[Amended 10-6-1981 by Ord. No. 870; 3-16-1999 by Ord. No. 1094]
A. Completion of improvements or guarantee thereof prerequisite to final
plat approval.
(1) No plat shall be finally approved unless the streets shown on such
plat have been improved to a mud-free or otherwise permanently passable
condition or improved as may be otherwise required by this chapter,
and any walkways, curbs, gutters, streetlights, fire hydrants, shade
trees, water mains, sanitary sewers, storm sewers and other improvements
as may be required by this chapter have been installed in accordance
with this chapter. In lieu of the completion of any improvements required
as a condition for the final approval of a plat, including improvements
or fees otherwise required by this chapter, the developer may deposit
with the Borough financial security in an amount sufficient to cover
the costs of such improvements or common amenities, including basins
and other related drainage facilities, recreational facilities, open
space improvements, or buffer or screen plantings which may be required.
(2) When requested by the developer, in order to facilitate financing,
the Borough Council shall furnish the developer with a signed copy
of a resolution indicating approval of the final plat contingent upon
the developer obtaining a satisfactory financial security. The final
plat or record plan shall not be signed nor recorded until the financial
improvements agreement is executed. 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 Borough Council; such extension shall
not be unreasonably withheld and shall be placed in writing at the
request of the developer.
(3) Without limitation as to other types of financial security which
the Borough 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 within
the commonwealth.
(5) 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.
(6) 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. Annually, the Borough may adjust the
amount of the financial security by comparing the actual cost of the
improvements which have been completed and the estimated cost for
the completion of the remaining improvements as of the expiration
of the 90th day after either the original date scheduled for completion
or a rescheduled date of completion. Subsequent to said adjustment,
the Borough 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 subsection.
(7) The amount of financial security required shall be based upon an
estimate of the cost of completion of the required improvements, submitted
by the 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 Borough, upon
the recommendation of the Borough Engineer, may refuse to accept such
estimate for good cause shown. If the applicant or developer and the
Borough 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 Borough 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 Borough and the applicant
or developer.
(8) 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 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
as reestablished on or about the expiration of the preceding one-year
period by using the above bidding procedure.
(9) In the case where development is projected over a period of years,
the Borough Council may authorize submission of final plats by sections
or stages of development subject to such requirements or guarantees
as to improvements in future sections or stages of development as
it finds essential for the protection of any finally approved section
of the development.
(10)
As the work of installing the required improvements proceeds,
the party posting the financial security may request the Borough Council
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. Any such requests shall be in
writing, addressed to the Borough Council, and the Borough Council
shall have 45 days from receipt of such request within which to allow
the Borough Engineer to certify, in writing, to the Borough Council
that such portion of the work upon the improvements has been completed
in accordance with the approved plat. Upon such certification, the
Borough Council shall authorize release by the bonding company or
lending institution of an amount as estimated by the Borough Engineer
fairly representing the value of the improvements completed, or, if
the Borough Council fails to act within said forty-five-day period,
the Borough Council shall be deemed to have approved the release of
funds as requested. The Borough Council may, prior to final release
at the time of completion and certification by its Engineer, require
retention of 10% of the estimated cost of the aforesaid improvements.
(11)
Where the Borough Council accepts dedication of all or some
of the required improvements following completion, the Borough Council
may require the posting of financial security to secure structural
integrity of said improvements as well as the functioning of said
improvements in accordance with the design and specifications as depicted
on the final plat for a term not to exceed 18 months from the date
of acceptance of dedication. Said financial security shall be of the
same type as otherwise required in this section with regard to installation
of such improvements, and the amount of the financial security shall
not exceed 15% of the actual cost of installation of said improvements.
(12)
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 and distinct from the Borough,
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.
(13)
If financial security has been provided in lieu of the completion
of improvements required as a condition for the final approval of
a plat as set forth in this section, the Borough shall not condition
the issuance of building, grading or other permits relating to the
erection or placement of improvements, including buildings, upon the
lots or land as depicted upon the final plat upon actual completion
of the improvements depicted upon the approved final plat. Moreover,
if said financial security has been provided, occupancy permits for
any building or buildings to be erected shall not be withheld following
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, as well as the completion of all other
improvements as depicted upon the approved plat, either upon the lot
or lots or beyond the lot or lots in question if such improvements
are necessary for the reasonable use of or occupancy of the building
or buildings.
B. Release from improvement bond.
(1) When the developer has completed all of the necessary and appropriate
improvements, the developer shall notify the Borough Council, in writing,
by certified or registered mail, of the completion of the aforesaid
improvements and shall send a copy thereof to the Borough Engineer.
The Borough Council shall, within 10 days after receipt of such notice,
direct and authorize the Borough Engineer to inspect all of the aforesaid
improvements. The Borough Engineer shall, thereupon, file a report,
in writing, with the Borough Council 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
Borough Engineer of the aforesaid authorization from the Borough Council;
said report shall be detailed and shall indicate approval or rejection
of said 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 Borough Engineer, said report shall contain a statement of
reasons for such nonapproval or rejection.
(2) The Borough Council 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 Borough Council with relation
thereto.
(3) If the Borough Council or the Borough Engineer fails to comply with
the time limitation provisions contained herein, all improvements
will be deemed to have been approved, and the developer shall be released
from all liability, pursuant to its performance guaranty bond or other
security agreement.
(4) If any portion of the said improvements shall not be approved or
shall be rejected by the Borough Council, 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 Borough Council or the Borough
Engineer.
(6) Where herein reference is made to the Borough Engineer, he shall
be as a consultant thereto.
(7) The applicant or developer shall reimburse the Borough for the reasonable
and necessary expense incurred for the inspection of improvements
according to a schedule of fees adopted by resolution of the Borough
Council and as from time to time amended. Such expense shall be reasonable
and in accordance with the ordinary and customary fees charged by
the Borough 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 Borough
when fees are not reimbursed or otherwise imposed on applicants.
(a)
In the event the applicant disputes the amount of any such expense
in connection with the inspection of improvements, the applicant shall,
within 10 working days of the date of billing, notify the Borough
that such expenses are disputed as unreasonable or unnecessary, in
which case the Borough shall not delay or disapprove a subdivision
or land development application or any approval or permit related
to development due to the applicant's request over disputed Engineer
expenses.
(b)
If, within 20 days from the date of billing, the Borough and
the applicant cannot agree on the amount of expenses which are reasonable
and necessary, then the applicant and the Borough 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.
(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 Borough and applicant cannot agree upon
the professional engineer to be appointed within 20 days of the billing
date, then, upon application of either party, the President Judge
of the Court of Common Pleas of the judicial district in which the
Borough 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 Borough Engineer nor any professional
engineer who has been retained by, or performed services for, the
Borough 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 Borough shall
pay the fee of the professional engineer, but otherwise, the Borough
and the applicant shall each pay 1/2 of the fee of the appointed professional
engineer.
C. Remedies to effect completion of improvements. 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 plat,
the Borough Council is hereby granted 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 Borough Council 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. 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
Borough purpose.