A.
Before approving any subdivision or land development plan for recording,
the approval body shall require that the Township be assured by means
of a proper development agreement and performance guarantee that the
improvements required by this chapter and the improvements appearing
on the plan will be installed in strict accordance with the standards
and specifications of this chapter, unless:
(1)
A developer chooses to install all required improvements prior to
construction of any building; in place of using performance guarantees,
in which case, the Township shall, as deemed necessary, require the
developer to have adequate insurance, hold harmless agreements, an
escrow account to cover the costs of inspections and a professional
estimate of the costs of the improvements (to be used to establish
the amount of the inspections escrow).
B.
Purpose of security. The security required by this article shall
stand as security for compliance with all Township ordinances, other
laws, covenants, stipulations, conditions and rules applicable to
the subdivision or land development for which it is filed.
C.
No construction of buildings or paving or sales of any individual
lot or condominium unit within a subdivision or land development shall
take place in any subdivision unless:
A.
In all cases, the subdivider or land developer shall be responsible
for the installation of all improvements required by this chapter.
B.
The Township Engineer or other designee shall make such inspections
of the required improvements at such intervals as may be reasonably
necessary to assure compliance with this chapter. 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 chapter or any improvements or amenities which appear on the final plan 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 § 240-47 concerning the construction of all improvements prior to the construction of any buildings or the sale of any lots or home sites.
(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 approval
body prior to the execution of this agreement and the delivery of
the performance guarantee.
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 approval body. 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 chapter:
(1)
The construction depicted on the approved plans, listed in itemized
format, including all approved streets, drainage facilities, utility
lines and other improvements.
(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 guarantee for completion of required improvements in compliance with § 240-50, including a detailed breakdown of the estimated costs of the improvements, including the total amount of the performance guarantee.
(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, 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 agreement.
(9)
Provisions concerning any violations of the development agreement.
(10)
Any other lawful terms which the approval body may require to
carry out the provisions of this chapter.
(11)
Signatures. The development agreement shall be signed by all
responsible landowners and/or developers.
C.
Ownership of land and guarantee.
(1)
A certificate of ownership shall be executed in the exact name in
which title is held. If the developer(s) of the subdivision is someone
other than the landowner(s) of the subdivision, the developer shall
also execute its affidavit, along with a security agreement.
(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 approval
body. In giving or denying said approval, the approval body shall
require that such new landowner and/or developer fully assume all
applicable responsibilities under the development agreement and post
all the appropriate 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 guarantee for completion of required improvements
shall meet the following requirements:
A.
Security.
(1)
The guarantee 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; or
(c)
Such other financial security approved by the approval body
(which approval shall not be unreasonably withheld), but not including
a second or third mortgage on the unimproved lands.
(2)
Such approved 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 for the completion
of such improvements.
(3)
Such financial security shall be posted with a federally issued or
state-chartered lending institution chosen by the party posting the
financial security, or such other approved entity, provided such institution
or entity is authorized to conduct such business within the state.
B.
Amount.
(1)
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.
(2)
The cost of the improvements shall be established by an estimate
prepared by a Pennsylvania-registered professional engineer, which
shall be reviewed by the Township Engineer, within the arbitration
process permitted by the Pennsylvania Municipalities Planning Code.[2]
[2]
Editor’s Note: See 53 P.S. § 10101 et seq.
(3)
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 a maximum of an additional 10% or 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 procedure.
(4)
Inspection fees. The amount of financial security shall also include
an additional 5% of the estimated cost of completion of the work to
guarantee payment of inspection fees and related engineering costs.
C.
Multiyear or multistage development. In the case where development
is projected over a period of years, the approval body may authorize
submission of final plans by phases/stage of development subject to
such requirements or improvement guarantees concerning future improvements
as it finds necessary for the proper functioning of each phase and
for the eventual development as a whole.
A.
In general. As the work of installing the required improvements proceeds,
the party posting the financial security may request the approval
body to release, or authorize the release, from time to time, portions
of the financial security necessary for payment to the contractors
performing the work.
B.
