ARTICLE 7

ASSURANCES FOR COMPLETION OF IMPROVEMENTS

SECTION 701 INSTALLATION OR GUARANTEE OF IMPROVEMENTS

No plan shall be granted final approval until the applicant either:

a. Installs all required improvements in accordance with the terms of approval and the applicable design standards of said improvements.

b. Posts a form of financial security, acceptable to the Planning Commission, which shall be of sufficient amount to fully cover the costs of all required improvements in accordance with the terms of approval and the applicable design standards of said improvements. The Planning Commission shall retain sole discretion in all matters and decisions related to the acceptance and/or approval of the posting of any financial security.

SECTION 702 TYPES OF FINANCIAL GUARANTEE

702.1 A financial guarantee which shall be deemed as acceptable financial security for the purposes of this Ordinance shall include:

a. An unconditional and irrevocable letter of credit with authorization for drawing upon by Township in the event of default or failure by the developer or applicant to complete the installation of required improvements.

b. A restrictive escrow account.

c. Other types of financial security which the Township may approve, which approval shall not be unreasonably withheld.

702.2 Such financial security shall be with a lending institution which is chartered by the Federal Government or the Commonwealth of Pennsylvania or with a bonding company which is legally authorized to conduct such business within the Commonwealth of Pennsylvania.

SECTION 703 REVIEW BY SOLICITOR

When an applicant proposes to provide a financial security, said financial security shall be submitted to the Planning Commission and their Solicitor for review not less than fourteen (14) days prior to the public meeting of the Planning Commission at which the acceptance and/or approval of proposed financial security will be considered by the Planning Commission.

SECTION 704 AMOUNT OF FINANCIAL SECURITY

The amount of financial security to be posted for the completion of required improvements shall be equal to 110% of the cost of completion, estimated as of ninety days following the scheduled completion date. The amount of the required financial security shall be based upon a written estimated cost of completion of required improvements, submitted by the developer or applicant, and prepared by a professional engineer, licensed as such by the Commonwealth. Said engineer shall certify in writing that his estimated cost for the completion of the required improvements is a fair and reasonable estimate. The Planning Commission, upon the recommendation of the Township Engineer, may for good cause shown, refuse to accept the developer's estimated cost. In cases where the Township and the developer or applicant are unable to agree on an estimate, then the estimate shall be recalculated and recertified by another licensed professional engineer, mutually accepted by the Township and the developer or applicant. The estimate certified by the third party engineer, being presumed fair and reasonable, shall be deemed the final estimate. In the event that the third party engineer is chosen, the cost of his services shall be paid equally by the Township and the developer or applicant.

SECTION 705 REQUIRED TIME PERIOD FOR COMPLETION

705.1 The financial security shall provide for, and secure to the public the completion of the required improvements within one (1) year of the date fixed on the Final Plan for the completion of such improvements.

705.2 If the applicant in posting the financial security requires more than one (1) year from the date of posting the financial security to complete the required improvements, the amount of financial security may be increased by an additional ten (10%) percent for each one year period beyond the anniversary date from posting of the financial security or to an amount not exceeding one hundred ten (110%) percent of the cost of completing the required improvements as reestablished on or before the expiration of the preceding one year period.

SECTION 706 PHASING OF DEVELOPMENT

In the case where development is projected over a period of years, the Planning Commission may authorize the submission of final plans by sections or phases of development subject to such requirements or guarantees as to improvements in future sections or phases of development as it finds essential for the protection of any finally approved section of the development.

SECTION 707 START OF WORK NOTICE

The applicant and/or developer shall provide the Township and the Township Engineer with not less than a seventy-two (72) hour notice prior to the commencement of work at the site.

SECTION 708 PERIODIC INSPECTIONS DURING CONSTRUCTION

The Township Engineer shall make periodic inspections to the site during the construction of improvements to insure the work is in conformance with the approved plans. The Township Engineer shall promptly provide Planning Commission with a written report after any such inspection.

SECTION 709 RELEASE OF PORTIONS OF FINANCIAL SECURITY

709.1 As the work of installing the required improvements proceeds, the party posting financial security may request the Planning Commission to release or authorize the release, from time to time, of such portions of the financial security necessary for payment to the contractor or contractors performing the work.

