The city shall have and exercise all powers capable for it to have as a home rule municipality pursuant to the Constitution and laws of the state, Article XII of the Charter and ordinances of the city to contract for, construct or install special or local improvements of every character within designated districts of the city and to assess the cost thereof, wholly or in part, upon the property specially benefited. The power to create special improvement districts, to assess the direct and incidental cost of the construction of public improvements of a local and municipal character or any part thereof against specially benefited property therein and to issue special or local improvement bonds is vested in the city council. The purpose of this article is to establish the procedure applicable to the creation of special improvement districts, the construction or acquisition of such improvements, the assessment of all or part of the costs thereof, the issuance of special or local improvement bonds and matters thereto related. Pursuant to Article XX of the State Constitution and the Charter, all statutes of the state which might otherwise apply in connection with special assessments or special improvement districts and which are in conflict with the provisions of this article are superseded.

(Code 1975, § 60-1; Ord. No. 1893, 8-14-89)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

District means a geographical division of the city and, in accordance with the provisions of C.R.S. Tit. 31, Art. 25, Pt. 5 (C.R.S. § 31-25-501 et seq.), the county in which the city is situated, for the purpose of assessing costs of any local improvement. When so declared by the city council, a district may include the entire municipal area. One or more noncontiguous parts or sections may be included in one district.

Owner means only a person in whom the record fee title is vested as shown by the records of the county assessor, regardless of whether the property is subject to recorded or unrecorded liens or encumbrances.

Property or land means all land within the city or otherwise as authorized by C.R.S. § 31-25-501(1), whether platted or unplatted, regardless of improvements thereon and regardless of ownership or lot or land lines. The term "property" or "land" also includes property subject to the franchise of any railroad whose tracks lie, either lengthwise or crosswise, within any street improved under this article. Lots may be designated in accordance with any recorded map or plat of the subject land, unplatted land by any definite description thereof and franchised land by the name of the corporation owning such.

(Code 1975, § 60-2; Ord. No. 1893, 8-14-89)

Cross reference— Definitions generally, § 1-2.

(a)

The improvements authorized by this article may constitute any special or local improvement, including construction, reconstruction, repair, replacement, renewal, extension and maintenance of the improvements, which confer a special benefit upon real property. Such improvements may, without limitation, but only for reference, include any public access or way, street, traffic safety fixtures, landscaping, open space and recreation, drainage and flood control, water, sewer and other municipal utility and public works improvements. Improvements enhancing community aesthetic qualities, amenities and the quality of life offered in the area are specifically authorized.

(b)

Unless specified in the ordinance creating the district, all improvements authorized by this article shall be situated within public easements, rights-of-way or other public property.

(c)

The city council may create a district for the purpose of constructing or acquiring improvements, or both such construction and acquisition.

(d)

Whenever the costs of improvements are to be assessed, wholly or in part, upon property within a district, the costs shall be assessed in amounts not exceeding the special benefit conferred upon the assessed property. Such assessment may be based on frontage, area, zone, a combination of such factors or any other equitable basis, to fairly allocate the special benefits as may be determined by the council. If, upon adoption of the ordinance creating a district, any property within the district has or if there is planned all or some part of the proposed improvements conforming to the approved improvement plan for the district, readily accessible and capable of integration with improvements to be constructed or otherwise acquired in furtherance of the improvement plan, the existing improvement may be accepted, in whole or in part, as part of the improvement plan, and the owner of the property may, when the assessment is made, be credited with the amount saved by the acceptance of such improvement as determined by the council, which amount shall reflect an offset and reduction for any costs of adaptation, modification or completion required to fully conform the improvement to the plan.

(Code 1975, § 60-3; Ord. No. 1893, 8-14-89)

(a)

Subject to the provisions of this section, a district may be initiated by the presentation of a petition subscribed by the owners of property to be assessed for more than one-half of the entire costs estimated in the petition to be assessed, subject to the city's review.

(b)

Contents of petition shall be as follows:

(1)

Every petition shall be in a form with content approved by the city manager and shall contain or have appended thereto the following:

a.

A map of the proposed district and a description of the land to be included in the district and assessed for the costs of the improvements. Such description may be made by any method reasonably calculated to apprise persons of the property to be included, including, without limitation, parcel identification numbers generated by the county for property tax purposes.

b.

A description of the type and location of improvements proposed, including a map depicting the location or area of the improvements.

c.

The estimated maximum costs with supporting documents, which maximum cost estimation shall exclude the costs of collection of assessments, capitalized interests on any bonds, capitalized bond reserves, bond issuance costs and other related and incidental costs.

d.

The proposed assessment method.

e.

Preliminary construction plans and specifications for the proposed improvements.

f.

The name and address of each owner signing the petition; a description of the land to be included in the district, which description may be made by any method reasonably calculated to apprise persons of the property to be included, including, without limitation, parcel identification numbers generated by the county for property tax purposes; and the proposed percentage of the entire costs which will be assessed against the land.

g.

The name, mailing address and telephone number of any person designated in the petition as representative of the petitioning owners.

h.

A waiver pursuant to Section 62-43.

(2)

Any petition may waive the requirements of notice, publication and hearing as set forth in Section 62-31.

(c)

The signature of any owner may be attached to a petition by the representative of the petitioners, and the signature may be made by the owner's attorney in fact authorizing the signature, with the power of attorney attached to the petition. No petitioner, the petitioner's heirs, successors, assigns or personal representative shall be permitted to withdraw from a petition after it has been filed with and accepted by the city.

(d)

Petitions shall be accompanied by cash or certified check in a nonrefundable amount as established by resolution of the city council, which sum shall be used to pay the costs associated with determination of the sufficiency of the petition and with the creation of the district. Upon and in the event of the creation of the district pursuant to the petition, the council shall have the discretion to reimburse the person paying the deposit by full or partial cash refund, reduction of the assessment levied against the property owned by the paying petitioner or otherwise as established by the council.

(e)

Petitions shall be filed with the city clerk. The city manager shall thereafter and within a reasonable time determine whether the requirements of this section have been satisfied. In the event of a finding of noncompliance or deficiency of the petition, the city manager may request of the petitioners or their representatives additional information or augmentive materials. Failure to provide such information within the time specified by the city manager, or within a reasonable time if not so specified, shall be grounds for rejecting the petition. The city manager shall have the discretion to make or cause to be made an independent determination of any matters set forth in the petition, including the estimated maximum costs of the proposed improvements and the allocation of assessment costs, notwithstanding the information set forth in the petition, and such determination shall be conclusive unless the city council, upon written application of the petitioners providing justification for such further consideration, wishes to examine the matter. If the city manager finds the petition to be insufficient or defective, the city manager shall provide written notice of the reason of such finding to one of the designated representatives of the petitioners. If a determination of sufficiency is made, notice of hearing pursuant to Section 62-31 shall be provided, unless the city manager determines that such notice and hearing have been waived, in which event an ordinance authorizing the creation of the district pursuant to Section 62-34 shall be duly presented for the council's consideration. Notwithstanding any other provision of this article, nothing in this subsection shall be construed to confer any right to the formation of a district pursuant to the filing of a sufficient petition.

