Before any secondary plat is approved and affixed with the Commission seal, the subdivider shall construct all streets and other required improvements in accordance with the approved construction plans, or the subdivider shall provide a guarantee of performance as specified in this section. The performance guarantee shall include an amount to guarantee completion of all public facility and all other requirements contained in this ordinance including, but not limited to, soil preservation, final grading, lot drainage, erosion and detention seeding, removal of debris and waste, fencing, and all other lot improvements required by the Commission.
A. All performance guarantees must be acceptable to and be approved by the Board of Public Works and Safety/Board of County Commissioners, and shall be in such form, sufficiency and manner of execution satisfactory to the City/County Attorney.
B. If the subdivision is in phases, the Board of Public Works and Safety/Board of County Commissioners may require that the performance guarantee be in such amount as is necessary for each phase filed for secondary approval and may defer guarantees for the remaining phases of the plat until they are offered for approval. However, in the establishment of performance guarantees, overall subdivision improvements must be considered and any improvements which are necessary for more than one phase must be constructed or guaranteed at the time of approval of the first applicable phase.
C. In order to obtain secondary approval it is permissible for the subdivider to construct part of the improvements and guarantee the remaining part of the improvements, if approved by the Board of Public Works and Safety/Board of County Commissioners.
D. Performance guarantees may consist of any of the following:
1. The subdivider may post a performance bond payable to the city/county in an amount equivalent to 120% of the estimated cost of completion of all required improvements. Such estimate shall be prepared by the subdivider and reviewed by the City/County Engineer or appropriate body who shall recommend the amount of guarantee to the Board of Public Works and Safety/Board of County Commissioners. Such performance bond shall comply with all statutory requirements and the Board of Public Works and Safety/Board of County Commissioners may request information on the bonding company and may deny a performance bond if necessary.
2. The subdivider may submit a certificate of deposit or certified check made out to the city/county and/or the subdivider, to be held by the City Clerk-Treasurer/County Auditor, in an amount equivalent to 120% of the estimated cost of the required improvements. Such estimate shall be prepared by the City/County Engineer or appropriate body. If the subdivider is named singly or jointly on such certificate or check, then the subdivider shall endorse it before submitting it to the city/county so that the city/county may secure the funds. If other than escrow account is used, the subdivider shall receive any interest accrued on funds provided under the terms of this section.
3. The subdivider may submit irrevocable letters of credit in behalf of the subdivider and securable by the city/county in an amount equivalent to 120% of the estimated cost of completion of the uncompleted portion of required improvements. In the event an irrevocable letter of credit is utilized it shall be written for a maximum length of two years and the Executive Director, two months prior to the expiration of the letter of credit, shall determine if the public improvements have been accepted for maintenance by the city/county and if they have not been accepted shall so notify the subdivider of intent to secure the funds and then commence procedures to secure the funds pledged by such letter of credit.
4. The Board of Public Works and Safety/ Board of County Commissioners may, at its discretion, accept another financial guarantee which the Board of Public Works and Safety/Board of County Commissioners deems appropriate to accomplish the objectives of this ordinance.
E. Any performance guarantee submitted under this section shall be for a period not to exceed two years. The Board of Public Works and Safety/Board of County Commissioners may grant an extension of up to one year for the completion of improvements, upon evidence that such extension is justified. Before granting an extension, the Board of Public Works and Safety/County Commissioners shall secure a new estimate of the cost of the improvements from the City/County Engineer, or appropriate body, and if the estimate has increased, the Board of Public Works and Safety/County Commissioners shall require an increase in the amount of the guarantee.
F. The performance guarantee shall be released or allowed to expire by the Board of Public Works and Safety/Board of County Commissioners only upon certification that all required improvements have been installed satisfactorily by the certifying professional engineer or land surveyor and improvements accepted. The Board of Public Works and Safety/Board of County Commissioners may, at its discretion, approve a partial release of the financial guarantee upon certification that a portion of the improvements has been completed satisfactorily. The City/County Engineer or appropriate body shall provide an estimate of the cost of the remaining improvements, and a guarantee sufficient to cover such cost shall be retained by the city/county.
G. For subdivisions for which no performance guarantee has been posted, if the required improvements are not completed within the period of validity of the subdivision approval, the approval shall be deemed to have expired. In those cases where a performance guarantee has been posted and the improvements have not been installed prior to the expiration of the guarantee, the Board of Public Works and Safety/Board of County Commissioners shall declare the guarantee to be in default and cause all improvements to be installed according to the approved plans, regardless of the extent of building development at the time the guarantee is declared to be in default. The Board of Public Works and Safety/County Commissioners may grant an extension.
H. The subdivider shall build and pay for all costs of any temporary public improvements required by the Commission and shall maintain same for the period specified by the Commission. Prior to construction of any temporary public facility of improvement, the subdivider shall file with the Board of Public Works and Safety a separate suitable bond for temporary facilities, which bond shall insure that the temporary facilities will be properly constructed, maintained, and removed.
(1980 Code, Ch. 154, § 5.01) (Ord. 2001-4, passed 3-27-2001)