[HISTORY: Adopted by the Board of Trustees
of the Village of Montgomery 3-2-1987 by L.L. No. 1-1987. Amendments noted where
applicable.]
A.Â
The Board of Trustees of the Village of Montgomery
hereby finds and determines that the existing system of performance
and maintenance bonds provided to the municipality as an alternative
to the prior completion of public improvements in a subdivision is
deficient in providing for and protecting the public health, safety
and welfare. Inflation, inadequate estimates, incomplete and/or inadequate
description of improvements in bonds, unmeritorious defenses to enforcement
of bonds and the high cost of enforcing performance and maintenance
bonds have resulted in failure to properly complete public improvements,
hardship to purchasers of lots in the subdivisions and to the general
public, and unjust enrichment of owners, subdividers and developers
of subdivisions.
B.Â
It is the intent of this chapter to provide clarity
and definition to the established method of guaranteeing the proper
completion of public improvements in subdivisions, to nullify the
imposition of unmeritorious defenses and to eliminate the costs of
enforcement of performance and maintenance bonds so as to protect
purchasers of lots in subdivisions and the general public and to advance
the intent of the Village Law that public improvements in subdivisions
shall be completed at the expense of the owner, subdivider or developer.
As used in this chapter, the following terms
shall have the meanings indicated:
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.
The full cost of completing public improvements shall include,
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.
A bond, collateral to the principal obligation of the owner,
to secure or guarantee 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 the bond
is released by resolution of the Board of Trustees with the concurrence
of the Planning Board.
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,"
"subdivider" and "developer," and the term "coprincipal" as used in
a performance or maintenance bond.
A bond, collateral to the principal obligation of the owner,
to secure or guarantee 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.
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, improvements required by law,
code, ordinance, rule or regulation and improvements agreed to by
the owner.
The term of a performance or maintenance bond is the period
during which the municipality may not declare a default.
Prior to the final approval of any subdivision
plat, 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.
All performance and maintenance bonds posted
subsequent to the effective date of this chapter 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:
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.Â
Approval by the Planning Board of the bond amount
or the increase or reduction of such amount.
B.Â
Approval by the attorney of the form, sufficiency
and execution of the bond or the increase or reduction thereof.
C.Â
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.Â
Certification by the owner'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 cost of competitive bidding and compliance with public works'
laws.
E.Â
A certificate by the surety of its experience in guaranteeing
projects of this type. Information required to validate this certification
shall include:
(1)Â
The number of claims and amounts paid prior to settlement.
(2)Â
The number of claims paid upon demand of the municipality
prior to litigation.
(3)Â
The number of claims paid after litigation.
(4)Â
The number of subdivisions completed by surety after
default of the contractor.
(5)Â
References from other municipalities.
Estimates of performance and maintenance bond
amounts shall 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 Montgomery in an action against the owner on the obligation
to complete the improvements.
A.Â
Whenever warranted by changed circumstances and upon
approval of the Board of Trustees, the Planning Board may, upon due
notice and public hearing, modify the requirements for public improvements
or increase or reduce the amount of the performance or maintenance
bond.
B.Â
Whenever the amount of a performance or maintenance
bond is increased and the owner fails within a reasonable time thereafter,
as determined by the Board of Trustees, to post such increased amount,
the Board of Trustees may declare a default, whether or not the term
of any existing bond has expired.
C.Â
No decrease or reduction in the amount or quality
of public improvements in a subdivision shall be effective until an
amendment to the plat is duly recorded in the county clerk's office.
A.Â
The public improvements in a subdivision shall not
be deemed complete unless the Municipal Engineer certifies that all
the public improvements are complete and said certification has been
accepted by resolution of the Board of Trustees; nor shall any portion
of such public improvements be deemed complete unless the municipal
engineer certifies that particularly specified improvements are complete
and said certification has been accepted by resolution of the Board
of Trustees. A certification by the Municipal Engineer which is incorrect
shall be void.
B.Â
The Municipal Engineer shall issue the certification required by Subsection A above upon written demand by the owner or his authorized agent if in fact the public improvements are properly completed. If the Municipal Engineer refuses or neglects to issue such certification within 30 days, the owner may submit the certification of a competent engineer, licensed in New York, certifying to the Village of Montgomery either that all or a specified portion of the public improvements are properly complete. Such certification shall bear the seal of the engineer.
C.Â
The public improvements in a subdivision shall not
be deemed complete unless acceptance of the certification of such
completion or partial completion as required by this section is made
by resolution of the Board of Trustees, and said acceptance shall
not be effective unless said resolution is recorded in the minutes
of the Board of Trustees.
A.Â
The right of the surety to perform the obligation
of the owner shall be deemed waived if the surety either fails to
assert such right by written instrument received by the Board of Trustees
within 30 days of transmittal of notice of default or, following such
assertion, fails to make satisfactory arrangements approved by resolution
of the Board of Trustees within 60 days of transmittal of notice of
default. Upon waiver by the surety of the right to perform the obligation,
the performance or maintenance bond shall be deemed an instrument
for the payment of money only as referenced in CPLR § 3213.
B.Â
If the full cost of completion of the public improvements
by the Village of Montgomery is less than the face or penal amount
of the surety bond which shall be paid over to the Village of Montgomery,
the moneys not expended shall be returned to the surety.
A.Â
The obligation of the owner to complete all the public
improvements is not limited by the posting of a performance and maintenance
bond, and such obligation may be enforced independently of the obligation
on the performance and maintenance bond.
B.Â
The absence from the minutes of the Board of Trustees
wherein the certification of completion required above is to be entered
shall be prima facie evidence that the public improvements are not
complete.
This chapter shall be applicable to all subdivisions
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 chapter, except that provisions of this
chapter 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 chapter.
The duties of the Village of Montgomery, its
officers, agents and employees pursuant to this chapter are general
duties of the Village of Montgomery to protect the public health,
safety and welfare. No person is authorized to create or imply a special
relationship pursuant to this chapter.
A.Â
This chapter shall be interpreted so as to most fully
implement the intent that public improvements in a subdivision be
properly completed at the owner's expense. If any provision, sentence,
word or phrase of this chapter is judicially determined to be invalid,
illegal or unconstitutional, such invalidity, illegality or unconstitutionality
shall be confined to the particular part which is so determined and
shall be confined to the particular part which is so determined and
shall not affect the validity of the remainder of this chapter, which
shall be interpreted so as to most fully implement the intent of this
chapter.
B.Â
No action or proceeding to challenge the consistency,
validity, legality or constitutionality of any part of this chapter
shall be commenced or prosecuted unless the Zoning Board of Appeals
of the Village of Montgomery has rendered an interpretation of such
part of this chapter.
