A. General Security Requirements:
1. As security to the county or the village for the performance by the developer of the developer's obligations to complete the construction of any stormwater facilities required by the stormwater management certification, to ensure that such stormwater facilities function as designed after construction, to pay all costs, fees, and charges due from the developer pursuant to this title, and to otherwise faithfully perform the developer's undertakings pursuant to this title, the developer shall, prior to issuance of a stormwater management certification and in accordance with subsection 9-4-11D of this title, post performance security and grant easements as hereafter described.
2. The developer shall bear the full cost of securing and maintaining the securities required by this chapter in accordance with subsection 9-4-11D of this title.
3. Performance security required by this chapter may be posted in the form of one or more surety instruments as the director or administrator deems appropriate for the proposed development.
4. Public bodies shall not be required to post performance security under this chapter for development activities which involve construction, improvement, relocation or demolition work paid for in whole or in part with public funds.
5. The developer shall grant the village a temporary easement which authorizes, but does not obligate, the village to access the development site to perform or complete any act or work the developer is required to do by the stormwater certification which may include: a) the construction of any required stormwater facilities; b) restoration and/or mitigation of natural areas, wetlands and buffers; c) installation and maintenance of soil erosion control; d) planting or removal of vegetation; and e) any other maintenance or monitoring. The term for such easements shall be of sufficient duration as necessary to allow the village to perform and satisfactorily complete any activity or work for which the developer/certificate holder has posted security under this chapter.
B. Development Security:
1. A development security shall be posted and shall include:
a. A schedule, agreed upon by the developer and the director or the administrator, for the completion of the construction of any stormwater facilities required by the certification; and
b. An irrevocable letter of credit, or such other adequate security as the director or the administrator may approve, in an amount equal to not less than one hundred ten percent (110%) of the estimated probable cost to complete the construction of any stormwater facilities required by the stormwater management certification, which estimated probable cost shall be approved by the director or the administrator; and
c. A statement signed by the applicant granting the director or the administrator the right to draw on the security and the right to enter the development site to complete required work in the event that work is not completed according to the work schedule; and
d. A statement signed by the applicant that the applicant shall indemnify the village for any additional costs incurred attributable to concurrent activities of or conflicts between the applicant's contractor and the village's remedial contractor at the site.
2. The security required by this subsection B shall be maintained and renewed by the applicant, and shall be held in escrow by the administrator until the conditions set forth in this subsection B and section 9-6-2 of this chapter or other applicable provision are satisfied.
3. After approval of record drawings and final inspection of any constructed stormwater facilities by the director or the administrator, not more than ninety percent (90%) of the security provided for in this subsection B or other applicable provision may be released. A minimum of ten percent (10%) of the security shall be retained after completion of construction of such stormwater facilities, for a period of time not less than one year, to ensure the satisfactory performance of such stormwater facilities. The remaining development security shall be released after the director or the administrator verifies, by an inspection performed not sooner than one year following the final construction inspection, that such stormwater facilities function as provided for in the certification.
C. Soil Erosion And Sediment Control Security:
1. If a soil erosion and sediment control security is required pursuant to subsection 9-4-11D2 of this title, such a security shall include:
a. An irrevocable letter of credit, or such other adequate security as the director or the administrator shall approve, in an amount equal to not less than one hundred ten percent (110%) of the estimated probable cost to install and maintain the erosion and sediment control measures, which estimated probable cost shall be approved by the director or the administrator; and
b. A statement signed by the applicant granting the director or the administrator, as applicable, the right to draw on the security and the right to enter the development site to complete erosion and sediment control measures in the event that such measures are not installed and maintained according to the established schedule.
2. The security required by this subsection C shall be maintained and renewed by the applicant, and shall be held in escrow by the director or the administrator, as applicable, until the conditions set forth in subsection C3 of this section and section 9-6-2 of this chapter are satisfied.
3. After establishment of vegetation, removal of all sediment from stormwater facilities unless designed otherwise, and final inspection and approval by the director or the administrator, as applicable, one hundred percent (100%) of the erosion and sediment control security shall be released.
D. Natural Area Restoration, Wetland And Buffer Mitigation Area Security:
1. Natural area restoration or wetland and buffer mitigation area security, in accordance with subsection 9-4-11D3 of this title shall be posted and shall include:
a. A schedule, agreed upon by the developer and the director or the administrator, for the completion of a natural area restoration development or completion of wetland or buffer mitigation development; and
b. An irrevocable letter of credit, or other such adequate security as the director or the administrator may approve, in an amount equal to, not less than, one hundred ten percent (110%) of the estimated probable cost to plant, maintain and monitor all vegetated areas and/or complete the restoration or mitigation development for the agreed upon maintenance and monitoring period as required by the certification. The estimated probable cost shall be approved by the director or the administrator; and
c. A statement signed by the applicant granting the director or the administrator the right to draw on the security and the right to enter the development site to complete the work in the event that work is not completed according to the work schedule; and
d. A statement signed by the applicant that the applicant shall indemnify the village for any additional costs incurred attributable to concurrent activities of, or conflicts between, the applicant's contractor and the village's remedial contractor at the site.
