HomeMy WebLinkAboutPARAGON POINT PUD - Filed DA-DEVELOPMENT AGREEMENT - 2005-05-09DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this: _: ' day of
199 ;, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City" and
PARAGON POINT PARTNERS, a Colorado Limited Partnership, hereinafter
referred to as the "Developer."
LFiIY�i��aYY:Ei
WHEREAS, the Developer is the Owner of certain property
situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
PARAGON POINT PLANNED UNIT DEVELOPMENT, located in the SW 1/4
of Section 7, T. 6 N., R. 68 W., of the 6th Principal
Meridian, 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
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.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, it is agreed
as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development
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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 insures that its subcontractors shall
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. When the inspector determines that erosion (either by wind
or water) is likely to be a problem, the surface area of erodible
earth material exposed at any one time shall not exceed 200,000
square feet for earthworks operations. Temporary or permanent
erosion control shall be incorporated into the development at the
earliest practicable time. By way of explanation and without
limitation, said control may consist of seeding with approved
grasses, temporary dikes, gabions, and/or other devices.
E. 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.
F. 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.
G. 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.
H. 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.
I. This Agreement shall run with the Property and shall be
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binding upon 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 real or
proprietary 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.
J. 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.
K. 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
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.
L. 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.E of this Agreement.
THE CITY OF FORT COLLINS, COLORADO,
a Munipal Corporation
l
1'
By:i�C
City Manager
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ATTEST:
CITY CLERK
APPROVED AS TO CONTENT:
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Director 'of Engineering
A = S TO FORM:
City Attorney
DEVELOPER:
PARAGON POINT PARTNERS, a Colorado
Limited Partnership
By: Trustar, Inc., a Colorado
Corporation
Byron R. Collins, President
ATTEST:
(corporate seal)
Ruth G. Collins, Secretary
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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.
As defined in the Special Conditions of this Agreement.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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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.
As defined in the Special conditions of this Agreement.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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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 line trenches, sanitary sewer collection line
trenches, 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 streets (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 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,
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 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 has met or
exceeded 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 development 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 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
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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
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 pursuant to 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 pursuant to 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 pursuant to 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 shall be completed by the
Developer in accordance with the approved plans prior to the
issuance of more than 15 building permits. Completion of
improvements shall include the certification by a licensed
professional engineer that the drainage facilities which serve this
development have been constructed in conformance with said approved
plans.
2. The Developer agrees to provide and maintain erosion
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control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The Developer is also required to post a security deposit 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 Storm Drainage Design Criteria and
Construction Standards.
3. It is understood and agreed that lots 8, 9, 10, 23,
24, 25, 26, 27, 28, 44, 45 and 46 are or may be subject to erosion,
accretion and/or reliction by reason of the meandering of Fossil
Creek and by reason of the erosion of the "bluffs" adjacent thereto
over the passage of time. The Developer on behalf of himself and
the subsequent owners of the aforesaid lots, does and do hereby
release the City from any responsibility or liability whatsoever
for losses or injuries sustained by reason of said erosion,
accretion or reliction due to natural influences upon the Fossil
Creek Channel and upon the adjacent cliffs and bluffs. The
Developer also agrees to include a release provision for the
benefit of the City and the Developer in the Declaration of
Covenants for this development pertaining to the subsequent owners
of the aforesaid lots.
4. The Developer and the City agree that the storm
drainage system for this development contains some features that
make it important to construct the facilities in accordance with
the plans and to ensure that the facilities are maintained and kept
operational throughout the buildout of this development. For this
reason the following additional requirements shall be followed for
building on Lots 9, 10, 25, 26, 45, 46, 52 and 53:
The drainage improvement system required to be constructed on
the above Lots shall be completed in accordance with the
approved utility plans and said completion shall be certified
as being in accordance with said plans by a licensed
professional engineer. Said certification shall be received
by the City prior to the issuance of a building permit for any
of the above lots. A certification by such engineer that the
drainage systems' function and adequacy to serve its purpose
has not been impaired by the construction and landscaping on
said lot shall be submitted to the City prior to the issuance
of a certificate of occupancy for each of the above lots.
