Tustin Municipal Code Part 3 Dedications, Improvements and Enforcement

a

Dedication of Streets, Alleys, Bicycle Paths and Other Public Rights-of-way or Easements

To be consistent with the Circulation Element of the General Plan and to the extent permitted by Law, the subdivider may be required, as a condition of approval of a tentative map, to dedicate or make an irrevocable offer of dedication of real property both on- and off-site required for public use or benefit, including, but not limited to, streets and alleys (including access rights), drainage, public greenways, parks, bicycle paths, trails, scenic easements, public utility easements, local transit facilities as provided in Section 66475.2 of the Subdivision Map Act, and other public easements. In addition, the subdivider may also be required to improve or agree to improve all streets and alleys, including access rights, drainage, public greenways, bicycle paths, trails, public utility easements, and other public easements. Improvements shall be made in accordance with 9332 (Improvements).

b

Waiver of Direct Access Rights

The City may require as a condition of approval of a tentative map that dedications or offers of dedication of streets include a waiver of direct access rights to any such street from any property within or abutting the subdivision. Upon acceptance of the dedication, such waiver shall become effective in accordance with its provisions.

c

Dedications/Fee Title

All dedications of property to the City for public purposes shall be made in fee title, except that, in the City's discretion, a grant of an easement may be accepted for the following purposes: Open space easements, scenic easements or public utility easements. All dedications in fee and grants of easements shall be free of liens and encumbrances except for those which the City, in its discretion, determines would not conflict with the intended ownership and use. The City may elect to accept an irrevocable offer of dedication in lieu of dedication of fee title.

d

Parkland Dedication

To implement the Conservation/Open Space/Recreation Element of the General Plan which contains policies and standards for parks and recreational facilities, the subdivider shall dedicate land or pay a fee in lieu thereof, or a combination of both, at the option of the City except as otherwise provided in Government Code Section 66477, for the purpose of developing new or rehabilitating existing neighborhood or community parks and recreational facilities to serve the subdivision, and in accordance with the standards and formula contained in this section.

1. General Provisions

a) Applicability. The provisions of this section shall be applicable to the division of real property defined as a "subdivision" by Section 66424 of the Subdivision Map Act.

b) Exceptions. Park land dedications or fees in lieu thereof shall not be required for the following:

(1) Industrial subdivisions.

(2) Commercial subdivisions.

(3) Condominium projects or stock cooperatives in an existing apartment building which is more than five (5) years old and no new dwelling units are added.

(4) Subdivisions containing less than five (5) parcels and not used for residential purposes.

c) Waiver. Parkland dedication fees may be waived by the City Council in its discretion upon the submission and approval of agreements for specific projects designed and guaranteed for low income, senior and handicapped citizen occupants.

2. Standards and formula for land dedication:

a) The public interest, convenience, health, welfare, and safety require that three (3) acres of usable park land per one thousand (1,000) potential population be devoted to local park and recreational purposes.

b) When the requirements of this section are complied with solely on the basis of the dedication of parkland, the minimum amount of land to be provided shall be computed by multiplying the number of proposed dwelling units by the parkland acres per dwelling unit in accordance with the appropriate density classification in the following table:

Source: Tustin General Plan Land Use Element, as amended

These density ranges, average person per dwelling unit and/or parkland acreage per dwelling unit shall be used to achieve a parkland dedication rate of three (3) acres of parkland per one thousand (1,000) persons unless alternate density ranges, average persons per dwelling unit and/or parkland acreage per dwelling unit are established in an adopted Specific Plan adopted in compliance with Government Code Section 65450 et seq., Disposition and Development Agreement in compliance with California Community Redevelopment Law, or other agreement.

3. Fees in lieu of dedication.

When there is no public park or recreational facility required within the proposed subdivision, the subdivision is less than fifty (50) parcels, or the project is a conversion of an existing apartment complex to multiple-owner occupancy not exempted herein, the subdivider shall pay a park fee, on a per unit basis, reflecting the value of land required for park purposes. The value of the amount of such fee shall be based upon the fair market value of the amount of land which would otherwise be required for dedication.

The fair market value shall be determined by a Master Appraisal Institute (MAI) Designated member of the Appraisal Institute acceptable to the City and at the expense of the subdivider; and the determination shall consider the value of a buildable acre of land at the time the final map is to be recorded, as if otherwise the land would be fully developed to the residential density shown on the tentative map for which the fees are required. If more than one (1) year elapses between the appraisal and recording of the final map, the City will require that a new appraisal be prepared at the expense of the subdivider. For purposes of this section, the determination of fair market value of a buildable acre shall consider, but not necessarily be limited to, the approval of and conditions of the tentative subdivision map, the General Plan, zoning, property location, off-street improvements facilitating use of the property, and site characteristics of the property.

If a subdivider objects to the fair market value as determined by the Designated member of the Appraisal Institute, an appeal may be made to the Planning Commission. The subdivider shall have the burden of proof in contesting the appraised value.

Nothing in this section shall prohibit the dedication and acceptance of land for park and recreation purposes in subdivisions of fifty (50) parcels or less, where the subdivider proposes such dedication voluntarily and the dedication and land is acceptable to the responsible decision maker.

For subdivisions in excess of fifty (50) parcels, the responsible decision maker may elect to receive a fee in lieu of land dedication. The value of the amount of such fee shall be based upon the fair market value of the amount of land which would otherwise be required for dedication as determined above.

Notwithstanding the foregoing, dedication of land may be required by the City for a condominium, stock cooperative, or community apartment project which exceeds fifty (50) dwelling units, regardless of the number of parcels.

