The purpose of performance guarantees is to ensure the proper construction, installation and maintenance until final acceptance of required streets, utilities, and other public improvements. To the greatest extent possible, the nature and duration of such guarantees should be structured to achieve this goal without adding unnecessary development costs.
Where the subdivider chooses to post surety in lieu of completion of those physical improvements shown on the approved development plan and/or final plat in order to allow recordation prior to completion and acceptance of all required public improvements, he shall enter into a subdivision agreement, approved as to content and form by the County attorney, with the County prior to recordation of the record plat by the agent. Said subdivision agreement shall be submitted to the agent no less than 15 days prior to the anticipated date of recordation. The agent shall provide to the subdivider a sample subdivision agreement during review of the final plat.
The period within which improvements or installations shall have been completed and inspected for acceptance shall be specified in the subdivision agreement. Unless otherwise provided by the agent, the period shall not exceed one year from the date of recordation of the record plat. In approving the time of performance of the subdivision agreement, the agent shall require a report containing the following information from the subdivider:
The issuance of residential building permits shall be directly related to the schedule for completion and acceptance by the County of all required public improvements. The agent and building official shall be satisfied that all required and necessary public improvements can reasonably be expected to be completed and accepted by the County within 90 days of the issuance of a building permit for such residential structure. In no case, unless specifically authorized by other provisions of this Code or regulations promulgated pursuant thereto, may a certificate of occupancy be issued for any residential structure prior to full and final completion and acceptance by the County of all required and necessary public improvements provided, however, that this requirement shall not be construed to include the final surface treatment and acceptance of public streets by the department of transportation. The subdivider shall be required to include a clause in the contracts for sale of lots in the subdivision which discloses this requirement.
[Ord. No. 05-33, 12-20-2005]
Where the subdivider wishes to record the record plat, but physical improvements and installations, including public and private streets, shown on the approved development plan and/or final plat have not been made, in whole or in part, the subdivider may, in accordance with § 15.2-2241(A)(5), Code of Virginia, enter into a subdivision agreement (as described above) with the County and submit performance surety in an amount sufficient for and conditioned upon the satisfactory construction or completion of said improvements or installations. Such physical improvements and installations shall include, but not be limited to, any street; curb; gutter; sidewalk; bicycle trail; drainage or sewerage system; waterline as part of a public system; other improvement intended for dedication to public use to be maintained by the County, the Commonwealth, some other public agency or a property owners' association; site-related improvements required by this or other chapters of this Code for vehicular ingress or egress; public access streets; structures necessary to ensure the stability of slopes; and stormwater management facilities. The amount of surety shall be acceptable to the agent and shall cover the full estimated cost of said improvements plus a reasonable allowance for administration, overhead, inflation and potential damage to existing improvements.
Performance surety shall be submitted in such form as shall be acceptable to the agent and County attorney as to format, sufficiency and manner of execution and shall have been posted to the satisfaction of the agent and County attorney prior to recordation of the record plat by the agent.
In those cases where performance surety has been posted and the required improvements or installations have not been completed within the terms of the subdivision agreement, the agent shall declare the subdivider to be in default and shall draw on the posted surety. After the funds or proceeds from the property have been received, the agent shall cause such improvements to be completed. The subdivider shall be fully and completely responsible and liable for the entire cost of completing the improvements, even when such cost exceeds the amount of surety.
If the funds or proceeds from the surety are insufficient to complete the improvements, the agent and County attorney shall proceed to obtain such funds from the subdivider, its successors or assigns including such reasonable costs as may be expended in the process.
If any funds remain after all improvements or installations are completed and accepted with all necessary fees paid and no defects are found therein which must be repaired, such remaining funds, less any such reasonable administrative or overhead costs which may have accrued, shall be returned to the subdivider within 180 days of final acceptance of the final improvement or installation.
Performance surety shall be released in accordance with the provisions of § 15.2-2245 of the Code of Virginia, provided, however, that "written notice of completion" shall consist of a set of "as-built" plans, a certificate of completion by a duly licensed engineer or surveyor, and a completed application form or letter to the agent requesting reduction or release of surety.
Upon completion of the required improvements other than public roads, the subdivider shall apply to the agent, in writing, for final inspection and approval for acceptance. After approval of the improvements by the agent, but before acceptance or the release of any surety, the subdivider shall enter into a maintenance agreement with the County and shall post surety in such form as may be approved by the County attorney, in the amount of 5% of the cost of the required improvements other than public roads or any other improvement for which the materials or workmanship are otherwise guaranteed for a period of at least one year. Such agreement shall guarantee correction by the subdivider of any defects in materials or workmanship in the installation of such improvements by the subdivider for a period of one year subsequent to approval and acceptance by the County.
Maintenance agreements and payments for public roads dedicated or intended for dedication to the department of transportation shall be in accordance with the policies and regulations of the department of transportation in effect at the time of acceptance.
In the event the board has accepted the dedication of any street for public use and such street, due to factors other than its quality of construction, is not accepted into the state system of highways, the subdivider shall furnish a maintenance and indemnifying agreement with surety in a form and amount acceptable to the agent and County attorney which is sufficient for and conditioned upon maintenance of said street until such time as it is accepted by the department of transportation.
Any best management practice utilized in the subdivision which requires regular or periodic maintenance in order to continue its functions, shall further have such regular or periodic maintenance ensured by the agent through a maintenance agreement with the owner or developer, or through some other mechanism which achieves an equivalent objective.