A.
Performance guarantees required. As a condition to the approval of
a final subdivision plat, site plan, grading permit or building permit,
the owner or developer shall be required to guarantee completion of
the public and other site-related improvements associated with the
development.
B.
Facilities required to be guaranteed.
(1)
The owner or developer shall guarantee construction of the following
facilities:
(a)
Any right-of-way located within any subdivision or section thereof;
(b)
Any street, curb, gutter, sidewalk, bicycle trail, drainage
or sewerage system, waterline as part of a public system or other
improvement dedicated for public use, and maintained by the City,
the commonwealth, or other public agency;
(c)
Other site-related improvements required by local ordinance
for vehicular ingress and egress, including traffic signalization
and control, for public access streets, for structures necessary to
ensure stability of critical slopes, and for stormwater management
facilities;
(d)
Erosion and sediment control measures required as a condition
to grading, building, or other permits;
(e)
Any private streets to be constructed in a subdivision;
(f)
Any privately-owned site-related improvements, including but
not limited to fencing, landscaping, buffering, internal sidewalks,
lighting, paving, private recreational facilities and pavement marking,
required by this chapter but not completed prior to issuance of occupancy
certificate.
(2)
Provided the developer and the City Council have agreed on the
delineation of sections within the proposed development, the developer
shall not be required to furnish to the City Council a performance
guarantee in the amount of the estimated cost of construction of facilities
to be dedicated for public use within each section of the development
until such time as construction plans are submitted for the section
in which such facilities are to be located.
(3)
No performance guarantee shall apply to, or include the cost
of, any facility or improvement unless such facility or improvement
is shown or described on the approved plat or plan of the project
for which such guarantee is being furnished. The terms, conditions,
and specifications contained in any agreement, contract, performance
agreement, or similar document, however described or delineated, between
the City and an owner or developer of property entered into pursuant
to this section in conjunction with any performance guarantee shall
be limited to those items depicted or provided for in the approved
plan, plat, permit application, or similar document for which such
performance guarantee is applicable.
C.
Amount.
(1)
The required guarantee shall be provided in the following total
amount:
(a)
The total estimated cost of construction based on unit prices
for new public or private sector construction in the City; plus
(b)
Prior to July 1, 2014: an additional 10% of the total estimated
cost of construction, which shall constitute a reasonable allowance
for estimated administrative costs, inflation, and potential damage
to existing roads or utilities, or
(c)
On or after July 1, 2014: an additional 25% of the total estimated
cost of construction, which shall constitute a reasonable allowance
for estimated administrative costs, inflation, and potential damage
to existing roads or utilities.
(2)
The owner or developer shall submit a written itemized estimate
of the total estimated cost of construction, certified as being accurate,
as part of his request for development approval.
(3)
The Development Administrator may establish a uniform unit price
schedule for common construction items, using locally developed figures
or industry-recognized standards, to be included in the City's Development
Procedures Manual. The Development Administrator shall consider this
schedule, and shall consider the estimate provided by the owner or
developer, and shall then make a determination as to the total estimated
cost of construction based on unit prices for new public or private
sector construction.
D.
Form of guarantee.
(1)
The following forms of guarantees may be used to satisfy the
requirements of this section:
(a)
The owner or developer may:
[1]
Certify to the City Council that the total estimated construction
costs have been paid to the person constructing such facilities or,
at the option of the City Council; or
[2]
Present evidence satisfactory to the City Council that the time
for recordation of any mechanics lien has expired or evidence that
any debt for said construction that may be due and owing is contested
and provide indemnity with adequate surety in an amount deemed sufficient
by the City Council or the Development Administrator.
(b)
The owner or developer may furnish to the City Council a certified
check or cash escrow in the amount of the estimated costs of construction
or a personal, corporate or property bond, with surety satisfactory
to the Development Administrator, in an amount sufficient for and
conditioned upon the construction of such facilities, or a contract
for the construction of such facilities and the contractor's bond,
with like surety, in like amount and so conditioned.
(c)
The owner or developer may furnish to the City Council a bank
or savings institution's letter of credit on certain designated funds
satisfactory to Development Administrator as to the bank or savings
institution, the amount and the form.
(2)
All performance guarantees shall provide that such bond, letter
of credit, or other agreement shall not be terminated, canceled, or
modified without at least 30 days' prior written notice by certified
mail to the Development Administrator.
(3)
All performance guarantees shall provide for the completion
of construction of all facilities within a time to be determined by
the Development Administrator.
