(1) A subdivider shall execute and file a construction agreement and may file a financial guarantee (see § 155.04(E)) with the city in lieu of actual installation or completion of the required public improvements when requesting approval of a final plat.
(3) Construction Agreement
(a) To assure the construction and installation of public improvements and the sedimentation and erosion control measures required by these regulations, state law, and/or the Storm Water Pollution Prevention Plan (SWPPP), the subdivider shall execute a construction agreement with the city in a form and substance approved by the city's legal counsel.
(b) The construction agreement shall provide that:
(i) All such public improvements, as specified in the agreement, shall be constructed and installed at the subdivider's expense in compliance with the standards and specifications for each of the various types of public improvements, including, when applicable, measures needed to control erosion and sedimentation;
(ii) All such public improvements shall be available to and for the benefit of the lands within such subdivision and surrounding land which is in the same service or drainage area;
(iii) All such public improvements (as specified in the agreement) will be completed and installed within 24 months of the date of final approval of the final plat. With the consent of the Zoning Administrator, only 1 extension not to exceed 12 consecutive calendar months from the start of the extension, is permitted, to complete and install the public improvements;
(iv) If the final plat is approved before the construction of public improvements that a financial guarantee is provided in accordance with § 155.04(E) and furthermore, if the public improvements are not completed within the specified time, the city, on proper notice, may complete the public improvements and recover full costs and expenses thereof from the subdivider, and may appropriate such portion of the financial guarantee posted for the faithful performance of said works; and
(v) Any further provisions that the city's legal counsel may deem necessary in the public interest may be added to the construction agreement.
(c) No construction of any public improvements, or clearing, grubbing, and grading shall be commenced prior to the approval of the construction agreement by the City Council.
(4) Maintenance Deposit
(a) Before installation of public improvements begins (with or without a financial guarantee), the owner, subdivider, contractor, or agent shall deposit an amount of $500 to $1,000, as determined by the City Engineer to the city. Such deposit shall be made either in cash or by means of a certified check.
(b) The amount deposited shall be paid on order of the city to facilitate the removal of dirt, silt, or any other accumulation from any street or conduit for drainage, sewage, or water, or to repair municipal pavement or property or private property if the owner, subdivider, or agent neglects or refuses to remove accumulations or to make repairs when ordered by the City Engineer.
(c) When more than half of the amount has been used by the city for said purpose, the owner, subdivider, contractor, or agent shall deposit sufficient additional funds to bring the balance again to the amount established in accordance herewith. Failure to maintain the balance, on request of the City Engineer, shall constitute authority for the City Engineer to halt work on the public improvements being installed. When the improvement has been completed, any balance in the fund not then needed for the purpose aforesaid shall be returned to the subdivider, owner, or agent who deposited it.
(5) Financial Guarantees for Improvements
(a) A subdivider may execute and file a written guarantee with the city in lieu of actual installation or completion of the required public improvements when requesting approval of a final plat.
(b) The financial guarantee shall be an obligation for the faithful performance of any and all work and the construction and installation of all public improvements required to be done by the subdivider, together with all engineering and inspection costs and fees incurred by the city.
(c) The guarantee shall contain the further condition that should 1 of the following conditions exists, the city may, at its option, cause all required work to be done and public improvements constructed by using the financial guarantee.
(i) The installation of all required public improvements as called for in these regulations has not taken place within the time period agreed on in the construction agreement with the city, and the subdivider has failed to establish reasonable cause for such delay to the satisfaction of the City Council and thereby to receive a time extension; and/or
(ii) The subdivider has not constructed the required public improvements in accordance with the minimum standards specified by these regulations, and the subdivider is unwilling to modify and upgrade said public improvements within a six-month time period so as to be in compliance with the provisions of these regulations.
(d) The parties executing the guarantee shall be firmly bound for the payment of all necessary costs therefor.
(e) The guarantee may take the form of a bond, cash deposit, or an irrevocable letter of credit as further outlined in this subsection.
(f) The amount of the guarantee shall be based on an engineer's cost estimate, approved by the City Engineer, for the cost to complete the public improvements identified in the construction agreement plus a 10% contingency fee (for a total 110% financial guarantee).
(i) Where applicable, engineering, plan review, and construction review fees, etc., shall be required to be a part of the engineers cost estimate.
(ii) After a period of 2 years from the date of submittal, the City Engineer may require that a revised engineer's estimate and bond be submitted that reflects updated unit prices.
(g) Unit prices used in the engineers cost estimate shall be based on R.S. Means Construction Cost Data, latest edition.
(h) Guarantees shall be made payable to the City of Tipp City and be acceptable to staff and the city's legal counsel.
