[Ord. No. 2022-04, 2/15/2022]
All applications for subdivision and land development that include
improvements shall be made in accordance with this section. This section
applies to all improvements, regardless of whether they are to be
dedicated to a public entity or not.
[Ord. No. 2022-04, 2/15/2022]
No application for Final Plan approval of a subdivision or land
development shall be approved by the Mifflinburg Borough Planning
Commission, nor shall any plan be considered in compliance with this
chapter, until all required improvements, including but not limited
to, streets, sidewalks, curbs, gutters, street signs, street lights,
street trees, fire hydrants, water mains, sanitary sewers, storm sewers
and drainage facilities, survey monuments, lot line markers, and shade
trees and landscaping have been installed in accordance with this
chapter.
[Ord. No. 2022-04, 2/15/2022]
In lieu of the construction and completion of improvements required
by this chapter prior to plan approval and recording of the plan,
the applicant or developer may enter into a developer's agreement
with the Borough and deposit a financial security with the Borough
in a form acceptable to the Mifflinburg Borough Planning Commission
and the Borough and follow the procedures contained herein.
[Ord. No. 2022-04, 2/15/2022]
1.
The amount of the 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.
2.
Annually the Mifflinburg Borough Planning Commission may adjust the
amount of the financial security by comparing the actual cost of the
improvements that 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 such adjustment, the
Mifflinburg Borough Planning Commission may require the developer
to post additional security in order to assure that the financial
security equals said 110%. The developer in accordance with this chapter
shall post any additional security.
[Ord. No. 2022-04, 2/15/2022]
1.
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 the engineer
to be a fair and reasonable estimate of such cost. The Mifflinburg
Borough Planning Commission, upon the recommendation of the Borough
Engineer, may refuse to accept such estimate for good cause shown.
2.
If water mains and 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 the Borough or its successors,
financial security to assure proper completion and maintenance thereof
shall be posted in accordance with the regulations of the Borough
or its successors and shall not be included within the financial security
as otherwise required by this section. The applicant or developer
shall provide evidence that financial security in an amount sufficient
to secure the completion of all sewer and/or water facilities to be
dedicated to the Borough or its successors has been provided and accepted
by such entity.
3.
If the applicant or developer and the Mifflinburg Borough Planning
Commission 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 Mifflinburg
Borough Planning Commission 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
by the applicant or developer.
[Ord. No. 2022-04, 2/15/2022]
1.
The following are acceptable forms of financial security.
A.
Surety Performance Bond. A security bond from a surety bonding company
authorized to do business in the Commonwealth of Pennsylvania. The
bond shall be payable to the Borough and shall be in a form satisfactory
to the Mifflinburg Borough Planning Commission.
B.
Escrow Account. A deposit of cash with the Borough in escrow with
a federal- or commonwealth-chartered financial institution. In the
case of an escrow account, the applicant or developer shall file with
the Mifflinburg Borough Planning Commission an agreement between the
financial institution and the applicant or developer guaranteeing
the following:
(1)
That the funds of the escrow account shall be held in trust
until released by the Borough and may not be used or pledged by the
developer as security in any other matter during that period.
(2)
In the case of a failure on the part of the developer to complete
the said improvements, the institution shall immediately make the
funds available to the Borough for use in the completion of those
improvements.
C.
Letter of Credit. An irrevocable commercial letter of credit provided
by the applicant and/or developer from a federal- or commonwealth-chartered
financial institution. This letter shall be deposited with the Borough
and shall certify the following:
(1)
The amount of credit.
(2)
In the case of failure on the part of the developer to complete
the specified improvements within a time period specified in a written
agreement between the Borough, the creditor shall pay to the Borough
such funds as are necessary to finance the completion of those improvements,
up to the limit of credit stated in the letter.
(3)
The letter of credit is irrevocable and may not be withdrawn,
or reduced in amount, until released or partially reduced by the Borough.
D.
Certified Check. A certified check payable to the Borough drawn on
a federal- or commonwealth-chartered financial institution.
E.
Other Forms of Security. Any other form of guarantee acceptable to
the Borough.
[Ord. No. 2022-04, 2/15/2022]
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 established estimating procedure in § 23-704.
