HomeMy WebLinkAbout05833ORDINANCE NO. 5833
AN ORDINANCE APPROVING A CONTRACT AND ESCROW
AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORA-
TION AND HOLYSTONE CORPORATION, A COLORADO
CORPORATION RELATING TO THE DEVELOPMENT OF
WALKING STICK MASTER PLAN AREA AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE
SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Contract and Escrow Agreement dated October 25, 1993
between Pueblo, a Municipal Corporation and Holystone Corporation,
a Colorado corporation relating to the development of Walking
Stick Master Plan Area, copies of which are attached hereto and
incorporated herein, having been approved as to form by the City
Attorney, are hereby approved.
SECTION 2
The President of the City Council is authorized to execute
the Contract and Escrow Agreement in the name and on behalf of the
City and the City Clerk is directed to affix the seal of the City
to the Contract and attest same.
INTRODUCED: October 12, 1993
By CHRIS WEAVER
Councilperson
ATTEST: APPROVED:
C y Cler W Pre si nt of City Council
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is entered into this day of December, 2010, by
the City of Pueblo, a Municipal Corporation ( "Pueblo "), and Encore Communities USA, LLP, a
Colorado Limited Liability Company ( "Encore ")
RECITALS
WHEREAS Pueblo and Holystone Corporation, a Colorado corporation, entered into a
contract and escrow agreement dated October 25, 1993, relating to the development of Walking
Stick Master Plan Area and construction of traffic improvements ( "Traffic Improvements
Agreement "), and
WHEREAS, Pueblo and Walking Stick U S Limited Partnership, a Colorado limited
partnership, entered into a contract and escrow agreement dated November 28, 1994, relating to
the development of Walking Stick Master Plan Area ( "Master Plan Area ") and construction of
roadways known as Cedarweed Boulevard and Walking Stick Boulevard ( "Boulevards
Agreement "), and
WHEREAS, Encore has constructed and developed infrastructure improvements
including roadways and traffic improvements within a portion of the Master Plan Area, pursuant
to a subdivision improvements agreement approved by Pueblo, upon the real property known as
Walking Stick Vista Filing No 1 in the City of Pueblo, and
WHEREAS, Pueblo holds a total of approximately $295,500 66 in an escrow account of
monies paid in accordance with the Traffic Improvements Agreement as security for construction
of the Transportation Improvements described therein, and
WHEREAS, Pueblo holds a total of approximately $95,372.95 in an escrow account of
monies paid in accordance with the Boulevards Agreement as security for timely construction of
the Boulevards described therein, and
WHEREAS, Pueblo has determined that, having installed a portion of the Boulevards,
Encore may be entitled to receive payment in the amount of $28,116 00 which is 30% of the
balance of $295,500 66 in an escrow account of monies paid under the Boulevards Agreement;
and
WHEREAS, Pueblo has determined that Encore may be entitled to receive a payment in
the amount of $112,290 00 which is 38% of the balance of $295,500 66 in an escrow account of
monies paid under the Traffic Improvements Agreement; and
WHEREAS, Pueblo desires an indemnification from Encore in consideration for it
releasing monies from the escrow accounts for the Traffic Improvements Agreement and
Boulevard Agreement.
NOW THEREFORE in consideration of Pueblo disbursing monies from the escrow
accounts for the Traffic Improvements Agreement and Boulevard Agreement to Encore and
other good and lawful consideration, Encore agrees to indemnify Pueblo as follows
TERMS
(A) Encore agrees to indemnify, defend, and hold harmless Pueblo, its employees,
agents, successors, attorneys and assigns, from and against any and all damage, claim, liability,
or loss, including reasonable attorney and other fees, arising out of or in any way connected to
Pueblo disbursing monies to Encore from the aforesaid escrow accounts for the Traffic
Improvements Agreement and Boulevard Agreement including any and all liability, obligations,
losses, damages, penalties, claims, actions, suits, costs and expenses (including its reasonable
attorney fees) of whatever kind or nature which may be imposed on, incurred by, or at any time
asserted against Pueblo in any way relating to or arising out of Pueblo disbursing monies from
the escrow accounts for the Traffic Improvements Agreement and Boulevard Agreement to
Encore
(B) If Pueblo is made a party defendant to any litigation concerning Pueblo disbursing
monies to Encore from the escrow accounts for the Traffic Improvements Agreement and
Boulevard Agreement, then Encore shall indemnify, defend and hold Pueblo harmless from all
liability by reason of said litigation, including reasonable attorney fees and expenses incurred by
Pueblo in any such litigation, whether or not any such litigation is prosecuted to judgment. If
Pueblo commences an action against Encore to enforce any of the terms hereof or because of the
breach by Encore of any of the terms hereof or for the recovery of any sum secured hereby,
except in cases where the court finds that Pueblo has been guilty of wrongful, tortuous conduct
or has acted in bad faith, then Encore shall pay to Pueblo its reasonable attorney fees and
expenses, and the right to such attorney fees and expenses shall be deemed to have accrued on
the commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment. If Encore breaches any term of this Indemnification Agreement, Pueblo
has the right to employ legal counsel to protect its rights hereunder or to obtain equitable relief
and damages, and in the event of such employment following any breach by Encore, Encore
shall pay Pueblo's reasonable attorney fees and expenses incurred by Pueblo, whether or not an
action is actually commenced against Encore by reason of such breach.
