Prior to endorsement of the definitive plan, the applicant shall
provide subdivision surety in accordance with MGL c. 41, § 81U,
Paragraph 7, and Appendix I, Forms E-1 through E-5.
All surety shall conform to the requirements of MGL c. 41, § 81U,
Paragraph 7, and Appendix I, Forms E-1 through E-5. Letters of credit
are not acceptable. The form of the surety shall be acceptable to
the Planning Board in consultation with Town Counsel and the Town
Treasurer-Collector.
A.
A covenant form of surety shall be executed by the applicant, all
owners of record and any and all mortgagees. Such covenant shall state
that the improvements shown on the definitive plan shall be completed
not later than three years from the date of the endorsement of the
definitive plan. Failure to so complete the improvements shall result
in the automatic rescission of the approval of the definitive plan
by the Planning Board, unless the Planning Board extends said period,
for good cause shown, after the written request of the applicant prior
to the expiration of said period. The covenant shall be referenced
on the definitive plan prior to recordation in the Registry of Deeds.
The applicant, after recording, shall promptly send a copy of the
covenant, showing the Registry book and page number, to the Planning
Board.
B.
All surety instruments, other than covenants not to build, shall
be accompanied by a separate surety agreement that has been executed
by the applicant, all owners of record and all mortgagees and that
shall detail the rights and obligations of the various parties and
assign the proceeds of the surety to the Town of Norwell, by and through
the Planning Board, in the event of a default and provide an easement
to the Town to allow the work shown on the endorsed definitive plan
to be performed, creating the right to perform such work, but not
an obligation. The amount of the surety instrument shall be approved
by the Planning Board and the form of the surety instrument shall
be approved as to form by the Planning Board and Town Counsel and
be acceptable to the Town Treasurer-Collector. The surety instrument
shall provide that the required improvements shown on the endorsed
definitive plan shall be completed not later than three years from
the date of the endorsement of the definitive plan. Failure to so
complete shall result in the automatic rescission of the approval
of the definitive plan by the Planning Board, unless the Planning
Board extends said period, for good cause shown, after the written
request of the applicant prior to the expiration of said period after
holding a public hearing with notice.
[1]
Editor's Note: Amendment pending.
A.
In determining the amount of the bond or surety, the Planning Board
shall be guided by the following formula in setting the sum of the
security:
(1)
The Planning Board's estimate of the cost to the Town to complete
the work;
(2)
A 50% contingency amount for work that is not performed in accordance
with the Subdivision Control Law, the Subdivision Rules and Regulations
and the conditions of definitive subdivision approval, to provide
for sufficient funds to guarantee the cost to remove deficient work
and replace it; and
(3)
An appropriate amount reflecting the rate of inflation expected
over the ensuing five-year period.
B.
The Planning Board reserves the right to increase the required amount
of surety if work is released and then later proves defective and
to demand different surety in the event of a failure of any surety
instrument (e.g., bankruptcy of a surety company or bank).
All performance bonds shall contain the following provision:
If the Principal shall fully and satisfactorily observe and
perform in accordance with the qualifications and time schedule set
forth herein specified all the covenants, agreements, terms and provisions
set forth in the following:
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1.
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The application for definitive plan approval (Form C);
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2.
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The Subdivision Control Law and the rules and regulations of
the Norwell Planning Board that govern this subdivision [dated: (insert
date: _______)];
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3.
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The decision of the Planning Board dated _______ and attached
hereto as Exhibit A; and
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4.
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The definitive plan, as approved and endorsed by the Planning
Board in the decision;
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then this obligation shall be void; otherwise, it shall remain
in full force and effect and the aforesaid sum shall be payable to
the Town of Norwell, by and through the Planning Board, as liquidated
damages in the event of a default.
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The Planning Board may require, prior to the endorsement of
the definitive plan, a supplemental covenant containing those conditions
of approval that are intended to survive the release of the surety
covenant. Such covenant shall be approved as to form by the Planning
Board and, as necessary, Town Counsel. Such covenant shall be executed
and duly recorded by all of the owners of record and any mortgagees
and shall run with the land. The covenant shall be referenced on the
definitive plan prior to recordation in the Registry of Deeds. The
applicant shall, after recording, promptly send a copy of the covenant,
showing the Registry book and page number, to the Planning Board.
A.
