Township of Washington, PA Article VII Financial Security for Public Improvements

§ 107-49 Completion of improvements or guaranty prerequisite to final plan approval.

A. No plan shall be finally approved unless the streets shown on such plan have been improved as required by the provisions of this chapter and any walkways, curbs, gutters, streetlights, fire hydrants, shade trees and other landscaping, water mains, sanitary sewers, storm sewers and other improvements as may be required by this chapter have been installed in accordance with the provisions hereof. In lieu of the completion of any improvements required as a condition for the final approval of a subdivision or land development plan, including improvements of subdivisions or land developments submitted in sections or phases, the applicant shall deposit with the Township financial security in an amount sufficient to cover the cost 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 that may be required.

B. When requested by the applicant, in order to facilitate financing, the Board shall furnish the applicant with a signed copy of the resolution indicating approval of the final plan, contingent upon the applicant's providing satisfactory financial security. The final plan shall neither be signed nor recorded until the improvements agreement is executed. The resolution or letter of contingent approval shall expire and be deemed to be revoked if the improvements agreement is not executed within 90 days, unless a written extension is granted by the Board.

C. Irrevocable letters of credit issued by federal- or commonwealth-chartered lending institutions and restrictive or escrow accounts in such lending institutions shall be deemed acceptable financial security.

D. Such financial security shall be posted with a bonding company or federal- or commonwealth-chartered lending institution chosen by the developer, provided that said bonding company or lending institution is authorized to conduct such business within the Commonwealth of Pennsylvania.

E. Such bond or other security shall provide for and secure to the public the completion of any improvements which may be required in the final plan and the accompanying agreement for completion of the improvements.

F. 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 applicant. Annually, the Board 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 Board may require the applicant to post additional security in order to assure that the financial security equals said 110%. Any additional security shall be posted by the applicant in accordance with this section.

G. 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 and prepared by a professional engineer licensed as such in the Commonwealth of Pennsylvania and certified by such engineer to be a fair and reasonable estimate of such cost. The Board, upon the recommendation of the Township Engineer, may refuse to accept such estimate for good cause shown. If the applicant and the Board are unable to agree upon an estimate, then the estimate shall be recalculated and recertified by another professional engineer licensed as such in the Commonwealth of Pennsylvania and chosen mutually by the Board and the applicant. 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.

H. All public improvements for which financial security is posted shall be completed by the applicant within one year of the date of execution of the improvements agreement. In the event that the applicant fails to complete the public improvements within the one-year period, the Board may extend the time for completion, but may require the applicant to post additional security of 10% above the amount determined by the Township Engineer to be required to complete the remaining public improvements.

I. In the case where development is projected over a period of years, the Board may authorize submission of final plans by sections or stages of development subject to such requirements or guaranties as to improvements in future sections or stages of development as it deems essential for the protection of any finally approved section of the development.

J. As the work of installing the required improvements proceeds, the applicant may request the Board to release or authorize the release, from time to time, of 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, which shall have 45 days from receipt of such request within which to allow the Township Engineer to certify, in writing, to the Board that such portion of the work upon the improvements has been completed in accordance with the approved plan. Upon such certification, the Board shall authorize release by the bonding company or lending institution of an amount as estimated by the Township Engineer, or, if the Board fails to act within said forty-five-day period, the Board shall be deemed to have approved the release of funds as requested. The Board shall retain 10% of the estimated cost of the aforesaid improvements until such time that the improvements are fully completed, as certified by the Township Engineer.

K. If water mains or sanitary sewer lines, or both, along with apparatus or facilities related thereto, are to be installed under the jurisdiction of and pursuant to the rules and regulations of a public utility or municipal authority separate and distinct from the municipality, 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.

L. 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 Board 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 condition acceptable to the Township Engineer, 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.

M. Any fee paid by an applicant in lieu of open space must be paid in full at the time of final plan approval. Final subdivision plans will not be released for recordation until the fee is paid in full.

N. All stormwater management facilities, including, but not by way of limitation, swales, stormwater piping, inlets, etc., shall be substantially complete prior to issuance of a use and occupancy permit.

§ 107-50 Conditions of acceptance of public improvements.

A. Improvements.

(1) The Township shall have no obligation to take over and make public any street or other improvement unless:

(a) The required improvements, utility mains and laterals and monuments shown on an approved plan have been constructed to comply with all requirements of this chapter; and

(b) The Board determines that it is in the best interests of the Township to accept dedication of the improvements.

