016-22 (OrdAmendmentChapters143&144&165(MonetaryGuaranties&PerformnceAgreemnt))Action:
PLANNING COMMISSION: August 17, 2022 Recommended Approval
BOARD OF SUPERVISORS: September 14, 2022 Approved
RESOLUTION
AN ORDINANCE AMENDING
THE FREDERICK COUNTY CODES
CHAPTER 143 STORMWATERJEROSION AND SEDIMENT
CHAPTER 144 SUBDIVISION OF LAND AND
CHAPTER 165 ZONING ORDINANCE
CHAPTER 143
STORMWATERIEROSION AND SEDIMENT CONTROL
§143-240 PERFORMANCE BONDS
CHAPTER 144
SUBDIVISION OF LAND
ARTICLE VII
IMPROVEMENTS AND GUARANTIES
§144-40 GENERAL REQUIREMENTS
§144-41 FORMS OF GUARANTIES
§144-42 AMOUNTS OF GUARANTIES
§144-43 PERIOD OF GUARANTIES
§144-44 REDUCTION OF GUARANTIES
§144-45 MAINTENANCE BONDS
CHAPTER 165
ZONING ORDINANCE
ARTICLE VIII
DEVELOPMENT PLANS AND APPROVALS
PART 802
SITE PLANS
§165-802.04 REQUIRED IMPROVEMENTS
Res # 016-22
WHEREAS, the Board of Supervisors has considered an amendment of Chapter 143
Stormwater/Erosion and Sediment Control, Chapter 144 Subdivision of Land, and 165 —
Zoning Ordinance, to codify the County's Monetary Guaranty and Perforniance
Agreenxent policy, ensuring the monetary guaranties and performance agreements for
various land development processes within Frederick County are reviewed, and approved
in conformance with the policy; and
WHEREAS, the Planning Commission held a public hearing on the ordinance
amendment on August 17, 2022, and recommended approval; and
WHEREAS, the Board of Supervisors held a public hearing on this ordinance
amendment on September 14, 2022; and
NOW, THEREFORE, BE IT RESOLVED that the Frederick County Board of
Supervisors adopts the attached ordinance to amend Chapter 143 Stonnwater/Erosion and
Sediment Control, Chapter 144 Subdivision of Land, and Chapter 165 Zoning Ordinance,
to codify the County's adopted Monetary Guaranty and Performance Agreement policy,
ensuring the monetary guaranties, bonds, and performance agreements for various land
development processes within Frederick County are reviewed, and approved in
conformance with the policy.
Passed this 14h day of September 2022 by the following recorded vote:
Charles S. DeHaven, Jr., Chainnan Aye Blaine P. Dunn Aye
Shawn L. Graber Aye Judith McCann -Slaughter Aye
Josh Ludwig Aye Robert W. Wells Aye
J. Douglas McCarty Aye
A COPY A
Michael L. Bollho
Frederick County.
Res # 016-22
COUNTY of FREDERICK
Department of Planning and Development
540/ 665-5651
Fax: 540/ 665-6395
MEMORANDUM
TO: Frederick County Board of Supervisors
FROM: M. Tyler Klein, AICP, Senior Planner
SUBJECT: Ordinance Amendments — Monetary Guaranty and Performance Agreements
DATE: August 18, 2022
Proposal:
These are proposed amendments to Chapter 143 — Stormwater/Erosion and Sediment Control,
Chapter 144 — Subdivision of Land and Chapter 165 — Zoning to codify the County's adopted
Monetary Guaranty and Performance Agreement policy, ensuring the monetary guaranties,
bonds, and performance agreements for various land development processes within Frederick
County are reviewed, and approved in conformance with the adopted policy. The Board of
Supervisors adopted the Monetary Guaranty and Performance Agreement policy on May 25,
2022.
Current Ordinance Standards:
Monetary guaranties are required for public and certain other physical improvements as shown
upon subdivision plats, site plans, or other documents. Improvements include, road, curb,
gutter, sidewalk, trails, storm drainage, traffic signalization and control, landscaping, erosion
and sediment control, and any other site -related improvements required by Frederick County
Ordinances for vehicular ingress and egress, for public access roadways, for structures
necessary to insure stability of critical slopes, and for stormwater management facilities.
