HomeMy Public PortalAboutRES-CC-2017-17CITY OF MOAB RESOLUTION #17-2017
A RESOLUTION APPROVING THE IMPROVEMENTS AGREEMENT FOR THE FINAL
PLAT OF PHASE II OF VALLEY VIEW SUBDIVISION ON PROPERTY LOCATED IN THE
R-2 ZONING DISTRICT
WHEREAS, Tim Keogh, representing Route 46, LLC, with a mailing address of Box 396, Moab, Utah
84532, has applied to develop fourteen total residential dwellings (8 single family dwellings and 3
attached single family dwellings) for Phase II of the Valley View Subdivision; and,
WHEREAS, the applicant provided the City of Moab with the necessary documents, plans and drawings
to complete the application for the Final Plat -Phase II of the proposed subdivision; and,
WHEREAS, the City of Moab Planning Commission ("Commission") held a public meeting and
reviewed and conditionally approved the Final Plat -Phase II on January 26, 2017; and,
WHEREAS, the proposed uses are allowed in the R-2 as listed in Moab Municipal Code (MMC) Chapter
17.45.020, Use Regulations; and
WHEREAS, the City Council ("Council") held a public meeting to review the Phase II, Final Plat on
February 28, 2017; and,
WHEREAS, Council found that the proposed lots meet or exceed the minimum required lot size for
detached single family residences of five thousand (5,000) square feet for the R-2 Residential Zone as
described in Chapter 17.45.030 of the Moab Municipal Code and the lot size requirements of six
thousand (6,000) square feet for attached single-family dwellings ("twin homes"); and,
WHEREAS, Council, having considered Staff recommendations and discussed the pertinent aspects of
the development, determined that the proposed final plat of the Valley View Subdivision, Phase II, has
met or can meet the requirements of Titles 16 and 17 of the Moab Municipal Code and other applicable
regulations.
WHEREAS, Owner furnished cost estimates for required improvements and agrees to construct the
improvements as attached to the Development Improvements Agreement as "Required Improvements".
NOW, THEREFORE, be it resolved by the Moab City Council, the adoption of Resolution #17-2017,
hereby approves the submitted Improvements Agreement (attached) for Phase II of the Valley View
Subdivision and the Council authorizes the Mayor to sign the Agreement.
PASSED AND APPROVED in open Council by a majority vote of the Governing Body of Moab City
Council on February 28, 2017.
A-rrtr T:
Rachel Stenta, Recorder
When Recorded Mail to:
City of Moab
217 East Center Street
Moab, UT 84532
SUBDIVISION IMPROVEMENTS AND
DEVELOPMENT AGREEMENT
For
Valley View Subdivision, Phase II
For valuable consideration, the CITY OF MOAB, a Utah municipality (City), and
Route 46, LLC (Subdivider) referred to as the Parties, enter into the following Subdivision
Improvements and Development Agreement (the Agreement), pursuant to Moab
Municipal Code (MMC) Sections 16.20.010, to govern the development of the subject
property and the installation of subdivision improvements required by City Code.
I. RECITALS.
a. The Planning Commission recommended approval of the Valley View
Subdivision, Phase II, at its January 26, 2017 meeting.
b. The Moab City Council, as land use authority for subdivision final plat approval,
approved the final plat for Phase II of the subdivision on February 28, 2017.
c. Subdivider has submitted to the City for review the construction plans and
specifications entitled Valley View Subdivision Construction Drawings, Phase II,
Surface and Utility Improvements (sheets C1.0-C6.1 inclusive, dated November
9, 2015), prepared by Goff Engineering, and the Public Improvements Engineer's
Cost Estimate (dated December 16, 2016) attached as Exhibit 1(the Construction
Plans). The Construction Plans show in sufficient detail the required
improvements for the subdivision.
II. AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. Covered Property. The recitals above are incorporated into this Agreement. The
real property in the County of Grand, State of Utah, subject to this Agreement (the
Property) is described as follows:
A DESCRIPTION OF LANDS WITHIN SECTION 7, T 26 S, R 22 E, SLM, MOAB CITY, GRAND COUNTY,
UTAH, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Valley View Subdivision SIA, Phase II
Page 2 of 12
BEGINNING AT THE SW CORNER OF LOT 11 OF VALLEY VIEW SUBDIVISION, PHASE I, SAID
CORNER BEARS N 79°46100"W 1667.34 FT. THENCE S 21°41130"E 245.93 FT. FROM THE EAST 1/4
CORNER OF SECTION 7, T 26 S, R 22 E, SLM, AND PROCEEDING THENCE N 56°56151"E 124.69 FT.,
THENCE N 28°57130"W 76.54 FT., THENCE N 61°03100"E 50.00 FT., THENCE ALONG THE ARC OF A
14.00 FT. RADIUS CURVE TO THE RIGHT 21. 99 FT. (SAID CURVE HAS A CHORD WHICH BEARS N
16°02'45"E 19.80 FT.), THENCE N 61°03'00"E 72.45 FT., THENCE S 28°57'30"E 90.58 FT., THENCE
N 60°12'46"E 17.26 FT., THENCE S 28°57130"E 50.79 FT., THENCE S 36°39'14"E 50.53 FT., THENCE
S 20°59131"W 67.96 FT., THENCE ALONG THE ARC OF A 50.00 FT. RADIUS CURVE TO THE RIGHT
10.02 FT. (SAID CURVE HAS A CHORD WHICH BEARS S 67°41'44"E 10.00 FT.), THENCE N
20°59131"E 90.52 FT., THENCE N 28°57130"W 6.23 FT., THENCE N 60°38100"E 72.09 FT., THENCE
S 23°33'00"E 187.37 FT., THENCE S 68°56'00"W 124.40 FT., THENCE S 19°09109"E 90.00 FT.,
THENCE S 68°56'00"W 125.00 FT., THENCE N 19°09100"W 90.00 FT., THENCE S 89°48'24"W
95.02 FT., THENCE N 51°14135"W 50.37 FT., THENCE N 45°54'00"W 75.00 FT., THENCE N
21°41130"W 67.07 FT. TO THE POINT OF BEGINNING AND CONTAINING 2.35 ACRES. MORE OR
LESS.
2. Payment of Fees; Approved Land Uses. Subdivider agrees to pay all in -effect City
fees applicable to the Subdivision, including but not limited to, impact fees, connection
fees, building permit fees, and applicable inspection fees. Applicable fees shall be
calculated and paid at the time of connection or the time when the service is
performed.
a). The uses permitted in the Subdivision shall correspond with the uses
authorized for the JR-2, Zone under the Moab Municipal Code and other
applicable ordinances. The configuration of the Subdivision and the uses
therein shall conform to the Construction Plans, Exhibit 1 attached, and
the Final Plat, as set forth in Exhibit 2, attached.
b). The parties agree to confer and, if necessary, execute supplemental
easement conveyance(s) and/or releases if the alignment of a pedestrian
easement granted to the City should change due to changes in the
location of improvements on Parcel A, as shown in Exhibit 2. Subdivider
shall at all times assure that adequate public pedestrian access is
maintained, consistent with prior approvals.
3. Required Improvements. Subdivider shall construct all of the improvements on
and adjacent to the Property shown on the Final Plat and the Construction Plans (the
Required Improvements). Required Improvements shall include the public
improvements shown on the Construction Plans, as well as all other improvements
Valley View Subdivision SIA, Phase II
Page 3 of 12
shown on the Construction Plans, or as needed for the lawful use and occupancy of the
Property under applicable building codes.
4. Improvements to be Completed in Conformance with Construction Plans. All
Required Improvements shall be constructed in a workmanlike manner and in conformity
with the approved Construction Plans. No deviations from the Construction Plans shall be
permitted, except as authorized in writing by the City Engineer upon a showing of good
cause. In addition, all Required Improvements shall be completed in conformance with
the City of Moab Public Improvement Specifications, building codes, and all state and
federal regulations, as applicable.
5. Timeline for Completion. Construction of the Required Improvements shall not
commence until the Effective Date of this Agreement. Construction of all Required
Improvements shall be completed within two hundred ten (210) days from the Effective
Date of this Agreement.
a). A reasonable extension of time for the completion of the Required
Improvements may be granted, at the discretion of the City Council, upon
a showing by the Subdivider that there is good cause for an extension and
that the work has been diligently prosecuted from the Effective Date of
this Agreement. Without limiting this provision, good cause may include
an extension of time due to the need to complete building construction
prior to the completion of curbing, sidewalks, or landscaping, or as
otherwise needed to provide for orderly construction and avoid damage
to improvements in the course of other construction.
b). If the construction of the Required Improvements is not completed and
accepted within the timelines specified herein, or as lawfully extended,
then the Subdivision and all development approvals shall be deemed
lapsed and shall have no further effect.
