Exhibit 10.7
SUBDIVISION AGREEMENT
THIS AGREEMENT is made this 29 day of December, 1997, between the CITY OF
BLACK HAWK, COLORADO, a home rule municipal corporation (the "City"), and
WINDSOR - WOODMONT, L.L.C. (the "Developer").
RECITALS:
A. The Developer is the owner of certain real property located in the City
of Black Hawk known as St. Moritz Resort and Casino, Filing No. 1, which is more
particularly described in Exhibit A attached hereto and made a part hereof (the
"Property").
B. On December 29, 1997, the Board of Aldermen 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:
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, the rules and regulations of the
District, 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 the actual cost to the
City for 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 hereby agrees:
a. The Developer shall construct the Xxxxxxx Street improvements
which shall include, but not be limited to, the construction of
three (3) twelve (12) foot vehicular lanes with 1-1/2 foot curb
and gutter on both sides of the street along the entire length
of the property from State Highway 119 to the northerly property
boundary line; construct rock faced retaining walls and erosion
control as required by the City and its Drainage Consultant
along the east side of the Xxxxxxx Street improvements and
adjacent to the Four Mile Gulch drainage channel; sidewalks
averaging eight (8) feet wide and ranging in width from
approximately twenty (20) feet at the southerly end of Xxxxxxx
Street and five (5) feet on the northerly end of Xxxxxxx Street
as shown on the Geometry Plan for the Property dated November 3,
1997; street lighting, striping, signage, and other necessary
improvements to Xxxxxxx Street as determined by the City and
constructed according to construction plans approved by the
City.
The Developer shall dedicate and convey by special warranty
deed, free and clear of all liens and encumbrances, sufficient
additional right-of-way for Xxxxxxx Street such that Xxxxxxx
Street consists of a fourty foot (40') wide right-of-way, as
depicted on the St. Moritz Resort and Casino Filing Xx. 0 Xxxxx
Xxxxxxxxxxx Xxxx ("Xxx Xxxxxxx Xxxxxx"). The right-of-way
dedication for New Xxxxxxx Street is shown on the plat of St.
Moritz Resort and Casino, Filing Xx. 0, Xxxxx Xxxxxxxxxxx Xxxx.
Xxx Xxxx shall convey to the Developer, after the City accepts
the Public Improvements described herein, that portion of
existing Xxxxxxx Street that is located between Xxxxxxx Street
as realigned and the real property described in Exhibit A
("Existing Xxxxxxx Street"). Upon such conveyance the City shall
adopt an ordinance vacating Existing Xxxxxxx Street. The City
- 2 -
further agrees to convey to the Developer rockbolt easements for
Existing Xxxxxxx Street and New Xxxxxxx Street, to the extent
necessary for the Developer's Project and to the extent that
such rockbolt easements do not interfere with the City's use of
Existing Xxxxxxx Street and New Xxxxxxx Street.
b. The Developer shall construct the signals necessary at the
intersection of Xxxxxxx Xxxxxx xxx Xxxxx Xxxxxxx 000 as
determined by the City and according to standards of the City of
Black Hawk and the Colorado Department of Transportation.
c. The Developer shall construct public improvements within the
State Highway 119 right-of-way that shall include, but not be
limited to, all in accordance with the approvals and
requirements of the Colorado Department of Transportation and
concurrence with the City of Black Hawk Public Works Department,
an accel/decel lane along the southerly length of the property
abutting the highway right-of-way; a right turn in/right turn
out entrance/exit to the parking garage; Highway 119
improvements and lane construction in accordance with the
Colorado Department of Transportation and the City of Black
Hawk's Traffic Consultants requirements; construction of curb
and gutter along the highway frontage; construction of minimal
sidewalks at the entrance to the casino and pedestrian crossing
at Highway 119 and Xxxxxxx Streets with a commitment for
construction of a future ten (10) foot wide sidewalk solely at
the Developer's cost along the highway frontage when requested
by the City; and other necessary improvements along the Highway
119 frontage as determined by the City and according to
construction plans approved by the City.
d. The Developer shall construct and install landscaping along the
Xxxxxxx Street and State Highway 119 frontage including, but not
limited to, trees, shrubs, berms, lawns, and necessary amenities
in accordance with the Landscaping Plan approved by the City of
Black Hawk.
