A. 
Where subdivision or land development plans require improvements pursuant to this chapter and/or as shown within approved or conditionally approved final plan documents, it is the responsibility of the developer to either cause all such improvements to be installed and/or to provide an adequate financial guarantee that said improvements will be installed within a schedule incorporated as part of a development agreement as defined later herein.
B. 
In addition, the developer shall have paid or guaranteed payment of any and all fees required pursuant to Section 509(i) of the Pennsylvania Municipalities Planning Code (as most recently amended), and the payment or financial guarantee shall include reimbursement of the cost of inspections which are required by this chapter or other laws or regulations.
C. 
The amount of the financial guarantee shall be sufficient to cover the cost of all such improvements, if constructed by the Borough pursuant to the prevailing Borough Code, plus an allowance for administrative costs, including inspections. The improvement cost above shall first be furnished by the developer to the Borough Engineer in the form of an estimate with a list of work items, calculated quantities, and estimated unit prices. The Borough Engineer shall review the estimate and recommend to the Council approval or specific modifications. The final improvement cost shall be that approved by or modified by the Borough Council. Escalation to reflect future prices shall be included in the estimate.
A. 
Improvements agreement required.
(1) 
All applicants proposing any subdivision or land development which provides for the installation of improvements required by this chapter or any improvements or amenities which appear on the plan shall be required to enter into a legally binding improvements agreement complete with performance guarantee with the Borough prior to final plan approval.
(2) 
The improvements agreement shall guarantee the installation of said improvements in strict accordance with all Borough requirements.
B. 
Terms of improvements agreement. The improvements agreement shall be in the manner and form approved by the Borough Solicitor, and it shall consist of the following terms, where applicable:
(1) 
Scope of construction.
(a) 
Shall list all improvements as shown in the approved plans and/or related documents.
(2) 
Schedule.
(a) 
A work schedule, setting forth the beginning and ending dates and such other details as the Borough deems fit and appropriate for the improvements covered by the improvements agreement.
(b) 
An inspection schedule approved by the Borough Engineer.
(c) 
A date certain by which all improvements shall be complete.
(3) 
Performance guarantee:
(a) 
The provision of a performance guarantee for completion of required improvements which complies with § 170-49.
(b) 
The estimated cost of the improvements, including a detailed breakdown in a form acceptable to the Borough Council, and amount of the performance guarantee.
(c) 
Improvements subject to the improvements agreement shall be considered approved only after inspection by the Engineer and acceptance by the Council.
(4) 
Developer's responsibilities:
(a) 
The developer shall be solely responsible for damage to any other property.
(b) 
The developer or his agent shall secure or maintain public liability insurance and workers' compensation insurance for the duration of improvements construction. A copy (or other evidence of coverage) shall be submitted to the Borough.
(c) 
A save-harmless clause to protect the Borough from liability.
(d) 
Prevention of erosion, sedimentation, pollution and water damage.
(5) 
Dedication of streets, transfer of water and sewer lines and easements.
(a) 
A provision for dedication of streets and easements.
(b) 
Provisions for the transfer of ownership of improvements to appropriate utility owners.
(6) 
After completion of all required improvements, the developer shall provide the Borough with a set of reproducible completed improvement record plans prepared by and certified by a registered professional engineer or professional land surveyor, showing all streets, storm and sanitary sewers, water distribution facilities and street monuments, complete with elevations, as constructed. The scale of these plans shall be one inch equals 50 feet.
(7) 
The developer shall be responsible for all engineering and legal costs and expenses for review, inspection, consultations and preparation of agreements.
(8) 
Provisions for violation of the improvements agreement.
(9) 
Any other lawful terms which the Borough Council may require to carry out the provisions of this chapter.
(10) 
Signatures. The development agreement shall be signed by all landowners and/or developers.
C. 
Ownership of land and guarantee. A certificate of ownership in the form of Appendix B[1] shall be executed in the exact name in which title is held. If the developer of a subdivision is someone other than the landowner of the subdivision, the developer shall also execute the affidavit mentioned above, along with financial security agreements.
[1]
Editor's Note: Appendix B is an attachment to this chapter.
The performance guarantee for completion of required improvements shall meet the following requirements:
A. 
Security.
(1) 
The guarantee shall be secured by any of the following:
(a) 
An irrevocable and unconditional letter of credit of a federal- or state-chartered lending institution.
(b) 
A restrictive or escrow account in a federal- or state-chartered lending institution.
(c) 
Such other financial security approved by the Borough Council (which approval shall not be unreasonably withheld).
(2) 
Such 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 development schedule for the completion of such improvements.
(3) 
Such financial security shall be posted with a bonding company or federally-insured or state-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 state.
(a) 
The Borough Council may require that evidence be provided that such institution or company has sufficiently adequate and secure assets to cover the security.
