HomeMy WebLinkAboutAGREEMENT Improvement Coyote Run Subdivision 2024-06-27RECEPTION #20240026789, 7/1/2024 3:53:15 PM,
1 of 9, $53.00
Tina Harris, Clerk & Recorder, Larimer County, CO
TOWN ()l ESTES BTO^
TOWN OF ESTES PARK, COLORADO
IMPROVEMENT AGREEMENT
COYOTE RUN SUBDIVISION
This Agreement is made and entered into by and between the TOWN OF ESTES PARK,
COLORADO, a municipal corporation ("Town") and. CMS Planning & Development, Inc. a
Colorado corporation, ("Developer"), for the Coyote Run Subdivision ("Development").
The Developer has submitted and been approved for a Preliminary Plat and subsequently
submitted the Construction Plans, which collectively are referred to as the "Plan," incorporated
by this reference, for the public and private improvements needed to serve this Development, and
the Plan is acceptable to the Town. The Plan is on file with the Town.
In consideration of the payments, covenants, and agreements by the respective parties hereto, it
is mutually agreed as follows:
ARTICLE ONE
TOWN COMMITMENTS
1.01 This Agreement is subject to the terms and conditions of the Town Municipal Code and
the Estes Park Development Code (collectively. Code) and to the Town ofEstes Park Street
Design and Constmction Standards, as well as any applicable federal. state, or local standards
(collectively. Standards) as they are amended from time to Time.
l.Ol(a) Definitions.
Consmiction Acceptance is defined as acceptance by tlie Town That the improvements
have been constmcted in strict compliance with the approved plans. the Code. and
Standards, as documented in written correspondence from the Town to The Developer.
Final Acceptance is defined as the successful end of the warranty period and unreserved
acceptance of public improvements into the Town's capital improvements system, as
documented in a letter from the Town to the Developer. Improvements sliall be eligible
for Final Acceptance only after a two-year warranty period.
1.02 The Plan for public improvements is approved. Approval for constmctiou of public
improvements shall be subject to execution of this Agreement by the Town Administrator. A
pre-constniction meeting with Public Works and Utilities staff must be held before
commencement of constmction.
1.03 This Agreement governs constmction responsibilities for public and private infrastmcture
and overlot grading.
ARTICLE TWO
DEVELOPER COMMITMENTS
2.01 The Development shall be constructed in accordance with the Plan.
2.02 No constnictiou shall begin until all necessary Town officials have signed the final plat
and development plan, and the Developer and Town have obtained all necessary off-site
easements and rights-of-way. All public improvemenTs shall meet the following general
requirements:
A. All public improvements shall be installed and constnicted in compliance with the
approved Plan and Standards. No changes shall be made on the Plan, or in
application thereof, without The Developer first obtaining authorization in writing
from the applicable Town departments,
B. Developer shall construct all public improvements with due diligence, in a
reasonable length of time. If the Town, in its sole discretion, determines that
there has been unreasonable delay in the performance of any of the Developer's
commitments, tlie Town sliall have the right to suspend or refuse building permits
or certificates of occupancy on any portion of the Development until such time as
satisfactory progress is made by Developer. The Town shall have the right to
record and post a public notice of the fact, and neither The Town. nor its officers,
employees, or agents, shall be liable for any damages, direct or consequential, of
any kind or nature, as a result of taking such action.
C. Developer shall make best efforts to control all weeds at the Development and
keep walks and bike paths free of snow, ice. and other hazards within the
Development. Noxious weeds shall be controlled in coiifomiance with the
standards of Title 8 of the Estes Park Municipal Code. In the event Developer
fails to comply with this provision, after ten (10) clays written notice from the
Town, building permits may be denied until such time as Developer has complied.
D. Developer is responsible for constnicting any utility, street, and drainage system
extensions required to serve the Development, as shown on the approved Plan.
E. Developer sliall obtain a grading permit from tlie Town before beginning any
oveiiot grading or undertaking tlie work shown on the Plan.
F. The Town's approval of the Plan for this Development does not relieve The
Developer of the responsibility ofconstnicting a workable development.
Developer shall make all required revisions or corrections to the Plan and to the
public improvements at its sole cost and expense.
Iiiiproveinein Agreement - Page 2 of 9
G. If any improvements installed by Developer within tlie public right-of-way are
required to be moved to accommodate future development by others. such costs
shall be borne by said future developers at their sole expense.