(f)

A petition may be submitted as set forth on one or more counterparts, all of which shall constitute a single petition.

(Code 1975, § 60-4; Ord. No. 1893, 8-14-89)

(a)

The city manager shall have the authority to initiate a district without a petition, and in lieu of the procedure set forth in Section 62-29, upon a determination that the public improvements identified would confer a special benefit upon the land described for inclusion into the proposed district. No petition having been filed with the city by owners shall impair or limit the power of the city manager to initiate a district under this section.

(b)

Upon initiating a district, the city manager shall have authority to do all things necessary and incidental to the formation of a district, including preparation of a district map, securing costs estimates and preliminary construction plans and specifications.

(Code 1975, § 60-5; Ord. No. 1893, 8-14-89)

(a)

Unless excused pursuant to subsection (c) of this section, the city clerk shall give notice of hearing for district initiation pursuant to this article, whether by petition or pursuant to the authority of the city manager. Such notice shall be published once, pursuant to Section 2-1, at least 15 consecutive days prior to the date of the hearing. The city clerk shall also mail such notice by United States mail, postage prepaid, to the owners of land situated within the proposed district on or about the date of such publication; however, legal publication shall be deemed good and sufficient, and the failure of receipt of written notice shall not cause the district formation proceedings to be legally defective. Ownerships shall be deemed properly determined if taken from the records of the county assessor within 30 days prior to such mailing.

(b)

The notice of hearing shall include the following:

(1)

A description of the general nature and location of the proposed improvements.

(2)

A description of the land to be included in the proposed district and subject to assessments for special benefits conferred thereto. Such description may be made by any methods reasonably calculated to apprise persons of the property to be included, including, without limitation, parcel identification numbers generated by the county for property tax purposes.

(3)

The proposed method of assessment.

(4)

The estimated maximum costs of the improvements, including assessment collection costs, capitalized interest on bonds, capitalized bond reserves, bond issuance costs and other related and incidental costs.

(5)

The estimated time to fully pay the improvements costs.

(6)

The place and times that all available documents relating to the proposed district may be examined.

(7)

The date, time and place of the public hearing before the city manager.

(8)

A statement that all protests and objections as more specifically provided for in Section 62-32(b) must be filed in writing with the city clerk at least three days prior to the date of the hearing before the city manager and that, unless timely filed, all protests and objections shall be deemed waived.

(c)

If any petition or other instrument separately acknowledged is presented containing the signature of all the landowners in the proposed district, which contains a waiver of notice, publication and hearing in compliance with Section 62-29(b)(2), the city manager may, in the city manager's discretion and upon a finding that the public interest would be served by such waiver, waive any or all of the notice, publication and hearing requirements.

(Code 1975, § 60-6; Ord. No. 1893, 8-14-89; Ord. No. 3392, § 18, 8-9-16; Ord. No. 3476, §§ 18, 7-10-18)

(a)

The city manager shall conduct a public hearing pursuant to the notice published for the purpose of considering the appropriateness and public need or desirability of the proposed improvements and any special benefits to be conferred thereby. The city manager may postpone or continue such hearing or relocate the hearing by announcing such postponement, continuance or relocation at the time and place originally set for the hearing or by then posting notice thereof. No further or additional notice shall be required.

(b)

All protests and objections to the district, the improvements or any method of assessment proposed shall be in writing specifying the basis of protest or objection claimed and shall describe the land owned by the submitting party affected by the proposed district (objector); shall be signed and acknowledged by the objector or signed by legal counsel representing an objector; and must be filed with the city clerk at least three days prior to the hearing. All protests and objections shall be deemed waived unless made at the time and in the manner specified in this subsection.

(Code 1975, § 60-7; Ord. No. 1893, 8-14-89)

(a)

If the city intends to construct or serve as the principal party contracting for the construction of proposed improvements, after the hearing conducted in compliance with Section 62-32 or waiver thereof as authorized by Section 62-31(c), the city manager shall cause the following to be prepared:

(1)

A detailed cost estimate of each substantial improvement proposed, along with an inclusive cost estimate of all improvements, unless the city manager determines that the cost estimates prepared prior to the hearing are adequate.

(2)

Comprehensive construction plans and specifications.

(3)

A map depicting the land to be included within the district, unless the city manager determines that the map prepared prior to the hearing is adequate.

(b)

If the proposed improvements are to be acquired by the city, after the hearing conducted in compliance with Section 62-32 or waiver thereof as authorized by Section 62-31(c) the city manager shall cause the following to be prepared:

(1)

Detailed cost records or estimates for each substantial improvement proposed, which may be based on comprehensive design and construction plans, along with inclusive cost records or estimates for all improvements.

(2)

A map depicting the land to be included within the district, unless the city manager determines that the map prepared prior to the hearing is adequate.

(Code 1975, § 60-8; Ord. No. 1893, 8-14-89)

(a)

If the city manager determines after considering the petition, if any, and any evidence presented at the public hearing, unless waived, that the public interest would be served by the improvements proposed and that a special benefit would be conferred upon the land included in the district, the city manager shall cause to be submitted to the city council an ordinance authorizing the creation of the district and the acquisition or construction of such improvements.

(b)

The city council shall have plenary legislative authority to adopt or reject the ordinance as recommended by the city manager or to adopt the ordinance as amended. The improvements, property to be included in the district, estimated costs, method of assessment and any other matters concerning the district formation may be modified by the city council from the petition, if any, and any notice of hearing; provided, however, that no substantial modification shall be made unless notice and hearing, or waiver thereof is provided as set forth in this section. The council, however, may modify the ordinance without providing subsequent notice and hearing, upon a finding that such modification is not substantial. Modifications consisting of elimination of properties from a district shall not constitute substantial modifications for purposes of requiring such subsequent notice and hearing.

(c)

In the event that substantial modifications to a proposed district are introduced before the council, prior to it adoption, the following alternative procedures shall be invoked at the discretion of the council:

(1)

The council may reject the ordinance and refer the matter to the renewal of the initiation, notice and hearing provisions set forth in Sections 62-29 to 62-33.

(2)

The council may postpone or continue the second reading to provide sufficient interim time to publish notice and conduct a hearing before the city manager pursuant to Sections 62-31 and 62-32.

(3)

The city council may postpone or continue the second reading to provide sufficient interim time to publish notice and conduct a hearing as set forth in Sections 62-31 and 62-32, which hearing may be conducted before the council rather than the city manager and may be held in conjunction with the second reading as postponed or continued.

(d)

The city council shall have the authority and discretion to require, in connection with the construction or acquisition of improvements within a district, any proponent of a district to provide audited financial statements, appraisals or other financial information. The council may further require a letter of credit or other financial pledge, guaranty or other security acceptable to the council for the purpose of ascertaining or ensuring the owners' ability to pay the assessments when due.

(e)

The finding, by ordinance or resolution of the council, that any improvements were duly authorized after notice duly given and after hearing duly held, when such notice and hearing are required; that a petition was presented and duly subscribed by all owners requisite to the formation of the district; and that otherwise there has been compliance with the standards of this article shall be conclusive of the facts so stated for all purposes.

