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05-27-1993 Mtn Star Amended & Restated Subdiv Improvements AGr pLi 4 f'( 506208 B -610 P -129 05128193 10:52 PG 1 OF 15 REC `J SARA J. FISHER EAGLE COUNTY CLERK. COLORADO 75.00 AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT DOC 0.00 THIS AGREEMENT, made and entered into this day of G{(�I , 1993, by and between Mountain Star Limited Liability Company, a Wyoming limited liability company, hereinafter referred to as "Subdivider," and the Town of Avon, a Colorado Municipality, by and through its Council, hereinafter referred to as the "Town." WITNESSETH: WHEREAS, The Town entered into a certain Subdivision Improvements Agreement Wildwood Subdivision dated July 19, 1979, between Benchmark at Beaver creek ( "Benchmark ") and the Town, and recorded on July 12, 1979, in Book 288 at Page 128, and a certain Agreement Regarding Improvement of Subdivision dated March 5, 1982 with Section 36, Inc., a Colorado Corporation ( "Section 36 "), recorded March 5, 1982 in Book 337 at Page 365, each in the real property records of Eagle County, Colorado (collectively, the "Original Agreements "), relating to improvements originally encompassing real property which is currently proposed as the site for Mountain Star, a subdivision located in the Town of Avon, Eagle County, Colorado (the "Subdivision "). WHEREAS, Subdivider (as successor in interest to Benchmark and Section 36), in connection with the approval of the final plat for the Subdivision, desires to enter into an amended and Restated Subdivision Improvements Agreement with the Town amending the Original Agreements and restating them in their entirety in order to establish the responsibilities for certain public improvements to the Subdivision as provided for by Section 16.24.100 of the Avon Municipal Code, as amended; and WHEREAS, pursuant to said Code, the Town desires to amend and restate the Original Agreement in order to make reasonable provision for completion of certain public improvements ( "Improvements ") set forth in Exhibit A attached hereto and by reference incorporated herein; and WHEREAS, Subdivider has agreed to be responsible for the performance and completion of the Improvements. NOW, THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. The Original Agreement is hereby amended and restated in its entirety. 40) G� 506208 B -610 P -129 05128193 10:52 PG 2 OF 15 2. Subdivider agrees to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all improvements and work incidental thereto as set forth in Exhibit A. Subdivider further agrees that it will be responsible for all costs related to said work. All said work shall be performed substantially in accordance with the construction specifications and drawings as submitted to and approved by the Town prior to the commencement of construction of Improvements. All work shall be done under the inspection procedures and standards established by the Town, shall be subject to the reasonable satisfaction of the Town and shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town. =, 3. The Town agrees that upon compliance with all other.,, conditions of approval,and subject to the terms and conditions of this Agreement, the Final Plat of the Subdivision shall be promptly filed for record with the Office of the Eagle County Clerk and Recorder. 4. The parties acknowledge that the Subdivision may be developed in two (2) separate phases, the first phase consisting of 73 lots and the second phase consisting of 15 lots. Exhibit A shall designate those improvements that are related to each Phase. No lot in the 15 lot Phase shall be closed, or the lien released, until all improvements related to the first Phase shall have been completed. Subdivider agrees that it will not close on the sale of any lot within a particular phase of the Subdivision until all Improvements have been completed as related to such phase, excluding those items listed below, and the particular lot being sold if encumbered pursuant to Section 5 below has been released by the Town as provided in Section 7 below. The following items need not be completed prior to the closing of a sale of any of the Subdivision _lots but shall be completed by August 1, 1996: (a) All Subdivision roads will be completed to final grade but no paving, finishing or landscaping need be completed prior to the sale of a Subdivision lot. Paving, finishing and landscaping will be completed on or before August 1, 1996. (b) The Improvements relating to Buck Creek Road need not be completed provided they are completed prior to the closing of the sale of the Fiftieth (50th) lot within the Subdivision. No more than forty nine (49) lot sales may be closed prior to the completion of said Improvements. K 506208 B -610 P -129 05128193 10:52 PG 3 OF 15 5. To secure completion of the Improvements, Subdivider hereby agrees to secure its obligations under this Agreement as follows: (a) With a first priority lien on real property within the Subdivision the aggregate value of which equals one hundred and ten percent (110 %) of the total estimated costs for completion of the Improvements, excluding costs related to Improvements to Buck Creek Road, as outlined on Exhibit A. A list of the lots with their respective agreed upon values is attached as Exhibit B. Subdivider may substitute the collateral subject to such lien with other security (acceptable to Town) of equal or greater value. Said lien shall be evidenced by Subdivider's first lien deed of trust or mortgage in form acceptable to Town and insured as a first lien by a title insurance company acceptable to Town (all costs of title insurance shall be paid by Subdivider). (b) The following Plat Restriction shall be printed on the Final Plat: No lot or parcel in this Subdivision may be sold, conveyed or leased until the requirements of the Amended and Restated Subdivision Improvement Agreement dated `� "� .