A.
No plan shall be finally approved unless the streets shown on such
plan have been improved to a mud-free or otherwise permanently passable
condition, or improved as may be required by the subdivision and land
development ordinance[1] and any walkways, curbs, gutters, street lights, fire
hydrants, shade trees, water mains, sanitary sewers, storm sewers
and other improvements as may be required by the subdivision and land
development ordinance have been installed in accordance with such
ordinance. In lieu of the completion of any improvements required
as a condition for the final approval of a plan, including improvements
or fees required pursuant to the PA MPC Section 509(i), the applicant
shall deposit with the Township financial security in an amount sufficient
to cover the costs of such improvements or common amenities including,
but not limited to, roads, stormwater detention and/or retention basins
and other related drainage facilities, recreational facilities, open
space improvements, or buffer or screen plantings which may be required.
B.
The applicant shall not be required to provide financial security
for the costs of any improvements for which financial security is
required by and provided to the Department of Transportation in connection
with the issuance of a highway occupancy permit pursuant to Section
420 of the act of June 1, 1945 (P.L. 1242, No. 428) known as the "State
Highway Law."[2]
[2]
Editor's Note: See 36 P.S. § 670-101 et seq.
C.
If water mains or sanitary sewer lines, or both, along with apparatus
or facilities related thereto, are to be installed under the jurisdiction
and pursuant to the rules and regulations of a public utility or Municipal
authority separate and distinct from the Township, 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 and shall not be included within the financial
security as otherwise required by this section.
A.
Record plan approval. When requested by the developer, in order to
facilitate financing, the Board of Supervisors shall furnish the developer
with a signed copy of a resolution indicating approval of the final
plan contingent upon the developer obtaining a satisfactory financial
security. The final plan or record plan shall not be signed nor recorded
until the financial improvements agreement is executed. The resolution
or letter of contingent approval shall expire and be deemed to be
revoked if the financial security agreement is not executed within
90 days unless a written extension is granted by the Board of Supervisors;
such extension shall not be unreasonably withheld and shall be placed
in writing at the request of the developer.
B.
Review fees. Review fees may include reasonable and necessary charges
by the Township's professional consultants for review and report
thereon to the Township. Such review fees shall be based upon a schedule
established by ordinance or resolution. Such review fees shall be
reasonable and in accordance with the ordinary and customary charges
for similar service in the community, but in no event shall the fees
exceed the rate or cost charged by the professional consultant for
comparable services to the Township for services which are not reimbursed
or otherwise imposed on applicants. Fees charged to the Township relating
to any appeal of a decision on an application shall not be considered
review fees and may not be charged to an applicant.
C.
Protection of final phases. In the case where development is projected
over a period of years, the Board of Supervisors may authorize submission
of final plans by section or stages of development subject to such
requirements or guarantees as to improvements in future sections or
stages of development as it finds essential for the protection of
any finally approved section of the development.
A.
Form of financial security.
(1)
Without limitation as to other types of financial security which
the Township may approve, which approval shall not be unreasonably
withheld, federal or commonwealth chartered lending institution irrevocable
letters of credit and restrictive or escrow accounts in such lending
institutions shall be deemed acceptable financial security for the
purposes of this section.
(2)
Such financial security shall be posted with a bonding company
or federal or commonwealth chartered lending institution chosen by
the party posting the financial security, provided said bonding company
or lending institution is authorized to conduct such business within
the commonwealth.
(3)
Such bond or other security shall provide for, and secure to
the public, the completion of any improvements which may be required
on or before the date fixed in the formal action of approval or accompanying
agreement for completion of the improvements.
B.
Amount of guarantee.
(1)
Amount of financial security required. 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.
Annually, the Township may adjust the amount of the financial security
by comparing the actual cost of the improvements which have been completed
and the estimated cost for the completion of the remaining improvements
as of the expiration of the 90th day after either the original date
scheduled for completion or a rescheduled date of completion. Subsequent
to said adjustment, the Township may require the developer to post
additional security in order to assure that the financial security
equals said 110%. Any additional security shall be posted by the developer
in accordance with this subsection.
(2)
Estimate of the cost of completion. The amount of financial
security required shall be based upon an estimate of the cost of completion
of the required improvements, submitted by an applicant or developer
and prepared by a professional engineer licensed as such in this commonwealth
and certified by such engineer to be a fair and reasonable estimate
of such cost. The Township, upon the recommendation of the Township
Engineer, may refuse to accept such estimate for good cause shown.
If the applicant or developer and the Township are unable to agree
upon an estimate, then the estimate shall be recalculated and recertified
by another professional engineer licensed as such in this commonwealth
and chosen mutually by the Township and the applicant or developer.
The estimate certified by the third engineer shall be presumed fair
and reasonable and shall be the final estimate. In the event that
a third engineer is so chosen, fees for the services of said engineer
shall be paid equally by the Township and the applicant or developer.
(3)
Additional time for completion. If the party posting the financial
security requires more than one year from the date of posting of the
financial security to complete the required improvements, the amount
of financial security may be increased by an additional 10% for each
one-year period beyond the first anniversary date from posting of
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
bidding procedure.
