Township of Whitehall, PA
Lehigh County
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A. 
Conveyance of right-of-way. All existing or new rights-of-way within the boundaries of a subdivision or land development shall be conveyed to the Township by fee simple deed of special warranty, free of all liens and encumbrances with reservation of rights that all property owners adjacent thereto are responsible to maintain all rights-of-way between the property line and the curb.
B. 
Improvements. Physical improvements to the proposed subdivision or land development tract shall be provided, constructed and installed as shown on the final plan and in accordance with the requirements of this chapter.
C. 
Improvements agreements. As a condition for the approval of the final plan, the developer shall execute an agreement with the Board of Commissioners as to the installation of all improvements shown on the plan and required by this chapter. Before the final plan may be endorsed by the Mayor, the improvements agreement and maintenance agreement shall be executed by the developer and the Mayor and recorded with the Lehigh County recorder of deeds office. The improvements and maintenance agreement shall be in such form as is acceptable to the Township Solicitor.
[Amended 6-8-2009 by Ord. No. 2776, approved 11-3-2009]
D. 
Construction of improvements. All improvements installed by the developer shall be constructed in accordance with all design specifications set forth herein or as may be otherwise approved by the Board of Commissioners subject to the recommendations of the Township Engineer.
E. 
Supervision of construction of improvements by Township Engineer. The supervision of the installation of the improvements as required by this chapter shall be the responsibility of the Township Engineer, except that the installation of those improvements which are to be dedicated to governmental entities other than the Township shall be supervised by engineers representing those entities.
A. 
General. No final plan of a major subdivision or land development shall be approved by the Board of Commissioners until the developer has constructed and completed all required improvements as required by this chapter and that are shown on the final plan to be recorded or the supporting documents submitted with the application for final plan approval. In lieu of the completion of any of these required improvements, the developer shall submit to the Township a subdivision improvements agreement, a maintenance agreement, and construction security, all in form acceptable to the Township Solicitor. The developer shall fully execute these agreements before submitting them to the Township. No final plan shall be finally approved and recorded until all agreements required hereby are fully executed by all parties and, escrows and financial security have been posted.
B. 
Improvements agreement. The subdivision improvements agreement, or a contract approved by the Board of Commissioners, shall bind the developer to construct the required improvements as required by this chapter and that are shown on the plan to be recorded or on the supporting documents submitted with the application for final plan approval. This agreement includes a security agreement which shall provide for, and secure to the public, the completion of all required improvements. This agreement shall indemnify the Township and hold the Township harmless from any and all liability including, but not limited to, any and all aspects of stormwater management, design and implementations thereof.
C. 
Maintenance agreement. The improvement maintenance agreement shall provide that the developer agree to maintain the required improvements for a period of 18 months, and that the developer provide suitable security to guarantee that the improvements will be maintained during this period.
(1) 
The time period for maintenance shall commence on the day the Township Engineer and the Mayor give the developer final approval on all of the required improvements identified in the subdivision improvements agreement.
[Amended 6-8-2009 by Ord. No. 2776, approved 11-3-2009]
(2) 
Security shall be in an amount equal to 15% of the total amount of the actual cost of the required improvements, as defined in the subdivision improvements agreement. The form of security shall be subject to the approval of the Township Solicitor and Board of Commissioners.
(3) 
The Township shall release the maintenance security pursuant to § 22-43.
D. 
Improvements or performance guarantee.
(1) 
No plan will be finally approved unless the improvements required hereby or otherwise required by the MPC shall have been installed or appropriate financial security pursuant to § 509 of the MPC, shall have been posted with the Township. Such security shall be in a form acceptable to the Township Solicitor.
(2) 
In the case where development is projected over a period of years, the governing body may authorize submission of final plans by sections or stages of development subject to the limitations imposed by the MPC, and also subject to such requirements or guarantees as to the completion of improvements in future sections or stages of the development as the governing body finds essential.
E. 
