A.
No project shall be considered in compliance with this chapter until
the streets, parking facilities, storm drainage facilities, water
and sewer facilities, lot line markers and survey monuments and all
other required or proposed improvements have been installed in accord
with this chapter.
B.
No final plan shall be signed by the Board of Commissioners for recording
in the office of the Monroe County Recorder of Deeds until:
C.
Any approval granted by the Board of Commissioners for any improvement
required by this chapter shall be for subdivision and/or land development
approval purposes only and shall not constitute in any manner an approval
for dedication of any improvements to the Township.
The applicant shall not be required to provide financial security
for the costs of any improvements for which financial security is
required by and provided to the Pennsylvania Department of Transportation
in connection with the issuance of a highway occupancy permit pursuant
to Section 420 of the Act of June 1, 1945 (P.L. 1242, No. 428), known
as the "State Highway Law."[1] The applicant shall provide documentation that the required
performance guarantee has been provided to PennDOT.
[1]
Editor's Note: See 36 P.S. § 670-420.
In cases where final plan approval is proposed in sections or
stages, the Board of Commissioners shall require the construction
or guarantee of any and all development improvements required for
the service or protection of any section or stage of the development
proposed for final approval.
A.
Acceptable guarantees. The following are acceptable forms of performance
guarantees:
(1)
Escrow account. A deposit of cash either with the Board of Commissioners
or in escrow with a federal or Pennsylvania chartered financial institution.
The use of a financial institution for establishing an escrow account
shall be subject to approval by the Board of Commissioners.
(2)
Irrevocable letter of credit. A letter of credit provided by the
developer from a financial institution or other reputable institution
subject to the approval of the Board of Commissioners.
(3)
Other forms. Other forms of collateral, including, but not limited
to, surety performance bonds from a financially secure bonding company
authorized to conduct such business in Pennsylvania, in such form
and content as the Board of Commissioners may require or accept as
part of the security.
(4)
Additional requirements. The following requirements shall apply to the performance guarantees set forth in this § 390-35A:
(a)
The funds of any guarantee shall be held in trust until released
by the Board of Commissioners and may not be used or pledged by the
developer as security in any other matter during that period.
(b)
In the case of a failure on the part of the developer to complete
said improvements, the institution shall immediately make the funds
available to the Board of Commissioners for use in the completion
of those improvements approved as part of the final plan and as may
be required to service any lots or dwelling units as determined by
the Commissioners.
(c)
The applicable financial institution/surety shall guarantee the availability of funds in an amount equal to the established cost of completing all required improvements pursuant to § 390-35B.
(d)
The performance guarantee shall not be withdrawn, or reduced
in amount, until released by the Board of Commissioners.
B.
Amount of performance guarantee. The amount of the performance guarantee 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. Annually, the Board of Commissioners may adjust the amount of the performance guarantee 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 of Commissioners may require the developer to post additional security in order to assure that the performance guarantee equals said 110%. Any additional security shall be posted by the developer in accord with this § 390-35.
(1)
The amount of performance guarantee required shall be based upon
an estimate of the cost of completion of the required improvements,
prepared by the developer's engineer licensed as such in Pennsylvania
and certified in writing by such engineer to be a fair and reasonable
estimate of such cost. The Board of Commissioners, upon the recommendation
of the Township Engineer, may refuse to accept such estimate for good
cause shown. If the applicant and the Board of Commissioners are unable
to agree upon an estimate, then the estimate shall be recalculated
and certified by another professional engineer licensed as such in
Pennsylvania and chosen mutually by the Board of Commissioners and
the 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 Board of Commissioners
and the applicant or developer.
(2)
If the developer requires more than one year from the date of posting the guarantee to complete the required improvements, the amount of the guarantee shall be increased by an additional 10% for each one-year period beyond the first anniversary date of posting the guarantee or to an amount not exceeding 110% of the cost of completing the improvements as reestablished on or about the expiration of the preceding one-year period as estimated using the procedure established by this § 390-35B.