(2) The Board shall not, however, accept any street offered for dedication between October 15 and April 15.

B. The Township shall have no responsibility for the maintenance and repair of any street or other improvement, notwithstanding the use of the same by the public, unless the Board accepted, by ordinance or resolution, the dedication of the street or other improvement.

C. In the event that the Board accepts dedication of a public improvement, the Township Solicitor shall prepare the deed of dedication and any other required documents. The cost of preparation shall be paid by the applicant.

D. The applicant shall also supply to the Township as-built plans on paper and electronic formats of the improvements offered for dedication at the time of presentation of the deed of dedication and other related documents.

E. Where the Board accepts dedication of all or some of the required improvements following completion, the applicant shall post financial security to secure the structural integrity of the 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 of 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.

§ 107-51 Final release for public improvements.

A. When the applicant has completed all of the necessary and appropriate improvements, the applicant shall notify the Board, 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 Board 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 Board and shall promptly mail a copy of the same to the applicant 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. Said report shall be detailed and shall indicate approval or rejection of said improvements, either in whole or in part, and, if said improvements, either in whole or in part, shall not be approved or shall be rejected by the Township Engineer, said report shall contain a statement of reasons for such nonapproval or rejection.

B. Within 15 days of the receipt of the Township Engineer's report, the Board shall notify the applicant, in writing, by certified or registered mail, of its action in regard to the recommendation of the Township Engineer.

C. If the Board 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 applicant shall be released from all liability related thereto, with the exception that the applicant must post a maintenance bond or other financial security as required in § 107-50E hereof.

D. If any portion of said improvements shall not be approved or shall be rejected by the Board, the applicant shall proceed to complete the same and, upon completion, the same procedure of notification, as outlined herein, shall be followed.

E. Nothing herein, however, shall be construed to limit the applicant's right to contest or question by legal proceedings or otherwise any determination of the Board or the Township Engineer.

F. The applicant shall reimburse the Township for the reasonable and necessary expenses incurred by it for the inspection of the improvements. Such reimbursement shall be based upon a schedule established by resolution of the Board. Such expense shall be reasonable and in accordance with the ordinary and customary fees charged by the Township Engineer or consultant for work performed for similar services in the community, but in no event shall a fee exceed the rate or cost charged by the Engineer or consultant to the Township when fees are not reimbursed or otherwise imposed on applicants.

(1) In the event that the applicant disputes the amount of any such expense in connection with the inspection of improvements, the applicant shall, within 10 working days of the date of billing, notify the Board that such expenses are disputed as unreasonable or unnecessary, in which case the Board shall not delay or disapprove a subdivision or land development application or any approval or permit related to development due to the applicant's request over disputed engineer expenses.

(2) If, within 20 days from the date of billing, the Board and the applicant cannot agree on the amount of expenses which are reasonable and necessary, then the applicant and Board shall jointly, by mutual agreement, appoint another professional engineer licensed as such in the Commonwealth of Pennsylvania to review said expenses and make a determination as to the amount thereof which is reasonable and necessary.

(3) The professional engineer so appointed shall hear such evidence and review such documentation as the professional engineer in his or her sole opinion deems necessary and render a decision within 50 days of the billing date. The applicant shall be required to pay the entire amount determined in the decision immediately.

(4) In the event that the Board and applicant cannot agree upon the professional engineer to be appointed within 20 days of the billing date, then, upon application of either party, a Judge of the Court of Common Pleas of Berks County shall appoint such engineer, who, in that case, shall be neither the Township Engineer nor any professional engineer who has been retained by or performed services for the Township or the applicant within the preceding five years.

(5) The fee of the appointed professional engineer for determining the reasonable and necessary expenses shall be paid by the applicant if the amount of payment required in the decision is equal to or greater than the original bill. If the amount of payment required in the decision is less than the original bill by $1,000 or more, the Township shall pay the fee of the professional engineer, but otherwise the Township and the applicant shall each pay 1/2 of the fee of the appointed professional engineer.

§ 107-52 Remedies to effect completion of improvements.

In the event that any improvements which may be required have not been installed as provided in this chapter or in accordance with the approved final plan, the Board 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 improvements covered by said security, the Board may, at its option, install part of the 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 applicant or developer, or both, shall be used solely for the installation of the improvements covered by such security and not for any other municipal purpose.