After the Improvement Plans have been approved and all inspection fees paid, but before approval of the Final Plat, the Subdivider shall guarantee the completion of improvements required by the approved Improvement Plans ("required improvements") of such improvements as required herein. Except as provided in Section 440.120(B), the Subdivider shall either:
1. Complete the improvements in accordance with the approved Improvement Plans under the observation and inspection of the appropriate public agency agreement; or
2. Establish a deposit under a deposit agreement with the City guaranteeing the construction, completion, and installation ("construction deposit") as required herein and for the improvements shown on the approved Improvement Plans within the improvement completion period approved by the City, which shall not exceed two (2) years.

1. No guarantee or deposit is required with the City for sanitary and storm sewers required by MSD if MSD confirms that its requirements for assurance of completion are satisfied. This provision shall not affect the intent or enforcement of any existing guarantee, escrow, or renewal, extension, or replacement thereof.
2. The City may require any specific improvement to be installed prior to approval of the Final Plat where failure to install such improvement prior to further development could result in damage to the site or surrounding properties.

Deposits required by this Section 440.120 shall be in conjunction with a deposit agreement and may be in the form of cash or letter of credit as follows:

1. Cash deposited with the City Clerk to be held in an interest-bearing account dedicated for that purpose, with all interest accruing to the City to offset administrative and other costs of maintaining the cash deposits.
2. An irrevocable letter of credit drawn on a local Financial Institution acceptable to and in a form approved by the City Attorney. The instrument may not be drawn on any Financial Institution with whom the Subdivider or a related entity has any ownership interest or with whom there is any joint financial connection that creates any actual or potential lack of independence between the Financial Institution and the Subdivider. The letter of credit shall provide that the issuing Financial Institution will pay on demand to the City such amounts as the City may require to fulfill the obligations herein and may be reduced from time to time by a writing of the City. The letter of credit shall be irrevocable for at least one (1) year and shall state that any balance remaining at the expiration shall automatically be deposited in cash with the City Clerk unless a new letter of credit is issued and agreed to by the City or the City issues to the Financial Institution a written release of the obligations for which the letter of credit was deposited. The Subdivider shall pay a non-refundable fee, in the amount set out in Addendum A, to the City with submission of a letter of credit, and the same fee for any amendment or extension thereto, to partially reimburse the City's administration and review costs in accepting and maintaining such letter of credit.

The construction deposit required of a Subdivider establishing a deposit agreement pursuant to Section 440.120(A)(2) shall be in the amount of one hundred ten percent (110%) of the Director's estimate of the cost of the construction, completion, and installation of the required improvements. The City may adopt, to the extent practical, schedules reflecting current cost estimates of typically required improvements. Where certain improvements are required to be installed prior to approval of the Final Plat pursuant to Section 440.120(B)(2), the gross deposit amount for the construction deposits shall be reduced by the estimated cost of such improvements.

The deposit agreement shall be entered into with the City, shall require the Subdivider to agree to fulfill the obligations imposed by this Section 440.120, and shall have such other terms as the City Attorney may require consistent with this Section 440.120. The agreement shall authorize the designated City Official to release the cash or reduce the obligation secured under the letter of credit as permitted herein. Such releases or reductions may occur upon completion, inspection, and approval of all required improvements within a category of improvements, or may occur from time to time, as work on specific improvements is completed, inspected, and approved, provided however, that:

1. Releases-general. The City shall release the cash or release the letter of credit as to all or any part (by category) of the Subdivider's obligation only after construction, completion, and installation of all of the improvements as required by the approved Improvement Plans, receipt of requisite written inspection request from the Subdivider, receipt of requisite written notification from all appropriate inspecting public authorities, and approval by the Board (or its designee); and only in the amounts permitted herein.

a. Inspections. The Director shall inspect each category of improvement or utility work within twenty (20) business days after an inspection request has been filed with the City Clerk by the Subdivider and no inspection shall be required until such request is received by the City Clerk. For purposes of this Section, an "inspection request" shall constitute and occur only on a completed written request on a form provided by the City which shall include:

(1) The category of improvement reflected in the deposit agreement that is requested to be inspected;
(2) An engineer's certification (or other professional's certification, in the case of landscaping) that the category of improvement has been installed and on the date of inspection application is maintained and in conformance with the final approved Improvement Plans and all applicable requirements thereto and is therefore ready for inspection; and
(3) A verified statement in the form designated by the City from the representative officer of the Subdivider attesting that the information in the inspection request is true and accurate. Nothing herein shall preclude the Director from completing additional inspections at his/her discretion or as a courtesy to the Subdivider.

b. Successor Subdivider. A Subdivider must be released from all further obligations if a replacement performance guarantee in the form provided in this Section in an amount equal to or exceeding the value of the unreleased portion of the original guarantee is given by another Subdivider. The release of the original guarantee shall not occur until after the replacement guarantee has been finalized and approved by the City.

