(A) Subdivision improvements agreement. No final plan shall be endorsed and released for recording by the Borough Council unless a subdivision improvements agreement in a form acceptable to the Borough Council and Borough Solicitor is executed. A list of all improvements required by this chapter pursuant to Form 4 (available to the borough offices) shall be included within the 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 subdivision improvements agreement have been installed, inspected and approved, in accordance with this chapter and said agreement.
(2) In lieu of the completion of any improvements as stated in division (B)(1) above, prior to endorsement of the plan, the developer shall deposit with the borough financial security in an amount sufficient to cover the cost of all improvements or common amenities required by this chapter and the subdivision 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 restrictive or escrow account in a federal or commonwealth chartered lending institution or other type of financial security which the borough 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 agreement for completion of the improvements.
(3) 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 plan contingent upon the developer obtaining satisfactory financial security. The final plan shall not be signed nor recorded until the subdivision improvements agreement is executed.
(4) The resolution or letter of contingent approval shall expire and be deemed to be revoked if the subdivision improvements agreement is not executed within 90 days unless a written extension is granted by the Borough Council.
(5) 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 developer. 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 ninetieth day after either the original date scheduled for completion or a rescheduled date of completion. Subsequent to said adjustment, the borough 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 division (B)(5).
(6) 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 the commonwealth 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 a meeting of the Borough Council. The borough, 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 are unable to agree upon an estimate, then the estimate shall be recalculated and recertified by another professional engineer licensed as such in the commonwealth and chosen mutually by the 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 borough and the applicant or developer.
(7) 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 of posting of financial security or to an amount not exceeding 110% of the cost of completing the required improvements as re-established on or about the expiration of the initial one-year period.
(8) The party posting the financial security may request the Borough Council to 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 Borough 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 45-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.
(9) 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 guarantees as to improvements 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.
(10) 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.
(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 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 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 monies 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.
(D) Release of performance guarantee.
(1) When the developer has completed all of the necessary and appropriate improvements, the developer 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 ten 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 Borough Council and promptly mail a copy of the report to the developer 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 non-approval or rejection.
(4) 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 its action.
(5) If any portion of the improvements shall not be approved or shall be rejected by the Borough Council, the developer 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 performance guarantee shall be reduced by no more than the amount which was estimated in the subdivision 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 performance guarantee and acceptance of any such improvements by the borough. Plans shall be in accordance with the requirements of § 153.088, be Mylars in reproducible form, and certified by the developer to be in accordance with actual construction. The developer shall also supply the plans in electronic format acceptable to the borough. The developer is responsible for the preparation of such plans.
(2) If any information relating to potential lot owners shown on the recorded final 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 accept 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 financial security 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 financial security shall be of the same type as permitted for installation of improvements and the amount of the financial security shall not exceed 15% of the actual cost of installation of the improvements.
(Ord. 1-2006, passed 5-8-2006)