A.
Effect of requirement. If an owner or developer is required under the provisions of this Chapter 18:1 to furnish a guarantee, a zoning approval may not be given under Article XXIV of this Part 7 for any portion of the project to which the guarantee relates until authorized surety is
provided in accordance with this article.
[Amended 4-24-2007 by Ord. No. 07-03]
B.
Sectional development. If a development is approved for construction in sections or
stages, a guarantee is required with respect to all required
improvements necessary to the proper operation and function
of the section in question, even though the required improvements may be located outside of that section or stage.
C.
Exception.
(1)
Notwithstanding Subsection A of this section, if preliminary approval has been given to a project under Article XXV or XXVI of this Part 7 and authorized surety has
been furnished, the Planning Director may issue a zoning approval necessary to complete a required, related
off-site improvement (including streets, sidewalks, sanitary and storm
sewers, streetlights, and street trees) that is part of the preliminarily
approved project.
A.
Liability of County. Nothing in this
article shall be construed to obligate the County Commissioners, the Planning Commission, the Department, or any officer, employee, agent, or attorney of the County with respect to any aspect of a required improvement or its construction.
B.
Benefit guarantee. No person, including
a contractor, a subcontractor, or a person who supplies
materials with respect to a required improvement,
shall have any interest in any guarantee furnished under this article,
as third party beneficiary or otherwise.
The Planning Commission may adopt general rules and regulations, consistent with this Chapter 18:1, relating to its duties with respect to guarantees.
A.
Form.
(1)
A separate guarantee shall be required with
respect to each required improvement.
(2)
A letter of credit or cash deposit shall be
used only when authorized by the Planning Commission.
(3)
A bond or letter of credit shall be in one instrument
and executed or issued by the same company or financial institution.
B.
County Commissioners. All authorized surety shall be issued in favor of and be enforceable
by the County Commissioners of Queen Anne's County.
C.
Conditions of performance guarantee. A performance guarantee shall provide guarantees
of:
(1)
Complete performance by the owner or developer of all terms and conditions of this Chapter 18:1 and any conditions imposed by the Planning Commission with respect to the required improvement;
(2)
Payment of labor and materialmen who furnish
labor, services, or material with respect to the required
improvement; and
(3)
Reimbursement to the County Commissioners, and any officer or employee of the County, with
respect to all costs, expenses, damages, injury, or loss to which
the County, officer, or employee may be subjected
by reason of any wrongdoing, misconduct, want of care or skill, negligence,
or default upon the part of the owner or developer or any contractor or subcontractor employed with respect to the required improvement that arises from or in any way relates
to the required improvement.
D.
Conditions of maintenance guarantee. A maintenance guarantee shall:
(1)
Provide guarantees for the proper maintenance
of the required improvement and for the correction
of any defects with respect to materials and workmanship in the required improvement; and
(2)
Include a performance guarantee with respect to any work or other activity done in connection with
the maintenance or correction.
E.
Duration. The Planning Commission shall require that a performance guarantee continue
for at least the period approved for completion of the required
improvement and may require that a maintenance guarantee, in the same or a lesser amount, continue thereafter for a reasonable
period that the Commission deems necessary to assure the quality of
the workmanship and materials provided for the required improvement and for its proper maintenance.
F.
Approval. An authorized surety shall
be subject to approval by the County Attorney or
the attorney for the Planning Commission as to form
and legal sufficiency.
A.
Amount. A surety bond shall be in an amount equal
to 125% of the estimated cost of the required improvement as determined by the Planning Commission.
B.
Recordation. A bond must be recorded by the owner
or developer, and a copy of the recordation fee receipt
must be filed with the Planning Director.
A.
Amount. A letter of credit shall be in an amount equal
to 110% of the estimated cost of the required improvement as determined by the Planning Commission.
A.
Amount. A cash deposit shall be in an amount at least
equal to the estimated cost of the required improvement as determined by the Planning Commission.
B.
Agreement.
(1)
The cash deposit shall be subject to the terms
of a written agreement, approved by the Planning Commission and signed by the Planning Director and the owner
or developer.
(2)
The agreement shall contain:
(a)
The conditions required or authorized for a performance guarantee;
(b)
A specific statement of the several phases of
work or construction involved in the required improvement;
(c)
The amount that may be released upon the completion
of each phase;
(d)
A release by which the person making the deposit relieves the County Commissioners or any other officer or employee of the County of
any responsibility resulting from the insolvency, delinquency, or
other defalcation of a financial institution in which a cash deposit
is held, if the institution is authorized to accept deposits under
the laws of Maryland; and
(e)
Such other terms as the Planning Commission deems appropriate.
C.
Deposit of funds.
(1)
Cash deposited under an agreement shall be deposited
with the County.
(2)
The designated County official
shall give the person making the deposit an official
receipt, stipulating that the cash has been deposited subject to the
provisions of this section and the terms of the agreement.
(3)
In the event of any default under the terms
of the agreement, any interest earned on the deposit shall be added
to the amount of the original guarantee then held by the County and shall be fully available for purposes of satisfying that default.
(4)
If there is not a default, interest earned on
the deposit shall be refunded to the owner or developer at the time of final release.
D.
Releases generally.
(1)
Cash deposited with respect to a performance
guarantee may not be released, in whole or part, until a
release covering the work completed has been filed with the Planning Director and signed by the contractors and persons who furnished materials with respect to the required improvement indicating that they have been paid
for the work and materials.
(2)
The Planning Director may rely
conclusively upon a document that:
E.
Partial releases.
(1)
After notice from the owner or developer that a phase has been completed, the Planning Director shall inspect the required improvement and, if
the Planning Director finds that the terms of the
agreement have been fulfilled in a satisfactory manner with respect
to that phase, shall certify that fact in writing to the designated County official.
(2)
Upon notification, the designated County official is hereby authorized to refund to the owner or developer the amount that may then be released under the
terms of the agreement.
F.
Final release. After certification by the Planning Director that the required improvement has been fully completed in accordance with the terms of the agreement,
the Planning Commission or its designee may authorize
that the remaining portion of the cash deposit be refunded to the
owner or developer or may direct that all or any
part of it continue as a maintenance guarantee.
Whenever authorized surety furnished
by an owner or developer (including, in the case
of a bond or letter of credit, the company or institution that issued
the authorized surety) shall be deemed by the County to be insufficient or unsatisfactory, the owner or developer, within 10 days after notice to that effect, shall
furnish and deliver new authorized surety to the County, in the same penalty and on the same conditions and
in a form satisfactory to the County. This duty shall
continue on the part of the owner or developer whenever
and so often as the County shall require new authorized surety. If the owner or developer fails to furnish the authorized surety within 10
days after said notice, further work may not be performed by the owner
or developer and inspections or approvals may not
be given by the Planning Director until satisfactory
bonds have been furnished.
A.
"Amendment" defined. As used in this section, an amendment
includes the filing of new or substitute authorized surety.
B.
In general.
(1)
At any time after an authorized surety is given and prior to the time when the County Commissioners have taken any action to enforce an authorized surety, the Planning Commission may for good cause shown
by the owner or developer allow the amendment of
an authorized surety in accordance with this section.
(2)
The request for amendment shall be filed, in
writing, with the Planning Director.
C.
Reasons. An amendment shall be allowed only when it
is shown to the satisfaction of the Planning Commission that:
(1)
Specified circumstances have arisen that were
unforeseen at the time when the original authorized surety was accepted;
(2)
The circumstances were beyond the reasonable
control of the owner or developer;
(3)
(3) The amendment will not
have an adverse effect upon or undue delay on the satisfactory completion
of the required improvement or the project to which
it relates; and
E.
Effect of section. The right of an owner or developer to request that an authorized surety be amended, or the filing of any such request, may not delay or
otherwise affect in any manner the right of the County Commissioners to enforce an authorized surety, including an amended authorized surety, at any time prior to the time when it
has been actually amended in accordance with this section.
The developer, applicant, or
other person seeking approval has sole responsibility
for the preparing of covenants, obtaining all required
signatures, and paying all costs of recordation.
A.
In general.
(1)
A site plan, subdivision, zoning approval, or other activity that involves
the establishment of any covenant required by this Chapter 18:1 or for which standards are imposed by this Chapter 18:1 may not be finally approved until all covenants:
(a)
Are submitted by the developer;
(b)
Are found by the Planning Commission to fulfill all requirements of this article and other provisions of this Chapter 18:1 that require or authorize covenants; and
(c)
Are recorded or delivered to the Planning
Director to be recorded among the land records of the County.
(2)
All covenants shall be approved
as to form and legal sufficiency by the attorney to the Planning
Commission prior to recordation.
(3)
The approvals of the Commission and its attorney
shall be in writing and placed on the face of the instrument containing
the covenants.
B.
Modification. The provisions of this Chapter 18:1 that require covenants shall be waived or modified
by the Planning Commission to the extent, if any,
to which they are prohibited by the Maryland Homeowners Association
Act, Title 11B of the Real Property Article of the Annotated Code
of Maryland.
B.
Description of land. The instrument shall describe
each subject area by:
D.
Description of restrictions. The instrument shall
contain covenants that fully define the manner and
rights of use of any land that is made subject to
a covenant.
[Amended 9-7-2004 by Ord. No. 04-27]
E.
Nature and scope of covenants. The instrument shall
contain express provisions that:
[Amended 9-7-2004 by Ord. No. 04-27]
(1)
Each covenanter has been fully compensated for
any restrictions or other covenants that restrict
or otherwise affect any land to which a covenant relates;
(2)
All covenants are made by the
covenanter for the covenanter and the covenanter’ s heirs, successors,
personal representatives, and assigns.
(3)
All covenants are binding upon
each covenanter and the covenanter’s heirs, successors, personal
representatives, and assigns;
(4)
All covenants run with and
bind all land within the subject area;
(5)
All covenants are enforceable
by the County Commissioners or any department, agency, or other public body empowered by law or ordinance
to enforce the Zoning Laws of Queen Anne’s County;
(6)
A covenant may not be amended
or changed in any manner without prior written approval of the Planning Commission or other agency or person duly authorized by the County to
approve the change or amendment; and
(7)
Any open space restrictions
established by the instrument shall be null and void and of no force
and effect following:
(a)
Annexation of the open space by a municipal corporation within Queen Anne’s
County; and
(b)
Final approval by the municipal corporation of a subdivision or site plan that
would permit uses other than those uses authorized in the instrument; and
(c)
The execution of a release in recordable form
by the County Commissioners releasing the land from
the force and effect of the instrument. The execution of such release
shall be in the sole and exclusive discretion of the County Commissioners.
F.
Additional provisions. An instrument containing covenants may include one or both of the following:
[Amended 9-7-2004 by Ord. No. 04-27]
(1)
As to any person who is a "covenanter"
solely by reason of the fact that the person holds
a mortgage, deed of trust, or other lien or encumbrance on any part
of the subject area, a provision that:
(a)
The covenants are executed
by the person solely for the purpose of subordinating
the mortgage, deed of trust, or other lien or encumbrance to the lien,
operation and effect of the covenants; and
(b)
The covenanter has no personal responsibility,
unless the covenanter thereafter becomes a lot owner, as to all or any part of the subject area; and
(2)
Provisions that impose other restrictions upon
any part of the subject area or impose other duties
upon lot owners, if the additional provisions:
G.
Emergency services provisions. An instrument containing covenants may include provisions for establishing and collecting
an assessment to provide a periodic emergency service fee from each dwelling unit or lot in the development payable to the local volunteer fire department providing primary
service to the development.
[Added 6-24-2008 by Ord. No. 08-07]
A.
In general.
(2)
Covenants relating to common areas shall insure that the common areas:
(a)
Are used and maintained for the common benefit
of all lot owners within the subject area and in such manner that the common areas will remain
attractive and useful to lot owners; and
(b)
Will not be injurious to the health, safety,
and welfare of residents of surrounding areas or detrimental to property
values of land and improvements within the subject or surrounding
areas.
B.
Exception. The Planning Commission may authorize that a covenant be imposed for the
benefit of two or more, but fewer than all, parcels of land within
the subject area:
C.
Required covenants. A covenant that affects common areas shall describe each common area in the same manner as required for the description
of a subject area and contain detailed provisions
that:
(1)
Ensure that the common area is maintained for the common use of all or specified lot owners;
(2)
Are expressly stated to inure to the benefit
of the persons designated to administer the common area, any lot owner who has any
right or duty with respect to the common area, and
the County;
(3)
Provide that a person, other
than the owners from time to time of private lots within the subject area, may not acquire any interest
in a common area (other than a common area specifically dedicated to use by the public in
general) without prior written approval of the Planning Commission or other agency or person duly
authorized by the County Commissioners to give such
approval; and
(4)
Provide that all covenants are
enforceable by:
(a)
The administrator hereafter mentioned;
(b)
Any lot owner who has a right
or duty with respect to the covenant sought to be
enforced; or
(c)
The Planning Commission or
other agency or person duly authorized
by the County Commissioners, except that the authority
of the Planning Commission is permissive only and
the Planning Commission or other designee of the County has no affirmative duty at any time to enforce any covenant.
D.
Rights and obligations. A covenant that confers any right upon a lot owner or provides
for any charge, assessment, or other duty upon land in the subject area or upon a lot owner shall
complement the provisions of the required covenants and shall:
(1)
Define the rights that each lot owner has with respect to the subject area, including
rights to participate in the selection of an administrator and decisions
with respect to the operation and maintenance of the common
area;
(2)
Specify the nature and extent to which each lot owner has a duty to contribute to the repair, upkeep,
or other maintenance of the common area;
(3)
Prescribe an equitable means for assessment
of the costs and expenses of the repair, upkeep, and other maintenance
against land (except common areas and lands owned
by the County or other governmental agency) and lot owners within the subject area;
(4)
Provide that the amount of any unpaid assessment
is to bear interest at a legal rate after the expiration of 30 days
from the date of the assessment;
(5)
Provide that the assessment and interest are
the personal obligation of the person who then owns
the land against which the assessment is made and also constitute
a lien upon the property of that lot owner; and
(6)
Provide that an action may be brought to recover
any assessment and interest and/or to enforce the lien in any manner
authorized by law, including an action brought in accordance with
the Maryland Contract Lien Act.
(7)
Provide that any amendment shall
be approved by the Planning Director before the amendment is effective and recorded.
E.
Administrative covenants. Administrative covenants shall provide for:
After approval by the Planning Commission, the Planning Director shall:
