Napa County Municipal Code Ch. 17.38 Improvement Construction Agreements

A. If the improvements required by this title are not satisfactorily completed prior to the submittal of the final or parcel map for approval, the subdivider shall, concurrent with the acceptance of the final or parcel map, enter into an agreement with the county to complete all required but unfinished improvements at the subdivider's expense within eighteen months, and thereafter to maintain the improvements for an additional twelve months. The eighteen-month period may be reduced to twelve months by the director of planning if the director that completion of the improvements within twelve months is necessary to preserve the public health and safety.

B. Agreements involving parcel maps shall be executed by the subdivider and the director of planning acting on behalf of the board of supervisors. All other agreements will be executed by the board. Standard agreement forms are available upon request from the director of planning.

C. Any such agreement shall be subject to cancellation upon a reversion of the entire subdivision to acreage.

(Ord. 854 § 2 (part), 1987: prior code § 11691)

(Ord. No. 1379, § 124, 1-29-2013)

A. The completion date for any improvements to be constructed pursuant to an improvement agreement may be extended by the advisory agency that approved the parcel map, or the board in the case of a final map, upon written request by the subdivider and the submittal of evidence to justify such extension. Each extension shall be for a period not to exceed one year. The request shall be made not less than thirty days prior to the expiration of the improvement agreement.

B. In consideration of the extension, the following will be required:

1. Revisions of the improvement plans to the extent necessary to meet the current design and construction standards of the county, unless exempt from such revisions by law;

2. Revisions of the improvement construction estimate(s) to reflect current improvement costs, as approved by the director of public works;

3. Appropriate increases of the improvement securities in accordance with the revised construction estimates;

4. Recomputation of all required inspection fees in accordance with the current inspection fee schedule of the county and payment of the difference between the fees previously paid and the current fees.

C. The advisory agency may impose additional requirements as it may deem necessary or convenient as a condition to approving any time extensions for the completion of improvements.

(Ord. 887 § 32, 1988: Ord. 854 § 2 (part), 1987: prior code § 11691.1)

A. To assure satisfactory completion of the improvements, performance of any agreement entered into shall be guaranteed by one or more of the following forms of security. No final or parcel map shall be approved until all required security has been received and approved:

1. A bond or bonds by one or more duly authorized corporate sureties;

2. A deposit with the treasurer of cash or negotiable bonds of the kind approved for securing deposits of public moneys;

3. An instrument of credit, in a form acceptable to the county counsel, from an agency of the state, federal or local government, when any such agency provides at least twenty percent of the financing for the portion of the act or agreement requiring security, or from one or more financial institutions subject to regulation by the state or federal government pledging that the funds necessary to carry out the agreements are on deposit and guaranteed for payment;

4. A letter of credit, in a form acceptable to the county counsel, issued by a financial institution subject to regulation by the state or federal government, guaranteeing that all or any portion of the funds available pursuant to the letter of credit will be paid upon the written demand of the director of planning, and that such written demand need not present documentation of any type as a condition of payment, including proof of loss;

5. A lien upon the property to be divided created by contract between the owner and the county.

B. The securities identified in subsections (A)(1) through (A)(4) of this section shall constitute a trust fund which is not subject to levy or attachment by any creditor of the depositor until released by the county, and any document evidencing such security shall so provide.

C. Security to guarantee any such agreement shall be in the following amounts:

1. An amount equal to one hundred percent of the total estimated cost of the improvements, as determined by the subdivision engineer and accepted by the director of planning, to guarantee the faithful completion of the work, except that where the security is provided in the form set forth in subsection (A)(2) of this section, the amount need only be equal to fifty percent of the total estimated cost of the improvements, in consequence of lower costs associated with enforcement of security in that form; and

2. An additional amount equal to one hundred percent of the total estimated cost of the improvements, as determined by the subdivision engineer and accepted by the director of planning, to guarantee payment to the contractor, subcontractors and persons furnishing materials, equipment or labor to them in connection with the subdivision improvements, except that where the security is provided in the form set forth in subsection (A)(2) of this section, the amount need only be equal to fifty percent of the total estimated cost of the improvements, in consequence of lower costs associated with enforcement of security in that form; and

3. a.

For "guarantee, warranty, and maintenance of work," the amount of ten percent of the cost of improvements, as determined by the subdivision engineer and accepted by the director of planning, to guarantee and warrant the work for a period of twelve months following the completion and acceptance thereof by the board against any defective work or labor done or defective materials furnished, and to maintain such work to the satisfaction of the director of planning for such period. The security required under this subsection need not be furnished until the improvements have been accepted by the director of public works.

b. In the event the subdivider fails to maintain, repair, replace or reconstruct the work to the satisfaction of the director of public works, the security shall be obligated for the payment of all necessary costs and expenses that may be incurred or expended by the county in causing any or all repair, replacement, reconstruction or maintenance of the work which is discovered or may become necessary during the twelve-month period.

