Subpart E. Subdivision Improvement Guarantees
Where the required improvements have not been completed, prior to the submission of the final plat for approval, the approval of said plat shall be subject to the applicant guaranteeing the installation of the improvements within thirty (30) months provided the following:
- A minimum of 25 percent of the on site improvements (based on the total project cost that the applicant is guaranteeing) is in place. The required improvements shall include rough grading for all proposed roads that are part of said improvement guarantee
- All required Federal, State and Local permits for the development must be issued with copies provided to the Subdivision Administrator (include any required U.S.Army Corps of Engineers permits, NCDENR permits, water supply and distribution system permits, wastewater collection and treatment system permits, approvals for the extension of electrical power service and other necessary utilities, and all applicable Federal and State permits).
- All associated design plans and construction specifications for the required improvements (i.e. roads, bridges, water and sewer infrastructure, stormwater infrastructure, pedestrian infrastructure, etc.) including the design engineer’s release of such approved plans are submitted to the Subdivision Administrator.
Plans, specifications, quantities, unit costs and estimated total costs shall be provided by the applicant to the Subdivision Administrator. Cost estimates shall:
- Be prepared by a professional engineer licensed in N.C., or certified by a professional land surveyor or landscape architect who is routinely engaged in cost estimates and licensed in N. C., at the applicants’ expense. Water and sewer system infrastructure improvements shall be prepared by a professional engineer licensed in N. C. at the applicant’s expense.
- Provide a schedule for initiation and completion of work.
- Include separate estimates for roads, bridges, water and sewer infrastructure, stormwater infrastructure, pedestrian infrastructure, utilities (including electrical power, natural gas and communication lines), etc., consistent with the approved design plans construction specifications.
- Include separate estimates for any off-site infrastructure improvements such as roadways, stormwater system, water system, sanitary sewer system, etc., are required to be included in the improvement guarantee.
- Include all Federal and /or State mitigation fees due but not paid at the time of the execution of the improvement guarantee. Proof of payment for remediation fees shall be provided to the Subdivision Administrator.
- Include all professional engineering and land surveying fees associated with the bidding and award, construction contract administration and engineering certifications associated with the development of the infrastructure for the proposed development.
- Amount of Guarantee. The improvement guarantee shall be in the amount of 125 percent of the cost to complete the work as determined by cost estimates.
- Guarantee. The applicant shall guarantee the installation of such improvements in an amount equal to the improvement guarantee cost to complete the work as determined by cost estimates amount by either of the methods described below.
- Filing a performance or surety bond or an irrevocable standby letter of credit.
- Depositing a certified check or cash.
- Release of Funds. Portions of the improvement guarantee may be release as work progresses, provided the following:
- The applicant submits a new cost estimate as described in the §42-117.A (Amount of Guarantee) detailing the work that has been complete and the work that is remaining. The amount remaining under the improvement guarantee shall meet or exceed the cost of the remaining improvements.
- Funds shall not be released if the property is in violation of any laws until the violations are remedied to the satisfaction of the charging party.
- At total of not more than four (4) requests for release of funds shall be allowed. The first request for release is eligible when twenty-five (25) percent of the work is completed. The second and third request for release is eligible when fifty (50) percent and seventy-five (75) percent of the work is completed. The fourth and final release is eligible upon completion of all required improvements listed in the improvement guarantee. The release of funds must include a professional Engineer’s statement certifying the work has been satisfactorily completed.
- Approval. All guarantees shall be accompanied by a written agreement (performance agreement) specifying the terms and the amount of the guarantee. The Planning Director shall have the authority to approve all improvement guarantee applications taking into consideration the amount and terms of the guarantees for improvements (including time of initiation and completion of the work).
- Temporary Access and Construction Easement. The applicant shall provide temporary access and permanent construction easement s for all infrastructure improvements.
- Amount and Terms. The amount of the guarantee shall be sufficient to provide adequate funds to the County to ensure, in the case of default, the installation of all required improvements uncompleted at the time of default. All improvement guarantees shall comply with applicable statutory requirements and shall be satisfactory to the County Attorney or Staff Attorney as to form, sufficiency and manner of execution. Guarantees employing lending institutions shall require that those banking corporations be licensed to do business in North Carolina and be from a national association or FDIC registered group.
The following terms shall be stated in the performance agreement:
- The applicant shall be provided 15 days to identify a new security provider or prove alternate security where the security provider is in default, bankruptcy, or otherwise determined to be insolvent by the County after which time the County may redeem the improvement guarantee.
- The applicant shall provide the County with specific benchmarks for completion of work and, as a term of the agreement, should the applicant fail to meet the self-imposed benchmarks the county may redeem the improvement guarantee.
- If in violation of any other provision of this Chapter 42, Henderson County Land Development Code, where the applicant shall been notified of the violation, and the applicant has been provided the period for remediation authorized by the approving agency, and where applicant is in continued violation, the County may consider this to be a breach of the agreement and call the improvement guarantee to prevent further violation of Chapter 42, Land Development Code.
D. Time Limits. The improvement guarantee is valid for a period of eighteen (18) months from the date of execution.
E. Extensions. The Planning Director, upon proof of difficulty, may grant an extension for a maximum of (1) one additional year. Improvements not completed within thirty (30) months shall be in breach with the requirements of this section and the improvement guarantee and any and all monies and accrued interest shall be forfeited by the applicant.
F. Second Improvement Guarantee. If the Planning Director has found that the applicant has made a good faith effort in completing the required improvements within the thirty (30) months the County may allow the applicant to execute a second improvement guarantee. Said agreement much be in the form of cash on deposit equal to the cost as described in §42-117A (Amount of Guarantee) of the remaining improvements. The County shall assess and administrative fee equal to ten (10) percent of the new improvement guarantee monies.
If an applicant of a subdivision is in violation of any County Regulations (including Soil Sedimentation and Erosion Control Permits) the County will not release the improvement guarantee prior to the expiration date unless the violations are corrected.
The County may charge for the cost for construction and project administration for any improvement guarantee that is executed.
