A.
Before approving any subdivision or land development plan for recording, the Township Supervisors shall require that the applicant assure the Township, by means of a proper development agreement and performance guaranty, that the improvements required by this ordinance will be installed in strict accordance with the standards and specifications of this ordinance and the approved development plan, unless the applicant constructs all required improvements in advance of any buildings or any sale of lots, as specified in Subsection B below.
B.
Construction of improvements prior to final plan approval
or in place of financial security. An applicant may begin grading
and the construction of improvements (other than buildings) prior
to final plan approval. An applicant may also choose to construct
all required improvements prior to the construction of any buildings
and prior to the sale of any lots in place of providing financial
security. However, any construction of improvements prior to final
plan approval shall be at the risk of the applicant and may be required
by the Township to be reinstalled or modified if such construction
is not in compliance with the approved final plan and Township requirements.
Any earthmoving or work on improvements before final plan approval
or any construction of improvements prior to the posting of financial
security with the Township shall only occur if:
(1)
An approved sedimentation and erosion control plan
has been approved by the County Conservation District and is carried
out;
(2)
The Township, if it deems necessary, may require the
developer to show proof of basic liability insurance and to provide
a hold harmless agreement to the Township;
(3)
The applicant proves compliance with the Township's
tree preservation requirements;
(4)
The applicant establishes an escrow account to cover
the costs of inspections; and
(5)
Such work does not include construction of foundations
or any other portions of buildings or installation of utility laterals
or construction of driveways.
C.
No construction of buildings or sales of any individual
lot or condominium unit within a subdivision or land development shall
take place in any subdivision unless:
(1)
There is on file, with the Township, a current, duly
executed performance bond (and security escrow agreement, if necessary);
or
(2)
All grading is complete (other than finish grading
immediately around proposed buildings) and all required public improvements,
binder course of streets, utilities, drainage facilities and sewer
lines have been completed and determined to be acceptable to the Board
of Supervisors, based upon inspection by Township officials or their
designees.
D.
The applicant shall not be required to provide financial
security for the cost of any improvements for which financial security
is required by and provided to the Department of Transportation and
connected with the issuance of a highway occupancy permit pursuant
to Section 420 of the Act of June 1, 1945 (PL 1242, No. 428), known
as the "State Highway Law."[1]
[Added 2-19-2001 by Ord. No. 2001-298]
[1]
Editor's Note: See 36 P.S. § 670-101
et seq.
A.
In all cases, the subdivider or land developer shall
be responsible for the installation of all improvements required by
this ordinance.
B.
The Township Engineer or other Township designee shall
make such inspections of the required improvements at such intervals
as may be reasonably necessary to assure compliance with this ordinance.
The reasonable costs of such inspection shall be borne by the subdivider
or land developer, making use of an escrow account.
A.
Development agreement required.
(1)
All applicants proposing any subdivision or land development which provides for the installation of improvements required by this ordinance or any improvements required as a condition of the final plan approval shall be required to enter into a legally binding development agreement with the Township prior to recording of the final plan, unless the applicant agrees to meet § 165-44C, concerning the construction of all improvements prior to the construction of any buildings or the sale of any lots or homesites.
(2)
The development agreement shall guarantee the installation
of said improvements in strict accordance with all Township requirements.
(3)
The final plan shall not be approved for recording
by the Township Supervisors prior to the execution of this agreement
and the delivery of a required performance guaranty.
B.
Terms of development agreement. The development agreement
shall be acceptable in legal form to the Township Solicitor and shall
be acceptable in content to the Township Board of Supervisors. The
Township may require that a development agreement include any of the
following items, where applicable, and such additional items as are
necessary to carry out this ordinance:
(1)
A reference to approved plans that specify the types
and locations of improvements, such as streets, drainage facilities,
utility lines and other improvements. Such improvements may also be
described in an itemized list.
(2)
A work schedule setting forth the beginning and ending
dates of such work tied to the construction of the development and
provisions to allow proper inspection by the Township Engineer.
(3)
The provision of a performance guaranty for completion of required improvements in compliance with § 165-47, including a detailed breakdown of the estimated costs of the improvements, including the total amount of the performance guaranty.