(3)
Prevailing wage rates shall be used to determine the amount of the
performance guarantee if the cost of the completion of the improvements
exceeds the current public work prevailing wage monetary threshold
established by the Prevailing Wage Act, as amended.[1]
[1]
Editor's Note: See 43 P.S. § 165-1 et seq.
C.
Terms of guarantee. Performance guarantees shall be submitted in
a form and with such surety as approved by the Board of Commissioners
to ensure that all improvements shall be completed within a fixed
period of time but not to exceed five years from the date of preliminary
plan approval unless the Board of Commissioners agrees to a longer
term.
D.
Release of performance guarantees.
(1)
Partial release. The developer may request the release of portions
of the performance guarantee for completed improvements.
(a)
Request. All such requests shall be in writing to the Board
of Commissioners and a copy to the Township Engineer and shall include
a certification from the developer's engineer that the subject
improvements have been completed in accord with the approved plans
and Township standards.
(b)
Inspection. Within 45 days of receipt of such request the Board
of Commissioners shall direct the Township Engineer to inspect the
subject improvements and certify in writing to the Board of Commissioners
that the improvements have been completed.; and the Board of Commissioners
shall authorize release of such portion of the performance guarantee
established by the Township Engineer to represent the value of the
completed improvements. If the Board of Commissioners fails to act
within said forty-five-day period, the Board of Commissioners shall
be deemed to have approved the release of funds as requested. The
Board of Commissioners 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.
(2)
Final release. When the developer has completed the construction
of all required improvements, the developer shall so notify the Board
of Commissioners.
(a)
Notification. Such notification shall be in writing, by certified
or registered mail, with a copy to the Township Engineer; and shall
include a certification from the developer's engineer that all
required improvements have been completed in accord with the approved
plans and Township standards.
(b)
Inspection. Within 10 days of receipt of said notice, the Board
of Commissioners shall direct and authorize the Township Engineer
to make a final inspection of the subject improvements.
(c)
Report. The Township Engineer shall within 30 days of receipt
of said authorization, file a detailed written report with the Board
of Commissioners, with a copy mailed to the developer by certified
or registered mail, recommending 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, said report shall
contain, by specific ordinance reference, a statement of reasons for
nonapproval or rejection.
(d)
Action. Within 15 days of receipt of the Township Engineer's
report, the Board of Commissioners shall act upon said report and
shall notify the developer in writing by certified or registered mail
of their action. If the Board of Commissioners 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 all liability pursuant to its performance guarantee.
(e)
Rejected or unapproved improvements. If any portion of the subject improvements are not approved or are rejected by the Board of Commissioners, the developer shall proceed to rectify and/or complete the same and, upon completion, the same procedure of notification, as outlined in this § 390-35D, shall be followed.
(f)
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 accord with the approved plan, the
Board of Commissioners may enforce any performance guarantee by appropriate
legal and equitable remedies. If proceeds of the performance guarantee
are insufficient to pay the cost of installing or making repairs or
corrections to all the improvements covered by the performance guarantee,
the Board of Commissioners may, at its option, install part of such
improvements in all or part of the subdivision and/or development
and may institute appropriate legal or equitable action to recover
the monies necessary to complete the remainder of the improvements.
All of the proceeds, whether resulting from the performance guarantee
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 performance guarantee and not for any other municipal
purposes except for reimbursement of Township court costs, reasonable
attorney fees and other costs of enforcement.
This section shall apply to all construction of improvements
whether the improvements are completed prior to final plan approval
or guarantees are provided. Improvements construction shall in all
cases be coordinated with the Township Engineer.
A.
Construction plans and drawings. The construction of any improvements
shown on an approved preliminary plan or in conjunction with the final
plan application and guarantee proposal shall be accomplished only
in accord with the approved final construction plans detailing the
design and installation of all improvements and documenting compliance
with this chapter.
B.
Schedule. The developer shall, prior to the initiation of construction
of any required improvements, submit to the Township a schedule of
construction for all required improvements, including the timing of
the development of any proposed sections.
C.
Inspections. Based upon the construction schedule and the nature
of the required improvements and within 30 days of receipt of said
construction schedule, the applicant shall coordinate with the Township
Engineer and Monroe County Conservation District a preconstruction
meeting to discuss inspection milestones and scheduling.
