City of St. Charles, MO Required Improvements

[R.O. 2011 § 405.220; R.O. 2009 § 154.055; CC 1981 § 25-51; Ord. No. 3775, 8-7-1970; Ord. No. 87-243, 12-9-1987; Ord. No. 06-61, 3-10-2006; Ord. No. 09-179, 10-2-2009]

Improvement Plan Review Fee And Improvement Guarantee Required. A developer shall submit with its improvement plans a fee of one hundred twenty-five dollars ($125.00) for the cost of the Department of Engineering's plan review. After the improvement plans have been approved and all construction inspection fees paid, but before consideration of a final plat of a subdivision, the Council shall be satisfied that all improvements required by Sections 405.230 through 405.250 have been constructed, the developer shall guarantee the completion of improvements required by the approved improvement plans ("required improvements") and guarantee maintenance of such improvements as required herein. Except as provided in Subsection (B), the developer shall either:

[Ord. No. 18-081, 4-17-2018]

Complete the improvements in accordance with the approved improvement plans under the observation and inspection of the Public Works Department or the appropriate public agency and establish a maintenance agreement and provide a deposit to guarantee maintenance of such improvements as required herein; or

Establish a deposit under a deposit agreement with the City guaranteeing the construction, completion and installation ("construction deposit") and a separate deposit amount for maintenance obligations ("maintenance deposit") as required herein and for the improvements shown on the approved improvement plans within the improvement completion period approved by the Director of Public Works, which shall not exceed two (2) years.

Exceptions. The Director of Public Works may require any specific improvement to be installed prior to approval of the record plat where failure to install such improvement prior to further development could result in damage to the site or surrounding property.

Deposit Options. Deposits required by this Section shall be in conjunction with a deposit agreement and may be in the form of cash or letter of credit as follows:

Cash deposited with the Finance Department to be held in an interest-bearing account dedicated for that purpose, with all interest accruing to the City to offset administrative and other costs of maintaining the cash deposits.

An irrevocable letter of credit drawn on a local financial institution acceptable to and in a form approved by the City Attorney and the Director of Public Works. The instrument may not be drawn on any financial institution with whom the developer or a related entity has any ownership interest or with whom there is any joint financial connection that creates any actual or potential lack of independence between the institution and the developer. The letter of credit shall provide that the issuing institution will pay on demand to the City such amounts as the City may require to fulfill the obligations herein and may be reduced from time to time by a writing of the Director of Public Works. The letter of credit shall be irrevocable for at least one (1) year and shall state that any balance remaining at the expiration shall automatically be deposited in cash with the Finance Department, unless a new letter of credit is issued and agreed to by the City or the City issues to the institution a written release of the obligations for which the letter of credit was deposited. The developer shall pay a non-refundable fee of two hundred dollars ($200.00) to the City with submission of a letter of credit and one hundred dollars ($100.00) for any amendment or extension thereto to partially reimburse the City's administration and review costs in accepting and maintaining such letter of credit.

Due to the costs of administering deposit guarantees/escrows and the compliance with State law relating thereto, any developer that elects to use a construction escrow in lieu of completing the improvements, as otherwise provided for in this Chapter and Section 89.410, RSMo., shall deposit an additional fee of five hundred dollars ($500.00) that shall be used by the City to defray costs of administration, legal costs, procedural changes and other costs not otherwise reimbursed to the City resulting from the City's acceptance of such deposit guarantees. The developer shall be obligated to reimburse the City for any additional costs, including, but not limited to, reasonable attorneys fees, above such deposit amount arising in any way from the City's acceptance of a deposit/escrow in lieu of completion of improvements. The developer may request a refund of any principal amounts, if any, of any initial or supplemented deposit above the costs attributable to the development during the period of the escrow by written request made within thirty (30) days after the developer has received a City approval of all categories of improvements subject to such deposit agreement.

Amount Of Deposit. The amount of the deposit required by this Section shall be calculated as follows:

Construction Deposit. The deposit required of a developer establishing a deposit agreement pursuant to Subsection (A)(2) shall be, in addition to the separate maintenance deposit sum, in the amount of one hundred ten percent (110%) of the Department of Public Works approved estimate of the cost of the construction, completion and installation of the required improvements. The Director of Public Works shall adopt, to the extent practical, schedules reflecting current cost estimates of typically required improvements.