(4)
Provisions concerning the developer's responsibilities
for damage to other property, including maintenance by the developer
of public liability insurance for the duration of improvements construction,
with a hold harmless clause to protect the Township from liability
related to such work. A copy or other evidence of such liability coverage
shall be provided to the Township prior to such work.
(5)
Provisions concerning measures to prevent erosion,
sedimentation and water damage to the subject and adjacent properties.
(6)
Provisions for the dedication of streets and water
and sewer lines and any other easements or improvements approved to
be dedicated.
(8)
Provisions for the developer to reimburse the Township
for all reasonable engineering costs directly related to the review,
construction and inspection of the proposed development and to the
review and preparation of the development agreements.
(9)
Provisions concerning any violations of the development
agreement.
(10)
Any other lawful terms which the Township Supervisors
may require to carry out the provisions of this ordinance.
(11)
Signatures. The development agreement shall
be signed by all responsible landowners and/or developers.
C.
Ownership of land and guaranty.
(1)
A certificate of ownership in the form of Appendix
C[1] shall be executed in the exact name in which title is
held. If the developer(s) of a subdivision is someone other than the
landowner(s) of the subdivision, the developer shall also execute
this affidavit, along with a performance bond and security agreements.
[1]
Editor's Note: Appendix C is included at the end of this chapter.
(2)
Change in ownership or developer. Any conveyance of
all or a substantial portion of the unimproved lots or public improvements
or streets of any subdivision or change in developers, whether voluntary
or by action of law or otherwise, shall require the prior approval
of the Township Supervisors. In giving or denying said approval, the
Township Supervisors shall require that such new landowner and/or
developer fully assume all applicable responsibilities under the development
agreement and post all the appropriate bonds and security agreements.
D.
Utility agreements. If a development will connect
into a public water or public sanitary sewage system, the applicable
authority, agency or company may also require separate development
agreements.
The performance guaranty for completion of required
improvements shall meet the following requirements:
A.
Security.
(1)
The guaranty shall be secured by the credit of any
of the following:
(a)
An irrevocable and unconditional letter of credit
of a federal- or state-chartered lending institution.
(b)
A restrictive or escrow account in a federal-
or state-chartered lending institution.
(c)
Such other financial security approved by the
Township Supervisors (which approval shall not be unreasonably withheld),
but not including a second or third mortgage on the unimproved lands.
(2)
Such bond or other security shall provide for and
secure to the public the completion of any improvements which may
be required within one year of the date fixed in the development schedule
(see § 165-38F) for the completion of such improvements.
(3)
Such financial security shall be posted with a bonding
company or federally issued or state-chartered lending institution
chosen by the party posting the financial security, provided that
said bonding company or lending institution is authorized to conduct
such business within the state.
(a)
The Township Supervisors may require that evidence
be provided that such institution or company has sufficiently adequate
and secure assets to cover the security.
(b)
The Township shall be an authorized signatory
on any account in which the escrow funds are held, and all escrow
funds from sales of lots shall be paid directly to such fund, and
a monthly statement shall be furnished to the Township.
B.
Establishing the improvements security amount.
[Amended 5-27-2008 by Ord. No. 2008-379]
(1)
Subsequent to final plan approval of any land development
or subdivision plan by the Board of Supervisors, the developer shall
prepare an improvements security estimate. If conditional final plan
approval has not been granted by the Board of Supervisors, or all
conditions of final plan approval (if any) have not been fulfilled
prior to the developer's submission of the improvements security estimate,
the Township reserves the right to require a revision of the estimate
to reflect any plan changes. The improvements security estimate shall
be established using pricing consistent with prevailing wage rates.
(2)
Prior to submitting an improvements security estimate,
the developer's project engineer shall consult with the Township Engineer's
office to confirm which plan project improvements are required to
be secured. The developer's engineer shall then submit an improvements
security estimate to the Township for review by the Township Engineer.
Where appropriate, a contingency shall be included in the construction
cost as part of the improvements security estimate to address unforeseen
items (sinkhole remediation, utility conflicts, etc.).
