THIS SUBDIVISION IMPROVEMENT AGREEMENT ("Agreement") is made this _____ day of _______________, 20_____, by and between the City of Greenwood Village, Colorado, a Colorado home rule municipality, (the "City") and ________________ ("Developer"), a _________________.

WHEREAS, Developer is the owner of certain real property located in the City, more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property");

WHEREAS, on _______________, 20_____, the City Council, after holding all necessary public hearings and having received a recommendation of approval from the Planning Commission, approved the final plat for the Property, a copy of which is attached hereto as Exhibit B and incorporated herein; and

WHEREAS, the approvals cited above are contingent upon the express condition that all duties created by this Agreement are faithfully performed by Developer.

NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is 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 Developer upon subdivision of the Property. All conditions in this Agreement are in addition to any requirements of the Greenwood Village Municipal Code, state statutes and other City ordinances, and are not intended to supersede any requirements contained therein.

2.

Fees. The following fees shall be paid to the City by Developer.

a.

The actual cost to the City for plan review, engineering review, hydrological and surveying review prior to and during the development process, and for construction observation, inspection and materials testing during the construction process for public improvements, and for construction observation, inspection and materials testing and electronic deliverable review during the warranty period for public improvements, and for legal services rendered in connection with the subdivision of the Property (the "Actual Costs"), plus related administrative fees not to exceed fifteen percent (15%).

b.

The cost of making corrections or additions to the master copy of the official City map and for the fee for recording the final plat and accompanying documents with the Arapahoe County Clerk and Recorder.

3.

Specific Conditions. Developer hereby agrees that: ______________________________.

4.

Title Policy. Developer shall provide a title commitment for the Property. 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 the plat, free and clear of all liens and encumbrances (other than real estate taxes which are not yet due and payable) which would make the dedications unacceptable, as the City determines in its sole discretion. The title policy evidenced by the title commitment shall be provided thirty (30) days after the recording of the final plat.

5.

Construction.

a.

All drainage structures, paved streets, including curb, gutter and slope easements, and necessary appurtenances as shown on the subdivision plat and the associated construction documents (the "Public Improvements"), as approved by the City, shall be installed and completed at the expense of Developer and dedicated or conveyed to the City. The improvements required by this Agreement and shown on the final subdivision plat submittal, as well as associated construction documents approved by the City, and the estimated costs of these improvements are set forth on Exhibit C, attached hereto and incorporated herein by this reference (the "Estimated Costs"). The Public Improvements shall be constructed in accordance with the subdivision plat and associated construction documents drawn according to regulations and construction standards for such improvements.

b.

The City may make reasonable engineering observations at Developer's expense. Observation, 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 such Public Improvements.

c.

Developer shall provide all necessary engineering designs, surveys, field surveys and incidental services related to the construction of the Public Improvements at its sole cost and expense, including reproducible "as-built" drawings certified accurate by a professional engineer registered in the State of Colorado.

6.

Completion. The obligations of Developer in Section 5 hereof shall be performed on or before ___________________, and proper application for acceptance of the Public Improvements shall be made on or before such date. Upon completion of construction of the Public Improvements, the City shall inspect the Public Improvements and certify with specificity their conformity or lack thereof to the City's specifications. Developer shall make all corrections necessary to bring the Public Improvements into conformity with the City's specifications.

7.

Warranty. Developer shall warrant any and all Public Improvements which are conveyed to the City for a period of two (2) years from the date the City grants probationary acceptance of the Public Improvements. The warranty period shall extend to the date final acceptance is granted in writing by the City. Developer shall be responsible for scheduling the necessary inspections for probationary and final acceptance. Specifically, but not by way of limitation, Developer shall warrant that:

a.

The title conveyed is marketable and its transfer rightful;

b.

All Public Improvements dedicated or conveyed are free from any security interest or other lien or encumbrance; and

c

All Public Improvements dedicated or conveyed are free of defects in materials or workmanship for a period of two (2) years, as stated above.

8.

Ownership. All Public Improvements accepted by the City shall be dedicated to the City. Upon completion of construction and conformity with the subdivision plat and associated construction plans, and any properly approved changes, Developer shall convey to the City all installed physical facilities.

9.

Performance Guarantee.

a.

To secure the construction and installation of the Public Improvements, Developer shall, prior to recording the final plat in the real estate records of Arapahoe County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the City, at Developer's expense, with an irrevocable letter of credit in which the City is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the Estimated Costs.

b.

Approval of the final plat shall be contingent upon Developer's provision of the Performance Guarantee within ninety (90) days of the execution of this Agreement. Failure of Developer to provide the Performance Guarantee shall negate the City's approval of the final plat.

c.

The Performance Guarantee shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to approval of the City Attorney.

d.

Developer shall not start the 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 Performance Guarantee.

e.

The purpose of the Estimated Costs is solely to determine the amount of security. No representations are made as to the accuracy of these estimates, and Developer agrees to pay the Actual Costs of all such Public Improvements, regardless of the Estimated Costs.

f.

The Estimated Costs may increase in the future. Accordingly, the City reserves the right to review and adjust the Estimated Costs on an annual basis. Adjustments shall be made according to changes in the Construction Costs Index as published by the Engineering News Record. If the City adjusts the Estimated Costs, the City shall give written notice to Developer. Developer shall, within thirty (30) days after receipt of said written notice, provide the City with a new or amended Performance Guarantee in the amount of the adjusted Estimated Costs.