(Ord. No. 1524, Sec. 69, 8-16-22)

4. Combination of dedication and fees.

Whenever the requirements of this section are complied with by both the provision of parkland and the payment of a park fee, the amount of the park fee shall be computed by determining the required amount of parkland in accordance with the provision of subsection d.2, and subtracting the amount of parkland actually provided. The remainder shall be converted to "fee" on a per unit basis in accordance with the provisions of subsection d.3.

5. Credit for private open space.

Where private open space for park and recreational purposes is provided in a proposed subdivision and such space is to be privately owned and maintained by the future residents of the subdivision, such areas may be credited against the requirement for dedication of parkland, as provided for in subsection d.2, provided the responsible decision maker finds it is in the public interest to do so, and that all of the following standards are met:

a) That yards, court areas, setbacks and other open areas required to be maintained by the zoning and building regulations shall not be included in the computation of such private open space;

b) That the private ownership and maintenance of the open space is adequately provided for by written agreement;

c) That the use of the private open space is restricted for park and recreational purposes by recorded covenants which run with the land in favor of the future owners of property within the subdivision and which cannot be defeated or eliminated without the consent of the responsible decision maker;

d) That the proposed private open space is reasonably adaptable for use for park and recreational purposes, taking into consideration such factors as size, shape, topography, geology, access, including provisions for bicyclists, and location of the private open space land;

e) The facilities proposed for the open space are in substantial accordance with the provision of the Recreational Element of the General Plan, and are approved by the responsible decision maker;

f) That the open space for which one hundred (100) percent credit is given is a minimum of one (1) acre and provides at least one (1) of the park basic elements listed below, or a combination of such and other recreation improvements that will meet the specific recreation needs of future residents of the area:

(1) "Recreational open spaces" which are generally defined as park areas for active recreation pursuits such as soccer, baseball, softball, and football, and have at least one (1) acre of maintained turf with less than five (5) percent slope.

(2) "Court areas" which are generally defined as tennis courts, badminton courts, basketball courts, shuffleboard courts, or similar hard-surfaced areas especially designed and exclusively used for court games.

(3) "Recreational swimming areas" which are defined generally as fenced areas devoted primarily to swimming, diving, or both. They must also include decks, lawn area, bathhouses, or other facilities developed and used exclusively for swimming and diving and consisting of no less than fifteen (15) square feet of water surface area for each three (3) percent of the population of the subdivision with a minimum of eight hundred (800) square feet of water surface area per pool, together with an adjacent deck and/or lawn area twice that of the pool.

(4) "Recreation buildings and facilities" which means facilities designed and primarily used for the recreational needs of residents of the development. Partial credit may be awarded for sites which do not incorporate the required basic elements or are less than one (1) acre when deemed beneficial to the community by the responsible decision maker.

Because private common areas meet only a portion of resident needs, the computed credit value shall not exceed twenty-five (25) percent of the otherwise required public land dedication or in lieu fees.

The determination of the Planning Commission as to whether credit shall be given and the amount of credit shall be final and conclusive, unless appealed to the City Council. The decision of the City Council is final.

6. Credit for public park and recreational facility improvements.

a) A subdivider may elect to provide improvements to land dedicated for public park or recreational use when a combination of fees and dedications are required. The responsible decision maker may credit the value of the improvements together with any equipment located thereon against the payment of fees or dedication of land required herein.

b) Credit shall not be allowed for single-purpose commercial recreation facilities whether dedicated to the public or in private ownership.

7. Choice of land dedication, improvement, fees, or combination.

a) Procedure. The procedure for determining whether the subdivider is to dedicate, improve, pay a fee, or combination of methods shall be as follows:

(1) At the time of filing a tentative map for approval, the subdivider of the property shall, as a part of such filing, indicate whether the subdivider desires to dedicate property for park and recreational purposes, improve the parkland, pay a fee in lieu thereof, or a combination of the foregoing. If the subdivider desires to dedicate land for this purpose, the subdivider shall designate the area thereof in the tentative map as submitted.

(2) At the time of the tentative map approval, the responsible decision maker shall determine as a part of such approval, whether to require a dedication of land within the subdivision, payment of a fee in lieu thereof, accept improvement, or a combination of such methods.

(3) Where dedication is required, it shall be accomplished in accordance with the provision of the Subdivision Map Act, Subdivision Code, and Subdivision Manual. Where fees are required, the same shall be deposited with the City prior to the approval of the final map. Open space covenants for private park or recreational facilities shall be submitted to the City prior to approval of the final map and shall be recorded contemporaneously with the final map.

b) Determination. When land is proposed to be dedicated, the responsible decision maker shall determine the appropriateness of the land to be dedicated based upon the following:

(1) The conservation/Open Space/Recreation Element of the City's General Plan; and

(2) The topography, geology, access and location of land in the subdivision available for dedication; and

(3) Size and shape of the subdivision and land available for dedication. The determination of the Planning Commission as to whether land shall be dedicated, fees charged, dedicated land improved, or any combination thereof, shall be final and conclusive, unless appealed to the City Council. In no event, may the dedications, amount of fees or value of improvements exceed the subdivider's dedication requirements as set forth in Section 9331.d.2 (Standards and Formula for Land Dedication) unless the subdivider voluntarily agrees. On subdivisions involving fifty (50) lots or less, only the payments of fees shall be required. The determination of the City Council is final.