(3)
The amount of financial security to be posted for
the completion of the required improvements shall be equal to 110%
of the cost of completion, estimated as of 90 days following the date
scheduled for completion by the developer in the official development
schedule and within the process for increases to cover inflation as
permitted by the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
(4)
The improvements security estimate submitted on behalf
of the developer must be certified by a professional engineer registered
in the Commonwealth of Pennsylvania.
(5)
If the Township Engineer does not concur with the
submitted improvements security estimate, those items of disagreement
will be indicated on an annotated copy of the estimate, or on a revised
estimate form, which will be returned to the developer's engineer
for further consideration and resubmission, or for such further action
as acknowledged by the Municipalities Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 10101
et seq.
(6)
The final improvements security estimate ultimately
acceptable to the Township Engineer will then be transferred to standard
improvements security release certification forms by the Township
Engineer's office and returned to the developer with a standard cover
letter requesting that the developer thoroughly review the improvements
security release certification forms before certifying their accuracy.
The developer shall send the final forms directly to the Township,
as its formal submission, with a copy to the Township Engineer.
(7)
The developer shall be solely responsible for the
installation, construction, erection and/or completion of project
improvements. The developer shall not be relieved of its obligation
to provide for the same, even if the improvement security estimate
provided by the Township Engineer's office fails to include necessary
items of the project or is undervalued. In such event, the Township
may require the developer to post additional security in the required
form and amount to address the deficiency as a condition precedent
to proceeding with the development.
(8)
If all or portions of the required improvements are
satisfactorily completed by the developer prior to conditional final
plan approval, the provision of financial security to cover the costs
of constructing said improvements will not be required. However, maintenance
security for those improvements shall still be required once the Township
has accepted all required public improvements.
(9)
If the party posting the financial security requires
more than one year from the date of posting the financial security
to complete the required improvements, the amount of financial security
may be increased by a maximum of an additional 10% for each one-year
period beyond the first anniversary date from the posting of the financial
security or to an amount not exceeding 110% of the cost of completing
the required improvements as reestablished on or about the expiration
of the preceding one-year period by using the above procedure.
(10)
Multiyear or multistage development. In the
case where development is projected over a period of years, the Township
Supervisors may authorize submission of final plans by phases/stages
of development subject to such requirements or improvements guaranties
concerning future improvements as they find necessary for the proper
functioning of each phase and for the eventual development as a whole.
C.
Multiyear or multistage development. In the case where
development is projected over a period of years, the Township Supervisors
may authorize submission of final plans by phases/stages of development
subject to such requirements or improvement guaranties concerning
future improvements as it finds necessary for the proper functioning
of each phase and for the eventual development as a whole.
[Amended 5-27-2008 by Ord. No. 2008-379]
A.
In general. As the work of installing the required
improvements proceeds, the party posting the financial security may
request the Township Supervisors to release or authorize the release
of, from time to time, portions of the financial security necessary
for payment to the contractor(s) performing the work.
B.
Notice of completion. When the developer has completed
an improvement, the developer shall notify the Township and request
release of related financial security, in writing, to the Township
Supervisors by certified or registered mail. The developer shall send
a copy of the letter to the Township Engineer at the same time.
C.
Releasing of improvements security.
(1)
Prior to the formal submission of an improvements
security release request to the Township, the developer or its representative
shall first contact the Township Engineer's office and meet at the
project site for an informal preliminary consultation with the Township
Engineer's field representative. The purpose of the consultation is
for the developer and the Township Engineer's field representative
to review the extent of completion of each item of work listed on
the improvements security release certifications forms for the project.
Note that this preliminary consultation shall not be considered as
a submission for improvements security release process.
(2)
The Township Engineer shall then complete a suggested
draft of the improvements security release certification forms (retaining
10% of the total monies to be released, but not less than 15% of the
total costs of improvements offered for dedication to the Township)
and forward the draft forms — which reflect the suggested
security release amount established during the preliminary consultation
— to the developer for its consideration. To begin
the formal request for an improvements security release, the developer
shall review and, if acceptable, sign and submit the improvements
security release certification forms directly to the Township with
a copy to the Township Engineer.
(3)
The formal improvements security release submission
to the Township by the developer is to be accompanied by the completed,
reviewed and signed improvements security release certification forms,
which shall be subject to review and approval by the Township upon
review and recommendation by the Township Engineer.