The County is authorized to require monetary guaranties (also referred to as "bonds",
"performance bonds", or "monetary guaranties"), as defined in Chapter 143, 144, and 165 of
the County Code, in conjunction with the approval of subdivisions, erosion and sediment
controls, stormwater management facilities, site improvements, and items specifically
proffered, and any similar items, all in accordance with the Subdivision Ordinance, the Zoning
Ordinance, and Virginia Code Sections 15.2-2241, 15.2-2286, 15.2-2299, 15.2-2309, and 62.1-
44.15:57.
Meetings Summary:
The Board of Supervisors received a presentation on these ordinance amendments on July 13,
2022 and offered no comments. The item was sent forward for public hearings.
OA — Monetary Guaranty and Performance Agreements
August 18, 2022
Page 2
The Planning Commission held apublic hearing on August 17, 2022 and offered no comments.
There were no members of the public who spoke. The proposed amendments were sent forward
with a recommendation for approval (Commissioners Brannon & Thomas - Absent).
Conclusion and Requested Action:
The attached document shows the existing ordinance with the proposed changes as drafted by
Staff. Following a public hearing on these proposed ordinance amendments, action by
the Board of Supervisors is requested.
MTK/pd
Attachments: 1. Revised ordinance with additions shown in track changes.
2. Monetary Guaranty and Performance Agreement Policy
3. Resolution
Chapter 143 — Stormwater/Erosion and Sediment Control
§ 143-240 Performance bonds.
A. Prior to the issuance of any permit, the owner or permittee shall execute and file with the Administrator
a Frederick County performance agreement
and ^^monetary guaranty o ,.able let+e - of e --edit (er- other- f,,f of „ pe-fafi,, nee ben
as ^d by toe G,,ffn, . a4te e. ,in such form as is in accordance with the Fr-ede -iek
BondingTkalieymonetary guaranty and performance agreement policy adopted by the Board)and
in an amount determined in accordance with the Frederick County bond estimate worksheet which shall
be equal to the approximate total cost of providing erosion and sediment control and stormwater quality
and quantity improvements as required by this chapter and shown on the approved plans in addition to a
25% contingency of the total bond amount. _
B. The Frederick County erosion and sediment control and stormwater management performance
agreement and monetary guaranty is to ensure that measures could be taken by the
County at the applicant's expense should he fail, after proper notice as outlined in § 143-225, within the
time specified to initiate or maintain appropriate actions which may be required of him by the permit
conditions because of his land -disturbing activity. If the County takes such action upon such failure by
the applicant, the County may collect from the applicant for the difference should the amount of the
reasonable cost of such action exceed the amount of the security held.
C. Upon successful completion of the land -disturbing activity, to include submittal of the construction as -
built drawings of permanent stormwater management facilities described in § 143-165 and prior to
termination of the VSMP permit, the owner or permittee must provide written notification to the County_
in accordance with the Bonding Policy. Upon verification of adequate stabilization of land -disturbing
activity in the project or any section thereof, the Administrator shall r"ee, „+„„+„ t4e
.take action upon
the monetary guaranteey and performance agreement in accordance with the Bonding Policy.
D. If the applicant/owner fails to comply with the approved SWPPP as documented through the site
inspections described herein, and after proper notification, the Administrator may determine that the
performance agreement is in default and the onetary guaranty may be
used to execute the plan.
Reference: § 62.1-44.15:34; 9 VAC 25-870-104D.
Chapter 144 — Subdivision of Land
Article VII
Improvements and Guarantees
§ 144-40 General requirements.
All improvements shown on the subdivision design plan and the final subdivision plats shall be provided by
the applicant. In order to obtain approval of the final subdivision plats, all improvements must be constructed
or sufficient guaranties and performance agreements must be provided in such amount and such form as
is in accordance with the monetary Lyuaranty policv and performance agreement nolicv adopted by the
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Chapter 165 — Zoning Ordinance
Article VIII
Development Plans and Approvals
Part 802
Site Plans
§ 165-802.04 Required improvements.
A. All improvements and construction on the site shall conform with the approved site plan or illustrative
sketch plan and the requirements of the Frederick County Code. [Amended 8-12-20151
B. The Zoning ^ dministfate Director of Planning and Development may require a befid w44 s,,.-e�y or
the - aeeeptablemonetary 11--.4e 2 aranty and performance agreement in accordance with the
monetary guaranty policy adopted by the Board,' endiN� n„':,., to insufe ensure the completion of
required improvements.
