Chapter 9.112
IMPROVEMENT PLANS, INSTALLATION, AND SECURITY
Sections:
9.112.030 Installation of improvements.
9.112.040 Improvement agreements and security.
9.112.010 Purpose of chapter.
This chapter provides standards for the preparation and review of improvement plans, the installation of improvements, and for security to guarantee installation of the improvements. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.112.020 Improvement plans.
After the approval of a tentative map and before the construction of any improvements, the subdivider shall submit plans to the City as follows:
A. Preparation and content. Improvement plans shall be prepared by a California registered professional engineer. Improvement plan submittals shall include all of the following information:
1. Any drawings, specifications, calculations, design reports, and other information required by the City Engineer;
2. Grading, drainage, erosion and sediment control, and a storm water pollution prevention plan (SWPPP) for the entire subdivision; and
3. The improvement plan/specification checking and construction inspection fees required by the City’s Fee Schedule.
B. Submittal of plans. Improvement plans shall be submitted to the City Engineer and other appropriate reviewing agencies for review and approval. Upon the approval of improvement plans in compliance with subsection C of this section (Review and approval), the subdivider shall also submit to the City Engineer a detailed cost estimate of all improvements, based on guidelines provided by the City.
1. Street and drainage plans and profiles. Plans, profiles, and specifications of proposed street and drainage improvements shall be submitted to the City Engineer, checked and approved before presentation of the final map to the Council for acceptance. These plans and profiles shall show full details of the proposed improvements in compliance with City standards.
2. Water systems plans. Plans, specifications, and all necessary details of the proposed water system shall be submitted to the City Engineer for review.
a. Connections. The subdivider shall install an approved water connection to the property line of each parcel within the subdivided area and pay the applicable water connection fees as established by City resolution or ordinance.
b. Mains. Water mains and house services shall be constructed to serve each parcel within the subdivided area and shall be of a size and design as designated by the City Engineer.
3. Sanitary sewer plans. Plans, profiles, specifications, and all necessary details of the sanitary sewers to be installed shall be submitted to the City Engineer for review.
C. Review and approval. Improvement plans shall be reviewed and approved by the applicable agency within the time limits specified by Map Act Section 66456.2.
D. Effect of approval. The final approval of improvement plans shall be required before approval of a parcel or final map. The approval of improvement plans shall not bind the City to accept the improvements nor waive any defects in the improvements as installed. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.112.030 Installation of improvements.
Subdivision improvements required as conditions of approval of a tentative map approved in compliance with this chapter (see Section 9.102.060) shall be installed as specified by this section.
A. Timing of improvements. Required improvements shall be constructed or otherwise installed only after the approval of improvement plans in compliance with Section 9.112.020, and before the approval of a parcel or final map in compliance with Section 9.104.060 (Parcel map approval) or 9.104.100 (Final map approval), except where:
1. Improvements are deferred in compliance with Section 9.112.040 (Improvement agreements and security); or
2. Improvements are required as conditions on the approval of a subdivision of four (4) or fewer parcels, in which case construction of the improvements shall be required:
a. When a building permit is issued for development of an affected parcel;
b. At the time the construction of the improvements is required in compliance with an agreement between the subdivider and the City, as specified in Section 9.112.040 (Improvement agreements and security); or
c. At the time specified in a condition of approval, when the review authority finds that fulfillment of the construction requirements by that time is necessary for public health and safety, or because the required construction is a necessary prerequisite to the orderly development of the surrounding area; or
3. Under other circumstances as approved by the City Engineer;
4. To avoid breaking up street paving, underground utility or service lines required to be installed as part of a subdivision and which are planned to run across or underneath a street or alley right-of-way shall be installed before the preparation of subgrade and before the surfacing of any streets or alleys. In the event that the development of the subdivision requires the utility company to perform utility construction work, the subdivider shall pay a deposit satisfactory to the utility company within sufficient time to allow construction work to be performed before subgrade preparation. In no event shall subgrade preparation commence before installation of all necessary utilities and laterals.
B. Inspection of improvements. The inspection of the construction and installation of required subdivision improvements shall occur as follows:
1. Supervision. Before starting any work, the contractor engaged by the subdivider shall designate in writing an authorized representative who shall have the authority to represent and act for the contractor in contacts with the City. The designated representative shall be present at the work site at all times while work is in progress. At times when work is suspended, arrangements acceptable to the City Engineer shall be made for any emergency work that may be required.
