Township of Lower Mount Bethel, PA Part 6 IMPROVEMENT GUARANTEES AND ACCEPTANCE

§ 22-600 Construction of Improvements.

[Ord. 2013-11, 9/9/2013]

1. The applicant shall construct and be responsible for (at no cost to the Township) all roads, streets, lanes or alleys, together with all other improvements, including grading, paving, curbs, gutters, sidewalks, trails, streetlights, fire hydrants, water mains, street signs, shade trees, stormwater management facilities, sanitary sewers, landscaping, traffic control devices, open space and recreation areas, and erosion and sediment control measures in conformance with the final plan as approved, the applicable specifications and regulations of the Township, PennDOT and PADEP, and any other applicable regulations.

2. No occupancy permits for any building or buildings to be erected shall be issued by the Township Building Code Official until the Township Engineer provides written documentation that:

A. The roads, streets, or lanes providing access to and from existing public roads to such building or buildings have been improved to a mud-free, permanently passable condition; and

B. That all other improvements depicted on the approved final plan, either upon the lot or lots or beyond the lot or lots in question and necessary for the reasonable use of or occupancy of any such building or buildings, have been completed.

§ 22-601 Improvement Guarantee Requirements and Agreements.

[Ord. 2013-11, 9/9/2013]

1. Before the Board of Supervisors shall approve final plans of any subdivision or land development and, as a requirement for approval thereof, the applicant and developer shall either complete the improvements as required by Section 509(a) of the MPC[1] or enter into a written agreement or agreements in the manner and form set forth by the Township, to guarantee the construction, installation and maintenance of all improvements required by this chapter at the applicant's expense. The agreement(s) shall specify the following, where applicable:

A. That the applicant agrees that it will lay out, construct and maintain, at its expense, all roads, streets, lanes or alleys, together with all other improvements, including grading, paving, curbs, gutters, sidewalks, trails, streetlights, fire hydrants, water mains, street signs, shade trees, stormwater management facilities, sanitary sewers, landscaping, traffic control devices, open space and recreation areas, and erosion and sediment control measures in conformance with the final plan as approved, the applicable specifications and regulations of the Township, PennDOT and PADEP, and any other applicable regulations, and that it shall complete these improvements within the time or times specified by the Board of Supervisors;

B. That the applicant guarantees completion of all public improvements by posting security in the form permitted by the MPC and in an amount established pursuant to Subsection 3 herein;

C. That the applicant agrees to tender a deed or deeds of dedication to the Township for such street easements and for easements for sanitary and storm sewers (including pipes, detention basins and swales), sidewalks, trails, manholes, inlets, pumping stations, and other appurtenances as shall be constructed as public improvements provided that the Township shall not accept dedication of such improvements until the Township Engineer provides written documentation that such improvements have been satisfactorily completed and satisfactorily maintained by the applicant for the duration of the maintenance period required by the MPC. All streets, easements and other public improvements offered for dedication shall be accompanied by a metes and bounds description and plot plan prepared by the applicant. The applicant shall also provide a deed or deeds of dedication to the Township to permit access to privately owned and maintained improvements to permit the Township to undertake maintenance of such improvements (without any obligation on behalf of the Township to do so) should the applicant or responsible party fail to adequately maintain such improvements. The Board of Supervisors shall not accept any deed of dedication until the opinion of record title or title insurance policy required by § 22-304, Subsection 4E(3)(c), is provided and accepted by the Township.

D. That the applicant agrees to establish a covenant that runs with the land addressing the perpetual maintenance responsibilities of stormwater management BMPs per PADEP Title 25, Chapter, 102 Section 102.8(m), as amended from time to time, and providing for access easements to allow the Township to inspect and monitor the maintenance of stormwater management BMPs. The covenant shall be in a form prepared by the Township Solicitor. The Board of Supervisors shall not accept the covenant until the opinion of record title or title insurance policy required by § 22-304, Subsection 4E(3)(c), is provided and accepted by the Township.

