A. Performance guarantees.
(1) Types of guarantees. The applicant shall provide one of the following performance guarantees for an amount adequate to cover 110% of the total construction costs of all required improvements, taking into account the time span of the construction schedule and the inflation rate for construction costs. A performance guarantee shall not expire until released by the Town Manager. The terms shall be for a maximum of two years and shall not expire between October 31 and April 15 of the following year. The Town Manager may approve an extension of up to one year. The amount of the performance guarantee shall be reviewed for sufficiency at the time of the extension.
(a) Either a certified check payable to the municipality or a savings account or certificate of deposit naming the municipality as owner, for the establishment of an escrow account; or
(b) A performance bond payable to the municipality issued by a surety company licensed to do business in the State of Maine, approved by the municipal officers, or Town Manager; or
(c) An irrevocable letter of credit, from a bank or credit union establishing funding for the construction of the subdivision, from which the municipality may draw if construction is inadequate, approved by the Town Manager.
(d) In lieu of the furnishing of a performance guarantee before the recording of the final plan, the Planning Board may accept the agreement of the subdivider that no lot or parcel of land shall be conveyed, and no building permit for any building or portion of the development shall be issued by the Code Enforcement Officer, until the completion of required improvements. Such agreement shall be acknowledged by a note on the final subdivision plan that provides as follows: "In lieu of a performance guarantee for the construction of the project improvements, no lot or parcel of land may be conveyed, and no building permit for any building or any portion of the development shall be issued by the Code Enforcement Officer, until the completion of all streets, utilities and other required improvements in accordance with this plan and all applicable laws, ordinances and standards. If the applicant wishes to convey a lot prior to all project improvements being completed in accordance with this plan and all applicable laws, ordinances and standards, a performance guarantee equal to the cost of the remaining improvements shall first be approved by the Town Manager, in consultation with the Planning Director, and submitted to the Town." This provision shall only apply to private streets with a subdivision and shall not apply to anything proposed as a public street.
(2) Contents of guarantee. The performance guarantee shall contain the following:
(a) Construction schedule.
(b) Cost estimates for each major phase of construction taking into account inflation, provisions for inspections of each phase of construction, provisions for the release of part or all of the performance guarantee to the developer, and a date after which the applicant will be in default and the municipality shall have access to the funds to finish construction. The amount will be based upon a schedule of values maintained by the Town and based on construction costs of similar projects. The cost estimate shall be submitted in a format containing a schedule of values for each construction item. The acceptable format is available from the Town Engineer and on the Town's website.
(3) Escrow account. A cash contribution to the establishment of an escrow account shall be made by either a certified check made out to the municipality, the direct deposit into a savings account, or the purchase of a certificate of deposit. For any account opened by the applicant, the Town of Windham shall be named as owner, and the consent of the Town shall be required for any reduction in the amount of the escrow account.
(4) Performance bond. A performance bond shall detail the conditions of the bond, the method for release of the bond or portions of the bond to the applicant, and the procedures for collection by the municipality. The bond documents shall specifically reference the subdivision for which approval is sought. The applicant shall provide evidence that the surety bonding company has a minimum A rating.
(5) Letter of credit. An irrevocable letter of credit from a bank or credit union with offices in the region shall indicate that funds have been set aside for the construction of the subdivision for the duration of the project and may not be used for any other project or loan. The form of the letter of credit must be approved by the Town Manager and the Town Attorney.
(6) Phasing of development. The Board may approve plans to develop a major subdivision in separate and distinct phases. This may be accomplished by limiting final approval to those lots abutting that section of the proposed subdivision street which is covered by a performance guarantee.
(a) When development is phased, road construction shall commence from an existing public way, when available.
(b) The Board shall grant final approval of lots in subsequent phases only upon satisfactory completion of all requirements pertaining to previous phases. Evidence of satisfactory completion shall be a report from the Code Enforcement Officer or consulting engineer retained by the Town of Windham.
(7) Release of guarantee. Prior to the release of any part of the performance guarantee, the Town Manager shall determine to his/her satisfaction, in part upon the report of the Town's Engineer or other qualified individual retained by the municipality and any other agencies and departments which may be involved, that the proposed improvements meet or exceed the design and construction requirements for that portion or phase of the subdivision for which the release is requested.
