HomeMy WebLinkAboutNEENAN OFFICE BUILDING SECOND MINOR SUB - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-26DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this_-�--day of
199�, by and between the CITY OF FORT COLLINS, COLO O, a
Municipal Corporation, hereinafter referred to as the "City"; THE
NEENAN COMPANY, a Colorado corporation, hereinafter referred to as
the "Developer"; and JMC REAL ESTATE COMPANY, LLLP, a Colorado
limited liability limited partnership, hereinafter referred to as
the "Owner".
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the
Owner to purchase and develop certain real property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the
"Property" or "Lot 111) and legally described as follows, to wit:
NEENAN OFFICE BUILDING II, MINOR SUBDIVISION, LOT 1, situate
in the Southeast 1/4 of Section 17, Township 7 North, Range 68
West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
City's Director of Engineering and made a part hereof by reference;
and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
building end of said accessway. The turnaround is not required if
an exit point is provided at the end of the accessway.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at all construction sites within the public right-of-way
and/or other areas as deemed necessary by the Director of
Engineering in accordance with the City's "Work Area Traffic
Control Handbook" and shall not remove said safety devices until
the construction has been completed and approved by the Director of
Engineering.
B. The Developer shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish caused
by the Developer's operation; shall remove such rubbish no less
than weekly and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment,
machinery, and surplus materials from the public right-of-way. The
Developer further agrees to maintain the finished street surfaces
so that they are free from dirt caused by the Developer's
operation. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until
the problem is corrected to the satisfaction of the Director of
Engineering. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the
City may have the streets cleaned at the Developer's expense and
the Developer shall be responsible for prompt payment of all such
costs.
C. The Developer hereby agrees that it will require its
subcontractors to cooperate with the City's construction inspectors
by ceasing operations when winds are of sufficient velocity to
create blowing dust which, in the inspector's opinion, is hazardous
to the public health and welfare.
D. The Developer shall, pursuant to the terms of this
Agreement, complete all improvements and perform all other
obligations required herein, as such improvements or obligations
may be shown on the original plat and related documents, or any
replat as subsequently filed by the Developer, and the City may
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withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
E. Nothing herein contained shall be construed as a waiver of
any requirements of the City Code, and the Developer agrees to
comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement,
no such waiver shall be held or construed to be a waiver of any
subsequent breach hereof.
G. Financial obligations of the City of Fort Collins payable
after the current fiscal year and/or not appropriated or budgeted
are contingent upon funds for that purpose being appropriated,
budgeted and otherwise made available by the Fort Collins City
Council.
H. This Agreement shall run with the Property and shall be
binding upon and inure to the benefit of the parties hereto, their
personal representatives, heirs, successors, grantees and assigns.
It is agreed that all improvements required pursuant to this
Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest
within the meaning of this paragraph shall specifically include,
but not be limited to, a conveyance or assignment of any portion of
the Developer's legal or equitable interest in the Property, as
well as any assignment of the Developer's rights to develop the
Property under the terms and conditions of this Agreement.
I. In the event the Developer transfers title to the Property
and is thereby divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to
be a material element hereof. In the event that either party shall
fail to perform according to the terms of this Agreement, such
party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be
given written notice specifying such default and shall be allowed
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a period of five (5) days within which to cure said default. In
the event the: default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages;
(b) treat the Agreement as continuing and require specific
performance or; (c) avail itself of any other remedy at law or
equity.
K. In the event of the default of any of the provisions
hereof by either party which shall require the party not in default
to commence legal or equitable action against said defaulting
party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and
costs incurred by reason of the default. Nothing herein shall be
construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D of this Agreement.
L. This Agreement shall not be construed as or deemed to be
an agreement for the benefit of any third party or parties, and no
third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. The Owner is made a party to this Agreement solely for the
purpose of subjecting the Property to the covenants contained in
this Agreement. The City and the Developer expressly acknowledge
and agree that. the Owner shall not be liable for any obligations of
the Developer under this Agreement, unless the Owner were to
exercise any of the rights of the Developer in which event the
obligations of the Developer shall become those of the Owner.
N. It is expressly understood and agreed by and between the
parties hereto that this Agreement shall be governed by and its
terms construed under the laws of the State of Colorado and the
City of Fort Collins, Colorado.
