[Ord. No. 6-2014, 15, passed 11-24-2014]
(a)
Performance guarantee in lieu of installation. No plat shall
be finally approved unless the streets shown on such plan have been
improved to a mud-free or otherwise permanently passable condition,
or improved as may be required by the Subdivision and Land Development
Ordinance, and any walkways, curbs, gutters, streets, streetlights,
fire hydrants, shade trees, water mains, sanitary sewers, storm sewers,
stormwater management facilities, required plantings, and other improvements
as may be required by the Subdivision and Land Development Ordinance
have been installed in accordance with this article. In lieu of the
completion of any improvement required as a condition for the final
approval of a plat, the subdivider or developer shall deposit with
the City (depending upon type of improvement) a fiscal security in
an amount sufficient to cover the costs of any improvements or common
amenities, including, but not limited to, roads, stormwater detention
and/or retention basins and other related drainage facilities, open
space improvements, or buffer or screen plantings which may be required.
(b)
Type guarantee. Without limitation as to other types of financial
security which the City may approve, which approval shall not be unreasonably
withheld, federal- or commonwealth-chartered lending institution irrevocable
letters of credit and restrictive escrow accounts in such lending
institutions shall be deemed acceptable financial security for the
purposes of this section. Such financial security shall be posted
with a bonding company or federal- or commonwealth-chartered lending
institution chosen by the party posting the financial security, provided
said bonding company or lending institution is authorized to conduct
such business within the commonwealth. Such bond or other security
shall provide for, and secure to the public, the completion of any
improvements which may be required on or before the date fixed in
the formal action of approval or accompanying agreement for completion
of the improvements.
(c)
Amount of guarantee.
(1)
The amount of financial security to be posted for the completion
of the required improvements shall be equal to 110% of the cost of
completion estimated as of 90 days following the date scheduled for
completion by the developer. Annually, the City may adjust the amount
of the financial security by comparing the actual cost of the improvements
which have been completed and the estimated cost for the completion
of the remaining improvements as of the expiration of the 90th day
after either the original date scheduled for completion or a rescheduled
date of completion.
(2)
Subsequent to said adjustment, the City may require the developer
to post additional security in order to assure that the financial
security equals said 110%. Any additional security shall be posted
by the developer in accordance with this subsection.
(3)
The amount of financial security required shall be based upon
an estimate of the cost of completion of the required improvements,
submitted by an applicant or developer and prepared by a licensed
professional as such in this commonwealth and certified by such licensed
professional to be a fair and reasonable estimate of such cost. The
City Engineer shall review and approve the cost estimate or, for good
cause, refuse to accept the estimate.
(4)
If the party posting the financial security requires more than
one year from the date of posting of the financial security to complete
the required improvements, the amount of financial security may be
increased by an additional 10% for each year period beyond the first
anniversary date from the posting of financial security or to an amount
not exceeding 110% of the cost of completing the required improvements
as reestablished on or about the expiration of the preceding one-year
period by using the above cost estimate preparation procedure. A developer
who fails to complete the improvements within the allotted time specified
in the financial guarantee shall, at least 60 days in advance of the
guarantee expiration date, renew or resubmit a financial guarantee.
Failure to keep a financial guarantee in effect until the completion
and approval of all improvements shall be a violation of this article.
(d)
Progressive installation. In the case where development is projected
over a period of years, the Planning Department may authorize submission
of final plats by sections or phases of development subject to such
requirements or guarantees as to improvements in future sections or
stages of development as it finds essential for the protection of
any finally approved section of the development.
(e)
Release from guarantee.
(1)
As the work of installing the required improvements proceeds,
the party posting the financial security may request the release,
from time to time, of such portions of the financial security necessary
for payment to the contractor or contractors performing the work.
Any such requests shall be made in writing to the Mayor; and within
45 days of receipt of such request, the City Engineer shall certify,
in writing, to his employers whether or not such portion of the work
upon the improvements has been completed in accordance with the approved
plat. When the improvements are certified to be in accordance with
the approved plat, the City shall authorize release by the bonding
company or lending institution of an amount as estimated by the City
Engineer fairly representing the value of the improvements completed.
If the City fails to act within said forty-five-day period, the release
of funds shall be deemed to have been approved as requested. The City
may, prior to final release at the time of completion and certification
by its Engineer, require retention of 10% of the estimated cost of
the aforesaid improvement.
(2)
The applicant shall assume the necessary expense incurred for
the inspection of improvements. Such inspection costs shall be based
upon a schedule, established by ordinance, and amended from time to
time as deemed necessary.
(f)
Maintenance guarantee. Where the City accepts dedication of
all or some of the required improvements following completion, the
City may require the posting of financial security to secure structural
integrity of said improvements as well as the functioning of said
improvements in accordance with the design and specifications depicted
on the final plat for a term not to exceed 18 months from the date
of acceptance of dedication. Said financial security shall be of the
same type as otherwise required in this section with regard to installation
of such improvements. The amount of financial security shall not exceed
15% of the actual cost of installation of said improvements. The bonding
amounts of all improvements included in the maintenance guarantee
may be reduced to said 15% and retained within the performance guarantee
until notification from the City that maintenance guarantee establishment
is received by the City.
(g)
Remedies to effect completion of improvements. In the event
that any required improvements have not been installed as provided
in this article or in accordance with the approved final plat, the
City is hereby granted the power to enforce any corporate bond or
other security by appropriate legal and equitable remedies. If proceeds
of such bond or other security are insufficient to pay the cost of
installing or making repairs or corrections to all the improvements
covered by said security, the City may, at its option, install part
of such improvements in all or part of the subdivision or land development
and may institute appropriate legal or equitable action to recover
the moneys necessary to complete the remainder of the improvements.
All of the proceeds, whether resulting from the security or from any
legal or equitable action brought against the developer, or both,
shall be used solely for the installation of the improvements covered
by such security and not for any other City purpose. Failure to properly
install the required improvements shall also constitute a violation
of this article, punishable as provided by Division VII of this article.
(h)
At the completion of the project, and as a prerequisite for
the final release of the improvements guarantee, the owner/developer
or his representatives shall:
(1)
Provide a certificate of final completion letter from an engineer,
landscape architect, surveyor or other qualified professional verifying
that all permanent facilities have been constructed according to the
plans and specifications and approved revisions thereto.
(2)
Provide a set of as-built (record) drawings.
(i)
After receipt of the certification by the City of Lebanon, a
final inspection shall be conducted by the City Engineer or designated
representative to certify compliance with this article.
[Ord. No. 6-2014, 15, passed 11-24-2014]
The developer agrees to indemnify and save harmless the City
of Lebanon against and from any and all loss, cost, damage, liability,
and expense on account of damage to property of, or injury to or death
of, the parties thereto or a third person, caused by, growing out
of, or in any way whatsoever attributable to the construction of said
improvements and the use of the street(s) delineated on the subdivision
plat during construction. The developer further agrees, but without
limiting its liability to indemnify the City, to carry liability insurance
contracts with a reliable insurance company covering the period of
said construction in the sum of $500,000 to $1,000,000 for injury
to or death of person(s) and in the sum of $500,000 for damage to
or destruction of property, which insurance contracts shall include
the City as named insured.