(a) Generally. Upon approval of the preliminary plat by the zoning and planning board, the subdivider may proceed with preparation of the final plat, the land clearing, the land disturbance and/or the installation of or arrangements for roads, utilities, and other improvements as specified in the approved portion of the preliminary plat that will be submitted for final approval.
(b) Improvements guarantees.
(1) Agreement prior to final plat approval. In lieu of requiring the completion, installation and dedication of all improvements prior to final plat approval, the town may enter into an agreement with the subdivider whereby the subdivider shall agree to complete all required improvements as specified on the approved preliminary plat for that portion of the subdivision to be shown on the final plat within a reasonable time to be determined in said agreement. The guarantees under such an agreement shall include the following:
a. That water supply and distribution systems and sewer collection systems are installed in accordance with the Town Standard Specifications and Details for Construction;
b. That streets and the stormwater collection network are installed as specified in these regulations;
c. That soil erosion control measures are installed and maintained as specified in chapter 22;
d. That tree and/or environmental protection measures shown on the plat shall be properly installed and maintained throughout land clearing, land disturbance and/or development;
e. That areas of the subdivision specified on the plat to be graded shall be graded as specified or shall be so graded at the expense of the subdivider;
f. That areas of the subdivision specified on the plat to be left ungraded shall be left ungraded as specified or shall be returned as far as possible to the original condition at the expense of the subdivider;
g. That any significant trees cut without appropriate approvals, or damaged to an extent likely to cause the death of those trees, shall be replaced by healthy trees at the expense of the subdivider;
h. That any areas exceeding 100 square feet in size from which native shrubbery and their stumps and roots have been removed without approval as part of a tree protection plan, or damaged to an extent likely to cause the death of those shrubs, shall be replanted with healthy shrubbery at the expense of the subdivider; and
i. That replacement trees and shrubbery shall be of species recommended in the Lake Lure Tree Protection Handbook, and at the "minimum dbh for replanting" sizes appropriate to the species as shown in section 28-193. They shall be planted in sufficient numbers to equal the total inches in dbh of the trees so damaged or removed, and/or to fully replant the area of shrubbery so damaged or removed.
(2) Breaking final plat into phases. The town may require that the final plat be broken into smaller phases when the required security exceeds $500,000.00, or when the town's interest (as determined by town council) would be served by an alternate phasing plan. The extent of the smaller phases shall be established by the applicant in cooperation with the subdivision administrator.
(c) Preliminary plat approval requirements. Once said agreement is signed by both parties and security required herein is provided, the final plat may be approved by the zoning and planning board provided it meets with the requirements of section 28-35. To secure this agreement, the subdivider shall provide, following the preliminary plat approval of the zoning and planning board, either one or a combination of the following guarantees not exceeding 1.75 times the entire cost as approved by the subdivision administrator, of installing required improvements, replanting, and repairs, as specified in subsection (b)(1) of this section, on the approved preliminary plat for that portion of the subdivision to be shown on the final plat.
(1) Surety performance bond. The subdivider shall obtain a performance bond with supporting references relative to our region from a surety bonding company authorized to do business in the state, and having a secure financial strength rating from the A.M. Best Company or an equivalent rating from a firm acceptable to the town. No bond in excess of $100,000.00 shall be accepted from any single surety bonding company with a rating from the A.M. Best Company lower than A- (or an equivalent rating from a firm acceptable to the town). The bond shall be payable to the Town Of Lake Lure. The duration of the bond shall be until such time as the improvements are approved by the town council.
(2) Cash or equivalent security. The subdivider shall deposit cash or other instrument readily convertible into cash at face value, either with the town or in escrow with a financial institution designated as an official depository of the town. The use of any instrument other than cash shall be subject to the approval of the town council. If cash or other instrument is deposited in escrow with a financial institution as provided in this subsection, then the subdivider shall file with the town council an agreement between the financial institution and himself guaranteeing the following:
a. That said escrow account and any accumulated interest shall be held in trust until released by the town council and may not be used or pledged by the subdivider in any other matter during the term of the escrow; and
b. That in the case of a failure on the part of the subdivider to complete any improvements or any required replantings or repairs, the financial institution shall, upon notification by the town council and submission by the town council to the financial institution of the subdivision administrator's determination of the amount needed to complete the improvements, replantings, or repairs, immediately either pay to the town the funds determined to be needed to complete the improvements, replantings, or repairs up to the full balance of the escrow account, or deliver to the town any other instruments fully endorsed or otherwise made payable in full to the town.
(3) Letter of credit. When a letter of credit is submitted, it shall be approved by the town attorney and the town council and deposited with the subdivision administrator; the following information shall be contained in said letter:
a. It shall be entitled "Irrevocable letter of credit."
b. It shall indicate that the town is the sole beneficiary.
c. The amount (of the letter of credit) as approved by the subdivision administrator.
d. The account number and/or credit number that drafts may be drawn on.
e. A list of improvements that shall be built that the letter is guaranteeing.
f. A list of conditions to be met with regard to tree and/or native shrub health and safety at the conclusion of land clearing, land disturbance and/or development, including replanting any replaced trees and/or shrubs not found in good health for the period specified in subsection (b)(1)i of this section.
g. Terms in which the town may make drafts on the account.
h. Expiration date of the letter.
(d) Default. Upon default, meaning failure on the part of the subdivider to complete the required improvements, replantings, and/or repairs in a timely manner as spelled out in the agreement in subsection (b)(1) of this section, the surety, or the financial institution holding the escrow account shall, if requested by the town council, pay all or any portion of the bond or escrow fund to the town up to the amount needed to complete the improvements, replantings, and/or repairs based on the subdivision administrator's determination. Upon payment, the town council, in its discretion, may expend such portion of said funds as it deems necessary to complete all or any portion of the required improvements, replantings, and/or repairs. The town shall return to the surety or escrow account any funds not spent in completing the improvements, replantings, and/or repairs.
(e) Release of guarantee security. The town council may release a portion of any security posted as the improvements, replantings, and/or repairs are completed and recommended for approval by the subdivision administrator. Prior to release of all or any portion of the security posted, the subdivider shall:
(1) Submit signed and sealed statements from a licensed engineer and/or the tree protection officer that the improvements, replantings, and/or repairs for which the developer seeks release of funds have been installed in accordance with all applicable state and local specifications and according to the approved plans and that the property is properly stabilized.
(2) Obtain a two-year extension of the letter of credit in cases where trees and/or shrubs were required to be replaced, to assure replanting of any such trees and/or shrubs not found to be in good health at the end of the period specified in subsection (b)(1)i this section. This deposit shall be in an amount equal to 1.75 times the determined cost of replanting the failed replacement trees, as determined by the subdivision administrator.
(f) Release of security. At such time as these requirements have been met, and the subdivision administrator approves all improvements, replantings, and/or repairs placed in the subdivision as set forth by the zoning and planning board, then all security posted shall be immediately released.
(Code 1989, § 91.18; Ord. of 5-23-1995; Ord. of 10-10-2006; Ord. of 11-14-2006; Ord. of 1-9-2007; Ord. of 6-10- 2008; Ord. of 11-10-2009; Ord. of 11-17-2009)