An applicant may substitute a new form of surety. If an applicant
desires that lots be released from a surety covenant prior to completion
of the required improvements for the lots, then the applicant shall
provide alternate surety as set forth under MGL c. 41, § 81U,
Paragraph 7, and shall send the Planning Board a formal written request
regarding the same by certified or registered mail which sets forth
and includes:
(1)
Determination of extent of work. The extent and scope of remaining
work to be completed to satisfy the requirements for the construction
or installation of all required ways and municipal services.
(2)
Estimate of cost of remaining work. An estimate, pursuant to the
Regulations, which reflects all remaining costs related to the construction
of all required ways and installation of all required municipal services.
(3)
Form and type. The form and type of guarantee proposed to be given
to the Planning Board to secure all remaining improvements.
B.
Planning Board action. The Planning Board or its agent will make
a determination as to the sufficiency of the proposed surety, and,
if acceptable, a new performance guarantee shall be given to and accepted
by the Planning Board. Upon acceptance by the Planning Board of the
new performance guarantee, all applicable lots shall be released from
the covenant.
The Planning Board may require a maintenance bond in the following
circumstances or for the following purposes:
A.
Roadways and improvements. A maintenance bond shall be required when
construction is completed or at the time of release of any performance
guarantee to ensure the maintenance of the roadways, required plantings,
utilities, and other improvements for a period of up to 20 years.
B.
Drainage systems. A maintenance bond shall be required for a period
of not less than 20 years to ensure the maintenance of any aspect
of an approved drainage system, including catch basins and detention
ponds. This requirement may be waived upon presentation of satisfactory
evidence that a homeowners' association has been created that mandates
membership by all property owners in the subdivision and that the
association is properly funded. The purpose of this requirement shall
be to prevent flooding of property and Town-maintained streets. (See
homeowners' association condition of approval.)
The penal sum of any such security, or the amount of any deposit held under § 302-10.1, may, from time to time, be reduced by the Planning Board and the obligations of the parties thereto released by the Planning Board in whole or in part. If release is by reason of covenant, a new plan of the portion to be subject to the covenant may be required in addition to all of the requirements for a covenant previously set forth.
A.
Submittal. Before the Planning Board will release subdivision surety,
the applicant shall submit written evidence that the required performance
has been satisfactorily completed or partially completed and shall
send a copy of this evidence to the Board of Health, Select Board,
Board of Water Commissioners, Conservation Commission, Drainage Committee,
Fire Department, Highway Surveyor, Planning Board, Police Department
and Tree Warden and include the following:
[Amended 5-8-2021 ATM by Art. 11]
(1)
Certification by a registered professional engineer that the
subdivision has been completed in accordance with the requirements
of the endorsed subdivision plan and the Regulations.
(2)
Certification by a registered professional engineer that the
final grading of the subdivision has been completed in accordance
with the requirements of the endorsed plan.
(3)
Certification by a registered professional engineer or a registered
land surveyor that all permanent monuments have been set in the locations
shown on the approved plan.
(4)
A letter from the Highway Surveyor indicating that he has inspected
the roadways and other required improvements and they conform to the
requirements of the endorsed plan.
(5)
A letter from the Fire and Police Departments indicating that
they have inspected the roadways and lots and that they have determined
that the signage conforms to 911 requirements.
(6)
Certification by the applicant that all required easements have
been recorded and the recorded instrument delivered to and accepted
by the homeowners' association and/or the Planning Board or other
interested Town agency, as appropriate.
(7)
A letter from the Water Department that the water supply has
been properly provided.
B.
Release or partial release of surety. If the Planning Board determines
that said construction and installation have been completed or partially
completed in the proper manner as required under the Subdivision Control
Law, the Regulations and conditions of approval, it shall release
or partially release said security or bond or deposit and shall return
the same to the depositor, or release or partially release the subdivision
covenant by appropriate instrument that shall be duly acknowledged
and which may be recorded.
C.
Denial of release. If the Planning Board determines that the construction
or installation has not been completed to its satisfaction and it
receives written statement under MGL c. 41, § 81U, Paragraph
10, from the applicant, it shall, within 45 days of the receipt of
said statement, specify to the applicant, in writing, the details
wherein said construction and installation fail to comply with the
Regulations and shall file a copy of the same with the Town Clerk
and deny the request for release.
