[Ord. 663, 6/20/1985; § 502; as amended by Ord.
829, 11/15/2001]
1. No plat shall be finally approved unless the streets shown on such
plat have been improved to a mud-free or otherwise permanently passable
condition, or improved as may be otherwise required by this Chapter
and any walkways, curbs, gutters, street lights, fire hydrants, shade
trees, water mains, sanitary sewers, storm sewers and other improvements
as may be required by this Chapter have been installed in accordance
with this Chapter. In lieu of the completion of any improvements required
as a condition for the final approval of a plat, including improvements
or fees otherwise required by this Chapter, the developer may deposit
with the Borough of Elizabethtown financial security in an amount
sufficient to cover the costs of such improvements or common amenities
including basins and other related drainage facilities, recreational
facilities, open space improvements, or buffer or screen plantings
which may be required.
2. When requested by the developer, in order to facilitate financing,
the Borough Council, 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 90 days unless a written
extension is granted by the Borough Council; such extension shall
not be unreasonably withheld and shall be placed in writing at the
request of the developer.
3. Without limitation as to other types of financial security which
the Borough of Elizabethtown may approve, which approval shall not
be unreasonably withheld, Federal or Commonwealth chartered lending
institution irrevocable letters of credit and restrictive or escrow
accounts in such lending institutions shall be deemed acceptable financial
security for the purposes of this Section.
4. Such financial security 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.
5. Such bond, or other security shall provide for, and secure to the
public the completion of any improvements which may be required on
or before the date fixed in the formal action of approval or accompanying
agreement for completion of the improvements.
6. 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 of Elizabethtown
may adjust the amount of the financial security by comparing the actual
cost of the improvements which have been completed and the estimated
cost for the completion of the remaining improvements as of the expiration
of the ninetieth day after either the original date scheduled for
completion or a rescheduled date of completion. Subsequent to said
adjustment, the Borough or Elizabethtown may require the developer
to post additional security in order to assure that the financial
security equals said 110%. Any additional security shall be posted
by the developer in accordance with this subsection.
7. The amount of financial security required shall be based upon an
estimate of the cost of completion of the required improvements, submitted
by the 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 of
Elizabethtown, upon the recommendation of the Borough engineer, may
refuse to accept such estimate for good cause shown. If the applicant
or developer and the Borough of Elizabethtown 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 of Elizabethtown 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 of Elizabethtown
and the applicant or developer.
8. 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.
9. In the case where development is projected over a period of years,
the Borough Council may authorize submission of final plats by sections
or stages of development subject to such requirements or guarantees
as to improvements in future section or stages of development as it
finds essential for the protection of any finally approved section
of the development.
10. As the work of installing the required improvements proceeds, the
party posting the 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. Any such requests shall be in
writing addressed to the Borough Council, and 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 plat. 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
fairly representing the value of the improvements completed or, if
the Borough Council fails to act within said forty-five-day period,
the Borough Council shall be deemed to have approved the release of
funds as requested. 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.
11. Where the Borough Council accepts dedication of all or some of the
required improvements following completion, the Borough Council may
require the posting of 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 plat for a term not to exceed 18 months from the date of acceptance
of dedication. Said financial security shall be of the same type as
otherwise required in this Section with regard to installation of
such improvements, and the amount of the financial security shall
not exceed 15% of the actual cost of installation of said improvements.
12. 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 of Elizabethtown,
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.
13. If financial security has been provided in lieu of the completion
of improvements required as a condition for the final approval of
a plat as set forth in this Section, the Borough of Elizabethtown
shall not condition the issuance of building, grading or other permits
relating to the erection or placement of improvements, including buildings,
upon the lots or land as depicted upon the final plat upon actual
completion of the improvements depicted upon the approved final plat.
Moreover, if said financial security has been provided, occupancy
permits for any building or buildings to be erected shall not be withheld
following 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, as well as the completion
of all other improvements as depicted upon the approved plat, either
upon the lot or lots or beyond the lot or lots in question if such
improvements are necessary for the reasonable use of or occupancy
of the building or buildings.
14. All forms of improvement guarantees, as listed herein, shall contain
language acceptable to the Borough insuring that the respective guarantee
is automatically renewable, and shall not expire or terminate without
the expressed prior written approval of the Borough.
[Ord. 663, 6/20/1985, § 503; as amended by Ord.
829, 11/15/2001; by Ord. 897, 7/17/2008]
1. When the developer has completed all of the necessary and appropriate
improvements, the developer 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.
The Borough Council shall, within 10 days 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 Borough Council, and shall promptly mail a copy
of the same to the developer by certified or registered mail. The
report shall be made and mailed within 30 days after receipt by the
Borough engineer of the aforesaid authorization from the Borough Council;
said report shall be detailed and shall indicate approval or rejection
of said improvements, either in whole or in part, and if said improvements,
or any portion thereof, shall not be approved or shall be rejected
by the Borough engineer, said report shall contain a statement of
reasons for such nonapproval or rejection.
