11-4-1: IMPROVEMENTS AND SUBDIVISION IMPROVEMENT AGREEMENTS:
11-4-2: ESCROW DEPOSITS FOR LOT IMPROVEMENTS:
11-4-3: MAINTENANCE OF IMPROVEMENTS:
11-4-4: DEFERRAL OR WAIVER OF REQUIRED IMPROVEMENTS:
11-4-5: ISSUANCE OF BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY:
11-4-6: CONSUMER PROTECTION LEGISLATION AND CONFLICT OF INTEREST STATUTES:
11-4-1: IMPROVEMENTS AND SUBDIVISION IMPROVEMENT AGREEMENTS:
A. Completion Of Improvements: Before the final subdivision plat is signed, all applicants shall be required to complete, in accordance with the city council's decision and to the satisfaction of the city engineer, all the street, sanitary and other public improvements, including lot improvements on the individual lots of the subdivision plat and as approved, and to dedicate those public improvements to the city, free and clear of all liens and encumbrances on the dedicated property and public improvements.
B. Subdivision Improvement Agreement And Guarantee:
1. Agreement: Upon presentation and demonstration of exceptional, unique and unusual circumstances by the applicant to the planning commission first, and then the city council, and after receiving the recommendation of the planning commission, the city council, in its sole discretion, may waive the requirement that the applicant complete and dedicate all public improvements prior to approval of the final subdivision plat and, as an alternative, permit the applicant to enter into a subdivision improvement agreement by which the subdivider covenants to complete all required public improvements no later than one year following the date on which the city council approved the final subdivision plat. With respect to all subdivision developments, where any public improvements are required, the applicant shall warrant that all required public improvements will be free from defect for a period of one year following the acceptance by the city council of the dedication of the last completed public improvement. The subdivision improvement agreement shall contain such other terms and conditions as agreed to by the applicant and the city council, but such one year warranty shall be given and honored by all applicants regardless of whether or not a subdivision improvement agreement is executed by the applicant and the city.
2. Covenants To Run: The subdivision improvement agreement shall provide that the covenants contained in the agreement shall run with the land and bind all successors, heirs and assigns of the subdivider. The subdivision improvement agreement will be adopted by the city council, pursuant to applicable state and local laws, and shall be recorded in the county recorder's office.
3. Security: In the event the city council should permit an applicant to enter into a subdivision improvement agreement, it shall require the applicant to provide a letter of credit, cash escrow, performance bond, or other security document or agreement as approved by the city attorney, as security for the promises contained in the subdivision improvement agreement. Whatever security is provided, it shall be in an amount equal to one hundred fifty percent (150%) of the estimated cost of completion of the required public improvements, including lot improvements and including estimated costs incurred by the city for inspections of the improvements. The issuer of the letter of credit or bond, or the escrow agent, or the person or entity providing the required security amount, as applicable, shall be acceptable to the city council.
a. Letter Of Credit: If the applicant posts a letter of credit as security for its promises contained in the subdivision improvement agreement, the letter of credit shall: 1) be irrevocable; and 2) be for a term sufficient to cover the completion, maintenance and warranty periods in subsection B1 of this section.
b. Cash Escrow: If the applicant posts a cash escrow as security for its promises contained in the subdivision improvement agreement, the escrow instructions shall provide: 1) that the subdivider will have no right to a return of any of the funds, except as provided in this section; and 2) that the escrow agent shall have a legal duty to deliver the funds to the city whenever the city attorney presents an affidavit to the agent attesting to the city's right to receive funds whether or not the subdivider protests that right. If and when the city accepts dedication for the last completed, required public improvement, the city shall execute a waiver of its right to receive all but twenty five percent (25%) of the funds represented by the letter of credit or cash escrow if the subdivider is not in breach of the subdivision improvement agreement. The residual funds shall be security for the subdivider's covenant to maintain the required public improvements and its warranty that the improvements are free from defect as provided in subsection B1 of this section.
c. Performance Bond: A performance bond may be used as security for promises contained in the subdivision improvement agreement; provided, that the bonding agency is recognized by the city as a bonified bonding entity and that the amount of the bond is equal to one hundred fifty percent (150%) of the estimated cost of all improvements, including estimated costs incurred by the city for inspections of the improvements.
d. Temporary Improvement: The applicant shall build and pay for all costs of temporary improvements required by the city council and shall maintain those temporary improvements for the period specified by the city council. Prior to construction of any temporary facility or improvement, the developer shall file with the city a separate subdivision improvement agreement and a letter of credit, cash escrow, or performance bond in an appropriate amount for temporary facilities, which agreement and security shall ensure that the temporary facilities will be properly constructed, maintained and removed.
e. Costs Of Improvements: All required improvements shall be made by the developer, at its expense, without reimbursement by the city or any improvement district, except as may be allowed under state law, and approved by the city council.
f. Failure To Complete Improvements:
(1) For subdivisions in which all required public improvements must be installed and dedicated before the final plat can be signed by the chairperson of the planning commission, mayor and city recorder, and recorded and for which no subdivision improvement agreement has been executed and no security has been posted, if the improvements are not completed within the period specified by the city council in approving the final plat, the concept plan or preliminary plat approval shall be deemed to have expired.