MONETARY GUARANTY AND PERFORMANCE AGREEMENT
POLICY
1. Purpose and Authorization
Various Land Development processes within Frederick County require the establishment of a
monetary guaranty. This policy outlines the monetary guaranty expectations and requirements.
All monetary guaranties must be processed through the Department of Planning and Development
and relevant documents will be provided to the appropriate department for their review. Hereafter,
any references to "the Director" shall mean the Director of Planning & Development or their
designee and any references to "developer" shall mean any person or entity that subdivides,
engages in earth disturbance, or constructs on a property, whether as an owner, a contractor, or
otherwise, and that is required to post a monetary guaranty under applicable state/county
laws/ordinances for such activity. On July 1st, 2022, this policy and associated changes to the
monetary guaranty management fees became effective. These fees and this policy were approved
by the Board of Supervisors at their June XX, 2022 meeting.
The County is authorized to require monetary guaranties, as defined in Chapter 143, 144, and 165
of the County Code, and herein referred to as "bonds", "performance bonds", or "monetary
guaranty or guaranties", in conjunction with the approval of subdivisions, erosion and sediment
controls, storm water management facilities, site improvements, and items specifically proffered, and any
similar items, all in accordance with the Subdivision Ordinance, the Zoning Ordinance, and
Virginia Code Sections 15.2-2241, 15.2-2286, 15.2-2299, 15.2-2309, and 62.1-44.15:57.
Monetary guaranties shall be required for public and certain other physical improvements as
shown upon subdivision plats, site plans, or such other documents as provided herein. Such
improvements shall include, without limitation, road, curb, gutter, sidewalk, trails, storm
drainage, traffic signalization and control, landscaping, erosion and sediment control, and any
other site -related improvements required by Frederick County Ordinances for vehicular ingress
and egress, for public access roadways, for structures necessary to insure stability of critical
slopes, and for stormwater management facilities. Notwithstanding the foregoing, the Director
may waive the requirement for a monetary guaranty for a site plan which does not contain any
improvements eligible for public maintenance if they determine that the satisfactory completion
of construction of improvements shown upon such site plan can be enforced pursuant to
ordinances regulating building permits and occupancy permits.
A Performance Agreement, which shall be supported by an acceptable form of monetary
guaranty, shall be required on projects to obligate the developer to construct required
improvements pursuant to approved subdivisions, site plans, or proffer conditions in a timely
manner. Such Agreement shall specify the manner and date by which the required improvements
shall be completed. An agreement format approved by the Monetary Guaranty Review Group will
be provided by the Department of Planning and Development to all developers requesting same
for use in preparation of a Performance Agreement. If the developer acts, or fails to act, in a
manner which would constitute a breach of the Performance Agreement, or all the noted
improvements are not completed within the specified time period and no extension has been
obtained or replacement agreement and monetary guaranty submitted and approved with a new
1
improvements completion date, the developer shall be in default of the Performance Agreement.
The Monetary Guaranty Review Group is hereby established to administer the provisions of this
policy.
A. Monetary Guaranty Review Group Members (or their designees)
a. County Administrator
b. Treasurer
c. Director of Public Works
d. Director of Planning & Development
B. Authority of the Monetary Guaranty Review Group
a. Review new monetary guaranties and agreements, monetary guaranty extensions,
monetary guaranty substitutions, monetary guaranty reductions/releases, and
action resulting from defaults
b. Establish/update standard monetary guaranty and agreement form
c. Conduct other evaluations established herein
C. Any submissions to the Monetary Guaranty Review Group shall be made to the Director.
2. General Requirements
A. Acceptable Performance Bonds
Corporate Surety Bond: A corporate surety bond in a face amount equal to the
approved cost estimate shall be furnished by an insurance company licensed to
transact fidelity and surety insurance in Virginia. The ability of the insurance
company to provide satisfactory performance guarantee will be assessed by the
Monetary Guaranty Review Group in accordance with criteria reported in the most
recent edition of the Best's Key Rating Guide (Best's) and the most recent annual
revision of the U.S. Department of Treasury Fiscal Service Circular 570 (the
Treasury Circular). Corporate surety bonds shall be accepted only from sureties
listed in Best's:
a) with a rating of Level A or better; and,
b) in a financial size category of Class VIII, or higher and,
Such corporate surety bonds shall be in amounts not exceeding:
i. those limitations identified in the Treasury Circular, nor
ii. 1.5% of the minimum Adjusted Policyholders' Surplus for the
financial size category as listed in Best's.