5. The Developer and the City agree that the City shall
compensate the Developer for the right to enlarge the drainage
easement onto the land area between the "Limits of 100 Year
Floodplain (Existing) Elev.= 4895.1" and the "Limits of 100 Year
Floodplain (Developed) Elev.= 4896.2" as shown on the approved plat
for this development and further defined by the attached Exhibit
"C". The agreed upon amount of said compensation is $88,639, which
is calculated using $7,701 per acre for 11.51 acres and shall be
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paid upon the filing of the approved plat of Phase One for this
development.
6. The Developer and the City agree that the Developer's
engineer shall prepare a Stability Study and update the floodplain
in the city's Fossil Creek Master Drainageway Plan, dated August
1982, as defined in the attached Exhibit "B." The above
requirements shall be completed prior to the final Planning and
Zoning Board approval of the next filing within this development.
D. Streets.
1. The Developer and the City agree that because the
development contains so much land that is not developable and the
City does not want permanent street improvements constructed at
this time adjacent to the development along the frontage of Lemay
Avenue and Trilby Road, special consideration shall be given to
guaranteeing that the Developer's share (the local street portion)
of arterial street improvements are completed along said frontage
of Lemay Avenue and Trilby Road in this development. The
requirements of the Developer for the design and construction of
the arterial street improvements on Lemay Avenue and Trilby Road
shall be as follows:
a. For Lemay Avenue the Developer will pay the City
$124,141 for future Lemay-related street improvements. The first
payment of $62,070 shall be paid to the City at the time the first
building permit is issued for the west section of Phase 1 (lots 31-
62, as shown on the approved plat for this development). The
remaining amount ($62,071) shall be paid to the City at the time
the first building permit is issued for the next succeeding phase
of this development that occurs within the area of Tract "D" of
this development as shown on the approved plat for this
development. The aforesaid sums are amounts estimated to be the
costs of the Developer's share of Lemay Avenue improvements in the
year 1992. If any portion of said sums are paid by the Developer
beyond the year 1992, the Developer agrees to pay the amount
stipulated plus an additional amount added to recognize the effects
of inflation. The inflation factor (Inf. Fac.) shall be calculated
using the construction cost index for Denver as published in the
Engineering News Record (ENR) for January, 1993, as the base index
(I -base) and the same index published in the ENR in the month
preceding payment (I -payment date). The formula for calculating
said inflation factor shall be as follows:
Inf. Fac. _ (I -Payment date) -(I -base).
(I -base)
Said amount added to the payment for inflation shall be equal to
the amount to be paid times the inflation factor. Upon receipt of
full payment to the City by the Developer, the Developer's full
obligation for the Lemay Avenue improvements shall be complete.
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b. For Trilby Road the Developer will pay the City
$249,862 for future Trilby -related street improvements in
accordance with the following:
The Developer will pay the amount of $1,400 with the issuance
of each building permit for each dwelling unit commencing with
the first building permit issued in Phase 1 and all succeeding
building permits. If any portion of said sums are paid by the
Developer beyond the year 1992, the Developer agrees to pay
the amount stipulated plus an additional amount added to
recognize the effects of inflation increased each year until
payment is completed in full. The inflation factor (Inf.
Fac.) for each year's payments shall be calculated using the
construction cost index for Denver as published in the
Engineering News Record (ENR) for January, 1993, as the base
index (I -base) and the same index published in the ENR for the
January in each succeeding year immediately preceding payment
(I -year of payment). The formula for calculating said
inflation factor shall be as follows:
Inf. Fac. _ (I -year of payment) -(I -base).
(I -base)
Said amount to be added to each $1,400 payment to compensate
for inflation shall be equal to $1,400 times the inflation
factor. The amounts added to compensate for inflation shall
not count for reducing the total (principal) amount due. Upon
receipt of full payment to the City by the Developer, the
Developer's full obligation for the Trilby Road improvements
shall be complete. Notwithstanding the foregoing payment
obligation and schedule, the Developer must complete its
payment obligation to the City for Trilby Road by making a
final payment (equal to the $249,862 minus the total
(principal) amount from the $1,400 payments previously made to
the City) prior to the issuance of the first building permit
for the first filing approved by the City within Tract "D" of
this development as shown on the approved plat for this
development. Said final payment shall also include an amount
added for inflation equal to said final payment times the
inflation factor.
