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SUBDIVISION IMPROVEMENT AGREEMENT ,;:j" " THIS AGREEMENT made this 19th day of Februarv. 1999 by and between the CITY OF WHEAT RIDGE, COLORADO, a home rule municipal corporation (the "City"), and Mr. John Cillessen, (the "Developer"), together referred to as the "Parties" t, 1 ~ ; r RECITALS The Developer is the owner of certain real property located In the City of Wheat Ridge, which is more particularly described in Exhibit A if applicable and made a part hereof (the "Property"), commonly known as 9205 West 44th Avenue On February 14, 1977, the City Council of the City of Wheat Ridge, after holding all required public hearings, approved the final plat for the Property titled Minor Subdivision No. MS76-03 --..--.-- The 3pprovals cited above are contingent upon the express condition that all duties created by this Agreement be faithfully performed by the Developer AGREEMENT ------ NOW th8refore for and In consideration of the mutual promises and covenants cont31ned herein the Sllfficlency of which are mutually acknowledged, the parties hereto j 1["8 CiS follows 1 Purpos~ The purpose of thiS Agreement IS to set forth the terms, conditions, ;:mci fees to be paid by the Developer upon subdiVISion of the Property All conditions contained herein are In addition to any and all requirements of the City of Wheat Ridge ,)lIbrllvlslon Ordinance and Zoning Ordinance, the City of Wheat Ridge Charter, any and ;111 ::;ti'ltp statutes and any other sections of the City of Wheat Ridge Municipal Code and ,f" Ilot IlltCncjr'rl to supersede any requirements contained therein Other ReqLllremFJnts NONE :') Fpe? The Developer hereby agrees to pay City Development ReView fees 10 the City for eng!neerlng, hydrological, surveYing, legal, and other services rendered In cnnnectlon with the review of the subdivISion of the Property 4 Ii!@poll~Y A title commitment for the Property shall be provided to the City T l1e title COllllliltment sh311 show that all property to be dedicated to the City IS or shall be, '.llbs(?llu8nt T(l thE' execution ;:3Ild recor-dlnl) of thiS Agreement, free and clear of all liens ,illcJ 8flClllllhr dncps (other th;:m real estatE t;:Jxes which are not yet due and payable) The (~!ty In It ' sol,~ dNTf~tlon Ir,i'lV Clccert ar<y dedication regardless of encumbrances The title f'olwy eVldenwd lJY the title commitment shall be provided thirty (30) days after the r ccrl! dln(] of thiS ACJreement RECEPTION NO. F0813182 3/02/1999 10:55:55 PG: 001-010 PAGE FEE: 51.00 DOC.FEE: 0.00 RECORDED IN JEFFERSON COUNTY. COU1RADO l'IJI\I'III'" '!ll!,'['","Ii!.MI I<T ;I~REEMFI<T 1198 oo~ /. SBreach by 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 Council shall be notified Immediately and 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 .. i (a) The refusal to issue any building permit or certificate of occupancy; (b) The revocation of any building permit previously issued under which construction directly related to such bUilding permit has not commenced, except a building 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 during which thirty day period the Developer may cure the breach deScribed In the notice h PubliC ImprQyenl~nt~_ and Warranty All storm sewer lines, drainage '-,trllctllrf:S paved streets, Including 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 time frames set forth on Exhibit C The Public Improvements reqLlIred by thiS Agreement and shown on the construction documents approved by the [)lrec:tor nf Pllhlle Works of the City, the time frames for construction of the Improvements rind !r,fe Itf'lIl1znd cn<;ts of these Improvements are set forth on Exhibit C If applicable All F'LJt)lrc Imprnve~nents covered by thiS Agreement shall be made in accordance With the (IJllstructlon documents drawn according to regulations and construction standards for such Improvement and approved by the Director of PubliC Works of the City It IS ullderstood bV the Parties that the description of the PubliC Improvements may be general In nClture and that reasonable modifications of the scope, nature, costs and Similar dspects of the PubliC Improvements may be necessary to secure final approval of the PlIblll Irnprovermmts The quantities and locations for the PubliC Improvements are based on Information that was available at the time of approval of the Final Plat Additional PllbllC Improvements may be reqUired, and Developer shall be responsible for submitting reVISions to the Final Plat approved by the City TI1(; Dl:veloper shall warrant any and all PubliC Improvements which are conveyed to the City pursuant to thiS Agreement for a period of two (2) years from the date the City's [)lrector of PubliC Works certifies that the same conform With speCifications approved by the City SpeCifically but not by way of limitation, the Developer shall warrant the fnllnwlnq ,1,1('[,(' i ,I, ,I, Ir,,1;'I. \ i ~~i Ii I,' .!..,:! lMt~JT 1.'