(a) Performance Agreement.
(1) A Performance Agreement, which shall be supported by an acceptable form of surety or security, shall be required on projects that obligate the owner/Developer to construct required Improvements pursuant to approved Final Subdivision and/or Land Development Applications in a timely manner.
(2) Such agreement shall specify the manner and date by which the required Improvements shall be completed.
(3) An agreement format will be provided by the City Engineer/Planning Director or designee to all Developers requesting same for use in preparation of the Performance Agreement.
(4) If the owner/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 bond submitted and approved with a new expiration date, the Performance Agreement shall be in default.
(b) Effects of Bond Default.
(1) It shall be the sole responsibility of the owner/Developer to keep the Performance Agreement current and remain in full compliance with its terms.
(2) While the Performance Agreement is in default, the owner/Developer shall not be entitled to any bond reduction, bond release, permits or inspections for the project covered by that Performance Agreement. If default can be cured by the approval of an extension of the agreement, then, upon fulfilling the bond extension submission requirements set forth above, including payment of the appropriate fees for bond extension and, if applicable, bond reduction, the inspections necessary for such bond extension and, if applicable, bond reduction, will be performed. The denial of permits and inspections by the City shall be in addition to any other remedy available to the City under the Performance Agreement.
(c) Bond Reductions.
(1) Bond Reduction Requirements. As installation of the site Improvements progresses, the owner/Developer may make written requests for periodic bond reductions. Bond reduction requests shall be for a minimum of one hundred thousand dollars ($100,000.00) of work but not more than three (3) requests may be submitted per calendar year. The Developer’s Engineer shall submit an itemized bond reduction request in a format acceptable to the City Engineer/Planning Director or designee and shall be subject to the following limitations:
A. No bond shall be reduced until completion of at least thirty percent (30%) of the physical Improvements secured by such bond.
B. The Planning Commission shall not be required to consider more than three (3) bond reductions within any twelve (12) month period during the life of the bond.
C. No bond shall be reduced to an amount less than ten percent (10%) of the original bond estimate.
D. For the purposes of this subsection (c), Bond Reductions, “completion” shall mean construction of any identifiable section of a specified Improvement or facility in accordance with the approved Final Subdivision and/or Land Development Application, construction Plans, profiles and specifications, and the provisions of this Ordinance. For example, for a specific section of public roadways to be eligible to be considered for bond 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.
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 City Engineer/Planning Director or designee determines would probably suffer excessive damage during construction upon the property abutting the bonded Improvement or facility.
F. The reduction of any bond shall not be considered acceptance of the Improvements for which such reduction has been requested, and the owner/Developer shall have a continuing responsibility for maintaining such Improvements in good condition, including without limitation the repair of deterioration and damage, until they have been formally accepted by the City, West Virginia DOH, or any other appropriate agency. Failure to perform such maintenance within sixty (60) days of being so directed by the City Engineer/Planning Director or designee shall constitute default of the Performance Agreement.
G. When any exception to the completion requirement is permitted, the amount of the bond as reduced shall include the cost of constructing or repairing such final surface pavement or other uncompleted Improvements. In no event shall any bond be reduced to an amount less than the amount deemed necessary by the Planning Commission to cover:
1. The total estimated cost of achieving total completion of the project without exceptions, plus,
2. The entire fifteen percent (15%) contingency factor included in the original approved bond estimate, plus,
3. The inflation factor referenced above in Section 1309.07.
H. When an Applicant/Developer has completed construction of a portion of a bonded project, and such portion has been accepted into the City system for maintenance by the City of Martinsburg, such owner/Developer may revise the approved Plans to exclude such accepted portion and submit such revised Plans to the City Engineer/Planning Director or designee along with a revision of the original bond estimate to cover only the portion not yet accepted. Planning Commission may, upon recommendation of the City Engineer/Planning Director or designee, approve such revised bond estimate and any consequent bond reduction in accordance with the foregoing Bond Reduction regulations as applied to such revised bond estimate.
I. No bond shall be reduced for a Performance Agreement that is in default.
(2) Bond Reduction Procedures. A request for a reduction of the bond amount shall be deemed to have been made when the Developer has provided notice to the Planning Commission in the following manner. The bond reduction request shall not be deemed to have been made until the following items have been submitted as one complete package. Such notice must include:
A. A written request for reduction of the bond amount, signed and acknowledged by the Applicant/Developer who executed the Performance Agreement. When applicable, such written request shall include a Certification by the owner or Developer that the installation of all underground utilities located within the bounds of any public or private roadway covered by such bond has been inspected and approved by the utility provider.
B. An estimate prepared and certified as being accurate by a Professional Engineer 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 surety or security.
D. The applicable processing fee; and
E. Inspection reports in accordance with this Ordinance.
(3) The Planning Commission may approve a Bond Extension upon a determination of completion of the subject Improvements; provided that, Planning Commission shall determine the amount and sufficiency of the remaining surety.
(4) After a Bond Reduction is approved, an amendment to the surety instrument shall be submitted to reflect the reduced amount.
