Fences, walls, berms and landscaping materials required in this subchapter for screening and buffering shall be installed prior to occupancy.
(A) Improvement guarantees. It is recognized that vegetation used in landscaping or screening should be planted at certain times of the year to ensure the best chance of survival. In order to ensure compliance with this section and to reduce the potential expense of replacing landscaping or screening materials which were installed in an untimely or improper fashion, in lieu of requiring the completion and installation of these improvements prior to occupancy, the town may enter into an agreement with the subdivider/developer whereby the subdivider/developer shall agree to complete all required landscaping and screening. To secure this agreement, the subdivider/developer shall provide to the town one of the following guarantees. The amount of such guarantee shall be equal to 1.25 times the cost of purchasing, installing and completing landscaping and screening materials required under this chapter. All such guarantees shall be subject to the approval of the town and shall be made payable to the town. The subdivider/developer shall provide either one or a combination of the following guarantees:
(1) Surety performance bond(s):
(a) The subdivider/developer shall obtain a performance bond(s) from a surety company authorized to do business in the state. The duration of the bond(s) shall be until such time as the improvements are accepted by the Town Council.
(b) The subdivider/developer shall deposit cash, an irrevocable letter of credit or other instrument readily convertible into cash at face value, either with the town or in escrow with a financial institution designated as an official depository of the town.
(c) If cash or other instrument is deposited in escrow with a financial institution as herein provided, the subdivider/developer shall then file with the town an agreement between the financial institution and himself or herself guaranteeing the following:
1. The said escrow account shall be held in trust until released by the town and may not be used or pledged by the subdivider/developer in any matter during the term of the escrow; and
2. In the case of a failure on the part of the subdivider/developer to complete said improvement, the financial institution shall, upon notification by the town and submission by the town to the financial institution of a landscape architect’s estimate of the amount needed to complete the improvements, immediately either pay to the town the funds estimated to complete the improvements up to the full balance of the escrow account or deliver to the town any other instruments fully endorsed or otherwise made payable in full to the town.
(2) Cash or equivalent security.
(B) Default. Upon default, meaning failure on the part of the subdivider/developer to complete the required improvements in a timely manner as spelled out in the performance bond or escrow agreement, then the surety, or the financial institution holding the escrow account, shall, if requested by the town, pay all or any portion of the bond or escrow fund to the town up to the amount needed to complete the improvements based on a landscape architect’s estimate. Upon payment, the town, in its discretion, may expend such portion of said funds as it deems necessary to complete all or any portion of the required improvements. The town shall return to the bonding firm any funds not spent in completing the improvements. Should the amount of funds needed to complete the installation of all required improvements exceed the amount in the bond or escrow account, the subdivider/developer shall nonetheless be responsible for providing the funds to cover such costs. The subdivider/developer shall at all times bear the financial burden for the installation of all required improvements. A lien shall be attached to the property if the subdivider/developer fails to provide the full financial responsibility under this subchapter.
(C) Release of guarantee security. The town may authorize the Town Clerk to release a portion of any security posted as the improvements are completed and approved by the town. Such funds shall then be released within ten days after the corresponding improvements have been so approved.
(Ord. passed - -, § 5.4.11)