[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A. No plat shall be finally approved unless the streets shown have been improved to a mud-free or otherwise permanently passable condition, or improved as may be required by this chapter, and any walkways, curbs, gutters, streetlights, fire hydrants, shade trees, water mains, sanitary sewers, storm drains 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 required pursuant to Subsection
I of this section, this chapter provides for the deposit with the Borough of financial security in an amount sufficient to cover the costs of any improvements or common amenities, including but not limited to roads, stormwater detention and/or retention basins and other related drainage facilities, recreational facilities, open space improvements or buffer or screen plantings which may be required. The applicant shall not be required to provide financial security for the costs of any improvements for which financial security is required by and provided to the Department of Transportation in connection with the issuance of a highway occupancy permit pursuant to Section 420 of the Act of June 1, 1945 (P.L. 1242, No. 428), known as the “State Highway Law.”
B. When requested by the developer, in order to facilitate financing,
the Borough Council or the Planning Commission, if designated, 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. The amount of financial security required shall be based upon an
estimate of the cost of completion of the required 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 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.
H. 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.
I. In the
case where development is projected over a period of years, the Borough
Council may authorize submission of final plats by section 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.
J. 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 of, from time to time, such portions of the
financial security necessary for payment to the contractor or contractors
performing the work. Any such request 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, retain 10% of the original amount
of the posted financial security for the aforesaid improvements.
K. 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 dedicated improvements as well as the functioning of said dedicated
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 dedicated
improvements.
L. 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.
M. 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A. 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.
B. 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 the Borough Council with relation thereto.
C. 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.
D. 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.
E. 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.
F. Where
herein reference is made to the Borough Engineer, he shall be as a
consultant thereto.
G. The Borough
may prescribe that the applicant shall reimburse the Borough for the
reasonable and necessary expense incurred in connection with the inspection
of improvements. The applicant shall not be required to reimburse
the Borough Council for any inspection which is duplicative of inspections
conducted by other governmental agencies or public utilities. The
burden of proving that any inspection is duplicative shall be upon
the objecting applicant. Such reimbursement shall be based upon 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's professional 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 professional consultant to the Borough for comparable
services when fees are not reimbursed or otherwise imposed on applicants.
(1) The
Borough Council shall submit to the applicant an itemized bill showing
the work performed in connection with the inspection of improvements
performed, identifying the person performing the services and the
time and date spent for each task. In the event the applicant disputes
the amount of any such expense in connection with the inspection of
improvements, the applicant shall, no later than 100 days after the
date of transmittal of a bill for inspection services, notify the
Borough and the Borough's professional consultant that such inspection
expenses are disputed as unreasonable or unnecessary and shall explain
the basis of their objections to the fees charged, in which case the
Borough shall not delay or disapprove a request for release of financial
security, a subdivision or land development application or any approval
or permit related to development due to the applicant's dispute of
inspection expenses. Failure of the applicant to dispute a bill within
100 days shall be a waiver of the applicant's right to arbitration
of that bill under this section.
(2) Subsequent
to the final release of financial security for completion of improvements
for a subdivision or land development or any phase thereof, the professional
consultant shall submit to the Borough Council a bill for inspection
services, specifically designated as a final bill, which the Borough
Council shall submit to the applicant. The final bill shall include
inspection fees incurred through the release of financial security.
(3) If
the professional consultant and the applicant cannot agree on the
amount of expenses which are reasonable and necessary, then the applicant
shall have the right, within 100 days of the transmittal of the final
bill or supplement to the final bill to the applicant, to request
the appointment of another professional consultant to serve as an
arbitrator. The applicant and professional consultant whose fees are
being challenged shall, by mutual agreement, appoint another professional
consultant to review any bills the applicant has disputed and which
remain unresolved and make a determination as to the amount thereof
which is reasonable and necessary. The arbitrator shall be of the
same profession as the professional consultant whose fees are being
challenged.
(4) The
arbitrator so appointed shall hear such evidence and review such documentation
as the arbitrator in his or her sole opinion deems necessary and shall
render a decision no later than 50 days after the date of appointment.
Based on the decision of the arbitrator, the applicant or the professional
consultant whose fees were challenged shall be required to pay any
amounts necessary to implement the decision within 60 days. In the
event the Borough has paid the professional consultant an amount in
excess of the amount determined to be reasonable and necessary, the
professional consultant shall within 60 days reimburse the excess
payment.
(5) In
the event that the Borough's professional consultant and applicant
cannot agree upon the arbitrator to be appointed within 20 days of
the request for appointment of an arbitrator, 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 arbitrator, who, in that case, shall
be neither the Borough's professional consultant nor any professional
consultant who has been retained by, or performed services for, the
Borough or the applicant within the preceding five years.
(6) The
fee of the arbitrator shall be paid by the applicant if the disputed
fee is upheld by the arbitrator. The fee of the arbitrator shall be
paid by the charging party if the disputed fee is $2,500 or greater
than the payment decided by the arbitrator. The fee of the arbitrator
shall be paid in an equal amount by the applicant and the charging
party if the disputed fee is less than $2,500 of the payment decided
by the arbitrator.
(7) In
the event that the disputed fees have been paid and the arbitrator
finds that the disputed fees are unreasonable or excessive by more
than $10,000, the arbitrator shall:
(a) Award the amount of the fees found to be unreasonable or excessive
to the party that paid the disputed fee; and
(b) Impose a surcharge of 4% of the amount found as unreasonable or excessive
to be paid to the party that paid the disputed fee.
(8) The
Borough or the applicant shall have 100 days after paying a fee to
dispute any fee charged as being unreasonable or excessive.
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 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.