§ 35-437. Performance Agreement.

When site improvements, other than gas and electric lines, are required in conjunction with a plat, a performance agreement to ensure construction of the site improvements shall be executed by the applicant and filed with the planning commission together with the plat. Such instrument shall be substantially the same as form "F" in Appendix "B," section 35-121 and shall be filed with the City of San Antonio when a guarantee of performance is required. A request for an extension of time for plat recordation shall include a request for an extension of the performance agreement.

(a)

Guarantee of Performance. As is provided for in subsection 35-432(i), an approved plat may be filed for record before the required site improvements are completed if one (1) of the following guarantees of performance is approved and filed with the City of San Antonio within three (3) years after the plat has been approved by the planning commission: a performance bond, an irrevocable trust agreement, an irrevocable standby letter of credit, or a cash or cashier's check. A guarantee of performance may be submitted before plat approval; however, for plat recordation the plat must meet the requirements of this section. In no event shall an applicant self-insure, notwithstanding that the applicant is a surety company, trust institution, or bank. All site improvement estimates submitted to the director of development services shall detail the specific improvements needed, and shall bear the official seal and signature of a professional engineer attesting to the accuracy of the dollar amounts contained in the estimate. Any guarantee submitted shall clearly state the procedure and complete contact information for collection should a claim or draw be necessary, and shall cover the time period from submittal and approval to three (3) years, or three (3) years and ninety (90) days in the case of a letter of credit, from the date of plat approval.

(1)

Performance Bond. A single performance bond shall be executed by a surety company licensed in the State of Texas and listed at the time of bond submission on the Department of the Treasury's Listing of Approved Sureties as a certified company. The amount shall equal the cost estimate, as approved by the director of development services, of all uncompleted and unaccepted improvements required by these regulations (other than gas and electric lines), with the condition that the subdivider shall complete such improvements and have them pass a final inspection by the director of development services, within three (3) years from the date of plat approval, or shall have received an approved extension at least thirty (30) days prior to the expiration of the performance bond. A performance bond must be claimable through a Texas office designated on the bond and shall be substantially in the same form as form "H" set out in Appendix "B," subsection 35-B121. The director of development services is authorized to sign the bond instrument on behalf of the city and the city attorney shall approve the same as to form prior to acceptance of the performance bond.

(2)

Irrevocable Trust Agreement. The subdivider shall cause to be placed in a trust account on deposit with a "Trust Institution", as defined by the Texas Finance Code, Title 3. Financial Institutions and Businesses, that is licensed to do business in the State of Texas, (specifically, a bank, trust company, savings bank, savings association or credit union as selected by the subdivider and approved by the director of development services) a sum of money equal to the cost estimate, as approved by the director of development services, of all uncompleted and unaccepted site improvements (other than gas and electric lines) required by these regulations. The trust account must be drawable in Texas and shall be established by agreement which shall be substantially in the same form as form "J" set out in appendix "B", subsection 35-B121. The director of development services is authorized to sign the agreement on behalf of the city and the city attorney shall approve same as to form.

(3)

Irrevocable Standby Letter of Credit. The subdivider shall provide a single irrevocable letter of credit issued by a bank licensed to do business in the State of Texas in an amount equal to the cost estimate, as approved by the director of development services, of all uncompleted and unaccepted site improvements (other than gas and electric lines) required by these regulations. The letter of credit must be drawable through a Texas office, state that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the letter of credit, and shall be substantially in the same form as form "K" set out in Appendix "B," subsection 35-B121(f). The director of development services is authorized to sign the agreement on behalf of the city and the city attorney shall approve same as to form prior to acceptance of the letter of credit.

(4)

Cash or Cashier's Check. The subdivider shall provide to the city cash or a cashier's check in an amount equal to the cost estimate as approved by the director of development services, of all uncompleted and unaccepted site improvements (other than gas and electric lines) required by these regulations. Such cash or cashier's check shall be deposited and handled as per city policy. The cash or cashier's check shall be submitted along with a cash performance deposit instrument. Such instrument shall be substantially in the same form as form "W" set out in Appendix "B," subsection 35-B121. Upon completion of the required improvements and the site improvements passing inspection by the director of development services, the amount will be refunded to the subdivider by the city.

