1119.15 PERFORMANCE GUARANTEE IN LIEU OF INSTALLATION OF IMPROVEMENTS.
Concurrently with the application for approval of the final plat, the developer may execute and file with the Municipality a performance bond, secured as hereinafter required, in lieu of actual installation or completion of required improvements.
(a) Form of Bond. The performance bond shall be conditioned upon proper installation of all improvements required by the Codified Ordinances of the Municipality, according to the approved plans and specifications, within two years after approval by the Planning and Zoning Commission or Council of the final plat of the subdivision, and shall provide that the Municipality shall have the right, in the event of default, to install the required improvements after first giving ten days written notice to the developer, to proceed against the developer and against any surety on the bond for the cost thereof and to apply to the cost of such improvements any funds deposited with the Municipality or in escrow as security for performance of the conditions of the bond. The bond shall further provide that the developer shall hold harmless the Municipality, its officers and employees from all claims, demands and causes of action of every nature and description arising out of the installation of improvements within the developer's subdivision, conditions existing during the construction or installation of such improvements and all damages to neighboring property owners resulting from approval of the developer's subdivision by the Municipality and the installation of improvements therein, including, without limitation, damages resulting from increase in surface water flowing from the subdivision and all claims arising out of changes to natural ditches or drainage courses. The terms "claims, demands and causes of action", shall include all expenses of defending against such claims, demands and causes of action, including fees payable to attorneys and expert witnesses, wages paid to Municipal employees while occupied in defense of such claims, demands and causes of actions and wages or salaries reimbursed by the Municipality to Municipal officers to compensate them for wages and salaries lost while engaged in such defense. The form of each performance bond shall be approved in writing by the Director of Law and shall be in a form substantially as shown in Appendix B of original Ordinance 79-86.
(b) Security for Bond. Performance bonds shall be secured as follows:
(1) By the written guarantee of one or more surety companies authorized to conduct business within the State of Ohio. The form of guarantee shall be approved in writing by the Director of Law. The Director may reject a performance bond in the event that he reasonably determines that the assets of the surety company or companies, subject to attachment within the State of Ohio, are insufficient to secure performance of the developer's obligations, taking into account other outstanding liabilities and contingent liabilities of the surety company or companies; or
(2) By deposit of cash in the full face amount of the bond, with the Municipality or with an escrow agent or trustee. In the event funds are deposited with an escrow agent or trustee, all documents or instruments governing the terms of such deposit shall be approved in writing by the Director.
(c) Amount of Bond. The amount of performance bonds shall be determined by the Municipal Engineer and shall be in an amount equal to the estimated total cost of materials and labor required to install or construct all improvements required by the Codified Ordinances of the Municipality, including the estimated cost of repairing or reconstructing public improvements outside the subdivision which may be damaged by construction activity. The amount of a performance bond shall also include estimated damages, if any, to neighboring properties which are the subject of the hold harmless provision contained in subsection (a) hereof, and the estimated costs of defending against claims for any such damages.
(d) Reduction of Bond and Return of Security. When the Engineer shall have certified in writing that all subdivision improvements have been satisfactorily completed in accordance with approved plans and specifications, the performance bond submitted by the developer shall be canceled and all funds deposited as security therefor shall be returned. Upon written certification by the Engineer that any portion of the improvements has, upon inspection, been found satisfactorily completed, a reduction in the amount of the bond or partial withdrawal of funds deposited as security therefor, equal to the cost of such completed improvements, as estimated by the Engineer, may be authorized by the Engineer if, in the opinion of the Engineer the remaining bond or security shall be fully sufficient, under all the circumstances, to guarantee performance of the conditions of the bond. In the event that the developer shall have been required to post a maintenance bond for the same subdivision, pursuant to the requirements of Section 1119.16, the Municipality may retain so much of the funds posted as security for the developer's performance bond as may, in the judgment of the Engineer, be necessary to provide adequate security for the performance of the conditions of the developer's maintenance bond.
(e) Progressive Installation. The developer may apply for final approval and recording of only a portion of the entire subdivision. Under such a progressive unit development procedure, the installation of required improvements and sale or lease of lots may proceed only on that portion of the subdivision which has been approved and recorded.
(Ord. 79-86. Passed 12-3-79.)