[HISTORY: Adopted by the Board of Trustees
of the Village of Woodbury 8-12-2008 by L.L. No. 6-2008. Amendments noted where
applicable.]
A.
Intent. It is the intent of this chapter to provide
for orderly development and for the general health, safety and welfare
of the residents of the Village of Woodbury by establishing a procedure
to guarantee improvements shown on approved subdivisions and site
plans will be completed satisfactorily. The intent of requiring performance
guarantees from developers is to protect the Village and its residents
from the failure of developers to complete needed infrastructure shown
on approved plans or otherwise required by law. The intent of the
Village Board is to provide a flexible means of bonding through completion
of infrastructure or bonding improvements coupled with phasing limitations
for larger developments to enable the Village to be developed in a
more orderly fashion. The intent of the Village Board is to establish
a procedure for bonding that will protect the Village and its residents
while still providing an attractive and competitive environment for
developers, thereby encouraging high-quality development with a variety
of housing opportunities for the Village's residents.
B.
Findings.
(1)
The Village Board believes security for project completion
of public and private improvements should be posted at the outset
of the development and that a substantial portion of any bond posted
shall be in the form of cash. Under such an arrangement, the Village
and its residents will be best protected from the project beginning
and will have substantial cash to complete installation of essential
portions of such improvements without the necessity of legal proceedings
to enforce a performance bond. Consequently, a cash portion of 25%
of the development should be sufficient to protect the Village in
most cases with the umbrella of a surety bond protecting the remainder.
(2)
The Village Board believes that the bonding of projects
should be coupled with appropriate phasing as determined by the Planning
Board through the State Environmental Quality Review Act (SEQRA)[1] review process. The purpose of phasing is to avoid accelerated
development of residential units greatly exceeding the capacity of
the developer's infrastructure to protect the site and adjacent area.
[1]
Editor's Note: See Article 8 of the Environmental
Conservation Law.
(3)
The Village has no ability, short of completing site
improvements itself, to adequately safeguard project sites where developers
fail to complete required improvements even when financial security
is in place. The Village has no desire to act as a developer but does
desire to return uncompleted project sites to a safe, secure and stable
condition. In the case of site plans, where improvements are for the
use of the public but are to remain private and large portions of
the site are to be disturbed, the Village Board believes a more meaningful
bonding requirement at the initial stages of construction is through
a restoration bond. This is simply intended to guarantee the site
can be restored to a stable condition should the developer fail to
complete the work. Under such a failure, the Village would have no
interest in completing the site plan work; it would just need to stabilize
the site and make it as free of safety issues as is reasonably possible.
Although phasing should protect the Village for subdivisions, restoration
bonds might also apply to subdivisions on some occasions as determined
by the Planning Board through the SEQRA process.
(4)
Finally, the Village Board believes all improvements,
i.e., improvements necessary to protect the health, welfare and safety
of the residents of the Village of Woodbury, should be subject to
the same procedures and should require the same financial security.
C.
Determinations.
(1)
It is the determination of the Village Board that,
where infrastructure improvements are not completed prior to the issuance
of building permits, the projected cost of all improvements must be
fully secured by either cash, letter of credit or by a combination
of these with a performance guarantee issued by a surety company in
the amounts and forms described in detail in this chapter. Additionally,
a portion of that security or substitute security should be held for
a reasonable period to insure proper maintenance of improvements from
hidden or latent defects appearing within a reasonable time.
(2)
Furthermore, it is the determination of the Village
Board that, where the improvements are not properly or timely completed,
authorization from the Board of Trustees is needed to use the financial
security posted by that developer to either complete the improvements
or to safeguard the site and protect the health, welfare and safety
of the residents of the Village.
(3)
It is the further determination of the Village that,
to protect the public interest, developers may be required to enter
into agreements with the Village which shall identify improvements,
provide a schedule for completion, provide appropriate financial security
and provide for the Village to complete the improvements, or provide
appropriate safeguards at the project site, pursuing either alternative
should a developer fail to timely or properly complete such improvements.
For the purpose of this chapter, the following
terms shall have the meanings indicated:
Any applicant, builder, or developer seeking site plan, special
use or subdivision approval or implementation of an approved plan
secured by others. This may be the owner, contract vendee, managing
agent, etc., and shall include the agents of applicants and all successors
in interest.
A written agreement entered into between a developer and
the Village which provides a schedule for the completion of any improvements
required by the Planning Board as part of its approval and which provides
for the deposit of a certain amount of performance security with the
Village in escrow to secure installation of such required improvements.
Any street, roadway, curb, gutter, sidewalk, parking lot,
retaining wall, water main, fire hydrant, sanitary pipe, 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, survey monuments,
or any public facility or requirement of the Planning Board or any
local law or ordinance of the Village identified or characterized
as an improvement for public use as part of an approved plan in order
to protect the public health, safety and welfare, or any other improvement
required as part of an approved plan.
