HomeMy WebLinkAboutPerformance Guarantee Agreement_UDOSTATE OF NORTH CAROLINA
PERFORMANCE GUARANTEE AGREEMENT FOR IMPROVEMENTS
COUNTY OF HARNETT
Purpose. This Performance Guarantee Agreement for Improvements (“Agreement”)
is intended to allow developers of subdivisions to provide financial security to guarantee completion, installation and dedication of improvements required under the Harnett County Unified
Development Ordinance (“UDO”) in order to be able to record the final plat for a major subdivision prior to completion of all required improvements. This agreement is not executed for
the benefit of persons providing services or material to the subdivision, or for the benefit of persons buying lots or homes in the subdivision, or other possible third party beneficiaries.
Parties.
This Agreement is between the County of Harnett, North Carolina, a body politic and political subdivision of the State of North Carolina (“County”) and Carolina Lakes Development Company,
LLC (the “Developer”).
Subdivision. This Agreement applies to property the Developer is developing as Carolina Lakes Phase 10, Part A (in Lakeside Manor), (the “Subdivision”) located
in Harnett County, North Carolina.
Improvements. The Developer shall, on or before the 1st day of June, 2013, complete as required by the UDO the following improvements in the Subdivision
(the “Improvements”):
Improvement to be Completed Cost to Complete
Pavement $36,000
Water Line $14,000
Total Cost: $50,000
All Improvements shall be installed
in accordance with the UDO and all applicable codes, standards and specifications.
Security. To guarantee and secure the performance of Developer’s obligations under this Agreement,
the Developer will provide the County either: [ ] a surety performance bond, [ ] an irrevocable letter of credit, or [X] cash deposited with the County pursuant to the terms herein,
in the amount of $62,500, which represents 1.25 times the total cost of the
Improvements to be completed, as set forth above (hereinafter referred to as the “Security”). If the Developer provides a surety performance bond or an irrevocable letter of credit,
it must be in the form approved by County.
Approval of Final Plat. When the Security has been provided to the County and the other requirements of the Subdivision Ordinance are met,
then the County acting through its Director of Planning Services, will approve the Final Plat of the Subdivision for recording.
Release of Security. The County will release the Security
upon satisfactory completion of all Improvements covered by this Agreement, which shall be determined in the sole opinion of County. County may request that Developer obtain certification
of completion from a professional engineer prior to approval of the Improvements.
Default. The following conditions, occurrences, omissions or actions will constitute a default by
the Developer:
Developer’s failure to complete the installation of the Improvements covered by this Agreement on or before the time period set forth in Section 4 and Exhibit A above;
or
Developer’s failure to complete the improvements to the satisfaction of the County and/or DENR; or
Developer’s insolvency, the appointment of a receiver for the Developer, or the
filing of a voluntary or involuntary petition in bankruptcy with respect to the Developer; or
Foreclosure of any lien against the Subdivision property or a portion of the property, or
assignment or conveyance of the Subdivision property in lieu of foreclosure; or
Ownership of the property changes without the new owner assuming the obligation to install the improvements.
County’s
Rights Upon Default. When any event of default occurs, the County may call the surety performance bond, or draw on the letter of credit or cash deposit up to the full amount needed
to complete the Improvements, based on an estimate prepared by County. The County shall have the right to use the drawn funds to construct, install and correct any and all Improvements
covered by this Agreement, or to contract with a third party to do so. The Developer grants the County, its successors, assigns, agents, contractor and employees a nonexclusive right
to enter the Subdivision property for the purposes of constructing, installing and correcting any Improvements.
Cash Deposit as Security. If the Security granted to County by Developer is a cash deposit, the cash will be deposited in a County controlled account with the County’s Finance Department.
Developer shall not be entitled to any interest earned on the cash deposited with the County. In the event that the Developer shall default on its obligations hereunder as outlined
in paragraph 8 above, County shall have all rights upon default as outlined in paragraph 9 above. Upon written notice of the default of Developer from the County’s Subdivision Administrator,
the cash deposit shall be disbursed by the County’s Finance Department as ordered and directed by the Subdivision Administrator. If Developer shall complete the installation of Improvements
in a manner approved by the County, upon written authorization from the Subdivision Administrator, the cash deposit shall be returned to Developer.
Indemnification. The Developer expressly
agrees to indemnify and hold the County harmless from and against any claims, costs, and liability for injury or damage received or sustained by any person or entity in connection with
work performed under this Agreement. The Developer further agrees to aid and defend the County if the County is named as a defendant in an action concerning work performed under this
Agreement except where the action is brought by the Developer. The Developer is not an agent or employee of the County.
No Waiver. No waiver of any provision of this Agreement will
constitute a waiver of any other provision, nor will it constitute a continuing waiver, unless expressly provided for by a written amendment to this Agreement. Nor will any waiver of
any default under this Agreement constitute a waiver of any subsequent default or defaults of the same type. The County’s failure to exercise any right under this Agreement will not
constitute the approval of any wrongful act by the Developer.
Amendment or Modification. The parties to this Agreement may amend or modify this Agreement only by written instrument
executed by the parties.
Third Party Rights. No person or entity not a party to this Agreement will have any right of action under this Agreement.
Scope. This Agreement constitutes
the entire agreement between the parties, and no statement, promise or inducement not contained in this Agreement will be binding on the parties.
Severability. If any portion of this
Agreement is held to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other
portion of this Agreement, and the rights of the parties will be construed as if the invalid part was never a part of the Agreement.
Notice. Any notice required by this Agreement will
be considered effective when personally delivered in writing, or three (3) days after being deposited with the U.S. Postal Service, postage prepaid, and addressed as follows:
Developer: Carolina
Lakes Development Company, LLC
PO Box 1275
Matthews, NC 28106
County:
County of Harnett
PO Box 65
Lillington, North Carolina
Attn: Director of Planning Services
Immunity.
Nothing contained in this Agreement constitutes a waiver of the County’s sovereign immunity under any applicable state law.
Personal Jurisdiction and Venue. Personal jurisdiction
and venue for any civil action begun by either party to this Agreement, whether arising out of or relating to this Agreement or the security, will be considered proper only if initiated
in the General Court of Justice in Harnett County.
Conflict with Subdivision Ordinance. Nothing herein is intended to alter or modify the requirements of the Subdivision Ordinance.
If there is a conflict between the provisions of this Agreement and the UDO, the provisions of the UDO shall control and govern.
Dated this _______ day of ________________, 20___.
DEVELOPER:
COUNTY:
By:_______________________________ By:___________________________
Name:____________________________ Name:________________________
Title:_____________________________ Title:_______________
__________