[Amended 6-8-2010]
A.
Applicants
whose developments are subject to site plan or subdivision review
shall provide performance guarantees sufficient to ensure the completion
of the following improvements in the Town's rights-of-way, easements
or property:
B.
Performance
guarantees may also be used for improvements on private property.
An applicant may request permission to provide a performance guarantee
to assure that all terms, conditions and plans approved by the Planning
Board, the Design Review Board, the Board of Appeals, or the Planning
Department will be constructed within a year of the lawful issuance
of an occupancy permit. Said permission shall be reviewed by the permitting
authority and as required in this article.
A performance guarantee shall contain a construction
schedule, cost estimates for each major phase of construction taking
into account inflation, provisions for inspections of each phase of
construction, provisions for the release of part or all of the performance
guarantee to the developer, and a date after which the developer will
be in default and the Town shall have access to the funds to finish
construction. The conditions and amount of a performance guarantee
shall be determined by the Planning Board with the advice of the Public
Works Director, the Town Council and/or the Town Attorney. In establishing
the amount of a performance guarantee, the Town may seek independent
verification of the accuracy of the developer's cost estimates or
may set the amount in accordance with the amount of the contract between
the developer and the contractor who will be installing the required
improvements. The amount of a performance guarantee shall be adequate
to cover the entire construction costs of all required improvements,
taking into account the proposed time span of the construction schedule
and the inflation rate for construction costs.
A performance guarantee may take any one of
the following forms:
A.
Escrow account. A cash contribution to the establishment
of an escrow account may be made by either a certified check made
out to the Town, the direct deposit into a savings account, or the
purchase of a certificate of deposit. For any account opened by the
developer, the Town shall be named as owner and the consent of the
Town shall be required for a withdrawal. Any interest earned on the
escrow account shall be returned to the developer unless the expenditure
of the interest by the Town is necessary in order to complete the
required improvements.
B.
Performance bond. A performance bond, issued by a
surety company approved by the Town Council or the Town Manager, may
be made payable to the Town. A performance bond shall detail the conditions
of the bond, the method for release of the bond or portions of the
bond to the developer, and the procedures for collection by the Town.
The bond documents shall specifically reference the development for
which approval is sought.
C.
Irrevocable letter of credit. An irrevocable letter
of credit, issued by a financial institution approved by the Town
Council or the Town Manager, may establish funding for the development
from which the Town may draw if construction is inadequate. An irrevocable
letter of credit shall indicate that funds have been set aside for
the construction of the development and may not be used for any other
project or loan.
D.
Conditional agreement. In the case of a subdivision,
the Planning Board, at its discretion, may provide for the developer
to enter into a binding agreement with the Town in lieu of other performance
guarantees. Such an agreement shall provide for approval of the final
plan on the condition that no lots may be sold or built upon until
either:
(1)
It is certified by the Planning Board, or its agent,
that all of the required improvements have been installed in accordance
with this chapter and the regulations of the appropriate utilities;
or
(2)
A performance guarantee, acceptable to the Town, is
submitted in an amount necessary to cover the completion of the required
improvements at an amount adjusted for inflation and prorated for
the portions of the required improvements already installed. Notice
of the agreement and any conditions shall be on the final plan which
is recorded at the Registry of Deeds.
Prior to the release of any part of a performance
guarantee, the Town Manager shall determine to his/her satisfaction,
in part upon the report of the Code Enforcement Officer, his/her designee,
and whatever other agencies and departments may be included, that
the completed improvements meet or exceed the design and construction
standards for that portion of the improvements for which the release
is requested.
If, upon inspection, the Code Enforcement Officer
or his/her designee finds that any of the required improvements have
not been constructed in accordance with the plans and specifications
filed as part of the application, he/she shall so report in writing
to the municipal officers, the Planning Board, and the developer.
The municipal officers shall take any steps necessary to preserve
the Town's rights.
In addition to any performance guarantee provided pursuant to § 125-93, an applicant shall furnish to the Town security equal to at least 10% of the value of all live plantings required by § 125-67E(12) and H or 125-69L(6). Such security shall be binding for a minimum of three years and shall be subject to the condition that required live plantings be maintained in accordance with the terms of the approved plan and in a good and healthy condition.
