HomeMy WebLinkAboutC84-015 Subdivision Improvements_Micah, Ltd._Brush Creek Stables00448
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JOHNNETTEPHILLIPS
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SUBDIVISION IMPROVEMENTS AGREEMENT
THIS AGREEMENT, made and entered into this 25th day of
April, 1984, by and between Micah, Ltd., a Colorado General
Partnership, hereinafter referred to as the "Subdivider", and the
Board of County Commissioners of Eagle County, Colorado, hereinafter
referred to as the "County".
WITNESSETH:
WHEREAS, the Subdivider as a condition of approval of the
final plat of Brush Creek Stables, wishes to enter into a Subdivision
Improvements Agreement as provided for by section 30-28-137, C.R.S.
1973; and
WHEREAS, pursuant to the same authority, the Subdivider is
obligated to provide security or collateral sufficient in the judgment
of the Board of County Commissioners to make reasonable provisions for
completion of certain public improvements set forth in Exhibit A
attached hereto and incorporated herein by this reference; and
WHEREAS, pursuant to section 2.20 of the Eagle County Land
Use Regulations, 1982, as amended, when a proposed subdivision is
located in an area serviced by an existing County road and the County
determines that the traffic generated by such subdivision will result
in safety hazards for vehicle drivers, pedestrians and/or adjacent
residents, or will result in substantially increased maintenance
costs to the County, the County is empowered to determine the amount
of work necessary to bring the affected County road to acceptable
standards to provide adequate safe service to present owners, to the
proposed subdivision and to other probable subdivisions, and to
require the Subdivider to develop and agree to a cost sharing program
with the County to bring such road up to an acceptably safe
condition; and
WHEREAS, the County has determined that the traffic which will
be generated by the Brush Creek Stables Subdivision, along with other
potential subdivisions in the area, will result in safety hazards and
substantially increased maintenance costs relative to the Brush Creek
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Road; and
WHEREAS, the County and Subdivider have agreed upon a cost
sharing program to upgrade said road as set forth in Exhibit B
attached hereto and incorporated herein by this reference, and have
agreed that the Subdivider's proportionate share in bringing the Brush
Creek Road up to an acceptably safe condition and to accommodate the
incremental increase in traffic burden to said road resulting from
the development of Brush Creek Stables Subdivision, is the payment of
those sums to the County in lieu of the engineering, construction and
completion of physical improvements to said road, said payments to be
made as stated in Exhibit B.
WHEREAS, as a further condition of approval of the final plat
of Brush Creek Stables, the Subdivider is obligated to provide
security sufficient in the judgment of the Board of County
Commissioners to make reasonable provisions for completion of those
certain off -site road improvements referred to herein or the payment
of the sums provided for herein; and
WHEREAS, the Subdivider as a further condition of approval
of the final plat of Brush Creek Stables is obligated to provide
adequate water for the Subdivision and is the beneficiary of a
certain water agreement entered into on the 26th day of July,
1983, between the town of Eagle, and the Colorado River and Eagle
Company, which agreement provides for adequate water to serve the
Brush Creek Stable subdivision.
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements herein contained to be kept and performed by
the parties hereto, it is hereby understood and agreed as follows:
1. The Subdivider hereby agrees, at its sole cost and expense
to furnisn ail equipment and material necessary to perform and
complete, within five years of the date of recording the final plat of
Brush Creek Stables, all public improvements as set forth in Exhibit
A, in accordance with all final plat documents, drawings, designs,
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maps, specifications, sketches, and other materials submitted by the
Subdivider at final plat approval and accepted by the County, and in
accordance with all laws of the United States of America, State of
Coiorado, County of Eagle and its respective agencies, and affected
governmental entities. All said work with the exception of the water
system, shall be done under the inspection of, and to the reasonable
satisfaction of the County Engineer and/or the County Department of
Community Development, respectively, and shall not be deemed complete
until approves and accepted as completed by the Board of County
Commissioners of the County or said Board's appointed designee.
Subdividers shall retain an engineer whose duties shall include the
inspection, construction engineering, surveying and materials testing,
as applicable, of the public 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.
