In all cases the applicant shall be responsible to pay for the
cost of installation of all required improvements under supervision
of the Borough and in the manner specified by the Borough Council
and/or in accordance with Sections 509 and 510 of the Pennsylvania
MPC, as amended and supplemented from time to time.[1]
[1]
Editor's Note: See 53 P.S. §§ 10509 and 10510.
No final plan shall be approved by the Borough Council until
a provision has been made by the applicant for the proper installation
of required improvements in either of the following ways, in accordance
with the requirements of the Pennsylvania MPC:
A.
Construction of improvements.
(1)
The applicant may elect to physically install prior to final plan approval all of the required improvements in accordance with the standards and specifications contained in this article and with the final plan submitted to the Borough Council, provided that such final plan has been conditionally approved by the Borough Council subject to the construction of improvements as required herein and subject to the execution of a development agreement set forth in § 220-25.
(2)
During construction of all improvements, the Borough Engineer and
Borough staff shall be authorized by the Borough Council to inspect
said improvements and shall certify if all improvements have been
installed in accordance with this chapter. Upon receipt of such a
certification, the Borough Council may then proceed to approval of
the final plan.
B.
Financial security.
(1)
In lieu of § 220-23A above, the applicant shall deposit with the Borough in which the subdivision or land development is located sufficient financial security to secure to the public the completion of all of the required improvements within one year of the proposed completion date that is set forth in the subdivision plan and in the development agreement referred to below in accordance with the requirements of the Pennsylvania MPC.
(2)
Said financial security shall be provided by posting a bond with
a bonding company or with a federal or commonwealth chartered lending
institution. The amount of said financial security shall be equal
to 110% of the cost of completion of the required improvements estimated
as of 90 days following the date scheduled for completion by the applicant.
(3)
Said estimate shall be prepared and may be revised annually as set
forth in the Pennsylvania MPC. Said amount of security may be increased
by the Borough Council by an additional 10% for each one-year period
beyond the first anniversary date for the initial posting of the financial
security.
(4)
The provision of such financial security may be made available by
the applicant in accordance with any staging plans approved by the
Borough Council.
(5)
Notwithstanding the submission of said financial security as required
herein, no occupied structure within the proposed subdivision or land
development shall be without suitable street access improved with
at least the required base, curbs, gutters and utilities for a period
of time longer than six months.
A.
Where the Borough accepts dedication of any required improvements,
the Borough may require the posting of financial security to secure
the structural integrity and functioning of said improvements in accordance
with the design and specifications approved in the final plan for
a term not to exceed 18 months from the date of acceptance of dedication.
B.
Financial security for maintenance shall be posted as required by § 220-23B in the amount of up to 15% of the actual cost of the installation of said improvements, as required by the Borough accepting dedication of the required improvement. Financial security for maintenance of improvements installed under the jurisdiction and rules of a public utility or a municipal authority shall be posted in accordance with the requirements of said public utility or municipal authority or other appropriate agency and shall not be included in the financial security posted with the Borough.
A.
All applicants proposing any subdivision or land development requiring
the installation of improvements as required herein shall be required
to enter into a legally binding development agreement with the Borough
guaranteeing the installation of said improvements in accordance with
this chapter. The development agreement shall be in form suitable
for execution by the Borough, and it shall consist of the following
where applicable:
(1)
The construction authorized by the approved final plan or, in the case where § 220-23A applies, in accordance with the conditionally approved final plan.
(2)
Construction of streets with any other required improvements.
(3)
Installation of utility lines.
(4)
Installation of streetlighting poles and underground streetlighting
cable.
(5)
Dedication of streets, transfer of water and sewer lines and easements
to the Borough.
(6)
Prevention of erosion and water damage to adjacent property.
(7)
Applicant's responsibilities for damage to other property.
(8)
The responsibility for providing necessary inspections to ensure
compliance with this chapter shall be clearly identified.
(9)
A work schedule, including beginning and ending dates, for improvements
contained herein.
(10)
All planning, engineering, inspection, legal service and other
professional consultant costs incurred or to be incurred by the Borough,
including cost of preparing the development agreement, shall be identified
and that amount agreed upon for payment by the applicant on a regular
basis.
(11)
Posting of the required financial security to insure completion of all of the required improvements in accordance with § 220-23B.
(12)
Where the Borough accepts dedication of any required improvement, posting of the financial security may be required by the Borough Council to secure the structural integrity and the functioning of said improvement in accordance with § 220-24.
