(A) In order to ensure proper installation of subdivision improvements, the developer shall designate the type of assurance in a form and method acceptable to the Town Attorney and approved by Town Council in conjunction with review of the final plat.
(B) A final copy of the assurance shall be submitted to staff within 90 days of Council approval, and prior to the recordation of any final plat approved by the Town Council. The amount of the assurance shall be based on a cost estimate prepared by a registered civil engineer in an amount to cover 120% of the complete installation of the improvements. This assurance shall provide for its forfeiture to the town in the event the improvements are not accepted by the town by the declared completion date due to the default of the developer. Any portion of the forfeiture in excess of the expenses incurred by the town in connection with the installation of the improvements shall be returned to the developer. The owner must provide the town with one of the following types of financial assurances for the completion of the construction of the improvements required for the development of the subdivision:
(1) Cash or surety bond. The developer shall deposit with the Town Clerk cash or a surety bond. The surety bond shall be executed by the developer with a corporation duly licensed and authorized to transact surety business in the state, as surety. The bond shall be in favor of the town, shall be continuous in form and shall require that the total aggregate liability of the surety for all claims shall be limited to the face amount of the bond, regardless of the number of years the bond is in force and shall provide that:
(a) The bond or cash shall be released upon satisfactory performance of the work and its acceptance by the Town Council;
(b) Progress payments may be made to the developer upon request from any cash deposit made. The progress payments shall be made in accordance with standards established by the Town Engineer;
(c) The bond may be cancelled by the developer upon 30 days written notice to the town, provided that other security satisfactory to the town has been deposited which will cover the obligations of the developer which remain to be performed; and
(d) Any work abandoned or not completed by the developer may be completed by the town, which shall recover the construction costs from the developer or the bonding agent.
(2) Assurance of construction through loan commitment. In lieu of providing assurance of construction in the manner provided above, the developer may provide assurance of construction of all required utility and infrastructure improvements, by delivering to the town in a manner described above, an appropriate agreement acceptable to the Town Attorney between an approved lending institution and the developer which provides a statement that funds sufficient to cover the entire cost of installing the required improvements, including engineering and inspection costs and the cost of replacement or repairs of any existing streets or improvements demanded by the town in the course of development of the subdivision have been deposited with the approved lending institution by the developer. The agreement shall provide that the funds in the approved amount are specifically allocated and will be used by the developer, or on their behalf, only for the purpose of installing the subdivision improvements. The town shall be the beneficiary of the agreement or the developer's rights shall be assigned to the town, and the Town Engineer shall approve each disbursement of the funds. The agreement may also contain terms, conditions and provisions normally included by the lending institutions in loan commitments for construction funds, or as may be necessary to comply with statutes and regulations applicable to the lending institutions.
(3) Alternative assurances. In lieu of providing a surety bond or an agreement between the subdivision developer and an approved lending institution, the Town Attorney may approve and recommend to Town Council the alternative assurances that it deems sufficient to guarantee and assure construction of the required improvements, including a contractual agreement by an approved lender guaranteeing the performance of the subdivision developer, or a performance deed of trust, in first lien position, or the other assurances as the Town Council shall deem sufficient and appropriate.
(4) Assurance of warranty. The developer shall warranty all work against defective workmanship or materials for a period of one year from the date of its final acceptance.
(Prior Code, Ch. 4, Art. V, § 4-436) (Ord. 432-06, passed 6-19-2006)