Current through Register 1531, September 27, 2024
(1)
Applicability. The DEC shall require a performance
guarantee for any or all of the following Unified Permits components:
(a)
Plans For a New Subdivision
Road. The creation of roadways to provide frontage and access for
lots, involving construction or substantial grading of any of the following
improvements: streets and rights-of-way and all improvements therein (signs,
monuments, street trees and planting strips, sidewalks); construction of
utility system segment(s); earth removal and site alteration; drainage systems;
and other features associated with opening the area for development.
(b)
Site Plans. Site
preparation, including grading and earth removal; driveways and internal access
roads; landscaping; lighting; site drainage improvements; and other features
associated with the site plan.
(c)
Wetlands. Construction of any alterations and/or
required mitigation measures pursuant to a Wetlands Permit (Orders of
Conditions).
(d)
Historic. Major Architectural Alteration of Buildings
(and/or designated settings) within Devens Historic Districts, and subject to
Massachusetts Historical Commission approval.
(e)
Innovative or Residential
Development.
(2)
General
Requirements.
(a)
Form of Performance Guarantees. The DEC may require a
performance guarantee as a single, inclusive instrument involving all
components of a Unified Permit or, at the Director's discretion, may accept
more than one type of instrument.
The following irrevocable Performance Guarantee instruments may
be used by Applicants:
1. A
performance insurance bond
2. A
properly pledged passbook or other surety document or instrument that has been
secured by the applicant in a recognized, State chartered, savings or lending
institution
3. Other negotiable
surety acceptable to the DEC, inclusive of a properly pledged and executed
lenders agreement or letter of credit
(b)
Agreement. The
DEC shall enter into a written agreement with the Applicant whenever a
Performance Guarantee is required. This document shall describe all pertinent
terms and conditions, including the physical improvements being secured, the
amount of money involved, and the obligations and rights of the parties under
the agreement.
(3)
Guarantee Amount and Value.
(a) The Director shall determine the amount
of the guarantee, considering the scale of the proposed project and the
potential risk.
(b) The Applicant
shall submit to the Director an estimate of the cost of construction related to
implementing the Permits(s). The estimate shall be prepared by an engineer or
other suitably qualified professional, and shall include general quantities of
materials and costs associated with construction (all calculated by linear
foot, cubic yard, square foot, and other appropriate itemizations of
quantities).
(c) For a Unified
Permit, the estimated construction costs should include the full range of
improvements starting with the earliest earth removal (associated with
improvements) from the subdivision of land, and proceeding to improvements
associated with the construction of a building. For Partial Permits, the
estimated construction costs should only include the improvements associated
with the Permits being sought.
(d)
For phased construction, the DEC may allow Performance Guarantees for
individual phases with the amounts calculated for a specific phase,
particularly in situations when the phases in and of themselves result in the
complete construction of a portion of the entire project. The Director may also
allow the Performance Guarantee instrument to be used for each phase
successively on the completion of the preceding phase.
(4)
Release.
(a) Based on a written request by an
applicant that includes an estimation of the remaining site completion costs,
and based on an inspection conducted by DEC staff, the Director shall determine
whether a release of a performance guarantee is warranted.
(b) The Director shall, within 14 days of
receipt of such request render a decision to either reduce, release, or
maintain the value of the performance guarantee posted by an applicant. In the
event the Director determines the original guarantee amount should continue to
be held or elects to retain a greater amount than that requested to be released
by the applicant, the Director shall list the reasons for its decision and the
improvements that still need to be completed.
(c) Resolution of disputes related to a
partial or full surety release shall be by means of the Reconsideration process
described in
974 CMR 1.11. Partial
release points are permissible at distinct construction milestones, at the
discretion of the Director.
(5)
Certificates of Occupancy and
Performance Guarantees. A Certificate of Occupancy shall not be
issued if any work items, whether in the building or site improvements
associated with the Permit, remain incomplete. A temporary Certificate of
Occupancy may be issued by the Building Official provided sufficient surety has
been posted with the Director for any outstanding site improvements.
(6)
Conversion to Another Form of
Performance Guarantee.
(a) The
Director may allow the form of a performance guarantee to be revised or
substituted with an alternative form of security. If the alternate performance
guarantees are deemed by the Director to be equally as protective of the public
interest as the preceding form of security, they will be granted. Where an
Applicant proposes to change a performance guarantee instrument, a written
request shall be given to the Director, that sets forth and includes:
1. The extent and scope of remaining work to
implement a Unified Permit to satisfy DEC requirements and/or
conditions;
2. An estimate, as
provided above, that reflects all remaining construction; and
3. The form and alternative type of guarantee
being proposed to secure all remaining improvements.
(b) The Director shall make a determination
on the sufficiency of the submitted estimate and the suitability of the
alternate form of security. If the estimate and alternative form of security is
deemed adequate, the new performance guarantee shall be appropriately pledged
and secured. An amended or new agreement may be required. On acceptance by the
Director of the new performance guarantee, the prior guarantee or security
provided shall be released.