(4)
If an improvements security release that is submitted
to the Township and subsequently forwarded to the Township Engineer
is, in the opinion of the Township Engineer, inconsistent with the
extent of the work completed, improvements security release certifications
forms will be annotated by the Township Engineer to reflect the extent
of improvements believed to have been constructed and the corresponding
security amount recommended for release by the Township.
(5)
The maintenance security, as required by the improvements
agreement, shall be equal to 15% of the total cost of improvements
offered for dedication to the Township. Prior to posting of the maintenance
security by the developer, the Township shall retain no less than
an amount equal to the maintenance security. Upon posting the maintenance
security, the developer may request the release of all remaining improvements
security, as applicable.
D.
Engineer's report.
(1)
Within 30 days of the receipt of such request, the
Township Engineer shall submit a written report certifying which improvements
have been completed in accordance with the approved plan to the Township
Supervisors.
(2)
This report shall be based on the inspections made
according to the approved inspection schedule included in the development
agreement and shall recommend approval or rejection of the improvements,
either in whole or in part.
E.
Security; decision by Township Supervisors.
(1)
At its first regularly scheduled meeting after receiving
the Engineer's report (but not later than 45 days after receipt of
the request), the Township Supervisors shall review the Township Engineer's
report and shall render a decision on the release request, upon consideration
of the recommendation of the Township Engineer, based upon the fair
value of the improvements completed.
(2)
The Township Supervisors shall be deemed to have approved
the release of funds as requested if the Township Supervisors fail
to act within 45 days of receipt of the developer's request.
(3)
The Township Supervisors shall notify the developer,
in writing, by certified or registered mail, of the decision.
F.
Completion of unapproved improvements. The developer
shall proceed to complete any improvements not approved by the Township
Supervisors and, upon completion, request approval in conformance
with the procedures specified in this section.
G.
Updating the improvements security.
(1)
On projects for which the improvements have not been
completed by the expiration of the improvements agreement, concurrent
with any requests to extend the improvements agreement, the developer's
engineer shall recommend suitable adjustments to the improvements
security estimate to reflect increases in construction costs, where
appropriate, and submit the revised security amount to the Township
for review. The Township Engineer shall review the proposed adjustments
and make recommendations to the Township on the adequacy of said adjustments.
If for any reason the revised amount (or remaining improvements security)
is determined to be inadequate to secure the incomplete portion of
the project, an update to the improvements security estimate and additional
security may be required.
(2)
If a developer's improvements security is considered
to be inadequate, the Township Engineer shall annotate the improvements
security release certification forms with the recommended adjustments
based on the then-current construction prices, thereby maintaining
the improvements security estimate current for the remaining unconstructed
improvements.
(3)
The Township Engineer shall forward the annotated
improvements security release certification forms, which reflect the
recommended adjustments, to the Township for its consideration. Additionally,
a copy will be sent to the developer for its consideration.
(4)
The Township shall reserve the right to not enter
into any extension of the land development improvements agreement
or subdivision improvements agreement unless the improvements security
is reevaluated in accord with the improvements security procedures
adopted by the Township.
H.
Final release.
(1)
When the developer has completed all of the necessary
and appropriate improvements, the developer shall request final release
in conformance with this section. See time limitations and procedures
in § 510 of the Municipalities Planning Code.
I.
Appeal. Nothing herein, however, shall be construed
to limit the developer's right to contest or question, by legal proceedings
or otherwise, any determination of the Township Supervisors or the
Township Engineer.
J.
Certificates of occupancy and completion of improvements.
(1)
A temporary or final certificate of occupancy shall
not be issued and a structure shall not be occupied unless:
(a)
The structure is safe and substantially completed
in conformity to all applicable ordinances, laws and plans;
(b)
The structure is served by electricity and telephone
service and any required water, fire hydrants and sewage service;
and
(c)
The structure has access to a clearly permanently
passable street with at least a complete paving binder course and
any required curbing installed.
(2)
No final certificate of occupancy shall be issued
until the structure is completed as approved with service by all required
utilities and with approved access onto a street. Any new or improved
street shall be completed to required standards, if applicable.
A.
Enforcement of security.