E. That the applicant agrees to correct, remedy, repair, refurbish, reconstruct, reinstall, maintain, replace and perform such maintenance to the improvements as may be necessary, in the sole and absolute discretion of the Township based on the condition of the improvements which may arise or exist during the maintenance period described in Subsection 7. The applicant shall post with the Township security in the amount described in Subsection 7 for the entire maintenance period prior to the release of any remaining balance of the security posted to guarantee the installation/completion of the improvements.

F. That the applicant shall exonerate, indemnify, defend (through legal counsel of the Township's choice) and hold harmless the Township and the Township representatives of and from each and every claim arising out of, resulting from, caused by or relating to:

(1) Any failure of the applicant to perform or observe any term, provision, covenant or condition of the agreements, the plan and/or the resolution of approval for the project;

(2) Any material inaccuracy and/or any misrepresentation or breach of warranty (express or implied) made by the applicant or its agents;

(3) Any injury (including but not limited to death) or damage to any person, entity or property from any cause whatsoever arising out of, resulting from, caused by or related to the design, installation, construction, maintenance, quality of or failure of the improvements and/or any work performed at the property or land of others and any conditions created by the aforesaid design, installation, construction, etc., of the improvements; or

(4) Any discharge of surface water on to land of others from or through the property and other areas encompassed by the plan, the resolution approving the project and/or the agreements.

G. That the applicant, before any permit is issued to the applicant and before the applicant or any of its agents enter upon the property to conduct any earth moving activities, construction activities or perform any other site improvement activities, the applicant shall carry insurance coverage in amounts and with companies acceptable to the Township Solicitor. Such insurance shall include, at a minimum, commercial general liability insurance, workers' compensation and employers' liability insurance and commercial motor vehicle insurance coverage.

[1] Editor's Note: See 53 P.S. § 10509(a).

2. The form and type of financial security shall be approved by the Township Solicitor and shall be consistent with the Township's policy concerning financial security as may be adopted from time to time by resolution of the Board of Supervisors. Such financial security shall be posted with a bonding company or federal- or commonwealth-chartered lending institution chosen by the applicant posting the financial security, provided that the bonding company or lending institution is authorized to conduct business within the Commonwealth of Pennsylvania.

3. The amount of financial security to be posted for completion of the required improvements shall be equal to 110% of the cost of completion of the required improvements based upon the Township's cost to construct and install the improvements (including prevailing wage rates), estimated as of 90 days following the date scheduled for completion by the applicant, plus an additional 10% for contingencies above the estimated hard costs, the estimated cost to prepare the as-built plans required by § 22-603 and any fees which are to be paid to the Township following recording of the plan, such as recreation fees, capital improvements fees, highway capital improvements fees, etc, which are not paid prior to recording of the plan. The cost estimate also includes a separate line item for the estimated inspection fees of the Township Engineer inspecting the improvements. The estimated cost of completion of the required improvements shall be submitted by the applicant for review and approval by the Township Engineer and prepared by a professional engineer licensed as such in the Commonwealth of Pennsylvania and documented to the satisfaction of the Township Engineer by such engineer to be a fair and reasonable estimate of such cost. Upon the recommendation of the Township Engineer based on his/her review, the Township may refuse to accept such estimate. If the applicant and the Township are unable to agree upon an estimate, the procedures set forth in the Section 509(g) of the MPC shall be followed.[2] No final plan shall be approved until the estimated scheduled date for subdivision or land development construction completion is explicitly set forth on its cover sheet.

[2] Editor's Note: See 53 P.S. § 10509(g).

4. If the applicant requires more than one year from the date of posting of the financial security to complete the required improvements, the Township may require that the amount of financial security 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, based upon the Township's cost to construct and install the improvements (including prevailing wage rates), as reestablished on or about the expiration of the preceding one-year period by using the above procedure for estimating the cost of completion of the required improvements.

5. Where development is projected over a period of years, the Board of Supervisors may authorize submission of final plans by section or stages of development subject to such requirements or guarantees as to improvements in future stages of development as it finds essential for the protection of any finally approved section of the development.

