The following sections contain provisions relating to performance guarantees.

(Ord. No. 17-O-13, 8-8-2017)

The town shall require adequate financial assurance consisting of a performance guarantee agreement and a security, in a form and manner that is approved by the town attorney, for the construction of required public improvements. Such performance guarantees shall conform to the following standards:

(a)

Improvements subject to guarantee requirements. Public improvements subject to performance guarantee requirements include, but are not limited to, streets, curbs, gutters, sidewalks, trails, reforestation, storm drainage facilities and associated grading, sanitary sewage facilities, waterlines, property markers, streetlights, street trees, highway signs and markers and other relevant features shown on or described in a site plan, single lot development plan, special exception, preliminary subdivision plan, final subdivision plat, proffer associated with an official zoning map amendment, or generalized development plan.

(b)

Form of performance guarantee. The performance guarantee for public improvements shall consist of:

(1)

Performance guarantee agreement. A performance guarantee agreement between the owner, owner's agent, or developer and the town to construct and maintain until acceptance such required physical improvements as are located within public rights-of-way or easements or as are connected to any public facility in form and substance as approved by the town attorney; and,

(2)

Security. A security, taking one or more of the following forms, as specified by the town:

a.

Cash or certified check deposited with the Town of Herndon

b.

Guarantee from a lender on the town's approved list of local financial institutions based upon a cash deposit, in a form acceptable to the town attorney;

c.

Irrevocable letter of credit from a northern Virginia banking institution in a form acceptable to the town attorney; or

d.

Performance bond from a security institution approved by the town's director of finance in a form acceptable to the town attorney.

(c)

Time of posting. All parties shall sign a performance guarantee agreement and the associated security posted by the owner, owner's agent, or developer prior to the final administrative approval of any site plan or single lot development plan by the zoning administrator, or prior to the recordation of any final subdivision plat.

(d)

Amount. The amount of the security is the full amount of the cost estimate plus contingencies, engineering costs and inflation. It shall include the total estimated cost of the required public improvements as determined by the then current Fairfax County Table of Public Improvement Costs or by the town director of public works if the improvements are not set forth in the table. In any event, the amount of such certified check, cash escrow, bond, or letter of credit shall not exceed the total of the estimated cost of construction based on unit prices for new public or private sector construction in the locality and a reasonable allowance for estimated administrative costs, inflation, and potential damage to existing roads or utilities, which shall not exceed ten percent of the estimated construction costs. "Such facilities," as used in this section, means those facilities specifically provided for in this section.

(e)

Duration. The performance guarantee agreement and security shall be provided for completion of all work covered thereby within the time to be determined by the applicant, which time may be extended by the zoning administrator upon written application by the owner, owner's agent, or developer, signed by all parties (including security, if appropriate) to the original agreement.

(f)

Request for early site occupancy. During certain seasons of the year, or due to the steps in the construction process, it may be impractical for some public improvements to be installed or totally completed (e.g., the final lift of asphalt on a street, street trees, and the like) prior to occupancy or use of the property. When early occupancy is requested in writing prior to the completion of such improvements, the zoning administrator may allow early site occupancy when the following requirements are satisfied. As part of the procedure for the request for site occupancy, town staff will inspect the site and prepare a provisional report of the site inspector and zoning conformance findings which is referenced under these requirements. All the following requirements must be met:

(1)

Written request. A written request shall be made at least 30 days in advance of the requested occupancy date; the written request shall include a list of items not completed, documentation for how the items will be completed (such as contracts), the timeline for completion of the items, and justification for delay in completion of the items;

(2)

Provisional report. Based on a provisional report prepared by the town staff, staff may determine that the site can function without the subject improvements without creating a threat to health, safety, and welfare, and without detrimental impacts to the surrounding properties or town service provision in the area;

(3)

Response to report. After issuance of the provisional report by the town staff:

a.

The applicant's timeline for completion of all improvements shall be revised, as needed to conform with the report; and,

b.

