Appendix D. IMPROVEMENT GUARANTEE AGREEMENT

The following templates shall be used (with modifications as appropriate) for all improvement guarantee submittals.

Improvement Guarantee Agreement Template

IMPROVEMENT GUARANTEE AGREEMENT
STATE OF NORTH CAROLINA
COUNTY OF BRUNSWICK

THIS AGREEMENT MADE AND ENTERED INTO this _______ day of ________, 20____ by and between _______________ (enter the developer's name here) hereinafter known as "the Subdivider", and the County of Brunswick County, hereinafter known as "the County of Brunswick."

WITNESSETH:
WHEREAS, the Subdivider is attempting to secure approval of a Final Plat of a proposed subdivision to be known as the _____________________________________ Subdivision to be located in Brunswick County, North Carolina; and

WHEREAS, a County ordinance entitled Unified Development Ordinance for the County of Brunswick as adopted by the Board of Commissioners for the County of Brunswick on the 1st day of May, 2007 , (and as subsequently amended), requires the completion of certain improvements prior to Final Plat approval; and

WHEREAS, said Ordinance also allows the County of Brunswick, at its discretion, to permit the Subdivision to (please check appropriate box below):

□ Surety Performance Bond       □ Irrevocable Letter of Credit

□ Cash Deposit       □ Other Instrument: (please name:______________)

readily convertible into cash at face value with the County of Brunswick to guarantee the completion of said required improvements; and

WHEREAS, the County of Brunswick desires to approve said Final Plat and, in lieu of requiring completion of all improvements prior to said approval, will accept from the Subdivider the filing of a (please check appropriate box below) :

□ Surety Performance Bond       □ Irrevocable Letter of Credit

□ Cash Deposit       □ Other Instrument: (please name:______________)

to guarantee and secure completion of said improvements.

 

IT IS THEREFORE, AGREED AS FOLLOWS:

1 The Subdivider will in a time period not to exceed 24 months, on or before the __________ day of ________________ 20___, complete as required the following improvements in the ______________________ Subdivision:

2 The Subdivider shall file with the County of Brunswick through the Director of Engineering Services a (please check appropriate box below):

□ Surety Performance Bond       □ Irrevocable Letter of Credit

□ Cash Deposit       □ Other Instrument: (please name:_____________)

securing and guaranteeing completion of said improvements by the required date; and

3 When the (please check appropriate box below):

□ Surety Performance Bond       □ Irrevocable Letter of Credit

□ Cash Deposit       □ Other Instrument: (please name:______________)

is filed and other requirements of said Ordinance are met, then the Staff will approve the Final Plat of the ________________ Subdivision please indicate Phase{s}, if applicable.

(provide or attach detailed list of all infrastructure improvements to be completed)

The Brunswick County Planning Board has, by appropriate Board action, caused this Agreement to be executed by the Director of Engineering Services or other authorized member and attested, and the ____________(Name of company) has, by appropriate action of and attested by its _________________ Secretary under corporate seal this the ______ day of ______, 20___.

DIRECTOR OF ENGINEERING SERVICES

Attest: BY ______________________________
Director of Engineering Services

Attest: BY ______________________________
(witness to Director of Engineering Service signature- print name here)

(Name of corporation)___________________

Attest: BY _____________________________
(President, Secretary, or other Authorized Member)

STATE OF NORTH CAROLINA
COUNTY OF BRUNSWICK

I, ______________________________, Notary Public for said State and County certify that ______________________________ (⇐ insert name of authorized member), personally came before me this day and acknowledge that (s)he is ____________ (⇐ insert position of authorized member) of ______________________________, a corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its ________________ (⇐ insert position of authorized member). Witness my hand and notarial seal, this the __________ day of __________, 20___.

______________________________

Notary Public
My Commission Expires:__________________

(This Agreement may be appropriately modified for execution by a subdivider who is not incorporated).

