Township of Derry, PA Maintenance Responsibilities

The applicant shall provide a financial security to the Township for the timely installation and proper construction of all stormwater management controls as required by the approved SWM site plan and this chapter. The SWM site plan shall not be signed nor recorded until a financial improvements agreement is executed and financial security is provided. 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.

Without limitation as to other types of financial security which the municipality 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.

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.

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.

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, and shall include 15% additional costs representing the estimated costs of the improvements to cover engineering and project management costs which would be necessary to have the improvements completed by the Township. 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 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% plus 15% to cover engineering and project management costs. Any additional security shall be posted by the developer in accordance with this subsection.

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 the Commonwealth of Pennsylvania, 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 a third professional engineer licensed as such in the Commonwealth of Pennsylvania, 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.

If the party posting the financial security requires more than one year from this 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 re-established on or about the expiration of the preceding one-year period by using the above bidding procedure.

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, of such portions of the financial security necessary for payment to the contractor or contractors performing the work.

Any such request shall be in writing addressed to the Board of Supervisors (with a copy to the Director of the Department of Community Development), 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 release or 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.

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.

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 of Derry 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 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.

At the completion of the project and as a prerequisite for the release of the financial security, the applicant shall:

(1)

Provide a certification of completion from an engineer, architect, surveyor, or other qualified professional, verifying that all permanent facilities have been constructed according to the SWM site plan and report and approved revisions thereto.

(2)

Provide a set of as-built survey plans, where applicable.

(3)

Request a final inspection by the Township to verify compliance with this chapter, after receipt of the certification of completion and as-built survey plans by the Township.

The SWM site plan and report for the project site shall describe the future operation and maintenance responsibilities. The operation and maintenance description shall outline required routine maintenance actions and schedules necessary to ensure proper operation of the stormwater control facilities.

The SWM site plan and report for the project site shall establish responsibilities for the continuing operation and maintenance of all proposed stormwater control facilities, consistent with the following principles:

(1)

If a development consists of structures or lots that are to be separately owned and in which streets, storm sewers, and other public improvements are to be dedicated to the Township, that portion of the stormwater control facilities/BMPs associated with the public improvements may also be dedicated to and maintained by the Township.

(2)

If a development site is to be maintained in a single ownership or if storm sewers and other public improvements are to be privately owned and maintained, then the ownership and maintenance of stormwater control facilities/BMPs shall be the responsibility of the owner or private management entity.

(3)

Facilities, areas, or structures used as stormwater BMPs shall be enumerated as permanent real estate appurtenances and recorded as deed restrictions or easements that run with the land.

(4)

The SWM site plan and O&M agreement shall be recorded as a restrictive deed covenant that runs with the land.

The Township, upon recommendation of the Township Engineer, shall make the final determination on the continuing maintenance responsibilities prior to final approval of the SWM site plan and report. The Township may require a dedication of such facilities as part of the requirements for approval of the SWM site plan. Such a requirement is not an indication that the Township will accept the facilities. The Township reserves the right to accept or reject the ownership and operating responsibility for any portion of the stormwater BMPs.

If the Township accepts ownership of stormwater BMPs, the Township may, at its discretion, require a fee from the applicant to offset the future cost of inspections, operations, and maintenance.

It shall be unlawful to alter or remove any permanent stormwater BMP required by an approved SWM site plan, or to allow the property to remain in a condition, which does not conform to an approved SWM site plan unless the Township grants an exception in writing.

[1]

Editor's Note: Appendix A is on file in the Township offices.