Maintenance Deposit. The deposit required of a developer pursuant to Subsection (A)(1) and (A)(2) for maintenance obligations shall be in the amount of ten percent (10%) of the Department of Public Works estimate of the cost of the construction, completion and installation of the required improvements. The maintenance deposit shall be established by cash sum or submission of a separate letter of credit.

Where certain improvements are required to be installed prior to approval of the record plat pursuant to Subsection (B)(2), the gross deposit amount for the construction deposits shall be reduced by the estimated cost of such improvements.

Deposit Agreement — Releases. The deposit agreement shall be entered into with the City of St. Charles, shall require the developer to agree to fulfill the obligations imposed by this Section and shall have such other terms as the City Attorney may require consistent with this Section. The agreement shall authorize the Director of Public Works to release the cash or reduce the obligation secured under the letter of credit as permitted herein. Such releases or reductions may occur upon completion, inspection and approval by the Director of Public Works of all required improvements within a category of improvements or may occur from time to time, as work on specific improvements is completed, inspected and approved, provided however, that:

Releases — general. The Director of Public Works shall release the cash or release the letter of credit as to all or any part of its obligation only after construction, completion and installation of some phase of work on the improvements indicated on the approved improvement plans, receipt of requisite written notification from the appropriate inspecting public authority and approval by the Public Works Department; and only in the amounts permitted herein.

Extension Of Completion Period. If, at the end of the improvement completion period, all the improvements shown on the approved improvement plans have not been completed, the developer may request and the Director of Public Works may grant an extension to the improvement completion period for a period of up to two (2) years if after review by the Public Works Department such longer period is deemed necessary to facilitate adequate and coordinated provisions for transportation, water, sewerage, schools, parks, playgrounds or other public improvements, facilities or requirements so long as all guarantees are extended and approved by the City Attorney; provided that the Director of Public Works may require as a condition of the extension execution of a new agreement, recalculation of deposit amounts or satisfaction of new Code of Ordinance requirements or other reasonable conditions as may be needed to ensure that the extended agreement fully complies with the terms of this Section.

Construction Deposit Releases. After an inspection of any specific improvements, the Director of Public Works may at the Director's discretion release up to the ninety-five percent (95%) of the original sum deposited for the construction of such specific required improvements. Irrespective of any discretionary prior releases that may be authorized by the Director of Public Works after completion of any component of the guaranteed improvements (i.e., less than all of the improvements in a given category), the remaining amount held for any category of improvements for the entire development shall be released within thirty (30) calendar days of completion of all of the improvements in such category of improvement, minus a retention of five percent (5%) which shall be released only upon completion of all improvements. The Director of Public Works shall establish the improvement categories, which may consist of improvement components or line items, to be utilized for calculation of deposit amounts, but such categories, components and line items shall in no way modify or reduce the developer's guarantee as to all required improvements, irrespective of any release or completion of any category or underlying component or line item. All improvements in a category shall be deemed complete only when:

Each and every component and line item within a category for the entire development has been constructed and completed as required;

The developer has notified the Director of Public Works in writing of the completion of all components of the category, provided all necessary or requested documentation and requests an inspection;

The developer is not in default or in breach of any obligation to the City under this Section including, but not limited to, the Director of Public Work's demand for maintenance or for deposit of additional sums for the development; and

The inspection has been completed and the results of the inspection have been approved in writing by the Director of Public Works. Releases of the maintenance deposit amounts shall be as provided elsewhere in this Section for maintenance deposits.

Effect Of Release — Continuing Obligations. The developer shall continue to be responsible for defects, deficiencies and damage to public streets and other required improvements for the development. No inspection approval or release of funds from the construction deposit as to any component or category shall be deemed to be City approval of improvement or otherwise release the developer of its obligation relating to the completion of the improvements until the final development release on all improvements and maintenance is issued declaring that all improvements have in fact been constructed as required. Inspection and approval of any or all required improvements shall not constitute acceptance of the improvement by the City as a public improvement for which the City shall bear any responsibility.