8. Responsibilities and Enforcement.

a) It is the responsibility of each property owner who proposes to create residential building sites to provide an equitable portion of parklands as required by this Code. Dedications for the provision of parklands and/or the payment of fees shall commence at the earliest possible instance of land development planning. Where parkland is to be provided, such provisions shall be included, where applicable, in zone changes, planned community texts and development plans, tentative and final maps, and conditional use permits.

b) It is the duty of the Director of Parks and Recreation to verify that the requirements of this part are complied with, and to notify all interested parties and agencies of such compliance.

c) It is the duty of the Director of Community Development to enforce the provisions of this part that are applicable to the issuance of a building permit.

d) The Director of Parks and Recreation shall prepare a schedule for approval by the City Council, specifying how and when it will use the land or fees, or both, to develop park and recreation facilities. Fees shall be committed within five (5) years of collection.

e) Any required in-lieu fees for residential development shall be paid on the date of final inspection or certificate of occupancy, whichever occurs first. The City may require fees to be paid at the time of building permit issuance for non-residential development and on residential development (other than low income housing described in Government Code section 66007(b)(2)) if the fees will be used to construct a public improvement for which the City has established an account, the City Council has authorized expenditures from the account and the City has adopted a proposed construction schedule or to reimburse itself for funds already spent on the improvement.

9. Limitation of use of land and fees.

The land and fees received under this section shall be used only for the purpose of providing park and recreational facilities to serve the area from which received, and the location of the land and amount of fees shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision, the community, and the general area from which it is received.

e

Reservations

1. General.

Based on the General Plan, or applicable specific plan, as a condition of approval of a tentative map, the subdivider may be required to reserve sites, appropriate in area and location, for parks, recreational facilities, fire stations, libraries or other public uses according to the standards and formula contained in this section.

2. Standards for Reservation of Land.

Where a park, recreational facility, fire station, library, or other public use is shown on the General Plan or an adopted specific plan, the subdivider may be required by the City to reserve sites as so determined by the City in accordance with the policies and standards contained in the General Plan or the adopted specific plan. The reserved area must be of such size and shape as to permit the balance of the property within which the reservation is located to develop in an orderly and efficient manner.

The amount of land to be reserved shall not make development of the remaining land held by the subdivider economically infeasible. The reserved area shall be consistent with the General Plan or the adopted specific plan and shall be in such multiples of streets and parcels as to penmit an efficient division of the reserved area in the event that it is not acquired within the prescribed period.

3. Procedure.

The public agency for whose benefit an area has been reserved shall, at the time of approval of the final map, enter into a binding agreement to acquire such reserved area within two (2) years after the completion and acceptance of all improvements, unless the period of time is extended by the Director upon mutual agreement.

4. Payment to Subdivider.

The purchase price for the reserved area shall be the market value thereof at the time of the filing of the tentative map plus the taxes against the reserved area from the date of the reservation and any other costs incurred by the subdivider in the maintenance of the reserved area, including interest costs incurred on any loan covering the reserved area.

5. Termination.

If the public agency for whose benefit an area has been reserved does not enter into a binding agreement in accordance with this section, the reservation of the area shall automatically terminate.

f

Local Transit Facilities.

As a condition of approval of a tentative map, the subdivider may be required to dedicate, or make an irrevocable offer of dedication, of land within the subdivision for local transit facilities such as shelters, benches, bus turnouts, landing pads, park-and-ride facilities, and similar items which directly benefit the residents of the subdivision, if (a) the subdivision as shown on the tentative map has the potential for two hundred (200) dwelling units or more if developed to the maximum density shown on the general plan or contains one hundred (100) acres or more, and (b) if the City finds that transit services are or will, within a reasonable time period, be made available to the subdivision. The irrevocable offer may be terminated as provided in subdivisions (c) and (d) of Section 66477.2 of the Subdivision Map Act.

Only the payment of fees in lieu of the dedication of land may be required in subdivisions that consist of the subdivision of airspace in existing buildings into condominium projects, stock cooperatives, or community apartment projects, as those terms are defined in Section 1351 of the Civil Code.

g

Bridges and Major Thoroughfares

1. Purpose. The purpose of this section is to establish provisions for assessing and collecting fees as a condition of approval of a final map or prior to issuing a building permit for the purpose of defraying the actual or estimated cost of constructing bridges or major thoroughfares pursuant to Section 66484 of the Subdivision Map Act, and in order to implement the Circulation Element of the General Plan and, in the case of bridges, the transportation provisions thereof.

2. Definitions. For the purpose of this section, the following words and phrases shall have the following meanings:

a) "Construction" shall mean design, acquisition of right-of-way, administration of construction contracts, actual construction and inspections.

b) "Major thoroughfare" shall mean a roadway as shown on the Circulation Element of the General Plan whose primary purpose is to carry through traffic and provide a network connecting to the state highway system.

3. Payment of Fees Generally.

a) Prior to filing a final map which includes land within an area of benefit established pursuant to this division, the subdivider shall pay or cause to be paid any fees established and apportioned to such property pursuant to this section for the purpose of defraying the actual or estimated cost of constructing bridges over waterways, railways, freeways or canyons or constructing major thoroughfares.

b) At the time a building permit is issued for construction on any property within an area of benefit established pursuant to this section, the applicant for such permit shall pay or cause to be paid any fees established and apportioned pursuant to this section for the purpose of defraying the actual or estimated cost of constructing bridges over waterways, railways, freeways or canyons or constructing major thoroughfares, unless such fees have been paid pursuant to subsection c)(1) of this section.

c) Notwithstanding the provisions of subsections 3.a) and 3.b) of this section:

(1) Payment of bridge fees shall not be required unless the planned bridge facility is an original bridge serving the area or an addition to any existing bridge facility serving the area at the time of adoption of the boundaries of the area of benefit.

