A.
No plan shall be finally approved unless the streets shown on such plan have been improved to a mud-free or otherwise permanently passable condition, or improved as may be required by this chapter, and any walkways, curbs, gutters, street lights, fire hydrants, shade trees, water mains, sanitary sewers, storm sewers and other improvements as required by this chapter have been installed in accordance with such ordinance. In lieu of the completion of any improvements required as a condition for the final approval of a plan, including improvements or fees required pursuant to § 208-67I, the developer shall provide for the 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, storm water detention and/or retention basins and other related drainage facilities, recreational facilities, open space improvements, or buffer or screen plantings which may be required. 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]
[Amended 11-10-2009 by Ord. No. 2009-3]
[1]
Editor's Note: See 36 P.S. § 670-101 et seq.
B.
When requested by the developer, in order to facilitate
financing, the Board of Township Supervisors shall furnish the developer
with a signed copy of a resolution indicating approval of the final
plan contingent upon the developer obtaining a satisfactory financial
security. The final plan 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 Board of Township
Supervisors; such extension shall not be unreasonably withheld and
shall be placed in writing at the request of the developer.
C.
Without limitation as to other types of financial
security which the Township may approve, which approval shall not
be unreasonably withheld, federal or commonwealth chartered lending
institution irrevocable letters of credit and restrictive or escrow
accounts in such lending institutions shall be deemed acceptable financial
security for the purposes of this section.
(1)
The following forms of guarantee shall be acceptable
to the Board of Supervisors, which shall not unreasonably withhold
its approval of a guarantee:
(a)
Surety performance bond. A security bond from
a surety bonding company authorized to do business in the Commonwealth
of Pennsylvania. The bond shall be payable to East Manchester Township.
(b)
Escrow account.
[1]
A deposit of cash either with the Township or
in an escrow or restrictive account with a federal or commonwealth
chartered lending institution.
[2]
In the case of an escrow or restrictive account,
the developer shall file with the Board of Supervisors an agreement
between the lending institution and himself guaranteeing the following:
[a]
That the funds of said account
shall be held in trust until released by the Board of Supervisors
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 in said account available to the
Township for use in the completion of those improvements.
(c)
Letter of credit. An irrevocable letter of credit
provided by the developer from a federal or commonwealth chartered
lending institution. This letter shall be deposited with East Manchester
Township and shall certify the following:
[1]
That the creditor does guarantee funds in an
amount equal to the cost of completing all required improvements.
[2]
In case of failure on the part of the developer to complete the specified
improvements within the required time period, the creditor shall pay
to East Manchester Township immediately, and without further action,
such funds as are necessary to finance the completion of those improvements,
up to the limit of credit stated in the letter.
[3]
The letter of credit may not be withdrawn, or reduced in amount,
until released by the Board of Supervisors.
D.
Such 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 lending institution is authorized to conduct such business
within the commonwealth.
E.
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.
F.
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 financial security by comparing the actual
cost of the improvements which have been completed and the estimated
cost for 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 Township may require the developer to post additional security
in order to assure that the financial security equals but does not
exceed said 110%. Any additional security shall be posted by the developer
in accordance with this subsection.
[Amended 11-10-2009 by Ord. No. 2009-3; 4-12-2022 by Ord. No. 2022-2]
G.
The amount of financial security 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 by the Commonwealth of Pennsylvania. The
engineer shall certify the amount of security to be a fair and reasonable
estimate of such cost. The Board of Township Supervisors, 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 the 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 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.
H.
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 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.
[Amended 11-10-2009 by Ord. No. 2009-3; 4-12-2022 by Ord. No. 2022-2]
I.
In the case where development is projected over a
period of years, the Board of Township Supervisors may authorize submission
of final plan 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.
J.