2. Extension of completion period. If, at the end of the improvement completion period, all the improvements shown on the approved Improvement Plans have not been completed, the Subdivider may request and the Board may grant an extension to the improvement completion period for a period of up to two (2) years if after review by the City such longer period is deemed necessary to facilitate adequate and coordinated provisions for transportation, water, sewerage, schools, parks, playgrounds, or other public improvements, facilities, or requirements so long as all guarantees are extended and approved by the City Attorney; provided that the City may require as a condition of the extension execution of a new agreement, recalculation of deposit amounts, or satisfaction of new Code requirements or other reasonable conditions as may be needed to ensure that the extended agreement fully complies with the terms of this Section 440.120.
3. Construction deposit releases. After an inspection of any specific improvements, the Director may at its discretion release up to but not more than ninety-five percent (95%) of the original sum deposited for the construction of such specific required improvements. Irrespective of any discretionary prior releases that may be authorized by the Director after completion of any component of the guaranteed improvements (i.e., less than all of the improvements in a given category), the remaining amount held for any category of improvements for the entire Subdivision shall be released within thirty (30) days of completion of all of the improvements in such category of improvement, minus a retention of five percent (5%) which shall be released only upon completion of all improvements for the Subdivision. The City shall establish the improvement categories, which may consist of improvement components or line items, to be utilized for calculation of deposit amounts, but such categories, components, and line items shall in no way modify or reduce the Subdivider's guarantee as to all required improvements, irrespective of any release or completion of any category, or underlying component or line item. All improvements in a category shall be deemed complete only when: (1) each and every component and line item within a category for the entire Subdivision has been constructed and completed as required; (2) the Subdivider has notified the City Clerk in writing of the completion of all components of the category, provided all necessary or requested documentation, and requests an inspection; (3) the Subdivider is not in default or in breach of any obligation to the City under this Section 440.120 including, but not limited to, the City's demand for maintenance or for deposit of additional sums for the Subdivision; and (4) the inspection has been completed and the results of the inspection have been approved in writing by the Director.
4. Effect of release—continuing obligations. The Subdivider shall continue to be responsible for defects, deficiencies, and damage to Streets and other required improvements during development of the Subdivision. No inspection approval or release of funds from the construction deposit as to any component or category shall be deemed to be City approval of improvement or otherwise release the Subdivider of its obligation relating to the completion of the improvements until the final Subdivision release on all improvements is issued declaring that all improvements have in fact been constructed as required. Inspection and approval of any or all required improvements shall not constitute acceptance of the improvement by the City as a public improvement for which the City shall bear any responsibility.
5. Deficient improvements. No approval of required improvements shall be granted for improvements that fail to meet the specifications established herein or otherwise adopted by the City.
6. Final construction deposit release. Upon final inspection and approval of all required improvements, the remaining amount of the construction deposit shall be released; provided that no such funds shall be released on a final inspection until the development of the Subdivision is complete, as determined by the Director.

The obligation of the Subdivider to construct, complete, install, and maintain the improvements indicated on the approved Improvement Plans shall not cease until the Subdivider shall be finally released by the City. If, after the initial improvement completion period, or after a later period as extended pursuant to this Section 440.120, the improvements indicated on the approved Improvement Plans are not constructed, completed, installed, accepted, and maintained as required, or if the Subdivider shall violate any provision of the deposit agreement, the City may notify the Subdivider to show cause within not less than ten (10) days why the Subdivider should not be declared in default. Unless good cause is shown, no building or other permit shall be issued to the Subdivider in the Subdivision during any period in which the Subdivider is in violation of the deposit agreement or Subdivision Code relating to the Subdivision. If the Subdivider fails to cure any default or present compelling reason why no default should be declared, the City shall declare the Subdivider in default and may take any one (1) or more of the following acts:

1. Deem the balance under the deposit agreement not theretofore released as forfeited to the City, to be then placed in an appropriate trust and agency account subject to the order of the City for such purposes as letting contracts to bring about the completion of the improvements indicated on the approved Improvement Plans or other appropriate purposes in the interest of the public safety, health, and welfare; or
2. Require the Subdivider or lender to pay to the City the balance of the surety not theretofore released; or
3. Require the Subdivider to submit an additional cash sum sufficient to guarantee the completion of the improvements indicated on the approved Improvement Plans after recalculation to allow for any inflated or increased costs of constructing the improvements.

The failure of a Subdivider to complete the improvement obligations within the time provided by the agreement (or any extension granted by the City), and including the payment of funds to the City due to such failure or an expiration of a letter of credit, shall be deemed an automatic act of default entitling the City to all remedies provided in this Section 440.120 without further or prior notice. It shall be the sole responsibility of the Subdivider to timely request an extension of any deposit agreement if the improvements are not completed in the original time period provided by the deposit agreement, and no right to any extension shall exist or be assumed.