2. The Subdivider hereby agrees to pay to the County, in lieu
of the Subdivider's obligation to make physical improvements to Brush
Creek Road as a result of the impact of the subdivision on Brush Creek
Road, a sum equal to fifty percent of the cost of improving the
existing Brush Creek Road, said improvements to Brush Creek Road being
more fully defined in the attached Exhibit B, consisting generally of
widening the existing road to a pavement width of twenty-two feet
with additional four -foot shoulders, together with skim -patching and a
two-inch asphalt overlay, said improvements to be along that portion
of Brush Creek Road traversing from the most southeasterly entrance of
the proposed "The Terrace" Subdivision to the southeasterly entrance
of the "Brush Creek Stables" Subdivision. The total estimated cost
for the described improvements to Brush Creek Road are in the amount
of $327,500.00, with the Subdivider's share being $163,750.00. Any
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substantial change in the scope of the off -site road improvements as
described herein shall be subject to reasonable approval of the
Subdivider; should the scope of the off -site road improvements
constructed by the County change such that the total cost increases,
or, should the County fail to obtain the approval of the Subdivider,
the Subdivider's obligation for payment for off -site road improvements
shall be the lesser of either the sum of $163,750.00 or 50% of the
acutal cost of construction of said off -site road improvements.
3. The estimated cost of the Subdivider's portion of said
work and improvements, on -site and off -site, is the sum of
$1,834,750.00.
To secure and guarantee performance of its obligations as set
forth herein, which shall include completion of those certain public
improvements as set forth in Exhibit A. and payment of those sums in
lieu of off -site road improvements as set forth in Exhibit B, the
Subdivider hereby agrees to provide security and collateral by means
of two promissory notes in the amounts of $1,671,000.00 and
$163,750.00, respectively, secured by first Deeds of Trust on Lots 91
through 118 and 119 through 122, respectively, of the Brush Creek
Stables Subdivision, located in the County of Eagle, Colorado.
4. It is agreed that the payment of those sums for off -site
road improvements as are provided for under this Agreement,
particularly by paragraphs 2 and 3 above and described in the attached
Exhibit B. shall be as follows:
a. Within ninety days after recording of the final plat
of Brush Creek Stables, the Subdivider may pay to the County its
portion of the estimated cost as defined herein, said portion being
the sum of $163,750.00. Said payment shall be made by the Subdivider
to the County in the form of cash or certified funds.
b. Should the Subdivider not elect the payment option
described in subparagraph a. above, the Subdivider's payment
obligation shall be 50% of the actual costs incurred by the County
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in constructing said road improvements. Payment by the Subdivider
shall be made to the County in amounts equal to fifty percent of the
County's payments to the contractor constructing the road
improvements, said payments to be made by the Subdivider
contemporaneously with the,County's payments to the contractor.
It is further expressly understood and agreed by the parties that the
County shall give the Subdivider written notice of not less than
thirty (30) days of the County's bid price to construct the
improvements to Brush Creek Road. During this thirty (30) day
period, the Subdivider may avoid incurring or triggering the
payment obligation for construction of the off -site road improvements
by giving written notice to the County of the Subdivider's election
to vacate the Subdivision plat of Brush Creek Stables and, in so
doing, avoid any impact on the County's roads by such Subdivision.
Should the Subdivider give no notice to the County of its election
to vacate the Subdivision, it shall conclusively be deemed the
Subdivider has elected to proceed with the Subdivision and further
the obligation of the Subdivider for payment of its share of the
off -site road improvements as described herein shall be irrevocable
without the express consent of the County. To facilitate payments to
the contractor, the Subdivider agrees to place an amount equal to
fifty percent of the bid price for construction of the off -site road
improvements into an interest -bearing account, with interest to accrue
to the benefit of the Subdivider, with the Subdivider's payment
obligations as described in this paragraph to be drawn from said
account.
c. Should a period of 5 years elapse from the
date of recording of the final plat without the construction of the
improvements to Brush Creek Road being commenced by the County, the
parties agree that the Subdivider shall have no payment obligation
for construction of improvements and further, any sums paid to the
County by the Subdivider for the improvements to Brush Creek Road
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as described herein shall be returned by the County to the
Subdivider, together with interest accruing at the rate of 10%
per annum.
