A.
Before approving any subdivision or land development
plan for recording, the Planning Commission shall require that the
city be assured by means of proper financial security that the improvements
required by this chapter will be installed in strict accordance with
the standards and specifications of this chapter, except: If a developer
chooses to install all required improvements prior to construction
of any building, in place of using performance guaranties, in which
case the city shall, as deemed necessary, require the developer to
provide adequate insurance, hold harmless agreements, an escrow account
to cover the costs of inspections and a professional estimate of the
costs of the improvements (to be used to establish the amount of the
inspections escrow).
B.
Purpose of security. The security required by this
chapter shall stand as security for compliance with all city ordinances,
other laws, covenants, stipulations, conditions and resolutions applicable
to the subdivision or land development for which it is filed.
C.
In any case, no construction of buildings or sales
of any individual lot or condominium unit within a subdivision or
land development shall take place unless:
A.
The applicant for a subdivision or the future purchaser
of the entire subdivision shall have the primary responsibility to
ensure installation of all improvements required by this chapter,
unless the Planning Commission specifically approves certain improvements
being made the responsibility of future purchasers of individual lots.
B.
The City Engineer or other city designee shall make
such inspections of the required improvements at such intervals as
may be reasonably necessary to assure compliance with this chapter.
The reasonable costs of such inspection shall be borne by the subdivider
or land developer, through use of an escrow account.
A.
Development agreement.
(1)
All applicants proposing any subdivision or land development
which provides for the installation of improvements required by this
chapter or any improvements or amenities which appear on the final
plan shall be required to enter into a legally binding development
agreement with the city prior to recording of the final plan, unless:
(2)
The development agreement shall guaranty the installation
of said improvements in strict accordance with all city requirements.
B.
Terms of development agreement. The development agreement
shall be acceptable in legal form to the City Solicitor and shall
be acceptable in content to the governing body. The city may require
that a development agreement include any of the following items, where
applicable, and such additional items as are necessary to carry out
this chapter:
(1)
The construction depicted on the approved plans, listed
in itemized format, including all approved streets, drainage facilities,
utility lines and other improvements.
(2)
A work schedule setting forth the beginning and ending
dates of such work tied to the construction of the development and
provisions to allow proper inspection by the City Engineer.
(3)
The provision of a performance guaranty for completion of required improvements in compliance with § 423-44, including a detailed breakdown of the estimated costs of the improvements, including the total amount of the performance guaranty.
(4)
Provisions concerning the developer's responsibilities
for damage to other property, including maintenance by the developer
of public liability insurance for the duration of improvements construction,
with a hold harmless clause to protect the city from liability related
to such work. A copy or other evidence of such liability coverage
shall be provided to the city prior to such work.
(5)
Provisions requiring that the applicant and/or other
responsible entities ensure that erosion, sedimentation and stormwater
management plans are complied with.
(6)
Provisions for the dedication of streets, water and
sewer lines and any other easements or improvements approved to be
dedicated.
(8)
Provisions for the developer to reimburse the city
for all reasonable engineering costs directly related to the review,
construction and inspection of the proposed development and to the
review and preparation of the development agreements.
(9)
Provisions concerning any violations of the development
agreement.
(10)
Any other lawful terms which the governing body
may require to carry out the provisions of this chapter.
(11)
Signatures. The development agreement shall
be signed by all responsible landowners and/or developers.
C.
Ownership of land and guaranty.
(1)
A certificate of ownership in the form of Appendix
B[1] shall be executed in the exact name in which title is
held. If the developer(s) of a subdivision is someone other than the
landowner(s) of the subdivision, the developer shall also execute
this affidavit, along with a security agreement.
[1]
Editor's Note: Appendix B is on file in the
city offices.
(2)
Change in ownership or developer. Any conveyance of
all or a substantial portion of the unimproved lots or public improvements
or streets of any subdivision or change in developers, whether voluntary
or by action of law or otherwise, shall require prior approval by
the governing body. Any such conveyance shall automatically require
that the new landowner and/or developer fully assume all applicable
responsibilities under the development agreement and post all the
appropriate security agreements.
D.