The developer shall contact the inspecting engineer to coordinate
the construction observation schedule, notification procedures, and
other related improvement guarantee administration topics and to determine
the need for an on-site, pre-construction meeting. The developer shall
contact the inspecting engineer prior to the construction of site
improvements.
A.
Inspection of improvements.
(1)
When the developer has completed all of the necessary and appropriate
improvements, the developer shall notify the Township Board of Supervisors,
in writing, by certified or registered mail, of the completion of
the aforesaid improvements and shall send a copy thereof to the Township
Engineer. The Township Board of Supervisors shall, within 10 days
after receipt of such notice, direct and authorize the Township Engineer
to inspect all of the aforesaid improvements. The Township Engineer
shall, thereupon, file a report, in writing, with the Township Board
of Supervisors, and shall promptly mail a copy of the same to the
developer by certified or registered mail. The report shall be made
and mailed within 30 days after receipt by the Township Engineer of
the aforesaid authorization from the Board of Supervisors; said report
shall be detailed and shall indicate approval or rejection of said
improvements, either in whole or in part, and if said improvements,
or any portion thereof, shall not be approved or shall be rejected
by the Township Engineer, said report shall contain a statement of
reasons for such non-approval or rejection.
(2)
The Board of Supervisors shall submit to the developer an itemized
bill showing the work performed in connection with the inspection
of improvements performed, identifying the person performing the services
and the time and date spent for each task.
B.
Acceptance of Improvements.
(1)
The Township Board of Supervisors shall notify the developer,
within 15 days of receipt of the Township Engineer's report,
in writing by certified or registered mail of the action of said Township
Board of Supervisors with relation thereto.
(2)
If the Township Board of Supervisors or the Township Engineer
fails to comply with the time limitation provisions contained herein,
all improvements will be deemed to have been approved and the developer
shall be released from all liability, pursuant to its performance
guaranty bond or other security agreement.
C.
Township Does Not Accept Improvements. If any portion of the said
improvements shall not be approved or shall be rejected by the Township
Board of Supervisors, the developer shall proceed to complete the
same and, upon completion, the same procedure of notification, as
outlined herein, shall be followed.
D.
Duplication of Inspections. The Township may prescribe that the developer
shall reimburse the Township for the reasonable and necessary expense
incurred in connection with the inspection of improvements. The developer
shall not be required to reimburse the Board of Supervisors for any
inspection which is duplicative of inspections conducted by other
governmental agencies or public utilities. The burden of proving that
any inspection is duplicative shall be upon the objecting developer.
Such reimbursement shall be based upon a schedule established by ordinance
or resolution. Such expense shall be reasonable and in accordance
with the ordinary and customary fees charged by the Township's
professional consultant for work performed for similar services in
the community, but in no event shall the fees exceed the rate or cost
charged by the professional consultant to the Township for comparable
services when fees are not reimbursed or otherwise imposed on applicants.
E.
Inspection expenses disputed.
(1)
Disputed engineer expenses. In the event the developer disputes
the amount of any such expense in connection with the inspection of
improvements, the developer shall, no later than 100 days after the
date of transmittal of a bill for inspection services, notify the
Township and the Township's professional consultant that such
inspection expenses are disputed as unreasonable or unnecessary and
shall explain the basis of their objections to the fees charged, in
which case the Township shall not delay or disapprove a request for
release of financial security, a subdivision or land development application
or any approval or permit related to development due to the developer's
dispute of inspection expenses. Failure of the developer to dispute
a bill within 100 days shall be a waiver of the developer's right
to arbitration of that bill under this section.
(2)
Appointment of third-party professional engineer by mutual agreement.
If the professional consultant and the developer cannot agree on the
amount of expenses which are reasonable and necessary, then the developer
shall have the right, within 100 days of the transmittal of the final
bill or supplement to the final bill to the developer, to request
the appointment of another professional consultant to serve as an
arbitrator. The developer and professional consultant whose fees are
being challenged shall, by mutual agreement, appoint another professional
consultant to review any bills the developer has disputed and which
remain unresolved and make a determination as to the amount thereof
which is reasonable and necessary. The arbitrator shall be of the
same profession as the professional consultant whose fees are being
challenged.
(3)
Determination of third-party professional engineer. The arbitrator
so appointed shall hear such evidence and review such documentation
as the arbitrator in his or her sole opinion deems necessary and shall
render a decision no later than 50 days after the date of appointment.
Based on the decision of the arbitrator, the developer or the professional
consultant whose fees were challenged shall be required to pay any
amounts necessary to implement the decision within 60 days. In the
event the Township has paid the professional consultant an amount
in excess of the amount determined to be reasonable and necessary,
the professional consultant shall within 60 days reimburse the excess
payment.
