Martinsburg City Zoning Code

ARTICLE 1309

Guarantee of Improvements

1309.01 PURPOSE AND AUTHORIZATION.

The purpose of this Article is to provide for acceptable guarantees of performance to assure timely construction and completion of Improvements in accordance with approved Final Subdivision and/or Land Development Applications and/or Erosion and Sediment Plans.

(a) The Planning Commission is authorized to require performance bonds in conjunction with the approval of a Final Subdivision and/or Land Development Applications and/or Erosion and Sediment Plans, in accordance with this Ordinance and pursuant to West Virginia Code Chapter 8A, Article 6 Methods of Security.

(b) Performance bonds shall be required for public and other physical Improvements to be constructed under an approved Final Subdivision and/or Land Development Application. Such Improvements shall include, without limitation, Road, curb, gutter, sidewalk, trails, storm Drainage, traffic signalization and control, water and sanitary sewer infrastructure, Landscaping, and any other site-related Improvements required by the City for vehicular and pedestrian ingress and egress, for public access roadways, for Structures necessary to insure stability of critical Slopes, for necessary utilities, and for Stormwater Management Facilities. Notwithstanding the foregoing, the Planning Commission may waive the requirement for a performance bond for a Final Subdivision and/or Land Development Application that does not provide for construction of any Improvements eligible for public maintenance if the Planning Commission agrees with a determination of the City Engineer/Planning Director or designee that the satisfactory completion of Improvements to be constructed under the Final Subdivision and/or Land Development Application can be enforced pursuant to ordinances regulating Building permits and occupancy permits.

(c) For a Major Subdivision and/or Land Development, surety, as detailed in Article 1305 of this Ordinance, shall be required for Erosion and Sediment Plans, as stipulated under Section 1307.10 Stormwater Management and Erosion and Sediment Control of this Ordinance. Where Article 1305 affirms that surety is required for “Final Subdivision and/or Land Development Applications”, it shall be as if the statement is transposable with “approved Erosion and Sediment Plans.” No Waiver from the Erosion and Sediment Plans surety is permitted.

(Ord. 2022-13. Passed 11-10-22.)

1309.02 BONDING ARRANGEMENTS.

(a) Bonding arrangements cannot be made prior to Planning Commission approval of the project.

(b) The Owner/Developer’s Engineer of record shall provide a complete and accurate bond estimate in a format acceptable to the City Engineer/Planning Director or designee. The bond estimate shall be based on the estimated costs of the site Improvements utilizing current market rates. However, in no event shall the estimated cost be less than the Unit costs provided by the City of Martinsburg Planning Department. The Unit costs are subject to change from time to time as deemed necessary by the City Engineer/Planning Director or designee.

(c) A fifteen percent (15%) contingency amount shall be added to the bond estimate. However, for projects with an estimated constructions costs under one hundred thousand dollars ($100,000.00), the minimum bond contingency amount shall be fifteen thousand dollars ($15,000.00).

(d) After the City Engineer/Planning Director or designee approves the construction bond amount, the Developer shall submit the bond surety to the City Engineer/Planning Director or designee. (Ord. 2022-13. Passed 11-10-22.)

1309.03 BOND SUBMISSION REQUIREMENTS.

(a) A Performance Agreement between the Planning Commission and the owner/Developer.

(b) A surety in an amount equal to the approved bond estimate, or in such lesser amount as is provided for in Section 1309.07 of this Ordinance, guaranteeing completion of the Performance Agreement.

(Ord. 2022-13. Passed 11-10-22.)

1309.04 TERM OF PERFORMANCE AGREEMENT.

The maximum period for completion of a Performance Agreement shall be two (2) years, or such other period as specified in the Performance Agreement and determined appropriate for the subject project by the City Engineer/Planning Director or designee. If the subject project is not completed within the specified timeframe, City Council may require adjustment of the bond amount, after consideration and review by the City Engineer/Planning Director or designee, as a condition to extension of the Performance Agreement.

(Ord. 2022-13. Passed 11-10-22.)

