknowledges that the work which the Subdivider agreed to perform relating to Filing No. 10, Filing No. 11, Filing No. 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 in this Agreement in Section 9 below, the Subdivider has agreed to warrant the work completed on the installation of the water tank, in Filing No. 20 and Filing No. 13 for a one -year period following completion. Accordingly, the Subdivider agrees to provide security and collateral in the form of the 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. including a sum equal to 1OZ of the cost of th.a work and improvements completed on the water tank, 1Ox of $563,650.QU ($56,365.00) which will be held for nne year from the date of this agreement. At the time the remaining improvements for Filing No. 20, as noted on Exhibit A to this Agreement, are complete. 1Ox of $76,295.00 C($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 the promissory note and the dead of trust referred to in Section 3 below, which note and dead of trust evidence the Subdivider's obligation to the County. -3- . `r! ' y "Q At the time the remaining improvements for Filing No. 13, as noted on Exhibit A to this Agreement. are complete, lOX of $343,000 °r ($34,300) will be held for one year from the data all improvements in Filing No. 13 are completed. Accordingly. the Subdivider agrees to providu security and collateral in the form of the 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. Cost - Collateral. The total catimated cost of the work and improvements remaining is evidenced by the final estimate of probable :yF 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 sixth amended promissory note in the amount of Five Hundred Ninety -Eight Thousand Five ' Hundred Sixty or $598.560 (the "Promissory Note "), secured by a sixth "Deed amended deed of trust (the of Trust ") evidencing a first lien on certain real property in the Subdivision. more fully described on Exhibit B 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 B 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 B as part of future filing Arrowhead at Vail Filing No. 16, with a development capacity of fourteen 13ts for single family or duplex ;1 dwellings. and 100 multifamily 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. S. 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 sad Subdivider to install any of the ar improvements, the note and eoll&taral of the Subdivider shall be released a V� by the County to the extent the improvements are actually completed ._ pursuant to the 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. C`fl M 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 inveaLlssting 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 Colo. Rev. Stat. 30- 28- 137(3). as amended, that the County } "r or any purcnaser 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 . •.,A 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 .' 4 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. 8. RP13ase of Collateral --Application. It is further mutually agreed that pursuant to the provisions of Colo. Rev. Stat. 30- 28- 137(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 the 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. Warranties. Notwithstanding any provision to the contrary, there shall be a one -year correction period from the time of completion of the improvements referred to in this Agreement (such time being determined by formal hearing and action by the Board of County Commissioners), during which time the Subdivider shall promptly correct or remove and replace, in accordance with the County's written instructions, defective work or materials and consequences thereof. Repair or replacement made under the one -year correction period shall bear an additional one -year correction period from the acceptance of the repair or replacement by the Eagle County Engineer. The work shall be collateralized during the correction period in an amount and type of collateral as shall be reasonably detarmined by the County. Such work shall be inspected approximately sixty (60) days prior to the expirati)n of the one -year correction period, and any deficiencies shall be noted to the Subdivider. -5- a }.Hii • ;•'Y 10. Approval of Flats. The County agrees to the approval of the final plat of Filing 13, subject to the terms and conditions of the Agreement. The previous approval of the County in connection with the *+ final plats of Filing No. 10, Filing No. 11, Filing No. 12, Filing No. 15, Filing No. 17, Ming No. 19, and Filing No. 20 is subject to the terms and conditions of this Agreement. 11. 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. 12. 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. as 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 Subdividar 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 assumptions following an investigation of the financial conditin of the purchaser. 13. WarninR of Dangerous Conditions. It is further agreed that ,, '. 4W. the Subdivider shall at all times give good and adequate warning to the traveling public of each and every dangerous condition existing in any of d= the roads within the Subdivision. and will protect the traveling public `f =•''`' 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 1 that the County shall have no responsibilities or liabilities relative to the roads. 14. Amendment and Restatement. 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 the obligations evidenced by this Agreement. cti+YWri '¢: "= 'J T: COUNTY COUNTY OF EAGLE, STATE OF lark of the Board of COLORADO. By and Through its Couuty Commissioners BOARD COUNTY COMMPWNERS `# BY t Qfl $r EXHIBIT A 102 Retained by Location Roads Water Sower Eagle County Total 10,11 & 12 $80,000(A) Completed Completed Released S 80,000, 15 26,910(A) Completed Completed Released 26,910 17 7.605(A) Completed Completed Released 7,605 19 8,385(A) Completed Completed Released 8,385 20 52,995(B) 16,500(C) 6,800(C) ... (D) 76,295 13 145,000 128,000 70,000 (R) 343,000 Off-sits, Improvements Hsu Widening 6&24 --- ..• ... Released Water Tank ... .•• 56,365 (F) 56,365 -tv 120,895 144,500 76,800 56,365 $98,560 A Asphalt topping to occur in November, 1991, shoulder work and manhole adjustments to be completed in November. 1991. B The roads are 80% complete. $52,995 includes $35.718 to complete x the roads and $17,277 for the asphalt topping. The topping and any C-4 shoulder work and manhole adjustments will be completed in November, elf 1991. C The water and the newer are 95% complete. The newer and water will be completed in November, 1991. D Eagle County to retain 10% of the total cost of improvements for one i. year from the date of completion of all improvements in Filing No. 20. r E Eagle County to retain 10% of the total cost of improvements for one year from the date of completion of all improvwftints in Filing 13. Roads, water and sewer installation shall be completed in Filing 13 by November, 1990. F improvements are complete on the water tank with the exception o f the - fibal'oalnt job which will be completed in June, 1988. Eagle County to retain 10% of the total cost of the improvements for one year from the date of this agreement. W* v ;i-A