City of Cottleville, MO Guarantee of Completion of Subdivision Improvements

[Ord. No. 666 §1, 8-12-2004; Ord. No. 1400 §43, 12-18-2014; Ord. No. 1848, 7-15-2020; Ord. No. 1953, 8-18-2021

Improvement Guarantee Required. After the improvement plans have been approved and all inspection fees paid, but before approval of the record subdivision plat, 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:

Complete the improvements in accordance with the approved improvement plans under the observation and inspection of 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 of Cottleville 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.

No guarantee or deposit is required with the City for water, gas, electric or sanitary sewers required by another political subdivision of this State if such political subdivision confirms that its requirements for assurance of completion are satisfied. This provision shall not affect the intent or enforcement of any existing guarantee, escrow or renewal, extension or replacement thereof.

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 properties.

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 City Clerk 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 City Clerk, 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 changing State regulations 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 City approval of all categories of improvements subject to such escrow.

Individual Lot Deposit. If a builder, other than the developer who established the maintenance deposit, wishes to construct or install a building or structure, as defined in Section 405.020 of the Municipal Code, on any lot within the City, the builder shall be required to establish an individual lot deposit for any and all lots throughout the City on which the builder may construct or install a building or structure, prior to issuance of any building permits for constructing or installing any such building or structure. This individual lot deposit shall be established and accepted only as a cash deposit with the City Clerk as provided for under Subsection (C)(1).

Amount Of Deposit. The amount of the deposit required 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 Director of Public Works' 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 (2) for maintenance obligations shall be in the amount of ten percent (10%) of the Director 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.

Individual Lot Deposit. The deposit required of a builder pursuant to Subsection (C)(4) shall be in the amount of one thousand dollars ($1,000.00) per lot or ten thousand dollars ($10,000.00) in total for any and all lots throughout the City on which the builder may construct or install a building or structure.

Deposit Agreement — Releases. The deposit agreement shall be entered into with the City of Cottleville, 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 developer shall submit a written request for approval of release of the cash or the letter of credit as to all or any part of the developer's 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 Director of Public Works 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 Director of Public Works 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 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 of Public Works' discretion, release up to 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 subdivision shall be released within thirty (30) 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 for the subdivision. 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 subdivision 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 Works' demand for maintenance or for deposit of additional sums for the subdivision;

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 during development of the subdivision. 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 subdivision 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 Director of Public Works.

Final Construction Deposit Release. Upon final inspection and approval of all required improvements, 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 of the subdivision 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 Subsection (E) or (F), an appeal shall be filed with the City Administrator, and no such denial shall be deemed final until the City Administrator has ruled on the appeal, which ruling shall be no later than thirty (30) days after the date of receipt of the appeal by the City Administrator.

Inspections.

The Director 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 Director of Public Works by the developer, and no inspection shall be required until such request is received by the Director of Public Works. For purposes of this Section, an inspection request shall constitute and occur only on a completed written request on a form that shall include:

(1)

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

(2)

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 Director of Public Works from completing additional inspections at his/her discretion or as a courtesy to the developer.

10.

Individual Lot Deposit. Prior to issuance of a building permit for the construction or installation of any building or structure on any lot in the City, the builder shall establish an individual lot deposit, as provided in Subsection (C) above, with the City. Prior to the issuance of a building permit, the builder shall be responsible for the documentation of the existing site conditions, in writing. Failure to do so results in the builder waiving any right to object to pre-existing site conditions.

Individual Lot Deposit Use. During the construction or installation of any building or structure, the builder shall be responsible for repairing any damage to improvements resulting from vehicular traffic, construction equipment, or other construction activities, as well as abatement/remediation of nuisances caused by grading or related to such improvements. The builder shall provide a minimum of twenty-four (24) hours' notice prior to beginning any repair work so that a City representative may be present to verify that all work is completed in accordance with the approved improvement plans and all City standards. The individual lot deposit shall be retained by the City to guarantee the repair of any damage to improvements or grading resulting from the builder, its contractors, subcontractors, agents, or employees, constructing or installing any building or structure on any lot within the City, and, in addition to being subject to the remedies of Subsection (G) and other remedies of this Code, shall be subject to the immediate order of the Director of Public Works to defray or reimburse any cost to the City of any repair of such damage which the builder fails or refuses to perform. Except in emergency circumstances or where action is otherwise required before written notice can be provided, the Director of Public Works shall provide the builder with a written demand and opportunity to perform the repairs before having such repairs performed by the City. The Director of Public Works shall have the authority to require the individual lot deposit to be replenished by the builder if all or a portion thereof is drawn upon by the City.

With a passing inspection verifying that all repairs have been satisfactorily completed, the final occupancy permit for such lot will be issued and the one thousand dollar ($1,000.00) individual lot deposit, if applicable, will be released. If a ten thousand dollar ($10,000.00) City-wide individual lot deposit is held by the City, the final occupancy permit will be issued, however, no portion of that City-wide individual lot deposit shall be released. The City-wide individual lot deposit shall only be released upon mutual written consent of the City and the builder and only if occupancy permits have been issued for all building permits held by the builder. Any such release shall in no way be construed to release any person from any civil liability that may exist for, or waive any right of the City, to pursue a remedy for any defects or damages caused by any construction, improvement or development for which any deposit has been released.

When a one thousand dollar ($1,000.00) individual lot deposit is made with respect to an individual lot, the amount of such deposit remaining after an inspection of the improvements by the Director of Public Works may, at the Director of Public Works' discretion, be released.

If a ten thousand dollar ($10,000.00) City-wide individual lot deposit is held by the City and the City is forced to utilize a portion of those funds to repair damage to improvements as provided in this Section 410.330, the full value of the individual lot deposit must be replenished prior to issuance of any new building permits to that builder.

Maintenance Guarantee.

Scope And Duration. Upon commencement of installation of the required improvements within the subject subdivision, the developer shall be responsible for maintenance of the improvements, including undeveloped lots, streets, sidewalks, common areas and storm and drainage facilities, until the expiration of twelve (12) months after occupancy permits have been issued on ninety-five percent (95%) of all of the lots in the subdivision plat(s) 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. The maintenance obligation for required improvements to existing public roads or other existing public infrastructure already maintained by a public governmental entity shall terminate on and after the date such improvements have been inspected, deposit released and accepted by the Governing Body of the governmental entity for dedication. Irrespective of other continuing obligations, the developer's street de-icing and snow removal obligations with respect to one (1) or more streets shall terminate on the date the respective street or streets are accepted by the City for public maintenance.

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 this Code, 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 subdivision 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 improvements 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 and rights of the developer to construct, complete, install and maintain the improvements, and the obligation of a builder to repair any damage to such improvements, indicated on the approved improvement plans, and to provide for street maintenance, shall not cease until the developer or builder, as appropriate, shall be finally released by the Director of Public Works, nor shall any deposit agreements or obligations hereunder be assignable or transferable by the developer or builder. Furthermore, in the event of default, abandonment, or failure of the developer to complete the improvements, no other person, firm or entity shall acquire (whether by contract, judicial foreclosure or other means) any rights to the remaining escrow funds as a developer without entering into a separate deposit agreement with the City. 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, maintained or repaired as required, or if the developer, or builder if applicable, shall violate any provision of the deposit agreement, the Director of Public Works may notify the developer or builder to show cause within not less than ten (10) days why the developer or builder should not be declared in default. Unless good cause is shown, no building or other permit shall be issued to the developer or builder in the subdivision during any period in which the developer or builder is in violation of the deposit agreement or this Chapter relating to the subdivision. If the developer or builder fails to cure any default or present compelling reason why no default should be declared, the Director of Public Works shall declare the developer or builder 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, or the failure of a builder to complete the repair 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 or builder 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, builder or surety fails to comply with the Director of Public Works' 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 subdivision. For the purpose of this Subsection the "undeveloped portion" of the subdivision 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 of Public Works shall give the developer or builder ten (10) 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 subdivision and shall record an affidavit of such notice with the Recorder of Deeds. If, within the ten-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 on the undeveloped portion of the subdivision. The order shall be served upon the developer or builder 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 of Public Works 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 COTTLEVILLE 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 COTTLEVILLE 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 410 OF THE MUNICIPAL CODE OF THE CITY OF COTTLEVILLE.

If said notice is for a lot:

THIS LOT, (lot number), HAS BEEN DECLARED IN DEFAULT BY THE CITY OF COTTLEVILLE 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 COTTLEVILLE 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 410 OF THE MUNICIPAL CODE OF THE CITY OF COTTLEVILLE, MISSOURI.

The Director of Public Works shall not thereafter authorize construction to take place contrary to the order. 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 subdivision and a guarantee of public street maintenance has been provided; or

Suspend the rights of the developer, builder or any related entity to construct structures in any development platted after the effective date of such suspension throughout the City of Cottleville and such incorporated areas as are under City of Cottleville jurisdiction. The Director of Public Works shall give the developer or builder ten (10) 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, builder or related entities and shall record an affidavit of such notice with the Recorder of Deeds. If, within the ten-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 or builder, with a copy to the surety, as appropriate, and a copy recorded with the Recorder of Deeds. The Director of Public Works shall not thereafter authorize construction to take place contrary to the Director of Public Works' order. 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, or repair to damaged improvements, is assured.

Suspension Of Development Rights. From and after the effective date of this Section, if a developer, builder or any related entity has a subdivision 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) of this Section; and

The rights of the developer, builder 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 may also withhold any building or occupancy permits from this developer, builder or related entities until such compliance is cured. The City shall also have the right to partially or wholly remedy a developer or builder's deficiencies or breached obligations under this Chapter by set-off of any funds or assets otherwise held by the City of the developer or builder 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 or builder after the developer or builder has failed to timely cure the deficiencies. It shall be deemed a provision of every deposit agreement authorized under this Section that the developer or builder shall pay the City's costs, including reasonable attorneys' fees, of enforcing such agreement in the event that the developer or builder is judicially determined to have violated any provision herein or in such agreement. The developer or builder may appeal any decision taken pursuant to this Section by filing an appeal to the City Administrator whose decision shall be final.

Related Entities.

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

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.