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12-12-2005 THD COLORADO INC DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENTEAGLE COUNTY;-'CO' 200602246 TEAK J ~ 23 os~.••""'••" 01/27/2006 11111111111111111111111111111111111111111111111111111111111111 DRY CREEK PUD I >1 ~ SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this la day of~-Oz W> '2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision fir-Urbvements AgYee:r"nt ("Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shah be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek subdivision Improvement Agreement, 200602246 EAGLE 23 R .'$':p~~ 01/2/2806 11111111111111111111111111111111111111111111111111111111111111 DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this l day of Oas-s 2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision hmprovernents Agreeme- nt ("Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shah be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek subdivision Improvement Agreement. 200602246 23 ~,°a D ~ 1/2i/2006 11111111111111111111111111111111111111111111111111111111111111 DRY CREEK PUD i SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this la day of~-Ot 005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision Impro','en °?tS Agree y Prl` ("Aa,een?ent") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shaii be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek Subdivision Improvement Agreement, 200602296 EAGLE 23 ° :•y I1I 01/27/2006 ~ 111111111111111 ,1111111111111111111111111111111111111111111111111 pDRY CREEK PUD + SUBDIVISION IMPROVEMENTS AGREEMENT = r THIS AGREEMENT, made and entered into this Ir-day of~.tCeo '2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision hmpraverncnts Agree::,°nt ("Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shaii be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek Subdivision Improvement Agreement, $ 01/27/2006 REC: $36.00 IB~I~III~I~II111II111IVWInN111III~I111M11VNfl I DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this 1~= day of~-O.r? fEAYe2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council.(the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision Improvements Agreern°nt ("Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shali be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and asset forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek Subdivision Improvement Agreement, shall be deemed to mean the award and execution of contracts for the construction of the Improvements as depicted on Exhibit A. (b) Inspection Procedures. (1) All work shall be done under the inspection procedures and standards established by the Town and/or Holy Cross Electric, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comcast ("Utilities"), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town and/or the Utilities. Such inspections by the Town and/or Utilities shall not relieve the Subdivider or his agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (2) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Subdivider and subject to the limitations set forth in paragraph 8 below. (3) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance ("Notice of Non-Compliance") to the Subdivider. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non- Compliance must be provided to the Subdivider within two (2) working days of the date of the inspection. Security for Completion of Improvements. (a) Security. To secure completion of the Improvements, the Subdivider hereby agrees to secure the respective obligations under this Agreement with collateral in accordance with Section 16.24. 100 of the Code. Collateral shall be one or a combination of the following: cash, its equivalent or irrevocable letter of credit ("Collateral"). 4. Subdivider Improvements. (a) Security for Completion of Public Improvements. Subdivider shall deliver to the Town an irrevocable letter of credit issued by a reputable financial institution or other Collateral consistent with Section 16.24. 100 of the Code in an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of the Improvements as set forth on Exhibit B. The irrevocable letter of credit or other Collateral shall be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the Subdivision. Dry Creek Subdivision Improvement Agreement, (b) Progress Payments on Sub divider's Improvements. Upon completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7 below verifying that itemized portions of the Improvements have been completed, the amount of Collateral may be reduced periodically provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of all remaining Improvements. Upon completion of all work related to the Improvements and the Town's and Utility's acceptance of the Improvements, the entire amount of remaining collateral less those amounts described in paragraph 6 below, shall be promptly released. (c) Default by Subdivider. In the event of a default in whole or in parl by Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the purpose of undertaking completion or remediation work on the Subdivider's Improvements after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in default, and (ii) the funds are required in order to complete or correct work on the Subdivider's Improvements. 6. Warranty Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. Ten percent (10%) of the total actual cost of completion of all Improvements shall be retained by the Town as collateral during such one (1) year period as a guaranty of performance of any work required pursuant to the above described warranty. 