TC Res. No. 1997-45TOWN OF AVON
RESOLUTION NO. 97-45
Series of 1997
A RESOLUTION APPROVING AND ACCEPTING THE WATER MAIN
EXTENSION INSTALLED AND CONSTRUCTED IN ACCORDANCE WITH
COST RECOVERY AGREEMENT FOR BROOKSIDE PARK P.U.D. AND
ESTABLISHING WARRANTY PERIOD FOR SAID WATER MAIN EXTENSION
WHEREAS, the Town of Avon and Riverview Park Associates, Inc: entered into a
COST RECOVERY AGREEMENT in connection with the approval of Brookside Park
U. D., Lot 1, Eaglewood Subdivision, Town of Avon, Eagle County, Colorado; and
WHEREAS, said Agreement established certain water main extensions to be constructed
in conjunction with said P.U.D.; and
WHEREAS, the water main extension was substantially complete as of August 1, 1997;
and
WHEREAS, said Agreement established.requirements for the provision of security
deposits to assure completion of the, improvements in accordance with the'Agreemeint
and to assure correction of warranty items identified during the specified warranty
period.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, that:
1. The water main extension required to be constructed in conjunction with
Brookside Park P.U.D., was substantially complete as-'of August 1, 1997, in accordance
with the COST RECOVERY AGREEMENT and the stipulated one year warranty period
for said water main extension shall extend to August 1, 1998.
2. Successful completion of the warranty period and subsequent release of security
.deposit shall be contingent upon receipt of
a. conveyance of all main lines and appurtenances to the Town of Avon, free
and clear of all liens and encumbrances;
b. evidence of satisfactory completion of corrective items identified in July
17, 1997, letter from Fred S. Haslee, Eagle River Water & Sanitation
District; and
c. statement of certified costs of the main lines.
ADOPTED THIS 12th DAY OF August 1997,
TOWN COUNCIL
TOWN OF AVON, COLORADO
~-liav yc~dy Yoder, Mayor Protem
ATTEST:
ti
Patty Lambert, C
Town Clerk
ESCROW AGREEMENT
This agreement is entered into this 30th day of August, 1997, by
and between Riverview Park Associates, Inc., a Colorado corporation
("Developer"), the Town of Avon, a Colorado municipality (the "Town"),
acid FirstBank of Avon ("Bank").
A. Developer has entered into a Subdivision Improvements
Agreement ("SIA") with Town concerning the construction of
improvements by or on behalf of Developer on real property
located within the boundaries of Town and described in more
detail on Exhibit A attached hereto.
B. Under the terms of the SIA, Developer is required to obtain a
letter of credit or other collateral acceptable to town that
will guaranty the completion of construction of the improve-
ments. The letter of credit or other collateral is required
to be in an amount equal to 125 percent of the estimated
amount of the reimbursable cost's described in the SIA.
C. Developer, in place of a letter of credit, has agreed to
establish an escrow deposit account to be maintained at
Bank for the benefit of Town. Bank will act as the escrow
agent under the terms of this agreement.
D. Upon execution of this agreement by the parties and
confirmation of the amount of the deposit in the-escrow
account, Town is willing to accept this agreement in lieu
of a letter of credit under the SIA.
Accordingly, in consideration of the covenants and undertakings to
be performed under the terms of this agreement, the parties hereby agree
as follows:
1. Creation of Escrow Account. Developer has deposited the sum
of $18,170.00 with Bank to be maintained in deposit account
number 3536835864 (the "escrow account"). Bank will be
designated as escrow agent for the escrow account and will
have authority to disburse funds from the escrow account in
accordance with the terms of this agreement and as supplement-
ed by the terms of the SIA. All funds in the escrow account
shall earn interest at the.rate paid by Bank for a savings
account of a corresponding amount and maturity.
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2. Escrow Account Disbursements. Bank shall follow the
instructions and conditions described in this section with
respect to the maintenance and disbursement of funds from
the escrow account.
2.1 Bank will retain a copy of the SIA in its files and
will not take any action with respect to the deposit
account funds that is in conflict with the provisions
of the STA.
2.2 Upon.receipt of a written statement and request from
Town asserting that Developer has failed to perform the
completion of the improvements in accordance with the
SIA, Bank shall disburse to Town a portion or all of the
-funds in the escrow account in the amount requested by Town
in writing. Bank shall be required to notify Developer
10 days prior to any such disbursement, and Bank shall be
entitled to rely on the truth and accuracy of the written
statement and request from Town in all respects.
2.3 After Bank receives written confirmation from Town that all
or a portion of construction of the improvements has been
completed (including the date of completion) for which
the Town approves the release of funds. Bank may disburse
all funds in the escrow account to Developer except for'an
amount equal to 25 percent of the total actual cost of
completion of the improvements as certified by Developer
and approved by Town.
2.4 The remaining funds shall be held by Bank in the escrow
account for a period of one year from the date of completion.
