The URL can be used to link to this page

Home My WebLink AboutC84-016 Subdivision Improvements_Arrowhead at Vail_fifth amendmentFIFTH AMENDED �>> SUBDIVISION IMPROVEMENTS AGREEMENT T� 3(l084 o PAGEZ JOHNNETTE PHILLIPS EAGLE CTY. RECORDEF JAN 9 1 30 PM '85 THIS AGREEMENT is made and entered into this 26th day of December, 1984, 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. " 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") regard- ing improvements to be completed in the subdivision in Eagle County, Colorado 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 251 1984, and recorded April 26, 1984, in Book 383 at Page 985, both in the real property records of the County of Eagle, State of Colorado. B. The Original Agreement was further amended and restated by (i) that certain First Amended Subdivision Improvements Agreement (the "First Amended Agreement") between the Subdivider and the County, dated April 25, 1984, and recorded April 26, 1984, in Book 383 at Page 988, (ii) that certain Second Amended Subdivision Improvements Agreement ( the "Second Amended Agreement") between the Subdivider and the County, 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") between the Subdivider and the County, dated August 22, 1984, and recorded August 221 1984, in Book 393 at Page 103, and ( iv) that certain Fourth Amended Subdivision Improvements Agreement (the "Fourth Amended Agreement") between the Subdivider and the County, dated November 14, 1984, and recorded November 15, 1984, in Book 399 at Page 791, all in the real property records of Eagle County, Colorado. The Fourth Amended Agreement pertained to those portions of the Subdivision platted as Arrowhead at Vail Filing No. 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. 14 ( "Filing No. 14") , Arrowhead at Vail Filing No. 15 ("Filing No. 15").. and Arrowhead at Vail Filing No. 17 ("Filing No. 17) . C. The Subdivider, as a condition of approval of Amended Plat Arrowhead at Vail Filing No. 14, County of Eagle, State of Colorado ("Amended Filing No. 14"� wishes to further amend and re- state the Fourth Amended Agreement, also in accordance with Colo. Rev. Stat. S 30-28-137, to restate the obligations incurred by the Subdivider under the Fourth Amended Agreement, and to document certain changes in the obligation to the County incurred by the Subdivider as a result of the platting of Amended Filing No. 14. D. Pursuant to the statutory authority referred to above, the Subdivider is obligated to provide security or collateral suffi- cient 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 guaran- tee performance of this Agreement, including construction of the -2- �*Apo, above -referenced improvements, by means of a promissory note and a deed of trust. In consideration of the following mutual covenants and agreements, the Subdivider and the County agree to amend and restate the Fourth Amended Agreement, as follows: 1. Improvements. The Subdivider hereby agrees, at its sole cost and expense, to furnish all equipment and materials neces- sary to perform and complete, in a good workmanlike manner, all improvements as shown in the f inal 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, specifica- tions, 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 com- plete until approved and accepted as completed by the Board of -3- 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 includ- ing, 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 described above relating to Filing No. 15 and Filing No. 17 on or before November 30, 1985. 2. Complete Wgrk nd Warranty Guarantee. T h e County hereby acknowledges that the work which the Subdivider agreed to per- form relating to Filing No. 10, Filing No. 11, and Filing No. 12 is complete** 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 in Filing No. 10, Filing No. 11, and Filing No. 12 for a one-year period follow- ing 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 10% of the cost of the work and improve- ments completed in Filing No. 10, Filing No. 11, and Filing No. 12, or One Hundred Fifty Thousand Seven Hundred Seventeen and no/100 Dollars $150,717.00 3. Cost -collateral. The total estimated cost of the work and improvements for Filing No. 15 and Filing No. 17 is the sum of **with the exception of the improvements noted on Exhibit A. -4- One Million Ninety -Six Thousand Three Hundred Thirty -Nine and no/100 Dollars ( $1, 096,339.00) , as evidenced by the final estimate of proba- ble 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 col- lateral in the form of a first amended promissory note in the amount of Two Million Twenty -Four Thousand Two Hundred Six and no/100 Dollars ( $2,024, 206.00) (the "Promissory Note") , secured by a first amended deed of trust (the "Deed 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 perfor- mance 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 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 Collor gral. 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 -5- 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 acci- dent, 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. S 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, con- veyance, 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 rescission of any sale, -6- NAWO '14WW 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. 8. Rel easgof collateral - application. It is f u r th e r mutually agreed that pursuant to the provisions of Colo. Rev. Stat. § 3 0-2 8-137 (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 spec - if ications, it shall f urnish the Subdivider a list of specif is defi- ciencies 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 neces- sary to construct the improvements in accordance with the specif ications. 