Any written and executed guaranty, obligation or promise
to maintain, repair or replace any improvement previously installed
or constructed within a fixed period of time from the date when such
public improvements were accepted for dedication by the Village, or
if the improvements are to remain under private ownership, when they
were deemed complete by the Village Engineer, whether made by a surety
or bonding company, a developer or any other third party.
The owner of any real property located within the Village
that is the subject of a performance bond required by any local law
or ordinance of the Village.
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
improvements required by the Planning Board or to perform other required
acts that may be required by the Planning Board pursuant to plan approval,
Village Board or any local law or ordinance of the Village.
The estimate of the Village Engineer of the full costs of
the installation of such improvements or requirements guaranteed or
promised by the performance bond, including any safety factors applicable
under this chapter.
The Planning Board of the Village of Woodbury.
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 improvements
have not been properly or timely completed as required by said approval.
The estimate of the Village 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 improvements have not been properly or timely completed,
based upon the nature of the project, the nature of the required improvements
and the likely dangers presented in the event a project is started
but not completed. The estimate shall be based on a worst-case scenario.
A.
The following is a general list of improvements for
standard subdivision and site plans which identifies the improvements
which shall be permitted to be constructed after certificates of occupancy
have been issued:
|
No.
|
Item Description
|
Prior to Certificates of Occupancy
|
After Certificates of Occupancy Issued
| |
|---|---|---|---|---|
|
1
|
Mobilization and general conditions
|
X
| ||
|
2
|
Clearing site/demolition
|
X
| ||
|
3
|
Excavation
|
X
| ||
|
3A
|
Roadway excavation (existing road)
|
X
| ||
|
3B
|
Roadway excavation (new road)
|
X
| ||
|
3C
|
Parking lot excavation
|
X
| ||
|
4
|
Class I roadway
| |||
|
4A
|
Subbase
|
X
| ||
|
4B
|
Base course
|
X
| ||
|
4C
|
Top course
|
X
| ||
|
4D
|
Parking lot
|
X
| ||
|
4E
|
Striping
|
X
|
X (with temporary)
| |
|
5
|
Storm drainage
| |||
|
5A
|
Drainage pipe and culverts
|
X
| ||
|
5B
|
Drainage inlets
|
X
| ||
|
5C
|
Sedimentation basin
|
X
| ||
|
5D
|
Soil erosion control
|
X
| ||
|
6
|
Sanitary sewer
| |||
|
6A
|
Gravity sanitary sewer
|
X
| ||
|
6B
|
Sewer force main
|
X
| ||
|
6C
|
Sewer service connections
|
X
| ||
|
6D
|
Sewage pump station
|
X
| ||
|
6E
|
Treatment plant improvements
|
X
|
X (punch list)
| |
|
7
|
Manholes and inlets
| |||
|
7A
|
Precast sanitary/storm manholes
|
X
| ||
|
7B
|
Reset inlets and manhole covers
|
X
| ||
|
8
|
Water service
| |||
|
8A
|
Water main and valves
|
X
| ||
|
8B
|
Hydrant installations
|
X
| ||
|
8C
|
Water service connections
|
X
| ||
|
8D
|
Water treatment plant improvements
|
X
|
X (punch list)
| |
|
9
|
Landscaping
| |||
|
9A
|
Topsoil and seed
|
X
| ||
|
9B
|
Shade trees
|
X
| ||
|
9C
|
Other landscaping
|
X
| ||
|
10
|
Concrete curb
|
X
| ||
|
11
|
Sidewalk
|
X
| ||
|
12
|
Guide rail
|
X
| ||
|
13
|
Streetlighting
|
X
| ||
|
14
|
Monumentation
|
X
| ||
|
15
|
Cleanup and demobilization
|
X
|
B.
Notwithstanding the above general list, the Code Enforcement
Officer, with the advice of the Village Engineer, may refuse the issuance
of certificates of occupancy if, in his opinion, a safety hazard would
be created.
A.
The developer shall complete all required improvements
or post the required performance bond before any building permits
for dwellings will be issued. The performance bond shall be delivered
to the Village, conditioned that the developer will faithfully cause
to be constructed and completed within a reasonable time the required
improvements and, if the improvement is for the public's use and benefit,
convey the required lands and improvements to the Village free and
clear of encumbrances. Any performance or restoration bond required
shall cover the full amount of the performance and restoration bond
estimates as more precisely set forth below. All improvements shown
on the approved site plan or subdivision plat or required by law shall
be provided in a complete and safe manner and shall be secured through
the performance bond. Restoration bonds shall be provided for site
plans and for any other projects, including subdivisions. Bonds shall
secure installation of the improvements or other requirements guaranteed
or promised by such performance and restoration bonds. The bond shall
be satisfactory in form to the Village Attorney and with surety acceptable
to the Village Board. At least 25% of the bond amount shall be in
cash or its equivalent. There shall be deposited with the Village
Clerk, by the owner or developer, prior to the issuance of a building
permit for any site work, a performance guarantee which shall be either
all cash, irrevocable letter of credit or certified check payable
to the Village, or a surety or bonding company having a minimum rating
of "A" by A.M. Best or a similar credit rating agency, for 75% of
the bond, with the remainder in cash. The amount of the bond shall
be based on an estimate of the work as prepared by the Village Engineer,
which shall be increased by a multiplier as provided in the following
schedule:
|
Engineer's Estimate
|
Multiplier
|
Bond Amount
| |
|---|---|---|---|
|
$0 to $100,000
|
2.0
|
Up to $200,000
| |
|
$100,001 to $500,000
|
1.5
|
Up to $750,000
| |
|
Greater than $500,000
|
1.3
|
From $650,000
|
B.