(2) Payment of major thoroughfare fees shall not be required unless the major thoroughfares are in addition to, or a reconstruction of, any existing major thoroughfares serving the area at the time of the adoption of the area of benefit.

4. Consideration in Lieu of Fees. Upon application by the subdivider or applicant for a building permit, the City Council may accept consideration in lieu of the payment of fees required pursuant to this section; provided that the City Council first finds, upon recommendation of the City Engineer, that the substitute consideration has a value equal to or greater than the fee; and provided further that the substitute consideration is in a form acceptable to the City Council.

5. Public Hearing. Prior to establishing an area of benefit, a public hearing shall be held by the City Council at which time the boundaries of the area of benefit, the costs, whether actual or estimated, and a fair method of allocation of costs to the area of benefit and fee apportionment, and the fee to be collected, shall be established. Notice of the public hearing shall be given consistent with the provisions of Government Code Section 65091 and shall include preliminary information related to the boundaries of the area of benefit, estimated cost and the method of fee apportionment.

6. Amount. The amount of fees and the areas of benefit established pursuant to this section may be established by resolution of the City Council.

7. Exemptions. Notwithstanding the provisions of subsection 6, payment of such fees shall not be required for:

a) The use, alteration or enlargement of an existing building or structure or the erection of one (1) or more buildings or structures accessory thereto, or both, on the same lot or parcel of land; provided that the total value, as determined by the Building Official, of all such alteration, enlargement or construction completed within any one (1) year period does not exceed one-half (½) of the current market value, as determined by the Building Official, of all existing buildings on such lot or parcel of land, and the alteration or enlargement of the building is not such as to change its classification of occupancy as defined by applicable sections of the California Building Code.

b) The following accessory buildings and structures: private garages, children's playhouses, radio and television receiving antennas, windmills, silos, tank houses, shops, barns, coops and other buildings which are accessory to one-family or two-family dwellings.

8. Protest.

a) At any time not later than the hour set for hearing objections to the proposed bridge facility or major improvement, any person may file a protest against the proposed bridge facility or major thoroughfare or against the extent of the area to be benefitted by the improvements or against both of them. Such protests must be in writing and must contain a description of the property in which each signer thereof is interested, sufficient to identify such property, and, if the signers are not shown on the last equalized assessment roll as the owners of such property, must contain or be accompanied by written evidence that such signers are the owners of such property. All such protests shall be delivered to the City Clerk and no other such protests shall be considered. Any protest may be withdrawn, in writing, by the owners making such protests, at any time prior to the conclusion of the public hearing.

b) If there is a written protest filed with the City Clerk by the owners of more than one-half (½) of the area of the property to be benefitted by the improvement, and sufficient protests are not withdrawn so as to reduce the area represented to less than one-half (½) of that to be benefitted, then the proposed proceedings shall be abandoned, unless by a four-fifths vote of all the members of the City Council the protest shall be overruled; and the City Council shall not, for one (1) year from the filing of that written protest, commence or carry on any proceedings for the same improvement, or that portion thereof so protested against, under the provisions of this section.

h

Supplemental Improvement Capacity

1. As a condition of approval of a tentative map, there may be imposed a requirement that improvements installed by the subdivider for the benefit of the subdivision contain supplemental size, capacity, number or length for the benefit of property not within the subdivision and that those improvements be dedicated to the public. However, when such supplemental size, capacity, number or length is solely for the benefit of property not within the subdivision, the City shall, subject to the provisions of Sections 66486 and 66487 of the Subdivision Map Act, enter into an agreement with the subdivider to reimburse the subdivider for that portion of the cost of such improvements equal to the difference between the amount it would have cost the subdivider to install such improvements to serve the subdivision only and the actual cost of such improvements.

2. The City Council shall determine the method for payment of the costs required by a reimbursement agreement, which method may include, but shall not be limited to, the following:

a) The collection from other persons, including public agencies, using such improvements for the benefit of real property not within the subdivision, of a reasonable charge for such use.

b) The contribution to the subdivider of that part of that cost of the improvement(s) that is attributable to the benefit of real property outside the subdivision and the levy of a charge upon the real property benefitted to reimburse the City for such costs, together with interest thereon, if any, paid to the subdivider.

c) The establishment and maintenance of local benefit districts for the levy and collection of such charge or costs from the property benefitted.

3. No charge, area of benefit or local benefit district shall be established unless and until a public hearing is noticed and held thereon by the City Council in accordance with the provisions of Government Code Section 65091 and the City Council finds that the charge, area of benefit or local benefit district is reasonably related to the cost of such supplemental improvements and the actual ultimate beneficiaries thereof.

4. In addition to the notice required by Government Code Section 65091, written notice of the hearing shall be given to those who own property within the proposed area of benefit as shown on the last equalized assessment roll, and the potential users of the supplemental improvements insofar as they can be ascertained at the time.

i

Drainage Fees [Reserved]

j

Solar Access Easements [Reserved]

k

Interim School Facilities

1. Authority, Purpose and Intent.

a) This section is enacted pursuant to the authority of Section 65970 et seq. of the Government Code for the purpose of providing interim school facilities to alleviate conditions of overcrowding caused by new residential development.

2. [Reserved]

3. Action by School Districts. The governing body of an affected School District(s) may, from time to time, adopt a notice of findings and file the same with the City Clerk for consideration by the City Council that makes both of the following findings supported by clear and convincing evidence:

a) That conditions of overcrowding exist in one or more attendance areas within the district which will impair the normal functioning of educational programs including the reason for the existence of those conditions.

b) That all reasonable methods of mitigating conditions of overcrowding have been evaluated and no feasible method for reducing those conditions exists.