9. Warranties. Notwithstanding any provision to the corn trary, 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 f ormal 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 conse- quences thereof. Repair or replacement made under the one-year cor- rection period shall bear an additional one-year correction period f rom the acceptance of the repair or replacement by the Eagle County Engineer. The work shall be collateralized during the correction -7- u period in an amount and type of collateral as shall be reasonably determined by the County. Such work shall be inspected approximately sixty (60) days prior to the expiration of the one-year correction period, and any deficiencies shall be noted to the Subdivider. 10. Approval of plat. The County agrees to the approval of the f inal plat of Amended Filing No. 14, subject to the terms and conditions of this 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, and Filing No. 17 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 Subdivider shall have no further obliga- tions 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 investiga- tion of the financial condition of the purchaser. 13. Warning Qf danaerous conditions. It is f u r t h e r agreed that 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 the roads within the Subdivision, and will protect the traveling public from such defective or dangerous conditions. It -8- Lr� 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 respon- sibilities or liabilities relative to the roads. 14. Amendment and Restatement. It is understood a n d agreed that the Original Agreement, as previously amended by the First Amended Agreement, the Second Amended Agreement, the Third Amended Agreement, and the Fourth Amended Agreement 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEC lee 404 Py I• °erk; of the Board of ounty Commissioners -9- COUNTY COUNTY OF EAGLE, STATE OF COLORADO By and Through its BOARD OF LINTY COMMISSIONERS By: ' L�e M SUBDIVIDER ARROWHEAD AT VAIL, a Colorado joint venture consisting of MINEFA RESORTS, INC.. a Delaware corporation, and WEDGE REAL ESTATE LTD., a Texas limited partnership By: MINEFA RESORTS, INC., a Delaw re corpo atio/n� B Y- Willis . Wright, Jr. President By: WEDGE REAL ESTATE LTD., a Texas limited partnership -10- By: MINEFA RESORTS, INC., a Delaware corporation, Sol general partner By: / Willi6IJ. Wright, Jr. President STATE OF COLORADO SS. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this 1� day of December, 1984, by Willis J. Wright, Jr., as President of Minefa Resorts, Inc., a Delaware corporation and joint venturer in Arrowhead at Vail, a Colorado joint venture. WITNESS my hand and official seal. My commission expires /j C Nofiry Public 32 Address J. -11- STATE OF COLORADO SS. COUNTY OF EAGLE The foregoing instrument was acknowledged before me this z� day of December, 1984, by Willis J. Wright, Jr. as President of Minefa Resorts, Inc., a Delaware corporation and sole general partner of WEDGE Real Estate Ltd., a Texas limited partnership and joint venturer in Arrowhead at Vail, a Colorado joint venture. WITNESS my hand and official seal. My commission expires a9 190 ! _ A &1W, No41y Public 4% 32 'fib i P� (lw"'4-ul_-fi'o Fl(',SO t...........d:.. —�- Address [ENE J. BELMONT -12- En \%Mw STATE OF COLORADO ) SS. COUNTY OF EAGLE ) th The f re oing instrument as sknowl dged before me this day o 19 BAD, by ,/�x�� "• i"- as Chairman and as Clerk of the Board of County Commissioners of Ea 1 e County, Color ado . WITNESS my hand and official seal. My commission expires Notary Public _v. &x g� 'c-'C' I-e olurc'dc) F-1 & 71 IJ Address -13- V . v r ivt � i, •�� ,� •._ _.. mot! ; . . a r- EXHIBIT A Retained Roads Water Sewer by County Total 10, 11 and 12 $ 80,000 $ - $ - $ - $ 809000 10% retained by County 150,717E 150,717 Eagle 15 480v520 275,000 175,810 - 931,330 17 88,940 289809 47,260 - 165,009 Offsite C Improvements 1339500 5639650 -- - 697,150 $182,960 $867,459 $223,070 $1509717 $2,024,206 AFinal topping to occur in 1988, shoulder work and manhole adjustments to be completed before 1988. Elmprovements are completed in Filings No. 10, ll,.and 12 with the excep- tion of the asphalt topping to occur in 1988. Eagle County retains 10% of the total cost of improvements for one year from the date of November 15, 1984. CImprovement represents the concrete water tank and wi-.dening of U.S.. Highway 6 and 24. Exhibit B Those portions of the NE1/4 NW1/4 and the NW1/4 NE1/4, 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 NW1A NE1/4, which is also • -the most westerly corner of Lot 37 of said Arrowhead at Vail Filing No. 15; thence along said south line S 89019'04" W 1035.06 feet the the southeast corner of said NE1/4 NW1/4; thence the following three courses along the south, west, and north lines of said NE1/4 NW1/4: ° �� the southwest corner of said NE1/4 NW1/4 (1) S 89 19 18 W 1348.00 feet to northwest corner of said NE1/4 NW1/4; (3) S289N41�°12126" E 1400.27 feet to the: the southerly right-of-way of U.S. Highway 6 and 243 thence 166.9h feet to courses along said right-of-way: � hence the following four g y: (1) 75.41 feet along the arc of a curve to the left having a radius of 2915.00 feet, a central angle of 01028'56" and a chord which bears S 81016'32" E 75.40 feet ' (3) 407.10 feet along the arc of a curve to the 2left8hav0in00a E radius i0 feet; - feet, a central angle of 11°54100" 8 radius of 1960.00 406.35•feet; (4) N 86005'00" E 52.03 feet atohthe which bears S 87°58'00"'E Arrowhead at'Vail FilingNo. westerly boundary of said 15; thence the following six courses -along said boundary: (1) S'03055'00" E 107.12 feet; (2) 122.56 feet along the arc of a curve to the right having a -radius of 437.47.. feet, a central angle of 16° 03'08", and a chord which bears S 04006'34" W 122.16 feet 10.00 feet; (3) S 77°51'S2" E (4) 678.60 feet along the arc of a curve to the left having a radius of 530.00 feet, a central angle of 73021'39", and a chord which bears S 24° 32'41" E 633.19 feet; (5) S 39037'40" W 209.30 feet; • feet to the point of beginning, containing 63.56 acres, more 6or9 less. E 229.25 s. ic j L9 REIORN TO: EAGLE COUNTY ATTORNEY P. 0. BOX 850 .4 EV3't-r-, COMADO 81631