A completion guarantee or financial security in the form of
a bond, cash deposit, cashier's check or other negotiable securities
acceptable to the Borough shall provide for, and secure to the Borough,
the completion of any improvements which may be required on or before
the date fixed in the formal action of approval or accompanying agreement
for completion of the improvements. The guarantee or security shall
cover any and all stormwater management facilities, BMPs, erosion
and sedimentation controls and other required improvements (collectively,
"improvements") and 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 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 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 section. A proposed amount
of the guarantee or financial security shall be tendered by the developer,
as prepared by a professional engineer licensed as such in this commonwealth,
and shall be certified by said engineer to be a fair and reasonable
estimate of such cost of completion. The Borough may refuse to accept
such estimate for good cause shown. In the event that the parties
cannot agree upon a sum for the guarantee or financial security, the
parties shall mutually agree upon a third-party professional engineer
licensed in this commonwealth to determine a fair and reasonable estimate
for completion, which shall be binding upon the parties. The parties
shall equally split the cost of the third-party determination.
The completion guarantee or financial security shall be returned or released upon written certification by the Borough Engineer or a designated agent that improvements and facilities have been installed and completed in accordance with the approved plan and specifications, and upon receipt of the required record drawings and completion certificate as described in §
220-35 and receipt of the required structural integrity maintenance guarantee as described in §
220-44. Once the project is complete, the developer shall notify the Borough of the same. The Borough Engineer shall conduct an inspection of the improvements within 10 days. Within 30 days of receipt of notice of completion, the Borough Engineer shall prepare a report and deliver the same to the developer via certified mail, indicating in detail whether or not the improvements are approved or rejected. The Borough shall be reimbursed for all reasonable and customary costs associated with the inspection(s), which shall be invoiced to the developer in an itemized bill. If the developer disputes the costs of inspection within 100 days of receipt of the itemized bill, the parties shall jointly select a qualified arbitrator. Failure to object within 100 days of receipt constitutes a waiver or the developer's right to dispute the fees and arbitration. If an arbitrator is not selected within 20 days of the request for an arbitrator, the parties may petition the Court of Common Pleas to select the third-party arbitrator. The cost of the arbitrator shall be shared equally by the parties.
If improvements are not installed in accordance with the approved
final plans, Borough Council may enforce any corporate bond or any
security by appropriate legal and equitable remedies. If 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, Borough Council may at its option install
part of such improvements in all or part of the development and may
institute appropriate legal or equitable action to recover the monies
necessary to complete the remainder of the improvements. All 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 costs associated with the installation of the improvements
covered by such security and not for any other Borough purpose.
Prior to acceptance of any improvements or facilities, the applicant
shall provide financial security to secure the structural integrity
and functioning of the improvements. The security shall:
A. Be in the form of a bond, cash, cashier's check or other negotiable
securities acceptable to the Borough.
B. Be for a term of 18 months.
C. Be in an amount equal to 15% of the actual cost of the improvements
and facilities so dedicated.
The Borough shall be reimbursed for all internal and external
costs incurred in relation to the review, consideration and inspection
of permit applications and the subject improvements made pursuant
thereto; said fees and costs shall be charged to an applicant. The
schedule of fees shall be as described in Appendix E of this chapter. Borough Council may amend and revise, by resolution, from
time to time, the schedule of fees to cover the cost of administrative
and clerical processing, attendance at meetings including presubmitted
and preconstruction meetings, plan and calculation reviews, O&M
plan and agreement reviews, site and construction inspections, post-construction
inspections and all activities necessary to administer, monitor and
enforce the provisions of this chapter. All external fees shall be
billed to the applicant at a rate no more than the actual costs charged
by professional consultant. In the event that the parties cannot agree
to the amount of fees, the parties shall select a neutral third-party
arbitrator in the same field as the professional consultant, who shall
find the fee reasonable or unreasonable. The arbitrator shall be selected
by the parties within 30 days of the date the parties reached an impasse
on the costs, and the arbitrator shall schedule a hearing on the fee
dispute, within 30 days of their selection. The formal rules of evidence
shall not apply at said hearing. If the parties cannot mutually select
an arbitrator, they shall petition the Court of Common Pleas to select
the arbitrator. The arbitrator shall issue a written determination
within 30 days of the date of the hearing. If the fees are determined
to be reasonable, they shall be the fee charged to the applicant.
If the fees are found to be unreasonable, the arbiter shall set the
fee. The parties shall equally split the cost of the arbiter. The
decision of the arbiter shall be final and binding upon the parties.