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HomeMy WebLinkAbout0026dedicated to the City is or shall be, subsequent to the execution and recording of this Agreement, free and clear of all liens and encumbrances (other than real estate taxes which are not yet due and payable). The City, in its sole discretion, may accept any dedication regardless of encumbrances. The title policy evidenced by the title commitment shall be provided thirty (30) days after the recording of this Agreement. 4. Breach b_y the Developer; the City's Remedies. In the event of a breach of any of the terms and conditions of this Agreement by the Developer, the City may take such action as permitted and/or authorized by law, this Agreement, or the ordinances and Charter of the City as the City deems necessary to protect the public health, safety and welfare; to protect lot buyers and builders; and to protect the citizens of the City from hardship and undue risk. These remedies include, but are not limited to: (a) The refusal to issue any building permit or certificate of occupancy; (b) The revocation of any bui ld ing permit previously issued under which construction directly related to such building permit has not commenced, except a building permit previously issued to a third party, (c) A demand that the security given for the completion of the Public Improvements be paid or honored, or (d) Any other remedy available at law or in equity. Unless necessary to protect the immediate health, safety and welfare of the City or to protect the City's interest with regard to security given for the completion of the Public Improvements, the City shall provide the Developer thirty (30) days written notice of its intent to take any action under this paragraph. The Developer may cure the breach described in the notice. 5. Public Improvements and Warranty. All storm sewer lines, drainage structures, paved streets, curb, gutter and sidewalk, and necessary appurtenances as shown on the subdivision plat and the associated construction documents (the "Public Improvements" or "Improvements") as approved by the Director of Public Works or designee of the City, shall be installed and completed at the expense of the Developer within the timeframes set forth on Exhibit C. The Public Improvements required by this Agreement and shown on the construction documents approved by the Director of Public Works, hereinafter "Director", the timeframes for construction of the Improvements and the itemized costs of these Improvements are set forth on Exhibit C if applicable. All Public Improvements covered by this Agreement shall be made in accordance with the construction documents drawn according to regulations and construction standards for such improvement and approved by the Director. It is understood by the Parties that the description of the Public Improvements may be general in nature. and that reasonable modifications of the scope, nature, costs, and similar aspects of the Public Improvements may be necessary to secure final approval of the Public Improvements. The quantities and locations for the Public Improvements are based on information that was available at the time of approval of the Final Plat. 2 The Developer shall warrant any and all Public Improvements for a period of two (2) years from the date the Director certifies that the Public Improvements conform to specifications approved by the City. Specifically, but not by way of limitation, the Developer shall warrant the following: (a) That the title conveyed shall be marketable and its transfer rightful ; (b) Any and all facilities conveyed shall be free from any security interest or other lien or encumbrance; and (c) Any and all facilities so conveyed shall be free of defects in materials or workmanship for a period of two (2) years as stated above. (d) To the degree the Developer is required to install and maintain landscaping on public or private property, it is the obligation of Developer to maintain the required landscaping for two (2) growing season(s). The City will finally accept for maintenance all Public Improvements after the warranty period has expired provided all warranty work has been completed. The City shall accept for snow removal purposes only, all dedicated public streets after the City issues the first certificate of occupancy. 6. Observation, Inspection and Testing. The City shall have the right to require reasonable engineering observations and testing at the Developer's expense. Observation and testing, acquiescence in , or approval by any engineering inspector of the construction of physical facilities at any particular time shall not constitute the approval by the City of any portion of the construction of such Public Improvements. The City shall make approval, only after completion of construction and in the manner hereinafter set forth. The Director is designated by the City to exercise authority on its behalf under this Agreement and to see that this Agreement is performed according to its terms. Work under this Agreement may, without cost or claim against the City, be suspended by the Director for substantial cause. The Director and his authorized representatives shall have free access to the work at all times. The Director, or his designee, will make periodic observations of construction (sometimes commonly referred to as "supervision"). The purpose of these observations and construction checking is to determine if the work is being performed in accordance with the plans and specifications. Inspectors may be appointed to inspect materials used and work done. Inspections may extend to all or any part of the work and to the preparation or manufacture of the materials to be used. The Inspector will have authority to reject defective materials and to suspend any work that is being done improperly, subject to the final decision of the Director. 3 7. Completion of Public Improvements. The obligations of the Developer provided for in paragraph 5 of this Agreement, including the inspections hereof, shall be performed on or before 3/21/16, and proper application for acceptance of the Public Improvements shall be made on or before such date. Upon completion of construction by the Developer of such Improvements, the Director or designee, shall inspect the Improvements. The Developer shall make all corrections necessary to bring the Improvements into conformity with the approved documents. Once approved by the City's Director q of Public Works, the City shall accept said Improvements upon conveyance; provided, however, the City shall not be obligated to accept the Public Improvements until the actual costs described in this Agreement are paid in full by the Developer. 8. Protection. Developer, at its expense, shall continuously maintain adequate protection of all Improvements from damage prior to acceptance by the City and shall protect the City's property from injury and loss arising in connection with this Agreement. Developer shall make good any such damage, injury or loss except such as may be caused directly by authorized agents or employees of the City. Developer shall adequately protect adjacent property and shall provide and maintain all passageways, guard fences, lights and other facilities for protection required by public authority or local conditions. Developer shall be responsible for damage to any public and private property on and adjacent to the site of Developer's Improvements caused by negligent or willful acts of Developer, its agents or subcontractors. When any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the construction of Improvements, or in consequence of the non-execution thereof on his part, such damaged property shall be restored by Developer at its own expense to a condition similar or equal to that existing before such damage or injury. Developer shall at all times take necessary precautions to ensure the protection of the public. Developer shall furnish, erect and maintain, at its own expense, all necessary barricades, suitable and sufficient red lights, construction signs, provide a sufficient number of watchmen, and take all necessary precautions for the protection of the work and safety of the public through or around his construction operations as Developer and the Director shall deem reasonably necessary. 9. Related Costs -Public Improvements. The Developer shall provide all necessary engineering designs, surveys, field surveys, testing and incidental services related to the construction of the Public Improvements at its sole cost and expense. If applicable, a final drainage letter certified accurate by a professional engineer registered in the State of Colorado shall also be supplied at the request of the Director. 10. Improvements to be the Pro erty of the Cjty. All Public Improvements for roads, concrete curb and gutters, public storm sewers and public drainage improvements accepted by the City shall be the property of the City following acceptance by the City, as provided above. 4 11. Performance Guarantee. In order to secure the construction and installation of the Public Improvements the Developer shall, prior to recording the Final Plat, if applicable, in the real estate records of Jefferson County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the City, at the Developer's expense, with the Performance Guarantee described herein. The Performance Guarantee provided by the Developer shall be an irrevocable letter of credit in which the City is designated V)/. as beneficiary, for one hundred twenty-five percent (125%) of the estimated costs of the Public Improvements to be constructed and installed as set forth in Exhibit C, to secure the performance and completion of the Public Improvements as required by Section 26-110 of the Wheat Ridge Code of Laws. An irrevocable letter of credit shall be supplied to the City within ninety (90) days of the execution of this Agreement in the amount and form approved by the City. Failure