6. As the work of installing the required improvements proceeds, the applicant may request that the Township release, from time to time, such portions of the financial security necessary for payment to the contractor performing the work. Any such request shall be in writing, addressed to Lower Mount Bethel Township, and the Board of Supervisors shall have 45 days from receipt of such request within which to allow the Township Engineer to provide written documentation to the Board of Supervisors that the improvements have been completed in accordance with the approved plan. This request by the applicant shall include a list of quantities of improvements installed as part of this specific request. If the Township fails to act within the 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 receipt of written documentation from the Township Engineer that the improvements have been completed satisfactorily, require retention of 10% of the estimated cost of the aforesaid improvements. This 10% retainer shall not be released until the financial security for the maintenance period referenced in Subsection 7 below has been posted.

7. Where the Township accepts dedication of all or some of the required improvements following satisfactory completion on the basis of review and recommendation by the Township Engineer, the Township may require the posting of additional financial security to secure the structural integrity of the improvements as well as the functioning of said improvements in accordance with the design and specifications in the final plan for a term not to exceed 18 months from the date of acceptance of dedication. The amount of this additional financial security shall be equal to 15% of the actual cost of installation of the improvements. The eighteen-month maintenance period shall not begin until the final inspection, approval and, where applicable, acceptance by the Township of all improvements required by this chapter and other applicable Township ordinances, rules, regulations, resolutions, etc., within the subdivision and/or land development.

8. Where adequate financial security has been provided as set forth above and in § 22-705, Subsection 4, regarding cost of inspections, testing and maintenance, where applicable, the Township shall not unreasonably withhold the issuance of building, grading or other permits relating to the construction of the improvements, including buildings, upon the lots or land as depicted on the final plan. Moreover, where adequate financial security has been provided and the applicant complies with § 22-600, Subsection 2, occupancy permits for any building or buildings to be erected shall not be withheld following the Township Engineer's certification provided in accordance with § 22-604 herein.

9. If the applicant desires to begin construction of the improvements prior to recording the final plan, signing the necessary agreement(s) and posting the required security, the applicant shall sign a pre-security agreement in the form prepared by the Township Solicitor which provides, among other things, for the applicant's responsibility for all inspections costs incurred by the Township while inspecting the applicant's construction of the improvements, insurance and indemnification as required by Subsection 1F and G and an acknowledgment by the applicant that it agrees that it is proceeding at its own risk if it proceeds to perform work with respect to any governmental approvals and permits it must still obtain, including but not limited to any permits which the applicant must obtain from the Pennsylvania Department of Transportation.

10. Lot monuments and/or markers, where required, shall be either installed or guaranteed by adequate financial security pursuant to this § 22-601 before the final plan is recorded.

[Ord. No. 2021-01, 5/3/2021]

§ 22-602 Inspections.

[Ord. 2013-11, 9/9/2013]

1. The construction or installation of all improvements shall at all times be subject to inspections by the Township Engineer and/or representatives of the Township. If such inspection reveals that work is not in accordance with approved plans, specifications and/or this chapter, that construction is not being done in a good, workmanlike manner, or that erosion and sediment controls are failing to prevent acceleration erosion or water borne sediment from leaving the site of construction, the Township Engineer or Township representative shall immediately notify the Township Secretary or Zoning Officer of the violations or infractions.

A. The Township Secretary, the Zoning Officer or other duly authorized representative of the Township is empowered to require corrections to be made and/or order the suspension of subdivision approval and to issue a cease-and-desist order which may include any or all of the following sanctions:

(1) That no lot in the subdivision shall be conveyed;

(2) That all construction on any lots for which a building permit has been issued shall cease;

(3) That no further building permits or certificates of occupancy for any lot shall be issued.

B. The Township Secretary, Building Code Official or Zoning Officer shall promptly inform the Township Board of Supervisors of any ordered suspension of subdivision approval or cease-and-desist order issued.

2. Any cease-and-desist order may be terminated upon the determination of the Township Engineer that the said defects or deviations from plan requirements have been corrected.

3. It shall be the responsibility of the applicant, subdivider, developer, builder, or contractor to notify the Township Secretary, who in turn will notify the Township Engineer or other duly authorized person, a minimum of two working days in advance of the commencement of any construction or installation of any improvement, facility or utility required by this chapter or by the approved subdivision or land development plan in order that provisions may be made for inspection by the Township.