D.
Notice. The developer shall provide a minimum of two working days'
notice prior to the time when construction will have proceeded to
the time of an inspection required by the Township.
E.
Cost. The cost of all inspections conducted by the Township shall
be borne by the developer.
In the event the developer offers, and the Board of Commissioners
agrees to accept, the dedication of any improvements following their
completion, the developer shall provide to the Board of Commissioners
an improvement construction maintenance guarantee in an amount determined
by the Board of Commissioners but not less than 15% of the cost of
all required improvements as estimated by the applicant's engineer
and approved by the Township Engineer.
A.
Form; amount; action. Such maintenance guarantee shall be in such form as prescribed in § 390-35A and shall guarantee that the developer shall maintain all improvements in good structural and operable condition during the 18 months after the completion of construction or installation and acceptance of dedication of the improvements. If the developer is negligent or fails to maintain all improvements in good condition during the eighteen-month period, the Board of Commissioners may enforce the maintenance guarantee, bond or other surety by appropriate and equitable remedies. If proceeds of such bond or other surety are insufficient to pay the cost of maintaining the improvements during said eighteen-month period, the Board of Commissioners, at its option, may institute appropriate legal or equitable action to recover the monies necessary for maintaining the improvements in good condition.
B.
Release. After the expiration of the 18 months from the date of the
acceptance of dedication of the subject improvements and if all improvements
are certified by the Township Engineer to be in good structural and
operable condition, the Board of Commissioners shall release the maintenance
guarantee and surety to the developer or party posting said maintenance
guarantee and surety.
(Note: See § 390-39 for open space and recreation landownership and maintenance.)
A.
The developer shall provide to the satisfaction of the Board of Commissioners,
and prior to final plan approval, evidence of the provision for the
succession of ownership and responsibility for the operation and maintenance
of development improvements.
B.
Plan required. The developer shall provide a plan for the succession
of ownership, operation and maintenance prepared by the applicant
for consideration and approval by the Township, and such plan shall
be made part of the development deed covenants and restrictions.
(1)
Responsibility. The plan shall establish responsibilities for the
continuing ownership, operation and maintenance of all proposed improvements
and facilities and an acceptable process and time line shall be established
for the transfer of the improvements and maintenance responsibilities,
if transfer to another body or entity is planned.
(2)
Required actions; schedules. The plan shall detail required routine
operation and maintenance actions and schedules necessary to ensure
proper operation and maintenance of all improvements and facilities.
(3)
Maintenance determination. The Board of Commissioners, upon recommendation
of the Township Engineer and Township Solicitor, shall make the final
determination on the continuing operation and maintenance responsibilities
prior to approval of the final plan.
(4)
Transfer of maintenance funds. The plan shall include provisions
for the transfer of any operation and maintenance funds required by
this chapter to the property owners association (POA), or condominium
association (CA), or other successors in ownership and include a requirement
that such funds will be dedicated to the intended use.
C.
Private operation and maintenance.
(1)
Land developments. In the case of land developments such provision
shall be in the form of deed covenants and restrictions clearly placing
the responsibility of maintenance of all development improvements
with the owner of the land development.
(2)
Residential developments. In the case of subdivisions, conservation design developments, multifamily housing projects and other residential developments involving the transfer of property, the developer shall provide, by deed covenants and restrictions, for the creation of a property owners association (POA) or condominium association (CA) to assume the ultimate ownership of all development improvements and responsibility for maintenance of such improvements. (Note: See § 390-39E for open space and recreation landownership and maintenance.) Membership in the POA or CA shall be mandatory for all property owners in the development. The developer shall also be a member of the POA or CA and shall remain responsible for payment of any per lot dues or fees assessed by the POA or CA which are associated with improvements serving said lots. The deed covenants and restrictions creating the POA or CA shall be subject to the approval of the Board of Commissioners.
