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6.6.2.   Eligible Facilities and Features
   A.   The following facilities and site features may be eligible for performance guarantees at the discretion of the Town:
      1.   Public Facilities. The following forms of public infrastructure may be completed subject to a performance guarantee:
         a.   Sidewalks;
         b.   Greenways;
         c.   Multi-use paths; or
         d.   The final lift of asphalt on a street.
      2.   Private Site Features.
         a.   The following forms of private site features may be completed subject to a performance guarantee:
            i.   Required landscaping;
            ii.   Private stormwater management facilities; and
            iii.   Reforestation activity (see Section 5.9.4.B, Reforestation Standards).
         b.   All other required site features shall be completed prior to issuance of a certificate of occupancy for the development.
   B.   Performance guarantees shall be configured and managed in accordance with the standards in this section.
(Ord. 2020-36, passed 12-2-2019)
6.6.3.   Ineligible Facilities
The following infrastructure facilities are not eligible for performance guarantees, and shall be completed and dedicated to the Town prior to approval of the final plat:
   A.   Potable water;
   B.   Sanitary sewer;
   C.   Public stormwater management facilities;
   D.   Curb and gutter;
   E.   Street signs, traffic control signals, and
   F.   Street lights.
(Ord. 2020-36, passed 12-2-2019)
6.6.4.   Maximum Term of Guarantee
Performance guarantees associated with landscaping or reforestation shall have a maximum term of one year, otherwise there shall be no maximum term or expiration for other performance guarantees.
(Ord. 2020-36, passed 12-2-2019)
6.6.5.   Form of Guarantee
   A.   The applicant shall determine the form(s) of the performance guarantee, which shall be provided in one or more of the following forms:
      1.   Cash or Irrevocable (Evergreen) Letter of Credit.
         a.   The developer shall deposit cash or an irrevocable (or "evergreen") letter of credit either with the Town or in escrow with a North Carolina financial institution.
         b.   If cash or other instrument is deposited in escrow with a financial institution, an agreement between the financial institution and the developer shall be filed with the Town guaranteeing the following:
            i.   That the escrow account shall be held in trust until released by the Town and may not be used or pledged by the developer for any other matter during the term of the escrow; and
            ii.   That in case of a failure on the part of the developer to complete or repair the improvements, the financial institution shall, upon notification by the Town, immediately pay the funds deemed necessary by the Town to complete or repair the improvements 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.
            iii.   The financial institution holding the cash or other instrument shall indicate to the Town its notification requirements for release or payment of funds.
      2.   Surety Bond.
         a.   The developer shall obtain a surety bond from a surety bonding company authorized to issue surety bonds in North Carolina.
         b.   The bond shall be payable to the Town and shall be in an amount as required by this subsection.
      3.   Other Guarantee. The developer may provide another form of guarantee that provides equivalent security to a surety bond or letter of credit, as determined by the Town Attorney.
   B.   The performance guarantee shall distinguish between the portion of the guarantee provided for public infrastructure improvements as well as the portion of the guarantee provided for private site improvements, if applicable.
   C.   The performance guarantee shall be conditioned on the performance of all work necessary to complete the installation of the required improvements within the term of the guarantee.
(Ord. 2020-36, passed 12-2-2019)
6.6.6.   Administration of Guarantees
   A.   Guarantees Associated with Reforestation or Landscaping. The Planning Director shall process, review, and decide performance guarantee requests associated with reforestation or landscaping.
   B.   Guarantees Associated with Public Infrastructure. The Town Engineer shall process, review, and decide performance guarantee requests associated with public infrastructure.
   C.   Guarantees Associated with Stormwater. The Stormwater Administrator shall process, review, and decide performance guarantee requests associated with stormwater-related provisions.
(Ord. 2020-36, passed 12-2-2019)
6.6.7.   Amount of Guarantee
   A.   Generally. Performance guarantees shall be in an amount equal to 125 percent of the estimated cost of completing the installation of the required improvements, including the costs of materials, labor, and project management.
   B.   Estimated Costs. Estimated costs of completing installation of required public improvements, landscaping or reforestation, or stormwater measures shall be itemized by improvement type and certified by the developer's licensed professional engineer that is consistent with the NCDOT Bid Tab Average for the year in which the guarantee is requested, and is subject to approval in accordance with Section 6.6.6, Administration of Guarantees.
   C.   Renewal. If a performance guarantee is renewed, the appropriate Town official (see Section 6.6.6, Administration of Guarantees) may require the amount of the performance guarantee be updated to reflect changes in cost over time.
(Ord. 2020-36, passed 12-2-2019)
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