As the work of installing the required improvements
proceeds, the party posting the financial security may request the
Board of Township Supervisors 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 requests shall be in writing addressed to the Board of Township
Supervisors, and the Board of Township Supervisors shall have 45 days
from receipt of such request within which to allow the Township Engineer
to certify, in writing, to the Board of Township Supervisors that
such portion of the work upon the improvements has been completed
in accordance with the approved plan. Upon receipt of such certification
the Board of Township Supervisors 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 Board of Township Supervisors fails to act within said
forty-five-day period, the Board of Township Supervisors shall be
deemed to have approved the release of funds as requested. The Board
of Township Supervisors may, prior to release at the time of completion
and certification by its engineer, retain 10% of the estimated cost
of the remaining improvements.
[Amended 12-9-2014 by Ord. No. 2014-6; 4-12-2022 by Ord. No. 2022-2]
K.
Where the Board of Township Supervisors accepts dedication of all
or some of the requirements following completion, the Board of Township
Supervisors shall require the posting of financial security to secure
structural integrity of said dedicated improvements as well as the
functioning of said dedicated 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.
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 dedicated improvements.
[Amended 12-9-2014 by Ord. No. 2014-6]
L.
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.
M.
If financial security has been provided in lieu of
the completion of improvements required as a condition for the final
approval of a plan 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 plan upon actual
completion of the improvements depicted upon the approved final plan.
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 plan, 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.
The Board of Township Supervisors shall authorize
and direct the Township Engineer to cooperate with the applicant in
arranging for the Engineer's periodic presence at the site of the
work and construction of the required facilities and improvements
during such phases thereof as in the judgment of the Engineer will
enable him/her to determine whether or not such construction is in
general conformity with the final plan and all Township requirements.
A.
Notice shall be given to the Township at least 48
hours in advance of commencement of any construction operation to
provide for required inspection.
B.
No underground pipes, structures, subgrades, binders
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.
C.
In those cases where the Township Engineer deems necessary,
the developer, through his contractor, shall retain the services of
a certified soils engineer to perform moisture and density testing
in order to determine compaction or the extent thereof as related
to the requirements of such Township construction and materials specifications
as have been or may be adopted by the Board of Township Supervisors.
D.
The wearing course on all streets proposed to be dedicated
to the Township shall not be placed until at least 75% of the lots
within the development have been built upon, or upon the expressed
desire of the Board of Township Supervisors.
E.
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 perform any work in
violation of such stop order, except as may be necessary to prevent
injury or damage to person or property. Such stop order may be revoked
by the Board of Township Supervisors.
F.
Whether or not such construction or work shall have
been accomplished in accordance with Township requirements shall be
determined by the Township Engineer upon the basis of his on-site
inspections during such phases thereof as in his judgment will enable
him/her to make such determination. The Engineer shall submit a written
report to the Board of Township Supervisors in regard thereto.
A.
After final plan approval and upon the completion
of all required improvements, the applicant shall submit an as-built
plan prepared by a professional engineer or professional land surveyor.
Said plan shall indicate that the constructed improvements are in
conformance with the previously approved drawings and specifications.
Said plan shall also note any and all deviations from the previously
approved drawings and specifications. One reproducible and two copies
of the as-built plan shall be filed with the Township.
B.
The as-built plan shall be drawn to the same scale
as the final plan, certified to by the designer of the plan, and approved
by the Township Engineer. Said plan shall indicate the actual location,
dimensions and/or elevations of all completed improvements, including
but not limited to:
(1)
Concrete monuments.
(2)
The edge of the cartway and top of the curb for both
sides of each street.
(3)
Sanitary sewer mains, manholes and laterals.
(4)
Storm sewers, inlets and culverts.
(5)
Water mains and fire hydrants.
(6)
Street lights.
(7)
Landscaping and screen planting.
(8)
Permanent sedimentation, erosion control and stormwater
management structures.
(9)
All easements.
When the developer has completed all of the
required and necessary improvements and submitted the required as-built
plan, 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.
A.
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 required improvements.
B.