5. The parties understand and agree that the collateral being
f urnisned by the Subdivider to secure its performance of construction
of the off -site road improvements to Brush Creek Road shall be
evidenced by the Subdivider's promissory notes payable to the County
secured by deeds of trust as described above in paragraph 3. It is
further agreed that the promissory notes described herein, secured
by the deeds of trust, shall be "non -recourse" notes providing that
in the event of default by the Subdivider, the County's sole remedy
shall be foreclosure of the deed of trust on the lots described, with
no inaividuai or personal liability by the partner or partners of the
Subdivider.
6. The Subdivider may at any time substitute the collateral
originally deposited with the County herein, for another form of
collateral reasonably acceptable to the County to guarantee the
faithful completion of those public improvements and off site road
improvements referred to herein and the performance of the terms of
this Agreement.
7. County shall not, nor shall any officer or employee
thereof, be liable or responsible for any accident, loss or damage
happening or occurring to the on -site improvements 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 property injured by reason of the nature of said work
on the on -site improvements, but all of said liabilities shall 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
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subject to, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) that arise out of or are
based upon any performance by the Subdivider hereunder; and the
Subdivider shall reimburse County for any and all legal or other
expenses reasonably incurred by 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.
8. It is mutually agreed, pursuant to the provisions of
section 30-28-137(3), C.R.S. 1973, that the County or any purchaser
of any lot, lots, tract or tracts of land subject to a plat
restriction which is the security portion of a subdivision
improvements agreement shall have the authority to bring an action in
any District Court to compel the enforcement of any subdivision
improvements agreement on the sale, conveyance or transfer of any
lot, lots, tract or tracts of land or of any other provision of this
article. Such authority shall include the right to compel rescission
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.
9. It is further mutually agreed that pursuant to the
provisions of section 30-28-137 (2) , C.R.S. 1973, that as improvements
are completed, the Subdivider may apply to the Board of County
Conanissioners for a release of part or all of the collateral
deposited with said Board. Upon inspection and approval, the Board
shall release said collateral. If the Board determines that any of
such 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 reasonably insure such substantial compliance. If the Board of
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County Commissioners reasonably determines that construction of the
improvements is not in accordance with all of the specifications,
after giving written notice to cure of not less than 60 days to the
Subdivider, the Board of County Commissioners may withdraw and employ
from the deposit of collateral such funds as may be necessary to
construct the improvements in accordance with the specifications.
10. There shall be a two-year correction period, or such
shorter or longer period as may be prescribed by law, from the time
of completion of the Subdivision (such time being determined by formal
hearing and action by the Board of County Commissioners) or by statute
or ordinance, during which time the developer shall promptly correct
or remove and replace, in accordance with the County's written
instructions, detective work or materials and consequences thereof.
Repair or replacement made under the two-year correction
shall bear an additional two-year (or such shorter or longer period as
may be prescribed by law) correction period from the acceptance of the
repair or replacement by the Eagle County engineer. The work shall be
collateralized during the correction period. The amount and type of
collateral shall be determined by the County Commissioners. Generally
an amount equal to ten percent of the construction costs of the
roadway and associated improvements in or on the roadway will be
required as collateral. The work will be inspected approximately
sixty (60) days prior to the expiration of the two-year correction
period and any deticiencies will be noted to the developer.
11. The County agrees to approval of the final plat of Brush
Creek Stables Subdivision, subject to the terms and conditions of
this agreement.
12. Parties hereto mutually agree that this agreement may be
amended from time to time, provided that such amendment be in writing
and signed by all parties hereto.
13. The Subdivider shall not assign, transfer, convey,
pledge or otherwise dispose of this contract without prior written
consent of the County, which consent shall not be unreasonably
withheld.
14. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and
assigns.
15. It is further agreed that the Subdivider shall at all
times from the acceptance by the Board of County Commissioners of the
roads offered for dedication in the subject subdivision to the
completion and acceptance of said work or improvement by the County,
give good and adequate warning to the traveling public of each and
every dangerous condition existent in or on said on -site and roads or
any of them, and will protect the traveling public from such
defective or dangerous condition. It is understood and agreed that
until the completion of all the on -site road improvements herein
agreea to be performed, each of said roads not accepted as improved
shall be under the charge of Subdivider for the purpose of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this 25th day of April, 1984.
