§ 151.203  ASSURANCES.
   Three types of subdivision assurances are established for the purpose of assuring proper, safe, and timely installation and maintenance of required subdivision improvements: restoration assurances; performance assurances; and maintenance assurances. Assurances shall be required for all subdivisions. The assurance requirement may be waived by the Director when no engineered improvements are required or if other means are available to ensure compliance with the standards of this chapter.
   (A)   General requirements.  All restoration, performance, and maintenance assurances shall be prepared in accordance with the approved formats provided in Appendix P of this chapter, and shall be submitted to the Director prior to approving a final plat. The county shall not accept any assurance that fails to meet the formats approved by the county, or a form acceptable to the State’s Attorney’s Office. The County Treasurer shall be the beneficiary of all assurances.
   (B)   Forms of assurances.  The following forms of assurances may be used to fulfill the assurance obligation of this section.
      (1)   Cash bond.  A cash bond shall be made payable to “Treasurer, County of Lake”. Cash bonds may be provided in the form of a cashier’s check, bank draft, certified check, or bank money order. A certificate of deposit is not an accepted form of assurance.
      (2)   Irrevocable letter of credit.  An irrevocable letter of credit will be accepted, provided that the bank securing the letter of credit and upon whom presentation shall be made is located within the Chicago metropolitan area and insured by the Federal Deposit Insurance Corporation.
      (3)   Surety bonds.  Surety bonds shall be provided by a surety or insurance company that is authorized by the Illinois Department of Insurance to sell and issue sureties in this state and the surety or insurance company must have a claims office located in the Chicago metropolitan area. At the time the principal offers the bond to the county, and prior to acceptance of the bond by the county, the principal shall provide the name and contact information of the attorney and bond agent associated with the surety for communication purposes in the event of a default on the terms of the bond.
   (C)   Restoration assurances.
      (1)   Purpose.  Restoration assurances are established for the following purposes:
         (a)   In the event the developer has commenced construction of subdivision improvements but has failed to obtain final plat approval within the time period specified by this chapter, the county may draw on the assurance and use the funds to stabilize the construction site;
         (b)   If at any time during the construction of subdivision improvements a clear threat to the public’s health, safety, and/or general welfare is identified by the county on the construction site, the county may, after appropriate notice and demand requirements, draw on the assurance and use the funds to correct the identified threat;
         (c)   In the event the developer fails to complete all subdivision improvements within the term of the performance assurance and the county draws on the performance assurance, the county shall also draw on the restoration assurance and may use the funds to complete any subdivision improvements; and
         (d)   In the event the developer fails to provide a maintenance assurance as required by this chapter, the county may draw on the restoration assurance and may use the funds to establish a maintenance assurance.
      (2)   Amount.  The amount of the restoration assurance shall be 30% of the engineer’s estimate of the probable cost of subdivision improvements, as approved during the review of final engineering plans.
      (3)   Term. The restoration assurance shall be posted as a prerequisite to commencement of construction activities or final plat approval, whichever comes first. The assurance shall be posted for a minimum two-year period unless reduced by the Director after assessing the size of the subdivision, the complexity of the subdivision improvements, and consultation with the Multi-Disciplinary Team. However, should the end of the restoration period fall between December 1 and June 14, the assurance shall expire the first business day after June 14. In accordance with subsection (F)(3) below, the Director, for good cause and with the approval of the provider of the assurance, may extend the term of the assurance.
   (D)   Performance assurances.
      (1)   Purpose.  Performance assurances are established for the purpose of assuring that the developer properly installs all proposed subdivision improvements in accordance with the approved final engineering plans and specifications for the subdivision. Should the developer fail to properly install all improvements within the term of the assurance, the county may draw on the assurance and use the funds to complete the improvements. The county also may draw on the performance assurance if the developer fails to provide a maintenance assurance to the county, if the maintenance assurance is required. The county may use the funds to ensure proper maintenance of the subdivision improvements.
