§ 17.64

The subdivider shall agree to make improvements installed to permanent line and grade as shown on the plans prepared for the subdivision and approved by the city engineer. The improvements shall be installed to the satisfaction of the city engineer and in accordance with the provisions of this title and the Standard Specifications for Public Improvements on file in the office of the city clerk and in accordance with the conditions of approval of the tentative map. All such improvements shall be made at the expense of the subdivider. The construction and placing of public improvements shall not be commenced before the map of the subdivision is approved. The improvements which the subdivider shall agree to make prior to approval and final acceptance for recordation of the final subdivision map or parcel map by the city as provided in this title shall include but are not limited to, the following:

(1)

Street grading, installation of curbs and gutters, provisions for drainage and construction of drainage structures necessary to the proper use and drainage of the streets and/or to the public safety, convenience and protection of property;

(2)

Paving of streets, paths and alleys as required;

(3)

Provision for a water system with mains of sufficient size and having a sufficient number of outlets to furnish adequate potable water supply to each lot of the subdivision in accordance with the Standard Specifications for Public Improvements of the city with sufficient fire hydrants, gated connections and appurtenances to provide adequate fire protection in accordance with the standard specifications;

(4)

Sanitary sewer facilities and connections for each lot to a sewage system approved by the city engineer and to the extent it is engineeringly and economically feasible as determined by the planning commission;

(5)

An approved type of street lighting system;

(6)

Installation of street signs as required;

(7)

Installation of a system of monuments conforming to this title and as approved by the city engineer;

(8)

Installation of electric utility service facilities to each lot within the subdivision;

(9)

Arrangements for the installation of any lines and/or other equipment necessary to extend cable television service for every CATV franchise authorized by the city to serve the subdivision to each residential parcel in the subdivision pursuant to the provisions of Section 17.64.030 (b). All costs associated with such installations and equipment shall be the responsibility of any franchised cable television franchisee.

(10)

Subdivider shall relocate or cause to be relocated all existing utility facilities required to be relocated as a result of the construction of improvements set forth in subsections (1) through (9) of this section.

(Ord. 1523 § 1, 1991: Ord. 999 § 1 (part), 1985)

(a)

Services from public utilities and from sanitary sewers shall be made available for each lot in such a manner as will obviate the necessity for disturbing the street pavement, gutter and curb when installed or when service connections are made.

(b)

The words "made available" mean that the utility or sanitary sewer is located within the parkway area between the curbline or future curbline and the street right-of-way line adjacent to the lots being served or located in the easement within the lots being served or if the utility or sanitary sewer is located within the improved street area, service laterals shall be extended to a point between the back side of a curb or future curb and the street right-ofway line adjacent to the lots being served. Such extension shall be made before installation of the street improvements. Such utility and sanitary sewer service lateral extensions or installations shall make provisions for existing or future sidewalk installation and shall conform to the Standard Specifications for Public Improvements. Such utility and sanitary sewer laterals shall be extended to the right-of-way line where such facilities are located in alleys.

(c)

Public utilities, sanitary sewers and domestic water service shall be designed, located, elevated and constructed to minimize or eliminate flood damage and adequate drainage shall be provided to reduce exposure to flood hazards. New or replacement sanitary sewage systems and water supply systems are to be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters. Any onsite waste disposal systems shall be located to avoid impairment of them by flood waters or contamination of flood waters by such systems during floods.

(Ord. 999 § 1 (part), 1985)

(a)

Utility lines, including, but not limited to, electric, communication, street lighting and cable television shall be required to be placed underground. The subdivider is responsible for complying with the requirements of this section and he shall make the necessary arrangement with the utility companies for the installation of such facilities. For the purpose of this section, appurtenances and associated equipment such as, but not limited to, surface-mounted terminal boxes and meter cabinets, concealed ducts, in an underground system may be placed aboveground. The planning commission or the city council may waive the requirement of this section if topographical, soil or any other conditions make such underground installations unreasonable or impractical.

