§ 395-12. Completion and guarantee of improvements.

A. 

Subdivision improvements agreement.

(1) 

No final plan shall be endorsed by the Borough Council unless an improvements agreement in a form acceptable to the Borough Council and Borough Solicitor is executed. A unit breakdown of all improvements required by this chapter pursuant to Form 4 shall be included within such agreement.

B. 

Completion and guarantee of improvements.

(1) 

No final plan shall be endorsed by the Borough Council unless all the improvements required by this chapter and the improvements agreement have been installed, inspected and approved, in accordance with this chapter and said agreement.

(2) 

Financial security.

(a) 

In lieu of the completion of any improvements as stated in Subsection B(1) above, prior to endorsement of the record plan, the applicant shall deposit with the Borough a financial security in an amount 110% of the cost of all improvements or common amenities required by this chapter and the improvements agreement and the cost of preparing as-built drawings of those improvements. The financial security may be in the form of an irrevocable letter of credit or escrow account in a federal or commonwealth chartered lending institution or other type of financial security which the Borough Council approves. The financial security shall guarantee the completion of all required improvements on or before the date fixed in the formal action of approval or accompanying improvements agreement for completion of the improvements.

(b) 

The applicant shall also submit a cash deposit to the Borough to cover the cost established by the Borough for improvements materials and labor to be provided by the Borough pursuant to the improvements agreement.

(c) 

When requested by the applicant, in order to facilitate financing, the Borough Council shall furnish the applicant with a signed copy of a resolution indicating approval of the final plan contingent upon the applicant obtaining a satisfactory financial security. The record plan shall not be signed nor recorded until the improvements agreement is executed. The resolution or letter of contingent approval shall expire and be deemed to be revoked if the improvements 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 applicant.

(d) 

The amount of the 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 applicant. Annually, the Borough 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 Borough may require the applicant to post additional security in order to assure that the financial security equals said 110%. Any additional security shall be posted by the applicant in accordance with this subsection.

(e) 

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 and prepared by an engineer and certified by such engineer to be a fair and reasonable estimate of such cost. Such estimate shall be submitted to the Borough no less than 14 days prior to the meeting of the Borough Council at which such estimate is to be considered. The Borough Council, upon the recommendation of the Borough Engineer, may refuse to accept such estimate for good cause shown. If the applicant and the Borough Council are unable to agree upon an estimate, then the estimate shall be recalculated and recertified by another engineer chosen mutually by the Borough and the applicant. 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 and the applicant.

(f) 

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 the financial security may be increased by an additional 10% for each one-year period beyond the first anniversary date of 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 initial one-year period.

(g) 

The party posting the financial security may request the Borough Council to release or authorize release, from time to time, such portions of the financial security necessary for payment to the contractors performing the work. Any such requests shall be in writing addressed to the Borough Council, and the Council shall have 45 days from receipt of such requests 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 subdivision or land development plan. 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. If the Borough Council fails to act within said forty-five-day period, the 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 the Borough Engineer, require retention of 10% of the estimated cost of the aforesaid improvements.

(h) 

In the case where development is projected over a period of years, the Borough may authorize submission of final plans by sections or stages of development, subject to such requirements or improvements guarantees in the future sections or stages of development as it finds essential for the protection and proper development of any finally approved section of the development.

C. 

Remedies to effect completion of improvements. In the event that any improvements which are required by this chapter have not been installed as provided in this chapter or in accord with the approved final plan, the Borough may enforce any improvements agreement by appropriate legal and equitable remedies. If the proceeds of such improvements guarantee are insufficient to pay the cost of installing or making repairs or corrections to all the improvements covered by said financial security, the Borough 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 improvements guarantee or from any legal or equitable action brought against the applicant, or both, shall be used solely for the installation of the improvements covered by such financial security.

D. 

Release of improvements guarantee.

(1) 

When the applicant has completed all of the necessary and appropriate improvements, the applicant shall notify the Borough Council, by certified or registered mail, of the completion of the Improvements and shall send a copy of the notice to the Borough Engineer.

(2) 

The Borough Council shall within 10 days after receipt of notice of completion of improvements direct and authorize the Borough Engineer to inspect the improvements. The Borough Engineer shall then submit a written report regarding the Improvements to the Council and promptly mail a copy of the report to the applicant by certified or registered mail.

(3) 

The report shall be made and mailed by the Borough Engineer within 30 days after receipt of authorization from the Borough Council. The report shall be detailed and shall indicate approval or rejection of the Improvements, either in whole or in part. If the improvements or any portion thereof shall not be approved or shall be rejected by the Borough Engineer, the report shall contain a statement of reasons for such nonapproval or rejection.

(4) 

The Borough Council shall notify the applicant within 15 days of receipt of the engineer's report, in writing by certified or registered mail of their action.

(5) 

If any portion of the Improvements shall not be approved or shall be rejected by the Borough Council, the applicant shall proceed to complete the Improvements, and upon completion the same procedure of notification as outlined above shall be followed.

(6) 

When completed improvements have been approved by the Borough, the improvements guarantee shall be reduced by no more than the amount which was estimated in the improvements agreement for the approved improvements.

E. 

Preparation of as-built plans.

(1) 

As-built plans for all improvements within the subdivision or land development listed in the subdivision improvements agreement shall be submitted to the Borough within 30 days after inspection and approval of the improvements by the Borough and prior to the release of the improvements guarantee and acceptance of any such improvements by the Borough. Plans shall be in accordance with the requirements of § 395-17 of this chapter, be Mylars in reproducible form, and certified by the applicant's engineer to be in accordance with actual construction. The location and elevation of all sewer laterals and water services shall also be indicated. The applicant shall be responsible for the preparation of such plans.

(2) 

If any information relating to potential lot owners shown on the recorded plan shall have been changed, such as lot boundaries, easements, and maintenance responsibilities, a revised subdivision and/or land development plan shall be filed with the Borough in accordance with the procedures of this chapter.

F. 

Maintenance guarantee. Where the Borough Council accepts dedication of all or some of the required improvements within a subdivision or land development following completion, the Borough Council may require the posting of a maintenance guarantee to secure structural integrity of said Improvements as well as the functioning of said improvements in accordance with the design specifications as depicted on the final plan for a term not to exceed 18 months from the date of acceptance of dedication. The maintenance guarantee shall be of the same type as permitted for installation of improvements and the amount of the maintenance guarantee shall not exceed 15% of the actual cost of installation of the improvements.