No plan shall be granted final approval until the applicant
and/or developer either:
A.
Installs all required improvements in accordance with the terms of
approval and the applicable design standards of said improvements.
B.
Posts a form of financial security, acceptable to the Township, which
shall be of sufficient amount to fully cover the costs of all required
improvements in accordance with the terms of approval and the applicable
design standards of said improvements. The Board of Supervisors shall
retain the discretion in all matters and decisions related to the
acceptance and/or approval of the posting of any financial security.
A.
A financial guarantee which shall be deemed as acceptable financial
security for the purposes of this chapter shall include:
(1)
An unconditional and irrevocable letter of credit with authorization
for drawing upon by the Township in the event of default or failure
by the developer or applicant to complete the installation of required
improvements.
(2)
A restrictive escrow account.
(3)
Other types of financial security which the Township may approve,
which approval shall not be unreasonably withheld.
B.
Such financial security shall be with a lending institution which
is chartered by the federal government or the Commonwealth of Pennsylvania
or with a bonding company which is legally authorized to conduct such
business within the Commonwealth of Pennsylvania.
When an applicant proposes to provide a financial security,
said financial security shall be submitted to the Board of Supervisors
and their Solicitor for review not less than 21 calendar days prior
to the public meeting of the Board of Supervisors at which the acceptance
and/or approval of proposed financial security will be considered
by the Board of Supervisors.
The amount of financial security to be posted for the completion
of required improvements shall be equal to 110% of the cost of completion,
estimated as of 90 calendar days following the scheduled completion
date. The amount of the required financial security shall be based
upon a written estimated cost of completion of required improvements,
submitted by the developer or applicant, and prepared by a professional
engineer licensed as such by the commonwealth. Said engineer shall
certify in writing that his estimated cost for the completion of the
required improvements is a fair and reasonable estimate. The Board
of Supervisors, upon the recommendation of the Township Engineer,
may for good cause shown, refuse to accept the developer's estimated
cost. In cases where the Township and the developer or applicant are
unable to agree on an estimate, then the estimate shall be recalculated
and recertified by another licensed professional engineer, mutually
accepted by the Township and the developer or applicant. The estimate
certified by the third-party engineer, being presumed fair and reasonable,
shall be deemed the final estimate. In the event that the third-party
engineer is chosen, the cost of his services shall be paid equally
by the Township and the developer or applicant.
A.
The financial security shall provide for, and secure to the public
the completion of the required improvements within one year of the
date fixed on the final plan for the completion of such improvements.
B.
If the applicant in 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 an additional 10% for each one-year period beyond the
anniversary date from posting of the financial security or to an amount
not exceeding 110% of the cost of completing the required improvements
as reestablished on or before the expiration of the preceding one-year
period.
In the case where development is projected over a period of
years, the Board of Supervisors may authorize the submission of final
plans by sections or phases of development subject to such requirements
or guarantees as to improvements in future sections or phases of development
as it finds essential for the protection of any finally approved section
of the development.
The applicant and/or developer shall provide the Township and
the Township Engineer with not less than a seventy-two-hour notice
prior to the commencement of work at the site.
The Township Engineer shall make periodic inspections to the
site during the construction of improvements to insure the work is
in conformance with the approved plans. The Township Engineer shall
promptly provide Board of Supervisors with a written report after
any such inspection.
A.
As the work of installing the required improvements proceeds, the
party posting 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.
B.
Any such request shall be in writing addressed to the Board of Supervisors.
The Board of Supervisors shall have 45 calendar 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 have been completed in accordance with the approved
plan.
C.
Upon such certification, the Board of Supervisors shall authorize
release by the bonding company or lending institution of an amount
as estimated by the Township Engineer as fair in representing the
value of the completed improvements. Failure of the Board of Supervisors
to act within the said forty-five-day period shall be deemed an approval
of the release of the funds requested.
D.
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.
A.
If Bear Creek Township accepts dedication of all or some of the required
improvements following completion, it shall require the posting of
financial security to secure the structural integrity of said improvements
as well as the functioning of said improvements in accordance with
the design and specifications as shown on the final plan for a term
not to exceed 18 months from the date of acceptance of dedication.
If water mains or sanitary sewer lines or both, along with apparatus
or facilities related thereto, are to be installed under the jurisdiction
and pursuant to the rules and regulations of a public utility or municipal
authority separate distinct from the Township, 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. A copy of any such
executed financial security shall be provided to the Board of Supervisors
not less than 21 calendar days prior to its next regularly scheduled
meeting at which the final plan shall be considered.
A.
If financial security has been provided in lieu of the completion
of improvements required as a condition for final approval as set
forth in this article, the Township shall not condition the issuance
of zoning, building, grading or other permits relating to the erection
or placement of improvements, including buildings, upon the lots or
land as shown on the final plan upon actual completion of the improvements
shown on the approved final plan.
B.