~j0 -1- DO 2.. (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 I..,sues the first certificate of occupancy 11l'c;taIIClligrlgfJrafflc Slqnal A traffic signal may be required to serve thiS development DctCrtlllnatlon of the need for the Signal shall be made by the City's PubliC Works [)Irec:tor hereinafter "Director" prior to building permit issuance and based upon a traffic study for thiS development approved by the City The Developer shall proVide collateral for the estimated cost of installation of the traffic Signal prior to building permit Issuance If the Director has determined that a Signal is needed Prior to building permit Issuance the Developer shall provide traffic signal plans for approval by the Developer and the Colorado Department of Transportation The Developer shall notify the City In writing, a minimum of one hundred sixty (160) days prior to the deSired time of Installation/modification of the traffic Signal In order to ,lllow the City to coordinate the timing of the traffic Signal Improvements If the Director 3fJproves Installation of the Signal based on meeting traffic warrants, the City shall then notify the Developer In writing of the exact amount reqUired for the traffic signal Improvements The Developer shall then make payment to the City in cash for the reqLJlred amount Within sixty (60) days of receipt of such letter The City Will not commence traffiC Signal improvements until the Developer has paid to the City the total Clmount determined hy the Director to be the total cost of improvements R Ohc;PI vatlonJllSR.~c:.llQ_n and Testlnq The City shall have the right to require I (;dSlJlldlJIEc~ (;ll~Jlm~(.,mlCJ observations and testing at the Developer's expense Observation clnd 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 Such approval shall be made bV the CltV 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 I mder thiS Agreement may Without cost or claim against the City be suspended by the Director for slIhstantlal cause )l:f;:)~'\.':~,I( ItJ 11\M'F'1 IVFMFf'JT ;~('REEMENT 1/98 -,- OO'L The Director shall, within a reasonable time after presentation, make decisions in writing on all claims of Developer and on all other matters relating to the execution and progress of the work or the interpretation of this Agreement, the master plan and speCifications All such decisions of the Director shall be final The Director shall make all determinations of amounts and quantities of work performed hereunder To assist him In this work Developer shall make available for Inspection any records kept by Developer The Director shall make all determinations of amounts and quantities of work performed hereunder To assist him in this work Developer shall make available for inspeclion any records kept by Developer The Director and his authorized representatives shall have free access to the work at all times, and Developer shall furnish them with facilities for ascertaining whether the work ht'lng f,nrformprl or the work which has been completed, IS In accordance with the r equlrelllents of the Agreement The Director Will make periodiC observations of construction (sometimes commonly referred to as "supervision") The purpose of these observations and construction checking IS to determine the progress of the work and to see if the work is being performed In accordcmce With the plans and speclficalions He will In no way be responsible for how Hw work IS performed, safety In, on, or about the Job site, methods of performance, or tlmellllf,<;S In the performance of the work. Inspectors nlay be appOinted to Inspect materials used and work done Inspections Illay extend to all or any part of the work and to the preparation or manufacture of the materials to be used The Inspectors will not be authOrized to alter the provIsions of this Agreement or any speCifications or to act as foreman for Developer The Inspector Will have authOrity to reject defective matenals and to suspend any work that IS being done Improperly subject to the final deCISion of the Director 9 (:Qmpletlon of Public Improvements The obligations of the Developer prOVided for In paragraph 6 of thiS Agreement. Including the Inspections hereof, shall be performed ('Il or bdore /\uqust 15, 1999, and proper application for acceptance of the Puhllc Improvements shall be made on or before such date Upon completion of wnstructlon by the Developer of such Improvements, the City's Director of PubliC Works or deSignee, shall Inspect the Improvements and certify with speCifiCity ItS conformity or iClck thereof to the City's speCifications The Developer shall make all corrections necessary to bring the Improvements Into conformity with the City's speCifications Once Clpf,roved by the City's Director of PubliC Works, the City shall accept said Improvements upon COIlVf:V,lnCe prOVided, however the City shall not be obligated to accept the PubliC 1111[lrOI(( I1Iprlt' unt:I thp actUiJ! costs rlescrlbed In thiS Agreement are paid in full by the [l;-;vr,lopd 10 Protec:t.!on Developer, at its expense, shall continuously maintain adequate protection of all Improvements from damage prior to acceptance by the City and shall I'rotec:t the CltV s property from Injury and loss arising In connection With thiS Agreement. 