TC Res. No. 1993-21TOWN OF AVON
RESOLUTION NO. 93-21
SERIES OF 1993
A RESOLUTION APPROVING A FINAL PLAT AND SUBDIVISION
IMPROVEMENTS AGREEMENT FOR MOUNTAIN STAR, A
RESUBDIVISION OF REPLAT NUMBER 1 OF THE FINAL
SUBDIVISION PLAT, WILDWOOD SECTION 36, TOWNSHIP
4 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN,
TOWN OF AVON, EAGLE COUNTY, COLORADO
WHEREAS, Mountain Star Limited Liability Corporation has submitted a Final
Plat and Subdivision Improvements Agreement for Mountain Star, a Resubdivision of
Replat Number 1 of the final Subdivision Plat Wildwood, Town of Avon, Eagle
County, Colorado; and
WHEREAS, the Finial Plat and Subdivision Improvements Agreement have been
reviewed by the Town Staff and were found to be substantially in accord with the
approved Preliminary Plat and Subdivision Regulations for the Town of Avon.
NOW, THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Avon,
that the Final Plat for Mountain Star, A Resubdivision of Replat Number 1 of the Final
Subdivision Plat Wildwood, Town of Avon, Eagle County, Colorado is hereby approved
subject to:
1. Town Attorney review of executed plat and related documents prior
to recording of Final Plat.
2. Town Engineer review and approval of technical corrections to the
Final Plat and review and approval of all final construction plans and
specifications.
ADOPTED this 27th day of April, 1993.
TOWN COUNCIL
TOWN OF AVON, COLORADO
Albert J. Re7 ds, r
ATTEST:
w /
AMENDED AND RESTATED
SUBDIVISION IMPROVEMENTS AGREEMENT
THIS AGREEMENT, made and entered into this a-74day of
t''n , 1993, by and between Mountain Star Limited
Liabil ty Company, a Wyoming limited liability company,
hereinafter referred to as "Subdivider," and the Town of Avon, a
Colorado Municipality, by and through its Council, hereinafter
referred to as the "Town."
WITNESSETH:
WHEREAS, The Town entered into a certain Subdivision
Improvements Agreement Wildwood Subdivision dated July 19, 1979,
between Benchmark at Beaver creek ("Benchmark") and the Town, and
recorded on July 12, 1979, in Book 288 at Page 128, and a certain
Agreement Regarding Improvement of Subdivision dated March 5,
1982 with Section 36, Inc., a Colorado Corporation ("Section
36"), recorded March 5, 1982 in Book 337 at Page 365, each in the
real property records of Eagle County, Colorado (collectively,
the "Original Agreements"), relating to improvements originally
encompassing real property which is currently proposed as the
site for Mountain Star, a subdivision located in the Town of
Avon, Eagle County, Colorado (the "Subdivision").
WHEREAS, Subdivider (as successor in interest to Benchmark
and Section 36), in connection with the approval of the final
plat for the Subdivision, desires to enter into an amended and
Restated Subdivision Improvements Agreement with the Town
amending the Original Agreements and restating them in their
entirety in order to establish the responsibilities for certain
public improvements to the Subdivision as provided for by Section
16.24.100 of the Avon Municipal Code, as amended; and
WHEREAS, pursuant to said Code, the Town desires to amend
and restate the Original Agreement in order to make reasonable
provision for completion of certain public improvements
("Improvements") set forth in Exhibit A attached hereto and by
reference incorporated herein; and
WHEREAS, Subdivider has agreed to be responsible for the
performance and completion of the Improvements.
NOW, THEREFORE, in consideration of the following mutual
covenants, conditions and promises, the parties hereby agree as
follows:
1. The Original Agreement is hereby amended and restated in
its entirety.
2. Subdivider agrees to furnish all equipment, labor and
material necessary to perform and complete, in a good and
workmanlike manner, all improvements and work incidental thereto
as set forth in Exhibit A. Subdivider further agrees that it
will be responsible for all costs related to said work. All said
work shall be performed substantially in accordance with the
construction specifications and drawings as submitted to and
approved by the Town prior to the commencement of construction of
Improvements. All work shall be done under the inspection
procedures and standards established by the Town, shall be
subject to the reasonable satisfaction of the Town and shall not
be deemed complete until the reasonable approval and acceptance
of the Improvements by the Town.
3. The Town agrees that upon compliance with all other
conditions of approval,and subject to the terms and conditions of
this Agreement, the Final Plat of the Subdivision shall be
promptly filed for record with the Office of the Eagle County
Clerk and Recorder.
