Common use of Performance Guarantee Clause in Contracts

Performance Guarantee. The Developer shall furnish the City in a form and substance acceptable to the City, an Irrevocable Letter of Credit, or other security deemed acceptable by the City (the “Performance Guarantee”), in an amount not less than one hundred fifteen percent (115%) of the total estimated cost of the improvements, as certified to the City by the Developer and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the final plat in the real estate records of ▇▇▇▇▇▇▇ County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer’s expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the final plat by the Town is contingent upon the Developer’s provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town's approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, overlot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town’s Director of Engineering/Public Works, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Engineering/Public Works’ estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town’s Director of Engineering/Public Works, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of construction and installation of the Public Improvements, to be held by the Town during the two-year warranty period. If the Public Improvements are not completed within the required time, the monies may be used to complete the improvements. Nuisance Conditions. The Developer agrees to prevent the existence of any nuisances by way of its construction activities, as certified to nuisances are defined by Title 6 of the City by ▇▇▇▇▇▇ Municipal Code, and as referenced in Title 11 of the ▇▇▇▇▇▇ Municipal Code. In the event the authorized inspector/designated Town authority determines that a nuisance exists, the Developer and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms provisions set forth in ▇▇▇▇▇▇ Municipal Code Sections 11.12.040 and conditions: a. The Developer providing 11.12.050, regarding the Performance Guarantee shall have no direct abatement of nuisances and the cost assessed for the abatement thereof. In addition to the provisions above, if the nuisance is not abated or indirect ownership or managerial control over an abatement plan is not submitted to the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance satisfaction of the Improvements Town, the Performance Guarantee should expire or Town may, upon thirty (30) days’ notice under this Agreement, exercise the entity issuing right to draw upon the Performance Guarantee becomes non- qualifying, or performance guarantee specified in paragraph 12 of this Agreement. The Town may draw on the performance guarantee in order to pay the cost of improvements construction is reasonably determined abating the nuisance, including any expenses and penalties incurred under the ▇▇▇▇▇▇ Municipal Code. The Town may exercise this right in addition to, or in lieu of, the withholding of permits and/or the withholding of certificates of occupancy. The right to draw on the performance guarantee shall be subject to the sole discretion of the Town, provided the Developer has received thirty (30) days' notice, as provided herein. The Town Planning Department and the Department of Engineering/Public Works shall be authorized to cease processing any land use or permit applications submitted by the City to same developer for the property that is contained within the same Planned Unit Development, until the nuisance is abated. This shall include, but not be greater than the amount limited to, acceptance of the security providedapplications, then the City shall furnish the Developer with written notice of such conditionsending referrals, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guaranteescheduling meetings or hearings, or augment the deficient security to achieve one hundred fifteen percent (115%) conducting reviews of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewithprojects. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.

Performance Guarantee. The Developer shall furnish the City Town in a form and substance acceptable to the CityTown, an Irrevocable Letter of Credit, or other security deemed acceptable by the City Town Attorney (the #1150795 v3 “Performance Guarantee”), in an amount not less than one hundred fifteen twenty-five percent (115125%) of the total estimated cost of the improvementsImprovements, as certified to the City Town by the Developer Developer’s Engineer and as accepted by the City Town and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City Town acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the estimated cost of improvements construction of the Improvements is reasonably determined by the City Town to be greater than the amount of the security provided, then the City Town shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City Town with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen twenty-five percent (115125%) of the cost of improvements Improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City Town pending compliance herewith. c. b. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the final plat in the real estate records of Douglas County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer’s expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the final plat by the Town is contingent upon the Developer’s provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town’s approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, overlot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town’s Director of Engineering/Public Works, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Engineering/Public Works’ estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in Paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by Paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town’s Director of Engineering/Public Works, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of the improvements, as certified to the City by the Developer construction and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensedPublic Improvements, to be held by the extent such licensing is requiredTown during the two-year warranty period. If the Public Improvements are not completed within the required time, before any work on the Improvements is commencedmonies may be used to complete the improvements.