Ceres Municipal Code Ch. 09 Improvement Agreements

If the required improvements are not satisfactorily completed before a final map or parcel map is filed with the Director, the subdivider shall enter into an agreement with the City to make all improvements as may be required upon approval of such map. The requirements of such improvement agreement shall not be waived under any circumstances.

The purpose of the subdivision improvement agreement includes, among other considerations, eliminating and avoiding the harmful effects of premature subdivision which leaves property undeveloped and unproductive. Therefore, commencement of construction of the improvements under the agreement shall not be a condition precedent to the enforcement and requirement of specific performance under said agreement.

The benefit of the subdivision improvement agreement inures solely to the City and shall not be construed to benefit any third parties not signatory to said agreement, including but not limited to the following: lot purchasers; subcontractors; laborers; and suppliers.

(Ord. No. 2020-1058, § 3, 3-23-2020)

The improvement agreement shall be in writing, shall be approved as to form by the City Attorney, and shall be secured and conditioned as provided in this chapter. The Director may require an acknowledged abstract of said agreement to be recorded simultaneously with the final map or the parcel map.

The improvement agreement, and any required acknowledged abstract thereof, shall be complete, subject to Council approval, and on file with the Director before the final map or parcel map is accepted for filing. The term of each improvement agreement filed pursuant to the provisions of this section shall begin on the date of filing and end upon the date of completion or fulfillment of all terms and conditions contained therein to the satisfaction of the Director.

(Ord. No. 2020-1058, § 3, 3-23-2020)

Said agreement shall include at least the following provisions:

A. Mutually agreeable terms to complete all required improvements at the subdivider's expense.

B. A provision that the subdivider shall comply with all requirements of this title, of the City Code, and of other applicable laws, and with all terms and conditions of required improvement permits.

C. A statement indicating a period of one year within which the subdivider shall complete all improvement work.

D. A provision that if the subdivider fails to complete the work within the specified period of time, or any extended period of time that may have lawfully been granted to the subdivider, the City may, at its option, complete the required improvement work and the subdivider and his surety shall be firmly bound under a continuing obligation for payment of the full cost and expense incurred or expended by the City in completing such work.

E. Provision for the repair and replacement of defective material and workmanship of said improvements by the subdivider for a period of 12 months after the improvements have been accepted by the Council.

F. Provision for the inspection of all improvements of the subdivision by the Director for a period of 12 months after said improvement acceptance date.

G. A provision guaranteeing payment to the City for all engineering and inspection costs and fees and all other incidental expenses incurred by the City.

H. A description of all lands within the exterior boundaries of the subdivision.

(Ord. No. 2020-1058, § 3, 3-23-2020)

The improvement agreement may also include the following provisions and such other additional terms and conditions as may be required upon approval of the tentative map or as are determined necessary by the Council to carry out the intent and purposes of this title:

A. Provision for the repair, at the subdivider's expense, of any damage to public streets which may reasonably be expected to result from hauling operations necessary for subdivision improvements required by this title, including the importing or exporting of earth for grading purposes.

B. Mutually agreeable terms to acquire public easements which are outside the boundaries of the subdivision at the subdivider's expense.

C. Mutually agreeable terms to improve, at some undetermined future date, easements offered and reserved for future public use at the subdivider's expense; and providing that such improvements shall be secured by separate cash bond in the manner prescribed by section 17.09.050 and 17.09.060; and further providing that only the requirements of this provision shall not delay the release of any other improvement security provided pursuant to the aforementioned sections.

D. Provision for any reimbursement to be paid the subdivider under the provisions of section 66486 of the Subdivision Map Act.

E. Provision for the setting of required monuments after the recordation of the final map or parcel map.

F. Provision for the method of payment of any fees imposed by this chapter.

G. Provision for guarantee and warranty of the work, for a period of one year following completion and acceptance thereof, against any defective work or labor done or defective materials furnished, in the performance of the agreement with the City or the performance of the act.

