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CHAPTER.7Chapter 7 SURETY Art. I. In General ARTICLE I. IN GENERAL Sec. 1. Purpose. This policy delineates specific criteria and prerequisites for accepting surety by the city in conjunction with developer agreements, contracts, development related improvements and any other contractual obligations. Sec. 2. Applicability. A. When Required. Wherever surety is required within the Boynton Beach Code of Ordinances and/or Land Development Regulations it shall be provided in the form and manner prescribed in Section 3 hereinafter. The type of surety shall be determined by the administrator of the code section involved, and shall be acceptable to the Boynton Beach city attorney and City Commission. B. Amount. The amount of surety shall be equal to or greater than 110% of the total obligation whether it be for restoration, abatement, maintenance, guarantee, fees in lieu of land dedication, required improvements or any other purpose. C. Periodic reduction of surety. From time to time during progress of the work the developer may request that the city engineer reduce the dollar amount of the surety on the basis of work completed, but in every case the remaining funds shall be sufficient to complete the obligation. In the case of surety for required improvements associated with subdivision development, five (5) per cent of the engineer's certified cost of required improvements shall be retained for one (1) year after acceptance of such improvements by the City Commission as a guarantee against defects in workmanship and material. The final release in surety of the remaining balance of the surety, by letter of credit or other instrument, shall be approved by motion or resolution of the City Commission, with the recommendation by the appropriate department and/or the city engineer. D. Default. In the event of default by the developer or failure of the developer to complete the obligations within prescribed time limits, the city, after thirty (30) days written notice to the developer, shall cash the surety to insure satisfactory completion of the obligations. (Ord. No. 02-033, §§ 3, 4, 8-20-02) Sec. 3. Types of surety. A. LETTERS OF CREDIT. 1. The face of the letter of credit must indicate the following: a. The letter of credit is "clean". b. The letter of credit is irrevocable and shall remain enforceable until released by a resolution adopted by the City Commission, or until the letter of credit expires. If the letter of credit provides for an expiration date, said letter of credit shall be automatically renewed for successive periods of one (1) year each unless the issuer of the letter of credit provides the City written notice of its intent to cancel the letter of credit. Said notice must be provided at least ninety (90) days prior to the expiration of the date of the original term or any renewed one (1) year term. Notice to the City that the letter of credit will expire prior to the performance of the obligations guaranteed by the letter of credit shall be deemed a default and shall entitle City to collect on the letter of credit. 2003 S-20 2 Boynton Beach Code c. The purpose or project for which the letter of credit is issued. d. The specific amount of the letter of credit, in U.S. Dollars. e. The method of disbursement of draws against the letter of credit. f. The street address where draws against the letter of credit shall be made. g. The letter of credit is enforceable in a court of competent jurisdiction in Palm Beach County, Florida, and is to be interpreted by Florida Law. h. The name and street address of a designated agent within the State of Florida for acceptance of process. 2. At the time of issuance of the letter of credit, and at all times subsequent thereto and so long as the letter of credit is enforceable, the issuing financial institution must have a minimum "peer group" rating of fifty (50) in the latest Sheshunoff Quarterly Listing or a minimum rating of one hundred twenty-five (125) in the latest IDC Bank Financial Quarterly Listing. The city finance department shall periodically verify this information. 3. At any time during the life of the letter of credit, should the rating of the issuing financial institution fall below both of the minimum ratings indicated in Section 2 above, or should the financial institution merge with another financial institution or have a conservator or receiver appointed to supervise or control the operation of its business or become insolvent, the contractor/developer must, within sixty (60) calendar days after notification by the city: a. Replace the existing letter of credit with a replacement letter of credit from a financial institution with either of the minimum ratings as specified in Item 2 above; or b. At the city's option, the letter of credit may be replaced by other surety acceptable to the city in accordance with the city's existing surety policies. 4. Failure to comply with this provision may result in any or all of the following actions by the city: suspension of the contractor/developer's right to pull building permits and schedule inspections; issuance of a stop work order; and/or revocation of the land development permit. These actions shall be in effect until a satisfactory replacement surety is accepted by the city. 5. No letter of credit shall be deemed accepted by the city until accepted by motion or resolution of the City Commission, following review and approval by the city attorney's office for legal sufficiency, and by the finance department for the bank's rating. 6. Original letters of credit shall be maintained by the finance department and each shall be clearly identified as to the project or contract for which it is issued. 7. Letters of credit accepted prior to approval of this article shall continue through the current expiration date of the letter of credit provided however, renewal of these existing letters of credit shall be in accordance with this policy for accepting letters of credit. 8. The financial institution issuing any letter of credit must be authorized to do business in the State of Florida and shall show proof of same upon request of city staff. B. CASH, CERTIFIED CHECK, CASHIER'S CHECK. C. PERFORMANCE OR SURETY BOND. Performance or surety bond obtained from a company acceptable to the city in accordance with the city policy on performance bonds. 2003 S-20 Surety 3 D. ESCROW (AGREEMENT) DEPOSIT. An executed escrow agreement between the developer, a bank approved by the city and the city as the third party beneficiary may be established for this surety. The escrow agreement shall require that release of the funds, or any part thereof, shall be subject to city approval. The agreement shall be in accordance with the city policy on such escrow agreements. (Am. Ord. 98-08, § 1, 2-2-98; Ord. No. 02-033, § 4, 8- 20-02; Ord. No. 03-018, §§ 1-3, 6-3-03) 2003 S-20 4 Boynton Beach Code