(a) Guarantee for Installation of Improvements and Subdivision Improvement Agreements.
(1) Completion of improvements. Before the final subdivision plat is signed by the Chairperson of the Planning Commission, all developers shall be required to complete, in accordance with decisions of the Planning Commission, and to the satisfaction of the City Engineer, all street, sanitary and other public improvements, including lot improvements on the individual lots, as required in these Regulations, as specified in the final subdivision plat and as approved by the Planning Commission, and to dedicate those public improvements to the City, free and clear of all liens and encumbrances on the dedicated property and public improvements. At the time that the plans are approved, the developer shall be required to submit a construction time schedule, an estimate of construction costs and a material specification list itemizing the material type, the supplier and the manufacturer. The applicant shall covenant to maintain each required public improvement, until acceptance by Council of the dedication of that completed public improvement, and shall warrant that all required public improvements will be free from defect for a period of two years following acceptance by Council of the dedication of the last completed public improvement. The warrant shall consist of a maintenance bond, or the equivalent, equal to fifty percent of the construction cost.
(2) Subdivision improvement agreements and guarantees.
A. Agreement. The Planning Commission, at its sole discretion, may waive the requirement that the applicant shall complete and dedicate all public improvements before approval of the final subdivision plat and, as an alternative, allow the applicant to enter into a subdivision improvement agreement by which the subdivider covenants to complete all required public improvements no later than one year following the date on which the Chairperson of the Planning Commission signs the final subdivision plat. The applicant shall covenant to maintain each required public improvement until acceptance by Council of the dedication of that completed public improvement and shall warrant that all required public improvements will be free from defect for a period of two years following acceptance by Council of the dedication of the last completed public improvement. The subdivision improvement agreement shall contain other terms and conditions agreed to by the applicant and the Planning Commission. The warrant shall consist of a maintenance bond, or the equivalent, equal to fifty percent of the construction cost.
B. Covenants to run. The subdivision improvement agreement shall provide that the covenants contained in the agreement shall run with the land and bind all successors, heirs and assignees of the subdivider. The subdivision improvement agreement will be approved by the Planning Commission and Council, and shall be recorded in the Wood County Recorder's Office.
(3) Security. Whenever the Planning Commission permits an applicant to enter into a subdivision improvement agreement, the Commission shall require the applicant to provide a letter of credit, cash escrow or a bond as security for the promises contained in the subdivision improvement agreement. Any security shall be in an amount equal to 100 percent of the estimated cost of completion of the required public improvements, including lot improvements. The issuer of the letter of credit or the escrow agent, as applicable, shall be acceptable to the Planning Commission.
A. Letter of credit. If the applicant posts a letter of credit as security for the promises contained in the subdivision improvement agreement, the credit shall be irrevocable; shall be for a term sufficient to cover the completion, maintenance and warranty periods; and shall require only that the City present an affidavit signed by the City Attorney attesting to the City's right to draw funds under the credit.
B. Cash escrow. If the applicant posts a cash escrow as security for the promises contained in the subdivision improvement agreement, the escrow instructions shall provide that the subdivider will have no right to a return of any of the funds, except as provided herein, and that the escrow agent shall have a legal duty to deliver the funds to the City whenever the City Attorney presents an affidavit to the agent attesting to the Municipality's right to receive such funds whether or not the subdivider protests that right.
C. Waiver. If the City accepts the offer of dedication for the last completed required public improvement, the City shall execute a waiver of its right to receive all but ten percent of the funds represented by the letter of credit or cash escrow, if the subdivider is not in breach of the subdivision improvement agreement. The residual funds shall be security for the subdivider's covenant to maintain the required public improvements and the subdivider's warranty that the improvements are free from defect.
D. Bond. The applicant may post a bond as security for promises contained in the subdivision improvement agreement, subject to the approval of the City Attorney.
(4) Temporary improvements. The applicant shall build and pay for all costs of temporary improvements required by the Planning Commission and shall maintain those temporary improvements for the period specified by the Commission.
(5) Costs of improvements. All required improvements shall be made by the developer, at his or her expense, without reimbursement by the local government.
