A. 
Compliance with chapter. No project shall be considered in compliance with this chapter until the developer constructs and installs all required improvements according to the approved plan, Borough approval, improvements agreement, permits, and all applicable laws, ordinances, and resolutions, including, but not limited to, those relating to review fees, inspection fees, and security.
B. 
Developer's responsibility. The developer shall pay all costs connected with the design, acquisition of materials, acquisition of or interest in lands, installation of required improvements, cost of dedication related to improvements, and Borough fees. The developer shall obtain and maintain in full force and effect all required approvals and permits. The developer shall comply with all resolutions relating to payment of consultant review fees and maintain a developer's expense escrow account.
C. 
Required submission. The developer of projects that include required improvements shall provide the Borough, and where relevant, the Borough authorities, an executed improvement guarantee (whether by posting financial security or installation of required improvements pursuant to a preliminary plan), up-to-date expense escrow, executed improvements agreement and, as necessary, post financial security as required by the Borough. With an offer of dedication, the developer is required to provide dedication documents, easement documents, bills of sale, and a maintenance guarantee.
D. 
Start of construction.
(1) 
Unless authorized by the Borough, no work shall commence until the developer complies with § 194-206.
(2) 
Unless authorized by the Borough, no work shall commence until:
(a) 
All required federal, state and local permits and approvals are received;
(b) 
The developer reimburses the Borough for all review fees and any other sums due and owing which relate to the subject property;
(c) 
The improvements agreement is executed;
(d) 
The developer's expense escrow account is established and funded;
(e) 
Approved financial security (if applicable) is provided;
(f) 
Approved insurance is provided;
(g) 
A preconstruction conference is conducted with Borough staff; and
(h) 
A notice to proceed is issued, in writing, by the Borough.
E. 
Private work. Work to be executed by the developer pursuant to the approved plan or improvements agreement shall not be considered "public work" within the meaning of the Pennsylvania Prevailing Wage Act,[1] and funds received by the Borough from security established pursuant to this chapter shall not be considered "funds of a public body." The bidding requirements of the Borough Code shall not apply.
[1]
Editor's Note: See 43 P.S. § 165-1 et seq.
F. 
Security for utilities. Financial security as otherwise required by this article does not apply to sanitary sewer and water supply facilities that are:
(1) 
Installed under the jurisdiction and pursuant to the rules and regulations of a public utility or an authority other than the Borough authorities; and
(2) 
Subject to financial security to assure proper completion, and maintenance thereof is posted in accordance with the regulations of the controlling public utility or authority.
G. 
Security for state routes. Financial security as otherwise required by this article does not apply when financial security is required by, and provided to, PennDOT in connection with the issuance of a highway occupancy permit pursuant to Section 420 of the Act of June 1, 1945 (P.L. 1242, No. 428), known as the "State Highway Law."[2]
[2]
Editor's Note: See 36 P.S. § 670-101 et seq.
H. 
Developer default. Where required improvements have not been properly or timely completed, or where the developer otherwise breaches any of the terms and conditions of the improvements agreement; the Borough may claim against the financial security posted by the developer and undertake to install, construct, erect and/or complete such portions of the improvements as are then not completed, repaired or replaced as well as any portions of the improvements deemed defective or deficient, or otherwise cure the developer's default or breach. The Borough may use the security to pay for all costs (including fees for engineers, attorneys and other necessary consultants) incurred in identifying, inspecting, enforcing and completing the developer's obligation. To complete the work, the Borough may do some or all of the work using its own labor force (and reimburse itself for all of the direct and indirect costs thereof, including, but not limited to, employee wage and benefits costs, insurances, and engineering, legal, and consulting fees) and/or may contract directly with third parties. The Borough shall not be required to bid any work, and the developer shall become immediately responsible to pay to the Borough any deficiency incurred as a result of the default or breach. The Borough shall retain all other rights and remedies to secure compliance with the conditions of approval, the terms of the improvements agreement and completion of the work.
I. 
Violations of improvements agreement. In addition to any other remedies at law or equity, any violation of this article, including the terms of any improvements agreement shall be subject to the penalties and remedies afforded by the MPC.
A. 
General requirements. The developer shall provide an escrow account at the time an application for subdivision or land development is filed with the Borough. The escrow account is for reimbursement to the Borough for consultant review fees and other associated cost and fees relating to the project. The escrow account shall comply with the provisions of the approved Borough resolution. The escrow account shall be held in the name of, and be administered by, the Borough for payment of all costs incurred by the Borough and to be reimbursed by the developer pursuant to this chapter. The account shall be irrevocable, and the funds may not be withdrawn or reduced in amount by other than the Borough.
B. 
Duty to replenish. At such time as the funds held in the escrow account are depleted by 1/2 prior to project closeout, the developer shall deposit into the escrow account additional funds as shall be determined by the Borough, not to exceed the original escrow amount. Such funds shall be provided to the Borough within 10 business days of the date of the Borough's written request for same. Any failure of the Borough to notify the developer of a deficiency in an escrow account or any failure to demand escrow account replenishment shall not constitute a defense to, or waiver of, any claim by the Borough to be reimbursed for fees paid or incurred by the Borough in connection with the review, observation, and comment on the developer's application, and construction of the public improvements and common amenities contemplated by the developer's preliminary or final plan.