4. In addition to the advance notice required in Subsection 3 above, it shall be the responsibility of the applicant, subdivider, developer, builder, or contractor to call, at a minimum, for the following specific inspections, by notifying the Township Secretary, who in turn will notify the Township Engineer or other duly authorized person, a minimum of two working days in advance of the time anticipated for the required inspection of the installation of all improvements pursuant to submitted final plans, including but not limited to the following:

A. Key trench for stormwater management basins following excavation but prior to the placement of any backfill.

B. Underground stormwater management facility prior to excavation.

C. All pipe work, including outlet pipe and antiseep collars in stormwater management basins, storm drains, and utilities, before backfill begins.

D. All stormwater management BMPs.

E. All sanitary treatment facilities.

F. All sanitary sewer lines.

G. All sanitary sewer pumping station and related facilities.

H. Utility work within existing roadways prior to road opening or saw-cutting of roadway.

I. Landscaping.

J. Lighting.

K. Traffic signals.

L. Trails.

M. Public water systems.

N. Culvert and/or bridge structures.

O. Footings for structures following excavation but prior to the commencement of any further construction work on the structure.

P. Fill placement in existing or future Township rights-of-way prior to placement.

Q. Road subgrade when completed, but before the start of installation of curbs or stone base course.

R. Curbs and/or sidewalks, when stone base is in place, and during the subsequent concrete pours.

S. Crushed aggregate base course during its installation.

T. Bituminous surface binder course during its installation.

U. Bituminous surface wearing course during its installation.

V. Erosion and sedimentation control facilities removal, including conversion of sediment basins/traps to permanent, prior to conversion.

W. Final inspection.

5. The Township Engineer is authorized to make periodic physical inspections of all subdivisions and land developments under construction in Lower Mount Bethel Township. In addition, the Township Engineer shall be responsible for reviewing and approving field construction or any special requirements which may be imposed by the Board of Supervisors at the time of approval of a land development and/or a subdivision plan. The Township Engineer shall report to the Board of Supervisors in writing periodically as to the status of construction and as to the status of any maintenance or bonding responsibilities, which extend beyond the completion date for any subdivision and/or land development.

§ 22-603 As-Built Plans.

[Ord. 2013-11, 9/9/2013]

1. Each applicant shall be required to file with the Township an as-built plan following completion of the development, prior to the Township's release of the maintenance security.

2. The as-built plan shall be a corrected copy of the approved subdivision/land development plan showing actual dimensions and conditions of roads and all other improvements, including but not limited to:

A. Concrete monuments and lot pins.

B. Roads/streets: cartway edges and center line, location and elevations.

C. Sanitary sewer mains, manholes, cleanouts and laterals.

D. Storm sewers, inlets, manholes, and culverts.

E. Water mains, valves and hydrants.

F. Streetlights and utility poles.

G. All known utilities including gas, electric, cable and telephone.

H. Stormwater management facilities.

I. Sidewalks, trails and landscaping.

J. Easements.

K. Certification of the accuracy of the plan by the applicant's engineer or surveyor.

3. In addition, the as-built plan shall indicate that the resultant grading, drainage structures and/or drainage systems and erosion and sediment control practices, including vegetative measures, are in substantial conformance with the previously approved drawings and specification. The plan shall note all deviations from previously approved drawings. Two copies of the as-built plan shall be submitted to the Board of Supervisors for distribution to the Township Engineer and for the Township file.

4. For major subdivisions, in addition to the paper plan submission, the Township may require a digital electronic submission meeting drafting standards, data layer separation requirements and in the format specified by the Township Engineer which shall remain electronically accessible for a minimum period of 10 years thereafter.

§ 22-604 Release From Performance Guarantee.

[Ord. 2013-11, 9/9/2013]

1. When the applicant has completed all of the required improvements, and has submitted the as-built plan in accordance with § 22-603, Subsections 1 through 4 above, it shall notify the Board of Supervisors in writing by certified or registered mail of the completion of the improvements, and shall send a copy 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 applicant's subdivision or land development improvements. The Township Engineer shall promptly file a report with the Board of Supervisors and shall mail a copy to the applicant by certified or registered mail. The report shall be made and mailed within 30 days after receipt by the Township Engineer of the authorization from the Township. This report shall indicate approval or rejection of the improvements, either in whole or in part, and if the improvements, or any portion thereof, shall not be approved or shall be rejected by the Township Engineer, the report shall contain a statement of reasons for such nonapproval or rejection.

