A.
No project shall be considered in compliance with this chapter until
the streets, street signs, street trees, sidewalks, curbs, survey
monuments and markers, landscaping required by this chapter, storm
drainage for dedication or which affects adjacent properties or streets,
sanitary sewer facilities for multiple use, water supply facilities
for multiple use, fire hydrants, and other such improvements required
by this chapter have been installed in accordance with this chapter
and other applicable Township ordinances.
B.
When sanitary sewer and water supply facilities 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.
C.
No final plan shall be signed by the Board of Supervisors for recording
in the office of the York County Recorder of Deeds unless:
A.
The administration of the financial security shall comply with the
provisions of this article, the Pennsylvania Municipalities Planning
Code, Act 247, as reenacted and amended by Act 170 of 1988,[1] and as subsequently amended, and other applicable laws
of the commonwealth.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Submission of financial security. Final plan applications which include
required improvements that have not been installed shall include a
financial security and memorandum of understanding or developer's
agreement (see sample memorandum available at the Township Municipal
Office).
(1)
Type of financial security. Financial security must comply with the
following and is subject to review by the Township Solicitor and Board
of Supervisors for adequacy:
(a)
Irrevocable letter of credit. A letter provided by the developer
from a federally chartered financial institution.
(b)
Escrow account. A deposit of cash either with the Township or
in escrow with a federally chartered financial institution.
(c)
Bond. A bond with corporate surety authorized by the Pennsylvania
Insurance Commission to do business in Pennsylvania.
(d)
Other. A deposit of any other form acceptable to the Township
Solicitor, Township Engineer and Board of Supervisors.
(2)
General contents. The terms of any financial security documents shall
be acceptable to the Township Solicitor, Township Engineer and Board
of Supervisors.
(a)
The amount of secured funds.
(b)
In case of failure on the part of the developer to complete
the specified improvements within a time period specified in a written
agreement, the funds shall be paid to the Township immediately and
without further action, upon presentation of a signed draft in an
amount necessary to finance the completion of those improvements,
up to the limit of the security.
(c)
The security is irrevocable and may not be withdrawn or reduced
in amount by other than the Township until release or partially released
by the Township.
(3)
Amount of financial security.
(a)
The amount of financial security 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 Township may adjust
the amount of financial security by comparing the actual cost for
the completion of the remaining improvements as of the expiration
of the 90th day after either the original date schedule 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%. Any
additional security shall be posted by the developer in accordance
with this chapter.
(b)
The amount of financial security required shall be based upon
an estimate of the cost of completion (including quantities and unit
cost) of the required improvements, submitted by a developer and prepared
and certified by an engineer to be a fair and reasonable estimate
of such cost.
(c)
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 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 reestablished on or about the expiration of the preceding one-year
period by using the above procedure.
(d)
As the work of installing the required improvements proceeds,
the party posting the financial security may request the governing
body to release or authorize the release, from time to time, 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 governing body, and the governing body shall have
45 days from receipt of such request within which to allow the municipal
engineer to certify, in writing, to the governing body that such portion
of the work upon the improvements has been completed in accordance
with the approved plat. Upon such certification, the governing body
shall authorize release by the bonding company or lending institution
of an amount as estimated by the municipal engineer fairly representing
the value of the improvements completed or, if the governing body
fails to act within said forty-five-day period, the governing body
shall be deemed to have approved the release of funds as requested.
The governing body 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.
When the developer has completed all of the necessary and appropriate
improvements, the developer shall notify the Township, 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 Township shall, within 10 working 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 Township, 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
the reasons for such nonapproval or rejection.
B.
The Township shall notify the developer within 15 working days of
receipt of the Township Engineer's report, in writing by certified
or registered mail of the action of the Township.
C.
If the Township 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 guaranty bond or other
security agreement.
D.
If any portion of the said improvements shall not be approved or
shall be rejected by the Township, the developer shall proceed to
complete the same and, upon completion, the same procedure of notification,
as outlined herein, shall be followed.