The notice of findings shall specify the mitigation measures considered by the school district, including a completed application to the Office of Public School Construction for preliminary determination of eligibility under the Leroy F. Greene State School Building Lease-Purchase Law of 1976, and include a schedule for land use of fees required by Section 65976 of the Government Code.

4. Action by City Council. The notice of findings and schedule for land use of fees shall be made available to the public for 60 calendar days after the date of receipt by the City. Following the completion of the public review period but not later than 150 calendar days of the receipt of the notice of findings and schedule for land use of fees, the City Council shall either concur or not concur, or may extend the period to concur or not to concur for one 30-day period. Failure to act within the prescribed time period shall not be deemed as an act of City Council concurrence in the notice of findings. If it concurs in the notice of findings, the City Council shall not approve an ordinance rezoning property to a residential use, grant a discretionary permit for residential use, or approve a tentative subdivision map for residential purposes, unless the City Council makes one of the following findings:

a) That there are specific overriding fiscal, economic, social, or environmental factors which in the judgment of the City Council would benefit the City, thereby justifying the approval of a residential development; or,

b) That the dedication of land, the payment of fees in lieu thereof, or a combination of both, for classroom and related facilities for elementary or high schools are being required as a condition to the approval of a residential development, in accordance with the provisions of Section 65974 of the Government Code.

The decision concerning whether to require the dedication of land, payment of fees of an appropriate combination shall be determined after consultation with the affected school district(s) concerning the needs of the school district(s) as they relate to the impacted school or schools.

The amount of any fee shall be in accordance with the provisions of Chapter 4.9 (commencing with Section 65995) of the Government Code, and shall be prescribed by resolution of the City Council, and shall be collected at the time of issuance of a building permit.

5. Use of Fees and Land-Accounting.

a) The school districts shall use the land and/or fees solely to alleviate the conditions of overcrowding within the affected attendance area.

The school districts shall annually provide to the City Council the report required by Section 65978 of the Government Code. If the report has not been filed as required, there shall be a waiver of any performance of the payment of fees or the dedication of land. If it is determined that overcrowding conditions no longer exist, or the period of time for the dedication of land or the payment of fees has been completed, the City of Tustin shall cease levying any fee or requiring the dedication of any land pursuant to the Subdivision Map Act, Subdivision Code, and Subdivision Manual.

6. City's Right to Disapprove Development or Require Other Fees. Nothing in this section shall be construed to limit the right of the City to disapprove new residential development for any lawful reason, including, but not limited to, the impact that such development may have on a school or schools within the school districts which cannot be alleviated by the provisions of this section.

l

Permanent Classroom Facilities

The City may not require, as a condition of approval of a tentative map for a residential subdivision, dedication of land or payment of in-lieu fees or a combination of both in order to provide permanent facilities for school purposes. Nothing in this chapter is intended as a limitation on the school districts' authority to directly levy a fee, charge, dedication or other form of requirement against any development project, pursuant to Section 53080 of the Government Code, in order to provide temporary and permanent facilities for school purposes.

m

Reimbursement to a Telephone Corporation or Cable Television System for Undergrounding or Relocation

Whenever the City imposes as a condition to its approval of a tentative map a requirement that necessitates replacing, undergrounding, or permanently or temporarily relocating existing facilities of a telephone corporation or cable television system, the subdivider shall reimburse the telephone corporation or cable television system for all costs for the replacement, undergrounding, or relocation. All of these costs shall be billed to the subdivider directly by the telephone corporation or cable television system after they are incurred, and shall include a credit for any required advance payments and for the salvage value of any facilities replaced. In no event shall the telephone corporation or cable television system be reimbursed for costs incurred in excess of the cost to replace the facilities with substantially similar facilities. In no event shall the City be obligated to pay such reimbursement.

(Ord. No. 1430, Sec. 2, 9-17-13)

a

General

The subdivider shall construct all required improvements, both on and off-site, in accordance with the standard engineering specifications and other approved standards as provided by this chapter and by the City Council's resolution or resolutions establishing such standards.

No final map shall be approved by the Director until the subdivider either completes the required improvements, or enters into an agreement with the City agreeing to do the work.

b

Required Improvements

1. General. All improvements as may be required as conditions of approval of the tentative map or by City ordinance or resolution, together with, but not limited to, the required improvements set forth below shall be required of all subdivisions. Requirements for construction of on-site and off-site improvements for subdivisions of four (4) or less parcels shall be noted in the parcel map, or waiver of parcel map or the subdivision improvement agreement recorded prior to or concurrent with the parcel map. Completion of improvements shall be in accordance with 9332.k (Completion of Improvements).

2. Frontage Improvements. The frontage of each lot shall be improved to its ultimate adopted geometric section, including street structural section, curbs, sidewalks, driveway approaches and transitions.

3. Storm Drainage. Stormwater runoff from the subdivision shall be collected and conveyed by an approved storm drain system. The storm drain system shall be designed for ultimate development of the watershed and shall be capable of collecting and conveying runoff generated by a 100-year flood. The storm drain system shall provide for the protection of abutting and off-site properties that would be adversely affected by any increase in runoff attributed to the development. Off-site storm drain improvements may be required to satisfy this requirement.

4. Sanitary Sewers. Each unit or lot within the subdivision shall be served by an approved sanitary sewer system in accordance with the applicable provisions of this Code.

5. Utilities. Each unit or lot within the subdivision shall be served by gas, electric, telephone and cablevision facilities.

