Before recording of an approved final plat, a performance guarantee acceptable to the village must be provided as required in this chapter. One of the following options for guarantee of improvement completion shall be utilized:
(A) Cash escrow.
(1) Establishing account. An escrow account in the amount required shall be established with a financial institution (hereinafter referred to as the escrowee) which meets the approval of the City Manager. The account shall be administered by the escrowee in accordance with the provisions of an escrow agreement to be negotiated by the City Manager and the owner, and/or subdivider and approved by the City Solicitor. Such agreement shall contain provisions for specific application of such funds; partial contract payments; contract retention percentages until completion; prorated reduction of deposit excess; final escrow settlement; and other pertinent administrative matters as may be required.
(2) Fund disbursement. The escrowee shall disburse funds from time to time for the purposes provided upon presentation of, and in accordance with, payout orders issued by the owner's/subdivider's engineer and approved by the City Engineer. Such disbursements shall not be subject to approval or disapproval by the owner/subdivider or escrowee or their agents other than the owner/subdivider's engineer; however, for accounting purposes, the village shall send to the owner/subdivider a copy of the approved engineer's estimate for payment at time of village approval. Each payout order shall be accompanied by all appropriate sworn statements, affidavits and supporting waivers of lien in full compliance with the Ohio Mechanics Lien Law.
(3) Excess fund balance. If, at any time, the City Manager shall notify escrowee in writing that the balance of funds then remaining undisbursed under said escrow account is more than sufficient to cover the cost of construction fees and maintenance hereinabove provided, which said notice shall specify the reduced balance then deemed sufficient, and if escrowee shall concur in such determination, escrowee shall pay over to the owner any excess of funds over such reduced balance then remaining undisbursed under said escrow account.
(B) Letter of credit. The owner/subdivider may file a straight, commercial letter of credit from any financial institution acceptable to the City Manager and the City Solicitor in a form acceptable to the City Solicitor. The letter of credit shall be in an amount, determined by the City Manager, sufficient to pay for the cost of construction of the improvements and all engineering costs, including the engineering and inspection fees of the village. The letter of credit must provide that the issuing financial institution will pay to the village, or as the village directs, such amounts as may be required to complete the improvements according to the approved specifications. The letter of credit should provide that its amount will be reduced from time to time as payments for improvements approved by the City Manager are made. The letter of credit shall be irrevocable for at least six months and must provide that if any balance remains at the expiration of any time limit placed on it, said balance will be deposited with the village in a cash escrow or a new letter of credit in the amount of the unpaid balance will be issued or a surety bond as prescribed in division (D) will be provided.
(C) Insufficient fund balance. If, at any time before the construction of all required improvements has been completed, the balance of funds remaining undisbursed under said escrow account or letter of credit is not sufficient, in the sole judgment of the City Manager, to cover the cost of construction of said improvements and all engineering costs including the engineering and inspection fees of the village, or if by reason of any order, decree or writ of any court, or for any other reason, the said undisbursed balance of funds shall be withheld, diminished or otherwise unavailable for the purpose provided in this chapter, the owner/subdivider agrees to cause the balance to be increased to such amount as shall be required by the village for such purposes, in the exercise of its judgment, or shall provide such other guarantee of performance as may be required by the village.
(D) Surety bond.
(1) Form. The bond shall be in a form and with a bonding company, and approved by the City Solicitor.
(2) Time limit. The bond shall be payable to the City of the Village of Indian Hill and be enforceable by same on or beyond a date 36 months from the date of final plat approval.
(3) Release of any bond required herein shall be conditioned on final approval and acceptance of the improvements by the Planning Commission.
(Ord. 25-89, passed 9-25-89; Am. Ord. 03-97, passed 2-24-97)