e. The Developer shall construct and maintain for perpetuity
drainage improvements which shall include, but not be limited
to, 18" and 24" reinforced concrete pipe subsurface storm
- 3 -
drainage collection system along the Xxxxxxx Xxxxxx xxx Xxxxx
Xxxxxxx 000 frontages consisting of approximately seven hundred
fifty (750) feet of pipe, catch basins, manholes, highway
crossing and connection to the North Clear Creek box culvert
installed for the Black Hawk/Xxxxxx development; mitigation of
impacts determined in the offsite and construction level
drainage plans as reviewed and approved by the City of Black
Hawk and its Drainage Consultant; compliance with all
requirements of FEMA in accordance with the CLOMR review and
approval; and other necessary improvements as determined by the
City and constructed in accordance with the construction plans
approved by the City.
f. In addition to those Public Improvements specified herein, the
Developer has requested a Conditional Letter of Map Revision
("CLOMR") from the Federal Emergency Management Agency. In
accordance with the Developer's request for a CLOMR and the
City's signature on the request for the CLOMR indicating its
understanding of the impacts created therein, the Developer
agrees to be responsible of all the construction and maintenance
of the channel improvements and flood control facilities that
are required pursuant to the Developer's request for the CLOMR.
The Developer further agrees that in the event of an emergency
situation requiring an immediate response by the City related to
the flood control structures owned by the Developer, the City
shall, in the exercise of its sole discretion, take whatever
action is necessary to rectify the emergency situation, and the
Developer expressly agrees to reimburse and indemnify the City
for all costs and expenses associated with the City s response.
The Developer and the City agree that the City's only other
obligation pursuant to the Developer's request for a CLOMR is to
inspect the flood control structure once every twelve (12)
months to ensure the Developer's compliance with the maintenance
and operation of the channel improvements and flood control
facilities constructed by the Developer.
- 4 -
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 Board
of Aldermen shall be notified immediately and the City, and where appropriate
the District, may take such action as permitted and/or authorized by law, this
Agreement, or the ordinances and Charter of the City and the rules and
regulations of the District to protect the public health, safety and welfare; 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 Improvement 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
and/or the District, or to protect the City's and/or District's interest with
regard to security given for the completion of the Public Improvements, the
City, and where appropriate the District, shall provide the Developer thirty
(30) days written notice of its intent to take any action under this paragraph
during which thirty-day periods the Developer may cure the breach described in
the notice and prevent further action by the City and/or the District.
6. Public Improvements and Warranty. All water lines, sewer lines, fire
hydrants, water or sewer 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, and
- 5 -
where appropriate the Manager of the District, 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 approved by the Director of Public Works of the City, and
where appropriate the Manager of the District, and the costs of these
improvements are set forth in Exhibit C attached hereto and incorporated herein.
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 approved by
the Director of Public Works of the City, and where appropriate the Manager of
the District.
The Developer shall warrant any and all Public Improvements which are
conveyed to the City and the District 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), and where appropriate
the Manager of the District, certifies that the same conform with specifications
approved by the City, and where appropriate the District. 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, and where appropriated the District, 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, and where appropriate the District, 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
- 6 -
particular time shall not constitute the approval by the City or the District of
any portion of the construction of such Public Improvements. Such approval shall
be made by the City, and where appropriate the District, 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 paragraph 6 of this Agreement, including the inspections hereof,
shall be performed on or before June 1, 2000, 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 her designee, and where appropriate the
Manager of the District, shall inspect the improvements and certify its
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,
and where appropriate the District, 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
paragraphs 2.a. and b. of this Agreement are paid in full by the Developer. The
City shall not issue any certificates of occupancy, temporary or otherwise, for
any structure within the real property described in Exhibit A until the Public
Improvements described herein are completed and accepted by the City, and
additional public improvements which are described herein are completed and
accepted by the City.
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 "as built" drawings certified accurate by a
professional engineer registered in the State of Colorado.
10. Improvements to be the Property of the City. All Public Improvements
for roads, concrete curbs and gutters, storm sewers, sanitary sewers, water
systems and drainage improvements accepted by the City, and where appropriate
the District, shall be dedicated to the City, and where appropriate the
District, 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, and where appropriate the District, by xxxx of sale,
all installed physical facilities.