C. The Developer, at its sole expense, shall be
allowed at any time (depending upon reasonable weather for
construction) to construct a temporary asphalt pavement overlay on
the existing gravel roadway of Trilby Road from the easterly
boundary of this development to Lemay Avenue. Said overlay shall
be for two traffic lanes and shall include six foot wide shoulders.
The City may participate with the Developer in the cost of
construction for improvements that are determined by the City to be
necessary to meet general citywide needs. A determination of how
any such cost shall be shared will be made at the time a future
phase of this development is considered for City approval. Since
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an overlay is only a temporary improvement, participation by the
City shall not be from funds paid by the Developer to the City for
the Developer's portion of permanent improvements of Trilby Road
(said $249,862 in paragraph II.D.l.b.).
2. The Developer and the City agree that no street
oversizing reimbursement is due the Developer for this development.
3. The Developer and the City agree that the Developer
shall be entitled to reimbursement for the costs to construct that
portion of Southridge Greens Boulevard located off -site, north of
this development on the golf course and connecting into the
existing deadend cul-de-sac within the Southridge Greens
development up to the amount of funds available in an escrow
account specifically established for the purpose of constructing
said portion of Southridge Greens Boulevard. The Developer shall
submit proof of its actual costs in accordance with the provisions
of Section 24-121 of the City Code. The City shall reimburse the
Developer from the funds held by the City in said escrow account.
The amount of reimbursement shall be limited to the amount placed
in said escrow account ($14,900) plus interest accrued within said
escrow account. Interest accumulated through December 31, 1991, is
$7,634.76.
4. The Developer and the City agree that no construction
traffic shall be allowed to access the development site using
Southridge Greens Boulevard during the time of constructing the
public improvements required to serve this development and up to
the time of issuance of the first certificate of occupancy on any
of lots 1 through 30. As construction for extending Southridge
Greens Boulevard begins, a barricade shall be erected and
maintained by the Developer such that construction traffic cannot
access the development site from Southridge Greens Boulevard. Said
barricade shall be removed by the Developer only after the issuance
of the first certificate of occupancy.
E. Conservation/Erosion Restriction.
1. The area identified on the plat and site/landscape
plan as a conservation/erosion restriction area constitutes an area
of potential erosion and/or an area of rock outcroppings. Within
said conservation/erosion restriction area no building, grading or
planting shall be permitted except the planting of native
vegetation and except for grading and other excavation necessary
for the installation and maintenance of utilities and erosion
control facilities. The intent of the conservation/erosion
restriction is to conserve and preserve the area in its present
natural state. No solid fences shall be constructed within the
conservation/erosion restriction area and no building permit shall
be issued for any lot which is burdened by the conservation/erosion
restriction until grading plans and building envelopes have been
submitted to and approved by the City showing preservation of the
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conservation/erosion restriction area portion of such lot in its
present natural condition.
F. Paragon Park.
1. The Developer and the City have discussed the need
for a neighborhood park within the development. Subject to the
approval of the design plans by the City Parks and Recreation
Board, the Developer and the City staff, and subject to final City
Council approval of a dedication of land to the City for said park,
the Developer agrees to finance and construct said park pursuant to
the mutually approved design plans during the calendar year of
1993-94, with the understanding that the park will be totally
completed not later than November 15, 1994, assuming the design
plans are mutually approved by no later than December 31, 1993.
Upon completion of said park and its approval and acceptance by the
City, in conformance to City Standards (and following a 2 year
period for the establishment of the park vegetation, during which
the Developer shall maintain the park), the City will assume and
continuously thereafter provide the maintenance of the defined
"City portion" of the park. Following approval and acceptance of
said park by the City, any fees collected, whether prior to the
City approval of said park or subsequent thereto, by the City as
Parkland Fees from this development to pay for the development of
a neighborhood park, shall be remitted to the Developer in
consideration for the Developer's installation of said park. Such
Parkland Fees collected shall be remitted by the City to the
Developer initially as a lump sum for all fees collected as of the
date of acceptance and thereafter remitted quarterly as said fees
are collected, and in both cases, along with a statement listing
the lots from which a Parkland Fee has been collected. The maximum
amount to be paid by the City to the Developer shall not exceed the
funds available in the account from this development for said park
and shall not exceed the amount paid by the Developer for building
said park.
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
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