COMCOR 19.10.01 Certificates of Guarantee for Erosion and Sediment Control and Stormwater Management

In accordance with procedures authorized in Chapter 19, Article I, title "Erosion and Sediment Control" Sections 19-10 and 19-17, Article II, title "Stormwater Management", Sections 19-31 and 19-32 of the Montgomery County Code 1984, as amended, the following Executive Regulation pertains to the establishment and use of Certificates of Guarantee to satisfy the requirements of Chapter 19, Sections 19-10 and 19-32 of the Montgomery County Code 1984, as amended.

A. Any organization interested in applying to the Department of Environmental Protection (DEP) for approval to issue Certificates of Guarantee, pursuant to Chapter 19, Sections 19-10 and 19-32 of the Montgomery County Code, 1984, as amended, must submit to DEP a written request for such approval. The written request must be signed by the president or chief executive officer of the organization. The written request must set forth each of the Application Standards, as listed below, and must explain in detail how the applicant meets or exceeds each Application Standard.

B. Application Standards:

1. Structure of Approved Organization:

a. The organization must be incorporated under the laws of the State of Maryland and must be in good standing under said laws at the time of application. The organization must file a copy of its charter with DEP. It is the duty of the organization, once approved, to file copies of all charter amendments with DEP, and ensure that its corporate charter is not forfeited or revoked during the time it is issuing Certificates of Guarantee.

b. The principal office of the organization must be located in the State of Maryland and the address must be listed on the application.

c. The organization must have a resident agent, as required by Maryland Corporation Law. The organization must inform DEP on the application of the resident agent's name and address. It is the duty of the organization, once approved, to notify DEP of all changes in the resident agent's name and address.

d. The organization must have adopted working by-laws, copies of which must be filed with DEP. It is the duty of the organization, once approved, to file copies of any changes to the by-laws with DEP.

e. The organization must have a board consisting of not less than three (3) directors. The board of directors is responsible for setting the policy of the organization. Additionally, the board of directors is responsible for admitting new members (although it may delegate this responsibility to a specific committee), suspending or terminating existing members, approving project applications, and taking action with respect to members who are experiencing difficulty in connection with an individual project.

f. The officers of the organization must be elected at least annually and must consist of at least a president and a secretary/treasurer. The president presents such matters to the board of directors (as require board approval) and controls and directs the activities and business of the organization through its executive officer and staff. The treasurer is responsible for reporting the financial condition of the organization, submitting an annual budget for the board's approval, and obtaining an annual audit of the organization's financial records. The secretary is responsible for keeping the minutes of the Board of Directors and preserving them as a permanent record.

g. The organization must have an executive officer who is responsible for handling the routine or day-to-day affairs of the organization.

h. The organization must employ legal counsel who is admitted to practice before the Court of Appeals of Maryland. It is the duty of the organization to notify DEP of the name, address and telephone number of its legal counsel on the application and whenever the legal counsel changes.

i. The organization must maintain normal business hours, from approximately 9:00 a.m. to 5:00 p.m., five days a week, weekends and holidays excepted. The office must have a listed telephone number which is operational during business hours.

j. The organization or its members must be able to demonstrate experience and technical competence in the supervision of .the construction of public and private improvements in connection with the development of property for residential, commercial or industrial use, including, without limitation; grading, street and road construction, sediment control and stormwater management (hereinafter referred to as Guaranteed Work).

2 . Meetings:

a. The organization must hold its annual meeting at a date, time and place which has been communicated in writing to DEP at least twenty (20) days in advance. DEP may, at its discretion, send a representative to the annual meeting.

b. The organization must hold regular meetings, on at least a monthly basis, at a date, time and place which has been communicated in writing to DEP at least ten (10) days in advance of each meeting. DEP may, at its discretion, send a representative to any or all of such meetings.

c. The organization must maintain at its business office, a corporate record book which contains, inter alia, minutes of all the organization's meetings signed by the secretary. The corporate record book must be open for inspection, during business hours, to a representative of DEP.

d. At the regular and annual meetings the business of the organization must include the admission of new members to the organization, suspension or termination of members of the organization, consideration and approval of applications by members for a Certificate of Guarantee and consideration of any pending Certificates of Guarantee in which the organization has been informed that a member of the organization is experiencing difficulty in construction of the Guaranteed Work.

3. Financial Responsibility:

a. The organization must have monetary assets of at least 5% of the total amount of the outstanding Certificates of Guarantee. The cost of the Guaranteed Work is as set forth in the permit issued by Montgomery County.

b. The organization must hold the aforesaid monies, in a federally or state insured interest-bearing account as determined by the board of directors.

c. The organization must, at the request of DEP, from time to time, promptly inform DEP of the amount of monies being held by the organization and the manner in which said monies are being held.

d. The organization must employ a certified public accountant to prepare an annual profit and loss statement. Monthly financial reports may be signed by the organization's vice-president or treasurer. A copy of these financial documents must be forwarded, upon completion, promptly to DEP.

4. Membership:

a. In those cases where the organization is wholly owned by a parent corporation, the organization may require, as a condition of membership in the organization, that the member also be a member in good standing of the parent corporation. Said parent corporation may restrict membership in the parent corporation to those members who share a common business purpose, e.g., builders or developers, provided said restriction has a rational basis, and further provided there is no discrimination among prospective members based on race, creed, color, sex, age or national origin.

C. Review and Approval of Applications by DEP:

Upon receipt of the written application from an organization for approval to issue Certificates of Guarantee, and upon receipt of any and all additional information which DEP may reasonably require, DEP must, within thirty (30) days, notify the applicant, in writing, of the director's decision. Any decision not to approve an organization must contain a written explanation of the reason or reasons for disapproval. Any organization aggrieved by the Director's decision may submit further written material to the director in writing within ten (10) days from receipt of the decision of disapproval. Upon reconsideration by the Director a written decision must be issued to the organization, in writing, within fifteen (15) days after receipt of the written materials. The decision of the Director is final except for further judicial review otherwise provided by law.

This regulation will take effect 30 days after the date of adoption by the County Council.