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. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Subdivider, if sufficient funds are not held by the Town, in accordance with Section 16.24.100, for a period. of one year from the date of completion of the corrected work. 7. Engineering Certification. Upon completion of portions of the Improvements, Subdivider will cause his engineers (who shall be registered in the State of Colorado) to certify in writing that the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results and other supporting documentation shall be submitted with the certification. 8. Subdivision and Inspection Fees. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been Dry Creek Subdivision Improvement Agreement, paid in full. Additional fees, if any, shall be paid by the Subdivider within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such additional fees exceed five percent (5%) of construction costs. 9. No Obligation of Town to Complete Improvements. 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 or to issue permits for development within the Subdivision. 10. Non-Liability of Town; Indemnification. 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. To the extent permitted by law, 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, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider, as hereinbefore stated. Furthermore, the 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. 11. Rights of Town in Event of Default. 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 fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A. All such costs paid by the Town for such Improvements, together with all costs of personnel, equipment and other matters expended by the Town in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider based upon the underlying responsibility for the Improvement in question. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, shall be a lien on any property in the Subdivision owned by Subdivider at the time of default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the 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 the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. Dry Creek Subdivision Improvement Agreement, 4 12. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Subdivider under this Agreement have been satisfied. 13. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 14. Covenants Running with the Land. 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 hereto have executed this Agreement as of the date first above written. ATTEST: T4 n lerk APPROVED AS TO FORM: T wn Attorney TOWN OF AVON, a Colorado Municipal Corporation By: 6a C"' Mayor Trenton Hubbard, dba THD Colorado, Inc. By: V~+ Subdivider X11 D ~-~O . Dry Creek Subdivision Improvement Agreement, EXHIBIT A Dry Creek Development Subdivision Improvements Allreement APPROVED PLANS: Dry Creek PUD Construction Drawings Wildridge, Town of Avon, Colorado September, 2005 Sheets 1 through 8 Release Date: December 1, 2005 Prepared by: Marcin Engineering LLC P.O. Box 1062 Avon Colorado 81620 Dry Creek Subdivision Improvement Agreement, EXHIBIT B Dry Creek Development Subdivision Improvements Agreement PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE Mobilization & Site Prep Road Cut and Repair . Water Main and Service Installation Sewer Main and Service Installation Shallow Utility Service Installation (Natural Gas, Cable TV, Telephone & Electric) Revegetation Construction Observation, Testing & Certifications Contingencies @ 15% Total Estimated Cost $ 10,250 6,000 21,500 17,250 11,250 3,500 7,000 11,500 $ 88;250 Security Required per Subdivision Improvements Agreement (110%) $ 97,075 Cost Estimate and Security Amount Based December 2, 2005 and November 30, 2005: From: November 28, 2005 Quintana Construction P.O. Box 4316 Eagle, Colorado 81631-4316 on Proposals dated November 28, 2005, December 2, 2005 Adams Excavating & Trucking, Inc. 1370 Spring Creek Road Gypsum, CO 81637 November 30, 2005 Kemp & Company, Inc. P.O. Box 189 Edwards, CO 81632 To: THD Colorado Inc. P.O. Box 8338 Avon, Colorado 81620 Project Reference: Dry Creek PUD A Resubdivision of Lot 44, Block 2, Wildridge Town of Avon, Eagle County, Colorado Project Engineers: Marcin Engineers, LLC P.O. Box 1062 Avon, CO 81620 Dry Creek Subdivision Improvement Agreement, 7 EC: $36.00 DOC: S 01/27/2006 1111111111111111111111111111111111111111111111111111111111111111 DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this 1' day of~.tUAe2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council-(the "Town"). RFC'ITAT,R WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), dcsires to enter into a Subdivision ii.1praven:erts Agreement, (".Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shali be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek Subdivision Improvement Agreement, shall be deemed to mean the award and execution of contracts for the construction of the Improvements as depicted on Exhibit A. (b) Inspection Procedures. (1) All work shall be done under the inspection procedures and standards established by the Town and/or Holy Cross Electric, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comeast ("Utilities"), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town and/or the Utilities. Such inspections by the Town and/or Utilities shall not relieve the Subdivider or his agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (2) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Subdivider and subject to the limitations set forth in paragraph 8 below. (3) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance ("Notice of Non-Compliance") to the Subdivider. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non- Compliance must be provided to the Subdivider within two (2) working days of the date of the inspection. Security for Completion of Improvements. (a) Security. To secure completion of the Improvements, the Subdivider hereby agrees to secure the respective obligations under this Agreement with collateral in accordance with Section 16.24. 100 of the Code. Collateral shall be one or a combination of the following: cash, its equivalent or irrevocable letter of credit ("Collateral"). 4. Subdivider Improvements. (a) Security for Completion of Public Improvements. Subdivider shall deliver to the Town an irrevocable letter of credit issued by a reputable financial institution or other Collateral consistent with Section 16.24. 100 of the Code in an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of the Improvements as set forth on Exhibit B. The irrevocable letter of credit or other Collateral shall be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the Subdivision. Dry Creek Subdivision Improvement Agreement, (b) Progress Payments on Sub divider's Improvements. Upon completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7 below verifying that itemized portions of the Improvements have been completed, the amount of Collateral may be reduced periodically provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of all remaining Improvements. Upon completion of all work related to the Improvements and the Town's and Utility's acceptance of the Improvements, the entire amount of remaining collateral less those amounts described in paragraph 6 below, shall be promptly released. (c) Default by Subdivider. In the event of a default in whole or in part by Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the purpose of undertaking completion or remediation work on the Subdivider's Improvements after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in default, and (ii) the funds are required in order to complete or correct work on the Subdivider's Improvements. 6. Warranty Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. Ten percent (10%) of the total actual cost of completion of all Improvements shall be retained by the Town as collateral during such one (1) year period as a guaranty of performance of any work required pursuant to the above described warranty. 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. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Subdivider, if sufficient funds are not held by the Town, in accordance with Section 16.24.100, for a period of one year from the date of completion of the corrected work. 7. Engineering Certification. Upon completion of portions of the Improvements, Subdivider will cause his engineers (who shall be registered in the State of Colorado) to certify in writing that the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results and other supporting documentation shall be submitted with the certification. 8. Subdivision and Inspection Fees. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been Dry Creek Subdivision Improvement Agreement, paid in full. Additional fees, if any, shall be paid by the Subdivider within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such additional fees exceed five percent (5%) of construction costs. 9. No Obligation of Town to Complete Improvements. 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 or to issue permits for development within the Subdivision. 10. Non-Liability of Town; Indemnification. 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. To the extent permitted by law, 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, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider, as hereinbefore stated. Furthermore, the 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. 11. Rights of Town in Event of Default. 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 fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A. All such costs paid by the Town for such Improvements, together with all costs of personnel, equipment and other matters expended by the Town in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider based upon the underlying responsibility for the Improvement in question. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, shall be a lien on any property in the Subdivision owned by Subdivider at the time of default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the 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 the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. Dry Creek Subdivision Improvement Agreement, 4 12. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Subdivider under this Agreement have been satisfied. 13. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 14. Covenants Running with the Land. 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 hereto have executed this Agreement as of the date first above written. 