(b)

Substituting Guarantees. When a subdivider has given security in any of the forms hereinabove provided, and fifty (50) percent of the required site improvements have been completed and approved in writing by the director of development services, the subdivider may substitute for the original guarantee, a new single guarantee in an amount equal to the cost of the remaining site improvements. The cost estimate shall be approved by the director of development services. Such new guarantee need not be in the same form as the original guarantee so long as such guarantee is one that is listed in subsection (a). However, in no event shall the substitution of one security for another in any way change or modify the terms and conditions of the performance agreement or the obligation of the subdivider as specified in the performance agreement. Additionally, a guarantee (not including irrevocable trust agreements) may not be substituted more than two (2) times (not to include a one-time substitution approved by the director of development services upon the granting of a time extension) and in no event shall the amount of a substituted guarantee be less than ten (10) percent of the total amount of the original guarantee amount. For irrevocable trust agreements, subdivider may withdraw from the irrevocable trust amount when fifty (50) percent or more of the remaining cost estimate has been completed and approved in writing by the director of development services. Subdivider may not withdraw more than four (4) times (not to include a one-time substitution approved by the director of development services upon the granting of a time extension) during the life of the irrevocable trust. In no event shall the amount of the irrevocable trust be less than twenty (20) percent of the total amount of the original cost estimate until all improvements have been completed and approved.

(c)

Supplementary Guarantees. Supplementary guarantees may be required as follows:

(1)

Renewal. Until the expiration of the three-year period from the date of plat approval, the director of development services, shall periodically review the estimated cost of completing such site improvements as are not then completed and determine the adequacy of the existing performance guarantee. Should the director of development services, determine that the sum set out in the performance guarantee is inadequate to provide for the completion of the uncompleted site improvements, he or she shall require a substitute guarantee to cover the newly estimated cost or a supplemental guarantee to cover the additional sum needed for completion.

(2)

Performance Guarantee. If a subdivider submits an original performance guarantee after a period of two (2) years has elapsed from the date on which a plat was approved by the planning commission, the actual cost estimate of completing the uncompleted site improvements shall be increased by an amount, based upon a locally recognized construction cost index as approved by the director of development services, required to cover an estimated inflationary increase in the cost during the duration of the period covered by the performance guarantee.

(3)

Failure to Provide Guarantee. Should the subdivider fail to provide the necessary additional substitute guarantee within thirty (30) days of a request for same by the director of development services, the director of development services shall refuse to accept from such subdivider a performance agreement or guarantee under any form which is related to a plat subsequently filed in which such subdivider has an interest.

(d)

Release Upon Completion of Site Improvements. Upon completion of the required site improvements and final inspection by the director of development services, and county engineer if the site is located in the extraterritorial jurisdiction of the city, an instrument releasing the applicant from the provisions of the performance agreement and the performance guarantee shall be filed with the City of San Antonio. Such release shall be substantially the same as form "L" in appendix "B", subsection 35-B121. If a warranty bond is required under subsection 35-501(h), release of any performance bond is conditioned upon acceptance of such warranty bond. If the necessary permits required to complete the site improvements (including, but not limited to, floodplain development permits) are denied by the city and are no longer required to serve the lots within the subdivision, the director of development services shall approve and release the performance agreement and guarantee as provided herein.

(e)

Site Improvement Time Extensions. Time extensions for an approved and filed guarantee of performance may be granted by the director of planning and development services or the planning commission as provided under section 35-430(f)(2) (performance agreement and site improvement time extension granted by director of planning and development services or planning commission).

(f)

No Third Party Beneficiaries Intended. It is the intention of the City of San Antonio that submitted and approved guarantees are limited to a contract between the city and the applicant for the express purposes of providing protection for the citizens of San Antonio, eliminating conditions which could become public nuisances, and ensuring compliance with the Unified Development Code. It is not intended that this security be available for payment of subcontractors or material suppliers in the nature of a payment bond, or that the security provided become available to the purchasers of property to correct construction flaws or defects which are the fault of a previous owner.

(Ord. No. 96564 § 1) (Ord. No. 98697 § 1 and 6) (Ord. No. 99795) (Ord. No. 2009-01-15-0001, § 2, 1-15-09) (Ord. No. 2010-11-18-0985, § 2, 11-18-10) (Ord. No. 2012-10-18-0829, § 2, 10-18-12; Ord. No. 2015-12-17-1077 , § 2, 12-17-15)