EXHIBIT 10.8
SUBDIVISION AGREEMENT
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THIS SUBDIVISION AGREEMENT is made this ____ day of July, 1997, by and
between the CITY OF BLACK HAWK, COLORADO (the "City") and ISLE OF CAPRI BLACK
HAWK, LLC (the "Developer").
RECITALS:
A. The Developer is the owner of certain real property located in the City
of Black Hawk known as Isle of Capri Black Hawk Subdivision Filing No. 1, which
is more particularly described in Exhibit A attached hereto and made a part
hereof (the "Property").
B. On _______________________, 1997, the City Council of the City of Black
Hawk, after holding all necessary public hearings and having received a
recommendation of approval from the Black Hawk Planning Commission, approved the
final plat for the Property. A copy of the final plat is attached hereto as
Exhibit B and incorporated herein.
C. The approvals cited above are contingent upon the express condition
that all duties created by this Agreement are faithfully performed by the
Developer.
AGREEMENT:
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NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which are mutually acknowledged,
the parties hereto agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms,
conditions, and fees to be paid by the Developer upon subdivision of the
Property. All conditions contained herein are in addition to any and all
requirements of the City of Black Hawk Subdivision Ordinance and Zoning
Ordinance, the City of Black Hawk Charter, any and all state statutes, and any
other sections of the City of Black Hawk Municipal Code, and are not intended to
supersede any requirements contained therein.
2. Fees. The Developer hereby agrees to pay the City actual cost to the
City of engineering, hydrological, surveying, and legal services (the "Actual
Costs") rendered in connection with the review of the subdivision of the
Property, including related administrative fees not to exceed fifteen percent
(15%) of the Actual Costs. In addition, the Developer shall reimburse the City
for the costs of making corrections or additions to the master copy of the
official City map and for the fee for recording the final plat and accompanying
documents with the Xxxxxx County Clerk and Recorder.
3. Specific Conditions. The Developer shall construct the Public
Improvements described below according to the terms and conditions of the
Agreement.
a. The Developer shall construct Mill Street improvements which
include, but are not limited to, the construction of an
additional twelve foot (12') lane to the existing four (4) lane
Mill Street and bridge, curb and gutter on both sides of the
street, street lighting, striping, signage and other necessary
improvements to Mill Street as determined by the City and
constructed according to construction plans approved by the City.
b. The Developer shall construct the Main Street improvements which
include, but are not limited to, the construction of that portion
of Main Street that abuts the Property and is approximately seven
hundred feet (700') in length and includes three (3) full
concrete lanes and a fifty foot (50') radius cul-de-sac, a ten
foot (10') sidewalk located on the south side of Main Street, a
left-turn lane from in-bound Mill Street to Main Street,
pedestrian and vehicular street lighting, curb and gutter on both
sides of the street, striping, signage, retaining walls,
landscaping and other necessary improvements to Main Street as
determined by the City and constructed according to the City's
design for "Project Xx. XX-00-00 Xxxx Xxxxxx Xxxxxxxxxxx
Improvements". The Developer shall also underground within Main
Street all required utilities including, but not limited to, a
twelve inch (12") waterline, pressure reducing valve and all
required appurtenances, an eighteen inch (18") or twenty-one inch
(21") sewer line as determined by the City, storm sewer, and all
other utilities (telephone, electric, gas, and cable T.V.) along
that portion of Main Street that abuts the Property, from the
intersection of Mill and Main Streets to the terminus of the
eastern boundary of the Main Street cul-de-sac according to City
standards. The Developer shall not engage in any construction
within the Main Street right-of-way or use the Main Street right-
of-way without prior written approval from the City, which will
not be unreasonably withheld.
c. The Developer shall construct the signals necessary at the
intersections of Main Street and Mill Street and State Highway
119 and Mill Street as determined by the City and according to
standards of the City
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of Black Hawk and the Colorado Department of Transportation.
d. The Developer shall pay the City sixty thousand dollars ($60,000)
as a condition of the issuance of a building permit, which money will be used to
pay for a traffic study concerning access to the City and State Highway 119.
4. Title Policy. A title commitment for the Property shall be provided to
the City. The title commitment shall show that all property to be dedicated to
the City is or shall be, subsequent to the execution and recording of the plat,
free and clear of all liens and encumbrances (other than real estate taxes which
are not yet due and payable) which would make the dedications unacceptable as
the City in its sole discretion determines. The title policy evidenced by the
title commitment shall be provided thirty (30) days after the recording of the
final plat.