(d) Bond Release Procedures.
(1) A request for final and complete release of a bond and Performance Agreement shall be deemed to have been made when the Applicant/Developer has provided notice to the City Engineer/Planning Director or designee. Such notice must include:
A. A written request for final release from the bond and Performance Agreement, signed and acknowledged by the Applicant/Developer who executed the Performance Agreement.
B. To the extent not previously submitted pursuant to bond reduction request, copies of inspection and test reports if work was inspected and tested by a third-party inspector.
C. Certification that all bonded Improvements have been completed in accordance with the approved Plans, profiles, and specifications and the requirements of any applicable manual. For Improvements to be accepted for maintenance by the City of Martinsburg, such Certification shall state that the Improvements have been installed and inspected in accordance with the City of Martinsburg’s requirements.
D. The applicable processing fee(s).
E. A copy of the City-approved As-Built Drawings as required for facilities within public Rights-Of-Way or Easements submitted pursuant to Section 1305.09
of this Ordinance.
F. A letter from a Professional Engineer or Professional Land Surveyor certifying that property corners and Monuments have been set as required under this Ordinance.
G. Documentation of acceptance by West Virginia DOH for public roadways and Rights-Of-Way, or a maintenance and indemnification agreement and bond approved by the Planning Commission for public roadways that have been completed in accordance with West Virginia DOH standards but which, due to factors other than their quality of construction, are not eligible for acceptance by West Virginia DOH.
H. For private roadways, a letter of acceptance by the entity responsible for maintenance and a Latent Defects Indemnification Agreement and Bond in accordance with this Section.
I. No bond shall be released for a Performance Agreement that is in default.
(2) Within thirty (30) days of receiving a release request which meets the requirements of this Subsection, unless such thirty (30) days is waived as provided hereafter, the City Engineer/Planning Director or designee shall inform the Applicant/Developer in writing of any construction defects, deficiencies, or omissions.
(3) Inspection procedures for Improvements to be accepted by the City, a homeowner’s association, or other agency are as follows:
A. After the Applicant/Developer has requested a final bond release pursuant to the provisions of this Section, the City Engineer/Planning Director or designee will schedule an inspection of such Improvements for which the release is requested.
B. The City Engineer/Planning Director or designee shall notify the Applicant/Developer in writing of any items requiring correction or revision within thirty (30) days of receipt of the request for a release. A request by, or the consent of, the Applicant/Developer to reschedule an inspection shall constitute a Waiver of the thirty (30)-day period for the City Engineer/Planning Director or designee to notify the Applicant/Developer of the items requiring correction.
(4) Inspection procedures for roadway Improvements to be accepted by West Virginia DOH are as follows:
A. After such roadways, or portions of roadways, are completed and, for fully completed projects, a set of As-Built Drawings per Section 1305.09
of this Ordinance, certified as to construction by a Professional Engineer, is submitted to the City Engineer/Planning Director or designee, the Applicant/Developer must request, in writing, through the City Engineer/Planning Director or designee, that a joint inspection be made with West Virginia DOH.
B. A date will be set for a field inspection by the City Engineer/Planning Director or designee with all representatives present. The City Engineer/Planning Director or designee shall provide to the Applicant/Developer a copy of the punch list of the items requiring correction or revision.
(5) No bond shall be released for a Performance Agreement that is in default.
(e) Private Roadway Maintenance Bonds. Before a Performance Agreement and surety for private roadway construction shall be released, a Latent Defects Indemnification Agreement and Bond shall be provided by the Applicant/Developer and approved by the Planning Commission. The guarantee provided by such Agreement and Bond must be for a period of two (2) years following the date of performance bond release and must be in an amount equal to no less than five (5) percent of the original performance bond estimate. Such guarantee must provide that the Applicant/Developer will be responsible for pavement, concrete or Stormwater Management system repairs arising from construction deficiencies as determined by the City Engineer/Planning Director or designee for a period of two (2) years after performance bond release, with such repairs to be made within sixty (60) days after notification by the City Engineer/Planning Director or designee, or designated agent, that such repairs are needed. If repairs are not accomplished within that time, the Applicant/Developer shall be deemed to be in default of the Agreement and Bond, and the City Engineer/Planning Director or designee may take any appropriate action provided for in such Agreement, including calling upon the bond securing such Agreement to perform the repairs.
(f) Vacation of Plats.
(1) Portions or sections of the Subdivision and/or Land Development in which construction has commenced or in which Lots have been occupied or house construction has begun may not be vacated and must be completed and Improvements therein accepted by the City Engineer/Planning Director or designee. Under appropriate circumstances, as determined by the Planning Commission, and in accordance with the policy stated herein relating to Maintenance Agreements and bonds, such completed Improvements may be placed under security of a maintenance bond pending acceptance.
(2) Failure by the Applicant/Developer to perform its obligations under a Performance Agreement constitutes a default.
(Ord. 2022-13. Passed 1-10-22.)