[Ord. 2014-01, 1/6/2014]
1.
When requested by the applicant, to facilitate financing, the Board
of Supervisors shall furnish the applicant with a signed copy of a
resolution indicating approval of the final plan contingent upon the
applicant obtaining satisfactory financial security and executing
a development agreement.
2.
The final plan shall not be signed nor recorded until the financial
security is tendered and a development agreement is executed. The
resolution or letter of contingent approval shall expire and be deemed
to be revoked if the financial security is not tendered and the development
agreement is not executed within 90 days of the date of the resolution
or contingent approval. The Board of Supervisors may, at its discretion,
grant a written extension which shall be placed in writing at the
request of the applicant.
[Ord. 2014-01, 1/6/2014]
1.
No subdivision and/or development application shall be given final
plan approval unless the streets shall have been improved and any
walkways, curbs, gutters, street lights, fire hydrants, shade trees,
water mains or on-site water facilities, sanitary sewers or on-site
sanitary sewage facilities, capped sewers, storm drains, and such
other improvements as shall be required under the provisions of this
chapter, shall have been constructed and installed in accordance with
this chapter, and such other ordinances, codes, regulations, plans,
and maps as shall be applicable thereto. Further, no plan shall be
finally approved for recording and no building permits shall be issued
until the landowner or developer has completed all required improvements
or has provided a completion and maintenance guarantee as set forth
herein.
2.
In lieu of the completion of any improvements, which may be required
as a condition for the final approval of the subdivision or land development
plan, including improvements and fees required by this chapter, the
applicant shall deposit with the Township an amount as hereinafter
calculated to cover the costs of such required improvements or common
amenities including, but not limited to, streets, curbs, gutters,
walkways, streetlights, water mains, sanitary sewers, fire hydrants,
storm sewers, stormwater detention and/or retention basins, other
related drainage facilities, all required landscaping, recreational
facilities, open space improvements and other required improvements.
A written improvements agreement in the form required by the Township
shall be required at the time that security is posted as a requirement
of plan approval.
3.
Acceptable Financial Security. In addition to cash deposits and escrow
accounts, and other types of financial security which the Township
may approve, which shall not be unreasonably withheld, federal or
commonwealth-chartered lending institution irrevocable letters of
credit extending for a term of one year beyond the completion of all
improvements, and restrictive or escrow accounts in such a lending
institution, shall be deemed acceptable financial security for the
purposes of securing the completion of the required improvements.
As to letters of credit, they shall contain automatic renewal clauses
and automatic 10% increases for each year beyond the initially stated
completion date. Such financial security shall be posted with the
Township by a bonding company or federal or commonwealth-chartered
lending institution chosen by the applicant, provided such bonding
company or lending institution is authorized to conduct business within
the Commonwealth of Pennsylvania, and has a branch open for public
business within 20 miles of Douglass Township. Such bond, or other
security, shall provide for, and secure to the public the completion
of any improvements which may be required on or before the date fixed
in the formal action of approval or accompanying agreement for completion
of the improvements.
4.
Amount of Financial Security. 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 by the applicant
and approved by the Township including administrative and engineering
costs and expenses estimated as of 90 days following the date scheduled
for completion by the applicant and all administrative and engineering
inspections, fees, costs and expenses.
A.
The amount of required financial security shall be based upon an
estimate of the cost of completion and inspection of required improvements
submitted by the applicant or applicants and prepared by a professional
engineer licensed as such in the commonwealth and certified by such
engineer to be a fair and reasonable estimate of all such costs.
B.
The Township, upon the recommendation of the Township Engineer, may
refuse to accept such estimate for good cause shown. If the applicant
or applicants and the Township are not able to agree upon an estimate,
then the estimate shall be recalculated and recertified by another
professional engineer licensed as such in the commonwealth and chosen
mutually by the Township and the applicant or applicants. The estimate
certified by the third engineer shall be presumed fair and reasonable.
5.