Such ratings and other qualifications must be maintained for the life of the
corporate surety bond or the corporate surety bond shall be replaced by adequate
replacement monetary guaranty with 60 days of a written request by the
Treasurer.
The corporate surety bond shall contain the conditions of automatic renewal
providing that the corporate surety bond will automatically be renewed for
additional periods of at least six months unless the Director is notified in writing,
by certified mail, with return receipt requested, at least ninety (90) days in
advance of the present or future expiration date, that the issuing surety does not
intend to renew such corporate surety bond.
2. Cash Escrow: A cashier's check or certified check in an amount equal to the
approved cost estimate, and, accompanied by a W- 9 or Substitute W-9 form, shall
be submitted, to be deposited with the County Treasurer, in an interest bearing
account with full financial accountability provided by the Director of Finance
through a separate Performance Bond Fund. All cash escrows held shall be
maintained as an individual monetary guaranty from the developer as to principal
and accumulated interest but may be pooled by the County for investment
purposes with accrued interest allocated to each monetary guarantee in accordance
with County allocation policies. The Treasurer shall be entitled to retain a
reasonable amount, not exceeding 5% of the interest accrued, to cover the cost of
administering the account. Upon approval for release of the cash escrow as
provided herein, the Treasurer shall be authorized to release the cash escrow
(principal plus accrued interest less allowable cost of administration) and disburse
the funds. In addition to the administrative fee, and to avoid extra administrative
expenses, the County may retain de minimus interest amounts, not to exceed
$5.00, for each monetary guaranty, that may not yet have been credited by the
County's bank/financial institution at the time of refund of a cash escrow amount.
3. Letter of Credit. A letter of credit in an amount equal to the approved cost estimate
shall be furnished by a banking institution. Only letters of credit meeting the
following minimum conditions shall be accepted:
a) The banking institution shall:
i. be insured by the Federal Deposit Insurance Corporation (FDIC);
ii. have offices and license to engage in banking in Virginia;
iii. have a SNL Financial (f/k/a Thompson Reuters Bank Insight)
3
national rating ("Bank Rating") of at least 35; and,
iv. confirm that the total letter of credit exposure of the County at the
banking institution is limited to no more than 50 percent (50%) of
the institution's equity capital.
b) The letter of credit shall contain the conditions of automatic renewal
providing that the letter of credit will automatically be renewed for
additional periods of six months unless the Director is notified in writing,
by certified mail, with return receipt requested, at least ninety (90) days
in advance of the present or future expiration date, that the issuing bank
does not intend to extend such letter of credit.
Such ratings and other qualifications must be maintained for the life of the letter
of credit or the letter of credit shall be replaced by adequate replacement letter of
credit with 60 days of a written request by the Treasurer.
The County's Monetary Guaranty Procedure Package contains templates for the
corporate surety bond and the letter of credit. In some instances, modification of the
template may be appropriate, either because of the nature of the project or a request by
the developer. Any decision to modify the template is solely in the discretion of the
County and also requires approval by the County Attorney.
It is also the responsibility of the Director to ensure that the entries on the template form
are accurate and complete. The entry for property description and name of the project is
subject to review and written approval by the County Attorney. To expedite this review,
in lieu of sending the completed instrument to the County Attorney, staff may forward
the specific description language to the County Attorney for approval in advance. Any
reissued or replacement instrument shall contain the previously approved description
language, unless the County Attorney has approved revised language.
B. Establishing a Performance Agreement
A Performance Agreement with a maximum term of five (5) years, between the
Board of Supervisors and the developer, shall be required. If construction of the
subject project is not completed within the initial Performance Agreement term,
the monetary guaranty amount may require adjustment and subsequent
reconsideration and review by the Monetary Guaranty Review Group. A complete
Performance Agreement application shall include the following:
a) Fee check
b) Fully executed Performance Agreement
c) A monetary guaranty in an amount equal to the approved cost estimate (or
estimates), guaranteeing completion of the Performance Agreement.
