[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.]
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.
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.
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) 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.
Editor's Note: See Article 8 of the Environmental Conservation Law.
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.
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.
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.
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.
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.
- DEVELOPER'S AGREEMENT
- 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.
- MAINTENANCE BOND
- 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.
- PERFORMANCE BOND
- 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.
- PERFORMANCE BOND ESTIMATE
- 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.
- PLANNING BOARD
- The Planning Board of the Village of Woodbury.
- RESTORATION BOND
- 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.
- RESTORATION BOND ESTIMATE
- 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.
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:
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.
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:
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.
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.
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.
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.
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.
The release of bonds shall in no way be construed as acceptance of any street, drainage system or other improvement.
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.
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.