Township of Coolbaugh, PA Article V Improvements and Open Land

§ 355-33 General.

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 Supervisors for recording in the office of the Monroe County Recorder of Deeds until:

(1) Installed. All improvements required by this chapter are installed to the specifications contained in Article VI of this chapter and other Township requirements and such improvements are certified by the Township Engineer; or

(2) Guaranteed. A proposed development agreement and a performance guarantee in accord with § 355-36 and the Pennsylvania Municipalities Planning Code, Act 247 of 1968. as amended,[1] has been accepted by the Board of Supervisors.

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

C. Any approval granted by the Board of Supervisors 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.

§ 355-34 PennDOT required improvements.

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.

§ 355-35 Sections/stages.

In cases where final plan approval is proposed in sections or stages, the Board of Supervisors 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.

§ 355-36 Performance guarantees.

A. Acceptable guarantees. The following are acceptable forms of performance guarantees:

(1) Escrow account. A deposit of cash either with the Board of Supervisors 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 Supervisors.

(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 Supervisors.

(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 Supervisors 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 Subsection A:

(a) The funds of any guarantee 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 available to the Board of Supervisors 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 Supervisors.

(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 Subsection B.

(d) The performance guarantee shall not be withdrawn, or reduced in amount, until released by the Board of Supervisors.

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 Supervisors 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 Supervisors 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 section.

(1) Amount. 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 Supervisors, upon the recommendation of the Township Engineer, may refuse to accept such estimate for good cause shown. If the applicant and the Board of Supervisors 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 Supervisors 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 Supervisors and the applicant or developer.

(2) Annual increase. 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 Subsection B.

(3) Prevailing wage. 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 Supervisors 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 Supervisors 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 Supervisors 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 Supervisors shall direct the Township Engineer to inspect the subject improvements and certify in writing to the Board of Supervisors the completion in accord with the approved plans and Township standards, and the Board of Supervisors 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 Supervisors fails to act within said forty-five-day period, the Board of Supervisors shall be deemed to have approved the release of funds as requested. The Board of Supervisors 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 Supervisors.

(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 Supervisors 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 Supervisors, 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 Supervisors shall act upon said report and shall notify the developer in writing by certified or registered mail of their action. If the Board of 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 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 Supervisors, the developer shall proceed to rectify and/or complete the same and, upon completion, the same procedure of notification, as outlined in this Subsection D, 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 Supervisors 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 Supervisors 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 Township purposes except for reimbursement of Township court costs, reasonable attorney fees and other costs of enforcement.

(g) As-built plans. The final release of the performance guarantee shall not be made by the Board of Supervisors until as-built plans are submitted for all improvements in accord with § 355-16L or §§ 355-18R and 355-32.

§ 355-37 Improvements construction.

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 and conform to current information and inspection requirements adopted by the Township.

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 Board of Supervisors 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 Township Engineer shall prepare a Township Inspection Schedule to ensure the construction of the required improvements in accord with the approved plan and Township standards. In addition to all final inspections required for all improvements, inspections shall be required at all phases of construction when a failure to inspect would result in a physical impossibility to verify compliance at the time of the final inspection (e.g., backfilling of sewer or water line trenches). This may require a full-time inspector and may include, but not be limited to, such tests as pressure testing of conveyance lines or vacuum testing.

D. Notice. The developer shall provide a minimum of five working days' notice prior to the time when construction will have proceeded to the time of an inspection required by the Township Inspection Schedule.

E. Cost. The cost of all inspections conducted by the Township shall be borne by the developer. The scale of the development may require full-time inspection by the Township at the applicant's expense.

§ 355-38 Improvement construction maintenance guarantee.

Before final approval is granted, the developer shall provide to the Board of Supervisors an improvement construction maintenance guarantee in an amount determined by the Board of Supervisors 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 § 355-36A and shall guarantee that the developer shall maintain all improvements in good condition during the 18 months after the completion of construction or installation and final approval of all improvements. If the developer is negligent or fails to maintain all improvements in good condition during the eighteen-month period, the Board of Supervisors 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 Supervisors, 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 final approval of the subject improvements and if all improvements are certified by the Township Engineer to be in good condition, the Board of Supervisors shall release said maintenance guarantee and surety to the developer or party posting said maintenance guarantee and surety.

§ 355-39 Continued ownership and maintenance of improvements.

(Note: See § 355-40 for open space and recreation land ownership and maintenance.) The developer shall provide, to the satisfaction of the Board of Supervisors 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.

A. 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 Supervisors, 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 other successors in ownership and include a requirement that such funds will be dedicated to the intended use.

