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There are two types of financial guarantees for improvements:
performance guarantees and maintenance guarantees.
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(1)
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Performance Guarantee: A performance guarantee is a security
instrument accepted by the Town to ensure that all improvements, facilities,
or work required by these Regulations or as a condition of approval
will be completed in compliance with the approved plans and specifications.
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(2)
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Maintenance Guarantee: A maintenance guarantee is a security
instrument accepted by the Town to ensure that necessary improvements
will function as required for a specific period of time.
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(a)
The Applicant's Preliminary Plan submission shall include a letter:
(1)
Requesting that a performance guarantee sufficient to cover
the cost of required improvements be established by the Planning Board,
and which shall indicate the type of guarantee proposed; or
(2)
Indicating his/her intent to complete the required improvements
without a performance guarantee prior to the recording of the plan;
or
(3)
Requesting a combination thereof.
(b)
Proposed arrangements for completion of required improvements shall
be reviewed and approved by the Planning Board at Preliminary Plan
approval.
(a)
Performance Guarantee. A performance guarantee shall be in an amount,
and with all necessary conditions, to secure for the Town the actual
construction and complete installation of all of the required improvements
within the time period specified by the Planning Board. The amount
shall be based upon actual cost estimates for all required improvements.
These estimates shall be prepared by the Town Engineer or his/her
authorized representative (hereafter "Town Engineer"), who shall review
the estimates, if requested, with the Applicant.
The Planning Board may set the performance guarantee in a reasonable
amount in excess of the estimated costs in order to anticipate increases
in economic or construction conditions. However, the amount of such
increase shall not exceed 120% of the estimated cost of improvements.
The Planning Board shall establish the amount of the performance
guarantee prior to Final Plan approval. If Final Plan approval is
handled administratively, the Planning Board may establish the amount
of the performance guarantee at a separate meeting prior to Final
Plan approval.
The Planning Board may review and revise the performance guarantee
amount if the project is delayed beyond the original time period.
(b)
Maintenance Guarantee. A maintenance guarantee shall be in an amount
equal to 20% of the performance guarantee amount set by the Planning
Board during the Preliminary Plan approval process in a manner similar
to that of performance guarantees. If improvements were completed
without a performance guarantee, the Board shall follow the process
described above for establishing performance guarantee cost estimates
and the maintenance guarantee will be an amount equal to 20% of that
figure. The Board may revise the amount of the Maintenance Guarantee
based on the Town Engineer's recommendation at the time the developer
requests the release of the Performance Guarantee.
The security shall be in the form of a cash bond or insurance
bond in the name of the developer or subdivider (not in the name of
a third party contractor or other person or entity) that is acceptable
to the Town of Cumberland Finance Director. The guarantor shall be
licensed to do business in the State of Rhode Island through the Department
of Business Regulation. The security and reliability of the person
or company furnishing the financial instrument must be satisfactory
to the Town of Cumberland Finance Director. The instrument shall enable
the Town to gain timely access to the secured funds, for cause.
Acceptance of the financial instrument in accordance with the
Planning Board's vote to set the amount of the guarantee by the Administrative
Officer shall constitute a binding agreement between the Developer,
the guarantor, and the Town of Cumberland. The guarantee shall be
retained for safekeeping by the Finance Director of the Town of Cumberland.
1.
Construction of Improvements.
For improvements that will be constructed after the posting
of a performance guarantee, construction and installation of all required
improvements shall be completed within one year from the date of acceptance
of the guarantee by the Administrative Officer. If construction and
installation of required improvements cannot be completed in the prescribed
time due to circumstances beyond the control of the Developer, the
Planning Board may grant an extension for a period not to exceed one
year. If required improvements are still not complete, the Town may
access the secured funds and complete the construction, in accordance
with the approved plans. Alternatively, the Board may authorize the
extension of the performance guarantee period to allow the Developer
to construct required improvements or authorize the issuance of a
new performance guarantee, based on an existing conditions map and
revised bond estimate. All guarantees shall remain in full force during
such time extensions.
2.
Releases and Reductions of Performance Guarantee.
Completion of All Improvements. Upon completion of all required
improvements, the Developer shall submit one set of "as built drawings"
and a written request to the Town Engineer to conduct a final construction
inspection, as required in these Regulations. Thereafter, the Developer
shall submit a written request to the Planning Board for release of
80% of the performance guarantee, which shall be accompanied by a
certification from the Town Engineer that all improvements are complete
and in satisfactory condition. The remaining 20% will be held as the
maintenance guarantee.
Partial Completion of Improvements. The Planning Board may authorize
reductions of the performance guarantee amount at any time during
the construction process, in an amount up to 80% of the guarantee.
The Developer shall submit a written request to the Town Engineer
to conduct an inspection of the improvements for which he or she seeks
a reduction, as required in these Regulations. Thereafter, the Developer
shall submit a written request to the Planning Board for the reduction
of the guarantee in an equivalent amount, which shall be accompanied
by a certification from the Town Engineer that such improvements are
complete and in satisfactory condition.
