Township of South Whitehall, PA Article V Required Improvements, Agreements and Inspections for All Subdivisions

§ 312-26 Required improvements.

A. The following improvements shall be indicated on all preliminary and final plans and shall be constructed by the developer in conformance with the final plans as approved, the applicable specifications and regulations of the Township, and/or applicable state agency, such as PennDOT and the Pennsylvania Department of Environmental Protection, and offered for dedication to the Township or Township Authority,[1] as applicable, without cost to the Township or Township Authority[2] where required by this chapter or as stipulated in any agreement applicable to the subdivision and in a manner approved by the Board of Commissioners, consistent with sound construction methods as approved by the Township Engineer.

(1) Grading.

(a) Road or street rights-of-way.

(b) Individual lots.

(c) Grading of slopes from lot grades to edge of street rights-of-way.

(2) Street or road surfacing.

(3) Curbs and gutters.

(4) Sidewalks, trails and crosswalks.

(5) Underground conduits for electric, telephone, streetlights and television cable lines, if available, of a type approved by the Township Engineer.

(6) Storm sewers and drainage facilities.

(7) Sanitary sewer system, including but not limited to sanitary sewer laterals, submains, mains and package treatment plant, when required by the Board of Commissioners in accordance with plans approved by the Township Engineer.

(8) Water supply and distribution system, including but not limited to wells, pumping equipment, water laterals and submains when required by the Township Authority[3] or the Board of Commissioners in accordance with plans approved by the Township Engineer.

[3] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

(9) Street name signs at all street intersections and all other traffic control signs.

(10) Street speed limit and stop signs established through a traffic study that shall be performed by the developer before dedication of rights-of-way.

(11) Permanent monuments.

(12) Fire hydrants.

(13) Trees and landscaping.

(14) Streetlighting in accordance with Township and Pennsylvania Power and Light Company standards.

(15) Permanent or temporary stormwater retention basins when deemed necessary by the Township Board of Commissioners pursuant to § 312-39. Design of said basins shall be reviewed and approved by the Township Engineer and by the Department of Environmental Protection (if applicable), and an indemnity agreement indemnifying the Township, its staff, employees, etc., and approved by the Township Solicitor, shall be required.

(16) Other facilities as may be required by the Board of Commissioners pursuant to these regulations.

[1] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

[2] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

B. No occupancy permits for any building or buildings to be erected shall be issued by the Township Building Code Official until the Township Engineer provides written documentation that:

(1) The roads, streets, or lanes providing access to and from existing public roads to such building or buildings have been improved to a mud-free, permanently passable condition; and

(2) That all other improvements depicted on the approved final plan, either upon the lot or lots or beyond the lot or lots in question and necessary for the reasonable use of or occupancy of any such building or buildings, have been completed.

§ 312-27 Agreement or contract and performance security.

A. No final plan shall be approved by the Township Board of Commissioners until the developer has constructed and completed all required improvements as defined in § 312-26 of these regulations and that are shown on the plan to be recorded or on 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 written agreement or agreements in the manner and form set forth by the Township, to guarantee the construction, installation and maintenance of all improvements required by these regulations at the developer's sole cost and expense. 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 are fully executed by all parties and financial security has been provided to the Township. The agreements shall specify the following, where applicable:

(1) That the developer agrees that it will lay out, construct and maintain, at its expense, all roads, streets, lanes or alleys, together with all other improvements, including grading, paving, curbs, gutters, sidewalks, trails, streetlights, fire hydrants, water mains, street signs, shade trees, stormwater management facilities, sanitary sewers, landscaping, traffic control devices, open space and recreation areas, and erosion and sediment control measures in conformance with the final plan as approved, the applicable specifications and regulations of the Township, PennDOT and PADEP, and any other applicable regulations, and that it shall complete these improvements within the time or times specified by the Board of Commissioners.

(2) That the developer guarantees completion of all public improvements by posting security in the form permitted by the MPC and in an amount established pursuant to § 312-27C herein.