O. Any notice or other communication given by any party
hereto to any other party relating to this Agreement shall be hand -
delivered or sent by registered or certified mail, return receipt
requested, addressed to such other party at their respective
addresses as set forth below; and such notice or other
communication shall be deemed given when so hand -delivered or three
(3) days after so mailed:
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If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
If to the Developer: The Neenan Company
P.O. Box 2127
Fort CollinsCO 80522
Attn• Mr. Mark Casey
With a copy to: Moore Smith & Williams. P.C.
425 W. Mulberry St Suite 12
Fart Collins CO 80521
Attn• Mr. Dave Williams Esq
If to the Owner: JMC Real Estate Company LLLP
2500 E Prospect Road
Fort Collins CO 80525
Attn• Mr. Scott M. Thomas
With a copy to: Dwyer Huddleson & Ray
First National Tower Tenth Floor
215 West Oak Street
Fort Collins CO 80521
Attn: Mr. Charles R. Huddleson Esq_
Notwithstanding the foregoing, if any party to this Agreement, or
its successors, grantees or assigns, wishes to change the person,
entity or address to which notices under this Agreement are to be
sent as provided above, such party shall do so by giving the other
party to this Agreement written notice of such change.
P. When used in this Agreement, words of the masculine gender
shall include the feminine and neuter gender, and when the sentence
so indicates, words of the neuter gender shall refer to any gender;
and words in the singular shall include the plural and vice versa.
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This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be
and contain the entire understanding and agreement between the
parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions,
promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing
signed by all of the parties hereto. Further, paragraph headings
used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision
under this Agreement.
ATTEST:
CITY CLERK
APPROVED AS TO CONTENT:
Director of Engineer
APPROVED AS TO FORM:
kti � ' .
'�V
As istant City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
1.1 nager
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ATTEST:
By:,�
Randolph P. Myers,
Treasurer
DEVELOPER:
THE NEENAN
a Colorado
COMPANY,
corporation
D.G. Neenan, President
(Corporate seal)
10inj Ipm
JMC REAL ESTATE COMPANY, LLLP
a Colorado limited liability
limited partnership
By:��/�l
Scott Thomas, General Partner
is
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of
sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of
sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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EXHIBIT "B"
NOT APPLICABLE
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certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, it is agreed
as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the Property. For the
purposes of this Agreement, "development activities" shall include,
but not be limited to, the following: (1) the actual construction
of improvements, (2) obtaining a building permit therefor, or (3)
any change in grade, contour or appearance of said property caused
by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water lines, sanitary sewer collection lines, storm
sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be installed as shown on the approved utility plans
and in full compliance with the Council -approved standards and
specifications of the City on file in the office of the Director of
Engineering at: the time of approval of the utility plans relating
to the specific utility, subject to a three (3) year time
limitation from the date of execution of this Agreement. In the
event that the Developer commences or performs any construction
pursuant hereto after three (3) years from the date of execution of
this agreement, the Developer shall resubmit the project utility
plans to the Director of Engineering for reexamination. The City
may require the Developer to comply with approved standards and
specifications; of the City on file in the office of the Director of
Engineering at: the time of resubmittal.
C. No building permit for the construction of any structure
within the development shall be issued by the City until the water
lines, fire hydrants, sanitary sewer lines, and public streets
(including curb, gutter and sidewalk and pavement with at least the
base course completed) serving such structure have been completed
and accepted by the City. Notwithstanding the foregoing, the
Developer shall be entitled to receive a footing and foundation
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permit for the construction of improvements within the development
upon the installation of adequate water lines, fire hydrants, and
street access to provide fire protection and other emergency
services to the site. No building permits shall be issued for any
structure located in excess of six hundred and sixty feet (660')
from a single point of access.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/or streets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." If the Director of Engineering has determined that
any water lines, sanitary sewer lines, storm drainage facilities
and/or streets are required to provide service or access to other
areas of the City, those facilities shall be shown on the utility
plans and shall be installed by the Developer within the time as
established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the
Developer agrees to install and pay for all water, sanitary sewer,
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the approved plat, site,
landscape and utility plans, and other approved documents
pertaining to this development on file with the City.