Increases in the Amount of Security. If the applicant requires more
than one year from the date of posting the financial security to complete
the required improvements, the amount of financial security shall
be increased by an additional 10% for each one-year period or portion
thereof beyond the first anniversary date from posting of financial
security or to an improvement amount not exceeding 110% of the cost
of completion and inspection of the required improvements as reestablished
on or about the expiration of the preceding one-year period by using
the procedure described above.
6.
Completion in Phases. In the case where development is projected
over a period of years as set forth in a phasing plan incorporated
as part of the approved preliminary plan, the Township may authorize
submission and approval of final plans by phase subject to such requirements
or guarantees covering those improvements included within the approved
final plan phase as well as to improvements in future sections or
phases of development it finds essential for the protection of any
finally approved section of the development.
7.
Release of Escrow.
A.
As the work of installing the required improvements proceeds, the
party posting the financial security may request the Board of Supervisors
to release or authorize the release, from time to time, portions of
the financial security.
B.
Any such request shall be in writing addressed to the Board of Supervisors,
and the Board of Supervisors shall have 45 days from receipt of such
request within which the Township Engineer shall certify, in writing,
to the Township whether such portion of the improvements has been
completed in accordance with the approved plan and applicable specifications.
Upon certification of completion, the Township shall authorize release
by the bonding company or lending institution of an amount as estimated
by the Township Engineer that fairly represents the value of the improvements
completed or, if the Township fails to act within said forty-five-day
period, the Township shall be deemed to have approved the release
of funds as requested.
8.
Retention of 10%. The Township shall, prior to release of any escrow
at the time of completion and certification by the Township Engineer,
require retention of 10% of the original amount of the posted financial
security for the aforesaid improvements.
[Ord. 2014-01, 1/6/2014]
1.
The Board of Supervisors shall at its discretion accept a part of
all of the required improvements if satisfied that the applicant has
complied with the approved plan and all specifications and ordinances
of the Township.
2.
The applicant shall furnish the Township with legal descriptions for all roads and easements, together with a certificate from the contractor or contractors evidencing the payment of all labor and material costs, and a title search to indicate that all roads and other improvements, such as open space and easements, are free of all liens and encumbrances. In addition, the applicant shall provide two complete sets of prints, and an electronic copy, of the completed required improvements (as-built plans) including drainage, profiles and utilities; and pay all costs for the Clerk of Courts and Recorder of Deeds of Berks County regarding the petition and resolution to the Board of Supervisors for its acceptance of the required improvements and any deed of dedication for the same. The as-built plans shall be prepared in accordance with §§ 22-312 and 22-405 herein. In addition, a set of reduced format prints showing all dimension, directions and locations of all streets proposed for dedication shall be submitted to facilitate PennDOT review for liquid fuels.
3.
The Board of Supervisors may accept a street when at least 50% of
all lots having access to such street have completed dwellings located
thereon; and, the Board of Supervisors determines that the public
interest requires that such streets be accepted.
4.
The Board of Supervisors shall have no responsibility with respect
to any improvements, notwithstanding any public use thereof, unless
and until such improvements are accepted for dedication by duly enacting
or adopting an ordinance or resolution therefor.
[Ord. 2014-01, 1/6/2014]
1.
Where the Township accepts dedication of all or some of the required
improvements following completion, the Township shall require the
posting of financial security to secure structural integrity of said
dedicated improvements as well as the functioning of said dedicated
improvements in accordance with the design standards and specifications
as shown on the final plan as recorded.
2.
The maintenance period shall be 18 months from the date of acceptance
of dedication, and/or completion of all non-dedicated improvements.
3.
The financial security shall be of the same type as described previously
in this chapter. The amount of financial security for maintenance
shall be 15% of the actual cost of the installation of said dedicated
improvements. A written maintenance agreement is required in the form
acceptable to the Township, with the procedures for inspections and
release of security at the end of the maintenance period, being the
same as set forth in this section for improvements.