Executed at Pueblo, Colorado the day and year first above written.
o. Wit
[SE £ ;)
,;05.031., ' \ t LO , 4', PUE t 0, , w umcipa Corporation
V
am. ',` -�'
AT ./ -- ' . '
', . �:r "! %`.m °',- ,r te BY i.
--�irt ' CLERK 7 CI MANAGER
Encore Communities USA, LLP
BY �_
PRESIDtNT
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this lO day of
December, 2010, by Larry Belkin, as President of Encore Communities USA, LLP
Witness my hand and official seal
,�y commission expires 4 IQ Cp (
Notary Public
,
i ; � Vi i, 9, ?�
STATEMENT OF AUTHORITY
Pursuant to C.R.S §38 -30 -172, the undersigned hereby executes this Statement of Authority on behalf
of E-A)CDRC G e/ 1/A)/ 7Z //5,4
a, 4,. ///iI7i2 LI'kV / /7Y A412 rAQ.5 ,9 //° , an entity other than an individual, capable of
holding title to real property (the "Entity "), and states as follows
The name of the Entity is !/�� Co /// gC//1/ T/ �3 /./S /-� J L-
•
(state type of entity and state, country or other governmental authority under whose laws such entity is formed)
The mailing address for the Entity is 710 ase /C/.-O/ "- 4L Udo see 7e" ) or
,a6 GO 4
The name or position of the person authorized to execute instruments conveying, encumbering, or other
affecting title to real property on behalf of the Entity is 2 fire / /3 L Km
The limitations upon the authority of the person named above or holding the position described above to
bind the Entity are as follows A) a ,J
(if no limitations, insert `None')
Other matters concerning the manner in which the Entity deals with any interest in real property are
(if no other matters, leave this section blank)
EXECUTED this 6 day of /3r /eX , / d
Signature r'✓ P 1Q�C i4 c�- •
Name (typed or printed) z / iPtr7 - /A) •
Title (if any) "'ZS/1 7— •
STATE OF Cohyrc&c(O )
) ss.
COUNTY OF Pu O )
The foregoing instrument was acknowledged before me this (D day of 4 e Ce4YI .6.Q, .
Cpl by LAY Y u &e 1 , on behalf of COV('
CDY nvhi t " US , a s l-'v-e crd ev0 -
Witness my hand and official seal
My,,comm.i i'b ;gxpires. y 1 0 - to 1 1 • _DA
t s.,.� ` � }' Notary Public 0
1 �^,
t Y ^Ct
DPW
0217/01,,
CONTRACT
THIS CONTRACT is entered into the 25th day of October, 1993
between Pueblo, a municipal corporation, 1 City Hall Place, Pueblo,
Colorado (herein "City ") and Holystone Corporation, a Colorado
Corporation, 301 North Main Street, Suite 207, Pueblo, Colorado
81003 (herein "Holystone "), WITNESSETH:
WHEREAS, City and Colorado State Board of Agriculture entered
into an Annexation Agreement Case No. A -90 -1 dated June 25, 1990
and recorded August 7, 1990 in Book 2510, at Page 564 of the
records of the County Clerk and Recorder (the "Annexation
Agreement "), and
WHEREAS, pursuant to Article II the Annexation Agreement
certain costs of construction expended by the City are to be
reimbursed or a mutually acceptable contract will be entered into
for such reimbursement before any rezoning or subdivision of any
land within the Master Plan Area (as defined in the Annexation
Agreement) is finally approved by Ordinance of the City Council of
City, and
WHEREAS, Holystone has submitted and is proceeding with the
rezoning of a parcel of approximately 71 acres of land described in
attached Exhibit " A " (the "Phase I and Special Area Plans for a
portion of Phase I which is located within the Master Plan Area,
and
WHEREAS, pursuant to Article I(4) of the Annexation Agreement
the developer of the Master Plan Area is obligated to construct and
install transportation improvements requ:.red by the development of
the Master Plan Area, and
WHEREAS, City and Holystone are willing to enter into a
contract with respect to the reimbursement of costs to the City and
deposit of funds for transportation improvements required by the
Annexation Agreement;
NOW, THEREFORE, in consideration of the foregoing and mutual
covenants contained herein, City and Holystone agree as follows:
A. EFFECTIVE DATE
1. Effective Date This Contract shall become effective upon
the recording of either or both of the Plats for Walking Stick
Estates Filing No. 1, a Special Area P.I.-an and Villa at Walking
Stick, a Special Area Plan (the "Special Area Plans ").
