Township of Lower Allen, PA Article VIII Improvements Guaranties

§ 192-44 Guarantee of improvements installation required.

A. Before approving any subdivision or land development plan for recording, the Board of Commissioners shall require that the Township be assured by means of a proper development agreement and performance guarantee that the improvements required by this chapter and the improvements appearing on the plan will be installed in strict accordance with the standards and specifications of this chapter, unless a developer chooses to install all required improvements prior to construction of any building in place of using performance guaranties. In that case, the Township shall, as deemed necessary, require the developer to have adequate insurance, hold harmless agreements, an escrow account to cover the costs of inspections and a professional estimate of the costs of the improvements to be used to establish the amount of the inspections escrow.

B. Purpose of security. The security required by this article shall stand as security for compliance with all Township ordinances, other laws, covenants, stipulations, conditions and rules applicable to the subdivision or land development for which it is filed.

C. No construction of permanent buildings or sales of any individual lot or condominium unit shall occur within a subdivision or land development unless:

(1) There is,on file with the Townshi, current duly executed and approved security; or

(2) All required public improvements, utilities, streets, drainage facilities, sewers and streetlights have been completed and accepted by the Board of Commissioners.

§ 192-45 Improvements to be provided by applicant.

A. In all cases, the subdivider or land developer shall be responsible for the installation of all improvements required by this chapter, including utilities.

B. The Township Engineer or other Township designee shall make such inspections of the required improvements, including utilities, at such intervals as may be reasonably necessary to assure compliance with this chapter. The reasonable costs of such inspection shall be borne by the subdivider or land developer, making use of an escrow account.

§ 192-46 Development agreement.

A. Development agreement required.

(1) All applicants proposing any subdivision or land development which provides for the installation of improvements required by this chapter or any improvements or amenities which appear on the final plan shall be required to enter into a legally binding development agreement with the Township prior to recording of the final plan, unless the applicant agrees to meet the requirements of § 192-44 concerning the construction of all improvements prior to the construction of any buildings or the sale of any lots or homesites.

(2) The development agreement shall guarantee the installation of said improvements in strict accordance with all Township requirements.

B. Terms of development agreement. The development agreement shall be acceptable in legal form to the Township Solicitor and shall be acceptable in content to the Township Board of Commissioners. The Township may require that a development agreement include any of the following items, where applicable, and such additional items as are necessary to carry out this chapter:

(1) The construction depicted on the approved plans, listed in itemized format, including all approved streets, drainage facilities, utility lines and other improvements.

(2) A work schedule setting forth the beginning and ending dates of such work tied to the construction of the development and provisions to allow proper inspection by the Township Engineer.

(3) The provision of a performance guaranty for completion of required improvements in compliance with § 192-47, including a detailed breakdown of the estimated costs of the improvements; including the total amount of the performance guaranty.

(4) Provisions concerning the developer's responsibilities for damage to other property, including maintenance by the developer of public liability insurance for the duration of improvements construction, with a hold harmless clause to protect the Township from liability related to such work. A copy or other evidence of such liability coverage shall be provided to the Township prior to such work.

(5) Provisions requiring that the applicant and/or other responsible entities ensure that erosion and sediment pollution control plans and stormwater management plans are implemented and maintained.

(6) Provisions for the dedication of streets, water and sewer lines and any other rights-of-way or improvements proposed to be dedicated.

(7) See § 192-52, concerning the requirement for a record plan.

(8) Provisions for the developer to reimburse the Township for all reasonable engineering costs directly related to the review, construction and inspection of the proposed development and to the review and preparation of the development agreements.

(9) Provisions concerning any violations of the development agreement.

(10) Any other lawful terms which the Board of Commissioners may require to carry out the provisions of this chapter.

(11) Signatures. The development agreement shall be signed by all responsible landowners and/or developers.

C. Ownership of land and guaranty.

(1) A certificate of ownership shall be executed in the exact name in which title is held. If the developer(s) is someone other than the landowner(s), the developer shall also execute this affidavit, along with a security agreement.

(2) Change in ownership or developer. Any conveyance of all or a portion of the unimproved lots or public improvements or streets of any subdivision or land development or change in developers, whether voluntary or by action of law or otherwise, shall require the prior approval of the Board of Commissioners. In giving or denying said approval, the Board of Commissioners shall require that such new landowner and/or developer fully assume all applicable responsibilities under the development agreement and post all the appropriate security agreements.

D. Utility agreements. If a development will connect into a public water or public sanitary sewage system, the applicable authority, agency or company may also require separate development agreements.

§ 192-47 Performance guaranty.

The performance guaranty for completion of required improvements shall meet the following requirements:

A. Security.

(1) The guaranty shall be secured by the credit of any of the following:

(a) An irrevocable and unconditional letter of credit of a federal or state chartered lending institution;

(b) A restrictive or escrow account in a federal or state chartered lending institution; or

(c) Such other financial security approved by the Board of Commissioners, but not including a second or third mortgage on the unimproved lands.