Phased development. If development is proposed to occur over a period of years, the developer shall phase or stage portions of the development plan and coordinate with these said phases or stage the posting of appropriate financial security and the payment of portions of the required recreation and traffic impact fees. In regard thereto, the developer shall be required to comply with the following minimum standards established by the Board of Commissioners, which shall include, but may not be limited to:
(1) 
Execute a phased development agreement, improvements and maintenance agreements for each phase and prior to commencing work, post necessary financial security.
(2) 
Indicate a completion schedule for the development as part of preliminary plan. If this schedule involves an extension to the maximum five-year plan life as established in the MPC the Board will determine what time period is acceptable.
(3) 
Record each section of phased plan as final approval is granted by the Board of Commissioners. Prior to commencing construction of any improvements in each phase, improvements in the current (active) phase must be substantially complete as determined by the Township Engineer.
(4) 
The maintenance period for each phase shall not commence until so indicated by the Township Engineer.
(5) 
Any recreation areas or stormwater management facilities shall be part of the first phase.
A. 
General. Prior to endorsing the final plan, the Township shall require that the developer post adequate, acceptable financial security (collectively referred to herein as "financial security") with respect to the following:
(1) 
Cost of those improvements depicted on the final plan, which security may be in the form of cash, letter of credit or bond.
(2) 
Legal and engineering costs, which security shall be no greater than 15% of the costs of improvements secured (as determined by the Township Engineer) and which shall be in the form of cash. At no time shall the value of the escrow be less than 25% of the value of the escrow as initially established. In the event that the legal/engineering escrow is reduced to less than 25% of the amount initially established, the developer shall replenish the account in cash to 25%.
(3) 
Project completion costs, which costs shall include but shall not be limited to costs for administration, as built plans and surveys preparation, advertising, and filing of ordinances, deeds of dedication, deed of confirmation, which security shall be no greater than 2% of the costs of improvements secured and which security may be in the form of cash, letter of credit or bond.
(4) 
Maintenance security, which shall be in such amount as set forth in § 22-40C hereof.
B. 
Use of financial security. The financial security referenced in Subsection A hereinabove shall be used for the purposes for which same was posted; provide, however, that any financial security may be used as and when necessary to abate any nuisance or violation which exists in, on, at or emanates from the land being developed. In the event that any financial security is used as aforesaid, the developer shall, within five days of written request from the Township, replenish such security to the amount that existed immediately prior to the Township abating the nuisance or violation.
C. 
Form of financial security. The financial security required hereby shall be in such amount and form as is acceptable to the Township Solicitor.
D. 
Financial security. In the event that the developer has failed, refused or neglected to replenish the financial security (as and when required by Subsection A or Subsection B hereof) complete the improvements required by the final plan, or extended the financial security for an additional term of one year (or such lesser amount of time as may be approved by the Township Solicitor) within 10 days of the expiration of the financial security, the Township may
(1) 
Realize upon the same.
(2) 
Issue a stop work order with respect to all construction related to the improvements.
(3) 
Refuse to issue permits.
(4) 
Refuse to perform any and all inspections related to the land development. All costs related to the Township realizing upon the financial security shall be charged to the developer and taken from the financial security upon receipt of the same.[1]
[1]
Editor's Note: Former Subsection E, Remedies to effect completion of improvements, which immediately followed this subsection, was repealed 9-8-2008 by Ord. No. 2746. See § 22-41.1 for current provisions.
[Added 9-8-2008 by Ord. No. 2746]
A. 
Remedies to effect completion of improvements. In the event that any improvements which may be required have not been installed as provided in the Subdivision and Land Development Ordinance or in accord with the approved final plat, Whitehall Township is granted the power, pursuant to the Pennsylvania Municipalities Planning Code, to enforce any corporate bond, or other 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, Whitehall Township 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 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, and not for any other municipal purpose.
(1) 
Whitehall Township may, in its sole discretion, extend the completion date or allow additional time for the owner and/or developer or correct any event of default. If necessary in such case, the owner and/or developer shall obtain an extension or renewal of the construction security instrument so that the instrument is extended for a period of at least 60 days from the date of the deadline for the correction of the event of default.
