[HISTORY: Adopted by the Town Board of the
Town of Monroe 12-4-2000 by L.L. No. 6-2000.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law repealed former
Ch. 36, Performance Bonds, adopted 7-7-1969 by L.L. No. 1-1969, as
amended. It also stated that it superseded § 277, Subdivision
9, of the Town Law of the State of New York.
A.
Findings.
(1)
Since the Town Board had, in the past, experienced
difficulties in attempting to secure performance by surety or bonding
companies under performance bonds required by the Planning Board as
a prerequisite of subdivision and site plan approvals, the Town Board
previously established a procedure to provide for the deposit of 25%
of the bond deemed necessary to secure the installation of required
improvements with the Town in the form of cash. Under that procedure,
the Town was permitted to use that cash to complete installation of
public improvements without the necessity of legal proceedings to
enforce the performance bond. While this procedure has helped to insure
the speedy installation of certain public improvements and, at the
same time offered an incentive to developers to properly install such
improvements by the return, upon completion, of the deposit with earned
interest, this procedure had application to only a few types of improvements
and then only in the subdivision context. Additionally, the cash portion
of the bond may not be adequate to complete the improvements it was
posted to secure because it represents only 25% of the total cost
of such improvements.
(2)
Moreover, the Town has thus far had no ability, short
of completing site improvements itself to adequately safeguard project
sites where developers have failed to properly complete required public
improvements even when adequate financial security is in place. The
Town has no desire to act in a developer's stead but does wish to
return any uncompleted project site to a safe, secure and stable condition
without undue burden on the residents of the Town of Monroe.
(3)
Finally, the Town Board believes that all public improvements,
i.e., all those improvements which are necessary to protect the health,
welfare and safety of the residents of the Town of Monroe, should
be subject to the same procedures and should require the same financial
security.
B.
Determinations.
(1)
From these foregoing findings, it is the determination
of the Town Board that there is a need for a procedure to inspect
all physical improvements to be constructed and all alterations made
to land and topography pursuant to approvals granted by the Planning
Board which affect the health, welfare and safety of the residents
of the Town of Monroe, i.e., public improvements, in order to assure
that said public improvements have been properly constructed, with
due sensitivity to the environment, in a manner consistent with the
plans approved by the Planning Board, and without undue burden on
the residents of the Town of Monroe.
(2)
It is also the determination of the Town Board that
the projected cost of all public improvements be fully secured by
either cash or letter of credit and that, in appropriate circumstances,
a portion of that security be held for a reasonable period of time
to insure proper maintenance of public improvements which require
the same to function.
(3)
Furthermore, it is the determination of the Town of
Monroe that, in those instances where public improvements are not
properly or timely completed by a developer, authorization is needed
for the Town of Monroe to use available financial security posted
by that developer to either complete such public improvements or to
safeguard the project site where such improvements have not been completed
as to adequately protect the health, welfare and safety of the residents
of the Town of Monroe.
(4)
In order to offset the cost of inspecting public improvements
and to determine compliance with the intent of this chapter, there
should also be a flexible procedure whereby the cost of retaining
such specialized inspectors can be, by contract with the developer,
charged to the developer.
(5)
It is the further determination of the Town of Monroe
Town Board that, to protect the public interest and welfare, developers
be required to enter into agreements with the Town under which all
public improvements integral to a given Planning Board approval shall
be identified, a schedule of their completion fixed, and appropriate
financial security shall be posted prior to the commencement of their
construction in order that, should a developer fail to timely or properly
complete such improvements, the Town can carry through with such improvements,
or appropriately safeguard the project site, pursuing either alternative
without undue burden on the residents of the Town.
For the purpose of this chapter, the following
terms shall have the meanings indicated:
Any applicant seeking site plan, special use or subdivision
approval, whether an owner, contract vendee, lessor, lessee, managing
agent, etc., and shall include the agents of said applicant for approval
and all successors in interest of same. The term "developer" shall
include any owner, contract vendee, lessor, lessee, managing agent,
etc., as the same exists at the time of site plan approval, at the
time of building permit issuance, and at the time that issuance of
a certificate of occupancy is sought.
Any written and executed guaranty, obligation or promise
to maintain, repair or replace any public improvements previously
installed or constructed within a fixed period of time from the date
when such public improvements were accepted for dedication by the
Town, whether made by a surety or bonding company, a developer or
any other third party.
The owner of any real property located within the Town that
is the subject of a performance bond required either by the Planning
Board or any other agency of the Town or by local law or ordinance
of the Town.