F. Street improvements (except curbs, gutters and walks)
shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot
service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility
plans shall be inspected by the Engineering Department of the City
and shall be subject to such department's approval. The Developer
agrees to correct any deficiencies in such installations in order
to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the utility
plans shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and
constructed by the Developer as to protect downstream and adjacent
properties against injury and to adequately serve the Property (and
other lands as may be required, if any). The Developer shall meet
or exceed the minimum requirements for storm drainage facilities as
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have been established by the City in its Drainage Master Plans and
Design Criteria. The Developer does hereby indemnify and hold
harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious
storm drainage or seepage waters from the Property in a manner or
quantity different from that which was historically discharged and
caused by the design or construction of the storm drainage
facilities, except for (1) such claims and damages as are caused by
the acts or omissions of the City in maintenance of such facilities
as have been accepted by the City for maintenance; (2) errors, if
any, in the general concept of the City's master plans (but not to
include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific directives that
may be given to the Developer by the City. Approval of and
acceptance by the City of any storm drainage facility design or
construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional engineer to
design the storm drainage facilities as aforesaid and it is
expressly affirmed hereby that such engagement shall be intended
for the benefit of the City, and subsequent purchasers of property
in the development.
I. The Developer shall pay storm drainage basin fees in
accordance with Chapter 26, Article VII of the City Code. Storm
drainage improvements eligible for credit or City repayment under
the provisions; of Chapter 26 are described together with estimated
cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and
construction costs. See Section II.C, Special Conditions, Storm
Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the Director of Engineering
with certified Record Plan Transparencies on Black Image Diazo
Reverse Mylars upon completion of any phase of the construction.
K. The Developer specifically represents that to the best of
its knowledge all portions of the Property dedicated to the City
associated with this development are in compliance with all
environmental protection and anti -pollution laws, rules,
regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection
Agency Regulations at 40 C.F.R., Part 261, and that such portions
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of the Property as are dedicated to the City pursuant to this
development, are in compliance with all such requirements
pertaining to the disposal or existence in or on such dedicated
property of any hazardous substances, pollutants or contaminants,
as defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless
the City from any liability whatsoever that may be imposed upon the
City by any governmental authority, pertaining to the disposal of
hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation
and/or backfill of hazardous substances, pollutants or
contaminants, or environmental cleanup responsibilities of any
nature whatsoever on, of, or related to any property dedicated to
the City in connection with this development. The Developer
further agrees to indemnify and hold harmless the City from any
claims or actions based directly, indirectly or in any manner on
any of the aforementioned environmental risks brought against the
City by third parties arising as a result of the dedication of
portions of the Property to the City in connection with this
development. Said indemnification shall not extend to claims,
actions or other liability arising as a result of any hazardous
substance, pollutant or contaminant generated or deposited by the
City, its agents or representatives, upon portions of the Property
dedicated to the City in connection with this development.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and
off -site storm drainage improvements, as shown on the approved
utility plans for the development, shall be completed by the
Developer in accordance with said approved plans prior to the
issuance of any certificate of occupancy for the development.
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Completion of improvements shall include the certification by a
professional engineer licensed in Colorado that the drainage
facilities which serve this development have been constructed in
conformance with said approved plans. Said certification shall be
submitted to the City at least two weeks prior to the date of
issuance for any certificate of occupancy.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The Developer shall also be required to post a security deposit in
the amount of $14,385.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion
control measures shown on the approved Plan. Said security deposit
shall be made in accordance with the criteria set forth in the
City's Storm Drainage Design Criteria and Construction Standards
(Criteria). If, at any time, the Developer fails to abide by the
provisions of the approved utility plans or the Criteria, the City
may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are
properly enforced. The City may apply such portion of the security
deposit as may be necessary to pay all costs incurred by the City
in undertaking the administration, construction, and/or
installation of the erosion control measures required by said plans
and the Criteria.
3. Lot 1 abuts certain storm drainage facilities and it
is agreed that it is of the utmost importance that no storm water
from said facilities enters any building constructed on Lot 1. In
order to provide the assurance that buildings constructed on Lot 1
are constructed at an elevation that said storm water cannot enter,
the approved utility plans for this development contain
specifications for the minimum elevation for any opening to any
such building.. Prior to the issuance of a certificate of occupancy
for any building on Lot 1 of this development, the Developer shall
provide certification from a professional engineer licensed in
Colorado that the lowest opening to any such building is at or
above the minimum elevation required on the approved utility plans
for the development, and that the lot grading and elevations are
the same as those specified on the approved utility plans. Said
certification is in addition to, but may be done in conjunction
with, the certification described in paragraph II.C.1. above.
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4. The Developer and the City agree that the Developer
is obligated to maintain all on -site storm drainage facilities not
accepted for maintenance by the City and all off -site storm
drainage facilities not accepted for maintenance by the City
serving this development and outside of the public rights -of -way.