6. Underground Utilities. The provisions of this Subsection are in addition to, and not a substitute for other underground provisions of this Code.

a) All existing and proposed utilities within the subdivision and along peripheral streets shall be placed underground except those facilities exempted by Public Utilities Commission regulations. Undergrounding shall be required for overhead lines on either side of peripheral streets.

b) The subdivider may request that the undergrounding requirement along peripheral streets be waived. The City Engineer may, at his or her discretion, accept a fee in lieu of the undergrounding upon a determination that the amount of the fee is based upon the reasonable estimated cost of that portion of a future undergrounding project attributable to the subdivision. The requirement for undergrounding or payment of an in-lieu fee shall be a condition of approval of the tentative map. Any failure to include said condition shall not be deemed as an act of the City Council to waive the requirement, except as provided in Section 9332b6(c).

c) Undergrounding requirements may be waived or modified by the City Council only upon finding:

(1) The subdivision is within an area where existing utilities have not been undergrounded and that deferral will be allowed since undergrounding is impractical due to physical constraints, or the surrounding neighborhood is absent of similar improvements; and

(2) Overhead utilities will have no significant visual impact.

d) If the undergrounding requirements are waived as allowed by findings c)(1) and (2) above, the in-lieu fee as established by the City Engineer shall be made a condition of approval of the tentative map.

e) In-lieu fees shall be deposited in a special undergrounding account to be used as approved by the City Council for future undergrounding of utilities throughout the City.

7. Fencing. Each parcel or lot within the subdivision that is adjacent to property containing a public facility shall have an approved fence or wall adequate to prevent unauthorized access between properties.

8. Other Improvements. Other improvements including, but not limited to, grading, street lights, traffic signals, fire hydrants, signs, street lines and markings, street trees and shrubs, landscaping, monuments, bicycle facilities and fences, or fees in lieu of any of the foregoing, shall also be required as determined by the City Engineer in accordance with this Code, the General Plan and the City standards and specifications.

9. Off-Site Improvements. If the subdivider is required to construct off-site improvements on land in which neither the subdivider nor the City has sufficient title or interest to allow construction, the City shall, within one hundred twenty (120) calendar days of recording the final map, acquire by negotiation or commence condemnation of the land. If the City fails to meet the one hundred twenty (120) calendar day time limit, the condition for the construction shall be waived. Prior to approval of the final map, the City may require the subdivider to enter into an agreement to complete the off-site improvements at the time the City acquires title or an interest in the land.

The subdivider shall pay the cost of acquiring off-site land or an interest in the land required to construct the off-site improvements.

c

Deferred Improvement Agreements

1. Subdivisions of Four (4) of Less Parcels. The frontage improvements along peripheral streets may be deferred when deemed necessary by the City Engineer. When improvements are deferred, the subdivider and/or the owner of the real property shall enter into an agreement with the City, in a form acceptable to the City Engineer and City Attorney, for the installation of all frontage improvements at a time in the future specified in the agreement. The agreement shall provide for the following:

a) Construction of improvements shall commence within ninety (90) calendar days of the receipt of the notice to proceed from the City and shall be completed within the time specified by Section 9332.k.

b) That in the event of a default by the subdivider and/or owner, the City is authorized to cause construction to be done and charge the entire cost and expense to the subdivider and/or owner, including interest from the date of notice of said cost and expense until paid.

c) That the agreement shall be recorded with the County Recorder at the expense of the subdivider and/or owner and shall constitute notice to all successors and assigns of title to the real property of the obligations set forth therein, and shall also constitute a lien in such amount necessary to fully reimburse the City, including interest as provided above, subject to foreclosure in the event of a default in payment.

d) That in event of litigation occasioned by any default of the subdivider and/or owner, the subdivider and/or owner agree to pay all costs incurred by the City, in successfully enforcing the obligation, including reasonable attorney's fees, and that the same shall become a part of the lien against the real property.

e) The terms "subdivider" and "owner" shall include, respectively, not only the subdivider and the present owner of the real property but also heirs, successors, executors, administrators and assigns thereof, it being the intent of the parties that the obligations undertaken shall run with the real property and constitute a lien against it.

f) Any other improvement security as required by Section 9332h.

g) Any other provisions required by the City as reasonably necessary to effectuate the purposes and provisions of the Subdivision Map Act and this Code.

The agreement shall not relieve the subdivider or owner from any other specific requirements of the Subdivision Map Act, this Code or law. The construction of deferred improvements shall conform to the provisions of this chapter and all applicable articles of this code in effect at the time of construction.

2. Remainders. Where a remainder is made part of a final map, the subdivider may enter into an agreement with the City to construct improvements within the remainder at some future date and prior to the issuance of a permit or other grant of approval for the development of a remainder. The improvements shall be at the subdivider's expense. In the absence of such an agreement, the City may require fulfillment of the construction requirements within a reasonable time following approval of the final map and prior to the issuance of a permit or other grant of approval for the development of the remainder, upon finding that fulfillment of the construction requirements is necessary for reasons of:

a) The public health and safety, or

b) The required construction is a necessary prerequisite to the orderly development of the surrounding area.

d

Design

1. General. The design and layout of all required improvements, both on-site and offsite, private and public, shall conform to generally accepted engineering standards, standard engineering specifications, and Subdivision Map Act and applicable provisions of this code.

2. Energy Conservation. The design of a subdivision for which a tentative map is required shall provide, to the extent feasible, for future passive or natural heating or cooling opportunities in the subdivision.

Examples of passive or natural heating opportunities in subdivision design include design of lot size and configuration to permit orientation of a structure in an east-west alignment for southern exposure and to permit orientation of a structure to take advantage of shade or prevailing breezes.