Deficient Improvements. No approval of required improvements shall be granted for improvements that fail to meet the specifications established herein or otherwise adopted by the Department of Public Works.

Final Construction Deposit Release. Upon final inspection and approval of all required improvements and a favorable recommendation by the Board of Public Works and the City Council, the remaining amount of the construction deposit shall be released; provided that no such funds shall be released on a final inspection until the development is complete as determined by the Director of Public Works.

Appeals. If the developer believes that a release or certificate of completion has been improperly denied including, but not limited to, under Subsections (E) or (F), an appeal shall be filed to the Director of Administration.

The Department of Public Works shall inspect each category of improvement or utility work within twenty (20) business days after a request for such inspection has been filed with the department by the developer and no inspection shall be required until such request is received by the department. For purposes of this Section, an "inspection request" shall constitute and occur only on a completed written request on a form that shall include:

The category of improvement reflected in the deposit agreement that is requested to be inspected;

An engineer's certification that the category of improvement has been installed and on the date of inspection application is maintained and in conformance with the final approved improvement plans and all applicable requirements thereto and is therefore ready for inspection; and

A verified statement from the representative officer of the developer attesting that the information in the inspection request is true and accurate.

Nothing herein shall preclude the Department of Public Works from completing additional inspections at its discretion or as a courtesy to the developer.

Maintenance Guarantee.

Scope And Duration. Upon commencement of installation of the required improvements within the subject development, the developer shall be responsible for the maintenance of the improvements including undeveloped lots, streets, sidewalks, utilities, common areas and storm and drainage facilities, until the sooner of:

[Ord. No. 18-205, 9-25-2018]

The expiration of twelve (12) months after acceptance for public dedication of the specific improvement by the City; or

The expiration of twelve (12) months after occupancy permits have been issued on ninety-five percent (95%) of all of the lots or units in the development subject to the deposit agreement.

Maintenance shall include repair or replacement of all defects, deficiencies and damage to the improvements that may exist or arise, abatement of nuisances caused by such improvements, removal of mud and debris from construction, erosion control, grass cutting, removal of construction materials (except materials to be used for construction on the lot or as permitted by site plan) and street de-icing and snow removal. All repairs and replacement shall comply with City specifications and standards. Any maintenance on improvements accepted by the City for public dedication shall be completed under the supervision of and with the prior written approval of the Director of Public Works.

Maintenance Deposit — Amount — Use.

The maintenance deposit shall be retained by the City to guarantee maintenance of the required improvements and, in addition to being subject to the remedies of Subsection (G) and other remedies of the Code of Ordinances, shall be subject to the immediate order of the Director of Public Works to defray or reimburse any cost to the City of maintenance or repair of improvements related to the development which the developer fails or refuses to perform. Such costs shall include off-site damage caused by deficiencies in the improvements or failure of maintenance. Except in emergency circumstances or where action is otherwise required before written notice can be provided, the Director of Public Works shall provide the developer with a written demand and opportunity to perform the maintenance before having such maintenance performed by the City. The Director of Public Works shall have the authority to require the maintenance deposit to be placed or replenished by the developer in any form permitted for an original deposit where the amount remaining is determined to be insufficient or where the maintenance deposit was drawn upon by the City for maintenance.

In determining the amount of maintenance deposit that shall continue to be held, portions of the deposit amount that were attributable to improvement that have been accepted by any third party governmental entity or utility legally responsible for the maintenance of the improvement may be released upon such acceptance of the improvement by the entity. The Director of Public Works may approve such further releases if it is determined in his/her discretion, after inspection of the improvements, that the total maintenance amount retained is clearly in excess of the amount necessary for completion of the maintenance obligation, after all reasonable contingencies are considered.

Final Maintenance Deposit Release. Upon expiration of the maintenance obligations established herein, the Director of Public Works shall cause a final inspection to be made of the required improvements. Funds shall then be released if there are no defects or deficiencies found and all other obligations are shown to be satisfied on inspection thereof or at such time thereafter as any defects or deficiencies are cured with the permission of, and within the time allowed, by the Director of Public Works. This release shall in no way be construed to indemnify or release any person from any civil liability that may exist for defects or damages caused by any construction, improvement or development for which any deposit has been released.

