[Amended 11-23-2010 by Ord. No. O-10-35]
Purpose: This section establishes procedures for bonding,
subdivision improvement agreements or other guarantees where improvements
are not completed before final approval as provided by RSA 674:36.III(b).
This section also establishes guarantees to warrant and to ensure
proper maintenance of the improvements.
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A. Financial guarantees. No subdivision plat shall be recorded prior
to the applicant providing an acceptable financial guarantee for all
public and/or common private improvements, together with easements
for any public rights-of-way, utility or storm drainage easements,
slope and access easements, conservation easements, agreements to
provide a private easement, public improvement guarantee or any other
required legal document.
B. Acceptable financial guarantee. The following types of financial
guarantees are acceptable to assure the completion of the required
improvements.
(1) A nonlapsing letter of credit drawn on a bank authorized to do business
in New Hampshire payable to the City and deposited with it.
(2) A nonlapsing surety bond issued by a surety company authorized to
do business in New Hampshire, to be filed with the City.
(3) Cash or a certified check to be deposited with the City under an
escrow agreement.
C. Amount of financial guarantee. The amount of the financial guarantee
shall be approved by the City Engineer as sufficient to secure to
the City the satisfactory construction and installation of the required
public and private improvements, including contingency and inflation
factors. A licensed professional engineer shall submit a construction
cost estimate acceptable to the City Engineer which includes breakdowns
by quantity of material and unit costs, along with contingencies,
prior to the presentation of any financial guarantee.
D. Legal provisions. All financial guarantees shall comply with all
statutory requirements and shall be satisfactory to Corporation Counsel
as to form, sufficiency and manner of execution as set forth in these
regulations.
E. Duration. Construction of the required improvements shall be completed
within two years of approval. If construction is not completed during
this time period, the City Engineer may grant an extension of up to
one additional year. Failure to complete all street and utility improvements
to the satisfaction of the City Engineer within the time specified
shall mean forfeiture of the bond, certified check or deposit in escrow.
F. Reduction of financial guarantees. A reduction of a financial guarantee
may be authorized by the City Engineer upon completion of a significant
portion of the subdivision, and then only to the ratio that the public
or private secured improvement so completed relates to the current
total cost of the improvements for the subdivision plat. In no event
shall a financial guarantee be reduced below 25% of the principal
amount until all public improvements are completed and, if required,
accepted by the Board of Aldermen, and all required private improvements
are complete. For private improvements a financial guarantee shall
be reduced upon satisfactory completion of the required private improvements
and then only to the ratio that the private improvement so accepted
bears to the total required private improvements for the subdivision
plat. In no event shall a financial guarantee be reduced below 25%
of the principal amount until all public or secured private improvements
are completed to the satisfaction of the City Engineer.
G. Release of financial guarantees. The release of a financial guarantee shall not be undertaken until the City Engineer has submitted a certificate stating that all required improvements have been satisfactorily completed, an acceptable as-built plan has been submitted, a maintenance guarantee has been provided pursuant to Subsection
H, Maintenance guarantee, and, if required, the public improvements have been accepted by the Board of Aldermen.
H. Maintenance guarantee. The applicant shall be required to file a
maintenance guarantee with the City at the time of release of the
financial guarantee. The maintenance guarantee shall be in an amount
considered adequate by the City Engineer and in a form satisfactory
to Corporation Counsel in order to assure the satisfactory condition
of the required improvements, including all lot improvements on the
individual subdivided lots. The maintenance guarantee shall be in
an amount reflecting 10% of the cost of the completed improvements,
and shall in no event be less than 10% of the original financial guarantee.
The maintenance guarantee shall be for a period of two years after
the date of the acceptance of the improvements by the Board of Aldermen,
if required, or by the City Engineer. Unsatisfactory condition of
the improvements as determined by the City Engineer within the time
specified shall mean forfeiture of the bond, certified check or deposit
in escrow.
A plan may be revoked as provided in RSA 676:4-a.
Approved subdivisions shall be protected from
future changes in regulations and ordinances in accordance with NH
RSA § 674:39 as summarized by the following:
A. Approved subdivision exemption. Every subdivision
approved by the Planning Board shall be exempt from all subsequent
changes in subdivision regulations and zoning ordinances adopted by
the City of Nashua, except those regulations and ordinances which
expressly protect public health standards, such as water quality and
sewage treatment requirements, for a period of four years after the
date of certification of the subdivision by the Planning Board; provided,
however, that once substantial completion of the improvements as shown
on the plans have occurred in compliance with the approved plans,
or the terms of said approval or unless otherwise stipulated by the
Planning Board, the rights of the owner or the owner's successor in
interest shall vest and no subsequent changes in site plan regulations
or zoning ordinances shall operate to affect such improvements; and
further provided that:
(1) Active and substantial development or building has
begun on the site by the owner or the owner's successor in interest
in accordance with the approved plans within 12 months after the date
of approval (certification by the Planning Board), or in accordance
with the terms of the approval, and, if a bond or other security to
cover the costs of roads, drains, or sewers is required in connection
with such approval, such bond or other security is posted with the
City, at the time of commencement of such development;
(2) The development remains in full compliance with the
public health regulations and ordinances of the City of Nashua; and
(3) At the time of approval (certification of the plans
by the Planning Board), the subdivision conforms to the subdivision
regulations, and zoning ordinances then in effect at the site of such
plan.
B. Active and substantial development.
(1) For purposes of these regulations, "active and substantial
development" shall be defined as:
(a)
Construction of and/or installation of basic
infrastructure to support the development (including all of the following:
at least one building foundation wall/footing, roadways, accessways,
etc., to a minimum of gravel base; and utilities placed in underground
conduit ready for connection to proposed buildings/structures) in
accordance with the approved plans; and
(b)
Construction and completion of drainage improvements
to service the development (including all of the following: detention/retention
basins, treatment swales, pipes, underdrain, catch basins, etc.) in
accordance with the approved plans; and
(c)
All erosion control measures (as specified on
the approved plans) must be in place and maintained on the site; and
(d)
Items in Subsection
B(1)(a),
(b) and
(c) shall be reviewed and approved by the Department of Public Works or designated agent.
(2) Movement of earth, excavation, or logging of a site without completion of items in Subsection
B(1)(a),
(b),
(c) and
(d) above, shall not be considered active and substantial development. Plans approved in phases shall be subject to this definition for the phase currently being developed. The Planning Board may, for good cause, extend the twenty-four-month period set forth in Subsection
A(1) above.