SUBDIVISION AGREEMENT
THIS AGREEMENT is made this 28th day of February, 1996, by
and among the CITY OF BLACK HAWK, COLORADO (the "City"), THE
BLACK HAWK/CENTRAL CITY SANITATION DISTRICT (the "District"),
MILLSITE 27, INC., and MILLSITE 20 LIMITED LIABILITY COMPANY
(these last two entities are collectively referred to as the
"Developer").
RECITALS:
A. The Developer is the owner of certain real property
located in the City of Black Hawk which is more particularly
described in Exhibit A attached hereto and made a part hereof
(the "Property").
B. On February 28, 1996, 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.
D. The Millsite 20 Limited Liability Company has no
obligation to construct any of the public improvements described
herein.
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
Gilpin County Clerk and Recorder.
3. Specific Conditions. The Developer hereby agrees that:
a. The Developer shall construct creekscape
improvements according to plans and specifications
approved by the Public Works Director for the City
of Black Hawk on or adjacent to the Property. The
preliminary cost associated with this construction
is thirteen thousand six hundred and twenty-eight
dollars ($13,628).
b. The Developer shall construct, according to the
plans and specifications approved by the Public
Works Director for the City, a fire hydrant and
eight-inch (8") water loop connection line from
Chase Street as approved by the City Public Works
Director. The preliminary construction cost
associated with this construction is forty-eight
thousand and eighty-seven dollars ($48,087).
c. The Developer shall construct a left-hand turn
lane on north-bound 119 to Chase Street according
to the plans and specifications approved by the
Colorado Department of Transportation and/or the
Public Works Director for the City (the "Left-Hand
Turn Lane"). The Developer intends to construct a
parking garage in two phases, the first phase of
which shall not exceed 440 spaces. Prior to the
issuance of any building permit for the second
phase of the parking garage, the Developer shall
provide to the City Public Works Director the
plans and specifications for the Left-Hand Turn
Lane. Upon the approval by the City Public Works
Director of the estimated preliminary construction
costs associated with the Left-Hand Turn Lane, the
Developer shall provide the City with an
irrevocable letter of credit in an amount equal to
110% of the estimated preliminary construction
costs of the Left-Hand Turn Lane. The City shall
not issue a Building Permit for phase two of the
parking garage until these requirements are
satisfied.
d. The final plat from the Property is approved on
the condition that Hemmeter Enterprises, Inc. (or
its assigns), purchases that portion of the
Property owned by the Millsite 20 Limited
Liability Company, on or before April 8, 1996,
unless extended by written agreement between
Millsite 27, Inc. and the Millsite 20 Limited
Liability Company. In the event this condition is
not satisfied, the City Council's approval of the
final plat for the Property is negated. The final
plat for the Property will not be recorded until
this condition is satisfied.
4. Title Policy. A title commitment of 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
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, 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 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 and/or the District, or to protect the City's
and/or the 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 period 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, street and creekscape improvements, and necessary
appurtenances as shown on the subdivision plat and the associated
construction documents (the "Public Improvements") as approved by
the Public Works Director of the City, and 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, and
the preliminary estimated costs of these improvements (or
procedures for estimating such costs) 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 Public Works Director 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
Public Works Director (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 appropriate 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
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 paragraphs 3 and 6 of this
Agreement, including the inspections hereof, unless otherwise
indicated, shall be performed on or before May 30, 1997, 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 Public Works Director or her designee, and where
appropriate the Manager of the District, shall inspect the
improvements and certify with specificity 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 Public Works Director, 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.
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 bill 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 Gilpin 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 fifty percent (150%) 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.
The estimated costs of the Public Improvements shall be a
figure mutually agreed upon by the Developer and the City's
Public Works Director, and where appropriate the Manager of the
District, as set forth in Exhibit C. If, however, they are
unable to agree, the Public Works Director's 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 costs 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 estimate 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 furnish 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 Public Works Director, 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 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 indemnity 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
provisions 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 Gilpin 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 addresses of the parties herein set forth. All notices so
given shall be considered effective seventh-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: Rebecca Davidson
Public Works Director
City of Black Hawk
P.O. Box 17
Black Hawk, Colorado 80422
With copy to: James S. Maloney, Esq.
Black Hawk City Attorney
Hayes, Phillips & Maloney, P.C.
1350 17th Street, Suite 450
Denver, Colorado 80202
Notice to the
District: James Kirk
Black Hawk/Central City
Sanitation District
P.O. Box 364
Black Hawk, Colorado 80422
Notice to the
Developer: Alan L. Mayer, Esq.
General Counsel
Hemmeter Enterprises, Inc.
1700 Lincoln, 49th Floor
Denver, Colorado 80203
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 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 assignments 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 Gilpin 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 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: /s/
Kathryn E. Eccker, Mayor
THE BLACK HAWK/CENTRAL CITY
SANITATION DISTRICT
By: /s/
Name: David D. Stellman
Title: President
MILLSITE 27, INC.
By: /s/
Name: Alan L. Mayer
Title: Vice-President and
Secretary
MILLSITE 20 LIMITED LIABILITY COMPANY
By: /s/
Name: David D. Stellman
Title: Member/Manager
EXHIBIT C
ESTIMATED COST OF PUBLIC IMPROVEMENTS
Public Improvements:
27. Fire hydrant and eight-inch (8") water loop connection
line from Chase Street as approved by the City Public
Works Director. The preliminary construction cost
associated with this construction is forty-eight
thousand and eighty-seven dollars (48,087).
Construction of the improvements will be completed
during Phase I prior to July 30, 1996. Detail for the
preliminary cost of this construction appears on
Appendix 1 hereto.
28. 8 foot wide concrete Creekscape walkway from SilverHawk
Casino to Selak Street as shown on the Site Plan
submittal drawing A 1.2. The preliminary construction
cost associated with this construction is thirteen
thousand six hundred and twenty-eight dollars
($13,628). Construction of the improvements will be
completed during Phase II prior to May 30, 1997.
Detail for the preliminary cost of this construction
appears on Appendix 1 hereto.
29. The Developer shall construct a left-hand turn lane on
north-bound 119 to Chase Street according to the plans
and specifications approved by the Colorado Department
of Transportation and/or the Public Works Director for
the City (the "Left-Hand Lane"). The Developer intends
to construct a parking garage in two phases, the first
phase of which shall not exceed 440 spaces. Prior to
the issuance of any building permit for the second
phase of the parking garage, the Developer shall
provide to the City Public Works Director the plans and
specifications for the Left-Hand Turn Lane. Upon the
approval by the City Public Works Director of the
estimated preliminary construction costs associated
with the Left-Hand Turn Lane, the Developer shall
provide the City with an irrevocable letter of credit
in an amount equal to 110% of the estimated preliminary
construction costs of the Left-Hand Turn Lane. The
City shall not issue a Building Permit for phase two of
the parking garage until these requirements are
satisfied.
EXHIBIT D
FORM -- IRREVOCABLE LETTER OF CREDIT
[INSERT DATE]
City of Black Hawk
P.O. Box 17
Black Hawk, Colorado 80422
Attn: Mayor and City Attorney
Gentlemen:
We hereby establish our Irrevocable Letter of Credit in your
favor in the amount of $(total public improvements). The purpose
of this Letter of Credit is to secure performance of a
Subdivision Agreement for (name of subdivision), dated ________,
199__, between the City of Black Hawk and (name of Developer)
(the "Developer").
You are hereby authorized to draw on sign on (name of
financial institution), by drafts, up to the aggregate amount of
$(total public improvements).
The sole condition for payment of any draft drawn against
this Letter of Credit is that the draft be accompanied by a
letter, on the City's letterhead, signed by the Mayor or her
designee, to the effect that the Developer is in default of
Developer's obligations pursuant to the Subdivision Agreement.
We hereby agree with drawers and endorsers, and bona fide
holders of drafts negotiated under this Letter of Credit, that
the same shall be duly honored upon presentation and delivery of
the documents as specified above.
This Irrevocable Letter of Credit shall expire (fourteen
(14) months after improvement completion date shown in
subdivision agreement) provided that (name of financial
institution) has given the City sixty (60) days prior written
notice of the impending expiration.
Signed this ___________ day of __________________, 199__, on
behalf of (name of financial institution).
By:
Title: (President or Vice President)