1 ATTEST: To n lerk APPROVED AS TO FORM: fTwn Attorney TOWN OF AVON, a Colorado Municipal Corporation By: 6~ak Mayor Trenton Hubbard, dba THD Colorado, Inc. BB vv: Subdivider T1 D G(Dr"0 . Dry Creek Subdivision Improvement Agreement, i EXHIBIT A Dry Creek Development Subdivision Improvements Agreement APPROVED PLANS: Dry Creek PUD Construction Drawings Wildridge, Town of Avon, Colorado September, 2005 Sheets 1 through 8 Release Date: December 1, 2005 Prepared by: Marcin Engineering LLC P.O. Box 1062 Avon Colorado 81620 Dry Creek Subdivision Improvement Agreement, 6 EXHIBIT B Dry Creek Development Subdivision Improvements Agreement PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE Mobilization & Site Prep $ 10,250 Road Cut and Repair 6,000 Water Main and Service Installation 21,500 Sewer Main and Service Installation 17,250 Shallow Utility Service Installation 11,250 (Natural Gas, Cable TV, Telephone & Electric) Revegetation 3,500 Construction Observation, Testing & Certifications 7,000 Contingencies @ 15% 11,500 Total Estimated Cost $ 88;250 Security Required per Subdivision Improvements Agreement (110%) $ 97,075 Cost Estimate and Security Amount Based December 2, 2005 and November 30, 2005: From: November 28, 2005 Quintana Construction P.O. Box 4316 Eagle, Colorado 81631-4316 on Proposals dated November 28, 2005, December 2, 2005 Adams Excavating & Trucking, Inc, 1370 Spring Creek Road Gypsum, CO 81637 November 30, 2005 Kemp & Company, Inc. P.O. Box 189 Edwards, CO 81632 To: THD Colorado Inc. P.O. Box 8338 Avon, Colorado 81620 Project Reference: Dry Creek PUD A Resubdivision of Lot 44, Block 2, Wildridge Town of Avon, Eagle County, Colorado Project Engineers: Marcin Engineers, LLC P.O. Box 1062 Avon, CO 81620 Dry Creek Subdivision Improvement Agreement, 7 • . REC:. $36.00 DOC: 5 84:50:24PI1 e 1 /27/2006 t DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this la day of~-OtUd&F25005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council-(the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), desires to enter into a Subdivision Improver ents Agreem°nt ("Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shaii be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek Subdivision Improvement Agreement, _0 shall be deemed to mean the award and execution of contracts for the construction of the Improvements as depicted on Exhibit A. (b) Inspection Procedures. (1) All work shall be done under the inspection procedures and standards established by the Town and/or Holy Cross Electric, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comcast ("Utilities"), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town and/or the Utilities. Such inspections by the Town and/or Utilities shall not relieve the Subdivider or his agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (2) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Subdivider and subject to the limitations set forth in paragraph 8 below. (3) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance ("Notice of Non-Compliance") to the Subdivider. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non- Compliance must be provided to the Subdivider within two (2) working days of the date of the inspection. Security for Completion of Improvements. (a) Security. To secure completion of the Improvements, the Subdivider hereby agrees to secure the respective obligations under this Agreement with collateral in accordance with Section 16.24. 100 of the Code. Collateral shall be one or a combination of the following: cash, its equivalent or irrevocable letter of credit ("Collateral"). 4. Subdivider Improvements. (a) Security for Completion of Public Improvements. Subdivider shall deliver to the Town an irrevocable letter of credit issued by a reputable financial institution or other Collateral consistent with Section 16.24. 100 of the Code in an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of the Improvements as set forth on Exhibit B. The irrevocable letter of credit or other Collateral shall be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the Subdivision. Dry Creek Subdivision Improvement Agreement, I (b) Progress Payments on Sub divider's Improvements. Upon completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7 below verifying that itemized portions of the Improvements have been completed, the amount of Collateral may be reduced periodically provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of all remaining Improvements. Upon completion of all work related to the Improvements and the Town's and Utility's acceptance of the Improvements, the entire amount of remaining collateral less those amounts described in paragraph 6 below, shall be promptly released. (c) Default.by Subdivider. in the event of a default in whole or in part by Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the purpose of undertaking completion or remediation work on the Subdivider's Improvements after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter of credit or other collateral by Resolution of the Town Council stating (1) that Subdivider is in default, and (ii) the funds are required in order to complete or correct work on the Subdivider's Improvements. 6. Warranty Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. Ten percent (10%) of the total actual cost of completion of all Improvements shall be retained by the Town as collateral during such one (1) year period as a guaranty of performance of any work required pursuant to the above described warranty. 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. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Subdivider, if sufficient funds are not held by the Town, in accordance with Section 16.24.100, for a period. of one year from the date of completion of the corrected work. 7. Engineering Certification. Upon completion of portions of the Improvements, Subdivider will cause his engineers (who shall be registered in the State of Colorado) to certify in writing that the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results and other supporting documentation shall be submitted with the certification. 8. Subdivision and Inspection Fees. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been Dry Creek Subdivision Improvement Agreement, paid in full. Additional fees, if any, shall be paid by the Subdivider within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such additional fees exceed five percent (5%) of construction costs. 9. No Obligation of Town to Complete Improvements. 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 or to issue permits for development within the Subdivision. 10. Non-Liability of Town; Indemnification. 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. To the extent permitted by law, 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, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider, as hereinbefore stated. Furthermore, the 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. 11. Rights of Town in Event of Default. 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 fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A. All such costs paid by the Town for such Improvements, together with all costs of personnel, equipment and other matters expended by the To' .An in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider based upon the underlying responsibility for the Improvement in question. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, shall be a lien on any property in the Subdivision owned by Subdivider at the time of default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the 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 the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. Dry Creek Subdivision Improvement Agreement. 4 12. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Subdivider under this Agreement have been satisfied. 13. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 14. Covenants Running with the Land. 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 hereto have executed this Agreement as of the date first above written. 4 TOWN OF AVON, a Colorado Municipal Corporation ATTEST: , To n Jerk Mayor APPROVED AS TO FORM: T wn Attorney Trenton Hubbard, dba THD Colorado, Inc. By: Subdivider J "R Cpl ~o Dry Creek Subdivision Improvement Agreement, EXHIBIT A Drv Creek Development Subdivision Improvements Agreement APPROVED PLANS: Dry Creek PUD Construction Drawings Wildridge, Town of Avon, Colorado September, 2005 Sheets 1 through.8 Release Date: December 1, 2005 Prepared by: Marcin Engineering LLC P.O. Box 1062 Avon Colorado 81620 Dry Creek Subdivision Improvement Agreement, EXHIBIT B Dry Creek Development Subdivision Improvements Agreement PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE Mobilization & Site Prep $ 10,250 Road Cut and Repair 6,000 Water Main and Service Installation 21,500 Sewer Main and Service Installation 17,250 Shallow Utility Service Installation 11,250 (Natural Gas, Cable TV, Telephone & Electric) Revegetation 3,500 Construction Observation, Testing & Certifications 7,000 Contingencies @ 15% 11,500 Total Estimated Cost $ 88;250 Security Required per Subdivision Improvements Agreement (110%) $ 97,075 Cost Estimate and Security Amount Based December 2, 2005 and November 30, 2005: From: November 28, 2005 Quintana Construction P.O. Box 4316 Eagle, Colorado 81631-4316 on Proposals dated November 28, 2005, December 2, 2005 Adams Excavating & Trucking, Inc. 1370 Spring Creek Road Gypsum, CO 81637 November 30, 2005 Kemp & Company, Inc. P.O. Box 189 Edwards, CO 81632 To: THD Colorado Inc. P.O. Box 8338 Avon, Colorado 81620 Project Reference: Dry Creek PUD A Resubdivision of Lot 44, Block 2, Wildridge Town of Avon, Eagle County, Colorado Project Engineers: Marcin Engineers, LLC P.O. Box 1062 Avon, CO 81620 Dry Creek Subdivision Improvement Agreement, 7 a..~ppH~': pw.. . p p~0ry1~1/I1I2y/'2I18I06 III11XllIp1 VIIIIIVIInI VIIIIIIryIIY~MluYu ul~IIIIIIIY YI IIII DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this 1 day of~-OtCtoJ 2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town"). RFCITAI,fi WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots 1 - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), ACS, -es to enter into a Subdivision Improvements Agreement ("Agreement") with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision") shaii be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements Dry Creek Subdivision Improvement Agreement, shall be deemed to mean the award and execution of contracts for the construction of the Improvements as depicted on Exhibit A. (b) Inspection Procedures. (I) All work shall be done under the inspection procedures and standards established by the Town and/or Holy Cross Electric, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comeast ("Utilities"), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town and/or the Utilities. Such inspections by the Town and/or Utilities shall not relieve the Subdivider or his agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (2) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Subdivider and subject to the limitations set forth in paragraph 8 below. (3) Notice of Non-Compliance. In the. event that the Town through its inspectors reasonably determines that the Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance ("Notice of Non-Compliance") to the Subdivider. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non- Compliance must be provided to the Subdivider within two (2) working days of the date of the inspection. Security for Completion of Improvements. (a) Security. To secure completion of the Improvements, the Subdivider hereby agrees to secure the respective obligations under this Agreement with collateral in accordance with Section 16.24. 