(1)
In the event that any improvements which may be required
have not been installed as provided in this ordinance or in accord
with the approved final plan or in the event of the bankruptcy of
the owner or developer, the Board of Supervisors is hereby granted
the power to elect to enforce any security posted under this ordinance
by appropriate legal and equitable remedies. This may include taking
all actions necessary to obtain moneys under said bond, including
but not limited to seizure of undeveloped lots, confession of judgment,
suit on the bond, seizure of escrow funds, revocation of building
permits and prosecution under this ordinance.
(2)
Rate of construction. Failure of a developer to construct
streets and other public improvements reasonably at the same time
or prior to the construction of the buildings served by those streets
or public improvements, and at the same rate in time at which buildings
are completed, shall be a violation of this ordinance and a cause
for default.
B.
Completion by Township. If the proceeds of such bond
or other security are insufficient to pay the cost of installing or
making repairs or corrections to all the improvements covered by said
security, the Board of Supervisors may, at its option, install part
of such improvements in all or part of the subdivision or land development
and may institute appropriate legal or equitable action to recover
the moneys necessary to complete the remainder of the improvements.
C.
Proceeds for installation of improvements. The proceeds
from use of the security and/or from any legal or equitable action
brought against the developer shall be used solely for the installation
of the improvements covered by such security.
A.
Maintenance agreement required.
(1)
All applicants proposing any subdivision or land development
which provides for the dedication of improvements required by this
ordinance shall be required to enter into a legally binding maintenance
agreement with the Township prior to acceptance of dedication of the
improvements by the Township.
(2)
The dedication of any significant improvement, as
determined by the Township Supervisors, shall not be accepted by the
Township prior to the execution of a maintenance agreement and the
delivery of the maintenance guaranty.
B.
Terms of maintenance agreement. The maintenance agreement
shall be acceptable in legal form to the Township Solicitor and in
content to the Township Supervisors and shall include all of the following:
(1)
That the applicant shall make any repair or reconstruction
of any improvement stipulated in the maintenance agreement which is
specified by the Township Supervisors if needed because of faulty
construction, workmanship or materials, prior to acceptance of such
improvement by the Township.
(2)
That the applicant shall maintain at his/her own cost
all improvements stipulated in the maintenance agreement, up to a
maximum period of 18 months from the date of acceptance or dedication
by the Township, except for any special purpose escrow or maintenance
agreements required by the Township.
(3)
That the applicant shall post financial security to
secure structural integrity of said improvements as well as the functioning
of said improvements in accordance with the design and specifications
as depicted on the final plan, for a maximum term of 18 months from
the date of acceptance of dedication.
(4)
That the developer shall plow snow and maintain all
streets until such time as the Township may accept such streets.
C.
Public utilities and authorities. If water mains or
sanitary sewer lines, or both, and related apparatus or facilities
are to be installed under the jurisdiction and under the rules and
regulations of a public utility or municipal authority, financial
security to assure proper completion and maintenance thereof shall
be posted in accordance with the regulations of the controlling public
utility or municipal authority. This amount of financial security
shall not also be required by the Township if it is required by such
utility or authority.
A.
Security. The maintenance guaranty shall be secured
by the credit of any of the following:
(1)
An irrevocable and unconditional letter of credit
of a federal- or state-chartered lending institution.
(2)
A restrictive or escrow account in a federal- or state-chartered
lending institution.
(3)
Such other financial security approved by the Township
Supervisors (which approval shall not be unreasonably withheld).
B.
Terms. Such maintenance guaranty shall be in the form
approved by the Township Solicitor and Township Supervisors, payable
to the Township, to guarantee the maintenance and repair of the streets
and other public improvements in the subdivision or land development
for 18 months from the date of acceptance thereof by the Township.
C.
Amount. The amount of the maintenance guaranty shall
be determined by the applicant's engineer, conditioned upon acceptance
by Township Supervisors, but shall not exceed 15% of the actual cost
of installation of such improvements.
D.
Release. After a maximum of 18 months from the date
of acceptance of said improvements, the Township shall release the
maintenance guaranty to the developer (or party that posted the guaranty)
if all improvements are in satisfactory condition, as determined by
the Township.
