A.
Before approving any land development plan for recording, the Borough
Council must be assured by means of a proper development agreement
and performance guarantee that the improvements required by this chapter
and the improvements appearing on the plan will be installed in strict
accordance with the standards and specifications of this chapter,
unless:
(1)
An applicant chooses to install all required improvements prior to
construction of any building; in place of using performance guarantees,
in which case, the Borough shall, as deemed necessary, require the
applicant to have adequate insurance, hold harmless agreements, an
escrow account to cover the costs of inspections and a professional
estimate of the costs of the improvements (to be used to establish
the amount of the inspections escrow).
B.
Purpose of security. The security required by this article shall
stand as security for compliance with all ordinances, other laws,
covenants, stipulations, conditions and rules applicable to the land
development for which it is filed.
C.
No construction of buildings or paving or sales of any individual
lot or condominium unit within a land development shall take place
unless: (1) there is on file, with the Borough, current duly executed
and approved security, or (2) all rough grading is complete and all
required public improvements, utilities, streets, drainage facilities,
sewers and street lights have been completed and accepted by Borough
Council.
A.
In all cases, the land applicant shall be responsible for the installation
of all improvements required by this chapter.
B.
The Borough Engineer or other designee shall make such inspections
of the required improvements at such intervals as may be reasonably
necessary to assure compliance with this chapter. The reasonable costs
of such inspection shall be borne by the land applicant, making use
of an escrow account or other arrangement agreed to by the Borough.
A.
Development agreement required.
(1)
All applicants proposing any land development which provides for the installation of improvements required by this chapter or any improvements or amenities which appear on the final plan shall be required to enter into a legally binding development agreement with Borough Council prior to recording of the final plan (or at a date agreed to by Council), unless the applicant agrees to meet § 180-29 concerning the construction of all improvements prior to the construction, of any buildings.
(2)
The development agreement shall guarantee the installation of said
improvements in strict accordance with all Borough requirements.
(3)
The final plan shall not be approved for recording prior to the execution
of this agreement and the delivery of the performance guarantee.
B.
Terms of development agreement. The development agreement shall be
in a form acceptable to the Borough Solicitor. The Borough Council
may require that a development agreement include any of the following
items, where applicable, and such additional items as are necessary
to carry out this chapter:
(1)
The construction depicted on the approved plans, listed in itemized
format, including all approved streets, drainage facilities, utility
lines and other improvements.
(2)
A work schedule setting forth the beginning and ending dates of such
work tied to the construction of the development and provisions to
allow proper inspection by the Borough Engineer.
(3)
The provision of a performance guarantee for completion of required improvements in compliance with § 180-45, including a detailed breakdown of the estimated costs of the Improvements, including the total amount of the performance guarantee.
(4)
Provisions concerning the applicant's responsibilities for damage
to other property, including maintenance by the applicant of public
liability insurance in the minimum amounts required by Borough Council
for the duration of improvements construction, with a hold harmless
clause to protect the Borough from liability related to such work.
A copy or other evidence of such liability coverage shall be provided
to the Borough prior to such work.
(5)
Provisions concerning measures to prevent erosion, sedimentation
and water damage to the subject and adjacent properties.
(6)
Provisions for the dedication of streets, water and sewer lines and
any other easements or improvements approved to be dedicated.
(7)
Provisions for the applicant to reimburse the Borough for all reasonable
engineering costs directly related to the review, construction and
inspection of the proposed development and to the review and preparation
of the development agreement.
(8)
Provisions concerning any violations of the development 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
responsible landowners and/or applicants.
C.
Ownership of land and guarantee.
(1)
A certificate of ownership shall be executed in the exact name in
which title is held.
(2)
Change in ownership or applicant. Any conveyance of all or a substantial
portion of the unimproved development or public improvements or streets
of any land development or change in applicants, whether voluntary
or by action of law or otherwise, shall require the prior approval
of the Borough. In giving or denying said approval, the Borough shall
require that such new landowner and/or applicant fully assume all
applicable responsibilities under the development agreement and post
all the appropriate security agreements.
D.
Utility agreements. If a development will connect into a public water
or public sanitary sewage system, the applicable authority, agency
or company may also require separate development agreements.
The performance guarantee for completion of required improvements
shall meet the following requirements:
A.
Security.
(1)
The guarantee shall be secured by the credit of 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 (which
approval shall not be unreasonably withheld), but not including a
second or third mortgage on the unimproved lands.
(2)
Such approved security shall provide for, and secure to the public, the completion of any improvements which may be required within one year of the date fixed in the development schedule (§ 180-46F) for the completion of such improvements.
(3)
Such financial security shall be posted with a federally insured
or state-chartered lending institution chosen by the party posting
the financial security, or such other approved entity, provided such
institution or entity is authorized to conduct such business within
the state.
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 applicant in the official development schedule,
and within the process for increases to cover inflation as permitted
by the Pennsylvania Municipalities Planning Code.
(2)
The cost of the improvements shall be established by an estimate
prepared by a Design Professional, which shall be reviewed by the
Borough Engineer, within the arbitration process permitted by the
Pennsylvania Municipalities Planning Code.
