RES 2015-0878 - Subdivision agmt, Falling Waters Commercial . lV E 1
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Public Works Department
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"I'4rED FEBRVA* CITY CLERK Fax(402)444-5248
City of Omaha M A i-t, N E B R A S K A Robert G. Stubbe,P.E.
Jean Stothert,Mayor Public Works Director
Honorable President
and Members of the City Council,
The attached Resolution approves the Subdivision Agreement among Royce Falling Waters,LLC,a
Nebraska limited liability company,Falling Waters Commercial Owners Association,a Nebraska not
for profit corporation, and the City of Omaha. This Agreement covers the public improvement of
Falling Waters Commercial (Lots 1-11 and Outlots A-H), a subdivision located northwest of 192nd
and Harrison Streets.
The Agreement provides for Interceptor Sewer Fees in the amount of$146,332.53 and Watershed
Management Fees currently estimated in the amount of$107,477.11 to be paid as building permits
are issued.
The Agreement provides for Park Fees as follows: Trail&Boulevard Fee,to be assessed as building
permits are issued;and Community Parks Fee,approximately half of which,$21,134.10,is to be paid
by the developer at the time of final platting, and the remaining half to be paid as building permits
are issued.
Honorable President
and Members of the City Council
Page 2
The Public Works Department requests your consideration and approval of the attached Subdivision
Agreement.
Respectfully submitted, This action has been reviewed and found to be
in c nformance with thee Master Plan.
C.)
Robert G. Stubbe, P.E. Date ames R. Thele Date
Public Works Director Planning Director
Approved as to Funding: Referred to City Council for Consideration:
4 -scc. Curtiss Ø3j/�
te Mayor's Office Date
Finance Director
Approved:
1.1
Brook Bench, Director Date
Parks, Recreation and
P:\rah\1287rah.doc Public Property Department
C-25A
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS,Royce Falling Waters,LLC,a Nebraska limited liability company,proposes to
build a subdivision to be known as Falling Waters Commercial(Lots 1-11 and Outlots A-H),which will be
located northwest of 192nd and Harrison Streets; and,
WHEREAS,Royce Falling Waters,LLC,a Nebraska limited liability company,will build
public and private improvements in this subdivision; and,
WHEREAS Royce Falling Waters, LLC, a Nebraska limited liability company,wishes to
construct a sanitary sewer system and connect said system to the Sanitary Sewer System of the City of
Omaha; and,
WHEREAS, Royce Falling Waters, LLC, a Nebraska limited liability company, agrees to
pay Interceptor Sewer fees of$146,332.53, and Watershed Management fees currently estimated in the
amount of$107,477.11, to be paid with the building permit; and,
WHEREAS, Royce Falling Waters, LLC, a Nebraska limited liability company, agrees to
provide for Park Fees as follows: Trail&Boulevard Fee,to be assessed as building permits are issued;and
Community Parks Fee,approximately half of which, $21,134.10,is to be paid at the time of final platting,
and the remaining half to be paid as building permits are issued; and,
WHEREAS, a Subdivision Agreement has been prepared setting forth all the provisions
mentioned above.
By
Councilmember
Adopted
City Clerk
Approved
Mayor
C-25A
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha, Nebraska
s ,
PAGE -2-
�.
rya
NOW,THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL,OF THE CIS'=Y OF
OMAHA:
THAT,the Subdivision Agreement among the City of Omaha,Royce Falling Waters,LLC,
a Nebraska limited liability company,and Falling Waters Commercial Owners Association,a Nebraska not
for profit corporation, as recommended by the Mayor, providing for the Watershed Management fees,
Interceptor Sewer fees, Parks fees, and sewer connection to the Omaha Sanitary Sewer System, is hereby
approved. The Subdivision is to be known as Falling Waters Commercial(Lots 1-11 and Outlots A-H)and
is located northwest of 192nd and Harrison Streets.