�-1 1993, with respect to such lot or parcel have been met, and there has been executed a written and acknowledged notice from the Town of Avon, acting through its Town Manager, (or waiver of this Plat Restriction by written and acknowledged Notice) acknowledging fulfillment and compliance of the requirements of said Amended and Restated Subdivision Improvement Agreement for said lot or parcel. Any such sale, conveyance or lease made in violation hereof shall be null and void. This Restriction as to a particular lot or parcel shall be deemed terminated upon recordation of any of the above described Notices. Nothing herein shall restrict the sale or transfer of the entire Subdivision that is made subject to the terms of the said Amended and Restated Subdivision Improvement Agreement. 6. In addition to the security provided in Section 5 above, Subdivider agrees to provide to the Town a loan commitment (in 3 �as �J O 506208 B -610 P -129 05128193 10:52 PG 4 OF 15 form and substance acceptable to Town) from National Fidelity Life Insurance company, a Missouri corporation, or its affiliate or subsidiary, in an amount equal to the estimated costs for completing Improvements to Buck Creek Road as reasonably approved by the Town. Loan disbursements shall be made to Subdivider upon the completion of itemized Improvements for which cost estimates have been set forth in Exhibit C attached hereto and incorporated herein, upon the written request of Subdivider and written approval of the Town or its designee; provided, however, that in no event shall any such progress payment cause the remaining sum to be available in the loan commitment for subsequent disbursements to be less than 100% of the costs to complete all remaining improvements as estimated at the time of each progress payment. Town shall be a third party beneficiary of said loan commitment and no modifications or changes shall be made to said loan commitment without the written approval of Town. 7. If the Subdivider is not in default of any of the terms for any release the obligations above shall be of this Agreement at the time a request is made as provided herein, the real property securing under this Agreement as discussed in Section 4 released by the Town as follows: (a) Upon completion of seventy -five percent (75 %) of the Improvements relating to a particular phase of the Subdivision, including those Improvements noted in Section 4(a) above, and all costs relating to such seventy -five percent (75 %) of the Improvements are paid, as evidenced by proof satisfactory to the Town, the Town hereby agrees to release liens on lots representing seventy five (75% ) of the total value secured within the applicable phase of the Subdivision. (b) Upon completion of all Improvements relating to a particular phase of the Subdivision, including those Improvements noted in Section 4(a) above, and upon payment of one - hundred percent (100 %) of the costs of such Improvements, as evidenced by proof satisfactory to the Town, and further upon either (i) the payment to the Escrow Agent of the amount set forth on Exhibit D attached hereto and incorporated herein, or (ii) the furnishing of an irrevocable letter of credit in the appropriate amount set forth on Exhibit D, which letter of credit of escrow, as the case may be, shall secure the continuing obligations of Subdivider under this Agreement, the Town agrees to release one hundred percent (100 %) of the Applicable phase of 4 506208 B -610 P -129 05128193 10:52 PG 5 OF 15 the Subdivision. 8. Subdivider shall at all times prior to acceptance of any publicly dedicated roadways within the Subdivision, and including Buck Creek Road, by the Town give good and adequate warning to the traveling public of each and every dangerous condition existent in said roads and shall protect the traveling public from such defective or dangerous conditions. Until the completion of all the Improvements herein agreed to be constructed, roads not accepted as improved shall be under the charge and control of Subdivider for the purpose of this agreement; and Subdivider may close all or a portion of any street or road within the Subdivision whenever it is necessary to protect the traveling public during the construction or installation of the Improvements herein agreed to be made. 9. Upon completion of portions of the Improvements, t� Subdivider will cause its engineers (who shall be registered in (a the State of Colorado) to certify to the Town in writing that the installation of the Improvements, as portions thereof may be completed from time to time, have been completed in conformance with all standards, drawings and specifications as submitted to and previously approved by the Town. Inspection reports, test results and other supporting documentation shall be submitted weekly, during construction, with the certification. The Town may provide periodic inspections as it deems necessary to assure conformance with approved plans and specifications. 10. a) Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been paid in full. b) Additional fees shall be paid to the Town by Subdivider, within twenty (20) days after delivery of written invoice for such fees, to cover the cost of inspections by the town. The fees will be based on direct (out -of- pocket) costs of the Town, but in no event will the total amount of such additional fees exceed two percent of construction costs. 11. Subdivider agrees that in the event it shall fail to perform its obligations as set forth herein, the Town shall be under no obligation to complete or perform any of the said Improvements. No one, individually or otherwise, other than the parties hereto, shall acquire, as a result of this Agreement, any rights, claims or obligations from or against the Town, its agents, employees or officers. Actions by the Town against Subdivider to enforce any provision of this Agreement shall be at the sole discretion of the Town. No third parties shall have any 5 506208 B -610 P -129 05128193 10:52 PG 6 OF 15 rights to require any action by the Town pursuant to this Agree- ment; and this Agreement shall not create a liability on the part of or be a cause of action against the Town, for any personal or property damage that may result to any third parties from the failure of the Subdivider to complete the improvements herein specified. 12. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the work specified in this Agreement, nor shall the Town, nor any officer, agent, or employee thereof, be liable for any persons or property injured by reason of the nature of said work. Subdivider hereby agrees to indemnify and hold harmless the Town, and any of its officers, agents, and employees against any losses, claims, damages or liabilities to which the town or any of its officers, agents, or employees may become subject to, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any obligation of Subdivider as hereinbefore stated, which arise prior to the expiration of all warranty periods set forth in Section 14 below. Furthermore, Subdivider shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. 13. The Improvements shall be warranted to be free from defect in workmanship or quality for a period of one (1) year after acceptance of all work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. The amounts discussed under Section 7 (b) above for completion of all Improvements shall be retained in escrow in a separate interest bearing account or accounts during such one (1) year period as a Guaranty of performance of any work required pursuant to the above - described warranty or, alternatively, Subdivider shall, at its option, provide an irrevocable letter of credit to the Town in a form approved by the Town, which approval shall not be unreasonably withheld. In the event an escrow is used, an escrow agreement satisfactory to the Town, shall be entered into. In the event any corrective work is performed during the one year warranty period then the warranty on said corrected work shall be extended for one year from the date on which it is completed. Subdivider agrees to allow 110% of the cost of any significant corrective work, as estimated and approved by the Town, to be retained in escrow, or alternatively, at Subdivider's option, to remain subject to the abovementioned letter of credit, for a period of one year from the date of completion of the corrected work. Interest on the balance in said escrow account shall accrue to the benefit of Subdivider, provided that the obligations set 2 506208 B -610 P -129 05128193 10:52 PG 7 OF 15 forth in this Agreement are satisfied by Subdivider. 14. In the event that Subdivider defaults in whole or in part in the performance of this Subdivision Improvements Agreement, and after the expiration of thirty (30) days after having given written notice to Subdivider of such default during which period of time the Subdivider failed to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the improvements specified in this agreement. All such costs paid by Town for such improvements, together with all costs of personnel, equipment and other matters expended by Town in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider. Any such costs which have not been reimbursed by Subdivider shall be a lien on any property in the Subdivision owned by Subdivider at �J the time of default. Said lien may be foreclosed in the samea manner as a mortgage and shall entitle Town to add its costs and attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, Town may bring a mandatory injunction action against Subdivider to require installation and construction of said improvements, if not constructed within the time limits described in this Agreement. If any such action is brought by Town, Town shall be awarded its court costs and attorneys' fees. 15. In addition to the other Improvements described in this Agreement, Subdivider hereby agrees as follows: (a) Subdivider agrees to pay all costs, up to a maximum of $300,000.00, for certain asphalting and related work to Nottingham, Metcalf and Wildridge Roads as outlined on Exhibit E attached hereto and incorporated herein by reference. All work related to such roads will be managed and implemented by the Town, and Subdivider's obligation under this Section is limited solely to the one -time payment of costs as discussed herein. The Town agrees to employ a competitive bidding process in awarding the work. The project budget based on successful bid amount plus other estimated costs, or $300,000.00, whichever is less, shall be paid to the Town by Subdivider within ten (10) days following notice from the Town of the receipt of a successful bid. (b) Subdivider agrees to pay to the Town certain sums related to a proposed public works facility, vehicle garage and material storage (the "Facility "). Prior to or contemporaneously with 506208 B -610 P -129 05128193 10:52 PG 8 OF 15 final Plat approval of the Subdivision by the Town, subdivider, Subdivider agrees to pay to the Town $25,000.00 to be applied toward initial costs of developing the Facility. All work related to the Facility will be managed and implemented by the Town, and Subdivider's obligation under this Section is limited solely to the one -time payment of costs as discussed herein. The Town agrees to employ a competitive bidding process in awarding the work. Within ten (10) days following notice from the Town of the receipt of a successful bid, subdivider agrees to pay to the Town the lessor of the sum of $150,000.00 or the project budget based on successful bid amount plus other estimated costs, in addition to the $25,000.00 discussed above. 16. It is understood that the construction of Buck Creek Road as access to the Subdivision is conditioned upon the Subdivider's effecting a land trade with the United States Forest Service, obtaining an easement for Buck Creek Road or maintaining in effect a special use permit for Buck Creek Road. Buck Creek Road shall accordingly be constructed in accordance with any requirements of the Forest Service pertaining thereto. In the event of the failure of all of the aforesaid conditions, this Agreement shall be deemed to be of no further force and effect, and an amended agreement shall be entered into by the parties acknowledging that Wildwood Road shall be the sole access to the Subdivision. zli 17. Developer agrees that, upon completion of the construction of the hiking trail provided for in Tract C of the Subdivision, it will grant an easement therefor to the Town. 18. This Agreement may be amended from time to time, provided that such amendment be in writing and signed by all parties hereto. 19. In the event of a lawsuit arising out of the terms of this Agreement, the prevailing party shall be entitled to court costs and reasonable attorney's fees. 20. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. The parties have executed this Agreement as of the date above written. :