4
d) Letter or copy of approved permit from the relevant department certifying
the plans are approved and cost estimate amounts are appropriate.
3. Extensions/Rebondin2, Additions, and Reductions
A. Extensions and Rebonding of Performance Agreements
1. It shall be the sole responsibility of the developer to keep current on its obligations
under the Performance Agreement.
2. Approximately sixty (60) days prior to the date set in the Performance Agreement for
completion of the improvements, the Monetary Guaranty Review Group may
review the project records to determine if the developer has initiated the process
for final release of the Performance Agreement and associated monetary guaranty
and to determine if the Performance Agreement and associated monetary
guaranty may reasonably be eligible for release within sixty (60) days. If the
Monetary Guaranty Review Group determines that the project Performance
Agreement and monetary guaranty is not reasonably expected to be released by
the date set in the Performance Agreement for completion of the improvements, staff
will contact the developer and entity which issued the monetary guaranty
regarding the status of the Performance Agreement and monetary guaranty. If the
Performance Agreement and monetary guaranty cannot be released or if no
extension agreement and monetary guaranty extension have been approved by the
date set in the Performance Agreement for completion of the improvements, the
developer shall be in default under the Performance Agreement.
a) Except as provided in this paragraph, no Performance Agreement will be
extended beyond five (5) years from the date of the original Agreement.
However, upon recommendation by the Monetary Guaranty Review
Group, the Director may grant extensions beyond the five (5) year limit,
if the Monetary Guaranty Review Group determines that such additional
extensions are reasonably justified due to the magnitude of the bonded
project, the reasonableness of the construction schedule and the diligence
of the developer in carrying out the schedule, a reasonable estimate of
the time necessary to satisfy VDOT public need requirements, and such
other factors as may be deemed relevant by the Monetary Guaranty
Review Group.
b) In making a formal request to the Director for an extension of the
completion date, the developer shall indicate the reasons and conditions
which have prevented completion of the required improvements. The
developer shall furnish to the Director an Extension Agreement, a
written consent to the extension by the surety and an extension of the
monetary guaranty, subject to appropriate upward or downward
adjustments in the monetary guaranty amount.
c) Performance Agreement Extension Submission Requirements: The
Performance Agreement Extension request shall not be processed unless
the following items have been submitted as one complete package:
Fee check.
ii. Letter of request with justification from the developer.
iii. Performance Agreement Extension executed by the developer,
Consent to Extension executed by the developer and surety, and
extension of, or confirmation of continuation of, the monetary
guaranty.
iv. Performance Agreement Extension and Consent to Extension must
be prepared on forms approved by the Monetary Guaranty Review
Group.
d) In situations where the developer has requested an extension or a new
Performance Agreement and monetary guaranty, the Monetary Guaranty
Review Group will review the Director's report on the project and the
reasons provided by the developer. Factors to be considered by the
Monetary Guaranty Review Group include, without limitation:
i. Percentage of project already completed.
ii. Number of homes or buildings completed, occupied, and served by
public facilities.
iii. Rate of construction activity.
iv. Developer's history relating to completion of public improvements
in the County and in neighboring jurisdictions.
V. Current projected completion cost: Dependent upon the amount of
work yet to be completed and the currently estimated cost to
complete construction of the project, the Monetary Guaranty
Review Group may require an increase in the amount of the
existing monetary guaranty to cover the completion of such
outstanding improvements and obligations.
vi. Current rating of the bank or corporate surety providing the
monetary guaranty for the Performance Agreement.
e) In the event the developer does not respond to the letter sent by the
Director cautioning of potential default, in the event the agreement is in
default, or if the County is unable to reach agreement with the developer
regarding an extension, the matter will be referred to the County
Attorney's Office for guidance and possible legal action. See Section 6
below.
f) Nothing herein shall prevent the County from requiring an increase in
the required amount of the monetary guaranty to account for inflationary
increases, as a condition of granting the requested Extension.
g) No Performance Agreement Extension request for a bonded Stormwater
Management Agreement shall be accepted for processing until the
Monetary Guaranty Review Group has determined that such Agreement
is qualified for an extension. If such Agreement is not determined to
qualify for extension,no extension shall be granted.