If Developer fails to provide a new or amended Performance Guarantee, the City may exercise the remedies provided for in Section 12 hereof; provided, however, that, prior to increasing the amount of the Performance Guarantee, the City shall give credit to Developer for all Public Improvements which have actually been completed, so that the amount of the Performance Guarantee relates to the cost of required Public Improvements not yet constructed.

g.

If the Public Improvements are not constructed or completed within the period of time specified by Section 6 hereof, the City may draw on the Performance Guarantee of credit to complete the Public Improvements. If the Performance Guarantee is to expire within fourteen (14) calendar days and Developer has not yet provided a satisfactory replacement, the City may draw on the Performance Guarantee and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements as the City deems appropriate.

h.

Upon completion of construction and compliance with all conditions and requirements within the required time and the written approval of the City, the Performance Guarantee may be reduced to the amount of twenty percent (20%) of the total actual cost of construction and installation of the Public Improvements. The reduced Performance Guarantee shall be held by the City during the two-year warranty period.

10.

Nuisance Conditions. Developer shall prevent the existence of any nuisances by way of its construction activities, as nuisances are defined by the Greenwood Village Municipal Code. If the City determines that a nuisance exists, Developer shall be subject to the provisions of the Greenwood Village Municipal Code regarding the abatement of nuisances and the cost assessed therefor. If the nuisance is not abated or an abatement plan is not submitted to the satisfaction of the City, the City may, upon thirty (30) days' notice under this Agreement, draw upon the Performance Guarantee to pay the cost of abating the nuisance, including any expenses and penalties incurred under the Greenwood Village Municipal Code. The City may exercise this right in addition to, or in lieu of, the withholding of permits or certificates of occupancy. The decision to draw on the Performance Guarantee shall be within the sole discretion of the City.

11.

Indemnification.

a.

Developer hereby agrees to indemnify and hold harmless the City, 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 any act or omission of Developer, or of any other person or entity for whose act or omission Developer is liable, with respect to construction of the Public Improvements; and Developer shall pay any and all judgments rendered against the City as the result of any suit, action or claim, together with all reasonable expenses and attorney fees incurred by the City in defending any such suit, action or claim.

b.

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.

12.

Breach.

a.

If Developer breaches this Agreement, the City may take such action as permitted or authorized by law, this Agreement or the ordinances of the City, as the City deems necessary to protect the public health, safety and welfare. The remedies include, but are not limited to:

i.

The refusal to issue any building permit or certificate of occupancy;

ii.

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;

iii.

A demand that the security given for the completion of the Public Improvements be paid or honored; or

iv.

Any other remedy available at law or in equity.

b.

Unless necessary to protect the immediate health, safety and welfare of the City, or to protect the interest of the City with regard to security given for the completion of the public improvements, the City shall provide Developer thirty (30) days' written notice of its intent to take any action under this Section, during which Developer may cure the breach and prevent further action by the City.

c.

The rights and remedies of the City under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the City's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed.

d.

Should this Agreement become the subject of litigation to resolve a claim of breach by Developer and a court of competent jurisdiction determines that Developer was in breach, Developer shall pay the attorney fees, expenses and court costs of the City.

13.

Waiver. In executing this Agreement, 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 Developer as set forth herein, and concerning the procedure, substance and form of the ordinances or resolutions adopting this Agreement. Developer expressly agrees that the City cannot be legally bound by the representations of any of its officers or agents or their designees, except in accordance with the Greenwood Village Municipal Code and the laws of the State of Colorado.

14.

Modification. This Agreement shall not be modified, except by subsequent written agreement of the parties hereto.

15.

Integration. This Agreement and any attached exhibits constitute the entire Agreement between Developer and the City, superseding all prior oral or written communications.

16.

Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.

17.

Severability. If any provision of this Agreement is determined to be void by any court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. It is the intention of the parties hereto that, if any provision of this Agreement is capable of two (2) constructions, one (1) 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.

18.

Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Arapahoe County, Colorado.

19.

Force Majeure. When Developer is required to complete the construction, repair or replacement of Public Improvements by an agreed deadline, 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 Developer, including but not limited to acts of God, weather, fires and strikes.

20.

Assignment. There shall be no transfer or assignment of any of the rights or obligations of Developer under this Agreement without the prior written approval of the City.

21.

Recordation. This Agreement shall be recorded in the real estate records of Arapahoe County and shall be a covenant running with the Property.

22.

Title and Authority. 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 individuals, that the undersigned individuals have full power and authority to enter into this Agreement. Developer and the undersigned individuals understand that the City is relying on such representations and warranties in entering into this Agreement.

23.

Third Parties. There are no intended third-party beneficiaries to this Agreement.

WHEREFORE, the parties hereto have executed this Agreement on the day and year first above written.

CITY OF GREENWOOD VILLAGE   

_______________________________________
Mayor                

ATTEST:

_____________________________________
City Clerk

APPROVED AS TO FORM:

_____________________________________
City Attorney

DEVELOPER              

By: ____________________________________

Name: _________________________________

Title: __________________________________

STATE OF COLORADO  )
) ss.
COUNTY OF ARAPAHOE  )

The foregoing instrument was subscribed, sworn to, and acknowledged before me this ______ day of _____________, 20___, by _________________________ as the _______________________ of ______________________________________________.

_______________________________________
Notary Public

(SEAL)

My commission expires: ____________________.