If the Subdivider or surety fails to comply with the City's requirements for payment as described above, or fails to complete the improvements as required, or otherwise violates the deposit agreement provisions, and there is a risk that development will continue in the Subdivision without the timely prior completion of improvements or compliance with deposit agreement provisions, the City may in addition or alternatively to other remedies:

1. Suspend the right of anyone to build or construct on the undeveloped portion of the Subdivision. For the purpose of this Subsection 440.120(G), the "undeveloped portion of the Subdivision" means all Lots other than Lots which have been sold for personal use and occupancy or are under bona fide contract for sale to any person for personal use or occupancy. The City shall give the Subdivider ten (10) days' written notice of an order under this Subsection 440.120(G) with copies to all sureties, as appropriate, who have outstanding obligations for any undeveloped portion of the Subdivision and shall record an affidavit of such notice with the Recorder of Deeds. If, within the ten-day period after notice is given, the City is not convinced by compelling evidence that completion of the improvements is adequately assured and maintenance of Streets assured as provided herein, the City shall order construction suspended on the undeveloped portion of the Subdivision. The order shall be served upon the Subdivider, with a copy to the issuer of the surety as appropriate, and a copy recorded with the Recorder of Deeds. Public notice of said order shall be conspicuously and prominently posted by the City at the Subdivisions or Lots subject to said order. The notice shall contain the following minimum language, which may be supplemented at the discretion of the designated City Official:

a. If said notice is for a Subdivision:

THIS SUBDIVISION, (name of Subdivision), HAS BEEN DECLARED IN DEFAULT BY THE CITY OF FENTON. NO DEVELOPMENT, CONSTRUCTION, BUILDING, OR DEMOLITION IN ANY MANNER SHALL TAKE PLACE WITHIN THE LIMITS OF THIS SUBDIVISION UNTIL SUCH TIME AS THE CITY OF FENTON REMOVES THIS PROHIBITION. ANY DEVELOPMENT, CONSTRUCTION, BUILDING, OR DEMOLITION IN ANY MANNER WHILE THIS PROHIBITION IS IN EFFECT IS ILLEGAL AND SHALL BE ENFORCED PURSUANT TO CHAPTER 440, CITY OF FENTON MUNICIPAL CODE.

b. If said notice is for a Lot:

THIS LOT, (lot number), HAS BEEN DECLARED IN DEFAULT BY THE CITY OF FENTON. NO DEVELOPMENT, CONSTRUCTION, BUILDING, OR DEMOLITION IN ANY MANNER SHALL TAKE PLACE WITHIN THE LIMITS OF THIS LOT UNTIL SUCH TIME AS THE CITY OF FENTON REMOVES THIS PROHIBITION. ANY DEVELOPMENT, CONSTRUCTION, BUILDING, OR DEMOLITION IN ANY MANNER WHILE THIS PROHIBITION IS IN EFFECT IS ILLEGAL AND SHALL BE ENFORCED PURSUANT TO CHAPTER 440, CITY OF FENTON MUNICIPAL CODE.

The suspension shall be rescinded in whole or in part only when the City is convinced that completion of the improvements is adequately assured in all or an appropriate part of the Subdivision; or

2. Suspend the rights of the Subdivider, or any related entity, to construct Structures in any development platted after the effective date of such suspension throughout City and such incorporated areas as are under City jurisdiction. The City shall give the Subdivider ten (10) days' written notice of an order under this clause, with a copy to sureties known to the City to have obligations outstanding on behalf of the Subdivider or related entities and shall record an affidavit of such notice with the Recorder of Deeds. If, within the ten-day period after notice is given, the City is not convinced by compelling evidence that completion of the improvements is adequately assured and maintenance of Streets assured as provided herein, the City shall order construction suspended. The order shall be served upon the Subdivider, with a copy to the surety as appropriate, and a copy recorded with the Recorder of Deeds. The suspension shall be rescinded only when the City is convinced that completion of the improvements is adequately assured.

From and after the effective date of this Chapter if a Subdivider, or any related entity, has a Subdivision development improvement guarantee that is in default, as determined by the City, including any escrow or bond under any prior enactment of this Section 440.120:

1. The City shall be authorized, but not be limited, to thereafter pursue the remedies of Subsection G ; and
2. The rights of the Subdivider, or any related entity, to receive development approval, which approval shall include, but not be limited to, approval of any Plat or deposit agreement for new or further development in the City, shall be suspended. The suspension shall be rescinded only when the City is convinced that completion of the improvements is adequately assured.

If any party fails to comply with any obligation of this Section 440.120, the City may recommend that the City Attorney take appropriate legal action and may also withhold any building or occupancy permits to this Subdivider or related entities until such compliance is cured. The City shall also have the right to partially or wholly remedy a Subdivider's deficiencies or breached obligations under this Code by set-off of any funds or assets otherwise held by the City of the Subdivider to the maximum extent permitted by law. Such set-off shall occur upon written notice of such event by the City to the Subdivider after the Subdivider has failed to timely cure the deficiencies. It shall be deemed a provision of every deposit agreement authorized under this Chapter 440, that the Subdivider shall pay the City's costs, including reasonable attorney's fees, of enforcing this Section 440.120 or any agreement thereunder in the event that the Subdivider is judicially determined to have violated any provision herein or in such agreement.

For purposes of this Section 440.120, "related entity" has the following meaning: a Subdivider is a "related entity" of another person.

1. If either has a principal or controlling interest in the other; or
2. If any person, firm, corporation, association, partnership, or other entity with a controlling interest in one has a principal or controlling interest in the other.

The identification of related entities shall be supported by documentation from the Secretary of State's Office, Jefferson City, Missouri.