C. 
Developer responsibility to reimburse Borough. In accordance with the MPC and any improvements agreement, the developer shall reimburse the Borough for all professional consultant review fees as herein defined. No construction contemplated by a plan shall commence and no recording of a plan shall occur until all consultant review fees paid or incurred by the Borough are reimbursed by the developer.
D. 
Other reimbursable fees. In addition to consultant review fees, the developer shall pay or reimburse to the Borough administrative document processing, notary fees, recording fees, and such other fees as may occur.
E. 
Payment schedule. No construction of required improvements contemplated by an application shall commence and no recording of a plan shall occur until all fees paid or incurred by the Borough are paid by the developer in accordance with this chapter, applicable resolutions and/or the improvements agreement, as applicable.
F. 
Expense escrow account. Following application approval and as a condition of recording a plan, in order to fund and secure the developer's obligations, the developer shall enter into an appropriate agreement with the Borough and a developer's expense escrow account pursuant to § 194-403 of this chapter.
G. 
Interest charged on unpaid fees. In the event that the Borough issues an invoice for charges in excess of the existing escrow account balance, in addition to the obligation to replenish the escrow account, the developer shall pay all sums due and owing as reflected on the invoice within 30 calendar days of the date thereof. Thereafter, the unpaid balance of fees shall incur interest at the rate of 1.5% per month, not to exceed 18% per annum (not compounded).
H. 
Failure to pay fees and maintain funds. A failure by the developer to timely replenish an escrow account or to pay the Borough's bill for consultant review fees may, in the sole discretion of the Borough, result in the imposition of any or all of the preventive remedies found in Section 515.1 of the MPC, and/or the issuance of a stop-work order. In addition to these remedies, the Borough shall retain the right to initiate and prosecute actions at law or in equity to obtain payment and/or reimbursement of consultant review fees. In the event that the Borough shall initiate suit to recover consultant review fees, the Borough shall be entitled to claim and recover all costs, witness fees, expert witness fees and reasonable attorney fees relating to the prosecution of the claim.
I. 
Fee disputes. If, in accordance with the requirements of the MPC, a developer disputes the reasonableness or necessity of a consultant review fee, any appeal taken and perfected shall not stay the developer's obligations to pay or reimburse the Borough hereunder, and the developer shall pay to the Borough the full amount of the consultant review fees then due and owing without deducting from the sum in dispute.
A. 
Agreement required. Where an approved application includes required improvements or common amenities, the developer shall enter into a written improvements agreement providing for construction standards, financial security, expense escrow funds, maintenance guarantees, insurance, indemnification, and such other matters as the Borough shall deem necessary construct the approved application.
B. 
Insurance. The improvements agreement shall include, at a minimum, the following provisions related to insurance. Upon request, full copies of the insurance policy shall be provided to the Borough. Failure to comply with this section shall constitute a violation of this chapter.
(1) 
The developer shall obtain and maintain in full force and effect, until 18 months after the required improvements have been finally approved or, if appropriate, dedicated or sold to the Borough, whichever is later, the following insurance policies and coverage:
(a) 
Comprehensive commercial general liability insurance coverage, including premises operations coverage in the amount of $2,000,000 and products and completed operations coverage in the amount of $2,000,000, and with respect to both, naming as additional insured New Freedom Borough and its boards, commissions and authorities (including the individual members thereof) and their elected and appointed officers, officials, employees, professional consultants and agents, for any and all claims arising out of or relating to the performance of this agreement;
(b) 
Owners and contractors protective liability insurance in the amount of $2,000,000, naming as additional insured New Freedom Borough and its boards, commissions and authorities (including the individual members thereof) and their elected and appointed officers, officials, employees, professional consultants and agents, to provide liability coverage for any and all claims arising out of or relating to the negligent acts or omissions of independent contractors or subcontractors which arise out of or relate to the performance of this agreement; and
(c) 
Commercial motor vehicle insurance coverage.
(2) 
The developer shall cause each insurance policy to include an endorsement which provides that the policy shall not be cancelable or subject to any amendment reducing the amount or breadth of coverage without at least 30 days' advance written notice to the Borough, via certified mail, at 49 East High Street, New Freedom, Pennsylvania 17349-9665.
(3) 
Each policy of insurance obtained pursuant to this section shall contain an endorsement making the same applicable solely to the application and the premises. A general policy applicable to other operations of the developer shall not be deemed to comply with these requirements.
(4) 
Each policy of insurance obtained pursuant to this section shall contain an endorsement which provides that with respect to the additional insured, the additional insurance provided shall be primary over all other applicable policies of insurance maintained by the additional insured.
(5) 
The developer shall furnish to the Borough a copy of each policy and all endorsements and proof of payment of the annual premium and thereafter, at least annually, provide a certificate of insurance evidencing continuing compliance with this section.