(Code 1975, § 60-9; Ord. No. 1893, 8-14-89)

(a)

When the total or partial cost of any improvements can be reasonably ascertained, whether prior, during or subsequent to construction or acquisition, the city manager shall cause an assessment roll to be prepared which shall set forth:

(1)

The total cost or part thereof ascertained by the city manager.

(2)

The portion of such total cost or part thereof to be paid by the city or otherwise not to be assessed to property within the district.

(3)

The allocation of such total cost or part thereof among the properties subject to assessment, showing the amount of the assessment applicable to each parcel of property. Parcels of property may be described by any method reasonably calculated to apprise persons of the property to be assessed, including, without limitation, parcel identification numbers generated by the county for property tax purposes.

(b)

The total cost or any part thereof of improvements subject to assessment and inclusion in the assessment roll may include all direct and incidental costs, whether incurred or to be incurred, with respect to the creation and administration of the district, acquisition or construction of improvements, levying and collection of assessments, issuance of bonds and all other matters required or permitted by the ordinances and Charter or otherwise by applicable law or regulation. Such costs may include, for purposes of illustration and not limitation, costs of initiating and creating a district; publishing or posting notices; printing; conducting meetings and hearings; designing, constructing or acquiring improvements, including the cost of acquiring and condemning interests in property and easements and other property rights; relocation costs; contingencies and reserves; inspection, collection, issuing and securing bonds, including capitalized interest for such period as the city council may deem necessary or appropriate; capitalized bond reserves and credit enhancements; and costs of levying and collecting assessments, legal, engineering, appraisal, financial and other professional fees and expenses connected with any of such, including the costs of confirming, proving or defending the validity or objectives of any district, bond or assessment, administrative costs, equipment and other incidental costs.

(c)

Any costs for improvements included in the assessment roll shall not be limited by any estimates contained or presented in conjunction with any petition, communication, ordinance, resolution or other document or representation concerning such improvement.

(Code 1975, § 60-10; Ord. No. 1893, 8-14-89)

(a)

Unless excused pursuant to subsection (c) of this section, the city clerk shall give notice of hearing on the assessment roll by one publication, pursuant to Section 2-1, at least 15 consecutive days prior to the date of hearing. The city clerk shall also mail such notice by United States mail, postage prepaid, to the owners of land to be assessed for the costs of improvements situated within the district on or about the date of such publication; however, publication shall be deemed good and sufficient, and the failure of receipt of mailed notice shall not cause the hearing on assessment roll to be legally deficient. Ownerships shall be deemed properly determined if taken from the records of the county assessor within 30 days prior to such mailing.

(b)

The notice of hearing on the assessment roll shall include the following:

(1)

The assessment roll, as prepared by the city manager.

(2)

The date, time and place of the hearing.

(3)

A statement that all protests and objections to the assessment roll must be filed in writing with the city clerk at least three days prior to the date of hearing before the city council and that, unless timely filed, all protests and objections shall be conclusively deemed waived.

(c)

If an instrument is presented containing the signatures of all of the owners of land to be assessed, duly acknowledged, which contains a waiver of notice and hearing along with a stipulation that the total costs of the improvements identified in the assessment roll and the allocation of the costs among properties to be assessed and included in the district are consented to, the notice, publication and hearing on the assessment roll shall be waived if the council, in its discretion, determines the public interest would be served by such waiver.

(Code 1975, § 60-11; Ord. No. 1893, 8-14-89; Ord. No. 3392, § 19, 8-9-16; Ord. No. 3476, §§ 19, 7-10-18)

(a)

The city council shall conduct a public hearing pursuant to the notice published for the purpose of hearing protests and objections to the assessment roll and for the purpose of hearing evidence supporting the assessments, unless such hearing is waived.

(b)

All protests and objections to the assessment roll shall be in writing specifying the basis of the protest or objections claimed, shall describe the land owned by the submitting party (objector) affected by the assessment roll and shall be signed and acknowledged by the objector or signed by legal counsel representing an objector and filed with the city clerk at least three days prior to the scheduled hearing before the council, or such objections shall be conclusively deemed waived.

(c)

The city council may postpone or continue such hearing or relocate the hearing by announcing such postponement, continuance or relocation at the time and place originally set for the hearing or by then posting notice thereof. No further or additional notice shall be required.

(d)

Compliance with rules of evidence shall not be required in connection with the hearing on the assessment roll. The council may impose reasonable rules of conduct in connection with such hearing.

(Code 1975, § 60-12; Ord. No. 1893, 8-14-89)

(a)

Upon completion of the assessment roll hearing, and based upon the evidence and presentations made, the council shall consider an ordinance providing for the levy and collection of the assessments, which ordinance may confirm the assessment roll as originally proposed or may amend the assessment roll in furtherance of the findings of the council; provided, however, that no substantial increases shall be made unless the notice and hearing process set forth in Sections 62-36 and 62-37 is repeated with respect to such substantial increases or waived. Any increase in the amount of any assessment not exceeding five percent of the amount thereof as stated in the notice of assessment hearing shall be deemed insubstantial for purposes of this section.

(b)

As to any parcel of property for which no protest or objection was filed pursuant to Section 62-37, passage of the assessment ordinance shall conclusively establish special benefit at least equal to the amount of the assessment. As to any properties for which such protest or objection was filed, passage of the assessment ordinance shall constitute prima facie evidence of special benefit at least equal to the amount of the assessment and that the assessments have been made in accordance with applicable law.

(c)

In the event that the council determines that the assessments may be paid in installments, the terms of such payment shall be set forth in the assessment ordinance, including number, amounts, schedule of payment of the principal amount and interest thereon, the date from which interest will accrue, the location of payment and the discount, if any, for advance payment.

(d)

The council may direct that the assessment ordinance shall be filed by the city clerk with the county clerk and recorder's office.

(Code 1975, § 60-13; Ord. No. 1893, 8-14-89)

(a)

Except as may be otherwise provided with respect to property of the city, the state or other political subdivisions thereof or the United States or agencies or instrumentalities thereof, all assessments made pursuant to this article, together with all applicable interest, penalties for default and all costs of collecting the assessments, including reasonable legal fees incurred by the city, shall be and constitute, from the effective date of the assessment ordinance, a perpetual lien in the several amounts assessed or charged against each lot, tract or other parcel of property assessed, which lien shall continue until full and final payment and shall be superior to and have priority over all other liens and encumbrances, except general tax liens.

(b)

In the event that property is subdivided subsequent to the attachment of the assessment lien, such lien may, in the discretion of the council, be apportioned by the council on such basis as the council may determine to fairly and equitably allocate the burden of the lien among the subdivided parcels. The council may, in the assessment ordinance or in other proceedings relating to a district, provide for a method for such apportionment of liens or may provide that no such apportionments will be made.

(c)

No substantive or procedural irregularities in any act or proceeding, including delays and errors, whether mandatory or permissive, done pursuant to this article shall cause invalidity of or prejudice or detriment to any final assessment or assessment lien. Any such defect may be remedied by subsequent corrective measures, whether by subsequent filings, amending acts or proceedings, as the case may require, which remedy shall relate back to and become effective as of the date of the act or proceeding corrected.

(d)

The lien created by this section shall not be impaired by any failure or omission of or any error in any recording or filing procedures set forth at Section 62-38(d).

