[Ord. No. 508 §1, 11-4-2002]
A.
General Requirements. After the site improvement plans have been approved, but before the City approves, signs and seals the record plat, the developer shall:
1.
Complete the improvements, including "off site" or "public" land improvements, in accordance with the approved improvement plans under the observation and inspection of the appropriate agency along with providing an established escrow agreement or lender's agreement for ten percent (10%) of the cost, as determined by the City Engineer, of said improvements as provided in Subsection (B) below; or
2.
In lieu of complete installation of said improvements, provide a land subdivision bond issued by a surety company or title insurance company to insure or guarantee one hundred ten percent (110%) of the costs of construction and installation of improvements, as specified by the City Engineer, of the required improvements shown by the approved site improvement plans as provided in Subsection (C) below. Such bonds shall include, but are not limited to, performance bonds, payment bonds and maintenance bonds. A subdivision bond for "off site" or "public" land improvements may also be required; or
3.
In lieu of complete installation of said improvements, provide a satisfactory escrow agreement or lender's agreement (irrevocable letter of credit) established to insure or guarantee one hundred ten percent (110%) of the costs of construction and installation of improvements, as specified by the City Engineer, of the required improvements shown by the approved site improvement plans as provided in Subsection (D) below. An agreement for "off site" or "public" land improvements may also be required.
B.
Completion Of Improvements. Prior to commencing any site improvement activity as in Subsection (A)(1) above, the developer shall provide an escrow agreement or lender's agreement acceptable to the Board of Aldermen for ten percent (10%) of the cost of approved improvements. Such escrow agreements and lender's agreements shall guarantee the improvements set forth in the approved improvement plans by providing deposit (cash, certified check or cashier's check) with the City of Foristell or an institution whose deposits are Federally insured by the United States Government of that sum of lawful monies of the United States of America or a lender's agreement in the amount which the City Engineer shall reasonable estimate as the cost of said improvements. The developer shall submit a listing of improvement quantities along with the developer's estimated unit cost to facilitate the City Engineer completing the cost estimate.
1.
Such escrow sum shall be held in a special account by the escrow holder subject to audit by the City Engineer and/or Board of Aldermen of the City of Foristell.
2.
Such lender's agreement shall be subject to audit by the City Engineer and/or the Board of Aldermen of the City of Foristell.
3.
The established sum shall be held by the escrow holder or the lender as provided in the agreement. Authorization of release of such funds shall be written and addressed or copied to the escrow holder or the lender.
4.
Such ten percent (10%) of the total monies estimated for the improvements shall be retained for a period of one (1) year from the date of acceptance of the instrument of dedication by the Board of Aldermen to guarantee proper construction of said improvements. In the event that during this one (1) year period any of the improvements escrowed for are deemed by the City Engineer to fail the construction guarantee, the ten percent (10%) retention shall be used by the City for reconstruction, repair or modification or the improvements as may be required. After the period of one (1) year after the date of acceptance of the instrument of dedication and correction of any deficiencies, all monies remaining in the escrow or lender's agreement shall be released. If deemed in the City's best interest not to perform remedial work within the aforementioned one (1) year period and the developer agrees to extend the escrow agreement, release of all monies can be delayed until a mutually agreed upon date has been reached. No authorization for release of such funds shall be made until inspections have been made certifying that the improvements have been constructed in accordance with the approved plans and meet all the requirements of the City of Foristell.
5.
In the event that the improvements that are to be dedicated to the City are not satisfactorily installed and dedicated within the provisions of paragraph 4 above, the City of Foristell has the right to remove said monies to complete the guaranteed improvements, unless the Board of Aldermen grants an extension of time.
C.
Land Subdivision Bonds. Before approval of the record plat by the Board of Aldermen, a performance guarantee in the form of land subdivision bonds shall be required from the subdivider in the amount of the estimate approved by the City Engineer for the total cost of the required improvements. This performance guarantee shall run to the Board of Aldermen and be with good and sufficient surety, satisfactory to the Board and as approved by the City Attorney, conditioned upon the installation (including maintenance during the development period) of the required improvements within two (2) years after the approval of the record plat. If at the end of the two (2) year period all of the improvements have not been completed, the Board of Aldermen may (1) extend the period for a maximum of one (1) year, or (2) take action to obtain the necessary monies from the surety to complete the improvements, or (3) take action to obtain the necessary monies from the surety to hold in the City Treasury until the improvements may be completed.
1.
Such performance guarantee shall guarantee the total required improvements but may be reduced upon written authorization of the Board of Aldermen upon recommendation by the City Engineer and upon completion of specific improvements provided the release does not exceed seventy-five percent (75%) of the estimated cost for the specific improvement or seventy-five percent (75%) of the total initial amount of the performance guarantee. The total amount remaining in the performance guarantee shall continue to guarantee completion of all improvements until completely released in accordance with paragraphs (2) and (3) below.
2.
Upon completion of all improvements and final inspections and approval and acceptance by the Board of Aldermen of improvements which will be maintained by the City, the Board of Aldermen may release the remaining twenty-five percent (25%) of the performance guarantee.
3.
Such performance guarantee may be held by the City until the Board of Aldermen are provided written certification by the City Engineer that improvements that have been constructed meet applicable standards and have been accepted for maintenance by other responsible agencies such as Missouri Department of Transportation or others.
D.
Escrow Agreements Or Lender's Agreements. Escrow agreements and lender's agreements shall guarantee the one hundred percent (100%) of the costs of improvements set forth in the approved improvement plans by providing deposit (cash, certified check or cashier's check) with the City of Foristell or an institution whose deposits are Federally insured by the United States Government of that sum of lawful monies of the United States of America or a lender's agreement in the amount which the City Engineer shall reasonable estimate as the cost of said improvements. The developer shall submit a listing of improvement quantities along with the developer's estimated unit cost to facilitate the City Engineer completing the cost estimate.
