A. Developer-Constructed Improvements.
1. An agreement between the town and a developer for cost recoveries may be included within the development improvement agreement in accordance with the provisions of this Title 9 or may be executed separately with approval by town council resolution.
2. All such cost recovery agreements for developer-constructed improvements shall include a listing of those properties to be charged with cost recovery for the improvement(s). The developer shall also provide within the same time period a cost estimate of the improvements. The town shall review and approve for recording all such agreements that include provisions for cost recovery for the benefit of private developers, provided, however, it shall be the responsibility of the developer to record such agreements, and any effect on the developer's ability to recover costs, pursuant to the developer's failure to appropriately record such agreement or include a sufficient legal description for the properties to be charged with cost recovery, shall be the sole responsibility of the developer.
3. Any such agreement may include a provision for simple interest. The town council shall, by resolution, establish the interest rate to be applied to recovery costs. The interest shall be applied to the principal only, based on one-year increments, or fractions thereof. The maximum amount of allowable accrued interest for any recovery agreement is fifty percent (50%) of the original cost of the public improvement
4. The town manager shall be empowered to execute such agreements on behalf of the town.
5. In each such agreement, the town shall require that the developer or his successors notify the town in the event that there is a change in the payee of recovery fees collected for disbursement by the town. This notice shall be provided no later than thirty (30) days after the effective date of the change in payee. This notification shall include the new payee, the payee's address, a description of the event resulting in the change of the payee, and the effective date of the change in payee. The notice shall be signed by someone legally authorized to bind the transferor. The town shall send collected recovery fees to the payee of record, as described in this paragraph. If, due to lack of notice by the payee, the town is unable to ascertain the identity or location of the payee within sixty (60) days after receipt of the recovery fees, such fees shall revert to the town, and the town may declare the agreement terminated and deposit the undisbursed recovery fees in the town 's general fund for town use.
6. Prior to the town's acceptance of any public improvements constructed by a developer, the developer shall furnish the town with one set of reproducible, as-built drawings and a final statement of construction costs for those improvements subject to recovery in a format acceptable to the town. The town shall review the developer's final statement of construction costs and, upon the town 's approval, said final statement of construction costs shall be recorded by the developer, which thereafter shall be the schedule of recovery costs that the town will follow in administering the cost recovery agreement pursuant to section 9-2-8 below.
7. The developer benefitting from any cost recovery agreement approved by the town pursuant to this section (the "developer-beneficiary") shall pay a fee to the town for the preparation, recordation, and administration of the agreement as specified in Section 1-8-2 of this code.
8. The town's duty and liability in connection with the administration of a cost recovery agreement pursuant to this section shall be limited as follows. In administering such agreements:
a. The town shall exercise reasonable care to collect such amounts due the developer-beneficiary, but the town shall not be responsible or liable for any amounts not actually paid to the town by the responsible party. The developer-beneficiary shall have no cause of action against the town, other than to recover any amounts actually collected and on deposit with the town.
b. The town shall not be deemed to be acting as an agent or fiduciary of the developer-beneficiary or the responsible party. It shall be the exclusive responsibility of the developer-beneficiary to monitor and enforce the payment provisions of the agreement.
c. In the event of non-payment by a responsible party, the developer-beneficiary, in its capacity as principal third-party beneficiary of the agreement, shall have as its exclusive remedy the right to bring a cause of action against the defaulting responsible party. Such action shall be brought within one year from the date the developer-beneficiary knew, or should have known in the exercise of due diligence, of the default.
d. The limitations set forth above shall be deemed as incorporated into every cost recovery agreement to be administered by the town.
B. Cost Recovery for Town-Constructed Public Improvements. All cost recovery obligations for town-constructed public improvements shall be established by ordinance. The ordinance shall include a list of properties to be charged with cost recovery for the town-constructed public improvement. The ordinance establishing such cost recovery related to a town-constructed improvement shall be recorded with the Grand County Clerk and Recorder. If available, the ordinance shall include a final statement of construction costs for the improvements subject to recovery. Otherwise, the ordinance may include an estimate of construction costs for the improvements to be constructed, and a final statement of construction costs for the improvements shall be recorded as soon as practical following the completion of the improvements. After the final statement of construction costs for town -constructed or town -paid public improvements has been recorded, the town shall thereafter recover such costs pursuant to the provisions of section 9-2-8 below. (Ord. 550, Series of 2021)
Next Doc