[Ord. No. 2022-04, 2/15/2022]
The applicant and/or developer shall protect, defend, indemnify,
and save harmless the Borough and the Mifflinburg Borough Planning
Commission, their officers, employees, appointees, and agents thereof
from all claims, suits, actions, and proceedings of every nature and
description which may be or on account of any injuries or damages
to persons, including wrongful death, to public or private property,
because any materials or appliances used in the work, or by or on
account of improper materials or workmanship, or for or on account
of any accident or any other act, negligence or omission of said applicant
and/or developer or his officers, employees, appointees, and agents
thereof and the Borough shall not in any way be liable therefor, during
the period of the work progress and for a period of 18 months following
the acceptance of work.
[Ord. No. 2022-04, 2/15/2022]
During construction of improvements the applicant and/or developer
shall be responsible for the following:
1.
Constructing all improvements in strict accordance with the approved
subdivision and land development plan and all applicable Borough Ordinances.
2.
Implementing all necessary plans to control, mitigate, and eliminate
any forms of pollution, disturbance, or destruction resulting from
noise, odor, stormwater, and/or excessive loads or repetitions of
loads that may occur during construction.
3.
Work Zone Traffic Control. The applicant and/or developer shall furnish
the necessary guards, watchmen, warning lights and similar items necessary
to maintain state highway and other street traffic in accordance with
PennDOT Publication 203 requirements. When traffic cannot be detoured,
a minimum of 1/2 the roadway shall be open at all times with traffic
control. In limited and unique circumstances, with the approval of
the Mifflinburg Borough Planning Commission, the Borough and/or Penn
DOT limited closure might be warranted.
[Ord. No. 2022-04, 2/15/2022]
1.
The Mifflinburg Borough Planning Commission and the applicant or
developer shall mutually agree upon a schedule of inspections by the
Borough Engineer and/or other necessary consultants during construction,
which shall be made part of a developer's agreement executed
between the Borough and the applicant and/or developer. At a minimum
the Mifflinburg Borough Planning Commission will require inspections
at critical stages of construction determined by the Mifflinburg Borough
Planning Commission and Borough Engineer and/or other consultants.
See Appendix E for example developer's agreement.[1]
[1]
Editor's Note: Said appendix is on file in the Borough
offices.
2.
The applicant or developer shall notify the Borough of the construction schedule at least 48 hours prior to commencement of the work stages identified in Subsection 1 above.
3.
The applicant and/or developer shall correct any portion of the work
that does not comply with the approved plan and this chapter. No work
may proceed on any subsequent phase of the construction until necessary
corrections have been made.
4.
Site improvements shall not advance to subsequent stages of construction
until authorized to do so after the satisfactory inspection of the
previous stage.
[Ord. No. 2022-04, 2/15/2022]
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, such portions
of the financial security as are necessary for payment to the contractor
or contractors performing the work. Any such requests shall be made
in writing addressed to the Borough, and the Borough shall have 45
days from receipt of such request to allow the Borough Engineer to
certify, in writing, that a portion of the work upon the improvements
has been completed in accordance with the approved plan. Upon certification
the Borough shall authorize release by the bonding company or lending
institution of an amount estimated by the Borough Engineer to be the
value of the improvements completed. If the Borough fails to act within
the forty-five-day period, the Borough shall be deemed to have approved
the release of funds as requested. The Borough may, prior to final
release at the time of completion and certification by the Borough
Engineer, require retention of 10% of the estimated cost of aforesaid
improvements.
[Ord. No. 2022-04, 2/15/2022]
After final plan approval and upon completion of all required
improvements, the applicant or developer shall submit an as-built
plan showing the location, dimension, and elevation of all improvements.
As-built plans are required for all constructed improvements and developed
conditions. The as-built plan shall specify all deviations from the
previously approved drawings. Five copies of the as-built plan shall
be submitted to the Mifflinburg Borough Planning Commission. Depending
on the severity of the deviations from the approved plan shown by
the as-built plan a full subdivision and land development plan revision
may need to be submitted and approved.
[Ord. No. 2022-04, 2/15/2022]
1.
Notice of Completion. When the developer has completed all of the
agreed-upon improvements, the developer shall notify the Mifflinburg
Borough Planning Commission in writing, by certified or registered
mail, of the completion of the improvements, and shall send a copy
also to the Borough Engineer. The Borough shall, within 10 days after
receipt of such notice, direct the Borough Engineer to inspect all
of the improvements. The Borough Engineer shall file a written report
with the Mifflinburg Borough Planning Commission and the Borough or
Borough Engineer shall promptly mail a copy of it to the developer
by certified or registered mail. The report shall be mailed within
30 days after receipt by the Borough Engineer of the authorization
from the Mifflinburg Borough Planning Commission; the report shall
be detailed and shall indicate approval or rejection of the improvements,
either in whole or in part. If the Borough Engineer does not approve
the improvements, or any portion of them, the report shall contain
a statement of reasons for such nonapproval or rejection.
