Borough of Dublin, PA ADMINISTRATION

[Ord. 154, 9/3/1985, § 402; as amended by Ord. 189, 9/5/1989, § 4; by Ord. 256, 5/24/2004; and by Ord. 264, 6/13/2005, § 2]

Improvements. Before approving any subdivision or land development plan for recording, the Borough Council shall either require that the necessary grading, paving, and other improvements as herein specified shall have been installed in strict accordance with the standards and specifications of the Borough, or that the Borough Council be assured by means of a proper contract and completion guarantee, as set forth in § 22-403, Subsection 2, hereof, that the improvements will subsequently be installed by the developer. Where the subdivision or land development plan has been approved and recorded, either after the specified improvements have been completed and approved by the Borough, or, if prior to completion, upon proper completion guarantee as aforesaid, purchasers and mortgagees of lots in the subdivision or land development, with or without buildings thereon or on any of them, shall be relieved of any and all liability for any deficiency in lack of or failure to complete the improvements above mentioned as set forth in said plan or required as a condition precedent to the approval of the plan of subdivision or land development and any failure to complete or properly complete said improvements shall not encumber any or all of the lots in the subdivision or land development.

Contracts. In all cases where the necessary grading, paving, and other improvements required herein, both on-site and off-site, shall not have been installed in strict accordance with the standards and specifications of the Borough prior to approval of the final plan, the developers shall enter into a written agreement with the Borough in the manner and form approved by the Borough Solicitor, wherein the developer shall agree, to the extent applicable:

To construct or cause to be constructed at his own expense all streets, street signs, curbs, sidewalks, street and buffer plantings, street lights, fire hydrants, water supply system, sanitary sewer system (including capped sewers), storm sewers, drainage and erosion control improvements, gutters, shade trees, buffer or screen plantings, open space improvements, recreational facilities, stormwater detention and/or retention facilities, and other improvements shown on said subdivision or land development plan, all in strict accordance with the standards and specifications of the Borough and within the time specified in said agreement, and pay such fees as may be required under § 509(i) of the Municipalities Planning Code, 53 P.S. § 10509(i).

To make adequate provisions with the Borough Engineer for the inspection of the construction of the aforesaid improvements to assure strict compliance with Borough standards and specifications.

To maintain, repair and replace at his own cost the said streets, street signs, curbs, sidewalks, street and buffer plantings, street lights, fire hydrants, water supply systems, sanitary sewers (including capped sewers) storm sewers, drainage and erosion control improvements, gutters, shade trees, buffer or screen plantings, open space improvements, recreational facilities, stormwater detention and/or retention facilities, and other improvements for the period of two years after completion of all required improvements. The date of completion shall be established by certificate of the Borough Engineer.

To pay all costs, charges or rates of the utility furnishing electric service for the street lighting facilities installed by the developer until such time as the streets shown on the subdivision and/or land development plan shall have been accepted or condemned by the Borough for public use, and to indemnify and save harmless the Borough from and against all suits, actions, claims, and demands for electric service as aforesaid, or any part thereof, to the time that said streets shall be accepted or condemned as public streets in the manner hereinabove set forth.

To post contemporaneously with the execution of such agreement financial security in an amount sufficient to cover the cost 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 as well as the improvements mentioned in § 22-402, Subsection 2C, above. 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 § 402 of the Act of June 1, 1945 (P.L. 1242, No. 428), known as the "State Highway Law," 36 P.S. § 670-420.

(1)

Acceptable Security. The owner shall be permitted to submit financial security which includes federal or Commonwealth of Pennsylvania chartered lending institution irrevocable letters of credit irrevocable and (except as provided for in the development contract) unconditional for the entire term of the developer's obligation, plus 90 days, and restrictive or escrow accounts in such lending institutions which shall be deemed acceptable financial security for the purposes of this section. Such financial security shall be posted with the bonding company or a federal or commonwealth chartered lending institution chosen by the party posting the financial security, provided such bonding company or lending institution is authorized to conduct such business within the commonwealth. Such bond or other security shall provide for and secure to the public the completion of any improvements which may be required within one year of the date fixed in the subdivision plan or land development plan for completion of such improvements. The procedure of § 509(b) of the Municipalities Planning Code, 53 P.S. § 10509(b), may be utilized for evidence of contingent final plat approval.

(2)

Amount of Security.

(a)

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 ninetieth 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.

(b)

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.

(3)

Increase in Amount of Security. If the party posting the financial security requires more than one year from the date of posting of 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 the 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.

