A. Required: No site work shall be commenced, no development improvements shall be made, or no building permits shall be issued until the owner or developer provides a sufficient financial guarantee to ensure completion of the following "required improvements":
1. Any landscaping improvements, whether upon public or private property, required under the provisions of this title, or under any condition imposed under authority of the provisions of this title; or
2. Any improvement to adjacent road surfaces, curbs, gutters or sidewalks required under the provisions of this title; or
3. Any improvement for storm drainage, sewer, or water infrastructure required under the provisions of this title, or under any condition imposed under authority of the provisions of this title; or
4. Common open space improvements, private streets or private utilities for which a financial guarantee is required under the subdivision title of this code.
B. Escrow Account, Agreement: A sufficient financial guarantee shall be provided by the establishment of a city escrow account, an escrow agreement, or an irrevocable letter of credit for one hundred percent (100%) of the estimated cost of the above required improvements, based on the actual cost estimate provided by the owner or developer. The financial guarantee shall provide that the required improvements be installed upon the completion of the development or the account funds may be called by the city to complete the improvements. Acceptable escrow agents shall include the city treasurer or a federally insured bank or savings institution, or other escrow agent approved by the city attorney. The issuer and agreement shall be subject to the approval of the city attorney.
C. Warranty:
1. All required improvements shall be warranted by the property owner for one year from the date of final inspection approval for all such improvements.
2. The city may, as a warranty, either retain ten percent (10%) of the guarantee amount or require an escrow equal to ten percent (10%) of the required improvement costs. The ten percent (10%) warranty cost may be based on the original estimate determined under subsection B of this section or the actual cost of the required improvements if the owner or developer provides the city with receipts or other evidence of actual cost deemed satisfactory by the city engineer.
D. Effect Of Noncompliance On Subsequent Applications: No building permits shall be issued nor development approvals given for any expansion, amendment or subsequent phase of a development, if the required improvements have not been installed in accordance with prior permits or approvals for the site. This prohibition may be waived, if the reviewing official or body determines the following:
1. The approval of the expansion, amendment, or subsequent phase would result in the removal of the previously required improvements; and
2. Any previously required improvements which are not affected by the proposed expansion, amendment or subsequent phase have been installed; and
3. Adequate security is provided for the previously uninstalled required improvements, as well as for any new required improvements imposed in regards to the expansion, amendment or subsequent phase.
E. Installation Of Improvements; Completion: Required improvements shall be installed and completed before occupancy or use of any building, structure or improvement approved in regards to the site plan, permit or other development. In the case of inclement weather that prevents the installation of the required improvements, the time of the improvements may be extended, in writing, upon approval of the applicable reviewing official or body, or designee. However, in no case shall the time for completion be extended beyond June 1 immediately following the completion date, and no additional phases of any development shall be permitted during such period of extension.
F. Release: The funds provided under the financial guarantee shall not be released until an authorized representative of the city has certified in writing that the required performance is completed and that the city releases its right to draw funds either in full or in part. Upon expiration of the warranty period, the city shall release the established security in whole or in part by providing the issuer a certificate, signed by an authorized representative of the city, that the city releases its right to draw funds or to the extent applicable. As portions of the required improvements are completed for large developments, the owner or developer may petition the city to reduce the amount of the original financial guarantee provided that a request occur not more frequently than every thirty (30) days. If the city determines that the portions of the required improvements that have been completed are in compliance with city ordinances, the approved site plan, and any conditions of approval, and that the amount to be released is sufficient to justify the administrative expense, the city may cause the amount to be partially released; provided, that a minimum of twenty percent (20%) is retained as follows:
1. Ten percent (10%) is retained until expiration of the warranty period; and
2. At least ten percent (10%) is retained to ensure completion of any remaining required improvements.
G. Failure To Complete Required Improvements: In those cases where the financial guarantee has been provided and the required improvements have not been installed as required, the city may, in its discretion:
1. Pursue any available criminal or civil remedies to require the responsible party to complete the required improvements;
2. Declare the development in default and obtain funds under the escrow agreement and complete, at the city's discretion, all or a portion of the required improvements either itself or through a third party;
3. Assign its right to receive funds under the security to any third party, including a subsequent owner of the development, in whole or in part, in exchange for the third party's or subsequent owner's promise to complete the improvements for the development; or
4. Exercise any other rights available under the law.
H. Administrative Procedures: The mayor may establish procedures consistent with this section relating to the administration of the financial guarantee, including, but not limited to, fund management, release, default and collection.
(Ord. 2013-35, 6-25-2013)