(Code 1975, § 60-14; Ord. No. 1893, 8-14-89)

Upon adoption of the assessment ordinance, the city manager shall cause to be prepared an assessment record, providing suitable reference, for each property assessed, which may be described in the same manner provided in Section 62-35 with respect to the assessment roll, to the total assessment and, if applicable, installments payable thereon in principal and interest. The assessment record shall also set forth all costs, penalties and other charges upon the assessed property which constitute a lien upon the property pursuant to Section 62-39. The assessment record shall be submitted to the finance director for collection.

(Code 1975, § 60-15; Ord. No. 1893, 8-14-89)

(a)

All assessments are due and payable without further notice or demand within 30 days after adoption of the assessment ordinance or such longer time as may be provided in the assessment ordinance. The council may, however, provide in the assessment ordinance that, at the election of the owner, the assessments may be paid in installments of principal with interest.

(b)

Payment of the assessment may be made to the finance director at any time within 30 days following adoption of the assessment ordinance or such longer time as may be provided in the assessment ordinance. If installment payments are permitted, failure to pay the whole assessment within the 30-day period shall constitute an election and waiver as set forth in Section 62-43(c). The finance director shall collect all payments made within such 30-day period. At the expiration of the 30-day period or at such other times as may be specified by the assessment ordinance, the finance director shall return the assessment record to the city manager, with an accounting of the amounts and dates of payment, if any. The city manager shall cause such assessment record to be delivered to the county treasurer or returned to the finance director for collection of the assessment.

(c)

If the assessment record is delivered to the county treasurer, all assessments, penalties, costs and other amounts constituting a lien pursuant to Section 62-39 shall be payable to and collected by the county treasurer, who shall remit such moneys to the finance director, all as provided by C.R.S. §§ 31-25-526 and 31-25-531, applicable at the time of collection, except to the extent otherwise provided in the assessment ordinance or by other applicable ordinance of the city. Additionally, the city shall have the authority to invoke the sale or to purchase the property on default of payment of any special assessment as set forth in C.R.S. §§ 31-25-531 and 31-25-532, in effect at the time of the exercise of such authority, except to the extent otherwise provided in the assessment ordinance or by other applicable ordinances of the city.

(d)

Upon failure to pay any installment, whether of principal or interest when due, or upon bankruptcy, insolvency, reorganization, receivership or other similar event with respect to the record owner, or upon such other events as may be specified as events of default in the assessment ordinance, the city may declare the whole of the unpaid principal and accrued interest to be due and collectible immediately upon such event, and the whole amount of the unpaid principal and accrued interest shall thereafter draw penalty interest at the rate established pursuant to the assessment ordinance, until the day of sale; but at any time prior to the day of sale, the owner may pay the amount of all unpaid installments, with interest at the penalty rate set by the assessing ordinance, and all penalties and costs of collection accrued, including legal fees incurred by the city, and shall thereupon be restored to the right thereafter to pay installments in the same manner as if default had not been suffered. Nothing in this article shall limit or restrict the city's power to specify in the assessment ordinance events of default relating to assessments or to pursue any remedy as to any such event of default which is contemplated by statute or by the assessment ordinance or which would otherwise be available to the city at law or inequity.

(e)

The owner of any property not in default as to any installment or payment may, at any time, pay the whole of the unpaid principal with interest accruing to such time as may be provided by the assessment ordinance.

(Code 1975, § 60-16; Ord. No. 1893, 8-14-89)

(a)

For the purpose of paying all or such portion of the cost of any improvement constructed or acquired pursuant to this article as may be assessed against the property specially benefited, special assessment bonds of the city may be issued, on such terms and in such form as may be prescribed by the city council, payable in a sufficient period of years after date of issuance to cover the period of payment provided for installments of assessments. Such bonds shall be payable out of all or a portion of the moneys collected from the assessments made for such improvements and may also be additionally secured as provided in Article XII of the Charter, as amended from time to time.

(b)

Special assessment bonds, with or without such additional security, shall not be subject to any debt limitation or encumber, restrict or exhaust the city's debt incurring power, nor shall such bonds be subject to the requirement of authorization at any election. Additionally, such bonds shall not constitute a prohibited pledge or lending of credit or donation, or operate to violate any constitutional, statutory or Charter limitation or restriction.

(Code 1975, § 60-17; Ord. No. 1893, 8-14-89)

(a)

No action or proceeding, at law or in equity, to review any acts or proceedings, or to question the validity or enjoin the performance of any act or the issue or collection of any bonds, or the levy or collection of any assessments, authorized by the Charter, or for any other relief against any acts or proceedings done or had under this article or of the city, with reference thereto, whether based upon irregularities or jurisdictional defects, shall be maintained, unless commenced within 30 days after the performance of the act or the effective date of the resolution or ordinance complained of, or else thereafter perpetually barred. No condition, disability or infirmity shall cause such response to be tolled, it being the intent of the city council to ensure the integrity of its securities issued to finance the construction and acquisition of improvements and of its other commitments in connection therewith.

(b)

If any final assessment is set aside for any reason whatsoever, the city council, upon such notice as required in the making of an original assessment or waiver thereof, may make a new assessment in accordance with the provisions of this article.

(c)

Failure to pay any assessment within the 30-day period provided in Section 62-42 shall conclusively be deemed an election on the part of all interested persons, whether under disability or otherwise, to pay in such installments. Additionally, such election shall conclusively operate to manifest a consent to the improvements, a waiver of any legal challenge to the authority or jurisdiction of the city to acquire or construct the improvements and approval of the quality of the work, the regularity or sufficiency of the proceedings and the validity and correctness of the assessments and lien thereof. Any interested person may preserve the right to contest an assessment by making payment under protest of the whole assessment, within the 30-day period prescribed by Section 62-41(a), to the finance director, or into the registry of any court having jurisdiction over such contest, or in such other manner as may be agreed between such person and the city or as may be ordered by such court.

(d)

All persons signing any petition pursuant to Section 62-29 shall conclusively be deemed to have waived any challenge to any actions taken by or on behalf of the city pursuant to such petition.

(e)

No defect in or invalidity of a petition shall constitute a basis to challenge any act or proceedings taken pursuant to this article, and such defect or invalidity shall not constitute a basis or grounds in support of any legal challenge.

(f)

Objections to any notice of hearing given pursuant to Section 62-31 shall be conclusively deemed waived unless perfected in the manner set forth in Section 62-32. Objections to the assessments or the lien thereof shall be conclusively deemed waived unless perfected in the manner set forth in Section 62-37.

(g)

Attendance by any person or by any representative of such person at any hearing held pursuant to this article shall conclusively be deemed to constitute a waiver of all challenges based on defects, errors or irregularities in the notice of such hearing or the manner in which it was given.