709.2 Any such request shall be in writing addressed to the Planning Commission. The

Planning Commission shall have forty-five (45) days from receipt of such request

within which to allow the Township Engineer to certify in writing to the Planning

Commission that such portion of the work upon the improvements has been

completed in accordance with the approved plan.

709.3 Upon such certification the Planning Commission shall authorize release by the bonding company or lending institution of an amount as estimated by the Township Engineer as fair in representing the value of the completed improvements. Failure of the Planning Commission to act within the said forty-five day period shall be deemed an approval of the release of the funds requested.

709.4 The Planning Commission may, prior to final release at the time of completion and certification by its Engineer, require retention of ten (10%) percent of the estimated cost of the aforesaid improvements.

SECTION 710 FINANCIAL SECURITY FOR MAINTENANCE OF

IMPROVEMENTS

710.1 Where Franklin Township accepts dedication of all or some of the required improvements following completion, it shall require the posting of financial security to secure the structural integrity of said improvements as well as the functioning of said improvements in accordance with the design and specifications as shown on the final plan for a term not to exceed eighteen (18) months from the date of acceptance of dedication.

710.2 Said financial security shall be of the same type as otherwise required in Section 702 of this Ordinance with regard to installation of such improvements, and the amount of the financial security shall not exceed fifteen (15%) percent of the actual cost of installation of said improvements.

SECTION 711 FINANCIAL SECURITY FOR IMPROVEMENTS UNDER

JURISDICTION OF A PUBLIC UTILITY OR MUNICIPAL

AUTHORITY

If water mains or sanitary sewer lines or both, along with apparatus or facilities related thereto, are to be installed under the jurisdiction and pursuant to the rules and regulations of a public utility or municipal authority separate distinct from the Township, financial security to assure proper completion and maintenance thereof shall be posted in accordance with the regulations of the controlling public utility or municipal authority and shall not be included within the financial security as otherwise required by this Section. A copy of any such executed financial security shall be provided to the Planning Commission not less than fourteen (14) days prior to its next regularly scheduled meeting at which the final plan shall be considered.

SECTION 712 ISSUANCE OF PERMITS WHEN FINANCIAL SECURITY HAS

BEEN POSTED

712.1 If financial security has been provided in lieu of the completion of improvements required as a condition for final approval as set forth in this Article, the Township shall not condition the issuance of zoning, building, grading or other permits relating to the erection or placement of improvements, including buildings, upon the lots or land as shown on the final plan upon actual completion of the improvements shown on the approved final plan.

712.2 If a financial security has been provided certificates of zoning compliance or occupancy permits for any building or buildings to be erected shall not be withheld following:

(a) the improvement of the streets providing access to and from existing public roads to such building or buildings to a mud-free or otherwise permanently passable condition.

and

(b) The completion of all other improvements as shown on the approved final plan, either upon the lot or lots beyond the lot or lots in question, if such improvements are deemed necessary for the reasonable use of or occupancy of the building or buildings.

SECTION 713 COMPLETION OF REQUIRED IMPROVEMENTS

713.1 When the applicant has completed all of the necessary and required improvements, the applicant shall notify the Planning Commission in writing, by certified or registered mail, of the completion of the aforesaid improvements and shall send a copy thereof to the Township Engineer.

713.2 The Planning Commission shall, within ten (10) days after receipt of such notice, direct and authorize the Township Engineer to inspect all the aforesaid improvements. The Township Engineer shall thereupon file a report, in writing with the Planning Commission, and shall promptly mail a copy of the same to the developer. The report by the Township Engineer shall be made and mailed within thirty (30) days from the aforesaid authorization from the Planning Commission.

713.3 The report shall be detailed and shall indicate approval or rejection of said improvements, either in whole or in part. If said improvements, or any portion thereof be rejected, said report shall contain a statement of the reasons for such rejection.

713.4 The Planning Commission shall notify the developer, in writing, within fifteen (15) days of receipt of the Township's Engineer's report, by certified or registered mail of the action of the Planning Commission with relation thereto.

713.5 If the Planning Commission 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 applicant shall be released from all liability, pursuant to its performance guarantee bond or other security agreement.

