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.
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.
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.
[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.
