(A) Final plats of a subdivision shall be approved by the Town Board after the subdivider has installed all required improvements in accordance with the requirements of this chapter or provided a performance guarantee in accordance with division (B) below. If a subdivider requests final plat approval before the completion of all required improvements, the final plat shall not be approved until the subdivider provides a performance guarantee in accordance with this section.
(B) Performance guarantees. Final plats of a subdivision shall be approved by the Town Board upon posting of a performance guarantee to assure successful completion of required improvements.
For purposes of this section, all of the following apply with respect to performance guarantees:
(1) Type. The type of performance guarantee shall be at the election of the developer. The term "performance guarantee" means any of the following forms of guarantee:
(a) Surety bond issued by any company authorized to do business in this state.
(b) Letter of credit issued by any financial institution licensed to do business in this state.
(c) Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
(2) Duration. The duration of the performance guarantee shall initially be one year, unless the developer determines that the scope of work for the required improvements necessitates a longer duration. In the case of a bonded obligation, the completion date shall be set one year from the date the bond is issued, unless the developer determines that the scope of work for the required improvements necessitates a longer duration.
(3) Extension. A developer shall demonstrate reasonable, good-faith progress toward completion of the required improvements that are secured by the performance guarantee or any extension. If the improvements are not completed to the specifications of the town, and the current performance guarantee is likely to expire prior to completion of the required improvements, the performance guarantee shall be extended, or a new performance guarantee issued, for an additional period. An extension under this subdivision shall only be for a duration necessary to complete the required improvements. If a new performance guarantee is issued, the amount shall be determined by the procedure provided in subdivision (B)(5) and shall include the total cost of all incomplete improvements.
(4) Release. The performance guarantee shall be returned or released, as appropriate, in a timely manner upon the acknowledgment by the town that the improvements for which the performance guarantee is being required are complete. The town shall return letters of credit or escrowed funds upon completion of the required improvements to its specifications or upon acceptance of the required improvements, if the required improvements are subject to town acceptance. When required improvements that are secured by a bond are completed to the specifications of the town, or are accepted by the town, if subject to its acceptance, upon request by the developer, the town shall timely provide written acknowledgment that the required improvements have been completed.
(5) Amount. The amount of the performance guarantee shall not exceed 125% of the reasonably estimated cost of completion at the time the performance guarantee is issued. The town may determine the amount of the performance guarantee or use a cost estimate determined by the developer. The reasonably estimated cost of completion shall include 100% of the costs for labor and materials necessary for completion of the required improvements. Where applicable, the costs shall be based on unit pricing. The additional 25% allowed under this division includes inflation and all costs of administration regardless of how such fees or charges are denominated. The amount of any extension of any performance guarantee shall be determined according to the procedures for determining the initial guarantee and shall not exceed 125% of the reasonably estimated cost of completion of the remaining incomplete improvements still outstanding at the time the extension is obtained.
(6) Timing. A performance guarantee required under this section shall be posted at the time the plat is recorded.
(7) Coverage. The performance guarantee shall only be used for completion of the required improvements and not for repairs or maintenance after completion.
(8) Legal responsibilities. No person shall have or may claim any rights under or to any performance guarantee provided pursuant to this division or in the proceeds of any such performance guarantee other than the following:
(a) The town.
(b) The developer at whose request or for whose benefit the performance guarantee is give [text missing].
(c) The person or entity issuing or providing the performance guarantee at the request of or for the benefit of the developer.
(9) Multiple guarantees. The developer shall have the option to post one type of a performance guarantee as provided for in division (A) of this section, in lieu of multiple bonds, letters of credit, or other equivalent security, for all development matters related to the same project requiring performance guarantees.
(10) Performance guarantees associated with erosion control and storm water control measures are not subject to the provision of this section.
(Ord. passed 6-29-2021)