(b)

Franchised Cable Television Systems Access. Subdivisions for which a tentative map or a parcel map is required shall provide cable television systems franchised by the city 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 residential parcel in the subdivision. The subdivider shall be responsible for and make arrangements to provide an open and adequate utility trench for all utilities, including cable television and shall give notice to all utilities, as provided hereinafter, including cable television, when the trench, or any portion thereof, is available and provide notice for the installation for such utility. The subdivider shall provide a minimum of two weeks written notice to all utilities when the trench, or any portion thereof, is available. Such notice shall be in writing, certified mail, return receipt requested, and a copy mailed by first class mail. Beginning on the date that such utility trench is opened for all utilities, the trench, or any portion thereof, shall remain open not less than five consecutive days. Any entity which utilizes any trench, or any portion thereof, shall maintain in full force and effect one or more policies of liability insurance with coverage of not less than one million dollars relating to said trench. Proof of insurance must be provided to the subdivider upon request.

(c)

This section shall not apply to utility lines which do not provide service to the area being subdivided.

• (Ord. 1523 § 2, 1991: Ord. 1360 § 1, 1989; Ord. 999 § 1 (part), 1985)

Improvement plans prepared under the direction of a registered civil engineer licensed by the state shall be submitted by the subdivider to the city engineer. The approval of the improvement plans by the city engineer shall be a condition of approval of the final or parcel map. The following shall be submitted to the city engineer:

(1)

The plans, profiles and specifications of all improvements required by the provisions of this title, the conditions of approval of the tentative map, as well as of other improvements proposed to be installed by the subdivider in, over or under any street, or right-of-way, easement or parcel of land within or outside the boundaries of the subdivision.

(2)

A grading plan showing all earth fills of twelve inches or more and grading specifications. Specifications for grading shall provide for all grading requirements set forth in the preliminary soils report for the subdivision and off-site improvements.

(Ord. 999 § 1 (part), 1985)

If, at the time of acceptance for recordation of a final or parcel map by the city, any of the improvements as set forth in Section 17.64.010 of this chapter required as a condition of approval of the final or parcel map pursuant to the provisions of the Subdivision Map Act and this title have not been completed and accepted in accordance with the provisions of this title, the city council as a condition precedent to the approval of the final map or parcel map shall require the subdivider to enter into one of the type of agreements specified by the city council and as set forth in the Subdivision Map Act. The agreement may provide for the improvements to be installed in units, for extension of time under specified conditions, and for the termination of the agreement upon a reversion of the subdivision or a part thereof to acreage.

(Ord. 999 § 1 (part), 1985)

(a)

The improvement agreement referred to in section 17.64.050 of this chapter shall be secured by one or more of the following:

(1)

A bond or bonds by one or more duly authorized corporate sureties substantially in the form prescribed by the Subdivision Map Act;

(2)

A deposit either with the city or a responsible escrow agent or trust company approved by the city of cash or negotiable bonds of the kind approved for securing deposits of its public moneys;

(3)

An irrevocable instrument of credit from one or more responsible financial institutions regulated by federal or state government and pledging that the funds are on deposit and guaranteed for payment on demand by the city;

(4)

Separate bonds or one of the other forms of securities listed above, as approved by the city engineer, to secure water and other utility related improvements.

(b)

The improvement security shall be provided in the amount of:

(1)

One hundred percent of the total estimated cost of the improvement or act to be performed conditioned upon the faithful performance of the act or agreement;

(2)

Fifty percent of the total estimated cost of the improvement or act to be performed securing payment to the contractor, the subcontractors and to the persons furnishing labor, materials or equipment to them for the improvement or the performance of the required act;

(3)

The amount determined by the city council necessary to guarantee or warranty the work for a period of one year following completion or acceptance thereof against any defective work or labor done or defective materials furnished;

(4)

If the improvement security is other than a bond or bonds furnished by a duly authorized corporate surety, an additional amount shall be included as directed by the city council as necessary to cover the cost and reasonable expenses and fees, including reasonable attorneys' fees which may be incurred by the city in successfully enforcing the obligations secured. The improvement security shall also secure the faithful performance of any changes or alterations in the work to the extent that such changes or alterations do not exceed ten percent of the original estimated cost of the improvement.

