§ 110-100. Improvement Guarantees.

(a)

Generally. An improvement guarantee to guarantee installation of all improvements required by this chapter or as a condition of approval shall be required as part of final plat approval in a form and amount approved by the Planning Commission and the County Attorney.

(b)

Guarantee amount. The amount of the improvement guarantee shall cover all construction costs, the owner's engineering and platting costs, the county's engineering and inspection costs, and preacceptance maintenance costs. The costs may be reviewed periodically for accuracy and are subject to adjustment upward or downward by the Planning Director based on existing economic conditions at the time of review and on the recommendation of the DRC. The estimated cost of the water distribution network and main extensions shall be determined by the Florida Keys Aqueduct Authority after review and approval of the water distribution system. The cost may be estimated by the developer's engineer, but in such event shall be subject to review, revision if necessary, and approval by the FKAA. The guarantee shall be in the following minimum amounts unless the owner can show that certain of the costs have already been paid:

(1)

The construction cost:

a.

130% of the estimated construction cost approved by the county engineer; or

b.

110% of a binding contract with a contractor qualified for the proposed work;

(2)

The owner's engineering and platting cost: at a cost verified by the engineer and surveyor;

(3)

The county engineering and inspection costs: based on an estimate by the county engineer of costs to be incurred;

(4)

The pre-acceptance maintenance cost: ten percent of the construction cost; and

(5)

The damage and nuisance guarantee: five percent of the construction cost.

(c)

Forms. One of the following forms of guarantee shall be submitted to the BOCC as part of an application for final plat approval.

(1)

Cash escrow.  

a.

Establishing account. An escrow account in the amount required shall be established with a federally insured financial institution (hereinafter referred to as the escrowee) in a form that meets the approval of the County Attorney. The account shall be administered by the escrowee in accordance with the provisions of the escrow agreement to be negotiated by the county and the owner, developer and/or subdivider and approved by the County Attorney. Such agreement shall contain provisions for specific application of such funds; partial contract payouts; contract retention percentages until complete; proration of reduction of deposit excess; final escrow settlement; and other pertinent administrative matters as may be required.

b.

Fund disbursement. The escrowee shall disburse funds from time to time for the purposes provided upon presentation of, and in accordance with, payouts ordered issued by the owner's engineer and approved by the county engineer. Such disbursements shall not be subject to approval or disapproval by the owner or escrowee or their agents other than the owner's engineer; however, for accounting purposes, the county shall send to the owner a copy of the approved engineer's estimate for payment at the time of county approval. Each payout order shall be accompanied by all appropriate sworn statements, affidavits and supporting waivers of lien in full compliance with state law.

c.

Excess fund balance. If, at any time, the county engineer shall notify the escrowee in writing that the balance of funds then remaining undisbursed under the escrow account is more than sufficient to cover the cost of construction fees and maintenance hereinabove provided, and the notice shall specify the reduced balance then deemed sufficient, and if the escrowee shall concur in such determination, the escrowee shall pay over to the owner any excess of funds over such reduced balance then remaining undisbursed under the escrow account.

(2)

Letter of credit. The subdivider or owner may file a straight commercial letter of credit from any financial institution acceptable to the BOCC in a form acceptable to the County Attorney. The letter of credit must provide that the issuing financial institutions will pay to the county, or as the county directs, such amounts as may be required to complete the improvements according to the approved specifications. The letter of credit shall provide that its amount will be reduced from time to time as payments for improvements approved by the county engineer are made. The letter of credit shall be irrevocable for at least 36 months from the date of final plat approval and must provide that if any balance remains at the expiration of any time limit placed on it, the balance shall be deposited with the county in a cash escrow, a new letter of credit in the amount of the unpaid balance shall be issued, or a surety bond, as prescribed in subsection (c)(3) of this section, shall be provided. The letter of credit shall also provide that ten percent of the amount shall be retained until the county engineer and the Planning Director have approved the improvements required.

(3)

Surety bond.  

a.

Form. The bond shall be in a form and with a bonding company approved by the County Attorney.

b.

Time limit. The bond shall be payable to the county and enforceable on or beyond a date 36 months from the date of final plat approval. Release of any bond shall be conditioned on final approval and acceptance of the improvements by the county.

(d)

Insufficient fund balance. If, at any time before the construction of all required improvements has been completed, the balance of funds remaining undisbursed under the escrow account or letter of credit is not sufficient, in the judgment of the Planning Director, to cover the cost of construction of the improvements and all engineering costs, including the engineering and inspection fees of the county, or if by reason of any order, decree or writ of any court, or for any other reason the funds in the escrow account are insufficient, the undisbursed balance of funds shall be withheld, shall not be diminished and shall be unavailable for the purposes provided herein, unless the owner increases the balance to such amount as shall be required by the county for such purposes, in the exercise of its judgment, or shall provide such other guarantee of performance as may be required by the county.

(e)

Time limit. All guarantees shall provide that if required improvements are not installed (i.e., construction completed) within two years after approval of the final plat, the BOCC may deem the subdivider in default and proceed in accordance with the provisions of subsection (f) of this section.

(f)

Default. In the event the Planning Director determines that the owner has failed to install proposed improvements in accordance with the approved plans and specifications or has failed to comply with the terms of the guarantees hereinabove set forth, the Planning Director, in consultation with the County Attorney, may take one or both of the following actions:

(1)

Cash escrow and letter of credit. Advise the owner, in writing, of the failure, giving the owner 30 days to cure such default. If the owner fails to cure the default, the Planning Director may recommend to the BOCC that it declare the owner in default and, upon written notification to the escrowee of such declaration of default, all moneys on deposit pursuant to the escrow agreement or letter of credit shall and may be disbursed by escrowee solely upon authorization of the Planning Director, and the escrowee shall be released by the owner as to such payment; or

(2)

Surety bond. Inform the bonding company in writing of default by the owner and request that it take necessary actions to complete the required improvements.

( Ord. No. 006-2016 , § 1(Exh. 1), 4-13-2016)