(3)
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 a maximum of an additional 10% or 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 procedure.
(4)
Inspection fees. The amount of financial security shall also include
an additional 5% of the estimated cost of completion of the work to
guarantee payment of inspection fees and related engineering costs.
C.
Multi-year or multi-stage development. In the case where development
is projected over a period of years, the Borough may authorize submission
of final plans by phases/stage of development subject to such requirements
or improvement guarantees concerning future improvements as it finds
necessary for the proper functioning of each phase and for the eventual
development as a whole.
A.
In general. 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, portions of the
financial security necessary for payment to the contractors performing
the work.
B.
Notice by applicant of work on improvements. The applicant or his/her
representative should provide a minimum of three days' notice
to the Borough Engineer prior to beginning each major facet of construction,
in order to allow the scheduling of inspections.
C.
Engineer's report.
(1)
Within 30 days of the receipt of such request, the Borough Engineer
shall submit a written report certifying which improvements have been
completed in accordance with the approved plan to the Borough and
mail a copy of such, by certified or registered mail, to the applicant
or his/her representative at his/her last known address.
(2)
This report shall be based on the inspections made according to the
approved inspection schedule included in the development 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/she shall include a statement of the reasons for
recommending their rejection in the report.
D.
Decision by Borough.
(1)
At its first regularly scheduled meeting after receiving the Engineer's
report [but not later than 45 days, of the receipt of the request]
the Borough shall review the Borough Engineer's report and shall
authorize release of an amount as estimated by the Borough Engineer
fairly representing the value of the improvements completed.
(2)
The Borough shall be deemed to have approved the release of funds
as requested if the Borough fails to act within 45 days of receipt
of the applicant's request.
(3)
Until final release (completion of all improvements), the Borough
may require retention of a maximum of 10% of the cost of each completed
improvement.
(4)
The Borough shall notify the applicant in writing by certified or
registered mail of the decision.
E.
Completion of unapproved improvements. The applicant shall proceed
to complete any improvements not approved by the Borough and, upon
completion, request approval in conformance with the procedures.
F.
Final release.
(1)
When the applicant has completed all of the necessary and appropriate
improvements, the applicant shall request final release in conformance
with the procedures specified in this section. See time limitations
and procedures in § 510 of the Municipalities Planning Code,
53 P.S. § 10510.
(2)
Such final release shall include all moneys retained.
G.
Appeal. Nothing herein, however, shall be construed to limit the
applicant's right to contest or question by legal proceedings
or otherwise any determination of the Borough 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 accord with the approved
final plan, or in the event of the bankruptcy of the owner or applicant,
the Borough is hereby granted the power to elect to enforce any security
posted under this chapter by appropriate legal and equitable remedies.
(a)
This may include taking all actions necessary to obtain moneys
under said security, including, but not limited to, seizure of undeveloped
lots, seizure of escrow funds, revocation of zoning permits and prosecution
under this chapter.
(2)
Rate of construction. Failure of an applicant 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
of the security.
B.
Completion by Borough. If the proceeds of such 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
or equitable action to recover the moneys necessary to complete the
remainder of the improvements.
C.
Proceeds for installation of improvements. The proceeds from use
of the security and/or from any legal or equitable action brought
against the applicant shall be used solely for the installation of
the improvements covered by such security.
A.
Maintenance guarantee required. All applicants proposing any land
development which provides for the dedication of improvements required
by this chapter shall be required to provide a legally binding maintenance
guarantee to the Borough prior to acceptance of dedication of the
improvements by the Borough. In most cases, this guarantee will be
part of the security agreement.
B.
Terms of maintenance guarantee. The maintenance guarantee shall be
acceptable in legal form to the Borough Solicitor and in content to
the Borough Council, and shall include all of the following:
(1)
That the applicant make any repair or reconstruction of any improvement
stipulated in the maintenance agreement which is specified by the
Borough if needed because of faulty construction, workmanship, or
materials, prior to acceptance of such improvement by the Borough.
(2)
That the applicant maintain at his/her own cost all improvements
stipulated in the maintenance agreement, up to a maximum period of
18 months from the date of completion, except for any special purpose
escrow or maintenance agreements required by the Borough.
(3)
That the applicant post 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 maximum term of 18 months from the date of completion.
(4)
That the applicant plow snow and maintain all streets until such
time as the Borough may accept such streets.
C.
Type of security. The maintenance guarantee shall be secured by the
same form of security as is permitted for the improvements guarantees.
D.
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 land development for 18 months from the date of
completion. The applicant shall prove to the satisfaction of the Borough
that there will be an acceptable system for the long-term maintenance
of any stormwater detention basins.
E.
Amount. The amount of the maintenance guarantee shall be determined
by the applicants engineer, conditioned upon acceptance by the Borough,
but shall not exceed 15% of the actual cost of installation of such
improvements.
F.
Release. After a maximum of 18 months from the date of completion
of said improvements, the Borough shall release the maintenance guarantee
to the applicant (or party that posted the guarantee) if all improvements
are in satisfactory condition, as determined by the Borough.