[Ord. 2014-01, 1/6/2014]
If water mains or sanitary sewer lines, or both, along with
the apparatus or facilities related thereto, are to be installed under
the jurisdiction and pursuant to the rules and regulations of a public
utility or municipal authority separate and distinct from the Township,
financial security to assure proper completion and maintenance thereof
shall be posed in accordance with the regulations of the controlling
public utility or municipal authority and shall not be included within
the financial security as otherwise required by the Township.
[Ord. 2014-01, 1/6/2014]
1.
Procedural Requirements.
A.
Partial Release.
(1)
As the work of installing the required improvements proceeds.
The party posting the financial security may request the Township
to release or authorize the release, from time to time, such portions
of the financial security necessary for payment to the contractor
or contractors performing the work. Any such requests shall be in
writing addressed to the Township, and the Township shall have 45
days from receipt of such request within which to allow the Township
Engineer to certify, in writing, to the Township that such portion
of the work upon the improvements has been completed in accordance
with the approved plat.
(2)
Upon such certification, from the Township Engineer, the Township
shall authorize the release by the bonding company or lending institution
of an amount as estimated by the Township Engineer fairly representing
the value of the improvements completed or, if the Township fails
to act within said forty-five-day period, the Township shall be deemed
to have approved the release of funds as requested. The governing
body may, prior to final release at the time of completion and certification
by its Township Engineer, require retention of 10% of the estimated
cost of the aforesaid improvements.
B.
Final Release.
(1)
When the applicant has completed all of the necessary and appropriate
improvements, the applicant shall notify the Township, in writing,
by certified or registered mail, of the completion of the required
improvements and shall send a copy thereof to the Township Engineer.
The Township shall, within 10 days after receipt of such notice, direct
and authorize the Township Engineer to inspect all of the required
improvements. The Township Engineer shall, thereupon, file a report,
in writing, with the Township and shall promptly mail a copy of the
same to the applicant by certified or registered mail. The report
shall be made and mailed within 30 days after receipt by the Township
Engineer of the aforesaid authorization from the Township; and said
report shall be detailed and shall indicate approval or rejection
of said improvements, or any portion thereof.
(2)
If the improvements are not approved or shall be rejected by
the Township Engineer, said report shall contain a statement of reasons
for such non-approval or rejection. The Township shall notify the
applicant, within 15 days of receipt of the Engineer's report,
in writing, by certified or registered mail, of the action of the
Township with relation thereto.
(3)
If the Township or the Township Engineer fails to comply with
the time limitation provisions contained within this chapter for final
release of 55 days, all improvements will be deemed to have been approved,
and the applicant shall be released from liability for installation,
pursuant to his performance guarantee bond or other security agreement,
but shall be liable for and shall provide a maintenance guarantee
as otherwise provided for herein.
(4)
If any portion of said improvements shall not be approved or
shall be rejected by the Township, the applicant shall proceed to
complete the same and, upon completion, the same procedure of notification,
as outlined above, shall be followed.
2.
Reimbursement of Inspection Expenses. The applicant shall reimburse
the Township for the reasonable and necessary expenses incurred for
the inspection of improvements. Fees shall be based on a fee schedule
adopted by resolution of the Board of Supervisors.
A.
Invoices for reimbursement shall be submitted to the applicant by the Township on a thirty-day, monthly basis. All outstanding inspection fees and costs shall be paid to the Township by the applicant upon receipt of the invoice. If the inspection fees and costs are not reimbursed by the applicant within 100 days, Subsection 3 of this section may be used to pursue reimbursement, unless the unpaid inspection fees were disputed by the applicant within 100 days of the billing date and the dispute remains undecided.
B.
Depending on the magnitude of the improvements, and the inspection
required, an additional escrow deposit may be required against which
fees may be drawn.
C.
Subsequent to the completion of improvements, the Township Engineer,
or other professional consultant, shall submit to the Township a bill
for inspection services designated as a final bill, including inspection
fees incurred through the release of the financial security.
D.