The first 25% of the bond shall be in the form of
cash, with a minimum of $20,000 to be posted with the Village Board
and the balance of the performance or restoration bond secured by
the developer in a form approved by the Village Board and the Attorney for the Village with a surety or bonding company, having a
minimum rating of "A" by A.M. Best or a similar credit rating agency
or its equivalent of marketable securities guaranteeing final completion
of the required improvements. The duration of the bond shall be determined
by the Village Engineer and Code Enforcement Officer, which performance
bond shall be reviewed on the anniversary date each year to determine
whether or not there is a sufficient amount in the bond to complete
the infrastructure. Where the bond is insufficient due to an increase
in the cost of completing the improvements, then the developer shall,
prior to the issuance of any additional certificates of occupancy,
increase the performance bond to guarantee the completion of the improvements
that are the subject matter of the punch list prepared by the Code
Enforcement Officer and the Village Engineer. At the time of submission,
a W-9 form must be submitted to the Building Department.
C.
Developer's agreement. In addition to the security,
an executed developer's agreement shall be filed with the Village
Clerk, if the Village Board believes such agreement would be in the
Village's interest considering the nature and scope of the project.
A.
Any cash deposited under authority of this chapter
shall be deposited by the Mayor in a separate interest-bearing account
in a Village 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 this chapter or a developer's agreement or should a developer cease
working for an unreasonable period of time, thereby leaving the site
in an unsafe or unsightly condition, then, upon resolution of the
Village Board and without the necessity of further legal proceedings,
said cash sums, together with any accrued interest thereon, shall
be withdrawn from such account by the Mayor and shall be used by the
Mayor toward either the cost of satisfactorily completing the improvements
required under the approval or the cost of restoring the site to a
safe, secure and stable condition. If the cash funds are insufficient,
the Village may seek recourse from the security or may seek such action
first or simultaneously, as the Village deems most appropriate to
protect the health, safety and welfare of the Village and its residents.
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 improvement security agreement.
B.
Upon completion of the infrastructure improvements,
the developer shall notify the Mayor, with a copy to the Village Engineer.
Within 15 working days of receipt of the notice, the Village Engineer
shall inspect the improvements and within a reasonable time thereafter
file a written report with the Village Board, indicating approval,
partial approval or rejection of the improvements, with a statement
of the reasons for any rejection. The required improvements shall
not be considered to be complete until installation of the improvements
have been approved by the Village Engineer and an as-built map, satisfactory
to the Village Board and Planning Board, has been submitted indicating
the location of monuments marking all underground utilities as actually
installed.
C.
The Village Board shall approve, partially approve
or reject the improvements on the basis of the report from the Village
Engineer and shall notify the developer, in writing, of the Engineer's
report and the action of the Village Board not later than 90 days
after receipt of the notice from the developer of the completion of
the improvements.
D.
The release of bonds shall in no way be construed
as acceptance of any street, drainage system or other improvement.
E.
Maintenance bond. Upon satisfactory completion of
the improvements required by the Planning Board or by any local law
or ordinance of the Village, the owner or developer shall make a cash
deposit with the Village in an amount equal to 10% of the original
performance bond established pursuant to this chapter as a maintenance
bond. This maintenance bond shall constitute a guaranty that the improvements
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 the improvements were accepted
for dedication by the Village Board, or if the improvements are to
remain under private ownership, from the date they were deemed complete
by the Village Engineer, unless a longer period of time is mutually
agreed by the owner or developer and the Village. 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, the Village
Board may declare the maintenance bond in default and apply the bond
to the cost of repairs or replacement. In the event the improvements
are properly maintained for the maintenance period, the Village Board
shall authorize the bond released after a report by the Village Engineer
and/or Superintendent of Highways.
F.
Improper installation of improvements. If the Village
Engineer finds deficiencies in the improvements before the expiration
date of the performance and/or maintenance bonds, demonstrating the
improvements have not been constructed in accordance with plans and
specifications, he shall first report his findings to the developer,
with a copy to the Village Board, giving a reasonable time for the
developer to remedy such defects; and lacking a satisfactory and prompt
resolution of the problem, he shall report his findings to the Village
Board. The Village Board shall then notify the developer and, if necessary,
the bonding company. The Village Board may declare the performance
bond in default and collect the sum payable and install the deficient
improvements covered by the bond, but not exceeding the amount of
such proceeds. The Planning Board shall approve no plat so long as
the developer or a principal in a developer's corporation is in default
on a previously approved plat.
