HomeMy WebLinkAboutFOSSIL CREEK ESTATES PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-04DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this " day of JU LY
199_�-_, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
DR. RICHARD S. WUERKER, an individual, hereinafter referred to as
the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property
situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
FOSSIL CREEK ESTATES P.U.D., FIRST FILING, situate in the
Northeast. 1/4 of Section 10, Township 6 North, Range 69 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
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
II.D.3 above, and prior to the issuance of a building permit for
Lots 2, 3, 6, 7, and 9 through 12 of this development. Said
easement(s) shall expire upon completion and City acceptance of
said improvements.
4. In accordance with Section 24-95(a) of the City Code,
and in order to minimize the disturbance of grading, landscaping,
and other improvements related to the houses to be constructed on
Lots 2, 3, 6, 7, and 9 through 12 of this development, the
Developer and the City agree that no building permit for said lots
shall be issued until the improvements to Shields Street adjacent
to each of said Lots have been completed and accepted by the City,
or until the interim gre.ding as shown on the approved utility plans
has been completed and accepted by the City and the security
deposit and construction easement(s) described in paragraph II.D.3.
have been deposited with and conveyed, respectively, to the City.
5. 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 sic[ning and striping for a right turn lane into the
development site).
6. The Developer and the City agree that the City is in
the process of negotiating with the adjacent property owner
immediately to the west of this development to acquire said
property for natural area as an expansion of the Cathy Fromme
Prairie. Therefore, prior to the issuance of a building permit for
either of Lots 36 and 37 and if the City has nQL at that time
acquired said property to the west for natural area, the Developer
shall design and construct the extension of Fossil Creek Drive
along Lots 36 and 37 of this development to the west property line
of this development, and if necessary obtain an easement for and
construct a temporary turnaround in accordance with Section 29-
656(b) of the City Code, in order to provide public street access
for the property to the west. The Developer shall submit plans for
said improvements to the City for review and approval prior to
commencing construction of said improvements. Said improvements
must be completed prior to the issuance of a building permit for
either of Lots 36 and 37. If, however, at the time the Developer
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requests building permits for Lots 36 and 37, the City has acquired
the property to the west for natural area, Fossil Creek Drive shall
be constructed by the Developer as shown on the approved utility
plans and the Developer shall submit to the City a request to
vacate the excess public street right-of-way for the extension of
Fossil Creek Drive dedicated on the plat for this development prior
to the issuance of a building permit for either of Lot 36 and 37.
E. Ground Water
1. The Developer and the City recognize that the
groundwater study and soils report for this development identifies
high groundwater levels and the potential for perched groundwater
on the Property. In addition, the City and the Developer recognize
that this development is adjacent to the Scenic Knolls Irrigation
Ditch and that seepage from said ditch may impact the ground water
levels in the development. Accordingly, it is agreed that the
Developer shall be allowed to install a subdrain system, designed
to help prevent water from seeping into basements of homes
constructed within the development, in accordance with the approved
plans for this; development. The Developer and the City agree that
the City shall not be responsible for the maintenance of said
subdrain system and that it shall be the responsibility of the
Developer to maintain said subdrain system.
2. 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 of the City's failure to properly
maintain its :storm drainage facilities in the development.
F. Natural Resources/ Parks and Recreation
1. The Developer and the City agree that the City Parks
and Recreation Department is desirous of constructing a trailhead
on the north side of Fossil Creek Drive to provide public access to
the Cathy Fromme Prairie. The Developer shall coordinate the
grading and construction along the common boundary of the Property
and the Cathy Fromme Prairie with the City Parks and Recreation
Department in order to accommodate the access location for said
trailhead.
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2. The Developer and the City agree that the approved
site and landscape plans for this development contain notes and
information regarding the grading, landscaping, fencing, and
reseeding of the area along the common boundary between the
Property and the Cathy Fromme Prairie. Prior to commencing grading
along said boundary, the Developer shall notify the City's Natural
Resources staff to conduct a site inspection of the area and to
determine the limits of construction disturbance. In addition,
upon completion of said grading and prior to the issuance of a
certificate of occupancy for Lots 37 and 38, the Developer shall
notify the City's Natural Resources staff to inspect and accept the
reseeding, landscaping, and fencing for conformance with the
approved site and landscape plans for the development.
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.
IVa
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
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 thereb;, divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
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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 t'iat a party has
been declared in default hereof, such defaulting party shall be
given written notice specifying such default and shall be allowed
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. 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:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
With a copy to:
If to the Developer:
With a copy to:
City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
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Notwithstanding the foregoing, if any party to this Agreement, or
their 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.
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. 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.
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
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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.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By:
cityl44anager
ATTEST:
CITY CLERK
APPROVED AS TO CONTENT:
6irector of Engineering
APPROVED AS T(�ORM^,
i� � I
A istant City Attorney
DEVELOPER:
By:�-
Dr. ichard S. Wuerker, an individual
W.
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.
South Shields Street improvements shall be completed in
accordance with Section II.D. of this Agreement.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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EXHIBIT "B"
NOT APPLICABLE
m
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. g_neral 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. No building permits shall be issued for
any structure located in excess of six hundred and sixty feet
(6601) 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,
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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 agatinst 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
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
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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 Liner 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
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
4
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 agree:; 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.