B. REIkBURSEMENT
1. Reimbursement Amounts The total costs to be reimbursed
the City pursuant to Article II of the Annexation Agreement is
$334,835.00 (the "Reimbursement Costs "), including the costs of
$99,051.00 for sanitary sewer installation (the "Sewer Costs ").
2. Method of Reimbursement Holystone will reimburse the
City the Reimbursement Costs as follows:
(a) Upon the initial sale of each lot in the Special
Area Plans, whether individual lot, multiple lots, or en mass, or
in any other subdivision or special aria plan developed in the
Master Plan Area by Holystone, Holystone shall pay to the City the
sum of $500.00 for each lot so sold until the Reimbursement Costs,
less the amounts deducted therefrom under (b) and (c), if any, are
paid in full.
2
(b) Upon the installation and construction of
improvements in the proposed public park located westerly of
Cedarweed adjacent to the Special Area Plans (the "Park
Improvements ") , the City will credit against and deduct the cost of
the Park Improvements from the Reimbursement Costs. The Park
Improvements and costs thereof shall be :mutually agreed to by the
City and Holystone prior to their installation and construction.
(c) As a condition precedence to and upon the final
passage of an ordinance by the City Council approving Holystone's
development of approximately 17 acres of land located south of
City's golf course maintenance building, west of College Road, and
east of Walkingstick Golf Course, Holystone will pay to the City in
full the Sewer Costs and upon receipt thereof City will deposit the
amount thereof into the City Sewer Utility Fund and will credit
against and deduct the amount thereof from the balance of
Reimbursement Costs.
(d) Notwithstanding the foregoing (a), (b) and (c), the
unpaid balance of the Reimbursement Costs shall be due and payable
to the City by Holystone on or before August 1, 1999.
3. Release The City shall release the lots from the
provisions of Article II of the Annexation Agreement and Section B
of this Contract upon payment of Five Hundred Dollars ($500.00) for
each lot sold. The Director of Public Works is authorized to
execute and issue such releases in the name of the City. The
Release shall be in a form acceptable for recordation, including
3
but not limited to the legal description of the specific lots to be
released. Except as released, until the reimbursement costs have
been paid to the City in full, the provisions of Article II of the
Annexation Agreement shall remain in effect and binding upon the
land within the Master Plan Area and the parties to the Annexation
Agreement and this Contract.
4. Default If Holystone shall default in the performance of
any provision of Section B. Reimbursement of this Contract,
including the making of any payment provided for herein, and such
default shall not be cured within thirty (30) days after written
notice specifying the default is given by the City to Holystone,
the balance of the Reimbursement Costs plus interest at the rate of
12% per annum from the date of default shall without further notice
immediately become due and payable by Holystone to the City.