Any written and executed guaranty, obligation or promise,
made by an owner or developer of property who has received site plan,
special use or subdivision approval from the Planning Board to install
public improvements required by the Planning Board as part of said
approval or to perform other required acts within a fixed period of
time that may be required by the Planning Board pursuant to plan approval,
Town Board or any local law or ordinance of the Town.
The estimate of the Town Engineer of the full costs of the
installation of such public improvements or requirements guaranteed
or promised by the performance bond.
The Planning Board of the Town.
Any street, roadway, curb, gutter, sidewalk, parking lot,
retaining wall, water main, fire hydrant, sanitary waste disposal
facility or structure, storm drain, retention or detention pond, wetland
restoration facility, street signs, streetlights, trees, seeding,
sodding, tree planting, landscaping improvement, or any other public
facility or requirement of the Planning Board or any local law or
ordinance of the Town identified or characterized as a public improvement
as part of an approved plan in order to protect the public health,
safety and welfare.
A written agreement entered into between a developer and
the Town which provides a schedule for the completion of public improvements
required by the Planning Board as part of its approval and which provides
for the deposit of a certain amount of cash with the Town in escrow
to secure installation of the required public improvements.
Any written and executed guaranty, obligation or promise,
made by an owner or developer of property who has received site plan,
special use or subdivision approval from the Planning Board, to restore
a site to a safe, secure and stable condition, in the event that public
improvements have not been properly or timely completed as required
by said approval.
The estimate of the Town Engineer of the likely cost of restoring
a site which has received site plan, special use or subdivision approval
from the Planning Board to a safe, secure and stable condition, in
the event that public improvements have not been properly or timely
completed as required by said approval, based upon the nature of the
project, the nature of the required public improvements and the likely
dangers presented in the event that a project is started but not completed.
The estimate shall, initially, be made upon a worst-case-scenario
basis.
Any performance or restoration bond or bonds
that may be required by the Planning Board, Town Board or other agency
of the Town, or by any local law or ordinance of the Town, or by the
terms of any public improvement security agreement shall cover the
full amount of the performance and restoration bond estimates. The
bond shall be satisfactory in form to the Town Attorney.
[Amended 3-19-2012 by L.L. No. 2-2012]
A.
To secure installation of the public improvements or other requirements guaranteed or promised by such performance and restoration bonds, there shall be deposited with the Town Clerk, by the owner or developer, prior to the commencement of any site work, a sum of money, in cash, irrevocable letter of credit or by a good certified check payable to the Town, equal in amount to 100% of the performance and restoration bond estimates. In addition, an executed public improvement security agreement between the developer and the Town pursuant to § 57-26 or § A65-25.1, and/or any other relevant section of the Town Code or Appendix to the Town Code, shall be filed with the Town Clerk.
B.
Bond alternative.
(1)
Commencing
effective April 1, 2012, in the alternative to a letter of credit
or good certified check equaling 100% of the performance and restoration
bond estimates, for projects with public improvements whose total
cost is more than $75,000, a bond may be utilized in a form acceptable
to the Town Attorney if it meets the criteria provided for in this
section and if the Town Board finds the applicant for the project
has not, either under the name of the present applicant or under the
name of any other applicant the current applicant owns a majority
of stock in, or was a Member or officer of, an entity which defaulted
in any agreement with any county, town, village, city, or state for
the performance of improvements which would constitute public improvements
under the Town of Monroe Town Code or Appendix thereof. The Town Board
may require such proof as it deems reasonably necessary for an applicant
who wishes to utilize the provisions of this section to prove the
applicant meets such criteria.
(2)
The
bond shall be to ensure the performance of the work promised to be
performed by or on behalf of or with the consent of the property owner
where any public improvements are to be made on. Alternatively, if
it is not intended to be a performance bond, the bond shall be a restoration
bond designed to restore the site of the work to a stable, safe, and
secure status compliant with all laws, rules, and regulations, as
determined by the Town Attorney in consultation with the Town Engineer.
More than one bond may be used for any separate improvements. Each
bond shall be for a specific purpose or specific purposes and shall
inure to the benefit of the Town of Monroe. Any request to utilize
a bond under this section by an applicant for any land use approval
under consideration by the Planning Board or Zoning Board of Appeals
shall be determined by the Town Board based on the criteria provided
for herein, prior to any final approval given by the Planning Board,
upon recommendation of the Town Engineer.
