City of Lebanon, PA Performance Guarantees

[Ord. No. 6-2014, 15, passed 11-24-2014]

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.