(a) Completion of Improvements. Before final subdivision plat is signed by the Chairman of Planning Commission, all applicants shall be required to complete, in accordance with the Planning Commission's decision and to the satisfaction of the City Engineer, all the street, sanitary and other public improvements, including lot improvements on the individual lots of the subdivision, as required in these regulations, specified in the final subdivision plat and as approved by the Planning Commission, and to dedicate those public improvements to the local government, free and clear of all liens and encumbrances on the dedicated property and public improvements.
(b) Subdivision Improvement Agreement and Guarantee.
(1) Agreement. The Planning Commission in its sole discretion may waive the requirement that the applicant complete and dedicate all public improvements prior to approval of the final subdivision plat and, as an alternate, permit the applicant to enter into a subdivision improvement agreement by which the subdivider covenants to complete all required public improvements no later than two (2) years following the date on which the Chairman of the Planning Commission signs the final subdivision plat. The applicant shall covenant to maintain each required public improvement for a period of one (1) year following the acceptance by the governing body of the dedication of that completed public improvement and also shall warrant that all required public improvements will be free from defect for a period of three (3) years following the acceptance by the City Council of the dedication of the last completed public improvement. The subdivision improvement agreement shall contain such other terms and conditions agreed to by the applicant, the Planning Commission and City Council.
(2) Covenants to Run. The subdivision improvement agreement shall provide that the covenants contained in the agreement shall run with the land and bind all successors, heirs, and assignees of the subdivider. The subdivision improvement agreement will be approved by Council, pursuant to applicable state and local laws and shall be recorded in the Clerk and Recorder's Office of Lake County.
(3) Security. Whenever Council permits an applicant to enter into a subdivision improvement agreement, it shall require the applicant to provide a letter of credit or cash escrow as security for the promises contained in the subdivision improvement agreement. Either security shall be in an amount equal to one hundred twenty percent (120%) of the estimated cost of completion of the required public improvements, including lot improvements. The issuer of the letter of credit or the escrow agent, as applicable, shall be approved by the Law Director and be acceptable to Council.
A. Letter of Credit. If the applicant posts a letter of credit as security for its promises contained in the subdivision improvement agreement, the credit shall (1) be irrevocable; (2) be for a term sufficient to cover the completion, maintenance, and warranty periods in Section 1367.01(b); and (3) require only that the City present the credit with a sight draft and an affidavit signed by the Law Director attesting to the municipality's right to draw funds under the credit.
B. Cash Escrow. If the applicant posts and cash escrow as security for its promises contained in the subdivision improvement agreement, the escrow instructions shall provide: (1) that the subdivider will have no right to a return of any of the funds except as provided in Section 1367.03 (b); and (2) that the escrow agent shall have a legal duty to deliver the funds to the municipality whenever the City Law Director presents an affidavit to the agent attesting to the municipality's right to receive funds whether or not the subdivider protests that right. If and when the City accepts the offer of dedication for the last completed required public improvement, the City shall execute a waiver of its right to receive all but twenty-five percent (25%) of the funds represented by the letter of credit or cash escrow if the subdivider is not in breach of the subdivision improvement agreement. The residual funds shall be security for the subdivider's covenant to maintain the required public improvements and its warranty that the improvements are free from defect.
(c) Temporary Improvement. The applicant shall build and pay for all costs of temporary improvements and shall maintain those temporary improvements for the period specified by Council. Prior to construction of any temporary facility or improvement, the developer shall file with the City, a separate subdivision improvement agreement and a letter of credit or cash escrow in an appropriate amount for temporary facilities, which agreement and credit or escrow shall ensure that the temporary facilities will be properly constructed, maintained, and removed.
(d) Costs of Improvements. All required improvements shall be made by the developer, at its expense, without reimbursement by the City or any improvement district except that, as may be allowed under state law, the developer may form or cause to be formed a special district or districts to construct and finance the construction of required public improvements excluding lot improvements on individual lots. If the subdivider does form or cause to be formed a special district for the purposes identified in this section, the City shall not release the subdivider from its obligating under any subdivision improvements agreement nor shall the City release any security, in whole or in part, until the special district has sold bonds or otherwise certifies to the City that it has an absolute right to raise revenues sufficient to construct, maintain, and warrant the quality of the required public improvements.
(e) Governmental Units. Governmental units to which these contract and security provisions apply may file, in lieu of the contract and security, a certified resolution or ordinance from officers or agencies authorized to act in their behalf, agreeing to comply with the provisions of this Chapter.
(f) Failure to Complete Improvement. For subdivisions for which no subdivision improvement agreement has been executed and no security has been posted, if the improvements are not completed within the period specified, the sketch plat or preliminary plat approval shall be deemed to have expired. In those cases where a subdivision improvement agreement has been executed and security has been posted and required public improvements have not been installed within the terms of the agreement, the City may then:
(1) Declare the agreement to be in default and require that all improvements be installed regardless of the extent of the building development at the time the agreement is declared to be in default;
(2) Suspend final subdivision plat approval until the improvements are completed and record a document to that effect for the purpose of public notice;
(3) Obtain funds under the security and complete improvements itself or through a third party;
(4) Assign its right to receive funds under the security to any third party, including a subsequent owner of the subdivision for which improvements were not constructed, in whole or in part, in exchange for that subsequent owner's promise to complete improvements in the subdivision;
(5) Exercise any other rights available under the law.
(g) Acceptance of Dedication Offers. Acceptance of formal offers of dedication of streets, public areas, easements, and parks shall be by ordinance of the City Council. The approval of a subdivision plat by the Planning Commission, whether sketch, preliminary or final, shall not be deemed to constitute or imply the acceptance by the City of any street, easement, or park shown on the plat. The Planning Commission may require the plat to be endorsed with appropriate notes to this effect.
(Ord. 2004-40. Passed 5-24-04.)
(Ord. 2004-40. Passed 5-24-04.)