Any deficiencies that pose a threat to health, safety, and welfare, or that pose detrimental impacts to the surrounding properties or town service provision in the area shall be corrected and shall be documented by the staff as corrected before occupancy is permitted.

(4)

Placement of utility lines. Unless specifically waived by the approving authority as part of the site plan or subdivision site plan approval, overhead utility wires that are required to be placed below ground shall be placed below ground prior to early occupancy.

(5)

Re-inspection and update. Upon request by the applicant, or on or after the date of anticipated completion of improvements as specified in the original written request by the applicant, town staff may re-inspect the property and update the provisional report described in paragraph (2), above. If the applicant does not adhere to the time for completion of improvements:

a.

Zoning violation proceedings may commence in accordance with section 78-170.3.

b.

A fee will be charged for each inspection and re-inspection necessitated by the early occupancy request in accordance with section 78-152.2(b)(3)c.

c.

Any future town approvals for early occupancy prior to completion of all required improvements within the associated development may cease.

(6)

Uniform Building Code requirements. These provisions do not relieve the applicant from the responsibility for meeting all applicable requirements of the Uniform Statewide Building Code prior to building occupancy.

(g)

Release. Upon satisfactory completion of the following requirements, the town manager may, following a recommendation in the form of a release from the directors of community development, finance, and public works, release the security in accordance with the standards in Code of Virginia § 15.2-2245, (as amended).

a.

Upon completion of all physical improvements shown on the approved plan, whether on-site or off-site, including acceptance of streets and other improvements in any dedicated right-of-way, the applicant may initiate the release of the security by a written request for a final inspection by the town. A status report showing the pass/fail list of cumulative items outstanding shall be sent to the applicant within 30 days of the receipt for release of the security. The applicant shall remedy the items on the list at the applicant's expense within 30 days after the receipt date of the list or other time as prescribed by the inspector. The applicant may then re-initiate the release of the security, as above. The town staff shall issue a final inspection report, provided that all physical improvements covered by the security have been completed and accepted.

b.

The "as-built" site plan shall be approved by the town and accepted.

(h)

Filing fee. A filing fee, tabulated in accordance with the fees in section 78-152.2(b)(3)c. shall be paid prior to submittal of a performance guarantee, request for an extension of time, request for reduction of a performance guarantee, or a request to replace a performance guarantee.

(i)

Indemnity insurance. The owner, owner's agent, or developer shall furnish such insurance as is deemed necessary by the town, and approved as to form by the town attorney, to indemnify and hold harmless the town from any and all liability arising by reason of the unimproved conditions of the development that may arise or grow out of the construction or installation of such public improvements. The insurance shall be of such duration as determined by the town, but shall in no case be allowed to expire earlier than the effective period of any performance guarantee agreement. A copy of the insurance policy shall be filed in the office of the zoning administrator.

(j)

Forfeiture. Repayment of the performance guarantee may be forfeited under the following circumstances:

(1)

Failure to install improvements. If an owner, owner's agent, or developer fails to properly install all required improvements within 30 days of the third zoning violation issued in accordance with subsection (6)e. of this section, or other time as determined by the zoning administrator, the town shall give 30-days written notice to the owner, owner's agent, or developer (if different) by certified mail, after which time the town may draw on the performance guarantee and use the funds to complete the required improvements. The performance guarantee agreement may provide for more timely action in the event of a threat to public health or safety.

(2)

Report of expenditures. After completing the required improvements, the town shall provide a complete accounting of the expenditures to the property owner, owner's agent, or developer (as appropriate) and, as applicable, refund all unused security deposited, without interest, to the party posting the guarantee. If the costs to complete the required improvements are greater than the amount of the security, the town may assess the additional costs to the affected property owner(s) or responsible association, which assessment shall constitute a lien upon the property and shall be collected in the manner of tax assessments.

(Ord. No. 17-O-13, 8-8-2017)

The town shall require adequate financial assurance consisting of a performance guarantee agreement and a security, in a form and manner that is approved by the town attorney, for the construction of certain required private (on-site) improvements, including erosion and siltation control devices, tree retention and protection measures, and required landscaping, as well as for the reconstruction of existing on-site or nearby public improvements that could be damaged during the development process. Such performance guarantees shall conform to the following standards.

