(A) Improvements installation. Upon the approval of the preliminary plat by the Planning Board, the subdivider may proceed with the preparation of the final plat, and the installation or arrangement for required improvements in accordance with the approved preliminary plat and the requirements of this chapter, except as hereinafter provided concerning performance guarantees, before final plats are approved:
(1) All required improvements shall be completed by the applicant or his or her agents, and inspected and approved by appropriate public officials or agencies;
(2) All required offers to dedicate, or to reserve for future dedication, shall be made, clear of all liens and encumbrances on the property and public improvements thus dedicated; and
(3) All required maintenance guarantees shall have been made.
(B) Performance guarantees. In lieu of completion of all or part of required improvements prior to approval of final plats, the applicant may post a performance guarantee in an amount sufficient to secure to the town the satisfactory construction, installation and dedication of the uncompleted portion of the required improvements.
(C) Type of guarantee.
(1) The performance guarantee may be in the form of a certified check, a no-contest irrevocable bank letter of credit or a performance and payment bond underwritten by a state-licensed corporate surety company.
(2) Except in the case of certified check, such sureties shall not be accepted unless the Town Attorney has made a review thereof and rendered a written opinion that the interests of the town are fully protected.
(3) The certified check should be deposited with the Town Clerk, as escrow agent, who shall deposit it in an escrow account of the town.
(4) The no-contest irrevocable bank letter of credit shall be from a banking corporation licensed to do business in the state. The terms of the letter shall include the absolute right of the Town Clerk to
withdraw funds from the bank forthwith upon the Town Clerk certifying to the bank that the terms and conditions of the performance guarantee have been breached.
(D) Plans and construction programs.
(1) Plans, specifications, quantities, unit costs and estimated total costs shall be provided by the applicant to the Staff Planner, together with a schedule indicating time of initiation and completion of the work, as a whole or in stages. Number of copies shall be as required for records and processing in the particular case.
(2) The Staff Planner shall refer such plans and programs to governmental bodies exercising control for their recommendations as to whether the proposals meet all requirements of such agencies, as to sufficiently of cost estimates, and as to reasonableness of construction programs.
(E) Amount and terms of guarantee; time limits.
(1) Following receipt of such commendations, the Staff Planner shall prepare recommendations as to amount and terms of the performance guarantee, including time of initiation and completion of the work, as a whole or in stages, provisions concerning extensions for cause and provisions for release of portions of the guarantee upon completion of portions or stages of the work.
(2) The time between initiation and the completion of the required improvements, including any provision for extension shall not exceed two years.
(3) The Planning Board, based upon the recommendations and with such changes as it sees fit, shall set the amount and terms of the performance guarantee, subject to the legal review and opinion required by division (C) above.
(4) The amount of the guarantee shall be sufficient to provide adequate funds to the town to insure, in the case of default, the installation of all required improvements uncompleted at the time of default. In setting the amount of the performance guarantee, the Planning Board shall consider the difficult of restarting a closed project, the size and complexity of the required improvements, the record of the applicant and the site conditions.
(F) Inspections; reports; cost responsibility.
(1) Governmental bodies exercising control shall make inspections to determine whether work has started as scheduled; shall make inspections as are necessary during the course of work, and shall make final inspections to determine whether stages of construction required under the performance guarantee have been completed in accordance with the terms of the guarantee.
(2) Within five days of such inspections, copies of reports of the results thereof shall be provided to the Staff Planner. The full cost of making such inspections and preparing such reports shall be paid by the applicant.
(G) Action on inspection reports.
(1) Reports indicating satisfaction of requirements. Where such reports indicate satisfactory completion of work within the time limits set and in accord with other terms of the performance guarantee, for agreed-upon stages or for the entire work, the Staff Planner shall so indicate to the applicant, and surety company involved and the Town Clerk. The Town Clerk, upon such notification and any further assurance that may be required from the Town Attorney or governmental bodies exercising operating control, shall then release all or portions of the performance guarantee in accordance with the terms thereof
(2) Reports indicating failure to satisfy requirements.
(a) Where such reports indicate failure to initiate work on schedule or to complete work on schedule in full compliance with the terms of the performance guarantee, the Staff Planner shall so indicate to the applicant, governmental bodies exercising control, any surety company involved and the Town Clerk.
(b) Such notice shall indicate that, unless action required under the terms of the performance guarantee is completed within 30 days of the date of such notification, the performance guarantee or portions thereof set forth in its terms shall be called.
(c) Unless such action is completed, as evidenced by inspections and reports from governmental bodies exercising control transmitted through the Staff Planner, the Town Clerk shall call the performance guarantee or affected portions thereof.
(3) Reports indicating unsatisfactory progress. Where such reports indicate that work initiated appears likely not to be completed on schedule, and where the performance guarantee provides for extension of time for cause, the Staff Planner shall notify the applicant and any surety company involved concerning potential need for an application for such extension. Where such notice has been given, no application for extension shall be considered after expiration of the original schedule date.
(H) Actions following failure to complete work under performance guarantee. Where work required under the terms of any performance guarantee is not completed by the applicant as specified therein, the Town Clerk, following the call of the guarantee, shall take such action as is appropriate in the circumstances of the case to procure the completion of the required improvements at the earliest reasonable time, according to the plans and specifications and staging of construction approved in connection therewith.
(I) Maintenance and warranty funds.
(1) The applicant shall maintain all land and required improvements in satisfactory condition until acceptance of dedication.
(2) Prior to acceptance of dedication, the applicant shall make or cause to be made payment to a warranty fund of an amount not to exceed 3% of contract costs, determined by the Town Clerk,
upon reports from governmental bodies exercising control, as sufficient to remedy defects in workmanship or materials for a period of one year from date of acceptance of dedication.
(3) At the end of such year, any balance of such funds not expended in remedying defects in workmanship or materials shall be returned to the applicant.
(J) Acceptance of guarantee of other governmental agency, public utility or town water corporation. Where all or part of required improvements are to be completed by another government agency or public utility, the Town Clerk may accept the written guarantee of such agency to complete such improvements within a time to be mutually agreed upon, with time for completion limited as provided in division (E) above.
(K) Building permits and certificates of occupancy prior to completion of improvements.
(1) Building permits may be issued for construction of buildings in subdivisions prior to completion of required improvements.
(2) Certificates of occupancy may be issued and buildings occupied only when all of the following improvements are available and as further provided below:
(a) Streets shall be passable for private, service and emergency vehicles under normal weather conditions provided that distance along such streets shall not exceed 1,200 feet by normal routes;
(b) Driveways shall be passable under normal weather conditions;
(c) Drainage shall be installed and operative, thus assuring that under normal weather conditions there will be no flooding of the building site or accessways to the site;
(d) Erosion protection, acceptable under normal weather conditions, shall be installed; and
(e) Domestic water supply and sanitary sewerage shall be installed and operative.
(3) No such permits or certificates shall be issued unless all remaining required improvements are covered by a performance guarantee and the applicant accepts tort liability pending completion of all required improvements.
(1979 Code, § S-3-5) (Ord. passed 6- -1987)