Developer Agreement
DEVELOPER CONSTRUCTED PUBLIC IMPROVEMENTS AGREEMENT
FOR PUBLIC UTILITY IMPROVEMENTS
GOLDEN EAGLE EST A TES NO. FOUR (PHASES I & II)
This Develorer Constructed Public Improvements Agreement ("Agreement") is
entered into this Ii day of December, 2005, by and between the City of Salina, Kansas
(the "City") and Golden Eagle Estates, LTD ("Developer").
Recitals
A. Developer owns and desires to develop that property located in the City of
Salina, Saline County, Kansas, platted as Golden Eagle Estates No. Four (the
"S ubdi vision").
B. Developer desires to cause to be constructed the public improvements
necessary to develop Phases I and II of the Subdivision.
C. Developer has requested that all water, sanitary sewer, and storm drainage
improvements (with the exception of the rear-yard swale/concrete ribbon storm drainage
system) necessary for the development of Phases I and II of the Subdivision (collectively
referred to as the "Utility Improvements" and more specifically described on Attachment
A) be constructed by Stevens Contractors, LLC ("Stevens") under private contract dated
December 1,2005 between the Developer and Stevens (the "Stevens Contract") at
Developer's expense.
D. Developer has submitted a petition requesting that all grading, curbing,
guttering, paving, and rear-yard swale/concrete ribbon storm drainage system
improvements (collectively referred to as the "Street Improvements") be constructed
under the Kansas general improvement and assessment law (K.S.A. 12-6aOl, et seq.)
under a contract to be bid and awarded by the City.
E. Developer has requested, in order to expedite completion of both the
Utility Improvements and the Street Improvements, that the City award a contract for
construction of the Street Improvements prior to completion of the Utility Improvements.
F. The City and Developer desire by this Agreement to integrate construction
of the Utility Improvements and the Street Improvements in a manner that addresses both
Developer's interests in relation to development of the Subdivision and the City's interest
in facilitating development of the Subdivision in a manner consistent with the public
interest.
THE PARTIES, therefore, agree and covenant as follows:
1. Construction of Utility Improvements. Developer agrees to cause the
Utility Improvements to be constructed by Stevens, at Developer's cost, in accordance
with the final engineering plans and specifications as approved by the City Engineer (the
"Approved Plans"), which Approved Plans are incorporated herein.
2. Compliance with Law. The Developer shall comply with all applicable
laws, ordinances, regulations and requirements in completing its obligations under this
Agreement.
3. Project Schedule. Developer acknowledges that it has requested that the
City proceed on a schedule that will allow the City to award a contract and begin
construction of the Street Improvements as soon as reasonably possible following
completion of the Utility Improvements. Developer further acknowledges that the
Stevens Contract provides for completion of the Utility Improvements within 90 days
after the December 19, 2005 commencement of the "contract time" as defined in the
Stevens Contract. In the course of the City's performance of the inspection and testing
work described below, the City agrees that it shall certify when, in the judgment of the
Director of General Services, the Utility Improvements are fifty percent (50%)
completed, at which time the City will commence the public bidding process required to
contract for completion of the Street Improvements. Developer agrees to diligently
pursue full completion of the Utility Improvements in accordance with this Agreement
and acknowledges that the City's willingness to award a contract for the Street
Improvements prior to completion of the Utility Improvements is in full reliance upon
that commitment. Developer shall be liable to the City for any and all damages (direct or
consequential) or expenses incurred by the City resulting from Developer's failure to
diligently complete the Utility Improvements in accordance with this Agreement.
4. Inspection and Testing. The City shall inspect and/or test Stevens' work
in construction of the Utility Improvements at such intervals as the City deems
appropriate. The City shall inform both the Developer and Stevens in writing of any
deficiencies identified in the inspection or testing process. The Developer shall be
responsible for assuring that Stevens promptly corrects any deficiencies identified in the
course of the City's inspections and/or testing. The Developer shall be responsible for
prompt payment of the City's standard charges for inspection and testing services, which
will be based upon actual hours, applicable hourly rates, and an overhead factor of thirty-
five percent (35%).
5. Payment for Work. The Developer shall be responsible for payment of all
costs and expenses of constructing the Utility Improvements. Upon completion of
construction of the Utility Improvements, the Developer shall deliver to the City a written
list of all contractors, subcontractors, and sources of materials utilized in completing the
Utility Improvements along with a written statement from each verifying payment in full
for all labor or materials provided in construction of the Utility Improvements.
6. Acceptance. Acceptance of the Utility Improvements by the City shall be
pre-conditioned upon fulfillment of all of Developer's obligations outlined in paragraphs
1 through 5 above.
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7. Warranty. The Developer warrants that each and every component of the
Utility Improvements shall be free from defects for a period of one (1) year from the date
that the City accepts the Utility Improvements. The City shall provide timely notice to
the Developer whenever inspection reveals that any component of the Utility
Improvements is defective. The Developer shall have 30 days from the date the notice is
issued to cause Stevens to remedy the defect. The Developer shall have no right to cause
the defect to be remedied by Developer or any other party other than Stevens without the
prior written consent of the City.
