Article 6
Performance Guarantee

§11A-601 Developer’s Improvement Guarantee Agreement.

1.    As a condition prerequisite for SWM site plan approval, the developer shall execute a developer’s improvement guarantee agreement prepared by the Borough’s Solicitor and the developer shall deliver to the Borough financial security, in a form and manner deemed acceptable to Borough Council, to guarantee the construction and installation of the required improvements.

2.    The developer’s improvement guarantee agreement shall, inter alia, include provisions whereby the developer agrees:

A.    To construct or cause to be constructed, at developer’s own expense, all stormwater management facilities shown on the approved SWM site plan and in accordance with the requirements of this Chapter.

B.    To maintain, at developer’s own cost, the said stormwater management facilities shown on the SWM site plan until the same are accepted by resolution of Borough Council.

C.    To pay all of the Borough’s reasonable administrative, inspection, engineering and legal fees related to the review and processing of the SWM site plan and the creation, recording, and enforcement of the developer’s improvement guarantee agreement.

D.    To obtain any easements or releases which may be necessary for the construction of any improvement which traverses lands of persons other than the developer. Any such easement or release shall inure to the benefit of the Borough, as well as to the developer.

E.    To exonerate, indemnify and hold harmless the Borough, its officers, engineers and solicitors, its appointees and employees, and its other agents, independent contractors, and assigns, from liability arising from the developer’s construction or development of the project.

F.    To prevent soil erosion, sedimentation, and water damage to the subject and adjacent properties.

G.    To make provisions and be responsible, at developer’s own cost and expense, for removing all mud, litter and/or debris on roads in the Borough resulting from any vehicles and equipment leaving the development site and entering onto streets within the Borough.

H.    To be responsible for and repair, at the developer’s own cost and expense, any damage done to any existing streets within the Borough and the Borough’s and/or Authority’s water and sewer systems as a result of, or in connection with, the performance of any work related to the SWM site plan.

I.    To maintain general liability, property damage and any other required insurance in forms and amounts deemed acceptable to the Borough, naming the Borough, its agents, officials, employees, and authorized representatives, as an additional insured.

J.    To dedicate to the Borough by deed, in a form and manner deemed acceptable to the Borough Solicitor, any storm sewer mains and lines, storm sewer drainage facilities, stormwater management areas and facilities, and open space areas or other lands, intended for dedication to, and acceptance by, the Borough, and to provide to the Borough as-built plans certified by the developer’s engineer for any constructed storm sewer mains and lines, storm sewer drainage facilities, stormwater management areas and facilities, and open space areas or other lands to be conveyed or transferred to the Borough.

(Ord. 2022-3, 9/12/2022, §1)

§11A-602 Performance Guarantee.

1.    A performance guarantee for the required stormwater management improvements shall be supplied by the developer in conjunction with the SWM site plan approval unless otherwise required for subdivision and land development plan approval. The applicant shall provide the performance guarantee to the Borough to ensure the timely installation and proper construction of all stormwater management facilities and/or stormwater BMPs as required by the approved SWM site plan and this Chapter.

2.    Type of Guarantee. Without limitation as to other types of financial security which the Borough may approve, which approval shall not be unreasonably withheld, Federal or Commonwealth chartered lending institution irrevocable letters of credit and restrictive escrow accounts shall be deemed acceptable financial security for the purposes of this Section. Such financial security shall be posted with a Federal or Commonwealth chartered lending institution chosen by the party posting the financial security, provided said lending institution is authorized to conduct such business within the Commonwealth. Such financial security shall provide for, and secure to the public, 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.

3.    Amount of Guarantee. The amount of financial security to be posted for the completion of the required improvements shall be equal to 110 percent of the cost of completion estimated as of 90 days following the date scheduled for completion by the developer.

A.    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.

B.    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 percent of the estimated cost of the remaining improvements. Any additional security shall be posted by the developer in accordance with this subsection.