Failure To Complete Improvements. The obligation of the developer to construct, complete, install and maintain the improvements indicated on the approved improvement plans and provide for street maintenance shall not cease until the developer shall be finally released by the Director of Public Works, nor shall any deposit agreements or obligations hereunder be assignable by developer. If, after the initial improvement completion period or after a later period as extended pursuant to this Section, the improvements indicated on the approved improvement plans are not constructed, completed, installed, accepted and maintained as required or if the developer shall violate any provision of the deposit agreement, the Director may notify the developer to show cause within not less than ten (10) calendar days why the developer should not be declared in default. Unless good cause is shown, no building or other permit shall be issued to the developer in the development during any period in which the developer is in violation of the deposit agreement or any Section of the Code of Ordinances. If the developer fails to cure any default or present compelling reason why no default should be declared, the Director shall declare the developer in default and may take any one (1) or more of the following acts:

Deem the balance under the deposit agreement not theretofore released as forfeited to the City, to be then placed in an appropriate trust and agency account subject to the order of the Director of Public Works for such purposes as letting contracts to bring about the completion or maintenance of the improvements indicated on the approved improvement plans or other appropriate purposes in the interest of the public safety, health and welfare; or

Require the developer or surety to pay to the City the balance of the surety not theretofore released; or

Require the developer to submit an additional cash sum sufficient to guarantee the completion or maintenance of the improvements indicated on the approved improvement plans after recalculation in order to allow for any inflated or increased costs of constructing or maintaining the improvements.

The failure of a developer to complete the improvement obligations within the time provided by the agreement (or any extension granted by the City) and including the payment of funds to the City due to such failure or an expiration of a letter of credit shall be deemed an automatic act of default entitling the City to all remedies provided in this Section without further or prior notice. It shall be the sole responsibility of the developer to timely request an extension of any deposit agreement if the improvements are not completed in the original time period provided by the deposit agreement and no right to any extension shall exist or be assumed.

Other Remedies For Default. If the developer or surety fails to comply with the Director's requirements for payment as described above or fails to complete the improvements as required or otherwise violates the deposit agreement provisions and there is a risk that development will continue in the subdivision without the timely prior completion of improvements or compliance with deposit agreement provisions, the Director of Public Works may in addition or alternatively to other remedies:

Suspend the right of anyone to build or construct on the undeveloped portion of the development. For the purpose of this Subsection the "undeveloped portion" means all lots other than lots which have been sold for personal use and occupancy or are under bona fide contract for sale to any person for personal use or occupancy. The Director shall give the developer ten (10) calendar days' written notice of an order under this Subsection with copies to all sureties, as appropriate, who have outstanding obligations for any undeveloped portion of the development and shall record an affidavit of such notice with the Recorder of Deeds. If, within the ten (10) calendar day period after notice is given, the Director is not convinced by compelling evidence that completion of the improvements is adequately assured and maintenance of streets assured as provided herein, the Director of Public Works shall order construction suspended on the undeveloped portion of the development. The order shall be served upon the developer with a copy to the issuer of the surety, as appropriate, and a copy recorded with the Recorder of Deeds. Public notice of said order shall be conspicuously and prominently posted by the Director at the subdivisions or lots subject to said order. The notice shall contain the following minimum language which may be supplemented at the discretion of the Director of Public Works.

If said notice is for a subdivision:

THIS SUBDIVISION, (name of subdivision), HAS BEEN DECLARED IN DEFAULT BY THE CITY OF ST. CHARLES DIRECTOR OF PUBLIC WORKS. NO DEVELOPMENT, CONSTRUCTION, BUILDING OR DEMOLITION IN ANY MANNER SHALL TAKE PLACE WITHIN THE LIMITS OF THIS SUBDIVISION UNTIL SUCH TIME AS THE CITY OF ST. CHARLES DIRECTOR OF PUBLIC WORKS REMOVES THIS PROHIBITION. ANY DEVELOPMENT, CONSTRUCTION, BUILDING OR DEMOLITION IN ANY MANNER WHILE THIS PROHIBITION IS IN EFFECT IS ILLEGAL AND SHALL BE ENFORCED PURSUANT TO CHAPTER 405, CITY OF ST. CHARLES CODE OF ORDINANCES.