4. The parties acknowledge that the Subdivision may be
developed in two (2) separate phases, the first phase consisting
of 73 lots and the second phase consisting of 15 lots. Exhibit A
shall designate those improvements that are related to each
Phase. No lot in the 15 lot Phase shall be closed, or the lien
released, until all improvements related to the first Phase shall
have been completed. Subdivider agrees that it will not close on
the sale of any lot within a particular phase of the Subdivision
until all Improvements have been completed as related to such
phase, excluding those items listed below, and the particular lot
being sold if encumbered pursuant to Section 5 below has been
released by the Town as provided in Section 7 below. The
following items need not be completed prior to the closing of a
sale of any of the Subdivision lots but shall be completed by
August 1, 1996:
(a) All Subdivision roads will be completed to final
grade but no paving, finishing or landscaping need
be completed prior to the sale of a Subdivision
lot. Paving, finishing and landscaping will be
completed on or before August 1, 1996.
(b) The Improvements relating to Buck Creek Road need
not be completed provided they are completed prior
to the closing of the sale of the Fiftieth (50th)
lot within the Subdivision. No more than forty
nine (49) lot sales may be closed prior to the
completion of said Improvements.
2
5. To secure completion of the Improvements, Subdivider
hereby agrees to secure its obligations under this Agreement as
follows:
(a) With a first priority lien on real property within
the Subdivision the aggregate value of which
equals one hundred and ten percent (110%) of the
total estimated costs for completion of the
Improvements, excluding costs related to
Improvements to Buck Creek Road, as outlined on
Exhibit A. A list of the lots with their
respective agreed upon values is attached as
Exhibit B. Subdivider may substitute the
collateral subject to such lien with other
security (acceptable to Town) of equal or greater
value. Said lien shall be evidenced by
Subdivider's first lien deed of trust or mortgage
in form acceptable to Town and insured as a first
lien by a title insurance company acceptable to
Town (all costs of title insurance shall be paid
by Subdivider).
(b) The following Plat Restriction shall be printed on
the Final Plat:
No lot or parcel in this Subdivision may be sold,
conveyed or leased until the requirements of the
Amended and Restated Subdivision Improvement
Agreement dated , 1993, with
respect to such lot or parcel have been met, and
there has been executed a written and acknowledged
notice from the Town of Avon, acting through its
Town Manager, (or waiver of this Plat Restriction
by written and acknowledged Notice) acknowledging
fulfillment and compliance of the requirements of
said Amended and Restated Subdivision Improvement
Agreement for said lot or parcel. Any such sale,
conveyance or lease made in violation hereof shall
be null and void. This Restriction as to a
particular lot or parcel shall be deemed
terminated upon recordation of any of the above
described Notices. Nothing herein shall restrict
the sale or transfer of the entire Subdivision
that is made subject to the terms of the said
Amended and Restated Subdivision Improvement
Agreement.
6. In addition to the security provided in Section 5 above,
Subdivider agrees to provide to the Town a loan commitment (in
3
form and substance acceptable to Town) from National FicTeA't;
Life Insurance company, a Missouri corporation, or its affiliate or
subsidiary, in an amount equal to the estimated costs for
completing Improvements to Buck Creek Road as reasonably approved
by the Town. Loan disbursements shall be made to Subdivider upon
the completion of itemized Improvements for which cost estimates
have been set forth in Exhibit C attached hereto and incorporated
herein, upon the written request of Subdivider and written
approval of the Town or its designee; provided, however, that in
no event shall any such progress payment cause the remaining sum
to be available in the loan commitment for subsequent
disbursements.to be less than 100% of the costs to complete all
remaining improvements as estimated at the time of each progress
payment. Town shall be a third party beneficiary of said loan
commitment and no modifications or changes shall be made to said
loan commitment without the written approval of Town.
7. If the Subdivider is not in default of any of the terms
of this Agreement at the time a request is made for any release
as provided herein, the real property securing the obligations
under this Agreement as discussed in Section 4 above shall be
released by the Town as follows:
(a) Upon completion of seventy-five percent (75%) of
the Improvements relating to a particular phase of
the Subdivision, including those improvements
noted in Section 4(a) above, and all costs
relating to such seventy-five percent (75%) of the
Improvements are paid, as evidenced by proof
satisfactory to the Town, the Town hereby agrees
to release liens on lots representing seventy five
(75% ) of the total value secured within the
applicable phase of the Subdivision.