(2) For subdivisions where a subdivision improvement agreement has been allowed and executed, and security has been posted and required public improvements have not been installed within the terms of the agreement, the city may then:
(A) Declare the agreement to be in default and require that all the improvements be installed regardless of the extent of the building development at the time the agreement is declared to be in default;
(B) Obtain funds under the security and complete improvements itself or through a third party;
(C) Assign its right to receive funds under the security to any third party, including a subsequent owner of the subdivision for which improvements were not constructed, in whole or in part, in exchange for that subsequent owner's promise to complete improvements in the subdivision;
(D) Exercise any other rights available pursuant to the subdivision improvements agreement or under the law.
g. Acceptance Of Dedication Offers: Acceptance of the dedication of streets, public areas, easements and parks on the final plat or otherwise, shall be evidenced by the final inspection and approval of the same by the city engineer in a written certificate as provided herein. The approval of a subdivision plat by the planning commission and city council, whether concept plan, preliminary or final plat, shall not be deemed to constitute or imply the acceptance of any dedication by the city of any street, easement, park or other public improvement shown on the plat or in the construction drawings. Further, approval of a subdivision plat shall not imply or obligate the city to provide or to make available any services to a subdivision. The city council shall require the plat to be endorsed with appropriate notes to this effect.
h. Inspection Of Improvements: The city shall provide for inspection of required improvements during construction and ensure their satisfactory completion. The applicant shall pay to the city an inspection fee based on the actual cost of inspections. Where the improvements are completed prior to final plat approval, the subdivision plat shall not be signed by the chairperson of the planning commission, mayor or city recorder unless the inspection fee has been paid at the time of application. These fees shall be due and payable upon demand of the city, and no building permits or certificates of occupancy shall be issued until all fees are paid. If the city engineer finds, upon inspection, that any one or more of the required improvements have not been constructed in accordance with the city construction standards and specifications, the applicant shall be responsible for properly completing the improvements.
i. Release Or Reduction Of Security:
(1) Certificate Of Satisfactory Completion: The city council will not accept dedication of required improvements, nor release nor reduce the amount of any security posted by the subdivider until the city engineer has submitted a certificate stating that all required improvements have been satisfactorily completed and until the applicant's engineer or surveyor has certified satisfactory completion to the city engineer, through submission of a detailed as built survey plat of the subdivision, or detailed as built drawings, indicating location, dimensions, materials, and other information required by the city council or city engineer, that the layout of the line and grade and all other required specifications of all public improvements are in accordance with construction plans and actual construction of the subdivision. Upon such approval and recommendation by the city council, city engineer and city attorney, the city council shall thereafter accept the improvements for dedication in accordance with the established procedure.
(2) Reduction Of Escrowed Funds And Security: If the security posted by the subdivider was a cash escrow or bond, the amount of the escrow or bond shall be reduced upon actual acceptance of the dedication of public improvements and then only to the ratio that the cost of the public improvement for which dedication was accepted bears to the total cost of public improvements for the subdivision. In no event shall a cash escrow or bond be reduced below twenty five percent (25%) of the principal amount. At the end of the maintenance and warranty periods, all escrowed funds or other security, if any, shall be released to the subdivider, provided all warranty issues, disputes or other concerns have been resolved. If the security provided by the subdivider was a letter of credit, the city attorney shall execute waivers of the city's right to draw funds under the letter of credit upon actual acceptance of the dedication of public improvements and then only to the ratio that the cost of the public improvement for which dedication was accepted bears to the total cost of public improvements for the subdivision. In no event shall waivers be executed that would reduce the security below twenty five percent (25%) of its original amount. (Ord. 2007-05, 5-16-2007)
11-4-2: ESCROW DEPOSITS FOR LOT IMPROVEMENTS:
A. Acceptance Of Escrow Funds: Whenever, by reason of the season of the year, any lot improvements required by the subdivision regulations cannot be performed, the city manager may issue a certificate of occupancy, provided there is no danger to health, safety or general welfare upon accepting a cash escrow deposit in an amount to be determined by the city engineer for the cost of the lot improvements remaining to be installed. The subdivision improvements agreement and security covering the lot improvements shall remain in full force and effect. This section shall only apply in the event an applicant has been allowed to enter into a subdivision improvement agreement and post the required security, in lieu of completing all required public improvements prior to the execution and recording of the final plat.