(3) That the developer agrees to tender a deed or deeds of dedication to the Township and/or Township Authority,[1] as applicable, for such street easements and for easements for water mains, sanitary and storm sewers (including pipes, detention basins and swales), sidewalks, trails, manholes, inlets, pumping stations, and other appurtenances as shall be constructed as public improvements provided that neither the Township nor Authority[2] shall accept dedication of such improvements until the Township Engineer provides written documentation that such improvements have been satisfactorily completed and satisfactorily maintained by the developer for the duration of the maintenance period required by the MPC. All streets, easements and other public improvements offered for dedication shall be accompanied by a metes and bounds description and plot plan prepared by the developer. The developer shall also provide a deed or deeds of dedication to the Township to permit access to privately owned and maintained improvements to permit the Township to undertake maintenance of such improvements (without any obligation on behalf of the Township to do so) should the developer or responsible party fail to adequately maintain such improvements. All deed(s) of dedication shall be provided in a form prepared by the Township or Authority. Solicitor, as applicable, and shall be submitted to the Township or Authority accompanied by i) an opinion of record title, in form acceptable to the Township or Authority Solicitor, as applicable, prepared by the applicant's counsel (who must not be affiliated with the applicant, must be licensed to practice law in Pennsylvania and must maintain an office in Pennsylvania) or ii) a title insurance policy issued by a reputable title insurance company licensed to do business in Pennsylvania in such amount as is acceptable to the Township or Authority, upon advice of the Township or Authority Solicitor, as applicable, and in a form that is acceptable to the Township or Authority, indicating that the easement rights are free and clear of all liens and of all other encumbrances of any kind that could adversely affect the Township or Authority's ownership or use of such easements.[3] The Township or Authority, as applicable, shall not accept any deed of dedication until the opinion of record title or title insurance policy required by this section are provided and accepted by the Township or Authority Solicitor.[4]

[1] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

[2] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

[3] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

[4] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

(4) That the developer agrees to establish a covenant that runs with the land addressing the perpetual maintenance responsibilities of stormwater management BMPs per PA DEP Title 25, Chapter 102, Section 102.8(m),[5] as amended from time to time, and providing for access easements to allow the Township to inspect and monitor the maintenance of stormwater management BMPs. The covenant shall be in a form prepared by the Township Solicitor. The Board of Commissioners shall not accept the covenant until the opinion of record title required by § 312-27A(3) is provided and accepted by the Township.

[5] Editor's Note: See 25 Pa. Code § 102.8(m).

(5) That the developer agrees to correct, remedy, repair, refurbish, reconstruct, reinstall, maintain, replace and perform such maintenance to the improvements as may be necessary, in the sole and absolute discretion of the Township, based on the condition of the improvements which may arise or exist during the maintenance period described in § 312-27F. The developer shall post with the Township security in the amount described in § 312-27F for the entire maintenance period prior to the release of any remaining balance of the security posted to guarantee the installation/completion of the improvements.

(6) That the developer shall exonerate, indemnify, defend (through legal counsel of the Township's choice) and hold harmless the Township and the Township representatives of and from each and every claim arising out of, resulting from, caused by or relating to:

(a) Any failure of the developer to perform or observe any term, provision, covenant or condition of the agreements, the plan and/or the resolution of approval for the project;

(b) Any material inaccuracy and/or any misrepresentation or breach of warranty (express or implied) made by the developer or its agents;

(c) Any injury (including but not limited to death) or damage to any person, entity or property from any cause whatsoever arising out of, resulting from, caused by or related to the design, installation, construction, maintenance, quality of or failure of the improvements and/or any work performed at the property or land of others and any conditions created by the aforesaid design, installation, construction, etc., of the improvements; or

(d) Any discharge of surface water onto land of others from or through the property and other areas encompassed by the plan, the resolution approving the project and/or the agreements.

(7) That the developer, before any permit is issued to the developer and before the developer or any of its agents enters upon the property to conduct any earthmoving activities or construction activities or perform any other site improvement activities, the developer shall carry insurance coverage in amounts and with companies acceptable to the Township Solicitor, consistent with the Township's policy concerning insurance coverage as may be adopted from time to time by resolution of the Board of Commissioners. Such insurance shall include, at a minimum, commercial general liability insurance, workers' compensation and employers' liability insurance and commercial motor vehicle insurance coverage.

B. The form and type of financial security shall be approved by the Township Solicitor and shall be consistent with the Township's policy concerning financial security as may be adopted from time to time by resolution of the Board of Commissioners. Such financial security shall be posted with a bonding company or federal or commonwealth chartered lending institution chosen by the developer posting the financial security, provided that the bonding company or lending institution is authorized to conduct business within the Commonwealth of Pennsylvania.