C.    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 or developer and prepared by a licensed professional as such in this Commonwealth and certified by such licensed professional to be a fair and reasonable estimate of such cost. The Borough Engineer shall review and approve the cost estimate or, for good cause, refuse to accept the estimate.

D.    If the party posting the financial security requires more than 1 year from the date of posting of the financial security to complete the required improvements, the amount of financial security may be increased to an amount not exceeding 110 percent of the cost of completing the required improvements as reestablished on or about the expiration of the preceding 1-year period by using the above cost estimate preparation procedure. A developer who fails to complete the improvements within the allotted time specified in the financial guarantee shall, at least 60 days in advance of the guarantee expiration date, renew or resubmit a financial guarantee. Failure to keep a financial guarantee in effect until the completion and approval of all improvements shall be a violation of this Chapter.

4.    Release from Guarantee. As the work of installing the required improvements proceeds, the party posting the financial security may request the release, from time to time, of such portions of the financial security for work upon the improvements that has been completed. Any such requests shall be made in writing to the Borough, and within 45 days of receipt of such request the Borough Engineer shall certify, in writing, whether or not such portion of the work upon the improvements has been completed in accordance with the approved plan.

A.    When the improvements are certified to be in accordance with the approved plan, the Borough shall authorize release by the lending institution of an amount as estimated by the Borough Engineer fairly representing the value of the improvements completed.

B.    If the Borough fails to act within said 45-day period, the release of funds shall be deemed to have been approved as requested.

C.    The Borough may, prior to final release at the time of completion and certification by its engineer, require retention of 110 percent of the estimated cost of the remaining improvements.

D.    The applicant shall assume the necessary expense incurred for the inspection of improvements. Such inspection costs shall be based upon a schedule, established by resolution, and amended from time to time as deemed necessary.

5.    Maintenance Guarantee. Where the Borough accepts dedication of all or some of the required improvements following completion, the Borough 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 and specifications depicted on the final plat for a term not to exceed 18 months from the date of acceptance of dedication. Said financial security shall be of the same type as otherwise required in this Section with regard to installation of such improvements. The amount of financial security shall not exceed 15 percent of the actual cost of installation of said improvements. The amounts of all improvements included in the maintenance guarantee may be reduced to said 15 percent and retained within the performance guarantee until notification from the Borough of maintenance guarantee establishment is received by the Borough.

6.    Remedies to Effect Completion of Improvements. In the event that any required improvements have not been installed as provided in this Chapter or in accordance with the approved plan, the Borough is hereby granted the power to enforce any financial security by appropriate legal and equitable remedies. If proceeds of such financial security are insufficient to pay the cost of installing or making repairs or corrections to all the improvements covered by said security, 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 the proceeds, whether resulting from the financial 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, and not for any other Borough purpose. Failure to properly install the required improvements shall also constitute a violation of this Chapter, punishable as provided in Article 9 of this Chapter.

7.    At the completion of the project, and as a prerequisite for the final release of the improvements guarantee, the owner/developer or his representatives shall:

A.    Provide a certificate of final completion letter from an engineer, landscape architect, surveyor, or other qualified professional verifying that all permanent facilities have been constructed according to the plans and specifications and approved revisions thereto.

B.    Provide a set of as-built (record) drawings, if applicable.

8.    After receipt of the certificate of completion letter and as-built plan by Cornwall Borough, a final inspection shall be conducted by the Borough Engineer or designated representative to certify compliance with this Chapter.

(Ord. 2022-3, 9/12/2022, §1)

§11A-603 Indemnification and Insurance.

The written developer’s improvement guarantee agreement entered into by the developer with the Borough shall include therein an indemnification agreement whereby the developer agrees to indemnify and hold the Borough harmless from any and all liability, including, but not limited to, any and all aspects of construction, stormwater management, site grading, utility line trenching and construction, and street excavation. The developer’s improvement guarantee agreement entered into by the developer with the Borough shall also require the developer to provide to the Borough insurance and insurance coverages in form and amounts deemed acceptable to Borough Council.

(Ord. 2022-3, 9/12/2022, §1)