PERFORMANCE BOND TEMPLATE

PERFORMANCE BOND

STATE OF NORTH CAROLINA

COUNTY OF BRUNSWICK

KNOW ALL MEN BY THESE PRESENTS that we, _______________ (⇐ insert the name of the Subdivider) as Principal, and ___________________________(⇐ insert the Name of the Bonding Company) as Surety, are held and firmly bound unto the County of Brunswick, a political subdivision of the State of North Carolina, and a body politic and corporate, in the sum of $____________, lawful money of the United States of America, for the payment of which, well and truly be made, we, and each of us, bind ourselves and each of us, our successors and assigns, jointly and severally, by these presents.

THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT:

WHEREAS, the Principal has submitted a Final Plat of the subdivision known as ______________________ Subdivision (insert Phase/Section, if applicable), located in Brunswick County, North Carolina, for approval by the Brunswick County Planning Board, an agency of the County of Brunswick, which approval is a condition precedent to the right of said Principal to have said Final Plat registered in the Office of the Register of Deeds for Brunswick County; and

WHEREAS, the County of Brunswick is unable, pursuant to County ordinance, to approve said Final Plat of said Subdivision for registration until all required improvements are completed or until a guarantee of completion of said required improvements is filed with the County of Brunswick through the Director of Engineering Services; and WHEREAS, the Director of Engineering Services and the Principal have this date entered into an Agreement which said Board will approve Principal's Final Plat for the __________________ Subdivision prior to the completion of required improvements, and the Principal has agreed to file a Surety Bond in the amount of $_____ securing to the County of Brunswick, through said Board, the actual completion of said required improvements not to exceed 24 months from execution of this instrument and to be completed on or before the ___________ day of _______________, 20____, which Agreement is attached hereto as Exhibit A and made a part hereof; and

WHEREAS, the improvements required and agreed to be completed are set forth in said Exhibit A.

NOW THEREFORE, if the Principal shall fully comply with all the terms hereof, including the requirements of that Agreement attached hereto as Exhibit A and by which the Principal agrees to complete certain improvements on or before the __________ day of ___________, 20____, then this obligation shall be null and void; otherwise, it shall remain in full force and effect.

 

 

IN WITNESS WHEREOF the said Principal and Surety have hereunto set their hands and seals this the ____________ day of _________________, 20___.

 

 

Attest BY: ______________________________
Principal

 

 

Attest BY: _____________________________(SEAL)
President

 

 

______________________________
Surety

 

 

______________________________(SEAL)
Attorney-in-fact
(Power of Attorney attached)

IRREVOCABLE LETTER OF CREDIT TEMPLATE

IRREVOCABLE LETTER OF CREDIT
STATE OF NORTH CAROLINA
COUNTY OF BRUNSWICK

NO.______________________________

Name of Bank: ___________________
         (include branch, if any)

Address:_________________________

Date:____________________________

 

 

TO: The County of Brunswick

We hereby open our irrevocable credit in your favor available by your drafts at sight on us for a sum not exceeding $______ for the account of _____________________________________ hereinafter known as "Customer". When presented for negotiation, drafts must be accompanied by the signed statement of the Director of Engineering Services that drawing is due to default or failure to perform by Customer, the following improvements within a two-year period from the execution of this instrument in the _______________________________ Subdivision on or before the __________ day of _______________, 20___:

(Provide list of the required improvements)

The term of this irrevocable credit is either through and including the _______ day of _______, 20____ or upon written notice from the Director of Engineering Services that the required improvements have been timely completed, whichever is earlier.

Acting through the Director of Engineering Services, you will notify us when either of the following occurs:

1 The required improvements have been timely completed and the credit may be released; or

2 The Customer has failed to perform or is in default thereunder.

 

 

All drafts shown hereunder must be marked as follows:

The amount of any draft drawn under this credit must, concurrently with negotiation, be endorsed on the reverse side hereof, and the presentation of any such draft shall be a warranty by the negotiating bank that such endorsement has been made.

This Letter of Credit shall be transferable and/or assignable. This Letter of Credit, except as otherwise expressly provided herein, is governed by the Uniform Commercial Code in force in the State of North Carolina on the date hereof,

Very truly yours,

______________________________
(Name of Financial Institution)

Attest BY:______________________________
       (Authorized Signature)