No plan shall be granted final approval until the applicant
either:
A.
Installs all required improvements in accordance with the terms of
approval and the applicable design standards of said improvements.
B.
Posts a form of financial security, acceptable to the Borough Council,
which shall be of sufficient amount to fully cover the costs of all
required improvements in accordance with the terms of approval and
the applicable design standards of said improvements. The Borough
Council shall retain sole discretion in all matters and decisions
related to the acceptance and/or approval of the posting of any financial
security.
A.
A financial guarantee which shall be deemed as acceptable financial
security for the purposes of this chapter shall include:
(1)
An unconditional and irrevocable letter of credit with authorization
for drawing upon by the Borough in the event of default or failure
by the developer or applicant to complete the installation of required
improvements.
(2)
A restrictive escrow account.
(3)
Other types of financial security which the Borough may approve,
which approval shall not be unreasonably withheld.
B.
Such financial security shall be with a lending institution which
is chartered by the federal government or the Commonwealth of Pennsylvania
or with a bonding company which is legally authorized to conduct such
business within the Commonwealth of Pennsylvania.
When an applicant proposes to provide a financial security,
said financial security shall be submitted to the Borough Council
and its Solicitor for review not less than 14 days prior to the public
meeting of the Borough Council at which the acceptance and/or approval
of proposed financial security will be considered by the Borough Council.
The amount of financial security to be posted for the completion
or required improvements shall be equal to 110% of the cost of completion,
estimated as of 90 days following the scheduled completion date. The
amount of the required financial security shall be based upon a written
estimated cost of completion of required improvements submitted by
the developer or applicant and prepared by a professional engineer
licensed as such by the Commonwealth. Said engineer shall certify,
in writing, that his estimated cost for the completion of the required
improvements is a fair and reasonable estimate. The Borough Council,
upon the recommendation of the Borough Engineer, may, for good cause
shown, refuse to accept the developer's estimated cost. In cases where
the Borough and the developer or applicant are unable to agree on
an estimate, then the estimate shall be recalculated and recertified
by another licensed professional engineer mutually accepted by the
Borough and the developer or applicant. The estimate certified by
the third-party engineer, being presumed fair and reasonable, shall
be deemed the final estimate. In the event that the third-party engineer
is chosen, the cost of his services shall be paid equally by the Borough
and the developer or applicant.
A.
The financial security shall provide for, and secure to the public,
the completion of the required improvements within one year of the
date fixed on the final plan for the completion of such improvements.
B.
If the applicant in posting the financial security requires more
than one year from the date of posting the financial security to complete
the required improvements, the amount of financial security may be
increased by an addition 10% for each one-year period beyond the anniversary
date from posting of the financial security or to an amount not exceeding
110% of the cost of completing the required improvements as reestablished
on or before the expiration of the preceding one-year period.
In the case where development is projected over a period of
years, the Borough Council may authorize the submission of final plans
by sections or phases of development, subject to such requirements
or guarantees as to improvements in future sections or phases of development
as it finds essential for the protection of any finally approved section
of the development.
The applicant and/or developer shall provide the Borough and
the Borough Engineer with not less than a seventy-two-hour notice
prior to the commencement of work at the site.
The Borough Engineer shall make periodic inspections to the
site during the construction of improvements to ensure the work is
in conformance with the approved plans. The Borough Engineer shall
promptly provide the Borough Council with a written report after any
such inspection.
A.
As the work of installing the required improvements proceeds, the
party posting financial security may request the Borough Council 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.
B.
Any such request shall be in writing addressed to the Borough Council.
The Borough Council shall have 45 days from receipt of such request
within which to allow the Borough Engineer to certify, in writing,
to the Borough Council that such portion of the work upon the improvements
has been completed in accordance with the approved plan.
C.
Upon such certification, the Borough Council shall authorize release
by the bonding company or lending institution of an amount as estimated
by the Borough Engineer as fair in representing the value of the completed
improvements. Failure of the Borough Council to act within the said
forty-five-day period shall be deemed an approval of the release of
the funds requested.
D.
The Borough Council 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.
A.
Where Summit Hill Borough accepts dedication of all or some of the
required improvements following completion, it shall require the posting
of financial security to secure the structural integrity of said improvements,
as well as the functioning of said improvements, in accordance with
the design and specifications as shown on the final plan for a term
not to exceed 18 months from the date of acceptance of dedication.
If water mains or sanitary sewer lines, or both, along with
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. A copy
of any such executed financial security shall be provided to the Borough
Council not less than 14 days prior to its next regularly scheduled
meeting at which the final plan shall be considered.
A.
If financial security has been provided in lieu of the completion
of improvements required as a condition for final approval as set
forth in this article, the Borough shall not condition the issuance
of zoning, building, grading or other permits relating to the erection
or placement improvements, including buildings, upon the lots or land
as shown on the final plan upon actual completion of the improvements
shown on the approved final plan.
B.