P:\rah\1288rah.doc APPROVED AS TO FORM:
QCITY ATTORNEY DATE
By 4LJL7
614414,"
Councilmember
Adopted JUL 2 8 2015 G -
•
City Clerk
�Approved. -k-���AL, ,- '7-c.30
Mayor
SUBDIVISION AGREEMENT
FALLING WATERS COMMERCIAL(Lots 1 — 11 and Outlots A-H)
THIS SUBDIVISION AGREEMENT is made and entered into this 7 day of , 2015 (this
"Agreement"), among ROYCE FALLING WATERS, LLC, a Nebraska limited liabil' company, (hereinafter
referred to as "Subdivider"),FALLING WATERS COMMERCIAL OWNERS ASSOCI TION, a Nebraska not for
profit corporation(hereinafter referred to as"Association"), and the CITY OF OMAHA,a Municipal Corporation in
the State of Nebraska(hereinafter referred to as"City").
WITNESSETH
WHEREAS, Subdivider is the owner of the land included within the proposed plat attached hereto as Exhibit "A"
(hereinafter referred to as the"Area to be Developed");and,
WHEREAS,the Subdivider proposes to build public improvements in the area to be developed;and,
WHEREAS, the Subdivider wishes to connect the system of sanitary sewers to be constructed within the area to be
developed to the sewer system of the City;and,
WHEREAS, the Subdivider has or will create the Falling Waters Commercial Owners Association comprised of the
property owners of Lots 1 - 11 and Outlots A-H,Falling Waters Commercial;and,
WHEREAS, the parties wish to agree on the method for the installation and allocation of expenses for public
improvements to be constructed in the property.
NOW,THEREFORE,IT IS AGREED AS FOLLOWS:
For the purpose of this Agreement,the following words and phrases shall have the following meanings:
The "cost" or "entire cost" of a type of improvement shall be deemed to include all construction costs, engineering
fees,attorneys'fees,testing expenses,publication costs,financing costs and miscellaneous costs.
SECTION I
Subdivider covenants that Subdivider shall, contemporaneously with the filing of the final plat, present to the City
Clerk for the benefit of the City binding contracts in full force and effect calling for the timely and orderly
installation of the following public improvements, according to the terms of those contracts for the installation of the
improvements set forth herein:
A. Concrete paving of Polk Street, 193`d Avenue, 194d'Street and Monroe Street,to be twenty-five(25)feet in
width, and constructed as shown on paving plans prepared by E & A Consulting Group, Inc. copies of
which are attached hereto as Exhibit"B".
B. All sanitary sewer mains, manholes and related appurtenances constructed in dedicated street rights-of-way
and easements,per plat(Exhibit"A"), to be located as shown on sanitary sewer layouts prepared by E&A
Consulting Group,Inc. copies of which are attached hereto as Exhibit"B".
C. Storm sewers,inlets,manholes and related appurtenances constructed in streets right-of-way and easements,
per plat(Exhibit"A"),plans and specifications for said sewer improvements to be approved by City prior to
starting construction of said improvements to be located as shown on storm sewer plans to be prepared by E
&A Consulting Group,Inc.copies of which are attached hereto as Exhibit`B".
D. Water and gas distribution mains located within dedicated street rights-of-way dedicated per plat (Exhibit
"A")to be installed by the Metropolitan Utilities District. A contract with MUD will be provided as soon
as available,but in no event longer than four months from the date of execution of this Agreement.
1
E. Street lighting for public streets dedicated per plat(Exhibit"A")to be installed by the Omaha Public Power
District. A contract with OPPD will be provided as soon as available, but in no event longer than four
months from the date of execution of this Agreement.
F. Underground electrical service to each of the lots in the area to be developed to be installed by the Omaha
Public Power District. A contract with OPPD will be provided as soon as available,but in no event longer
than four months from the date of execution of this Agreement.
G. Sidewalks and street trees along both sides of all public streets within the area to be developed shall be
constructed by the Subdivider in conformance with Section 53-9 (9)according to the following schedule:
1. Sidewalks and street trees shall be constructed immediately abutting vacant lots as soon as the lots
comprising sixty-five percent(65%)of the abutting footage on such side have been built upon.
2. Sidewalks and street trees shall be constructed immediately abutting built-upon lots as soon as
weather permits.
3. In any event,all sidewalks and street trees shall be constructed upon any public streets adjacent to
the plat within three(3)years of the recording of the subdivision plat.
4. Curb ramps shall be constructed per City standards at all public stree intersections. Construction
of these ramps shall be included in the street paving project,but shall not take place until after all
conflicting utilities have been installed.
