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HomeMy WebLinkAbout206 MS 21 Pleasant View Third Filing Development Agreement 206 MS 21 BCC LINCOLN COUNTY BOARD OF COUNTY COMMISSIONERS STAFF REPORT Development Agreement Revision & Extension HEARING TIME AND DATE: 10:00 a.m., July 3, 2024 LOCATION: Lincoln County Courthouse, Commissioner Boardroom 3rd Floor, 925 Sage Ave., Kemmerer, Wyoming & Via Video Conference Afton Branch Office Building Conference Room, 421 Jefferson St., Afton, Wyoming FILE # 206 MS 21 APPLICANT: Stacey G. and Tammy C. Heiner Family Trust and Jessica Jenkins PROJECT NAME: Pleasant View Third Filing Development Agreement Revision & Extension COMMUNITY PLAN AREA: Thayne ZONING: Rural PLANNER: Mikayla Hibbert REPRESENTATIVE: Surveyor Scherbel, Ltd. PARCEL ID: 3418-321-00-487, and 3418-321-00-476 ______________________________________________________________________________ PROPOSAL: A request for the Board of County Commissioners to sign a Development Agreement Revision & Extension for the Pleasant View Third Filing Preliminary Plat that was approved in August, 2021. There were no additional changes requested by the applicant besides an additional two year time extension. LOCATION: Located 4.1 miles southeast of Thayne, Wyoming in T34N, R118W, Section 32. ATTACHMENTS: 1. Preliminary Plat 2. Draft Development Agreement Revision & Extension PLANNING STAFF RECOMMENDATION: Planning Staff recommends that the Board of County Commissioners SIGN a Development Agreement Revision & Extension for File #206 MS 21 Pleasant View Third Filing, a Minor Subdivision Preliminary Plat. 206 MS 21 Page 1 of 10 DEVELOPMENT AGREEMENT REVISION & EXTENSION FOR PLEASANT VIEW THIRD FILING FILE NO. 206 MS 21 THIS AGREEMENT is made and entered into as of the ____ day of ______________, 2024 by and between Lincoln County, Wyoming, hereinafter referred to as “County”, whose address is 925 Sage Ave Suite 301, Kemmerer, Wyoming, 83101 and Stacey G and Tammy C Heiner Family Trust and Jessica Jenkins hereinafter referred to as OWNER/DEVELOPER”, whose address is 1223 Lost Creek Road, Thayne, WY 83127. WHEREAS, it is the intent and purpose of the OWNER/DEVELOPER to meet the conditions of approval for File No. 206 MS 21 Pleasant View Third Filing to subdivide approximately 30.75 +/- acres into 5 lots as set forth in the Preliminary Plat; and WHEREAS, the OWNER/DEVELOPER is the sole owner of the identified certain Property (see Exhibit A) located in the County; and WHEREAS, it is the intent and purpose of the OWNER/DEVELOPER and the County to enter into this Agreement that will guarantee the full and satisfactory completion of the required Improvements on the Property described in this Agreement and it is the intent of this Agreement and the parties to satisfy the Improvement requirements and to provide for the approval of the final plat application by the Lincoln County Board of County Commissioners and the final plat recordation in the Office of the Lincoln County Clerk of Pleasant View Third Filing. NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree: Section 1. Definitions 1.1 SUBDIVISION: The subject of this Agreement, which is designated and identified as File No. 206 MS 21 Pleasant View Third Filing on the Property described in Exhibit A in the jurisdiction of Lincoln County, Wyoming. This definition shall include any and all future mention to the term SUBDIVISION. 1.2 IMPROVEMENT: Any alteration to the land or other physical construction located on or off the Property that is associated with this subdivision, building site, or development. 1.3 OWNERS/DEVELOPERS: means and refers to Stacey G and Tammy C Heiner Family Trust and Jessica Jenkins, whose address is 1223 Lost Creek Road, Thayne, WY 83127, the parties that owns and are developing said Property and shall include any subsequent owner(s) or developer(s) of the Property. 1.4 PROPERTY: means and refers to the identified approximately 30.75+/- acres of a certain parcel(s) of Property located in Lincoln County, Wyoming, as described in Exhibit A. 206 MS 21 Page 2 of 10 Section 2. Planned Improvements. The OWNER/DEVELOPER shall, at its sole cost and expense, properly install and complete the following required improvements: 1. Construct an approved private subdivision road. 2. Submit a Water Distribution Plan to the State Engineer’s Office if water rights exist on the property. 