(a) Performance guarantees may be reduced periodically, but in no event more than one time per month. In no case shall the performance guarantee be reduced by less than $10,000 at one time or in any line item where improvements remain to be completed. No performance guarantee shall be reduced to less than 10% of the initial performance guarantee amount. The remainder of the guarantee will be released upon satisfactory completion of the improvements.
(b) Prior to the final release of any performance guarantee, the developer shall provide to the Town of Windham a 10% as a maintenance guarantee to be held for a period of one year from the date of final paving for any streets to be offered to the Town Council for acceptance. This guarantee shall ensure the workmanship and the durability of all materials used in the construction of the roadways, curbing, esplanades, sidewalks, sanitary sewerage systems, storm drainage systems, streetlighting, tree planting, and other public improvements located within the right-of-way which may become defective within the one-year period, all as determined by the Public Works Director or Town Engineer in accordance with §
120-911M(6).
(8) Default. If, upon investigation, the Town's Engineer or other qualified individual retained by the Town finds that any of the required improvements have not been constructed in general conformance with the plans and specifications filed as part of the application, he or she shall so report, in writing, to the Code Enforcement Officer, the Town Manager, the Board, the Planner, and the applicant or builder. The Town Manager, or his designee, shall take any steps necessary to preserve the municipality's rights.
(9) Improvements guaranteed. Performance guarantees shall be tendered for all improvements required to meet the standards of these regulations and for the construction of the streets, stormwater management facilities, public or private sewage collection or disposal facilities, public water systems, and erosion and sedimentation control measures.
B. Investigation of required improvements.
(1) Notice of construction. At least 15 days prior to commencing construction of required improvements, the subdivider shall notify, in writing, the Town Planner of the time when he proposes to commence construction of such improvements so that the Town Manager and Town Planner can cause investigation to be made to observe construction of required improvements to confirm general conformance to the approved plans and specifications, and to confirm satisfactory completion of improvements and utilities required by the Board. Investigation shall be made of all required public improvements, including, but not limited to, public streets or private roads, drainage structures and ditches, erosion control measures, utilities, landscaping and recreation facilities and of all survey monuments as required by
§ 120-911A(3) of this chapter to ensure they have been placed.
(2) Construction observation fee. At least five days prior to commencing construction of required improvements, the subdivider shall pay a construction observation fee in according with the requirements of
§ 120-909: Fees. No building permits shall be issued on the project and no work begun until the inspection fee has been paid. A preconstruction meeting shall be held with Town staff prior to commencing construction.
(3) Improvements not constructed to plan. If the Town's representative shall find, upon investigation of the improvements performed before the expiration date of the performance bond, that any of the required improvements have not been constructed in general conformance with plans and specifications filed by the subdivider, he shall so report to the Town Manager, Public Works Director, Code Enforcement Officer, and Town Planner. The Town Planner shall then notify the subdivider and, if necessary, the bonding company or bank, and take all necessary steps to preserve the municipality's rights under the bond or letter of credit.
(4) Modifications to required improvements. If at any time before or during the construction of the required improvements it is demonstrated to the satisfaction of the Town Engineer that unforeseen conditions, such as encountering hidden outcrops of bedrock, natural springs, etc., make it necessary or preferable to modify the location or design of any required improvement, the Town Engineer may, upon approval of the Town Planner, authorize modifications. The modifications must be within the spirit and intent of the Board's approval and do not extend to the waiver or substantial alteration of the function of any improvements required by the Board. The Town Engineer shall issue and transmit a written authorization under this section to the Town Planner.
(5) Completion of construction of required improvements. Construction of improvements covered by any subdivision plan approval shall be completed within two years of the date upon which the performance guarantee is accepted by the Town Manager. The developer may request a one-year extension of the construction completion deadline prior to the expiration of the period. Such request shall be in writing and shall be made to the Planner. The Town Manager may require an update to the schedule of values and the amount of the guarantee when accepting an extension of the construction period. If construction has not been completed within the specified period, the Town shall, at the Town Manger's discretion, use the performance guarantee to either reclaim and stabilize or to complete the improvements as shown on the approved plan.
C. Maintenance of all improvements. The applicant shall be required to maintain all improvements and provide for snow removal on streets and sidewalks until either of the following has occurred:
(1) The legislative body accepts said improvements; or
(2) The applicant has transferred responsibility for ongoing maintenance of the improvements to a homeowners' association.
