A. 
This Article VII shall apply unless Borough Council determines that a subdivision or land development will not involve public improvements that need a financial guarantee. Before approving any subdivision for recording or as a condition of a land development approval, Borough Council shall require that the Borough be assured by means of a proper development agreement and performance guarantee that the improvements required by this chapter and the improvements appearing on the plan will be installed in strict accordance with the standards and specifications of this chapter, unless:
(1) 
If a developer chooses to install all required improvements prior to construction of any building, in place of using performance guarantees, in which case, the Borough shall, as deemed necessary, require the developer to have adequate insurance, hold harmless agreements, an escrow account to cover the costs of inspections and a professional estimate of the costs of the improvements (to be used to establish the amount of the inspections escrow).
B. 
Purpose of security: The security required by this article shall stand as security for compliance with all Borough ordinances, other laws, covenants, stipulations, conditions and rules applicable to the subdivision or land development for which it is filed.
C. 
When public improvements are required, no construction of buildings or paving or sales of any individual lot or condominium unit shall occur within a subdivision or land development unless:
(1) 
There is on file, with the Borough, current duly executed and approved security; or
(2) 
All rough grading is complete and all required public improvements, utilities, streets, drainage facilities, sewers and streetlights have been completed and accepted by Borough Council.
A. 
Unless specifically approved otherwise by Borough Council, the subdivider or land developer shall be responsible for the installation of all improvements required by this chapter.
B. 
The Borough Engineer or other Borough designee shall make such inspections of the required improvements at such intervals as may be reasonably necessary to assure compliance with this chapter. The reasonable costs of such inspection shall be borne by the subdivider or land developer, making use of an escrow account.
A. 
Development agreement required:
(1) 
All applicants proposing any subdivision or land development which provides for the installation of improvements required by this chapter or any improvements or amenities which appear on the final plan may be required by Borough Council to enter into a legally binding development agreement with the Borough prior to recording of the final plan, unless the applicant agrees to meet § 495-37 concerning the construction of all improvements prior to the construction of any buildings or the sale of any lots or homesites.
(2) 
Any development agreement shall guarantee the installation of said improvements in strict accordance with all Borough requirements.
B. 
Terms of development agreement: Any development agreement shall be acceptable in legal form to the Borough Solicitor and shall be acceptable in content to Borough Council. The Borough may require that a development agreement include any of the following items, where applicable, and such additional items as are necessary to carry out this chapter:
(1) 
The construction depicted on the approved plans, listed in itemized format, including all approved streets, drainage facilities, utility lines and other improvements.
(2) 
A work schedule setting forth the beginning and ending dates of such work tied to the construction of the development, and provisions to allow proper inspection by the Borough Engineer.
(3) 
The provision of a performance guarantee for completion of required improvements in compliance with § 495-40, including a detailed breakdown of the estimated costs of the improvements, including the total amount of the performance guarantee.
(4) 
Provisions for the dedication of streets, water and sewer lines and any other easements or improvements approved to be dedicated.
(5) 
See § 495-45 concerning the requirement for a "record" plan.
(6) 
Provisions for the developer to reimburse the Borough for all reasonable engineering costs directly related to the review, construction and inspection of the proposed development and to the review and preparation of the development agreements.
(7) 
Provisions concerning any violations of the development agreement.
(8) 
Signatures. The development agreement shall be signed by all responsible landowners and/or developers.
C. 
Sale of land:
(1) 
Where public improvements are required, any conveyance of all or a substantial portion of the unimproved lots or public improvements or streets of any subdivision or change in developers, whether voluntary or by action of law or otherwise, shall require the prior approval of the Borough.
(2) 
In giving or denying said approval, Borough Council shall require that such new landowner and/or developer fully assume all applicable responsibilities under the development agreement and post all the appropriate security agreements.
D. 
Utility agreements: If a development will connect into a public water or public sanitary sewage system, the applicable authority, agency or company may also require separate development agreements.
The performance guarantee for completion of required improvements shall meet the following requirements:
A. 
Security.
(1) 
The guarantee shall be secured by the credit of any of the following:
(a) 
An irrevocable and unconditional letter of credit of a federal or state-chartered lending institution;
(b) 
A restrictive or escrow account in a federal or state-chartered lending institution; or
(c) 
Such other financial security approved by Borough Council (which approval shall not be unreasonably withheld), but not including a second or third mortgage on the unimproved lands.
(2) 
Such approved security shall provide for, and secure to the public, the completion of any improvements which may be required within one year of the date fixed in the development schedule for the completion of such improvements.
(3) 
Such financial security shall be posted with a federally issued or state-chartered lending institution chosen by the party posting the financial security, or such other approved entity, provided such institution or entity is authorized to conduct such business within the state.
(a) 
Borough Council may require that evidence be provided that such institution or entity has sufficiently adequate and secure assets to cover the security.
(b) 
The Borough shall be the authorized signatory on any account in which the escrow funds are held.
B. 
Amount of security.
(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 in the official development schedule and within the process for increases to cover inflation as permitted by the Pennsylvania Municipalities Planning Code.
(2) 
The cost of the improvements shall be established by an estimate prepared by a Pennsylvania-registered professional engineer, which shall be reviewed by the Borough Engineer, within the arbitration process permitted by the Pennsylvania Municipalities Planning Code.