(c)

In the event the required subdivision improvements are financed and installed pursuant to special assessment proceedings, the subdivider may apply to the city council for a reduction in the amount of the improvement security required under this chapter up to an amount corresponding to the amount of faithful performance and labor and material bonds required by the special assessment act being used. The city council may grant such reduction if it finds that such bonds have been, in fact, provided and that the obligation secured thereby is substantially equivalent to that required by this title.

(Ord. 1487 § 1, 1991; Ord. 999 § 1 (part), 1985)

(Ord. No. 2257, § 2, 3-16-10; Ord. No. 2268, §§ 2, 3, 1-4-11; Ord. No. 2365, § 2, 5-16-17; Ord. No. 2398, § 2, 1119-19)

17.64.065 - Lien agreements as security.

(a)

The subdivider/property owner ("subdivider") may, in lieu of posting a security described in section 17.64.060(a) of this chapter, enter into an agreement with the city to construct in the future the public portions of the subdivision improvements required by the map conditions of approval and/or section 17.64.010 of this chapter, (hereinafter "required improvements") and securing such performance by granting the city a lien on the real property to be divided. Such agreements shall be known as "lien agreements." The use of lien agreements shall only be allowed if all requirements in this section 17.64.065 are satisfied.

(b)

Government Code Section 66499(a)(4) authorizes the city to enter into lien agreements only if the city council finds that it would not be in the public interest to require the installation of the required improvements sooner than two years after the recordation of the map.

(c)

Where the city council finds it would not be in the public interest to require the installation of the required improvements sooner than two years after recordation of the map, the subdivider may execute a lien agreement with the city at the time the subdivider enters into the improvement agreement specified in section 17.64.050 of this chapter (hereinafter the "subdivision improvement agreement").

(d)

At the sole discretion of the city, a lien agreement may be used to substitute an existing security furnished under section 17.64.060(a) for required improvements under a previously-executed subdivision improvement agreement, if: (i) no activity for the subdivision has transpired; (ii) no inspections have occurred; (iii) no permits for construction of improvements have been issued within one year of the recordation of the subdivision map; and (iv) upon a finding by the city council that it would not be in the public interest to require the installation of the required improvements sooner than two years after the recordation of the map.

(1)

The city will not accept a lien agreement from any subdivider, either at the time of execution of the subdivision improvement agreement, or as a substitute for existing security, if: (i) any individual lots have been sold; (ii) any construction permits, including but not limited to any grading or building permits, have been issued on any of the property; or (iii) construction of any of the Required Improvements has begun.

(2)

Notwithstanding the provisions of section 17.64.065(d)(1) above, the city may accept a lien agreement from a subdivider as a substitute for an existing security if grading has commenced on the land divided, so long as the grading is in strict accordance with a valid grading permit and all the following conditions are met:

A.

There is no need for the city to construct the required improvements if the subdivider's project is abandoned or delayed for any period of time;

B.

The grading has no effect on the use, operation and maintenance of existing streets or highways, public or private;

C.

The grading has not caused the modification or closure of any public access points, existing streets or highways, public or private;

D.

Additional drainage improvements and/or erosion controls are not necessary and/or installed in the road right-ofway due to the grading;

E.

Delay of the construction of the subdivider's required improvements do not affect or delay the improvements of an adjacent subdivider who has already commenced work on his/her required improvements;

F.

The completion of any public improvements are not required by the city's general plan circulation element, master plan of drainage, master sewer plan or master water plan or for any other reason for the purposes of preserving public health, safety or welfare;

G.

The subdivider provides a separate security as specified in section 17.64.060(a)(2) above, for the maintenance of the graded land, including without limitation, dust control, erosion control, fencing, and any other maintenance as required by the city; and

H.