(6) 
The developer shall require all contractors installing, constructing, erecting or completing the required improvements before commencing any work in connection with the application to provide to the developer and the Borough certificates of insurance evidencing that each such contractor has in force and effect the insurance policies and coverage identified in Subsection B(1), above, and the endorsements identified in Subsection B(2) through (4) above.
C. 
Indemnification. The developer shall indemnify, defend and hold harmless New Freedom Borough and its boards, commissions and authorities (including the individual members thereof) and their elected and appointed officers, officials, employees, professional consultants and agents from demands, claims, suits, actions or judgments of and from all damages or expenses on account of personal injury, death or property damage arising out of or relating to the plan, or the conditions of approval of the plan, or any work performed by or on behalf of the developer in connection with the plan or conditions of approval of the plan.
D. 
Assignment of improvements agreement. The improvements agreement shall not be assigned without the prior written approval of the Borough and under terms and conditions acceptable to the Borough. No assignment shall relieve the assignor of its duties and obligations to the Borough under the improvements agreement.
A. 
Requirement of financial security. Upon application approval by the Borough Council and in lieu of completing the required improvements of a plan prior to approval, an improvements agreement shall be executed by the developer, providing for financial security to secure the completion of construction of the required improvements. Financial security shall be calculated and provided in accordance with the MPC, this chapter, conditions of application approval, and applicable Borough resolutions.
B. 
Forms of security. Unless otherwise permitted by the Borough, financial security shall be in the form that is consistent the MPC. Acceptable financial institutions shall include federal institutions authorized to conduct such business within the commonwealth and maintain an office in the York County area where claims against the security may be presented.
C. 
Amount of financial security. The financial security shall be in an amount equal to 110% of the cost of completion of the required improvements (which includes contingency allowances), estimated as of 90 days following the date scheduled for completion.
D. 
General construction schedule. The submission of a financial security estimate to the Borough shall be accompanied by a general construction schedule setting forth the estimated dates of commencement and completion for the project. For projects with an anticipated duration greater than one year, the developer's engineer shall adjust the financial security estimate to reflect an increase of 10% per year for every year thereafter.
E. 
Posting of additional security. If the financial security estimate fails to adequately address or excludes any necessary required improvements of the project because of oversight, because the need for the same was not anticipated by the engineers preparing or reviewing the plan and/or the cost estimates submitted pursuant thereto, or because of unanticipated field conditions, then the developer nevertheless shall be solely responsible for the installation, construction, erection and/or completion of the same and the cost thereof, and the Borough, upon discovery that certain required improvements are not included in the engineering estimate or that the estimate is not properly calculated or is understated, may require the developer to post additional security in an amount adequate to address the deficiency as a condition precedent to proceeding with the development.
F. 
Adjustment of security. If the required improvements are not completed by the completion date set forth in the original construction schedule, the Borough Engineer may annotate the improvements security release forms to reflect 110% of the cost for the completion of the remaining required improvements estimated as of 90 days following the original date scheduled for completion or a rescheduled date of completion, and the developer shall post the revised security.
G. 
Term of security. The developer shall maintain security for a minimum of 90 calendar days after the scheduled completion date of construction unless a different date is established in the improvements agreement.
H. 
Approved claim form. The developer shall provide to the Borough a sample claim form, acceptable to the financial institution, for use by the Borough in making claims against the security.
I. 
Irrevocable security. The financial security shall be irrevocable during the term thereof and shall be automatically renewable unless 30 days' written notice is provided to the Borough. The amount of security shall not be reduced except pursuant to written and signed authority by an authorized Borough official. Minutes of meetings of the Borough Council or other Borough authorities authorizing the reduction in financial security shall not constitute written authorization hereunder.
J. 
Assignment of security. The security shall not be assignable to other parties without prior written authority of the Borough. A general assignment of the security is not a release of liability from the assignor.
K. 
Reduction of security. The Borough shall reduce the amount of financial security in accordance with the requirement of the MPC and applicable Borough resolutions.
A. 
Warranty on structural integrity and function. The developer warrants the structural integrity and function of all improvements to be conveyed or offered for dedication to the Borough in accordance with the improvements agreement for an eighteen-month period following the date of acceptance of the conveyance or dedication. During the warranty period, the developer shall repair, restore, or replace all work determined by the Borough to be defective.
B. 
Required maintenance guarantee. A maintenance guarantee shall be provided by the developer to secure its obligation to repair, restore, or replace defective work that affects the structural integrity and function of all improvements that are offered for dedication or conveyance to the Borough. The maintenance guarantee shall be submitted as a condition of the Borough acceptance of the offer of dedication.
C. 
Duration of maintenance guarantee. The maintenance guarantee shall be in effect for a period of 18 months from the date of acceptance of dedication or sale to the Borough.
D. 
Amount of security. Security for the maintenance guarantee shall be 15% of the actual cost of installation of the improvements.
E. 
Type of security. Unless otherwise agreed to by the Borough, the maintenance guarantee shall be in the same form as that used to secure the construction of improvements.
F. 
Irrevocable maintenance guarantee. The maintenance guarantee shall be irrevocable and may not be withdrawn or reduced in amount without the consent of the Borough.