      (2)   Amount.  The amount of the performance assurance shall be 100% of the engineer’s estimate of the probable cost of subdivision improvements, as approved during the review of final engineering plans. The amount of the performance assurance is in addition to the amount of the restoration assurance.
      (3)   Term.  The performance assurance shall be posted as a prerequisite to approval of the final plat of subdivision. The assurance for each phase of the subdivision shall be posted for a minimum two-year period unless reduced by the Director after assessing the size of the subdivision, the complexity of subdivision improvements, and consultation with the Multi-Disciplinary Team. However, should the end of the two-year period fall between December 1 and June 14, the assurance shall expire the first business day after June 14. In accordance with subsection (F)(3) below, the Director, for good cause and with the approval of the provider of the assurance, may extend the term of the assurance.
   (E)   Maintenance assurances.
      (1)   Purpose. 
         (a)   Maintenance assurances are established for the purpose of assuring that the developer maintains the structure, function and integrity of all subdivision improvements in accordance with the approved final engineering plans and specifications for the subdivision during the term of the assurance. In the event the developer has failed to maintain subdivision improvements within the term of the assurance, the county may draw on the assurance and use the funds to correct the deficiencies.
         (b)   Furthermore, if at any time during the term of the maintenance assurance the county identifies that the developer’s failure to maintain subdivision improvements has created a clear threat to the public’s health, safety, and/or general welfare, the county may, after delivering notice and meeting demand requirements in accordance with the terms of the assurance documents and this chapter, draw on the maintenance assurance and use the funds to correct the identified threat.
      (2)   Amount.  The amount of the maintenance assurance shall be determined by the Multi-Disciplinary Team. Generally, the maintenance assurance shall be 15% of the engineer’s estimate of the probable cost of subdivision improvements, as approved during the review of final engineering plans. The Director may waive the requirement for a maintenance assurance when it finds that the assurance is not necessary.
      (3)   Term.  The maintenance assurance shall be posted as a prerequisite to releasing the performance assurance, unless waived or simultaneously held with a portion of the performance improvements upon approval by the Director. The assurance shall be posted for a period of one to three years, and the term may be reduced or extended based on the size, complexity, or phasing of the subdivision, as deemed necessary by the Director. However, should the end of the maintenance period fall between December 1 and June 14, the assurance shall expire the first business day after June 14. In accordance with subsection (F)(3) below, the Director, for good cause and with the approval of the provider of the assurance, may extend the term of the assurance.
   (F)   Reduction, extension, and release of assurances.
      (1)   Procedure.
         (a)   Initiation.  Actions to reduce, extend, or release subdivision assurances may be initiated by the developer or the county as follows:
            1.   The developer may initiate an action to reduce, extend, or release a subdivision assurance by submitting the following information and documentation to the Director:
               a.   A letter requesting the reduction, extension, or release;
               b.   All plans, cost estimates, test reports, certifications, construction schedules, and/or other documentation necessary to justify the request; and
               c.   A subdivision inspection fee shall be paid. A copy of the current subdivision fee schedule is available in the office of the Director.
            2.   The Director shall initiate the process to call on the assurance as established in subsection (G) below should the developer fail to request the extension.
         (b)   Inspection notice.  Upon receipt of a request for the reduction or release of a subdivision assurance, or in the absence of a request, the Director shall schedule an inspection of the subdivision. The Director shall provide written notice to the developer and all affected reviewing agencies at least seven days prior to a scheduled inspection. The notice shall contain the name and location of the subdivision, the time and date of the inspection, the type and status of the assurance, the purpose of the inspection, and the date that inspection comments and recommendations are due.
         (c)   Inspection standards and procedures.
            1.   Scheduling limitations.  Unless otherwise approved by the Multi-Disciplinary Team, subdivision assurance inspections shall not be performed prior to May 1 nor later than November 30 in any year.