1.
Such escrow sum shall be held in a special account by the escrow holder subject to audit by the City Engineer and/or Board of Aldermen of the City of Foristell.
2.
Such lender's agreement shall be subject to audit by the City Engineer and/or the Board of Aldermen of the City of Foristell.
3.
The established sum shall be held by the escrow holder or the lender as provided in the agreement. Authorization of release of such funds shall be written and addressed or copied to the escrow holder or the lender. The Board of Aldermen, with City Engineer written recommendation, may authorize release for disbursement by the escrow holder or lender for payment of labor and materials used in the construction and installation of the improvements guaranteed, as the work progresses and when such work is approved by the City Engineer.
4.
Ten percent (10%) of the total monies estimated for the improvements shall be retained for a period of one (1) year from the date of acceptance of the instrument of dedication by the Board of Aldermen to guarantee proper construction of said improvements. In the event that during this one (1) year period any of the improvements escrowed for are deemed by the City Engineer to fail the construction guarantee, the ten percent (10%) retention shall be used by the City for reconstruction, repair or modification or the improvements as may be required. After the period of one (1) year after the date of acceptance of the instrument of dedication and correction of any deficiencies, all monies remaining in the escrow or lender's agreement shall be released. If deemed in the City's best interest not to perform remedial work within the aforementioned one (1) year period and the developer agrees to extend the escrow agreement, release of all monies can be delayed until a mutually agreed upon date has been reached. No authorization for release of funds shall be made until inspections have been made certifying that the improvements have been constructed in accordance with the approved plans and meet all the requirements of the City of Foristell.
5.
In the event that the improvements which are to be dedicated to the City are not satisfactorily installed and dedicated within two (2) years after the approval of the improvement plans, the City of Foristell has the right to remove said monies to complete the guaranteed improvements, unless an extension of time is granted by the Board of Aldermen.
E.
Sediment And Erosion Escrow. A cash escrow to be held by the City shall be established to guarantee the performance and maintenance of erosion and sediment control devices. The cash escrow shall be established when the grading, sediment and erosion control plans are approved. The cash escrow will remain in effect until the development is completed and vegetation has been established and all erosion and sediment problems are resolved to the satisfaction of the Board of Aldermen. The developer shall be responsible for all work at the site including work by subcontractors, utility companies and other contractors. The amount of such cash escrow shall be as follows:
1.
Single-family residential (detached) developments shall escrow three hundred fifty dollars ($350.00) per lot (maximum escrow amount of ten thousand dollars ($10,000.00)).
2.
Residential development not included in the above category and commercial or industrial developments shall establish a cash escrow in the amount of one thousand dollars ($1,000.00) per acre. Acreage shall include all disturbed ground required for the total development, regardless if said development occurs in phases (maximum escrow amount of ten thousand dollars ($10,000.00)).
If the erosion and sediment control plan is not effective, non-compliant or not properly maintained, the City shall notify the developer. The notification can be in written or verbal form. The developer shall have three (3) days to correct or remedy the problem to the satisfaction of the City Engineer. If the problem has not been corrected within three (3) days, the City shall use the cash escrow to correct the problem. Corrections shall be deducted from the cash escrow at one hundred percent (100%) of the actual cost plus twenty-five percent (25%) for City administrative costs. | |
If an erosion and sediment control problem is deemed critical, the developer shall have four (4) hours to correct or remedy the problem to the satisfaction of the City. If the problem has not been corrected within four (4) hours, the City shall use the cash escrow to correct the problem, including reimbursement of the City labor and materials, if necessary. Corrections shall be deducted from the cash escrow at one hundred percent (100%) of the actual cost to the City and twenty-five percent (25%) for City administrative costs. | |
In the event any amount is withdrawn from the cash escrow by the City for any reason, the developer shall replenish said escrow account for like amount within ten (10) working days or the development project shall cease and a stop work order shall be issued until said amount is replenished to the escrow account. | |
The cash escrow shall be held in a separate account by the City of Foristell and will bear no interest to the developer, whether or not the City deposits said money in any interest-bearing account. Any such interest earned shall belong solely to the City for deposit into the General Fund. There shall be no partial releases of the cash escrow account to the developer. The cash escrow shall be released upon completion of the development and vegetation has been established and all erosion and sediment problems are resolved to the Boards of Aldermen's satisfaction. |
F.
State Licensed. All bonds, escrow agreements and lender's agreements shall be with a company, bank, surety or lender licensed to do business in the State of Missouri and shall assure that subcontractors, laborers and material suppliers will be paid in the event of developer default and to prevent subcontractors from filing mechanics' liens on the project.
G.
Eligibility. To be eligible, all performance guarantees shall be approved by the City Attorney. All performance guarantees shall be subject to spot audits by the City under the supervision of the City Engineer and/or Board of Aldermen. If the company providing a performance guarantee fails to comply with any of the provisions of the land subdivision or conditions of the performance guarantee, the company shall not thereafter be allowed to provide performance guarantees for any subdivision improvement within the City for a period of two (2) years and shall be subject to any penalties herein established and authorized. In addition, the City Attorney shall take such action at law or in equity as may be required to secure all misappropriated funds.
H.
Conflict Of Interest. In no event, shall the company providing a performance guarantee have any material or other property interest in the proposed subdivision to which the performance relates nor have any other business relationship with the developer in any other development, subdivision or project that would, from the standpoint of the City, be considered a conflict of interest.
I.
Individual Lots. Escrows and performance guarantees shall not be required for grading permits issued for work to be done on an individual residential lot, unless specifically required by the City Engineer.