(Ord. No. 2020-1058, § 3, 3-23-2020)

A. General. Except as otherwise provided in subsection B of this section, a subdivider shall secure the improvement agreement entered into pursuant to section 17.09.040 in the following amounts:

1. Performance security. An amount determined by the Director to be 100 percent of the total estimated cost of the construction or installation of the improvements or of the acts to be performed, securing the faithful performance and completion of the improvements or acts to be performed; and

2. Payment security. An amount determined by the Director to be not less than 100 percent of the total estimated cost of the improvement or required act, securing payment to the contractor, to the subcontractors, and to persons furnishing labor, materials or equipment for the construction or installation of the improvements or the performance of the required acts; and

3. Warranty security. An amount of ten percent of the estimated cost of improvements shall be required for the guarantee and warranty of the work for a period of one year following the completion and acceptance thereof against any defective work or labor done, or defective materials or equipment furnished.

B. Nonprofit California corporations. Pursuant to section 66499.3 of the Subdivision Map Act, entities that are California nonprofit corporations, funded by the United States of America or one of its agencies, or funded by the State of California or one of its agencies, are exempt from the requirements of subsections A.1 and 2 of this section, provided they meet and fulfill the alternative security requirements specified in section 66499.3, subdivision (c), of the Subdivision Map Act.

(Ord. No. 2020-1058, § 3, 3-23-2020)

The improvement security shall be conditioned upon the faithful performance of the improvement agreement and shall be in one of the forms provided in section 66499 of the Subdivision Map Act. The specific form of the improvement security required for each agreement and the terms thereof shall be recommended by the Director and shall be subject to the approval of the City.

A surety bond to secure the faithful performance of the agreement shall substantially conform to the form set forth in section 66499.1 of the Subdivision Map Act. A surety bond to secure payment to the contractor, subcontractor, and persons furnishing labor, materials or equipment shall substantially conform to the form set forth in section 66499.2 of said Act.

Improvement security shall be filed with the City, together with an executed subdivision improvement agreement, before the City accepts the final map or parcel map for filing.

(Ord. No. 2020-1058, § 3, 3-23-2020)

The liability upon the security given for the faithful performance of the agreement shall include the performance of any changes or alterations in the work; provided, that all such changes or alterations do not exceed ten percent of the original estimated cost of the improvement.

(Ord. No. 2020-1058, § 3, 3-23-2020)

If the required subdivision improvements are financed and installed pursuant to special assessment proceedings, upon the furnishing by the contractor of the faithful performance and payment bond required by the special assessment act being used, the improvement security of the subdivider may be reduced by the City by the amount corresponding to the amount of such bonds furnished by the contractor.

(Ord. No. 2020-1058, § 3, 3-23-2020)

In addition to the requirements set forth under Government Code section 66499.7, the release of improvement security shall be in accordance with the following:

A. Performance security. The performance security shall be released only upon completion or fulfillment of all terms and conditions of the improvement agreement and acceptance by the Council according to the procedures and schedule stipulated in the Subdivision Map Act. Such acceptance shall occur when the certificate of completion is verified by the Director. If a warranty security is not submitted, performance security shall be released one year after acceptance of improvements and correction of all warranty deficiencies.

B. Payment security. Security given to secure payment to the contractor, subcontractors and persons furnishing labor, materials or equipment may, six months after the completion and acceptance of the improvements by the Council, be reduced to an amount equal to the amount of all claims therefor filed and of which notice has been given to the City. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given.

C. Warranty security. The warranty security shall be released upon satisfactory completion of the one year warranty period; provided, that all warranty deficiencies have been corrected as determined by an inspection by the Director.

Pursuant to California Government Code sections 66499.7 and 66499.9, the release of improvement security as set forth above shall not apply to any costs, reasonable expenses or fees, including reasonable attorney's fees.

(Ord. No. 2020-1058, § 3, 3-23-2020)