'H1):\,T,1I 'I.,J 1~/rPP( \/[Mr_r~T A(~RFEM~NT 1 'q(-\ --l- 001.- Devp-Ioper 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 Developer shall take all reasonable effort necessary to prevent damage to pipes, conduits, and other underground structures and to overhead Wires, and to water quality Developer shall protect carefully from disturbance or damage all land monuments and property marks until an authorized agent of the City has witnessed or otherwise referenced their location, and shall not remove them until directed. 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 thClt eXisting before such damage or injury Developer shClII at all times, whether or not so speCifically directed by the Director, tClke necessary precautions to Insure the protection of the publiC Developer shall furnish elect and maintain at Its own expense all necessary barricades, SUitable and sufficient red IICJhts 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 11 Related J::9sts - PubliC Improvements The Developer shall provide all r,eceSC;;'lf V englnp-erlllg deSigns surveys, field surveys, testing and incidental services ff.;I:lted to the construction of the PubliC Improvements at ItS sole cost and expense, Inc:llldlnC] final drCllllcH:W study letter certified accurate by a profeSSional engineer registered II, the State of Colorado 12 Improvements to be the Propertv of the City All PubliC Improvements for roads concrete curb and gutters, public storm sewers and publiC drainage improvements Clccepterl by the City shall be dedicated to the City and warranted for a period of twenty- four (24) months follOWing acceptance by the City, as prOVided above 13 Performance Guarantee In order to secure the construction and Installation ---.--- .__....._~ of the PubliC Imrrovements the Developer shall, prior to recording the Final Plat, if aprllcable In the rRal estate records of Jefferson County, which recording shall occur no later than nrnetv (90) days after the execution of this Agreement, furnish the City, at the [)eveloper'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 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 If applicable to secure the performance and completion of the PubliC Il1lprovelTlPnts ClS rf:qutred by Section 3 c 5 of the Wheat Ridge SubdiVISion Regulations j Ifl,[lL/1 ):1 H J I~,H';, I ,:f f,~r ~J: .".,( .;F\~ F"~jlrN f 1 'q:.: _"i._ 001- The Developel agrees that approval of this Agreement by the City IS contingent upon the ! Developer's provIsion of an Irrevocable letter of credit to the City within ninety (90) days of the execution of this Agreement in the amount and form provided herein 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 substantially In the form and content set forth In Exhibit D, If applicable, and 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, earth work, 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 City's Director of Public Works, as set forth in Exhibit C If applicable If, however, they are unable to agree, the Director of Public Works' estimate shall govern after giving consideration to information provided by the Developer including, hill riot 1IIl1lted to construction contracts and engineering estimates The purpose of the cost estlmClte I" soledy to dete,mlne the amount of security No representations are made l~'; to th(~ ,1CD II ;JCV of these estrmates and the Developer agrees to pay the actual costs of all such Puhllc Improvements The estimated costs of the Public Improvements may Increase In the future Accordln~Jly, the City reserves the right to review and adjust the cost estimate on an annual baSIS If the City adjusts the cost estimate for the Public Improvements, the City shall give written notice to the Developer The Developer shall, within thirty (30) days after receipt of said written notice prOVide the City with a new or amended letter of credit In the amount of the adjusted cost estimates If the Developer refuses or fails to so prOVide the City with Cl new or amended letter of credit, the City may exercise the remedies prOVided for In thiS Aqreement prOVided however, that prior to Increasing the amount of additional security I eqlJlred, the City shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at all time shall relate to the cost of reqUired Public Improvements not yet constructed In the event the PubliC Improvements are not constructed or completed Within the period of time speCified by paragraph 9 of thiS Agreement or a written extension of time Illlltllally