2. The Borough Council shall notify the developer, within 15 days of
receipt of the engineer's report, in writing by certified or registered
mail of the action of said Borough Council with relation thereto.
3. 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 developer shall be released
from all liability, pursuant to its performance guaranty bond or other
security agreement.
4. If any portion of the said improvements shall not be approved or
shall be rejected by the Borough Council, the developer shall proceed
to complete the same and, upon completion, the same procedure of notification,
as outlined herein, shall be followed.
5. Nothing herein, however, shall be construed in limitation of the
developer's right to contest or question by legal proceedings or otherwise,
any determination of the Borough Council or the Borough engineer.
6. Where herein reference is made to the Borough engineer, he shall
be as a consultant thereto.
7. The applicant or developer shall reimburse the Borough of Elizabethtown
for the reasonable and necessary expense incurred for the inspection
or improvements according to a schedule of fees adopted by resolution
of the Borough Council and as from time to time amended. Such expense
shall be reasonable and in accordance with the ordinary and customary
fees charged by the Borough engineer or consultant for work performed
for similar services in the community, but in no event shall the fees
exceed the rate or cost charged by the engineer or consultant to the
Borough of Elizabethtown when fees are not reimbursed or otherwise
imposed on applicants.
A. In the event the applicant disputes the amount of any such expense
in connection with the inspection of improvements, the applicant shall,
within 10 working days of the date of billing, notify the Borough
of Elizabethtown that such expenses are disputed as unreasonable or
unnecessary, in which case the Borough of Elizabethtown shall not
delay or disapprove a subdivision or land development application
or any approval or permit related to development due to the applicant's
request over disputed engineer expenses.
B. If, within 20 days from the date of billing, the Borough of Elizabethtown
and the applicant cannot agree on the amount of expenses which are
reasonable and necessary, then the applicant and the Borough of Elizabethtown
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.
C. 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.
D. In the event that the Borough of Elizabethtown and applicant cannot
agree upon the professional engineer to be appointed within 20 days
of the billing date, then, upon application of either party, the President
Judge of the Court of Common Pleas of the judicial district in which
the Borough of Elizabethtown is located (or if at the time there be
no President Judge, then the senior active judge then sitting) shall
appoint such engineer, who, in that case, shall be neither the Borough
engineer nor any professional engineer who has been retained by, or
performed services for, the Borough of Elizabethtown or the applicant
within the preceding five years.
E. The fee of the appointed professional engineer for determining the
reasonable and necessary expenses shall be paid by the applicant if
the amount of 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 of Elizabethtown
shall pay the fee of the professional engineer, but otherwise the
Borough of Elizabethtown and the applicant shall each pay 1/2 of the
fee of the appointed professional engineer.
8. No improvement shall be considered complete until the developer shall
submit to the Borough one Mylar and two prints of the as-constructed
plan, at the same size and scale of the approved plans, showing the
following:
A. Actual location of all concrete monuments and/or markers which were
found or set at all angle breaks, points of curvature and tangents
around the perimeter of the total tract. When the outside perimeter
of a tract falls within or along an existing road right-of-way, then
the right-of-way of that roadway shall be monumented at the above-referenced
points.
B. Actual location of all iron pins or drill holes in curbs for all
individual lot lines.
C. Actual cul-de-sac radius.
D. Actual horizontal location of cartway center line versus right-of-way
center line should be indicated by dimension.
E. Actual horizontal location of floodplain by elevation and dimension
from property line.
F. Actual horizontal location and cross-section of swales and accompanying
easements.
G. Actual horizontal location and vertical location of stormwater management
facilities, including type and size of drainage pipes.
H. Detention Basin.
(1)
Actual contours of the detention basin.
(2)
Actual outlet structure details, including type, size and inverts
of outlet pipes.
(3)
Actual elevation of the embankment and emergency spillway.
(4)
Table showing the stage/storage/discharge curve for the constructed
conditions.
9. If an improvement has been dedicated to the Borough, such improvement
shall not be considered complete until the developer has presented
a deed of dedication in a form acceptable to the Borough Solicitor,
has presented a title insurance policy or certificate of title demonstrating
good and marketable title, and has paid any fees required to process
the acceptance of the dedication.
[Ord. 663, 6/20/1985, § 504]
All improvements shall be deemed to be private improvements
and only for the benefit of the specific project until such time as
the same have been offered for dedication and formally accepted by
the Borough Council by formal document. No responsibility of any kind
with respect to improvements shown on the final plan shall be transferred
until the improvements have been formally accepted.
[Ord. 663, 6/20/1985; as added by Ord. 829, 11/15/2001]
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 plat the Borough Council is hereby granted the power
to 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
Borough Council 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. 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 Borough purpose.