HomeMy WebLinkAboutRiley's RoostSUBDIVISION IMPROVEMENT AGREEMENT C am )
THIS AGREEMENT made this 16 day of November, 2004 by and
between the CITY OF WHEAT RIDGE, COLORADO, a home rule municipal
corporation (the "City "), and BSG Development III, LLC (the "Developer "),
together referred to as the "Parties ".
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 and made a part Q
hereof (the "Property "), commonly known as 5675 W. 37 Ave., 5685 W. 37t 1 ' t,
\i Ave., 5705 W. 37 Ave., 5715 W. 37 Ave and 5725 W 37 Ave.
On September 23, 2002 the City of Wheat Ridge, after holding all required
public hearings, approved the Final Plat for the Property titled
Riley's Roost Subdivision A copy of the Final Plat is attached hereto as
Exhibit A and incorporated herein.
The approvals cited above are contingent upon the express condition that
all duties created by this Agreement be faithfully performed by the Developer.
AGREEMENT
NOW, therefore, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which are mutually acknowledged,
the parties hereto agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms,
conditions, and 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 Charter, any and all state statutes, and
any other sections of the City of Wheat Ridge Municipal Code and are not
intended to supersede any requirements contained therein.
2. Other Requirements See Exhibit attached hereto.
3. Title Policy If applicable, title commitment for the Property shall be
provided to the City. The title commitment shall show that all property to be
dedicated 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 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 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
RECEPTION 40. r c ?14 .'.(P. s
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SUBDIVISION IMPROVEMENT AGREEMENT 04/03
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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 building 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, r ,?
(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 in this document.
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 documentation provided to the City
by the Developer. 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.
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
SUBDIVISION IMPROVEMENT AGREEMENT 04/03
(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.
7. Completion of Public Improvements The obligations of the
Developer provided for in paragraph 6 of this Agreement, including the
inspections hereof, shall be performed on or before November 16, 2005,
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 of Public Works, the City shall accept said Improvements upon
conveyance; provided, however, the City shall not be obligated to accept the
SUBDIVISION IMPROVEMENT AGREEMENT 04/03
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 Property of the City 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.
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
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
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documentation provided to the City by the Developer, 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. 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
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
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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
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 Waiver 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
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
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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: Notice to City:
�5% Dzve \oDrr\cnt IIC LL-C- Director of Public Works
Ct- 7500 West 29 Avenue
TV, of�'lb� Go go7_41 Wheat Ridge, CO 80033
24. Force Maieure 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, BSG Development III, 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 Agreement.
The Developer and the undersigned individual(s) understand that the City is
relying on such representations and warranties in entering into this Agreement.
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WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above written.
ATTEST:
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amel - . A derson, City Clerk SEAL
AS TO FORM. Cp��RP0
Dahl, City Attorney DEVELOPER
By: /
STATE OF COLORADO )
ss.
COUNTY OF
Th foregoing instrument was acknowledged before me this 1 � day of 1 1
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N A. Fi��O Witness my hand and official seal.
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My commission expires
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Not9y Public
My Commw*n�rplrQsO+,(1fif20Q6
SUBDIVISION IMPROVEMENT AGREEMENT 04103