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20.40.490 Assurance device.
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A. General. The City may require or allow a performance or maintenance assurance device when the City determines the device is necessary pursuant to subsection B of this section.

B. When Applicable.

1. Performance Assurance Device.

a. The applicable Department Director may require a performance assurance device:

i. When a use or activity will, in the opinion of the Director, take place in a location or under circumstances which present a significant risk to the public health, safety, or welfare; or

ii. To protect the City from potential damage claims of others or damage to City streets, utilities, or property; or

iii. To assure that all work or actions required by a permit or approval are satisfactorily completed in accordance with approved plans, specifications, requirements, conditions, regulations, and policies; or

iv. To assure that work or actions not satisfactorily completed will be corrected to comply with approved plans, specifications, requirements, conditions, regulations and policies; or

v. To repair degradation to the environment or damage to the City’s utility systems that occurred as a result of the use or activity.

b. The applicable Department Director may allow a performance assurance device if:

i. The applicant is unable to complete the work or improvements to be covered by the assurance device because of unavoidable circumstances that in no way resulted from the actions or inaction of the applicant, or a performance assurance device is specifically authorized by the Bellevue City Code; and

ii. It is reasonably certain that the applicant will be able to complete the work or improvements to be covered by the assurance device within a reasonable amount of time; and

iii. Granting a temporary certificate of occupancy prior to completion of the work or improvements will not be materially detrimental to the City or the properties in the vicinity of the subject property.

2. Maintenance Assurance Device.

a. The applicable Department Director shall require a maintenance assurance device when required by a provision of the Bellevue City Code.

b. The applicable Department Director may require a maintenance assurance device:

i. To assure proper functioning of facilities and improvements required as a condition of a permit or approval, including but not limited to the adequacy of materials and work, the satisfactory compliance with all regularly scheduled or necessary maintenance or monitoring activities and with all requirements of the Bellevue City Code; or

ii. When he/she determines such a device is necessary to protect the interests of the public.

C. Form of Assurance Device.

1. In each case where the City requires or allows an applicant to provide an assurance device, the applicable Department Director shall determine the type of assurance device that will be used.

2. The assurance device may be a nonrevocable letter of credit, set-aside letter, assignment of funds, certificate of deposit, deposit account, bond, or other readily accessible source of funds.

A bond will be accepted only when circumstances make a bond the only reasonable form of assurance as determined by the Department Director, and the bond adequately protects the interests of the City, or when a bond is required by state statute.

3. Interest from any interest-bearing form of assurance device will accrue to the benefit of the depositor.

D. Amount of Assurance Device.

1. General. The applicable Department Director shall determine the amount of the assurance device as follows:

a. For a performance device, the amount will be 150 percent of the cost of the work or improvements covered by the assurance device based on estimated costs immediately following the expiration of the device.

b. For a maintenance device, the amount will not be less than 20 percent of the cost of replacing the materials covered by the assurance device based on estimated costs on the last day covered by the device. The Director may require an amount more than 20 percent where the Director determines such increased amount is necessary to assure that adequate funds will be available to protect health, safety and welfare, or to protect critical area functions and values in the event of total or partial failure or underperformance of the work requiring the maintenance device.

2. Assistance in Determining Estimated Costs. The applicable Department Director may consult with one or more persons with applicable special knowledge or expertise in determining the cost of work or improvements covered by an assurance device under subsection D.1 of this section. The applicant shall pay the actual costs of this consultation prior to the Director accepting the device.

E. Irrevocable License Signed by the Owner of the Subject Property. In each case where the City requires or allows an applicant to establish an assurance device, the owner of the subject property shall give the City a signed notarized irrevocable license to run with the property to allow the employees, agents, or contractors of the City to go on the subject property for the purpose of inspecting and, if necessary, doing the work or making the improvements covered by the device. The applicant shall file this license with the Department.

F. Release of Assurance Device.

1. After the work or improvements covered by a performance assurance device have been completed to the satisfaction of the City or, at the end of the time covered by a maintenance assurance device, the applicant may request the City to release the device.

2. The City shall release such device as expeditiously as possible after receipt of a request for release.

G. Use of Proceeds – Notice to Property Owner. If during the period of time covered by a maintenance assurance device or after the date by which the required work or improvements are to be completed under a performance assurance device, the applicable Department Director determines that the work or improvements have not been complied with, he/she shall notify the applicant. The notice must state:

1. The work that must be done or the improvement that must be made to comply with the requirements and the assurance device; and

2. The amount of time that the applicant has to commence and complete the required work or improvements; and

3. That, if the work or improvements are not commenced and completed within the time specified, the City will use the proceeds of the assurance device to have the required work or improvements completed.

H. Use of Proceeds – Work by the City. If the work or improvements covered by the assurance device are not completed within the time specified in the notice given under subsection G of this section, the City shall obtain the proceeds of the device and do the work or make the improvements covered by the device. The City may either have employees of the City do the work or make the improvements or, by using procurement procedures established by law, have a contractor do the work or make the improvements.

I. Use of Proceeds – Emergency Work by City. If at any time the Director or Director’s designee determines that actions or inaction associated with any assurance device have created an emergency situation endangering the public health, safety, or welfare, creating a potential liability for the City, or endangering City streets, utilities, or property, or endangering critical area functions and values; and if the nature or timing of such an emergency precludes the notification of applicants as provided in subsection G of this section while still minimizing or avoiding the effects of the emergency, the City may use the assurance device to correct the emergency situation. The City may either have employees of the City do the work or make the improvements, or may have a contractor do the work or make the improvements. If the City uses the assurance device as provided by this section, the applicant shall be notified in writing within four days of the commencement of emergency work. The notice must state the work that was completed and the nature or timing of the emergency that necessitated the use of the assurance device without prior notification.

J. Use of Proceeds – Refund of Excess, Charge for all Costs. The property owner is responsible for all costs incurred by the City in doing the work and making the improvements covered by the assurance device. The City shall release or refund any proceeds of a performance device remaining after subtracting all costs for doing the work covered by the device. The owner of the subject property shall reimburse the City for any amount expended by the City that exceeds the proceeds of the device. The City shall have a lien against the subject property for the amount of any excess.

K. Itemized Statement. In each case where the City uses any of the proceeds of the device, it shall give the owner of the subject property an itemized statement of all proceeds and funds used. (Ord. 5683, 6-26-06, §§ 31, 32; Ord. 5480, 10-20-03, § 25; Ord. 4973, 3-3-97, §§ 870, 871; Ord. 4816, 11-27-95, § 970, 971; Ord. 3690, 8-4-86, § 34; Ord. 3530, 8-12-85, § 80)

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