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| PRIOR PRINTER'S NOS. 2190, 3779 | PRINTER'S NO. 3805 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY CREIGHTON, CALTAGIRONE, CLYMER, DAVIS, GEIST, GIBBONS, GINGRICH, GROVE, HELM, KNOWLES, MILLER, MOUL, MUSTIO, DAVIDSON AND MALONEY, JUNE 23, 2011 |
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| AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 21, 2012 |
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| AN ACT |
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1 | Amending Title 53 (Municipalities Generally) of the Pennsylvania |
2 | Consolidated Statutes, in municipal authorities, further |
3 | providing for purposes and powers. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Section 5607(d)(23) and (30) of Title 53 of the |
7 | Pennsylvania Consolidated Statutes are amended to read: |
8 | § 5607. Purposes and powers. |
9 | * * * |
10 | (d) Powers.--Every authority may exercise all powers |
11 | necessary or convenient for the carrying out of the purposes set |
12 | forth in this section, including, but without limiting the |
13 | generality of the foregoing, the following rights and powers: |
14 | * * * |
15 | (23) To require the posting of financial security to |
16 | insure the completion in accordance with the approved plat |
17 | and with the rules and regulations of the authority of any |
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1 | water mains or sanitary sewer lines, or both, and related |
2 | apparatus and facilities required to be installed by or on |
3 | behalf of a developer under an approved land development or |
4 | subdivision plat as these terms are defined under the act of |
5 | July 31, 1968 (P.L.805, No.247), known as the Pennsylvania |
6 | Municipalities Planning Code. If financial security is |
7 | required by the authority and without limitation as to other |
8 | types of financial security which the authority may approve, |
9 | which approval shall not be unreasonably withheld, federally |
10 | chartered or Commonwealth-chartered lending institution |
11 | irrevocable letters of credit and restrictive or escrow |
12 | accounts in these lending institutions shall be deemed |
13 | acceptable financial security. Financial security shall be |
14 | posted with a bonding company or federally chartered or |
15 | Commonwealth-chartered lending institution chosen by the |
16 | party posting the financial security if the bonding company |
17 | or lending institution is authorized to conduct business |
18 | within this Commonwealth. The bond or other security shall |
19 | provide for and secure to the authority the completion of |
20 | required improvements within one year from the date of |
21 | posting of the security. The amount of financial security |
22 | shall be equal to 110% of the cost of the required |
23 | improvements for which financial security is to be posted. |
24 | The cost of required improvements shall be established by |
25 | submitting to the authority a bona fide bid from a contractor |
26 | chosen by the party posting the financial security. In the |
27 | absence of a bona fide bid, the cost shall be established by |
28 | an estimate prepared by the authority's engineer. If the |
29 | party posting the financial security requires more than one |
30 | year from the date of posting the financial security to |
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1 | complete the required improvements, the amount of financial |
2 | security may be increased by an additional 10% for each one- |
3 | year period beyond the first anniversary date from the |
4 | initial posting date or to 110% of the cost of completing the |
5 | required improvements as reestablished on or about the |
6 | expiration of the preceding one-year period by using the |
7 | above bidding procedure. As the work of installing the |
8 | required improvements proceeds, the party posting the |
9 | financial security may request the authority to release or |
10 | authorize the release of, from time to time, portions of the |
11 | financial security necessary to pay the contractor performing |
12 | the work. Release requests shall be in writing addressed to |
13 | the authority, and the authority shall have 45 days after |
14 | receiving a request to ascertain from the authority engineer, |
15 | certified in writing, that the portion of the work has been |
16 | completed in accordance with the approved plat. Upon |
17 | receiving written certification, the authority shall |
18 | authorize release by the bonding company or lending |
19 | institution of an amount estimated by the authority engineer |
20 | to fairly represent the value of the improvements completed. |
21 | If the authority fails to act within the 45-day period, it |
22 | shall be deemed to have approved the requested release of |
23 | funds. The authority may, prior to final release at the time |
24 | of completion and certification by its engineer, [require |
25 | retention of] retain 10% of the [estimated cost of] original |
26 | amount of the posted financial security for the improvements. |