L. The parties agree that the conducting of earth work
activity in or around a live, active prairie dog colony could
constitute, under Section 4-70(a) of the City Code, cruel ill-
treatment and abuse of the affected animals. Ac^ordingly, all
prairie dogs residing on the Property shall either be humanely
relocated or exterminated in accordance with Section 4-119 of the
City Code, prior to the commencement of any earth work in or around
any such prairie dog colony.
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 more than nine (9) building permits in 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 building permit greater than said nine (9)
building permits.
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 $9,975.00 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. The Developer shall obtain the City's prior approval
of any changes from the approved utility plans in grade elevations
and/or storm drainage facility configuration that occur as a result
of the construction of houses and/or development of lots, whether
by the Developer or other parties. The City reserves the right to
withhold the issuance of building permits and certificates of
occupancy until the City has approved such changes as being
acceptable for the safe and efficient delivery of storm drainage
water.
4. The Developer and the City agree that the site
topography and the storm drainage system for this development
contains some features that make it important to construct the
storm drainage facilities in accordance with the approved plans and
to ensure that the facilities are maintained and kept operational
0
throughout the, buildout of this development. For this reason the
following additional requirements shall be followed :or building on
Lots 1 through 11, 15 through 28, 37, and 38 of this development:
The drainage improvement system required to be constructed on
the above lots in this development, including the lot grading,
swale grading, minor swale grading, and lot corner elevations,
as shown on the approved utility plans for the development,
shall be completed in accordance with said approved plans and
said completion shall be certified as being in accordance with
said plans by a professional engineer licensed in Colorado. A
certification by such engineer that the lot grading, swale
grading, minor swale grading, lot corner elevations, and the
drainage system's function and adequacy to serve its purpose
has not been impaired by the construction and landscaping on
each of the above lots, shall be submitted to the City prior
to the issuance of a certificate of occupancy for each of the
above lots in the development. Said certification shall be
submitted to the City at least two weeks prior to the date of
issuance of any certificate of occupancy for each of said
lots.
The Developer shall also file a notice with the Larimer County
Clerk and Recorder describing the landscaping and fencing
restrictions i:hat exist for the drainage easements on all lots in
this development. Said notice shall reference the location of the
specific restrictions shown on the plans and notes in the approved
utility plans for this development. Said notice shall be filed in
a City approved form prior to the sale of any lots affected by such
restrictions.
5. 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.
6. The Developer and the City agree that the retaining
wall adjacent to Lots 11 through 14 of this development shall be
designed by a professional engineer licensed in Colorado and that
said design shall be submitted to the City for review and approval
prior to the issuance of any building permit for said lots.
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7. In the event that the Developer chooses to escrow
funds for the arterial improvements for Shields Street in lieu of
constructing said improvements, as described in Paragraph II.D.3.
of this Agreement, the,approved utility plans include an interim
grading plan for the Shields Street right-of-way to provide
shoulders and drainage for the existing roadway until the arterial
street improvements are constructed in the future. If the
Developer chooses to escrow funds in lieu of constructing the
arterial street improvements as described above, the Developer and
the City agree that the Developer shall grade the Shields Street
right-of-way in accordance with said interim grading plan, reseed
the disturbed area, and stabilize the borrow ditch immediately upon
completion of said interim grading. Said reseeding and
stabilization shall be done in conformance with the City's Storm
Drainage Design Criteria and Construction Standards and under the
direction of the City's Erosion Control Inspector.
D. Streets
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Shields Street for those portions of said street
abutting the Property, as shown on the approved utility plans,
including the oversizing portion of the reconstruction of the
Scenic Knolls Irrigation Ditch siphon beneath Shields Street.
Reimbursement for Shields Street shall be for oversizing the west
side of the street from residential standards to arterial
standards. The City shall make reimbursement to the Developer for
the aforesaid oversized street improvements in accordance with
Section 24-12'L 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
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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 accordance with Section 24-121 (d), would
not be less than fifty percent (501) 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 onstruction 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 is obligated to complete the design and
construction of street improvements along South Shields Street
adjacent to this development. Said improvements shall be completed
prior or the issuance of more than nine (9) building permits in the
development. Notwithstanding the foregoing, the Developer shall
have the option to postpone the completion of said improvements and
obtain more than said nine (9) building permits prior to the
completion of said improvements following the escrow of funds to be
deposited with the City in the form of cash, bond, irrevocable
letter of credit or other form of City approved security sufficient
to guarantee completion of said improvements. The escrow amount
shall be 15020- of a City approved engineer's estimate for the
improvements excluding the street oversizing portion of the
improvements for which the Developer may be eligible for
reimbursement or, if a cash escrow is deposited with the City, said
escrow shall be 1000 of said engineer's estimate. In the event
that the Developer chooses to deposit funds with the City for the
Shields Street improvements in lieu of constructing said
improvements as described above, the Developer shall submit to the
City a temporary construction easement(s) for the future completion
of the Shields Street arterial improvements. Said easement(s)
shall be submitted along with the deposit described in paragraph
G