§ 10A-141. Negotiated Participation Agreements.

(a)

The requirements of this Subdivision shall be applicable under the following circumstances:

(1)

The Director of the Department of Permitting, Inspections, and Enforcement makes a determination that a regional stormwater management facility is desirable for a new development and certifies to the County Executive, the Purchasing Agent, and the Supplier Development and Diversity Division that the estimated construction cost of the facility exceeds the estimated cost of providing required on-site controls; or

(2)

The Director of the Department of Permitting, Inspections, and Enforcement certifies to the County Executive, the Purchasing Agent, and the Supplier Development and Diversity Division that:

(A)

Certain public road improvements abutting or within a new development are required as a consequence of the development; and

(B)

The estimated cost of the construction of the road improvements by the County exceeds the estimated cost of construction by the developer; or

(C)

The developer can cause the construction to occur on an accelerated basis in advance of planned commencement and completion of the road improvements by the County and would be otherwise required to pay at least seventy-five percent (75%) of the cost of the road improvements on a special assessment or similar basis.

(b)

Any construction activities towards which County funds are contributed when either of the certifications specified in Subsection (a) has been made shall not be subject to the competitive procurement requirements of this Subtitle provided the requirements of Subsection (c) are met.

(c)

Subsection (b) shall apply provided the County and the developer have entered into a written agreement wherein the developer shall:

(1)

Be required to competitively procure the construction of the regional stormwater management facility or road improvements; a minimum of three certified quotes or bids for all construction costs related to the stormwater management facility or road improvements shall be provided to the Director of the Department of Permitting, Inspections, and Enforcement and the Purchasing Agent for review;

(2)

Be required to post or cause to be posted a performance bond executed by a surety company authorized to do business in this State, or the equivalent in cash, or other security satisfactory to the County, in the amount equal to or greater than the total cost of the facility or road improvements as estimated by the appropriate Director, including an additional twenty-five percent (25%) of the cost for contingencies, as determined at the time the bond is posted, to insure the satisfactory performance and complexion of the facility or road improvements;

(3)

Be required to post or cause to be posted a payment bond executed by a surety company authorized to do business in this State, or the equivalent in cash, or other security satisfactory to the County, in an amount not less than fifty percent (50%) of the estimated cost of the facility or road improvements for the protection of all persons supplying labor and materials, including lessors of equipment to the extent of the fair rental value thereof, to the contractor or his subcontractor in the prosecution of the work provided for in the contract for the use of each such person;

(4)

Be required to submit to a County audit when it has been determined that an audit is necessary to insure County contribution funds are properly used and to determine the actual cost for constructing the regional stormwater management facility or road improvements;

(5)

Be required to certify that no person who is currently suspended, barred, or debarred from participation in contract activities for any government will be used to perform any of the work on the facility or road improvements during the period of any suspension, barment, or debarment;

(6)

Be required to comply with such laws and regulations as may be generally applicable to stormwater management activities and road improvements in the County; and

(7)

Be required to subcontract with Minority Business Enterprises for no less than thirty percent (30%) of the amount of County funds contributed with respect to such construction; provided, that if a developer is unable to achieve the Minority Business Enterprise goal set forth in Section 10A-141(c)(7), the developer may request in writing a waiver of the goal, to include the elements of justification set forth in Section 10A-136(g) of the Code. After consultation with the Supplier Development and Diversity Division, the Purchasing Agent shall grant such waiver only upon finding that the developers have made a good faith effort to achieve such goal and the public interest otherwise is served by granting such waiver.

(d)

Nothing in paragraph (c)(1), above, shall be deemed to preclude the developer from constructing the regional stormwater management facility or road improvements himself provided written justification is approved by the Director of the Department of Permitting, Inspections, and Enforcement, the Purchasing Agent, and the Supplier Development and Diversity Division.

(e)

Any agreement entered into pursuant to this Subdivision shall include such provisions as may be deemed appropriate by the Purchasing Agent to effect consistency with special policies set forth in other sections of this Subtitle such as (by way of example and not limitation) and restrictions concerning doing business with persons having business ties with South Africa.

(f)

Certification of cost estimates under Subsection (b) of this Section shall be made by application of standards regularly used by the County in estimating construction costs for County projects.

(CB-1-1992; CB-2-2008; CB-68-2012; CB-27-2014)