of the Developer to provide an irrevocable letter of credit to the City in the manner provided herein shall negate the City's approval of this Agreement. Letters of credit shall be subject to the review and approval of the City Attorney. The Developer shall not start any construction of any public or private improvement on the Property including, but not limited to, staking, earthwork, overlot grading or the erection of any structure, temporary or otherwise, until the City has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Director, as set forth in Exhibit C if applicable. If, however, they are unable to agree, the Director's estimate shall govern after giving consideration to information provided by the Developer including, but not limited to, construction contracts and engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 7 of this Agreement or a written extension of time mutually agreed upon the parties to this Agreement, the City may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the City may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish Public Improvements or correct problems with the Public Improvements as the City deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time, the Developer shall issue an irrevocable letter of credit to the City in the amount of twenty-five percent (25%) of the total cost of construction and installation of the Public Improvements, to be held by the City during the warranty period. If the Public Improvements are not completed within the required time, the monies may be used to complete the improvements. 12. Indemnification. The Developer shall indemnify and hold harmless the City and its officers, employees, agents or servants from any and all suits, actions, and claims of every nature and description caused by, arising from or on 5 account of this Agreement any act or omission of the Developer, or of any other person or entity for whose act or omission the Developer is liable, with respect to the Public Improvements; and the Developer shall pay any and all judgments rendered against the City as a result of any suit, action, or claim, together with all reasonable expenses and attorney's fees and costs incurred by the City in defending any such suit, action or claim. The Developer shall pay all property taxes on the Property dedicated to (- the City, if any, and shall indemnify and hold harmless the City for any property 1..(1 tax liability. 13. Waiver of Defects. In executing this Agreement, the Developer waives all objections it may have concerning defects, if any, in the formalities whereby it is executed, or concerning the power of the City to impose conditions on the Developer as set forth herein, and concerning the procedure, substance, and form of the ordinances or resolutions adopting this Agreement. 14. Third Party Beneficiaries. There are and shall be no third party beneficiaries to this Agreement. 15. Modifications. This instrument embodies the whole agreement of the Parties. There are no promises, terms, conditions, or obligations other than those contained herein; and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties. There shall be no modification of this Agreement except in writing, executed with the same formalities as this instrument. Subject to the conditions precedent herein, this Agreement may be enforced in any court of competent jurisdiction. 16. Release of Liability. It is expressly understood that the City cannot be legally bound by the representations of any of its agents or their designees except in accordance with the City of Wheat Ridge Code of Ordinances and the laws of the State of Colorado. 17. Captions. The captions to this Agreement are inserted only for the purpose of convenient reference and in no way define, limit, or prescribe the scope or intent of this Agreement or any part thereof. 18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns as the case may be. 19. No WaiveJ.. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provisions herein, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver of any default hereunder be deemed a waiver of any subsequent default hereunder. 20. Invalid Provision. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such 6 determination shall not affect any other provision hereof, all of the other provisions shall remain in full force and effect. It is the intention of the Parties that if any provision of this Agreement is capable of two constructions, one of which would render the provision void, and the other which would render the provision valid, then the provision shall have the meaning which renders it valid. 21 . Governing Law. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. Should either party institute legal suit or action for enforcement of any obligation contained herein, venue of such suit or action shall be in Jefferson County, Colorado. 