All improvements, installations, and lot improvements required by this chapter shall either be: complete and maintenance thereof assured; or assurance for their completion and maintenance shall be provided as set forth below, for all subdivisions which involve the dedication and extension of any easement or public improvement, or the acceptance of any easement or public improvement by the town. Minor residential subdivisions which do not involve the dedication and extension of any easement or public improvement shall be exempt from the provisions of this section.
(A) Completion of improvements, installations, and lot improvements. Before the secondary plat is signed by the President and Secretary of the Area Plan Commission, the subdivider shall complete, in accordance with the Area Plan Commission’s decision and to the satisfaction of the town, all public improvements (including, but not limited to: street, street signs, municipal water, municipal electric, sanitary sewer, storm drainage, sidewalk, and water) and lot improvements (including, but not limited to: erosion control, final grading and soil preservation, lot drainage, removal of debris and waste, fencing, and lawn seeding or sodding), as required by this chapter and specified in the secondary plat approved pursuant to this chapter, and dedicate the public improvements to the town, free and clear of all liens and encumbrances on the dedicated property and public improvements.
(B) Surety for improvements, installations and lot improvements.
(1) Before the secondary plat is signed by the President and Secretary of the Area Plan Commission, the subdivider shall post a performance bond or irrevocable letter of credit in a form acceptable to the Area Plan Commission and the town, in which the subdivider covenants to complete all required sanitary sewer, water system, street base, binder and curbs and storm drainage improvements no later than 2 years following the date on which the certificate of approval of secondary plat is duly signed, and to complete all other required improvements, installations, and lot improvements, including but not limited to sidewalks, erosion control, fencing, debris and waste removal, soil preservation, lot drainage, final grading and lawn preparation, street signs, monumentation, and street topcoat improvements. The subdivider shall covenant to maintain each required improvement and also shall warrant that all required improvements will be free from defects for a period of 3 years following the acceptance by the town of the dedication of the last completed improvement. The performance bond shall provide that the covenants contained in the performance bond shall run with the land and bind all heirs, executors, administrators, successors, and assigns of the subdivider. The performance bond shall contain such other terms and conditions as agreed to by the subdivider and the Area Plan Commission and the town.
(2) The subdivider shall provide a performance bond or irrevocable letter of credit before the certificate of approval of the Area Plan Commission is affixed and attached to the secondary plat and duly signed.
(a) A performance bond shall:
1. Run to the Town Council;
2. Be in an amount equal to 125% of the cost, as established pursuant to an estimate submitted to and approved by the Town Engineer, for the completion of all improvements and installations required by this chapter;
3. Provide surety satisfactory to the town;
4. Be in effect until compliance with the terms and provisions of the performance bond and the execution of a written release of performance bond by the Town Engineer;
5. Specify that all improvements and installations shall be completed in accordance with the requirements and specifications of this chapter:
a. For single family or 2 family subdivisions, prior to the time that single family or 2 family dwellings are upon 90% of the lots shown upon the secondary plat, or within 3 years after the date on which the certificate of approval of the Area Plan Commission is duly signed and affixed to the secondary plat, whichever occurs first; or
b. For multifamily, commercial, or industrial subdivisions, within 3 years after the date on which the certificate of approval of the Area Plan Commission is duly signed and affixed to the secondary plat.
6. Provide that upon completion of the improvements and installations, but prior to acceptance thereof for public maintenance by the town, the subdivider shall provide a maintenance bond as required by this chapter;
7. The performance bond shall be filed on bond or letter of credit forms approved for use by the Area Plan Commission; and
8. The beneficiary of all performance bonds shall be the Town Council.
(b) An irrevocable letter of credit shall:
1. Run to the Town Council;
2. Be in an amount equal to 125% of the cost, as established pursuant to an estimate submitted to and approved by the Town Engineer, for the completion of all improvements and installations required by this chapter;
3. Provide surety satisfactory to the town;
4. Be in effect until:
a. The execution of a written release of irrevocable letter of credit by the Town Engineer;
b. Compliance with the terms and provisions of this chapter;
c. All improvements and installations have been completed in accordance with the requirements and specifications of this chapter:
i. For single family or 2 family subdivisions, prior to the time that single family or 2 family dwellings are upon 90% of the lots shown upon the secondary plat or within 3 years after the date on which the certificate of approval of the Area Plan Commission is duly signed and affixed to the secondary plat, whichever occurs first; or
ii. For multifamily, commercial or industrial subdivisions, within 3 years after the date on which the certificate of approval of the Area Plan Commission is duly signed and affixed to the secondary plat.
d. The provision by the subdivider of a maintenance bond as required by this chapter prior to acceptance of improvements and installations for public maintenance by the town.