(3)
The
Town Attorney, in evaluating the acceptability of the proposed bond
provided for in this section, shall be required to have, at a minimum,
a condition in the bond from the developer, for the benefit of the
Town of Monroe, requiring such work which the bond is to be posted
for, to be commenced and completed within a one-hundred-eighty-day
period unless such period is extended by the Town Board. The failure
to complete the item for which the bond is posted for authorizes such
bond to be called upon (requiring payment to the Town pursuant to
its terms of the amount of the bond or a portion thereof), unless
extended by the Town Board for such additional periods. The expiration
of a one-hundred-eighty-day period shall not prohibit the Town from
granting further extensions of up to 180 days each. In addition, where
a bond is utilized, instead of a letter of credit or good certified
check payable to the Town equal in the amount of 100% of the performance
and restoration estimates, the property owner(s) where the land use
project is located shall post with the Town an amount determined by
the Town Attorney, which shall be at least $30,000 for each project.
Said amount may be drawn upon by the Town upon written notice to the
person or entity who posted it, to pay any legal costs associated
with calling one or more bonds (securing payment from such bond or
bonds). The property owner shall agree, in posting such letter of
credit or cash deposit, that the same may be utilized, without recourse
by the property owner for any reason, by attorneys or other professionals
retained by the Town to obtain payment under one or more of the bonds
filed in association with the project. The property owner shall otherwise
agree to indemnify and hold harmless the Town for all collection costs
associated with obtaining payment under the bond or bonds, including
but not limited to legal fees. Such indemnification may, at the option
of the Town Board, require one or more personal guarantees in a form
satisfactory to the Town Attorney. At the discretion of the Town Board,
rather than such letter of credit or cash deposit being placed by
the property owner, and the guarantee described herein being made
by the property owner, it may be made by a third party.
A.
Any cash deposited under authority of this chapter
shall be deposited by the Town Supervisor in a separate interest-bearing
account in a Town depository and shall be disposed of only as herein
provided. In the event that the improvements or other requirements
guaranteed by the performance bonds are not installed or constructed
as required by the public improvement security agreement or should
a developer cease working upon any public improvement for an unreasonable
period of time thereby leaving the site in an unsafe or unsightly
condition, then, upon resolution of the Town Board and without the
necessity of further legal proceedings, said sum, together with any
accrued interest thereon, shall be withdrawn from such account by
the Town Supervisor and shall be used by the Town Supervisor toward
either the cost of satisfactorily completing the public improvements
required under the approval or the cost of restoring the site to a
safe, secure and stable condition. If there are any surplus funds
remaining after such withdrawal and expenditure, they shall be refunded
to the owner or developer, except for any portion of said deposit
held for maintenance purposes under any public improvement security
agreement.
B.
In the event that the public improvements or other
requirements are installed or completed pursuant to the public improvement
security agreement within the time provided therein to the satisfaction
of the Town Board after report by the Town Engineer and/or the Town
Superintendent of Highways, the Town Supervisor, upon resolution of
the Town Board, shall refund such sum, together with any accrued interest
thereon, to the owner or developer.
[Amended 10-21-2013 by L.L. No. 3-2013]
A.
Upon satisfactory
construction and/or installation of any public improvements required
by the Planning Board or by any local law or ordinance of the Town,
the owner or developer shall deposit with the Town an amount equal
to 10% of the original performance bond established pursuant to this
chapter as a maintenance bond. Said maintenance bond shall constitute
a guaranty or promise on the part of the owner or developer that the
public improvements so constructed and/or installed shall be free
from defects from faulty workmanship or materials and shall require
the owner or developer to repair or replace such defects for a period
of one year from the date said public improvements were accepted for
dedication by the Town Board, unless a longer period of time is mutually
agreed to by the owner or developer and the Town. The maintenance
bond shall be a cash deposit or letter of credit. In the event that
the owner or developer does not repair or replace defects in the public
improvements, the Town Board may declare said maintenance bond in
default and shall apply the bond to the cost of repairing or replacing
the same. In the event that the public improvements are properly maintained
for the maintenance bond period, the Town Board shall authorize the
release of said bond after report by the Town Engineer and/or Town
Superintendent of Highways.
B.
The owner
or developer who caused any public improvement to be installed may
apply to the Town Board to reduce the maintenance bond amount where
the improvement to be dedicated has been installed but not yet dedicated
for a period of more than one year. The Town Board may, upon such
application or on its own motion, reduce or eliminate a maintenance
bond (entirely or partially) where the Town Board, upon recommendation
of the Town Engineer finds that the improvements to be dedicated meet
acceptable standards and that the public interest favors prompt dedication
of the improvement due to any concern that the failure to dedicate
such improvement may actually cause the improvement offered for dedication
to deteriorate.
