It is the intent of this article to establish uniform specifications to guarantee the completion of quality improvements associated with subdivision and land development.
A.
Physical improvements to the property being subdivided shall be provided, constructed, and installed as shown on the record plan, in accordance with the requirements of the Borough.
B.
Prior to final plan approval by the Borough Planning Commission, the applicant shall agree with the Borough as to installations of all improvements shown on the plan and required by this chapter according to § 375-56, Subdivision and land development agreement.
C.
Supervision of the installation of improvements, required by the subdivision and land development agreement, shall in all cases be the responsibility of the Borough or of the appropriate state regulatory agency. If such supervision reveals that work is not in accordance with approved plans and specifications or that construction is not being done in a workmanlike manner, said representative is empowered to stop work and/or to require corrections to be made. The developer shall notify the Borough of the schedule of anticipated road or other improvement construction.
D.
The applicant shall guarantee completion of all improvements by means of a type of financial security acceptable to the Borough as specified in § 375-57, Performance guarantee.
E.
The applicant shall be released from the performance guarantee in manner described in and upon meeting the terms of § 375-58, Release of performance guarantee.
F.
The developer shall be responsible for maintenance of all public improvements until such improvements are offered for dedication and accepted by the Borough.
The applicant shall execute a Subdivision Improvement Agreement (Form LSR-4) to be approved by the Borough before the final plan is released by the Borough Council and filed on record. Said agreement shall specify the following, where applicable:
A.
The applicant agrees that he will lay out and construct all streets and other improvements, including grading, paving, curbs, gutters, sidewalks, streetlights, fire hydrants, water mains, street signs, shade trees, storm and sanitary sewers, landscaping, traffic control devices, open space areas, erosion and sediment control measures, and any other improvements, in accordance with the final plan as approved, where any or all of these improvements are required as conditions of approval;
B.
The applicant guarantees completion and maintenance of all improvements by means of a type of financial security acceptable to the Borough, as specified in § 375-57, Performance guarantees, of this chapter;
C.
The applicant agrees to tender a deed or deeds of dedication to the Borough for such streets and for such easements for sanitary and storm sewers, sidewalks, and other public improvements, provided that the Borough shall not accept dedication of such improvements until their completion is certified as satisfactory by the Borough Engineer or representing agent; and
D.
The Borough Council shall require the applicant to submit, and also record with the plan, a copy of an agreement made with the Borough Council on behalf of himself and his heirs and assigns, and signed by the applicant, and which shall establish the dedication of all streets to the Borough. The agreement shall stipulate, among other things:
A.
The applicant shall deposit with the Borough financial security in an amount sufficient to cover the cost of all improvements, both public and private, and common amenities, including but not limited to streets and roads, walkways, curbs, gutters, streetlights, shade trees, stormwater detention and/or retention facilities, pipes and other related drainage facilities, buffer or screen plantings, recreational facilities, open space improvements, water mains and other water supply facilities, fire hydrants and sanitary sewage disposal mains and other sewage disposal facilities.
B.
Financial security required herein shall be in the form of a federal- or commonwealth-chartered lending institution irrevocable letter of credit, restrictive or escrow account in such institution or with a financially responsible bonding company, or such other type of financial security which the Borough may, in its reasonable discretion, approve. The bonding company may be chosen by the party posting the financial security, provided that the said bonding company or lending institution is deemed acceptable by the Borough in terms of being financially responsible, is authorized to conduct business within the Commonwealth of Pennsylvania, stipulates that it will submit to Pennsylvania jurisdiction and Chester County venue in the event of legal action, and will, at the time of giving the bond, designate its agent for accepting service in Pennsylvania.
C.
When requested by the developer in order to facilitate financing, Borough Council shall furnish the developer with a signed copy of a resolution indicating approval of the final plan contingent upon the developer obtaining a satisfactory financial security. The final plan 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 Board; such extension shall not be unreasonably withheld and shall be placed in writing at the request of the developer.
D.
The said financial security shall provide for, and secure to the public, the completion of all subdivision improvements for which such security is being posted within one year of the date fixed in the subdivision plan or subdivision agreement for completion of such improvements.
E.
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 financial security by comparing the actual costs 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 rescheduled date of completion. Subsequent to said adjustment, the Borough may require the developer to post additional security in order to ensure that the financial security equals said 110%. Any additional security shall be posted by the developer in accordance with this section.
F.
The amount of financial security required shall be based upon an estimate of the cost of the completion for the required improvements, submitted by an applicant or developer and prepared by a professional engineer licensed as such by the Commonwealth of Pennsylvania and certified by such engineer to be a fair and reasonable estimate of such costs. Borough Council, upon 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 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 service of said engineer shall be paid equally by the Borough and the applicant or developer.
