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HomeMy WebLinkAbout22-111 Maintenance Agreement Saddleback Heights Homeowners Association 10-12-2022RESOLUTION NO.22-111 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, APPROVING A MAINTENANCE AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND SADDLEBACK HEIGHTS HOMEOWNERS' ASSOCIATION REGARDING CERTAIN REAL PROPERTY LOCATED WITHIN THE SADDLEBACK HEIGHTS SUBDIVISION WHEREAS, the Town entered into that certain Subdivision Agreement, dated October 7, 2005 (the "Original Agreement") for the Saddleback Heights Subdivision ("Subdivision") with Saddleback Ventures, LLC and Twin Silos, LLC ("Original Subdivider"); and WHEREAS, Section 4.3 of the Original Agreement provided that Original Subdivider or a successor Homeowners' Association would maintain Outlot B within the Subdivision until the Town assumed responsibility 10 years after final acceptance of the public improvements for the Subdivision, even though both the Final Plat and Final Development Plan for the Subdivision imposed such maintenance obligation on a Homeowners' Association to be established by the Original Subdivider and contained no such commitment by the Town; and WHEREAS, the Town and CCC Holdings, LLC, as the successor in interest to the Original Subdivider ("Subdivider") entered into that certain Assignment and First Amendment to Subdivision Agreement on August 28, 2013 ("First Amendment"), whereby Subdivider agreed to assume the maintenance obligation for Outlot B within the Subdivision as set forth in Section 4.3 of the Original Agreement; and WHEREAS, Subdivider ultimately elected to establish and organize a Homeowners' Association, known as the Saddleback Heights Homeowners' Association ("HOA"), to maintain Outlot B, and the HOA has been maintaining Outlot B ever since; and WHEREAS, the Town and the HOA desire to enter into an agreement to eliminate the conflict between the Final Plat, Final Development Plan and Section 4.3 of the Original Agreement regarding maintenance of Outlot B, and to clarify the entity who will be responsible for maintaining Outlot B within the Subdivision. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Maintenance Agreement between Saddleback Heights Homeowners' Association and the Town of Firestone for the reclamation and maintenance of certain real property located within the Saddleback Heights Subdivision is approved in substantially the same form as the copy attached hereto and made a part of this resolution. The Mayor is authorized to execute the Maintenance Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this 12th day of October, 2022. TgW,N OFF TONE, COLORADO Drew Peterson, Mayor T ,ST: r Mi tam una Gonzalez, Acting Town Clerk I MAINTENANCE AGREEMENT (Saddleback Heights) S NANCE AGREEMENT ("Agreement") is hereby made and entered into this day of 2022 (the "Effective Date'), by and between the TOWN OF FIRESTONE, COLORADO, a Colorado municipal corporation (the "Town"), and SADDLEBACK HEIGHTS HOMEOWNERS' ASSOCIATION, established and organized under the Colorado Common Interest Community Act, C.R.S. § 38-333-101 et seq. as a Colorado non-profit corporation ("HOA"). AGREEMENT NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Reclamation. Beginning in October 2022, the Town, at its own cost and expense, shall perform all work in connection with and reasonably incidental to revegetating and reclaiming ("Reclamation Work") that portion of the detention pond area within Outlot B, as generally depicted on the attached Exhibit A ("Reclaimed Site'j, to a riparian and upland habitat. The Town shall have sole discretion and decision -making authority, management, and control over the Reclamation Work. a. Momtorin . As part of the Reclamation Work, the Town will monitor the revegetation for a one-year period only following the initial seeding of the Reclaimed Site ("Plant Establishment Period"), to evaluate and determine initial seedling establishment. During the Plant Establishment Period, the Town may perform the following activities: (i) weed control; (ii) replanting; (iii) reseeding or overseeding; (iv) repairing erosion control, if applicable; (v) stabilizing eroded areas; (vi) installing protection from animal damage, if needed; (vii) temporary irrigation, as needed; (viii) debris removal; and (ix) any other measures as may be necessary or helpful for establishment (collectively, "Corrective Measures"). Thereafter, HOA shall have the sole and exclusive responsibility for the long-term monitoring of the Reclaimed Site, including without limitation performing any and all Reclamation Work or Corrective Measures, to achieve the successful revegetation of the Reclaimed Site. Upon the expiration of the Plant Establishment Period, the Town shall have no further obligation or financial responsibility to perform any Reclamation Work or Corrective Measures at the Reclaimed Site. b. Liability . This Agreement imposes no liability, of whatever kind or nature, on the Town arising from or relating to any measures undertaken by the Town pursuant to Section I of this Agreement or in the event the Reclamation Work or Corrective Measures fail to function or operate properly. HOA