§ 11-2-4. Assurance for completion and maintenance of improvements.
(A)
Required improvements and required subdivision development agreement.
1.
Public improvement plans review.
(a)
General application requirements. Public improvement plans shall be prepared by or under the supervision of a professional engineer registered in the State of Texas as required by state law governing such professions. Plans submitted for review by the City shall be dated and bear the responsible engineer's name, serial number and the designation of "engineer," "professional engineer," or "P.E." and an appropriate stamp or statement near the engineer's identification, stating that the documents are for preliminary review and are not intended for construction. These plans shall conform in all details to the City's standards as to the design, grade, location, size and quality of materials and construction. Final plans acceptable to the City shall bear the seal and signature of the engineer and the date signed on all sheets of the plans.
(b)
Public improvement plan review and inspection procedure.
(1)
Copies of the public improvement plans, and the required number of copies of the plat, shall be submitted to the engineering and development department for approval prior to submittal of a final plat.
(2)
Plans and profiles submitted by the developer's engineer shall be prepared on standard 60-centimeter by 90-centimeter (24-inch by 36-inch) sheets. Plans and profiles shall be shown at scales of 1:500 or 600 (1″ to 50′) horizontal and 1:20, 24, or 25 (1″ to 2′) vertical, or at a scale which is approved by the engineering division. The plans shall contain all necessary information for construction of the project, including screening walls if proposed, and other special features. Each sheet of the plans shall contain a title block including space for the notation of revisions. This space is to be completed with each revision to the plan sheet and shall clearly note the nature of the revision and the date the revision was made.
(3)
Two copies each of plans and specifications shall initially be submitted for preliminary review and comment by the City engineer, who shall return his comments within a period of seven days. Upon receipt of those comments, revisions shall be made as required and not less than six copies with revisions (nine copies if a development agreement is to be prepared) shall be submitted not later than 11 days prior to a Council meeting at which a development agreement is to be considered, if applicable, or not later than seven days prior to desired final approval if a development agreement is neither desired nor required. Upon the City engineer's approval, and following completion of a development agreement, if applicable, he will release the plans for construction, subject to approval of the preliminary plat by the commission and payment of all inspection fees, stamping all copies with his approval, retaining four copies (seven copies if a development agreement has been completed) for city records and use, and returning all other copies to the developer's engineer for the purpose of construction site use. The developer's engineer shall then return a set of plans to become the permanent property of the engineering division of the City. Upon release of approved plans, one set of plans, bearing the original stamp of approval by the City engineer, shall remain available to the contractors on the project site, and only plans bearing the original stamp of approval shall be used to verify the approved manner of construction.
(4)
Upon approval of the preliminary plat and improvement plans by the engineering division, the developer may enter into a contract for the construction of the improvements as so planned; provided, however, that the construction and installation of the improvements shall be inspected by inspectors of the City to ensure that the installation is made in accordance with the plans and the City's standard specifications which, in every instance, shall be a part of said installation contract.
(5)
When the project is ready for construction, line and grade stakes will be set by the developer's engineer and will be inspected by the engineering division. These stakes will not be set until after the developer's surveyor has properly staked on the ground all points of curves, including radius points for alley returns and street intersections, all points of tangency, and all block corners. Lot corners shall be staked by the owner's surveyor and inspected by the engineering division prior to authorization by the City engineer for a building permit to be issued as provided in Section 11-2-4(D).
(c)
This procedure shall also apply to approval of a final plat, if a preliminary plat is not required.
2.
Development agreement and guarantee of completion of public improvements.
(a)
Public improvements required. Except when waived or deferred by the Council, subdivision development improvements conforming to adopted city standards shall be provided by the developer for any subdivision, or portion thereof, within the City and within its extraterritorial jurisdiction. Said improvements shall be completed prior to the approval of a final plat by the City or shall be completed according to a development agreement and ensured by a security as specified herein.
(b)
Development agreement. In the event the property owner elects to delay installation of all or some of the required public improvements to a time after approval of the final plat and the City agrees, the property owner shall enter into a development agreement incorporating approved development plans and by which he covenants to complete all required public facility improvements and lot improvements, including, but not limited to, soil preservation, removal of debris and waste, and all other lot improvements required by the City engineer, no later than 12 months following the date upon which the final plat is approved. Where the final plat is only a portion of the approved preliminary plat, the agreement shall contain a general schedule of phasing and construction for the entire plat. To the extent that the City waives any portion of the security required by this Chapter, the agreement also shall contain provisions requiring construction of all public facility and lot improvements upon demand by the City. The development agreement shall contain such other terms and conditions as are agreed to by the property owner and the City in addition to the following required terms:
(1)
Agreement to maintain the public improvements until such improvements are accepted by the City.
(2)
Agreement to cooperate with city inspectors and to abide by all rules and regulations relating to city inspection.
(3)
Designation of the extent of the City's participation in construction costs and the sources of reimbursement from fees to be collected from other developments.
(4)
When required by applicable Texas statute, an agreement to abide by the competitive bidding requirements and procedures set forth under Texas law.
(5)
A plan for the phasing of final plats of portions of the area of the preliminary plat, if the entire area will not be included in a single final plat, each phase thereof being subject to a determination by the Council that it will provide adequate street and alley circulation and otherwise represents a logical and well-planned phasing of the development.
(c)
Security. Whenever the City permits a property owner to enter into a development agreement, the owner shall provide sufficient security to ensure completion of the required public improvements. The security shall be in the form of either:
(1)
A cash escrow; or
(2)
A letter of credit drawn upon a state or national bank. Said letter of credit shall (a) be irrevocable, (b) be of a term sufficient to cover the completion period plus 30 days, and (c) require only that the City present the issuer with a sight draft and a certificate signed by an authorized representative of the City certifying to the City's right to draw funds under the letter of credit; or
(3)
A performance bond or surety bond for the same time period in a form approved by the City attorney securing performance of the provisions of the development agreement by the developer.
Said security for completion of all improvements shall be issued in the amount of 100 percent of the funds estimated by the City engineer to be necessary to pay for all required public improvements, including all promises and conditions contained in the development agreement.
In addition to all other security for completion of those public improvements required in the development agreement, the owner shall provide a performance bond and payment bond from the contractor, with the City as a co-obligee. Such performance and payment bonds shall be equal to the total amount set forth in the contractor's contract.
The issuer and form of any surety bond and letter of credit shall be subject to the approval of the City attorney. The performance and payment bonds must be executed by a corporate surety in conformance with V.T.C.A., Government Code ch. 2253, as amended.
(d)
Waiver of development agreement or security. The Council may waive the requirement of a development agreement or all or a portion of the security requirements of this Chapter if it finds that the public health, safety and general welfare will not be harmed by such waiver, taking into consideration the extent of public facility and lot improvements required to be installed, the likelihood that such improvements will be installed by the subdivider within the period specified in subsection (a), the impacts that may result if such improvements are not timely installed, and the hardship to the subdivider if development agreement and/or security requirements are imposed. A waiver of development agreement or security requirements shall be conditioned on execution of covenants by the subdivider, stating that the public facility and lot improvements will be constructed on demand by the City.
(e)
Reserved.
(f)
Release of security. As portions of the public improvements are completed in accordance with the development agreement, city regulations, and the approved public improvement plans, the developer may make application to the director to reduce the amount of the original letter of credit, bond or cash escrow. If said director is satisfied that such portion of the improvements has been completed in accordance with city standards, he may cause the amount of the letter of credit, bond or cash escrow to be reduced by such amount that he deems appropriate, so that the remaining amount of the letter of credit or bond or cash escrow adequately insures the completion of the remaining public improvements. Final release of the security shall be subject to a retainage of 20 percent of the total until a certificate of satisfactory completion has been issued by the City engineer as specified by Section 11-2-4(C)2 hereof.
(g)
Governmental units. Governmental units to which these contract and security provisions apply may file, in lieu of the security, a certified resolution or ordinance from officers or agencies authorized to act in their behalf, agreeing to comply with the provisions of this Section and affirming that current funds have been appropriated for the purpose of paying for the construction of the required public improvements.
3.
Failure to complete improvements. For plats for which no development agreement has been executed and no security has been posted, if the public improvements are not completed within the period specified by the City, the preliminary plat approval shall be deemed to have lapsed and further proceedings on the plat shall terminate, and the obligation to construct improvements required by this Chapter shall immediately mature. In those cases where a development 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:
(a)
Declare the agreement to be in default and require that all the public improvements be installed regardless of the extent of completion of the development at the time the agreement is declared to be in default.
(b)
Obtain funds under the security and complete the public improvements itself or through a third party.
(c)
Assign its right to receive funds under the security to any third party, including a subsequent owner of the subdivision or addition, in whole or in part, in exchange for that subsequent owner's promise to complete the public improvements on the tract.
(d)
Approve an extension of the period of the security.
(e)
Exercise any other rights available under the law.
4.
Temporary improvements. The property owner shall build and pay for all costs of temporary improvements required by the commission and shall maintain those temporary improvements for the period specified by the commission. Prior to construction of any temporary facility or improvement, the owner shall file with the City a separate development agreement and security in an appropriate amount for temporary facilities, which agreement and security shall ensure that the temporary facilities will be properly constructed, maintained, and removed.
5.
Acceptance of dedication offers. Acceptance of formal offers of dedication of streets, public areas, easements, and parks shall be by established procedures for such acceptance and shall be documented in the official files maintained by the City secretary or city engineer. Approval of a plat, whether preliminary or final, shall not be deemed to constitute acceptance of any proposed dedication and does not impose on the City any duty regarding the maintenance or improvement of any dedicated improvement, unless the City makes an actual appropriation of the dedicated improvement by entry, use, or improvement or written acceptance by the City engineer.
(B)
Construction procedures.
1.
Construction of all public works projects shall be in accordance with the most recent version of City of Midland standard construction specifications and shall be in accordance with development plans approved under Section 11-2-4(A).
2.
Preconstruction conference. The city engineer may require that all contractors participating in the construction shall meet for a preconstruction conference to discuss the project prior to beginning work. If a conference is to be required, the City engineer shall notify the developer at or prior to the time that the public improvement plans are approved.
3.
Conditions prior to authorization. Prior to authorizing construction, the City engineer shall be satisfied that the following conditions have been met:
(a)
The preliminary plat shall have been approved by the commission or Council as required.
(b)
All required contract documents shall be completed and filed with the City engineer.
(c)
All necessary off-site easements or dedications required for public facilities not shown on the final plat must be conveyed solely to the City, in a form approved by the City attorney and with proper signatures affixed. The original of the documents, and filing fees as determined by the City secretary, shall be delivered to the engineering division prior to approval and release of the engineering plans.
(d)
All contractors participating in the construction shall be presented with a set of approved plans bearing the stamp of release of the engineering division, for use on the job site.
(e)
A complete list of the contractors, their representatives on the site, and telephone numbers where a responsible party may be reached at all times must be submitted to the City engineer.
(f)
All applicable fees must be paid to the City.
(C)
Inspection of public improvements.
1.
General procedure. Construction inspection shall be supervised by the City engineer. Construction shall be in accordance with the approved plans and the City of Midland standard specifications. Any change in design required during construction should be made by the engineer whose seal and signature are shown on the plans. Another engineer may make revisions to the original engineering plans if so authorized by the owner of the plans and if those revisions are noted on the plans or documents. All revisions shall be approved by the City engineer. If the City engineer finds upon inspection that any of the required public improvements have not been constructed in accordance with the City's construction standards and specifications, the developer shall be responsible for completing and/or correcting the public improvements in accordance with said standards and specifications.
2.
Certificate of satisfactory completion. The City will not accept dedication of required public improvements until the applicant's engineer or surveyor has certified to the City engineer, through submission of detailed construction record drawings on a survey plat of the property, showing the location, dimensions, materials, and other information required by the commission or city engineer. The construction record documents shall also include a complete set of drawings of the paving, drainage, water, sanitary sewer, or other public improvements, showing that the layout of the line and grade of all public improvements is in accordance with construction plans for the plat. Each construction record sheet shall show all changes made in the plans during construction and on each sheet there will be a stamp bearing the signature of the engineer and date. The engineer shall provide to the City the construction record information in the form of one reproducible drawing of each of the utility plan sheets and one digital Auto Cad ".dxf" or ".dwg" file of the master layout sheet of water, sewer, paving and drainage facilities. Alternatively, the developer may choose not to submit a digital file and shall instead pay a fee which will be established in the schedule of platting fees for conversion of the plans to digital form by the City.
Further, the City will not accept dedication of required public improvements until an escrow deposit, letter of credit, or performance bond, conforming to the same requirements as Section 11-2-4(A)2(d), and providing security of the warranty, in the amount of the total cost of the improvements, that the improvements are free from defects for the period of the required warranty, whether by the contractor or the developer, has been presented to the City.
When such requirements have been met, the City engineer, on behalf of the City, shall thereafter accept the public improvements for dedication in accordance with the established procedure. Acceptance of the development shall mean that the developer has transferred all rights to all the public improvements to the City for use and maintenance. The city engineer may, at his discretion, accept dedication of a portion of the required public improvements, provided adequate surety has been given for the completion of all of the required public improvements. Upon acceptance of the required public improvements, the City engineer shall submit a certificate to the developer stating that all required public improvements have been satisfactorily completed.
3.
Maintenance of facilities. The developer shall maintain all required public improvements until acceptance of the public improvements by the City.
(D)
Issuance of building permits and certificates of occupancy.
1.
No building permit shall be issued for a lot or building site unless the site has been created in compliance with Section 4-1-4, "Site requirements," subsection (C), "Creation of a building site," of the building code, and all public improvements as required for any applicable subdivision plat have been completed, as attested to by the City engineer through the issuance of a certificate of completion, except as permitted below.
(a)
The city engineer may authorize the building official to issue permits for nonresidential and multifamily (apartment) development provided that a final plat has been approved by the City and construction plans have been released by the City engineer. Building construction will not be allowed to surpass the construction of fire protection improvements.
(b)
The city engineer may authorize the building official to issue residential building permits for a portion of a subdivision, provided that all public improvements, including lot monumentation, have been completed and accepted for that portion of the development, including but not limited to those required for fire and emergency protection, and a development agreement has been approved by the City for completion of all remaining public improvements and there remains adequate security to complete all public improvements.
2.
No certificate of occupancy shall be issued for a building or the use of property unless all subdivision improvements necessary to serve the property have been completed and accepted.
(Ord. No. 7333, § 1, 6-14-1994; Ord. No. 7702, § 1, 1-27-1998)