27 | If the authority accepts dedication of all or some of the |
28 | required improvements following completion, it may require |
29 | the posting of financial security to secure structural |
30 | integrity of the dedicated improvements as well as the |
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1 | functioning of the improvements in accordance with the design |
2 | and specifications as depicted on the final plat and the |
3 | authority's rules and regulations. This financial security |
4 | shall expire not later than 18 months from the date of |
5 | acceptance of dedication and shall be of the same type as set |
6 | forth in this paragraph with regard to that which is required |
7 | for installation of the improvements, except that it shall |
8 | not exceed 15% of the actual cost of installation of the |
9 | improvements. Any inconsistent ordinance, resolution or |
10 | statute is null and void. |
11 | * * * |
12 | (30) Where a sewer or water system of an authority is to |
13 | be extended at the expense of the owner of properties or |
14 | where the authority otherwise would construct customer |
15 | facilities referred to in paragraph (24), other than water |
16 | meter installation, a property owner shall have the right to |
17 | construct the extension or install the customer facilities |
18 | himself or through a subcontractor approved by the authority, |
19 | which approval shall not be unreasonably withheld. The |
20 | authority shall have the right, at its option, to perform the |
21 | construction itself only if the authority provides the |
22 | extension or customer facilities at a lower cost and within |
23 | the same timetable specified or proposed by the property |
24 | owner or his approved subcontractor. Construction by the |
25 | property owner shall be in accordance with an agreement for |
26 | the extension of the authority's system and plans and |
27 | specifications approved by the authority and shall be |
28 | undertaken only pursuant to the existing regulations, |
29 | requirements, rules and standards of the authority applicable |
30 | to such construction. Construction shall be subject to |
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1 | inspection by an inspector authorized to approve similar |
2 | construction and employed by the authority during |
3 | construction. When a main is to be extended at the expense of |
4 | the owner of properties, the property owner may be required |
5 | to deposit with the authority, in advance of construction, |
6 | the authority's estimated reasonable and necessary cost of |
7 | reviewing plans, construction inspections, administrative, |
8 | legal and engineering services. The authority may require |
9 | that construction shall not commence until the property owner |
10 | has posted appropriate financial security in accordance with |
11 | paragraph (23). The authority may require the property owner |
12 | to reimburse it for reasonable and necessary expenses it |
13 | incurred as a result of the extension. If an independent firm |
14 | is employed for engineering review of the plans and the |
15 | inspection of improvements, reimbursement for its services |
16 | shall be reasonable and in accordance with the ordinary and |
17 | customary fees charged by the independent firm for work |
18 | performed for similar services in the community. The fees |
19 | shall not exceed the rate or cost charged by the independent |
20 | firm to the authority when fees are not reimbursed or |
21 | otherwise imposed on applicants. Upon completion of |
22 | construction, the property owner shall dedicate and the |
23 | authority shall accept the extension of the authority's |
24 | system if dedication of facilities and the installation |
25 | complies with the plans, specifications, regulations of the |
26 | authority and the agreement. An authority may provide in its |
27 | regulations those facilities which, having been constructed |
28 | at the expense of the owner of properties, the authority will |
29 | require to be dedicated and which facility or facilities the |
30 | authority will accept as a part of its system. |
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1 | (i) In the event the property owner disputes the |
2 | amount of any billing in connection with the review of |
3 | plans, construction inspections, administrative, legal |
4 | and engineering services, the property owner shall, |
5 | within [20 working] 60 days of the date of billing, |
6 | notify the authority that the billing is disputed as |
7 | excessive, unreasonable or unnecessary, in which case the |
8 | authority shall not delay or disapprove any application |
9 | or any approval or permit related to the extension or |
10 | facilities due to the property owner's dispute over the |
11 | disputed billings unless the property owner has failed to |
12 | make payment in accordance with the decision rendered |
13 | under clause (iii) within [30] 60 days after the mailing |
14 | date of such decision. |
15 | (ii) If, within [30] 60 days from the date of |