In the case that any individual lots have been sold, at the discretion of the city council and only after the city has performed a comprehensive review of the development (which may include approval of a construction phasing plan), completion of required improvements to serve the individual lots as determined by the city engineer; and other requirements and conditions to be met prior to acceptance of the lien agreement.

(3)

Lien agreements used to substitute for existing security shall be recorded against all lots that have not passed a final inspection and for which all associated required improvements, as determined by the city engineer, have not been completed ("undeveloped lots"). Such lien agreements shall also be subject to and meet all of the requirements set forth in sections 17.64.065(e) through 17.64.065(m), below.

(e)

Lien agreements, including those used to substitute for existing security under section 17.64.065(d), above, shall:

(1)

Be allowed only where the subdivider provides a title insurance policy and title report from a title company approved by the city documenting that: (i) the subdivider is the record owner of the entire property to be subdivided (or in the case of a substitute security, documenting that the subdivider is the record owner of all undeveloped lots) against which the lien agreement is to be recorded; and (ii) such aforementioned property is not encumbered by any

mortgages, deeds of trust, or liens. The title insurance policy and title report shall be issued forty-five days prior to the execution of the lien agreement.

(2)

Be in a form acceptable to and approved by the city council, the city attorney and the city's risk manager.

(3)

Be executed by the mayor on behalf of the city, and by all current record owner(s) of the property to be divided (or in the case of a substitute security, all owners of the undeveloped lots), as evidenced by the title insurance policy and report specified in section 17.64.065(e)(1), above.

(4)

Be used only to secure future improvements that would be required for any final map and/or when a subdivider would be required by chapter 17.64 to construct, or agree to construct, the required improvements for a subdivision.

(5)

Contain a detailed itemization of the required improvements (or in the case of a substitute security, any remaining required improvements) and an engineer's estimate of costs to construct same, as approved by the city engineer, and specify that the subdivider's obligation, and that of its successors in interest, extends to the actual cost of construction of the aforementioned improvements even if such costs exceed the estimate.

(6)

Contain a legal description of the entire real property against which the lien agreement is being recorded as security for the required improvements (or in the case of substitute security, as security for the remaining required improvements).

(7)

Be recorded with the San Bernardino County Recorder against the entire property to be divided by the map (or in the case of substitute security, against all undeveloped lots). The recorded lien agreement shall be indexed in the granter index to the names of all record owners of the real property as specified on the map and/or in section 17.64.065(e)(1) above, and in the grantee index to the city.

(8)

Be approved concurrently with the approval of the final map and a subdivision improvement agreement executed by subdivider, with a note of the lien agreement's existence placed on the map (except where the lien agreement is being used as substitute security after final map approval under section 17.64.065(d) above, in which case the lien agreement shall be signed and acknowledged by all parties having any record title interest in the property against which the lien agreement is being recorded, as prescribed by Government Code Section 66436 and consenting to the subordination of their interests to the lien agreement.

(9)

Require the subdivider to pay an application fee to the city for the processing of the lien agreement in an amount established by the city council.

(f)

From the time of recordation of the lien agreement, a lien having the priority of a judgment lien shall attach to the real property described therein in an amount necessary to complete the required improvements (or in the case of substitute security, the remaining required improvements) and under no circumstances shall the city be obligated to agree to subordinate the lien.

(g)

Lien agreements shall also provide that:

(1)

The subdivider must deliver acceptable replacement security to the city, in the types and amounts specified in sections 17.64.060(a) and (b) and approved by the city council, in place of the lien agreement and commence construction of the required improvements within six (6) years of recordation of the map, unless an extension is granted under the provisions of section 17.64.065(h), in which case delivery of replacement security and commencement of construction shall occur within ten (10) years of recordation of the map; or

(2)

In the case of a substitute security, the subdivider must deliver acceptable replacement security to the city (in the types and amounts specified in sections 17.64.060(a) and (b) of this chapter and approved by the city council) in place of the lien agreement and commence construction of the remaining required improvements within six (6) years of recordation of the lien agreement, unless an extension is granted under the provisions of section 17.64.065(h), in which case delivery of replacement security and commencement of construction shall occur within ten (10) years of recordation of the lien agreement; and

(3)

Once the lien agreement is recorded, the city shall not issue any development or construction permits for the property subject to the lien agreement until the aforementioned delivery of acceptable replacement security to the city has occurred; and

(4)

Once an existing lien agreement has been replaced with acceptable security in the types and amounts specified in sections 17.64.060(a) and (b) and approved by the city council, no subdivider shall be permitted to substitute a lien agreement for said security a second time.

