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, streetlights, street
trees and other improvements as may be required have been installed
in accordance with this chapter.
A.
Improvements required. No plan shall be signed by this Commission and/or borough for recording in the office of the Cumberland or Franklin County Recorder of Deeds unless all improvements required by this chapter have been installed in accordance with this chapter, except as provided in § 137-21.
B.
Improvement construction. Upon approval of the preliminary
plans specified in this chapter, the applicant may construct the required
improvements shown on the plan. The developer shall indicate the intent
to construct the required improvements by executing the applicable
Memorandum of Understanding to be submitted at the time an application
is made for approval of a preliminary plan.
C.
Inspection of required improvements. As stipulated
in the executed Memorandum of Understanding, the Municipal Engineer
shall be responsible for inspection and approval of the required improvements.
The Engineer and developer shall agree upon a notification procedure
and a schedule of inspections to be made during construction and upon
completion of all improvements.
D.
Recording of final plan. Upon completion of the required
improvements and notification from the Municipal Engineer that all
improvements have been completed in accordance with this chapter,
the developer may proceed to submit final plans. Final plans shall
be prepared and submitted in conformance with the requirements of
this chapter. Upon review and approval of the final plans by the borough
as stipulated in this chapter, the plans may be recorded in the office
of the Cumberland or Franklin County Recorder of Deeds. The final
plans shall be recorded before the sale of any lots or the construction
and occupancy of buildings shown on the plans.
A.
General provisions.
(1)
In lieu of the construction and completion of the
improvements required by this chapter prior to recordation, the developer
may deposit final security in an amount sufficient to cover the costs
of such improvements or common amenities. Said improvement construction
guaranty shall be prepared in accordance with this chapter and is
subject to the acceptance by the municipality or the Authority, as
the case may be. The developer shall indicate the intent to provide
an improvement construction guaranty by executing the applicable Memorandum
of Understanding to be submitted as stipulated at the time application
is made for approval of a final plan.
(2)
The administration of improvement construction guaranties
shall comply with the provisions of this article and other applicable
laws of the commonwealth.
(3)
All guaranties shall be prepared by the developer
in the form required by the municipality or the Authority, as the
case may be.
(4)
In the case of stormwater facilities, all facilities
which are proposed to be constructed in the overall development shall
be constructed in the initial phase of construction, unless it is
not feasible to complete such facilities, in which case the developer
may propose construction of temporary facilities in subsequent phases
of the development for the purpose of ensuring that stormwater is
managed in the entire proposed development, so as to ensure the integrity
of the facilities whether or not the subsequent pleases are completed.
Bonding for stormwater facilities shall continue until all stormwater
facilities have been completed.
[Added 8-5-1997 by Ord. No. 681, approved 8-5-1997]
B.
Form of financial security. The following are acceptable
forms of guaranties. All other forms of guaranties must be individually
approved by the borough.
(1)
Surety performance bond. A security bond from a surety
bonding company authorized to do business in the Commonwealth of Pennsylvania.
The bond shall be payable to the municipality or the Authority.
(2)
Escrow account. A deposit of cash either with the
municipality or Authority accepting the improvement of in escrow with
a federal or commonwealth chartered financial institution. In the
case of an escrow account, the developer shall file, with the local
municipality 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 the municipality 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 the municipality or Municipal
Authority for use in the completion of those improvements.
(3)
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 the municipality or Authority and shall certify
the following:
(a)
The amount of credit.
(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 the municipality or Municipal Authority,
the creditor shall pay to the municipality or Authority, immediately
and without further action, upon presentation of a sight draft drawn
on the issuing lending institution in an amount to which the municipality
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 released or partially
released by the municipality or Authority.
C.
Amount of guaranty.
(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, the municipality
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. The municipality
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 the municipality 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 the municipality 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 the municipality
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.
D.
Protection of final phases. In the case where development
is projected over a period of years, the Planning Commission may authorize
submission of final plats by section or stages of development subject
to such requirements or guaranties 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.
E.
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. Five copies
of the plan shall be submitted to the borough.
F.
Partial release of funds. As the work of installing
the required improvements proceeds, the party posting the financial
security may request the municipality or Authority to release or authorize
the release of, 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 the borough
and shall be accompanied by as-built drawings. The borough or Authority
shall have 45 days from receipt of such request within which to allow
the Municipal Engineer 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
the 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 the borough or Authority fails to
act within said forty-five-day period, the borough 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,
the borough or Authority may require retention of 10% of the estimated
cost of the aforesaid improvements.
G.
Release from improvement bond.
(1)
When the developer has completed all of the necessary
and appropriate improvements, the developer shall notify the 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. The 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 the 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 the borough or Authority
the conditions and reasons upon which the disapproval is based.
(2)
The 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 the 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 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.
Inspections required. The Commission or the
municipality and/or the Authority which is to inspect the improvement
shall require inspections of the plans for correctness and inspections
of the construction of the improvements. The applicant shall agree
to reimburse the borough and/or Authority for any and all necessary
expenses incurred on the inspection of such improvements, including
but not limited to engineering services, surveys, administrative costs
and legal expenses. Such reimbursement shall be based upon a schedule
established by ordinance or resolution. Such expense shall be reasonable
and in accordance with the ordinary and customary fees charged by
the Municipal 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 municipality
or the Authority when fees are not reimbursed or otherwise imposed
on applicants.
A.
In the event that the applicant disputes the amount
of any such expense in connection with the inspection, the applicant
shall, within 10 working days of the date of billing, notify the municipality
or the Authority which performed the inspection that such expenses
are disputed as unreasonable or unnecessary. A subdivision or land
development application or any approval or permit related to development
shall not be delayed or disapproved due to the applicant's request
over disputed engineer expenses.
B.
If, within 20 days from the date of billing, the municipality
or the Authority and the applicant cannot agree on the amount of expenses
which are reasonable and necessary, then the applicant and public
agency shall jointly, by mutual agreement, appoint another professional
engineer licensed as such in the Commonwealth of Pennsylvania to review
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 pay the entire amount
determined in the decision immediately.
D.
In the event that the municipality or the Authority
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 municipality is located (or if at the time there
is no President Judge, then the Senior Active Judge then sitting)
shall appoint such engineer, who, in that case, shall be neither the
Municipal Engineer nor any professional engineer who has been retained
by or performed services for the municipality or the applicant within
the preceding five years.
E.
The developer shall provide at least 24 hours' notice
prior to the start of construction of any improvements that are subject
to inspection.
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 municipality 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 a municipality 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 guaranty shall be posted or shown on the application
for 18 months after the date of acceptance of improvements. Such financial
security shall be of the same type as required to guarantee construction
of improvements and shall be 15% of the actual cost of installation
of said improvements.
