[HISTORY: Adopted by the Town Board of the Town of Monroe 12-4-2000 by L.L. No. 6-2000. Amendments noted where applicable.]
Editor's Note: This local law repealed former Ch. 36, Performance Bonds, adopted 7-7-1969 by L.L. No. 1-1969, as amended. It also stated that it superseded § 277, Subdivision 9, of the Town Law of the State of New York.
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.
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.
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.
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.
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.
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.
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.
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.
- MAINTENANCE BOND
- 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.
- 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 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.
- PERFORMANCE BOND ESTIMATE
- 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.
- PLANNING BOARD
- The Planning Board of the Town.
- PUBLIC IMPROVEMENT
- 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.
- PUBLIC IMPROVEMENT SECURITY AGREEMENT
- 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.
- 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 public improvements have not been properly or timely completed as required by said approval.
- RESTORATION BOND ESTIMATE
- 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]
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.
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.
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.
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.
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.
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]
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.
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.