Partial bond reductions shall take place a maximum of two times
per construction phase.
3.
Maintenance Guarantee.
The remaining 20% of the performance guarantee shall serve as
a maintenance guarantee.
Duration. After the Town Engineer certifies the improvements
to be complete and the performance guarantee has been released, the
one year maintenance period shall begin. In cases where the Planning
Board finds there are extenuating circumstances, the maintenance period
may be established for a period longer than one year. The reasons
for establishing a longer maintenance period and the nature of the
extenuating circumstances shall be made a part of the record.
Release. Upon expiration of the maintenance period, the Developer
shall submit a written request to the Town Engineer to conduct a final
maintenance inspection, as required in these Regulations. Thereafter,
the Developer shall submit a written request to the Planning Board
for release of the remaining 20% of the guarantee, which shall be
accompanied by a certification from the Town Engineer that all improvements
are in satisfactory condition for release of the maintenance guarantee.
1.
Construction of Improvements.
If improvements will be constructed without a performance guarantee,
construction and installation of all required improvements shall be
completed prior to recording of the Final Plan. The Developer shall
submit one set of "as built drawings" and a written request to the
Town Engineer to conduct a final construction inspection. Upon satisfactory
completion of all required improvements, the Town Engineer shall certify
to the Planning Board that the improvements are complete and in satisfactory
condition.
2.
Maintenance Guarantee.
The applicant shall not record the Final Plan until a maintenance
guarantee for all public improvements that are being dedicated to
the Town for acceptance and/or maintenance is accepted by the Administrative
Officer.
Duration. After the Town Engineer certifies to the Planning
Board that the improvements are complete and in satisfactory condition
and the maintenance guarantee has been accepted, the one year maintenance
period shall begin. In cases where the Planning Board finds there
are extenuating circumstances, the maintenance period may be established
for a period longer than one year. The reasons for establishing a
longer maintenance period and the nature of the extenuating circumstances
shall be made a part of the record.
Release. Upon expiration of the maintenance period, the Developer
shall submit a written request to the Town Engineer to conduct a final
maintenance inspection, as required in these Regulations. Thereafter,
the Developer shall submit a written request to the Planning Board
for release of the maintenance guarantee, which shall be accompanied
by a certification from the Town Engineer that all improvements are
in satisfactory condition for release of the maintenance guarantee.
(1)
The Town of Cumberland shall hold the Developer in default should
the Developer fail to:
[Amended 6-29-2018]
a.
Meet all specifications for construction of required improvements
to the land, as set forth in these Regulations or as stipulated during
the approval process; or
b.
Meet the following preconstruction requirements prior to the beginning
of any site work, which shall include the scheduling of a preconstruction
conference with the Town Engineer, or his/her authorized field representative,
to secure Town authorization to commence work; and the staking of
the limits of disturbance in the field, as delineated on the approved
Final Plan(s); or
c.
Properly notify the Town Engineer of the beginning and completion
of all phases of construction of required improvements to the land,
as outlined in these Regulations; or
d.
Protect existing improvements and/or properly repair such improvements
should damage occur during construction of the subdivision or land
development project; or
e.
Remove all debris, including boulders and stumps, from the site and
adjacent areas immediately upon completion of construction and/or
as directed by the Town Engineer or Building Official; or
f.
Complete required improvements to the land within the time prescribed
in these Regulations; or
g.
Correct improvement deficiencies evident within one year of completion
of said improvements; or
h.
Keep the road passable upon the occupancy of any units; or
i.
Provide the Town Engineer, or his/her authorized representative,
with as-built plans of the improvements.
j.
Final Plans shall specify all approved waivers and shall further
specify the aforementioned requirements with general construction
notes.
(2)
Should any of the conditions cited above occur, the Town Engineer
shall certify in writing to the Administrative Officer that the Developer
has not complied with the requirements of these Regulations and the
plans as approved by the Planning Board. The Town Engineer shall further
explain the extent of non-compliance and the conditions thereof. The
Planning Board shall give the Developer an opportunity to respond
at a Planning Board meeting. If the Planning Board concurs with the
Town Engineer and deems the Developer to be in default, the Planning
Board may authorize the Solicitor to enforce the guarantees by all
appropriate legal and equitable remedies.
When projects are approved and constructed in phases, the Planning
Board shall specify improvement guarantees related to each particular
phase. If any off-site improvements or other improvements or conditions
which are not directly related to a particular phase are required
as a condition of approval, the Planning Board shall, in setting the
guarantee amount for each phase, clearly specify when such guarantees
are to be provided and the amount for same.
The Planning Board may require improvements that are proposed
to be privately owned and maintained to be covered by an improvement
guarantee in a manner similar to the process for public improvements.
Developer shall be responsible for the construction, maintenance,
and overall quality of required improvements until the Town formally
accepts the improvements for ownership and maintenance. The Developer
shall be responsible for the construction, maintenance, and overall
quality of required improvements until such time, notwithstanding
the transfer of ownership to, the delegation of duties to, or damages
caused by:
