Before approving any final subdivision plan, the governing body shall require a written agreement and appropriate financial surety, as specified in §
163-46 hereinbelow, that necessary grading, paving and street improvements, sidewalks, streetlights, fire hydrants, water mains, storm sewers and sanitary sewers, as may be required by the Borough, shall be installed by the developer in strict accordance with the design standards and specifications of the Borough within a specified time period.
The governing body shall ensure, through receipt
of certificates of compliance submitted and attested by the Borough
Engineer, that the required improvements have been installed according
to the specifications of the final plan or, alternately, require the
posting of adequate surety to cover the cost for such improvements.
The governing body may also ensure, through the posting of bonds or
other surety acceptable to the Borough, the maintenance of exiting
public rights-of-way and road surfaces which are in any manner utilized
for transport or related purposes during development and construction
associated with subdivision development. The governing body shall
specify one of the following alternatives, or such other alternative
as may be acceptable, for guaranteeing compliance with the requirements
of this section. The decision of which alternative shall be required
is that of the governing body. Final approval of a plan may not be
granted by the Planning Commission or the governing body until the
surety required is fully provided. In any event, the required surety
shall be secured along with the written agreement prior to any construction
or related activity.
A. Completion of improvements prior to final approval.
Prior to final plan approval, the developer shall complete, in a manner
satisfactory to the governing body and the Borough Engineer, all improvements
required in these regulations as specified in the final subdivision
plan and as approved by the governing body and shall dedicate the
same to the Borough in accordance with these regulations.
B. Guaranty of future performance.
(1) In lieu of requiring the completion of all improvements
prior to final plan approval, the Borough may, at its discretion,
enter into a contract with the developer whereby the developer shall
guarantee to complete all improvements required by this chapter or
otherwise specified by the governing body in a manner satisfactory
to the governing body.
(2) When requested by the developer in order to facilitate
financing, the governing body shall furnish the developer with a signed
copy of a resolution indicating approval of the final plat contingent
upon the developer obtaining a satisfactory financial security. The
final plat 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 governing body; such extension
shall not be unreasonably withheld and shall be placed in writing
at the request of the developer.
(3) To secure this contract, the developer shall provide,
subject to the approval of the governing body, one of the following
guaranties:
(a)
Surety bond. The developer shall obtain 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.
The amount of financial security shall be equal to 110% of the cost
of the required improvements as estimated by the developer and approved
by the Borough Engineer. The duration of the bond shall be until such
time as the improvements are accepted by the Borough in accordance
with the requirements of this chapter.
(b)
Escrow account.
[1]
The developer shall deposit cash or other instrument
readily convertible into cash at face value, either with the Borough
or in escrow with a bank. The use of any instrument other than cash
and, in the case of an escrow account, the bank with which the funds
are to be deposited shall be subject to the approval of the governing
body. The amount of financial security shall be equal to 110% of the
cost of the required improvements as estimated by the developer and
approved by the Borough Engineer.
[2]
In case of an escrow account, the developer
shall file with the governing body an agreement between the financial
bank and himself, guaranteeing the following:
[a] That the funds of said escrow account
shall be held in trust until released by the governing body and may
not be used or pledged by the developer as security in any other matter
during the period.
[b] That in the case of a failure on
the part of the developer to complete said improvements, the bank
shall immediately make the funds in said account available to the
Borough for use in the completion of those improvements.
(c)
Property escrow.
[1]
The developer shall offer as a guaranty land
or other property, including corporate stocks or bonds. The value
of any such property shall be at least equal to 110% of the cost,
as estimated by the developer and approved by the Borough Engineer,
of the installation of all contracted improvements. Property value
shall be determined by means acceptable to the Borough and shall take
into account the likelihood of a decline in the value of said property
during the guaranty period. The governing body shall retain the right
to eject the use of any property when it believes that the property
will be unusually difficult to sell or for other reasons such as will
inhibit the Borough from exchanging the property for a sufficient
amount of money to complete the required improvements.
[2]
When property is offered as an improvement guaranty,
the developer shall:
[a] Execute an agreement with the trustee,
when it is not the governing body, instructing the trust to release
the property to the Borough in the case of default. The agreement
shall also state that the property may be released only upon consent
of the governing body. The agreement shall be placed on file with
the Borough Secretary.
[b] File with the governing body an
affidavit affirming that the property to be used as a guaranty is
free and clear of any encumbrances or liens at the time it is to be
put in trust.
[c] Execute and file with the governing
body an agreement stating that the property to be placed in trust
as an improvement guaranty will not be used for any other purpose
or pledged as a security in any other matter until it is released
by the governing body.
(d)
Extension of guaranties. If the developer requires more than one year from the date of posting financial security to complete the required improvements, the amount of security may be increased to assure that financial security equals 110%. Any additional security shall be posted by the developer in accordance with this §
163-46.
C. Determining amount of financial security.
[Added 4-10-2012 by Ord. No. 434]
(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. 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 90th day after 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
C.
(2) The amount of financial security required shall be based on 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 the Commonwealth of Pennsylvania and certified
by such engineer to be a fair and reasonable estimate of such cost.
The Borough, upon recommendation of the Borough Engineer, may refuse
to accept such estimate for good cause shown.
(3) 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 the Commonwealth
of Pennsylvania 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.
D. Phased development. In the case where development is projected over
a period of years, Borough Council authorizes submission of final
plats 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 the finally approved section
of the development.
[Added 4-10-2012 by Ord. No. 434]
E. Facilities bonded by public utilities or municipal authorities. If
water mains or sanitary sewer lines, or both, along with the 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.
[Added 4-10-2012 by Ord. No. 434]
F. Partial release of security as work progresses. As the work of installing
the required improvements proceeds, the party posting the financial
security may request Borough Council to authorize release, from time
to time, of such portions of the financial security necessary for
payment of the contractor or contractors performing the work. Any
such requests shall be in writing addressed to Borough Council. Borough
Council shall have 45 days from receipt of such request to allow the
Borough Engineer to certify, in writing, to Borough Council that such
portion of the work upon the improvements has been completed in accordance
with the approved plan. Upon such certification, Borough Council 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 Borough Council fails
to act within the said forty-five-day period, Borough Council shall
be deemed to have approved the release of the funds as requested.
[Added 4-10-2012 by Ord. No. 434]
G. Retention upon completion. Borough Council 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 the aforesaid improvements.
[Added 4-10-2012 by Ord. No. 434]
If any road or any drainage facility in connection
therewith shall be opened, constructed or dedicated for public use
or travel, except in strict accordance with plans approved and recorded
as herein provided, neither the governing body nor any public authority
shall place, construct or operate any sewer, drain, water pipe or
other facility or do any work of any kind in or upon such road, and
neither the governing body nor any other public authority shall have
responsibility of any kind with respect to any such road or drainage
facility, notwithstanding any use of the same by the public; provided,
however, that nothing herein contained shall prevent the laying of
trunk sewers drains or water or gas mains, if required by engineering
necessity for the accommodating of other territory.