6. Lot Sales, Building Permits, Plat Recording. No Building Permits will be issued until
such time as all of the Required Improvements are completed and, with respect to public
improvements, accepted by the City, except that building permits may be issued if
Subdivider provides a Financial Assurance to the City conforming to Section Eight, below.
No final plat for the Subdivision, or any phase thereof, shall be executed by the City or
submitted for recording until such time as either: a) all of the Required Improvements
are completed in accordance with this Agreement and, with respect to public
improvements, accepted by the City; or b) a Financial Assurance conforming to Section
Eight is delivered to the City. Subdivider shall not convey or purport to convey any lot
within the Subdivision prior to the recording of the final plat. Any purported conveyance
of lots by Subdivider prior to approval and recording of a final plat for any phase of the
Subdivision, or otherwise in violation of this Agreement, shall be void.
Valley View Subdivision SIA, Phase II
Page 4 of 12
7. Acceptance of Improvements, Warranty, Release Provisions. All of the public
improvements comprising the Required Improvements shall be subject to quality
assurance testing and inspection as specified in the Construction Plans and/or applicable
reference standards. Subdivider or its authorized representative shall provide not less
than forty eight (48) hours minimum notification to City when inspection is required. The
costs associated with such testing and inspection shall be the responsibility of Subdivider.
Any work which is rejected following inspection must be repaired or replaced at the sole
cost of the Subdivider. Any work which is covered up prior to inspection may be rejected,
in which case Subdivider shall be solely responsible for exposing the work and arranging
for inspection.
a). The acceptance by the City of the public improvements comprising the
Required Improvements following completion and satisfactory inspection
shall constitute a dedication and conveyance by the Subdivider to the City
of all such improvements. Subdivider shall convey all public improvements
to the City free and clear of any mechanic liens, claims, or other
encumbrances.
b). Subdivider warrants that all public improvements dedicated to the City
shall be constructed in a workmanlike manner, in accordance with
approved plans and specifications, and that all such improvements shall be
free of defects in materials and workmanship for a period of one (1) year
from the date of acceptance by the City. Subdivider shall promptly repair
or replace any defective work following receipt of written notice under this
warranty from the City.
c). To partially secure this obligation, Subdivider shall deposit with the City
the sum of ELEVEN THOUSAND SIXTY SIX DOLLARS ($11,066.00), which
sum is equal to ten percent (10%) of the construction cost, as determined
by the City Engineer, for public improvements comprising the Required
Improvements (the Warranty Deposit). The Warranty Deposit shall be held
by the City in a non -interest bearing account, unless otherwise agreed in
writing.
d). The Warranty Deposit shall be paid by the Subdivider no later than fifteen
(15) calendar days from the Effective Date of this Agreement.
e). Upon expiration of the warranty period the Subdivider may request refund
of the Warranty Deposit in writing. The City Engineer and/or Public Works
Director will review the request and promptly determine whether there
are any unperformed warranty claims pertaining to this Agreement. Upon
receipt of written verification from the City Engineer and/or Public Works
Valley View Subdivision SIA, Phase II
Page 5 of 12
Director as to the absence of any unperformed warranty claims, the City
Treasurer shall promptly refund the Warranty Deposit to Subdivider.
f). In the event of any default following delivery of written notice to
Subdivider with respect to Subdivider's warranty obligations, the City may
elect to draw upon the warranty deposit to cure, in whole or in part, any
breach of warranty. This remedy may be combined or utilized in
conjunction with any other remedies, in the sole discretion of the City.
g)•
Subdivider additionally warrants that all public improvements shall be
delivered free and clear of any mechanic liens or other encumbrances. The
City may require receipt of executed mechanic lien releases as a condition
precedent to dedication of the public improvements.
8. Financial Assurance. If the Required Improvements are not completed within the
two hundred ten (210) day deadline specified in this Agreement, or if Subdivider desires
to record a final plat or obtain a building permit in advance of the completion of all of the
Required Improvements, then the Subdivider may, subject to approval by the City, deliver
a Financial Assurance, in a form acceptable to the City for the use and benefit of City and
to secure the completion of the Required Improvements which remain to be completed.
The Financial Assurance shall be in the form of a performance/payment bond, escrow
account, letter of credit or other financial instrument approved by the City Attorney in an
amount which is not less than one hundred forty percent (140%) of the construction cost
set forth in the Construction Plans of Exhibit 1, and as reviewed and approved by the City
Engineer in writing, of the remaining improvements which are not completed. If a
Financial Assurance is approved according to this Section Eight, Subdivider shall have up
to two hundred ten (210) additional days from the Effective Date of this Agreement in
which to complete the Required Improvements. The Financial Assurance provided under
this Section Eight may be combined with the Warranty Deposit specified in Section Seven.
