A.
Before approving any subdivision or land development plan for recording,
Town Council shall require that the Town be assured by means of proper
financial security that the improvements required by this chapter
will be installed in strict accordance with the standards and specifications
of this chapter, except:
(1)
If a developer chooses to install all required improvements prior
to construction of any building, in place of using performance guarantees,
in which case the Town shall, as deemed necessary, require the developer
to provide adequate insurance, hold harmless agreements, an escrow
account to cover the costs of inspections and a professional estimate
of the costs of the improvements (to be used to establish the amount
of the inspections escrow).
B.
Purpose of security. The security required by this article shall
stand as security for compliance with all Town ordinances, other laws,
covenants, stipulations, conditions and resolutions applicable to
the subdivision or land development for which it is filed.
C.
In any case, no construction of buildings or sales of any individual
lot or condominium unit within a subdivision or land development shall
take place unless:
A.
Responsibility. The applicant for a subdivision or the future purchaser
of the entire subdivision shall have the primary responsibility to
ensure installation of all improvements required by this chapter,
unless the Town Council specifically approves certain improvements
being made the responsibility of future purchasers of individual lots.
B.
Inspections. The Town Engineer or other Town designee shall make
such inspections of the required improvements at such intervals as
may be reasonably necessary to assure compliance with this chapter.
The reasonable costs of such inspection shall be borne by the land
developer, through use of an escrow account.
C.
Post-construction plans. The applicant shall provide the Town, or
its designee, with a complete set of post-construction plans that
accurately show the construction as it actually was completed. Such
plans shall be accompanied by a signed statement by the applicant
that states that the construction was completed in general conformance
with approved plans.
A.
Development agreement required.
(1)
All applicants proposing any subdivision or land development which
provides for the installation of improvements required by this chapter
or any improvements or amenities which appear on the final plan shall
be required to enter into a legally binding development agreement
with the Town prior to recording of the final plan, unless:
(2)
The development agreement shall guarantee the installation of said
improvements in strict accordance with all Town requirements.
B.
Terms of development agreement. The development agreement shall be
acceptable in legal form to the Town Attorney and shall be acceptable
in content to Town Council. The Town may require that a development
agreement include any of the following items, where applicable, and
such additional items as are necessary to carry out this chapter:
(1)
The construction depicted on the approved plans, listed in itemized
format, including all approved streets, drainage facilities, utility
lines and other improvements.
(2)
A work schedule setting forth the beginning and ending dates of such
work tied to the construction of the development and provisions to
allow proper inspection by the Town Engineer.
(3)
The provision of a performance guarantee for completion of required improvements in compliance with § 335-41, including a detailed breakdown of the estimated costs of the improvements, including total amount of the performance guarantee.
(4)
Provisions concerning the developer's responsibilities for drainage
to other property, including maintenance by the developer of public
liability insurance for the duration of improvements construction,
with a hold harmless clause to protect the Town from liability related
to such work. A copy or other evidence of such liability coverage
shall be provided to the Town prior to such work.
(5)
Provisions requiring that the applicant and/or other responsible
entities ensure that erosion, sedimentation and stormwater management
plans are complied with.
(6)
Provisions for the dedication of streets, water and sewer lines and
any other easements or improvements approved to be dedicated.
(8)
Provisions for the developer to reimburse the Town for all reasonable
engineering costs directly related to the review, construction and
inspection of the proposed development and to the review preparation
of the development agreement.
(9)
Provisions concerning any violations of the development agreement.
(10)
Any other lawful terms which the Town Council may require to
carry out the provisions of this chapter.
(11)
Signatures. The development agreement shall be signed by all
responsible landowners and/or developers.
C.
Ownership of land and guarantee.
(1)
A certificate of ownership in the form of Appendix B shall be executed
in the exact name in which title is held. If the developer(s) of a
subdivision is someone other than the landowner(s) of the subdivision,
the developer shall also execute this affidavit, along with a security
agreement.
(2)
Change in ownership or developer. Any conveyance of all or a substantial
portion of the unimproved lots or public improvements or streets of
any subdivision or change in developers, whether voluntary or by action
of law or otherwise, shall require that the new landowner and/or developer
fully assume all applicable responsibilities under the development
agreement and post all the appropriate security agreements.
