HomeMy WebLinkAbout957674DEVELOPERS AGREEMENT
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An Agreement made this 1th day of July, 2006, by and between the Town of Afton, a
Wyoming Municipal Corporation (the "TOWN P.O. Box 310, Afton, WY 83110 and Next
Step Engineering, Design and Construction, LLC, a Wyoming limited liability company (the
"DEVELOPER whose address is PO Box 1662, Afton, WY 83110.
WITNES SETH:
WHEREAS, DEVELOPER is the owner, in equity, of a certain tract of land in the
County of Lincoln, State of Wyoming, which land, known as The Estates at Valli -Vu Addition to
the Town of Afton "Addition and is more particularly described in Exhibit `B' attached hereto
and by this reference made a part hereof; and,
WHEREAS the Addition borders the TOWN's existing nine hole golf course, and
WHEREAS DEVELOPER desires to improve the TOWN's existing golf course and
expand it to an eighteen hole course at its expense and incorporating its property as well as the
TOWN's property into the final design, and subsequently donate the entire, improved eighteen
hole course to the TOWN, as its interests appear; and
WHEREAS, DEVELOPER desires to develop a Subdivision within the Addition
bordering the expanded golf course within the TOWN and has submitted a plat bearing the
Subdivision name described in the caption of this Agreement and DEVELOPER agrees to make
the improvements set forth hereafter upon its final decision and ability to convert its equitable
title to the Addition to legal title and to proceed with the development plan set forth herein; and
DEVELOPMENT AGREEME
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RECEIVED 1/18/2011 at 11:48 AM
RECEIVING 957674
BOOK: 760 PAGE: 830
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
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WHEREAS, the Town Engineer and the Town of Afton Planning and Zoning cot sa t
Commission have recommended such development be allowed subject to certain requirements and
obligations on the part of DEVELOPER; and
WHEREAS, the TOWN is willing to allow the development of the Subdivision within the
Town of Afton, Wyoming, subject to the terms and conditions of this Agreement and the Special
Conditions referenced below; and,
WHEREAS, the TOWN has authority to approve subdivision plats and the construction
of streets, utility lines and other public improvements within the TOWN;
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein,
the parties agree as follows:
1. Approval of Subdivision. The TOWN hereby approves the Subdivision plat
and agrees that upon DEVELOPER's full and complete performance of the terms and
conditions hereof, it will accept and maintain all required public facilities and improvements
shown in the improvement plans including the expanded eighteen hold golf course.
2. Improvement Plans. DEVELOPER has filed and the Town Engineer has approved a
complete set of improvement plans, "Improvement Plans showing all streets, paths, sewer
lines, waterlines, street signs, irrigation lines, fire protection, and any other required public
improvements contemplated within the Subdivision including the golf course expansion. The
Improvement Plans also show the proposed location of other public utilities (i.e. telephone and
natural gas) affected by the development of the Subdivision. Such Improvement Plans are
incorporated herein by reference as though set out in full.
DEVELOPMENT AGREEMENT
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performance of the work governed by such permits.
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5. Inspection. The TOWN at any time may enter the Addition to inspect the
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3. Construction of Public Improvements. Unless otherwise agreed in the Special
Conditions, DEVELOPER will at its expense, design and construct all public improvements
shown in the Improvement Plans. Unless otherwise agreed in writing by the Town Engineer,
DEVELOPER will construct all public improvements within the Subdivision in strict accordance
with the Improvement Plans, the Standard Engineering Drawings and Specifications "Standard
Specifications and the Afton Development Ordinance "ADO in effect at the time the
construction is accomplished. The Standard Specifications and ADO are incorporated herein by
reference as though set out in full.
4. Permits. DEVELOPER shall obtain all right -of -way, excavation or other permits
required by local ordinance and comply with all requirements therein with respect to the timely
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construction of the improvements. The DEVELOPER agrees to pay up to but not in excess of
Five Thousand Dollars ($5,000.00) toward the cost of the engineering inspection. 'E /WA
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6. Corrected Improvement Plans. Prior to acceptance of the improvements,
DEVELOPER will file "As Constructed" Improvement Plans "Corrected Improvement Plans
with the Town Engineer. Such Corrected Improvement Plans shall be prepared by the Project
Engineer and shall show the actual constructed location of all public improvements within the
Subdivision including the horizontal and vertical location of all water, sewer and irrigation lines,
individual building service lines, and street grades. Such Corrected Improvements Plans shall also
specifically show all changes between the original Improvement Plans and the public
improvements as actually constructed. The Project Engineer shall also certify upon the
DEVELOPMENT AGREEMENT
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Corrected Improvement Plans that such Plans correctly show all public improvements as actually
constructed and that such public improvements have been constructed in accordance with the
Standard Specifications and ADO in effect at the time such construction was accomplished.