            2.   Inspection attendance.  The engineer of record shall be present at all subdivision inspections. The developer’s failure to have the engineer of record attend the inspection may provide just cause for the Director to terminate the inspection and may serve as just cause to deny the request. All agencies notified by the Director shall be present at the scheduled inspection or shall provide written comments to the Director prior to the inspection.
            3.   Inspection protocol.  During the inspection, each reviewing agency shall be responsible for inspecting the improvements within their jurisdiction. At the conclusion of their inspection, each agency shall be prepared to discuss their concerns and note outstanding deficiencies with developer and the engineer of record. In circumstances where additional information is required by an agency in order to formulate a recommendation, that agency shall request this information from the developer. The developer’s failure to provide the requested information in the time period specified by the agency may provide just cause to deny the request.
         (d)   Multi-Disciplinary Team comments and recommendation.
            1.   Inspection comments.  Each agency shall forward a written inspection report and recommendation to the Director within seven days following the inspection. Comments shall identify all deficiencies noted during the inspection or in the review of test reports and/or as-built plans. If no deficiencies are noted, this shall so be stated in the report. For performance assurance reduction requests, each agency also shall identify a dollar amount reduction for each applicable line item of the cost estimate. Upon receipt of all inspection comments, the Director shall forward the comments to the developer.
            2.   Corrective actions.  The developer shall be responsible for correcting all deficiencies and/or addressing all comments identified by the Multi-Disciplinary Team. In circumstances where additional engineering and/or improvements are required in order to correct noted deficiencies, the developer shall comply with the review and approval procedures for field modification as established in § 151.202(B)(2).
            3.   Follow-up inspection.  If the developer has taken actions to correct noted deficiencies prior to the expiration date of the subdivision assurance, a follow-up inspection may be scheduled provided an inspection fee is paid. Unless approved by the reviewing agency responsible for inspection of the deficient areas, a follow-up inspection shall not be conducted less than ten days prior to the expiration date of the assurance. To initiate a follow-up inspection developer shall follow the requirements of this section.
         (e)   Action by the Director.  Upon receipt of Multi-Disciplinary Team comments, the Director shall act to approve, approve with conditions, or disapprove the requested subdivision assurance action. After taking action, the Director shall provide the developer and the surety written notification of the action taken. The developer may appeal the Director’s decision to the Planning, Building and Zoning Committee in accordance with the procedures of § 151.192 of this chapter.
      (2)   Reduction of subdivision assurances.  Restoration, performance, and maintenance assurances shall be reduced only when the Director finds that the following conditions have been satisfied.
         (a)   Limitations on reductions.  Permitted reductions shall be limited by the following.
            1.   Restoration assurance.  The restoration assurance shall not be reduced at any time during the term of the performance assurance unless approved by the Director following consultation with relevant members of the Multi-Disciplinary Team.
            2.   Performance assurance.  The Director, following consultation with relevant members of the Multi-Disciplinary Team, may allow incremental reductions in the performance assurance subject to the following limitations:
               a.   No reduction shall be granted for the costs associated with erosion control, natural resource and open space protection measures until erosion control and natural resource protection measures are properly implemented and the site is stabilized as determined by the Multi-Disciplinary Team.
               b.   With approval of the Director in consultation with the relevant Multi-Disciplinary Team members, the costs associated with the engineer's consulting fees may be reduced in proportion to the value of the overall subdivision improvements.
            3.   Maintenance assurance. The Director, in consultation with the relevant Multi-Disciplinary Team members, may reduce the maintenance assurance in proportion to the current value of the improvements remaining to be completed.
         (b)   Standards for reduction requests.  The performance assurance may be reduced only pursuant to the following standards.