(13)
The developer/applicant shall provide the Borough with two sets
of reproducible "as built" plans, including all improvements that
are properly referenced to identify specific locations.
(14)
Provisions for violation of the development agreement.
(15)
The applicant shall secure or maintain public liability insurance.
(16)
A save harmless clause.
(17)
Liability of applicant during warranty period.
(18)
Other requirements to assure compliance with this chapter.
The financial security provided by the applicant for the completion
of all improvements shall be released as follows:
A.
When the applicant has completed all of the necessary and approved
improvements, he shall so notify the Borough in writing and send a
copy to the Borough Engineer.
B.
Within 10 days of receipt of such notice, the Borough shall direct
and authorize the Borough Engineer to inspect all of the improvements.
C.
The Borough Engineer shall then file a written report with the Borough
and shall mail a copy to the applicant within 30 days after his/her
receipt of authorization to inspect all improvements. Said reports
shall be detailed and shall indicate approval or rejection of said
improvements, either in whole or in part, with a statement of reasons
for any nonapproval or rejection.
D.
The Borough shall notify the applicant in writing of its action in
relation to the improvements provided.
E.
If the Borough Council or the Borough Engineer fail to comply with
the above time limits, all improvements will be deemed to have been
approved and the applicant shall be released from all liability pursuant
to its financial security.
F.
Any improvements not approved or rejected by the Borough shall be
expeditiously completed by the applicant, and upon completion, the
same notification procedure as above shall be followed.
G.
If any required improvement has not been installed as required by
this chapter, by the approved final plan or by the executed development
agreement, then the Borough shall enforce the financial security posted
by appropriate legal and equitable remedies. If the proceeds of such
financial security are insufficient to pay the cost of installing
or making repairs or corrections to the required improvements, the
Borough may, at its option, install part of such improvements and
may institute appropriate legal or equitable action to recover the
monies necessary to complete the remainder.
The financial security for maintenance to secure structural
integrity of said improvements as well as the functioning of said
improvements in accordance with the design and specifications as depicted
in the final plat shall remain in effect for a term of 18 months after
acceptance of dedication by the Borough or other appropriate agency.
Said release shall be effected utilizing the following procedures:
A.
If at the end of 18 months subsequent to the acceptance of the dedication
by the Borough or other appropriate agency there has been no claim
in relation to the financial security and/or if all claims have been
resolved and repairs and corrections made, applicant shall so notify
the Borough in writing and request the release thereof.
B.
Within 10 days of receipt of such notice, the Borough shall direct
and authorize the Borough Engineer to inspect all of the improvements.
C.
The Borough Engineer shall then file a written report with the Borough
and shall mail a copy to the applicant within 20 days after his/her
receipt of authorization to inspect all improvements. Said report
shall be detailed and shall indicate the condition of the improvements.
D.
Upon receipt of the written report, the Borough shall notify the
applicant of any action or requests in relation to the improvements
secured as to structural integrity as well as the functioning of said
improvements or, as applicable, shall release the applicant from all
liability pursuant to its financial security.
E.
If the Borough Council or the Borough Engineer fail to comply with
the above time limits, all improvements will be deemed to have been
approved as to structural integrity as well as the functioning of
said improvements in accordance with the design and specifications
as depicted in the final plat during the eighteen-month term from
date of acceptance of the dedication, and the applicant shall be released
from all liability pursuant to its financial security.
F.
Any improvements not approved as to structural integrity as well
as the functioning of said improvements in accordance with the design
and specifications as depicted in the final plat during the eighteen-month
term by the Borough shall be expeditiously repaired or corrections
made by the applicant.
G.
If any repair has not been completed or corrections made and if adequate
provision and security to assure the repair thereof or corrections
thereto have not been made by the applicant, the Borough shall enforce
the financial security posted by appropriate legal and equitable remedies.
If the proceeds of such financial security are insufficient to pay
the cost of making repairs or corrections to the improvements, the
Borough may, at its option, make such repairs and corrections and
may institute appropriate legal or equitable action to recover the
monies necessary to complete the repairs and corrections.
The provisions of this Article VIII may be waived by the Borough Council only for the following types of subdivisions if the Borough Council determines and makes a finding in writing, with the appropriate reasons set forth, that conformance to said sections are not required to ensure the proper completion of the subdivision in accordance with the intent and objectives of this chapter.
A.
Minor subdivisions and/or land developments not involving the provisions
of any new streets, easements for access or other public improvements.