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 authorization for inspection by the
Board of Township Supervisors.
C.
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, shall not be approved
or shall be rejected by the Township Engineer, said report shall contain
a statement of reason for nonapproval or rejection.
D.
The Board of Township Supervisors shall notify the
developer, within 15 days of receipt of the Township Engineer's report,
in writing, by certified mail or registered mail, of the action of
the Board with relation thereto.
E.
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 of all liability, pursuant to its
performance guaranty bond or other security agreement.
F.
If any portion of the said improvement shall not be
approved or shall be rejected by the Board of Township Supervisors,
the developer shall proceed to complete the same, and upon completion,
the same procedure of notification as listed above shall be followed.
G.
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 Township Supervisors
or the Township Engineer.
H.
For purposes of this section, improvements shall not be considered to be completed until all improvements have been made, and, in the case of streets dedicated as public streets, until the street is adopted by the Township, unless the Board of Supervisors by written agreement with the subdivider or developer waives this requirement, in which case the written agreement shall specify the terms of the waiver, subject to § 208-54 of this chapter.
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 Board of Township
Supervisors shall have the power to 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 Board of Township Supervisors 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.
[Amended 11-10-2009 by Ord. No. 2009-3]
The Board of Township Supervisors shall prescribe
that the applicant shall reimburse the Township for the reasonable
and necessary expense incurred for the inspection of improvements.
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 reimbursement shall be based upon a schedule adopted by resolution
of the Board of Township Supervisors upon enactment of this chapter,
or as such schedule may be amended. A copy of said fee schedule shall
be available for review at the Township office. Such expense shall
be reasonable and in accordance with the ordinary and customary fees
charged by the Township Engineer or consultants 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 for comparable services when fees are not reimbursed or otherwise
imposed on applicants.
[Amended 11-10-2009 by Ord. No. 2009-3]
A.
The Board of Township Supervisors shall submit to the applicant an
itemized bill showing 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 event 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, pay the
undisputed amount and notify the Township and the Township's professional
consultant that such expenses are disputed as unreasonable or unnecessary
and shall explain the basis of their objections to the fees charge,
in which case the Township shall not delay or disapprove a request
for a 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.
[Amended 12-9-2014 by Ord. No. 2014-6]
B.
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
Township Supervisors a bill for inspection services, specifically
designated as a final bill, which the governing body shall submit
to the applicant. The final bill shall include inspection fees incurred
through the release of financial security.
[Amended 12-9-2014 by Ord. No. 2014-6]
C.
If the professional consultant and the applicant cannot
agree on the amount of expenses which are reasonable and necessary,
then the applicant and the Township shall follow the procedure for
dispute resolution as set forth below:
(1)
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 that 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.
[Amended 12-9-2014 by Ord. No. 2014-6]
(2)
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 event the Township has
paid the professional consultant an amount in the excess of the amount
determined to be reasonable and necessary, the professional consultant
shall within 60 days reimburse the excess payment.
(3)
In the event that the Township’s professional
consultant and the 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.
(4)
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.
[Amended 12-9-2014 by Ord. No. 2014-6]
(5)
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:
[Added 12-9-2014 by Ord. No. 2014-6]
(6)
A municipality or an applicant shall have 100 days after paying a
fee to dispute any fee charged as being unreasonable or excessive.
[Added 12-9-2014 by Ord. No. 2014-6]
The Board of Supervisors may, at its discretion,
require the applicant to submit a maintenance guarantee or other approved
performance guarantee in order to guarantee the structural integrity
and proper functioning of improvements.
A.
If improvements are to be subject to a maintenance
guarantee in accordance with this section, the applicant shall be
advised of the requirement at the preliminary plan stage.
B.
Financial security shall not exceed 15% of the installation costs and shall be in one of the forms permitted by § 208-67 of this chapter.
C.
The term of a maintenance guarantee shall not exceed
18 months from the date of acceptance of dedication.