(a)

Performance guarantees for other features. In addition to the performance guarantees required for private improvements in section 78-120.2, above, the town may require the owner, owner's agent, or developer to post a performance guarantee for open space set-asides, and on-site private improvements such as off-street parking and loading, landscaping, exterior lighting, and other relevant features shown on or described in a site plan, single lot development plan, special exception, preliminary subdivision plan, final subdivision plat, proffer associated with an official zoning map amendment or generalized development plan.

(b)

Form. The form for a performance guarantee posted for a private improvement shall be in accordance with the standards in section 78-120.1(b), form of performance guarantee. The zoning administrator may, in certain instances, allow a single performance guarantee to be posted for both public and private improvements associated with a single development.

(c)

Time of posting. The time of posting for a performance guarantee for private improvements shall be in accordance with the standards in section 78-120.1(c), time of posting.

(d)

Amount. The security amount for private improvements shall be as follows:

(1)

Erosion and siltation control devices.

a.

For industrial and commercial development: $300.00 per acre, with a minimum of $1,000.00.

b.

For mixed use and residential development: $175.00 per lot, with a minimum of $1,000.00.

(2)

Tree protection and retention.

a.

For tree protection: $3.00 per linear foot of tree protection fencing or other approved demarcation of the limits of clearing; and

b.

For tree retention, the amount of the security will be established by the zoning administrator, based upon a determination of which trees are at risk.

(3)

Required landscaping. The amount of the security for required landscaping shall be based on Table 78-120.2(d)(3): Security for Required Landscaping.

(4)

Protection of existing public improvements. The amount of the security shall include the total estimated cost of replacement for all existing on-site and nearby public improvements that could be damaged during development, as determined by the director of public works utilizing the current Fairfax County Table of Public Improvement Costs.

(5)

Other private improvements. The zoning administrator shall estimate the amount of the security for any other private improvements based on recommendations from the director of public works.

(e)

Duration. The duration of the performance guarantee agreement for private improvements shall be in accordance with the standards in section 78-120.1(e), duration.

(f)

Request for early site occupancy. During certain seasons of the year, it may be impractical for some private improvements, such as off-street parking and loading or landscaping, to be installed or completed prior to occupancy or use of the property. When early site occupancy is requested in writing prior to the completion of such improvements, the zoning administrator may allow early site occupancy when all of the following requirements are satisfied. As part of the procedure for the request for site occupancy, town staff will inspect the site and prepare a provisional report of the site inspector and zoning conformance findings which is referenced under these requirements. All of the following requirements must be met:

(1)

Written request. A written request shall be made at least 30 days in advance of the requested occupancy date; the written request shall include a list of items not completed, documentation for how the items will be completed (such as contracts), the timeline for completion of the items, and justification for delay in completion of the items;

(2)

Provisional report. Based on a provisional report prepared by the town staff, staff may determine that the site can function without the subject improvements, without creating a threat to health, safety, and welfare, and without detrimental impacts to the surrounding properties or town service provision in the area;

(3)

Response to report. After issuance of the provisional report by the staff:

a.

The applicant's timeline for completion of all improvements shall be revised, as needed to conform with the report; and

b.

Any deficiencies that pose a threat to health, safety, and welfare, or that pose detrimental impacts to the surrounding properties or town service provision in the area shall be corrected and shall be documented by the staff as corrected before occupancy is permitted.

(4)

Re-inspection and update. Upon request by the applicant, or on or after the date of anticipated completion of improvements as specified in the original written request by the applicant, town staff may re-inspect the property and update the provisional report described in paragraph (2), above. If the applicant does not adhere to the time for completion of improvements:

a.

Zoning violation proceedings may commence in accordance with section 78-170.3.

b.

A fee will be charged for each inspection and re-inspection necessitated by the early occupancy request in accordance with Table 78-152.2(b)(3)c.

c.