5. Sidewalks shall be installed along 192"d Street.
H. A deceleration lane on 192"d Street at Monroe Street shall be constructed as shown on Exhibit B. An
approved permit or other considerations acceptable to the Douglas County Engineers office shall be
provided to the City prior to the recording of the plat.
The Subdivider agrees to grade the subdivision so that the elevation at the property line adjacent to
Harrison Street and 192"d Street shall meet the proposed grade established by the Douglas County engineer
for a five-lane section road. Sections shall be submitted to the Douglas County engineer and elevations
certified by E&A Consulting Group,Inc.prior to commencement of construction of improvements.
J. Post-construction stormwater management features and related appurtenances constructed in right-of-way
and outlots, per plat (Exhibit "A"). The plans and specifications for said stormwater management
improvements shall be submitted to and must be accepted by City prior to starting construction of said
improvements. Said improvements shall be located as shown on the post-construction stormwater
management plans to be prepared by E&A Consulting Group, Inc., copies of which are attached hereto as
Exhibit"C". The City has assigned a project number of OPW#52662 to these plans.
K. Post-construction stormwater maintenance agreement shall be submitted to and reviewed by City prior to
starting construction of said improvements, the form of which is attached hereto as Exhibit "E". The
maintenance agreement shall delineate the responsibilities of the Association and shall be subject to
approval by the City. The maintenance agreement must include language to control when post-construction
stormwater features are constructed, and differentiate between the requirements of construction site
stormwater runoff controls and post-construction controls. The post-construction stormwater features shall
not be installed until such time as they will not be negatively impacted by construction site runoff.
Maintenance actions identified as private, to be performed by the Association, property owner, or other
private entity shall run with the land and become the responsibility of any successors, assigns or future
owners,as appropriate.
SECTION II
The parties agree that the entire cost of all public improvements set out in Section I herein shall be paid for privately
as follows:
2
A. One hundred percent (100%) of the entire cost of all street, sidewalk and street tree construction shall be
paid for privately by the Subdivider,as indicated in Exhibit"B".
B. One hundred percent (100%) of the entire cost of all sanitary sewers, including manholes and other
appurtenances,shall be paid for privately by the Subdivider.
C. One hundred percent(100%)of the entire cost of water distribution system serving the area to be developed
shall be paid for privately by the Subdivider.
D. One hundred percent(100%)of the entire cost of monthly contract charges paid to the Omaha Public Power
District for furnishing lighting of public streets shall be paid for by the Subdivider or the Association until
annexation of the area to be developed at which time the cost shall be paid by the City.
E. The entire cost of the installation of electrical power service and gas distribution system shall be paid for
privately by the Subdivider.
F. The Sediment and Erosion Control Plan to be submitted the City of Omaha for compliance with NPDES
regulations is attached hereto and incorporated herein as Exhibit "D". The City of Omaha must approve
said plan prior to City Engineer's second signature on the final plat. The initial construction cost of grading
and piping for temporary sediment and erosion control facilities shall be paid for privately by the
Subdivider. Removal of said sediment and erosion control measures shall be the responsibility of the
Subdivider. All silt basins are to remain in place until seventy-five percent(75%)of the drainage sub-basin
serviced by these erosion control measures are fully developed, and with the written permission of the City
Public Works Department authorizing their removal. Sediment removal shall be paid for privately by the
Subdivider.
G. Park fees shall be paid as follows:
1. Trails / Boulevard Fee. There will be no platting fees for trails and boulevards. A Trail and
Boulevard Fee will be assessed at the time of building permit.
2. Community Parks. Approximately fifty percent (50%) of the Community Park (CP) Fee will be
paid by the Subdivider at the time of final platting. This portion of the CP Fee is calculated on a
per-acre basis as follows:
Lots 1-2 and Outlots A,B,E and G,Residential,
18.298 Acres @$450.00 per acre $8,234.10
Lots 1 - 11,and Outlots C,D,F and H Commercial or Industrial,
16.125 Acres @$800.00 per acre $12,900
TOTAL: $21,134.10
The remaining portion of the CP Fee will be assessed by the City and collected from the building
permit applicants at the time of building permits on a per-lot basis.