5. The irrevocable letter of credit shall be filed on letter of credit forms approved for use by the Area Plan Commission; and
6. The beneficiary of all irrevocable letters of credit shall be the Town Council.
(C) Proof of compliance. Upon completion of all improvements and installations as required by this chapter, the subdivider shall furnish the Town Engineer with appropriate documentation indicating that the improvements, installations, and lot improvements have been constructed, installed, and completed in compliance with the provisions of this chapter, the requirements of the Area Plan Commission and the provisions of other applicable ordinances of the town.
(D) Completion letter. Upon acceptance of a required improvement or installation, the town shall provide a completion letter to the subdivider stating that the required improvements and installations for which the town is responsible have been accepted for maintenance by the town, subject to the terms of a maintenance bond, as required below, and shall file a copy of the completion letter with the Executive Director of the Area Plan Commission.
(E) Maintenance bond. Upon completion of all required improvements and installations, but prior to the acceptance of such improvements and installations for public maintenance, the subdivider shall provide a 3-year maintenance bond, with the subdivider or some other person satisfactory to the Town as principal, which shall:
(1) Run to the Town Council of New Carlisle;
(2) Be in an amount equal to 10% of the amount of the performance bond for the improvements and installations subject to the maintenance bond;
(3) Provide surety satisfactory to the town;
(4) Warrant the workmanship and materials used in the construction, installation and completion of said improvements and installations to be of good quality and have been constructed and completed in a workmanlike manner in accordance with the standards, specifications and requirements of this chapter and the satisfactory construction plans and specifications therefor submitted to the Town Engineer;
(5) Provide that for a period of 3 years after formal acceptance, the subdivider shall, at the subdivider’s expense, make all repairs to the improvements and installations, or the foundations thereof, which may become necessary by reason of improper workmanship or materials, but not including any damage to the improvements and installations resulting from forces or circumstances beyond the control of the subdivider or occasioned by the inadequacy of the standards, specifications or requirements of this ordinance;
(6) Maintenance bonds shall be filed on forms substantially as set forth in Appendix C of this chapter; and
(7) The beneficiary of all maintenance bonds shall be the Town Council.
(F) Use of bond funds. Any funds received from the performance bonds for subdivision improvements and installations or from the maintenance bonds for the maintenance of improvements and installations required by this chapter shall be used only for the purpose of making improvements, installations, or repair, for which the bonds were provided in accordance with the standards, specifications, and requirements of this chapter.
(G) Deferral or waiver of required improvements.
(1) The Area Plan Commission shall have the authority to defer or waive, in its discretion, at the time of primary plat approval and subject to any appropriate conditions, the provision of any or all of the public improvements required by this chapter which, in the judgment of the Area Plan Commission, are: not required to protect the public health, safety, and general welfare; inappropriate because of incompatible grades, future planning, the inadequacy or non-existence of connecting facilities; or inappropriate for other reasons presented to and agreed to by the Area Plan Commission. Any determination to defer or waive the provisions of any public improvements or installations required by this chapter shall be accomplished by way of a motion, approved by a majority vote of the Area Plan Commission at a public hearing, which motion shall include the reasons for the deferral or waiver.
(2) When the Area Plan Commission, in its discretion, determines that a deferral of an improvement or installation is appropriate, the subdivider shall post a separate performance bond or irrevocable letter of credit, in an amount determined by the town, guaranteeing completion of the deferred improvements or installations upon demand by the town.
(H) Approval of construction plans. No construction of any improvement within a subdivision required by this chapter, the Area Plan Commission, Plat Committee, or any other applicable ordinance of the town, shall commence prior to the approval of construction plans by the Town Engineer, Public Works Director, and the Town Council. Failure to obtain approval of construction plans prior to commencement of construction is a violation of this chapter which is enforceable under the provisions of division (I) of this section.
(I) Compliance and enforcement. Compliance with the terms and provisions of this chapter shall be a prerequisite for the use and development of real property within the town. Failure of a developer or subdivider to comply with the terms and provisions of this chapter shall be deemed to be a civil zoning violation enforceable by the Area Plan Commission as provided in I.C. 36-7-4 et seq. and §§ 152.405 through 152.413. For the purposes of enforcing this chapter, the term “staff” as used in §§ 152.405 through 152.413 shall also include any applicable Town Engineer, the County Surveyor, or an authorized agent of such engineer or surveyor, which shall specifically have the right of entry for inspection purposes and the power to issue a cease and desist order, all in accordance with §§ 152.405 through 152.413.
(Ord. 1223, § 2.7, passed 5-11-2010)