1309.05 TIME EXTENSIONS OF CONSTRUCTION BONDS.

Upon written request by the Developer, the staff may grant two additional one and one-half (1-1/2) year time extensions for completion of all site Improvements, for a total of five (5) years provided that:

(a) All occupied dwelling Units are served by a Road that is totally improved with the exception of the top/finish coat of asphalt;

(b) All Erosion and Sediment Control measures are in place in accordance with the approved Sediment Control Plan and functioning properly;

(c) The storm water management facilities are in place and functioning as either temporary sediment traps per sediment and erosion control Plan or as permanent storm water management basins that are protected from discharging sediment from undisturbed area on the project site. In either case, the storm water management facility shall itself be stabilized;

(d) Existing infrastructure that has failed is satisfactorily reconstructed; or redesigned if necessary and additional surety is provided;

(e) Elements of the Preliminary Plat or Site Plan that are not constructed, are reviewed for compliance with current design standards; and the Preliminary Plat or Site Plan elements not meeting current standards, at the direction of the City Engineer/Planning Director or designee and where practical, are redesigned or modified to meet current standards;

(f) The bond amount is re-evaluated to determine if the amount is still adequate;

(g) The bond amount is increased, and additional surety provided if the bond amount is determined to be inadequate;

(h) The Owner/Developer paid the non-refundable processing fee for the bond time extension request, in accordance with the prevailing fee schedule; and

(i) Time extensions beyond the five (5) year time period may only be considered by the City Council and may be granted for justifiable reasons on a case-by-case basis.

(Ord. 2022-13. Passed 11-10-22.)

1309.06 ACCEPTABLE FORMS OF SURETY OR SECURITY.

(a) Corporate Surety Bond. This surety shall be furnished by an insurance company licensed to transact fidelity and surety insurance in West Virginia and will guarantee the full amount of the bond estimate. The ability of the insurance company to provide satisfactory performance guarantee will be assessed by City Council 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). Performance Bonds will be accepted only from sureties listed in Best’s:

(1) With a rating of Level A or better; and

(2) In a financial size category of Class VIII, or higher, unless otherwise agreed by the Planning Commission, and such bonds shall be in amounts not exceeding:

A. Those limitations identified in the Treasury Circular; or

B. One and one-half percent (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 Bond or the Bond must be replaced by adequate replacement surety at the request of City Council.

(b) Cash Escrow.

(1) An amount equal to the approved bond estimate in the form of a cashier’s check or certified check, accompanied by a W-9 or Substitute W-9 form, shall be submitted to the City Engineer/Planning Director or designee, to be deposited with the City Financial Officer, in an interest bearing account with full financial accountability provided by the City Financial Officer through a separate Performance Bond Fund.

(2) All cash escrows held shall be maintained by individual bond as to principal and accumulated interest but may be pooled for investment purposes with accrued interest allocated to each bond in accordance with City allocation policies. The City Financial Officer shall be entitled to retain a reasonable amount, not exceeding five percent (5%) of the interest accrued, to cover the cost of administering the account. Upon approval for release of the bond as provided herein, the City Financial Officer shall be authorized to release the cash escrow (principal plus accrued interest less allowable cost of administration) and disburse the funds.

(1) The lending institution must be insured by the Federal Deposit Insurance Corporation (FDIC) and shall have offices and license to practice banking in West Virginia with a Sheshunoff National rating of at least thirty-five (35) and with total letter of credit exposure of the City at the lending institution limited to no more than fifty percent (50%) of the institution’s equity capital, unless otherwise agreed to by City Council. City Council may, accept a letter of credit from an institution whose rating is lower than thirty-five (35) provided that such rating shall be no less than thirty (30) and shall be maintained at or above such lower level until such letter of credit has been completely released. Such ratings and other qualifications must be maintained for the life of the letter of credit, as amended, or the letter of credit must be replaced by adequate replacement surety at the request of City Council.

(2) The expiration date in the letter of credit shall be at least six (6) months after the date by which the Performance Agreement must be performed. For example, a twelve (12) month Performance Agreement requires an eighteen (18) month Letter of Credit. This six (6) month requirement is in addition to the six (6) month automatic extension that is required below.

(3) The letter of credit shall contain the conditions of automatic renewal providing that the letter of credit will automatically be extended for additional periods of six (6) months unless the City Engineer/Planning Director or designee 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.

(4) All extensions of time of the Performance Agreement completion date will be granted only upon corresponding extension of the letter of credit expiration date.