H. One hundred percent (100%) of the entire cost of all post-construction stormwater management features,
and related appurtenances,shall be paid for privately by the Subdivider,provided,
1. The Subdivider or the Association shall own and maintain these properties in accordance with the
maintenance agreement contained herein. All necessary easements to the City and the Subdivider
shall be granted at the time of platting. Post-construction stormwater management maintenance
identified as the responsibility of the Association shall be performed and funded by the
Association.
3
2. Routine mowing, landscaping, screening or other amenities that do not contribute to water quality
shall be paid for by the Association and maintained by the Association.
SECTION III
A. Subdivider covenants and agrees that the Subdivider will abide by and incorporate into all of its
construction contracts the provisions required by the regulations of the City pertaining to construction of
public improvements in subdivisions and testing procedures therefore.
B. All parties covenant and agree that nothing in this Agreement shall be construed so as to oblige the City to
annex the area to be developed or any part thereof.
C. The Subdivider shall not sue nor fund any lawsuit to prevent any annexation of the property within the
subdivision by the City.
D. Post-construction stormwater management maintenance identified as the responsibility of the Association
shall continue to be performed and funded by the Association after annexation by the City.
SECTION IV
In the performance of this Agreement, the Subdivider shall not discriminate against any parties on account of race,
national origin,sex,age,political or religious affiliations in violation of federal or state laws or local ordinances.
SECTION V
A. Subject to the conditions and provisions hereinafter specified, the City hereby grants permission to the
Subdivider to connect its sewer system to the sewer system of the City,in such manner and at such place or
places designated on plans submitted by the Subdivider and approved by the City.
B. Upon the completion of any sanitary outfall sewer, if any,built by the Subdivider, the City shall be granted
and they shall accept control and operation of the facility. The Subdivider shall convey by proper legal
instrument all its rights, easements, title, and interest in such Sanitary Outfall Sewer to the City. The form
of acquisition shall be upon approved City forms.
C. Without prior written approval by the City, the Subdivider shall not permit any sewer lines outside the
presently described boundaries to be connected to: The sewer or sewer lines of the subdivision, any sewer
from the subdivision's boundaries to the sewers of the City, any outfall sewer of the City, or any sewage
treatment plant of the City. The City shall have exclusive control over connections to its sewers whether
inside or outside the subdivision. The Subdivider shall not collect charges for such connections.
D. At all times, all sewage from and through said subdivision into the City sewer system shall be in conformity
with the ordinances, regulations, and conditions applicable to sewers and sewage within the City as now
existing and as from time to time may be amended.
E. Before any connection from any premises to the sewer system of the subdivision may be made, a permit
shall be obtained for said premises and its connection from the proper department of the City,which permit
shall be obtainable on the same terms,conditions, and requirements of the City and for the same permit fee
of the City applicable from time to time to permit property outside the City to connect to the sewer system
of the City; it being expressly understood that the City reserves the right to collect all connection charges
and fees as required by City ordinances or rules now or hereafter in force;all such connections shall comply
with minimum standards prescribed by the City.
F. Notwithstanding any other provisions of this Agreement, City retains the right to disconnect the sewer of
any industry, or other sewer user within the area to be developed, which is discharging into the sewer
system in violation of any applicable ordinance,statute,rule or regulation.
4
G. The Subdivider warrants that it has not employed or retained any company or person,other than a bona fide
employee working for the Subdivider,to solicit or secure this Agreement,and that it has not paid or agreed
to pay any company or person, other than a bona fide employee working for the Subdivider, any fee,
commission,percentage,brokerage fee, gifts, or any other consideration, contingent upon or resulting from
the award or making of this Agreement. For breach or violation of this warranty, the City shall have the
right to annul this Agreement without liability. The Subdivider shall require the same warranty from each
contractor with whom it contracts in any way pertaining to its sewage system. The prohibition provided for
herein shall not apply to the retention of an attorney or other agent for the purpose of negotiating the
provisions of this Agreement where the existence of such agency has been disclosed to the City.
H. The Subdivider expressly agrees that they are and shall be:
1. Bound by and to any provisions of any ordinances, rules and regulations hereafter made and
adopted by the City of Omaha applicable to subdivisions whose sewers connect directly or
indirectly with or into sewers or sewage systems of the City of Omaha;and,
2. Bound by any terms and provisions which by ordinance, resolution or rule of the City of Omaha
shall hereafter adopt or provide as being applicable to or required in contracts with subdivisions or
in order to permit or continue the discharge of any sewage from a subdivision to flow into or
through any part of the sewer or sewage system of the City of Omaha.