Any future town approvals for early occupancy prior to completion of all required improvements within the associated development may cease.

(5)

Uniform building code requirements. These provisions do not relieve the applicant from the responsibility for meeting all applicable requirements of the Uniform Statewide Building Code prior to building occupancy.

(g)

Release. The release of performance guarantees shall be subject to the following:

(1)

Erosion and sedimentation control devices. Upon satisfactory completion of the development, and issuance of a zoning inspection permit, the owner, owner's agent, or developer may apply in writing for a release of the unexpended or unobligated portion of such security.

(2)

Tree protection and retention measures.

a.

Upon satisfactory completion of the development, the owner, owner's agent, or developer may apply in writing for a release of the tree protection and tree retention security. The community forester shall make the determination concerning the degree of damage to any tree, whether replacement of any damaged tree is required, or the corrective measures to be taken to ensure the survival of damaged trees. The community forester shall notify the owner, owner's agent, or developer if any trees must be repaired or replaced because of the damage caused by the stress of construction or shall refund one-half of the security if no repairs or replacements are needed.

b.

Upon notification by the community forester that repairs or replacements are to be made, the owner, owner's agent, or developer shall make the required repairs and replacements and shall notify the community forester when the repairs and replacements are complete. The community forester shall inspect the repairs and replacements and shall notify the owner, owner's agent, or developer when it is determined that the required repairs and replacements have been adequately performed. One-half of the security shall then be refunded.

c.

The remaining one-half of the security shall be held for a period of three years from the date of the community forester's notification to the owner, owner's agent, or developer that the required repairs or replacements have been completed or at such time as may be determined by the community forester. The purpose of retaining this portion of the security is to ensure that trees, which are damaged by construction, but where injury becomes apparent after construction is completed, will be repaired or replaced. At the end of this three-year period, the owner, owner's agent, or developer may apply to the town in writing for a release of the unexpended or unobligated portion of such security. If the protected trees have survived in good health, based upon the opinion of the community forester, the town shall release the security. The security shall not be discharged until all required repairs or replacements have been made.

d.

If the owner, owner's agent, or developer refuses to comply with the requirements of the community forester, the town may, at its option, have the work performed by others or by its own forces in accordance with section 78-120.2(i), forfeiture. All costs incurred by the town shall be reimbursed from the security.

e.

If the owner, owner's agent, or developer has during the two-year period, sold all or a portion of the real estate subject to the agreement, the original owner, owner's agent, or developer shall continue to be responsible for all measures required by the agreement and for all trees subject to the performance guarantee agreement. The original owner, owner's agent, or developer shall take the measures, and repair or replace trees as required by the community forester.

(3)

Required landscaping. Upon satisfactory installation of all required landscaping, the owner, owner's agent, or developer may apply in writing for a release of up to 80 percent of the security. The town shall retain an additional 20 percent of the security for a period of one year from the date of the first release to ensure continued functioning and maintenance of all required landscaping. Following a passing inspection of the required landscaping by the town one year after the initial release of the security, the owner, owner's agent, or developer may request in writing a release of the unexpended or unobligated remaining portion of such security.

(4)

Security to protect on-site or nearby public improvements. Upon satisfactory completion of the development, the owner, owner's agent, or developer may apply in writing for a release of the unexpended or unobligated portion of such security.

(5)

Other private improvements. Following a passing inspection of the private improvements by the town, the owner, owner's agent, or developer may request in writing a release of the unexpended or unobligated remaining portion of such security. The town shall release such security consistent with the provisions of section 78-120.1(g), release.

(h)

Filing fee. A filing fee, tabulated in accordance with the fees in Table 78-152.2(b)(3)c. shall be paid prior to submittal of a performance guarantee, an extension of time, request for reduction of a performance guarantee, or a request to replace a performance guarantee.

(i)

Forfeiture. Forfeiture of security shall be in accordance with the requirements and standards described in section 78-120.1(j).

(Ord. No. 17-O-13, 8-8-2017)