D.
Utility agreements. If a development will connect into a public water
or public sanitary sewage system, the applicable authority, agency
or company may also require separate development agreements.
The performance guarantee for completion of required improvements
shall meet the following requirements:
A.
Security.
(1)
The guarantee shall be secured by any of the following:
(a)
An irrevocable and unconditional letter of credit of a federal-
or state-chartered lending institution;
(b)
A restrictive or escrow account in a federal- or state-chartered
lending institution; or
(c)
Such other financial security approved by Town Council (which
approval shall not be unreasonably withheld), but not including a
second or third mortgage on unimproved lands.
(2)
Such approved security shall provide for, and secure to the public,
the completion of any improvements which may be required within one
year after the date fixed in the development schedule for the completion
of such improvements. The Town staff may withhold or suspend the issuance
of permits if such security lapses.
(3)
Such financial security shall be posted with an approved institution
or entity authorized to conduct such business within Maryland.
B.
Amount.
(1)
The amount of financial security to be posted for the completion
of the required improvements shall be equal to 110% of the cost of
completion estimated as of the 90 days following the date scheduled
for completion by the developer in the official development schedule.
(2)
The cost of improvements shall be established by an estimate prepared
by a Maryland registered engineer and shall be reviewed by the Town
Engineer.
(3)
Inflation. If the party posting the financial security requires more
than one year from the date of posting of the financial security to
complete the required improvements, the amount of financial security
may be increased by a maximum of an additional 10% for each one-year
period beyond the first anniversary date from posting of financial
security or to an amount not exceeding 110% of the cost of completing
the required improvements as reestablished on or about the expiration
of the preceding one-year period by using the above procedure.
(4)
Inspection fees. The amount of financial security may also be required
to include an additional 5% of the estimated cost of completion of
the work to guarantee payment of inspection fees and related engineering
costs.
C.
Multiyear or multistage development. In the case where development
is projected over a period of years, the Town Council may authorize
submission of final plans by phase/stages of development subject to
such requirements or improvement guarantees concerning future improvements
as it finds necessary for the proper functioning of each phase and
for the eventual development as a whole. Such phasing may also be
approved through a development agreement.
A.
In general. As the work of installing the required improvements proceeds,
the party posting the financial security may from time to time request
Town Council to authorize the release of portions of the financial
security related to the work that has been completed.
B.
Notice by developer of work on improvements.
(1)
The developer or his/her representative shall provide a minimum of
three days' notice to the Town Engineer, or other inspection official
designated by the Town Manager, prior to beginning each major facet
of construction, in order to allow the scheduling of inspections.
(2)
When an improvement has been completed, the developer shall notify
the Town and request release of related financial security in writing
to Town Council by certified or registered mail. The developer shall
send a copy of the letter to the Town Engineer at the same time.
C.
Engineer's report.
(1)
Within 30 days of the receipt of such request, the Town Engineer
shall submit a written report certifying which improvements have been
completed in accordance with the approved plan to Town Council and
mail a copy of such report by certified or registered mail to the
developer or his/her representative at his/her last known address.
(2)
This report shall be based on site inspections and shall recommend
approval or rejection of the improvements, either in whole or in part.
(3)
The Town Engineer shall state if any of the improvements related
to the developer's request for release of funds have not been
satisfactorily completed as approved.
D.
Decision by Town Council.
(1)
At its regularly scheduled meeting after receiving the Engineer's
report (but not later than 45 days after the receipt of the request),
Town Council shall review the Town Engineer's report and shall
authorize the release of funds estimated by the Town Engineer to fairly
represent the value of the improvements satisfactorily completed.
(2)
Town Council shall be deemed to have approved the release of funds
as requested if Town Council fails to act within 45 days of receipt
of the developer's request.
(3)
Until final release (completion of all improvements), Town Council
may require that a maximum of 10% of the cost of each completed improvement
be retained.
(4)
Town Council shall notify the developer in writing by certified or
registered mail of the decision.