A cash Financial Assurance shall be held in a non -interest bearing account unless
otherwise agreed in writing.
9. Cease and Desist Notice. If the Required Improvements have not been
completed within the time provided in this Agreement or, in lieu of same, a Financial
Assurance approved pursuant to Section Eight, above, then the City may issue an
immediate cease and desist order to Subdivider and all work shall be discontinued until
such time as an acceptable Financial Assurance has been established. If Subdivider fails
to take timely steps to deliver an acceptable Financial Assurance or complete the
Required Improvements, then the City may record in the land records an Affidavit of Lapse
of Plat/Plan and invoke such other remedies as may be available under this Agreement or
at law.
10. Partial Releases of Financial Assurance. Upon partial completion of any class of
Valley View Subdivision SIA, Phase II
Page 6 of 12
improvements within the Required Improvements Subdivider may request a partial
release of the Financial Assurance. The amount of the release shall be equal to the
agreed cost of the completed improvements, as determined by the City Engineer. Partial
releases shall not be made for partial completion of a class of improvements.
a). In order for Subdivider to receive such partial release, the following shall
be presented to City:
i. A completed Request for Partial Release of Financial Assurance
Form, as set forth in Exhibit 3.
ii. Copies of all quality assurance test results/inspection reports
required for the completed improvements;
iii. Copies of all weight/quantity tickets for materials incorporated in
the work for all items that were estimated on the basis of
weight/quantity; and
iv. Copies of all invoices or receipts for materials delivered to the site
and incorporated in to the work for which a partial release is
being requested.
b). The partial release request shall be reviewed for completeness and
accuracy by City Public Works Director and/or City Engineer. The City may
deny the request or adjust the amount of the request if inspection shows
that items of work have not been completed in accordance with the
Construction Plans, or if completed quantities are not accurate.
c). Upon receipt of written verification from the City Engineer and/or Public
Works Director as to the approved partial release of a cash Financial
Assurance, the City Treasurer shall promptly refund the cash Financial
Assurance in the amounts approved. Non -cash Financial Assurances shall
be released in writing in the manner otherwise determined by the City.
11. Final Release of Financial Assurance. Upon completion of all Required
Improvements in accordance with the approved Construction Plans, Subdivider may
request that the remainder of the Financial Assurance be released, provided that
Subdivider delivers executed mechanic lien waivers/releases from all contractors who
performed work on the project and all suppliers who supplied materials that were
incorporated into the work, together with a written certification by Subdivider that all
outstanding charges for the Required Improvements have been paid and that there are
no other liens, encumbrances, or other restrictions affecting the improvements. Final
release of the Financial Assurance shall be reviewed and processed in the same manner
as provided under Section 10, above.
12. Use of Financial Assurance upon Default. Upon delivery of written notice to the
Subdivider and expiration of any cure period, the City may then elect to draw upon the
Financial Assurance as it deems necessary for the completion of improvements or cure of
Valley View Subdivision SIA, Phase II
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any default under this Agreement.
13. Zoning Compliance. Certificates of Occupancy for structures within the Property
shall only be issued upon satisfactory completion and acceptance of all Required
Improvements as provided in this Agreement.
14. Default, Remedies, Lapse of Plat/Plan. All provisions of this Agreement are
material and any violation is grounds for declaration of Default. Prior to invoking any
remedies for Default under this Agreement the City shall deliver written notice to the
Subdivider describing the act, event, or omission constituting a default, and allowing
Subdivider a period of thirty (30) days in which to cure or abate the violation. Cure within
that period reinstates this Agreement.
a). Upon declaration of default the City may exercise any remedies for
violation available under City ordinances or Utah statutes, including,
without limitation: i) proceeding against the Financial Assurance; ii).
Withholding building permits, certificates of occupancy, or certificates of
zoning compliance; iii) obtaining an injunction to halt or abate zoning
violations or breaches of this Agreement; iv) recording an affidavit of a
lapse of plat/plan, in whole or in part; v) commencing an action for
damages —including damages for costs incurred in completing, repairing,
or replacing Required Improvements or abating any violations; and/or vi)
any other remedies available at law or equity, including the remedy of
specific performance. The City may combine remedies in its discretion and
pursue some or all at different times, as may fit the applicable breach.
b). The recording of an affidavit of lapse of plat/plan by the City shall result in
the lapse of all prior land use approvals and the voiding of the subdivision
of lots within the real property specified in the affidavit.