B. Additions to Previously Bonded Improvements
1. When a record plat is submitted for a subdivision containing public improvements
that are extensions of public improvements dedicated upon a previously approved
record plat for which a Performance Agreement and monetary guaranty have
already been accepted, the construction of such proposed extension improvements
may be guaranteed under the previously existing monetary guarantee in accordance
with the following conditions:
a) The monetary guaranty shall be capable of being modified, and any
modifications shall be accepted as satisfactory by the Monetary Guaranty
Review Group before they shall become effective.
b) Modifications to the monetary guaranty shall be in writing and indicate
that such monetary guaranty covers both the improvements shown upon
the proposed record plat and the improvements dedicated upon the
previously approved plat.
c) A separate Performance Agreement covering such proposed extension
improvements and referencing the modified monetary guaranty shall
accompany the record plat.
d) The Monetary Guaranty Review Group may recommend an extension of
the completion date under the Performance Agreement covering the
previously approved plat in conjunction with the approval of the record
plat, if requested by the developer, in order to establish a common date of
completion under the Performance Agreements secured by the same
monetary guaranty; provided that a extension fee shall have been paid if
such extension is for more than five (5) months.
e) Such separate Performance Agreement and modified monetary guaranty
shall not be approved or accepted until the previously bonded
7
improvements have been inspected and found satisfactory and the
Director has determined, in writing, that the amount of such monetary
guaranty, as modified, is adequate to guarantee completion of both the
remaining previously approved record plat improvements and the
proposed extension improvements.
f)Nothing herein shall prevent the developer from submitting a separate
monetary guaranty, provided it otherwise meets all requirements of this
policy, for the amount necessary relative to the extension improvements.
C. Monetary Guaranty Reductions
1. Monetary Guaranty Reduction Requirements: Partial releases of monetary
guarantees, referred to herein as monetary guaranty reductions, shall be granted
based upon Completion of specific, identifiable portions of the project and shall
be subject to the following limitations:
a) No monetary guaranty shall be reduced until Completion of at least 30%
of the physical improvements secured by such monetary guaranty.
b) The Monetary Guaranty Review Group shall not be required to consider
more than three (3) monetary guaranty reductions within any twelve
(12) month period during the life of the monetary guaranty.
c) No monetary guaranty shall be reduced to an amount less than 10% of the
original approved cost estimate.
d) For the purposes of this subsection C, monetary guaranty reductions,
"Completion" shall mean construction of any identifiable section of a
specified bonded improvement or facility in accordance with the
approved site plans, construction plans and profiles, and/or
specifications. For example, for a specific section of public roadways to
be eligible to be considered for monetary guaranty reduction, the
grading, subbase, base paving, curb and gutter, including all compaction
and lab tests, and all other aspects of construction, with Exceptions as
defined herein, shall be completed and all work in place must be in good
condition. The "good condition" requirement shall not be deemed
satisfied for any such section where there exists any failing pavement.
"Completion" also includes construction of (i) a roadway section to such
extent as it meets the requirements of 24VAC30-92-60 for acceptance
by VDOT into the state secondary street system, or (ii) any other public
improvement to the extent that it is sufficient for the County, a
homeowners association, a property owners association, or other entity
or agency to accept and begin use of the same.
e) "Exceptions" to the Completion requirement may include final surface
pavement and any other ancillary, uncompleted improvements such as
sidewalks, driveway aprons and lot grading which the Director
determines would probably suffer excessive damage during construction
upon the property abutting the bonded improvement or facility.
f) The reduction of any monetary guaranty shall not be considered
acceptance by the County of the bonded improvements or facility for
which such reduction has been requested, nor shall constitute any
agreement or acknowledgement by the County that the improvements or
facility are in final satisfactory form, and the developer shall have a
continuing responsibility for maintaining such bonded improvements or
facility in good condition, including without limitation the repair of
deterioration and damage, until they have been formally accepted by the
County, VDOT, or other appropriate agency. Failure to perform such
maintenance within thirty (30) days of being so directed by the Director
shall constitute default of the Performance Agreement.
g) When any Exception to the Completion requirement is permitted, the
amount of the monetary guaranty as reduced shall include the cost of
constructing or repairing such final surface pavement or other
uncompleted bonded improvements or facility. In no event shall any
monetary guaranty be reduced to an amount less than the amount
deemed necessary by the Monetary Guaranty Review Group to cover (i)
the total estimated cost of achieving total completion of the project
without exceptions, plus (ii) the entire ten percent (10%) Contingency
Factor included in the original approved cost estimate.
h) When a developer has achieved completion of a portion of a project
subject to a Performance Agreement and monetary guaranty, and such
portion has been accepted into the state system for maintenance by
VDOT, such developer may revise the approved site plans and/or
construction plans and profiles to exclude such accepted portion and
submit such revised site and/or construction plans and profiles to the
Director along with a revision of the original cost estimate to cover only
the portion not yet accepted. See Section 5. B. 1. regarding the
procedure for VDOT acceptance.
i) No monetary guaranty shall be reduced for a Performance Agreement
that is in default.