(b) Upon completion of all Improvements relating to a
particular phase of the Subdivision, including
those Improvements noted in Section 4(a) above,
and upon payment of one-hundred percent (100%) of
the costs of such Improvements, as evidenced by
proof satisfactory to the Town, and further upon
either (i) the payment to the Escrow Agent of the
amount set forth on Exhibit D attached hereto and
incorporated herein, or (ii) the furnishing of an
irrevocable letter of credit in the appropriate
amount set forth on Exhibit D, which letter of
credit or escrow, as the case may be, shall secure
the continuing obligations of Subdivider under
this Agreement, the Town agrees to release one
hundred percent (100%) of the Applicable phase of
4
the Subdivision.
8. Subdivider shall at all times prior to acceptance of
any publicly dedicated roadways within the Subdivision, and
including Buck Creek Road, by the Town give good and adequate
warning to the traveling public of each and every dangerous
condition existent in said roads and shall protect the traveling
public from such defective or dangerous conditions. Until the
completion of all the Improvements herein agreed to be
constructed, roads not accepted as improved shall be under the
charge and control of Subdivider for the purpose of this
agreement; and Subdivider may close all or a portion of any
street or road within the Subdivision whenever it is necessary to
protect the traveling public during the construction or
installation of the Improvements herein agreed to be made.
9. Upon completion of portions of the Improvements,
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
weekly, during construction, with the certification. The Town
may provide periodic inspections as it deems necessary to assure
conformance with approved plans and specifications.
10. a) Fees in accordance with the Town's Subdivision
Regulations for the review of Preliminary Plans
and Final Plats have been paid in full.
b) Additional fees shall be paid to the Town by
Subdivider, within twenty (20) days after delivery
of written invoice for such fees, to cover the
cost of inspections by the town. The fees will be
based on direct (out-of-pocket) costs of the Town,
but in no event will the total amount of such
additional fees exceed two percent of construction
costs.
11. Subdivider agrees that in the event it shall fail to
perform its obligations as set forth herein, the Town shall be
under no obligation to complete or perform any of the said
Improvements. No one, individually or otherwise, other than the
parties hereto, shall acquire, as a result of this Agreement, any
rights, claims or obligations from or against the Town, its
agents, employees or officers. Actions by the Town against
Subdivider to enforce any provision of this Agreement shall be at
the sole discretion of the Town. No third parties shall have any
5
rights to require any action by the Town pursuant to this Agree-
ment; and this Agreement shall not create a liability on the part
of or be a cause of action against the Town, for any personal or
property damage that may result to any third parties from the
failure of the Subdivider to complete the improvements herein
specified.
12. The Town shall not, nor shall any officer, agent, or
employee thereof, be liable or responsible for any accident, loss
or damage related to the work specified in this Agreement, nor
shall the Town, nor any officer, agent, or employee thereof, be
liable for any persons or property injured by reason of the
nature of said work. Subdivider hereby agrees to indemnify and
hold harmless the Town, and any of its officers, agents, and
employees against any losses, claims, damages or liabilities to
which the town or any of its officers, agents, or employees may
become subject to, because of any losses, claims, damages or
liabilities (or actions in respect thereof) that arise out of, or
are based upon, any obligation of Subdivider as hereinbefore
stated, which arise prior to the expiration of all warranty
periods set forth in Section 14 below. Furthermore, Subdivider
shall reimburse the Town for any and all legal or other expenses
reasonably incurred by the Town in connection with investigating
or defending any such loss or claim.
13. The Improvements shall be warranted to be free from
defect in workmanship or quality for a period of one (1) year
after acceptance of all work by the Town. In the event of any
such defect, the Town may require Subdivider to correct the
defect in material or workmanship. The amounts discussed under
Section 7 (b) above for completion of all Improvements shall be
retained in escrow in a separate interest bearing account or
accounts during such one (1) year period as a Guaranty of
performance of any work required pursuant to the above-described
warranty or, alternatively, Subdivider shall, at its option,
provide an irrevocable letter of credit to the Town in a form
approved by the Town, which approval shall not be unreasonably
withheld. In the event an escrow is used, an escrow agreement
satisfactory to the Town shall be entered into. In the event any
corrective work is performed during the one year warranty period
then the warranty on said corrected work shall be extended for
one year from the date on which it is completed. Subdivider
agrees to allow 110% of the cost of any significant corrective
work, as estimated and approved by the Town, to be retained in
escrow, or alternatively, at Subdivider's option, to remain
subject to the abovementioned letter of credit, for a period of
one year from the date of completion of the corrected work.
