Before approving any final subdivision plan, the governing body shall require a written agreement and appropriate financial surety, as specified in § 219-48 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 existing 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 (1) 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.
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.
Guaranty of future performance.
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.
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 ninety (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.
To secure this contract, the developer shall provide, subject to the approval of the governing body, one (1) of the following guaranties:
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 one hundred ten percent (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.
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 one hundred ten percent (110%) of the cost of the required improvements as estimated by the developer and approved by the Borough Engineer.
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:
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.
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.
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 one hundred ten percent (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 reject 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.
When property is offered as an improvement guaranty, the developer shall:
Execute an agreement with the trustee, when it is not the governing body, instructing the trustee 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.
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.
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.
Extension of guaranties. If the developer requires more than one (1) 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 one hundred ten percent (110%). Any additional security shall be posted by the developer in accordance with this § 219-48.
The procedure for release from an improvement bond is as follows:
When the developer has completed all of the required improvements, the developer shall notify the governing body, in writing, by certified or registered mail, of the collection of the required improvements and shall send a copy thereof to the Borough Engineer.
The governing body shall, at the next scheduled meeting after receipt of such notice, direct and authorize the Borough Engineer to inspect all of the aforesaid improvements. The Borough Engineer shall thereupon file a report, in writing, with the governing body and shall mail a copy of the same to the developer by certified or registered mail. The report shall be made and mailed within forty-five (45) days after receipt by the Borough Engineer of the aforesaid authorization from the governing body. Said report shall be detailed and shall indicate approval or rejection of said improvements. If any portion thereof shall be rejected, the report shall contain a statement of reasons for such nonapproval or rejection.
After receipt of the Engineer's report and maintenance bond, the governing body shall notify the developer within fifteen (15) days, in writing, by certified or registered mail, of the action of the governing body with relation thereto.
If the governing body or the Borough Engineer 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.
If any portion of the required improvements shall not be approved or shall be rejected by the governing body, the developer shall proceed to complete the same, and upon completion the same procedure of notification as outlined herein shall be followed.
Nothing herein, however, shall be construed in limitation of the subdivider's or developer's right to contest or question, by legal proceedings or otherwise, any determination of the governing body or the Borough Engineer.
In the event that any improvements that may be required have not been constructed and installed as provided for in the written agreement, this chapter or the requirements of the governing body or in accordance with the approved final plan, the governing body shall enforce any corporate bond or other security by appropriate legal and equitable remedies.
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 governing body may, at its option, install part of such improvements and may institute appropriate legal or equitable action to recover the moneys necessary to complete the remainder of the 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 municipal purpose.
Before the Borough Engineer shall issue to the governing body a written certification that all improvements specified and required have been satisfactorily completed in accordance with the agreement and requirements relative to the land development and in compliance with the specifications, standards, ordinances and requirements of the borough, the subdivider or developer shall be required to deposit with the borough a corporate maintenance bond in such amount, under such conditions, in such form and with approved surety as shall be required by the governing body. Said maintenance bond is to guarantee the repairs and maintenance by the subdivider or developer of the streets, roads, pavements, sidewalks, curbs, gutters, storm drains and facilities, sanitary sewer and facilities, sewage treatment plant and facilities and any other improvements constructed and installed in the subdivision or development for a period of two (2) years from the date of final and official acceptance of the above-said improvements and facilities by the governing body.
The repairs and maintenance required to be performed by the subdivider or developer shall extend only to making good any inherent defects which become manifested in the materials and workmanship under ordinary conditions and shall not be held to cover any breakage or damage caused by improper use or by accident resulting from circumstances over which the subdivider or developer has no control.
No road, street, land or related improvement shall be accepted as a part of the highway system of the borough or for maintenance unless opened, laid out, graded and improved in strict accordance with the standards and regulations of the borough. The requirements, specifications and standards of construction, material and appurtenances as designated herein are considered as minimum, and the governing body may, as it deems advisable, revise said specifications and requirements to secure a higher standard of improvements and community development.