2. Monetary Guaranty Reduction Procedures: A request for a reduction of the
monetary guaranty amount shall be deemed to have been made when the developer
has provided notice to the Director in the following manner. The monetary
guaranty reduction Request shall not be deemed to have been made until the
9
following items have been submitted as one complete package. Such notice shall
include:
a) A written request for reduction of the monetary guaranty amount, signed
and acknowledged by the developer who executed the Performance
Agreement. When applicable, such written request shall include a
certification by the developer that the installation of all underground
utilities located within the bounds of any public or private roadway
covered by such monetary guaranty has been inspected and approved by
the utility provider.
b) An estimate prepared by a Licensed Professional Engineer (P.E.) or
Surveyor that shows the quantities of all bonded improvements in place,
complete, and in good condition.
c) Written consent, signed and acknowledged by a duly authorized officer
or agent of the corporate surety, banking institution, or other approved
surety which provided the monetary guaranty.
d) The applicable processing fee; and
e) If applicable, a recorded SWM/BMP Maintenance Agreement to
establish the responsibility of the property owner for the maintenance of
such facility. Such SWM/BMP Maintenance Agreement shall be in a
form approved by the County Attorney and executed by the County
Administrator.
3. After a monetary guaranty reduction is approved, an amendment to the monetary
guaranty shall be submitted to reflect the reduced amount. A monetary guaranty
reduction shall not be deemed final and in effect until the Director has issued a
letter of approval and the appropriate amendment to the monetary guaranty is
received by the County. As with initial monetary guaranty submissions, no
change to the entry for property description and name of the project on the
monetary guaranty shall be accepted until reviewed and approved by the County
Attorney.
4. Cost Estimate and Monetary Guaranty Amount
A. The cost estimate shall be based on the estimated cost of construction of all items shown
upon the approved plans (labor and material), plus a 10 percent Contingency Factor to
cover administrative and engineering costs in the event of default and potential damage
to existing roads or utilities and the inflation factor(s). The cost estimates shall reflect the
current unit costs as published and distributed by the Monetary Guaranty Review Group.
B. The cost estimate shall be prepared by a Licensed Professional Engineer (P.E.) or Surveyor
and submitted for approval.
10
C. Where partial construction has already occurred, the amount of the monetary guaranty
may be less than the cost estimate to allow for work completed prior to establishing the
original monetary guaranty, subject to the Director approval, in consultation with the
Virginia Department of Transportation (VDOT) where applicable; provided, however,
that in any instance in which such work is completed prior to establishing the original
monetary guaranty, any monetary guaranty reduction requested shall be based upon the
original cost estimate and not upon the original amount of such monetary guaranty.
5. Acceptance of Public Improvements and Release or Reduction of Performance
Agreement and Monetary Guaranty
A. Upon meeting the criteria herein for release or reduction of the Performance Agreement and
monetary guaranty, the developer shall submit to the Director:
1. A set of Record Drawings certified as to construction by a Licensed Professional
Engineer (P.E.) or Surveyor.
2. If requested by the County all associated third party inspection reports.
3. A request, in writing, that a joint inspection to be made by VDOT and the
Director.
4. If applicable, a recorded SWM/BMP Maintenance Agreement to establish the
responsibility of the property owner for the maintenance of such facility. Such
SWM/BMP Maintenance Agreement shall be in a form approved by the County
Attorney and executed by the County Administrator.
5. If applicable, a Letter of Map Revision (LOMR) from FEMA.
B. In addition to the above and as may be required:
1. As for Roadway Improvements to be accepted by VDOT:
a) 24VAC30-92-60 sets out the public service requirements for the
acceptance by VDOT of a roadway or roadway section into the state
secondary street system. When a roadway or any roadway section meets
the public service requirements of 24VAC30-92-60, the developer shall
promptly request initiation of the procedures set forth in this Section 5.