Interest on the balance in said escrow account shall accrue to
the benefit of Subdivider, provided that the obligations set
6
forth in this Agreement are satisfied by Subdivider.
14. In the event that Subdivider defaults in whole or in
part in the performance of this Subdivision Improvements
Agreement, and after the expiration of thirty (30) days after
having given written notice to Subdivider of such default during
which period of time the Subdivider failed to correct said
default, the Town may, at its sole discretion, proceed with the
construction or completion of the improvements specified in this
agreement. All such costs paid by Town for such improvements,
together with all costs of personnel, equipment and other matters
expended by Town in furtherance of the construction
responsibilities of Subdivider, shall be paid by Subdivider. Any
such costs which have not been reimbursed by Subdivider shall be
a lien on any property in the Subdivision owned by Subdivider at
the time of default. Said lien may be foreclosed in the same
manner as a mortgage and shall entitle Town to add its costs and
attorneys' fees in such foreclosure or other collection. Without
limiting the foregoing, Town may bring a mandatory injunction
action against Subdivider to require installation and
construction of said improvements, if not constructed within the
time limits described in this Agreement. If any such action is
brought by Town, Town shall be awarded its court costs and
attorneys' fees.
15. In addition to the other Improvements described in this
Agreement, Subdivider hereby agrees as follows:
(a) Subdivider agrees to pay all costs, up to a
maximum of $300,000.00, for certain asphalting and
related work to Nottingham, Metcalf and Wildridge
Roads as outlined on Exhibit F attached hereto and
incorporated herein by reference. All work related
to such roads will be managed and implemented by
the Town, and Subdivider's obligation under this
Section is limited solely to the one-time payment
of costs as discussed herein. The Town agrees to
employ a competitive bidding process in awarding
the work. The project budget based on successful
bid amount plus other estimated costs, or
$300,000.00, whichever is less, shall be paid to
the Town by Subdivider within ten (10) days
following notice from the Town of the receipt of a
successful bid.
(b) Subdivider agrees to pay to the Town certain sums
related to a proposed public works facility,
vehicle garage and material storage (the
"Facility"). Prior to or contemporaneously with
7
final Plat approval of the Subdivision by the
Town, subdivider, Subdivider agrees to pay to the
Town $25,000.00 to be applied toward initial costs
of developing the Facility. All work related to
the Facility will be managed and implemented by
the Town, and Subdivider's obligation under this
Section is limited solely to the one-time payment
of costs as discussed herein. The Town agrees to
employ a competitive bidding process in awarding
the work. Within ten (10) days following notice
from the Town of the receipt of a successful bid,
subdivider agrees to pay to the Town the lessor of
the sum of $150,000.00 or the project budget based
on successful bid amount plus other estimated
costs, in addition to the $25,000.00 discussed
above.
16. It is understood that the construction of Buck Creek
Road as access to the Subdivision is conditioned upon the
Subdivider's effecting a land trade with the United States Forest
Service, obtaining an easement for Buck Creek Road or maintaining
in effect a special use permit for Buck Creek Road. Buck Creek
Road shall accordingly be constructed in accordance with any
requirements of the Forest Service pertaining thereto. In the
event of the failure of all of the aforesaid conditions, this
Agreement shall be deemed to be of no further force and effect,
and an amended agreement shall be entered into by the parties
acknowledging that Wildwood Road shall be the sole access to the
Subdivision.
17. Developer agrees that, upon completion of the
construction of the hiking trail provided for in Tract C of the
Subdivision, it will grant an easement therefor to the Town.
18. This Agreement may be amended from time to time,
provided that such amendment be in writing and signed by all
parties hereto.
19. In the event of a lawsuit arising out of the terms of
this Agreement, the prevailing party shall be entitled to court
costs and reasonable attorney's fees.
20. This Agreement and the obligations hereof shall be
deemed to be covenants running with the land and shall be binding
on the successors and assigns of the parties hereto.
The parties have executed this Agreement as of the date
above written.
8
rrn r r i ••wi r•. i w i wwwp.~wi r w~. r . w mow- ww . w r wnm .rrnnnri rr~n nri vi n.rr i i• w~.w v+ww i ww
TOWN OF AVON, a Colorado
municipal corporation
By:
Mayor
MOUNTAIN 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:
Willks( J. i t, Jr.