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SUBDIVIDER
COUNTY OF EAGLE, STATE OF COLORADO
By and Through its
BOARD OF COUNTY COMMISSIONERS
By: W, l
Chairman
MICAH, LTD., a Colorado General
Partnership,
By: Mervyn L. Lapin, General Partner
Richard Evancho, General Partner
Mervyn L. La in, General Partner
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Richard Evancho, General Partner
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STATE OF COIAJ/Ctdd
SS
COUNTY OF
The foregoing Subdivision Improvements Agreement was
acknowledged and sworn to before me IN THE STATE OF COLORADO and IN THE
COUNTY OF EAGLE this aoy�-day of April, 1984 by Mervyn L. Lapin, as
General Partner of Micah, Ltd.
My commission expires:
Witness my hand and official seal
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STATE OF Co(OrQ.oC.O
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COUNTY OF
Notary
Address:
CS z s Co 81163Z
The foregoing Subdivision Improvements Agreement was
acknowledged and sworn to before me IN THE STATE OF COLORADO and IN THE
COUNTY OF EAGLE this c2VJh day of April, 1984 by Richard Evancho, as
General Partner of Micah, Ltd.
My commission expires:
Wi,tne;p,g my hand and official seal
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Notary
Address: (4aZha-U4
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EXHIBIT A
BRUSH CREEK STABLES - FILING 1
PUBLIC IMPROVEMENTS
ORDER OF MAGNITUDE ESTIMATE
1) Roads - on site
2) Drainage Improvements
3) Bridges (2 at $16,000.00)
4) Water System
5) Recreational Amenities:
-Tennis Courts (2)
-Junglegym
-Slide
-Swingset
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$560,000.00
73,000.00
36,000.00
952x000.00
$1,621,000.00
50-.,_000.1. 0
$1,671,000.00
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EXHIBIT B
OFF -SITE ROAD IMPROVEMENTS TO BRUSH CREEK ROAD -COST SHARING PROGRAM
BETWEEN MICAH, LTD. AND THE COUNTY OF EAGLE
The off -site road improvements described in this Agreement are
detailed below, including the estimated cost:
A. Off -Site Road Improvement Work required of Eagle County:
Detine by survey, the center line of the
existing Brush Creek Road that is to be
improved. Define by survey, the fence line on
each side of the road. Prepare plans and
bidding documents; contract for the construction
of improvements to said section of Brush Creek
Road. Define the length fo the roadway that
will be improved, which improvements are to be
along that portion of Brush Creek Road
traversing from the most southeasterly entrance
of the proposed "The Terrace" Subdivision to the
southeasterly entrance of the "Brush Creek
Stables" Subdivision, said section of Brush
Creek Road to be approximately 1.7 miles in
length.
B. Off -Site Road Improvement Work of which the work will be
done by the County with the costs to be divided equally pursuant to
the terms of the Agreement.
The County and the Subdivider shall equally divide the cost of
improving Brush Creek Road. Said road improvements include widening
the existing road (18 feet to 22 feet) and replacing shoulders (2 feet
to 4 feet where possible) with estimated costs as follows:
1. Earthwork (add 4 foot shoulder to each side)
(Lump sum)
2. Clean - Lump sum
3. Tack 1,800 gal @ $1.50/gal
4. Skim patch 550 ton @ $75.00/ton
5. Asphalt widening 2 feet,500 ton @ $75.00/ton
6. Fabric 19,000 s. y. @ $1.20' s. y.
7. 2 inch asphlat overlay-3,200 ton @ $34.00/ton
8. Gravel shoulders - 4 foot
1,500 ton @ $20.00/ton
SUBTOTAL
Engineer, inspection, conting.
TOTAL
$66,000.00
1,500.00
2,700.00
41,250.00
37,500.00
22,800.00
108,000.00
30.000.00
$309,750.00
17,750.00
$327,500.00
NOTE: 1. Fluctuation in asphalt cement prices may increase or
decrease the project cost at the time actual construction is initiated.
2. Due to a lack of field surveying data to determine the cubic
yard volume of earthwork required to build the 4' shoulders the lump sum
estimate could vary significantly from the cost projected above.
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