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the final plat in the real estate records of ▇▇▇▇▇▇▇ County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer's expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the final plat by the Town is contingent upon the Developer's provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town's approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, overlot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town's Director of Engineering/Public Works, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Engineering/Public Works' estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in Paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by Paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town's Director of Engineering/Public Works, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of the improvements, as certified to the City by the Developer construction and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensedPublic Improvements, to be held by the extent such licensing is requiredTown during the two-year warranty period. If the Public Improvements are not completed within the required time, before any work on the Improvements is commencedmonies may be used to complete the improvements.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the final plat in the real estate records of ▇▇▇▇▇▇▇ County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer's expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the final plat by the Town is contingent upon the Developer's provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town's approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, overlot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town's Director of Engineering, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Engineering’s estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town Director of Engineering, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of the improvements, as certified to the City by the Developer construction and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensedPublic Improvements, to be held by the extent such licensing is requiredTown during the two-year warranty period. If the Public Improvements are not completed within the required time, before any work on the Improvements is commencedmonies may be used to complete the improvements.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements above-described for which the Developer is responsible, the Developer shall, prior to recording the final plat in the real estate records of Gilpin County, which recording shall occur no later than ninety (90) ▇▇▇▇ ▇fter the execution of this Agreement, furnish the City, at the Developer's expense, with an irrevocable letter of credit in which the City is designated as beneficiary, to secure the performance and completion of the Public Improvements, or the City may accept at its sole discretion some other form of security from the Developer in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed as set forth in Exhibit C. The Developer agrees that approval of the final plat by the City is contingent upon the Developer's provision of an irrevocable letter of credit to the City within ninety (90) days of the execution of this Agreement in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the City in the manner provided herein shall negate the City's approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the City Attorney. The Developer shall furnish not start any construction of any public or private improvement on the Property including, but not limited to, staking, earth work, overlot grading, or the erection of any structure, temporary or otherwise, until the City in a form has received and substance acceptable approved the irrevocable letter of credit; provided, however, this requirement shall not apply to the issuance of a bench excavation permit which is governed by City of Black Hawk ordinance. The City shall not issue a foundation excavation permit for the Property until such time as a CLOMR is issued for the Property. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the City's Director of Public Works, and where appropriate the Manager of the District, as set forth in Exhibit C. If, however, they are unable to agree, the Director of Public Works' estimate shall govern after giving consideration to information provided by the Developer including, but not limited to, construction contracts and engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the accuracy of these estimates, and the Developer agrees to pay the Actual Costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in future. Accordingly, the City reserves the right to review and adjust the cost estimate on an Irrevocable Letter annual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index as published by the Engineering News Record. If the City adjusts the cost estimated for the Public Improvements, the City shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of Creditsaid written notice, provide the City with a new or other amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the City with a new or amended letter of credit, the City may exercise the remedies provided for in paragraph 5 of this Agreement; provided, however, that prior to increasing the amount of additional security deemed acceptable required, the City shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 8 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the City may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the City may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements as the City deems appropriate. Upon completion or performance of such improvements, conditions, and requirements within the required time, and the approval of the Director of Public Works, ninety percent (90%) of the estimated costs of construction shall be released to the Developer within ten (10) days of acceptance by the City provided, however, the City shall retain through the one (the “Performance Guarantee”), in an amount not less than one hundred fifteen 1) year warranty period at least twenty percent (11520%) of the total estimated cost construction costs of the improvements, as certified to the City by the Developer and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance GuaranteePublic Improvements. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the Final Plat in the real estate records of ▇▇▇▇▇▇▇ County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer's expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the Final Plat by the Town is contingent upon the Developer's provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town's approval of the Final Plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, over lot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town's Director of Public Works, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Public Works' estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town Public Works Director, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of the improvements, as certified to the City by the Developer construction and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensedPublic Improvements, to be held by the extent such licensing is requiredTown during the two- year warranty period. If the Public Improvements are not completed within the required time, before any work on the Improvements is commencedmonies may be used to complete the improvements.