hereby waives any and all claims which HOA may or might hereafter have or acquire against the Town for loss or damage arising from this Agreement, except to the extent such claims are caused by the willful misconduct of the Town. 2. Maintenance of Outlot B. HOA shall have the sole and exclusive responsibility for the maintenance, upkeep and repair of the entirety of Outlot B, including without limitation the Saddleback IIcighm Mainlen==Ag,ame,d Reclaimed Site (after the Plant Establishment Period), all landscaping and any and all other improvements located therein, as identified on the final plat for Saddleback Heights, recorded in the Weld County Clerk and Recorder's Office on November 22, 2005 at Reception No. 3341949. This provision shall not be construed to permit or allow the HOA, in performing this maintenance responsibility, to mow, prune, re -shape, groom, irrigate, alter, or otherwise remove any vegetation installed within the Reclaimed Site. 3. Indemnification. HOA agrees to indemnify, defend, and hold harmless the Town, its officers, employees, and insurers from and against all liability, claims, damages, losses, expenses, and demands caused by an injury or death to any person or damage to property arising out of or resulting from. (a) this Agreement; (b) the breach of any terms of this Agreement; (c) the Town's performance of this Agreement; or (d) the negligent act or omission of HOA, its employees, agents, contractors, guests, or invitees, if the same shall in any way be connected with or result from the HOA's performance of any obligation imposed upon it under this Agreement. HOA agrees to investigate, handle, respond to, and to provide defense for and defend against any such liability, claims, damages, losses, expenses, or demands at its sole expense, or, at the option of the Town, agrees to pay the Town or reimburse the Town for the defense costs incurred by the Town in connection with any such liability, claims, damages, losses, expenses, and demands. HOA also agrees to bear all other costs and expenses related thereto, including court costs and reasonable attorney fees, whether or not any such liability, claims, damages, losses, expenses, or demands alleged are groundless, false, or fraudulent. 4. Risk of Loss. HOA further assumes all risk of loss, including without limitation business interruption and lost profits, and hereby waives all claims HOA may have or assert, or that of its employees, agents, contractors, guests, or invitees, against the Town as a result of this Agreement, whether such loss, damage, or destruction may be caused by theft, weather conditions, casualties, vandalism, fire, flooding, riots, wars, or otherwise. The Town shall in no event be answerable or accountable therefor, and the HOA shall not be entitled to any compensation or recovery from the Town for any such loss, damage, or destruction unless caused by the willful misconduct of the Town. 5. Governmental Immunity. The Town is relying on and does not waive or intend to waive by any provision of this Agreement the monetary limitations or any other rights, immunities, and protections provided under the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101 et seq., as f -om time to time amended, or otherwise available to the Town and its officers and employees. 6. Authority. Each Party represents and warrants that it has the power and authority to execute this Agreement and that there are no third -party approvals required to execute this Agreement or to comply with the terms or provisions contained herein. 7. Entire Agreement. This Second Amendment contains the entire agreement of the Parties with respect to the subject matter hereof and may not be amended or modified except by an instrument executed in writing by the Parties. Saddleback Hvghts MabIDe Agar mmt S. Successors and Assigns. This Assignment shall be binding upon the parties and the successor entity of any party, and will be deemed a covenant running with the land and will be binding upon all successors in ownership of the land. 9. Headings. The section headings herein shall have no legal significance and are used solely for convenience of reference. 10. Counterparts and Facsimile. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed to constitute one and the same instrument. Each of the Parties hereto shall be entitled to rely upon a counterpart of the instrument executed by the other Party and sent by facsimile or electronic mail tninsmission. The Parties further agree that this Agreement may be executed by electronic copies of signatures, and that any electronic copies of signatures shall be binding upon the Party providing such electronic copy of signature as if it were the Parry's original signature. IN WITNESS WHEREOF, the patties have executed this Agreement as of the Amendment Effective Date: TOWN OF FIRESTONE, COLORADO, a municipal corporation BY: Drew Peterson, Mayor ATTEST: APPROVED AS TO FORM: sAu d4 "I UM WrU � � �.��(`((& William P. Hayashi, To homey HOA SADDLEBACK HEIGHTS HOMEOWNERS' ASSOCIATION BY: O clvee-41 Name: 11 t Title: eao rj OF' Dt r Pf l2r5) f {} t"-Sra�ell STATE OF COLORADO) � � � gow n COUNTY OF 'd� �1 Yt°cf w�1 V Pr( . SaMebeck Heights MaWt=w=Agm=wm