(2) Such approved security shall provide for, and secure to the public, the completion of any improvements which may be required by the date fixed in the development agreement for the completion of such improvements.

(3) Such financial security shall be posted with a federally issued or state chartered lending institution chosen by the party posting the financial security, or such other approved entity, provided such institution or entity is authorized to conduct such business within the state.

(a) The Board of Commissioners may require that evidence be provided that such institution or entity has sufficiently adequate and secure assets to cover the security.

(b) The Township shall be the authorized signatory on any account in which the escrow funds are held.

B. Amount of security.

(1) 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 in the official development schedule and within the process for increases to cover inflation as permitted by the Pennsylvania Municipalities Planning Code.[1]

[1] Editor's Note: See 53 P.S. § 10101 et seq.

(2) The cost of the improvements shall be established by an estimate prepared by a Pennsylvania-registered professional engineer, which shall be reviewed by the Township Engineer, within the arbitration process permitted by the Pennsylvania Municipalities Planning Code.

(3) 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 a maximum of 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.

(4) Inspection fees. The amount of financial security shall also include an additional 5% of the estimated cost of completion of the work to guarantee payment of inspection fees and related engineering costs. The funds needed for inspection of the improvements by the Township or the Township's representatives shall be funded in advance by the applicant through an escrow account. See § 192-8 of this chapter.

C. Multiyear or multistage development. In the case where development is projected over a period of years, the Board of Commissioners may authorize submission of final plans by phases/stages of development, subject to such requirements or improvement guaranties concerning future improvements as it finds necessary for the proper functioning of each phase and for the eventual development as a whole.

§ 192-48 Approval of improvements, including utilities.

A. Advance notice by developer of construction of improvements.

(1) Meetings. Prior to construction or installation of improvements in any new phase or any facet of construction, the developer or his/her representative shall contact the Township Engineer to determine whether a preconstruction meeting is needed. The Township Engineer may require that such meeting be attended by the responsible contractor(s) and responsible representatives of the developer. In addition, meetings may be required with the utility companies as needed.

(2) The developer or his/her representative shall provide a minimum of three business days' prior notice to the Township Engineer or his/her designee (such as an inspector) prior to beginning each facet of construction, in order to allow the scheduling of inspections. See also § 192-63A(2)(e) which requires five business days' advance notice for street construction.

(3) See § 192-49A(1)(b) concerning improvements completed without proper Township inspection.

B. Request for release of security. When an improvement has been completed, the party posting the financial security shall notify the Township Engineer and submit a written request to the Board of Commissioners to release related financial security.

C. Engineer's report.

(1) Within 30 days of a receipt under § 192-48B the Township Engineer shall submit a written report certifying which improvements have been completed in accordance with the approved plan to the Board of Commissioners and send a copy of such report to the developer or his/her representative at his/her last known address.

(2) This report shall be based on the inspections made according to the approved inspection schedule included in the development agreement and shall recommend approval or rejection of the improvements, either in whole or in part.

(3) If the Township Engineer finds any or all of the improvements to be not as required, he/she shall include a statement of the reasons for recommending their rejection in the report.

D. Decision by Board of Commissioners.

(1) At its first regularly scheduled meeting after receiving the Engineer's report, but not later than 45 days of the receipt of the request, the Board of Commissioners shall review the Township Engineer's report and shall authorize release of an amount as estimated by the Township Engineer fairly representing the value of the improvements completed.

(2) The Board of Commissioners shall be deemed to have approved the release of funds as requested if the Board of Commissioners fails to act within 45 days of receipt of the developer's request.

(3) Until final release (completion of all improvements), the Board of Commissioners may require retention of a maximum of 10% of the cost of each completed improvement.

(4) The Board of Commissioners shall notify the developer, in writing, of the decision.

E. Completion of unaccepted improvements. The developer shall complete any required improvements that the Board of Commissioners determines are not satisfactory or complete. Upon completion, the applicant may request approval in conformance with the procedures specified in § 192-48.

F. Final release.

(1) When the developer has completed all of the required and necessary improvements, the developer shall request final release in conformance with the procedures specified in § 192-48. See time limitations and procedures in Section 510 of the Pennsylvania Municipalities Planning Code.[1]

[1] Editor's Note: See 53 P.S. § 10510.

(2) Such final release shall include all moneys retained under § 192-48D(3).

(3) If the approved plan includes improvements to be dedicated to the Township, then all documentation and procedures necessary to finalize the dedication must be completed by the developer before final release.

(4) If the approved plan includes utility or other facilities within rights-of-way that are to be dedicated to the Township, and occupancy or other permits are required for such facilities within Township rights-of-way as provided for in this chapter or other Township ordinances, then those permits must be obtained before final release.