In providing for future passive or natural heating or cooling opportunities in the design of a subdivision, consideration shall be given to local climate, contour, configuration of the parcel to be divided, and other design improvement requirements. The provision shall not result in reducing allowable densities, or the percentage of a lot which may be occupied by a building or structure under applicable planning and zoning in force at the time the tentative map is filed.

The requirements of this subsection do not apply to condominium projects which consist of the subdivision of airspace in an existing building and no new structures are added.

For the purpose of this subsection, "feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social and technological factors.

3. Cable Television Service. The design of a subdivision for which a tentative map is required shall provide one (1) or more City franchised cable television systems an opportunity to construct, install and maintain, on land identified on the map as dedicated or to be dedicated to public utility use, any equipment necessary to extend cable television services to each parcel in the subdivision.

This subsection shall not apply to the conversion of existing dwelling units to condominiums, community apartments, or stock cooperatives.

e

Access

All lots or parcels created shall have direct access to a public street improved to the standards set forth in this article. Private streets shall not normally be permitted. However, if the responsible decision maker determines that the most logical development of the land requires that lots be created with access to private streets, such a development may be approved. The subdivider shall submit a development plan showing the alignment, width, grade, and material specifications of any proposed public or private street, the topography and means of access to each lot, and the drainage, sewer and water service and fire protection for the lots served by such private street(s). Private street(s) shall be constructed in accordance with standard engineering specifications and any other applicable plans and specifications of the City as approved by the Director of Community Development. Construction of private street(s) shall be completed prior to the completion of the construction and/or occupancy of the lots. The subdivider shall be required to provide a feasible method for the maintenance of such private streets, which method shall be subject to the prior approval of the Director of Community Development.

Reserved strips, or non-access at the end of streets or at the boundaries of subdivisions, shall be dedicated unconditionally to the City when required by the City.

f

Improvement Plans

Improvement plans shall be prepared under the direction of and must be signed and sealed by a registered civil engineer licensed by the State of California. Improvement plans shall include, but shall not be limited to, all improvements required pursuant to Section 9332b. The form of all plans shall conform to all requirements identified in the Subdivision Manual and as may be established by the City Engineer. The final form of all plans shall be approved by the City Engineer.

g

Improvement Security

1. Any improvement agreement, contract or act required or authorized by the Subdivision Map Act or this chapter, for which security is required, shall be secured in accordance with Section 66499 et seq. of the Subdivision Map Act and as provided below.

No final map shall be signed by the City Engineer or recorded until all improvement securities required by this section have been received and approved.

2. The form of security shall be one (1) or the combination of the following at the option and subject to the approval of the City Engineer:

a) Bond or bonds by one (1) or more duly authorized corporate sureties in the form prescribed by the Subdivision Map Act.

b) A deposit, either with the City or a responsible escrow agent or trust company, at the option of the City Engineer, of money or negotiable bonds of the kind approved for securing deposits of public monies.

c) Any other form of security, at the option of the City Engineer, as provided in the Subdivision Map Act.

3. Amount of Security. A performance bond or other security in the amount of one hundred percent (100%) of the total estimated construction cost to guarantee the construction or installation of all improvements shall be required of all subdivisions. An additional amount of fifty percent (50%) of the estimated construction cost shall be required to guarantee payment to subdivider's contractor, subcontractors, and to persons furnishing labor, materials or equipment for the construction or installation of improvements. As a part of the obligation guaranteed by the security and in addition to the full amount of the security, there shall be included costs and reasonable expenses and fees, including attorneys' fees, incurred by the City in enforcing the obligations secured. The surities on the performance bond and payment bond shall not be the same.

The estimate of improvements costs shall be as approved by the City Engineer and shall provide for:

a) Not less than five percent (5%) nor more than ten percent (10%) of the total construction cost for contingencies.

b) Increase for projected inflation computed to the estimated midpoint of construction.

c) All utility installation costs or a certification acceptable to the City Engineer from the utility company that adequate security has been deposited to ensure installation.

4. Warranty Security. Upon acceptance of the subdivision improvements by the City, the subdivider shall provide security in the amount as required by the City Engineer to guarantee the improvements against any defective work or labor done or defective materials used in the performance of the improvements throughout the warranty period which shall be the period of one (1) year following acceptance of the improvements. The amount of the warranty security shall not be less than ten percent (10%) of the cost of the construction of the improvements, including the cash bond which shall be retained for the one (1) year warranty period.

5. Reduction in Performance Security. The City Engineer may authorize in writing the release of a portion of the security in conjunction with the acceptance of the satisfactory completion of a part of the improvements as the work progresses upon application by the subdivider, but in no case shall the security be reduced to less than ten percent (10%) of the total improvement security given for faithful performance. The amount of reduction of the security shall be determined by the City Engineer; however, in no event shall the City Engineer authorize a release of the improvement security which would reduce security to an amount below that required to guarantee the completion of the improvements and any other obligation imposed by the Subdivision Map Act, this code or the improvement agreement.

6. Release of Improvement Security

a) The performance security shall be released only upon acceptance of the improvements by the City Engineer and when an approved warranty security has been filed with the City Engineer. If a warranty security is not submitted, performance security shall be released twelve (12) months after acceptance of improvements and correction of all warranty deficiencies.

b) Security given to secure payment to the contractor, subcontractors and to persons furnishing labor, materials or equipment may, six (6) months after the completion and acceptance of the improvements by the City Engineer, be reduced to an amount equal to one hundred twenty-five percent (125%) of the amount of all claims therefore filed with 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) The warranty security shall be released upon satisfactory completion of the warranty period, provided:

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

(2) Not less than twelve (12) months have elapsed since the acceptance of the improvements by the City Engineer.

h

[Reserved]

i

Construction and Inspection

The construction methods and materials for all improvements shall conform to the standard engineering specifications and all other standard plans and specifications of the City.