(3)
Any improvements which will remain private. In the case where roads, drainage facilities, a central sewage treatment system or central water supply, or any other improvements are to remain private, the developer shall provide for the establishment of an escrow fund in accord with § 390-35A to guarantee the operation and maintenance of the improvements. Said fund shall be established on a permanent basis with administrative provisions approved by the Board of Commissioners. The amount of said fund shall be 15% of the construction cost of the system as verified by the Township Engineer. The maintenance and operation of the improvements and the administration of any required maintenance fund account, shall be clearly established as the joint responsibility of the owner(s) of each structure or dwelling unit served by such system. Such responsibility and the mechanism to accomplish same shall be established by deed covenants and restrictions which shall be subject to the approval of the Board of Commissioners.
(4)
Failure to maintain. The bylaws and covenants shall also provide
that, if the maintenance is not performed by the association as required,
the Township may have the maintenance work performed, in which event,
after providing notice to the unit/lot owners, the Township shall
have the authority to place municipal liens upon any or all units/lots
in the subdivision/land development association to recover the maintenance
costs and expenses, as well as all legal costs and expenses (including,
but not limited to, attorney fees) if the property-owners association
does not fulfill its responsibilities.
D.
Dedication to Township. Where a plan includes a proposed dedication
of improvements, neither the plan approval nor the developer's
completion of the improvements shall obligate the Board of Commissioners
to accept the same. Acceptance of a proposed dedication shall be a
matter of discretion for the Board of Commissioners. If determined
by the Board to be in the interest of the public health, safety and
general welfare, the Board of Commissioners may accept roads and associated
drainage facilities, but shall generally not accept any stormwater
control facilities used to manage stormwater within any subdivision
or land development, sewage disposal systems, water supply systems,
sidewalks, or other improvements unless the Board of Commissioners
deems it necessary to fulfill the purposes of this chapter or the
Township Official Wastewater Facilities Plan or Stormwater Management
Plan. In accepting any improvements the Board of Commissioners may
attach such reasonable conditions as it deems necessary to fulfill
the purposes of this chapter.
This § 390-39 shall apply to any development which involves the ownership and maintenance of open space or recreation land held in common or owned and maintained through other arrangements approved by the Board of Commissioners (referred to as "common open space") as required by this chapter.
A.
Purpose. The requirements of this § 390-39 are intended to assure in perpetuity the ownership, use and maintenance of common open space. The general principle shall be to assign ownership and maintenance responsibility to that entity which is best suited for the same and which will allocate any associated costs to the individuals which directly benefit from the use of the common open space.
B.
Plan and legal documents. The developer shall submit a plan and proposed
legal documents for the purpose of establishing, in perpetuity, the
use, ownership and maintenance of the approved common open space.
The plan shall be approved by the Board of Commissioners with the
recommendation of the Township Solicitor. The provisions of the approved
plan shall be incorporated into a development agreement with the Board
of Commissioners, deed covenants and restrictions, or other legal
document which will affect the plan and which can be enforced by the
Board of Commissioners.
(1)
The plan shall define ownership and an acceptable process and time
line shall be established for the transfer of the lands and maintenance
responsibilities to the body or entity so designated, if transfer
is proposed by the plan.
(2)
The plan shall establish necessary regular and periodic operation
and maintenance responsibilities for the various kinds of open space
(e.g., lawns, playing fields, meadow, pasture, crop land, woodlands,
etc.).
(3)
The plan shall estimate staffing needs, insurance requirements, and
associated costs, and define the means for funding the maintenance
of the open land and operation of any common facilities on an ongoing
basis. Such funding plan shall include the means for funding long-term
capital improvements as well as regular yearly operating and maintenance
costs.
(4)
The Board of Commissioners may require the applicant to escrow sufficient
funds for the maintenance and operation costs of common facilities
for up to 18 months.
(5)
Any changes to the maintenance plan must first be approved by the
Board of Commissioners.
C.
(Reserved)
D.
Development plan designations. The subdivision/land development plan
which will be recorded following final approval of the development
shall clearly show all common open space and specifically note the
use, ownership and maintenance responsibility of the same. Reference
to the legal document(s) governing the use, ownership and maintenance
of common open space shall be noted on the plan. The plan shall also
contain the following statement: Open land, recreation land, common
facilities and development improvements shall not be sold separately
or be further subdivided or developed, nor shall such land be used
for density for any other development.