2.
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 decision to accept or not accept the improvements.
3.
If the Borough 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.
4.
If any portion of the improvements shall not be approved or shall
be rejected by the Mifflinburg Borough Planning Commission, the developer
shall proceed to complete the same and, upon completion, the same
procedure of notification as outlined in this section shall be followed.
5.
Nothing herein, however, shall be construed to limit the developer's
right to contest or question by legal proceedings or otherwise, any
determination of the Mifflinburg Borough Planning Commission, the
Borough or Borough Engineer.
[Ord. No. 2022-04, 2/15/2022]
In the event that any improvements that may be required have
not been installed as provided in this chapter, or in accord with
the approved final plan, the Borough is hereby granted the power to
enforce any corporate bond, or other security by appropriate legal
and equitable remedies. If the proceeds of the improvements 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 may, at its option, install part of such improvements
in all or part of the subdivision or land development and may institute
appropriate legal proceedings, whether resulting from the security
or from any legal or equitable action brought against the developer,
or both. All monies drawn against the improvements bond or other security
shall be used solely for the installation of the improvements covered
by such security, and not for any other purpose.
[Ord. No. 2022-04, 2/15/2022]
Where the Borough has accepted dedication of certain improvements,
it may, at its discretion, require the applicant or developer to post
financial security to secure the structural integrity of the improvements
and the functioning of the improvements in accordance with the design
and specifications as shown on the final plan for a term not to exceed
18 months from the date of acceptance of dedication. The financial
security shall be of the same type as otherwise required in this section
and the amount of the financial security shall not exceed 15% of the
actual cost of installation of said improvements.
[Ord. No. 2022-04, 2/15/2022]
1.
If the Borough shall desire to accept dedication of improvements
for public ownership, the Borough shall adopt a resolution accepting
the deed or other formal document of acceptance. The Borough shall
not be responsible for accepting dedication, and improvements shall
be deemed private, until the following items are satisfied:
A.
The Borough and/or Borough Engineer conducts a final inspection certifying
that all improvements have been satisfactorily installed according
to the approved final plan.
B.
All inspection fees are paid.
C.
An appropriate improvement maintenance guarantee has been posted.
D.
A deed of dedication is provided.
[Ord. No. 2022-04, 2/15/2022]
1.
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 non-dedicated improvements
shall be established by the developer and approved by the Mifflinburg
Borough Planning Commission. 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 through the use of a declaration and other documents approved
by the Mifflinburg Borough Planning Commission. Such documents shall
be in conformance with the Uniform Planned Community Act of December
19, 1996, No. 180 (68 Pa.C.S.A. § 5101 et seq.), as amended.
B.
Improvements Benefiting Multiple Lots. For all non-dedicated 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 (e.g., 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 the improvements
are situated.
C.
Ownership and Maintenance Agreement. A private agreement suitable
for recording in the Union County Recorder of Deeds Office shall be
prepared, properly executed, and recorded with the final subdivision
or land development plan, shall run with the land, and shall clearly
identify the individual or entity responsible for the ownership and
maintenance of non-dedicated improvements. The agreement shall be
reviewed and approved by the Mifflinburg Borough Planning Commission,
Borough Engineer and the Borough and, at a minimum, shall stipulate
the following:
(1)
That the owners, an association of property owners, successors
and assigns shall keep all improvements in a safe and attractive manner,
and the owners 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, successors
and assigns fail to maintain the improvements following due notice
by the Borough to correct 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 and any administrative
costs. The Borough shall have the authority to assert a judgment lien
against the said owners or association of property owners for failure
to make the reimbursement(s).
D.
Deed Reference. All deeds created for lots that contain non-dedicated
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)
Provision that no improvements shall be eliminated or altered
without the written approval of the Mifflinburg Borough Planning Commission
and the Borough;
(6)
Provision 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, including the assertion of a judgment lien against it;
(7)
Provision that all improvements not offered for dedication may
be offered in the future if the 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 the improvements until the improvements are improved to
meet the standards, all costs of which shall be borne by the owner,
association of property owners, or their successors and assigns.
