(A) As a condition of approval of a subdivision, site plan, special exception, or planned development, a financial guarantee may be required to assure the installation the improvements such as streets, curbing, landscaping, fencing, walls, screening, lighting, drainage facilities, sidewalks, driveways, utilities, and similar items.
(B) A bond, irrevocable letter of credit, or other guarantee acceptable to the town ("financial surety") must be executed prior to issuing an improvement location permit for single site developments or recording a secondary plat prior to the completion of improvements.
(C) Construction/performance surety.
(1) A performance surety to the town must include any street, sidewalk, pathway, storm sewer, erosion control, drainage facility, or any other facility to be dedicated to the town. On-site and off-site improvements shown on the approved plans must be covered by the performance surety.
(2) The performance surety must:
(a) Be 120% of the estimated costs determined by the town to be sufficient to complete the improvements in compliance with this chapter and the town's Construction Standards;
(b) Provide surety satisfactory to the town;
(c) Run to and be in favor of the town;
(d) Specify the time for the completion of all improvements; and
(e) Be on a form approved by the Council.
(3) Performance sureties must be effective from the date of approval to begin construction of the project and must not terminate until released by the Town Council. The performance surety must not be released until the Department certifies the improvements have been installed according to the intent of the approved construction plans.
(4) A dedicated account is created in a form acceptable to the State Board of Accounts to hold and accumulate all funds paid pursuant to the provisions of this section. Funds appropriated from the account must only be used for the completion of infrastructure improvements approved by the town and which had not been completed after having been initiated.
(5) The town may consider alternative forms of ensuring the proper completion of improvements to be dedicated to the town or for the benefit of the public.
(6) Upon completion of all improvements and installations as required by this subchapter, the subdivider furnishes appropriate documentation indicating that required improvements and installations have been constructed, installed, and completed in compliance with the provisions of this subchapter, the requirement of the Plan Commission and the provisions of other applicable ordinances of the Town of Bargersville. The Plan Commission prescribes procedures for determining whether all improvements, installations, and lot improvements have been constructed and completed as required by this subchapter.
(7) Upon acceptance of required improvements or installation, the accepting agency or department of the Town of Bargersville provides a completion letter to the subdivider that officially accepts maintenance responsibility, subject to the terms of the required maintenance guarantees.
(8) Two months prior to the expiration of the performance or maintenance guarantee, the Town Council determines if the public improvements have been installed consistent with applicable standards and special conditions or requirements, if any, established by the Town Council in approving the plat. If the improvements have not been installed to the satisfaction of the Town Council, the Council notifies the subdivider of their intent to secure the funds pledged by the performance or maintenance guarantee, or at their discretion, to grant one extension for a period up to 12 months, and the subdivider files with the Town Council a new performance or maintenance guarantee within the extension period. The Council may upon proof of difficulty, grant one additional extension of the completion date for a maximum period of up to 12 additional months, provided that the performance or maintenance guarantee submitted for this extension period meets all other requirements herein and the extension has been requested in writing prior to the expiration of the first extension.
(9) Failure to complete public improvements. In cases where a performance guarantee has been posted and the required public improvements have not been installed within its terms, or if the Council finds upon inspection that any of the improvements have not been constructed according to the approved construction plans, then the Council may thereupon declare the performance guarantee to be in default and cause all public improvements to be installed according to secondary approval regardless of the extent to which development has occurred at that point in time.
(10) Release or reduction of performance guarantee. A performance guarantee may be reduced upon actual acceptance of public improvements and any conditions imposed on the plat and then only by the amount originally estimated for the completion of said public improvements. The Town Council cannot accept required public improvements, nor reduce a performance guarantee, until the subdivider has submitted a certificate attesting to satisfactory completion and the subdivider's engineer or surveyor has provided the Council with certified "as built" construction plans of the public improvements including the utilities, indicating location, dimensions, materials, and other information required by the Council and reviewed by the Town Engineer or representative. Upon certification and evidence of satisfactory completion, the Administrator recommends acceptance to the Town Council and the Town Council accepts the applicable public improvements for maintenance according to established procedures.
(11) Temporary public improvements. The subdivider must build and pay all costs for temporary public improvements required by the Town Council and must maintain the same for the period specified. Prior to construction of any temporary public facility or improvement, the subdivider files with the Town Council a separate suitable performance guarantee for temporary facilities, which insures that the temporary facilities will be properly constructed, maintained, and removed (except for turnaround at ends of the peripheral stub streets intended for connection into adjacent future subdivisions).
(D) Maintenance surety.
(1) When the improvements are completed and accepted by the town, the performance surety may be released. For three years after the date of improvements were accepted by the town or applicable agency, the developer must make all repairs to the improvements which may become necessary due to improper workmanship or materials. Such maintenance does not include any damage to improvements resulting from forces or circumstances beyond the control of the developer.
(2) The developer must provide a maintenance surety to the town for any street, sidewalk, pathway, storm sewer, erosion control, drainage facility, or any other facility dedicated to the town. On-site and off-site improvements shown on the approved plans must be covered by the maintenance surety.
(3) The maintenance surety must:
(a) Run to and be in favor of the town;
(b) Be in a sum of not less than 25% of the performance bonds amount;
(c) Provide surety satisfactory to the town;
(d) Warrant the workmanship and materials used in the installation of the improvements;
(e) Include a certification from the developer that all improvements have been made according to the approved plans.
(4) Maintenance sureties are effective from the date of acceptance and must not terminate until the Public Works Department certifies inspection and approval of the improvements.
(E) Waiver of required public improvements. The Town Council may defer or waive at the time of primary approval, subject to the appropriate conditions, the provision of any or all such public improvements as in its judgment, are not requisite in the interest of the public health, safety, and general welfare, or are inappropriate because of inadequacy or lack of connecting facilities.
(F) Use of funds. Any funds received from the performance and maintenance guarantees can only be used for making improvements, installations or repairs that were guaranteed by a bond or irrevocable letter of credit.
(Ord. 2022-17, passed 7-19-2022)