§ 300-27. Guarantees and sureties.

(a)

Guarantees and sureties. Three types of guarantees and sureties may be provided for as a part of the final plat approval and development permitting process:

(1)

Performance guarantees.

(2)

Maintenance guarantees.

(3)

Maintenance Agreements.

(b)

Performance guarantees. Performance sureties shall be allowed for required public improvements not yet completed. In lieu of requiring the completion, installation, and dedication of any and all improvements (e.g., water, sewer, street lights, landscaping, etc.) prior to approval of a final plat or certificate of occupancy/completion (CO), the City may enter into a written agreement with the developer or subdivider whereby the developer or subdivider shall agree to complete all required improvements prior to the release of the performance guarantee. Once said agreement is signed by both parties and the security required herein is provided, the final plat or CO/CC may be approved, if all other requirements of this chapter are met. To secure this agreement, the developer or subdivider shall provide either one, or a combination of the following guarantees equal to 1-1/2 times the entire cost of the improvements secured:

(1)

Surety performance bond(s). The developer or subdivider shall obtain a performance bond(s) from a surety bonding company authorized to do business in the state. The bond shall be payable to the City and shall be in an amount equal to 1-1/2 times the entire cost, as estimated by the developer or subdivider and verified by the City, of installing all required improvements. The duration of the bond(s) shall be for no longer than 12 months or until such lesser time that the improvements are accepted by the city. Any expenses associated with the cost verification by the City shall be paid entirely by the developer or subdivider.

(2)

Cash or equivalent security. The developer or subdivider shall deposit cash, an irrevocable letter of credit, or other instrument readily convertible into cash at face value, either with the city or in escrow with a financial institution designated as an official depository of the city. The amount of deposit shall be equal to 1-1/2 times the entire cost, as estimated by the developer or subdivider, and verified by the city, of installing all required improvements, unless stated otherwise in this UDO. The duration of this instrument shall be for no longer than 12 months or until such lesser time that the improvements are accepted by the City. Any expenses associated with the cost verification by the city shall be paid entirely by the developer or subdivider.

(3)

If cash or other instrument is deposited in escrow with a financial institution as provided above, then the developer or subdivider shall file with the Development Department an agreement between the financial institution and the developer or subdivider guaranteeing the following:

a.

That said escrow amount will be held in trust until released by the Development Director and may not be used or pledged by the developer or subdivider in any other transaction during the term of the escrow; and

b.

That in case of a failure on the part of the developer or subdivider to complete said improvements, the financial institution shall, upon notification of the city to the financial institution of an estimate of the amount needed to complete the improvements, immediately pay to the city the funds estimated to complete the improvements, up to the full balance of the escrow account, or deliver to the City any other instruments fully endorsed or otherwise made payable in full to the City.

(c)

Maintenance guarantees.

(1)

Maintenance guarantees shall be provided as required in this UDO for the ongoing maintenance of public improvements, stormwater management facilities and landscaping for a period of 24 months following the date of approval of development conformance. The amount of deposit shall be equal to 60 percent of the construction value.

(2)

The Agreement shall be accompanied by a bond, letter of credit, or other acceptable surety providing for the maintenance as provided in of all installation and public improvements required by this UDO.

(d)

Sustainable Certification Close-out guarantees.

(1)

A performance bond in accordance with the bonding requirements of this section and the terms of Sustainable Certification in Section 230-9 shall be submitted.

(e)

Default. Upon default, meaning failure on the part of the subdivider or developer to complete the required improvements in the time allowed by this chapter or as spelled out in the performance or maintenance bond or escrow agreement, then the surety, or financial institution holding the escrow account, shall, if requested by the city, pay all or any portion of the bond or escrow fund to the city up to the amount needed to complete the improvements based on an estimate by the city. Upon payment, the city, in its discretion, may expend such portion of said funds as it deems necessary to complete all or any portion of the required improvements. The City shall return to the subdivider any funds not spent in completing the improvements.

(f)

Release of guarantee security. The city may release a portion of any security posted as the improvements are completed or maintenance period completed and approved by the Development Director. When the Development Director approves said improvements, the Development Director shall inspect the premises and if work is found to be completed and satisfactory, the Development Director shall release the portion of the security posted which covers the approved cost of the improvements and maintenance of satisfactorily completed work that was subject to the security. It shall be the responsibility of the developer to petition the city for release of guarantees and sureties and to warrant that all improvements subject to the guarantee or surety have been completed to fulfill the requirements of this UDO.

(g)

Stormwater management inspection and maintenance agreements.

(1)

Prior to the issuance of any project close-out or certificate of occupancy/completion requiring a stormwater management facility or practice hereunder and for which the City requires ongoing maintenance, the applicant or owner of the site must, unless an on-site stormwater management facility or practice is dedicated to and accepted by the City, execute an inspection and maintenance agreement, and/or a conservation easement, if applicable, that shall be binding on all subsequent owners of the site. The inspection and maintenance agreement, if applicable, must be approved by the City prior to approval, and recorded in the deed records of the clerk of superior court of the county. The inspection and maintenance agreement shall identify by name or official title the person(s) responsible for carrying out the inspection and maintenance. Responsibility for the operation and maintenance of the stormwater management facility or practice, unless assumed by a governmental agency, shall remain with the property owner and shall pass to any successor owner. If portions of the land are sold or otherwise transferred, legally binding arrangements shall be made to pass the inspection and maintenance responsibility to the appropriate successors in title. These arrangements shall designate for each portion of the site, the person to be permanently responsible for its inspection and maintenance.

(2)

As part of the inspection and maintenance agreement, a schedule shall be developed for when and how often routine inspection and maintenance will occur to ensure proper function of the stormwater management facility or practice, including their associated landscaping measures. The agreement shall also include plans for annual inspections to ensure proper performance of the facility between scheduled maintenance and shall also include remedies for the default thereof.

(3)

In addition to enforcing the terms of the inspection and maintenance agreement, the City may also enforce all of the provisions for ongoing inspection and maintenance in Section 340-41 of this Article.

(4)

The City, in lieu of an inspection and maintenance agreement, may accept dedication of any existing or future stormwater management facility for maintenance, provided such facility meets all the requirements of this Article and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance.

(h)

Stormwater Performance and maintenance bonds. Either the land owner or the developer, prior to project close-out, certificate of occupancy/completion, or final plat shall post a bond or other security in sufficient amount to guarantee the performance of all construction and/or maintenance obligations hereunder. A maintenance bond for the project's stormwater management measures in the amount of $5.00/cubic foot of storage for a two-year time period shall be provided.

(i)

As-built drawings and plans of all water, sewer, and storm drainage system facilities, illustrating their layouts and connections to existing systems. Such plans shall show all easements and rights-of-way, to demonstrate that the facilities are properly placed and the locations of all fire hydrants, blow offs, manholes, pumps, force mains, and gate valves are indicated. This information shall not be placed on the final plat but must be submitted at the time of request for final plat approval or prior to the issuance of the certificate of occupancy/completion, whichever comes later.

(Ord. No. 743 , 12-19-17)