E.
Methods for use dedication and common open space ownership and maintenance.
(1)
Ownership. Required common open space shall be offered for dedication
to the Township, unless the Board of Commissioners agrees to a proposal
to transfer to any of the following: Pocono Mountain School District,
Monroe County, Pennsylvania Bureau of State Parks, Pennsylvania Bureau
of Forestry, the Pennsylvania Fish and Boat Commission, the Pennsylvania
Game Commission, a homeowner association, a single property owner
in the case of agricultural or forest land or an environmental organization
or land trust acceptable to the Board of Commissioners.
(2)
Dedication. The Board of Commissioners is under no obligation to
accept an offer of dedication to the Township, but shall have the
authority to ensure that an appropriate long-term method will be in
place to own and maintain common open space.
(3)
Deed restrictions/conservation easements. Common open space shall
be protected from future development and subdivision by a permanent
conservation easement or deed restriction, acceptable to and enforceable
by the Board of Commissioners. Such restriction may also be enforceable
by other parties. Such restrictions shall prohibit the construction
of any buildings, except buildings for noncommercial recreation or
that are necessary to support maintenance of the open space.
(4)
Rental development. In the case of a rental development, the Township
may permit the common open space to be retained by the owner of the
adjacent residential rental buildings.
(5)
Private parcel. Where another form of ownership is not practical,
the Board of Commissioners may permit the required open space to be
added onto a privately owned parcel, provided a permanent conservation
easement protects the open space from development.
(6)
The use of common open space and common open space ownership and
maintenance shall be addressed by one or a combination of the methods
which follow. In any case, the developer shall document to the satisfaction
of the Board of Commissioners that the chosen method(s) will preserve
the common open space use rights established in accord with this article
and provide for the perpetual ownership and maintenance of all open
land, and recreation land.
(7)
All methods shall establish a mechanism for the Board of Commissioners
to effect the use dedication and require operation and maintenance
of common open space, should the means established by the developer
fail to provide the same.
(8)
All methods for use dedication and common open space ownership and
maintenance, and any combination of methods, and any change in method
which may be proposed by the ownership and maintenance entity, shall
be subject to the approval of the Board of Commissioners. Operation
and maintenance provisions shall include, but not be limited to, capital
budgeting for repair and/or replacement of development improvements
and common facilities, working capital, operating expenses, casualty
and liability insurance, and contingencies.
(9)
Property owners association or condominium agreements. All common
open space may be owned and maintained by a property owners association
(POA) or condominium association (CA) including all lot and/or condominium
owners in the development provided: [The provisions of Section 705(f)
of the Pennsylvania Municipalities Planning Code[1] should serve as a model, in concept, for the maintenance
responsibilities/enforcement provisions of such agreement.]
(a)
The POA/CA is established by the developer as a nonprofit corporation
for the express purpose of ownership and maintenance of the common
open space, or as otherwise may be required by state statute.
(b)
Participation in the POA/CA is mandatory for all lot/unit owners.
(c)
Provision is made for the maintenance of common open space during
the lot/unit sale period and the orderly transition of responsibility
from the developer to the POA/CA.
(d)
The POA/CA is empowered to assess POA/CA members to fund the
administration of the POA/CA and other costs associated with the common
open space responsibilities.
(e)
The covenants shall also provide that, if the maintenance is
not performed by the association as required, the Township may have
the maintenance work performed, in which event, after providing notice
to the unit/lot owners, the Township shall have the authority to place
municipal liens upon any or all units/lots in the subdivision/land
development to recover the maintenance costs and expenses, as well
as all legal costs and expenses (including, but not limited to, attorney
fees) if the POA/CA does not fulfill its responsibilities.
[1]
Editor's Note: See 53 P.S. § 10705(f).
(10)
Transfer to a private conservation organization. In the case
of open space and recreation land, the developer may transfer fee
simple title to the areas, or parts thereof, to a private, nonprofit
organization among whose purposes is the conservation of open land
and/or natural resources; provided that:
(a)
The deed contains the necessary covenants and restrictions in
favor of the Township to effect the use dedication and common open
space ownership and maintenance standards of this article and this
chapter.
