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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