C. The amount of financial security to be posted for completion of the required improvements shall be equal to 110% of the cost of completion of the required improvements based upon the Township's cost to construct and install the improvements (including prevailing wage rates), estimated as of 90 days following the date scheduled for completion by the developer, plus an additional 10% for contingencies above the estimated hard costs, the estimated cost to prepare the as-built plans required by these regulations and any fees which are to be paid to the Township following recording of the plan, such as recreation fees, capital improvements fees, highway capital improvements fees, etc., which are not paid prior to recording of the plan. The cost estimate also includes a separate line item for the estimated inspection fees of the Township Engineer inspecting the improvements. The estimated cost of completion of the required improvements shall be submitted by the developer for review and approval by the Township Engineer and prepared by a professional engineer licensed as such in the Commonwealth of Pennsylvania and documented to the satisfaction of the Township Engineer by such engineer to be a fair and reasonable estimate of such cost. Upon the recommendation of the Township Engineer based on his/her review, the Township may refuse to accept such estimate. If the developer and the Township are unable to agree upon an estimate, the procedures set forth in the Section 509(g) of the MPC[6] shall be followed. No final plan shall be approved until the estimated scheduled date for subdivision or land development construction completion is explicitly set forth on its cover sheet.

[6] Editor's Note: See 53 P.S. § 10509(g).

D. If the developer requires more than one year from the date of posting of the financial security to complete the required improvements, the Township may require that the amount of financial security be increased by an additional 10% for each one-year period beyond the first anniversary date from posting of financial security or to an amount not exceeding 110% of the cost of completing the required improvements, based upon the Township's cost to construct and install the improvements (including prevailing wage rates), as re-established on or about the expiration of the preceding one-year period by using the above procedure for estimating the cost of completion of the required improvements.

E. Phasing of development. In the case where development is projected over a period of years, the final plan may be prepared and submitted for an initial stage of development or for subsequent stages of development, provided that such stages of development had been approved by the Township Board of Commissioners as part of the preliminary plan. Final plan approval of each stage or section is subject to all provisions of § 312-27. The Township may require guarantees for specific improvements in future stages or sections if the Township finds their completion essential for the protection of any finally approved stage of the development.

F. Where the Township accepts dedication of all or some of the required improvements following satisfactory completion on the basis of review and recommendation by the Township Engineer, the Township may require the posting of additional financial security to secure the structural integrity of the improvements as well as the functioning of said improvements in accordance with the design and specifications in the final plan for a term not to exceed 18 months from the date of acceptance of dedication, with the exception of shade/street trees for which the financial security shall not exceed 24 months. The amount of this additional financial security shall be equal to 15% of the actual cost of installation of the improvements. The eighteen-month maintenance period (24 months for shade/street trees) shall not begin until the final inspection, approval and, where applicable, acceptance by the Township of all improvements required by these regulations and other applicable Township ordinances, rules, regulations, resolutions, etc., within the subdivision and/or land development.

G. Where adequate financial security has been provided as set forth above, the Township shall not unreasonably withhold the issuance of building, grading or other permits relating to the construction of the improvements, including buildings, upon the lots or land as depicted on the final plan. Moreover, where adequate financial security has been provided and the developer complies with § 312-26B, occupancy permits for any building or buildings to be erected shall not be withheld following the Township Engineer's certification provided in accordance with § 312-28C herein.

H. If the developer desires to begin construction of the improvements prior to recording the final plan, signing the necessary agreement(s) and posting the required security, the developer shall sign a pre-security construction agreement in the form prepared by the Township Solicitor which provides, among other things, for the developer's responsibility for all observation costs incurred by the Township while observing the developer's construction of the improvements, insurance and indemnification as required by § 312-27A(6) and (7) and an acknowledgment by the developer that it agrees that it is proceeding at its own risk if it proceeds to perform work with respect to any governmental approvals and permits it must still obtain, including, but not limited to, any permits which the applicant must obtain from PennDOT.

§ 312-28 Construction observation.

The installation of all improvements to be dedicated to South Whitehall Township or South Whitehall Township Authority,[1] or related to drainage and similar improvements determined by the Township in the direct interest of the Township shall be subject to observation by the Township Engineer and Township staff to check for satisfactory completion and maintenance. If such observation reveals that work is not in accordance with approved plans, specifications and/or these regulations, that construction is not being done in a good, workman-like manner, or that erosion and sediment controls are failing to prevent acceleration erosion or waterborne sediment from leaving the site of construction, the Township Engineer or Township staff shall immediately notify the Manager of the Community Development Department of the violations or infractions. The Township is empowered to require corrections to be made and/or order the suspension of subdivision approval and to issue a cease-and-desist order, which may include any or all of the following sanctions: 1) that no lot in the subdivision shall be conveyed; 2) that all construction on any lots for which a building permit has been issued shall cease; and 3) that no further building permits or certificates of occupancy for any lot shall be issued. In addition to the foregoing, the Township Engineer and Township staff are authorized to make periodic physical observations of all subdivisions and land developments under construction in the Township. In addition, the Township Engineer shall be responsible for reviewing and approving field construction or any special requirements which may be imposed by the Board of Commissioners at the time of approval of a land development and/or a subdivision plan. The Township Engineer shall report to the Board of Commissioners in writing periodically as to the status of construction and as to the status of any maintenance or bonding responsibilities which extend beyond the completion date for any subdivision and/or land development.