If said notice is for a lot:

THIS LOT, (lot number), HAS BEEN DECLARED IN DEFAULT BY THE CITY OF ST. CHARLES DIRECTOR OF PUBLIC WORKS. NO DEVELOPMENT, CONSTRUCTION, BUILDING OR DEMOLITION IN ANY MANNER SHALL TAKE PLACE WITHIN THE LIMITS OF THIS LOT UNTIL SUCH TIME AS THE CITY OF ST. CHARLES DIRECTOR OF PUBLIC WORKS REMOVES THIS PROHIBITION. ANY DEVELOPMENT, CONSTRUCTION, BUILDING OR DEMOLITION IN ANY MANNER WHILE THIS PROHIBITION IS IN EFFECT IS ILLEGAL AND SHALL BE ENFORCED PURSUANT TO CHAPTER 405 CITY OF ST. CHARLES CODE OF ORDINANCES.

The suspension shall be rescinded in whole or in part only when the Director of Public Works is convinced that completion of the improvements is adequately assured in all or an appropriate part of the development and a guarantee of public street maintenance provided; or

Suspend the rights of the developer or any related entity to construct structures in any development platted after the effective date of such suspension throughout the City of St. Charles. The Director of Public Works shall give the developer ten (10) calendar days' written notice of an order under this clause with a copy to sureties known to the Director of Public Works to have obligations outstanding on behalf of the developer or related entities and shall record an affidavit of such notice with the Recorder of Deeds. If, within the ten (10) calendar day period after notice is given, the Director of Public Works is not convinced by compelling evidence that completion of the improvements is adequately assured and maintenance of streets assured as provided herein, the Director of Public Works shall order construction suspended. The order shall be served upon the developer with a copy to the surety, as appropriate, and a copy recorded with the Recorder of Deeds. The suspension shall be rescinded only when the Director of Public Works is convinced that completion of the improvements is adequately assured and public street maintenance is assured.

Suspension Of Development Rights. From and after the effective date of this Section, if a developer or any related entity has a development improvement guarantee that is in default as determined by the Director of Public Works including any escrow or bond under any prior version of this Section:

The Director of Public Works shall be authorized, but not be limited, to thereafter pursue the remedies of Subsection (H); and

The rights of the developer or any related entity to receive development approval, which approval shall include, but not be limited to, approval of any plat or deposit agreement for new or further development in the City, shall be suspended. The suspension shall be rescinded only when the Director of Public Works is convinced that completion and maintenance of the improvements is adequately assured.

Additional Remedies. If any party fails to comply with any obligation of this Section, the Director of Public Works may recommend that the City Attorney take appropriate legal action and the City may also withhold any building or occupancy permits to this developer or related entities until such compliance is cured. The City shall also have the right to partially or wholly remedy a developer's deficiencies or breached obligations under this Code of Ordinances by set-off of any funds or assets otherwise held by the City of the developer to the maximum extent permitted by law. Such set-off shall occur upon written notice of such event by the Director of Public Works to the developer after the developer has failed to timely cure the deficiencies. It shall be deemed a provision of every deposit agreement authorized under this Chapter that the developer shall pay the City's costs, including reasonable attorney's fees, of enforcing such agreement in the event that the developer is judicially determined to have violated any provision herein or in such agreement. The developer may appeal any decision taken pursuant to this Section by filing an appeal to the Director of Administration.

Related Entities. For purposes of this Section, "related entity" has the following meaning: a developer is a related entity of another person or entity:

If either has a principal or controlling interest in the other; or

If any person, firm, corporation, association, partnership or other entity with a controlling interest in one has a principal or controlling interest in the other.

The identification of related entities shall be supported by documentation from the Secretary of State's office, Jefferson City, Missouri.

[1]

Cross Reference: As to penalty, § 405.320; as to drains and driveways, §§ 505.350 et seq.; as to poles and wires, §§ 505.650 et seq.

Division	Standards
Division 200	Earthwork
Division 300	Bases and aggregate surfaces
Division 400	Flexible pavements
Division 500	Rigid pavements
Division 600	Incidental construction
Division 700	Structures
Division 800	Roadside development
Division 900	Traffic control facilities
Division 1000	Material details