(A) Bonding; decommissioning.
(1) Before final permit approval, the applicant must submit to the Township Board of Supervisors a bond which shall be deposited with the municipality of financial security in an amount sufficient to cover the costs of decommissioning all improvements or common amenities, including, but not limited to, the windmill and appurtenances including the base and footing, storm water detention and/or retention basins and other related drainage facilities, and electrical apparatus and restoration of the land to its original condition including forestry plantings of the type and density as the original.
(2) When requested by the developer, in order to facilitate financing, the governing body may furnish the developer with a signed copy of a resolution indicating approval of the permit contingent upon the developer obtaining a satisfactory financial security and meeting all requirements of this chapter and permit. The resolution or letter of contingent approval shall expire and be deemed to be revoked if the financial security agreement is not executed within 90 days unless a written extension is granted by the township; such extension shall not be unreasonably withheld and shall be placed in writing at the request of the developer.
(3) Without limitations as to other types of financial security which the municipality may approve, which approval shall not be unreasonably withheld, federal or commonwealth chartered lending institution irrevocable letters of credit and restrictive or escrow accounts in such lending institutions shall be deemed acceptable financial security for the purposes of this section.
(4) Such financial security shall be posted with a bonding company or federal or commonwealth chartered lending institution chosen by the party posting the financial security, provided said bonding company or lending institution is authorized to conduct such business with the commonwealth.
(5) Such bond or other security shall provide for and secure to the public the decommissioning of any improvements.
(6) The amount of financial security to be posted for the decommissioning of any improvements shall be equal to 110% of the cost. Annually, the municipality may adjust the required amount of the financial security. Subsequent to said adjustment, the municipality may require the developer to post additional security in order to assure that the financial security equals said 110%. Any additional security shall be posted by the developer in accordance with this section.
(7) The amount of financial security required shall be based upon an estimate of the cost of decommissioning of any improvements, submitted by an applicant or developer and prepared by a professional engineer licensed as such in this commonwealth and certified by such engineer to be a fair and reasonable estimate of such cost. The municipality, upon the recommendation of the Municipal Engineer, may refuse to accept such estimate for good cause shown. If the applicant or developer and the municipality are unable to agree upon an estimate, then the estimate shall be recalculated and recertified by another professional engineer licensed as such in this commonwealth and chosen mutually by the municipality and the applicant or 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 municipality and the applicant or developer.
(8) As the work of decommissioning of any improvements proceeds, the party posting the financial security may request the governing body 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 governing body, and the governing body shall have 45 days from receipt of such request within which to allow the Municipal Engineer to certify, in writing, to the governing body that such portion of the decommissioning of any improvements has been completed. Upon such certification, the governing body shall authorize release by the bonding company or lending institution of an amount as estimated by the Municipal Engineer fairly representing the value of the decommissioning of any improvements or, if the governing body fails to act within said 45-day period, the governing body shall be deemed to have approved the release of funds as requested.
(B) Release from decommissioning bond.
(1) When the developer has completed the decommissioning of all improvements, the developer shall notify the municipal governing body, in writing, by certified or registered mail, of the completion of the aforesaid decommissioning of all improvements, and shall send a copy thereof to the Municipal Engineer. The municipal governing body shall, within ten days after receipt of such notice, direct and authorize the Municipal Engineer to inspect the site. The Municipal Engineer shall, thereupon, file a report in writing with the municipal governing body, and shall promptly mail a copy of the same to the developer by certified or registered mail. The report shall be made and mailed within 30 days after receipt by the Municipal Engineer of the aforesaid authorization from the governing body. Said report shall be detailed and shall indicate approval or rejection of said decommissioning of all improvements, either in whole or in part, and if said improvements, or any portion thereof, shall not be approved or shall be rejected by the Municipal Engineer, said report shall contain a statement of reasons for such non-approval or rejection.
(2) The municipal governing body shall notify the developer, within 15 days of receipt of the engineer’s report, in writing by certified or registered mail of the action of said municipal governing body with relation thereto.
(3) If the municipal governing body or the Municipal Engineer fails to comply with the time limitation provisions contained herein, all decommissioning of all improvements will be deemed to have been approved and the developer shall be released from all liability, pursuant to its performance guarantee bond or other security agreement.
(4) If any portion of the work shall not be approved or shall be rejected by the municipal governing body, the developer shall proceed to complete the same and, upon completion, the same procedure of notification, as outlined herein, shall be followed.
(5) Nothing herein, however, shall be construed in limitation of the developer’s right to contest or question by legal proceedings or otherwise, any determination of the municipal governing body or the Municipal Engineer.
(6) Where herein reference is made to the Municipal Engineer, he or she shall be a duly registered professional engineer employed by the municipality or engaged as a consultant thereto.
(7) The municipality may prescribe that the applicant shall reimburse the municipality for the reasonable and necessary expense incurred for the inspection of decommissioning of improvements. Such reimbursement shall be based upon a schedule established by resolution. Such expense shall be reasonable and in accordance with the ordinary and customary fees charged by the Municipal Engineer or consultant for work performed for similar services in the community, but in no event shall the fees exceed the rate or cost charged by the engineer or consultant to the municipalities when fees are not reimbursed or otherwise imposed.
(a) In the event the applicant disputes the amount of any such expense in connection with the inspection of decommissioning of improvements, the applicant shall, within ten working days of the date of billing, notify the municipality that such expenses are disputed as unreasonable or unnecessary, in which case the municipality shall not delay or disapprove a permit related to the development due to the applicant’s request over disputed engineer expense.
(b) If, within 20 days from the date of billing, the municipality and the applicant cannot agree on the amount of expenses which are reasonable and necessary, then the applicant and municipality shall jointly, by mutual agreement, appoint another professional engineer licensed as such in the commonwealth to review the said expenses and make a determination as to the amount thereof which is reasonable and necessary.
(c) 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 50 days of the billing date. The applicant shall be required to pay the entire amount determined in the decision immediately.
(d) In the event that the municipality and applicant cannot agree upon the professional engineer to be appointed within 20 days of the billing date, then, upon application of either part, 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 engineer, who, in that case, shall be neither the Municipal Engineer nor any professional engineer who has been retained by, or performed services for, the municipality or the applicant within the preceding five years.
(e) The fee of the appointed professional engineer for determining the reasonable and necessary expenses shall be paid by the applicant if the amount of 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 or more, the municipality shall pay the fee of the professional engineer, but otherwise the municipality and the applicant shall each pay one-half of the fee of the appointed professional engineer.
(C) Remedies to effect completion of decommissioning of improvements. In the event that any decommissioning of improvements which are required have not been completed as provided in this chapter and permit, the governing body of the municipality is hereby granted the power to enforce any 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 decommissioning of improvements covered by said security, the governing body of the municipality may, at its option, proceed with of decommissioning of all improvements and may institute appropriate legal or equitable action to recover the moneys 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 decommissioning of all improvements covered by such security and not for any other municipal purpose.
(Ord. 5-2006, passed 12-7-2006)