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 Township or the Township Engineer.
F.
Where herein reference is made to the Township Engineer, it shall
be as a professional consultant thereto.
G.
The Board of Supervisors shall establish, by ordinance or resolution
a schedule for inspection fees to be paid by the applicant. Every
applicant or developer shall reimburse the Township for the reasonable
and necessary expense incurred in connection with the inspection of
improvements. Inspection fees shall include reasonable and necessary
charges by the Township's professional consultants for inspection
and report thereon to the Township. The applicant shall not be required
to reimburse the Township for any inspection which is duplicative
of inspections conducted by other governmental agencies or public
utilities. The burden of proving that any inspection is duplicative
shall be upon the objecting applicant. Such expense shall be reasonable
and in accordance with the ordinary and customary fees charge by the
Township's professional 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 professional consultant to the Township
for comparable services when fees are not reimbursed or otherwise
imposed on applicants.
H.
The Board of Supervisors shall submit to the applicant an itemized
bill showing the work performed in connection with the inspection
of improvements performed, identifying the person performing the services
and the time and date spent for each task. In the even the applicant
disputes the amount of any such expense in connection with the inspection
of improvements, the applicant shall, no later than 100 days after
the date of transmittal of a bill for inspection services, notify
the Township and the Township's professional consultant that such
inspection expenses are disputed as unreasonable or unnecessary and
shall explain the basis of their objections to the fees charged, in
which case the Township shall not delay or disapprove a request for
release of financial security, a subdivision or land development application
or any approval or permit related to development due to the applicant's
dispute of inspection expenses. Failure of the applicant to dispute
a bill within 100 days shall be a waiver of the applicant's right
to arbitration of that bill under this section.
I.
Subsequent to the final release of financial security for completion
of improvements for a subdivision or land development, or any phase
thereof, the professional consultant shall submit to the Board of
Supervisors a bill for inspection services, specifically designated
as a final bill. The final bill shall include inspection fees incurred
through the release of financial security.
J.
If a professional consultant and the applicant cannot agree on the
amount of expenses which are reasonable and necessary, then the applicant
shall have the right, within 100 days of the transmittal of the final
bill or supplement to the final bill to the applicant, to request
the appointment of another professional consultant to serve as an
arbitrator. The applicant and professional consultant whose fees are
being challenged shall, by mutual agreement, appoint another professional
consultant to review any bills the applicant has disputed and which
remain unresolved and make a determination as to the amount thereof
which is reasonable and necessary. The arbitrator shall be of the
same profession as the professional consultant whose fees are being
challenged.
K.
The arbitrator so appointed shall hear such evidence and review such
documentation as the arbitrator in his or her sole opinion deems necessary
and shall render a decision no later than 50 days after the date of
appointment. Based on the decision of the arbitrator, the applicant
or the professional consultant whose fees were challenged shall be
required to pay any amounts necessary to implement the decision within
60 days. In the even the Township has paid the professional consultant
an amount in excess of the amount determined to be reasonable and
necessary, the professional consultant shall within 60 days reimburse
the excess payment.
L.
In the event that the Township's professional consultant and applicant
cannot agree upon the arbitrator to be appointed within 20 days of
the request for appointment of an arbitrator, then, upon application
of either party, the President judge of the Court of Common Pleas
of York County (or if at the time there be no President Judge, then
the senior active judge then sitting) shall appoint such arbitrator,
who, in that case, shall be neither the Township's professional consultant
nor any professional consultant who has been retained by, or performed
services for, the Township or the applicant within the preceding five
years.
M.
The fee of the arbitrator shall be paid by the applicant if the disputed
fee is upheld by the arbitrator. The fee of the arbitrator shall be
paid by the charging party if the disputed fee is $2,500 or greater
than the payment decided by the arbitrator. The fee of the arbitrator
shall be paid in an equal amount by the applicant and the charging
party if the disputed fee is less than $2,500 of the payment decided
by the arbitrator.
