Bar Harbor City Zoning Code
ARTICLE IX
Performance Guarantees
§ 125-93 Required improvements.
[Amended 6-8-2010]
A.
Applicants whose developments are subject to site plan or subdivision review shall provide performance guarantees sufficient to ensure the completion of the following improvements in the Town's rights-of-way, easements or property:
(1)
Monuments required by § 135-69N(1);
(2)
Planting, buffering or screening required by § 125-67E(12) and H or 125-69L(6);
(3)
Street signs;
(4)
Streets;
(5)
Sidewalks;
(6)
Water supply facilities, including fire hydrants or ponds;
(7)
Sewage disposal facilities;
(8)
Stormwater drainage facilities;
(9)
Utilities;
(10)
Restoration of mining sites pursuant to § 125-69L(5).
B.
Performance guarantees may also be used for improvements on private property. An applicant may request permission to provide a performance guarantee to assure that all terms, conditions and plans approved by the Planning Board, the Design Review Board, the Board of Appeals, or the Planning Department will be constructed within a year of the lawful issuance of an occupancy permit. Said permission shall be reviewed by the permitting authority and as required in this article.
§ 125-94 Contents of guarantee.
A performance guarantee shall contain a construction schedule, 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 developer will be in default and the Town shall have access to the funds to finish construction. The conditions and amount of a performance guarantee shall be determined by the Planning Board with the advice of the Public Works Director, the Town Council and/or the Town Attorney. In establishing the amount of a performance guarantee, the Town may seek independent verification of the accuracy of the developer's cost estimates or may set the amount in accordance with the amount of the contract between the developer and the contractor who will be installing the required improvements. The amount of a performance guarantee shall be adequate to cover the entire construction costs of all required improvements, taking into account the proposed time span of the construction schedule and the inflation rate for construction costs.
§ 125-95 Types of guarantees.
A performance guarantee may take any one of the following forms:
A.
Escrow account. A cash contribution to the establishment of an escrow account may be made by either a certified check made out to the Town, the direct deposit into a savings account, or the purchase of a certificate of deposit. For any account opened by the developer, the Town shall be named as owner and the consent of the Town shall be required for a withdrawal. Any interest earned on the escrow account shall be returned to the developer unless the expenditure of the interest by the Town is necessary in order to complete the required improvements.
B.
Performance bond. A performance bond, issued by a surety company approved by the Town Council or the Town Manager, may be made payable to the Town. A performance bond shall detail the conditions of the bond, the method for release of the bond or portions of the bond to the developer, and the procedures for collection by the Town. The bond documents shall specifically reference the development for which approval is sought.
C.
Irrevocable letter of credit. An irrevocable letter of credit, issued by a financial institution approved by the Town Council or the Town Manager, may establish funding for the development from which the Town may draw if construction is inadequate. An irrevocable letter of credit shall indicate that funds have been set aside for the construction of the development and may not be used for any other project or loan.
D.
Conditional agreement. In the case of a subdivision, the Planning Board, at its discretion, may provide for the developer to enter into a binding agreement with the Town in lieu of other performance guarantees. Such an agreement shall provide for approval of the final plan on the condition that no lots may be sold or built upon until either:
(1)
It is certified by the Planning Board, or its agent, that all of the required improvements have been installed in accordance with this chapter and the regulations of the appropriate utilities; or
(2)
A performance guarantee, acceptable to the Town, is submitted in an amount necessary to cover the completion of the required improvements at an amount adjusted for inflation and prorated for the portions of the required improvements already installed. Notice of the agreement and any conditions shall be on the final plan which is recorded at the Registry of Deeds.
§ 125-96 Release of guarantee.
Prior to the release of any part of a performance guarantee, the Town Manager shall determine to his/her satisfaction, in part upon the report of the Code Enforcement Officer, his/her designee, and whatever other agencies and departments may be included, that the completed improvements meet or exceed the design and construction standards for that portion of the improvements for which the release is requested.
§ 125-97 Default.
If, upon inspection, the Code Enforcement Officer or his/her designee finds that any of the required improvements have not been constructed in accordance with the plans and specifications filed as part of the application, he/she shall so report in writing to the municipal officers, the Planning Board, and the developer. The municipal officers shall take any steps necessary to preserve the Town's rights.
§ 125-98 Plant maintenance guarantees.
In addition to any performance guarantee provided pursuant to § 125-93, an applicant shall furnish to the Town security equal to at least 10% of the value of all live plantings required by § 125-67E(12) and H or 125-69L(6). Such security shall be binding for a minimum of three years and shall be subject to the condition that required live plantings be maintained in accordance with the terms of the approved plan and in a good and healthy condition.