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Home My WebLink AboutC84-010 Subdivision Improvements Agreement_Arrowhead at Vail_third amendment39. THIRD AMENDED SUBDIVISION IMPROVEMENTS AGREEMENT ?893yV PHGF JOHNNETTE PH►LLIPS FACLE CTY. RECORDER I !G 21_ 12 iz PM Tq THIS AGREEMENT is made and entered into this � day of Gr 1984, by and between ARROWHEAD AT VAIL, a joint venture, her inafter 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 25, 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, and, more recently (ii) that certain Second Amended Subdivision Improvements Agreement (the "Second PAmended Agreement") between the Subdivider and the County, dated 25, 1984, and recorded August U, 1984, in Book Zt) at Page n, all in the real property records of Eagle County, Colorado. The Second 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. 129, and Arrowhead at Vail Filing No. 15 ("Filing No. 15"). C. The Subdivider, as a condition of approval of the final plat of Arrowhead at Vail Filing No. 14, County of Eagle, State of Colorado ("Filing No. 14"), wishes to further amend and restate the Second Amended Agreement, also in accordance with Colo. Rev. Stat. § 30-28-137, to restate the obligations incurred by the Subdivider under the Second Amended Agreement, and to document the obligations to the County hereby incurred by the Subdivider in connection with 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 above -referenced improvements, by means of a Third Amended Promissory Note and a Third Amended Deed of Trust. -2- In consideration of the following mutual covenants and agreements, the Subdivider and the County agree to amend and restate the First 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 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, 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 County Commissioners of the County or said Board's appointed designee. -3 - 11%WW 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. 10, Filing No. 11, and Filing No. 12 on or before November 30, 1984; the work described above relating to Filing No. 15 on or before November 30, 1985; and the work described above relating to Filing No. 14 on or before i, 1985. 2. Cost -collateral. The total estimated cost of said work and improvements for Filing No. 10, Filing No. 11, Filing No. 12, Filing No. 15, and Filing No. 14 is the sum of Three Million Three Hundred Thirty-four Thousand Seven Hundred Sixty-one and no/100 ( $ 3 , 3 3 4 , 7 61.0 0) , as evidenced by the final estimate of probable con- struction 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 Second Amended Promissory Note in the amount of Three Million Three Hundred Thirty-four Thousand Seven Hundred Sixty-one and no/100 Dollars ($3,334,761.00), secured by a Third Amended Deed of Trust evidencing a first lien on Lot 21, Arrowhead at Vail, Filing No. 11, County of Eagle, State of Colorado, according to the final plat thereof. The original deed of trust filed in connection with the Original Agreement, recorded in Book 375 at -4- Page 880, as amended and restated in the First Amended Deed of Trust recorded April 26, 1984, in Book 383 at Page 989, and in the Second Amended Deed of Trust recorded August oR, 1984, in Book. at Page �, all in the real property records of Eagle County, Colorado, is again amended and restated in its entirety by the Third Amended Deed of Trust. 3. Substitution of Collateral. The Subdivider may at any time substitute the collateral originally deposited with the County under this Agreement for another form of collateral acceptable to the County to guarantee the faithful completion of those improvements referred to herein and the performance of the terms of this Agreement. 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 collat- eral of the Subdivider shall be released by the County to the extent the improvements are actually completed pursuant to this Agreement. The County acknowledges that the property provided as collateral under this Agreement has a value in excess of the costs of the improvements described in Exhibit A. Accordingly, the County agrees that the subject property provided as collateral may also serve as collateral for other improvements to be constructed by the Subdivider within Arrowhead at Vail up to an aggregate maximum of five million dollars ($5,000,000.00). 4. 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 -5- 11% ► faro/ 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. 5. 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, 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, 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. 6. Release 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 -6- 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 icati ons, it shall furnish the Subdivider a list of specific 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 specifications. 7. warranties. Notwithstanding any provision to the con- 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 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 conse- quences thereof. Repair or replacement made under the one-year cor- rection 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 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. 8. Approval -of plat. The County agrees to - the approval of the final plat of 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. 121 -7- and Filing No. 15 is subject to the terms and conditions of this Agreement. 9. Amendment. The parties hereto mutually agree that this Agreement may be amended from time to time, provided that such amend- ment is in writing and signed by all parties hereto. 10. 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. 11. darning of dangerous conditions. It is further 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 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. 12. Amendment and Restatement. It is understood and agreed that the Original Agreement, as previously amended by the First Amended Agreement and the Second 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. ��f{a ATTESTl; By: � r, ley,? .of the and o A C6Unty Commissioners -9- COUNTY COUNTY OF EAGLE, STATE OF COLORADO By and Through its BOARD OF COUNTY COMMISSIONERS By: A41kz W. Keith Troxel, Ch irman 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 Delaware corporation. /Ut"'f&t,� By: Willis J. Wright, Jr. President By: WEDGE REAL ESTATE LTD., a Texas limited partnership By: MINEFA RESORTS, INC., a Delaware corporation, so=�,*,d ral partner By• Willi J. right, Jr. President STATE OF COLORADO ) SS. COUNTY OF EAGLE ) The fo goin instrument was acknowledged before me this day of 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 % tary Public Address g ITA P, _ A. i ..... .r/ltl, -10 STATE OF COLORADO ) SS. COUNTY OF EAGLE ) The fo goin instrument was acknowledged before me this _,2�-day of , 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. [ SEAL ] WITNESS my hand and official seal. My commission expires 1/ NoVary Public Address -11- s STATE OF COLORADO COUNTY OF EAGLE ) SS. hc( The f reggoing instrument was acknowledged before me this day of >a� S'1984, by W. Keith Troxel as Chairman and !L -�-}� as Clerk of the Board of County Commissioners of Eagle County, Colorado. WITNESS my hand and official seal. My commission expires ,1 No ary Public P 0 7 r 0 Address -12- Exhibit A to Subdivision Improvements Agreement Eagle County Board of County Commissioners and Arrowhead at Vail Description of Improvements Arrowhead at Vail shall construct water, sewer, roads and landscaping at Arrowhead at Vail in accordance with the engineering plans prepared by Centenn al Engineering, Inc.. The following is a cost and timetable for completion of each category of improvement. Filing Roads Water.: Sewer Total 10 $''147;125 $ 156.9645 $1312736 $ 4359506 11 2352600 2609280 1819321 6779201 12 322,442 949500 129825 429,767 14 1389927 1409240 479903 3272070 15 4809520 2759000 1.752810 9319330 Offsite - 8299790 589136 8879926 $1;3?.4,614 $1*2756,455 $607,731 $39688,800 Completed 1873 - (1252520) (228,519) (3549039) $10249614 $19630,935 $379,212 $39334,761