(b) 
The Borough Council shall be an authorized signatory on any account in which the escrow funds are held, and all escrow funds from sales of lots shall be paid directly to such fund, and a monthly statement shall be furnished to the Borough.
B. 
Amount.
(1) 
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 in the official development schedule and within the process for increases to cover inflation as permitted by the Municipalities Planning Code.
(2) 
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.
In the case where development is projected over a period of years, the Borough Council may authorize submission of final plans by sections 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.
A. 
General. 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, from time to time, of such portions of the financial security corresponding to improvements which have been completed, inspected and approved.
B. 
Notice of completion. When the developer has completed an improvement, the developer shall notify the Borough Council in writing by certified or registered mail of such completion and request release and shall send a copy thereof to the Borough Engineer.
C. 
Engineer's report.
(1) 
Within 30 days of the receipt of such request, the Borough Engineer shall submit a written report to the Borough Council certifying which improvements have been completed in accordance with the approved plan.
(2) 
This report shall be based on the inspections made according to the approved inspection schedule included in the improvements agreement and shall recommend approval or rejection of the improvements, either in whole or in part.
(3) 
If the Borough Engineer finds any or all of the improvements to be not as required, he shall include a statement of the reasons for recommending their rejection in the report.
D. 
Release of funds. See Section 510 of the Pennsylvania Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10510.
E. 
Completion of approved improvements. The developer shall proceed to complete any improvements approved by the Borough Council and, upon completion, request final approval in conformance with the procedures specified in this section.
F. 
Final release.
(1) 
When the developer has completed all of the necessary and appropriate improvements, the developer shall request final release in conformance with the procedures specified in this section. (See time limitations and procedures in Section 510 of the Municipalities Planning Code.)
(2) 
A maintenance agreement must be in place before final release.
G. 
Appeal. 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.
A. 
Enforcement of security.
(1) 
In the event that any improvements which may be required have not been installed as provided in this chapter or in accordance with the approved final plan, or in the event of bankruptcy of the owner or developer, the Borough Council is hereby granted the power to elect to enforce any corporate bond (or other security) by appropriate legal and equitable remedies.
(2) 
This may include taking all actions necessary to obtain monies under said bond, including but not limited to seizure of undeveloped lots, confession of judgment, suit on the bond, seizure of escrow funds, renovation of building permits and prosecution under the ordinance.
(3) 
Rate of construction. Failure of a developer to construct streets and other public improvements reasonably at the same time or prior to the construction of the buildings served by those streets or public improvements, and at the same rate in time at which buildings are completed, shall be a violation of this chapter and a cause for default.
B. 
Completion by Borough. If the 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 monies necessary to complete the remainder of the improvements.
C. 
Proceeds for installation of 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.
A. 
Maintenance agreement required.
(1) 
All applicants proposing any subdivision or land development which provides for the dedication of improvements required by this chapter or any improvements or amenities which appear on the plan shall be required to enter into a legally binding maintenance agreement with the Borough prior to acceptance of dedication by the Borough.
(2) 
The dedication of any improvement shall not be accepted by the Borough prior to the execution of a maintenance agreement and the delivery of the maintenance guarantee.
B. 
Terms of maintenance agreement.
(1) 
The maintenance agreement shall be in the manner and form approved by the Borough Solicitor.
(2) 
The maintenance agreement shall require the applicant to make any repair or reconstruction of any improvement stipulated in the maintenance agreement which is specified by the Borough Council as necessary by reason of faulty construction, workmanship, or materials.
(3) 
The maintenance agreement shall require the applicant to maintain at his/her own cost all improvements stipulated in the maintenance agreement. This period shall not exceed 18 months from the date of acceptance or dedication by the Borough, except for any special purpose escrow or maintenance agreements required by the Borough.
(4) 
The maintenance agreement shall 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 plan for a term not exceeding 18 months from the date of acceptance of dedication.
(5) 
Snowplowing. It shall be the responsibility of the developer to plow snow and maintain all streets until such time as the Borough may accept such streets.
C. 
Public utilities and authorities. 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 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 and shall not be included within the financial security as otherwise required by this section.
A. 
Security. The maintenance guarantee shall be secured by the credit of any of the following:
(1) 
An irrevocable and unconditional letter of credit of a federal- or state-chartered lending institution.
(2) 
A restrictive or escrow account in a federal- or state-chartered lending institution.
(3) 
Such other financial security approved by the Borough Council (which approval shall not be unreasonably withheld).
(a) 
The Borough Council may require that evidence be provided that such institution or company has sufficiently adequate and secure assets to cover the security.
B. 
Terms. Such maintenance guarantee shall be in the form approved by the Borough Solicitor and Borough Council, payable to the Borough, to guarantee the maintenance and repair of the streets and other public improvements in the subdivision for 18 months from the date of acceptance thereof by the Borough. The applicant shall prove to the satisfaction of the Borough Council that there will be an acceptable system for the long-term maintenance of any stormwater management facilities.