(5) Any new letter of credit or letter of credit amendment is subject to all the minimum requirements outlined in this subsection (c).

(d) Multiple Sureties. Where two (2) or more sureties are provided in conjunction with one Performance Agreement, the agreement shall identify and incorporate each surety separately.

(e) Additions to Previously Bonded Improvements. When Improvements to be constructed under a proposed Final Subdivision and/or Land Development Application are extensions of Improvements to be constructed under a previously approved Final Subdivision and/or Land Development Application for which a Performance Agreement and surety have already been accepted, the construction of such proposed extension Improvements may be guaranteed under the previously existing surety in accordance with the following conditions:

(1) The surety instrument must be capable of being modified, and any modifications must be accepted as satisfactory by City Council upon recommendation of the City Engineer/Planning Director or designee before they shall become effective.

(2) Modifications to the surety must be in writing and must indicate that such surety covers both the Improvements to be constructed under the proposed Final Subdivision and/or Land Development Application and the Improvements to be constructed under the previously approved Final Subdivision and/or Land Development Application.

(3) A separate Performance Agreement covering such proposed extension Improvements and referencing the modified surety must be submitted.

(4) The City Engineer/Planning Director or designee may recommend an extension of the completion date under the Performance Agreement covering the previously approved Final Subdivision and/or Land Development Application in conjunction with the approval of the proposed Final Subdivision and/or Land Development Application, if requested by the owner/Developer, in order to establish a common date of completion under the Performance Agreements secured by the same surety; provided that, such extension of completion date shall not be for more than one (1) year and provided that the appropriate bond extension fee shall have been paid if such extension is for more than five (5) months.

(5) Such separate Performance Agreement and modified surety shall not be approved or accepted until the bonded Improvements have been inspected and found satisfactory and City Council has determined, in writing, that the amount of such surety, as modified, is adequate to guarantee completion of the Improvements to be constructed under both the previously approved Final Subdivision and/or Land Development Application and the proposed Final Subdivision and/or Land Development Application.

(f) Due to the varying ease or difficulty of collection and reliability of the various types of security, the City deems certain types of security as being more or less preferred for the protection of the public. Cash is deemed to be the most preferred security because of the ease of collection and immediate availability. Letters of credit are less preferred than cash, and surety bonds are less preferred than letters of credit. Once a bond, letter of credit or cash security has been approved and accepted by the City, only a more preferred or equally preferred form of security may thereafter be substituted in place of the current form of security.

(Ord. 2022-13. Passed 11-10-22.)

1309.07 BOND ESTIMATE.

(a) The bond estimate shall be based on the estimated cost of construction of all items to be constructed under the Final Subdivision and/or Land Development Application, plus a fifteen percent (15%) contingency factor to cover administrative and engineering costs in the event of default and potential damage to existing Roads or utilities. The cost estimates shall reflect the current Unit costs as published and distributed by the City and shall be increased by an inflation factor equal to the annual percentage change in the Construction Index Code, as published weekly in the Engineering News Record. This inflation factor is to be applied over the life of the bond, using the equation C = (P)(I)(E) + E; where P = the period of the bond (years); I = annual inflation factor; and E = the estimated cost of construction [including the fifteen percent (15%) contingency factor]; C = total Bond Estimate.

(b) The bond estimate shall be prepared and sealed by a Professional Engineer or Professional Land Surveyor and submitted to and approval by the Planning Commission.

(c) Where partial construction has already occurred, the amount of the surety may be less than the bond estimate to allow for work completed prior to establishing the original bond, subject to Planning Commission’s approval, provided that, after such original surety has been accepted by the Commission, any bond reduction requested shall be based upon the original bond estimate and not upon the original amount of such surety.

(Ord. 2022-13. Passed 11-10-22.)

1309.08 BOND PROCEDURES AND REQUIREMENTS.

(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.

(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.)

Appendix A

Typical Street Sections

City of Martinsburg

Subdivision and Land Development Ordinance

134

135

136

137

138

139

Appendix B

Standard Details

City of Martinsburg

Subdivision and Land Development Ordinance

140

141

142

143

Appendix C

Buffering Detail

City of Martinsburg

Subdivision and Land Development Ordinance