11-1-6.35.30 Performance Bond

1. Prior to recordation of the Final Plat, after the applicant has obtained Final Plat approval, the applicant shall complete all public improvements required in the subdivision. In lieu, prior to recordation, the applicant may provide an improvement completion assurance agreement to the City to ensure completion of all public improvements required to be installed in the subdivision. The assurance agreement shall be in a form and contain such provisions as approved by the City Attorney or legal counsel. 2. The bond shall be signed by the developer and a bank, savings and loan or Mortgage Company and shall commit the said parties to faithful performance, or in lieu thereof, payment to the City as set forth in the assurance agreement. There shall be a specific commitment not to release any of the said sums without specific approval of the City Council and/or the City Engineer. The City Attorney shall have discretion as to such other terms as may be required from time to time to adequately protect the City and assure final completion of all public improvements. 3. The agreement shall include but not be limited to: a. Completion of the improvements within two years from the date the agreement is executed. Further, such bond shall contain language unconditionally guaranteeing the performance of the developer. A provision shall be provided for unconditional payment of the face amount of the bond within thirty (30) days from the City’s declaration of default by the developer. b. The improvements shall be completed to the satisfaction of the City and in accordance with this chapter. c. The bond amount shall be equal to 100% of the estimated cost of the public improvements to be installed and 10% of the amount of the bond to cover administrative costs incurred by the municipality to complete the improvements, if necessary. i. The cost estimate shall be reviewed by the City Engineer as outlined in this . d. The City shall have exclusive control over the bond proceeds, which may be released only upon written approval of the City Council. e. If the bond proceeds are inadequate to pay the cost of the completion of the improvements according to the City standards, then the applicant is responsible for the deficiency and no further building permits will be issued until the improvements are completed or a new bond issued to insure completion of the remaining improvements. f. If upon written demand of the City after the expiration of the time period bond proceeds are not transferred to the City within 30 days of the demand, then the city's costs of obtaining the proceeds, including any attorney fees and court costs, shall be deducted from the bond proceeds. g. The applicant agrees to hold the City harmless from any and all liability, which may arise, as a result of the improvements, which are installed until such time as the City accepts the improvements, required. 4. Two (2) years after the completion of the required improvements, such improvements shall be inspected by the City Council and/or the City Engineer and if found to be in satisfactory condition, the City Engineer will certify the same to the City Council. In the event the sub divider is in default or fails or neglects to satisfactorily install the required utilities and improvements within two (2) years from the date of approval of the final plat by the Administrative Land Use Authority, the City shall declare the bond forfeited and the City may install or cause the required improvements to be installed, using the proceeds of the bond to defray the expense thereof. 5. A property bond where the bond proceeds are property which is deeded over to the City to be sold by the City, if necessary, to complete the required improvements. 6. Within two (2) years after final approval of plans by the Administrative Land Use Authority, all required improvements shall be completed by the developer and inspected by the City Engineer. The City Engineer shall then certify to the City Council that all requirements have been completed by the developer, at which time the City Council shall give final acceptance to the subdivision. Bond requirements continue for two (2) years after final acceptance. (Ord. 2000-4-12, 4-12-2000; amd. 2000 Code) 7. The time period for the completion of the required public improvements may be extended upon approval of the City Council. 8. Type and Amount of Guarantee: The performance guarantee shall be one of the following, at the discretion of the City Council: a. Cash Deposit: A deposit of cash in a separate escrow account in an amount not less than 100% of the estimated cost of constructing the required improvement or improvements, as determined by the City and 10% of the amount of the deposit to cover administrative costs incurred by the municipality to complete the improvements, if necessary. Said account shall be made with a financial institution acceptable to the City Council and shall be established in such a manner that any release there from shall require the advance written consent of the City. All interest earned from the account shall be the property of the sub divider. 9. Performance Bond: A performance bond in an amount not less than 100% of the estimated cost of the public improvements to be installed and 10% of the amount of the bond to cover administrative costs incurred by the municipality to complete the improvements, if necessary. 10. Final Disposition and Release: The sub divider, or other person giving the performance guarantee provided for by this Title, shall be responsible for all materials and workmanship of the improvement At the completion of the work, or not less than ten (10) days prior to the release date of the bond or other assurance, the person giving the guarantee shall submit to the City Engineer one copy of the drawings of record of the improvement and a certificate of completion. The City Engineer shall then make an inspection of the improvements and shall submit a report to the Mayor and City Council setting forth the condition thereof. If the condition of said improvements is found to be satisfactory and all liens are paid, the Mayor and City Council shall issue a final approval of the improvements. If the condition of material or workmanship shows unusual depreciation or does not comply with the acceptable standards of durability, or if the outstanding liens are not paid, the matter shall be referred to the City Council; and in accordance with Section 10-14-28 of this Title, the City Council may declare the person giving the guarantee in default. (Ord. 2000-4-12, 4-12-2000; amd. 2000 Code) 11. Partial Release Permitted: The City Council may, upon recommendation of the City Engineer and application of the person giving the guarantee, authorize from time to time a partial release of the performance guarantee in accordance with the following schedule: Percent of Work Complete Maximum Percentage Guarantee Of Performance Eligible For Release (Percent Of Total Bond) 50% 40% 75% 60% 100% and a satisfactory final inspection 80% (Ord. 2000-4-12, 4-12-2000) 12. Durability Retaining a. Retaining: A retaining of not less than twenty percent (20%) of the total amount of the guarantee shall be retained by the City for a period of not less than two (2) years following the date of final acceptance of the improvements by the City. Such retaining shall be a guarantee of the durability of all improvements. If after the two (2) year period the durability of said improvements is found to be satisfactory, the City Council shall authorize release of said retaining. If, however, after said period the condition or material or workmanship of the improvement or improvements fails or shows unusual depreciation, or if it becomes evident that certain work was not completed, or that said improvements do not otherwise comply with accepted standards of durability, said condition shall be corrected by the person giving the performance guarantee. If the corrections are not made within a reasonable time, the City Council may, in accordance with Section 1014-28 of this Title, declare such person in default and use the retaining to defray the cost of any required work. (Ord. 2000-4-12, 4-12-2000)