C. DEPOSIT OF FUNDS
1. Deposit The approved traffic engineering studies for the
Master Plan Area identify certain transportation improvements which
will be required for the development of the Master Plan Area but
which may not be immediately required if the Master Plan Area is
developed in phases. Holystone proposes - :o develop the Master Plan
Area in phases. Therefore, the parties; agree that in order to
assure funding for the installation and construction of the
Transportation Improvements by the developer of the Master Plan
Area, a specified amount upon the sale of each residential lot and
4
acre of commercial land within the Master Area Plan shall be
deposited in an interest - bearing escrow account. Holystone shall
deposit into the escrow account the following amounts: $1000 for
each residential lot and $2000 for each acre of commercial land
(pro -rated for less than one acre) sold by Holystone. The amount
to be deposited shall be deposited at the time of the initial sale
of each lot or acre in an approved subdivision or special area plan
whether by individual lot or acre, or multiple lots or acres, or en
mass. No building permit will be issued for any residential lot or
commercial land within the Master Area Plan until the required
deposit therefor has been made. The agreement for the escrow
account shall be in substantially the same form and content as the
Escrow Agreement attached as Exhibit "B ". Funds deposited in the
escrow account and all earnings thereon shall be used solely for
the construction and installation of the Transportation
Improvements. The Transportation Improvements and their estimated
costs are set forth in attached Exhibit 'C ".
2. Deposit Adjustment On January 1, 1995 and on January 1 of
each subsequent year, the amounts to be deposited shall be
increased or decreased by a percentage equal to the percentage
increase or decrease of the Consumer Price Index for the preceding
year. The Consumer Price Index shall be the Consumer Price Index
for all urban consumers (CPI -U) . All Items (1982 -1984 = 100)
published by the Bureau of Labor Statistics of the United States
Department of Labor (the "Bureau "). If the Bureau ceases to
publish the CPI -U or materially changes its computation, the City
and Holystone shall accept comparable statistics regarding the
purchasing power of the consumer dollar as published by a
responsible financial periodical or recognized authority to be then
mutually agreed upon.
3. Use of Deposit The funds on deposit in the escrow
account shall be first used for the installation and construction
of all or part of 47th Street within the Master Plan Area ( item
B(1), Exhibit "C"). Thereafter, funds on deposit in the escrow
account will be used for construction and installation of
Transportation Improvements required for the reasonable development
of the Master Plan Area as mutually agreed upon between the City's
Director of Public Works (the "Director ") and Holystone based upon
traffic engineering studies. If a dispute develops between the
Director and Holystone regarding the use of the funds in the
escrow, Holystone shall submit to the Director and the City Manager
a written notice specifying the existence and nature of the
dispute. If the Director and Holystone are unable to resolve the
dispute within thirty (30) days after Holystone's notice to the
City, the City and Holystone shall submit the dispute to a mutually
acceptable qualified traffic engineer for resolution by non - binding
arbitration. All costs of such arbitration including the
arbitrator's expenses and fees shall be shared equally by the City
and Holystone provided the City and Holystone shall pay their own
1.1
costs and expenses including attorney fees and expert witness fees
associated with such arbitration. The decision of the non - binding
arbitration shall be made within 120 days. If Holystone or the
City refuse to accept the determination by non - binding arbitration,
then the City Planning and Zoning Commission, after full
consideration of the determination by non- binding arbitration and
such other matters as it shall deem relevant, shall make a final
determination.
4. Developer's obligation The obligation to install and
construct the Transportation Improvements is the obligation of the
developer of the Master Plan Area and nct the obligation of the
City. If funds on deposit in the escrow account are inadequate for
completion of the Transportation Improvements, Holystone shall be
responsible for their completion. If Holystone directly pays for
the installation and construction of any of the Transportation
Improvements, Holystone shall give written notice thereof to the
City and after receipt of such notice by City, Holystone shall be
immediately reimbursed from the escrow account to the extent that
(i) Holystone has advanced funds for such Transportation
Improvements and (ii) available funds area either on deposit in the
escrow account or are deposited in the future in the escrow
account.
5. Limited Application Holystone and City acknowledge and
agree that other traffic related improvements within the Master
Plan Area associated with future subdivisions and /or special area
7
plans will be required as the Master Plan Area is developed in
phases. Those other traffic related improvements will be installed
and constructed as the Master Plan Area is developed and that this
Agreement relates only to the Transportation Improvements described
in Exhibit "C ".
6. Modifications The Transportation Improvements described
in Exhibit "C" include all street improvements through or adjacent
to property outside the approved Master Plan. If changes in the
approved Master Plan require modifications to the Transportation
Improvements or other traffic related improvements, Holystone and
City shall negotiate in good faith regarding the modifications of
the terms and provisions of this Contract and adjustments in the
Transportation Improvements.