H. A building permit for only one new residential building within the Development
may be issued prior to the installation and acceptance of the required public
improvements. No other new building may receive a building permit until the
Town accepts and approves, as meeting the Code. the completed public
improvements described in the Plan, No temporary or permanent certificate of
occupancy for a new structure shall be issued until the Town grants Construction
Acceptance of The entire required, permanent system of public improvements
shown on the Plan. Construction Acceptance shall require the Town's review and
approval of the as-built drawings.
I. The Development is required to include a trail along Peak View Drive for the
entire extent of Lots 1 and 4, as described in the plat. conditions of approval, and
the Standards. Notwithstanding the foregoing in subsection (H), the trail may be
constructed after building permits and certificaTes of occupancy are issued on Lots
1-3. The trail must be completed within two years from the date of the final plat.
If it is not completed within that Time. or if in the Community Development
Director's determination too little time remains for the trail to feasiblv be
completed within That timeframe, tlie Town may draw on any securities as
necessary, in its determination. To complete the trail or ensure the safety or
workability of the site.
2.03 Developer shall comply with the Code relative to providing financial security for this
Agreement, and shall maintain and renew securities as may be necessary to keep them current.
All public and common improvements must be secured at 115 percent of their cost until
Constmction Acceptance, at which point the security may drop to 15 percent. Upon Final
Acceptance the securities will be released. The security must be as a letter of credit in a form
acceptable to The Town, or in cash deposited with the Town. The Developer shall provide the
payments and securities set forth in Appendix A before beginning constmction. In addition, if
Developer fails to commence consrniction within one year of the Effective Date of this
Agreement, or ifconstmction is halted for a period of one year or more. securities shall be
adjusted based on the CDOT ConsTrucTion Cost Index Report and a pre-construction meeting
held before any construction is commenced, or recommenced. No temporary or permanent
certificate of occupancy shall be issued until Constmction Acceptance. Remaining securities for
multiple improvements after Constmction Acceptance may be agglomerated by the Town to
address any issue with any improvement during the warranty period. The Town may draw on
any securities as necessary, in its determination, if the securities are about to lapse, or to
complete the secured improvement or ensure the safety or workability of the site.
2.04 [Reserved]
2.05 Power and Communications:
IinproveineHi Agreement - Page 3 of 9
A. Town shall constmct the primary electrical distribution and street lighting system
serving the Development, as shown on the Plan.
B. Before any installation, Developer shall pay all costs to the Utilities Department
required:
1. For primary electrical infrastructure serving the Development, as shown
on the Plan. Fees are determined bv Power and Communications after
design of the electrical distribution system is complete. The design
criteria are based on Power and Communications standards specific to the
type of development. The Developer is required to provide detailed
electrical data along with an electronic file of The approved Plan,
2. For primary street lighting systems along public roadways within the
Development and the appropriate portion of costs required for street
lighting systems along public roadways contiguous to Development, as
shown on the Plan.
3. To relocate existing electric facilities necessitated by this Development.
C. Developer shall provide, without cost to the Town. all required new or expanded
easements to accommodate relocation of the existing electric facilities
necessitated by this Development and installation of the electrical distribution
system and to provide conduit crossings of the streets for use with the electrical
distribution system according to Utilities Department specifications.
D. Developer is responsible for the integrity of The electric facilities from damages
due to constmction activities through Final Acceptance by the Town. Damage
may include, but is not limited to crushing by vehicles and disruption of soil
compaction by the developer, builders, and or contractors.
2.06 Parks and Open Space:
Any landscaping, greeriway landscaping, and other landscaped areas to be dedicated to
the Town, shall be designed, constructed, and maintained by Developer until the Town grants
final acceptance of the public improvements. At Final Acceptance, the landscaping. greenway
landscaping, and other landscaped areas shall be maintained by the Town. homeowners'
association, or other entity as noted on the Plan,
2.07 Common and On-Site Private Improvements:
Developer shall deposit tlie securities with tlie Town for on-site private and common
improvements for the Plan, as specified in Appendix A. These securities sliall be separate from
any other securities deposited to insure public improvements and shall be only used for the
private and common improvements. Release of these securities shall not affect Final Acceptance
of public improvements.