No stormwater drainage facilities, sanitary sewer and sewage treatment facilities, water supply and water distribution system and facilities or any other facilities or improvements will be accepted as a part of the borough's facilities for operation and maintenance unless designed and constructed in strict compliance with all the standards, specifications, rules, regulations, ordinances and requirements of the borough.
Within ninety (90) days after the date of approval of the final plan, the developer shall record an approved duplicate copy of the plan in the office of the County Recorder of Deeds and file with the Secretary of the Borough a Recorder's certificate that the approved plan has been recorded, with the plan book and page numbers indicated.
After an approved subdivision plan shall have been officially recorded, the streets, parks and other public improvements shown hereon shall be so considered to be a part of the Official Plan of the borough.
Streets, parks and other public improvements shown on a subdivision plan to be recorded shall be offered for dedication to the borough by formal notation thereof on the plan, or the owner shall note on such plan that any improvements have not been offered for dedication to the borough.
Every street, park or other improvement shown on a subdivision plan shall be deemed to be a private street, park or improvement until such time as the same shall have been offered for dedication to the borough and accepted, by ordinance or resolution, or until it shall have been condemned for use as a public street, park or other improvement.
In the event that an approved subdivision plan is not recorded within the required ninety-day period, said approval shall be deemed voided and rescinded, and the plan must be resubmitted if approval is sought by the developer.
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.
Common open space, when provided, shall be located so as to be consistent with accepted design principles. It shall be designed as a contiguous area easily accessible to the residents and preserving natural features.
Provisions to ensure common open space.
There shall be provisions that ensure that the common open space shall continue as such and be properly maintained. The developer shall either:
Dedicate such land to public use if the borough or another public agency has indicated it will accept such dedications;
Retain ownership and responsibility for maintenance of such open space; or
Provide for and establish one (1) or more organizations for the ownership and maintenance of all common open space.
If a homeowners' association or open space trust is formed, it shall be governed according to the following regulations:
The organization is established by the developer and operated with financial subsidization by the developer, if necessary, before the sale of any lots within the development.
Membership in the organization is mandatory for all purchasers of homes therein and their successors.
The organization shall be responsible for maintenance, insurance and taxes on common open space.
The members of the organization shall share equitably the costs of maintaining and developing common open space, in accordance with procedures established by them.
The organization shall hire adequate staff to administer facilities and maintain the common open space.
Failure to maintain.
In the event that the organization established to own and maintain common open space, or any successor organization, shall at any time after establishment of the development fail to maintain the common open space in reasonable order and condition in accordance with the development plan, the borough may serve written notice upon such organization or upon the residents of the development setting forth the manner in which the organization has failed to maintain the common open space in reasonable condition.
Said notice shall include a demand that such deficiencies of maintenance be corrected within thirty (30) days thereof and shall state the date and place of a hearing thereon, which shall be held within fourteen (14) days of the notice.
If the deficiencies set forth in the original notice or in the modifications thereof shall not be corrected within said thirty (30) days or any extension thereof, the borough may enter upon said common space and maintain the same for a period of one (1) year.
Said maintenance by the borough shall not constitute a taking nor vest in the public any rights of use.
Before the expiration of said year, the borough shall call a public hearing upon notice to such organization or to the residents of the development. At the hearing, such organization or the residents shall show cause why such maintenance by the borough shall not, at the option of the borough, continue for a succeeding year.
If the governing body determines that such organization is ready and able to maintain said common space in reasonable condition, the borough shall cease maintenance at the end of said year.
If the governing body shall determine that such organization is not ready and able to maintain said common open space in a reasonable condition, it may, at its discretion, continue maintenance during the next succeeding year subject to a similar determination in each year thereafter.
The costs of maintenance by the borough shall be assessed against the properties within the development that have a right of enjoyment of the common open space and shall become a lien on said properties.