(4)
Any bond shall be issued by an insurance company licensed to
transact fidelity and surety insurance business in Virginia, and shall
be a company holding a certificate of authority as acceptable surety
on federal bonds or an acceptable reinsuring company per the United
States Department of the Treasury's Listing of Certified Companies
current annual circular. The surety, when notified of the owner or
developer's default, shall elect either to perform in the owner or
developer's stead or to pay the face amount of the bond, or any lesser
amount determined by the Development Administrator. The surety shall
agree to provide said funds to the City prior to the performance of
the work, based upon the Development Administrator's estimate of the
funds required.
(5)
Any letter of credit shall specify Uniform Commercial Code or
Uniform Customs and Practice for Documentary Credits, be irrevocable,
and contain an automatic renewal clause. The lending institution issuing
the letter of credit shall be insured by the FDIC or FSLIC and have
a place of business within 50 miles of the City of Fredericksburg.
In case of failure on the part of the owner or developer to complete
the specified improvements within the required time period, the lending
institution shall pay to the City immediately and without further
action such funds as are necessary to finance the completion of the
facilities, in accordance with the Development Administrator's estimate,
up to the limit of credit stated in the letter.
(6)
Any cash escrow account shall be established with a financial
institution approved by the Treasurer and insured by FDIC or FSLIC.
The escrow account shall be held in trust until released by the Development
Administrator and may not be used or pledged by the owner or developer
as security in any other matter during that period. In the case of
failure by the owner or developer to complete the facilities, the
escrow agreement shall provide that the financial institution shall
immediately make the funds in the account available to the City for
use in the completion of those facilities. The owner or developer
shall pay a nonrefundable $200 administrative fee to cover the City's
legal and administrative review costs for any proposed cash escrow
agreement. All such agreement shall be reviewed and approved by the
City Attorney. Any such agreement shall be approved only if it affords
protection to the City equivalent to a corporate surety bond.
(7)
Additional terms, conditions, and forms for guarantees shall
be set forth in the City's Development Procedures Manual.
E.
Extensions of time. If guaranteed facilities are not timely completed
in a manner acceptable to the City, the Development Administrator
may proceed via the provisions for default, below, or grant an extension
of time for the completion of facilities, not to exceed one year,
provided that:
F.
Partial release.
(1)
Upon the completion of at least 30% of the improvements covered
by a performance guarantee, the applicant may file a written request
with the Development Administrator for a partial release of such guarantee.
The developer shall be entitled to no more than three periodic partial
releases within any twelve-month period.
(2)
The Development Administrator shall act upon each written request
for a periodic partial release within 30 days of receipt thereof.
The Development Administrator may inspect the facilities for conformance
with the terms and conditions of the approved plan and specifications
for the facilities for which the performance guarantee is applicable.
Such request shall be granted unless the Development Administrator
notifies the subdivider or developer in writing of nonreceipt of approval
by an applicable state agency, or of any specified defects or deficiencies
in construction and suggested corrective measures prior to the expiration
of the thirty-day period.
(3)
The Development Administrator shall have the authority to require
that each request be accompanied by the certification of a professional
who is licensed to make such a determination that the required improvements
have been partially or finally completed in accordance with the approved
plans and specifications. Upon such certification, the City may accept
such improvements without further inspection.
(4)
Up to 90% of the original amount of the performance guarantee
may be released through periodic partial releases, based upon the
percentage of public facilities completed and approved by the City
or other agency having jurisdiction.
(5)
If no action is taken by the Development Administrator within
the thirty-day time period, the request for partial release shall
be deemed approved, and a partial release shall be granted to the
subdivider or developer.
G.
Final release.
(1)
Upon final completion of the facilities, the subdivider or developer
may file a written request for final release of the performance guarantee.
The Development Administrator may inspect the facilities for conformance
with the terms and conditions of the approved plan and specifications
for the facilities for which the performance guarantee is applicable.
(2)
Within 30 days of the receipt of the written request, the Development
Administrator shall either accept the facilities and release the remaining
guarantee or notify the applicant that the facilities are not accepted
and that there are specific defects or deficiencies in construction,
in which case the Development Administrator shall suggest corrective
measures.
(3)
As used herein, "acceptance" means the public facility is accepted
by and taken over for operation and maintenance by the City.
(4)
If the Development Administrator fails to act within the thirty-day
time period, then the applicant may make an additional request in
writing for final release, sent by certified mail to the City Manager.
The City Manager shall act within 10 working days of receipt of this
request. If no action is taken, the request shall be deemed approved
and final release granted to the applicant.
(5)
The Development Administrator shall require submission of as-built
plans for public facilities, demonstrating compliance with all City
requirements, the receipt of which shall be a condition precedent
to final release of any performance guarantee.