Improvement Agreemein - Page 4 of 9
2.08 Liability:
A. Release of Liability: The Developer shall indemnify and save harmless the Town.
its officers, and employees, against any claims, liabilities, damages, fines,
penalties, and costs arising during or after the term of this Agreement from any
work done or omission made by the Developer, its officers, employees.
contractors or agents, under this Agreement and from any constmction of the
public improvements. In addition, the Developer shall indemnify and save
harmless the Town, its officers. and employees, against any claims. liabilities.
damages, fines, penalties, and costs arising from any change in the nature,
direction, quantity, or quality of historical drainage flow resulting from the
Development or from the coiistmctiou of any streets or storm sewers therein.
B. Taxes: For real property dedicated or otherwise conveyed to the Town in
connection with the Development, the Town will estimate tlie real property taxes
for the year of conveyance, based on the pro rata area, the anticipated property tax
classification and current assessed valuation of The property. The Town will then
prorate those estimated taxes to the date of conveyance (recording of plat or
execution of other conveyance). The Developer must pay the Town that prorated
amount at the time tlie parties execute tliis Agreement. Developer shall indemnify
and hold harmless the Town for any property tax liability exceeding that payment
of estimated taxes. For any default in Developer's obligations under this
paragraph, and in addition to any other remedy, the Town may withhold, suspend
or revoke any Building Permit or Certificate of Occupancy for tlie Development.
as otherwise provided in this Agreement.
2.09 Assifinment and Delegation: No transfer or assi.gnment of any of the rights or delegation
of the obligations of the Developer under this Agreement shall be permitted except as follows:
A. Before the sale or other transfer of the Development as a whole unit. the
Developer shall obtain from the buyer or transferee a letter acknowledging The
existence of this Agreement and agreeing to be bound thereby and reflecting
acceptable arrangements concerning posted financial security. Said letTer shall be
signed by the buyer or Transferee, notarized, and delivered to the Clerk of the
Town ofEstes Park before the transfer or sale. Violation of This requirement is a
breach of this Agreement, for which the Town may invoke any of its remedies,
including application of posted financial security. Regardless of whether the
Town exercises any of those remedies. the Town will uot release posted financial
security without the requisite transferee's letter assuming This Agreement and
acceptable substinite financial security.
B. In the event of a sale or transfer of any portion of the Development less than the
whole, except to a bona-fide buyer of a home that has received a certificate of
occupancy, the seller or transferor and the buyer or transferee shall be jointly and
severally liable for the performance of each of the obligations contained in this
Improvement Agreement - Page 5 of 9
Agreement, unless, before the transfer or sale, the Town Administrator approves
an agreement delineating and allocating between the Developer and buyer or
transferee The various rights and obligations of Developer under this Agreement.
ARTICLE THREE
ACCEPTANCE OF PUBLIC IMPROVEMENTS
3.01 Acceptance: As soon as the construction of the public improvements is completed,
Developer shall request a final inspection. Before The Town will issue Constmction Acceptance.
the Developer must provide the Town with reproducible as-built drawings and to any other
agencies requested by the Town. in a form acceptable to the Town. The Developer shall request
final inspection at least 23 and not more than 24 months from the date of the construction
acceptance letter. If both as-built drawings and public improvements are all acceptable, the
Town shall finally accept all public improvements, including the street and utility systems. The
Town will not finally accept less than all of the public improvements for the Development.
3.02 Constniction Acceptance of Less than All Improvements: The Town may grant
Constmction Acceptance for a smaller constituent set of water anci/or sanitary sewer
improvements provided securities remain to cover tlie warranty amounts. Tlie Town will not
consider less than the full set of improvements for Final Acceptance.
ARTICLE FOUR
MISCELLANEOUS
4.01 Provisions Constmed as to Fair Meaning: The provisions of this Agreement shall be
construed as to their fair meaning, and not for or against any party based upon any attribution to
such party as the source of the language in question.
4.02 Headings for Convenience: All headings, captions and titles are for convenience and
reference only and of no meaning in the interpretation or effect of this Agreement.
4.03 Compliance with Ordinances and Regulations: The parties shall perform their respective
obligations under this Agreement in strict compliance with all applicable laws, rules, charters.
ordinances and regulations, as now exist or are laTer enacted or amended, of The Town. and all
county, state and federal entities having jurisdiction over the Development,
4.04 Agreement as Covenant: This Agreement, and all of its obligations, shall run with the
land and be a covenant with respect thereto, and shall be binding upon the parties, and their
respective heirs, grantees, successors and assigns. The Town shall record this Agreement with
the Clerk and Recorder ofLarimer County. Colorado.