7. Filing of Subdivision. All required improvements must be completed and accepted
by the TOWN prior to filing any phase of the final plat. In lieu of completion of the required
improvements, the DEVELOPER shall submit a bond, cash deposit, certified check, negotiable
bond or irrevocable bank letter of credit to the TOWN for One Hundred Twenty Five Percent
(125 of the estimated costs of all public improvements required by the TOWN prior to the
filing of the plat. This bond or cash deposit, certified check, negotiable bond or irrevocable bank
letter of credit shall be 125% of the estimated costs of construction of specific improvements
(described in the attached exhibits), as estimated by the Project Engineer and approved by the
TOWN. The amount of the bond (or equivalent) required is In the event the
DEVELOPER fails to complete construction of a public improvement within a period of time as
required under the conditions of this agreement, the TOWN may proceed to have such work
completed. In order to accomplish this, the TOWN shall appropriate the bond, cash, deposit,
certified check, irrevocable letter of credit, or negotiable bond. Upon completion of the project,
final inspection, approval and acceptance of the improvements and the DEVELOPER's delivery
of Corrected Improvement Plans, the TOWN will return the bond, cash deposit, certified check,
irrevocable letter of credit or negotiable bond. The Town Engineer hereinafter shall accept the
improvements in writing. Except as otherwise expressly provided in the Special Conditions,
upon final acceptance of the Subdivision, the TOWN shall assume ownership and control of all
public facilities within any dedicated street or public utility right -of -way within the Subdivision.
DEVELOPMENT AGREEMENT
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Acceptance of the Subdivision shall not be deemed as a waiver of DEVELOPER' s failure to
perform fully and completely the terms and conditions hereof or as a waiver or release of the
warranty set forth below.
8. Improvement of Golf Course and Existing Golf Course. DEVELOPER may begin
construction of a golf course on its own property any time he has sufficient legal authority to
enter and modify the property without involvement by the TOWN. However, before
DEVELOPER may begin modification of the TOWN's existing golf course improvements
referenced herein, DEVELOPER is required to submit a bond, cash deposit, certified check,
negotiable bond or irrevocable bank letter of credit to the TOWN for One Hundred Twenty Five
Percent (125 of the estimated costs which, should DEVELOPER fail to complete the eighteen
hole golf course, would be necessary to return the existing golf course to a state equivalent to its
current condition, fully usable by the TOWN as currently used. The amount of the bond required
is In the event the DEVELOPER fails to complete construction of the work on
the TOWN' s existing golf course within a period of time as required under the conditions of this
agreement, the TOWN may proceed to have such work completed.
9. Warranty as to Subdivision Improvements. DEVELOPER warrants by and
through the bond required that the materials and workmanship employed in the construction of
all public improvements within the Subdivision shall be good and sound and shall conform to the
Town of Afton's Public Works Standards Technical Specifications, including all otherwise
applicable future amendments and revisions. Such warranty shall extend for a period of one (1)
year after final acceptance of the improvements by the TOWN, provided nothing herein shall
limit the time within which the TOWN may bring an action against DEVELOPER on account of
DEVELOPMENT AGREEMENT
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DEVELOPER's failure to construct such improvements in accordance with this Agreement, the
Improvement Plans, Standard Specifications or the ADO. Warranty of sewer and water lines will
extend an additional one (1) year from completion of final structure within the development.
10. Subdivision Water and Sewer Main Connection Charges. Property owners
within the Addition will be required to pay the TOWN the current water connection fees at the
time of issuance of a building permit, or at such time as the TOWN can make water connections
available if it is not available at the time of the issuance of a building permit. Payment for all
model homes approved prior to installation of water /sewer facilities will be paid at the time
facilities are deemed "available" to the property regardless of the sale of the model units. All
future homes will be required to pay for connection fees at the time building permits are
approved. The TOWN will be entitled to interest and other fees associated with collection of
any delinquent water connection fees. Sewer connection fees must be paid with building permit
fees. By resolution or ordinance, the TOWN may at any time adjust the culinary water or sewer
connection and user fees for future connections.
11. Payment for design and construction of off site water and sewer main lines. In
order to facilitate this project, the DEVELOPER agrees to pay its portion of the costs of design
and construction applied to the DEVELOPER to get sewer and water lines to the property.
12. Developer's right to reimbursement. In the event the Grant for sewer and water
mains is not accepted by the Wyoming Business Council and the DEVELOPER is left
responsible for any portion the payment of the installation of the mains, the DEVELOPER shall
have the right, pursuant to the terms of this paragraph, to receive reimbursement for the costs of
installation of the sewer and water mains. In the event subsequent parcels of land are connected
DEVELOPMENT AGREEMENT
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DEVELOPMENT AGREEMENT
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to the main culinary water and sewer lines installed by DEVELOPER, the DEVELOPER shall
have the right to obtain from the subsequent developers or owners of such other parcels of land, a
proportional reimbursement of DEVELOPER' s original cost of installing the main culinary water
and sewer line based on the total number of lots in DEVELOPER' s development and the number
of lots in the other parcels connecting to the system's main line capacity. As the owner of the
culinary water system main line, the TOWN shall make the final deteHnination as to whether a
particular parcel is served by the culinary system main line. The TOWN shall have sole
discretion to refuse any request by a developer to connect to the culinary main line built by
DEVELOPER regardless of whether such main lines may have the apparent capacity to carry or
serve the additional connections. The TOWN agrees that as a precondition to allowing such
subsequent developer or owner to interconnect to the culinary water system's main line, and
prior to providing any subsequent developer with an approval or permit for the interconnection
of subsequent lots to the main line, the TOWN shall require such subsequent developer or owner
to present to TOWN a written certification from any subsequent Developer that DEVELOPER
has been properly reimbursed as provided in this paragraph 11. This reimbursement procedure
will remain in effect for a period of ten (10) years beginning on the date of this agreement.
12. Failure to Pay Fees. In the event DEVELOPER fails or refuses to pay any of
the fees, charges or costs set forth herein, the TOWN may declare the entire unpaid balance
immediately due and payable and collect such sums in manner provided by law, or may pursue
any other remedy set forth herein or as may be available at law or in equity. All such remedies
shall be cumulative and the TOWN may pursue the same separately or simultaneously, as it
deems necessary or appropriate. In the event of such acceleration, all sums due shall bear interest
at the rate established by law for judgments entered in the State of Wyoming.
13. Special Conditions.
(a) In consideration of the DEVELOPER's gift to the TOWN of the additional nine golf
holes and the improvement of the existing golf course, the DEVELOPER shall have the right to
no more than one (1) lifetime "foursome" pass per lot in the DEVELOPER's subdivision, and
one (1) lifetime "doubles" pass per condominium unit, and one lifetime "foursome" pass for Brad
Morehouse. Said passes shall be transferable to the subdivision lot owners, condominium
owners and Brad Morehouse's heirs and assigns.
(b) The DEVELOPER shall include provisions for dust abatement in all contracts with
excavation contractors.
(c) The DEVELOPER shall execute an easement providing the Town with access to, use
of the parking area, and use of the "Club House" facilities.
(d) The DEVELOPER shall lease a space the "Club House /Pro Shop" to the Town of
Afton for a term of ninety -nine (99) years at the rate of One Dollar ($1.00) per year for the
purpose of taking "green- fees" and the management of the Golf Course.
(e) The DEVELOPER shall provide for adequate storage and maintenance facilities for
the Golf Course.
14. Weed Control. DEVELOPER must comply with the Town and County ordinances
for weed control on all lots owned by DEVELOPER. Individual third -party owners of lots
within the Subdivision must comply with the Town and County ordinances for weed control on
their own lots. The Homeowners Association must comply with Town and County ordinances
DEVELOPMENT AGREEMENT
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for weed control on all common areas. All lots and common areas must be farmed with a
harvestable crop, or clipped, mowed or grazed regularly, in order to avoid a fire hazard.
15. Irrigation Facilities. DEVELOPER shall also obtain the consent of all persons or
entities that have any water right affected by the development of the Subdivision or who
otherwise exercise control over such structures. DEVELOPER will also indemnify and hold the
TOWN harmless from any action, claim, demand or cost of any kind, including attorney's fees
and court costs, arising from the relocation or reconstruction of such facilities or DEVELOPER's
failure to properly relocate or reconstruct such facilities. The DEVELOPER must have a written
agreement with the Irrigation Company.
16. Relocation of Power Lines. DEVELOPER shall relocate at its expense all existing
electric utility poles or other utility lines or fixtures necessary to construct the public street
access to this Subdivision or other public improvements shown on the Improvement Drawings.
Any modification to the public improvements shown in the Improvement Drawings or to the
construction schedule or to the construction phase limits, shall be approved by the TOWN
Engineer. Prior to said approval, revised Improvement Drawings shall be resubmitted to the
TOWN showing the proposed changes.
17. Taxes and Assessments. DEVELOPER shall pay all real property taxes and
assessments levied or assessed against any interest in real property that DEVELOPER has agreed
to convey to the TOWN pursuant to this Agreement. The DEVELOPER shall pay such taxes
and assessments prior to the acceptance of the Subdivision by the TOWN.
18. Occupancy. With the exception of the Leon and Laurell Merritt home, no building
within the Subdivision shall be used or occupied for any purpose other than for the construction
DEVELOPMENT AGREEMENT
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DEVELOPMENT AGREEMENT
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of such building or structure, unless all public improvements within the subdivision or approved
phase, have been completed and accepted by the Town Engineer. The TOWN may withhold
Certificates of Occupancy until all such work has been completed. Nothing herein shall prevent
the use of a model home for the purpose of DEVELOPER's sales and promotional efforts
provided the home is not occupied for residential purposes.
19. Default. In the event the DEVELOPER fails to comply with the terms and
conditions hereof in any material respect, the TOWN may, without further notice to
DEVELOPER, exercise any or all of the following remedies:
A. Withhold the issuance of any building permit or certificate of occupancy of any
structure located within the Subdivision;
B. Withhold the connection of water or sewer to any property located within the
Subdivision;
C. Refuse to accept public ownership and maintenance of public improvements
within the Subdivision and record a notice of such action with the Lincoln County
Recorder's office;
D. Issue a Stop Work Order for any building under construction within the
Subdivision;
E. Bring an action for damages, injunctive relief, specific performance or any other
remedy available at law or in equity;
All of the above remedies are cumulative and to the extent not wholly inconsistent with
each other, may be enforced simultaneously or separately, at the sole discretion of the TOWN.
(03840
20. Notices. Any notice required by the Agreement shall be mailed to the receiving
party at the address set forth above or such other address as may be delivered to the sending
party in writing. Such notice shall be mailed by certified mail, return receipt requested, postage
prepaid and addressed as set forth above and shall be deemed received upon its deposit in the
United States mail in such manner
21. Irrigation District Release. Prior to the acceptance of the DEVELOPER's golf
course, DEVELOPER shall obtain a letter of certification from the Dry Creek Irrigation Co.
permitting the conveyance of the irrigation rights to the TOWN for the golf course. The
certification shall state that all liens and assessments against such water being convyed by such
water delivery entity have been released.
22. Conflict with Standard Specifications. In the event of any conflict between the
terms of this Agreement or the Improvement Plans, Standard Specifications or ADO, the terms
of this Agreement or the Improvement Plans shall prevail over any contrary provision of the
Standard Specifications or ADO. In the event of any conflict between the terms of this
Agreement and the Improvement Plans, the terms of this Agreement shall prevail.
23. Covenants Appurtenant to the Land. All covenants and conditions set forth herein
shall be appurtenant to and run with the Subdivision and shall be binding upon DEVELOPER's
heirs, successors or assigns, until such time as the terms are satisfied.
24. Governing Law. This Agreement shall be governed by the laws of the State of
Wyoming.
25. Entire Agreement and Attached Documents. This writing evidences the final and
complete agreement between the parties and no other prior statement, representation or
DEVELOPMENT AGREEMENT
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By 44 =y;
Bradley 11"Morehouse, anager
HEIDI BROWN NOTARY PUBLIC
County of State of
Lincoln H►yorning
My Commission Expires August 5, 2009
this
a Notary P blic, personally appeared
DEVELOPMENT AGREEMENT
PAGE 12 of 13
understanding shall be binding upon the parties unless expressly set forth herein. The following
documents are incorporated to this agreement by reference: Exhibit `A' the engineer's cost
estimate for required public improvements; Exhibit `B' Subdivision Plat; Exhibit `C'
Subdivision Covenants, Conditions and Restrictions; Exhibit `D' road plans and specifications;
Exhibit `E' sewer and culinary water plans and specifications; Exhibit `F' golf course plan;
Exhibit `G' fire protection plan; Exhibit `H' miscellaneous if needed.
26. Effective Date. This agreement shall become valid and binding only upon its
approval by the TOWN Council of the TOWN and upon its execution by the Mayor.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal the day
and year first above written.
Agreed:
Next Step Engineering, Design and Construction, LLC
State of Wyoming
ss
County of Lincoln
day of 20 o before dTe
ief
known or identified to me, and who executed the instrument and acknowledged to me that he /she
executed the instrument freely and voluntarily.
�e a' .f
N TARY PUB IC OF
Residing at:
Commission expires:
C.008411
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By:
Town of Afton
Mayor
ATTEST:
By:
Town o Afton
Clerk
YA
APPROVED AS TO F RM:
B
DEVELOPMENT AGREEMENT
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