4. In addition to the face amount of the security required by subsection (B) of this section, there shall be included costs and reasonable expenses and fees, including reasonable attorney and expert witness fees incurred by the county in enforcing the obligation secured, all to be taxed as costs and included in any judgment.

D. The estimate of construction or installation costs shall be as approved by the director of planning, and shall provide for:

1. Not less than five percent nor more than ten percent of the total construction cost of contingencies;

2. Increase for project inflation computed to the estimated midpoint of construction.

E. Whenever an entity is required to furnish security in the manner set forth in subsection (C) of this section and is a California nonprofit corporation funded by the United States of America or one of its agencies, the entity shall not be required to comply with subsection (C)(1) or (C)(2) if the conditions set forth in Government Code Section 66499.3(c) are met.

F. If a tentative and final or parcel map is required when a mobilehome park is converted to a tenant-owned condominium following petition of at least two-thirds of the tenants expressing their intent to purchase the mobilehome park for that purpose, and if the advisory agency imposes on-site or off-site design or improvement requirements on the subdivider to mitigate a health or safety condition, the subdivider shall enter into an improvement agreement with the county for the satisfaction of any of the requirements not satisfied prior to recordation of the final or parcel map. The subdivider or the successors in interest of the subdivider shall have a period of one year from the date of the agreement to complete the remaining improvements and/or satisfy the design requirements. No bonds or other security devices shall be required to secure the performance of the agreement during this period. If the design or improvement requirements are not completed by the end of the year, the county may sue to enforce the agreement by filing an action for specific performance against the subdivider or the successor in interest of the subdivider in the Superior Court of the county, or the agreement may be extended by mutual consent of the county and the subdivider or successor in interest of the subdivider, subject to the posting of such security in the manner and amounts prescribed by subsections (A) through (E) of this section.

(Ord. 981 § 36, 1991; Ord. 915 § 3, 1989: Ord. 887 § 33, 1988: Ord. 854 § 2 (part), 1987: prior code § 11691.2)

(Ord. No. 1379, § 125, 1-29-2013)

A. The security furnished by the subdivider shall be released in whole or in part in the following manner:

1. Security given for faithful performance of any act or agreement shall be released upon the performance of the act or final completion and acceptance by the board of the required work. Notwithstanding the preceding sentence, a maximum of three partial releases of the security may be granted by written order of the director of planning upon a determination by the director of the acceptable work that has been completed and the amount of security that is necessary to guarantee the completion of the remaining improvements. Requests for partial release, setting forth in detail the amount of work completed, shall be made in writing to the director of planning.

2. Security securing the payment to the contractor, his or her subcontractors, and to persons furnishing labor, materials or equipment may, ten days after passage of the time within which claims of lien are required to be recorded pursuant to Civil Code Section 3114 and after acceptance of the work by the board, be reduced to an amount equal to the total claimed by all claimants for whom claims of lien have been recorded and notice thereof given in writing to the board. If no claims have been recorded, the security shall be released in full. If claims have been filed, the balance of the security shall be released upon the settlement of all such claims and obligations for which the security was given. Requests for such release shall be made to the director of planning, who may, prior to the release of any security under this subsection, require the land divider to provide a title report or other form of evidence sufficient to show what claims of lien, if any, are of record on the land division, and that each such lien has been satisfied or otherwise resolved.

3. The monument security shall be released upon satisfactory completion of the monumenting work and receipt of evidence that the cost of the monumenting has been paid and that the engineer or surveyor doing such work has receipted for such payment.

B. The director of planning is authorized to release or reduce the security in accordance with the provisions of this section.

C. The release(s) shall not apply to any required guarantee and warranty period, nor to the amount of the security deemed necessary by the county for such guarantee and warranty period, nor to costs and reasonable expenses and fees, including reasonable attorney fees. Such warranty security shall only be released if:

1. All deficiencies appearing on the warranty deficiency list for the subdivision have been corrected;

2. Not less than twelve months have elapsed since the acceptance of the improvements by the county or the filing of the notice of completion by the subdivider, whichever is later.

D. Notwithstanding any other provision herein, in any case where the performance of the obligation for which the security is required is subject to the approval of another agency, the security shall not be released until the obligation is performed to the satisfaction of such other agency. The director of planning shall notify such agency in writing within ten days of the date the obligation has been completed to the satisfaction of the county, and that the agency has two months after completion of the performance of the obligation to register its satisfaction or dissatisfaction. If at the end of that period the agency has not registered its satisfaction or dissatisfaction, it shall be conclusively deemed that the performance of the obligation was done to such agency's satisfaction, and the required security will be released.

(Ord. 854 § 2 (part), 1987: prior code § 11691.3)

(Ord. No. 1379, § 126, 1-29-2013)