Where a plan is given an approval with conditions, the applicant
shall provide a written acceptance of said conditions within 30 days
of the date on which the Borough provided required notice of approval
to the applicant. Failure of the applicant to provide such acceptance
within the aforesaid timeline shall result in an automatic rescinding
of the plan approval.
All major plans shall, upon final approval, require the execution
of a developer's agreement, prepared by or under the direction
of the Borough Solicitor and at a minimum containing the following
information. The plans shall be recorded at the Butler County Recorder
of Deeds at the expense of the developer before any permits are issued
on the site:
A. All recording information relating to the subject site.
B. Inclusion of approved land development plans as an attachment, where
applicable.
C. All conditions applied by Council.
D. Timeline of development related and referenced to the financial security
posted as remedy to the developer's failure to adhere to said
timeline and improvements.
E. Assignment of the agreement's obligations to the developer's
heirs and assigns.
F. Seal by a notary public, the Borough, and the developer's corporation,
where one exists.
G. Reference to the certificate of completion required by this chapter.
H. Requirement that covenants shall be recorded prior to the issuance
of building permits on the site.
I. Where a record plat is not associated with the plan, a copy of the
proposed conditions plan shall be attached to the developer's
agreement.
J. The agreement shall be produced in a format recordable at the Butler
County Recorder of Deeds.
No plat or developer's agreement shall be signed or released,
nor shall any permit be issued for related subdivisions or land developments,
unless all public and private improvements are installed or until
financial security is provided as follows.
A. The developer may post a performance bond with a federal or commonwealth
chartered lending institution, irrevocable letters of credit, and
restrictive or escrow accounts in such lending institutions or other
forms of financial security acceptable to the Borough. Such other
forms shall be posted with a bonding company or federal or commonwealth
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 commonwealth.
B. The performance bond shall guarantee construction prior to a date
also specified in the developer's agreement and through the plan
approval. The bond shall renew or guarantee the availability of funds
to the Borough at least until 30 days beyond said date.
C. 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 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 said adjustment, the
Borough may require the developer to post additional security in order
to assure that the financial security equals said 110%. The developer
shall post any additional security in accordance with this section.
D. 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 such engineer
to be a fair and reasonable estimate of such cost. The Borough, upon
the recommendation of the Municipal 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
licensed as such in this commonwealth 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.
E. 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 bidding procedure.
F. In the case where development is projected over a period of years,
the Borough may authorize submission of final plats 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.
G. 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, of such portions of the
financial security necessary for payment to the contractor or contractors
performing the work. Any such requests shall be in writing addressed
to the Borough, and the Borough shall have 45 days from receipt of
such request within which to allow the Municipal Engineer to certify,
in writing, to the Borough that such portion of the work upon the
improvements has been completed in accordance with the approved plat.
Upon such certification, the Borough shall authorize release by the
bonding company or lending institution of an amount as estimated by
the Municipal Engineer fairly representing the value of the improvements
completed or, if the Borough fails to act within said 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 its Engineer, require retention
of 10% of the estimated cost of the aforesaid improvements.
Nothing in this article, however, shall be construed to limit
the developer's right to contest or question, by legal proceedings
or otherwise, any determination of Council or the Borough Engineer.