5. Breach by the Developer; the City's Remedies. In the event of a breach
of any of the terms and conditions of this Agreement by the Developer, the City
Council shall be notified immediately and the City may take such action as
permitted and/or authorized by law, this Agreement, or the ordinances and
Charter of the City; to protect lot buyers and builders; and to protect the
citizens of the City from hardship and undue risk. These remedies include, but
are not limited to:
a. the refusal to issue any building permit or certificate of
occupancy;
b. the revocation of any building permit previously issued under
which construction directly related to such building permit has
not commenced;
c. a demand that the security given for the completion of the Public
Improvements be paid or honored; or
d. any other remedy available at law.
Unless necessary to protect the immediate health, safety and welfare of the
City, or to protect the City's interest with regard to security given for the
completion of the Public Improvements, the City shall provide the Developer with
thirty (30) days written notice of its intent to take any action under this
paragraph, during which thirty (30) day period the Developer may cure the breach
described in the notice and prevent further action by the City.
6. Public Improvements and Warranty. All improvements described in
paragraph 3, water lines, sewer lines, fire hydrants,
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water distribution facilities, drainage structures, paved streets, including
curb and gutter, and necessary appurtenances as shown on the subdivision plat
and the associated construction documents (the "Public Improvements") as
approved by the Director of Public Works of the City, shall be installed and
completed at the expense of the Developer. The improvements required by this
Agreement and shown on the final subdivision plat submittal, as well as
associated construction documents which are subject to approval, which will not
be unreasonably withheld, by the Director of Public Works of the City prior to
the issuance of any building permit and the estimated costs of these
improvements, are set forth in Exhibit C, which is attached hereto and
incorporated by this reference. All Public Improvements covered by this
Agreement shall be made in accordance with the subdivision plat and associated
construction documents drawn according to regulations and construction standards
for such improvements and which are subject to approval, which will not be
unreasonably withheld, by the Director of Public Works of the City prior to the
issuance of any building permit.
The Developer shall warrant any and all Public Improvements which are
conveyed to the City pursuant to this Agreement for a period of one (1) year
from the date the City's Director of Public Works (except water improvements
which shall have a three (3) year warranty), certifies that the same conform
with specifications approved by the City. Specifically, but not by way of
limitation, the Developer shall warrant the following:
a. that the title conveyed shall be marketable and its transfer
rightful;
b. any and all facilities conveyed shall be free from any security
interest or other lien or encumbrance; and
c. any and all facilities so conveyed shall be free of defects in
materials or workmanship for a period of one (1) year (three (3)
years for water improvements) as stated above.
The City will accept for maintenance all Public Improvements after the
warranty period has expired provided all warranty work has been completed. The
City shall accept for snow removal purposes only all dedicated public streets
after the warranty period expires or the City issues the first certificate of
occupancy.
7. Observation. The City shall have the right to make reasonable
engineering observations at the Developer's expense as the City may request.
Observation, acquiescence in, or approval by any engineering inspector of the
construction of physical facilities at any particular time shall not constitute
the approval
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by the City of any portion of the construction of such Public Improvements. Such
approval shall be made by the City only after completion of construction and in
the manner hereinafter set forth.
8. Completion of Public Improvements. The obligations of the Developer
provided for in paragraphs 3 and 6 of this Agreement, including the inspections
thereof, shall be performed on or before January 1, 1999 or the issuance of a
certificate of occupancy, whichever occurs first, and proper application for
acceptance of the Public Improvements shall be made on or before such date. Upon
completion of construction by the Developer of such Public Improvements, the
City's Director of Public Works or his designee shall inspect the improvements
and certify with specificity their conformity or lack thereof to the City's
specifications. The Developer shall make all corrections necessary to bring the
improvements into conformity with the City's specifications. Once approved by
the City's Director of Public Works, the City shall accept said improvements
upon conveyance pursuant to paragraph 10; provided, however, the City shall not
be obligated to accept the Public Improvements until the Actual Costs described
in paragraph 2 of this Agreement are paid in full by the Developer.
9. Related Costs - Public Improvements. The Developer shall provide all
necessary engineering designs, surveys, field surveys, and incidental services
related to the construction of the Public Improvements at its sole cost and
expense, including reproducible "record drawings" certified accurate by a
professional engineer registered in the State of Colorado approved by the City
according to City standards.
10. Improvements to be the Property of the City. All Public Improvements
for roads, concrete curbs and gutters, storm sewers, water systems and drainage
improvements accepted by the City, shall be dedicated to the City and warranted
for a period of twelve (12) months (thirty-six (36) months for water systems)
following acceptance by the City as provided above. Upon completion of
construction and conformity with the subdivision plat and associated
construction plans, and any properly approved changes, the Developer shall
convey to the City by xxxx of sale all installed physical facilities.