8. Relationship of Parties. Neither the Developer nor Stevens is an employee
or agent of the City.
9. Insurance Requirements of Stevens. Prior to commencement of work by
Stevens in constructing the Utility Improvements and until such time as the Utility
Improvements are accepted by the City, the Developer must provide the City with
certificates of Stevens' insurance for the following required policies:
(a) Commercial General Liability Insurance. Public liability
insurance coverage in an amount no less than $500,000 covering the liability of
Stevens' and any and all consultants, agents, independent contractors which are
employed or retained by Stevens, on an occurrence basis.
(b) Automobile Liability. Automobile liability coverage protecting
Stevens against claims for bodily injury and/or property damage arising out of the
ownership or use of any owned, hired and/or non-owned vehicle. Required
minimum limits: $300,000 each accident, combined single limits, bodily injury
and property damage.
(c) Worker's Compensation. Full worker's compensation coverage as
required by Kansas law for all persons Stevens may employee directly, or through
subcontractors, in carrying out the work contemplated under this Agreement.
10. Indemnification and Hold Harmless. The Developer agrees to indemnify
and hold harmless the City, its officials, agents, and employees from and against all
claims, expenses, demands, judgments and causes of action for personal injury or death
or damage to property where, and to the extent that, such claims, expenses, demands,
judgment or causes or action arise from the intentional or negligent acts of the Developer
and/or Stevens.
11. Financial Security. To further assure Developer's ability to perform its
obligations under this Agreement, the Developer agrees to:
(a)
Require that Stevens secure and maintain a performance bond extending to
Stevens' performance of all obligations to Developer under the Stevens
Contract issued by a surety company approved by the City (the
"Performance Bond");
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(b)
Require that Stevens provide a written warranty of its work in constructing
and installing the Utility Improvements for a period of one year following
acceptance of the Utility Improvements by the City (the "Stevens
Warranty");
(c)
Amend the Stevens Contract to address the requirements ofthe
Performance Bond and the Stevens Warranty and provide the City with
copies of the signed amendment to the Stevens Contract and the
Performance Bond; and
(d)
Diligently pursue its remedies under the Performance Bond in the event of
Stevens' failure to perform under the Stevens Contract, as amended.
12. Default. Unless otherwise provided in this Agreement, any failure by the
Developer to perform any obligation under this Agreement upon ten (10) days written
notice of such failure to perform shall constitute an event of default. In the event of
default, the City may pursue any available remedy under applicable law.
13. Attorneys' Fees and Litigation Expenses. Should either party have to
resort to legal action to enforce the terms of this Agreement, the prevailing party shall be
entitle to costs, including reasonable attorneys' fees and expert witness fees, from the
opposing party.
14. Assignment. Developer shall not assign any rights under this Agreement
without the prior written consent of the City.
15. Kansas Law Applies. This Agreement and its validity, construction and
performance shall be governed by the laws of Kansas. This Agreement shall be interpreted
according to its fair meaning, and not in favor of or against any party.
16. Severability. The unenforceability, invalidity, or illegality of any provision
of this Contract shall not render the other provisions unenforceable, invalid, or illegal.
17. Time. Time is of the essence of this Agreement. No extension will be
granted unless in writing and signed by the parties. Should the end of a time period fall on a
legal holiday, that termination time shall extend to 5:00 p.m. of the next full business day.
18. Persons Bound-Copies. This Agreement shall extend to and bind the heirs,
executors, administrators, trustees, successors and assigns of the parties hereto, and may be
executed in any number of counterparts, each of which shall be deemed an original, or in
multiple originals, and all such counterparts or originals shall for all purposes constitute one
agreement.
19. Notices. All notices and demands shall be given in writing either by
personal delivery or by certified mail, postage prepaid, and return receipt requested. Notice
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shall be considered given when received on date appearing on the return receipt, but if the
receipt is not returned within five (5) days, then forty-eight (48) hours after deposit in the
mail. Notices shall be addressed as appears below for each party, provided that if any party
gives notice of a change of name or address, notices to the giver of that notice shall
thereafter be given as demanded in that notice.
CITY:
City Clerk
P.O. Box 736
Salina, KS 67402-0736
DEVELOPER:
Golden Eagle Estates, L TD
721 East Neal Ave.
Salina, KS 67401
20. Typewritten or Handwritten Provisions. Typewritten or handwritten
provisions inserted or attached shall supersede all conflicting printed provisions.
21. Merger Clause. These terms are intended by the parties as a complete,
conclusive and final expression of all the conditions of their Agreement. No other promises,
statements, warranties, agreements or understandings, oral or written, made before or at the
signing thereof, shall be binding unless in writing and signed by all parties and attached
hereto. Any amendment to this Contract, including an oral modification supported by new
consideration, must be reduced to writing and signed by both parties before it will be
effective.
Executed effective the day and year first stated above by the duly authorized
representatives ofthe parties.
CITY ßALINA. KANJ;p' ,
By: IdadjJkæ~
Deborah Divine, Mayor
A TTE~TiJ l... 11
By: ~
Lieu Ann Elsey, CM
By:
~TEST: ~
' .~ "
By: C. " /<' ~~ .
TIm ~n, ice President :p.
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