11-02-1993 Mtn Star Supplement To Amend & Restate Subdiv Improv AG528701 B -632 P -644 02/16/94 10:52A PG 1 OF 7 REC
Sara J. Fisher Eagle County Clerk & Recorder 35.00
SUPPLEMENT TO
AMENDED AND RESTATED
SUBDIVISION IMPROVEMENTS AGREEMENT
DOC
THIS AGREEMENT, made and entered into this a day of
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 parties entered into a certain Amended and
Restated Subdivision Improvements Agreement dated May 27, 1993,
and recorded on May 28, 1993, in Book 610 at Page 129, real
property records of Eagle County, Colorado (the "Amended
Agreement "), relating to improvements for Mountain Star, a
subdivision located in the Town of Avon, Eagle County, Colorado
(the "Subdivision "), 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, the parties desire to supplement the Amended
Agreement in order to make alternative provision for completion
of the remaining public improvements ( "Improvements ") and to
release the lien provided for in the Amended Agreement; and
WHEREAS, Subdivider continues to agree 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
followsz
1. The Amended Agreement is hereby supplemented as
hereinafter set forth.
2. subdivider agrees to furnish all equipment, labor and
material necessary to perform and complete, in a good and
workmanlike manner, the Improvements. 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 heretofore or
hereafter submitted to and approved by the Town. 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
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approval and acceptance of the Improvements by the Town.
3. All improvements shall be completed by August 1, 1996.
4. To secure completion of the Improvements, Subdivider
hereby agrees to secure its obligations under this Agreement by
either (i) the payment to an escrow agent acceptable to the Town
of the amount of $1,100,000, or (ii) the furnishing of an
irrevocable letter of credit in such amount. Upon completion of
portions of the improvements, upon payment of the cost of such
improvements, as evidenced by proof satisfactory to the Town, and
upon inspection and approval thereof, the Town shall authorize
reduction of the amount of such collateral, provided the amount
thereof shall not be reduced below the amount provided in
paragraph 5 hereof.
5. Upon completion of the Improvements and upon payment of
the cost 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 to the Amended
Agreement and incorporated herein, or (ii) the furnishing of an
irrevocable letter of credit in the appropriate amount set forth
on said Exhibit D, which letter of credit or escrow, as the case
may be, shall secure the continuing obligations of Subdivider
under this Agreement, the Town agrees to release the security
provided for in paragraph 4 hereof.
6. 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 Ymprovements 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.
7. Upon completion of portions of the Improvements,
Subdivider will cause its engineers (who shall be registered in
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
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528701 B -632 P -644 02/16/94 10:52A PG 3 OF 7
weekly, during construction, with the certification. The Town
may provide periodic inspections as it deems necessary to assure
conformance with approved plans and specifications.
8. 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.
9. 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
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,
10. 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 11 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 lose or claim.
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11. 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
paragraph 5 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
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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
forth in this Agreement are satisfied by Subdivider.
12. In the event that Subdivider defaults in whole or in
part in the performance of this 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. All such costs paid by Town for the
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
paid out of the escrow or the proceeds of the letter of credit
hereinabove provided for. Without limiting the foregoing, Town
may bring a mandatory injunction action against Subdivider to
require installation and construction of the 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.
13. 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
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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,
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vehicle garage and material storage (the
"Facility "). Prior to or contemporaneously with
final Plat approval of the Subdivision by the
Town, 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 lesser 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.
14. 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.
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15. 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.
16. The first priority lien on real property within the
Subdivision provided for in the Amended Agreement shall be
released and discharged upon the providing of the collateral
hereinabove described. Upon request the Town will surrender the
promissory note and execute a release of the deed of trust
securing the performance of the Amended Agreement.
17. This Agreement may be amended from time to time,
provided that such amendment be in writing and signed by all
parties hereto.
18. 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.
19. 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.
Y.
TOWN OF AVON, a Colorado
municipal corporation
By:�
Mayor
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528701 B -632 P -644 02/16/94 10:52A PG 7 OF 7
FOUNTAIN STAR LIMITED LIABILITY
COMPANY, a Wyoming limited
liability company
BY: WFS Company, as Authorized
Agent of the Management
Committee of Mountain Star
Limited Liability Company
BY: It6
Willi J. Wright, Jr.
General Partner
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
Subscribed and sworn to before me on this day of
, 1993, by Albert J. Reynolds as Mayor, and Patty
N y rt as Town Clerk, of the Town of Avon.
Witness my hand and official seal.
' Commission expires : `r — 18 - 57
�••` + _ ary Public
STATE OF COLORADO )
$s.
COUNTY OF EAGLE )
Subscribed and sworn to before me on this �'A day of
r , 1993, by Willis J. Wright, Jr., General Partner
of WFS Company, Authorized Agent of the Management Committee of
Mountain Star Limited Liability Company, a Wyoming limited
liability company.
Witness my hand and official seal.
My Commission expires: /� 9
AI ^T
ary Public
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