Construction shall not commence until all required improvement plans have been approved. All improvements are subject to inspection in accordance with the City's approved specifications.

j

Completion of Improvements

1. Subdivisions of Five or More Parcels. The improvements for subdivisions of five (5) or more parcels shall be completed by the subdivider within twelve (12) months, or such later time as approved by the City Engineer, not to exceed thirty-six (36) months, from the recording of the final map, unless an extension is granted by the responsible decision maker.

Should the subdivider fail to complete the improvements within the specified time, the City may, by resolution of the responsible decision maker and at its option, cause any or all uncompleted improvements to be completed and the parties executing the security or securities shall be firmly bound for the payment of all necessary costs.

2. Subdivision of Four or Less Parcels. The completion of improvements for subdivisions of four (4) or less parcels shall not be required until a permit or other grant of approval for the development of any parcel within the subdivision is applied for. The completion of the improvements may be required by a specified date by the City when the completion of the improvements are found to be necessary for the public health or safety or for the orderly development of the surrounding area. This finding shall be made by the City Engineer or authorized representative. The specified date, when required, shall be stated in the subdivision improvement agreement. Improvements shall be completed prior to final building inspection or occupancy of any unit within the subdivision.

3. Extensions. The completion date may be extended by the responsible decision maker upon written request by the subdivider and the submittal of adequate evidence to justify the extension. The request shall be made not less than thirty (30) calendar days prior to expiration of the subdivision improvement agreement.

The subdivider shall enter into a subdivision improvement agreement extension with the City.

In consideration of a subdivision improvement agreement extension, the following may be required:

a) Revision of improvement plans to provide for current design and construction standards when required by the City Engineer;

b) Revised improvement construction estimates to reflect current improvement costs as approved by the City Engineer;

c) Increase of improvement securities in accordance with revised construction estimates;

d) Inspection fees may be increased to reflect current construction costs but shall not be subject to any decrease or refund.

The responsible decision maker may impose additional requirements as recommended by the City Engineer or as it may deem necessary as a condition to approving any time extension for the completion of improvements.

The costs incurred by the City in processing the agreement shall be paid by the subdivider at actual cost plus twenty-five percent (25%) of such cost for overhead expenses.

4. As-Built Plans. Revisions for as-built drawings are to be made in the Engineering Division offices. The subdivider or engineering representative may request duplicate mylars for the subdivider's use.

k

Acceptance of Public Improvements

1. With respect to all subdivisions, when all improvement deficiencies have been corrected and as-built improvement plans submitted, the completed subdivision public improvements shall be considered by the City Engineer for acceptance. Acceptance of the improvements shall imply only that the improvements have been completed satisfactorily and that public improvements have been accepted for public use.

2. Acceptance. If the subdivision improvements have been accepted by the City Engineer and public improvements have been dedicated on the final map, the City Clerk shall file an acceptance of public improvements with the County Recorder.

3. Acceptance of a Portion of the Improvements. When requested by the subdivider in writing, the City Engineer may consider acceptance of a portion of the improvements. Such improvements will be accepted by the City Engineer only if the City Engineer finds that it is in the public interest to do so and such improvements are for the use of the general public.

Acceptance of a portion of the improvements shall not relieve the subdivider from any other requirements imposed by this article.

(Ord. No. 1430, Sec. 2, 9-17-13)

a

General

The provisions of this chapter shall be enforced by the Director in accordance with the provisions of the Subdivision Map Act and the Subdivision Manual, as applicable.

b

Certificate of Compliance

1. Any person owning real property or a vendee of such person pursuant to a contract of sale of such real property may request the Director to determine whether the real property complies with the provisions of the Subdivision Map Act, the Subdivision Code, and the Subdivision Manual.

2. If it is determined that the real property complies with the provisions of the Subdivision Map Act and the Subdivision Code, the Director shall file a Certificate of Compliance with the County Recorder. The Certificate of Compliance shall identify the real property and shall state that the division thereof complies with the provisions of the Subdivision Map Act, the Subdivision Code, and the Subdivision Manual.

3. If it is determined that the real property does not comply with the provisions of the Subdivision Map Act, the Subdivision Code, or the Subdivision Manual, the Director may, as a condition to granting a Certificate of Compliance, impose conditions to ensure compliance. Upon the making such determination and establishing such conditions, the Director shall file a Conditional Certificate of Compliance with the County Recorder.

Such certificate shall serve as notice to the property owner or vendee who has applied for the certificate, a grantee of the property owner, or any subsequent transferee or assignee of the property, that fulfillment and implementation of such conditions shall be required prior to subsequent issuance of a permit or other grant of approval for development of the property.

4. A recorded final map shall constitute a certificate of compliance with respect to the parcels of real property described therein.

5. Subject to the provisions of Section 66499.35(e) of the Subdivision Map Act, an official map prepared pursuant to Section 66499.52(b) of the Subdivision Map Act shall constitute a certificate of compliance with respect to the parcels of real property described therein.

c

Indemnification/Action Against Map Approvals

In accordance with the provisions of Government Code Section 66474.9(b), the subdivider shall defend, indemnify and hold harmless the City, its officers, employees and agents from any claim, action, or proceeding to attack or set aside the map approval.

(Ord. No. 1430, Sec. 2, 9-17-13)