City of Ellisville, MO ARTICLE VII Required Improvements

Section 405.270 Improvements in General.

[Ord. No. 3187 §1, 11-5-2014]

A. Plans for improvements shall be prepared by a registered professional engineer; and the streets, storm sewers, sidewalks, pedestrianways (unless waived by the City Engineer) and sanitary sewers shall be staked by a registered land surveyor.

B. The owner of the tract may prepare and secure tentative approval of a final subdivision plat of the entire tract, but the improvements shall be either installed or guaranteed to the extent and in the manner required by Section 405.280 (in the form of a land subdivision bond or an escrow agreement) in any portion of the area for which a record plat is approved for recording.

C. Utilities, including water mains, streets, storm and sanitary sewers and sewage treatment plants, shall be designed and built or guaranteed to the extent and in the manner required by Section 405.280 (the escrow) to serve the platted area or be designed and built or guaranteed to the extent and in the manner required by Section 405.280 (the escrow) to serve the area to be initially developed in such a manner that they can easily be expanded or extended, as the case may be, to serve the entire drainage area or watershed.

D. Acceptance And Final Approval. Before the developer's obligation to Ellisville is terminated, all required improvements shall be constructed under the observation and inspection of the inspecting agency and accepted for maintenance or given final approval by Ellisville.

Section 405.280 Improvements Installed or Guaranteed.

[Ord. No. 3187 §1, 11-5-2014]

A. 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 and creation of a maintenance guarantee for public streets. The developer shall either:

1. Complete the improvements in accordance with the approved improvement plans under the observation and inspection of the appropriate public agency and create the required public street maintenance guarantee; or

2. Deposit cash or an irrevocable letter of credit under a deposit agreement with the City of Ellisville or post a land subdivision bond to guarantee the construction, completion and installation of the improvements shown on the approved improvement plans within the improvement completion period approved by the Council, which shall not exceed three (3) years.

3. For plats approved after the effective date of this Section, a guarantee or deposit is required with the City for sanitary and storm sewers within the jurisdiction of MSD; however, upon confirmation from MSD that its requirements for assurance of completion are satisfied, the City may release an amount not to exceed that which is confirmed as received by MSD. This provision shall not affect the intent or enforcement of any existing guarantee, escrow or renewal, extension or replacement thereof.

B. Deposit agreements shall provide that there shall be deposited with the City of Ellisville:

1. A cash amount not less than the Department of Planning and Engineering estimate of the cost of the construction, completion and installation of the improvements indicated on approved improvement plans;

2. A sight draft irrevocable letter of credit which may be renewable, issued under the Uniform Customs and Practice for Documentary Credits (1983 Revision) (International Chamber of Commerce Brochure No. 400), as amended, or as otherwise approved by the City Attorney payable at a local financial institution in an amount not less than the Department's estimate of the cost of the construction, completion and installation of the improvements indicated on the approved improvement plans, with a final expiration date of not less than six (6) months after the initial period allowed for completion of subdivision improvements, drawn in favor of the Treasurer of the City of Ellisville and guaranteeing to the City of Ellisville the availability, from time to time upon demand, the balance under the deposit agreement and letter of credit not therefore released.

C. The land subdivision bond shall be approved by the City Engineer and City Attorney and shall be issued by a surety company qualified to do business in Missouri and shall insure or guarantee, to the extent of the Department's estimate of the cost thereof, the construction, completion and installation of the improvements indicated on the approved improvement plans and creation of the public streets and related stormwater facilities maintenance guarantee as specified in Subsection (D)(3) herein.

D. The deposit agreement shall be held by the City and remain in effect until such time as the City Engineer shall release the cash, reduce the obligation secured under the letter of credit or release the bond. Such releases or reductions may be in part and may occur from time to time as work on constructing improvements is performed; provided, however, that:

1. The City Engineer shall release the cash or reduce the letter of credit obligation or release the surety from 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 Department. In order to accommodate the development process while protecting the public from deficient and uncompleted improvements, Ellisville will accomplish releases within thirty (30) days of written request to approve improvements in accordance with this Section. Such a written request shall be in such form as required by the City Engineer and shall not be made until the improvements are susceptible of inspection and approval in accordance with standards established by the City Engineer (i.e., concrete work has reached final cure, streetlights have been activated, etc.). In any instance where more than thirty (30) days elapses from receipt of a written request from a developer for inspection until either release or report to the developer of defects or deficiencies, the City Engineer shall promptly convene an interdepartmental task force representing the Planning, Inspection and Engineering Department and the City Counselor to review the City's failure to respond in such time. The task force may direct release if it finds that failure to respond was unjustified and that the public interest will not be materially harmed by such release. The City Engineer shall report the actions of the task force in writing to the City Council each quarter.

2. If, at the end of the improvement completion period, all the improvements shown on the approved improvement plans have not been completed, the City Engineer may extend the improvement completion period for a period of up to two (2) years if after review by the 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.

3. The City Engineer shall not release more than ninety-five percent (95%) of the sum estimated for the construction cost of public streets and related stormwater facilities. The developer continues to be responsible for defects, deficiencies and damage to public streets and related stormwater improvements during development. Upon acceptance of the public streets and related stormwater facilities for City maintenance, the remaining five percent (5%) of the original construction cost estimate therefor shall be transferred from the deposit account to a special transit account and shall be subject to the order of the City Engineer to defray or reimburse any cost to the City of Ellisville for the maintenance or repair of public streets and related stormwater facilities related to the subdivision which the developer fails or refuses to perform. Funds shall be so held until such time as the development is complete, as determined by the City Engineer. Street and related stormwater improvement funds relating to streets shall be held until the earlier of completion of development, as determined by the City Engineer, or one (1) year after acceptance. Funds shall then be released if there are no defects or deficiencies found 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 City Engineer. At the election of the developer, the cash deposit may be replaced with a letter of credit approved by the City Attorney in the same amount.

E. The obligation of the developer to construct, complete and install 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 City Engineer. 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 and accepted or if the developer shall violate any provision of the deposit agreement as determined by the City Engineer, the City Engineer shall notify the developer and surety or letter of credit provider to show cause within not less than ten (10) days why the developer should not be declared in default. If the developer or surety or letter of credit provider fails to cure any default or present compelling reason why no default should be declared, the City Engineer shall declare the developer in default and may take any one (1) or more of the following acts:

1. 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 City Engineer for such purposes as letting contracts to bring about the completion of the improvements indicated on the approved improvement plans or other appropriate purposes in the interest of the public safety, health and welfare;

2. Require the surety to perform on the bond and pay to the Department the balance of the bond not theretofore released;

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

F. If the surety fails to comply with the City Engineer's requirements under Subsection (E)(2) above or if the City Engineer determines that forfeiture of the remaining deposit or surety balance under Subsection (E)(1) or (E)(2) above will not allow completion of the required improvements and if the developer fails to comply with the City Engineer's requirements under Subsection (E)(3) above, the City Engineer may:

1. 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 City Engineer shall give the developer ten (10) days' written notice of an order under this Subsection, with copies to all issuers of letters of credit or 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 City Engineer is not convinced by compelling evidence that completion of the improvements is adequately assured and maintenance of streets assured as provided herein, the City Engineer shall order construction suspended on the undeveloped portion of the subdivision. The order shall be served upon the developer, with a copy to the issuer of the letter of credit or 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 City Engineer 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 City Engineer:

a. If said notice is for a subdivision:

THIS SUBDIVISION, (name of subdivision), HAS BEEN DECLARED IN DEFAULT BY THE ELLISVILLE CITY ENGINEER. NO DEVELOPMENT, CONSTRUCTION, BUILDING OR DEMOLITION IN ANY MANNER SHALL TAKE PLACE WITHIN THE LIMITS OF THIS SUBDIVISION UNTIL SUCH TIME AS THE ELLISVILLE CITY ENGINEER 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, ELLISVILLE MUNICIPAL CODE.

b. If said notice is for a lot:

THIS LOT, (lot number), HAS BEEN DECLARED IN DEFAULT BY THE ELLISVILLE CITY ENGINEER. NO DEVELOPMENT, CONSTRUCTION, BUILDING OR DEMOLITION IN ANY MANNER SHALL TAKE PLACE WITHIN THE LIMITS OF THIS LOT UNTIL SUCH TIME AS THE ELLISVILLE CITY ENGINEER 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, ELLISVILLE MUNICIPAL CODE.

The City Engineer shall not thereafter authorize construction to take place contrary to the City Engineer's order. The suspension shall be rescinded in whole or in part only when the City Engineer 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 provided; or

2. 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 Ellisville. The City Engineer shall give the developer ten (10) days' written notice of an order under this clause, with a copy to issuers of letters of credit or sureties known to the City Engineer 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-day period after notice is given, the City Engineer is not convinced by compelling evidence that completion of the improvements is adequately assured and maintenance of streets assured as provided herein, the City Engineer shall order construction suspended. The order shall be served upon the developer, with a copy to the issuer of the letter of credit or surety, as appropriate, and a copy recorded with the Recorder of Deeds. The City Engineer shall not thereafter authorize construction to take place contrary to the City Engineer's order. The suspension shall be rescinded only when the City Engineer is convinced that completion of the improvements is adequately assured and public street maintenance assured.

G. From and after the effective date of this Section, if a developer or any related entity has a subdivision development improvement guarantee that is in default, as determined by the City Engineer, including any escrow or bond under any prior version of this Section:

1. The City Engineer shall be authorized, but not be limited, to thereafter pursue the remedies of Subsection (F) of this Section; and

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

H. If the surety fails to perform on the bond or any other party fails to comply with any provision of this Section, the City Engineer may recommend that the Ellisville City Attorney take appropriate legal action.

I. No surety shall be eligible to provide the performance bond required herein, nor shall any financial institution be eligible to provide a letter of credit, unless approved in advance by the City Engineer and City Attorney on such terms and criteria as may be established by the Accounting Officer and the City Attorney.

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

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

2. 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.

K. Transition.

1. Escrow agreements approved and provided under prior versions of this Section shall continue to be enforceable in accordance with their terms and the provisions of the ordinance in effect at the time of their approval and shall in addition be subject to the remedies provided in this Section.

2. Escrow agreements approved and provided under prior versions of this Section under which the original term for completion of improvements has not lapsed may be submitted to the City Engineer for extension or replacement in accordance with the terms of the ordinance in effect at the time of their original approval, provided that such an extended or replacement escrow may only be held by a financial institution approved by the City Attorney.

3. Until April 1, 1994, notwithstanding the other provisions of this Section, with respect to an escrow agreement under prior versions of this Section under which the original term for completion of improvements has lapsed, the City Engineer may approve and submit to the City Council for approval a replacement escrow agreement with a third party escrow holder in a form substantially similar to escrow agreements permissible under prior versions of this Section, provided that such an escrow may only be held by a financial institution approved by the City Attorney and shall be approved only if accompanied by a schedule of when improvements are to be completed approved by the City Engineer.