2-20-130 Improvement Agreements, Development Covenants and Performance Guarantees, and Conservation Easements

(a) Improvement Agreements

1. Prior to the submittal of any permit application or the recording of the final plat, the applicant shall submit to the Board and receive approval for an improvement agreement that meets the requirements of this section.
2. The improvement agreement shall constitute the applicant's agreement to construct the public improvements and common private improvements identified as requirements of project approval, and shall identify such requirements with particularity, including, where appropriate, deadlines for completion of construction and plans or drawings.
3. The improvement agreement shall provide that no property within the project may be sold, and no building permit application for construction may be submitted, until the improvements identified in the agreement have been completed. At the Board’s discretion, the improvement agreement may also provide that property within the project may be sold and that building permit applications for construction may be submitted prior to completion of specified agreements if financial security in a form acceptable to the Community Development Director or designee is provided by the applicant as described below. This shall not preclude the sale of an entire project, provided that the purchaser is subject to the same limitations as imposed upon the applicant by this Land Use Code, by the project approval, and by the improvement agreement.
4. At the Board’s discretion, in lieu of the limitations of subsection (3) above, the Board may allow permits to be issued and the final plat to be recorded where the applicant has provided financial security in a form acceptable to the Community Development Director or designee to assure the actual cost of construction of the required improvements, which costs shall be determined by the Board. Unless the Board determines otherwise, the improvement agreement shall require that sufficient financial security in a form acceptable to the Community Development Director or designee must be provided to secure completion of the improvements. Such financial security in a form acceptable to the Community Development Director or designee must be issued or confirmed by a Colorado bank acceptable to the Board. The financial security shall provide that it may be drawn upon by the Board upon presentation by the Board, subject only to the Board's affidavit that the applicant is in default of its obligations under the improvement agreement. The amount of security may be incrementally reduced as improvements are completed to the satisfaction of the Board. A financial security shall be in full force and effect until such time as the Board has determined that all improvements are satisfactorily completed.
5. The improvement agreement shall provide that if the Board determines that any of the required improvements are not constructed as provided in the agreement, including reasonable provisions for the correction of deficiencies upon notice thereof, the Board may draw upon the financial security in a form acceptable to the Community Development Director or designee as may be necessary to complete the improvements in accordance with the specifications included in the improvement agreement.

(b) Development Covenants and Easements

1. Prior to the submittal of any building permit application, and in lieu of, or in addition to, an improvement agreement, the County may require the applicant to execute and record development covenants obligating the applicant or property owner to perform any of the types of duties identified in subsection (a). above.
2. In general, a development covenant may be required where the terms of the development approval impose conditions requiring the performance of duties after the date of approval, and the County wants to ensure that future purchasers of the property are aware of those obligations, or where the County prefers to obtain assurance that post-approval obligations will be performed through a recorded condition of development approval rather than a contractual agreement.
3. Where a development covenant is required, it shall be in a form acceptable to the Community Development Director or designee and shall provide that (a) the County is an intended beneficiary of the covenant, (b) the County may enforce the terms of the covenant, and (c) the covenant may not be released or amended without the written consent of the County.
4. If the Site Plan or development permit requires the execution of easements in favor of the County, such easements shall be executed and recorded prior to the submission of final plat applications or building permit applications.

(c) Performance Guarantee

1. Prior to the submittal of any building application, the Community Development Director or designee may require an applicant to file a financial guarantee in a form acceptable to the Community Development Director or designee in order to ensure compliance with any or all requirements stipulated in the improvements agreement, a development covenant, or a development approval or permit.
2. The financial guarantee, in the judgment of the Community Development Director or designee shall be sufficient to make reasonable provision for completion of said improvements in accordance with design and time specifications stated in the development approval or the improvements agreement.
3. Ordinarily, a letter of credit from a commercial bank, savings and loan institution, insurance company or other qualified lending institutions licensed or authorized to do business in the State of Colorado, or a letter from the Federal Housing Administration or Veterans Administration in a form satisfactory to the County Attorney, shall be required to satisfy the requirement for a performance guarantee. However, the Community Development Director or designee may approve other forms of financial security.

(d) Release of Performance Guarantee or Collateral

1. As public improvements are made an applicant may apply to the Community Development Director or County Attorney for release of a section or all of the collateral deposited with the County.
2. Upon inspection and approval the Community Development Director or County Attorney shall release collateral.
3. If the Community Development Director, County Engineer or County Attorney determines that any of the required improvements are not constructed in substantial compliance with specifications, it shall furnish the applicant with a list of specifications and shall be entitled to withhold collateral sufficient to ensure substantial compliance.
4. If the Community Development Director or County Attorney determines that the applicant will not construct any or all of the improvements in accordance with all of the specifications, the Board may withdraw and employ from the deposit of collateral such funds as may be necessary to construct the improvements in accordance with the specifications.