2. Inspection procedures.
a. Inspections required. The agency that has required a specific action shall make any inspections as it deems necessary to ensure that all construction complies with the approved improvement plans. Where required by the agency, the subdivider shall enter into an agreement with the City to pay the full cost of any contract inspection services determined to be necessary by that agency.
b. Access to site and materials. The agency that has required a specific action shall have access to the work site at all times during construction, and shall be furnished with every reasonable facility for verifying that the materials and workmanship are in compliance with the approved improvement plans.
c. Authority for approval. The work done and all materials furnished shall be subject to the inspection and approval of the agency that has required a specific action. The inspection of the work or materials shall not relieve the contractor of any obligations to fulfill the work as prescribed.
d. Improper work or materials. Work or materials not meeting the requirements of the approved plans and specifications may be rejected, regardless of whether the work or materials were previously inspected by the agency that has required a specific action. In the event that the agency determines that subdivision improvements are not being constructed as required by the approved plans and specifications, it shall order the work stopped and shall inform the contractor of the reasons for stopping work and the corrective measures necessary to resume the work. Any work done after issuance of a stop work order shall be a violation of this chapter.
3. Notification. The subdivider shall notify the City Engineer as part of condition compliance upon the completion of each stage of construction before recordation as specified in this chapter. Further construction may only be completed if all required actions included in the conditions of approval have been accomplished and signed off by the agency that has required the action(s). (§ 2, Ord. 14-13, eff. October 8, 2014)
9.112.040 Improvement agreements and security.
If all required improvements, engineering, and inspections are not satisfactorily completed before a parcel or final map is approved, the subdivider shall, before the approval of the parcel or final map, enter into an agreement with the City whereby in consideration of the acceptance by the Council of the streets, easements, and any other land offered for dedication, the subdivider agrees to furnish the equipment, labor, and material necessary to complete the work within the time specified in the agreement in compliance with Map Act Section 66499.3.
A. Amount of security required. To ensure that the work will be completed, improvement security shall be furnished to guarantee the performance of any act or agreement in the following amounts and for the following purposes:
1. An amount, equal to one hundred percent (100%) of the total estimated cost of the improvement or of the act to be performed, conditioned upon the faithful performance of the required act or agreement.
2. An additional amount, not less than fifty percent (50%) nor more than one hundred percent (100%) of the total estimated cost of the improvement or the performance of the required act, securing payment to the contractor, to the subcontractors, and to persons furnishing labor, materials, or equipment to them for the improvement or the performance of the required act.
3. Whenever an entity required to furnish security in compliance with this section is a California nonprofit corporation, funded by the United States of America or one of its agencies, or funded by this State or one of its agencies, the entity shall not be required to comply with subsections (A)(1) and (2) of this section if all of the following conditions are met.
a. The contractor installing the improvements has bonded to the nonprofit corporation and the City as co-obligee the amount of one hundred percent (100%) of the contract for the faithful performance of the work, and has further bonded to the nonprofit corporation and the City as co-obligee an amount of not less than fifty percent (50%) of the contract for the payment of labor and materials, and those bonds comply with the provisions of this section.
b. All monies payable to the contractor by the nonprofit corporation are deposited in a depository complying with the provisions of the Map Act and out of which progress payments are conditioned upon:
(1) The contractor’s certification to the nonprofit corporation that all labor performed in the work and all materials furnished to and installed in the work have been paid for in full to the date of the certification;
(2) The written approval of the nonprofit corporation;
(3) The review and approval of progress payment billings by the City. The term “progress payment” as used in this section shall mean payment made in compliance with the schedule of partial payments agreed upon in the contract for the work. No less than ten percent (10%) of the total contract price shall be retained for the sixty (60) days following the filing of the notice of completion; and
(4) Final payment to the contractor not being made until thirty (30) days shall have expired after the filing and recording of the notice of completion of the work and written acceptance of the work by, and a waiver of lien rights provided by, the contractor to the City in writing.
c. All certifications as to progress payments shall be delivered through the U.S. mail to the nonprofit corporation.