100 of the Code. Collateral shall be one or a combination of the following: cash, its equivalent or irrevocable letter of credit ("Collateral"). 4. Subdivider Improvements. (a) Security for Completion of Public Improvements. Subdivider shall deliver to the Town an irrevocable letter of credit issued by a reputable financial institution or other Collateral consistent with Section 16.24. 100 of the Code in an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of the Improvements as set forth on Exhibit B. The irrevocable letter of credit or other Collateral shall be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the Subdivision. Dry Creek Subdivision Improvement Agreement, (b) Progress Payments on Sub divider's Improvements. Upon completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7 below verifying that itemized portions of the Improvements have been completed, the amount of Collateral may be reduced periodically provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of all remaining Improvements. Upon completion of all work related to the Improvements and the Town's and Utility's acceptance of the Improvements, the entire amount of remaining collateral less those amounts described in paragraph 6 below, shall be promptly released. (c) Default by Subdivider. In the event of a default in whole or in part by Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the purpose of undertaking completion or remediation work on the Subdivider's Improvements after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in default, and (ii) the funds are required in order to complete or correct work on the Subdivider's Improvements. 6. Warranty Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. Ten percent (10%) of the total actual cost of completion of all Improvements shall be retained by the Town as collateral during such one (1) year period as a guaranty of perfonnance of any work required pursuant to the above described warranty. 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. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Subdivider, if sufficient finds are not held by the Town, in accordance with Slection 16.24.100, for a period of one year from the date of completion of the corrected work. 7. Engineering Certification. Upon completion of portions of the improvements, Subdivider will cause his engineers (who shall be registered in the State of Colorado) to certify in writing that the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results and other supporting documentation shall be submitted with the cert ification. 8. Subdivision and Inspection Fees. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been Dry Creek Subdivision Improvement Agreement. paid in full. Additional fees, if any, shall be paid by the Subdivider within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such additional fees exceed five percent (5%) of construction costs. 9. No Obligation of Town to Complete Improvements. 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 or to issue permits for development within the Subdivision. 10. Non-Liability of Town, Indemnification. 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. To the extent permitted by law, 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, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider, as hereinbefore stated. Furthermore, the 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. 11. Rights of Town in Event of Default. 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 fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A. All such costs paid by the Town for such Improvements, together with all costs of personnel, equipment and.othermatters expended by the Town in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider based upon the underlying responsibility for the Improvement in question. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, shall be a lien on any property in the Subdivision owned by Subdivider at the time of default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the 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 the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. Dry Creek Subdivision Improvement Agreement, 4 12. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Subdivider under this Agreement have been satisfied. 13. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 14. Covenants Running with the Land. 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 hereto have executed this Agreement as of the date first above written. TOWN OF AVON, a Colorado Municipal Corporation i, ATTEST: - - P. By: _91erk Mayor To Nn APPROVED AS TO FORM: r% T wn Attorney Trenton Hubbard, dba THD Colorado, Inc. 11 Ey: V~S► Subdivider ►11 D Dry Creek Subdivision Improvement Agreement. EXHIBIT A Drv Creek Development Subdivision Improvements Agreement APPROVED PLANS: Dry Creek PUD Construction Drawings Wildridge, Town of Avon, Colorado September, 2005 Sheets l through 8 Release Date: December 1, 2005 Prepared by: Marcin Engineering LLC P.O. Box 1062 Avon Colorado 81620 Dry Creek Subdivision Improvement Agreement, EXHIBIT B Dry Creek Development Subdivision Improvements Agreement PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE Mobilization & Site Prep $ 10,250 Road Cut and Repair . 