(Code 1975, § 60-18; Ord. No. 1893, 8-14-89)

(a)

If any assessment made or assessed upon property within a special improvement district, whether pursuant to this article as enacted or amended or by authority of the ordinances of the city relating to such districts repealed and superseded by this article, or any predecessors to this article, is void or unenforceable for any cause, including but not limited to an assessment which has been extinguished or eliminated by the foreclosure of any tax judgment or other lien or which has been adversely affected by bankruptcy, insolvency, reorganization, receivership or other similar events or by virtue of the operation of any state or federal laws or regulations, the city manager may order the making and issuing of a reassessment covering the deficiency so caused in the original assessment, which reassessment shall have priority over all other liens except general tax liens as contemplated at Section 62-39. Any such reassessment may be made upon all or any portion of the property with respect to which the original assessment is void or unenforceable.

(b)

The reassessment need not be in any prescribed form, but shall set forth a description of the property to be reassessed, which description may be made by any method reasonably calculated to apprise persons of the property to be reassessed, including, without limitation, parcel identification numbers generated by the county for property tax purposes; the original assessment as set forth in the assessment ordinance; and the amount to be reassessed against the property. In determining such amount, the city council may consider the outstanding principal amount of the original assessment, as well as the accrued interest, penalties and costs of collection, including legal fees incurred by the city, due and payable thereon. The reassessment shall be collectible, payable and enforced with the same lien priority as provided for the original assessment.

(c)

Passage of the reassessment ordinance shall be prima facie evidence of the fact that such reassessment has been lawfully made. The city council may direct that the reassessment ordinance be filed with the county clerk and recorder for recording on the records of each lot, tract or parcel of property reassessed, but the lien of the reassessment shall not be impaired by any failure or omission of or any error in any such filing or recording.

(Code 1975, § 60-19; Ord. No. 1893, 8-14-89)

(a)

The city manager and the city council may designate and utilize the services of such city officials and agents or private persons and entities as they may deem necessary or appropriate to carry out the purposes of this article.

(b)

Nothing in this article shall affect, limit or impair the power of the city to construct, exact or otherwise acquire public or local improvements by other law or legal authority, ordinance or Charter provision, and no other law or legal authority, ordinance or Charter provision shall affect, limit or impair the power of the city to construct or acquire local improvements pursuant to the authority of this article.

(c)

As used in this article, the term "benefited property" or words and phrases of similar import shall mean the property located within a district which derives special benefit from the subject improvements within the district.

(d)

This article shall apply to all special improvement districts, the creation of which are initiated after the effective date of this article. This article shall not apply to special improvement districts, the creation of which was initiated prior to the effective date of this article, except that the provisions of Section 62-44 with respect to reassessments shall apply to such districts. The city council finds and determines that the reassessment provisions of Section 62-44 are concerned with remedial matters as to which property owners have no reasonable expectation of any vested right or interest, and that the applicability of such provisions to special improvement districts, the creation of which was initiated prior to the effective date of this article, is therefore not detrimental or prejudicial to any owners of property assessed therein.

(e)

The city council may, in any ordinance adopted pursuant to this chapter, commit that the city will exercise or will not exercise, generally or in any particular manner, any right or power which would otherwise be permissive or within the discretion of the council or other city officers.

(Code 1975, § 60-20; Ord. No. 1893, 8-14-89)

The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Application fee means a non-refundable fee payable to the city by the initial developer for each category of infrastructure for which reimbursement is requested, which amount represents the reasonable costs incurred by the city in developing the reimbursement agreement. The application fee shall be as established in the fee resolution.

Collection fee means a fee the city collects from the connector and represents the reasonable costs incurred by the city in collecting and disbursing the funds as set forth herein. The collection fee shall be as established in the fee resolution.

Connection means a physical connection of any kind to the city infrastructure, except that connection of an existing property entrance to new street infrastructure constructed by an initial developer that is eligible for reimbursement shall not be considered a connection for the purposes of reimbursement until such time as the property use changes or improvements to the entrance are required as a result of development of the property as determined by the development engineering director.

Connector means a party seeking to connect to the city infrastructure and who benefits from the infrastructure constructed by an initial developer that is eligible for the reimbursement procedure set forth in this section under criteria established by the city.

Connector capacity means the capacity that the development engineering director, at his or her sole discretion, determines is required by the connector requesting connection to the infrastructure based on the typical demands as stated in the city's Standards and Specifications for the Design and Construction of Public Improvements as amended from time to time, the most current infrastructure master plans, and the final plat densities of the connecting properties.

Construction cost means all costs associated directly and solely with the design and construction of the infrastructure which includes the costs of engineering, surveying, and testing, cost of permits and cash in lieu payments, costs of any rights-of-way (ROW) or easement acquisitions necessary for construction of the infrastructure, and costs of reasonable and necessary construction change orders. Administrative costs, which will include costs incurred by the initial developer for construction management including bidding, home office overhead, attorney's fees and all other expenses other than those direct expenses identified herein, shall not exceed five percent of the total direct construction costs for the infrastructure, all as detailed in a sworn affidavit from the initial developer.

Drainage infrastructure includes, but is not limited to, collection system pipelines, inlets, box culverts, combination box culvert and pedestrian underpass, regional detention ponds, improved open channel conveyances and other appurtenances designed and constructed by the initial developer which are off site and, in the judgment of the development engineering director, are improvements that a connector would have been required to construct at the time of development of connector's property.

Inflation factor means the amount the construction cost shall be adjusted for inflation for building costs in the Denver, Colorado, metropolitan area from the base period to the month of collection as determined by reference to the Construction Cost Index (CCI) for Denver, Colorado, published in the Engineering News Record. The base period CCI shall be the CCI most recently published prior to or on the date of initial acceptance of a project eligible for reimbursement. The CCI at time of collection shall be the CCI most recently published prior to or on the date of collection. Construction cost shall be adjusted by utilizing the base period CCI and the CCI at time of collection. The calculation is as follows:

Inflation Factor = [CCI for date of collection]/[Base Period CCI]

Initial developer means the party constructing or contracting for construction of infrastructure required by the city to provide service to a development.

Property means lands which fall within the reimbursement agreement boundaries and which are owned or controlled by the subsequent connector which may include individual properties or subdivisions or as otherwise determined by the development engineering director.

Street infrastructure includes, but is not limited to, pavement, subbase, over excavation, backfill, soil stabilization, recompaction, right-of-way costs, curbs, gutters, medians, landscaping, sidewalks, pedestrian underpasses, combination pedestrian underpass and box culvert, traffic signals, street lighting, bus pads, deceleration lanes, and other appurtenances as determined by the development engineering director, which are designed and constructed by the initial developer in accordance with the city's most current infrastructure master plans and the Standards and Specifications, and which are adjacent to the property that would derive benefit from use of or connection to the street infrastructure upon development of the property.

Time of connection shall be when new infrastructure making a physical connection to the infrastructure receives initial acceptance from the city, or as otherwise determined by the development engineering director.

Total capacity means the total capacity of the infrastructure as solely determined by the development engineering director and detailed in the initial developer's reimbursement application and incorporated into the reimbursement agreement.

Wastewater infrastructure includes, but is not limited to, wastewater gravity systems, lift stations, force mains, and appurtenances designed and constructed by the initial developer which at the time of completion of construction by the initial developer could provide service to connectors. To qualify for reimbursement under this section, a lift station shall have been constructed to a capacity which the development engineering director determines is in excess of that reasonably required by the initial developer.

