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.
(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.
(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.
(2) Such final release shall include all moneys retained under Subsection
C above.
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.