3. Install electrical power and communication lines to each identified lot. 4. Surveyor’s lot monuments as set forth in the Preliminary Plat attached hereto as Exhibit B. 5. Purchase private road name signs and stop signs through Lincoln County, Wyoming Planning and Development Office. OWNER/DEVELOPER agrees that these Improvements shall be installed in compliance with Lincoln County Land Use Regulations Chapter 6 adopted by the County or other agencies responsible for providing services to the Development. Section 3. Sales or building permits. No lot shall be sold prior to final plat approval by the Lincoln County Board of County Commissioners and recording by the Lincoln County Clerk. Also, no building permits shall be issued by the County until final plat approval and recording. Section 4. Schedule for Commencement and Completion of the Improvements. The OWNER/DEVELOPER will complete construction of the Improvements within two (2) years after approval of the Development Agreement Revision & Extension. If OWNER/DEVELOPER does not complete Improvements within two (2) years after approval of the Development Agreement Revision & Extension by the Lincoln County Board of County Commissioners, the preliminary plat approval for SUBDIVISION will be automatically revoked. At such time, the OWNER/DEVELOPER must reapply for approval of SUBDIVISION under the then current County subdivision regulations. If OWNER/DEVELOPER timely completes the Improvements and meets all of the conditions of approval set out in the Final Determination approving the Preliminary Plat and improvements as outlined in this SUBDIVISION Agreement, a Final Plat shall be signed and recorded. Section 5. Control of trash, weeds, dust, erosion, and sedimentation. The OWNER/DEVELOPER shall be fully responsible for all dust abatement, erosion, sedimentation, weed, and trash control on the Property required by any County, State or Federal regulations. OWNER/DEVELOPER shall use best management practices and industry standards for control. Trash shall be contained at all times. The responsibilities in this Section shall run with the land and shall therefore apply before, during, and until completion of Improvements. Section 6. Permits. The OWNER/DEVELOPER is responsible for obtaining all 60’ right-of- way, easements, access, excavation, and other permits and approvals required by local, State, or Federal regulations. 206 MS 21 Page 3 of 10 Section 7. Inspections. The OWNER/DEVELOPER’s representatives shall make regular inspections and maintain control of SUBDIVISION while it is under construction. Representatives of the County shall have the right to enter upon the Property at any reasonable time to inspect and to determine whether the OWNER/DEVELOPER is in compliance with this Agreement. The OWNER/DEVELOPER shall permit the County and its representatives to enter upon and inspect the Property at reasonable times. The OWNER/DEVELOPER will not materially deviate from the Improvements required herein without the prior written approval of the County, which approval will not be unreasonably withheld. Section 8. Final Inspection and Approval of Improvements. The OWNER/DEVELOPER shall notify the County when it believes that the Improvements have been fully and properly completed and shall request final inspection and approval and acceptance of the Improvements by the County. At the time of such notification to the County, OWNER/DEVELOPER shall submit to County a set of “as built” plans and specifications, prepared by its engineer. The County will provide interim and final inspection of the Improvements within a reasonable time period after notification by the OWNER/DEVELOPER of completion and submission of “as built” plans and specifications. Upon inspection, the County shall give written acceptance of the Improvements or a written checklist of material deficiencies, such noted deficiencies shall be specific as to location and shall specify, in detail, the necessary corrective action to be taken by the OWNER/DEVELOPER. Upon approval of the final inspection, the County shall notify OWNER/DEVELOPER of its acceptance of the Improvements. Section 9. Warranty of the Improvements. The OWNER/DEVELOPER warrants the prompt and satisfactory correction of all defects and deficiencies, for both materials and workmanship, in the Improvements that occur or become evident within one year. If such defect or deficiency occurs or becomes evident during such period, then the OWNER/DEVELOPER shall, within thirty (30) days after written demand by the County to do so, correct it or cause it to be corrected. If the defect or deficiency cannot be reasonably corrected within thirty (30) days after written demand from the County, the OWNER/DEVELOPER shall commence the correction of the deficiency within the thirty (30) day period and proceed with reasonable diligence to correct the same or cause it to be corrected. Section 10. Remedies. In the event the OWNER/DEVELOPER fails to perform any of the terms, conditions or obligations in this Agreement or has not resolved a defect or deficiency under this Agreement, the County, at its option, may exercise any rights and remedies it may have under