Department of Public Works and City Attorney’s Office
Reference: Fee Waiver for The Preserve Pond Repairs
To: Mayor Gregory Mills and Members of City Council
Through: Michael P. Martinez, City Manager
Prepared By: Alicia R. Calderón, City Attorney
Date Prepared: September 26, 2025
PURPOSE
To approve a Resolution waiving the fees for The Preserve HOA permits for the construction of the storm water improvements and ponds and repairs to the adjacent streets.
BACKGROUND
The Preserve at Brighton Homeowners’ Association (HOA), a nonprofit corporation, filed a lawsuit in July of 2018 against the developer, builder, owners, and engineers who were involved in the development of The Preserve. The stormwater retention and detention ponds had flooded the road (Chavez Street) for many years, resulting in Chavez Street being closed. The ponds were filled with water at all times and did not drain. The allegations in the Complaint were that the retention basins were negligently designed and constructed, the defendants owed a duty of care and built certain lots knowing the final phase of the storm water improvements had not been completed, and that the developer misrepresented that the common elements were free from defects, among other claims. Initially, the City was not a party.
As litigation continued, City staff were deposed, and the developer and builder filed claims against the City, making the City a party to the litigation in 2019. After discovery, motions, and an interlocutory appeal, the case was set for trial in early 2022 and again in early 2023. The parties finally reached a settlement after five years of litigation and hundreds of thousands of dollars in attorney fees. In the settlement agreement, the City agreed to make the necessary street repairs after the HOA made the improvements to the ponds and connected the ponds to the North Outfall.
As the HOA has been planning the project, they have requested a letter of intent to reflect more specifically costs the City will be covering, which include asphalt, curb, gutter, and sidewalk for Chavez and Telluride, construction of a box culvert underneath Telluride, and installation of a 36 inch pipe for drainage. The City’s participation in the project will not exceed $1,250,000, which is at least half the costs of the project. Since the City is a partner in the project, the HOA has asked for the fees to be waived. Due to the public interest in getting the roads open and the benefit of getting these storm water repairs completed to avoid future flooding, this request is being presented to City Council for consideration.
FINANCIAL IMPACT
The City has been aware of this settlement obligation and has the funds appropriated for its share of the project for the street repairs. Waiver of the plan review and permit fees is approximately $15,000 (estimated at this time).
OPTIONS FOR COUNCIL CONSIDERATION
The City Council may approve, deny, or modify the resolution waiving fees for The Preserve ponds and streets construction project.
ATTACHMENTS
Resolution