Fulton Maintenance guarantee ordinance (§ 102-86)

(a) Conditional acceptance.

(1) Prior to the city accepting dedication and ownership of subdivision capital improvements or facilities intended to be dedicated to and owned by the city (including but not limited to street pavement, curbing, guttering, storm sewers, sanitary sewers, and potable water distribution lines and facilities), as well as stormwater detention and management facilities, the subdivider shall:

a. Provide the city council with a written certification signed and sealed by a professional engineer licensed to practice engineering in the State of Missouri, attesting that subdivision capital improvements sought to be dedicated to the city have been constructed and installed in compliance with this chapter, the building code, and the other codes and ordinances of the city applicable thereto; and

b. Provide to the city clerk a maintenance guarantee in compliance with the requirements of this chapter, as hereinafter made and provided for.

(2) Notwithstanding anything contained in this chapter to the contrary, acts of maintenance by the city on subdivision capital improvements to be dedicated to and owned by the city shall not be construed or deemed to be or constitute acceptance of ownership of and the future maintenance responsibility for the capital improvements. "Acts of maintenance" with regard to streets may include, but are not limited to snow removal, street sweeping, payment of energy charges on streetlights, and installation and repair of street signs. Acceptance of city ownership of and the maintenance responsibility for subdivision infrastructure capital improvements shall be by enactment of an appropriate ordinance by the city council and delivery to the city of a good and sufficient bill of sale for the capital improvements by the subdivider.

(b) Maintenance guarantee form. The maintenance guarantee to be provided to the city by the subdivider shall be in the form of an irrevocable letter of credit, an insurance bond, or escrow agreement. With regard thereto the following shall apply:

(1) To be an acceptable maintenance guarantee, a letter of credit must be issued by a financial institution acceptable to the city's chief financial officer which is in good standing and authorized to do business in the State of Missouri; an insurance bond must be issued by an insurance company acceptable to the city which is in good standing and authorized to do business in the

State of Missouri; and an escrow agreement must be for a cash escrow established at a financial institution approved by the city making funds readily available for use by the city in the event of the default of performance by the subdivider.

(2) The maintenance guarantee shall be in an original principal sum equal to 25 percent of the cost to construct the capital improvements to be dedicated to the city, as determined by an independent third party as selected by the city.

(3) The maintenance guarantee shall be in a form acceptable to the city attorney and shall be in force for the period of two years from the date of the city's acceptance of the capital improvements secured by the maintenance guarantee. Not less than 60 days prior to the expiration of the maintenance guarantee, the surety on the maintenance guarantee (financial institution issuing the letter of credit, insurance company issuing the bond or the escrow agent on the escrow agreement) shall notify the city clerk, by registered mail, return receipt requested, of the impending expiration date. The maintenance guarantee shall so state. Failure to give the required notice shall extend the expiration date of the maintenance guarantee so that under no circumstances shall the maintenance guarantee expire until 60 days after the city's receipt of said written notice of expiration.

(4) If at any time during the guarantee period the capital improvements accepted by the city are found by the city to need repair or replacement, due to any cause whatsoever, the subdivider shall repair or replace the same, within such reasonable time as the city shall require, in compliance with the applicable city codes and ordinances.

(5) In the event it is necessary for repairs or replacements of capital improvements to be made during the effective term of the maintenance guarantee, the maintenance guarantee shall only be released by the city council upon final inspection and approval of the repairs or replacements by the city engineer or designee. Release of the maintenance guarantee shall be by enactment of an appropriate ordinance or resolution by the city council. It shall be the responsibility of the subdivider to request final inspection of repairs or replacements made to capital improvements secured by a maintenance guarantee within 60 days of their completion, but in all cases not less than 30 days before the end of the term of the maintenance guarantee. Failure to give that notice shall extend the term of the maintenance guarantee to not less than 60 days after the date of delivery of the notice to the city.