In the event that the applicant disputes the amount of any expense
associated with the inspection of improvements, the applicant shall,
not later than 100 days after the date of transmittal of a bill for
inspection services, notify the Township and the Township Engineer
or consultant that such inspection expenses are disputed as unreasonable
or unnecessary and shall explain the basis of their objections to
the fees charged, in which case the Township shall not delay or disapprove
a request for release of financial security, a subdivision or land
development application or any approval or permit related to development
due to the applicant's dispute of inspection expenses. Failure
of the applicant to dispute a bill within 100 days shall be a waiver
of the applicant's right to arbitration of that bill under this
section.
E.
If, the Township Engineer or other professional consultant and the
applicant cannot agree on the amount of expenses which are reasonable
and necessary, then the applicant shall have the right, within 100
days of the transmittal of the final bill or supplement to the final
bill to the applicant, to request the appointment of another professional
engineer or consultant to serve as an arbitrator. The applicant and
professional engineer or consultant whose fees are being challenged
shall by mutual agreement, appoint another professional engineer or
consultant to review any bills the applicant has disputed and which
remain unresolved and make a determination as to the amount thereof
which is reasonable and necessary. The arbitrator shall be of the
same profession as the professional engineer or consultant whose fees
are being challenged.
F.
An arbitrator so appointed in Subsection 2E above shall hear such
evidence and review such documentation as the arbitrator in his or
her sole opinion deems necessary and shall render a decision no later
than 50 days after the date of appointment. Based on the decision
of the arbitrator, the applicant or the professional engineer or consultant
whose fees were challenged shall be required to pay any amounts necessary
to implement the decision within 60 days. In the event the municipality
has paid the professional engineer or consultant an amount in excess
of the amount determined to be reasonable and necessary, the professional
engineer or consultant shall within 60 days reimburse the excess payment.
G.
In the event that the municipality's professional engineer or
consultant and applicant cannot agree upon the arbitrator to be appointed
within 20 days of the request for appointment of an arbitrator, then,
upon application of either party, the president judge of the court
of common pleas of the judicial district in which the municipality
is located (or if at the time there be no president judge, then the
senior active judge then sitting) shall appoint such arbitrator, who,
in that case, shall be neither the municipality's professional
engineer or consultant, nor any professional consultant who has been
retained by, or performed services for, the municipality or the applicant
within the proceeding five years.
H.
The fee of the arbitrator shall be paid by the applicant if the review
fee charged is sustained by the arbitrator, otherwise it shall be
divided equally between the parties. If the disputed fees are found
to be excessive by more than $5,000, the arbitrator shall have the
discretion to assess the arbitration fee in whole or in part against
either the applicant or the professional consultant. The governing
body and the consultant whose fees are the subject of the dispute
shall be parties to the proceeding. If the disputed fee is upheld
by the arbitrator, the fee of the arbitrator shall be paid by the
charging party if the disputed fee is $2,500 or greater than the payment
decided by the arbitrator. The fee of the arbitrator shall be paid
in an equal amount by the applicant and the charging party if the
disputed fee is less than $2,500 of the payment decided by the arbitrator.
I.
In the event that the disputed fees have been paid and the arbitrator
finds that the disputed fees are unreasonable or excessive by more
than $10,000, the arbitrator shall:
J.
The Township or an applicant shall have 100 days after paying a fee
to dispute any fee charged as being unreasonable or excessive.
3.
Remedies to Effect Completion of Improvements. In the event that
any improvements which may be required have not been installed as
provided for in the subdivision and land development ordinance or
in accordance with the approved final plan, the Township shall have
the power to enforce any corporate bond, or other security, by appropriate
legal and equitable remedies. If the proceeds of such bond, or other
security, are insufficient to pay the cost of installing or making
repairs or corrections to all the improvements covered by said security,
the Township may, at its option, install part of or all such improvements
in the subdivision or land development and may institute appropriate
legal action to recover the monies necessary to complete the remainder
of the improvements. All of the proceeds, whether resulting from the
security or from any legal or equitable action brought against the
developer, or both, shall be used solely for the installation of the
improvements covered by such security, and not for any other municipal
purposes.