SECTION VI
A. The owner of each lot shall make payment to the City of Omaha for the construction of interceptor sewers.
This fee is computed as follows for the lots shown on the plats(Exhibit"A"). Payment shall be made to the
City Permits and Inspections Division prior to receiving a building permit to construct improvements on any
lot. Payment shall be based on the current fee adopted by the Omaha City Council and is currently as
follows:
Lots 1 - 11,MU,
24.499 Acres @$5,973.00 $146,332.53
TOTAL $146,332.53
B. In the event the Subdivider shall plat additional lots which will be in the subdivision which it wishes to
connect to the Omaha sewer system,this Agreement shall be amended by the parties to provide payment of
the current fee for the additional lots before any sewer permits are issued by the City.
C. The Subdivider and the City agree that payment made under Section VI-A of this Agreement shall
constitute a Special Sewer Connection Fee for the area described in Section VI-A and shall be collected by
the City as a Special Sewer Connection Fee as follows:
1. The real estate shall be charged the special sewer fee amount as set forth in Section VI-A for each
lot or parcel.
2. The Special Sewer Connection fee shall be collected by the City from the owner of each lot or
parcel of real estate in the amount as shown in Section VI-A prior to the time any such lot or parcel
is built upon and before the building sewer is connected to the sanitary system of the subdivision.
3. In the event of annexation by the City, the Special Sewer Connection Fee shall continue to remain
as a charge against each lot which has not previously paid said Special Sewer Connection Fee.
The Special Sewer Connection Fee shall be collected and retained by the City from each such lot
owner before the building sewer is connected to the sanitary system.
5
D. The City may collect, within the area to be developed, the City's sewer connection and permit fees, as
provided by existing City ordinances and its sewer use and connection fees as now or hereafter existing.
Such fees shall be in addition to the payments provided for in Section VI-A herein.
E. No sewer permit will be issued by the City for any construction on any lot in the area described in Section
VI-A until payment to the City of the Special Sewer Connection Fee for that particular lot as called for in
Section VI-A.
F. The owner of each lot shall make payment to the City of Omaha for Watershed Management Fees. This fee
is computed as follows for the lots shown on the plats (Exhibit "A"). Payment shall be made to the City
Permits and Inspections Division prior to receiving a building permit to construct improvements on any lot.
Payment shall be based on the then current fee on the date of the building permit application,as adopted by
the Omaha City Council, for example FY 2014,the fee would be as follows:
Lots 1 - 11, MU,
24.499 Acres @$4,387.00 $107,477.11
TOTAL: $107,477.11
G. In the event the Subdivider shall plat additional lots which will be in the subdivision, this Agreement shall
be amended by the parties to provide payment of the current fee for the additional lots before any building
permits are issued by the City.
H. The Subdivider and the City agree that payment made under Section VI-F of this Agreement shall constitute
a Watershed Management Fee for the area described in Section VI-F and shall be collected by the City as a
Watershed Management Fee as follows:
1. The real estate shall be charged the Watershed Management Fee amount as set forth in Section VI-
F for each lot or parcel.
2. The Watershed Management Fee shall be collected by the City from the owner of each lot or
parcel of real estate in the amount as shown in Section VI-F prior to the time any such lot or parcel
is built upon.
3. In the event of annexation by the City,the Watershed Management Fee shall continue to remain as
a charge against each lot which has not previously paid said Watershed Management Fee. The
Watershed Management Fee shall be collected and retained by the City from each such lot owner
before the before the building permit is issued.
SECTION VII
A. Installation of entrance signs or related fixtures and any median landscaping and related fixtures shall be
paid for by the Subdivider. Plans for such proposed improvements that are to be located in public right-of-
way and a proposed maintenance agreement for the improvements must be submitted to the City for review
and approval prior to the installation of improvements.
B. Outlots A through H shall be used for the non-commercial purposes for which they are intended and will be
owned and maintained by the Association. Outlot A and C are intended to be utilized primarily for storm
water drainage, sewer easement area and green space, Outlots B and D are intended to be utilized primarily
for storm water drainage and management, Outlots E, F and G are intended to be utilized primarily for
trails, sidewalks, green and plaza area improvements, and Outlot H is intended to be used primarily as a
green corner and green space.