            1.   First reduction.  The first reduction shall be considered only after substantial completion of the following subdivision construction improvements:
               a.   Installation of all erosion control fences and construction fences for the protection of natural resource and open space areas in accordance with approved plans and specifications for the subdivision;
               b.   Mass grading operations including the clearing of vegetation, stripping and stockpiling of topsoil, and the rough cutting of roads and stormwater management facilities;
               c.   Installation of all storm sewer, stormwater management outlet structures, sanitary sewer and water main improvements, if any. The storm sewer system shall be televised. The sanitary sewer system shall be televised and air tested. Water mains shall be pressure tested and chlorinated;
               d.   Partial as-built plans of the stormwater detention basins and storm sewer system, showing the invert elevations of inlets and outlet control structures, stormwater basin volumes, and normal and high water elevations of each basin.
               e.   Road rights-of-way shall be completed per the approved final engineering plans up to, and including, the binder course. All curb and gutter, if applicable, shall be installed and all required testing and documentation shall be submitted in accordance with subsection (F)(2)(c) below.
            2.   Second reduction.
               a.   Topsoil shall be respread and final grades established for all disturbed areas. Sod or seed and mulch shall be applied to all disturbed areas.
               b.   The stormwater manage-ment system shall be complete and functional.
               c.   With the exception of sidewalks, when applicable, and the surface course for roads, all right-of-way improvements shall be complete and properly stabilized.
               d.   All recreational trail systems shall be complete and the pads for the parks and recreational open space shall be prepared for the installation of the park improvements.
               e.   Landscape improvements for streets, open space areas, and transition areas shall be complete for those areas where construction activity has ceased.
         (c)   Application requirements for reduction requests.  In addition to a letter requesting a specific reduction amount the developer shall submit the following information to justify the request.
            1.   Cost estimate.  A cost estimate, based on the subdivision’s original cost estimate approved during the review of the final engineering plans, amended to show the quantity and value of work completed and the quantity and value of work remaining for each line item.
            2.   Test reports.
               a.   Pressure and chlorination test reports, air test reports and television tapes for all sanitary sewer and water main, if applicable, shall be prepared and submitted. All storm sewers shall be televised and test reports shall be submitted. For items within the proposed rights-of-way for which a reduction is being requested, all documentation and material inspection reports, as defined and outlined in the Illinois Department of Transportation Standard Specifications for Road and Bridge Construction, Illinois Department of Transportation Construction Manual and Illinois Department of Transportation Project Procedures Guide shall be submitted for review.
               b.   At the required station, one core shall be taken approximately 18 inches in from the edge of the pavement alternating between the left side and right side of the pavement. The number of cores required shall be determined by the length of the road, in accordance with the following schedule:
 
Length of Road (Feet)
Coring Schedule
0 to 1,000
One every 100 feet
1,001 to 3,000
One every 150 feet (minimum of 10 cores)
3,001 +
One every 200 feet (minimum of 20 cores)
Cul-de-sac
One at 9:00, 12:00 and 3:00 o’clock
 
               c.   A core and density report for the binder course shall be submitted for review and approval prior to the placement of the surface course. The core and density report shall indicate the thickness, density, and percent compaction of each individual core sample. A map shall be provided showing the station of each core and the station offset.
               d.   When a nuclear density gauge is used to verify the required density of the binder course lifts, a minimum of eight cores shall be taken per day and tested for comparison to the densities obtained by the nuclear density gauge.
               e.   Testing of the surface course shall be done using a nuclear density gauge to verify density. Readings shall be taken at approximately the same locations as the binder course cores. In the event nuclear density gauge readings indicate an undesirable percent compaction, cores may be required to verify density. Coring of the surface course to verify density must be approved by the Lake County Engineer.
               f.   Weight tickets for all bituminous courses shall be submitted for review and confirmation.
      (3)   Extension of subdivision assurances.  Restoration, performance, and maintenance assurances shall be extended only when the Director finds that the following conditions have been satisfied. The developer may appeal the Director’s decision to the Planning, Building and Zoning Committee in accordance with the procedures of § 151.192 of this chapter.