Utility agreements. If a development will connect
into a public water or public sanitary sewage system, the applicable
authority, agency or company may also require separate development
agreements.
The performance guaranty for completion of required
improvements shall meet the following requirements:
A.
Security.
(1)
The guaranty shall be secured by any of the following:
(a)
An irrevocable and unconditional letter of credit
of a federal or state chartered lending institution.
(b)
A restrictive or escrow account in a federal
or state chartered lending institution.
(c)
Such other financial security approved by the
city (which approval shall not be unreasonably withheld), but not
including a second or third mortgage on unimproved lands.
(2)
Such approved security shall provide for, and secure
to the public, the completion of any improvements which may be required
within the date fixed in the development schedule for the completion
of such improvements. It is the responsibility of the developer to
ensure that such security remains in effect during the entire time
period of construction of improvements. The city staff may withhold
or suspend the issuance of permits if such security lapses.
(3)
Such financial security shall be posted with an approved
institution or entity authorized to conduct such business within Pennsylvania.
B.
Amount.
(1)
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 as of 90 days following the date scheduled for completion by the developer in the official development schedule (see § 423-43).
(2)
The cost of the improvements shall be established
by an estimate prepared by a Pennsylvania registered professional
engineer, which shall be reviewed by the City Engineer, within the
arbitration process permitted by the Pennsylvania Municipalities Planning
Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
(3)
Inflation. If the party posting the financial security
requires more than one year from the date of posting of the financial
security to complete the required improvements, the amount of financial
security may be increased by a maximum of an additional 10% for each
one-year period beyond the first anniversary date from posting of
financial security or to an amount not exceeding 100% of the cost
of completing the required improvements as reestablished on or about
the expiration of the preceding one-year period by using the above
procedure.
(4)
Inspection fees. The amount of financial security
may also be required to include an additional 5% of the estimated
cost of completion of the work to guaranty payment of inspection fees
and related engineering costs. In any case, the applicant shall compensate
the city for all actual costs to the city of the inspections and related
engineering, based upon established hourly rates that include compensation
for employee benefits. If such costs are higher than the five-percent
security, the applicant shall also fund the difference. If such costs
are lower than the five-percent security, then the remaining funds
shall be released by the city.
C.
Multiyear or multistage development. In the case where
development is projected over a period of years, the Planning Commission
may authorize submission of final plans by phases/stages of development
subject to such requirements or improvement guaranties concerning
future improvements as it finds necessary for the proper functioning
of each phase and for the eventual development as a whole. Such phasing
may also be approved through a development agreement.
A.
In general. As the work of installing the required
improvements proceeds, the party posting the financial security may
from time to time request the city to authorize the release of portions
of the financial security related to the work that has been completed.
B.
Notice by developer of work on improvements.
(1)
The developer or his/her representative shall provide
a minimum of three days notice to the City Engineer's office (or other
inspection official designated by the Mayor) prior to beginning each
major facet of construction, in order to allow the scheduling of inspections.
(2)
When an improvement has been completed, the developer
shall notify the city and request release of related financial security,
in writing, to City Council by certified or registered mail. The developer
shall send a copy of letter to the City Engineer at the same time.
C.
Engineer's report.
(1)
Within 30 days of the receipt of such request, the
City Engineer shall submit a written report certifying which improvements
have been completed in accordance with the approved plan to the Mayor
and mail a copy of such report by certified or registered mail to
the developer or his/her representative at her last known address.
(2)
This report shall be based on site inspections and
shall recommend approval or rejection of the improvements, either
in whole or in part.
(3)
The City Engineer shall state if any of the improvements
related to the developer's request for release of funds have not been
satisfactorily completed as approved.
D.
Decision by the governing body.
(1)
After receiving the Engineer's report [but not later
than 45 days after the receipt of the request], the Mayor shall review
the City Engineer's report and shall authorize the release of funds
estimated by the City Engineer to fairly represent the value of the
improvements satisfactorily completed.
(2)
The city shall be deemed to have approved the release
of funds as requested if the city fails to act within 45 days of receipt
of the developer's request.
(3)
Until final release (completion of all improvements),
the city may require that a maximum of 10% of the cost of each completed
improvement be retained.
