Chapter 27.38

CITY-DEVELOPER CONTRACT

Sections:

map or parcel map. Such contracts are governed by the requirements of Title 19 of the San José Municipal Code.

• (Ord. 30308.)

Section 1217(i)(3) of the City of San José Charter excepts City-Developer Contracts from the Major Public Works Contract procurement requirements of Section 1217(c) of the City of San José Charter.

• (Ord. 30308.)

27.38.020 Definition.

27.38.030 Charter exception.

27.38.040 Council authority.

27.38.050 Director's authority.

27.38.060 Plan review.

27.38.070 Reimbursement.

27.38.080 Security.

27.38.090 Security form.

27.38.100 Clean-up deposit.

27.38.110 Insurance.

27.38.120 Indemnity.

27.38.130 Environmental mitigation, monitoring and reporting.

This Chapter 27.38 applies to City-Developer Contracts, as defined herein. (Ord. 30308.)

• A. City-Developer Contract means a contract for a Public Works Project performed by a developer or real property owner in connection with its private property development.

• B. City-Developer Contract does not include a contract involving improvements by a subdivider as a condition of the approval of a final

• A. The authority to award a City-Developer Contract in which the amount paid by the City exceeds the threshold amount for a Minor Public Works Contract is reserved to the Council.

• B. The Council may establish a contingency in conjunction with the execution of a CityDeveloper Agreement in which the City is reimbursing the developer or real property owner for work in accordance with Section 27.38.070.

• (Ord. 30308.)

• A. In accordance with Subsection C of Section 27.06.090, the Director of the Department of Public Works can execute a City-Developer Contract in which the amount paid by the City is equal to or less than the threshold amount for a Minor Public Works Contract.

• B. The Director cannot include a contingency in any City-Developer Contract that the Director is authorized to execute under this Section 27.38.050.

• (Ord. 30308.)

• A. Every City-Developer Contract must include appropriate requirements for the Director to review and approve the plan or design of the Public Works Project before construction starts.

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§ 27.38.060

• B. The Director is authorized to approve the plan or design on behalf of the City.

• (Ord. 30308.)

The City may agree in a City-Developer Contract to reimburse the developer or real property owner partially or entirely for the cost of an improvement required by the Contract if, and only if, all the following conditions exist:

• A. The developer or real property owner will perform the reimbursable work in connection with its private property development;

• B. The reimbursable work is related to an improvement required as a condition of the City's approval of the private property development but involves work exceeding the size, area, capacity, capabilities, or other similar requirements of the required improvement;

• C. The developer or real property owner can perform the reimbursable work expeditiously and with no more inconvenience to the public than if the City were to perform the work;

• D. The reimbursement amount is reasonably likely to be no more than what the City would have to pay to complete the same work; and

• E. The developer or real property owner complies with the prevailing wage requirements in Chapter 14.09 of Title 14 to the extent they are applicable.

• (Ord. 30308.)

Each City-Developer Contract will include the following types of security in the following amounts.

• A. Performance security to secure the faithful performance by the developer or real property owner to construct the Public Works Project required by the City-Developer Contract. Performance security will be in the amount of 100 percent of

the estimated cost of the Public Works Project required by the City-Developer Contract.

• B. Payment security to secure payment by the developer or real property owner to any contractor, subcontractor, supplier or other person furnishing labor or materials to the Public Works Project required by the City-Developer Contract. Payment security will be in the amount of 100 percent of the estimated cost of the Public Works Project required by the City-Developer Contract.

• C. Warranty security to warrant against defective labor and materials the work undertaken by the developer or real property owner under the City-Developer Contract. Warranty security will be for a period of one (1) year following the City's acceptance of the completed Public Works Project required by the City-Developer Contract. It will be in the amount of 25 percent of the estimated cost of the Public Works Project required by the CityDeveloper Contract.

• D. Monument security to secure the developer or real property owner setting any public monuments required by the CityDeveloper Contract before the City's acceptance of the completed Public Works Project. Monument security will be in the amount of 100 percent of the estimated cost of setting the public monuments required by the City-Developer Contract.

• (Ord. 30308.)

• A. For a City-Developer Contract in which the estimated cost of the required Public Works Project exceeds $250,000, the payment security and performance security must be in the form of bonds meeting the requirements of Part 1 of Chapter 27.24 of this Title 27.

• B. For a City-Developer Contract in which the estimated cost of the required Public Works

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§ 27.38.150

Project is $250,000 or less, and for the warranty and monument securities required by a City-Developer Contract of any amount, security may be in any of the following forms.

1. Bonds meeting the requirements of Part 1 of Chapter 27.24 of this Title 27.

2. An irrevocable standby letter of credit from a financial institution and in a form acceptable to the Director and the City Attorney. The City must have the ability to withdraw funds if the developer or property owner fails to fulfill any of the obligations for which the security is given.

3. A certificate of deposit from a financial institution and in a form acceptable to the Director and the City Attorney. The City must have the ability to withdraw funds if the developer or property owner fails to fulfill any of the obligations for which the security is given.

4. A cash deposit with the City under terms and conditions that allow the City to use the funds if the developer or property owner fails to fulfill any of the obligations for which the security is given.

(Ord. 30308.)

• A. If the estimated cost of the Public Works Project required by the City-Developer Contract exceeds $250,000, then the developer or real property owner must deposit with the Director a sum of money that the City can use to remedy the developer's or owner's failure for any reason to perform any obligation of the Contract.

• B. The deposit must be in the following amounts:

  1. Five percent of the first $100,000.00 of the estimated cost of the of the Public Works Project,

  2. Two and one-half percent of the next $400,000.00 of the estimated cost of the of the Public Works Project, and

  3. One percent of the estimated cost of the Public Works Project exceeding $500,000.

• C. The developer or real property owner must deposit the money with the City at the time it executes the City-Developer Contract.

• D. No deposit is required if the City-Developer Contract provides for the City to reimburse the developer or real property owner pursuant to Section 27.38.070.

• E. The Director will return any unexpended portion of such deposit following the City's final acceptance of the Public Works Project.

• (Ord. 30308.)

Every City-Developer Contract must require insurance in accordance with Part 2 of Chapter 27.24 of this Title 27.

(Ord. 30308.)

Every City-Developer Contract must require an indemnity provision in accordance with Part 3 of Chapter 27.24 of this Title 27.

(Ord. 30308.)

Every City-Developer Contract must include appropriate provisions complying with the requirements of Chapter 27.18 of this Title 27. (Ord. 30308.)

The Director is authorized to enter into and execute a City-Developer Contract that provides for payment of a fee in lieu of construction of public improvements required as a condition of any development permit issued by the City. (Ord. 30308.)

• A. The Director may refund any fee, or portion thereof, paid as a condition of a development approval if the Director determines that:

  1. The fee, or portion thereof, was collected in error;

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§ 27.38.150

2. The condition of development approval requiring payment of the fee is amended after payment of the fee to provide that the fee is not required or the amount thereof is reduced; or

3. The development approval expires and no development thereunder has commenced.

• B. For the purposes of this Section, "development approval" means approval of any development permit pursuant to Chapter 20.100 of the Municipal Code.

• (Ord. 30308.)