(2) 
The Township, in effecting the completion of improvements under default, shall have the right to complete the improvements itself or contract with a third party for completion, and the developer, in the improvements agreement, shall grant to the Township, its successors, assigns agents contractors and employees, a nonexclusive right and easement to enter the property to construct, maintain, and repair such improvements. Alternatively, the Township may assign the proceeds of the construction security instrument to a subsequent developer or lender who has acquired the development by purchase, foreclosure or otherwise who will then have the same rights of completion as the Township, provided such assignment shall occur if and only if the subsequent developer or lender agrees in writing to complete the unfinished improvements.
(3) 
Until the improvements that are under default are completed, and accepted by the Township, the Township may suspend final plan approval, and the developer will not be permitted to sell, transfer, or otherwise convey lots or homes within the property without the express written approval of the Township.
B. 
Events of default. The following shall be considered events of default:
(1) 
The improvements as identified on the approved land development plan and as further outlined in the construction cost estimate are not completed by the owner/developer to the satisfaction of the Township Engineer on or prior to the completion date as set forth and agreed upon in the subdivision improvements and maintenance agreements.
(2) 
The improvements are not constructed in accordance with the approved plans and/or specifications.
(3) 
The owner and/or developer abandons or vacates construction of improvements for a period of more than 90 days during the term of the subdivision improvements agreement, unless said abandonment is caused by fires, floods, storms, accidents or acts of God, and Whitehall Township reasonably believes that the remaining improvements cannot be completed by the completion date.
(4) 
The owner and/or developer fails to correct to the satisfaction of the Township Engineer any failure, fault, or deficiency in the improvements within 60 days or other specific time period established by same after written notice from the Engineer to the owner and/or developer to correct such failure, fault or deficiency.
(5) 
The owner and/or developer fails to maintain adequate construction or maintenance security.
(6) 
The owner's and/or developer's insolvency, the appointment of a receiver for the owner and/or developer or the filing of a voluntary or involuntary petition in bankruptcy respecting the owner and/or developer.
(7) 
Foreclosure of any lien against the property or a portion of the property or assignment or conveyance of the property in lieu of foreclosure.
(8) 
Failure of the owner and/or developer or their lender to extend or renew the construction security as required pursuant to these regulations as well as the Pennsylvania Municipalities Planning Code.
A. 
General. All improvements and utilities will be inspected by the Township Engineer to ensure satisfactory completion and maintenance.
B. 
Costs. The cost of all legal service for the negotiation, preparation, modification or review of any legal agreements relating to a subdivision or land development whether finally approved or not and all engineering costs of engineer inspections of improvements shall be paid to the Township by the developer.
C. 
Paving. In no case shall any paving work be done without permission from the Township Engineer. At least three working days notice shall be given to the Township Engineer prior to any such construction, so that the Township Engineer may be present at the time the work is to be done.
D. 
Notification milestones. The Township Engineer shall be notified prior to and after each of the following phases of the work has been commenced and completed, so that the work may be inspected:
(1) 
Grading of rights-of-way.
(2) 
Setting forms of crosswalks, sidewalks and curbs and placement and finish of concrete.
(3) 
Preparation of road subgrade and cross slopes including, but not limited to, rolling and compaction.
(4) 
Setting curb forms and/or stringlines and placement and finish of concrete.
(5) 
Road paving and sealing.
(6) 
Installation of drainage pipe and other drainage structures and before backfilling.
(7) 
Installation, repair, stabilization and seeding, where applicable, of erosion and sedimentation controls.
(8) 
Installation of underground conduits for electric, streetlights, telephone and television cable lines and before backfilling.
(9) 
Installation of water and sanitary sewer submains, laterals and appurtenances before backfilling and wells and pumping storage facilities before activating same.
(10) 
Back filling of all utility trenches in the right-of-way, both existing and proposed.
(11) 
Installation of street trees.
E. 
Final inspection. When all the improvements and utilities depicted on the final plan and supporting documents have been installed, a final inspection shall be made by the Township Engineer and Mayor to determine whether the work is satisfactory and in substantial compliance with the approved final plans and specifications. The general condition of the site shall also be considered.