SECTION 714 RESPONSIBILITY OF APPLICANT UPON DISAPPROVAL OF

IMPROVEMENTS

If any portion of the said improvements shall not be approved or shall be rejected by the Planning Commission, the applicant shall proceed to complete the same and, upon completion, the same procedure of notification, as outlined in Section 713 shall be followed.

SECTION 715 APPLICANT'S RIGHT TO CONTEST ACTION

Nothing herein, however shall be construed in limitation of the applicant's right to contest or question by legal proceedings or otherwise any determination of the Planning Commission or Township Engineer.

SECTION 716 REMEDIES TO EFFECT COMPLETION OF IMPROVEMENTS

716.1 In the event that any improvements which may be required have not been installed as provided in this Ordinance or in accordance with the approved final plan, the Township can enforce any corporate bond or other security by appropriate legal and equitable remedies.

716.2 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 such improvements in all or part of the subdivision or land development, may institute appropriate legal or equitable action to recover the moneys necessary to complete the remainder of the improvements.

716.3 All of the proceeds, whether resulting from the security or from any legal or equitable action or from both brought against the applicant shall be used solely for the installation of the improvements covered by such security, and not for any other municipal purpose.

SECTION 717 ENGINEERING AND CONSULTING FEES

In addition to the fees noted in Section 110 of this Ordinance, the developer shall be responsible for payment of all engineering fees which the Township may incur as related to Sections 704, 705, 708, 709, 710 and 713 of this Ordinance. The developer shall be required to fully reimburse the Township for said engineering fees. The developer shall also be required to fully reimburse the Township for any engineering and/or other consulting fees which the Township may incur for the review of any required studies and/or reports within the context of an "IMPACT ANALYSIS" as so defined in Article 2 of this Ordinance. Upon notification by the Township of such costs, the developer shall provide a certified check or money order to the Township to fully reimburse the Township for said engineering fees, within thirty (30) days from the billing date from Franklin Township. An approved plan shall not be signed by the Planning Commission nor shall any permits related to the development of the site be issued until all fees are paid in full.

SECTION 718 PROCEDURE FOR DISPUTES OVER CONSULTING FEES

718.1 An applicant may contest the amount to be reimbursed to the Township for

consulting fees. The applicant shall notify the Township, in writing, within ten

(10) working days of the billing date, as to which consulting fees are disputed as

being unreasonable and/or unnecessary. The applicant shall forfeit any right to

contest the amount to be reimbursed to the Township for consulting fees, if

written notification is not submitted within the prescribed ten (10) working days

of the date of the billing.

718.2 In such cases, the Planning Commission shall not delay or disapprove a subdivision or land development application or any permit related to development due to the applicants written request to contest certain consulting expenses.

718.3 If, within twenty (20) days from the date of billing, the Township and the applicant cannot agree on the amount of consulting expenses which are reasonable and necessary, then the applicant and the Planning Commission shall jointly, by mutual agreement, appoint another professional engineer, licensed as such in the Commonwealth of Pennsylvania, to review the said expenses and make a determination as to the amount thereof which is reasonable and necessary.

718.4 The professional engineer so appointed shall hear such evidence and review such documentation as the professional engineer in his or her sole opinion deems necessary and render a decision within fifty (50) days of the billing date. The applicant shall be required to pay the entire amount determined in the decision immediately.

718.5 In the event that the Planning Commission and applicant cannot agree upon a professional engineer to be appointed within twenty (20) days of the billing date, then upon application of either party, the President Judge of the Luzerne County Court of Common Pleas (or if at the time there be no President Judge, then the senior active judge then sitting) shall appoint such engineer, who shall be neither the Township engineer nor any professional engineer who has been retained by, or performed services for, the Township or the applicant within the preceding five (5) years.

718.6 The fee of the appointed professional engineer for determining the reasonable and necessary consulting expenses shall be paid by the applicant if the amount of the payment required in the decision is equal to or greater than the original bill. If the amount of payment required in the decision is less than the original bill by $1,000.00 or more, the Township shall pay the fee of the professional engineer. If neither of the aforementioned cases apply, the Township and the applicant shall each pay one-half of the fee of the appointed professional engineer.