7. Cost Recovery To the extent the Transportation
Improvements include street improvements through or adjacent to
property outside the Master Plan Area which have been constructed
by Holystone, Holystone shall be eligible for cost recovery as
provided under Section 12 -4 -129 of the 1971 Code of Ordinances of
the City and as same may be subsequently amended but shall not be
eligible for any cost recovery from the City.
8. Termination of Escrow If Holystone for whatever reason
ceases to be the developer of the Master Plan Area, Holystone's
right, title and interest in and to the escrow account shall
automatically terminate, except to the extent Holystone is entitled
to reimbursement under Paragraph 4 hereof.
8
9. Secondary Access Street Holys }one acknowledges and
agrees that a secondary access street will be required for any
development of the Master Plan Area which generates traffic to
Cedarweed Boulevard in addition to the traffic to be generated by
the proposed development of Phase I.
10. Release The City shall release the lots and commercial
land from the provisions of Article I, Section 4 of the Annexation
Agreement for Transportation Improvements outside the Master Plan
Area and Section C. Deposit of Funds of this Contract upon payment
of One Thousand Dollars ($1,000.00) for each residential lot or Two
Thousand Dollars ($2,000.00) for each acre of commercial land. The
Director of Public Works is authorized to execute and issue such
releases in the name of the City. The release shall be in a form
acceptable for recordation, including but not limited to the legal
description of the specific property to be released.
D. MISCELLANEOUS PROVISIONS
1. Invalidity If any provision of this Contract is
determined to be invalid or unenforceable such determination shall
not affect the validity of any other provision hereof.
2. Entire Understanding This Contract incorporates and
includes all understandings and agreements between the parties with
respect to the subject matter hereof and shall be governed by and
construed in accordance with the laws of the State of Colorado.
9
3. Litigation In the event of litigation arising out of
this Contract, the Court shall award to the prevailing party all
reasonable costs and expenses including attorney fees.
4. Delay. No delay or omission by the City to exercise any
right or remedy shall impair any such right or remedy or constitute
a waiver thereof.
5. Binding Effect The covenants and agreements set forth
herein shall be construed to be covenants running with the land in
the Master Plan Area and shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, except that this Contract shall not be construed to impose
upon The Colorado State Board of Agriculture the obligation to
assume the financial obligations of the developer or Holystone
hereunder unless The Colorado State Board of Agriculture declares
its intention to do so by resolution or otherwise becomes the
developer of land within the Master Plan Area.
6. Conflicts If any provision of this Contract conflicts
with any provision of the Annexation Agreement, the provisions of
this Contract shall supersede and control over the provisions of
the Annexation Agreement to the extent of such conflict.
Executed at Pueblo, Colorado the day and year first above
written.
[SEAL] PUEBLO, A Municipal Corporation
ATTEST: B
City clerk' Presi ent of the City Council
10
LAND DES CRIPTION OF PARCEL TO R Et-ONE
A portion of the SW 114 and the W 112 of the SE 1/4 of Section 8,
Township 20 South, Range 64 West of the 6th P.M. being more
particularly described as follows:
Considering the South line of said Section 8 to bear
N.88 "- 45' -07 "E. and all bear -inks contained herein being relative
thereto.
Beginning at the Southwest corner of said Section 8; thence
N.00 "- 46'- 30 "E., along the West line of the said SW 1/4 of Section
8, a distance of 1838.72 feet; thence Easterly, along the arc of a
curve to the right whose center bears S.32'- 56' -29 "E. and whose
radii-is is 230 feet, a distance of 313.28 feet; thence
S.44 53'- 57 "E., a distance of 51.97 feet; thence Northeasterly,
along the arc of a curve to the right whose center bears
5.46 "- 48' -34 "E. and whose radius is 900 feet, a distance of 278.53
feet; thence N.60 "- 55'- 20 "E., a distance of 240.00 feet; thence
Northeasterly, along the arc of a curve to the left whose radius is
960 feet, a distance of 374.29 feet.; thence Southeasterly, along
the arc of a curve to the left whose center bears N.37 "- 47' -33 "E.
and whose radius is 760 feet, a distance of 479.59 feet; thence
S.88 "- 21'- 48 "E., a distance of 170.00 feet; thence Southeasterly,
along the arc of a curve to the right whose radius is 1240 feet, a
distance of 658.72 feet; thence S.57 "- 55'- 35 "E., a distance of
318.00 feet; thence Southeasterly, along the arc of a curve to the
left whose radius is 760 feet., a distance of 319.35 feet; thence
S.07 "- 59'- 52 "W., a distance of 210.37 feet; thence S.45'-49'-40"W.,
a distance of 410.00 feet to the North boundary line of
Walkingstick Golf Course; thence along the boundary of said Golf
Course the following ten (10) courses:
1.