C. There are no trees located on the site and therefore a tree mitigation plan is not required for the project.
6
D. No separate administrative entity nor joint venture,among the parties, is deemed created by virtue of the
Subdivision Agreement.
E. The administration of this Subdivision Agreement shall be through the offices of the undersigned officers
for their respective entities.
F. This Subdivision Agreement shall be binding upon the parties,their respective successors and assigns and
runs with the land shown on Exhibit"A"".
[Space Below Intentionally Left Blank—
Signature Page to Followl
7
IN WITNESS WHEREOF,we the executing parties,by our respective duly authorized agents,hereby enter into this
Agreement,effective on the day and year first above written.
FALLING WATERS COMMERCIAL OWNERS
ASSOCIATION
By: `,..,_ �- c
Lawren a R.James,II,Preside t
Date: 4%1 1\ L�
ROYCE FALLING WATERS LLC
By: .Z s
Lawrence R.James,II,Manag
Date: Gkotkor
ATTEST: CITY OF OMAHA
Y Cif ,ditl 44a/ ice- �".5
it CITY CLERK Date MAYOR Date
APPROVED AS TO FORM
?1
",
I
ASSISTANT CITY ATTORNEY Date
8
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
On this I day of\ J Li,1'--L) , 2015,before me,a Notary Public in and for said County and State,personally
appeare Lawrence R.James,II,Manager of Royce FallingWaters,LLC,g y a Nebraska limited liability company,who
executed the above and acknowledged the execution thereof to be their voluntary act and deed on behalf of the
Company.�
L>titt4�, 0 f GENERAL NOTARY-State of Nebraska
� V EMILY 0 CON
NOR
TARY PUBLI `t, My Comm.Exp.August 4,2018
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
On this I 1 day of jit l , 2015,before me, a Notary Public in and for said County and State,personally
appeared Lawrence R. James, II, President of the Falling Waters Commercial Owners Association, a Nebraska not-
for-profit corporation,who executed the above and acknowledged the execution thereof to be their voluntary act and
deed on behalf of the Corporation.
1 U con- � GENERAL NOTARY-State of Nebraska
cijkit
Y,r�1 �� �� EMILY O'CONNOR
NOTARY PUBLI -. Il My Comm.Exp.August 4,2018
9
SUBDIVISION AGREEMENT EXHIBIT
EXHIBIT A FINAL PLAT
EXHIBIT B PAVING
EXHIBIT C GRADING AND UTLITIES
EXHIBIT D PCSMP
EXHIBIT E POST-CONSTRUCTION STORMWATER MANAGEMENT MAINTENANCE PLAN
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EXHIBIT E
Upon Recording Return to:
James D. Buser
Pansing Hogan Ernst&Bachman,LLP
10250 Regency Circle, Suite 300
Omaha,Nebraska 68114
[Space above the line for recording data]
POST CONSTRUCTION STORM WATER MANAGEMENT PLAN
MAINTENANCE AGREEMENT
This Post Construction Storm Water Management Plan Maintenance Agreement (hereinafter referred to as
the"Agreement") is entered in to as of the date set forth below by and between ROYCE FALLING WATERS,LLC,
a Nebraska limited liability company (hereinafter) referred to as the "Property Owner"), FALLING WATERS
COMMERCIAL OWNERS ASSOCIATION, a Nebraska not for profit corporation(the"Association")and the City
of Omaha, Nebraska (hereinafter referred to as the "City"). The Property Owner, Association and the City are
sometimes referred to herein as the"Parties".