If a financial security has been provided, certificates of zoning
compliance or occupancy permits for any building or buildings to be
erected shall not be withheld following:
(1)
The improvement of the streets providing access to and from existing
public roads to such building or buildings to a mud-free or otherwise
permanently passable condition; and
(2)
The completion of all other improvements as shown on the approved
final plan, either upon the lot or lots beyond the lot or lots in
question, if such improvements are deemed necessary for the reasonable
use of or occupancy of the building or buildings.
A.
When the applicant has completed all of the necessary and required
improvements, the applicant shall notify the Borough Council, in writing,
by certified or registered mail, of the completion of the aforesaid
improvements and shall send a copy thereof to the Borough Engineer.
B.
The Borough Council shall, within 10 days after receipt of such notice,
direct and authorize the Borough Engineer to inspect all the aforesaid
improvements. The Borough Engineer shall thereupon file a report,
in writing, with the Borough Council and shall promptly mail a copy
of the same to the developer. The report by the Borough Engineer shall
be made and mailed within 30 days from the aforesaid authorization
from the Borough Council.
C.
The report shall be detailed and shall indicate approval or rejection
of said improvements, either in whole or in part. If said improvements,
or any portion thereof be rejected, said report shall contain a statement
of the reasons for such rejection.
D.
The Borough Council shall notify the developer, in writing, within
15 days of receipt of the Borough Engineer's report, by certified
or registered mail, of the action of the Borough Council with relation
thereto.
E.
If the Borough Council 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 applicant shall be released
from all liability, pursuant to its performance guarantee bond or
other security agreements.
If any portion of the said improvements shall not be approved or shall be rejected by the Borough Council, the applicant shall proceed to complete the same and, upon completion, the same procedure of notification, as outlined in § 430-59, shall be followed.
Nothing herein, however, shall be construed in limitation of
the applicant's right to contest or question by legal proceedings
or otherwise any determination of the Borough Council or Borough Engineer.
A.
In the event that any improvements which may be required have not
been installed as provided in this chapter or in accordance with the
approved final plan, the Borough can enforce any corporate bond or
other security by appropriate legal and equitable remedies.
B.
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 Borough may, at its
option, install part of such improvements in all or part of the subdivision
or land development or may institute appropriate legal or equitable
action to recover the moneys necessary to complete the remainder of
the improvements.
C.
All of the proceeds, whether resulting from the security or from
any legal or equitable action, or from both, brought against the applicant,
shall be used solely for the installation of the improvements covered
by such security, and not for any other municipal purpose.
In addition to the fees noted in § 430-11 of this chapter, the developer shall be responsible for payment of all engineering fees which the Borough may incur as related to §§ 430-50, 430-51, 430-54, 430-55, 430-56 and 430-59 of this chapter. The developer shall be required to fully reimburse the Borough for said engineering fees. The developer shall also be required to fully reimburse the Borough for any engineering and/or other consulting fees which the Borough may incur for the review of any required studies and/or reports within the context of an impact analysis as so defined in Article II of this chapter. Upon notification by the Borough of such costs, the developer shall provide a certified check or money order to the Borough to fully reimburse the Borough for said engineering fees within 30 days from the billing date from Summit Hill Borough. An approved plan shall not be signed by the Borough Council nor shall any permits related to the development of the site be issued until all fees are paid in full.
A.
An applicant may contest the amount to be reimbursed to the Borough
for consulting fees. The applicant shall notify the Borough, in writing,
within 10 working days of the billing date as to which consulting
fees are disputed as being unreasonable and/or unnecessary. The applicant
shall forfeit any right to contest the amount to be reimbursed to
the Borough for consulting fees, if written notification is not submitted
within the prescribed 10 working days of the date of the billing.
B.
In such cases, the Borough Council shall not delay or disapprove
a subdivision or land development application or any permit related
to development due to the applicant's written request to contest certain
consulting expenses.
C.
If, within 20 days from the date of billing, the Borough and the
applicant cannot agree on the amount of consulting expenses which
are reasonable and necessary, then the applicant and the Borough Council
shall jointly, by mutual agreement, appoint another professional engineer,
licensed as such in the Commonwealth of Pennsylvania, to review the
said expenses and make a determination as to the amount thereof which
is reasonable and necessary.
D.
The professional engineer so appointed shall hear such evidence and
review such documentation as the professional engineer in his or her
sole opinion deems necessary and render a decision within 50 days
of the billing date. The applicant shall be required to pay the entire
amount determined in the decision immediately.
E.
In the event that the Borough Council and applicant cannot agree
upon a professional engineer to be appointed within 20 days of the
billing date, then upon application of either party, the President
Judge of the Carbon County Court of Common Pleas (or if at the time
there be no President Judge, the senior active judge then sitting)
shall appoint such engineer, who shall be neither the Borough Engineer
nor any professional engineer who has been retained by, or performed
services for, the Borough or the applicant within the preceding five
years.
F.
The fee of the appointed professional engineer for determining the
reasonable and necessary consulting expenses shall be paid by the
applicant if the amount of the payment required in the decision is
equal to or greater than the original bill. If the amount of payment
required in the decision is less than the original bill by $1,000
or more, the Borough shall pay the fee of the professional engineer.
If neither of the aforementioned cases apply, the Borough and the
applicant shall each pay 1/2 of the fee of the appointed professional
engineer.
