11-3-13: PERFORMANCE GUARANTEE:
   A.   Prior to the issuance of any permit for any work on a subdivision, the subdivider shall obtain and submit a performance guarantee for the construction and installation of public and private improvements to the village engineer for approval and acceptance in accordance with this section.
   B.   The subdivider shall submit a guarantee for the following improvements, as deemed necessary by the village engineer:
      1.   Permanent subdivision monuments and lot corner markers.
      2.   Transportation system improvements, including:
         a.   Public and private streets, and all related frontage and intersection improvements.
         b.   Streetlights.
         c.   Parkway tree plantings.
         d.   Street signs, signals and apparatus.
         e.   Public and private sidewalks, trails and bike paths.
         f.   Other traffic related improvements contemplated as part of the subdivision or development.
      3.   Environmental protection and site preparation measures, including:
         a.   Grading and related site preparation work;
         b.   Erosion and sediment controls during the various phases of site development including site and lot grading, construction entrances, diversion dikes, silt fences, sediment traps, seeding and site stabilization; and
         c.   Other special environmental protection measures which are a component of the final engineering plans.
      4.   Public utility systems, including:
         a.   Public and private storm sewer system (pipes, inlets, manholes, swales, detention ponds, and all related structures and apparatus);
         b.   Public water system (pipes, valves, fire hydrants and related system improvements); and
         c.   Sanitary sewer system (pipes, manholes, lift stations and related system improvements).
      5.   Common facilities which are contemplated as part of the subdivision specified in the final engineering plans.
      6.   Other public and private improvements specified in the final engineering plans.
   C.   The applicant shall submit to the village engineer estimates for the cost of construction (or actual executed construction contracts) for public and private improvements contemplated in the final engineering plan. The village engineer shall review such estimates or construction contracts and, if acceptable, approve the amount of the performance guarantee. The amount of the performance guarantee shall be based upon:
      1.   One hundred twenty five percent (125%) of the total estimate of construction costs and inspection fees for all guaranteed improvements; or
      2.   One hundred ten percent (110%) of the total construction costs as indicated in an approved and executed construction contract, plus inspection fees for all guaranteed improvements.
   D.   Performance guarantees shall be in a form approved by the village engineer and shall specify the following terms and conditions:
      1.   The guarantee shall have an expiration date not less than three (3) months beyond the date specified in the approved subdivision or development agreement.
      2.   Not less than thirty (30) days prior to the expiration of such guarantee, the village administrator shall be given written notice by means of certified or registered mail, indicating that such guarantee is to expire. No guarantee shall expire absent such notice.
      3.   Failure of the subdivider to install such guaranteed improvements prior to the scheduled completion date, as specified in the approved site development schedule, shall be considered a default by the subdivider and the issuing institution.
      4.   The guarantee shall only be released or reduced by the issuing institution upon written certification by the village engineer stating:
         a.   That said guarantee may be released or reduced in accordance with this section; and
         b.   The amount of such discharge or reduction.
      5.   If at any time the village determines that the institution issuing the guarantee is without adequate capital, assets, earnings and liquidity as required in this section, is unable to meet any federal or state requirement for reserves, is insolvent, is in danger of becoming any of the foregoing, or is otherwise in danger of being unable to honor such guarantee at any time during its term, or if the village otherwise reasonably deems itself to be insecure, then the village shall have the right to demand that the subdivider provide a replacement guarantee from an institution satisfactory to the village. Such replacement guarantee shall be deposited with the village not later than ten (10) days following such demand.
      6.   a. If the subdivider fails or refuses to complete the construction of the public and private improvements covered by the guarantee or fails or refuses to correct any defect or deficiency in such improvements upon request by the village, or in any other manner fails or refuses to meet fully any of its obligations under the guarantee or the applicable subdivision or development agreement, then the village may, in its sole and absolute discretion, retain all or any part of the guarantee.
         b.   The village thereafter shall have the right to exercise any other action it deems reasonable and appropriate to mitigate the effects of such failure or refusal and to reimburse itself from the proceeds of the guarantee for all of its costs and expenses, including legal fees and administrative expenses. If the funds remaining in the guarantee are insufficient to repay fully the village for all such costs and expenses, and to maintain a cash reserve equal to the required guarantee during the entire time such guarantee should have been maintained, then the subdivider shall, upon demand of the village therefor, immediately deposit with the village such additional funds as the village determines necessary.