(h)

Extension of time to deliver replacement security and commence construction of improvements.

(1)

The time for delivery of acceptable replacement security to the city and commencement of construction as specified in sections 17.64.065(g)(1) and (2) above, may be extended once for an additional period not to exceed four years, upon request of the subdivider and upon approval by the city engineer or his/her designee. A lien agreement may therefore only be utilized as security for a total of ten years.

(2)

Lien agreements entered into under prior Ordinance No. 2365 (allowing for use of lien agreements as security for an initial three-year period and permitting one three-year extension if certain terms and conditions are met) shall also be eligible to request the additional extension of time specified above, under the terms and conditions set forth in section 17.64.065(h)(3) below, provided that such lien agreements are first extended beyond their initial three-year period in accordance with the terms and conditions contained in such lien agreements.

(3)

In order to receive an extension of time under this subsection (h), the following conditions must be met:

A.

The subdivider shall provide a title insurance policy and title report from a title company approved by the city documenting that:

(i)

The subdivider is the record owner of the entire subdivided property against which the lien agreement is currently recorded as security (or in the case of a substitute security, documenting that the subdivider is the record owner of all undeveloped lots against which the lien agreement has been recorded); and

(ii)

Such subdivided property or undeveloped lots are not encumbered by any mortgages, deeds of trust, or liens.

B.

The title insurance policy and title report shall be issued forty-five days prior to the date the extension of time is requested.

C.

The subdivider shall enter into written amendments to the currently-existing lien and subdivision improvement agreements which reflect the time extension and contain an updated engineer's estimate. The subdivider shall be required to pay an application fee to the city for the processing of these amendments in an amount established by the city council. Said amendments shall be recorded.

(i)

The lien agreement shall provide that no individual lots shall be sold while the lien agreement is in effect. However, fee title to the entire property encumbered by the lien agreement or to all lots designated on any individual final map which is encumbered by the lien agreement (with the exception of any final map(s) requiring installation of improvements pursuant to an underlying preceding map, as set forth in section 17.65.065(m) below) may be sold in the aggregate to a single purchaser, provided that the proposed purchaser, prior to or concurrent with assuming title to the property, either:

(1)

Executes a new or replacement subdivision improvement agreement in a form acceptable to the city to assume the obligations of the subdivider associated with the property encumbered by the existing lien agreement and delivers acceptable replacement security to the city as set forth in section 17.65.065(g) as a condition to development of the property conveyed; or

(2)

Executes a new or replacement subdivision improvement agreement in a form acceptable to the city to assume the obligations of the subdivider associated with the property encumbered by the existing lien agreement and executes a new lien agreement in a form acceptable to the city as security to replace the existing lien agreement, which will encumber the property to be conveyed.

(j)

Prior to entering into the lien agreement, the subdivider shall also be required provide to the city a cash deposit for each recorded subdivision tract map in an amount established by the city council, regardless of whether the project was subdivided by a single tract map or by multiple tract map recordings through phasing, for the purpose of reverting the property to acreage if the subdivider breaches any of the terms of the lien agreement or defaults thereunder. Reversion to acreage upon default or breach shall only be applicable to properties where none of the required improvements for which the lien agreement was provided as security have been installed and/or constructed. Dedications of any master planned streets or rights-of-way (as identified in the circulation element of the city's general plan) made on the final map being reverted to acreage shall be retained following such reversion. Any unused portion of the cash deposit shall be refunded to the subdivider who made such cash deposit, following completion of the reversion to acreage. If the cost of the reversion to acreage exceeds the amount deposited per recorded subdivision tract map, the subdivider shall pay such additional costs to the city prior to recordation of the reversion to acreage map.