Water infrastructure includes but is not limited to water transmission and distribution lines, all other water lines and related appurtenances larger than eight inches in diameter, and pressure reducing valves and booster pump stations which are sized to a capacity which the development engineering director determines is in excess of that required by the initial developer. Notwithstanding the above, the cost of constructing a booster pump station shall not be eligible for reimbursement when the development engineering director requires that a booster pump station be constructed to a capacity which is the minimum required by the Standards and Specifications.

(Ord. No. 2922, § 1, 10-25-05; Ord. No. 3648, § 7, 4-11-23)

The total cost of design and construction of any infrastructure shall be the responsibility of the initial developer whose development necessitates the initial installation of the infrastructure as required by City Code. Construction cost or portions thereof may be recovered by the initial developer pursuant to the reimbursement procedure described in this section.

(Ord. No. 2922, § 1, 10-25-05)

The initial developer shall be reimbursed by connectors for water infrastructure construction cost, as modified by the inflation factor, on the following basis:

(1)

Water infrastructure constructed by the initial developer shall be eligible for reimbursement by connectors based on the ratio of the connector's linear front footage to the total linear footage of the infrastructure. If the connector's property is fronting or contiguous on only one side of the infrastructure, the connector shall pay 50 percent of the construction cost, as modified by the inflation factor, for that front footage. If the connector's property is fronting or contiguous on both sides of the infrastructure, the connector shall pay 100 percent of the construction cost, as modified by the inflation factor, for that front footage.

(2)

Water infrastructure shall be deemed to be contiguous to a connector's property where the water infrastructure is located within a public right-of-way or easement, which in turn abuts the connector's property, or where the water infrastructure crosses or touches any boundary of the connector's property, or which benefits the connector's property as determined by the development engineering director. Linear footage of the water infrastructure fronting a property shall be deemed to extend to the centerline of public rights-of-way or easement in which such water infrastructure may be located. The development engineering director shall have the authority to determine the appropriate contiguity in the event intervening tract(s) run adjacent to the water infrastructure.

(Ord. No. 2922, § 1, 10-25-05)

The initial developer shall be reimbursed by connectors for wastewater infrastructure construction cost, as modified by the inflation factor, on the following basis:

(1)

The reimbursement amount for a connector shall be calculated by prorating the wastewater infrastructure construction cost by the percentage of the capacity required for the connector's property to the total capacity of the infrastructure based on the overall flow for the basin being served by each section of infrastructure.

(2)

Limitations on reimbursement amounts.

a.

In the event that a connector desires to connect to wastewater infrastructure and it is determined by the development engineering director that the subdivision plat for the connecting property will require less capacity than projected in the initial developer's reimbursement agreement, then the construction cost to be reimbursed, as modified by the inflation factor, shall be adjusted based on the projected flows required by the connector's subdivision plat and not based on the initial developer's projected capacity. The reimbursement amounts for the remaining properties not yet connected will not be changed from the amounts shown in the reimbursement agreement as a result of this event.

b.

In the event that a connector desires to connect to wastewater infrastructure and it is determined by the development engineering director that the subdivision plat for the connecting property will require more capacity than projected in the initial developer's reimbursement agreement, then the connector shall reimburse the initial developer for the construction cost, as adjusted by the inflation factor, originally projected by the initial developer's reimbursement agreement and not a higher amount based on the revised capacity required by the subdivision plat for the connector's property at the time of connection.

(Ord. No. 2922, § 1, 10-25-05)

The initial developer shall be reimbursed by connectors for drainage infrastructure construction cost, as modified by the inflation factor. The reimbursable cost will be attributed entirely to the property in which the infrastructure eligible for reimbursement is situated. In the event the infrastructure is situated on more than one property, the cost shall be prorated between the properties as determined by the development engineering director.

(Ord. No. 2922, § 1, 10-25-05)

The initial developer shall be reimbursed by connectors for street infrastructure construction cost, as modified by the inflation factor, on the following basis:

(1)

Street infrastructure constructed by the initial developer per the transportation and mobility master plan to full width and in accordance with the city's Standards and Specifications, shall be eligible for reimbursement by connectors based on the ratio of the connector's linear front footage to the total linear footage of the infrastructure. If the connector's property is fronting or contiguous on only one side of the infrastructure, the connector shall reimburse 50 percent of the construction cost, as modified by the inflation factor, for that front footage. If the connector's property is fronting or contiguous on both sides of the infrastructure, the connector shall reimburse 100 percent of the construction cost, as modified by the inflation factor, for that front footage.

(2)

Street infrastructure shall be deemed to be contiguous to a connector's property where the street infrastructure is adjacent to the connector's property, or where the street infrastructure crosses or touches any boundary of the connector's property, or where the street infrastructure benefits the connector's property as determined by the development engineering director. Linear footage of the street infrastructure fronting a property shall be deemed to extend to the centerline of public rights-of-way in which such street infrastructure may be located. The development engineering director shall have the authority to determine the appropriate contiguity in the event intervening tract(s) run adjacent to the street infrastructure.

(Ord. No. 2922, § 1, 10-25-05; Ord. No. 3648, § 8, 4-11-23)

(a)

Application for reimbursement agreement. Upon approval of construction drawings by development engineering, the initial developer of any property who constructs infrastructure may file with the development engineering director an application for a reimbursement agreement. The complete application, or portions thereof, may be submitted; however, incomplete applications, as determined at the sole discretion of the development engineering director, will not be reviewed or acted upon by the city.

In order for the city to collect estimated reimbursement payments as described in [Section] 62-67(b) prior to the final execution of a reimbursement agreement, the initial developer shall submit at a minimum the items required in subsection (a)(1), (2), (3), (5), and (8) of this section. Upon submission of these items, provided they are acceptable to the city as described herein, the city will require connectors to pay estimated reimbursement amounts as specified in [Section] 62-67(b).

Notwithstanding the foregoing, the application for reimbursement agreement shall not be considered complete until all application requirements are submitted. Once the submitted application is determined complete and acceptable to the city, the city will provide the initial developer with a reimbursement agreement; however, the reimbursement agreement shall not be executed until after the time to file a request for an administrative hearing has expired and any administrative hearings which were requested are resolved.

The application shall include:

(1)

Payment of the non-refundable application fee.

(2)

An exhibit depicting the infrastructure suitable for inclusion in the reimbursement agreement as determined by the development engineering director.

(3)

Documentation, including an ownership map acceptable to the city, showing all the properties affected by the proposed reimbursement agreement, and any other documentation related to ownership as may be required by the development engineering director.

(4)

A list of the names, mailing addresses of the property owners and the tax ownership identification numbers for the properties within the boundaries of the proposed reimbursement agreement area, accompanied by a written ownership and encumbrance report from a title company or similar document acceptable to the development engineering director evidencing proof of ownership of all property subject to the reimbursement agreement.

(5)

A report acceptable to the city detailing the actual construction cost and the resulting reimbursement amount proposed to be collected from each property and calculations substantiating the amounts. The initial developer may submit an estimated construction cost prior to taking bids so that the city may collect estimated reimbursement amounts from connectors pursuant to [Section] 62-67(b). In this event, the initial developer shall submit a revised report that details the estimated construction cost, the actual construction cost, and calculations modifying the reimbursement amount for each property to reflect the actual construction cost. Estimated and actual costs shall be based on infrastructure designed to meet the current versions of the city's Standards and Specifications, the city's current infrastructure master plans, or based on other design requirements as otherwise determined by the development engineering director.