General Partner
STATE OF COLORADO )
) as.
COUNTY OF EAGLE )
Subscribed and sworn to before me on this- at. day of
ct , 1993, by A-l rt S ey~olcl-C as.
Mayor, And r , as Town Clerk, of the
Town of Avon.
Witness my hand and official seal.
My Commission expires: -/d-93
(SEAL)
tary Public
9
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
Subscribed and sworn to before.me on this day of
Aj~ 1993,.by Willis.J. Wright, Jr.., General Partner
of WFS C mpany, Authorized-Agent of the Management Committee of
Mountain Star Limited Liability Company, a Wyoming limited
liability company.
Witness my hand and officirl al.
My Commission expire
(SEAL)
10
EXHIBIT A
to the
Amended and Restated
Subdivision Improvements Agreement
Estimated Infrastructure Costs
SUBDIVISION
Roads
Water System
Sewer System
Shallow Utilities
Trenching
Electrical
Gas
Telephone
Cable TV
Contingency
Engineering
Geotechnical
Surveying
Town Engineer
Project Engineer
Re-Vegetation
Other (S.I.A.)
SUBDIVISION TOTAL
BUCK CREEK
Road
Engineering
Surveying
Geotechnical
Town Engineer
Project Engineer
BUCK CREEK TOTAL
SUBDIVISION & BUCK CREEK TOTAL
PHASE 1
PHASE 2
TOTAL
2,089,751
575,000
2,664,751
2,476,100
244,500
2,720,600
1,817,300
248,600
2,065,900
616,600
100,000
716,600
660,000
190,000
850,000
339,000
81,000
420,000
94,500
31,500
126,000
40,000
10,000
50,000
174,000
26,000
200,000
20,000
10,000
30,000
200,000
200,000
50,000
20,000
70,000
50,000
50,000
267,500
267,500
475,000
475,000
9,369,751 1,536,600 10,906,351
3,832,335 3,832,335
100,000
100,000
20,000
20,000
50,000
50,000
30,000
30,000
4,032,335
0 4,032,335
13,402,086
1,536,600 14,938,686
Infra Costs Summary/3-3
EXHIBIT B
to the
Amended and Restated
Subdivision Improvements Agreement
Lots to be Subordinated
1
2
67
68
69
70
71
72
74
75
76
77
78
79
80
81
82
83
84
85
86
87
Total Construction Costs $10,906,351
110% of Costs $11,996,986
22 lots @a $550,000 $12,100,000
4/6/93
EXHIBrr C
to the
Amended and Restated
Subdivision Improvements Agreement
Buck Creek Road Costs
Road
Engineering
Surveying
Geotechnical
Town Engineer
Project Engineer
100,000
20,000
50,000
30.000
TOTAL BUCK CREEK ROAD COSTS
$3,832,335
200,000
$4,032,335
4/6/93
EXHIBIT D
to the
Amended and Restated
Subdivision Improvements Agreement
Retainage
Subdivision Roads (10%X2,664,751) $266,000
Water (10% X 2,720,600) 272,000
Buck Creek (10%'X (4,032,335) 403.000
TOTAL
$941,000
4/6/93
etr-Mountain
k
Eng►aneeritIg Ltd.
EXHIBIT
to the
Amended and Restated
Subdiv
ision Improvements
Agreement
PRELIMINARY OPINION
OF COST ESTIMATE
NOTTINGHAM LAKE/OVERLAY
PROJECT NO.
93051E
APPROX.
UNIT
TOTAL
ITEM DESCRIPTION
QUANT.
UNIT
COST1
COST
1. Mobilization
L. S .
36,000
2. Adjust Valve Boxes
15
each
50
750
3. Adjust Manholes
29
.each
200
5,800
4. Asphalt Overlay 4360 tons 40
5. Pavement Marking 92 gallons 95
Bub-Total
Design Engineering
(Contract Documents) 3%
Construction Management 3%
Materials Testing 2%
Sub-Total
Contingency2 15%
Total Estimated Cost
174,400
8,740
$225,690
6,770
6,770
4.500
$243,730
36,560
$28~ Oo
1 - Unit prices are based upon Avon Streetscape Project
2 - Contingency to cover raising guardrail, fillet curves,
driveway adjustments, etc.
3 - Revised 2/9/92 to $40.00/ton asphalt
Box No. 978 a Avon, Colorado 81620 • 949-5072 Denver 893-1531
1420 Vance Street 9 Lakewood, Colorado 80215 • Phone: 232-0158