B.
Subdivision to be served by a private street as permitted herein,
which is not subject to future extension and where such private street
serves no more than six dwelling units. The above exemption shall
not apply if it includes only the partial or staged development of
a tract where the size, number of lots or provision of new streets
for the entire development exceeds the limits set forth above.
The Borough may enter into a cooperation agreement clearly setting forth the responsibilities of each party with respect to the installation of required improvements in the Borough. Said cooperation agreement, if it differs from the procedures set forth in this Article VIII shall prevail and supersede any of the applicable specific requirements contained herein.
All improvements constructed as required by this chapter that
will not be publicly dedicated or accepted for dedication shall also
meet the following requirements:
A.
Ownership and maintenance responsibility/entity. A viable entity
responsible for ownership and maintenance of all nondedicated improvements
shall be established by the developer and approved by the Borough
Council and the Borough. Ownership and maintenance responsibilities
may be assigned to either the developer or among the property owners
or an association of property owners within the subdivision or land
development.
B.
Improvements benefiting multiple lots. For all nondedicated improvements
that will not be owned and maintained by the developer and are situated
on an individual lot or a series of contiguous lots but serve multiple
lots, units or the entire subdivision or land development (i.e., stormwater
management ponds), the responsibility for ownership and maintenance
of such improvements shall be borne by all lot owners benefiting or
served and not solely the lot owner on whose lot said improvements
are situated.
C.
Ownership and maintenance agreement. A private agreement suitable
for recording in the Mifflin County Recorder of Deeds office shall
be prepared, properly executed, and recorded with the final subdivision
or land development plan and shall run with the land and shall clearly
identify the individual or entity responsible for the ownership and
maintenance of nondedicated improvements. Said agreement shall be
reviewed and approved by the Borough Council and Borough Solicitor
and, at a minimum, shall stipulate the following:
(1)
That the owners, an association of property owners, their successors
and assigns shall keep all improvements in a safe and attractive manner,
and the owner shall convey to the Borough easements and/or rights-of-way
to assure access for periodic inspections by the Borough and maintenance,
if required.
(2)
That if the owners, association of property owners, their successors
and assigns fail to maintain the improvements following due notice
by the Borough to correct the problems, the Borough may perform the
necessary work or corrective action. The owners or association of
property owners shall reimburse the Borough for these services.
(3)
In the event the Borough performs work of any nature or expends any
funds in performance of said work for labor, use of equipment, supplies,
materials, and the like on account of the failure to perform such
work, the owners, association of property owners, their successors
and assigns shall reimburse the Borough upon demand within 30 days
of receipt of the invoice thereof for all costs incurred by the Borough.
If not paid within said thirty-day period, the Borough may file a
municipal claim and enter a municipal lien against the property per
the law in relation to municipal claims, 53 P.S. § 7101
et seq., as amended from time to time, in the amount of such costs
or may proceed to recover its costs through proceedings in equity
or at law as authorized under the provisions of the Borough Code,
8 Pa.C.S.A. § 101 et seq., as it may be amended from time
to time, and/or otherwise per law.
D.
Deed reference. All deeds created for lots that contain nondedicated
improvements shall make clear and specific reference as to the following:
(1)
Description of all improvements not dedicated;
(4)
Terms and conditions of the required maintenance;
(5)
That no improvements shall be eliminated or altered without the written
approval of the Borough;
(6)
That in the event improvements are altered, eliminated or improperly
maintained the Borough may prescribe necessary corrective measures
and a reasonable time period to perform such work and that, if such
action is not taken in the time period specified, the Borough may
cause the work to be performed and invoice the ownership and maintenance
entity. If not paid within said period, the Borough may file a municipal
claim and enter a municipal lien against the property per the law
in relation to municipal claims, 53 P.S. § 7101 et seq.,
as amended from time to time, in the amount of such costs or may proceed
to recover its costs through proceedings in equity or at law as authorized
under the provisions of the Borough Code, 8 Pa.C.S.A. § 101
et seq., as it may be amended from time to time, and/or otherwise
per law; and
(7)
That all improvements not offered for dedication may be offered in
the future if said improvements meet the minimum standards of this
and/or applicable Borough ordinances in effect at the time the offer
of dedication is made. If the improvements do not conform to the minimum
standards in effect, the Borough shall have no obligation to accept
said improvements until such time as the improvements are improved
to meet said standards, all costs of which shall be borne by the owner,
association of property owners, their successors and assigns.