N.
In the event that the disputed fees have been paid and the arbitrator
finds that the disputed fees are unreasonable or excessive by more
than $10,000, the arbitrator shall:
O.
The Township or an applicant shall have 100 days after paying a fee
to dispute any fee charged as being unreasonable or excessive.
P.
The fee of the arbitrator shall be paid by the applicant if the review
fee charged is sustained by the arbitrator; otherwise, it shall be
divided equally between the parties. If the disputed fees are found
to be excessive by more than $5,000, the arbitrator shall have the
discretion to assess the arbitration fee in whole or in part against
either the applicant or the professional consultant. The Board of
Supervisors and the consultant whose fees are the subject of the dispute
shall be parties to the proceeding.
If proceeds of the financial security are insufficient to pay
the cost of installing or making repairs or corrections to all the
improvements covered by said security, the Board of Supervisors may,
at its option, install all or part of such improvements and may institute
appropriate legal or equitable action to recover the funds 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 applicant, or both, shall be used solely
for the installation of the improvements covered by such security,
and not for any other municipal purpose.
A.
Authorization for construction. The applicant may receive approval
to construct only the improvements required as part of this chapter
upon receipt of conditional final plan approval with the only outstanding
condition being the guarantee of public improvements, the recording
of the plan. However, the approvals/permits from other agencies with
jurisdiction shall be obtained.
B.
The construction of improvements is limited to streets, street signs,
street trees, sidewalks, curbs, survey monuments and markers, landscaping
required by this chapter, storm drainage for dedication or which affects
adjacent properties or streets, sanitary sewer facilities for multiple
use, water supply facilities for multiple use, fire hydrants, and
other such improvements.
C.
Completion of public improvement. When all or part of the required improvements are complete, the developer shall notify the Board of Supervisors. Except for mandatory inspection during construction, notification of completion of a portion of the required improvements is only necessary should the developer elect to financially secure the remaining improvements in accordance with § 435-72.
D.
Notification of completion of improvements shall be in writing, by certified or registered mail, and copy thereof shall be sent to the Township Engineer. This notice shall include the "as-built plan" in accordance with § 435-77.
E.
After receipt of notice that improvements are completed, the Board
of Supervisors shall, within 10 days, authorize the Township Engineer
to inspect all of the aforesaid improvements. The Township Engineer
shall, thereupon, within 30 days of authorization, file a report,
in writing, with the Board of Supervisors, and shall promptly mail
a copy of the same to the developer by certified or registered mail.
The 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, are not approved by the Township Engineer,
said report shall contain a statement of reasons for such rejection.
F.
The Board of Supervisors shall notify the developer, within 15 days
of receipt of the Township Engineer's report, in writing by certified
or registered mail of the action of the Board of Supervisors with
relation thereto.
G.
If any portion of the said improvements shall not be approved by
the Board of Supervisors, the developer shall proceed to complete
the same and, upon completion, the same procedure of notification,
as outlined herein, shall be followed.
H.
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 Board of Supervisors or the Township Engineer.
A.
Inspections shall be required prior to the start of construction,
during installation of materials and structures, and upon the completion
of all improvements. Prior to the initiation of construction, the
developer shall arrange a preconstruction meeting with the Township
Engineer or designee so that an inspection schedule can be coordinated
with the construction schedule. The Township Engineer or designee
shall be notified two working days in advance of any intended date
of construction. The provisions stated herein shall not be construed
as mandating periodic inspections and the undertaking of periodic
inspections shall not be construed as an acceptance of the work during
construction or as a final inspection of the construction.
B.
The Township, at the expense of the developer, reserves the right
for the Township Engineer to require drawing detail or shop drawing,
and/or tests by an approved testing facility to determine whether
the improvement complies in all respects with the requirements of
the Township.
C.
No underground pipes, structures, subgrades or base courses shall
be covered until inspected and approved by the duly authorized official
of the Township. Failure in compliance with this regulation shall
provide cause for uncovering of such work, at the applicant's expense,
to permit the required inspection.
