As used in the article, the following terms shall have the meanings
indicated:
DEFAULT
A declaration by the Board of Trustees, at any time subsequent to
the expiration of the term of a performance or maintenance bond, that the
development of the subdivision has advanced to a stage where the public improvements
shall be completed forthwith.
FULL COST OF COMPLETING PUBLIC IMPROVEMENTS
Includes, without limitation, the cost of preparation and review
of plans, reports, specifications and documents, the cost of enforcement of
performance or maintenance bonds and/or the obligation of owners to complete
the public improvements and the cost of municipal compliance with prevailing
wage and bidding requirements.
MAINTENANCE BOND
A bond, collateral to the principal obligation of the owner, to secure
or guaranty the proper maintenance of public improvements in a subdivision,
which bond remains in full force and effect for a period of time after completion
of said improvements or until the bond is released by resolution of the Board
of Trustees with the concurrence of the Planning Board.
OWNER
The person or entity which undertakes to subdivide land and whose
responsibility it is to properly complete public improvements in subdivisions.
The term "owner" shall include the terms "principal" and "subdivider" and
"developer" and the term "coprincipal" as used in a performance or maintenance
bond.
PERFORMANCE BOND
A bond, collateral to the principal obligation of the owner, to secure
or guaranty the proper completion of public improvements in a subdivision,
which bond remains in full force and effect until all public improvements
are complete, the subdivision is abandoned without the sale of lots or the
bond is released by resolution of the Board of Trustees with the concurrence
of the Planning Board.
PUBLIC IMPROVEMENTS
Those improvements which are to be used in common by residents of
the subdivision or by the public, whether or not such improvements are offered
for dedication. Public improvements shall include, without limitation, improvements
referenced in the Village Law, improvements depicted or referenced on the
plat or site plan, improvements required by law, code, ordinance, rule or
regulation and improvements agreed to by the owner.
TERM OF A PERFORMANCE OR MAINTENANCE BOND
The period during which a municipality may not declare a default.
Notwithstanding this definition, the Board of Trustees may in proper cases
declare a default with respect to erosion control and drainage in order to
protect the public health, safety and welfare. Notice and due process protection
may be modified in accordance with the severity of the deficiency being remedied.
Prior to the final approval of any subdivision plat, site plan, or other
development plan proposing public improvements, the owner shall either complete
all public improvements or post a performance bond in an amount sufficient
to cover the full cost of completing the public improvements which are not
completed. No building permits shall be issued in a subdivision prior to final
approval of the subdivision plat.
Prior to the acceptance of any public improvement, the owner shall post
a maintenance bond in an amount sufficient to cover the cost of maintaining,
repairing or replacing public improvements which are improperly installed,
defective in design or otherwise unsuitable for the purposes intended. The
amount of the maintenance bond shall be determined by the Planning Board or,
if requested, by the Village Engineer, and shall be equal to not less than
10% of the original amount of the performance bond or original approved cost
estimate for the public improvements.
All performance and maintenance bonds posted subsequent to the effective
date of this article shall be in a standard form approved by the Board of
Trustees. The Board of Trustees, with the advice of the Attorney, shall from
time to time adopt by resolution standard form bonds of the following types:
A. Irrevocable letter of credit.
C. Surety bond. No surety bond shall be accepted by the
Village of Kiryas Joel unless said bond includes a provision guaranteeing
payment of the Village's legal fees for enforcement of the bond in an
amount not less than 10% of the bond amount or $10,000, whichever is greater.
Any bond submitted to the Village pursuant to Village Law § 278
or this chapter shall be deemed to include said provision in accordance herewith.
Nothing herein shall preclude the court from awarding additional costs, fees
or sanctions for frivolous litigation practice on the part of the principal
or surety of the bond.
No performance or maintenance bond nor any increase or reduction thereof
shall be deemed approved until the following are entered into the minutes
of the Board of Trustees:
A. Approval by the Planning Board of the bond amount or
the increase or reduction of such amount.
B. Approval by the Attorney of the form, sufficiency and
execution of the bond or the increase or reduction thereof.
C. Approval by the Board of Trustees of the security or
surety. The Board of Trustees may, in particular cases, require a particular
form of bond.
D. Certification by the Village's engineer that the
amount of the bond would be sufficient to fully compensate the municipality
for the cost of constructing all required improvements, including the costs
of competitive bidding and compliance with public works laws.
E. Certificate by the surety of its experience in guaranteeing
projects of this type. Information required to validate this certification
shall include:
(1) Number of claims and amounts paid prior to settlement.
(2) Number of claims paid upon demand of the municipality
prior to litigation.
(3) Number of claims paid after litigation.
(4) Number of subdivisions completed by surety after default
of contractor.
(5) References from other municipalities.
Estimates of performance and maintenance bond amounts shall be prepared
by the Village Engineer and be based upon the full cost of properly completing
the public improvements. Allowance shall be made for the cost of compliance
with bidding and public works laws and for the expense of enforcement of the
bond. Underestimation of the bond amount shall not estop the Village of Kiryas
Joel in an action against the owner on the obligation to complete the improvements.
This article shall be applicable to all subdivisions, site plans, or
development plans hereafter approved and to all subdivisions which have been
heretofore approved but in which public improvements have not been completed
pursuant to the terms of this article, except that provisions of this article
which are determined to be inconsistent with Village Law § 7-730
shall be applicable to subdivisions heretofore approved three years after
the effective date of this article.
The duties of the Village of Kiryas Joel, its officers, agents and employees
pursuant to this article are general duties of the Village of Kiryas Joel
to protect the public health, safety and welfare. No person is authorized
to create or imply a special relationship pursuant to this article.