WHEREAS, the Property Owner(whether one of more) is the owner of the real property legally described
on Exhibit "A" which is attached hereto and incorporated herein by this reference (hereinafter referred to as "the
Property");
WHEREAS, the Association is the owners association for the Property under a Declaration of Covenants
recorded against the Property and is charged with certain outlot maintenance responsibilities under said Declaration
of Covenants;
WHEREAS,the Parties recognize that the health, safety and welfare of the citizens of the City require that
storm water management facilities(hereinafter referred to as the"Facilities")must be constructed and maintained in
conjunction with the development of the Property,which Property is located in the jurisdiction of the City;
WHEREAS,reference is made to the Post Construction Storm Water Management Plan, for Falling Waters
Commercial at 192nd and Harrison Streets designated as Public Works Department project number OPW#52662,
hereinafter referred to as the"PCSMP")which has been prepared on behalf of the Property Owner and approved by
the City,and which is attached hereto as Exhibit"B"and incorporated herein by this reference;and,
WHEREAS, the Property Owner agrees that its obligations hereunder shall be binding on present and
future owners of the Property, including administrators, executors, successors, heirs, or assigns as the case may
be.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt of which is hereby
acknowledged by the Parties, the foregoing premises and the terms and provisions contained herein, the Property
Owner agrees as follows:
1. The Facilities described in the PCSMP shall be constructed by the Property Owner in accordance
with the PCSMP,which has been prepared by the Property Owner and which has been reviewed and accepted by the
City or its designee. The Property Owner hereby reserves the right to continue to use the land on which the PCSMP
is constructed for any uses or purposes which do not materially interfere with the use or operation of the Facilities or
the BMP Maintenance Requirements(defined below).
2. The Property Owner has prepared,and the City has reviewed and accepted the"BMP Maintenance
Requirements" which are attached hereto as Exhibit"C" and which are incorporated herein by this reference. Such
BMP Maintenance Requirements shall describe the specific maintenance practices to be performed for the Facilities
and include a schedule for implementation of these practices. A written record of inspection results and any
maintenance work shall be maintained and available for review by the City.
3. The Property Owner until transfer of legal title to the outlots to the Association, and thereafter the
Association, shall, at its sole expense, construct and perpetually operate and maintain the Facilities in strict
accordance with the BMP Maintenance Requirements.
4. The Property Owner and Association hereby grant permission to the City,its authorized agents and
employees, upon reasonable notice and at reasonable times,to enter upon the Property, for inspections to ensure that
the Facilities are maintained in accordance with this Agreement;provided,however,any such access by the City onto
the Property shall be limited to paved areas and any pervious areas around the Facilities to the extent reasonably
necessary to inspect the Facilities.
5. In the event an inspection reveals that the Facilities have not been maintained in accordance with
this Agreement and corrective action is needed, the City shall provide the Property Owner or Association, as
applicable, with written notice specifying what corrective action is reasonably required. If the Property Owner or
Association, as applicable,has not completed the corrective actions within thirty(30)days of receipt of such notice,
the City may perform the necessary corrective work. In the event of an emergency as determined by the City or its
designee in its sole discretion, the City or its designee is authorized to enter the Property to make all repairs, and to
perform all maintenance, construction and reconstruction as the City reasonably deems necessary. The City shall be
entitled to recover from the Property Owner, or Association, as applicable, the reasonable costs the City reasonably
expends to maintain or repair the Facilities or to correct operational deficiencies in accordance with this Agreement or
applicable law. Failure to pay the City all of its reasonably expended costs, after forty-five days written notice, shall
constitute a breach of this Agreement. The City shall thereafter be entitled to bring an action against the Property
Owner or Association,as applicable,to recover such costs,-including interest and attorney fees.
6. Neither the Property Owner or Association shall obligate the City to maintain or repair the
Facilities,and the City shall not be liable to any person for the condition or operation of the Facilities.
7. The Property Owner or Association, as applicable, hereby indemnifies and holds harmless the City
and its authorized agents and employees for any and all damages, accidents, casualties, occurrences or claims that
may arise or be asserted against the City from the construction, presence, existence or maintenance of the Facilities
by the Property Owner or Association, as applicable, unless such damages, accidents, casualties, occurrences or
claims are caused by the negligence, gross negligence or willful misconduct of the City or its authorized agents or
employees. In the event such a claim is asserted against the City, its authorized agents or employees, the City shall
promptly notify the Property Owner or Association, as applicable, and the Property Owner or Association, as
applicable, shall have the right to defend and settle, at its own expense, any suit based on such claim. If a final
judgment is entered against the City for such a claim, the Property Owner or Association, as applicable, shall pay
such judgment unless such judgment is based on the negligence, gross negligence or willful misconduct of the City
or its agents or employees.