(b)
The organization proposed is a bona fide, operating and stable
conservation organization with a perpetual existence, acceptable to
the Board of Commissioners.
(c)
The conveyance of title contains the necessary provisions for
proper transfer to another qualified organization should the organization
be unable to continue to fulfill its responsibilities and obligations.
(d)
A maintenance agreement is entered into among the developer,
the organization and the Township, in form and substance acceptable
to the Board of Commissioners.
(11)
Deed restricted (noncommon) private ownership. Deed restrictions
on privately held lands may be used to preserve open space provided
such restrictions include a conservation easement in favor of the
Township, with provisions for reversion to the Township, POA or trustee
holding the remainder of the common open space.
(12)
Deed or deeds of trust. The Landowner may provide, as approved
by the Board of Commissioners, for the use, ownership and maintenance
of common open space by establishing a trust for the same via a deed
or deeds. The trustee shall be empowered to levy and collect assessments
from the property owners for the operation and maintenance of the
development.
(13)
Conservation easements held by the Township. In the case of
open space and recreation lands, the Board of Commissioners may, but
shall not be required to, accept title to conservation easements on
any such lands. In such cases, the land remains in the ownership of
an individual, POA or condominium, while the development rights are
held by the Township. The lands may be used in accord with the requirements
of this chapter and title to such lands may be transferred to other
parties for use as restricted by the conservation easement.
(14)
Fee simple and/or easement dedication to the Township. In the
case of open space or recreation lands, the Board of Commissioners
may, but shall not be required to, accept in fee, the title to any
such lands, or any interests (such as development rights or conservation
easements) therein, for public use and maintenance, provided:
Should the method established to preserve the use, operation
and maintenance of improvements or common open space (including any
required recreation land) fail to do so in reasonable order and condition
in accord with the approved development plan, the Board of Commissioners
shall have the right and authority to take all necessary legal action
to effect such use dedication, operation and maintenance. The action
of the Board of Commissioners shall be in accord with the following:
A.
Notice. The Board of Commissioners shall serve written notice on
the assigned entity or the property owners in the development setting
forth the details of the failure of the entity with regard to the
use dedication and operation and maintenance.
B.
Correction of deficiencies. The notice shall include a demand that
the deficiencies be corrected in a reasonable period of time which
shall be stated in the notice.
C.
Public hearing. If requested by a party within 10 days of the date
of the notice, a public hearing shall be conducted subsequent to the
notice and shall be advertised in accord with the definition of public
notice contained in this chapter. At such hearing, the Board of Commissioners
may modify the terms of the original notice as to the deficiencies
and may extend the time for correction of the deficiencies.
D.
Failure to correct. In the event the deficiencies in the notice,
as may have been modified at a public hearing, are not corrected in
accord with the established time period, the Board of Commissioners
may enter upon the common open space and maintain the same and/or
correct the deficiencies. The Board of Commissioners shall continue
such action for such time as may be necessary to correct the deficiencies.
Said action shall not constitute a taking or dedication of any improvement
or common open space, nor vest in the public the right to use any
improvement or common open space unless such right was previously
established.
E.
Reinstatement of responsibility. The responsibility of operation
and maintenance shall not be reinstated to the assigned entity until
such time as the entity has demonstrated to the Board of Commissioners
that the proper steps have been effected to modify the terms of use
dedication, operation and/or maintenance; and/or to reorganize or
replace the responsible entity so that use dedication and operation
and maintenance established by the approved development plan will
be assured.
G.
Public costs. The costs of the preservation of use dedication and
the cost of maintenance and operation of any improvements or open
space conducted by the Township in accord with this article, and including
any administrative and legal costs, shall be assessed ratably against
the properties in the subject development which have a right of enjoyment
and/or use of the common open space. The assessment shall constitute
a lien on said properties.
All applicants proposing any subdivision and/or land development
requiring the installation of improvements as required by this chapter
shall, prior to final plan approval by the Board of Commissioners,
and if so directed by the Board of Commissioners, enter into a legally
binding development agreement with the Township whereby the developer
guarantees the installation of the required improvements in accord
with the approved plan and all Township requirements.
