(A) The Public Works Director may direct that construction of off-site improvements, or portions thereof, be deferred when such improvements are impractical or premature because of traffic conditions, unavailability of necessary right-of-way, the potential for creation of scalloped streets, or other conditions detrimental to orderly development, and/or because of the known and acknowledged formation or pending formation of an improvement district.
(1) Engineering plans for all off-site improvements shall be prepared, submitted and approved in accordance with § 50.05(B), whether or not construction is deferred.
(2) Infrastructure plans incorporating abutting, adjacent or other benefitted property will not be required unless it is determined by the Public Works Director that improvements have a direct impact on the abutting off-sites, such as a bridge or railroad crossing on or adjacent to the parcel to be developed, in such case common infrastructure plans will be required.
(3) Plans will include an analysis of drainage and establishment of grades on both sides of the roadway for a minimum of 500 feet beyond the project limits in each direction unless waived or reduced by the Public Works Director.
(4) The developer of the property for which a deferral has been issued shall enter into an agreement with the town which shall be recorded to run with the land, and shall post financial assurance as set forth below to guarantee the required off-site improvements will be constructed when directed by the Public Works Director.
(B) Notice to proceed.
(1) The Public Works Director will give written notice to proceed with the construction of the off-site improvements previously deferred when necessitated by road condition, current or projected traffic, adjacent construction, or other conditions which require additional access.
(2) The developer shall start construction of such off-site improvements within 90 calendar days from the date of such notice, shall continuously and diligently perform the construction and shall conclude such construction within the time period set forth in the approval, but in no event longer than 180 days (or such shorter or longer period of time set forth by the Public Works Director in the notice to proceed) from the beginning of construction, in accordance with plans approved by the town.
(3) If the developer fails to construction any of the off-site improvements when directed, or fails to timely complete construction of the off-site improvements, the town may construct said off-site improvements, or may complete construction of said off-site improvements, and obtain payment therefore from the surety issuing the assurance.
(4) The developer's obligation will be satisfied when all required off-site improvements have been constructed by the developer or another party, or when all required off-site improvements have been constructed by a community facilities district or assessment district formed at the discretion of the town.
(C) Performance bond. The Department shall require the posting of performance bonds, letters of credit, assurances or such other security as may be appropriate and necessary to assure the installation of all off-site improvements. Said security shall remain in full force and effect until such time as all required off-site improvements are constructed and accepted. In the case of projects which are divided into a number of large parcels subject to additional subdivision at a later time, only the major infrastructure necessary to serve all parcels and adjacent land shall be subject to these requirements. The form of the assurance must be acceptable to the Town Attorney and will be in an amount fixed by the Department. Receipt of an acceptable assurance will be required at the time of approval of improvement plans.
(D) Partial construction. When it is impractical for the town to accept a financial assurance because the schedule for town off-site improvements is undetermined or unreasonably far into the future, or if for any other reason the off-site improvements are constructed by the developer, the Department will order the construction of one or both sides of sufficient roadway necessary to ensure an orderly traffic flow. The cost of construction of improvements beyond the center of abutting streets or beyond the property limits (other than tapers, two foot wide paving on the opposite side of the center line and other transitional items) shall be applied toward the amount of the developer's total obligation set forth in the benefit study, or the developer may enter into a reimbursement agreement with the town of recover costs from other developers as prescribed in division (H) below.
(E) Benefit study.
(1) If requested by the developer, a benefit study, paid for by the developer seeking reimbursement or credit, shall be prepared by an engineer registered and qualified in the state and selected by the town and utilized as the basis of determining a developer's full off-site improvement obligation.
(2) Use of the benefit study is required to ensure that the costs of the infrastructure common to or directly serving other property are equitably borne by all property owners in the subject study area. The amount and the purpose of the obligation for each property owner shall be stated in the benefit study subject to adjustment for inflation based on the ENR Construction Cost Index published by McGraw-Hill, Inc., and actual construction costs or such other index selected by the Public Works Director.
(3) When development occurs in areas which have not been included in benefit studies, the obligations will be estimated by the Public Works Director or, at the developer's option, may be determined by a developer-funded benefit study.
(F) Credit. When improvements are developer constructed, the developer will be credited for the off-site improvements they construct against the developer's obligation set forth in the benefit study. Off-site improvements for which credit is applied must be those set forth in the benefit study, but need not be those specific obligations set forth for any particular property. Where possible, the credit will be established with physical quantities such as lineal feet of curb and gutter, square feet of asphalt, and the like. Where physical quantities cannot be established, such as portions of railroad crossings, portions of canal improvements, and the like., the obligation to be met shall be the estimated current value for the item as set forth in the benefit study. The benefit study analysis and determination of credit for work performed will be accomplished by the town's benefit study consultant at developer expense. If the off-site improvements to be installed by the developer do not satisfy the full obligation of the property as set forth in the benefit study, the developer may:
(1) Install additional off-site improvements approved by the town, credited at values established by the benefit study as opposed to actual costs, up to the value of the developer's full obligation;
(2) Pay the cash differential which will be held in a trust account for use only for the designated improvements; or
(3) Provide an appropriate security, in such form approved by the Town Attorney, to guarantee construction of the remainder of the developer's obligation when determined necessary by the Public Works Director as set forth in division (2) above.
(G) Town participation. When development occurs prior to initiation of town off-site improvements, the town will not be obligated to participate in the off-site construction costs; however, when funds budgeted for town participation in the off-site improvements are available, the Town Council may authorize the use of such funds to defray the off-site infrastructure costs. The amount of such defrayal shall not exceed the amount of town participation set forth in the benefit study for the developer's property.
(H) Repayment agreement.
(1) When the value of off-site improvements constructed exceeds the developer's obligation as determined by the benefit study, the developer may be entitled to enter into a repayment agreement with the town to provide for recovery of costs from others who develop later on land adjacent to the off-site improvements constructed by such developer or otherwise directly utilize off-site improvements constructed by such developer.
(2) To be eligible for repayment, all such improvements must have been publicly bid in accordance with the provisions pertaining to public works projects under A.R.S. Title or a public bidding process approved by the Public Works Director in writing prior to advertising for bids, provided such bid process, at a minimum requires:
(a) A minimum of three bids to be received on the project;
(b) The sealed bids are opened in the presence of the Town Engineer; and
(c) The level of repayment is based on the low bid submitted, regardless of whether that bidder is selected by the developer.
(3) In those cases where existing development will preclude property owner repayment, the Town Council may, in its sole discretion, authorize reimbursement from town funds subject to availability of funds. The Department shall determine the amount of improvements eligible for repayment, and such determination shall be made a part of the agreement. Repayment shall be made on the basis of the benefit study. Procedures for establishing agreements and collection payments shall be as set forth in § 50.31.
(Ord. 05-12, passed 7-12-2005)