   E.   Performance guarantees for the installation of public and private improvements shall be in a form approved by the village administrator. The following types of performance guarantee are acceptable, provided they are consistent with the following regulations:
      1.   Cash Escrow: A cash deposit may be used as a guarantee, provided the total amount of the guarantee required is placed with the village administrator and administered in accordance with the provisions of the subdivision or development agreement.
      2.   Irrevocable Letter Of Credit And Cash; Surety Bond: An irrevocable letter of credit or surety bond may be used as a guarantee, provided such letter of credit or surety bond is issued by a financial institution approved by the village administrator, the administration of such letter of credit or surety bond conforms to the terms of the subdivision or development agreement, and the letter of credit or surety bond is accompanied by a cash deposit in an amount not less than ten percent (10%) of the total guarantee amount. The cash deposit shall, at all times until released, as provided herein, be maintained at not less than ten percent (10%) of the initial total guarantee amount. The financial institution issuing the irrevocable letter of credit or surety bond shall be:
         a.   Insured by the federal deposit insurance corporation or federal savings and loan insurance corporation;
         b.   Chartered in the state of Illinois or have a registered agent in Illinois;
         c.   Have adequate capital, assets, earnings and liquidity to ensure the financial soundness of the issuing institution, as determined by the village administrator; and
         d.   In the case of a surety bond, be licensed and authorized by the Illinois department of insurance to sell and issue sureties in the state of Illinois.
   F.   The subdivider may make a written request to the village engineer to partially reduce the amount of the approved performance guarantee. The village engineer shall be authorized to approve such partial reductions in the amount of the performance guarantee, provided:
      1.   There shall be no more than three (3) partial reductions approved in the amount of the performance guarantee during the life of the subdivision;
      2.   Partial reductions shall be authorized only following the acceptable completion of the following improvements:
         a.   All underground storm drainage, sanitary sewer and water supply systems have been properly installed, and all erosion and sediment controls are operational;
         b.   All curb, gutter, sidewalk and base course paving for public and private streets have been properly constructed; and
         c.   All lots have been graded and all storm detention facilities are operational;
      3.   The inspection reports for the subdivision evidence acceptable completion of the above;
      4.   The amount of such partial reduction shall not exceed seventy five percent (75%) of the estimated cost to construct such improvements;
      5.   In no event shall the amount of the performance guarantee be reduced to a level which, in the sole and absolute opinion of the village engineer, would not allow the village to complete the installation of public and private improvements associated with the subdivision; and
      6.   In no event shall any portion of the cash deposit be reduced prior to final release of the performance guarantee pursuant to this subsection.
   G.   Notwithstanding anything to the contrary in subsection F of this section, public improvements shall not be considered accepted by the village unless and until each of the following reviews and actions have been successfully performed:
      1.   Filing with the village engineer a formal written request to accept the improvements by the subdivider;
      2.   Certification by the village engineer that all or specific individual public improvements required to be constructed or installed have been fully or individually completed in accordance with all applicable plans and specifications and that the inspected construction or installation thereof has been approved;
      3.   Submission by the applicant of all appropriate as built drawings of improvements, as approved by the village engineer;
      4.   All appropriate village code enforcement complaints have been resolved to the satisfaction of the village administrator;
      5.   All necessary maintenance guarantees have been received and approved by the village engineer; and
      6.   The adoption by the board of trustees of a resolution officially accepting the improvements and releasing the applicable performance guarantee on behalf of the village.
   H.   Following the village acceptance of all public improvements and the certification by the village engineer that all public and private improvements included in the guarantee have been one hundred percent (100%) completed to the satisfaction of the village engineer, the village administrator shall release the guarantee.
   I.   Prior to the acceptance of required public improvements by the village, the subdivider shall execute a maintenance agreement, acceptable in form and substance to the village attorney, for the repair or replacement of defective materials and workmanship for a period of time extending one year from the effective date of village acceptance of such improvements. A maintenance guarantee conforming with the requirements of this subsection shall be submitted with the maintenance agreement. The amount of the maintenance guarantee shall be ten percent (10%) of the total amount of the initial performance guarantee for the subdivision. The village engineer shall be authorized to execute such agreements on behalf of the village following board of trustees acceptance of such improvements. If, after one year, no defects in workmanship or materials have developed, the maintenance guarantee shall be released by the village engineer. In the event any defects are identified by the village engineer during the term of the maintenance guarantee, the balance of such guarantee shall be released only after: 1) the village has been fully reimbursed for amounts expended in correcting defective improvements; or 2) the subdivider or developer has successfully repaired all such defects to the satisfaction of the village engineer. (Ord. 05-02, 1-18-2005)