(A) To ensure compliance with the provisions of this chapter and any conditions imposed thereunder, the Planning Commission and/or Zoning Commission, as required, or Board of Appeals may require that a performance guarantee be deposited with the village to ensure the faithful completion of improvements in accordance with of the Michigan Zoning Enabling Act, Public Act 110 of 2006, being M.C.L.A. §§ 125.3101 et seq., as amended.
(B) Improvements for which the village may require a performance guarantee include, but are not limited to, landscaping, berms, walls, lighting, surfacing of drives, parking, and acceleration/ deceleration lanes, traffic-control devices, sewer or water line expansion, stormwater retention areas, and land reclamation activities.
(1) Scope of requirement. The performance guarantee can apply only to those specific features and actions which the Planning Commission and/or Zoning Commission, as required, or Board of Appeals considers necessary to protect natural resources or the health, safety, or welfare of residents, project users, or the general public. A performance guarantee may not be required for the entire project. The guarantee is limited to those project components specifically designated by the Planning Commission and/or Zoning Commission, as required, or Board of Appeals.
(2) General requirements.
(a) A performance guarantee shall be required by the Planning Commission and/or Zoning Commission, as required, on the applicable portion(s) of a site plan under any of the following circumstances:
1. To meet the costs of improvements required to be made by the applicant to public facilities owned by the village as a condition of site plan approval;
2. To ensure completion of common elements of site plan affecting two or more parties; and
3. To ensure the completion of those portions of a site plan which will not be completed by the applicant prior to a request for occupancy.
(b) The Planning Commission and/or Zoning Commission, as required, or Board of Appeals may require a performance guarantee on any other specific improvement when determined by resolution that the guarantee is necessary to protect the natural resources of the village or the health, safety, or welfare of residents, project users, or the general public.
(3) General conditions.
(a) The performance guarantee shall be submitted at the time of issuance of the permit authorizing the activity or project. No building permit or related village permit shall be issued, unless the Building Inspector is satisfied that the guarantee is in full compliance with this subchapter.
(b) The performance guarantee shall be in the form of:
1. A cash deposit or deposit by certified check drawn on a bank authorized to do business in the state;
2. An irrevocable letter of credit issued on behalf of the village by a bank authorized to do business in the state; or
3. A surety bond in a form and manner acceptable to the Village Attorney. The costs of the review of a surety bond by the Village Attorney shall be paid by the applicant as part of the issuance of a permit.
(c) The amount of the performance guarantee shall be sufficient to cover the estimated cost of the improvements for a project which has received site plan approval or zoning variance. The applicant shall provide an itemized listing of estimated costs and a proposed time schedule to complete all of the improvements determined to require a performance guarantee. The Zoning Official shall review the submitted costs and shall determine an accurate amount for the performance guarantee. In determining the amount, the Zoning Official may consider signed contracts or subcontracts supplied by the applicant or the Zoning Official may secure or require that the applicant secure a sealed statement from a licensed architect or engineer verifying the estimates.
(d) Cash funds or a certified check made payable to the village shall be deposited by the village into an interest-bearing account in a financial institution with which the village regularly conducts business.
(e) In the case of a guarantee exceeding $2,000, and by request of the applicant, the guarantee may be released to the applicant in an amount proportional to the work completed on various elements; provided, that a minimum of 10% shall be retained on each element until the satisfactory completion of the entire project. The amount of work completed shall be based upon an inspection and determination by the Zoning Official.
(f) An amount not to exceed the actual cost of the installation of landscape materials may be retained by the village for at least one year following the installation of said materials to ensure proper maintenance and, if necessary, replacement. This amount shall be released to the applicant upon certification by the Zoning Official that all landscape materials are being maintained in good condition.
(g) Prior to the acceptance of a public improvement by the village and upon the recommendation of the Village Engineer, the Zoning Official shall require a maintenance bond for the public improvement in an amount not to exceed 35% of the total cost of the Improvement to remain in effect for a period not to exceed three years.
(h) The unexpended balance of a performance guarantee, including interest accrued, shall be returned to the applicant following inspections by the appropriate village officials and a positive determination by the Zoning Official that the required improvements have been satisfactorily completed and that all other requirements of this subchapter are met.
(4) Unsatisfactory completion of improvements.
(a) When required improvements are not installed or maintained within the time stipulated or are not completed in accordance with the standards set forth within this chapter or as agreed upon between the applicant and the Planning Commission and/or Zoning Commission, as required, or Board of Appeals, the Zoning Official may order the improvements completed by the village or by an independent contractor, or may order that the site be returned to its original condition.
(b) The Zoning Official shall order the completion of the improvements and so notify the applicant by certified mail at least 14 calendar days prior to the undertaking of completion. During this time period, the applicant may seek an order from a court of competent jurisdiction to prevent the action by the village. All costs incurred by the village for the completion of the improvements or the restoration of the site, including direct administrative costs, shall be assessed against the performance guarantee, including any interest accrued on any funds deposited in escrow.
(5) Subdivision improvements. This subchapter shall not be applicable to improvements for
which a cash deposit, certified check, irrevocable bank letter of credit, or surety bond has been deposited with the village by the applicant pursuant to the Subdivision Control Act, Public Act 288 of 1967, being §§ 560.101 through 560.293, as amended.
(Ord. 259, passed 10-24-1995; Ord. 339, passed 4-15-2001; Ord. passed 2-1-2012)