A. The cost of all legal services for the negotiations, preparation, modification or review of any legal agreements relating to a subdivision, whether finally approved or not, and all costs of engineering, including but not limited to field observations, will be paid to the Township by the developer to reimburse the Township for the services of the Township Engineer and Solicitor.

B. In no case shall any Township road or facility 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 a representative of the Township Engineer may be present at the time the work is to be done.

C. The Township Engineer shall be notified at least three working days in advance of starting, and immediately after each of the following phases of the work has been completed, so that he or his representative may observe the work.

(1) Grading of rights-of-way and open space areas to be dedicated to the Township.

(2) Grading of subgrade, installation of subbase, and checking forms after they are set for sidewalks and curb ramps.

(3) Preparation of road subgrade.

(4) Preparation of road subbase.

(5) Setting curb and gutter forms.

(6) Road paving — after each coat in the case of tack coat and sealing.

(7) Installation of storm drainage pipe, swales, and other drainage structures and during backfilling.

(8) Construction of detention/retention basins.

(9) Installation of sanitary sewer structures, laterals, mains and appurtenances, and treatment plants.

(10) Installation of subsurface absorption areas according to standards established by the Department of Environmental Protection, Chapters 71, 72 and 73 of Title 25 the Pennsylvania Code.

(11) Existing roadway trench restoration.

(12) Installation of water mains, laterals and appurtenances, and wells and pumping storage facilities.

D. The Township Geotechnical Consultant shall be notified at least three working days in advance of starting, and immediately after each of the following phases of the work has been completed, so that he or his representative may observe the work.

(1) Sinkholes.

(2) Infiltration facilities.

(3) Infiltration area construction.

E. Final inspection. When the developer has installed all the required improvements, a final inspection shall be made by the Township Engineer and staff, Geotechnical Engineer, and developer or developer's representative to determine whether the work is satisfactory and in substantial compliance with the approved final plan drawings and the specifications. The general condition of the site shall also be considered.

(1) When the developer has completed all of the necessary and appropriate improvements listed in the agreement(s) required by § 312-27 and/or shown on the recorded plan or plan to be recorded, or on the supporting documents, the developer shall notify the Township Manager and Manager of the Community Development Department, in writing, by certified or registered mail, of the completion of the aforesaid improvements and shall send a copy thereof to the Township Engineer.

(2) The Township Manager or Manager of the Community Development Department shall within 10 days after receipt of such notice direct and authorize the Township Engineer to inspect all of the aforesaid improvements.

(3) The Township Engineer shall thereupon file a report, in writing, with the Township Board of Commissioners, and shall promptly mail a copy of the same to the developer by certified or registered mail.

(4) The Engineer's report shall be made and mailed within 30 days after receipt by the Township Engineer of the aforesaid authorization from the Township; 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, of their action with relation thereto.

(6) If the Board of Commissioners or Township Engineer fails to comply with the time limitation condition contained herein, all improvements will be deemed to have been approved and the developer shall be released from all liability pursuant to its agreement relative to construction and installation of the improvements contained in the developer's request, but not any agreement relative to the correction, remedy, repair, refurbishment, reconstruction, reinstallation, maintenance, replacement and performance of such maintenance to the improvements as may be necessary.

(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 required improvements will be made by the Township Engineer and Township staff to determine whether the improvements have been constructed to acceptable standards of workmanship, with acceptable materials and maintained to withstand reasonable use.

(1) The maintenance inspection shall take place no sooner than 14 months or no later than 17 months after the day the Township Engineer and the Township Manager or Board of Commissioners gives the final approval on all required improvements.

(2) Within 10 days of maintenance inspection, the Township Engineer shall report, in writing, his findings to the Township Board of Commissioners and to the developer granting approval or disapproval, each with reasons for action.

(3) The developer shall be notified 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 these regulations as if such repairs were the original installation of the improvements.

(b) An extension of time to repair improvements may be granted by the Township Board of Commissioners upon written request of the developer.

[1] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

§ 312-29 Release of performance security.

The Township shall release the performance security received under § 312-27B, providing:

A. Installation of all required improvements passes the inspection of the Township Engineer and Township staff under § 312-28E and F.