H.
Default. In the event of default in the construction of guaranteed
facilities, the Development Administrator is authorized to take such
action as may be required to protect the City and the public, including,
but not limited to:
(1)
Require recalculation and reassessment of security, and, if
deemed advisable, the substitution of a more desirable form of security;
(2)
Draw or make demand on the owner or developer's security;
(3)
Contract for the completion of the work, following the rules
for public procurement;
(4)
Enter the property for purposes of completing the work; and
(5)
Bring an action at law against the owner, developer, and/or
surety.
I.
Guarantees associated with conditional rezoning. Whenever a performance
guarantee is required by the terms of a conditional rezoning, the
Zoning Administrator shall employ the procedures provided in this
section to establish the amount of the guarantee, the form of the
guarantee, and extensions of time, as set out in this section or other
applicable portions of this chapter. The reduction or release of the
guarantee shall be decided by City Council upon the submission by
the owner or developer of satisfactory evidence that the condition
has been met in whole or in part.
J.
As-built plan requirements.
(1)
All entities who construct public water or sewer lines, storm
drainage systems, bike paths, sidewalks, trails or streets to be maintained
by the City of Fredericksburg must submit an "as-built" set of construction
drawings for approval as a part of the City's acceptance process.
Additionally, entities constructing any stormwater management or stream
restoration facilities must submit an "as-built" set of construction
drawings. The initial submittal shall be three sets of "red-lined"
marked up prints, which should be delivered to the Department of Building
and Development Services. This submittal shall include recorded copies
of any public easements required with the project.
(2)
The as-built drawings shall clearly show any changes or variations
from the approved design. Horizontal variations greater than one foot
should be shown dimensionally or though plus stations. Horizontal
variations greater than five feet should also show the graphic relocation
of the object. Vertical elevation variations greater than two feet
shall be provided for all shown design elevations. A benchmark elevation
and benchmark description and location shall also be provided on each
plan sheet.
(3)
As-built plans for a surface stormwater management facility
shall include the following additional information:
(a)
Length, width, slope information and depth or contours (one-foot
intervals) of the pond area along with a verification of the original
design volume.
(b)
A benchmark on the riser, inlet headwall, or other approved
location.
(c)
Revised design computations verifying the functionality of the
pond. Computations shall be submitted, along with an additional paper
copy of the as-built plans.
(d)
The grading/storage volumes must be approved by Building and
Development Services prior to landscaping/planting. All plantings
must be added to the as-built plans after plant installation. As-built
plans will not be approved without required plantings.
NOTE: If as-built data shows that the constructed facility varies
from the original design storage elevations by greater than or equal
to 1%, the variations will have to be corrected (regraded) prior to
submission for review unless storage is verified. All constructed
features not previously approved on the original construction drawings
will need to be modified to adhere to the approved plans or be approved
after the fact.
(4)
All as-built information shall be blocked in and shown on the
original construction drawings.
(5)
The as-built certificate [shown in Subsection J(7) below] shall be signed and sealed by a professional who is licensed to make such a certification and shall appear on the cover sheet of the as-built plan set. All sheets included in the permit set must be submitted in the final as-built set.
(6)
Once the City has determined that the as-built information is
satisfactorily shown, the design professional will be notified to
submit Mylars for as-built approval. The as-built information shall
preferably be shown on the original construction drawings (i.e., the
original Mylars with the permit approval stamp and design professional
seal). Placing as-built information upon a scanned image or other
reproduction of the original construction drawings may be acceptable
so long as the quality, integrity, and legibility of the original
drawings are substantially preserved without undue compromise. As-built
drawings will be scanned by the City for archiving, so both the as-built
and original information must be sufficiently discernible. The as-built
plat set shall be submitted for signature and shall contain the same
red-lined information as approved in the as-built review. No paper
prints, paper or Mylar sepias will be accepted.
(7)
As-built certificate:
I hereby certify that the information shown on this record drawing
is an accurate and complete representation of data established from
field information obtained under the direction of a professional land
surveyor or a professional engineer, and that the physical dimensions
or elevations shown thus: "58.67'" are as-built information and the
facility was constructed according to the approved plans, except as
otherwise noted hereon.
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Name, License #
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Title, Date
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Additional As-Built plan information for streets:
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i
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Street names;
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ii
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R/W width (feet);
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iii
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Pavement width (feet);
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iv
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Center line (miles);
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v
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Number of lanes;
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vi
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FUNC class; and
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Confirm that streets have been recorded and dedicated.
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