4. An amount as determined by the City Engineer, but not more than twenty-five percent (25%), or less than ten percent (10%) of the total estimated cost of improvements or performance of the required act necessary for the guarantee and warranty of the improvement for twelve (12) months following the completion and acceptance, against any defective work or labor done, or defective materials furnished.
5. As part of the obligation guaranteed by the security and in addition to the face amount of the security, there shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees incurred by the City in successfully enforcing the obligation secured.
B. Type of security required.
1. The furnishing of security in connection with the performance of any act or agreement shall be one or more of the following, at the option of and subject to the approval of the Council:
a. Bond(s) by one or more duly authorized corporate sureties licensed to do business in the State of California;
b. A deposit, either with the City, responsible bank or trust company, at the option of the City, of money or negotiable bonds of the kind approved for securing deposits of public monies; and/or
c. An instrument of credit from one or more financial institutions subject to regulation by the State or Federal government, and pledging that the funds necessary to carry out the act or agreement are on deposit and guaranteed for payment, or a letter of credit issued by a financial institution;
d. A lien upon the property to be divided, created by contract between the owner and the local agency, if the local agency finds that it would not be in the public interest to require the installation of the required improvement sooner than two (2) years after the recordation of the map;
e. A lien upon the property, including a deed of trust or any similar type or form of security interest in real property, which is acceptable to the City.
2. Any contract or security interest in real property entered into as security for performance pursuant to subsection (B)(1)(d) or (e) of this section shall be recorded with the Fresno County Recorder. From the time of recordation of the written contract or document creating a security interest, a lien shall attach to the real property particularly described therein and shall have the priority of a judgment lien in an amount necessary to complete the agreed-to improvements. The recorded contract or security document shall be indexed in the Grantor Index to the names of all record owners of the real property as specified on the map and in the Grantee Index to the City.
The City may at any time release all or any portion of the property subject to any lien or security interest created by this subdivision or subordinate the lien or security interest to other liens or encumbrances if it determines that security for performance is sufficiently secured by a lien on other property or that the release or subordination of the lien will not jeopardize the completion of agreed-upon improvements.
3. A bond(s) to secure faithful performance and for the benefit of laborers and material of any agreement shall be in substantially the forms as shown in the Map Act. The money, negotiable bond, or instrument of credit shall be a trust fund to guarantee performance and shall not be subject to enforcement of a money judgment by any creditors of the depositor until the obligation secured thereby is performed to the satisfaction of the City.
C. Forfeiture on failure to complete. Upon the failure of a subdivider to complete any improvements and work within the time specified in the agreement, the Council may, upon notice in writing served by registered mail addressed to the last known address of the person, firm, or corporation signing the contract, determine that the improvement work or any part of the work is uncompleted and may cause to be forfeited to the City the sum of money or bond(s) given for the faithful performance of the work as may be necessary to complete the work.
D. Exoneration of improvement security. With the exception of flood control or drainage works inspected by the Fresno Metropolitan Flood Control District, it shall be the duty of the City Engineer to inspect or receive certificates of completion of all improvements installed as to their compliance with this chapter and City standards. The security furnished by the subdivider may be released as follows:
1. Security given for faithful performance of any act or agreement shall be released upon the performance of the act or final completion and acceptance of the required work.
2. Security guaranteeing the payment to the contractor, subcontractors, and to persons furnishing labor, materials, or equipment shall, after passage of the time within which claims of lien are required to be recorded in compliance with Civil Code Article 3 (commencing with Section 8400) of Chapter 4 of Title 2 of Part 6 of Division 4 and other acceptance of the work, be reduced to an amount equal to the total claimed by all claimants for whom claims of lien have been recorded and notice thereof given in writing to the Council, and if no claims have been recorded, the security shall be released in full.
3. The release shall not apply to any required guarantee and warranty period, nor to the amount of the security deemed necessary by the City for the guarantee and warranty period, nor to cost and reasonable expenses and fees, including reasonable attorney’s fees.
4. Maintenance security necessary for guarantee and warranty of the work for a period of twelve (12) months following completion and acceptance thereof against any defective work or labor completed, or defective materials furnished shall be released if no claims of defective work have been filed with the Council. In the event of the defective work, the security shall be held until all work is considered satisfactory and acceptable by the City. (§ 2, Ord. 14-13, eff. October 8, 2014)