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HomeMy WebLinkAboutC96-053 Horse Mountain Ranch LLCC '96 ,; 9 5 p
AGREEMENT
by and between
THE COUNTY OF EAGLE
and
HORSE MOUNTAIN RANCH, L.L.C.
'PHIS AGREEMENT is "Agreement") is entered into as of this
day of , 1996, by and between the County of
Eagle, State of Colorado (the "County"), by and through its Board
of Commissioners, and Horse Mountain Ranch, L.L.C., a Colorado
limited liability company (the "Proponents").
RECITALS
WHEREAS, pursuant to the provisions of the Special District
Act, located in part 2, Article 1 of Title 32, Colorado Revised
Statutes, on March 14, 1995 the Board of County Commissions of
Eagle County, Colorado (the "Board of Commissioners"), held a
public hearing on the Service Plan for the proposed Horse Mountain
Ranch Metropolitan District (the "District"), which hearing was
continued on various occasions and held to completion on August 29,
1995, and then continued for decision only to September 5, 1995;
and
WHEREAS, at a public meeting of the Board of Commissioners
held September 5, 1995, the Board of Commissioners approved the
Service Plan of the District based upon certain commitments made by
the Proponents of the District as described in the County's
Resolution No. 95-113 (the "Resolution"); and
WHEREAS, the Proponents of the District and the County now
desire to herein provide for the completion of such commitments in
order to enable the Proponents to complete the process of the
organization of the District.
NOW, THEREFORE, in consideration of the covenants and mutual
agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
COVENANTS AND AGREEMENTS
1. Roadway Completion Estimate and Letter of Credit.
Proponents have submitted, and the Eagle County Engineer's office
has accepted and approved, Proponents' estimate for the costs of
the completion of the remainder of the roads to be maintained by
the District (referred to herein as the "District -Maintained
Roads") in the amount of $62,650 (the "Roadway Completion Cost
Estimate"). To secure the completion of the District -Maintained
Roads, Proponents shall post with the County a declining balance
letter of credit in accordance with paragraph 4, below.
The County shall be entitled to retain as collateral for the
completion of the District -Maintained Roads the amount of ten
percent (10%) of the Roadway Completion Cost Estimate for a period
of two years from the date of completion of the District -Maintained
Roads, in accordance with the provisions of paragraph 5 below
("Roadway Warranty Period"). During such Roadway Warranty Period,
the Proponents shall be responsible for the prompt correction,
removal or replacement of defective work or materials and
consequences thereof, in accordance with the County's written
instructions.
2. BLM Roadway Completion Estimate and Letter of Credit.
Proponents have submitted (a) Proponents' estimate of the costs for
the completion of the portion of the road to be maintained by the
District which is owned by the U.S. Bureau of Land Management
(referred to herein as the "District -Maintained BLM Road") in the
amount of $184,465.50 (the "BLM Roadway Completion Cost Estimate")
and has stockpiled $28,500 of gravel for construction of the BLM
Roadway; and (b) a proposed alternative routes analysis and
estimate for review by the BLM. Proponents shall continue to work
with the County and BLM to determine the most appropriate route for
the BLM Roadway.
To secure the completion of the District -Maintained BLM Road,
Proponents shall post with the County a declining letter of credit
in accordance with paragraph 4, below. Proponents agree that if
the estimated completion cost for the District -Maintained BLM Road
alignment ultimately approved by the County and BLM exceeds these
amounts, Proponents shall, within fifteen (15) working days of
receipt of written notice from the County, increase the amount of
the Letter of Credit described in paragraph 4 by the amount of the
increase in the BLM Roadway Completion Cost Estimate.
The County shall be entitled to retain as collateral for the
completion of the District -Maintained BLM Road the amount of ten
percent (10%) of the BLM Roadway Completion Cost Estimate for
period of two years from the date of completion of the District -
Maintained BLM Roads, in accordance with the provisions of
paragraph 5 below ("BLM Roadway Warranty Period"). During such BLM
Roadway Warranty Period, the Proponents shall be responsible for
the prompt correction, removal or replacement of defective work or
materials and consequences thereof, in accordance with the County's
written instructions.
3. Appraisal for Costs of Acquisition of Rights of Way and
Letter of Credit. Proponents have submitted, and the County has
accepted and approved, Proponents' certified appraisal, submitted
under cover of letter dated January 11, 1996, for the costs of the
acquisition of the rights-of-way to be acquired in the event that
condemnation shall become a necessity for the District, in the
amount of $21,575 (the "ROW Acquisition Cost"). To secure the
condemnation for right-of-way acquisition if it becomes necessary,
2
Proponents shall post with the County a declining balance letter of
credit in such amount in accordance with paragraph 4, below.
Proponents shall absorb the attorney's fees of the District in the
event condemnation becomes necessary.
When and if the District is organized, as evidenced by a copy
of a Decree of Organization signed by the Eagle County District
Court, the County shall give the Letter of Credit (as such term is
defined in paragraph 4) to the District on condition that the
District agrees that the Letter of Credit for ROW Acquisition Costs
shall be used only for condemnation proceedings if they become
necessary and will not be released by the District until all
lawsuits are completed and condemnation is no longer necessary.
4. Letter of Credit. Upon execution of this Agreement,
Proponents shall post with the County a declining balance letter of
credit in substantially the form shown on Exhibit A (the "Letter of
Credit"), in the amount of $268,690.50 (subject to increase in
accordance with paragraph 2 hereof) which represents the cumuiaLive
amount of the Roadway Completion Cost Estimate, the BLM Roadway
Completion Cost Estimate, and the ROW Acquisition Cost. Proponents
may, from time to time, provide a substitute Letter of Credit (or
letters of credit) in similar form as Exhibit A in order to reflect
the declining balance of the amounts contemplated in paragraphs 1,
2 and 3 which remain to be expended by Proponents to complete the
work contemplated therein. At such time as the Letter of Credit
for ROW Acquisition Costs is to be given to the District in
accordance with paragraph 3 hereof, a substitute Letter of Credit
in such amount shall be provided to the District in exchange for
the Letter of Credit held by the County for such amount. The
amount to be reduced from the initial Letter of Credit to reflect
the declining balance of work to be completed shall be consistent
with the amount of work inspected and approved by the County in
accordance with the following paragraph.
5. County Inspections and Approvals. Upon completion of the
District -Maintained Roads and the District -Maintained BLM Road
(collectively, the "Roads") or meaningful portions thereof, the
Proponents shall notify the County in writing and request an
inspection of the Roads by the County. The Roadway Warranty Period
and the BLM Roadway Warranty Period (collectively, the "Warranty
Periods") shall commence upon County approval of the completion of
the Roads, or portions thereof. During such Warranty Periods, the
County shall notify the Proponents as to whether any of the Roads,
or portions thereof, requires correction, removal or replacement of
defective work or materials. Such determination shall be made by
the County in its reasonable discretion. Following the Warranty
Periods, the collateral withheld by the County pursuant to
paragraphs 1 and 2 above shall be released upon the inspection and
approval of the Roads by the County Engineer. Such County
approvals discussed herein shall not be unreasonably withheld.
3
6. Assignment. Neither party to this Agreement shall assign
this Agreement or any parts thereof.
7. Notices. Any notices or other communications required or
permitted by this Assignment or by law to be served on, given to,
or delivered to either party hereto, by either party shall be in
writing and shall be deemed duly served, given, or delivered when
personally delivered to the party to whom it is addressed, or in
lieu of such personal services, when deposited in the United
States' mail, first-class postage prepaid, addressed as follows:
TO THE COUNTY:
Eagle County Attorney's Office
Eagle County Building
500 Broadway
Eagle, Colorado 81631
Attn: James R. Fritze, Esq.
TO THE PROPONENTS:
w/ a copy to:
Veldman Morgan Commercial
760 Whalers Way, Bldg. C, Suite 200
Fort Collins, Colorado 80525
Attn: Mitchell M. Morgan
Ankele, Icenogle, Norton, White & Seter, P.C.
5690 DTC Boulevard, Suite 300
Greenwood Village, Colorado 80111
Attn: Gary R. White, Esq.
Either party may change its address for the purpose of this
paragraph by giving written notice of such change to the other
parties in the manner provided in this paragraph.
8. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto relating to the rights,
duties, and obligations of each party as of this date. Any prior
agreements, promises, negotiations, or representations not
expressly set forth in this Agreement are of no force and effect.
9. Amendment. This Agreement, including the form of Letter
of Credit shown in Exhibit A, shall be amended only by a writing
mutually agreed upon and executed by all parties.
10. Binding Agreement. This Agreement shall inure to and be
binding on the heirs, executors, administrator, successors, and
assigns of the parties hereto.
4
11. Controlling Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
COUNTY:
Ai�--r� G 4'o)
By:
Its:
ATTEST:
BMRHD\AGRT\88122116.016
0307.0002
5
PROPONENTS:
Horse Mountain Ranch, L.L.C.
By: dary D. Graves
Its: Manager
P.O. Box 271490
3600 South College Avenue
Ft. Collins, CO 80527
Phone: (303) 226-4545
IRREVOCABLE STANDBY LETTER OF CREDIT
OUR LETTER OF CREDIT NUMBER: 153
DATE OF ISSUANCE: March 11, 1996
BENEFICIARY: Board of County Commissioners
County of Eagle
State of Colorado
P.O. Box 850
Eagle, Colorado 81631
RE: Horse Mountain Ranch, LLC, for the purpose of guaranteeing construction of public improvements
required by the County of Eagle, State of Colorado, pursuant to that certain Agreement dated
1996, between the County of Eagle, Colorado, and Horse Mountain Ranch, LLC.
City of Fort Collins,
State of Colorado
Gentlemen:
At the request of Horse Mountain Ranch, LLC, we hereby issue our Irrevocable Standby Letter of Credit
Number 153, which is available by draft(s) at sight drawn on 1 ST CHOICE BANK, Fort Collins, Colorado.
This credit is for an aggregate amount not to exceed U.S. Two Hundred Sixty -Eight Thousand Six Hundred
Ninety Dollars and Fifty Cents (US$268,690.50), and we engage with you that all drafts at sight drawn under
and in compliance with the terms of this credit will be fully honored by us if presented at this office on or before
3:00 PM, Mountain Standard Time, March 11, 1997.
Any draft(s) drawn by you under this Letter of Credit must be endorsed on the reverse side of this Letter of
Credit and bear upon its face "Drawn under Irrevocable Standby Letter of Credit Number 153, dated March 11,
1996, of the 1 ST CHOICE BANK, Fort Collins, Colorado".
Any draft(s) shall be accompanied by a Resolution of the Board of County Commissioners of Eagle County
certifying 1) that there has been a default under the above -referenced Agreement and 2) that a sum certain is
required to remedy the default.
1 ST CHOICE BANK agrees with the drawers, endorsers and bonafide holders of drafts drawn and negotiated in
compliance with the terms of this Letter of Credit that such drafts will be duly honored upon due presentation,
as specified herein.
1 ST CHOICE BANK represents and warrants to the County of Eagle that it has the full authority and power to
issue this Letter of Credit to the County of Eagle, State of Colorado, in the total amount and for the period of
time stated herein; said authority being pursuant to the laws of the United States or the State or territory which
governs the establishment and regulations of 1 ST CHOICE BANK's charter, by-laws and other applicable rules
and regulations adopted pursuant thereto. Should it be necessary for the County of Eagle to file suit in an effort
to enforce this Irrevocable Standby Letter of Credit, 1 ST CHOICE BANK hereby waives all venue rights and
submits to the jurisdiction of the District Court in and for the County of Eagle, State of Colorado.
This credit is issued subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500.
1 ST CHOICE BANK
7,
BY:
L_—
J
n C. Drennen, President
Attest:
John 0. Cittadino, Senior Vice President
Robert Hinderaker, Secretary