law. Furthermore, the County reserves the right, in its absolute discretion, to revoke the OWNER/DEVELOPER’s approvals for SUBDIVISION. In the event of said revocation, OWNER/DEVELOPER must reapply for approval of SUBDIVISION under the then current County subdivision regulations. Section 11. Default. If the OWNER/DEVELOPER fails to fully perform any of its obligations in accordance with this Agreement, or fails or refuses to correct any defect or deficiency in the Improvements required by this Agreement, then the OWNER/DEVELOPER shall be in Default of this Agreement. Lincoln County shall notify the OWNER/DEVELOPER of the specific Default or failing. If Default occurs, then Lincoln County shall be entitled to use any of the Remedies in the preceding paragraph at its own discretion. 206 MS 21 Page 4 of 10 Section 12. Maintenance of Lots. OWNER/DEVELOPER hereby agrees that all unsold lots shall be maintained by the OWNER/DEVELOPER at the OWNER/DEVELOPER’s sole expense. Section 13. Binding Upon Successors. This Development Agreement shall be binding upon and inure to the benefit of the parties’ respective heirs, successors, assigns and personal representatives. Section 14. Notices. Any written notices required herein shall be deemed delivered to the addressee when delivered in person on a business day at the address set forth below or on the third day after being deposited in the United States mail, for delivery by properly addressed, postage prepaid, certified or registered mail, return receipt requested, to the address set forth below. Notices to the County shall be addressed to, or delivered at, the following address: Lincoln County Board of County Commissioners ATTN: Planning Director Planning and Development Office 925 Sage Ave., Ste 201 Kemmerer, WY 83101 Notices to the Developers shall be addressed to, or delivered at, the following addresses: Stacey G. and Tammy C. Heiner Family Trust 1223 Lost Creek Road Thayne, WY 83127 Jessica Heiner Jenkins 366 Co Rd 123 Bedford, WY 83112 Section 15. Indemnification. A. No Liability for County Approval. The Developers acknowledges and agrees (1) that the County is not, and shall not be, in any way liable for any damages, loss or injuries whatsoever, including attorney fees, that may be sustained as the result of the County’s issuance of any permits, inspections, approvals or acceptances of the Improvements or use of any portion of the Improvements, and (2) that the County’s issuance of any permits, inspections, approvals or acceptances does not, and shall not, in any way be deemed to insure the Developers, or any of its heirs, successors, assigns, tenants, or licensees or any third party, against damage or injury of any kind at any time. B. Indemnification. Except as provided below, the Developers agrees to, and does hereby, indemnify the County, and all of its elected and appointed officials, officers, employees, agents and representatives from any and all claims, costs and liability of every kind and nature that may be asserted at any time against any such parties for injury or damage received or sustained by any person or entity in connection with (1) the County’s review or approval of any plans, including those for the Improvements, (2) the inspection or issuance of any approval or acceptance of Improvements, (3) the development, construction, maintenance or use of any portion of the Improvements and (4) the performance by the Developers of its obligations under this Agreement and all related Agreements. The indemnification required herein shall include, 206 MS 21 Page 5 of 10 but not be limited to, any costs of defense incurred by the indemnified parties including attorney fees and expert witness fees. Section 16. Amendments or Alterations. Any changes, omissions, modifications, revisions, additions or amendments to this Agreement shall be incorporated by written instrument, executed and signed by all parties. Section 17. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. Section 18. Filing. The County shall have this Agreement recorded in the Office of the Lincoln County Clerk. Section 19. Authority to Execute. The County hereby warrants and represents to the Developers that the persons executing this Agreement on its behalf have been properly authorized to do so by the Board of County Commissioners. The Developers hereby warrants and represents to the County (1) that they are the owners of record of the Property or the owner’s authorized representative, (2) that it has the right, power, and authority to enter into this Agreement and to agree to the terms, provisions, and conditions set forth herein and to bind the subdivision as set forth herein, (3) that all legal action needed to authorize the execution, delivery, and performance of this Agreement have been taken, and (4) that neither the execution of this Agreement nor the performance of the obligations assumed by the Developers hereunder will (i) result in a breach or default under any Agreement to which the Developers are the party or to which it or the subdivision is bound or (ii) violate any statute, law restriction, court order, or Agreement to which the Developers or the subdivision is subject. Section 20. Regulations. The Developers agree to abide by all regulations, laws and codes of Lincoln County. Section 21. Applicable Law/Venue. The construction, interpretation, and enforcement of this Agreement shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Agreement and the parties, and the venue shall be the Third Judicial District, Lincoln County, Wyoming. Section 22. Insurance. Developers shall procure, and at all times maintain, general liability insurance to protect from claims for damages because of negligence or bodily injury, including but not limited to death and damages to property, all with coverage limits of no less than one million dollars ($1,000,000.00). Said insurance will also provide coverage to fulfill the Developer’s indemnification requirements set forth herein. Upon request, Developers agree to provide a certificate of liability insurance to County evidencing said limit. Section 23. Entirety of Agreement. This Agreement sets forth all promises, inducements, agreements, condition and understandings between Owners/Developers and County relative to the subject matter hereof, and there are no promises, agreements, conditions or understanding, either oral or written, express or implied, between Owners/Developers and County, other than as are stated herein. All Exhibits referenced herein are incorporated in this Agreement as if set forth in full including all text information in the Exhibits. In the event of any conflict of terms in this 206 MS 21 Page 6 of 10 Agreement and any Exhibits, the terms of this Agreement shall control. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless reduced to writing and signed by them or their successors in interest or their assigns. Section 24. No Waiver of County Rights. No waiver of any provision of this Agreement will be deemed to constitute a waiver of any other provision nor will it be deemed to constitute a continuity waiver unless expressly provided for; nor will the waiver of any default under this Agreement be deemed a waiver of any subsequent default or defaults of the same type. The County’s failure to exercise any obligation under this Agreement will not constitute the approval of any wrongful act by the Developers or the acceptance of any Improvement. Developers acknowledge that Lincoln County reserves the right to revoke all approvals for Pleasant View Third Filing upon failure to comply with File No. 206 MS 21 Pleasant View Third Filing conditions of approval, upon any of the violations of Lincoln County Land Use Regulations, or for misrepresentations or material omissions made to the Lincoln County Planning and Engineering Office or Board of County Commissioners. Section 25. Sovereign Immunity. The County does not waive sovereign immunity by entering into this Agreement and specifically retains immunity and all defenses available to it pursuant to law, including government immunity. Section 26. Effective Date. This Agreement shall become valid and binding only upon its approval by the Lincoln County Board of County Commissioners and shall be effective on the date first written above. IN WITNESS WHEREOF, the parties to this Agreement through their duly authorized representatives have executed this Agreement on the days and dates set out below and certify that they have read, understood, and agreed to the terms and conditions of this Agreement. 206 MS 21 Page 7 of 10 LINCOLN COUNTY ________________________________ Date: ______________________ Kent Connelly, Chairman Board of Lincoln County Commissioners Attest: ________________________________ April Brunski Lincoln County Clerk 206 MS 21 Page 8 of 10 OWNER/DEVELOPER Date: Stacey G. Heiner, Trustee of the Stacey G. and Tammy C. Heiner Family Trust, dated 5 March 2004 Date: Tammy C. Heiner, Trustee of the Stacey G. and Tammy C. Heiner Family Trust, dated 5 March 2004 STATE OF WYOMING ) ) ss COUNTY OF LINCOLN ) The foregoing instrument was acknowledged before me this day of __________, 2021, by Stacey G. and Tammy C. Heiner, Trustees Witness my hand and official seal. (SEAL) Notary Public My Commission expires: 206 MS 21 Page 9 of 10 EXHIBIT A DESCRIPTION OF PROPERTY Pleasant View Third Filing 30.75+/- acres within that part of Section 32 SEI /4 NE1/4, Township 34 North, Range 118 West, in the 6th Principle Meridian, Lincoln County, Wyoming. 206 MS 21 Page 10 of 10 EXHIBIT B APPROVED PRELIMINARY PLAT See Attached