(k)

The lien agreement shall only be released: (i) upon delivery to the city of acceptable replacement security for such lien agreement prior to construction and issuance of permits as set forth in section 17.64.065(g); (ii) in the event of a sale in compliance with the provisions of section 17.64.065(i); or (iii) upon recordation of a reversion to acreage map.

(l)

Under no circumstances shall any lien agreement compel the city to construct the required improvements or any remaining required improvements.

(m)

Lien agreements may not be used as security for subdivision improvement Agreements involving individual final subdivision maps conditioned to require installation or construction of required improvements in conjunction with an underlying preceding map for which required improvements still remain outstanding, unless:

(1)

All the real property covered by the individual maps are combined in a single subdivision improvement agreement together with the underlying preceding map to which they relate; and

(2)

A single lien agreement is used to secure the subdivision improvement agreement; and

(3)

The lien agreement and subdivision improvement agreement provide that fee title to the entire property encumbered by the lien agreement (regardless of the number of individual recorded maps) may only be sold as a

whole to a single purchaser, to ensure that public improvements required by the preceding underlying map can be completed prior to or simultaneously with the development/construction of each of the tracts created by the associated individual final maps, or in such sequence as is mandated by the conditions of approval; and

(4)

The lien agreement and subdivision improvement agreement otherwise comply with section 17.64.065(i)(1) or (2) with respect to sale of the entire property. The subdivider may proceed with selling all lots designated on any of the individual final maps in accordance with section 17.64.065(i)(1) or (2) only after the required improvements associated with the preceding underlying map have been completed or acceptable replacement security for the required improvements of the preceding underlying map, in the types and amounts specified in sections 17.64.060(a) and (b) and approved by the city council, has been furnished to the city.

(n)

Fees or deposits established under section 17.64.065 shall be adopted and revised from time-to-time by resolution of the city council and included in a schedule of fees.

(Ord. No. 2365, § 3, 5-16-17; Ord. No. 2398, § 3, 11-19-19)

The improvement security required under Section 17.64.060 of this chapter, shall be released in the following manner:

(1)

Security for faithful performance of any act or agreement shall be released upon the final completion and acceptance of the act or work subject to the provisions of subsection (2) of this section;

(2)

The city council may release a portion of the security in conjunction with the acceptance of the performance of the act or work as it progresses upon application therefor by the subdivider; provided, however, that no such release shall be for an amount less than thirty percent of the total improvement security given for faithful performance of the act or work and that the security shall not be reduced to an amount less than thirty percent of the total improvement security given for faithful performance until final completion and acceptance of the act or work. In no event shall the city council authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the act or work or any other obligation imposed by this title, the Subdivision Map Act or the improvement agreement;

(3)

Security given to secure payment to the contractor, his subcontractors and to persons furnishing labor, materials or equipment shall, six months after completion and acceptance of the act or work, be reduced to an amount equal to the amount of all claims therefor filed and of which notice has been given to the city's finance department plus an amount reasonably determined by the city council to be required to insure the performance of any other obligations secured thereby. The balance of the security shall be released upon the settlement of all such claims and obligations for which the security was given;

(4)

No security given for the guarantee or warranty of work shall be released until the expiration of the guarantee or warranty period. Upon the failure of the subdivider to complete the improvement acts or obligations within the time specified, the city council may, upon notice in writing of not less than ten days, served upon the person responsible for the performance thereof, or upon notice in writing of not less than twenty days served by registered mail, addressed to the last known address of such person, determine that the subdivider is in default and may cause the improvement security or such portion thereof as is necessary to complete the work or act, and any other obligation of the subdivider secured thereby, to be forwarded to the city.

(Ord. 999 § 1 (part), 1985)

Chapter 17.68 - DEDICATIONS

Sections: