HomeMy WebLinkAboutO-2785ORDINANCE NO. 2785
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MARYSVILLE, WASHINGTON ENACTING A NEW CHAPTER
19.51 MARYSVILLE MUNICIPAL CODE CONSOLIDATING AND
ESTABLISHING TERMS FOR ACCEPTABLE SECURITY FOR
PERFORMANCE AND MAINTENANCE OF IMPROVEMENTS
ASSOCIATED WITH DEVELOPMENT AND AMENDING THE
FOLLOWING SECTIONS OF THE MUNICIPAL CODE TO
MAKE THEM CONSISTENT WITH THE PROVISIONS OF THE
NEW CHAPTER: 15.20.010, 19.16.030. 19.24.150(2),
19.24.270(2),19.24.300(3), 19.28.060(2), 19.38.040(8), 19.40.080,
19.42.130(9),20.24.240,20.24.260,20.56.270 AND 20.56.290.
Whereas the city has a number of provisions in Chapter 15, 19 and 20 of the
Marysville Municipal Code addressing fees for monitoring, and security for the
performance and maintenance of improvements associated with development;
Whereas it is in the best interest of the City to consolidate these provisions in a
single chapter to establish consistent standards for development security for performance
and maintenance of improvements;
Now, therefore, it is hereby ordained by the City Council of the City of Marysville,
Washington as follows:
Section 1. A new Chapter 19.51 Marysville Municipal Code is hereby enacted reading as
follows:
Chapter 19.51
SECURITY FOR PERFORMANCE AND MAINTENANCE
Sections
19.51.010 Purpose
19.51.020 Security for Performance-form
19.51.030 Security for Maintenance-form
19.51.040 Amount of Obligation
19.51.050 Adjustments to Obligation for type of Security; Changed
Circumstances
19.51.060 Enforcement against Security
19.51.070 Forfeiture of Security
19.51.080 Right to refuse Security
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Section 19.51.010 Purpose.
The purpose of this Chapter is to establish consistent standards for the acceptance
of security to insure the completion of improvements associated with development and to
insure warranty for the improvements completed. This Chapter should be liberally
construed. It is the intent of the City to exercise the maximum authority allowed under
state law to protect the citizens of the City and to hold development accountable for the
timely completion and maintenance of improvements.
Section 19.51.020 Security for Performance -form.
Whether in the form of a bond, irrevocable letter of credit, or assignment of cash
deposit, the undertaking for performance shall contain the following provisions:
a. a stated amount calculated in accordance with the requirements of this
chapter;
b. a detailed description of the improvements to be completed and the deadline
by which completion must occur;
c. A provision reading as follows:
The security for performance is obligated, bound and guarantees
completion of the work by the deadline. If the work is not fully completed
by the deadline to City standards, upon receipt of a Notice from City to
complete the work within thirty days (the "thirty (30) day deadline"), the
work shall be undertaken or the entire security for performance shall be
forfeited and paid to the City by the thirty (30) day deadline. If the work is
undertaken, but then there is a material failure to complete the work in a
timely fashion, the security for performance herein shall be forfeit in its
entirety and paid to the City. The security for performance shall extend to
all of the City's administrative overhead costs and to all legal costs and
reasonable attorneys fees incurred in seeking performance by the principal
and any other obligated party to the maximum value or penal sum of the
security.
Any security for performance received by the City after the effective date of this Chapter
shall be construed to contain the terms of subsections a, band c, whether the said
provisions are expressly set out or not.
Section 19.51.030 Security for Maintenance -form.
Whether in the form of a bond, irrevocable letter of credit, or assignment of cash
deposit, the undertaking for maintenance shall contain the following provisions:
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a. a stated amount calculated in accordance with the requirements of this
chapter;
b. a detailed description of the warranty, maintenance to be performed, and any
monitoring and reporting requirements, and the duration of each;
c. A provision reading as follows:
The security for maintenance is obligated and bound to warrant, monitor,
report, and maintain the improvements for the stated duration. If City
shall grant acceptance of some improvements but not all improvements at
the same time, , the security for maintenance shall become effective as to
each improvement as and when that improvement is accepted and shall
remain in effect for the stated duration for each improvement from the
date of its acceptance.. If required monitoring, reporting, maintaining and
repair and replacement in accordance with warranty does not occur in
accordance with City standards, upon receipt of a Notice from City to
perform within thirty days (the "thirty (30) day deadline") the performance
shall be undertaken or the entire security for maintenance shall be
forfeited and paid to the City by the thirty (30) day deadline. If
performance is undertaken, but then there is a material failure to complete
the performance in a timely fashion, the security for maintenance herein
shall be forfeit in its entirety and paid to the City. The security for
maintenance shall extend to all of the City's administrative overhead costs
and to all legal costs and reasonable attorneys fees incurred in seeking
performance by the principal and any other obligated party to the
maximum value or penal sum of the security.
Any security for maintenance received by the City after the effective date of this
Chapter shall be construed to contain the terms of subsections a, band c, whether
the said provisions are expressly set out or not.
Section 19.51.040 Amount of Obligation.
The amount of the security, either for performance or maintenance, subject to
adjustment under Section 19.51.050, shall be calculated as follows:
a. Security for performance. The principal amount of the security, whether in
the form of a bond, irrevocable letter of credit, or assignment of cash deposit,
shall be calculated as follows:
Amount equals current fair market cost for performance adjusted for inflation
for term of obligation, multiplied by 1.5 to reflect city's cost if it must perform
under competitive bidding and prevailing wage, plus 30% as City's
administrative overhead costs and anticipated legal costs and reasonable
attorneys' fees, provided the total amount for administrative costs and
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anticipated legal costs and reasonable attorneys' fees shall not exceed
$100,000..
b. Security for maintenance. The principal amount of the security, whether in
the form of a bond, irrevocable letter of credit, or assignment of cash deposit,
shall be calculated as follows:
Amount equals 10% of the fair market value of the improvement, with a
minimum amount being $5,000.00, plus 30% as City's administrative
overhead costs and anticipated legal costs and reasonable attorney's fees,
provided the total amount for administrative costs and anticipated legal costs
and reasonable attorneys' fees shall not exceed $100,000.
c. Anticipated legal costs and Reasonable attorneys' fees. Anticipated legal
costs and Reasonable attorney's fees are those City costs incurred for securing
compliance or collecting funds and any other legal costs incurred through the
completion of the work.
d. Administrative overhead costs. Administrative overhead costs are those
internal costs incurred for staff time in observing the condition of
improvements or maintenance, and taking action to secure compliance,
together with costs incurred to consultants to observe, monitor and report
concerning work or maintenance.
Section 19.51.050 Adjustment to Amount of Obligation for type of Security;
Changed Circumstances.
Notwithstanding the calculation of the amount of the security under Section
19.51.040, the City shall have the authority to increase the amount of obligation to reflect
the City's experience and history in obtaining performance or required maintenance with
the type of security offered, bond, irrevocable letter of credit, or assignment of cash
deposit. If the City's experience and history would require an increase in the amount of
the obligation by more than an additional 25% the City shall refuse the security offered.
Should the security once received not provide adequate assurance of performance due to
changed circumstances, including increased cost of performance, the City through the
community development director may require that the amount of security for
performance or maintenance be increased to reflect then fair market costs of
performance.
Section 19.51.060 Enforcement against Security.
All legal actions to enforce either security for performance or maintenance may
be brought in the Superior Court of Washington with venue in Snohomish County. The
City shall be entitled to an award oflegal costs and reasonable attorneys' fees in any such
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proceedings against the principal and against the surety to the maximum penal sum of the
security held.
Section 19.51.070 Forfeiture of Security.
If the City has issued a notice establishing a thirty (30) day deadline, and
performance or maintenance, monitoring, reporting, repair or replacement have not
occurred by the thirty (30) day deadline, the security for performance, and/or the security
for maintenance, as the case may be shall be forfeited in its entirety to the City, not as a
penalty, but as a material breach of the obligation or undertaking secured. If performance
or maintenance, monitoring, reporting, repair or replacement is undertaken, but not
timely completed in accordance with City standards, the security for performance or
maintenance shall also be forfeited in its entirety to the City, not as a penalty, but as a
material breach of the obligation or undertaking secured.
Section 19.51.080 Release of Security.
Upon full and timely performance ofthe work, and/or full and timely
performance of maintenance, monitoring, reporting, repair or replacement, the City shall
release its security for performance and/or security for maintenance as the case may be.
Section 19.51.090 Right to refuse Security.
The City reserves the right to refuse security for performance and to require that
performance of work as a condition of approval be completed prior to final acceptance.
Section 2. Construction Inspection Fees "Bond Administration Fee (maintenance) in
MMC Section 15.12.010 is hereby amended to read as follows:
Security for Performance/Security for
Maintenance fee $20.00 per lot or unit,
with a minimum amount being $250.00.
Section 3. MMC Section 19.16.030 Landscaping materials and maintenance is hereby
amended to read as follows:
19.16.030 Landscaping materials and maintenance.
Landscaping materials and the maintenance thereof shall conform to and
be installed in accordance with the overall site development plan.
Landscaping shall be installed prior to building occupancy; provided, that
the planning department may authorize up to a 120-day delay where
planting season conflicts would produce a high probability of plant loss.
Security for maintenance in accordance with Chapter 19.51 MMC shall be
required for a minimum duration of one year.
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Section 4. MMC 19.24.150 Subsection (2) is hereby amended to read as follows:
(2) A contingency plan shall be established for compensation in the event
that the mitigation project is inadequate or fails. Security for maintenance
in accordance with Chapter 19.51 MMC is required for performance,
monitoring and maintenance in accordance with the terms of the
mitigation agreement. The security for maintenance shall be for a period
of five years, but the community development department may agree to
reduce the security in phases in proportion to work successfully completed
over the duration of the security.
(a) During monitoring, use scientific procedures for establishing the success of
failure of the project;
(b) For vegetation determinations, permanent sampling points shall be
established;
(c) Vegetative success equals 80 percent survival of planted trees and shrubs and
80 percent cover of desirable understory or emergent species;
(d) Submit monitoring reports on the current status of the mitigation project to
the community development department. The reports are to be prepared by a
qualified scientific professional and reviewed by the community development
department and should include monitoring information on wildlife, vegetation,
water quality, water flow, stormwater storage and conveyance, and existing or
potential degradation, and shall be produced on the following schedule:
(i) At time of construction;
(ii) Thirty days after planting;
(iii) Early in the growing season of the first year;
(iv) End of the growing season of first year;
(v) Twice the second year; and
(vi) Annually thereafter;
(e) Monitor between three and five growing seasons, depending on the
complexity of the wetland system. The time period will be determined and
specified in writing prior to the implementation of the site plan;
(f) If necessary, correct for failures in the mitigation project;
(g) Replace dead or undesirable vegetation with appropriate plantings, based on
the approved planting plan or MMC 19.24.140;
(h) Repair damages caused by erosion, settling or other geomorphological
processes;
(i) Redesign mitigation project (if necessary) and implement the new design; and
U) Correction procedures shall be approved by a qualified scientific professional
and the community development department.
Section 5. MMC 19.24.270 Subsection (2) is hereby amended to read as follows:
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(2) A contingency plan shall be established for compensation in the event
that the mitigation project is inadequate or fails. Security for maintenance
in accordance with Chapter 19.51 MMC is required for performance,
monitoring and maintenance in accordance with the terms of the
contingency plan. The security for maintenance shall be for a period of
five years, but the community development director may agree to reduce
the security in phases in proportion to work successfully completed over
the duration of the security.
Section 6. MMC 19.24.300 Subsection (3) is hereby amended to read as follows:
(3) When alteration of a geologic hazard area is approved, the city of
Marysville at the discretion of the community development director and/or
city engineer may require security for performance or security for
maintenance in accordance with the standards of Chapter 19.51 MMC
Section 7. MMC 19.28.060 Subsection (2) is hereby amended to read as follows:
(2) The City engineer may require the applicant to furnish security for
maintenance in accordance with the provisions of Chapter 19.51 MMC.
Section 8. MMC 19.38.040 Subsection (8) is hereby amended to read as follows:
(8) Completion Prior to Occupancy. All required improvements and other
conditions of the MHP rezone and final site plan approval shall be met
prior to occupancy of any site by a mobile/manufactured home; provided
that completion may be accomplished by phases if approved by the
community development director and security for performance in
accordance with the provisions ofChapter19.51 MMC and acceptable to
the community development director is received by the City. The
community development director may also require security for
maintenance for a period of up to five years in accordance with the
provisions of Chapter 19.51 MMC.
Section 9. MMC 19.40.080 is hereby amended to read as follows:
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19.40.080 Completion prior to occupancy -Phasing.
All required site improvements and other conditions of the permit and
final site plan shall be met prior to occupancy of any site by a recreational
vehicle; provided that completion may be accomplished by phases if
approved by the community development director and security for
performance in accordance with the provisions of Chapter 19.51 MMC
and acceptable to the community development director is received by the
City. The community development director may also require security for
maintenance for a period up to five years in accordance with the
provisions of Chapter 19.51 MMC.
Section 10. MMC 19.42.130 Subsection (9) is hereby amended to read as follows:
(9) Prior to the issuance of any building occupancy permits in the BP, GI
or LI zone the developer(s) shall either complete all required
improvements of a public nature, such as but not limited to streets,
sidewalks, storm runoff and erosion control system, street signs and street
lights to the required specification or enter into an agreement with the city
to construct such development as may be approved together with security
for performance and security for maintenance in accordance with the
provisions of Chapter 19.51 MMC. Required improvements of a private
nature, such as but not limited to private roads and landscaping, shall be
constructed prior to building occupancy or, subject to city approval, be
constructed in conformance with a performance schedule delineated as
part of the final plan which shall be tied to the issuance of building,
occupancy or other permits. Performance of the delineated schedule shall
be secured by security for performance supplied in accordance with the
provisions of Chapter 19.51 MMC. All improvements shall be completed
within six months of issuance of security for performance. Extensions of
security for performance may be granted by the director of public works.
As improvements are completed, and upon application by the developer,
the director of public works is authorized to partially release the security
for performance. The security for performance may be issued for phased
divisions of the development as may be approved by the city.
Section 11. MMC 20.24.240 is hereby amended to read as follows:
20.24.240 Performance guarantee requirements.
(1) Site improvements shall be completed prior to approval of the final
plat or short plat, or at the discretion of the city engineer, or his designee,
security for performance in accordance with the provisions of Chapter
19.51 MMC may be supplied. The duration for any such security for
performance shall not be longer than one (1) year.
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(2) Security for perfonnance shall not be released until all applicable
departments responsible for acceptance and maintenance of improvements
have approved said release
Section 12. MMC 20.24.260 is hereby amended to read as follows:
20.24.260 Warranty requirements for acceptance of final improvements.
(1) After satisfactory completion of roadway improvements, including
streets, curbs, gutters and sidewalks, and stonn water drainage
improvements, and after satisfactory completion of on-site retention
facilities, if any, the developer shall provide the city with security for
maintenance in accordance with the provisions of Chapter 19.51 MMC.
The warranty period for the security for maintenance shall be a minimum
oftwo (2) years.
(2) For the purpose ofthis title, final approval shall not be given until such
time as all of the required improvements have been satisfactorily installed
in accordance with the requirements of preliminary approval or security
for perfonnance and security for maintenance has been provided and
accepted by the city.
Section 13. MMC 20.56.270 is hereby amended to read as follows:
20.56.270 Perfonnance guarantee requirements.
(1) Site improvements shall be completed prior to approval of the final plat or
short plat or at the discretion of the city engineer, or his designee, security for
perfonnance in accordance with the provisions of Chapter 19,51 MMC may be supplied.
The duration for any such security for perfonnance shall not be longer than one (1) year.
(2) Security for perfonnance shall not be released until all applicable departments
responsible for acceptance and maintenance of improvements have approved said release.
Section 14. MMC 20.56.290 is hereby amended to read as follows:
20.56.290 Warranty requirements for acceptance of final improvements.
(1) After satisfactory completion of roadway improvements, including streets,
curbs, gutters and sidewalks, and stonn water drainage improvements, and after
satisfactory completion of on-site retention facilities, if any, the owner and/or developer
shall provide the city with security for maintenance in accordance with the provisions of
Chapter 19.51 MMC. The warranty period for the security for maintenance shall be a
minimum of two (2) years.
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(2) For the purpose of this title, final approval shall not be given until such time
as all of the required improvements have been satisfactorily installed in accordance with
the requirements of preliminary approval or security for performance and security for
maintenance has been provided and accepted by the city.
Section 15. Severability.
If any word, phrase, sentence, provision, or portion of this ordinance is declared
to be invalid or unenforceable, it shall not affect validity or enforceability of the
remaining words, phrases, sentences, provisions or portions of this ordinance.
Section 16. The provisions of this Ordinance shall become effective five (5) days after
publication by summary.
PASSED by the City Council and APPROVED by the Mayor this 27th
day of July, 2009.
CITY OF MARYSVILLE
BY~Lb
Dennis L. Kendall, MAYOR
ATTEST:
Approved as to form:
BYCJ~~,W~
, Grant Weed, CITY ATTORNEY
Date of Publication: July 29, 2009
Effective Date (5 days after publication): August 3, 2009
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