B. Procedures On Escrow Fund: All required improvements for which escrow monies have been accepted by the city at the time of issuance of a certificate of occupancy shall be installed by the subdivider within a period of nine (9) months from the date of deposit and issuance of the certificate of occupancy. If the improvements have not been properly installed at the end of the time period, the city shall give two (2) weeks' written notice to the developer requiring it to install the improvements, and if they are not then installed properly, the city manager may request the city council to proceed to contract out the work for the installation of the necessary improvements in a sum not to exceed the amount of the escrow deposit. At the time of the issuance of the certificate of occupancy for which escrow monies are being deposited with the city, the developer shall obtain and file with the city, prior to obtaining the certificate of occupancy, a notarized statement from the purchaser or purchasers of the premises authorizing the city to install the improvements at the end of the nine (9) month period if the improvements have not been duly installed by the subdivider. (Ord. 2007-05, 5-16-2007)
11-4-3: MAINTENANCE OF IMPROVEMENTS:
The developer shall be required to maintain all required public improvements on the individual subdivided lots and provide for snow removal on streets and sidewalks until acceptance of the improvements by the city council. If there are any certificates of occupancy on a street not dedicated to the city, the city may, on twelve (12) hours' notice, plow the street or effect emergency repairs and charge those costs to the developer. Following the acceptance of the dedication of any public improvement by the city, the city shall require the subdivider to maintain the improvement for a period of one year from the date of acceptance. (Ord. 2007-05, 5-16-2007)
11-4-4: DEFERRAL OR WAIVER OF REQUIRED IMPROVEMENTS:
A. Authorized: The city council may defer or waive at the time of final approval, subject to appropriate conditions, the provision of any or all public improvements as, in its judgment, are not requisite in the interests of the public health, safety and general welfare, or which are inappropriate because of the inadequacy or nonexistence of connecting facilities. Any determination to defer or waive the provision of any public improvement must be made on the record and the reasons for the deferral or waiver also shall be expressly made on the record.
B. Payment By Subdivider: Whenever it is deemed necessary by the city council to defer the construction of any improvement required under these regulations because of incompatible grades, future planning, inadequate or nonexistent connecting facilities, or for other reasons, the subdivider shall pay his share of the costs of the future improvements to the city prior to signing of the final subdivision plat by the mayor and city recorder, or the developer may execute a separate subdivision improvement agreement secured by a letter of credit guaranteeing completion of the deferred improvements upon demand of the city. (Ord. 2007-05, 5-16-2007)
11-4-5: ISSUANCE OF BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY:
A. Completion Of Public Improvements Required: When a subdivision improvement agreement and security have been required for a subdivision, no certificate of occupancy for any building in the subdivision shall be issued prior to the completion of the required public improvements and the acceptance of the dedication of those improvements by the city, as required in the city council's approval of the final subdivision plat.
B. Street Improvements: In the event the city council has permitted an applicant to enter into a subdivision improvement agreement and post required security, in lieu of completing all required public improvements prior to the execution and recording of the final plat, if an occupancy permit is requested, the extent of street improvement shall be adequate for vehicular access by the prospective occupants and by police and fire equipment prior to the issuance of an occupancy permit. The developer shall, at the time of the offer of dedication, submit monies in escrow to the city in a sum determined by the city engineer for the necessary final improvement of the street.
C. Building Permit: No building permit shall be issued until: 1) all public improvements have been fully completed, dedicated and accepted or, if allowed, assurance has been posted as required herein; 2) the city has accepted the developer's offer to dedicate the improvements by approval of the final subdivision plat; and 3) necessary minimum improvements have been completed to provide public services and all weather access to the lot for which building permit is being requested.
D. Damages; Repair: Any damage to improvements associated with the subdivision must be repaired or replaced by the contractor to the satisfaction of the city. Repairs and replacements include, but are not limited to, concrete walks, curbs, gutters and utilities. No occupancy permit shall be issued to any homeowner of the subdivision until said improvements associated with the homeowner's property have been fully completed. (Ord. 2007-05, 5-16-2007)
11-4-6: CONSUMER PROTECTION LEGISLATION AND CONFLICT OF INTEREST STATUTES:
A. Violations: No building permit or certificate of occupancy shall be granted or issued if a developer or its authorized agent has violated any federal, state or local law pertaining to: 1) consumer protection; or 2) real estate land sales, promotion or practices; or 3) any applicable conflicts of interest legislation with respect to the lot or parcel of land which is the subject of the permit or certificate until a court of competent jurisdiction so orders.
B. Revocation For Violation: With respect to any lot or parcel of land described in subsection A of this section, if a building permit or certificate of occupancy has been granted or issued, it may be revoked by the city until a court of competent jurisdiction orders otherwise; provided, that in no event shall the rights of intervening innocent third parties in possession of a certificate of occupancy be prejudiced by any such revocation.
C. Penalty: Any violation of a federal, state or local consumer protection law, including, but not limited to, the postal reorganization act of 1970, the federal trade commission act of 1970, the interstate land sales full disclosure act, the truth in lending act, the uniform commercial credit code, the state "blue sky" laws, state subdivision disclosure acts, or any conflict of interest statutes, law or ordinance, shall be deemed a violation of these regulations and subject to all of the penalties and proceedings as set forth in section 11-1-13 of this title. (Ord. 2007-05, 5-16-2007)
Footnotes
Footnote 1: See also section 10-3-7 of this code.