C. 
Amount. The amount of the maintenance guarantee shall be determined by the Borough.
D. 
Release. After the expiration of 18 months from the date of acceptance of said improvements, and upon request from the developer, the Borough shall release said maintenance guarantee to the developer (or party posting said maintenance guarantee) if all improvements are in satisfactory condition.
A. 
Open spaces between structures, including those spaces being used as public or private recreational areas, shall be protected by adequate covenants running with the land, by conveyances or dedications.
B. 
Where subdivision or land development plans require communal open space, recreation areas or other communally owned facilities, the developer shall submit a legal instrument or instruments setting forth a plan or manner of permanent care and maintenance of such open spaces, recreational areas and communally owned facilities.
C. 
In cases where the Borough will not be accepting dedications of streets, stormwater management facilities, communal recreation areas or communal open spaces, the developer shall provide for an organization or trust for ownership and maintenance.
D. 
If the nondedicated streets, stormwater management facilities, communal recreation areas or communal open space is deeded to a homeowners' association or a nonprofit corporation established on a membership basis, the developer shall file a declaration of covenants and restrictions that will govern the association, to be submitted with the application for final plan approval. If there is a homeowners' association under the Unit Property Act, the developer must file a declaration of rules and regulations. The provisions shall include, but not be limited to, the following:
(1) 
The homeowners' association or nonprofit corporation must be established before lots or homes are sold.
(2) 
Membership must be mandatory for each lot or home owner and any successive owner.
(3) 
The nondedicated streets, stormwater management facilities, communal recreation areas or communal open space restrictions must be permanent, not just for a period of years.
(4) 
The association must be responsible for liability insurance, local taxes, and the maintenance of the nondedicated streets, stormwater management facilities, communal recreation areas or communal open space.
(5) 
Homeowners must pay their pro rata share of the cost. The assessment levied by the association can become a lien on the property.
(6) 
The association must be able to adjust the assessment to meet changed needs.
E. 
The Borough may, at any time and from time to time, accept the dedication of land or any interest therein for public use and maintenance, but the Borough need not require, as a condition of the approval of a subdivision or land development, that land proposed to be set aside for nondedicated streets, stormwater management facilities, communal recreation areas or communal open space be dedicated or made available to public use.
F. 
Maintenance by Borough.
(1) 
In the event that the organization established to own and maintain nondedicated streets, stormwater management facilities, communal recreation areas or communal open space, or any successor organization, shall at any time after establishment of the subdivision or land development fail to maintain the nondedicated streets, stormwater management facilities, communal recreation areas or communal open space in reasonable order and condition in accordance with the subdivision or land development plan, the Borough may (but shall not be required to) serve written notice upon such organization and/or upon the residents of the subdivision or land development setting forth the manner in which the organization has failed to maintain the common open space in reasonable condition, and said notice shall include a demand that such deficiencies of maintenance be corrected within 30 days thereof. If the deficiencies set forth in the original notice or in any modifications thereof shall not be corrected within said 30 days, or any extension thereof, the Borough, in order to preserve the taxable values of the properties within the subdivision or land development and to prevent the common open space from becoming a public nuisance, may enter upon said common open space and maintain the same for a period of up to one year.
(2) 
If the Borough Council shall determine that such organization is ready and able to maintain said common open space in reasonable condition, the Borough shall cease to maintain said common open space at the end of said year, or sooner if appropriate. If the Borough Council shall determine that such organization is not ready and able to maintain said common open space in a reasonable condition, the Borough may, in its discretion, continue to maintain said common open space during the next succeeding year and, subject to a similar hearing and determination, in each year thereafter.
(3) 
Any decision of the Borough Council under § 170-57F(1) or (2) above shall be subject to appeal to court in the same manner, and within the same time limitation, as is provided for zoning appeals by the Pennsylvania Municipalities Planning Code, as amended.
(4) 
The cost of such maintenance by the Borough shall be assessed ratably against the properties within the planned residential development that have a right of enjoyment of the nondedicated streets, stormwater management facilities, communal recreation areas or communal open space and shall become a lien on said properties. The Borough at the time of entering upon said nondedicated streets, stormwater management facilities, communal recreation areas or communal open space for the purpose of maintenance shall file a notice of lien in the office of the Prothonotary of Berks County, Pennsylvania, upon the properties affected by the lien within the planned residential development.
(5) 
The provisions of this § 170-57 shall be incorporated in all declarations, rules, regulations and similar documents of the homeowners' association or a nonprofit corporation relating in any manner to the nondedicated streets, stormwater management facilities, communal recreation areas or communal open space and shall constitute covenants running with the land.
G. 
Appropriate notes shall be included on the subdivision or land development plans regarding the provisions of this § 170-57. No instruments or plan notes referred to herein shall be acceptable until approved by the Borough Solicitor as to legal form and effect and the Borough Council as to suitability for the proposed use of the open areas.