§ 5-1. Surities and improvements guarantees.

5-1.1

Agreement and security.

A.

In lieu of requiring the completion, installation, and dedication of all improvements prior to final plat approval, the county may enter into an agreement with the developer whereby the developer shall complete all required improvements. Once said agreement is signed by the developer and the security required herein is provided, the final plat may be approved if all other requirements of this ordinance are met. To secure this agreement, the developer shall provide any or a combination of the following guarantees to cover the costs of the uncompleted improvements:

(1)

Surety performance bond(s).

(a)

The developer shall obtain a surety bond from a surety bonding company authorized to issue said bonds in the state.

(b)

The bond shall be payable to the county and shall be in an amount equal to 150 percent of the entire estimated cost, as approved by the county, of installing all uncompleted improvements.

(c)

The bond amount and term shall be as approved by the planning commission.

(d)

The county attorney shall review the submitted bond and make a recommendation regarding its sufficiency to the planning commission. Agreement and bond shall be submitted to the planning department four weeks prior to the regularly scheduled planning commission meeting.

(2)

Cash or equivalent security.

(a)

The developer shall deposit cash, an irrevocable letter of credit or other instrument readily convertible into cash at face value, either with the county or in escrow with a financial institution. The use of any instrument other than cash shall be subject to approval of the planning commission. The amount of deposit shall be equal to 150 percent of the entire estimated cost, as approved by the county, of installing all uncompleted improvements.

(b)

If cash or other instrument is deposited in escrow with a financial institution as provided above, then the developer shall file with the county an agreement between the financial institution and himself guaranteeing the following:

(i)

That said escrow account shall be held in trust until released by the county and may not be used or pledged by the developer in 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 said improvements, the financial institution shall, upon notification by the county, immediately pay the funds deemed necessary by the county to complete the improvements, up to the full balance of the escrow amount, or deliver to the county any other instruments fully endorsed or otherwise made payable in full to the county.

(iii)

All instruments shall be reviewed by the county attorney and a recommendation regarding their sufficiency made to the planning commission. Agreement and financial instrument, other than cash, shall be submitted to the planning department four weeks prior to the regularly scheduled planning commission meeting.

B.

Duration of financial guarantees.

(1)

The duration of a financial guarantee shall be of a reasonable period to allow for completion and acceptance of improvements. In no case shall the original duration of the financial guarantee for improvements exceed one year.

(2)

All developments whose improvements are not completed and accepted 14 days prior to the expiration of the financial guarantee shall be considered to be in default. Said guarantee may be extended with the consent of the county, if such extension takes place prior to default.

(3)

If the developer requests an extension to their original financial guarantee duration, the developer shall notify all persons who have bought a lot or other interest in the development and shall provide proof of such notification prior to the submission of the request for extension to the county. In no case shall an extension be granted for more than 12 months at a time.

(4)

In no case shall the total duration of the financial guarantee for improvements exceed three years.

C.

Default.

(1)

Upon default, the surety bonding company or the financial institution holding the escrow account shall, if requested by the county, pay all or any portion of the bond or escrow fund to the county up to the amount deemed necessary by the county to complete the improvements. Upon payment, the county shall expend such funds or portion thereof to complete all or any portion of the required improvements. The county shall return any funds not spent in completing the improvements. Default on a project does not release the developer from liability and responsibility for completion of the improvements.

(2)

If a developer defaults on an agreement and performance guarantee with the county to install the required improvements outlined in the agreement, said developer will not be allowed to post another agreement and performance guarantee with the county for a period of five years.

D.

Release of guarantee security. The county may release a portion or all of any security posted as the improvements are completed and approved by the county.

(1)

Partial release. In order for the county to approve partial releases on a posted performance guarantee, the following is required:

(a)

A letter from the developer requesting a partial release;

(b)

Certified statement from an engineer for improvements completed to-date. The statement should contain a list of completed items, with the costs for those items to-date (plus the 150 percent mark-up) and with the total equaling the amount requested by the developer;

(c)

A new cost estimate of the remaining improvements, with the amount equal to the required 150 percent mark-up; and

(d)

Written evidence satisfactory to the planning director that the contractor who built or installed the required improvements or the developer guarantees said improvements for a period of one year from the date of acceptance of construction and/or installations (per section 5-3).

(2)

Full release. In order for the county to approve a full release on a posted performance guarantee, the following is required:

(a)

A letter from the developer requesting a full release;

(b)

Certified statement from an engineer of all improvements completed. The statement should contain a list of all completed items, with the costs for those items and with the total equaling the amount of posted guarantee; and

(c)

Written evidence satisfactory to the planning director that the contractor who built or installed the required improvements or the developer guarantees said improvements for a period of one year from the date of acceptance of construction and/or installations (per section 5-3).

(Ord. of 8-20-07(2))