N.78 "- 05'- 57 "W., a
2.
N.89 "- 32'- 09 "W., a
3.
S.81 "- 53'- 21 "W., a
4.
N.89 '- 40'- 46 "W., a
5.
S.49 '- 38'- 00 "W., a
6.
5.84 "- 42'- 42 "W., a
7.
S.01 '- 21'- 26 "E., a
S.
S.22 '- 47'- 34 "E., a
9.
S.02 "- 07'- 44 "E., a
10.
S.27 '- 04'- 34 "E., a
to the said South
distance
distance
distance
distance
distance
distance
distance
distance
distance
distance
line of S
of
of
of
of
of
of
of
of
of
of
ect
226.94 feet;
415.25 feet;
316.49 feet;
406.94 feet;
536.57 feet;
213.25 feet;
201.80 feet;
145.99 feet;
244.82 feet;
244.54 feet
ion 8;
thence S.88 "- 45' - 07N. , along said South l ine, a distance of 746.06
feet to the Point of Beginning.
Containing 71.094 acres.
Prepared by: KLH ENGINEERING CONSULTANTS, INC.
111 East 5th Street
Pueblo, Colorado 81003
June 21, 1993
92 100 00
EXHIBIT "A"
ESCROW AGREEMENT
THIS ESCROW AGREEMENT entered into this 25th day of October,
1993 by and between Pueblo, a municipal corporation, 1 City Hall
Place, Pueblo, Colorado (herein "City ") and Hblystone Corporation,
a Colorado corporation, 301 North Main Street, Suite 207, Pueblo,
Colorado, 81003 (herein "Holystone "), WITNESSETH:
1. Holystone hereby appoints City as escrow agent to
receive funds to be deposited by Holystone pursuant to Section C.
Deposit of Funds of the Contract between City and Holystone of
even date herewith, a copy of which is attached as Exhibit "A"
(the "Contract ") (the "Escrow Funds ").
2. City as escrow agent will accept the deposit of Escrow
Funds subject to the terms and conditions set forth herein.
3. The City shall invest the Escrow Funds either in U.S.
Treasury Securities or in such a manner as to maintain U.S.
federal insurance on principal invested funds and earnings. All
U.S. Treasury Securities or principal invested funds and earnings
shall be available for withdrawal without penalty within ninety
(90) days of demand. The Escrow Funds shall not at any time be
commingled with other City funds or investments. With respect to
the investment of the Escrow Funds, neither the City nor its
officers or employees shall be liable for any act it or its
officers or employees may do or omit to do while acting in good
faith and in the exercise of their own best judgment.
4. The Escrow Funds and all earnings thereon shall be used
solely for the construction and installation of the Transportation
Improvements described in Exhibit "C" to the Contract. The Escrow
Funds and their expenditure are not and shall not be construed to
be revenue or spending of the City within the purview of Article
X, Section 20 of the Colorado Constitution. The Escrow Funds
shall be released in the following manner:
(a) Holystone shall file with the City's Director of
Finance and Director of Public Works written request for release
of the Escrow Funds, describing the specific Transportation
Improvement to be installed and constructed, specifying the amount
to be released, and documenting the cost of such installation and
construction (the "Request ").
(b) City's Director of Public Works may within thirty
(30) days after receipt of the Request file with the City's
Director of Finance his written approval of the Request (the
"Director's Approval ").
(c) Upon receipt of the Request and Director's
Approval, the City's Director of Finance will release to the
person or entity designated in the Request the amount specified in
the Request.
(d) Within one hundred and twenty (120) days after
release of the requested Escrow Funds, Holystone shall file with
the City's Director of Finance and Director of Public Works
documents evidencing that the Escrow Funds have been expended for
the construction and installation of the Transportation Improve-
ment described in the Request and certificate from a qualified
engineer that the Transportation Improvement has been constructed
and installed in accordance with the approved plans and specifica-
-2-
tions therefor. If Holystone fails to file the documents and
certificate within said 120 -day period, or extended period, if
extended in writing by the City's Director of Public Works, (i)
Holystone shall be personally obligated to complete the
construction and installation of the Transportation Improvements
described in the Request and (ii) Holystone's right to have or
cause any other portion of the Escrow Funds to be released
pursuant to this paragraph 4 shall terminate and be cancelled. In
such event, all Escrow Funds shall be released only upon the
written request of the City's Director of Public Works.