G. Appeal. Nothing herein shall be construed to limit the developer's right to contest or question by legal proceedings or otherwise any determination of the Board of Commissioners or the Township Engineer.

H. Certificates of occupancy and completion of improvements.

(1) A temporary or final certificate of occupancy shall not be issued and a structure shall not be occupied unless said structure has access to a street with at least a complete paving base course and any required curbing installed.

(2) In addition to Subsection H(1) above, no final certificate of occupancy shall be issued until the structure is completed as approved with service by all required utilities and with all access onto a street completed to required standards and all required fire hydrants are fully operational, if applicable.

§ 192-49 Remedies to effect completion of improvements.

A. Enforcement of security.

(1) In the event that any improvements that were required have not been installed as provided in this chapter or the approved final plan or the development agreement, or in the event of the bankruptcy of the owner or developer, or in the event the performance security lapses or will lapse in time before the required improvements are completed, then the Board of Commissioners is hereby granted the power to elect to enforce any security posted under this chapter by appropriate legal and equitable remedies.

(a) Such remedies may include taking all actions necessary to ensure improvements are completed without cost to the Township, including but not limited to:

[1] Seizure of undeveloped lots;

[2] Seizure of escrow funds;

[3] Revocation or suspension of building permits or suspension of issuance of new building permits;

[4] Nonrelease of performance securities;

[5] Nonapproval of occupancy certificates;

[6] Request for additional performance security;

[7] Nonacceptance of improvements;

[8] Removal, reconstruction or replacement of substandard improvements at the cost of the developer; and

[9] Civil prosecution of a violation of this chapter.

(b) Construction without inspection. If required improvements have been completed without providing the Township Engineer or his/her representatives with proper opportunity for inspection, and as a result the Township Engineer cannot determine whether the improvements were properly constructed, then the Board of Commissioners may require that the developer, at the developer's expense, remove, replace, sample, test or reconstruct such improvements as necessary to determine compliance with this chapter and other applicable Township standards.

(2) Rate of construction. Failure of a developer to construct streets and other public improvements reasonably at the same time or prior to the construction of the buildings served by those streets or public improvements, and at the same rate in time at which buildings are completed, shall be a violation of this chapter and a cause for default of the security.

B. Completion by Township. If the proceeds of such 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 Commissioners may, at its option, install or replace 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.

C. Proceeds for installation of improvements. The proceeds from use of the security and/or from any legal or equitable action brought against the developer shall be used solely for the installation of the improvements covered by such security and directly related administrative costs.

§ 192-50 Maintenance guaranty.

A. Maintenance guaranty required. All applicants proposing any subdivision or land development which provides for dedication of improvements shall be required to provide a legally binding maintenance guaranty to the Township prior to acceptance of dedication of the improvements by the Township. This guaranty may be part of the security agreement. The Township may also require a developer to provide a maintenance guaranty for required improvements that are not dedicated to the Township that are necessary for the proper functioning of the development.

B. Terms of maintenance guaranty. The maintenance guaranty shall be acceptable in legal form to the Township Solicitor and in content to the Board of Commissioners and shall include all of the following:

(1) That the applicant make any repair or reconstruction of any improvement stipulated in the maintenance agreement which is specified by the Board of Commissioners, if needed because of faulty construction, workmanship or materials that occurred prior to acceptance of such improvement by the Township;

(2) That the applicant guarantee at his/her own cost the proper operation of the improvements stipulated in the maintenance agreement, up to a maximum period of 18 months from the date of dedication; and

(3) That the applicant post 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 plan, for a maximum term of 18 months from the date of completion.

C. Public utilities and authorities. If water mains or sanitary sewer lines, or other utility facilities and related apparatus or facilities, are to be installed under the jurisdiction and under the rules and regulations of a public utility or municipal authority, 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. This amount of financial security shall not also be required by the Township if it is required by such utility or authority.

D. Type of security. The maintenance guaranty shall be secured by the same form of security as is permitted for the improvements guaranties.

E. Terms. Such maintenance guaranty shall be in the form approved by the Township Solicitor and Board of Commissioners, payable to the Township, to guarantee the proper operation and repair of the streets and other dedicated improvements in the subdivision or land development for 18 months from the date of completion.

F. Amount. The amount of the maintenance guaranty shall be 15% of the actual cost of installation of such improvements.

G. Release.

(1) Eighteen months after the date of acceptance of dedication of said improvements, the Township shall release the maintenance guaranty to the developer (or party that posted the guaranty if all improvements are in satisfactory condition, as determined by the Township Engineer).

(2) If said improvements are not in satisfactory condition, the maintenance guaranty shall be extended until such time as improvements are in a satisfactory condition, as determined by the Township Engineer.