- 7 -
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 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. 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; provided, however, this requirement shall not
apply to the issuance of a bench excavation permit which is governed by City of
Black Hawk ordinance. The City shall not issue a foundation excavation permit
for the Property until such time as a CLOMR is issued for the Property.
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, and where
appropriate the Manager of the District, as set forth in Exhibit C. 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.
- 8 -
The estimated costs of the Public Improvements may increase in 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 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 draw 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 and the District, 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
- 9 -
any and all judgments rendered against the City and the District as the result
of any suit, action, or claim, together with all reasonable expenses and
attorneys fees incurred by the City and the District in defending any such suit,
action or claim.
The Developer shall pay all property taxes on the Property dedicated to the
City and the District, and shall indemnify and hold harmless the City and the
District 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 any, in the formalities whereby it
is executed, or concerning the power of the City and the District 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 and the
District 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 inure 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
- 10 -
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 and the
District'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 address of the parties herein set
forth. All notices so given shall be considered effective seventy-two (72) hours
after deposit 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.
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Notice to Developer: Windsor - Woodmont, L.L.C.
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Rowbinowitz
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 unforeseeable causes beyond the control
- 11 -
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 or the District
is necessary pursuant to any provision of this Agreement, the City and the
District 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 Agreement shall be recorded in the real
estate records of Xxxxxx County and shall be a covenant 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, WINDSOR - WOODMONT, L.L.C.,
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:______________________________
Xxxxxxx X. Xxxxxx, Mayor
ATTEST:
------------------------------
Xxxxx Round, City Clerk
APPROVED AS TO FORM:
------------------------------
Xxxxx X. Xxxxxxx, City Attorney
- 12 -
DEVELOPER:
WINDSOR - WOODMONT, L.L.C.
By:_______________________________
Name:_____________________________
Title:____________________________
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 Windsor - Woodmont, L.L.C.
Witness my hand and official seal.
My commission expires: __________________________
(S E A L) ______________________________
Notary Public
- 13 -
FIRST ADDENDUM TO SUBDIVISION AGREEMENT
---------------------------------------
THIS SUBDIVISION AGREEMENT is made this ____ day of March, 1998, by and
between the CITY OF BLACK HAWK, COLORADO (the "City") and WINDSOR - WOODMONT,
L.L.C. (the "Developer").
RECITALS:
--------
o On December 29, 1997, the City and the Developer entered into a
Subdivision Agreement (the "Agreement").
o The City and the Developer desire to extend the period of time in
which the Developer can post the performance guarantee under paragraph
11.
NOW, THEREFORE, the City and the Developer, for the consideration recited
in the Subdivision Agreement, agree to amend the Subdivision Agreement by this
First Addendum to Subdivision Agreement to provide as follows:
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 June 1, 1998, 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 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. 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 no
later than June 1, 1998 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; provided, however,
this requirement shall not apply to the issuance of a bench excavation
permit which is governed by City of Black Hawk ordinance. The City shall
not issue a foundation excavation permit for the Property until such time
as a CLOMR is issued for the Property.
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, and where appropriate the Manager of the District, as set forth in
Exhibit C. 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 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 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 draw 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.
IN WITNESS WHEREOF, the parties hereto have executed this First Addendum to
Subdivision Agreement on the date stated above.
CITY OF BLACK HAWK, COLORADO
By:
------------------------------------
Xxxxxxx X. Xxxxxx, Mayor
ATTEST:
------------------------------
Xxxxx Round, City Clerk
APPROVED AS TO FORM:
-------------------------------
Xxxxx X. Xxxxxxx, City Attorney
WINDSOR - WOODMONT, L.L.C.
By:
------------------------------
STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was subscribed, sworn to, and acknowledged before
me this _______ day of _______________________, 1998, by
_________________________________________ as the _______________________________
of Windsor - Woodmont, L.L.C.
Witness my hand and official seal.
My commission expires:
------------------------------
(S E A L)
------------------------------
Notary Public
SECOND ADDENDUM TO SUBDIVISION AGREEMENT
----------------------------------------
THIS SECOND ADDENDUM TO SUBDIVISION AGREEMENT is made this ____ day of May,
1998, by and between the CITY OF BLACK HAWK, COLORADO (the "City") and WINDSOR -
WOODMONT, L.L.C. (the "Developer").