(6) Failure to complete improvements. For subdivisions for which no subdivision improvement agreement has been executed and no security has been posted, if the improvements are not completed within the period specified by the Planning Commission in the resolution approving the preliminary drawing, approval shall be deemed to have expired. In those cases where a subdivision improvement agreement has been executed and security has been posted and the required public improvements have not been installed according to the terms of the agreement, the City may then declare the agreement to be in default and may require that all the improvements be installed regardless of the extent of the building development at the time the agreement is declared to be in default. The City then may:
A. Suspend final subdivision plat approval until the improvements are completed and record a document to that effect for the purpose of public notice;
B. Obtain funds under the security and complete improvements itself or through a third party;
C. Assign its right to receive funds under the security to any third party, including a subsequent owner of the subdivision for which improvements were not constructed, in whole or in part, in exchange for that subsequent owner's promise to complete improvements in the subdivision; or
D. Exercise any other rights available under the law.
(7) Acceptance of dedication offers. Acceptance of formal offers of dedication of streets, public areas, easements and parks shall be by ordinance of Council. The approval of a subdivision plat by the Planning Commission, whether sketch, preliminary or final, shall not be deemed to constitute or imply the acceptance by the City of any street, easement or park shown on the plat. The Planning Commission may require the plat to be endorsed with appropriate notes to this effect.
(b) Inspection of Improvements.
(1) General procedure and fees. The City Engineer shall provide for the inspection of required improvements during construction and shall ensure their satisfactory completion. The developer shall pay to the City an inspection fee based on the estimated cost of an inspection and engineering review, and where the improvements are completed before final plat approval, the subdivision plat shall not be signed by the Chairperson of the Planning Commission unless the inspection fee has been paid at the time of application. These fees shall be due and payable upon demand of the City and no building permits or certificates of occupancy shall be issued until all fees are paid. If the City Engineer finds, upon inspection, that anyone or more of the required improvements have not been constructed according to the City's construction standards and specifications, the applicant shall be responsible for properly completing the improvements. The developer shall notify the City Engineer at least forty-eight hours prior to the date on which construction is to commence so that an inspection may be appropriately scheduled.
(2) Release or reduction of security.
A. Certificate of satisfactory completion. Council will not accept the dedication of required improvements, nor release nor reduce the amount of any security posted by the subdivider, until the City Engineer has submitted a statement showing that all required improvements have been satisfactorily completed and until:
1. The developer has certified to the City Engineer, through submission of detailed “as-built” drawings of the subdivision, indicating location, dimensions, materials and other information required by the Planning Commission or the City Engineer, that the layout of the lines and grades of all public improvements is in accordance with construction plans for the subdivision; and
2. Evidence, satisfactory to the City Attorney, is furnished showing that the improvements have been completed, are ready for dedication to the City and are free and clear of any liens and encumbrances.
Upon such approval and recommendation by the Planning Commission, the City Engineer and the City Attorney, Council shall thereafter accept the improvements for dedication according to established procedure and State Law.
B. Reduction of escrow funds and security. If the security posted by the subdivider is a cash escrow, the amount of that escrow shall be reduced upon actual acceptance of the dedication of public improvements and then only by the ratio that the cost of the public improvement for which the dedication was accepted bears to the total cost of public improvements for the subdivision. Funds held in the escrow account shall not be released to the subdivider, in whole or in part, except upon express written instruction of the City Attorney. At the end of the warranty period, all escrow funds shall be released to the subdivider. If the security provided by the subdivider is a letter of credit, the City Attorney shall execute waivers of the City's right to draw funds under the credit upon actual acceptance of the dedication of public improvements and then only by the ratio that the cost of the public improvement for which dedication was accepted bears to the total cost of public improvements for the subdivision.
(c) Maintenance of improvements. The developer shall be required to maintain all required public improvements on the individual subdivided lots and to provide for snow removal on streets and sidewalks, if required by the Planning Commission, until acceptance of the improvements by the governing body.
(Ord. 2002-45. Passed 8-22-02; Ord. 2018-53. Passed 2-24-19.)