(A) Guarantee required. Whenever an applicant chooses to record before completing required public improvements, the applicant shall be required to provide a sufficient guarantee for completion of the required public improvements. Pursuant to G.S. § 160D-804.1, the guarantee shall be in any of the following forms:
(1) Surety bond issued by any company authorized to do business in this state;
(2) Letter of credit issued by any financial institution licensed to do business in this state; or
(3) Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
(B) Amount of guarantee. The guarantee shall not exceed 125% of the reasonably estimated cost of completion at the time the performance guarantee is issued, and shall be sufficient to cover all promises and conditions contained in the development agreement. The approved construction plan shall be signed and sealed by an engineer licensed to practice in the state. The town reserves the right to verify the estimated cost of improvements shown on the approved construction plan with a third-party engineer licensed to practice in the state and any expense shall be assessed to the applicant as a cost recovery fee.
(C) Completion of public improvements. The performance guarantee shall be returned or released, as appropriate, in a timely manner upon the acknowledgment by the town that the improvements for which the performance guarantee is being required are complete. The Board of Commissioners may defer the completion of required improvements provided the applicant guarantees completion of all required public improvements no later than two years following the date of final plat approval. An extension under this subdivision chapter shall only be for a duration necessary to complete the required improvements. Developers of multi-phase developments maybe required to complete and dedicate those improvements necessary for initial development to occur in accordance with the terms of the development agreement.
(D) Final plat recording. Once the development agreement is approved by Board of Commissioners and the required financial guarantee is provided by the developer, the final plat may be approved, or the certificate of occupancy may be issued if all other requirements of this chapter and other land development regulations are met. The approved and executed development agreement shall be recorded in the office of Register of Deeds.
(E) Duration of performance guarantees. The duration of a performance guarantee must be of a reasonable period to allow for completion and acceptance of improvements. In no case may the duration of the performance guarantee exceed two years, unless the guarantee is extended with the consent of Board of Commissioners. The town may release a portion or all of any financial guarantee posted as the improvements are completed and approved by the Board of Commissioners. All infrastructure necessary to serve off-site development must be completed before final release of the financial guarantee.
(F) Default.
(1) Public improvements. Developments with public improvements that are not completed and accepted at least 30 calendar days before the expiration of the performance guarantee will be considered to be in default. Upon default the surety bonding company or the financial institution holding the escrow account must, if requested by the town, pay to the town all or any portion of the bond or escrow fund in an amount deemed necessary by the town to complete the improvements.
(2) Private improvements (engineered stormwater controls or other improvements to remain privately owned). Developments with private improvements that are not completed and accepted at least 30 calendar days before the expiration of the performance guarantee will be considered to be in default. Upon default the surety bonding company or the financial institution holding the escrow account must, if requested by the town, pay to the town all or any portion of the bond or escrow fund in an amount deemed necessary by the town to have the improvements completed. Upon payment, the town shall require completion of all required improvements and shall use such funds or portion thereof from the bond or escrow account to reimburse costs for all or any portion of the required improvements. Default on a project does not release the original applicant or developer and all subsequent applicants and developers from liability and responsibility for completion of the required improvements.
(Ord. passed - -)