6,000 Water Main and Service Installation 21,500 Sewer Main and Service Installation 17,250 Shallow Utility Service Installation 11,250 (Natural Gas, Cable TV, Telephone & Electric) Revegetation 3,500 Construction Observation, Testing & Certifications 7,000 Contingencies @ 15% 11,500 Total Estimated Cost $ 88,250 Security Required per Subdivision Improvements Agreement (110%) $ 97,075 Cost Estimate and Security Amount Based December 2, 2005 and November 30, 2005: From: November 28, 2005 Quintana Construction P.O. Box 4316 Eagle, Colorado 81631-4316 on Proposals dated November 28, 2005, December 2, 2005 Adams Excavating & Trucking, Inc. 1370 Spring Creek Road Gypsum, CO 81637 November 30, 2005 Kemp & Company, Inc. P.O. Box 189 Edwards, CO 81632 To: THD Colorado Inc. P.O. Box 8338 Avon, Colorado 81620 Project Reference: Dry Creek PUD A Resubdivision of Lot 44, Block 2, Wildridge Town of Avon, Eagle County, Colorado Project Engineers: Marcin Engineers, LLC P.O. Box 1062 Avon, CO 81620 Dry Creek Subdivision Improvement Agreement. 7 - 200602246 1yIpIAIIryI1Iy~ 1 10y~1/21/2006 FIIIII•IIIIIMnuII1NIIluIIIIYI~II1111~uINI11IX DRY CREEK PUD SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this 13 day of~-Os J~ 2005, is by and among Trenton Hubbard, dba THD Colorado, Inc. ("Subdivider"), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town"). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Dry Creek PUD, Lots I - 3, consisting of 1.58 acres, a resubdivision of Lot 44, Block 2, Wildridge Subdivision, Town of Avon, Eagle County, Colorado (the "Subdivision"), wires + f 't n " 7'0: I i"~ e. -P A-reenl P- f (cc (Tree? l 1 "l l It t A ~tt~~ to enter into u ~~►b diti..on pr. ,e-P .b. - ° -er.t he Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code"); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain public improvements ("Improvements") as depicted on the plans approved by the Town for the Dry Creek PUD, dated December 1, 2005, ("Approved Plans") and as set forth in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the Subdivider is responsible for the completion of the public improvements ("Improvements"). AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. 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 Dry Creek PUD ("Subdivision'') shali be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 2. Completion of Work. (a) Performance. 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 assigned as set forth as depicted on the Approved Plans and as set forth in Exhibit A. Subdivider further agrees that he will be responsible for all costs of Improvements as assigned. Said work shall be performed in accordance with the Approved Plans. Subdivider agrees to commence construction of Improvements prior to the issuance of a building permit for any lot in the subdivision and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any lot in the Subdivision. Commencement of construction of Improvements r Dry Creek Subdivision Improvement Agreement. shall be deemed to mean the award and execution of contracts for the construction of the Improvements as depicted on Exhibit A. (b) Inspection Procedures. (1) All work shall be done under the inspection procedures and standards established by the Town and/or Holy Cross Electric, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comcast ("Utilities"), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Improvements by the Town and/or the Utilities. Such inspections by the Town and/or Utilities shall not relieve the Subdivider or his agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. (2) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Subdivider and subject to the limitations set forth in paragraph 8 below. (3) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Improvements are not in compliance with the Approved Plans, it shall give written notice of such non-compliance ("Notice of Non-Compliance") to the Subdivider. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications. The Notice of Non- Compliance must be provided to the Subdivider within two (2) working days of the date of the inspection. Security for Completion of Improvements. (a) Security. To secure completion of the Improvements, the Subdivider hereby agrees to SeCUT rr ~ re respective Obligatti iiiunder ~illS :11 -egTeGllleilr w1, collateral in accordance with Section 16.24. 100 of the Code. Collateral shall be one or a combination of the following: cash, its equivalent or irrevocable letter of credit ("Collateral"). 4. Subdivider Improvements. (a) Security for Completion of Public Improvements. Subdivider shall deliver to the Town an irrevocable letter of credit issued by a reputable financial institution or other Collateral consistent with Section 16.24. 100 of the Code in an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of the Improvements as set forth on Exhibit B. The irrevocable letter of credit or other Collateral shall be delivered to the Town prior to, or concurrently with, recordation of the Final Plat for the Subdivision. Dry Creek Subdivision Improvement Agreement, (b) Progress yments on Sub divider's Improvements. Upon completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7 below verifying that itemized portions of the Improvements have been completed, the amount of Collateral may be reduced periodically provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred and ten percent (110%) of the estimated costs of completion of all remaining Improvements. Upon completion of all work related to the Improvements and the Town's and Utility's acceptance of the Improvements, the entire amount of remaining collateral less those amounts described in paragraph 6 below, shall be promptly released. (c) Default by Subdivider. In the event of a default in whole or in part by Subdivider, the Town shall be authorized to draw on the letter of credit or other collateral for the purpose of undertaking completion or remediation work on the Subdivider's Improvements after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider to cure the default. The Town shall be entitled to draw on such letter of credit or other collateral by Resolution of the Town Council stating (i) that Subdivider is in default, and (ii) the funds are required in order to complete or correct work on the Subdivider's Improvements. 