[HISTORY: Adopted by the Town Board of the Town of Crawford as indicated
in article histories. Amendments noted where applicable.]
[Adopted 3-12-1987 by L.L. No. 2-1987]
A.
The Town Board of the Town of Crawford hereby finds and
determines that the existing system of performance and maintenance bonds provided
to the municipality as an alternative to the prior completion of public improvements
in a subdivision is deficient in providing for and protecting the public health,
safety and welfare. Inflation, inadequate estimates, incomplete and/or inadequate
description of improvements in bonds, unmeritorious defenses to enforcement
of bonds and the high cost of enforcing performance and maintenance bonds
have resulted in failure to properly complete public improvements, hardship
to purchasers of lots in the subdivisions and to the general public and unjust
enrichment of owners, subdividers and developers of subdivisions.
B.
It is the intent of this article to provide clarity and
definition to the established method of guaranteeing the proper completion
of public improvements in subdivisions, to nullify the imposition of unmeritorious
defenses and to eliminate the costs of enforcement of performance and maintenance
bonds so as to protect purchasers of lots in subdivisions and the general
public and to advance the intent of Town Law that public improvements in subdivision
be completed at the expense of the owner, subdividers or developer.
As used in this article, the following terms shall have the meanings
indicated:
A declaration by the Town Board at any time subsequent to the expiration
of the term of a performance or maintenance bond that the development of the
subdivision has advanced to a stage where the public improvements shall be
completed forthwith.
Includes, without limitation, the cost of preparation and review
of plans, reports, specifications and documents, the cost of enforcement of
performance or maintenance bonds and/or the obligation of owners to complete
the public improvements and the cost of municipal compliance with prevailing
wage and bidding requirements.
A bond, collateral to the principal obligation of the owner, to secure
or guaranty the proper maintenance of public improvements in a subdivision,
which bond remains in full force and effect for a period of time after completion
of said improvements or until the bond is released by resolution of the Town
Board with the concurrence of the Planning Board.
The person or entity which undertakes to subdivide land and whose
responsibility it is to properly complete public improvements in subdivisions.
The term "owner" shall include the terms "principal" and "subdivider" and
"developer" and the term "coprincipal" as used in a performance or maintenance
bond.
A bond, collateral to the principal obligation of the owner, to secure
or guaranty the proper completion of public improvements in a subdivision,
which bond remains in full force and effect until all public improvements
are complete, the subdivision is abandoned without the sale of lots or the
bond is released by resolution of the Town Board with the concurrence of the
Planning Board.
Those improvements which are to be used in common by residents of
the subdivision or by the public, whether or not such improvements are offered
for dedication. Public improvements shall include, without limitation, improvements
referenced in the Town Law, improvements depicted or referenced on the plat,
improvements required by law, code, ordinance, rule or regulation and improvements
agreed to by the owner.
The period during which a municipality may not declare a default.
Notwithstanding this definition, the Town Board may in proper cases declare
a default with respect to erosion control and drainage in order to protect
the public health, safety and welfare. Notice and due process protection may
be modified in accordance with the severity of the deficiency being remedied.
[Amended 5-8-1997 by L.L. No. 4-1997[1]]
[1]
Editor's Note: This local law also provided that it shall supersede
any inconsistent provision of the Town Law.
Prior to the final approval of any subdivision plat, the owner shall
either complete all public improvements or post a performance bond in an amount
sufficient to cover the full cost of completing the public improvements which
are not completed. No building permits shall be issued in a subdivision prior
to final approval of the subdivision plat.
[Amended 5-8-1997 by L.L. No. 4-1997[1]]
Prior to the acceptance of any public improvement, the owner shall post
a maintenance bond in an amount sufficient to cover the cost of maintaining,
repairing or replacing public improvements which are improperly installed,
defective in design or otherwise unsuitable for the purposes intended. The
amount of the maintenance bond shall be determined by the Highway Superintendent
or, if requested, by the Town Engineer, and shall be equal to not less than
10% of the original amount of the performance bond or original approved cost
estimate for the public improvements.
[1]
Editor's Note: This local law also provided that it shall supersede
any inconsistent provision of the Town Law.
All performance and maintenance bonds posted subsequent to the effective
date of this article shall be in a standard form approved by the Town Board.
The Town Board, with the advice of the Attorney, shall from time to time adopt
by resolution standard form bonds of the following types:
A.
Irrevocable letter of credit.
B.
Cash bond.
C.
Surety bond. No surety bond shall be accepted by the
Town of Crawford unless said bond includes a provision guaranteeing payment
of the Town's legal fees for enforcement of the bond in an amount not less
than 10% of the bond amount or $10,000, whichever is greater. Any bond submitted
to the Town pursuant to Town Law § 278 or this chapter shall be
deemed to include said provision in accordance herewith. Nothing herein shall
preclude the court from awarding additional costs, fees or sanctions for frivolous
litigation practice on the part of the principal or surety of the bond.
[Amended 5-8-1997 by L.L. No. 4-1997[1]]
[1]
Editor's Note: This local law also provided that it shall supersede
any inconsistent provision of the Town Law.
No performance or maintenance bond nor any increase or reduction thereof
shall be deemed approved until the following are entered into the minutes
of the Town Board:
A.
Approval by the Planning Board of the bond amount or
the increase or reduction of such amount.
B.