Notice by developer of work on improvements. The developer or his/her
representative should provide a minimum of three days' notice
to the Township Engineer prior to beginning each major facet of construction,
in order to allow the scheduling of inspections.
C.
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 approval body
and mail a copy of such, by certified or registered mail, to the developer
or his/her representative at his/her last known address.
(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.
(3)
If the Township Engineer finds any or all of the improvements to
be not as required, he/she shall include a statement of the reasons
for recommending their rejection in the report.
D.
Decision by approval body.
(1)
At its first regularly scheduled meeting after receiving the Engineer's
report (but not later than 45 days of the receipt of the request),
the approval body shall review the Township Engineer's report
and shall authorize release of an amount as estimated by the Township
Engineer fairly representing the value of the improvements completed.
(2)
The approval body shall be deemed to have approved the release of
funds as requested if the approval body fails to act within 45 days
of receipt of the developer's request.
(3)
Until final release (completion of all improvements), the approval
body may require retention of a maximum of 10% of the cost of each
completed improvement.
(4)
The approval body shall notify the developer in writing by certified
or registered mail of the decision.
E.
Completion of unapproved improvements. The developer shall proceed to complete any improvements not approved by the approval body and, upon completion, request approval in conformance with the procedures specified in § 240-51.
F.
Final release.
(1)
When the developer has completed all of the necessary and appropriate improvements, the developer shall request final release in conformance with the procedures specified in § 240-51. See time limitations and procedures in Section 510 of the Municipalities Planning Code.[1]
[1]
Editor’s Note: See 53 P.S. § 10510.
(2)
Such final release shall include all moneys retained under § 240-51D(3).
G.
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 approval body or the Township
Engineer.
A.
Enforcement of security.
(1)
In the event that any improvements which may be required have not
been installed as provided in this chapter or in accord with the approved
final plan, or in the event of the bankruptcy of the owner or developer,
the approval body is hereby granted the power to elect to enforce
any security posted under this chapter by appropriate legal and equitable
remedies.
(a)
This may include taking all actions necessary to obtain moneys
under said security, including but not limited to seizure of undeveloped
lots, seizure of escrow funds, revocation of building permits and
prosecution under this chapter.
(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 chapter and a cause for default
of the security.
B.
Completion by Township. If the proceeds of such security are insufficient
to pay the cost of installing or making repairs or corrections to
all the improvements covered by said security, the approval body 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 guarantee required. All applicants proposing any subdivision
or land development which provides for the dedication of improvements
required by this chapter shall be required to provide a legally binding
maintenance guarantee to the Township prior to acceptance of dedication
of the improvements by the Township. In most cases, this guarantee
will be part of the security agreement.
B.
Terms of maintenance guarantee. The maintenance guarantee shall be
acceptable in legal form to the Township Solicitor and in content
to the approval body, and shall include all of the following:
(1)
That the applicant make any repair or reconstruction of any improvement
stipulated in the maintenance agreement which is specified by the
approval body if needed because of faulty construction, workmanship,
or materials, prior to acceptance of such improvement by the Township;
(2)
That the applicant 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 completion, except for any special purpose
escrow or maintenance agreements required by the Township;
(3)
That the applicant 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 completion;
and
(4)
That the developer plow snow and maintain all streets until such
time as the Township may accept such streets.
C.
Type of security. The maintenance guarantee shall be secured by the
same form of security as is permitted for the improvements guarantees.
D.
Terms. Such maintenance guarantee shall be in the form approved by
the Township Solicitor and approval body, 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 completion. The applicant shall prove to the satisfaction
of the approval body that there will be an acceptable system for the
long-term maintenance of any stormwater detention basins.
E.
Amount. The amount of the maintenance guarantee shall be determined
by the applicant's engineer, conditioned upon acceptance by the
approval body, but shall not exceed 15% of the actual cost of installation
of such improvements.
F.
Release. After a maximum of 18 months from the date of completion
of said improvements, the Township shall release the maintenance guarantee
to the developer (or party that posted the guarantee) if all improvements
are in satisfactory condition, as determined by the Township.