(4)
Appointment of third-party professional engineer by Court. In
the event that the Township's professional consultant and developer
cannot agree upon the arbitrator to be appointed within 20 days of
the request for appointment of an arbitrator, then, upon application
of either party, the President Judge of the Court of Common Pleas
of the judicial district in which the Township is located (or if at
the time there be no President Judge, then the senior active judge
then sitting) shall appoint such arbitrator, who, in that case, shall
be neither the Township's professional consultant nor any professional
consultant who has been retained by, or performed services for, the
Township or the developer within the preceding five years.
(5)
Payment of fee for third-party professional engineer. The fee
of the arbitrator shall be paid by the developer if the disputed fee
is upheld by the arbitrator. The fee of the arbitrator shall be paid
by the charging party if the disputed fee is $2,500 or greater than
the payment decided by the arbitrator. The fee of the arbitrator shall
be paid an equal amount by the developer and the charging party if
the disputed fee is less than $2,500 of the payment decided by the
arbitrator.
(6)
Unreasonable or excessive fees. In the event that the disputed
fees have been paid and the arbitrator finds that the disputed fees
are unreasonable or excessive by more than $10,000, the arbitrator
shall:
(7)
Time limit to dispute fees. The Township or an applicant shall
have 100 days after paying a fee to dispute any fee charged as being
unreasonable or excessive.
A.
Partial release of funds. As the work of installing the required
improvements proceeds, the party posting the financial security may
request the Board of Supervisors to release or authorize the release,
from time to time, such portions of the financial security necessary
for payment to the contractor or contractors performing the work.
Any such requests shall be in writing addressed to the Board of Supervisors,
and the Board of Supervisors shall have 45 days from receipt of such
request within which to allow the Township Engineer to certify, in
writing, to the Board of Supervisors that such portion of the work
upon the improvements has been completed in accordance with the approved
plan. Upon such certification the Board of Supervisors shall authorize
release by the bonding company or lending institution of an amount
as estimated by the Township Engineer fairly representing the value
of the improvements completed or, if the Board of Supervisors fails
to act within said forty-five-day period, the Board of Supervisors
shall be deemed to have approved the release of funds as requested.
The Board of Supervisors may, prior to final release at the time of
completion and certification by its engineer, require retention of
10% of the estimated cost of the aforesaid improvements.
B.
Final release. Subsequent to the final release of financial security
for completion of improvements for a subdivision or land development,
or any phase thereof, the professional consultant shall submit to
the Board of Supervisors a bill for inspection services, specifically
designated as a final bill. The final bill shall include inspection
fees incurred through the release of financial security.
C.
Remedies to effect completion of improvements. In the event that
any improvements which may be required have not been installed as
provided in the subdivision and land development ordinance[1] or in accord with the approved final plan the Board of
Supervisors of the Township is hereby granted the power to enforce
any corporate bond, or other security by appropriate legal and equitable
remedies. If 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
of the Township 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. All of the proceeds,
whether resulting from the security or from any legal or equitable
action brought against the developer, or both, shall be used solely
for the installation of the improvements covered by such security,
and not for any other Township purpose.
If financial security has been provided in lieu of the completion
of improvements required as a condition for the final approval of
a plan as set forth in this section, the Township shall not condition
the issuance of building, grading or other permits relating to the
erection or placement of improvements, including buildings, upon the
lots or land as depicted upon the final plan upon actual completion
of the improvements depicted upon the approved final plan. Moreover,
if said financial security has been provided, occupancy permits for
any building or buildings to be erected shall not be withheld following
the improvement of the streets providing access to and from existing
public roads to such building or buildings to a mud-free or otherwise
permanently passable condition, as well as the completion of all other
improvements as depicted upon the approved plan, either upon the lot
or lots or beyond the lot or lots in question if such improvements
are necessary for the reasonable use of or occupancy of the building
or buildings. Any ordinance or statute inconsistent herewith is hereby
expressly repealed.
Where the Board of Supervisors accepts dedication of all or
some of the required improvements following completion, the Board
of Supervisors may require the posting of 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 term not to exceed 18 months from
the date of acceptance of dedication. Said financial security shall
be of the same type as otherwise required in this section with regard
to installation of such improvements, and the amount of the financial
security shall not exceed 15% of the actual cost of installation of
said improvements.
A.
As-built plan required. Prior to the release of the final escrow estimate, the developer shall provide the Township with one Mylar and print of the as-built plan showing the following information. The developer shall also submit this information in an electronic format acceptable to the Township; by way of example, see §§ 265-4.4M(5) and 265-4.5L(6).
B.
Plan information.
(1)
Actual location of concrete monuments.
(2)
Actual location of all iron pins or drill holes in curbs for
all individual lot lines.
(3)
Actual cul-de-sac radius.
(4)
Actual location of cartway centerline versus right-of-way centerline.
(5)
Actual location of street right-of-way.
(6)
Typical street cross section of each street right of way.
(7)
Actual location of all public and private utilities.
(8)
Actual location of all traffic control devices, such as signs,
traffic signals, speed tables, mountable curbs, etc.
(9)
Actual location of floodplain by elevation and dimension from
lot lines.
(10)
Actual location and cross section of swales and accompanying
easements.
(11)
Actual horizontal and vertical location of stormwater management
facilities including type and size of storm drainage pipes.