(6)

The initial developer shall obtain and submit a minimum of three independent construction bids for the infrastructure. The bids shall include an itemized unit price schedule of values that provides cost break down into the units needed to clearly cost each and every item for each property included in the proposed reimbursement agreement. If any post bid change orders are proposed for inclusion in the reimbursable amount, the change order cost shall be based on the itemized unit prices contained in the bid whenever possible, or when itemized unit prices are not available, the change order amount shall be based on reasonable construction costs, the reasonableness thereof as determined at the sole discretion of the development engineering director. Complete documentation of all post bid change orders shall be submitted with the application. Regardless of which contractor is selected by the initial developer to construct the infrastructure, the initial developer shall use the lowest responsible bidder's itemized unit price schedule of values to calculate the reimbursable amounts for each property.

Notwithstanding the above, if the initial developer is unable to obtain three independent construction bids as required, the initial developer may make a request of the city's contract manager to waive the requirement. In this event, the initial developer shall provide documentation to the contract manager of the extenuating circumstances that precluded obtaining three independent bids. The contract manager shall have the sole discretion to determine if the documentation of the extenuating circumstances is sufficient to waive the requirement for three independent bids.

(7)

A notarized affidavit from the initial developer attesting to the construction cost and to the fact that the work was bid to at least three independent contractors. The affidavit shall be supported with complete documentation, including copies of all vendor, consultant and contactor bids, proposals, invoices and other relevant documents to support the validity of the construction cost. In the event the requirement for three independent bids was waived by the city's contract manager, the affidavit will describe the bidding process that was used. The initial developer shall attest that all information contained in the application for reimbursement agreement is true and correct.

(8)

Exhibits of a size and scale suitable for use in the reimbursement agreement as determined by the development engineering director that clearly define the reimbursement boundaries proposed for the infrastructure, and the associated construction cost and reimbursement amount applicable to each property.

(9)

Draft copies of the notice required in subsection (b) below to be sent to each property owner.

As a condition prior to the city's execution of a reimbursement agreement, the initial developer shall supplement his application by submitting documentation acceptable to the development engineering director that provides as follows:

a.

Final copies of the notice sent to each property owner.

b.

All infrastructure for which reimbursement of construction costs are requested fully conforms to the city's Standards and Specifications for the Design and Construction of Public Improvements.

c.

That the infrastructure has been granted initial acceptance by the city.

d.

That the initial developer has otherwise fully complied with all other city ordinances or regulations pertaining to the development of public improvements and/or the initial developer's property.

(b)

Notice. The initial developer shall send by first class U.S. mail a notice to each of the owners of each property that is situated within the proposed reimbursement area boundary, together with a copy of the proposed reimbursement agreement and a copy of this City Code section.

The notice shall state that any owner of affected property located within the city may file a written request with the city manager, or designee thereof, for an administrative hearing to object to the proposed reimbursement agreement. The notice shall advise the property owners that the request for hearing shall include the following requirements:

(1)

Hearing request shall state in general terms the grounds of objection.

(2)

Hearing request must be filed within 15 days of the date of the receipt of the notice. Failure by any property owner to file a timely request (within 15 days) for a hearing constitutes a waiver by the owner of any right to such a hearing.

(c)

Administrative hearing. Upon receiving a timely written request for a hearing, the city manager, or designee thereof, shall set a hearing date and notify the initial developer and all owners of affected property within the city of the date, time, and location of the hearing. The city manager, or designee thereof, shall conduct an administrative hearing on the matter. The burden of proof to establish that the request for reimbursement for construction cost is reasonable and necessary shall be on the initial developer. If the initial developer establishes that the request for reimbursement is reasonable and necessary, the burden of proof to establish disqualification for reimbursement shall shift to the property owner. In the event multiple timely requests for hearing are submitted, such hearings may be consolidated into one hearing at the discretion of the city manager, or designee thereof.

Prior to the city scheduling the hearing, the initial developer shall pay to the city the city's estimated cost of conducting the hearing. The initial developer shall remit such payment to the city within ten days from the date notification of the estimated cost is sent to the initial developer. If the initial developer fails to remit the estimated hearing cost within the ten day timeframe, the initial developer forfeits his right to argue the reasonableness of the reimbursement to the objecting property owner and that owner's property will be exempt from the reimbursement agreement. The initial developer will be required to remit to the city the difference between the actual hearing cost and the estimated hearing cost within ten days of notification by the city of the actual hearing cost. The city will refund any overpayment should the actual hearing cost be less than the estimated hearing cost.

If the initial developer prevails and the proposed terms of the reimbursement agreement are substantially upheld, as determined by the development engineering director, the cost of the hearing will be added to the reimbursement amount for the property owner requesting the hearing.

Following the hearing, the city manager, or designee thereof, shall render a written decision and provide copies of the decision to all parties. The decision is subject to judicial review pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure.

(d)

Administrative denial. The city manager, or designee thereof, may, without notice or hearing to any other property owner, deny any reimbursement agreement application that does not fully comply with the requirements of this section. The application may also be returned to the applicant for corrections if the city manager, or designee thereof, determines that to be an appropriate action.

(e)

Audit. The city or its designated representative, at the city's sole option, may audit the records of the initial developer pertaining to construction cost at any reasonable time during normal business hours.

(Ord. No. 2922, § 1, 10-25-05; Ord. No. 3648, § 9, 4-11-23)

(a)

No service without payment of reimbursement amounts. No property will be permitted to connect to infrastructure constructed pursuant to this section or to any other part of the city's infrastructure until the obligations associated with such property under any reimbursement agreements have been paid in full.

(b)

Payment of estimated reimbursement amounts plus the collection fee by the connector to the city. Provided the initial developer has submitted sufficient documentation required by [Section] 62-66(a) for a reimbursement agreement, even though the reimbursement agreement is not yet executed, the city will require connectors to make payment to the city in an amount estimated by the development engineering director to be the connector's obligation under any pending reimbursement agreement. The amount paid by the connector will be adjusted to reflect the actual amount due under any such reimbursement agreement once the reimbursement agreement is executed. The connector shall pay any additional monies due if the funds being held by the city prove to be less than the actual amount due. The connector will receive a refund of any monies paid in excess of the actual amounts due. Once the reimbursement agreement is executed and the actual amount due is determined and collected from the connector, the city will remit the reimbursement amount to the initial developer as required by this section. In the event the initial developer does not receive a reimbursement agreement in accordance with these provisions, the reimbursement amount held by the city, less applicable administrative costs, will then be returned to the connector.

(c)

Payment of reimbursement amounts plus the collection fee by the connector to the city. Connector shall pay the entire reimbursement amount, as modified by the inflation factor, plus the collection fee, applicable to the entire property which is subject to a reimbursement agreement regardless of whether the property is subdivided. Payment shall be made upon execution of the developer's agreement or at time of connection, whichever occurs sooner. However, if prior to payment of the reimbursement amount and collection fee, the property owner has subdivided the property and sold a portion or portions to other owners, the connector shall be required to pay only their pro rata reimbursement amount and collection fee for their entire remaining property as determined by the development engineering director. Notwithstanding the foregoing, payment by individual residential lots is not allowed unless the individual lot was existing and occupied but not connected to the infrastructure at the time the reimbursement agreement was executed. Refunds or credits of reimbursement amounts will not be made as a result of reducing the number of lots in a subdivision plat.

(d)

Reimbursement of collections to initial developer. Within 60 days of receipt of a reimbursement payment from a connector, the city will remit the reimbursement to the initial developer; however, the city will have the option to retain funds due any initial developer that is in arrears to the city or for non-compliance with City Code or other agreements, as determined by the development engineering director.

(e)

Notice of collection to initial developer. The city will send the reimbursement amounts collected from connectors via U.S. mail to the last known address of the initial developer. It shall be the responsibility of the initial developer to notify the city of any change of address or business name. If the reimbursement is returned as undeliverable to the city, and if the city is unable to locate the initial developer by reasonable means, the city will place a public notice regarding the collection of the reimbursement amount in a publication in general circulation in the county where the infrastructure subject to reimbursement is located for a period of two consecutive weeks. The initial developer shall have 90 days following the publication of the second public notice to request in writing the proceeds of the collection and to notify the city of the initial developer's current name and address. If the initial developer fails to timely respond to the public notice, the reimbursement payment, less the collection fee, will be returned to the connector, except as provided in [Section] 62-67(h). Further, the reimbursement agreement shall then become null and void from that point forward, except for provisions in [Section] 62-67(d) and [Section] 62-67(h), and the city shall have no further obligation to the initial developer with regard to the reimbursement agreement.

(f)

Time limitation. There shall be no collection of reimbursement payments by the city on or after the expiration of 15 years from the date of initial acceptance of the water, wastewater, or drainage infrastructure eligible for reimbursement. There shall be no collections of reimbursement payments by the city on or after the expiration of ten years from the date of initial acceptance of the street infrastructure eligible for reimbursement. Connectors shall similarly have no obligation to make reimbursement payments on or after the expiration of said periods.

(g)

No reservation of capacity. The city will not reserve capacity in any infrastructure for any connector. Available capacity will be allocated based on a "first come, first served" basis. In the event the capacity of the infrastructure is fully allocated and one or more properties is not allowed to connect to the infrastructure covered under a reimbursement agreement, then the property is relieved of the obligation to make reimbursement under the reimbursement agreement.

(h)

In the event that final acceptance of any of the infrastructure is not obtained by the initial developer as required by the Standards and Specifications or other city ordinances or codes, then the initial developer's right to reimbursement shall terminate and the city may collect any reimbursement funds due from connectors and expend them to secure final acceptance. Any unexpended reimbursement funds shall be returned to the connector(s) on a proportionate basis as determined by the development engineering manager. In addition, the reimbursement agreement shall be considered null and void.

(Ord. No. 2922, § 1, 10-25-05; Ord. No. 3648, § 10, 4-11-23)

In the event that the city deems the application for a reimbursement agreement complete, the city manager, or designee thereof, shall execute a reimbursement agreement with the initial developer for collection and payment of the reimbursable amount. The following provisions shall be incorporated by reference into the reimbursement agreement.

(1)

The city specifically will not guarantee collection of any portion of the reimbursable amount. Nothing in Sections 62-60 through 62-69 shall be deemed or construed to be a pledge of the city's faith and credit in facilitating the equitable apportionment of the construction cost of the infrastructure.

(2)

It shall be the initial developer's obligation to be aware of the city's publicly conducted development approval process, and to timely apply for a reimbursement agreement. Notwithstanding the above, the initial developer acknowledges that in the event he does not submit a complete and correct application for reimbursement agreement within 120 days of initial acceptance of the infrastructure or within 120 days of the adoption of this section, whichever is later, he will be forever barred from making such application and shall not be eligible for reimbursement.

(3)

The initial developer shall defend and indemnify the city for, and hold the city harmless from, any suit, claim, or action that is or may be brought by any person against the city as a result of the reimbursement agreement entered into pursuant to this section. In the event the city incurs costs as the result of any litigation or dispute in administering this agreement, the initial developer shall reimburse the city for these costs within ten days of the city sending notification thereof. In the event the initial developer fails to reimburse these costs upon written request by the city Attorney, the city will have no further obligations to the initial developer and any reimbursement agreements with the initial developer will be considered terminated. Notwithstanding the foregoing, the city is not limited to these remedies.

(4)

In the event a court invalidates the reimbursement agreement, the city will have no further obligations to the initial developer and the reimbursement agreement with the initial developer will be considered terminated unless the court order provides otherwise. If the initial developer has received reimbursement payments under a reimbursement agreement that a court invalidates, then the initial developer shall return the reimbursement funds, plus the applicable collection fee paid by the connector, to the connector unless the court order provides otherwise. In this event the city will not be obligated to refund the application fee to the initial developer, or to refund the collection fee to either the initial developer or the connector.

(5)

The agreement is personal to the initial developer and may not be assigned except upon written approval of the contract manager.

(6)

The initial developer shall cooperate with the city in the implementation of the agreement including, but not limited to, providing such information as the city may deem necessary to perform its functions under the agreement.

(7)

Failure of the initial developer to comply with any of the material provisions of the reimbursement agreement shall constitute abandonment of all rights to reimbursement.

(8)

Limitations on reimbursement amounts.

a.

In no case will the initial developer be entitled to reimbursement in excess of the amount of the total construction cost, as adjusted by the inflation factor, less the construction cost required to provide capacity needed to serve the initial developer's property. Upon the initial developer receiving reimbursement amounts totaling the amount of the construction cost, as adjusted by the inflation factor, less the construction cost of the capacity needed to serve the initial developer's property, no additional reimbursement amounts will be collected from future connectors.

b.

In the event the original reimbursement agreement area boundaries as described in the reimbursement agreement are altered by subsequent changes in topography, the installation of unanticipated infrastructure, or any other event which alters the provision of infrastructure from that which was anticipated at the time the initial developer constructed the infrastructure, then the city shall so notify the initial developer in writing. The initial developer shall not receive reimbursement from the areas so altered within the reimbursement agreement boundaries. Connectors shall not be required to reimburse the initial developer in such previously unanticipated instances of deletions or additions to the original reimbursement agreement boundaries. All areas which remain within the original boundaries after such additions or deletions will be required to reimburse the initial developer as outlined in the reimbursement agreement except as noted in Sections 62-63(2)a or 62-63(2)b.

c.

Adjustments as described above shall only be made in conjunction with the final plat for subsequent connectors' properties. No other adjustments will be allowed to reimbursement amounts or areas once a connection is made.

(Ord. No. 2922, § 1, 10-25-05)

(a)

Nothing in Sections 62-60 to 62-69 shall be construed so as to impair any contractual obligations existing under utility extension policy contracts executed prior to the effective date of this section.

(b)

Applications for reimbursement agreements submitted prior to the effective date of this section but not yet fully executed shall be governed by the section in effect as of the date of application.

(Ord. No. 2922, § 1, 10-25-05)