Clqreed Ilpon the parties to this Agreement, the City may draw on the letter of l'IHCJlt to cOlllpletlJ HlO PubliC Improvements called for in this Agreement In the event the letter of r:r edll 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 reqlllrements 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 ,IIHr)IVI~,1( ,rl IMI'R' ,VFMENT A1~REEMENT 1/98 -h- txJ'L Illay be used to complete the Improvements 14 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 descnption caused by, arising from or on 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 and shall Indemnify and hold harmless the City for any property tax liability 15 Waiver of Defects In executing this Agreement, the Developer waives all objections It Illay have concerning defects, if any, In the formalities whereby it IS executed or r:oncernlng 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 1 h Ihlrd_Par:tyBenefl~!aries There are and shall be no third party benefiCiaries to thiS A'lreement 17 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 wntten, 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 junsdlclion 1 H B_~Leilse 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 19 Cj3ptlons The captions to this Agreement are inserted only for the purpose of convenient reference and In no way define, limit, or prescnbe the scope or intent of thiS Aqreement or any part thereof .'c, Binding Effect. ThiS Agreement shall be binding upon and Inure to the 11l'11f'flt ()f thf: P;lIt If,S hereto and their respective heirs, successors, and assigns as the Cd Sf' 111 ,'1 V tl" 21 No Wal_ver 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 contllllJlng waiver Imless otherwise expressly prOVided nor shall the waiver of anv default hereunder be deemed a waiver of any subsequent default hereunder ,i If< 11\/i: I, dJ lHI)~: { ; ,,'FMF:rIT /\,1 ;REE::.MEJJT 1/Q,S -'- 001- 2:' Irl\i<lllrl PrnvlSIQQ If any provIsion of this Agreement shall be determined to oe vOid by any court of competent jurlsdlclion, then such 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 23 Governinq 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 24 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 Clttomey's fees and court costs 25 Notlc~ All notices reqUired under this Agreement shall be In writing and shCll1 be hand dellvp-red or sent by registered or certified mall retum receipt requested, postdSW prepdld to the addresses of the parties herein set forth All notices so given shall he 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 Cldrlress to which future notices shall be sent Notice to Developer' Mr John Cillessen JAC Buildinq, Inc. 12300 W 49th Place, Unit 2 Wheat Ridqe, CO 80033 Notice to City Mr Robert Goebel, PE Director of PubliC Works 7500 West 29th Avenue Wheat Ridge, CO 80215 26 Force Maleure 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 for eqolnq dlle to I mforeseeClble causes beyond the control and Without the fault or 11f'CJIIf]f'llre of the Dr,vf:loper Including, but not restricted to acts of God, weather, fires and strikes 27 ~s~gnment or Assiqnments There shall be no transfer or assignment of any of the rights or obligations of the Developer under thiS Agreement Without the prior written ,CJpprovClI of thp- City ::'8 r~er:oldlng of Bgr.~~fllilllt ThiS Agreement shall be recorded in the real ,~, tilte rf'rnrrl" nf Jpffp-rson COLmty and shall be a covenant running With the Property in llfJr)I\/1 Irlf! IHP~., lIJE::MF~Jl ^(,REEMlNl l'~ji-. -x- 00'2.- order to put prospective purchases or other Interested parties on notice as to the terms and provIsions hereof 29 Title and Authority The Developer, 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 Indlvidual(s) has or have full power and authority to enter Into this Subdivision Improvement Agreement. The Developer and the undersigned Individual(s) understand that the City is relying on such representations and warranties in entering into this Agreement. WHEREFORE, the parties hereto have executed this Agreement on the day and year first above written CITY OF WHEAT RIDGE, COLORADO By q: ~~ retchen Cerveny, Mayor ~ !\ TTf S1 " ;' ;( - )} .' f I ____L--1-"2!:--"'t..._~-4~L~ Wand8 Sang City Cled~-J ^ ' 'H;11\jl:;II)~J !r\~p~~II\!F!\M ~.JI f,I,h'fFMFNT 110R -()- STATE OF COLORADO COUNTY OF DEVELOPER ~~- /" / /"'- By , _( ~ c: / -- / / ---- ) ) ) ss The foregoing Instrument was 1999, by ~.=" . of acknowledged before me this ...L..____...L / ' Witness my hand and offiCial seal Mv C', lInmlSSlon expires , S-~.~..(/,: \~".. .........,'- t..... . .:r::- t, \. .;.1 <.,,! I .._ .(:2:; ~~. '/ \0'-:;' ~ fl ... ~,,,.... ~.. .. ;' .::. -: ~ ~ ~ ~ ~ r~{. t"'I.. ll?~ to" ~. ~ .... f "I" \ ~,' .. (,,') ~ - '. (c. "I'" ._tf <J ""4< .",."'~,(" ....'" . (j c~ ". I " I ,.! i' ') ~-~~.----LL~.!~. ~,_,-,,_~_________ Notary PubliC f,lil~'I! ~;Ir,"f'f 'I ,'/f J "I,i'iiMlfJI1q,' ~I(l- OOJ.- , ' ; , day of , as