6. Warranty Period. The Improvements shall be warranted to be free from defects in workmanship or quality for a period of one (1) year after acceptance of all the work by the Town. In the event of any such defect, the Town may require Subdivider to correct the defect in material or workmanship. Ten percent (10%) of the total actual cost of completion of all Improvements shall be retained by the Town as collateral during such one (1) year period as a guaranty of performance of any work required pursuant to the above described warranty. 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. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Subdivider, if sufficient funds are not held by the Town, in accordance with Section 16.24.100, for a period of one year from the date of completion of the corrected work. 7. Engineering Certification. Upon completion of portions of the Improvements, Subdivider will cause his engineers (who shall be registered in the State of Colorado) to certify in writing that the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results and other supporting documentation shall be submitted with the certification. 8. Subdivision and Inspection Fees. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been Dry Creek Subdivision Improvement Agreement. paid in frill. Additional fees, if any, shall be paid by the Subdivider within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out-of-pocket) costs of the Town plus an administrative fee in the amount of fifteen (15%) percent of the direct costs, but in no event will the total amount of such additional fees exceed five percent (5%) of construction costs. 9. No Obligation of Town to Complete Improvements. 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 or to issue permits for development within the Subdivision. 10. Non-Liability of Town; Indemnification. 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. To the extent permitted by law, 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, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider, as hereinbefore stated. Furthermore, the 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. 11. Rights of Town in Event of Default. 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 fails to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements specified on Exhibit A. All such costs paid by the Town for such Improvements, together with all costs of personnel, equiplr.cnt and other matters expended by th,-- Town in furtherance of the construction responsibilities of Subdivider, shall be paid by Subdivider based upon the underlying responsibility for the Improvement in question. Any such costs relating to the Subdivider Improvements, which have not been reimbursed by Subdivider, shall be a lien on any property in the Subdivision owned by Subdivider at the tune of default. Said lien may be foreclosed in the same manner as a mortgage and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. Without limiting the foregoing, the 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 the Town, the Town shall be awarded its court costs and reasonable attorneys' fees. Dry Creek Subdivision Improvement Agreement, 4 12. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Subdivider under this Agreement have been satisfied. 13. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 14. Covenants Running with the Land. 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 hereto have executed this Agreement as of the date first above written. ATTEST: ` r To n lerk ,r APPROVED AS TO FORM: T wn Attorney TOWN OF AVON, a Colorado Municipal Corporation By: Mayor Trenton Hubbard, dba THD Colorado, Inc. By: ►2~,+ Subdivider -T) 1D Dry Creek Subdivision Improvement Agreement, EXHIBIT A Dry Creek Development Subdivision Improvements Agreement APPROVED PLANS: Dry Creek PUD Construction Drawings Wildridge, Town of Avon, Colorado September, 2005 Sheets 1 through 8 Release Date: December 1, 2005 Prepared by: Marcin Engineering LLC P.O. Box 1062 Avon Colorado 81620 Dry Creek Subdivision Improvement Agreement, FYATRTT R Dry Creek Development Subdivision Improvements Agreement PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE Mobilization & Site Prep Road Cut and Repair Water Main and Service Installation Sewer Main and Service Installation Shallow Utility Service Installation (Natural Gas, Cable TV, Telephone & Electric) Revegetation Construction Observation, Testing & Certifications Contingencies @ 15% Total Estimated Cost $ 10,250 6,000 21,500 17,250 11,250 3,500 7,000 11,500 S 88,250 Security Required per Subdivision Improvements Agreement (110%) $ 97,075 Cost Estimate and Security Amount Based December 2, 2005 and November 30, 2005: From: November 28, 2005 Quintana Construction P.O. Box 4316 Eagle, Colorado 81631-4316 on Proposals dated November 28, 2005, December 2, 2005 Adams Excavating & Trucking, Inc. 1370 Spring Creek Road Gypsum, CO 81637 November 30, 2005 Kemp & Company, Inc. P.O. Box 189 Edwards, CO 81632 To: THD Colorado Inc. P.O. Box 8338 Avon, Colorado 81620 Project Reference: Dry Creek PUD A Resubdivision of Lot 44, Block 2, Wildridge Town of Avon, Eagle County, Colorado Project Engineers: Marcin Engineers, LLC P.O. Box 1062 Avon, CO 81620 Dry Creek Subdivision Improvement Agreement, 7