B. Such Township Engineer and Manager approval is obtained within one year of the date fixed in the final subdivision agreement for completion of all required improvements.

(1) An extension of such time period may be granted by the Township Board of Commissioners upon written request of the developer.

C. The developer has paid the Township for all costs which are the developer's obligation under this chapter or the agreement relative to construction and installation of the improvements.

D. The developer has supplied maintenance security under the terms of § 312-27F and the as-built plans required by these regulations, including signed and sealed documentation regarding completion of post-construction stormwater management BMPs.

E. If the form of the performance security and agreement relative to developer's security permits portions of the performance security to be released as portions of the required improvements are installed and are approved by the Township Engineer, the commencement of the maintenance period shall be delayed until all of the required improvements identified in the agreement relative to construction and installation of the improvements have been approved as complete by the Township Engineer and Township staff unless the project is phased.

F. As the work of installing the required improvements proceeds, the developer may request that the Township release, from time to time, such portions of the financial security necessary for payment to the contractor performing the work. Any such request shall be in writing, addressed to the Township, and the Township shall have 45 days from receipt of such request within which to allow the Township Engineer to provide written documentation to the Board of Commissioners that the improvements have been completed in accordance with the approved plan. This request by the developer shall include a list of quantities of improvements installed as part of this specific request. If the Township fails to act within the forty-five-day period, the Township shall be deemed to have approved the release of funds as requested. The Township may, prior to final release at the time of receipt of written documentation from the Township Engineer that the improvements have been completed satisfactorily, require retention of 10% of the estimated cost of the aforesaid improvements. An independent 15% maintenance retainer shall not be released until the financial security for the maintenance period referenced in § 312-27F has been posted.

§ 312-30 Release of maintenance security.

The Township shall release the maintenance security received under § 312-27F providing:

A. The condition of the required improvements listed in the agreement relative to the correction, remedy, repair, refurbishment, reconstruction, reinstallation, maintenance, replacement and performance of such maintenance to the improvements passes the inspection of the Township Engineer under § 312-28E and meets with his approval; and

B. Such Township Engineer approval is obtained within 18 months after the day the Township Engineer and Township Manager give the developer the final approval on all required improvements, excepting shade trees, for which a two-year maintenance period is mandated pursuant to § 312-40D.

(1) An extension of such time period may be granted by the Township Board of Commissioners upon written request by the developer.

§ 312-31 Dedication of required improvements.

The Board of Commissioners may require that any or all improvements, including but not limited to roads and stormwater management facilities, remain in private ownership, with the maintenance responsibility placed on individual lot owners, a homeowners' association or similar entity, or an organization capable of carrying out such maintenance responsibilities. Prior to the release of the maintenance security by the Township, all improvements, easements and rights-of-way which are to be dedicated to the Township or Authority,[1] as applicable, as shown on the final plan, shall be dedicated to the Township by the delivery of a special warranty deed or bill(s) of sale, as appropriate, conveying the same to the Township in fee simple, plus the developer's attorney's opinion of record title pursuant to § 312-27A(3) 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 Township Board of Commissioners.

[1] Editor's Note: The Township Authority was dissolved 5-3-2017 by Ord. No. 1021.

§ 312-32 Failure to comply.

In addition to the remedies provided in Article VII for violations of this chapter, the Township's rights in the event of a developer's default shall include the following.

A. Failure to comply with the requirements of inspection will be grounds for revocation of the final approval until the developer has corrected the defects, and constitutes a violation of this chapter, thereby subjecting the developer to the penalties set forth in § 312-46. Failure to obtain final inspection approval shall also be a basis for the revocation of the approval of the final plan of the subdivision by the Township Board of Commissioners, and shall be a basis for enforcing the remedies under § 312-46, and for seeking recovery under the performance security and/or maintenance security.

B. In the event that any required subdivision improvements have not been installed or maintained as required by this chapter, by the agreements between the Township and the developer or in accordance with the approved final plat, the Township may enforce any performance security and/or maintenance security by appropriate legal and equitable remedies. If proceeds of such performance security and/or maintenance security are insufficient to pay the cost of installing or making repairs or corrections to all of the required subdivision improvements covered by said security, the Township may, at its option, install, repair and/or correct 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 installation, repair or correction of 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, repair and/or correction of the improvements covered by such security, and not for any other municipal purpose.

§ 312-33 Sale or leasing of lots or space; erecting buildings.

The sale of lots in a subdivision, the leasing of space or lots in a subdivision, the issuance of permits to erect, alter or repair any building upon land in a subdivision, and the erection of a building in a subdivision shall be permitted only in accordance with § 312-43.