A. Improvement Agreement and Security for Completion. When any of the required Public Improvements will be postponed and constructed after Final Plat approval and recordation, the Final Plat shall not be accepted for filing, nor shall it be approved, unless and until the Applicant enters into an Improvement Agreement of standardized format approved by the City by which the Applicant:
1. Will complete the improvements;
2. Warrants the improvements for a period of two (2) years following final acceptance by the City;
3. Provide a maintenance bond in the amount of one hundred and ten (110) percent of the costs of the improvements for such period to insure the repair and replacement of all defects due to faulty materials and workmanship that appear within the two year period following date of acceptance;
4. Provides provisions (e.g., performance and payment bonds) for securing the obligations of the agreement consistent with E below; and
5. Outlines other terms and conditions as are agreed to by the Applicant and the City, or as may be required by these Subdivision Regulations and Development Standards, including insurance requirements and covenants to comply with other ordinances of the City.
B. Agreement to Run with the Land.
1. The Improvement Agreement shall provide that the covenants and other items of agreement contained therein shall run with the land and shall bind all successors, heirs and assignees of the Applicant.
2. All existing owners shall be required to execute the agreement or provide written consent to the covenants and other items contained in the agreement.
C. Decision by the City Engineer. The City Engineer shall review the Improvement Agreement, and shall approve it, approve it with conditions, or deny it.
D. Appeal to the Council of an Improvement Agreement Decision.
1. The Applicant may appeal the City Engineer's decision on the Improvement Agreement to the City Council by submitting written notice of appeal to the City Engineer within fourteen (14) calendar days following the date of such decision.
2. The City Council shall hear and decide the appeal within thirty (30) calendar days following receipt of the notice of appeal.
3. The City Council may only overturn the City Engineer's decision upon a favorable vote of at least four (4) of the Council's voting members, and the Council's decision shall be final.
E. Security for Completion of Improvements.
1. Type of Security.
a. When any of the required Public Improvements will be constructed after approval and recordation of the Final Plat, the Applicant shall guarantee proper construction of such postponed improvements and payment of all claimants supplying labor and materials for the construction of the improvements, in accordance with the City's standards and with these Subdivision Regulations and Development Standards, by a bond executed by a surety company holding a license to do business in the State of Texas, and acceptable to the City, on the form provided by the City.
b. The performance and payment bonds shall be approved as to form by the City Attorney.
2. Estimated Cost and Security Approval.
a. Security shall be issued in the amount of one hundred and ten (110) percent of the cost to construct and complete all required Public Improvements to the City's standards as estimated by the Applicant's professional engineer, and as approved by the City Engineer.
b. Security shall be subject to the review and approval of the City Attorney.
c. The Applicant shall reimburse the City for all related legal costs for review (this reimbursement shall be paid in full prior to filing of the Final Plat).
F. Escrow Policies and Procedures.
1. Request for Escrow.
a. The City may require or the Developer may petition the City to defer required improvements in exchange for a deposit of escrow up to an amount not to exceed $15,000 for a period of two (2) years from acceptance of the project. An example may include a timing issue due to pending street improvements by another agency such as TxDOT.
b. The City Engineer may require studies and other information to support the Developer's request to escrow.
2. Escrow Deposit with the City.
a. When the City Engineer requires or agrees to accept escrow deposits, the Developer shall deposit in escrow with the City, at a financial institution to be determined by the City, an amount equal to one hundred and ten (110) percent of the total "turn-key" costs including, but not limited to, the design, permitting, acceptance, and inflation costs related to the improvement(s). The full amount of escrow shall remain deposited with the City until completion of the project.
b. The City Engineer shall review and approve the amount, which shall be approved and paid prior to recordation of the Final Plat.
3. City Usage of Escrowed Funds. The City may also use the escrowed funds in participation with another entity (such as TxDOT or the County, etc.) to jointly construct the Public Improvement(s).
4. Termination of Escrow.
a. Escrows, or portions of escrowed amounts, which remain unused after a period of ten (10) years following the date of such payment shall, upon written request, be returned to the Developer.
b. Such return of escrowed funds does not remove any obligations of the Developer for construction of the required improvement(s).
5. Refund. If all or a portion of a street or other type of Public Improvement for which escrow is deposited is constructed by a party other than the City, the remaining unused escrowed funds, upon written request shall be refunded to the Developer after completion and City acceptance of the street or Public Improvement. The City shall require thirty (30) days from the request to process the refund.
6. Interest on Escrowed Funds. When escrowed funds are returned or refunded to the escrowing Developer, the City shall retain all of the interest accrued by the funds.
7. Escrow Fee Agreement. The City Engineer, at his/her discretion, may require an escrow fee agreement be executed.