'If Bank receives a written demand from Town during this
period of time relating to warranty claims under the SIA,
Bank shall disburse such sums as requested in writing by
Town up to the amount held on deposit in the escrow account.
2.5 In the event Developer is required to perform corrective
work under'Developer's warranty, Bank shall withhold or
limit disbursements from the escrow account for a
period of one year from the date of completion of the
corrective work in order to assure that funds remain in
the escrow account in an account at least equal to 125
percent of the cost of the corrective work. This amount
may be estimated by Town under the terms of the SIA, and
such amount shall be certified to Bank in writing.
2.6 At the end of the one year period described in Section 2.4
(provided no corrective work has been commenced-by
Developer for warranty claims), or at the end of the one
year period described in Section 2.5, Bank will request
written certification from Town that no warranty claims
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remain with respect to the initial work or any corrective
work. Upon receipt of such certification,, Bank may
disburse all remaining funds in the escrow account to
Developer.
3, Interest. Notwithstanding any other provisions of this
agreement, interest accruing upon escrow account funds shall,
at all times be held by Bank for the benefit of Developer
and shall be disbursed to Developer upon request.
4. Account Maintenance Rules. Other than as provided in this
agreement, the escrow account will be governed by and
maintained in accordance with Bank's standard deposit
account agreement, rules and regulations.
5. Term. This agreement shall terminate upon agreement of the
parties or on August 30, 1998, whichever event
occurs first. All funds remaining on balance in the escrow
account on the date of termination shall be disbursed in the
manner described in this agreement or in any other manner
that may be agreed upon by the parties.
6. Limited Role of Bank. Bank shall act under this agreement
only as an escrow,agent. By agreeing to act in this capacity,
Bank makes no representations or recommendations concerning
the nature or quality of the improvements to be constructed
under the kA or the suitability of Developer or any other
person or entity to perform such work.
7. Expenses and Fees. Developer shall pay a fee to Bank for its
services as the escrow agent in accordance with the fee
schedule attached hereto-as Exhibit B. Developer will pay
all costs and expenses incurred by Bank in-connection with
Bank's review of the SIA and the administration of the escrow
account as well as the preparation of this agreement and any
supplementary documents.
8. Indemnification. Developer agrees to indemnify and hold
bank harmless from and against all liabilities, claims,
damages, costs, and expenses arising out of the-administration
of its agreement and the escrow account. This provision shall
be construed in this most comprehensive sense and-shall
include any attorney's fees and costs incurred by Bank
relating to this agreement or the escrow account.
9. Good Faith Actions. Bank shall not be liable for any act it
may do or omit to do under this agreement while acting in
good faith and in the exercise of its judgement or upon the
advice of its attorneys.
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10. Orders of Court. Banks_is hereby expressly authorized to
comply with and obey any-and all orders, judgements, or
decrees of any court"relating to this agreement. In the
event Bank complies with or obeys such judicial process,
it shall not be liable to any of the parties hereto or to any
other person, firm or entity by reason of such compliance,
notwithstanding that any such order, judgement or decree may
be subsequently reversed, modified, annulled, set aside or
vacated, or found to be entered without jurisdiction.
11. Miscellaneous
11.1 All notices shall be in writing and, shall be deemed
to have been given when presented personally, sent by
facsimile transmission, or when deposited in the United
States mail, certified mail, return receipt requested;
addressed as follows (or as contained in any amendments
hereto):
Bank: FirstBank of Avon
Attn: Terry L. Halverson
FirstBank of Avon
PO Drawer 5270
Avon, CO 81620
Facsimile No. 970-r949-6073
Developer: ~w4wfv- F
EIk ~ -
K%1 cy± , I, L9ILYA dt~ l~_2
D V
Town: Town of Avon
PO BOX 975
Avon, CO 81620
With,copies to: John W. Dunn, Esq.
Dunn, Abplanalp be Christensen, P.C.
10.8 S. Frontage Rd. W., #300
Vail, CO 81657
Facsimile No. 970-476-4765
11.2 This agreement embodies all written and oral negotiations
between the parties and may not be amended except in
writing executed by all parties.
11.3 This agreement has been executed in several counterparts,
any one of'which may be deemed an original. Signature
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pages bearing facsimile signatures shall be received
in lieu of original signatures, and such copies taken
together shall be deemed to be a'full and complete
agreement between the parties.
11.4 This agreement shall be governed by~construed in
accordance with the laws of the State of'Colorado.
11.5 The terms of this agreement will bind and benefit the
heirs, legal representatives, successors and assigns
of the parties.
11.6 The invalidity or unenforceability of any one or more
provisions of this agreement shall in no way affect
any other provisions.
DEVELOPER:
FirstBank of Avon, a Colorado
banking co oration
By: -
Title
TOWN:
By:--
Title.• mayor
By:
Title:
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EMIBIT A
The real property that is the subject of this escrow agreement is
legally described as follows:
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EXHIBIT B
The fees and expenses to be imposed by Bank in accordance with
Section 7 of this agreement are as follows:
Bank will impose no fees or expenses during the initial
term of this agreement.
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