2. The security required by this subsection D shall be maintained and renewed by the applicant, and shall be held in escrow by the director or the administrator until the conditions set forth in subsection D4 of this section and section 9-6-2 of this chapter, or other applicable provision are satisfied.
3. The natural area restoration or wetland and buffer mitigation areas security may be reduced at the discretion of the director or administrator as conditions are met, but must not be less than one hundred ten percent (110%) of the estimated probable cost to continue to meet all conditions or other applicable provisions.
4. After approval by the director or the administrator, not more than ninety percent (90%) of the security provided for in this subsection D, or other applicable provision may be released. A minimum of ten percent (10%) of the security shall be retained for the length of the required monitoring period, which shall not be less than one year from the completion of the initial restoration or mitigation activities, to ensure the satisfactory establishment of any vegetated areas required by the certification.
E. Letters Of Credit:
1. Letters of credit posted pursuant to subsections B, C and D of this section shall be in a form satisfactory to the director or the administrator, as applicable.
2. Each letter of credit shall be from a lending institution: a) acceptable to the director or the administrator, as applicable; b) having capital resources of at least ten million dollars ($10,000,000.00), or such other amount acceptable to the director or the administrator; c) with an office in the Chicago metropolitan area; and d) insured by the federal deposit insurance corporation.
3. Each letter of credit shall, at a minimum, provide that:
a. It shall not be canceled without the prior written consent of the director or the administrator; and
b. It shall not require the consent of the developer prior to any draw on it by the director or the administrator; and
c. If at any time it will expire within forty five (45) or any lesser number of days, and if it has not been renewed, and if any applicable obligation of the developer for which its security remains uncompleted or is unsatisfactory, then the director or the administrator may, without notice and without being required to take any further action of any nature whatsoever, call and draw down the letter of credit and thereafter either hold all proceeds as security for the satisfactory completion of all such obligations or employ the proceeds to complete all such obligations and reimburse the county or the village for any and all costs and expenses, including legal fees and administrative costs, incurred by the county or the village, as the administrator shall determine.
4. If at any time the director or the administrator determines that the funds remaining in the letter of credit are not, or may not be, sufficient to pay in full the remaining unpaid cost of all stormwater facility construction or erosion and sediment control measures, then, within ten (10) days following a demand by the director or the administrator, the developer shall increase the amount of the letter of credit to an amount determined by the director or the administrator to be sufficient to pay such unpaid costs. Failure to so increase the amount of the security shall be grounds for the director or the administrator to draw down the entire remaining balance of the letter of credit.
5. If at any time the director or the administrator determines that the bank issuing the letter of credit is without capital resources of at least ten million dollars ($10,000,000.00), is unable to meet any federal or state requirement for reserves, is insolvent, is in danger of becoming any of the foregoing, or is otherwise in danger of being unable to honor such letter of credit at any time during its term, or if the director or the administrator otherwise reasonably deems the bank to be insecure, then the director or the administrator shall have the right to demand that the developer provide a replacement letter of credit from a bank satisfactory to the director or the administrator. Such replacement letter of credit shall be deposited with the director or the administrator not later than ten (10) days following such demand. Upon such deposit, the director or the administrator shall surrender the original letter of credit to the developer.
6. If the developer fails or refuses to meet fully any of its obligations under this title, then the director or the administrator may, in his or her discretion, draw on and retain all or any of the funds remaining in the letter of credit. The director or the administrator thereafter shall have the right to take any action he or she deems reasonable and appropriate to mitigate the effects of such failure or refusal, and to reimburse the county or the village from the proceeds of the letter of credit for all of its costs and expenses, including legal fees and administrative expenses, resulting from or incurred as a result of the developer's failure or refusal to fully meet its obligations under this title. If the funds remaining in the letter of credit are insufficient to repay fully the county or the village for all such costs and expenses, and to maintain a cash reserve equal to the required letter of credit during the entire time such letter of credit should have been maintained by the developer, then the developer shall, upon demand of the director or the administrator therefor, immediately deposit with the director or the administrator such additional funds as the director or the administrator determines are necessary to fully repay such costs and expenses and to establish such cash reserve. (Ord. G-976, 7-24-2012; Ord. G-1003, 6-11-2013)