RECITALS:
---------
o On December 29, 1997, the City and the Developer entered into a
Subdivision Agreement (the "Agreement").
o On March _______, 1998, the City and Developer entered into the First
Addendum to Subdivision Agreement to extend the period of time in
which Developer may post the performance guarantee under paragraph 11.
o The City and the Developer desire to again extend the period of time
in which the Developer can post the performance guarantee under
paragraph 11.
NOW, THEREFORE, the City and the Developer, for the consideration recited
in the Subdivision Agreement, agree to amend the Subdivision Agreement by this
Second Addendum to Subdivision Agreement to provide as follows:
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 December 1, 1998, 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 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. 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 no
later than December 1, 1998, 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; provided, however, this requirement shall not apply to the
issuance of a bench excavation permit which is governed by City of Black
Hawk ordinance. The City shall not issue a foundation excavation permit for
the Property until such time as a CLOMR is issued for the Property.
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, and where appropriate the Manager of the District, as set forth in
Exhibit C. 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 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 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 draw 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.
IN WITNESS WHEREOF, the parties hereto have executed this Second Addendum
to Subdivision Agreement on the date stated above.
CITY OF BLACK HAWK, COLORADO
By:
--------------------------------
Xxxxxxx X. Xxxxxx, Mayor
ATTEST:
------------------------------
Xxxxx Round, City Clerk
APPROVED AS TO FORM:
------------------------------
Xxxxx X. Xxxxxxx, City Attorney
WINDSOR - WOODMONT, L.L.C.
By:
------------------------------
STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was subscribed, sworn to, and acknowledged before
me this _______ day of _______________________, 1998, by
_________________________________________ as the _______________________________
of Windsor - Woodmont, L.L.C.
Witness my hand and official seal.
My commission expires:
------------------------
(S E A L)
------------------------------
Notary Public
THIRD ADDENDUM TO SUBDIVISION AGREEMENT
---------------------------------------
THIS THIRD ADDENDUM TO SUBDIVISION AGREEMENT is made this ____ day of
March, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City") and
WINDSOR WOODMONT BLACK HAWK RESORT CORP., (the "Developer").
RECITALS:
---------
On December 29, 1997, the City and the Developer entered into a Subdivision
Agreement (the "Agreement").
On March 25, 1998, the City and Developer entered into the First Addendum
to Subdivision Agreement.
On May 27, 1998, the City and Developer entered into the Second Addendum to
Subdivision Agreement.
The City and the Developer desire to enter into this Third Addendum to
extend the date for completion of the public improvements described in the
Subdivision Agreement and approve the assignment of the Subdivision Agreement
from Windsor-Woodmont, LLC to Windsor Woodmont Black Hawk Resort Corp, which is
now the current owner of the Property.
NOW, THEREFORE, the City and the Developer, for the consideration recited
in the Subdivision Agreement, agree to amend the Subdivision Agreement by this
Second Addendum to Subdivision Agreement to provide as follows:
1. Completion of Public Improvements. The obligations of the Developer
provided for in paragraph 6 of this Agreement, including the
inspections hereof, shall be performed on or before December 31, 2001,
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, and where appropriate the Manager of the
District, shall inspect the improvements and certify its 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, and where appropriate the District, 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 paragraphs
2.a. and b. of this Agreement are paid in full by the Developer. The
City shall not issue any certificates of occupancy, temporary or
otherwise, for any structure within the real property described in
Exhibit A until the Public Improvements described herein are completed
and accepted by the City, and additional public improvements which are
described herein are completed and accepted by the City.
-1-
IN WITNESS WHEREOF, the parties hereto have executed this Third Addendum to
Subdivision Agreement on the date stated above.
CITY OF BLACK HAWK, COLORADO
By:______________________________
Xxxxxxx X. Xxxxxx, Mayor
ATTEST:
------------------------------
Xxxxxxx X. Xxxxx, CMC, City Clerk
APPROVED AS TO FORM:
------------------------------
Xxxxx X. Xxxxxxx, City Attorney
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.
By:______________________________
STATE OF COLORADO )
) ss.
COUNTY OF _________________ )
The foregoing instrument was subscribed, sworn to, and acknowledged
before me this _______ day of _______________________, 2000, by
_________________________________________ as the _______________________________
of Windsor Woodmont Black Hawk Resort Corp.
Witness my hand and official seal.
My commission expires: __________________________
(S E A L)
---------------------------------
Notary Public
-2-