G.
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 shall 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.
H.
In the case where development is projected over a period of years, the Borough Council may authorize submission of final 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.
I.
As the work of installing the required improvements proceeds, the applicant posting the 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 performing the work. Any such requests shall be addressed, in writing, 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, that such portion of the work upon the improvements has been completed in accordance with the approved plans. Upon such certification, the Board 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. The Borough Engineer, in certifying the completion of work for a partial release, shall certify to the Borough Council his independent evaluation of the proper amount of partial releases. The Borough Council may, prior to final release at the time of completion and certification by the Borough Engineer, retain 10% of the original amount of the posted financial security for the aforementioned improvements.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
J.
Remedies to effect completion of improvements. In the event of default under a performance guarantee, the Borough may enforce any security by appropriate legal and equitable remedies. The proceeds of the performance guarantee received by the Borough may be used to construct and install the improvements. If the cost of the improvements exceeds the amount of the performance guarantee, the applicant shall be liable for the amount in excess of the amount which the Borough has expended for such improvements. In the case that the amount of the performance guarantee exceeds the actual cost of improvements made, the Borough shall return the unused sum to the surety or the person who has paid or deposited the performance guarantee.
When the developer has completed all of the necessary and appropriate improvements and has delivered a corrected copy of the Final plan according to § 375-21, the applicant or his/her agent 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.
A.
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, in writing, by certified or registered mail of their action.
C.
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.
A.
Upon completion of any public improvement shown on an approved subdivision plan and within 90 days after approval of such public improvements as herein provided, the developer shall submit written offer of such public improvements for dedication to the Borough. The offer shall include a deed of dedication covering said public improvements, together with satisfactory proof establishing the developer's clear title to said property. Such documents are to be filed with the Borough for review by the Borough Solicitor. Deeds of dedication for public improvements may be accepted by resolution of the Council at a regular meeting thereof. The Council may require that at least 50% of the lots in any approved subdivision or development (or phase thereof, if final plan approval has been in phases) have certificate of occupancy or dwellings occupied thereon prior to acceptance of dedication. Should the above-mentioned roads or streets, even though constructed according to these specifications, deteriorate before the said 50% of the lots have dwellings occupied thereon, such roads or streets shall be repaired in a manner acceptable to the Council before being accepted by the Borough.
B.
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 or withhold the following:
(1)
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 plan upon actual completion of the improvements depicted upon the approved final plan.
(2)
The issuance of use and occupancy permits for any building or buildings to be erected following:
(a)
The improvements 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.
(b)
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 or occupancy of the building or buildings.
C.
If the developer fails to offer dedication of said improvements, then the Borough Council may, in addition to any other remedies provided by law, require the developer, or his heirs, successors, executors, or assigns, to make an offer of dedication at any time in the future so that the best interests of the Borough are served by the dedication and acceptance of the public improvements.
D.
The Borough shall have no obligation to take over and make public any street, other improvement or park unless:
(1)
The required improvements, utility mains and laterals, have been certified by the Borough Engineer as having been constructed in accordance with the provisions of this chapter.
(2)
It is established to the satisfaction of the Borough Council that there exists a need for the improvements to be taken over and made public.
E.
The Borough shall have no responsibility with respect to any park, street, or other improvement, notwithstanding the use of same by the public, unless the park, street, or other improvement has been accepted by ordinance or resolution by the Borough Council.
F.
The Borough Council may require that certain subdivision and land development improvements remain undedicated, with maintenance the responsibility of individual lot owners, a homeowners' association or similar entity, or an organization capable of carrying out maintenance responsibilities.
A.
Where the Borough Council accepts dedication of all or some of the required public improvements following completion (whether such dedication is of the fee or of an easement), the Council shall require the posting of financial security to secure the structural integrity of the improvements and the functioning of the improvements in accordance with the design and specifications as depicted on the final plan. The security shall be in the form as is authorized for the deposit of the performance guarantee, as described in § 375-57 hereof, the security shall be for a term of 18 months from the date of the acceptance of dedication and shall be in an amount equal to 15% of the actual cost of installation of the improvements so dedicated.
B.
Where maintenance of stormwater management facilities is to be the responsibility of individual lot owners, a homeowners' association or similar entity, or an organization capable of carrying out maintenance responsibilities shall be set forth in perpetual covenants or deed restrictions binding on the landowners' successors in interest, and may further require that an initial maintenance fund be established in a reasonable amount.