(a) Requirement. Conditions attached to an approval of a land use permit may include the following:
(1) A condition requiring the applicant to provide performance guarantees and/or maintenance guarantees deemed necessary to ensure compliance with the requirements of this chapter and the conditions of permit approval.
(2) A condition permitting the applicant to provide performance guarantees in lieu of actual completion or required improvements prior to the use or occupancy of the development authorized by the land use permit, provided the delayed completion of such improvements is determined to be compatible with the public health, safety and welfare.
(b) Type of guarantee. The type of the performance guarantee shall be at the election of the developer, and may include a:
(1) Surety bond issued by any company authorized to do business in North Carolina.
(2) Letter of credit issued by any financial institution licensed to do business in North Carolina.
(3) Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
(c) Form. Such performance guarantees and maintenance guarantees shall be satisfactory as to their form and manner of execution, and as to the sufficiency of their amount in securing the satisfactory construction, installation, or maintenance of the required improvements.
(d) Time period for completing improvements. The condition requiring or permitting a performance guarantee shall specify a reasonable time period within which required improvements must be completed. Such time period shall be incorporated in the performance guarantee. The length of such time period shall initially be one year from the date the land use permit is issued, unless the developer determines that the scope of work for the required improvements necessitates a longer duration. In the case of a bonded obligation, the completion date shall be set one year from the date the bond is issued, unless the developer determines that the scope of work for the required improvements necessitates a longer duration.
(e) Sufficiency. The amount of the performance guarantee shall not exceed 125 percent of the reasonably estimated cost of completion at the time the performance guarantee is issued. In calculating the sufficiency of the amount of the performance guarantee, the county may base such calculations on the actual cost of such improvements at the time of acceptance of the performance guarantee, as well as anticipated costs of such improvements at the end of the time period. The reasonably estimated cost of completion shall include 100 percent of the costs for labor and materials necessary for completion of the required improvements. Where applicable, the costs shall be based on unit pricing. The additional 25 percent allowed under this subsection includes inflation and all costs of administration regardless of how such fees or charges are denominated. The amount of any extension of any performance guarantee shall be determined according to the procedures for determining the initial guarantee and shall not exceed 125 percent of the reasonably estimated cost of completion of the remaining incomplete improvements still outstanding at the time the extension is obtained.
(f) Extension. A developer shall demonstrate reasonable, good-faith progress toward completion of the required improvements that are secured by the performance guarantee or any extension. If the improvements are not completed to the specifications of the local government, and the current performance guarantee is likely to expire prior to completion of the required improvements, the performance guarantee shall be extended, or a new performance guarantee issued, for an additional period. An extension under this subdivision shall only be for a duration necessary to complete the required improvements. If a new performance guarantee is issued, the amount shall be determined by the procedure provided in subsection (e) of this section and shall include the total cost of all incomplete improvements.
(g) No performance guarantee shall be released until certification of the satisfactory completion of all required improvements covered by such performance guarantee has been submitted to and approved by the planning director, which shall be done in a timely manner upon the acknowledgement by the county that the improvements for which the performance guarantee is being required are complete. The county shall return letters of credit or escrowed funds upon completion of the required improvements to its specifications or upon acceptance of the required improvements, if the required improvements are subject to county acceptance.
(h) If the required improvements covered by a performance guarantee are not completed in accordance with the terms of the performance guarantee, the obligor shall be liable thereon to the county for the reasonable cost of the improvements not completed and the county may, either prior to or after the receipt of the proceeds thereof, complete such improvements.
(Ord. of 7-10-2000, § 7.3.3; Amend. - - )