[Amended 6-8-2009 by Ord. No. 2776, approved 11-3-2009]
(1) 
When the developer has completed all of the necessary and appropriate improvements depicted on the final plan and supporting documents, the developer shall notify the Board of Commissioners, in writing, by certified or registered mail, of the completion of the same and shall send a copy thereof to the Township Engineer.
(2) 
The Board of Commissioners shall within 10 days after receipt of such notice direct and authorize the Township Engineers to inspect all of the aforesaid improvements.
(3) 
The Township Engineer shall thereupon file a report, in writing, with the Board of Commissioners, and shall promptly mail a copy of the same to the Developer by certified, or registered mail.
(4) 
The Township Engineer's report shall be made and mailed within 30 days after receipt by the Township Engineer of the aforesaid authorization from the Board of Commissioners; said report shall be detailed and shall indicate approval or rejection of said improvements either in whole or in part, and if said improvements or any portion thereof shall not be approved or shall be rejected by the Township Engineer, said report shall contain a statement of reasons for such nonapproval or rejection.
(5) 
The Board of Commissioners shall notify the developer, in writing, by certified or registered mail within 15 days of receipt of the Engineer's report, of The Board's action with regard thereto.
(6) 
If the Board of Commissioners or Township Engineer fails to comply with the time limitations set forth herein, all improvements will be deemed to have been approved and the developer shall be released from all liability pursuant to the developer's financial security posted with respect to such improvements.
(7) 
If any portion of the said improvements shall not be improved or shall be rejected by the Board of Commissioners, the developer shall proceed to complete the same, and upon completion, the same procedure of notification, as outlined herein, shall be followed.
F. 
Maintenance inspection. A maintenance inspection of all the improvements and utilities will be made by the Township Engineer and Mayor to determine whether the improvements have been constructed to acceptable standards of workmanship, with acceptable materials and maintained to withstand reasonable materials and maintained to withstand reasonable use.
[Amended 6-8-2009 by Ord. No. 2776, approved 11-3-2009]
(1) 
The maintenance inspection shall take place no sooner than 15 months after the day the Township Engineer and the Mayor give the final approval on all required improvements.
(2) 
Within 10 days of maintenance inspection, the Township Engineer shall report, in writing, the Township Engineer's findings to the Board of Commissioners and to the developer granting approval or disapproval, each with reason for the stated action.
(3) 
The developer shall be notified by certified letter, return receipt requested, of all required improvements which fail to pass the maintenance inspection of the Township Engineer. All such improvements shall be repaired by the developer to specifications acceptable to the Township Engineer within 60 days of such notification by the Township Engineer.
(a) 
All such repairs shall be performed and inspected in accordance with the within regulations.
(b) 
Thirty days prior to the expiration of the maintenance period, the Township Engineer shall perform a final inspection of all improvements. Any deficiencies shall be communicated, in writing, to the developer for his immediate action. If circumstances are such that such repairs cannot be made before the end of the maintenance period, the maintenance period shall be extended by the Township Engineer (provided that such maintenance security remains in effect), or, in the alternative, the Township may realize on the maintenance security.
A. 
Release of improvements security. The Township shall release the financial security related to the improvements provided that:
(1) 
The installation of all required improvements has occurred prior to the expiration of the financial security and passed the inspection of the Township Engineer.
(2) 
Developer has paid the Township for all costs which are the developer's obligation under this or other applicable ordinances.
(3) 
Developer has supplied maintenance security.
The Township shall release the maintenance security provided that:
A. 
The condition of the required improvements listed in the subdivision improvements agreement has been approved by the Township Engineer.
B. 
All improvements, easements and rights-of-ways which are to be dedicated to the Township as shown on the final plan shall have been dedicated to the Township by the delivery of a special warranty deed conveying the same to the Township in fee simple, plus developer's attorney's opinion of record title (or title insurance) that the land conveyed is good and marketable and free of all liens and encumbrances, or in such other manner recommended by the Township Solicitor and approved by the Board of Commissioners.