Improvement guarantees may be provided by the developer or subdivider
to ensure the proper installation and maintenance of required street,
utility and other public improvements. The nature and duration of
the guarantee shall be structured to achieve this goal without adding
unnecessary costs to the developer. These guarantees are to comply
with Section 509 of the MPC.[1]
[1]
Editor's Note: See 53 P.S. § 10509.
A.
Before the recording of final subdivision plans, the
Board of Township Supervisors may require and shall accept in accordance
with the standards adopted by ordinance the following guarantees:
(1)
The furnishing of a performance guarantee in an amount
not to exceed 110% of the cost of installation for improvements;
(2)
Provision for a maintenance guarantee in the form
of financial security for a period not to exceed 18 months after final
acceptance of the improvement, in an amount not to exceed 15% of the
cost of the improvement. In the event that other governmental agencies
or public utilities automatically will own the utilities to be installed,
or the improvements are covered by a performance or maintenance guarantee
to another governmental agency, and such guarantees are satisfactory
to such agencies, no performance or maintenance guarantee, as the
case may be, shall be required by the Supervisors for such utilities
or improvements.
B.
The time allowed for installation of the improvements
for which the performance guarantee has been provided may be extended
one time for not more than one year by the Board of Township Supervisors
by resolution.
A.
When the developer has completed all of the necessary
and appropriate improvements, the developer shall notify the Board
of Township 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 Board of Township 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 Board of Township 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 Township;
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 nonapproval or rejection.
B.
The Board of Township Supervisors shall notify the
developer, within 15 days of receipt of the Engineer's report, in
writing, by certified or registered mail, of the action of said municipality
with relation thereto.
C.
If the Board of Township 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 a liability, pursuant to its
performance guaranty bond or other security agreement.
D.
If any portion of the said improvements shall not
be approved or shall be rejected by the municipality, the developer
shall proceed to complete the same and, upon completion, the same
procedure of notification, as outlined herein, shall be followed.
Upon acceptance of the public improvements, one set of as-built construction
drawings shall be delivered to the Township Secretary.
E.
Nothing herein, however, shall be construed in limitation
of the developer's right to contest or question, by legal proceedings
or otherwise, any determination of the municipality or the Township
Engineer.
F.
The applicant shall reimburse the Township for the
reasonable and necessary expense incurred for the inspection of improvements.
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 Engineer
or 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 Engineer or consultant to the Township when fees are not reimbursed
or otherwise imposed on applicants.
(1)
In the event 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 Township that such expenses are disputed as unreasonable
or unnecessary, in which case the Township 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 Township
and the applicant cannot agree on the amount of expenses which are
reasonable and necessary, then the applicant and municipality shall
jointly, by mutual agreement, appoint another professional engineer
licensed as such in the Commonwealth of Pennsylvania to review the
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 Township and applicant cannot
agree upon the professional engineer to be appointed within 20 days
of the billing date, then, upon application of either party, the President
Judge of the Court of Common Pleas of the judicial district in which
the municipality is located (or if at the time there be no President
Judge, then the senior active judge then sitting) 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.
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 plat, the Township may 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 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 municipal purpose.
Performance and maintenance guarantees shall be provided in
a number of forms, including but not limited to the following:
A.
Security bond, performance bond and labor and materials
bond. The applicant may obtain a bond from a surety bonding company
authorized to do business in the state.
B.
Letter of credit. The applicant may provide an irrevocable
letter of credit from a bank or other reputable institution.
C.
Escrow account. The applicant shall deposit cash or
other instruments readily convertible into cash at face value either
with the Township or in escrow with a bank.
D.
Subdivision improvement guarantee. An applicant may
provide as a guarantee a subdivision improvement agreement between
the applicant, lender, and Girard Township.
E.
Cash deposit (CD). The applicant may establish a CD
account opened in the name of Girard Township.