         (a)   Standards for extension requests.  Subdivision assurances may be extended only pursuant to the following standards:
            1.   The developer shall demonstrate that the extension will not be detrimental to the development of the area in which the subdivision is located and will not in any manner jeopardize the public’s health, safety, or general welfare. Furthermore, the developer shall document that the extension is justified by one or more of the following conditions:
               a.   There exist unique or unforeseen conditions or circumstances, beyond the developer’s control, that have precluded the completion of subdivision improvements in a timely manner;
               b.   There exists justification for delay in the construction of subdivision improvements to facilitate better coordination of improvements between adjacent developments and/or separate phases of the same subdivision; or
               c.   There exist pending administrative or legislative actions associated with the subdivision that may affect the design, location, and/or function of platted or engineered improvements within the subdivision.
            2.   The Multi-Disciplinary Team has determined that sufficient progress has been made to complete the subdivision improvements and/or to correct any previously identified deficiencies within the time period specified by the developer’s revised construction schedule.
         (b)   Application requirements for extension requests.  In addition to a letter requesting an extension to a specific date, the developer shall submit the following information:
            1.   A revised construction schedule; and
            2.   Written justification for the request in terms of the standards for extensions established in subsection (F)(3)(a)1.
         (c)   Increase in amount of assurance.  As a condition of extending the assurance, the Multi-Disciplinary Team has the right to request an increase in the amount of the assurance, if in the opinion of the Multi-Disciplinary Team a sufficient amount of time has passed or the values of the improvements and/or labor have changed to warrant an increase.
      (4)   Release of subdivision assurances.  Restoration, performance, and maintenance assurances shall be released only when the Director finds that the following conditions have been satisfied. Developers may appeal the Director’s decision to the Planning, Building and Zoning Committee in accordance with the procedures of § 151.192 of this chapter.
         (a)   Standards for release requests. Subdivision assurance may be released only pursuant to the following standards:
            1.   Restoration assurance. The restoration assurance shall be released only upon the Director's determination that the development site is stabilized, there is no threat to the public's health, safety and general welfare if the assurance is released, and there are sufficient funds in the performance assurance to correct all remaining improvements.
            2.   Performance assurance. 
               a.   The performance assurance may be released only upon the developer demonstrating that the subdivision improvements have been completed in accordance with the standards of this chapter and the approved final engineering plans and specifications for the subdivision and a maintenance assurance, if required by the county, has been deposited with the county.
               b.   The Director may authorize a release of the performance assurance and acceptance of a maintenance assurance when a portion of the performance-related improvements are not complete, when the Multi-Disciplinary Team can demonstrate the public’s health, safety, and general welfare will not be compromised. When a release is granted, all outstanding performance improvements shall be completed within one year of the release of the performance assurance. Granting the release may also extend the term of the overall maintenance period for the subdivision.
            3.   Maintenance assurance.  The maintenance assurance may be released only upon the developer demonstrating that:
               a.   The structure, function, and integrity of all subdivision improvements have been properly maintained throughout the term of the assurance; and
               b.   A property owners’ association, if required, has been chartered with the Secretary of State for the purpose of maintaining all subdivision improvements not to be maintained by the public.
         (b)   Application requirements for release requests.
            1.   Restoration and performance assurances.  The developer shall submit the following information for all requests to release the restoration and performance assurances:
               a.   Notification.  The developer shall submit written notification that all subdivision improvements have been completed in accordance with the standards of this chapter and the approved final engineering plans and specifications for the subdivision.
               b.   Certification.  The engineer of record shall provide written certification that all subdivision improvements have been completed in accordance with the standards of this chapter and the approved final engineering plans and specifications for the subdivision. The engineer of record shall further certify that the as-built plans are a true and accurate depiction of the as-built conditions of the subdivision.