2. The Board shall, within 15 days of receipt of the Township Engineer's report, notify the applicant by certified or registered mail of its actions in response to the Township Engineer's review of improvements.

3. If the Board of Supervisors or the Township Engineer fails to comply with the time limitations set forth in Subsection 1 or 2, all improvements identified in the applicant's request will be deemed to have been approved and the applicant shall be released from all liability pursuant to its performance guarantee, bond, or other security agreement as to those improvements contained in the applicant's request.

4. If any portion of the said improvements shall not be approved or shall be rejected by the Board, the applicant shall proceed to complete the same and upon completion, the same procedure of notification, as outlined herein, shall be followed.

5. The applicant's security may be released in stages as construction of a significant portion of streets, and all other public improvements, are completed and approved by the Board. Escrow releases must be signed and approved by the Township Engineer, who shall be responsible for determination of the amount of escrow to be released. No such amount shall be released, however, until approved by the Board.

6. The applicant shall be responsible for maintenance of all public improvements until such improvements are offered for dedication and are accepted by the Township. The Township is under no obligation, however, to accept dedication of improvements.

7. In the event 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 Supervisors has the power to enforce any escrow, 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 improvements covered by said security, the Board may, at its option, install all or part of the remainder of such improvements covered by said security, and may institute appropriate legal or equitable action to recover any monies spent in the installation thereof and any additional monies necessary to complete the remainder of the improvements. All the proceeds, whether resulting from the security, or from any legal or equitable action brought against the applicant, shall be used solely for the installation of the improvements covered by such security and not for any other purpose.

8. Nothing herein, however, shall be construed in limitation of the applicant's right to question or contest, by legal proceedings, any determination of the Board.

§ 22-605 Dedication and Acceptance of Improvements.

[Ord. 2013-11, 9/9/2013]

1. Upon completion of any public improvements shown on an approved final plan, the Board of Supervisors may require that an applicant offer such public improvements for dedication. In such a case, the Township Solicitor shall prepare a deed(s) of dedication or bill(s) of sale, as appropriate. Public improvements may be accepted by resolution of the Board at a regular meeting thereof. No roads or streets in any approved subdivision or development will be accepted as the responsibility of the Township until such time as 50% of the lots in any approved subdivision or development have dwellings or other principal buildings erected thereon and certificates of occupancy for such dwellings or principal buildings have been issued. Should the above-mentioned road or streets, even though constructed according to these specifications, deteriorate before the necessary 50% of the lots have buildings erected thereon, such roads or streets shall be repaired in a manner acceptable to the Board of Supervisors before being accepted by the Township.

2. The Board may require that any or all improvements, including but not limited to roads and stormwater management facilities, remain in private ownership, with the maintenance responsibility placed on individual lot owners, a homeowners' association or similar entity, or an organization capable of carrying out such maintenance responsibilities.

3. Where maintenance of improvements is to be the responsibility of individual lot owners, a homeowners' association or similar entity, or an organization capable of carrying out maintenance responsibilities, the Board shall require that a segregated capital improvements and maintenance fund ("Maintenance Fund"), or multiple funds in the case of individual lot owners being responsible for maintenance of the improvements on a lot, be established in an amount approved by the Township Engineer based upon the estimated annual maintenance cost of all of the improvements, including a capital reserve for major repairs and improvements, and that maintenance responsibilities be set forth in perpetual covenants or deed restrictions binding on the landowner's successors in interest, which shall be submitted to the Township Solicitor for review and approval.

4. Use of Maintenance Fund.

A. The Maintenance Fund shall be in addition to any construction or maintenance security required by this chapter. Use of the Maintenance Fund shall be limited to maintenance of the improvements and no other purpose. The Township must approve of any withdrawals from the Maintenance Fund. The party responsible for maintenance shall provide annual audits to the Township within 45 days of the close of the responsible party's fiscal year. In the case of a Maintenance Fund created for an individual lot owner, copies of bank statements of the Maintenance Fund shall be sufficient and shall be provided to the Township no later than February 15 of each calendar year. These requirements shall be incorporated into the declaration for any homeowners' association and the covenants/deed restrictions for individual lot owners.