22. Attorneys Fees. Should this Agreement become the subject of litigation to resolve a claim of default of performance or payment by the Developer and a court of competent jurisdiction finds in favor of the City, the Developer shall pay the City's attorney's fees and court costs. 23. Notice. All notices required under this Agreement shall be in writing and shall be hand delivered or sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses of the parties herein set forth . All notices so given shall be considered effective seventy-two (72) hours after deposit in the United States mail with the proper address as set forth below. Either party by notice so given may change the address to which future notices shall be sent. Notice to Developer: InCarnation CSC II, LLC 621 17'h Street Suite 1777 Denver, CO 80233 Notice to City: Director of Public Works 7500 West 291h Avenue Wheat Ridge, CO 80033 24. Force Majeure. Whenever the Developer is required to complete the construction, repair, or replacement of Public Improvements by an agreed deadline, the Developer shall be entitled to an extension of time equal to a delay in completing the foregoing due to unforeseeable causes beyond the control and without the fault or negligence of the Developer including, but not restricted to, acts of God, weather, fires and strikes. 25. Assignment or Assignments. There shall be no transfer or assignment of any of the rights or obligations of the Developer under this Agreement without the prior written approval of the City. 26. Recording of Agreement. This Agreement shall be recorded in the real estate records of Jefferson County and shall be a covenant running with the Property in order to put prospective purchasers or other interested parties on notice as to the terms and provisions hereof. 27. Title and Authority. The Developer, Urban Green Development LLC, expressly warrants and represents to the City that it is the record owner of the property constituting the Property and further represents and warrants, together with the undersigned individual(s) that the undersigned individual(s) has or have full power and authority to enter into this Subdivision Improvement 7 1 EXHIBIT 'A' LEGAL DESCRIPTION A PARCEL OF LAND BEING THAT SAME PARCEL OF LAND REFERRED TO IN WARRANTY DEED RECORDED AT RECEPTION NUMBER 2012129771 RECORDED AT THE JEFFERSON COUNTY CLERK AND RECORDERS OFFICE, SITUATE WITHIN THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER SECTION 24, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF JEFFERSON, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT SAID NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER SECTION 24;THENCE ALONG THE NORTH LINE OF SAID SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER SECTION 24, NORTH 89"58'46" EAST A DISTANCE OF 339.17 FEET; THENCE DEPARTING SAID NORTH LINE. SOUTH 00"16'19" EAST A DISTANCE OF 340.00 FEET TO THE SOUTHWEST CORNER OF AUDREY SUBDIVISION RECORDED IN PLAT BOOK 9, PAGE 11, RECORDED AT THE JEFFERSON COUNTY CLERK AND RECORDER'S OFFICE AND THE POINT OF BEGINNING; THENCE ALONG THE SOUTH LINE OF SAID AUDREY SUBDIVISION AND A LINE 340 FEET SOUTH OF AND PARALLEL WITH SAID NORTH LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER SECTION 24 NORTH 89.58'46" EAST A DISTANCE OF 322.69 FEET TO THE SOUTHEAST CORNER OF SAID AUDREY SUBDIVISION AND A POINT ON THE WEST LINE OF LOT 36, STEWART GARDENS, RECORDED IN PLAT BOOK 4, PAGE 23, SAID CLERK AND RECORDER'S OFFICE; THENCE SOUTH oo•16'33" EAST A DISTANCE OF 25.14 FEET TO THE NORTHWEST CORNER OF LOT 33, SAID STEWART GARDENS; THENCE ALONG THE NORTH LINE OF SAID LOT 33, SOUTH 89.59'57" EAST A DISTANCE OF 5.00 FEET; THENCE SOUTH 00"16'33" EAST, 5 FEET EAST OF AND PARALLEL WITH THE WEST LINE OF SAID LOT 33, A DISTANCE OF 148.50 FEET; THENCE ALONG THE SOUTH LINE OF SAID LOT 33, NORTH 89"59'57" WEST A DISTANCE OF 5.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 33; THENCE SOUTH 00"16'33" EAST ALONG THE WEST LINE OF SAID STEWART GARDENS A DISTANCE OF 775.52 FEET TO THE SOUTHWEST CORNER OF SAID STEWART GARDENS AND A POINT 30 FEET NORTH OF THE SOUTH LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER SAID SECTION 24, ALSO BEING THE NORTHERlY RIGHT -OF-WAY LINE OF W. 38TH AVENUE; THENCE NORTH 89"59'57" WEST, ALONG SAID NORTHERLY RIGHT -OF-WAY LINE, 30 FEET NORTH OF AND PARALLEL WITH SAID SOUTH LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER SECTION 24, A DISTANCE OF 16.50 FEET; THENCE NORTH 00"16'33" WEST, PARALLEL WITH AND 16.50 FEET WEST OF SAID WEST LINE STEWART GARDENS, A DISTANCE OF 646.22 FEET TO THE NORTHEAST CORNER OF PLAT OF HOLLEY COURTS RECORDED IN BOOK 6, PAGE 69, SAID CLERK AND RECORDER'S OFFICE; THENCE ALONG THE NORTH LINE OF SAID PLAT OF HOLLEY COURTS S89"58'46" WEST A DISTANCE OF 306.21 FEET TO THE SOUTHEAST CORNER OF SAID HARTUNG SUBDIVISION; THENCE ALONG THE EAST LINE OF SAID HARTUNG SUBDIVISION NORTH 00"16'19" WEST A DISTANCE OF 302 .• 93 FEET TO SAID SOUTHWEST CORNER AUDREY SUBDIVISION AND THE POINT OF BEGINNING; CONTAINING :t109,159 SQUARE FEET OR :t2.506 ACRES, MORE OR LESS. 9