E.
Completion of unapproved improvements. The developer shall satisfactorily
complete any required improvements that Town Council determines are
not satisfactory or complete. Upon completion, the applicant may request
approval in conformance with the procedures specified in this section.
G.
Appeal. Nothing herein, however, shall be construed to limit the
developer's right to contest or question by legal proceedings
or otherwise any determination of Town Council or the Town Engineer.
H.
Certificates of occupancy and completion of improvements.
(1)
A temporary or final certificate of occupancy, if required, shall
not be issued and a structure shall not be occupied unless all principal
buildings have access to a clearly permanently passable street with
at least a complete paving base course and any required curbing installed.
A.
Enforcement of security.
(1)
In the event that any improvements which may be required have not
been installed as provided in this chapter or in accord with the approved
final plan, or in the event of the bankruptcy of the owner or developer,
Town Council is hereby granted the power to elect to enforce any security
posted under this chapter by appropriate legal and equitable remedies.
(2)
This may include taking all actions necessary to obtain moneys under
said security, including but not limited to seizure of undeveloped
lots, seizure of escrow funds, revocation of building permits and
prosecution under this chapter.
(3)
Rate of construction. Failure of a developer to construct streets
and other public improvements reasonably at the same time or prior
to the construction of the buildings served by those streets or public
improvements, and at the same rate in time, at which buildings are
completed, shall be a violation of this chapter and a cause for default
of the security.
B.
Completion by Town. If the proceeds of such security are insufficient
to pay the cost of installing or making repairs or corrections to
all of the improvements covered by said security, Town Council may
at its option install part of such improvements in all or part of
the subdivision or land development and may institute appropriate
legal or equitable action to recover the monies necessary to complete
the remainder of the improvements.
C.
Proceeds for installation of improvements. The proceeds from use
of the security and/or from any legal or equitable action brought
against the developer shall be used solely for the installation of
the improvements covered by such security.
A.
Maintenance guarantee required. All applicants proposing any subdivision
or land development which provides for the public dedication of improvements
required by this chapter shall be required to provide a legally binding
maintenance guarantee to the Town prior to acceptance of dedication
of the improvements by the Town. In most cases, this guarantee will
be part of the security agreement.
B.
Terms of maintenance guarantee. The maintenance guarantee shall be
acceptable in legal form to the Town Attorney and in content to Town
Council and shall include all of the following:
(1)
That the applicant make any repair or reconstruction of any improvement
stipulated in the maintenance agreement which is specified by Town
Council if needed because of faulty construction, workmanship, or
materials, prior to acceptance of such improvements by the Town;
(2)
That the applicant maintain at his/her own cost all improvements
stipulated in the maintenance agreement, up to a maximum period of
18 months from the date of completion, unless specified otherwise;
(3)
That the applicant post financial security to secure structural integrity
of and proper functioning of such required improvements in accordance
with the design and specifications as depicted on the final plan,
for a maximum term of 18 months from the date of completion; and
(4)
That the developer plow snow and maintain (repair/patch, sweep, overlay)
all streets until such time as the Town may accept such streets.
C.
Public utilities and authorities. If water mains and/or sanitary
sewer lines and related facilities are to be installed under the jurisdiction
and under the rules and regulations of a public utility or municipal
authority, financial security to assure proper completion and maintenance
thereof shall be posted in accordance with the regulations of the
controlling public utility or municipal authority. This amount of
financial security shall not be required by the Town if it is required
by such utility or authority.
D.
Type of security. The maintenance guarantee shall be secured by the
same form of security as is permitted for the improvements guarantees.
E.
Terms. Such security shall be payable to and enforceable by the Town
of Smithsburg.
F.
Amount. The amount of the maintenance guarantee shall be determined
by the applicant's engineer, conditioned upon acceptance by Town
Council, but shall not exceed 15% of the actual cost of installation
of such improvements.
G.
Release. After a maximum of 18 months from the date of completion
of said improvements, the Town shall release the maintenance guarantee
to the developer (or party that posted the guarantee) if all improvements
are in satisfactory condition, as determined by the Town.