A.
Contents. The development agreement shall be in a form and substance
acceptable to the Board of Commissioners. It shall provide for all
matters determined necessary by the Board of Commissioners and the
following, where applicable:
(1)
The construction of all facilities authorized by the approved plans
(streets, drainage, etc.) in itemized format.
(2)
Installation of survey markers.
(3)
Installation of all public utility lines.
(4)
Prevention of erosion, sedimentation and water damage to the subject,
adjacent and downstream properties.
(5)
Developer's responsibility for any damages to adjacent or neighboring
properties.
(6)
A work schedule setting forth the beginning and ending dates, and
such other details as the Township deems fit and appropriate, for
improvements contained herein, including the timing of the development
of any proposed sections.
(7)
The estimated cost of the improvements not yet completed, including
the amount of performance guarantee.
(8)
Security in the form of a performance guarantee approved by the Board
of Commissioners to insure the installation of the required improvements,
and provisions for the administration of the same.
(9)
Security in the form of a maintenance guarantee approved by the Board
of Commissioners for the repair or reconstruction of improvements
which are found by the Township Engineer to be defective within 18
months from the date formal acceptance of any dedication of said improvements,
together with provisions for disbursement thereof.
(10)
A set of reproducible as-built plans prepared by and certified
to by a registered professional engineer and/or a registered professional
surveyor of all roadways and streets, bridges, drainage systems, sewage
collection and treatment systems and water distribution systems and
all other improvements.
(11)
A clear statement of when the developer responsibility for any
development open space, improvements and facilities ends, and the
succession of ownership, operation and maintenance of all open space,
improvements and facilities, and the transfer of any operation and
maintenance funds required by this chapter to the POA or other successors
of ownership.
(12)
Public liability insurance for the duration of improvements
construction. A copy of the policy or other evidence of coverage shall
be submitted to the Board of Commissioners.
(13)
An indemnification and hold harmless clause to protect the Township
from any and all liability.
(14)
The developer's responsibility for all reasonable engineering
and consulting costs and expenses for inspection, consultations and
preparation of agreements, to the extent such costs and expenses exceed
the monies paid by the developer in accordance with the standard fee
schedules.
(15)
Provisions for changing the approved final plan, supporting
plans, profiles, data, specifications and related documents.
(16)
Provisions for violations of the development agreement and enforcement
remedies.
(17)
Provisions for severability of any article.
(18)
Provisions for any additional agreements deemed necessary.
B.
Execution. The final plan shall not be unconditionally approved by
the Board of Commissioners prior to the execution of this agreement,
if so required by the Board of Commissioners.
A.
All applicants proposing any subdivision or land development which
provides for the dedication of improvements required by this chapter
or any improvements or amenities which appear on the plan shall be
required to enter into a legally binding maintenance agreement with
the Township prior to acceptance of dedication by the Township.
B.
The dedication of any improvement shall not be accepted by the Township
prior to the execution of a maintenance agreement and the delivery
of the maintenance guarantee.
C.
Form and content.
(1)
The maintenance agreement shall be in the manner and form approved
by the Township Solicitor.
(2)
The maintenance agreement shall require the applicant to make any
repair or reconstruction of any improvement stipulated in the maintenance
agreement which is specified by the Board of Commissioners as necessary
by reason of faulty construction, workmanship, or materials prior
to acceptance of such improvement by the Township.
(3)
The maintenance agreement shall require the applicant to maintain
at his own cost all improvements stipulated in the maintenance agreement.
This period shall not exceed 18 months from the date of acceptance
or dedication by the Township, except for any special purpose escrow
or maintenance agreement required by the Township.
(4)
The maintenance agreement shall require the posting of financial security, in accordance with § 390-37, 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.
(5)
Snowplowing. It shall be the responsibility of the applicant to plow
snow and maintain all streets until such time as the Township may
accept such streets.
(6)
Public utilities and authorities. 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
and 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.
D.
Execution. The final plan shall not be unconditionally approved by
the Board of Commissioners prior to the execution of the agreement,
if so required by the Board of Commissioners.