Performance Guarantee. The Before commencement of construction under the Development Plan or Subdivision Plat, as approved, and the Building Permit, if issued, the Developer shall furnish the City with an effective Performance Guarantee in a form and substance acceptable to the City, an Irrevocable Letter amount of Credit, or other security deemed acceptable by the City (the “Performance Guarantee”), in an amount not less than one hundred fifteen percent (115%) 125% of the total estimated cost of the improvementsRequired Improvements, as certified shown on Exhibit B. The total estimated cost of the Required Improvements, including both labor and materials, is $383,147.66; however, that also accounts for a private street which will not be owned by the City. Therefore, the Performance Guarantee must be in an amount equal to $383,147.66. 5.7.1 The Performance Guarantee must provide for payment to the City by upon demand, based upon the City’s written certified statement that the Developer and has failed to construct, install, maintain, or repair, as accepted required by the City and as set forth in Exhibit B which have not been completed as this Agreement, any of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions:Required Improvements. a. 5.7.2 The Developer providing shall extend or replace the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. at least thirty days prior to its expiration. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire expires, or the entity issuing the Performance Guarantee becomes non- non-qualifying, or the City reasonably determines that the cost of improvements construction the Required Improvements is reasonably determined by the City to be greater than the amount of the security providedPerformance Guarantee, then the City shall furnish give written notice to the Developer with written notice of such conditionthe deficiency, and within fifteen (15) thirty days of receipt of such notice notice, the Developer shall provide the City with an increased or substituted Performance Guarantee that meets the requirements of this paragraph 5.7 and the Land Use Code. 5.7.3 Upon completion of portions of the Required Improvements (“Completed Improvements”), the Developer may apply to the City for a substituted qualifying release of part of the Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) . Any such application must include submittal of as-built drawings and a detailed cost breakdown of the Completed Improvements. Upon the City Engineer’s inspection and written approval of the Completed Improvements in accordance with paragraph 5.9 below, the City Council may authorize a release of the Performance Guarantee in the amount of 75% of the documented cost of improvements completion. If such the Completed Improvements. 5.7.4 Upon the City Engineer’s inspection and written approval of all Required Improvements in accordance with paragraph 5.9 below, the City Council shall authorize a release of the Performance Guarantee is not timely furnishedin the amount of 90% of the total estimated cost of all Required Improvements, then development activities including but not limited as shown on Exhibit B. 5.7.5 Upon the expiration of both the Public Improvements Warranty Period and the Other Required Improvements Warranty Period described in paragraph 5.9 below, the Developer’s correction of all defects discovered during such periods, and the City’s final acceptance of the Public Improvements in accordance with paragraph 5.9 below, the City Council shall authorize a full release of the Performance Guarantee. 5.7.6 Failure to provide or maintain the Performance Guarantee in compliance with this paragraph 5.5 will constitute an event of default by the Developer under this Agreement. Such default will be subject to the issuance remedies, terms, and conditions listed in Section 8 below, including without limitation the City’s suspension of building permits all activities, approvals, and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, permitting related to the extent such licensing is required, before any work on the Improvements is commenced.Subdivision Plats or Development Plan. 00152076-5

Performance Guarantee. In order to secure the construction and installation of the Public Improvements above-described for which the Developer is responsible, the Developer shall, prior to recording the final plat in the real estate records of Gilpin County, which recording shall occur no later than Decembe▇ ▇, ▇998, furnish the City, at the Developer's expense, with an irrevocable letter of credit in which the City is designated as beneficiary, to secure the performance and completion of the Public Improvements, or the City may accept at its sole discretion some other form of security from the Developer in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed as set forth in Exhibit C. The Developer agrees that approval of the final plat by the City is contingent upon the Developer's provision of an irrevocable letter of credit to the City no later than December 1, 1998, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the City in the manner provided herein shall negate the City's approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the City Attorney. The Developer shall furnish not start any construction of any public or private improvement on the Property including, but not limited to, staking, earth work, overlot grading, or the erection of any structure, temporary or otherwise, until the City in a form has received and substance acceptable approved the irrevocable letter of credit; provided, however, this requirement shall not apply to the issuance of a bench excavation permit which is governed by City of Black Hawk ordinance. The City shall not issue a foundation excavation permit for the Property until such time as a CLOMR is issued for the Property. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the City's Director of Public Works, and where appropriate the Manager of the District, as set forth in Exhibit C. If, however, they are unable to agree, the Director of Public Works' estimate shall govern after giving consideration to information provided by the Developer including, but not limited to, construction contracts and engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the accuracy of these estimates, and the Developer agrees to pay the Actual Costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in future. Accordingly, the City reserves the right to review and adjust the cost estimate on an Irrevocable Letter annual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index as published by the Engineering News Record. If the City adjusts the cost estimated for the Public Improvements, the City shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of Creditsaid written notice, provide the City with a new or other amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the City with a new or amended letter of credit, the City may exercise the remedies provided for in paragraph 5 of this Agreement; provided, however, that prior to increasing the amount of additional security deemed acceptable required, the City shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 8 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the City may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the City may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements as the City deems appropriate. Upon completion or performance of such improvements, conditions, and requirements within the required time, and the approval of the Director of Public Works, ninety percent (90%) of the estimated costs of construction shall be released to the Developer within ten (10) days of acceptance by the City provided, however, the City shall retain through the one (the “Performance Guarantee”), in an amount not less than one hundred fifteen 1) year warranty period at least twenty percent (11520%) of the total estimated cost construction costs of the improvements, as certified to the City by the Developer and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance GuaranteePublic Improvements. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.