15. General Provisions. This Agreement shall be binding on and inure to the benefit
of the successors and assigns of the Subdivider in the ownership or development of all or
any portion of the Property. Assignment of this Agreement shall require the mutual
approval of the City and the proposed assignee, in writing.
a). This Agreement is the product of mutual bargaining. All terms shall be
construed in accordance with their plain meaning, regardless of the extent
to which either party participated in the drafting.
b). Failure of a party to exercise any right under this Agreement shall not be
deemed a waiver of any such right, nor shall any course of dealing or
previous action or inaction be deemed a waiver of any rights or claims
arising with respect to later or subsequent breaches, acts or omissions.
c). The term "Agreement" includes this Improvements Agreement, all exhibits
J)•
Valley View Subdivision SIA, Phase II
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hereto, the Final Plat/Plan for the Subdivision, and all phases thereof, and
all related design drawings, which documents shall constitute the sole and
complete Agreement between the parties. The Agreement shall
supersede all prior Agreements or representations, however evidenced.
No modification to any of the terms of this Agreement shall be binding,
unless reduced to writing and lawfully executed by both parties.
d). The place of performance of this Agreement is Grand County, Utah. In the
event of any legal dispute concerning the subjects of this Agreement, the
parties agree that the exclusive venue shall be the Seventh Judicial District
Court, Grand County, Utah. In any such proceedings arising under this
Agreement, regardless of the denomination of the legal claims, the parties
waive trial to a jury on all claims and agree that the action shall be decided
by the court sitting without a jury.
e). In any legal proceeding arising from this Agreement the substantially
prevailing party shall be entitled to recover its reasonable attorney fees
and court costs in addition to any other relief authorized herein.
f). This Agreement shall be governed by Utah law.
g). This Agreement does not create any third party beneficiary rights. It is
specifically understood by the parties that;
i. the Project is a private development;
ii. the City of Moab has no interest in, responsibilities for, or duty to
third parties concerning any improvements to the Property,
unless/until the City accepts dedication of public improvements
pursuant to this Agreement; and
iii. except as otherwise provided herein, Subdivider shall have full
power and exclusive control of the Property.
h). The provisions of this Agreement are severable, and if any portion should
be held to be invalid or unenforceable, then the remainder of this
Agreement shall be construed to be in full force without reference to the
invalid provision.
i). In the event of any legal dispute arising from this Agreement neither party
shall be liable to the other for consequential damages, lost profits, or delay
related damages of any kind.
All notices under this Agreement shall be given in writing by first class or
certified mail, postage prepaid, or by hand delivery or delivery by a
reputable courier, and sent to the following addresses:
To the City of Moab:
City of Moab
Valley View Subdivision SIA, Phase II
Page 9 of 12
217 East Center Street
Moab, Utah 84532
Attn: City Manager
To Subdivider:
Route 46 LLC
P.O. Box 396
Moab, UT 84532
Attn : Tim Keogh
k). Notice may be delivered to such other parties or addresses as the parties
may designate in writing from time to time. A notice sent by mail shall be
deemed delivered no later than three (3) days from the date that it is
mailed.
I). Nothing in this Agreement shall be deemed to waive any governmental
or other immunity to which the City is entitled under law.
16. Indemnity. Subdivider shall indemnify and hold the City harmless with
respect to any third party claims, including claims for property damage, injury, or death,
and any demands, liabilities, causes of action, costs, or damages, including reasonable
attorney's fees, that may arise from any act or omission of the Subdivider, its members,
managers, employees, agents, or contractors in connection with the development of the
Subdivision and/or the performance of this Agreement.
17. Future Legislative Power. Nothing in this Agreement shall be construed to impair
or limit the future legislative power or zoning authority of the City.
18. Grading. All grading and soil disturbance undertaken in the development of the
Subdivision shall be performed in conformity with Appendix J of the International
Building Code (IBC) as adopted by the City.
19. Effective Date. The effective date of this Agreement is the date when it is signed
by all Parties and the Council has approved the final plan of the Subdivision.
20. Recording/Release of Agreement_ This Agreement constitutes an obligation
binding upon, and running with, the subject real Property. This Agreement shall be
recorded in the Grand County land records. Upon request of the Subdivider and
verification by the City that all terms and conditions of this Agreement have been
performed in full, the City shall promptly execute a release of this Agreement, which
may be recorded at the discretion of the Subdivider.