If a financial security has been provided certificates of zoning
compliance or occupancy permits for any building or buildings to be
erected shall not be withheld following:
(1)
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; and
(2)
The completion of all other improvements as shown on the approved
final plan, either upon the lot or lots beyond the lot or lots in
question, if such improvements are deemed necessary for the reasonable
use of or occupancy of the building or buildings.
A.
When the applicant has completed all of the necessary and required
improvements, the applicant shall notify the Board of 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.
B.
The Board of Supervisors shall, within 10 calendar days after receipt
of such notice, direct and authorize the Township Engineer to inspect
all the aforesaid improvements. The Township Engineer shall thereupon
file a report, in writing with the Board of Supervisors, and shall
promptly mail a copy of the same to the developer. The report by the
Township Engineer shall be made and mailed within 30 calendar days
from the aforesaid authorization from the Board of Supervisors.
C.
The report shall be detailed and shall indicate approval or rejection
of said improvements, either in whole or in part. If said improvements,
or any portion thereof be rejected, said report shall contain a statement
of the reasons for such rejection.
D.
The Board of Supervisors shall notify the developer, in writing,
within 15 calendar days of receipt of the Township's Engineer's report,
by certified or registered mail of the action of the Board of Supervisors
with relation thereto.
E.
If the Board of 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 applicant shall be released
from all liability, pursuant to its performance guarantee bond or
other security agreement.
If any portion of the said improvements shall not be approved or shall be rejected by the Board of Supervisors, the applicant shall proceed to complete the same and, upon completion, the same procedure of notification, as outlined in § 109-60 shall be followed.
Nothing herein, however shall be construed in limitation of
the applicant's right to contest or question by legal proceedings
or otherwise any determination of the Board of Supervisors or Township
Engineer.
A.
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 Township can enforce any corporate bond or
other security by appropriate legal and equitable remedies.
B.
If the 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, may institute appropriate legal or equitable
action to recover the moneys necessary to complete the remainder of
the improvements.
C.
All of the proceeds, whether resulting from the security or from
any legal or equitable action or from both brought against the applicant
shall be used solely for the installation of the improvements covered
by such security, and not for any other municipal purpose.
A.
In addition to the fees noted in § 109-9 of this chapter, the developer shall be responsible for payment of all engineering fees which the Township may incur as related to §§ 109-51, 109-52, 109-55, 109-56, 109-57 and 109-60 of this chapter. The developer shall be required to fully reimburse the Township for said engineering fees. The developer shall also be required to fully reimburse the Township for any engineering and/or consulting fees which the Township may incur for the review of any required studies and/or reports within the context of an impact analysis as so defined in Article II of this chapter. Upon notification by the Township of such costs, the developer shall provide a certified check or money order to the Township to fully reimburse the Township for said engineering fees, within 30 calendar days from the billing date from Bear Creek Township. An approved plan shall not be signed by the Board of Supervisors, nor shall any permits related to the development of the site be issued until all fees are paid in full.
B.
The Board of Supervisors shall also have the discretion to require
the applicant deposit funds into an escrow account to be drawn upon
by the Township for the payment of the above fees. In such cases,
the amount of funds to be deposited into such account shall be determined
by the Township with input from its consultants. Any funds deposited
in said account at the conclusion of payment of all required reimbursable
consulting fees shall be returned to the applicant. If the initial
amount of funds deposited into said account appears to be insufficient
to cover such costs, the Township shall notify the applicant of any
additional amount of funds required to be deposited for such purposes.
A.
An applicant may contest the amount to be reimbursed to the Township
for consulting fees. The applicant shall notify the Township, in writing,
within 10 calendar days of the billing date, as to which consulting
fees are disputed as being unreasonable and/or unnecessary. The applicant
shall forfeit any right to contest the amount to be reimbursed to
the Township for consulting fees, if written notification is not submitted
within the prescribed 10 calendar days of the date of the billing.
B.
In such cases, the Board of Supervisors shall not delay or disapprove
a subdivision or land development application or any permit related
to development due to the applicants written request to contest certain
consulting expenses.
C.
If, within 20 calendar days from the date of billing, the Township
and the applicant cannot agree on the amount of consulting expenses
which are reasonable and necessary, then the applicant and the Board
of Supervisors 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.
D.
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 calendar
days of the billing date. The applicant shall be required to pay the
entire amount determined in the decision immediately.
E.
In the event that the Board of Supervisors and applicant cannot agree
upon a professional engineer to be appointed within 20 calendar days
of the billing date, then upon application of either party, the President
Judge of the Luzerne County Court of Common Pleas (or if at the time
there be no President Judge, then the senior active judge then sitting)
shall appoint such engineer, who 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.
F.
The fee of the appointed professional engineer for determining the
reasonable and necessary consulting expenses shall be paid by the
applicant if the amount of the 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.
If neither of the aforementioned cases apply, the Township and the
applicant shall each pay 1/2 of the fee of the appointed professional
engineer.