(4)
The City Engineer shall notify the developer, in writing,
by certified or registered mail of the decision.
E.
Completion of unapproved improvements. The developer shall satisfactorily complete any required improvements that the city determines are not satisfactory or complete. Upon completion, the applicant may request approval in conformance with the procedures specified in this § 423-45.
F.
Final release.
(1)
When the developer has satisfactorily completed all of the required improvements, the developer shall request final release in conformance with the procedures specified in this § 423-45. See time limitations and procedures in Section 510 of the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10510.
(2)
Such final release shall include all moneys retained under § 423-45D(3).
G.
Appeal. Nothing herein, however, shall be construed
to limit the developer's right to contest or question by legal proceedings
or otherwise any determination of the city or the City Engineer.
H.
Certificates of occupancy and completion of improvements.
(1)
A temporary or final certificate of occupancy shall
not be issued and a structure shall not be occupied unless all principal
buildings have access to a clearly permanently passable street with
at least a complete paving base course and any required curbing installed.
A.
Enforcement of security.
(1)
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 final plan, or in the event of the bankruptcy of the
owner or developer, the city is hereby granted the power to elect
to enforce any security posted under this chapter by appropriate legal
and equitable remedies. This may include taking all actions necessary
to obtain moneys under said security, including but not limited to
seizure of undeveloped lots, seizure of escrow funds, revocation of
building permits and prosecution under this chapter.
(2)
Rate of construction. Failure of a developer to construct
streets and other public improvements reasonably at the same time
or prior to the construction of the buildings served by those streets
or public improvements, and at the same rate in time at which buildings
are completed, shall be a violation of this chapter and a cause for
default of the security.
B.
Completion by city. If the proceeds of such security
are insufficient to pay the cost of installing or making repairs or
corrections to all the improvements covered by said security, the
city may at its option install part of such improvements in all or
part of the subdivision or land development and may institute appropriate
legal or equitable action to recover the moneys necessary to complete
the remainder of the improvements.
C.
Proceeds for installation of improvements. The proceeds
from use of the security and/or from any legal or equitable action
brought against the developer shall be used solely for the installation
of the improvements covered by such security and closely related administrative
expenses.
A.
Maintenance guaranty required. All applicants proposing
any subdivision or land development which provides for the public
dedication of improvements required by this chapter shall be required
to provide a legally binding maintenance guaranty to the city prior
to acceptance of dedication of the improvements by the city. In most
cases, this guaranty will be part of the security agreement.
B.
Terms of maintenance guaranty. The maintenance guaranty
shall be acceptable in legal form to the city solicitor and in content
to the governing body and shall include all of the following:
(1)
That the applicant make any repair or reconstruction
of any improvement stipulated in the maintenance agreement which is
specified by the governing body if needed because of faulty construction,
workmanship or materials, prior to acceptance of such improvement
by the city.
(2)
That the applicant maintain at his/her own cost all
improvements stipulated in the maintenance agreement, including a
maximum period of 18 months after the date of dedication, unless a
lesser period is specified otherwise.
(3)
That the applicant post financial security to secure
structural integrity of and proper functioning of such required improvements
in accordance with the design and specifications as depicted on the
final plan, for a maximum period of 18 months after the date of dedication.
(4)
That the developer plow snow and maintain all streets
until such time as the city may accept such streets.
C.
Public utilities and authorities. If water mains and/or
sanitary sewer lines and related facilities are to be installed under
the jurisdiction and under the rules and regulations of a public utility
or municipal authority, 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. This amount
of financial security shall not also be required by the city if it
is required by such utility or authority.
D.
Type of security. The maintenance guaranty shall be
secured by the same form of security as is permitted for the improvements
guaranties.
E.
Security. The financial security shall be payable
to and enforceable by the City of Scranton.
F.
Amount. The amount of the maintenance guaranty shall
be determined by the applicant's engineer, conditioned upon acceptance
by the city, but shall not exceed 15% of the actual cost of installation
of such improvements.
G.
Release. After a maximum of 18 months from the date
of completion of said improvements, the city shall release the maintenance
guaranty to the developer (or party that posted the guaranty) if all
improvements are in satisfactory condition, as determined by the city.
