Township of Sugarloaf, PA SECURITIES

[Ord. No. 4-2005, 8/9/2005]

No plan shall be finally approved unless evidence has been provided that the subdivider or developer has installed the necessary street and other improvements as required in Part 7 in accordance with Township standards and specifications; or that the subdivider or developer has furnished the Township with the following assurances that said improvements will be installed:

A written agreement concerning improvements not yet completed in a form provided by the Township that the subdivider or developer will lay out and improve roads and streets, erosion and sediment control facilities, underground utilities and construct all of the improvements required in Part 7 as a condition of the approval of the plan by the Board of Supervisors within the time or times specified therein.

Deposit with the Township of financial security in an amount sufficient to cover the costs of such improvements or common amenities, including, but not limited to, roads, stormwater detention and/or retention basins and other related drainage facilities, open space improvements or buffer or screen plantings which may be required.

When requested by the applicant, in order to facilitate financing, the Township will furnish the applicant with a signed copy of a resolution identifying approval of the plat contingent upon the developer obtaining a satisfactory financial security. The final plat or record plan shall not be signed nor recorded until the financial improvements agreement is executed. 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 Township.

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. 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 of the execution of the 90th day after either the original date scheduled for completion or the rescheduled date of completion. Subsequent to said adjustment, the developer shall post additional security in order to assure that the financial security equals 110%. Any additional security shall be posted by the applicant in accordance with the requirements of this Part.

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 bonding institution is authorized to conduct said business within the commonwealth. In lieu of a bond, the subdivider or developer may deposit cash or securities with the Township or with a bank or trust company to guarantee performance of said contract and to secure completion of the improvements under an escrow agreement approved by the Township Solicitor and Board of Supervisors. The amount of the bond or other guarantee shall be sufficient to cover the cost of required improvements as estimated by the Engineer. The escrow agent for the deposits of such cash or securities shall be designated and selected by the Board of Supervisors.

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.

Federal or commonwealth chartered lending institutions' irrevocable letters of credit and restrictive or escrow accounts in such lending institutions are acceptable forms of financial security which may be utilized by an applicant to comply with the requirements of this Part.

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 this commonwealth and certified by such engineer to be a fair and reasonable estimate of such cost. 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 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 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 another professional engineer licensed as such in this commonwealth 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.

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Editor's Note: See 36 P.S. § 670-420.

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 bidding procedure.

In the case where development is projected over a period of years, the Township may authorize submission of final plats by section or stages of development subject to such requirements or guarantees as to improvements in future sections or stages of development as it finds essential for the protection of any finally approved section of the development.

As the work of installing the required improvements proceeds, the party posting the financial security may request the Township 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 requests shall be in writing addressed to the Township, and the Township shall have 45 days from receipt of such request within which to allow the Township Engineer to certify, in writing, to the Township that such portion of the work upon the improvements has been completed in accordance with the approved plat. Upon such certification, the Township shall 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 Township fails to act within said forty-five-day period, the Township shall be deemed to have approved the release of funds as requested. The Township 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 Township accepts dedication of all or some of the required improvements following completion, the Township 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 plat, 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 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 Part.

If financial security has been provided in lieu of the final completion of improvements required as a condition for the final approval of a plat as set forth in this section, the Township 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 final plat upon actual completion of the improvements depicted upon the approved final plat. 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 plat, 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. Any ordinance or statute inconsistent herewith is hereby expressly repealed.

Release from Improvement Bond. 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 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 reasons for such nonapproval or rejection.

The Township 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 Township with relation thereto.

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 guarantee bond or other security agreement.

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.

Nothing herein, however, shall be constructed in limitation of the developer's right to contest or question, by legal proceeding or otherwise, any determination of the Township or the Township Engineer.

Where herein reference is made to the Township Engineer, he shall be as a consultant thereto.

The applicant shall reimburse the Township for expenses incurred for the inspection of improvements. Such reimbursement shall be in accordance with the Sugarloaf Township Subdivision and Land Development Fee Schedule which is in effect at the time the inspection(s) is performed.

Remedies to Effect Completion of Improvements. In the event that any improvements which may be required have not been installed as provided by this chapter or in accordance with the approved final plat, the Township may enforce any corporate bond or other security by appropriate legal or 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 Township purpose.