8. Neither the Property Owner or Association shall in any way diminish, limit or restrict the right of
the City to enforce any of its ordinances as authorized by law.
9. The Property Owner and Association, as applicable, shall comply with the time periods set forth in
this Agreement; provided, however, that said periods shall be extended for a period or periods of time equal to any
period or periods of delay caused by strikes, lockouts, fire or other casualty, the elements or acts of God, refusal or
failure of governmental authorities to grant necessary permits and approvals for the construction of the Facilities
contemplated hereunder(the Parties agreeing to use reasonable diligence to procure the same), or other causes,other
than financial beyond their reasonable control.
10. The provisions of this Agreement are not intended to create, nor shall they be in any way
interpreted or construed to create,a joint venture,partnership,or any other similar relationship between the Parties.
11. This Agreement is not intended to create, nor shall it be in any way interpreted or construed to
create,any third party beneficiary rights in any person not a party hereto.
12. This Agreement contains the entire agreement between the Parties hereto and supersedes all prior
agreements, oral or written, with respect to the subject matter hereof. The provisions of this Agreement may be
modified by only written agreement of the City,the Property Owner and Association.
13. This Agreement may be modified by written agreement of the Parties hereto.
14. Upon conveyance of the Property, the conveying owner shall thereafter be relieved of any
obligations under this Agreement arising out of any act, occurrence or omission that occurs after the date of such
conveyance.
15. This Agreement shall be recorded with the Register of Deeds of Douglas County, Nebraska and
shall constitute a covenant miming with the land and shall be binding on, and inure to the benefit of the Property
Owner and Association, its successors and assigns.
[Space Below Intentionally Left Blank—
Signature Page to Follow]
IN WITNESS WHEREOF,the Property Owner has executed this Agreement this day of ,2015.
FALLING WATERS COMMERCIAL OWNERS
ASSOCIATION
CBy: .2. t
Lawrence R.James,II,Preside t
Date: 141011r
ROYCE FALLING WATERS,LLC
By: L...,.2.
Lawrence R.James,II,Manage
Date: 1410 1 1r
ATTEST: CITY OF OMAHA
CITY CLERK Date MAYOR Date
APPROVED AS TO FORM
ASSISTANT CITY ATTORNEY Date
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
On this day of ll ,2015,before me,a Notary Public in and for said County and State,personally
appeare Lawrence . es,II,Manager of Royce Falling Waters,LLC,a Nebraska limited liability company,who
executed the above and acknowledged the execution thereof to be their voluntary act and deed on behalf of the
C L (
o any.
GENERAL NOTARY-State of Nebraska
r I l�v V !;�, EMILY O'CONNOR
OTARY PUBL —.IL- My Comm.Exp.August 4,2018
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
On this n day of ,2015,before me, a Notary Public in and for said County and State,personally
appeared Lawrence R. J es, II, President of the Falling Waters Commercial Owners Association, a Nebraska not-
for-profit corporation,who executed the above and acknowledged the execution thereof to be their voluntary act and
deed on behalf of the Corporation.
(L jEt
NARY PUBLIC
fGENERAL NOTARY-State of Nebraska
EMILY eS4Ait's My Comm.Exp.August 4,2018
EXHIBIT A
Legal Description of Property
Lots 1 through 11,inclusive and Outlots A through H,inclusive,Falling Waters Commercial,a subdivision as
surveyed,platted and recorded in Douglas County,Nebraska.
cu
NO. . 7a.
Resolution By
Res. that, the Subdivision Agreement among
the City of Omaha, Royce Falling Waters, -,113
LLC, a Nebraska limited liability company,
and Falling Waters Commercial Owners
Association, a Nebraska not for profit
corporation, as recommended by the Mayor,
providing for the Watershed Management
fees, Interceptor Sewer fees, Parks fees, and
sewer connection to the Omaha Sanitary
Sewer System, is hereby approved. The
Subdivision is to be known as Falling Waters
Commercial (Lots 1-11 and Outlots A-H)and
is located northwest of 192nd and Harrison
Streets.
P:\rah\1288rah.doc
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Presented to City Council
JUL 1 4 20t5
aza,e6/76 7/6-"Ablzto/2
JUL 2 8 2015- Adopted -d
4,G 4ff/l
City Clerk