               c.   As-built plans.  The engineer of record shall prepare as-built plans for the subdivision. The as-built plans shall be submitted in the same form and content as the original final engineering plans and shall bear the seal and signature of the engineer of record. All field modifications shall appear on the as-built plans. The plans shall verify all improvements, including but not limited to rim and invert elevations, spot elevations at 20-foot intervals along top of berm for detention facilities (including at least two spot elevations for emergency spillways), spot elevations in 100-year overland flow paths, spot elevation at 100-foot intervals along the centerline of streets, spot elevations at 100-foot intervals along the bottom of ditches, and random spot elevations throughout the subdivision.
               d.   Test reports.  All required test reports not previously submitted shall be prepared and submitted.
               e.   Acceptance of improve-ments.  For each subdivision improvement to be maintained by a public agency, a letter shall be on file with the Planning, Building and Development Director indicating that the agency will accept the improvement upon release of the performance assurance.
               f.   Maintenance assurance.  A maintenance assurance, if required, shall be on file in an acceptable form.
            2.   Maintenance assurances.  The developer shall submit the following information for all requests to release the maintenance assurance:
               a.   Notification.  The developer shall submit written notification that the structure, function and integrity of all subdivision improvements have been properly maintained throughout the term of the assurance.
               b.   Property owners’ association.  If a property owners’ association is required, the developer shall submit a copy of the property owners’ association’s articles of incorporation along with the names, addresses, and telephone numbers of the association’s current officers.
   (G)   Default provisions for subdivision assurances.  Upon a recommendation by the Multi-Disciplinary Team and approval by the State’s Attorney’s Office, the Director may, after appropriate notice, initiate default proceedings in accordance with the provisions of this section and the terms of the assurance documents in the event any one of the following deficiencies exist.
      (1)   Default.  A developer shall be considered in default if the developer:
         (a)   Fails to perform or maintain the work due to insufficient number of workers and equipment or with insufficient materials to ensure the completion or maintenance of the work within the specified time;
         (b)   Performs the work unsuitably, as determined by the Multi-Disciplinary Team, the Township Highway Commissioner, or other affected agency;
         (c)   Neglects, refuses materials, performs, or maintains anew any work that shall be rejected as defective and unsuitable;
         (d)   Discontinues the execution of work;
         (e)   Does not (for any other cause whatsoever) carry on or maintain the work in an approved manner; or
         (f)   Fails to provide a maintenance assurance in acceptable form to the county within the timeframe established by the Director. The county may use the funds to ensure proper maintenance of subdivision improvements.
      (2)   Notice of default. When the Director finds that a developer is in default, and following consideration of the issues with the State’s Attorney’s Office, the Director shall be directed to give notice by registered mail to the developer and to the issuer of the subdivision assurance of the county’s intent to call on the subdivision assurance. The notice shall state the reasons for the default and the conditions established by the Multi-Disciplinary Team to remedy the default.
      (3)   Calling on a subdivision assurance.  If, upon receipt of a notice of default, the developer fails to correct the noted deficiencies and/or to honor the terms and conditions specified in the notice, the Director shall present a demand for payment on the assurance. The Director shall deliver the funds from the subdivision assurance to the Lake County Treasurer, and the Lake County Treasurer shall deposit the funds into an account designated for the funds.
      (4)   Appeals.  All appeals of the Director’s decision to draw on an assurance shall be presented to the Planning, Building and Zoning Committee in accordance with § 151.192 of this chapter.
      (5)   Utilization of funds from defaulted assurance.  Upon the calling of a subdivision assurance, the Director shall be authorized to utilize these funds to cause compliance with the terms of the assurance. All costs, including the county’s administrative expenses associated with causing compliance, shall be deducted from the funds on deposit with the Lake County Treasurer.
      (6)   Return of unused funds.  When compliance with the terms of a subdivision assurance has been achieved, the Director shall authorize the Lake County Treasurer to return to the developer or approved beneficiary of the funds all remaining funds from the assurance, if any.
(Ord., § 10.19, passed 10-13-2009; Ord. passed - -)