No project shall be considered in compliance with this chapter
until the streets, street signs, sidewalks and walkways, gutters and
curbs within street rights-of-way, buffer planting, shade trees, storm
drainage facilities, sanitary sewer facilities for dedication (exclusive
of laterals), water supply facilities (exclusive of laterals), fire
hydrants, lot line markers, survey monuments, street lights, street
trees and other improvements as may be required have been installed
in accordance with this chapter.
In lieu of the construction and completion of the improvements
required by this chapter prior to recordation, the developer may deposit
financial security in an amount sufficient to cover the costs of such
improvements or common amenities. Said improvement construction guarantee
shall be prepared in accordance with this chapter and is subject to
the acceptance by East Petersburg Borough or the authority as the
case may be. The developer shall indicate the intent to provide an
improvement construction guarantee by executing the applicable memorandum
of understanding to be submitted as stipulated at the time application
is made for approval of a final plan. The administration of improvement
construction assurances shall comply with the provisions of this article
and other applicable laws of the commonwealth. All guarantees shall
be prepared by the developer in the form required by East Petersburg
Borough or the authority as the case may be.
A. Form of financial security. The following are acceptable forms of
guarantees. All other forms of guarantees must be individually approved
by East Petersburg Borough.
(1)
Escrow account. A deposit of cash with either 1) East Petersburg
Borough or authority accepting the improvement or 2) in escrow with
a federal or commonwealth chartered financial institution. In the
case of an escrow account, the developer shall file, with East Petersburg
Borough or municipal authority, an agreement between the financial
institution and himself guaranteeing the following:
(a)
That the funds of said escrow account shall be held in trust
until released by East Petersburg Borough or authority and may not
be used or pledged by the developer as security in any other matter
during that period.
(b)
In the case of a failure on the part of the developer to complete
said improvements, the institution shall immediately make the funds
in said account available to East Petersburg Borough or municipal
authority for use in the completion of those improvements.
(2)
Letter of credit. An irrevocable commercial letter provided
by the developer from a federal or commonwealth chartered financial
institution or other reputable institution. This letter shall be deposited
with East Petersburg Borough or authority and shall certify the following:
(b)
In case of failure on the part of the developer to complete
the specified improvements within a time period specified in a written
agreement between East Petersburg Borough or municipal authority,
the creditor shall pay to East Petersburg Borough or authority, immediately
and without further action, upon presentation of a sight draft drawn
on the issuing lending institution in an amount to which East Petersburg
Borough or authority is entitled, or upon presentation of the original
letter of credit, such funds as are necessary to finance the completion
of those improvements, up to the limit of credit stated in the letter.
(c)
The letter of credit is irrevocable and may not be withdrawn,
or reduced in amount, until release or partially released by East
Petersburg Borough or authority.
B. Amount of guarantee.
(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 developer. Annually, East Petersburg Borough or
authority 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 90th day after either the original date
scheduled for completion or a rescheduled date of completion. Subsequent
to said adjustment, the developer shall 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.
(2)
The amount of financial security required shall be based upon
an estimate of the cost of completion of the required improvements,
submitted by an 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. East Petersburg
Borough or authority, upon the recommendation of the Municipal Engineer,
may refuse to accept such estimate for good cause shown. If the applicant
or developer and East Petersburg Borough or authority 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 East Petersburg Borough 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 applicant or developer
and East Petersburg Borough or authority.
(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 an additional 10% for each one-year period beyond the
first anniversary date from each 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.
C. Protection of final phases. In the case where development is projected
over a period of years, East Petersburg Borough may authorize submission
of final plats by section or stages of development subject to such
requirements or guarantees as to improvements in future sections or
stages of development as it finds essential for the protection of
any finally approved section of the development.
D. As-built plan. After final plan approval and upon completion of all
required improvements, the developer shall submit an as-built plan
showing the location, dimension, and elevation of all improvements.
Such plan shall indicate that the required grading, drainage structures,
and/or drainage systems and erosion and sediment control practices
have been installed in substantial conformance with the previously
approved final plan. The as-built plan shall specify all deviations
from the previously approved drawings. Two paper copies and one electronic
copy of the plan shall be submitted to East Petersburg Borough.
E. Partial release of funds. As the work of installing the required
improvements proceeds, the party posting the financial security may
request East Petersburg Borough or authority to release or authorize
the release, from time to time, 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 East
Petersburg Borough or to the governing body of the public agency and
shall be accompanied by as-built drawings. East Petersburg Borough
or authority shall have 45 days from receipt of such request within
which to allow the East Petersburg Borough or authority engineer,
as appropriate, to certify, in writing, that such portion of the work
upon the improvements has been completed in accordance with the approved
plat. Upon such certification, East Petersburg Borough or authority
shall authorize release by the bonding company or lending institution
of an amount fairly representing the value of the improvements completed.
If East Petersburg Borough or authority fails to act within said forty-five-day
period, the governing body of the agency shall be deemed to have approved
the release of funds as requested. Prior to final release at the time
of completion and certification by its engineer, East Petersburg Borough
or authority may require retention of 10% of the original estimated
cost of the aforesaid improvements.
F. Release from improvement bond.
(1)
When the developer has competed all of the necessary and appropriate
improvements, the developer shall notify East Petersburg Borough or
authority that will accept dedication of the improvements, in writing,
by certified or registered mail, of the completion of the aforesaid
improvements and shall send a copy thereof to the Municipal Engineer
or authority's engineer. East Petersburg Borough or authority
shall, within 10 days after receipt of such notice, direct and authorize
its engineer to inspect the improvements. A detailed report of the
inspection shall be prepared and mailed to East Petersburg Borough
or the authority within 30 days of such authorization. A copy of the
report shall also be mailed by registered or certified mail to the
developer. The report shall contain the engineer's recommendations
of approval or rejection, either in whole or in part, of any improvements.
If any improvement is not approved by the engineer, the engineer shall
report to East Petersburg Borough or authority the conditions and
reasons upon which the disapproval is based.
(2)
East Petersburg Borough or authority shall notify the developer
within 15 days of receipt of the engineer's report, in writing
by certified or registered mail, of the decision to accept or not
accept the improvements.
(3)
If East Petersburg Borough or authority or the Municipal Engineer
or engineer for the authority 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, 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.
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
East Petersburg Borough or authority by ordinance, resolution, deed,
or other 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. No improvement shall
be accepted for dedication except upon submission of as-built drawings
by the developer and inspection of the final construction.
When East Petersburg Borough and/or authority has accepted dedication
of certain improvements, it may, at its discretion, require the applicant
to submit 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 plans.
Such guarantee shall be posted or shown on the application for one
year after the construction thereof or until acceptance of improvements
has been consummated, a period not to exceed 18 months. Such financial
security shall be of the same type as required to guarantee construction
of improvements and shall not exceed 15% of the actual cost of installation
of said improvements.