B. If a homeowners' association or similar entity is established, the association formation documents (i.e., the declaration) shall be provided to the Township Solicitor for review and approval prior to recording. The formation documents must clearly describe the maintenance and funding mechanism relative to the perpetual maintenance of the improvements. The association formation documents shall also include provisions requiring the establishment of the Maintenance Fund. The Township shall be given the right to access the Maintenance Fund to perform maintenance in the event that the responsible party fails to do so. In the event any portion of the Maintenance Fund is expended, the association or similar entity shall replenish the Maintenance Fund by all means available to it, including but not limited to special assessment if required, within 60 days of expending any portion of the Maintenance Fund. Until the association's Maintenance Fund is adequately funded, as determined by the Township in its sole discretion, the applicant shall provide security to the Township in the form of an irrevocable letter of credit to cover anticipated maintenance costs.

5. A required maintenance program to be assumed by the lot owner(s) must be approved by the Township. The Township reserves the right, in its sole discretion, not to approve of maintenance programs which are proposed to be assigned to four lot owners or less. If maintenance is proposed by individual lot owners, the applicant shall post financial security in accordance with this chapter for the full amount of the Maintenance Fund until the Maintenance Fund is adequately funded.

6. The Maintenance Fund amount shall be determined as follows:

A. The applicant shall submit an estimated annual maintenance cost to the Township Engineer for review and approval in connection with the final plan submission. In addition to the annual maintenance costs, reserves sufficient for major repairs and capital improvements shall be included in both the estimate and Maintenance Fund. The Maintenance Fund shall cover the estimated costs for maintenance of the improvements in perpetuity.

B. The approved cost estimate amount shall then be converted to present worth utilizing an anticipated rate of return of 2%.

C. The Maintenance Fund shall be established or security therefor provided prior to the recording of any record plan of subdivision or land development submitted by the applicant which involves private maintenance of infrastructure improvements.

D. If the approved annual estimate of the maintenance costs is less than $500, the Maintenance Fund shall not be required.

7. The party responsible for the perpetual maintenance of the facilities shall provide the Township with an annual inspection report prepared by a civil engineer licensed to practice in Pennsylvania.

8. Failure to Maintain. In the event the responsible party fails to perform any duty or maintenance obligation as required under this chapter, the Township shall have the right to require the responsible party to perform such obligation by notifying the responsible party in writing. In the event the responsible party shall fail to undertake such performance within 30 days of receipt of the aforesaid notice from the Township, the Township shall have the right to undertake such performance and charge the responsible party therefore; provided, however, that the Township shall not be obligated to wait for the expiration of such thirty-day period if the Township determines that an emergency exists. No action taken by the Township shall be deemed in any way to relieve the responsible party from the performance of its obligations under this chapter, to obligate the Township to perform such service on a regular basis, and/or to be deemed an acceptance by the Township of such improvements.

A. If an association or other entity is responsible for maintenance, payment for such services or repairs shall be made to the Township from any funds under the control of the association for any purpose.

B. In the event the responsible party fails to reimburse the Township within 30 days of receipt of a written bill for such assessment or if funds received from the responsible party are insufficient to fully reimburse the Township, the Township shall have the right, after first providing written notice to the lot owner(s) or association, to assess the lot owner(s) or association, including the members directly in accordance with their respective percentage interests, for their proportionate share of such cost or deficiency. In the event of maintenance by an association, each such assessment shall be an assessment and shall entitle the Township to the same enforcement rights and remedies afforded to the association for delinquent and unpaid assessments, including, without limitation, the right to record a lien upon the unit against which such assessment is made. Each such assessment or delinquency, together with interest and the cost of collection thereof (including but not limited to reasonable fees for legal counsel and court costs), in addition to a fee of up to 20% of the maintenance expenses incurred by the Township as an administrative fee, shall also be the joint and several personal obligations of the owners of the unit at the time the assessment fell due.