B. 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) to assume the ultimate ownership of all development improvements and responsibility for maintenance of such improvements. (Note: See § 355-40D for open space and recreation land ownership and maintenance.) Membership in the POA shall be mandatory for all property owners in the development. The developer shall also be a member of the POA and shall remain responsible for payment of any per lot dues or fees assessed by the POA which are associated with improvements serving said lots. The deed covenants and restrictions creating the POA shall be subject to the approval of the Board of Supervisors. The establishment of the association shall conform to the Pennsylvania Uniform Planned Community Act, Act No. 1996-180.[1]

[1] Editor's Note: See 68 Pa.C.S.A. § 5101 et seq.

(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 § 355-36A 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 Supervisors. 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 Supervisors.

(4) Failure to maintain. The POA 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.

C. 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 Supervisors to accept the same. Acceptance of a proposed dedication shall be a matter of discretion for the Board of Supervisors. If determined by the Board to be in the interest of the public health, safety and general welfare, the Board of Supervisors 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 Supervisors 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 Supervisors may attach such reasonable conditions as it deems necessary to fulfill the purposes of this chapter.

§ 355-40 Open space and recreation land; ownership and maintenance.

This section 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 Supervisors (referred to as "common open space") as required by this chapter.

A. Purpose. The requirements of this section 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 Supervisors with the recommendation of the Township Solicitor. The provisions of the approved plan shall be incorporated into a development agreement with the Board of Supervisors, deed covenants and restrictions, or other legal document which will effect the plan and which can be enforced by the Board of Supervisors.

(1) Ownership. 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) Operation and maintenance responsibilities. The plan shall establish necessary regular and periodic operation and maintenance responsibilities for the various kinds of open space (i.e., lawns, playing fields, meadow, pasture, crop land, woodlands, etc.).

(3) Operation and maintenance funding; capital improvements. 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) Financial guarantee. The Board of Supervisors may require the applicant to provide a financial guarantee for the maintenance and operation costs of common facilities for up to 18 months.

(5) Changes. Any changes to the maintenance plan must first be approved by the Board of Supervisors.

C. 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.

D. 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 Supervisors agrees to a proposal to transfer to any of the following: North Pocono 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 Supervisors.

(2) Dedication. The Board of Supervisors 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 Supervisors. 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 Supervisors 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.

E. Methods for use dedication and common open space ownership and maintenance.

(1) Developer responsibility. 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 Supervisors 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.

(2) Township authority. All methods shall establish a mechanism for the Board of Supervisors 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.

(3) Methods. 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 Supervisors. 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.

(a) 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 § 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.

[1] 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.

[2] Participation in the POA/CA is mandatory for all lot/unit owners.

[3] 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.

[4] 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.

[5] 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 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).

(b) Transfer to a private conservation organization. In the case of open space and recreation land, the developer may transfer fee simple title to said areas, or parts thereof, to a private, nonprofit organization among whose purposes is the conservation of open land and/or natural resources, provided that:

[1] 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.

[2] The organization proposed is a bona fide, operating and stable conservation organization with a perpetual existence, acceptable to the Board of Supervisors.

[3] 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.

[4] A maintenance agreement is entered into among the developer, the organization and the Township, in form and substance acceptable to the Board of Supervisors.

(c) Deed-restricted (non-common) 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.

(d) Deed or deeds of trust. The landowner may provide, as approved by the Board of Supervisors, 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.

(e) Conservation easements held by the Township. In the case of open space and recreation lands, the Board of Supervisors 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.

(f) Fee simple and/or easement dedication to the Township. In the case of open space or recreation lands, the Board of Supervisors 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:

[1] There is no consideration paid by the Township.

[2] Such land is freely accessible to the public.

[3] The Board of Supervisors agrees to and has access to maintain such lands.

§ 355-41 Failure to preserve use and operation and maintenance of improvements or common open space.

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 Supervisors shall have the right and authority, but shall not be obligated, to take all necessary legal action to effect such use dedication, operation and maintenance. The action of the Board of Supervisors shall be in accord with the following:

A. Notice. The Board of Supervisors 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 Supervisors 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 Supervisors may enter upon the common open space and maintain the same and/or correct the deficiencies. The Board of Supervisors 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 Supervisors 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.

F. Appeal. Any party to the action of the Board of Supervisors may appeal such action to court as provided for in the Pennsylvania Municipalities Planning Code, as amended.[1]

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

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.

§ 355-42 Subdivision and/or land development improvements agreement.

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 Supervisors, and if so directed by the Board of Supervisors, 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 Supervisors. It shall provide for all matters determined necessary by the Board of Supervisors 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 Supervisors 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 Supervisors 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 said policy or other evidence of coverage shall be submitted to the Board of Supervisors.

(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 part.

(18) Provisions for any additional agreements deemed necessary.

B. Execution. The final plan shall not be unconditionally approved by the Board of Supervisors prior to the execution of this agreement, if so required by the Board of Supervisors.