(4)

Completion in Stages. In the case where development is projected over a period of years, the Borough may authorize submission of final plans or land development plans 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.

(5)

Release of Escrow. As the work of installing the required improvements proceeds, the party posting the financial security may request the Borough 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 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 that such portion of the work upon the improvements has been completed in accordance with the approved plan. Upon such certification, the Borough 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 fails to act within said forty-five-day period, the Borough shall be deemed to have approved the release of funds as requested.

(6)

Retention of 10%. The Borough 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.

(7)

Maintenance Guarantee. Where the Borough Council accepts dedication of all or some of the required improvements following completion, the governing body 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 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.

(8)

Water and Sewer Lines. 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.

(9)

Permits. 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.

To obtain the easements and releases required by this chapter.

To reimburse the Borough promptly for reasonable attorney's and engineer's inspection fees and fees for other professionals employed by the Borough to review or process subdivision and land development plans.

Release From Improvement Bond. When the developer has completed all of the necessary and appropriate improvements, the developer shall notify the Borough, in writing, by certified or registered mail, of the completion of the required improvements and shall send a copy thereof to the Borough Engineer(s). The Borough shall, within 10 days after receipt of such notice, direct and authorize the Borough Engineer(s) to inspect all of the required improvements. The Borough Engineer(s) shall, thereupon, file a report, in writing, with the Borough 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(s) of the aforesaid authorization from the Borough; and 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(s), said report shall contain a statement of reasons for such non-approval or rejection.

The Borough 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 with relation thereto.

If the Borough or the Borough Engineer(s) fails to comply within the time limitation provisions contained within these regulations, 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.

If any portion of said improvements shall not be approved or shall be rejected by the Borough, the developer shall proceed to complete the same, and, upon completion, the same procedure of notification, as outlined above, shall be followed.

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 or the Borough Engineer.

Where reference is made herein to the Borough Engineer, he shall be as a consultant thereto.

Expenses and Disputes.

Applicant shall reimburse the Borough for the reasonable and necessary expenses incurred for the inspection 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 Borough Engineer or professional consultant for work performed for similar services to the Borough. In no event shall the fees exceed the rate of cost charged by the professional consultant to the Borough when fees are not reimbursed or otherwise imposed on applicants.

Applicants shall not be required to reimburse the governing body 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 applicant.

The governing body 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.

No later than 30 days after the date of transmittal of a bill for inspection services, the applicant shall notify the municipality and the municipality's professional consultant that such inspection expenses are disputed as unreasonable or unnecessary and shall explain the basis of their objection to the fees charged, in which case the municipality shall not delay or disapprove a request for release of financial security, subdivision and 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 30 days shall be a waiver of the applicant's right to arbitration of that bill as provided hereunder.

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 governing body a bill for inspection services, specifically designated as a final bill. The final bill shall include inspection fees incurred through the release of financial security.

_____

(1)

If within 20 days from the date of billing 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 45 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 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.

(2)

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 upon 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 municipality 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.

(3)

In the event that the municipality's professional consultant and applicant cannot agree upon the arbitrator to be appointed within 20 days of the request for an appointment of an arbitrator, then, upon application of either party, the President Judge of the Court of Common Pleas of Bucks County, Pennsylvania, shall appoint such arbitrator, who, in that case, shall be neither the municipality's professional consultant nor any professional consultant who has been retained by, or performed services for, the municipality or the applicant within the proceeding five years.

(4)

The fee of the arbitrator shall be paid by the applicant if the review fee charged is sustained by the arbitrator, otherwise it shall be divided equally between the parties. If the disputed fees are found to be excessive by more than $5,000, the arbitrator shall have the discretion to assess the arbitration fee in whole or in part against either the applicant or the professional consultant. The Borough of Dublin and the professional consultant whose fees are the subject of the dispute shall be party to the proceeding.

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, Dublin 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 Dublin 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.

Dublin Borough Council may grant a modification of the requirements of one or more provisions if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question; provided, that such modification will not be contrary to the public interest and that the purpose and intent of the chapter is observed.

All requests for a modification shall be in writing and shall accompany and be a part of the application for development. The request shall state in full the grounds and facts of unreasonableness or hardship on which the request is based, the provision or provisions of the ordinance involved and the minimum modification necessary.

Initially, the request for modification is referred to the planning agency for advisory comments.

The planning agency shall keep a written record of all action on all requests for modification.

Penalties. The provisions of this section shall not relieve the developer from the penalties provided for in the Pennsylvania Municipalities Planning Code or this chapter.