4.05 No Third-Partv Beiieticj.anes: None ofrlie terms, conditions or covenants in This
Agreement shall give or allow any claim, benefit, or right of action by any Third person not a
ImproveineHf Agreeinoit — Page 6 of 9
party hereto. Any person other than the Town or the Developer receiving services or benefits
under this Agreement shall be only an incidental beneficiary.
4.06 Fmancial Obligations of Town: All financial obligations of the Town under this
Agreement are contingent upon appropriation. budgeting, and availability of specific fluids to
discharge such obligations. Nothing in this Agreement shall be deemed a debt or multiple fiscal
year financial obligation of the Town or a pledge of the Town's credit, or a collection or payment
guarantee by the Town.
4.07 Integrated Agreement and Amendments: This Agreement is an integration of the entire
understanding of the parties with respect to the matters set forth herein. No representations.
warranties or certifications, expressed or implied, shall exist as between the parties, except as
specifically set forth in this Agreement. Tlie parties shall only amend this Agreement in writing
with the proper official signatures attached thereto,
4.08 Waiver: No waiver of any breach or default under this Agreement shall be a waiver of
any other or subsequent breach or default,
4.09 Severability: Invalidation of any specific provisions of this Agreement shall not affect
the validity of any other provision of this Agreement.
4.10 Governing Law: This Agreement sliall be governed and constnied in accordance with the
laws of the State of Colorado.
4.11 Developer Construction Manager: The person named below is the Developer's
construction manager who shall be the Developer's principal contact for such purposes under
this Agreement. It is the obligation of the Developer to notify the Town's Public Works Director
and Community Development Director in writing of any changes in the name of the constniction
manager within five days of such change. The failure of the Developer to comply with tliis
requirement shall result in the withholding or suspension, in the Town's sole discretion, of all
permits related to tlie Development.
Constmction Manager: Frank Theis
Address: P.O. Box 416
EstesPark.CO 80517
Phone: (970)231-6200
Email Address: ftheis3@gmail.com
4.12 Recording and Fees: This Agreement shall be recorded before commencement of
constmction. Developer shall be responsible for all recording fees.
Iniprovemem Agreeinoir - Page 7 of 9
^EXECUTED AND EFFECTIVE this ^' day of <\Ut\Jt-^.2024.
TOWN OF ESTES PARK
ff^.-^>
State of ^r)IC)JQ3lA).)
) ss:
County of L^2^^M^ )
The foregoing insti-ument was acknowledged before me by L^ICM&H HzH
^^)
_. as the UOULVO^ _ of the Town ofEstes Park, a^T
Colorado municipal corporation, on behalf of the corporation, this ^J_ day of_<^
_, 2024.
Witness my hand and official seal.
My Commission Expires 10 | |^(
KIMBERLY_DJSNEY-NOTARY PUBLICStats of ColoradoJMotaiyTp #i!01.74043232.My Commrssroh Sxplre8~l6/T772025
ORIGINATING DEPARTMENTS:
^<_^—<-—.
Community Development Director
Public W<J>rks Director
^^V(/M^
Notaiy
Date ^L^ /2.^|Z+
^ 1^
Date
Improvement Agreeinejif - Page 8 of 9
APPROVED AS TO FORM:
/^e^
Town Attorney
CMS PLANNING & DEVELOPMENT. INC.
Title: Ff34^±)lV>^f^-
State oiCdnmA^_
ss:
County of^A^AJ M K_ y )
1 The foregoing instrument was acknowledged before me this^J^f^_ day of
OY^L
ro-^Ajp^J-
stmment was acknowledged b^tore mt
_. 2024. by ^r/{^< ~ "Th 0 J <;
of<CMQ_
[QJt^ -^
Pl SL^^AJ^ -^r^Hi^^ ^-^(^T6y natural
acAAg m representative or official capaperson or persons, insert name or names; if by person acting m representative or official capacity
or as attorney-in-fact. insert name of person as an executor, attomey-in-fact, or other capacity or
description; if by officer of corporation, insert name of such officer or officers as the President or
other officers of such corporation. naming it.)
Witness my hand and official seal.
My Commission Expires ^)oLi 0^£t c^Oc^"\ .
Faith Ruth
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID# 2023W/276
MY COMMISSION EXPIRES C2/23/2027,
Notaiy Public
Iinproveinein Agreement -- Page 9 of 9