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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 Page 7 of 12 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 Page 8 of 12 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.