5. If a dispute develops between the Director of Public
Works and Holystone regarding the use of the Escrow Funds
described in the Request, Holystone shall submit to the Director
of Public Works and the City Manager a written notice specifying
the existence and nature of the dispute. If the Director of
Public Works and Holystone are unable to resolve the dispute
within thirty (30) days after Holystone's notice to the City, the
City and Holystone shall submit the dispute to a mutually accept-
able qualified traffic engineer for resolution by non - binding
arbitration. All costs of such arbitration including the
arbitrator's expenses and fees shall be shared equally by City and
Holystone, provided City and Holystone shall pay their own costs
and expenses including attorney and expert witness fees associated
with such arbitration. The decision of the non - binding arbitra-
tion shall be in writing and made within 120 days. If Holystone
or the City refuse to accept the determination by non - binding
arbitration, then the City Planning and Zoning Commission, after
-3-
full consideration of the determination by non - binding arbitration
and such other matters as it shall deem relevant, shall make a
final determination and the Director of Finance is authorized to
release the Escrow Funds described in the Request pursuant to the
written final determination of the City Planning and Zoning
Commission.
6. If Holystone shall for any reason cease to be the
developer of the Master Plan Area, its rights, title and interest
in this Escrow Agreement and Escrow Funds shall automatically
terminate. Any subsequent developer of the Master Plan Area shall
be substituted for Holystone hereunder and shall have the same
rights and obligations of Holystone hereunder upon such
developer's written acceptance of this Escrow Agreement.
7. This Escrow Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and
assigns.
Executed at Pueblo, Colorado the year and date first above
written.
PUEBLO, A MUNICIPAL CORPORATION
BY z_�e Z -
. J
President of the - City Council
HOLYSTONE CORPORA ILL
By
President
f'
TF 69.41 -4-
TRANS IMPROVEMENTS
A. Traffic Controls
1. Right turn lane on Jerry Murphy to Highway 47 at an
estimated cost of $10,000 without signals.
2. Double left turn ramp off Highway 47 northbound onto
Jerry Murphy at an estimated cost of $47,000 without
signals.
3. Three traffic signals at the following locations:
Bluestem and Jerry Murphy, Desert Flower and Walking Stick,
and Uravan and Walking Stick at an estimated cost of $80,000
each or a total of $240,000.
B. Major Road Construction
1. 47th Street within the Master Plan Area including
curb, gutter, median, base, and paving at an estimated cost
of $94.00 per foot for 5,520 linear feet or a total of
$518,880.
2. 47th Street West of Master Plan Area to the east
boundary of the University Hills Subdivision First Filing at
an estimated cost of $94.00 per foot for 520 linear feet or
a total of $48,880 reduced by any recovery by the City based
upon any other collateralization or contribution from RTC or
owners of property adjacent to this portion of 47th Street..
3. If Troy remains the easterly boundary line of the
Master Plan Area as shown on the approved Master Plan, Troy
Avenue including curb, gutter, median, base and paving at an
estimated cost of $94.00 per foot for 3,922 linear feet or a
total of $373,368.
EXHIBIT "C"
[SEAL] HOLYSTOWE CORPQ��'I03V
A Co1oradr,-- Cor�;bration
ATTEST: By
Sec tary ,PYe . --
APPROVAL BY STATE BOARD OF AGRICULTURE
Effective as of the date the "Phase One" property is taken
down by Holystone Corporation, pursuant to the terms of the Option
Agreement between the SBA and Holystone Corporation, the State
Board of Agriculture (The "SBA") hereby approves, accepts and
agrees to the amendments to the Annexation Agreement contemplated
in this Contract, and also agrees that the covenants of this
contract are covenants running with and binding upon the land in
the Master Plan Area and the SBA its successors and assigns except
as limited by paragraph D (5) of the Contract.
THE COLORADO STATE BOARD OF
AGRICULTURE, a university
governing board acting by and
through its duly appointed
attorney -in -fact, the University
of Southern Colorado, an
.� institu ' on of higher f edication
ATTEST: - .� .,
By
Executive Director Dr. Robert C. Shirley, Presiden
Planning and Development as attorney -in -fact for the
Colorado State Board of
Agriculture, a university
governing board