D.
Whenever any work or materials are found to be not in compliance
with the final plan and/or applicable Township requirements, the Township
Engineer or any other duly authorized Township representative may
stop work on the job until such noncompliance or variance is eliminated
and any work or materials installed which are not in compliance are
made to comply. It shall be unlawful to do or prevent injury or damage
to person or property. Such stop order may be revoked by the Board
of Supervisors.
E.
A specific schedule and procedure for information will be established
for each project. The following is intended to describe the format
of inspections:
(1)
Subsoil system. Inspection and testing to determine subsoil compaction
to required density and inspection of subsoil elevation to insure
grade and profile compatibility.
(2)
Subgrade. Inspection and testing of subgrade type and required density.
(3)
Storm drainage system. Inspection and testing of pipe installation,
including inlets, manholes, endwalls, and bridges prior to backfilling.
(4)
Concrete curb. Inspection prior to installation of string line to
show type of curb, grade, and alignment. Material inspection, including
the submittal of all certified material delivery slips.
(5)
Street subbase course. Inspection of materials placed as subbase
prior to installation of base course, including the submittal of all
certified material delivery slips.
(6)
Street base course. Inspection of materials placed as base, including
the submittal of all certified material weight slips.
(7)
Street wearing course. Inspection of materials placed as wearing
surface, including the submittal of all certified material weight
slips.
(8)
Sidewalk. Inspection of subbase grade and form grade and alignment
prior to any pour.
(9)
Right-of-way profile. Inspection of required finish grade elevations
to limits of street right-of-way.
(10)
Storm drainage. Inspection of required finish grade elevations,
alignments and profiles to limits of easement.
(11)
Seeding, sodding and erosion control. Inspection as required
to assure compliance with storm drainage regulations.
(12)
Utilities. Utility provider must provide verification that utility
installation for development was acceptable.
Upon completion of all required improvements and prior to final
inspections of improvements, the developer shall submit a plan labeled
"as-built plan," showing the actual location, dimension and elevation
of all existing improvements in same scale as submitted plans. In
addition, the plan shall demonstrate the existing grading, drainage
structures, and/or drainage systems and erosion and sediment control
practices, including vegetative measures, are in substantial conformance
with the previously approved drawings and specifications. The plan
shall specifically identify all deviations from the previously approved
drawings and acknowledge the Township Engineer's approval of the change.
The applicant's engineer shall certify that the construction of the
stormwater management facility was completed in accordance with the
plans and specifications as approved by the Township. An electronic
version of approved as-built plan shall be provided in PDF format
and three paper copies of the plan shall be submitted to the Township
Secretary, or designee, who shall distribute a paper copy to the Township
Engineer and retain two copies for the Township files. These plans
are not subject to recording with the York County Recorder of Deeds.
All improvements shall be deemed to be private improvements
and only for the benefit of the specific project until such time as
the same have been offered for dedication and formally accepted by
the Board of Supervisors. No responsibility of any kind with respect
to improvements shown on the plan shall be transferred until the improvements
have been formally accepted. Proof is to be provided that utility
installations within public rights-of-way and easements have been
accepted by the governing utilities or agencies (i.e., MetEd, DAA,
PennDOT), release of liens, title search to indicate no liens exist
on the property, release from the lender prior to acceptance of improvements
by the Township. All requests for dedication shall be made in accordance
with Township rules and regulations, resolutions, ordinances and shall
include all information required by the Township for processing such
request, and shall be accompanied by any required filing fee.
The Board of Supervisors may, at its discretion, require the developer to submit a maintenance guarantee or other approved guarantee as specified herein, guaranteeing the structural integrity as well as function of any improvement shown on the final plan for a term not to exceed 18 months from the date of acceptance of dedication by the Board of Supervisors. Said guarantee shall be 15% of the actual cost of installation of said improvements and be of the same type of financial security as required in § 435-72B(1).