B. L Irrespective of whether the developer elects to initiate these
procedures, when a roadway or or any roadway section meets the public
service requirements of 24VAC30-92-60, the County in the alternative
may also elect to initiate the procedures.
b) After inspection by County staff and VDOT, the developer shall
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complete all of the corrective work shown on the punch list within 30
days. This punch list shall not relieve the developer of any latent defects
which might become apparent prior to roadway acceptance by VDOT. If
punch list corrections are not completed within the allotted time, the
entire project may be subject to re -inspection and, as well, the County
may consider the developer to be in default under the Performance
Agreement and initiate the procedures set forth in Section 6.
c) The developer shall notify the Director, in writing, upon completion of
the punch list items and shall request final inspection. The Director shall
set a date for joint inspection with VDOT and the developer within 30
days of the request. Subsequent to final inspection, the Director shall
await written notification from VDOT as to whether the road, as
constructed, meets the applicable construction standards of VDOT as of
the date of inspection. If not, the procedures herein may be repeated, as
applicable.
d) If final inspection indicates that the developer has fully performed as to
construction, but that the road(s), do not meet the requirements of
24VAC30-92-60, the developer shall enter a maintenance and
indemnification agreement with maintenance and indemnification
monetary guaranty, in form approved by the County Attorney and
executed by the Board of Supervisors or designee, guaranteeing that the
developer shall maintain the roads in the same condition as existed at
final inspection until such time as VDOT road acceptance occurs. Such
maintenance and indemnification monetary guaranty shall be in an
amount as recommended by the Monetary Guaranty Review Group and
approved by the Director. Maintenance responsibility for the road(s)
shall remain with the developer until such time as the road(s) are
accepted by VDOT.
e) When the road(s) have been accepted by VDOT or when the maintenance
and indemnification agreement requiredherein is approved by the
Director, the bonding requirements, except for any ancillary
improvements outside the right of way, for such road(s) shall be deemed
satisfied, to the extent of such acceptance.
2. As for public improvements to be accepted by the County, a homeowners
association, a property owners association, or other entity or agency:
a) After the developer has requested the release of a performance
agreement and monetary guaranty pursuant to the provisions of this
section, the Director will schedule an inspection of such bonded
improvements for which the release is requested. (This inspection may
occur at the same time as the VDOT inspection.)
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b) The Director shall notify the developer in writing of any items requiring
correction or revision within 30 days of receipt of the request for a
release.
c) Developer shall complete all of the corrective work shown on the punch
list within 30 days. If punch list corrections are not completed within the
allotted time, the entire project may be subject to re -inspection.
3. No Monetary Guaranty shall be released or reduced for a Performance Agreement
that is in default.
6. Procedure in the event of a Default under a Performance Agreement
In the event of a default under a performance agreement, the Monetary Guaranty Review
Group, in consultation with the County Attorney, shall consider measures to address the default,
which measures may include, but are not necessarily limited to, any one or more of the
following, as appropriate:
A. Commencement of legal proceedings against the developer and/or any
other appropriate party.
B. Demand to the surety for payment of monetary guaranty proceeds to the
County (or, for cash amounts previously paid to the County to be held in escrow, transfer
of the funds to a County operating account, as designated by the Treasurer).
C. Completion of such roadway and/or other public improvements as may be
appropriate, using monetary guaranty proceeds and with the County reserving the right to
seek the amount of any shortfall, in legal proceedings against the developer. Nothing
herein shall obligate the County to complete any public improvements.
D. Reimbursement to any appropriate organization, such as a homeowners
association, of the cost of any improvements to be owned by such organization, but only
to the extent of the lesser of the proceeds available to the County for such improvements
or the actual cost of such improvements, as evidenced by appropriate receipts and/or
other documentation.
E. Initiation of the procedure, pursuant to Virginia Code Section 15.2-2271
or 15.2-2272, for adoption of an ordinance of full or partial vacation of the subdivision
for which the County received the monetary guaranty. Upon the vacation of the
subdivision becoming non -appealable, the County shall release the monetary guaranty in
a corresponding amount.
F. Such other measure(s) as may be appropriate.
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