Performance Guarantee. The Developer shall furnish the City in a form and substance acceptable to the City, an Irrevocable Letter of Credita performance warranty, or other security deemed acceptable by the City (the “Performance Guarantee”), in an amount not less than one hundred fifteen percent (115%) of the total estimated cost of the improvements, as certified to the City by the Developer and as accepted by the City and as set forth in Exhibit B C which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. D. The Performance Guaranty Guarantee shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements Improvements, the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the final plat in the real estate records of Douglas County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer’s expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the final plat by the Town is contingent upon the Developer’s provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town’s approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, overlot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town’s Director of Engineering/Public Works, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Engineering/Public Works’ estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in Paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by Paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town’s Director of Engineering/Public Works, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of the improvements, as certified to the City by the Developer construction and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensedPublic Improvements, to be held by the extent Town during the two-year warranty period. If, at the conclusion of the warranty period, the Developer does not remedy any defects in the Public Improvements as identified by the Town’s Director of Engineering/Public Works, including items included in a punch list, the monies may be used to fix any such licensing is required, before any work on identified defects in the Improvements is commencedPublic Improvements.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements, the Developer shall, prior to recording the Final Plat in the real estate records of ▇▇▇▇▇▇▇ County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the Town, at the Developer's expense, with the performance guarantee described herein. The performance guarantee provided by the Developer shall be an irrevocable letter of credit in which the Town is designated as beneficiary in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed, as set forth in Exhibit C, to secure the performance and completion of the Public Improvements. The Developer agrees that approval of the Final Plat by the Town is contingent upon the Developer's provision of an irrevocable letter of credit to the Town within ninety (90) days of the execution of this Agreement, in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the Town, in the manner provided herein, shall negate the Town's approval of the Final Plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the Town Attorney. The Developer shall furnish not start the City construction of any public or private improvement on the Property, including, but not limited to, staking, earth work, over lot grading or the erection of any structure, temporary or otherwise, until the Town has received and approved the irrevocable letter of credit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the Town's Director of Public Works, as set forth in a form Exhibit C. If, however, they are unable to agree, the Director of Public Works' estimate shall govern after giving consideration to information provided by the Developer, including, but not limited to, construction contracts and substance acceptable engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the Cityaccuracy of these estimates and the Developer agrees to pay the actual costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the Town reserves the right to review and adjust the cost estimates on an Irrevocable Letter of Creditannual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index, or other security deemed acceptable as published by the City Engineering News Record. If the Town adjusts the cost estimate for the Public Improvements, the Town shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)Town with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the Town with a new or amended letter of credit, the Town may exercise the remedies provided for in paragraph 6 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the Town shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 9 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the Town may draw on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the Town may draw on the letter of credit and either hold such funds as security for performance of this Agreement or spend such funds to finish the Public Improvements or correct problems with the Public Improvements, as the Town deems appropriate. Upon completion of performance of such improvements, conditions and requirements within the required time and the approval of the Town Public Works Director, the Developer shall issue an irrevocable letter of credit to the Town in the amount not less than one hundred fifteen of twenty percent (11520%) of the total estimated cost of the improvements, as certified to the City by the Developer construction and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance Guarantee. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensedPublic Improvements, to be held by the extent such licensing is requiredTown during the two-year warranty period. If the Public Improvements are not completed within the required time, before any work on the Improvements is commencedmonies may be used to complete the improvements.