(i) Incomplete public improvements that the City Engineer determines constitutes a safety hazard, is a maintenance issue, is miscellaneous in nature, or is necessary for the effective functioning of the public improvements, shall be required to be completed prior to the approval of a final plat.
(j) Release of Guarantees
(i) Only City Council shall have the authority to release the final 10% of the original financial guarantee.
(ii) Prior to the release of any guarantee, or portion thereof, the City Engineer shall inspect the completed public improvements and must find that the construction has been completed in conformance with the plans and specifications of the plat.
(iii) Following the City Engineer's inspection and finding that the public improvements, or portion thereof, were installed and completed in accordance with the approved plans, drawings, and these subdivision regulations, the City Engineer may authorize the release of the financial guarantee for the public improvements with the exception that 10% of the original guaranteed amount shall be retained for a 1 year maintenance period for the purposes of ensuring the maintenance of the public improvements. See § 155.04(E)(5)(k) below.
(iv) If only a portion of the public improvements were completed to the satisfaction of the City Engineer, a portion of the original guarantee in line with the amount of public improvements completed may be released by the City Engineer except 10% of the requested amount.
(k) Maintenance of Improvements/ Maintenance Guarantee
(i) During the 1 year maintenance period, the City Engineer may authorize the use of the remaining 10% of the financial guarantee to repair any public improvements and return them to the condition they were in at the time of completion. Any remaining guarantee will then be released to the subdivider upon the approval of the City Council.
(ii) If no repairs or maintenance is necessary, the remaining 10% of the financial guarantee will be released to the subdivider upon approval of the City Council.
(iii) A contractor may post a maintenance bond in an amount equal to 10% of the original financial guarantee for the work that has been installed and accepted by the City Engineer. The City Engineer shall forward a recommendation to the City Council for the acceptance of the improvements into the city system.
(l) Types of Guarantees
(i) Bond
A. A bond in the amount determined in accordance with this section shall be filed with the City of Tipp City.
B. The bond may be in the form of a surety bond (performance or maintenance) or a cash bond of the kind approved by law for securing deposits of public money.
C. The bond shall be executed by the subdivider as principal, and if a surety bond, shall be executed by a corporation authorized to act as a surety under the laws of the State of Ohio.
(ii) Irrevocable Letter of Credit
The subdivider shall provide an irrevocable letter of credit from a bank or other reputable institution or individual subject to the approval of the Law Director. This letter shall be deposited with the city, and shall certify the following:
A. The creditor guarantees funds in an amount equal to the cost, as estimated in accordance with § 155.04(E) for completion all required public improvements.
B. In the case of failure on the part of the subdivider to complete the specified public improvements within the required time period, the creditor shall pay to the city immediately and without further action such funds as are necessary to finance the completion of those public improvements, up to the limit of credit stated in the letter.
C. This irrevocable letter of credit may not be withdrawn or reduced in amount until released by City Engineer excluding the final 10% of the original financial guarantee, which shall be released by City Council.
(iii) Cash
A. The subdivider shall provide a certified check for the amount of the guarantee, payable to the City of Tipp City.
B. When the public improvements are complete, the city shall issue a check for the released amount based on this subsection.
C. The city shall not be responsible for paying interest for the period of time the city retains the guarantee.
(6) Liability Insurance
(a) The subdivider shall, before such installation begins, furnish and keep in full force and effect, at all times during the period required to install the public improvements and for a period of 1 year thereafter, a policy of insurance written by a solvent insurance company authorized to do business in Ohio.
(b) The policy shall be in form and amount satisfactory to the city's legal counsel, insuring and indemnifying the city against any legal liability incurred as a result of damage to persons or property arising out of the acts or omissions of the subdivider, or any of his or her contractors, subcontractors, agents, or employees in connection with the installation or construction of said public improvements, or arising out of the unimproved condition of the streets being improved.
(c) At a minimum, the following is required for all liability insurance policies:
(i) The policy shall protect the city from any liability for any accident, negligence, failure of the subdivider or contractors, or any other liability whatsoever, relating to the construction or maintenance of the subdivision and related public improvements.
(ii) The policy shall be provided during construction and for the 1 year maintenance period required by § 155.04(E)(5).
(iii) The city shall be named as an additional insured on the policy (listed as a Certificate Holder and noted as Additional Insured in Description of Operations).
(iv) The general liability coverage of the policy shall be on the "occurrence" basis.
(v) The automobile liability coverage of the policy shall be for "any auto".
(Ord. 5-14, passed 3-17-2014; Am. Ord. 4-18, passed 1-2-2018)