11. Performance Guarantee. In order to secure the construction and
installation of the Public Improvements above-described for which the Developer
is responsible, the Developer shall, prior to recording the final plat in the
real estate records of Xxxxxx County, which recording shall occur no later than
ninety (90) days after the execution of this Agreement, furnish the City, at the
Developer's expense, with an irrevocable letter of credit in which the City is
designated as beneficiary, to secure the performance and completion of the
Public Improvements, or the City may accept at its sole discretion some other
form of security from
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the Developer in an amount equal to one hundred ten percent (110%) of the
estimated costs of the Public Improvements to be constructed and installed as
set forth in Exhibit C which are estimated costs which may be increased at such
time as the Director of Public Works approves the construction documents for the
Public Improvements. The Developer agrees that approval of the final plat by the
City is contingent upon the Developer's provision of an irrevocable letter of
credit to the City within ninety (90) days of the execution of this Agreement in
the amount and form provided herein. Failure of the Developer to provide an
irrevocable letter of credit to the City in the manner provided herein shall
negate the City's approval of the final plat. Letters of credit shall be
substantially in the form and content set forth in Exhibit D, attached hereto
and incorporated herein, and shall be subject to the review and approval of the
City Attorney. The Developer shall not start any construction of any public or
private improvement on the Property including, but not limited to, staking,
earth work, overlot grading, or the erection of any structure, temporary or
otherwise, until the City has received and approved the irrevocable letter of
credit, except pursuant to a bench excavation permit duly issued by the City
upon satisfaction of all City requirements for the issuance of a bench
excavation permit and the posting of an irrevocable letter of credit for a bench
excavation permit.
The estimated costs of the Public Improvements shall be a figure mutually
agreed upon by the Developer and the City's Director of Public Works based upon
the construction documents for the Public Improvements as approved by the Public
Works Director. If, however, they are unable to agree, the Director of Public
Works' estimate shall govern after giving consideration to information provided
by the Developer including, but not limited to, construction contracts and
engineering estimates. The purpose of the cost estimate is solely to determine
the amount of security. No representations are made as to the accuracy of these
estimates, and the Developer agrees to pay the Actual Costs of all such Public
Improvements.
The estimated costs of the Public Improvements may increase in the future.
Accordingly, the City reserves the right to review and adjust the cost estimate
on an annual basis. Adjusted cost estimates will be made according to changes in
the Construction Costs Index as published by the Engineering News Record. If the
City adjusts the cost estimated for the Public Improvements, the City shall give
written notice to the Developer. The Developer shall, within thirty (30) days
after receipt of said written notice, provide the City with a new or amended
letter of credit in the amount of the adjusted cost estimates. If the Developer
refuses or fails to so provide the City with a new or amended letter of credit,
the City may exercise the remedies provided for in paragraph 5 of this
Agreement; provided, however, that prior to increasing the amount of additional
security required, the City
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shall give credit to the Developer for all required Public Improvements which
have actually been completed so that the amount of security required at any time
shall relate to the cost of required Public Improvements not yet constructed.
In the event the Public Improvements are not constructed or completed
within the period of time specified by paragraph 8 of this Agreement or a
written extension of time mutually agreed upon by the parties to this Agreement,
the City may drawn on the letter of credit to complete the Public Improvements
called for in this Agreement. In the event the letter of credit is to expire
within fourteen (14) calendar days and the Developer has not yet provided a
satisfactory replacement, the City may draw on the letter of credit and either
hold such funds as security for performance of this Agreement, or spend such
funds to finish the Public Improvements or correct problems with the Public
Improvements as the City deems appropriate.
Upon completion or performance of such improvements, conditions, and
requirements within the required time, and the approval of the Director of
Public Works, ninety percent (90%) of the estimated costs of construction shall
be released to the Developer within ten (10) days of acceptance by the City
provided, however, the City shall retain through the one (1) year warranty
period at least twenty percent (20%) of the total construction costs of the
Public Improvements.
12. Indemnification. The Developer shall indemnify and hold harmless the
City, its officers, employees, agents or servants, from any and all suits,
actions, and claims of every nature and description caused by, arising from, or
on account of any act or omission of the Developer, or of any other person or
entity for whose act or omission the Developer is liable, with respect to
construction of the Public Improvements; and the Developer shall pay any and all
judgments rendered against the City as the result of any suit, action, or claim,
together with all reasonable expenses and attorney fees incurred by the City in
defending any such suit, action or claim.
The Developer shall pay all property taxes on the Property dedicated to the
city, and shall indemnify and hold harmless the City for any property tax
liability.
