(A) Pursuant to I.C. 36-7-4-709 secondary approval may be granted, by the Commission, prior to completion of the improvements and conditions, specified under the primary approval, provided that the petitioner must provide proof that there is a binding agreement, to complete the project, with the current or proposed future owners, operators and maintainers of the infrastructure. The Binding Agreement shall, at the sole discretion, collectively or individually, of the owners or future owners, operators and maintainers of the infrastructure, include a requirement for surety for the completion of the project.
(B) Proof of binding agreement shall be in a form approved by the attorney for the Plan Commission and shall include the following general forms as they apply:
(1) A resolution of the Board of Public Works and Safety;
(2) A resolution of the Board of Commissioners of Perry County;
(3) A resolution of any applicable Utility Board of Directors;
(4) A certification of agreement over the signature of the Chief Executive Officer, Chief Operating Officer or the General Manager of a Corporation, providing the attorney for the Commission agrees that he/she has that authority;
(C) The resolution or certification of agreement must include the following information (canons of construction):
(1) A comprehensive description of the infrastructure covered by the agreement in the form of complete maps, drawings, specifications and operating requirements;
(2) A statement as to whether or not the agreement is binding and enforceable under the laws of Indiana;
(3) A statement as to whether or not the certifier has the legal authority to enter into the agreement (service area or municipal jurisdiction);
(4) A statement as to whether or not the petitioner has provided security for any contribution, by the petitioner, to the project;
(5) The form of the security provided, and the identity of the entity providing the security;
(6) Whether the agreement is in accordance with the owner’s or potential owner’s standard policy for development (certification of convenience and necessity);
(D) In order to resolve any doubts, or conflicts, concerning certifications related to secondary approval, the Commission may require the verbal testimony and/or the written certifications of attorneys, registered professional engineers or other experts as it may find necessary. Any such additional testimony or evidence shall be at the expense of the petitioner.
(E) If the petitioner, or the petitioner’s agent, is performing the installation of the infrastructure then the current or proposed future owners of the infrastructure may require such security as they deem necessary, in amount, type, or form, to ensure the adequate and proper completion of the infrastructure. The security may be in any of the following forms as approved by the governing entity of the current or proposed future owner of the infrastructure:
(1) Refundable aid to construction deposit, with a contractual agreement;
(2) Non-refundable aid to construction deposit;
(3) Escrow, with a contractual agreement;
(4) Cash deposit with contractual agreement;
(5) Deposit of a negotiable instrument with a contractual agreement of disposition;
(6) Performance or special bond, without any restrictions or limitations, from a financial institution approved by the Commission.
(Ord. 970, passed 3-5-2007)