(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 a maximum of 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 procedure.
(4) 
Inspection fees. The amount of financial security shall also include an additional 5% of the estimated cost of completion of the work to guarantee payment of inspection fees and related engineering costs.
A. 
Release of security: The provisions of the Pennsylvania Municipalities Planning Code, as amended, regarding the release of financial security shall apply.
B. 
Completion of unaccepted improvements: The developer shall complete any required improvements that the Borough Council determines are not satisfactory or complete, prior to the release of related financial security.
C. 
Certificates of occupancy and completion of improvements:
(1) 
A temporary or final certificate of occupancy shall not be issued and a structure shall not be occupied unless all principal buildings have access to a clearly permanently passable street with at least a complete paving base course and any required curbing installed.
(2) 
In addition to Subsection C(1) above, no final certificate of occupancy shall be issued until the structure is completed as approved with service by all required utilities and with all access onto a street completed to required standards, if applicable.
A. 
Enforcement of security.
(1) 
In the event that any improvements that were required have not been installed as provided in this chapter or the approved final plan or the development agreement, or in the event of the bankruptcy of the owner or developer, or in the event the performance security lapses in time before the required improvements are completed, then Borough Council is hereby granted the power to elect to enforce any security posted under this chapter by appropriate legal and equitable remedies.
(a) 
Such remedies may include taking all actions necessary to ensure improvements are completed without cost to the Borough, including but not limited to:
[1] 
Seizure of undeveloped lots;
[2] 
Seizure of escrow funds;
[3] 
Revocation or suspension of building permits or suspension of issuance of new building permits;
[4] 
Nonrelease of performance securities;
[5] 
Nonapproval of occupancy certificates;
[6] 
Request for additional performance security;
[7] 
Nonacceptance of improvements;
[8] 
Removal, reconstruction or replacement of substandard improvements at the cost of the developer; and
[9] 
Civil prosecution of a violation of this chapter.
(b) 
Construction without inspection: If required improvements have been completed without providing the Borough Engineer or his/her representatives with proper opportunity for inspection, and as a result the Borough Engineer cannot determine whether the improvements were properly constructed, then Borough Council may require that the developer, at the developer's expense, remove, replace, sample, test or reconstruct such improvements as necessary to determine compliance with this chapter and other applicable Borough standards.
(2) 
Rate of construction: Failure of a developer to construct streets and other public improvements reasonably at the same time or prior to the construction of the buildings served by those streets or public improvements, and at the same rate in time at which buildings are completed, shall be a violation of this chapter and a cause for default of the security.
B. 
Completion by Borough: If the proceeds of such security are insufficient to pay the cost of installing or making repairs or corrections to all the improvements covered by said security, Borough Council may, at its option, install or replace 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.
C. 
Proceeds for installation of improvements: The proceeds from use of the security and/or from any legal or equitable action brought against the developer shall be used solely for the installation of the improvements covered by such security and directly related administrative costs.
A. 
Maintenance guarantee required: All applicants proposing any subdivision or land development which provides for the dedication of improvements required by this chapter may be required to provide a legally binding maintenance guarantee to the Borough prior to acceptance of dedication of the improvements by the Borough. In most cases, this guarantee will be part of the security agreement.
B. 
Terms of maintenance guarantee: Any maintenance guarantee shall be acceptable in legal form to the Borough Solicitor and in content to Borough Council. The Borough Council may require that the maintenance guarantee include all of the following:
(1) 
That the applicant make any repair or reconstruction of any improvement stipulated in the maintenance agreement which is specified by Borough Council if needed because of faulty construction, workmanship or materials, prior to acceptance of such improvement by the Borough;
(2) 
That the applicant maintain at his/her own cost all improvements stipulated in the maintenance agreement, up to a maximum period of 18 months from the date of completion, except for any special purpose escrow or maintenance agreements required by the Borough;
(3) 
That the applicant post 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 plan, for a maximum term of 18 months from the date of completion; and
(4) 
That the developer plow snow and maintain all streets until such time as the Borough may accept such streets.
C. 
Public utilities and authorities: If water mains or sanitary sewer lines, or both, and related apparatus or facilities are to be installed under the jurisdiction and under the rules and regulations of a public utility or municipal authority, 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. This amount of financial security shall not also be required by the Borough if it is required by such utility or authority.
D. 
Type of security: The maintenance guarantee shall be secured by the same form of security as is permitted for the improvements guarantees.
E. 
Terms: Any maintenance guarantee shall be in the form approved by the Borough Solicitor and Borough Council, payable to the Borough, to guarantee the maintenance and repair of the streets and other public improvements in the subdivision or land development for 18 months from the date of completion. The applicant shall prove to the satisfaction of Borough Council that there will be an acceptable system for the long-term maintenance of any stormwater detention basins.
F. 
Amount: The amount of the maintenance guarantee shall be determined by the applicant's engineer, conditioned upon acceptance by Borough Council, but shall not exceed 15% of the actual cost of installation of such improvements.
G. 
Release: After a maximum of 18 months from the date of completion of said improvements, the Borough shall release the maintenance guarantee to the developer (or party that posted the guarantee) if all improvements are in satisfactory condition, as determined by the Borough.