16 | billing, the authority and the property owner cannot |
17 | agree on the amount of billings which are reasonable and |
18 | necessary, the property owner [and authority] shall have |
19 | the right to request the appointment of another |
20 | professional consultant to serve as arbitrator. The |
21 | property owner and the authority whose fees are being |
22 | challenged shall, by mutual agreement, appoint a |
23 | professional of the same profession or discipline |
24 | licensed in Pennsylvania to review the billings and make |
25 | a determination as to the amount of billings which is |
26 | reasonable and necessary. |
27 | (iii) The professional appointed as arbitrator under |
28 | clause (ii) shall hear evidence and review the |
29 | documentation as the professional in his or her sole |
30 | opinion deems necessary and shall render a decision |
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1 | within [60] 50 days of the [billing] date of appointment. |
2 | [The property owner shall be required to pay the entire |
3 | amount determined in the decision immediately.] Based |
4 | upon the decision of the arbitrator, the property owner |
5 | or authority shall be required to pay any amounts |
6 | necessary to implement the decision within 60 days. In |
7 | the event the property owner has paid the authority or |
8 | retained professional consultant an amount in excess of |
9 | the amount determined to be reasonable and necessary, the |
10 | authority or retained professional consultant shall |
11 | within 60 days reimburse the excess payment. |
12 | (iv) In the event that the authority and property |
13 | owner cannot agree upon the professional to be appointed |
14 | within [30] 20 days of the [billing date] request for |
15 | appointment of an arbitrator, the president judge of the |
16 | court of common pleas of the judicial district in which |
17 | the municipality is located, or if at the time there is |
18 | no president judge, the senior active judge then sitting |
19 | upon application of either party shall appoint a |
20 | professional, who shall be neither the authority engineer |
21 | nor any professional who has been retained by or |
22 | performed services for the authority or the property |
23 | owner within the preceding five years. |
24 | (v) The fee of the [appointed professional for | <-- |
25 | determining the reasonable and necessary expenses] |
26 | arbitrator shall be paid by the [applicant] property |
27 | owner if the [amount of payment required in the decision |
28 | is equal to or greater than the original bill] disputed |
29 | fee is sustained by the arbitrator. If the amount of |
30 | payment required in the decision is less than the |
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1 | original bill by $2,500 or more, the [authority] party |
2 | charging the disputed fee shall pay the fee of the |
3 | [professional] arbitrator. If the amount of the payment |
4 | required in the decision is less than the original bill |
5 | by $2,499 or less, the authority and the property owner |
6 | shall each pay one-half of the fee of the [appointed |
7 | professional] arbitrator. |
8 | (v) [The fee of the appointed professional for | <-- |
9 | determining the reasonable and necessary expenses shall |
10 | be paid by the applicant if the amount of payment |
11 | required in the decision is equal to or greater than the |
12 | original bill. If the amount of payment required in the |
13 | decision is less than the original bill by $2,500 or |
14 | more, the authority shall pay the fee of the |
15 | professional. If the amount of the payment required in |
16 | the decision is less than the original bill by $2,499 or |
17 | less, the authority and the property owner shall each pay |
18 | one-half of the fee of the appointed professional.] The |
19 | fee of the arbitrator shall be paid by the property owner |
20 | if the disputed fee is upheld by the arbitrator. The fee |
21 | of the arbitrator shall be paid by the authority if the |
22 | disputed fee is $2,500 or greater than the payment |
23 | decided by the arbitrator. The fee of the arbitrator |
24 | shall be paid in an equal amount by the property owner |
25 | and the authority if the disputed fee is less than $2,500 |
26 | of the payment decided by the arbitrator. |
27 | (vi) In the event that the disputed fees have been |
28 | paid and the arbitrator finds that the disputed fees are |
29 | unreasonable or excessive by more than $10,000, the |
30 | arbitrator shall: |
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1 | (A) award the amount of the fees found to be |
2 | unreasonable or excessive to the party that paid the |
3 | disputed fee; and |
4 | (B) impose a surcharge of 4% of the amount found |
5 | as unreasonable or excessive to be paid to the party |
6 | that paid the disputed fee. |
7 | (vii) An authority or property owner shall have 100 |
8 | days after paying a fee to dispute any fee charged as |
9 | being unreasonable or excessive. |
10 | * * * |
11 | Section 2. This act shall take effect in 60 days. |
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