5. Lot 1 is adjacent to the Poudre River floodway and
therefore the Developer and the City agree that the Developer shall
obtain a Flood. Plain Use Permit from the City's Stormwater Utility
prior to the issuance of any building permit for Lot 1. In
addition, the Developer shall submit a F.E.M.A. (Federal Emergency
Management Agency) Elevation Certificate to the City's Stormwater
Utility for review and approval prior to the issuance of any
certificate of occupancy for any building constructed on Lot 1.
D. Streets
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Prospect Road for those portions of said street
abutting the Property as shown on the approved utility plans.
Reimbursement shall be for oversizing Prospect Road from
residential standards to arterial standards. The City shall make
reimbursement to the Developer for the aforesaid oversized street
improvements in accordance with Section 24-121 of the Code of the
City. The Developer agrees and understands that the City shall
have no obligation to make reimbursement payments for street
oversizing unless funds for such payments shall first have been
budgeted and appropriated from the Street Oversizing Fund by the
City Council; and the Developer further understands that to the
extent that funds are not available for such reimbursement, the
City may not, in the absence of the Developer's agreement, require
the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic
impacts of the development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the
City for the cost of such construction. The Developer further
agrees to accept payment in accordance with Section 24-121 (d) of
the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses. It
is anticipated by the City that the City's reimbursement, in
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accordance with Section 24-121 (d), would not be less than fifty
percent (500) of the Developer's actual expenses incurred and will
be calculated in accordance with the formula as set forth in
Section 24-121(d).
2. It is understood that the street improvements to be
constructed as described in this Section II.D. are "city
improvements" and, as such, any contract for the construction of
the same must be executed in writing. If the cost of such
improvements exceeds the sum of Fifteen Thousand Dollars ($15,000),
the contract for the construction of the same must be submitted to
the City prior to the commencement of the work showing that the
award was given to the lowest responsible bidder. If the cost for
such improvements exceeds fifty thousand dollars ($50,000), the
contract for the construction of the improvements must be insured
by a performance bond or other equivalent security.
3. The Developer and the City agree that the arterial
street improvements to Prospect Road, as shown on the approved
utility plans for this development, shall be completed and accepted
by the City of Fort Collins Engineering Department prior to the
issuance of any certificate of occupancy for the development.
4. The Developer and the City agree that the Developer
is responsible for all costs for the initial installation of
traffic signing and striping for this development related to the
development's local street operations. In addition, the Developer
is responsible for all costs for traffic signing and striping
related to directing traffic access to and from the development
(e.g. all signing and striping for a right turn lane into the
development sate).
E. Ground Water
1. The Developer and the City recognize that this
development is adjacent to the Poudre River and that seepage from
said river may impact the ground water levels in the development.
Accordingly, the Developer and the City agree that the City shall
not be responsible for, and the Developer hereby agrees to
indemnify the City against, any damages or injuries sustained in
the development as a result of ground water seepage, whether
resulting from groundwater flooding, structural damage, or other
damage, unless such damages or injuries are sustained as a result
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of the City's failure to properly maintain its storm drainage
facilities in the development.
F. Parks and Recreation
1, The Developer and the City agree that upon: 1) the
completion of the construction of the bikeway/sidewalk connection,
which will extend from the existing Poudre River Trail westerly
along Lot 2 of the Neenan Office Building II Minor Subdivision and
connect to the sidewalk along Prospect Road, as shown on the
approved utility plans; (2) the City's acceptance of said
improvements; and (3) the Developer's full and final payment to its
contractor(s) for the completion of said improvements, the
Developer may request reimbursement for the City's portion of the
cost of said bikeway/sidewalk connection from the City Parks and
Recreation Department. Said reimbursement will be made by the City
at the written request of the Developer and the Developer is
responsible for supplying the City with copies of all documents
which may include bids, receipts, invoices, etc. necessary to
establish and document the actual cost of construction of said
bikeway/sidewalk improvements.
2. The Developer and the City agree that the City shall
be responsible for the maintenance of the bikeway/sidewalk
connection described in paragraph II.F.1. above.
G. Hazards and Emergency Access.
1. No combustible material will be allowed on the site
until a permanent water system is installed by the Developer and
approved by the City.
2. Prior to beginning any building construction, the
Developer shall provide and maintain at all times an accessway to
said building or buildings. Such accessway shall be adequate to
handle any emergency vehicles or equipment, and the accessway shall
be kept open during all phases of construction. Prior to the City
allowing combustible material on the site (other than forming
material for concrete footings, foundations and/or concrete walls)
such accessway shall be improved to a width of at least 20 feet
with 4 inches of aggregate base course material compacted according
to City Standards and with an 80 foot diameter turnaround at the
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