Approval by the Attorney of the form, sufficiency and
execution of the bond or the increase or reduction thereof.
C.
Approval by the Town Board of the security or surety.
The Town Board may, in particular cases, require a particular form of bond.
D.
Certification by the Town's Engineer that the amount
of the bond would be sufficient to fully compensate the municipality for the
cost of constructing all required improvements, including the costs of competitive
bidding and compliance with public works laws.
E.
Certificate by the surety of its experience in guaranteeing
projects of this type. Information required to validate this certification
shall include:
Estimates of performance and maintenance bond amounts shall be based
upon the full cost of properly completing the public improvements. Allowance
shall be made for the cost of compliance with bidding and public works laws
and for the expense of enforcement of the bond. Underestimation of the bond
amount shall not estop the Town of Crawford in an action against the owner
on the obligation to complete the improvements.
A.
Whenever warranted by changed circumstances and upon
approval of the Town Board, the Planning Board may, upon due notice and public
hearing, modify the requirements for public improvements or increase or reduce
the amount of the performance or maintenance bond.
B.
Whenever the amount of a performance or maintenance bond
is increased and the owner fails, within a reasonable time thereafter, as
determined by the Town Board, to post such increased amount, the Town Board
may declare a default whether or not the term of any existing bond has expired.
C.
No decrease or reduction in the amount of quality of
public improvements in a subdivision shall be effective until an amendment
to the plat is duly recorded in the County Clerk's office.
A.
The public improvements in a subdivision shall not be
deemed complete unless the Municipal Engineer certifies that all the public
improvements are complete and said certification has been accepted by resolution
of the Town Board; nor shall any portion of such public improvements be deemed
complete unless the Municipal Engineer certifies that particularly specified
improvements are complete and said certification has been accepted by resolution
of the Town Board. A certification by the Municipal Engineer which is incorrect
shall be void.
B.
The Municipal Engineer shall issue the certification required by Subsection A above upon written demand by the owner or his authorized agent if, in fact, the public improvements are properly completed. If the Municipal Engineer refuses or neglects to issue such certification within 30 days, the owner may submit the certification of a competent engineer licensed in New York certifying to the Town of Crawford either that all or a specified portion of the public improvements are properly complete. Such certification shall bear the seal of the engineer.
C.
The public improvements in a subdivision shall not be
deemed complete unless acceptance of the certification of such completion
or partial completion as required by this section is made by resolution of
the Town Board, and said acceptance shall not be effective unless said resolution
is recorded in the minutes of the Town Board.
A.
The right of the surety to perform the obligation of
the owner shall be deemed waived if the surety either fails to assert such
right by written instrument received by the Town Board within 30 days of transmittal
of notice of default or, following such assertion, fails to make satisfactory
arrangements approved by resolution of the Town Board within 60 days of transmittal
of notice of default. Upon waiver by the surety of the right to perform the
obligation, the performance or maintenance bond shall be deemed an instrument
for the payment of money only as referenced in CPLR § 3213.
B.
In the event that the surety chooses to assert any legal defense, whether of the surety or the principal, within the thirty-day period required by Subsection A above, it shall be a condition precedent of maintaining such defense that the surety pay over the full amount of the bond demanded by the Town. In the event that the surety fails to comply with said condition precedent, the performance or maintenance bond shall be deemed an instrument for the payment of money only as referenced in Civil Practice Law and Rules § 3213. In the event that such defense is determined by a court of competent jurisdiction to be valid, the surety shall be entitled to interest on the judgment amount at the prevailing judgment rate from the date of payment of said moneys.
[Added 5-8-1997 by L.L. No. 4-1997[1]]
[1]
Editor's Note: This local law also provided that it shall supersede
any inconsistent provision of the Town Law.
C.
If the full cost of completion of the public improvements
by the Town of Crawford is less than the face or penal amount of the surety
bond which shall be paid over to the Town of Crawford, the moneys not expended
shall be returned to the surety.
A.
The obligation of the owner to complete all the public
improvements is not limited by the posting of a performance and maintenance
bond, and such obligation may be enforced independently of the obligation
on the performance and maintenance bond.
B.
The absence from the minutes of the Town Board wherein
the certification of completion required above is to be entered shall be prima
facie evidence that the public improvements are not complete.
This article shall be applicable to all subdivisions hereafter approved
and to all subdivisions which have been heretofore approved but in which public
improvements have not been completed pursuant to the terms of this article,
except that provisions of this article which are determined to be inconsistent
with Town Law § 276 shall be applicable to subdivisions heretofore
approved three years after the effective date of this article.
The duties of the Town of Crawford, its officers, agents and employees
pursuant to this article are general duties of the Town of Crawford to protect
the public health, safety and welfare. No person is authorized to create or
imply a special relationship pursuant to this article.
A.
This article shall be interpreted so as to most fully
implement the intent that public improvements in a subdivision are properly
completed at the owner's expense. If any provision, sentence, word or phrase
of this article is judicially determined to be invalid, illegal or unconstitutional,
such invalidity, illegality or unconstitutionality shall be confined to the
particular part which is so determined and shall not affect the validity of
the remainder of this article, which shall be interpreted so as to most fully
implement the intent of this article.
B.
No action or proceeding to challenge the consistency,
validity, legality or constitutionality of any part of this article shall
be commenced or prosecuted unless the Zoning Board of Appeals of the Town
of Crawford has rendered an interpretation of such part of this article.