Performance Guarantee. In order to secure the construction and installation of the Public Improvements above-described for which the Developer is responsible, the Developer shall, prior to recording the final plat in the real estate records of ▇▇▇▇▇▇ County, which recording shall occur no later than ninety (90) days after the execution of this Agreement, furnish the City, at the Developer's expense, with an irrevocable letter of credit in which the City is designated as beneficiary, to secure the performance and completion of the Public Improvements, or the City may accept at its sole discretion some other form of security from the Developer in an amount equal to one hundred ten percent (110%) of the estimated costs of the Public Improvements to be constructed and installed as set forth in Exhibit C which are estimated costs which may be increased at such time as the Director of Public Works approves the construction documents for the Public Improvements. The Developer agrees that approval of the final plat by the City is contingent upon the Developer's provision of an irrevocable letter of credit to the City within ninety (90) days of the execution of this Agreement in the amount and form provided herein. Failure of the Developer to provide an irrevocable letter of credit to the City in the manner provided herein shall negate the City's approval of the final plat. Letters of credit shall be substantially in the form and content set forth in Exhibit D, attached hereto and incorporated herein, and shall be subject to the review and approval of the City Attorney. The Developer shall furnish not start any construction of any public or private improvement on the Property including, but not limited to, staking, earth work, overlot grading, or the erection of any structure, temporary or otherwise, until the City in has received and approved the irrevocable letter of credit, except pursuant to a form and substance acceptable to the City, an Irrevocable Letter of Credit, or other security deemed acceptable bench excavation permit duly issued by the City upon satisfaction of all City requirements for the issuance of a bench excavation permit and the posting of an irrevocable letter of credit for a bench excavation permit. The estimated costs of the Public Improvements shall be a figure mutually agreed upon by the Developer and the City's Director of Public Works based upon the construction documents for the Public Improvements as approved by the Public Works Director. If, however, they are unable to agree, the Director of Public Works' estimate shall govern after giving consideration to information provided by the Developer including, but not limited to, construction contracts and engineering estimates. The purpose of the cost estimate is solely to determine the amount of security. No representations are made as to the accuracy of these estimates, and the Developer agrees to pay the Actual Costs of all such Public Improvements. The estimated costs of the Public Improvements may increase in the future. Accordingly, the City reserves the right to review and adjust the cost estimate on an annual basis. Adjusted cost estimates will be made according to changes in the Construction Costs Index as published by the Engineering News Record. If the City adjusts the cost estimated for the Public Improvements, the City shall give written notice to the Developer. The Developer shall, within thirty (30) days after receipt of said written notice, provide the “Performance Guarantee”)City with a new or amended letter of credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide the City with a new or amended letter of credit, the City may exercise the remedies provided for in an paragraph 5 of this Agreement; provided, however, that prior to increasing the amount of additional security required, the City shall give credit to the Developer for all required Public Improvements which have actually been completed so that the amount of security required at any time shall relate to the cost of required Public Improvements not less than one hundred fifteen yet constructed. In the event the Public Improvements are not constructed or completed within the period of time specified by paragraph 8 of this Agreement or a written extension of time mutually agreed upon by the parties to this Agreement, the City may drawn on the letter of credit to complete the Public Improvements called for in this Agreement. In the event the letter of credit is to expire within fourteen (14) calendar days and the Developer has not yet provided a satisfactory replacement, the City may draw on the letter of credit and either hold such funds as security for performance of this Agreement, or spend such funds to finish the Public Improvements or correct problems with the Public Improvements as the City deems appropriate. Upon completion or performance of such improvements, conditions, and requirements within the required time, and the approval of the Director of Public Works, ninety percent (11590%) of the estimated costs of construction shall be released to the Developer within ten (10) days of acceptance by the City provided, however, the City shall retain through the one (1) year warranty period at least twenty percent (20%) of the total estimated cost construction costs of the improvements, as certified to the City by the Developer and as accepted by the City and as set forth in Exhibit B which have not been completed as of the date on which such security is provided to the City. The security is included in Exhibit C. The Performance Guaranty shall be subject to the following terms and conditions: a. The Developer providing the Performance Guarantee shall have no direct or indirect ownership or managerial control over the entity issuing any Performance GuaranteePublic Improvements. b. In the event that prior to City acceptance of the Improvements the Performance Guarantee should expire or the entity issuing the Performance Guarantee becomes non- qualifying, or the cost of improvements construction is reasonably determined by the City to be greater than the amount of the security provided, then the City shall furnish the Developer with written notice of such condition, and within fifteen (15) days of receipt of such notice the Developer shall provide the City with a substituted qualifying Performance Guarantee, or augment the deficient security to achieve one hundred fifteen percent (115%) of the cost of improvements completion. If such Performance Guarantee is not timely furnished, then development activities including but not limited to the issuance of building permits and certificates of occupancy and the extension of utility services, may be suspended by the City pending compliance herewith. c. The Developer shall ensure that all contractors and/or subcontractors employed in connection with construction or installation of the Improvements shall be licensed, to the extent such licensing is required, before any work on the Improvements is commenced.