[Ord. 712, passed 12-4-2006]
For the purpose of this chapter, the following definitions shall
apply unless the context clearly indicates or requires a different
meaning.
Persons or entities who provide expert or professional advice,
including, but not limited to, architects, attorneys, certified public
accountants, engineers, geologists, land surveyors, landscape architects
or planners.
[Ord. 712, passed 12-4-2006]
(A)
At the time of the filing of an application for sketch, preliminary
or final plan review or approval, for, or in connection with, any
subdivision and/or land development, the applicant shall pay to the
Borough, an application fee, which shall be considered a part of the
application. In addition, the applicant shall post a cash escrow with
the Borough to be held and used by the Borough for the payment (including
reimbursement to the Borough) of the costs and charges of review of
the application by the Borough's professional consultants. The
application fee and the escrow amount shall be as established by resolution
by the Borough Council, from time to time. Failure to remit the application
fee and/or post the escrow shall render the application incomplete
and shall be cause for its rejection.
(B)
The Borough may require, as part of the application, the execution
of an escrow or professional services agreement, memorializing the
applicant's responsibility to pay for, or reimburse, the costs
and charges of the Borough's professional consultants.
(C)
Review fees, which are established by resolution by the Borough Council,
from time to time, may include reasonable and necessary charges by
the Borough's professional consultants for review and report
on applications to the Borough. Such review fees shall be reasonable
and in accordance with the ordinary and customary charges for similar
services in the community, but in no event shall the fees exceed the
rate or cost charged by the professional consultant for comparable
services to the Borough for services which are not reimbursed or otherwise
imposed on an applicant. Fees charged to the Borough relating to any
appeal of a decision on an application shall not be considered review
fees and may not be charged to an applicant.
(D)
The Borough shall submit to the applicant an itemized bill(s) of
review fees and charges showing, in each instance, the work performed,
identifying the person performing the services and the date of and
time spent for each task. Interim itemized billing is permitted. Subject
to the provisions herein, bill(s) for review of an application shall
be due upon presentation.
(E)
Subsequent to a decision on an application, the Borough shall submit
to the applicant, an itemized bill for review fees specifically designated
as a "final bill." The "final bill" shall include all review fees
and expenses incurred at least through the date of the decision on
the application, which have not yet been submitted to the applicant.
If, for any reason, additional review is required subsequent to the
decision, including inspections and other work to satisfy the conditions
of the approval, the review fees shall be charged to the applicant
as a "supplement to the final bill."
(F)
In the event that the applicant disputes the amount of any review
fees, the applicant shall, no later than 45 days after the date of
the transmittal of the bill to the applicant, notify the Borough and
the professional consultant that such fees are disputed and the applicant
shall explain the basis of the objections to the fees charged. The
Borough shall not delay or disapprove a subdivision and/or land development
application due to the applicant's dispute over such fees.
(1)
In the event that the professional consultant and the applicant
cannot agree on the amount of review fees and expenses that are reasonable
and necessary, then the applicant and the Borough shall follow the
procedures provided for dispute resolution set forth herein.
(2)
The applicant's failure or refusal to timely comply with
the dispute resolution provisions herein, shall act as a waiver of
the applicant's right to arbitration of the bill, and the Borough
may use any remaining escrow to pay the bill or reimburse payment
of the bill, as the case may be, and the Borough may take such other
action as provided by law.
[Ord. 712, passed 12-4-2006]
(A)
When an applicant has properly and timely disputed fees of the Borough's
professional consultant, as set forth herein, and is thereafter unable
to resolve the dispute, then the applicant shall have the right, within
45 days of the transmittal of the disputed final bill, or supplement
to the final bill, 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 the other professional consultant to review any bills the
applicant has disputed, 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 or discipline as the professional
consultant whose fees are being disputed.
(B)
In the event that the Borough's professional consultant and
the applicant cannot agree upon the arbitrator to be appointed within
20 days of the request for the applicant's request for the appointment
of an arbitrator, then, upon application of either party, the President
Judge (or if at the time there is no President Judge, the senior active
Judge) of the Court of Common Pleas of Delaware County, 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.
(C)
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
the arbitrator's appointment. Based on the decision of the arbitrator,
the applicant or the professional consultant whose fees are challenged
shall be required to pay or credit, as the case may be, any amounts
necessary to implement the arbitrator's decision within 60 days
of the date of the decision. In the event that the Borough has paid
the professional consultant an amount determined by the arbitrator
to be in excess of the reasonable and necessary fees, the professional
consultant shall, within 60 days of the arbitrator's decision,
reimburse the Borough for any excess payment.
(D)
The fee of the arbitrator shall be paid by the applicant if the disputed
review or processing fee charged is sustained by the arbitrator; otherwise
it shall be equally divided 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
and the professional consultant whose fees are the subject of the
dispute shall be party to the arbitration proceedings.
(E)
The professional consultant whose fees are being challenged shall
not charge the Borough or the applicant for the cost of the professional
consultant's preparation for, or participation in, the arbitration.
[Ord. 712, passed 12-4-2006]
All fees or charges charged to the Borough by the Borough's
professional consultants, related to the preparation and review of
land development agreements, financial security agreements, maintenance
agreements, maintenance security, dedication and/or other similar
matters, which are incurred as a result of a subdivision and/or land
development application or implementation, and which would otherwise
not be incurred by the Borough but for the application, shall be considered
review fees.
[Ord. 712, passed 12-4-2006]
This chapter shall not be applied retroactively to any fees
or charges of the Borough's professional consultants, or dispute(s)
filed in connection therewith, prior to the effective date of this
chapter. This chapter shall not act to amend, alter or modify any
agreement regarding the charging, payment or reimbursement of fees
of the Borough's professional consultants, which predates the
effective date of this chapter.