The Developer shall require that all contractors and other employees
engaged in construction of Public Improvements shall maintain adequate workers'
compensation insurance and public liability coverage and shall faithfully
comply with the provisions of the Federal Occupational Safety and Health Act.
13. Waiver of Defects. In executing this Agreement the Developer Waives all
objections it may have concerning defects, if
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any; in the formalities whereby it is executed, or concerning the power of the
City to impose conditions on the Developer as set forth herein, and concerning
the procedure, substance, and form of the ordinances or resolutions adopting
this Agreement.
14. Modifications. This Agreement shall not be amended except by
subsequent written agreement of the parties.
15. Release of Liability. It is expressly understood that the City cannot
be legally bound by the representations of any of its officers or agents or
their designees except in accordance with the City of Black Hawk Code of
Ordinances and the laws of the State of Colorado.
16. Captions. The captions to this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit, or prescribe the
scope or intent of this Agreement or any part thereof.
17. Binding Effect. This Agreement shall be binding upon and insure to the
benefit of the parties hereto and their respective heirs, successors, and
assigns as the case may be.
18. Invalid Provision. If any provision of this Agreement shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provision hereof, and all of the other
provisions shall remain in full force and effect. It is the intention of the
parties hereto that if any provision of this Agreement is capable of two
constructions, one of which would render the provision void and the other which
would render the provision valid, then the provision shall have the meaning
which renders it valid.
19. Governing Law. The laws of the State of Colorado shall govern the
validity, performance and enforcement of this Agreement. Should either party
institute legal suit or action for enforcement of any obligation contained
herein, it is agreed that venue of such suit or action shall be in Xxxxxx
County, Colorado.
20. Attorney Fees. Should this Agreement become the subject of litigation
to resolve a claim of default of performance by the Developer and a court of
competent jurisdiction determines that the Developer was in default in the
performance of the Agreement, the Developer shall pay the City's attorney fees,
expenses, and court costs.
21. Notice. All notice required under this Agreement shall be in writing
and shall be hand-delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, to the addresses of the parties herein set
forth. All notices so given shall be considered effective seventy-two (72) hours
after deposit
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in the United States mail with the proper address as set forth below. Either
party by notice so given may change the address to which future notices shall be
sent.
Notice to the City: Public Works Director
City of Black Hawk
X.X. Xxx 00
Xxxxx Xxxx, Xxxxxxxx 00000
With copy to: Xxxxx X. Xxxxxxx, Esq.
Black Hawk City Attorney
Xxxxx, Xxxxxxxx & Xxxxxxx, P.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Notice to Developer: ______________________________
______________________________
______________________________
With copy to: ______________________________
______________________________
______________________________
22. Force Majeure. Whenever the Developer is required to complete the
construction, repair, or replacement of Public Improvements by an agreed
deadline, the Developer shall be entitled to an extension of time equal to a
delay in completing the foregoing due to unforseeable causes beyond the control
and without the fault or negligence of the Developer including, but not
restricted to, acts of God, weather, fires, and strikes.
23. Approvals. Whenever approval or acceptance of the City is necessary
pursuant to any provision of this Agreement, the City shall act reasonably and
in a timely manner in responding to such request for approval or acceptance.
24. Assignment or Assignments. There shall be no transfer or assignment of
any of the rights or obligations of the Developer under this Agreement without
the prior written approval of the City. The Developer agrees to provide the City
with at least fourteen (14) days advance written notice of the transfer or
assignment of any of the rights and obligations of the Developer under this
Agreement.
25. Recording of Agreement. This Agreements shall be recorded in the real
estate records of Xxxxxx County and shall be a covenant
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running with the Property in order to put prospective purchasers or other
interested parties on notice as to the terms and provisions hereof.
26. Title and Authority. The Developer expressly warrants and represents
to the City that it is the record owner of the property constituting the
Property and further represents and warrants, together with the undersigned
individual(s), that the undersigned individual(s) has or have full power and
authority to enter into this Subdivision Agreement. The Developer and the
undersigned individual(s) understand that the City is relying on such
representations and warranties in entering into this Agreement.
WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above-written.
CITY OF BLACK HAWK, COLORADO
By:
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Xxxxxxx X. Xxxxxx, Mayor
ATTEST:
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Xxxxx Round, City Clerk
APPROVED AS TO FORM:
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Xxxxx X. Xxxxxxx, City Attorney
ISLE OF CAPRI BLACK HAWK, LLC
By:
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Name:
----------------------------
Title:
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STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was subscribed, sworn to, and acknowledged before
me this ____ day of _____________________, 1997, by ________________________ as
the ____________________________ of Isle of Capri Black Hawk, LLC.
My commission expires: ___________________________
(S E A L)
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Notary Public
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